United States v. King

• Decision Date: 28 February 1973
• Docket Number: 72-1628,72-1594 to 72-1602.,No. 72-1593,72-1593
• Citation: 478 F.2d 494
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Michael KING, aka Richard Hansen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

478 F.2d 494 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Richard Michael KING, aka Richard Hansen,^* Defendants-Appellants.

Nos. 72-1593, 72-1628, 72-1594 to 72-1602.

United States Court of Appeals, Ninth Circuit.

February 28, 1973.

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Paul G. Evans (argued), La Jolla, Cal., Michael S. Hegner (argued), San Diego, Cal., Douglas R. Reynolds (argued), of Holt, Rhoades & Hollywood, San Diego, Cal., Kevin J. McInerney (argued), of McInerney, Milchen & Frank, San Diego, Cal., Artie G. Henderson (argued), San Diego, Cal., Charles R. Khoury, Jr. (argued), San Diego, Cal., Mobley M. Milam, William Zumwalt, James Hagerstrom, of Public Defenders, Inc., Frank V. Gregorcich, San Diego, Cal., for defendants-appellants.

E. Mac Amos, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., John J. Robinson, Atty., Dept. of Justice (argued), Washington, D. C., for plaintiff-appellee.

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and JAMESON,^** District Judge

DUNIWAY, Circuit Judge:

King and ten others appeal from their convictions under 21 U.S.C. §§ 176a, 841, 846, 952, 960, 963 of conspiring to illegally import and to distribute marijuana in the United States. Various of the defendants were also convicted under 18 U.S.C. § 1403(a) for using communications facilities in furtherance of the conspiracy. The government's case was largely derived from a tap of King's telephone, purportedly conducted pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Act), 18 U.S.C. §§ 2510-20.

We hold that defendants Light and Virginia Pope do not have standing to challenge the legality of the wire-tap, and affirm their conspiracy convictions. We reverse the convictions of the other defendants.

I. Validity of the wire-tap.

The principal issue in this case is the validity of the wire-tap of King's telephone. The defendants make a shotgun challenge to the legality of the tap, arguing that its fruits should be suppressed pursuant to 18 U.S.C. § 2515. Having concluded that the wire-tap was improperly authorized, we deal only with that contention. We first set out the relevant provisions of the Act, and then compare them with what was done in these cases.

A. The requirements of the Act.

Section 2511 outlaws all wire-tapping, and all disclosures of tapped communications, except for those specifically authorized by the Act. Section 2512 outlaws wire-tapping devices, mailing or transporting them in interstate commerce, and advertising them, with certain specific exceptions. Both sections prescribe substantial criminal penalties. Section 2513 authorizes confiscation of unlawful devices.

Section 2515 provides, in pertinent part:

"Prohibition of use as evidence of intercepted wire or oral communications.

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . .

. . . . . .

. . . if the disclosure of that information would be in violation of this chapter."

And Section 2518(10) (a) implements Section 2515:

"Any aggrieved person in any trial, hearing, or proceeding in or before any court . . . of the United States . . . 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."

Sections 2516-18 contain elaborate provisions for the authorization of wire-taps in criminal investigations. They are restrictive rather than expansive in their terms. Section 2516 limits the use of wire-taps to investigations of certain crimes only. Section 2517 provides for limited use of intercepted communications by law enforcement officers. Section 2518 prescribes, in elaborate and generally restrictive detail, the contents of applications for orders authorizing wire-taps, the findings to be made by the judge to whom application is made, the contents of his order, and restrictions upon what may be intercepted and how the order may be carried out. We quote the provisions of these sections directly pertinent to this case.

Section 2516(1) provides:

"(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize the 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."¹

Section 2518(1) provides:

"(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant\'s authority to make such application. Each application shall include the following information:

(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;

(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communication sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;

(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) a statement of the period of time for which the interception is required to be maintained. . . ."

Subsection (3) of Section 2518 prescribes the findings that the judge must make. In essence, they track the quoted provisions of subsection (1). Subsection (4) prescribes, in considerable detail, the contents of the judge's order approving a tap. These also track the provisions of subsection (1), and include the following:

"(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; . . . ."

Subsection (5) contains provisions limiting the duration of any authorized tap, including the following:

"Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days."

Subsections (8) and (9) prescribe methods of assuring the accuracy of transcriptions of what is heard, preservation of records, and preconditions to their use in evidence.

B. What happened in this case.

On March 20, 1971 Charles Fanning, an attorney of the Department of Justice, applied to the District Court for the Southern District of California for an order authorizing a tap of King's telephone.² The application recites:

"3. 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, 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 attached letter addressed to Fanning, reads:

"This is with regard to your request for authorization to make application pursuant to the provisions of Section 2518 of Title 18, United States Code, for an order of the court authorizing the U.S. Customs Agency Service to intercept wire communications to and from telephone number XXX-XXX-XXXX, subscribed to by Richard Michael King under the name of Richard Hansen and located in the residence of Richard Michael King, address 2002 First Avenue, Apartment No. 3, San Diego, California, in connection with the investigation into possible violations of 21 U.S.C. 176a by Richard Michael King and others as yet unknown.

"I have reviewed your request and the facts and circumstances detailed therein and have determined that probable cause exists to believe that Richard Michael King and others as yet unknown have committed and are committing offenses enumerated in Section 2516 of Title 18, United States Code, to wit: violations of 21 U.S.C. 176a. I have further determined that there exists probable cause to believe that the above person will make use of the above-described telephone in connection with those offenses, that wire communications concerning the offenses will be intercepted, and that normal investigative procedures are unlikely to succeed.

"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 power 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 U.S. Customs Agency Service to intercept wire communications from the above-described telephone for a period of twenty (

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