478 F.2d 512 (9th Cir. 1973), 72-2240, United States v. Chavez

Docket Nº:72-2240.
Citation:478 F.2d 512
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Umberto Jose CHAVEZ et al., Defendants-Appellees.
Case Date:February 28, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 512

478 F.2d 512 (9th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellant,


Umberto Jose CHAVEZ et al., Defendants-Appellees.

No. 72-2240.

United States Court of Appeals, Ninth Circuit.

February 28, 1973

John J. Robinson, Atty. (argued), Dept. of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellant.

William L. Osterhoudt (argued), Andre T. Laborde, Peter G. Keane, San Francisco, Cal., James Giller, Oakland, Cal., Jerald H. Wilhelm, Newark, Cal., Earle A. Partington, Deputy Federal Public Defender, San Francisco, Cal., Clinton White, J. Bradley Klemm, Murray Petersen, Claude Allen, Oakland, Cal., Paul Alvarado, San Francisco, Cal., for defendants-appellees.

Before BARNES, BROWNING, and DUNIWAY, Circuit Judges.

Page 513

DUNIWAY, Circuit Judge:

This case is in most respects similar to United States v. King, 9 Cir., 1973, 478 F.2d 516, decided today. However, it differs in one important respect.

Umberto Chavez, James Fernandez, and ten others were indicted for conspiring to import and distribute heroin in the United States, a violation of 21 U.S.C. §§ 173, 174. Chavez and Fernandez were also charged with various activities prohibited by 18 U.S.C. § 1952. The government's case was largely derived from two wiretaps, one of Fernandez' telephone in Union City, California, and one of Chavez' telephone in Fremont, California. The district court held that these wiretaps had been conducted in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and ordered their fruits suppressed. The government appeals under 18 U.S.C. § 3731; we affirm.

The procedures by which the Fernandez tap was authorized are identical to those described in United States v. King, supra. As in King, the application to the district judge identified Assistant Attorney General Will Wilson as designated by the Attorney General under 18 U.S.C. § 2516 to authorize the application. It was accompanied by a Will Wilson letter substantially the same as that in King. As in King, the District Judge's order identified Wilson as the person authorizing the application. As in King, practically everything stated in the Wilson letter is false. As in King there are affidavits by Harold Shapiro, Sol Lindenbaum and Will Wilson. There is no affidavit by former Attorney General Mitchell, but this is immaterial because the Lindenbaum affidavit fully discloses that the Attorney General had chosen not to designate an Assistant Attorney General to authorize applications for interceptions, but had required that all such applications be referred to him for consideration. It also discloses that it was Lindenbaum, not Mitchell, who approved the application. As in King, there is a Memorandum, purportedly from Mitchell but actually from Lindenbaum, to Wilson. The relevant content of all of these papers is practically identical to the content of those in King. This is the proverbial "spotted cow" case. As to the Fernandez tap, the order must be affirmed for the reasons stated in King.

However, the Chavez tap presents the issue that we expressly reserved in King, namely, whether misidentification of the person who authorized the application for a wiretap requires suppression of its fruits. 478 F.2d at 503 n. 4. In the application by the Justice Department attorney Merten to the District Judge there is the same recital about Wilson as in King and there is the same Wilson letter. There is the same identification of Wilson in the Judge's order. The Wilson letter is just as false as that in King. As in King, there are affidavits. One is by Henry E. Petersen, who was at the time a Deputy Attorney General in charge of the Criminal Division of the Department of Justice. It is substantially the same as the Shapiro affidavit in King. The Lindenbaum affidavit is like that in King, but, as to the Chavez tap, it says:

"On February 16, 1971, and February 25, 1971, the Criminal Division of the Department of Justice addressed to the Attorney General requests for approval of authorization to apply for interception orders with respect to certain telephones in California. The first request related to a telephone in Fremont, California, allegedly used by Umberto Jose Chavez and others. The second related to a telephone in Union City, California, allegedly used by a person identified only as 'Pelone' and others. In each instance, the request was accompanied by copies of the proposed affidavit, application, and order, as well as a recommendation for approval from the Criminal Division.

"With respect to the first, the Attorney General on February 18, 1971, approved the request that the authorization

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