U.S. v. Donovan

• Decision Date: 17 March 1975
• Docket Number: No. 74-1553,74-1553
• Citation: 513 F.2d 337
• Parties: UNITED STATES of America, Appellant, v. Thomas W. DONOVAN et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 337

513 F.2d 337

UNITED STATES of America, Appellant, v. Thomas W. DONOVAN et al., Appellees.

No. 74-1553.

United States Court of Appeals Sixth Circuit.

March 17, 1975.

As Amended May 5, 1975.

U. S. Atty. Frederick M. Coleman, Edwin J. Gale, Cleveland, Ohio, Marc P. Richman, Atty., App. Section, Crim. Div., Dept. of Justice, Washington, D. C., Shirley Baccus-Lobel, Arlington, Va., for appellant.

Carmen A. Policy, Youngstown, Ohio, Robert W. Ent, Cincinnati, Ohio, Christopher F. Nardi, Cleveland, Ohio, Bradford Gearinger, Akron, Ohio, for appellees.

Before PHILLIPS, Chief Judge, ENGEL, Circuit Judge, and CECIL, Senior Circuit Judge.

PHILLIPS, Chief Judge.

This case involves the admissibility of evidence obtained through court-authorized telephone wiretaps. District Judge Robert B. Krupansky suppressed evidence against the five named defendants-appellees on the ground that Government agents failed to comply with two statutory requirements. The Government appeals.

Essentially the basic question on this appeal is whether Congress meant what it said when it enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, permitting court-authorized interception of telephone conversations under carefully prescribed restrictions.

In United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 1856, 40 L.Ed.2d 380 (1974), the Supreme Court said:

"(W)e did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful' . . . suppression is not mandated for every violation of Title III, but only if 'disclosure' of the contents of the intercepted communications, or derivative evidence, would be in violation of Title III."

We hold that the District Court correctly found that disclosure in the present case was a violation of Title III. We reject the Government's contention that non-compliance with the requirements of this statute can be condoned or excused on the theory that it was "inadvertent" and "unintentional" or constituted "mere technical violations."

I.

The first breach of the statute involves 18 U.S.C. § 2518(1)(b)(iv), which requires that 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 which shall include, among other specified information, "the identity of the person, if known, committing the offense and whose communications are to be intercepted."

The District Court held that the defendants Donovan, Robbins and Buzzacco were "known" to the Government within the meaning of the statute and that failure to include their names in the applications and orders contravenes the statute and necessitates the suppression of the contents of intercepted communications and the evidence derived therefrom as to these three defendants.

The second breach of the statute involves a failure to comply with the inventory requirements of 18 U.S.C. § 2518(8)(d), which provides that:

"(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of

(1) the fact of the entry of the order or the application;

(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and

(3) the fact that during the period wire or oral communications were or were not intercepted.

The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed."

The District Court held that the defendants Merlo and Lauer were not served with notices of inventory and that in the interest of justice their communications must be suppressed.

These five defendants-appellees ¹ were among seventeen persons indicted for their participation in an illegal gambling business. The two count indictment charged conspiracy and substantive violations of 18 U.S.C. §§ 371 and 1955. A large part of the evidence which supported these indictments was gathered pursuant to an order authorizing the interception of wire communications issued by the District Court on November 28, 1972. This order was granted upon application of the Organized Crime and Racketeering Section of the Department of Justice and after consideration of a forty-six page affidavit submitted by a special agent of the Federal Bureau of Investigation. The affidavit indicated that reliable informants had named certain persons engaged in illegal gambling activities and that this information was corroborated by physical surveillance and telephone company records.

The order, which was issued by Chief District Judge Frank J. Battisti, authorized special agents of the FBI:

"To intercept wire communications of Albert Kotoch, Joseph Anthony Spaganlo, Ernest L. Chickeno, Raymond Paul Vara, George F. Florea, Suzanne Veres and others, as yet unknown concerning the above described offenses to and from the telephones (described in the order)."

This order terminated on December 12, 1972.

On December 26, 1972, an extension of the November 28 order was sought and approved. This new order dropped two of the four previously approved intercepts. In addition, an order authorizing intercepts for another telephone number was sought and approved. These orders terminated on January 5, 1973.

On February 21, 1973, the court ordered the service of inventory notice upon 37 individuals known to have been parties to the intercepted conversations, as required by 18 U.S.C. § 2518(8)(d). The Government subsequently checked its records and discovered that two additional parties should have been given notice. On September 11, 1973, an amended order was filed which served inventory notice on the two additional parties. Neither submission to the District Judge named defendants Merlo and Lauer, although they were known to the Government as participants in the gambling activity whose communications had been intercepted.

II.

Congress has provided a statutory basis for suppression of wiretap evidence. 18 U.S.C. § 2515 prohibits the introduction of wiretap evidence or its fruits "if the disclosure of that information would be in violation of this chapter." The specific grounds for suppression are spelled out in 18 U.S.C. § 2518(10)(a); an aggrieved person may move to suppress when:

"(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."

In affirming an order to suppress pursuant to these provisions of the statute in United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974), the Supreme Court said:

"(W)e think Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device."

In United States v. Chavez, supra, 416 U.S. at 580, 94 S.Ct. at 1858, the Supreme Court held that Title III did not mandate suppression under the circumstances of that case, but said:

"Though we deem this result to be the correct one under the suppression provisions of Title III, we also deem it appropriate to suggest that strict adherence by the Government to the provisions of Title III would nonetheless be more in keeping with the responsibilities Congress has imposed upon it when authority to engage in wiretapping or electronic surveillance is sought."

III.

Title III requires that when the Government applies for a wiretap authorization, the "identity of the person, if known, committing the offense and whose communications are to be intercepted" must be disclosed specifically. 18 U.S.C. § 2518(1)(b)(iv).

There can be no doubt on the record before us that Donovan and Robbins were "known." The Government contends that Buzzacco was not "known," but, for the reasons hereinafter set forth, we agree with the District Court that the name of Buzzacco, along with the names of Donovan and Robbins, should have been disclosed to the District Judge.

Our concern in this case is whether an intercept of a conversation with three persons, known to be committing the crime for which the intercept is authorized, yet unnamed in the wiretap application and order is "unlawfully intercepted" within the meaning of 18 U.S.C. § 2518(10)(a)(i).

Title III seeks to strike a balance between the mixed advantages and dangers of electronic surveillance. Those same features which make wiretaps so valuable as a weapon against the operations of organized crime also pose a substantial threat to individual privacy. To resolve the "tension between these two stated congressional objectives, . . . the starting point, as in all statutory construction, is the precise wording chosen by Congress in enacting Title III." United States v. Kahn, 415 U.S. 143, 151, 94 S.Ct. 977, 982, 39 L.Ed.2d 225 (1974).

The literal language of the identification requirement leaves no question as to when the Government...