U.S. v. De La Fuente

• Decision Date: 10 March 1977
• Docket Number: No. 75-2263,75-2263
• Parties: 1 Fed. R. Evid. Serv. 827 UNITED STATES of America, Plaintiff-Appellee, v. Bonifacio DE LA FUENTE, Ronald Albert Cardenas, George Sierra, Pat Vargas,Augie D. Sierra, and Robert Stewart, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 528

548 F.2d 528

1 Fed. R. Evid. Serv. 827

UNITED STATES of America, Plaintiff-Appellee, v. Bonifacio DE LA FUENTE, Ronald Albert Cardenas, George

Sierra, Pat Vargas,Augie D. Sierra, and Robert

Stewart, Defendants-Appellants.

No. 75-2263.

United States Court of Appeals, Fifth Circuit.

March 10, 1977.

Alan Brown, San Antonio, Tex., for De La Fuente.

Ruben Sandoval, San Antonio, Tex., for Cardenas.

Roy R. Barrera (Court-Appointed), Terrence McDonald, San Antonio, Tex., for George Sierra, Vargas and Augie Sierra.

William E. Stockey, Pittsburgh, Pa., for Stewart.

John E. Clark, U. S. Atty., John M. Pinckney, III, Asst. U. S. Atty., San Antonio, Tex., Richard S. Stolker, Dept. of Justice, Crim. Div., Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before RIVES, GOLDBERG and GEE, Circuit Judges.

GEE, Circuit Judge:

The six defendants-appellants were convicted of conspiracy to distribute heroin and cocaine in violation of 21 U.S.C. § 846 and sentenced to fifteen years' imprisonment, to be followed by ten-year special parole terms. A wiretap on the telephone at the residence of defendant Cardenas supplied much of the evidence of defendants' involvement in a large-scale conspiracy for the distribution of heroin and cocaine. All defendants claim that the wiretap evidence should have been suppressed because of improper authorization and conduct of the electronic surveillance. Defendants George Sierra, Augie Sierra, Pat Vargas, and Ronald Cardenas raise fourth amendment objections to warrantless airport searches of George's heroin-filled suitcase. Augie Sierra and Pat Vargas argue that insufficient evidence linked them to the conspiracy. Defendant Stewart claims he was denied assistance of counsel at the pretrial suppression hearing when the court refused to grant a continuance while his attorney recovered from the flu. Stewart also urges that the judge who conducted the suppression hearing should have recused himself as too biased to preside over the subsequent bench trial. Finding all of these claims of error to be without merit, we affirm the convictions of all defendants.

The Wiretap

On May 3, 1974, a special attorney for the Justice Department applied to a federal district judge for authorization to install a wire interception and pen register on telephone number 512-224-0455, located at 330 East Myrtle in San Antonio, Texas. The wiretap application was accompanied by affidavits attesting to the need for electronic surveillance and by a memorandum from the Attorney General's office signed "W. B. Saxbe," which authorized application for

the interception of wire communications for a twenty (20) day period to and from the telephone bearing number (512) 224-0455, located at 300 East Myrtle Street, San Antonio, Texas, in connection with the investigation into possible violations of Title 21, United States Code, Sections 952(a), 841(a)(1), 963, and 846, by Ronald Albert Cardenas, Thomas F. Lowery, George Donovan Sierra, Librado Miranda Rocha and Domingo Miranda Rocha, and others as yet unknown. (Emphasis supplied.) ¹

After a hearing on the application, the court issued an order authorizing the requested wiretap. The order contained the court's findings that probable cause existed to believe that the wire facility was being used in the commission of narcotics offenses and that normal investigative procedures had been tried without success or likelihood of success. The court ordered the wiretap to be terminated after evidence had been obtained as to the conspirators' identities and the nature and places of operation, or at the end of 20 days, whichever was earlier. The authorization mandated the minimization of interceptions and required reports at five-day intervals.

Thereafter, agents of the Drug Enforcement Administration installed an interception and pen register on telephone number 512-224-0455. Approximately 2300 telephone conversations were intercepted and recorded in whole or in part. Pursuant to minimization instructions given the monitoring agents, interception of those conversations deemed personal was aborted. The wiretap was terminated on May 23, 1974.

Title III of the Organized Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, provides a "comprehensive scheme for the regulation of wiretapping and electronic surveillance." Gelbard v. United States, 408 U.S. 41, 46, 92 S.Ct. 2357, 2360, 33 L.Ed.2d 179 (1972). Section 2516 permits the "Attorney General, or any Assistant Attorney General specially designated by the Attorney General" to authorize application to a federal judge for an order approving the interception of wire or oral communications in the course of investigating designated categories of crime. Section 2518 prescribes the procedural steps for an application and the findings that the court must make before approving the requested wiretap. Section 2515 provides that any communication intercepted in violation of these statutory provisions shall not be received in evidence in any trial.

Appellants claim that the wiretap evidence against them should have been suppressed because the government failed to comply with the statute in five particulars.

1. Proof of authorization by proper official. The Supreme Court in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), held that Title III strictly limits the category of public officials who may authorize a wiretap application to the Attorney General and Assistant Attorneys General specially designated by him. In holding that no other Justice Department official could approve wiretaps, the Court emphasized that "the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored." 416 U.S. at 528, 94 S.Ct. at 1832.

Relying on Giordano's insistance on personal wiretap approval by a statutorily designated official, appellants argue that the government here failed to give sufficient proof of the requisite approval, necessitating suppression of the wiretap evidence against them. At the pretrial suppression hearing, the government offered the memorandum from "The Attorney General," entitled "Authorization for Interception Order Application" and bearing the signature "W. B. Saxbe." Defendants objected unsuccessfully to introduction of the memorandum on the ground that the signature of the Attorney General had not been properly authenticated; and on appeal they urge that the lower court erred in admitting the wiretap evidence because there was no proper proof of personal authorization by the Attorney General. Defendants made no allegations and offered no proof that the Attorney General's authorizing signature was inauthentic or irregular in any way. Nonetheless, they contend that wiretap evidence obtained pursuant to a regularly-issued judicial authorization must be excluded unless the government discharges the burden of establishing proper wiretap authorization with proof admissible and admitted in suppression proceedings conducted under strict evidentiary rules. Specifically, defendants argue that the "Authorization for Application" called for by 18 U.S.C. § 2516, regular on its face, and apparently signed by former Attorney General William B. Saxbe, should have been formally authenticated in order for the trial judge properly to admit the challenged wiretap evidence.

Although defendants buttress their argument with emphasis upon the important policy of insuring the actual, personal approval of wiretap applications by a proper official, the sole legal stanchion raised to support their position is the evidence rule making authentication a necessary predicate to formal admission of documents in evidence at a trial on the merits. We of course share the concern manifested in Giordano that wiretap application authorizations receive the personal imprimatur of the attorney general or a specially designated assistant as required by statute. Mandating signature authentication especially absent any allegation or evidence or irregularity would represent, however, a cumbersome and inefficient mode of overseeing compliance with proper approval procedures. Requiring that the government "prove up" the authorizing signature of the attorney general or specially designated assistant every time it wishes to introduce wiretap evidence at a criminal trial would insure a field day for captious and costless technical objections, yet give little assurance of effectively screening out wiretap evidence obtained without the prescribed authorization. Equally important, defendants' argument that signature authentication was necessary in this case overlooks two basic evidentiary principles applicable to suppression hearings. A proper adherence to these well-established and general precepts must lead to an affirmance of the court's ruling below, unless overriding policy considerations dictate a change in long-settled rules of evidence and proof governing suppression hearings.

( a) Evidence standards in suppression hearings. The first of the pertinent evidentiary maxims ignored by defendants was recently noted and approved by the Supreme Court, observing in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), that "the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions." Id. at 173, 94 S.Ct. at 994. The Court pointed to its own confirmation of this general principle as evidenced in its proposal to Congress of Federal Rules of Evidence 104(a) and 1101(d)(1), which provide that the trial court, in resolving preliminary fact questions concerning the admissibility of evidence, is not bound by the rules of evidence. ² Noting that these rules adopted the general views of evidence authorities, the Matlock...