Application of United States

• Decision Date: 18 May 1970
• Docket Number: No. 24616.,24616.
• Parties: Application of the UNITED STATES for Relief.
• Court: U.S. Court of Appeals — Ninth Circuit

427 F.2d 639 (1970)

Application of the UNITED STATES for Relief.

No. 24616.

United States Court of Appeals, Ninth Circuit.

May 18, 1970.

Robert S. Linnell, U. S. Atty., Las Vegas, Nev., Michael DeFeo, U. S. Dept. of Justice, Washington, D. C., for the Government.

Franklin Rittenhouse, Las Vegas, Nev., Karl Berolzheimer, William J. Winger, Duane A. Feurer, Chicago, Ill., for Central Tel. Co. of Las Vegas.

Before HAMLEY, BROWNING and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge.

Pursuant to 18 U.S.C. § 2518, a provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Act), 82 Stat. 211-225, 18 U.S.C. §§ 2510-2520, the United States applied to the United States District Court for the District of Nevada for an order authorizing the interception of the wire communications of named individuals from specified telephone numbers. The Government also asked that The Central Telephone Company of Nevada (company) and an officer of the company be directed to furnish at established rates such facilities, services and assistance as are required by the Federal Bureau of Investigation, acting under the authorization, to effectuate the interception.¹

Prior to submitting the application to the district court the Government informally asked the company whether it would consent to the entry of such an order. The company responded that it would not voluntarily cooperate in such an interception. At the request of the district court, attorneys for the company and the Government appeared at an in camera hearing on the Government's application. At that hearing the company adhered to its position as stated above.

Thereafter the Government submitted to the district court a revised proposed order. This order would have directed the company to provide services and facilities as described above or, in the alternative, to show cause why it would not do so. The district court entered an order denying the application, holding: (1) the Act does not authorize a judge to compel a communications carrier to serve and assist the Federal Bureau of Investigation in carrying out the interception of wire communications applied for by the Government and approved by a court; and (2) in view of this lack of authority, if the proposed order were signed and the company elected to comply therewith, the company or its officers and employees would be subject to prosecution for a gross misdemeanor under Nevada law, namely NRS 200.610-200.690.

This appeal followed.² We called for briefs and, at the request of the Government, an in camera oral argument was held. The following questions were presented: (1) Is the company a party to this proceeding? (2) Does this court have jurisdiction to entertain the appeal and, if not, should the merits be reached by regarding the proceeding as an application for a writ in the nature of mandamus? (3) Did the district court have authority, in the exercise of its discretion, to order the company to cooperate in the interception of wire communications, assuming approval of the proposed interception were granted the Government? and (4) Is the Act unconstitutional insofar as it enables a court to authorize or approve the interception of a wire communication?

In view of the result we here reach it is not necessary to decide the first and last of these four questions.

Turning to the second question, pertaining to the jurisdiction of this court, the Government readily concedes that the Act does not expressly authorize an appeal from such a district court order. The only provision in the Act expressly authorizing appeals in connection with wire interceptions is that contained in 18 U.S.C. § 2518(10) (b). This provision specifically authorizes appeals by the United States from orders granting a motion to suppress made under section 2518(10) (a), and from orders denying an application for an "order of approval." We agree with the Government that the denials there referred to are denials of applications for approval made pursuant to section 2518(7) where, for emergency reasons, the Government has proceeded with an interception prior to obtaining court approval. The review proceeding now before us does not fall in either of these categories.

The Government points out, however, that section 2518(10) (b), expressly providing for appeals by the Government as described above, starts out with the words, "In addition to any other right to appeal * * *." Based thereon, the Government argues that it has a right to appeal under 28 U.S.C. § 1291, giving courts of appeals jurisdiction of appeals from all final decisions of the district courts. In the event we should conclude that this appeal is not authorized by section 1291, the Government asks us to treat its opening brief as an application under the All Writs Act, 28 U.S.C. § 1651, for a writ in the nature of mandamus.

We have some doubt whether the order sought to be reviewed is final in the sense contemplated by section 1291. The Government presented its application in the district court in such a way as to indicate that it was not interested in obtaining approval of the proposed wire interception unless the court would also direct the company to cooperate in effectuating the interception. The result was that, since the court decided not to order such cooperation, it did not reach the question of whether it should authorize the interception. In view of this posture of the case, if we should decide that the district court did have authority to compel such cooperation, it may turn out to be an inoperative decision because, upon remand, that court may determine not to approve the interception.³

Our doubt concerning the applicability of section 1291 also gives us pause with regard to the alternative request that we entertain the review as a mandamus proceeding under section 1651.

On the other hand, there is room for argument that, under the particular circumstances of this case, the Government was warranted in believing that it would be futile to ask for approval of the interception unless the assistance of the company could also be compelled. On this supposition, the trial court's denial of the latter request was truly dispositive of the Government's entire application, and therefore was a final decision. We frequently review district court decisions denying relief upon a particular ground, even though other grounds upon which the court might have denied relief, were not passed upon by the district court.

We also recognize that there is a substantial public interest in obtaining an early and authoritative determination of the unique and important questions presented on the merits, not only for the purpose of this case, but also for the general guidance of federal law enforcement agencies and, in the event amendatory legislation may be sought, for the assistance of the Congress. Accordingly, we have concluded to resolve the above-described doubts in favor of jurisdiction and therefore hold that this review may be entertained under section 1291.

As stated above, one ground upon which the district court relied in refusing to direct the company to serve and assist the Federal Bureau of Investigation in effectuating a judicially-approved interception of wire communications, was that the Act does not authorize a judge to enter such an order.

The Government acknowledges that Title III of the Act contains no specific provision conferring such a power. It argues, however, that this is not dispositive. The power to compel the cooperation of the telephone company, the Government urges, must be the concomitant of the power to authorize the interception, for without the former the latter is worthless.

The Government points to the Congressional findings, in section 801(c) and (d) of the Act, 82 Stat. 211, that the interception of wire communications "is an indispensable aid to law enforcement and the administration of justice," and that such interception should be allowed "only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court." The Government argues that, implicit in these findings, is the conclusion that a corporation...