Application of US Authorizing Interception, etc.

• Decision Date: 28 May 1976
• Docket Number: Misc. No. 75-603.
• Citation: 413 F. Supp. 1321
• Parties: Application of the UNITED STATES of America in the matter of an order AUTHORIZING the INTERCEPTION OF WIRE COMMUNICATIONS.
• Court: U.S. District Court — Eastern District of Pennsylvania

413 F. Supp. 1321

Application of the UNITED STATES of America in the matter of an order AUTHORIZING the INTERCEPTION OF WIRE COMMUNICATIONS.

Misc. No. 75-603.

United States District Court, E. D. Pennsylvania.

May 28, 1976.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John Rogers Carroll, Philadelphia, Pa., for movant.

J. Clayton Undercofler, III, U. S. Atty., Joel M. Friedman, Donald F. Manno, Sp. Atty., Dept. of Justice, Philadelphia, Pa., for U. S. A.

OPINION AND ORDER

FOGEL, District Judge.

We are asked to rule upon a motion made pursuant to 18 U.S.C. § 2518(8)(d); this particular provision pertains to electronic surveillance and constitutes a part of the measures enacted by the Congress in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Because the case law with respect to Section 2518(8)(d) is in an early stage of evolution as to the standards to be applied by the District Court in releasing information which flows from the fruits of authorized electronic surveillance, we believe that it is important to focus upon the reasons for our determination in this case, particularly in the absence of any decision with respect to this issue by the Court of Appeals for this Circuit. Movant, through his attorney, seeks to inspect the following materials which have been obtained as a result of the application to this Court and the ensuing wiretap authorization order signed by us on July 29, 1975: (1) the recordation on tape of all communications intercepted pursuant to the July 29th Order to which movant was a party; (2) all written transcripts of these communications; (3) the Order of July 29, 1975; and (4) the applications, together with the accompanying affidavits and other papers which were filed by the United States in connection with the July 29th Order.

Movant, pursuant to an Order of this Court dated November 3, 1975, was served with an inventory relating to the authorization Order of July 29, 1975; the inventory stated, inter alia, that movant was named in the July 29th Order and/or his conversations had been intercepted.¹ He then filed this motion under 18 U.S.C. § 2518(8)(d), which deals with the inventory procedure and related disclosure motions; the pertinent part of that provision states the following:

Within a reasonable time but not later than ninety days after the filing of an application for an order of approval authorizing interception . . ., the issuing . . . 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; 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. (emphasis supplied).

A grand jury investigation was then and is now still presently in progress relative to the events and circumstances which led to the grant of the wiretap authorization Order of July 29th. Movant, who has the status of neither a defendant nor a subpoenaed witness in connection with this investigation, bases his claim for discovery of the requested material at this time on four grounds: first, he argues that the United States, through the failure to request an extension of time before the filing of the inventory, as permitted by Section 2518(8)(d), and its acquiescence in the service of the inventory which flows therefrom, has "in effect" admitted that it is timely to discuss the subjects of the interception; second, movant avers that he may, on the basis of evidence obtained through the wiretap, be the subject of prosecution by the United States, and therefore contends that he has a right to know the nature of such prospective charges; third, he urges that 18 U.S.C. § 2515 provides that evidence obtained as a result of illegal electronic surveillance must be suppressed in any judicial proceeding, including grand jury proceedings; movant claims that because he may be subpoenaed to appear before the grand jury, he has the right to examine the wiretap materials in order to determine whether illegal surveillance was in fact conducted by the Government, and if so, to be in a position to move for suppression of the fruits of such surveillance; fourth, and finally, movant cites 18 U.S.C. § 2520, which grants a right to civil damages for illegal electronic interception, and argues that he has a right to determine now whether any basis exists for such a civil suit, since the statute of limitations is running with respect to this potential claim.

The United States, in opposing the motion, states that disclosure of the requested information at this time would severely inhibit the grand jury investigation now in progress; the Government also emphasizes the current status of movant as neither a defendant nor a subpoenaed witness in further support of its request that we deny the motion.

After a careful review of the contentions of the parties, and an examination of Section 2518(8)(d), its legislative history, and relevant case law, we conclude that, at this juncture, the interest of the Government in maintaining secrecy in the grand jury proceedings outweighs movant's interest in discovery of the requested materials. Accordingly, we find that disclosure at this time is not "in the interest of justice"; the motion will therefore be denied.

Our reasons follow:

I. PROCEDURAL HISTORY OF THE CASE

On July 29, 1975, upon the application of Donald F. Manno, an attorney for the United States Department of Justice, and an authorized "investigative or law enforcement officer" within the meaning of 18 U.S.C. § 2510(7), this Court entered an Order, pursuant to Section 2518, permitting the interception of certain wire communications; the interceptions were to be executed as soon as practicable, and were in no case to extend beyond twenty days after the Order was signed, 18 U.S.C. § 2518(5); the decree also contained the minimization clause required by Section 2518(5).² The Order directed Mr. Manno to report to the Court with respect to the progress of the surveillance on the fifth, tenth, and fifteenth days of the period.

The Government in fact began to intercept communications on July 31, 1975, and terminated the operation on August 12, 1975. Reports were furnished by the Government on August 4th, August 8th, and a Final Report was submitted on August 13th. On November 3, 1975, pursuant to Section 2518(8)(d), this Court caused to be served on forty-five persons, all of whom were either named in the July 29th Order, or were parties to intercepted communications, an inventory Order which recited (1) the fact of the entry of the wiretap authorization Order; (2) the date of the Order; (3) the period of authorized interception; and (4) the fact that wire communications were in fact intercepted during the period between July 31, 1975, and August 12, 1975. Movant, one of the forty-five persons upon whom the inventory was served, subsequently filed the motion for disclosure now before us.

II. THE CONTENTIONS OF THE PARTIES

A. The Service of the Inventory

Movant's first argument for disclosure centers on the failure of the Government to seek an order postponing the service of the inventory. Section 2518(8)(d) permits the judge to grant such postponement on an ex parte showing of good cause. Since the Government did not seek such an extension in this case, movant argues, it cannot now claim that secrecy is vital to the continued effectiveness of the grand jury investigation. Rather, he urges, by willingly allowing the information contained in the inventory to become known to movant and forty-four other persons, the Government has admitted that secrecy is no longer required. The Government knew, contends movant, that the service of the inventory would give all of those persons who were served standing to seek disclosure under Section 2518(8)(d), and the Government's claim of prejudice is therefore untenable.

We do not believe this argument is valid. Movant fails to discern the critical difference between the information contained in the inventory, and the far more comprehensive detail incorporated in the materials he now seeks to inspect. The inventory required by Section 2518(8)(d) need inform the appropriate parties only of the following: (1) the fact that the application was made and the order issued; (2) the date of that Order and the period of authorized surveillance; and (3) the fact that during the period interceptions were or were not made. This bare outline of information stands in marked contrast to the sweeping data which is contained in the application, the Order, and particularly, in the communications themselves. To cite just one aspect, 18 U.S.C. § 2518(1)(b) requires that the application for a wiretap order contain:

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 communications sought to be intercepted, and (iv) the identity of the person, if known, committing the offense and whose communications are to

...