In re US Attorney
| Decision Date | 14 February 1992 |
| Docket Number | Misc. No. 92-43. |
| Parties | In re Applications of UNITED STATES ATTORNEY FOR ORDERS PURSUANT TO TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968. |
| Court | U.S. District Court — Eastern District of New York |
Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., for applicant.
Pursuant to an administrative order of Chief Judge Platt, I am serving in the Miscellaneous Part from February 10, 1992 to February 23, 1992. One of the duties of the judge assigned to the Miscellaneous Part is the review of applications for electronic eavesdropping orders pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-21 (1988). Because it is my intention to refer such applications to a United States magistrate judge, I address here the issue whether the referral of a Title III application to a United States magistrate judge is authorized by the Federal Magistrates Act.
The Federal Magistrates Act of 1968, Pub.L. No. 90-578, 82 Stat. 1107, codified as amended at 18 U.S.C. §§ 3401-3402; 28 U.S.C. §§ 631-39 (1988 & Supp. I 1989), abolished the office of United States commissioner and replaced it with a judicial officer serving directly below the level of the district court. Congress imposed significant requirements to ensure the competency and impartiality of these judicial officers and it gave them significantly—indeed, dramatically—more responsibility than it had previously conferred on United States commissioners.
The experience under former section 636(b) demonstrated that magistrates were fulfilling their intended function of assisting "the district judge to the end that the district court judge could have more time to preside at the trial of cases." H.R.Rep. No. 1609, 94th Cong., 2nd Sess. 6 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6166. Congress was disturbed, however, by a series of cases that construed former section 636 in a manner that limited the "additional duties" that could be conferred on magistrates. See e.g. Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974); T.P.O. v. McMillen, 460 F.2d 348 (7th Cir.1972); Ingram v. Richardson, 471 F.2d 1268 (6th Cir.1972). Accordingly, former section 636(b) was rewritten in 1976 to restate and clarify "the Congressional intention that the magistrate should be a judicial officer who, not only in his own right but also under general supervision of the court, shall serve as an officer of the court in disposing of minor and petty criminal offenses, in the preliminary or pretrial processing of both criminal and civil cases, and in hearing dispositive motions and evidentiary hearings when assigned to the magistrate by a judge of the court." H.R.Rep. No. 1609, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News 6162, 6165.
There are two clauses of the revised section 636(b) that are particularly relevant to the issue whether an application for an eavesdropping order may be referred to a United States magistrate judge: The "pretrial matters" clause and the "additional duties" clause. An analysis of the language and legislative history of these two clauses, which were enacted after the Omnibus Crime Control and Safe Streets Act of 1968, provides compelling support for referral of these applications to a United States magistrate judge.
The "pretrial matters" clause of the Federal Magistrates Act provides that, "notwithstanding any provision of law to the contrary ... any pretrial matter pending before the court," except for certain dispositive motions, may be referred to a United States magistrate judge. 28 U.S.C. § 636(b)(1)(A). Because this clause is applicable to ex parte proceedings that take place prior to the commencement of a criminal case, United States v. Diaz, 922 F.2d 998 (2d Cir.1990), the principal objection to the referral of an application for a Title III order to a United States magistrate judge derives from the fact that these judicial officers are not among the judges of competent jurisdiction in whom Congress explicitly vested the authority to issue such orders — namely, judges of the United States district courts and the courts of appeals.1 18 U.S.C. §§ 2510(9)(a) and 2516(1).
Of some relevance to this objection is United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). There at issue was 18 U.S.C. § 2516(1), as originally enacted, which empowered the to "authorize an application to a federal judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications" by federal investigative agencies. Omnibus Crime Control and Safe Streets Act of 1968 § 2516(1), Pub.L. No. 90-351, 82 Stat. 197, 216 (1968).2 Relying on 28 U.S.C. § 510, which authorized the delegation of "any function of the Attorney General" to "any other officer" or "employee" of the Department of Justice, the Solicitor General argued that the power to authorize a Title III application could be delegated by the Attorney General to a subordinate other than an Assistant Attorney General. In rejecting this argument, the Supreme Court wrote:
Despite § 510, Congress does not always contemplate that the duties assigned to the Attorney General may be freely delegated. Under the Civil Rights Act of 1968, for instance, certain prosecutions are authorized only on the certification of the Attorney General or the Deputy Attorney General, "which function of certification may not be delegated." 18 U.S.C. § 245(a)(1). Equally precise language forbidding delegation was not employed in the legislation before us; but we think § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. This interpretation of the statute is also strongly supported by its purpose and legislative history.
416 U.S. at 514, 94 S.Ct. at 1826.
The conclusion the Supreme Court reached in Giordano could arguably apply to the question whether the authority to issue eavesdropping orders, which Title III vests in judges of the United States District Court and the United States Court of Appeals, may be delegated to United States magistrate judges. Such an extension of the holding in Giordano, however, could not be reconciled with two critical aspects of the Federal Magistrates Act. Unlike 28 U.S.C. § 510, the Federal Magistrates Act was adopted after the enactment of Title III and it contains a clause that permits the delegation of specified authority vested in district court judges notwithstanding any existing law to the contrary. More significantly, a careful analysis of the legislative history demonstrates that the failure of Congress to include United States magistrate judges among the judges authorized to issue Title III orders does not provide a sufficient basis for inferring that Congress intended to preclude the delegation of that responsibility pursuant to the subsequently enacted Federal Magistrates Act.
The Organized Crime Control and Safe Streets Act of 1968 and the Federal Magistrates Act of 1968 were enacted by the 90th Congress. A common thread running through both is the finding of Congress that defects in the commissioner system had undermined the competence, integrity and professionalism of the United States commissioners. Commissioners were paid under a fee system according to the number and nature of the matters they handled; many served only on a part-time basis; one third of commissioners were non-lawyers; most commissioners were required to use their own resources to meet the expenses of their office; commissioners received little guidance in performing their duties; and commissioners were grossly underpaid and were subject to removal without cause, making it difficult to attract qualified applicants. H.R.Rep. No. 1629, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4252, 4255-56; McCabe, The Federal Magistrates Act of 1979, 16 Harv.J.Legis. 343, 347 (1979).
The sorry state of the commissioner system was summed up by Senator Tydings during the course of the debates leading to the passage of the Federal Magistrates Act:
One's first impression, Mr. President, is that it is certainly less than a happy situation that a person who has not been admitted to the bar—and who therefore, has no trial experience, and probably little if any familiarity with the Federal Rules of Criminal Procedure or with the rules of evidence—should be permitted to discharge responsibilities that call for the exercise of trained legal judgment. The decisions that commissioners must routinely make often involve some of the most difficult points of...
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