U.S., In re

• Citation: 10 F.3d 931
• Decision Date: 23 November 1993
• Docket Number: No. 520,D,520
• Parties: In re UNITED STATES of America, Petitioner. ocket 93-3074.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 931

10 F.3d 931

62 USLW 2378

In re UNITED STATES of America, Petitioner.

No. 520, Docket 93-3074.

United States Court of Appeals, Second Circuit.

Argued Sept. 3, 1993.

Decided Nov. 23, 1993.

Andrew Frey, Washington, DC (Mayer, Brown & Platt, of counsel), for respondent.

Cheryl L. Pollak, Asst. U.S. Atty., E.D.N.Y. (Zachary W. Carter, U.S. Atty., E.D.N.Y., Peter A. Norling, Asst. U.S. Atty., of counsel), for petitioner.

Before: FEINBERG, CARDAMONE and ALTIMARI, Circuit Judges.

FEINBERG, Circuit Judge:

The United States petitions under the All Writs Act, 28 U.S.C. Sec. 1651, and Rule 21 of the Federal Rules of Appellate Procedure for a writ of mandamus to the United States District Court for the Eastern District of New York, Edward R. Korman, J. The petition requests a determination of the authority of a district court to delegate to a federal magistrate judge the power to review applications by law enforcement officials for orders authorizing electronic eavesdropping pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2521 (Title III). The petition requests, in the alternative, an order directing respondent Judge Korman to review such applications personally. For the reasons set forth below, we grant mandamus and order respondent Judge Korman not to delegate review of Title III applications to federal magistrate judges and to review personally an application now pending.

I. Background

In February 1992, respondent Judge Korman was serving in the Miscellaneous Part of the district court, where he was responsible for the review of applications for Title III orders. By an opinion and order dated February 14, 1992, respondent announced his intention to refer all such applications to United States magistrate judges. See In re United States Attorney, 784 F.Supp. 1019, 1028 (E.D.N.Y.1992). At the request of the United States, however, Judge Korman stayed implementation of his order until October 10, 1992 ¹ and signed the then pending Title III application of the United States Attorney for the Eastern District of New York. The United States then petitioned this court for mandamus review of Judge Korman's order. This court denied the petition in an order dated March 23, 1993. Upon the United States' motion for clarification, the order was modified on June 14, 1993 to state that the petition was denied because no On June 30, 1993, Judge Korman referred another application by the United States Attorney to a magistrate judge. The United States now seeks mandamus review of this order. This court accepted briefs from the parties and heard oral argument. ²

application had been referred to a magistrate.

II. Availability of Mandamus

This court's order of March 23, 1993, as modified June 14, 1993, denied petitioner's earlier mandamus petition because there was no wiretap application then pending before a magistrate judge. Because such an order is now pending, the issue has become ripe for review.

Mandamus is an extraordinary remedy that this court does not grant lightly:

the petitioner must show (1) the presence of a novel and significant question of law; (2) the inadequacy of other available remedies; and (3) the presence of a legal issue whose resolution will aid in the administration of justice.

In re United States, 903 F.2d 88, 89 (2d Cir.1990) (citing In re Von Bulow, 828 F.2d 94, 97-100 (2d Cir.1987)). We find that the petition by the United States meets these stringent criteria.

First, the case presents a novel and significant issue. Respondent appears to be the only judge in this circuit, if not in the nation, to delegate the review of Title III orders to a federal magistrate judge. As for significance, this court has recognized that "the scope of a Magistrate's authority is a significant issue in federal criminal litigation." In re United States, 903 F.2d at 89. Moreover, the disposition of applications for wiretapping orders implicates serious issues of privacy under the Fourth Amendment.

Second, petitioner has no alternative remedies capable of effectively protecting its substantial interests. Electronic surveillance involves major criminal investigations and requires a significant expenditure of government resources. Petitioner thus has a strong interest in ensuring the admissibility of evidence it gathers by electronic surveillance. Suppression on the ground that surveillance was authorized by an invalid Title III order would result in a significant waste of government resources. Furthermore, the government as parens patriae has an interest in avoiding illegal invasions of its citizens' privacy.

Moreover, because of the unusual procedural posture of this proceeding, petitioner has no other adequate remedy. If petitioner is unable to obtain review of the basic legal issue now, presumably either the pending Title III application or another one referred by respondent to a magistrate in the future will be approved by a magistrate and petitioner will proceed with a criminal investigation. If an indictment results, the defendant, of course, would have the right to move to suppress any evidence obtained through the wiretap. Petitioner would then be placed in the impossible situation of either agreeing with defendant that the wiretap was not properly authorized or of taking a legal position that it believes is incorrect. Cf. In re United States, 903 F.2d 88.

Finally, resolution of this issue will aid in the administration of justice. Mandamus is appropriate "when the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice." In re Von Bulow, 828 F.2d at 99 (quoting Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C.Cir.1975)). In this case, mandamus will eliminate uncertainty as to the delegation of Title III review, thus avoiding future challenges to wiretapping orders approved by magistrate judges, which may require retrial or the suppression of evidence.

III. The Merits

We turn now to the merits of the case. Whether district judges may delegate the review of Title III orders to magistrate

judges depends ultimately upon the congressional intent expressed in Title III and in the Federal Magistrates ³ Act, Pub.L. No. 90-578, 82 Stat. 1107 (codified as amended at 28 U.S.C. Secs. 631-639). In analyzing this issue, however, another statute is highly relevant, as will be seen below. ⁴

A. Relevant statutes

The 90th Congress enacted Title III in June 1968. The statute requires law enforcement officers seeking permission to intercept wire, oral or electronic communications to apply in writing to a "judge of competent jurisdiction." 18 U.S.C. Sec. 2518(1). The statutory definition of that term includes only "a judge of a United States district court or a United States court of appeals" and "a judge of any court of general criminal jurisdiction of a State," who is authorized by state law to enter wiretapping orders. 18 U.S.C. Sec. 2510(9). Title III contains a number of provisions designed to tightly control the use of this prosecutorial tool and to safeguard the privacy interests of those subjected to a wiretap. See generally United States v. Giordano, 416 U.S. 505, 514-23, 94 S.Ct. 1820, 1826-30, 40 L.Ed.2d 341 (1974). For example, an application for a wiretap order must be authorized by the Attorney General or her designees, see 18 U.S.C. Sec. 2516(1), and must be made in writing, under oath, with a statement of the applicant's authority. See 18 U.S.C. Sec. 2518(1)(a). It must also include the identity of the law enforcement officer making the application and provide a complete statement of the facts relied upon. See 18 U.S.C. Secs. 2518(1)(a)-(e). Furthermore, the right to intercept is confined to seeking evidence of only certain specified serious offenses. See 18 U.S.C. Sec. 2516(1)(a)-(o). In addition, there are stringent restrictions on the use and disclosure of the evidence obtained. The statute specifies safeguards relating to recording, minimizing and sealing the interceptions, as well as notice requirements to intercepted parties. 18 U.S.C. Sec. 2518(8)(a), (b), (d). Violations of 18 U.S.C. Secs. 2510 et seq. are punishable by imprisonment of up to five years and a fine of $10,000. 18 U.S.C. Secs. 2511(4)(a), 2512(1).

The Federal Magistrates Act was enacted in October 1968 during the same session in which Congress enacted Title III. The statute replaced the office of United States commissioner with that of federal magistrate and gave the latter all the powers theretofore exercised by the former. See Pub.L. No. 90-578, Sec. 636(a)(1) (codified at 28 U.S.C. Sec. 636(a)(1)). In addition, the statute specifically listed further powers of the newly created magistrates. See id. at Secs. 636(a)(2) and (3) (codified as amended at 28 U.S.C. Secs. 636(a)(2) and (3)). Commissioners had not been authorized to issue Title III orders, and the list enumerating powers of magistrates did not include any reference to the Title III wiretap approval procedure Congress had just created a few months before. The statute did, however, authorize a district court to assign to magistrates "such additional duties as are not inconsistent with the Constitution and laws of the United States," id. at Sec. 636(b), including but not restricted to "assistance to a district judge in the conduct of pretrial ... proceedings in ... criminal actions." Id. at Sec. 636(b)(2).

In 1976, the Magistrates Act was amended to expand the powers of magistrates. Section 636(b) was changed to read, in relevant part, as follows:

(b)(1) Notwithstanding any provision of law to the contrary--

(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by...