U.S. v. Johnson

• Decision Date: 21 December 1982
• Docket Number: 82-1164 and 82-1336,Nos. 82-1163,s. 82-1163
• Citation: 696 F.2d 115,225 U.S.App.D.C. 33
• Parties: UNITED STATES of America v. Gerald F. JOHNSON, Appellant. UNITED STATES of America v. Thomas JOHNSON, Appellant. UNITED STATES of America v. Edward T. WOOTEN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 115

696 F.2d 115

225 U.S.App.D.C. 33

UNITED STATES of America v. Gerald F. JOHNSON, Appellant.

UNITED STATES of America v. Thomas JOHNSON, Appellant.

UNITED STATES of America v. Edward T. WOOTEN, Appellant.

Nos. 82-1163, 82-1164 and 82-1336.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 17, 1982.

Decided Dec. 21, 1982.

As Amended Dec. 21, 1982.

Roger C. Spaeder, Washington, D.C., with whom Richard Stern, Washington, D.C. (appointed by this Court) was on the brief, for appellants in Nos. 82-1163 and 82-1164.

William J. Garber, Washington, D.C. (appointed by this Court), for appellant in No. 82-1336.

Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and C. Madison Brewer, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before WRIGHT, MIKVA, and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

Separate opinion, concurring in part and dissenting in part, filed by Circuit Judge MIKVA.

HARRY T. EDWARDS, Circuit Judge:

These three appeals seek the reversal of convictions, based largely on the fruits of electronic surveillance authorized under the District of Columbia Code ("D.C.Code"), ¹ for violations of the federal Controlled Substances Act. ² Because the appellants present common questions concerning the Government's compliance with the D.C.Code's wiretapping provisions, we resolve all three appeals in this opinion. For the reasons set forth below, we reject each of the grounds on which the appellants urge suppression of the electronically obtained evidence, ³ and we affirm the convictions.

I. BACKGROUND

On June 9, 1980, Assistant United States Attorney C. Madison Brewer applied to District Judge Joyce Hens Green for an order permitting the Metropolitan Police Department to intercept communications to and from appellant Wooten's home phone concerning "the unlawful possession, manufacture and sale of narcotic drugs" in violation of the D.C.Code. ⁴ Because the supporting affidavit was submitted by a nonfederal official, Detective William Larman, and the surveillance was to be conducted by the local police, the application was made under the D.C.Code rather than under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. Secs. 2510-2520 (1976 & Supp. IV 1980). ⁵ Judge Green was informed, however, that, if the wiretap was successful, "evidence ... [would] be presented to a Federal Grand Jury for its consideration of violations of 21 U.S.C. Secs. 841(a), 843(b), and 846 (distribution and possession with intent to distribute, use of a telephone facility, and conspiracy)." ⁶

Before filing his application, Brewer submitted the proposed order and supporting documentation to United States Attorney Charles Ruff for his approval. Although Ruff did not approve Brewer's application in writing, the record reveals, ⁷ and the appellants conceded in the oral argument before this court, that Ruff actually authorized the application. Pursuant to established Justice Department policy, ⁸ Ruff then directed Brewer to seek the approval of the Attorney General or a specially designated Assistant Attorney General. ⁹ Assistant Attorney General Phillip Heymann subsequently authorized the application in a letter to Ruff, which Brewer appended to the document filed with Judge Green. ¹⁰ Notwithstanding the incorrectness of Brewer's statement that "[t]he memorandum of authorization signed by Mr. Ruff is attached to this application," ¹¹ Judge Green entered an order permitting wiretapping by the Metropolitan Police, specifically noting probable cause for local narcotics offenses relating to heroin and cocaine trafficking. ¹²

During the period covered by the June Order, the Metropolitan Police intercepted a large number of calls discussing narcotics trafficking and at least one call referring to Preludin (phenmetrazine), a nonnarcotic schedule III controlled substance, ¹³ arrested three persons, and seized 1600 tablets of Preludin. Because the goals of the intercept had not been fully realized, Brewer applied for an extension of the Order on July 9. The Justice Department's internal authorization procedure for this application paralleled that used for the June Application, ¹⁴ and Judge Green's Order recited that the interception had been authorized by "Assistant Attorney General ... M. Carr Ferguson, and his designee, ... Charles F.C. Ruff, U.S. Attorney for the District of Columbia." ¹⁵

Like the initial request for permission to wiretap, the July Application informed Judge Green that federal prosecutions were likely. ¹⁶ The accompanying affidavit, moreover, indicated that the wiretap had provided evidence of trafficking in heroin, cocaine, Preludin, and other drugs, and had enabled officers to seize a large quantity of Preludin. ¹⁷ Nevertheless, Judge Green's Order did not explicitly mention Preludin; like the original Order, it referred to "a narcotic operation involving heroin and cocaine." ¹⁸

When the period of interception authorized by the July Order expired on August 8, 1980, the tapes were prepared for sealing and placed in a police safe in a condition that ensured that they would not be tampered with or disclosed. ¹⁹ They were not judicially sealed, however, until August 13, four-and-one-half days later. The principal reason for the delay was that Judge Green was unavailable. Brewer did attempt to contact District Judge John Penn, the motions judge to whom he believed the matter had been referred, but this effort was frustrated by the emergency appeals that occupied Judge Penn's schedule. Brewer made no effort to contact other judges at either their offices or their homes.

On March 31, 1981, the appellants were indicted by a federal grand jury as members of a conspiracy to distribute and to possess with intent to distribute Preludin in violation of 21 U.S.C. Sec. 846 (1976). Appellants Gerald Johnson and Wooten were also charged with possessing Preludin with an intent to distribute and using a telephone to commit and facilitate the crimes, in violation of 21 U.S.C. Secs. 841(a) and 843(b) (1976). After moving unsuccessfully to suppress the evidence derived from the wire intercepts, ²⁰ the appellants were convicted as charged in stipulated nonjury trials. These appeals, which challenge District Judge John Pratt's denial of the motion to suppress, followed. ²¹

II. DISCUSSION

Appellants urge suppression of the wiretap evidence and reversal of their convictions on the basis of a number of alleged violations of the D.C.Code. They argue that (1) Brewer's applications for permission to intercept their conversations were not properly authorized, (2) Judge Green lacked jurisdiction to approve electronic surveillance in an investigation of local offenses conducted solely by local officials, (3) the availability of other effective investigative techniques rendered wiretapping unnecessary, (4) the intercepted communications were improperly used to secure convictions for offenses not targeted for investigation, (5) the Government failed adequately to explain its delay in sealing the tapes upon the termination of the surveillance, and (6) the United States Attorney did not comply with the D.C.Code's annual reporting requirement. We will address these contentions in order. Before doing so, however, we must expound the standards governing the suppression of intercepted communications under the D.C.Code.

A. Standards Governing Suppression

1. Introduction

An "aggrieved person" ²² may secure the suppression of wire or oral communications intercepted pursuant to the D.C.Code and evidence derived therefrom if:

(1) the communication was unlawfully intercepted;

(2) the order of authorization or approval under which it was intercepted is insufficient on its face;

(3) the interception was not made in conformity with the order of authorization or approval;

(4) service was not made as provided in section 23-547; or

(5) the seal prescribed by section 23-549(a) is not present and there is no satisfactory explanation for its absence. ²³

The challenges raised in these appeals implicate only two of these potential grounds for suppression. One concerns subsection (1), which requires suppression only if communications are "unlawfully intercepted." ²⁴ Before turning to the particular grounds for suppression, we will first seek to elucidate the meaning of "unlawfully intercepted."

The other challenge concerns subsection (5), which requires a determination whether the Government offered a "satisfactory explanation" for the delay in securing a judicial seal for the tapes. This second ground will be discussed in Part II.B.4. infra.

2. The Meaning of "Unlawfully Intercepted"

In construing the phrase "unlawfully intercepted," we look first to the statutory language that Congress used to express its intent. ²⁵ Fidelity to Congress' literal language, always a primary goal of statutory construction, is especially important in interpreting the D.C.Code's wiretapping provisions, which constitute a comprehensive scheme for regulating the interception of wire and oral communications. ²⁶ The statute's broad scope justifies our assumption that Congress drafted the District's wiretapping law, like its federal counterpart, "with exacting precision." ²⁷ As a result, "the exact words of the statute provide the surest guide to determining Congress' intent." ²⁸

The meaning of the phrase "unlawfully intercepted," however, is not self-evident, and nowhere in either the wiretapping statute or its legislative history did Congress undertake to define it. ²⁹ The Conference Report, for example, specified the grounds for suppression, but did not explain them. ³⁰ And while the House Report indicated that "[t]he proposed sections conform virtually word for word with the corresponding sections of the federal wiretap...