U.S. v. Kilgore, 71-3559

• Decision Date: 02 September 1975
• Docket Number: No. 71-3559,71-3559
• Citation: 518 F.2d 496
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Hay KILGORE and Sam Green, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 496

518 F.2d 496

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Hay KILGORE and Sam Green, Defendants-Appellants.

No. 71-3559.

United States Court of Appeals Fifth Circuit.

Sept. 2, 1975.

James Edward Green, Van Nuys, Cal., for Kilgore.

E. David Rosen, Miami, Fla., for Green.

Robert W. Rust, U. S. Atty., Miami, Fla., Sidney M. Glazer, John J. Robinson, Attys., Dept. of Justice, R. H. Wallace, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before RIVES, GEWIN and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

Kilgore and Green were convicted by a jury of conspiring to violate and of violating 18 U.S.C. § 1952, which prohibits the use of a facility in interstate commerce for gambling activity. The evidence was that Kilgore had transmitted information by telephone from California to Green in Florida. Green then transmitted this information to local bookmakers. The evidence was presented at trial in the form of recordings of the conversations which had been intercepted by federal agents. The defendants had moved to suppress these recordings, alleging that there were illegalities committed in the application for the wiretap order and in its execution. After the trial judge struck references to a prior wiretap from both the application and the affidavit, he still found that sufficient probable cause remained in the application and supporting affidavit to uphold the order allowing the wiretap, that the application was sufficient in its other respects and that the wiretap had been carried out legally. On this basis he refused to suppress the evidence gathered through the interception.

Kilgore and Green appeal their conviction, alleging that their trial was illegally infected by the trial judge's refusal to suppress the recordings. We believe that the trial judge made the right decision and therefore affirm the conviction. We will limit our discussion to three issues raised by appellants, since the other points they raise are without merit.

A. Authorization for the Application for a Wiretap :

In United States v. Giordano, 1974, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, and United States v. Chavez, 1974, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380, the Supreme Court said that only the United States Attorney General or an Assistant Attorney General may authorize a federal agent to apply to a judge for a wiretap order in order to comply with 18 U.S.C. § 2516(1), which provides that the Attorney General or an Assistant may give the authorization. A memorandum submitted by the government, allegedly initialled by then Attorney General John Mitchell, indicates compliance with this requirement in the instant case. The memorandum to an Assistant Attorney General reads in part: "Pursuant to the power conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise that power (to authorize an application) for the purpose of authorizing William L. McCulley to make the above-described application." The Government also submitted an affidavit from Sol. Lindenbaum, the Executive Assistant to the former Attorney General, in which he says that Mitchell approved the request to make application for an interception and that the initials on the memorandum are those of Mitchell.

The appellants contend, however, that these pieces of evidence are not enough to show compliance with 18 U.S.C. § 2516(1). They try to distinguish Chavez on the ground that Mitchell himself submitted an affidavit there, which indicated that he had approved the application, whereas here we only have an affidavit from his assistant.

But the statute does not require that the Attorney General both actually approve the application and provide the courtroom evidence that he gave the approval. Resolution of the evidentiary question which arises when the identity of the authorizing agent is contested is not covered by statutory guidelines. In the absence of a statutory mandate ordinary rules of evidence apply.

It is clear that under traditional rules of evidence the testimony of Lindenbaum as to the genuineness of Mitchell's initials is sufficient to admit the Mitchell memorandum to prove that the Attorney General authorized the application:

(I)t is generally held that anyone familiar with the handwriting of a given person may supply authenticating testimony in the form of his opinion that a writing or signature is in the handwriting of that person. Adequate familiarity may be present if the witness has seen the person write, or if he has seen writings purporting to be those of the person in question under circumstances indicating their genuineness. Examples of the latter situation include instances where the witness has . . . been present in an office or other place where genuine writings of a particular person in the ordinary course of business would naturally be seen.

McCormick on Evidence § 221 (2 ed. 1973). See also Federal Rule of Evidence 901(b)(2); Paccon, Inc. v. United States, 1968, 399 F.2d 162, 185 Ct.Cl. 24.

Lindenbaum, by his status as Executive Assistant to the Attorney General, established a prima facie case of familiarity with documents that the Attorney General would have initialled. His reliability was not contested by the appellants. Thus he is competent to prove the fact that Mitchell initialled the authorization. While here the verification came by way of affidavit and not direct testimony, the appellants made no objection to that procedure below.

We therefore believe that the evidence that Mitchell himself authorized the application was sufficient and that the trial judge did not have to suppress the wiretap results on this basis. We note too that the same result has been reached by two other Circuits in which the evidence presented was an authorization purportedly signed by Mitchell together with a verifying affidavit from Lindenbaum. See United States v. Brick, 8 Cir. 1974, 502 F.2d 219; United States v. Martinez, 6 Cir. 1974, 498 F.2d 464.

B. Identification of Suspect Parties in the Application :

Appellants contend that the application to the judge for a wiretap order was deficient in that 18 U.S.C. § 2518(1)(b)(iv) was violated. That section requires that the application supply "the identity of the person, if known, committing the offense and whose communications are to be intercepted," and also says "(e)ach order authorizing or approving the interception of any wire or oral communication shall specify (a) the identity of the person, if known, whose communications are to be intercepted." In the present case, paragraph 3 of the application reads: "This application seeks authorization to intercept wire communications of Samuel Green and others as yet unknown concerning offenses enumerated in Section 2516 of Title 18, United States Code ....