U.S. v. Pellicci
| Decision Date | 06 September 1974 |
| Docket Number | No. 74-1201,74-1201 |
| Citation | 504 F.2d 1106 |
| Parties | UNITED STATES of America, Appellee, v. Michael PELLICCI, Defendant-Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Joseph J. Balliro, Boston, Mass., for appellant.
Robert Henry Plaxico, Atty., Dept. of Justice, Washington, D.C., with whom James N. Gabriel, U.S. Atty., Joel M. Friedman, Sp. Atty., Dept. of Justice, Boston, Mass., and Peter M. Shannon, Jr., Atty., Dept. of Justice, Washington, D.C., were on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and CLARY, 1 Senior District Judge.
The appellant was convicted of conducting an illegal gambling enterprise, and appeals on the ground that his motion to suppress evidence obtained through electronic surveillance was improperly denied. The interception of appellant's wire and oral communications had been authorized by a district judge upon application by the government, and the substance of the appeal is the contention that the application was not approved by the Attorney General or his designate as required by 18 U.S.C. 2516(1).
Appellant first argues that the application was not in compliance with the statute because it was based upon the authority of Robert H. Bork, Acting Attorney General, rather than upon the authority of an 'Attorney General'. Section 2516(1) provides that 'The Attorney General, or any Assistant Attorney General specifically designated by the Attorney General' may authorize an application. The Attorney General and the Deputy Attorney General having resigned, Bork designated 'the Assistant Attorney General in charge of the Criminal Division.'
In our view the dispositive statute is 28 U.S.C. 508(b). Section 508(b) provides that when the offices of Attorney General and Deputy Attorney General are vacant, and in the case of absence or disability, the Assistant Attorneys General and the Solicitor General 'shall act as Attorney General', with the order of their succession determined by departmental regulation. The regulation in force at the time relevant to this case called for the Solicitor General to succeed the Deputy Attorney General. 28 C.F.R. 0.132(a). Appellant attempts to distinguish the wording of 508(b) from that of 508(a), which provides that when there is a vacancy in the office of Attorney General, the Deputy 'may exercise all the duties of that office'.
There is no basis for concluding that one 'acting' as Attorney General has fewer than all the powers of that office. The two subsections of 508 are not parallel in structure, so the fact that 'all' appears in one formulation and not in the other is without import in reaching this conclusion we also take note of 28 C.F.R. 0.132(a), which directs that when the offices of Attorney General and Deputy are vacant 'the Solicitor General shall perform the functions and duties of and act as Attorney General.' The untenable nature of the argument made by appellant becomes apparent in light of the realization that, if accepted, it would place this court in the impossible position of trying to determine which powers Bork succeeded to and which he did not. Appellant argues that...
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U.S. v. Lee
...to act when the Attorney General had resigned, and was not merely temporarily out-of-pocket, as in this case. See United States v. Pellicci, 504 F.2d 1106 (1st Cir.1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975); United States v. Halmo, 386 F.Supp. 593 (E.D.Wis.1974)......
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U.S. v. Acon, 74-1766
...1972), United States v. Boone, 348 F.Supp. 168 (E.D.Va., 1972).We note but decline to follow a contrary holding in United States v. Pellicci, 504 F.2d 1106 (1st Cir., 1974) cert. denied --- U.S. ---, 95 S.Ct. 805, 42 L.Ed.2d 821 (1974) and United States v. Vigi, 350 F.Supp. 1008 (E.D.Mich.,......
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U.S. v. Votteller, s. 76-1089
...conclude that the procedure followed by the Attorney General in this case meets the requirements of the statute. In United States v. Pellicci, 504 F.2d 1106, (1st Cir. 1974), cert. den. 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975), the Assistant Attorney General in charge of the Crimi......
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U.S. v. Camp
...than name. Several courts have considered the matter and all have answered the question in the affirmative. In United States v. Pellicci, 504 F.2d 1106 (1st Cir.1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975), the First Circuit held that "the designation of a single ......