U.S. v. Robertson, 73-2996

• Citation: 504 F.2d 289
• Decision Date: 15 November 1974
• Docket Number: No. 73-2996,73-2996
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles ROBERTSON, a/k/a Charlie Robertson, a/k/a Mr. Charlie, Howard Pinder, Sr., Annie McCray, Dean Lucas, and Donald Robertson, a/k/a Donnie Robertson, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 289

504 F.2d 289

UNITED STATES of America, Plaintiff-Appellee, v. Charles ROBERTSON, a/k/a Charlie Robertson, a/k/a Mr.

Charlie, Howard Pinder, Sr., Annie McCray, Dean

Lucas, and Donald Robertson, a/k/a

Donnie Robertson, Defendants-Appellants.

No. 73-2996.

United States Court of Appeals, Fifth Circuit.

Nov. 15, 1974, Rehearing and Rehearing En Banc Denied Jan. 10, 1975.

Sidney A. Soltz, Miami, Fla., for defendants-appellants.

Robert W. Rust, U.S. Atty., Lloyd Bates, Jr., Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.

THORNBERRY, Circuit Judge:

After an FBI investigation into gambling operations in the Fort Pierce, Florida area, the government charged Charles Robertson, Howard Pinder, Sr., Annie McCray, Dean Lucas and Donald Robertson with violations of the federal gambling statutes. ¹ The five waived a jury trial below, and the district court adjudged them guilty of the offenses charged. They now seek to challenge their convictions on several grounds. Their primary claim is that the Court should not have considered certain wiretap evidence. ² Appellants attack the court's decision to admit the wiretap evidence on two fronts. They claim that the Justice Department did not follow the requisite statutory procedures when authorizing the application for the wiretap, and that there was no necessity to employ a wiretap in the investigation of this gambling operation. We disagree and affirm.

In Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, Congress detailed the procedures that the Justice Department must follow in obtaining judicial authorization to intercept wire communications. Title III requires the Attorney General or a specially designated Assistant Attorney General to approve the submission of a wiretap application to the appropriate District Court. 18 U.S.C. 2516(1). 18 U.S.C. 2518(1)(a) provides that the application shall include, among other information, the identity of the approving officer. Appellants contend that the Justice Department procedure in this case failed to meet the identification requirements of 2518(1)(a), requiring suppression of the evidence obtained through the use of the tap. They base their challenge on the peculiar procedures that the Justice Department employed.

On November 18, 1971, Assistant United States Attorney George Kokus sought a wiretap authorization from the Honorable James Lawrence King of the United States District Court for the Southern District of Florida. Judge King authorized the wiretap on the premises of appellant Howard Pinder Sr. on the basis of the application and FBI Agent Keith Underwood's supporting affidavit. The application recited that Acting Assistant Attorney General Henry Petersen had authorized Mr. Kokus to seek the wiretap authorization, and that Attorney General Mitchell had specially designated Mr. Petersen to approve the application. In fact Attorney General Mitchell himself had approved the wiretap application.

We think that the Supreme Court decision in United States v. Chavez, 1974, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 compels rejection of appellants' challenge. In Chavez the application recited that the Attorney General, pursuant to 18 U.S.C. 2516, had specially designated Assistant Attorney General Will Wilson to authorize the applicant attorney to seek the wiretap order. In accordance with standard Justice Department procedure, Attorney General Mitchell had actually made the decision to approve the request, but the form letter communicating this approval recited that the Assistant Attorney General was the approving officer. The Supreme Court reversed a lower court decision excluding the wiretap evidence. The Court did not sanction the Justice Department procedure, but held that since the Attorney General himself had in fact authorized the wiretap, the evidence was still admissible. Justice White's majority opinion stated: 'We think it cannot be seriously contended that had the Attorney General been identified as the person authorizing the application, rather than his subordinate, Assistant Attorney General Wilson, the district judge would have had any greater hesitation in issuing the interception order.' 416 U.S. at 572, 94 S.Ct. at 1855, 40 L.Ed.2d at 390-391. Since the misidentification of the officer authorizing the wiretap did not substantially and directly affect the fulfillment of the congressional intent behind Title III, the Court found the communications were not 'unlawfully intercepted' within the meaning of18 U.S.C. 2518(10)(a)(i). ³

Appellants attempt to distinguish Chavez on the basis that Henry Petersen was only an Acting Assistant Attorney General. Since 2516 does not in terms allow Acting Assistant Attorneys General to authorize wiretap applications, the appellants claim the application here was facially invalid. We do not find any merit in the proposed distinction. It is true that the Supreme Court recently held that Title III does require suppression of wiretap evidence for certain nonconstitutional procedural defects. United States v. Giordano, 1974, 505 U.S. 416, 94 S.Ct. 1820, 40 L.Ed.2d 341. The Giordano Court stated:

Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device. We have already determined that Congress intended not only to limit resort to wiretapping to certain crimes and situations where probable cause is present but also to condition the use of intercept procedures upon the judgment of a senior official in the Department of Justice that the situation is one warranting their use.

416 U.S. at 527, 94 S.Ct. at 1832, 40 L.Ed.2d at 360. Certainly the congressional intent is satisfied when the head of the Justice Department personally reviews the proposed application and determines that the situation is appropriate for employing this extraordinary investigative measure. The district court properly rejected this attack on the wiretap evidence. See United States v. Chavez, supra 416 at 574-579, 94 S.Ct. at 1856-1857, 40 L.Ed.2d at 392-394.

Appellants also claim that the government failed to show that other investigative procedures had been tried and failed or that they would not be reasonably likely to succeed or would be too dangerous as required by 18 U.S.C. 2518(1)(c). ⁴ The authorizing judge relied on the affidavit of FBI Agent Underwood to determine the need for the wiretap. Appellants challenge the sufficiency of his affidavit on the grounds that: (1) it misrepresents his experience in bolita operations; ⁵ (2) surveillance by physical means or use of other undercover agents was possible; (3) the information sought was not essential to the investigation.

We first note that 2518(1)(c) and (3)(c) must be read in a common sense fashion. They are 'simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.' United States v. Kahn, 1974, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225, 236 n. 12. Their purpose 'is not to foreclose electronic surveillance until every other imaginable method of investigation had been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques.' United States v. Pacheco, 5th Cir. 1974, 489 F.2d 554. The provisions contemplate that 'the showing be tested in a practical and commonsense fashion.' S.Rep.No. 1097, 90th Cong., 2d Sess., 100 U.S.Code Cong. & Admin.News 1968, pp. 2112, 2190. W...