U.S. v. St. Laurent, 75-1091

Decision Date22 August 1975
Docket NumberNo. 75-1091,75-1091
Citation521 F.2d 506
PartiesUNITED STATES of America, Appellant, v. Anthony M. ST. LAURENT et al., Defendants-Appellees.
CourtU.S. Court of Appeals — First Circuit

Reuben H. Wallace, Jr., Atty., Dept. of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty., and John R. Tarrant, Sp. Atty., Dept. of Justice, Boston, Mass., were on brief, for appellant.

Morris M. Goldings, Boston, Mass., with whom Mahoney, Atwood & Goldings, Boston, Mass., was on brief, for Arthur Venios, appellee.

Martin G. Weinberg, Jeffrey J. Binder, and Crane, Inker & Oteri, Boston, Mass., on brief for Anthony M. St. Laurent and William H. Burbidge, defendants-appellees.

Charlotte Anne Perretta and Keating, Perretta & Pierce, Boston, Mass., on brief for Gary Wall, appellee.

Melvin S. Louison, Brockton, Mass. (joining in the brief for appellee, Arthur Venios), for William Duarte, appellee.

Joseph J. Balliro, Boston, Mass. (joining in the brief for appellee, Arthur Venios), for Joseph Badway, appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal by the Government from the granting of a motion to suppress evidence obtained from wiretaps, See 18 U.S.C. § 2518(10)(a). * The background situation is like that in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1973). The court orders authorizing the wiretaps were based on a form letter purportedly but not actually from Assistant Attorney General Will Wilson, Id. at 566. After indictments were returned, the Government filed affidavits conceding that Will Wilson had neither signed the letter nor made the judgment to seek wiretap authority. However, Sol Lindenbaum, the Attorney General's Executive Assistant, stated that Attorney General John N. Mitchell, by personally initialled memoranda, had himself authorized the taps in question. A copy of the Attorney General's purported authorizing memorandum was tendered with the Lindenbaum affidavit. The described routines were in all essentials like those recounted in Chavez.

The question on this appeal is simply the district court's authority to refuse to accept the Government's affidavits, there being no question that if the underlying facts were as therein represented, the Government would be entitled to prevail under Chavez.

In granting the suppression motion, the district court reflected awareness of the Supreme Court's decision in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1973), and, we may assume, of the companion case, Chavez itself. The district court emphasized in open court that its ruling was based on a lack of satisfaction

"that the Government has carried the burden of proving by clear evidence that there was a proper authorization by any of the officials specified in the statute. . . .

. . . My decision is not an issue of or a question of law, it is a factual decision. I am not satisfied on the evidence as a matter of fact. I want that to be clear."

Therefore what is now relevant is not the ancient history of the mismanaged Will Wilson authorizations all set forth at length in Chavez and Giordano but simply whether the district court abused its discretion in rejecting the Government's affidavits so hastily. To put the court's action in perspective, we shall briefly sketch the history of this issue in the case.

The Will Wilson imbroglio, together with the disclosure that the Attorney General himself had purportedly authorized the very same wiretap in a hand-initialled memorandum, first emerged in affidavits of Acting Assistant Attorney General Henry Peterson and Sol Lindenbaum dated November 23, 1971. These included Lindenbaum's assertion,

"On July 16, 1970, the Attorney General approved a request for authority to apply for an interception order in this case. Attached is a copy of his personally initialed memorandum of that date to Will Wilson, the Assistant Attorney General in charge of the Criminal Division, specially designating him to authorize Edward F. Harrington to apply for an interception order in this matter."

The memorandum, on government stationery, and bearing Mitchell's typewritten name and title, bore the handwritten initials "JNM".

On February 14, 1973, the sufficiency of these affidavits was challenged at a hearing before the district judge then handling the case (who was not the judge who later presided at the suppression proceedings). Defendants had moved to dismiss the indictments for, among other things, the false Will Wilson authorization. The judge stated that more specific evidence of proper authorization was called for, suggesting that an affidavit from Mitchell himself might be in order, and in any event that Lindenbaum's affidavit as worded was too sparse. He gave the Government time to produce something better. Thereafter the Government filed further, more elaborate affidavits from Lindenbaum and Peterson which covered, in addition, certain other related taps. Lindenbaum's affidavit now included a paragraph explaining that in the course of his duties, which he said included routinely reviewing wiretap authorization requests and making recommendations to the Attorney General thereon, he "became familiar with the . . . actions taken by Attorney General Mitchell on such requests. Also in the course of such duties, I became familiar with Mr. Mitchell's signature and signed initials." Mr. Lindenbaum stated that attached copies of memoranda were "personally initialled" by the Attorney General and that Attorney General Mitchell had "approved the requests" on the dates specified. There was also submitted a copy of an affidavit of Mitchell's prepared for another proceeding confirming generally the office policies described by Peterson and Lindenbaum, but not stating that Mitchell personally had authorized any of the taps in this case.

On October 16, 1972, the district judge entered an order denying the motions to dismiss the indictment on the grounds of illegal wiretap authorizations. In the order, he specifically found,

"After hearing, and upon consideration of all submitted affidavits (citing Fed.R.Crim.P. 12(b)(4), which authorizes affidavits), arguments of counsel, and pertinent legal authorities, the Court finds and rules that former Attorney General John N. Mitchell personally approved the disputed wiretap authorizations in this case in conformity with 18 U.S.C. § 2516(1)."

Thereafter, the docket reflects that on April 5, 1973, the court stayed a hearing on motions to suppress on the issue of authorization pending the outcome of the Giordano case and also granted at least one of the defendants' motions for reconsideration of the court's action on the motions to dismiss. While this subsequent action lessens the impact of the court's earlier ruling on the motions to dismiss, it does not show that the prior judge was necessarily retreating from his factual finding that Mitchell had personally approved the authorizations. Rather the decision seems to have been made to await the Supreme Court's resolution of the controlling legal issues.

The next relevant hearing was the one from which this appeal was taken, on December 18, 1974. It was prefaced by motions of defendants questioning the accuracy of the Lindenbaum affidavits and pointing out, citing Giordano, that Lindenbaum had conceded on occasion placing Mitchell's initials on memoranda. Counsel said it was their intention to inquire deeply into whether Mitchell himself and not Lindenbaum had authorized the taps. At the December 18 hearing, the court asked the Government what it intended to do "other than what is in the file" to satisfy its burden of establishing authorization by "clear" evidence. When the attorney for the Government replied "nothing," the court allowed the motions to suppress, stating that Mr. Lindenbaum was not an "expert on handwriting, nor do I think mere office familiarity is enough . . . I am not going to accept his affidavit." The court mentioned that in other cases "we have had a specific affidavit from Mr. Mitchell with respect to particular authorization."

On January 20, 1975, the Government moved for reconsideration, this time presenting an affidavit from former Attorney General Mitchell stating unequivocally that the memoranda and initials were his own, and that he had authorized the particular wiretaps. This affidavit was in all substantial respects the same as the affidavit filed by Mitchell in Chavez, see 478 F.2d 512, 514 (9th Cir. 1973), just as was Lindenbaum's earlier affidavit, Id. at 513-14 (except, of course, the documents described the particulars of different wiretaps). The court denied the motion, stating,

"I do not accept Mr. Mitchell's affidavit made so long after the event and in Mr. Mitchell's present circumstances. It is too little and too late. . . ."

We are of the opinion that the district court moved somewhat too peremptorily. We do not question its authority to insist upon adequate and clear proof by the Government, and we recognize that different judges, within reasonable limits, may want more or less evidence to satisfy themselves. Thus at the December 18 hearing, we think the court could have demanded an affidavit from Mitchell and announced its intention to suppress if one was not provided forthwith. Still it must be recognized that a previous judge had found the Lindenbaum-Peterson documents to be sufficient by themselves to show authorization by Mitchell, and in several cases, courts have accepted Lindenbaum's and Peterson's affidavits, standing alone and without Mitchell's further affidavit, as adequate. See United States v. Quintana, 508 F.2d 867 (7th Cir. 1975); United States v. Brick, 502 F.2d 219 (8th Cir. 1974). Under the circumstances, we do not think the Government acted...

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