U.S. v. Turner
| Decision Date | 24 July 1975 |
| Docket Number | Nos. 73--2740,73--3575,73--3159,74--1057,73--3082,73--2937,74--1322,73--3083,73--3168,74--1085,74--1151,74--1465,73--3156,73--2959,s. 73--2740 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard TURNER, Defendant-Appellant. * |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before MERRILL, KOELSCH and KILKENNY, Circuit Judges.
Fourteen separate appeals have been consolidated for argument and disposition. They result from different jury trials and trials before the court without jury and are consolidated because they relate to the same alleged conspiracy or to substantive offenses committed pursuant to it or to facilitate its purposes, and for the further reason that all appellants assert a common grievance: that their convictions resulted from illegal telephone taps. 1
The Government alleged that on a date unknown defendant Joseph Levi Ethridge had organized and put into operation a large scale heroin and cocaine distribution scheme centered in the Beverly Hills area of Los Angeles, California; that Ethridge would obtain large quantities of these drugs from another defendant 2 and transport them to one of five residences maintained by the conspirators where they were kept under the control and custody of defendants Sharon Johnson and Sandra Woodrow; that Sharon Johnson would receive inquiries respecting purchases and refer prospective purchasers to Sandra Woodrow or Dolores Goldin; that Woodrow, in turn, would co-ordinate and direct the actual dispersal of the drugs to the purchasers with the assistance of other alleged conspirators.
Many different assignments of error are presented and the opinion-writing duties they entail have been divided among the members of the panel.
I. THE WIRE INTERCEPTIONS
On January 16 and February 2, 1973, then Attorney General Richard G. Kleindienst, by memoranda to then Assistant Attorney General Henry E. Petersen, personally authorized applications to be made by any investigative or law enforcement officer of the United States to a federal judge for orders authorizing interceptions of wire communications for a 20-day period to and from, respectively, two telephone numbers located at an address in Los Angeles 3 and two telephone numbers located at another address in Los Angeles. Assistant Attorney General Petersen then notified Irving Prager, Assistant United States Attorney for the Central District of California and Special Attorney-In-Charge, Office for Drug Abuse and Law Enforcement, Los Angeles, that Prager was authorized to make such applications. The applications were made by Prager to Judge Lucas of the United States District Court for the Central District of California, and orders were entered by Judge Lucas granting the applications. On February 6, 1973, Attorney General Kleindienst authorized an application for the continuing interception for a 10-day period of communications to and from the two telephone numbers at the first Los Angeles address. The application was made by Mr. Prager and granted by order of Judge Lucas.
Tapes were made of intercepted conversations and were, during trial, played to court and jury. Transcripts of the conversations, concededly accurate, were also furnished to aid the jury in following the recorded conversations. The conversations established in this manner constituted a substantial part of the Government's case against the alleged conspirators. The legality of the wire taps and the admissibility of the tapes and use of the transcripts are challenged on various grounds. Motions to suppress were made by all defendants and were denied. This is assigned as error.
In several respects it is contended that in the orders authorizing the interceptions and in the proceedings leading to them there was a failure to meet the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510--20.
It is contended that each memorandum of authorization from Attorney General Kleindienst to Assistant Attorney General Petersen failed to meet the requirements of 18 U.S.C. § 2516(1), in that it does not expressly appear from the memoranda that the Attorney General, prior to authorizing the interception, had reviewed any facts relating to the advisability of establishing taps on any of the listed numbers. It appears from the memoranda and affidavits that the Assistant Attorney General had made a recommendation and that the Attorney General had, without any comment, given his approval. Appellants characterize this as a 'rubber stamp' of the Assistant Attorney General's judgment. The district court declined appellants' request that the Attorney General be subpoenaed to testify or compelled to answer interrogatories concerning the extent of his review of facts and exercise of judgment in authorizing the applications.
Section 2516(1) does not expressly require such a review by the authorizing officer. It provides: 'The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for * * * an order authorizing or approving the interception of wire or oral communications * * *.' 18 U.S.C. § 2516(1). Appellants contend, however, that the statute as construed in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), contemplates that the Attorney General or specially designated Assistant Attorney General should himself review the facts asserted to justify the use of wire interception and to constitute probable cause, and on the basis of such review exercise his judgment that the tap should be sought; and that the written authorization should, on its face, reveal that such review had been made by the authorizing officer.
We do not so read those cases. The Court in Giordano held that Title III did not permit the Attorney General to delegate to any subordinate, other than a specially designated Assistant Attorney General, the power to authorize application for intercept orders. This prohibition of a delegation proper in other instances was intended by Congress to centralize 'in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques' and to ensure that '(s)hould abuses occur, the lines of responsibility (will) lead to an identifiable person.' 416 U.S. at 520, 94 S.Ct. at 1829, quoting S.Rep.No.1097, 90th Cong., 2d Sess. 96--97 (1968), U.S.Code Cong. & Admin.News, p. 2112. To these ends '(t)he mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition to any judicial order.' 416 U.S. at 515--16, 94 S.Ct. at 1827.
Once a proper authorizing officer is properly identified, however, thereby fixing on him the responsibility for a particular authorization, the basis on which, or the method by which, he gave the authorization is not, in our judgment, subject to review for compliance with § 2516(1). Rather it is to be presumed that the officer has properly exercised the judgment called for by the statute when he affixes his signature to an order authorizing an application.
We conclude that the authorization from Attorney General Kleindienst to Assistant Attorney General Petersen met the requirements of law.
Pursuant to the authorization of Attorney General Kleindienst and the notification by Assistant Attorney General Petersen, as we have noted, applications for judge's orders were made by Irving Prager. 18 U.S.C. § 2518(1) deals with the requisites of such applications. They must be in writing, upon oath or affirmation, and must state the applicant's authority. Prager's applications complied. The subsection then specifies six items of information that must be included in the applications:
(a) The identity of the officer applying and the officer authorizing. This was done.
(b) '(A) full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted * * *.'
The applications in all respects complied. The first application was for an interception at a residence on Kinglet Drive. From affidavits in support of the application it appeared that several informants of proven reliability all had stated that 'Billy' Ethridge was dealing in heroin and cocaine out of that residence. The method of operation, as described by informants, was that the buyer would leave money with Ethridge...
To continue reading
Request your trial
-
State v. Catania
...States v. Kirk, 534 F.2d 1262, 1275 (8th Cir. 1976), cert. den., 430 U.S. 906, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977); United States v. Turner, 528 F.2d 143, 156-58 (9th Cir.), cert. den., 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1975); United States v. Armocida, 515 F.2d 29, 44 (3d Cir.),......
-
Dich v. Jacquez, No. CIV S-10-0172 GEB EFB P
...Phan. However, in federal court "a conviction may be based on the uncorroborated testimony of an accomplice." United States v. Turner, 528 F.2d 143, 161 (9th Cir. 1975). See also Caminetti v. United States, 242 U.S. 470, 495 (1917) ("there is noabsolute rule of law preventing convictions on......
-
U.S. v. Smith
...interception of a wire or oral communication", 18 U.S.C. Sec. 2518(1), would be entitled to the greatest deference. United States v. Turner, 528 F.2d 143, 151 (9th Cir.1975) ("[I]t is to be presumed that the officer has properly exercised the judgment called for by the statute when he affix......
-
State v. Pottle
... ... If the district attorney had drafted the order with the precise words of the statute, this case would not be before us". The case was lost by the state because the majority [296 Or. 293] says the wiretap order was legally facially defective in four particulars: ... \xC2" ... 4 See, United States v. Turner, 528 F.2d 143, 156 (9th Cir.1975). The second variation involves listening to every conversation, but recording only pertinent conversations ... ...
-
Transmitting legal documents over the Internet: how to protect your client and yourself.
...(1992). (227.) While few cases that address e-mail exist, several cases exist in other contexts. See, e.g., United States v. Turner, 528 F.2d 143, 155 (9th Cir. 1975) ("Title III [of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. [subsections] 2510-20], in providing for j......