United States v. Askins

• Citation: 351 F. Supp. 408
• Decision Date: 27 October 1972
• Docket Number: 71-0557-B.,Crim. No. 71-0556-B
• Parties: UNITED STATES of America v. Julius ASKINS et al. UNITED STATES of America v. Herman W. NEUMYER et al.
• Court: U.S. District Court — District of Maryland

351 F. Supp. 408

UNITED STATES of America v. Julius ASKINS et al.

UNITED STATES of America v. Herman W. NEUMYER et al.

Crim. Nos. 71-0556-B, 71-0557-B.

United States District Court, D. Maryland.

October 27, 1972.

COPYRIGHT MATERIAL OMITTED

George Beall, U. S. Atty., and James E. Anderson and Jeffrey S. White, Asst. U. S. Attys., for United States.

Raymond M. Faby, Baltimore, Md., for defendant Neumyer.

Phillip M. Sutley, Baltimore, Md., for defendants K. Ward, S. Eckert, F. Eckert, Peat and Bollottiere.

Howard L. Cardin, Baltimore, Md., for defendants L. Shade, J. Shade and Kalski.

Stanley Cohen, Baltimore, Md., for defendants E. Maddox, B. Maddox and Robinson.

James B. Carson, Baltimore, Md., for defendants E. and M. Johnson.

Peter G. Angelos, Baltimore, Md., for defendant Pasquariello.

Philip D. Quint, Baltimore, Md., for defendant Marciante.

E. Thomas Maxwell, Jr., Baltimore, Md., for defendant Askins.

Philip Goodman, Baltimore, Md., for defendant Davis.

BLAIR, District Judge.

MEMORANDUM OPINION AND ORDER ON PRETRIAL MOTIONS

Defendants were indicted under Sections 1955 and 2 of Title 18 of the United States Code, both for operating and for aiding and abetting the operation of a gambling business in violation of state law. See Annotated Code of Maryland, Art. 27, §§ 240, 356. Pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2510 et seq. hereinafter cited as Title III, the government applied for and obtained authorization to intercept telephone communications of some of the defendants on certain designated telephones. Some of the defendants have moved to suppress the wiretap evidence and some oppose the giving of voice exemplars sought by the United States. Additionally, several of the defendants have moved to dismiss the indictments.

I. Wiretap

A careful examination of all motions filed discloses the existence of five principal grounds which are relied upon to support the motions to suppress. These are: (1) that Title III is unconstitutional on its face or as applied; (2) that the government did not comply with the authorization procedures required by Title III; (3) that the government had not exhausted its other investigative procedures prior to its use of the wiretap; (4) that there was insufficient probable cause to justify the court in issuing an order authorizing the wiretap; and (5) that the government, in violation of Title III and the authorization order, failed to minimize the number of communications that were intercepted.

The defendants' first contention, that Title III is unconstitutional on its face or as applied, is neither new nor unique. Although the question has not been resolved by the Supreme Court, it has been considered on numerous occasions by the lower federal courts. So far as this court knows, with but one exception all federal courts ruling on the validity of Title III have concluded that it is constitutional. See United States v. Cox, 462 F.2d 1293 (8th Cir. 1972); United States v. Cox, 449 F.2d 679 (10th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136 (1972); United States v. Focarile, 340 F.Supp. 1033 (D.Md.1972); United States v. LaGorga, 336 F.Supp. 190 (W.D.Pa. 1971); United States v. King, 335 F. Supp. 523 (S.D.Cal.1971); United States v. Lawson, 334 F.Supp. 612 (E. D.Pa.1971); United States v. Becker, 334 F.Supp. 546 (S.D.N.Y.1971); United States v. Perillo, 333 F.Supp. 914 (D.Del.1971); United States v. Leta, 332 F.Supp. 1357 (M.D.Pa.1971); Donlon v. United States, 331 F.Supp. 979 (D.Del.1971); United States v. Scott, 331 F.Supp. 233 (D.D.C.1971); United States v. Cantor, 328 F.Supp. 561 (E.D. Pa.1971); United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla.1971); United States v. Escandor, 319 F.Supp. 295 (S. D.Fla.1970), rev'd. on other grounds sub nom. United States v. Robinson, 468 F. 2d 189 (5th Cir. 1972). Contra, United States v. Whitaker, 343 F.Supp. 358 (E. D.Pa.1972). Reiteration here of the principles enumerated in the above-cited cases would serve no useful purpose. It is sufficient to say that this court finds the reasoning of these cases persuasive and now adds its name to the growing list of tribunals which have held that Title III does not violate the Constitution of the United States. For the reasons set forth later in this opinion, it likewise holds that Title III is not unconstitutional as applied to defendants.

The defendants, in their second line of attack, assert that their motion to suppress should be granted because the government did not comply with the authorization procedures contained within Title III. The applicable section of that Title, 18 U.S.C.A. § 2516, requires that either the Attorney General or a specially designated Assistant Attorney General authorize the requesting prosecuting attorney to apply to a court of competent jurisdiction for an order allowing the interception of telephonic communications.

The facts surrounding the instant authorization and application follow a pattern which has become familiar because of the number of cases in which similar procedures have been attacked. Accompanying the application to a judge of this court was a letter of January 12, 1971 to David E. Holt, Esquire, Special Attorney, Strike Force, Department of Justice. This letter which, purportedly, was over the signature of Will Wilson, Assistant Attorney General in Charge of the Criminal Division of the Department of Justice, recited that the wiretap application was authorized under powers specially delegated by the Attorney General of the United States.

Prior to the hearing on the defendants' motions, Sol Lindenbaum, Executive Assistant to the Attorney General of the United States, filed an affidavit indicating that Attorney General Mitchell had approved, in writing, the application for wiretap in each of these cases but that the originals of these memoranda of approval had been lost. Also filed was an affidavit from Henry E. Peterson, who was then a Deputy Assistant Attorney General in the Criminal Division, which stated that he had affixed Will Wilson's signature to the letters authorizing application to the court. This affidavit further asserted that Peterson believed that the signing of Will Wilson's name was merely a ministerial act which he had been expressly authorized to perform.

Apparently, the lost records were recovered after the hearing on the defendants' motions had been completed. On July 19, 1972, John Mitchell, formerly Attorney General of the United States, filed an affidavit in which he asserted that he had, in fact, personally authorized the wiretap application in question and attached to this affidavit were photocopies of the memoranda to Will Wilson dated January 12, 1971 and February 17, 1971 concerning wiretap authorizations presently under consideration. Copies of this affidavit and memoranda are appended to this opinion.

The issue confronting the court then is whether the procedures used in authorizing and applying for the wiretaps were defective so as to require that the evidence obtained through this means be suppressed. A number of courts have considered this question on virtually identical facts and have concluded that the authorization and application were legally sufficient. The rationale for these decisions is that the action by the Attorney General constituted an authorization in compliance with the mandates of Section 2516 and that once such authorization has been granted by the Attorney General the actions of his subordinates are but ministerial in nature and cannot alter the fact of authorization. Under this reasoning, the letter purportedly over the signature of the Assistant Attorney General is but an act of transmittal without legal consequence to the authorization itself. See, United States v. Ceraso, 467 F.2d 647 (3d Cir. 1972); United States v. Cox, 462 F.2d 1293 (8th Cir. 1972); United States v. Pisacano, 459 F.2d 259 (2d Cir. 1972); United States v. Whitaker, 343 F.Supp. 358 (E.D.Pa.1972); United States v. Iannelli, 339 F.Supp. 171 (W.D.Pa. 1972); United States v. Doolittle, 341 F.Supp. 163 (M.D.Ga.1972); United States v. Aquino, 338 F.Supp. 1080 (E. D.Mich.1972); United States v. LaGorga, 336 F.Supp. 190 (W.D.Pa.1971). This court concurs with the reasoning contained in the above-cited opinions and holds that the wiretap applications were lawfully authorized by former Attorney General Mitchell. Therefore, the wiretap evidence which was seized pursuant thereto need not be suppressed.

Before proceeding to the next question, a brief mention of United States v. Focarile, 340 F.Supp. 1033 (D.Md.1972), is in order. In that case, Judge Miller of this Court was confronted with a different fact situation in which Sol Lindenbaum had affixed Mitchell's initials to a memorandum which designated Will Wilson to authorize a wiretap application. The affidavits submitted in support of the application showed that this memorandum was treated in the same manner as were those actually bearing Mitchell's initials. That is, the perfunctory letter of authorization was drafted and signed by one of Wilson's deputies without its ever being reviewed by Wilson. The opinion rendered in that case did not treat this fact as the pivotal point of the decision but instead suppressed the evidence because the wiretap application misled the court into believing that it was authorized by Will Wilson himself. To the extent that Focarile and the instant case are viewed for their factual settings they are distinguishable and hence reconcilable. This court feels that Focarile should be confined to its facts so that it will stand for the proposition that when neither the Attorney General nor an Assistant Attorney General personally authorizes a wiretap application, compliance with Title III is lacking and the suppression of all resulting evidence is thereby necessitated. If construed in this manner, Focarile is in accord with most of the other cases which have...