United States v. Bowdach

• Decision Date: 13 July 1973
• Docket Number: No. 71-114-Cr-CA.,71-114-Cr-CA.
• Citation: 366 F. Supp. 1368
• Parties: UNITED STATES of America v. Gary BOWDACH.
• Court: U.S. District Court — Southern District of Florida

366 F. Supp. 1368

UNITED STATES of America v. Gary BOWDACH.

No. 71-114-Cr-CA.

United States District Court, S. D. Florida.

July 13, 1973.

Gary Betz, Dept. of Justice Strike Force, Miami, Fla., for the Government.

Daniel S. Pearson, Miami, Fla., for defendant.

MEMORANDUM OPINION AND ORDER

ATKINS, District Judge.

Two issues are presently before the Court: 1) whether then Attorney General John N. Mitchell personally authorized the wire interception request in this case¹ and 2) if he did so authorize, whether a mistake in the recital of facts as to the identification of the authorizing individual contained in an application for a wiretap order and reiterated in the order itself² constitutes a fatal defect under the statutory framework of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. Suppression of evidence gathered as a result of that tap and admitted at petitioner-appellant's trial depends on the resolution of these issues.

The question of the validity of the wiretaps was raised for the first time on appeal. United States v. Bowdach, 474 F.2d 812 (5th Cir. 1973). The case sub judice was held by the United States Court of Appeals for the Fifth Circuit pending its decision en banc in United States v. Robinson, 468 F.2d 189 (5th Cir. 1972) (panel opinion), 472 F.2d 973 (5th Cir. 1973) (en banc opinion), 359 F.Supp. 52 (S.D.Fla.1973) (findings and conclusions upon remand). As in Robinson, this case was remanded for an evidentiary hearing on the procedures utilized by the Office of the Attorney General in securing a wiretap, evidence from which led to the conviction of petitioner-appellant for violations of the Extortionate Credit Transactions Act, 18 U.S.C. §§ 891 et seq. To expedite the proceedings, the instant case and others similarly remanded or pending were consolidated before Judge William O. Mehrtens for an evidentiary hearing.³ That hearing was held on March 19-20, 1973. This case has been referred to this Court for appropriate findings of fact and conclusions of law.

A necessary predicate for resolution of the issue of the validity of the wiretap order is a thorough recitation of the facts and circumstances surrounding the order. To glean this information, the Court has examined the affidavits filed in the Court of Appeals by then Deputy Assistant Attorney General of the Criminal Division, Department of Justice, Henry Petersen, and by John N. Mitchell, the Attorney General at the time of authorization of the pertinent wiretap. The testimony elicited at the March 19-20 evidentiary hearing from Petersen, Mitchell, Sol Lindenbaum, Executive Assistant to the Attorney General, Will Wilson, then Assistant Attorney General of the Criminal Division, and Harold Shapiro, Deputy Assistant Attorney General, has also been examined. According to these sources, the procedures hereinafter delineated were employed by the Department of Justice in obtaining permission to seek this Court's authorization for a wiretap.

A formal request for authorization to apply for a wire interception order in this matter was made by the Director of the Federal Bureau of Investigation on April 1, 1970. A file including copies of the proposed affidavit, application, and order was examined in a special unit of the Organized Crime and Racketeering Section of the Criminal Division. The attorney in that section to whom the matter was referred, David E. Holt, and his supervisor, Philip T. White, examined the file to see whether the papers were in proper order. Recommending favorable action on the request, Holt and White submitted the file for review to Edward T. Joyce, a Deputy Chief of the Organized Crime and Racketeering Section, and William S. Lynch, Chief of that section, both of whom recommended approval of that request. The file was sent to Henry Petersen, who similarly endorsed the recommendation for authorization. Upon receipt by the Attorney General's Office, Sol Lindenbaum prepared a short memorandum reflecting his approval of the proposed interception.⁴ The file, now including a detailed memorandum of the facts and circumstances surrounding the request, was sent to the Attorney General himself. He subsequently routed the file, with an attached memorandum dated April 15, 1970, entitled "Interception Order Authorization,"⁵ and bearing his initials to the office of Will Wilson, Assistant Attorney General. The Criminal Division dispatched a letter over the signature of Will Wilson to James B. F. Oliphant, an attorney in the Department of Justice, advising him that he was authorized to present the application to this Court.⁶ Wilson's signature was affixed by Henry Petersen, pursuant to authority vested in him by Wilson to sign letters of this nature. In his application to this Court for authorization to commence wire interception, James B. F. Oliphant asserted that Mitchell had "specially designated in this proceeding the Assistant Attorney General for the Criminal Division of the Department of Justice, the Honorable Will Wilson to authorize affiant to make this application. . . ." Resultingly, this Court in its order dated April 15, 1970 authorizing FBI agents to conduct the wire interception, noted that the application had been "authorized by the Assistant Attorney General for the Criminal Division of the Department of Justice, the Honorable Will Wilson, who has been specially designated in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, to exercise the powers conferred on the Attorney General by Section 2516 of Title 18 USC. . . ."

Declining to resolve the issue of whether Mitchell had personally authorized the request for an application to this Court for a wire interception order on the ground that Mitchell's affidavit in this regard might be deemed conclusory, the circuit court has directed this Court to make the appropriate findings in light of the evidentiary hearing. The problem before the Court centers upon the significance of the memorandum labeled "Interception Order Authorization." This problem entails a two-tiered analysis of 1) whether the personally-initialed memorandum is to be construed as designating Wilson to undertake only the ministerial task of conveying to the government attorney in the field the approval rendered by the Attorney General in the particular matter and 2) whether the memorandum adequately reflects the consideration which the Attorney General must give to a request for authorization to be consistent with § 2516.

Regarding the first aspect of the authorization problem, the Court concludes, on the basis of the affidavit submitted to the Court of Appeals by Mitchell and substantiated by his testimony at the March 19-20 hearing⁷ that Mitchell did indeed personally review the file and authorize the application procedures. The memorandum cannot, in light of the additional testimony, be construed as authorizing Wilson to undertake the discretionary aspect of authorization. Mitchell and Wilson both testified that Wilson was never authorized to approve wire interception applications.⁸ Mitchell was steadfast in maintaining that his policy from the outset was to personally authorize all wiretap applications unless extraordinary circumstances dictated otherwise.⁹ Before he initialed the memorandum Mitchell had been presented with, and analyzed, the proposed affidavit, application, order and detailed report.¹⁰ The affidavits and testimony of Mitchell and Wilson indicate that the memorandum constituted a notification to Wilson that Mitchell had undertaken the discretionary power invested in him to approve the request.¹¹ Both Mitchell and Wilson have testified that the language in the memorandum to the effect that Wilson was "specially designated" to authorize the application and dispatch the letter reflected the procedure adopted for the transmission of the Attorney General's authorization.¹² To read the Interception Order Authorization of April 15, 1970 as delegating authority to authorize the application and not as personal authorization by the Attorney General would, in light of the surrounding circumstances, "elevate semantics above reality." United States v. Whitaker, 343 F.Supp. 358, 360 (E.D.Pa. 1972). See also, 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. Piscano, 459 F. 2d 259 (2d Cir. 1972); United States v. Askins, 351 F.Supp. 408 (D.Md.1972); United States v. Cantor, 345 F.Supp. 1352 (E.D.Pa.1972), aff'd 470 F.2d 890 (3d Cir. 1972).

Similarly, surrounding circumstances must be considered to adequately discern whether the personally-initialed memorandum, brief as it was, was sufficient to represent authorization by the Attorney General within the meaning of § 2516. At least two other courts have addressed this aspect of the authorization problem and have found the memorandum adequate to reflect the consideration the Attorney General gave to the requests. United States v. Consiglio, 342 F.Supp. 556 (D.Conn.1972); United States v. Doolittle, 341 F.Supp. 163 (M. D.Ga.1972). The Court finds then, according to all the evidence, that the Attorney General did in fact authorize the application for an order to initiate wire interception in this case. Any apparent conflict with this conclusion attributable to the ambiguous language of the Interception Order Authorization and the Will Wilson letter is clarified and eradicated by the affidavits and testimony of the Attorney General and the Deputy Assistant Attorney General.

The second issue before this Court is a more difficult one, at least from a policy perspective. The question is whether the disparity between the recital in the application to this Court, and contained in the subsequent order, that Will Wilson was the "authorizing individual," and the proof alluded to above that Mitchell actually authorized the tap, is a fatal disparity.¹³ This Court rendered an order in...