United States v. Chavez

• Decision Date: 28 February 1973
• Docket Number: No. 72-2240.,72-2240.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Umberto Jose CHAVEZ et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

478 F.2d 512 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. Umberto Jose CHAVEZ et al., Defendants-Appellees.

No. 72-2240.

United States Court of Appeals, Ninth Circuit.

February 28, 1973.

John J. Robinson, Atty. (argued), Dept. of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellant.

William L. Osterhoudt (argued), Andre T. Laborde, Peter G. Keane, San Francisco, Cal., James Giller, Oakland, Cal., Jerald H. Wilhelm, Newark, Cal., Earle A. Partington, Deputy Federal Public Defender, San Francisco, Cal., Clinton White, J. Bradley Klemm, Murray Petersen, Claude Allen, Oakland, Cal., Paul Alvarado, San Francisco, Cal., for defendants-appellees.

Before BARNES, BROWNING, and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

This case is in most respects similar to United States v. King, 9 Cir., 1973, 478 F.2d 516, decided today. However, it differs in one important respect.

Umberto Chavez, James Fernandez, and ten others were indicted for conspiring to import and distribute heroin in the United States, a violation of 21 U.S.C. §§ 173, 174. Chavez and Fernandez were also charged with various activities prohibited by 18 U.S.C. § 1952. The government's case was largely derived from two wiretaps, one of Fernandez' telephone in Union City, California, and one of Chavez' telephone in Fremont, California. The district court held that these wiretaps had been conducted in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and ordered their fruits suppressed. The government appeals under 18 U.S.C. § 3731; we affirm.

The procedures by which the Fernandez tap was authorized are identical to those described in United States v. King, supra. As in King, the application to the district judge identified Assistant Attorney General Will Wilson as designated by the Attorney General under 18 U.S.C. § 2516 to authorize the application. It was accompanied by a Will Wilson letter substantially the same as that in King. As in King, the District Judge's order identified Wilson as the person authorizing the application. As in King, practically everything stated in the Wilson letter is false. As in King there are affidavits by Harold Shapiro, Sol Lindenbaum and Will Wilson. There is no affidavit by former Attorney General Mitchell, but this is immaterial because the Lindenbaum affidavit fully discloses that the Attorney General had chosen not to designate an Assistant Attorney General to authorize applications for interceptions, but had required that all such applications be referred to him for consideration. It also discloses that it was Lindenbaum, not Mitchell, who approved the application. As in King, there is a Memorandum, purportedly from Mitchell but actually from Lindenbaum, to Wilson. The relevant content of all of these papers is practically identical to the content of those in King. This is the proverbial "spotted cow" case. As to the Fernandez tap, the order must be affirmed for the reasons stated in King.

However, the Chavez tap presents the issue that we expressly reserved in King, namely, whether misidentification of the person who authorized the application for a wiretap requires suppression of its fruits. 478 F.2d at 503 n. 4. In the application by the Justice Department attorney Merten to the District Judge there is the same recital about Wilson as in King and there is the same Wilson letter. There is the same identification of Wilson in the Judge's order. The Wilson letter is just as false as that in King. As in King, there are affidavits. One is by Henry E. Petersen, who was at the time a Deputy Attorney General in charge of the Criminal Division of the Department of Justice. It is substantially the same as the Shapiro affidavit in King. The Lindenbaum affidavit is like that in King, but, as to the Chavez tap, it says:

"On February 16, 1971, and February 25, 1971, the Criminal Division of the Department of Justice addressed to the Attorney General requests for approval of authorization to apply for interception orders with respect to certain telephones in California. The first request related to a telephone in Fremont, California, allegedly used by Umberto Jose Chavez and others. The second related to a telephone in Union City, California, allegedly used by a person identified only as `Pelone\' and others. In each instance, the request was accompanied by copies of the proposed affidavit, application, and order, as well as a recommendation for approval from the Criminal Division.

"With respect to the first, the Attorney General on February 18, 1971, approved the request that the authorization be given to Maurice Merten to make application for an interception order with respect to the mentioned telephone in Fremont, California. Attached is a copy of the Attorney General\'s personally initialed memorandum of that date to Will Wilson reflecting his favorable action on the request."

The Wilson affidavit is like that in King. There is an affidavit by former Attorney General Mitchell, which we quote in full:

"John N. Mitchell, being duly sworn, deposes and says:

"I held the office of Attorney General of the United States from January 21, 1969, through March 1, 1972.

"On February 18, 1971, I approved a request for authority to apply for an interception order in this case and personally initialed a memorandum of that date reflecting my favorable action on the request. I have examined the original of this memorandum and certify that it bears my initials which were personally affixed by me on February 18, 1971. Attached is a copy of my personally initialed memorandum of that date reflecting my favorable action on the request.

"My memorandum of approval in this case constituted a notification to the Assistant Attorney General of the Criminal Division that the discretionary action of approving the request to make application to the court for an interception order was taken by me."

The attached Memorandum is as follows:

Date: Feb 18 1971 JNM:PTW:1rt "To: Will Wilson Assistant Attorney General Criminal Division From: John N. Mitchell Attorney General JNM Subject: Interception Order Authorization

This is with regard to your recommendation that authorization be given to Maurice K. Merten of the Criminal Division to make application for an Order of the Court under Title 18, United States Code, Section 2518, permitting the interception of wire communications for a twenty (20) day period to and from telephone number XXX-XXX-XXXX, located at 220 Carmelita Place, Fremont, California, in connection with the investigation into possible violations of Title 21, United States Code, Section 174, and Title 26, United States Code, Sections 4704 and 7237, by Umberto Jose Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera, and others as yet unknown.

Pursuant to the power conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise that power for the purpose of authorizing Maurice K. Merten to make the above-described application."

It is apparent that the only differences between the authorization of the Chavez tap and the authorization of the King taps are these. First, the Attorney General did see the request for an authorization and did approve the request. Second, he personally initialed the memorandum to Wilson.

Nevertheless, we are as much struck by the contrast between the contents of the affidavits and the recitals in the Mitchell memorandum, the Wilson letter, and the Merten application as we were in King.

The Merten application to the District Judge recited:

"3 Pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, the Attorney General of the United States, the Honorable John N. Mitchell, has specially designated in the proceeding the Assistant Attorney for the Criminal Division of the United States Department of Justice, The Honorable Will Wilson, to authorize affiant to make this application for an Order authorizing the interception of wire communications. This letter of authorization signed by the Assistant Attorney General is attached to this application as Exhibit A."

This recital is entirely consistent with the Attorney General's memorandum of February 18, 1971, quoted above, but is hardly consistent with what the former Attorney General now says in his affidavit, or with the Lindenbaum affidavit. The Wilson letter attached to the application, recites:

"Accordingly, you are hereby authorized under the power specially delegated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, pursuant to the power conferred on him by Section 2516 of Title 18, United States Code, to make application to a judge of competent jurisdiction for an Order of the Court pursuant to Section 2518 of Title 18, United States Code, authorizing the Federal Bureau of Narcotics and Dangerous Drugs and the Bureau of Customs, United States Department of the Treasury, to intercept wire communications from the facility described above, for a period of twenty (20) days."

It also recites review of the request for authorization by Wilson, not Mitchell, and determinations made by Wilson, not Mitchell.

Undoubtedly these representations caused the judge to state in his order:

"Special Agents of the Bureau of Narcotics and Dangerous Drugs, United States Department of Justice and Special Agents of the United States Customs Agency Service, Bureau of Customs, Department of Treasury, are authorized, pursuant to the application authorized by the Assistant Attorney General for the Criminal Division of the United States 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, United States Code, ..."

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