United States v. Chavez United States v. Giordano 8212 1319, 72 8212 1057, Nos. 72

• Decision Date: 13 May 1974
• Docket Number: Nos. 72
• Citation: 40 L.Ed.2d 380,416 U.S. 580,94 S.Ct. 1858
• Parties: UNITED STATES, Petitioner, v. Umberto Jose CHAVEZ et al. UNITED STATES, Petitioner, v. Dominic Nicholas GIORDANO et al. —1319, 72—1057
• Court: U.S. Supreme Court

416 U.S. 580

94 S.Ct. 1858

40 L.Ed.2d 380

UNITED STATES, Petitioner,

v Umberto Jose CHAVEZ et al.

UNITED STATES, Petitioner,

v. Dominic Nicholas GIORDANO et al.

Nos. 72—1319, 72—1057.

Supreme Court of the United States

May 13, 1974

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, concurring in part and dissenting in part in No. 72—1319, United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380, and concurring in No. 72—1057, United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341.

The Court deals with two different Justice Department violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which imposes express limitations on the use of electronic surveillance. In United States v. Giordano, the Court correctly finds that the violation of 18 U.S.C. § 2516(1) is a violation of a statutory requirement which 'directly and substantially implement(s) the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.' The Court also properly finds that a violation of such a statutory requirement mandates suppression of the evidence seized by the unlawful interception. I join the opinion of the Court in Giordano. The same violation of § 2516(1) is also involved in the Fernandez wiretap in United States v. Chavez, and I therefore concur in the Court's suppression of the evidence seized in that wiretap. In Chavez, however, the Court finds that suppression is not warranted for the violations of 18 U.S.C. §§ 2518(1)(a) and 2518(4)(d) which the Court admits occurred in the Chavez wiretap itself. I dissent from this conclusion, hereinafter referred to as the holding of Chavez.

I

Title III permits electronic surveillance to be employed only pursuant to a court order. It requires, inter alia, that a federal trial attorney desiring to apply to the District Court for such a wiretap order must first secure authorization from one of a group of specified officials in the Justice Department. Giordano represents a class of cases in which authorization for electronic surveillance was given by Sol Lindenbaum, the Executive Assistant to Attorney General John Mitchell, in violation of the 'authorization requirement' of § 2516(1) of Title III. This section provides that a wiretap order may be applied for only after authorization by '(t)he Attorney General, or any Assistant Attorney General specially designated by the Attorney General.' Chavez, on the other hand, represents a class of cases where the Justice Department violated the 'identification requirement' of § 2518(1)(a) of Title III, which requires that each application made to the District Court for a wiretap order 'shall include . . . the identity of . . . the officer authorizing the application.' Because the District Courts in this class of cases were supplied with misinformation as to the identity of the person who authorized the applications made to them, the orders they entered approving the use of electronic surveillance violated § 2518(4)(d) of Title III, which provides that such orders 'shall specify . . . the identity of . . . the person authorizing the application.' (Emphasis added.)

In the Justice Department between 1969 and 1972, a request from a federal trial attorney for authorization to apply for a wiretap order was reviewed in the Criminal Division before being sent to Attorney General Mitchell. According to the Solicitor General, in Chavez Attorney General Mitchell made the operative decision to authorize the wiretap application and signified this by sending a memorandum to Assistant Attorney General Will Wilson directing Wilson to authorize the trial attorney to submit the application to the District Court. The memorandum,¹ the Solicitor General admits, does not make clear that the operative decision was made in the Attorney General's Office; rather, it indicates that Wilson himself was designated to review and authorize the application.

At this point, a letter of authorization was sent to the trial attorney, which clearly identified Assistant Attorney General Wilson, and not Mitchell, as the person who had made the operative decision to authorize the wiretap.² Wilson, however, neither saw nor authorized the Chavez wiretap application or any others; his signature was affixed to the authorization letters by a Deputy Assistant Attorney General, either Harold P. Shapiro or Henry E. Petersen.³

When the trial attorney applied for a wiretap order in the District Court, he attached the letter of authorization purportedly signed by Wilson, and naturally misidentified Wilson as the person who had authorized the application to be made,⁴ in violation of the identification requirement of § 2518(1) (a). As a result, the District Court's order identified Wilson, and not Mitchell, as the Justice Department official who had authorized the trial attorney to apply for the Chavez wiretap order,⁵ in violation of the identification requirement of § 2518(4)(d).

In Chavez, Mitchell first acknowledged responsibility for authorizing the wire-tap application in an affidavit filed with the District Court only after respondents had made a motion to suppress the evidence in the tap. Similar affidavits stating that Mitchell had authorized the application, rather than Wilson, were filed by Lindenbaum and Petersen. The courts below, on the strength of these affidavits, have held that Mitchell did in fact authorize the application to be made. Both, however, ordered the evidence which was seized by the surveillance to be suppressed, since the application misidentified Wilson as the responsible official. This Court reverses the Court of Appeals.

II

Deciding a question not reached in Giordano, the Court in Chavez holds that suppression is not dictated when there has been a violation of a provision of Title III which does not, in the view of the courts, 'directly and substantially implement the congressional intention to limit the use of intercept procedures' to cases clearly calling for electronic surveillance. I cannot agree that Title III, fairly read, authorizes the courts to pick and choose among various statutory provisions, suppressing evidence only when they determine that a provision is 'substantive,' 'central,' or 'directly and substantially' related to the congressional scheme.

Section 2515 of Title III unambiguously provides that no evidence derived from any intercepted communication may be received 'in any trial . . . in or before any court . . . if the disclosure of that information would be in violation of this chapter.' The Court acknowledges this provision in Chavez, 416 U.S., at 575, 94 S.Ct., at 1856, but disregards two sections of Title III explicitly dealing with disclosure in determining when disclosure is in fact 'in violation of' Title III. Section 2511(1), which provides criminal penalties for willful violations of Title III, prohibits in § 2511(1)(c) knowing disclosure of communications intercepted in violation of subsection (1) and the subsection prohibits interception '(e)xcept as otherwise specifically provided in this chapter.' Section 2517(3) authorizes the disclosure in a criminal proceeding of information received 'by any means authorized by this chapter' or of evidence derived from a communication 'intercepted in accordance with the provisions of this chapter.' The statute does not distinguish between the various provisions of the Title, and it seems evident that disclosure is 'in violation of' Title III when there has not been compliance with any of its requirements.

The Court fixes on § 2518(10)(a), which defines the class of persons who may move to suppress the admission of evidence. This section provides that any aggrieved person may move to suppress evidence on the grounds that

'(i) the communication was unlawfully intercepted;

'(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or '(iii) the interception was not made in conformity with the order of authorization or approval.'

Since paragraphs (ii) and (iii) reach some statutory violations, reasons the Court, paragraph (i) cannot reach all statutory violations or else paragraphs (ii) and (iii) would be 'drained of all meaning.'

The choice seems to be between attributing to Congress a degree of excessive cautiousness which led to some redundancy in drafting the protective provisions of § 2518(10)(a), or foolishness which led Congress to enact statutory provisions for law enforcement officials to scurry about satisfying when it did not consider the provisions significant enough to enforce by suppression. In view of the express prohibition by § 2515 of disclosure of information 'in violation of' the chapter, I would opt for the conclusion that Congress was excessively cautious, and that 'unlawfully intercepted' means what it says.

Congress could easily have given the judiciary discretion to apply the suppression remedy only for violations of 'central' statutory provisions by using language such as 'unlawfully intercepted in violation of important requirements of this chapter' in § 2518(10)(a). But no such limitation appears. Further, the legislative history of Title III emphasizes Congress' intent to enforce every provision of the Title with the remedy provided in §§ 2515 and 2518(10)(a). The Senate Report which accompanied Title III to the Congress states that 'Section 2515 . . . imposes an evidentiary sanction to compel compliance with the other prohibitions of the chapter,' and that § 2518(10)(a) together with § 2515 'applies to suppress evidence directly . . . or indirectly obtained in violation of the chapter.' S.Rep.No.1097, 90th Cong., 2d Sess., 96 (1968) U.S.Code Cong. & Admin.News, pp. 2112, 2184, 2185.

Again, no distinction supports the conclusion that Congress considered any provision of Title III more important than any...