United States v. Doolittle, Crim. No. 8815.

Decision Date11 February 1972
Docket NumberCrim. No. 8815.
Citation341 F. Supp. 163
PartiesUNITED STATES of America v. Billy Cecil DOOLITTLE et al.
CourtU.S. District Court — Middle District of Georgia

COPYRIGHT MATERIAL OMITTED

William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for plaintiff.

Floyd M. Buford, Manley F. Brown, Macon, Ga., Wesley R. Asinof, Atlanta, Ga., for defendants.

BOOTLE, Chief Judge:

ORDER OVERRULING AMENDED MOTION TO SUPPRESS EVIDENCE AND QUASHING SUBPOENA UPON THE ATTORNEY GENERAL OF THE UNITED STATES

By order dated December 17, 1971, after full hearing, this court overruled the defendants' motions to suppress and for return of evidence seized. Shortly after the rendition of the decision by the Court of Appeals for the Fifth Circuit in United States v. J. W. Robinson et al., No. 71-1058, January 12, 1972, and on January 17, 1972, the defendants filed in this court their motion for reconsideration of said motion to suppress and to return the evidence and filed an amendment to said motion. On January 26, 1972, the Government filed its response to said amended motion.

Said amended motion raises specifically the contentions that the filing with this court of the application for an interception order was not properly authorized, and that the purported letter of authorization purportedly signed by Will Wilson, Assistant Attorney General, was not in fact signed by him but was in fact signed in Will Wilson's name by Henry E. Peterson, who was at that time a Deputy Assistant Attorney General in the Criminal Division. The Government's response to said amended motion admits that said letter was not signed by Will Wilson, and attaches for the record an affidavit from Sol Lindenbaum, an Executive Assistant to the Attorney General; and "Interception Order Authorization" in the form of a memorandum from John N. Mitchell, Attorney General, to Will Wilson, Assistant Attorney General, dated August 19, 1970, bearing the personal initials of Mr. Mitchell placed thereon by him; an affidavit of Henry E. Peterson, Assistant Attorney General, Criminal Division, and an affidavit by Will Wilson, Assistant Attorney General, together with a copy of a letter from Will Wilson, Assistant Attorney General, to William G. Earle, dated June 16, 1969. All of said attachments, of course, appear in the file. Mr. Lindenbaum's affidavit is brief and to the point, stating that he is an Executive Assistant to the Attorney General, and says:

"On August 19, 1970, the Attorney General approved a request for authority to apply for an interception order in this case. Attached is a copy of his personally initialed memorandum of that date reflecting his favorable action on the request."

The memorandum referred to is so important that a copy of it is attached hereto as "Exhibit A". It invites reading and rereading in its entirety. The affidavit by Henry E. Peterson, who, as above stated, was on the relevant dates a Deputy Assistant Attorney General in the Criminal Division, and who later became an Assistant Attorney General, describes the processing in the Criminal Division of the Department of Justice of the request for authorization to make the application to the court in this case. It shows that the formal request for authorization was made by the Director of the Federal Bureau of Investigation on August 17, 1970; that the entire file was reviewed in a special unit of the Organized Crime and Racketeering Section of the Criminal Division prior to action on the request; that two named attorneys of that unit reviewed the file and recommended favorable action on the request; that the file was then submitted for review to a named Deputy Chief of the Organized Crime and Racketeering Section, who recommended approval of the request and sent the file to Mr. Peterson who then examined the file and forwarded it to the office of the Attorney General with a recommendation that the authorization be granted and that "following approval in the Office of the Attorney General, the Criminal Division dispatched the letter dated August 20, 1970, to Charles T. Erion, advising him that he was authorized to present the application to the court." Mr. Peterson's affidavit states further that he signed Will Wilson's name to the letter of August 20, 1970 in accordance with Mr. Wilson's authorization and the standard procedures of the Criminal Division; that he regarded the signing of Mr. Wilson's name as a ministerial act because Mr. Wilson had authorized him to sign his name to and dispatch such a letter of authorization in every instance in which a request had been favorably acted upon in the office of the Attorney General and that Mr. Wilson did not examine the file or expressly authorize the application.

Thereafter (on or shortly after February 7, 1972) the United States Attorney exhibited to counsel for movants an additional affidavit dated February 7, 1972, and filed in this court on February 10, 1972, said affidavit being made and signed by John N. Mitchell, Attorney General of the United States, and having attached to it the above mentioned memorandum of August 19, 1970. Mr. Mitchell's affidavit is important and is attached hereto as "Exhibit B". It, too, merits reading and rereading in its entirety. Forthwith after learning of Mr. Mitchell's affidavit counsel for movants caused to be issued for service upon Mr. Mitchell a subpoena requiring his attendance in this court at the hearing already scheduled for February 10, 1972 at 10 o'clock, A.M. Promptly, and on February 9, 1972, the United States Attorney, as soon as he learned of the issuance of said subpoena, filed a motion to quash the same upon the grounds that the testimony of Mr. Mitchell could add nothing further to the information contained in his affidavit and that cross-examination or direct examination of him by counsel for defendants could not elicit any additional information concerning any matter relevant to the issue to be determined by the court; that Mr. Mitchell's affidavit is merely a publication by an official of the Executive Branch of the Government of previously unpublished administrative procedures and regulations established by him pursuant to his power and authority and is therefore not a matter subject to cross-examination; that defendants have no absolute right to cross-examine persons giving evidence for the United States relative to the issues presented by the amended motion to suppress inasmuch as persons giving such evidence are not necessarily witnesses against defendants within the meaning of Amendment Six to the Constitution dealing with confrontation and that the subpoena is frivolous and has been caused to be issued for the principal purpose of harassing officials of the Department of Justice, including the highest prosecuting official of the United States of America and for further delaying the final determination of the issues presented by the indictment and pleas of not guilty.

This matter came on for hearing as scheduled on February 10, 1972, the court having previously announced to counsel on February 9, 1972 that the Attorney General would be excused from appearing at said hearing of February 10, 1972 on said date and that a decision on the motion to quash would be reserved pending the hearing.

At said hearing on February 10, 1972, counsel for movants filed their motion to strike Mr. Mitchell's affidavit, reciting the issuance of said subpoena, the filing of the motion to quash the same, and alleging the failure of Mr. Mitchell to appear and subject himself to cross-examination amounts to the denial of the guarantees of the Sixth Amendment as to the right of confrontation, and that accordingly said affidavit must be stricken unless and until the Government submits Mr. Mitchell to a thorough in person cross-examination by the defendants before this court.

There emerge two major questions: first, whether the application to this court for the interception order was properly authorized under the applicable statutes; and, second, should the subpoena issued for the Attorney General of the United States be quashed. The controlling enactment is Title 3 of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2510 et seq., the purpose and philosophy of which are elucidated in United States v. Robinson, supra. Section 2516, in pertinent part, says:

"The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application ..."

So the controlling question is whether this application was authorized either by the Attorney General or any Assistant Attorney General specially designated by the Attorney General for that purpose. In view of the holding in the Robinson case the Government can prevail on this motion only if the Attorney General himself authorized this application. Mr. Wilson, being an Assistant Attorney General, could properly have authorized the application if we assume that the initialed memorandum specially designated him for that purpose, but the evidence is clear that Mr. Wilson did not personally authorize the application and under Robinson Mr. Wilson's Deputy Assistant Attorney General, Mr. Peterson, could not authorize for him. Thus we must look to the evidence presently before this court to see whether or not Mr. Mitchell himself authorized the application. If the evidence consisted solely of the initialed memorandum of August 19, 1970 there may well be doubt. If we had to look to the memorandum alone we would see on the one hand, as pointed out so ably by counsel for defendants, that paragraph 1 simply states what the memorandum is about, namely, "your recommendation that authorization be given" and that the remaining short paragraph simply says: "Pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise those powers for the purpose of authorizing Charles T. Erion to make the...

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