United States v. Giordano

• Decision Date: 31 October 1972
• Docket Number: No. 72-1399,72-1407.,72-1399
• Citation: 469 F.2d 522
• Parties: UNITED STATES of America, Appellant, v. Dominic Nicholas GIORDANO, also known as Nick Gino, also known as P. Burdi, also known as Nick Giordina, Appellee. UNITED STATES of America, Appellant, v. Dominic Nicholas GIORDANO, a/k/a Nick Gino, a/k/a P. Burdi, a/k/a Nick Giordina, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

469 F.2d 522 (1972)

UNITED STATES of America, Appellant, v. Dominic Nicholas GIORDANO, also known as Nick Gino, also known as P. Burdi, also known as Nick Giordina, Appellee.

UNITED STATES of America, Appellant, v. Dominic Nicholas GIORDANO, a/k/a Nick Gino, a/k/a P. Burdi, a/k/a Nick Giordina, et al., Appellees.

Nos. 72-1399, 72-1407.

United States Court of Appeals, Fourth Circuit.

Argued September 13, 1972.

Decided October 31, 1972.

Francis S. Brocato, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for United States.

John A. Shorter, Jr., Washington, D. C. (Court-appointed counsel), for appellee, Sampson Williams.

H. Russell Smouse, Baltimore, Md. (Court-appointed counsel), for appellee, Dominic Nicholas Giordano.

Arthur G. Murphy, Sr., Baltimore, Md. (Court-appointed counsel), on brief for Herman Lee Pettiford, and Phillip M. Sutley.

Before SOBELOFF, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.

SOBELOFF, Senior Circuit Judge:

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S.C. § 2510 et seq. "Act", lays down a stringent step-by-step procedure that circumscribes and limits all electronic surveillance. The scheme was intended to allay the profound concern expressed by the Supreme Court in such cases as Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L.Ed.2d 1040 (1967), over electronic intrusions into privacy. Speaking for the Court, Mr. Justice Clark had observed that "Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices." Id. at 63, 87 S.Ct. at 1885. Accordingly, Title III conformed its prescribed procedures in seeking leave to engage in electronic surveillance to the constitutional standards elucidated in Berger v. New York, supra, and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The question raised here is the extent to which the Government must adhere to the letter of that statutory scheme in authorizing applications and obtaining orders permitting the interception of wire communications.

I

On October 16, 1970, Francis S. Brocato, an assistant United States Attorney, presented to Chief Judge Edward S. Northrop of the United States District Court for the District of Maryland an application¹ for authorization to intercept wire communications to and from a telephone listed in the name of Nicholas Giordano. To one uninitiated in the "Alice in Wonderland" world of Justice Department wiretap applications, the documentation² presented to Judge Northrop — the Brocato affidavit and the purported Will Wilson letter — would indicate that the then Attorney General, John N. Mitchell, had specially designated Assistant Attorney General Will Wilson to authorize the Giordano wiretap; and that Wilson had reviewed the "facts and circumstances" and determined that there existed sufficient probable cause to justify the surveillance. The recitals in the Brocato affidavit and the Will Wilson letter were tailored to fit within the statute's terms. In fact, however, neither Mitchell nor Wilson had heard of the Giordano application or signed the letters bearing their respective initials and signature.³ The Government itself now concedes that the assertions in the affidavit and letter misrepresented the truth.

Acting upon the application and what appeared in the accompanying papers, Chief Judge Northrop authorized the wiretap "pursuant to application authorized by * * * Will Wilson, who has been specially designated in this proceeding by * * * John N. Mitchell, to exercise the powers conferred on him by Section 2516 of Title 18 * * *." The order was extended on October 22 and November 6, and then voluntarily terminated by the Government on November 18 when Giordano and others were arrested and charged with narcotic violations. The defendants filed motions claiming that the Government's application for the October 16 order was fatally defective in that it had not been properly authorized. They therefore demanded the suppression of the contents of any intercepted telephone communications and derivative evidence. The motions were referred to District Judge James R. Miller, Jr., who, after lengthy hearings, ordered suppression and filed a detailed memorandum opinion explaining his reasons. 340 F.Supp. 1033 (D. Md.1972). The Government here appeals from Judge Miller's order.⁴

The fundamental issue to be resolved is whether the Giordano wiretap was properly authorized as required by 18 U.S.C. § 2516(1), which reads:

The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications * * *.

The defendants contend that the Government has failed to comply with the requirements of this section because the source of the requisite wiretap authorization was not the then Attorney General John N. Mitchell, but his executive assistant, Sol Lindenbaum. The Government concedes that Mr. Lindenbaum not only authored the memorandum of approval, but also penned thereon the Attorney General's initials ("JNM").

II

The procedures followed in the instant case, as outlined by the Government in affidavits submitted to Judge Miller, included a request for authorization by the Director of the Bureau of Narcotics, and subsequent review and favorable recommendation of this application by the Deputy Chief and Chief of the Organized Crime and Racketeering Section of the Department of Justice and the Deputy Assistant Attorney General. Since Attorney General Mitchell had not designated an Assistant Attorney General to authorize without his approval the filing of wiretap applications, the application was referred to him for his consideration and approval. In accordance with office procedure, Sol Lindenbaum, Mr. Mitchell's executive assistant, reviewed the case in order to make recommendations to the Attorney General. The request for approval in this case came in while Mitchell was away from Washington. According to Lindenbaum's affidavit furnished to Judge Miller, Lindenbaum reviewed the application in the Attorney General's absence and concluded from his knowledge of the Attorney General's previous actions that Mitchell would sign. The Government's brief then alleges that "pursuant to authorization given to Lindenbaum by the Attorney General to act `in the circumstances,'" Mr. Lindenbaum approved the request and signed Mitchell's initials on a memorandum directing that application be made to set up a wiretap on Giordano's phone.

Despite the fact that neither the Attorney General nor any Assistant Attorney General authorized the application, the Government contends that the application was properly authorized and that the spirit, if not the letter, of 2516(1) was observed. The Government's argument may be described as an "alter ego theory." The contention is that Lindenbaum should be treated as Mitchell's alter ego with respect to wiretap applications at times when the Attorney General was unavailable. The Government maintains that while the Attorney General granted to his trusted confidant in the Title III area permission to authorize applications in his absence, the Attorney General, nevertheless, did not delegate the responsibility for the action. Since the Attorney General retained responsibility for the authorization, the argument continues, the primary legislative purpose of 2516(1) — that a line of responsibility lead to a clearly identifiable person — is met. In urging this theory upon the court, the Government stresses the increase in recent years in the number of applications for wiretaps and the impossibility of one man personally exercising all the statutory functions of an office such as the Attorney Generalship.

III

The argument that Mr. Lindenbaum's approval of the application for permission to wiretap fulfills the statutory requirements of Section 2516 must fail.

A. Legislative History

The legislative history of Section 2516, while not determinative, is indeed enlightening. Prior to 1968, wiretapping and eavesdropping legislation had been introduced in several sessions of Congress. Especially illuminating is a review of S. 1495 presented in the 87th Congress, 1st Session, in 1961. Section 4(b) of this bill, as originally proposed, provided that:

The Attorney General or any officer of the Department of Justice or any United States attorney specially designated by the Attorney General, may authorize any investigative law enforcement officer of the United States or any Federal agency to apply to a judge of competent jurisdiction for leave to intercept wire communications * * *.

On June 21, 1961, the Department of Justice submitted to Congress a proposed revision of S. 1495 which, for the first time, included precisely the same operative language as the present § 2516(1) of Title 18, United States Code. The Department of Justice proposed to modify § 4(b) of S. 1495 to read as follows:

The Attorney General, or any Assistant Attorney General of the Department of Justice specially designated by the Attorney General, may authorize an application to a judge of competent jurisdiction * * *. Hearings Before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, Wiretapping and Eavesdropping Legislation, 87th Congress, First Session (May 9, 10, 11, 12, 1969) at 372.

The Justice Department's revision of the wording of Section 4(b) of S. 1495 followed the testimony of Herbert J. Miller, Jr., Assistant Attorney General, Criminal Division of the Department of Justice, at hearings on the bill in May, 1961. He testified that the Department felt that the authorization provision in S. 1495 was too broad and suggested that the range of officials who might authorize wiretaps be sharply curtailed — limited to the Attorney...