United States v. Martinez

• Decision Date: 18 June 1974
• Docket Number: No. 73-1740.,73-1740.
• Citation: 498 F.2d 464
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

498 F.2d 464 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. John MARTINEZ, Defendant-Appellant.

No. 73-1740.

United States Court of Appeals, Sixth Circuit.

Argued December 10, 1973.

Decided June 18, 1974.

Louis Martinez, Canton, Ohio, for defendant-appellant.

Leonard A. Sands, U. S. Dept. of Justice, for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., David Margolis, Sp. Atty., U. S. Dept. of Justice, Cleveland, Ohio, on brief.

Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

John Martinez was found guilty on two counts of an indictment charging him with violation of 18 U.S.C. §§ 1084 and 1952, illegal use of interstate telephone facilities to carry on unlawful gambling activities. No issue is made as to the sufficiency of the evidence or of rulings on evidentiary matters during the trial. Therefore, no purpose would be served by a recitation of the facts disclosed by the trial transcript. It is maintained on appeal, however, that there are three distinct reasons why the conviction must be reversed. These matters will be considered separately.

The Speedy Trial Issue

Appellant maintains that he was denied his Sixth Amendment right to a speedy trial. An indictment was returned on April 2, 1970 charging Martinez and 14 others with violation of 18 U.S.C. §§ 1084 and 1952 and with conspiracy. Between the date of the indictment and May 18, 1972 thirteen of the original fifteen defendants pled guilty. On May 18, 1972 Martinez and one other person were charged with the same crimes in a superseding indictment. Subsequently the co-defendant in the superseding indictment pled guilty and Martinez was the only person actually tried on either indictment. The original indictment was dismissed by the government at the time that the trial of Martinez began under the superseding indictment. The trial began on November 27, 1972, which was nearly 32 months after the original indictment was returned.

The reasons for delay in bringing appellant's case to trial are not apparent from an examination of the record. So far as the record discloses, the government never made a motion for continuance and appellant never sought to have his case set for trial. The minutes of a pretrial hearing held on February 11, 1971 show that no motions were pending at that time. On May 3, 1971 there was a motion for continuance by one of the co-defendants and there is no indication that the motion was opposed by the government or any of the other defendants. Martinez was free on bail during the entire period that his case was pending. On November 27, 1972, the date that his trial began, defendant orally moved the court to dismiss the charges for failure to provide him with a speedy trial.

Appellant cites Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In that case the Supreme Court rejected a rule which would require that the defendant either demand a speedy trial or forever waive the right to raise the issue. The Court held, however, that a defendant has some responsibility to assert a claim for a speedy trial, but placed ". . . the primary burden on the courts and the prosecutors to assure that cases are brought to trial." 407 U.S. at 529. The Court specifically adopted "a balancing test." It also identified four factors among those which should be considered by a court in determining an issue of speedy trial and concluded that such cases must be approached on an ad hoc basis. We have considered these four factors. Admittedly the length of delay was quite great in the present case. However, a complex conspiracy was originally charged, and the various maneuverings which eventually led to guilty pleas by 14 of those indicted were necessarily time consuming. Although appellant has claimed prejudice by reason of the delay in bringing his case to trial, this was done in most general terms without any supporting proof. While it was claimed that a witness who would have been helpful to him died during the pendency of the case, no attempt was made to show what the testimony of this witness would have been. Likewise, the defendant complained of the uncertainty of living under a cloud for this period of time, but he did not offer proof of any measurable damage which flowed from it. In concluding that the appellant John Martinez was not deprived of a constitutional right by the delay complained of, we particularly note that he did not file a motion to suppress wiretap evidence until July 21, 1972. Since he was convicted largely on the basis of evidence obtained by a telephone intercept order and had known of the existence of this evidence since early 1970, the fact that he waited until July 1972 to seek to have such evidence suppressed indicates that he was not overly concerned with getting his case to trial during the first two years of its pendency. Applying the balancing test mandated by the Supreme Court, we find that the circumstances of this case do not justify a dismissal of the charges against appellant because of the delay which occurred between the date of his first indictment and the beginning of trial on the superseding indictment.

The Wiretap Authorization

The appellant contends that the Department of Justice failed to follow the prescribed procedures under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, for obtaining authorizations to tap certain telephones and intercept communications. Specifically he maintains that the procedures set forth in 18 U.S.C. § 2516 for authorization of an application to a federal judge for an order authorizing or approving a wire-tap and the procedure set forth in 18 U.S.C. § 2518 for obtaining such an order were not followed.

Two separate orders were issued by the chief judge of the United States District Court for the Northern District of Ohio authorizing FBI agents to intercept wire communications of a named person "and others as yet unknown" to and from telephones described by their numbers. A lengthy affidavit which had been executed by an FBI agent familiar with the activities of the person named in the application as the user of the designated telephones accompanied each application. Since evidence from the October 22 wire-tap order only was introduced, we confine ourselves to consideration of that order. Assistant Attorney General Will Wilson was identified as the officer who had authorized the application. The application and its exhibit indicated to the district judge that the authorization procedures prescribed by 18 U.S.C. § 2516 (1) and 18 U.S.C. § 2518(1) had been precisely followed. However, Martinez challenged the procedure which the government used, maintaining that there was doubt that either the Attorney General or a specially designated assistant attorney general had in fact authorized the application. In responding to this, the government revealed by affidavit that Assistant Attorney General Will Wilson had never examined the request for authorization, but that it had been examined in a special unit within the Department of Justice by attorneys whose primary function was to scrutinize such requests ". . . with particular emphasis on assuring strict adherence to the required statutory, judicial and Constitutional standards." After several reviews the request was forwarded to the "Office of the Attorney General with a detailed recommendation that the authorization be granted." The affidavit of Henry E. Petersen, who was then a deputy assistant attorney general, stated that after the application had been approved "in the Office of the Attorney General," he signed Will Wilson's name to the letter to the requesting attorney authorizing him to make application to a federal judge for an interception order. This letter, bearing the name and apparent signature of Will Wilson, but actually prepared somewhere in the Criminal Division of the Department of Justice and signed by Petersen with Wilson's name "as a ministerial act" was filed with the district judge along with the application.

No affidavits were filed by former Attorney General John N. Mitchell. However, Sol Lindenbaum, who was the Executive Assistant to the Attorney General, both at the time the request in question was processed and at the time of the hearing on the motion to suppress, filed an affidavit in which he stated that Attorney General Mitchell approved the request for authorization to make application for interception orders concerning the telephones involved in this case and he attached copies of a memorandum prepared by the Attorney General addressed to Will Wilson reflecting his favorable action on the request. Near the top of the memorandum appeared the initials "JNM." After identifying the particular request for an application, the memorandum concluded with the following language:

Pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to authorize the requesting attorney to make the above-described application.

Congress required that each application for an order and each order authorizing or approving the interception of wire or oral communication identify the officer authorizing the application. 18 U.S.C. § 2518(1)(a) and (4)(d). Where disclosure of information would be a violation of the Act, §...