United States v. Narducci, Crim. No. 71-312.
Decision Date | 23 March 1972 |
Docket Number | Crim. No. 71-312. |
Citation | 341 F. Supp. 1107 |
Parties | UNITED STATES of America v. Frank NARDUCCI, a/k/a "Chickie", et al. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Louis C. Bechtle, U. S. Atty., Robert Kelly, Joel Slomsky, Asst. U. S. Attys., Philadelphia, Pa., for plaintiff.
George Gershenfeld, Anthony DeFino, Herbert Ocks, Edward Reif, Alfred Marroletti, Louis Lipschitz, Isadore A. Shrager, Herbert Hardin, Philadelphia, Pa., for defendants.
This is a motion to suppress the contents of certain electronically intercepted telephone conversations. The wiretaps were made pursuant to Orders entered by former Chief Judge John W. Lord, Jr. of this Court pursuant to applications by Raymond E. Makowski, a special attorney for the United States Department of Justice, under the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. ("Act").1 The defendants have been indicted for violations of 18 U.S.C. § 371 (conspiracy) and 18 U.S.C. § 1955.2 According to the Government, the intercepted communications constitute the principal evidence against them.
Title III of the Act establishes a stringent step by step procedure (spread out over some 8½ pages of the U. S. Code) encompassing the entire life cycle of a wiretap. Commencing with the conception of the wiretap in the authorization by the Attorney General, the procedure then provides for its gestation in an application to a competent court requiring meticulous detail and several showings of probable cause, and its birth in the carefully parsed Order of a judge. The Act then goes on to cover such matters as the manner of conducting the interception, the inventorying and impounding of the results of the interception, the notification to the persons whose conversations were intercepted, rules of access to the recordings or tapes, and a host of other "do's" and "don't's" pertaining to wiretaps. Not even the tenure of the tap escaped the congressional pen — thirty days is the absolute maximum length of time allowed for a particular wiretap.
The section of the Act upon which the defendants' motion to suppress is bottomed, 18 U.S.C. § 2516(1), reads as follows:
"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. It is conceded by the Government (see discussion of facts, infra) that Mr. Lindenbaum not only authored the memorandum of approval, but also penned the Attorney General's initials ("JNM") to it. The Lindenbaum memorandum was directed to Will Wilson, the Assistant Attorney General in charge of the Criminal Division of the Department of Justice, who, under certain circumstances (see infra), might have had the authority to authorize a wiretap application. It is also conceded by the Government that Mr. Wilson did not sign the letter; instead, his name was signed on the letter by his Deputy Assistant, Henry E. Petersen. The facts which form the bases of the motion are uncontradicted and are amplified by the filed affidavits of Attorney General Mitchell and Messrs. Lindenbaum, Wilson and Petersen. These facts, however, are not novel; they are virtually identical to the facts in five previous cases decided in federal courts throughout the land.3 We turn to a discussion of the relevant statutory provisions and legislative history and of these cases.4
In Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1947), the Supreme Court described electronic eavesdropping, as by its very nature, "an intrusion of privacy that is broad in scope," and observed that "few threats to liberty exist which are greater than that posed by the use of eavesdropping devices." Id. at 56, 63, 87 S.Ct. at 1885. A reading of Title III and its legislative history leaves no doubt that Congress intended to prohibit all wiretapping and electronic surveillance except by law enforcement officials investigating certain enumerated crimes and under a carefully circumscribed and strictly controlled procedure.5 The legislative history further states specifically that the procedure was intended to conform to the constitutional standards enunciated in Berger and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See United States v. Baldassari et al., 338 F.Supp. 904, at 905 (M.D. Pa.1972); United States v. Cox, 449 F. 2d 679, 684 (10th Cir. 1971). For the legislative history, see generally, U.S. Code Cong. and Admin.News, Cong. 2d Session 1968, vol. 2, pp. 2112 et seq.
The Government's first line of defense to the motion rests on its contention that the core of Title III proceedings lie in the neutral judicial determination of probable cause. The Government suggests that this determination of probable cause is the main course as it were in Title III proceedings, and that the authorization which sets them in motion is like the appetizer which can be dispensed with. While we agree (see discussion at IV infra), that the judicial probable cause determination is a sine qua non of satisfying the requirements of the Fourth Amendment as enunciated in Berger and Katz, we do not agree that the authorization procedure is a technical step along the way, scrupulous observance of which can be ignored. For, it is clear to us that the drafters of Title III were equally concerned with the responsibility and, therefore, the identity of the persons initiating the wiretap application and the manner in which they did so. Senate Report 1097,6 in referring to § 2516(1) states:
(emphasis added).
Commenting upon this Report, Judge Clark, speaking for the Fifth Circuit in the leading case of United States v. Robinson et al., Crim. No. 71-1058 (5th Cir., filed Jan. 12, 1972), trenchantly stated:
At a later point in the opinion, in comparing the power to authorize the initiation of wiretap proceedings with the power to grant immunity from prosecution to witnesses whose testimony is necessary to the public interest (which has been held to be delegable by the Attorney General under 28 U.S.C. § 5107 (see discussion infra), Judge Clark observed:
(footnote omitted). United States v. Robinson, supra at 8-9.
We concur in the Robinson court's view of the legislative history of Title III's wiretap provisions.
The factual record before us on the question involved consists principally of affidavits submitted by the Government from Attorney General Mitchell, Executive Assistant Attorney General Lindenbaum, Assistant Attorney General Wilson and Deputy Assistant Attorney General Henry Petersen. Unlike the Lindenbaum and Petersen affidavits which are specific, the affidavits of the Attorney General and Mr. Wilson are in the nature of statements of general policy related to the subject of wiretap authorizations and were intended to cover the entire series of cases of which this is but one;8 they do not discuss the facts of this particular case. The substance of the affidavits may be...
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