United States v. Robinson

• Decision Date: 23 March 1973
• Docket Number: No. 70-333-Cr.,70-333-Cr.
• Citation: 359 F. Supp. 52
• Court: U.S. District Court — Southern District of Florida
• Parties: UNITED STATES of America, Plaintiff, v. J. W. ROBINSON, Mario Escandar, et al., Defendants.

359 F. Supp. 52

UNITED STATES of America, Plaintiff, v. J. W. ROBINSON, Mario Escandar, et al., Defendants.

No. 70-333-Cr.

United States District Court, S. D. Florida,

March 23, 1973.

Robert W. Rust, U. S. Atty., Miami, Fla., John J. Robinson, Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Donald I. Bierman, James Jay Hogan, Miami, Fla., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW IN RE: AUTHORIZATION OF WIRETAP APPLICATIONS

MEHRTENS, District Judge.

This case is before the Court following its remand by the United States Court of Appeals for the Fifth Circuit "for an expedited evidentiary hearing to determine whether the wiretap applications in this case were properly authorized under 18 U.S.C.A. § 2516(1)."¹

Pursuant to the direction of the Court of Appeals, this Court ordered the respective parties in this case, as well as the respective parties in numerous other pending cases which also present wiretap authorization problems,² to attend a Pretrial Conference. At that conference the Government advised the Court that it was prepared to submit this case for decision upon the record as it stood before the en banc Court of Appeals with the additional introduction of an affidavit of Sol Lindenbaum, Executive Assistant to Attorney General John N. Mitchell, dated February 1, 1972, and an affidavit of Henry E. Petersen, Deputy Assistant Attorney General at the time the instant wiretaps were authorized, dated February 2, 1972.³ These two affidavits, although not technically a part of the record before the Court of Appeals during its en banc consideration of this matter, were contained in the Appendix to the Government's Supplemental Brief and did, in fact, form the substance of the Government's position at that time. Counsel for the defendants then advised this Court that it was not their intention to dispute the contents of these affidavits, and that since the affidavits showed an improper authorization the defendants had no need to present testimony.⁴ Thereafter the case was reset for legal argument.

Having reviewed and analyzed the record and the arguments of counsel, this Court has concluded that the three⁵ wiretap applications in this case were improperly authorized, resulting in the suppression of all evidence obtained directly or indirectly as a result of the wiretaps. This Court is not unmindful of the worthwhile law enforcement objectives which are thereby frustrated; however, we are a nation of laws, and if we are to continue to be so, the laws which define and limit the legitimate enterprise of Government within the scope of precious constitutional protections must be enforced with a vigor no less unrelenting than are those laws which define and limit the legitimate enterprise of individual citizens.

In concluding that the law compels the suppression of the intercepted communications and their fruits in this case, the Court makes the following factual findings:

The then-Attorney General, John N. Mitchell, played no part whatsoever in the three wiretap authorizations in the instant case. In its Supplemental Brief, the Government argued that the Attorney General was made aware of the ongoing wiretaps on the Escandar apartment and lobby phones and ratified them.⁶ The Court finds that there was no such ratification and even had there been, it hardly would have satisfied the statutory authorization requirement.

At some unspecified time prior to the authorizations in this case, the Attorney General delegated to his Executive Assistant, Sol Lindenbaum, a general authority pursuant to 28 U.S.C. § 510⁷ to authorize wiretap applications in his absence. The record is clear, however, that this delegation was not ad hoc but was, at best, general and unproscribed and was, at worst, formally nonexistent.

The three authorization decisions in this case were made by Sol Lindenbaum, the Executive Assistant to the Attorney General. The Court is compelled to this conclusion despite various documents in the record to the contrary, by the most recent affidavits of Lindenbaum⁸ and Henry E. Petersen, then Deputy Assistant Attorney General.⁹ Apart from these affidavits, the record thoroughly refutes the conclusion they compel.

In order to clarify the issue in this case, the Court is constrained to devote considerable attention to the unfortunate events which had led to the existence of the problem in the first instance. That is, until the haze was pulled from the procedures within the Justice Department by the latest affidavits, this case was permitted to proceed through this Court and the Court of Appeals upon a record made up of memoranda, letters and other Government documents which were both patently misleading and untrue.

On May 18, 1970, Sol Lindenbaum, Executive Assistant to the Attorney General, prepared and sent a memorandum¹⁰ addressed to Will Wilson, Assistant Attorney General in charge of the Criminal Division, which states, inter alia:

Pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to authorize Robert W. Rust to make the above-described application.¹¹ (emphasis added)

The memorandum bore the signed initials of the Attorney General, "J. N. M." They were signed thereon by Sol Lindenbaum.¹²

This memorandum was misleading, in that, by employing the precise language of 18 U.S.C.A. § 2516 ("specially designated"), it gave the unmistakable impression that the Attorney General had delegated the authorization decisions to Will Wilson. This memorandum was false, both because Sol Lindenbaum signed John Mitchell's initials and because Sol Lindenbaum himself had made the authorization decision.¹³ On June 10, 1970,¹⁴ and June 12, 1970,¹⁵ substantially identical misleading and false memoranda were prepared and sent to Will Wilson.

On May 19, 1970, Henry E. Petersen, then a Deputy Assistant Attorney General, sent a letter¹⁶ to Robert W. Rust, United States Attorney for the Southern District of Florida. The letter stated, inter alia:

I have reviewed your request . . . and have determined that probable cause exists to believe that Mario Escandar and . . . are engaged in the commission of offenses . . . . I have further determined that there exists probable cause to believe that the above-named persons make use of the above-described telephone . . . .

Accordingly, you are hereby authorized under the power specially designated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell . . . to make application to a judge . . . .¹⁷

The letter bore the signed name of Assistant Attorney General Will Wilson. It was signed thereon by Henry E. Petersen.¹⁸

The letter was misleading in that, by employing the language of 18 U.S.C. § 2516 ("specially delegated designated") it gave the unmistakable impression that the Attorney General had delegated the authorization decision to Will Wilson. The letter was false, both because Henry E. Petersen signed Will Wilson's name and because Will Wilson did not make the requisite review of the request or statutory determination that probable cause existed. On June 10, 1970,¹⁹ and June 12, 1970,²⁰ identical misleading and false letters were signed by Henry E. Petersen and forwarded to Robert W. Rust.

On May 21, 1970, Robert W. Rust, relying on the May 19, 1970 letter from Henry Petersen bearing Will Wilson's purported signature, submitted an application for an order authorizing the placement of a wiretap on the apartment telephone of Mario Escandar to the Honorable Charles B. Fulton, Chief Judge of this Court. This application stated, inter alia:

2. Pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, the Attorney General of the United States, the Honorable John N. Mitchell, has specially designated in this proceeding the Assistant Attorney General for the Criminal Division of the Department of Justice, the Honorable Will Wilson, to authorize affiant to make this application for an order authorizing the interception of wire communications. The letter of authorization signed by the Assistant Attorney General is attached to this application as Exhibit A.²¹

This application was false and misleading because none of the events set forth in the quoted passage had taken place as they were described therein. On June 10, 1970,²² and June 13, 1970,²³ substantially identical false and misleading applications were filed with this Court, all in reliance upon letters from Henry E. Petersen bearing the purported signature of Will Wilson.

Although, at long last, the record is now clear that Sol Lindenbaum made the authorization decisions in this case, it is of more than passing significance that the Justice Department fostered a procedure which included ghost-written false and misleading memoranda and letters. This procedure was relied upon in good faith by the United States Attorney who requested and received an order from the Chief Judge of this District permitting the surreptitious surveillance of the private conversations of numerous individuals. Had the undersigned been the judge to whom these applications were made and had the falsity of any one in the chain of authorization documents come to the Court's attention, there would have been no wiretap in this case; any wiretap which had already begun would have been terminated; and the officials involved would have been called upon to answer to the Court. Can our citizens expect less of our courts when it is beyond rational dispute that similar false and misleading documents submitted by private individuals would be treated as nothing less than contempt of court?

Having discovered, therefore, that Sol Lindenbaum as Executive Assistant to the Attorney General made the authorization decisions in this case, the Court has reached the legal conclusion that 18 U.S.C. § 2516 forbids the exercise of this function by anyone other than the Attorney General personally or...