United States v. Swanson, Crim. No. R-74-79 BRT.

• Decision Date: 15 July 1975
• Docket Number: Crim. No. R-74-79 BRT.
• Parties: UNITED STATES of America, Plaintiff, v. Harmon Northrop SWANSON et al., Defendants.
• Court: U.S. District Court — District of Nevada

399 F. Supp. 441

UNITED STATES of America, Plaintiff, v. Harmon Northrop SWANSON et al., Defendants.

Crim. No. R-74-79 BRT.

United States District Court, D. Nevada.

July 15, 1975.

Lawrence J. Semenza, U. S. Atty, Reno, Nev. and Frank Kear, Sp. Atty., U. S. Dept. of Justice, Los Angeles, Cal., for plaintiff.

Oscar B. Goodman, Goodman & Snyder, Las Vegas, Nev., for Harmon Northrup Swanson.

Richard J. Legarza, Reno, Nev., for Charles Eugene Travella.

Willard Van Hazel, U. S. Public Defender, Reno, Nev., for James Donald Wiley.

LeRoy Arrascada, Reno, Nev., for Lawrence Elwood Werry.

Mark L. Tuft, James Brosnahan, Jr., Cooper, White & Cooper, San Francisco, Cal., for Lewis Alfred Marsten, Jr.

ORDER GRANTING MOTIONS TO SUPPRESS

THOMPSON, District Judge.

The defendants have moved to suppress evidence acquired by electronic surveillance pursuant to authorization orders entered by Judge Roger D. Foley in December 1971.

The authorizations for the wiretaps were obtained at a time and under circumstances which have spawned much litigation under the regime of John N. Mitchell as Attorney General of the United States. The initial application for authorization on December 15, 1971 recited that the Attorney General had specially designated Acting Assistant Attorney General Henry E. Peterson to authorize the application and that Peterson, in turn, had authorized it, his letter of authorization being attached to the application.

Similarly, the application presented to Judge Foley on December 30, 1971 for an order authorizing continuance of the interception of wire communications recited that the Attorney General had specially designated Acting Assistant Attorney General Henry E. Peterson to authorize the application and his letter of authorization was attached.

Section 2516, Title 18, United States Code, permits "The Attorney General, or any Assistant Attorney General specially designated by the Attorney General" to authorize the application. An Assistant Attorney General is an officer of the United States appointed by the President by and with the advice and consent of the Senate. 28 U.S.C. § 506.

United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), makes it clear that the authority to initiate a wiretap authorization is strictly limited to the officers named in the statute. "The mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition to any judicial order" (Giordano, pp. 515-516, 94 S.Ct. p. 1827). Until an Assistant Attorney General designate has been confirmed by the Senate, he does not qualify.

The Government, nevertheless, argues that the wiretaps in question were, in fact, authorized by the Attorney General himself and seeks to draw the case under the cloak of United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), in which the Supreme Court held that when the Attorney General has in fact authorized the application to be made but the application and the court order incorrectly identify an Assistant Attorney General as the authorizing official, the statute does not mandate suppression of the evidence obtained.

We note, however, that this case differs from both Giordano and Chavez where the application and court order identified as an authorizing official a person who was by statute designated to authorize the application. An Acting Assistant Attorney General does not have that capacity. Until his appointment has been confirmed and he has assumed the office of Assistant Attorney General, he has not been qualified by law as a responsible Department of Justice official with mature judgment.

The statute (18 U.S.C. § 2518(10)(a) (ii)) requires suppression if "the order of authorization or approval under which it was intercepted is insufficient on its face." That is this case.

An evidentiary hearing with respect to the motions to suppress was held on June 16, 1975. The exact occurrences with respect to the December 1971 wiretap authorizations have been befogged by lapse of time. They may be reconstructed if the Government's version of the events is to be believed.

Unsigned drafts of proposed affidavits of John A. Norris, Special Agent, Federal Bureau of Investigation, Reno, Nevada, were received by the Special Operations Unit, Organized Crime and Racketeering Section, Department of Justice, Washington, D. C., on December 7, 1971 from James E. Ritchie, Department of Justice attorney in charge of the San Francisco Strike Force office. The documentation for the application reached Mr. Sol Lindenbaum, Executive Assistant to the Attorney General. On December 15, 1971, Attorney General John N. Mitchell initialed a memorandum specially designating Mr. Peterson "to exercise those powers" (under 18 U.S.C. § 2518) for the purpose of authorizing James E. Ritchie to make the above described application. Both Mr. Lindenbaum and Mr. Mitchell have, by affidavit, averred the authenticity of Mr. Mitchell's initials. Neither has a memory of the specific transaction. The memorandum does not expressly or by implication state that Mr. Mitchell approved the wiretap. Neither Mitchell nor Lindenbaum testified at the hearing. The memorandum was followed by Mr. Peterson's purported letter of authorization which was acted upon by Judge Foley.

The application for an extension followed a somewhat similar course. Mr. Mitchell was in Phoenix, Arizona. Mr. Lindenbaum communicated with him by telephone and Mr. Mitchell authorized Lindenbaum to place Mitchell's initials on a similar memorandum of Peterson. This was done and a Peterson authorization letter was prepared, but Peterson did not personally sign it. He was in the Caribbean and a Deputy, Mr. Shapiro, signed the letter for him, presumably after telephonic communication, although neither Mr. Shapiro nor Mr. Peterson testified.

With the exception of the special designation of an unauthorized person (Peterson) to exercise the statutory powers to approve a wiretap, I do not fault the procedures followed. A busy public official cannot be in his office one hundred per cent of the time. Communication by telephone is frequently necessary. The oral authorization of a Deputy as an amanuensis of initial or sign a communication on behalf of the principal is essential in the conduct of modern transactions in business and public affairs. There is a serious question, however, with respect to whether Mr. Mitchell did personally approve the wiretap authorization. Did he exercise his own judgment on the merits or did he delegate that responsibility to Peterson? No one remembers. The record, that is, the two memoranda to Peterson persuade me that it was the intention that Mr. Peterson should exercise his own judgment. Else why specially designate anyone? The Attorney General himself might just as easily have signed the approval letter or authorized someone to sign it for him. Cf. United States v. Vasquez, D.C., 348 F.Supp. 532; D.C., 387 F.Supp. 83.

With respect to defendants Travella and Marsten, there is an additional problem. The statute (18 U.S.C. § 2518(8)(d)) requires an inventory to be served within ninety days upon "such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice." The reason and importance for this requirement have been fully explicated in United States v. Chun, 503 F.2d 533 (9th Cir. 1974). Both Travella and Marsten were identified in January 1972 as participants to the intercepted communications. An inventory order was entered by Judge Foley on April 10, 1972. The identity of neither was disclosed to him. Yet, on January 17, 1972, a search warrant had been obtained, based on the interceptions, to search Travella's home, and on July 23, 1974, Marsten was summoned as a witness before a District of Nevada Grand Jury. A Supplemental Inventory Order for service of an inventory on Travella and Marsten was not obtained until October 25, 1974. Under the principles enunciated in the Chun case, these two defendants are entitled to suppression for violation of the inventory requirements of the statute.

All defendants also complain of the insufficiency of the applications for wiretaps presented to Judge Foley. The statute (18 U.S.C. § 2518(1)(e)) requires:

"Each application shall

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