US v. Mountain States Tel. & Tel. Co., Inc.

• Decision Date: 27 March 1981
• Docket Number: Civ. A. No. C81-0051.
• Citation: 516 F. Supp. 225
• Parties: The UNITED STATES of America and Robert F. Price of the Drug Enforcement Administration, United States Department of Justice, Petitioners, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, INC., Respondent.
• Court: U.S. District Court — District of Wyoming

516 F. Supp. 225

The UNITED STATES of America and Robert F. Price of the Drug Enforcement Administration, United States Department of Justice, Petitioners, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, INC., Respondent.

Civ. A. No. C81-0051.

United States District Court, D. Wyoming.

March 27, 1981.

COPYRIGHT MATERIAL OMITTED

Jeffrey C. Fisher, Asst. U.S. Atty., Dt. of Wyoming, Cheyenne, Wyo., Elizabeth M. Edson, Atty. for Drug Enforcement Administration, Dept. of Justice, Washington, D.C., for the U.S.

W. Douglas Hickey, Cheyenne, Wyo., for respondent.

MEMORANDUM OPINION AND ORDER GRANTING PETITION TO ENFORCE COMPLIANCE WITH SUBPOENA OF THE DRUG ENFORCEMENT ADMINISTRATION AND NON-DISCLOSURE OF THE EXISTENCE OF THE SUBPOENA

BRIMMER, District Judge.

The above-entitled matter having come before the Court on March 16, 1981, on this Court's Order directing Respondent to appear and show cause why Respondent should not honor Petitioners' subpoena, the Petitioners being represented by Jeffrey C. Fisher, Assistant United States Attorney, and Elizabeth M. Edson, Attorney for the Drug Enforcement Administration, Department of Justice, and Respondent being represented by W. Douglas Hickey, Esq., the Court having heard argument in support of and in opposition to the Petitioners' Petition to Enforce Subpoena of the Drug Enforcement Administration, and Petitioners' Motion for a Protective Order to prevent disclosure of the existence of the subpoena, and being otherwise fully advised in the premises, does find as follows:

FINDINGS OF FACT

Petitioner, Robert F. Price, is the Special Agent-in-Charge of the office of the Drug Enforcement Administration, hereinafter, "the D.E.A.", at Cheyenne, Wyoming. Respondent, the Mountain States Telephone and Telegraph Company, is a subsidiary company of the American Telephone and Telegraph Company, incorporated in the State of Colorado and registered to do business within the State and District of Wyoming.

Petitioner and fellow agents of the D.E.A. are presently conducting a criminal investigation into the activities of an individual who is suspected of smuggling large quantities of marijuana and cocaine into the United States. This activity is in violation of 21 U.S.C. §§ 841(a), 955, and 963, and 18 U.S.C. § 2. Respondent is in possession of certain business records, specifically, the toll records for the suspect's telephone number, which can reasonably be expected to assist in ascertaining the scope of the suspect's criminal activity and the identity of the source and/or the ultimate destination of the marijuana and cocaine. These records are vital and necessary to the successful completion of Petitioner's investigation.

On March 10, 1981, Petitioner issued a subpoena under 21 U.S.C. § 876(a) directing Respondent to produce the suspect's toll records for the period of June 1, 1980, through January 31, 1981. By letter dated March 10, 1981, Petitioner also requested that Respondent not disclose, for a period of ninety (90) days, the existence of Petitioners' request for records. Petitioner stated, and this Court specifically finds, that any such disclosure could seriously impede the investigation being conducted and thereby interfere with the enforcement of the law.

Petitioners' subpoena and letter were personally served upon Respondent on March 10, 1981, and Respondent, by letter to Petitioner dated March 10, 1981, declined to release the requested documents. On March 13, 1981, Petitioners filed a Petition with this Court to judicially enforce said subpoena, under 21 U.S.C. § 876(c). Petitioners contend that said subpoena is both lawful and constitutional and that Respondent should be directed to release the subpoenaed records.

Respondent does not contest Petitioners belief that said subpoena is lawful and constitutional. Respondent's refusal to honor said subpoena is based solely upon questions raised by the Chief Judge for the District of Colorado concerning the legality and constitutionality of Petitioners' issuance of a subpoena under 21 U.S.C. § 876 for use in a criminal investigation.

CONCLUSIONS OF LAW

I. THE SUBJECT SUBPOENA IS A LEGITIMATE EXERCISE OF THE AUTHORITY PROVIDED TO PETITIONERS BY 21 U.S.C. § 876.

The subject subpoena was issued by Petitioner for Respondent's records of an individual suspected of illegal drug trafficking. The Supreme Court has many times recognized the great concern of the public over the increasing drug problem in this country. See, e. g., U. S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980), where Justice Powell states, "The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly the young, cause greater concern than the escalating use of controlled substances."

To protect the public from this growing level of drug trafficking, Congress enacted the Controlled Substances Act of 1970, Title 21 of the U.S.Code.¹ Both 21 U.S.C. §§ 801 and 801a recognize that the purpose of Title 21 is to deal with the serious detrimental effect of controlled substances on the health and welfare of the American people. U. S. v. Jeffers, 524 F.2d 253 (CA-7, 1975); U. S. v. Chen, 473 F.Supp. 1042 (S.D.N.Y., 1979). A congressional declaration of purpose, as contained in 21 U.S.C. §§ 801 and 801a, is "in itself a declaration of public interest and policy." Virginia Railway v. System Federation No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937).

The Controlled Substances Act was intended as a comprehensive federal program to place certain drugs and other substances under strict federal controls to be administered by the Attorney General. The Act provided the Attorney General with broad administrative duties as well as enforcement duties, both criminal and civil. Drugs and various other defined substances were subject to being classified or declassified for various purposes under the Act; manufacturers and distributors were to be registered (which registrations were subject to revocation and suspension); research was to be conducted; inspections of registrants were to be made; public reports were to be made and many other controls on the legitimate drug industry were placed under the Attorney General's supervision.

In addition, the Controlled Substances Act makes the Attorney General the chief enforcement officer for purposes of both the civil and criminal penalties of the law, including enforcement of certain "prohibited acts" set forth in the Act. The individual whose records are being sought by Petitioner from Respondent is suspected of smuggling large quantities of cocaine and marijuana into the United States. This activity is prohibited by 21 U.S.C. §§ 841(a), 955 and 963.

To assist the Attorney General in enforcing the Controlled Substances Act, Congress granted him the authority to issue investigative, or administrative subpoenas. 21 U.S.C. § 876(a) provides, in part:

In any investigation relating to his functions under this subchapter with respect to controlled substances, the Attorney General may subpoena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation.

As a general rule, it is well settled that "the starting point in every case involving construction of a statute is the language itself." Teamsters v. Daniel, 439 U.S. 551, 558, 99 S.Ct. 790, 795, 58 L.Ed.2d 808 (1979); see also Touche Ross and Company v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979); Ernst and Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976).

Clearly, 21 U.S.C. § 876(a) expressly grants the Attorney General² subpoena power "in any investigation" conducted by him pursuant to his powers and duties under the Controlled Substances Act. Those investigations may be in furtherance of D.E.A.'s functions in enforcing both the regulatory and the criminal laws relating to controlled substances. Given the Congressional concern which caused the enactment of the Controlled Substances Act, a broad reading of the term "in any investigation" is consistent with the stated Congressional determination that "the illegal traffic in drugs should be attacked with the full power of the Federal Government." H.Rept.No. 91-1444.

A subpoena issued under 21 U.S.C. § 876 is not restricted for use solely in enforcing the regulatory provisions of the Controlled Substances Act.³ Had Congress intended to so limit the use of 876 subpoenas, it could have done so by limiting said subpoenas to effectuate those functions contained in Parts B and C of the subchapter, where all the regulatory functions are grouped. So too, Congress could have effected such a narrow result by limiting the use of the subpoena power "in any hearing" rather than the more expansive phrase "in any investigation". Oklahoma Press Publishing Company v. Walling, 327 U.S. 186, 66 S.Ct. 494 at 500, N. 22, 90 L.Ed. 614. Indeed, 21 U.S.C. § 875 specifically authorizes the Attorney General to issue subpoenas during the conduct of administrative hearings. As such, 21 U.S.C. § 876 would merely be redundant if Congress did not intend its subpoena power to be broader than that conferred in 21 U.S.C. § 875.

That an administrative subpoena may be used for criminal investigations is not a novel proposition, and is supported by the legislative history of 21 U.S.C. § 876. D.E. A.'s predecessor agencies have long been authorized to issue investigative or administrative subpoenas, the vast majority of which were issued for use in criminal investigations.

The roots of 21 U.S.C. § 876 may readily be traced to Pub.L. 84-362 (84th Cong., 1st Sess.) (1955), which authorized the Secretary of the...