US v. Ward

• Decision Date: 15 September 1992
• Docket Number: No. CR192-049.,CR192-049.
• Parties: UNITED STATES of America v. Leon Cletus "Bruno" WARD, et al.
• Court: U.S. District Court — Southern District of Georgia

808 F. Supp. 803

UNITED STATES of America v. Leon Cletus "Bruno" WARD, et al.

No. CR192-049.

United States District Court, S.D. Georgia, Augusta Division.

September 15, 1992.

Thomas W. Tucker, Augusta, GA, for Leon Cletus Ward.

Richard A. Wright, and Richard Allen, for William E. Baxter.

Bernard Dunstan, Augusta, GA, for Ben Cheek.

Larry Broyles and Celeste Jones, Chicago, IL, for James T. Lester.

Ed Tolley, Athens, GA, for Christopher Nicholson.

Edward T. Garland, Atlanta, GA, for Norman A. Boulus.

Charles Sheppard, Augusta, GA, for Robert G. Dickens.

Mike Garrett, Augusta, GA, for Frank C. Tiller.

Herbert Kernaghan, Augusta, GA, for William A. Anderson.

James Purcell, Augusta, GA, and Freddie Sanders, for Nickie Marks.

Martin Puetz, Augusta, GA, for Richard F. Oglesby.

Jim Ellington, Augusta, GA, for Rufus M. Smith.

William Fletcher, Norcross, GA, for Jesse Moore.

Peter Johnson, Augusta, GA, for Michael Lamar Wallace.

Maureen Floyd, Martinez, GA, for Robert D. Wallens.

Jim Ellison, Augusta, GA, for William B. Swann.

ORDER

BOWEN, District Judge.

Before the Court is that portion of the September 8, 1992, Magistrate's Report and Recommendation which recommended suppression of electronic wire interceptions obtained pursuant to this Court's Orders of December 21, 1990, and January 18, 1991, and suppression of evidence obtained from searches executed pursuant to warrants on January 28, 1991. Objections have been filed to that portion of the September 8, 1992, Report and Recommendation.

I. BACKGROUND

In December 1990 and January 1991, an Assistant Attorney General of the United States authorized the United States Attorney for the Southern District of Georgia to apply to this Court for an order under 18 U.S.C. § 2518, authorizing the interception of wire and oral communications. The Government's applications asserted that there was probable cause to believe certain named individuals, now defendants in this case, had committed and were committing certain offenses, including, inter alia, violations of 18 U.S.C. § 1953 and 26 U.S.C. § 7201. The Court authorized the wiretaps in reliance upon the Government's applications and supporting affidavits, and the Government executed the order. As a result of information received from the intercepts, search warrant applications were made to the Court, warrants were issued, and the searches were executed.

Violations of 18 U.S.C. § 1953 and 26 U.S.C. § 7201 are not included among the offenses listed in 18 U.S.C. § 2516 for which wiretaps may be authorized. Upon motion, the Magistrate recommended that the wiretap evidence be suppressed because the application and order of authorization included offenses which are not listed in § 2516. The Magistrate further recommended that evidence obtained from searches executed pursuant to warrants issued January 28, 1991, be suppressed because the searches were directly attributable to the illegal intercepts.

II. ANALYSIS

A. The Intercepts

The question of whether wiretap evidence should be suppressed when the applications and orders authorizing the wiretaps included within their scope offenses which are not listed in 18 U.S.C. § 2516 appears to be one of first impression.

Congress adopted comprehensive legislation on the subject of wiretapping and electronic surveillance by enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 212 (codified as amended at 18 U.S.C. §§ 2510-2520). Under Title III, the Government's authority to intercept wire and oral communications is an island in a sea of privacy. Title 18 U.S.C. § 2516 authorizes application and order for a wiretap when the interception might provide or has provided evidence of specific listed offenses. 18 U.S.C. § 2518 provides that the contents of any wire or oral communications intercepted pursuant to the chapter, or evidence derived therefrom, may be suppressed when the communication was "unlawfully intercepted" or the order of authorization or approval under which it was intercepted was insufficient on its face. 18 U.S.C. § 2518(10)(a). Although not every failure to fully comply with the statutory requirements of Title III renders an interception unlawful, United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 1855-56, 40 L.Ed.2d 380 (1974), suppression is required when there is failure to comply with a statutory requirement that "directly and substantially implements the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974).

In Giordano, the Court held that suppression was required where the wiretap application was purportedly authorized by a specially designated Assistant Attorney General in accordance with the statutory provision for authorization, but the application was actually authorized by the Attorney General's Executive Assistant. The Court determined that Congress intended to "condition the use of intercept procedures upon the judgment of a senior official in the Department of Justice that the situation is one of those warranting their use." Id. at 527, 94 S.Ct. at 1832. The provision for pre-application approval "was intended to play a central role in the statutory scheme," id. at 528, 94 S.Ct. at 1832, and "directly and substantially" implemented Congress's limiting intentions. See id. at 527-28, 94 S.Ct. at 1832. Failure to meet the authorization requirement thus warranted suppression of evidence directly or indirectly obtained from the wiretap. Id. at 528, 533, 94 S.Ct. at 1832, 1835.

In the companion case of Chavez, however, the Court held that suppressing a wiretap was error where the application misidentified the authorizing official but the proper official had actually authorized the application. Misidentification in that instance "did not affect the fulfillment of any of the reviewing or approval functions required by Congress," id. at 575, 94 S.Ct. at 1856, nor did the identification reporting requirements occupy a "central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance." Id. at 578, 94 S.Ct. at 1857.

As in Giordano and Chavez, the issue here is whether there has been failure to satisfy a provision of Title III that "directly and substantially" implements Congress's limiting intent regarding use of wiretaps. Although the fact-pattern here differs from that in Giordano, the Supreme Court's examination in that case of the purpose behind Title III sheds light on the present inquiry. "The purpose of the legislation ... was effectively to prohibit ... all interceptions of oral and wire communications, except those specifically provided for in the Act...." Giordano, 416 U.S. at 514, 94 S.Ct. at 1826. Although "the Act is not as clear in some respects as it might be, ... it is at once apparent that it ... limits the crimes for which intercept authority may be obtained...." Id. at 515, 94 S.Ct. at 1826. Compliance with § 2516 is therefore no mere technicality; Congress took deliberate steps to restrict wiretap authorizations to a specific list of offenses. Section 2516 thus plays a "central and functional" role in furthering Congress's legislative purpose to guard against unwarranted use of wiretapping or electronic surveillance, and it "directly and substantially" implements Congress's limiting intent regarding this intrusive technique. An application cannot be sought, nor an order entered, authorizing interceptions to gather evidence of offenses not enumerated in § 2516. Those persons who were parties to the intercepted communications or against whom the interceptions were directed are entitled to suppression. 18 U.S.C. §§ 2510(11), 2518(10)(a).

Although there is authority for the proposition that offenses not listed in § 2516 may be included as part of a wiretap authorization, In re Grand Jury Subpoena Served on Doe, 889 F.2d 384 (2d Cir.1989), cert. denied, Doe v. United States, 494 U.S. 1079, 110 S.Ct. 1806, 108 L.Ed.2d 937 (1990), that decision is not binding on this Court. Furthermore, in Doe, the appellate court held that suppression was not warranted when the government applied for, and was granted, an amended order authorizing wiretaps for crimes that could not have been the subject of wiretaps in the first instance because they were not enumerated in § 2516. The government had shown that the original order had been lawfully obtained, and the communication regarding the unlisted offense which prompted the application for the amended order was incidentally intercepted during the course of the original lawfully executed order. Doe is therefore distinguishable from the present case.

The Government states in its objection to the Magistrate's Report that the intent behind including the unlisted offenses in the applications was to be candid with this Court concerning "all relevant information concerning the investigation," and that to exclude the code sections from the application "would amount to deliberately hiding the fact that § 1953 and § 7201 evidence might be intercepted." The Government is obligated to minimize interception of communications not otherwise subject to interception under Title III. 18 U.S.C. § 2518(5). Of course, evidence of any offense not listed in 18 U.S.C. § 2516 might be incidentally intercepted during a wiretap, and the proper procedure for pursuing intercepts regarding incidentally discovered communications concerning other offenses would be to seek, as in Doe, an amended order pursuant to § 2517(5). In the present case, however, the unlisted offenses were included in original applications and orders. The repeated references to 18 U.S.C. § 1953 and 26 U.S.C. § 7201 in the applications and supporting affidavits were no "mere inclusions of information about other crimes the targets are committing."...