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UNITED STATES v. FOX

September 27, 1972

UNITED STATES OF AMERICA,
v.
ROBERT CHARLES FOX, A/K/A BOB, A/K/A R. MARTIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Poos, District Judge.

OPINION OF THE COURT

This case involves the procedure utilized by the Department of Justice in initiating an application for the interception of wire and oral communications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.

Various affidavits were filed by the Government setting out the general procedure utilized in initiating an application for the interception of wire and oral communications. Whenever a formal request for authorization for an interception was received, the accompanying file which included copies of the proposed affidavit, application and order were examined by a special unit of the Organized Crime and Racketeering Section of the Criminal Division. The file was then forwarded to the Deputy Chief or Chief of the Organized Crime and Racketeering Section and then on to the office of the Assistant Attorney General of the Criminal Division where it was again reviewed by a Deputy Assistant Attorney General.

The file, with the recommendation of the Criminal Division, was then forwarded to the office of the Attorney General. Sol Lindenbaum, the Executive Assistant to the Attorney General, then reviewed the file. In most instances the file, with Sol Lindenbaum's recommendation added, was then sent in to the Attorney General for his personal authorization. In some instances Sol Lindenbaum exercised the authority of the Attorney General in authorizing the application as he had been authorized by the Attorney General's policy on such requests. An affidavit has been filed by the former Attorney General of the United States, John W. Mitchell, stating that he has verbally authorized Sol Lindenbaum, his Executive Assistant, to act on his behalf on requests for authorizations for interceptions of wire and oral communications.

There were two authorizations for the interception of wire and oral communications in this case. On October 21, 1970 the Criminal Division of the Department of Justice addressed to the Attorney General a request for approval of authorization to apply for interception orders. On November 10, 1970 the Criminal Division sought authorization for an extension of the interception obtained under the first request.

On October 21, 1970, the Attorney General of the United States approved the request that authorization be given to make application for an interception order by initialing a memorandum to Will Wilson, Assistant Attorney General, Criminal Division. The file was then sent back to the Criminal Division with this memorandum authorizing him to authorize Thomas Vockrodt to submit the authorized application to this Court. A letter of authorization dated October 22, 1970 was then dispatched to the applicant, Thomas Vockrodt, over Will Wilson's signature. Mr. Wilson's signature was placed on this particular letter by Mr. Henry Petersen, Deputy Assistant Attorney General, Criminal Division. An affidavit has been filed by the former Assistant Attorney General for the Criminal Division, Will Wilson, stating that he has authorized Deputy Assistant Attorney General, Henry E. Petersen, and Deputy Assistant Attorney General, Harold Shapiro, to sign his name to letters of authorization for application of interception of wire and oral communications.

The procedure utilized for the November 10, 1972 extension authorization was substantially the same as that utilized for the original authorization of October 21, 1972. The procedures differed when the file was sent to the Office of the Attorney General. The Attorney General did not personally authorize the extension of October 11, 1972 Order. Instead Sol Lindenbaum, the Executive Assistant to the Attorney General, placed the Attorney General's initials on the request for authorization, and sent the file back to the Criminal Division with a memorandum addressed to the Assistant Attorney General, Will Wilson, authorizing him to authorize the particular trial attorney, Thomas Vockrodt to submit the authorized application to this Court. Will Wilson's signature was affixed to the authorization for an extension by Harold Shapiro, one of his Deputy Assistants.

The question now before this Court is whether or not the procedure utilized by the Department of Justice in initiating the application of October 21, 1970 for the interception of wire and oral communications, and the extension application of November 10, 1972 under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., is within the meaning of Title 18, U.S.C. § 2516(1).

Title 18, U.S.C. § 2516(1) provides in pertinent part:

  "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 by the Federal Bureau of
  Investigation, or a Federal agency having
  responsibility for the investigation of the offense
  as to which the application is made . . ."

In United States v. Robinson, 468 F.2d 189 (C.A. 5), January 12, 1972, the Court read Section 2516(1) literally. In that case the Executive Assistant to the Attorney General of the United States, acting under authority delegated by the Attorney General, approved actions specially designating an Assistant Attorney General to authorize the application to a federal judge for the wiretaps in question. This proxy commission was then routinely executed by a Deputy Assistant Attorney General who subscribed the Assistant Attorney General's name on letters to the United States Attorney empowering him to file an application. The Government argued that direct action of the Attorney General or Assistant Attorney General personally was not needed in order to properly commence the authorization even though Section 2516(1) specially mentions the Attorney General or Assistant Attorney General. The Government cited 28 U.S.C. § 510, which provides:

  "The Attorney General may from time to time make such
  provisions as he considers appropriate authorizing
  the performance by any other officer, employee or
  agency of the Department of Justice of any function
  of the Attorney General",

and argued that this Section permits the Deputy Assistant Attorney General involved to authorize a request for authorization for the interception of wire and oral communications. The Court rejected this argument and stated that since Section 510 had existed when Section 2516(1) was enacted, the inclusion in the later statute of language specifying who the Attorney General could specially designate to perform the instigating function would have been surplusage if Congress meant that the Attorney General could authorize the performance of his duty by any officer, employee or agency of his Department. Section 2516(1), the Court concluded, was intended to operate as a limit upon Section 510 rather than that Section 510 broadened the circumscribed authority set out in Section 2516(1).

The Court in Robinson went on to discuss the legislative history of Section 2516(1). The intention of Congress was to have a publicly responsible official subject to the political process initiate a wiretap application. Congress wanted to make certain that every such matter would have the personal attention of an individual appointed by the President and confirmed by the Senate. Its reasoning, the Court stated, was that this narrow limitation to top department officials would (1) establish a unitary policy in the use of the awesome power conferred, and (2) require that power to be exercised with a ...


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