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United States v. Roberts


decided: April 3, 1973.


Swygert, Chief Judge, and Kiley and Cummings, Circuit Judges.

Author: Per Curiam

These appeals involve the question whether motions to suppress the content of intercepted telephone communications should have been granted in these four cases. Numerous persons were indicted for conducting an illegal gambling business in violation of 18 U.S.C. § 1955 and making related interstate telephone calls in violation of 18 U.S.C. § 1952.*fn1 The defendants filed motions to suppress evidence obtained by court-ordered wire interception. In part, the motions challenged the procedure used by the Department of Justice in authorizing the submission of the applications for the wire interception orders to the court. In Nos. 72-1514, 72-1637, and 72-1729, the motions to suppress were granted, and the Government appeals therefrom pursuant to 18 U.S.C. §§ 3731 and 2518 (10)(b).*fn2 In No. 72-1799 the district court denied the motion to suppress, whereupon the defendant Michael Posner entered a plea of guilty, specifically reserving, however, the right to appeal the denial of his motion to suppress. This reservation of his right to appeal on a non-jurisdictional ground was made by agreement with the prosecutor and with the acquiescence of the trial court, and defendant Posner is now appealing pursuant to the reservation.

The applicable statute, 18 U.S.C. § 2516(1), provides in pertinent part that "The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge" for an order authorizing the interception of oral or wire communications by the FBI in certain instances. In Nos. 72-1514 and 72-1637, Attorney General Mitchell did not authorize or designate an Assistant Attorney General to authorize these applications. The authorizations in question were made by Sol Lindenbaum, Executive Assistant to the Attorney General, who affixed the Attorney General's initials as per the latter's standing grant of authority to act when he was unavailable.*fn3 Mr. Lindenbaum concluded from his "knowledge of the Attorney General's actions on previous cases that he would approve the request if submitted to him." For the reasons persuasively stated by Judge Sobeloff in United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), certiorari granted, 411 U.S. 905, 93 S. Ct. 1530, 36 L. Ed. 2d 194,*fn4 we conclude that the statute empowere only the Attorney General or a specially designated Assistant Attorney General -- both of whom, in contradistinction to Mr. Lindenbaum, are subject to the political process of Senate confirmation -- personally to authorize such applications.

When Mr. Lindenbaum initially authorized the applications, he affixed the Attorney General's initials to memoranda addressed to Assistant Attorney General Will Wilson, stating that "pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise those powers for the purpose of authorizing David M. Quinn to make the above-described application." Mr. Wilson, however, did not personally authorize the application, but delegated to Deputy Assistant Attorneys General the authority to sign his name to letters of authorization for attorneys in the field. This is exactly what they did. Had the initial authorization of the application actually been made by the Attorney General (or a specially designated Assistant Attorney General), we would agree with the Government that the purported "special designation" of Mr. Will Wilson was really not the exercise of the alternative contemplated by the statute (the Attorney General never exercised this statutory prerogative) but a delegation to perform a ministerial function, which the Assistant Attorney General could subdelegate.*fn5 Moreover, although the applications submitted to the trial judge identified Assistant Attorney General Will Wilson as the authorizing officer specially designated by the Attorney General, we would not be inclined to elevate form over substance to find a violation of 18 U.S.C. § 2518(1)(a) and (4)(d), requiring the identity of the authorizing officer be transmitted to the court if there had been an initially proper authorization.*fn6 However, the fact is simply that in Nos. 72-1514 and 72-1637 there was no proper authorization at all; neither the Attorney General nor any Assistant Attorney General specially designated by the former authorized the wiretap applications. Therefore, the Government's arguments against finding a violation are founded on a non-existent premise and are unavailing,

Finally, as in Giordano, supra, the Government argues that even if there were "technical errors in the procedure used," the "drastic remedy of suppression of evidence" is unwarranted. Were it ours to decide whether or not judicially to fashion a rule of exclusion in this circumstance, we might agree with the Government. However, 18 U.S.C. §§ 2515 and 2518(10)(a) are patently clear in expressing the Congressional judgment that these intercepted communications may not be received in evidence.*fn7 United States v. Giordano, supra at 531. Therefore, the motions to suppress were properly granted in Nos. 72-1514 and 72-1637.

In No. 72-1729, the Attorney General personally approved the wiretap applications. However, Judge McMillen held that the wiretap evidence as to Leavitt and Shabas must be suppressed because the wiretaps were the progeny of the illegal wiretaps involved in No. 72-1637.*fn8 We agree. 18 U.S.C. § 2515 provides that "no evidence derived" from any intercepted wire or oral communication "may be received in evidence in any trial * * * if disclosure of that information would be in violation of this chapter." Implementing that Section, 18 U.S.C. § 2518(10)(a) provides that any aggrieved person may move to suppress "evidence derived" from an unlawfully intercepted communication, and if the motion is granted the contents of the wiretap "or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter." Taken together, these Sections required Judge McMillen to grant the motions of Leavitt and Shabas because the Government admitted that they were both overheard on the properly suppressed Smith wiretaps (in No. 72-1637) which prompted the wiretap applications in No. 72-1729. Once again, the basis for exclusion is the statutory mandate that evidence derived from an illegal wiretap be suppressed and not a judicially fashioned exclusionary rule or "fruit of the poisonous tree" doctrine arrived at by balancing the respective interests involved. While the statutory command may not be read to press the scope of suppression beyond that existing under present search and seizure law, the statute embodies the decision to suppress unlawfully obtained interceptions and evidence derived therefrom. We think it no unusual extension of the scope of suppression under existing law to conclude that the wiretap evidence in No. 72-1729 was derived from the Smith wiretap.*fn9

In No. 72-1799, involving Michael Posner, the last of the seven Detroit and Chicago wiretap orders was illegal because the interception authorization was signed by Mr. Lindenbaum instead of by the Attorney General or a specially designated Assistant Attorney General. The Government admits that some of the information supporting the first Chicago wiretap order application was obtained from the four Detroit court-authorized wiretaps. Three of those interception authorizations were signed by the Attorney General. The Government proved that the remaining one (dated April 3, 1970) was telephonically approved by the Attorney General; that satisfied Section 2516(1).*fn10 Therefore, only the evidence obtained from the final Chicago wiretap was subject to suppression. The district court must now decide if the evidence obtained from the six legal orders supported the guilty plea of Posner apart from evidence obtained through the illegal order of June 5, 1970. If so, his conviction will stand.

Orders in Nos. 72-1514, 72-1637, and 72-1729 affirmed. In No. 72-1799 the judgment is reversed and remanded for further proceedings consistent herewith.*fn11

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