Appeal from the United States District Court for the Eastern District of Wisconsin, No. 75 C 33 MYRON L. GORDON, Judge.
Swygert, Circuit Judge, Markey, Chief Judge, Court of Customs and Patent Appeals*fn* and Jameson, Senior District Judge.*fn**
JAMESON, Senior District Judge:
Petitioner, Andrew Joseph Machi, filed a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction for illegal gambling activities, claiming that illegal wiretap evidence had been admitted in his trial. The district court granted the motion on the ground that the Attorney General had not properly reviewed and approved the application for the wiretap. We reverse, finding the issue raised by Machi insufficient to warrant § 2255 relief and that the wiretap was properly authorized and valid.
On December 4, 1970, following an investigation by federal officers of interstate gambling and racketeering, Machi and five co-defendants were indicted on eight counts charging conspiracy and the use of interstate telephones with the intent to carry on an illegal gambling business in violation of 18 U.S.C. §§ 371 and 1952. In a non-jury trial the Government introduced evidence obtained through monitoring telephones in and near Machi's home. The evidence showed that Machi had been involved in extensive bookmaking and betting activities.
In a motion to suppress the wiretap evidence, considered prior to trial, Machi contended that the application for the wiretap did not establish probable cause and did not comply with 18 U.S.C. § 2518 because it did not adequately describe the failure of other investigative techniques thus indicating the necessity of telephone monitoring. The district court denied the motion, admitted the evidence,*fn1 and on October 11, 1972 found Machi guilty of six of the counts with which he was charged. Machi appealed his conviction. On appeal he did not raise the issue concerning the legality of the wiretap evidence admitted at the trial, but argued that his conduct did not violate 18 U.S.C. § 1952, claiming that it was intrastate in character. By unpublished order dated July 10, 1973 this court affirmed, holding that the interstate telephone calls were sufficient to make § 1952 operable.
Machi's § 2255 petition for "a writ of habeas corpus" was filed on January 21, 1975, raising an issue which had not been called to the attention of either the district court or this court on appeal. The petition alleged that the wiretap evidence introduced at the trial should have been suppressed because the wiretap application "did not contain the authorization of the attorney general or his specially designated assistant", as required by 18 U.S.C. § 2516(1). In opposing the motion the Government filed an affidavit of Sol Lindenbaum, Executive Assistant to the Attorney General. The affidavit stated that on September 4, 1970, the "Criminal Division of the Department of Justice addressed to the Attorney General a request for approval of authorization to apply for an interception order". The affidavit continued in pertinent part:
"As Attorney General John N. Mitchell was outside the city of Washington, D.C., I conferred with him telephonically and advised him orally of the substance of a memorandum of recommendation received from the Criminal Division of a proposed memorandum of approval from him to Will Wilson. The memorandum of recommendation was for approval of a request for authorization to make application for a wire interception order with respect to three telephone lines in West Allis and Milwaukee, Wisconsin. He orally approved the recommendation of the Criminal Division, and I thereupon caused his initials to be placed on the memorandum to Will Wilson."
Following the submission of briefs and oral argument, the district court granted Machi's petition, concluding "that § 2516(1) required Mr. Mitchell to have before him more basic information and unscreened data in order for him to make an independent judgment concerning the wisdom of seeking a wiretap order than was possible considering the procedures utilized in this case".*fn2
The Government contends that:
(1) The waiver provisions of 18 U.S.C. § 2518(10)(a) preclude this collateral attack because the grounds for the attack were available before trial.
(2) The defect in the wiretap application was of insufficient magnitude to warrant granting of ...