offense and further that the application was made in good faith. § 2518. The mere passage of time between the time of interception and the time of testimonial use does not allow the Government to avoid or evade these factors (probable cause, enumerated crime, ineffectiveness of other investigatory techniques and good faith). Because we fail to understand how the passage of time between the time of interception and the time of testimonial use allows the Government to alter these factors, we hold that requiring the Government to submit a judicial application immediately upon intercepting new crimes evidence is unnecessary to satisfy the purpose of § 2517(5), i.e., to safeguard a defendant from subterfuge searches and we reject the defendants' novel and ridiculous attempt to read into the statute a statute of limitations on testimonial use.
Id. at 829. Citing the district court's findings that the original authorization had been properly obtained in good faith and not as a subterfuge, and that the defendants had presented no evidence of prejudice resulting from the delay in seeking post-interception approval under § 2517(5), the court concluded that the government had made its § 2517(5), application "'as soon as practicable' before testimonial use was made of the intercepted conversations." Id. at 830.
Because in this case the government sought post-interception approval under § 2517(5) only after it had already made testimonial use of the additional conversations before the grand jury, Shields argues that the government failed to comply with the "as soon as practicable" requirement of the statute. The appropriate remedy, he argues, is dismissal of the entire superseding indictment or, in the alternative, dismissal of Counts Two through Seven, which relate to conversations covered by § 2517(5).
The Court finds dismissal unwarranted under § 2517(5). Assuming that there was a violation of § 2517(5), dismissal of the original indictment might have been an appropriate remedy in light of the government's failure to obtain judicial approval before it presented evidence to the grand jury. See United States v. Brodson, 528 F.2d 214 (7th Cir. 1975). However, the government has cured the omission by obtaining the approval, returning to the grand jury, and securing a superseding indictment. As Shields contends, this procedure does not undo whatever Title III violation there may have been in the first instance; but like the defendants in Arnold, Shields is unable to acticulate any way in which the circumstances run afoul of the principles embodied in § 2517(5) or in which his rights have been prejudiced.
Whatever technical violation of the statute the government may have committed, Shields has made no showing that the government has engaged in the type of subterfuge which § 2517(5) was intended to prevent. As set forth in the previous sections of this opinion, the original authorization to monitor Shields' chambers was lawfully obtained upon the requisite showing of probable cause. There is absolutely no evidence before the Court that the government sought that order in bad faith as a subterfuge for broader surveillance than Judge Moran actually authorized. Nor does Shields contend that the oral communications concerning offenses not specified in the August 29, 1988, authorization were obtained other than incidentally in the course of lawful surveillance. In such circumstances, Arnold makes clear that the mere delay between the interception of communications regarding additional offenses and approval to make testimonial use of such communications is not a ground to suppress the evidence, for the delay provides no opportunity for the government to evade the requirements of Title III. See id. at 829. For the same reason, the fact that the government initially obtained an indictment through improper testimonial use of the conversations is immaterial now that the defect has been cured, for no subterfuge or evasion of the requirements of Title III has been demonstrated. See United States v. Kerr, 711 F.2d 149, 152 (10th Cir. 1983) (finding no error in use of superseding indictment to cure previously unauthorized disclosure to grand jury which returned original indictment); United States v. Vento, 533 F.2d 838, 856 (3d Cir. 1976) (return of superseding indictment after approval for disclosure was obtained mooted issue as to government's failure to obtain such approval prior to seeking original indictment).
Moreover, assuming that the government did make improper testimonial use of conversations concerning offenses not specified in the original authorization order, the Court would note that such conversations necessarily would have overlapped to a great degree, if not completely, with conversations which were within the ambit of that order. Indeed, despite Shields' argument to the contrary, the attempt to interfere with commerce by extortion (Counts Two through Four) was an offense specified by the express terms of the August 29, 1988, order; the order does not simply identify "extortion," as Shields represents, but rather "offenses involving extortion," a phrasing which plainly includes attempt. Thus, disclosure of any conversations regarding the attempt charges was not subject to § 2517(5).
As to the remaining counts (Counts Five through Seven), the charges which they set forth do not appear to rest upon different conversations or a different type of underlying conduct, but instead upon matters which have little if anything to do with the type of conversations intercepted. For example, the Travel Act charge in this case (Count Five) stands apart from the other extortion-related charges only in that it rests upon the interstate travel of an undercover FBI agent which was allegedly encouraged by the defendants in furtherance of the bribery scheme. But evidence of the agent's travel was not obtained through the interception of oral communications in Shields' chambers; quite obviously it was made known to the government through other means. Moreover, the critical conversation supplying the basis for the government's charge that the travel was encouraged by the defendants was consensually monitored through a body recorder attached to the person of the government's cooperating witness, Robert Cooley; it was not obtained through electronic surveillance of Shields' chambers. Likewise, the false statement charges against Shields (Counts Six and Seven) are founded upon statements which Shields allegedly made directly to FBI agents in interviews with them, not upon oral conversations which were electronically intercepted from Shields' chambers. In sum, it does not appear that any of the charges set forth in these three counts uniquely rest upon or implicate conversations intercepted from Shields' chambers. Rather, any of the intercepted conversations which relate to these counts also relate to the charge set forth in Counts One through Four (conspiracy and attempts to interfere with commerce through extortion), offenses which fell within the ambit of the August 29, 1988, authorization. This makes plain that any violation of Title III which the government committed in making testimonial use of the conversations for the purpose of obtaining an indictment on charges other than those specified in the authorization order was purely technical, and in no way effected an end run around Title III's protections or a threat to the defendants' rights.
Shields' motion to dismiss the superseding indictment on this ground must therefore be denied.
Finally, Shields cites two purported defects in the government's post-interception application for disclosure which he contends renders Judge Moran's approval of the disclosure void. Neither need detain the Court long. First, Shields contends that the application failed to identify the law enforcement officer authorizing the application. See 18 U.S.C. §§ 2516(1) (listing officers who may authorize applications for the interception of wire or oral communications), 2518(1)(a) (requiring the application for interception to identify the officer who approved the application). This argument holds no merit, an application under § 2517(5) is not an application to intercept communications, but a request for authority to make testimonial use of communications already intercepted. Section 2517(5) does not require than any of the officers identified in § 2516(1) must approve an application made under § 2517(5), nor does it require the application identify the officer who supplied such approval, and Shields cites no authority for the proposition that such a requirement should be read into the statute.
Second, Shields argues that the application failed to establish that the August 29, 1988, order permitting surveillance was properly obtained, that the government acted in good faith and not in subterfuge in seeking the order, and that the additional communications were intercepted incidentally to the authorized surveillance. See Arnold, 773 F.2d at 829. This contention also fails. Section 2517(5) does not impose any specific requirements on the contents of the post-interception application, and although Arnold identifies the showing which the government must make in order to secure approval under § 2517(5), the contents of Judge Moran's order granting the approval reflect that such a showing was made to his satisfaction. Thus, Judge Moran expressly found that the communications concerning additional offenses were obtained in compliance with Title III, and that the authorization to engage in surveillance had been "lawfully obtained and sought in good faith by the applicants for the purpose of investigating the offenses described in that order." (Order of May 21, 1991 at 6 para. 3.) Given his familiarity with the circumstances of the authorization orders, and in light of the facts which were set forth in the government's § 2517(5) application, Judge Moran had a substantial basis for concluding that the government had satisfied the requirements of Arnold. That the government did not formally recite the considerations set forth in Arnold is immaterial, particularly in the absence of any showing that these considerations were not met.
For the reasons set forth above, Shields' motions to suppress evidence and to dismiss the superseding indictment based upon illegal electronic surveillance is denied. DeLeo's motion to suppress or dismiss the superseding indictment upon the same grounds is denied for the same reasons.