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UNITED STATES v. CIHAL

January 13, 1972

UNITED STATES of America
v.
William CIHAL et al.


Weber, District Judge.


The opinion of the court was delivered by: WEBER

In this prosecution involving twelve co-defendants, the defendants have raised a number of objections relative to the obtaining of evidence under the wiretap provisions of Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 United States Code § 2510 et seq.

 An evidentiary hearing on the motion to suppress has been held and the United States has filed documentary material in the form of affidavits in response to the particular motion addressed to the problem herein considered, Defendants' Motion to Compel Government's Admissions to Certain Unlawful Acts. While various other motions to suppress the evidence secured by wiretap are based on other grounds not herein considered, the specific motion to compel Government's admissions to certain unlawful acts forms the basis of a specific motion to suppress on the grounds herein stated and has been so treated by the parties.

 The statute provides specific requirements applying to a motion to suppress this type of evidence:

 
"Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that --
 
(i) the communication was unlawfully intercepted;
 
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
 
(iii) the interception was not made in conformity with the order of authorization or approval." 18 U.S.C. § 2518(10)(a).

 The defendants' motion to suppress considered herein is made on the basis that the conditions imposed by 18 U.S.C. § 2516(1) were not followed:

 
"(1) 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 . . .".

 The defendants contend that neither the Attorney General, nor any Assistant Attorney General specially designated by the Attorney General, authorized the application to a Federal judge for the order authorizing or approving the interception of the communications involved herein.

 The application made to the Federal judge in the instant case contained a letter dated August 25, 1970, on the letterhead of the Department of Justice, Assistant Attorney General, Criminal Division, bearing the written signature "Will Wilson" above the typewritten designation "Will Wilson, Assistant Attorney General." The letter recites:

 
"Accordingly, you are hereby authorized, under the power specially delegated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, to make application to a judge of competent jurisdiction for an order pursuant to Section 2518 of Title 18, United States Code, authorizing the Federal Bureau of Investigation to intercept wire communications from the above-described two telephones for a period of fifteen (15) days."

 In response to the defendants' request to compel admissions of fact the Government has produced the affidavit of Henry G. Petersen, who at the time involved was a Deputy Assistant Attorney General in the Criminal Division of the Department of Justice which affidavit states that he signed the name of Will Wilson to the letter dated August 25, 1970 authorizing the application to the court, and that in so signing he acted in accordance with the authorization of Will Wilson and the standard procedures of the Criminal Division. The Petersen affidavit of December 9, further recites that "the signing of Will Wilson's name was in conformity with the standard ...


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