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UNITED STATES v. NARDUCCI

March 23, 1972

UNITED STATES of America
v.
Frank NARDUCCI, a/k/a "Chickie", et al.


Edward R. Becker, District Judge.


The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 This is a motion to suppress the contents of certain electronically intercepted telephone conversations. The wiretaps were made pursuant to Orders entered by former Chief Judge John W. Lord, Jr. of this Court pursuant to applications by Raymond E. Makowski, a special attorney for the United States Department of Justice, under the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. ("Act"). *fn1" The defendants have been indicted for violations of 18 U.S.C. § 371 (conspiracy) and 18 U.S.C. § 1955. *fn2" According to the Government, the intercepted communications constitute the principal evidence against them.

 Title III of the Act establishes a stringent step by step procedure (spread out over some 8 1/2 pages of the U.S. Code) encompassing the entire life cycle of a wiretap. Commencing with the conception of the wiretap in the authorization by the Attorney General, the procedure then provides for its gestation in an application to a competent court requiring meticulous detail and several showings of probable cause, and its birth in the carefully parsed Order of a judge. The Act then goes on to cover such matters as the manner of conducting the interception, the inventorying and impounding of the results of the interception, the notification to the persons whose conversations were intercepted, rules of access to the recordings or tapes, and a host of other "do's" and "don't's" pertaining to wiretaps. Not even the tenure of the tap escaped the congressional pen -- thirty days is the absolute maximum length of time allowed for a particular wiretap.

 The section of the Act upon which the defendants' motion to suppress is bottomed, 18 U.S.C. § 2516(1), reads as follows:

 
"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 the Government has failed to comply with the requirements of this section because the source of the requisite wiretap authorization was not the then Attorney General John N. Mitchell, but his Executive Assistant, Sol Lindenbaum. It is conceded by the Government (see discussion of facts, infra) that Mr. Lindenbaum not only authored the memorandum of approval, but also penned the Attorney General's initials ("JNM") to it. The Lindenbaum memorandum was directed to Will Wilson, the Assistant Attorney General in charge of the Criminal Division of the Department of Justice, who, under certain circumstances (see infra), might have had the authority to authorize a wiretap application. It is also conceded by the Government that Mr. Wilson did not sign the letter; instead, his name was signed on the letter by his Deputy Assistant, Henry E. Petersen. The facts which form the bases of the motion are uncontradicted and are amplified by the filed affidavits of Attorney General Mitchell and Messrs. Lindenbaum, Wilson and Petersen. These facts, however, are not novel; they are virtually identical to the facts in five previous cases decided in federal courts throughout the land. *fn3" We turn to a discussion of the relevant statutory provisions and legislative history and of these cases. *fn4"

 I.

 In Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1947), the Supreme Court described electronic eavesdropping, as by its very nature, "an intrusion of privacy that is broad in scope," and observed that "[few] threats to liberty exist which are greater than that posed by the use of eavesdropping devices." Id. at 56, 63, 87 S. Ct. at 1885. A reading of Title III and its legislative history leaves no doubt that Congress intended to prohibit all wiretapping and electronic surveillance except by law enforcement officials investigating certain enumerated crimes and under a carefully circumscribed and strictly controlled procedure. *fn5" The legislative history further states specifically that the procedure was intended to conform to the constitutional standards enunciated in Berger and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). See United States v. Baldassari et al., 338 F. Supp. 904, at 905 (M.D. Pa. 1972); United States v. Cox, 449 F.2d 679, 684 (10th Cir. 1971). For the legislative history, see generally, U.S. Code Cong. and Admin. News, Cong. 2d Session 1968, vol. 2, pp. 2112 et seq.

 The Government's first line of defense to the motion rests on its contention that the core of Title III proceedings lie in the neutral judicial determination of probable cause. The Government suggests that this determination of probable cause is the main course as it were in Title III proceedings, and that the authorization which sets them in motion is like the appetizer which can be dispensed with. While we agree (see discussion at IV infra), that the judicial probable cause determination is a sine qua non of satisfying the requirements of the Fourth Amendment as enunciated in Berger and Katz, we do not agree that the authorization procedure is a technical step along the way, scrupulous observance of which can be ignored. For, it is clear to us that the drafters of Title III were equally concerned with the responsibility and, therefore, the identity of the persons initiating the wiretap application and the manner in which they did so. Senate Report 1097, *fn6" in referring to § 2516(1) states:

 
"Paragraph (1) provides that the Attorney General, or any Assistant Attorney General of the Department of Justice specifically designated by him, may authorize an application for an order authorizing the interception of wire or oral communications. This provision centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to an identifiable person. This provision in itself should go a long way toward guaranteeing that no abuses will happen. 1968 U.S. Code Cong. & Adm. News, p. 2185." (emphasis added).

 Commenting upon this Report, Judge Clark, speaking for the Fifth Circuit in the leading case of United States v. Robinson et al., 468 F.2d 189 (5th Cir. 1972), trenchantly stated:

 
"By expressing its intention that only 'a publicly responsible official subject to the political process' could 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. *fn6" Its reasoning 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 circumspection re-enforced by ready identifiability of he who was responsible for its use, thus maximizing the guarantee that abuses would not occur." United States v. Robinson, supra at 5-6.

 At a later point in the opinion, in comparing the power to authorize the initiation of wiretap proceedings with the power to grant immunity from prosecution to witnesses whose testimony is necessary to the public interest (which has been held to be delegable by the Attorney General under 28 U.S.C. § 510 *fn7" (see discussion infra), Judge Clark observed:

 
"The decision to ask a court to compel testimony with a consequent grant of immunity does not involve an action even approaching the gravity which attaches to the decision to apply for permission to engage in secret electronic surveillance. Congress could justifiably feel it important that the public know that only an identifiable person subject to the political process could trigger the unknown, unseen, unheard intrusion into private affairs that are constitutionally protected against unreasonable searches, entitled to freedom from self-incriminatory results, and presumptively innocent. With equal propriety, Congress could choose to permit a broader number of properly designated persons to ask a court to require a witness to relate facts he knows and, as a price therefor, relieve him of prosecution for his involvement and past actions which are often already fully known to the law and many times the subject of public charges." (footnote omitted). United States v. Robinson, supra at 8-9.

 We concur in the Robinson court's view of the legislative history of Title III's wiretap provisions.

 II.

 The factual record before us on the question involved consists principally of affidavits submitted by the Government from Attorney General Mitchell, Executive Assistant Attorney General Lindenbaum, Assistant Attorney General Wilson and Deputy Assistant Attorney General Henry Petersen. Unlike the Lindenbaum and Petersen affidavits which are specific, the affidavits of the Attorney General and Mr. Wilson are in the nature of statements of general policy related to the subject of wiretap authorizations and were intended to cover the entire series of cases of which this is but one; *fn8" they do not discuss the facts of this particular case. The substance of the affidavits may be summarized as follows.

 The affidavit of Attorney General Mitchell which was dated February 18, 1972 discusses the procedure used by the Department of Justice in processing wiretap requests. Mr. Mitchell states that, although 18 U.S.C. 2516(1) permitted him to delegate to certain officials the power to authorize wiretaps, he nonetheless required that all requests be forwarded to him for his personal consideration. The requests were accompanied by the recommendations of the Executive Assistant Attorney General, Sol Lindenbaum. If the Attorney General approved the request, he would indicate his approval by initiating a memorandum to the Assistant Attorney General in ...


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