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UNITED STATES v. WHITAKER

May 31, 1972

UNITED STATES of America
v.
Matthew F. WHITAKER et al. (two cases)


Joseph S. Lord, III, Chief Judge.


The opinion of the court was delivered by: LORD, III

We are involved here with two gambling cases. On June 17, 1970, Matthew F. Whitaker and a number of other people were indicted under Criminal No. 70-324, accused of making interstate telephone calls for the purpose of engaging in the business of bookmaking and gambling in violation of 18 U.S.C. § 1952. Matthew F. Whitaker, along with six other defendants, most of whom were not indicted under Criminal No. 70-324, was indicted on September 17, 1970 under Criminal No. 70-515 and charged with conspiracy to use telephone facilities for the carrying on of a gambling and bookmaking business, as well as other substantive offenses not included in the first indictment. 18 U.S.C. § 371, 18 U.S.C. § 1952, 18 U.S.C. § 2.

 The government has given notice to the defendants that it intends to use at the trial of these cases the recordings of wiretaps made on the telephone of the defendant, Matthew F. Whitaker, pursuant to an order signed by then Chief Judge John W. Lord, Jr. on October 6, 1969 under the authority of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (hereinafter referred to as "Title III"). In each of the actions many of the defendants have filed motions to suppress the contents of intercepted telephone communications seized pursuant to wiretapping done under that order, as well as any other evidence obtained by the government by virtue of the wiretapping. Motions to suppress were filed in Criminal No. 70-324 by defendants Matthew F. Whitaker, James Whitaker, Peter J. Martino (who has since pleaded guilty), John Avella, Elaine Perrera, and Michael C. Benicky. In Criminal No. 70-515 the motions were made by Matthew F. Whitaker, James Whitaker, William Wilson, Peter Smith, Aldo Magnelli, and Almond Magnelli. Some of the defendants have filed other motions which we find it unnecessary to rule upon because of our conclusion that the motions to suppress should be granted.

 Defendants have raised a number of grounds in support of their motions to suppress. Since we are granting these motions because we have found Title III to be unconstitutional on its face we will first indicate why we rejected the other arguments advanced by the defendants so that it became necessary to reach the question of constitutionality.

 AUTHORIZATION OF THE APPLICATION

 Congress has provided in 18 U.S.C. § 2516(1) that applications to a federal judge for an order authorizing the interception of wire or oral communications can be made only when first authorized by the Attorney General or an Assistant Attorney General specially designated by him. In United States v. Robinson, 40 U.S.L.W. 2454 (C.A. 5, Jan. 12, 1972), a Title III wiretap was held invalid because neither the Attorney General of the United States nor any Assistant Attorney General ever personally participated in authorizing the application for the Title III wiretap involved in that case. United States v. Baldassari, 338 F. Supp. 904 (M.D. Pa. 1972). Our case is different, however, because the then Attorney General, John M. Mitchell, personally initialled a memorandum concerning the application for the order in the instant case. Many courts have concluded that an initialled memo by the Attorney General is sufficient authorization to meet the requirements of 18 U.S.C. § 2516(1). United States v. Pisacano, 459 F.2d 259 (C.A. 2, 1972); United States v. D'Amato, 340 F. Supp. 1020 (E.D. Pa., 1972); United States v. Cantor, 345 F. Supp. 1352 (E.D. Pa., 1972); United States v. Aquino, 338 F. Supp. 1080 (E.D. Mich., Jan. 17, 1972); United States v. LaGorga, 336 F. Supp. 190 (W.D. Pa. 1971). We think these decisions are sound if the action of the Attorney General can be interpreted as an authorization of the application.

 
"* * * [The] memorandum (initialled by Mitchell) would have to be analyzed to determine if the Attorney General had actually authorized the wiretap or had only specially designated an Assistant Attorney General to authorize it; in other words, in each case the court must determine if the Assistant Attorney General was delegated the power to authorize, or whether the Attorney General had authorized the wiretap and the Assistant Attorney General merely conveyed that notice of that decision." United States v. Narducci, 341 F. Supp. 1107 (Footnote 9) (E.D. Pa., 1972) (dictum) (Becker, J.)

 In making this determination, we think that both the memorandum and the surrounding circumstances should be considered. In this case, according to the affidavit of Deputy Assistant Attorney General Henry E. Peterson, *fn1" he forwarded to the office of the Attorney General the file on the proposed application which contained the suggested application, along with a proposed affidavit and order and a detailed recommendation that authorization be given. Attorney General Mitchell responded with a memo which he personally initialled where he described the proposed application in detail and indicated that Will Wilson, Assistant Attorney General, was specially delegated to authorize Richard T. Spriggs, a U.S. Attorney, to make the application. Literally reading the memorandum, we could find that Attorney General Mitchell only delegated authority to authorize the application, and did not himself authorize the application, but this would be to elevate semantics above reality. The Attorney General's memorandum was issued after he had been presented with the proposed affidavit, application and order, as well as a detailed recommendation. There certainly was enough information before the Attorney General for him personally to authorize the application, and we conclude that the approval of the application as expressed in his memorandum was in effect his personal authorization, and that the requirements of 18 U.S.C. § 2516(1) have been fulfilled. See United States v. Cafero, Crim. No. 70-445 (E.D. Pa., May 5, 1972) (Fullam, J.).

 It is provided in 18 U.S.C. § 2518(1)(a) that each application shall include the identity of the officer authorizing the application. Likewise, it is provided in 18 U.S.C. § 2518(4)(d) that the order identify the authorizing officer. The application and order in this case misidentified Assistant Attorney General Will Wilson as the authorizing officer. The question is whether this deviation from the statutory provisions provides a basis for suppressing the contents of the intercepted telephone communications. We think not. Contra, United States v. Focarile, 340 F. Supp. 1033 (D. Md., 1972). See also, United States v. Casale, 341 F. Supp. 374 (M.D. Pa., 1972). We can discern no prejudice whatsoever because the person who actually authorized the application, Attorney General John M. Mitchell, was erroneously identified as Assistant Attorney General Will Wilson. Obviously, the judge who issued the order would have acted no differently if informed that Attorney General Mitchell authorized the application. The important thing is that there was an authorization by the Attorney General or one of the Assistant Attorneys General in compliance with 18 U.S.C. § 2516(1) which insures that every such application receive the personal attention of at least one of a small number of designated individuals appointed by the President and confirmed by the Senate. *fn3" See United States v. Robinson, 40 U.S.L.W. 2454 (C.A. 5, Jan. 12, 1972).

 
"Having concluded that the Justice Department's procedures were very likely consistent with the mandate of § 2516(1), we would not be inclined to rule that the authorizations were nevertheless invalid in light of 28 U.S.C. § 2518(1)(a) & (4)(d) which require that the application and the court order indicate the officer authorizing the application. While Will Wilson was identified as the authorizing officer when in fact the Attorney General or Mr. Lindenbaum had approved the applications, this discrepancy did not meaningfully subvert the congressional scheme. * * * Perhaps the procedures adopted by the Justice Department were not the best for ascertaining the official who exercised the 'responsibility' for authorizing applications as prescribed in § 2516(1); but, * * * that procedure does nonetheless ensure that the responsible official be reasonably identifiable." United States v. Pisacano, 459 F.2d 259 (footnote 5) (C.A. 2, 1972) (dictum) (Friendly, J.).

 PROBABLE CAUSE

 Movants contend that there was no probable cause for issuance of the order authorizing the wiretapping in the instant case. The affidavit used by the government as the basis for its application is alleged to be insufficient to establish probable cause, thus it is contended that the order authorizing the wiretap was in violation of the Fourth Amendment.

 The affidavit was that of Richard C. Fritz, a Special Agent of the Federal Bureau of Investigation. His affidavit is based on information from four confidential informants, plus information he developed from a personal investigation in which he tried to corroborate the disclosures given to him by the confidential informants.

 In itself, the information supplied by informants #1, #2 and #3 does not form any basis for establishing probable cause. Though there is a showing concerning each one as to his reliability as an informer, none of the information supplied by these informers stemmed from personal observation. Each simply related to Agent Fritz what he had heard from some unidentified individual. As to these real sources of information who talked to informants #1, #2 and #3, there is an insufficient showing of reliability. See Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). No weight can be given to the information supplied by these informants toward establishing probable cause because it is hearsay on hearsay. See United States v. Roth, 391 F.2d 507 (C.A. 7, 1967).

 However, the information supplied by confidential informant #4 stands on a different footing, and along with corroborating facts developed in Agent Fritz's personal investigation, establishes probable cause. Informant #4's reliability is established by the affidavit's allegation that within the past seven months before the application was submitted, he had been providing information relative to gambling. He had done so on approximately ten occasions, with it invariably being found accurate when checked by further investigation. Not present here are the bare conclusory allegations of reliability condemned in Aguilar, supra, and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), as underlying circumstances for finding the informant reliable were disclosed to the issuing judge.

 Informant #4 concluded that Matthew F. Whitaker was engaged in bookmaking on sporting events on an intrastate and interstate basis, identifying two particular phone numbers which he used for receiving and placing wagers. The apartment in which he used these phones was also named. Furthermore, informant #4 stated that in using these telephone numbers, in order to avoid detection of the interstate nature of his wagering activity, Matthew Whitaker would charge all of his interstate gambling calls to a Pennsylvania Bell Telephone Company credit card which was in another person's name. Besides the detail of the information, what makes it particularly reliable is the manner in which it was gathered. Confidential informant #4 stated that all his information was learned by him during conversations which he had directly with the subject of the wiretap application, Matthew F. Whitaker. In addition, a check of the toll records for the credit card mentioned by informant #4 disclosed a large volume of interstate telephone calls to various locations throughout the country, including certain named ...


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