Appeal from the United States District Court for the District of New Jersey. D.C. Criminal No. 77-73.
Rosenn and Hunter, Circuit Judges, and Hannum, District Judge. Rosenn, Circuit Judge (dissenting).
Appellants, Pasquale Falconio*fn1 and Wally Berger, were convicted in the United States District Court for the District of New Jersey on multiple counts of conspiracy to import*fn2 and distribute*fn3 heroin, violations of the Travel Act,*fn4 and use of interstate facilities in the furtherance of these conspiracies.*fn5
The Government's proof at trial revealed that the appellants participated in a scheme to smuggle twenty pounds of heroin into the United States from Canada. The scheme was foiled by Royal Canadian Mounted Police working in league with United States authorities.
This appeal alleges numerous grounds for reversal of the convictions below. For the sake of clarity, they can be grouped into two general categories: wiretap violations and trial errors.
Appellants contend that damaging evidence introduced at trial and obtained through the interception of telephonic communications (wiretaps) should have been suppressed.*fn6 Eight reasons are assigned for this contention: the federal wire interception statute, 18 U.S.C. §§ 2510-2520, (Title III Omnibus Crime Control and Safe Streets Act of 1968) is unconstitutional; the authorization of the application for the wiretap by the Attorney General for submission to the Court was defective; the finding of probable cause for the wiretap was insufficient; the finding of necessity for the wiretap was insufficient;*fn7 the Government failed to minimize non-relevant conversations; the Government failed to secure independent authorization for a pen register; the Government failed to seal promptly the tape recordings of the wiretaps; and the Government failed to comply with the delimiting Manual for the Conduct of Electronic Surveillance promulgated by the Attorney General.
We note at the outset that this Court has held the federal wire interception statute, 18 U.S.C. §§ 2510-2520, (Title III Omnibus Crime Control and Safe Streets Act of 1968) to be constitutional: United States v. Cafero, 473 F.2d 489 (3d Cir. 1972).*fn8 That holding stands. So far as the finding of necessity for the wiretap, the Government's minimization of non-relevant conversations, and the Government's compliance with the delimiting Manual for the Conduct of Electronic Surveillance promulgated by the Attorney General, we affirm the thoughtful and thorough opinion of the district court on these issues.*fn9 The remaining issues merit discussion.
The appellants contend that the wiretaps in the instant case were not properly authorized since the Attorney General's signature was affixed by Sol Lindenbaum, his Executive Assistant. 18 U.S.C. § 2516, the authorization provision, states that the Attorney General, or any Assistant Attorney General specifically designated by the Attorney General, may authorize applications for wiretaps. The recent companion cases of United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S. Ct. 1849, 40 L. Ed. 2d 380 (1974), examined this provision and set forth guidelines for what constitutes proper authorization.
In Giordano, the Court held that Title III does not permit the authorization of wiretap applications by the Attorney General's Executive Assistant, and that evidence secured through wiretaps so authorized should be suppressed.*fn10
In Chavez, the Court held that misidentifying the Assistant Attorney General as the official authorizing the wiretap application when the Attorney General, himself, had given the approval does not run afoul of Title III, and, therefore, does not require suppression of evidence so obtained.*fn11
It is clear from a reading of these cases that the important consideration is not whose name appears on the authorization, and certainly not who signed the authorization. Rather, the important consideration is who actually granted the authorization for the wiretaps.*fn12
Turning to the instant case, Sol Lindenbaum, Executive Assistant to the Attorney General, signed the name of the then Attorney General, Richard G. Kleindienst, to the authorization for the wiretap.*fn13 This act, however, was preceded by a telephone conversation between Lindenbaum and the Attorney General during which the former advised the latter of the contents of a memorandum, recommending that the authorization be granted, prepared by the Assistant Attorney General in charge of the Criminal Division, Henry Peterson.*fn14 The Attorney General approved the request and directed Mr. Lindenbaum to sign the Attorney General's name to the authorization and to inform the Assistant Attorney General of the approval.*fn15 Three days later the Attorney General, himself, entered a file memorandum verifying the verbal authorization he had given to Mr. Lindenbaum.*fn16
From these facts, viewed in the light of Giordano and Chavez, we conclude that the authorization here was proper. Crucial to this conclusion is the fact that the Attorney General, fully aware of the facts of the specific case, had personally authorized the wiretap.
The appellants contend that probable cause was lacking for the issuance of the order for the wiretaps. In support of this contention, appellants submit that Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967); and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1966) require a more vigorous degree of probable cause for a wiretap than ordinarily required for a search warrant, and that this more vigorous degree of probable cause was lacking. We reject this submission and, in addition, hold that the facts contained in the wiretap applications meet the standards for what constitutes probable cause. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
Probable cause is not a matter of degree. Although Berger and Katz call for extra vigilance in the supervision of electronic eavesdropping,*fn17 neither case separates probable cause into degrees. Moreover, no special probable cause requirement can be found in the statutory scheme. 18 U.S.C. § 2518(3)(a), (b) and (d). ...