conversations), and that a subsequent investigation revealed that the telephone company admitted installing the device at the request of a person whose identity it would not reveal.
The Government, in its response to the witness's affidavit, pointed out in connection with the alleged pen register incident, that a pen register can record telephone numbers not conversations. Thus, the witness's communications could not possibly have been overheard. The Government also responded to the witness's claim that Agent Parks was unaware of electronic surveillance that occurred in connection with this investigation by stating that the incident to which the witness referred was part of an entirely separate investigation concerning a person who was also being investigated in the instant inquiry but was never overheard in the instant investigation.
The witness argues that in light of his allegations the Government's denial of electronic surveillance is inadequate and must contain a check of the seven agencies which customarily conduct electronic surveillance. A seven agency check may be required in certain instances, however, we find that in this case the Government's denial is sufficient to satisfy § 3504.
Although our Third Circuit has considered § 3504 responses, the recent decisions are situations where the Government had done a seven agency check and the witness contended that such a check was not sufficient. Matter of Grand Jury Impaneled, January 21, 1975, 529 F.2d 543 (3d Cir.), cert. denied, 425 U.S. 992, 96 S. Ct. 2203, 48 L. Ed. 2d 816 (1976); United States v. D'Andrea, 495 F.2d 1170 (3d Cir.), cert. denied, 419 U.S. 855, 42 L. Ed. 2d 88, 95 S. Ct. 101 (1974). Our attention has not been called to any case in which the Third Circuit has considered the circumstances under which a lesser showing is sufficient.
In United States v. Weiner, 418 F. Supp. 941 (M.D. Pa.) aff'd, 546 F.2d 420, 421 (3d Cir. 1976), cert. denied 429 U.S. 1105, 51 L. Ed. 2d 557, 97 S. Ct. 1135 (1977), Judge Nealon ruled upon the sufficiency of the Government's denial of electronic eavesdropping in connection with a grand jury investigation into the harboring of Patty Hearst. Emphasizing the extraordinary nature of the case involving "national overtones", the Court required a seven agency check. Judge Nealon cautioned, however, that in the ordinary case the affidavits of the United States attorney and the agent in charge of the case may suffice. 418 F. Supp. at 944.
In In Re Grusse, 402 F. Supp. 1232 (D. Conn.), aff'd 515 F.2d 157 (2d Cir. 1975), the District Court held that the Government's denial may properly be based upon an inquiry directed solely to the investigator having supervisory responsibilities for the matter. In that case the Court relied upon an affidavit filed by the Assistant United States Attorney assigned to the matter who had only checked with the FBI. The affidavit in Grusse is far less detailed and informative than the affidavits in the instant case, which reveal all of the surveillance conducted in the entire investigation. As stated by Judge Lumbard in his concurring opinion in the Circuit Court,
It must be remembered that any electronic surveillance by the government is relevant only if it is somehow used in formulating questions that the grand jury intends to ask. Thus, surveillance conducted by the government, the results of which were not known to the agents investigating this case, would not be relevant. . . . I think that the assistant United States Attorney handling a case and the FBI agent in charge of the investigation of a case are the two people most likely to know if the fruits of any electronic surveillance were used to gain information on which the grand jury would base its questions. Thus, I think that the denial was sufficient. (footnotes omitted). 515 F.2d at 159.