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United States of America, Plaintiff-appellee, v. Richard Michael King, Aka Richard Hansen,*defendants-appellants
United States Court of Appeals, Ninth Circuit. - 478 F.2d 494
Feb. 28, 1973
Paul G. Evans (argued), La Jolla, Cal., Michael S. Hegner (argued), San Diego, Cal., Douglas R. Reynolds (argued), of Holt, Rhoades & Hollywood, San Diego, Cal., Kevin J. McInerney (argued), of McInerney, Milchen & Frank, San Diego, Cal., Artie G. Henderson (argued), San Diego, Cal., Charles R. Khoury, Jr. (argued), San Diego, Cal., Mobley M. Milam, William Zumwalt, James Hagerstrom, of Public Defenders, Inc., Frank V. Gregorcich, San Diego, Cal., for defendants-appellants.
E. Mac Amos, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., John J. Robinson, Atty., Dept. of Justice (argued), Washington, D. C., for plaintiff-appellee.
Before DUNIWAY and HUFSTEDLER, Circuit Judges, and JAMESON,** District Judge
DUNIWAY, Circuit Judge:
King and ten others appeal from their convictions under 21 U.S.C. Secs. 176a, 841, 846, 952, 960, 963 of conspiring to illegally import and to distribute marijuana in the United States. Various of the defendants were also convicted under 18 U.S.C. Sec. 1403(a) for using communications facilities in furtherance of the conspiracy. The government's case was largely derived from a tap of King's telephone, purportedly conducted pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Act), 18 U.S.C. Secs. 2510-20.
We hold that defendants Light and Virginia Pope do not have standing to challenge the legality of the wire-tap, and affirm their conspiracy convictions. We reverse the convictions of the other defendants.
I. Validity of the wire-tap.
The principal issue in this case is the validity of the wire-tap of King's telephone. The defendants make a shotgun challenge to the legality of the tap, arguing that its fruits should be suppressed pursuant to 18 U.S.C. Sec. 2515. Having concluded that the wire-tap was improperly authorized, we deal only with that contention. We first set out the relevant provisions of the Act, and then compare them with what was done in these cases.
A. The requirements of the Act.
Section 2511 outlaws all wire-tapping, and all disclosures of tapped communications, except for those specifically authorized by the Act. Section 2512 outlaws wire-tapping devices, mailing or transporting them in interstate commerce, and advertising them, with certain specific exceptions. Both sections prescribe substantial criminal penalties. Section 2513 authorizes confiscation of unlawful devices.
Section 2515 provides, in pertinent part:
"Prohibition of use as evidence of intercepted wire or oral communications.
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . .
28 U.S.C. Sec. 506 provides:
"The President shall appoint, by and with the advice and consent of the Senate, nine Assistant Attorneys General, who shall assist the Attorney General in the performance of his duties."
In this case, there were four applications for wire-tap orders and four orders. The first initiated the tap; the other three extended the time during which the tap could be maintained. So far as it is material, the documentation in support of each was substantially identical. We therefore confine our statement of the facts to the first application and order
Attached to the Shapiro affidavit is an affidavit by Will Wilson which says:
"I have authorized Deputy Assistant Attorney General Henry E. Petersen and Deputy Assistant Attorney General Harold Shapiro to sign my name to letters of authorization for application to United States District Courts for orders under Title 18, United States Code, Section 2518, after such application had been approved by the Attorney General."
A majority of the courts has held that the authorization complies with section 2516(1) if the Attorney General actually approved the request, even though the Wilson letter was false. United States v. Cantor, 3 Cir., 1972, 470 F.2d 890; United States v. Fiorella, 2 Cir., 1972, 468 F.2d 688, 690-91; United States v. Ceraso, 3 Cir., 1972, 467 F.2d 647; United States v. Cox, 8 Cir., 1972, 462 F.2d 1293, 1297-1300; United States v. Becker, 2 Cir., 1972, 461 F.2d 230, 235; United States v. Pisacano, 2 Cir., 1972, 459 F.2d 259, 263; United States v. Askins, D.Md., 1972, 351 F.Supp. 408, [Cr.L.Rep. 2182]; United States v. Fox, S.D.Ill., 1972, 349 F.Supp. 1258, 1261-1262; United States v. Whitaker, E.D. Pa., 1972, 343 F.Supp. 358; United States v. Consiglio, D.Conn., 1972, 342 F.Supp. 556; United States v. Doolittle, M.D.Ga., 1972, 341 F.Supp. 163; United States v. D'Amato, E.D.Pa., 1972, 340 F.Supp. 1020, 1021; United States v. Iannelli, W.D.Pa., 1972, 339 F.Supp. 171, 174; United States v. Acquino, E.D. Mich., 1972, 338 F.Supp. 1080, 1081; United States v. Gerodemos, N.D.Ill., 1972; United States v. LaGorga, W.D. Pa., 1971, 336 F.Supp. 190, 195. Contra: United States v. Focarile, D.Md., 1972, 340 F.Supp. 1033, 1051-1060, aff'd sub. nom. United States v. Giordano, 4 Cir., 1972, 469 F.2d 522. We need not take a position on this issue to decide this case, and decline to do so
28 U.S.C. Sec. 503 provides:
"The President shall appoint, by and with the advice and consent of the Senate, an Attorney General of the United States. . . ."
There is no comparable provision for the appointment of an alter ego.
United States v. Giordano, supra; United States v. Robinson, 5 Cir., 1972, 468 F.2d 189, vacated and remanded in banc, 1973, 472 F.2d 973 [January 16, 1973]; United States v. Wierzbicki, E.D.Mich., 1972, 12 Cr.L.Rep. 2075; United States v. Fox, supra; United States v. Vasquez, C.D. Cal., 1972, 348 F.Supp. 532; United States v. Narducci, E.D.Pa., 1972, 341 F.Supp. 1107; United States v. LaGorga, W.D.Pa., 1972, 340 F.Supp. 1397; United States v. Baldassari, M.D.Pa., 1972, 338 F.Supp. 904; United States v. Acquino, supra; United States v. Cihal, W.D.Pa., 1972, 336 F.Supp. 261; United States v. Montello, D.D.C., 1972. Furthermore, the panels in Becker and Ficrella, supra, implied that they had misgivings about the result in Pisacano, supra, although bound by it as the law of the Second Circuit. See 468 F.2d at 691; 461 F.2d at 233-234
Light and Virginia Pope also urgs us to adopt the position of Justice Fortas, who dissented in Alderman, under which they might have standing to challenge the wiretap. This argument is addressed to the wrong court
In United States v. Becker, supra, 461 F.2d at 236, the court stated that an adherence to the law as set forth in Pisacano should "not be construed as an approval of the procedure followed by the Attorney General and his staff * * *"The same is true here. Even though I find no evidence of bad faith or reliance upon insufficient evidence in seeking the interception orders, I do agree that it is unfortunate that the Department of Justice did not comply more strictly with the statutory provisions. As stated in Mr. Mitchell's affidavit, the procedure has been discontinued and all applications since November 20, 1971 have been approved personally by the Attorney General