Opinion
Crim. No. 14927.
April 8, 1972.
Raymond E. Makowski, Philadelphia, Pa., for the United States.
Anthony Miele, Williamsport, Pa., for defendants Lloyd Bosch and William R. Becker.
Thomas J. Hanlon, Scranton, Pa., for defendant Frank Casale.
Michael Casale, Williamsport, Pa., for defendant Joseph Casale.
OPINION
The question before the Court is whether wiretap evidence of telephone conversations of the Defendants should be suppressed.
The statute provides, in brief, that before a telephone may be tapped, the Attorney General or an Assistant Attorney General specially designated by him shall authorize an application to a federal judge for authority to make the wiretap, and that the application to the Court and the ensuing court order both shall identify the person who authorized the application to the Court.
18 U.S.C. § 2518(1)(a) and (4)(d).
The application to this Court recited that the then Attorney General, John N. Mitchell, had specially designated the Assistant Attorney General for the Criminal Division of the United States Department of Justice, Will Wilson, to authorize the application, that Will Wilson had authorized the application, and that attached to the application was a letter from Will Wilson containing the authority. The order of this Court issued pursuant to the application also identified Will Wilson as the officer authorizing the application.
All of the documents appeared impeccable. However, Assistant Attorney General Will Wilson never saw the file, never authorized the application, and never signed the letter. His purported signature was affixed to the letter submitted to this Court by an officer below the rank of Assistant Attorney General. The application and the Court order are both defective in identifying Will Wilson as the officer authorizing the application.
The government now claims that the Attorney General himself authorized the application. It contends that his memo to Will Wilson does not specially designate Will Wilson to authorize the application to the Court but itself authorizes the application. The memo is set out in full in the margin. The plain meaning of the words in the memo is that Will Wilson was specially designated in this case to exercise the power and discretion conferred by the statute upon the Attorney General, or upon an Assistant Attorney General specially designated by him, to authorize the application for an order of court. The memo, in my view, is not an authorization to anyone to apply to this Court for an order.
"This is with regard to your recommendation that authorization be given to Raymond E. Makowski of the Criminal Division to make application for an Order of the Court under Title 18, United States Code, Section 2518, permitting the interception of wire communications for a fifteen (15) day period to and from telephone numbers 717-322-0248, 717-322-0805, and 717-322-4443, located at 2315 W. Southern Avenue, South Williamsport, Pennsylvania and telephone number 717-322-9163, located at Frankie's Tavern, 243 Market Street, Williamsport, Pennsylvania, in connection with the investigation in to possible violations of Title 18, United States Code, Sections 1955, 2, and 371, by Thomas Anthony Ceraso, Frank Casale, James Hurley, Lloyd Bosch, John E. Troutman, and others as yet unknown.
Pursuant to the power conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise that power for the purpose of authorizing Raymond E. Makowski to make the above-described application."
The government has submitted affidavits of former Attorney General Mitchell and of a subordinate which set forth departmental procedures for securing wiretap orders in this and similar cases. The affidavits unfortunately do not supply the missing link.
The procedure adopted and followed here fails for three reasons:
(1) Neither the Attorney General nor an Assistant Attorney General specially designated by him authorized the application to this Court;
(2) The application did not identify correctly the officer authorizing the application to this Court; and
(3) The Court order did not identify correctly the officer authorizing the application to this Court.
The statute provides that if wire communication is unlawfully intercepted, it may not be used in any Court proceeding. The evidence here was not obtained in accordance with the procedure mandated by the statute. It must therefore be suppressed.
I am mindful that all other U.S. District Judges who have faced this precise question, and to whose opinions my attention has been called by the government, have reached an opposite conclusion. I have given their views careful consideration and reluctantly decide otherwise.
United States v. LaGorga, 336 F. Supp. 190 (W.D. Pa. 1971); United States v. Aquino, 336 F. Supp. 737 (E.D. Mich. 1972); United States v. Doolittle, 341 F. Supp. 164 (M.D. Ga. 1972); United States v. Gerodemos, Crim. # 71-HCR67(2) N.D. Ind., Feb. 14, 1972); United States v. Iannelli, 339 F. Supp. 171 (W.D. Pa. 1972); United States v. Cantor, F. Supp., Crim. # 70-454 (E.D. Pa., March 20, 1972); United States v. D'Amato, 340 F. Supp. 1020 (E.D. Pa. 1972).
The failure of Mr. Wilson to affix his signature to a small number of letters of authorization has regrettably resulted in frustration and the loss of a staggering number of man hours by law enforcement officers.