The opinion of the court was delivered by: POLLACK
The defendants herein were convicted by a jury of violations of the narcotics laws with the use on the trial of wiretap evidence. A motion to suppress the intercepted conversations was denied by the District Court and the issue was raised on appeal from the convictions. Before deciding the merits of the appeal, the Court of Appeals remanded the case for a hearing on whether minimization of the wiretap surveillance was properly observed. 475 F.2d 832 (2d Cir. 1973). The District Court found and reported that the minimization measures taken were appropriate under the circumstances, 360 F. Supp. 400, and the Court of Appeals affirmed these findings and affirmed the convictions in all respects. 485 F.2d 490 (2d Cir. 1973). The defendants then sought certiorari from the Supreme Court raising among other points the contention that the authorization for the wiretaps by the Attorney General was defective in that a judicial order granting further time for the wire surveillance had not received the personal approval of the Attorney General.
During pendency of the application for certiorari herein, the Supreme Court decided United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974), upholding the grant of a pretrial motion to suppress wiretap evidence where an original intercept order lacked the pre-application personal approval of the Attorney General and an order based thereon had extended the time limit of the intercept authority, and United States v. Chavez, 416 U.S. 562, 94 S. Ct. 1849, 40 L. Ed. 2d 380 (1974), in which pre-application personal approval was in fact given to the original order by the Attorney General but the papers erroneously had attributed the approval to a specially designated assistant and this was held not to invalidate the wire tap order.
Without reaching the merits of defendants' contentions herein (Mr. Justice Douglas dissenting and voting to reverse), the Supreme Court vacated the judgment in this case and remanded it to the Second Circuit Court of Appeals for further consideration in light of Giordano and Chavez. United States v. Bynum, 417 U.S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209 (1974). On motion of the government, the Court of Appeals in turn remanded the case to this Court on June 18, 1974 for a hearing and consideration of evidence in light of Giordano and Chavez.
A hearing was duly held at which the testimony of former Attorney General, John Mitchell, and his assistant, Sol Lindenbaum, was adduced, together with evidence tending to show that the four challenged conversations used on trial must be considered of immaterial effect on the convictions. At the close of the hearing on November 9, 1974, the government suggested that it might consider calling two additional witnesses to testify on the effect of the questioned interceptions, but the Court concluded that such testimony would be unnecessary at this time in view of the limited remand under which this Court does not reach the question of the effect of those interceptions in obtaining the convictions. The parties thereafter submitted briefs and due deliberation has been had.
The fact which at once sets this case apart from Giordano is that here the initial wiretap orders did have the pre-application personal approval of Attorney General John Mitchell. This satisfied all requirements of Title III, 18 U.S.C. § 2515 et seq. Moreover, since all the orders involved herein were based on probable cause, as defendants have conceded, the orders were therefore lawful under the Fourth Amendment.
the facts herein are that three wiretap orders (two initial and one extension) were made authorizing interception of communications on residential telephone facilities located in a private single family dwelling at 855 Linden Boulevard, Brooklyn, for which the subscriber was Fred
Garnett. The object of the surveillance was the narcotics activities of Elvin Bynum and his cohorts. Two telephone numbers were assigned to these phone facilities, viz., (212)342-6203 and (212)346-5992. Both of these were in the premises before the initial wiretap order was made on January 29, 1971 by Judge Travia. The second number had been added by the phone company without the knowledge of the government agents while they were preparing and submitting the application to the Attorney General and the Court for their respective approval and authorization.
The chronology is as follows:
On January 14, 1971, the agents of BNDD commenced preparation of an application for surveillance of Bynum's narcotics activities at 855 Linden Boulevard by interception of the telephone communications flowing in and out of the premises and by a bug to be planted in the premises. The application was presented to the Attorney General who personally approved it on January 26th. The application mentioned that the phone facilities bore number (212)342-6203. Unknown to the government the subscriber, Fred Garnett, ordered installation of a second phone facility on January 26th and it was installed and operative on January 28th. On January 29th Judge Travia issued the original wiretap order for interception during the 20 day period expiring on February 18, 1971 (H 603).
Learning of the second phone installation, the government prepared a further wiretap application which was presented to the Attorney General who personally approved it on February 11, 1971. The application mentioned that the phone facilities to the premises now included number (212)346-5992. On February 12th Judge Travia issued his second wiretap order (H 639) relating therein the number of the added telephone facility; this similarly authorized interception for a period not to exceed 20 days expiring on March 3, 1971.
On February 18, 1971, Assistant United States Attorney Updike submitted to the Department of Justice an application he proposed to lay before Judge Travia for his authorization of an extension of the time limit of the January 29th order. The Attorney General was absent from Washington on that date and since the proposed time enlargement was within the approved objective, his assistant Sol Lindenbaum authorized AUSA Updike to present the application to Judge Travia who thereupon issued his order of February 18th (H 681) enlarging the time limit of the January 29th order for an additional 14 days so that the expiration of the allowable intercept period under the orders of February 12th and 18th would occur on the same day, March 3, 1971.
The defendants contend that communications intercepted between February 18th and March 3rd over telephone line (212)342-6203 or the investigative fruits thereof were improperly admitted into evidence at trial because Attorney General Mitchell did not personally approve on February 18, 1971 the submission to Judge Travia on that date of the application to enlarge the time limit for interception fixed in the Court's order of January 29, 1971.
In United States v. Magaddino, 496 F.2d 455 (2d Cir. 1974) the Court of Appeals of this Circuit set out the rule for burden of proof on the question of the illegality of wiretaps where defendants seek to suppress the evidence obtained therefrom. Quoting Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), which in turn refers to Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939), the Court stated at 496 F.2d at 459-460 that "the 'burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed.'" Accord, United States v. Covello, 410 F.2d 536, 548 (2d Cir. 1969), cert. denied, 396 U.S. 879, 90 S. Ct. 150, 24 L. Ed. 2d 136 (1969), reh. denied, 397 U.S. 929, 90 S. Ct. 897, 25 L. Ed. 2d 110 (1970); cf. United States v. Morin, 378 F.2d 472, 475 (2d Cir. 1967).
The defendants have failed to prove that wiretapping was unlawfully ...