APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 72-193)
Aldisert, Adams and Hunter, Circuit Judges. Adams, Circuit Judge, concurring.
This court must decide whether wiretap authorizations signed by an acting assistant attorney general, not specifically qualified to approve electronic surveillance under 18 U.S.C. § 2516(1), must be suppressed as facially insufficient under 18 U.S.C. § 2518(10)(a)(ii). The government appeals suppression by the district court.*fn1 Because we believe that facial insufficiency in this case was an insubstantial violation of the Act, we reverse the district court's order and remand the case for consideration of other grounds for suppression not yet reached by the court.*fn2
The district court for the Western District of Pennsylvania approved wiretap applications on December 9, and December 23, 1971. The applications submitted by the Organized Crime and Racketeering Section of the Justice Department were accompanied by authorization orders for electronic surveillance signed by Henry Petersen. Petersen was then Acting Assistant Attorney General.*fn3 A series of later applications dated January 18, 25 and February 9, 1972 showed authorization by Petersen who had subsequently been confirmed as Assistant Attorney General by the Senate.
As a result of information derived from this surveillance, Anthony Acon and three other defendants were indicted for conspiracy to conduct illegal gamblings, 18 U.S.C. §§ 371 and 1955, and Acon and five other defendants were indicted for conspiracy to obstruct the enforcement of Pennsylvania criminal laws, 18 U.S.C. § 1511. Defendants moved to suppress the evidence derived from the wiretaps on various grounds, only one of which was addressed by the district court's narrowly drawn opinion.
At the suppression hearing, the government presented affidavits and inter-office memoranda from both Petersen and former Attorney General John Mitchell. A March 4, 1973 affidavit from Mitchell states that although the authorization order was signed by Petersen, Mitchell had in fact given the authorization. A series of memoranda dated prior to each wiretap application, initialed by Mitchell, and giving approval for the wiretap, was introduced at the suppression hearing in support of Mitchell's more recent affidavit.*fn4 Henry Petersen also submitted an affidavit which stated that, although he had reviewed the supporting papers, Mitchell had in fact given approval in each case. Petersen's signature was affixed only after Mitchell's approval of each application.*fn5
Although defendants challenged the allegedly institutional character of Mitchell's approval under 18 U.S.C. § 2518(10)(a)(i), the district court did not reach this issue.*fn6 The suppression order was based solely on grounds of facial insufficiency under § 2518(10)(a)(ii).*fn7
Congress set out detailed procedures for obtaining electronic surveillance approval in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. §§ 2510-2520. 18 U.S.C. § 2516(1)*fn8 provides that the Attorney General or a specially designated Assistant Attorney General must authorize every wiretap application submitted for approval to the district court. 18 U.S.C. § 2518, in turn, sets out the information which must be contained in the application. §§ 2518(1)(a) and 2518(4)(d), for example, specifically require that the identity of the authorizing officer be stated in the application. Suppression of evidence derived from electronic surveillance is allowed when the communcation has been unlawfully intercepted, § 2518(10)(a)(i), or when the order of authorization or approval is insufficient on its face, § 2518(10)(a)(ii).*fn9
Defendants assert that an acting assistant attorney general cannot be designated specially under § 2516(1) to authorize wiretaps. With this point, we agree. Defendants argue further that any authorization order signed by an improper person is facially insufficient and, therefore, subject to suppression under § 2518(10)(a)(ii). They assert that suppression for facial insufficiency is required even if authorization was actually given by a person properly qualified under § 2516(1).
In light of the technical nature of this facial insufficiency, we cannot agree that suppression is ...