In Re United States of America

10 F.3d 931, 1993 WL 486057

• Court: Court of Appeals for the Second Circuit
• Decided: November 23, 1993
• Docket: 520, Docket 93-3074
• Status: Published

Opinions

FEINBERG, Circuit Judge:

The United States petitions under the All Writs Act, 28 U.S.C. § 1651, and Rule 21 of the Federal Rules of Appellate Procedure for a writ of mandamus to the United States District Court for the Eastern District of New York, Edward R. Korman, J. The petition requests a determination of the authority of a district court to delegate to a federal magistrate judge the power to review applications by law enforcement officials for orders authorizing electronic eavesdropping pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521 (Title III). The petition requests, in the alternative, an order directing respondent Judge Korman to review such applications personally. For the reasons set forth below, we grant mandamus and order respondent Judge Korman not to delegate review of Title III applications to federal magistrate judges and to review personally an application now pending.

I. Background

In February 1992, respondent Judge Kor-man was serving in the Miscellaneous Part of the district court, where he was responsible for the review of applications for Title III orders. By an opinion and order dated February 14, 1992, respondent announced his intention to refer all such applications to United States magistrate judges. See In re United States Attorney, 784 F.Supp. 1019, 1028 (E.D.N.Y.1992). At the request of the United States, however, Judge Korman stayed implementation of his order until October 10, 1992¹ and signed the then pending Title III application of the United States Attorney for the Eastern District of New York. The United States then petitioned this court for mandamus review of Judge Korman’s order. This court denied the petition in an order dated March 23,1993. Upon the United States’ motion for clarification, the order was modified on June 14, 1993 to state that the petition was denied because no application had been referred to a magistrate.

On June 30, 1993, Judge Korman referred another application by the United States Attorney to a magistrate judge. The United States now seeks mandamus review of this order. This court accepted briefs from the parties and heard oral argument.²

II. Availability of Mandamus

This court’s order of March 23, 1993, as modified June 14, 1993, denied petitioner’s earlier mandamus petition because there was no wiretap application then pending before a magistrate judge. Because such an order is now pending, the issue has become ripe for review.

Mandamus is an extraordinary remedy that this court does not grant lightly:

the petitioner must show (1) the presence of a novel and significant question of law; [2] the inadequacy of other available remedies; and (3) the presence of a legal issue whose resolution will aid in the administration of justice.

In re United States, 903 F.2d 88, 89 (2d Cir.1990) (citing In re Von Bulow, 828 F.2d 94, 97-100 (2d Cir.1987)). We find that the petition by the United States meets these stringent criteria.

First, the case presents a novel and significant issue. Respondent appears to be the only judge in this circuit, if not in the nation, to delegate the review of Title III orders to a federal magistrate judge. As for significance, this court has recognized that “the scope of a Magistrate’s authority is a significant issue in federal criminal litigation.” In re United States, 903 F.2d at 89. Moreover, the disposition of applications for wiretapping orders implicates serious issues of privacy under the Fourth Amendment.

Second, petitioner has no alternative remedies capable of effectively protecting its substantial interests. Electronic surveillance involves major criminal investigations and requires a significant expenditure of government resources. Petitioner thus has a strong interest in ensuring the admissibility of evidence it gathers by electronic surveillance. Suppression on the ground that surveillance was authorized by an invalid Title III order would result in a significant waste of government resources. Furthermore, the government as parens patriae has an interest in avoiding illegal invasions of its citizens’ privacy.

Moreover, because of the unusual procedural posture of this proceeding, petitioner has no other adequate remedy. If petitioner is unable to obtain review of the basic legal issue now, presumably either the pending Title III application or another one referred by respondent to a magistrate in the future will be approved by a magistrate and petitioner will proceed with a criminal investigation. If an indictment results, the defendant, of course, would have the right to move to suppress any evidence obtained through the wiretap. Petitioner would then be placed in the impossible situation of either agreeing with defendant that the wiretap was not properly authorized or of taking a legal position that it believes is incorrect. Cf. In re United States, 903 F.2d 88.

Finally, resolution of this issue will aid in the administration of justice. Mandamus is appropriate “when the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice.” In re Von Bulow, 828 F.2d at 99 (quoting Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C.Cir.1975)). In this case, mandamus will eliminate uncertainty as to the delegation of Title III review, thus avoiding future challenges to wiretapping orders approved by magistrate judges, which may require retrial or the suppression of evidence.

III. The Merits

We turn now to the merits of the case. Whether district judges may delegate the review of Title III orders to magistrate judges depends ultimately upon the congressional intent expressed in Title III and in the Federal Magistrates³ Act, Pub.L. No. 90-578, 82 Stat. 1107 (codified as amended at 28 U.S.C. §§ 631-639). In analyzing this issue, however, another statute is highly relevant, as will be seen below.⁴

A. Relevant statutes ■

The 90th Congress enacted Title III in June 1968. The statute requires law enforcement officers seeking permission to intercept wire, oral or electronic communications to apply in writing to a “judge of competent jurisdiction.” 18 U.S.C. § 2518(1). The statutory definition of that term includes only “a judge of a United States district court or a United States court of appeals” and “a judge of any court of general criminal jurisdiction of a State,” who is authorized by state law to enter wiretapping orders. 18 U.S.C. § 2510(9). Title III contains a number of provisions designed to tightly control the use of this prosecutorial tool and to safeguard the privacy interests of those subjected to a wiretap. See generally United States v. Giordano, 416 U.S. 505, 514-23, 94 S.Ct. 1820, 1826-30, 40 L.Ed.2d 341 (1974). For example, an application for a wiretap order must be authorized by the Attorney General or her designees, see 18 U.S.C. § 2516(1), and must be made in writing, under oath, with a statement of the applicant’s authority. See 18 U.S.C. § 2518(l)(a). It must also include the identity of the law enforcement officer making the application and provide a complete statement of the facts relied upon. See 18 U.S.C. §§ 2518(l)(a)-(e). Furthermore, the right to intercept is confined to seeking evidence Of only certain specified serious offenses. See 18 U.S.C. § 2516(l)(a)-(o). In addition, there are stringent restrictions on the use and disclosure of the evidence obtained. The statute specifies safeguards relating to recording, minimizing and sealing the interceptions, as well as notice requirements to intercepted parties. 18 U.S.C. § 2518(8)(a), (b), (d). Violations of 18 U.S.C. §§ 2510 et seq. are punishable by imprisonment of up to five years and a fine of $10,000. 18 U.S.C. §§ 2511(4)(a), 2512(1).

The Federal Magistrates Act was enacted in October 1968 during the same session in which Congress enacted Title III. The statute replaced the office of United States commissioner with that of federal magistrate and gave the latter all the powers theretofore exercised by the former. See Pub.L. No. 90-578, § 636(a)(1) (codified at 28 U.S.C. § 636(a)(1)). In addition, the statute specifically listed further powers of the newly created magistrates. See id. at §§ 636(a)(2) and (3) (codified as amended at 28 U.S.C. §§ 636(a)(2) and (3)). Commissioners had not been authorized to issue Title III orders, and the list enumerating powers of magistrates did not include any reference to the Title III wiretap approval procedure Congress had just created a few months before. The statute did, however, authorize a district court to assign to magistrates “such additional duties as are not inconsistent with the Constitution and laws of the United States,” id. at § 636(b), including but not restricted to “assistance to a district judge in the conduct of pretrial ... proceedings in ... criminal actions.” Id. at § 636(b)(2).

In 1976, the Magistrates Act was amended to expand the powers of magistrates. Section 636(b) was changed to read, in relevant part, as follows:

(b)(1) Notwithstanding any provision of law to the contrary—

(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.

(3) A magistrate may be assigned such additional duties as are not inconsistent ivith the Constitution and laws of the United States, (emphasis supplied)

Pub.L. No. 94-577, 90 Stat. 2729 (codified as amended at 28 U.S.C. § 636(b)).

Finally, in 1986, Congress passed the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508,100 Stat. 1848 (codified as amended at 18 U.S.C. §§ 3121-3127) (the Privacy Act). This Act amended Title III by requiring law enforcement officers wishing to employ “pen register” or “trap and trace” monitoring devices⁵ to seek permission from a “court of competent jurisdiction.” See 18 U.S.C. § 3122(a). Unlike the definition of “judge of competent jurisdiction” in the wiretapping provisions of Title III, the definition of “court of competent jurisdiction” in the Privacy Act specifically includes federal magistrates. See 18 U.S.C. § 3127(2)(A).

In contrast to the provisions of Title III regarding wiretaps, a pen register or trap and trace application does not require authorization from the Attorney General or her designee. The application need only identify the applicant and the investigating law enforcement agency and certify that “the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.” 18 U.S.C. § 3122(b)(2). The provision was not intended to require independent judicial review of relevance; rather, the reviewing court need only verify the completeness of the certification. See S.Rep. No. 541, 99th Cong., 2d Sess. 47 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3601. Moreover, the maximum prison term for violation of the pen register or trap and trace provisions is only one year, 18 U.S.C. § 3121(c), compared to the five-year prison term authorized for violation of the wiretap provisions of Title III. 18 U.S.C. § 2511(4)(a).

B. Discussion

Petitioner United States argues that magistrates have not been authorized to approve wiretapping orders, either by Title III or by the Magistrates Act, as first enacted in 1968, or by the 1976 amendment of § 636(b). Petitioner is aware, of course, that as far back as 1968, district courts could assign to a magistrate “such additional duties as are not inconsistent with the Constitution and laws of the United States,” including assisting the judge in pretrial proceedings in criminal cases, and that since 1976 such assignment has been permissible “in any pretrial matter” (with specified exceptions not applicable here), “notwithstanding any provision of law to the contrary.” Petitioner argues, however, that this general language does not allow the delegation to magistrates at issue here. Petitioner emphasizes that Title III, as initially passed in 1968, specifically gave the power to approve wiretap applications only to federal district judges, federal circuit judges and state judges empowered by state statute to issue eavesdropping orders and that the 1986 Privacy Act amended the definition section of Title III, 18 U.S.C. § 2510, in many respects but not with respect to the issue raised here.

These are strong arguments. The Privacy Act explicitly authorized magistrates to approve pen register and trap and trace methods of surveillance, but failed to amend Title III specifically to authorize magistrates to approve wiretapping orders. If Congress in 1986 had believed magistrates to be “judge[s] of competent jurisdiction,” as the term is used in Title III, 18 U.S.C. § 2510(9), who are authorized to issue wiretapping orders, then the Privacy Act could have empowered magistrates to issue pen register orders with a simple reference back to § 2510(9). Instead, however, the 1986 Privacy Act specifies persons empowered to authorize pen register orders by reference to a separate “court of competent jurisdiction” section, which, unlike § 2510(9), specifically includes magistrates. See 18 U.S.C. § 3127(2)(A).

In response, respondent argues primarily that the 1976 amendment to the Magistrates Act authorized a district judge to delegate “any pretrial matter”⁶ (with specified exceptions not applicable here) to a magistrate, “notwithstanding any provision to the contrary.” Respondent points to the House Report on the 1976 amendment, which stated that the language just quoted “is intended to overcome any problem which may be caused by the fact that scattered throughout the code are statutes which refer to ‘the judge’ or ‘the court’ ” and that therefore “the permissible assignment of additional duties to a magistrate shall be governed by the revised section 636(b), ‘notwithstanding any provision of law’ referring to ‘judge’ or ‘court’.” H.R.Rep. No. 1609, 94th Cong., 2d sess. 9 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6169. With regard to the 1986 Privacy Act, respondent claims that it specifically authorized magistrates to approve pen registers and not wiretapping because the 1986 Act, unlike the original Title III, post-dated both the Magistrates Act and the amendment of that Act in 1976. The Privacy Act’s amendments in 1986 of the definitions in Title III did not authorize magistrates to issue wiretapping orders, respondent argues, because the 1976 Magistrates Act had already done so.

These are substantial arguments, particularly the former which relies on the 1976 amendment to the Magistrates Act. Yet, we are left with the strong conviction that Title III is sui generis and that any Congressional expansion of the list of those officers authorized to approve wiretaps would be specific rather than general and indirect. It must be remembered that Congress passed Title III in 1968 only after “a long battle between those who would have altogether prohibited wiretaps and the material obtained thereby and those who wanted to allow the government to use wiretap material in criminal prosecutions.” United States v. Gerena, 869 F.2d 82, 84 (2d Cir.1989) (citing National Broadcasting Co. v. United States Dept. of Justice, 735 F.2d 51, 53 (2d Cir.1984)). Title III was not enacted simply to facilitate electronic surveillance by law enforcement agencies. To the contrary, this court has noted that because “Congress recognized that wiretapping could be highly intrusive of privacy,” the statute placed strict limits on the use of wiretapping. Gerena, 869 F.2d at 84; see also National Broadcasting Co., 735 F.2d at 53 (citing S.Rep. No. 1097, 90th Cong., 2d Sess. 67, 161-65, reprinted in 1968 U.S.C.C.A.N. 2112, 2154-56,.2222-27). Title III was intended to “properly protect the privacy of oral and wire communications, while providing a uniform basis for authorizing their interception in appropriate cases.” United States v. Bianco, 998 F.2d 1112, 1120 (2d Cir.1993).

In view of this background, the interaction between Title III and the 1986 Privacy Act supports our view that magistrates have not been authorized to approve wiretap applications under Title III. It is significant that the Privacy Act changed the definition section of Title III in many respects, but did not alter § 2510(9), which grants the power to approve wiretaps only to federal Article III judges and state judges having general criminal jurisdiction and state statutory authorization. It is also significant that the 1986 Act specifically authorized magistrates only to approve.pen register and trap and trace monitoring, invasions of privacy far less intrusive than wiretapping. There is a sharp contrast between the stringent controls over wiretap orders (including the severity of punishment enforcing them) and the much less onerous conditions for obtaining pen register and trap and trace authorization. We believe that Congress in 1986 saw pen register and trap and trace monitoring, which magistrates may authorize, to be qualitatively different from wiretapping, which only an Article III federal judge or a state court judge of general criminal jurisdiction may authorize.

Respondent relies heavily on this court’s decision in United States v. Diaz, 922 F.2d 998 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2035, 114 L.Ed.2d 119 (1991), in support of the view that the order under attack here is valid. In that case, we interpreted the “notwithstanding” language in the 1976 amendment of the Magistrates Act as implicitly authorizing magistrates to empanel grand juries, even though the Jury Selection and Service Act, 28 U.S.C. § 1865(a), gives that authority only to district judges. Diaz, 922 F.2d at 1002. Diaz, however, did not involve the important privacy interests affected by Title III.

The purpose and legislative history of Title III suggest caution in allowing delegation of authority conferred by that statute. The Supreme Court relied on such a view of Title III in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), a case strikingly similar to the case at hand. Giordano involved 18 U.S.C. § 2516(1), which then provided that “the Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application” for a wiretap order. The Court held that § 2516 did not allow the Attorney General to delegate the power to authorize applications to the Attorney General’s Executive Assistant, even though the Attorney General was authorized by a different statute to delegate any of her functions to “ ‘any other officer, employee, or agency of the Department of Justice.’ ” Giordano, 416 U.S. at 513, 94 S.Ct. at 1826 (quoting 28 U.S.C. § 510).

Just as Title III empowers “a judge of competent jurisdiction” to review applications, 18 U.S.C. § 2518(1), it empowers the Attorney General to authorize applications. See 18 U.S.C. § 2516(1). And, just as 28 U.S.C. § 636(b), the 1976 amendment of the Magistrates Act, allows district judges to delegate “any pretrial matter” and “additional duties,” 28 U.S.C. § 510 allows the Attorney General to delegate any of her functions. The Giordano Court held, nonetheless, that even though Title III included no “precise language forbidding delegation ...[,] § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate.” 416 U.S. at 514, 94 S.Ct. at 1826 (emphasis supplied).

The Giordano Court based its holding on the purpose and the legislative history of Title III, fairly read. The same approach also supports the view that Congress wanted to limit the power to review applications to specified judicial officers.⁷ The purpose of Title III was to outlaw wiretapping except in certain situations, as indicated by the strict restrictions on the gathering and use of wiretap evidence. See id. at 514-16, 94 S.Ct. at 1826-27. Those statutory restrictions should be observed in the absence of specific Congressional direction to the contrary.

The present case also stands in contrast to our recent decision in Austin v. Healey, 5 F.3d 598 (2d Cir.1993), in which we approved a court rule automatically delegating extradition proceedings to magistrate judges. That case involved neither privacy issues nor judicial inference as to Congressional intent, for Congress has specifically stated that magistrates may hear extradition proceedings if “ ‘authorized so to do by a court of the United States.’ ” Id., at 601 (quoting 18 U.S.C. § 3184). Furthermore, before the Magistrates Act, Congress had authorized extradition proceedings, unlike wiretap applications, to be heard by United States commissioners, id., at 603, so that the Magistrates Act in that respect merely codified prior practice.

It may also be argued that since magistrates have the authority to issue search warrants, which obviously intrude upon privacy interests, Congress must have intended in the 1976 amendments to the Magistrates Act to allow magistrates to approve wiretap applications. But here, too, United States commissioners were empowered to issue search warrants even before Title III was enacted, see supra n. 6, so that no such inference is justifiable. Indeed, the Senate Report on the legislation that became Title III specifically pointed out that the prior practice of commissioners with regard to such warrants had been “too permissive for the interception of wire or oral communications,” and that the power to authorize electronic surveillance should be more limited. S.Rep. No. 1097, reprinted in 1968 U.S.C.C.A.N. 2112, 2179.

Our dissenting brother asserts that a wiretap is not “more intrusive on personal privacy” than a judicially-authorized search. We disagree. A wiretap may capture the intimate details of a person’s life over an extended period of time without that person’s knowledge. In contrast, a search pursuant to a warrant, which has long been a recognized tool of the prosecutor, occurs just once and, by its nature, puts the person searched on notice of the violation of privacy. A wiretap is like a continuous film of events in your home, secretly recorded over a period of weeks or months. A search is like a surprise snapshot of your home taken in your presence. The former is obviously a far greater invasion of privacy than the latter. The lengthy battle in the 1960’s leading to enactment of Title III is proof enough that Congress considered the comparatively new technique .of electronic eavesdropping to be far more intrusive than the familiar search pursuant to a warrant.

Finally, we do not doubt that the 1976 amendment of the Magistrates Act was intended, as respondent urges, to overcome a series of court decisions that had construed that Act narrowly to limit the “additional duties” that could be delegated to magistrates. H.R.Rep. No. 1609, reprinted in 1976 U.S.C.C.A.N. 6162, 6164-67, 6173. But one can search the House Report in vain for disapproval of a decision refusing to allow a magistrate to hear wiretap applications. Indeed, apparently no one thought that the power existed, since even respondent concedes that no district judge has ever delegated the review of a Title III application to a magistrate before.

In enacting the 1968 Magistrates Act, the 1976 amendment to that Act and the 1986 Privacy Act amendments to Title III, Congress had multiple opportunities to add magistrate judges specifically to the category in Title III of “judge of competent jurisdiction,” but in each instance did not do so. We are aware of the growing burdens placed upon the district courts and appreciate the valuable assistance furnished to the judicial system by magistrate judges. But in enacting Title III, Congress showed great concern for protecting individual privacy against the vast potential for intrusion posed by wiretapping. In sum, we are unwilling, in the absence of explicit statutory direction, to expansively interpret Title Ill’s definition of a “judge of competent jurisdiction,” 18 U.S.C. § 2510(9), to include magistrate judges.

Mandamus granted.

1 . This was the next date on which respondent expected to serve in the Miscellaneous Part.

2 . Because the issues were fully briefed at the time of the prior application for mandamus, the parties resubmitted and relied upon those briefs.

3 . In 1990, the name of the office of United States magistrate was changed to "United States magistrate judge." This opinion uses the terms interchangeably.

4 . The parties have not raised, nor do we address, any constitutional issues involved in the dclegation of Article III judges' duties to magistrate judges. We note that the Supreme Court has avoided constitutional issues in this area by construing the Federal Magistrates Act narrowly "in light of its structure and purpose." Gomez v. United States, 490 U.S. 858, 864, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989) (citing cases).

5 . These devices are used to identify numbers dialed to or from a telephone, but do not allow eavesdropping on conversations.

6 . While we assume arguendo that the review of Title III wiretapping orders is a "pretrial matter” within the meaning of 28 U.S.C. § 636(b)(1)(A), it is at least arguable that this is not so because the review may occur long before any proceeding in court. This, of course, may also be true of applications for a search warrant, which magistrates are undoubtedly authorized to issue. See Fed.R.Crim.P. 41(a). But that power does not stem from the 1976 amendment of the Magistrates Act, upon which respondent so heavily relies. Rather, search warrant authority resided with United States commissioners, the predecessors of federal magistrates, since before the 1968 Magistrates Act. See S.Rep. No. 1097, 90th Cong., 2d sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2179 (citing former 18 U.S.C. § 3041 (1964)).

7 . Respondent has attempted to distinguish Gior-dano on the ground that the Attorney General's power to delegate authority under 28 U.S.C. § 510 predated Title III, while the Magistrates Act post-dated Title III. See In re U.S. Attorney, 784 F.Supp. at 1022. Thus, it could be argued that § 510 could not empower the Attorney General to delegate her Title III authority, because when § 510 was enacted, she had no Title III authority. Giordano, however, did not rely upon, or even mention, the timing of § 510. Rather, it relied entirely on a close examination of Title III.