United States v. Attilio Joe Spagnuolo

515 F.2d 818, 1975 U.S. App. LEXIS 15052

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 1975
• Docket: 74-1272
• Status: Published

Opinions

OPINION

Before ELY and WALLACE, Circuit Judges, and LYDICK,* District Judge.

WALLACE, Circuit Judge:

Spagnuolo and 12 others were charged, in one or both counts of a two-count indictment, with conducting an illegal gambling enterprise in violation of 18 U.S.C. § 1955. Each count was based on evidence derived from different wiretaps. The government appeals from an order suppressing evidence derived from the questioned wiretaps. We reverse.

Both wiretap authorizations directly involved in this case were by court order pursuant to 18 U.S.C. § 2516. Prior to trial, a motion was made to suppress all evidence derived from these wiretaps, in which it was asserted that: (1) the application for the wiretap supporting count one was approved pursuant to defective Justice Department procedures; and (2) probable cause for the wiretap supporting count two was derived from previous illegal wiretaps, among them the wiretap involved in count one. The district court indicated that it would grant the motion to suppress evidence derived from the wiretap involved in count one and ordered a hearing before a magistrate on the legality of the wiretap involved in count two.

At the magistrate’s hearing the government called four F.B.I. agents and a local deputy sheriff in an effort to establish the untainted derivation of probable cause for the questioned wiretap. The movants requested, for purposes of impeachment, copies of investigative reports, memoranda and statements of the F.B.I. agents relevant to their testimony. The government opposed the motion to produce, claiming that the Jencks Act, 18 U.S.C. § 3500, permitted it to withhold such documents until its witnesses testified at trial. In accord with the magistrate’s recommendation, the district court ordered production, relying on its discretion to determine the scope of cross-examination.

When the government refused to comply with the production order, the district court ordered the magistrate to strike the testimony of three of the F.B.I. agents. The magistrate then found, and the district court agreed, that the government had failed to sustain its burden of proving lack of taint. The order suppressing evidence from both wiretaps followed, resulting in this appeal.

The district court erred in suppressing the evidence derived from the count one wiretap. The Justice Department application in support of this wiretap was defective but not fatally so. The application identified former Assistant Attorney General Wilson as the official who had authorized the application. Although Mr. Wilson had been specifically designated to authorize wiretaps pursuant to 18 U.S.C. § 2516, he did not authorize the application for the count one wiretap. His name was signed by another who had not been specifically authorized. However, former Attorney General Mitchell did authorize the wiretap and so indicated by initialing a memorandum to that effect. In a case involving precisely this defect, we held such an authorization invalid. United States v. Chavez, 478 F.2d 512 (9th Cir. 1973). But while the present case was pending on appeal, the Supreme Court reversed Chavez and held that the defect did not render the affected wiretap illegal. United States v. Chavez, 416 U.S. 562, 579-80, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). The same result must obtain here. The evidence derived from the count one wiretap authorization should not have been suppressed.

The district court’s ruling on the count two wiretap must also be reversed. That wiretap was alleged to be illegal in part because probable cause for the wiretap was founded upon evidence derived from the count one wiretap. Since the count one wiretap is legal under Chavez, the district court must reconsider the alleged taint of the count two wiretap.

The order suppressing evidence derived from the count two wiretap must also be reversed because the district court erred in ordering production of statements of government witnesses who testified at the suppression hearing. This precise question was before us recently. We held that the Jencks Act prohibits court-ordered production of statements of government witnesses at a pre-trial suppression hearing. United States v. Curran, 498 F.2d 30, 36 (9th Cir. 1974); see Sandejas v. United States, 428 F.2d 1040, 1045-46 (9th Cir.), cert. denied, 400 U.S. 879, 91 S.Ct. 122, 27 L.Ed.2d 116 (1970). This holding is in accord with the decisions of other circuits. United States v. Sebastian, 497 F.2d 1267, 1269-70 (2d Cir. 1974); United States v. Montos, 421 F.2d 215, 220—21 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970); see Robbins v. United States, 476 F.2d 26, 31-32 (10th Cir. 1973).

It is argued, however, that Cur-ran is distinguishable because 18 U.S.C. § 2518(10)(a) requires that hearings on the suppression of wiretap evidence be held before trial. It is argued that since section 2518(10)(a) prevents postponement of the suppression hearing until trial, the suppression hearing must be deemed to be part of the trial. We do not find this argument persuasive because the premise upon which it is based is incorrect. Section 2518(10)(a) does not require that the suppression hearing be held before trial but only that the motion to suppress be made before trial. It does not deprive the district court of discretion to postpone the hearing until the trial on the merits. Fed.R.Crim.P. 12(b)(4).¹

We likewise reject the argument that the district court’s order to strike testimony of government witnesses was within its discretion to control the scope of cross-examination. Exclusion of testimony is precisely the remedy for government noncompliance provided by the Jencks Act. 18 U.S.C. § 3500(d). The purpose of the Jencks Act is to restrict judicial power to order discovery against the government in criminal cases. Palermo v. United States, 360 U.S. 343, 346—48, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). This purpose would be frustrated if district courts could compel disclosure, contrary to the Jencks Act, in the exercise of their discretion over cross-examination. Although district courts have wide latitude in ordering discovery in criminal cases, see United States v. Richter, 488 F.2d 170 (9th Cir. 1973), we cannot tamper with statutory restrictions upon their power. While we may encourage the government to disclose Jencks Act statements prior to the time when it is statutorily required to do so, United States v. Sebastian, 497 F.2d 1267, 1270 (2d Cir. 1974) (dictum), we cannot compel such a course. The district court’s order to produce and its subsequent order to strike exceeded its authority.

Reversed and remanded.

1 . Our Brother Ely forcefully argues that postponement of the suppression hearing until the trial on the merits is not fully consistent with the right to appeal granted the government by 18 U.S.C. § 2518(10)(b). See post at p. 821, n.1. As he notes, substantial questions of double jeopardy would be raised if the government chooses to appeal from a suppression hearing held during trial.

However, we interpret 18 U.S.C. § 2518(10)(a) to permit postponement of suppression hearings until trial for two reasons. First, section 2518(10)(a) already contemplates the risk of appeals barred by double jeopardy because it allows suppression motions during trial when “there was no opportunity to make such motion or the person was not aware of the grounds of the motion” before trial. Second, for the same reasons advanced by our Brother Ely, we are reluctant to deprive the defendant of any possibility of discovery under the Jencks Act. Because we are bound by United States v. Curran, 498 F.2d 30, 36 (9th Cir. 1974), a holding that section 2518(10)(a) forbids postponement of the suppression hearing would make it impossible for a defendant to view Jencks Act statements during the hearing.

Our interpretation of section 2518(10)(a) is not inconsistent with United States v. Moon, 491 F.2d 1047, 1048-50 (5th Cir. 1974), and United States v. Sisca, 361 F.Supp. 735, 740-41 (E.D.N.Y.1973) (alternate holding). Both cases concerned motions not timely made under section 2518(10)(a). As the Second Circuit has recognized, postponement of the hearing on a timely motion presents different questions. United States v. Bynum, 475 F.2d 832, 835 (2d Cir. 1973), decision on subsequent appeal vacated on grounds not affecting this decision, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974).

We do not decide whether the testimony of government witnesses at a suppression hearing during trial is testimony “on direct examination in the trial of the case” within the meaning of the Jencks Act, 18 U.S.C. § 3500(a), (b). The question is not before us.