United States v. J. W. Robinson

472 F.2d 973, 1973 U.S. App. LEXIS 12155

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 16, 1973
• Docket: 71-1058
• Status: Published

Opinions

PER CURIAM:

Judge Clark, writing for a panel of this Court, succinctly stated the posture of the case on appeal as follows:

This appeal was intended to raise the constitutionality of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which permits wiretaps and other electronic surveillance methods as crime detection aids. But, with the development of facts unknown until the case was before this Court, it turns out to present only the question of who may initiate an application to engage in such secret electronic surveillance under the authorization proviso of that legislation, (footnote omitted)

United States v. J. W. Robinson, etc., 5 Cir. 1972, 468 F.2d 189.

The bifurcation of the constitutional issues from the questions raised by the apparent deviations from the statutory requirements came about by the appellants’ adventitious discovery that Sol Lindenbaum, the Executive Assistant to the Attorney General, signed the Attorney General’s initials to the authorization in question, designating Will Wilson, an Assistant Attorney General, to authorize the applications to a district judge. The Assistant Attorney General did not act personally, but instead Henry E. Peterson, a Deputy Assistant Attorney General, signed the Assistant Attorney General’s name.

Appellants moved for remand of the case to the district court for an eviden-tiary hearing. The Government replied in a memorandum in opposition supported by affidavits of Lindenbaum and Peterson. The motion to remand was denied.

Premising its opinion and decision on the two affidavits the panel held that, “[s] ince the entirety of the evidence used to convict these defendants is conceded to have eventuated from these improperly authorized wiretaps, it follows that such evidence ought to have been suppressed.” Id. at 194. In light of its holding, the constitutional issues raised on appeal were not reached. The judgments of conviction were reversed and the appeals were remanded to the district court with directions to dismiss the indictments.

On petition for rehearing en bane the Government moved to supplement the record by further exegetical affidavits from Lindenbaum and Peterson, or to remand the case to the district court for an evidentiary hearing to obtain a complete record.

Because the Government opposed a remand of the questions raised for the first time by the appellants on appeal, the panel concluded, and justifiably so, that the Government was content to rely, on the affidavits without more.

Ordinarily we would be unpersuaded to delve deeper into the questions raised by the appellants than that which was presented to the panel by the parties. But the validity vel non of the authorization procedure employed in this case is of such importance,¹ that we disfavor its resolution simply on the basis of two affidavits filed with respect to the issue, particularly since the issue had not been raised, litigated, or decided in the Court below.

We therefore remand this case to the district court for an expedited eviden-tiary hearing to determine whether the wiretap applications in this case were properly authorized under 18 U.S.C.A. § 2516(1).

The district court will make findings of fact and conclusions of law which, with the complete record, will be forthwith transmitted to this Court. All other issues raised by either party are reserved.

Remanded with directions.

1 . The unusual importance of the issue is underscored by the number of courts that have dealt with it since publication of the panel decision. See United States v. Giordano, 4 Cir. 1972, 469 F.2d 522 [Nos. 72-1399, 72-1407, Oct. 31, 1972] ; United States v. George, 6 Cir. 1972, 465 F.2d 772; United States v. Cox, 8 Cir. 1972, [11 Cr.L.Rep. 2261, June 5, 1972] ; United States v. Becker, 2 Cir. 1972, 461 F.2d 230; United States v. Pisacano, 2 Cir. 1972, 459 F.2d 259; United States v. Cox, 10 Cir. 1971,- 449 F.2d 679, cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136; United States v. Sklaroff, S.D.Fla., Nos. 71-612, 71-613, 71-614, 71-711 (pending) ; United States v. Casale, M.D.Pa.1972, 341 F.Supp. 374; United States v. Doolittle, M.D.Ga.1972, 341 F.Supp. 163; United States v. Focarile, D.Md.1972, 340 F.Supp. 1033; United States v. Aquino, E.D.Mich.1972, 338 F.Supp. 1080; United States v. Baldassari, M.D.Pa.1972, 338 F.Supp. 904; United States v. Cihal, W.D.Pa. 1972, 336 F.Supp. 261; United States v. King, S.D.Cal.1972, Nos. 11677, 11257; United States v. Mantello, D.D.C.1972, No. 335-71; United States v. Smith, N.D.Ill.1972, No. 852; United States v. Wierzbicki, E.D.Mich.1972, No. 45884; United States v. Bassoline, E.D.Mich., No. 46323; United States v. Lawson, E.D.Pa. 1972, 347 F.Supp. 144; United States v. Narducci, M.D.Pa.1972, 341 F.Supp. 1107; United States v. Gibson, E.D.Va. 1972, No. 7672A.