Opinion
8:01CR273
July 10, 2002
MEMORANDUM AND ORDER
Before me are the objections of defendants Terrance Toney (hereafter, Toney) and Jose Monarrez-Cano (hereafter, Monarrez-Cano), Filing Nos. 125 and 128, to the magistrate's report and recommendation, Filing No. 123, in which the magistrate recommends that this court deny Toney's and Monarrez-Cano's motions to suppress physical evidence, Filing Nos. 77 and 84. Toney is charged with one count of conspiracy to distribute and possess with intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) and (b)(1). Monarrez-Cano is charged with one count of conspiracy to distribute and possess with intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) and (b)(1), and one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1). Toney and Monarrez-Cano seek to suppress evidence obtained as a result of wiretaps, authorized by a court order, on a cellular telephone. On motion of defendant Toney, the court heard oral argument on the motion on June 12, 2002.
Defendant Gary Trawicki filed a motion to suppress, Filing No. 80, and the magistrate judge denied that motion in her report and recommendation. No objection was filed by defendant Trawicki to the report and recommendation, and this court affirms the report and recommendation regarding Filing No. 80
Under 28 U.S.C. § 636(b)(1)(C), the court makes a de novo determination of those portions of the report or recommendations to which the parties object. The court has carefully reviewed the record, the magistrate's report and recommendation, the defendants' briefs, the exhibits, and the sealed wiretap application and order. The court concludes that the defendants' objections should be overruled and that the report and recommendation of the magistrate should be adopted, as modified by the findings in this order.
In her report and recommendation, the magistrate noted that the wiretap application and order had not been reviewed because it had not been presented to her. Wiretap applications and orders are sealed and maintained as records of this court and are therefore available to the court.
Defendants Toney and Monarrez-Cano assert that the wiretap was not properly authorized within the Justice Department. They first contended that the signature of the wiretap application is indecipherable and is not the signature of Deputy Assistant Attorney General Bruce C. Swartz. Toney further argued at the hearing that the intercepted conversations should be suppressed because of a discrepancy in a Justice Department Memorandum (Memo) seeking authorization to apply to the district court for the wiretap. The Memo is signed by Bruce C. Swartz, but purports to be "from" Michael Chertoff. Toney argues that this shows the document does not reflect the actual work product of Bruce Swartz and characterizes the government's conduct as "blank check executive governmental function." He also argues that this shows the government's "cavalier" attitude with respect to compliance with the wiretap statute.
The government has submitted the affidavit of Maureen Killion, the recipient of the Memo and Director of the Office of Enforcement Operations of the Criminal Division of the United States Department of Justice. In her affidavit, Killion states that an electronic surveillance request was submitted to Deputy Assistant Attorney General Bruce C. Swartz for his review and approval and that Mr. Swartz signed the approval memorandum. Ex. 3. The evidence further shows that Mr. Swartz is a Deputy Assistant Attorney General in the Criminal Division. Ex. 2.
An application for a wiretap requires authorization by one of the following individuals: "the Attorney General, Deputy Attorney General, Associate Attorney General, Associate Attorney General, or any Deputy Assistant Attorney General or Acting Deputy Assistant Attorney General in the Criminal Division specifically designated by the Attorney General. . . ." 18 U.S.C. § 2516 (1). These statutory provisions were intended to make clear who bore responsibility for approval of the submission of a particular wiretap application. United States v. Chavez, 516 U.S. 562 [ 416 U.S. 562, 570-71 (1974). An application is presumed to be proper, and the procedures leading to its submission to the court will be deemed to satisfy 18 U.S.C. § 2516 (1) absent a showing by the defendant to the contrary. United States v. O'Connell, 841 F.2d 1408, 1416 (8th Cir. 1988).
The showing made by Toney and Monarrez-Cano is not sufficient to overcome this presumption. The government presented evidence that Bruce Swartz, as an Deputy Assistant United States Attorney in the Criminal Division, possessed the statutory and delegated power to authorize the application. The court's review of the sealed wiretap application and the order authorizing the wiretap indeed reveals a discrepancy between the person listed in the heading of the approval memo and its signatory. It does not follow from that discrepancy that Bruce Swartz was unfamiliar with the work-product leading to the wiretap application or that he merely "rubber-stamped" the application.
Toney argues that "there must be a showing that Bruce Swartz did something mandated by his function, as a highly placed assistant attorney general, to construe, consider, review, look at, do something about, what was presented to unleash and start the application process in Nebraska." Transcript at 12. Whatever the appeal of that proposition, there is simply no support for it. The burden is on the challenger to present evidence that calls the propriety of the application into doubt. See O'Connell, 841 F.2d at 416 (noting that a named designee whose high office gives him the statutory power to authorize electronic surveillance orders is presumed to have properly exercised that power unless defendants offer evidence, beyond mere speculation, to rebut this presumption).
Toney has submitted counsel's affidavit and accompanying Internet research showing that Bruce Swartz has expertise in prosecuting international crime. Ex. A. This evidence does not negate the government's evidence showing that Bruce C. Swartz, an authorized official, reviewed the application. The court is unable to draw the conclusion from this evidence that there was any improper review, or lack of review, within the Justice Department.
"The fact that an application misidentifies the authorizing official does not render interceptions conducted under the order unlawful." Id.; see also United States v. Nanfro, 64 F.3d 98, 100 (2d Cir. 1995) (per curiam) (Attorney General is permitted to designate specially "any Deputy Assistant Attorney General of the Criminal Division" to authorize applications for wiretaps rather than designating authorizing officials by name); United States v. Torres, 908 F.2d 1417, 1421-22 (9th Cir. 1990) (Attorney General specially designating Deputy Assistant Attorney General by job title rather than by name is not a violation of the statute, even though more than one person held that job); United States v. Weber, 808 F.2d 1422, 1423 (11th Cir. 1987) (another officer may sign the application, provided he does so on behalf of a designated official).
The purpose of restricting the authorization power under the statute is "to assure that an accountable and identifiable person actually reviews wiretap requests." United States v. Anderson, 39 F.3d 331, 339 (D.C. Cir. 1994), modified in part on other grounds, 59 F.3d 1323 (D.C. Cir. 1995) (en banc) ("[a]ssuming that the relevant [Deputy Assistant Attorneys General] were authorized to approve applications, the fact that the memos they signed purported to be `from' [another Assistant Attorney General] is irrelevant to the purposes of the statute because those individuals who did sign the applications were identifiable"); United States v. Citro, 938 F.2d 1431, 1435-37 n. 5 (1st Cir. 1991) (finding authorization valid in circumstances almost identical to the situation presented in this case — wiretap application showing it was "from" one Assistant Attorney General, but signed by another). The court's review of the sealed wiretap application and order shows that the purpose of the statute was satisfied — an identifiable authorized individual approved the wiretap application and could be held accountable for it.
Moreover, even if a violation of the statute were found, Toney and Monarrez-Cano misperceive the nature of the remedy available for the breach. The remedy of suppression is available for wrongful disclosure only if the conditions set forth in 18 U.S.C. § 2518(10)(a) are satisfied. United States v. Abramson, 553 F.2d 1164, 1170 (8th Cir. 1977). That statute provides:
Any aggrieved person in any trial, hearing, or proceeding in or before any court . . . may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that —
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.18 U.S.C. § 2518(10)(a).
Suppression is required under the "unlawfully intercepted" component, subparagraph (i), only for "`failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.'" United States v. Donovan, 429 U.S. 413, 432 (1977) (quoting United States v. Giordano, 416 U.S. 505, 527 (1974). A statutory violation renders an interception "unlawful" under this subparagraph of the statute only if the requirement involved plays a substantial role in the regulatory system. Abramson, 553 F.2d at 1170. To determine whether a statutory provision satisfies this standard, a court must determine whether the statutory violations detract from the sufficiency of factors that the issuing judge must find to issue a wiretap order. Abramson, 553 F.2d at 1170.
Those factors are "[t]hat normal investigative techniques have failed or are unlikely to succeed and there is probable cause to believe: (i) that an individual is engaged in criminal activity, (ii) particular communications concerning the offense will be obtained through interception, and (iii) the target facilities are being used in connection with specified criminal activity. Donovan, 429 U.S. at 432.
The alleged violation in this case "could `hardly invalidate an otherwise lawful judicial authorization' made on the basis of the presence of the enumerated factors." See id. (quoting Donovan, 429 U.S. at 432); O'Connell, 841 F.2d at 1416 (holding that a similar discrepancy was of "insufficient substance" to call for suppression of wiretap as "unlawfully intercepted" within the meaning of subparagraph (i)). The court's review of the sealed wiretap application and order show that the statutorily imposed preconditions to judicial authorization were satisfied. The application provided sufficient information to enable the issuing judge to determine that the statutory conditions had been satisfied. See, e.g. Donovan, 429 U.S. at 435 (drawing the distinction between and as failure to comply with approval provision found in Giordano, 416 U.S. at 528, and misidentification of the authorizing official found in United States v. Chavez, 416 U.S. 562 (1974)). The Memo at issue was presented to and reviewed by the issuing judge. The application in this case, despite the misidentification in the approval Memo, shows that the application had, in fact, been approved by a Deputy Assistant Attorney General.
To the extent that it can be argued that the order authorizing the wiretap is facially insufficient for failing to specify the identity of the person authorizing the application, such a defect amounts to a technical defect not warranting suppression. United States v. Moore, 41 F.3d 370, 373-74 (8th Cir. 1995).
Accordingly, I find the wiretap interception was proper and adopt the magistrate's recommendation that the motion to suppress be denied.
IT IS ORDERED:
1. The defendants' objections, Filing Nos. 125 and 128, to the magistrate's report and recommendation, Filing No. 123, are denied;
2. The magistrate's report and recommendation, Filing No. 123, is adopted; and
3. The defendants' motions to suppress, Filing Nos. 77, 80 and 84, are denied.