Petition — Anderson v. United States

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‘ Supreme Court, U. S,

sib. FiILED/ |

| OCT 1 wh

CHE ROOERPECLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No 75-500 t

CLIFF ANDERSON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ADAMS, O’NEAL, HEMINGWAY,

KAPLAN, STONE & BROWN

Manley F. Brown

P. O. Box 993

Macon, Georgia 31202

Attorney for Petitioner

SCOFIELDS’ QUAL.TY PRINTERS, P_ O BOX 53096.N O. LA 70153 - 504/822-1611

TABLE OF CONTENTS

Page

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STATEMENT OF JURISDICTION ................ 2

QUBSTION PRRIBGEINEED .cccccscccccccccscccccees 2

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STATEMENT OF THE CASE

Proceedings and Disposition in the Court

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Basis for Federal Jurisdiction in Trial

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REASONS ,FOR ALLOWANCE OF THE

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APPENDIX A — Opinion by the United States

Court of Appeals, filed February 14,1975...... la

APPENDIX B — Opinion, filed September 2,

PT eee OT Te TTT TCC TE CT Ore ey eee ee 19a

APPENDIX C — Petition for Rehearing, filed

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APPENDIX D — Judgment on Opinion,

entered September 2, 1975 ................0.. 3la

il

TABLE OF AUTHORITIES

Cases: Page

Katz v. U.S., 389 U.S. 347 (1967) ............ 10,11,12

U.S. v. Bernstein, 509 F.2d 996 (4th Cir. 1975),

petition for cert. filed 43 U.S.L.W. 3637 (U.S.

May 27, 1975, No. 74-1486) .................. 9,11,13

U.S. v. Donovan, 513 F.2d 337 (6th Cir. 1975) ..9,11,12

U.S. v. Kahn, 415 U.S. 143 (1974) .............. 9,11,12

U.S. v. Moore, 513 F.2d 485 (D.C. Cir. 1975) .... 9,12

West v. Cabell, 153 U.S. 78 (1894) ................. 10

Statutes:

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Es kc seins sekebkenndes es cdnes eeataet 5,8

ino wis ius se havenent an sannbeees werks 4,9

18 U.S.C. §2510(11) ...... Uieannensteds aus oesedeawes 9

siren tig wart-n hu okneee ee haeerseese ben’ 6

i denned eeceeen sv eaeessnunes 3,6,8

Se ID gv ccccnucovanseueesss¥ueens 9

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ee ED vcccccuseecesctasdecuessecens 10

I un4 4.6 ohawineeesdeedesnkeneeseetinkas 9

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Other Authorities:

Senate Report No. 1097, 1968 U.S. Code Cong.

and Admn. News, Vol. II, pp. 2189-2191 ........ 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

CLIFF ANDERSON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To the Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

Your Petitioner, Cliff Anderson, respectfully shows:

OPINIONS BELOW

The initial opinion below (with one Judge dissent-

ing) was rendered by the United States Court of

Appeals for the Fifth Circuit under the style of United

States v. Doolittle, et al, No. 72-3263, and was filed on

2

February 14, 1975. This opinion is reported at 507 F. 2d

1368 and is attached hereto as Appendix “‘A”’.

Following en banc consideration a final opinion

(with six Judges dissenting) was filed on September 2,

1975 and is attached hereto as Appendix “B”’.

STATEMENT OF JURISDICTION

Following the initial opinion, a timely petition for

rehearing and suggestion for rehearing en banc was

filed and was granted on April 7, 1975. A copy of this

order is attached hereto as Appendix “C’’. The judg-

ment on the opinion of the en banc court was entered

on September 2, 1975, and is attached hereto as Appen-

dix ‘‘D’’. Within 30 days after the entry of the Septem-

ber 2, 1975, opinion and judgment, this petition for cer-

tiorari was filed in accordance with the time require-

ment specified in rule 22(2) of this Court.

Jurisdiction of this Court to review the judgment ir

question is conferred by 28 U.S.C. §1254(1) in that said

judgment was rendered by a United States Court of

Appeals in a criminal case. P

QUESTION PRESENTED

Whether an application and order authorizing a wire

interception is invalid, thereby requiring suppression

of seized conversations, as to a person whose identity

is wel) known to the government and who is not named

in the application and order for the wire interception

SN A RE Sa SR a ee

3

even though there is probable cause to believe that he

is committing the offense to be investigated and that

his telephone conversations will be seized and usea

against him as evidence in a criminal trial.

STATUTES INVOLVED

Section 2518 of Title 18 of the United States Code,

provides in pertinent part:

“(1) Each application for an order au-

thorizing or approving the interception of a

wire or oral communication shall be made in

writing upon oath or affirmation to a judge of

competent jurisdiction .... Each application

shall include the following information:

(b)(iv) the identity of the person, if

known, committing the offense and

whose communications are to be inter-

cepted.

“(4) Each order authorizing or approving

the interception of any wire or oral com-

munication shall specify —

(a) the identity of the person, if known,

whose communications are to be inter-

cepted.

*(10)(a) Any aggrieved person in any trial

... May move to suppress the contents of any

intercepted wire or oral communication, or

4

evidence derived therefrom, on the grounds

that —

(i) the communication was unlawfully

intercepted;

(ii) the order or authorization or ap-

proval under which it was intercepted is

insufficient on its face; or

(iii) the interception was not made in

conformity with the order of authoriza-

tion or approval.

. If the motion is granted, the contents of the

intercepted wire or oral communication, or

evidence derived therefrom, shall be treated as

having been obtained in violation of this chap-

ter.”

Section 2510 of Title 18 of the United States Code

provides in pertinent part:

“(11) ‘Aggrievecd person’ means a percon

who was a party to any intercepted wire or

oral communication or a person against

whom the interception was directed.”

STATEMENT OF THE CASE

Proceedings and Disposition in the Court Below

This case arises from a grand jury indictment

returned in the Middle District of Georgia against nine

defendants including Petitioner Cliff Anderson. (R-2-

23)

- a

5

Count One of the indictment charged all of the defen-

dants except one Kilgore with conspiracy to violate 18

U.S.C. §1952 through the use of telephone facilities in

interstate commerce to promote gambling activity

and 18 U.S.C. §1084 by transmitting through wire com-

munications in interstate commerce gambling infor-

mation. Counts Twothrough Nine alleged substantive

violations of 18 U.S.C. §1952 by all defendants except

Kilgore. (R-12-19) Counts Ten through Twelve

charged only the defendants Masterana and Doolittle

with substantive 18 U.S.C. §1084 violations. (R-20-21)

Counts Thirteen and Fourteen charged the defendants

Doolittle and Kilgore with substantive 18 U.S.C. §1952

violations. (R-21-22) Finally, Counts Fifteen and Six-

teen charged only the defendant Doolittle with sub-

stantive 18 U.S.C. §1084 violations. (R-23) All defen-

dants entered pleas of not guilty to this indictment. (R-

24-26)

Thereafter, various motions were filed, including

timely motions to suppress. (R-402-427, 507-513, 892-

910) These motions were overruled by the district

court. (R-868-870, 942-959)

Petitioner Anderson waived trial by jury and, after

trial, was found guilty on Counts 1, 2, 3,5, 7, 8, and 9 of

the indictment and not guilty on Counts 4 and 6. (R-

2010-2017) The Court handed down a sentence of six

months imprisonment as to Anderson (R-2079) and by

timely notice of appeal (R-2085) his case was appealed

to the United States Court of Appeals for the Fifth Cir-

cuit.

A three-judge pane! of the Court of Appeals for the

,. Fifth Circuit affirmed Petitioner Anderson's convic-

6

tion by a divided vote of 2 to 1 on February 14, 1975.

(See, App. “A’’) Petitioner was thereafter granted a

hearing en banc (see, App. “C’’) and his conviction was

again affirmed by a divided vote of 8 to 6 in an opinion

filed on September 2, 1974. (See, App. “B”’)

With the filing of this timely petition for certiorari,

Petitioner's case is properly before this Court.

Statement of Facts

The factual basis for the prosecution in this case

arose as the result of wire interceptions by the govern-

ment under a court order. This order was issued upon

an application filed by Assistant U.S. Attorney

Charles Erion pursuant to 18 U.S.C. §2516 and 2518 (R-

515-519). Attached to this application was an affidavit

of Gary W. Hart, a special agent with the Federal Bur-

eau of Investigation. (R-520-534)

The application sought authorization to intercept

wire communications of “Billy Cecil Doolittle and

others as yet unknown” concerning offenses commit-

ted and being committed “by Billy Cecil Doolittle and

others as yet unknown.” (R-516) The affidavit of Gary

Hart alleged facts as to probable cause concerning

“Billy Cecil Doolittle and others as yet unknown” (R-

516-517); and, the affiant stated that he believed that

probable cause existed as to “Billy Cecil Doolittle and

others as yet unknown.” (R-518)

On the basis of the application ‘and on the basis of

the affidavit of special agent Gary Hart” Erion re-

quested an order pursuant to 18 U.S.C. §2518 authoriz-

7

ing the F.B.I. to intercept communications on the

specified phones as to Billy Cecil Doolittle and others

as yet unknown.” (R-518-519)

The lengthy affidavit of F.B.I1. agent Gary W. Hart,

which was incorporated in the application, stated in

relevant part that: (1) the defendant Will Sanders wasa

full partner with the defendant Doolittle in the book-

making operation; (2) Doolittle and Sanders dis-

seminate the “line” by telephor 2; (3) parties contacted

by Doolittle and his associates in this manner are Cliff

Anderson of Columbus, Georgia and Billy Baxter of

Augusta, Georgia (R-520); (4) defendants Anderson

and Baxter were engaged in accepting wagers; “Doo-

little was associated with Cliff Anderson of Columbus,

Georgia and Billy Baxter of Augusta” in wagering and

obtaining the “line” by phone and supplies it to Ander-

son and Paxter by phone (R-521); (5) the toll

statements as to the “rotary combination for the

November 28, 1969, through July 28, 1970, billing pe-

riods ... disclosed that certain numbers were called

frequently such as numbers which Cliff Anderson and

William E. Baxter, Jr. subscribed to” (R-528); (6) there

were 678 calls to the phones of Cliff Anderson during

this period and 853 to the phones of William E. Baxter

(R-527-528); (7) the defendant Cliff Anderson had ad-

vised the F.B.I. on September 20, 1967, that he was a

local bookmaker in Columbus, Georgia (R-528); (8)

William E. Baxter had advised the F.B.I. that he was a

bookmaker in Augusta, Georgia (R-530); and (9)

within minutes after Doolittle received the “line” calls

were being placed to phones of defendants Anderson

and Baxter. (R-530-531)

After reviewing the Erion application and the Hart

affidavit, the Court issued two orders, one “authoriz-

ing interception of wire communications” (R-535) and

another “authorizing use of a pen register’. (R-539)

The wire communication order in relevant part

stated that: (1) it was issued pursuant to 18 U.S.C.

§2518; (2) the Court found “probable cause to believe

that Billy Cecil Doolittle and others as yet unknown

have committed and are committing offenses ... by

means of an interstate wire facility (R-535); (3) the

F.B.I. agents were accordingly authorized to

“intercept wire communications of Billy Cecil Doo-

little and others as yet unknown ... to and from the

Sportsman’s Club numbers. (R-537)

The pen register order stated that: (1) there is prob-

able cause as to Billy Cecil Doolittle and others as yet

unknown.

Following issuance of the order authorizing the

wire interception, numerous conversations were

intercepted and were used by the government to

secure convictions against Petitioner Anderson and

the other co-defendants upon the trial of their case.

Basis for Federal Jurisdiction in Trial Court

The indictment in this case charged violations of 18

U.S.C. §1952, §1084 and §371, all of which are federal

offenses and which were properly instituted in the

Macon Division of the United States District Court for

the Middle District of Georgia.

OR NSE REET ters

9

REASONS FOR ALLOWANCE OF THE WRIT

The decisions rendered y the United States Court of

Appeals for the Fifth Circuit in this case are in conflict

with decisions in three other Courts of Appeal, see,

U.S. v. Bernstein, 509 F. 2d 996 (4th Cir. 1975), petition

for cert. filed 43 U.S.L.W. 3637 (U.S. May 27, 1975, No.

74-1486); U.S. v. Donovan, 513 F.. 2d 337 (6th Cir. 1975);

U.S. v. Moore, 513 F. 2d 485 (D.C. Cir. 1975), and the

decision of this Court in U.S. v. Kahn, 415 U.S. 143

(1974).

ARGUMENT

Consideration of the question presented by this peti-

tion has worked not only a conflict between the cir-

cuits and with adecision of this Court, but has split the

Fifth Circuit Court almost down the middle (8 to6). The

issue is one of immense importance to the application

and interpretation of the terms of the omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. §2510-

2520, and should be finally resolved by this Court in

order to insure the Act’s uniform application and its

interpretation in a manner fully consistent with Con-

gressional intent.

The majority position of the court below effectively

waters down and weakens the identity requirements

found in §2518(1)(b) (iv) and §2518(4)(a) by the applica-

tion of the doctrine of substantial compliance and

harmless error, neither of which were ever intended

by Congress to apply to a situation such as this one.

An “aggrieved person” is defined by the Act(18 U.S.C.

§2510(11) ) in the broadest and most uncertain terms to

10

include anyone whose conversation is seized by an in-

terception or against whom an interception is

directed. Such a person is authorized by the very

terms of the Act (18 U.S.C. §2518(10)(a) ) to file a mo-

tion to suppress and no further showing of prejudice is

necessary. This Court’s decision in Katz v. U.S., 389

U.S. 347 (1967) clearly established antecedent judicial

review and a)proval as a Constitutional precondition

to electronic surveillance. The failure to secure such

approval was, in and of itself, sufficiently prejudicial

to warrant suppression. Congress was mindful of this

decision and its requirements when the Act in ques-

tion was passed. See, Senate Report No. 1097, 1968 U.S.

Code Cong. and Adm. News, Vol. II, p. 2189-2190. It

seems obvious that the statutory provisions in ques-

tion were designed to force the government to seek

prior judicial approval as required by the Fourth

Amendment and Katz and that the failure to do so in-

validates any subsequent seizure of wire conver-

sations. In fact, Congress apparently intended to im-

pose even a more stringent requirement as to identity

of the individual whose communications are to be in-

tercepted. In drafting the statutory provisions in ques-

tion, the identity requirements of arrest warrants

were considered and specifically referred to in the

legislative history of the Act. See, Senate Report No.

1097, 1968 U.S. Code Cong. and Adm. News, Vol. II, p.

2191, where the decision of this Court in West v. Cabell,

153 U.S. 78 (1894) is relied upon as illustrating the

nature of the Act’s identity requirement.

An approach more in line with the precise wording

of the statute and the mandate of the Fourth Amend-

ment as interpreted by Katz, was taken by the Courtin

11

Bernstein, supra, in dealing with the government's

lack of prejudice argument:

“We conclude from the unequivocal language

of Title III that Congress intended any unlaw-

ful invasion of an aggrieved person's privacy

to be sufficient harm in itself to require sup-

pression.

‘Prejudice is not an element of the definition’

(of an aggrieved person).” 509 F. 2d at 1004.

Under Bernstein, the fact that Petitioner Anderson

was not named in the application or order is alone suf-

ficient prejudice to support his motion to suppress.

This view is in accord with Katz and Donovan, supra.

Not only is the decision below in direct conflict with

decisions in other circuits, but itis directly contrary to

the holding of this Court in U.S. v. Kahn, 415 U.S. 143

(1974) where Justice Stewart stated that:

“We conclude, therefore, that Title III requires

the naming of a person in the application or in-

terception order only when the law enforce-

ment authorities have probable cause to

believe that the individual is ‘committing the

offense’ for which the wiretap is sought.” 415

U.S. at 155

No substantial effort was made by the majority court

below to come to grips with this conclusion as reached

in Kahn and in effect they chose to ignore it and leave

an apparent and glaring conflict between the decision

12

in this case and the one in Kahn. Also at odds with the

majority opinion in this case and in line with Kahn is

the decision of the Circuit Court for the District of

Columbia in U.S. v. Moore, supra. See also, U.S. v.

Donovan, supra.

Only acursory examination of the Erion application

for a wire interception order and its attachments

reveals that beyond any doubt the government had

probable cause at the time the application was filed to

believe that Petitioner Anderson was committing the

offense which they were investigating. The failure to

name Anderson in the application and order is clearly

violative of the terms of the statute and of the directive

in this regard found in Kahn. There is no compliance

with the spirit of the decision in Katz and the Con-

gressional history behind the provisions in question

has not been seriously considered in arriving at the in-

tent of the body which drafted the Act in question. The

Fifth Circuit Court of Appeals cannot agree among its

members nor can it find common ground with at least

three other Circuit Courts of Appeal. The resulting

conflict and uncertainty in the law should be resolved

by this Court.

ree renee

13

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this case presents the cla»sic conflict con-

templated by Rule 19 of this Court and that it fully

justifies review by certiorari. The petition for cer-

tiorari should accordingly be granted and this case

should be consolidated for consideration along with

Bernstein, supra.

Resepctfully submitted,

ADAMS, O'NEAL,

HEMINGWAY, KAPLAN,

STONE & BROWN

Manley F. Brown

Counsel of Record for

Petitioner, Cliff Anderson

P. O. Address:

P. O. Box 993

Macon, Georgia 31202

14

CERTIFICATE OF SERVICE

This is tc certify that I have this day served the

foregoing 1! .ion for Writ of Certiorari and at-

tachments by mailing copies of same, with proper

postage affixed and via airmail, to Robert H. Bork,

Solicitor General, Department of Justice, Washington,

D.C., 20530; Mr. Oscar B. Goodman, 230 Las Vegas

Boulevard, South, Las Vegas, Nevada, 89101, and by

regular mail to Floyd Buford, P. O. Box 755, Macon,

Georgia, 31202, and Wesley R. Asinof, 3424 First

National Bank Building, 2 Peachtree Street, Atlanta,

Georgia.

This ___ day of September, 1975.

Manley F. Brown,

Counsel of Record for

Cliff Anderson

la

APPENDIX A

UNITED STATES of America, Plaintiff-Appellee.

versus

Billy Cecil DOOLITTLE, William Augustus Sanders,

Jr., Ernest Massod Union, Julian Wells Whited, Frank

Joseph Masterana, Cliff Anderson, Darnice T.

Malloway, and William E. Baxter,

Defendants-Appellants.

No. 72-3263

United States Court of Appeals,

Fifth Circuit.

Feb. 14, 1975.

Appeals from the United States District Court for

the Middle District of Georgia.

Before THORNBERRY, AINSWORTH and RONEY..

Circuit Judges.

RONEY, Circuit Judge:

All defendants were convicted in a non-jury trial for

conspiracy to violate 18 U.S.C.A. §§ 1084 and 1952,

which prohibit the use of interstate wire and tele-

phone facilities to carry on illegal gambling

operations. All defendants were similarly convicted

of substantive violations of § 1952, and defendants

Masterana and Doolittle were also convicted of sub-

2a

stantive violations of § 1084. The convictions were ob-

tained primarily by the use of conversations inter-

cepted by a wiretap authorized by the district court un-

der Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520, and the

fruits of searches for which the wiretap provided prob-

able cause. Recognizing that without this evidence the

Government's case would be substantially weakened,

if not destroyed, defendants mounted a multifaceted

assault on the wiretap in a motion to suppress the

evidence in the district court. The district court de-

nied the motion, and the convictions followed. The at-

tack has been renewed in this Court, but like the dis-

trict court, we find no infirmity warranting suppres-

sion of the evidence and affirm all convictions.

Defendants first attack the wiretap provisions of the

Omnibus Crime Control Act as unconstitutional for

violations of the First, Fourth, Fifth and Sixth

Amendments. We have recently upheld this portion of

the siatute agaist a similar constitutional attack.

United States v. Sklaroff, 506 F.2d 837 (5th Cir. 1975).

Next the defendants assert that various procedural

irregularities in the authorization of the wiretap re-

quest within the Justice Department require that the

evidence be suppressed. See 18 U.S.C.A. § 2515. The

Supreme Court of the United States has ruled that

irregularities of the kind asserted here do not render

the communications “unlawfully intercepted” or the

interception request “insufficient on its face.”” United

States v. Chavez, 416 U.S. 562, 94S.Ct. 1849, 40 L.Ed.2d

380 (1974); see 18 U.S.C.A. §§ 2518(10)(a)(i),

2518(10)(a)(ii). At the time this case was argued, the

3a

Supreme Court had not decided Chavez and appellants

relied on the Ninth Circuit decision in that case. Unit-

ed States v. Chavez, 478 F.2d 512 (9th Cir. 1973). The

Supreme Court modified that portion of the Ninth Cir-

cuit decision upon which the appellants relied. We find

nothing in this case to warrant a different result than

that determined by the Supreme Court in Chavez. Con-

sidering the other information contained in the Inter-

ception Order Authorization, such as the location of

the phones to be tapped, address of the Sportsman's

Club, and its owner, we find the one incorrect digit in

one of the four telephone numbers listed therein to be

an immaterial variation from the actual, correct num-

ber for which the tap was requested of the district

court. Cf. United States v. Chavez, supra.

The procedure of filing the affidavits of the Attorney

General and his subordinates, as a method of proving

the administrative history of the specific authoriza-

tion in this case, is identical to that used in Chavez.

There is no constitutional infirmity in the district

court’s refusal to require more of the Attorney

General on this narrow issue of fact.

Appellants contend that the use of a “pen register,”

as in this case, is not specifically authorized by Title

III and must, therefore, be considered rejected by Con-

gress as an appropriate investigative tool. The Act

does not prohibit the use of pen registers and we do not

view its use in this case, based upon probable cause

and with a separate authorization from the district

court, as being constitutionally offensive. See United

States v. Giordano, 416 U.S. 505, 553-554, 94 S.Ct. 1820,

40 L.Ed.2d 341 (1974) (Powell, joined by the Chief

4a

Justice, and Blackmun and Rehnquist, JJ., concur-

ring in part and dissenting in part); United States v.

Finn, 502 F.2d 938 (7th Cir. 1974); United States v.

Brick, 502 F.2d 219, 223 (8th Cir. 1974); cf. United States

v. Falcone, 364 F.Supp. 877 (D.N.J.1973), aff'd, 500 F.2d

1401 (3rd Cir. 1974).

Certain defendants assert that the Government lack-

ed probable cause to believe that their conversations

would be intercepted by the wiretap. They contend that

this lack of probable cause should render the tap un-

lawful as to them. A similar argument-has been re-

jected by the Supreme Court in United States v. Kahn,

415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). At oral

argument, the appellants relied upon the Seventh Cir-

cuit decision in United States v. Kahn, 471 F.2d 191(7th

Cir. 1972). The reversal by the Supreme Court of the

Seventh Circuit decision is dispositive of the issue as

framed here. The statute does not require that there be

probable cause as to all persons whose conversations

are intercepted. See 18 U.S.C.A. § 2518(1)(b)(iv). Since

the wiretap in this case was validly issued, the wire-

tap conversations of those individuals not known to be

involved in criminal activity at the time of the court

authorization may be used against them.

The wiretap authorization referred to “Billy Cecil

Doolittle and others as yet unknown.” Anderson and

Baxter contend that the Government had reasonable

cause to believe that their conversations would be

intercepted. Relying on certain language in the

Supreme Court’s opinion in Kahn, they argue that, not

being “unknown,” they should have been named in the

authorization. They contend that since they were not

5a

named, the wiretap order was illegal as to their con-

versations. The same argument could be made for

Sanders. We reject this argument. The defendants nei-

ther allege nor demonstrate any prejudice to them in

not being named in the authorization. The Govern-

ment contends that its agents had personal knowl-

edge, as opposed to information, to support probable

cause as to illegal activity only of Doolittle, the co-

owner of the Sportsman’s Club, the establishment

wherein the telephones were located and to which the.

telephone bills were sent. All defendants received an

inventory of the intercepted conversations, were

allowed to listen to the tapes and received transcripts

of the conversations prior to use against them at trial,

as if they had been named in the order. Most of thecon-

versations of each defendant were with Doolittle, the

person named in the order. There is no indication of

bad faith or attempted subterfuge by the Government

in its wiretap application. The application and af-

fidavit delineated specifically the information ex-

pected to be gathered from the tap. We hold there was

substantial compliance with the requirements of the

Act, and that the failure to name other defendants does

not render the evidence obtained as to them inadmissi-

ble under 18 U.S.C.A. § 2518(10)(a).

The last general attack by all defendants is that the

wiretaps exceeded the scope of the interceptions

authorized by the court order. The testimony by the

monitoring agent at the suppression hearing reveals

that they listened to each call only long enough to

determine whether in their judgment it could be one

dealing with gambling as authorized to be intercept-

ed by the distr‘ct court. Only those calls which the

agents reasonably believed were related to gambling

were recorded on tape. There is no question that some

irrelevant and personal portions of gambling conver-

sations were intercepted or that certain nonpertinent

conversations were intercepted. But this is inherent in

the type of interception authorized by Title III, and we

do not view the simple inclusion of such conver-

sations, without more, as vitiating an otherwise valid

wiretap. The procedure testified to by the agents

appears a reasonable method for complying with the

order of the district court, in accord with the statutory

mandate that the interception be conducted in such a

way as to minimize the interception of communica-

tions not otherwise subject to interception under Title

III. United States v. Cox, 462 F.2d 1293 (8th Cir. 1972),

cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223

(1974).

The district court specifically found that defendants

Malloway and Baxter lacked actual knowledge of the

use of interstate facilities in the gambling operation.

This lack of specific knowledge is legally irrelevant.

The words of § 1952 do not require specific knowledge

of the use of interstate facilities and we agree with the

decisions in other Circuits that such knowledge is not

a prerequisite to criminal liability thereunder. See,

e. g., United States v. Roselli, 432 F.2d 879 (9th Cir.

1970), cert. denied, 401 U.S. 924, 91S.Ct. 883, 27 L.Ed.2d

828 (1971); United States v. Hanon, 428 F.2d 101 (8th Cir.

1970), cert. denied, 402 U.S. 952,91S.Ct. 1608, 29 L.Ed.2d

122 (1971); United States v. Miller, 379 F.2d 483 (7th

Cir.), cert. denied, 389 U.S. 930, 88 S.Ct. 291, 19 L.Ed.2d

281 (1967).

7a

Anderson individually challenges the district

court’s handling of his evidentiary objection to certain

of the intercepted conversations as hearsay. The trial

court's rulings on this matter shows a clear under-

standing of the law on the exception to the hearsay

rule which applies to statements made by co-

conspirators in furtherance of the conspiracy. See,

e. g., United States v. Register, 496 F.2d 1072, 1078-1079

(Sth Cir. 1974); United States v. Williamson, 482 F.2d

508, 513 (5th Cir. 1973). An examination of the record

shows sufficient independent evidence of the ex-

istence of a conspiracy to which Anderson was a party

to warrant the introduction of the hearsay conver-

sations against him.

Affirmed.

THORNBERRY, Circuit Judge (concurring in part

and dissenting in part):

I concur in the decision affirming the convictions of

Doolittle, Malloway, and Masterana. With regard to

appellants Anderson, Baxter, and Sanders, however, I

would reverse; hence I respectfully dissent from so

much of the majority opinion as affirms their convic-

tions.

I do so not without reluctance, for the majority ad-

mirably attempts to demonstrate that the latter defen-

dants were not prejudiced by the procedure under

which their intercepted telephone communications

were used against them at trial. That is while these

defendants enjoyed along with every member of the

public a Congressionally-recognized interest in in-

dividual privacy, their interest must be balanced

against the government's interest in enforcing laws

relating to the crimes enumerated in 18 U.S.C.

§ 2516(1)(a)-(g). Under the circumstances of this case,

these defendants having obtained inventories and

access to the evidence, the majority necessarily rea-

sons that the governmental interest must prevail.

If the choice were ours to make, I probably would not

quarrel with the majority’s conclusions that “there

was substantial compliance with the requirements of

[Title III], and, consequently, no requirement of sup-

pression as to Anderson, Baxter, and Sanders due to

the failure of the government and the district court to

name them in either the wiretap application or the

resulting order. The controlling issue of statutory

construction, however — an issue with which the ma-

jority does not come to grips — has already been decid-

ed rather clearly by the Supreme Court. It is in the

application of the Court’s rule of statutory construc-

tion! to the facts that I find myself in basic disagree-

ment with the majority.

In United States v. Kahn, 415 U.S. 143, 155, 94 S.Ct.

977, 984, 39 L.Ed.2d 225, 237 (1974), the square holding

is as follows:

1 The pertinent provisions of 18 U.S.C. § 2518 are:

(1)(b)(iv) — “Each application shall include the following

information: . . . the identity of the person, if known, com-

mitting the offense and whose communications are to be

intercepted... .”

(4)(a) — “Each order authorizing or approving the in-

terception of any wire or oral communication shall

specify — the identity of the person, if known, whose com-

munications are to be intercepted... .”

We conclude, therefore, that Title III re-

quires the naming of a person in the applica-

tion or interception order only when the law

enforcement authorities have probable cause

to believe that the individual is “committing

the offense” for which the wiretap is sought.

Since it is undisputed that the Government

had no reason to suspect Minnie Kahn of com-

plicity in the gambling business before the

wire interceptions here began, it follows that

under the statute she was among the class of

persons “as yet unknown” covered by Judge

Campbell's order.

Having so held, the Court proceeded to reverse the

Seventh Circuit, which had ordered Minnie Kahn's

gambling-related telephone conversations sup-

pressed, albeit for reasons more onerous to the

government than the test announced by the Supreme

Court.

Perhaps apprehensive about its quick dismissal of

Kahn in this case, the majority somehow divines a

contention by the government that probable cause to

suspect participation “in the gambling business” ex-

isted only as to Doolittle at the time when wiretap au-

thorization was sought. The majority suggests that

this absence of probable cause as to the “others as yet

unknown” may have resulted from government

possession of mere hearsay information, rather than

personal observation by investigating agents,

concerning the behavior of these ‘“others.”’ Such a

dichotomy, if seriously advanced, could indeed effect a

major reformulation of the law of probable cause. See

10a

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21

L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84

S.Ct. 1509, 12 L.Ed.2d 723 (1964); Draper v. United

States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327,

331 (1959); Gonzales v. Beto, 5th Cir. 1970, 425 F.2d 963,

968-970, cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27

L.Ed.2d 189 (1970). Nor do I understand the majority to

suggest that “probable cause” as toa given individual

or telephone number connotes a more demanding

standard when wiretaps are used by contrast to other

types of searches. Again such a suggestion would, in

my view, be erroneous. See United States v. Falcone,

3rd Cir. 1974, 505 F.2d 478, 481; United States v. Finn,

7th Cir. 1974, 502 F.2d 938, 941. The question with which

I shall attempt to deal. then, is whether, at the time

when wiretap authorization was sought, the govern-

ment had probable cause to suspect that Anderson,

Baxter, and Sanders were conspiring with or assisting

Doolittle in illegal gambling involving the use of the

telephone at the Sportsman’s Club. For reference,

reproduced in the margin? are the government's wire-

2 APPLICATION

(Number and Title Omitted)

Charles T. Erion, an Assistant United States Attorney, Middle

District of Georgia, being duly sworn states:

This sworn application is submitted in support of an order au-

thorizing the interception of wire communications. This applica-

tion has been submitted only after lengthy discussion concerning

the necessity for such an application with various officials of the

Organized Crime and Racketeering Section, United States Depart-

ment of Justice. Washington, D. C., together with Agents of the

Federal Bureau of Investigation.

1. He is an “investigative or law enforcement officer — of the

United States” within the meaning of Section 2510(7) of Title 18,

United States Code, that is — he is an attorney authorized by law to

prosecute or participate in the prosecution of offenses enumerat-

ed in Section 2516 of Title 18, United States Code.

2. Pursuant to the powers conferred on him by Section 2516 of

Title 18, United States Code, the Attorney General of the United

States, the Honorable John N. Mitchell, has speciaily designated

ila

the Assistant Attorney General for the Criminal Division of the

United States Department of Justice, the Honorable Will Wilson, to

authorize affiant to make this application for an order authorizing

the interception of wire communications. The letter of authoriza-

tion signed by the Assistant Attorney General is attached to this

application as Exhibit A.

[516] 3. This application seeks authorization to intercept wire

communications of Billy Cecil Doolittle and others as yet un-

known concerning offenses enumerated in Section 2516 of Title 18,

United States Code, that is — offenses involving the transmission,

by means of an interstate wire facility, of gambling and wagering

information by a person engaged in the business of gambling, in

violation of Title 18, United States Code, Section 1084, and the use

of interstate telephone communication facilities for the trans-

mission of betting information in aid of a racketeering enterprise

(gambling), in violation of Section 1952 of Title 18, United States

Code, and a conspiracy to commit such offenses in violation of

Section 371 of Title 18, United States Code, which have been com-

mitted and are being committed by Billy Cecii Doolittle and others

as yet unknown.

4. He has discussed all the circumstances of the above offenses

with Special Agent Gary W. Hart of the Macon, Georgia office of

the Federal Bureau of Investigation who has directed and con-

ducted the investigation herein, and has examined the affidavit of

Special Agent Hart (attached to this application as Exhibit B and

incorporated by reference herein) which alleges the facts therein

in order to show that:

(a) there is probable cause to believe that Billy Cecil

Doolittle and others as yet unknown have committed and

are committing offenses involving the transmission, by

means of an interstate wire facility, of gambling and

wagering information by a person engaged in the busi-

ness of gambling, in violation of Title 18, United States

Code, Section 1084, and the use of interstate [517] telephone

communication facilities for the transmission of betting

information in aid of a racketeering enterprise (gam-

bling), in violation of Section 1952 of Title 18, United States

Code, and are conspiring tocommit such offenses in viola-

tion of Section 371 of Title 18, United States Code.

(b) there is probable cause to believe that particular wire

communications of Billy Cecil Doolittle and others as yet

unknown concerning these offenses will be obtained

through the interception, authorization for which is

herewith applied for. In particular, these wire com-

munications will concern the interstate transmission of

gambling information relating to the outcome of profes-

sional baseball] games and the dissemination of such infor-

mation to persons engaged in the unlawful business of

gambling, and the participants in the commission of said

offenses.

12a

(c) normal investigative procedures reasonably appear

to be unlikely to succeed and are too dangerous to be used.

(d) there is probable cause to believe that the telephones

listed to the Sportsman's Club located in the premises of

the Sportsman's Club, 222 Third Street, Macon, Georgia,

and carrying telephone numbers 912-746-9110, 912-745-

2843, 912-745-2844, and 912-745-2845 have been used and are

being used by Billy Cecil Doolittle and others as yet un-

known [518] in connection with the commission of the

above-described offenses.

5. No previous application has been made to any Judge for au-

thorization to intercept or for approval of interception of wire or

oral communications involving any of the same persons,

facilities, or places specified herein.

WHEREFORE, your affiant believes that probable cause exists

to believe that Billy Cecil Doolittle and others as yet unknown are

engaged in the commission of offenses involving the transmis-

sion of gambling and wagering information by means of an inter-

state wire facility, by a person engaged in the business of gam-

bling and the use of interstate telephone communication facilities

for the transmission of betting information in aid of a racketeer-

ing enterprise (gambling), and a conspiracy to do so; that Billy

Cecil Doolittle and others as yet unknown have used, and are using

the telephone listed to the Sportsman's Club, located at 222 Third

Street. Macon, Georgia, and bearing numbers 912-746-9110, 912-

745-2843, 912-745-2844, and 912-745-2845, in connection with the

commission of the above-described offenses; that communica-

tions of Billy Cecil Doolittle and others as yet unknown concern-

ing these offenses will be intercepted to and from the above-

described telephone; and that normal investigative procedures

appear unlikely to succeed and are too dangerous to be used.

On the basis of the allegations contained in this application and

on the basis of the affidavit of Special Agent Hart, which is at-

tached hereto and made a part hereof, affiant requests this court to

issue an order, pursuant to the power conferred on it by Section

2518 of Title 18, United States Code, authorizing the Federal Bur-

eau of Investigation of the United States Department of Justice to

intercept wire communications to and from the above-described

telephones until [519] communications are intercepted which

reveal the manner in which Billy Cecil Doolittle and others as yet

unknown participate in the illegal use of interstate telephone

facilities for the transmission of betting information in aid of a

racketeering enterprise (gambling), and which reveal the iden-

tities of his confederates, their places of operation, and the nature

of the conspiracy involved therein, or for a period of fifteen (15)

days from the date of that order, whichever is earlier.

/s/ CHARLES T. ERION

CHARLLS T. ERION

Assistant United States

Attorney

Middle District of Georgia

13a

Subscribed and sworn to before

me this 21 day of August, 1970.

/s/ W. A. BOOTLE

UNITED STATES

DISTRICT JUDGE

AFFIDAVIT OF GARY W. HART

Gary W. Hart, Special Agent, Federal Bureau of Investigation,

Macon, Georgia, being duly sworn, states:

1. Iam an “investigative or law enforcement officer of the Unit-

ed States” within the meaning of Section 2510(7) of Title 18, United

States Code — that is, an officer of the United States who is em-

powered by law to conduct investigations of and to make arrests

for offenses enumerated in Section 2516 of Title 18, United States

Code.

2. I have conducted an investigation of the offenses of Billy

Cecil Doolittle and, as a result of my personal participation in that

investigation and of reports made to me by other agents, I am

familiar with all the circumstances of the offenses.

3. A confidential informant who has admitted personal par-

ticipation in gambling activities, has stated that Doolittle

operates a bookmaking operation in the Sportsman's Club, located

at 222 Third Street, Macon, Georgia. Doolittle is assisted in his

bookmaking operation by Will Sanders who is a full partner. Doo-

little obtains the “line” for professional baseball games from an

unknown individual by placing a call from a pay telephone booth

located in the poolroom of the Sportsman's Club at approximate-

ly noon each day, and Doolittle and Sanders thereafter dis-

seminate the “line,” accept wagers on professional baseball

games, and “lay off” bets through use of several] telephones, one of

which is numbered 745-2844, located in the ‘members only” room

of the Sportsman's Club which is adjacent to the pool room.

Among individuals contacted by Doolittle and his associates in

this manner are Cliff Anderson of Columbus, Georgia, and Billy

Baxter of Augusta, Georgia.

I have established through independent investigation that this

informant has had the opportunity to obtain first-hand knowledge

of the activities the informant has destribed. This informant has

been contacted by Special Agents of the Federal Bureau of In-

vestigation [521] on several occasions since January 1970 and on

four occasions the informant has furnished information which has

been determined to be accurate by independent investigation.Ona

date during the week beginning on August 2, 1970, this informant

stated that within five (5) days prior to that date through personal

observation of Doolittle’s activities in the Sportsman's Club, the

informant determined that Doolittle is currently operating as de-

scribed in the preceding paragraph. This informant further stated

that through first-hand knowledge the informant knows that

Anderson and Baxter are engaged in accepting wagers on the out-

come of professional baseball games as of a date during the week

beginning on August 2, 1970.

14a

4. A second confidential informant who has admitted personal

participation in gambling activities has also stated that Doolittle

operates a bookmaking operation in the Sportsman's Club located

at 222 Third Street, Macon, Georgia, in a room off the pool hall area

of the building. Further, informant states that during the 1970

professional baseball season, Doolittle, assisted by Will Sanders

who is a partner, has utilized telephones, one of which is num-

bered 745-2844, located in this room to facilitate the placing and

acceptance of wagers based upon the outcome of professional

baseball games. Doolittle is associated with Cliff Anderson of

Columbus, Georgia, and Billy Baxter of Augusta, Georgia, and he

participates with these individuals, and others unknown, i. the

placing and accepting of wagers based upon the outcome of profes-

sional baseball games. Doolittle is associated with Cliff Ander-

son games by placing a call from a pay telephone booth located in

the Sportsman's Club at approximately noon each day, and subse-

quently supplies this line to the aforementioned to assist them in

the placing and acceptance of wagers based on the outcome of pro-

fessional baseball games.

[522] I have established through independent investigation that

this informant has had the opportunity to obtain first-hand knowl-

edge of the activities the informant has described. This informant

has been contacted by Special Agents of the Federal Bureau of In-

vestigation on several occasions since January 1970 and.on 22 oc-

casions the informant has furnished information which has been

determined to be accurate by independent investigation. On a date

during the week beginning on August 9, 1970, this informant stated

that within five (5) days prior to that date, through personal con-

versation with one of the principals at the Sportsman's Club, the

informant determined that Doolittle is currently operating as de-

scribed in the preceding paragraph. This informant further stated

that through first-hand knowledge the informant knows that

Anderson and Baxter are engaged in accepting wagers on the out-

come of professional baseball games as of a date during the week

beginning on August 9, 1970.

6. Examination of the records of the Macon, Georgia, Credit

Bureau on April 27, 1970, disclosed that Doolittle and William A.

Sanders, Jr., are listed as owners of the Sportsman's Club, Macon,

Georgia. Sanders was also listed as a former employee of the

Southern Bell Telephone Company for 13 years.

ese eee ae

/s/ GARY W. HART

Special Agent

Federal Bureau of

Investigation

Subscribed and sworn before me

this 21 day of August, 1970.

/s/ W. A. BOOTLE

United States District Judge

15a

tap application and supporting affidavit of Special

Agent Gary W. Hart, insofar as these materials are il-

luminative of the question at hand.

Among the features of these materials which con-

vince me that law enforcement officers had probable

cause as to Anderson, Baxter, and Sanders are the

following: (a) The basis of the application was Hart's

affidavit. Repeatedly Hart explicitly refers to a

telephone wagering operation conducted over the

Sportsman's Club telephone by Doolittle, Anderson,

Baxter, and Sanders. (b) Hart avers that these ac-

tivities were reported to him by confidential infor-

mants, alleged upon Hart’s oath to have made

declarations against penal interest as indicia of

reliability, one of whom is further alleged to have

given reliable information on twenty-tv o prior oc-

casions. (c) The information is quite specific with

respect to the players, their roles, certain wagered

athletic contests, and the physical setting. (d) Hart

avers that this specificity is the product of personal

knowledge on the part of the informants, whose per-

sonal knowledge Hart swears he has verified through

“independent investigation.” Without belaboring the

point, I simply confess my bemusement that if the

Hart affidavit did not provide probable cause as to

Anderson, Baxter, and Sanders, I do not know what

would. See Gonzales v. Beto, supra, 425 F.2d at 968-969;

see also Polanco v. Estelle, 5th Cir. 1975, 507 F.2d 81

("in judging probable cause magistrates are not to be

confined by restrictions on their use of common

sense”’); United States v. James, 9th Cir. 1974, 494 F.2d

1007; United States v. McHale, 7th Cir. 1974, 495 F.2d 15.

Yet, for reasons not entirely apparent to this court, the

16a

government saw to it that neither the application nor

the order made reference to any of these three defen-

dants.

The government's own statements shed additional

light on the issue. When this appeal was briefed, the

Supreme Court had not yet decided Kahn. At that time

the government's position was that the term “person,

if known,” as used in § 2518(1)(b)(iv) and 4(a), meant

only the “subject” of the interception, whom the

government contended was Doolittle. Not an-

ticipating that the Supreme Court would choose a mid-

dle ground between its argument and the “‘discovera-

bility” test successfully advanced by Minnie Kahn in

the Seventh Circuit, the government stated in its brief

to this court:

The application in the present case demon-

strated that agents Of the government actually

“knew,” that is had personal knowledge as op-

posed to information, of only one defendant

who was using the phones in question: defen-

dant Doolittle, the person named in the order.

They and the Court had nothing more than

“probable cause to believe” that Anderson and

Baxter [and Sanders] would be intercepted.‘

Or, I would add, that these three were “committing the

offense” for which the wiretap was sought.

3 Thedistrict court, in drawing the wiretap order, simply adopted

the “others as yet unknown” language used by the government in

its application.

4 Brief for the government at 28-29.

17a

Thus, the majority manufactures for the govern-

ment a result which reflects considerable profit from

inconsistent positions, while purging the

government's contention of any adverse conse-

quences, however logical or proper they may be.

Appellant Anderson argues that in this respect the

government should now be estopped. There may be

merit to Anderson's argument, inasmuch as the

government was equally as capable as appellants to

anticipate what the Supreme Court would hold in

Kahn. I need not rest my views on estoppel, however,

since I have already concluded that the requisite prob-

able cause existed as to Anderson, Baxter, and

Sanders at the time when tap authorization was

sought. Under Kahn, therefore, I would reverse as to

these three with directions to the district court to sup-

press their intercepted communications pursuant to

18 U.S.C. § 2518(10)(a)(ii) (“order of authorization or

approval under which it was intercepted is insuf-

ficient on its face’’).5

5 Although the majority does not make this argument in support

of its conclusion that Title III was substantially complied with,

one might contend that paragraph 4 of the wiretap applicat). n,

which purports to incorporate the Hart affidavit by referei.ce.

operated in legal usage to name Anderson, Baxter, and Sanders in-

sofar as § 2518(1)(b)(iv) required that they be named in the applica-

tion. One might then argue that since neither the application, the

supporting affidavit, nor the order in Kahn mentioned Minnie

Kahn, and that since the Supreme Court phrased its holding dis-

junctively in terms of naming a person in the application or

interception order, the Court implied thereby that the naming of

probable cause suspects in either the application or the order

would satisfy the statute. | may assume that the incorporation by

reference operated to name Anderson, Baxter, and Sanders in the

application, but I reject the idea that Kahn supports or implies the

rest of the argument. First, the significant feature of Kahn is its

emphasis on the literal language and terms of Title III. In addition

to requiring, under Kahn, the naming of probable cause suspects

in the application. Title III literally requires that they also be

named in the order, § 2518(4)(a). That was not done in this case, and

f

18a

Kahn — inasmuch as it involved no question of half-compliance,

through incorporation by reference or otherwise — cannot be

deemed to support an analysis which runs counter to the statute's

literal provisions. Second, although Kahn holds that the district

court's duty to include names in the order is no broader than the

government's duty to include them in the application, the Court

explicitly recognized that ‘“[sjection 2518(4)(a) requires that the

order specify ‘the identity of the person, if known, whose com-

munications are to be intercepted.’ * 415 U.S. at 151,94 S.Ct. at 982,

39 L.Ed.2d at 234. This part of the Court's discussion does strongly

imply a responsibility on the government to see that the names of

its probable cause suspects are placed in the court's order — the

operative document for initiating a lawful wiretap — as well as the

application. This responsibility arises because “the judge who

prepares the order can only be expected to learn of the target in-

dividual's identity through reference to the original application

” Id.

19a

APPENDIX B

UNITED STATES of America,

Plaintiff-Appellee,

versus

Billy Cecil DOOLITTLE, William Augustus Sanders,

Jr., Ernest Massod Union, Julian Wells Whited, Frank

Joseph Masterana, Cliff Anderson, Darnice T.

Malloway, and William E. Baxter, :

Defendants-Appellants.

No. 72-3263.

United States Court of Appeals,

Fifth Circuit.

Sept. 2, 1975

Appeals from the United States District Court for

the Middle District of Georgia, William A. Bootle,

Judge, 341 F.Supp. 163.

Before BROWN, Chief Judge, and WISDOM, GEWIN,

BELL, THORNBERRY, COLEMAN, GOLDBERG,

AINSWORTH, GODBOLD, DYER, SIMPSON,

CLARK, RONEY and GEE, Circuit Judges.*

/

PER CURIAM:

The Court voted to reconsider this case en banc

primarily to determine the correctness of the issue on

* Circuit Judge Morgan did not participate in the decision of this

case.

20a

which the panel divided: whether the failure to name

defendants Anderson, Baxter and Sanders in the

wiretap interception order required suppression in

their trials of intercepted telephone conversations to

which they were parties. A majority of the en banc

court agrees with the panel’s resolution of the issue

and the convictions of Anderson, Baxter and Sanders

are affirmed on the basis of the panel opinion. United

States v. Doolittle, 507 F.2d 1368 (5th Cir. 1975). Having

considered all issues in the case, the Court agrees that

the panel correctly decided the issues on which the

panel was itself unanimous.

Affirmed.

BROWN, Chief Judge, and WISDOM,

THORNBERRY, GOLDBERG and SIMPSON, Circuit

Judges, dissent from the affirmance of the convictions

of Anderson, Baxter and Sanders, and would reverse

for the reasons stated in Judge Thornberry’s dissent to

the panel decision. 507 F.2d at 1372. Cf. United States v.

Bernstein, 509 F.2d 996 (4th Cir. 1975), petition for cert.

filed, 43 U.S. L.W. 3637 (U.S. May 27, 1975) (No. 74-1486).

GODBOLD, Circuit Judge (dissenting):

The problem presented is whom must the govern-

ment name in its applications for wiretap orders un-

der the Omnibus Crime Control and Safe Streets Act of

1968, 18 U.S.C. §§ 2510-2520. The pertinent section re-

quires the government to state in its application for a

wiretap order “the identity of the person, if known,

committing the offense and whose communications

are to be intercepted... ,” § 2518(1)(b)(iv). The court

—

oe ewes eee Selo:

2ia

order must state “the identity of the person, if known,

whose communications are to be intercepted ....”

§ 2518(4)({a).! Defendants contend that the government

must name every person who it has probable cause to

believe is committing the crime being investigated.

The Fourth and Sixth Circuits have adopted that view.

United States v. Bernstein, 509 F.2d 996 (CA4, 1975);

United States v. Donovan, 513 F.2d 337 (CA6, 1975). The

government contends, in e*fsct, that so long as it gives

the name of one person with respect to whom it has

probable cause it need not reveal the names of others

with respect to whom probabie cause is also present.

Neither approach to the government's obligation is

workable. The defendants’ view is too expansive. A

single wiretap may produce dozens if not hundreds of

names of individuals not seriously under investiga-

tion but with respect to whom the existence of prob-

able cause might be found. The probable cause ap-

proach would stifle if not smother the law enforce-

ment efforts of government agencies with ad-

ministrative labors. I think Congress did not intend

such a result.

The government's view is too narrow. Congress did

not intend to permit the government to name whom-

ever it chooses and no others. The thrust of the wire-

tap statute is judicial supervision of necessary ex-

ecutive invasions of privacy. Such supervision can

only serve its function where the supervising court

has sufficient access to the information needed for due

1 The insignificance of the discrepancy between the language

relating to wiretap applications and that relating to wiretap or-

ders is discussed in United States v. Kahn, 415 U.S. 143, 152,94S.Ct.

977, 982, 39 L.Ed.2d 225, 235 (1974).

22a

consideration of wiretap applications. In these ex

parte proceedings the government is the only source

of information. An interpretation that requires the

government agency to name only one person when it

is actively directing the interception against many

more persons reads the naming requirement out of the

Act and shifts the locus of informed decision-making

from the courts to the agencies. This is contrary to the

intent of Congress.

The majority panel decision, adopted by the en banc

majority, does not decide whether there was or was not

probable cause with respect to Anderson, Baxter and

Sanders. Judge Thornberry pointed out in his dissent

to the panel opinion that it did not come to grips with

this question. Rather, the panel opinion appears to say

that, even if there was probable cause with respect to

these defendants, the governmental action is nonethe-

less salvaged by an amalgam of substantial com-

pliance with the statute, no prejudice to the defen-

dants, and no bad faith or subterfuge by the govern-

ment. I have great difficulty with this cure by

analgesic balm. The statutory scheme recognizes the

privacy interest of one using telephone communica-

tions and makes wiretapping a felony except for stat-

utorily prescribed exceptions, 18 U.S.C. § 2511(1). I

think none of these grounds is adequate to overcome

the poiicies inhering in the congressional determina-

tion to prohibit and severely punish unauthorized

wiretapping, §§ 2511(1) and 2520.

Construing after-the-fact performance of the re-

quirement of § 2518(8)(d) as substantial compliance

misses the thrust of the statute, which is not dis-

23a

closure to the victim after the fact but review by a

federal district judge before the fact. What is missing

from the government's proffered compliance is the

federal district judge’s review of the wiretap plans to

protect the privacy interest of the unnamed persons.

This is the heart of the statutory scheme. When the per-

son is not named the further disclosure requirements

of § 2518(1)(e) are also not triggered and judicial

supervision becomes a charade.*

Even if that right is discounted, reliance upon after-

the-fact compliance with the requirements of

§ 2518(8)(d) as substantial compliance with the stat-

utory scheme renders the application and order re-

quirements nugatory. If the government need not

name a suspect so long as he is given after-the-fact

notice and transcripts, then the government need

never disclose names in the original application, for it

could always give retrospective validity to its actions

by sending notice and transcript to whomever it later

chooses to prosecute. Without names the courts will be

seriously disabled in their function of reviewing the

applications for probable cause and considering other

relevant factors under § 2518(3). The limiting and

deterrent features of the statute would be lost. Con-

gress surely did not intend to allow this.

Except to the extent, if at all, that there may be sub-

stantial rather than literal compliance with the stat-

ute, the statutory scheme does not allow a “no preju-

2 No court is empowered to consider after the fact whether the

wiretap was proper in terms of balancing the conflicting interests

of privacy and law enforcement, as the application court is em-

powered to do under § 2518(4), discussed infra. Thus the necessity

for proper and informed decision on that question before the fact

looms larger in significance.

24a

dice” or “error without injury” approach. The statute

recognizes the right of privacy of one using telephone

communications and makes wiretapping a felony ex-

cept for statutorily prescribed exceptions, 18 U.S.C.

§§ 2511(1)(a) and (b) and 2518. One whose privacy has

been invaded by an action felonious if not excepted by

statute may not be denied suppression on the ground

that he really has not been hurt very much.

With respect to good faith, a governmental pure

heart does not validate an otherwise invalid wiretap

any more than it would a private person’s erroneous

but good faith belief in the legality of his wiretap ofa

neighbor or competitor. Even if the government is to

be given greater deference, I have difficuity under-

standing what constitutes good faith in this context.

It is obvious that if the government is not required to

name a person with respect to whom it has probable

cause, then it does not act in bad faith in not naming

him. As employed by the majority the phrase “good |

faith,” amorphous and undefined, is not a tool of

analysis but merely a palliative. Ithas no relevance to

whether the function of the statute — judicial super-

vision of executive invasions of individual privacy —

has been served.

Since I reject the arguments by which the majority

3 This is wholly different from the good faith referred to in § 2520,

which goes to reliance on a district judge's order, a specific and

well-defined concept of good faith unlike that offered by the ma-

jority here. Moreover, the good faith there protects government

employees from severe after-the-fact sanctions for human errors

to which their work particularly exposes them: here it is being

used to undercut the before-the-fact protections sought to be

provided by the statute. Taken together they empower the very

abuses, under color of law and protected from punishment, which

this act was designed to prevent.

oe

te Mere arene ont eres ee

tata: ae eens

25a

resolve this case, I must consider the question of what

triggers the naming requirement of § 2518(1)(b)(iv).

Originally I thought that I would join my fellow dis-

senters, who have taken a stand on United States v.

Kahn, 415 U.S. at 155, 94 S.Ct. at 984, 39 L.Ed.2d at 237,

and United States v. Bernstein, 509 F.2d at 1001 —

1002.3" See the dissent from the panel opinion, 507 F.2d

1368, 1372, 1373, adopted by the en banc minority. On

further reflection I have concluded that I cannot join

them in that position. At the most Kahn only says that

if the government does not have probable cause to

believe a person is committing the crime being in-

vestigated then the government need not name that

person under § 2518(1)(b)(iv),* 415 U.S. at 155, 94 S.Ct.

at 984, 39 L.Ed.2d at 237. Ido not read this tu. .ecide the

converse proposition that if the government does have

probable cause it must name the person. We must then

look to the statute to determine whether Congress in-

dicated more definitely whom it wanted named in

wiretap applications.

Steering between the Scylla of a stifling ad-

ministrative burden and the Charybdis of unchecked

executive power, I would require the government to

name ail those individuals “against whom the inter-

ception was directed,” as that phrase is used in the def-

inition of aggrieved person in § 2510(11).5 This def-

inition is keyed to the standing and substantive rights

3a See also United States v. Donovan, 513 F.2d at 341.

4 Ithink that § 2518(3) poses a distinct naming requirement, see

infra.

5 The important details of who must carry exactly what burden of

proof must be left to the district courts to work out through prac-

tical experience.

26a

given in § 2518(10)(a) and reflecting a congressional

concern for protecting the interests of those subjected

to government investigations.

I do not see how the naming requirement can be any

narrower.® AsI have already pointed out, to permit the

government to conduct an investigation by wire-

tapping without ever disclosing to a court the persons

it hopes to hear and ultimately convict makes mince-

meat of the statutory system. This could subject to

intentional, repeated, unsupervised and unpunish-

able’ invasions of privacy any person who talks by

telephone with persons — only one per wiretap would

be necessary under the majority's approach — against

whom the government is able to make some showing

of probable cause. The essence of the § 2518(1)(e) re-

quirement of disclosure to the application court of

prior wiretaps is to prevent such activity. It cannot be

prevented unless the government is required to ap-

prise that court of the identity of the persons at whom

investigation and wiretap are directed.®

If one is to move toward a broader reading of the

naming requirement, I see no stopping point short of

probable cause. For the reasons noted above I think

6 Whatever bearing some of the language in Kahn may have on

this point, I think it is sufficient to say that the individual in that

case whose conversation was overheard was not under investiga-

— — that the government made a convincing showing to that

effect.

7 By reason of § 2520.

8 The target-naming requirement would cut off more severe

abuses. by judicial supervision where the persons are named, and

by the Sanctions of §§ 2511(1) and 2520 where they are not named

The good faith defense provided in § 2520 would be unavailable

where the naming requirement is clear and the failure to name is

egregious. notwithstanding the presence of a § 2518(3) order.

ee eee

27a

such a requirement would be too broad because of the

administrative burdens it would place on law enforce-

ment agencies.

The approach which I have taken meshes neatly

with the application-and-order procedure under

which all wiretaps are to be conducted. The statute

posits that courts should supervise law enforcement

agencies’ wiretap activities. Wiretaps are of course a

powerful investigative tool, but the concomitant in-

vasions of privacy necessarily occurring must be

weighed against the investigative convenience. The

ultimate decision-maker is the federal] district court.

Judicial supervision of wiretapping begins when a

law enforcement agency applies to a court for a wire-

tap order. Section 2518(1) requires the application to

disclose authorization for the application under

§§ 2516(1) or (2), the phone to be tapped, the crime

believed to be committed, the name of the suspect, a

statement that other investigative means have been

exhausted or would not be productive, and prior wire-

taps of the persons named. The next subsection au-

thorizes the judge to “require the applicant to furnish

additional testimony or documentary evidence in sup-

port of the application,” § 2518(2). The judge who must

weigh the competing values of privacy and efficient

law enforcement is thus empowered to obtain infor-

mation pertinent to those factors from the only party

before it in these ex parte proceedings. The separate

authorization of § 2518(2) would be redundant and

superfluous if it reached no more than is already cov-

ered by § 2518(1)(b), since the judge could always

refuse to issue an order until the law enforcement

agency had satisfactorily complied with that subsec-

tion.

28a

Section 2518(2) is an invitation to the judge receiv-

ing the application to plumb the scope and purpose of

the government's investigation. It authorizes him to

inquire into whatever other purposes the government

agency might have, into possible and suspected

wrongdoers not yet the subject of probable cause

beliefs, and into other collateral matters which,

although not required by the bare application re-

quirements of § 2518(1)(b), the court might consider in

deciding whether to grant the order.

The judge's duty to weigh these collateral and com-

peting factors is contained in the next subsection,

§ 2518(3), which does not require, but only authorizes,

issuance of a wiretap order after the appropriate find-

ings of probable cause — “the judge may enter an ex

parte order... if the judge determines on the basis of

the facts submitted by the applicant that... there is

probable cause for belief that an individual is com-

mitting ... a particular offense” and that a wiretap

will disclose pertinent communications, along with

other necessary findings (emphasis added).2 The

judge has discretion not to issue a wiretap order even

if he is satisfied that a showing of probable cause has

been made. The authorization to require additional in-

formation in § 2518(2) read in conjunction with this

discretion suggests a broad grant of power to the

courts to oversee governmental wiretapping.

In the instant case, I would remand to the District

Court for a hearing on whether Anderson, Baxter and

9 Compare § 2518(10)(a), which refers to a presumption of il-

legality “if the motion [to suppress] is granted ...” The con-

ditional “if” here could go to a finding of grounds for suppression,

as well as to judicial discretion. But there is no such ambiguity in

§ 2518(3), which must include discretion.

29a

Sanders were targets of the government's investiga-

tion when the relevant wiretap application was made,

that is, whether the wiretaps were directed against

them, taking due account of whether the government

can reasonably be believed not to be investigating

these persons in light of the information it had already

collected against them.

APPENDIX C

UNITED STATEE of America,

Plaintiff-Appellee,

versus

Billy Cecil DOOLITTLE, William Augustus Sanders,

Jr.. Ernest Massod Union, Julian Wells Whited, Frank

Joseph Masterana, Cliff Anderson, Darnice T.

Malloway, and William E. Baxter,

Defendants-Appellants.

No. 72-3263.

United States Court of Appeals,

Fifth Circuit.

April 7, 1975.

Appeal from the United States District Court for the

Middle District of Georgia, William A. Bootle, Judge,

341 F.Supp. 163.

30a

ON PETITIONS FOR REHEARING

AND PETITIONS FOR REHEARING EN BANC

(Opinion February 14, 1975, 5Cir., 1975,507 F.2d 1368).

Before BROWN, Chief Judge, and WISDOM, GEWIN,

BELL, THORNBERRY, COLEMAN, GOLDBERG,

AINSWORTH, GODBOLD, DYER, SIMPSON,

MORGAN, CLARK, RONEY andGEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having re-

quested a poll on the applications for rehearing en

banc and a majority of the judges in active service

having voted in favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the

Court en banc with oral argument on a date hereafter

to be fixed. The Clerk will specify a briefing schedule

for the filing of supplemental briefs.

3la

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1974

No. 72-3263

D. C. Docket No. CR 8815

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BILLY CECIL DOOLITTLE, WILLIAM AUGUSTUS

SANDERS, JR., ERNEST MASSOD UNION, JULIAN

WELLS WHITED, FRANK JOSEPH MASTERANA,

CLIFF ANDERSON, DARNICE T. MALLOWAY, and

WILLIAM E. BAXTER,

Defendants-Appellants.

Appeals from the United States District Court for the

Middle District of Georgia

Before BROWN, Chief Judge, and WISDOM, GEWIN,

BELL, THORNBERRY, COLEMAN, GOLDBERG,

AINSWORTH, GODBOLD, DYER, SIMPSON,

CLARK, RONEY and GEE, Circuit Judges.*

* Circuit Judge Morgan did not participate in the decision of this

case.

32a

JUDGMENT ON REHEARING EN BANC

This cause came on to be heard on defendants-

appellants’ petitions for rehearing en banc and was

argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby affirmed by the Court en banc.

September 2, 1975

BROWN, Chief Judge, and WISDOM, THORNBERRY,

GOLDBERG and SIMPSON, Circuit Judges, dis-

sent from the affirmance of the convictions of

Anderson, Baxter and Sanders.

GODBOLD, Circuit Judge, dissenting.

ISSUED AS MANDATE: