# Petition — Anderson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2119%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 905 ## Text ( ‘ 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 eo ites kedsenen enue 1 STATEMENT OF JURISDICTION ................ 2 QUBSTION PRRIBGEINEED .cccccscccccccccscccccees 2 ED Sic cicusa secconccsdedssoeud 3 STATEMENT OF THE CASE Proceedings and Disposition in the Court DET sUxesunébsalewdwennshes Gscees 05 baens beeeeds 4 ee ew cewhs du eaneeed concent 6 Basis for Federal Jurisdiction in Trial DE ck ssnuunkna ees chiadvanbacdeneb ivnds be wane 8 REASONS ,FOR ALLOWANCE OF THE DET 5 ish edede bude uwensandehene aebaseeee soe ued 9 EE > pcboceseneenwhehanuebiexdsdsdeva diane 9 EE dc ucungendcesnedescthuneetnsesdhuus 13 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 OG GRGRGE CATES FT, BGS vo cccccicccocccvcess 29a 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: aa TO ol ae a ~ | SRE eI a aCn ann AR ree 5.8 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 Ns 62k Gini CDKAASEAO SECEDE EOEN KO 9 ee ED vcccccuseecesctasdecuessecens 10 I un4 4.6 ohawineeesdeedesnkeneeseetinkas 9 ie teat ge nck edeeueNeiecekusemewe 2 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: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2119%3A1. Public record. Not legal advice.