Appendix — Korman v. United States

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APPENDIX A

In re UNITED STATES of America, Petitioner.

No. 520, Docket 93-3074.

United States Court of Appeals,

Second Circuit.

Argued Sept. 3, 1993.

Decided Nov. 23, 1993.

Before: FEINBERG, CARDAMONE and ALTIMARI,

Circuit Judges.

FEINBERG, Circuit Judge:

The United States petitions under the All Writs Act, 28

U.S.C. § 1651, and Rule 21 of the Federal Rules of Appel-

late Procedure for a writ of mandamus to the United States

District Court for the Eastern District of New York, Edward

R. Korman, J. The petition requests a determination of the

authority of a district court to delegate to a federal magistrate

judge the power to review applications by law enforcement

Officials for orders authorizing electronic eavesdropping

pursuant to Title II of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. §§ 2510-2521 (Title I). The

petition requests, in the alternative, an order directing

respondent Judge Korman to review such applications

personally. For the reasons set forth below, we grant

mandamus and order respondent Judge Korman not to

delegate review of Title III applications to federal magistrate

judges and to review personally an application now pending.

I. Background

In February 1992, respondent Judge Korman was serving

in the Miscellaneous Part of the district court, where he was

responsible for the review of applications for Title III orders.

By an opinion and order dated February 14, 1992, respondent

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announced his intention to refer all such applications to

United States magistrate judges. See In re United States

Attorney, 784 F.Supp. 1019, 1028 (E.D.N.Y.1992). At the

request of the United States, however, Judge Korman stayed

implementation of his order until October 10, 1992' and

signed the then pending Title III application of the United

States Attorney for the Eastern District of New York. The

United States then petitioned this court for mandamus review

of Judge Korman’s order. This court denied the petition in

an order dated March 23, 1993. Upon the United States’

motion for clarification, the order was modified on June 14,

1993 to state that the petition was denied because no applica-

tion had been referred to a magistrate.

On June 30, 1993, Judge Korman referred another applica-

tion by the United States Attorney to a magistrate judge. The

United States now seeks mandamus review of this order.

This court accepted briefs from the parties and heard oral

argument.’

II. Availability of Mandamus

This court’s order of March 23, 1993, as modified June

14, 1993, denied petitioner’s earlier mandamus petition

because there was no wiretap application then pending before

a magistrate judge. Because such an order is now pending,

the issue has become ripe for review.

Mandamus is an extraordinary remedy that this court does

not grant lightly:

' This was the next date on which respondent expected to serve

in the Miscellaneous Part.

> Because the issues were fully briefed at the time of the prior

application for mandamus, the parties resubmitted and relied upon

those briefs.

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the petitioner must show (1) the presence of a novel and

significant question of law; (2) the inadequacy of other

available remedies; and (3) the presence of a legal

issue whose resolution will aid in the administration of

justice.

In re United States, 903 F.2d 88, 89 (2d Cir. 1990) (citing In

re Von Bulow, 828 F.2d 94, 97-100 (2d Cir. 1987)). We find

that the petition by the United States meets these stringent

criteria.

First, the case presents a novel and significant issue.

Respondent appears to be the only judge in this circuit, if not

in the nation, to delegate the review of Title [II orders to a

federal magistrate judge. As for significance, this court has

recognized that “the scope of a Magistrate’s authority is a

significant issue in federal criminal litigation.” In re United

States, 903 F.2d at 89. Moreover, the disposition of applica-

tions for wiretapping orders implicates serious issues of

privacy under the Fourth Amendment.

Second, petitioner has no alternative remedies capable of

effectively protecting its substantial interests. Electronic

surveillance involves major criminal investigations and

requires a significant expenditure of government resources.

Petitioner thus has a strong interest in ensuring the admissibil-

ity of evidence it gathers by electronic surveillance. Suppres-

sion on the ground that surveillance was authorized by an

invalid Title M1 order would result in a significant waste of

government resources. Furthermore, the government as

parens patriae has an interest in avoiding illegal invasions of

its citizens’ privacy.

Moreover, because of the unusual procedural posture of

this proceeding, petitioner has no other adequate remedy. If

petitioner is unable to obtain review of the basic legal issue

now, presumably either the pending Title [II application or

another one referred by respondent to a magistrate in the

future will be approved by a magistrate and petitioner will

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proceed with a criminal investigation. If an indictment

results, the defendant, of course, would have the right to

move to suppress any evidence obtained through the wiretap.

Petitioner would then be placed in the impossible situation of

either agreeing with defendant that the wiretap was not

properly authorized or of taking a legal position that it

believes is incorrect. Cf. In re United States, 903 F.2d 88.

Finally, resolution of this issue will aid in the administra-

tion of justice. Mandamus is appropriate “when the appellate

court is convinced that resolution of an important, undecided

issue will forestall future error in trial courts, eliminate

uncertainty and add importantly to the efficient administration

of justice.” In re Von Bulow, 828 F.2d at 99 (quoting

Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524

(D.C.Cir.1975)). In this case, mandamus will eliminate

uncertainty as to the delegation of Title II review, thus

avoiding future challenges to wiretapping orders approved by

magistrate judges, which may require retrial or the suppres-

sion of evidence.

Il. The Merits

We turn now to the merits of the case. Whether district

judges may delegate the review of Title III orders to magis-

trate judges depends ultimately upon the congressional intent

expressed in Title II and in the Federal Magistrates’ Act,

Pub.L. No. 90-578, 82 Stat. 1107 (codified as amended at 28

U.S.C. §§ 631-639). In analyzing this issue, however,

another statute is highly relevant, as will be seen below.‘

> In 1990, the name of the office of United States magistrate was

changed to “United States magistrate judge.” This opinion uses the

terms interchangeably.

* The parties have not raised, nor do we address, any constitu-

tional issues involved in the delegation of Article III judges’ duties

to magistrate judges. We note that the Supreme Court has avoided

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A. Relevant Statutes

The 90th Congress enacted Title III in June 1968. The

statute requires law enforcement officers seeking permission

to intercept wire, oral or electronic communications to apply

in writing to a “judge of competent jurisdiction.” 18 U.S.C.

§ 2518(1). The statutory definition of that term includes only

“a judge of a United States district court or a United States

court of appeals” and “a judge of any court of general

criminal jurisdiction of a State,” who is authorized by state

law to enter wiretapping orders. 18 U.S.C. § 2510(9). Title

III contains a number of provisions designed to tightly control

the use of this prosecutorial tool and to safeguard the privacy

interests of those subjected to a wiretap. See generally

United States v. Giordano, 416 U.S. 505, 514-23, 94 S.Ct.

1820, 1826-30, 40 L.Ed.2d 341 (1974). For example, an

application for a wiretap order must be authorized by the

Attorney General or her designees, see 18 U.S.C. § 2516(1),

and must be made in writing, under oath, with a statement of

the applicant’s authority. See 18 U.S.C. § 2518(1)(a). It

must also include the identity of the law enforcement officer

making the application and provide a complete statement of

the facts relied upon. See 18 U.S.C. §§ 2518(1)(a)-(e).

Furthermore, the right to intercept is confined to seeking

evidence of only certain specified serious offenses. See 18

U.S.C. § 2516(1)(a)-(0). In addition, there are stringent

restrictions on the use and disclosure of the evidence ob-

tained. The statute specifies safeguards relating to recording,

minimizing and sealing the interceptions, as well as notice

requirements to intercepted parties. 18 U.S.C. § 2518(8)(a),

(b), (d). Violations of 18 U.S.C. §§ 2510 et seq. are

constitutional issues in this area by construing the Federal Magis-

trates Act narrowly “in light of its structure and purpose.” Gomez

v. United States, 490 U.S. 858, 864, 109 S.Ct. 2237, 2241, 104

L.Ed.2d 923 (1989) (citing cases).

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punishable by imprisonment of up to five years and a fine of

$10,000. 18 U.S.C. §§ 2511(4)(a), 2512(1).

The Federal Magistrates Act was enacted in October 1968

during the same session in which Congress enacted Title I.

The statute replaced the office of United States commissioner

with that of federal magistrate and gave the latter all the

powers theretofore exercised by the former. See Pub.L. No.

90- 578, § 636(a)(1) (codified at 28 U.S.C. § 636(a)(1)). In

addition, the statute specifically listed further powers of the

newly created magistrates. See id. at §§ 636(a)(2) and (3)

(codified as amended at 28 U.S.C. §§ 636(a)(2) and (3)).

Commissioners had not been authorized to issue Title I

orders, and the list enumerating powers of magistrates did not

include any reference to the Title [I wiretap approval

procedure Congress had just created a few months before.

The statute did, however, authorize a district court to assign

to magistrates “such additional duties as are not inconsistent

with the Constitution and laws of the United States,” id. at §

636(b), including but not restricted to “assistance to a district

judge in the conduct of pretrial ... proceedings in ... criminal

actions.” Id. at § 636(b)(2).

In 1976, the Magistrates Act was amended to expand the

powers of magistrates. Section 636(b) was changed to read,

in relevant part, as follows:

(b)(1) Notwithstanding any provision of law to the con-

trary--

(A) a judge may designate a magistrate to hear and

determine any pretrial matter pending before the court,

except a motion for injunctive relief, for judgment on

the pleadings, for summary judgment, to dismiss or

quash an indictment or information made by the defen-

dant, to suppress evidence in a criminal case, to dismiss

or to permit maintenance of a class action, to dismiss

for failure to state a claim upon which relief can be

granted, and to involuntarily dismiss an action.

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(3) A magistrate may be assigned such additional duties as

are not inconsistent with the Constitution and laws of the

United States. (emphasis supplied).

Pub.L. No. 94-577, 90 Stat. 2729 (codified as amended at 28

U.S.C. § 636(b)).

Finally, in 1986, Congress passed the Electronic Commu-

nications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat.

1848 (codified as amended at 18 U.S.C. §§ 3121-3127) (the

Privacy Act). This Act amended Title III by requiring law

enforcement officers wishing to employ “pen register” or

“trap and trace” monitoring devices’ to seek permission from

a “court of competent jurisdiction.” See 18 U.S.C. §

3122(a). Unlike the definition of “judge of competent

jurisdiction” in the wiretapping provisions of Title If, the

definition of “court of competent jurisdiction” in the Privacy

Act specifically includes federal magistrates. See 18 U.S.C.

§ 3127(2)(A).

In contrast to the provisions of Title III regarding wiretaps,

a pen register or trap and trace application does not require

authorization from the Attorney General or her designee.

The application need only identify the applicant and the

investigating law enforcement agency and certify that “the

information likely to be obtained is relevant to an ongoing

criminal investigation being conducted by that agency.” 18

U.S.C. § 3122(b)(2). The provision was not intended to

require independent judicial review of relevance; rather, the

reviewing court need only verify the completeness of the

certification. See S.Rep. No. 541, 99th Cong., 2d Sess. 47

(1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3601.

Moreover, the maximum prison term for violation of the pen

> These devices are used to identify numbers dialed to or from

a telephone, but do not allow eavesdropping on conversations.

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register or trap and trace provisions is only one year, 18

U.S.C. § 3121(c), compared to the five-year prison term

authorized for violation of the wiretap provisions of Title II.

18 U.S.C. § 2511(4)(a).

B. Discussion

Petitioner United States argues that magistrates have not

been authorized to approve wiretapping orders, either by Title

III or by the Magistrates Act, as first enacted in 1968, or by

the 1976 amendment of § 636(b). Petitioner is aware, of

course, that as far back as 1968, district courts could assign

to a magistrate “such additional duties as are not inconsistent

with the Constitution and laws of the United States,” includ-

ing assisting the judge in pretrial proceedings in criminal

cases, and that since 1976 such assignment has been permissi-

ble “in any pretrial matter” (with specified exceptions not

applicable here), “notwithstanding any provision of law to the

contrary.” Petitioner argues, however, that this general

language does not allow the delegation to magistrates at issue

here. Petitioner emphasizes that Title II, as initially passed

in 1968, specifically gave the power to approve wiretap

applications only to federal district judges, federal circuit

judges and state judges empowered by state statute to issue

eavesdropping orders and that the 1986 Privacy Act amended

the definition section of Title II, 18 U.S.C. § 2510, in many

respects but not with respect to the issue raised here.

These are strong arguments. The Privacy Act explicitly

authorized magistrates to approve pen register and trap and

trace methods of surveillance, but failed to amend Title I

specifically to authorize magistrates to approve wiretapping

orders. If Congress in 1986 had believed magistrates to be

“judge[s] of competent jurisdiction,” as the term is used in

Title MI, 18 U.S.C. § 2510(9), who are authorized to issue

wiretapping orders, then the Privacy Act could have empow-

ered magistrates to issue pen register orders with a simple

reference back to § 2510(9). Instead, however, the 1986

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Privacy Act specifies persons empowered to authorize pen

register orders by reference to a separate “court of competent

jurisdiction” section, which, unlike § 2510(9), specifically

includes magistrates. See 18 U.S.C. § 3127(2)(A).

In response, respondent argues primarily that the 1976

amendment to the Magistrates Act authorized a district judge

to delegate “any pretrial matter”® (with specified exceptions

not applicable here) to a magistrate, “notwithstanding any

provision to the contrary.” Respondent points to the House

Report on the 1976 amendment, which stated that the

language just quoted “is intended to overcome any problem

which may be caused by the fact that scattered throughout the

code are statutes which refer to ‘the judge’ or ‘the court’ ”

and that therefore “the permissible assignment of additional

duties to a magistrate shall be governed by the revised section

636(b), ‘notwithstanding any provision of law’ referring to

‘judge’ or ‘court’.” H.R.Rep. No. 1609, 94th Cong., 2d

sess. 9 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6169.

With regard to the 1986 Privacy Act, respondent claims that

it specifically authorized magistrates to approve pen registers

and not wiretapping because the 1986 Act, unlike the original

Title III, post-dated both the Magistrates Act and the amend-

6 While we assume arguendo that the review of Title Ill

wiretapping orders is a “pretrial matter” within the meaning of 28

U.S.C. § 636(b)(1)(A), it is at least arguable that this is not so

because the review may occur long before any proceeding in court.

This, of course, may also be true of applications for a search

warrant, which magistrates are undoubtedly authorized to issue.

See Fed.R.Crim.P. 41(a). But that power does not stem from the

1976 amendment of the Magistrates Act, upon which respondent so

heavily relies. Rather, search warrant authority resided with

United States commissioners, the predecessors of federal magis-

trates, since before the 1968 Magistrates Act. See S.Rep. No.

1097, 90th Cong., 2d sess. (1968), reprinted in 1968

U.S.C.C.A.N. 2112, 2179 (citing former 18 U.S.C. § 3041

(1964)).

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ment of that Act in 1976. The Privacy Act’s amendments in

1986 of the definitions in Title III did not authorize magis-

trates to issue wiretapping orders, respondent argues, because

the 1976 Magistrates Act had already done so.

These are substantial arguments, particularly the former

which relies on the 1976 amendment to the Magistrates Act.

Yet, we are left with the strong conviction that Title III is sui

generis and that any Congressional expansion of the list of

those officers authorized to approve wiretaps would be

specific rather than general and indirect. It must be remem-

bered that Congress passed Title II in 1968 only after “a

long battle between those who would have altogether prohibit-

ed wiretaps and the material obtained thereby and those who

wanted to allow the government to use wiretap material in

criminal prosecutions.” United States v. Gerena, 869 F.2d

82, 84 (2d Cir.1989) (citing National Broadcasting Co. v.

United States Dept. of Justice, 735 F.2d 51, 53 (2d

Cir.1984)). Title I was not enacted simply to facilitate

electronic surveillance by law enforcement agencies. To the

contrary, this court has noted that because “Congress recog-

nized that wiretapping could be highly intrusive of privacy,”

the statute placed strict limits on the use of wiretapping.

Gerena, 869 F.2d at 84; see also National Broadcasting Co. .,

735 F.2d at 53 (citing S.Rep. No. 1097, 90th Cong., 2d Sess.

67, 161-65, reprinted in 1968 U.S.C.C.A.N. 2112, 2154-56,

2222-27). Title MI was intended to “properly protect the

privacy of oral and wire communications, while providing a

uniform basis for authorizing their interception in appropriate

cases.” United States v. Bianco, 998 F.2d 1112, 1120 (2d

Cir. 1993).

In view of this background, the interaction between Title

II and the 1986 Privacy Act supports our view that magis-

trates have not been authorized to approve wiretap applica-

tions under Title MI. It is significant that the Privacy Act

changed the definition section of Title II in many respects,

but did not alter § 2510(9), which grants the power to

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approve wiretaps only to federal Article II judges and state

judges having general criminal jurisdiction and state statutory

authorization. It is also significant that the 1986 Act specifi-

cally authorized magistrates only to approve pen register and

trap and trace monitoring, invasions of privacy far less

intrusive than wiretapping. There is a sharp contrast between

the stringent controls over wiretap orders (including the

severity of punishment enforcing them) and the much less

onerous conditions for obtaining pen register and trap and

trace authorization. We believe that Congress in 1986 saw

pen register and trap and trace monitoring, which magistrates

may authorize, to be qualitatively different from wiretapping,

which only an Article III federal judge or a state court judge

of general criminal jurisdiction may authorize.

Respondent relies heavily on this court’s decision in United

States vy. Diaz, 922 F.2d 998 (2d Cir.1990), cert. denied, ---

U.S. ---, 111 $.Ct. 2035, 114 L.Ed.2d 119 (1991), in support

of the view that the order under attack here is valid. In that

case, we interpreted the “notwithstanding” language in the

1976 amendment of the Magistrates Act as implicitly autho-

rizing magistrates to empanel grand juries, even though the

Jury Selection and Service Act, 28 U.S.C. § 1865(a), gives

that authority only to district judges. Diaz, 922 F.2d at 1002.

Diaz, however, did not involve the important privacy interests

affected by Title II.

The purpose and legislative history of Title Ill suggest

caution in allowing delegation of authority conferred by that

statute. The Supreme Court relied on such a view of Title I

in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820,

40 L.Ed.2d 341 (1974), a case strikingly similar to the case

at hand. Giordano involved 18 U.S.C. § 2516(1), which then

provided that “the Attorney General, or any Assistant

Attorney General specially designated by the Attorney

General, may authorize an application” for a wiretap order.

The Court held that § 2516 did not allow the Attorney

General to delegate the power to authorize applications to the

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Attorney General’s Executive Assistant, even though the

Attorney General was authorized by a different statute to

delegate any of her functions to “‘any other officer, employ-

ee, or agency of the Department of Justice.’” Giordano, 416

U.S. at 513, 94 S.Ct. at 1826 (quoting 28 U.S.C. § 510).

Just as Title II empowers “a judge of competent jurisdic-

tion” to review applications, 18 U.S.C. § 2518(1), it empow-

ers the Attorney General to authorize applications. See 18

U.S.C. § 2516(1). And, just as 28 U.S.C. § 636(b), the

1976 amendment of the Magistrates Act, allows district

judges to delegate “any pretrial matter” and “additional

duties,” 28 U.S.C. § 510 allows the Attorney General to

delegate any of her functions. The Giordano Court held,

nonetheless, that even though Title III included no “precise

language forbidding delegation ...[,} § 2516(1), fairly read,

was intended to limit the power to authorize wiretap applica-

tions to the Attorney General himself and to any Assistant

Attorney General he might designate.” 416 U.S. at 514, 94

S.Ct. at 1826 (emphasis supplied).

The Giordano Court based its holding on the purpose and

the legislative history of Title I, fairly read. The same

approach also supports the view that Congress wanted to limit

the power to review applications to specified judicial offi-

cers.’ The purpose of Title II was to outlaw wiretapping

except in certain situations, as indicated by the strict restric-

tions on the gathering and use of wiretap evidence. See id.

” Respondent has attempted to distinguish Giordano on the

ground that the Attorney General’s power to delegate authority

under 28 U.S.C. § 510 predated Title III, while the Magistrates Act

post-dated Title III. See Jn re U.S. Attorney, 784 F.Supp. at 1022.

Thus, it could be argued that § 510 could not empower the

Attorney General to delegate her Title III authority, because when

§ 510 was enacted, she had no Title III authority. Giordano,

however, did not rely upon, or even mention, the timing of § 510.

Rather, it relied entirely on a close examination of Title III.

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at 514-16, 94 S.Ct. at 1826-27. Those statutory restrictions

should be observed in the absence of specific Congressional

direction to the contrary.

The present case also stands in contrast to our recent

decision in Austin v. Healey, 5 F.3d 598 (2d Cir.1993), in

which we approved a court rule automatically delegating

extradition proceedings to magistrate judges. That case

involved neither privacy issues nor judicial inference as to

Congressional intent, for Congress has specifically stated that

magistrates may hear extradition proceedings if “’authorized

so to do by a court of the United States.’” Jd., at 601

(quoting 18 U.S.C. § 3184). Furthermore, before the

Magistrates Act, Congress had authorized extradition proceed-

ings, unlike wiretap applications, to be heard by United States

commissioners, id., at 603, so that the Magistrates Act in that

respect merely codified prior practice.

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It may also be argued that since magistrates have the

authority to issue search warrants, which obviously intrude

upon privacy interests, Congress must have intended in the

1976 amendments to the Magistrates Act to allow magistrates

to approve wiretap applications. But here, too, United States

commissioners were empowered to issue search warrants even

before Title II was enacted, see supra n. 6, so that no such

inference is justifiable. Indeed, the Senate Report on the

legislation that became Title III specifically pointed out that

the prior practice of commissioners with regard to such

warrants had been “too permissive for the interception of

wire or oral communications,” and that the power to autho-

rize electronic surveillance should be more limited. S.Rep.

No. 1097, reprinted in 1968 U.S.C.C.A.N. 2112, 2179.

Our dissenting brother asserts that a wiretap is not “more

intrusive on personal privacy” than a judicially-authorized

search. We disagree. A wiretap may capture the intimate

details of a person’s life over an extended period of time

without that person’s knowledge. In contrast, a search

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pursuant to a warrant, which has long been a recognized tool

of the prosecutor, occurs just once and, by its nature, puts the

person searched on notice of the violation of privacy. A

wiretap is like a continuous film of events in your home,

secretly recorded over a period of weeks or months. A

search is like a surprise snapshot of your home taken in your

presence. The former is obviously a far greater invasion of

privacy than the latter. The lengthy battle in the 1960's

leading to enactment of Title II is proof enough that Con-

gress considered the comparatively new technique of electron-

ic eavesdropping to be far more intrusive than the familiar

search pursuant to a warrant.

Finally, we do not doubt that the 1976 amendment of the

Magistrates Act was intended, as respondent urges, to

overcome a series of court decisions that had construed that

Act narrowly to limit the “additional duties” that could be

delegated to magistrates. H.R.Rep. No. 1609, reprinted in

1976 U.S.C.C.A.N. 6162, 6164-67, 6173. But one can

search the House Report in vain for disapproval of a decision

refusing to allow a magistrate to hear wiretap applications.

Indeed, apparently no one thought that the power existed,

since even respondent concedes that no district judge has ever

delegated the review of a Title III application to a magistrate

before.

In enacting the 1968 Magistrates Act, the 1976 amendment

to that Act and the 1986 Privacy Act amendments to Title I,

Congress had multiple opportunities to add magistrate judges

specifically to the category in Title III of “judge of competent

jurisdiction,” but in each instance did not do so. We are

aware of the growing burdens placed upon the district courts

and appreciate the valuable assistance furnished to the judicial

system by magistrate judges. But in enacting Title I,

Congress showed great concern for protecting individual

privacy against the vast potential for intrusion posed by

wiretapping. In sum, we are unwilling, in the absence of

explicit statutory direction, to expansively interpret Title III's

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definition of a “judge of competent jurisdiction,” 18 U.S.C.

§ 2510(9), to include magistrate judges.

Mandamus granted.

CARDAMONE, Circuit Judge, dissenting:

The majority concludes that the Federal Magistrates Act

does not authorize district courts to refer electronic eaves-

dropping applications, made under Title III of the Omnibus

Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521

(Title III), to a United States magistrate judge. In effect, the

majority asks “why” should the magistrate judges have this

authority. Were Congress asked this question, and it is that

body’s legislative purpose which purports to be our guide, its

answer would be, I am persuaded, “why not?” While the

issue presents a close question of statutory interpretation,

clearly the statutory scheme, the genealogy of Title Il

amendments, and the legislative history of the Magistrates

Act, Pub.L. No. 90-578, 82 Stat. 1107 (codified as amended

at 18 U.S.C. §§ 3401-02; 28 U.S.C. §§ 631- 39 (1988)),

make plain the legislative aim to experiment in the broader

use of magistrate judges in order to free Article III judges to

perform their adjudicatory function. For reasons stated in a

moment, I therefore respectfully dissent.

DISCUSSION

I

It is plain that Congress was deeply concerned about

individual privacy rights as reflected in the debates leading up

to the enactment of Title III in June 1968. Once Congress

decided to authorize this intrusion through the use of a

wiretap, the issue of privacy was resolved and the only

question that remained was which judicial officers would have

the authority to order a wiretap. It is our differing views on

the answer to that question that prompts this dissent.

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The statute, 18 U.S.C. § 2518(1), requires all wiretap

applications to be submitted in writing to a “judge of compe-

tent jurisdiction,” defined as: “(a) a judge of a United States

district court or a United States court of appeals; and (b) a

judge of any court of general criminal jurisdiction of a State

who is authorized by a statute of that State to enter [wiretap]

orders.” 18 U.S.C. § 25109).

At the time § 2510(9) was drafted and enacted, Congress

could not have included magistrates in the definition because

magistrates did not then exist. Commissioners, who were not

required to be lawyers, were their ostensible equivalent, and

Congress did not deem commissioners capable of judiciously

reviewing wiretap applications. See S.Rep. No. 1097, 90th

Cong.2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112,

2179. In fact, Congress did not believe commissioners were

competent in the duties they were authorized to perform, such

as review of applications for and authorization of search and

arrest warrants. See H.R.Rep. No. 1629, 90th Cong., 2d

Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4252,

4255-56.

In response to this perceived inadequacy, four months after

the passage of Title II, Congress.enacted in October 1968 the

Federal Magistrates Act. With the creation of the office of

the United States magistrate, Congress abolished the office of

commissioner. Magistrates were vested with all the authority

previously held by commissioners, along with greatly

expanded duties designed to “increase[ ] the overall efficiency

of the Federal judiciary, while at the same time providing a

higher standard of justice at the point where many individuals

first come into contact with the courts.” H.R.Rep. No. 1629,

90th Cong., 2d Sess. (1968), reprinted in 1968

U.S.C.C.A.N. 4252, 4257.

To address the deficiencies of the commissioners, Congress

required, inter alia, magistrates to be members of the bar

wherever possible. See 28 U.S.C. § 631(b)(1). This was

17a

prompted, in part, to insure “both the accused and the legal

system of an independent determination of the question of

probable cause.” Jd. at 4256. Congress obviously could

have modified § 2510(9) and expressly extended to magis-

trates the authority to authorize Title I] wiretaps. Perhaps it

| was thought unnecessary in light of the Magistrates Act itself.

No time need be spent speculating on this because in 1976

Congress made clear how it desired magistrates to be used in

our judicial system.

¢

4

i

3

5

Il

As the legislative history of the 1976 amendments to the

Magistrates Act demonstrates, Congress was troubled by a

series of court decisions that construed the Magistrate’s Act

narrowly, stifling the greater use of magistrates by the district

courts. See H.R.Rep. No. 1609, 94th Cong., 2d Sess. 6

(1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6166. The

amendments accordingly reorganized the Magistrates Act in

an attempt to clarify and further define the additional duties

that may be assigned a magistrate. See Gomez v. United

States, 490 U.S. 858, 867, 109 S.Ct. 2237, 2243, 104

L.Ed.2d 923 (1989). The revised § 636(b) reads, in relevant

part, as follows:

(b)(1) Notwithstanding any provision of law to the con-

trary--

(A) a judge may designate a magistrate to hear and

determine any pretrial matter pending before the court,

except a motion for injunctive relief, for judgment on the

pleadings, for summary judgment, to dismiss or quash an

indictment or information made by the defendant, to

suppress evidence in a criminal case, to dismiss or to

permit maintenance of a class action, to dismiss for failure

to state a claim upon which relief can be granted, and to

involuntarily dismiss an action.

18a

(3) A magistrate may be assigned such additional duties

as are not inconsistent with the Constitution and laws of

the United States. (Emphasis added).

For purposes of the instant appeal, the two underlined

clauses of § 636(b)--the “pretrial matters” and the “additional

duties” clause--are in my view the source of authority

permitting a magistrate judge to review a wiretap application

and authorize its issuance. Of equal importance is the

Statute’s lead-in sentence, that reads: “Notwithstanding any

provision of law to the contrary--.” Its significance will be

addressed first.

This sentence modifies the pretrial matters and additional

duties clauses, and was included in order to resolve issues

like that presented on this appeal, that is, whether a district

judge may validly refer to a magistrate judge a task statutorily

assigned to the district judge. As both the Senate and House

Judiciary Committees explained:

The initial sentence of the revised section uses the phrase

“notwithstanding any provision of law to the contrary--”.

This language is intended to overcome any problem which

may be caused by the fact that scattered throughout the

code are statutes which refer to “the judge” or “the

court.” It is not feasible for the Congress to change each

of these terms to read “the judge or a magistrate.” It is,

therefore, intended that the permissible assignment of

additional duties to a magistrate shall be governed by the

revised section 636(b), “notwithstanding any provision of

law” referring to “judge” or “court.”

S.Rep. No. 625, 94th Cong., 2d Sess. 7 (1976); H.R.Rep.

No. 1609, 94th Cong., 2d Sess. 9 (1976), reprinted in 1976

U.S.C.C.A.N. 6162, 6169. Given this plain expression of

legislative purpose, the language of § 2510(9) is modified by

§ 636(b) so as to allow a district judge to refer a Title I

application to a magistrate judge, provided the referral is

\

19a

encompassed by a specific authorization in the remainder of

§ 636(b).

Authority for such reference, it seems to me, falls within

the orbit of either the pretrial matters clause or the additional

duties clause because overall “[t]he Act is designed to relieve

the district courts of certain subordinate duties that often

distract district courts from more important matters.” Peretz

v. United States, --- U.S. ---, 111 S.Ct. 2661, 2668, 115

L.Ed.2d 808 (1991); see also H.R.Rep. No. 94-1609, 94th

Cong., 2d Sess. 7 (1976), reprinted in 1976 U.S.C.C.A.N.

6162, 6167 (magistrate is to “assist the district judge in a

variety of pretrial and preliminary matters thereby facilitating

the ultimate and final exercise of the adjudicatory function at

the trial of the case”); S.Rep. No. 92-1065, 92nd Cong., 2d

Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3350, 3351

(magistrates “render valuable assistance to the judges of the

district courts, thereby freeing the time of those judges for the

actual trial of cases”); H.R.Rep. No. 1629, 90th Cong., 2d

Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4252, 4255

(purpose of Act is “to cull from the ever-growing workload

of the U.S. district courts matters that are more desirably

performed by a lower tier of judicial officers”). The answer

to the question now raised hinges therefore on whether the

referral is a pretrial matter.

A. Pretrial Matters

Under the pretrial matters clause, a magistrate judge may

be assigned to “hear and determine any pretrial matter.” 18

U.S.C. § 636(b)(1)(A). The district court retains the supervi-

sory power to review the magistrate’s determination upon a

showing that it “is clearly erroneous or contrary to law.”

Id.; see also Gomez, 490 U.S. at 868, 109 S.Ct. at 2244.

The amendment to the pretrial matters clause aimed to

“clarify the broad authority to refer ‘any pretrial matter.” ”

H.R.Rep. No. 1609, 94th Cong. , 2d Sess. 9 (1976), reprinted

in 1976 U.S.C.C.A.N. 6162, 6169. Only eight categories of

20a

dispositive pretrial motions, which might otherwise fall within

the broad range of pretrial matters that could be referred,

were excepted. See 18 U.S.C. § 636(b)(1)(A).

Referral of a Title [I wiretap application is not one of the

enumerated exceptions. An ancient maxim of statutory

interpretation seems particularly apt in such a circumstance:

“Inclusio unius est exclusio alterius” (The inclusion of one is

the exclusion of another). Thus, it logically follows that

since the eight exceptions to the pretrial matters clause did

not include Title III wiretap referrals, it was not one of those

categories of cases excepted from the broad range of cases

that could properly be referred. See United States v. Diaz,

922 F.2d 998, 1002 (2d Cir.1990). Absent an affirmative

reason to believe the 94th Congress had a different purpose,

we should not judicially repeal the authorization to refer

effectuated by Congress in 1968 and in 1976.

It is of more than slight significance that arrest warrants

and search warrants were among those criminal pretrial

matters enumerated in the Committee Report that set forth the

types of pretrial matters included within this provision. See

Gomez, 490 U.S. at 868, n. 16, 109 S.Ct. at 2244 n. 16;

H.R.Rep. No. 1609, 94th Cong., 2d Sess. 7, 9 (1976),

reprinted in 1976 U.S.C.C.A.N. 6162, 6167, 6169. The ex

parte nature of such individual applications is wholly analo-

gous to the authorization for a wiretap. The notion that a

wiretap is somehow more intrusive on personal privacy than

an arrest or search warrant, and therefore only to be autho-

rized by an Article III judge, blinks reality.

Concededly, those subject to an arrest or search warrant

have notice at the time the intrusion occurs, while the wiretap

is secret and without notice. But the knowledge imparted

comes about because of the nature of the intrusion, not

because there is a view that it constitutes a greater or lesser

invasion of an individual’s right to privacy than does a

wiretap. It might well be said that the execution of an arrest

21a

warrant not only deprives the individual of his or her right to

privacy, it also denies to the individual the fundamental right

to liberty, making that privacy intrusion greater than that

imposed by a wiretap.

Yet, distinctions in Fourth Amendment jurisprudence based

on differing levels of intrusiveness are disfavored by the

Supreme Court. See Arizona v. Hicks, 480 U.S. 321, 325,

107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987) (finding that

“(a] search is a search,” regardless of its level of intrusive-

ness). This is because parsing out invasions of privacy

tramples on the bright line the Court has attempted to

establish in Fourth Amendment law. Hence, privacy cannot

serve as a reason to deny a reference to a magistrate judge.

Moreover, and perhaps most importantly, applications for

arrest and search warrants regularly call on magistrate judges

to make the same probable cause determination that is at the

heart of all Title III application decisions. See 18 U.S.C. §

2518(3)(a)(b)-(c). Affording district judges the right to

delegate this authority to magistrate judges does not therefore

construe the pretrial matters clause so as “to include responsi-

bilities of far greater importance than the specified duties

assigned to magistrates.” Peretz, --- U.S. at ---, 111 S.Ct. at

2667; see also Gomez, 490 U.S. at 864, 109 S.Ct. at 2241

(“Any additional duties performed pursuant to a general

authorization in the statute reasonably should bear some

relation to the specified duties.”). As such, there is no

principled reason to infer that a wiretap application should not

fall within the scope of the pretrial matters clause, while an

arrest and search warrant should. ;

Congress, as noted, has ruled that arrest and search

warrants are pretrial matters within the meaning of the clause.

See Gomez, 490 U.S. at 868, n. 16, 109 S.Ct. at 2244 n. 16;

H.R.Rep. No. 1609, 94th Cong., 2d Sess. 7, 9 (1976),

reprinted in 1976 U.S.C.C.A.N. 6162, 6167, 6169. The

comparative analysis is not destroyed simply because these

22a

matters are also embraced by § 636(a)(1), which authorizes

magistrates to assume all the duties previously held by

commissioners. It bears repeating that commissioners were

roundly criticized for their handling of those matters, which

in itself was a major impetus for the creation of magistrates

in the first place.

B. Additional Duties

Neither the Magistrates Act nor the cases interpreting the

Act are altogether clear on the scope of the pretrial matters

clause or the delineation between the pretrial matters and the

additional duties clauses. Notwithstanding this murkiness, if

the assignment of a Title II application is not a pretrial

matter, then it must fall within the catch-all “additional

duties” clause.

The government suggests that because no other judge has

ever referred an application to a magistrate judge, Judge

Korman should be mandamused not to refer such because in

so doing he acts beyond his power. This contention, here

upheld by my respected colleagues, thwarts Congress’

purpose when it included the additional duties clause in the

1976 amendments to the Magistrates Act. Congress sought to

encourage experimentation so as to relieve district judges of

time-consuming matters that do not require an Article I

judge, and that distract such judges from the trying of cases.

As the House Judiciary Committee explained:

This subsection enables the district courts to continue

innovative experimentations in the use of this judicial

officer. At the same time, placing this authorization in an

entirely separate subsection emphasizes that it is not

restricted in any way by any other specific grant of

authority to magistrates.

Under this subsection, the district courts would remain

free to experiment in the assignment of other duties to

23a

magistrates which may not necessarily be included in the

broad category of “pretrial matters”.

If district judges are willing to experiment with the

assignment to magistrates of other functions in aid of the

business of the courts, there will be increased time avail-

able to judges for the careful and unhurried performance

of their vital and traditional adjudicatory duties, and a

consequent benefit to both efficiency and the quality of

justice in the Federal courts.

H.R.Rep. No. 1609, 94th Cong., 2d Sess. 12 (1976),

reprinted in 1976 U.S.C.C.A.N. 6162, 6172.

Judge Korman describes the burden review of Title I

applications places on already overworked district courts.

ai tg it lO leans Goa pelts

Specifically, applications for Title II orders are accompa-

nied by long and prolix affidavits. Review of these

applications is often time consuming and the judicial

officer’s task does not end with his or her signature on the

order. After the wire interception is in place, there are

periodic reports that require the judicial officer to monitor

its progress. Moreover, where relevant conversations are

seized, the judicial officer will usually be faced with

equally lengthy and prolix renewal applications.

In re U.S. Attorney, 784 F.Supp. 1019, 1027

(E.D.N.Y.1992). Refusing to allow referral of these applica-

tions to magistrate judges who are intended to be an extra set

of eyes, ears and hands and who already regularly perform

similar tasks--many of which require the same determination

of whether or not probable cause exists--only undermines the

common goal of ensuring thorough monitoring of Title Hl

applications.

)

24a

The Supreme Court has stamped its imprimatur on a broad

interpretation of the additional duties clause consistent with

Congress’ plan.

The generality of the category of “additional duties”

indicates that Congress intended to give federal judges

significant leeway to experiment with possible improve-

ments in the efficiency of the judicial process that had not

already been tried or even foreseen. If Congress had

intended strictly to limit these additional duties to functions

considered in committee hearings or debates, presumably

it would have included in the statute a bill of particulars

rather than a broad residuary clause.

Peretz, --- U.S. at ---, 111 S.Ct. at 2667. The only limita-

tions placed on this method of testing for improvements in

judicial efficiency was expressed by the Court in Peretz.

First, just as with a supplemental duty under the pretrial

matters clause, the delegation of another duty pursuant to the

“additional duties” clause cannot “include responsibilities of

far greater importance than the specified duties assigned to

magistrates.” Peretz, --- U.S. at ---, 111 S.Ct. at 2667. For

the reasons discussed earlier, this limitation is not implicated.

Second, the delegated duty cannot be “inconsistent with the

Constitution and laws of the United States.” 28 U.S.C. §

636(b)(3). This language cannot preclude a district court’s

referral of a Title II application to a magistrate simply

because of the language of 18 U.S.C. § 2510(9). Some

affirmative indication of congressional purpose to prohibit use

of a magistrate is required or some conflict with the Constitu-

tion must be shown. Any other reading of the statute would

render the lead-in language of § 636(b), “notwithstanding any

provision of law,” superfluous, contravening the norms of

statutory construction. See Freytag v. Commissioner, --- U.S.

Pennsylvania Public Welfare Dept. v. Davenport, 495 U.S.

552, 563, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990).

em le ea alee cy le, eta

25a

For example, as the district court in the instant case points

out, a jury verdict must under Fed.R.Crim.P. 31 be returned

to “a judge.” But the legislative history of § 636(b) teaches

that the additional duties clause permits magistrates to take a

jury verdict “where the trial judge is unavailable.” See Jn re

U.S. Attorney, 784 F.Supp. at 1026, n. 10. Hence, the word

“judge” may not be read consistent with Congress’ scheme to

exclude “magistrate judge,” absent some affirmative indica-

tion from the legislature.

Further, the interplay of the Supreme Court’s opinions in

Peretz (allowing district courts to assign jury voir dire in a

criminal case to magistrates when the parties consent) and

Gomez (not allowing the foregoing where the parties did not

consent) is particularly instructive respecting the scope of the

additional duties clause. In Peretz, the Court said its holding

in Gomez was predicated on concern that a magistrate’s

conducting of jury voir dire without a defendant’s consent

involved the potential deprivation of a significant constitution-

al right or privilege. See Peretz, --- U.S. at ---, 111 S.Ct. at

2666.

In the instant case, there are no constitutional concerns.

The Fourth Amendment requires that the probable cause

determination be made by a “neutral and detached magis-

trate.” See Coolidge v. New Hampshire, 403 U.S. 443, 453,

91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971). Obviously, the

Fourth Amendment is not violated by the delegation of a

wiretap application to a magistrate judge. Because the Court

found no constitutional impairment in Peretz, it “therefore

attach{ed] far less importance ... to the fact that Congress did

not focus on jury selection as a possible additional duty for

magistrates.” --- U.S. at ---, 111 S.Ct. at 2667. As in

Peretz, the absence here of any constitutional difficulty

obviates the need to find unambiguous evidence of Congress’

design to include Title I applications among the additional

duties a district court can refer to a magistrate. See id.

26a

Il

The government urges that analysis of Congress’ intent in

this case be guided by the Electronic Communications Privacy

Act of 1986, Pub.L. No. 99- 508, 100 Stat. 1848 (codified as

amended at 18 U.S.C. §§ 3121-3127 (1988)). This argument

fails for several reasons.

To begin with, courts have an unflagging duty to read the

laws of the United States in accord with what judges perceive

is Congress’ scheme, not as judges might prefer. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 447, 107 S.Ct. 1207, 1221,

94 L.Ed.2d 434 (1987); Federal Election Comm’n v. Demo-

cratic Senatorial Campaign Comm., 454 U.S. 27, 32, 102

S.Ct. 38, 42, 70 L.Ed.2d 23 (1981). Thus, we must be

guided by what the 94th Congress had in mind when it

enacted the 1976 amendments to the Magistrates Act and, to

a lesser extent, the plan the 90th Congress had when it

enacted Title II and, later in that same session, the original

Magistrates Act. To say that the 94th Congress’ intent was

that Title II applications should not be referred to magistrate

judges pursuant to the Magistrates Act because the 99th

Congress did not amend 18 U.S.C. §§ 2518(1) and 2510(9)

is a weak reed to rely on when construing such comprehen-

sive statutes. That is to say, “it is well settled that ‘the views

of a subsequent Congress form a hazardous basis for inferring

the intent of an earlier one.’” Russello v. United States, 464

U.S. 16, 26, 104 S.Ct. 296, 302, 78 L.Ed.2d 17 (1983)

(quoting Jefferson County Pharmaceutical Ass’n v. Abbot

Labs. , 460 U.S. 150, 165 n. 27, 103 S.Ct. 1011, 1021 n. 27,

74 L.Ed.2d 882 (1983)).

Further, even assuming arguendo that we should in some

sense be guided by what Congress did in 1986, its actions can

reasonably be read so as not to conflict with the conclusion

that Title II applications can be referred to a magistrate. The

1976 amendments and its inclusion of the “notwithstanding

any law to the contrary” language was reflective in effect.

27a

Congress modified all those provisions that referred to

“judge” or “court,” as it made perfectly plain. Included

within that sweep was § 2510(9), as it defined judge of

competent jurisdiction in all the then-existing provisions of

Title M1.

; Next, when Congress later included the pen register

provisions in 1981, it could not simply have said applications

| must be submitted to a “judge of competent jurisdiction” and

referenced § 2510(9), as the government argues. Doing so

would have rendered the pen register provisions ambiguous.

The reflective 1976 amendments could not logically be read

to modify later-enacted provisions of Title II. As a conse-

quence, a new term had to be used with a different defini-

tional section, which included magistrate. Insofar as §

2510(9) pertained to Title II wiretap applications, there was

therefore no need to change or amend it; Congress had

already changed it in 1976.

In disputing this proposition the government’s reliance on

Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341

(1974), is misplaced. Because the Attorney General’s power

to delegate authority under 28 U.S.C. § 510 predated Title

Ill, logically § 510 could not modify the unambiguous

language of Title III so as to allow the Attorney General to

delegate the power to authorize wiretap applications. In

analyzing this issue the Supreme Court would focus on Title

III because as the later-enacted statute, it was controlling. In

contrast, the expanding provisions in both the 1976 amend-

ments and the original Magistrates Act succeed Title II, and

as such they control. Hence, the provisions of the 1981

Electronic Communications Act really shed no new light on

the controlling statutes. It violates a cardinal rule of con-

struction to view the pen register act of 1986 as repealing the

Magistrates Act by implication.

Finally, the government declares that the contrast between

the stringent controls placed on wiretap orders versus the

28a

much less onerous requirements for pen register authoriza-

tions indicates that Congress thought wiretap orders required

the approval of a district judge. It is equally plausible to

believe Congress recognized that the use of a pen re-

gister--compared to a wiretap--did not implicate the Fourth

Amendment. See Smith v. Maryland, 442 U.S. 735, 745-46,

99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

CONCLUSION

For the reasons stated, I vote to deny the petition for a

writ of mandamus.

29a

APPENDIX B

In re Applications of UNITED STATES ATTORNEY FOR

ORDERS PURSUANT TO TITLE Il OF THE OMNIBUS

CRIME CONTROL AND SAFE STREETS ACT OF 1968

Misc. No. 92-43.

United States District Court,

E.D. New York.

Feb. 14, 1992.

MEMORANDUM AND ORDER

KORMAN, District Judge.

Pursuant to an administrative order of Chief Judge Platt,

I am serving in the Miscellaneous Part from February 10,

1992 to February 23, 1992. One of the duties of the judge

assigned to the Miscellaneous Part is the review of applica-

tions for electronic eavesdropping orders pursuant to Title Il

of the Omnibus Crime Control and Safe Streets Act of 1968

(“Title IM”), 18 U.S.C. §§ 2510-21 (1988). Because it is my

intention to refer such applications to a United States magis-

trate judge, I address here the issue whether the referral of a

Title II application to a United States magistrate judge is

authorized by the Federal Magistrates Act.

DISCUSSION

The Federal Magistrates Act of 1968, Pub.L. No. 90-578,

82 Stat. 1107, codified as amended at 18 U.S.C. §§

3401-3402: 28 U.S.C. §§ 631-39 (1988 & Supp. I 1989),

abolished the office of United States commissioner and

replaced it with a judicial officer serving directly below the

level of the district court. Congress imposed significant

requirements to ensure the competency and impartiality of

30a

these judicial officers and it gave them significantly--indeed,

dramatically--more responsibility than it had previously

conferred on United States commissioners.

Congress conferred on magistrates not only all powers

formerly exercised by commissioners, it also conferred on

magistrates the power to try minor offenses when all parties

consent, and to perform such additional duties assigned by the

= district court as are “not inconsistent with the Constitution

and laws of the United States.” Federal Magistrates Act of

1968 § 636(b), Pub.L. No. 90-578, 82 Stat. 1108, 1113

(1968). The “additional duties” could include, but were not

restricted to

(1) service as a special master in an appropriate civil

action, pursuant to the applicable provisions of this

title and the Federal Rules of Civil Procedure for the

United States district courts;

(2) assistance to a district judge in the conduct of pretrial

or discovery proceedings in civil or criminal actions;

and

(3) preliminary review of applications for post-trial relief

made by individuals convicted of criminal offenses,

and submission of a report and recommendations to

facilitate the decision of the district judge having

jurisdiction over the case as to whether there should

be a hearing.

Id.

The experience under former section 636(b) demonstrated

that magistrates were fulfilling their intended function of

assisting “the district judge to the end that the district court

judge could have more time to preside at the trial of cases.”

H.R.Rep. No. 1609, 94th Cong., 2nd Sess. 6 (1976),

reprinted in 1976 U.S.C.C.A.N. 6162, 6166. Congress was

disturbed, however, by a series of cases that construed former

section 636 in a manner that limited the “additional duties”

A

3la

that could be conferred on magistrates. See e.g. Wingo v.

Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879

(1974); 7.P.O. v. McMillen, 460 F.2d 348 (7th Cir. 1972);

Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972).

Accordingly, former section 636(b) was rewritten in 1976 to

restate and clarify “the Congressional intention that the

magistrate should be a judicial officer who, not only in his

own right but also under general supervision of the court,

shall serve as an officer of the court in disposing of minor

and petty criminal offenses, in the preliminary or pretrial

processing of both criminal and civil cases, and in hearing

dispositive motions and evidentiary hearings when assigned to

the magistrate by a judge of the court.” H.R.Rep. No. 1609,

94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.Code

Cong. & Admin. News 6162, 6165.

There are two clauses of the revised section 636(b) that are

particularly relevant to the issue whether an application for an

eavesdropping order may be referred to a United States

magistrate judge: The “pretrial matters” clause and the

“additional duties” clause. An analysis of the language and

legislative history of these two clauses, which were enacted

after the Omnibus Crime Control and Safe Streets Act of

1968, provides compelling support for referral of these

applications to a United States magistrate judge.

A. The “Pretrial Matters” Clause

The “pretrial matters” clause of the Federal Magistrates

Act provides that, “[nJotwithstanding any provision of law to

the contrary ... any pretrial matter pending before the court,”

except for certain dispositive motions, may be referred to a

United States magistrate judge. 28 U.S.C. § 636(b)(1)(A).

Because this clause is applicable to ex parte proceedings that

take place prior to the commencement of a criminal case,

United States v. Diaz, 922 F.2d 998 (2d Cir.1990), the

principal objection to the referral of an application for a Title

III order to a United States magistrate judge derives from the

32a

fact that these judicial officers are not among the judges of

competent jurisdiction in whom Congress explicitly vested the

authority to issue such orders--namely, judges of the United

States district courts and the courts of appeals.’ 18 U.S.C.

§§ 2510(9)(a) and 2516(1).

Of some relevance to this objection is United Siates v.

Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341

(1974). There at issue was 18 U.S.C. § 2516(1), as criginal-

ly enacted, which empowered the “Attorney General or any

Assistant Attorney General specially designated by the

Attorney Generai” to “authorize an application to a federal

judge of competent jurisdiction for an order authorizing or

approving the interception of wire or oral communications”

by federal investigative agencies. Omnibus Crime Control

and Safe Streets Act of 1968 § 2516(1), Pub.L. No. 90-351,

82 Stat. 197, 216 (1968).* Relying on 28 U.S.C. § 510,

which authorized the delegation of “any function of the

Attorney General” to “any other officer” or “employee” of

the Department of Justice, the Solicitor General argued that

' Section 2516(1) of Title III provides:

The Attorney General, Deputy Attorney General, Associate

Attorney General, any acting Assistant Attorney General, or any

Deputy Assistant Attorney General in the Criminal Division

specially designated by the Attorney General, may authorize an

application to a Federal judge of competent jurisdiction for, and

such judge may grant ... an order authorizing or approving the

interception of wire or oral communications ...

18 U.S.C. § 2516(1). Section 2510(9)(a) defines “federal judge of

competent jurisdiction” as “a judge of the United States district

court or a United States court of appeals.”

? In 1986, Congress amended § 2516(1) to expand the list of

officials to whom the Attorney General could delegate the authority

to make applications for eavesdropping orders. See note 1, supra.

33a

the power to authorize a Title II application could be

delegated by the Attorney General to a subordinate other than

an Assistant Attorney General. In rejecting this argument,

the Supreme Court wrote:

Despite § 510, Congress does not always contemplate that

the duties assigned to the Attorney General may be freely

delegated. Under the Civil Rights Act of 1968, for

instance, certain prosecutions are authorized only on the

certification of the Attorney General or the Deputy Attor-

ney General, “which function of certification may not be

delegated.” 18 U.S.C. § 245(a)(1). Equally precise

language forbidding delegation was not employed in the

legislation before us; but we think § 2516(1), fairly read,

was intended to limit the power to authorize wiretap

applications to the Attorney General himself and to any

Assistant Attorney General he might designate. This

interpretation of the statute is also strongly supported by its

purpose and legislative history.

416 U.S. at 514, 94 S.Ct. at 1826.

The conclusion the Supreme Court reached in Giordano

could arguably apply to the question whether the authority to

issue eavesdropping orders, which Title III vests in judges of

the United States District Court and the United States Court

of Appeals, may be delegated to United States magistrate

judges. Such an extension of the holding in Giordano,

however, could not be reconciled with two critical aspects of

the Federal Magistrates Act. Unlike 28 U.S.C. § 510, the

Federal Magistrates Act was adopted after the enactment of

Title III and it contains a clause that permits the delegation of

specified authority vested in district court judges notwith-

standing any existing law to the contrary. More significantly,

a careful analysis of the legislative history demonstrates that

the failure of Congress to include United States magistrate

judges among the judges authorized to issue Title III orders

does not provide a sufficient basis for inferring that Congress

34a

intended to preclude the delegation of that responsibility

pursuant to the subsequently enacted Federal Magistrates Act.

The Organized Crime Control and Safe Streets Act of 1968

and the Federal Magistrates Act of 1968 were enacted by the

90th Congress. A common thread running through both is

the finding of Congress that defects in the commissioner

system had undermined the competence, integrity and

professionalism of the United States commissioners. Com-

missioners were paid under a fee system according to the

number and nature of the matters they handled; many served

only on a part-time basis; one third of commissioners were

nonlawyers; most commissioners were required to use their

Own resources to meet the expenses of their office; commis-

sioners received little guidance in performing their duties;

and commissioners were grossly underpaid and were subject

to removal without cause, making it difficult to attract

qualified applicants. H.R.Rep. No. 1629, 90th Cong., 2d

Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4252,

4255-56; McCabe, The Federal Magistrates Act of 1979, 16

Harv.J.Legis. 343, 347 (1979).

The sorry state of the commissioner system was summed

up by Senator Tydings during the course of the debates

leading to the passage of the Federal Magistrates Act:

One’s first impression, Mr. President, is that it is certainly

less than a happy situation that a person who has not been

admitted to the bar--and who therefore, has no trial

experience, and probably little if any familiarity with the

Federal Rules of Criminal Procedure or with the rules of

evidence--should be permitted to discharge responsibilities

that call for the exercise of trained legal judgment. The

decisions that commissioners must routinely make often

involve some of the most difficult points of constitutional

law, which the best lawyers and judges are hard pressed to

apply correctly.

Ee

35a

Senator Tydings continued that, when reviewing an applica-

tion for a search or arrest warrant, “a U.S. commissioner

may be the only judicial officer in a position to insure that

individual rights are not disregarded by overzealous prosecu-

tors. Yet... it appears in many instances the action of the

Commissioner may be little more than a rubber stamp of the

application of the complaining officer.” Subsequently,

testimony taken by the Senate Judiciary Subcommittee on

Improvements in Judicial Machinery established that “Tijn

many districts search warrants and arrest warrants are handled

on a mass production basis with no independent judicial

determination being made as to whether probable cause exists

for the issuance of a warrant.” Memorandum Prepared by the

Staff of the Subcomm. on Improvements in Judicial Machin-

ery, April 28, 1966, reprinted in 1966-67 Senate Hearings at

9.

The Omnibus Crime Control and Safe Streets Act ad-

dressed this problem by specifically providing that “a judge

of the United States district court or a United States court of

appeals” could entertain applications for Title II orders made

by federal law enforcement officers. In explaining this

clause, the Senate Judiciary Committee observed that,

although “existing practice permitted United States Commis-

sioners and city mayors to issue search warrants,” that

practice was “too permissive for the interception of wire or

oral communications.” S.Rep. No. 1097, 90th Cong., 2d

Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2179.

The Federal Magistrates Act, which was enacted shortly

thereafter, addressed the problem more directly by abolishing

> Remarks of Hon. Joseph D. Tydings, on the Floor of the

Senate, October 15, 1965, reprinted in Federal Magistrates Act:

Hearings Before the Subcomm. on Improvements in Judicial

Machinery of the Senate Comm. on the Judiciary, 89th Cong., 2d

Sess. & 90th Cong., Ist Sess. 6, 7 (1966 & 1967) [hereinafter

“1966-67 Senate Hearings” }.

36a

the office of United States commissioner and creating the

office of United States magistrate. Echoing the sentiments

voiced in the legislative history of Title TI, the House

Judiciary Committee explained that one of its primary

concerns was that “[c]ommissioners in many districts

grant[ed] search and arrest warrant applications perfunctorily ,

thereby depriving both the accused and the legal system of an

independent determination of the question of probable cause.”

H.R.Rep. No. 1629, 90th Cong., 2d Sess. (1968), reprinted

in 1968 U.S.C.C.A.N. 4252, 4256.

To rectify this problem, Congress created the office of

United States magistrate, thereby increasing “the overall

efficiency of the federal judiciary while at the same time

providing a higher standard of justice at the point where many

individuals first come into contact with the courts.”

H.R.Rep. No. 1629, 90th Cong., 2d Sess., reprinted in 1968

U.S.C.C.A.N. 4252, 4257.4 These judicial officers are

appointed by a majority of the judges of the district court for

a term of eight years, and may be removed only for cause. 28

U.S.C. §§ 631(e) and (i). Congress not only set certain

minimum qualifications, it also expressly provided that a

United States magistrate be selected pursuant to standards and

procedures promulgated by the Judicial Conference of the

United States. Such standards and procedures must “contain

provision for public notice of all vacancies in magistrate

positions and for the establishment by the district courts of

merit selection panels, composed of residents of individual

judicial districts, to assist the courts in identifying and

recommending persons who are best qualified to fill such

positions.” 28 U.S.C. § 631(b)(5). The standards promul-

gated by the Judicial Conference require that the selection of

* The possibility of transferring the commissioners’ responsibili-

ties to district court judges was considered and rejected by the

Subcommittee on Improvements in Judicial Machinery. 1966-67

Senate Hearings at 238-39 (Remarks of Senator Tydings).

37a

United States magistrate judges be made from a list of

nominees (up to five for each vacancy) who have been found

by the merit selection panel to “possess the same types of

personal and professional qualities expected of district

judges. ”°

The Federal Magistrate Act also abandons the fee system

and provides that United States magistrates may not engage

in the practice of law or any other business “inconsistent with

the expeditious, proper and impartial performance of their

duties as judicial officers.” 28 U.S.C. § 632(a).° United

States magistrates today receive a salary close to that of

district court judges, which cannot be reduced during their

term in office, 28 U.S.C. § 634(a) and (b), and are provided

with law clerks to assist them in their work. Administrative

Office of the United States Courts, Legal Manual: United

States Magistrates § 1.10. Indeed, in 1990, Congress

changed the title of these judicial officers to “United States

magistrate judge” in order to “reflect more accurately the

responsibilities and duties of the office.” Judicial Improve-

ments Act of 1990 § 321, Pub.L. No. 101-650, 104 Stat.

5089, 5117 (1990); H.R.Rep. No. 734, 101st Cong., 2d

5 Administrative Office of the United States Courts, The

Selection and Appointment of United States Magistrates 10, 12-13

(1987). The procedure for reappointment requires the establish-

ment of a similar panel, which reviews the incumbent's perfor-

mance, considers comments from members of the bar and public,

and submits a recommendation to the district court. Jd. at 14-16.

¢ The Act discourages the use of part-time magistrates and

permits their appointment only where “employment of a full-time

magistrate would not be feasible or desirable.” 28 U.S.C. §

63(a)(3). Part-time magistrates, who are appointed to a four-year

term, are prohibited from serving “as counsel in any criminal

action in any court of the United States.” 28 U.S.C. § 632(b).

38a

Sess. 31 (1990), reprinted in 1990 U.S.C.C.A.N. 6802,

6877.

The lesson to be drawn from this legislative history is that

the referral of an eavesdropping application to a United States

magistrate judge does not implicate any of the concerns

underlying Title II’s facially restrictive definition of judges

who are competent to issue eavesdropping orders. The office

of United States commissioner, at which that definition was

directed, no longer exists; and the concerns about the

competence and professionalism of those serving as United

States commissioners do not apply to those serving as United

States magistrate judges. Indeed, United States magistrate

judges enjoy tenure, compensation and independence compa-

rable to that of many state judges who today issue orders

pursuant to Title II.’

Moreover, it is not material that, after it enacted the

Federal Magistrates Act, Congress failed to confer on United

States magistrate judges the authority to entertain a Title I

application. While Congress clearly contemplated that United

States magistrate judges would perform other functions that

were vested in United States district court judges, the

assumption was that these duties could be referred to a United

States magistrate judge if they came within the broad grant of

’ In New York State, Supreme Court Justices and County Court

Judges are authorized by Title III to issue eavesdropping orders.

18 U.S.C. § 251009); N.Y.Crim.Proc.Law § 700.05(4) (McKinney

1984). Supreme Court Justices are elected for 14 year terms,

N.Y.Const. Art. 6, § 6(c) (McKinney 1987), and County Court

Judges are elected for ten year terms, N.Y. County Law § 400(1)

(McKinney 1991). Their reelection depends on currying favor of

party leaders or the vagaries of the electoral process, and their

compensation is substantially less than that of United States

magistrate judges.

39a

delegable authority specified in 28 U.S.C. § 636(b).°

Indeed, Congress rewrote Section 636(b) in 1976 to overcome

a crabbed judicial construction of the Federal Magistrates Act

and to make plain its intent to override any inconsistency that

may derive from the fact that a delegable duty within the

scope of the clause is vested in a “judge” or a “court.” As

the Senate Judiciary Committee Report explained:

The initial sentence of the revised section uses the phrase

“notwithstanding any provision of law to the contrary--”.

This language is intended to overcome any problem which

may be caused by the fact that scattered throughout the

code are statutes which refer to “the judge” or “the

court.” It is not feasible for the Congress to change each

of those terms to read “the judge or a magistrate.” It is,

therefore, intended that the permissible assignment of

additional duties to a magistrate shall be governed by the

revised section 636(b), “notwithstanding any provision of

law” referring to “judge” or “court.”

S.Rep. No. 625, 94th Cong., 2d Sess. 7 (1976); H.R.Rep.

No. 1609, 94th Cong.2d Sess. 9 (1976), reprinted in 1976

U.S.C.C.A.N. 6162, 6169.

Particularly apposite here is the recent holding of the Court

of Appeals for the Second Circuit that the empaneling of a

grand jury may be referred to a United States magistrate

judge even though the Jury Selection Service Act confers such

authority only on “[t}he Chief Judge of the District Court, or

such other district court judge as the [the district's jury

* Congress did amend Fed.R.Crim.P. 41 to substitute United

States magistrate for United States commissioner as one of the

judicial officers authorized to issue search warrants. Federal

Magistrates Act of 1968 § 301, Pub.L. No. 90-578, 82 Stat. 1108,

1115 (1968). This contemporaneous amendment of Rule 41 was

necessitated by the fact that the Federal Magistrates Act abolished

the office of United States commissioner.

40a

selection] plan may provide....” 28 U.S.C. 1865(a) (1988).

United States v. Diaz, 922 F.2d at 1002. In an opinion by

Judge Kearse, the Court of Appeals held that “the apparent

limitation in the Jury Act is overridden by [the "pretrial

matters“ clause,] 28 U.S.C. § 636(b)(1)(A).” Jd. at 1002.

The “pretrial matters” clause, it will be recalled, provides

that “[njotwithstanding any provision of law to the contrary

... a judge may designate a magistrate to hear and determine

any pretrial matter pending before the court,” except for eight

specified dispositive motions. 28 U.S.C. § 636(b)(1)(A).

Because “[t]he selection and empaneling of a grand jury are

not among the tasks expressly excluded from this authoriza-

tion, and they plainly occur prior to any part of the trial,” the

Court of Appeals concluded that “[o]n its face ... §

636(b)(1)(A) appears to authorize delegation of the pretrial

functions of grand jury selection and empaneling to a magis-

trate.” Diaz, 922 F.2d at 1002.

The Court of Appeals then examined the legislative history

of section 636(b)(1)(A), which made no reference to the

delegation of such authority to a magistrate. Based on other

pretrial and preliminary matters that Congress clearly

contemplated could be referred to a United States magistrate

judge, the Court of Appeals found that it was unlikely that

Congress meant to withhold from that judicial officer the

authority to empanel grand juries. Diaz, 922 F.2d at 1004.

The same legislative history demonstrates that Congress

contemplated that the issuance of search warrants, among

other pre-indictment matters, would fall within the ambit of

the “pretrial matters clause.” See H.R.Rep. No. 1609, 94th

Cong. 2d Sess. 7, 9 (1976), reprinted in 1976 U.S.C.C.A.N.

6162, 6167-69.

While electronic eavesdropping is potentially more invasive

of privacy than ordinary searches and seizures, and while

Congress was unwilling to entrust to United States commis-

sioners the responsibility of determining whether either of

a

4la

these intrusions should take place, it is unlikely that Congress

intended that the same judicial officer it found competent to

issue a warrant to arrest a person, to ransack his house, and

seize his most private papers, be denied the authority to

entertain a motion for electronic eavesdropping upon the

referral of a district court judge. Under these circumstances,

there is no more reason here than in Diaz to deny full effect

to the overriding language of the “pretrial matters” clause.

B. The “Additional Duties” Clause

One of the 1976 amendments to section 636(b) created a

separate subsection providing that “a magistrate may be

assigned such additional duties as are not inconsistent with the

Constitution and the laws of the United States.” 28 U.S.C.

§ 636(b)(3). The House Judiciary Committee emphasized the

expansive nature of this “catchall” clause:

A similar provision is contained in the existing legislation.

This subsection enables the district courts to continue

innovative experimentation in the use of this judicial

officer. At the same time, placing this authorization in an

entirely separate subsection emphasizes that it is not

restricted in any way by any other specific grant of

authority to magistrates.

If district judges are willing to experiment with the

assignment to magistrates of other functions in aid of the

business of the courts, there will be increased time avail-

able to judges for the careful and unhurried performance

of their vital and traditional adjudicatory duties, and a

consequent benefit to both efficiency and the quality of

justice in the Federal courts.

H.R.Rep. No. 1609, 94th Cong. 2d Sess. 12 (1976), reprint-

ed in 1976 U.S.C.C.A.N. 6162, 6172; S.Rep. No. 625, 94th

Cong., 2d Sess. 10-11 (1976). This expansive expression of

congressional intent is echoed in a number of subsequent

42a

Supreme Court decisions. Most recent among these is Peretz

v. United States, --- U.S. ---, 111 S.Ct. 2661, 2671, 115

L.Ed.2d 808 (1991), in which it was held that “permitting a

magistrate to conduct the voir dire in a felony trial when the

defendant raises no objection is entirely faithful to the

congressional purpose in enacting and amending the Federal

Magistrates Act.” The Court added:

The generality of the category of “additional duties”

indicates that Congress intended to give federal judges

significant leeway to experiment with possible improve-

ments in the efficiency of the judicial process that had not

already been tried or even foreseen. If Congress had

intended strictly to limit these additional duties to functions

considered in the committee hearings or debates, presum-

ably it would have included in the statute a bill of particu-

lars rather than a broad residuary clause.

Id., 111 S.Ct. at 2667.’

There are two interrelated limitations on the “additional

duties” clause that distinguish it from the “pretrial matters”

clause. The first, which appears in the text of the clause, is

that the delegation of a duty not be “inconsistent” with the

laws of the United States. The second, which derives from

the gloss the Supreme Court has placed on the clause, is that

* Among the duties that have been referred to magistrates under

the “additional duties” clause are the review of social security cases

for report and recommendation to the district court judge, Mathews

v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), the

taking of a guilty plea, United States v. Khan, 774 F.Supp. 748

(E.D.N.Y.1991), the determination of a motion to quash a grand

jury subpoena, /n re Grand Jury Proceedings Dzikowich, 620

F.Supp. 521 (D.C. Wis. 1985), and the issuance of an order granting

immunity to a witness and compelling the witness to testify in the

grand jury. Jn re Grand Jury Appearance of Cummings, 615

F.Supp. 68 (D.C. Wis. 1985).

43a

the delegated duty not be of “far greater importance” than

specified duties that may be assigned to magistrates. Peretz,

111 S.Ct. at 2667.

The delegation of a Title III application to a United States

magistrate judge is not inconsistent with Title I merely

because the latter provides that judges of the United States

district courts may issue eavesdropping orders. Any case to

which the “additional duties” clause may be applicable will

also involve the delegation of some duty that is vested

initially in a judge. Accordingly, it would frustrate the intent

of Congress if a nonadjudicatory responsibility could not be

delegated to a United States magistrate judge merely because

that responsibility is specifically conferred on a district court

judge. Unless the language or legislative history clearly

indicates that Congress did not intend to authorize the

delegation of a particular duty, this circumstance alone should

not preclude delegation under the “additional duties”

clause." See United States v. Khan, 774 F.Supp. 748,

753-54 (E.D.N.Y.1991); In re Grand Jury Appearance of

Cummings, 615 F.Supp. at 71.

The preceding discussion has shown that the facially

restrictive definition of judges competent to issue Title I

orders was not written for the purpose of denying United

° This conclusion is implicit in the legislative history of section

636(b)(3). Specifically, the House Judiciary Committee suggested

that the additional duties clause would permit magistrates “to accept

returns of jury verdicts where the trial judge is unavailable,” even

though Fed.R.Crim.P. 31 provides that a jury verdict shall be

returned to “the judge” in open court, and Fed.R.Crim.P. 25

provides that, if a judge becomes disabled during the course of

trial, “any other judge regularly sitting in or assigned to the court

.. May proceed with and finish the trial.” See H.R.Rep. No. 1609

(1976), 94th Cong., 2d Sess. 12, reprinted in 1976 U.S.C.C.A.N.

6162, 6172; United States v. Arnoldt, 947 F.2d 1120, 1123 (4th

Cir.1991).

44a

States magistrate judges the authority to issue such orders.

Moreover, it is equally clear that the consideration of such

applications is not of far greater importance than the duty

these judicial officers perform in overseeing the procedural

mechanism that “is central to the Fourth Amend-

ment,”--namely, the antecedent determination whether a

search or arrest warrant should issue. Ohio ex rel. Eaton v.

Price, 364 U.S. 263, 272, 80 S.Ct. 1463, 1468, 4 L.Ed.2d

1708 (1960) (separate opinion of Brennan, J.).

The findings that must be made by a United States magis-

trate judge when issuing a search warrant differ only margin-

ally from those which must be made by a judicial officer who

issues an electronic eavesdropping order.'' Before issuing

an eavesdropping order, a judicial officer must determine that

there is probable cause to believe that incriminating conversa-

tions relating to certain specified offenses will be intercepted

and that comparable evidence cannot be obtained through the

use of other investigative procedures. 18 U.S.C. §

2518(3)(a), (b) and (c). Similar findings of fact must be

made by a United States magistrate judge before authorizing

the kinds of significant invasions of privacy for which the

Fourth Amendment requires a search warrant. A United

States magistrate judge must not only determine that there is

probable cause to believe that a crime has been committed

and that evidence of criminal activity will be found on the

premises to be searched, the magistrate also “must judge the

reasonableness of every warrant in light of the circumstances

" Cf. In re Grand Jury Proceedings Dzikowich, 620 F .Supp. at

524 (holding that a magistrate has authority to determine a claim of

illegal electronic surveillance brought pursuant to 18 U.S.C. §

3504, and noting that such determination is “similar to the

reviewing of documentation for search warrants in which magis-

trates engage on a regular basis.”); 18 U.S.C. §§ 3122(a) and

3127(2)(A) (1988) (authorizing a magistrate judge to order the

installation of pen registers and trap and trace devices).

Din ceenennmneeneneme

45a

of the particular case, carefully considering the description of

evidence sought, the situation of the premises, and the

position and interests of the owner or occupant.” Zurcher vy.

Stanford Daily, 436 U.S. 547, 570, 98 S.Ct. 1970, 1984, 56

L.Ed.2d 525 (1978) (Powell J., concurring).'*

Fed.R.Crim.P. 41 expressly singles out one such circum-

stance and requires a United States magistrate judge to

consider whether a requisite showing of cause has been made

to permit a search to be conducted during nighttime hours.

Moreover, where a search implicates First Amendment

values, special obligations devolve on the magistrate to ensure

that the requirements of the Fourth Amendment are applied

with “scrupulous exactitude,” Stanford v. Texas, 379 U.S.

476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965);

Zurcher, 436 U.S. at 564, 98 S.Ct. at 1980, and to consider

the First Amendment values at stake, “as well as the societal

interest in enforcing the criminal laws.” 436 U.S. at 571,

n.3, 98 S.Ct. at 1984, n.3 (Powell, J., concurring).

While the ultimate determination whether to issue a Title

Ill order or to permit its renewal requires judgments compa-

rable to those made in issuing search warrants, the burden of

considering these applications makes it a particularly appro-

priate duty to assign to United States magistrate judges.

Specifically, applications for Title I orders are accompanied

by long and prolix affidavits. Review of these applications is

often time consuming and the judicial officer’s task does not

end with his or her signature on the order. After the wire

interception is in place, there are periodic reports that require

the judicial officer to monitor its progress. Moreover, where

relevant conversations are seized, the judicial officer will

usually be faced with equally lengthy and prolix renewal

'* Justice Powell cast the deciding vote in Zurcher. The views

expressed in his concurring opinion, although somewhat more

explicit, are consistent with the majority opinion in which Justice

Powell joined.

46a

applications. The referral of these applications by district

court judges will plainly further the congressional objective

of making increased “time available to judges for the careful

and unhurried performance of their vital and traditional

adjudicatory duties,” and increase the “efficiency and the

quality of justice in the Federal courts.” H.R.Rep. No.

1609, 94th Cong. 2d Sess. 12 (1976), reprinted in 1976

U.S.C.C.A.N. 6162, 6172; S.Rep. No. 625, 94th Cong., 2d

Sess. 10-11 (1976).

The only remaining question presented is whether Article

III of the United States Constitution precludes authorization

of a wire interception by a magistrate. Recent Supreme

Court decisions have upheld the delegation of certain adjudi-

catory responsibilities to magistrates. United States v.

Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424

(1980) (motion to suppress evidence); Peretz v. United States,

--- U.S. ---, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) Gury

selection). These cases rested on the availability of de novo

review by the district court judge and, in Peretz, the parties’

consent. While de novo review by a United States district

court judge is available here,"* neither such review nor the

* In 1990, United States district court judges authorized 324

wire interceptions and granted 333 extensions. These figures have

been increasing consistently, primarily as a result of an increase in

drug investigations. Administrative Office of the United States

Courts, Report on Applications for Orders Authorizing or Approv-

ing the Interception of Wire, Oral, or Electronic Communications

1, 9 (1991).

‘* The United States Attorney may obtain review of a denial of

a Title Ill order by appealing to the district court judge who

referred the application to the United States magistrate judge. The

exhaustion of this process would not preclude an application to

another district court judge if the initial application was ultimately

denied. Of course, the ex parte nature of the proceeding precludes

pre-authorization review at the behest of the subject of the intercep-

47a

consent of the parties is necessary, because the authorization

of a wiretap falls within the category of nonadjudicatory

functions that need not be performed by an Article III judge.

See Mistretta v. United States, 488 U.S. 361, 389-90 n. 16,

109 S.Ct. 647, 663-64 n. 16, 102 L.Ed.2d 714 (1989) (noting

that the issuance of search warrants and the review of wiretap

applications are among the nonadjudicatory functions per-

formed by Article III judges).

An eavesdropping order is sought at an investigatory stage,

in a nonadversarial context. In reviewing a wiretap applica-

tion, a magistrate is not resolving a dispute between two

parties, but rather is interposing his neutral and detached

judgment so that prosecutors and law enforcement officials

are not the sole judges of when to use constitutionally

sensitive law enforcement techniques. See United States v.

United States District Court for Eastern Dist. , 407 U.S. 297,

316-17, 92 S.Ct. 2125, 2136-37, 32 L.Ed.2d 752 (1972).

While the authorizing officer cannot be subject to the control

of the Executive Branch, the Fourth Amendment does not

require that such officer be endowed with all of the attributes

of an Article III judge:

The substance of the Constitution’s warrant requirement

does not turn on the labeling of the issuing party. The

warrant traditionally has represented an independent

assurance that a search and arrest will not proceed without

probable cause to believe that a crime has been committed

and that the person or place named in the warrant is

involved in the crime. Thus, an issuing magistrate must

meet two tests. He must be neutral and detached and he

tion. An aggrieved party, however, may obtain review of the

validity of the order by a district court judge in a subsequent

judicial proceeding, 28 U.S.C. § 2515, although not all aspects of

such review can accurately be described as de novo. See Illinois v.

Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527

(1983).

48a

must be capable of determining whether probable cause

exists for the requested arrest or search.

Shadwick v. Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119,

2123, 32 L.Ed.2d 783 (1972). A United States magistrate

judge plainly meets these “two tests.” Indeed, the fact that a

sitting United States Magistrate judge is subject to removal

for cause and reappointment by the same United States

district court judges who review eavesdropping orders (if they

are later challenged at suppression hearings) operates to

ensure that he will fulfill properly the special responsibilities

with which he has been entrusted. Cf United States v.

Karathanos, 531 F.2d 26, 34 (2d Cir.), cert. denied, 428

U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976).

CONCLUSION

Accordingly, for the foregoing reasons, the United States

Attorney’s applications for wire interception orders pursuant

to Title II are referred to the United States magistrate judge

during the period from today until February 23, 1992 and

from October 5, 1992 until October 18, 1992 when I will

next serve in the Miscellaneous Part. I am prepared to

entertain an application to stay this order to permit the United

States Attorney to take such steps as he may deem appropriate

if he disagrees with my conclusions. See In re United States,

903 F.2d 88 (2d Cir. 1990).

SO ORDERED.

49a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse

in the City of New York, on the 15th day of February

on{e] thousand nine hundred and ninety-four.

IN RE: USA

DOCKET NUMBER: 93-3074

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by

Appellant USA.

Upon consideration by the panel that decided the appeal,

it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in

banc has been transmitted to the judges of the court in regular

active service and to any other judge that heard the appeal

and that no such judge has requested that a vote be taken

thereon.

FOR THE COURT,

GEORGE LANGE III, Clerk

By:

/s/

Carolyn Clark Campbell

Chief Deputy Clerk

50a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse

in the City of New York, on the 23rd day of November, one

thousand nine hundred and ninety-three.

In Re: UNITED STATES OF

AMERICA, Docket No.

93-3074

Petitioner

2K DK Se ie Sie Sie Sc iC ic 2k Si aie ik ak Sk ac ak ic ic aie aie 2c aie aie ah aie aie ic 2c aie aie aie ik 2c 2c 2c 2c

IN THE MATTER OF THE APPLICATION

OF THE UNITED STATES FOR AN ORDER

AUTHORIZING THE INTERCEPTION OF

WIRE AND ELECTRONIC COMMUNICA-

TIONS, ETC...

Before: Hon. Wilfred Feinberg, Hon. Richard J.

Cardamone and Hon. Frank X. Altimari, CJJ

A Petition for a Writ of Mandamus having being filed

by the United States Government and oral argument having

been heard,

Upon consideration thereof, it is

S5la

ORDERED that the Writ of Mandamus be and it hereby

is GRANTED in accordance with the opinion of this Court.

Further ordered that respondent Hon. Edward R.

Korman, USDJ shall not delegate review of Title Il

applications to federal magistrate judges and to review

personally an application now pending.

FOR THE COURT,

ELAINE B. GOLDSMITH, Clerk

By:

/s/

Edward J. Guardaro

Staff Attomey

52a

APPENDIX E

A. Title I of the Omnibus Crime Control and Safe Streets

Act of 1968:

18 U.S.C. § 2510. Definitions

* * *

(9) “Judge of competent jurisdiction” means —

(a) a judge of a United States district court or a United

States court of appeals; and

(b) a judge of any court of general criminal jurisdiction

of a State who is authorized by a statute of that State to

enter orders authorizing interceptions of wire, oral, or

electronic communications; * * *

18 U.S.C. § 2516. Authorization for interception of

wire, oral or electronic communications

(1) The Attorney General, Deputy Attorney General,

Associate Attorney General, or any Assistant Attorney

General, any actingAssistant Attorney General, or any

Deputy Assistant Attorney General in the Criminal Divi-

sion specially designated by the Attorney General, may

authorize an application to a Federaljudge of competent

jurisdiction for, and such judge may grant in conformity

with section 2518 of this chapter an order authorizing or

approving the interception of wire or oral communications

“x

B.

53a

Electronic Communications Privacy Act of 1986:

18 U.S.C. § 3127. Definitions for chapter

x«* *

(2) the term “court of competent jurisdiction” means —

(A) a district court of the United States (including a

magistrate of such a court) or a United States Court of

Appeals; or

(B) a court of general criminal jurisdiction of a State

authorized by the law of that State to enter orders authoriz-

ing the use of a pen register or a trap and trace device; *

x *

Federal Magistrates Act:

28 U.S.C. § 636. Jurisdiction, powers, and temporary

assignment

x* *

(b)(1) Notwithstanding any provision of law to the con—

trary —

(A) a judge may designate a magistrate to hear and

determine any pretrial matter pending before the court,

except a motion for injunctive relief, for judgment on the

pleadings, for summary judgment, to dismiss or quash an

indictment or information made by the defendant, to

suppress evidence in a criminal case, to dismiss or to

permit maintenance of a class action, to dismiss for failure

to state a claim upon which relief can be granted, and to

involuntarily dismiss an action. A judge of the court may

reconsider any pretrial matter under this subparagraph (A)

54a

where it has been shown that the magistrate’s order is

clearly erroneous or contrary to law.

(b)(3) A magistrate may be assigned such additional duties

as are not inconsistent with the Constitution and laws of

the United States.