"any Deputy Assistant Attorney General of the Criminal Division, to exercise the power conferred by Section 2516(1) of Title 18, United States Code." When the prosecution sought an extension of Judge Green's August 16 Order, another Deputy Assistant Attorney General, John C. Keeney, relied upon the same Order in authorizing the extension on September 14, 1988.
The defendants challenge this authorization process on two fronts. First, they question the signatures on the authorizations themselves. They suggest that, in fact, neither Richard nor Keeney actually signed the authorizations, and that if they did sign them they may not have done so with the "mature judgment" called for under the circumstances.
Second, they challenge the Attorney General's authorizing Order, upon which both Richard and Keeney relied in approving the wiretap applications. The defendants contend that because Attorney General Meese left office (and was succeeded by Attorney General Thornburgh) on August 12, neither Richard nor Keeney enjoyed authority to approve wiretaps until expressly granted permission by Attorney General Thornburgh. And because Attorney General Thornburgh did not sign an approval Order of his own under § 2516(1) until May 24, 1989 -- some nine months after taking office -- the defendants argue that Richard's and Keeney's wiretap authorizations on August 15 and September 14, respectively, lacked the required approval of the then-incumbent Attorney General, Richard Thornburgh.
The defendants' first argument clearly fails. The government proffered the originals of the authorizing documents at the hearing. The Court's review of these original documents makes clear that they were not, as the defendants' memoranda suggest, rubber-stamped. Instead, they were actually signed by real people. And the defendants have offered nothing to suggest that the real people who signed the documents were not, in fact, Mark Richard and John Keeney. Counsel for the defendants, arguing in support of their right to call and examine these individuals at the motions hearing,
cited bureaucratic inefficiencies and alleged underhandedness as grounds for doubting the validity of the signatures. In the Court's view, however, some threshold showing of irregularity is required before government officials may be forced to authenticate their signatures on official documents. Were the showings here sufficient to cast aspersions on official documents, the Government would be paralyzed; its officials would be endlessly occupied by the need to testify at the behest of opposing lawyers. The absurdity of the result the defendants seek, at least in light of the preliminary showing they have made (or not made), is manifest. See United States v. De La Fuente, 548 F.2d 528, 531-35 (5th Cir.), cert. denied, 431 U.S. 932, 97 S. Ct. 2640, 53 L. Ed. 2d 249 (1977).
The defendants' second argument is unavailing as well. The fact that Richard and Keeney were operating pursuant to an Order issued by departed Attorney General Meese in no way vitiates their authority. The clear weight of the case law supports this proposition, and the defendants tilt at windmills by arguing otherwise. See United States v. Lawson, 780 F.2d 535, 539 (6th Cir. 1985) (authorization signed by Attorney General Civiletti in 1981 permitted Assistant Attorney General under Attorney General Smith to approve application in 1983); United States v. Kerr, 711 F.2d 149, 151 (10th Cir. 1983); United States v. Terry, 702 F.2d 299, 311 (2d Cir. 1983); United States v. Messersmith, 692 F.2d 1315, 1316-17 (11th Cir. 1982); United States v. Wyder, 674 F.2d 224, 226-27 (4th Cir.), cert. denied, 457 U.S. 1125, 73 L. Ed. 2d 1340, 102 S. Ct. 2944 (1982); United States v. Todisco, 667 F.2d 255, 259 (2d Cir. 1981), cert. denied, 455 U.S. 906, 71 L. Ed. 2d 444, 102 S. Ct. 1250 (1982).
The only arguable source of support for the defendants' position is United States v. Robinson, 225 U.S. App. D.C. 282, 698 F.2d 448 (D.C. Cir. 1983). In Robinson, the defendant-appellant presented the Court of Appeals with the same argument offered here: that any application approved pursuant to an ex-Attorney General's authorization is without effect. The Court of Appeals in Robinson, while expressing some concern, declined to suppress the challenged wiretaps.
The rationale underlying the Court of Appeals' concern, however, is somewhat opaque. On the one hand, the Court appears to have found no violation of § 2516(1). The Court concluded that because Attorney General Litvack was a "clearly identifiable and politically accountable person within the Justice Department," his authorization "adequately satisfie[d] the purposes of the statutory provision." Id. at 452. Yet, in the immediately following paragraph, the Court stated that "since the delay in revalidation was relatively brief and since the purposes of the statutory requirements were adequately served, we will not overturn the District Court's denial of appellant's motion to suppress." Id. The Court's latter observation seems to suggest that, in fact, a violation had occurred, but that because it was of a technical nature the remedy of suppression would be disproportionate to the harm suffered.
Although this Court is more comfortable with the view expressed in decisions such as Lawson, supra, which conclude that no violation has occurred under these circumstances, it is nevertheless apparent from the facts presented here that the violations, even if they occurred, were de minimis under Robinson and do not require suppression. The first authorization here took place on Monday, August 15, 1988 -- the first working day after Attorney General Thornburgh took office. The second authorization occurred on September 14, 1988, some 32 days after Thornburgh's ascent. In Robinson, by contrast, the challenged authorization occurred 30 days after the change in administrations.
Thus, the authorizations challenged in this case fall easily within the scope of permissible delay defined in Robinson ; as in Robinson, the remedy of suppression would be disproportionate to the harm suffered, if indeed harm has been suffered.
The defendants' motion to suppress on these grounds will be denied.
2. Tapes Recorded Pursuant to the Consent of a Participant
Section 2511(2)(c) of Title 18 provides that a wire communication may be recorded where "one of the parties to the communication has given prior consent to such interception." Here, the government intends to introduce at trial recordings of conversations conducted by three government informants. The defendants with whom these informants conversed now challenge the informants' "consent" to the taping of the conversations.
The Court heard testimony from police officers and agents of the Drug Enforcement Administration regarding the circumstances surrounding the taping of the conversations. From this testimony, the Court is satisfied that the informants did indeed "consent" to the taping of the conversations within the meaning of § 2511(2)(c), and that the defendants' motion to suppress must be denied.
The defendants' first contention goes to the nature of the testimony adduced at the hearing. The defendants argue that the Court cannot evaluate the question of consent in a meaningful way without hearing from the informants themselves. They posit that because the Court heard only from the law enforcement officials who supervised the recordings, the Court cannot possibly appreciate the pressures which led to the informants' "consent."
This argument misunderstands the test for "consent" in the wiretap context, and the evidentiary principles that flow from that standard. The substantive test for consent is not, as the defendants' argument would suggest, similar to that used to gauge a defendant's waiver of a constitutional right. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (test for consent in the constitutional context). Rather, the test for consent in the wiretap context is considerably less rigorous: an individual need only proceed despite his or her understanding that the conversation is being recorded. See United States v. Fuentes, 563 F.2d 527, 533 (2d Cir. 1977)("it will normally suffice [to prove consent] for the government to show that the informer went ahead with a [conversation] after knowing what the law enforcement officers were about") (quoting United States v. Bonanno, 487 F.2d 654, 658-59 (2d Cir. 1973). Promises of leniency -- i.e., "coercion" through promises of favorable treatment should a defendant cooperate -- do not vitiate consent under the wiretap statute. United States v. Juarez, 573 F.2d 267, 278 (5th Cir. 1978).
This substantive standard both informs the nature of the evidence that will be adequate to address a motion to suppress, and, as applied in this case, makes clear that the defendants' motion should be denied. The lenient substantive standard permits proof by circumstantial evidence. As articulated by Judge Friendly in Bonnano, the lower substantive standard reflects the fact that, unlike consent to a search, an informer's consent to a wiretap does him or her no additional harm: it is merely "an incident to a course of cooperation with law enforcement officials on which he has ordinarily decided some time previously and entails no unpleasant consequences to him." 487 F.2d at 658. Thus, testimony regarding consent is sufficient if it shows that, in fact, the informer's actions were taken in furtherance of the "course of cooperation." Testimony of this type is nearly analogous to the testimony of a witness to a physical event, such as an automobile accident. In this context, the occurrence of that event -- the perpetuation of the course of cooperation -- can easily be shown by circumstantial evidence from the agents who witnessed the consent. Testimony from the informants themselves, while perhaps helpful, is not required.
The testimony of the agents in this case makes clear that each informant understood very well "what the law enforcement officers were about." Each seems to have assumed that cooperation with the government might prove rewarding, but again, this does not vitiate consent. The agents' testimony, even after cross-examination, clearly shows that each informant undertook each challenged conversation in a fully cooperative fashion, understanding the consequences, and as part of a larger course of cooperation with the government.
The agents' testimony, notwithstanding its circumstantial nature, is fully adequate to establish the informants' consent to the wiretaps for purposes of § 2511(2)(c).
The defendants make an additional argument on the question of consent. They contend that because Maryland law requires the consent of both parties before a conversation may be recorded, and it is undisputed here that only one party consented in each taped conversation, those conversations involving a Maryland number must be suppressed. They argue that whenever state law provides greater protections for constitutional interests than federal law, state law must control.
The defendants' argument either overlooks or ignores the body of settled precedent which provides that evidence obtained by federal officials in violation of state law is admissible in federal court if all federal requirements have been complied with. See, e.g., United States v. Daniel, 667 F.2d 783, 785 (9th Cir. 1982) ("The wiretap evidence was secured [by federal agents] in conformity with the Constitution and federal law. There is no basis for excluding it."); United States v. Infelice, 506 F.2d 1358, 1365 (7th Cir. 1974) ("The question of admissibility does not turn upon whether evidence was obtained in violation of state law. Federal law governing the admissibility of evidence in federal criminal trials permits the introduction of such tape recordings."). Indeed, recent authority indicates that federal law determines admissibility even when state officials have seized evidence in violation of state law, but the evidence is sought to be introduced in connection with a federal prosecution. United States v. Pforzheimer, 826 F.2d 200, 202-04 (2d Cir. 1987). Cf. Preston v. United States, 376 U.S. 364, 366, 11 L. Ed. 2d 777, 84 S. Ct. 881 (1964) ("The question whether evidence obtained by state officers and used against a defendant in a federal trial was obtained by unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers.").
These principles dispose of the defendants' argument. Regardless of whether the evidence was acquired solely by federal or state officials, or whether its manner of acquisition ran contrary to the laws of Maryland, its admissibility is to be determined in accordance with federal law. And because the Court has already determined that the conversations were properly recorded under § 2511(2)(c), the defendants' motion to suppress on this ground shall be denied.
In light of the foregoing, it is, by the Court, this 22nd day of August, 1989,
ORDERED, that the defendants' motion to suppress various wiretap tape recordings on the ground that the authorizations therefore were invalid shall be, and hereby, is denied; and it is further
ORDERED, that the defendants' motion to suppress various wiretap tape recordings resulting from the purported consent of any party to those conversations shall be, and hereby is denied.