The opinion of the court was delivered by: RICHEY
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
The defendants have moved to suppress various wiretap tapes. With this memorandum and order the Court considers two components of that motion: (1) the request to suppress all tapes of conversations obtained pursuant to judicial authorization under 18 U.S.C. § 2511(2)(a)(ii)(A); and (2) the request to suppress all tapes recorded pursuant to the consent of a participant under 18 U.S.C. § 2511(2)(c).
The Court took evidence and heard arguments on the motions at various points during an omnibus motions hearing held August 3-9, 1989.
The Court will address the defendants' arguments relating to the above issues in turn.
1. Suppression of Judicially Authorized Wiretap Tapes
On August 16, 1988, United States District Judge Joyce Hens Green authorized the electronic surveillance of two telephone numbers in the District of Columbia. These numbers were subscribed to a defendant in this action, Armaretta Perry, and to another woman not named as a defendant. Judge Green's authorization rested upon an affidavit prepared and submitted by a Special Agent with the Drug Enforcement Administration, John Cornille. The application (of which the affidavit was a part) had been authorized on August 15 by Mark Richard, a Deputy Assistant Attorney General in the Criminal Division of the Department of Justice.
Richard authorized the wiretap application pursuant to 18 U.S.C. § 2516. That statute permits "any Deputy Assistant Attorney General in the Criminal Division", such as Richard, to authorize an application for a wiretap so long as he or she has been "specially designated by the Attorney General" as having the authority to do so. See § 2516(1). Richard derived his authority from Order No. 1162-86, signed by Attorney General Edwin Meese III on December 12, 1986. That Order expressly authorized "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 ...