UNITED STATES, Petitioner, v. Umberto Jose CHAVEZ et al.

This case, like United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, concerns the validity of procedures followed by the Justice Department in obtaining judicial approval to intercept wire communications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211—225, 18 U.S.C. §§ 2510—2520, and the propriety of suppressing evidence gathered from court-authorized wiretaps where the statutory application procedures have not been fully satisfied. As is more fully described in Giordano, Title III limits who, among federal officials, may approve submission of a wiretap application to the appropriate district court, to the Attorney General, or an Assistant Attorney General he specially designates, 18 U.S.C. § 2516(1), and delineates the information each application must contain, upon what findings an interception order may be granted, and what the order shall specify, 18 U.S.C. §§ 2518(1), (3), (4).1 Within this general framework, two statutory requirements are of particular relevance to this case. Section 2518(1)(a) provides that each application for a court order authorizing or approving the interception of a wire or oral communication shall include, among other information, 'the identity of the . . . officer authorizing the application.' Similarly, § 2518(4)(d) provides that the order of authorization or approval itself shall specify, in part, 'the identity of . . . the person authorizing the application.' The specific question for adjudication here, which it was unnecessary to resolve in Giordano, is whether, when the Attorney General has in fact authorized the application to be made, but the application and the court order incorrectly identify an Assistant Attorney General as the authorizing official, evidence obtained under the order must be suppressed. We hold that Title III does not mandate suppression under these circumstances.

* Respondents were all indicted for conspiracy to import and distribute heroin in violation of 21 U.S.C. §§ 173, 174 (1964 ed.). In addition, respondent Umberto Chavez was separately charged under 18 U.S.C. § 1952 with using and causing others to use a telephone between California and Mexico, and performing other acts, in order to facilitate unlawful narcotics activity, and respondent James Fernandez was charged under § 1952 with traveling between California and Mexico, and performing other acts, for the same purpose. Upon notification that the Government intended to introduce evidence obtained from wiretaps of Chavez' and Fernandez' phones at trial, respondents filed motions to suppress, challenging the legality of the Justice Department's application procedures leading to the issuance by the District Court of the two orders permitting the wire interceptions. Affidavits filed in opposition by the Attorney General and his Executive Assistant represented that the application submitted for the February 18, 1971, order authorizing interception of wire communications to and from the Chavez phone had been personally approved by the Attorney General, whereas the application for the February 25, 1971, order to intercept communications to and from the Fernandez phone had been approved by his Executive Assistant a a time when the Attorney General was unavailable, and pursuant to an understanding that the Executive Assistant, applying the Attorney General's standards as he understood them, could act for the Attorney General in such circumstances.

Each application to the court had recited, however, that the Attorney General, pursuant to 18 U.S.C. § 2516, had 'specially designated' the Assistant Attorney General for the Criminal Division, Will Wilson, 'to authorize (the applicant attorney) to make this application for an Order authorizing the interception of wire communications.' Moreover, appended to each application was a form letter, addressed to the attorney making the application and purportedly signed by Will Wilson, stating that the signer had reviewed the attorney's request for authorization to apply for a wiretap order pursuant to 18 U.S.C. § 2518 and had made the requisite probable-cause and other statutory determinations from the 'facts and circumstances detailed' in the request, and that 'you are hereby authorized under the power specially delegated to me in this proceeding by the Attorney General . . ., pursuant to the power conferred on him by Section 2516 . . . to make application' for a wire interception order. Correspondingly, the District Court's intercept order in each case declared that court approval was given 'pursuant to the application authorized by . . . Will Wilson, who has been specially designated in this proceeding by the Attorney General . . . John N. Mitchell, to exercise the powers conferred on the Attorney General' by § 2516.

The discrepancy between who had actually authorized the respective applications to be made, and the information transmitted to the District Court clearly indicating that Assistant Attorney General Wilson was the authorizing official, was explained as the result of a standard procedure followed within the Justice Department. While the Attorney General had apparently refrained from designating any Assistant Attorney General to exercise the authorization power under § 2516(1), form memoranda were routinely sent from his office, over his initials, to Assistant Attorney General Wilson, stating that 'with regard to your recommendation that authorization be given' to make application for a court order permitting wire interception, 'you are hereby specially designated' to exercise the power conferred on the Attorney General by § 2516 'for the purpose of authorizing' the applicant attorney to apply for a wiretap order. Evidently, this form was intended to reflect notice of approval by the Attorney General, though on its face it suggested that the decision whether to authorize the particular wiretap application would be made by Assistant Attorney General Wilson. In fact, as revealed by the affidavits of Wilson's then Deputy Assistants filed in opposition to respondents' suppression motions, 'Wilson did not examine the files or expressly authorize the applications' for either the February 18 or February 25 interception orders, and they signed his name 'in accordance with (his) authorization . . . and the standard procedures of the Criminal Division' to the respective letters of authorization to the applicant attorney, which were made exhibits to the applications. The signing of Wilson's name was regarded as a 'ministerial act' because of Wilson's authorization to his Deputies 'to sign his name to and dispatch such a letter of authorization in every instance in which the request had been favorably acted upon in the Office of the Attorney General.'

The District Court held that the evidence secured through both wiretaps had to be suppressed for failure of either of the individuals who actually authorized the applications to be 'identified to Chief Judge Carter, Congress or the public' in the application or orders, as mandated by § 2518(1)(a) and (4)(d), respectively. Moreover, evidence obtained under the February 25 wiretap order on the Fernandez phone was separately suppressed, because the Government admitted that 'neither the Attorney General nor a specially designated Assistant Attorney General ever authorized the application,' as § 2516(1) requires.

The Court of Appeals affirmed in all respects. 478 F.2d 512. With respect to the Chavez tap, the Court of Appeals assumed, as had the District Court, that the Attorney General had personally approved the request for authority to apply for the interception order, as his affidavit stated. Nonetheless, the misidentification of Assistant Attorney General Wilson as the authorizing official was deemed to be a 'misrepresentation' and an 'apparently deliberate deception of the courts by the highest law officers in the land.' id., at 515, 517, which required suppression of evidence gathered from the tap for failure to comply with 18 U.S.C. § 2518(1)(a) and (4)(d). Congress was held to have 'intended to eliminate any possibility that the authorization of wiretap applications would be institutional decisions,' and the Court of Appeals was fearful that if the misidentification which occurred in this case were approved, 'there would be nothing to prevent future Attorneys General from remaining silent if a particular wiretap proved embarrassing.' 478 F.2d, at 516.

We granted certiorari, 412 U.S. 905, 93 S.Ct. 2292, 36 L.Ed.2d 969, to resolve the conflict between the position taken by the Ninth Circuit in this case on the issue of suppression because of inaccurate identification of the officer authorizing the application and the position taken by every other circuit that has considered the question.2 We agree with those other courts of appeals that misidentifying the Assistant Attorney General as the official authorizing the wiretap application to be made does not require suppression of wiretap evidence when the Attorney General himself has actually given the approval; hence, we reverse that portion of the judgment suppressing the Chavez wiretap evidence and remand for further proceedings to permit the District Court to address other challenges to the Chavez wiretap evidence which respondents had made but the District Court did not find it necessary to consider.3 Because the application for the interception order on the Fernandez phone was authorized by the Attorney General's Executive Assistant, rather than by the Attorney General or any specially designated Assistant Attorney General, on whom alone 18 U.S.C. § 2516(1) confers such power, evidence secured under that order was properly suppressed for the reasons stated in the opinion filed today in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. Accordingly, that portion of the judgment suppressing the Fernandez wiretap evidence is affirmed.

The application and order for the Chavez wiretap did not correctly identify the individual authorizing the application, as 18 U.S.C. § 2518(1)(a) and (4) (d) require. Of this there is no doubt. But it does not follow that because of this deficiency in reporting, evidence obtained pursuant to the order may not be used at a trial of respondents. There is no claim of any constitutional infirmity arising from this defect, nor would there be any merit to such a claim, and we must look to the statutory scheme to determine if Congress has provided that suppression is required for this particular procedural error.

Section 2515 provides that the contents of any intercepted wire or oral communication, and any derivative evidence, may not be used at a criminal trial, or in certain other proceedings, 'if the disclosure of that information would be in violation of this chapter.' Aggrieved persons may move, in a timely manner under § 2518(10)(a), to suppress the use of such evidence at trial on the grounds that

'(i) the communication was unlawfully intercepted;

'(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

'(iii) the interception was not made in conformity with the order of authorization or approval.'

In United States v. Giordano, supra, we have concluded that Congress, in 18 U.S.C. § 2516(1), made preliminary approval of submission of wiretap applications a central safeguard in preventing abuse of this means of investigative surveillance, and intentionally restricted the category of federal officials who could give such approval to only the Attorney General himself or any Assistant Attorney General he might specially designate for that purpose. Hence, failure to secure approval of one of these specified individuals prior to making application for judicial authority to wiretap renders the court authority invalid and the interception of communications pursuant to that authority 'unlawful' within the meaning of 18 U.S.C. § 2518(10)(a)(i). Failure to correctly report the identity of the person authorizing the application, however, when in fact that Attorney General has given the required preliminary approval to submit the application, does not represent a similar failure to follow Title III's precautions against the unwarranted use of wiretapping or electronic surveillance and does not warrant the suppression of evidence gathered pursuant to a court order resting upon the application.

There is little question that § 2518(1)(a) and (4)(d) were intended to make clear who bore the responsibility for approval of the submission of a particular wiretap application. Thus, the Senate Report accompanying the favorable recommendation of Title III states that § 2518(1)(a) 'requires the identity of the person who makes, and the person who authorized the application (,) to be set out. This fixes responsibility.' S.Rep.No.1097, 90th Cong., 2d Sess., 101 (1968), U.S.Code Cong. & Admin.News, p. 2189. And § 2518(4)(d) 'requires that the order note the agency authorized to make the interception and the person who authorized the application so that responsibility will be fixed.' Id., at 103, U.S.Code Cong. & Admin.News 1968, p. 2192. Where it is established that responsibility for approval of the application is fixed in the Attorney General, however, compliance with the screening requirements of Title III is assured, and there is no justification for suppression.

Respondents suggest that the misidentification of Assistant Attorney General Wilson as the authorizing official was calculated to mislead the District Judge in considering the wire interception applications, and certainly had the effect of misleading him, since the interception order also misidentified the authorizing official in reliance on the statements made in the application. We do not perceive any purpose to be served by deliberate misrepresentation by the Government in these circumstances. To the contrary, we think it cannot be seriously contended that had the Attorney General been identified as the person authorizing the application, rather than his subordinate, Assistant Attorney General Wilson, the District Judge would have had any greater hesitation in issuing the interception order. The same could not be said of course, if, as in Giordano, the correct information had revealed that none of the individuals in whom Congress reposed the responsibility for authorizing interception applications had satisfied this preliminary step. The District Court undoubtedly thought that Wilson had approved the Chavez and Fernandez wiretap applications, and we do not condone the Justice Department's failure to comply in full with the reporting procedures Congress has established to assure that its more substantive safeguards are followed.4 But we cannot say that misidentification was in any sense the omission of a requirement that must be satisfied if wiretapping or electronic surveillance is to be lawful under Title III.

Neither the District Court nor the Court of Appeals made clear which of the grounds set forth in § 2518(10)(a) was relied upon to suppress the Chavez wiretap evidence. Respondents rely on each of the first two grounds, i.e., that the communications were 'unlawfully intercepted' and that the Chavez interception order is 'insufficient on its face.' Support for the latter claim is drawn from the District Court decision in United States v. Focarile, 340 F.Supp. 1033, 1057—1060 (Md.), aff'd on other grounds sub nom. United States v. Giordano, 469 F.2d 522 (C.A.4 1972), aff'd, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, which concluded that an order incorrectly identifying who authorized the application is equivalent to an order failing to identify anyone at all as the authorizing official. We find neither of these contentions persuasive.

Here, the interception order clearly identified 'on its face' Assistant Attorney General Wilson as the person who authorized the application to be made. Under § 2516(1), he properly could give such approval had he been specially designated to do so by the Attorney General, as the order recited. That this has subsequently been shown to be incorrect does not detract from the facial sufficiency of the order.5 Moreover, even if we were to look behind the order despite the clear 'on its face' language of § 2518(10)(a)(ii), it appears that the Attorney General authorized the application, as he also had the power to do under § 2516(1). In no realistic sense, therefore, can it be said that the order failed to identify an authorizing official who possessed statutory power to approve the making of the application.

The claim that communications to and from the Chavez phone were 'unlawfully intercepted' is more plausible, but does not persuade us, given the purposes to be served by the identification requirements and their place in the statutory scheme of regulation. Though we rejected, in Giordano, the Government's claim that Congress intended 'unlawfully intercepted' communications to mean only those intercepted in violation of constitutional requirements, we did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful.' To establish such a rule would be at odds with the statute itself. Under § 2515, suppression is not mandated for every violation of Title III, but only if 'disclosure' of the contents of intercepted communications, or derivative evidence, would be in violation of Title III. Moreover, as we suggested in Giordano, it is apparent from the scheme of the section that paragraph (i) was not intended to reach every failure to follow statutory procedures, else paragraphs (ii) and (iii) would be drained of meaning. Giordano holds that paragraph (i) does include any 'failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.' Supra, at 527, 94 S.Ct., at 1832.

In the present case, the misidentification of the officer authorizing the wiretap application did not affect the fulfillment of any of the reviewing or approval functions required by Congress and is not within the reach of paragraphs (ii) and (iii). Requiring identification of the authorizing official in the application facilitates the court's ability to conclude that the application has been properly approved under § 2516; requiring identification in the court's order also serves to 'fix responsibility' for the source of preliminary approval. This information contained in the application and order further aids the judge in making reports required under 18 U.S.C. § 2519.6 That section requires the judge who issues or denies an interception order to report his action and certain information about the application, including the 'identity of . . . the person authorizing the application,' within 30 days, to the Administrative Office of the United States Courts, § 2519(1)(f). An annual report of the authorizing officials designated in § 2516 must also be filed with that body, and is to contain the same information with respect to each application made as is required of the issuing or denying judge, § 2519(2)(a). Finally, a summary of the information filed by the judges acting on applications and the prosecutors approving their submission is to be filed with Congress in April of each year by the Administrative Office, § 2519(3). The purpose of these reports is 'to form the basis for a public evaluation' of the operation of Title III and to 'assure the community that the system of court-order(ed) electronic surveillance . . . is properly administered . . ..' S.Rep.No.1097, 90th Cong., 2d Sess., 107, U.S.Code Cong. & Admin.News 1968, p. 2196. While adherence to the identification reporting requirements of § 2518(1)(a) and (4)(d) thus can simplify the assurance that those whom Title III makes responsible for determining when and how wiretapping and electronic surveillance should be conducted have fulfilled their roles in each case, it does not establish a substantive role to be played in the regulatory system.

Nor is there any legislative history concerning these sections, as there is, for example, concerning § 2516(1), see United States v. Giordano, supra, at 516 et seq., 94 S.Ct., at 1827 et seq., to suggest that they were meant, by themselves, to occupy a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance. Though legislation to regulate the interception of wire and oral communications had been considered by Congress earlier, the proposed statute drafted for the President's Commission on Law Enforcement and Administration of Justice appears to have been the first published proposal to contain a requirement that the application for interception authority should specify 'who authorized the application.' Task Force Report: Organized Crime, App. C, p. 109, § 3803(a)(1) (1967). That proposal bill, which was substantially followed in Title III, also provided for reports like those now required by 18 U.S.C. § 2519, including information on 'the identity of . . . who authorized the application.' Id., at 111, § 3804(a)(6) and (b)(1). It did not, however, require the order to contain this information. Id., at 110, § 3803(e). S. 675, a bill introduced by Senator McClellan on January 25, 1967, as the 'Federal Wire Interception Act,' 113 Cong.Rec. 1491, did not contain any of these identification requirements. Hearings on Controlling Crime Through More Effective Law Enforcement before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 77—78, §§ 8(a), (d), 9(a) (1967). S. 2050, however, a proposal by Senator Hruska to regulate both wiretapping and electronic surveillance, did. Section 2518(a)(1) required an interception application to include 'the identity of the person who authorized the application,' and § 2519(a)(6) and (b)(1) provided that judges and authorizing prosecutors report 'the identity of . . . who authorized the application,' but did not require that the order contain this information, § 2518(e). Hearings, supra, at 1006 1008. The requirement that this information be contained in the order, as well as in the application and required reports first appeared in § 2518(e)(4) of H.R. 13482, 90th Cong., 2d Sess. (1967). Though the House never reported out of committee any wiretapping bill, it was retained in S. 917, a combination of S. 675 and S. 2050, whose provisions ultimately were enacted as Title III. Despite the appearance and modification of the identification requirements during the legislative process, however, no real debate surrounded their adoption, and only the statements in S.Rep.No.1097, supra, that they were designed to fix responsibility, give any indication of their purpose in the overall scheme of Title III. No role more significant than a reporting function designed to establish on paper that one of the major procedural protections of Title III had been properly accomplished is apparent.

When it is clearly established, therefore, that authorization of submission of a wiretap or electronic surveillance application has been given by the Attorney General himself, but the application, and, as a result, the interception order, incorrectly state that approval has instead been given by a specially designated Assistant Attorney General, the misidentification, by itself, will not render interceptions conducted under the order 'unlawful' within the meaning of § 2518(10)(a)(i) or the disclosure of the contents of intercepted communications, or derivative evidence, otherwise 'in violation of' Title III within the meaning of § 2515. Hence, the suppression of the Chavez wiretap evidence on the basis of the misidentification of Assistant Attorney General Wilson as the authorizing official was in error. Though we deem this result to be the correct one under the suppression provisions of Title III, we also deem it appropriate to suggest that strict adherence by the Government to the provisions of Title III would nonetheless be more in keeping with the responsibilities Congress has imposed upon it when authority to engage in wiretapping or electronic surveillance is sought.

The judgment of the Court of Appeals is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

It is so ordered.

Judgment of Court of Appeals affirmed in part, reversed in part and case remanded.