The Investigation for Fair Trail Act 2012 (Act I of 2013) Commentary

By SJTubrazy

Chapter 1:

Definitions

(a) ‘applicant’ means, Director General Inter Services intelligence, the three services Intelligence Agencies, Intelligence Bureau and Police.

Commentary

a. Applicant:

Application may be made by any attorney authorized by law to prosecute or participate in the prosecution of offenses enumerated in Chapter 119 of Title 18.  18 U.S.C. 2510(7) and 2518(1)(a).  An assistant United States attorney is authorized by statute to “prosecute all offenses against the United States.”  28 U.S.C. 547(1).  The Justice Department does not permit attorneys who are not licensed members of the bar in at least one state or the District of Columbia to practice law without supervision.  An attorney does not lose his status as an assistant United States attorney when he voluntarily chooses to become an inactive member of his bar.  Even if he were “unlicensed,” he could still function within the Justice Department, albeit with supervision, and therefore could still “participate in the prosecution of offenses.”  Tyree v. Dance, 1990 WL 40298 (9th Cir.).  An assistant United States attorney prosecuting a crime that occurred within his jurisdiction has the authority to submit a wiretap application in another district in furtherance of such prosecution.  U.S. v. Ishola, 1996 WL 197461 (N.D. Ill. 4/19/96).   A Title III application must be authorized by certain high-ranking Justice Department officials, 18 U.S.C. 2516(1), but 18 U.S.C. 2518(1)(a) does not require that a government attorney, rather than a law enforcement officer, execute the affidavit (attached as part of the application) used to establish probable cause and the inadequacy of alternative investigative techniques.  Per 2518(1)(a), each application shall include the identity of the “investigative or law enforcement officer” making the application, and the officer authorizing the application.  U.S. v. Williams, 124 F.3d 411 (3d Cir. 1997).

 

Private Litigants

District court lacked authority to compel the Government to release electronic surveillance tapes to a private litigant pursuing a civil matter.  RICO provision allowing disclosure “in any proceeding” did not create “a general civil discovery mechanism.”  Applications and orders sealed by the judge shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction. 18 U.S.C. 2518(8)(b).  National Broadcasting Company v. United States Department of Justice, 735 F.2d 51, 54 (2d Cir. 1984) (government opposed disclosure); Applications of Kansas City Star, 666 F.2d 1168 (8th Cir. 1981).

There is no authority in Title III for pretrial or compelled testimonial disclosure of sealed electronic surveillance evidence to a private civil RICO litigant.  In re: Motion to Unseal Electronic Surveillance Evidence, 990 F.2d 1015 (8th Cir. 1993) (en banc). If by virtue of sections 2511(2)(c) or (d) an interception is not prohibited by Title III, there are no Title III restrictions on its use. Section 2517(3) does not come into play and such questions as whether the section authorizes disclosure only in government proceedings and only at trial drop out; the meaning of “oral communications” also becomes moot.  In re High Fructose Corn Syrup Antitrust Litigation, 216 F.3d 621 (7th Cir. 2000).

Plaintiffs in civil action against city and city officials alleging violations of antitrust and racketeering statutes sought to subpoena electronic surveillance materials in possession of U. S. Attorney’s office relating to investigation of alleged scheme.  Plaintiffs would be allowed to subpoena portions of electronic surveillance material that had already been disclosed during related criminal prosecution; however, plaintiffs’ subpoenas would be quashed to extent that they sought surveillance materials which had not previously been disclosed in criminal trials.  County of Oakland by Kuhn v. Detroit, 610 F. Supp. 364 (E.D. Mich. 1984).

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