Federal Bureau of Investigation Participation in Wire Interceptions in Cases Where It Lacks Investigative Responsibility ( 1981 )

Federal Bureau of Investigation Participation
in Wire Interceptions in Cases Where It Lacks Investigative
Responsibility
U nder 18 U.S.C. §2516(1), th e Federal Bureau o f Investigation (FBI) may be judicially
authorized to participate in Title III interceptions o f wire or oral communications
directed at narcotics-related offenses, even though the Drug Enforcement Administra­
tion and not the FBI has general investigative responsibility for such offenses.
T he plain language of §2516(1) authorizes the FBI to participate in court-approved
interceptions directed at any of the offenses listed in that section, and the legislative
history lends support to its “ plain meaning” interpretation.
September 29, 1981
MEMORANDUM OPINION FOR THE ASSISTANT DIRECTOR
FOR LEGAL COUNSEL, FED ERA L BUREAU OF
INVESTIGATION
This responds to your request for our opinion whether, pursuant to
18 U.S.C. § 2516(1)(1976 and Supp. IV 1980), the Federal Bureau of
Investigation (FBI) may be authorized by a court to participate in Title
III interceptions directed at offenses for which the FBI has no general
investigative responsibility. This legal question has arisen in the context
of investigations of narcotics-related offenses over which the Drug
Enforcement Administration (DEA)—not the FBI—has been delegated
general investigative responsibility by the Attorney General. See United
States Attorneys’ Manual, Section 9-1.122 (Oct. 17, 1977); 21 U.S.C.
§ 871(a). In particular, in a case in which the DEA seeks authorization
for an interception directed at narcotics offenses, and in which there is
no probable cause to seek authorization for in interception directed at
other offenses for which the FBI has general investigative responsibil­
ity, the question is whether the FBI as well as the DEA may be
authorized to participate in an interception. If, as the FBI’s Legal
Counsel Division has concluded, the FBI can participate in a Title III
interception only when it has general investigative responsibility for the
offense at which the interception is directed, then the FBI could not be
authorized by a court to participate in an interception in such a case.1
1 T he A ttorney General could, if he chose to do so, delegate general investigative jurisdiction over
narcotics-related offenses to the FB I. See 21 U.S.C § 871(a). Unless he does so, however, such
jurisdiction remains with the DEA . [N o t e : In February o f 1982, the Attorney General authorized the
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286
I.
In our view, § 2516(1) provides authority for the FBI to participate
in interceptions in such a case directed at any of the offenses listed in
that provision, including narcotics-related offenses, so long as all of the
specific procedural requirements of § 2516(1) are satisfied. We conclude
that it is not necessary for the FBI to have general investigative
responsibility for such offenses before it may participate in court-ap-
proved §2516(1) interceptions directed at them. The basis for this
conclusion is the plain language of §2516(1), which provides in perti­
nent part:
The Attorney General, or any Assistant Attorney General
specially designated by the Attorney General, may au­
thorize an application to a Federal judge 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 communica­
tions by the Federal Bureau of Investigation, or a Federal
agency having responsibility for the investigation of the
offense as to which the application is made, when inter-
. ception may provide or has provided evidence of—
* * * * *
(e) any offense involving . . . the manufacture, importa­
tion, receiving, concealment, buying, selling, or otherwise
dealing in narcotic drugs, marihuana, or other dangerous
drugs, punishable under any law of the United States . . .
The foregoing language specifically provides that an application may be
made to a court for an order approving an interception “by the Federal
Bureau of Investigation, or a Federal agency having responsibility for
the investigation of the offense as to which the application is made,
when such interception may provide or has provided evidence of ” the
listed offenses. In literal terms, this language authorizes the FBI to
participate in court-approved interceptions directed at the listed of­
fenses.
An interpretation leading to the contrary result would depend on the
premise that the clause within the commas—“or a Federal agency
having responsibility for the investigation of the offense as to which the
application is made,”—refers to the FBI as well as other federal agen­
cies, thereby requiring the FBI itself to have “responsibility” for the
investigation of any offense as to which an interception application is
made. That premise lacks specific textual support.2 We also believe it to
FBI, concurrently with the DEA, to investigate violations o f the cnminal drug laws of the United
States. See A tt’y Gen. Or. No. 968-82, 47 Fed. Reg. 4989 (1982). Ed.
2 A cardinal principle of statutory construction is that the language used by Congress is to be given
primary weight See, e.g.. Southeastern Community College v Davis, 442 U.S. 397, 405 (1979); Interna-
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287
be contrary to the natural inference to be drawn from the placement of
commas around the clause referring to a federal agency having investi­
gative “responsibility,” which renders that clause clearly a subordinate,
self-contained part of the sentence. No language renders the subordi­
nate clause an express qualification on the sentence’s main proposition
that the FBI may be authorized to participate in interceptions directed
at the listed offenses. It would have been simple to provide, had it been
Congress’ intent to do so, that the FBI may participate in court-
approved interceptions only in those instances where it has investiga­
tive “responsibility” for a given offense and not in those where another
federal agency has such “responsibility.” 3
II.
Section 2516(l)’s legislative history lends support to its “plain mean­
ing” interpretation. The Senate Judiciary Committee report, S. Rep.
No. 1097, 90th Cong., 2d Sess. 97 (1968), explains §2516(1) as follows:
The order of authorization may permit the Federal
Bureau of Investigation or the Federal agency having
responsibility for the investigation of the offense involved
to intercept the wire or oral communication. The Depart­
ment of Justice under the leadership of the Attorney Gen­
eral must be the central focal point of any drive against
organized crime, particularly in the collection, analysis,
and dissemination of information. It is appropriate that no
limitation be placed on the investigations in which the
investigative arm of the Department may participate. Or­
ganized crime has not limited itself to the commission of
any particular offense. No limitation should be placed on
the Department of Justice.
This passage speaks of possible judicial authorization of interceptions by
“the Federal Bureau of Investigation or the Federal agency having
responsibility for the investigation of the offense. . . .” It does not
indicate that the FBI must have general investigative responsibility for
a given offense before it may be authorized under §2516(1) to partici­
pate in an interception directed at such an offense. Moreover, by stating
that “no limitation” should be placed on the investigations in which the
investigative arm of the Department of Justice may participate (other
tional Brotherhood o f Teamsters v. Daniel, 439 U.S. 551, 558 (1979). A court is not “at liberty to imply
a condition which is opposed to the explicit terms of the statute. . . To [so] hold . . . is not to
construe the A ct but to amend it.” Detroit Trust Co. v. The Thomas Barium, 293 U.S. 21, 38 (1934),
quoted in Fedorenko v. United States, 449 U.S. 490, 514 (1981).
3 Section 2516(l)’s intention regarding the identity of the agencies that may execute an interception
order is taken for granted in J. C arr, The Law of Electronic Surveillance, § 5.02 at 243 (1977), which
m erely quotes the provision’s language in identifying such agencies: “ 'the Federal Bureau o f Investi-
gation, or a Federal agency having responsibility for the investigation of the offense as to which the
application is made.’ ”
288
than, presumably, any limitation mandated by the statutory language),
the report underscores the importance placed by the Committee on the
FBI’s ability generally to participate in court-approved interceptions
under §2516(1). To derive from §2516(1) a specific limitation on the
FBI’s authority to participate in interceptions that is not explicitly set
forth in the provision would appear inconsistent with this legislative
intent.4
Additional support for the “plain meaning” interpretation of § 2516(1)
derives from a study of predecessor wiretap bills. S. 1308, introduced in
the 88th Cong., 1st Sess. (1963), provided in pertinent part that the
Attorney General or a specially designated Assistant Attorney General
may authorize an application for judicial permission for “the Federal
Bureau of Investigation, or any federal agency having investigative
responsibility for the crimes set forth in this subsection,” to conduct
interceptions. The legislative history of S. 1308 includes a letter to the
Chairman of the Senate Judiciary Committee from the General Counsel
of the Department of the Treasury, dated July 2, 1963, which discusses
this provision of S. 1308. The General Counsel objected to the fact that
under the provision either the FBI or the agency charged with investi­
gating the listed offenses—in particular, with investigating narcotics
offenses, which then was the responsibility of the Treasury—could be
authorized by a court to conduct interceptions. He stated that such
“overlapping of authority would be undesirable. . . .” To prevent such
an overlap, the General Counsel proposed alternative language provid­
ing that the FBI or another agency, “whichever has the investigative
responsibility for a crime set forth in this subsection,” may be judicially
authorized to conduct an interception.® That alternative language was
not adopted by Congress.
Furthermore, the two bills acknowledged in the legislative history of
§2516(1) as the main sources of the wiretap legislation that was en­
acted—S. 675 and S. 2050, 90th Cong., 1st Sess. (1967) 6—differed in a
crucial respect in the wording of the relevant provision. S. 675 pro­
vided that “the Federal Bureau of Investigation, or other Federal
agency . . .” having investigative responsibility for certain offenses
4The broad principle that “no limitation*’ should be placed on the FBI's ability to participate in
interceptions is not inconsistent with the decision by the Attorney General, pursuant to 21 U.S.C.
§ 871(a), to delegate general investigative jurisdiction over narcotics-related offenses to the D EA. The
broad principle stated in the Senate committee report expresses the intent underlying § 2516(1), not the
intent underlying other statutes such as 21 U S.C . § 871(a). The latter statute authorizes the Attorney
General to “delegate any o f his functions under this subchapter to any officer or employee of the
Department o f Justice.”
5The 1963 letter was later printed in Criminal Laws and Procedures: Hearings on S. 2187, S. 2188, 5.
2189 et a l before the Subcomm. on Criminal Laws and Procedures o f the Senate Comm, on the Judiciary,
89th Cong., 2d Sess. 10-11 (1966).
*See S. Rep No. 1097, 90th Cong., 2d Sess. 66 (1968) (“Title III is essentially a combination o f S.
675 . . . and S. 2050. . . .”); 114 Cong. Rec 11755 (1968). S. 675 and S. 2050 are printed in
Controlling Crime Through More Effective Law Enforcement: Hearings on S 300, S. 552, S 580 et al.
before the Subcomm. on Criminal Laws and Procedures o f the Senate Comm, on the Judiciary, 90th
Cong., 1st Sess. 76, 1003 (1967).
289
may be authorized to conduct an interception directed at them (empha­
sis added). The use of the word “other” in the quoted phrase suggests
that the FBI would have had to have general investigative responsibil­
ity for the listed offenses. Otherwise, it would have made no sense to
refer to another federal agency as the “other” agency having such
responsibility. However, the word “other” was not included in S. 2050,
which spoke instead of “the Federal Bureau of Investigation, or a
Federal agency . . . .” having investigative responsibility (emphasis
added). The pertinent language of S. 2050—not that of S. 675—was
ultimately enacted.
Thus, the legislative history of § 2516(1) supports the conclusion
derived from the provision’s plain language that Congress intended that
the FBI may be judicially authorized to engage in an interception
directed at any of the listed offenses, including narcotics offenses.
III.
This interpretation of §2516(1) must be tested against the contrary
arguments advanced in the memorandum of the FBI’s Legal Counsel
Division. The memorandum relies not on the provision’s language or
legislative history, but rather on a reading of United States v. Marion,
535 F.2d 697 (2d Cir. 1976), and on an argument said to be based on
the general purposes of Title III.
The Legal Counsel Division’s memorandum summarizes the Marion
holding as follows:
In focusing on the investigative interests at the time of
interception, the Marion court requires separate orders, each
justifying the agency's investigative jurisdiction, before inter­
ception is permitted. (Emphasis added.)
This reading of Marion suggests that under that decision each agency
must have general “investigative jurisdiction” over an offense before it
may participate in an interception under §2516(1). However, we are
unable to find support for such a reading in the opinion itself. The
precise issue in Marion was whether the requirement of 18 U.S.C.
§ 2517(5) for subsequent judicial approval of incidental interceptions of
communications relating to offenses other than those specified in an
initial wiretap authorization applies to wiretaps initially authorized by
an order of a state court.7 The court of appeals held that, in such cases,
the requirement of § 2517(5) does apply. The court explained:
7 Section 2517(5) provides:
When an investigative o r law enforcement officer, while engaged in intercepting
wire o r oral communications in the manner authorized herein, intercepts wire or oral
com munications relating to offenses other than those specified in the order of authori­
zation or approval, the contents thereof, and evidence derived therefrom, may be
disclosed or used as provided in subsections (1) and (2) o f this section. Such contents
and any evidence derived therefrom may be used under subsection (3) o f this section when
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290
. . . our holding does not ‘call into question’ the practice
of joint federal-state wiretap investigations. Indeed, Title
I ll’s framers seem to have specifically envisioned co­
operation among law enforcement authorities of different
jurisdictions where appropriate to enhance the effective­
ness of electronic surveillance operations . . . . If, for
example, federal officials called into an ongoing state
wiretap operation learned at that time of communications
relating to separate federal offenses not specified in the
initial interception order, there would be little difficulty in
obtaining the requisite subsequent approval pursuant to
§2517. And where federal and state officers pursue an
investigation jointly from its inception, we foresee little
difficulty for the appropriate federal officer to obtain a
separate order authorizing the interception of communica­
tions relating to the federal offenses believed involved.8
This passage underscores that Marion involved §2517(5). It simply did
not deal with, and reached no conclusion about, the precise issue before
us regarding § 2516(1).
A broader argument in the Legal Counsel Division’s memorandum is
that a construction of §2516(1) permitting the FBI to participate in
court-authorized interceptions relating to all offenses enumerated in that
provision would be in tension with Title Ill’s underlying purposes,
which include placing restrictions on interceptions in order to protect
citizens’ privacy interests. To be consistent with such a purpose, courts
have noted that Title III should be carefully construed. See, e.g., United
States v. Giordano, 469 F.2d 522, 530 (4th Cir. 1972), affd, 416 U.S.
505 (1974). The Legal Counsel Division suggests that in order to be
consistent with this. canon of careful construction, it is necessary to
interpret § 2516(1) as not allowing the FBI to participate in an intercep­
tion unless it has general investigative responsibility for the offense at
which an interception is directed.
We agree that Title III, and hence §2516(1), must be carefully
construed. We do not agree, however, that such a construction must
include reading language into §2516(1) that is not there, especially
when the legislative history shows that one of the two major bills
authorized or approved by a judge o f competent jurisdiction where such judge finds on
subsequent application that the contents were otherwise intercepted in accordance with the
provisions o f this chapter. Such application shall be made as soon as practicable. [Em­
phasis added.]
8 535 F.2d at 707. Cf. United States v. Manfredi, 488 F.2d 588, 601 (2d Cir. 1973), cert, denied 417
U.S. 936 (1974) (noting that 18 U.S.C. §2517 authorizes disclosure to appropriate law enforcement
officials of evidence gained as a result o f an authorized wiretap, and concluding: “ If such information
may be exchanged after the termination o f the surveillance, we perceive no reason why that informa­
tion may not be disclosed to cooperating agencies contemporaneously with its interception ” ); United
States v Masciarelti. 558 F.2d 1064, 1067-68 (2d Cir. 1977); United Stales v. Webster, 473 F. Supp. 586,
600 (D. Md. 1979).
291
before Congress when it passed Title III contained language that would
have led to the result suggested by the Legal Counsel Division, but
Congress did not adopt it. The most fundamental canon of statutory
construction is that plain language should control, especially in the
absence of contrary legislative history.9 The Legal Counsel Division
has not pointed to such contrary legislative history. Nor have we
become aware of any.
Furthermore, although it is plain that in enacting Title III Congress
was sensitive to the need to protect citizens’ privacy interests, it does
not follow from this alone that §2516(1) must be read in the manner
suggested by the Legal Counsel Division. The Senate Judiciary Com­
mittee report states that “ [t]o assure the privacy of oral and wire
communications, title III prohibits all wiretapping and electronic sur­
veillance by persons other than duly authorized law enforcement officers
engaged in the investigation or prevention of specified types of serious
crimes, and only after authorization of a court order. . . (Emphasis
added). S. Rep. No. 1097, 90th Cong. 2d Sess. 66 (1968). In other
words, as long as the officers engaged in an interception are “duly
authorized” to do so and Title Ill’s other requirements are met, the
purpose of protecting the legitimate privacy interests would be satisfied.
Thus, the argument advanced by the Legal Counsel Division ultimately
returns us to the initial question that is the subject of this opinion: may
the FBI be “duly authorized” to participate in §2516(1) interceptions
when the interception is directed at an offense listed in that subsection,
even though the FBI lacks general investigative responsibility for the
offense? The “purposive” approach o f the Legal Counsel Division’s
memorandum does not ultimately assist in answering that question.
Another argument might have been made to support the position of
the Legal Counsel Division. Section 2516(1) specifically refers to the
procedures in §2518 governing orders authorizing interceptions, and
§ 2518(l)(a) states that an application must identify “the investigative or
law enforcement officer” making the application for an interception. 18
U.S.C. § 2510(7) defines the term “investigative or law enforcement
officer” to include “any officer o f the United States or of a State or
political subdivision thereof, who is empowered by law to conduct investi­
gations o f or to make arrests fo r offenses enumerated in this chapter, and
any attorney authorized by law to prosecute or participate in the
prosecution of such offenses . . . (Emphasis added.) It might be said
that §§2518 and 2510(7), read together, contemplate that all officers
covered by an application for an interception must be “empowered by
*A court interpreting a statute is bound by the 44 ‘literal or usual meaning of its words' ” unless this
would lead to " ‘absurd results . . . o r would thw art the obvious purpose o f the statute.' . . ” Trans
Alaska Pipeline Rate Cases, 436 U .S. 631, 643 (1978), quoting Commissioner v. Brown, 380 U.S. 563, 571
(1965). See also Southeastern Community College v. Davis, 442 U .S. 397, 405 (1979); Detroit Trust Co. v.
The Thomas Barium, 293 U.S. 21, 38 (1934), quoted in Fedorenko v. United States, 449 U .S 490, 514
(1981).
292
law” other than § 2516(1) to investigate an offense for which an inter­
ception authorization is sought.
The weakness in this argument is that it simply presupposes its
conclusion: it assumes that an “investigative or law enforcement offi­
cer” for purposes of § 2518 could not be, in the context of an intercep­
tion under §2516(1) directed at narcotics offenses, an officer of the
FBI. That is, of course, the question to be answered. It cannot be
resolved simply by stating conclusorily that § 2516(1) could not be read
to empower the FBI to participate in court-approved interceptions
directed at the offenses listed in it. As noted above, under §2516(l)’s
most natural reading it in fact does authorize the FBI to participate in
court-approved interceptions directed at any of the offenses listed in it.
IV.
For all the reasons stated in this opinion, we do not read § 2516(1) to
require the FBI to have general investigative responsibility for an
offense listed in that subsection before the FBI may be judicially au­
thorized to participate in an interception directed at such an offense,
including narcotics offenses. Accordingly, in the type of case that gave
rise to your opinion request to this Office, we conclude that, under
§2516(1), the FBI may be judicially authorized to participate in a
court-approved interception directed at an offense noted in that provi­
sion.
T heodore B. O l s o n
Assistant Attorney General
Office o f Legal Counsel
293