Petition for Writ of Certiorari — Williams v. United States

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8 4 a 2 9 2 fice Supreme Court, U

No.

IN THE yin

ILED

AUG 20 1984

ALEXANDER |. STEVAS

CLERK

Supreme Court of the Anited States

OCTOBER TERM, 1984

THOMAS F. O’MALLEY

and

ANDREW G. MASSA,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TC THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

WILLIAM G. HUNDLEY

HUNDLEY & CACHERIS, P.C.

1914 Sunderland Place, N.W.

Washington, D.C. 20036

(202 )293-0224

Counsel for Petitioner O’Malley

ROBERT M. STEPHENSON

CorTsiRILos & CROWLEY, LTD.

33 North Dearborn Street

Suite 930

Chicago, Illinois 60602

(312 )263-0345

Counsel for Petitioner Massa

Pandick Midwest, Inc., Chicago ® (312) 454-7600

QUESTION PRESENTED

Whether a district court violated the Federal Wiretap

Statute, 18 U.S.C. §§ 2510( 11), 2515 and 2518(10)(a), and

applicable precedent when it denied two criminal defendants,

who were named targets in a court order authorizing oral

interception of conversations and whose conversations were, in

fact, intercepted, standing to move to suppress their intercepted

conversations on the basis that the government, prior to

obtaining a court order authorizing oral interceptions, surrepti-

tiously and unlawfully entered the premises where the conver-

sations took place and seized information about the security

system, all of which led to the later installation of oral

monitoring devices.

TABLE OF CONTENTS

QUBETION PRRSENTED oi. ciiddi i .

TABLE OF CITATIONS ...........0---. ee ere

8 IR RelA De Lip RT

ELD IRDA NS BNS SIS AT IDE

STATUTORY PROVISIONS INVOLVED .......cccseeseeeees

STATEMENT OF THE CASI .ncscicisisccicciiecthsicnnc

REASONS FOR GRANTING THE WRIT.......csccssee00---

lL.

The Decision Below Violates The Federal Wire-

tap Statute And An Opinion Of This Court By

Allowing The Use of Unlawful Surre ttious

Entries Prior To Obtaining Court Authorization

For The Purpose Of Acquiring Information De-

signed To Facilitate The Placement Of Elec-

tronic Monitoring Equipment In A Premises So

That Conversations Of Targeted Individuals

Will Be Intercepted After Court Authorization Is

CRIN TINIE seis inncscnccccrssnipclamediinainoeien

The Decision Below, In Contravention Of Opin-

ions Of This Court And The Courts Of Appeals

Which Have Considered The Question, Under-

mines The Congressionally Intended Appli-

cation Of The Federal Wiretap Statute To Per-

sons Whose Conversations Are Intercepted Un-

Gel TRO BORING vsnescisistsisctmcieaeeiaaene

FRE AIO inissssivonieseiirpniniasieiniasienegnelsenalliietasie sannmnanaEnaR

APPENDIX:

Court of Appeals Opinion decided June 8, 1984......

District Court Opinion dated June 17, 1983 .............

Court of Appeals Order denying petition for re-

hearing and suggestion for rehearing en banc

Gawd Fay 1d, TPO cskcsccnenaiscaemnmaaeaas

iil

TABLE OF CITATIONS

Cases

PAGE

Anthony v. United States, 667 F.2d 870 (10th Cir.

1981), cert. denied, __. U.S. ___, 102 S.Ct.

Fe ee BOO © LED verecevcsnsecereepessrysnanes 17

Dalia v. United States, 441 U.S. 238 (1979) wo... 8, 9, 10,

Gelbard v. United States, 408 U.S. 41 (1972) wu... 8, 9, 10,

14, 15

Irvine v. California, 347 U.S. 128 (1954)... 12

United States v. Calandra, 414 U.S. 338 (1974)... 13, 14

United States v. Chase, 692 F.2d 69 (9th Cir.

a aah lad caanaatcaananbaiealibstuanadstsianene i2

United States v. Dorfman, 690 F.2d 1217 (7th Cir

TSR cc 8 eee “Se 15, 16, 17

aso States v. Fury, $54 F.2d 522 (2d Cir.

77), cert. denied, 436 U.S. 931 (1978)... i2

United States v. Giordano, 416 U.S. 505 (1974)... 8

United States v. Hanier, 652 F.2d 1374 ( i0th Cir.

ES SEES Ee ee ee 12

United States v. Scafidi, 564 F.2d 635 (2d Cir

ear lenid ican aah hienininshnnnhcetinnhensiesLanenes 11

United States v. Williams, 580 F.2d 578 (D.C.

Cir. ), cert. denied, 439 U.S. 832 (1978)... 12

United States v. Wright, 524 F.2d 1100 (2d Cir.

a a clsshnnbesalenasanenen 12

Statutes

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Fe Sess FE EE Peecsnnnnoninas aaninbinnakiemnnainniels

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BD As & SIU Potcrcintesssnnsciasinriinnn salient

Te oat, : ee ee sie

I I sti icictetictitsinccliianaeath

WO REA FET) nai ncsersescsteereesvncs

Sg | | ee RO aN

18 U.S.C. § 2518(10)(a) (i) sersrsescsssssceeseessssneteeeees

18 U.S.C. § 2518(10){a)( iid) o.ececscccssseceseesseneeeeeen

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Other Provisions

S.Rep. No. 1097, 90th Cong., 2d Sess. 91 (1968) ...

S.Rep. No. 1097, 90th Cong., 2d Sess. 96 ( 1968) ...

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, |984

THOMAS F. O’MALLEY

and

ANDREW G. MASSA,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioners, Thomas F. O’Malley and Andrew G.

Massa, respectfully pray that a Writ of Certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Seventh Circuit entered in this proceeding on

June 8, 1984.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the

Seventh Circuit, not yet reported, appears in the Appendix

hereto. (App. la-40a). The District Court also rendered an

opinion with respect to the question presented herein, which is

reported at 565 F.Supp. 353 (N.D. Ill. 1983), and appears in

the Appendix hereto. (App. 41a-80a).

The decision of the United States Court of Appeals for the

Seventh Circuit denying a Petition For Rehearing And Sugges-

tion For Rehearing En Banc, entered on July 12, 1984, is not

yet reported and is included in the Appendix hereto. (App.

8la).

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered on June 8, 1984. A timely Petition For

Rehearing And Suggestion For Rehearing En Banc was denied

on July 12, 1984, and this Petition For Certiorari was filed

within 40 days of that date. This Court's jurisdiction is invoked

under 28 U.S.C. § 1254( 1).

STATUTORY PROVISIONS INVOLVED

Section 2510( 11) of Title 18, the Federal Wiretap Statute:

As used in this chapter—‘‘aggrieved person” means a

person who was a party to any intercepted wire or oral

communication or a person against whom the interception

was directed.

Section 2518(10)(a) of Title 18, the Federal Wiretap

Statute:

Any aggrieved person in any trial, hearing, or pro-

ceeding in or before any court, department, officer, agency,

regulatory body, or other authority of the United States, a

State, or a political subdivision thereof, may move to

suppress the contents of any wire or oral communication

intercepted pursuant to this chapter, or evidence derived

therefrom, on the grounds that—

(i) the communication was unlawfully inter-

cepted;

~ (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.

Such motion shall be made before the trial, hearing or

proceeding unless there was no opportunity to make such

motion or the person was not aware of the grounds of the

motion. If the motion is granted, the contents of the

intercepted wire or oral communication, or evidence de-

rived therefrom, shall be treated as having been obtained

in violation of this chapter. The judge, upon the filing of

such motion by the aggrieved person, may in his discretion

make available to the aggrieved person or his counsel for

inspection such portions of the intercepted communication

or evidence derived therefrom as the judge determines to

be in the interests of justice.

Section 2515 of Title 18, the Federal Wiretap Statute:

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in

evidence in any trial, hearing, or other proceeding in or

before any court, grand jury, department, officer, agency,

regulatory body, legislative committee, or other authority

of the United States, a State, or a political subdivision

thereof if the disclosure of that informati. 2 would be in

violation of this chapter.

STATEMENT OF THE CASE

Petitioners, along with Allen Dorfman, Roy L. Williams

and Joseph Lombardo,' were convicted of conspiracy to bribe a

United States Senator, 18 U.S.C. § 371, interstate travel to

promote the bribery, 18 U.S.C. § 1952, and wire fraud, 18

_U.S.C. § 1343. During the trial, the government introduced

into evidence eleven tape recorded conversations which were

‘Both Williams and Lombardo have or will file petitons for

certiorari. Petitioners, by separate motion, will move to adopt the

questions presented therein as additional grounds for challenging

their convictions.

overheard in the offices of Allen Dorfman through monitoring

devices surreptitiously placed therein by the government.

These conversations formed the basis for petitioners’ con-

victions.

The interception of oral conversations in the Dorfman

offices was part of the longest electronic surveillance in the

history of the country. It continued over a one year period.

The surveillance included the interception of both wire and oral

communications. The interception of wire communications

began on January 30, 1979, pursuant to a court order, and

continued pursuant to extensions of the J inuary 30 order

through June, 1979. The interception of oral communications

involved the monitoring of conversations in the Dorfman

offices. These interceptions began after an April 7, 1979 order

was entered authorizing the interceptions and continued

through January, 1980, pursuant to extensions of the April 7

order. As a result of the wire interceptions, the government

targeted petitioners as subjects of the later monitoring of oral

communications in the Dorfman offices.

The government application for the April 7 order alleged

that there was probable cause to believe that petitioners,

Dorfman, Lombardo and others were engaged in several!

offenses, that Dorfman’s office had been used and was being

used by the named individuals, including petitioners, in con-

nection with the described offenses and that, if the court

allowed the requested surveillance of Dorfman’s office, conver-

sations of the named individuals relating to these offenses

would be intercepted. The government application contained a

written authorization from the then Assisiant Attorney General

of the Criminal Division of the Department of Justice author-

izing the application for the requested surveillance. That

authorization directed that the government's application in-

clude a request to enter Dorfman’s office and the building in

which it was housed surreptitiously for the purpose of installing

electronic surveillance devices. In accordance with the Depart-

tn”

ment of Justice authorization, the Apmil 7 application “re-

quested that the order authorize entry of [ Dorfman’s office] for

the purpose of instailing ... any electronic oral interception

devices utilized pursuant to the authority granted by [the

court’s] order.” April 7 application at 19.

On April 7, 1979, the judge before whom the government

filed its April 7 application granted the application. An order

resulted permitting the surveillance and the surreptitious entries

which the government requested. The order named petitioners

as well as Dorfman and Lombardo as targets of the surveil-

lance. Interceptions began occurring from Dorfman’s office on

Apni 13, 1979 and continued thereafter through January, 1980.

The interceptions included petitioners’ conversations, some of

which were introduced at trial. Petitioners’ convictions resulted.

After petitioners were sentenced, they filed a motion for a

new tnal based on newly discovered evidence.2 The newly

discovered evidence constituted the sworn statement of H.

Edward Tickel, a former FBI agent who worked in the

Technical Services Division Operational Support Unit at FBI

Headquarters in Washington, D.C. While employed with the

FBI, Tickel’s main function was to gain surreptitious entry into

buildings for, among other things, the placement of monitoring

devices. According to Tickel, he, along with other FBI agents.

unlawfully entered the building in which Dorfman’s office was

housed and Dorfman’s office, including the alarm room located

nearby, at night prior to the acquisition of the April 7 court

order. The purpose of the entries was to inspect the security

system guarding Dorfman’s office and to gather information

about it, which then could be used to develop a method to

defeat the system. Thereafter, when a court order was obtained

specifically authorizing the surreptitious piacing of electronic

monitoring devices in Dorfman’s office, the devices could be

placed without triggering the security system.

2Section 2518 of the Federal Wiretap Statute specifically pro-

vides for challenging the legality of electronic surveillance after trial

when the grounds for the chalienge were not known prior thereto.

ii i

nns*s(sxcxve

re nega

During the unlawful entries, Tickel obtained information

which the government used to later defeat the security system

around Dorfman’s office. That, in turn, enabled the govern-

ment to place monitoring devices in Dorfman’s office. Without

the information gathered by Tickel, the monitoring devices

which intercepted petitioners’ conversations never would have

been placed in Dorfman’s office. Succinctly, Tickel’s unlawful

entries occurred to further, and did further, the government’s

pian to place monitoring devices in Dorfman’s office to trans-

mit, among other things, the conversations of petitioners for

recording purposes. At the time of the unlawful entries, the

government had already targeted petitioners for interception in

the Dorfman offices.

The District Court denied petitioners’ motion for new trial,

in part, because, they lacked standing under the Federal

Wiretap Statute to suppress the fruits of the alleged unlawful

conduct. The court stated:

Nothing in Title III governs Tickel’s conduct directly; Title

III governs only electronic surveillance. Nothing in the

statute governs unlawful entries of property. Thus, Title

III does not afford defendants standing to challenge the

unlawful entries in themselves. Defendants therefore can

argue only that their conversations were unlawfully inter-

cepted because the interceptions were made possible by

Tickel’s earlier unlawful conduct which they do not have

standing to challenge under Title III or the Constitution.

This is exactly the same as the fruits of the poisonous tree

argument we rejected above, and it must be rejected here

as well. The suppression remedy contained in Title III was

intended to be construed consistently with fourth amend-

ment principles of standing.

(App. at 63a). The Court of Appeals affirmed the district court

order denying petitioners’ motion for new trial solely on the

basis that they lacked standing to object to the contested

conduct. The Court stated:

Tickel’s alleged searches did violate Allen Dorfman’s

rights but these searches, which the defendants contend

mandate suppression of the electronic evidence, “did not

infringe their fourth amendment rights.”

Under both Fourth Amendment principles and Title III

law, a defendant may not obtain the exclusion of evidence

on the ground that someone else’s rights were violated. In

other words, a defendant may assert only his own rights.

Consequently, a defendant may not successfully challenge

the admissibility of evidence on the basis that the evidence

is tainted (or “the fruit of’) some past infringement of

another’s rights.

(App. at 38a).

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW VIOLATES THE FEDERAL

WIRETAP STATUTE AND AN OPINION OF THIS

COURT BY ALLOWING THE USE OF UNLAWFUL

SURREPTITIOUS ENTRIES PRIOR TO OBTAINING

COURT AUTHORIZATION FOR THE PURPOSE OF

ACQUIRING INFORMATION DESIGNED TO FACIL-

ITATE THE PLAC) MENT OF ELECTRONIC MONI-

TORING EQUIPMENT IN A PREMISES SO THAT

CONVERSATIONS OF TARGETED INDIVIDUALS

WILL BE INTERCEPTED AFTER COURT AUTHOR-

IZATION IS OBTAINED THEREFOR

Congress enacted the Wiretap Statute to define the narrow

circumstances in which wiretapping and all other forms of

electronic surveillance would be allowed. The statute author-

izes the interception of wire and oral communications only by

law enforcement officials investigating specific crimes after

judicial approval is obtained based upon a stringent showing

of, among other things, probable cause and that normal

investigative procedures have been tried and failed or reason-

ably appear to be unlikely to succeed if tried or to be too

dangerous. Moreover, to insure that electronic surveillance

would not be routinely employed in criminal investigations, the |

Statute requires that, before judicial approval is sought, the

authorization of a responsible Department of Justice official be

obtained.

The clear purpose of the statute was to prohibit all

interceptions of oral and wire communications, except those

authorized by it.3 if a wire or oral communication is intercepted

in accordance with the statute, the contents of the commu-

nication may be disclosed and used in various proceedings. On

the other hand, unauthorized interceptions, either wire or oral,

and the disclosure or use of information obtained through

unauthorized interceptions are crimes,‘ the victims of which are

entitled to recover civil damages therefor.5 Moreover, the

statute bars the use of the interceptions before courts and other

’ Official bodies.€ To that end, the statute provides procedures for

moving to suppress unlawfully intercepted communications”

and, in doing so, specifies the “aggrieved” persons entitled to

challenge the legality of the interceptions. Specifically, a person

who was a party to any wire or oral communication or a person

at whom the interception was directed may move to suppress

communications unlawfully intercepted.®

The provisions of the Federal Wiretap Statute govern the

use of surreptitious entries into places for the purpose of |

installing electronic monitoring equipment. In Dalia v. United

States, 441 U.S. 238 (1979), defendant contended that Con-

gress, in enacting the statute, “[did] not [give] the courts )

statutory authority to approve covert entries for the purpose of

3 United States v. Giordano, 416 U.S. 505, 514 (1974): Gelbard

v. United States, 408 U.S. 41, 46 (1972).

418 U.S.C. § 2511(1). |

518 U.S.C. § 2520.

618 U.S.C. § 2515.

718 U.S.C. § 2518(10)(a).

installing electronic surveillance equipment . . .” since “there is

no indication in the statute that covert entry ever may be

ordered.” 441 U.S. at 249. Thus, defendant moved to suppress

evidence obtained through the interception of conversations by

means of a device installed surreptitiously in his office. This

Court rejected defendant’s argument, stating:

Those considering the surveillance legislation understood

that, by authorizing electronic interception of oral commu-

nications in addition to wire communications, they were

necessarily authorizing surreptitious entries.

. Congress’ purpose in enacting the statute would be

largely thwarted if we were to accept [defendant’s] in-

vitation to read into [the Statute] a limitation on the

court’s authority ... . Congress permitted limited electronic

surveillance under {the Statute} because it concluded that

both wiretapping and bugging were necessary to enable

law enforcement authorities to combat successfully certain

forms of crime. Absent covert entry, however, almost all

electronic bugging would be impossible ....

... [W]e conclude that Congress clearly understood that it

was conferring power upon the courts to authorize covert

entries ancillary to their responsibility to review and approve

surveillance applications under the statute.

441 U.S. at 252-54. (Emphasis added). Succinctly, the

Federal Wiretap Statute, in addition to empowering courts to

authorize electronic surveillance in limited situations, also em-

powered courts, once the stringent requirements of the statute

were met, to authorize the means to accomplish the surveil-

lance, including the use of covert entries for the purpose of

installing monitoring devices. It necessarily follows that Con-

gress also empowered the courts to restrict the means used to

accomplish a surveillance.? In each case, the question for the

9 The court order authorizing the surveillance must particularize

the extent and nature of the interceptions. 18 U.S.C. § 2518(4).

Similarly, the statute, in numerous instances, provides the court with

(Footnote continued on following page)

court is what means is reasonable under the circumstances to

accomplish the requested surveillance. 441 U.S. at 249. If the

government exceeds the means dictated by the court to accom-

plish the surveillance, grounds would then exist to challenge the

legality of interceptions which occurred as a result of the

monitoring.'° For even greater reasons, if surreptitious entries

are made before a court order for surveillance is obtained for :

the purpose of aiding the government in installing monitoring

devices after a court order is entered, those entries, made in

connection with the requested surveillance, fall within the

purview of the statute and the court’s supervisory power over

the surveillance. The entries would be no different than actual

electronic monitoring occurring prior to entry of a court order.

To hold otherwise would force “courts ... [to] become part-

ners of illegal conduct,”'’' which the statute was specifically |

drafted to avoid, and defeat their power to review and approve |

surveillance applications. Accordingly, a person who was a ;

party to a conversation intercepted over monitoring devices |

installed as a result of surreptitious entries prior to the order

authorizing the interception would have standing to move to

suppress the conversation, charging that it was unlawfully

intercepted. The same, of course, would be true for a person

( Footnote continued from preceding page)

discretionary power concerning how the surveillance should be con-

ducted. Thus, the court can determine the time period in which the

surveillance is to occur so long as it does not exceed thirty days. 18

U.S.C. §2518(5). Similarly the court can require the filing of

progress reports detailing the results of the surveillance. 18 U.S.C. )

§ 2518(6). Moreover, the court can determine the person to whom |

notice of the surveillance should be sent after its termination, in-

cluding what materials should be made available to those who receive

notice. 18 U.S.C. §2518(9)(d). Final’y, the court can direct a

landlord or other custodian of the premises to be surveilled to render

the government assistance in making surreptitious entry. 18 U.S.C.

§ 2518( 4).

1018 U.S.C. § 2518(10)(a)(i) and (iii).

11 Gelbard v. United States, 408 U.S. 41, 51 (1972).

cm Sieserd tik Orval dS 2 tine a Sane Na

against whom the interception was directed—namely, a target

of the surveillance. '2

Here, petitioners, based upon the admissions of an agent

who participated in the conduct, alleged that agents of the FBI,

prior to obtaining a court order authorizing interception of their

conversations, unlawfully entered the premises in which those

conversations took place to gather information which the

government intended to use to defeat the security system of the

premises and thereby allow it to successfully install monitoring

devices in the premises. Thereafter, petitioners alleged that the

government used information seized during the unlawful covert

entries to defeat the security system which allowed the govern-

ment to place the monitoring devices in the premises after a

court order was obtained. As a consequence, the government

intercepted petitioners’ conversations. Finally, petitioners al-

leged that because of the unlawful entries, the government

intercepted their conversations. Despite petitioners’ allegations,

they were denied standing under the Federal Wiretap Statute to

12 The District Court, in denying defendants’ standing, stated

that the Wiretap Statute did not govern unlawful entries of property

for the purpose of installing electronic monitoring equipment. (App.

at 63a). Inso stating, the court relied on United States v. Scafidi, 564

F.2d 635 (2d Cir. 1977), a case decided before this Court’s opinion in

Dalia. Interestingly, that court, in the context of discussing whether

certain defendants had standing “to object to allegedly unauthorized

entries to place or recharge the bugs,” said “[w]hatever the exact,

technical interests, or lack thereof, which these [defendants] had in

the premises entered by the agents, it seems artificial to say that a

person overheard, whose conversation would not have been over-

heard but for the entry, has no standing to move to suppress the

conversations on a claim that the entry was improper.” 564 F.2d at

638-39. In light of Dalia, the Wiretap Statute clearly accords standing»

to a person whose conversation is overheard to challenge the inter-

ception because it resulted from an unlawful entry, during which the

monitoring device making the interception was placed or information

was seized to allow the government to later install the monitoring

device.

challenge the interception of their conversations as a result of

the unlawful entries. This result undercuts the privacy interests

in communications and compels courts to condone conduct

condemned by this Court in Jrvine v. California, 347 U.S. 128,

132 (1954), as follows:

Each of these repeated entries... without a search warrant

or other process was a trespass, and probably a burglary,

for which any unofficial person should be, and probably

would be, severely punished. ... That officers of the law

would break and enter a home, secrete such a device, even

in a bedroom, and listen to the conversations of the

occupants for over a month would be almost incredible if it

were not admitted. ._Few police measures have come to our

attention that more flagrantly, deliberately and persistently

violated the fundamental principle declared by the Fourth

Amendment as a restriction on the Federal Government

that “The nght of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched and the persons or things to be seized.’’'3

13 The decision below relied on five cases in denying petitioners’

standing to challenge the interception of their conversations. Each

case, unlike this case, involved a prior incident, occurring separate and

apart from the conduct which defendants in those cases directiy

challenged, to which defendants had no standing to object under either

the Wiretap Statute or the Fourth Amendment. United States v.

Fury, 554 F.2d 522 (2d Cir. 1977), cert. denied, 436 U.S. 931 (1978)

(prior unlawful wiretap of which defendant was not a target or during

which defendant was not recorded); United States v. Williams, 580

F.2d 578 (D.C. Cir.), cert. denied, 439 U.S. 832 (1978) (same):

United States v. Wright, 524 F.2d 1100 (2d Cir. 1975) (same):

United States v. Chase, 692 F.2d 69 (9th Cir. 1982) (unlawful

detention. of co-defendant from which exigent circumstances were

developed to conduct a warrantless search of defendant’s home.

cannot serve as a basis for attacking subsequent search without

evidence that purpose of unlawful detention was to gain entry into

house ); United States v. Hanier, 652 F.2d 1374 (10th Cir. 1981) (no

( Footnote continued on following page)

LN UY

Sy ae Ne aT OPN TO

THE DECISION BELOW, IN CONTRAVENTION OF

OPINIONS OF THIS COURT AND THE COURTS OF

APPEALS WHICH HAVE CONSIDERED THE QUES-

TION, UNDERMINES THE CONGRESSIONALLY IN-

TENDED APPLICATION OF THE FEDERAL WIRETAP

STATUTE TO PERSONS WHOSE CONVERSATIONS

ARE INTERCEPTED UNDER THE STATUTE

Though the legislative history of the Federal Wiretap

Statute and the exclusionary remedy contained therein show

that Congress intended they generally “reflect existing law,”'4

the statute and its provisions clearly evidence a “congressional

effort to afford special safeguards against the unique problems

posed by misuse of wiretapping and electronic surveillance.”’'S

Unlike in the Fourth Amendment context, where the invasion

of privacy is completed when an unlawful intrusion has been

effected, the interception of communications involves an added

privacy intrusion through the disclosure or use of the informa-

tion after its seizure. Thus, in enacting the Wiretap Statute,

Congress intended its provisions to act not only as a deterrent to

future unlawful conduct as in the Fourth Amendment cases, but

also as a protection against the unauthorized disclosure of

seized information. To that effect, the statute expressly pro-

vides that communications intercepted in violation of its provi-

sions may not “be received in evidence in any trial, hearing, or

other proceeding in or before any court, grand jury, depart-

ment, Officer, agency, regulatory body, legislative committee, or

other authority of the United States, a State, or a political

( Footnote continued from preceding page)

standing of one defendant to object to search of motel room wherein

he had no expectation of privacy). Here, of course, the entire purpose

of the unlawful entries was to gather information to facilitate the

interception of petitioners’ conversations.

14$.Rep. No. 1097, 90th Cong., 2d Sess. 91 (1968).

1S United States v. Calandra, 414 U.S. 338, 355 n. il (1974).

ee ee ee ee

subdivision thereof.’’'§ This prohibition is central to the statute.

As the legislative history relates:

[The statute] imposed an evidentiary sanction to compel

compliance with [its provisions]. It provides that inter-

cepted wire or oral communications or evidence derived

therefrom may not be received in evidence in any proceed-

ing before any court, grand jury, department, officer,

agency, regulatory bedy, legislative. committee, or author-

ity of the United States, a State or a political subdivision of

a State, where the disclosure of that information would be

in violation of [the statute].

... [I]t is not limited to criminal proceedings. Such a

suppression rule is necessary and proper to protect privacy.

The provision thus forms an integral part of the system of

limitations designed to protect privacy. Along with the

criminal and civil remedies, it should serve to guarantee

that the standards of the new chapter will sharply curtail

the unlawful interception of wire and oral communications.

S.Rep. No. 1097, 90th Cong., 2d Sess. 96 (1968). (Citations

omitted). The exclusionary provision of the Wiretap Statute, of

course, far exceeds the judicially crafted exclusionary provision

of the Fourth Amendment.'7

This Court recognized the broader scope of the Wiretap

Statute in Gelbard v. United States, 408 U.S. 41 (1972). There,

the Court held that “grand jury witnesses ... are entitled to

invoke the prohibition of § 2515 as a defense to contempt

charges brought against them for refusing to testify.’8 In so

holding, the Court emphasized that an unauthorized disclosure

of seized information amounted to a separate injury to the

victim’s privacy interest '9 and that “§ 2515 [of the statute]

serves not only to protect the privacy of communications, but

18 U.S.C. § 2515.

17 United States v. Calandra. 414 U.S. 338 (1974).

18 Gelbard v. United States, 408 U.S. at 43.

19 Gelbard v. United States, 408 U.S. at 51.

also to ensure that the courts do not become partners in illegal

conduct ....”20 Thus, the Court reasoned that § 2515 which

played a crucial role in protecting against the use of disclosure

of communications that have been illegally seized, allowed a

grand jury witness to refuse to testify where his testimony was

sought on the basis of illegal electronic surveillance. Otherwise,

“disclosure through compelled testimony [of unlawfully moni-

tored communications would make] the witness the victim,

once again, of a federal crime.”2'

Premised on this Court’s decision in Gelbard, the Seventh

Circuit Court of Appeals in United States v. Dorfman, 690 F. 2d

1217 (7th Cir. 1982), accorded six nonparties to the case

standing to challenge the legality of intercepted conversations.

The facts of the case merit review. There, six nonparties who

were either targets of the electronic surveillance or intercepted

during the surveillance filed motions to suppress the intercepted

conversations in which they participated. Of the six persons,

the government intended to call one as a witness. The district

court denied the motions, holding that, since the challenged

conversations were not being used against the movants at trial,

they had no standing to move to suppress the conversations

under the Wiretap Statute. The district court reasoned that a

person against whom no evidence is ofered cannot seek the

application of the Fourth Amendment’s exclusionary rule.

Thus, since the Wiretap Statute “does not grant a suppression

remedy broader than that encompassed in general fourth

amendment law,” the nonparty movants could not seek

suppression of their intercepted conversations under the statute.

690 F. 2d at 1221.

On appeal, the Court of Appeals affirmed the district

court’s order denying the nonparties’ motion to suppress. In

doing so, however, the Court “narrow[ed] the bases of [the

district court’s] dispositions.”22 Interpreting the district court’s

20 Gelbard v. United States, 408 U.S. at 51-52.

21 Gelbard v. United States, 408 U.S. at 52.

22 United States v. Dorfman, 690 F.2d at 1225.

order as “an absolute bar (at least in criminal tnals) to

nonparty standing under the [ wiretap] statute,” the Court held

that the statute’s suppression remedy was “not simply coexten-

sive with” the Fourth Amendment exclusionary rule.23 Rather,

the suppression remedy of the statute, in addition to deterring

future unlawful interceptions by punishing the initial invasion

of privacy, also was intended to protect “against the use or

disclosure of communications that have been illegally seized.”’2¢

“This point [ according to the Court was] critical because under

[the statute], unlike the Fourth Amendment, the invasion of

privacy is not simply ‘over and done with’ when an unlawful

intrusion has been effected. Rather, the disclosure or use of

information obtained through such an intrusion amounts to a

separate injury to the victim’s privacy interest.”’25 Thus, the

Court said that“. . . a no-standing decision based on a movant’s

nonparty status must be responsible in some way to the risk of

disclosure of unlawfully seized communications.”26

Analyzed against the risk of disclosure, the Court found

that the district court did not err when it held that the nonparty

movants, all of whom constituted aggrieved persons under the

Wiretap Statute, had no standing to move to suppress their

conversations, because “even without the involvement of the

nonparties, the defendants were able to test the legality of the

interceptions of all the communications that the government

intends to use at trial.”2? Thus, the nonparties’ interests in

disclosure were safeguarded. The only thing of which they

were deprived by the district court denying them standing was

an opportunity to relitigate the legality of the interceptions of

their conversations. Under these circumstances, the legislative

23 United States v. Dorfman, 690 F.2d at 1227-28.

24 United States v. Dorfman, 690 F.2d at 1228.

25 United States v. Dorfman, 690 F.2d at 1228.

26 United States v. Dorfman, 690 F.2d at 1229.

27 United States v. Dorfman, 690 F.2d at 1229.

iii i

purpose of the Wiretap Statute was protected.28 However,

absent the opportunity to test the legality of interceptions

against claims of unlawfulness, the Court, in construing the

Wiretap Statute, found that the statute accorded nonparties

who constituted aggrieved persons standing to challenge the

interception of their conversations.29

The decision below, in denying petitioners’ standing to

move to suppress the interception of their conversations, based

upon the prior illegal entries, during which information was

seized tha: led to the installation of the monitoring devices that

intercepted the conversations, fails to address the nsk of

unauthorized disclosure at which the Federal Wiretap Statute is

directed. Specifically, the no-standing decision denies petition-

ers the opportunity to challenge the legality of their inter-

ceptions based upon admitted wilfull misconduct in obtaining

the interceptions. Unlike in Dorfman, neither petitioners, both

of whom are aggrieved parties under the statute, nor any other

party are capable of challenging the legality of the interceptions

of their conversations based on the decision below. As a result,

the decision below violates the Federal Wiretap Statute and

prior court precedent.

28 The Court of Appeals found particularly significant the fact

that one interceptee, who had a proprietary interest in the premises

surveilled, “had ‘standing to object to the conduct of the surveillance

as a whole.’” 690 F.2d at !229 n. 19. Here, no one, other than

petitioners, is available to attack the legality of the challenged

interceptions.

29 See also Anthony v. United States, 667 F.2d 870 ( 10th Cir.

1981), cert. denied, U.S. —__, 102 S.Ct. 2959, 73 L.Ed. 2d

1350 (1982), wherein the Tenth Circuit Court of Appeals accorded a

nonparty standing to object to the disclosure of challenged inter-

ceptions.

CONCLUSION

For the foregoing reasons, a write of certiorari should issue

to review the opinion of the United States Court of Appeals for

the Seventh Circuit affirming the trial court’s denial of petition-

ers’ motion for a new trial based on newly discovered evidence.

Respectfully submitted,

WILLIAM G. HUNDLEY

HUNDLEY & CACHERIS, P.C.

1914 Sunderland Place, N.W.

Washington, D.C. 20036

(202 )293-0224

Counsel for Petitioner O'Malley

RosBert M. STEPHENSON

CorTsirRiILos & CROWLEY, LTD.

33 North Dearborn Street

Suite 930

Chicago, Illinois 60602

(312)263-0345

Counsel for Petitioner Massa

APPENDIX

Zn the

United States Court of Appeals

Bor the Seventh Cirrnit

Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Uv.

Roy L. WILLIAMS, THoMAS F. O’MALLEY,

ANDREW G. MASSA, JOSEPH LOMBARDO,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Dlinois, Eastern Division.

No. 81 CR 269—Prentice H. Marshall, Judge.

ARGUED JANUARY 5, 1984—DECIDED JUNE 8, 1984

Before ESCHBACH, POSNER and CoFFEY, Circuit Judges.

ESCHBACH, Circuit Judge. Roy Williams, Joseph Lom-

bardo, Thomas O’Malley, and Andrew Massa appeal from

convictions on all 11 counts of an indictment charging

conspiracy to bribe a United States Senator, 18 U.S.C.

§ 371, interstate travel to promote the bribery, 18 U.S.C.

§ 1952, and wire fraud, 18 U.S.C. § 1843. Only Lombardo

attacks the sufficiency of the evidence. All defendants,

however, contend that the district court erred (1) in deny-

ing a motion to suppress evidence obtained through elec-

tronic surveillance, (2) in ruling on several evidentiary

ial

2 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

matters, (3) in handling ex parte juror contacts, (4) in in-

structing the jury, and (5) in denying a request for a new

trial. Finding no merit in these contentions, we affirm.

Many aspects of this case are extraordinary. For in-

stance, the trial lasted nearly two months, and the jury

charge an hour and a half. Moreover, the parties made

over 200 written motions to the district court, which gave

each motion individual attention. Amid this complexity,

the government’s theory of criminal culpability is strik-

ingly clear: the defendants, Allen Dorfman,! and William

Webbe, an unindicted co-conspirator, devised and pursued

a scheme to bribe a United States Senator at the expense

of the Teamsters’ Central States Pension Fund.? View-

ing the evidence in the government’s favor, see Glasser

v. United States, 315 U.S. 60, 80 (1942), we now describe

the events that support this charge and the defendants’

convictions.

The Teamsters’ Central States Pension Fund (‘‘Pension

Fund” or “Fund’’) is an organization created by and

funded pursuant to collective bargaining agreements be-

tween the Teamsters Union and employers. As the name

implies, the Pension Fund pays benefits to retired union

members. In 1972, the Pension Fund acquired what_is

known as the Wonderworld property—a 5.8 acre plot of

land in Las Vegas, Nevada. The Pension Fund, however,

lost. direct control over the management and disposition

of this property in 1977, when the Victor Palmieri Com-

pany (“Palmieri”) was retained to manage the Fund’s real

estate assets. The Pension Fund’s trustees, as part of an

1 Dorfman was named, and found guilty as charged, in all counts

of the indictment. He was murdered prior to sentencing and the

case against him was dismissed as moot. In this opinion, the term

“defendants” will refer to the appellants, not Dorfman.

2 The full name of this entity is “Central States, Southeast and

Southwest Areas Pension Fund.”

NEE

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 3

83-2206, 83-2207, 83-2208, 83-2229

effort to retain the Fund’s tax-exempt status, relinquished

managerial control to Palmieri and retained only the right

to monitor Palmieri and to remedy breaches of fiduciary

duties. |

In 1978, when Palmieri decided to sell the Wonderworld

property, nearby homeowners became concerned that a

high-rise building would be constructed on the land. The

homeowners thus organized and selected as their spokes-

man Senator Howard Cannon, whose home was across the

street from the Wonderworild property. The group decided

to purchase the land with a view toward having the prop-

erty “down-zoned.” At a homeowners’ meeting, Senator

Cannon offered to call Allen Dorfman to discover whether

the group could buy the property directly from the Pen-

sion Fund. At the time, Allen Dorfman was not formally

associated with the Fund; however, his insurance com-

pany, which had offices in the same building that housed

the Pension Fund, previously insured many of the Fund’s

assets. Senator Cannon also suggested that his son-in-law,

Robert Bjornsen, could serve as the group’s agent for the

Wonderworld transaction. The homeowners agreed and

Bjornsen initiated contacts with Palmieri in late December

of 1978.

On January 8, 1979, Palmieri invited sealed bids from

parties who had expressed interest in the Wonderworld

property. The bid-solicitation letter stated several condi-

tions, including that the minimum bid was $1,400,000.

Before Bjornsen submitted a bid on benalf of the home-

owners, however, Senator Cannon met in his Las Vegas

office with Allen Dorfman, Roy Williams, then an inter-

national vice-president of the Teamsters Union,? and

Edward Wheeler, a lawyer who represented the Team-

sters on legislative matters.

3 Roy Williams subsequently became the international president

of the Teamsters, but resigned that position as a condition to re-

main free pending appeal. See United States v. Williams, 565 F.

Supp. 350, 353 n.1 (1983).

}

4 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

At this meeting, which occurred on January 10, 1979,

Wheeler voiced the Teamsters’ objections to the deregula-

tion of the trucking industry—a nascent proposal in Con-

gress. After he completed his presentation, Wheeler

heeded Williams’ request and left the Senator’s office.

Williams, Dorfman, and Senator Cannon continued to meet

for another 25 to 45 minutes. The three men discussed

the Wonderworld property and the homeowners’ effort

to purchase the land. Williams and Dorfman, seeking to

influence Senator Cannon’s actions and decisions om the

deregulation legislation, offered the Senator and his group

the exclusive right to purchase the Wonderworld prop-

erty at a price of $1,400,000. Over the next four months,

the defendants, Allen Dorfman, and Dorfman’s associate

William Webbe, worked to keep this promise.

Robert Bjornsen, on behalf of the homeowners, sub-

mitted to Palmieri a $1,400,000 bid on January 12, 1979.

The bid, however, was rejected for failure to conform to

Palmieri’s requirement of full payment within one year.

Palmieri also rejected a $1,600,000 bid from investor Allen

Glick because he failed to submit the requisite personal-

finance statement. Receiving no complying bids, Palmieri

decided te pursue further negotiations with Bjornsen, the

homeowners’ agent, and Glick, the high bidder.

Palmieri and Glick appeared to reach an agreement.

Glick orally made a new offer for $1,600,000 and agreed

to raise the down payment from $400,000 to $800,000. On

January 29, 1979, a Palmieri representative accepted this

offer and closing documents were mailed to Glick’s at-

torney. Before the purchase agreement was executed,

however, Glick withdrew his offer.

A concerted effort by the four defendants led to Glick’s

withdrawal. Early in the afternoon on January 30, 1979,

Joseph Lombardo, whose vocational status is something

of a mystery, made a proposal to Allen Dorfman to send

people from the Pension Fund to speak with Glick. In par-

ticular, Lombardo named as emissaries Thomas O’Malley,

then a trustee of the Fund, and Andrew Massa, a former

Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

trustee. Roy Williams approved the trip and made an air-

plane available to O’Malley and Massa.

Later that same day, O’Malley and Massa did fly to

California to meet with Glick. During a dinner meeting,

O’Malley and Massa frankly described their intentions.

They told Glick that a homeowners’ group headed by

Senator Cannon wanted to buy the Wonderworld prop-

erty. The two men further informed Glick that there was

legislation pending before a Senate committee chaired by

Senator Cannon that would harm the trucking industry

and that they wanted the legislation defeated. To secure

Senator Cannon’s appreciation, therefore, O’Malley and

Massa asked Glick to withdraw his $1,600,000 offer. Glick

readily agreed to withdraw the outstanding offer, but

made it known that his partner, Fred Glusman, might

wish to continue his own efforts to purchase the property.

The next day Glick withdrew the offer on the Wonder-

world property and suggested to Glusman that he refrain

from individually pursuing the land. From the conspira-

tors’ point of view, therefore, rhe appeared promis-

ing 0 on February 9, 1979, when Bjornsen submitted another

offer on behalf of the hoembraaire. The purchase offer was

again for $1,400,000 and included a sizeable commission

to be paid to Bjornsen’s company. Undeterred by Glick’s

suggestion, however, Glusman made an offer for $1,600,000.

Accordingly, the homeowners’ offer was rejected and

Palmieri proceeded to close the deal with Glusman.

Before the deal was completed, Glusman was again con-

tacted by Glick who told Glusman not to “fight city hall.”

Evidently not prepared for such a contest, Glusman with-

drew his offer on February 15, 1979. Thus by the begin-

ning of March, the slate was clean and Palmieri resumed

negotiations with Bjornsen.

By that time, however, it seemed plain that the

Wonderworld property would be “down-zoned”; conse-

quently, the homeowners’ group lost interest in buying

the property and disbanded. Dorfman and Webbe, deter-

mined to keep a promise made to Senator Cannon, then

6 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

helped Bjornsen find a new partner for the desired pur-

chase—Robert L. Smith, who was a Las Vegas contrac-

tor and business associate of Dorfman. Bjornsen submitted

a series of three bids on behalf of “Robert L. Smith”;

each was for $1,400,000 and each was rejected by Palmieri

for providing an insufficient down Bos. nergy Throughout

this final stage of the conspiracy, Dorfman and Williams

lamented their inability to fulfill the commitment made

to Senator Cannon. Yet as late as May 21, 1979, Dorrf-

man assured the Senator that the deal was still “‘wide

open.”

On May 25, 1979, Palmieri accepted American National

Development Corporation’s offer to purchase the Wonder-

world property for $1,600,000. On July 2, 1979, the prop-

erty was sold to that corporation.

On May 22, 1981, the defendants were charged in all

counts of an 1l-count indictment. Count I charged the

defendants with a conspiracy to bribe a United States

Senator, 18 U.S.C. § 371. Count IT charged the defendants

with causing O’Malley and Massa to travel in interstate

commerce to California, with the intent to promote the

bribery, 18 U.S.C. § 1952. Counts III to XI charged the

defendants with the use of interstate wires for the pur-

pose of executing a scheme to defraud the Pension Fund

of its “right to the conscientious, loyal, faithful, disin-

terested, and unbiased services of Thomas F.. O’Malley,”’

18 U.S.C. § 1348.

The district court denied the defendants’ motions to

dismiss the indictment, see United States v. Dorfman, 532

F. Supp. 1118 (1981), and to suppress evidence obtained

through electronic surveillance, see United States v. Dorf-

man, 542 F. Supp. 345 (1982). A jury trial was held and

the defendants were found guilty as charged in all counts

of the indictment. Williams received the maximum sen-

tence of 55 years in prison, but this sentence was imposed

pursuant to 18 U.S.C. § 4205(c) to permit a study of

Williams’ health. The district court indicated that when

the study is complete, Williams’ sentence will be reduced.

Nos. 83-1642, 83-1648, 83-1644, 83-1660, i

83-2206, 83-2207, 83-2208, 83-2229

Lombardo was sentenced to a prison term of 15 years,

O’Malley to a term of 30 months, and Massa to one year.

Il.

The government’s evidence at trial consisted in large

measure of conversations surreptitiously intercepted and

recorded pursuant to court orders and the provisions of

Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U.S.C. §§ 2510 to 2520 (‘Title III’). The

defendants, blending constitutional and statutory argu-

ments, maintain that this evidence was illegally obtained

and introduced at trial. Before we address these argu-

ments, however, we briefly describe the government’s

electronic investigation.

On January 29, 1979, the government, through a special

attorney for the Department of Justice, applied for Title

III authority to place a wiretap on telephones at the

Amalgamated Insurance Agency, which was Dorfman’s

place of business. The application stated that there was

probable cause to believe that Dorfman and others were

illegally “conspiring to establish, promote, manage, and/or

receive compensation from hidden interests in one or more

Reno and Las Vegas, Nevada, gambling casinos.” 542 F.

Supp. at 370. The application, which was made to the

Chief Judge of the United States District Court for the

Northern District of Illinois, was supported by an affi-

davit of FBI Special Agent Peter Wacks. Wacks’ affidavit,

in turn, was based on reports from six confidential infor-

mants and one James Fratianno. The Chief Judge granted

the application and the surveillance commenced.

The initial surveillance order expired after 30 days; thus

on March 1, 1979, the government applied to the district

court for authority to continue intercepting telephone calls.

This application repeated the initial allegations concern-

ing hidden interests in casinos. The application, however,

8 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

added the Aladdin hotel-casino to the list. This new al-

legation was made in an affidavit of Special Agent Wacks

and supported by transcripts of conversations intercepted

pursuant to the initial court order. The Chief a

granted the March 1, 1979, application and authorized 30

more days of wiretaps.

A series of 30-day authorizations followed throughout

1979 and into 1980. Not until the application of April 28,

1979, did the government allege that Dorfman and others

were involved in a conspiracy to bribe Senator Cannon.

We disclose this brief history by noting that on April 7,

1979, the government obtained its most effective Title ITI

authority—a court order that permitted the placement of

electronic-listening devices in the offices of Dorfman and

William Webbe.

The defendants have brought up from the district

court’s suppression proceedings essentially two arguments.

First, they assert that the government’s March 1, 1979,

application did not satisfy Title III’s uirements and,

in any event, was supported by an affidavit containing

a deliberate or reckless misrepresentation. Second, they

contend that the Fourth Amendment required the sup-

pression of conversations recorded prior to April 28, 1979,

when the government first alleged the existence of a con-

spiracy to bribe Senator Cannon. We now consider, and

timately reject, these positions.

The government supported its March 1, 1979, Title III

application with the same allegations and probable-cause

showing made to obtain the original surveillance order.

An extension application is not complete, however, if it

only duplicates the original submission. The authorizing

judge must be sufficiently informed about the results of

the prior interceptions to answer intelligently the ques-

tion whether probable cause exists to believe relevant con-

versations will be intercepted in the future. Accordingly,

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 9

83-2206, 83-2207, 83-2208, 83-2229

18 U.S.C. § 2518(1Xf) requires that the extension applica-

tion contain a statement of results previously obtained,

or an explanation of the failure to obtain results. Ruling

on the defendants’ motion to suppress, the district court

held that the government’s application of March 1, 1979,

fy og contain the required explanation.” 542 F. Supp.

at 374. :

The government asserts that the district court over-

looked a statement in the March 1, 1979, application that

“{djuring the entire period of this court’s order for the

interception of wire communications, the main subject of

the investigation, Allen Dorfman, was out of the State

of Illinois.” In the government’s view, this declaration is

a “reasonable statement of the failure to obtain. . . re-

sults,” 18 U.S.C. § 2518(1Xf).

There is good reason to doubt that the brief reference

to Dorfman’s absence was sufficient to satisfy 18 U.S.C?

§ 2518(1Xf). For instance, the statement was made in the

context of (incorrectly) asserting that conversations relating

to the January 29, 1979, allegations had been intercepted.

We would thus hesitate to hold that the government’s ap-

plication fairly explained the results of prior surveillance

to allow an intelligent probable-cause determination. We

need not so hold, however, because the March 1 applica-

tion was not founded solely on a renewal of the initial

(January 29) allegations.

As we noted above, allegations concerning the Aladdin

hotel-casino were made first in the March 1 application.

Special Agent Wacks alleged in his affidavit that the FBI

had none 5° conversations pursuant to the January 29

wiretap order that “concerned the promotion and man

ment of hidden and unlawful interests in the Aladdi

hotel-casino.”” Wacks provided the court with transcripts

of the conversations, biographical information on the par-

ticipants, and the meaning of certain veiled references.

Wacks’ allegations and the transcripts of conversations

formed an ample basis for the Chief Judge’s probable-

10a

10 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

_ 83-2206, 83-2207, 83-2208, 83-2229

cause finding under § 2518(8).4 The one-month-old allega-

tions concerning other casinos were surplus, and any

failure to explain the iack of intercepted calls to substan-

tiate the January 29 allegations was rendered immaterial.

Apart from the purportedly inadequate § 2518(1Xf) explana-

tion, the defendants cite, and we have discovered, no

other statutory deficiency in the government’s March 1

submissions. All predicates for a Title III order were thus

satisfied and the Chief Judge properly issued the wire-

tap authorization.

The Supreme Court’s decision in United States v. Gior-

dano, 416 U.S. 505 (1974), which is cited by the defen-

dants, does not compel a contrary conclusion. The Court

in that case suppressed evidence intercepted under a Title

III extension order because the extension was dependent

on evidence illegally obtained pursuant to an initial order.

The instant case, by contrast, involves only valid orders

issued on applications meeting Title III’s requirements.

There is no basis for ——e the suppression remedy to

punish the government for a deficient (if it was) § 251&(1Xf)

statement, which was inessential to the showing of proba-

ble cause and the issuance of the March 1 wiretap order. |

)

Special Agent Wacks’ allegation in his March 1 affidavit

that conversations were intercepted concerning the “‘pro-

motion and management of hidden and unlawful financial

interests in the Aladdin hotel-casino” proved to be false.

The conversations allegedly involving the Aladdin hotel-

casino turned out to involve the defendants’ and Allen

ro Dorfman’s efforts to direct the Wonderworld property to

the homeowners’ group headed by Senator Cannon. The

defendants use this misrepresentation as their primary

weapon in the attack on evidence intercepted pursuant

to the March 1 wiretap order.

* In a footnote the defendants assert that the March 1 materials

did not establish probable cause. For the reasons expressed by

the district court, see 542 F. Supp. at 375-76, we disagree. See

also infra pp. 12-13.

hieeseeeniineneieeeteimnaieeammaiel

lla

Nos. 83-1642, 83-1643, 83-1644, 83-1660, ll

83-2206, 83-2207, 83-2208, 83-2229

In challenging Wacks’ affidavit in the district court,

the defendants’ task was defined by Franks v. Delaware.

438 U.S. 154, 171 (1978): they had to prove that the

Aladdin allegations were intentional lies or made with

reckless disregard for the truth.5 See also United States

v. Gaertner, 705 F.2d 210, 212 (7th Cir. 1983), cert. denied,

104 S. Ct. $79 (1984). We know what intentional! lies are,

but the meaning of “reckless disre for the truth’’ is

not self-evident, and the Court in Franks did not define

the concept. We do know, however, that recklessness is

not ty pene see Franks, 438 U.S. at 171, and that the

Court has clarified the notion of reckless disregard in the

context of First Amendment cases involving libel. We thus

agree with the District of Columbia Circuit, see United

States v. Davis, 617 F.2d 677, 694 (1979), that the First

Amendment definition should be applied by analogy in the

Franks setting. Accordingly, to prove reckless Eereseré

for the truth, the defendants had to prove that the af-

fiant “in fact entertained serious doubts as to the truth

of his” allegations. St. Amant v. Thompson, 390 U.S. 727,

731 (1968). Sienbe states of mind must be proved circum-

stantially, a factfinder may infer reckless disregard from

circumstances evincing “obvious reasons to doubt the

veracity” of the allegations. See id. at 732.

The district court held an extensive evidentiary hear-

ing, applied the correct legal standards, and found that

the defendants “failed to demonstrate that the incorrect

March 1 Aladdin allegations were either intentional mis-

representations, or made with reckless disregard for the

truth.” United States v. Dorfman, 542 F. Supp. at 381.

We may disturb this finding only if, after a review of the

record, we find it clearly erroneous. See United States v.

Wuagneuxz, 683 F.2d 1348, 1355 (llth Cir. 1982), cert.

denied, 104 S. Ct. 69 (1983); United States v. Lefkowntz,

618 F.2d 1313, 1317 (9th Cir.), cert. denied, 449 U.S. 824

5 A challenged statement must also be material in the sense that

without it, no probable cause was established. The Aladdin allega-

tions fit this definition of materiality.

Sn Or es

12a

12 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

(1980); United States v. Cruz, 594 F.2d 268, 272 (1st Cir.),

cert. denied, 444 U.S. 898 (1979).

A review of conversations intercepted pursuant to the

January 29 wiretap order demonstrates that the govern-

ment’s Aladdin allegations were not manufactured from

whole cloth. On January 31 and February 1, the govern-

ment intercepted communications between one “Sandy”

and David Dorfman, Allen Dorfman’s son and associate.

On January 31, the two discussed an attempt being made

by Colonial Commercial Credit Corporation to refinance

the Aladdin hotel-casino. They expressed concern about

a competing refinancing proposal and a mysterious

“source” of funds. The conversation intercepted on

February 1 indicates that Sandy talked about the Aladdin

with Allen Dorfman, who stated that the “deal” was

“dead,” but who still planned a future meeting regard-

ing the matter.

Beginning on January 30, and continuing throughout

February, the government also intercepted calls concern-

ing a “bid” on a piece of property. Allen Dorfman, Joseph

Lombardo, William Webbe, and another person were over-

heard on January 30 talking about sending Thomas

O’Malley and Andrew Massa to speak with an unnamed

person about a “bid” that they wanted “‘handled.” In a

series of calls that followed, the government learned more

about the handling of this bid: a man named Glick was

the bidder on the property and Allen Dorfman succeeded

in securing Glick’s withdrawal. The government further

learned on February 13 that a bid had been rejected by

“Palmieri.”

The conversations by themselves could have led a rea-

sonable person to conclude that Allen Dorfman and his

associates were involved in an effort to acquire, promote,

or manage a hidden interest in the Aladdin hotel-casino.

And Special Agent Wacks’ investigation revealed further

facts to support such a thesis. He learned that the “Glick”

in the conversations was Allen Glick, the president of

Argent Corporation, which owned several Las Vegas

13a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 13

83-2206, 83-2207, 83-2208, 83-2229

hotel-casinos. Wacks also learned that ‘‘Palmieri’”’ was a

firm that managed the Pension Fund’s real estate assets,

that the Pension Fund made loans to and had an interest

in the Aladdin, and that O’Malley and Massa were Pen-

sion Fund officials. In light of the confluence of factors

pointing to the Aladdin hotel-casino, and deferring to the

district court’s opportunity to observe the testimony of

Special Agent Wacks and other investigators, we cannot

term clearly erroneous the finding that the government’s

March 1 Aladdin allegations were not intentional or reck-

less misrepresentations.

The defendants primarily point to two items as com-

pelling a contrary result. First, they note that Special

Agent Wacks erroneously stated in his March 1 affidavit

that conversations substantiating the original January 29

allegations had been intercepted. The district court,

however, accorded this fact “marginal probative value,”

542 F. Supp. at 381 1.37, and we will not reweigh the

evidence on appeal. Second, the defendants accord great

sa ate to the fact that by March 1, Special Agent

acks and other investigators knew that the “bid” re-

ferred to in the conversations was not on the Aladdin but,

rather, on some “golf course” property. The March 1 af-

fidavit, however, did not state that the bid was on the

Aladdin. The Fal os gave the Chief Judge the tran-

scripts and only alleged that the conversations “concern”

a hidden interest in the Aladdin hotel-casino. This lan-

is consonant with the investigators’ view that some-

how the machinations involving the “golf course’ prop-

erty also concerned a hidden interest in the Aladdin.

Nothing in the transcripts is inconsistent with this view

and, given the veiled nature of the discussions, the gov-

ernment could hardly be expected to have defined the con-

nection more explicitly. Finally, two additional pieces of

evidence support the finding that the investigators truly

believed a link existed between all the conversations con-

tained in the March 1 application: summaries of the “bid”’

conversations were coded into FBI files on both the

Aladdin and “golf course” properties; and a telegram sent

l4a

14 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

from the FBI’s Chicago office to the Director on February

14, 1979, stated that the “bid” calls “relate to” the

Aladdin.

The defendants argue, nevertheless, that the govern-

ment was constitutionally obliged to make a ‘complete

and total disclosure” to the Chief Judge. Accordingly, they

conclude, the government’s failure to inform the Chief

Judge that the “bid” in the conversations was not directly

on the Aladdin mandates suppression.

We acknowledge that the rationale of Franks applies

to omissions and that several courts have permitted

litigants to challenge affidavits on the ground that facts

were omitted.® See, e.g., United States v. Lefkowitz, 618

F.2d 1813, 1317 (9th Cir.), cert. denied, 449 U.S. 824

(1980); United States v. Vazquez, 605 F.2d 1269, 1282 (2d

Cir.), cert. denied, 444 U.S. 981 (1979); United States v.

House, 604 F.2d 1135, 1141 (8th Cir. 1979), cert. denied,

445 U.S. 931 (1980); United States v. Lace, 502 F. Supp.

1021, 1046 (D. Vt. 1980). These courts recognize, however,

that the omitted fact must be material—that is, if the fact

were included, the affidavit would not support a finding

of probable cause. See Lefkowitz, 618 F.2d at 1317; Vaz-

quez, 605 F.2d at 1282; House, 604 F.2d at 1141. It is

further plain that if the challenger is permitted to marshal

all exculpatory facts, fairness dictates that the government

be allowed to support the affidavit with additional in-

culpatory information known to the affiant at the time

the affidavit was made. Cf. 2 W. LaFave, Search and

Seizure § 4.4, at 20 (Supp. 1983).

Judging the omission in this case by these standards,

we hold that the omission did not reach the level of con-

stitutional materiality. The transcripts included in the

March 1 affidavit reveal that the “bid” was for $1,600,000.

A reasonable judge would recognize that this figure is too

6 Such a Franks challenge is predicated, of course, on proof that

the omission was made intentionally or with reckless disregard.

See United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980).

15a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 15

83-2206, 83-2207, 83-2208, 83-2229

low to be a direct offer to purchase the Aladdin hotel-

casino; thus the bid and the Aladdin must, at best, be

indirectly connected. Consequently, the omitted fact—that

the bid was not on the Aladdin—was of marginal value

and constitutionally insignificant when measured against

the substantial evidence linking the bid conversations and

the Aladdin, see supra pp. 12-13.

The defendants mount a broader and more creative

challenge to the admissibility of 38 conversations in-

tercepted prior to April 28, 1979, when the government

first alleged in a Title III application a conspiracy to bribe

Senator Cannon. The challenge is founded on the Fourth

Amendment’s requirement that a search warrant “par-

ticularly describ(e] the place to be searched, and the...

things to be seized.” Before we address the heart of this

ent, however, we must describe what the defen-

dants are not challenging.

The defendants do not find unconstitutionally vague

either the government’s Title III applications or the Chief

Judge’s orders. Indeed, Congress requires in Title III that

every application contain information detailing the offense

under investigation, the nature and location of the prop-

erty where the interception is to occur, the type of con-

versation sought to be intercepted, and the persons

oo t to be committing the alleged offense. See 18

U.S.C. § 2518(1XbXi-iv). In addition, any order authoriz-

ing interception must contain ‘‘a particular description of

the type of communication sought to be intercepted, and

a statement of the particular offense to which it relates.”

Id. § 2518(4Xe).

Similarly, the defendants do not assert that the gov-

ernment violated constitutional or statutory law in

overhearing and recording the 33 challenged conversa-

tions. Section 2518(5), which finds its roots in the Fourth

Amendment, mandates that “[elvery order and extension

l6a

16 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

thereof . . . shall be conducted in such a way as to

minimize the interception of communications not otherwise

subject to interception under this chapter.” Government

agents, however, “can hardly be expected to know [which]

calls are not pertinent prior to their termination.” Scott

v. United States, 436 U.S. 128, 140 (1978). When the in-

vestigation is of a suspected large-scale conspiracy, and

when the suspects speak in veiled terms, the government

is justified in intercepting conversations that eventually

prove to be without the scope of the Title III authoriza-

tion. See id. at 140-41; United States v. Quintana, 508

F.Zd 867, 874 (7th Cir. 1975); United States v. James, 494

nae 1007, 1019 (D.C. Cir.), cert. denied, 419 U.S. 1020

(1974).

The defendants do make a distinction between intercep-

ting conversations and using conversations as evidence in

a criminal prosecution. Noting that the government was

authorized to search for evidence of hidden interests in

casinos, but intercepted 33 conversations relating to dif-

ferent charges, they argue that “conversations that have

been ‘seized’ out of necessity in recorded form... must

be embargoed and thereafter made unavailable to the

investigating government agents.” The constitutional in-

firmity arose, in the defendants’ view, not when the con-

versations were recorded, but when the government made

investigative and evidentiary use of the conversations.

The defendants must, to succeed in this argument, sur-

mount the obstacle of the “plain view” doctrine, which

authorizes the seizure of evidence not described in a war-

rant. To this end, the defendants note that an item in

plain view may be seized only if there is probable cause

to believe that the item is evidence of criminality, see

Texas v. Brown, 103 S. Ct. 1535 (1983). Their argument

concludes with. a review of the 33 conversations, which

the defendants describe as facially innocuous.

The defendants’ rigid application of traditional search-

and-seizure principles is ironic; surely it is inconsistent to

demand a flexible interpretation of the Fourth Amend-

17a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 17

83-2206, 83-2207, 83-2208, 83-2229

ment to afford some constitutional limits on the intercep-

tion of conversations, and then to insist on a rigid reading

when the needs of effective law enforcement are con-

sidered. Irony aside, we believe that it is evident that

the defendants would have us apply a “‘plain view” prin-

ciple—i.e., only items apparently evidence of a crime may

be seized—in a manner never intended by the Supreme

Court. The principle defines permissible seizures, not per-

missible uses of items lawfully seized. But as noted above,

the defendants do not challenge the initial recording

(search and seizure) of the 33 conversations, only the gov-

ernment’s use of the evidence. Moreover, there is good

reason to doubt that the plain view doctrine, as current-

ly developed, should be applied to electronic interceptions

of conversations. The plain view doctrine is concerned

about the Fourth “Amendment’s limitations upon seizures

of personal property,” whereas the interceptions in this

case might be thought of as more like an “officer’s obser-

vation of an item left in plain view, [which] involves no

Fourth Amendment search.” Texas v. Brown, 103 S. Ct.

at 1541 n.4.

Were we to apply traditional search-and-seizure prin-

ciples in this case, we could note that an officer perform-

ing a lawful search may, on “reasonable suspicion,” con-

duct closer examination of an item in plain view, see

United States v. Wright, 667 F.2d 793, 797-98 (9th Cir.

1982); if by the end of the search there is probable cause

to believe that the item is evidence of a crime, it may

be seized. See United States v. Schire, 586 F.2d 15, 19

(7th Cir. 1978). We could also note that the 33 challenged

conversations are “suspicious” and that the government’s

Title III search continued long after the criminal character

of the conversations was known. Accordingly, we could

hold that the conversations were properly seized and used

by the government. This reasoning, however, is just as

artificial and inappropriate as the defendants’ analysis. A

more sensitive, less doctrinaire, inquiry is required.

The basis of modern Fourth Amendment law is the Su-

preme Court’s understanding of “the right to privacy.”

18a

18 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207. 83-2208, 83-2229

See Oliver v. United States, 52 U.S.L.W. 4425, 4427 (U.S.

April 17, 1984). The defendants suggest that the mainte-

nance of a “‘library . . . of recordings of conversations”

is a practice of constitutional concern apart from the in-

itial interception (overhearing) of the communications.

Stripped to its core, therefore, the defendants’ argument

is that the Fourth Amendment prevents the government

from reviewing lawfully recorded conversations for evi-

dence of a charge not alleged in the Title III application.

We find little merit in this argument. It is settled that

“once police are lawfully in a position to observe an item

first-hand, its owner’s privacy interest in that item is

lost.”” Illinois v. Andreas, 103 S. Ct. 3319, 3824 (1988).

Moreover, it has long been clear that “(pjrotecting the

risk of misdescription hardly enhances any legitimate

privacy interest,” United States v. Jacobsen, 104 S. Ct.

1652, 1659 (1984); thus a government agent may constitu-

tionally record conversations lawfully overheard. See Lopez

v. United States, 373 U.S. 427 (1963). The nature of the

privacy interest assertedly harmed by the government’s

review of conversations lawfully recorded, therefore, is

difficult or impossible to define.

We need not rule that, in all cases, the government may

review its “library of conversations” to corroborate

charges not made before the Title III authorizing court.

But in a case of a continuing investigation such as this,

in which the government’s review of the conversations

romptly ripened into formal allegations justifying further

tle III orders, we cannot conclude that the government’s

conduct was unreasonable and consequently unconstitu-

tional.

Finally, we note that Title III itself has a mechanism

to limit and assure the reasonableness of the government’s

use of other-crimes evidence. Section 2517(5) provides that

before evidence can be used in the prosecution of an of-

fense different from the one named in the original applica-

tion, a separate application must be made to the court.

See generallly United States v. Brodson, 528 F.2d 214,

19a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 19

83-2206, 83-2207, 83-2208, 83-2229

215 (7th Cir. 1975). The application must be “made as soon

as practicable,” § 2517(5), and judicial approval requires

“a showing that the original order was lawfully obtained,

that it was sought in good faith and not as a subterfuge

search, and that the communication was in fact incidental-

ly intercepted during the course of a lawfully executed

order.” S. Rep. No. 1097, 90th Cong., 2d Sess. 66,

reprinted in 1968 U.S. Code Cong. & Ad. News 2112,

2189: see United States v. Vento, 533 F.2d 838, 855 (8d

Cir. 1976). The defendants do not raise a § 2517(5) argu-

ment on appeal.

ITl.

The defendants raise a variety of evidentiary arguments.

They assert that the district court erred in admitting as

substantive evidence portions of William Webbe’s grand-

jury testimony and in finding that statements made at

a meeting in Dorfman’s office on May 21, 1979, were in

furtherance of the conspiracy to bribe Senator Cannon.

As we stated in Part I of this opinion, Allen Dorfman’s

associate and employee William Webbe played a central

role in the conspiracy to bribe Senator Cannon. Webbe

escaped prosecution, however, because he was granted im-

munity and compelled to testify before the grand jury and

at trial. A synopsis of some of that testimony is needed

to understand the defendants’ first evidentiary argument.

During the first day of his grand-jury testimony, it be-

came clear that Webbe was a recalcitrant witness unwill-

ing to confirm information that the government learned

from its electronic investigation. The prosecutor, neverthe-

less, focused on the January 10, 1979, meeting in Las

Vegas between Senator Cannon, Allen Dorfman, and Roy

Williams. Webbe, who waited outside the Senator’s office

during the meeting, was asked what occurred when the

three men emerged from the office. Webbe testified before

20a

Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

the grand jury: “I got introduced to the Senator... . and

that was it.”

On the second day before the grand jury, Webbe was

confronted with a recording of a conversation he had with

Allen Dorfman and Don Peters on May 21, 1979. The con-

versation, which occurred in Dorfman’s office, concerned

the January 10 meeting with Senator Cannon in Las

Vegas. The conversers were overheard saying:

DORFMAN:

WEBBE:

DORFMAN:

WEBBE:

DORFMAN:

Well, the only bad part about the whole

thing see if we had said to him, well

let’s look into it, you know, because now

it’s really not under the custody and con-

trol of the fund anymore, and so on and

so forth. But Roy Williams just unequiv-

ocally came right out and says, you got

the property Senator, don’t worry about

it. It’s our property, you own it. You got

a commitment from him.

You take care of your end.

And I turned to Roy, cause he verified

it the other day, I said Roy, we made

a firm commitment to this guy. This

wasn’t an if-come deal. I said if it’s gon-

na be an if-come deal, you tell a guy it’s

an if-come deal, and he can conduct him-

self accordingly. I said, but we made a

firm commitment. And even when we

were walking out of his office, and after

he said you know that, uh, I, uh,...

gee ...I hope I have a series of dif-

ferent items that he wanted, you know,

to help him on the, on the deregulation.

And then so on... no, you were stand-

ing there.

I was there.

And, uh, you’ll have everything, and he

says and you fellows will take care of

2la

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 21

83-2206, 83-2207, 83-2208, 83-2229

that property thing? Don’t worry about

it’s all taken care of.

WEBBE: Roy said you take care of your end and

we'll take care of our end for you.

DorFMAN: That’s right.

Confronted with this conversation and again asked what

occurred when the January 10 meeting ended, Webbe tes-

tified before the grand jury: “I think they said, ‘Bring

up some points,’ or something like that, ‘or some ideas

that you have,’.. .”

On Webbe’s fourth and last day before the grand jury,

he was again confronted with the May 21 recording. The

prosecutor then elicited the following testimony:

Q. Now, we have been over this a few times, Mr.

Webbe, but just so I have it clear, isn’t it fair to

say that a summary of this conversation, so we all

know what you talked about, was that upon exiting,

Cannon indicated to Dorfman, “You fellows will take

care of that property thing,” and Allen replied,

“Don’t worry about it. It is all taken care of.

A. That’s correct, sir.

Q. That is when Roy said, “You take care of your

end, and we'll take care of ours,” correct?

A. That’s correct.

Q. Then the Senator went on and said about the

deregulation, ‘“You give me some of your input, and

we can come around and work this thing out

together.”

A. Yes.

Q. And you are indicating, I believe, by “working

this thing out together,” that at that point in time

it was your understanding that Senator Cannon was

referring to deregulation.

A. Yes, sir, I think it was stated in that tape that

they were talking about that.

22a

22 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

This last quoted grand-jury testimony was introduced

as substantive evidence at trial. It was admitted after

Webbe testified at trial that, to the best of his memory,

the only thing said when Williams and Dorfman left Sen-

ator Cannon’s office on January 10 was the Senator’s re-

quest for the others “to get back with some input on the

deregulation.” The defendants argue that Webbe’s grand-

jury and trial testimonies are consistent and thus the dis-

trict court erred in admitting, pursuant to Federal Rule

of Evidence 801(d)(1XA), the grand-jury testimony as sub-

stantive evidence.

The principle of law embodied in Rule 801(d)(1XA) ap-

pears clear on its face—a trial witness’s grand-jury testi-

mony is not hearsay (and admissible substantively) if it

is inconsistent with his trial testimony. As long as peo-

ple speak in nonmathematical languages such as English,

however, it will be difficult to determine precisely whether

two statements are inconsistent. But we do not read the

word “inconsistent” in Rule 801(dX1Xa) to include only

statements diametrically vy some or logically incompati-

ble. Inconsistency “may be found in evasive answers, ...

silence, or changes in positions.” United States v. Dennis,

625 F.2d 782, 795 (8th Cir. 1980). In addition, a purported

change in memory can produce “inconsistent” answers.

See United States v. Distler, 671 F.2d 954, 958 (6th Cir.),

cert. denied, 454 U.S. 827 (1981). Particularly in a case

of manifest reluctance to testify, see United States v.

Thompson, 708 F.2d 1294, 1302 (8th Cir. 1983), “if a

witness has testified to (certain] facts before a grand jury

and forgets . . . them at trial, his grand jury testimony

. falls squarely within Rule 801(d\1XA).” United States

v. Marchand, 564 F.2d 983, 999 (2d Cir. 1977),cert. denied,

434 U.S. 1015 (1978). In view of the multitude of factors,

a district court’s ruling under Rule 801(dX1XA) will be

disturbed only if an abuse of discretion. See United States

v. Istler, eT F.2d 954, 958 (6th Cir.), cert. denied, 454

U.S. 827 (1981).

We hold that the district court did not err, and did not

abuse its discretion, in finding Webbe’s trial and grand-

23a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 23

83-2206, 83-2207, 83-2208, 83-2229

jury testimonies inconsistent. At trial Webbe’s memory

of the January 10 conversation outside Senator Cannon’s

office was limited, vague, and not inculpatory. A fair

reading of the admitted grand-jury testimony, by contrast,

indicates that Webbe recalled Senator Cannon saying,

“You fellows will take care of that property thing,” and

Dorfman replying, “Don’t worry about it. It is all taken

care of.’ The defendants attempt a reconciliation by

asserting that Webbe’s brief answers before the grand

jury were not statements about what was said on January

10 but, rather, affirmations that the May 21 recording in-

dicates that Senator Cannon and Dorfman made such

remarks. Two items persuade us that the defendants are

mistaken. First, the prosecutor’s questions before the

d jury contain phrases such as “That is when Roy

said,” and “Then the Senator went on and said.’’? The

prosecutor was not asking about what was heard on the

May 21 tape, but what was “said” outside Senator Can-

non’s office. Second, Webbe’s grand-jury testimony im-

mediately prior to that introduced at trial confirms that

Webbe was recalling the events of January 10, not the

words on the May 21 recording:

Q. Mr. Webbe, on this tape you heard your voice

acknowledge, did you not, the fact that Senator Can-

non said, “And you fellows will take care of that

property thing,” and Alan [sic] saying, “Don’t worry

about it. It’s all taken care of.”

Did you hear that?

A. Yes, sir, I heard that.

Q. And that was also part of the conversation that

occurred on January 10th as these three individuals

exited Senator Cannon’s office, isn’t that true?

A. I believe it was.

7 Answers are within Rule 801(dX1XA) even if elicited by means

of leading questions. United States v. Dennis, 625 F.2d 782, 795

(8th Cir. 1980); United States v. Champion International Corp.,

557 F.2d 1270, 1274 (9th Cir.), cert. denied, 434 U.S. 938 (1977).

24a

24 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

Q. There’s no doubt that as of that part of the con-

versation that Senator Cannon was referring to a

iece of ere which you came to learn was the

onder World property, isn’t that true?

A. That’s correct, sir.

At times before the grand jury Webbe did, in fact, on-

ly acknowledge what he heard on the May 21 recording.

The defendants have no basis, however, to assert that the

grand-jury testimony read at trial was unrepresentative

or taken out of context. Defense counsel declined the dis-

trict court’s invitation, see Fed. R. Evid. 106, to designate

a larger portion of the grand-jury testimony to be read

by the prosecutor. We know of no independent duty of

an examiner of a reluctant witness, see supra pp. 19-22,

to intreduce prior consistent testimony along with incon-

sistent testimony. Moreover, defense counsel were free

to question Webbe about the meaning of his answers

before the grand jury and, in the process, to introduce

prior consistent testimony, see Fed. R. Evid. 801(d1\b).

Noting that Webbe’s initial grand-jury testimony was

consistent with his trial testimony, and asserting that the

district court’s ruling was incompatible with the rationale

of Rule 801(dX1XA), the defendants quote the following

remark from the Notes of the Advisory Committee:

“In many cases, the inconsistent statement is more

likely to be true than the testimony of the ‘vitness

at the trial because it is made nearer in time to the

matter to which it relates and is less likely to be in-

fluenced by the controversy that gave rise to the

litigation.” (quoting California Evidence Code § 1235).

However, the defendants fail to quote a comment, in the

same paragraph, that the Rule “ ‘will provide a party with

desirable protection against the “turncoat” witness who

changes his story on the stand and deprives the party

calling him of evidence essential to his case.’”’ In light of

the fact that Webbe spoke with defense counsel seven or

eight times after testifying before the grand jury but

never with the government, which would not agree to

25a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 25

83-2206, 838-2207, 83-2208, 83-2229

Webbe’s conditions for a meeting, we have little doubt

that the latter rationale fully applied in this case.

Finally, we find no fault with the manner of the dis-

trict court’s ruling. After Dorfraan’s counsel stood to ex-

press his opinion that Webbe’s grand-jury testimony con-

cerned the contents of the May 21 recording, the court

responded: “I do not agree with that, sir, with all due

respect to you. It is with regard to what occurred on Jan-

uary 10th.” This response was invited by trial counsel who

did not, either at the time or after the jury was excused,

state an objection to the court’s comment. We will not

now isolate one comment from the lengthy trial to find

a prejudicial error where none was recognized below.®

The May 21 recording, which prompted Webbe’s grand-

jury testimony, was itself admitted in evidence against

the defendants as statements of co-conspirators, see Fed.

R. Evid. 801(dX2XE). In this recording, Dorfman and

Webbe are overheard informing Don Peters about an un-

fulfilled “commitment” to sell Senator Cannon a piece of

Pension Fund property for $1,400,000. Dorfman expresses

his frustration with Roy Williams, who also made the com-

mitment, and the Pension Fund trustees who would not

adequately pressure Palmieri. See also supra pp. 20-21.

After reviewing this recording, the district court found

that “Mr. Dorfman is trying to get Peters to intervene

to get something done.” If this finding is justified, Dorf-

man’s and Webbe’s expressions were admissible as state-

ments “in furtherance of the conspiracy,” Fed. R. Evid.

801(dX2XE); see United States v. Bentley, 706 F.2d 1498,

1506 (8th Cir.), cert. denied, 104 S. Ct. 107 (1983), and

were not simply idle chatter, see, e.g., United States v.

® We also find no error in the district court’s admission under

Rule 801(dX1XA) of Webbe’s grand-jury testimony concerning the

length of the January 10 meeting.

26a

26 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

Moore, 522 F.2d 1068, 1077 (9th Cir. 1975), cert. denied,

423 U.S. 1049 (1976). The defendants ask us to examine

the district court’s finding and we will, but our review

is governed by the clearly-erroneous standard. See United

States v. Aguirre, 716 F.2d 293, 298 (5th Cir. 1983); United

States v. Arruda, 715 F.2d 671, 684 (1st Cir. 1983); United

States v. Romano, 684 F.2d 1057, 1066 (2d Cir.), cert.

denied, 103 S. Ct. 376 (1982).

We cannot term clearly erroneous the finding that Dorf-

man impliedly sought Don Peters’ assistance. From what

we know about Peters, described as a former Pension

Fund trustee and one of the most important Teamsters

in the Chicago area, he could have succeeded where

Williams and the trustees had failed. Moreover, the May

21 conversation reveals that Peters was not ignorant of

Senator Cannon’s role in deregulation or Dorfman’s asso-

ciations with the Senator. Near the beginning of the re-

cording, Peters, referring to Senator Cannon, states, “He

took care of deregulation, didn’t he?” Later in the con-

versation Peters and Dorfman talk about asking the

Senator for “another favor.” And, when Dorfman and

Webbe cannot recall when the commitment to Senator

Cannon was made, Peters reminds them that it was in

“January, because and I were there.” In

addition, the context of the May 21 discussion supports

the district court’s finding. Immediately after talking with

Senator Cannon on the telephone and telling him that the

Wonderworld deal was still alive, Dorfman began inform-

ing Peters of the “commitment.” Subsequently, in the

midst of bringing Peters up to date, Dorfman called

Bjornsen, the Senator’s son-in-law, and discussed a re.

newed offer to be made to Palmieri. Indeed, Dorfman’s

implied request for assistance did produce a suggestion

from Peters that a group of Las Vegas Teamsters buy

Wonderworld from the Passion Fund. This suggestion

evoked laughter from Dorfman but not, as far as we can

receive from listening to the tape, because it was a joke.

ther Dorfman considered the idea too creative or com-

plex for the Teamsters. ‘Don, the only problem Don is

that that’s what you and I could do.”

27a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 27

83-2206, 83-2207, 83-2208, 83-2229

Our conclusion that the May 21 conversation was ad-

missible as co-conspirators’ statements, coupled with no

further Rule 801(dX2XE) challenge, disposes of the defen-

dants’ claim under the confrontation clause of the Sixth

Amendment. See United States v. Xheka, 704 F.2d 974, 987

n.7 (7th Cir.), cert. denied, 104 S. Ct. 486 (1983); United

States v. Kendall, 665 F.2d 126, 133 (7th Cir. 1981), cert.

denied, 455 U.S. 1021 1982); United States v. Papia, 560

F.2d 827, 836 n.3 (7th Cir. 1977); United States v. Isaacs,

493 F.2d 1124, 1161 (7th Cir.), cert. denied, 417 U.S. 976

(1974). It should be plain to litigants that absent very per-

suasive reasons to overrule these cases, or a command

from a higher authority, challenges to co-conspirators’

statements should be based on the requirements of Rule

801(dX2XE), not on the Sixth Amendment.

The final evidentiary question concerns only Roy Williams.

The district court valed tat the results of Williams’ two

ex parte polygraph tests were inadmissible and, in the

process, denied Williams leave to present foundation evi-

dence about the examinations. The district court’s deci-

- sion was based on two grounds. First, the court stated

that “assuming, arguendo, validity to the theory of

automatic response to stress occasioned by deception, the

authorities in the area recognize as most unreliable ex

parte, secret polygraph examinations, the likes of which

Mr. Williams underwent here.” Second, the court, noting

that the test results could be admitted only to bolster

Williams’ credibility, declared, ‘{I]t is my judgment that

it is far better that that credibility be resolved by the

jury than by a polygraph examiner.”

Before addressing Williams’ contention that the district

court erred, and responding to his plea for fundamental

fairness, we question whether the admission of the poly-

graph results would have positively influenced the jury’s

view of Williams’ credibility. At trial Williams testified

that as the meeting in Senator Cannon’s office on Jan-

uary 10, 1979, was ending, the Senator said, “Thanks

28a

28 Nos. 83-1642, 83-1643, 83- 544, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

Allen. I believe that I will make a bid on that property.”

According to Williams, Dorfman then remarked, “We'll

do everything that we can to see that you get a fair shot

at purchasing the property.” Williams further testified

that he shortly thereafter learned that the property

discussed in the Senator’s office was the Wonderworld

land. At his initial polygraph examination, however,

Wiluams was asked: “At that meeting on January 10,

1979, did anyone in your presence discuss the Wonder-

world property?” He answered, “No.” This answer plainly

. does not square with Williams’ trial testimony and thus,

we surmise, he should be pleased that the test results

were excluded. Nevertheless, we must consider Williams’

legal challenge to the district court’s ruling.

It is clear that the decision to exclude polygraph evi-

dence is “within the sound discretion of the trial judge.”

United States v. Rumell, 642 F.2d 213, 215 (7th Cir. 1981).

What we mean by the term “discretion” is less clear. To

say that a decision is committed to the district court’s

discretion could mean that the trial judge’s ruling is

unreviewable on appeal. See R. Dworkin, Taking Rights

Seriously 31-82 (1977). We have not, see, e.g., United

States v. Feldman, 711 F.2d 758, 767 (7th Cir:), cert.

denied, 104 S. Ct. 352 (1983), and will not go that far in

the context of a ruling on polygraph evidence. We will

observe, however, that not all discretionary matters are

of the same ilk. Certain judgments, such as the length

of a criminal sentence, see United States v. Torres, No.

83-1083, slip op. at 23 (7th Cir. May 1, 1984), command

more deference than other discretionary decisions, see, e.g.,

Coyne—Delany Co. v. Capital Development Board of II-

linois, 717 F.2d 385, 392 (7th Cir. 1983) (damages on an

injunction bond).

A district court’s decision concerning polygraph results

deserves considerable deference. See United States v.

Black, 684 F.2d 481, 483 (7th Cir.), cert. denied, 103 S.

Ct. 463 (1982). Indeed, Williams cites no case from this

circuit, or any other circuit, that reverses a district court’s

decision refusing to admit such evidence. Because this evi-

29a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 29

83-2206, 83-2207, 33-2208, 83-2229 —

dentiary question turns on a complex and imprecise balanc-

ing of factors, see United States v. Bursten, 560 F.2d

779, 785 (7th Cir. 1977) (factors include accuracy, rele-

vance, and prejudice), an appellant’s burden is heavy to

convince us that a reversible error occurred.

Viewed in this light, we hold that the district court did

not abuse its discretion in excluding the results of

Williams’ two ex parte polygraph examinations. The dis-

trict court’s distrust of ex parte tests was rational; we

expressed the same view in United States v. Feldman,

711 F.2d 758, 767 (7th Cir.), cert. denied, 104 S. Ct. 352

(1983). There is, however, a study that suggests our dis-

trust is unfounded, see Raskin, Bardland & Podlesny,

Validity And Reliability of Detection of Deception, Na-

tional Institute of Law Enforcement and Criminal Justice

(June 1978). But because Williams did not present this

study to the district court, he is in no position to find

fault with that court’s reasoning. Moreover, the district

judge’s preference for the jury to decide credibility ques-

tions was entirely appropriate and in accord with our prior

decisions. See United States v. Rumell, 642 F.2d 213, 215

(7th Cir. 1981).

IV.

Early one morning near the end of the trial, five jurors

received telephone calls at their homes. The caller iden-

tified himself as a “represerilative” of “concerned citizens”

and referred to the trial. Each juror promptly hung up

the telephone but, in four instances the caller mentioned

Allen Dorfman’s name, in one case the caller urged Dorf-

man’s conviction, and in one other call the unidentified

9 An argument also unique to Williams is that the district court

should have granted his motion for a severance on the ground that

prejudicial evidence ‘“‘spilled over.” To the extent that evidence

was not admitted inst Williams, the jury was so instructed.

We find no abuse of discretion. See United States v. Moschiano,

695 F.2d 236, 245 (7th Cir. 1982), cert. denied, 104 S. Ct. 110 (1988).

30a

30 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

“representative” mentioned the word “hoodlums.” In light

of these contacts, the defendants contend that the district

court was required to grant a mistrial or, at least, to ex-

cuse the five contacted jurors.

Not every improper ex parte contact with jurors re-

quires a mistrial. See United States v. Fleming, 594 F.2d

598, 608 (7th Cir.), cert. denied, 442 U.S. 931 (1979); see

also United States v. Norton, 700 F.2d 1072, 1076 (6th

Cir.). cert. denied, 103 S. Ct. 1885 (1983). Our system of

justice has not delegated to every reprobate the power

to effect a mistrial. A trial may proceed if the court, after

considering factors such as the communication’s nature,

the jurors’ responses, and the curative ability of instruc-

tions, see Sher v. Stoughton, 666 F.2d 791, 795 (2d Cir.

1981), finds that the jury can (and will) remain impartial

and render a verdict based solely on the evidence, not

the improper contact. This finding is essentially one of

fact, see Rushen v. Spain, 104 S. Ct. 453, 456 (1983), and

is reviewable under the clearly-erroneous standard.?° See

Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir. 1984).

Pursuant to an agreement between the parties, the dis-

trict court questioned the five contacted jurors in cham-

bers. The court asked each juror to describe the call,

whether the call would affect his or her ability to be an

impartial juror, and whether he or she could disregard

the call and confine deliberations to the evidence, the

lawyers’ argumer:ts, and the instructions. Transcripts of

the questioning were provided to defense counse! who,

subsequently, moved for a mistrial. In denying that mo-

tion, the district court stated:

I observed the demeanor of all five of these people.

I looked them in the eye as I questioned them. I had

the advantage, or perhaps disadvantage, of having

10 Given the secrecy of jury deliberations, a prediction of impar-

tiality is virtually the same as a post-verdict finding to the same

effect. If, however, the court aa og adequate reasons to doubt its

— the options of a new trial or post-conviction relief are

available.

3la

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 31

83-2206, 83-2207, 83-2208, 83-2229

talked to them twice today on the subject, so I was

interviewing them from some notes. I am confident

that they are being truthful, candid and honorable

with us when they say they can put these experi-

-ences out of their mind and decide the case solely

on the basis of the evidence that they hear in the

courtroom, the arguments of the lawyers and the in-

structions, and that they will not discuss the ex-

perience with their fellow jurors. I am totally confi-

dent of that.

There was ample basis for the district court’s belief. The

district judge observed and worked with the jury, which

he labeled “truly extraordinary,” for many weeks. He

observed the jurors as they described the calls and their

reactions. We may not, as the defendants request,

disregard jurors’ statements as inevitably suspect. See

Smith v. Phillips, 455 U.S. 209, 217 n.7 (1982); United

States v. Fleming, 594 F.2d 598, 608 (7th Cir.), cert.

denied, 442 U.S. 931 (1979). Moreover, we will not hold

that the communications involved inherently or necessarily

prejudicial remarks. Threats were not made and at most

one ot aps heard a comment urging a guilty verdict, some-

a foes heard from the prosecutor at trial. If more

need mentioned, we only note that throughout the

lengthy trial the jurors diligently followed instructions,

justifying the district court’s observation, “I just think

that they are going to abide my instructions.”

The defendants focus special attention on juror Heller,

who stated that she was unnerved by the call. What we

wrote in the preceding paragraph, however, applies with

equal force to juror Heller. Furthermore, the district

judge remarked, “She was very composed when she was

with me,” and “I think what she is telling us is that she

is distressed by the fact that someone would call her like

that and would jeopardize her position in this case.” The

district court thus did not err in retaining Ms. Heller on

the jury.??

41 The district court did, on motion of the defendants, excuse one

contacted juror.

32a

32 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

In addition to assessing the impact of an improper con-

tact, the district court has “broad discretion to remedy

prejudicial influences.” United States v. Verkuilen, 690

F.2d 648, 658 (7th Cir. 1982). These discretionary _

include, among other things, issuing instructions and

ing severances. In this case the defendants mean at

the district court abused its discretion when the court,

after granting the government’s motion to sequester the

jury, told the jury of its reasoning.

Having reviewed the district court’s statements, we can-

not agree with the defendants. The district judge informed

the jury that five jurors had received telephone calls of

a similar nature. The judge further told the jury that he

was convinced that no one connected with this case had

anything to do with the calls. Finally, he told the jury

that the caller did not pose a threat, but was simply a

“crank.” We believe that the district court’s forthrightness

prevented doubts and rumors that can be more prejudicial

than truth. And by being frank and informing the jurors

that the caller was not associated with the parties, the

district court acted to avoid a very alarming possibility—a

juror secretly learning of the calls and forming mistaken

impressions, see Owen v. Duckworth, 727 F.2d 643, 648

(7th Cir. 1984).

From the district court’s jury instructions, the defen-

dants select one to challenge:

[A] scheme to deprive the Central States Pension

Fund and its agent Victor Palmieri Company of in-

formation material to a decision which Victor Palmieri

Company was required to make as a fiduciary and

exclusive management agent of the Pension Fund also

comes within the meaning of a “scheme or artifice

to defraud.”

Lombardo’s counsel objected to this instruction on the

ground that “{sjix of them [jurors] may think that...

33a

Nos. 83-1642, 88-1648, 83-1644, 83-1660, 33

83-2206, 83-2207, 83-2208, 83-2229

Palmieri was to be deprived of one set of information,

and six may think that it was another set of information.”

To understand the import of this objection, which is re-

newed in the form of an argument on appeal, we must

relate some aspects of the instruction conference.

When Lombardo’s counsel stated his objection, the

prosecutor responded that the instruction was taken

directly from United States v. Bush, 522 F.2d 641 (7th

Cir. 1975), cert. denied, 424 U.S. 977 (1976). Indeed in

Bush we explicitly approved the instruction challenged in

the instant case. See 522 F.2d at 651 n.10. On the basis

of this precedent, the district court overruled the objec-

tion, but accepted an additional instruction from Lombardo

that particularized the Bush instruction. See infra pp. 34-35.

It is plain that Lombardo’s objection found the wrong

target. Counsel had no basis to challenge the district

court’s correct statement of wire-fraud law, see United

States v. Barta, 635 F.2d 999, 1006 (2d Cir. 1980), cert.

denied, 450 U.S. 998 (1981); rather counsel was asserting

that the court’s instructions were insufficient to ensure

a unanimous verdict. But our review of the record and

the briefs discloses no objection to the court’s instruction

on unanimity}? and no alternative instruction tendered by

the defendants. We would thus be justified in holding that

the argument being made on appeal—that the instructions

were insufficient to ensure a unanimous verdict—was

waived. See Fed. R. Crim. P. 30. In the interest of justice

we will not go that far but, to the extent that the court’s

instructions involved discretion, our review will be

tempered by the lack of a properly directed objection.

A common tool to guarantee a unanimous verdict is the

indictment. An indictment charging only one offense in

12 The district court instructed the jury: ‘Take the forms to the

jury room and when you have reached unanimous agreement on

your several verdicts, you fill in and sign the verdict ome. ; «

Your verdicts, whether they be guilty or not guilty, must be

unanimous.”

34a

34 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

a single count guards against a conviction on a less than

unanimous verdict. See United States v. Berardi, 675 F.2d

894, 899 (7th Cir. 1982). In the context of a proper in-

dictment, “ ‘(i]t is assumed that a general instruction on

the requirement of unanimity suffices to instruct the jury

that they must be unanimous on whatever specifications

they find to be the predicate of the guilty verdict.’ ”’

United States v. Murray, 618 F.2d 892, 898 (2d Cir. 1980)

(quoting United States v. Natelli, 527 F.2d 311, 325 (2d

Cir. 1975), cert. denied, 425 U.S. 934 (1976)); see also

United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.

1983). In the instant case, the indictment (Counts III to

XI) did charge only one offense per count—one scheme

to defraud the Pension Fund of the loyal services of

O’Malley. See United States v. Dorfman, 532 F. Supp. at

1128. From the point of view of the charges, therefore,

we cannot conclude that the court’s general instruction

on unanimity was deficient.

The defendants do not cite, yet appear to rely on the

logic of United States v. Gipson, 553 F.2d 453 (5th Cir.

1977), which held that the unanimous-verdict requirement

connotes some agreement as to what the defendant did,

not just that the defendant is guilty of a crime. Gipson

did not require unanimous agreement about all details,

only that the defendant did some act within a certain

“conceptual grouping.” See id. at 458-59. Since Gipson,

courts have not precisely defined the phrase ‘‘conceptual

grouping,” but seem eager to hold that different acts are

within the same gro CMe! See, e.g., Lampkins v.

710 F.2d 374, 377 (7th Cir. 1983), cert. deal. 104 S. Ct.

729 (1984); United States v. Sutherland, 656 F.2d 1181,

1202 (5th Cir. 1981), cert. denied, 455 U.S. 949 (1982).

Assuming, arguendo, that Gipson has some validity in

this circuit, several factors lead us to conclude that in the

present.case the jury agreed on facts within the same

genus. At defense counsel’s suggestion, the district court

followed the challenged instruction with: “It is for you

to decide whether the government has proved beyond a

reasonable doubt that Mr. O’Malley failed to disclose any

35a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 35

83-2206, 83-2207, 83-2208, 83-2229

facts to the Pension Fund and Victor Palmieri Company

and, if so, whether the facts were material.” This focused

the jury’s attention on O’Malley, and the indictment al-

leged only one material nondisclosure—the failure to tell

Palmieri of O’Malley’s activities in “causing the with-

drawal of bids on the Wonderworld property.’’

In the final analysis, “‘only common sense and intuition

can define the specificity with which the jury must de-

scribe the defendant’s conduct before it convicts.” Note,

Right to Jury Unanimity on Maternal Fact Issues, 91

Harv. L. Rev. 499, 502 (1977). That common sense and

intuition, in turn, is informed by the circumstances of the

case and the arguments of the parties. In the absence of

an appropriate unanimity instruction tendered by the

defendants, we will not reverse the convictions on the

und of faulty instruction.1* See United States v.

Pavloski, 574 F.2d 933, 936 (7th Cir. 1978).

VI.

Joseph Lombardo maintains that his convictions must

be reversed for insufficient evidence. Extracting from

Lombardo’s brief the core of his argument, we find the

assertion that the government did not sufficiently prove

(1) his knowledge of the conspiracy, and (2) his intent that

O’Malley would fail to disclose material facts to the Pen-

sion Fund and Palmieri. |

A person is not a co-conspirator, of course, if he is

unaware of the “essential nature’ of the conspiracy.

United States v. Fellabaum, 408 F.2d 220, 224 (7th Cir.

1969); see United States v. Annoreno, 460 F.2d 1303, 1309

(7th Cir.), cert. denied, 409 U.S. 852 (1972). The requisite

knowledge may be established by circumstantial evidence

13 We also reject the argument that the district court erred in

instructing the jury that O’Malley “had a duty to disclose and not

to conceal” facts material to the decisions of the Pension Fund

and its agent, Palmieri.

36a

36 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

or inferred from basic facts. See United States v. Zuide-

veld, 316 F.2d 873, 878 (7th Cir. 1963). Indeed, the quan-

tum of proof that the government must produce is not

great; “(pJresence has been sufficient evidence of know-

ing participation in a conspiracy when there were suspi-

cious circumstances, and the existence of the conspiracy

was already established.” United States v. Dalzotto, 603

F.2d 642, 645 (7th Cir.), cert. denied, 444 U.S. 994 (1979);

see United States v. Holmes, 452 F.2d 249, 255-56 (7th

Cir. 1971), cert. denied, 405 U.S. 1016 (1972).

We find ample evidence to support the jury’s conclu-

sion that Lombardo was not an unwitting dupe, but a

knowledgeable co-conspirator. A recording of a telephone

conversation on January 30, 1979, plainly establishes that

Lombardo selected two men associated with the Pension

Fund, O’Malley and Massa, to travel to California to con-

vince Glick to withdraw his Wonderworld bid. The trip

succeeded and Lombardo was so informed on February

2, 1979. In a telephone conversation on that date William

Webbe told Lombardo that Glick was willing to withdraw

and, in fact, only bid on the property after Palmieri

“brought it to him.” Lombardo expressed satisfaction and

directed Webbe to “stay right on top of it.”

Lombardo’s knowledge of the purpose of O’Malley and

Massa’s trip—to assure that Senator Cannen’s group was

the sole bidder on Wonderworld—may be inferred from

several facts. In the conversation of February 2, Webbe

told Lombardo: “I will let you . . . know out there the

minute everything is completed.” If Lombardo is in-

terested in the outcome of his efforts, a reasonable jury

could infer that Lombardo knows the objective of his

work. Furthermore, it is unlikely that Webbe and Dorf-

man would have solicited and relied on the advice of Lom-

bardo, who termed himself “‘an old time general,” with-

out informing Lombardo of the conspiracy’s objective. In

addition, Lombardo and Dorfman were overheard on May

17, 1979, discussing how the Pension Fund’s asset

managers were independent from the Teamster leaders.

Lombardo stated, “‘You got a, you got an example with

37a

Nos. 83-1642, 88-1648, 83-1644, 83-1660, 37

83-2206, 83-2207, 83-2208, 83-2229

Palmieri. With the Cannon deal.” Finally, having listened

to the pertinent Sages and heard the alacrity of Lom-

bardo’s comments, we do not hesitate to hold that the

jury justifiably found Lombardo fully informed.

That the word “deregulation” was not used in Lom-

bardo’s conversations is of no moment. A co-conspirator

need not know the details, see United States v. Alvarez,

625 F.2d 1196, 1198 (5th Cir. 1980) (en banc), cert. denied,

451 U.S. 938 (1981), or every objective of the conspiracy,

see United States v. Frans, 697 F.2d 188, 190 n.1 (7th

Cir.), cert. denied, 104 S. Ct. 104 (1983). Knowledge of

the conspiracy’s essential nature, see United States v.

Fellabaum, 408 F.2d 220, 224 (7th Cir. 1969), or the “kind

of criminal conduct ... in fact contemplated,” United

States v. Gallishaw, 428 F.2d 760, 763 n.1 (2d Cir. 1970),

is sufficient. As noted above, the government adequately

proved knowledge of a plan to offer a “thing of value”

to Senator Cannon and, from the secretive nature of the

operation (Lombardo told Webbe over the phone, “Just

don’t mention names”), the jury could infer that Lombardo

knew the favor was intended ‘“‘to influence anf] official

act.” 18 U.S.C. § 201(bX1).**

From our analysis of the conspiracy evidence, it follows

that the jury could properly infer Lombardo’s intent that

O’Malley not disclose material facts to Palmieri. The plan

to bribe the Senator demanded secrecy. Had O’Malley told

Palmieri of his efforts to secure the withdrawal of Glick’s

$1,600,000 bid, the conspiracy and fraudulent scheme

would have collapsed even sooner than it eventually did.'5

14 There was sufficient evidence, in any event, to support the jury

finding that Lombardo was aware of the intent of the co-conspirators

to influence Senator Cannon’s actions on deregulation.

15 Lombardo also makes the “constitutional” ment that the

trial was too complex for the jury to understand and counse! to

render effective assistance. To accept this argument, we would

have to rewrite several chapters of any constitutional-law treatise.

This we decline to do.

38a

38 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

VII.

After sentencing, the defendants filed motions for a new

trial based on newly discovered evidence, see Fed. R.

Crim. P. 33. The defendants’ “newly discovered evidence”

consisted of former F.B.I. agent H. Edward Tickel’s affi-

davit, which: states that prior to obtaining any Title III

authorization, he participated in two surreptitious entries

into the offices of Allen Dorfman’s Amalgamated In-

surance Agency. The defendants contend that Tickel’s

allegations, if true, warrant suppression of the evidence

obtained through electronic surveillance. The district

court, without holding an evidentiary hearing, denied the

new-trial motions. We could affirm on any of several

unds, but will select the most obvious one—the defen-

ts’ lack of standing.

Standing analysis is, in essence, a bipartite inquiry: who

is a proper party to urge suppression of a piece of evi-

dence, and whose rights may a proper party assert? Be-

cause the defendants’ conversations were overheard and

recorded, they are proper parties to maintain that the

tapes should be suppressed. See 18 U.S.C. §§ 2510(11),

2518(10Xa)..The defendants reach an insurmountable ob-

stacle, however, when the nature of their suppression

argument is considered and the person whose rights were

allegedly violated is identified.

Tickel, according to his affidavit, did not enter any of

the defendants’ offices; he was only in Amalgamated In-

surance Agency’s exterior lobbies and corridors, the alarm

room, and the frame room. United States v. Williams, 565

F. Supp. 353, 361 (1983). The district court found, and the

defendants do not challenge, that no defendant “‘used the

areas searched in any way that created a legitimate ex-

pectation of privacy.” Jd. at 362; see also United States

v. Alewelt, 532 F.2d 1165, 1168 (7th Cir.), cert. denied,

429 U.S. 840 (1976). Tickel’s alleged searches did violate

Allen Dorfman’s rights but these searches, which the

defendants contend mandate suppression of the electronic

evidence, “did not infringe their fourth amendment

rights.” 565 F. Supp. at 362 (emphasis added).

39a

Nos. 83-1642, 83-1643, 83-1644, 83-1660, 39

83-2206, 83-2207, 83-2208, 83-2229 .

Under both Fourth Amendment principles, see United

States v. Payner, 447 U.S. 727, 731 (1980), and Title III

law, see United States v. Fury, 554 F.2d 522, 525 (2d Cir.

1977), cert. denied, 436 U.S. $31 (1978), a defendant may

not obtain the exclusion of evidence on the ground that

someone else’s rights were violated. In other words, a

defendant may assert only his own rights. Consequently,

a defendant may not successfully challenge the admissibil-

ity of evidence on the basis that the evidence is tainted

(or “the fruit of’) some past infringement of another’s

rights. See United States v. Williams, 580 F.2d 578, 583

n.21 (D.C. Cir.) (Title III case), cert. denied, 439 U.S. 832

(1978); United States v. Wright, 524 F.2d 1100, 1102 (2d

Cir. 1975) (same); see also United States v. Chase, 692

F.2d 69, 70 (9th Cir. 1982) (Fourth Amendment standing

law); United States v. Hansen, 652 F.2d 1874, 1386-87

(10th Cir. 1981) (same). In this case, the defendants would

not have a constitutional cause of action against Tickel

for his two searches of Amalgamated Insurance Agency,

and we will not, for purposes of the exclusionary rule,

permit an indirect attack where no direct challenge is

possible.

Furthermore, United States v. Payner, 447 U.S. 727

(1980), precludes the invocation of our supervisory powers.

In Payner this Court held that a federal court may not

“use its supervisory power to suppress evidence tainted

by gross illegalities that did not infringe the defendant’s

constitutional rights.” Jd. at 733. We will not permit an

end run around Payner by holding, as the defendants re-

quest, that the government’s failure to inform the Title

III authorizing court of Tickel’s searches was a material

omission, see generally supra p. 14, requiring suppression.

Finally, we disagree with the defendants that, assum-

ing Tickel’s allegations are true, the district court was

required to reverse its earlier finding of no Franks viola-

tion, see supra pp. 10-15. The Tickel affidavit is simply

not that probative of whether the government made in-

tentional or reckless misrepresentations in the March l,

40a

40 Nos. 83-1642, 83-1643, 83-1644, 83-1660,

83-2206, 83-2207, 83-2208, 83-2229

1979, Title III application. Indeed, an overzealous govern-

ment agent might be less likely to doubt the truth of

criminal allegations than a detached investigator. In any

event, we will not rule that the district court abused its

discretion, see United States v. Oliver, 683 F.2d 224, 228

(7th Cir. 1982), in refusing to reverse its earlier Franks

ruling. '

VIII.

For the reasons expressed in this opinion, the judgments

of conviction and the order denying the new trial are

affirmed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

4la

UNITED STATES of America,

Plaintiff,

| No. 81 CR 269.

. | United States District Court,

Roy L. WILLIAMS, Joseph Lom- | N.D. Illinois, E.D.

bardo, Thomas F. O’Malley, and June 17, 1983.

Andrew G. Massa, also known as |

Amos Massa, Defendants. J

Defendants, who were convicted after jury tnal of con-

spiracy to bribe United States senator, travel in interstate

commerce with intent to commit bribery, and nine counts of

wire fraud, filed motion for new trial on grounds of newly

discovered evidence. The District Court, Prentice H. Marshall,

J., held that: (1) defendants failed to demonstrate that newly

acquired evidence came to their knowledge only after trial and

that it could not have been discovered earlier; (2) defendants

lacked standing to contest illegal entry that new evidence

uncovered; (3) conversations intercepted subsequent to illegal

searches were not subject to suppression; (4) defendants lacked

standing to challenge illegal entries, or suppress its fruits, not

only under Fourth Amendment but also under statute govern-

ing wire interceptions and interceptions of oral communication:

| (5) even if defendants had standing to challenge conduct,

suppression was not warranted; (6) Government’s failure to

disclose unlawful entries did not violate statute which requires

disclosure of all previous applications for authorization to

intercept conversations or statute which requires approval of

Attorney General or his designate; and (7) suppression

pursuant to court supervisory power over administration of

justice was inappropriate.

Motions denied.

1. Criminal Law 303

Where defendant was murdered after his conviction for

conspiracy to bribe United States senator, travel in interstate

Se ee ene cet eae ere

42a

commerce with intent to commit bribery, and nine counts of

wire fraud, indictment was dismissed as moot. 18 U.S.C.A.

§§ 201(b)(1), 371, 1343, 1952.

2. Criminal Law 1083

Although appeal was pending, district court had jurisdic-

tion to deny motion for new trial on grounds of newly

discovered evidence on its merits or certify its intention to grant

it to Court of Appeals, which could then entertain motion to

remand case. Fed. Rules Cr.Proc.Rule 33, 18 U.S.C.A.

3. Criminal Law 938(1) |

Where defendants could have raised issue giving rise to

their motion for new trial on grounds of newly discovered

evidence concerning legality of search which preceded placing

of surveillance equipment in their initial posttrial motion but

did not, did not seek to inquire during trial or discovery as to

how and where surveillance equipment was placed, and de-

fendants had reason to inquire whether Government could

have defeated extensive security arrangemenis in building

without taking improper steps, defendants failed to demon-

strate requirements for new trials on ground of newly dis-

covered evidence that evidence came to the knowledge only

after trial and that they could not have discovered evidence

earlier had they exercised due di!izence.

4. Criminal Law 394.5(2)

Where defendants who claimed that conduct alleged by

Federal Bureau of Investigation agent violated Fourth Amend-

ment rights defendants were required to demonstrate standing

to assert violation of Fourth Amendment in order to be entitled

to suppression of evidence. U.S.C.A. Const.Amend. 4.

5. Searches and Seizures 7(26)

To establish standing to claim violation of Fourth Amend-

ment, defendants must show that challenged conduct violated

43a

their own legitimate expectations of privacy. U.S.C.A. Const.

Amend. 4.

6. Searches and Seizures 7(10)

Fourth Amendment rights are only infringed when some-

thing person legitimately expects will remain private is at stake.

U.S.C.A. Const.Amend. 4.

7. Searches and Seizures 7(10)

FBI agent’s entry into offices on pretext interview and

another agent’s observations of office from parking lot infringed

no expectation of privacy, where pretextual entry to office

involved seeing nothing more than any visitor or would see and

agent observing office from parking lot just observed what any

passerby could see from street. U.S.C.A. Const.Amend. 4.

8. Searches and Seizures 7(10)

Defendant’s legitimate expectation of privacy could only

be violated by searches of areas they have sought to keep

private by using them in way that prevents them from being

freely accessible to other people.

9. Searches and Seizures 7(26)

Defendants failed to demonstrate they had standing to

contest FBI agent’s two surreptitious entries into office, where

agent did not enter any of their offices. but rather was only in

exterior lobbies and corridors, alarm room and frame room,

and there was no showing that any defendant used in any

private way areas agent searched.

10. Criminal Law 394.5(2)

Where defendants were not victims of allegedly unlawful

search, their intercepted conversations were not seized as fruits

of violation of their own right; hence, they had no standing to

suppress fruits of those violations. U.S.C.A. Const.Amend. 4.

44a

11. Constitutional Law 42(1)

Purpose of rules governing standing to challenge violation

of constitutional rights is to prevent defendants from com-

. plaining of violation of someone else’s rights.

12. Criminal Law 394.5(2)

Suppression remedy contained in section of Omnibus

Crime Control Act governing wire interception and interception

of oral communication was intended to be construed consistent

with Fourth Amendment principles to standing. 18 U.S.C.A.

§§ 2510-2520; U.S.C.A. Const.Amend. 4.

13. Criminal Law 394.5(2)

Where there was no claim that court orders authorizing

wiretaps were insufficient on their face or that interceptions

were not made in conformity with orders of authorization, and

defendants’ own expectations of privacy were not infringed by

allegedly unlawful search which preceded court orders, defend-

ants lacked standing to challenge unlawful search, or suppress

its fruits in form of their intercepted conversations, under either

section of Omnibus Crime Control Act governing wire inter-

ceptions or interception of oral communications or under

Fourth Amendment. 18 U.S.C.A. §§ 2510-2520; U.S.C.A.

Const.Amend. 4.

14. Searches and Seizures 7(10)

Telecommunications 491

If search involves no private area, then it invades no

interest protected by either Fourth Amendment or section of

Omnibus Crime Control Act governing wire interception and

interception of oral communication. 18 U.S.C.A. §§ 2510-2520;

U.S.C.A. Const.Amend. 4.

15. Searches and Seizures 7(26)

Defendant who alleged he was staying in hotel suite

surreptitiously entered by Federal Bureau of Investigation

45a

agent had standing under Fourth Amendment to complain of

entry into suite. U.S.C.A. Const. Amend. 4.

16. Searches and Seizures 7(10)

Fourth Amendment prohibits warrantless entries into hotel

rooms and offices. U.S.C.A. Const.Amend. 4.

17. Criminal Law 394.1(3)

Defendant seeking suppression of intercepted commu-

nications under section of Omnibus Crime Control Act govern-

ing wire interceptions and interceptions of oral communications

may suppress interceptions which would not have incurred but

for unlawful conduct. 18 U.S.C.A. §§ 2510-2520.

18. Criminal Law 394.3

Evidence is “unlawfully intercepted” within meaning of

section of Omnibus Crime Control Act governing wire inter-

ception and interception of oral communications only where

government could not have obtained evidence but for unlawful

conduct. 18 U.S.C.A. § 2518(1)(a)(1).

See publication Words and Phrases for

other judicial constructions and definitions.

19. Criminal Law 394.1(3)

Unlawful entry by Government to hotel suite

did not entitle defendants convicted of conspiracy

to bribe United States senator, travel in interstate

commerce with intent to commit bribery, and nine

counts of wire fraud to any statutory suppression,

where none of evidence obtained during entry was

introduced at trial and no claim was made that any

of the evidence that was introduced at trial was

fruit of entry. 18 U.S.C.A. § 2518(1)(a)(i).

46a

20. Telecommunications 519

Once authorization for surveillance under section of Om-

nibus Crime Control Act governiig wire interception and

interception of oral communication is issued, government may

surreptitiously enter target’s premises to plant microphones. 18

U.S.C.A. §§ 2510-2520, 2510( 11), 2518(10)(a).

21. Criminal Law 394.1(3)

Where only illegal conduct involved in surveillance of

defendants was two entries into offices of insurance company,

absent those entries Federal Bureau of Investigation still would

have developed information to defeat alarm system in time to

intercept all conversations offered at trial, and FBI could easily

have slipped into offices and planted microphones without ever

having to defeat alarm system, Government would have inter-

cepted conversations offered at trial absent unlawful conduct;

therefore, suppression of intercepted evidence was not required.

18 U.S.C.A. § 2518(10)(a)(i).

22. Telecommunications 514

Congress, in enacting oral interception and interception of

oral communication procedures provision of Omnibus Crime

Control Act, intended Government to disclose prior appli-

cations since disclosure of history of invasion of target’s privacy

might make judge more reluctant to authorize further surveil-

-lance. 18 U.S.C.A. § 2518(1)(e).

23. Telecommunications 514

Government’s failure to disclose unlawful entries in its

application for authorization order for wiretap did not violate

Statute governing procedures for wire interceptions and inter-

ceptions of oral communication. 18 U.S.C.A. § 2518(1)(e).

24. Criminal Law 394.1(3)

Even if statute governing procedures for interception of

oral communication were violated by Government’s failure to

47a

disclose unlawful entries in its application for authorization

order, where failure to disclose did not enable Government to

obtain surveillance it would not otherwise have been able to

obtain, suppression of intercepted conversations was not war-

ranted. 18 U.S.C.A. § 2518(1)(e), (10)(a)(1).

25. Telecommunications 512

Purpose of statute which requires approval of Attorney

General or his designate to be obtained before application for

electronic surveillance is submitted to court is to insure that

senior official reviewed application and determined that pro-

posed intrusion on target’s privacy was warranted before

electronic surveillance was authorized. 18 U.S.C.A. § 2516(1).

26. Telecommunications 512

Failure of Government to disclose unlawful entries to

Attorney General’s designate did not violate statutory require-

ment that approval of Attorney General or his designate be

obtained before application for electronic surveillance is sub-

mitted to court. 18 U.S.C.A. § 2516(1).

27. Searches and Seizures 7(7)

Warrant application which contains intentional or reckless

misstatement of facts is void under Fourth Amendment only if

misrepresentations or omissions are material to application in

sense that warrant would not have issued absent mis-

representations or omissions. U.S.C.A. Const.Amend. 4.

28. Searches and Seizures 7(7)

Failure to disclose unlawful entries in application for

wiretap did not void application on grounds that warrant

application which contains intentional or reckless misstatements

of fact is void uader Fourth Amendment, where probable cause

to conduct surveillance still existed, and means independent of

unlawful entries existed for installation of microphones.

U.S.C.A. Const.Amend. 4.

48a

29. Criminal Law 394.1(1)

Where there is source for evidence government seeks to

offer which is independent of unlawful conduct, Fourth Amend-

ment does not require suppression of fruits of unlawful search

or seizure. U.S.C.A. Const.Amend. 4.

30. Criminal Law 394.3

Assuming defendants had standing to make fruit of poi-

sonous tree argument based on unlawful entry of office build-

ing, where Government had sources which it used to obtain

information necessary to plant microphones independent of

unlawful entries, and Government was authorized to break into

offices and to do what was necessary to plant microphone after

court order was issued, even absent illegalities, intercepted

communications were not subject to suppression as fruits of

unlawful entries. U.S.C.A. Const.Amend. 4.

31. Criminal Law 394.5(2)

Where defendants lacked standing to challenge unlawful

entry to offices, and also failed to demonstrate nexus between

unlawful conduct and evidence consisting of intercepted con-

versation used against them at trial, exercise of court’s super-

visory power over administration of justice 'o suppress inter-

cepted conversations was not appropriate.

Douglas P. Roller, Gary Shapiro, Mark Vogel, U.S. Dept.

of Justice, Chicago, IIl., for plainuff.

Thomas A. Wadden, Jr., William F. Krebs, Wadden,

Scherr, Krebs & Gitner, Washington, D.C., for defendant

Williams. é

George J. Cotsirilos, Robert M. Stephenson, Cotsirilos &

Crowley, Ltd., Chicago, Ill., for defendant Massa.

William Hundley, Lawrence Gondelman, Hundley & Cac-

heris, P.C., Washington, D.C., for defendant O’Malley.

Frank W. Oliver, Northfield, Ill., Judith Halprin, Halprin,

Halprin & Cantor, Chicago, Ill., for defendant Lombardo.

49a

MEMORANDUM OPINION

PRENTICE H. MARSHALL, Disirict Judge.

[1] On December 15, 1982, a jury found defendants Roy

L. Williams, Joseph Lombardo, Thomas F. O’Malley and

Andrew G. Massa guilty of conspiracy to bribe a United States

Senator, travel in interstate commerce with intent to commit

bribery, and nine counts of wire fruad, in violation of 18 U.S.C.

$§ 201(b)(1), 371, 1343 and 1952 (1976). Defendants filed

multiple individual motions for a new trial, in arrest of judg-

ment and for a judgment of acquittal under Fed.R.Crim.P.

29(c), 33 and 34. All of the motions were denied on January

26, 1983 save one in which all defendants sought a new trial

because of alleged post verdict contact between a juror and a

witness. That motion was denied on March 31, 1983. A four

week sentencing hearing ensued, and, on March 31, 1983,

defendants were sentenced to various periods of incarceration.

Thereafter, all defendants filed timely notices of appeal to the

United States Court of Appeals for the Seventh Circuit.

{2] On April 13, defendants O’Malley and Massa filed

their third motion for new trial under Fed.R.Crnm.P. 332 which

has been joined by all defendants. The motion is based on

what defendants characterize as newly discovered evidence.

The parties have briefed the question of whether the “evi-

dence” that has been submitted in support of the motion

1 Allen M. Dorfman was also convicted on these charges. He

was murdered on January 20, 1983 and the indictment was dismissed

as moot as to him.

2 The court on motion of a defendant may grant a new trial to

him if required in the interest of justice. ... A motion for new trial

based on the ground of newly discovered evidence may be made only

before or within two years after final judgment, but if an appeal is

pending the court may grant the motion only on remand of the case.

A motion for new trial on any other grounds shall be made within 7

days after verdict of finding of guilty or within such further time as the

court may fix within the 7-day period. Fed.R.Crim.P. 33.

50a

warrants a new trial.3

Defendants’ “newly discovered evidence” consists of the

affidavit of H. Edward Tickel (‘*Tickel”’), which we take as true

for present purposes.* In 1978 and 1979 Tickel was a Special

Agent of the Federal Bureau of Investigation (“FBI’’) sta-

tioned in Washington, D.C. In October 1979, while he was in

Chicago on other FBI business, he was told by other FBI agents

that he might be asked to assist in breaking into a large office

building in order to place microphones in several offices as part

of electonic surveillance in an ongoing investigation. It later

developed that the building was located at 8550 W. Bryn Mawr

Avenue, in Chicago, which housed, inter alia, the offices of

Allen Dorfman’s Amalgamated Insurance Company, the Cen-

tral States Pension Fund and the International Brotherhood of

Teamsters.

When Tickel next returned to Chicago, he learned that the

agents had acquired a magnetic card which enabled them to

enter the building from the basement parking area and had

obtained permission te use an Office on the fourth floor of the

building, belonging to the Milk Producers Association. During

this period, Tickel and other agents used th. card to enter the

building and go up to the fourth floor office on several

occasions. Tickel also used the locks in the milk Producers’

office to make a master key for the entire building.

3 Though there is an appeal pending in this case, we have

jurisdiction to either deny the motion on its merits or certify our

intention to grant it to the court of appeals, which could then entertain

a motion to remand the case. United States v. Ellison, 557 F.2d 128,

132 (7th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d

450 (1977).

4 We consider the affidavits the government has filed in opposi-

tion to the motion only to the extent they are not controverted by the

Tickel affidavit. We have resolved all issues of credibility in favor of

Tickel.

Sla

After testing his key on other locks in the building, Tickel

and one or two other FBI agents went down to the second floor

offices of their target, Amalgamated Insurance Company,

where they used the key to enter the reception area by a door

that led from the common stairwell. Tickel observed the

security camera and locks on Amalgamated’s doors, deter-

mined that he could make a key that would open the doors, and

left.

In order to study Amalgamated’s security system further,

Tickel soon returned to Amalgamated, accompanied by another

agent, on a pretext interview. While pretending to be interested

in an insurance claim, Tickel observed the office.

During either December or January, Tickel returned to

Chicago and was told that another entry into Amalgamated’s

offices would be required to learn more about its secunty

systems. FBI agents had been watching Amalgamated’s offices

from the building’s parking lot, and had learned that every day

the cleaning persons would leave the doors to the stairs open

and part of the suite unattended.5 Therefore, Tickel took

advantage of this opportunity to enter the offices, while in

communication with agents in the parking lot who watched to

see if any cleaning persons might return and catch Tickel.

Tickel used his master key to enter the alarm room, and studied

the alarm system to learn if there were any back-up systems in

addition to the main system, and to learn details regarding the

main system.

Tickel then left the alarm room and went to the telephone

frame room, which he entered with his master key. He checked

$ Tickel also alleges that agents surveilled Amalgamated from

the space near the second floor stairwell. However, no allegation is

made that this surveillance was necessary to learn what the FBI did

learn about the cleaning persons. Since surveillance of the cleaning

persons during Tickel’s surreptitious entry was done solely from the

parking lot, it appears the surveillance from the stairwell was super-

fluous and did not assist the FBI in obtaining any evidence.

52a

this room for back up alarm equipment. After finishing in the

frame room, Tickel left the building.

Tickel told the FBI’s alarm expert what he learned during

this entry, and from his conversations with the expert Tickel

concluded that this information enabled the expert to under-

stand and hence to defeat Amalgamated’s alarm system. Tickel

also learned that the other agents had learned the location of

the telephone line that connected Amalgamated’s alarms with

its alarm company’s monitoring system by talking to the

telephone company, and had rented room space and telephone

lines near this line in order to monitor the line and eventually

defeat it.

On April 7, 1979, then Chief Judge James B. Parsons

granted the government’s request that the FBI be authorized to

enter surreptitiously Amalgamated’s offices and place micro-

phones in the private offices of Allen Dorfman and William

Webbe. Tickel returned to Chicago on April 11 and assisted

other agents in placing these “bugs.”

Some months later, Tickel returned to Chicago, on

November 7, 1979, to assist the FBI in making a “technical

survey” of a suite of hotel rooms at the Sheraton-O’Hare in

Chicago which the FBI anticipated would soon be the subject of

a court order authonzing electronic surveillance. The next day,

Tickel purchased some key blanks, then went to the suite when

no one was there and made a key for the doors. He did not

enter the suite on that occasion, but did return on November 9

and entered the suite with his key to reconnoiter it. Subse-

quently the Department of Justice refused to approve the

surveillance, and the surveillance equipment was never placed

in the suite.®

§In November 1980 the FBI again requested approval to place

electronic surveillance equipment in the suite and that Tickel be

dispatched to assist in the placement. This request was denied and

Tickel never went out to Chicago.

S3a

Defendants claim that this evidence, if true, would estab-

lish that the electronic surveillance in this case was tainted by

government misconduct, and, as a result, the fruits of this

surveillance should not have been admitted into evidence at

trial.

The parties agree that the standards for a rule 33 motion

are demanding.

The defendant(s] must show that the evidence (1)

came to their knowledge only after trial; (2) could not

have been discovered earlier had defendants exercised due

diligence; (3) is material, and not merely impeaching or

cumulative; and (4) would probably lead to an acquittal in

the event of a retrial. As recognized in United States v.

Curran, 465 F.2d 260, 262 ( 7th Cir.1972), these standards

reflect the fact that such motions “are not favored by the

courts and are viewed with great caution.”

United States v. Oliver, 683 F.2d 224, 228 (7th Cir.1982).

The first two elements go to the question of whether it is

appropriate for defendants to raise the new evidence at this

time. We doubt that either element is satisfied in this case.

[3] First, defendants must show that the evidence came to

their knowledge only “after trial.” The motion was not filed

until April 13, 1983, two weeks after defendants were sen-

tenced. Yet they had learned of Tickel’s allegations approxi-

mately three months earlier, see Motion of Defendants

O’Malley and Massa for a New Trial 93, shortly after the

verdict was returned. Thus, it appears that defendants could

have raised this issue in their initial post-trial motions which

were not due to be filed until January |1, 1983 and certainly

prior to or during the sentencing hearing (which ran inter-

mittently from February 7 through March 31). But they did

not. .

While it is unclear whether the pendency of the post-trial

proceedings should provoke the conclusion that defendants did

not learn of the evidence “after trial” and hence cannot raise

54a

the issue under rule 33, at a minimum we think we should

express our displeasure at defendants’ failure to raise the

issue—which was known to them—until after sentencing. We

may have discretion to deny the motion on this basis alone. We

choose not to do so. But we observe that multiple and belated

motions for new trial are looked upon with disfavor because

they are not in the interests of the orderly administration of

justice.”

We also question defendants’ assertion that they could not

have discovered this evidence earlier had they exercised due

diligence. At no point during the weeks of extensive pretrial

proceedings concerning the legality of the electronic surveil-

lance in this case nor during the trial when the parties, court

and jury were concerned with the audibility and credibility of

the recordings of the intercepted conversations, did defendants

seek to inquire as to how and where the surveillance equipment

was placed in Mr. Dorfman and Mr. Webbe’s offices. Had

defendants sought such information, we might well have per-

mitted them extensive discovery on the question, which might

have disclosed Tickel’s name and enabled defendants to contact

him.® Defendants—all of whom worked in or frequently visited

7 This is the 199th written motion presented by the parties in the

course of this litigation. Each has received individual attention and a

ruling (oral or written) stating the reasons therefor.

8 In fact, the discovery we did permit defendants on other issues

revealed Tickel’s name and involvement in the placement of bugs.

Williams’ suggestion in his reply memorandum that we limited

discovery is incorrect. While we did limit discovery as to wiretaps that

did not produce evidence to be offered at trial, and as to the

government’s confidential informers, we in no way limited defend-

ants’ discovery of the details of the surveillance that did produce the

evidence offered against them. Moreover, at the suppression hearing

and before trial we did eventually order disclosure involving con-

fidential informants and other electronic surveillance.

55a

the building—were undoubtedly aware of the extensive security

arrangements at Amalgamated and hence would have reason to

inquire whether the government could have defeated them

without taking improper steps.

Defendants’ present argument that they had no reason to

question the government’s good faith or adherence to law is

disingenuous at best. At every step of the way in this case

defendants have attacked the government’s good faith and

adherence to the law. Defendants sought and obtained exten-

sive discovery because they refused to accept the government’s

assertions prior to the suppression hearing that it had complied

with the law. Their failure to explore the placement of the

microphones prior to now is not the product of due diligence.

While defendants have failed to demonstrate the first two

elements required for a new trial under rule 33 and Oliver, we

nevertheless will consider and decide the remaining issues

presented by the motion, both to provide the court of appeals

with a* complete record for its review and hence obviate the

necessity for a remand should it decide that the motion was

properly presented, and because defendants’ allegations of

governmental misconduct raise important issues in the adminis-

tration of justice that should be addressed. See generally United

States v. Turner, 490 F.Supp. 583, 609 (E.D.Mich.1979), aff'd

mem., 633 F.2d 219 (6th Cir.1980), cert. denied, 450 U.S. 912,

101 S.Ct. 1351, 67 L.Ed.2d 336 (1981).

The Tickel affidavit certainly does not contain merely

cumulative or impeaching evidence. The allegations are en-

tirely new to the case and raise a ground for suppressing

9 Moreover, the pre-discovery motion to suppress discovery

which defendants did receive revealed that the microphones vere

placed in Dorfman’s and Webbe’s offices only a few days after Chief

Judge Parsons’ April 7 order. The speed with which the microphones

were placed should have alerted defendants to the possibility that the

government might have begun the process of placing them prior to

April 7, given defendants’ knowledge of the security system.

56a

evidence which we have not previously considered. The final

question under rule 33 is whether this evidence would probably

lead to the acquittal of defendants. If defendants are correct

that the new evidence requires the suppression of all fruits of

the microphone surveillance after April 7, and all surveillance,

both telephonic and oral, that resulted from applications filed

after April 7, then evidence critical to the government’s case

would have been excluded and defendants might well have

been acquitted. Furthermore, defendants urge that the Tickel

allegations reflect so adversely upon the government’s good

faith in intiating the electronic surveillance in this case that we

should reconsider our entire ruling on the motion to suppress

and exclude all of the surveillance evidence. Accordingly, we

must decide whether defendants are correct that the Tickel

allegations warrant the suppression of evidence offered by the

government at trial.

Ill

[4] Defendants are entitled to suppress evidence only if

they demonstrate that they have standing to assert the illegality

of conduct alleged by Tickel. Since defendants claim that this

conduct violates the fourth amendment,'? they must demon-

strate standing to assert a violation of the fourth amendment.

[5,6] To establish standing defendants must show that the

challenged conduct violated their own legitimate expectations

of privacy. “{T]he defendant’s Fourth Amendment rights are

violated only when the challenged conduct invaded his legiti-

mate expectation of privacy rather than that of a third party.”

10“The right of the people to be secure in their persons, houses.

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.” U.S.

Const.amend. IV.

57a

United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439,

2444, 65 L.Ed.2d 468 (1980) (emphasis in original). See

Rawlings v. Kentucky, 448 U.S. 98, 104-06, 100 S.Ct. 2556,

2561-62, 65 L.Ed.2d 633 ( 1980); United States v. Salvucci, 448

U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619

(1980); Rakas v. Illinois, 439 U.S. 128, 129, 143-48, 99 S.Ct.

421, 423, 430-32, 58 L.Ed.2d 387 (1978). Fourth amendment

rights are only infringed when something a person legitimately

expects will remain private is at stake. “What a person

knowingly exposes to the public, even in his own home or

Office, is not a subject of Fourth Amendment protection.” Katz

v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19

L.Ed.2d 576 (1967).

[7] Applying these principles, it is clear that much of the

conduct alleged by Tickel violates no fourth amendment inter-

ests of defendants. Tickel’s entry into the offices on a pretext

interview involved seeing nothing more than any visitor or

customer would see, and the fourth amendment permits a

government agent to pose as a customer and enter business

premises open to customers of defendants. See Lewis v. United

States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)."'

Also, the agents’ observations of Amalgamated from the park-

ing lot infringed no expec:ation of privacy; the agents just

observed what any passerby could see from the street. See

United States v. Scherer, 673 F.2d 176, 181 (7th Cir.), cert.

denied, 457 U.S. 1120, 102 SCt. 2935, 73 L.Ed.2d 1334 ( 1982).

[8, 9] Even as to Tickel’s two surreptitious entries'2 into

Amalgamated, defendants have failed to demonstrate their

‘1 Our court of appeals has twice recently reaffirmed this proposi-

tion. See United States v. Swart, 679 F.2d 698, 701 (7th Cir. 1982);

United States v. Scherer, 673 F.2d 176, 181-82 ( 7th Cir. ), cert. denied,

457 U.S. 1120, 102 S.Ct. 2935, 73 L.Ed.2d 1334 (1982).

12We address only Ticxel’s first two entries because the

third—Tickel’s entry into Mr. Dorfman and Webbe’s offices to plant

the microphones—was done pursuant to court order and there is no

contention that it was unlawful absent prior unlawful behavior.

58a

standing. While we have no doubt that defendants had a

legitimate expectation of privacy in their own Offices, see

Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d

1154 (1968), Tickel did not enter any of their offices; he was in

only the exterior lobbies and corridors, the alarm room and the

frame room. Defendants’ legitimate expectations of privacy

can only be violated by searches of areas thay have sought to

keep private by using them in a way that prevents them from

being freely accessible to other people. See, e.g., United States

v. Haydel, 649 F.2d 1152, 1154-55 (Sth Cir.), corrected, 664

F.2d 84 (1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72

L.Ed.2d 140 (1982); Wilson v. Health & Hospital Corp. of

Marion County, 620 F.2d 1201, 1208-14 (7th Cir.1980); United

States v. Vicknair, 610 F.2d 372, 380-81 (Sth Cir. ), cert. denied,

449 U.S. 823, 101 S.Ct. 83, 66 L.Ed.2d 25 (1980); United

States v. Garcia-Rodriquez, 558 F.2d 956, 960 ( 9th Cir. 1977).

No showing is made that any defendant used the areas Tickel

searched in any private way. Since no defendant worked in the

areas Tickel searched, or used those areas in any private way,

each lacks standing to challenge the search. See United States

v. Cella, 568 F.2d 1266, 1283 (9th Cir. 1977); United States v.

Cohen, 516 F.2d 1358, 1366 (8th Cir. 1975); United States v.

Britt, 508 F.2d 1052 (Sth Cir.), cert. denied, 423 U.S. 825, 96

S.Ct. 40, 46 L.Ed.2d 42 (1975); United States v. Lefkowitz, 464

F.Supp. 227, 230-31 (C.D.Cal.1979), aff'd, 618 F.2d 1313 (9th

Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27

(1980). See also United States v. Cook, 498 F.Supp. 1057,

1058-59 (S.D.Tex. 1980), modified and aff'd on other grounds,

657 F.2d 730 (Sth Cir. 1981). For example, in United States v.

Alewelt, 532 F.2d 1165, 1168 (7th Cir.), cert. denied, 429 U.S.

840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976), our court of appeals

held that the defendant had no legitimate expectation of

privacy in the outer area of his office where he had placed his

coat on a coatrack.'S Neither do defendants allege any propriet-

'3In United States v. Rosenberg, 416 F.2d 680 (7th Cir.1969),

( Footnote continued on following page)

59a

ary interest in the premises searched which might accord them

standing. See Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99

S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978).14 Since defend-

ants have not shown that they used the areas searched in any

way that created a legitimate expectation of privacy, they lack

standing to challenge the search since it did not infringe their

fourth amendment rights. '5

( Footnote continued from preceding page)

the court held that the defendant had standing to challenge the search

of an office he did not work in because he was the person at whom the

search was directed, relying on Jones v. United States, 362 U.S. 257,

260-61, 80 S.Ct. 725, 730-31, 4 L.Ed.2d 697 (1961), which it read to

hold that a target of a search has standing to contest it. However, that

aspect of Jones was repudiated in Rakas v. Illinois, 439 U.S. 128, 99

S.Ct. 421, 58 L.Ed.2d 387 (1978). Rosenberg also appears to be

inconsistent with Alewelt. Thus, we conclude that Rosenberg is no

longer good law. See also United States v. Cortina, 630 F.2d 1207,

1215 n. 5 (7th Cir.1980).

‘4 Allen Dorfman, who is no longer a defendant, was the only

individual in the case to assert a proprietary interest in Amalgamated.

See United States v. Dorfman, 542 F.Supp. 345, 393 n. 56

(N.D.II1. 1982).

'S This holding is also supported by the line of cases holding that

a search of common areas of secured apartment buildings does not

violate any legitimate expectation of privacy of a tenant, since the

areas Tickel searched were in effect common areas. See United States

v. Acevedo, 027 F.2d 68, 69 n. | (7th Cir.), cert. denied, 449 US.

1021, 101 S.Ct. 587, 66 L.Ed.2d 482 (1980); United States vy.

Luschen, 614 F.2d 1164, 1173 (8th Cir.1980) United States v. Penco,

612 F.2d 19, 24-25 (2d Cir.1979); United States v. Eisler, 567 F.2d

814, 816 (8th Cir.1977) United States v. Shima, 545 F.2d 1026. 1029

(5th Cir.), cert. denied, 434 U.S. 996, 98 S.Ct. 632, 54 L.Ed.2d 490

(1977); United States v. Calhoun, 342 F.2d 1094, 1100 (9th

Cir.1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781

(1977); United States v. Cruz Pagan, 537 F.2d 554, 557-58 (Ist

Cir.1976); United States v. Anderson, 533 F.2d 1210, 1214

(D.C.Cir.1976); United States v. Freeman, 426 F.2d 1351 (9th

( Footnote continued on foliowing page)

60a

[10] Defendants argue that even if they lack standing to

directly challenge the search, since it developed information

used to place microphones and intercept their conversations,

the conversations must be suppressed as fruits of a poisonous

tree under the rule of Wong Sun v. United States, 371 U.S. 471,

83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

While the interception of defendants’ own conversations

infringes their legitimate expectations of privacy, see Katz v.

United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967), in the instant motion defendants do not challenge the

interceptions directly, but rather argue that the interceptions are

the fruits of a prior fourth amendment violation which we have

held they do not have standing to challenge. We know of no

authority that holds that a defendant may suppress evidence

seized from him as a fruit of a violation of fourth amendment

rights which he does not have standing to challenge. There is

ample authority to the contrary. See United States v. Chase,

692 F.2d 69 (9th Cir.1982) (per curiam); United States v.

Congote, 656 F.2d 971, 975-76 (Sth Cir.1981); United States v.

Hansen, 652 F.2d 1374, 1386-87 ( 10th Cir.1981); United States

v. Shovea, 580 F.2d 1382, 1385-86 ( 10th Cir. ), cert. denied, 439

U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978): United States v.

Tortorello, 533 F.2d 809, 815 (2d Cir.1976); Gissendanner v.

Wainwright, 482 F.2d 1293, 1297-99 (Sth Cir.1973); United

States v. Brown, 425 F.2d 1172, 1174 (9th Cir.1970) (per

curiam); Jacobs v. Warden, 367 F.2d 321 (4th Cir.1966):

United States v. Agapito, 477 F.Supp. 706, 713 (S.D.N.Y.1979)

aff'd, 620 F.2d 324 (2d Cir.), cert. denied, 449 U.S. 834, 101

(Footnote continued from preceding page)

Cir.1970); United States v. Conti, 361 F.2d 153, 157 (2d Cir.1966),

vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035

(1968); Polk v. United States, 314 F.2d 837 (9th Cir. )), cert. denied,

375 U.S. 844, 84 S.Ct. 96, 11 L.Ed.2d 72 (1963); United States v. St.

Clair, 240 F.Supp. 338 (S.D.N.Y.1965). But see Umited States v.

Carriger, 541 F.2d 545 (6th Cir.1976

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