# Petition for Writ of Certiorari — Williams v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2150%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 470 U.S. 1003 ## Text 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, v. 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. li 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--- I. 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, 11 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 i sin nnlesinsnnahnnnnn 2,8 I II Binet niccinsheinsunngainninetnnsharsneracanonensace 8 iv Fe Sess FE EE Peecsnnnnoninas aaninbinnakiemnnainniels a se Oy ee itcinansecnthniieckaiiniacappaniocbiinds jaditivdalon 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 oe cn (MRAM Merehereden acai MUAL SHIN eee Other Provisions S.Rep. No. 1097, 90th Cong., 2d Sess. 91 (1968) ... S.Rep. No. 1097, 90th Cong., 2d Sess. 96 ( 1968) ... 13 14 IN THE Supreme Court of the Gnited States OCTOBER TERM, |984 THOMAS F. O’MALLEY and ANDREW G. MASSA, Petitioners, v. 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). 2 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 3 (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. 4 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) 10 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 11 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. 12 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 13 II 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. 15 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. 16 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 17 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. 18 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 la 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 2a 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. I. 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 3a 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). } 4a 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 Sa Nos. 83-1642, 83-1643, 83-1644, 83-1660, 83-2206, 83-2207, 83-2208, 83-2229 or 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 6a 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. 7a 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. A 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, 8a 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. B 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, 9a 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. C. 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.” i 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. A. 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 20 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.® B 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. C. 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). a 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). V. 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. Mar [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2150%3A1. Public record. Not legal advice.