Appendix — Daniels v. United States

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No. ,

In THE

Supreme Court of the United States

OctToBerR TERM, 1990

ROOSEVELT DANIELS, et al.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO THE PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

MICHAEL HOWARD KING

Counsel of Record

150 North Michigan Avenue

Suite 2500

Chicago, Illinois 60601

(312) 558-1000

Attorney for Petitioners

Of Counsel:

Ws. Braprorp ReyYNoLps

S88 Sixteenth Street

Washington, D.C. 20006

212) 296-8600

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

oe

INDEX TO APPENDIX

United States v. Roosevelt Daniels, et al., 902 F.2d

&. Be Se er

Order Denying Petition for Rehearing (7th Cir.

NE A cece ec ehacaka ne tae ak bi

Transcript of Proceedings, February 27, 1987 ..

Order Denying Petition for Mandamus, Roosevelt

Daniels, et al. v. Hon. James F. Holderman, No.

87-1322 (7th Cir. March 5, 1987)............

Transcript of Proceedings (portion), March 12,

APR ELAR Pa ity, percep a ee oe

Transcript of Proceedings (portion), April 8, 1988 .

Order Denying Petition for Mandamus, In The

Matter of Roosevelt Daniels, et al., No. 88-1750

COU Ge I I ok Sod aec sc censccseiss

United States v. Roosevelt Daniels, et al., 848 F.2d

. ek RR ape ae eee ey ee

Transcript of Proceedings (portion), February 26,

I Oe ere ere rere ery rer er re

Order of Senior Judge Frank J. McGarr, Marked

EE” EE. Gy. IE dk cus oc ccccudviics

Minute Order of Senior Judge Frank J. McGarr,

SE PE a kon os a heeta ne <0 an 64 Os k sas

Government’s Report to the Court Concerning the

March 1986 Extension of the Term of Service

of the Special October 1984 Grand Jury, March

ER ae Spa ae ee ee a i a Pe

49

51

55

il

Letter from Michael H. King to Senior Judge

Frank J. McGarr, March 9, 1987 ............

Letter from Senior Judge Frank J. McGarr to

Michael H. King, March 10, 1987...........

Transcript of Proceedings (portion), April 22, 1987 .

In re: The Special October 1984 Grand Jury, Tran-

script of Proceedings, March 11, 1986.......

In re: The Special October 1984 Grand Jury, Tran-

script of Proceedings, March 18, 1986 .......

In re: The Special October 1984 Grand Jury, Tran-

script of Proceedings, April 1, 1986 .........

In the Matter of the Special October 1984 Grand

Jary, OGuder, Mawel B WORB oonccciccccaccecs

In the Matter of the Special October 1984 Grand

Jury, Minute Order, March 3, 1986.........

Transcript of Proceedings (portion), September 2,

PRUETT ETOCS ee er

60

74

75

IN THE

Supreme Court of the United States

OcTOBER TERM, 1990

ROOSEVELT DANIELS, et al.,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO THE PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

App. 1

UNITED STATES of America,

Plaintiff-Appellee,

V.

Roosevelt DANIELS, et al.,

Defendants-Appellants.

Nos. 89-2014, 89-2015, 89-2017,

89-2025 and 89-3176.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 18, 1990.

Decided May 10, 1990.

Rehearing and Rehearing En Banc

Denied June 11, 1990.

* * * *

Before CUMMINGS, POSNER, and MANION, Circuit

Judges.

POSNER, Circuit Judge.

The five defendants whose appeals we have consolidated

were charged with large-scale federal drug offenses orches-

trated by defendant Daniels, in part through telephone

calls to the other defendants from the Metropolitan Cor-

rectional Center in Chicago, where he was awaiting trial

for his drug activities. The evidence of guilt being over-

whelming, the defendants pleaded guilty, reserving how-

ever several issues for appeal. Later they moved to set

aside their guilty pleas, but Judge Holderman denied the

motion and in 1989 sentenced the defendants to prison

for terms ranging up to 55 years (for Daniels). Although

the sentences are exceedingly long (especially since they

are not subject to parole), the defendants’ offenses were

brazen, far-flung, and enormously profitable.

App. 2

The principal issue is the validity of the indictment. Sec-

tion 3331 of the Criminal Code places an eighteen-month

limit on the life of a federal grand jury, unless the district

court enters an order extending it. An indictment issued

by a grand jury whose term is up and has not been valid-

ly extended is void, United States v. Bolton, 893 F.2d 894

(7th Cir.1990) (per curiam), so like other jurisdictional rules

this is a technicality with teeth. The term of the Special

October 1984 Grand Jury that indicted the defendants ex-

pired on April 1, 1986, and the defendants were not in-

dicted till August, so it is critical whether the life of the

grand jury was extended. No order extending it exists

but in United States v. Taylor, 841 F.2d 1300, 1306 (7th

Cir.1988), a case involving the same grand jury, we held

that it was enough that Chief Judge McGarr, who had

presided over the Special October 1984 Grand Jury, had

made a determination to extend it for another six months.

As evidence that he had made such a determination we

cited a “nunc pro tunc’’ order that he had issued on March

3, 1987, after the grand jury’s term had (even if extended)

expired. When, shortly after Taylor came down, the de-

fendants asked us for a writ of mandamus directing Judge

Holderman to dismiss the indictment because the grand

jury’s term had expired, we denied the writ, stating that

Taylor ‘controls this case.” In re Daniels, No. 88-1750

(7th Cir. April 25, 1988) (unpublished).

The government argues that In re Daniels establishes

the law of this case, thus providing another reason beside

stare decisis why we should not reexamine Taylor. But

we are not disposed to reexamine the holding of Taylor

in any event, the holding being only that a formal order

is not necessary to extend the life of a grand jury. Al-

though the defendants in this case disagree with that

holding, the main thrust of their argument is different.

App. 3

It is that the nunc pro tunc order is not reliable evidence

of Judge McGarr’s determination to extend the grand

jury.

When the order was issued, not only had the grand

jury’s term, even if it had been extended by six months,

expired, but Judge McGarr was no longer chief judge and

hence was no longer presiding over grand juries. On both

accounts he had no authority to extend the life of the

grand jury. A judge may correct a clerical error at any

time, pursuant to Rule 36 of the criminal rules, a parallel

provision to the better known civil rule 60(a) of the civil

rules. But he may not rewrite history. United States v.

Janik, 723 F.2d 587, 545 (7th Cir.1983); King v. Ioniza-

tion International, Inc., 825 F.2d 1180, 1188 (7th Cir.1987).

The significance of Judge McGarr’s nunc pro tune “order”

(not really on order) is evidentiary, as is apparent from

its wording, which speaks of Judge McGarr’s recollections

and intentions during the grand jury’s initial eighteen-

month term. In Taylor we were given no reason to doubt

the reliability of these recollections and intentions and

treated the “order” as, in effect, an unrebutted affidavit.

The present defendants have submitted evidence, which

Judge Holderman may have brushed aside too quickly,

that the order is not reliable. The order was drafted by

government lawyers and given to Judge McGarr to sign

without notice to the defendants or to their lawyers. It

is signed but of course not attested.

Imagine that Judge McGarr had retired before March

1987 and it became necessary to determine whether he

had extended the term of the grand jury during its in-

itial eighteen-month term. The government could not have

gone to Judge McGarr and asked him for an order; a re-

tired judge (as distinct from a judge who, having reached

retirement age, remains in service as a senior judge) has

App. 4

no authority to issue orders. The government would have

had to ask Judge McGarr for an affidavit and the defen-

dants would have been entitled to contest the affidavit

by suitable means which might have included question-

ing both the grand jurors and Judge McGarr under oath.

What difference should it make that Judge McGarr had

not yet retired (he has retired since, and returned to the

practice of law) when the government lawyers came to

see him? He was no longer presiding over grand juries

and had no authority to issue orders concerning them; in

any event the Special October 1984 Grand Jury had dis-

banded and its members had dispersed.

The issue of the adequacy of Judge McGarr’s order as

evidence was not clearly presented in Taylor. The defen-

dants’ subsequent petition for mandamus raised it clear-

ly enough but the issue was not a suitable one for man-

damus and our remark in denying the petition that Taylor

“controls this case” was dictum. In both of those proceed-

ings we assumed rather than determined the reliability

of the nune pro tunc order as evidence of Judge McGarr’s

recollections and intentions. What is more, in disposing

of still another futile effort by the defendants to obtain

a premature determination of the issue, the same panel

that had denied the petition for mandamus later reassured

the defendants that their challenge to the indictment

would be considered on the merits when properly raised.

United States v. Daniels, 848 F.2d 758, 760 (7th Cir.1988).

There was no suggestion that the law of the case doc-

trine would prevent such consideration.

We did say in Taylor that we were examining Judge

McGarr’s order to determine whether “it contains evi-

dence” that the judge had made the requisite determina-

tion to extend the grand jury’s life, and that “this evi-

dence [the order, plus the fact that the grand jury had

App. 5

voted to extend itself] suffices to show that the [Special

October] 1984 Grand Jury was properly extended for six

months.” 841 F.2d at 1308-09. But the word “evidence”

was not used with its technical legal meaning. The ex

parte character of the order and the fact that Judge

McGarr was no longer chief judge when he signed it

should have been evident but they were not discussed and

their significance was not grasped. The order’s adequacy

as evidence was, in short, not confronted. Judicial assump-

tions concerning, judicial allusions to, and judicial discus-

sions of issues that are not contested are not holdings.

Pennhurst State School & Hospital v. Halderman, 465

U.S. 89, 119, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984);

Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372,

1377 n. 5, 39 L.Ed.2d 577 (1974); Zenith Radio Corp. v.

United States, 437 U.S. 448, 459-62, 98 S.Ct. 2441, 2449-51,

57 L.Ed.2d 337 (1978); United States v. House, 808 F.2d

508, 511 (7th Cir.1986); Glidden v. Chromalloy American

Corp., 808 F.2d 621, 625 (7th Cir.1986); Zbaraz v. Har-

tigan, 763 F.2d 1532, 1544-45 (7th Cir.1985). The holding

of Taylor is simply that the absence of an order entered

before the initial term of the grand jury had expired was

not a fatal defect invalidating the indictment. That holding

would not be impaired by a conclusion based on the dif-

ferent record and arguments in the present case that the

evidentiary foundations for the finding that the grand jury

was in fact extended are too wobbly to permit the mat-

ter to rest.

Taylor refers repeatedly to Judge McGarr’s “determina-

tion,” made during the life of the grand jury though me-

morialized afterward, to extend that life. Another name

for “determination” is, it might seem, ‘“order,’’ making

the failure to memorialize it in a writing the kind of cler-

ical oversight that can be corrected (without notice) under

App. 6

Rule 60(a) of the civil rules or, as here, Rule 36 of the

criminal rules. Such a correction can be made, in the

words of Rule 36, “by the court at any time.” Judge

McGarr was a judge of the district court when he made

the correction, and the proper member of a court to cor-

rect an oversight is the judge who committed the over-

sight in the first place. Since Rule 36 empowers the judge

to act on his own initiative, the fact that the oversight

was drawn to his attention by an ex parte submission of

one of the parties would not invalidate the corrective

order.

Unfortunately there is no way in which Judge McGarr’s

“determination” to extend the life of the grand jury can

be deemed an “order.” Not only does Taylor deny the

possibility of such a characterization, 841 F.2d at 1306,

but an order is a public act, not an internal mental act.

A judge does not make an order, formal or informal, writ-

ten or oral, when he decides, without telling anybody, that

he has determined that the grand jury has unfinished busi-

ness. The failure to announce his determination may be

an oversight but it is not an oversight in an order, judg-

ment, or any other part of the record, and it therefore

cannot be corrected under Rule 36.

It is a question of fact whether Judge McGarr was mis-

taken in his recollection of having made an uncommuni-

cated determination that the life of the grand jury should

be extended. For obvious reasons, disputes over judicial

recollection are not customarily resolved by placing the

judge on the witness stand. The issue has arisen in cases

where a judge is asked to vacate a criminal defendant’s

sentence on the ground that the presentence report con-

tains false information, and he denies the motion on the

ground that he did not rely on the information in deciding

what sentence to give. We have upheld these denials even

App. 7

though the judge was not subjected to the fires of cross-

examination. Johnson v. United States, 805 F.2d 1284,

1289 (7th Cir.1986); Blake v. United States, 841 F.2d 203,

207 n.3 (7th Cir.1988); United States v. Montoya, 891 F.2d

1273, 1280 (7th Cir.1989); see also United States v. Baron,

860 F.2d 911, 919-20 (9th Cir.1988); but see United States

v. Fernandez-Angulo, 897 F.2d 1514 (9th Cir.1990) (en

banc). We assume that our judges are not only honest

but also not unduly suggestible, and therefore that Judge

McGarr would not have signed an order stating that he

recalled extending the grand jury unless he accurately re-

called having done so. (Chief Judge Grady, who succeeded

Judge McGarr as chief judge, recalled not having extended

a grand jury that handed down an indictment after the

expiration of its eighteen-month term, and the result was

the dismissal of the indictment. United States v. Clemenic,

886 F.2d 332 (7th Cir.1989), published as an appendix to

United States v. Bolton, supra, 893 F.2d at 896-901.) It

was not a recollection about the remote past, compare

Krist v. Eli Lilly & Co., 897 F.2d 293 (7th Cir.1990),

and it was consistent with the fact that the grand jury

had voted to extend its term. There can be no serious

doubt about what Chief Judge McGarr would have done

had he been asked in timely fashion to issue an order ex-

tending the life of the grand jury. The “evidentiary hear-

ing” conducted in this case to determine Judge McGarr’s

recollection was unsatisfactory, for the reasons we have

indicated, but we do not think it was so defective that

we should remand for a further hearing at which Judge

McGarr would be placed under oath, examined, and cross-

examined—with results entirely predictable.

Although we conclude that the indictment in this case

was valid, we are greatly distressed at the amount of ju-

dicial time that has been consumed by this snafu, the

App. 8

result of the failure of the United States Attorney for

the Northern District of Illinois to keep track of his grand

juries. We trust that steps will be taken to prevent a re-

currence of such negligence.

Several issues raised by Daniels alone also merit discus-

sion. First, he argues that he was coerced into pleading

guilty by promises that he would get a lighter sentence

and also that he would be let out of solitary confinement

at the Metropolitan Correctional Center, where he was

being held to prevent him from continuing to conduct his

drug ring from jail. There is no evidence of the latter prom-

ise beyond the fact that, shortly after Daniels pleaded

guilty, he was indeed let out of solitary confinement. This

could have been a coincidence, and it did not require

Judge Holderman to find, in the absence of any other

evidence, that the plea had been coerced.

Regarding the promise of leniency in sentencing, Daniels

stresses Judge Holderman’s statements during the guilty-

plea hearing that “I give substantial weight . . . if a defen-

dant who is guilty is willing to admit that to himself and

to other people around him and to me”’ and “substantial

consideration to people who believe they are guilty [when

they] admit it,” and his interrupting the hearing to sen-

tence a defendant in an unrelated case who had pleaded

guilty. The judge told everyone in the courtroom (thus in-

cluding Daniels) to pay close attention to that sentencing,

then told the defendant in the unrelated case that he al-

ways takes a guilty plea into account in sentencing and

proceeded to sentence him to probation. Daniels argues

that by staging this little show of compensated contrition

Judge Holderman led him to expect that if he pleaded

guilty he would get off with a sentence a lot shorter than

55 years. The government replies that had Daniels not

pleaded guilty, Judge Holderman might well have sen-

App. 9

tenced him to life in prison without parole. The govern-

ment points out that, with time off for good behavior,

Daniels can expect to be released in the year 2024, when

he will be “only” 73 years old. In fact his life will have

been ruined.

A plea bargain is a contract. If the government, or the

judge, breaks the contract, the defendant must be allowed

to withdraw his plea. Santobello v. New York, 404 USS.

257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); United

States v. O’Brien, 853 F.2d 522, 525-26 (7th Cir.1988);

United States v. Strawser, 739 F.2d 1226, 1229 (7th Cir.

1984); Brooks v. United States, 708 F.2d 1280 (7th Cir.

1983). And no more than in ordinary contract law need

a promise in a plea negotiation be express in order to

bind. United States v. O’Brien, supra, 853 F.2d at 526;

United States v. Bowler, 585 F.2d 851, 854 (7th Cir.1978).

But the content of the promise is a question of fact,

United States v. Strawser, swpra, 739 F.2d at 1229; United

States v. Fields, 766 F.2d 1161, 1168 (7th Cir.1985), and

we cannot say that Judge Holderman made a clear error

in determining that he had not broken any promise of le-

niency. Daniels could not expect Judge Holderman to give

him probation if he pleaded guilty. The only promise rea-

sonably to be inferred from the judge’s statements and

conduct was that Daniels would receive an undefined amount

of consideration if he pleaded guilty—enough consideration

to avoid a sentence of imprisonment for his natural life,

for that was the maximum sentence, but beyond that he

was throwing himself on the judge’s mercy. If he stood

trial, as was his right, almost certainly he would not only

be convicted but also be sentenced to life imprisonment

without possibility of parole, and it must have seemed

preferable to him to gamble on Judge Holderman’s gen-

erosity. That he was disappointed does not establish a

breach of contract.

App. 10

We are troubled that Judge Holderman should be the

official deputed to determine whether Judge Holderman

broke his promise to the defendant. It seems to make him

a judge in his own cause. But that is not the view that

our legal system takes of such cases. A defendant who

wants to withdraw his guilty plea before sentencing must

address his motion in the first instance to the judge who

accepted the plea (unless the judge has died or retired

or recused himself), for that is the judge in the case. After

sentencing, if you want to withdraw your guilty plea you

must return to the sentencing court, 28 U.S.C. § 2255,

and as a practical matter that means the sentencing judge.

These are just two illustrations, although highly pertinent

ones, of the point that our legal system often empowers

a judge to decide, subject only to deferential appellate

review, whether a previous ruling by him was in error.

The procedure is not a denial of due process. Even though

most judges, like most anyone, are reluctant (if only un-

consciously) to acknowledge their mistakes, judges are not

interested parties in the sense of having a monetary in-

terest in the outcome of their rulings or a familial or other

close relationship with a party or a lawyer in the case.

We do not allow trial judges to sit on appeals from their

cases but we do allow them to reconsider their rulings.

28 U.S.C. § 47; Russell v. Lane, 890 F.2d 947 (7th Cir.

1989); David v. Attorney General, 699 F.2d 411, 416-17

(7th Cir.1983). A plea to withdraw a guilty plea is con-

sidered in this light. The fact that the specific determina-

tion Judge Holderman had to make was whether he had

broken his promise is immaterial, for the situation would

be the same if he were asked to reconsider an order de-

nying a motion for an extension of time on the ground

that he had promised the extension.

Even if there was no breach of an implied promise to

Daniels he still can argue that since a promise of lenien-

App. 11

cy can result in a confession’s being adjudged coerced,

United States v. Rutledge, 900 F.2d 1127, 1129-1130 (7th

Cir.1990); United States v. Guerrero, 847 F.2d 1363, 1365

(9th Cir.1988); Quartararo v. Mantello, 715 F.Supp. 449,

460-61 (E.D.N.Y.), aff'd without opinion, 888 F.2d 126 (2d

Cir.1989), the same should be true with respect to a guilty

plea, which is like a confession but even more conclusive.

However, the analogy between a confession and a guilty

plea—expressly rejected in Brady v. United States, 397

U.S. 742, 754, 90 S.Ct.1463, 1472, 25 L.Ed.2d 747 (1970)—

is not perfect. If it were, there could be no plea bargain-

ing, an essential element of which is the prosecutor’s im-

plied promise of leniency if the defendant forgoes his right

to put the government to the expense and uncertainty of

a trial. The elaborate hearing that is required before a

judge can accept a guilty plea is designed to assure that

the defendant is not induced by the promise of leniency

to plead guilty to a crime he did not commit. But that

the promise is the inducement is taken for granted; and

although this is distressing to the opponents of plea bar-

gaining, their views have yet to move the Supreme Court

or Congress. Perhaps if the promise of leniency were so

extravagant that it would induce even an innocent per-

son to plead guilty, the plea would be invalid, although

Brady can be read to suggest not. 397 U.S. at 758, 90

S.Ct. at 1474. Suppese, fantastically, that a person accused

of first-degree murder, but innocent, were offered a plea

of guilty to a traffic offense. The risk of conviction of

murder, even if slight, would when multiplied by the cost

to the defendant of being punished if he were convicted

induce many a rational but innocent defendant to plead

guilty to a traffic offense; a plea in these circumstances,

although entirely voluntary, would be unreliable. Even

then it could be argued that the defendant would be pro-

tected by the trial judge’s obligation to inquire whether

App. 12

the plea has a factual basis, and that any limitation on

freedom of contract deserves defendants’ interests. We

need not pursue the issue further, however the considera-

tions we have listed may balance out, we were speaking

in our hypothetical case of an extravagant promise, and

there was no such promise in our actual case unless Judge

Holderman was implicitly promising Daniels probation if

he pleaded guilty. Not even Daniels argues that.

The last question we discuss is whether Judge Holder-

man should have granted the defendants’ motion to sup-

press evidence obtained by the FBI’s recording of Daniels’

telephone calls from jail on the ground that it violated

the federal wiretapping law. 18 U.S.C. §§ 2510 et seg. As

in United States v. Feekes, 879 F.2d 1562, 1565-66 (7th

Cir.1989), we need not decide whether this is a case of

consent by one of the parties to the phone conversation

(namely Daniels) and is therefore within the exception in

18 U.S.C. § 2511(2Xc). The government does not advance

its cause with us by arguing that Daniels’ consent can

be inferred from a provision in the Code of Federal Reg-

ulations which says that inmates’ phone calls may be mon-

itored. That is the kind of argument that makes lawyers

figures of fun to the lay community, and although a re-

spected sister court has accepted it, United States v.

Amen, 831 F.2d 373, 379 (2d Cir.1987), we place no weight

on it. In addition, however, Daniels not only signed a form

which states “I understand that telephone calls I make

from institution telephones may be monitored and re-

corded,” but also stated in one of the monitored and re-

corded conversations: “don’t think for one minute this con-

versetion ain’t being recorded.” He thought that by the

use of a simple code he could prevent the eavesdroppers

from understanding what he was doing. He thought wrong.

This may make his case seem identical to that of a per-

ch, uae

App. 13

son who consents to the search of his house, erroneously

believing that the police will fail to do a thorough job and

uncover the contraband that he has concealed in it. No

law shields evidence thus obtained from use in a criminal

prosecution. But knowledge and consent are not syno-

nyms. Taking a risk is not the same thing as consenting

to the consequences if the risk materializes. A person who

walks by himself late at night in a dangerous neighbor-

hood takes a risk of being robbed; he does not consent

to being robbed. We would be surprised at an argument

that if illegal wiretapping were wid. spread anyone who

used a phone would have consented to its being tapped

and would therefore be debarred from complaining of the

illegality.

However, here as in Feekes the government has a good

alternative ground for the admissibility of the wiretap

evidence. Section 2510(5Xa\ii) of the Criminal Code allows

wiretapping “‘by an investigative or law enforcement of-

ficer in the ordinary course of his duties.” This describes

what the *BI agents were doing when listening to Daniels

conduct an illegal enterprise. See also United States v.

Sababu, 891 F.2d 1308, 1828-29 (7th Cir.1989); United States

v. Paul, 614 F.2d 115, 117 (6th Cir.1980).

AFFIRMED.

App. 14

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

June 11, 1990

Before

Hon. Walter J. Cummings, Circuit Judge

Hon. Richard A. Posner, Circuit Judge

Hon. Daniel A. Manion, Circuit Judge

Nos. 89-2014, 89-2015,

89-2025, 89-3176

) Appeals from the

) United States

) District Court

UNITED STATES OF AMERICA, _) for the

Plaintiff-Appellee, ) | Northern District

) of Illinois,

) Eastern Division.

) No. 85 CR 232

) James F. Holderman,

) Judge.

Ns

ROOSEVELT DANIELS, et al.,

Defendants-Appellants.

ORDER

On May 24, 1990, defendants-appellants filed a petition

for rehearing with suggestion for rehearing en banc. All

of the judges on the original panel have voted to deny

the petition, and none of the active judges has requested

a vote on the suggestion for rehearing en banc. The peti-

tion is therefore DENIED.

App. 15

(1]* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

85 CR 232

V.

ROOSEVELT DANIELS, et al., February 27, 1987

)

)

)

) Chicago, Illinois

)

) 11:19 a.m.

)

Defendants.

TRANSCRIPT OF PROCEEDINGS

| BEFORE THE

HONORABLE JAMES F. HOLDERMAN

APPEARANCES:

For the Government: HOWARD M. PEARL

Assistant U.S. Attorney

For defendant

Roosevelt Daniels: MICHAEL H. KING

For defendant

Sandra Campbell: DOUGLAS P. ROLLER

[2] THE CLERK: 85 CR 232, United States v. Roosevelt

Daniels. For emergency motion.

MR. ROLLER: Good morning, your Honor. Douglas

Roller on behalf of the defendant Sandra Campbell.

MR. KING: Good morning, your Honor. Michael King

on behalf of Roosevelt Daniels.

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 16

MR. PEARL: Good morning, your Honor. Howard Pear!

on behalf of the United States.

MR. ROLLER: I know your Honor is pressed for time.

We have filed a written motion just now, emergency mo-

tion. I think it speaks for itself. Our position is quite

simple.

The indictment in the present case, we believe, is in-

valid. The defendants are being held pursuant to an in-

valid indictment. They should be released.

MR. KING: Your Honor, I talked to Michael Cohen,

who represents Lawrence Lee. Mr. Cohen could not be

here this morning, but he has authorized me to inform

you that he joins the motion on behalf of Mr. Lee.

THE COURT: All right.

Mr. Pearl?

MR. PEARL: Judge, each of these defendants in this

case has pled guilty to charges returned by a lawfully con-

stituted Grand Jury. I don’t see the problem. I don’t know

where the evidence is that this superseding indictment

was necessarily invalid.

[3] As we informed the Court yesterday and defense

counsel, there is an extension order that we believe to

have—we believe the Grand Jury was properly extended.

We believe that the ministerial or clerical mistake is just

that. We are in the vrocess of finding out how it hap-

pened and trying to rectify it.

But, as I said, this Court clearly had jurisdiction in this

case. These defendants have pled guilty to offenses charged

by a lawfully—indisputably lawfully constituted Grand

Jury, and, of course, a plea of guilty waives any defects

in the institution of prosecution. I don’t see how they get

out.

MR. ROLLER: 18 U.S.C. 3331 is quite clear as to the

process by which a grand jury can be extended. It re-

quires an order of the court for each six-month extension.

App. 17

The Special October 1984 Grand Jury was past its 18-

month original session. There has to be a constituted

grand—properly constituted grand jury, and for that grand

jury to have returned a superseding indictment, an order

by the Chief Judge extending them for the additional in-

crements of six months must have been entered.

I don’t think that there is any dispute that there is no

such order in the Clerk’s files in connection with extend-

ing that grand jury, and I do not believe, your Honor,

that defendants are being held in light of an [4] indictment

which was returned by a clearly invalid grand jury.

If there’s no order extending, it was like bringing 26

people off the street and voting to indict.

THE COURT: Well, let me—it wasn’t like bringing 26

people off the street—

MR. ROLLER: Well, I overstated. I apologize.

THE COURT: These people had previously been sworn

to be grand jurors, and had served as grand jurors. But

is there a dispute as to whether there’s a valid order,

Mr. Pearl?

MR. PEARL: There is. As | said, your Honor—

THE COURT: Mr. Roller said it wasn’t disputed.

MR. PEARL: Right.

THE COURT: Is it disputed?

MR. PEARL: I think that’s incorrect. As we informed

the Court in writing, it’s our belief that the grand jury

was, in fact, extended. We are confident of that. And we

are in the process of trying to document it.

THE COURT: Okay.

MR. PEARL: All we informed the Court of was that

the actual—there is no actual minute order at this time

that can be found in the Clerk’s office.

THE COURT: All right, I am applying the—

MR. KING: Your Honor, may I—

App. 18

[5] THE COURT: Yes, Mr. King? Do you have some-

thing to say?

MR. KING: Yes, sir. I know that your Honor is under

time pressure, but this is a matter of great substance.

THE COURT: I will take as much time as you need,

Mr. King—

MR. KING: I appreciate that.

THE COURT: —for you to address me, all right? This

is in on an emergency motion. I allowed time for you to

present it.

MR. KING: I appreciate that.

THE COURT: What would you like to say that Mr.

Roller hasn’t said?

MR. KING: Judge Shadur, in a case pending before him

in which the Government was a party, ruled—

THE COURT: I’m familiar with that. Judge Shadur has

kept all the judges apprised as to his positions, as well

as sent us additional letters citing authority for us.

MR. KING: Without rearguing Judge Shadur’s position,

and I don’t intend to do that to you, I believe that un-

der appropriate rules of authority, the Government is col-

laterally estopped now from taking the position that the

indictments returned by that grand jury are valid. Judge

Shadur has ruled as a matter of law with respect to the

consequences of an improper extension of the @and jury.

[6] Therefore, I believe the Government, as a party to

that proceeding, is collaterally estopped, and I believe that

this Court is now bound by the proposition that orders

and indictments returned by a grand jury which is not

clearly, on its face, a validly constituted and extended

grand jury are invalid.

If the indictments are invalid, your Honor, there is no

basis to hold the defendants in custody.

THE COURT: Mr. Pearl, are you appealing that deci-

sion?

App. 19

MR. PEARL: I can’t say, but I can say two things, one,

that—

THE COURT: You have got 30 days, of course, to file—

MR.PEARL: Yes, and I’m sure Mr. King, if he checked,

would realize that the grand jury in the case before Judge

Shadur was not the same grand jury that’s involved in

this case, and, second, of course, Judge Shadur doesn’t

bind the rest of the court.

MR. ROLLER: But the issue is the same—

THE COURT: I understand the issue is the same—

MR. PEARL: No. And there were no pleas of guilty

in that case.

THE COURT: —and I am following Judge Shadur. Judge

Shadur has been very conscientious in keeping all the

[7] other judges apprised as to precisely what he is do-

ing. He has provided us with materials, as he does in a

number of issues that come up. Judge Shadur is of the

mind, and I agree with him on this position, that we

should keep one another apprised as to what our decisons

are if they seem to have something that would—another

judge may have to rule on. And so I’m aware of it.

But I will tell you right now there is nothing before

me that would indicate that this grand jury that returned

the indictment that’s pending now was invalid.

MR. KING: Judge—

THE COURT: There is nothing before me.

MR. KING: The Government has told you that they are

unable to demonstrate to you, standing here—

THE COURT: Mr. King—

MR. KING: —that there is jurisdictional authority for

this Court.

THE COURT: Okay, thank you, Mr. King. I was aware

of that, and I took that into account. The Government

has told me that. But I have nothing before me to indi-

App. 20

cate that this Grand Jury was invalidly constituted at the

time that it returned this indictment.

MR. KING: You have the Government admission that—

THE COURT: Mr. King,—

MR. KING: You have the—

{8] THE COURT: Is there something else, some other

piece of evidence that you would like to present to me?

MR. KING: Judge, yes, I want to make as complete a

record as I think is appropriate.

THE COURT: Please do.

MR. KING: Thank you.

The Government has said to you that they are unable

to demonstrate to you that there was a valid extension

order with respect to this Grand Jury. In the absence of

that, the Court is without jurisdiction, and the indictment

before, which—which is pending before you and on which

the defendants are being held is a nullity, it’s without

legal consequence.

The guilty pleas were not completed because sentences

had not been imposed. It was simply an interim step in

the proceedings. I believe that those pleas are all invalid.

I don’t address the question of what arises with respect

to any defendant who has already been sentenced, whose

case arguably is over with, but with respect to Mr.

Daniels, it is clear that the proceedings have not been

concluded, that all of his rights are preserved at this

point, and that the pleas are a nullity.

It is also clear that the only authority by which Mr.

Daniels is being held in federal custody at this moment is

this indictment, and the Government is unable to [9] dem-

onstrate to you affirmatively that they can prove to you

and carry their burden of saying that there is a valid in-

dictment pending before you, returned by a validly con-

stituted and extended grand jury.

App. 21

In the absence of that, your Honor, with all due respect,

I believe that there is an invalid proceeding, and that

there is no lawful authority to hold the defendants in cus-

tody. The superseding indictment which is before you is

a nullity.

THE COURT: All right, anything else?

MR. KING: No, sir.

THE COURT: All right, the emergency motion for writ

of habeas corpus is denied.

MR. PEARL: Thank you, your Honor.

MR. KING: Thank you, your Honor.

MR. ROLLER: Thank you.

[Certificate of the Official Court

Reporter omitted in printing]

LT TT TT TT eam

App. 22

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

March 5, 1987.

Before

Hon. WILLIAM J. BAUER, Chief Judge

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

ROOSEVELT DANIELS and

SANDRA CAMPBELL,

Petitioners Petition For Writ

of Mandamus

No. 87-1322 vs.

)

)

)

)

)

)

HONORABLE JAMES F. )

HOLDERMAN, U.S. District )

Court Judge for the Northern )

District of Illinois, Eastern )

Division, )

Respondent )

This matter comes before the court for its considera-

tion of the following documents:

1. “PETITION FOR WRIT OF MANDAMUS” filed herein

on March 4 [sic], 1987, by counsel for the petitioners.

2. “GOVERNMENT'S RESPONSE TO PETITIONERS’

PETITION FOR WRIT OF MANDAMUS” filed here-

in on March 4, 1987, by counsel for the respondent.

The district court has not yet had an opportunity to

evaluate all of the evidence with regard to petitioners’

claim. Judge Holderman will be hearing evidence within

App. 23

the week that will allow him to do so. Further, because

the indictment in question was preceded by two valid in-

dictments, the district court’s determination of this issue

will not affect the petitioners’ custody.

Accordingly, the petition for writ of mandamus is

DENIED as premature.

App. 24

(1)* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

85 CR 232

v.

ROOSEVELT DANIELS, et al., March 12, 1987

)

)

) Chicago, Illinois

)

) 1:34 p.m.

)

Defendants.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE

HONORABLE JAMES F. HOLDERMAN

APPEARANCES:

For the Government: HOWARD M. PEARL and

MARK D. POLLACK,

Assistant U.S. Attorneys

For defendant MICHAEL H. KING and

Roosevelt Daniels: JON K. STROMSTA

For defendant THOMAS ANTHONY DURKIN

Edward Fitzgerald: and JANIS D. ROBERTS

For defendant

Sandra Campbell: DOUGLAS P. ROLLER

For defendant

Kenneth Johnson: JAMES A. GRAHAM

For defendant

Troy Campbell: MARIANNE JACKSON

For defendant

Lawrence Lee: MICHAEL B. COHEN

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 25

[4] * * * * *

MR. PEARL: We are ready to proceed.

MR. GRAHAM: Judge, I think that we are going to

have to have Mr. Johnson in and apprise him of the cir-

cumstances and talk to him exactly as to what he is go-

ing to want to do at this point.

THE COURT: What circumstances are you referring to?

MR. GRAHAM: Well, it was—is there something re-

solved as to the grand jury aspects, Judge?

THE COURT: Well, let’s move to the grand jury aspects.

I have received the Government’s position with regard

to the grand jury. I did not get a chance to review any-

thing from the defense. Was there anything filed?

MR. KING: No, Judge. I indicated to you last week

that we would try—if we got the Government papers on

Monday, we would try to file a written response for to-

day. I got the Government papers—

THE COURT: You told me you would file it [5] yester-

day.

MR. KING: Well, in any event, I got the Government—

THE COURT: Right, but let’s keep it straight.

MR. KING: I—

THE COURT: Have you filed anything?

MR. KING: I have not filed anything.

THE COURT: All right. I have reviewed the Govern-

ment’s materials. The defense has not filed anything in

connection with this matter.

When, Mr. King, if you haven’t filed anything, when do

you think you are going to put something on file? _

> MR. KING: Judge, the thing that the Government filed

creates several issues that require a substantial amount

of research. What I would like to do—

THE COURT: The “thing’’?

MR. KING: Marianne Jackson is here now.

THE COURT: The “thing” that the Government filed?

a

App. 26

MR. KING: The Government response—

THE COURT: The “thing” that the Government filed

was an order by the former Chief Judge of this District.

MR. KING: Yes, sir. That’s the document to which I

make reference.

THE COURT: Yes, Chief Judge McGarr, former Chief

Judge McGarr.

[6] MR. KING: Former Chief Judge McGarr, now Senior

Judge McGarr.

THE COURT: Right.

MR. KING: We would like 10 days to file motions be-

fore you that are responsive to the issues that we think

are now framed.

THE COURT: That request will be denied. You told me

you would get a response in by yesterday. Now you want

10 additional days from today?

MR. KING: Judge, I think that a fair statement is that

we have an issue of substantial importance and complex-

ity, both as to the procedural matters before you, how

best to frame the issues, and how to let them be resolved

in an expeditious way.

THE COURT: Mr. King, wait a second. I read that ma-

terial from the former Chief Judge, and, as far as I could

tell from that material, the grand jury had—and I don’t

have it here in front of me, it’s back in the file—the grand

jury had made its determination to extend, and he, in fact,

had ordered an extension, and there was, as had been

indicated to me before, no minute order or no order in

the court’s file.

Now, having been on the District Court bench for a

while, I have learned that on occasion orders do get mis-

placed, and my understanding of the statement that was

[7] made by Judge McGarr, it was either the order, the

written order, was misplaced, which had previously been

App. 27

entered, or that no written order had been entered, but

he entered one nunc pro tunc.

Isn’t that what was said?

MR. KING: I think that Judge—

THE COURT: —by the former Chief Judge?

MR. KING: Senior Judge McGarr’s order speaks for it-

self. I believe that, as a matter of law—

THE COURT: Well, do you dispute my interpretation

of it? The order speaks for itself.

MR. KING: Judge, I think Judge McGarr’s order is im-

proper on several grounds. I believe that it is not a mat-

ter that can be cured by a nunc pro tunc order. I believe

that there are cases that stand for that proposition. I be-

lieve a fair reading of Judge McGarr’s—

THE COURT: Well, then, why didn’t you present some-

thing to me yesterday, like you said you would?

MR. KING: Judge, what I anticipated the Government

filing was a factual statement. I did not believe—I didn’t

understand that the Government would file what is appar-

ently a combination affidavit/order from Judge McGarr in

which Judge McGarr makes statements about his own

recollection, then passes on those statements, and then

enters an order based on his reading of his own [8] recol-

lection, combining a function that I believe to be improper.

I think that the issues raised by Judge McGarr’s order

are of very serious concern and need substantial research.

I think for several reasons Judge McGarr’s order is a

nullity and is not binding on this Court. I believe it’s—

THE COURT: Wait. You thought Judge Shadur’s order

‘ on another grand jury was not only not a nullity, but in

fact was binding on this Court—

MR. KING: Judge, I don’t believe—

THE COURT: —and now we have got Judge McGarr’s

order, which sets forth the circumstances of what oc-

curred, and now you are saying that’s a nullity?

ll

App. 28

MR. KING: Judge, I believe that what is clear from

Judge McGarr’s order is that there is very great proba-

bility that no order was entered at the time it was re-

quired to be entered.

THE COURT: That’s not what it says here, though.

That’s not what Judge McGarr’s order says.

MR. KING: Judge, I’d like to file a written response

that makes our point—

THE COURT: Well, were you there?

MR. KING: Pardon?

THE COURT: Were you there?

[9] MR. KING: I absolutely was not there. I had no

notice of it.

THE COURT: Judge McGarr was.

MR. KING: Where?

THE COURT: In his courtroom at the time that the

events of which he speaks took place

MR. KING: Judge, I would like to address that and the

matters raised by Judge McGarr’s order. I would like to

do it in written form. I will do it as quickly as I can.

Hopefully, it will be done in a way that you won’t have

multiple filings. But I would like to do it in written form.

I think that—

THE COURT: Why couldn’t you have done it by yester-

day, like you said you would?

MR. KING: I did not anticipate what we would get was

a nunc pro tunc order from a judge which combined ca-

pacities and purported to rule on the motions before you.

I think that those raise substantial questions. I assure you

I am not doing it for purposes of delay. I think that the

matters raised by Judge McGarr’s order are of very great

significance.

THE COURT: Well, I had intended to rule on this mat-

ter today, and when I had not seen anything from the

defense filed as the defense had said—the reason we set

App. 29

up this status report for today was so that you could

[10] file yesterday.

MR. KING: Yes, sir. I told you I was unavailable yester-

day.

THE COURT: Well, that was the other reason, too,

why we set it up. I could have set it up tomorrow.

MR. KING: No, you set it up for my convenience to-

day, and I appreciate that, Judge.

THE COURT: But I guess the reason that I said that

you would file—or you said you would file something yes-

terday was so we could have this status report today, be-

cause you were available today.

MR. KING: Yes, sir.

THE COURT: Now, I was going to rule on this matter.

When I did not see in my files in my chambers that the

defense had responded, I wanted to make sure that the

defense had in fact not responded, just to make sure that

if the defense had responded, it wasn’t somehow mis-

placed in my chambers.

MR. KING: No, I understand, Judge.

THE COURT: Things happen like that, just like per-

haps the minute order with regard to extending the grand

jury.

Well, file something tomorrow. I’ll set the matter over

for status on Monday.

MR. KING: Judge, I will not be prepared to file [11] the

kind of document that is appropriate.

THE COURT: What are you going to file?

MR. KING: I’m going to file a motion to dismiss, I’m

i going to file a legal memorandum in support of it—

THE COURT: Are you going to file anything to rebut

the factual statements of Judge McGarr?

MR. KING: Judge, I am unable to rebut the factual

statements of Judge McGarr without having appropriate

discovery.

App. 30

THE COURT: You mean you now want to take Judge

McGarr’s deposition?

MR. KING: Judge, there are a lot of questions that are

raised by Judge McGarr’s order that I would like to ad-

dress in writing to you.

THE COURT: You mean you don’t think that Judge

McGarr is telling the truth?

MR. KING: I would like to respond to the matters

raised by Judge McGarr’s order in an appropriate way.

THE COURT: I’d like you to answer that question.

MR. KING: Do I think Judge McGarr is lying? No.

How can I say that?

THE COURT: All right, then he’s not.

MR. KING: I have no basis to say that.

THE COURT: Then he’s telling the truth. You have no

basis to dispute the factual statements that are made in

[12] here.

MR. KING: Judge McGarr has filed an order that deals

with his recollection, apparently, with other factual mat-

ters that are not a product of his own recollection.

THE COURT: Every time—

MR. KING: He then purports to evaluate those and

rule on them as a matter of law. He issued a nunc pro

tunc order. What is completely clear from Judge McGarr’s

order is that there was no order entered at the time that

anybody can-produce to you that extended the grand jury.

THE COURT: Well, there was no written order.

MR. KING: What Judge McGarr says in his order is,

“TI either intended to or I may have.” He doesn’t give

you a date, he doesn’t provide you with a transcript of

the proceedings, he provides you with nothing but his con-

clusion. He provides you then with a ruling on his con-

clusion.

THE COURT: What he states in paragraph 10—

App. 31

MR. KING: He has combined capacities.

THE COURT: What he states in paragraph 10—as you

stated earlier, the order speaks for itself—paragraph 10

says:

“Tt now appears that through inadvertence or mis-

take a written extension order was not presented to

or executed by the Court or that such an order was

executed and has since been lost.”

[13] MR. KING: Right.

THE COURT: That’s what he says.

MR. KING: And on two of those three possibilities, the

indictments are invalid on their face, because I don’t be-

lieve that if either one or two occurred and not three that

that can be cured by a nunc pro tunc order.

THE COURT: Well, you know, the statute doesn’t say

anything about written order.

MR. KING: Judge, I would like to address these ques-

tions in writing to you in an appropriate form.

THE COURT: Well, I wanted you to—

MR. KING: I will do that as quickly as I can. I am un-

able to stand here today and give you the legal authority

for the propositions that I think are reasonably straight

forward as a matter of law that will prove to you, I be-

lieve, that this indictment is invalid, that the return by

the grand jury was improper, and that this Court is with-

out jurisdiction with respect to Roosevelt Daniels on the

indictment pending before you.

MR. DURKIN: Judge—

THE COURT: Well, the Government filed—let me just—

: the Government filed on Monday. Can you get something

in by Monday, the 16th? Then you would have had a

week. You have actually been aware of this issue for some

time, since you filed that motion for release of your client

back [14] in February.

MR. KING: Judge McGarr’s nunc pro tune order—

App. 32

THE COURT: Yes?

MR. KING: —is a significant event in terms of the mo-

tion. Judge McGarr’s order needs to be addressed, it needs

to be addressed in an appropriate—

THE COURT: Well, Mr. King, I just asked you can you

do it by Monday?

MR. KING: I don’t believe I can, Judge.

THE COURT: Can you do it by Tuesday?

MR. KING: Judge, I’m going to be out of town Friday,

I’m going to be out of town—

THE COURT: What are you going to be doing out of

town?

MR. KING: I have previous commitments.

THE COURT: You know, Mr. Daniels has another

lawyer standing here, he has other lawyers back in other

law firms. It is crucial that, since you have other commit-

ments on other cases for other clients out of town, that

some other lawyer for Mr. Daniels, since he has a number

of lawyers in this matter, can’t prepare something and

get it filed on Monday?

MR. KING: Judge, I assure you, things are being worked

on as we stand here.

THE COURT: Fine. Can you get them on file by [15] Mon-

day?

MR. KING: I can only give you my best effort. I can’t

commit to something that I don’t know I can deliver on.

THE COURT: Well, you actually had committed to yes-

terday, but—

MR. DURKIN: Judge, could I—

THE COURT: Sure.

MR. DURKIN: —add this for whatever it’s worth—

THE COURT: —since we are not making any headway

here.

MR. DURKIN: —on scheduling?

App. 33

Since I didn’t join in Mr. King’s motion—or the writ

of—the petition—

THE COURT: Well, your guy already was out.

MR. KING: He had won that one.

MR. DURKIN: He had his own—

THE COURT: You were in a different posture than he

was.

MR. DURKIN: But seeing as though I didn’t need a

writ at the time, I had intended to file a motion to dis-

miss that would substantially cover the same issue. I be-

lieve, and I don’t want to belabor it now, but I think

there is some case law to the proposition that Judge

McGarr’s order cannot nunc pro tune the extension of the

grand jury, [16] and that there is a jurisdictional ques-

tion of whether or not an order was entered. I don’t want

to argue it now or belabor it, but I did intend to file a

motion in the nature of a motion to dismiss and to with-

draw the guilty plea based on the Macklin case that I

believe is referred to in Mr. King’s petition. I think there

is—

THE COURT: Wait. Mr. King’s petition? You mean the

one that went to the Seventh Circuit and came back?

MR. DURKIN: I thought it was filed before you, but

maybe it’s the one up in the Seventh Circuit. There is

a case called United States v. Macklin—it’s a Second Cir-

cuit case—that I think speaks of the jurisdictional issue.

The case the Government cites in their response to Mr.

King’s petition is McKay—or Wax v. Motley, and I—

THE COURT: Well, let me just say that on that peti-

tion, I interpreted the Seventh Circuit’s order to basically

moot that petition. The Seventh Circuit in its opinion

stated that the defendants would not be released since

the two other indictments still remain—

MR. DURKIN: I think that’s right. .

EE

App. 34

THE COURT: —even if this indictment that’s pending

is invalid.

MR. DURKIN: No, I think that’s right.

[17] THE COURT: So that really moots that petition.

MR. DURKIN: No, I know—

THE COURT: That’s not viable anymore. That’s been

ruled on by the Seventh Circuit.

MR. DURKIN: I’m only suggesting that on Fitzgerald’s

behalf, I do intend to file as quickly as I can a pleading

based upon Macklin in the nature of a motion to dismiss

and to withdraw the plea.

THE COURT: Well, can you get it on file by Monday?

MR. DURKIN: I will do whatever the Court sees fit.

I think it’s a significant enough issue that I would like

to have more time, but I can get it done by Monday if

the Court—I don’t want—all I’m saying, Judge, is I don’t

want to duplicate the effort, and I believe I can convince

you that we are entitled to some type of evidentiary hear-

ing, and that Judge McGarr’s order can’t nunc pro tunc

the jurisdiction of the grand jury.

THE COURT: Yes, but if Judge McGarr—judges sign

orders every day. If it was up to the Judge’s recollec-

tion as to whether an order was signed and thereafter

lost or whether no order was presented and therefore not

executed, when, in fact, the grand jury had requested an

extension, and the Judge granted the extension, we would

be in a difficult posture.

The way I see Judge McGarr’s order is that [18] he re-

calls exactly what he said, which is that, through inad-

vertence or mistake, a written extension order was not

presented to or executed by the Court, or that such an

order was executed and has since been lost.

Now, it seems to me that if an order was, in fact, ex-

ecuted, and has since been lost, that, under that circum-

stance, the grand jury is not invalid, and, in fact, even

App. 35

if no written extension order was presented, I would have

to review the case law to see what judicial gloss the

judges have put on the extension statute, but, from my

reading of the extension statute, there really is no require-

ment that a written order be entered, and, in fact—

MR. DURKIN: That may be the case.

THE COURT: —if the judge of the district court fails

to extend the grand jury when the grand jury wants to

extend, the grand jury can petition the chief judge of the

circuit, and there’s no indication that the chief judge of

the circuit has to enter a written order.

MR. DURKIN: Maybe it’s because I haven’t been in

this, but is there any reason why there just isn’t a—why

we have to—is there a transcript? Don’t these things occur

in open court?

THE COURT: I only can deal with what’s in front of

me. You are asking me if there’s a transcript. I wasn’t

there.

[19] MR. ROLLER: That’s the reason, I think, Judge—

MR. DURKIN: No, I wasn’t, either, but I mean the

only thing—I mean I don’t want to belabor it now. I think

you may be correct, I may be correct. I don’t know. I

simply wanted to apprise you that that’s what I would

be doing.

If it will make your work easier, instead of having to

rule twice, I can have something on file by Monday or

Tuesday, if that’s fitting.

THE COURT: All right. Well, let’s go back to Mr.

King, then.

Mr. King, with all your obligations out of town, when

do you think you can get something on file?

MR. KING: Judge, I asked for 10 days from today. I—

THE COURT: Why do you need that much time? I

mean that really is a long time.

App. 36

MR. KING: How about—

THE COURT: This case has been pending a long time.

MR. KING: Judge, it has.

THE COURT:~I want to get it to a resolution one way

or the other, and I expect the lawyers to help me out

in that. I, frankly—the fact that you said—you stood right

here and said you would file something by yesterday, I

can’t understand why you just let it go by, didn’t come

[20] in on a motion to apprise me and ask for an exten-

sion of time if that’s in fact, what you wanted: You know,

I hear criminal motions every day at 1:30.

MR. COHEN: Judge, can I be heard for a second?

THE COURT: Certainly.

MR. COHEN: I think this case is obviously going to a

higher court either way.

THE COURT: It is.

MR. COHEN: Right, and I think that it ought to be

put in the proper posture to arrive there.

I have discussed this briefly with Mr. King. If the

Seventh Circuit doesn’t have the full total picture, then

it’s going to bounce up and back and up and back. I think

they ought to get it—we ought to be given 10 days to

present our joint position to you. I see a lot of problems

with Judge McGarr’s order.

THE COURT: But the full total picture, what do you

envision that to be?

MR. COHEN: I think there’s a lot lacking now. We are

dealing with Judge McGarr’s recollection. That might not

be the best evidence of what happened, and we would

like to ascertain if such evidence exists. I’m not talk-

ing about cross-examining Judge McGarr. There are other

avenues that are open to various defendants which we

have sat down and discussed for two hours already to-

day. We are not laying [21] down doing nothing on this.

App. 37

I think it’s a very, very—a substantial issue that has been

raised by Judge McGarr’s order and the grand jury pro-'

ceedings.

MR. KING: Judge, if I could have until the close of

business Thursday, we’ll get the papers on file to you.

Frankly, I want these papers to be the best papers we

ean file, and I want to take a close look at them, and

I want not to have to replow ground already plowed. I’d

like to have whatever motions—

_THE COURT: What ground has been plowed on this

issue?

MR. KING: Pardon?

THE COURT: What ground has been plowed on this

issue?

MR. KING: Well, I think the question of custody has

been dealt with by the Court of Appeals—

THE COURT: Right.

MR. KING: —and so the procedural question of habeas

corpus has now got to be examined as to whether that’s

the proper motion that ought to be before you, whether

there ought—the Government has taken the position that

guilty pleas waive jurisdictional defects, and we don’t

agree with that as a matter of law, but that needs to be

addressed—

THE COURT: Wait, has the Government—the Govern-

ment hasn’t said that here, have they?

[22] MR. KING: They said that in the Court of Appeals,

Judge.

THE COURT: Yes, but, you see, that was on a—

MR. KING: As a matter of fact, they said it before you.

THE COURT: —that was on a writ of habeas corpus

which the Court of Appeals—you took on a mandamus to

the Seventh Circuit, and the Court of Appeals denied the

mandamus, and—

App. 38

MR. KING: —as being premature, yes, sir.

THE COURT: —on grounds of being premature, but

also added in the order— |

MR. KING: Yes, sir.

THE COURT: —something which I consider to be dispo-

sitive of the issue.

MR. KING: Judge, I am absolutely as sensitive as you

are to the language in the Court of Appeals’ erder—

THE COURT: Right.

MR. KING: —and that’s why I want the proper motions

before you, so that you can rule, and the record will be

clear. -

THE COURT: Well, do you agree that that was disposi-

tive of the issue? I mean, the Court of Appeals didn’t

say—

MR. KING: It’s a matter of great substance to [23] me,

I’ll say that.

THE COURT: Pardon me?

MR. KING: It’s a matter of great substance to me that

they said that.

THE COURT: The Court of Appeals didn’t say because

these defendants have pleaded guilty, they waive the ju-

risdictional—

MR. KING: No, they did not.

THE COURT: The Court of Appeals didn’t say that.

MR. KING: No, they did not. —

THE COURT: So whatever the Court of Appeals said

in response to your petition for mandamus, that has no

bearing on anything that’s pending before me.

MR. KING: Well, as a matter of fact, my recollection

is—I may be wrong—my recollection is Mr. Pearl said that

to you also when we were before you on that Friday.

THE COURT: But that has no bearing on me on this

point now. That was on something that has already been

decided—

App. 39

MR. KING: Judge, the issue is—

THE COURT: —by the Court of Appeals.

MR. KING: The issue, the broad issue, is, is there a

valid indictment before you. We want that issue formed

and shaped in a way that’s appropriate, clean, and you

can rule on it, the Government can respond, and whatever

will [24] happen will happen with respect to that.

I don’t want part of a habeas corpus that may be with-

out foundation because of the custody indication by the

Appellate Court.

Frankly, I think this is a time when—

THE COURT: It was more than an indication. It was

a ruling.

MR. KING: Well, no, what the ruling was is that it was

denied as premature. The ruling wasn’t that it’s denied

as being—

THE COURT: Well, okay, it was instructive.

MR. KING: I accept that.

THE COURT: And I must follow the instructions of the

Seventh Circuit. That’s my job.

MR. KING: I accept that, Judge. I think it’s appropri-

ate that the issues be framed properly before you, and

this is a time—you are absolutely correct, this case has

gone on a very long time—this is a time, I believe, a point

where an extra day or two will save a lot of time and

a lot of confusion and will save a lot of unnecessary time

later on if clean narrow issues are presented to you and

you can rule on them in whatever way the Court deems

appropriate.

THE COURT: If 1 firmly believed that giving you more

time would make the issues narrower or cleaner, I would

[25] do it.

MS. ROBERTS: Judge, on behalf of Mr. Fitzgerald—

on behalf of Mr. Fitzgerald, I believe that giving us until

App. 40

some time next week, all defendants, at least Mr. Fitz-

gerald, time to properly put this issue before the Court,

will make it cleaner, and therefore make the record clearer

for the Seventh Circuit, which is obviously going to have

to decide this question.

My reading, and I—

THE COURT: All right, I’m going to give the defen-

dants all the time they want. You want 10 days. Ten days

runs off on Sunday, March 22nd. You have until March

23rd to file any motions, any memoranda in support there-

of, in connection with what we will broadly call—or what

you have broadly called the validity of the indictment.

MR. KING: Thanks, Judge.

THE COURT: You are welcome.

* * * *

[Certificate of the Official Court

Reporter omitted in printing]

App. 41

[1]* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

85 CR 232

Vv.

ROOSEVELT DANIELS, et al., April 8, 1988

)

)

)

) Chicago, Illinois

)

) 1:30 p.m.

)

Defendant.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE \.

HONORABLE JAMES F. HOLDERMAN

APPEARANCES:

For the Government: HOWARD M. PEARL and

VICTORIA J. PETERS

Assistant U.S. Attorneys

For defendant MICHAEL H. KING and

Roosevelt Daniels: ALLAN A. ACKERMAN

For defendant

Edward Fitzgerald JOHN ESPAR

For defendant

Kenneth Johnson: GLENN SEIDEN

* * * * *

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 42

[6] MR. ACKERMAN: There has been a unanimity of ac-

knowledgment on that score, your Honor.

THE COURT: All right.

All right, with regard to the defendants’ motion to dis-

miss the second superseding indictment and request for

an evidentiary hearing, I believe that all the pertinent

issues that need to be dealt with in connection with that

motion have been dealt with by the Seventh Circuit in

United States v. Taylor. That case dealt with a codefen-

dant in this case.

The statements made by the Seventh Circuit with re-

gard to the facts that were before it in connection with

Mr. Taylor’s case are precisely the facts that would be

before me in connection with the determination as to the

codefendants. I believe the grand jury was validly ex-

tended, and the indictment need not be dismissed on that

basis. Consequently, that motion will be denied, and

there’s no need for an evidentiary hearing, since all the

pertinent facts really are clear in the record.

All right, with regard to the defendants’ motion to re-

cuse me from dealing with the motions to withdraw the

guilty pleas, it seems to me that that motion is, in fact,

premature, because at this point I am certainly capable

of dealing with the motion to withdraw the guilty pleas.

[10] * ¢ @ @ &

MR. KING: Your Honor, on the—have you finished that

matter, Judge?

THE COURT: Yes. Is there anything else we need to

discuss today?

MR. KING: On the motion to dismiss the indictment,

you talked about—in your ruling you mentioned the im-

pact of the Taylor opinion on the factual determinations.

There were some grounds that were asserted in that mo-

tion that really did not deal with Taylor that dealt with

App. 43

effective assistance of counsel and the proceedings that

had occurred with respect to the pending motions.

I just wanted to be clear that you were addressing

those also in your ruling, so the record would be clear.

THE COURT: The entire motion to dismiss is denied.

MR. KING: Thank you.

MR. SEIDEN: Does that conciude the matter, Judge?

THE COURT: Call the next case.

* * * * xX

[Certificate of the Official Court

Reporter omitted in printing]

App. 44

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

April 25, 1988.

Before

Hon. JOHN L. COFFEY, Cireuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

No. 88-1750

Petition for

Writ of Mandamus.

No. 85 CR 232

Judge

James F. Holderman

IN THE MATTER OF:

ROOSEVELT DANIELS,

SANDRA CAMPBELL,

LAWRENCE LEE, EDWARD

FITZGERALD, and

KENNETH JOHNSON,

Petitioners.

me ee ee eee ee ee

This matter comes before the court for its considera-

tion of the “PETITION FOR WRIT OF MANDAMUS” filed

herein on April 19, 1988, by counsel for the petitioners.

In U.S. v. Taylor, No. 87-1378, slip op. (7th Cir. Feb-

ruary 17, 1988), this court made the legal determination

that the special October 1984, grand jury was properly

constituted when it turned in indictments beyond its

initial 18 month term. That decision controls this case.

Accordingly,

IT IS ORDERED that said motion is DENIED.

App. 45

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Roosevelt DANIELS, et al.,

Defendants-Appellants.

No. 88-1767.

United States Court of Appeals,

Seventh Circuit.

Submitted May 16, 1988.

Decided May 31, 1988.

* kK Kk &

Before COFFEY, FLAUM and EASTERBROOK, Circuit

Judges.

EASTERBROOK, Circuit Judge.

The five defendants in this case pleaded guilty to crim-

inal charges filed against them but have not been sen-

tenced. They have moved to withdraw their pleas on the

ground that the grand jury that indicted them was serv-

ing beyond its term. After this court rejected a challenge

to the tenure of the same grand jury, United States v.

Taylor, 841 F.2d 1300 (7th Cir.1988), the district court

declined to set aside the pleas. Contending that they want

to make arguments not considered in Taylor, the defen-

dants filed an interlocutory appeal.

The defendants have not been sentenced, so the appeal

is premature. See United States v. Hollywood Motor Car

Co., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982)

(claim that the indictment is based on prosecutorial vin-

dictiveness may not be appealed before judgment); United

States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56

L.Ed.2d 18 (1978) (claim that the prosecution violates the

App. 46

Speedy Trial Clause may not be appealed before judg-

ment). The defendants assert that because of United

States v. Mechanik, 475 1).S. 66, 106 S.Ct. 938, 89 L.Ed.

2d 50 (1986), they will be unable to present any objection

to the term of the grand jury on appeal from a final judg-

ment, so they must be able to raise it now. There are

three flaws in that position.

First, Mechanik holds only that once a defendant’s guilt

has been established beyond a reasonable doubt, he may

not raise objections to those portions of the grand jury’s

procedure that are designed to prevent the accusation of

innocent persons. See United States v. Fountain, 840 F.2d

509, 514-15 (7th Cir.1988). The authoritative determina-

tion of guilt establishes that any defects in the procedure

did not lead to the accusation of an innocent person and

shows that obtaining a new indictment would be a charade.

Some rules, such as the ban on racial) discrimination in

the selection of grand jurors, serve other or additional

ends and may be invoked to contest an indictment ev2n

after conviction. Vasquez v. Hillery, 474 U.S. 254, 106

S.Ct. 617, 88 L.Ed.2d 598 (1986); Mechanik, 475 U.S. at

70 n. 1, 106 S.Ct. at 941-42 n. 1. Whether the grandJury

was serving beyond its time is unrelated to the guilt or

innocence of the defendants, so the authoritative resolu-

tion of their guilt at trial probably would not preclude

making such a claim, if it is otherwise a ground for re-

versal. (Given the considerations discussed below, we need

not decide whether “probably” is a necessary qualifier.)

Second, to the extent a resolution of factual guilt or in-

nocence blots out a challenge to the proceedures used

before a grand jury, the defendants have lost their abil-

ity to pursue these claims already. They pleaded guilty,

and a plea is as effective as a jury verdict in establishing

factual guilt. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct.

1602, 36 L.Ed.2d 235 (1973); Brady v. United States, 397

App. 47

U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The impo-

sition of sentence on the pleas will not eliminate any claim

defendants now possess. Of course they may possess none,

for the plea of guilty surrenders any objections to defects

in the institution of the proceedings that could have been

raised as defenses. See Tollett, Brady, and, e.g., McMann

v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d

763 (1970). Perhaps defendants wish to present arguments

along the line of Menna v. New York, 423 U.S. 61, 96

S.Ct. 241, 46 L.Ed.2d 195 (1975), and Blackledge v. Perry,

417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); as the

issue has not been briefed we do not say that the attack

on the grand jury is forfeit. It is enough to say that im-

position of sentence will not cause the defendants’ posi-

tion to deteriorate further.

Third, to the extent Mechanik bars review of grand jury

questions on appeal from the final judgment, it does so

because any errors are too insignificant to call for cor-

rection. If the errors are too insignificant after convic-

tion, they are too insignificant before conviction. The Su-

preme Court has emphasized many times that criminal

cases should not be interrupted by interlocutory appeals

except in the most compelling circumstances. Multiple ap-

peals produce leaden-footed justice and divert the time

of courts from more pressing questions raised by other

parties. See Cobbledick v. United States, 309 U.S. 323,

324-26, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). Interlocu-

tory appeals on the approach of Abney v. United States,

431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), de-

pend on the existence of a “right not to be tried’’—in

Abney, a right under the Double Jeopardy Clause. A

“right not to be tried’’ is lost if not vindicated before trial.

Defects in the initiation of the proceedings do not create

“rights not to be tried’”’. Hollywood Motor Car holds that

objections to the procuring of an ‘ndictment may not be

App. 48

raised by interlocutory appeal. Grand jury claims there-

fore may not be raised by interlocutory appeal. United

States v. LaRouche Campaign, 829 F.2d 250 (1st Cir.1987);

contra, United States v. Dederich, 825 F.2d 1317 (9th Cir.

1987). It may be that under Mechanik some claims are

“lost” as a result of the trial. But this occurs, the Court

emphasized, only when the results of the trial show that

the claim was not serious to begin with. The possibility

that a claim might be lost because any error was harm-

less is hardly a reason why the court should entertain

an interlocutory appeal on the same subject. If that were

enough to justify an appeal, every objection to a grant

or denial of civil discovery would be appealable.

Many issues concerning discovery, class certification, the

grant or denial of stays, and the disqualification of coun-

sel are neither appealable before trial nor grounds for

reversal after trial. E.g., Gulfstream Aerospace Corp. v.

Mayacamas Corp., __. U.S. ___., 108 S.Ct. 1133, 99 L.

Ed.2d 296 (1988) (stays); Flanagan v. United States, 465

U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (disqualifi-

cation of counsel in criminal case); Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d

571 (1981) (disqualification of counsel in civil case); Coopers

& Lybrand v. Livesay, 487 U.S. 463, 98 S.Ct. 2454, 57

L.Ed.2d 351 (1978) (class certification); In re Schmidt, 775

F.2d 822 (7th Cir.1985) (disqualification of counsel before

grand jury). To say that a question may evade appellate

review is not to say that it will evade judicial review;

the district court has considered (and rejected) the defen-

dants’ contentions. If any error is sufficiently important

to call for reversal on appeal from the final judgment, the

defendants will have relief then; if it is not sufficiently

material to call for reversal, there is no reason for appel-

late review at any time.

The appeal is dismissed for want of jurisdiction.

App. 49

(1]* IN THE

UNITED STATES DISTRICT COURT

NOR’ HERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

85 CR 232

v.

ROOSEVELT DANIELS, et al., February 26, 1987

)

)

)

) Chicago, Illinois

)

) Afternoon session

)

Defendants.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE

HONORABLE JAMES F. HOLDERMAN

APPEARANCES:

For the Government: HOWARD M. PEARL,

VICTORIA J. PETERS and

MARK D. POLLACK,

Assistant U.S. Attorneys

For defendant

Kenneth Johnson: GLENN SEIDEN

* * * * *

[9] MS. PETERS: Ill call the two attorneys that are in-

volved and report back to Ms. Branch.

THE COURT: All right.

Let me just ask the Government, before you leave—

MS. PETERS: Oh, I wasn’t leaving. We have got the

Rone hearing for Troy Campbell that—

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 50

THE COURT: Okay. I guess before we leave the case

of Kenneth Johnson, what is the Government’s position

with regard to this issue which you mentioned in your

motion?

MR. PEARL: Judge, it’s our position that in this case

there’s no question that the Court had jurisdiction ir-

respective of what might turn out to be the case with

respect to the extension of the Grand Jury for the third

indictment.

The first two indictments are unquestionably valid,

which would grant this Court jurisdiction. The only possi-

ble issue would involve the additional counts added in the

third indictment which applies only to Mr. Daniels, some

telephone counts. I think they are valid, anyway.

I don’t think it’s a problem, but before we addressed

all those issues, we thought we should apprise the Court

first of the problem and, second, find out what the facts

are.

MS. PETERS: This is something that we have only

[10] recently learned about, and until we learn all the

facts, it’s hard for us to really articulate what our legal

position is, because they are all fact-dependent.

THE COURT: All right. Well, let me know the next

time we see one another.

MS. PETERS: Believe me, there are a lot of people in

our office working on it.

THE COURT: All right.

[Certificate of the Official Court

Reporter omitted in printing]

App. 51

RECEIVED

MAR 3, 1987

FRANK J. McGARR

U.S. DISTRICT COURT

SENIOR JUDGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN THE MATTER OF THE )

) Judge

SPECIAL OCTOBER 1984 ) Frank J. McGarr

)

GRAND JURY )

ORDER~-—

On motion of the UNITED STATES OF AMERICA, by

ANTON R. VALUKAS, United States Attorney for the

Northern District of Illinois, the Court finds as follows:

1. On September 10, 1984, Acting Chief Judge Prentice

Marshall entered an order calling for a special grand jury

to be convened under 18 U.S.C. §§ 3331(a) and 3332(b).

Pursuant to that order, the Special October 1984 Grand

Jury was convened in October 1984.

2. In March 1986, the Special October 1984 Grand Jury

voted unanimously to extend its term of service for an

additional period of six months. The grand jury informed

the deputy clerk of its decision, and instructed the deputy

clerk to present a motion for a judicial order of exten-

sion. A motion to extend the grand jury was prepared

by the United States Attorney’s Office.

3. The foreman and other members of the Special Oc-

tober 1984 Grand Jury recall that they appeared before

App. 52

this Court in March 1986, and that at that time this Court

extended the grand jury’s term of service.

4. The Court recalls that in March 1986 the Special Oc-

tober 1984 Grand Jury appeared before the Court, and

the Court extended the grand jury’s term of service.

_ 5. As Chief Judge for the District Court of the North-

ern District of Illinois, I was familiar in March 1986 with

the volume of business being conducted before the Special

October 1984 Grand Jury.

6. In the six months following the Court’s March 1986

extension of the grand jury’s term of service, the Special

October 1984 Grand Jury appeared on numerous occasions

before this Court to return indictments and to conduct

other business. This Court also entered orders substituting

grand jurors to allow the grand jury to continue opera-

tions. On all of these occasions, the Court considered the

grand jury to be a properly extended special grand jury,

and the Court treated it as such.

7. The Court determined in March 1986, that the grand

jury had additional matters to transact, had not yet com-

pleted its business, and should therefore be extended

another six months.

8. Based on the Court’s dealings with the Special Oc-

tober 1984 Grand Jury, and the Court’s own recollections,

the Court finds that it intended to, and did in fact order

in March 1986 that the Special October 1984 Grand Jury

continue to serve for an additional six months. This con-

clusion is supported by the fact that between March and

September 1986 the Court considered the grand jury to

be a properly extended grand jury, and it treated the

grand jury as such.

9. The Clerk of the District Court for the Northern

District of Illinois has been unable to locate a March 1986

App. 53

judicial order extending the term of service of the Special

October 1984 Grand Jury.

10. It now appears that, through inadvertence or mis-

take, a written extension order was not presented to, or

executed by the Court, or that such an order was ex-

ecuted and has since been lost.

11. In view of the Court’s contemporaneous determina-

tion that the grand jury had not completed its business,

and in view of the Court’s recollection that it extended

the grand jury’s term of service, the Court finds that any

failure to enter a written extension order was non-sub-

stantive and ministerial.

12. In order that the record may “speak the truth”’

and reflect accurately the Court’s original intentions and

orders, it is necessary that the Court enter an order nunc

pro tunc extending the term of service of the Special Oc-

tober 1984 Grand Jury.

13. THEREFORE, IT IS HEREBY ORDERED that the

Special October 1984 Grand Jury be extended from March

25, 1986 to September 25, 1986.

14. Based on the nunc pro tunc order of extension en-

tered herein and based on the other findings the Court

has made in this order, the Court further finds and holds

that the validity of all the indictments returned by the

Special October 1984 Grand Jury during the period March

25, 1986, to September 25, 1986, is not affected by any

failure to enter a written extension order in March 1986.

ENTER:

/s/ FRANK J. MCGARR

DATED:

App. 54

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case Number: Date: MAR 3, 1987

Name of Assigned Judge: FRANK J. McGARR

Case Title: IN THE MATTER OF THE SPECIAL

OCTOBER 1984 GRAND JURY

MOTION: GOVERNMENT’S MOTION TO COMPLETE

DISTRICT COURT CLERK’S FILE.

DOCKET ENTRY:

(1) LJ Judgment is entered as follows:

(2) & [Other docket entry:] .

ORDERED that the Special October 1984 Grand

Jury be extended from March 25, 1986 to Sep-

tember 25, 1986 ete.

(3) & Filed motion of [use listing in “MOTION” box

above].

*x* * *k* kK *

(12) & [For further detail see () order on reverse of

XJ order attached to the original minute order

form. ]

No notices required.

* * * +* *

App. 55

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

No. 85 CR 232

V.

Honorable

James F. Holderman

— ~~” Se Se”

ROOSEVELT DANIELS, et al.

GOVERNMENT’S REPORT TO THE COURT

CONCERNING THE MARCH 1986 EXTENSION OF

THE TERM OF SERVICE OF THE

SPECIAL OCTOBER 1984 GRAND JURY

Now comes the United States of America, by and through

its attorney, ANTON R. VALUKAS, and submits the fol-

lowing report to the Court concerning the March 1986 ex-

tension of the term of service of the Special October 1984

Grand Jury.

On March 3, 1987, Judge Frank J. McGarr issued an

order detailing the facts surrounding the March 1986 ex-

tension of the Special October 1984 Grand Jury. (Exhibit

A). In March 1986, the Special October 1984 Grand Jury

voted to extend its term of service for an additional six

months. (/d. at par. 2). Judge McGarr, the foreman and

other members of the grand jury recall that in March

1986, the grand jurors appeared before Judge McGarr, and

that Judge McGarr extended the grand jury’s term of ser-

vice. (Jd. at pars. 3-4). Judge McGarr stated in the order

that although the Clerk’s office has been unable to locate

a March 1986 order extending the grand jury’s term, “‘the

Court finds that it intended to, and did in fact order in

March 1986 that the Special October 1984 Grand Jury con-

tinue to serve for an additional six months.” (/d. at pars.

App. 56

8-9). Finding that “through inadvertence or mistake, a

written extension order was not presented to, or executed

by the Court, or that such an order was executed and

has since been lost,” Judge McGarr entered an order nunc

pro tunc extending the term of service of the Special Oc-

tober 1984 Grand Jury from March 25, 1986 to September

25, 1986. Ud. at pars. 12-13).

Based on that nunc pro tunc order of extension and

the other findings in that order, Judge McGarr held that

“the validity of all indictments returned by the Special

October 1984 Grand Jury during the period March 25,

1986, is not affected by any failure to enter a written ex-

tension order in March 1986.” (/d. at par. 14).

Judge McGarr’s nunc pro tunc order extending the term

of service of the Special October 1984 Grand Jury and

his finding that the indictments returned by that grand

jury during its extended term are valid establish conclu-

sively that the grand jury was properly extended and that

the second superceding indictment in the case was valid-

ly returned. The validity of Judge McGarr’s nunc pro tunc

extension order is not a proper subject for an adversary

proceeding. Wax v. Motley, 510 F.2d 318, 321 (2nd Cir.

1975).

For these reasons, the government respectfully requests

that this Court deny defendants’ petition for a writ of

habeas corpus.

Respectfuily submitted,

ANTON R. VALUKAS

United States Attorney

ay: x

Howard M. Pearl

Assistant United States Attorney

HMP/de

App. 57

EXHIBIT A RECEIVED

MAR 3, 1987

FRANK J. McGARR

U.S. DISTRICT COURT

SENIOR JUDGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN THE MATTER OF THE

Judge

SPECIAL OCTOBER 1984 Frank Jj. McGarr

—~— ee

GRAND JURY

ORDER

On motion of the UNITED STATES OF AMERICA, by

ANTON R. VALUKAS, United States Attorney for the

Northern District of Illinois, the Court finds as follows:

1. On September 10, 1984, Acting Chief Judge Prentice

Marshall entered an order calling for a special grand jury

to be convened under 18 U.S.C. §§ 3331(a) and 3332(b).

Pursuant to that order, the Special October 1984 Grand

Jury was convened in October 1984.

2. In March 1986, the Special October 1984 Grand Jury

voted unanimously to extend its term of service for an

additional period of six months. The grand jury informed

the deputy clerk of its decision, and instructed the deputy

clerk to present a motion for a judicial order of exten-

sion. A motion to extend the grand jury was prepared

by the United States Attorney’s Office.

3. The foreman and other members of the Special Oc-

tober 1984 Grand Jury recall that they appeared before

this Court in March 1986, and that at that time this Court

extended the grand jury’s term of service.

App. 58

4. The Court recalls that in March 1986 the Special Oc-

tober 1984 Grand Jury appeared before the Court, and

the Court extended the grand jury’s term of service.

5. As Chief Judge for the District Court of the North-

ern District of Illinois, I was familiar in March 1986 with

the volume of business being conducted before the Special

October 1984 Grand Jury.

6. In the six months following the Court’s March 1986

extension of the grand jury’s term of service, the Special

October 1984 Grand Jury appeared on numerous occasions

before this Court to return indictments and to conduct

other business. This Court also entered orders substituting

grand jurors to allow the grand jury to continue opera-

tions. On all of these occasions, the Court considered the

grand jury to be a properly extended special grand jury,

and the Court treated it as such.

7. The Court determined in March 1986, that the grand

jury had additional matters to transact, had not yet com-

pleted its business, and should therefore be extended

another six months.

8. Based on the Court’s dealings with the Special Oc-

tober 1984 Grand Jury, and the Court’s own recollections,

the Court finds that it intended to, and did in fact order

in March 1986 that the Special October 1984 Grand Jury

continue to serve for an additional six months. This con-

clusion is supported by the fact that between March and

September 1986 the Court considered the grand jury to

be a properly extended grand jury, and it treated the

grand jury as such.

9. The Clerk of the District Court for the Northern

District of Illinois has been unable to locate a March 1986

judicial order extending the term of service of the Special

October 1984 Grand Jury.

App. 59

10. It now appears that, through inadvertence or mis-

take, a written extension order was not presented to, or

executed by the Court, or that such an order was ex-

ecuted and has since been lost.

11. In view of the Court’s contemporaneous determina-

tion that the grand jury had not completed its business,

and in view of the Court’s recollection that it extended

the grand jury’s term of service, the Court finds that any

failure to enter a written extension order was non-sub-

stantive and ministerial.

12. In order that the record may “‘speak the truth”

and reflect accurately the Court’s original intentions and

orders, it is necessary that the Court enter an order nunc

pro tunc extending the term of service of the Special Oc-

tober 1984 Grand Jury.

13. THEREFORE, IT IS HEREBY ORDERED that the

Special October 1984 Grand Jury be extended from March

25, 1986 to September 25, 1986.

14. Based on the nunc pro tunc order of extension en-

tered herein and based on the other findings the Court

has made in this order, the Court further finds and holds

that the validity of all the indictments returned by the

Special October 1984 Grand Jury during the period March

25, 1986, to September 25, 1986, is not affected by any

failure to enter a written extension order in March 1986.

ENTER:

/s/ FRANK J. MCGARR

DATED:

[Affidavit of Mailing and Service

List omitted in printing]

App. 60

(Letterhead Of)

ROSS & HARDIES

March 9, 1987

By Messenger

Hon. Frank J. McGarr

U.S. District Court

for the Northern District

of Illinois

219 South Dearborn Street

Suite 1846

Chicago, IL 60604

Re: The Special October 1984 Grand Jury

Dear Judge McGarr:

I represent Roosevelt Daniels in Indictment No. 85 CR

232, pending before Judge James F. Holderman of this

court, an indictment returned by the Special October 1984

Grand Jury. I have already filed motions before Judge

Holderman and in the Seventh Circuit regarding the valid-

ity of indictments returned by that Grand Jury and par-

ticularly dealing with the questions involved in the alleged

failure to properly extend that Grand Jury. Judge Holder-

man has scheduled a status report on my motion for March

12, 1987.

I am informed that you are in the process of entering

some form of order relating to the previous lack of proper

extension of that and other grand juries or have already

done so. Such an order would significantly affect the con-

stitutional rights of my client Mr. Daniels. I believe it

would be improper for you to enter such an order with-

out notice to al] parties who might be affected, including,

App. 61

particularly, my client. I believe you are now without juris-

diction as to that Grand Jury and you are without juris-

diction as to any indictments returned by that Grand Jury

which are not pending before you. To the extent that you

are attempting to or your orders may have the effect of

impacting pending cases before other judges, I believe it

would be a violation of the rights of the defendants in

those cases for you to enter any order without notice, ap-

propriate discovery and a hearing before a neutral judge.

To the extent that you are making legal rulings, I be-

lieve it to be an improper exercise of your authority since

my client’s case is not assigned to you. To the extent that

you are making a factual determination, you are in no dif-

ferent posture than any other witness and are not acting

in a judicial capacity under those circumstances. I believe

I have the right to take your deposition or such other

discovery as may be appropriate under the circumstances

to develop a complete factual record.

I wish to be heard in open court on this matter prior

to your taking any action. If my information is incorrect

and you have not been requested to, have not or do not

intend to take any action regarding the Special October

1984 Grand Jury and any procedural orders relating there-

to, I apologize for taking the court’s time. If to your

knowledge any other judge of the Northern District is

contemplating such action, I request you furnish this let-

ter to him or her and notify me of the identity of such

judge and a time when I may be heard. While I do not

represent any other defendants who I know at this time

will be impacted by any such proposed action by you or

any other judge, I reiterate my belief that prior to your

taking any action you have an obligation to inform coun-

sel for all defendants who might be impacted by such an

order.

le

ec:

App. 62

Respectfully submitted,

/s/ MICHAEL H. KING, P.C.

Michael H. King, P.C.

Hon. John F. Grady, Chief Judge

Marianne Jackson, Esq.

Douglas P. Roller, Esq.

Allan A. Ackerman, Esq.

Michael B. Cohen, Esq.

Glenn Seiden, Esq.

Thomas A. Durkin, Esq.

Chester Slaughter, Esq.

Douglas Morrison, Esq.

Howard M. Pearl, Assistant U.S. Attorney

App. 63.

(Letterhead Of)

UNITED STATES DISTRICT COURT

March 10, 1987

Mr. Michael H. King

Ross & Hardies

150 North Michigan Avenue

Chicago, Illinois 60601-7567

Dear Mr. King:

I have your letter of March 9 indicating that you repre-

sent a defendant in the district court and on his behalf

have filed motions attacking the validity of indictments

returned by the Special October 1984 Grand Jury.

In your letter, you indicate that you believe I am in

the process of entering some form of order with regard

to that grand jury situation, and assert your right on

behalf of your client to appear and be heard on that sub-

ject.

Before receipt of your letter, I did enter an order with

regard to that situation, which I regarded as ministerial

and intended only to correct the record. I did not believe

at the time that it was necessary to give notice or af-

ford an opportunity to be heard.

Upon receipt of your letter, I have reconsidered the

matter and it is still my decision that my order was ap-

propriately entered without notice or hearing.

Sincerely,

/s/ FRANK J. MCGARR

Frank J. MeGarr

bjb

cee:

App. 64

The Honorable John F. Grady

The Honorable James F. Holderman

. Marianne Jackson

. Douglas P. Roller

. Allan A. Ackerman

. Michael B. Cohen

. Glenn Seiden

. Thomas A. Durkin

. Chester Slaughter

. Douglas Morrison

. Howard M. Pearl

. Anton R. Valukas

App. 65

(1)* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

85 CR 232

v.

ROOSEVELT DANIELS, et al.,

Defendants.

April 22, 1988

)

)

)

) Chicago, Illinois

)

) 10:42 a.m.

)

TRANSCRIPT OF PROCEEDINGS

BEFORE THE

HONORABLE JAMES F. HOLDERMAN

APPEARANCES:

For the Government: DAVID J. STETLER

HOWARD M. PEARL and

VICTORIA J. PETERS

Assistant U.S. Attorneys

For defendant Daniels: JON K. STROMSTA and

KURT H. FEUER

For defendant

Sandra Campbell: DOUGLAS P. ROLLER

[3] * * * * *

MR. STROMSTA: We did speak with Mr. Cohen and

Mr. Durkin about dates on their calendars, and we have

some proposed dates in the month of May.

* Numbers in brackets refer to the Court Reporter's original

pagination of the Transcript of Proceedings.

App. 66

THE COURT: Why so long? Why can’t we—you know,

I waited so that the Court of Appeals could make a de-

termination. You have now attacked my waiting for the

Court of Appeals to make its decision. Since that time

you filed what is I consider a frivolous appeal. And in

Mr. King’s letter to me, he suggested that we change this

date today.

Now, I assume that with that suggestion, that the defen-

dants—and he was acting on behalf of all the defendants,

I assumed—the defendants were ready to proceed at a

prompt date thereafter.

MR. STROMSTA: The first dates that—we talked to Mr.

Durkin and Mr. Cohen also—the 9th or the 11th—

THE COURT: Well, of course. That’s in the middle of

the Judicial Conference, when I’m scheduled to be in In-

dianapolis. That’s why they are free on those dates.

MR. STROMSTA: Well, without those dates, then, it

looks to be the 23rd or 24th of May.

* * * * *

App. 67

[1]* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: )

) Chicago, Illinois

THE SPECIAL OCTOBER, ) ‘Tuesday, March 11, 1986

1984 GRAND JURY. )

TRANSCRIPT OF PROCEEDINGS

BEFORE THE

HONORABLE FRANK J. MC GARR,

CHIEF JUDGE

Court Reporter: MR. ANTHONY W. LISANTI,

United States Courthouse,

219 South Dearborn Street,

Chicago, Illinois, 60604,

312/939-2092

[2] THE CLERK: The Special October, 1984 Grand Jury.

The Special October, 1984 Grand Jury, in open court,

this date, and a quorum being present, presents three big

indictments.

THE COURT: Good afternoon, Ms. Foreman. Good after-

noon, ladies and gentlemen. I haven’t seen you for a

while.

I will accept the return of three indictments, in open

court. I will order them filed.

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 68

The first of these is 86 GJ 229, it names a single defen-

dant, his name is John L. Johnson. And the bond set by

the Magistrate will stand as the bond for Mr. Johnson.

The second indictment is 83 GJ 485, it names a single

defendant. I will order the issuance of a warrant for the

defendant. The bond will be $4,500 on recognizance.

The third indictment is 86 GJ 195, it names a single de-

fendant. He has been detained by the Magistrate without

bond, therefore, I will not set a bond.

Everything going well with your Grand Jury?

THE FOREPERSON: Fine.

THE COURT: Fine. Thank you. Resume your delibera-

tions. The next time, you will find me in the other court-

room again.

[Certificate of the Official Court

Reporter omitted in printing]

App. 69

[1]* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: )

) Chicago, Illinois

THE SPECIAL OCTOBER, ) ‘Tuesday, March 18, 1986

1984 GRAND JURY. ) 4:00 o’clock p.m.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE

HONORABLE FRANK J. MC GARR,

CHIEF JUDGE

Court Reporter: MR. ANTHONY W. LISANTI,

United States Courthouse,

219 South Dearborn Street,

Chicago, Illinois, 60604,

312/939-2092

[2) THE CLERK: The Special October, 1984 Grand Jury.

The Special October, 1984 Grand Jury, in open court,

this date, and a quorum being present, presents two in-

dictments.

THE COURT: Good afternoon, Ms. Foreman and ladies

and gentlemen.

I will accept the return of two indictments, in open

court, and order them filed.

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 70

The first is 86 GJ 210, it names a single defendant. The

bond set by the Magistrate will stand as the bond for that

defendant.

84 GJ 1444 names two defendants. As to each of them,

I will order the issuance of warrants. We will set their

bail at $4,500 on recognizance.

I haven’t seen you for a while. How are things going

with your Grand Jury?

THE FOREPERSON: Fine.

THE COURT: On a rainy day like this, you might as

well be inside working.

Any problems? Good. Resume your deliberations.

[Certificate of the Official Court

Reporter omitted in printing]

App. 71

[1]}* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: )

) Chicago, Illinois

THE SPECIAL OCTOBER, ) Tuesday, April 1, 1986

1984 GRAND JURY. )

TRANSCRIPT OF PROCEEDINGS

BEFORE THE

HONORABLE FRANK J. MC GARR,

CHIEF JUDGE

Court Reporter: MR. ANTHONY W. LISANTI,

United States Courthouse,

219 South Dearborn Street,

Chicago, Illinois, 60604,

312/939-2092

{2} THE CLERK: The Special October, 1984 Grand Jury.

The Special October, 1984 Grand Jury, in open court

this day, and a quorum being present, presents one indict-

ment.

THE COURT: Good afternoon, Ms. Foreman. Good after-

noon, ladies and gentlemen.

I will accept the return of a single indictment, in open

court, 86 GJ 286. It names a single defendant.

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 72

We need not set a bond or issue a warrant, the defen-

dant has already been detained by the Magistrate. I will

order the indictment filed.

Everything going well with your Grand Jury?

THE FOREPERSON: Fine.

THE COURT: Fine. Thank you. Resume your delibera-

tions.

(Certificate of the Official Court

Reporter omitted in printing]

App. 73

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN THE MATTER OF THE )

)

SPECIAL OCTOBER 1984 )

)

GRAND JURY )

ORDER

On motion of the UNITED STATES OF AMERICA by

ANTON R. VALUKAS, United States Attorney for the

Northern District of Illinois, and the Court being fully

informed, the request to replace Randall Eakins and Jef-

frey Hertzberg, both members of the Special October 1984

Grand Jury, for business reasons, is hereby granted.

ENTER:

/s/ FRANK J. MCGARR

JUDGE

MAR 3 - 1986

App. 74

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case Number: Date: March 3, 1986

Name of Assigned Judge: Frank J. McGarr

Case Title: IN THE MATTER OF THE SPECIAL

OCTOBER 1984 GRAND JURY

MOTION: ANTON R. VALUKAS

UNITED STATES ATTORNEY

219 SOUTH DEARBORN STREET

CHICAGO, ILLINOIS 60604

USA VINCENT J. CONNELLY

MOTION TO REPLACE RANDALL EAKINS

AND JEFFREY HERTZBERG, BOTH

MEMBERS OF THE SPECIAL OCTOBER

1984 GRAND JURY, FOR BUSINESS

REASONS is granted.

DOCKET ENTRY: Enter Order

* * *£ *

App. 75

[1]* IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA 85 CR 232

Chicago, Illinois

)

)

Vv. )

) September 2, 1986

)

)

)

ROOSEVELT DANIELS, et al., 11:00 a.m.

Defendants.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE

HONORABLE JAMES F. HOLDERMAN

APPEARANCES:

For the Government: HOWARD M. PEARL,

VICTORIA J. PETERS and

MARK D. POLLACK

Assistant U.S. Attorneys

For defendant MICHAEL H. KING

Roosevelt Daniels: ~~ JON K. STROMSTA

é ALLAN A. ACKERMAN

For defendant

Edward Fitzgerald: THOMAS ANTHONY DURKIN

For defendant

Sandra Campbell: DOUGLAS P. ROLLER

For defendant

Kenneth Johnson: JAMES A. GRAHAM

* Numbers in brackets refer to the Court Reporter’s original

pagination of the Transcript of Proceedings.

App. 76

For defendant

Troy Campbell: MARIANNE JACKSON

For defendant

Lawrence Lee: MICHAEL B. COHEN

* * * * *

(33] Well, maybe the hearing, then, won’t have an impact.

MR. KING: Your Honor, am I assuming you have denied

my motion for a change of venue? |

THE COURT: Well, you didn’t file a written motion—

MR. KING: Yes, sir, that’s right.

THE COURT: —and I think the last time I had indicated

that if you want to file something in writing, you can—

MR. KING: Okay.

THE COURT: —but I will accept your motion today, con-

trary to what I told you earlier, I will accept your motion

today as a motion to recuse me from this case, and I will

deny that motion, because anything that I have learned about

Mr. Daniels, I have learned in my capacity as a federal dis-

trict judge, and the law is abundantly clear—I, myself, even

attacked that law as a practitioner down in the Southern

District of Alabama—the law is abundantly clear that I need

not recuse myself. Frankly—

MR. KING: I’m glad that your Honor agrees with the

issue, though.

THE COURT: I said I attacked it. I did not win. The

Eleventh Circuit agreed with the Government on that.

All right, with regard to the defendant Campbell’s motion

to suppress the electronic surveillance, [34] I have reviewed

the materials that have been submitted to me.

MR. KING: Your Honor, excuse me. I think that with re-

spect to the Campbell motion for electronic surveillance, that

was—I assume that that motion was filed on behalf of Mr.

Daniels also. To the extent that it has not been, we join in

that motion, so whatever rulings or pronouncement the

App. 77

Court wanted to make, they should apply additionally to

defendant Daniels.

MR. COHEN: Defendant Lee also joins in that motion to

suppress. ;

MR. DURKIN: As does—

MR. GRAHAM: Defendant Johnson would also, Judge.

MR. MORRISON: As to defendant Rena Johnson, as well.

MR. DURKIN: As does defendant Fitzgerald.

MS. JACKSON: And Troy Campbell.

Your Honor, I think the motion says it’s brought on behalf

of Ms. Campbell and all the defendants.

THE COURT: It does. That’s why I just referred to it as

that. I will call it defendants’, and you can put the apostrophe

after the “‘s’’ if you desire. It’s a motion to suppress elec-

tronic surveillance. I have reviewed the materials that have

been submitted to me, and | find that under the circum-

stances presented here, defendant Daniels [35] consented to

the recording of the conversations which the Government

seeks to use.

It is clear to me that under the circumstances under

which these recordings were made, under the circum-

stances under which the telephone was utilized by Mr.

Daniels, his consent was clear. No further hearing is

necessary. I feel strongly that the interceptions were proper

under Title 18 United States Code Section 2511(cX2), but

to complete the record, I continue to review the Title 3

objections, and i find that there was sufficient probable

cause presented to Judge Grady for the Title 3 wiretap,

that the Government adequately established the need for

the electronic surveillance utilized in the course of this

investigation, and that the order authorizing the intercep-

tion complied with the requirements of Title 3.

The defendants’ nonspecific argument with regard to the

failure to minimize is inadequate and insufficient to re-

quire a hearing thereon.

App. 78

Furthermore, institutional phones utilized by inmates un-

der these circumstances, in my opinion, offer inmates no

expectation of privacy. It’s clear. I, myself, even before

this motion was presented, observed the notices that are

placed at the Metropolitan Correctional Center. I observed

those when I was a defense lawyer before this Court.

I think that there is no reasonable expectation [36] of

privacy with regard to those.

But the basis of my holding is that Mr. Daniels con-

sented and, therefore, the motion is denied.

MR. KING: Your Honor, may I ask a question about

that?

THE COURT: Sure.

MR. KING: When you say that Mr. Daniels consented,

you are referring to the notice in the consent form?

THE COURT: I’m referring to all the facts and circum-

stances that are present in the record in this case.

MR. ROLLER: Your Honor, there was an additional

matter raised in the motion having to do with our request

for an evidentiary hearing under Franks v. Delaware based

upon material misrepresentations and omissions, and, in

particular, your Honor, the fact that omitted from the af-

fidavit—and this relates to what you have already spoken

to—but omitted from the affidavit was any reference to

the continued monitoring of Mr. Daniels’ conversations by

the MCC and receipt of those, although, according to the

unsworn information provided to us so far, they were not

reviewed. Nevertheless, there were an additional 11 re-

cordings up until two weeks prior to the application.

THE COURT: Right, I understand, but the ruling that -

I have made today deals with consent. That’s the thrust of

my ruling, that Mr. Daniels consented to the tape [37] re-

cording.

MR. ROLLER: Well, maybe I misunderstood your

Honor. Are you prepared at this point in time to grant

App. 79

the defendants an evidentiary hearing on any aspect of

the motion to suppress electronic surveillance?

THE COURT: It is not necessary because the informa-

tion that has been presented to me, there’s been no denial

that Mr. Daniels signed the statement that Mr. King re-

ferred to. There is no denial that the other circumstances

upon which the Government has premised its position that

Mr. Daniels consented in fact did not occur.

MR. KING: Your Honor, if I can briefly respond to

that, we got the Government’s response—

THE COURT: Yes?

MR. KING: —and we have not yet had an opportunity

to reply, and the Government’s response, if you look at

the affidavit submitted in support of their response by

I believe Lt. Reed, one of the paragraphs makes clear

that all inmates, when they check into the institution, are

required to sign the consent form. That’s not a knowing

consent form in any meaningful sense.

THE COURT: I considered that.

MR. KING: Well, but, that issue has not been articu-

lated before you because the Government only argued that

in its reply. If you considered that and you base your—

[38] THE COURT: I considered that.

MR. KING: If I may finish?

If you considered the consent as knowing and voluntary,

and you are denying a hearing on that, fine, I just want

the record to be clear on that. A required executed con-

sent form is not a knowing consent form, and to the ex-

tent that there is any consent, it is a limited consent to

the institutional—security of the institution. It has got

nothing to do with an ongoing investigation by the MCC

and FBI officials, but if your Honor has considered that

and rejected it, then the record is clear, and that’s all

we—

App. 80

MR. ROLLER: The only other matter I wanted to

make on the consent issue, your Honor, is that I was plan-

ning, quite frankly, to address the Government’s response,

which I was not able to get until 4:30 on Friday, to our

motion—

THE COURT: I didn’t get it until that time on Friday,

too, so—

MR. ROLLER: Fine. I was going to address that initial-

ly verbally and then with a written response.

The only thing I wish to point out to the Court in con-

nection with the consent is that the Government did not

address, distinguish, or in any other way come up with

any cases contrary to United States v. Dalia, the principal

case relied upon by the defendants that clearly [39] stated

that these circumstances, in a federal correctional institu-

tion, assuming signature by an inmate, assuming the exact

same notices, that it was not consent, and the Govern-

ment did not provide—did not even mention Dalia in their

reply.

But what I was referring to a few moments ago, your

Honor, was that if, in fact, the Court has found that there

was consent and therefore the interceptions were lawful,

there is the issue that we raised in our motion that there-

fore, if you were to find that they were lawful, that the

omissions of the continued interceptions by the MCC, and

the Government having those, were material, clearly in-

tentional, omissions from the affidavit, that entitles us,

under Franks v. Delaware, to inquire further into it.

So we are beyond the consent. We are at the Franks

v. Delaware issue having to do—I mean there’s no ques-

tion, Judge. The Government said we didn’t present any

affidavits. We didn’t have to. We presented their own dis-

covery material indicating that they had received these

tapes through August 9th, that they-had not reviewed

App. 81

them, and that they hadn’t even bothered telling Judge

Grady that they had those.

If, in fact, the conversations were lawful, one of the

things that Judge Grady was obligated by the statute to

do was to make a determination of whether or not there

[40] was a need for the electronic surveillance. He couldn’t

possibly have done that without knowing to what extent

the Government was continuing to wiretap or continuing

to monitor and record those conversations and what Daniels

was saying on those conversations.

So, therefore, even though your Honor has found that

he consented, I submit to the Court that we are still en-

titled to an evidentiary hearing on that issue.

Thank you.

THE COURT: All right, is there anything further?

MR. KING: I think the record is clear, but in case there

is any doubt in anybody’s mind, Mr. Daniels affirmative-

ly asserts that he did not knowingly consent.

THE COURT: Well, I didn’t see an affidavit to that—

MR. KING: We’ll be happy to supply one. And the

Court said the Court doesn’t need a hearing.

THE COURT: I have already ruled on the basis of the

materials that were submitted to me—

MR. KING: I understand, your Honor.

THE COURT: —in determining whether—

MR. ROLLER: We did specifically say that—I’m sorry—

we did specifically say he did not consent.

THE COURT: I understand your legal position that he

did not consent, but I did not see a factual affidavit to

that effect.

* * * K *

(Certificate of the Official Court

Reporter omitted in printing]