Petition for Writ of Certiorari — DiDomenico v. United States

Supreme

FILED

96 288 AUG 2 119%

No. xe OF (HE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

ROCCO ERNEST INFELISE,

SALVATORE DeLAURENTIS, ROBERT BELLAVIA,

WILLIAM D. DiDOMENICO, HARRY ALEMAN

and JAMES A. NICHOLAS,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

ALLAN A. ACKERMAN, Esq.

2000 N. Clifton Avenue

Chicago, Illinois 60614

(312) 382-2891

Counsel of Record

for Petitioners

Of Counsel:

PATRICK A. TUITE, Esq.

ARNSTEIN & LEHR

120 S. Riverside Plaza

Chicago, Illinois 60606

(312) 876-7877

Midwest Law Printing Co., Chicago 60610, ($12) 321-0220

i

QUESTIONS PRESENTED

1. Whether compelling Sixth Amendment interests re-

quire resolution of the circuit-splitting questions of when,

and under what circumstances, defendants are entitled

to an evidentiary hearing after they have circumstantial-

ly demonstrated an intentional governmental intrusion

into the protected attorney-client relationship?

(a) Whether this Court’s precedent requires that

petitioners demonstrate prejudice resulting from inten-

tional governmental intrusion into the attorney-client

relationship in order to warrant an evidentiary hearing?

2. Whether the Sixth Amendment’s mandate requiring

verdict unanimity compelled the trial court to conduct

plenary post-verdict inquiries after the jury foreperson

reported a significant verdict recordation mistake?

ii

PARTIES TO THE PROCEEDINGS

Petitioners Rocco E. Infelise, Salvatore DeLaurentis,

Robert Bellavia, William DiDomenico, Harry Aleman,

and James A. Nicholas were co-indictees in United States

vu. Infelise, et al., 90 CR 87. Each petitioner was an appel-

lant in United States v. DiDomenico, et al., 93-1134, 78

F.3d 294 (7th Cir. 1996).

Petitioners Infelise and Bellavia seek leave to adopt

the sentencing issues, arguments and authorities pre-

sented in the separate petition for writ of certiorari filed,

or to be filed, by Louis Marino. Louis Marino was a co-

defendant and appellant in United States v. DiDomenico,

et al., ante.

The United States was the only plaintiff-appellee in

these proceedings.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ............-++++- i

PARTIES TO THE PROCEEDINGS ......... ii

TABLE OF CONTENTS ..........cceeccecees iii

TABLE OF AUTHORITIES .............+.-: iv-vi

OPINIONS BELOW ......ccccvcccccccccccens

Pits 2°) ty +) Ge ei 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .............-4055:

ed i Serre rr res cee

REASONS FOR GRANTING THE WRIT .... 12

EMARIREEIIES. Gecoctactuusecetcvessssesveces 30

on re en ree ence se se infra

iv

TABLE OF AUTHORITIES

Cases PaGE(s)

Alderman, et al. v. United States, 394 U.S. 165,

ete ee 0 Re 22, 23, 24

Andres v. United States, 333 U.S. 740, 68 S.Ct. 880

SE ick crn < Ubea ald aeeen de ceemiaesess 25

Black v. United States, 385 U.S. 26, 87 S.Ct. 190

SE ccukhawitielsdtawiks cans Dene 15, 17, 18

Briggs v. Goodwin, 698 F.2d 486 (DC Cir. 1982);

on rehearing, 712 F.2d 1444 (DC Cir. 1993),

cert. denied, 464 U.S. 1040 (1984) .......... 14

Coplon v. United States, 191 F.2d 749 (D.C. Cir.

PROD ncnedt cine & KARR K aa heeene beaneee ee 14, 15

Cutillo v. Cinelli, 485 U.S. 1037, 108 S.Ct. 1600

OE kn ac ak bcs ashe caveacsek ke toe ae 13

Fox v. United States, 417 F.2d 84 (5th Cir. 1969) . 26

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457

POD ck sh adsdnecadie gen ceeienkeennd ted 14

EE RR i hes SRR EGS cae Ss

Keeney v. Tam — 504 U.S. 1, 112 S.Ct.

RUDD CHM ies nda 5 wee ess eukeakaoeehuess

Kolod v. United States, 390 U.S. 136, 88 S.Ct. 752

LEPUEE bas des eran ences esbencbecadbenaensen 18

Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477

CRUE Wkain Wc Ga uccue dened bekaaw Deke eeKdes’S 12, 13

McCullough v. Conrail, 937 F.2d 1167 (6th Cir.

REE even 0b.ds Ob dss doe keke ee ee eeke eee as 26

Murphy v. Waterfront Com’n of New York Harbor,

378 U.S. 52, 84 S.Ct. 1594 (1964) .......... 16, 17

Vv

O’Brien et al. v. United States, 386 U.S. 345, 87

Se SOR FOES. ckiengbabess es cecekers 15, 17, 18

Ornelas v. United States, __. U.S. ___., 116 S.Ct.

SE CAO nie io0 sve wives ce ewereeaseeeens 24

Shillinger v. Haworth, 70 F.3d 1132 (10th Cir.

EE 2. cand addiuddacd ekabaceses vag cep ees 13, 14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

EE CED oi ov hos ca ebh ere nsdeheedvavint << 12

Townsend v. Sain, 372 U.S. 298, 83 S.Ct. 745

CEs i abeckinn bias en oie evenens een eee ce 24

United States v. Armstrong, ___. U.S. __., 116

Ec Se LRP een coos ced evesgcecseees 23

United States v. Boyd, 833 F.Supp. 1277 (N.D. IL,

RARE SPREE: Ss acer ape er ere een ee ee 20

United States v. Boyd, 55 F.3d 239 (7th Cir. 1995) . 21

United States v. Burnside, 824 F.Supp. 1215 (N.D.

Bin, TOUR ic cic c ce eevitieeceesececsndeees’ 21

United States v. Coplon, 185 F.2d 629 (2nd Cir.

i err rere re eee te ye 16, 21, 22, 24

United States v. Costanzo, 740 F.2d 251 (8rd Cir.

1984), cert. denied, 472 U.S. 1017 (1985) .... 14

United States v. Davis, 646 F.2d 1298 (8th Cir.

WOGD) nv ccvevcccccsnsecensvecdsivess tedacdees 15

United States v. Dotson, 817 F.2d 1127 (5th Cir.

TOD Sis cink 3 ee 0 hn 0 eo ek Chea ba eRe 26

United States v. Glover, 596 F.2d 857 (9th Cir.

1979), cert. denied, 444 U.S. 857 (1979) ..... 15

United States v. Goldstein, 120 F.2d 485 (2nd Cir.

WEDD vv ncccce vcevevccnspegheewnsterdnews 16

United States v. Infelise, et al., 934 F.2d 103 (7th

Cir. 1991) 3

vi

United States v. Infelise, et al., 78 F.3d 294 (7th

CO, SGN Shave dckbnanedsncdansdeeecues 2

United States v. Kelly, 790 F.2d 130 (DC Cir.

OEE SRP Gre nrmer ony wim Da gE AE iL 16

United States v. Levy, 577 F.2d 200 (8rd Cir.

RR Be lary eer eat ign RS ae RS 14

United States v. Marinari, 32 F.3d 1209 (7th Cir.

BOOED ck cccandonvanscedscsacsdessicst ees 29

United States v. Mastroianni, 749 F.2d 900 (1st

COP, SO sv cdvanduthecrenstestheeicarcGa 15

United States v. Morales, 635 F.2d 177 (2nd Cir

FOOD cicncttcecas cncdecacen venue cen 14

United States v. Morris, 612 F.2d 483 (10th Cir

BIPTUD . 0n:4. 6.0.09. kcbd dire dd cheek Rie ea Ea uke 27

United States v. Morrison, 449 U.S. 361 (1981) .. 18

United States v. Stauffer, 922 F.2d 508 (9th Cir.

BOOP snnccccpagncssdsdnu inks ab echene SOROS 26

United States v. Steele, 727 F.2d 580 (6th Cir.

1984), cert. denied, 467 U.S. 1209 (1984).... 15

Young v. United States, 163 F.2d 187 (10th Cir.),

cert. denied, 382 U.S. 770 (1947) ........... 26

Constitution, Statutes and Rules

United States Constitution, Fifth Amendment ..... 2

United States Constitution, Sixth Amendment ..... $, 12

1B UR CPE 4 3 k's waka ROR RLREDR RA FAD 23

SD Cre ER la hea lu censcccuheseaces cleus 23

Se Cid. ED: kw'cip vb g 3 ahd ob cdcde arene 2

SB UG, Cie sb veka ide cei HP 2

23

Fed.R.Crim.Proc., 16(aX1XC) ............0ceees

In THE

Supreme Court of the United States

OcTOBER TERM, 1996

ROCCO ERNEST INFELISE, et al.,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

‘aes Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners Rocco E. Infelise, Salvatore DeLaurentis,

Robert Bellavia, William DiDomenico, Harry Aleman,

and James A. Nicholas pray that a writ of certiorari

issue to review the decision and judgment of the United

States Court of Appeals for the Seventh Circuit entered

in this case.

OPINIONS BELOW

The March 1, 1996 opinion and judgment of the United

States Court of Appeals for the Seventh Circuit affirming

the convictions and sentences under Indictment 90 CR

2

87 are reported at 78 F.3d 294 (7th Cir. 1996). The Sev-

enth Circuit opinion and judgment is reproduced at

pages la to 18a of the appendix to this petition.

Petitioners Infelise and Bellavia seek leave to incorpo-

rate and adopt the sentencing issues, arguments and

authorities presented in the separate petition for writ of

certiorari filed, or to be filed, by Louis Marino. Louis

Marino was a co-defendant and appellant in the consoli-

dated appeal below, United States v. DiDomenico, et al.,

ante.

JURISDICTION

The jurisdiction of the district court was based on 18

U.S.C. § 3231. The United States Court of Appeals for

the Seventh Circuit, with jurisdiction pursuant to 28

U.S.C. § 1291, issued its decision on March 1, 1996. A

timely petition for rehearing, with en banc suggestions,

was denied on May 23, 1996. The order denying rehear-

ing is reproduced at 19a of the appendix to this petition.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion, in part, states:

No person shall be . . . deprived of life, liberty, or

property, without due process of law.

The Sixth Amendment to the United States Constitu-

tion, in part, states:

3

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury, ... the accused shall . . . have the Assistance of

Counsel for his defense.

STATEMENT

On February 6, 1990, the Special September 1987

Grand Jury empaneled in Chicago returned a multi-

count criminal indictment against twenty defendants.

Petitioners Infelise, DeLaurentis, Bellavia, and Aleman

were named in count one, the RICO conspiracy count,

which charged they were part of an organized crime

enterprise involved in illegal activities from the early

1970s to the date of indictment return.

1. During February and March 1990, a series of pre-

trial release hearings culminated with the petitioners re-

maining in detention. In response to an appellate chal-

lenge, the Seventh Circuit directed the trial court to

reconsider pretrial detentions.’

2. During the pretrial discovery phase, the govern-

ment made available approximately 5,000 tape record-

ings involving the petitioners and others; the recordings

were made between 1983 and 1989. To facilitate pretrial

preparation for the pretrial detainees, the district court

ordered that a secure roorn on the nineteenth floor in the

federal Metropolitan Correctional Center (MCC), Chica-

go, Illinois, be set aside for the exclusive use of petition-

1 United States v. Infelise, et al., 934 F.2d 103 (7th Cir. 1991)

(on remand the trial court perpetuated pretrial deteinment).

4

ers and defense counsel. The district court directed the

government to install listening equipment so that the

tapes (and transcripts) could be analyzed, compared and

indexed. The government-supplied equipment lacked re-

cording capacity.

At least twice weekly from the late spring of 1990

through late August 1991, petitioners and counsel met in

the secured MCC room to prepare for trial, always amid

assurances from the United States Attorney that there

were no eavesdropping devices in the room.’ During

these bi-weekly meetings defense stratagem was re-

viewed and refined. Attorneys for the non-custodial

defendants sometimes joined in as a means of facilitating

joint defense pretrial motions and trial preparation.

3. The discovered intrusion and subsequent events.

During late August 1991, cassette tape recordings were

delivered by unknown persons to three separate defense

attorneys. The cassette recordings captured custodial

conversations involving the petitioners and defense at-

torneys. Beyond peradventure, the taped conversations

emanated from the custodial room set aside for attorney-

client trial preparation. The defense attorneys immedi-

ately notified the Chief Judges of the Seventh Circuit

* Consolidated pretrial defense motions requested written

assurances from the government that the preparatory trial

area was not the subject of government eavesdropping. In

part, the government’s written response included “there is no

audio or video monitoring system or device in this room. Coun-

sels’ = whether real or dramatic, is wholly unwarrant-

ed”; R.792, pg. 2, n. 3.

5

and United States District Court in Chicago.* At the

direction of [then] Chief Judge Bauer of the Seventh Cir-

cuit, the tapes were delivered to the United States Attor-

ney for the Northern District of Illinois.

(a) On September 5, 1991, petitioners filed a writ-

ten motion to continue the September 17, 1991 trial date.

The trial prep room had already been sealed by the De-

partment of Justice (DOJ). The Office of Professional Re-

sponsibility (OPR) sent two special agents to participate

in the investigation. While eschewing pretrial release

and waiving any right to a speedy trial, petitioners in-

sisted that they were entitled to a complete investigation

to determine the number and nature of electronic in-

trusions (Tr. of 9/5/91 at pp. 5, 9-19). The trial court held

that, lacking allegations that the prosecution obtained or

used any information that may have been gleaned from

the cassette tapes, there was no need to adjourn the trial

setting. Jd. at 22-23. Nonetheless, the trial court contin-

ued the trial setting from September 17 to October 1,

1991. Id. at 24.

(b) On September 12, 1991, petitioners and all

counsel appeared before the trial court. The trial court

was advised that the DOJ investigation would take be-

tween thirty and forty-five days (Tr. of 9/12/91 at p. 6).

The trial court learned that four tapes had been deliv-

* The district court correctly noted that after the defense

attorneys received copies of the tape, they immediately noti-

fied the chief judges as well as the United States Attorney in

Chicago (R. 839, p. 1; App. 20a-21a). The affirming opinion er-

roneously asserts that a single defense attorney received a

single tape and that that tape was tendered to the United

States Attorney (App. 3a).

6

ered to three defense attorneys. Jd. The government took

the position that the petitioners had failed to assert that

the prosecutors and agents responsible for the prosecu-

tion had been responsible for the taping. Jd. at 10. Ac-

cording to the government, the cassette recordings could

have been made by the defense. Jd. The trial court took

the position that prosecutorial team “taint” was the only

impacting issue: Was taped information passed to the

government trial team? Jd. at 11-12; 18, 29-30, 34-36.

Agreeing that a DOJ investigation would take thirty to

forty-five days, and finding a paramount need to retain

the October lst trial date, the trial court ordered that

the petitioners be transported each morning to defense

attorney offices for trial preparation, then returned to

the MCC each afternoon. Jd. at 12; R. 809. The court’s

comments included:

... If we’re done with the trial of the case and some

of these defendants are convicted and that’s when the

investigation is over, I will take a motion for NOV to

set aside the judgment and I will set it aside.

Tr. 9/12/91 at p. 13. (Pet’s Emph.)

And I recognize that this is a burden on the govern-

ment, but this tape was made in a government facil-

ity, at the MCC.

Tr. 9/12/91 at p. 15. (Pet’s Emph.)

(c) On September 17, 1991, the trial court, while re-

affirming the October 1, 1991 trial date, was advised

that the United States Attorney for the Northern District

of [llinois would no longer be participating in the eaves-

dropping investigation; Washington OPR was taking over

(Tr. of 9/17/91 at pp. 2, 5).

7

(d) On September 20, 1991, petitioners were be-

fore the court. The trial court agreed to hold a hearing

“ _. whenever ihe investigations are done ...” (Tr.

9/20/91 at p. 35; Pet.’s emph.). An affiant-expert filed a

report and affidavit on September 20, 1991 (R. 822; App.

34a-48a). The affidavit and report, from a former chief

investigator for the government, preliminarily found the

taping to have all the earmarks of a professionally

trained eavesdropper.*

Government trial counsel urged trial date retention

and asserted that the only hearing needed was to deter-

mine whether the government profited from the tapes—

leaving to another day the matters of (1) who did the

taping and (2) whether the defense could show prejudice

(R. 770, Tr. 3-4). According to the government, the de-

fense had the burden of demonstrating intentional intru-

sion-plus-prejudice. Jd. at 18-19. The trial court adopted

that position. Jd. at 20. The DOJ/OPR attorneys from

Washington, DC advised the court that their goal was to

complete the government's investigation before November

1, 1991. Id. at 30. The trial court stated that at whatever

‘ The affiant, Barry Cauley, had been a chief law enforcement

investigator for the government prior to opening an electronic

surveillance company in Dallas, Texas. He had nineteen years

of law enforcement experience in the area of electronic sur-

veillance. Inter alia, his preliminary report surmised that at

least two systems were installed for the surreptitious record-

ing and noted that it was normal practice for trained law en-

forcement eavesdroppers to use two systems, one acting as a

backup (R. 822 at 4 16(a); App. 35a-36a).

The public record in this case fails to include any contrary

affidavit or information from the government.

8

point the defense wahted a “full blown” hearing, govern-

ment (no-taint) affidavits could be challenged. Jd. at 39.°

Petitioners protested that the trial court was rushing

to judgment on a critical issue. Petitioners had been the

subject of investigation for six or more years prior to in-

dictment, yet the defense was given but two weeks to

meet a single critical issue (Tr. 42). Finally, the trial

court ruled that even if the taping occurred at the MCC,

unless it could be pinned on individuals tied to the case

who used or obtained the information, it was unimpor-

tant (Tr. 45).

(e) On September 25, 1991, the trial court filed a

memorandum order denying petitioners’ request to con-

tinue the trial date (R. 839; App. 20a-33a). While noting

a split-in-circuits on the issue of prosecutorial intrusion,

the trial court nonetheless ruled that the intrusion

needed a direct nexus to the prosecutorial team. Jd.

Since the petitioners were not able to supply that link-

age, no further inquiry was needed (App. 30a-33a). The

trial court’s reasoning included:

Although the court has not heard the tape, for pur-

poses of this motion, the court will deem counsels’ re-

presentations sufficient to establish that the conver-

sation was taped in the 19th floor conference room.

However, even if the taping did occur at the MCC,

that does not prove that the anyone ‘rom the prose-

cution team taped the defendants. Jn other words,

even if someone employed by the government did tape

the defendants, it is not relevant to the instant case

unless the government employee is an attorney or

° The government filed approximately forty affidavits. Each

renounced any knowledge of any MCC eavesdropping.

9

agent assigned to his case or unless the contents of the

tapes were communicated to an attorney or agent

assigned to this case. (App. 30a; italicized emphasis

added)

The trial court declined to resolve the question of

whether the OPR report (due November 1) would be

made available to the defense in support of its intention-

al governmental intrusion stance (Tr. 15).

4. Trial.

On October 15, 1991, the MCC bugging issue unre-

solved, an anonymous jury was empaneled. The RICO

conspiracy count included allegations that the petitioners

conspired to commit two separate homicides. The indict-

ment included substantive counts tracking those homi-

cides. On March 10, 1992, the jury returned mixed homi-

cidal verdicts against Infelise, DeLaurentis, Marino, and

Bellavia.’

® Petitioners DiDomenico and Nicholas were non-RICO co-

indictees charged with bookmaking. Originally released pend-

ing trial, their post-release conduct culminated in release revo-

cation and remandment. As custodial pretrial detainees, they

were directly exposed to the eavesdropping which is presented

as an issue for review. DiDomenico, Nicholas and Aleman en-

tered conditional guilty pleas, reserving the right to perpetu-

ate their intrusional challenges.

7 The RICO conspiracy count included predicate conspiratorial

acts charging petitioner Infelise with conspiring to kill Robert

Plummer (Pred.Act 8). Each petitioner was charged with con-

spiring to murder Hal Smith (Pred.Acts 17(a) and (b)). Iden-

tical substantive counts 8 and 9 charged the petitioners with

conspiring to murder Hal Smith (tracking Pred.Acts 17(a), (b)).

Infelise was uitted of the Robert Plummer murder

(Pred.Act 8) and found guilty of only one of the Smith homi-

(continued...)

10

5. Post-Trial.

(a) On March 13, 1992, the Chicago ABC television

outlet aired an interview with an anonymous juror who

stated that the jury had not convicted DeLaurentis of

any homicide charge. During the week of March 16,

1992, the trial court recalled and questioned the anony-

mous jurors in the presence of counsel. On March 17, the

foreperson of the jury (anonymous Juror #54) reported

that the “check mark” showing that DeLaurentis had

been convicted in the Hal Smith homicide was a mistake

(Tr. of 3/17/92 at pp. 106-107). After the foreperson left

the trial court’s chambers (but remained immediately

available), defense attorneys requested that the trial

court ask the foreperson if she “could .. . have made a

mistake elsewhere in the verdict forms.” (Jd. at p. 110).

Upon government objection, the trial judge refused to ask

the question. Jd. at pp. 111-114.

On December 30, 1992, the trial court filed a memoran-

dum order vacating the count eight conviction for peti-

tioner DeLaurentis vis-a-vis the Hal Smith homicide (R.

1629, pp. 37-39). The same memorandum opinion noted

” (...continued)

cide conspiratorial predicate acts (17(a)). The jury returned no

verdicts on either Pred.Acts 17(b) or the identical substantive

counts charging the same conspiratorial offenses. The jury

exonerated DeLaurentis of conspiring to murder Hal Smith

(P.A.’s 17(a) and (b)), but found him guilty of count 8 charging

the same offense. The jury returned no verdicts against

Marino on the conspiratorial predicate acts or the tracking

substantive Hal Smith homicide counts (8 and 9). The jury

returned a guilty verdict against Bellavia on Hal Smith P.A.

17(a), but no verdicts on P.A. 17(b) or the tracking substantive

counts (8 and 9).

11

that the reason the trial court refused to inquire as to

other verdict errors was that there was no indication that

there were any other errors (R. 1629 at p. 38; Pet.’s

emph.). In a subsequent memorandum order dated

March 19, 1993, the trial court agreed that no questions

were posed to the foreperson or any other juror regarding

any other count (or defendant; R. 1331, p. 4, n. 3).

(b) The DOJ Report. During trial in February 1992,

the trial judge advised petitioners that the DOJ/OPR in-

vestigation (originally promised for completion by

November 1991) was still ongoing (R. 1236). Finally, in

September 1992, the trial court filed an order noting that

the DOJ Report would be filed under seal by September

11, 1992. Thereafter, the trial court would determine dis-

closure vel non (R. 1461).

On September 24, 1992 the trial court, again noting a

split in circuits, filed a memorandum order denying an

evidentiary hearing (R. 1482 at pp. 2-3; App. 50a-51a).

Petitioners, the trial court reasoned, had not shown

illegal taping involvement by the prosecutorial team and

thus the government had no burden of explanation. Id.

at pp. 5-6. That memorandum order noted that the OPR/

DOJ investigation was still incomplete and inconclusive.

Id. at 8. The trial court ruled that after the final report

was received, the defendants could refile a motion for in-

dictment dismissal. Jd. at 8, n. 9.

The OPR final report was ultimately filed with the

trial court on February 23, 1994. According to the trial

court, the final report was “inconclusive” (R. 2009). De-

fense importunings for disclosure were denied and no

hearing was ever held (R. 1856, 1862, 2029, 2032; App.

58a-59a).

12

6. Sentencing. Petitioners Infelise and Bellavia adopt

and join in the petition for writ of certiorari filed, or to

be filed, by co-indictee Louis Marino. Marino, Infelise

and Bellavia are serving lengthy consecutive sentences.

Petitioners Infelise and Bellavia raise the identical ques-

tions regarding the constitutionality of the consecutive

sentences imposed by the same trial judge in the same

case. Infelise and Bellavia’s sentencing arguments would

duplicate those to be presented by Marino. Thus, Infelise

and Bellavia request permission to adopt Marino’s sen-

tencing argument as their sentencing arguments.

REASONS FOR GRANTING THE WRIT

The multiple issues present vexing questions impacting

on Sixth Amendment jurisprudence.

1. (a) The Sixth Amendment. Petitioners have a clear

Sixth Amendment guarantee to the effective assistance

of counsel. That constitutional pledge compels communi-

cation between counsel and defendant. In Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the

Court stated:

The reasonableness of counsel’s actions may be deter-

mined or substantially influenced by the defendant’s

own statements or actions. Counsel’s actions are

usually based, quite properly, on informed strategic

choices made by the defendant and on information

supplied by the defendant. In particular, what investi-

gation decisions are reasonable depends critically on

such information. (104 S.Ct. at 2066; italicized em-

phasis added).

In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477

(1985), the Court affirmed the granting of habeas relief

13

while reviewing an intentional post-indictment intrusion

into the attorney-client privilege. The Court noted:

Once the right to counsel has attached and been

asserted, the State must of course honor it. This

means more than simply that the State cannot pre-

vent the accused from obtaining the assistance of

counsel. The Sixth Amendment also imposes on the

State an affirmative obligation to respect and pre-

serve the accused’s choice to seek this assistance. We

have on several occasions been called upon to clarify

the scope of the State’s obligation in this regard, and

have made clear that, at the very least, the prosecutor

and police have an affirmative obligation not to act in

a manner that circumvents and thereby dilutes the

protection afforded by the right to counsel. (106 S.Ct.

at 484, 487; fn. 7 omitted; italicized emph. added)

The constitutional premise incorporates petitioners’

rights to be free from prosecutorial intrusion into attor-

ney-petitioner pretrial and trial preparation.

(b) Circuit discord and burden shifting.

The lack of circuit harmony is clear from Justice

White’s dissent from the denial of certiorari in Cutillo v.

Cinelli, 485 U.S. 1037, 108 S.Ct. 1600-01 (1988). Justice

White, joined by the Chief Justice and Justice O’Connor,

dissenting from the denial of certiorari in Cutillo, ad-

vanced the need for review and clarification of circuit

conflicts involving the Sixth Amendment and the ques-

tion as to who bears the burden of persuasion, viz., pre}-

udice, 108 S.Ct. at 1601.

The split circuit was recently reviewed by the Tenth

Circuit in Shillinger v. Haworth, 70 F.3d 1132, 1140-43

(10th Cir. 1995). In Shillinger, the court reviewed the

granting of § 2254 relief where a local sheriff remained

14

with Haworth and his counsel during pretrial prepara-

tion. The local sheriff communicated some of what he

heard to the local prosecutor, who subliminally utilized

that information during Haworth’s trial. The district

court granted § 2254 relief. On appeal by the warden,

the Tenth Circuit affirmed the granting of relief and re-

manded for a determination of what relief was appro-

priate (e.g., retrial or indictment dismissal). The Tenth

Circuit noted that the Third Circuit “. . . has adopted the

rule that intentional intrusions by the prosecution con-

stitute per se violations of the Sixth Amendment,” citing

United States v. Levy, 577 F.2d 200, 210 (8rd Cir. 1978)

and United States v. Costanzo, 740 F.2d 251, 254 (3rd

Cir. 1984), cert. denied, 472 U.S. 1017 (1985). The Tenth

Circuit opinion analyzed decisions from the Second and

District of Columbia circuits which held that “prejudice

may not be required when an intrusion is intentional,

but have not specifically decided,” citing Briggs v. Good-

win, 698 F.2d 486, 493, n. 22 (DC Cir. 1982); on rehear-

ing, 712 F.2d 1444 (DC Cir. 1993), cert. denied, 464 U.S.

1040 (1984) and United States v. Morales, 635 F.2d 177,

179 (2nd Cir. 1980). The First, Sixth and Ninth Circuits

® In Coplon v. United States, 191 F.2d 749 (DC Cir. 1951), a

divided panel vacated the denial of Rule 33 relief and remand-

ed for plenary evidentiary hearings. Post-trial, Ms. Coplon

alleged that she and her attorney had been the subject of tele-

phonic wiretapping, both prior to and during her trial. The re-

versing panel, while directing post-trial hearings, noted that

Sixth Amendment prejudice would be presumed, and a new

trial ordered in the event she was able to sustain her claim

that communications with her attorney had been the subject

of interception. The panel referred to the Court’s opinion in

Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457 (1942),

(continued...)

15

have held that something beyond intentional intrusion

itself is required to rise to the level of a Sixth Amend-

ment violation, citing United States v. Mastroianni, 749

F.2d 900, 907 (1st Cir. 1984); United States v. Steele, 727

F.2d 580, 586 (6th Cir. 1984), cert. denied, 467 U.S. 1209

(1984); United States v. Glover, 596 F.2d 857, 863-4 (9th

Cir. 1979), cert. denied, 444 U.S. 857 and 444 U.S. 860

(1979). The position of the Eighth Circuit was noted in

United States v. Davis, 646 F.2d 1298, 1303 (8th Cir.

1981). In Davis, the panel analyzed prejudice vel non,

stating:

It is certainly true that where there is gross miscon-

duct on the part of the government no prejudice need

be shown. See O’Brien v. United States, supra, 386

U.S. at 345, 87 S.Ct. at 1158; Black v. United States,

supra, 385 U.S. at 29, 87 S.Ct. at 192. (646 F.2d at

1303, n. 8)

In this case, the Seventh Circuit opinion noted that the

defense could have (1) argued that no showing of preju-

dice was required or (2) presented some evidence of prej-

udice (App. 9a). Though the defense did not do the latter,

it certainly did the former. On September 20, 1991, dur-

ing one of the several pretrial skirmishes on the MCC

bugging, one of the defense lawyers pointed out that if

intrusion is intentional (flagrant), taint need not be

shown (Tr. of 9/20/91 at pp. 14-16). Putting that remark

in context, petitioners were clearly arguing that the in-

8 (...continued)

for the proposition that the right to have “. . . the assistance

of counsel is too fundamental and absolute to allow courts to

indulge in nice calculations as to the amount of prejudice

arising from its denial . . . ,” 191 F.2d at 759-60.

16

tentional intrusion by the government into the attorney-

client relationship precluded a showing of prejudice—at

least for the purpose of conducting an evidentiary hear-

ing. Hence, the panel opinion is simply mistaken.

Petitioners’ case conflicts with the District of Columbia,

Third and Eighth Circuit positions, apparently falling

within the First, Sixth and Ninth Circuits (intentional

intrusion insufficient; App. 5a-9a).°

Apropos of the vexing burden of proof question, the

Court’s decision in Murphy v. Waterfront Com’n of New

York Harbor, 378 U.S. 52, 84 S.Ct. 1594 (1964), provides

insight. The Court wrote:

Second, there are no real proof problems in this situ-

ation. As in the analogous search and seizure and

wiretap cases—where the burden of proof is on the

Government once the defendant establishes the unlaw-

ful search or wiretap... .

378 U.S. at 103, 84 S.Ct. at 1616 (italicized emphasis

added; additional text omitted).'°

° In United States v. Kelly, 790 F.2d 130, 136-8 and n. 5 (DC

Cir. 1986), the court vacated the denial of Rule 33 relief and

remanded for further proceeding. The vacating panel included

{now] Justice Scalia. The panel noted the clear lack of circuit

symmetry surrounding the intentional-intrusion/Sixth Amend-

ment questions as presented in this petition.

'° In Murphy, Justice White cited to United States v. Coplon,

185 F.2d 629 (2nd Cir. 1950) and United States v. Goldstein,

120 F.2d 485, 488 (2nd Cir. 1941). In Goldstein, Circuit Judge

Learned Hand established that in the area of wiretapping the

Spt of persuasion should remain with the government, 120

F.2d at 488.

17

Prior to Murphy v. Waterfront Com’n of New York Har-

bor, ante, the Court vacated federal criminal convictions

where the government acknowledged intentional intru-

sions into the attorney-client relationship. As example,

in Black v. United States, 385 U.S. 26, 87 S.Ct. 190

(1966), the Court vacated the denial of certiorari and re-

manded Black’s case for a new trial. Black and his attor-

ney had been overheard by the government in an unre-

lated investigation. The solicitor general advised the

Court that nothing from that overhear related to Black’s

tax evasion case, and suggested that the conviction be

vacated and remanded to the district court for an evi-

dentiary hearing. The Court found otherwise:

In view of these facts it appears that justice requires

a new trial be held so as to afford the petitioner an

opportunity to protect himself from the use of evi-

dence that might be otherwise inadmissible.

87 S.Ct. at 191-2."

In O’Brien et al. v. United States, 386 U.S. 345, 87

S.Ct. 1158 (1967), the Court granted O’Brien a new trial

predicated on Black.” Again, Justices Harlan and

Stewart dissented. Justice Harlan opposed the granting

of a new trial while noting that none of the contents of

the eavesdropping or wiretap were communicated to the

attorneys for the Department of Justice, “. . . including

Justice Harlan’s dissent suggested that remandment for an

evidentiary hearing, and not the granting of a new trial, was

the correct disposition, 87 S.Ct. at 192-3.

12 Justice Harlan’s dissent noted that none of the eavesdrop-

ping content was communicated to the government’s prosecut-

ing attorneys. Hence, a new trial was not required, 87 S.Ct. at

1158.

18

those who prosecuted this case . . .,” 87 S.Ct. at 1158, em-

phasis added.'**™*

In United States v. Morrison, 449 U.S. 361 (1981), the

Court vacated the Sixth Circuit’s indictment dismissal

order, finding that the appellate remedy for a Sixth

Amendment violation was indecorous under the circum-

stances. Justice White, for a unanimous Court, wrote:

In Black v. United States, 385 U.S. 26, 87 S.Ct. 190,

17 L.Ed.2d 26 (1966), and O’Brien v. United States,

386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967),

law enforcement officers improperly overheard pre-

trial conversations between a defendant and his

lawyer. None of these deprivations, however, resulted

in the dismissal of the indictment. Rather, the con-

viction in each case was reversed and the Govern-

ment was free to proceed with a new trial.

101 S.Ct. at 668 (emphasis added).

'S The government did not oppose remandment for an evi-

dentiary hearing. Nonetheless, the Court ordered that O’Brien

be tried anew.

“* In Kolod v. United States, 390 U.S. 136, 88 S.Ct. 752 (1968),

the Court found that conviction vacation and remand for an

evidentiary hearing were required under circumstances where

the government, sub silentio, acknowledged having eaves-

dropped on one of the petitioners. The government asserted

that the information obtained was not arguably relevant to the

prosecution, 88 S.Ct. at 753. The Court found the govern-

ment’s ex parte relevancy determination unavailing and re-

manded for an adversary hearing. In the ensemble, Black,

O’Brien and Kolod direct that either a new trial or an eviden-

tiary hearing be granted the petitioners.

‘® The panel cites Morrison, but fails to underscore its impact

in the case at hand (App. 6a).

19

Recall that the petitioners are seeking an evidentiary

hearing, not indictment dismissal. Morrison tells us that

indictment dismissal may be inappropriate. Yet, the af-

firming panel disregards the teachings of Black, O’Brien

and Morrison.

(c) Precedent clearly reveals the error in failing to

disclose to the petitioners the DOJ/OPR investigative re-

port; in camera review cannot substitute for disclosure.

On September 12, 1991, finding that the cassette tapes

were made at the MCC, the trial court ordered tempo-

rary release for continued trial preparation (Tr. 9/12/91

at p. 15). On September 25, while denying an evidentiary

hearing, the trial court again found that the tapes be-

tween petitioners and counsel emanated from the MCC

(R. 839, p. 11). An eavesdropping expert reported that

the taping was an inside job (App. 35a-45a). The Hon.

Royce C. Lamberth, of the United States District Court

for the District of Columbia, in a pending FOIA proceed-

ing involving the DOJ/OPR “inconclusive” investigative

report, found by clear circumstantial evidence that the

government had impermissibly eavesdropped on the peti-

tioners and their attorneys.”

‘6 The United States Court of Appeals for the District of Col-

umbia has scheduled oral argument in Tuite, et al. v. Henry,

qua non of this issue. In Tuite, the district court found sub-

stantial circumstantial evidence indicating that the govern-

ment had intentionally intruded on petitioners and their attor-

neys during the pretrial preparation at the federal MCC dur-

(continued...)

20

Notwithstanding antecedent factual findings (the tap-

ings occurred between petitioners and counsel at the

MCC) and a separate district court finding that the peti-

tioners have demonstrated by clear circumstantial evi-

dence that the taping was done by the government, the

panel opined that perhaps the petitioners bore taping re-

sponsibility (App. 4a). The panel opinion adroitly shifted

the focus from the government to the petitioners and

away from the core issue. Musings such as: was it a visi-

tor? was it a bribed federal employee? was it a member

of the defense bar? was it a little yellow dog? have no

foundation in record reality. The record is barren of any

evidence, from any source whatsoever, that an MCC visi-

tor, or a bribed federal employee, or even a member of

the defense bar was capable of smuggling into and out of

a level VI federal prison (highest security) a functioning

tape recorder and tapes."

‘6 (...continued)

ing 1990 and 1991. The district court, nonetheless, declined to

make the OPR investigative report available to the plaintiffs

in the concomitant civil action. The appellate proceedings

question whether the district court erred in refusing te make

the OPR report available for utilization in ongoing civil pro-

ceedings.

' The record below reveals that all Chicago-MCC visitors (in-

cluding lawyers) are subjected to a plenary search. Any brief-

case is x-rayed. Recording equipment is prohibited. All visitors

pass through an enhancing magnetometer. Male visitors are

required to remove trouser belts. It is virtually impossibie for

any visitor to smuggle anything into the Chicago-MCC.

The panel opinion, absent a scintilla of evidence, implies

that the defense attorneys may have been responsible for the

chicanery. In that regard, the panel opinion refers to United

States v. Boyd, 55 F.3d 239 (7th Cir. 1995), as emblematic of

(continued...)

21

Faced with conflicting fact questions and an “inconclu-

sive” DOJ/OPR investigative report, the panel chose to

affirm the district court’s declination to disclose the DOJ/

OPR report and conduct an evidentiary hearing.

A parallel case is United States v. Coplon, 185 F.2d 629

(2nd Cir. 1950). In Coplon, Circuit Judge Learned Hand

authored a classic opinion reversing Ms. Coplon’s espio-

nage conviction following a jury trial. Prior to and during

the trial proceedings, counsel for Coplon demanded an

opportunity to inspect materials developed based on

wiretaps between, inter alia, Coplon and her counsel. On

appeal, Coplon asserted that her conviction was tainted

because she was deprived of an opportunity to inspect

some of the wiretapping materials which had been the

subject of in camera disclosure to the trial judge. Circuit

Judge L. Hand, for the reversing panel, wrote:

However, the refusal to allow the defence to see them

was, as we have said, a denial of their constitutional

right, and we can see no significant distinction be-

tween introducing evidence against an accused which

he is not allowed to see, and denying him the right to

‘7 (continued)

the lack of security at the MCC during 1991. Chief Judge

Posner, writing for the panel, neglects to tell the motivated

reader that Boyd, along with United States v. Burnside, 824

F.Supp. 1215 (N.D. IL, 1993) and United States v. Boyd, 833

F.Supp. 1277 (N.D. IL, 1993), were decisions reviewing secur-

ity lapses at the same Chicago-MCC where government in-

formants (only) were allowed coreeeesy pave in ex-

change for prosecutorial testimony. In United States v. Boyd,

833 F.Supp. at 1357 the relationship between the MCC and

the U.S. Attorney’s Office in Chicago was described as “in-

cestuous.” In this case, the record is void of any evidence even

hinting at evidence of defense attorney chicanery.

22

put in evidence on his own behalf. In the case at bar

it may seem to have been a flimsy grievance to deny to

Judith Coplon the opportunity to argue that these

records did “lead,” or might have “led,” to her convic-

tion; in truth it is extremely unlikely that she suffered

the slightest handicap from the judge’s refusal. But

we cannot dispense with constitutional privileges be-

cause in a specific instance they may not in fact serve

to protect any valid interest of their possessor. Back of

this particular privilege lies a long chapter in the his-

tory of Anglo-American institutions. Few weapons in

the arsenal of freedom are more useful than the power

to compel a government to disclose the evidence on

which it seeks to forfeit the liberty of its citizens. (185

F.2d 629, 638; emphasis added.)

In Alderman, et al. v. United States, 394 U.S. 165, 89

S.Ct. 961 (1969), the Court vacated and remanded multi-

ple conspiracy convictions where the primary question

was whether wiretapping disclosures would be made to

the defense. Disclosure had been denied below. Before

the Court, the government conceded and agreed that for

hearing purposes certain transcripts and recordings must

be disclosed, 89 S.Ct. at 970. The Court was called upon

to determine whether in camera review would suffice in

connection with some of the materials which the govern-

ment claimed was not subject to disclosure. The Court

found in camera screening unavailing, stating:

And yet that information may be wholly colorless and

devoid of meaning to one less well acquainted with

all relevant circumstances. Unavoidably, this is a

matter of judgment, but in our view the task is too

complex, and the margin for error too great, to rely

whoily on the in camera judgment of the trial court

to identify those records which might have contribut-

ed to the government’s case.

23

89 S.Ct. at 971 (n. 14 omitted with inclusive authorities

omitted)."*

In addition to Coplon and Alderman, petitioners note

that 18 U.S.C. § 2518(10Xa) allows petitioners (aggrieved

persons) to seek pre- or post-trial hearings on issues

involving impermissible interceptions. Similarly, 18

U.S.C. § 3504 allows a party aggrieved to seek suppres-

sion predicated, inter alia, on unlawful eavesdropping.

Each statutory enactment calls for suppression if a hear-

ing yields evidence of illegality. The statutes contemplate

a “hearing.”

During this term of Court, Justice Breyer filed a con-

curring opinion in United States v. Armstrong, __ U.S.

__, 116 S.Ct. 1480, 1490 (1996). He explained that Fed.

R.Crim.Proc., 16(a)(1)C) contemplates that a “defendant’s

defense” can take many forms and thus, compel the pro-

duction of documents, including . . . (3) an unrelated

claim of constitutional right . . ., 116 S.Ct. at 1490. Sure-

ly, the undisclosed “inconclusive” OPR/DOJ report was

necessary for furtherance of the petitioners’ claims

regarding impermissible-intentional intrusion into the

attorney-client privilege. Unifying the aforementioned

enactments with Justice Breyer’s concurring opinion in

Armstrong, the declination to provide both disclosure and

an evidentiary hearing remains clear error.

Most assuredly, had this petition been presented from

the denial of petitioners’ post-conviction petition pursu-

ant to 28 U.S.C. § 2255 without an evidentiary hearing,

‘8 Justice White noted that the trial court could impose en-

forceable protective orders to guard against unwarranted dis-

closures, 89 S.Ct. at 973.

24

this Court’s opinion in Townsend v. Sain, 372 U.S. 293,

313, 83 S.Ct. 745, 757 (1963) (overruled on other

grounds, Keeney v. Tam Ayo-Reyes, 504 U.S. 1, 112 S.Ct.

1715 (1992)) would have required vacation and remand

(“. .. in other words a federal evidentiary hearing is re-

quired unless the state court trier of fact has after a full

hearing reliably found the relevant facts.”).”®

At bar, petitioners were deprived of the opportunity to

review (even under a protective order) the “inconclusive”

DOJ/OPR investigative report. That report may have fur-

thered petitioners’ district court presentation to the point

where the district court was satisfied that petitioners

had hearing entitlements. Clearly, the case at hand con-

flicts with the Second Circuit decision in United States v.

Coplon and this Court’s decision in Alderman, et al. v.

United States, ante.”* Each petitioner is serving the func-

'S Townsend’s counsel before the Court was George N. Leigh-

ton, Esq. Mr. Leighton eventually ascended to the United

States District Court in Chicago. He retired from the United

States District Court and returned to the private practice of

law. As trial counsel for Louis Marino (separately petitioning

for certiorari in this case), he was one of the attorneys visiting

with petitioners at the MCC in Chicago during 1990 and 1991.

He was also one of the recipients of the cassette tapes that are

the sine qua non of this issue (App. 20a).

2° The panel opinion affirming the declination to hold an evi-

dentiary hearing fails to identify an appropriate standard of

review. This Court’s recent decision in Ornelas v. United

States, ___ U.S. ___, 116 S.Ct. 1657, 1662 (1996), held that the

prevailing Seventh Circuit “clear error” standard was not sus-

tainable in light of this Court’s and sister circuit precedent.

The United States concurred that a de novo standard of review

was applicable in Fourth Amendment cases, 116 S.Ct. at 1661,

n. 4. The district court’s declination to grant an evidentiary

hearing considered and rejected Fourth Amendment plaints

(App. 49a-50a; n. 1).

25

tional equivalent of life immurement, without parole. The

time involved for an evidentiary hearing pales when con-

trasted with those sentences.

2. Constitutionally mandated verdict unanimity.

Verdict unanimity in federal criminal cases is constitu-

tionally mandated. This edict admits of no compromise.

In Andres v. United States, 333 U.S. 740, 68 S.Ct. 880

(1948), the court, while vacating a murder conviction,

wrote:

Unanimity in jury verdicts is required where the

Sixth and Seventh Amendments apply. In criminal

cases this requirement of unanimity extends to all

issues—character or degree of the crime, guilt and

punishment—which are left to the jury.

68 S.Ct. at 884 (n. 13 omitted).

In Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620,

1637 (1972), Justice Powell, separately concurred, noting

that Sixth Amendment verdict unanimity . . . is one of

the indispensable features of [a] federal jury trial . . . 92

S.Ct. at 1637.

Verdict repristination for the purpose of accuracy or

correctness is not proscribed. Indeed, the need for the

verdict to conform to the jury vote is constitutionally

compelled. Verdict unanimity can mean no less.

DeLaurentis, along with Infelise, Marino and Bellavia,

had been charged with conspiring to murder a bookmak-

er, Hal Smith. The Hal Smith indictment counts included

predicate acts 17(a) and (b) of count one (RICO conspira-

cy). Counts 8 and 9 were tracking substantive counts

charging the same conspiratorial homicide. DeLaurentis

was acquitted on counts 17(a) and (b) and count 9, but

count 8 bore a guilty “check mark.” Verdicts were re-

26

turned on March 11, 1992. Jurors returned for criminal

forfeiture deliberations on March 12, 1992; they were dis-

charged on March 12.

On Friday, the 13th of March, 1992 an anonymous

juror reported to a branch of the local media that peti-

tioner DeLaurentis had not been convicted of conspiring

to murder Hal Smith. With celerity the trial court met

with all counsel to order further jury inquiry. On March

17, 1992 the trial judge questioned the jury foreperson

about the count 8 verdict. A portion of that colloquy in-

cludes:

THE COURT: Um-hum. And so my question is then

this guilty that’s checked is a mistake?

JUROR 54: Right. (Tr. 106-107)

* ee KK *

Were there additional verdict mistakes?

**e KK KE *

Defense counsel urged that the judge ask the fore-

person only that question. No more. The government

opposed the inquiry. The trial judge sided with the gov-

ernment. The foreperson was only asked about count 8

(Tr. 114-15).

There is substantial authority for the proposition that

jurors are competent to testify that through mistake, the

real verdict on which agreement was reached in the jury

room was not correctly expressed in open court. Young v.

United States, 163 F.2d 187, 189 (10th Cir.), cert. denied,

332 U.S. 770 (1947); see also, McCullough v. Conrail, 937

F.2d 1167, 1171 (6th Cir. 1991); United States uv.

Stauffer, 922 F.2d 508, 513-14 (9th Cir. 1990); United

States v. Dotson, 817 F.2d 1127, 1130 (5th Cir. 1985);

Fox v. United States, 417 F.2d 84, 89 (5th Cir. 1969).

27

In United States v. Morris, 612 F.2d 483 (10th Cir.

1979), the court vacated multiple federal gambling con-

victions while remanding for a new trial. During a jury

polling it became clear that the foreperson of the jury

was not satisfied, 612 F.2d at 487-88. Though the jury

had returned verdicts as to four of the defendants, the

foreperson declined to affirm the verdict as to the fifth

defendant in open court. The trial court directed further

deliberations. Upon returning to open court, a mistrial

was declared for the fifth defendant. The foreperson

sought to talk to the court, wanting to explain some-

thing. The judge allowed no further jury polling. On

appeal, the convicted defendants asserted prejudicial col-

lective error in the manner in which the trial court con-

ducted the verdict proceedings. While reversing, the

court stated:

We start with the proposition that in a federal, crim-

inal case the requirement of unanimity applies not

only by reason of F.R.Crim.P., Rule 31(a), but also by

reason of the Sixth Amendment. Andres v. United

States, 333 U.S. 740, 748, 68 S.Ct. 880, 92 L.Ed.1055;

United States v. Gipson, 553 F.2d 453, 456 (5th Cir.).

It is a right so fundamental that it may not be

waived. E.g., United States v. Scalzitti, 578 F.2d 507

(3rd Cir.). * * *

In any case upon the appearance of any uncertainty or

contingency in a jury’s verdict, it is the duty of the

trial judge to resolve that doubt, for “[t]here is no ver-

dict as long as there is any uncertainty or contingency

to the finality of the jury’s determination.” * * * In

short, the trial court rejected all remedial measures.

The jury was restricted so that it could not reconsider

the verdicts as to these appellants when it was sent

back to deliberate further, repolling on the verdicts as

to these appellants was refused * * *, and mistrials

28

were denied to all of them. Thus there was no safe-

guard used to protect the constitutional right of these

appellants to valid, unanimous verdicts, despite the

danger signal. (612 F.2d at 488-90; parallel citations

and ft.nts. omitted; our emphasis).

Once the foreperson disclosed the clear mistake on

count 8, the verdicts were no longer certain, unqualified

or unambiguous. A cloud loomed. Verdict veracity was at

issue. Verdict ambiguity was a certainty. It was not as if

the court was powerless. Within approximately ninety-six

hours of the return of the forfeiture verdicts, the jurors

were reassembled. The ambiguity and uncertainty be-

came obvious. The defense only asked to inquire as to

any other verdict errors or mistakes. The district court

had both the opportunity and responsibility to remove

the cloud from the verdicts. Given the major and irrefut-

able premise of verdict uncertainty and ambiguity, the

Sixth Amendment’s mandate of verdict unanimity com-

pelled [other] verdict mistake inquiries. Juror #54 (the

foreperson) left count 8 blank—as all the others (Tr.

9/17/92 at pp. 113-115).

So who marked DeLaurentis guilty on count eight? If

not the foreperson—then an interloper? And what of

Infelise and Bellavia? Which verdicts were the product of

recordation error?

The district court unreasonably refused to inquire. The

panel affirmation agreed, but noted, “the judge is permit-

ted to inquire whether the verdict represents the actual

decision of the jury” (App. 10a-11a). While agreeing with

this undisputed principle, the affirming panel erroneous-

ly concludes that the petitioners asked the trial court to

“cross the line” (App. lla). The panel was referring to

FRE 606(b) which precludes inquiry into the deliberative

29

process. The pristine transcript reveals the constitutional

error. The petitioners had not urged the trial court to

delve into the deliberative process. They asked to know

only whether, once a serious mistake was revealed, were

there any other recordation [verdict] mistakes? To deny

the entreaty was the functional equivalent of foreclosing

constitutionally-mandated inquiries into Sixth Amend-

ment verdict unanimity. Surely, had there been a re-

quest for jury polling and trial court denial, trial anew

would result, United States v. Marinari, 32 F.3d 1209,

1212-14 (7th Cir. 1994).

The failure of the trial court to probe the potential for

additional verdict mistakes is without precedent. Verdict

unanimity is one of the hallmarks of the Sixth Amend-

ment. This Court must intercede. At the very least, the

Infelise and Bellavia-Hal Smith guilty verdict must be

set aside.

3. Adoption of the sentencing issues, arguments and

authorities presented, or to be presented, by Louis Marino.

Petitioners Infelise and Bellavia received maximum

consecutive sentences. infelise, at age 71, was sentenced

to sixty-three years in federal custody. Bellavia, age 60,

was sentenced to twenty-five years in custody. The sine

qua non for the maximum consecutive sentences (possi-

bly proscribed by the Federal Sentencing Guidelines) was

complicity in the Hal Smith homicide. Louis Marino simi-

larly received a maximum consecutive sentence. Marino

is filing a separate petition for writ of certiorari raising

constitutional and statutory sentencing issues. Petition-

ers Infelise and Bellavia seek leave of the Court to adopt

the Louis Marino issues and arguments as their own.

Were they to include the sentencing issues in this cer-

30

tiorari petition, the Court would be confronted with

wasteful duplications which would cost the Court need-

less expenditure of precious judicial time and resources

in order to review duplicative issues—hence, this request

for adoption.

CONCLUSION

The petition for certiorari should be granted.

Petitioners Infelise and Bellavia should be granted the

opportunity to adopt the sentencing arguments present-

ed, or to be presented, by Louis Marino in his separate

petition for writ of certiorari to the United States Court

of Appeals for the Seventh Circuit.

Respectfully submitted,

ALLAN A. ACKERMAN, Esq.

2000 N. Clifton Avenue

Chicago, Illinois 60614

(312) 332-2891

Counsel of Record

for Petitioners

Of Counsel:

PATRICK A. TUITE, Esq.

ARNSTEIN & LEHR

120 S. Riverside Plaza

Chicago, Illinois 60606

(312) 876-7877

la

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 93-1134, 93-1135, 98-1136, 93-1604, 93-2008,

93-3434, 93-3435, 93-3513, 93-3514, 93-3515,

93-3516, 94-1831, 94-3341

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM DIDoMENICO, et al.,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 90 CR 87—Ann Claire Williams, Judge.

ARGUED OcToBeR 31, 1995—Decipep Marcu 1, 1996

Before PosNER, Chief Judge, and CupAHY and COFFEY,

Circuit Judges.

POSNER, Chief Judge. The Chicago Outfit (the “Outfit,”

the “Mob,” the “Mafia”)—the criminal enterprise whose

most notorious boss was Al Capone—operates through

“street crews.” The twenty defendants in this mainly

RICO case that charges predicate acts of extortion, brib-

ery, murder, and other were members of the Fer-

riola Street Crew, named after its boss from 1979 to his

death in 1989, Joseph Ferriola. Ferriola was succeeded

by defendant Infelise. The Ferriola Street Crew engaged

2a

in the usual “Mob” activities, in particular the anne

racket (the collection of “‘street tax”’ from bro

illegal

ing, and bookmaking, with bribery of police, judges, prose-

cutors, and other public officials, subornation of jurors,

and the occasional murder thrown in to protect and hd

force its reign of terror. The focus of the

on the street crew’s efforts to collect street tax from “in.

dependent” bookmakers, which is to say bookmakers not

affiliated with the “Mob,” in the suburbs north of Chi

primarily during the 1980s. These efforts included

murder of a bookmaker named Hal Smith. The evidence

of the defendants’ participation in these activities was

overwhelming, except that the evidence of their participa-

tion in the murder depended critically on the testimony

of a turncoat member of the street crew, William Jahoda.

Smith had y refused a demand relayed to him from

defendant De tis to pay street tax, saying “fuck the

little guinea.” Infelise directed Jahoda to lure Smith to

Jahoda’s home, which he did, arriving in Smith’s car.

Jahoda told Smith to enter the house through the garage,

while Jahoda pretended to pick up his mail. Shortly after-

ward, through the open door to the kitchen, Jahoda saw

Smith lying dazed but conscious on the kitchen floor.

Infelise drove Jahoda back to the tavern where he had

met Smith and told him to burn his clothes. When Jahoda

returned home later that night, he found that the kitchen

floor had recently been mopped up. Infelise called and told

him to look for Smith’s cigar an glasses, which the mur-

derers thought they might have there. Jahoda did not

find the items. Smith’s body was found a few days later

in the trunk of his car. He had been tortured and then

strangled.

The defendants were tried together and found guilty of

most of the counts of the indictment and received long

eng a which in the rape ta Boge ~~ Sy the defen-

ts, given t e in prison.

Their appeals, wget arty we Sond consolidated, } sem six-

teen separate grounds. We shall confine our on to

3a

those that have arguable merit, disregarding such frivo-

lous ones as that the judge could not sentence the defen-

dants to terms of years that were (because of the defen-

dants’ age) the practical equivalent of life in prison with-

out a jury recommendation, as required by 18 U.S.C. § 34

as it read when they were sentenced. Section 34 applies

only to convictions for crimes punished by the chapter of

the federal criminal code in which the section appears

(mainly arson resulting in the destruction of aircraft or

motor vehicles), and none of the defendants was convicted

of any such crimes. It didn’t help, though, that in response

the government, overlooking United States v. Prevatte,

66 F.3d 840, 843-44 (7th Cir. 1995), ed that a term

of years, however long, and however old the defendants

are, is not within the scope of section 34. We held the

contrary in Prevatte and in United States v. Martin, 63

F.3d 1422, 1432-34 (7th Cir. 1995).

The most dramatic issue and the one pressed hardest

by the defendants arises from the bugging of a room in

the Metropolitan Correctional Center, the federal jail in

Chicago. The room had been set aside for the use of the

defendants, who were being detained in the jail awaiting

trial, in meeting with their lawyers. Someone made a

recording of a conversation between one of the defendants

and his lawyer and sent the tape to the lawyer. The de-

fendants argue that the district judge should have con-

ducted an evidentiary hearing to determine the extent of

the buggi d whether it had given the prosecution in-

foreign ahant defense strategy that the prosecution had

used to undermine the defense at trial.

The lawyer gave the to the government, which

began an investigation to determine who had bugged the

room. The FBI interviewed almost 150 people, including

the defendants, their lawyers, the prosecutors, and em-

ployees of the jail. The report of the investigation, which

was submitted in camera to the district judge (and which

we have read as well), indicated that the investigation had

been totally inconclusive. Although visitors to the MCC

are supposed to be screened for tape recorders, security

4a

was lax during 1991, when the bugging incident occurred,

as we know from the El] Rukns cases. See, e.g., United

States v. Boyd, 55 F.3d 239 (7th Cir. 1998), A tape

recorder may have been smuggled in to one of the defen-

dants by a visitor, or even carried in by one of the defen-

dants’ lawyers. A guard at the MCC might have been

in the pay of the defendants (there was evidence at trial

that at least one federal officer was in the pay of the Fer-

riola Street Crew) and made the in an effort to em-

barrass the prosecution. Or, as the defendants conjecture,

the prosecution itself may have bugged the meeting room

to find out what discreditable information the defendants

knew about Jahoda, a key prosecution witness. Of course

the prosecution would not have sent the of its illegal

bugwing to the lawyer for one of the defendants, but may-

be an MCC guard sympathetic to the “Mob” found the

tape and mailed it to the lawyer.

The government argues that the defendants did not lay

a foundation for an evidentiary hearing on the matter be-

cause they presented no evidence that the bugging altered

the result at trial—no evidence that the prosecution was

privy to the bugging or, if it was, used the information |

gleaned from it to undermine the defense or if it did

caused innocent people to be convicted of heinous crimes.

We do not consider this a sound argument. It pushes the

notion of harmless or nonprejudicial error too far. The

principle that an acquittal or a new trial is not a proper

remedy for L pecengernen misconduct, that the defendant

must show that the misconduct may have caused the jury

to convict him, is sound but like most legal a can-

not be maintained without qualification. erwise the

prosecution could send a defendant to prison without any

judicial process whatsoever and if he complained defend

by showing that had the defendant been tried with assist-

ance of counsel and all the other trimmings of modern

criminal procedure he would surely have been convicted

and sentenced to a term of years at least as long as the

prosecution proposes to hold him. The counterprinciple

that defeats this result is that denial of the right to coun-

sel (not the right to competent counsel, but the more basic

ile ali |

5a

right to some counsel) or of any other fundamental rights

of criminal defendants (such as the right to an impartial

judge or to trial by jury) is reversible error even if not

shown to be prejudicial—even if shown to be completely

harmless. E.g., Satterwhite v. Texas, 486 U.S. 249, 256

(1988); United States v. Martin Linen Supply Co., 430

ager 564, 572-73 (1977); Tumey v. Ohio, 273 U.S. 510, 535

1927).

We put to the government at oral argument the follow-

ing example. The government adopts and announces a

mn “ha of taping all conversations between criminal defen-

dants and their “ee It does not turn the tapes over

to the prosecutors. It merely stores them in the National

Archives. The government’s lawyer took the position that

none of the defendants could complain about such conduct

because none could be harmed by it, provided the prose-

cutors never got their hands on the tapes. We are inclined

to disagree, although for a reason that will become ap-

parent oa mig ag need not attempt to resolve the issue

definitively. The hypothetical practice that we have des-

cribed would, because of its pervasiveness and publicity,

undermine the freedom of communication between

efendants and their lawyers and with it the efficacy of

the — to counsel, because knowledge that a permanent

record was being made of the conversations between the

defendants and their lawyers would make the defendants

reluctant to make candid disclosures. (Totalitarian-style

continuous surveillance must surely be a great inhibitor

of communication.) And yet it would be impossible in any

pres case to show that the outcome had been

y the practice. Shillinger v. Haworth, 70 F.3d 1132, 1142

(10th Cir. 1995); United States v. Perry, 857 F.2d 1346,

1349-50 (9th Cir. 1988). At the other extreme are cases

of ad hoc governmental intrusion into the relation between

a criminal defendant and his lawyer, falling far short of

continuous surveillance. In such cases harm to the defense

must be shown because the bare fact of the intrusion does

not create a high probability that communication between

lawyer and client or between client and lawyer was dis-

6a

rupted. United States v. Morrison, 449 U.S. 361 (1981);

Weatherford v. Bursey, 429 U.S. 545, 554 n. 4, 558 (1977);

United States v. Castor, 937 F.2d 293, 297-98 (7th Cir.

1991); Clark v. Wood, 823 F.2d 1241, 1249-50 (8th Cir.

1987); Sinclair v. Schriber, 916 F.2d 1109, 1113 (6th Cir.

1990).

Our case may seem closer to the first pole than to the

second. The bugging was discovered before the trial and

from then on the defendants and their lawyers must have

wondered whether their conversations were being over-

heard, even though the district judge promptly authorized

the defendants to meet with counsel outside of the jail;

and conceivably this fear might have prevented effective

communication between client and lawyer, emptying the

right to the assistance of counsel of much of its m

Cf. United States v. Cronic, 466 U.S. 648, 659-60 (1984);

United States v. Berkowitz, 927 F.2d 1376, 1381 (7th Cir.

1991). “Free two way communication between client and

attorney is essential if the professional assistance guar-

anteed by the sixth amendment is to be me

United States v. Levy, 577 F.2d 200, 209 (8d Cir. 1978);

see also Geders v. United States, 425 U.S. 80, 91 (1976).

The defendants do not argue, however, that the effect of

the natural anxiety of themselves and their lawyers con-

cerning the confidentiality of their conversations was suf-

ficient to warrant a new trial or perhaps—since it is not

obvious how a new trial would dissipate the anxiety—

even the dismissal of the indictments with prejudice. Such

an argument would be unlikely to succeed when so far

as appears the bugging incident was completely isolated

(and isolated intrusions into the attorney-client relation

are, as we have seen, not reversible error per se) and

the bug may have been planted by one of the defendants.

In any event the argument is not made. All the defen-

dants argue for is an evidentiary hearing to get to the

bottom of the matter. In light of the report of the FBI

investigation it is unlikely that such a hearing would get

us nearer to the heart of the mystery. But the defendants

are understandably reluctant to defer to a report they

Ta

have not seen compiled by an agency that they suspect

or at least affect to suspect of being responsible for the

very crime that it was investigating.

The defendants’ request is a reasonable one but it comes

too late. The district judge offered them an evidentiary

hearing, directed the government to furnish them with

a list of all the employees of the MCC who had had ac-

cess to the meeting room, and gave the defendants’ law-

yers subpoena power to compel the presence of witnessses

at the hearing. The hearing was scheduled for September

23, 1991, a week before the scheduled opening of the trial.

Shortly before the hearing was to take place, the defen-

dants requested more time to complete their investiga-

tion. The hearing was repeatedly postponed at the defen-

dants’ rea During the delay the government sub-

mitted affidavits from all the members of the prosecution

team, attesting their lack of complicity in the bugging.

Finally on July 16, 1992, almost ten months after the

original date set for the hearing and four months after

the jury had returned its verdict, the defendants moved

for an evidentiary hearing. After reviewing the FBI re-

port, and noting that despite a lengthy investigation the

defendants had come up with no evidence to suggest that

the government was implicated in the bugging, the judge

denied the motion. At no time during this entire period—

which did not end until May 23, 1994, when the judge

denied the defendants’ last request for access to the FBI

report—did the defendants submit the tape to the judge.

In these circumstances we cannot say that the judge

abused her discretion in declining to order an evidentiary

hearing. A critical consideration is the government’s affi-

davits. Although evidentiary hearings in criminal cases are

not governed by the Federal Rules of Civil Procedure,

the provisions of those rules relating to summary judg-

ment are applicable by analogy. United States v. Ritter,

752 F.2d 435, 439 (9th Cir. 1985); cf. United States v. Ran-

dle, 966 F.2d 1209, 1212 (7th Cir. 1992); Castillo v. United

States, 34 F.3d 443, 445-46 (7th Cir. 1994). In opposing

the evidentiary hearing sought by the defendants the gov-

8a

ernment was in a position analogous to that of a movant

for summary judgment who argues that no genuine issue

of material fact exists aby therefore that summary judg-

ment should be A fundamental principle of sum

mary jedgaact hak we Glek ought ts be saga Wsoete

such as this in which the issue is whether to hold an

evidentiary hearing is that if the proponent supports his

motion with affidavits, the opponent must counter the

motion with his own affidavits (or equivalent materials,

which is to say materials having the quality of evidence).

By submitting affidavits the government shifted to the

defendants the burden of submitting counteraffidavits that

would show there was an issue that onl “y an evidentiary

hearing could resolve. The defendants did not take up the

burden although they had many months to do so.

Against this it can be argued, in accordance with our

earlier discussion, that even if the prosecution team was

not complicit in the bugging, the defendants’ right to coun-

sel may have been infringed. It is one federal government

after all. If the director of the MCC ordered the b

there would be a serious issue of the infringement of that

right even if the fruits of the b were not turned

over to the prosecutors. And on that issue the affidavits

did not bear at all. But throughout these proceedings, up

to and including the appeal, the defendants have accepted

that they must show, if not prejudice to their defense,

if not likelihood of acquittal had the bugging not taken

es at least potential prejudice and for that they would

ve to show that the prosecution received, directly or

indirectly, valuable information from the ing. This the

prosecution denied by affidavit—denied that it had re-

ceived any information from the bugging—and the inabil-

ity of the defendants, though granted ample time and re-

sources, to come up with counteraffidavits dooms their

challenge to the denial of an evidentiary hearing. Had the

defendants not sought to ne the hearing first offered

them by the district judge, they would have had their

hearing. They gambled on having a better hearing if given

more time to investigate, but the gamble failed when the

9a

investigation turned up nothing, and they must be held

to their tactical decision.

In short, the defense could have (1) argued that no

showing of prejudice was required or (2) presented some

evidence of prejudice. By doing neither, the defense for-

feited their claim to an evidentiary hearing. We do not

think that we are being overtechnical in so concluding,

especially since, given the inconclusiveness of the FBI’s

investigation, the likelihood that an evidentiary hearing

would get to the bottom of the bugging incident is remote.

The defendants raise two issues concerning the jury.

The first is whether the judge abused her discretion in

empaneling an anonymous jury, that is, in refusing to

reveal the names and addresses of the jurors to the par-

ties. A juror’s name and address are information poten-

tially valuable to a party in deciding whether to challenge

a juror either for cause or by the use of a peremptory

challenge. The juror might turn out to be related to a

party or a witness (yet not disclose this on voir dire) or

to live in a neighborhood whose residents have demo-

graphic characteristics predictive of their likely response

to the issues in the case. There is skepticism in some

quarters about the ability of lawyers, even when aided

by pricey consultants, to egy favorable jurors; but so long

as we have challenges for cause and peremptory chal-

lenges the objection to anonymous jurors that it deprives

the lawyers of information essential to their exercise of

a valued procedural right cannot be rated as negligible.

But we think the district judge acted within her discre-

tion (see United States v. Crockett, 979 F.2d 1204, 1215

(7th Cir. 1992); United States v. Paccione, 949 F.2d 1183,

1192 (2d Cir. 1991)) in deeming the right overridden in

this case by the fear of jurors to be identified to the

Chicago Outfit and by the danger that they might be bribed.

Intimidation in general, and bribery of public officers con-

nected with the criminal justice system (and jurors of

course are ad hoc public officers of that system—are in

fact lay judges) in particular, are specialties of the Out-

fit. This is not a case, like United States v. Vario, 943

10a

F.2d 236, 241 (2d Cir. 1991), in which the defendants are

rumored to have “Mob” connections. The defendants are

the “Mob.” We add that the anonymity of the jury hurt

the prosecution as well as the defense, since the prosecu-

tion too has and frequently exercises the right to a

lenge jurors for cause or to exercise agp ea See

lenges. The judge’s ruling may not have altered the bal-

ance of advantages between prosecution and defense.

The other jury issue relates to an inconsistency in the

verdict regarding defendant DeLaurentis. He was accused

of participation in the conspiracy to murder the book-

maker Hal Smith in two different counts of the indict-

ment. The jury found him not guilty of that participation

in one of the counts (Count One) but guilty in the other

(Count Eight). The poll of the jury did not illuminate the

discrepancy, as each juror indicated that the verdict was

correct. On the day after the verdict was rendered, how-

ever, one of the jurors stated on a local news pro

that the jury had not voted DeLaurentis guilty of con-

spiracy to murder in Count Eight. This led the judge to

interview the jurors, a week later, in the presence of

counsel. The judge ascertained that the jury had indeed

intended to acquit .DeLaurentis of both counts of conspir-

acy to commit murder. But she refused the defendants’

request that she ask the jurors whether they had made

any other mistakes in filling in the verdict form.

Again we think the judge acted within the scope of her

discretionary authority. There was no indication of any

other mistake in the verdict. The interviews took place

a week after the verdict and the jurors no longer had

their notes of what had gone on in the jury room. It is

not clear what line of questioning might have identified

another error on the verdict form. Although not permitted

to inquire into the deliberative process itself—the discus-

sion or thoughts or votes of the jurors, Fed. R. Evid.

606(b)—the judge is permitted to inquire whether the ver-

dict represents the actual decision of the jury. Continen-

tal Casualty Co. v. Howard, 775 F.2d 876, 885 (7th Cir.

1985); Plummer v. Springfield Terminal Ry., 5 F.3d 1

lla

(ist Cir. 1993). But this right of inquiry must be conducted

with due regard for the policy that underlies Rule 606(b).

Jurors are conscripts, taken away from their jobs or other

activities sometimes for months at a time (the trial in this

case lasted four and a half months) and enlisted in the

justice system for meager pay, here to try dangerous men

who are members of a gang capable of retaliation against

jurors. To embarrass or harass these jurors by protracted

questioning about their deliberations would be a disser-

vice to the jury system, which can yey Soeige if jurors

are sullen and resentful as a result of being abused by

judges and lawyers. The line is drawn between determin-

ing whether the verdict is true in the sense of an accurate

statement of the jury’s decision and rational in the sense

of intelligent and deliberated. Jd. at 4; Continental Cas-

ualty Co. v. Howard, supra, 775 F.2d at 885-86; Karl v.

Burlington Northern R.R., 880 F.2d 68, 74 (8th Cir. 1989).

The defendants ask us to cross the line. There was no

reason to believe that the verdict contained other clerical

errors. A march through the verdict in search of them

would inevitably have become an inquest on the character

of their deliberations.

The two jury issues raised by the defendants thus turn

out to be linked by their «smmon potential for imperil-

ing the jury system by undermining the protection of

jurors from threats to their safety and dignity.

There is an issue relating to the instructions. After the

trial in this case the Supreme Court, in United States v.

Gaudin, 115 S. Ct. 2310 (1995), held that the issue of

materiality, in a prosecution under 18 U.S.C. § 1001 for

making false statements to federal agencies, is one of fact,

not law, and is therefore for the jury to determine. In

our case the judge said to the jury, with respect to the

charges of violations of the Internal Revenue Code made

in the indictment against several of the defendants, “I

instrvect you as a matter of law that understatement of

‘total income’ is a material matter.” The provisions of

the Internal Revenue Code under which these defen-

dants were charged, however, 26 U.S.C. §§ 7206(1) and (2),

12a

punish false or fraudulent statements with to

material facts, thus bringing the principle of in into

play. These defendants would therefore be entitled to a

new trial on the tax counts had they raised the issue in

the district court. Since they did not, they can prevail

only if the error in the instructions was a plain error, and

for the reasons stated in the concurring opinion in Gaudin,

115 S. Ct. at 2322, and in our recent opinion in United

States v. Ross, No. 92-1449, slip op. at 12-17 (7th Cir. Feb.

2, 1996), we believe that it was not.

Jahoda testified to a number of conversations that he

had had with defendant Bellavia in 1989, concerning the

murder of Smith five years earlier. For e le, in a

lain allusion to the murder, Bellavia told J. “You

w, when them things , I just, when they’re

done, they’re done. . . Bh. Se out. or ae

you got to get it out in open and you feel better, an

you can put it to bed once and for all. You know, it’s

done and gone, forget about it.” In the same vein he told

Jahoda, “Forget about it. You know, it’s gone. . . . [YJou

never do something with . . . anybody you’re going to

worry about in the future. te about it. You know,

it’s gone. The day it was over, it was over. It’s forgot- -

ten. That was the end of it.” These statements, though

hearsay, were admitted into evidence against the other

defendants as having been made in furtherance of the con-

spiracy. Fed. R. Evid. 801(dX2XE). Against Bellavia him-

self, they were uncontroversially admissible as the admis-

sions of a party. Fed. R. Evid. 801(dX2XA). But the prin-

ciple that allows the admission of conspirator X to be

treated as the admission of defendant conspirator Y,

usable against Y as the admission of a party provided that

eaken Gon eee ceepeapetite ye pane tad

isqui w lieve concept of conspiracy

gives prosecutors too much power. The rationalization for

the principle is that conspirators are each others’ agents

(and therefore principals), and the principal is bound by

the agent’s words and deeds, provided they are within

the scope of the agency, so that an admission by one is

13a

an admission by all and can be used against all as “their”

admission.

This translation of commercial principles of agency in-

to the law of evidence is one of the less impressive ex-

amples of what Coke called the “artificial reason” of the

law. The concern behind the hearsay principle is with the

reliability of evidence “cv ay toma’ tn Be sd facili pon othe

en anyway w is

to discourage rather than to facilitate enterprise. Because

a statement to be admissible as the statement of a party

need not have been against interest when made (or at

time for that matter), Huff v. White Motor Corp., 609

F.2d 286, 292 and n. 7 (7th Cir. 1979); 2 McCormick on

Evidence § 254, p. 143 (4th ed., John William Strong gen’!

editor, 1992), the admissibility of such a statement can-

not convincingly be grounded in the presumed trustwor-

thiness of a statement that is against the utterer’s self-

interest to give. E.g., 2 id., p. 141; United States v.

Pallais, 921 F.2d 684, 687-88 (7th Cir. 1990). The stand-

ard justification of its admissibility is a kind of estoppel

or waiver theory, that a my | should be entitled to rely

on his Keg statements. E.g., United States v. Chap-

pell, F.2d 308, 312 (7th Cir. 1983); 2 McCormick on

Evidence, supra, p. 141. It has, it seems to us, rather

uttle force as applied to the admissibility of irator’s

statement. United States v. Gil, 604 546, (7th

Cir. 1979); Comment, “Reason and the Rules: Personal

Knowl and Coconspirator H >” 135 U. Pa. L.

Rev. , 1272-73 (1987). About all that can be said in

favor of the rule is that since the statements of agents

of legitimate enterprises are imputed to the enterprise

through the operation of the law of agency on the party-

admission rule, illegitimate enterprises, such as criminal

conspiracies, should not receive more favorable treatment.

Whatever the justification for the rule—and there may

be none—its dependence on agency —— makes the

scope of the conspiracy criti a conspiracy, and a

conspiracy to conceal an earlier, completed conspiracy, are

two different conspiracies, like two different , and

l4a

statements made in furtherance of the second, the cover-

up conspiracy, are therefore not admissible in evidence

to demonstrate participation in or the acts of the first con-

spiracy. Krulewitch v. United States, 336 U.S. 440, 443-44

(1949); United States v. Masters, 924 F.2d 1362, 1368 (7th

Cir. 1991); United States v. Xheka, 704 F.2d 974, 985 (7th

Cir. 1983). But this is not such a case. Hal Smith was

killed as part of the overall ress ena to extract street

tax from the independent boo ers in the area worked

by the street crew. The conspiracy was still going on

when Bellavia, in an effort to prevent its SS

his reassuring statements to Jahoda. Statements desi

to prevent a conspiracy from collapsing are not to be

equated to statements designed to cover up a finished con-

spiracy. In the first case unlike the second there is only

one conspiracy; the statements are made in an effort to

shore it up and keep it going; they are therefore admissi-

ble against the conspirators. United States v. Marin, 7

F.3d 679, 690 (7th Cir. 1993); Garlington v. O’Leary, 879

F.2d 277, 284 (7th Cir. 1989); United States v. Mason, 658

F.2d 1263, 1270 (9th Cir. 1981).

The remaining issues that require discussion all relate

to sentencing. Defendants Bellavia, Infelise, and Marino

object vigorously to the fact that the judge in determin-

ing their sentences found that their conduct had included

a conspi (nested within the overall RICO conspiracy)

to murder Hal Smith, even ico coud ae either acquit-

ted or hung on the counts that these defendants

with participation in that conspiracy. The issue of their

participation was before the jury, they argue, and in find-

ing guilt where the jury did not the judge usurped the

jury’s function. This is wrong. The jury was asked to

decide whether there was proof of the defendants’ guilt

beyond a reasonable doubt, whereas the issue in senten-

cing is whether the defendants’ guilt is shown by a pre-

ee neeager of the evidence, a lower standard, so that the

ailure of the proof to satisfy the first standard doesn’t

show that it fails to satisfy the second. United States v.

Jones, 54 F.3d 1285, 1294 (7th Cir. 1995); United States

15a

v. Chandler, 12 F.3d 1427, 1434-35 (7th Cir. 1994). Other-

wise you couldn’t have a tort suit for wro death as

the sequel of the defendant’s acquittal, which of course

you can.

We acknowledge the growing concern that defendants

7 the angers +o mu bei oF geome for crimes that

they were adju ilty of only under the civil stan-

dard. United States v. Ebbole, 917 F.2d 1495, 1496 (7th

Cir. 1990). The government could not persuade the jury

to convict these three defendants of conspiracy to murder

Hal Smith but they were sentenced for the crime anyway.

The principle exploits the traditional indifference of re-

viewing courts to the length of a sentence within the

bounds fixed by the statute under which the defendant

was convicted. Although two members of this court have

recently expressed tentative support for requiring, as a

matter of the federal common law of criminal procedure,

proof by clear and convincing evidence of facts presented

at the sentencing hearing in justification of a markedly

higher sentence than the facts found at trial, United

States v. Rodriguez, No. 94-2080, slip op. at 3 (7th Cir.

Jan. 4, 1996) ( nt from denial of rehearing en banc),

that is neither the present view of a majority of the

judges nor a position urged by the defendants in this case.

DeLaurentis was sentenced to 222 months in prison,

although his base offense level after various adjustments

other than the one in issue was only 33, for which the

guidelines range is 135 to 168 months. The judge raised

the sentence far above that range by ing an upward

departure on the basis of the number of crimes com-

mitted by DeLaurentis that been counted neither in

the base offense level nor in his criminal history (he had,

in fact, no significant criminal history). The reason for the

departure was that the base offense level is “topped off”

at five “units” (which in this case equates to crimes).

U.S.S.G. §3D1.4; United States v. Dawson, 1 F.3d 457,

459 n. 2 (7th Cir. 1993). DeLaurentis had act com-

mitted at least 22 crimes, of which 6 would get him to

the 5-unit top. Since all 22 crimes were committed in fur-

therance of the RICO conspiracy, they were conduct re-

16a

lated to the offense of conviction rather than (as in United

States v. Dawson) being a part of the defendant’s criminal

history. Judge Williams divided the number of uncounted

crimes by 5 in order to yield additional base levels, result-

ing in the punishment bonus of which the defendant com-

plains. We do not understand the defendant to be argu-

ing that the divisor was too small. The choice of the

divisor is an exercise of judgment that an appellate court

will not disturb unless it exceeds the of reason.

United States v. Chase, 894 F.2d 488, 491-92 (1st Cir.

1990); but cf. United States v. Pearson, 911 F.2d 186,

190-91 (9th Cir. 1990).

The ent, rather, is that the grouping provision

(section 3D1.4) is limited to convicted crimes (or to stipula-

tions of crimes). U.S.S.G. ch. 3, pt. D, introductory com-

ment; United States v. Dawson, supra, 1 F.3d at 463;

United States v. White, 888 F.2d 490, 496 (7th Cir. 1989);

United States v. Paccione, 949 F.2d 1183, 1205 (2d Cir.

1991); United States v. Blanco, 888 F.2d 907, 909-10 (1st

Cir. 1989). Unconvicted, unstipulated crimes may not be

used for a departure based on that section. United States

v. Dawson, supra, 1 F.3d at 463. Only 13 of DeLaurentis’s

22 crimes were ones of which he had been convicted. So

his punishment bonus under section 3D1.4 should have

been only Z at most (13 — 6 = 7, 7 + 4 = 2), rather than

the 3 that the judge gave him. There may be other grounds

for an upward departure, see U.S.S.G. § 5K2.0; United

States v. Dawson, supra, 1 F.3d at 465; United States v.

Uccio, 940 F.2d 753, 759 (2d Cir. 1991), but that is some-

thing for Judge Williams to consider when resentencing

DeLaurentis.

The last issue we need discuss concerns the denial of

defendant Sarno’s motion to vacate his plea agreement

on the ground that the district judge gave him a much

heavier sentence than the agreement contemplated. The

agreement specified a guidelines range of 46 to 57 months

and in fact he was sentenced to 78 months. But there was

no violation of the agreement, which stated that the guide-

line calculations in it “are preliminary in nature and sub-

17a

ject to revision by the Court.” The calculations turned

out to be in error and were corrected by the judge. Sarno

explicitly assumed the risk of such an error, and has only

himself or possibly his lawyer to blame. He could have

refused to sign the plea agreement unless it ified that

it could be rescinded if the judge went outside the guide-

lines range set forth in it. Fed. R. Crim. P. 11(eX1XOQ),

(eX4); Carnine v. United States, 974 F.2d 924, 930-31 and

n. 8 (7th Cir. 1992); United States v. Ellison, 798 F.2d

1102, 1105 (7th Cir. 1986).

DeLaurentis is entitled to be resentenced. With this ex-

ception, the judgments are affirmed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Severth Circuit

18a

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT — WITH ORAL ARGUMENT

Date: March 1, 1996

BEFORE:

Honorable Richard A. Posner, Chief Judge

Honorable Richard D. Cudahy, Circuit Judge

Honorable John L. Coffey, Circuit Judge

Nos. 93-1134, 93-1135, 93-1136, 93-1604, 93-2008, 93-3434,

93-3435, 93-3513, 93-3514, 93-3515, 93-3516, 94-1831,

94-3341

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

WILLIAM DIDOMENICO, also known as BILLY D;

HARRY ALEMAN, PAUL SPANO, et al.,

Deferants-Appellants

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 90 CR 87, Ann Claire Williams, Judge

The judgment of the District Court is AFFIRMED, with

the exception of Defendant DeLaurentis who is entitled

to be resentenced, in accordance with the decision of this

court entered on this date. :

19a

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

May 23, 1996

Before

Hon. Richard A. Posner, Chief Judge

Hon. Richard D. Cudahy, Circuit Judge

Hon. John L. Coffey, Circuit Judge

Nos. 93-1134, 93-1135, 93-1136, 93-1604, 93-2008, 93-3434,

93-3435, 93-3513, 93-3514, 93-3515, 93-3516, 94-1831,

94-3341

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM DIDOMENICO, et al.,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 90 CR 87, Ann Claire Williams, Judge.

ORDER

Petitions for rehearing and suggestions for rehearing

en banc have been filed on behalf of all appellants, fol-

lowed by the filing of a petition for rehearing by the ap-

pellee. All the judges on the original panel have voted to

deny the petitions, and none of the active judges has re-

quested a vote on the suggestions for rehearing en banc.

The petitions are therefore DENIED.

20a

[Dated September 25, 1991]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

Vv. Case No. 90 CR 87

[R. 839]

ROCCO INFELISE, et al.

MEMORANDUM OPINION AND ORDER

Several weeks ago copies of a cassette tape recording

containing privileged conversations were delivered to the

attorneys for defendants Marino, DiDomenico and Sarno

by unidentified sources. The defendants maintain that

this tape was recorded while certain defendants, who are

being detained pending trial, were meeting with their

attorneys in their trial preparation room on the 19th

floor of the Metropolitan Correctional Center (“MCC”).

The defendants now move to postpone the trial until it is

determined who did the taping. For the following rea-

sons, defendants’ motion to postpone the trial date is

denied.

Background

During the week of August 26, 1991, George Leighton,

Robert Stevenson and Anthony Onesto, attorneys for

defendants Marino, Sarno and DiDomenico respectively,

received copies of a tape recording from unidentified

sources. According to defense counsel, the tape was

recorded in a room on the 19th floor of the Metropolitan

2la

Correctional Center (“MCC”) where the attorneys and the

detained defendants were allowed to meet to prepare for

trial. Defense counsel further submit that the tape con-

tains privileged conversations between some attorneys

and their clients about this case. After the aforemen-

tioned defense attorneys received copies of the tape, they

notified the Chief Judges of the District Court and the

Court of Appeals for the Seventh Circuit, as well as the

U.S. Attorney for the Northern District of Illinois. On

August 29, 1991, the room on the 19th floor of the MCC

was sealed and the U.S. Attorney’s office for the North-

ern District of Illinois, in conjunction with the Justice

Department’s Office of Professional Responsibility

(“OPR”), began an investigation to determine who made

the tape recording at issue. The defendants also began

their own independent investigation.

On September 5, 1991, the defendants presented a

motion to this court requesting the court to vacate the

September 30, 1991 trial date pending the conclusion of

the investigations into who perpetrated the taping. De-

fendants argued that it would be unfair to hold them to

the trial date given that they could no longer use the

room on the 19th floor to prepare for trial. The court

then asked for a report on the progress of the govern-

ment’s investigation into this matter from Assistant U.S.

Attorneys Dan Gillogly and Mark Rotert, who were as-

signed to work on the investigation with the O.P.R. Mr.

Gillogly first stated that he and Mr. Rotert had set up a

Chinese Wall between themselves and the A.U.S.A.’s

prosecuting the Infelise case, so that no information re-

garding the investigation would be revealed to the

Infelise prosecutors. Mr. Gillogly then stated that al-

though the technical sweep of the room would be com-

22a

pleted later that day, he could not even estimate how

long the entire investigation would take. Based upon the

fact that defendants had been unable to meet with their

attorneys for a week, the court vacated the jury selection

date of September 23, 1991. However, because no evi-

dence of wrongdoing by the prosecutors or agents as-

signed to this case had been presented, the court reset

the date of jury selection to October 1, 1991. The court

also set another status hearing for September 12, 1991.

At the September 12 status hearing the court received

a further update on the progress of the government’s in-

vestigation from Mr. Gillogly.' He reported that the gov-

ernment was continuing its technical investigation and

was also conducting interviews of the attorneys, agents

and defendants involved in this case. Mr. Gillogly esti-

mated that the government’s investigation would be com-

pleted in 35-40 days. The defendants estimated that they

needed the same amount of time to complete their in-

vestigation.

' On September 11, 1991, defendants Sarno and Salerno filed

a motion requesting, among other things, that the court

appoint a special prosecutor, who is not connected to the U.S.

Attorney’s Office for the Northern District of Illinois, to con-

duct the investigation in lieu of Mr. Gillogly and Mr. Rotert.

On September 17, 1991, the government filed a response in

which the government demonstrated that the defendants’

motion for a special prosecutor lacks a sound legal basis.

Nevertheless, in order to prevent any public perception that

the investigation is not being handled fairly, the government

requested that members of the Office of Professional Responsi-

bility assume total responsibility for the completion of the in-

vestigation. Thus, as of September 17, 1991, Mr. Gillogly and

Mr. Rotert withdrew from the investigation. Having received

no objection from defense counsel regarding this procedure,

the court holds that defendants’ motion for the appointment of

a special prosecutor is moot.

23a

After hearing brief argument on the necessity of post-

poning the trial until after the completion of the investi-

gations, the court determined that the only question that

needed to be decided before trial was whether the gov-

ernment attorneys or agents involved in this case had

participated in or benefitted in any way from the taping

of defense counsel and their clients. The court decided

that the best way to proceed was to have a hearing on

Monday, September 23, 1991, to determine if government

attorneys or agents involved in the infelise case were

tainted in any way by the tape recording. If, after the

hearing, the court determined that no government attor-

neys or agents assigned to this case were tainted, the

trial would proceed. The court explicitly stated that this

procedure would in no way preclude defendants from

having another hearing on the issue of taint after the

completion of the investigations, if a further hearing was

needed. The court also stated that it would entertain any

motions to dismiss or suppress that defendants wanted

to bring based on the results of the investigations. In

short, the court intended to use the September 23 “taint

hearing” as an initial inquiry before proceeding to trial.

The court fully intended to adjourn the trial for further

hearings if and when any further hearings became neces-

2

sary.

* The court notes that because defendants refused to meet

with their attorneys in the 19th floor conference room of the

MCC, the court ordered that the defendants be brought to

their attorneys’ offices eight hours per day, five days per week

to prepare for trial. Defense counsel and government counsel

drafted an agreed order under which the U.S. Marshals’ ser-

vice transports the defendants from the MCC to their attor-

neys’ offices according to a set schedule. See Order dated Sep-

tember 13, 1991.

24a

On September 20, 1991, defendants filed a motion to

“Adjourn the September 23, 1991 Suppression Hearing

Date.” In their motion, defendants indicated that they

did not want to have a separate “taint hearing” before

the completion of the pending investigations into who did

the taping, presumably because defendants believe that

the findings of these investigations will impact on the

issue of government taint. The Assistant U.S. Attorney

who was assigned to represent the Infelise prosecutors at

the “taint hearing,” Mr. Barry Elden, offered to submit

affidavits from the prosecutors and case agents regarding

whether they were involved in or profited from the tap-

ing in any way. Mr. Elden suggested that the court could

proceed to trial with the affidavits, and then adjourn the

trial if and when the defendants were ready to go for-

ward with a comprehensive hearing. The defendants

countered that the court must postpone the trial date

until the investigations into the MCC taping are com-

plete and the court can hold a full hearing regarding this

issue. The defendants argued that postponing the trial

was necessary from both a legal and a practical stand-

point. The court will now address each of defendants’

arguments regarding the necessity of postponing the

trial.

Government’s Right to Appeal

Surprisingly, defendants first argue that the court

must postpone the trial until after the investigations are

complete and a hearing is held in order to preserve the

government’s right to appeal. Defendants point out that

if the court empanels a jury and starts the trial, and

then dismisses the indictment mid-trial, jeopardy will

have attached. Thus, even if the government successfully

25a

appealed the indictment dismissal, the victory would be

a hollow one since the government would not be able to

re-indict defendants on the same charges. The govern-

ment addressed this issue at the September 20 status

hearing and stated that the government is aware of this

risk and is willing to assume such a risk and go to trial.

Thus, because the government is the only party which

can assert this argument, and it has chosen not to do so,

the argument is moot.

Use of Theme of Improper or outrageous

Government Conduct

Defendants next argue that the trial must be ad-

journed pending resolution of the question of who tape-

recorded defendants and their attorneys because if it

turns out that there is some evidence of government in-

volvement in the taping, but not enough evidence to war-

rant indictment dismissal, defendants want to question

potential jurors regarding their feelings about illegal

electronic surveillance by the government. Moreover,

defendants contend that they would want to use the

theme of government misconduct during their opening

statements. Defendants would also want to ask any gov-

ernment agents who testify about their involvement in

the taping in order to establish bias of a particular wit-

ness.° )

3 The court notes that this argument in support of postponing

the trial was not included in any written submission, and in-

stead was advanced by defense counsel at the September 20

status hearing. Thus, defendants have provided no case law in

support of this argument.

26a

The court finds that the aforementioned considerations

do not warrant postponing the trial at this point. For

example, the court understands that defendants want

potential jurors questioned about their feelings regarding

illegal government taping, if in fact illegal taping oc-

curred in this case. However, defendants’ inability to

have the court ask questions regarding this issue will not

interfere with defendants’ right to choose a fair and im-

partial jury. The court intends to conduct a thorough voir

dire which will give defendants a more than adequate

foundation upon which to base their challenges. As the

First Circuit stated in Schlinsky v. United States, 379

F.2d 735, 738 (1st Cir. 1967), “the purpose of voir dire is

to ascertain disqualifications, not to afford individual

analysis in depth to permit a party to choose a jury that

fits into sore mold that he believes appropriate for his

case.

Similarly, the court finds that defendants will not be

deprived of any fundamental rights if their attorneys are

prohibited from discussing the taping issue in their open-

ing statements. Courts routinely prohibit attorneys from

discussing various topics in their opening statements for

a variety of reasons, one of the most common being the

lack of a sufficient factual basis. Furthermore, given that

the trial is scheduled to last four to five months, there

will be ample opportunity to discuss this theme during

cross-examination of government witnesses, during the

defense case and during closing arguments if the investi-

gations produce any evidence of government involvement.

On a similar note, defendants argued that if they found

out about a certain agent’s involvement in the iaping

after he has been cross-examined, it would not be ade-

quate to re-call him to inquire about his involvement in

eee

27a

the taping later in the trial. In support of this argument,

defense counsel stated that there are studies which show

that once jurors hear something, such as damaging direct

testimony, it stays with them, unless it is challenged.

However, defense counsel failed to give the court any

specific citations to these studies. But even if there is a

study that stands for such a broad proposition, the court

is inclined to believe that the effectiveness of a certain

line of cross-examination is not solely dependent upon

when it is presented to the jury. If the content of cross-

examination is sufficiently damaging, it is likely to have

an impact upon the jurors no matter when it is pre-

sented.

Pendency of Plea Negotiations

The defendants next argue that the court should post-

pone the trial until the issue of who taped the defen-

dants is resolved because, before the issue arose, some

defendants were engaged in plea negotiations, and now

such discussions have ceased. See Defendant Spano’s

Motion to Revisit the Question of Severance at 4. How-

ever, the court questioned the attorneys about this issue

at the September 20 status hearing and was informed

that the parties were attempting to work out language

for conditional plea agreements which would preserve de-

fendants’ right to attempt to withdraw their pleas it the

current investigations reveal any government miscon-

duct. Thus, the court finds no evidence at this point that

a decision to go forward with the trial, without knowing

the outcome of the investigations, would prejudice any

defendant’s right to plead guilty and still preserve the

issue of government misconduct.

28a

Sixth Amendment Violation

Finally, defendants allege that the court must vacate

the trial date pending the result of the investigations of

the taping because they believe they have made a suffi-

cient showing that the taping was done by the govern-

ment. As the court understands the defendants’ argu-

ment, they contend that in light of their showing of

possible government involvement and in light of the fact

that some defendants face very serious penalties if con-

victed, the court must allow the defense attorneys to

fully investigate the matter before trial. Then, defen-

dants can either file a motion to dismiss or suppress be-

fore trial, and possibly avoid all the difficulties criminal

defendants face during trial. While the court is just as

eager as the defendants to “get to the bottom of this,”

neither the facts nor the law applicable to this issue re-

quires postponing the trial at this time. First, the court

finds that at this juncture, defendants have not provided

any real evidence that the prosecution team (i.e., the

agents or attorneys in this case) taped the defendants.

Second, the court finds that the defendants have not pre-

sented any cases which hold that a court must delay a

trial based on the possibility that defendants may un-

cover evidence to support a motion to dismiss or to sup-

press. Third, the court will entertain a motion to dismiss

or suppress at any point during the trial, and will stop

the trial to hold an evidentiary hearing if necessary.

Therefore, defendants waive no rights by going forward

with the trial. For these reasons, the court will require

defendants to go forward with the trial.

Defendants maintain that the taping had to have been

done by the prosecution team based on the following

factors. First, defendants point out that the taping

29a

occurred in a facility controlled by the federal govern-

ment. Second, the only electronic equipment brought into

the room in which the taping occurred was furnished by

the prosecution team. Third, defendants note a few in-

stances in which government agents seemed to know the

content of conversations conducted in the meeting room

on the 19th floor of the MCC.‘ Finally, the defendants

submit an affidavit from Mr. Barry Cauley, the propri-

etor of a “surveillance detection enterprise,” which states

that Mr. Cauley preliminarily concludes that the manner

in which he thinks the recordings were made, using a

primary system and a backup system, is the way law en-

forcement agents “normally” tape record conversations.

See Cauley Affidavit at para. 16(a).

* At the status hearing on September 5, 1991, defense counsel

described two “coincidental” incidents which he suggested

could show that the FBI was the rnment agency “bugging”

the 19th floor conference room. First, he stated that one day

while meeting in their room on the 19th floor of the MCC, the

attorneys and the in-custody defendants discussed which wit-

nesses the attorneys intended to interview. Then, the ne.:t day

when the defense attorneys went to interview the witnesses,

they found that FBI agents had been there interviewing the

same witnesses just an hour before the defense attorneys ar-

rived. Another “coincidental” incident described by defense

counsel involved the delivery of the proper electronic equip-

ment to the MCC. When the in-custody defendants first re-

ceived the reel-to-reel tape recorder from the FBI to listen to

the tapes which the government will use at trial, the FBI did

not provide speakers. The defense attorneys “yoo the

8 ers, but they were not delivered right away. One day the

attorneys met with the in-custody defe ts on the 19th floor

and stated that they planned to file a motion to compel with

the court in order to get the speakers delivered. The day after

this “threat” was , the speakers were delivered.

30a

The court finds that while all of the aforementioned

factors could be construed as indicating the possibility of

government involvement in the taping, none of the fac-

tors is specific evidence of involvement by the prosecution

team. For example, defendants assert as a fact that the

taping occurred on the 19th floor of the MCC. Although

the court has not heard the tape, for purposes of this

motion, the court will deem counsels’ representations suf-

ficient to establish that the conversation was taped in

the 19th floor conference room. However, even if the tap-

ing did occur at the MCC, that does not prove that the

anyone from the prosecution team taped the defendants.

In other words, even if someone employed by the govern-

ment did tape the defendants, it is not relevant to the in-

stant case unless the government employee is an attor-

ney or agent assigned to this case or unless the contents

of the tapes were communicated to an attorney or agent

assigned to this case.

The other factors defendants contend indicate govern-

ment involvement in the taping are equally inconclusive.

As noted above, defendants point to the fact that the gov-

ernment brought electronic equipment to the conference

room of the MCC, but no one has shown that any of that

equipment was used to make the recordings.° Defense

counsel discussed the aforementioned “coincidences” at

the September 5, 1991 hearings, but they too prove noth-

ing because they could have simply been coincidences.

Finally, the court finds that Mr. Cauley’s affidavit is per-

haps the least weighty factor, because it is based on a

* In fact, defense counsel have argued vigorously that the

equipment brought over by the government could not be used

to record. It could only be used to listen to tapes.

3la

very preliminary investigation and because it does not

even purport to make the conclusion that the prosecution

team perpetrated the taping.

In all the cases cited by defendants and the govern-

ment which analyze Sixth Amendment violations, the

threshold issue of whether there was a government

intrusion was never disputed. Instead, in all of the Sixth

Amendment cases presented to the court, it was conceded

that a government agent intruded upon an attorney-

client conversation or relationship, and the courts then

went on to analyze what, if any, remedy should be im-

posed. Thus, none of the cases relied upon by the parties

even addressed the issue of what quantum of evidence is

necessary to show government intrusion.® However, the

court need not resolve that issue at this juncture be-

cause, as noted above, the court finds that the defen-

dants have not even met the most minimal burden of

proof in this regard.

Moreover, if and when the defendants present evidence

that government agents or attorneys involved in this

case caused the taping or were privy to the tapes, the

court will then have to address the difficult legal ques-

tion of what else, if anything, besides the intentional

intrusion will have to be shown to make a claim of a

Sixth Amendment violation. The Third Circuit, in United

States v. Costanzo, 740 F.2d 251, 254 (3d Cir. 1984), held

that the Sixth Amendment is violated “when the govern-

ment (1) intentionally plants an informer in the defense

® However, the First Circuit in United States v. Mastroianni,

749 F.2d 900, 907-08 (1st Cir. 1984), held that the defendant

has the initial burden of showing that confidential communica-

tions were conveyed to the prosecution.

a _—

32a

camp; [or] (2) when confidential defense strategy infor-

mation is disclosed to the prosecution by a government

informer . . . Similarly, in Briggs v. Goodwin, 698 F.2d

486, 493 n.22 (D.C. Cir. 1983), the D.C. Circuit Court

stated, that “[a] deliberate attempt by the government to

obtain defense strategy information or to otherwise inter-

fere with the attorney-client relationship through the use

of an undercover agent may constitute a per se violation

of the Sixth Amendment.”

However, as the D.C. Circuit noted in United States v.

Kelly, 790 F.2d 130, 137 n.5 (D.C. Cir. 1986), the Sixth

and Eighth Circuits have held that “an intentional in-

trusion alone does not establish a [Sixth Amendment]

violation, unless there is communication of confidential

information or some other form of prejudice.” Jd., citing,

United States v. Singer, 735 F.2d 228, 234 (8th Cir. 1986)

and United States v. Steele, 727 F.2d 580, 586 (6th Cir.

1984). The Ninth Circuit has also taken the position that

a showing of intentional government intrusion alone is

not sufficient to make out a claim of a Sixth Amendment

violation and that a defendant must show that the gov-

ernment used the ill-gotten information against the de-

fendant to his detriment. See United States v. Irwin, 612

F.2d 1182, 1186-87 (9th Cir. 1980).

In United States v. Mastroianni, 749 F.2d 900, 907-08

(Ist Cir. 1984), the First Circuit took a middle position

and held that “the defendant must prove that confiden-

tial communications were conveyed as a result of the

presence of a government informant . .. Upon such proof,

the burden shifts to the government to show that there

has been and there will be no prejudice to the defendants

as a result of these communications.” .

33a

The Seventh Circuit has not yet spoken on this issue.

While this court is inclined to follow the majority of cir-

cuits which have indicated that something beyond an

intentional intrusion is necessary to make out a Sixth

Amendment claim, the court does not so decide at this

time because, as noted above, the defendants have not

even made a showing of intentional intrusion by the gov-

ernment at this point. Furthermore, the court notes that

even if a Sixth Amendment violation is eventually

shown, indictment dismissal may not be the remedy

imposed. See United States v. Morrison, 449 U.S. 361

(1981).

Conclusion

For the aforementioned reasons, the court denies de-

fendants’ motion to postpone the trial until after the in-

vestigations into the taping are completed. The govern-

ment has submitted affidavits stating that no govern-

ment attorneys or agents assigned to this case taped the

privileged conversations or have heard the tapes of the

conversations. The defendants have submitted no evi-

dence to dispute these affidavits. Therefore, the trial may

proceed, anc. if and when the defendants have sufficient

evidence to submit a motion to dismiss, or to suppress,

the court will then take the appropriate action including,

if necessary, adjourning the trial to hold a hearing.

ENTER:

Ann Claire Williams, Judge

United States District Court

Dated: SEP 25, 1991

34a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

v.

ERNEST R. INFELISE, et al.,

Defendants.

)

) No. 97 CR 87 (ALL)

) Honorable

) Ann C. Williams

) [R. 822]

AFFIDAVIT

BARRY CAULEY, being first duly sworn, deposes and

upon his oath as follows:

1. Iam the co-proprietor of a CounterCom, an elec-

tronic surveillance and surveillance detection enterprise

of Dallas, Texas.

2. Prior to my work at CounterCom, I was the Secur-

ity Director of Gearhart Industries of Fort Worth, Texas.

Prior to that, I was the Chief Criminal Investigator for

Region VII of the GSA-Federal Protective Services. Prior

to my position as Chief Criminal Investigator, I served as

Chief Electronics Systems Manager for the GSA-Federal

Protective Services. Prior to my work in federal law en-

forcement, I was a criminal investigator with the Dallas,

Texas Police Department.

3. In all, I have nineteen years experience in law en-

forcement in the area of electronic surveillance.

4. Iwas retained by the defendants in this cause to

perform an analysis of the electronic surveillance of sur-

reptitiously recorded conversations ini the attorney-client

conference room of the nineteenth floor of the Metropoli-

tan Correctional Center-Chicago. |

35a

5. In connection with my duties, I have listened to

two tapes of the recorded conversations of lawyers and

defendants in this case and made aural notations.

6. I have examined the target room, the adjoining

day room, mezzanine offices immediately above the tar-

get room and photographed same.

7. I have analyzed the duct work, including the air-

conditioning and cold air feeds, into the target room and

the mezzanine offices above the target room.

8. Ihave examined the structural building materials

of all walls of the target room and analyzed same.

9. Ihave examined the exterior windows of the tar-

get room and analyzed same.

10. I looked for and noted the locations of various

telephones.

11. I did a full electronic sweep of the target room.

12. I took measurements of the target room and con-

ducted sound measurements.

13. I conducted tests of voices and ambient noises in

and about the target room.

14. I noted the presence of recently installed bars on

the doors of the mezzanine offices above the target room,

including the presence of saw dust on the floor at the

feet of the doors.

15. Upon my return to my Dallas laboratory, I intend

to do a digital analysis of both the test tapes and the

surreptitiously recorded tapes. This digital analysis

ought to be accomplished within twenty-one (21) days.

16. Iam able to state certain preliminary conclusions:

a. At least two systems were installed to record,

36a

surreptitiously, attorney-client conversations. It is nor-

mal for trained law enforcement eavesdroppers to use

two systems, one acting as a backup.

b. The recordings and, therefore, the bugging de-

vices did not come from outside the building (MCC) or

from inside the target room. Rather, they were produced

from within the building but outside the target room;

most likely from the mezzanine offices above the target

room using the air-conditioning duct.

c. Neither prisoners nor visiting attorneys could

have installed the materials to make such recordings.

d. Some person or persons with access to the

locked mezzanine offices above the target room made

these recordings. I was told by MCC staff that these

offices are locked and that only six keys exist.

e. The surveillance in question was a concerted

attack on the target room. The individuals who installed

the devices possessed skill, knowledge and expertise in

the area of the installation of bugging devices.

f. It would have been with some difficulty and

some considerable training to set up at least two record-

ing devices in this location to overhear the attorney-

client conversations.

17. FURTHER AFFIANT SAYETH NOT.

BARRY CAULEY

SUBSCRIBED AND SWORN to before me

this 19th day of , 1991.

NOTARY PUBLIC

—_eeeeaaa

37a

CounterCom

A Division of EPS, Inc.

12115 Self Plaza

September 23, 1991 Suite 200

Dallas, Texas 75218

Mr. Patrick A. Tuite (214) 327-9055

Patrick A. Tuite, Ltd. Attorneys

105 W. Adams St., 31st Floor

Chicago, IL 60603

RE: Acoustical Investigation

Metropolitan Corrections Center

Chicago, II.

Dear Sir:

On September 18, 1991, David Logan and I, the under-

signed, traveled to Chicago from Dallas to perform a

technical investigation for which you contracted. This

report is an interim report describing what service was

performed and our conclusions based on those initial

tests and observations.

On our arrival at your office Mr. Logan and I was briefed

on the existing situation to wit the possession of cassette

tapes of recorded conversations being held between sev-

eral attorneys and their clients. These conversations took

place on or about May 20, 1991, between the hours of

5:00 P.M. and 7:30 P.M. in an area designated as an

attorney/client conference area. The room is located di-

rectly adjacent to the elevator lobby on the 19th floor of

the MCC, Chicago.

Mr. Logan and I listened to the two recovered tape re-

cordings and made notes describing sounds and voices re-

corded on those tapes. Some items became very appar-

38a

ent. Both tapes had high levels of noise, which may be

described as a “ramble” or “roaring” noise. The signal to

noise ratio, or the ratio of voice level to background

levels, was fairly good on one recording and quite poor on

the second recording. The two tapes were basically of the

same conversation with one tape starting approximately

eight minutes later than the first tape.

We noted the sounds of two different telephone rings,

some “squeaking” sounds and some other unidentifiable

sounds. However, the predominant sound, excepting the

voices recovered, was the rumbling sounds. Mr. Logan

and I, both having extensive experience in monitoring

and recording conversations, immediately agreed that

this sound was probably the result of having a micro-

phone very close to or inside an air duct or that the am-

bient noise level in the conference room was very high

due to mechanical devices such as generators. We be-

lieved at that time that the probable cause of the noise

was microphone placement in the immediate vicinity of

the air duct due to the distinctive sound. This type of

audio surveillance is relatively easy, commonly used and

effective. However, it is rather unusual to place the

microphone in an HVAC feed duct. Most surveillance

technicians prefer to place the microphone in the air

return system. The movement of air in large volumes

will create the type of problem we are listening to on the

tapes.

On September 19 we went to the MCC facility where a

physical inspection was performed with the intent of

locating any existing listening devices and to determine,

if possible, where and how the recordings could have

taken place. We were met at the facility by the Warden

and by Bureau of Prisons personnel, Lt. Buddy Adels-

39a

berger and Criminal Investigator C.H. Mildner III. These

two officers accompanied us on our survey. We were also

accompanied by Mr. John Mahr of the Joseph Mahr In-

vestigative Agency of Chicago.

Description of the entry and conference room:

The target room is located on the 19th floor of the MCC

facility. Access to the room is via the entry control

portals located on the first floor. All coats and articles

must be locked prior to entering the facility. Additionally,

magnetometers leading to the elevators preclude un-

authorized equipment from passing this portal. It is

totally inconceivable that anyone from the outside could

surreptitiously introduce a microphone and tape recorder

into this building without official sanction.

The visitor enters the elevator, via a man-trap booth,

entry to the various floors are controlled from a remote

location.

As you exit the elevator on the 19th floor the conference

room is located directly in front of you with only one

access portal which is fully controlled by BOP personnel.

Upon entering the conference room another door, on the

east wall is evident. This door leads to another man-trap

and prisoner isolation room.

The room is approximately 15'4” by 2'4" (Drawing A).

The walls are constructed of concrete cinder block and

the floors and ceilings are constructed of poured rein-

forced concrete. There are windows on the west, south,

and east walls covered by heavy metal bar approximately

1/2" by 1/2". The windows are very dirty and although we

had no instrument to measure light transmittance we

suspect the windows are glazed and tinted.

40a

As you exit the elevator on the 19th floor the conference

room is located directly in front of you with only one

access portal which is fully controlled by BOP personnel.

Upon entering the conference room another door, on the

east wall is evident. This door leads to another man-trap

and prisoner isolation room.

The ceiling cover was an acoustical tile type of material

glued to the concrete. There was no air space between

the tile and the ceiling structure. All wiring for the

lights, electrical outlets, fire alarm sensor and junction

boxes was surface mounted and in wiremold. The only

exception to this was in the A/C air plenum and located

on the west wall and ceiling. There were seven (7) junc-

tion boxes installed in the plenum and located along the

length of the room with cover plates installed. These

junction boxes apparently served as lighting outlets at

some other time.

The floors are covered by linoleum type of tile glued to

the floor. There was nothing significant about the floor-

ing nor the manner of installation.

Lt. Adelsberger stated that the floors above and below

the 19th floor were all the same.

There were three acoustical access paths leading from

the conference area into horizontally adjacent areas. The

first was the HVAC return path, located on the cast wall.

This is nothing more than a metal grate installed in that

wall under a window. The opposite side of the grate

opens into the prisoner Day Room behind the floor offi-

cers desk. The second and third openings noted were on

the north wall. One of these openings, was approximately

24" by 24” and is installed to service the HVAC riser

ducts immediately behind the north wall and the plumb-

4la

ing in that area. The second opening was a smaller door,

approximately 14" by 14", located next to the west wall,

which would allow service personnel to control water ser-

vice. There were no access ports or acoustical paths lead-

ing to the floor below.

The only acoustical path we found which leads vertically

is via the air conditioner vents installed in an air plenum

located on the west wall and ceiling. The plenum and air

outlets extend the entire length of the room.

Overall, the room is hard from an acoustical viewpoint

which means that recordings would exhibit some echo

effect and makes possible the recovery of conversations

at some distance further than room with softening qual-

ities such as drapes, carpet or clever sound absorbing

material. The only sound absorbing material in the room

was the ceiling tile and several boxes and cartons located

in the room. Ceiling tile installed in this way is not very

effective for reducing sound levels as it needs some air-

space above the tile for normal use.

Observations and Tests performed:

Because it is obvious that the recordings were illegal by

their very nature, we were looking for an acoustical path

that would, when monitored or recorded, produce the

same type and levels of sound we had aurally examined

the day before, and allow some degree of privacy or isola-

tion from the inmates and guards. Our preliminary tests

used an electret microphone, audio amplifier and head-

phones.

As We moved about the conference area listening to the

ambient sounds of the room and conversations we noted

a total lack of any rumbling or roaring sounds anywhere

except when the microphone was placed next to or in the

42a

air condition feed vents located on the west wall. Neither

did we recover similar sounds when the microphone was

placed in direct contact with the walls, windows or floor-

ing. The ambient noise level of the room was very low

and we could not detect any mechanical noise of any type

either with the unaided ear or with the microphone/

amplifier combination.

It was obvious to us at the time that an illegal surveil-

lance could not take place in any horizontal direction

using any wired microphone technique. The cinder block

construction is very hard to penetrate, would take a lot

of time, and there was no place to perform this activity

which would not be in direct view of the guards and in-

mates. We eliminated the floor for attack because there

was no acoustical path found to the 18th floor and be-

cause the same visual problems would exist on that floor.

The only possible location within the building for attack

was the acoustical path via the HVAC duct located on

the west wall.

We went to the BOP staff offices directly above the con-

ference room. Entry to the offices was through the man-

trap system located on the east wall, into the prisoner,

day room, up one flight of stairs and into three locked

offices. We did not see any other ingress or egress portals

in this prisoner area. We searched these areas for active

monitoring devices and found none.

We immediately noticed the floor vents and suspected

that the air duct serviced both the conference area and

the staff offices. The vents, approximately 6" by 35", are

installed over the duct system and are removed by sim-

ply lifting the vent covers. There are no retaining screws

or other mechanical devices to secure the vents to the

floor plenum.

43a

When we removed the floor vent covers we observed the

air duct below the vent and verified this was the same

air space as the conference room. When we placed a

sound source in the conference room and listened in the

rooms upstairs we were able to recover the sound source

aurally. A microphone placed in that air duct as de-

scribed in Drawing B recovered room audio from the con-

ference room with the amplified sounds being very simi-

lar, and effectively identical to the unaided ear, as those

sounds on the recovered tapes.

Mr. Mahr also listened to the recovered sounds for wit-

ness purpose. The officers would not listen to the recov-

ered sounds for verification.

We took a test recording sample with a portable tape re-

corder and on playback again the levels, types of sounds

and other characteristics were very close to the record-

ings we had examined the previous day.

We went to the three rooms and found that rooms 2031

and 2030 produced sound levels more consistent with the

examined tapes. Room 2030 produced more favorable re-

sults, however, this conclusion is very tentative since we

were using our memory to compare the sounds of the re-

covered tapes.

We searched the air duct visually for evidence of previ-

ous monitoring activity. We found nothing substantial

except that in Room 2031 the felt insulation covering the

air duct had been pulled back about 5" from the south-

west top corner of the duct. The glue directly below the

felt was dirty and the “damage” was relatively old. There

was a cleaned area, about the size of a quarter, directly

below the felt which could have been used for a “contact”

(as opposed to acoustical) type of microphone.

44a

Conclusions:

Although tentative and somewhat speculative, we believe

the recordings took place from within the staff office

space directly above the conference area. This is the only

area of the building wh:ch faithfully reproduced the

sounds recorded on the recovered tapes.

Additionally, this is the only area we found in which any

privacy could be found by an eavesdropper and is out of

view or access to inmates and/or guard personnel. This

conclusion does, however, iz >act the integrity of some

BOP personnel since only six keys exist for the offices

(per Mr. Mildner) and anyone entering the c‘fice areas

would require a key for entry.

We noted that security bars were being installed on the

air return grates in the doors to these offices. I asked

Mr. Mildner the purpose and he stated there had been

some burglaries of the offices in which some stamps were

stolen with entry via the air return grates.

We do not believe there is any possibility of the defen-

dant’s attorneys recording the conversations. First, there

is no conceivable way in which a tape recorder could be

smuggled past the entry system. Second, it would not

seem possible that any person in the conference area

could place a recorder anywhere in the room and cause

the “rumbling and roaring” sounds recorded on the re-

covered tapes. This would require someone to physically

hold a recorder next to the air vents for the entire con-

versation in total view of inmates and guards.

Additionally, when we listened to the tapes we noted at

the very start of the tape recording some sounds, and

possible breathing, that are highly consistent with a

microphone being handled and placed in the vent after

45a

the conversations had started in the conference area. We

believe that person or persons unknown was actually in-

stalling the recording system after the meeting was

started. This would seem to narrow any suspect list to

persons on the 19th floor at approximately 5:00 P.M.,

May 20, 1991.

Although the recovered tapes effectively covered the

same meeting they are not identical in quality. One tape

was very poor quality with a signal to noise ratio which

is very low and borders on the unintelligible. The second

tape is of much better quality with an intelligible recov-

ery. We suspect that two recording systems were used

simultaneously. This suspicion is further bolstered by an

apparent difference in AGC (Automatic Gain Control)

activity on the two tapes.

An AGC circuit is common to all tape recorders. Its pur-

pose is to control the level of sound being recorded. An

AGC circuit attempts to electronically level all sounds to

the recording medium. When a person speaks the AGC

will tend to lower background noise and when the person

stops speaking the background noise will gradually in-

crease to a higher level. The “attack time”, or the time

span of changing levels, of two recordings appear to my

unaided ear to be different. This would again indicate

two separate recording systems.

The time loss of eight minutes between the two tapes

seems to suggest a scenario whereby an eavesdropper

places one system for recovery and then, according to

training, may place a second backup system thereby

missing some of the conversation due to the time it takes

to install the second system. This is common practice for

professional eavesdroppers and law enforcement person-

nel trained in electronic surveillance.

46a

There is another possible answer to the dlifference in

quality of the two tapes. It is entirely possible that the

poor quality tape was the original and only tape record-

ing, and that the second better quality tape iis an edited,

filtered and electronically enhanced copy of the first tape.

Since we do not know what generation of copy was sent

to the attorneys, nor what duplication process or editing

system was used on the original, we can only speculate.

The last preliminary conclusion regards the technical

ability of the eavesdropper. We believe that a person

with more than average skill in audio recovery tech-

niques recovered and recorded the attorney/client con-

versations. Acoustics and the recovery of same is not well

understood by laymen and the use of the aiir feed vent

suggests a rather in-depth knowledge of this technique.

If a second recorder was used, or if the tapes were elec-

tronically enhanced, this again suggests significantly

greater knowledge of these techniques than tthe average

eavesdropper possesses. It does suggest technical train-

ing such as that given to law enforcement personnel.

We are unable to be more specific, or more conclusive,

without extensive electronic examination of the recovered

tapes. If you require more exacting evidence I suggest

that the tapes be subjected to electronic examination by

a qualified laboratory or technical staff.

We sincerely appreciate your business and we look for-

ward to serving you again.

Respectfully,

Barry E. Cauley

47a

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[Dated September 24, 1992]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

v. ) Case No. 90 CR 87

) [R. 1482]

— ERNEST INFELISE, )

et al. )

MEMORANDUM OPINION AND ORDER

Pursuant to Fed. R. Crim. P. 12, 16, 29, 33 and 34, and

18 U.S.C. § 2150, et seg., defendants filed a post-trial

motion to dismiss the indictment in this case, or for an

evidentiary hearing on the motion to dismiss, based on

the government’s alleged taping of attorney-client con-

versations at the Metropolitan Correctional Center

(MCC). The court denies the defendants’ motion for the

following reasons.

Discussion

Defendants contend that the indictment in this case

should be dismissed because the government violated

their Sixth Amendment rights by taping confidential

attorney client conversations while the defendants were

in pre-trial custody at the MCC.' The court set forth the

* Ina footnote in their brief, the defendants also allude to pos-

sible Fourth and Fifth Amendment violations. The reasoning

behind these allegations was not explained by the defendants.

(continued...)

50a

factual background behind this motion in a Memoran-

dum Opinion and Order dated September 25, 1991, and

those facts will not be repeated here.

In the September 25, 1991 Memorandum Opinion and

Order the court also explained the legal requirements for

establishing, a Sixth Amendment violation based on gov-

ernment intrusion. While the Seventh Circuit has not yet

addressed the issue, the court noted the standards

adopted by other circuits when considering possible Sixth

Amendment violations. The court explained that the

Third and D.C. Circuits require an intentional intrusion

by the government,” while the Eighth and Sixth Circuits

require intentional intrusion, and the use of the confi-

dential information to the defendant's detriment by the

government, before they will recognize a Sixth Amend-

' (...continued)

Nonetheless, the court rejects the Fourth and Fifth Amend-

ment arguments for the same reason that it rejects defen-

dants’ Sixth Amendment argument, namely that the defen-

dants do not have any evidence that the government prosecu-

tion team was involved in the MCC taping.

* See Memorandum Opinion and Order, September 25, 1991,

pp. 12-14. United States v. Costanza, 740 F.2d 251, 254 (3d.

Cir. 1984) (holding that the Sixth Amendment is violated

“when the government (1) intentionally plants an informer in

the defense camp; [or] (2) when confidential defense, strategy

information is disclosed to the prosecution team by a govern-

ment informer. . . .”); see also, Briggs v. Goodwin, 698 F.2d

486, 493 n.22 (D.C. Cir. 1983) (Noting that “(a] deliberate

attempt by the government to obtain d strategy informa-

tion or to otherwise interfere with the attorney-client relation-

ship through the use of an undercover agent may constitute a

per se violation of the Sixth Amendment”).

5la

ment violation.’ In contrast, in the First Circuit the

Sixth Amendment is violated when confidential informa-

tion is conveyed as a result of the presence of a govern-

ment informant.‘

The court noted that while the standards for a Sixth

Amendment violation varied, at a minimum, all required

some level of government intrusion. In the instant case,

the court found that the defendants were not entitled to

a hearing, or any other relief with respect to the taping

until they made a minimal showing that the “prosecution

team (i.e. the agents or attorneys in this case)” either

“participated or benefitted in any way from the taping of

defense counsel and their clients.” The court found that

the evidence proffered by the defendants at that time did

not meet this burden. (See Memorandum Opinion and

Order, September 25, 1991, pp. 4, 9, 11, 12). Finally, the

court noted that the government prosecution team had

submitted affidavits stating that no government attor-

neys or agents associated to this case taped the privi-

leged conversations or had heard the tapes of the conver-

sations, and that the defendants had submitted no evi-

3 United States v. Singer, 785 F.2d 228, 234 (8th Cir. 1986),

and United States v. Steele, 727 F.2d 580, 586 (6th Cir. 1984)

(“An intentional intrusion alone does not establish a [Sixth

Amendment] violation, unless there is some communication of

confidential information of some other form of prejudice.”). The

Ninth Circuit has also taken the position that a showing of

intentional government intrusion alone is not sufficient to

make out a claim of a Sixth Amendment violation. The defen-

dant must show that the a agen used the illgotten in-

formation against the defendant to his detriment. United

States v. Irwin, 6 612 F.2d 1182, 1186-87 (9th Cir. 1980).

* United States v. Mastroianni, 749 F.2d 900, 907-08 (1st Cir.

1984).

52a

dence to dispute these affidavits. (Memorandum Opinion

and Order, September 25, p. 15). Given these facts, there

was no minimal showing of government intrusion, and

the defendants’ motion for a hearing was denied.

The court now denies the defendants’ motion to dismiss

the indictment because the defendants still have no evi-

dence of government intrusion. Moreover, the defendants

do not have evidence which justifies even an evidentiary

hearing on their motion to dismiss. The defendants offer

nothing new in their motion to dismiss the indictment.

They repeat arguments raised in an earlier motion to

delay the trial on the basis of the MCC tapes, but still

present no evidence that anyone connected with the

prosecution team had anything to do with the taping at

the MCC.

Initially the defendants argue, quite generally, that

they are entitled to indictment dismissal or an evidentia-

ry hearing because of government intrusion in their

attorney-client conversations. Defendants’ brief cites a

number of cases which analyze Sixth Amendment viola-

tions, and many of those cases hold that a government

intrusion in the attorney-client relationship, through tap-

ing or otherwise, can result in a Sixth Amendment vio-

lation. Those cases have little bearing on this discussion,

however, because in the cited cases the threshold issue

of whether there was a government intrusion was never

disputed.°

In defendants’ cases, it was conceded that a govern-

ment agent intruded upon an attorney-client conversa-

° See e.g., Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477

(1985); United States v. Seale, 461 F.2d 346, 364-66 (7th Cir.

1972); United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976).

53a

tion or relationship, and the courts then considered what,

if any, remedy, should be imposed. As is explained below,

in the instant case, the defendants never meet the first

step, namely showing the existence of government in-

trusion.

The defendants argue that they have made out a prima

facie case of government intrusion in their attorney

client relationships, and consequently violation of their

Fourth, Fifth and Sixth Amendment rights. The court re-

jects this argument because a review of the facts indi-

cates that the defendants’ case against the government

is based on inference. The gist of defendants’ argument

is, as it has always been, that because the taping oc-

curred in a building that is controlled by the Govern-

ment, the Government must be responsible for the tap-

ing.® The court has already stated that the coincidences

and defendants’ speculation proves nothing. While all of

the aforementioned factors could be construed as indicat-

ing the possibility of Government involvement in the tap-

ing, none of the facts is specific evidence, of involvement

® Defendants note that the metal detectors would prevent

defense counsel, or other outsiders, from bringing any taping

equipment into the MCC. Defendants also assert that MCC

personnel had access and opportunity to bug, the defendants’

meeting room, and that the only electronic equipment brought

into the room in which the taping occurred was furnished by

the prosecution team. Defense counsel previously pointed out,

however, that the equipment brought over by the government

could only be used to listen to tapes, and that it could not be

used to record. Defense counsel also points to a number of

coincidences which they argue chow that the government was

aware of conversations which took place in defense counsel’s

preparation room.

54a

of the prosecution team.’ In sum, the defendants’ brief -

raises the same points that were raised and rejected, in

defendants’ motion to postpone the trial. See September

25, 1991, Memorandum Opinion, pp. 11-12. These argu-

ments are no more persuasive this time around.

Defendants contend that the importance of this case

gave the government a motive to tape the defendants.

The defendants contend that the government taped the

defendants because it did not want to risk losing the

Infelise case. The defendant notes that the government

is unable to explain the taping. This argument is unper-

suasive. As the government reasons, the principal parties

that would benefit from the taping are the defendants,

who might obtain dismissal of the indictment based on

alleged Government misconduct. Further, since the tap-

ing has not been linked to the government, or the pros-

ecution team by any evidence, the government does not

have the burden of explaining the taping.®

" As the court explained:

{E}ven if the taping did occur at the MCC, that does not

ee that anyone the prosecution team taped the de-

endants. in other words, even if someone employed by the

government did tape the defendants, it is not relevant to

this case unless the government employee is an attorney

or an agent assigned to this case or unless the contents of

the tapes were communicated to an attorney assigned to

this case.

Memorandum Opinion and Order, September 25, 1991, p. 11.

* As previously noted, United States v. Mastroianni, 749 F.2d

900, 907-08 (1st Cir, 1984), held that the defendant has the

initial burden of showing that confidential communications

were conveyed to the prosecution.

55a

Relying on cases which are not on point, the defen-

dants suggest that they do not have a burden of produc-

tion in this matter. They contend that they have made a

threshold showing of government interference sufficient

to place the burden of proving the government’s inno-

cence on the government. The court rejects this argu-

ment. First, at least one circuit has noted that in order

to show a Sixth Amendment violation, the defendant has

the burden of showing that confidential communications

were communicated to the prosecution, United States v.

Mastroianni, 749 F.2d 900, 907-08 (1st Cir. 1984), so de-

fendants’ threshold showing argument is not persuasive.

Second, while the court is unaware of any Sixth

Amendment cases which address the question of what

quantum of evidence is necessary to show government

intrusion, they all show that there must be some mini-

mal showing of government intrusion before the court

can act. Despite their arguments to the contrary, the de-

fendants in this case have not made a threshold showing

of government involvement in the taping. The defen-

dants, in fact, have presented nothing but inference and

speculation regarding the government’s involvement in

the alleged taping, which is not enough to place any bur-

den on the government. Because the defendants have not

produced any evidence to make even a minimal showing

that the prosecution team was involved in taping the

defendants, defendants’ motion to dismiss the indictment

is denied, and the defendants’ motion for an evidentiary

hearing is denied for the same reason.

Relying on the principles of disclosure stated in Giglio

v. United States, 405 U.S. at 154, defendants contend

that if it is clear that the Justice Dep’t acted in a feloni-

ous manner, there is no need to show that the prosecu-

56a

tion team benefitted from their illegal acts. See also,

United States ex rel. Smith v. Fairman, 769 F.2d 396,

391 (1985). Defendants contend that if anyone from the

government illegally taped them, they are entitled to

indictment dismissal, or at the very least, an evidentiary

hearing.

The court rejects this argument. The cited disclosure

principals relate to the disclosure of Giglio material, and

are not relevant to this discussion, which focuses on the

Sixth Amendment. After review of the applicable case

law, this court correctly determined that for defendant’s

Sixth Amendment rights to have been violated by a gov-

ernment intrusion, someone connected to the prosecution

team must have been involved in, or learned the contents

of the tapes. Defendant’s arguments to the contrary are

not persuasive.

Further, even if the principals announced in Giglio

were relevant to a Sixth Amendment analysis, defen-

dants have not presented a compelling argument because

there is no evidence that anyone connected with the

government was involved in, or knew about the taping.

Again, defendants’ arguments for indictment dismissal or

an evidentiary hearing are rejected, and their motion is

denied.

Finally, the court has reviewed the FBI’s report on the

alleged taping at the MCC, and the FBI’s findings are in-

conclusive.* The report indicates that the FBI does not

® The court notes that the FBI’s findings are still incomplete,

since the bureau has not interviewed the defendants about the

tapes. The Bureau will not be able to interview the defendants

until after they are sentenced. After the FBI completes their

(continued...)

57a

have any leads, or evidence regarding who was responsi-

ble for the alleged taping. As was noted above, the FBI’s

findings to date are inconclusive, and the report does not

contain any evidence that is favorable to the defense or

the prosecution.

Conclusion

For the foregoing reasons, the defendants’ motion for

dismissal of the indictment or an evidentiary hearing are

denied.

ENTER:

Ann Claire Williams, Judge

United States District Court

Dated: SEP 24 1992

° (...continued)

report, the court will again review their findings, and the de-

fendants can file another motion to dismiss the indictment.

58a

[R. 2009]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: 90 CR 87* Date: February 23, 1994

Name of Assigned Judge: Ann Claire Williams

Case Title: USA v. Infelise/Marino/DeLaurentis/Bellavia/

Aleman

*x** * *K *

DOCKET ENTRY:

* * * K *

(5) & Status hearing & set for 02 MAR 94 at 9:30 A.M.

exe KE

(10) & (Other docket entry] “(this order concerns defen-

dants 1,2,3,4,12). The Federal Bureau of Investigation

has concluded its investigation into the alleged bugging

of conversations between Infelise defendants and their

attorneys. The investigation was inconclusive.

**e ke *

59a

[R. 2032]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: 90 CR 87* Date: May 12, 1994

Name of Assigned Judge: Ann Claire Williams

Case Title: United States v. Infelise

* * * * *

DOCKET ENTRY:

* * kk &

(10) & [Other docket entry] *(this order concerns de-

fendant #1) Pursuant to order entered April 21, 1994 de-

fendant’s motion to release justice department report is

denied. [1862]

* * * *K *