# Petition for Writ of Certiorari — DiDomenico v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1340%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 1006 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1340%3A1. Public record. Not legal advice.