Petition for Writ of Certiorari — Infelise v. United States

7, Court, U.S,

éP ee ste ye

9918 66 May 22000

No. OFFICE OF THE CLERK

In the

Supreme Court of the Gnited States

ROCCO ERNEST INFELISE,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

7

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.

Counsel of Record

2000 N. Clifton Avenue

Chicago, Illinois 60614

(312) 332-2891

Attorney for Petitioner

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

ee

i

QUESTIONS PRESENTED

1. Certiorari should be granted, the judgment below

vacated and the case remanded because the district

court’s procedural bar § 2255 rejection conflicts with

the Court’s 28 U.S.C. § 2253(c) Certificate of Appeal-

ability analysis in Slack v. McDaniel, 529 US. __, 120

S.Ct. ___ (No. 98-6322; April 26, 2000).

(a) Certiorari should be granted because the court

below did not have the benefit of the Court’s interven-

ing “contrary to” or “unreasonable application of” hold-

ing in Williams v. Taylor, 529 U.S. __, 120 S.Ct. 1495

(2000) (O’Connor, J.).

2. Whether, in light of settled Supreme Court prece-

dent, the failure to hold an evidentiary hearing on peti-

tioner’s Sixth Amendment assertions that the govern-

ment intentionally intruded on his attorney-client pre-

trial preparation conversations, rises to the level of a

miscarriage of justice?

(a) Whether review should be granted to resolve the

circuit split regarding if there is per se prejudice where

[a] petitioner presents credible evidence that the gov-

ernment purposefully intruded into pretrial attorney-

client preparation-communications?

li :

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ................. ‘

TABLE OF CONTENTS ..........ccceeeeeee ii

TABLE OF AUTHORITIES ..............-. iii

oppacesenee..... 66. e.. 1

FUBIMMACTMN .. 5 kk aoe 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .............-. 2

erate... 3

REASONS FOR GRANTING THE WRIT ...... 13

COMCLIMONN | occa nc eee 23

RPP. 00.4446 465 koe eee infra

So a AP RD. Ye Ai er eee

ili

TABLE OF AUTHORITIES

Cases PAGE(S)

Alderman, et al. v. United States,

394 U.S. 165, 89 S.Ct. 961 (1969) ......... 18

Black v. United States, 385 U.S. 26,

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) ......... 21

Coplon v. United States, 191 F.2d 749

IE I i a kl Wg a dO dew 21

Cutillo v. Cinelli, 485 U.S. 1037,

Re: rr 20

Glasser v. United States, 315 U.S. 60,

igs i vk o ca ed Owes ee 21

Kolod v. United States, 390 U.S. 136,

en WE OE gc sc Cae ew he eawe we 19

Maine v. Moulton, 474 U.S. 159,

ER ce ek 16, 17

Murphy v. Waterfront Com’n of New York

Harbor, 378 U.S. 52, 84 S.Ct. 1594

re a dia ed ig le te gah 22

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

Dr Wee. LEGS (2067)... won cc cnn 17, 18, 21

iv

Shillinger v. Haworth, 70 F.3d 1132

Se 0 Ne re Ore rer 20

“Slack v. McDaniel, 529 U.S. __, 120 S.Ct. __

(No. 98-6322; April 26, 2000)...... i 13, 14, 15

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

De es Se CO 8 ch SCA ee a i 16

Tuite, et al. v. Henry, et al., 98 F.3d 1411

Cees Ga Sn ol ware Oa ee 11, 12, 14

United States v. Coplon, 185 F.2d 629

ere ore re ree 19, 22

United States v. Costanzo, 740 F.2d 251

(3rd Cir. 1984), cert. denied, 472 U.S.

SOR? Ce «kb 5 4K s ee ek ee 20

United States v. Davis, 646 F.2d 1298

rn Ta. See bk 5 8% aera eee ee 21

United States v. DiDomenico, et al., 78 F. 3d

294 (7th Cir. 1996), cert. denied,

GES US SR Cee «ks 6 6 ae eee 22

United States v. Glover, 596 F.2d 857

(9th Cir. 1979), cert. denied, 444 U.S.

S67 and 444 U.S. GG0 (ISTO)... 6 wk cc we cee 21

United States v. Goldstein, 120 F.2d 485

Clue Gt: SG kee a he bee cake eee 22

United States v. Levy, 577 F.2d 200

Carl GAR, Sree cnc cee vee ee eee 20

Vv

United States v. Mastroianni, 749 F.2d

eee See Gs Ek ob de hae hws ha ee 21

United States v. Morales, 635 F.2d 177

SS eb ck S ha eee es 21

United States v. Morrison, 449 U.S. 361

SEE 8S Ra eee ee eee ee 18

United States v. Steele, 727 F.2d 580

(6th Cir. 1984), cert. denied,

Re Se Be CD knoe A cee As vce 21

Williams v. Taylor, 529 U.S. __,

120 S.Ct. 1495 (2000) .............. i, 13, 15

Constitution, Statutes and Rules

United States Constitution, Fifth Amendment .... 2

United States Constitution, Sixth Amendment ... 2

De Sree oo eo ks es be eee ee 1

ee eee 2

oe S| Se errr rire 2,3

1

To the Honorable Chief Justice and the Associate

Justices of the Supreme Court.

Petitioner Rocco E. Infelise (petitioner) respectfully

prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the

Seventh Circuit entered on March 1, 2000.

OPINIONS BELOW

The memorandum order of the United States Court of

Appeals for the Seventh Circuit, denying petitioner's

request for a Certificate of Appealability (hereafter

COA), was filed on March 1, 2000 (App. 1-2, infra). The

district court’s unpublished opinion and judgment

denying relief pursuant to 28 U.S.C. § 2255 was filed on

January 5, 1999, and is reproduced at App. 3-22, infra.

The district court’s order denying petitioner's COA

request was filed on February 8, 1999 (App. 23-25,

infra).

JURISDICTION

The memorandum order denying petitioner’s request

for a COA was issued by a panel of the United States

Court of Appeals for the Seventh Circuit on March 1,

2000 (App. 1-2, infra). No petition for rehearing was

submitted. This petition for writ of certiorari follows

within ninety days, and this Court has jurisdiction pur-

suant to 28 U.S.C. § 1254(1).

2

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:

In all criminal prosecutions, the accused shall

... have the Assistance of Counsel for his de-

fense.

28 U.S.C. § 2253, in pertinent part, provides:

§ 2253. Appeal

(a) In a habeas corpus proceeding or a proceed-

ing under section 2255 before a district judge,

the final order shall he subject to review, on

appeal, by the court of appeals for the circuit in

which the proceeding is held.

(c(1) Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not

be taken to the court of appeals from—

(A) the final order in a habeas corpus proceed-

ing in which the detention complained of arises

out of process issued by a State court; or...

(2) A certificate of appealability may issue un-

der paragraph (1) only if the applicant has

made a substantial showing of the denial of a

constitutional right...

18 U.S.C. § 2515 states:

Whenever any wire or oral communication has

been intercepted, no part of the contents of such

' communication and no evidence derived there-

3

from may be received in evidence in any trial,

hearing, or other proceeding in or before any

court, grand jury, department, officer, agency,

- regulatory body, legislative committee, or other

authority of the United States, a State, or a

political subdivision thereof if the disclosure of

that information would be in violation of this

chapter.

STATEMENT

Introduction:

Petitioner, a World War II veteran, is 76 years old

and is serving the functional equivalent of a federally

imposed life sentence. Since September 1991, he has

continually contended that he and his attorneys were |

the subject of illegal federal eavesdropping. Within this

certiorari petition, petitioner seeks vacation of the order

below denying an evidentiary hearing on the sole ques-

tion of whether petitioner and his attorney were un-

lawfully intruded upon by the federal government while

preparing for his 1991 jury trial.

1. On February 6, 1990, petitioner and others were

charged in Indictment 90 CR 87, in Chicago with, inter

alia, conspiracy, racketeering and gambling offenses.

The substance of the multi-count indictment charged

petitioner and others with illegal activities involving

organized crime in the Chicago area from the 1970s to

and including February 1990. Petitioner was detained

pending trial.

2. Within the fabric of pretrial discovery, the govern-

ment made available approximately 5,000 Title III and

consensual tape recordings (made between 1983 and

4

1989) involving petitioner and others. To facilitate pre-

trial preparation, the district court ordered that a

secure room on the nineteenth floor in the federal

Metropolitan Correctional Center (MCC), Chicago, be

set aside for the exclusive use of petitioner, his several

co-indictees and defense attorneys. 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 equip-

ment lacked recording capacity.

From the late spring of 1990 through late August

1991, petitioner, co-indictees and defense attorneys met,

at least twice weekly, in the presumptively secured

MCC room for trial preparation purposes. The govern-

ment assured the district court and the defense that

there were no eavesdropping devices in the room.’ Dur-

ing the [at least] twice-weekly conferences, trial strate-

gy was reviewed, assessed and refined. Occasionally,

attorneys for the non-custodial co-indictees joined the

custodial defendants at the MCC in order to facilitate

joint defense trial preparation.

The defense team also leased an office at 19 West

Jackson, Chicago (also known as the “tape room”),

across from the U.S. District Court, which was used as

the central depository for the 5,000 tapes, transcripts

and additional discovery materiais. All defense attor-

Consolidated pretrial defense motions requested written as-

surances 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. Counsels’

paranoia, whether real or dramatic, is wholly unwarranted”;

R.792, pg. 2, n. 3.

5

neys and the non-custodial co-indictees utilized the of-

fice for joint trial preparation conferences and strategy

meetings.

3. The discovered intrusion and subsequent events.

During late August 1991, cassette tape recordings

were surreptitiously delivered by unknown persons to

defense attorneys representing three of petitioner’s co-

indictees. The cassette recordings captured conver-

sations between the petitioner, other custodial co-

indictees and defense attorneys that had taken place in

the secure[d} custodial MCC trial-preparation room.

The defense attorneys immediately delivered the cas-

sette tapes to the Chief Judges of the Seventh Circuit

and United States District Court in Chicago.” At the

direction of [then] Chief Judge Bauer of the Seventh

Circuit, the tapes were delivered to the United States

Attorney in Chicago. The secured MCC room that had

been used for trial preparation was immediately sealed

and the Department of Justice (DOJ), through the

Office of Professional Responsibility (OPR) commenced

an investigation.

(a) On September 5, 1991, petitioner, and his co-

indictees sought a trial continuance (the trial was set

to commence September 17, 1991). Petitioner contended

that he was entitled to learn the nature and extent of

the electronic intrusions prior to proceeding with his

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

* The district court correctly noted that after the defense at-

torneys received copies of the tapes, they immediately notified

the Chief Judges as well as the United States Attorney in Chi-

cago (R. 839, p. 1).

6

held that lacking allegations that the government pros-

ecution team 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 district court continued the trial from

September 17 to October 1, 1991. Jd. at 24.

(b) On September 12, 1991, petitioner, his co-

indictees and counsel appeared before the district court.

The government advised the district court that the DOJ

investigation (which OPR commenced on September

17), would take between thirty and forty-five days (Tr.

of 9/12/91 at p. 6). The district court ascertained that

four tapes had been delivered to three defense attor-

neys. Id. The government contended that petitioner had

failed to assert that either the government trial prose-

cutors and/or agents were responsible for the taping. Jd.

at 10. The district court took the position that prosecu-

torial team “taint” was the only impacting issue: Was

taped information passed to the government trial team?

Id. at 11-12; 18, 29-30, 34-36. Agreeing that a DOJ in-

vestigation would take thirty to forty-five days, but

holding to the October 1 trial date, the district court

ordered that petitioner and his co-indictees be trans-

ported by either the U.S. Marshal’s Service, or a se-

curity company employed by the Marshal’s Service,

each morning to defense attorney offices for trial prepa-

ration, and returned to the MCC each afternoon. In ad-

dition, petitioner and his co-indictees were to be

brought to a “tape room” at 19 West Jackson for the

purpose of listening to, analyzing and Cataloguing the

several thousand taped conversations. Jd. at 12; R. 809.

In connection with proposed “taint” [attorney-defendant

eavesdropping or bugging] hearings, the district court

stated:

7

.. . 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 (ital.emph. added).

And I recognize that this is a burden on the

government, but this tape was made in a gov-

ernment facility, at the MCC.

Tr. 9/12/91 at p. 15 (ital.emph. added).

(c) On September 20, 1991, defense attorneys pre-

sented the district court with a report from a former

federal investigator, which preliminarily found the tap-

ing to have all the earmarks of a professionally trained

eavesdropper (R. 822; App. 26-36, infra).* Ultimately,

the district court agreed to hold a hearing “. . . when-

ever the investigations are done .. .” (Tr. 9/20/91 at

p. 35; Pet.’s emph.).

Trial counsel for the government urged trial date re-

tention, asserting that the only hearing needed was to

determine 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 govern-

* 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 surreptitious recordings,

and noted that it was normal practice for trained law enforce-

ment eavesdroppers to use two systems, one acting as a

backup (R. 822 at J 16(a)).

8

ment, the defense had the burden of demonstrating

intentional intrusion-plus-prejudice. Jd. at 18-19. The

district court adopted that position. Jd. at 20. The

DOJ/OPR attorneys from Washington, DC advised the

district court that their goal was to complete their in-

vestigation before November 1, 1991. Jd. at 30. The dis-

trict court noted that at whatever point the defense

wanted a “full blown” hearing, [the] government (no-

taint) affidavits could be challenged. Jd. at 39 (the

government prosecution team filed affidavits denying

any knowledge of any MCC eavesdropping).

Petitioner challenged the district court’s ruling (trial

before eavesdropping hearing), asserting that the inves-

tigation which led to 90 CR 87 had gone on for several

years prior to indictment, but petitioner and his attor-

neys were afforded only two weeks to probe the circum-

stances surrounding the attorney-client MCC eaves-

dropping (Tr. 42). The district court ultimately held

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 unimportant

(Tr. 45).

On September 25, 1991, the district court filed its

memorandum order denying petitioner’s request to con-

tinue the trial date (R. 839, p. 14-15). While noting a

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

the district court ruled that the intrusion needed a

direct nexus to the prosecutorial team. Jd. Since the

petitioners were not able to supply that linkage, no

further inquiry was needed (R. 839, at pp. 11-12). The

district court’s reasoning included:

Although the court has not heard the tape, for

purposes of this motion, the court will deem

9

counsels’ representations sufficient 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 anyone from the prosecution team taped

the defendants. Jn other words, even if someone

employed by the government did tape the defen-

dants, it is not relevant to the instant case un-

less the government employee is an attorney or

agent assigned to this case or unless the contents

of the tapes were communicated to an attorney

or agent assigned to this case.

R. 839, p. 11; 9/25/91; ital.emph. added.

The district court eschewed deciding whether the

OPR report (due November 1) would be made available

to the defense in support of its intentional governmen-

tal intrusion stance (Tr. 15).

4. Trial.

During early October 1991, with the MCC attorney-

defendant bugging issue unresolved, an anonymous jury

was empaneled. On March 10, 1992, the jury returned

mixed verdicts against petitioner and others.

5. Post-Trial.

(a) The DOJ Report. In February 1992, with petition-

er’s trial still in progress, the district court advised all

parties that the DOJ/OPR investigation (originally

promised for completion by November 1991) was still

ongoing (R. 1236). During September 1992, several

months after mixed verdicts were returned, the district

court notified the parties that she expected the DOJ/

OPR eavesdropping report to be filed by September 11,

1992 (under seal), and the district court would then

10

determine whether to disclose the results to petitioner

and counsel (R. 1461).

On September 24, 1992 the district court, again

noting that the circuits were divided, filed a memoran-

dum order denying any eavesdropping-evidentiary hear-

ing (R. 1482 at pp. 2-3). The district court concluded

that since petitioner had not shown illegal taping by

the prosecutorial team, the government had no burden

of explanation. Jd. at pp. 5-6. The district court’s mem-

orandum order noted that the DOJ/OPR investigation

was still incomplete and inconclusive. Id. at 8. The dis-

trict court noted that after the final report was re-

ceived, the defendants could refile a motion for indict-

ment dismissal. Jd. at 8, n. 9. The DOJ/OPR final re-

port was finally filed with the district court on Febru-

ary 23, 1994, and, according to the district court, the

final report was “inconclusive” (R. 2009). Petitioner’s

DOJ/OPR report disclosure requests were denied and

no evidentiary hearing has ever been held (R. 1856,

1862, 2029, 2032, 2034).

(b) Companion FOIA Proceedings

In 1993, petitioner, several co-indictees and their at-

torneys, filed an illegal eavesdropping civil suit in the

United States District Court, Chicago, under the name

and style Tuite, et al. v. Henry, et al., 93-C-3248. The

attorneys representing the plaintiffs filed a subpoena

seeking DOJ/OPR report disclosure. The government

declined to disclose the report, and the plaintiffs filed

a separate subpoena enforcement action for the DOJ/

OPR report in the U.S. District Court, District of

Columbia (Mis. No. 94-268; Lamberth, J.). While deny-

ing subpoena enforcement, Judge Lamberth’s factual

findings included:

11

Plaintiffs allege that while meeting with their

imprisoned clients in a Court-Ordered Room at

the Chicago Metropolitan Correctional Center

(“MCC”), confidential attorney-client conversa-

tions discussing defense strategy were unlawful-

ly tape recorded without the consent or knowl-

edge of the attorneys or their clients. Over-

whelming circumstantial evidence indicates that

MCC officials or employees “bugged” the Court-

Ordered Room. It would be nearly impossible for

anyone to have access into the prison without the

knowledge of the prison guards. Anyone entering

MCC had to pass through metal detectors and

was subject to searches. Plaintiffs claimed their

bags were examined and they were asked to sign

a card, subjecting them to penalties for false

statements, affirming that they were not bring-

ing objects, including recording devices, into the

prison. Access to the Court-Ordered Room in-

volved the attorneys entering an elevator which

was controlled solely by the guards, as well as a

series of man-trap doors. Prisoners exiting the

Court-Ordered Room were strip-searched, includ-

ing body-cavity searches. Additionally, an acous-

tical investigation revealed that the tape recorder

was most likely placed in a plenum ventilation

duct above the Court-Ordered Room, access to

which, without the knowledge of MCC officials,

would be highly unlikely.

Tuite v. Henry, et al., Mis. No. 94-268 at pg. 2; includ-

ing n. 4 (ital.emph. added).‘

* On appeal, the D.C. Circuit Court of Appeals reversed and

remanded, Tuite v. Henry, 98 F.3d 1411 (DC Cir. 1996). On

remand, the district court adhered to its earlier decision deny-

ing subpoena enforcement and the Court of Appeals affirmed

the district court decision, No. 98-5440 (unpublished).

12

6. Petitioner timely filed his § 2255 petition assert-

ing, inter alia, that his conviction and sentence was

tainted by unlawful eavesdropping on his attorney-

client communications while he was incarcerated and

awaiting trial at the MCC-Chicago. The district court

acknowledged that petitioner was now able to present

an affidavit from Daniel Otto, who during September

1991, worked for a private security company that had

been hired by the U.S. Marshal’s Service to transport

petitioner to defense attorney offices and the leased

office space at 19 West Jackson, during September 1991

(App. 37-40). Additionally, by virtue of limited govern-

ment disclosures made in the Tuite, et al. v. Henry, et

al., civil actions, petitioner was able to produce an FBI

302 report, incorporating a statement from a former

MCC federal security guard (App. 42-44). Notwithstand-

ing the now-available supporting documents, the

district court held that petitioner was procedurally

barred from pursuing his Sixth Amendment issue

within the fabric of his § 2255 filings (App. 12-16). The

district court’s January 5, 1999 memorandum opinion,

explained:

Defendants, however, repeatedly delayed the

evidentiary hearing and did not again request

the hearing until four months after the jury

found them guilty and ten months after the

originally scheduled hearing date. See Id. at

300. In these circumstances, Infelise has failed

to show that due diligence on his part could not

have revealed this evidence prior to trial.

App. 16, infra.

The district court’s reasoning stands in stark contrast

to its September 24, 1992 order which explained that

13

after the final report [DOJ/OPR] was received, the de-

fendants could refile a motion for indictment dismissal

(R. 1482 at pg. 8, n. 9). That report, deemed “incon-

clusive” by the district court was ultimately filed some

eighteen months later (February 23, 1994; R. 2009).

Petitioner’s tenacious district court disclosure requests

were denied and no evidentiary hearing [has] ever been

held (R. 1856, 1862, 2029, 2032, 2034). As indicated

ante, the court of appeals, declined pene? COA

request (App. 1-2).

REASONS FOR GRANTING THE WRIT

1. Certiorari should be granted, the judgment below

vacated and the case remanded because the district

court’s procedural bar § 2255 rejection conflicts with

the Court’s 28 U.S.C. § 2253(c) Certificate of Appeal-

ability analysis in Slack v. McDaniel, 529 U.S. __, 120

S.Ct. ___ (No. 98-6322; April 26, 2000).

(a) Certiorari should be granted because the court

below did not have the benefit of the Court’s interven-

ing “contrary to” or “unreasonable application of” hold-

ing in Williams v. Taylor, 529 U.S. __, 120 S.Ct. 1495

(2000) (O’Connor, J.).

2. Whether, in light of settled Supreme Court prece-

dent, the failure to hold an evidentiary hearing on peti-

tioner’s Sixth Amendment assertions that the govern-

ment intentionally intruded on his attorney-client pre-

trial preparation conversations, rises to the level of a

miscarriage of justice?

(a) Whether review should be granted to resolve the

circuit split regarding if there is per se prejudice where

14

[a] petitioner presents credible evidence that the gov-

ernment purposefully intruded into pretrial attorney-

client preparation-communications?

1. Petitioner is seeking certiorari on the question of

whether he should have the benefit of an evidentiary

hearing, on his Sixth Amendment government intrusion

eavesdropping issue, predicated on his § 2255 argu-

ments, exhibits and the district court’s factual findings

in Tuite v. Henry, ante, at pg. 11. In summary, peti-

tioner contends that he, his co-indictees and defense

attorneys were exposed to unlawful government eaves-

dropping, while preparing for trial during 1991, at the

Federal Correctional Center (MCC) in Chicago, Illinois.

The district court, absent the benefit of the Court’s

Slack v. McDaniel decision, ruled that petitioner’s il-

legal eavesdropping argument was procedurally barred,

App. 14-16, infra. In Slack, Justice Kennedy, for the

Court, explained:

The issue becomes somewhat more complicated

where, as here, the district court dismisses the

petition based on procedural grounds. We hold

as follows: When the district court denies a

habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional

claim, a COA should issue when the prisoner

shows, at least, that jurists of reason would find

it debatable whether the petition states a valid

claim of the denial of a constitutional right and

that jurists of reason would find it debatable

whether the district court was correct in its pro-

cedural ruling. This construction gives meaning

to Congress’ requirement that a prisoner dem-

onstrate substantial underlying constitutional

claims and is in conformity with the meaning of

15

the “substantial showing” standard provided in

Barefoot, supra, at 893, and n. 4, and adopted

by Congress in AEDPA.

529 U.S. at ___, 120 S.Ct. ___, Slip Op. at 8.

In Justice O’Connor’s opinion for the Court in Wil-

liams v. Taylor, 529 U.S. __, 120 S.Ct. 1495 (2000),

she explained when, and under what circumstances the

federal habeas court can grant habeas claims which

were adjudicated on the merits in State court:

Under the “contrary to” clause, a federal habeas

court may grant the writ if the state court

arrives at a conclusion opposite to that reached

by this Court on a question of law or if the state

court decides a case differently than this Court

has on a set of materially indistinguishable

facts. Under the “unreasonable application”

clause, a federal habeas court may grant the

writ if the state court identifies the correct gov-

erning legal principle from this Court’s decisions

but unreasonably applies that principle to the

facts of the prisoner’s case.

120 S.Ct. at 1523.

Petitioner contends that his § 2255 filings clearly

demonstrated the denial of a constitutional right and

that “jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.”

Further as demonstrated infra, the decision below con-

flicts with Judge O’Connor’s opinion for the Court in

Williams v. Taylor, because § 2255 rejection is both con-

trary to and comprises an unreasonable application of

settled Supreme Court precedent.

In light of the Court’s recent holdings in both Slack

v. McDaniel and Williams v. Taylor, certiorari should

16

be granted, the judgment below vacated and the case

remanded to afford the court below an opportunity to

analyze petitioner’s claims in light of the impacting-

intervening Court precedent.

2. The Sixth Amendment. Petitioner has a clear

Sixth Amendment guarantee to the effective assistance

of counsel, which incorporates essential communication

between counsel and defendant, see Strickland v. Wash-

ington, 466 U.S. 668, 104 S.Ct. 2052 (1984) (The rea-

sonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own state-

ments or actions. Counsel’s actions are usually based,

quite properly, on informed strategic choices made by

the defendant and on information supplied by the defen-

dant) (466 U.S. at 691; ital.emph. added).

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

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

while reviewing the intentional post-indictment intru-

sion into the attorney-client privilege. Justice Brennan

delivered the Court’s opinion, explaining:

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

prevent the accused from obtaining the assist-

ance of counsel. The Sixth Amendment also im-

poses on the State an affirmative obligation to

respect and preserve the accused’s choice to

seek this assistance. We have on several oc-

casions 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

17

dilutes the protection afforded by the right to

counsel.

474 U.S. at 170-171; fn. 7 omitted; ital.emph. added.

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

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

remanded Black’s case for a new trial. Black and his

attorney had been overheard by the government in an

unrelated investigation. The solicitor general advised

the Court that nothing from that overhear related to

Black’s tax evasion case, and suggested that the con-

viction be vacated and remanded to the district court

for an evidentiary hearing. The Court held 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 evidence that might be other-

wise inadmissible.

385 U.S. at 28-29.°

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, contending that where the contents

of the eavesdropping or wiretapping were not communi-

° Justice Harlan’s dissent, noted that none of the content of

the impermissible eavesdropping was communicated to the

prosecuting attorneys, thus remandment for an evidentiary

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

disposition, 385 U.S. at 31.

° 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. In O’Brien, the government requested remandment for

an evidentiary hearing. The Court opted for trial anew.

18

cated outside of the F.B.I., an evidentiary hearing

should ensue, [but] not an automatic new trial, 386

U.S. at 346-47.

In United States v. Morrison, 449 U.S. 361, 101 S.Ct.

665 (1981), the Court vacated the Sixth Circuit’s indict-

ment dismissal order, finding that the appellate remedy

for a Sixth Amendment violation was indecorous under

the circumstances. Justice White, for the full Court,

explained:

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

S.Ct. 190, 17 L.Ed.2d 26 (1966), and O’Brien uv.

United States, 386 U.S. 345, 87 S.Ct. 1158, 18

L.Ed.2d 94 (1967), law enforcement officers im-

properly overheard pretrial conversations be-

tween a defendant and his lawyer. None of

these deprivations, however, resulted in the dis-

missal of the indictment. Rather, the conviction

in each case was reversed and the Government

was free to proceed with a new trial.

449 U.S. at 365 (emphasis added).’

Petitioner is seeking an evidentiary hearing, and the

disclosure of the DOJ/OPR 1994 report (not indictment

dismissal).®

7 Morrison’s reference to Black and O’Brien demonstrate their

continued viability.

® Petitioner's disclosure assertions are consistent with the

Court’s decision in Alderman v. United States, 395 U.S. 165,

182, 89 S.Ct. 961 (1969), which rejected the notion that [the]

district court’s in camera review of eavesdropping related

materials was constitutionally adequate (“And yet that infor-

mation may be wholly colorless and devoid of meaning to one

less well acquainted with all relevant circumstances. Unavoid-

(continued...)

19

The Sixth Amendment’s constitutional premise em-

braces petitioner’s right to be free from prosecutorial in-

trusion into attorney-petitioner pretrial and trial prepa-

ration. Hence Morrison, blended with Black, O’Brien,

Kolod and Alderman, advances exactly that which has

heretofore been denied: Petitioner’s entitlement to an

evidentiary hearing.°

® (...continued)

ably, this is a matter of judgment, but in our view the task is

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

on the in camera judgment of the trial court to identify those

records which might have contributed to the government’s

case.”); in accord, United States v. Coplon, 185 F.2d 629, 638

(2nd Cir. 1950) (L. Hand, J.) (In the case at bar it may seem to

have been a flimsy grievance to deny to Judith Coplon the op-

portunity to argue that these records did “lead,” or might have

“led,” to her conviction; in truth it is extremely unlikely that

she suffered the slightest handicap from the Judge’s refusal.

But we cannot dispense with constitutional privileges because

in a specific instance they may not in fact serve to protect any

valid interest of their possessor... Few weapons in the arsenal

of freedom are more useful than the power to compel a govern-

ment to disclose the evidence on which it seeks to forfeit the lib-

erty of its citizens.).

° 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 eavesdrop-

ped 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.

20

2(a). 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 (1988). Justice

White, joined by the Chief Justice and Justice O’Con-

nor, dissented from the denial of certiorari while ad-

vancing the need for review and clarification because of

circuit conflicts involving Sixth Amendment intrusions

and the question of which party bears the burden of

persuasion, viz., prejudice, 485 U.S. at 1038.

The circuit conflict was recently considered by the

Tenth Circuit in Shillinger v. Haworth, 70 F.3d 1132,

1140-43 (10th Cir. 1995). In Shillinger, the court re-

viewed the grant of § 2254 relief, where a local sheriff

remained with Haworth and his counsel during pretrial

preparation, and communicated some of what he heard

to the prosecutor (who subliminally utilized that infor-

mation during Haworth’s trial). The warden appealed

from the district court grant of § 2254 and the Tenth

Circuit affirmed, and remanded for a determination of

what relief was appropriate (e.g., standing trial or in-

dictment dismissal). The Tenth Circuit assayed the lack

of circuit harmony, explaining, in part, that the Third

Circuit “. . . has adopted the rule that intentional

intrusions by the prosecution constitute per se Sixth

Amendment violation,” citing United States v. Levy, 577

F.2d 200, 210 (3rd Cir. 1978) and United States v. Cos-

tanzo, 740 F.2d 251, 254 (3rd Cir. 1984), cert. denied,

472 U.S. 1017 (1985). The Shillinger panel examined

decisions from the Second and District of Columbia cir-

cuits which held that “prejudice may not be required

when an intrusion is intentional, but have not specifi-

21

cally decided,” citing Briggs v. Goodwin, 698 F.2d 486,

493, n. 22 (DC Cir. 1982); on rehearing, 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 have held

that something beyond intentional intrusion itself is

required to rise to the level of a Sixth Amendment vio-

lation, 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-

64 (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,

n. 8 (8th Cir. 1981) (“It is certainly true that where

there is gross misconduct 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.”).

'° 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 al-

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

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

reversing 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),

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.

22

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), pro-

vides insight. The Court explained:

Second, there are no real proof problems in this

situation. As in the analogous search and sei-

zure and wiretap cases—where the burden of

proof is on the Government once the defendant

establishes the unlawful search or wiretap... .

378 U.S. at 103 (ital.emph. added; additional text omit-

ted).""

On petitioner’s direct appeal, the Seventh Circuit

opinion noted that the defense could have (1) argued

that no showing of prejudice was required or (2) pre-

sented some evidence of prejudice, United States v.

DiDomenico (Infelise), 78 F.3d 294, 300-01 (7th Cir.

1996) (Posner, J.), cert. denied, 519 U.S. 1006 (1996).

Though petitioner presented no evidence of prejudice,

on September 20, 1991, during one of the several pre-

trial skirmishes on the MCC attorney-eavesdropping

issue, one of the defense lawyers pointed out that if

[the] intrusion was intentional (flagrant), taint need not

be shown (Tr. of 9/20/91 at pp. 14-16). Thus petitioner

clearly argued to the district court that the intentional

intrusion by the government into the attorney-client

relationship obviated the need to show prejudice—at

'' 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

rye pe of persuasion should remain with the government, 120

F.2d at 488.

23

least for the purpose of warranting an evidentiary

hearing. Thus, the panel opinion was simply mistaken.

In all events, petitioner’s case involves the alleged

intentional intrusion into the attorney-client privilege

and thus constitutes a per se Sixth Amendment viola-

tion under the holdings of the Second, Third, Eighth

and D.C. Circuits. However, according to the First,

Sixth, Seventh and Ninth Circuits something beyond

the [intentional] intrusion is required to sustain a Sixth

Amendment violation.

CONCLUSION

This petition presents an important and unresolved

Sixth Amendment question on which the circuits are

divided. Petitioner submitted evidence of unlawful elec-

tronic governmental intrusion into his trial preparation

while a federal pretrial detainee. Geographical happen-

stance should not dictate the constitutional resolution.

The petition for certiorari should be granted.

Respectfully submitted,

ALLAN A. ACKERMAN, Esq.

Counsel of Record

2000 N. Clifton Avenue

Chicago, Illinois 60614

(312) 332-2891

Attorney for Petitioner

APPENDIX

App. 1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 7, 2000

Decided March 1, 2000

Before

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. DANIEL A MANION, Circuit Judge

No. 99-1468

ROCCO E. INFELISE,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 8277—Ann Claire Williams, Judge.

ORDER

Petitioner moved to vacate, correct, or set aside a sen-

tence pursuant to 28 U.S.C. § 2255. The district court

denied the motion and declined to issue a certificate of

appealability. Petitioner now has filed a request for a

certificate of appealability.

App. 2

This court has reviewed the final order of the district

court and the record on appeal. None of the issues iden-

tified in Infelise’s request for a certificate of appealability

is constitutional; all appear to rest on a statute or com-

mon law principle. Therefore, none is eligible for a cer-

tificate of appealability. See 28 U.S.C. § 2253(c)(2).

Accordingly, the request for a certificate of appeal-

_ability is DENIED.

———

App. 3

[Dated January 5, 1999]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROCCO ERNEST INFELESE,

Plaintiff,

Case No. 97 C 8277

)

)

)

)

)

)

UNITED STATES OF AMERICA, )

)

)

Defendant.

MEMORANDUM OPINION AND ORDER

Pursuant to 28 U.S.C. § 2255, Rocco Infelise (“Infelise”)

moves to vacate, set aside, or correct his sentence.

Infelise also moves to supplement his § 2255 petition

with new arguments. For the reasons set forth below, the

court grants Infelise’s motions for leave to supplement

his § 2255 motion and denies Infelise’s §2255 motion in

its entirety.

Background

Infelise and twenty other defendants were charged

with RICO offenses they committed as members of an

organized crime group know as the Ferriola Street Crew

(“the Crew”). The Crew dabbled in various illegal activi-

ties including, but not limited to, extortion, gambling,

loan sharking, bookmaking, bribery, and murder. The

criminal RICO prosecution primarily focused on the

App. 4

Crew’s attempts to extort protection money, or “street

tax,” from bookmakers not connected with the Crew;

however, the trial also revealed that Infelise and other

members of the Crew were involved with the murder of

a non-Crew bookmaker named Hal Smith (“Smith”). In a

scene closely akin to many Hollywood movies depicting

mafioso-style organized crime, Smith’s body was even-

tually found in the trunk of his car—Smith had been

tortured and strangled.

Infelise was tried together with other Crew defendants

and found guilty on most counts of the indictment. Like

the other defendants, the court sentenced Infelise to a

long prison term. After sentencing, Infelise appealed his

conviction and sentence. Finding no error, the Seventh

Circuit affirmed Infelise’s conviction and sentence in all

respects. United States v. DiDomenico, 78 F.3d 294 (7th

Cir. 1996). Infelise then filed a petition for a writ of

certiorari with the United States Supreme Court, which

the Court denied. DiDomenico v. United States, 1175S. Ct.

507 (1996). Infelise then filed this § 2255 federal habeas

corpus petition and subsequently moved to supplement

his § 2255 motion with additional issues.

Analysis

Infelise moves the court to vacate his conviction and

sentence pursuant to 28 U.S.C. § 2255, which provides

that a prisoner may move the court to vacate, set aside,

or correct a sentence if (1) the sentence was imposed in

violation of the Constitution or United States laws; (2)

the court was without jurisdiction to impose the sen-

tence, or (3) the sentence was in excess of the maximum

App. 5

authorized by law, or is otherwise subject to collateral

attack. Before reaching the substantive issues raised in

Infelise’s § 2255 motion, however, the court must resolve

Infelise’s “motion” that the court recuse itself from con-

sidering Infelise’s § 2255 motion.

I. Infelise’s Motion to Recuse

Within the body of his § 2255 petition, Infelise argues

that this judge should recuse herself because Infelise

“feels [that this court’s evaluation of his § 2255 motion]

is unfair to him.” According to Infelise, this court cannot

treat his § 2255 motion fairly because the court knew of

an FBI investigation into death threats directed at this

judge that may have originated with Infelise or members

of the Crew. Citing the investigation of these death

threats as the source of bias, Infelise invokes two sepa-

rate federal statutes requiring judicial recusal. Infelise

first asserts that this court is biased against him and

must therefore recuse under 28 U.S.C. § 144. Alterna-

tively, Infelise insists that because an objective observer

would question this court’s impartiality towards him, the

court must recuse under 28 U.S.C. § 455.

28 U.S.C. § 144 requires a federal district judge to be

removed from a case if that judge “has a personal bias or

prejudice either against [one party] or in favor of any

adverse party ....” In addition to this showing of judicial

bias, § 144 also requires the moving party to file a timely

motion for recusal, an affidavit stating the facts and the

reasons for the belief that bias or prejudice exists, and a

certificate of counsel of record stating that the motion is

made in good faith. 28 U.S.C. § 144; United States v.

—

App. 6

Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985). “A sec-

tion 144 affidavit is not timely filed unless filed ‘at the

earliest moment after the movant acquires knowledge of

the facts demonstrating the basis for such disqualifica-

tion.’” United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir.

1993) (quoting United States v. Patrick, 542 F.2d 381,

390 (7th Cir. 1976)).

In this case, Infelise filed an affidavit with his § 2255

motion stating that he did not threaten this court and

that he “realistically fear{ed]” that he would not receive

fair and impartial treatment from this court. (Infelise

Aff. at 7 3.) After the government pointed out that In-

felise’s attorney failed to file a certificate of good faith

filing, Infelise’s counsel certified the affidavit in an un-

signed footnote. (Def.’s Reply at 6, n. 9.)' Because the

procedural steps of § 144 are strictly applied, the court

does not believe that an after-the-fact footnote in a

pleading constitutes an certificate of counsel under § 144.

Additionally, Infelise has failed to explain why he did not

file his motion for recusal immediately after learning of

the government investigation into the alleged death

threats. The record shows that Infelise has known of the

investigation since June 3, 1997; however he did not ask

the court to recuse itself until more than five months

later. Because counsel failed to submit a proper certifi-

cate of good faith filing, and Infelise has offered no ex-

planation for waiting so long to seek the court’s recusal,

the court finds that Infelise has failed to comply with the

' “Def.’s Reply” is the court’s abbreviation for Infelise’s far

more colorful title, “An Infelise Answer to the Government’s

Dismissal Importunings.”

App. 7

procedural requirements of § 144. These procedural

grounds alone justify the denial of Infelise’s § 144 recusal ©

motion.

Assuming, arguendo, that Infelise did satisfy the “strict

procedural requirements of § 144,” Balistrieri, 779 F.2d

at 1202, Infelise fails to show that this court is biased

against him or in favor of the government. Because the

standard of “personal bias or prejudice” bears the same

meaning under both 28 U.S.C. 8§ 144 and 455, United

States v. Boyd, No.89 CR 908, 1995 WL 656691, at *1

(N.D. Ill. Nov. 6, 1995) (citing Balistrieri, 779 F.2d at

1202), the court will simultaneously analyze its pur-

ported bias under both statutes.

To trigger recusal for bias or prejudice, the court must

find that a reasonable person would be convinced that

the judge is biased.” Balistrieri, 779 F.2d at 1202. Both

§§ 144 and 455 are concerned with the appearance of

bias, not actual bias. Liteky v. United States, 114 5. Ct.

1147, 1153 (1993). The recusal statutes are “not intended

to protect litigants from actual bias in their judge but

rather to promote public confidence in the impartiality of

the judicial process.” Boyd, 1995 WL 656691, at *2 (citing

Bailistrieri, 779 F.2d at 1204). The test is “‘whether an

objective, disinterested observer fully informed of the

facts underlying the grounds on which recusal was

sought would entertain a significant doubt that justice

would be done in the case.’” Boyd, 1995 WL 656691, at *2

(quoting Pepsico, Inc. v. McMillen, 764 F.2d 458, 460

(7th Cir. 1985); see also United States v. Murphy, 768

F.2d 1518, 1538 (7th Cir. 1985) (A judge need not recuse

herself unless an objective and disinterested observer

App. 8

would conclude that the judge harbored an improper bias

against the petitioner.).

In rare cases, a defendant’s alleged death threats

against a judge may provide evidence of bias warranting

recusal absent a formal recusal motion. United States v.

Yu-Leung, 51 F.3d 1116, 1119-20 (2d Cir. 1995) (citing

United States v. Greenspan, 26 F.3d 1001, 1005-07 (10th

Cir. 1994)). However, recusal is not required simply be-

cause the trial judge became aware of a defendant’s

alleged death threats directed at the court. Compare Yu-

Leung, 51 F.3d at 1119 (alleged death threats did not

warrant recusal) and People v. Hall, 626 N.E. 2d 131, 136

(Ill. 1993) judge who was physically attacked by defen-

dant not required to recuse himself during post convic-

tion proceedings) with Greenspan, 26 F.3d at 1006 (under

unique circumstances of the case, defendant’s conspiracy

to murder judge warranted recusal).

In Yu-Leung, the Second Circuit held that a district

court judge who was notified that the defendant had

allegedly threatened to kill the judge was not obligated

to recuse himself. 51 F.3d at 1119. The situation was

remarkably similar to the instant case. As in Yu-Leung,

Infelise allegedly threatened the life of the judge and the

government notified the court of the threat. Further, in

both cases, the government made the district judge

aware of the threats, and that it had investigated the

matter. Significantly, the Second Circuit noted that

neither the government nor the judge considered the

threats to be serious. 51 F.3d at 1120. Similarly, in this

case the alleged threats were never substantiated, view-

_ed as serious by the F.B.I., or considered realistic by this

court. Moreover, Infelise has denied any involvement

App. 9

with the threats and this court has accepted Infelise’s

denial of involvement as true. Based on the facts of this

case, no reasonable person would conclude that the al-

leged threats caused this court to harbor any bias or

prejudice towards Infelise.

Contrary to Infelise’s assertion, this case is not similar

to Greenspan. In Greenspan, the court found that recusal

was required because “[t]he judge obviously took the

(death) threat very seriously, and chose to accelerate

court procedures in order to reduce the risk to him and

his family as he perceived it.” 26 F.3d at 1007. In addi-

tion to expediting the defendant’s sentencing hearing, the

trial judge also denied the defendant’s motion for a con-

tinuance. Id. at 1006. Because the district court’s actions

manifested an apparent belief in the genuinene:s of the

death threats, the Tenth Circuit held that an objective

observer would conclude that the trial judge may have

been impartial. Jd. at 1007.

In stark contrast to the facts in Greenspan, this court

has never taken the alleged threats seriously. Similarly,

unlike the district court in Greenspan, this court has

never strayed from normal procedures throughout In-

felise’s case to reduce any perceived risk. The govern-

ment submitted an in camera chronology of the threat

investigation to this court on December 10, 1997. As this

court has already stated on numerous occasions, this

judge believed that the alleged death threats were with-

out merit and did not warrant an investigation. More-

over, Infelise has denied involvement in any death

threats against the judge. Further, after an inconclusive

investigation, the FBI decided not to pursue the matter

any further. Therefore, since this court and all parties

App. 10

agree that any alleged death threats from Infelise were

without merit, the court denies Infelise’s motion to recuse

under both § 455 and § 144.

II. Statute of Limitations

Before the court can turn to the substantive issues set

forth in Infelise’s § 2255 motion, the court must first

resolve an argument raised by the government. Specifi-

cally, the government contends that Infelise’s § 2255 mo-

tion is barred by the applicable statute of limitations.

The court disagrees with the government’s argument and

holds that Infelise’s § 2255 motion is timely filed.

On April 24, 1996, Congress enacted the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). Among

other things, the AEDPA created a statute of limitations

for the filing of federal habeas corpus petitions. In rele-

vant part, the AEDPA amended 28 U.S.C. § 2255 by

providing that “[a] 1-year period-of limitation shall apply

to a motion under this section. The limitation period

shall run from the latest of — (1) the date on which the

judgment of conviction becomes final... .” 28 U.S.C.

§ 2255. In United States v. Gendron, 154 F.3d 672, 674

(7th Cir. 1998), the Seventh Circuit held that “federal

prisoners who decide not to seek certiorari with the Su-

preme Court will have the period of limitations begin to

run on the date this court issues the mandate in their

direct criminal appeal.” Jd. The Gendron court did not,

however, address the legal issue in this case—whether

§ 2255’s statute of limitations is suspended for a federal

prisoner who does seek a writ of certiorari from the Su-

preme Court.

App. 11

As Gendron noted, the Supreme Court has traditionally

defined a final criminal judgment as the date “a judg-

ment of conviction has been rendered, the availability of

appeal exhausted, and the time for a petition for certio-

rari elapsed or a petition for certiorari finally denied.”

Griffin v. Kentucky, 479 U.S. 314, 321 p.6 (1987) (citing

United States v. Johnson, 457 U.S. 537, 542 n.8 (1982));

see also United States v. Simmonds, 111 F.3d 737, 744

(10th Cir. 1997) (holding that statute of limitations for a

§ 2255 motion begins to run on the date that the United

States Supreme Court denies certiorari); Dietsch v.

United States, 2 F.Supp. 2d 627, 635-636 (D.N.J. 1998)

(discussing differing approaches to finality questions.)

The government argues that final judgment was ren-

dered on May 31, 1996, when the Seventh Circuit denied

Infelise’s petition for rehearing en banc. In contrast,

Infelise argues that his final judgment was rendered

when the Supreme Court denied his petition for a writ of

certiorari on December 2, 1996. The court agrees with

Infelise’s approach, which is supported by logic, funda-

mental fairness, and the applicable case law. The court

will therefore determine whether Infelise’s § 2255 motion

is barred by the statute of limitations using the Decem-

ber 2, 1996 date the Supreme Court denied his petition

for a writ of certiorari. Because Infelise filed his habeas

petition on November 26, 1997, less than one year after

December 2, 1996, Infelise’s § 2255 motion is not barred

by the statute of limitations.

App. 12

III. Infelise’s Substantive Arguments

In his original § 2255 motion, Infelise advances four

substantive arguments.’ Specifically, Infelise argues that

he is entitled to relief under § 2255 because (1) his

conviction and sentence were tainted by unlawful elec-

tronic eavesdropping on his attorney-client communica-

tions while he was incarcerated and awaiting trial at the

Metropolitan Correctional Center (“M.C.C.”), the federal

prison in Chicago, Illinois; (2) the jury’s verdict was not

unanimous or correct; (3) the court violated his Fifth

Amendment rights when it sentenced him to maximum

consecutive sentences; and (4) the sentence he received

was in excess of that mandated by law. The government

argues that Infelise is procedurally barred from raising

these arguments in his § 2255 motion because he raised

each of them in his direct appeal.

* In his first reply brief, Infelise raises an argument regarding

the use of an anonymous jury. Infelise indicated that he would

seek leave to supplement his § 2255 motion with this issue.

However, the jury anonymity issue was entirely absent in

Infelise’s supplemental motion and Infelise has never formally

requested leave to add this issue to the ever-growing list of

“supplemental issues” to his § 2255 motion. Therefore, since |

Infelise first raised the argument in a reply brief and has

never obtained leave of court to raise the issue, the court will

not consider it. In any event, if the court allowed Infelise to

tack this argument on to his § 2255 motion, the court would

dismiss it as procedurally barred because the Seventh Circuit

already rejected the issue during Infelise’s direct appeal. See

United States v. DiDomenico, 78 F.3d 294, 301-02 (7th Cir.

1996). If this argument is not procedurally barred, then it is

totally without merit.

—————— eee

App. 13

A § 2255 motion is “neither a recapitulation of nor a

substitute for a direct appeal.” McCleese v. United States,

75 F.3d 1174, 1177 (7th Cir. 1996). Thus, a federal

prisoner may not use § 2255 as a vehicle to circumvent

decisions made by the appellate court in a direct appeal.

United States v. Frady, 456 U.S. 152, 165 (1982); Doe

v. United States, 51 F.3d 693, 698 (7th Cir. 1995). Ac-

cordingly, in a § 2255 motion, a defendant cannot raise

(1) issues raised on direct appeal, absent a showing of

changed circumstances; (2) nonconstitutional issues that

could have been but were not raised on direct appeal; and

(3) constitutional issues that were not raised on direct

appeal, unless the § 2255 petitioner demonstrates cause

for the procedural default as well as actual prejudice

from the failure to appeal. Belford v. United States, 975

F.2d 310, 313 (7th Cir. 1992), overruled on other grounds

by, Castellanos v. United States, 26 F.3d 717, 719-20;

Norris v. United States, 687 F.2d 899, 900 (7th Cir.

1982); United States v. Herrera, 918 F.Supp. 243, 246

(N.D. Ill. 1996).

In his original § 2255 motion, Infelise first argues that

his conviction and sentence were tainted by unlawful

electronic eavesdropping on his attorney-client communi-

cations while he was incarcerated and awaiting trial at

the M.C.C. The court finds that Infelise is procedurally

barred from raising this issue in his § 2255 motion be-

cause he raised it on direct appeal. In that direct appeal

the Seventh Circuit carefully and extensively considered

the issue, found no error, and rejected the same ar-

guments Infelise now raises in his § 2255 motion. See

United States v. DiDomenico, 78 F.3d 294, 298-301 (7th

Cir. 1996). Because Infelise previously asserted this iden-

App. 14

tical issue on direct appeal, he is procedurally barred

from rearguing the point in his § 2255 motion. See Bel-

ford, 975 F.2d at 313; see also Olmstead v. United States,

55 F.3d 316, 319 (7th Cir. 1995) (“in the absence of

changed circumstances of fact or law, we will not recon-

sider an issue which was already decided on direct ap-

peal.”).

Infelise attempts to evade this procedural default by

offering the affidavit of Daniel Otto (“Otto”), a now-

convicted felon who worked as a private security officer

charged with transporting Infelise to and from the

M.C.C. after the bugging incident. In his affidavit, Otto

states that he was in an office building room at 3:00 a.m.

with Federal Marshals and F.B.I. agents the day that

Infelise was supposed to meet with his attorneys in the

same room. According to Otto, he was there to “chose a

location where [his] men would be stationed to prevent

escapes or disturbances.” (Otto Aff. at | 7.) Otto states

that while present in the room,

there were technicians from the FBI who were

doing something with the walls or windows of the

office. I could not determine what, in fact, they

were doing, but they appeared to be placing

something into the interior walls and window

sashes which faced Jackson Boulevard. These

men were not part of my team, nor were they

part of the U.S. Marshals Service and were

identified to me as being technicians for the FBI.

(Id.) Otto also stated that U.S. Marshal Charles Schue

(“Schue”) asked Otto to eavesdrop on Infelise’s conversa-

tions while transporting Infelise and report the sub-

stance of the conversations back to Schue. (Jd. at | 4-5).

App. 15

Finally, Otto asserts that Schue said that Infelise was

being transported to this room outside the M.C.C. so that

defendants could meet in a place outside the MCC to

prepare for trial with their attorneys because agents of

the federal government had been caught bugging the

defendants at the MCC.” (/d. at 3.)

As noted, Infelise is procedurally barred from raising

the M.C.C. bugging issue in his § 2255 petition “in the

absence of changed circumstances of fact or law.” Olm-

stead, 55 F.3d at 319. Because Infelise now introduces

the Otto affidavit, the court presumes that Infelise in-

tends to argue that changed circumstances of fact war-

rant the court’s review of the M.C.C. bugging issue.’ The

court must therefore determine whether the information

contained in the Otto affidavit constitutes “changed cir-

cumstances of fact” under the Seventh Circuit’s decisions

in Olmsted, Belford, and Norris.

“To the extent that [a § 2255] petition is based on new-

ly discovered evidence, the defendant must also show

that due diligence on his part could not have revealed the

evidence prior to trial.” United States v. Scherer, 673 F.2d

176, 178 (7th Cir. 1982); United States v. Hedman, 655

F.2d 813, 814-15 (7th Cir. 1981); see also United States v.

Hope, No. 92 C 6654, 1993 WL 135751, at *3 (N.D. Il.

April 28, 1993) (“When a petitioner presents new evi-

* The court is forced to make this presumption because In-

felise does not explicitly argue in any of his briefs that the

Otto affidavit constitutes changed circumstances of fact. In-

felise’s papers seem more concerned with directing derogatory

comments at the federal government than they do with the

business of advocating legal arguments.

App. 16

dence in support of a request for post-conviction relief

under § 2255, he must show that he could not have

produced the evidence at trial without due diligence.”).

In this case, as the Seventh Circuit explained, Infelise

was given more than ample opportunity to uncover any

evidence concerning the alleged M.C.C. bugging before

trial. See DiDomenico, 78 F.3d at 300-01. This court di-

rected the government to furnish defendants with a list

of all employees who had access to the meeting room at

the M.C.C., and gave the defendants’ lawyers subpoena

power to compel the presence of witnesses at a hearing

before this court. The court scheduled a hearing and the

government indicated that it was ready to proceed with

the hearing. Defendants, however, repeatedly delayed

the evidentiary hearing and did not again request the

hearing until four months after the jury found them guil-

ty and ten months after the originally scheduled hearing

date. See id. at 300. In these circumstances, Infelise has

failed to show that due diligence on his part could not

have revealed this evidence prior to trial. Accordingly,

because Infelise could have previously discovered this

evidence through the exercise of due diligence, Infelise is

procedurally barred from asserting the M.C.C. bugging

issue in his § 2255 motion.

Infelise next argues that he is entitled to relief under

§ 2255 because the jury’s verdict was not unanimous or

correct. However, Infelise is procedurally barred from

raising this argument because he asserted the identical

argument in his direct appeal. See DiDomenico, 78 F.3d

at 302. Unlike the M.C.C. bugging issue, Infelise does not

even attempt to show changed circumstances of fact or

law upon which the court could base another review of

. App. 17

this issue. The court therefore holds that Infelise is

procedurally barred from raising this issue because he

raised this issue in his direct appeal and fails to show

changed circumstances of fact or law.

Infelise next argues that his Fifth Amendment rights

were violated when the court sentenced him to maximum

consecutive sentences. On this point, poor advocacy again

forces the court to speculate as to the legal argument

Infelise intends to advance. Amazingly, in its entirety,

Infelise’s argument on this issue states:

Ground Four: Petitioner asserts that the

court’s imposition of maximum consecutive sen-

tences comprises a continuing Fifth Amendment

violation.

This is Infelise’s entire argument, or, more appropriately,

Infelise’s legal conclusion. Infelise supplies no factual

basis for this conclusion. Infelise gives no legal authority

to support this conclusion. Infelise provides no reasoned

analysis upon which to base this conclusion. No court

should have to waste its already strained time and

resources attempting to guess what legal argument a

party is trying to make or how that legal theory applies

to the facts of the case before the court.

Nevertheless, in an abundance of caution, the court

presumes that Infelise is attempting to resurrect yet

another argument that he already made on direct appeal

and that the Seventh Circuit already shot down. That is,

the court presumes that Infelise means to argue that his

sentence is unlawful because the court sentenced him to

consecutive terms of years without a jury recommen-

dation. Infelise is, however, procedurally barred from

App. 18

raising this argument because he raised the identical

issue on direct appeal and the Seventh Circuit dismissed

it without comment, other than to call it “frivolous.” See

DiDomenico, 78 F.3d at 298. This court therefore holds

that Infelise is procedurally barred from asserting this

argument in his § 2255 motion because he makes no

showing of changed circumstances of fact or law on this

issue.

Infelise’s final argument in his original § 2255 motion

states that “[t]lo the extent applicable, [he] adopts the

sentencing argument submitted by Louis Marino.” In

essence, this argument repeats yet another complaint

Infelise has previously raised before the Seventh Circuit.

The principle argument is that this court should not have

determined for sentencing purposes that the defendants

participated in a conspiracy to murder Smith, when the

jury did not return a guilty verdict for that conspiracy.

On direct review, the Seventh Circuit rejected this argu-

ment as contrary to the law of the circuit. DiDomenico,

78 F.3d at 304. Because Infelise has failed to make a

showing of changed circumstances of fact or law concern-

ing this argument, he is procedurally barred from raising

this issue in his § 2255 motion.

IV. Infelise’s Motions to Supplement

Since filing his original § 2255 motion, Infelise has filed

two motions to supplement his pending § 2255 motion

that raise additional substantive arguments. The govern-

ment argues that the court should not consider these

supplemental arguments because they constitute second

App. 19

or successive petitions under 28 U.S.C. § 2255. Para-

graph eight of § 2255 was amended by the AEDPA to

incorporate the following requirements: “{a} second or

successive motion must be certified . . . by [the] court of

appeals to contain (1) newly discovered evidence that, . . .

in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence -that no

reasonable fact finder would have found the movant

guilty of the offense; or (2) a new rule of constitutional

law.” 28 U.S.C. § 2255.

“The idea behind § 2255 q{ 8 is that a prisoner is en-

titled to one, but only one, full and fair opportunity to

wage a collateral attack.” O’Connor v. United States, 133

F.3d 548, 550 (7th Cir. 1998). In cases such as this where

a prisoner has a § 2255 motion pending and the court has

yet to rule on the petition, courts frequently allow pris-

oners to add issues to their original § 2255 motion. See,

e.g., United States v. Holguin, 16 F.Supp.2d 595, 597 (D.

Md. 1998) (considering issues in both pending § 2255

motion and supplemental motion filed nine months

later). Here, Infelise has not filed any prior § 2255

motions and Infelise sought leave of court to file his

motions to supplement. Finally, prior to this Memoran-

dum Opinion and Order, the court has not ruled on the

merits of Infelise’s § 2255 motion. The court therefore

concludes that because there has been no disposition on

the merits of Infelise’s original § 2255 motion, the mo-

* Neither the government’s briefs, nor this court’s own re-

search, reveal any cases in which a court has denied a motion

to supplement a § 2255 petition where the original motion

remained pending before the court.

App. 20

tions to supplement are not second or successive petitions

requiring certification from the Seventh Circuit.

While the court finds that Infelise’s motions to supple-

ment his § 2255 petition are not second or successive

petitions, this finding does not save the arguments in

those motions from certain doom. Specifically, Infelise’s

first motion to supplement argues that the court should

reduce his sentence because the court’s sentence is the

functional equivalent of a life sentence. This argument

fails for two very fundamental reasons. First, arguments,

such as this, that are based on the court’s application of

the United States Sentencing Guidelines are not cogniza-

_ble in a § 2255 motion. See Scott v. United States, 997

F.2d 340, 342-43 (7th Cir. 1993). In any event, even if

this argument did fall within the scope of § 2255, Infelise

is procedurally barred from raising it because it is a

nonconstitutional issue that he could have but did not

raise at trial or on direct appeal. See Belford v. United

States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on

other grounds by, Castellanos v. United States, 25 F.3d

717, 719-20; Norris v. United States, 687 F.2d 899, 900

(7th Cir. 1982); United States v. Herrera, 918 F.Supp.

243, 246 (N.D. Ill. 1996). Because Infelise’s claim is not

cognizable under § 2255, and he has waived review of it,

the court rejects Infelise’s argument that his sentence

should be reduced because of his age.

In his second motion to supplement his § 2255 petition,

Infelise argues that he is entitled to relief based on

United States v. Singleton, 144 F.3d 1343 (10th Cir.

1998) and United States v. Lowery, 15 F. Supp.2d 1348

(S.D. Fla. 1998). Both Singleton and Lowery held that the

‘ BNE 6 5 SEEMS DERE ERI NE Sa pate peared

ogt a

App. 21

government violates 18 U.S.C. § 201(c)(2) if it offers to

help a witness obtain a lesser prison sentence in ex-

change for truthful testimony. Infelise argues that this

court should apply these holdings to his case because the

government cut a deal with witness William Jahoda,

whose testimony was instrumental in securing Infelise’s

conviction.

This court joins the overwhelming majority of other

courts to consider this argument and reject it as patently

incorrect. See, e.g., United States v. Haese, No. 97-10307,

1998 WL 842185 (5th Cir. Dec. 7, 1998); United States v.

Ware, 161 F.3d 414 (6th Cir. 1998); United States v.

Revis, 22 F. Supp.2d 1242 (N.D. Okla. 1998); United

States v. Reid, 19 F. Supp.2d 534 (E.D. Va. 1998); United

States v. Arana, 18 F. Supp.2d 715 (E.D. Mich. 1998);

United States v. Moore, No. 97 C 1781, 1998 WL 778073

(N.D. Ill. Nov. 2, 1998) (Leinenweber, J.). Additionally, as

Judge Leinenweber noted in Moore, the reasoning of

Singleton and Lowery is inconsistent with the law of the

Seventh Circuit. See United States v. Barrett, 505 F.2d

1091 (7th Cir. 1975). Thus, because this court believes

that the Singleton and Lowery are incorrect, and those

decisions conflict with binding Seventh Circuit precedent,

the court rejects Infelise’s argument that he is entitled to

§ 2255 relief based on a governmental violation of 18

U.S.C. § 201(c)(2).

Conclusion

The court grants Infelise’s motions to supplement his

§ 2255 motion and denies Infelise’s § 2255 motion to

vacate, set aside, or correct his sentence in its entirety.

App. 22

ENTER:

lel J Claire Willi

Ann Claire Williams,

Judge

Dated: JAN 5 1999

App. 23

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: 97 C 8277 Date: February 8, 1999

Name of Assigned Judge: Ann C. Williams

“Case Title: Infelise v. United States

**e¥ KK *

DOCKET ENTRY:

**K* K *

(10) X [Other docket entry]

: (11) X [For further detail see order (on reverse side/of

; attached to) the original minute order. ]

* * * *K *

[Reverse Side]

: (Reserved for use by the Court)

ORDER

On January 5, 1999, this court entered a Memorandum

Opinion and Order denying Rocco Infelise’s motion to

vacate set aside, or correct his sentence under 28 U.S.C.

§ 2255. Two days later, Marino v. United States, 97 C

7159 into its January 5, 1999 Memorandum Opinion and

Order in this case. Infelise now moves the court to issue

a certificate of appealability.

ca OR DEE OOMS) © dy + — ‘ &

Under 28 U.S.C. § 2253(c)(3), this court may issue a

certificate of appealability only if the petitioner makes

| a substantial showing of the denial of a constitutional

App. 24

right. Infelise seeks a certificate of appealability on four

issues. Infelise first asserts that this court should have

recused itself from presiding over his § 2255 motion

because this judge knew of alleged death threats which

were rumored to have come from Infelise. However, as

the court explained at great length in its January 5, 1995

Opinion, recusal was not required in this case.

Infelise next contends that he was deprived a fair trial

because of the alleged governmental recording of his

pretrial communications with his attorneys. As the court

explained in its previous two orders, Infelise has proce-

durally defaulted on this issue because he could have

discovered his new evidence through the exercise of due

diligence, but failed to do so. In the event that Infelise is

not procedurally barred from asserting this issue, the

court notes that the Otto affidavit is factually inconclu-

sive and contains inadmissible hearsay. Finally, as the

Seventh Circuit observed in his direct appeal, Infelise

has failed to show any prejudice from the unsubstanti-

ated “bugging.”

Relying primarily on the reasoning in United States v.

Singleton, 144 F.3d 343 (10th Cir. 1998), Infelise asks the

court to issue a certificate of appealability on the issue of

whether the government violated is U.S.C. § 201(c)(2)

when it cut a deal with William Jahoda to testify against

him. What Infelise conveniently fails to mention, how-

ever, is that several weeks before Infelise filed his motion

for a certificate of appealability, an en banc panel of the

Tenth Circuit rejected the holding of the original three

judge Singleton panel. See United States v. Singleton, No.

97-3178, 1999 WL 6409 at *5-6 (10th Cir. Jan. 8, 1990).

App. 25

In any event, as this court already explained, Infelise’s

argument is contrary to Seventh Circuit law.

Finally, Infelise claims to have “raised significant sen-

tencing issues, based on decisions reported after [he was]

sentenced . . .” Because Infelise does not identify those

“significant issues,” the court finds no substantial show-

ing of the denial of a constitutional right. In an abun-

dance of caution, the court has carefully reviewed In-

felise’s several § 2255 filings and the court’s previous two

orders. In sum, the court finds no substantial showing of

the denial of a constitutional right regarding any of the

sentencing issues Infelise raised.

In reviewing its orders and Infelise’s motions, the court

did note one argument that it quite understandably over-

looked. Specifically, in one of his reply briefs, Infelise for

the first time used the term “ineffective assistance of

counsel” and argued that his attorney should have moved

for a downward departure of his sentence based on

Infelise’s age and health. To the extent that this passing

mention of ineffective assistance of counsel in a reply

brief constitutes an argument, the court rejects it. Hav-

ing presided over Infelise’s trial, being so intricately

familiar with the facts of this case, and ultimately sen-

tencing Infelise, this court can say without a doubt that

Infelise’s attorney did not provide ineffective assistance

of counsel by not moving for a downward departure on

these grounds. Such a motion would have been denied

because of the egregious nature of Infelise’s crimes.

The court denies Infelise’s motion for a certificate of

appealability.

App. 26

CounterCom

A Division of EPS, Inc.

12115 Self Plaza

September 23, 1991 Suite 200

Dallas, Texas 75218

Mr. Patrick A. Tuite (214) 327-9055

Patrick A. Tuite, Ltd. Attorneys

105 W. Adams St., 31st Floor

Chicago, IL 60603

RE: Acoustical Investigation

Metropolitan Corrections Center

Chicago, Ill.

Dear Sir:

On September 18, 1991, David Logan and I, the under-

signed, traveled to Chicago from Dallas to perform a

technical investigation for which you contracted. This

report is an interim report describing what service was

performed and our conclusions based on those initial

tests and observations.

On our arrival at your office Mr. Logan and I was briefed

on the existing situation to wit the possession of cassette

tapes of recorded conversations; being held between

several attorneys and their clientis. These conversations

took place on or about May 20, 1991, between the hours

of 5:00 P.M. and 7:30 P.M. in an area designated as an

attorney/client conference area. The room is located

directly adjacent to the elevator llobby on the 19th floor

of the MCC, Chicago.

Mr. Logan and I listened to the ‘two recovered tape re-

cordings and made notes describing sounds and voices

App. 27

recorded on those tapes. Some items became very appar-

ent. Both tapes had high levels of noise, which may be

described as a “ramble” or “roaring” noise. The signal to

noise ratio, or the ratio of voice level to background

levels, was fairly good on one recording and quite poor on

the second recording. The two tapes were basically of the

same conversation with one tape starting approximately

eight minutes later than the first tape.

We noted the sounds of two different telephone rings,

some “squeaking” sounds and some other unidentifiable

sounds. However, the predominant sound, excepting the

voices recovered, was the rumbling sounds. Mr. Logan

and I, both having extensive experience in monitoring

and recording conversations, immediately agreed that

this sound was probably the result of having a micro-

phone very close to or inside an air duet or that the

ambient noise level in the conference room was very high

due to mechanical devices such as generators. We be-

lieved at that time that the probable cause of the noise

was microphone placement in the immediate vicinity of

the air duct due to the distinctive sound. This type of

audio surveillance is relatively easy, commonly used and

effective. However, it is rather unusual to place the

microphone in an HVAC feed duct. Most surveillance

technicians prefer to place the microphone in the air

return system. The movement of air in large volumes will

create the type of problem we are listening to on the

tapes.

On September 19 we went to the MCC facility where a

physical inspection was performed with the intent of

locating any existing listening devices and to determine,

if possible, where and how the recordings could have

App. 28

taken place. We were met at the facility by the Warden

and by Bureau of Prisons personnel, Lt. Buddy Adels-

berger and Criminal Investigator C.H. Mildner III. These

two officers accompanied us on our survey. We were also

accompanied by Mr. John Mahr of the Joseph Mahr

Investigative Agency of Chicago.

Description of the entry and conference room:

The target room is located on the 19th floor of the MCC

facility. Access to the room is via the entry control portals

located on the first floor. All coats and articles must be

locked prior to entering the facility. Additionally, magne-

tometers leading to the elevators preclude unauthorized

equipment from passing this portal. It is totally incon-

ceivable that anyone from the outside could surrepti-

tiously introduce a microphone and tape recorder into

this building without official sanction.

The visitor enters the elevator, via a man-trap booth,

entry to the various floors are controlled from a remote

location.

As you exit the elevator on the 19th floor the conference

room is located directly in front of you with only one ac-

cess portal which is fully controlled by BOP personnel.

Upon entering the conference room another door, on the

east wall is evident. This door leads to another man-trap

and prisoner isolation room.

The room is approximately 15'4" by 2'4" (Drawing A). The

walls are constructed of concrete cinder block and the

floors and ceilings are constructed of poured reinforced

concrete. There are windows on the west, south, and east

walls covered by heavy metal bar approximately 1/2" by

1/2". The windows are very dirty and although we had no

App. 29

instrument to measure light transmittance we suspect

the windows are glazed and tinted.

As you exit the elevator on the 19th floor the conference

room is located directly in front of you with only one

access portal which is fully controlled by BOP personnel.

Upon entering the conference room another door, on the

east wall is evident. This door leads to another man-trap

and prisoner isolation room.

The ceiling cover was an acoustical tile type of material

glued to the concrete. There was no air space between the

tile and the ceiling structure. All wiring for the lights,

electrical outlets, fire alarm sensor and junction boxes

was surface mounted and in wiremold. The only excep-

tion to this was in the A/C air plenum and located on the

west wall and ceiling. There were seven (7) junction

boxes installed in the plenum and located along the

length of the room with cover plates installed. These

junction boxes apparently served as lighting outlets at

some other time.

The floors are covered by linoleum type of tile glued to

the floor. There was nothing significant about the floor-

ing nor the manner of installation.

Lt. Adelsberger stated that the floors above and below

the 19th floor were all the same.

There were three acoustical access paths leading from

the conference area into horizontally adjacent areas. The

first was the HVAC return path, located on the cast wall.

This is nothing more than a metal grate installed in that

wall under a window. The opposite side of the grate

opens into the prisoner Day Room behind the floor

officers desk. The second and third openings noted were

App. 30

on the north wall. One of these openings, was approxi-

mately 24" by 24" and is installed to service the HVAC

riser ducts immediately behind the north wall and the

plumbing in that area. The second opening was a smaller

door, approximately 14" by 14", located next to the west

wall, which would allow service personnel to control

water service. There were no access ports or acoustical

paths leading to the floor below.

The only acoustical path we found which leads vertically

is via the air conditioner vents installed in an air plenum

located on the west wall and ceiling. The plenum and air

outlets extend the entire length of the room.

Overall, the room is hard from an acoustical viewpoint

which means that recordings would exhibit some echo

effect and makes possible the recovery of conversations

at some distance further than a room with softening

qualities such as drapes, carpet or clever sound absorbing

material. The only sound absorbing material in the room

was the ceiling tile and several boxes and cartons located

in the room. Ceiling tile installed in this way is not very

effective for reducing sound levels as it needs some

airspace above the tile for normal use.

Observations and Tests performed:

Because it is obvious that the recordings were illegal by

their very nature, we were looking for an acoustical path

that would, when monitored or recorded, produce the

same type and levels of sound we had aurally examined

the day before, and allow some degree of privacy or

isolation from the inmates and guards. Our preliminary

tests used an electret microphone, audio amplifier and

headphones.

App. 31

As we moved about the conference area listening to the

ambient sounds of the room and conversations we noted

a total lack of any rumbling or roaring sounds anywhere -

except when the microphone was placed next to or in the

air condition feed vents located on the west wall. Neither

did we recover similar sounds when the microphone was

placed in direct contact with the walls, windows or

flooring. The ambient noise level of the room was very

low and we could not detect any mechanical noise of any

type either with the unaided ear or with the micro-

phone/amplifier combination.

It was obvious to us at the time that an illegal surveil-

lance could not take place in any horizontal direction

using any wired microphone technique. The cinder block

construction is very hard to penetrate, would take a lot

of time, and there was no place to perform this activity

which would not be in direct view of the guards and

inmates. We eliminated the floor for attack because there

was no acoustical path found to the 18th floor and

because the same visual problems would exist on that

floor. The only possible location within the building for

attack was the acoustical path via the HVAC duct located

on the west wall.

We went to the BOP staff offices directly above the

conference room. Entry to the offices was through the

man-trap system located on the east wall, into the -

prisoner day room, up one flight of stairs and into three

locked offices. We did not see any other ingress or egress

portals in this prisoner area. We searched these areas for

active monitoring devices and found none.

We immediately noticed the floor vents and suspected

that the air duct serviced both the conference area and

App. 32

the staff offices. The vents, approximately 6" by 35", are

installed over the duct system and are removed by simply

lifting the vent covers. There are no retaining screws or

other mechanical devices to secure the vents to the floor

plenum.

When we removed the floor vent covers we observed the

air duct below the vent and verified this was the same air

space as the conference room. When we placed a sound

source in the conference room and listened in the rooms

upstairs we were able to recover the sound source aural-

ly. A microphone placed in that air duct as described in

Drawing B recovered room audio from the conference

room with the amplified sounds being very similar, and

effectively identical to the unaided ear, as those sounds

on the recovered tapes.

Mr. Mahr also listened to the recovered sounds for wit-

ness purpose. The officers would not listen to the recov-

ered sounds for verification.

We took a test recording sample with a portable tape

recorder and on playback again the levels, types of

sounds and other characteristics were very close to the

recordings we had examined the previous day.

We went to the three rooms and found that rooms 2031

and 2030 produced sound levels more consistent with the

examined tapes. Room 2030 produced more favorable

results, however, this conclusion is very tentative since

we were using our memory to compare the sounds of the

recovered tapes. |

We searched the air duct visually for evidence of previous

monitoring activity. We found nothing substantial except

that in Room 2031 the felt insulation covering the air

App. 33

duct had been pulled back about 5" from the southwest

top corner of the duct. The glue directly below the felt

was dirty and the “damage” was relatively old. There was

a cleaned area, about the size of a quarter, directly below

the felt which could have been used for a “contact” (as

opposed to acoustical) type of microphone.

Conclusions:

Although tentative and somewhat speculative, we believe

the recordings took place from within the staff office

space directly above the conference area. This is the only

area of the building which faithfully reproduced the

sounds recorded on the recovered tapes.

Additionally, this is the only area we found in which any

privacy could be found by an eavesdropper and is out of

view or access to inmates and/or guard personnel. This

conclusion does, however, impact the integrity of some

BOP personnel since only six keys exist for the offices

(per Mr. Mildner) and anyone entering the office areas

would require a key for entry.

We noted that security bars were being installed on the

air return grates in the doors to these offices. I asked Mr.

Mildner the purpose and he stated there had been some

burglaries of the offices in which some stamps were

stolen with entry via the air return grates.

We do not believe there is any possibility of the defen-

dant’s attorneys recording the conversations. First, there

is no conceivable way in which a tape recorder could be

smuggled past the entry system. Second, it would not

seem possible that any person in the conference area

could place a recorder anywhere in the room and cause

the “rumbling and roaring” sounds recorded on the re-

App. 34

covered tapes. This would require someone to physically

hold a recorder next to the air vents for the entire con-

versation in total view of inmates and guards.

Additionally, when we listened to the tapes we noted at

the very start of the tape recording some sounds, and

possible breathing, that are highly consistent with a

microphone being handled and placed in the vent after

the conversations had started in the conference area. We

believe that person or persons unknown was actually

installing the recording system after the meeting was

started. This would seem to narrow any suspect list to

persons on the 19th floor at approximately 5:00 P.M.,

May 20, 1991.

Although the recovered tapes effectively coveréd the

same meeting they are not identical in quality. One tape

was very poor quality with a signal to noise ratio which

is very low and borders on the unintelligible. The second

tape is of much better quality with an intelligible recov-

ery. We suspect that two recording systems were used

simultaneously. This suspicion is further bolstered by an

apparent difference in AGC (Automatic Gain Control)

activity on the two tapes.

An AGC circuit is common to all tape recorders. Its

purpose is to control the level of sound being recorded.

An AGC circuit attempts to electronically level all sounds

to the recording medium. When a person speaks the AGC

will tend to lower background noise and when the person

stops speaking the background noise will gradually

increase to a higher level. The “attack time”, or the time

span of changing levels, of two recordings appear to my

unaided ear to be different. This would again indicate

two separate recording systems.

App. 35

The time loss of eight minutes between the two tapes

seems to suggest a scenario whereby an eavesdropper

places one system for recovery and then, according to

training, may place a second backup system thereby

missing some of the conversation due to the time it takes

to install the second system. This is common practice for

professional eavesdroppers and law enforcement person-

nel trained in electronic surveillance.

There is another possible answer to the difference in

quality of the two tapes. It is entirely possible that the

poor quality tape was the original and only tape record-

ing, and that the second better quality tape is an edited,

filtered and electronically enhanced copy of the first tape.

Since we do not know what generation of copy was sent

to the attorneys, nor what duplication process or editing

system was used on the original, we can only speculate.

The last preliminary conclusion regards the technical

ability of the eavesdropper. We believe that a person with

more than average skill in audio recovery techniques

recovered and recorded the attorney/client conversations.

Acoustics and the recovery of same is not well understood

by laymen and the use of the air feed vent suggests a

rather in-depth knowledge of this technique. If a second

recorder was used, or if the tapes were electronically

enhanced, this again suggests significantly greater

knowledge of these techniques than the average eaves-

dropper possesses. It does suggest technical training such

as that given to law enforcement personnel.

We are unable to be more specific, or more conclusive,

without extensive electronic examination of the recovered

tapes. If you require more exacting evidence I suggest

App. 36

that the tapes be subjected to electronic examination by

a qualified laboratory or technical staff.

We sincerely appreciate your business and we look for-

ward to serving you again.

Respectfully,

Barry E. Cauley

App. 37

STATE OF ILLINOIS _)

) ss.

COUNTY OF COOK ss)

AFFIDAVIT OF DANIEL OTTO :

Daniel Otto, being first duly sworn, states as follows:

1. In 1991 I was regional director of security for

Ogden Allied Security Services, Inc., which had a con-

tract for physical security with the United States Mar-

shal’s Office in the Northern District of Illinois.

2. In June of 1991 Ogden Allied Security services got

a contract for transportation of federal prisoners. Shortly

thereafter, we began transportation of Rocco Infelise,

Sal DeLaurentis, Robert Bellavia, Harry Aleman, and at

times James Nicholas from the Metropolitan Correctional

Center (“MCC”) to their respective Lawyers’ offices and

later to an office on the second floor at West Jackson

Boulevard in Chicago.

3. Mr. Charles Schue of the Marshal’s Service in-

formed me that the purpose of this transportation was so

that the defendants could meet in a place outside the

MCC to prepare for trial with their attorneys because

agents of the federal government had been caught bug-

ging the defendants at the MCC.

4. I was asked by Mr. Schue if I would eavesdrop on

conversations during the period of transportation report

to the U.S. Marshals of the conversations that I over-

heard.

5. I was asked specifically to listen to conversations

of Mr. Infelise, Mr. DeLaurentis, Mr. Bellavia and Mr.

DiDomenico report them to Mr Schue.

App. 38

6. I attempted to do so but during the transportation

from the MCC to the above locations nothing of any

substance was ever said by these individuals and, hence,

there was nothing of substance to report.

~ 7. In the early morning hours (approximately 3:00

a.m.) of the first day in which the above named defen-

dants were to be transported to the offices at 19 West

Jackson I was present with members of the U.S. Mar-

shal’s Office to chose a location where my men would be

stationed to prevent escapes or disturbances. While there

there were technicians from the FBI who were doing

something with the walls or windows of the office. I could

not determine what, in fact, they were doing, but they

appeared to be placing something into the interior walls

and window sashes which faced Jackson Boulevard.

These men were not part of my team nor were they part

of the U.S. Marshals Service and were identified to me as

being technicians for the FBI.

8. While I was incarcerated for the offense of wire

fraud, serving an 18 month sentence at the Rochester

Medical Center in Rochester, Minnesota, mentioned

these facts to another inmate. I was later contacted by

Patrick A. Tuite and Mr. Allan Ackerman, who asked to

visit me. I gave them permission to see me at Rochester.

9. On March 31, 1997 I related the above information

to Mr. Ackerman and Mr. Tuite during a personal visit at

the Rochester Medical Center.

10. In late September 1997 I was released to my house

and was later visited by Mr. Tuite and his investigator,

Joseph Mahr. I related the same information to them.

This occurred on October 20, 1997 at about 8:00 p.m.

App. 39

11. I have received no remuneration or legal services

from Mr. Tuite, Mr. Ackerman or anyone connected with

the defense.

12. I have not asked for any remuneration or legal ser-

vices, free or paid, from anyone connected to the defense.

13. I have not been promised any remuneration or legal

services, free or paid, from Mr. Tuite, Mr. Ackerman or

anyone connected with the defense.

14. During my visit by Mr, Tuite and Mr. Mahr in

October 1997 we went to a restaurant as Mr. Tuite said

he had not eaten dinner yet. During this meeting Mr.

Tuite purchased a soft drink for me.

FURTHER AFFIANT SAYETH NOT.

/s/ Daniel Otto

DANIEL OTTO

SUBSCRIBED AND SWORN to

before me this 20th day of

November, 1997

/s/ Christine E. Elson

NOTARY PUBLIC

(Official Seal]

Christine E. Elson

Notary Public, State of Illinois

My Commission Expires 3-22-2000

App. 4

STATE OF ILLINOIS )

) ss.

COUNTY OF COOK )

AFFIDAVIT OF JOSEPH P MAHR

Joseph P. Mahr, being first duly sworn, states as fol-

lows:

1. I have been a private detective in the State of

Illinois for 36 years and hold Illinois State License No.42

as a Class A private detective.

2. At the request of Patrick A. Tuite I located Daniel

Otto who had been released from federal custody.

3. On October 20, 1997 Mr. Tuite and I met with

Daniel Otto at his home in Hanover Park and traveled to

a nearby restaurant on Barrington Road.

4. Mr. Tuite ate dinner while we interviewed Mr.

Otto. Mr. Tuite purchased a soft drink for me and Mr.

Otto.

5. I have read Mr. Otto’s affidavit and the facts set

forth in paragraphs 1, 2, 3, 4, 5, 6, 7, 10, 11, and 12 of

that affidavit are what he related to Mr. Tuite and me on

October 20, 1997 at the restaurant.

FURTHER AFFIANT SAYETH NOT.

/s/ Joseph P. Mahr

JOSEPH P. MAHR

Ann. 41

SUBSCRIBED AND SWORN to

before me this 20th day of

November, 1997

/s/ Christine E. Elson

NOTARY PUBLIC

[Official Seal]

Christine E. Elson

Notary Pubiic, State of Illinois

My Commission Expires 3-22-2000

App. 42

oli

FEDERAL BUREAU OF INVESTIGATION

Date of transcription 12/6/91

Guy R. Legal, MIMI, telephone BEM was tele-

phonically interviewed. Legal, whose date of birth is June

15, 1954 and has a social security account number of

MMMB was formerly employed by the Metropolitan

Correctional Center (MCC) as a Security Officer from

May 20, 1989 to April 7, 1991. Legal is presently em-

ployed by the Department of Defense (DOD), United

States Air Force (USAF) as a Ramp security specialist,

telephone (312) 825-6224. Legal was advised of the na-

ture and official purpose of the interview and thereafter

furnished essentially the following information:

Legal, while employed as a security officer at MCC, had

the occasion to work for a total of 60 days on the 19th

floor of MCC guarding the defendants in the INFELISE

investigation. One defendant, known to Legal as Harry

Aleman, once said to Legal that he thought the Federal

Bureau of Investigation (FBI) was bugging the room

where the INFELISE defendants were meeting with

their attorneys on the 19th floor. Legal also recalls Bell-

avia and DeLaurentis also making similar comments.

Legal worked rotating shifts at MCC and would work

on the 19th floor for several days at a time and then be

rotated to another area within MCC. Legal recalls that

he remembered once seeing a silver colored object hang-

ing from the ceiling in the room where the INFELISE

defendants met with their attorneys on the 19th floor.

App. 43

Legal recalls that if he was looking into the room from

the security officer’s desk on the 19th floor, the object

that he saw would be in the left hand corner of the room

on the outside wall of the building. He recalls the object

extended approximately 1/8 of an inch from the ceiling

and may have been part of a pipe or an object used in the

construction of the ceiling in that room.

Legal recalls that there was an area that could be

referred to as the 20th floor which housed some offices

for the case managers and counselors at MCC. In addi-

tion to these offices there was also a restroom on that

floor and numerous people had access to that floor. Legal

qualified this by saying those having access to the 20th

floor would have to be MCC

Investigation on 12/3/91 at Chicago, Illinois File #

2a,

by SSA John E. Roberts [initialed] JER:jmg

Date Dictated 12/5/91

A-450

App. 44

Continuation of FD-302 of Guy R. Legal, on 12/3/91,

page 2

personnel and/or incarcerated individuals at that facility.

Legal has no knowledge of any visitor or law enforcement

personnel accessing the 20th floor at MCC.

Legal recalls there was a security officer by the name

of Caprione (phonetic) who was “good buddies” with the

INFELISE defendants. Caprione (phonetic) once told

Legal that the FBI had nothing on the INFELISE de-

fendants and the FBI was “a bunch of shit”. Legal can

recall occasions when Aleman would ask him where

Caprione (phonetic) was and to call him (Caprione) so

they could meet.

It is Legal’s opinion that the room was not bugged and

if recordings of conversations were made they could have

been done by the attorneys who then gave them to the

news media. Legal advised he never knew what the

attorneys were bringing into the MCC facility because

they were not patted down by security officers when they

entered the facility.

At the conclusion of the interview Legal was asked if he

ever brought to anyone’s attention the object he observed

protruding from the ceiling in the room used by the

INFELISE defendants and their attorneys. Legal re-

sponded that he did not report this information to anyone

and never thought anything of the object.

A-451