Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
UNITED STATES v. DORFMAN
June 1, 1982
UNITED STATES OF AMERICA, PLAINTIFF,
ALLEN M. DORFMAN, ROY M. WILLIAMS, JOSEPH LOMBARDO, THOMAS F. O'MALLEY, AND ANDREW G. MASSA, ALSO KNOWN AS AMOS MASSA, DEFENDANTS.
The opinion of the court was delivered by: Marshall, District Judge.
Defendants are charged in an eleven count indictment with
conspiracy to bribe a United States Senator in violation of
18 U.S.C. § 201(b)(1) and 371 (1976), travel in interstate commerce
with intent to commit bribery in violation of 18 U.S.C. § 1952
(1976), and nine separate counts of wire fraud stemming from an
alleged scheme to defraud the Central States, Southeast and
Southwest Areas Pension Fund ("Fund") of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America ("Teamsters") of the loyal services of two of the
defendants, and attempting to obtain money and property by means
of false pretenses in violation of 18 U.S.C. § 1343 (1976). On
December 9, 1981 we denied defendants' motions to dismiss the
indictment. See United States v. Dorfman, 532 F. Supp. 1118
(N.D.Ill. 1981). That opinion describes in detail the nature and
scope of the charges against the defendants and we will not
repeat the description here except where particular facts are
The written materials submitted to the court by the defendants
and the government consist of over 950 pages of briefs and over
a thousand pages of supporting documents. In addition, 14 days of
testimony was heard on certain issues.
While we have considered each brief and all the supporting
material submitted by the parties, it would be both unnecessary
and unworkable to respond to every question of fact and law
joined by counsel. Our discussion will be restricted to those
factual and legal issues necessary to resolve the questions set
forth below. At the time of the evidentiary hearing we advised
the parties that, on those issues, the only evidence upon which
we would rely was the evidence offered and received at the
hearing and not unproved allegations made by way of briefs or
appendices.*fn1 We adhere to that position in rendering this
The arguments pressed by defendants in support of their motions
to suppress break down into three categories: the sufficiency of
the applications to and orders of the court authorizing the
electronic surveillance at Amalgamated Insurance Agency Services,
Inc. ("Amalgamated") under the probable cause standard of the
fourth amendment and Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 (1976 & Supp.II
1978) ("Title III"); the good faith of the government in the
representations made to the authorizing judge for purposes of
securing the original warrant and extensions;*fn2 and the
government's compliance during the course of the electronic
surveillance with the requirements of Title III.
Defendants attack the original application and order of January
29, 1979, as well as extension applications and orders issued on
March 1, March 30, April 7 and April 28. The law with respect to
the issue of probable cause, the allegations of government
misconduct and compliance with Title III is of course the same
for each time period. However, defendants' attack is predicated
upon facts often peculiar to particular applications or orders.
Thus, while we set forth a general discussion of the law below,
we treat separately the issue of probable cause and the challenge
to the government's good faith as to each application and order.
In late 1978, the United States Department of Justice and the
Federal Bureau of Investigation ("the government") initiated an
investigation of Allen Dorfman ("Dorfman")
under the code name "Pendorf."*fn3 As part of the investigation, the
government applied to Chief Judge James B. Parsons of this court
for authority, under Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510-20 (1976
& Supp.II 1978), to place a wiretap on the telephones at
Amalgamated, which was Dorfman's place of business. The
application was made and granted on January 29, 1979. Under the
wiretap order issued by Chief Judge Parsons, the government was
required to return to the court every thirty days in order to
obtain authority to extend the tap.*fn4
Defendants challenge the validity of the original January 29
order, as well as the extensions granted by Chief Judge Parsons
on March 1 and 30, 1979. Defendants also attack the validity of
an April 7, 1979 order which allowed the tap to be expanded to an
additional telephone line at Amalgamated, and which authorized
the placement of electronic listening devices in the offices of
Dorfman and William Webbe, another employee of Amalgamated.
Defendants do not specifically challenge the court orders which
authorized electronic surveillance of Amalgamated after April 7,
but do seek suppression of the results of the subsequent
surveillance as fruits of a poisonous tree, see generally Wong
Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441
(1963); 18 U.S.C. § 2515 (1976).
Defendants' basic attack on the surveillance orders is on two
fronts. First, they claim that the applications for the orders
which are the equivalent of warrants, were facially insufficient,
in that the affidavits submitted to the court did not recite
facts sufficient to create probable cause to authorize electronic
surveillance. Second, they claim that the affidavits and
applications contain intentional and/or reckless material
misrepresentations of fact which void the warrants and require
that the evidence obtained through the surveillance be suppressed
under the rule of Franks v. Delaware, 438 U.S. 154, 98 S.Ct.
2674, 57 L.Ed.2d 667 (1978).*fn5 Before addressing the particular
by defendants, we review the principles which underlie them.
It is now beyond question that the overhearing of conversations
by means of electronic surveillance invades the expectations of
privacy protected by the fourth amendment, and constitutes a
"seizure" within the meaning of the amendment. See Katz v. United
States, 389 U.S. 347, 351-53, 88 S.Ct. 507, 511-12, 19 L.Ed.2d
576 (1967). The fourth amendment requires that surveillance be
authorized by a warrant issued by a neutral judicial officer. See
id. at 354-59, 88 S.Ct. at 512-15; Berger v. New York,
388 U.S. 41, 54-55, 87 S.Ct. 1873, 1881-82, 18 L.Ed.2d 1040 (1967). This
is because the Constitution demands that the difficult decision
whether to invade the privacy interests protected by the fourth
amendment should be made "by a neutral and detached magistrate
instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime." Johnson v. United
States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).
Consequently, interception of oral or telephonic communications
by means of electronic surveillance which has not been authorized
by a valid warrant must be suppressed under both Title III and
the Constitution. See 18 U.S.C. § 2518(10) (Supp.II 1978);
Alderman v. United States, 394 U.S. 165, 171, 89 S.Ct. 961, 965,
22 L.Ed.2d 176 (1969).*fn6
The text of the fourth amendment requires that warrants issue
only upon "probable cause."*fn7 In order to determine whether the
orders issued in this case were based on probable cause, we must
review the applications and affidavits and determine whether they
reveal facts and circumstances within the affiant's personal
knowledge, or of which he had reasonably trustworthy information,
sufficient to warrant a man of reasonable caution to believe that
criminal activity was afoot. Berger v. New York, 388 U.S. 41, 55,
87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967); McCray v. Illinois,
386 U.S. 300, 304, 87 S.Ct. 1056, 1058-59, 18 L.Ed.2d 62 (1967);
Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142
(1964); Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168,
171, 4 L.Ed.2d 134 (1959). Probable cause is only a reasonable
probability of criminal activity; it does not require certainty
or even a prima facie showing of criminal activity. Spinelli v.
United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d
637 (1969). Accordingly, defendants' position, often expressed in
their analysis of the affidavits and applications for orders,
that the presence of innocent explanations for much of the
information presented in the applications (e.g. innocent business
explanations of long distance telephone calls between Amalgamated
and Nevada gambling casinos) vitiates the warrants, must be
rejected. Even if there is an innocent explanation, as long as
there is a reasonable probability that there is criminal activity
afoot, despite the presence of other possibilities, probable
cause is present. See, e.g., United States v. Anton,
633 F.2d 1252, 1254 (7th Cir. 1980), cert. denied, 449 U.S. 1084, 101
S.Ct. 870, 66 L.Ed.2d 808 (1981); United States v. McLemore,
573 F.2d 1154, 1157 (10th Cir. 1978); United States v. Fury,
554 F.2d 522, 531 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53
L.Ed.2d 1095 (1977).
The probable cause determination is made by examining only the
four corners of the application and affidavits. "It is elementary
that in passing on the validity of a warrant, the reviewing court
may consider only information brought to the magistrate's
attention." Spinelli v. United States, 393 U.S. 410, 413 n. 3, 89
S.Ct. 584, 587 n. 3, 21 L.Ed.2d 637 (1969) (emphasis in original)
(quoting Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509,
1511 n. 1, 12 L.Ed.2d 723 (1964)).*fn8 Furthermore, when making the
determination, it is important to construe the affidavits in a
realistic and non-technical manner. United States v. Harris,
403 U.S. 573, 579, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723 (1971)
If the teachings of the Court's cases are to be
followed and the constitutional policy served,
affidavits for search warrants, such as the one
involved here, must be tested and interpreted by
magistrates and courts in a commonsense and realistic
fashion. They are normally drafted by nonlawyers in
the midst and haste of a criminal investigation.
Technical requirements of elaborate specificity once
exacted under common law pleadings have no proper
place in this area. A grudging or negative attitude
by reviewing courts toward warrants will tend to
discourage police officers from submitting their
evidence to a judicial officer before acting.
United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745,
13 L.Ed.2d 684 (1965).
In Title III Congress codified the probable cause requirement
with a three-tiered test. See United States v. Armocida,
515 F.2d 29, 35 (3d Cir.), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46
L.Ed.2d 84 (1975); United States v. Lyons, 507 F. Supp. 551, 554
(D.Md. 1981). The statute provides that an order may issue
if the judge determines on the basis of the facts
submitted by the applicant that —
(a) there is probable cause for belief that an
individual is committing, has committed, or is about
to commit a particular offense enumerated in section
2516 of this chapter;
(b) there is probable cause for belief that
particular communications concerning that offense
will be obtained through such [oral or wire]
(d) there is probable cause for belief that the
facilities from which, or the place where, the wire
or oral communications are to be intercepted are
being used, or are about to be used, in connection
with the commission of such offense, or are leased
to, listed in the name of, or commonly used by such
18 U.S.C. § 2518(3) (1976).
The statutory standard is identical to the constitutional
standard requiring reasonable grounds to believe that the tap
will produce evidence of a crime. United States v. Hyde,
574 F.2d 856, 862 (5th Cir. 1978); United States v. Fury, 554 F.2d 522,
530 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53
L.Ed.2d 1095 (1977); United States v. Armocida, 515 F.2d 29, 36,
40 (3d Cir.), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46
L.Ed.2d 84 (1975); United States v. Falcone, 505 F.2d 478, 481
(3rd Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43
L.Ed.2d 432 (1975); United States v. James, 494 F.2d 1007, 1015
(D.C.Cir. 1974); United States v. Kleve, 465 F.2d 187, 190-91
(8th Cir. 1972); United States v. Baynes, 400 F. Supp. 285, 295 n.
17 (E.D.Pa. 1975), aff'd mem., 517 F.2d 1399 (3d Cir. 1976);
United States v. DeCesaro, 349 F. Supp. 546, 549 (E.D.Wis. 1972),
rev'd on other grounds, 502 F.2d 604 (7th Cir. 1974); United
Cantor, 328 F. Supp. 561, 565 (E.D.Pa. 1971), aff'd, 469 F.2d 435
(3d Cir. 1972).*fn9
It necessarily follows from what has been said that an
application for a Title III order or fourth amendment warrant is
insufficient if it contains no more than conclusory statements
indicating that the government agents believe they have probable
cause. If this were enough, there would be no meaningful basis
for review by a magistrate and the fourth amendment's protections
would be secure only in the discretion of police officers, which
is the very result the warrant requirement seeks to avoid.
Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12
L.Ed.2d 723 (1964); Johnson v. United States, 333 U.S. 10, 14, 68
S.Ct. 367, 369, 92 L.Ed. 436 (1948). Accordingly, the application
must contain sufficient underlying facts so that the magistrate
can make an independent determination as to the existence of
probable cause. Ventresca, 380 U.S. at 108-09, 85 S.Ct. at
745-46; Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13
L.Ed.2d 142 (1964); Giordenello v. United States, 357 U.S. 480,
486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958). However, once
the magistrate or, in this case, the issuing judge has made the
determination, it is entitled to deference from a reviewing
court. See Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct.
584, 590, 21 L.Ed.2d 637 (1969); Aguilar, 378 U.S. at 111, 84
S.Ct. at 1512; Jones v. United States, 362 U.S. 257, 270-71, 80
S.Ct. 725, 735-36, 4 L.Ed.2d 697 (1960).
Sometimes, direct evidence of observations of criminal activity
is presented to the issuing magistrate in an application for a
warrant. However, more often direct evidence is not submitted to
the magistrate. Rather, hearsay is used; an affiant will report
to the court information he has learned which leads him to
believe that there is probable cause to issue a warrant. When
hearsay is used a two-pronged test is applied: the application
must set out the underlying circumstances from which the hearsay
declarant, usually a government informant,*fn10 reached his
conclusions, and it must set out underlying circumstances from
which the affiant concluded that the hearsay informant is
reliable. See Spinelli, 393 U.S. at 413, 89 S.Ct. at 587;
Aguilar, 378 U.S. at 114-15, 84 S.Ct. at 1513-14.*fn11
The first prong is directed toward the informant's conclusion
that criminal activity is afoot and will be discovered by
electronic surveillance. To satisfy this prong, there must be a
reasonable probability that the interception will discover
criminal activity. Mere suspicion is insufficient. Spinelli, 393
U.S. at 419, 89 S.Ct. at 590. Moreover, the activity that is
alleged must be criminal; innocent activity, no matter how
suspicious, is insufficient. See Reid v. Georgia, 448 U.S. 438,
100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam); Spinelli, 393
U.S. at 414, 418, 89 S.Ct. at 588, 590.
The inquiry is whether, assuming the veracity of the informant,
there is an adequate basis for the informant's conclusion that
criminal activity is afoot. United States v. Button,
653 F.2d 319, 323 (8th Cir. 1981) (citing 1 W. LaFave, Search and Seizure
§ 3.3 (1978)). The informant must indicate the source or basis
for his knowledge, so that the magistrate can independently
evaluate the reliability of the informant's conclusions. Aguilar,
378 U.S. at 112-14, 84 S.Ct. at 1512-13; Giordenello v. United
States, 357 U.S. 480, 486-87, 78 S.Ct. 1245, 1250-51, 2 L.Ed.2d
1503 (1957). In short, the affidavit must indicate how the
informant drew his conclusions, see Spinelli, 393 U.S. at 416, 89
S.Ct. at 589; United States v. Button, 653 F.2d at 323-24; United
States v. Karathanos, 531 F.2d 26, 30-31 (2d Cir.), cert. denied,
428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976); United
States v. Long, 439 F.2d 628, 630 (D.C.Cir. 1971), so that the
magistrate can determine that the informant is acting on the
basis of something more substantial than a casual rumor,
Spinelli, 393 U.S. at 416, 89 S.Ct. at 589.
Defendants in the case at bar interpret the first prong to
require that the affidavit specifically state what the informant
"saw, touched, heard or smelled firsthand." Such a requirement is
unnecessary, too strict, and at odds with Ventresca's prohibition
of "[t]echnical requirements of elaborate specificity," 380 U.S.
at 108, 85 S.Ct. at 745. As long as the context of the affidavit,
read as a whole and in a commonsense fashion, reveals that the
accusations are sufficiently detailed "that the magistrate may
know he is relying on something more substantial than a casual
rumor circulating in the underworld or an accusation based on an
individual's general reputation," Spinelli, 393 U.S. at 416, 89
S.Ct. at 589, the affidavit is sufficient. The specificity
defendants seek is not required if the context in which the
charges are made provides a basis for crediting the accusations
as substantial. See United States v. Harris, 403 U.S. 573, 91
S.Ct. 2075, 29 L.Ed.2d 723 (1971) (plurality opinion); United
States v. Landis, 632 F.2d 66, 68 (8th Cir. 1980), cert. denied,
450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981); United
States v. Carmichael, 489 F.2d 979, 981 (7th Cir.), vacated in
part on other grounds, 489 F.2d 983 (7th Cir. 1973) (en banc);
United States v. Wilson, 479 F.2d 936 (7th Cir. 1973) (en banc).
Whether there is a basis for relying on the information
contained in the application and affidavit depends in part on its
timeliness. Probable cause must exist at the time the magistrate
issues the warrant, not merely at some point in the past. Sgro v.
United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260
(1932); 1 W. LaFave, Search and Seizure § 3.7(a) (1978). The
affidavit must demonstrate that the information is not stale, for
timeliness "cannot be left to mere inference or conjecture."
Sgro, 287 U.S. at 211, 53 S.Ct. at 140; see United States v.
Boyd, 422 F.2d 791 (6th Cir. 1970); Rosencranz v. United States,
356 F.2d 310, 317-18 (1st Cir. 1966); Commonwealth v. Simmons,
450 Pa. 624, 301 A.2d 819 (1973). This does not mean, however,
that every item of information in the affidavit must be
specifically dated. If the overall context of the affidavit
indicates that the information is timely, the affidavit is
sufficient. See United States v. Dauphinee, 538 F.2d 1 (1st Cir.
1976); State v. McCormick, 584 S.W.2d 821 (Tenn.Cr.App. 1979); 1
W. LaFave, supra p. 13 § 3.7(b). Context is critical as there are
no hard and fast rules for staleness of information. Staleness
can only be judged by reference to the particular type of crime.
Thus, when the affidavit recites ongoing criminal activity of a
type likely to continue over a substantial period of time, the
timeliness of the information in the affidavit is less important.
See Andresen v. Maryland, 427 U.S. 463, 478 n. 9, 96 S.Ct. 2737,
2747 n. 9, 49 L.Ed.2d 627 (1976); United States v. Button,
653 F.2d 319, 325 (8th Cir. 1981); United States v. Perry,
643 F.2d 38, 50 (2d Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70
L.Ed.2d 115 (1981); United States v. Webster, 639 F.2d 174,
178-79 (4th Cir. 1981); United States v. Vazquez, 605 F.2d 1269,
1281-82 (2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62
L.Ed.2d 408 (1979); United States v. Weinrich, 586 F.2d 481,
491-92 (5th Cir. 1978); United States v. Brinklow, 560 F.2d 1003,
1005-06 (10th Cir. 1977); U.S. v. Kirk, 534 F.2d 1262, 1274
(8th Cir. 1976), U.S. v. Steeves, 525 F.2d 33, 38 (8th Cir.
1975); United States v. Rahn, 511 F.2d 290, 292 (10th Cir. 1975);
Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973). See also
United States v. Harris, 403 U.S. 573, 579 n. *, 91 S.Ct. 2075,
2080 n. *, 29 L.Ed.2d 723 (1971) (plurality opinion). "[W]here the
affidavit properly recites facts indicating activity of a
protracted and continuous nature, a course of conduct, the
passage of time becomes less important." United States v.
Johnson, 461 F.2d 285, 287 (10th Cir. 1972).
Staleness has a unique pertinence to the applications for
extensions of the original January 29 order. The purpose of the
original application was to convince Chief Judge Parsons that
electronic surveillance would produce evidence of criminal
activity. However, once surveillance commenced, the best
indicator of whether probable cause continued was the fruits of
the actual surveillance conducted, rather than the informants'
predictions of what future surveillance might uncover. Thus, as
time went by, the informants' information became relatively more
stale, and the results thus far obtained relatively more
important. See United States v. Bynum, 360 F. Supp. 400, 404
(S.D.N.Y.), aff'd, 485 F.2d 490 (2d Cir. 1973). However, it is
again important to note that this inquiry is critically dependent
on context. As with any staleness inquiry, the passage of time is
less important where the criminal activity alleged is of a
protracted nature. The amount of progress that must be made in a
given thirty day period in order to justify an extension will
depend on the nature of the crime involved.
Once it is established that the informant's conclusions rest on
personal knowledge or information that is both reliable and
timely, the focus of inquiry shifts to the second prong of the
Aguilar/Spinelli test. The affidavit must be examined to see if
it contains sufficient underlying circumstances so that the
magistrate is justified in relying on the veracity of the
informant. As Professor LaFave has explained, "under the second
prong of Aguilar, properly characterized the `veracity' prong,
facts must be brought before the judicial officer so that he may
determine either the inherent credibility of the informant or the
reliability of his information on this particular occasion." 1 W.
LaFave, supra p. 13 § 3.3(a) at 502 (footnote omitted) (emphasis
The focus of the veracity inquiry is whether there is a
substantial basis for considering the informant credible. See
United States v. Harris, 403 U.S. 573, 580-81, 91 S.Ct. 2075,
2080-81, 29 L.Ed.2d 723 (1971) (plurality opinion). Some kinds of
information are inherently credible, such as eyewitness accounts
of disinterested citizens acting as witnesses. See id. at 599, 91
S.Ct. at 2089 (Harlan, J., dissenting); cf. Jaben v. United
States, 381 U.S. 214, 224, 85 S.Ct. 1365, 1370, 14 L.Ed.2d 345
(1965) ("[U]nlike narcotics informants, for example, whose
credibility may often be suspect, the sources in this tax evasion
case are much less likely to produce false or untrustworthy
information."). See generally United States v. Wilson,
479 F.2d 936, 940 (7th Cir. 1973) (en banc). Information provided by
confidential informants who are themselves members of the
underworld, such as is claimed by the FBI with respect to its
informants in this case, lack this inherent reliability. However,
there are a variety of ways in which their credibility can be
established. For example, additional evidence which corroborates
the informant's allegations in important respects can be used.
See Harris, 403 U.S. at 581, 91 S.Ct. at 2080; Spinelli, 393 U.S.
at 415-17, 89 S.Ct. at 588-89; Jones v. United States,
362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960); Draper v.
United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
In re DeMonte, 674 F.2d 1169 at 1173 (7th Cir. March 24, 1982).*fn12
The fact that the informant has
made a statement against his penal interest enhances credibility.
See Harris, 403 U.S. at 583-85, 91 S.Ct. at 2081-82; United
States v. Davis, 617 F.2d 677, 693 (D.C.Cir. 1979); United States
v. Hyde, 574 F.2d 865, 863 (5th Cir. 1978); United States v.
DeCesaro, 502 F.2d 604, 608-09 (7th Cir. 1974); United States v.
Damitz, 495 F.2d 50, 55 (9th Cir. 1974); United States v.
Carmichael, 489 F.2d 983, 986 (7th Cir. 1973) (en banc); United
States v. Fina, 405 F. Supp. 267, 271-72 (E.D.Pa. 1975); United
States v. Leta, 332 F. Supp. 1357, 1362 (M.D.Pa. 1971).*fn13 A past
record of providing reliable information is an indicia of
reliability. See United States v. Vazquez, 605 F.2d 1269, 1281
(2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d
408 (1979); United States v. Vento, 533 F.2d 838, 844 (3d Cir.
1976); United States v. McHale, 495 F.2d 15, 17-18 (7th Cir.
1974); United States v. Mainello, 345 F. Supp. 863, 869-70
(E.D.N.Y. 1972); United States v. Becker, 334 F. Supp. 546, 548
(S.D.N.Y. 1971). In cases such as this where there is more than
one informant, the informants can corroborate each other. By
telling consistent yet independent stories, the informants
provide "cross-corroboration," and enhance the reliability of the
application as a whole. See In re DeMonte, 674 F.2d 1169 at 1173
(7th Cir. 1982); United States v. Vazquez, 605 F.2d 1269, 1281
(2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d
408 (1979); United States v. Clements, 588 F.2d 1030, 1034-35
(5th Cir. 1979), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60
L.Ed.2d 243 and 441 U.S. 936, 99 S.Ct. 2062, 60 L.Ed.2d 666
(1980); United States v. Weinrich, 586 F.2d 481, 488-90 (5th Cir.
1978); United States v. Hyde, 574 F.2d 856, 863-64 (5th Cir.
1978); United States v. Askins, 351 F. Supp. 408, 414 (D.Md.
1972); United States v. Becker, 334 F. Supp. 546, 549-50 (S.D.N.Y.
1971). Telephone toll records may enhance reliability, by
corroborating information that alleged co-conspirators talk to
each other on the phone. See United States v. Webster,
639 F.2d 174, 178 (4th Cir. 1981); United States v. Weinrich,
586 F.2d 481, 490 (5th Cir. 1978); United States v. Hyde, 574 F.2d 856,
863 (5th Cir. 1978); United States v. Best, 363 F. Supp. 11, 18-19
(S.D.Ga. 1973).*fn14 Finally, the specificity of the information
provided can in itself be an indicia of reliability. See United
States v. Unger, 469 F.2d 1283, 1286-87 (7th Cir. 1972); United
States v. Roman, 451 F.2d 579, 581 (4th Cir. 1971); see generally
Harris, 403 U.S. at 579-80, 91 S.Ct. at 2079-80.*fn15
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d
667 (1978), the Supreme Court held that, under certain
circumstances, the fourth amendment requires that defendants be
permitted to go behind the face of an application for a search
warrant and challenge the truthfulness of the allegations it
[W]e hold that, where the defendant makes a
substantial preliminary showing that a false
statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding
of probable cause, the Fourth Amendment requires that
a hearing be held at the defendant's request. In the
event that at that hearing the allegation of perjury
or reckless disregard is established by the defendant
by a preponderance of the evidence, and, with the
affidavit's false material set to one side, the
affidavit's remaining content is insufficient to
establish probable cause, the search warrant must be
voided and the fruits of the search excluded to the
same extent as if probable cause was lacking on the
face of the affidavit.
438 U.S. at 155-56, 98 S.Ct. at 2676-77.
Thus, there are three elements to a Franks claim, (i) a false
statement, (ii) which is made by the affiant with knowledge of
the falsity, or with reckless disregard for the truth, (iii) that
is material, meaning that without the false statement the
affidavit would not have been sufficient to establish probable
Defendants claim that the applications in the instant case
violate Franks.*fn17 However, Franks indicates that defendants must
do more than merely allege material misrepresentations in order
to obtain an evidentiary hearing on their allegations.
To mandate an evidentiary hearing, the challenger's
attack must be more than conclusory and must be
supported by more than a mere desire to
cross-examine. There must be allegations of
deliberate falsehood or of reckless disregard for the
truth, and those allegations must be accompanied by
an offer of proof. They should point out specifically
the portion of the warrant affidavit that is claimed
to be false; and they should be accompanied by a
statement of supporting reasons. Affidavits or sworn
or otherwise reliable statements of witnesses should
be furnished, or their absence satisfactorily
explained. Allegations of negligence or innocent
mistake are insufficient.
438 U.S. at 171, 98 S.Ct. at 2684.
Franks requires that defendants make a "substantial preliminary
showing," 438 U.S. at 155, 98 S.Ct. at 2676, in order to
demonstrate the need for a hearing. Absent such a showing, a
hearing is not warranted.
Franks also limits the kind of falsity which may be the subject
of a challenge. While Franks requires that the warrant affidavit
[t]his does not mean "truthful" in the sense that
every fact recited in the warrant affidavit is
necessarily correct, for probable cause may be
founded upon hearsay and upon information received
from informants, as well as upon information within
the affiant's own knowledge that sometimes must be
garnered hastily. But surely it is to be "truthful"
in the sense that the information put forth is
believed or is appropriately accepted by the affiant
438 U.S. at 165, 98 S.Ct. at 2681. Franks only permits challenges
to intentional or
reckless misrepresentations of the affiant himself. Id. at
163-64, 171, 98 S.Ct. at 2680-81, 2684; see also Rugendorf v.
United States, 376 U.S. 528, 532-33, 84 S.Ct. 825, 827-28, 11
L.Ed.2d 887 (1964). The fact that a third party lied to the
affiant, who in turn included the lies in a warrant affidavit,
does not constitute a Franks violation. A Franks violation occurs
only if the affiant knew the third party was lying, or if the
affiant proceeded in reckless disregard of the truth. Therefore,
allegations that hearsay contained in a warrant application is
false, or that an informant whose story was recited by an affiant
was lying, are insufficient to require a Franks hearing, since
the falsity or recklessness alleged is not that of the affiant,
but of a third party. See United States v. Skramstad,
649 F.2d 1259, 1265 (8th Cir. 1981); United States v. Schauble,
647 F.2d 113, 117 (10th Cir. 1981); United States v. Smith, 635 F.2d 1329,
1334 (8th Cir. 1980); United States v. Arrington, 618 F.2d 1119,
1125 (5th Cir. 1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 876,
66 L.Ed.2d 812 (1981); United States v. Luschen, 614 F.2d 1164,
1172-73 (8th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2161,
64 L.Ed.2d 793 (1980); United States v. Barnes, 604 F.2d 121,
152-53 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct.
1833, 64 L.Ed.2d 260 (1980); United States v. Brian, 507 F. Supp. 761,
764 (D.R.I. 1981); United States v. Weingartner, 485 F. Supp. 1167,
1182-83 (D.N.J. 1979), appeal dismissed, 642 F.2d 445 (3d
Cir. 1981); United States v. DePalma, 461 F. Supp. 800, 814-15
(S.D.N.Y. 1978); Schneider v. State, 269 Ark. 245, 599 S.W.2d 730
(1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d
109 (1981); Misenheimer v. State, 268 Ind. 274, 279-80,
374 N.E.2d 523, 527-28 (1978); State v. Hermerding, 5 Kan. App. 797,
626 P.2d 210 (1981); State v. Babbit, 363 So.2d 690 (La. 1978);
State v. White, 391 A.2d 291 (Me. 1978); State v. Stickelman,
207 Neb. 429, 299 N.W.2d 520 (1980); Taylor v. State, 604 S.W.2d 175
(Tex.Crim.App. 1980); State v. Larsen, 26 Wn. App. 564,
613 P.2d 542 (1980); 2 W. LaFave, supra p. 13 § 4.4(b). See also United
States v. Anderson, 542 F.2d 428, 432-33 (7th Cir. 1976); United
States v. Carmichael, 489 F.2d 983, 989 (7th Cir. 1973) (en
banc); United States v. Sultan, 463 F.2d 1066, 1070 (2d Cir.
1972); United States v. Kemp, 421 F. Supp. 563, 569-70 (W.D.Pa.
1976); Theodor v. Superior Court, 8 Cal.3d 77, 501 P.2d 234, 104
Cal.Rptr. 226 (1972); State v. Baca, 84 N.M. 513, 505 P.2d 856
Furthermore, even when there is an allegation that the affiant
knew the informant was lying, was reckless in reporting the
story, or deliberately or recklessly misreported the informant's
story to the court, the allegation must be accompanied by the
required offer of proof. For example, a claim that the informant
did not exist, or did not report the information attributed to
him in the warrant affidavit, if unsupported by substantial
corroborating evidence, does not entitle a defendant to a Franks
hearing. See, e.g., People v. Coleman, 91 Ill. App.3d 646, 651, 47
Ill.Dec. 548, 551, 415 N.E.2d 553, 557 (1980); People v.
Poindexter, 90 Mich. App. 599, 282 N.W.2d 411 (1979); State v.
Cervantes, 92 N.M. 643, 593 P.2d 478 (Ct.App.), cert. denied,
92 N.M. 621, 593 P.2d 62 (1979).*fn19
Franks addresses explicitly only the problem of
misrepresentations contained in the four corners of the warrant
affidavit. However, defendants contend that Franks also applies
to omissions of material information from an affidavit. It does
seem to be the case that the considerations underlying Franks
apply with equal force to intentional or reckless material
omissions. In Franks, the Court noted that the fourth amendment's
protections would be seriously undermined if materially false
warrant affidavits could go unchallenged.
Because it is the magistrate who must determine
independently whether there is probable cause, it
would be an unthinkable imposition upon his authority
if a warrant affidavit, revealed after the fact to
contain a deliberately or recklessly false statement,
were to stand beyond impeachment.
438 U.S. at 165, 98 S.Ct. at 2681 (citations omitted).
Consequently, the Court concluded that unless challenges to the
veracity of warrant affidavits were permitted, the warrant clause
of the fourth amendment "would be reduced to a nullity [once] a
police officer was able to use deliberately falsified allegations
to demonstrate probable cause, and, having misled the magistrate,
then was able to remain confident that the ploy was worthwhile."
438 U.S. at 168, 98 S.Ct. at 2682.
If the government could intentionally or recklessly omit
material facts from warrant affidavits and applications, the same
danger would be created. If the government had unfettered power
to pick and choose which facts to present to the magistrate
regardless of how misleading the presentations were, the
magistrate's review of the affidavit would be rendered
meaningless. The magistrate would not be provided with a fair
opportunity to review the government's evidence in making the
probable cause determination. He would perform his crucial role
at the whim, caprice or duplicity of the governmental agents
involved in the case. Such a result cannot be squared with
Franks' demand that the government not frustrate the magistrate's
review of probable cause by deliberately or recklessly providing
misleading information. Under the rationale of Franks, defendants
must be permitted to challenge an affidavit on the basis of the
intentional or reckless omission of material facts from the
affidavit. United States v. Willis, 647 F.2d 54, 58 (9th Cir.
1981); United States v. House, 604 F.2d 1135, 1141 & n. 9 (8th
Cir. 1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63
L.Ed.2d 764 (1980); United States v. Lace, 502 F. Supp. 1021,
1045-56 (D.Vt. 1980); United States v. Lewis, 425 F. Supp. 1166,
1173 (D.Conn. 1977); Schmid v. State, 615 P.2d 565 (Alaska 1980);
People v. Kurland, 28 Cal.3d 376, 618 P.2d 213, 168 Cal.Rptr.
667 (1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2321, 68
L.Ed.2d 844 (1981); People v. Townsend, 90 Ill. App.3d 1089, 1096,
46 Ill.Dec. 599, 604-05, 414 N.E.2d 483, 488-89 (1980); see
United States v. Dennis, 625 F.2d 782, 791-92 (8th Cir. 1980);
States v. Martin, 615 F.2d 318, 328-29 (5th Cir. 1980); United
States v. Vazquez, 605 F.2d 1269, 1282 (2d Cir.), cert. denied,
444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408, 444 U.S. 1019, 100
S.Ct. 674, 62 L.Ed.2d 649 (1979); United States v. Melvin,
596 F.2d 492, 498-500 (1st Cir.), cert. denied, 444 U.S. 837, 100
S.Ct. 73, 62 L.Ed.2d 48 (1979), United States v. Collins,
549 F.2d 557, 561 (8th Cir.), cert. denied, 431 U.S. 940, 97 S.Ct.
2656, 53 L.Ed.2d 259 (1977); United States v. Park, 531 F.2d 754,
758-59 (5th Cir. 1976); United States v. Burke, 490 F. Supp. 855,
857 n. 1 (S.D.Fla. 1980); United States v. Balsamo, 468 F. Supp. 1363,
1390 (D.Me. 1979); United States v. Acon, 403 F. Supp. 1189,
1193-94 (W.D.Pa. 1975); Morris v. Superior Court, 57 Cal.App.3d 521,
129 Cal.Rptr. 238 (1976); see also United States v.
Lefkowitz, 618 F.2d 1313, 1317 n. 3 (9th Cir.), cert. denied,
449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); United States v.
Davis, 617 F.2d 677, 693-95 (D.C.Cir. 1979). However, when
defendants challenge the warrant on the basis of information not
brought to the attention of the authorizing judge which they
claim tends to negate the existence of probable cause, the
government is entitled to respond by presenting its own evidence,
also not brought to the attention of the magistrate, which
supports the existence of probable cause. See United States v.
Carmichael, 489 F.2d 983, 990 (7th Cir. 1973) (en banc); State v.
Post, 286 N.W.2d 195, 201-02 (Iowa 1979); 2 W. LaFave, supra p.
13 § 4.4 at 18 (Supp. 1982).*fn20
Some of the claims defendants make in this case are based on
their theory that, had the government conducted a reasonably
adequate investigation prior to seeking authority to conduct
electronic surveillance, it would have discovered that the
assertions made in the affidavits were false. Before the
individual assertions are considered, some remarks about whether
Franks encompasses a "duty to investigate" are in order.
Defendants' "duty to investigate" claims, by their very nature,
involve reckless and not intentional misstatements. Defendants do
not argue that the government actually knew the affidavits were
materially false, but that, had it investigated, it would have
discovered their falsity, and that the failure to do so was made
with reckless disregard of the truth. Unfortunately, Franks
provides little guidance as to what constitutes "reckless
disregard for the truth." A useful analogy, however, is provided
by the principle of first amendment law that liability for a
defamatory statement regarding a public figure cannot be imposed
unless the plaintiff proves that the defendant acted with
reckless disregard for the truth. See generally Gertz v. Robert
Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974);
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct.
710, 725-26, 11 L.Ed.2d 686 (1964). The Court has written that
reckless conduct is not measured by whether a
reasonably prudent man would have published, or would
have investigated before publishing. There must be
sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to
the truth of his publication. Publishing with such
doubts shows reckless disregard for the truth.
St. Amant v. Thompson, 390 U.S. 727, 731-32, 88 S.Ct. 1323,
1325-26, 20 L.Ed.2d 262 (1968) (emphasis supplied). The actual
presence of serious doubts as to the truth of the representations
published is the key to a finding of reckless disregard for the
truth. "Failure to investigate does not in itself establish bad
faith." Id. at 733, 88 S.Ct. at 1326. See Herbert v. Lando,
441 U.S. 153, 156-57, 99 S.Ct. 1635, 1638-39, 60 L.Ed.2d 115 (1979);
Gertz, 418 U.S. at 335 n. 6, 94 S.Ct. at 3005 n. 6; Sullivan, 376
U.S. at 287-88, 84 S.Ct. at 729-30.
The same considerations of requiring actual bad faith, rather
than merely a breach of duty, which underlie this principle of
first amendment law also underlie Franks. See 438 U.S. at 168-70,
98 S.Ct. at 2682-84, see also United States v. Carmichael,
489 F.2d 983, 988-89 (7th Cir. 1973) (en banc). As a result, this
branch of first amendment law provides useful guidance, and
indicates that the reckless disregard for truth required by
Franks is not established by a mere failure to investigate.
Rather, it can only be demonstrated if defendants can establish
that the government in fact entertained serious doubts as to the
truth of the affidavits or had obvious reasons to doubt the
accuracy of the information contained therein. United States v.
Davis, 617 F.2d 677, 694 (D.C.Cir. 1979); see United States v.
Edwards, 602 F.2d 458, 465 (1st Cir. 1979). Therefore, failure to
investigate, in itself, does not state a claim under Franks. See
Edwards, 602 F.2d at 465; United States v. Young Buffalo,
591 F.2d 506, 510 (9th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct.
2178, 60 L.Ed.2d 1055 (1979); United States v. Santarpio,
560 F.2d 448, 453 n. 4 (1st Cir. 1977), cert. denied, 434 U.S. 984,
98 S.Ct. 609, 54 L.Ed.2d 478 (1978); United States v.
Weingartner, 485 F. Supp. 1167, 1183 (D.N.J. 1979), appeal
dismissed, 642 F.2d 445 (3d Cir. 1981); United States v. Acon,
403 F. Supp. 1189, 1193-94 (W.D.Pa. 1975); Caslin v. Commonwealth,
491 S.W.2d 832, 834 (Ky. 1973).*fn21 Moreover, when examining the
evidence of reckless error proffered by defendants, it is
important to conduct the inquiry with an appreciation of the
difficulty of the task confronting the government agents. Franks
itself notes that mistakes are inevitable when agents must, of
necessity, rely on hearsay or make hasty judgments in the midst
of an ongoing and quickly-developing investigation. See 438 U.S.
at 165, 169, 98 S.Ct. at 2681, 2683. The evidence obtained during
investigations is rarely clear-cut; "smoking guns" are rarities.
More often, the evidence obtained and presented to the magistrate
will contain ambiguities and confusing references, especially
when the results of wiretaps are presented. In such cases,
mistakes are to be expected, and are not necessarily indicative
of recklessness. See United States v. Young Buffalo,
591 F.2d 506, 511 (9th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2178,
60 L.Ed.2d 1055 (1979); United States v. Marcello, 508 F. Supp. 586,
604-06 (E.D.La. 1981).
With the preceding principles in mind, the warrant applications
and affidavits in this case can be examined.
On January 29, 1979, the government, through Emil A. Tonkovich,
an attorney for the United States Department of Justice, applied
for a Title III order to intercept telephone conversations of
Allen Dorfman, Sol Schwartz, Abe Chapman, Anthony LaMonica,
Samuel LaMonica, Carl Thomas and others yet unknown taking place
over certain of Amalgamated's phone lines. Wading through the
boilerplate, the substance of the application was that there was
probable cause to believe that a group of persons were conspiring
to establish, promote, manage, and/or receive compensation from
hidden interests in one or more Reno and Las Vegas, Nevada
gambling casinos. Such a conspiracy would have violated the
Nevada Gaming Control Act, Nev.Rev.Stat. §§ 463.160, 463.170,
463.200, 463.520, 463.530 and 463.360 (1977), and, depending upon
the appropriate interstate nexus, 18 U.S.C. § 371, 1952,
1962(c)-(d) and 1963 (1976). The application named those persons
whom there was probable cause to believe were engaged in the
alleged unlawful activity, including Dorfman and, with respect to
the Reno casinos, defendant Joseph Lombardo ("Lombardo"). The
application alleged probable cause to believe that the named
interceptees commonly used the particular Amalgamated telephone
lines and that a tap would intercept conversations of the named
interceptees regarding the criminal activities alleged in the
application. The application was supported by the affidavit of
Special Agent Peter J. Wacks ("Wacks") of the FBI.
The Wacks affidavit does not allege that Wacks had personal
knowledge of the illegal activities alleged in the affidavit.
Rather, it relies on hearsay statements attributed to six
confidential informants, one named informant, and certain
telephone subscriber and toll record information.*fn22 This
information must be tested against the standards of
Aguilar/Spinelli outlined above.
Confidential Informant # 1 (CI # 1), as he is named in the
Wacks affidavit, stated that Dorfman is controlled by organized
crime figures in Chicago, that he handles business investments on
behalf of organized crime interests, and arranges loans made to
organized crime interests by the Fund. We take judicial notice of
the fact that the term "organized crime" refers to an ...