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UNITED STATES v. DORFMAN

June 1, 1982

UNITED STATES OF AMERICA, PLAINTIFF,
v.
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.

                    MEMORANDUM OPINION

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 relevant.

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 decision.

I

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.

II

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 contentions advanced by defendants, we review the principles which underlie them.

A

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) (plurality opinion).

  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]
  interception;
    (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
  person.

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 States v. 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 in original).

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

B

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 contains.

  [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 cause.*fn16

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 be "truthful,"

  [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
  as true.

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 (1973).*fn18

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); United 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.

III

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.

A

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 ...


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