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United States v. Dorfman

decided: September 2, 1982.


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81-CR-269 -- Prentice H. Marshall, Judge.

Cummings, Chief Judge, and Pell and Bauer, Circuit Judges.

Author: Cummings

CUMMINGS, Chief Judge.

These are consolidated appeals from three separate orders denying motions to suppress filed in connection with the government prosecution in United States v. Allen Dorfman. For the reasons stated below, we dismiss appeal No. 82-2209 for want of jurisdiction and affirm the orders of the district court in the remaining two appeals.

I. Factual Background

The five defendants in the underlying district court case*fn1 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), 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 and attempting to obtain money and property by means of false pretenses in violation of 18 U.S.C. § 1343 (1976). The indictment is partly the product of extensive electronic surveillance conducted under the authority of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 ("Title III"). On January 29, 1979 the Federal Bureau of Investigation received authorization under Title III to place a wiretap on telephones at Amalgamated Insurance Agency Services in Chicago and to intercept telephone conversations of Allen Dorfman and five other named persons. The wiretaps continued for fourteen months pursuant to successive extensions of the original wiretap authorization. The surveillance produced more than 2,000 reels of recordings. The conversations of hundreds of persons were intercepted besides the five individuals charged in the indictment. United States v. Dorfman, 542 F. Supp. 345, slip op. at 2, 29 (N.D. Ill. 1982).

On January 12 and 13, 1982 the defendants filed motions to suppress the material obtained by the court-authorized electronic surveillance. The defendants contended that such interception violated Title III. The district court held suppression hearings in March and April of 1982,*fn2 and denied the motions in a lengthy memorandum opinion dated June 1, 1982.*fn3 On July 13, 1982 the district court denied the defendants' motion for reconsideration. The defendants have appealed.

In addition to the defendants' appeal, two related appeals are pending before this Court. The first appeal has been taken by five persons whose conversations were intercepted but who have not been charged in the indictment.*fn4 Following entry of the district court's June 1 order denying defendants' motions to suppress, these persons filed a motion to suppress those intercepted conversations in which they participated and to obtain access to the transcripts of those intercepted conversations. The government objected to the nonparties' standing to raise the suppression questions. The government also filed a statement indicating its intent to introduce at trial certain conversations of four of the movants in its case in chief.*fn5 The government also asserted in open court that none of the movants would be called as government witnesses at trial. On June 23 the district court denied any document disclosure to the movants, and denied the request for suppression, reasoning:

The fourth amendment exclusionary rule does not extend to a person against whom no evidence is offered. "No rights of the victim of an illegal search are at stake when the evidence is offered against some other party." Alderman v. United States, 394 U.S. 165, 174 [22 L. Ed. 2d 176, 89 S. Ct. 961] (1969). Assuming arguendo that non-parties are "aggrieved persons" within the meaning of 18 U.S.C. § 2518(10) (Supp. II 1978), nevertheless Title III does not grant a suppression remedy broader than that encompassed in general fourth amendment law. See United States v. Dorfman, 542 F. Supp. 345, slip op. at 103 n. 30 (citing Scott v. United States, 436 U.S. 128, 139 [56 L. Ed. 2d 168, 98 S. Ct. 1717] (1978)).

While a non-party may be able to prevent disclosure of intercepted conversations, see Anthony v. United States, 667 F.2d 870 (10th Cir. 1981); 18 U.S.C. §§ 2215, 2517, a question we do not now decide, he cannot prevent the admission of intercepted conversations against defendants in a criminal case. Non-parties' motions to suppress are therefore denied.

The five nonparties appealed.*fn6

The second related appeal has been filed by William E. Webbe, from the district court's order denying his motion to suppress conversations in which he was a party. Webbe, named in the indictment as an unindicted co-conspirator, was subpoenaed before the grand jury, given immunity and did testify. Webbe has been subpoenaed as a trial witness and presumably will testify at that time pursuant to a grant of immunity. Six days after the entry of the order denying the nonparties' motion to suppress, Webbe filed his own motion to suppress all conversations in which he was a party and all evidence obtained as a result of the intercepted conversations. The district court granted Webbe access to the transcripts and tapes of conversations in which Webbe was a participant and which the government intends to play at the trial, but subsequently denied the motion to suppress in a brief opinion that the court read into the record on July 1.

The district court relied on four rationales to deny Webbe's motion. First, the court rejected Webbe's argument that because Webbe will be a trial witness he has a separate right to a separate adjudication of the lawfulness of the wiretaps as to him. The trial court concluded that Webbe was fully aware of the extensive evidentiary hearings held in March and April on the defendants' motions to suppress, but chose not to participate, thus raising a "classic case for the application of the common law doctrine of laches." Second, the trial court noted that Webbe challenged the lawfulness of the wiretaps before Chief Judge Parsons at the time he was compelled to testify before the grand jury. At that time Webbe did not challenge through contempt proceedings Chief Judge Parsons' ruling on the lawfulness of the surveillance. The district court concluded that Webbe was not entitled to relitigate the issue in a suppression hearing. Third, the district court ruled that because Webbe was not a named interceptee on the January 29, 1979 authorization order he lacked standing to challenge its facial validity; and, further, because the evidence will be introduced against defendants and not him, he lacks standing to seek its suppression. Finally, on the assumption that the preceding reasons might be insufficient justification to deny the motion to suppress, the district court addressed the merits of Webbe's motion and concluded that the request for suppression must be denied for the reasons stated in the earlier decision of June 1, 1982 entered with respect to the defendants' motions to suppress.*fn7 (United States v. Dorfman, 542 F. Supp. 345, Transcript of Proceedings, July 1, 1982).

II. The Defendants' Appeal

For purposes of the present discussion we treat separately the appeals of defendants and nondefendants. We turn first to the arguments raised on the appeal taken by the defendants from the June 1, 1982 order denying their motions to suppress. We conclude that the appeal has been taken from a nonfinal and nonappealable order and therefore must be dismissed.

A long line of cases clearly establishes that a defendant may not take an interlocutory appeal from an order denying a motion to suppress evidence. E.g., DiBella v. United States, 369 U.S. 121, 131, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962); Cogen v. United States, 278 U.S. 221, 223, 73 L. Ed. 275, 49 S. Ct. 118 (1929). Such ...

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