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United States District Court, Northern District of Illinois, E.D

June 17, 1983


The opinion of the court was delivered by: Prentice H. Marshall, District Judge.


On December 15, 1982, a jury found defendants Roy L. Williams, Joseph Lombardo, Thomas F. O'Malley and Andrew G. Massa guilty of conspiracy to bribe a United States Senator, travel in interstate commerce with intent to commit bribery, and nine counts of wire fraud, in violation of 18 U.S.C. § 201(b)(1), 371, 1343 and 1952 (1976).*fn1 Defendants filed multiple individual motions for a new trial, in arrest of judgment and for a judgment of acquittal under Fed.R.Crim.P. 29(c), 33 and 34. All of the motions were denied on January 26, 1983 save one in which all defendants sought a new trial because of alleged post verdict contact between a juror and a witness. That motion was denied on March 31, 1983. A four week sentencing hearing ensued, and, on March 31, 1983, defendants were sentenced to various periods of incarceration. Thereafter, all defendants filed timely notices of appeal to the United States Court of Appeals for the Seventh Circuit.

On April 13, defendants O'Malley and Massa filed their third motion for new trial under Fed.R.Crim.P. 33*fn2 which has been joined by all defendants. The motion is based on what defendants characterize as newly discovered evidence. The parties have briefed the question of whether the "evidence" that has been submitted in support of the motion warrants a new trial.*fn3


Defendants' "newly discovered evidence" consists of the affidavit of H. Edward Tickel ("Tickel"), which we take as true for present purposes.*fn4 In 1978 and 1979 Tickel was a Special Agent of the Federal Bureau of Investigation ("FBI") stationed in Washington, D.C. In October 1979, while he was in Chicago on other FBI business, he was told by other FBI agents that he might be asked to assist in breaking into a large office building in order to place microphones in several offices as part of electronic surveillance in an ongoing investigation. It later developed that the building was located at 8550 W. Bryn Mawr Avenue, in Chicago, which housed, inter alia, the offices of Allen Dorfman's Amalgamated Insurance Company, the Central States Pension Fund and the International Brotherhood of Teamsters.

When Tickel next returned to Chicago, he learned that the agents had acquired a magnetic card which enabled them to enter the building from the basement parking area and had obtained permission to use an office on the fourth floor of the building, belonging to the Milk Producers Association. During this period, Tickel and other agents used the card to enter the building and go up to the fourth floor office on several occasions. Tickel also used the locks in the Milk Producers' office to make a master key for the entire building.

After testing his key on other locks in the building, Tickel and one or two other FBI agents went down to the second floor offices of their target, Amalgamated Insurance Company, where they used the key to enter the reception area by a door that led from the common stairwell. Tickel observed the security camera and locks on Amalgamated's doors, determined that he could make a key that would open the doors, and left.

In order to study Amalgamated's security system further, Tickel soon returned to Amalgamated, accompanied by another agent, on a pretext interview. While pretending to be interested in an insurance claim, Tickel observed the office.

During either December or January, Tickel returned to Chicago and was told that another entry into Amalgamated's offices would be required to learn more about its security systems. FBI agents had been watching Amalgamated's offices from the building's parking lot, and had learned that every day the cleaning persons would leave the doors to the stairs open and part of the suite unattended.*fn5 Therefore, Tickel took advantage of this opportunity to enter the offices, while in communication with agents in the parking lot who watched to see if any cleaning persons might return and catch Tickel. Tickel used his master key to enter the alarm room, and studied the alarm system to learn if there were any back-up systems in addition to the main system, and to learn details regarding the main system.

Tickel then left the alarm room and went to the telephone frame room, which he entered with his master key. He checked this room for back up alarm equipment. After finishing in the frame room, Tickel left the building.

Tickel told the FBI's alarm expert what he learned during this entry, and from his conversations with the expert Tickel concluded that this information enabled the expert to understand and hence to defeat Amalgamated's alarm system. Tickel also learned that the other agents had learned the location of the telephone line that connected Amalgamated's alarms with its alarm company's monitoring system by talking to the telephone company, and had rented room space and telephone lines near this line in order to monitor the line and eventually defeat it.

On April 7, 1979, then Chief Judge James B. Parsons granted the government's request that the FBI be authorized to enter surreptitiously Amalgamated's offices and place microphones in the private offices of Allen Dorfman and William Webbe. Tickel returned to Chicago on April 11 and assisted other agents in placing these "bugs."

Some months later, Tickel returned to Chicago, on November 7, 1979, to assist the FBI in making a "technical survey" of a suite of hotel rooms at the Sheraton-O'Hare in Chicago which the FBI anticipated would soon be the subject of a court order authorizing electronic surveillance. The next day, Tickel purchased some key blanks, then went to the suite when no one was there and made a key for the door. He did not enter the suite on that occasion, but did return on November 9 and entered the suite with his key to reconnoiter it. Subsequently the Department of Justice refused to approve the surveillance, and the surveillance equipment was never placed in the suite.*fn6

Defendants claim that this evidence, if true, would establish that the electronic surveillance in this case was tainted by government misconduct, and, as a result, the fruits of this surveillance should not have been admitted into evidence at trial.


The parties agree that the standards for a rule 33 motion are demanding.

  The defendant[s] must show that the evidence (1) came
  to their knowledge only after trial; (2) could not
  have been discovered earlier had defendants exercised
  due diligence; (3) is material, and not merely
  impeaching or cumulative; and (4) would probably lead
  to an acquittal in the event of a retrial. As
  recognized in United States v. Curran, 465 F.2d 260,
  262 (7th Cir. 1972), these standards reflect the fact
  that such motions "are not favored by the courts and
  are viewed with great caution."

United States v. Oliver, 683 F.2d 224, 228 (7th Cir. 1982).

The first two elements go to the question of whether it is appropriate for defendants to raise the new evidence at this time. We doubt that either element is satisfied in this case.

First, defendants must show that the evidence came to their knowledge only "after trial." The motion was not filed until April 13, 1983, two weeks after defendants were sentenced. Yet they had learned of Tickel's allegations approximately three months earlier, see Motion of Defendants O'Malley and Massa for a New Trial ¶ 3, shortly after the verdict was returned. Thus, it appears that defendants could have raised this issue in their initial post-trial motions which were not due to be filed until January 11, 1983 and certainly prior to or during the sentencing hearing (which ran intermittently from February 7 through March 31). But they did not.

While it is unclear whether the pendency of the post-trial proceedings should provoke the conclusion that defendants did not learn of the evidence "after trial" and hence cannot raise the issue under rule 33, at a minimum we think we should express our displeasure at defendants' failure to raise the issue — which was known to them — until after sentencing. We may have discretion to deny the motion on this basis alone. We choose not to do so. But we observe that multiple and belated motions for new trial are looked upon with disfavor because they are not in the interests of the orderly administration of justice.*fn7

We also question defendants' assertion that they could not have discovered this evidence earlier had they exercised due diligence. At no point during the weeks of extensive pretrial proceedings concerning the legality of the electronic surveillance in this case nor during the trial when the parties, court and jury were concerned with the audibility and credibility of the recordings of the intercepted conversations, did defendants seek to inquire as to how and where the surveillance equipment was placed in Mr. Dorfman and Mr. Webbe's offices. Had defendants sought such information, we might well have permitted them extensive discovery on the question, which might have disclosed Tickel's name and enabled defendants to contact him.*fn8 Defendants — all of whom worked in or frequently visited the building — were undoubtedly aware of the extensive security arrangements at Amalgamated and hence would have reason to inquire whether the government could have defeated them without taking improper steps.*fn9

Defendants' present argument that they had no reason to question the government's good faith or adherence to law is disingenuous at best. At every step of the way in this case defendants have attacked the government's good faith and adherence to the law. Defendants sought and obtained extensive discovery because they refused to accept the government's assertions prior to the suppression hearing that it had complied with the law. Their failure to explore the placement of the microphones prior to now is not the product of due diligence.

While defendants have failed to demonstrate the first two elements required for a new trial under rule 33 and Oliver, we nevertheless will consider and decide the remaining issues presented by the motion, both to provide the court of appeals with a complete record for its review and hence obviate the necessity for a remand should it decide that the motion was properly presented, and because defendants' allegations of governmental misconduct raise important issues in the administration of justice that should be addressed. See generally United States v. Turner, 490 F. Supp. 583, 609 (E.D.Mich. 1979), aff'd mem., 633 F.2d 219 (6th Cir. 1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981).

The Tickel affidavit certainly does not contain merely cumulative or impeaching evidence. The allegations are entirely new to the case and raise a ground for suppressing evidence which we have not previously considered. The final question under rule 33 is whether this evidence would probably lead to the acquittal of defendants. If defendants are correct that the new evidence requires the suppression of all fruits of the microphone surveillance after April 7, and all surveillance, both telephonic and oral, that resulted from applications filed after April 7, then evidence critical to the government's case would have been excluded and defendants might well have been acquitted. Furthermore, defendants urge that the Tickel allegations reflect so adversely upon the government's good faith in initiating the electronic surveillance in this case that we should reconsider our entire ruling on the motion to suppress and exclude all of the surveillance evidence. Accordingly, we must decide whether defendants are correct that the Tickel allegations warrant the suppression of evidence offered by the government at trial.


Defendants are entitled to suppress evidence only if they demonstrate that they have standing to assert the illegality of conduct alleged by Tickel. Since defendants claim that this conduct violates the fourth amendment,*fn10 they must demonstrate standing to assert a violation of the fourth amendment.

To establish standing defendants must show that the challenged conduct violated their own legitimate expectations of privacy. "[T]he defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party." United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980) (emphasis in original). See Rawlings v. Kentucky, 448 U.S. 98, 104-06, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 129, 143-48, 99 S.Ct. 421, 423, 430-32, 58 L.Ed.2d 387 (1978). Fourth amendment rights are only infringed when something a person legitimately expects will remain private is at stake. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).

Applying these principles, it is clear that much of the conduct alleged by Tickel violates no fourth amendment interests of defendants. Tickel's entry into the offices on a pretext interview involved seeing nothing more than any visitor or customer would see, and the fourth amendment permits a government agent to pose as a customer and enter business premises open to customers of defendants. See Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).*fn11 Also, the agents' observations of Amalgamated from the parking lot infringed no expectation of privacy; the agents just observed what any passerby could see from the street. See United States v. Scherer, 673 F.2d 176, 181 (7th Cir.), cert. denied, 457 U.S. 1120, 102 S.Ct. 2935, 73 L.Ed.2d 1334 (1982).

Even as to Tickel's two surreptitious entries*fn12 into Amalgamated, defendants have failed to demonstrate their standing. While we have no doubt that defendants had a legitimate expectation of privacy in their own offices, see Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), Tickel did not enter any of their offices; he was in only the exterior lobbies and corridors, the alarm room and the frame room. Defendants' legitimate expectations of privacy can only be violated by searches of areas they have sought to keep private by using them in a way that prevents them from being freely accessible to other people. See, e.g., United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir.), corrected, 664 F.2d 84 (1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982); Wilson v. Health & Hospital Corp. of Marion County, 620 F.2d 1201, 1208-14 (7th Cir. 1980); United States v. Vicknair, 610 F.2d 372, 380-81 (5th Cir.), cert. denied, 449 U.S. 823, 101 S.Ct. 83, 66 L.Ed.2d 25 (1980); United States v. Garcia-Rodriguez, 558 F.2d 956, 960 (9th Cir. 1977). No showing is made that any defendant used the areas Tickel searched in any private way. Since no defendant worked in the areas Tickel searched, or used those areas in any private way, each lacks standing to challenge the search. See United States v. Cella, 568 F.2d 1266, 1283 (9th Cir. 1977); United States v. Cohen, 516 F.2d 1358, 1366 (8th Cir. 1975); United States v. Britt, 508 F.2d 1052 (5th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 40, 46 L.Ed.2d 42 (1975); United States v. Lefkowitz, 464 F. Supp. 227, 230-31 (C.D.Cal. 1979), aff'd, 618 F.2d 1313 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980). See also United States v. Cook, 498 F. Supp. 1057, 1058-59 (S.D.Tex. 1980), modified and aff'd on other grounds, 657 F.2d 730 (5th Cir. 1981). For example, in United States v. Alewelt, 532 F.2d 1165, 1168 (7th Cir.), cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976), our court of appeals held that the defendant had no legitimate expectation of privacy in the outer area of his office where he had placed his coat on a coatrack.*fn13 Neither do defendants allege any proprietary interest in the premises searched which might accord them standing. See Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978).*fn14 Since defendants have not shown that they used the areas searched in any way that created a legitimate expectation of privacy, they lack standing to challenge the search since it did not infringe their fourth amendment rights.*fn15

Defendants argue that even if they lack standing to directly challenge the search, since it developed information used to place microphones and intercept their conversations, the conversations must be suppressed as fruits of a poisonous tree under the rule of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

While the interception of defendants' own conversations infringes their legitimate expectations of privacy, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in the instant motion defendants do not challenge the interceptions directly, but rather argue that the interceptions are the fruits of a prior fourth amendment violation which we have held they do not have standing to challenge. We know of no authority that holds that a defendant may suppress evidence seized from him as a fruit of a violation of fourth amendment rights which he does not have standing to challenge. There is ample authority to the contrary. See United States v. Chase, 692 F.2d 69 (9th Cir. 1982) (per curiam); United States v. Congote, 656 F.2d 971, 975-76 (5th Cir. 1981); United States v. Hansen, 652 F.2d 1374, 1386-87 (10th Cir. 1981); United States v. Shovea, 580 F.2d 1382, 1385-86 (10th Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978); United States v. Tortorello, 533 F.2d 809, 815 (2d Cir. 1976); Gissendanner v. Wainwright, 482 F.2d 1293, 1297-99 (5th Cir. 1973); United States v. Brown, 425 F.2d 1172, 1174 (9th Cir. 1970) (per curiam); Jacobs v. Warden, 367 F.2d 321 (4th Cir. 1966); United States v. Agapito, 477 F. Supp. 706, 713 (S.D.N.Y. 1979) aff'd, 620 F.2d 324 (2d Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980). See also United States v. Davis, 617 F.2d 677, 689-90 (D.C.Cir. 1979). This rule has its origin in Wong Sun itself, where the Court held that heroin unlawfully taken from another was admissible against Wong Sun because the evidence had not been derived from a violation of his own rights. Wong Sun in turn was an outgrowth of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1961), where the Court wrote,

  In order to qualify as a "person aggrieved by an
  unlawful search and seizure" one must have been a
  victim of a search or seizure, one against whom the
  search was directed, as distinguished from one who
  claims prejudice only through the use of evidence
  gathered as a consequence of a search or seizure
  directed at someone else.

Id. at 261, 80 S.Ct. at 731.

Here, defendants were not victims of Tickel's allegedly unlawful search. Their conversations were not seized as fruits of a violation of their own rights. Hence, they no more have standing to suppress fruits of those violations than did Wong Sun. While it was defendants' own conversations that were seized, allegedly as fruits of the earlier unlawful conduct, at bottom they seek suppression because someone else's rights were violated, and not because their own rights were violated. "In either case, the defendant `claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.'" United States v. Chase, 692 F.2d 69, 70 (9th Cir. 1982) (per curiam) (quoting Jones, 362 U.S. at 261, 80 S.Ct. at 730).

The purpose of standing rules is to prevent defendants from complaining of a violation of someone else's rights, and that is exactly what defendants are doing here — complaining that their conversations were seized because someone else's rights were earlier violated. The cases do not permit that. Since Tickel's initial searches infringed no protected privacy interest of defendants, use of their fruits likewise does not violate defendants' fourth amendment rights.

Defendants' final argument is that even if they lack standing to seek suppression of evidence under the fourth amendment, they have standing to move to suppress under Title III of the Omnibus Crime Control Act of 1968, as amended, 18 U.S.C. § 2510-20 (1976 & Supp. II 1978). Defendants first correctly point out that since their conversations were intercepted by the surveillance equipment installed by Tickel, they are "aggrieved persons" within the meaning of the statute, since "`aggrieved person' means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11)(1976). The statute goes on to give "aggrieved persons" the right to seek suppression of evidence.

    Any aggrieved person in any trial, hearing or
  proceeding in or before any court . . . may move to
  suppress the contents of any wire or oral
  communication, intercepted pursuant to this chapter,
  or evidence derived therefrom, on the grounds that —

(i) the communication was unlawfully intercepted;

    (ii) the order of authorization or approval under
  which it was intercepted is insufficient on its face;

    (iii) the interception was not made in conformity
  with the order of authorization or approval.

18 U.S.C. § 2518(10)(a) (1976). Since no claim is made in the pending motion that Chief Judge Parsons' orders were insufficient on their face or that the interceptions were not made in conformity with the orders of authorization, defendants must argue that the fact that the microphone interceptions were made possible by Tickel's allegedly unlawful conduct means that the communications were unlawfully intercepted within the meaning of § 2518(10)(a)(i) and that the communications and all evidence derived therefrom must be suppressed.*fn16

Defendants' statutory argument suffers from the same flaws as their constitutional standing argument. Nothing in Title III governs Tickel's conduct directly; Title III governs only electronic surveillance. Nothing in the statute governs unlawful entries of property. Thus, Title III does not accord defendants standing to challenge the unlawful entries in themselves. See United States v. Scafidi, 564 F.2d 633, 638 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 400 (1978).*fn17 Defendants therefore can argue only that their conversations were unlawfully intercepted because the interceptions were made possible by Tickel's earlier unlawful conduct which they do not have standing to challenge under Title III or the Constitution. This is exactly the same as the fruits of the poisonous tree argument we rejected above, and it must be rejected here as well. The suppression remedy contained in Title III was intended to be construed consistently with fourth amendment principles of standing. See Alderman v. United States, 394 U.S. 165, 179 n. 9, 89 S.Ct. 961, 969 n. 9, 22 L.Ed.2d 176 (1969); Sen.Rep. No. 1097, 90th Cong., 2d Sess. 96 (1968), reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2185.*fn18 In Alderman, which was a wiretap case governed by Title III, the Court cited as controlling the principles of Wong Sun and Jones. See 394 U.S. at 472-76, 83 S.Ct. at 409-11. In an earlier appeal in this case, the court of appeals held that a person's standing under the statute is measured by whether his own privacy interests have been infringed by the interception, see United States v. Dorfman, 690 F.2d 1217, 1228-29 (7th Cir. 1982), a test that tracks the constitutional requirement that defendants' legitimate expectations of privacy be infringed. Since standing under Title III tracks fourth amendment standing, the same principles which indicate that as a constitutional matter defendants lack standing to suppress conversations which were intercepted as the fruits of the violation of someone else's rights mean that defendants lack standing to assert statutory suppression. Indeed, a long line of cases have held that Title III does not confer standing to suppress one's own conversations when they are intercepted as fruits of a violation that one does not have standing to challenge. See United States v. Civella, 648 F.2d 1167, 1171-72 (8th Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981); United States v. Williams, 580 F.2d 578, 583 n. 21 (D.C.Cir.), cert. denied, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127 (1978); United States v. Fury, 554 F.2d 522, 525-26 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); United States v. Abramson, 553 F.2d 1164, 1170 (8th Cir.), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977); United States v. Plotkin, 550 F.2d 693, 694-95 (1st Cir.), cert. denied, 434 U.S. 820, 98 S.Ct. 61, 54 L.Ed.2d 76 (1977); United States v. Wright, 524 F.2d 1100, 1102 (2d Cir. 1975); United States v. Scasino, 513 F.2d 47 (5th Cir. 1975); United States v. Lanese, 385 F. Supp. 525 (N.D.Ohio 1974); United States v. Ceraso, 355 F. Supp. 126, 127 (M.D.Pa. 1973); United States v. Iannelli, 339 F. Supp. 171, 177 (W.D.Pa. 1972), aff'd, 477 F.2d 999 (3d Cir. 1973), aff'd, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). See also Scott v. United States, 436 U.S. 128, 135 n. 10, 98 S.Ct. 1717, 1722 n. 10, 56 L.Ed.2d 168 (1978); United States v. Phillips, 479 F. Supp. 423, 433-37 (M.D.Fla. 1979).*fn19 Since defendants' own expectations of privacy were not infringed by the allegedly wrongful conduct at issue, they lack standing to challenge the conduct, or suppress its fruits, under either Title III or the fourth amendment.*fn20

Thus far our standing discussion has concerned the conduct described by Tickel at Amalgamated. The entries into the Sheraton-O'Hare hotel suite present a different situation. Defendant Williams alleges that he was staying in the suite. A guest in a hotel room has standing to contest an unlawful search of the room. See Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). Accordingly, Williams has standing to complain of the entry into the Sheraton-O'Hare suite.


Assuming defendants have standing to challenge the conduct alleged by Tickel, not all of it was unlawful. As our holding on standing indicates, the observation of Amalgamated from the parking lot and the pretext interview infringe no interest protected by the fourth amendment or Title III. The use of the magnetic card and the offices of the Milk Producers was also lawful. The uncontroverted affidavit of a representative of the Milk Producers indicates that he gave FBI agents permission to use the offices, card and the common areas of the building after they disclosed that they were agents and needed his assistance in their investigation. See Affidavit of James R. Box.*fn21 However, the government concedes that warrantless entries into Amalgamated's offices and the hotel suite would have been unlawful. There is no question but that the fourth amendment prohibits warrantless entries into hotel rooms, see United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), and offices, see Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968).*fn22


Again assuming that defendants have standing to challenge the conduct alleged by Tickel, the next question is whether the unlawful conduct alleged would, if proven, entitle defendants to suppress any of the evidence offered at trial. We will examine first the statutory basis for suppression, and later turn to the constitutional basis.

The starting point must be the scope of the suppression remedy contained in Title III. We return to the analysis developed in the opinion on the original motion to suppress. Defendants may only suppress interceptions which would not have occurred but for the unlawful conduct. See United States v. Dorfman, 542 F. Supp. 345, 377 n. 30 (N.D.Ill. 1982). This follows from United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1974), where the government did not name all the individuals for whom it had probable cause to believe were engaged in the criminal activity under investigation, in violation of 18 U.S.C. § 2518(1)(b)(iv) (1976). The Court held that this violation of the statute did not mean that the fruits of the interception had been "unlawfully intercepted" within the meaning of id. § 2518(10)(a)(i). The Court reasoned that had the government not violated the statute, and named all the individuals for which it had probable cause, it still would have been able to obtain judicial authorization for the surveillance and to intercept the conversations at issue. Hence, the statutory violation in no way enabled the government to intercept conversations that it otherwise would not have intercepted and did not merit suppression of those conversations. See id. at 435-36, 97 S.Ct. at 671-72.

Similarly, in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), where the government misidentified the Department of Justice official who had approved the application for authorization of surveillance in the application, in violation of 18 U.S.C. § 2516(1) (1976), the Court held that since the government could have obtained authorization had it correctly identified the official, and since incorrect identification did not enable the government in that case to obtain interceptions it might otherwise not have obtained, suppression was unwarranted. See id. at 575-80, 94 S.Ct. at 1856-58.

The Supreme Court has written,

  [W]e think Congress intended to require suppression
  where there is failure to satisfy any of these
  statutory requirements that directly and
  substantially implement the congressional intention
  to limit the use of intercept procedures to those
  situations calling for the employment of this
  extraordinary investigative device.

United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974) (emphasis added). Thus, Donovan and its predecessors indicate that evidence is "unlawfully intercepted" within the meaning of § 2518(1)(a)(i) only where the government could not have obtained the evidence but for unlawful conduct.*fn23

Under this test, it is clear that the unlawful entry at the Sheraton-O'Hare does not entitle defendants to any statutory suppression. There is simply no allegation that this entry enabled the government to obtain any of the evidence used at trial. None of the evidence obtained during the entry was introduced at trial and no claim is made that any of the evidence that was introduced at trial was a fruit of this entry. Thus, we need only consider the unlawful entries at Amalgamated in determining whether defendants, assuming their standing, are entitled to statutory suppression.


Defendants' first argument in support of statutory suppression is the fruits of the poisonous tree argument discussed above. The government's inability to obtain some of the evidence used at trial, but for the unlawful entries, would make that evidence "unlawfully intercepted" within the meaning of § 2518(10)(a)(i).*fn24 However, defendants' showing that the microphones could not have been installed in Dorfman's and Webbe's offices and the evidence used at trial could not have been obtained but for the illegality is deficient.

First, the Tickel affidavit and uncontroverted affidavits submitted by the government indicate that the FBI had independent sources for all of the information supplied by Tickel as a result of the unlawful entries. The affidavits indicate that the government was able to enter the building with the Milk Producers' magnetic card, that a confidential informant gave it information needed to defeat Amalgamated's alarm system, and that the phone company also gave it information that enabled it to defeat the system. The affidavits indicate that these independent sources not only could have been but in fact were used to defeat the alarms and place the microphones after the April 7 order was issued.*fn25 Thus, defendants have not shown that the unlawful entries enabled the government to obtain evidence that it would not have lawfully obtained absent the illegality.

Second, even if entries into Amalgamated were necessary to learn about Amalgamated's alarm system, there is no showing that they would not have been speedily accomplished legally after the April 7 order issued. It is clear that once an authorization for Title III surveillance issues, the government may surreptitiously enter the target's premises to plant microphones. See Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). In essence, the only conduct that we have held to be illegal is the two entries into Amalgamated, the first to observe the reception area, and the second to enter the alarm and frame rooms. There is no reason that, absent the earlier entries, the government would not have speedily and lawfully had Tickel enter the building and do exactly the same things he alleges he did earlier to enable the FBI to defeat the alarm system. Indeed, there is no reason it all could not have been done in one day, and no contention that, absent the unlawful entries, the government would not have installed the microphones as soon as was practicable. Certainly, there is no reason to believe that the government would not have performed the necessary entries by April 18,*fn26 which is the earliest oral interception which was offered at trial.*fn27 Thus, absent the earlier entries the FBI still would have developed the information to defeat the alarm system in time to intercept all of the conversations offered at trial. Finally, the Tickel affidavit indicates that the unlawful entries were entirely unnecessary. The parking lot surveillance revealed that the cleaning people left the doors unlocked, the alarm off and the offices unattended every day.*fn28 Tickel used this fact to enter the office the second time. That being the case, the FBI would easily have slipped into the offices and planted the microphones immediately after April 7 without ever having to defeat the alarm system. Thus, the government would have intercepted the conversations offered at trial absent the unlawful conduct. Suppression is unwarranted.


Defendants contend that the government's failure to disclose the unlawful entries in its April 7 application for a Title III authorization order violated 18 U.S.C. § 2518(1)(e) (1976). The statute requires disclosure of "all previous applications . . . for authorization to intercept" conversations. The unlawful entries clearly were not "applications." However, while defendants concede that the government did not violate the letter of the statute, they argue that it undermined its underlying purpose. Congress intended the government to disclose prior applications since disclosure of a history of invasion of the target's privacy might make the judge more reluctant to authorize further surveillance. See United States v. Bellosi, 501 F.2d 833, 838-39, (D.C.Cir. 1974).

Defendants' argument must be rejected for three reasons. First, it is at odds with the language of the statute. The statute requires disclosure of no more than prior "applications." We have previously construed the statute to require disclosure of no more than what it says on its face — prior applications for surveillance. See United States v. Dorfman, 542 F. Supp. 345, 400 (N.D.Ill. 1982).*fn29 We see no reason to depart from that holding.

Second, defendants' proposed construction of the statute is unworkable. Defendants propose that the statute be read as if it said "invasions of privacy" rather than "applications." No workable definition of "invasion of privacy" is proposed. The concept is so amorphous that it would be practically impossible for FBI agents to comply with the statute.*fn30

Third, even if the statute were violated, this would not justify suppression. Had the FBI disclosed the prior entries to Chief Judge Parsons, it would have not provided any reason for him to refuse to authorize the surveillance. He could have ordered the FBI to use its independent sources of information to defeat the alarm system, or conduct additional entries to defeat the system after receiving authority. Because the FBI could have defeated the alarm system without relying on the unlawful entries, there is no reason to believe Chief Judge Parsons would have concluded that the April 7 application was tainted by the unlawful entries had they been disclosed to him. The failure to disclose the entries did not enable the government to obtain surveillance it would not have otherwise been able to obtain and hence does not merit suppression under § 2518(10)(a)(i).


Defendants argue that the government's failure to disclose the unlawful entries to the Attorney General's designate violated 18 U.S.C. § 2516(1) (Supp. II 1978), which requires that the approval of the Attorney General or his designate be obtained before an application for electronic surveillance is submitted to a court. Defendants correctly note that the purpose of the statute was to ensure that a senior official reviewed the application and determined that the proposed intrusion on the target's privacy was warranted before electronic surveillance was authorized. See United States v. Giordano, 416 U.S. 505, 515-23, 94 S.Ct. 1820, 1826-30, 40 L.Ed.2d 341 (1974). Defendants then argue that since the unlawful entries were not disclosed to the Attorney General's designate*fn31 he was deprived of an opportunity to consider the complete facts when evaluating the application and hence was unable to exercise his independent judgment in the manner Congress intended. Again, defendants' position lacks merit for three reasons.

First, the letter of the statute was complied with here. The Attorney General's designate did approve the applications, which is all the statute requires.*fn32 Moreover, Congress intended that beyond ensuring that the authorization was given, courts engage in no review of the authorization decision. The purpose of the statute was to have an official high enough in the Department of Justice to be subject to political checks and balances go on the line by authorizing the application. See Giordano, 416 U.S. at 520, 94 S.Ct. at 1829. Congress intended the political process, and not the courts, to hold the authorizing official responsible for his decision and to review that decision. Thus, § 2516(1) depends on political and not judicial review.

Second, defendants' position is not supported by any authority. To the contrary, courts have consistently held that the government need not even demonstrate that the Attorney General or his designate personally reviewed the application or supporting materials before authorizing investigation. See United States v. Bailey, 607 F.2d 237, 241 (9th Cir. 1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980); United States ex rel. Machi v. United States Department of Probation and Parole, 536 F.2d 179, 184 (7th Cir. 1976); United States v. Feldman, 535 F.2d 1175, 1180-81 (9th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976); United States v. Turner, 528 F.2d 143, 150-51 (9th Cir.), cert. denied, 423 U.S. 996, 96 S.Ct. 426, 45 L.Ed.2d 371 (1975) and 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1976); United States v. Acon, 403 F. Supp. 1189, 1194-95 (W.D.Pa. 1975); United States v. Garramone, 374 F. Supp. 256, 259-60 (E.D.Pa. 1974). If the statute is not violated when the Attorney General's designate does not even bother to look at the application, it could hardly be violated when not all the pertinent information is disclosed to him in the application and supporting materials.

Third, even if the statute had been violated suppression would not be warranted. If the unlawful entries had been disclosed, there is no reason to believe that the Attorney General's designate would have concluded that they should preclude the requested surveillance. Like Chief Judge Parsons, he could have concluded that the government nevertheless had lawful devices at its disposal for defeating the security system. There is no showing that the failure to disclose the entries enabled the government to intercept conversations it would not otherwise have been able to intercept.


Finally, we address defendants' constitutional arguments in favor of suppression. They fall into two categories.

First, defendants contend that the failure to disclose the unlawful entries in the April 7 application voids that application under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which holds that a warrant application which contains intentional or reckless misstatements of fact is void under the fourth amendment.*fn33

Franks is only violated by misrepresentations or omissions that are material to the application in the sense that the warrant would not have issued absent the misrepresentation or omission. See United States v. Dorfman, 542 F. Supp. 345, 365, 378 & n. 32 (N.D.Ill. 1982). Under that standard the failure to disclose the entries was not material. The information derived from the entries was not relevant to the facts recited in the applications so it could hardly have been material to Chief Judge Parsons' decision to grant the application. Neither did any of the information learned during the entries detract from or negate the showing of probable cause made in the application. Moreover, as noted in part VI, supra, there is no reason to believe that Chief Judge Parsons would not have authorized the surveillance had the entries been disclosed. Since probable cause to conduct the surveillance still existed, and means independent of the unlawful entries existed for installation of the microphones, the unlawful entries would have had no effect on the decision Chief Judge Parsons had to make — whether the government had sufficient reason to invade defendants' privacy by intercepting their conversations.*fn34

Second, defendants argue that suppression is constitutionally required because the installation of the microphones and interception of conversations by means of them is a fruit of the unlawful entries at Amalgamated and must be suppressed under the rule of Wong Sun discussed above. However, where there is a source for the evidence the government seeks to offer which is independent of the unlawful conduct, the fourth amendment does not require suppression of the fruits of an unlawful search or seizure. See United States v. Crews, 445 U.S. 463, 471-73, 100 S.Ct. 1244, 1249-51, 63 L.Ed.2d 537 (1980); Alderman, 394 U.S. at 183, 89 S.Ct. at 972; Wong Sun, 371 U.S. at 487, 83 S.Ct. at 417; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920). Our court of appeals has noted that this rule has three specific applications.

  [C]ontroverted evidence is not fruit of the poisonous
  tree when (1) the evidence was discovered by an
  independent source; (2) the evidence is sufficiently
  distant in causal connection from the illegal search
  and seizure so that the connection has become so
  attenuated as to dissipate the taint; or (3) the
  evidence inevitably would have been gained even
  without the unlawful search.

United States ex rel. Owens v. Twomey, 508 F.2d 858, 865 (7th Cir. 1974). See also United States v. Piet, 498 F.2d 178, 181 (7th Cir. 1974).

Assuming defendants had standing to make this fruit of the poisonous tree argument, they would fail since this case fits into the first and third situations listed in Owens. First, the government had sources which it used to obtain the information necessary to defeat Amalgamated's security system and plant the microphones shortly after April 7 independent of the unlawful entries. See part VI, supra. Second, because the government was authorized to break into Amalgamated and do what was necessary to plant the microphones after the April 7 order was issued, the government would have been able to break into Amalgamated and duplicate the unlawful entries immediately after April 7, thus enabling it to defeat the security system and plant the microphones prior to the date of the first oral interception which was used at trial. See part VI, supra. Thus, the government would have inevitably planted the microphones and intercepted the conversations that were used against defendants anyway, even absent the illegalities. For these reasons, none of the evidence used by the government need be suppressed as fruits of the unlawful entries at Amalgamated.*fn35 As noted above, defendants' argument to the contrary is premised on nothing more than speculation that the government would not have been able to plant the microphone promptly after the April 7 order. Nothing in the Tickel affidavit supports this position and the government's affidavits affirmatively refute it. Defendants

  are unable to suggest any specific basis in support
  of their claim that the government's evidence at
  trial might have been tainted. . . . Although the
  government has the ultimate burden of persuasion to
  show that its evidence is untainted, Alderman v.
  United States, 394 U.S. 165, 183 [89 S.Ct. 961, 972,
  22 L.Ed.2d 176] (1969), nevertheless [defendants]
  must come "forward with specific evidence
  demonstrating the taint." Id. Under the circumstances
  of the present case, where [defendants] failed to
  provide some minimal demonstration of a basis for
  their allegation of taint, we cannot say that it [i]s
  improper for the trial court to decline to hold the
  extensive evidentiary hearings which [defendants
  argue are] required.

United States v. DiMuro, 540 F.2d 503, 511 (1st Cir. 1976) (footnote omitted), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977).*fn36


The last basis on which defendants seek suppression is this court's supervisory power over the administration of justice. Because the government has engaged in misconduct in the course of the investigation that led to this prosecution, defendants argue that we should suppress its evidence.

Before analyzing the specific contentions, it must be borne in mind that the supervisory power "is not `a chancellor's foot veto [by the District Court] over law enforcement practices of which it did not approve.'" United States v. Payner, 447 U.S. 727, 750-51, 100 S.Ct. 2439, 2453-54, 65 L.Ed.2d 468 (1980) (Marshall, J., dissenting) (quoting United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973)). Only if the government's misconduct has some nexus with the evidence offered against these defendants can the power be employed, since "this Court has no general supervisory authority over operations of the Executive Branch," Payner, 447 U.S. at 737, 100 S.Ct. at 2447 (Burger, C.J., concurring). Cf. United States v. Hasting, ___ U.S. ___, ___ - ___, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96 (1983) (harmless error doctrine applies to the use of the supervisory power).

Bearing in mind the limitations of the supervisory power, we decline to exercise it in this case for two reasons.

First, because we have held that defendants lack standing to challenge the unlawful conduct at issue, exercise of the supervisory power is inappropriate. The Supreme Court squarely held as much in Payner, stating that the defendant's lack of fourth amendment standing also prevented him from invoking the supervisory power.

  Our Fourth Amendment decisions have established
  beyond any doubt that the interest in deterring
  illegal searches does not justify the exclusion of
  tainted evidence at the instance of a party who was
  not the victim of the challenged practices. [citing
  Rakas and Alderman] The value assigned to the
  competing interests do not change because a court has
  elected to analyze the question under the supervisory
  power instead of the Fourth Amendment.

447 U.S. at 736-37, 100 S.Ct. at 2447 (citations and footnote omitted). Because defendants do not have standing to challenge the unlawful conduct at issue,*fn37 we must reject the use of the supervisory power "as a substitute for established Fourth Amendment [standing] doctrine." Id. at 736 n. 8, 100 S.Ct. at 2446 n. 8.*fn38

Second, defendants have not demonstrated a nexus between the unlawful conduct and the evidence used against them at trial. In United States v. Cortina, 630 F.2d 1207 (7th Cir. 1980), on which defendants rely, the court began its discussion of the supervisory power issue by writing,

  One inescapable fact underlies the disposition of
  this appeal: the search here occurred only because
  [the government] lied to the magistrate. As the
  district court found, the affidavit lacked probable
  cause without its false assertions. This search never
  should have taken place.

Id. at 1213. That is not the case here. As our prior holdings have made clear, the government could have intercepted the conversations offered at trial even if the unlawful conduct had not occurred, either by using independent sources of information to defeat the alarm system, or by using surreptitious entries to learn about the system after Chief Judge Parsons had issued his orders. Nor did the government make any misrepresentations of fact to Chief Judge Parsons that were material to the decision he had to make on April 7. Had the entries been disclosed, there is no reason to believe his decision would have been any different. Because the evidence used at trial was not in any legally significant sense a product of the governmental misconduct there is no justification to suppress that evidence under the supervisory power. To do so would be to act not because of any effect the misconduct had on the judicial process but merely to express our disapproval of the government's behavior. That is exactly the sort of "chancellor's foot veto" which we should not exercise under the supervisory power.


Defendants have filed a number of motions for discovery in an attempt to obtain evidence which corroborates Tickel's affidavit and which they would use in the evidentiary hearing that they request on their motions for new trial. Since we have held that even if proven the Tickel allegations do not entitle defendants to a new trial there is no need for either discovery or an evidentiary hearing.

Defendants' motions for new trial and discovery are denied.

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