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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 ...

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