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UNITED STATES v. TORRES

March 8, 1985

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALEJANDRINA TORRES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Leighton, District Judge.

MEMORANDUM

In this criminal case, two national electronics news media corporations, National Broadcasting Company, Inc. ("NBC"), and American Broadcasting Companies, Inc. ("ABC"), move the court for leave to intervene. Their interest in this prosecution is the prospect that at trial before a jury the evidence against defendants will include tapes of intercepted aural and visual communications, which, according to the government, show that before their arrest, defendants were engaged in a seditious conspiracy against the United States, one of the charges in this eight-count superseding indictment.

The corporations, as electronics news media institutions, want these tapes made available to them in one of two ways. First, and this is what they prefer, they want this court to enter orders which would allow them to cooperate, install wires in the courtroom, capture the contents of the tapes simultaneously with their introduction as evidence to the jury. The corporations argue that because of the nature of the charges in this case, alleged acts of domestic terrorism, the public has an interest in knowing the contents of the tapes as the evidence is presented to the jury. In the alternative, if their first request is not granted, the corporations ask that this court enter an order that would make the contents of the tapes available to them, during or after recesses, at convenient times during the trial.

The government has no objection to these news media requests. Defendants, however, object on the ground that the broadcasting corporations will give a distorted and unfair construction to the intercepted evidence against them; that the media coverage which the broadcasting corporations intend to give to this case will be biased, they already having branded defendants terrorists despite their pleas of not guilty to the government's charges; and that making the audiotapes and videotapes available to the corporations will serve only "to gratify private spite or promote public scandal." For these reasons, defendants insist, the applications by the corporations should be denied because granting them would only give the news media an opportunity to publicize the contents of the tapes and serve the improper purpose of using defendants' trial as an official source for propaganda.

Based on the following facts and applicable law, and having resolved the issues presented, this court grants the motions for leave to intervene, denies the motions for orders granting the broadcasting corporations permission to install wires in the courtroom and instantaneously capture and broadcast the audio and videotapes; but, in the alternative, grants the corporations' motions for an order which, at their expense, will permit them to copy all the audio and videotapes admitted in evidence, promptly after such tapes are presented to the jury at the trial of this cause, but in no event later than the conclusion of the half-day court session at which the tapes are played to the jury.

I

On June 29, 1983, Alejandrina Torres, Edwin Cortes, Alberto Rodriguez, and Jose Rodriguez were arrested in Chicago by agents of the government on a charge that they were members of a seditious conspiracy against the United States by which the conspirators sought "to achieve their goals and thereby oppose . . . the authority of the government of the United States by means of force, terror and violence, including the construction and planting of explosives and incendiary devices at banks, stores, office buildings and government buildings . . ." in the metropolitan area of the City of Chicago. Defendants were arraigned; and bail was set at $5,000,000 cash for Alejandrina Torres and $10,000,000 cash for each of the other defendants.

At a conference which the parties were required to hold under a local rule of this court, and at pretrial proceedings that followed, the government disclosed to defendants that at various dates between January 18, 1983 and shortly before the arrests, the United States Attorney for this district, acting by one of his assistants, applied to the Chief Judge of this court for orders pursuant to Section 2518 of Title 18, United States Code, authorizing FBI agents to intercept wire and oral communications in two locations, Apartment 505, 736 W. Buena Street and Apartment 211, 1135 Lunt Avenue, Chicago, Illinois. It appears that agents had reasons to believe Alejandrina Torres and Edwin Cortes were renters of the apartments and the subscribers to the telephone in the Buena Street location.

The orders that issued, included authority for the agents to install devices which enabled them "to surreptitiously enter the [apartment in question] . . . and at night if necessary . . . for the purpose of installing, concealing, adjusting and . . . removing aural interception and visual observation devices . . . that will visually monitor and record the activity taking place in furtherance of the [alleged conspiracy]." In all, in addition to interceptions of wire and oral communications, the government as a result of the visual surveillance, obtained approximately 130 hours of videotapes contained in 52 separate reels which, according to government agents, recorded the activities of defendants, or some of them, within the privacy of the two apartments. In at least one scene captured by one of the cameras, Alejandrina Torres and Edwin Cortes, according to the government, are seen engaged in the act of assembling a bomb.

  But on motion of one of the defendants, construed as having
been joined in by all of them, this court, after hearing the
parties, suppressed the videotapes on three grounds. First, Title
III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. § 2510 to 2520, on which the government relied, did not
authorize surreptitious entry of an apartment by agents of the
government for the purpose of installing cameras and engaging in
the interception of visual, as distinguished from aural
communications. Second, even if the statute had so authorized,
the United States Attorney had not complied with certain
procedural requirements of Title III. Third, no warrant, as that
term is known in Fourth Amendment law, had been obtained by the
United States Attorney. See United States v. Torres, 583 F. Supp. 86
 (N.D.Ill. 1984).

The government appealed; and on December 19, 1984, the court of appeals reversed the suppression order. United States v. Torres, 751 F.2d 875 (7th Cir. 1984). Now, in anticipation of trial of this case on the merits, and on the assumption that only unsuppressed videotapes are involved, the court issues this Memorandum in order to furnish all interested parties with the reasons for its grant of the motions of NBC and ABC for leave to intervene, denial of their motions for orders allowing them to install wires in the courtroom and capture the contents of the tapes simultaneous with their introduction in evidence; and, the reasons for the court's grant of the alternative request of the two broadcasting corporations.

II

A

  Defendants' only argument against grant of the motions for
leave to intervene is in a footnote to their opposition
memorandum in which they say that "[c]ounsel has found no cases
[sic] which specifically discuss the right of intervention in a
criminal matter." This lack of authority for intervention in a
criminal prosecution is understandable. "Intervention — a
procedure by which an outsider with an interest in a lawsuit may
come in as a party though he has not been named as a party by the
existing litigants — is a comparatively recent innovation in
Anglo-American legal procedure." 7A Wright & Miller, Federal
Practice & Procedure § 1901. It is a proceeding whereby a person
is permitted to become a party in an action between other
persons, after which litigation proceeds with both original and
intervening parties. Richins v. Mayfield, 514 P.2d 854, 85 N.M. 578
 (1973). In a criminal case, it is rare that one person ever
has enough interest ...

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