however, Agent Dickerson testified that he began monitoring
Judge Olsons' chambers with other agents before operating the
microphone and recording equipment by himself. Once again, it
is not clear whether Agent Dickerson had any prior monitoring
All three agents testified concerning the special
minimization rules set forth in the two memos dated November
13 and 29, 1980. Those rules, which cautioned against the
interception of particular types of conversations, were to be
kept in effect until the first clearly "criminal" conversation
was intercepted. In addition, all three agents testified that
they would leave the microphone on and the recording equipment
off when there was no activity detectable in Judge Olson's
chambers; the agents also testified, however, that as soon as
a noise was detected in the chambers, they would begin
recording and resume normal minimization procedures.
b. Applicable Statutory Provisions
Title 18, U.S.C. § 2518(5) provides, in relevant part, that
the interception of oral communications "shall be conducted in
such a way as to minimize the interception of communications
not otherwise subject to interception under this chapter . . ."
Section 2518(8)(a) provides that "[t]he contents of any wire or
oral communication intercepted by any means authorized by this
chapter shall, if possible, be recorded on tape or wire or
other comparable device." Finally, Section 2511(2)(c) provides
that "[i]t shall not be unlawful under this chapter for a
person acting under color of law to intercept a wire or oral
communication, where such person is a party to the
communication . . ."
The definitions of the key terms used in the Act are set
forth in Title 18 U.S.C. § 2510 (1982). The term "oral
communication" is defined as "any oral communication uttered by
a person exhibiting an expectation that such communication is
not subject to interception under circumstances justifying such
expectation." 18 U.S.C. § 2510(2) (1982) The statute provides
that "intercept means the aural acquisition of the contents of
any wire or oral communication through the use of any
electronic, mechanical or other device." 18 U.S.C. § 2510(4)
c. General Minimization
Defendants initially contend the government flagrantly
failed to minimize non-criminal conversations throughout the
course of the surveillance. Specifically, applying 30 and 90
seconds as the lengths of time necessary to minimize
particular types of conversations, the defendants conclude
that the government's agents minimized just forty-two percent
of the intercepts which were long enough to minimize.
Moreover, since the defendants allege that only four percent
of the intercepts long enough to minimize yielded any
intelligence, the defendants contend the monitoring agents
unreasonably seized fifty-four percent of the recorded
intercepts.*fn13 As a result, defendants contend the
suppression of all intercepted conversations is required. Not
surprisingly, the government's figures present a somewhat
different view of their efforts at minimization. There are two
principal reasons for the differences. Initially, the
government drastically reduces the number of intercepts upon
which the defendants' percentages are calculated. The
government does not include 598 instances when the recorder
was activated while Judge Olson was working alone at his desk
or while his chambers was unoccupied; since those instances
did not involve an aural acquisition of the contents of any
oral communication uttered by a person exhibiting an
expectation of privacy, the government concludes there were no
"intercepts". 18 U.S.C. § 2510(4) (1982). Moreover, the
government deducts seventy-four
interceptions of conversations involving Terry Hake; since
Hake had consented to the interception of oral communications
to which he was a party, the government contends the recording
of those conversations did not constitute intercepts.
See 18 U.S.C. § 2511(2)(c) (1982) and United States v. White,
401 U.S. 745, 752-53, 91 S.Ct. 1122, 1126-27, 28 L.Ed.2d 453
(1971). Finally, the government allowed the agents a much
longer period in which to determine whether a conversation
should be minimized; the government utilized 180 seconds as
constituting the period of time too short to minimize. See
United States v. Losing, 560 F.2d 906, 908-909 (8th Cir.) cert.
denied 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977).
Utilizing these assumptions, the government concludes that the
agents minimized approximately eighty two percent of the
intercepts that were long enough to minimize. (874 minimized,
195 not minimized; 145 additional non-minimized conversations
were classified as consensual).
In the view of this court, the assumptions utilized by the
government in arriving at its figures are reasonable. A 180
second time frame for deciding whether or not to minimize is
reasonable in this case. Id. As was previously noted, the area
under surveillance was noisy and subject to substantial
pedestrian traffic. Moreover, for the reasons previously
discussed, the vary nature of this type of electronic
surveillance requires that the monitoring agents be given a
longer time frame in which to minimize than in ordinary wiretap
cases. Thus, the sole issue is whether or not the government's
figures demonstrate compliance with § 2518(5)'s requirement
that electronic surveillance be conducted in such a manner as
to minimize the unauthorized interception of
Of the total intercepts that were long enough to minimize
and that were not minimized, only 10.6 percent involved
matters other than consensual conversations to which Terry
Hake was a party, or discussions which were suspicious,
clearly criminal or of intelligence value. Much higher
percentages have been found acceptable by other courts.
(See United States v. Quintana, 508 F.2d 867, 873 (7th Cir.
1975) and cases cited therein.) See also United States v. King,
335 F. Supp. 523, 541 (S.D. Cal. 1971) aff'd in part, rev'd in
part, 478 F.2d 494 (9th Cir.) cert. denied 414 U.S. 846, 94
S.Ct. 111, 38 L.Ed.2d 94 (1973). Thus, the statistical evidence
with respect to minimization does not reflect any intent by the
monitoring agents to avoid the statutory minimization
requirements, United States v. Hinton, 543 F.2d 1002 (2nd Cir.
1976) cert. denied 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589
(1977), or that their conduct was unreasonable under the
circumstances. Scott v. United States, 436 U.S. 128, 98 S.Ct.
1717, 56 L.Ed.2d 168 (1978). See also 54 A.L.R.Fed. 120.
Defendants' motion to suppress all of the intercepts is,
d. Particular Minimizations
Defendants also challenge the monitoring agents failure to
minimize specific conversations between Judge Olson and
certain unnamed attorneys prior to the interception of certain
purportedly criminal conversations. If the government had
properly minimized those conversations, the defendants contend
the purportedly criminal conversations would not have been
intercepted.*fn15 Thus, the defendants contend the
intercepts of those purportedly criminal conversations should
Defendants cannot move to suppress pertinent, criminal
conversations on the basis of § 2518(5)'s minimization
requirement. Section § 2518(5) merely applies to the
minimization of intercepted, non-pertinent, innocent
conversations; it does not proscribe a duty to minimize
pertinent, criminal conversations within the scope of the
authorized surveillance. See Scott v. United States,
436 U.S. 128, 141, 98 S.Ct. 1717, 1725, 56 L.Ed.2d 168 (1978).*fn16
Nor, absent a pattern of non-minimization, can a monitoring
agent's failure to minimize the interception of an apparently
innocent, non-pertinent conversation serve as a basis for
suppressing an intercepted criminal conversation. The concept
of minimization concerns the government's conduct "during the
duration of the authorized interception," United States v.
Scott, 504 F.2d 194, 197 (D.C. Cir. 1974) aff'd 436 U.S. 128,
98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), and requires a showing of
"repeated, unreasonable interceptions" before improper
minimization will be found. United States v. Pine, 473 F. Supp. 349
(D.Md. 1978). The interception of some innocent,
non-pertinent conversations is "inevitable." Id. Isolated
failures to minimize are, therefore, irrelevant. Thus, given an
overall pattern of proper minimization, a monitoring agent's
failure to minimize an innocent conversation immediately prior
to the interception of a criminal conversation is not a basis
Moreover, the logic upon which the defendants' contrary
conclusion is based, that if the government had properly
minimized the subject conversations would not have been
intercepted, is not sound. If the government had "properly
minimized" the specific innocent conversations to which the
defendants refer, in all probability, the subject criminal
conversations would still have been intercepted. Section
2518(5) permits the government to "spot check" even innocent
conversations to determine whether the subject of the
conversation has shifted. United States v. Losing,
539 F.2d 1174, 1180 (8th Cir. 1976) cert. denied 434 U.S. 969, 98 S.Ct.
516, 54 L.Ed.2d 457 (1977) Courts recognize that, "[a]t any
moment, the pleasantries might cease and the business begin."
United States v. Suguet, 547 F. Supp. 1034, 1037 (N.D.Ill. 1982)
Thus, in all likelihood, the government would still have
obtained the conversations complained of during subsequent
"spot checks". The defendants' contrary analysis, however, does
not provide for the resumption of monitoring at any point prior
to the end of an initially "innocent" conversation.
Finally, even if some authority did not exist for the
suppression of specific criminal interceptions based upon a
prior failure to minimize, it would not be applicable here.
All except one of the conversations complained of were
intercepted relatively early in the surveillance. Thus, no
prior pattern of innocent conversation had developed between
the interceptees. Moreover, at least one of the interceptions
involved an individual who's voice was not contained on the
monitoring agents' "familiarization tape". Finally, the
general circumstances of each of the intercepts provided the
agents with grounds for suspicion. Thus, in any event, the
monitoring agents were not under a duty to minimize. The
defendants' motion to suppress specific intercepts is,
e. Failure to Record
Finally, defendants object to the monitoring agents' failure
to record and minimize while listening to Judge Olson's empty
chambers. While this court shares the defendants' general
concern that such a
practice hypothetically could result in the loss of important
communications, this court cannot find that the procedure
violated § 2518(8)(a). As previously noted, that section merely
provides that, if possible, the contents of any "oral
communications" intercepted by electronic surveillance be
recorded. Silence in an empty chambers, whether anyone was
present or not, does not qualify as "oral communication".
Moreover, the defendants have offered absolutely no evidence to
indicate any conversations were actually lost as a result of
the procedure. United States v. Daly, 535 F.2d 434, 442 (8th
Cir. 1976) The agents testified that as soon as any noise was
detected in the chambers they immediately resumed recording.
Thus, the government's failure to record while listening to
Judge Olson's empty chambers did not constitute a violation of
F. Second Application and Authorization
Finally, defendants move to suppress the fruits of the
extended surveillance on the grounds that the finding of
probable cause for the second order was based upon
conversations obtained by specific failures to minimize and
upon an intentional misrepresentation of the contents of an
intercepted conversation between Judge Olson and Costello.
This court has previously rejected the defendants' arguments
with respect to the specific failures to minimize and finds no
misrepresentation regarding the government's recitation of the
subject conversation. Consequently, defendants' joint motion
to suppress the fruits of the second authorization is denied.
G. Costello's Motion to Suppress
Defendant, Costello, also filed a separate motion to
suppress the consensual recordings obtained by Terry Hake.
While recognizing that consensual recordings have been found
not to violate reasonable expectations of privacy, defendant,
Costello, contends the instant consensual recordings are
distinguishable because of their kind and degree.
Specifically, defendant, Costello, points out that Hake
recorded hundreds of hours of conversations, including
conversations between Costello and his clients and between
Costello and Hake, when Hake was acting as Costello's
attorney. Finally, defendant, Costello, seeks to disqualify
Hake as a witness against him because of their former
Even if Hake was an "indiscriminate recorder", the
government contends that suppression of his consensual
recordings would not be justified. As a practical matter, the
government notes that defendants often contend more selective
recording suggests exculpatory statements were edited or
omitted. The government also denies that any attorney-client
relationship ever existed between Hake and Costello, and in
any event, contends that it was destroyed by the crime and
fraud exception to the privilege. Moreover, the government
contends that it has no intention of introducing any of
Costello's statements to Hake dealing with the cases in which
Hake represented him into its case-in-chief.
Neither Title III or the Constitution prohibits the
recording of a conversation when a party to the conversation
consents to its interception. See 18 U.S.C. § 2511(2)(c) (1982)
and United States v. White, 401 U.S. 745, 749-52, 91 S.Ct.
1122, 1124-26, 28 L.Ed.2d 453 (1971); see also United States v.
Boley, 730 F.2d 1326, 1332 (10th Cir. 1984); United States v.
Kelly, 708 F.2d 121, 124 (3rd Cir.) cert. denied, ___ U.S.
___, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983); and United States v.
Salisbury, 662 F.2d 738, 739-40 (11th Cir. 1981) cert. denied
457 U.S. 1107, 102 S.Ct. 2907, 73 L.Ed.2d 1316 (1982).
Moreover, this court has not been made aware of, or located,
any authority limiting the scope or duration of such
recordings. Thus, defendant, Costello's, motion to quash the
subject consensual recordings is denied.
Finally, in view of the government's representation that it
will not utilize any of the consensual recordings regarding
Hake's asserted representation of the defendant, this court
need not decide whether those specific
recordings should be suppressed. In addition, so long as Hake
will not testify concerning the cases in which he represented
Costello, this court need not decide whether Hake should be
excluded from testifying concerning his other transactions
with the defendant. Thus, defendant, Costello's, motion to
prohibit Terry Hake from testifying is denied.
For all of the reasons set forth herein, the defendants'
various motions are denied. The parties are ordered to appear
for a status hearing on June 17, 1985 at 10:00 a.m.