The opinion of the court was delivered by: ROVNER
The government alleges in this criminal prosecution that defendant David J. Shields, formerly the Chief Judge of the Chancery Division of the Circuit Court of Cook County, Illinois, accepted bribes from his co-defendant, Pasquale F. DeLeo, an attorney, in exchange for favorable treatment in a case pending before Shields. That case, as it turns out, was one of a series of mock cases filed by federal agents investigating corruption in the Illinois courts. Much of the evidence against both Shields and DeLeo was obtained by the government by means of electronic monitoring equipment which it installed in Shields' chambers pursuant to an order issued by then acting Chief Judge James B. Moran on August 29, 1988. Shields has moved to suppress the evidence obtained through electronic surveillance and to dismiss the superseding indictment, contending, inter alia, that authorization for the surveillance was based upon materially false information which the government had submitted in support of its application to bug Shields' chambers. For the reasons set forth below, Shields' motions to suppress and dismiss are denied.
The fictional lawsuit which the government used as the vehicle for its undercover investigation was filed in the Chancery Division of the Circuit Court of Cook County, Illinois, on July 12, 1988. The case, Nichols v. Wilson, Case No. 88 CH 6337, was assigned by lot to Shields. (See Indictment para. 1(e).) Robert J. Cooley, an attorney cooperating with the Federal Bureau of Investigation ("FBI"), assumed the role of the plaintiff's attorney in this contrived suit. Beginning just prior to the date the Nichols case was filed and continuing through the months of July and August, 1988, Cooley allegedly engaged in a series of conversations with Patrick Marcy, secretary of Chicago's First Ward Democratic Organization and, defendant DeLeo about the possibility of either persuading Shields to rule favorably to Cooley's fictitious client or having the case assigned to another judge who could be so persuaded. These conversations were consensually monitored by means of a body recording device attached to Cooley's person. Based upon the evidence which it gathered through Cooley in the months of July and August, the government on August 29, 1988, submitted an application to Judge Moran for permission to intercept oral conversations from Shields' chambers pursuant to the provisions of the federal wiretapping statute, 18 U.S.C. § 2518.
The government submitted the 17-page affidavit of FBI Special Agent John S. Bowen in support of its application. According to the affidavit, Bowen had been detailed to the Chicago field office of the FBI for the prior four years, and during that time had been assigned to investigate judicial corruption exclusively. (Bowen Aff. para. 3.) In his affidavit, Bowen laid out the background of the government's ongoing investigation in connection with the Nichols suit, and detailed the evidence which the government had gathered to date through Cooley.
Many of the particular representations that Bowen made in his affidavit have been set forth in detail below; consequently, a lengthy summary is not required here. Briefly, Bowen asserted that although Marcy ultimately had been unable to offer Cooley any assistance in securing a favorable disposition of the Nichols suit, DeLeo had represented to Cooley on August 16, 1988, that he could arrange to fix the case by passing along money to Shields. (Bowen Aff. para. 8D.) According to the affidavit, Cooley and DeLeo had agreed upon a figure of $ 2,500 to be paid to Shields in exchange for a favorable ruling upon a motion for an injunction that Cooley intended to bring in the immediate future. (Id.)2 Bowen further represents that Cooley and DeLeo met the following day, at which time DeLeo scheduled a meeting with Shields on the morning of August 19, 1988, prior to the hearing which had been set for later that morning on Cooley's motion for a temporary restraining order in the Nichols case. (Id. para. 8E.)
According to Bowen's affidavit, Cooley and DeLeo met again on August 24, 1988. (Bowen Aff. para. 8G.) At that time, Bowen represented, the two discussed Cooley's intention to appear before Shields on August 29 and request a continuance of the temporary restraining order. (Id.) DeLeo purportedly encouraged Cooley to have his client present, assuring Cooley that he would make sure Shields ruled in Cooley's favor. (Id.) Bowen further represented that DeLeo instructed Cooley to call him on the morning of August 29, 1988, and indicated that he would arrange to meet with Shields prior to the hearing that day. (Id.) According to Bowen, DeLeo indicated to Cooley that Shields was content with the $ 2,500 he had been paid, and recommended that Shields be paid an additional "two bits," which Cooley took to mean another $ 2,500. (Id.)
Bowen's affidavit reports that Cooley appeared before Shields on August 29, 1988, in the Nichols case, and at that time a representative of the fictional defendant requested a continuance until the following day. (Bowen Aff. para. 8I.) Shields allegedly granted the request. (Id.) Cooley and DeLeo spoke later that day, according to Bowen, and DeLeo indicated he would see Shields prior to the time Cooley was due back in court on the following day. (Id.) Cooley intended to present a request to extend the temporary restraining order when he next appeared before Shields, Bowen represents; and Cooley planned to meet with DeLeo beforehand and pay him $ 2,500 in exchange for a favorable ruling on the request. (Id.)
Having set forth these factual assertions, Bowen stated his belief that conversations would occur between Shields and DeLeo in Shields' chambers on August 30, 1988, prior to the scheduled hearing in the Nichols case that day. (Bowen Aff. para. 8I.) Bowen anticipated that the two men would discuss the disposition Cooley wanted as well as the money received from Cooley, and that DeLeo would deliver the bribe to Shields at that time. (Id.)
On the evening of August 29, 1988, Judge Moran granted the government's application for leave to begin monitoring oral conversations within Shields' chambers. The authorization order which Judge Moran signed reflected his findings that there was probable cause to believe that: (1) Shields and DeLeo had committed and were committing offenses involving the interference with commerce by extortion and the conspiracy to do so, in violation of 18 U.S.C. § 1951, and racketeering, in violation of 18 U.S.C. § 1962; (2) oral communications concerning these offenses, in particular communications regarding the solicitation and receipt of bribes to influence the handling of civil cases pending in the Circuit Court of Cook County, Chancery Division, would be intercepted from Shields' chambers; and (3) Shields' chambers had been and were being used by defendants in connection with these offenses. (Aug. 29, 1988 Order Authorizing Interception of Oral Communications at 1-2, paras. A, B, D.) Judge Moran also found that "normal investigative procedures have been tried and failed to achieve all of the objectives of the investigation, reasonably appear unlikely to succeed if continued, or are too dangerous." (Id. at 2, para. C.)
Shields and DeLeo have filed their motions to suppress pursuant to the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., and Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Defendants contend that the affidavit which the government submitted in support of its application to conduct electronic surveillance of Shields' chambers contained material misstatements and omissions, and that absent these misrepresentations and omissions, probable cause to support the surveillance was lacking. See generally id. at 155-56, 98 S. Ct. at 2676.
The Supreme Court's opinion in Franks sets forth the general framework governing a Fourth Amendment challenge to the validity of a search warrant which the defendant contends was issued on the basis of factual misrepresentations:
Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to a finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
438 U.S. at 155-56, 98 S. Ct. at 2676. See also United States v. McNeese, 901 F.2d 585, 593-94 (7th Cir. 1990). Omissions from the affidavit are evaluated on the same basis. Id. at 594.
The omission of a fact from an affidavit is material only if it amounts to deliberate falsehood or reckless disregard for the truth. Mere negligence by the affiant does not constitute reckless disregard for the truth. Nor is an omission material if, in context, the information was of such minimal significance that its omission could not reasonably have affected the magistrate's [or the judge's] judgment in finding probable cause to search.
Id. (citations omitted). The Seventh Circuit has applied this same framework to motions to suppress the fruits of electronic surveillance authorized under Title III. See United States v. Williams, 737 F.2d 594, 602 & n.5, 604 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377, 105 S. Ct. 1355 (1985).
Within this framework, the defendant's initial burden is to make a "substantial preliminary showing" that the affidavit submitted in support of the government's warrant application was materially misleading. See 438 U.S. at 155, 98 S. Ct. at 2676. As the Supreme Court stressed in Franks, this burden is not minimal:
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient.
A substantial preliminary showing that the affidavit contained reckless or deliberate falsities and omissions must be followed by a substantial showing that the affidavit purged of those falsities and supplemented by the omissions would not be sufficient to support a finding of probable cause.
Id. at 596, citing Franks, 438 U.S. at 171-72, 98 S. Ct. at 2684. See also id. at 156, 98 S. Ct. at 2676; United States v. Muhammad, 928 F.2d 1461, 1464-65 (7th Cir. 1991).
Having reviewed defendants' motions as well as Agent Bowen's affidavit with these requirements in mind, the Court finds that Shields has not made a substantial showing sufficient to require a Franks hearing. As set forth below, the most Shields is able to demonstrate is that in certain instances, Bowen made representations which were mistaken. Even this conclusion, however, requires one to indulge Shields in certain assumptions. More importantly, Shields has come forward with no evidence tending to show that the purported inaccuracies amounted to deliberate or reckless misrepresentations on Bowen's part. To the extent there are any discrepancies in Bowen's affidavit, they are not of such magnitude that they give rise to an inference of a disregard for the truth, nor has Shields submitted any additional evidence from which such an inference could be drawn. In sum, the most one can glean from Shields' objections is a showing of minor negligence in certain isolated instances. This falls far short of what is required in order to merit a Franks hearing. See 438 U.S. at 171, 98 S. Ct. at 2684; McNeese, 901 F.2d at 594.
However, even if the Court were to assume that defendants had succeeded in establishing that Agent Bowen's affidavit did contain deliberate false statements or omissions, it nonetheless would conclude that these statements or omissions, taken either individually or together, are immaterial. In other words, the Court finds that stripped of the purported misstatements and supplied with the purported omissions, the Bowen affidavit would nonetheless have been sufficient to supply probable cause for the electronic surveillance in this case. See Franks, 438 U.S. at 171-72, McNeese, 901 F.2d at 594. The Court's findings as to each of the asserted misrepresentations and omissions are set forth below. In addressing in detail each of the many objections Shields has made to the affidavit, the Court does not mean to suggest that it entertains any doubt that the affidavit, viewed as a whole, amply supports Judge Moran's determination of probable cause. See n.3, supra. Rather, the Court has undertaken a thorough review of Shields' objections merely in order to afford the defendants the benefit of every reasonable doubt. But see Muhammad, 928 F.2d at 1465 (doubtful cases should be resolved in favor of upholding warrant).
B. Purported Misrepresentations and Omissions
1. Shields' purported satisfaction with money
On August 24, 1988, CW had a consensually monitored conversation with DeLeo. DeLeo recommended that CW have his client in court on August 29, 1988, when CW would be seeking an extension of the temporary restraining order. DeLeo said that if CW had his client there, he (DeLeo) would make sure that Judge Shields ruled in CW's favor. DeLeo also told CW to call him at 9:00 a.m. on August 29, 1988 and DeLeo would go to see the judge before the 11:00 a.m. hearing. DeLeo also indicated that the judge was satisfied with the $ 2,500 paid on August 19, 1988. DeLeo also recommended that the judge be paid an additional "2 bits" (believed by CW to mean $ 2,500) for any subsequent action taken by the judge. Based upon these statements, affiant believes DeLeo paid the bribe money to Shields sometime between August 19, 1988 and August 24, 1988.
(Emphasis supplied.) According to Shields, the representation that DeLeo had told Cooley that Shields was satisfied with the $ 2,500 he had received was an outright fabrication. In Shields' view, this was a misrepresentation which was critical to the success of the government's application to bug Shields' chambers, for it was offered to establish DeLeo's personal knowledge that Shields had accepted a bribe. Stripped of this misrepresentation, Shields contends, the Bowen affidavit contains nothing more than evidence of "boasting and larceny by trick on the part of DeLeo"; and without it, Shields further asserts, Judge Moran would not have granted the government's Title III application. (App. at 4.)
In response, the government contends that Bowen's statement was a completely accurate representation of what Cooley had told him. Thus, after Bowen discussed the August 24 meeting with Cooley, he wrote in an FBI 302 that "Smith [Cooley] advised that DeLeo also indicated that the Judge was satisfied with the last $ 2,500 payoff." (Bowen 302, dictated Aug. 24, 1988/transcribed Aug. 31, 1988.)
Because the "last $ 2,500 payoff" as of the August 24 meeting was the one Cooley had [allegedly] made on August 19, 1988, the government contends, Bowen's affidavit was true to what Cooley had recounted of his conversation with DeLeo. (Gov. Mem. at 36.) The only basis for Shields' argument to the contrary, the government further argues, lies in the transcript of this conversation. The initial draft of this transcript reported the following exchange:
COOLEY: Alright, but I mean, with him, was he happy with what I gave him before.
COOLEY: Ok, as long as he's happy that's the, you know the main thing.
(Draft Transcript at 4, Tape No. 170, Aug. 24, 1988.)
Shields maintains that the word "Yeah" cannot be heard on the tape. The government concedes that point and has revised the transcript to indicate that DeLeo gave no response which is audible on the tape. But the dispute about the accuracy of the transcript has nothing to do with the accuracy of Bowen's affidavit, the government maintains. The transcript had not been prepared at the time Bowen's affidavit was executed, and the affidavit does not purport to quote DeLeo as if the transcript had been prepared. (Gov. Mem. at 37.) Finally, the government maintains that to the extent that the revised transcript indicates that DeLeo made no audible response to Cooley's inquiry regarding the judge's satisfaction with the money previously paid to him, it does not call the veracity of Bowen's affidavit into question. According to the government, Cooley never stated nor did Bowen represent, that DeLeo had orally confirmed Shields' contentment with the payoff; the affidavit simply states that DeLeo had "indicated" Shields was satisfied. (Gov. Mem. at 37-38.) Moreover, assuming that Cooley had reported to Bowen that DeLeo had given an oral response to his question, it would not have been improper for Bowen to rely upon that report and so represent in his affidavit. (Id. at 38, citing United States v. McDonald, 723 F.2d 1288, 1293 (7th Cir. 1983), cert. denied, 466 U.S. 977, 104 S. Ct. 2360, 80 L. Ed. 2d 831 (1984).)
Having reviewed Bowen's affidavit, his form 302 summary of Cooley's account of the August 24 encounter with DeLeo, and both the tape and transcripts of this encounter, the Court agrees that Shields has made no showing of a reckless or deliberate falsity which would entitle him to an evidentiary hearing. Bowen's representation that "DeLeo also indicated that the judge was satisfied with the $ 2,500 paid on August 19, 1988" does not depart in any manner from the 302 summary Bowen prepared after debriefing Cooley. Thus, assuming the accuracy of the 302, there is no suggestion that Bowen misrepresented the version of the conversation that Cooley had given him. Nor does the tape recording of the conversation between DeLeo and Cooley suggest that Cooley, let alone Bowen, had misrepresented the import of the exchange between the two. Having listened to the recording, the Court agrees that one cannot discern from it an audible response to Cooley's question about Shields' satisfaction. However, given the imperfections of body recording devices and the occasionally transient quality of the recordings, the inability to hear a response on the tape does not exclude the possibility than a faint oral response not picked up by the recording device was nonetheless given; nor does it exclude the possibility that DeLeo may have answered the inquiry with a some form of nonverbal response.
Indeed, the context of the conversation suggests that DeLeo did give some sort of affirmative response. Thus Cooley goes on to remark (without subsequent correction or contradiction from DeLeo), "Ok, as long as he's happy . . . ." Of course, it remains for the jury to decide, after hearing both Cooley's testimony about the conversation and the recording of it, what DeLeo actually indicated to Cooley. However, the record as it now stands suggests that Bowen's summary of the August 24 exchange between DeLeo and Cooley was entirely faithful to what transpired. Furthermore, Shields has brought forward no evidence which suggests that Bowen recklessly or deliberately misrepresented the conversation.
2. DeLeo's statement to Cooley suggesting Shields was corrupt
Shields' next objection focuses upon Paragraph 8D of Bowen's affidavit. In relevant part, that paragraph states:
On August 16, 1988, the CW engaged in a consensually monitored conversation with DeLeo at which time DeLeo clearly stated, after being told that the case was assigned to Judge David J. Shields, that he could assist in fixing the case. DeLeo indicated that "the judge will do whatever you want, all he is worried about is getting the money."
In response, the government terms this objection as "the case of the out-of-place quotation mark." (Gov. Mem. at 38.) The government concedes that DeLeo did not use the word "money" when he was describing to Cooley what it was that Shields purportedly cared about. (See id. at 40.) Indeed, as the transcript of the conversation referred to in this paragraph reflects, and as the Court's own review of the tape recording of the conversation confirms, what DeLeo and Cooley appear to have said to one another is as follows:
DELEO: Okay lets do this. I'll tell you the best way with Dave, okay? What's the first step? The first step is to get the injunction right?
COOLEY: Well we want, I wanna make sure though, I wanna make sure Pat if I do something. In other words I don't wanna do something before this guy and get started and you can't move the case. I think, I think anytime.
DELEO: No, he'll do whatever we want. all he's wan . . . worried about is this. That's what I'm saying and you know and you, you know how, what to do.
(Transcript at 3-4, Tape No. 163, Aug. 16, 1988) (Emphasis supplied.) Bowen was plainly aware that DeLeo had not used the word "money" in this exchange, for in the Form 302 summary he prepared regarding this conversation, he wrote:
DELEO told SMITH
[COOLEY] that "The judge will do whatever you want, all he is worried about is getting the money." SMITH stated that DELEO did not utter the word "money" but instead indicated the judge's concern about the money by making the hand motion of rubbing his fingers together.
(Bowen 302, dictated Aug. 18, 1988, Transcribed Aug. 25, 1988.) However, the government argues that the inaccuracy is limited to one word ("money"), a word which accurately reflects the tenor of what DeLeo actually said ("this") and did (rubbed his fingers together). Shields offers no alternate construction of DeLeo's statement and gesture, the government observes;
moreover, in its own view, the notion that DeLeo was talking about money is confirmed by the remainder of the conversation:
DELEO: Tell me what the first step is to get the injunction. That'll lock up the money.
COOLEY: That's the first thing you wanna do right?
DELEO: (IA). I'll approach him and ask him, Judge here I got this case you know, we're getting into it. It's very important ah, here's what I wanna do. The first thing I wanna do is lock up the money by getting an injunction.
COOLEY: Once we do that we're, I think we're basically home free.
DELEO: And then right then and there I'll take care of him on that.
DELEO: Yeah what is, the first step is to get the injunction. You want me to talk to him first.
COOLEY: Yeah definitely. I, I wanna make sure.
DELEO: No he won't play games.
COOLEY: Because the moment we do it this guy will glam with the money.
DELEO: You just tell me what you want to do with it.
COOLEY: Well the main thing is to get an injunction
DELEO: Just got to motion it up.
COOLEY: We motion it up? Well let me see whats what then and ah, ah I'll give you a call and . . . alright.
DELEO: But all you got to do is tell me what you want me to give him
COOLEY: Alright you tell me whats fair.
DELEO: I know. You know all I want to do, all I want to do is lock him up.
COOLEY: Theres big bucks involved in it.
DELEO: You tell me what you want to do.
COOLEY: Theres big bucks involved.
DELEO: You tell me what you wanna do.
COOLEY: Well you tell me whatever is fair to start.
DELEO: I don't care. It don't make any difference.
COOLEY: Alright give me a normal number.
COOLEY: I've never done anything before in the civil area.
COOLEY: So numbers I, I don't care what the numbers are. You know if it's worthwhile.
COOLEY: If I, if I can walk in and look at the star.
DELEO: He'll do it, he'll do it like this.
DELEO: Okay. He'll do anything. You tell me what you want ...