Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 90 CR 87--Ann Claire Williams, Judge.
Before POSNER, Chief Judge, and CUDAHY and COFFEY, Circuit Judges.
The Chicago Outfit (the "Outfit," the "Mob," the "Mafia")--the criminal enterprise whose most notorious boss was Al Capone--operates through "street crews." The twenty defendants in this mainly RICO case that charges predicate acts of extortion, bribery, murder, and other offenses were members of the Ferriola Street Crew, named after its boss from 1979 to his death in 1989, Joseph Ferriola. Ferriola was succeeded by defendant Infelise. The Ferriola Street Crew engaged in the usual "Mob" activities, in particular the protection racket (the collection of "street tax" from brothels, gambling enterprises, and other illegal businesses), loan sharking, and bookmaking, with bribery of police, judges, prosecutors, and other public officials, subornation of jurors, and the occasional murder thrown in to protect and enforce its reign of terror. The focus of the prosecution was on the street crew's efforts to collect street tax from "independent" bookmakers, which is to say bookmakers not affiliated with the "Mob," in the suburbs north of Chicago, primarily during the 1980s. These efforts included the murder of a bookmaker named Hal Smith. The evidence of the defendants' participation in these activities was overwhelming, except that the evidence of their participation in the murder depended critically on the testimony of a turncoat member of the street crew, William Jahoda. Smith had angrily refused a demand relayed to him from defendant DeLaurentis to pay street tax, saying "fuck the little guinea." Infelise directed Jahoda to lure Smith to Jahoda's home, which he did, arriving in Smith's car. Jahoda told Smith to enter the house through the garage, while Jahoda pretended to pick up his mail. Shortly afterward, through the open door to the kitchen, Jahoda saw Smith lying dazed but conscious on the kitchen floor. Infelise drove Jahoda back to the tavern where he had met Smith and told him to burn his clothes. When Jahoda returned home later that night, he found that the kitchen floor had recently been mopped up. Infelise called and told him to look for Smith's cigar and glasses, which the murderers thought they might have left there. Jahoda did not find the items. Smith's body was found a few days later in the trunk of his car. He had been tortured and then strangled.
The defendants were tried together and found guilty of most of the counts of the indictment and received long prison sentences which in the case of some of the defendants, given their age, are the equivalent of life in prison. Their appeals, which we have consolidated, present sixteen separate grounds. We shall confine our discussion to those that have arguable merit, disregarding such frivolous ones as that the judge could not sentence the defendants to terms of years that were (because of the defendants' age) the practical equivalent of life in prison without a jury recommendation, as required by 18 U.S.C. sec. 34 as it read when they were sentenced. Section 34 applies only to convictions for crimes punished by the chapter of the federal criminal code in which the section appears (mainly arson resulting in the destruction of aircraft or motor vehicles), and none of the defendants was convicted of any such crimes. It didn't help, though, that in response the government, overlooking United States v. Prevatte, 66 F.3d 840, 843-44 (7th Cir. 1995), argued that a term of years, however long, and however old the defendants are, is not within the scope of section 34. We held the contrary in Prevatte and in United States v. Martin, 63 F.3d 1422, 1432-34 (7th Cir. 1995).
The most dramatic issue and the one pressed hardest by the defendants arises from the bugging of a room in the Metropolitan Correctional Center, the federal jail in Chicago. The room had been set aside for the use of the defendants, who were being detained in the jail awaiting trial, in meeting with their lawyers. Someone made a tape recording of a conversation between one of the defendants and his lawyer and sent the tape to the lawyer. The defendants argue that the district judge should have conducted an evidentiary hearing to determine the extent of the bugging and whether it had given the prosecution information about defense strategy that the prosecution had used to undermine the defense at trial.
The lawyer gave the tape to the government, which began an investigation to determine who had bugged the room. The FBI interviewed almost 150 people, including the defendants, their lawyers, the prosecutors, and employees of the jail. The report of the investigation, which was submitted in camera to the district judge (and which we have read as well), indicated that the investigation had been totally inconclusive. Although visitors to the MCC are supposed to be screened for tape recorders, security was lax during 1991, when the bugging incident occurred, as we know from the El Rukns cases. See, e.g., United States v. Boyd, 55 F.3d 239 (7th Cir. 1995). A tape recorder may have been smuggled in to one of the defendants by a visitor, or even carried in by one of the defendants' lawyers. A guard at the MCC might have been in the pay of the defendants (there was evidence at trial that at least one federal officer was in the pay of the Ferriola Street Crew) and made the tape in an effort to embarrass the prosecution. Or, as the defendants conjecture, the prosecution itself may have bugged the meeting room to find out what discreditable information the defendants knew about Jahoda, a key prosecution witness. Of course the prosecution would not have sent the tape of its illegal bugging to the lawyer for one of the defendants, but maybe an MCC guard sympathetic to the "Mob" found the tape and mailed it to the lawyer.
The government argues that the defendants did not lay a foundation for an evidentiary hearing on the matter because they presented no evidence that the bugging altered the result at trial--no evidence that the prosecution was privy to the bugging or, if it was, used the information gleaned from it to undermine the defense or if it did caused innocent people to be convicted of heinous crimes. We do not consider this a sound argument. It pushes the notion of harmless or nonprejudicial error too far. The principle that an acquittal or a new trial is not a proper remedy for governmental misconduct, that the defendant must show that the misconduct may have caused the jury to convict him, is sound but like most legal principles cannot be maintained without qualification. Otherwise the prosecution could send a defendant to prison without any judicial process whatsoever and if he complained defend by showing that had the defendant been tried with assistance of counsel and all the other trimmings of modern criminal procedure he would surely have been convicted and sentenced to a term of years at least as long as the prosecution proposes to hold him. The counterprinciple that defeats this result is that denial of the right to counsel (not the right to competent counsel, but the more basic right to some counsel) or of any other fundamental rights of criminal defendants (such as the right to an impartial judge or to trial by jury) is reversible error even if not shown to be prejudicial--even if shown to be completely harmless. E.g., Satterwhite v. Texas, 486 U.S. 249, 256 (1988); United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977); Tumey v. Ohio, 273 U.S. 510, 535 (1927).
We put to the government at oral argument the following example. The government adopts and announces a policy of taping all conversations between criminal defendants and their lawyers. It does not turn the tapes over to the prosecutors. It merely stores them in the National Archives. The government's lawyer took the position that none of the defendants could complain about such conduct because none could be harmed by it, provided the prosecutors never got their hands on the tapes. We are inclined to disagree, although for a reason that will become apparent shortly we need not attempt to resolve the issue definitively. The hypothetical practice that we have described would, because of its pervasiveness and publicity, greatly undermine the freedom of communication between defendants and their lawyers and with it the efficacy of the right to counsel, because knowledge that a permanent record was being made of the conversations between the defendants and their lawyers would make the defendants reluctant to make candid disclosures. (Totalitarian-style continuous surveillance must surely be a great inhibitor of communication.) And yet it would be impossible in any given case to show that the outcome had been changed by the practice. Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995); United States v. Perry, 857 F.2d 1346, 1349-50 (9th Cir. 1988). At the other extreme are cases of ad hoc governmental intrusion into the relation between a criminal defendant and his lawyer, falling far short of continuous surveillance. In such cases harm to the defense must be shown because the bare fact of the intrusion does not create a high probability that communication between lawyer and client or between client and lawyer was disrupted. United States v. Morrison, 449 U.S. 361 (1981); Weatherford v. Bursey, 429 U.S. 545, 554 n. 4, 558 (1977); United States v. Castor, 937 F.2d 293, 297-98 (7th Cir. 1991); Clark v. Wood, 823 F.2d 1241, 1249-50 (8th Cir. 1987); Sinclair v. Schriber, 916 F.2d 1109, 1113 (6th Cir. 1990).
Our case may seem closer to the first pole than to the second. The bugging was discovered before the trial and from then on the defendants and their lawyers must have wondered whether their conversations were being overheard, even though the district judge promptly authorized the defendants to meet with counsel outside of the jail; and conceivably this fear might have prevented effective communication between client and lawyer, emptying the right to the assistance of counsel of much of its meaning. Cf. United States v. Cronic, 466 U.S. 648, 659-60 (1984); United States v. Berkowitz, 927 F.2d 1376, 1381 (7th Cir. 1991). "Free two way communication between client and attorney is essential if the professional assistance guaranteed by the sixth amendment is to be meaningful." United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978); see also Geders v. United States, 425 U.S. 80, 91 (1976). The defendants do not argue, however, that the effect of the natural anxiety of themselves and their lawyers concerning the confidentiality of their conversations was sufficient to warrant a new trial or perhaps--since it is not obvious how a new trial would dissipate the anxiety--even the dismissal of the indictments with prejudice. Such an argument would be unlikely to succeed when so far as appears the bugging incident was completely isolated (and isolated intrusions into the attorney-client relation are, as we have seen, not reversible error per se) and the bug may have been planted by one of the defendants. In any event the argument is not made. All the defendants argue for is an evidentiary hearing to get to the bottom of the matter. In light of the report of the FBI investigation it is unlikely that such a hearing would get us nearer to the heart of the mystery. But the defendants are understandably reluctant to defer to a report they have not seen compiled by an agency that they suspect or at least affect to suspect of being responsible for the very crime that it was investigating.
The defendants' request is a reasonable one but it comes too late. The district judge offered them an evidentiary hearing, directed the government to furnish them with a list of all the employees of the MCC who had had access to the meeting room, and gave the defendants' lawyers subpoena power to compel the presence of witnessses at the hearing. The hearing was scheduled for September 23, 1991, a week before the scheduled opening of the trial. Shortly before the hearing was to take place, the defendants requested more time to complete their investigation. The hearing was repeatedly postponed at the defendants' request. During the delay the government submitted affidavits from all the members of the prosecution team, attesting their lack of complicity in the bugging. Finally on July 16, 1992, almost ten months after the original date set for the hearing and four months after the jury had returned its verdict, the defendants moved for an evidentiary hearing. After reviewing the FBI report, and noting that despite a lengthy investigation the defendants had come up with no evidence to suggest that the government was implicated in the bugging, the judge denied the motion. At no time during this entire period--which did not end until May 23, 1994, when the judge denied the defendants' last request for access to the FBI report--did the defendants submit the tape to the judge.
In these circumstances we cannot say that the judge abused her discretion in declining to order an evidentiary hearing. A critical consideration is the government's affidavits. Although evidentiary hearings in criminal cases are not governed by the Federal Rules of Civil Procedure, the provisions of those rules relating to summary judgment are applicable by analogy. United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985); cf. United States v. Randle, 966 F.2d 1209, 1212 (7th Cir. 1992); Castillo v. United States, 34 F.3d 443, 445-46 (7th Cir. 1994). In opposing the evidentiary hearing sought by the defendants the government was in a position analogous to that of a movant for summary judgment who argues that no genuine issue of material fact exists and therefore that summary judgment should be granted. A fundamental principle of summary judgment that we think ought to be applied in cases such as this in which the issue is whether to hold an evidentiary hearing is that if the proponent supports his motion with affidavits, the opponent must counter the motion with his own affidavits (or equivalent materials, which is to say materials having the quality of evidence). By submitting affidavits the government shifted to the defendants the burden of submitting counteraffidavits that would show there was an issue that only an evidentiary hearing could resolve. The defendants did not take up the burden although they had many months to do so.
Against this it can be argued, in accordance with our earlier discussion, that even if the prosecution team was not complicit in the bugging, the defendants' right to counsel may have been infringed. It is one federal government after all. If the director of the MCC ordered the bugging, there would be a serious issue of the infringement of that right even if the fruits of the bugging were not turned over to the prosecutors. And on that issue the affidavits did not bear at all. But throughout these proceedings, up to and including the appeal, the defendants have accepted that they must show, if not prejudice to their defense, if not likelihood of acquittal had the bugging not taken place, at least potential prejudice and for that they would have to show that the prosecution received, directly or indirectly, valuable information from the bugging. This the prosecution denied by affidavit--denied that it had received any information from the bugging--and the inability of the defendants, though granted ample time and resources, to come up with counteraffidavits dooms their challenge to the denial of an evidentiary hearing. Had the defendants not ...