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United States v. Warneke

November 12, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CARL J. WARNEKE, DAVID KADLEC, LESLIE J. JENSEN, ROBERT A. KRUPPSTADT, RANDALL E. MILLER, RICHARD E. MROCH, KEVIN P. O'NEILL, HARVEY E. POWERS, AND JAMES W. SCHNEIDER, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Eastern District of Wisconsin. No. 97-CR-98--J.P. Stadtmueller, Judge.

Before Easterbrook, Manion, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Easterbrook, Circuit Judge

As amended January 10, 2003. Petitions for rehearing denied.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CARL J. WARNEKE, DAVID KADLEC, LESLIE J. JENSEN, ROBERT A. KRUPPSTADT, RANDALL E. MILLER, RICHARD E. MROCH, KEVIN P. O'NEILL, HARVEY E. POWERS, AND JAMES W. SCHNEIDER, DEFENDANTS-APPELLANTS.

Appeals from the United States District Court for the Eastern District of Wisconsin. No. 97-CR-98--J.P. Stadtmueller, Judge.

Before Easterbrook, Manion, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Easterbrook, Circuit Judge

ARGUED OCTOBER 17, 2002

Warfare broke out between the Outlaws and Hell's Angels motorcycle gangs during the 1990s when the Angels began to establish a presence in the Midwest by absorbing the Hell's Henchmen, another motorcycle "club." The conflict seems to have been more about control of criminal activities (such as drug sales) than about divergent methods of motorcycle maintenance or incompatible bikes (both groups favor Harleys). The record in this criminal prosecution establishes that members of the Outlaws used murderous force to ward off the threat, and the Angels replied in kind. Outlaws preferred sneak attacks (using bombs) to open ones but were not averse to other weapons. The Outlaws acquired and used at least one AK-47 assault rifle, along with many other guns. An elderly couple with no connections to either group is among the dead, and three police officers were injured when a bomb exploded as it was being dismantled.

A grand jury charged that the Outlaws were a criminal "enterprise" that the nine defendants operated through a pattern of racketeering (including shootings, bombings, robbery, drug sales, and passing counterfeit money), violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68. James Schneider pleaded guilty and was sentenced to 45 years in prison. The other eight went to trial and were convicted. Five of the eight were sentenced to life imprisonment; the rest received long terms of years. The evidence against each of these eight is overwhelming, and we do not discuss individual challenges to its sufficiency. Nor does the defendants' complaint about trying seven of them together (a last-minute problem with counsel led the judge to give Harvey Powers a separate trial) require analysis beyond a citation to Zafiro v. United States, 506 U.S. 534 (1993), and the observation that the judge did not abuse his discretion.

Considerable evidence came from transmitters inside lamps in the homes of Outlaws Kevin O'Neill and David Wolf. A warrant authorized agents to hear and record the communications. Nonetheless, defendants contend, the evidence should have been suppressed because not only installation of the bugs but also a determination that one was functional preceded issuance of the warrant--and the judge was not told that these things had occurred.

The installation of the bugs did not violate the fourth amendment: the Constitution does not protect criminals against the risk that their associates will assist the police. See Hoffa v. United States, 385 U.S. 293, 300-03, 310-12 (1966). Placement of these microphones was the result of good police work plus luck. The informant was Patricia Wolf, David's wife, who set up two lamps, one containing a microphone. Visiting the Wolf home, O'Neill said that he liked the lamps. Patricia then swapped the inactive lamp for a second bugged lamp. When O'Neill repeated his admiration of the lamps and asked if he could have one, Patricia graciously assented. O'Neill took one of the lamps (it did not matter which) and thus bugged his own home. But he didn't plug it in, and without electricity it was useless. So Patricia Wolf paid O'Neill's girlfriend a friendly visit and helped her improve the lighting in O'Neill's office. Agents drove by O'Neill's residence to find out if this worked; they learned from detecting a carrier signal that it had. Whether this step created a constitutional problem under the holding of United States v. Karo, 468 U.S. 705 (1984), is not a question we need decide, because no evidence based on the monitored signal was used against O'Neill at trial. What was used was the ensuing conversations, and their interception was authorized by a warrant issued in response to an affidavit that did not mention the monitored signal (or for that matter the fact that the bug-infested lamp was in place already). Because the agents did not intercept (i.e., did not either record or listen to) any communications until after the warrant had issued, installation of the device at O'Neill's home (and determination that it was working) did not violate statutory limits on eavesdropping; until interception begins, a bug is nothing but a "tracking device" under 18 U.S.C. §3117(b). See also 18 U.S.C. §2510(12).

We may suppose (without deciding) that when seeking authorization to listen to conversations the agents should have told the judge that the lamps were already in place, but this does not matter. It is not conceivable that the judge would have said anything like: "Because you used an informant to install one microphone and tricked O'Neill into bugging his own home, I will deny you permission to listen even though you have established probable cause to believe that the bugs will reveal evidence of crime." Cf. Franks v. Delaware, 438 U.S. 154 (1978). Perhaps the judge would not have authorized clandestine entry had he realized that bugs already were in place. Prosecutors say that they sought authority to enter in case the lamps should be unplugged or not transmit signals strong enough to be recorded; the judge might have required prosecutors to show one of these problems before authorizing an entry. But in the event no entry was made. So there is no causal chain from the omission to any evidence used against the defendants, and no basis for suppression.

Defendants press several objections to their RICO convictions. One that affects all defendants is a contention that conspiracies may not be included among the predicate racketeering offenses. Defendants contend first that no inchoate offense can be "racketeering activity" as 18 U.S.C. §1961(1)(A) defines that term, and second that use of conspiracy as a predicate is particularly inappropriate when the federal crime is a RICO conspiracy violating §1962(d). (They also contend that there was one big underlying conspiracy, for at most one predicate offense, rather than multiple conspiracies with different criminal objects. This presented a jury question, resolved adversely to defendants at trial on the basis of ample evidence. We do not discuss this theme further.) Objections to the use of conspiracies as predicate crimes have been made in other circuits, uniformly without success. ...


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