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United States v. Spann

United States District Court, N.D. Illinois, Eastern Division

September 5, 2019

United States of America,
v.
Labar Spann; Sammie Booker; Tremayne Thompson; Juhwun Foster; Marchello Devine; Rontrell Turnipseed; Keith Chatman; Stevon Sims; DeAndre Spann; Mikal Jones; Antonio Devine.

          MEMORANDUM OPINION AND ORDER

          Honorable Thomas M. Durkin United States District Judge.

         Defendants have been indicted on criminal RICO and other related charges. Some of the evidence against them consists of telephone communications intercepted and recorded (wiretaps) by the Chicago Police pursuant to a state court order. Defendants have moved to suppress certain wiretap recordings as obtained in violation of the statutory requirement that the “principal prosecuting attorney” be the applicant for the wiretap. R. 252; R. 264; R. 293. The Court orally denied that motion during a status hearing on August 12, 2019. R. 517. This opinion and order explains the Court's decision.

         Background

         Title III-the federal statute governing authorization of wiretaps-provides in relevant part that:

The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge [for a wiretap].

18 U.S.C. § 2516(2). It is undisputed that Anita Alvarez, who was the State's Attorney for Cook County at the relevant time, was the relevant “principal prosecuting attorney.” It is also undisputed that Alvarez did not sign the five wiretap applications at issue here, but that the applications were signed by Shauna Boliker, who was the First Assistant State's Attorney at the time. The applications' signature lines indicated that Boliker was signing on Alvarez's behalf.

         In opposition to the motion to suppress, the government submitted affidavits from Alvarez and Boliker. Neither of them specifically remembered the applications at issue, but they stated that they had a regular practice for considering and approving wiretap applications. The practice consisted of Boliker briefing Alvarez (in person or over the phone) about the facts underlying the application. Alvarez generally did not review the materials supporting the application. Alvarez frequently delegated authority for signing the application and appearing before the state court judge to Boliker. This delegation was always oral, never in writing. Defendants requested an evidentiary hearing to test the assertions Alvarez and Boliker made in their affidavits.

         The Court held a hearing on June 19, 2019, so that Defendants could cross-examine Alvarez and Boliker. Their testimony was in accord with their affidavit statements. See R. 453 at 15 (15:2-5); 15 (15:22-25); 18-19 (18:23-19:7); 25 (25:7-12); 50 (50:7-15); 54 (54:1-4); 55-56 (55:18-56:4).

         Analysis

         I. Unlawful Intercept

         “In a federal criminal prosecution, federal standards [as opposed to state law] govern the admissibility of evidence.” United States v. D'Antoni, 874 F.2d 1214, 1218 (7th Cir. 1989). Title III provides the grounds for suppressing wiretap recordings:

(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is ...

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