652 F.Supp. 20 (E.D.Mo. 1985), 83-242 CR 5, United States v. Webbe
|Docket Nº:||83-242 CR 5|
|Citation:||652 F.Supp. 20|
|Party Name:||United States v. Webbe|
|Case Date:||October 28, 1985|
|Court:||United States District Courts, 8th Circuit, Eastern District of Missouri|
Memorandum Opinion March 21, 1986.
Robert Ritchie, Knoxville, Tenn., for plaintiff.
Burton Shostak, St. Louis, Mo., for defendants.
LIMBAUGH, District Judge.
Trial in this case began October 21, 1985, but before the voir dire began, a variety of motions were filed by defendants largely for the reason that Brady and Jencks Act material just furnished by the government prompted the filings. An evidentiary hearing on the motions began and was interrupted so that jury selection could commence. A jury was selected by 2:00 p.m. on October 24, 1985, and was impaneled but not sworn. The jury was ordered to report back for trial October 28, 1985. The remainder of October 24th and October 25th were spent completing the evidentiary hearing on the motions. All parties have briefed their positions on the motions and before the jury is sworn this order is entered.
The Court finds that the Jencks Act material furnished to defendants does not change the original findings of the Magistrate and former rulings of the Court as to the admissibility of electronic surveillance evidence. Findings of fact and conclusions of law will be set out in a separate memorandum.
IT IS THEREFORE ORDERED that all motions to suppress electronic surveillance evidence and intercepted communications and derivative evidence, to suppress statements assertedly protected by the attorney-client privilege, to dismiss for pre-indictment delay and for government misconduct are DENIED and that request for an evidentiary hearing under Franks v. Delaware is DENIED;
IT IS FURTHER ORDERED that the statements obtained by electronic surveillance numbered Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 8a, 12, 13, 14, 15, 16, 17, 18, 19, 22, 25, 26, 27, 29, 34, 35, 36, 41, 43, 45, 47, 51, 53, 54 and 55 shall be received in evidence and the United States allowed to present same to the jury by tape recorder and ear phone device. Rulings on the use of written statements of the evidence shall be made at the time of the presentation of such evidence. Rulings on the additions to Exhibits 16, 17 and 19 offered by defendants under the rules of completeness shall be made in a separate order.
On October 28, 1985, the Court denied renewed motions of all defendants to suppress electronic surveillance evidence and intercepted communications and derivative evidence, stating that findings of fact and conclusions of law would be set out in separate memorandum. This memorandum opinion constitutes those findings of fact and conclusions of law supporting such order.
During the discovery process, defendants Sorkis Webbe, Jr. and Pat Gandy moved to suppress electronic surveillance evidence and that, and other motions were referred to United States Magistrate David D. Noce for a hearing and recommendation. On September 24, 1985, Magistrate Noce filed a report and recommendation to which was attached memorandum considering the motions to suppress electronic surveillance evidence, for an evidentiary hearing under Franks v. Delaware and for leave to file an additional memorandum regarding an unincorporated affidavit and other issues. The motions, as filed, were adopted by all defendants. The memorandum of the United States Magistrate addressed all of the issues raised by the defendants in substantial detail and the order of the United States Magistrate denying the relief requested in the motions was adopted by this Court.
Trial of this case began October 21, 1985. On October 17, 1985, the United States Attorney sent a letter to the Court and to the attorneys of record advising the parties that one Hamilton Lemmer would testify for the government. The letter suggested that pursuant to court order of October 15, 1982, the Federal Bureau of Investigation (F.B.I.) initiated electronic surveillance in the offices of defendants Sorkis Webbe, Sr., and Sorkis Webbe, Jr., at the Mayfair Hotel, in the City of St. Louis. Shortly before the court order was entered, Hamilton Lemmer, at the direction of the F.B.I., retrieved keys from the purse and desk of one Cheryl Knapp at such hotel and made impressions of said keys. The impressions were then turned over to the F.B.I. and F.B.I. agents made copies of the keys and used those keys after the court order was obtained to gain entry to the Webbe office area for purposes of installing the surveillance equipment. The foregoing information was given to counsel four days before trial, as it might be considered Brady or Jencks Act material.
During the discovery period, and before trial, defendant Sorkis Webbe, Sr. died, an apparent victim of cancer.
Shortly before the voir dire began, defendants filed a variety of motions which were prompted by the material furnished in the letter of October 17, 1985. The principal motion was a renewal of the original motion of the defendants to suppress intercepted communication and derivative evidence. An evidentiary hearing on the motions began, and was interrupted so that jury selection could commence. A jury was selected by 2:00 p.m. on October 24, 1985, and was impaneled, but not sworn. The jury was ordered to report back for trial on October 28, 1985. The remainder of October
24th and all of October 25th were spent completing the evidentiary hearing on the renewed motion to suppress. On October 28, 1985, before the jury was sworn, the Court entered its order denying the renewed motion to suppress.
The only new evidence presented on the renewed motion to suppress was that presented to the Court before the jury was sworn, all other evidence having been presented to the United States Magistrate at the time of the original hearing. This new evidence consisted of the live testimony of Hamilton Lemmer, a paid government informer, Cheryl Knapp, the Director of Sales of the Mayfair Hotel and personal secretary of defendant Sorkis Webbe, Jr., defendant Sorkis Webbe, Jr. and several exhibits. As stated in the thorough and exhaustive memorandum of the United States Magistrate of September 24, 1985, the original motion was to suppress the recorded conversations which resulted from electronic surveillance of oral communications in the Mayfair Hotel offices of Sorkis...
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