United States v. Costello

• Decision Date: 10 June 1985
• Docket Number: No. 83 CR 978.,83 CR 978.
• Parties: UNITED STATES, Plaintiffs, v. James COSTELLO and Wayne Olson, Defendants.
• Court: U.S. District Court — Northern District of Illinois

610 F. Supp. 1450

UNITED STATES, Plaintiffs, v. James COSTELLO and Wayne Olson, Defendants.

No. 83 CR 978.

United States District Court, N.D. Illinois, W.D.

June 10, 1985.

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Dan Reidy, U.S. Attorney's Office, Chicago, Ill., for plaintiffs.

Sam Adam, Edward M. Genson, Jeffrey B. Steinback, Thomas A. Corfman, Chicago, Ill., for Olson.

Kenneth Cunniff, Chicago, Ill., for Costello.

ORDER

ROSZKOWSKI, District Judge.

Before the court are defendants, Wayne W. Olson's and James J. Costello's, joint motion to suppress the government's Title III surveillance, and defendant, James J. Costello's, motion for relief with respect to certain consensual recordings. As set forth in this court's August 31, 1984 order, the instant fifty-five count indictment charges the defendants with violations of the mail fraud statute, 18 U.S.C. § 1341 (1982), the Hobbs Act, 18 U.S.C. § 1951 (1982), and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d) (1982). For the reasons set forth herein, the defendants' motions are denied.

I. BACKGROUND

The instant indictment arose from a joint state and federal investigation of judicial corruption in the Chicago metropolitan area. On November 26, 1980, the United States Attorney applied for authorization to intercept the oral communications of Judge Wayne Olson, Attorney James J. Costello, another named attorney and "others as yet unknown" occurring in the judge's chambers at Branch 57 of the Circuit Court of Cook County, Illinois. The application sought to intercept communications concerning the solicitation and payment of bribes to influence the referral of, outcome of and eventual disposition of, criminal cases pending before Judge Olson.

The sole affidavit supplied in support of the application for the Title III surveillance was executed by Randall L. Jordan, a Special Agent with the Federal Bureau of Investigation. For the two and one-half years preceding the application, Jordan had been primarily assigned to the investigation of the judiciary in the Chicago metropolitan area (code named operation "Greylord"). The information provided in Jordan's affidavit was derived from three principal sources: (1) Jordan's general experience as an F.B.I. agent, (2) consensual recordings and observations provided by Terry Hake, an undercover agent posing as an Assistant Cook County State's Attorney assigned to Judge Olson's courtroom, and (3) information provided by a Confidential Source, an attorney who had practiced in the criminal courts of Cook County for many years.

On the same day the application was made, former Chief Judge James Parsons issued an order authorizing the surveillance for a period of thirty days. The surveillance commenced on December 1, 1980. On December 19, 1980, the government requested and was granted a thirty day extension. On January 20, 1981, the surveillance was discontinued.

Defendants jointly move to suppress the Title III surveillance contending: (1) the November 26, 1980 authorization was invalid because it was unsupported by probable cause; (2) the November 26, 1980 authorization was invalid because it was based upon false information which Agent Jordan knew was false, or, at the very least, presented with reckless disregard for its truth or falsity; (3) the November 26, 1980 authorization was invalid because the government failed to adequately explain the necessity for electronic surveillance; (4) the November 26, 1980 and December 19, 1980 authorizations were invalid because they were overly broad and the conduct of the surveillance was too intrusive; and (5) the December 19, 1980 application was invalid because it was based upon illegally obtained evidence and the intentional misrepresentation of a material fact. In addition, defendant, Costello, moves to quash the consensual recordings of his conversations with Terry Hake on the grounds that the scope and duration of those recordings violated the Fourth Amendment, and moves to bar Hake from testifying on the grounds that Hake's testimony would violate his attorney-client privilege.

On April 25 and 26, 1985, this court heard testimony concerning the adequacy of the measures taken by the government with respect to minimization. On April 29, 1985 the court heard oral arguments on the issues of minimization, the necessity for electronic surveillance and the need to hold a Franks hearing. No further briefing was deemed necessary.

II. DISCUSSION

A. Probable Cause for the November 26, 1980 Authorization

Even assuming the allegations set forth in Agent Jordan's original affidavit are true, defendants initially contend there was no probable cause for the November 26, 1980 authorization. Specifically, defendants contend Costello's consensually recorded remarks were mere "rainmaking", manifestly unreliable and not adequately corroborated by the remaining facts set forth in Jordan's affidavit. Moreover, defendants contend the information supplied by the government's Confidential Source was stale. Finally, the defendants contend the Confidential Source's reliability was not adequately demonstrated by Jordan's affidavit.

In examining an affidavit to determine whether or not the issuing court had probable cause to issue a warrant or authorize the interception of oral communications, this court does not make a de novo probable cause determination. See Massachusetts v. Upton, ___ U.S. ___, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984) (The making of a de novo determination "is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion on interests protected by the Fourth Amendment is less severe than otherwise may be the case."); see also United States v. Ramirez, 602 F.Supp. 783, 789 (S.D.N.Y.1985) (A Court "must give substantial deference to a prior judicial determination that probable cause existed ... and should resolve any doubts as to the existence of probable cause in favor of upholding the authorization.") Instead, the task of this court is to determine whether or not there was a "substantial basis" for Judge Parsons' finding of probable cause. Id. In testing the existence of probable cause, this court must examine the affidavit submitted in support of the government's application for electronic survelliance as a whole, in a realistic and non-technical manner. United States v. Dorfman, 542 F.Supp. 345, 360 (N.D.Ill. 1982) aff'd. sub nom. United States v. Williams, 737 F.2d 594 (7th Cir.1984).

Viewing Agent Jordan's affidavit in light of the considerations set forth above, this court finds that former Chief Judge Parsons had a more than adequate basis for determining that probable cause existed to initiate a Title III search. Jordan's lengthy affidavit devoted twenty-three pages to the facts and circumstances upon which probable cause was believed to exist. It is unnecessary to recite all of the facts set forth in Jordan's affidavit. A relatively brief overview, however, is instructive.

Jordan's affidavit begins by reciting the activities of James Costello, a criminal defense attorney regularly practicing in Judge Olson's courtroom. Costello unknowingly provided Terry Hake with a detailed description of corrupt activities in Judge Olson's Courtroom. Specifically, on at least sixteen occasions, Costello admitted to having bribed Judge Olson in return for case referrals and favorable dispositions of cases.¹ In addition, on numerous other occasions, Costello identified other attorneys who he indicated were also bribing Judge Olson.²

Jordan's affidavit also sets forth the observations of an undisclosed Confidential Source, an attorney practicing for many years in the Cook County criminal courts. (¶ 35) In October, 1975, the Confidential Source told the F.B.I. that on three separate occasions he had paid a total of $2,500 to Judge Olson's clerk in order to secure favorable dispositions on cases that he had pending before Judge Olson; on each occasion, the Confidential Source indicated Judge Olson did, in fact, render favorable treatment to his clients. (¶ 36) On May 21, 1980, the Confidential Source told Agent Jordan that other defense attorneys had informed him that Judge Olson was still accepting bribes in return for favorable treatment in Branch 57. (¶ 37) If a lawyer was not known to Judge Olson, the Confidential Source was told the lawyer could go to the Judge's clerk. On June 18, 1980, the Confidential Source advised Jordan that he had recently had a conversation with Judge Olson's former clerk, the one he had paid in 1975. (¶ 380 The Confidential Source asked Judge Olson's former clerk who an attorney should see about making a bribe in a case pending before Judge Olson. Judge Olson's former clerk allegedly told the Confidential Source to "see him first" because he was still very close to Judge Olson. Finally, on September 15, 1980, based upon information received from other defense lawyers, the Confidential Source informed Jordan that Judge Olson no longer had a regular "bagman" and was accepting bribes directly from defense lawyers. (¶ 39)

Apart from the information provided by Costello and the Confidential Source, the affidavit contains Hake's own direct observations. On June 3, 1980, Hake observed an attorney attempting to give money to Judge Olson's clerk; the clerk noticed that Hake had seen the offer and declined the money at that time. (¶ 43) Hake was also able to observe Costello entering and exiting Judge Olson's chambers, able to observe Judge Olson actually referring cases to Costello, and, on numerous occasions, was himself actually the recipient of Costello's bribes.³

In addition, Hake was able to observe the actions of numerous other attorneys, which, in light of the other facts known to him, were consistent with criminal behavior. For example, Hake was informed by two police...