United States v. Dorfman

• Decision Date: 01 June 1982
• Docket Number: No. 81 CR 269.,81 CR 269.
• Parties: UNITED STATES of America, Plaintiff, v. Allen M. DORFMAN, Roy M. Williams, Joseph Lombardo, Thomas F. O'Malley, and Andrew G. Massa, also known as Amos Massa, Defendants.
• Court: U.S. District Court — Northern District of Illinois

542 F. Supp. 345

UNITED STATES of America, Plaintiff, v. Allen M. DORFMAN, Roy M. Williams, Joseph Lombardo, Thomas F. O'Malley, and Andrew G. Massa, also known as Amos Massa, Defendants.

No. 81 CR 269.

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

June 1, 1982.

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Dan K. Webb, U. S. Atty., Douglas P. Roller, Gary S. Shapiro, Mark J. Vogel, Sp. Attys., Chicago Strike Force, Chicago, Ill., for plaintiff.

Albert E. Jenner, Jr., John C. Tucker, Michael J. Rovell, Robert T. Markowski, Linda L. Listrom, Jenner & Block, Chicago, Ill., for defendant Dorfman.

Thomas A. Wadden, William Krebs, Wadden, Scherr, Krebs & Gitner, P. C., Washington, D. C., for defendant Williams.

Harry J. Busch, Sherman Magidson, Chicago, Ill., for defendant Lombardo.

William Hundley, Lawrence Gondelman, Hundley & Cacheris, P. C., Washington, D. C., for defendant O'Malley.

George J. Cotsirilos, Robert M. Stephenson, Cotsirilos & Crowley, Chicago, Ill., for defendant Massa.

MEMORANDUM OPINION

MARSHALL, District Judge.

Defendants are charged in an eleven count indictment with conspiracy to bribe a United States Senator in violation of 18 U.S.C. §§ 201(b)(1) and 371 (1976), travel in interstate commerce with intent to commit bribery in violation of 18 U.S.C. § 1952 (1976), and nine separate counts of wire fraud stemming from an alleged scheme to defraud the Central States, Southeast and Southwest Areas Pension Fund ("Fund") of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America ("Teamsters") of the loyal services of two of the defendants, and attempting to obtain money and property by means of false pretenses in violation of 18 U.S.C. § 1343 (1976). On December 9, 1981 we denied defendants' motions to dismiss the indictment. See United States v. Dorfman, 532 F.Supp. 1118 (N.D.Ill.1981). That opinion describes in detail the nature and scope of the charges against the defendants and we will not repeat the description here except where particular facts are relevant.

Pending before the court are defendants' motions to suppress evidence obtained by the government through electronic surveillance. The surveillance, which extended over 14 months and produced more than 2000 reels of recordings, is the most pervasive of which we are aware. The motions are quite general but the briefs in support of them raise a plethora of statutory and constitutional contentions. All defendants have joined in the motions but they have filed separate briefs and supporting materials and occasionally press arguments relevant to only a single defendant. In general our decision on any given issue encompasses the arguments raised by all defendants; however, where necessary, we treat with particularity an argument raised by a single defendant or a discrete group of defendants.

The written materials submitted to the court by the defendants and the government consist of over 950 pages of briefs and over a thousand pages of supporting documents. In addition, 14 days of testimony was heard on certain issues.

While we have considered each brief and all the supporting material submitted by the parties, it would be both unnecessary and unworkable to respond to every question of fact and law joined by counsel. Our discussion will be restricted to those factual and legal issues necessary to resolve the questions set forth below. At the time of the evidentiary hearing we advised the parties that, on those issues, the only evidence upon which we would rely was the evidence offered and received at the hearing and not unproved allegations made by way of briefs or appendices.¹ We adhere to that position in rendering this decision.

I

The arguments pressed by defendants in support of their motions to suppress break down into three categories: the sufficiency of the applications to and orders of the court authorizing the electronic surveillance at Amalgamated Insurance Agency Services, Inc. ("Amalgamated") under the probable cause standard of the fourth amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1976 & Supp.II 1978) ("Title III"); the good faith of the government in the representations made to the authorizing judge for purposes of securing the original warrant and extensions;² and the government's compliance during the course of the electronic surveillance with the requirements of Title III.

Defendants attack the original application and order of January 29, 1979, as well as extension applications and orders issued on March 1, March 30, April 7 and April 28. The law with respect to the issue of probable cause, the allegations of government misconduct and compliance with Title III is of course the same for each time period. However, defendants' attack is predicated upon facts often peculiar to particular applications or orders. Thus, while we set forth a general discussion of the law below, we treat separately the issue of probable cause and the challenge to the government's good faith as to each application and order.

II

In late 1978, the United States Department of Justice and the Federal Bureau of Investigation ("the government") initiated an investigation of Allen Dorfman ("Dorfman") under the code name "Pendorf."³ As part of the investigation, the government applied to Chief Judge James B. Parsons of this court for authority, under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-20 (1976 & Supp.II 1978), to place a wiretap on the telephones at Amalgamated, which was Dorfman's place of business. The application was made and granted on January 29, 1979. Under the wiretap order issued by Chief Judge Parsons, the government was required to return to the court every thirty days in order to obtain authority to extend the tap.⁴

Defendants challenge the validity of the original January 29 order, as well as the extensions granted by Chief Judge Parsons on March 1 and 30, 1979. Defendants also attack the validity of an April 7, 1979 order which allowed the tap to be expanded to an additional telephone line at Amalgamated, and which authorized the placement of electronic listening devices in the offices of Dorfman and William Webbe, another employee of Amalgamated. Defendants do not specifically challenge the court orders which authorized electronic surveillance of Amalgamated after April 7, but do seek suppression of the results of the subsequent surveillance as fruits of a poisonous tree, see generally Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); 18 U.S.C. § 2515 (1976).

Defendants' basic attack on the surveillance orders is on two fronts. First, they claim that the applications for the orders which are the equivalent of warrants, were facially insufficient, in that the affidavits submitted to the court did not recite facts sufficient to create probable cause to authorize electronic surveillance. Second, they claim that the affidavits and applications contain intentional and/or reckless material misrepresentations of fact which void the warrants and require that the evidence obtained through the surveillance be suppressed under the rule of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).⁵ Before addressing the particular contentions advanced by defendants, we review the principles which underlie them.

A

It is now beyond question that the overhearing of conversations by means of electronic surveillance invades the expectations of privacy protected by the fourth amendment, and constitutes a "seizure" within the meaning of the amendment. See Katz v. United States, 389 U.S. 347, 351-53, 88 S.Ct. 507, 511-12, 19 L.Ed.2d 576 (1967). The fourth amendment requires that surveillance be authorized by a warrant issued by a neutral judicial officer. See id. at 354-59, 88 S.Ct. at 512-15; Berger v. New York, 388 U.S. 41, 54-55, 87 S.Ct. 1873, 1881-82, 18 L.Ed.2d 1040 (1967). This is because the Constitution demands that the difficult decision whether to invade the privacy interests protected by the fourth amendment should be made "by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Consequently, interception of oral or telephonic communications by means of electronic surveillance which has not been authorized by a valid warrant must be suppressed under both Title III and the Constitution. See 18 U.S.C. § 2518(10) (Supp.II 1978); Alderman v. United States, 394 U.S. 165, 171, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969).⁶

The text of the fourth amendment requires that warrants issue only upon "probable cause."⁷ In order to determine whether the orders issued in this case were based on probable cause, we must review the applications and affidavits and determine whether they reveal facts and circumstances within the affiant's personal knowledge, or of which he had reasonably trustworthy information, sufficient to warrant a man of reasonable caution to believe that criminal activity was afoot. Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967); McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 1058-59, 18 L.Ed.2d 62 (1967); Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). Probable cause is only a reasonable probability of criminal activity; it does not require certainty or even a prima facie showing of criminal activity. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969)...