United States v. Spann

• Decision Date: 05 September 2019
• Docket Number: No. 17 CR 611,17 CR 611
• Citation: 409 F.Supp.3d 619
• Parties: 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.
• Court: U.S. District Court — Northern District of Illinois

409 F.Supp.3d 619

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.

No. 17 CR 611

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

Signed September 5, 2019

AUSA, Peter S. Salib, Timothy Joseph Storino, William Dunne, U.S. Attorney's Office, Chicago, IL, for United States of America.

Steven Shobat, Law Offices of Steven Shobat, Matthew John McQuaid, Chicago, IL, for Labar Spann.

William Sean Stanton, Chicago, IL, for Sammie Booker.

Robert A. Loeb, Law Office of Robert A. Loeb, Andrea Elizabeth Gambino, Law Offices of Andrea E. Gambino, John M. Beal, Chicago, IL, for Tremayne Thompson.

Ellen R. Domph, Law Offices of Ellen R. Domph, Damon Matthew Cheronis, Ryan J. Levitt, Law Offices of Damon M. Cheronis, Chicago, IL, for Juhwun Foster.

Lawrence W. Levine, Chicago, IL, for Marchello Devine.

Michael P. Schmiege, Law Offices of Michael P. Schmiege, P.C., Hinsdale, IL, Robert A. Loeb, Law Office of Robert A. Loeb, Chicago, IL, for Rontrell Turnipseed.

Joshua B. Adams, Law Offices of Joshua B. Adams, PC, Patrick Eamon Boyle, Law Offices of Patrick E. Boyle, Alana Maria De Leon, Law Office of Alana M. De Leon, Chicago, IL, for Keith Chatman.

Joseph R. Lopez, Lopez & Lopez, Ltd., Adam Michael Altman, Adam M. Altman, Ltd., Chicago, IL, for Stevon Sims.

Gal Pissetzky, Adam Edward Bolotin, Pissetzky & Berliner, LLC, Chicago, IL, for Deandre Spann.

Brittany Bene't Kimble, The Law Offices of Brittany B. Kimble, Maywood, IL, for Mikal Jones.

Jeffrey Jay Levine, Jeffrey J. Levine, P.C., Heather L. Winslow, Attorney at Law, Chicago, IL, for 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 insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

18 U.S.C. § 2518(10)(a). Relying on the first ground, Defendants argue the wiretaps at issue were "unlawfully intercepted" because the applications were not signed by Alvarez, the "principal prosecuting attorney" of Cook County, as is required by 18 U.S.C. § 2516(2), cited above.

The term "unlawful" is not defined in the statute. Of course, wiretaps that violate the Constitution are unlawful. See United States v. Giordano , 416 U.S. 505, 527, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Here, Defendants do not allege a constitutional violation, but violation of § 2516(2). However, "not every failure to comply fully with any requirement provided in Title III ... render[s] [a wiretap] ‘unlawful.’ " United States v. Donovan , 429 U.S. 413, 433, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977).

The Supreme Court has held that by using the word "unlawful," "Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." Giordano , 416 U.S. at 527, 94 S.Ct. 1820. The Supreme Court also expressed its "confiden[ce] that the provision for pre-application approval [i.e., § 2516 ] was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored." Id. at 528, 94 S.Ct. 1820.

Nevertheless, courts have held that not all "authorization problems arising under § 2516" rise to the "unlawful" level. U.S. ex rel. Machi v. U.S. Dep't of Prob. & Parole , 536 F.2d 179, 183-84 (7th Cir. 1976). Rather, because Congress's intent was to create "assurance of a responsible executive determination of the need and justifiability of each [wiretap]," id. at 517, 94 S.Ct. 1820, the Seventh Circuit and Supreme Court have reversed district court decisions suppressing wiretap recordings when the government has demonstrated that the person statutorily authorized to approve a wiretap "actually approved" it through "personal participation." Machi , 536 F.2d at 184 ; see also United States v. Chavez , 416 U.S. 562, 579, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974) ("When it is clearly established, therefore, that authorization of submission of a wiretap or electronic surveillance application has been given by the Attorney General himself, but the application, and, as a result, the interception order, incorrectly state that approval has instead been given by a specially designated Assistant Attorney General, the misidentification, by itself, will not render interceptions conducted under the order ‘unlawful’ within the meaning of § 2518(10)(a)(i) [.]").¹

Here, there is sufficient evidence that Alvarez "personally participated" in the application process and "actually authorized" every wiretap application made on her behalf during her tenure. The fact that she did not sign the applications, and instead delegated signing authority and the responsibility of appearing before the judge to Boliker, does not change the fact that Alvarez personally approved every wiretap application. Her personal approval and authorization of every wiretap application substantially satisfied Congress's concern that there be "responsible executive determination of the need" for exercise of the authority granted under Title III. Satisfaction of this congressional concern means that the wiretaps were "lawful" under §§ 2516 and 2518, and suppression of the recordings is not warranted. The Court notes, however, that more than 40 years ago in a similar case, the Supreme Court admonished the United States Department of Justice that "strict adherence ... to the provisions of Title III would ... be more in keeping with the responsibilities Congress has imposed." Chavez , 416 U.S. at 580, 94 S.Ct. 1849. The State's Attorney's Office would do well to heed this advice in its wiretap application procedure.²

II. Good Faith

Even if the wiretaps at issue here were unlawful—which the Court has held they are not—suppression would not be warranted because the applications were made in good faith. In United States v. Leon , the Supreme Court held that "[w]hen police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’ [also known as ‘good faith’] on the subsequently invalidated search warrant." Herring v. United States , 555 U.S. 135, 142, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (quoting Leon , 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ). Here, Defendants do not contend that probable cause was lacking. Instead, they appear to rely on Leon's holding that suppression "remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth." 468 U.S. at 923, ...