US v. Webbe

• Decision Date: 21 March 1986
• Docket Number: No. 83-242 CR (5).,83-242 CR (5).
• Citation: 652 F. Supp. 20
• Parties: UNITED STATES of America, Plaintiff, v. Sorkis WEBBE, Jr., et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

652 F. Supp. 20

UNITED STATES of America, Plaintiff, v. Sorkis WEBBE, Jr., et al., Defendants.

No. 83-242 CR (5).

United States District Court, E.D. Missouri, E.D.

October 28, 1985.

Memorandum Opinion March 21, 1986.

Robert Ritchie, Knoxville, Tenn., for plaintiff.

Burton Shostak, St. Louis, Mo., for defendants.

ORDER

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.

MEMORANDUM OPINION

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 Webbe, Sr. and Sorkis Webbe, Jr. By an order dated October 15, 1982, the District Court in Cause No. 82-MISC-329 authorized the interception of the oral communications of a variety of parties, including Webbe, Sr. and Jr. in two offices on the third floor of the Mayfair Hotel in St. Louis, MO. The court order, issued by Hon. H. Kenneth Wangelin was granted under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Act" or "Title III"), as amended, 18 U.S.C. § 2510-2520. The issue now before the Court is whether Judge Wangelin would have issued the order of surveillance or would have had the authority to do so had the evidence adduced in support of the renewed motion to suppress been available to him. This evidence involves, in brief, the purported Brady or Jencks Act material described in the government's letter to the Court and counsel of October 17, 1985.

The defendants maintain that as a way of obtaining entry or access to the offices which were to be surveilled was obtained illegally before Judge Wangelin entered the order for surveillance, defendant Webbe, Jr.'s statutory and constitutional rights were violated. Defendants reason that if Judge Wangelin knew before he entered the surveillance order that the government already had illegally obtained a way to gain access to the offices to be surveilled, he might not have entered the order. Defendants maintain, in addition, that the method of obtaining access to the office to be surveilled was in itself an illegal search and seizure and a violation of defendant Webbe, Jr.'s fourth amendment rights.

The Court finds, from the new evidence, that the Mayfair Hotel located in the City of St. Louis, Missouri, including the land, the physical facility and the furniture, furnishings, equipment and contents were owned by a partnership known as the Prestige Hotels. Webbe, Jr. owned an approximate 10% of the partnership and other parties, not involved with this litigation owned the remaining interests. Charsar, Inc., a corporation, had a management contract with Prestige to operate the Mayfair Hotel. Webbe, Jr. served as the general manager of the hotel as an employee of Charsar. During much of the time in question, Webbe, Jr. also served as a member of the Board of Aldermen of the City of St. Louis representing the Seventh Ward.

The business office for the hotel management was located on the third floor of the hotel. That business office was also used by Webbe, Jr. for the purpose of conducting St. Louis City Seventh Ward and other political business. A sketch of the third floor, copy of which is attached to this opinion, shows the layout of the facilities. The hotel business offices are located on the north and the east side of the floor. Law offices, hotel guest rooms, stairways and elevators and a storage area for the hotel business are situated on the south side. These offices are separated by a common hall leading to the elevators and the stairs.

During October, 1982, the time in question, the law offices were occupied and clients of the attorneys came to the third floor for consultation. Guests of the hotel also occupied two guest suites on the third floor and these guests and clients used the elevators and the stairs and the common hallway on the third floor.

Webbe, Jr. and Sr. occupied personal offices at the northeast corner of the third floor layout. Access to these offices was had by a hallway leading to the elevators or the stairs. That hallway was the same one utilized by the hotel guests as well as law office clients. Access to the Webbe offices was obtained from the hallway through...