No. 03 CR 779

y. City of Woodstock, 176 F.3d 952, 954 (7 Cir. 1999).

The motion is denied.

Des QL, 2004.

Av nse 8 Worco—

Page 3

\ JAMES B. MORAN
i

ior Judge, U. S. District Court



Minute Order Form (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge James B. Moran than Assigned Judge
CASE NUMBER 03 CR 779 - 2 DATE 4/2/2004
CASE UNITED STATES OF AMERICA vs. LAURENCE W. CAPRIOTTI, et al
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
MEMORANDUM OPINION AND ORDER

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due __

@) o Answer brief to motion due. . Reply to answer brief due. .

(4) a Ruling/Hearing on set for at

(5) oO Status hearing[held/continued to] [set for/re-set for} on set for at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) ao Trial[set for/re-set for] on at

(8) 0 [Bench/Jury trial] [Hearing] held/continued to at

(9) ao This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) ClLocal Rule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).

(0) =x [Other docket entry] Enter Memorandum Opinion And Order. The motion to suppress the January
5, 2000, tape recordings of a conversation between Hargrove and defendant Laurence W. Capriotti is
denied as moot. We deny the motion with respect to the other conversations for other reasons.

(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone. A

Y | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notice
courtroom

LG deputy’s ‘ Sg
initials

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central Clerk’s Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA )
)

vs. ) No. 03 CR 779
)

LAURENCE W. CAPRIOTTI, JACK L. )
HARGROVE, MICHEL D. THYFAULT, )
JAMES R. WALLWIN and GEORGE J. )
STIMAC, )

)
)

Defendants.

MEMORANDUM OPINION AND ORDER

Jack Hargrove, one of the defendants, moves to suppress six tape recordings of
telephone conversations. Only five are presently at issue because the government denies any
intention of using one in its case-in-chief. Accordingly, the motion to suppress the January 5,
2000, tape recording of a conversation between Hargrove and defendant Laurence W.
Capriotti is denied as moot. We deny the motion with respect to the other conversations for
other reasons.

The government rests upon several grounds for the legality of the interceptions and
Hargrove disputes each of them. We do not believe, however, that we need go beyond the first
ground — Gary Bertacchi, a participant in each of the conversations, consented. 18U.S.C.
§2511(2)(d) provides that an interception is not unlawful “where one of the parties to the
communication has given prior consent to such interception,” unless the purpose was for
reasons not relevant here.

Hargrove was chairman of the board of directors of Independent Trust Corporation

(Intrust). Gary Bertacchi was president of Intrust and Capriotti was an Intrust director. The

SK


No. 03 CR 779 Page 2

board of directors, which was the three of them, in 1996 authorized a replacement of a reel-to-
reel system of recording telephone calls. Implementation was left to a subordinate, James B.
Jurewicz. The new system consisted of a group of lines called “loop lines,” plus a number of
private lines. To activate his or her private line, the sender pushed a button on the telephone.
Otherwise, the call went out on the common office or “loop” lines. Apparently the directors
were unfamiliar with the details, as is evident by Bertacchi’s deposition in a civil action.
Bertacchi was unaware that calls on his private line were recorded, until he heard a recoding
ofa call on his private line in or about September 1999. Hargrove claims he did not know that
calls on private lines were recorded, and Capriotti claims he did not know that the calls which
are the subject of the motion were recorded (although Jurewicz says he told Capriotti in 1998
that all calls were needed, except those on a pay phone).'

All five calls were placed from Bertacchi’s office or the conference room to Hargrove.
The office had a private line; the conference room did not. The only call on the office private
line was on November 11, 1999, when Bertacchi and Capriotti called Hargrove. While
Bertacchi is “virtually” certain he placed all the calls, who placed them isirrelevant. Bertacchi
was a party to all the communications. The November 11, 1999, call was well after September
1999. Bertacchi knew the call was being recorded. He knew the other calls were being
recorded. He did not need to sign a consent declaration. Use after actual notice is implied

consent. United States y. Workman, 80 F.3d 688, 693 (2d Cir. 1996), cited favorably in Amati

‘The questioning of Bertacchi seems to have focused primarily on incoming calls and Hargrove refers
to the purpose of the system as the recording of “customer and customer representative, account-related
directions,” although he concedes he was aware that a phone taping system was in place. Bertacchi has made
it very clear in two affidavits that he knew the system taped both incoming and outgoing calls, and one would
be hard-pressed to conjure up a reason why a company would wish to record conversations of calls placed by
customers to Intrust and not calls placed by Intrust to customers. And, obviously, a recording device is not
activated or deactivated by the substance of the conversation or the nature of the call.