Remembering the bug in the bathroom

When old men near the end of their careers, they tell war stories. That’s what I do here

One day in early 1992, I rode up in the elevator to the ninth floor of the old federal building with a large number of women who were “oddly” dressed. I could have used the word “provocatively,” but, given recent history, I decided against it. Back then, I was the sole magistrate judge in Omaha,* a widower and a single parent of three kids. And my marriage license to Joan had just appeared in the paper like everyone else who applied for one of those permissions.

I “knew” the women and they “knew” me. They had taken up a position in one area of the spectator area of the courtroom, while watching the 28 days of hearings I held regarding the conspiracy case brought against the Omaha chapter of the Hells Angels and the multitude of pretrial motions that required resolution. See, e.g., United States v. Lucht, 18 F.3d 541 (8th Cir. 1994). The lawyers and I secretly, but warmly, referred to these women as the “biker chicks.”

As the “biker chicks” and I were about to get off the elevator, one of them turned to me. She said something like, “Judge Kopf, from the newspaper, we see you are getting married. All of us just want you to know that whatever happens here, we are very happy for you.” The statement was entirely genuine, and I later recounted it to Joan.  At our reception, Joan’s siblings gave us T-shirts that read: “Rich and Joan, forever together in leather.” They don’t fit now, but we still drag those shirts out from time to time and remember the way we were.

The hearings I was conducting involved a wide variety of issues including the very violent execution of “no-knock” search warrants at family homes, wiretaps and a “bug.” The FBI had decided to take these defendants down hard, and I mean very hard. The lawyers and I did a lot of planning beforehand to schedule and manage the hearings, and because there were a lot of lawyers for the defense, we needed a manager and David Stickman became the coordinating lawyer for defendants. He did a fantastic job and, of course, later became our first (and still only) Federal Public Defender. The prosecutor, who later on went to do even bigger things for the government, was Steve Von Riesen. Just an absolute peach of a person and a very tough prosecutor to boot.

During those hearings, I also got to know folks like Alan Caplan, from San Francisco, and locals like Alan Stoler, Stu Dornan and Mike Levy. I learned that Caplan was the “go to” lawyer for the Hell’s Angels.  I seem to remember that he represented the Chapter treasurer in Omaha. Harvard educated if I recall correctly, he was a great lawyer, and wonderful to work with. Alan Stoler is now, and has been for many years, one of the preeminent criminal defense lawyers in this area, and currently serves the court as the Criminal Justice Act (CJA) panel representative. Dornan, a former FBI agent, later became the head prosecutor for Douglas County, Nebraska (the biggest county in the state) and now leads a well-regarded litigation firm in Omaha. Mike Levy is dead. He died of lymphoma. I came to love Mike. Snarly, funny, kind, and experienced, Mike’s real claim to fame, at least in my mind, was his extraordinary chutzpah when submitting vouchers under the CJA. The Act was to Mike as the ATM is to you and me.

There were several fascinating and important issues in the case.  For example, consider the issue of “bird-lining.”** Local cops, working with the FBI, installed the equipment and then got ready to turn on the telephone taps. Once the tap was up, but before it was authorized, the locals would listen in without court authorization and they would even record conversations. What?

Yes, the cops openly admitted illegally intercepting telephone conversations.  Their explanation:  “Gosh, judge, we were just testing the audio while waiting for the interception order. We destroyed the recordings, and didn’t share them with anyone. Judge Kopf, please stop screaming at us.”

While I didn’t throw out the post-order interceptions, I suppressed the “bird-lining” and tried hard to give the idiot police officers a scalding scolding.

But the most important and fun issue dealt with the “bug in the bathroom.”  The FBI had gotten an order from a federal judge to install a bug in one of the homes.  A “black team” came out from Washington and crept into the home unobserved and installed the bug. The judge had ordered the FBI not to place the bug in a bedroom or bathroom so as to preserve the privacy of the most intimate activities of the residents.  Despite the order, the bug clearly picked up sounds of urination, defecation and fornication.

Without revealing where the bug was, the FBI argued that it had not placed the bug in or near the bedroom or bathroom. According to the feds, the bug was just a really, really, really super-duper bug. This then forced me to confront a national security issue. The FBI claimed that both the specifications for the bug as well as the placement of the bug, if revealed, could impair national security by exposing the capacity of the bug. To this day, I still don’t know whether I was right, but I bought that argument. Much later on after the case was long final, several defense lawyers implied, without admitting, that they knew were the bug had been placed, and that the FBI had not violated the judge’s order.

So, what do I make of this war story?  Certainly nothing that is profound. I do know this, however:  I deeply admire real trial lawyers who handle tough cases and it has been my great privilege to watch lawyers like that practice their art. Once in a while, I even get a funny T-shirt out of the deal.


*When I became a district judge in late spring of 1992, I took over portions of the case in my Article III capacity.

**The defense lawyers named this practice “bird-lining,” implying that the cops got probable cause from what “a little bird sitting on a telephone line” told them.

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