Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 CR 837--Charles R. Norgle, Judge.
Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and GORDON, Senior District Judge.*fn*
After a seven-week trial, a jury convicted Richard LeFevour, a former state court judge in Chicago, of having violated the "RICO" statute (Racketeer Influenced and Corrupt Organizations), 18 U.S.C. § 1962(d), committed mail fraud, 18 U.S.C. § 1341, and filed false income tax returns, 26 U.S.C. § 7206(1), during a 14-year career of bride taking. He was sentenced to 12 years in prison.
Long the chief judge of the Cook County traffic court, LeFevour is a principal figure in the "Greylord" scandal that has engulfed a number of judges, lawyers, and policemen in Chicago. See, e.g., United States v. Devine, 787 F.2d 1086 (7th Cir. 1986); United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985); United States v. Conn, 769 F.2d 420 (7th Cir. 1985). The Murphy opinion describes some of his schemes, see 768 F.2d at 1524-27, thus allowing us to be brief. They fall in three periods. In the first, which lasted from 1969 to the beginning of 1981, he accepted bribes to dismiss drunk-driving cases. His cousin, Jimmy LeFevour (the principal witness for the prosecution), a policeman assigned to the traffic court, was his "bagman" for these bribes. Lawyers gave Jimmy cash to get their cases dismissed (or the defendant placed on supervision, the mildest sanction for drunk driving), and Jimmy would turn the cash over to the judge after deducting a small pourboire for himself.
In the second (and overlapping) period covered by the charges, 1976 to 1982, the judge accepted bribes for quashing parking tickets. Some of the bribes took the form of free use of leased cars in exchange for dismissing parking tickets for which the leasing company was liable; others, of free use of copying machines supplied by a copier seller whose service personnel had received many parking tickets. In this period the judge also took cash bribes for dismissing charges against "scofflaws." The practice in Cook County is to issue an arrest warrant to anyone who has ten or more unpaid parking tickets. Arthur McCauslin and Lawrence McLain, who, like Jimmy LeFevour, were policemen attached to the traffic court, would serve these warrants. According to their testimony Judge LeFevour proposed and they acceded to a scheme whereby they offered to settle the scofflaw's case for half the fine. If the scofflaw agreed to settle, the money was paid over to the judge, who dismissed the charges and recalled the warrant.
The last period, which ran from 1981 to 1983, began with LeFevour's promotion to chief judge of the first municipal district. A magazine reported "hustling" at two of the courts under the judge's new jurisdiction. A "hustler" is a lawyer who hangs around the courthouse waiting for persons who have been arrested and have posted a cash bond to arrive for an appearance in the case. The hustler accosts the person and offers to represent him in exchange for the bond refund to which an arrested person is entitled at the end of the case. LeFevour sent Jimmy to these courts to put an end to hustling, but once there Jimmy was approached by lawyers who offered to pay the judge to be allowed to continue. The offer was relayed to the judge, who accepted it, and "the Club" was formed, whose five members paid a total of $2,500 a month ($500 to Jimmy, the rest to the judge) for the privilege of hustling.
Apart from testimony by the bagmen and other witnesses to the alleged bribes, the prosecution relied heavily on a reconstruction of Judge LeFevour's finances, showing that he spent much more money than he received from all known legitimate sources.
1. The first ground of the appeal is that the district judge should have allowed the defense to try to prove that it was LeFevour's practice to dismiss parking charges on request. The government argues with great but misdirected vigor that the defense just wanted to prove either that LeFevour had a good character or that he didn't always dismiss parking charges because paid to do so. LeFevour's counsel points out that he had to prove the practice of dismissal on request in order to lay a foundation for his principal defense, which was that McCauslin and McLain had shaken down the parking violators, pocketed the money, and then gone to Judge LeFevour and said, "Please dismiss these charges"--and the judge had obliged because it was his practice to do so. Since the judge did not take the stand, this indirect method was the only means the defense had to show that there might be an innocent explanation (provided the bagmen's testimony was disbelieved) for the undoubted corruption that had occurred.
There is nothing wrong with the argument; the problem is with the specific offer of proof. Detailed though it is (seven pages, plus a two-page letter attached as an exhibit), it fails to mesh with the defense theory. Most of the witnesses whose projected testimony is summarized in the offer are law enforcement officers (or other public employees, including an alderman) who had asked Judge LeFevour to quash tickets that they or other law enforcement officers had received--not tickets issued to private citizens, as in the cases that McCauslin and McLain testified about. The two witnesses who were private citizens (a businessman and a social worker) gave the judge detailed explanations of why their tickets should be quashed. In no case was an arrest warrant recalled. No judge is so corrupt that he dismisses a case only when paid to do so, and all the offer of proof shows is that Judge LeFevour sometimes dismissed cases for other reasons--but in circumstances different from those of the dismissals that according to McCauslin and McLain had been induced by bribes. The relevance of the offered proof to the charges against LeFevour is so tenuous that the district judge was entitled to conclude that its probative value would be clearly outweighed by its effect in confusing the jury by extending an already very long trial. Fed. R. Evid. 403.
2. The defense wanted the jury to hear a portion of a tape recording that McCauslin made after he began cooperating with the government's investigation of Judge LeFevour. McCauslin, while wired for sound, had a conversation in which he told LeFevour that a grand jury had subpoenaed McCauslin and he asked LeFevour what he should do. LeFevour told him not to worry and to get in touch with his lawyer. LeFevour also asked him who his lawyer was and McCauslin answered that it was Seymour Vishny and suggested that he and LeFevour should communicate with each other through Vishny. LeFevour acknowledged the suggestion (according to McCauslin's testimony--the tape recording was garbled at this point), and the conversation ended. But the tape did not end, and after leaving LeFevour, McCauslin had a discussion with the FBI agents who had wired him. He told them he had "put on his best scare act" with LeFevour. Since the tape was still running, this statement was recorded. The defense wanted this part of the tape played to the jury too, but the trial judge ruled it inadmissible because it would confuse the jury and was not relevant to impeaching McCauslin's testimony, McCauslin having admitted making the "scare act" statement. LeFevour argues that this ruling was error. He relies of Fed. R. Evid. 106, which provides that "when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." See United States v. Southland Corp., 760 F.2d 1366, 1378 (2d Cir. 1985).
In ruling that the rest of the tape could not be placed in evidence because it was inadmissible, the judge implicitly treated Rule 106 as merely regulating the order of proof. So the rule is often described, see e.g., United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982); 1 Weinstein's Evidence P106, at p. 106-12 (1985), but the description is misleading. If otherwise inadmissible evidence is necessary to correct a misleading impression, then either it is admissible for this limited purpose by force of Rule 106, the view taken in 21 Wright & Graham, Federal Practice and Procedure § 5072, at p. 344 (1977), or, if it is admissible (maybe because of privilege), the misleading evidence must be excluded too. The party against whom that evidence is offered can hardly care which route is taken, provided he honestly wanted the otherwise inadmissible evidence admitted only for the purpose of pulling the sting from evidence his opponent wanted to use against him. Rule 106 was not intended to override every privilege and other exclusionary rule of evidence in the legal armamentarium, so there must be cases where if an excerpt is misleading the only cure is to exclude it rather than to put in other excerpts. But this is not a matter we need pursue further here, as we do not think there was any danger of a misleading impression.
The government's purpose in placing the tape recording in evidence was to show that LeFevour knew that McCauslin's lawyer was Seymour Vishny; this was relevant in light of evidence (discussed next) connecting Vishny with LeFevour's efforts to conceal his corrupt practices. If the government had excised portions of the conversation between McCauslin and LeFevour and as a result had conveyed a misleading impression, Rule 106 would have entitled LeFevour to play the rest of the taped conversation to the jury--and to do so right after the government had played its portion of the tape ("contemporaneously"), so that the jury would not be left with a false impression that might prove indelible. But the government played the whole conversation; what it left out was a separate conversation between McCauslin and the agents. If the separate conversation had been on a different tape, the weakness of LeFevour's argument under Rule 106 would be transparent--though not just because of the accident of there being two reels of tape rather than one; a letter an the reply to it are a unit for purposes of Rule 106, see 21 Wright & Graham, supra, § 5078, at p. 372 and n. 6. But there is no logical connection between the two conversations that McCauslin had, at least given the very limited use that the government made of the first one. The capacity of a tape, floppy disc, compact disc, or other recording medium is irrelevant to the purposes of Rule 106. The qualifying words, "ought in fairness," show that the duty to place "any other part" of the recorded statement or any other "recorded statement" in evidence is not absolute; obviously, the admission of one recorded statement could not require the admission of every other such statement in the party's possession. See, e.g., United States v. Marin, 669 F.2d 73, 84-85 (2d Cir. 1982).
The purpose of the "completeness" rule codified in Rule 106 is merely to make sure that a misleading impression created by taking matters out of context is corrected on the spot, because of "the inadequacy of repair work when delayed to a point later in the trial." Notes of Advisory Comm. on Proposed Rule 106. An example would be accusing the Biblical David of blasphemy for saying, "There is no God," his full statement being, "The fool hath said in his heart, there is no God." Trial of Algernon Sidney, 9 Howell's State Trials 818, 868-69 (K.B. 1683). We are far from that paradigmatic case here. No misleading impression was corrected by stopping the tape before McCauslin told the agents that he had "put on his best scare act." If he had scared LeFevour into saying something incriminating, there might be some point in allowing the jury to hear McCauslin admit to having tried to manipulate the conversation. But really the only point of placing the recording of the conversation in evidence was to show that LeFevour knew of ...