designed only to persuade the jury that defendants should be acquitted because the government engaged in misconduct during its investigation. Such an argument may be made only within the bounds of the entrapment defense considered in the following section.
The government seeks to preclude defendants from arguing a defense of entrapment unless they can first show evidence of a reluctance to accept money from Burnett. Defendants respond only by arguing that they will be able to demonstrate such reluctance.
The defense of entrapment is a matter for the jury, rather than the Court, to decide, unless the evidence of entrapment is so insubstantial that an entrapment defense is not available as a matter of law or is so overwhelming that the defense must be successful as a matter of law. See Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 886, 99 L. Ed. 2d 54 (1988); United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir. 1986); United States v. Navarro, 737 F.2d 625, 634-35 (7th Cir.), cert. denied, 469 U.S. 1020, 83 L. Ed. 2d 364, 105 S. Ct. 438 (1984). The issue of whether an entrapment defense is appropriate for consideration by the jury is one that generally should not be decided before trial. United States v. Fadel, 844 F.2d 1425, 1430-31 (10th Cir. 1988). Here, the government seeks not a pretrial determination of whether an entrapment defense is available, but only an assurance that defense counsel will not argue entrapment to the jury unless and until sufficient evidence has been presented to create a jury question as to entrapment. The government's position is in accord with the case law, and its motion is granted. (Argument concerning entrapment is thus not to be included in any opening statements which are made before the government puts on its case.)
D. Non-Corrupt Actions
The government requests that defendants be precluded from arguing or presenting evidence that they performed in a non-corrupt fashion in transactions not charged in the indictment. Both sides rely on United States v. LeFevour, 798 F.2d 977, 980 (7th Cir. 1986), in which the court affirmed the exclusion of evidence that the defendant, a judge charged with accepting bribes to dismiss parking charges, generally dismissed parking charges even without being paid. The defendant's theory was that individuals other than the defendant had received the bribe money, and the defendant, without knowing bribes had been paid, dismissed the charges in accordance with his usual practice.
The government's reliance on LeFevour is misplaced. The court accepted the defendant's argument, but affirmed the exclusion of the evidence because the specific evidence offered by the defendant did not support his theory -- it failed to show that the defendant's usual practice was to dismiss parking charges.
However, defendants' reliance on LeFevour is also misplaced. In LeFevour, the defendant was able to articulate a credible theory as to the relevance of evidence that he generally dismissed parking charges. Here, in contrast, defendants have articulated no theory of how their engagement in some non-corrupt transactions shows that they are not guilty of the offenses charged in the indictment. Because defendants have not shown any relevance for such evidence, the government's motion is granted. See also United States v. Davis, 673 F. Supp. 252, 261 (N.D. Ill. 1987).
E. Opinions Concerning Wrongdoing
The government seeks to preclude defendants from offering the opinions or conclusions of witnesses that defendants' conduct was not improper or illegal. Defendants argue that such evidence is relevant because it tends to negate the element of intent. The only way that such evidence could conceivably be relevant to defendants' intent is to show that defendants were unaware that what they did was illegal. Admission of such evidence would thus contravene the "time worn" maxim that "ignorance of the law is no excuse." United States v. Monteleone, 804 F.2d 1004, 1009 (7th Cir. 1986), cert. denied, 480 U.S. 931, 107 S. Ct. 1567, 94 L. Ed. 2d 759 (1987). This maxim "is not an absolute rule; 'ignorance' may be a defense when it negates a mental state that is an element of the charged offense." Id. However, defendants have not articulated any theory of how opinion evidence that their conduct was not illegal negates a mental state that is an element of an offense charged in this case. Because defendants' only argument is the conclusory one that such evidence would negate intent, the Court will follow the general rule that the legality or normalcy of the charged conduct is an issue to be determined by the Court, not the jury. The government's motion is granted. See also United States v. Stirling, 571 F.2d 708, 736 (2d Cir.), cert. denied, 439 U.S. 824, 99 S. Ct. 93, 58 L. Ed. 2d 116 (1978); United States v. Davis, 673 F. Supp. 252, 261 (N.D. Ill. 1987).
III. McCLAIN'S MOTIONS
Defendant McClain seeks a ruling that all of the government's tape recordings are inadmissible. Alternatively, he requests an in camera determination as to the accuracy of the government's transcripts.
Most of defendants' motions relating to tape recordings were disposed of in open court on February 14, 1989. The Court granted, in part, several motions for additional time to designate tapes to be offered at trial and to object to tape designations. The government and most defendants had already exchanged tentative tape designations. The Court ordered that final tape designations must be submitted by February 21, 1989,
and stated that no party will be allowed to introduce tape recordings which have not been timely designated.
The Court ordered that any objections to tape designations must be submitted by February 28, 1989,
and that response to the objections are due March 7, 1989.
The Court also specified how objections are to be made, emphasizing that objections based on audibility of tapes or accuracy of transcripts are to be specific and to refer to particular passages.
McClain's motion, submitted before the February 14 hearing, seeks wholesale exclusion of the tapes based on alleged inaudibility of tapes and inaccuracy of transcripts. The Court denies this motion without prejudice. If defendant wishes to challenge particular tapes, he may do so on an individualized basis. Depending on the nature of his objections and the objections of other defendants, the Court may review the tapes in camera to determine their admissibility. If a large number of tapes are objected to on a ground such as audibility which will require the Court's review of the tapes, the Court may request the defendants to specify a sample of the five least audible tapes. If the Court determines that those five tapes are not so inaudible as to be inadmissible, there would be no need to examine the other tapes. Conversely, the Court may ask the government to specify the five tapes which, while objected to, are the most audible. If that sample is so inaudible as to be inadmissible, the Court need not review the remaining tapes subject to audibility objections.
IV. KNOX'S MOTIONS
A. Motions for Discovery
On January 19, 1989, defendant Knox filed a motion for an order compelling the government to produce tapes, transcripts and FBI reports concerning Knox created during investigations of Knox relating to other cases. He also filed a motion for an order requiring the government to disclose whether he has been overheard in any telephone conversation by any government agent since his confinement.
In a minute order dated January 26, 1988, the Court made clear that "scrupulous compliance with Local Criminal Rule 2.04(c) will be required as to motions requesting further discovery." Rule 2.04(a) provides for discovery of certain materials by the parties in a criminal case during a pretrial conference to be held after the arraignment. Rule 2.04(b) provides that if the government declines to make requested materials available to the defense, it shall do so by written notice submitted to defense counsel and the Court. Rule 2.04(c) provides as follows:
In the event that either party thereafter moves for additional discovery or inspection, his/her motion shall be filed within five (5) days of the pretrial conference held pursuant to A of this Rule or such later date as may be set by the Court for the filing of pretrial motions. The motion shall contain:
(1) the statement that the prescribed conference was held;