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UNITED STATES v. FINLEY

February 28, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
MORGAN FINLEY, et al., Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

HON. ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 Defendants are charged with various offenses stemming from the FBI's "Operation Incubator" probe into possible corruption in the awarding of collection contracts by the City of Chicago and Cook County, Illinois. Relevant background information may be found in the Court's previous opinions in this case. See United States v. Finley, 705 F. Supp. 1272 (N.D. Ill. 1988) (denying, inter alia, substantive motions to dismiss indictment); United States v. Finley, 705 F. Supp. 1297 (N.D. Ill. 1988) (denying motions to dismiss based on publicity and government misconduct). Currently before the Court are various motions in limine.

 II. GOVERNMENT MOTIONS

 A. Motions Relating to Michael Burnett

 1. Impeachment and Bad Acts

 The government stated in court on September 20, 1988, that it did not intend to call as a witness Michael Burnett, the informant who the government used to assist in the gathering of much of its evidence. The government has not informed the Court of any change in this position, but the government's discovery material relating to Burnett is not due until March 1, 1989 and its designation of witnesses is not due until April 3, 1989. In the event that Burnett is not called as a government witness, the government seeks to preclude introduction of evidence to impeach his credibility and evidence of any prior bad acts. Defendant McClain has filed a cross-motion in limine seeking to impeach Burnett's credibility at trial regardless of whether Burnett testifies. *fn1" The government's essential argument is that a party cannot impeach a person who neither testifies nor is the source of hearsay statements admitted for their truth. Although conversations in which Burnett participated will be introduced at trial, the government argues that the statements of Burnett will not be offered for their truth.

  The Court agrees that, as a general matter of relevance, a person who does not testify at trial and who is not the source of statements admitted for their truth is not subject to impeachment. See, e.g., United States v. Kabbaby, 672 F.2d 857, 863-84 (11th Cir. 1982). Defendants offer a number of arguments against the applicability of this rule to the case at hand. It is to those arguments that the Court now turns. *fn2"

 a. Extortion Counts

 A number of the counts in the indictment charge defendants with extortion or attempted extortion. To prove the crime of extortion, the government must present evidence of the victim's state of mind. United States v. Tuchow, 768 F.2d 855, 866 (7th Cir. 1985). The government affirms that it "will not offer any statements of Burnett for the truth on the issue of his mental state." It certainly is the government's prerogative not to rely on such evidence to prove extortion, and defendants do not argue otherwise. Defendants do, however, take issue with the government's further statement that even if it does introduce such statements for their truth, it will "remedy any problem by proceeding only on the theory of attempted extortion." The government's argument makes no sense, for it is the introduction of the statements for their truth which would create a potential need for cross-examination. What the government apparently intends to argue is that if it is unable to prove extortion without introducing Burnett's statements for their truth on the issue of his state of mind, the government will proceed on its alternative theory of attempted extortion, which does not require proof of the victim's state of mind. Defendants argue that the victim's state of mind must be proven to establish even attempted extortion. The Court disagrees. "Since the offense of attempted extortion is complete the moment the property is demanded but before the actual transfer of the property, see United States v. Rindone, 631 F.2d 491, 493 (7th Cir. 1980), Burnett's state of mind is irrelevant to proving the crime charged." United States v. Davis, 673 F. Supp. 252, 259-60 (N.D. Ill. 1987). In any event, the issue currently before the Court is not the sufficiency of the government's evidence. The issue is whether the existence of counts charging extortion or attempted extortion allows defendants to impeach Burnett even if the government does not introduce his statements for their truth. The Court holds that it does not.

 Defendants further rely on F.R.E. 404(a)(2), which makes relevant "evidence of a pertinent trait of character of the victim of the crime offered by an accused." Defendants argue that Rule 404(a) (2) permits introduction of evidence of Burnett's character because Burnett is the victim of the alleged extortion or attempted extortion. However, Rule 404(a) (2) is limited to evidence of a "pertinent" character trait. The character trait which defendants seek to establish is Burnett's "deceitful magnetism and the effect of the same upon the listener. (McClain's Reponse to Government's Motion in Limine at 6.) Defendants also rely on Rule 404(b), which allows evidence of other acts if they are relevant to a material issue other than to prove character. Defendants claim that other acts of Burnett are relevant to demonstrate "an intent, preparation or plan to deceive and 'trick'" defendants. (McClain's Response to Government's Motion in Limine at 6.) Such evidence is not, in itself, actually impeachment of Burnett but may be pertinent only to a possible entrapment defense. Accordingly, this evidence is governed by the discussion infra at Part I.C.

 b. Defendants' Adoption of Burnett As Witness

 c. Indirect Impeachment

 The government argues that defendants should not be permitted to impeach Burnett under the guise of impeaching government witness Bernard Sandow, by whom Burnett was employed. As the government notes, questions concerning bad acts by Burnett would not be proper impeachment of Sandow. Defendants have not responded to this argument. The government's request is granted. Cf. United States v. Davis, 673 F. Supp. 252, 260 (N.D. Ill. 1987).

 d. Rule 806

 Defendants argue that Burnett is subject to impeachment pursuant to F.R.E. 806, which provides in part: "When a hearsay statement, or a statement defined in Rule 801(d) (2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness." As is clear from the text of Rule 806, it does not apply universally to all circumstances where a person's statements may be heard by a jury. Whether Rule 806 applies depends on the grounds on which the statements are admitted in evidence.

 Defendants first contend that the government will introduce Burnett's taped statements for their truth pursuant to the co-conspirator hearsay exception, Rule 801(d) (2) (E). However, the government represents that Burnett's statements are not co-conspirator statements admissible pursuant to Rule 801(d) (2) (E). Rather, the government submits that Burnett's statements are admissible as "reciprocal and integrated utterance(s) between the two parties for the limited purpose of putting the responses of the [defendants] in context and making them intelligible to the jury and recognizable as admissions." United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988) (citations omitted). See also United States v. Rollins, 862 F.2d 1282, 1296 (7th Cir. 1988). Although the Court has not yet viewed the tapes, the Court accepts the government's representation that it will not offer Burnett's statements as co-conspirator statements. Defendants may not, therefore, utilize Rule 806 as a ground for impeachment on the basis that Burnett's statements will be admitted pursuant to Rule 801(d) (2) (E).

 Defendants' second contention is that Rule 806 applies because Burnett's statements are admissible as party admissions pursuant to Rule 801(d) (2) (C) or (D), which provide that a statement is not hearsay if it is offered against a party and is "(C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." This argument is flawed for two reasons. First, Burnett is not, by virtue of his status as a government informant, within the scope of Rule 801(d) (2) (C) or (D). See United States v. Powers, 467 F.2d 1089, 1095 (7th Cir. 1972), cert. denied, 410 U.S. 983, 93 S. Ct. 1499, 36 L. Ed. 2d 178 (1973); United States v. Santos, 372 F.2d 177, 180 (2d Cir. 1967). Second, statements are admissible as party admissions only when offered against that party. Thus even assuming that Burnett's statements could bind the government, they would be admissible as party admissions only if offered by defendants. To allow defendants to then impeach Burnett on the basis of such admissions would be contrary to the principle that a party may not offer a statement merely for the ...


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