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October 31, 1990


Ilana Diamond Rovner, United States District Judge.

The opinion of the court was delivered by: ROVNER



 Defendants are charged under the Assimilative Crimes Act, 18 U.S.C. ยง 13, *fn1" with conspiracy to commit murder and aggravated battery (punishable by Ill. Rev. Stat. ch. 38 paras. 8-2, 9-1 and 12-4) and solicitation of murder (punishable Ill. Rev. Stat. ch. 38 paras. 8-1 and 9-1). Pending are various pretrial motions brought by defendants. This opinion addresses those motions which are brought by both defendants and all but one of the motions brought solely by defendant Parades. *fn2"


 Defendants have filed a motion in limine to preclude references at trial to the fact that the events alleged in the indictment occurred while defendants Parades and Soper were incarcerated at the Federal Prison Camp in Marion, Illinois and while Parades was later incarcerated at the Metropolitan Correctional Center ("MCC") in Chicago, Illinois. They argue that the only relevance of the fact of their incarceration is to establish federal jurisdiction under the Assimilative Crimes Act. Defendants are willing to stipulate to federal jurisdiction. Accordingly, they argue that evidence of their incarceration would be unduly prejudicial and should be excluded pursuant to Fed. R. Evid. 403.

 The government contends that the fact of defendants' incarceration is a necessary part of the crime, and that the facts of the crime cannot be developed adequately without reference to the incarceration. In order to address this issue, it is necessary to review the facts as the government alleges them to be.

 According to the government, Soper was incarcerated at Marion while serving a sentence for committing a $ 250,000 fraud on his former employer, Leaseway Transportation. That conviction provided the basis for a million-dollar civil RICO lawsuit which Leaseway Transportation brought against Soper. In order to hide his assets, Soper and his wife Jacquelyn filed a collusive divorce in December, 1984. Jacquelyn had previously been married to Robert Schmidt. Schmidt began to complain to his daughters from that marriage that Russell and Jacquelyn Soper were cheating the government and lying about their assets and that he planned to approach the Internal Revenue Service and the Federal Bureau of Investigation. Indeed, Schmidt had approached the FBI in May, 1984.

 Meanwhile, Soper met Parades while they were both incarcerated at Marion. Soper solicited Parades to "take care of" Schmidt. Soper and Parades also met Dave McCoy at Marion, and Parades promised to pay McCoy $ 1500 to kill Schmidt. Subsequently, while both Parades and McCoy were in custody at the MCC, Parades made an initial payment of $ 750 to McCoy to kill Schmidt and gave McCoy a photograph of Schmidt.

 The government states that in order to prove its case it must explain how the Marion prison telephone system operates. Most of the government's non-testimonial evidence consists of tape recordings of the defendants' conversations on that telephone system. These tapes cannot be adequately explained and presented to the jury without evidence of how Soper made collect calls to various persons outside the prison system. Furthermore, the government alleges that the conversations are in code, and the government wishes to explain the use of code by proving that defendants knew that the Marion inmate phones were monitored.

 The government argues that it is also necessary to prove Parades' stay at the MCC. It must show that while he was at the MCC, Parades was released during the day on work release and was therefore able to communicate by telephone with Soper. Furthermore, the government cannot explain McCoy's role without explaining that he was also serving the work release portion of his sentence at the MCC. Finally, the government cannot explain how Parades came to trust McCoy to carry out the murder without explaining the relationship between the two men, which originated at Marion and continued at the MCC.

 The Court agrees with the government that evidence of defendants' incarceration should not be excluded pursuant to Rule 403. The incarceration was such an integral part of the facts surrounding the conspiracy that to carve from the case all references to the places of incarceration would substantially hinder the government in proving its case. This is not a case where references to the incarceration or to a prior conviction would be gratuitous; the facts are probative and, indeed, central to the government's case. Because the probative value of this evidence is not "substantially outweighed by the danger of unfair prejudice," Rule 403 does not warrant exclusion of the evidence.


 Defendants have moved to strike from the indictment all references to the Illinois statutes on which the government relies to support the charges under the Assimilative Crimes Act. Defendants argue that there exist disciplinary regulations promulgated by the Attorney General pursuant to congressional authority which govern the conduct in question. See 28 C.F.R. Part 541. These regulations proscribe punishment for certain infractions committed by inmates of a federal correctional facility. Defendants argue that because these congressionally authorized regulations apply to the alleged conduct, the offenses do not come ...

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