The opinion of the court was delivered by: ROVNER
The defendants in this case, a former state court judge and an attorney, are charged with having engaged in bribery in the context of a fictional lawsuit which the federal government had filed in an effort to ferret out alleged corruption within the Illinois courts. Defendant David J. Shields has filed two motions regarding the notice which the government provided to a representative of the Illinois court system that fictional cases would be filed within the Circuit Court of Cook County as a part of its undercover investigation. The first is a request that the government be required to disclose the terms and circumstances of the notice it provides. The second is a motion to dismiss the superseding indictment for the purportedly improper use of an undercover project. Shields brings this motion on the ground that the notice provided failed to comport with Shields' due process rights. For the reasons set forth below, the Court denies both motions.
The government alleges in this criminal prosecution that defendant Shields, formerly the Chief Judge of the Chancery Division of the Circuit Court of Cook County, Illinois, accepted bribes from his co-defendant, Pasquale F. DeLeo, an attorney, in exchange for favorable treatment in a case pending before Shields. The case in question, Nichols v. Wilson, No. 88 CH 6337, was a mock lawsuit which the government prepared and filed as part of an undercover investigation of purported corruption within the Illinois court system. As the result of a system of random assignment, the case was assigned to the docket of Shields, and events which allegedly transpired in the staged litigation of that suit form the basis for the indictment of Shields and DeLeo.
In the course of pretrial discovery, Shields requested that the government disclose the terms and circumstances under which the Illinois courts were notified that the government was conducting its investigation. The government represented to Shields that such notice had been given, but declined to identify any particulars.
Shields has filed two motions regarding this issue which now require a decision from the Court. Initially, Shields requested an order from the Court directing the government to disclose the manner in which it had provided notice to the Illinois courts of its investigation. Shields contended that this information was required in order for him to be able to ascertain whether the government's conduct comported with due process. In response, the government represented that it did provide notice to the Illinois courts, but contended that it should not be made to detail the particulars of the notice given. Before rendering a decision on this motion, the Court directed the government to submit in camera and ex parte affidavits detailing the notice which it provided to Illinois authorities.
This request prompted a second motion from Shields regarding the notice issue. Shields had evidently been able to obtain from an independent source certain evidence regarding the notice which the government had provided to the state court system, and when the Court asked the government to submit its affidavits outlining the notice it had provided, Shields requested leave to file in camera and ex parte his own affidavit on this matter. The Court granted that request. Shields' affidavit was later submitted to the Court in support of a motion to dismiss the superseding indictment on the ground that the notice provided was inadequate. Plainly, this second motion largely moots the first, for it is apparent that Shields no longer requires discovery in order to determine whether there is a basis for challenging the sufficiency of the notice. Nonetheless, the Court finds it necessary to address the request for discovery as well as the motion to dismiss, particularly in view of the fact that the motion to dismiss includes requests for more expansive discovery on related questions and for an evidentiary hearing on the question of notice. (Shields Mem. at 7 n.5, 9-10.)
This is not the first federal investigation of the Illinois circuit courts to employ fabricated cases. Such cases were used by the FBI extensively in the landmark Operation Greylord investigation, and in United States v. Murphy, the Seventh Circuit endorsed that investigation in commentary which largely disposes of Shields' motions:
The FBI and the prosecutors behaved honorably in establishing and running Operation Greylord. They assure us that they notified the Presiding Judge of the Circuit Court's Criminal Division, the State's Attorney of Cook County, the Attorney General of Illinois, and the Governor of Illinois. Such notice may not be necessary, and certainly a criminal defendant is in no position to complain of the absence of such notice (for he has no personal right to protect the dignity of the Cook County courts), but the notice dispels any argument that the federal Government has offended some principle requiring respect of the internal operations of the state courts. The Greylord cases did not interfere with the smooth operation of the local courts or diminish the rights of any third party. They were, in this respect, less offensive than "sting" operations in which the police go into business as a "fence" for stolen goods. The existence of a well-paying fence may induce people to steal goods to sell to the fence. Here no stranger was at risk. Operation Greylord harmed only the corrupt.
As the government contends, Murphy makes clear that Shields has no standing to challenge the circumstances under which notice was given to the Illinois courts of the investigation which produced this prosecution. Thus, to the extent Shields suggests that deficiencies in the notice provided to the Illinois courts might impair the constitutional propriety of the investigation, an argument which Murphy leaves in doubt ("such notice may not be necessary"), this is not a challenge, according to Murphy, for Shields to make. Indeed, although Shields contends that he has a personal stake in the notice issue (Shields Mem. at 9-10), he has failed to articulate any way in which his own rights are implicated by the provision and form of notice. If anything, his challenge is a far broader one which rests upon the premise that the government's use of fictional lawsuits offends the ethical principles which guide attorney conduct. Although, as set forth below, the Court finds no merit to this contention, it suffices at the outset to reiterate that Murphy leaves no room for a defendant charged as the result of a federal undercover investigation of the state judiciary to raise the adequacy of the forewarning of that investigation provided to state officials. Accordingly, Shields has no entitlement to disclosure of the terms and circumstances under which the government provided notice of its investigation, to an evidentiary hearing on the matter, or to dismissal of the indictment on the grounds that the notice provided was inadequate.
Having concluded that Shields lacks standing to raise the question of notice, the Court need not, and does not, undertake to decide whether the federal government was required to notify Illinois court officials of its plans to mount an undercover investigation within the state court system. Murphy stops short of embracing such a requirement, and certainly the court's opinion did not envision the mini-trials that such a requirement would trigger. In any event, as discussed in further detail below, the government has represented that notice was given and has supported that representation with affidavits from individuals who have personal knowledge of the notice provided. This more than suffices to meet whatever requirement of notice that Shields can find in Murphy. However, Shields' motions rest not solely upon Murphy but also upon In re Friedman, ...