Shields contends that such a remark could only be offered for its truth, thus rendering it inadmissable hearsay. The government contends that Cooley's remarks correspond to his counting money, which it argues can be heard on the tape. In the government's view, the remarks are not hearsay, because they are relevant to DeLeo's knowledge, and because DeLeo does not contest Cooley's count, are relevant to prove the amount of money allegedly supplied to DeLeo. The government concedes that a limiting instruction would be appropriate, to inform the jury that it may not accept Cooley's statement on the tape as to the amount of money for its truth. However, the government does note that Cooley himself could testify as to the amount of money he allegedly gave DeLeo.
The Court finds the remarks relevant to establish the context of the conversation, particularly given the fact that the sounds of counting can be heard on the tape. The Court will entertain a limiting instruction from the defense restricting the jury's consideration of Cooley's remarks to this limited purpose. However, if the government or the defense decides to call Cooley testify, he may of course offer testimony as to the amount of money he allegedly passed on to DeLeo.
22. Government Designation No. 22, Tape No. 183-8 (9/23/88)
Shields appears to object to this conversation on the ground that Cooley makes references to an amount of money. However the Court has been unable, as has the government, to locate any reference to money during this conversation. Accordingly, Shields' objection appears to be misplaced.
23. Government Designation No. 23, Tape No. 183-9 (9/26/88)
Shields objects to the statements made during this conversation as being irrelevant and not in furtherance of the conspiracy. In particular, Shields contends that these statements postdate the conspiracy and therefore cannot be admitted pursuant to Rule 801(d)(2)(E). However, because this conversation appears to be one in a series in which Cooley and DeLeo discuss whether or not DeLeo has been able to visit Shields and allegedly make final payment to him, the Court finds the statements of DeLeo to be relevant to and in furtherance of the conspiracy. Cooley's statements, of course, come in to establish the context of DeLeo's remarks.
24. Government Designation No. 24, Tape No. 183-12 (9/26/88)
Shields once again objects to DeLeo's statements in this conversation on the grounds that they were not made in the course of and in furtherance of the conspiracy. This objection is overruled on the same grounds as the previous objection concerning tape designation number 23.
Shields also objects to the fact that the government has limited its designation to the first portion of the conversation ending with Cooley's remark "oh okay." Shields contends that the remainder of the conversation should be played in order to place DeLeo's statements at the outset in context. Shields further contends that the conversation reflects Cooley attempting to convey a sense of urgency and perhaps prompting DeLeo to contact Shields. Consistent with its ruling in other instances, the Court will direct the entire conversation to be played in the interests of completeness.
25. Government Designation No. 25, Tape No. 187 (11/07/88)
Shields primary objection is that the government has only designated a limited portion of this conversation. Shields contends that the entire conversation should be played in the interests of completeness pursuant to Rule 106. Shields also objects, however, to the introduction of DeLeo's statements during the conversation because he argues that they were not made in the course of the conspiracy and thus are inadmissable under Rule 801(d)(2)(E). The Court agrees that this conversation significantly postdates the conspiracy and sheds little light on the participation of either DeLeo or Shields in the alleged conspiracy. Accordingly, this tape will not be played.
26. Government Designation No. 26, Tape No. 205 (6/15/89)
This tape recording and transcript will be the subject of a separate ruling by the Court. To the extent that Shields argues designation of this tape should be more expansive than the government has made, the Court will address those arguments at the appropriate time, should the tape be admitted.
Shields has raised accuracy disputes concerning the transcript of this tape recording which may be disposed of at this time. It is too late for such objections. In its opinion regarding the production of draft transcripts, United States v. Shields, U.S. Dist. LEXIS 8359 (N.D. Ill. June 5, 1991), the Court set June 21, 1991 as the deadline for any objections to transcript accuracy. No objections were submitted regarding this particular tape. Nonetheless, in the event the Court permits the government to play this tape, the Court will submit dual transcripts to the jury for its consideration. Accordingly, defendants are to prepare an alternate version of the transcript reflecting their construction of the conversation for use in the event the Court rules the conversation admissible into evidence.
C. Limiting Instructions
At the status hearing on August 12, 1991, the Court instructed the parties to submit for its review any proposed cautionary instructions by the close of business on August 13, 1991. In drafting such instructions, the parties should consider the purposes on which the Court has deemed each of the government's designations admissible. In the event the Court has deemed a particular conversation admissible for a limited, non-hearsay purpose, the parties should prepare an appropriate instruction which may accompany evidence concerning that conversation. At trial, however, it shall be incumbent upon the parties to request that a particular limiting instruction be given at a particular time.
For the reasons set forth above, DeLeo's motion to compel the government to play the tapes in their entirety in its case-in-chief is granted within the limitations of this opinion.
Shields' objections to particular tape designations are overruled in part and sustained in part. The parties are to submit forthwith limiting instructions conforming to the terms of this opinion.