The opinion of the court was delivered by: ROVNER
Pending before the Court are the defendants' objections to the government's tape designations in this case. The Court takes the objections in turn below.
A. DeLeo's Motion to Play Tapes in their Entirety
The government has for the most part limited its tape designations to conversations which fall within the time frame and scope of the alleged conspiracy between defendants Shields and DeLeo. For example, the government has not designated certain preliminary conversations between the government's cooperating witness, Robert Cooley, and Patrick Marcy, secretary of the First Ward Democratic Organization. (See Tape No.'s 145-47, 155, 157, 159, 160-62.) In these conversations Marcy and Cooley discussed whether or not Marcy could be of assistance in either reassigning the government's fictional Nichols v. Wilson suit or seeing whether Shields could be persuaded to dispose of the case favorably. Ultimately, Marcy concluded that he could be of no help, and Cooley then allegedly turned to DeLeo for assistance.
DeLeo has moved to compel the government to play the tapes in their entirety pursuant to Fed. R. Ev. 106. DeLeo argues that playing all of the tapes, including those conversations or portions of conversations which the government has not designated, would explain or place in context those which the government has designated.
DeLeo's motion is granted. The Court has reviewed each of the transcripts and tapes not designated by the government. In those instances in which the government has designated only a portion of a given tape, the excluded portion, although it may not bear directly upon the alleged conspiracy, tends to place the designated portion of the conversation in context and amplify upon the relationships among the defendants and Cooley. As to certain conversations which the government has not designated even in part, e.g., the series of conversations between Marcy and Cooley, the Court finds that playing the recordings of these conversations will help to establish the background, development, and course of the alleged conspiracy. For these reasons, and in the interest of affording the defendants and the jury a complete picture of the defendants' actions, the Court will order the tapes played in full in the government's case-in-chief. Cf. United States v. Conn, 769 F.2d 420, 422 (7th Cir. 1985) (upholding district court's decision to admit certain conversations as verbal acts reflecting course of conspiracy).
This ruling is subject to certain exceptions. As set forth below, the Court has found portions of certain conversations completely irrelevant to any issue in the case or otherwise inadmissible. In such situations, the transcripts (and to the extent possible, the tape recordings) will be modified to omit the passages. The Court's ruling also does not include Tape No. 205, which bears evidence of an alleged conversation between Cooley and DeLeo on June 15, 1989. As set forth in a minute order dated August 12, 1991, the Court has reserved final ruling upon the admissibility of this conversation for trial. (See also pages 26-27, infra.)
1. Government Designation No. 1, Tape No. 164 (8/15/88)
Shields objects to the introduction of this tape recording on the ground that the conversation between DeLeo and Cooley on August 15, 1988 took place prior to the beginning of the conspiracy. The Court rejects this argument. Aside from the fact that the government asserts that the alleged conspiracy began on or about August 15, 1988, (see Indictment para. 2) (emphasis added)
, the recording of this conversation is admissable pursuant to Fed.R.Evid. 106 for the purpose of establishing context. In this conversation, Cooley and DeLeo arrange to meet on the following day, August 16, 1998, to discuss the Nichols v. Wilson lawsuit. The meeting which took place on August 16, 1988, is clearly within the scope of the alleged conspiracy. Accordingly, the conversation on the prior day is admissable in order to establish the setting for the August 16 meeting. See Conn, 769 F.2d at 422. Moreover, there is nothing at all prejudicial in this conversation. Accordingly, Shields' objections to tape no. 167 are overruled.
2. Government Designation #2, Tape No. 163 (8/16/88)
Shields initially objects to this tape on the ground that the government has not proffered sufficient evidence of a conspiracy to render DeLeo's statements admissable pursuant to Fed.R.Evid. 801(d)(2)(E). Shields has repeated this objection throughout his memorandum. However, the objection has been rendered moot by the Court's ruling that the co-conspirator statements are admissable based upon the evidentiary proffer that the government has made pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978). See Minute Order dated August 1, 1991.
Because this conversation plainly falls within the time frame and the scope of the alleged conspiracy, it is admissable pursuant to Rule 801(d)(2)(E).
Shields also objects to certain statements which Cooley made during this conversation regarding the nature and status of the Nichols case. Shields objects to these statements on the grounds that they are offered for their truth, and therefore are inadmissable hearsay. Shields further contends that these statements are unduly prejudicial and should be excluded under Fed.R.Evid. 403.
The Court finds these statements admissable to establish the context of DeLeo's statements and his state of mind. See United States v. Davis, 890 F.2d 1373, 1380 (7th Cir. 1989), cert denied, --- U.S. /--, 110 S. Ct. 1165 (1990); United States v. Craig, 1987 WL 20415 at *5 (N.D. Ill. Oct. 26, 1987) (Rovner, J.). Shields' contention that the remarks are offered to proof the truth of the matters asserted is inaccurate. Because these comments concern the fictional Nichols suit, they cannot be and quite plainly are not offered for their "truth" -- e.g., that the partner of Cooley's client had actually taken money from the partnership account (see Tr. at 3). Moreover, the Court discerns nothing unduly prejudicial in any of the statements Shields has cited. In these passages, Cooley merely discusses the Nichols case, and makes no assertion regarding Shields or DeLeo which could be interpreted as prejudicial.
Finally, Shields has requested that if the tape is played, it be played in its entirety. As set forth above, the Court has granted DeLeo's motion to play all of the tapes in their entirety for purposes of completeness under Fed.R.Evid. 106. Accordingly, this tape will be played in full.
3. Government Designation No. 3, Tape No. 166 (8/17/88)
4. Government Designation No. 4, Tape No. 168 (8/17/88)
Shields objects to statements of an "unknown female" on page three of the transcript as inadmissable hearsay. Shields contends that these designations have no relevance unless offered for the truth of the identification. In essence, Shields contends, the government is offering these statements to show that DeLeo called Shields' chambers, thus proving the truth of the unknown female's indication that DeLeo had reached Shields' chambers.
This objection is overruled, as these statements by the unknown female occur immediately prior to a conversation between Shields and DeLeo. Accordingly, these statements merely set the stage for that conversation, establishing what was said to DeLeo and thus supplying the context for his subsequent statements. See generally United States v. Davis, 673 F. Supp. 252, 259 (N.D. Ill. 1987) (Williams, J.). Moreover, the government's representation that it will supply phone records indicating that DeLeo in fact placed a call to Shields' chambers, coupled with the statement of the unidentified female who answered the call, suffices to allay any concerns about whether or not DeLeo was actually speaking with Shields' chambers. Cf. First State Bank of Denton v. Maryland Cas. Co., 918 F.2d 38, 41 (5th Cir. 1990) (testimony that number of residence had been dialed, coupled with statement of person answering the call which identified the residence, sufficed to authenticate phone call).
Shields next objects to DeLeo's statements during the alleged conversation with Shields as mere narrative declarations. This objection is also overruled. Because DeLeo's statements concern arranging a meeting between Shields and himself, they are plainly in furtherance of the alleged conspiracy.
Shields also objects to the admission of these statements on the ground that they lack the required foundation under Fed.R.Evid. 901. However, as set forth above, based upon the representations of the government (see Gov. Mem. at 16-17), it appears likely that the government will be able to establish the requisite foundation for the telephone call at trial. Accordingly, this objection is overruled.
Shields objects to two of Cooley's statements, page three ("The other guy . . . finding it again"), and the other on page five ("He's taking one day off I guess."). Shields objects to the statement on page three on the ground that it contains affirmative assertions and is offered for its truth. However, because such statements concern the Nichols v. Wilson case, they are not in fact offered for the truth as explained above -- the Nichols case was a complete fiction. Moreover, the Court agrees that such statements are necessary in order to place the defendants' subsequent alleged statements and actions in context. Similarly, Cooley's statement on page five, although characterized by Shields as mere narrative, is necessary to place DeLeo's subsequent remark in context. Accordingly, Shields' objections to the statements are overruled.
5. Government Designation No. 5, Tape No. 166 (8/18/88)
Shields' sole objection to this tape is that the government has not proffered adequate evidence of the alleged conspiracy in order to render the conversation admissable pursuant to Rule 801(d)(2)(E). This objection is overruled in light of the Court's finding to the contrary.
Shields objects to the admission of this tape recording pursuant to Rule 901(a), contending that the tape cannot be authenticated in light of its jumbled, confusing and unintelligible nature. Shields also contends that exclusion is called for by Rule 403, because it is so garbled that its probative value is outweighed by the danger of unfair prejudice, confusion, and misleading of the jury. However, the Court has listened to the tape recording and concluded that it is not so garbled or ...