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UNITED STATES v. SHIELDS

August 13, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID J. SHIELDS and PASQUALE F. DELEO, Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

I. INTRODUCTION

 The government alleges in this criminal prosecution that defendant David J. 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. Pending before the Court are the government's motions in limine. For the reasons set forth below, those motions are granted in part and denied in part.

 II. ANALYSIS

 A. Evidence and Argument of Other Lawful, Non-Corrupt Conduct

 The government asks the Court to preclude the defendants from offering evidence of the any lawful, non-corrupt conduct by the defendants on occasions not covered by the indictment, including: (a) specific instances of lawful conduct; and (b) a taped statement or conclusion by Patrick Marcy, secretary of the First Ward Democratic Organization, to the effect that he "wouldn't go near [Shields] with a ten-foot pole." In the government's view, the only evidence in this vein which the defendants might properly bring before the jury would be testimony which meets the requirements and limitations of Fed. R. Ev. 405(a) as to character and reputation evidence.

 The Court grants the government's motion in part. Evidence that a defendant acted lawfully on other occasions is not admissible to prove that the defendant acted lawfully on the occasions referenced in the indictment. E.g., United States v. Heidecke, 900 F.2d 1155, 1162 (7th Cir. 1990); United States v. Burke, 781 F.2d 1234, 1243 (7th Cir. 1985); United States v. Winograd, 656 F.2d 279, 284 (7th Cir. 1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612 (1982); United States v. Biesiadecki, 1990 WL 36232 at *4 (N.D. Ill. March 8, 1990) (Rovner, J.), aff'd, 933 F.2d 539, 544 (7th Cir. 1991); United States v. Davis, 673 F. Supp. 252, 261 (N.D. Ill. 1987) (Williams, J.), aff'd, 890 F.2d 1373, 1380 (7th Cir. 1989), cert. denied, 493 U.S. 1092, 110 S. Ct. 1165, 107 L. Ed. 2d 1068 (1990).

 Shields argues that he must be permitted to introduce evidence of his lawful conduct on other occasions in light of certain statements that DeLeo allegedly made during one of his recorded conversations with Robert Cooley, the government's cooperating witness. For example, according to the government's transcript of a conversation between Cooley and DeLeo on August 16, 1988, DeLeo said (purportedly regarding Shields), "He'll do whatever we want. All he's wan. . . worried about is this." (Transcript at 1, Tape No. 163, Aug. 16, 1988.) The government further asserts that when DeLeo spoke of "this," he rubbed his fingers together in a gesture Cooley took to mean "money." Shields contends that DeLeo's statement effectively portrayed Shields as a corrupt judge who had taken bribes in the past, and that he must be permitted to refute this characterization with evidence of lawful conduct.

 DeLeo's alleged statement does not open the door to evidence that Shields had engaged in non-corrupt conduct on other occasions. Although DeLeo's remarks may reflect his opinion or prediction that Shields would accept bribes and rule as Cooley wished, none of his remarks make reference to specific prior instances of wrongdoing by Shields. Thus, absent the introduction of other evidence suggesting wrongdoing by Shields on prior occasions, there is no need for any collateral evidence regarding instances of lawful conduct. Moreover, this does not leave Shields without a means to meet DeLeo's assertion, for, as the government concedes, Shields is free to present character or reputation evidence which casts him in a more favorable light.

 The government has specifically moved to bar, and Shields has asked the Court to admit, evidence of the statement purportedly made by Patrick Marcy that he "wouldn't go near [Shields] with a ten foot pole." (Transcript at 1, Tape No. 157, July 14, 1988.) Although the Court is inclined to agree that this statement would not be admissible standing alone, in a separate ruling the Court has granted DeLeo's motion to compel the government to play all of the tape recordings in their entirety, in the interest of affording the defendants the benefit of a complete picture of the circumstances leading up to the indictment and the course of the alleged conspiracy. Accordingly, this statement will be played to the jury pursuant to that ruling; and, as a practical matter, Shields will therefore have the benefit of whatever limited value it may have. However, the Court wishes to make clear that the consequential admission of this statement for contextual purposes does not reflect a ruling that evidence comparable to Marcy's statement is otherwise admissible. Moreover, with respect to each conversation like this one between Marcy and Cooley, which does not involve an alleged co-conspirator, the Court will be instructing the jury that the conversation has been admitted for the limited purpose of showing that the conversation took place and demonstrating the sequence of events, and not for any other purpose. See United States v. Conn, 769 F.2d 420, 422 (7th Cir. 1985).

 Shields may have articulated a credible theory for the admission of certain narrow types of testimony regarding his prior conduct. Shields predicts that the government will argue that Shields must have engaged in corrupt conduct because (1) Shields met with DeLeo in his chambers while the mock Nichols v. Wilson suit was pending before him; and (2) he ruled favorably to Cooley and Cooley's fictional client in that case. Shields argues that given the circumstantial nature of the government's case against him, and given the likelihood that the government will advance the type of arguments he has described, he is entitled to present evidence that (1) it was his custom to meet with lawyers in his chambers; and (2) that he had ruled similarly in cases comparable to the Nichols litigation.

 Under United States v. LeFevour, 798 F.2d 977, 980 (7th Cir. 1986), it may be proper for Shields to offer evidence of a customary practice which would cast an innocent explanation upon conduct which the government portrays as evidence of wrongdoing. See also United States v. Finley, 708 F. Supp. 906, 914 (N.D. Ill. 1989). Evidence that Shields customarily visited with lawyers in his chambers would appear to fall within this category, and constitute an acceptable means to rebut an explicit or implicit contention by the government that DeLeo's meetings with Shields were necessarily suspect. Accordingly, the Court finds this type of evidence admissible. However, evidence that Shields had disposed of other individual cases comparable to the Nichols case in the same or similar manner is more problematic. If the evidence tends to establish a custom or routine of handling cases a given way, then perhaps it would be admissible. But if the evidence simply shows that Shields acted in a given way in certain, individual cases, it may well lack the probative force sufficient to render it admissible under LeFevour. See 798 F.2d at 980. The evidence might be relevant if the circumstances of these other instances were substantially similar to the Nichols case; even then, however, Fed. R. Ev. 403 might counsel against conducting mini-trials on events which are remote from the occurrences at issue here. Accordingly, Shields' request that evidence in this vein be admitted is denied without prejudice to Shields making a detailed offer of proof which satisfies the terms of LeFevour at least four business days prior to the intended introduction of the proffered evidence. The Court will not accept such a proffer after the permitted time.

 B. Evidence and Argument regarding Outrageous Government Conduct

 The government moves to bar defendants from presenting evidence or making arguments to the jury suggesting that they should be acquitted because government engaged in misconduct in the course of its investigation. This motion is granted for the reasons stated in United States v. Finley, 708 F. Supp. 906, 913 (N.D. Ill. 1989) (Rovner, J.). See also United States v. Mosky, 1990 WL 70823 at *1 (N.D. Ill. May 7, 1990) (Williams, J.); United States v. Davis, supra, 673 F. Supp. at 260-61. *fn1" Thus, the defendants are barred from attempting to bring matters such as notification of the state courts by the federal government of its ...


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