MEMORANDUM OPINION AND ORDER
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.
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.
Thus, the defendants are barred from attempting to bring matters such as notification of the state courts by the federal government of its undercover investigation, the propriety of electronic surveillance, or "manufactured" jurisdiction before the jury.
C. Evidence and Argument of Entrapment
Although the government concedes that both defendants have the right to introduce evidence of entrapment, it seeks an order barring any mention of entrapment in the opening statements unless and until either defendant proffers evidence of entrapment sufficient to create a jury question on this issue. This motion is granted for the reasons set forth in Finley, 708 F. Supp. at 914. Further rulings on the entrapment defense, e.g., as to whether or not either defendant is entitled to a jury instruction on this issue, must be postponed until the Court has heard the evidence presented at trial.
D. Evidence Regarding Instructions Given to Cooley and Other Conversations Between Cooley and Government Officials
The government moves to preclude the defense from inquiring into instructions which the government may have given to Cooley or conversations which Cooley may have had with FBI agents and other government officials. This request is also granted. Absent a detailed proffer as to the type of evidence the defense would expect to elicit, and the relevance of such evidence to the evaluation of defendants' innocence or guilt of the offenses charged, the Court can discern no relevance in any inquiry into these areas. As the court of appeals indicated in United States v. Rovetuso, 768 F.2d 809, 819 (7th Cir. 1985), cert. denied, 474 U.S. 1106, 106 S. Ct. 1951 (1986), evidence of conversations between the government and its cooperating witness are immaterial; rather, what matters is what the witness said to the defendants. The court therefore rejected the defendants' contention that the district court had erred in barring inquiry into discussions between the witness and agents of the government. See also United States v. Reeves, 892 F.2d 1223, 1225 (5th Cir. 1990) ("'the entrapment defense "focuses on the intent or predisposition of the defendant to commit the crime," . . . rather than upon the conduct of the Government's agents'"); United States v. Makhlouta, 790 F.2d 1400, 1402 (9th Cir. 1986) ("under the law of entrapment, 'it is not the state of mind of the government agent that is important; . . . it is the "predisposition of the defendant" to commit the offense . . . that counts'"); United States v. Robinson, 763 F.2d 778, 783 (6th Cir. 1985) (district court did not err in excluding evidence proffered to establish government's motive to entrap defendant because, inter alia, government's motive was irrelevant to entrapment defense); Consistent with this line of authority, defendants are free to examine Cooley regarding his discussions with DeLeo, but absent a compelling proffer and demonstration of relevance, the Court will not permit inquiry into any instructions the government may have given Cooley or any other conversations he may have had with government officials.
E. Evidence and Argument Regarding the Defendants' Families
The government seeks to bar all evidence and argument concerning defendants' families, including the impact which conviction of the defendants might have upon their family members. The Court grants this request in part. The defendants may present testimony establishing that they have families. However, the Court will not allow such testimony to be presented in detail, nor will the Court permit any testimony regarding the possible impact which a conviction might have upon any family member.
F. Mention of Prior Prosecution Experience of Defense Counsel
The government requests that the defense be precluded from mentioning the prosecutorial experience which of defense counsel. No objection to this motion has been raised, and because such information is plainly irrelevant, the motion is granted.
G. Evidence and Argument Regarding Draft Transcripts
The government moves to bar all references to draft transcripts unless the author of a particular transcript testifies and authenticates a transcript which is inconsistent with a draft he or she had previously prepared. This motion is granted. Although the Court previously has ruled that draft transcripts are discoverable without restriction, see United States v. Finley, United States v. Finley, 1987 WL 17165 (N.D. Ill. Sept. 3, 1987) (Rovner, J.); United States v. Shields, U.S. Dist. LEXIS 8359 at *4-*8 (N.D. Ill. June 5, 1991), it has not considered the propriety of referring to such drafts at trial. In deciding that draft transcripts were subject to discovery, the Court emphasized that in practical terms, the transcripts amount to statements of the defendants. See Shields at *6-*7.
However, viewed at this stage of the litigation with an eye to their evidentiary value, the Court agrees with the government that draft transcripts must be considered statements of the individuals who prepared them. Considered in this light, the most which a draft transcript has to offer to the defendants is an inconsistency with the final version which enables them to impeach the person who prepared the transcript. However, a draft cannot be used to impeach an individual other than the one who prepared the transcript, for others might not agree with what the preparer heard and recorded originally.
Accordingly, defendants may only refer to a draft transcript in the context of impeaching an individual who prepared the draft and subsequently has prepared and authenticated a later version which is inconsistent with it. In so holding, the Court notes that, with the benefit of access to drafts, defendants have been given the opportunity to raise objections to the accuracy of transcripts. Those objections have been considered by the Court, and in instances where the Court perceived even miniscule room for reasonable persons to disagree, alternate versions of the transcript have been prepared for the jury's consideration. Moreover, as the government points out, the recordings constitute the evidence in the case, not the transcripts. Under these circumstances, there is no need for reference to drafts except in circumstances in which they supply a basis for impeachment of the appropriate government witness.
H. Evidence and Argument Regarding Other Facets of the Government's Investigation
The instant case is one of several cases resulting from a series of investigations popularly known as "Operation GAMBAT." The government moves to bar the defendants from attempting to elicit evidence concerning other investigations, be they of the defendants or of other individuals. In particular, the government seeks to preclude the defendants from referencing (1) Cooley's involvement in investigations of other persons, the results of such investigations, and what Cooley may have said to others; and (2) Internal Revenue Service investigations of the defendants, which apparently have not resulted in any charges but which, according to the government, are ongoing. The government contends that any evidence of this ilk would not be probative of the defendants' innocence or guilt in this case, and would result in a consuming mini-trial concerning matters irrelevant to the charges before the jury.
This request is well founded. Absent a particularized proffer demonstrating the relevance of inquiry into any of these areas, the Court will not permit inquiry into other investigations, including Cooley's participation in those investigations. Such an inquiry would appear to have no bearing upon the events at issue in this case, and would serve only to bog the trial down in collateral matters. See United States v. Silva, 781 F.2d 106, 110 (7th Cir. 1986) (district court did not abuse its discretion in refusing to permit inquiry into informant's participation in other investigations); United States v. Murphy, 768 F.2d 1518, 1536 (7th Cir. 1985) (district court did not abuse its discretion in limiting defense counsel's cross-examination regarding into Operation Greylord to the five cases implicated by the indictment). See also United States v. Mayomi, 873 F.2d 1049, 1056-57 (7th Cir. 1989) ("the question of whether [the government's cooperating witness] had been involved in previous FBI investigations was, at best, only marginally relevant to the central issues in this case and a sojourn into this matter would have only served to confuse the jury on those issues").
Shields suggests that if Cooley takes the stand, he is entitled to explore Cooley's participation in other investigation in an attempt to impeach him with specific instances of conduct bearing upon his veracity pursuant to Fed. R. Ev. 608(b). This contention is addressed below in subsection J.
Shields also contends that he is entitled to present evidence that despite an extensive investigation into his financial affairs, the IRS has not filed any charges against him and "has found no evidence of judicial corruption." The Court finds no relevance in this line of inquiry. Whether or not the IRS has filed charges against Shields or discovered any evidence of wrongdoing on his part has no bearing upon the charges set forth in the indictment. The IRS and the United States Attorney operate in separate domains, and the fact that one has not pressed charges against the defendants sheds no light on the merits of the charges which are being prosecuted by the other. See United States v. Price, 617 F.2d 455, 458-59 (7th Cir. 1979) (noting that "the United States Attorney does not control Internal Revenue Service investigations"). Moreover, a multitude of circumstances may explain the IRS' failure to file charges against the defendants none of which have anything to do with whether or not they committed the acts charged in this case. Cf. United States v. Biesiadecki, 1989 WL 158011 at *2 (N.D. Ill. December 1, 1989) (Rovner, J.) (excluding evidence that the customers whom defendant had allegedly defrauded had not invoked civil or administrative remedies), aff'd, 933 F.2d at 544.
I. Accusations of Uncharged Wrongdoing by One Defendant Against the Other
The government seeks to preclude each defendant from attempting to introduce evidence that the other has engaged in uncharged wrongdoing in the past. Shields disclaims any intent to do so, and has indicated he will notify the government and comply with the terms of Fed. R. Ev. 404(b) should his intent change. DeLeo is more cryptic on the subject. DeLeo suggests that if he were in possession of evidence establishing a prior (and presumably corrupt) relationship between Shields and Cooley, he would be entitled to present such evidence in order to support a defense that it was Shields, not DeLeo, who engaged in wrongdoing in this case. (See DeLeo Mem. at 9-10.) However, absent a detailed proffer of any concrete evidence along these lines which DeLeo might intend to present, the Court cannot evaluate its admissibility.
If either defendant intends to present evidence of or inquire into prior or subsequent purported misconduct by the other defendant, he must provide notice of his intent to do so no later than four business days in advance. The same requirement has been imposed upon the government; indeed, the government was required to give notice of its intent to offer Rule 404(b) evidence more than four weeks in advance of trial. Surprise forays into uncharged wrongdoing will not be tolerated of any party. To this extent, the government's motion is granted. Any further ruling as to evidence of uncharged wrongdoing must await review of the proffer and demonstration of relevance which the Court will require in the event any party gives notice of an intent to elicit such evidence.
J. Impeachment, Cross-Examination, and Argument Regarding Cooley
1. Restrictions in the event Cooley does not testify
The government seeks an order providing that in the event Cooley does not testify, the defendants be precluded from attempting to impeach him by offering evidence of misconduct in which Cooley may have engaged beyond the confines of the investigation underlying this case. This request is granted for the reasons set forth in Finley, 708 F. Supp. at 908-911, aff 'd in relevant part, United States v. McClain, 934 F.2d 822, 832-33 (7th Cir. 1991). Although Cooley appears throughout the tape recordings which will be admitted into evidence, his statements will not be admitted for their truth, but in order to establish the context of the defendants' statements and in some instances as non-hearsay verbal acts. See United States v. Rollins, 862 F.2d 1282, 1296 (7th Cir. 1988), cert. denied, 490 U.S. 1074, 109 S. Ct. 2084 (1989); United States v. Davis, 890 F.2d 1373, 1380 (7th Cir. 1989), cert. denied, 493 U.S. 1092, 110 S. Ct. 1165, 107 L. Ed. 2d 1068 (1990); United States v. Conn, supra, 769 F.2d at 422. Consequently, if Cooley were not to testify, his veracity would not be in issue and there would be no basis for impeachment.
2. Missing witness argument
The government also asks that in the event it does not call Cooley to the stand and the defendants themselves do not do so themselves, they be precluded from making the "missing witness" argument. Shields opposes this request, contending that although Cooley is available to the defense, he should be considered someone within the control of the government because he has worked closely with federal authorities and has an interest in seeing the defendants convicted. See Finley, 708 F. Supp. at 912-13.
Because it is evident that Cooley has worked closely with the government not only in the investigation which culminated in this case but in a number of other related investigations and thus has an interest in seeing the defendants convicted, the Court agrees that he has a "likelihood of bias" and is not truly available to both sides on an equal basis. The missing witness argument may have little to recommend itself to the truth-seeking task of the jury, but when a government informant or cooperating witness is, in a practical sense, within the control of one's adverse party, the argument is permissible. See United States v. Sblendorio, 830 F.2d 1382, 1394 (7th Cir. 1987), cert. denied, 484 U.S. 1068, 108 S. Ct. 1034, 98 L. Ed. 2d 998 (1988). For these reason and for the others set forth in Finley, 708 F.2d at 912-13, the Court denies the government's motion. So long as they do not belabor the issue, the defendants will be permitted to make the missing witness argument in the event Cooley does not testify. Of course, the government will be permitted to rebut the argument by pointing out the subpoena power of the defense.
3. Restrictions in the event Cooley does testify
The government has also moved to bar the defendants from attempting to impeach Cooley with evidence of prior bad acts not involving dishonesty in the event he does take the stand.
As an initial matter, the Court wishes to make clear one threshold principal which should require no elucidation; in the event the government chooses not to have Cooley testify, the defendants may not call him to the stand simply to impeach him. E.g., Finley, 708 F. Supp. at 909. So that any potential problems in this regard may be handled in advanced in the event the government does not call Cooley, the Court will direct the defendants to make an advance proffer of the relevance of his anticipated testimony if they subsequently decide to call him in their own case. See id. at 910. Such a proffer shall be tendered no less than four business days before a defendant intends to call Cooley to the stand. Assuming the Court finds the proffer adequate to establish a purpose for calling Cooley other than impeachment, the Court will require a voir dire of Cooley before he testifies in the presence of the jury.
Of course, both defendants have the right to call Cooley, and in the event he is properly placed on the stand by either the government or the defense to give substantive testimony, under the appropriate circumstances his credibility may be impeached with evidence of specific prior inconsistent statements and of prior misconduct which is probative of Cooley's character for truthfulness or untruthfulness. See McClain, 934 F.2d at 832-33; Fed. R. Ev. 608(b). Such evidence is of course subject to the restrictions of Rule 403. Further ruling upon the propriety of any potential impeachment of Cooley is held in abeyance until it appears that Cooley will actually testify at trial.
Two additional matters may be disposed of now however. The government asks that defendants be precluded from inquiring into or eliciting information regarding (1) matters between Cooley and his former clients, which are protected by the attorney-client privilege; and (2) the new identity and place of residence the government has provided to Cooley through its witness protection program.
The defendants have raised no objection to either request, and because there is no apparent relevance to this line of inquiry, the Court will preclude any inquiry into or evidence concerning these matters.
As set forth above, the government's motions in limine are granted in part and denied in part.