The opinion of the court was delivered by: JAMES B. ZAGEL
This is a case of a defense counsel without much of a defense to money laundering/structuring charges who tried to follow the old maxim that when the facts and the law are against you, then attack the prosecution. The problem with this tactic is that, in its purest form, it is quite outside the law. A generation ago Justice Walter Schaefer once lamented the "increasing tendency in criminal cases to try some person other than the defendant and some issue other than his guilt." Sears v. Romiti, 50 Ill. 2d 51, 277 N.E.2d 705 (1971). His observation holds true today.
On some occasions police and prosecutorial conduct is relevant to that issue, but often the only thrust of the defense is this: the prosecution was not nice or could have done it better and so the jury ought to acquit, whether or not guilt has been proved beyond reasonable doubt. One might excuse this tactic if a judge permits its use but, in this case, I did not and, in defiance of my rulings, Stanley Hill forged ahead, and at times sought to mislead the Court.
He was warned I would sanction him, and I do so in this order which adjudges him guilty of contempt of court.
The bill of particulars is this.
The government called Kevin Moss to testify as an expert about the secreting of cash from illegal transactions. The government did not, however, ask this witness to examine and reach conclusions about the particular transactions in this case. The government used a different witness to do that analysis. Mr. Hill wished to attack the government for its failure to ask Mr. Moss to do this work. What relevance this has to the one issue before the jury is quite unclear, and Mr. Hill asked a series of questions on this point. I sustained the objections.
Q. Now, has the government asked you as a result of your expertise to look at the transactions involving Marvin Rux?
A. No. Ms. Scott: Judge, we've been over this.
The Court: Objection is sustained.
Q. [Mr. Hill]: I mean, you have been involved in other cases where you've been asked to look at financial transactions to see whether they were legal or not, haven't you?
Ms. Scott: Objection, Judge.
Not much later, Mr. Hill asked virtually the same question to which the objection had been sustained.
Q. Let me just ask you this one last question. Have you been asked to review any transactions involving Marvin Rux, sir?
Ms. Scott: Judge, objection.
The Court: Are you including--
Mr. Hill: Last Question. Any transactions involving Marvin Rux, the defendant in this case.
The Court: Come to the side.
Mr. Hill: I'll withdraw the question.
I find that the asking of the question and its withdrawal was a deliberate attempt to evade the prior ruling and raise in the mind of the jury a question that they ought not to consider. It is not repaired by withdrawing the question.
The insincerity of the tactic is made clear by what happened at the side bar. I expressed my concern that what Mr. Hill was doing was of no use to his client because the prosecutor could respond by offering, in the presence of the jury, to have Mr. Moss conduct the examination of the Rux transactions. At the end of the conference, the colloquy was:
The Court: The government is not on trial here. Whether the government asks a witness to do something or doesn't ask a witness to do something doesn't amount to a hill of beans. We all come in here with the same subpoena power and the same ability, at least in theory, to get in evidence, and I don't want lawyers standing up in closing argument and saying, well, if they thought it was so important why didn't they ask, and they respond to you by saying, if Mr. Hill thought it was so important why didn't Mr. Hill ask, and then we have a dispute over not the defendant's guilt but which lawyers the jury likes the most.
Mr. Hill: Judge, I'd like to make a request at this point.
The Court: Now you may make your statement.
Mr. Hill: I'd like to make a request at this point. I'd like to have him review the real estate transactions in this case and make a statement as to whether or not there's money laundering.
The Court: Your request is granted.
Mr. Hill: Thank you. But the fact is Mr. Hill did not want Mr. Moss to make an examination of the Rux papers. At the end of Mr. Moss's examination, this occurred.
Mr. Hill: . . . what I'd like to do . . . is that I'd like to ask him, with all of this experience and all of these investigations he's been involved in and all of these reportings and reports that he's done . . . why he wasn't requested to look at this transaction and give his opinion on that . . . since he's the expert in the area. . . .
Then Mr. Lopez (representing another defendant) said he was not joining in the request for Mr. Moss to examine documents because "I'm pretty sure what the outcome would be, I would move for a severance." Without dissent, Mr. Safer (the prosecutor) said, "I gather . . . nobody at this point is asking Mr. Moss to examine . . ." In fact, Mr. Hill never sought Mr. Moss's services because, like Mr. Lopez, he knew what the outcome would be. Mr. Hill never had any purpose other than to pursue a line to which objections had been sustained and, in fact, misrepresented to the Court that he did want Mr. Moss to examine records.
The government called Roger Salter, a certified financial planner, who worked in an office with defendant Marvin Rux. Both Mr. Rux and Mr. Hill knew Roger Salter before trial. Mr. Hill wanted Mr. Salter to testify about photographs of various awards and placques given to Mr. Rux and displayed on Mr. Rux's office walls. Why this had to be done is not entirely clear since Mr. Rux testified on his own behalf. But the problem with Mr. Hill's conduct with respect to this matter was the insincerity of his justifications for the evidence. Rather than state his true purpose, Mr. Hill said that the state of the office displayed in photographs was relevant to the testimony of Terrence Ferguson, an accomplice who testified for the government. A witness's descriptions of a place where conversations occurred may be relevant. Mr. Hill made this point, "Some of the conversations in which Ferguson claims he participated in happened in this very office. . . . it's the photograph of the facts." But a photograph of what the eye sees is of no relevance here. Mr. Hill knew as did everyone in the courtroom that Terrence Ferguson is and was sightless.
The expert the government did call instead of Kevin Moss was one William Maloney. Mr. Hill wanted to impeach Mr. Maloney who received poor grades in college (particularly in accounting) about twenty years ago. There is nothing unreasonable about what Mr. Hill wanted to do. It was within my discretion to admit the evidence or to refuse it. And the matter was considered over a period that consumed nine pages of transcript. The ruling, and its rationale, was stated in an oral opinion consuming another three pages of transcript. In part I said:
The Court: If you wish to challenge whatever statement he made about the amount of time he had in college you may do so. If you wish to challenge what his grades were in various courses, you may not do so. And I'm cautioning you, Mr. Hill, that I don't want you to ask a question which conveys any information about his grades.
Part of it has to do with the remoteness in time. We are talking about stuff that is more or less one generation in the past, and that makes a difference, but that would not in my mind suffice to keep it out in this particular case. What keeps it out in this particular case is that this is not, as I view his testimony, a case involving accounting principles in any respect. . . .
What you have here is the rough equivalent of a police officer getting on a witness stand, as they used to do many, many years ago, and telling a jury how somebody ran a numbers bank; . . . of a police officer talking about how narcotics importation operates.
It's quite clear that the only training this individual could have gotten in the field in which he is testifying already is the training he got in the course of working for his employer . . . .
With respect to Ferguson, if all that is going to be said here . . . is that Ferguson hoodwinked Maloney, I doubt very much that his academic performance would have anything to do with his ability to judge the credibility of Ferguson. And . . . this jury heard Ferguson and will decide for itself whether Ferguson was telling the truth, and if Ferguson was lying, then they're going to have to throw out a lot of what Maloney has to say anyway.
. . . The fact that Maloney didn't do very well in his accounting courses is [no] indicia of how well he would do in buying a bill of goods from Ferguson.
I left open only the possibility that a defense expert (who was to be Mr. Rux) might show that academic excellence was relevant and, if that occurred, "then I would permit . . . recall [of] Mr. Maloney for . . . further cross-examination."
What was Mr. Hill's response to this ruling?
Q. Was there a time when you had to matriculate at Wright Junior College, sir?
Q. Would you tell the ladies and gentlemen of the jury why.
Mr. Safer: I object, your honor.
The Court: The objection is ...