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UNITED STATES v. BERGER

January 16, 1998

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES R. BERGER, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge.

OPINION

The Governor's videotaped deposition.

The sequel.

And like any competent sequel, a little factual background information is necessary.

I.

Defendant has been charged with sixteen counts of mail fraud and with one count of misapplication of government property. During the midst of the trial, a juror became ill. Rather than making use of the last available alternate juror, the Court and the parties agreed to recess the trial until the juror was able to return to Court.*fn1

A problem with this plan arose in that Defendant had anticipated calling Illinois Governor Jim Edgar as a witness the next day. The Governor had a long planned three week official trade mission to India and, therefore, would only be available to testify the following day — his final day before departure. In order to alleviate this conflict, the parties stipulated to allow the Governor to be deposed via videotape pursuant to Federal Rule of Criminal Procedure 15(a) and by that means, would preserve the Governor's deposition for use at trial at Defendant's discretion. However, until Defendant decided to play the videotape to the jury, the videotape was to remain in the possession of the reporting service which had videotaped the Governor's deposition and was to be treated as a sealed matter.*fn2 Furthermore, members of the public were prohibited from attending the Governor's deposition.

After the taping of the Governor's deposition, the Court met with the parties in chambers. At that meeting, the Court broached the issue of the public's access to the transcript and videotape should Defendant decide to offer it as evidence in his case-in-chief. The parties and the Court agreed that once played to the jury, both the transcript and the videotape itself would be open to the public for inspection and copying.

Upon that backdrop, we begin the sequel.

II.

After the trial resumed, Defendant did, in fact, decide to offer the Governor's deposition as evidence in his case-in-chief, and thus, it was played to the jury. During the morning break, counsel for Defendant approached the Court and inquired as to the Court's intentions with respect to keeping the videotape under seal. Defendant's counsel related that the Governor's staff had requested that the videotape be placed back under seal once it was viewed by the jury. At a meeting in chambers, Defendant asserted that it was also his position that the videotape be placed back under seal once it had been presented to the jury.

Upon returning to open Court (but out of the jury's presence) counsel for the Governor asked to be heard and moved the Court for a protective order which placed the videotape back under seal once it was played to the jury. Alternatively, counsel for the Governor requested the Court to stay our ruling on the issue ...


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