United States District Court, Northern District of Illinois, Eastern Division
May 6, 1999
UNITED STATES OF AMERICA EX REL. ROGER COLLINS, PETITIONER,
GEORGE WELBORN, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT. UNITED STATES OF AMERICA EX REL. WILLIAM BRACY, PETITIONER, V. RICHARD GRAMLEY, WARDEN, PONTIAC CORRECTIONAL CENTER, RESPONDENT.
The opinion of the court was delivered by: Hart, District Judge.
MEMORANDUM OPINION AND ORDER
In 1980, Frederick Lacey, R.C. Pettigrew, and Richard Holliman were
found shot to death near a viaduct south of the downtown area of
Chicago, Illinois. Following a jury trial in the Circuit Court of Cook
County, Illinois before Judge Thomas Maloney, petitioners Roger Collins
and William Bracy were found guilty of the three murders and related
charges. Collins and Bracy were sentenced to death on the murder
convictions. The murder convictions and death sentences were affirmed on
direct appeal, People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910,
478 N.E.2d 267, cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274
(1985), and postconviction relief was subsequently denied, see People v.
Collins, 153 Ill.2d 130, 180 Ill.Dec. 60, 606 N.E.2d 1137 (1992), cert.
denied, 508 U.S. 915, 916, 113 S.Ct. 2355, 124 L.Ed.2d 263 (1993). Bracy
and Collins then filed separate federal habeas corpus petitions, which
were consolidated in this court.
Petitioners raised a number of claims*fn1 in their federal habeas
corpus petitions, see United States ex rel. Collins v. Welborn,
868 F. Supp. 950, 967 (N.D.Ill. 1994) ("Collins"), all of which were held
to be an insufficient basis for relief. See id. at 967-94. Subsequent to
the state court trial, Judge Maloney had been indicted and convicted of
racketeering offenses involving the acceptance of bribes to fix cases.
See United States v. Maloney, 71 F.3d 645 (7th Cir. 1995), cert. denied,
519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996). Petitioners did not
attempt to bribe Maloney nor did he solicit a bribe from them.
Petitioners contend, however, that Maloney compensated for his
defendant-favoring rulings in cases involving bribes by being especially
hard on defendants who did not pay bribes. Petitioners also alleged that
another judge assigned to hear their post-conviction proceedings accepted
bribes to fix cases. Any claims based on corruption of the
post-conviction judge were denied on grounds of waiver. See Collins, 868
F. Supp. at 991.
Claims based on Maloney's bribetaking were not waived for failure to
raise in the state courts because the claims were based on some evidence
that was not publicly revealed until after post-conviction relief had
been denied at the trial level. See id. It was recognized that "[t]he
constitutional right to a fair trial includes the right to a trial judge
who is neutral, detached, and free from bias." Id. However, petitioners
did not contend they had sufficient facts to presume or show the
compensatory bias they had alleged. Instead, they contended that they
were entitled to additional discovery in order to attempt to prove
Maloney's bias. It was held that petitioners failed to show good cause
for further discovery and therefore the claims related to Maloney's
corruption were denied. Id.
Collins was affirmed on appeal to the Seventh Circuit. Bracy r.
Gramley, 81 F.3d 684 (7th Cir. 1996) ("Bracy I"). As to the claims
related to Maloney's corruption, the Seventh Circuit held that a claim of
being tried by a biased judge does not require a showing of a prejudicial
effect on the outcome of the trial as long as there is a showing of
either actual bias or "a possible temptation so severe that we might
presume an actual, substantial incentive to be biased." Id. at 688
(quoting Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363,
1380 (7th Cir. 1994) (en banc), cert. denied, 514 U.S. 1037, 115 S.Ct.
1404, 131 L.Ed.2d 290 (1995)). A showing of an appearance of impropriety
would be an insufficient basis for relief. Bracy I, 81 F.3d at 688. In
passing, the Seventh Circuit also noted that no precedent existed for the
proposition that accepting bribes in some cases automatically invalidated
a judge's rulings in other cases in which the judge did not take or
solicit bribes. Therefore, it was indicated that relief on such a theory
would violate Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989). See Bracy I, 81 F.3d at 689. Bracy I, 81 F.3d at 689-90,
holds that petitioners only had sufficient evidence to make out a case of
an appearance of impropriety, which would not be enough to support
relief. The Seventh Circuit believed that, at most, petitioners would be
able to show that Maloney generally favored the prosecution in cases in
which he was not bribed, but would not be able to show that such a bias
occurred in petitioners' case itself. As to petitioners' request for
further discovery that would enable them to show actual bias, the Seventh
Circuit held that petitioners had not shown good cause for discovery.
Id. at 690-91. The Seventh Circuit noted that the transcript of Maloney's
criminal trial and his record of rulings in the criminal cases in which
he presided were all of public record. The Seventh Circuit reasoned
that, since there was no indication that those records supported actual
bias in petitioners' criminal case, discovery under Rule 6(a) of the
Rules Governing Section 2254 Cases was also unlikely to yield evidence of
actual bias. Id.
The Supreme Court granted certiorari only on the issue of whether
petitioners*fn2 had made a sufficient showing of good cause for
discovery on the bias issue. In order to resolve that question, the
Supreme Court "first identifilied] the `essential elements'" of the
judicial-bias claim. Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793,
1797, 138 L.Ed.2d 97 (1997) ("Bracy II"). It held that "the floor
established by the Due Process Clause clearly requires a `fair trial in a
fair tribunal' before a judge with no actual bias against the defendant
or interest in the outcome of his particular case." Id. (quoting Withrow
v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). The
Supreme Court described petitioners' theory as follows: "Petitioner
contends, however, that Maloney's taking of bribes from some
criminal defendants not only rendered him biased against the State in
those cases, but also induced a sort of compensatory bias against
defendants who did not bribe Maloney. Maloney was biased in this latter,
compensatory sense, petitioner argues, to avoid being seen as uniformly
and suspiciously `soft' on criminal defendants." Bracy II, 117 S.Ct. at
1797. The court concluded that, "difficulties of proof aside, there is no
question that, if it could be proved, such compensatory, camouflaging
bias on Maloney's part in petitioner' s own case would violate the Due
Process Clause of the Fourteenth Amendment." Id. Referring to evidence of
pervasive bribetaking that was presented in Maloney's federal criminal
trial and various other evidence, see id. at 1798, the Supreme Court
concluded that good cause had been shown for further discovery that might
enable petitioners to show actual bias at their trial. Id. at 1799.
In a subsequent habeas corpus case involving a Cook County judge who
accepted bribes from the habeas petitioner's codefendant in the state
criminal case, the Seventh Circuit summarized the law as follows:
A criminal defendant has a federal constitutional
right to be tried before an impartial judge. The right
is not subject to the harmless-error rule, so it
doesn't matter how powerful the case against the
defendant was or whether the judge's bias was
manifested in rulings adverse to the defendant. And it
is irrelevant that [the defendant] was convicted by a
jury, a judge's role in a jury trial is obviously not
of a merely ministerial character. . . . A bribed
judge is deemed partial whatever the fact of the
matter may be.
Catrtalino v. Washington, 122 F.3d 8, 9-10 (7th Cir. 1997). Cartalino
suggests that receiving bribes in some cases is not sufficient proof of
bias in another case, "merely a suspicious circumstance that warrants
further inquiry" and requires additional proof to show actual bias in the
latter case. Id. at 10. Cartalino, though, only involved bribes by a
Following the remand from the Supreme Court, the parties engaged in
extensive discovery of the federal government's file from the Maloney
criminal prosecution, including nonpublic documents, and other
discovery, including depositions of associates of Maloney and attorneys
involved in petitioners' trial. The parties were not able to obtain a
deposition from Maloney himself; he refused to participate because he
claimed he had not received proper notice. Rather than attempting to
resolve whether Maloney's refusal to comply with the deposition notice
was justified, it was ruled that the parties would be permitted to bring
Maloney to Chicago for any necessary hearing on petitioners' claims and
any questions about lack of cooperation or invoking the Fifth Amendment
would be resolved by this court at that time. A similar ruling was made
regarding deponent William Swano's invocation of the Fifth Amendment.
Swano is a now-disbarred attorney who paid bribes to Maloney and was a
codefendant of Maloney in the federal prosecution.
After the close of discovery, the parties were provided with the
opportunity to bring summary judgment motions, although both sides
initially indicated that they did not believe the evidence would support
summary judgment. Nevertheless, both sides subsequently filed summary
judgment motions which are presently pending for ruling. Also pending is
petitioners' unopposed motion to expand the record, which will be granted
without prejudice to respondents' objections that any of the additional
evidence is inadmissible or otherwise deficient.
Rule 11 of the Rules Governing Section 2254 Cases permits the
application of the Federal Rules of Civil Procedure to the extent
consistent with the § 2254 Rules. Thus, Fed.R.Civ.P. 56 may be
applied in a § 2254 proceeding to determine whether factual disputes
exist that require a hearing. See Matta-Ballesteros v. Henman,
896 F.2d 255, 259 (7th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 209,
112 L.Ed.2d 169 (1990); Whitaker v. Meachum, 123 F.3d 714, 716 n. 2 (2d
Cir. 1997); Randle v. Scott, 43 F.3d 221, 226 (5th Cir.), cert. denied,
515 U.S. 1108, 115 S.Ct. 2259, 132 L.Ed.2d 265 (1995).
On a motion for summary judgment, the entire record is considered with
all reasonable inferences drawn in favor of the nonmovant and all factual
disputes resolved in favor of the nonmovant. Valance v. Wisel,
110 F.3d 1269, 1274 (7th Cir. 1997); Patel v. Allstate Insurance Co.,
105 F.3d 365, 367 (7th Cir. 1997). The burden of establishing a lack of
any genuine issue of material fact rests on the movant. Essex v. United
Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The
nonmovant, however, must make a showing sufficient to establish any
essential element for which he will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997).
The movant need not provide affidavits or deposition testimony showing
the nonexistence of such essential elements. Celotex, 477 U.S. at 324,
106 S.Ct. 2548. Also, it is not sufficient to show evidence of
purportedly disputed facts if those facts are not plausible in light of
the entire record. See NLFC, Inc. v. Deveom Mid-America) Inc., 45 F.3d 231,
236 (7th Cir.), cert. denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d
257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir.
1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77
(7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110
(1988). As the Seventh Circuit has summarized:
The moving party bears the initial burden of
directing the district court to the determinative
issues and the available evidence that pertains to
each. "[A] party seeking summary judgment always bears
the initial responsibility of informing the district
court of the basis for its motion, and identifying
those portions of `the pleadings, depositions, answers
to interrogatories, and admissions on file, together
with the affidavits, if any' which it believes
demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Id. at 325, 106
S.Ct. 2548 ("the burden on the moving party may be
discharged by "showing" — that is, pointing out
to the district court — that there is an absence
of evidence to support the nonmoving party's case").
Then, with respect to issues that the non-moving party
will bear the burden of proving at trial, the
non-moving party must come forward with affidavits,
depositions, answers to interrogatories or admissions
and designate specific facts which establish that
there is a genuine issue for trial. Id. at 324, 106
S.Ct. 2548. The non-moving party cannot rest on the
pleadings alone, but must designate specific facts in
affidavits, depositions, answers to interrogatories or
admissions that establish that there is a genuine
triable issue. Id. The non-moving party "must do more
than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence
of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient;
there must be evidence on which the jury could
reasonably find for the [non-moving party]." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).
Respondents argue two alternative grounds in support of summary
judgment. They contend that petitioners' claims are barred by the rule of
Teague because the claims rely on a new rule of law. Alternatively, they
contend that petitioners cannot show actual bias by Maloney. Petitioners
respond that they do not rely upon a new rule of law and further contend
that they are entitled to summary judgment because there is irrefutable
evidence of Maloney's actual bias.
Despite the fact that it was reversed, respondents repeatedly cite to
and rely upon the Seventh Circuit decision in Bracy I. Arguably, the
Supreme Court did not disagree with the Seventh Circuit as to the law
governing petitioners' claims. The Supreme Court's description of the
actual bias standard is consistent with statements in Bracy I. The
Supreme Court did not expressly address Bracy I's discussion of
appearance of impropriety. Where the two opinions disagree is that the
Supreme Court found good cause for further discovery of evidence
necessary to prove actual bias. But even assuming Bracy I's statement of
judicial-bias law, including its statement as to Teague, is still good
law, it does not help respondents. Bracy I, 81 F.3d at 689, indicates
that a holding that an appearance of impropriety exists that supports
relief would be a new rule of law barred by Teague. Petitioners,
however, do not rely on an appearance of impropriety; they claim that
Maloney was actually biased against them. There is no indication in Bracy
I, Bracy II,*fn3 or Cartalino that the actual bias rule is a new rule of
A recent district court case that expressly addresses the Teague issue
does hold that Bracy II represents a new rule of law. See United States
ex rel. Giangrande v. Roth, 1999 WL 184184 *4-5 (N.D.Ill. March 29,
1999). Giangrande, 1999 WL 184184 at *5-6, also goes on to hold that
Teague does not bar the retroactive application of Bracy II because the
Supreme Court has applied it retroactively and it is one of those rules
that goes to the concept of ordered liberty.
In Teague, the Supreme Court held that new constitutional rules of
criminal procedure would not be applied retroactively to cases on
collateral review. 489 U.S. at 300-01, 109 S.Ct. 1060. As the Court
noted, it is "often difficult to determine when a case announces a new
rule. . . . In general, however, a case announces a new rule when it
breaks new ground or imposes a new obligation on the States or the
Federal Government. . . . To put it differently, a case announces a new
rule if the result was not dictated by precedent existing at the time the
defendant's conviction became final." Id. at 301, 109 S.Ct. 1060. The
Court identified two exceptions, one of which is that "a new rule should
be applied retroactively if it requires the observance of `those
procedures that are `implicit in the concept of ordered liberty."'" Id. at
307, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 693,
91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and
dissenting in part) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58
S.Ct. 149, 82 L.Ed. 288 (1937) (Cardozo, J.))). The Court further
describes this exception by explaining that it is limited to procedures
that both "implicate the fundamental fairness of the trial" and "without
which the likelihood of an accurate conviction is seriously diminished."
Teague, 489 U.S. at 312-13, 109 S.Ct. 1060.
Courts have identified a three-step analysis for applying Teague.
First, the court must ascertain the date on which the
defendant's conviction and sentence became final for
Teague purposes. Second, the court must survey the
legal landscape as it then existed and determine
whether a state court considering the defendant's
claim at the time his conviction became final would
have felt compelled by existing precedent to conclude
that the rule he seeks
was required by the Constitution. Finally, even if the
court determines that the defendant seeks the benefit
of a new rule, the court must decide whether that rule
falls within one of the two narrow exceptions to the
Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236
(1994). Accord Winsett v. Washington, 130 F.3d 269, 275 (7th Cir. 1997);
Spreitzer v. Peters, 114 F.3d 1435, 1442 (7th Cir. 1997), cert. denied,
___ U.S. ___, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998).
In the present case, the state sentences and convictions became final
for Teague purposes when, following direct appeal in the Illinois
courts, the United States Supreme Court denied certiorari. See
Spreitzer, 114 F.3d at 1442. That date is October 21, 1985.
Bracy II clarified the standard for discovery in federal habeas corpus
proceedings, but it did not establish any new rule of constitutional law.
More than a half century before petitioners' convictions became final,
the Supreme Court had established that actual bias of the presiding
judicial official violates constitutional due process. See Tumey v.
Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ("it certainly
violates the Fourteenth Amendment and deprives a defendant in a criminal
case of due process of law to subject his liberty or property to the
judgment of a court, the judge of which has a direct, personal,
substantial pecuniary interest in reaching a conclusion against him in
his case"). See also In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99
L.Ed. 942 (1955) ("Fairness of course requires an absence of actual bias
in the trial of cases."); Margoles v. Johns, 660 F.2d 291, 297 (7th Cir.
1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1256, 71 L.Ed.2d 447 (1982)
(quoting Howell v. Jones, 516 F.2d 53, 57-58 (5th Cir. 1975), cert.
denied, 425 U.S. 945, 96 S.Ct. 1687, 48 L.Ed.2d 189 (1976)) ("They
involved situations where there was actually some incentive to find one
way or the other, i.e., financial considerations (Ward & Tumey) or
previous participation by the trying judge in the proceedings at which the
contempt occurred (Murchison)."); Bracy II, 117 S.Ct. at 1797 (citing
Tumey). The Court of Appeals' discussion of Teague in Bracy I concerned
appearances of impropriety. There is a distinction in the case law between
appearances of impropriety and actual bias. Whether certain circumstances
constitute an appearance of impropriety is a legal question. See In re
Hatcher, 150 F.3d 631, 637 (7th Cir. 1998). Whether a judge was actually
biased is a factual question. Cf. Gonzales v. Thomas, 99 F.3d 978, 986 &
n. 5 (10th Cir. 1996), cert. denied, 520 U.S. 1159, 117 S.Ct. 1342, 137
L.Ed.2d 501 (1997) (whether a juror is actually biased is a question of
fact). Teague concerns the application of new rules of constitutional
law, not the treatment of possible factual findings of bias.
Prior to 1985, it was also established that a showing of "a possible
temptation so severe that we might presume an actual, substantial
incentive to be biased," Bracy I, 81 F.3d at 688 (quoting Del Vecchio, 31
F.3d at 1380), is sufficient. See Cartalino, 122 F.3d at 11 (citing
Tumey); Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 41 L.Ed.2d 897
(1974) (quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 11
L.Ed.2d 921 (1964)) ("the inquiry must be not only whether there was
actual bias on [the judge's] part, but also whether there was `such a
likelihood of bias or an appearance of bias that the judge was unable to
hold the balance between vindicating the interests of the court and the
interests of the accused'"). Cf. Dyer v. Calderon, 151 F.3d 970, 984-85
(9th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 575, 142 L.Ed.2d 479
(1998) (implied bias of juror is a rule of law that predates the
Also, prior to 1985, it was established that a claim based on actual
bias of the judge does not require proof of a prejudicial effect in the
case. Tumey, 273 U.S. at
535, 47 S.Ct. 437. See also Chapman v. California, 386 U.S. 18, 23 & n.
8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Petitioners do not rely on a new rule of law to support their claims
that Maloney was actually biased against them. But even if Bracy II were
to be construed as a new rule of law, Teague would not bar petitioners'
claims. The impartiality of the judge presiding over a criminal
proceeding goes to the fundamental fairness and accuracy of a proceeding
and therefore is implicit in the concept of ordered liberty. See Rose v.
Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)
(impartiality of trial judge goes to the fundamental fairness of a trial
and, without such impartiality, "a criminal trial cannot reliably serve
its function as a vehicle for determination of guilt or innocence");
Giangrande, 1999 WL 184184 at *6. Teague does not bar petitioners' actual
The next question is whether petitioners have sufficient evidence of
actual bias so as to be able to withstand summary judgment. As part of
the sentencing process in Maloney's federal criminal prosecution, the
government submitted its version of Maloney's offenses (hereinafter
"Government Version") which then became part of the presentence report in
the case which was submitted by the Probation Department to the court,
with copies provided to Maloney and the government. Petitioners rely on
the following passages from the Government Version:
. . . THOMAS MALONEY's corruption began at the time
he was a criminal defense attorney paying off judges
and court personnel to fix cases-including a notorious
murder case-and continued through the time he was a
judge working as a mafia factotum in the Cook County
Circuit Court system and taking all manners of bribes
on very serious criminal cases. Thomas Maloney's
reputation as a strict prosecution-oriented judge was
not mistake. By casting this image, Maloney sought to
deflect suspicion from his criminal activity, while
simultaneously giving select desperate defendants who
knew the right people an incentive to pay him off.
. . . when he got his turn on the bench, THOMAS
MALONEY imposed a sinister system which had the dual
effect of concealing and promoting his corruption.
THOMAS MALONEY the former champion of the defendant
became one of the most ruthless judges on the bench.
Showing defendants little mercy had the effect of
diverting any conceivable suspicion from MALONEY while
at the same time giving defendants a strong motivation
to cough up big bribery dollars.
Petitioners contend that the Government Version is admissible as a
public report pursuant to Fed.R.Evid. 803(8) which provides:
Records, reports, statements, or data compilations,
in any form, of public offices or agencies, setting
forth (A) the activities of the office or agency, or
(B) matters observed Pursuant to duty imposed by law
as to which matters there was a duty to report,
excluding, however, in criminal cases matters observed
by police officers and other law enforcement
personnel, or (C) in civil actions and proceedings and
against the Government in criminal cases, factual
findings resulting from an investigation made pursuant
to authority granted by law, unless the sources of
information or other circumstances indicate lack of
Without citing any supporting case law and without making any separate
argument in their reply brief, respondents make the following contention
in their Local General Rule 12(N)(3)(b) statement,
Admit that the Government's Official Version is
correctly quoted. Deny that this document is
precedential authority. As this Court is no doubt
type of document is created for the benefit of the
federal Probation Departtnent as an aid in the
preparation of its sentencing recommendation. It is
not filed separately by the United States Attorney,
and is never a part of the public record, but is
eventually received by the district court as part of
the Probation Department's recommendation. It should
be regarded as being in the nature of a summation of
what was proved at trial, and has no particular
significance concerning events outside the trial it
describes. It is not the law, and is no substitute for
case law or the trial record in Maloney's own case. It
is likewise no substitute for an independent
determination of the ultimate issue in this case, the
resolution of which rests with this Court alone.
Rule 803(8)(C) requires that the evidence be (a) a report or statement
of a public office or agency; (b) factual findings; (c) result from an
investigation made pursuant to authority; and (d) not indicate lack of
trustworthiness. Clearly, the United States Attorney is a public office
or agency. There is no requirement that the report itself be publicly
disclosed. See Redmond v. Baxley, 475 F. Supp. 1111, 1122 (E.D.Mich.
1979). The Government Version is a factual finding in that it summarizes
the facts that the government found regarding Maloney's offenses and
related conduct. Contrary to respondents' objection, factual findings
include factually based conclusions or opinions made by the preparer of
the report based on disputed evidence. Beech Aircraft Corp. v. Rainey,
488 U.S. 153
, 162, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). The report
resulted from an investigation made pursuant to the prosecutors' legal
authority. As long as it satisfies the trustworthiness requirement, the
Government Version is admissible under Rule 803(8)(C). Cf. United States
v. Tobin, 28 F. Supp.2d 674, 677 n. 4 (D.Mass. 1998) (dictum)
(presentence report would be admissible evidence in a civil fraud action
brought by the victims of the crime).
Since the other requirements of Rule 803(8)(C) are satisfied, the
Government Version is presumed to be trustworthy and the burden is on
respondents to show that it lacks trustworthiness. Ariza v. City of New
York, 139 F.3d 132, 134 (2d Cir. 1998); Montiel v. City of Los Angeles,
2 F.3d 335, 341 (9th Cir. 1993); Cortes v. Maxus Exploration Co.,
977 F.2d 195, 201 (5th Cir. 1992); Van Houtew-Maynard v. ANR Pipeline
Co., 1995 WL 317056 *9 (N.D.Ill. May 23, 1995); In re Air Crash Disaster
at Sioux City, Iowa, on July 19, 1989, 780 F. Supp. 1207, 1212 (N.D.Ill.
1991). Respondents certainly have not met this burden and it is not even
clear that they even contend the Government Version is not trustworthy.
In any event, the Government Version appears to be trustworthy. It is
thorough and detailed and there is no indication that it is inconsistent
with the evidence regarding Maloney's crimes. It is an adversarial
document, and therefore may be slanted to support the government's
position. But that goes to the weight to be accorded the document; it does
not make it untrustworthy. Also, unlike the litigants in a civil action,
a criminal prosecutor also has a duty to do justice and therefore does
not necessarily zealously slant the facts to support a position. The
Government Version is admissible evidence.
On respondents' summary judgment motion, factual disputes must be
resolved in petitioners' favor and all reasonable inferences from the
evidence must be drawn in petitioners' favor. Therefore, on respondents'
motion, it must be accepted as true that Maloney consciously acted
against non-bribing defendants as a means of both generating bribes and
increasing the amount he could demand, as well as in an attempt to cover
up and protect the bribery that was going on. This is unlike a judge who
is "tough" on defendants as a means of getting reelected or because of
his or her philosophical views. See Bracy I, 81 F.3d at 689. Instead,
this is a situation
where a judge is motivated to rule against defendants in order to benefit
On respondents' motion, it must be assumed to be true that Maloney's
corruption was pervasive and that he was generally acting in a calculated
manner to generate additional bribery income. Petitioners point to
sufficient evidence to link this motivation to their case and support a
genuine factual dispute that Maloney was actually biased against them.
Respondents' motion for summary judgment will be denied.
On petitioners' summary judgment motion, disputes must be resolved in
respondents' favor and all reasonable inferences drawn in respondents'
favor. On petitioners' motion, Maloney's corruption cannot be assumed to
be as pervasive as was assumed to be true for purposes of respondents'
motion. Further, the parties have not yet had an opportunity to obtain
Maloney's testimony. See Fed.R.Civ.P. 56(f). On petitioners' motion, it
cannot be conclusively determined that Maloney was actually biased in
petitioners' case. That factual issue will have to be resolved following a
hearing before the court.
The next steps in this case are to prepare a pretrial order and hear
the evidence. Because the hearing is before the court, not a jury, it
need not be held on consecutive days. Because Maloney and Swano did not
fully testify at depositions and because it may be difficult to have them
available on a precise date, the court will hear their testimony prior to
the remainder of the evidence. The parties shall forthwith begin the
process of issuing writs to bring these two witnesses to Chicago to
The parties shall also engage in the preparation of a final pretrial
order that will be submitted in open court on July 20, 1999. The parties
shall submit a pretrial order limited to the following items: (a) an
agreed statement of uncontested facts; (b) exhibit lists and any
objections to exhibits; (c) witness lists and any objections to
witnesses; (d) a list of depositions to be submitted; and (e) proposed
findings of facts and conclusions of law with legal citations.
IT IS THEREFORE ORDERED that petitioners' motion to expand the record
is granted. Respondents' motion for summary judgment is denied.
Petitioners' motion for summary judgment is denied. In open court on July
20, 1999 at 11:00 a.m., the parties shall submit an original and one copy
of a topbound, final pretrial order containing the items set forth in