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U.S. v. WARNER

August 17, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
LAWRENCE E. WARNER and GEORGE H. RYAN, SR., Defendants.



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Defendants Lawrence E. Warner and George H. Ryan, Sr. are charged in a 22-count second superseding indictment with (1) conspiring to use the resources of the State of Illinois for their personal and financial benefit and for the benefit of Ryan's family members, the Citizens For Ryan political campaign committee, and various political and business associates, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(d); and (2) devising a scheme to defraud the people of the State of Illinois and the State of Illinois of money, property, and the right to the honest services of Ryan and other State of Illinois officials, in violation of the federal mail fraud statute, 18 U.S.C. §§ 1341, 1346. Ryan is separately charged with making materially false, fictitious, and fraudulent statements during several FBI interviews in violation of 18 U.S.C. § 1001(a)(2); obstructing and endeavoring to obstruct the Internal Revenue Service in the correct reporting of income and the collection of taxes in violation of 26 U.S.C. § 7212(a); and filing materially false tax returns in violation of 26 U.S.C. § 7206(1). Warner is separately charged with extortion under the Hobbs Act, 18 U.S.C. § 1951; money laundering, 18 U.S.C. § 1956 (a)(1)(B)(i); and structuring currency transactions in violation of 31 U.S.C. §§ 5324(a)(3) and (d)(2).

Currently before the court are the parties' motions in limine and Ryan's and Warner's objections to the government's Santiago proffer. For the reasons stated here, the motions are granted in part and denied in part. DISCUSSION*fn1

  1. Ryan's Motions

  In his motions, Ryan seeks limited closure of voir dire questioning of the jurors; an order directing the government to sentence cooperating witnesses; exclusion of certain "other acts" evidence; and an order barring the jury from reviewing the indictment during deliberations. The court addresses each motion in turn.

  A. Ryan's Motion for Limited Closure of Voir Dire

  Ryan argues that voir dire must be closed in this case to prevent potential jurors from being "inhibited from giving truthful responses to controversial questions . . . by fear of the publicity that will be given to their responses." (Ryan Closure Mem., at 1.)*fn2 Ryan insists that jurors may be questioned on "[h]ighly sensitive and inflammatory issues," including Ryan's "stance and actions regarding abortion, gay rights, gun control, capital punishment, the criminal justice system and other hot-button political issues." (Id. at 4.) He believes that jurors "may be uncomfortable giving candid answers to questions of a controversial and sensitive nature if they anticipate that their answers will be attributed to them and widely disseminated by the media." (Id.) In Ryan's view, the appropriate remedy is to bar the media from attending individual voir dire, but to provide the press with a transcript of those proceedings, redacted to eliminate the potential jurors' names. (Id. at 5.)

  The government disagrees, noting that the Supreme Court has emphasized the value of open trials, including voir dire: The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.

 (Gov't Ryan Resp., at 2 (quoting Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 508 (1984).)*fn3 The government urges that juror privacy can be adequately protected in this case by concealing the identities of the jurors and by closing voir dire to particularly sensitive questions at the request of individual jurors. (Gov't Ryan Resp., at 5.) See also Press-Enterprise, 464 U.S. at 512 (endorsing the practice of requiring prospective jurors to make an affirmative request for private questioning so "the trial judge can ensure that there is in fact a valid basis for a belief that disclosure infringes a significant interest in privacy.")

  The Chicago Tribune objects to both positions, arguing that there is no basis for closure or for concealing jurors' identities. At least at this time, the court agrees. The presumption of openness in criminal trials may be overcome "only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise, 464 U.S. at 510. See also United States v. Peters, 754 F.2d 753, 760 (7th Cir. 1985). Ryan concedes that closure is not warranted in this case solely because it has generated extensive pretrial publicity. (Ryan Closure Mem., at 4 (citing ABC, Inc. v. Stewart, 360 F.3d 90, 102 (2d Cir. 2004)) ("The mere fact that [a] suit has been the subject of intense media coverage is not . . . sufficient to justify closure. To hold otherwise would render the First Amendment right of access meaningless; the very demand for openness would paradoxically defeat its availability.") Nor is the court persuaded that closure is appropriate based on Ryan's conjecture that jurors may feel uncomfortable answering questions truthfully. "[T]he entire voir dire relies on honest and candid answers to questions of court and counsel," and the court sees no reason to presume dishonesty here. Peters, 754 F.2d at 762.

  Ryan characterizes the media attention as "extraordinarily hostile" and urges that the media's presence "will have a chilling effect on prospective jurors while they are answering questions on sensitive issues that could be embarrassing or stigmatizing." (Ryan Closure Reply, at 4*fn4 (citing United States v. King, 140 F.3d 76, 82 (2d Cir. 1998).) In King, the district court closed voir dire to the media because prospective jurors were going to be questioned regarding their racial attitudes towards the "extremely controversial" defendant, African-American boxing promoter Don King. Id. at 79-80. King had been the subject of undeniably hostile media coverage, including an HBO program suggesting he might be a "Villain" or a "Devil," and inflammatory newspaper headlines such as "Move over John Gotti, there's a new `Teflon Don,'" comparing King to the convicted head of a major crime family who had won earlier acquittals. Id. The Second Circuit affirmed the district court's decision, finding that the judge had thoroughly analyzed the matter and had reasonably concluded that closure of voir dire was the proper approach:
In light of the widespread and largely negative publicity concerning King and the racial tensions heightened by some aspects of that publicity, he [the judge] was entitled to conduct individual juror questioning in the absence of the press.
Id. at 82.

  Unlike King, this case does not involve any "racially charged" issues, nor has the pretrial publicity been so widespread and negative as to raise concerns about juror candor. Media attention to this case arguably waned since the court granted Ryan's request to delay the trial by six months to accommodate his attorney's schedule. More recently, Mr. Ryan himself gave a well-publicized interview to a local television network. Whatever attention flowed from that interview, Ryan could not have expected it would be negative. The court is satisfied that any chilling effect occasioned by the media presence may be remedied by allowing prospective jurors to be questioned in private upon their own request. See Press-Enterprise, 464 U.S. at 512. As for anonymity, there has been no showing of any threats, jury tampering, or "other evils affecting the administration of justice" that justify withholding jurors' identities from the media. In re Globe Newspaper Co., 920 F.2d 88, 97 (1st Cir. 1990). See also 28 U.S.C. § 1863(b)(7) (allowing jury lists to be anonymous when "the interests of justice so require.") Ryan's motion for limited closure of voir dire is therefore denied. The court expects to conduct voir dire questioning of potential jurors individually in a smaller (presumably less intimidating) courtroom with the media present. The court will, however, instruct the press not to disclose the jurors' identities until the end of trial; in the court's experience, this is any event the media's standard practice.

  B. Ryan's Motion for an Order Directing the Government to Sentence Cooperating Witnesses

  Ryan next seeks an order requiring the government to proceed with the sentencing of some six individuals expected to testify in this case: Andrea Coutretsis, Alan Drazek, Scott R. Fawell,*fn5 Richard Juliano, Arthur "Ron" Swanson, and Donald Udstuen. Ryan claims that the government is holding a "sword" over each witness's head "to motivate him in his testimony." (Ryan Sentence Reply, at 1.)*fn6 Specifically, Ryan believes that "[t]he only explanation for the failure to sentence is that the government best exerts pressure in the presentence period when it can use the enticement of a motion for downward departure as ready leverage." (Ryan Sentence Mem., at 6.)*fn7 As the government notes, however, there is nothing unusual about delaying a cooperating witness's sentencing until after he or she testifies at trial. Indeed, Judge Holderman raised, sua sponte, the issue of delaying the sentencing of Coutretsis until after the trial in this case so that he could assess "the value that was provided by Ms. Coutretsis in her actions that are the subject of the motion [for downward sentencing departures]." (Ex. A to Gov't Ryan Resp., at 2.) This court has had the unpleasant experience of having imposed a lenient sentence on a defendant from whom the government expected cooperation but who ultimately reneged; because sentence had already been imposed, this defendant obtained a reward he did not earn. See United States v. George, No. 00 CR 589, 2002 WL 1727334, *2 (N.D. Ill. July 24, 2002), aff'd 363 F.3d 666, 670 (7th Cir. 2004). See also United States v. Reed, 227 F.3d 763, 766 (7th Cir. 2000) (noting that a principal witness at the defendant's first trial, which ended in a mistrial, refused to testify at a second trial because he had already been sentenced under his plea agreement).

  To be sure, a cooperating witness "often has a greater interest in lying in favor of the prosecution rather than against it, especially if he is still awaiting his own trial or sentencing." Washington v. Texas, 388 U.S. 14, 22-23 (1967). The witness's potential bias or motive to lie, however, may be fully explored on cross-examination. See, e.g., United States v. Nelson, 39 F.3d 705, 709 (7th Cir. 1994) (through cross-examination, "the jury was made well aware of the witness' bargain and was able to evaluate its impact on the witness' credibility.") The court finds no basis for Ryan's assertion that the government has engaged in "inappropriate and legally unsupported manipulation of the sentencing process," particularly where the trial itself was delayed for several months at Ryan's request. (Ryan Sentence Reply, at 3.) Nor is the court concerned that defense cross-examination will be insufficient to protect Ryan's rights in this case. Ryan's motion for an order directing the government to sentence cooperating witnesses is denied. C. Ryan's Motion to Bar Admission of "Other Acts" Evidence

  Ryan seeks to bar admission of certain "other acts" evidence relating to: (1) the state's lease of a warehouse in Pana, Illinois for use by the Illinois Department of Corrections; and (2) the state's contract with Comguard, a company owned in part by Ryan's brother. The government has not yet submitted a response to this motion and the court therefore reserves ruling at this time.

  D. Motion to Bar the Jury from Taking the Indictment into the Jury Room

  Ryan and Warner both ask that the jury not be permitted to review the indictment or take it into the jury room during deliberations. Both Defendants object that the indictment is a one-sided and prejudicial recitation of the government's summary of evidence it intends to introduce at trial. (Ryan Indict. Mem. ¶ 3; Warner Omnibus Mem., at 14.)*fn8 As such, Defendants argue, the document is "tantamount to having the prosecution re-present closing argument on each and every pattern act and count of the indictment after jury deliberations have begun." (Warner Omnibus Mem., at 14.) In Defendants' view, the parties can draft jury instructions to adequately apprise the jury of the issues it will need to decide. (Ryan Indict. Mem. ¶ 15 (citing United States v. Palmeri, 630 F.2d 192, 202 (3d Cir. 1980) ("We think special interrogatories were properly employed to decrease the likelihood of juror confusion and to aid the jury in concentrating on each specific defendant, and the charges against him, rather than incriminating one potentially innocent defendant solely on the basis of his association with the others.")) Defendants insist that this approach has the added benefit of "avoid[ing] the risk that the jury will view facts or allegations unsupported by evidence at trial." (Id. ¶ 17; Warner Omnibus Mem., at 16.)

  The government argues that in complex cases such as this, courts favor providing a copy of the indictment to the jury to serve as a framework of the charges on which they must decide guilt or innocence. (Gov't Ryan Resp., at 10 (citing United States v. Scott, 37 F.3d 1564, 1577 (10th Cir. 1994) ("[c]onsidering the number of overt acts charged and the number of defendants, it seems entirely appropriate that the court not only read the indictment to the jury but allowed the jury to have a copy during its deliberations.")) To the extent the indictment includes allegations not supported by the evidence at trial, the remedy is to redact those portions. (Gov't Ryan Resp., at 10.) Any additional prejudice, the government claims, may be resolved by instructing the jury that the allegations in the indictment are not evidence. (Id. at 11-12.) Cf. United States v. Garcia, 562 F.2d 411, 417 (7th Cir. 1977) (recognizing that "[t]o the degree an uninstructed jury considers the [indictment], there is a real possibility that a charge leveled by a grand jury composed of its peers will weigh in the petit jury's balance on the side of guilt.")

  The court agrees with the government that this complex case involves too many counts (22) to withhold the indictment from the jury in its entirety. That said, the court appreciates Defendants' concerns that the indictment is inflammatory and prejudicial in its present form. Accordingly, the government is directed to prepare redacted version of the indictment that simply sets forth the charges in this case for review by defense counsel. Defendants insist that it is "wishful thinking" to suppose that three sets of lawyers will be able to agree on appropriate language. (Warner Reply, at 12; Ryan Indict. Reply, at 5.)*fn9 The court is confident, however, that counsel in this case will reach a reasonable agreement on this issue, and is prepared to enter rulings, to the extent the parties are unable to agree.

  II. Warner's Motions

  In addition to his motion to exclude the indictment from the jury during deliberations discussed above, Warner also seeks to bar any references to insider trading; to bar references to awards of low digit license plates absent evidence of a government quid pro quo; and to bifurcate evidence and/or to sever his trial from that of Defendant Ryan.

  A. Warner's Motion to Bar References to Insider Trading

  In 1996, the Secretary of State's Office (the "SOS Office") began an initiative to switch to a "digital licensing" system such that all State of Illinois automobile and truck drivers' licenses would be created and maintained through digital technology. (Indictment, Count 2 ¶ 47.) The indictment alleges that Warner obtained "material non-public information" that the SOS Office planned to award the digital licensing contract to Viisage Technologies. (Id. Count 2 ¶ 52.) Armed with that information, Warner allegedly purchased Viisage stock and advised another SOS Office employee to do the same. (Id.) Warner contends that the stock purchase allegations improperly intimate that he committed the uncharged crimes of securities fraud and insider trading. (Warner Omnibus Mem., at 2; Gov't Warner Resp., at 3 (conceding that Warner is not charged with either violation).)*fn10 See Manning v. Buchan, 357 F. Supp. 2d 1036, 1050 (N.D. Ill. 2004) (excluding evidence of uncharged crimes where there was a "distinct danger" that the jury "would unfairly disregard its obligations and find against [the defendant] on the issue of liability based on improper grounds.") He also objects that the government's Santiago proffer omits the fact that "Warner's trading activities do? not correspond with key events for Viisage in terms of obtaining business from the Illinois Secretary of State." (Id. at 3.)

  The government views Warner's argument as an improper motion to strike paragraph 52 of the indictment. The government also claims that Warner's stock purchase is probative of both (1) the nature and extent of Warner's access to, and participatory status in, Ryan's public office; and (2) Warner's confidence in his ability to influence the award of SOS contracts. (Gov't Warner Resp., at 3.) In the government's view, the fact that Warner purchased Viisage stock before Viisage was awarded the contract demonstrates that he had improper influence in the award of contracts and significant access to Ryan. (Id. at 3-4.) Warner disagrees, arguing that "[t]he most the evidence will show is that over the course of an almost 2 year period before and after the award of the Illinois contract to Viisage, Mr. Warner had confidence in the company as reflected in his purchase of company stock." (Warner Reply, at 4.)

  The fact that Warner bought stock is not, in and of itself, evidence of Warner's influence in the SOS Office or his access to Ryan and may serve to prejudice the jury. For that reason, the court is inclined to exclude the information, but will reserve a final ruling on that matter until trial. Such evidence would ...


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