The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Defendants Scott Lewis ("Lewis") and Vernon Williams ("Williams") are charged in three counts of a four-count Indictment with: (1) conspiring to possess with the intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2 (Count I); (2) possession with the intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 846 and 21 U.S.C. § 2 (Count II); and (3) knowingly possessing a firearm in furtherance of, and carrying a firearm during and in relation to, drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A).*fn1 Before the Court are various motions in limine. For the reasons stated, this Court reserves ruling on the Government's Motion to Preclude an Entrapment Defense with respect to Lewis and grants it with respect to Williams, grants the Government's Motion Concerning Recorded Conversations, grants in part and denies in part the Defendants' Motion for Production of the CI, grants the Government's request to require the Defendants to make a pretrial proffer of the CI's expected testimony and its request to conduct a voir dire of the CI, reserves ruling on the Government's request to restrict Defendants' impeachment of the CI, denies Williams' Motion Concerning the Video Arrest of Defendants on January 4, 2007, and reserves ruling on Williams' Motion Concerning the Alleged Statements of his Co-Defendant Scott Lewis.
Sometime in September 2006 Lewis was introduced to a confidential informant ("CI"). In December 2006 the CI approached Lewis with the idea of robbing a Mexican drug organization. The CI told Lewis that he would have to meet an associate of his, a disgruntled drug courier for the drug organization, to get more details. Thereafter, the CI introduced Lewis to an undercover agent ("UCA") posing as the disgruntled drug courier. At a later date, Lewis introduced the UCA to Williams. Throughout the investigation, numerous phone conversations and in-person meetings were recorded between the Defendants and the CI and the Defendants and the UCA. On January 4, 2007, Lewis and Williams were arrested for conspiring to conduct an armed, home-invasion robbery of the Mexican drug organization.
A. Government's Motion to Preclude an Entrapment Defense
The government moves this Court to preclude Lewis and Williams from asserting an entrapment defense at trial. The Government asserts that Lewis and Williams will not be able to set forth sufficient prima facie evidence to demonstrate a viable entrapment issue because they will be unable to demonstrate that they lacked the predisposition to commit the crimes charged in the Indictment. Alternatively, the Government requests that if this Court allows Defendants to argue an entrapment defense at trial, the Government be allowed to admit Lewis and Williams' previous convictions that are relevant to whether they had a predisposition to commit the crimes charged in the Indictment.
1. Preclusion of Entrapment Defense
The defense of entrapment requires proof of the government's inducement of the crime and of the defendant's lack of predisposition to engage in the criminal conduct. See Mathews v. United States, 485 U.S. 58, 63 (1988). As a prerequisite for presenting the defense of entrapment to the jury, a defendant must produce sufficient evidence upon which a rational jury could infer that he was entrapped into committing the crime charged. See Id.; United States v. Teague, 956 F.2d 1427, 1434 (1992). Only if a defendant meets this threshold burden is he entitled to present the question of entrapment to the jury for resolution. See Mathews, 485 U.S. at 63. The defendant's initial burden "requires presenting more than a scintilla of evidence," although the evidence need "not be so substantial that, if uncontroverted, it supports a finding of entrapment as a matter of law." U.S. v. Blassingame, 197 F.3d 271, 280 (7th Cir. 1999).
"The issue of whether there is sufficient evidence of entrapment to support submission of that defense to a jury typically arises after the evidence has been received at trial." Santiago-Godinez v. United States, 12 F.3d 722, 727 (7th Cir. 1993). "[W]hether or not an entrapment defense is available to a defendant is typically not amenable to pretrial resolution." Id. This is because whether entrapment occurred is a factual issue, "the defense of which is intertwined with the issue of intent and is often based on credibility determinations, which are traditionally reserved for jury resolution." Id. "A pretrial determination of the sufficiency of the evidence... is the exception rather than the rule." United States v. Johnson, 32 F.3d 304, 307 (7th Cir. 1994). The sufficiency question may be decided on a pretrial motion "only when it is clear that the evidence to be offered by the defendant can, under no interpretation, be considered sufficient to sustain his or her burden in proving the entrapment defense." Id.
Here, the Government asserts that an entrapment defense is unavailable to Lewis and Williams as a matter of law because they cannot establish a lack of predisposition. In assessing a defendant's predisposition to commit the offense in question, the following factors are relevant: (1) the character and reputation of the defendant; (2) whether the government first suggested the criminal activity; (3) whether the defendant engaged in the crime for profit; (4) whether the defendant demonstrated a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion offered by the government. See U.S. v. Higham, 98 F.3d 285, 290 (7th Cir. 1996).
In response to the Government's motion, Lewis submitted an ex parte pretrial proffer of evidence supporting his entrapment defense. The following facts were submitted by Lewis as part of his pretrial proffer.
Lewis met the CI in September of 2006 at his neighbor's house. Over the next several months, the CI approached Lewis and asked Lewis to help him purchase illegal narcotics. Lewis declined. The CI then enticed Lewis to use cocaine. Lewis refused until the CI began to boast about his gang affiliation. Lewis became intimidated and scared, he felt pressure to use cocaine with the CI and he gave in. During subsequent meetings with the CI, Lewis and the CI regularly engaged in the consumption of cocaine.
At some point, the CI approached Lewis and told Lewis that he would pay him to find distributors of cocaine and guns.The CI also advanced Lewis a half an ounce of cocaine to sell for profit. The agreement was that Lewis would sell five hundred dollars worth of cocaine to give to the CI and keep the rest of the cocaine for himself. Lewis was unable to come up with the five hundred dollars to pay the CI. When Lewis could not pay the CI, the CI threatened to cause Lewis bodily harm. The CI told Lewis that he and his "associates" would collect the debt. After making these threats, the CI told Lewis that an alternative to paying the five hundred dollars was that Lewis could assist the CI in the robbery of some drug dealers the CI knew. Lewis refused.
Over the next few days, the CI kept asking Lewis to participate in the robbery and said he would teach Lewis what to do. Lewis refused. After some time passed, Lewis realized he would not be able to obtain the funds to repay the CI. Lewis was afraid that he would be physically harmed if he did not come up with the ...