United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Defendant, Derrick Smith, moves for a new trial  pursuant to Federal Rule of Criminal Procedure 33. For the reasons stated herein, the motion is denied.
Smith was indicted on April 10, 2012, on a single count of corruptly soliciting a bribe in violation of 18 U.S.C. § 666. On April 3, 2014, a superseding indictment was issued alleging two counts: corruptly soliciting a bribe in violation of 18 U.S.C. § 666 and attempted extortion in violation of 18 U.S.C. § 1951. After an eight-day trial, the jury returned a verdict against Smith on both counts of the superseding indictment. This Court entered judgment of guilty on the verdict on June 10, 2014.
Federal Rule of Criminal Procedure 33 allows the Court to vacate any judgment and grant a new trial if the interest of justice so requires. The Court will grant a new trial if there is a reasonable possibility that the alleged trial error will affect the jury's verdict. See United States v. Gonzalez, 319 F.3d 291, 297 (7th Cir. 2003). Such motions rarely are granted and "only in those really exceptional cases." United States v. Reed, 986 F.2d 191, 192 (7th Cir. 1993).
Smith moves for a new trial, arguing the Court erred in four ways at trial: (1) in denying Smith the right to present and entrapment defense; (2) in presenting deficient jury instructions regarding intent; (3) in denying Smith the ability to present text message evidence relating to entrapment; and (4) in denying Smith's motion in limine to exclude audio recordings as inadmissible hearsay in violation of Smith's right to cross-examination under the Sixth Amendment. The Court will discuss each alleged error in turn.
1. Denial of Smith's Right to Present an Entrapment Defense
Smith argues that this Court erred in granting the Government's motion in limine to bar Smith from seeking an entrapment defense without first submitting a proffer. The Government asserts that Smith waived the defense.
"Entrapment occurs when the government coerces a defendant into committing an illegal act he was not otherwise predisposed to commit." United States v. McGill, 754 F.3d 452, 457 (7th Cir. 2014) (citing United States v. Russell, 411 U.S. 423, 434-35, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Pallido, 656 F.3d 754, 758 (7th Cir. 2011)). "An entrapment instruction is warranted if the evidence would permit a jury to find that the defendant was not predisposed to commit the crime and that the government induced him to do so. Although more than a scintilla of evidence of entrapment is needed before instruction on the defense becomes necessary, the defendant need only point to evidence in the record that would allow a rational jury to conclude that he was entrapped." McGill, 754 F.3d at 457 (internal citations omitted).
This Court granted the Government's pretrial motion to have Smith submit a proffer of the evidence in support of an entrapment defense. Smith presented a proffer. (Dkt. 146). In response to the proffer, the Government presented evidence that Smith received $7, 500 from a liquor store, which the Government expected to use to demonstrate ample predisposition. Thereafter, Smith informed the Court that he did not intend to offer an entrapment defense. Smith's abandonment of the entrapment defense is further indicated by his failure to propose an entrapment instruction in either of his two proposed jury instruction submissions. (Dkt. 149, 165). In light of Smith's proffer and later abandonment of the defense, this Court did not commit error warranting retrial.
Smith relies on United States v. McGill, 754 F.3d 452 (7th Cir. 2014), the most recent Seventh Circuit ruling relating to entrapment issue. McGill was found guilty of possession and distribution of child pornography after the FBI informant, Elliott, pestered McGill for weeks before McGill allowed him to bring a USB drive to his apartment to copy child pornography from his computer. By all accounts Elliott was McGill's only friend. The Court explained that "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal" and that "unwary innocents" are not limited to those whose lives are free of crime. Id. at 458. The Seventh Circuit reversed the district court's refusal to give the entrapment instruction. The district court found no evidence of predisposition, but refused the instruction because the defendant had not pointed to evidence of inducement. The Seventh Circuit held that exploitation of friendship can constitute proper inducement and the record provided sufficient basis for a rational jury to infer that Elliott. Id. at 458, 459.
However, the evidence presented at Smith's trial was significantly different than in McGill and Smith's reliance on that case is misplaced. In McGill, there was substantial evidence of hesitation and resistance by McGill. Indeed, the evidence there showed that the informant, Elliott, would steer innocent conversations on unrelated subjects back to child pornography and when Elliott pestered McGill into providing him with child pornography, McGill cancelled, claiming he was sick. Only after Elliott prodded him did McGill allow Elliott to bring a flash drive over to McGill's home to copy his collection. Here, there is not similar evidence of resistance by Smith nor was there constant coaxing and prodding by the informant. The informant in Smith's case was not a close friend, but only a campaign acquaintance. The informant certainly was not Smith's sole confidant. Smith did not express a similar sort of reluctance to participate in the bribery scheme and the informant's repeated questions regarding timing and ...