United States District Court, Northern District of Illinois, Eastern Division
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on the Government’s motions in limine and Defendant Robert Ranjel’s (Ranjel) pro se motions. For the reasons stated below, the Government’s motions in limine are granted, and Ranjel’s motions are stricken.
I. Government’s Motions in Limine
A. Motion to Re-renumber and Strike Allegation
The Government moves to renumber the Counts in the indictment, removing one Count relating to a co-defendant, in order to avoid confusion by jurors. The Government also moves to strike language from Count One of the indictment alleging that more than 5 kilograms of cocaine were involved in the conspiracy and instead include the phrase: “a quantity of a mixture and substance containing a detectable amount cocaine.” (BE 346: 2). Ranjel indicates that he has no objection to the re-numbering of the Counts, but that he objects to striking allegations regarding quantity of cocaine. (DE 354:1). The only justification for such objection is that Ranjel believes that the Government is attempting to lessen its evidentiary burden by striking the drug quantity. (DE 354:2). However, the amount of drugs involved in a conspiracy is not an element of the conspiracy. See United States v. Walker, 673 F.3d 649, 659 (7th Cir. 2012)(stating that “quantity is not an element of a conspiracy to possess drugs for distribution”); United States v. Nunez, 673 F.3d 661, 663 (7th Cir. 2012)(stating that “[t]o persuade a jury to convict on a single conspiracy charge the government need prove only an agreement” and that “[q]uantity is not an element”); Unites States v. Gilmer, 534 F.3d 696, 704 (7th Cir. 2008)(stating that in regard to a conspiracy claim, “[d]rug quantity is not an element of the charged offense in the indictment” and that the “[q]uantity of drugs sold or possessed goes to the severity of the sentence, not the existence of the crime”). Ranjel has not provided any meritorious reason to retain the language relating to the drug quantity in Count One, and the Government has shown that Ranjel will not be prejudiced by striking such language. Therefore, the Government’s motion to renumber the counts and strike language as to the drug quantity is granted.
B. Motion to Recall Witnesses
The Government moves for leave to permit certain witnesses to be recalled to testify to events in an episodic manner. The Government contends that evidence will be presented through law enforcement officers who have knowledge of multiple discrete events. The Government further proposes that after direct examination as to each discrete episode, Ranjel should be permitted to cross-examine the witness fully about any testimony presented on direct examination. Ranjel does not oppose the motion, and the motion is granted. (DE 354: 2).
C. Motion as to Admissibility of Recorded Conversations
The Government seeks a ruling as to the admissibility of recorded conversations (CI Recordings) between Ranjel, an individual identified as “Individual A, ” and confidential informants (CIs). Ranjel argues that the CI Recordings are not admissible because there is no evidence that the CIs consented to have their conversations recorded. The Government is correct that although an evidentiary foundation for a recorded conversation can be established by the testimony of a participant in the conversation, that is not the only way to lay a foundation for such evidence. See United States v. Collins, 715 F.3d 1032, 1036 (7th Cir. 2013)(quoting United States v. Fuentes, 563 F.2d 527, 532 (2d Cir. 1977) for the proposition that “[t]here is no requirement that the tapes be put in evidence through the person wearing the recorder” and finding that authentication of recorded conversations through testimony of government agents was sufficient). The Government indicates that through the testimony of Government agents, it will present eyewitness testimony indicating that the CI Recordings accurately reflect the conversations that were witnessed. The Government also explains that Government agents will testify that the CIs agreed to cooperate with the Government and have their conversations recorded. The Government has adequately explained how it will lay a proper foundation for the admission of the CI Recordings. Therefore, the motion to admit the CI Recordings is granted.
D. Motion to Preclude Efforts at Jury Nullification
The Government moves to preclude Ranjel from presenting improper argument, evidence and inquiry designed to elicit jury nullification. Specifically, the Government requests that Ranjel be barred from argument or questioning regarding: (1) the motivation for investigating or prosecuting this case, (2) the punishment Ranjel may face if convicted, and (3) outrageous government conduct. Ranjel indicates that he does not oppose the restriction as to the motivation for investigating or prosecuting this case, but he does oppose the limitation as to outrageous government conduct. (DE 354: 3-5).
The Government is seeking to preclude jury nullification based on what is deemed under the law to be allegations of outrageous government conduct consistent with the Seventh Circuit precedent holding that “the defense of outrageous government conduct” is not “available in this circuit.” United States v. Sherman, 268 F.3d 539, 550 (7th Cir. 2001). The Government seeks to exclude evidence or argument relating to alleged false testimony by Government agents or Government witnesses. Ranjel argues that there may be outrageous government conduct in this case that may be relevant. Ranjel contends that a former Aurora police officer has made allegations of misconduct as to certain law enforcement agents involved in this case. Ranjel claims that such evidence is relevant to show bias, interest, and/or motives by Government witnesses to testify falsely against Ranjel. Ranjel also argues that there is evidence that his brake lines were cut on his vehicle and that evidence of misconduct by Government agents may be related. The Government correctly points out that the record as it stands is devoid of evidence showing that the Government or its witnesses were somehow involved in the cutting of Ranjel’s brake lines, and Ranjel cannot simply present such accusations at trial in the absence of evidence. The Government also indicates that it currently does not intend to introduce evidence of flight through law enforcement officers, which further lessens the relevance of any testimony that might be offered by the former Aurora police officer. Ranjel has not presented a good faith basis to ...