U.S. v. Warner

• Decision Date: 17 August 2005
• Docket Number: No. 02 CR 506.,02 CR 506.
• Citation: 396 F.Supp.2d 924
• Parties: UNITED STATES of America, Plaintiff, v. Lawrence E. WARNER and George H. Ryan, Sr., Defendants.
• Court: U.S. District Court — Northern District of Illinois

396 F.Supp.2d 924

UNITED STATES of America, Plaintiff, v. Lawrence E. WARNER and George H. Ryan, Sr., Defendants.

No. 02 CR 506.

United States District Court, N.D. Illinois, Eastern Division.

August 17, 2005.

COPYRIGHT MATERIAL OMITTED

Zach Fardon, Joel R. Levin, Laurie J. Barsella, Patrick M. Collins, United States Attorney's Office, Chicago, IL, for Plaintiff.

Edward Marvin Genson, Genson and Gillespie, Chicago, IL, Winston & Strawn, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

PALLMEYER, District Judge.

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.

DISCUSSION¹

I. 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.)² 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, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).)³ 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, 104 S.Ct. 819 (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, 104 S.Ct. 819. 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)⁴ (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.

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, 104 S.Ct. 819. 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,⁵ 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.)⁶ 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.)⁷ 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...