US v. Bailey
| Decision Date | 04 November 1987 |
| Docket Number | No. 87 CR 276.,87 CR 276. |
| Citation | 689 F. Supp. 1463 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | UNITED STATES of America, Plaintiff, v. Forest BAILEY, et al., Defendants. |
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James Ferguson, Asst. U.S. Atty., Mark Pollack, Chicago, Ill., for plaintiff.
Carlton E. Odim, Chicago, Ill., for Forest Bailey.
Michael Goode, Lincolnwood, Ill., Walter Jones, Curiel & Jones, Chicago, Ill., for Patrick McClurkin.
Jeffrey Steinbeck, Genson, Steinbeck & Gillespie, Chicago, Ill., for Aaron Long.
Elliott Samuels, Chicago, Ill., for Harrison.
Donald Bertucci, Chicago, Ill., for Perry Hutchinson.
William Mansker, Chicago, Ill., for Walter McCullins.
Marianne Jackson, Chicago, Ill., for Williams.
Isaih Gant, Chicago, Ill., for Janis McWilliams.
Gerald J. Collins, Chicago, Ill., for Ben Israel.
William Theis, Chicago, Ill., for Margaret Neely.
Tom Peters, Chicago, Ill., for Cornell Stokes.
Chris Goodman, Chicago, Ill., for Anthony Miller.
Miriam Miquelon, Chicago, Ill., for Harold Willis.
George Howard, Chicago, Ill., for Allen Griffin.
John Theis, Chicago, Ill., for Clinton Donald.
Edwin Byrd, Chicago, Ill., for Carl Langley.
Roberta Samotny, Chicago, Ill., for Sharon Long.
June Fournier, Hillside, Ill., for Joyce Jones.
Robert B. McGee, Chicago, Ill., for Leonard Cade.
Sheldon Nagelburg, Chicago, Ill., for Curtis Thompson.
Earl Williams, Chicago, Ill., for Janice Richardson.
Louis Myers, Chicago, Ill., for Steve Johnson.
Everett McLeary, c/o Dellsher Investment Co., Chicago, Ill., for Norman Cross.
Shelly Kulwin, Chicago, Ill., for Sadie Davis.
Vester Van, Chicago, Ill., for Ronald Lewis.
Roosevelt Thomas, Chicago, Ill., for James Hope.
A grand jury has jointly indicted twenty-nine individuals who allegedly participated in a scheme to defraud various insurance companies through the staging of fake car-accidents and the subsequent submission of fraudulent personal-injury and wage-loss claims to those insurance companies. The forty-eight count indictment charges that pursuant to this scheme these individuals conspired to commit an offense against the United States in violation of 18 U.S.C. § 371 (Count One), committed mail fraud in violation of 18 U.S.C. § 1341 (Counts Two through Thirty-Five), conducted the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) (Count Thirty-Six) and/or made false material-statements on their income-tax returns in violation of 26 U.S.C. § 7206(1) (Counts Forty-Six through Forty-Eight). The indictment further charges that the defendants Forest Bailey, Perry Hutchinson, Patrick McClurkin and Aaron Long subsequently conspired to obstruct justice by endeavoring to ensure that certain individuals would not disclose information regarding the car-accident scheme to either federal investigators or the grand jury itself in violation of 18 U.S.C. §§ 371 and 1503 (Counts Thirty-Seven through Thirty-Nine). Finally, defendants Sadie Davis, Carl Langley, Anthony Miller, Janice Richardson and Joyce Jones are indicted for allegedly making false material-declarations to the grand jury in violation of 18 U.S.C. § 1623.
In the course of the last few months, the defendants have filed a number of pretrial motions. The court has ruled orally on each of the motions and, pursuant to its practice in large criminal cases such as this, issues this opinion which summarizes the oral rulings.1 In case the contents of this opinion differ materially from the court's oral rulings, this opinion controls. Consequently, after the issuance of this opinion, the parties should immediately raise with the court any proposed amendments they may have to this written order. Once the trial of this matter begins, the court will consider this to be the court's final order to which any further objections will have been waived.
Pursuant to Federal Rule of Criminal Procedure 17(b), the court on October 2, 1987 authorized the defendant Margaret Neely to issue subpoenas at government expense.
The court granted this motion and ordered the government to direct government agents to preserve all "notes" as defined in Hutchinson's motion.
Discovery Requests
Hutchinson moved for an order compelling the government to produce certain information. Because Hutchinson represented on the face of his motion that an agreement between him and the government could not be reached regarding the subject of his motion,2 the court addressed the merits of his motion and ruled in the following manner.
The court ordered the government to produce all tapes and transcripts of any tape-recorded conversations relating to the matters alleged in the indictment by Wednesday, October 21, 1987. The court further ordered the government to designate by that same date any parts of the tapes which the government does not intend to offer in evidence. The defendants had until Wednesday, October 28, 1987 to make their alternate designations, propose alternative transcriptions and file motions in limine regarding those same tapes.
Hutchinson also requested production of any tapes which the government intends to use as impeachment evidence and are related to another case in which he is a defendant, United States v. Finley, et al., No. 87 CR 364 (N.D.Ill.). In its response to that request, the government stated that the Finley tapes are not "relevant" to this case within the meaning of Federal Rule of Criminal Procedure 16(a)(1)(A) and hence are not properly discoverable even though those tapes might be used to impeach the defendant should he choose to testify. This court rejected the government's argument and ordered the government to produce any tapes and transcripts related to Finley which the government might use to impeach Hutchinson. The test for relevance of course is whether the evidence tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The court considers impeachment evidence, i.e., evidence attacking the credibility of a witness, to be "relevant" because that evidence aids the jury in evaluating the probative value of other evidence offered to affect the probability of the existence of a consequential fact. McCormick, Evidence § 29, at 58 (2d ed. 1972); 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 40105, at 401-28 (1985). The Seventh Circuit on at least one occasion has stated that impeachment evidence is admissible as probative and hence relevant. United States v. Stone, 471 F.2d 170, 172 (7th Cir.1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973). Based on the foregoing, the court concludes that statements of the defendant which the government will use to impeach the defendant are discoverable under Rule 16.
Although the government did not raise this argument, this court's order could be interpreted as placing on the government the impossible burden of predicting what the defendant will testify to should he take the stand. The court, however, does not expect the government to be a soothsayer in this case. Instead, the court merely is ordering the government to produce statements of the defendant which it presently believes might be used for impeachment purposes. See United States v. Bailleaux, 685 F.2d 1105, 1114 (9th Cir.1982) (). But see United States v. Gleason, 616 F.2d 2, 25 (2d Cir. 1979) (), cert. denied, 444 U.S. 1082, 100 S.Ct. 1037, 62 L.Ed.2d 767 and 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). Because the defendant cannot review the statements at issue, Rule 16 can serve its intended purpose only if the government takes a broad view of what is relevant for purposes of that rule.3 See Bailleaux, 685 F.2d at 1114.
The court having ordered the government to produce both the tapes and transcripts of both the Bailey and the Finley tapes, Hutchinson probed for more. He asserted in open court that not only should the court require the government to produce the final transcripts; the court should also order production of any preceding drafts of those transcripts in the government's possession. Hutchinson argues that, because the tapes at issue are so inaudible, he should be able to show the jury that the government went through numerous drafts of the transcripts before the government settled on a final set. In support of his argument, Hutchinson cites Judge Rovner's recent opinion in Finley in which she ordered the government to produce any transcripts, whether draft or final, of any recorded conversation in which a defendant participated. United States v. Finley, et al., No. 87 CR 364, slip op. at 5 (N.D.Ill. September 3, 1987) available on WESTLAW, 1987 WL 17165.
This court, however, finds Judge Rovner's analysis unpersuasive in this case and rejects Hutchinson's broad-based request. This court's analysis begins with Rule 16(a)(1)(A), which in relevant part states the following:
Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; the substance of any...
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U.S. v. Wilson
...methods used in furtherance of the enterprise's conduct. (Indictment ¶¶ 3, 4). I am unpersuaded by the precedent of United States v. Bailey, 689 F.Supp. 1463 (N.D.Ill.1987), to which the Defendant cites. In Bailey, the Illinois district court held that a bill of particulars was appropriate ......
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US v. Sims, 92 CR 166.
...the discovery of statements made by co-conspirators. United States v. Roberts, 811 F.2d 257, 259 (4th Cir.1987); United States v. Bailey, 689 F.Supp. 1463, 1470 (N.D.III. 1987). The court orders production of the requested statements only as required by the Jencks Act. 18 U.S.C. § 3500 7 A ......
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US v. Lobue
...("a defendant in a noncapital case is not entitled to lists of prospective government witnesses"). Accord, United States v. Bailey, 689 F.Supp. 1463, 1471 (N.D.Ill. 1987). If the government discloses impeachment evidence before trial, it has met its Brady obligation so long as the defendant......
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U.S. v. Segal, 02 CR 0112.
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