US v. Finley, No. 87 CR 364-3

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtPhilip Parenti, Chicago, Ill., for Clarence McClain
Citation705 F. Supp. 1297
PartiesUNITED STATES of America, Plaintiff, v. Morgan FINLEY, et al., Defendants.
Docket Number87 CR 364-4.,No. 87 CR 364-3
Decision Date29 November 1988

705 F. Supp. 1297

UNITED STATES of America, Plaintiff,
v.
Morgan FINLEY, et al., Defendants.

Nos. 87 CR 364-3, 87 CR 364-4.

United States District Court, N.D. Illinois, E.D.

November 29, 1988.


705 F. Supp. 1298
COPYRIGHT MATERIAL OMITTED
705 F. Supp. 1299
Ira Raphaelson, Michael Shephard, U.S. Atty's Office, Chicago, Ill., for plaintiff

Philip Parenti, Chicago, Ill., for Clarence McClain.

Donald Bertucci, Chicago, Ill., for Perry Hutchinson.

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

I. INTRODUCTION

Defendants Clarence McClain and Perry Hutchinson are two of the individuals charged in the FBI's "Operation Incubator" investigation into corruption in the award of public contracts by the City of Chicago. The factual background is set forth more fully in the Court's separate opinion concerning the substantive motions to dismiss brought by these and other defendants. This opinion addresses McClain's motion to dismiss the indictment for governmental misconduct, McClain's motion for disclosure of transcripts of the grand jury proceedings, Hutchinson's motion to dismiss the indictment for pre-indictment publicity, and McClain's motion to dismiss the indictment for pretrial publicity. For the reasons stated below, defendants' motions are denied.

II. GOVERNMENTAL MISCONDUCT

In support of his motion to dismiss the indictment for governmental misconduct, McClain argues that the government engaged in outrageous conduct with respect to its use of an informant, that the government selectively prosecuted McClain, and that the government made prejudicial statements to the media.

The standards which a defendant must meet in order to justify the dismissal of an indictment for government misconduct are strict. First, the misconduct complained of must be egregious. "Assuming that no independent constitutional right has been violated, governmental misconduct must be truly outrageous before due process will prevent conviction of the defendant." United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983). The Seventh Circuit has "not yet found conduct which was sufficiently outrageous to warrant the invocation of a due process bar." United States v. Shoffner, 826 F.2d 619, 626 (7th Cir.) (citations omitted), cert. denied, ___ U.S. ___, 108 S.Ct. 356, 98 L.Ed. 2d 381 (1987). See also United States v. Valona, 834 F.2d 1334, 1343 (7th Cir.1987); United States v. Bruun, 809 F.2d 397, 409 (7th Cir.1987); United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983).

Furthermore, the defendant must specifically demonstrate prejudice resulting from the misconduct:

A district court exceeds its powers in dismissing an indictment for prosecutorial misconduct not prejudicial to the defendant.... Dismissal of the indictment is appropriate only if it is established that the violations substantially influenced the grand jury's decision to
705 F. Supp. 1300
indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.

Bank of Nova Scotia v. United States, ___ U.S. ___, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988). See also United States v. Wilson, 715 F.2d 1164, 1169 (7th Cir.), cert. denied, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983); In re Perlin, 589 F.2d 260, 266 (7th Cir.1978); United States v. Dorfman, 532 F.Supp, 1118, 1138 (N.D.Ill. 1981).

With these principles in mind, the Court turns to McClain's allegations.

A. Use of Informants

1. Michael Raymond. Much of the evidence gathered by the government in this case apparently was obtained from Michael Raymond, also known as Michael Burnett. According to the indictment, Raymond had been employed since about December, 1983, by Systematic Recovery Services, Ltd. ("SRS") to obtain public contracts from the City of Chicago. Raymond became a government informant in July, 1984, after he was arrested on weapons charges, and he purported to continue acting on behalf of SRS. He met with a number of public officials and private individuals who claimed an ability to influence public officials. He allegedly made payments to a number of these individuals, including the defendants, and those payments form the centerpiece of this case.

Raymond reportedly has a history of criminal convictions and possible involvement in murders and other crimes for which he has never been formally charged. McClain argues that the government's use of Raymond as an informant, knowing that Raymond had a "violent and manipulative background," constituted misconduct so serious as to warrant dismissal of the indictment. Specifically, McClain argues that the government "unleashed" a murder suspect on the defendants, that the government failed to cooperate with local law enforcement agencies investigating Raymond's activities, that the government used Raymond to generate new crimes, and that the government failed to disclose to the grand jury that Raymond was suspected of murder. McClain argues that even if none of these acts in itself justifies dismissal, taken together they constitute such shocking conduct as to violate due process and necessitate dismissal. See United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973).

Much of McClain's argument is disposed of by the fact that Raymond was allegedly involved in the scheme since the beginning of 1984, before he became a government informant. He was thus not "unleashed" on the defendants; they voluntarily associated with him.

Furthermore, undercover investigations by the government are a "recognized and permissible means of investigation," United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973), and the informants used will, of necessity, rarely be model citizens. See, e.g., United States v. Kaminski, 703 F.2d 1004, 1009-10 (7th Cir.1983); United States v. Myers, 692 F.2d 823 (2d Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983). "In the pursuit of crime the Government is not confined to behavior suitable for the drawing room.... The creation of opportunities for crime is a nasty but necessary business." United States v. Murphy, 768 F.2d 1518, 1529 (7th Cir. 1985). For these reasons, it is not clear in this circuit that dismissal would be an appropriate remedy even if the government's conduct were outrageous. The Supreme Court has held simply that it might "some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Russell, 411 U.S. at 432-33, 93 S.Ct. at 1643. "The Seventh Circuit has also left the possibility open, although we have never reversed a conviction on this ground." United States v. Swiatek, 819 F.2d 721, 725 (7th Cir.1987).

McClain relies on such cases as United States v. Valdovinois-Valdovinois, 588 F.Supp. 551 (N.D.Cal.1984), rev'd on other grounds, 743 F.2d 1436 (9th Cir.), cert.

705 F. Supp. 1301
denied, 469 U.S. 1114, 105 S.Ct. 799, 83 L.Ed.2d 791 (1985), and United States v. Ramirez, 710 F.2d 535 (9th Cir.1983). These cases, however, establish only that dismissal is appropriate where the government involvement was so fundamental that the government itself "created" or "manufactured" the crime. See United States v. Belzer, 743 F.2d 1213, 1217 (7th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 788, 83 L.Ed.2d 781 (1985); Valdovinois-Valdovinois, 588 F.Supp. at 556. Where, as here, the allegations raised by the defendant do not rise to such a level, dismissal is unwarranted

The asserted lack of cooperation between the FBI and local law enforcement agencies provides little help to McClain. The existence of such cooperation, or lack thereof, is simply irrelevant to the indictment. Cf. United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir.1984) ("individuals not personally the victims of illegal government activity cannot assert the constitutional rights of others"). Furthermore, the government's alleged failure to disclose to the grand jury that Raymond was a murder suspect does not warrant dismissal.1 At most, this information may have affected Raymond's credibility, although it would not be admissible at trial for that purpose. See United States v. Hughes, 658 F.2d 317, 320 (5th Cir.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). However, defendant offers no rationale or authority for dismissing the indictment as a remedy. He relies on Department of Justice and American Bar Association standards which state that the government should present to the grand jury evidence that directly negates guilt, United States Attorneys Manual § 9-11.334, or "tend(s) substantially to negate guilt," ABA Standards for Criminal Justice 3-3.6. The allegedly withheld materials do not rise to these standards, because they relate, at best, to matters which are collateral to defendant's guilt or which provide only the slightest evidence negating defendant's guilt.

Thus each of McClain's arguments concerning the government's use of Raymond as an informant fails to establish a ground for dismissing the indictment. Furthermore, the mere stockpiling of these arguments does not bring the government's alleged misconduct to such an outrageous level as to warrant dismissal.

2. Bradley Carr. Two of the charges against McClain are allegations of tax fraud. According to McClain, "much of the information used by the government as a basis for the charges could have been derived from a Milwaukee lawyer, Bradley Carr." Defendant then erects a chain of "could haves" in an attempt to raise the possibility that Carr inappropriately delivered information concerning defendant to the government. These "could haves" stem from the following facts: that McClain discussed business ventures with Carr; that Carr was cooperating with the government in a separate case; that the government advised Carr not to be retained by...

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13 practice notes
  • Packer v. the Superior Court of Ventura County, No. B229369.
    • United States
    • California Court of Appeals
    • November 28, 2011
    ...have concluded that the defendant “bears a heavy burden of showing actual bias and prejudice.” ( United States v. Finley (N.D.Ill.1988) 705 F.Supp. 1297, 1307, and cases cited therein.) Bias cannot be presumed. ( Beck v. Washington, supra, 369 U.S. at p. 558, 82 S.Ct. 955 [“ ‘While this Cou......
  • US v. Finley, No. 87 CR 364.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 29, 1988
    ...the indictment. These types of charges have repeatedly been held proper for joinder. See United States v. Anderson, 809 F.2d 1281, 1288 705 F. Supp. 1297 (7th Cir.1987); United States v. Wilson, 715 F.2d 1164, 1171 (7th Cir.), cert. denied, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983)......
  • Brown v. State, No. S13G1612.
    • United States
    • Supreme Court of Georgia
    • June 2, 2014
    ...cases as recognizing a constitutional requirement that an indictment be returned by an unbiased grand jury.” United States v. Finley, 705 F.Supp. 1297, 1307(IV) (N.D.Ill.1988); see, e.g., United States v. Burke, 700 F.2d 70, 82 (2d Cir.1983) (“When a person is brought before the grand jury ......
  • U.S.A v. Sessa, OPINION & ORDER 92-CR-351(ARR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 25, 2011
    ...in which law enforcement officers "created" or manufactured" the crime with which these defendants are charged. United States v. Finley, 705 F.Supp. 1297, 1300 (N.D.Ill.1988). The criminal organization, defendants' membership in it, and defendants conduct of the affairs of that organization......
  • Request a trial to view additional results
13 cases
  • Packer v. the Superior Court of Ventura County, No. B229369.
    • United States
    • California Court of Appeals
    • November 28, 2011
    ...have concluded that the defendant “bears a heavy burden of showing actual bias and prejudice.” ( United States v. Finley (N.D.Ill.1988) 705 F.Supp. 1297, 1307, and cases cited therein.) Bias cannot be presumed. ( Beck v. Washington, supra, 369 U.S. at p. 558, 82 S.Ct. 955 [“ ‘While this Cou......
  • US v. Finley, No. 87 CR 364.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 29, 1988
    ...the indictment. These types of charges have repeatedly been held proper for joinder. See United States v. Anderson, 809 F.2d 1281, 1288 705 F. Supp. 1297 (7th Cir.1987); United States v. Wilson, 715 F.2d 1164, 1171 (7th Cir.), cert. denied, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983)......
  • Brown v. State, No. S13G1612.
    • United States
    • Supreme Court of Georgia
    • June 2, 2014
    ...cases as recognizing a constitutional requirement that an indictment be returned by an unbiased grand jury.” United States v. Finley, 705 F.Supp. 1297, 1307(IV) (N.D.Ill.1988); see, e.g., United States v. Burke, 700 F.2d 70, 82 (2d Cir.1983) (“When a person is brought before the grand jury ......
  • U.S.A v. Sessa, OPINION & ORDER 92-CR-351(ARR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 25, 2011
    ...in which law enforcement officers "created" or manufactured" the crime with which these defendants are charged. United States v. Finley, 705 F.Supp. 1297, 1300 (N.D.Ill.1988). The criminal organization, defendants' membership in it, and defendants conduct of the affairs of that organization......
  • Request a trial to view additional results

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