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James Lewis Extortion Case File

James Lewis appeals court case file

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Todd Feurer
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7K views316 pages

James Lewis Extortion Case File

James Lewis appeals court case file

Uploaded by

Todd Feurer
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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RECORD ON APPEAL In the Gnited States Court of Appeals For the Seventh Circuit No,_84-2011 wre i8e- a0 UNITED STATES OF AMERICA JAMES W. LEWD eCEIVED ave2? a) JyNNINGHA at cl i, runt CUNT cou a WAITED STATES OF ” THOMAS F. STR CLERK Appeal from the United States District Court for the NORTHERN District of _11L1wars ase ee ey NORTHERN DISTRICT OF ILLINOIS UNITED STATES OF AMERI | I, H, STUART CUNNINGHAM, Clerk of the United States District Court for the Northern District of Hlinois, do hereby certify to the United States Court of Appeals, for the Seventh Cir- cuit, that the documents submitted herewith and annexed hereto are the original papers filed and entered of record in my office, on the dates designated in the List of Documents, and to- gether with a true copy of docket entries as they appear in the official dockets in this office. U.S.A. VS. JAMES W. LEWIS, 82 OR 897-1. Complete record on appeal consisting of one volume of pleadings in above captioned case. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the seal of ‘the aforesaid Court at Chicago, Ilinois, this 12th 1984, day of J01¥» H, Stuaer CUNNINGHAM, Clerk ay ye Cho eel / By; . _ Eilenore Duf Aff Deputy Clerk y y a = 12/15/82 * s2ya2ve2 2 12/27/82 * 12/20/02 ja (CR-82-00897-01 LIST OF DOCUMENTS paws 2 eR-e2-0080-01 us-u-Lewrs roceeotwos = Seve—eeetared—to-JUBGE-NORDBERO—tDkt sd teAeOrOn iE Srpetermes Tansecser aenenved mtowe eer eeee ores © ‘sera0res). Filed indictment (Dkt‘d 12/26/82) Order bail to stand in this couse es set in CR-2-00097 (Bond set by Magistrate in New York to stand as bond in instance.) (CHIEF JUDGE MCGARR) (Dkt“d 12/2762). = Filed criminel desianation for > Motion for preservation of evidence filed (HOT#1? (Count 4) (Dkt’d 01/10/83). Mark the beginning of '» rc XE starting on 12/28/ (Okt 01/10/83) Notion “pre-trial motion) filed (MOT#2) (Count 1) (Motion for early return date for subpoenas duces tecum.) (Dkt’d 01710783) » Mark the beginning of » potential excludable reriod of tyre XcE starting on 12/28/82 ((In re MOTFPH on 12/28/82) > (Dk 01/10/83) Arraignment held (Count 1) (JUDGE NORDBERG) (Dkt‘d 01/40/83) + Defendant’s first aprearance (Dkt’d 01/10/83). jefendant enters ples of not guilty (Count 1)” (JUDGE NORDBERG) (Dkt’d 01/10/83), 2.04 conference to be held by or on 01/03/85 (JUDGE NORDBERG) (Dkt’es 01/10/83)» Pretrial actions to be filed by 01/31/83 (Dk "ds 12/28782)« e R-@2-00097-01 01/21/83 02/24/83 10 a2 12 12 a3 a 43 13 1“ 14 15 15 16 16 Page 3 cR-82-008°"-01 Us-v-Lewrs PROCEEDINGS Status hearing held (JUDGE NORDBERS) (Dkt’d 02/28/83). Pre-trial motions to be filed by 02/28/83 (Count 1) (JUDGE NORDBERG) (Dke'es 02/28/83). Governaent to ansuer by 03/14/83 (JUDGE NORDBERG) (Dkt’d Stetus hearing set for 03/25/83 @ 2100 PH (Defendant is to held in custody at the Chicago Metropolitan Correctional fenter until March 25+ 1983.) (JUDGE NORDBERG) (Dkt'd 02/28/83) + Exeludable delay besed on finding the ends of Justice ‘Served by continuance bean on 12/28/82 and ended on 02724783 (Pursuant. to 1815161 (h)(8)(B)(1i).) (JUDGE NORDBERG) <(Dkt"d 02/28/83). Excludable delay based on finding the ends of Justice ‘Served by continuence twsan on 12/28/82 and ended on 02/24/83 (Pursuant to title 1813161(h)(B)(B)Civ) +) (JUDGE NORDBERG) (Dkt’d 02/28/83) + Motion for extension of time to file pre-trial motions ‘files (HOTA) (Count 1) (Motion for leave to file Bdditionsl motions.) (Dkt’d 02/28/83). Mark the bewinning of @ potential excludable period of ture XE starting on 02/24/63 ((In re MOTFXT on 2/24/83)) (Dkt’d 02/28/83). Notion. (rre-trial motion) filed (MOT#S) (Count 1) (Motion ‘to reduce notice af intention to use other crises» wrongs+ or acts evidence.) (Dkt'd 02/28/83). Mark the besinnind of a rotential exciudable reriod of ture XE starting on 02/24/63 ((In re MOTFPH on 2/24/83)) (Dkt’d PAGE 4 R-#2-00897-01 cR-82-008°" us-v-Lewrs PROCEEDINGS 02/28/83). 17 Notion far discovers/insrection filed (MOT#s) (Count 1) (Hotion for discovers and for production of documents.) (Oke 02/28/83) 17 Mark the Bedinning of » sotential excludable reriod of ture XE starting on 02/24/83 ((In re MOTFDE on 2/24/83)) (Dkt’d 02/28/83) + 18 Motion (rre-trial motion) filed (HOTS?) (Count 1) (Hotion +) (Dkt'd_ 02/28/83)« 18 potential excludabie reriod of ture XeE starting on 02/24/63 (In re HOTFPM on 2/24/83)) (Dkt’d 02/28/83) 19 Motion for discovers/insrection filed (HOTS) (Count 1) (iotion for discovers of evidence favorable to deendant.) (Dkt"a 02/28/83). 19 Mark the besinning of » rotential excludable reriod of tyre X-E starting on 02/24/83 ((In re MOTFDI on 2/24/83)) (Dkt’d 02/28/85) + 02/28/83 20 —Hotion to produce evidence favorable to defendant filed {HOT#) (Count 1) (Motion for Production of work rarers of handwriting exrerts.) (Dkt’d 03/01/83). 20 Mark the edinning of @ potential excludable period of ture KE starting on 02/28/63 ((In re MOTFFE on 2/28/83)) (Dkt’d (03/01/83) + 03/01/83 21 Sheba heertngheid—tAtmthe—neaueetof the—nentietriatdUDGE 21 Tetei~dete setter Oe oE eH tCeunt BOE 21 Mewpend—en_ree—heaei-aehtone—vet—torpPrtiloimitititi 03/17/83 28 Motion (rre-triel motion) filed (MOT#12) (Count 1) (Hotion to prevent trarsfer to Seringfield.) (Dkt’d 05706783) 0318/03 22 Springfields) (Dkt’d 03/24/83). 22 Mark’ the bedinnina of potential excludable period of tys XE starting on 03/18/03 ((In re MOTFPH on 3/18/83)) (Dkt’d 03/24/83). 23 Motion. (wre-trial motion) hearing set for 03/22/83 @ 9130 ‘aM (HOT#1O) (Defendant is to be made available for an Inderendent aedical examination at the HCC facility.) (GUDGE NORDBERG) (Dkt"d 03/24/83). 03/22/83 24 Motion (ere-trial motion) hearing held » ‘on 02/24/83 and ended on 05/23/83 (re discovers of evidence Favorable to defendant) (Dee's 06/20/83)» 06/22/83 35 fe to try established bu the District's Seedy Trisl Plan.) (JUDGe NORDBERG) (Dkt"d 06727785) « 35 Order case res ORDERED pursuant. ta local General cartioned cause be and the sang a calendar or the Task Force.) 05/27/83) o7/14/03 36 Order #4 to the Task Force: Strickens) (JUDGE 07/19/83 37 Status hearing fexet to 09/16/83 @ 2100 PM (CHIEF JUDGE Os 07/21/80) + . 09712783 38 fring held (CHIEF JUDGE HCGARR) (Dkt’d 09/21/83). 38 ye for 09/21/83 @ 2100 PM (CHIEF JUDGE (09/14/83 39 Motion rre-trial motion) granted in rarti denied in rart (HOTS) (DRAFT. Hotion for an order requiring the sovt to dive notice of its intention to use evidence of other Grimes: ete.) (CHIEF JUDGE HCOARR) Coheed og) Motion for Judgment of acquittal filed (MOT#29) 1984 for rswchiatric Interview end evalustion: (draft)? (CHIEF JUDGE HEGAKK) “ (Dee's 01719788). 4 02/14/84 101 Senbenetnd—reset—bo-037B6i04-E-2490-PHteourt ttn 03/05/84 102 ~ Fthed-wertitred core eterder-retermedeneunted tether 03/09/84 103 Order filed (Enter order that US Marshal transrort : 03/1378 03/14/84 03/16/84 03/26/84 03/29/84 o4ro2se4 0405/8. 104 105 105 106 106 106 106 106 107 107 108 109 110 aut PAGE 13 ¢R-€2-00807-01 PROCEEDINGS defendant from the Hetrorolitan Correctional Center to 5741 Chicago on Mars 14+ 1984 to allow Dr. Laurence Freedman to conduct s ravchiatric interview. Uratt.) (CHIEF JUDGE NCGARR) (Dkt"d 03/12/84). Motion for disaualification of Judse filed (MOT#33) (Count 1) (Dke'd 03/18/84). Order filed (Hotion for disqualification to be referred to ‘nother Judge for disrosition of this issue. Enter order thet UsSy sarshal trensrort defendant on 3/21 and 28+ 1964 to office of Dr. Freedaan for examination, (dratt).) (CHIEF JUDGE MCGARRD. (ikea 03/21/84). Attorney HONICO, MICHAEL D deleted from case (CHIEF JUDGE NCGARR) (Dkt"d 03/21/84). Sentencing stricken (CHIEF JUDGE HCGARR) —$_$______——— of parties they represent. = Pursuant to memorandum opinion and order entered this day, the defendant has filed the following pretrial motions, which are qranted in part and denied in part as detailed herein: motion for an order requiring the government to give notice of its intention to use at trial_evidence of Reserve space below for notations by minute clerk other crimes, etc; . _motion that the government be ordered to disclose its list of witnesses; motion for production of evidence favorable to the defendant; tion for the discovery and production of any written recorded statements, etc.; tion for the production of the workpapers of hand- iting experts; lotion for leave to file Hand this memerdndum to the Clerk, Counsel will not rise to address the Court unt] motion has been called. additional motions .--DRAFT Ppperdis 3 IN THE UNITED STATES DISTRICT COUR. FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION THE UNITED STATES OF AMERICA, Plaintiff, v. } No. 82 CR 897 gauss LEWIS, ) Defendant. } f MEMORANDUM OPINION AND ORDER Defendant James Lewis is charged in a single-count indictment with extortion, as that crime is defined in Title 16 U.S.C. § 1951 in that he caused a letter to be delivered to Johnson & Johnson poo aioe (ene (compote oly mitlion inorder tostor che al ange people with Tylenol capsules laced with cyanide poison. The cause has been set for September 16, for a setting for trial on a date shortly thereafter. His pretrial motions pend before the court, each of which will be treated in a separate section of this opinion. ic pefendant has moved for an order requiring the government to give notice of its intention to use at trial evidence of other crimes, wrongs or acts of the defendant. The government has indicated that it has no present intention to introduce evidence of other offenses. Defendant's motion in this regard is therefore A onica othe court has no doubt that the govecnment 4s] Coan 222. of its obligations to notify the court and the defense if their intention changes. Il. Defendant has moved that the government be ordered to disclose its list of witnesses. The state of the law is that the government need not do so but may be required to do so at the discretion of the court. The government has indicated itd witling- ness to do so if witness lists are exchanged by the parties. The court accepts this proposal as a fair resolution of the problem. Defendant's motion for the production of a government witness list is therefore denied, subject to the right of the defendant to obtain a list of government witnesses in exchange for a list of defense witnesses. 111s Defendant has moved for the production by the government of evidence favorable to the defendant, citing the obligation imposed upon the government by Brady v. Maryland, 73 U.S. 83 (1963). The government has responded that it has no such evidence in its possession but is mindful of its continuing obligation under Brady. The court accepts this representation as the basis for a denial of the motion. qv. Defendant moves for the discovery and production of any written or recorded statements made by the defendant as well as the substance of any oral or written statements which the govern- ment intends to offer into evidence resulting from the interro- gation by any person on behalf of the government. The government responds that it has complied fully with such motions and has made available to the defense all writings of the defendant in its possession and does not possess statements of the defendant made to government agents. Defendant additionally seeks reports of physical or mental examinations or scientific tests intended for use by the government as evidence at the trial. The government has provided the defen- dant with FBI laboratory reports which the court accepts as a representation of complete compliance with this discovery request. Defense seeks all documents or physical things presented or shown to the grand jury. The government correctly recites that it has no such obligation, but adds that it has already made available to the defendant all physical evidence related to the case in the possession of the government. This aspect, therefore, of the defendant's request is denied Defense seeks the recorded testimony of grand jury witnesses. Absent a showing of particularized need for grand jury transcript, that motion is denied. Defense has requested copies of search warrants issued covering searches of apartments allegedly used by the defendant in various cities together with the documents presented to the issuer of the warrant in justification thereof. The government has agreed to accede to this request. v, Defense has moved for production of workpapers of hand- writing experts. The government concedes that it intends to use the testimony of handwriting experts but denies its obligation to produce their workpapers under Rule 16 of the Federal Rules of Criminal Procedure. The defense replies that it bases its request upon Rule 16(a)(1)(D), which provides for the right of the defen- dant to inspect or copy results or reports of physical examinatio: scientific tests or experiments. : 5 It is the ruling of the court that the section of Rule 16 relied upon by defendant applies to experts’ reports concerning their handwriting analysis or other expert conclusions, and not to the workpapers such experts may have compiled in the prepara- tion of the report. Defense argues that the experts' reports furnished are minimal factual statements and statements of con- clusions of identity of handwriting samples, without any disclosure as to the basis for the conclusions, and therefore do not satisfy the pretrial discovery requirements. It can be argued, as the government does argue, that production of the report is sufficient and that a Rule 3500 request at the time of the experts’ testimony would satisfy the defense need for disclosure in preparation for cross-examination. It seems apparent in this case that the government's evi- dence will rely heavily upon handwriting comparisons and that they may very well be the principal evidence against the defendant. While the government's statement of the law is indeed correct, discretion remains within the court to order such dis- closure as seems equitable in the circumstances. The court will consider that workpapers of experts in the process of their analysi: and determinations are necessary to fulfill the obligation of the government in response to discovery requests to apprise the defendant of the gist of the expert testimony the government intends to rely upon The request of defendant, therefore, for the disclosure of the notes and workpapers prepared by plaintiff's experts in the course of their examination and the preparation of their report is granted. VI. Finally, defendant has asked the court for leave to file additional motions in the event that discovery produced in response to his earlier demands reveals the basis for subsequent applications to the court. The court will not bar the filing of additional motions by the defense as defense counsel feels are justified by late devel- oping circumstances. In the course of considering such motions the court will determine whether circumstances justified their filing. No blanket right to file late motions need be given and this application for leave to file additional motions, therefore, is denied. ENTER: UNZTED STATES DI; DATED: September 14, 1983 No. ___82 CR 897 UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT OF ILLINOIS Eastern Division UNITED STATES OF AMERICA -Vs- JAMES W. LEWIS, aso known as ROBERT RICHARDSON GOVERNMENT'S MOTION FOR PRODUCTION OF HANDWRITING AND HANDPRINTING EXEMPLARS Office of UNITED STATES ATTORNEY United States Court House Chicago, Dlinois 60604 353-5300 UNITED STATES DIX ICT COURT, NORTHERN DISTT ~T OF ILLINOIS ¥ ASTERN DIVISION Caw Name of Presiding Jue, Hono. eousnert C5 peg OG Ger) coo 82CR 897 Title of Cause U.S.A. V. JAMES W. LEWIS Brief Statement of Motion ‘The rules of this court require counsel to furnish the names of all parties entitled to notice of the entry of an order and the names and addresses of their attorneys. Please do this im- ‘mediately below (seperate lists may be appended). Names and Addresses of ‘moving counsel Representing OCT 29 1983 ‘Names and Addresses of other counsel entitled to ee of parties they represent. Reserve space below for notations by minute clerk b Government's motion for production of handwriting exemplars is granted. A decision in propriety of the use of such exemplars is reserved to Judge McGarr. Hand this memorandum to the Clerk. Counsel will not rise to address the Court until motion has been called. UNITED states DISTRICT COURT FILED NORTHERN DISTR®C? OF ILLINGIS EASTEEN DEYISION DOCKETED 007 24 1988 UNITED STATES OF AMERICA, Plaintif£, vs. No. 82 CR 897 Judge Frank J. McGarr JAMES LEWIS, Defendant. MOTION FOR PRODUCTION OF FAVORABLE NOW COMES the Defendant, JAMES LEWIS, by and through his attorneys, MICHAEL D. MONICO, LTD., and respectfully requests that this Court enter an Order on the Government to produce evidence favorable to the accused on the matters of state of mind and intent. In support of this motion defendant state: 1. Pursuant to Rule 16 of the Federal Rules of Criminal Procedure, the due process claus2 of the Fifth Amendment and the effective assistance guarantee of the Sixth Amendment, as well as the dictates of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio United States, 405 U.S. 150 (1972), the Government is required 9.5 1999. He STUART CUNNINGHAM, CLERK OCT 25 1983. Uwineo states bietmior court to disclose any evidence or information in its possession or in the possession of any agency of the United States, including but not limited to the Federal Bureau of Investigation, the Central Intelligence Agency, Postal Investigators and the Department of Justice, which is or may reasonably be expected to be favorable to the defendant and material to his alleged guilt or punishment, or which could be used to impeach Government witnesses. 2. One of the elements the Government must prove in av extortion case under Hobbs Ai 18 U.S.C., Section 1951, is intent to extort. United States v. Kovic, 684 F.2d 512 (7th Cir.), cert. denied, 103 s.ct. 304 (1982), Pursuant to the dictates outlined in paragraph one above, defendant is therefore entitled in this case to any such materials relative to the issues of state of mind and intent. WHEREFORE, defendant respectfully requests that this Court enter an Order on the Government to produce evidence favorable to the defendant on matters of state of mind and intent. Respectfully submitted, MICHAEL D. MONICO, Attorneys for Defendant 29 South LaSalle Street Barrister Hall - Suite 720 Chicago, Illinois 60603 (312) 782-8500 PROOF OF SERVICE fo: Mr. Dan Webb Mr. Jeremy Margolis Ms. Cynthia Giachetti United States Attorneys Office isth Floor 219 South Dearborn Street Eileen Genzlinger, being first dely sworn, states that she served a copy of this motion on the above named parties on October 21, 1983 before 4:30 p.m. Subscribed and sworn Before me this 21st day of Ocober, 1983 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, No. 82 CR 897 Judge Frank J. McGarr JAMES LEWIS, Defendant. MOTION FOR PRODUCTION OF FAVORABLE EVIDENCE REGARDING STATE OF MIND AND INTENT MICHAEL D. MONICO, LTD. ATTORNEYS AT LAW BARRISTER HALL - SUITE 720 29 SOUTH LaSALLE STREET ‘CHICAGO, ILLINOIS 60603 312-782-8500 UNITED STATES DISTRICT “URT, NORTHERN DISTRICT OF ILLINOIS L.STERN DIVISION lo Frank McGarr — Date__10/24/a3 _ Name of Presiding Judge, Honorable. Cause No._2-cx997-=1 U.S. v. Lewis Title of Cause Motion for Favorable Evi Brief Statement orable Evidence on Intent of Motion The rules of this court require counsel to furnish the names of all notice of the entry of an order and the nares and addresses of their attorneys. Please do'this immediately below (separate lists may be appended). fs : Michael Monico Ltd. lames am wth Lasalle Strect Addresses of moving counsel Representing m4 ates oot 28 88 219 South Dearborn Names and ‘Addresses of other counsel entitled to notice and names of parties they represent. Reserve space below for notations by minute clerk neyantatnnAddidrae Of Abe? gansbron Hand this memorandum to the Clerk. { Counsel will not rise to address the Court until motion has been called. UNITED STATES DISTRICT couRT NORTHERN DISTRICT OF TLLTNOTS FILED EASTERN DIVISION ETE DOCKETED cr 25 aca oct 2 LR nar CUNNINGHAM CLERK, U, 8. DISTRICT COURT No. 82 Cr 897 Judge McGarr United States of America, Plaintiff ee James Wm. Lewis, Defendant MOTION FOR JUDGMENT OF ACQUITTAL Now comes the defendant, James Wm. Lewis, through his attorneys, Michael D. Monico, Ltd., and respectfully requests that this court order the entry of a Judgment of Acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. In support of this motion defendant states: 1. On Monday October 24th, 1983 the Government rested its case in the prosecution of James Wm. Lewis for a violation of 18 U.S.C.A. §1951. 2. The evidence received through testimony, stipulations, admitted documents and other objects is insufficient to sustain a conviction of the defendant, James Wm. Lewis. WHEREFORE, defendant respectfully requests that this Court Order the entry of a Judgment of aAquittal. Respectfully submitted, yd «4 ws + qn : iiefagt b. WONICO, ITD. a Barrister Hall - Suite 720 Attorneys for the Defendant 29 South LaSalle Street 162918 Chicago, Illinois 60603 rn (312) 782-8500 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION United States of America, Plaintift - vs - No. 82 CR 897 Judge McGarr James Wm. Lewis, Defendant. MOTION FOR JUDGMENT OF ACQUITTAL MICHAEL D. MONICO, LTD. ATTORNEYS AT LAW BARRISTER HALL - SUITE 720, 29 SOUTH LoSALLE STREET CHICAGO, ILLINOIS 60603 312-782-8500 FILED UNT'1D STATES DISTRICT COURT SORTER DISTRICT OF ILLINOIS OCT 26 1983 H. STUART CURMINGHAM, CLERK UNITED STATES OF AMERICA, UNITED STATES BHSTINET COURT vs. 82 CR 897 Judge Frank J. McGarr DOCKETED GOVERNMENT'S MOTTON FOR ADMISSION OF DEFENDANT'S OCT 27 1983 CONVICTION TO IMPEACH THE DEFENDANT'S HEARSAY DECLARATION JAMES W. LEWIS, also known as Robert Richardson ‘The major evidence the defendant has introduced in his defense consists of muiltiple-page letters he wrote to the Chicago Tribune, the Department of Justice, and the Federal Bureau of Investigation, weeks after a complaint and arrest warrant were issued charging him with Hobbs Act extortion. This evidence, although hearsay, was admitted under the state of mind exception to the hearsay rule, Fed. R. Bvid. 803(3), over the government's ‘objection. ‘The government hereby seeks to introduce the defendant's 1983 felony conviction for mail fraud, pursuant to Rule 609, to impeach the numerous hearsay declarations that have been admitted into evidence. Such impeachment is expressly provided for in Rule 806 of the Federal Rules of Evidence, which states as follows: When a hearsay statement. . . has been admitted in evidence, the credibility of the declarant may be attacked . . . by any evidence which would be admissible for those purposes if declarant had testified as a witness. The notes of the Advisory Camittee make it clear that Rule 606 authorizes impeachment of a hearsay declarant by a conviction, as authorized under Rule 609. ‘The notes state: ‘The declarant of a hearsay statement which is admitted in evidence is in effect a witness. Wis credibility should in faimess be subject to impeachment and support as though he had in fact testified. See Rules 608 and 609. Furthermore, the case law has established that such impeachment is Proper when the defendant is the hearsay declarant. In United States v. Lawson, 608 F.2d 1129 (6th Cir. 1979), cert. denied, 444 U.S. 1091 (1980), (copy attached), a case strikingly similar to the instant case, defense counsel introduced exculpatory statements of the defendant through cross-examination of government witnesses and through a written statement of the defendant. ‘The court held that introduction of this evidence put the defendant's credibility at issue. Therefore, pursuant to Rule 806 and 609, two of the defendants prior felony convictions were admissible on the issue of credibility, even though the defendant did not testify himself. Id. at 1130. In ruling on pre-trial motions, this court already has ruled that the conviction in question is relevant and admissible to impeach the defendant under Rule 609 should he take the stand. In putting the defendant's hearsay statements into evidence, the defense has chosen to have him "testify under Rule 806 the conviction should be admissible to impeach those statements. The propriety of admitting the conviction is established by Rule 806 and Rule 609. ‘The fairness of admitting the conviction is evident from the facts of this case. ‘The defendant has intorduced three letters consisting ‘of numerous pages of hearsay. These letters all were written after the defendant knew that charges had been brought against him for Hobbs Act extortion. ‘The letters themselves are blatantly exculpatory and contain the bulk of the defendant's defense in this case. By introducing his defense ‘through these letters, the defendant was relieved of any necessity to testify in this case. However, the government cannot cross-examine inanimate objects such as pieces of paper. The jury is left with no ability to judge the credibility of the defendant through the normal channels of demeanor reaction to cross-examination on bias, motive, 608(b) false statements, or any other areas on which the government would have been able to examine if the defendant took the stand. Furthermore, the defendant in his letters characterizes himself as a good citizen informant who is not a criminal but who is being unfairly treated as a criminal. ‘The letters not only contain his defense, but contain assertions xegartiing his own character and credibility. ‘To allow the defendant to present such a false picture of his own credibility, and to deny the government even one iota of evidence to contradict this misimpression, defies both law and equity. Rule 806 recognizes this inherent unfairness. In clear terms, the Rule does not allow the defendant to testify through hearsay statements and then hide from all impeachment. In this case, where the bulk of the defense rests in the defendant's written words, this court should allow the jury to have at least some evidence with which to judge the credibility of the defendant's exculpatory statements. ‘The conviction being offered for impeachment meets all the requirements of Rules 806 and 609, and should be admitted pursuant to those rules. Respectfully submitted, ( / Yom’ ATA ut DN United States Attorney JEREMY D. MARGOLIS Assistant United States Attorney Bag eb Opeete Cynthta L. Gi. etd Assistant United States Attorney RU refusal af the Sate Board to teat Schoener iby Brteaht Tad web to neo acre 8 mr which doesnot ext pitt il be derived of Eton by tht tant fo an dei and coefe utem, Me tha claim os ae By wa 100 plain Tr trcepton which the Obs wren propery dic sslton ef the Dis with Fer reforendun unt Truive bene enor orange referenda fot he Sate ours hold See vee propel spl nd vee no Rene tra voter: tothe forgoing cans, the sated thatthe defendants hoal Dirt andthe State ration opie to ony the te Braicai Sahel Distt & 9 iterated edveatios! env: im wan bused eonetily Tae by Chief Joige Prank sel Rhode 155 F Sapp. 8 i) that te Cleveland Soo! teen uly of maining tel eaten of cation At wTodge Manes eld thatthe hed to alge. «ai upon could be granted and e a ered judgment in favor of be Sseing Ue complain ‘Th = consideration, this cor fly Mancha the extensive ston inthe Ohio State courts completly dapetve of all spt plantiffen the federal that of compircy. Pants retiugte sate ie Por aged and snepported feral constitutional Fgh wo thowing whatever thatthe Pach the sho! Sit was ited any federally guaranteed Tights ofthe indie aie ve pli acoo ie, nt y showing that the exercise of UNITED STATES v. LAWSON 129 ‘teas 608 F261129 (1979) the Board's discretion in declining to grant Bratenahl an exception to the statute was motivated by impermissible considerations or was otherwise invalid, [2] With respect to she claims of con- spiracy, it is manifest that the efforts of Bratenahl to characterize the conduct of the State Board and the City defendants as discriminatory are wholly conclusory, and that plaintiffs have altogether failed in their burden to come forward with respect to their claim that the State Board and the City Board of Education are con- spiring to merge the Cleveland and Braten- ahl School Districts because of race, Nei- ther do we know of any ease law, nor have Wwe been cited any, which holds that a merg- er of schoo! districts under state law, wh has the incidental effect cf creating a more uniform racial mix of students, in itself spells out any form of constitutional griev- ance on the part of the students of one Particular race. This is se even though the Action of one school district may, in fact, be ‘motivated by a need to desegregate under the compulsion of charges that it was oper- ating a dual system, Acorrdingly, ‘The judgment of the district court is UNITED STATES of America, Plaintiff-Appellee, Charles William LAWSON, Defendant-Appellant. No. 78-8502. United States Court of Appeals, Sixth Cireuit, Argued Oct. 11, 1979. Decided Nov. 14, 1979. Rehearing Denied Dee. 4, 1979, Defendant was convicted in the United States District Court for the Middle Distriet of Tennessee, L. Clure Morton, Chief Judge, of uttering and possessing counterfeit mon. fy, and he appealed. ‘The Court of Appeals hheld that where defense counsel cross-ex- ‘amined government witness to bring out that defendant had consistently denied any involvement in the counterfeiting scheme, ‘and introduced written statement in which defendant denied all complicity in counter- feiting activities, defendant's credibility was made an issue in the case, 80 that evidence of defendant's prior felony convie- tions was admissible on issue of credibility, even though defendant never testified him. self, Affirmed. Criminal Law 2=338(6) Where defense counsel, in prosecution for uttering and powessing counterfeit ‘money, cross-examined government witness to bring out that defendant had consistent ly denied any involvement in the counter- feiting scheme, and introduced written statement in which defendant denied all complicity in counterfeiting activities, de- fendant's credibility was made an issue in the case, so that evidence of defendant's prior felony convictions was admissible on issue of credibility, even though defendant Never testified himself. Fed.Rules Evid Rules 609(a), 806, 28 U.S.C.A. Donald E. Holt, Florence, Ala. (court-ap- Pointed), Joe M. Patterson, Jr., Florence, Ala, for defendant-appellant. Hal D. Hardin, U.S. Atty, Margaret M. Huff, Nashville, Tenn,, for plaintiff-appel- lee. Before CELEBREZZE and LIVELY, it Judges, and PHILLIPS, Senior Circuit. Sudge. PER CURIAM. The defendant Charles William Lawson ‘appeals from his jury conviction for utter- 1130 ing and possessing counterfeit money. He contends that the district court committed reversible error in permitting the jury to hear evidence of two previous convictions. ‘Though Lawson did not testify, his counsel cross-examined a government witness who ‘was a secret service agent to bring out the fact that Lawson had consistently denied any involvement, and introduced a written statement in which Lawson denied all com- plicity in the counterfeit activities. By putting these hearsay statements be- fore the jury his counsel made Lawson's credibility an issue in the case the same as if Lawson had made the statements from the witness stand. Rule 806, Federal Rules of Evidence, provid ‘When a hearsay statement, or a state- ment defined in Rule 801(4}2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be at- tacked, and if attacked may be supported, by any evidence which would be admissi- ble for those purposes if declarant hed testified as a witness, Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, ia not subject to any require ‘ment that he may have been afforded an ‘opportunity to deny or explain. If the party against whom a hearsay statement thas been admitted calls the declarant as a witness, the party is entitled to examine ‘him on the statement as if under cross- ‘examination. Thus, evidence which would have been ad- rmissible to impeach Lawson if he had test fied was admissible for this purpose under the circumstances of this case. Prior felony ‘convictions are admissible for this purpose under Rule 609(a), Fed REvid. The jury was properly instructed that the evidence of previous convictions was to be considered only on the issue of credibility. ‘The second contention of the appellant which related to an inadvertent statement by counsel for his co-defendant is without merit. The trial judge took steps to make clear to the jury that it was to consider only previous convictions which had been estab- lished by the evidence. 608 FEDERAL PORTER, 2d SERIES ‘The judgment of the district court is af- UNITED STATES of America ex rel. Marlene SWIMLEY, Petitioner-Appellant, Charlotte NESBITT, Warden of Dwight Correctional Center, Respondent-Appellee. No, 19-1206. United States Court of Appeals, Seventh Cireuit. Argued Oct. 2, 1979. Decided Nov. 2, 1979. Appeal was taken from an order of the United States District Court for the North- ern District of Tllinois, Joel M. Flaum, J., denying a petition for habeas corpus relief. ‘The Cireuit Court, Bauer, Circuit Judge, held that failure of Illinois State trial judge to give some kind of cautionary instruction ‘on testimony of accomplices or immunized witnesses in prosecution for solicitation to commit murder did not violate defendant's due process right to a fair trial. Affirmed, 1, Criminal Law @45 linois law requires that to be guilty of solicitation, a person must request or en- courage another to commit a erime with the intent that the erime be committed. IPI Criminal No. 6.01 2, Habeas Corpus €=45.2(2) ‘A federal court in a habeas corpus ae- tion is limited in its search for error to those of constitutional magnitude, 28 US. CA. § 2254. a ‘UNIT 3, Habeas Corpus = One convicted of + has a particularly hee lishing a constitutions complains not that sta ous instruction, but th permissible instruction 4, Constitutional Law Failure of inois give some kind of eaut testimony of accomplic nesses in prosecution f ‘mit murder did not vi process right to a fai 88, § 8-1; IPI Crim US.C.AConst. Amend Louis Carbonaro, C tioner-appellant. ‘Thomas E. Holum, . cago, Il, for responde Before CUMMINGS Cireuit Judges. BAUER, Circuit Juc ‘The petitioner, Ma convicted of solicitatic in violation of IILRev. Cook County jury. affirmed by the Ilix People v. Swimley, Dee. 608, 872 N.E, 489 USS. 911, 99 Sct (1978). The petitione of habeas corpus in From the denial of her We affirm, 1. The tape recordings re change: JOSEPH SALADINO MARLENE. SWIML friend of Tom Mangi fest one talked to Tor thing about it coul JOSEPH SALADINC ‘What is exactly « what's, wh is ft. MARLENE SWIMLE band, JOSEPH SALADINO No. 82 CR 897 UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT OF ILLINOIS Eastern Division UNITED STATES OF AMERICA JANES W. LEWIS, also known as Robert Richardson GOVERNWENT'S MOTION FOR ADMISSION OF DEFENDANT'S CONVICTION TO IMPEACH ‘THE DEFENDANT'S HEARSAY DECLARATION Office of UNITED STATES ATTORNEY United States Court House Chicago, Dlinois 60604 353-8300 10:30 a.m. UNITED STATES I TRICT COURT, NORTHERN DI RICT OF ILLINOIS F (TERN DIVISION Name of Presiding Judge, Honorable FRANK J. McGARR, CHIEF . uDGE Cause No.__82 Title of Cause Brief Statement of Motion Names and Addresses of ‘moving counsel Representing, 87 1983 Names and Addresses of other counsel entitled to notice and names of parties they represent, HOcKETeD at 97 8? yor 07 8 ¢. oe CR 897-1 Date_Oct. 26, 1983 United States of America vs. James Lewis on trial ‘The rules of this court require counsel to furnish the names of all parties entitled to notice of the entry of an order and the names and addresses of their attorney. Please do this immediately below (seperate lists may be appended). Reserve space below for notations by minute clerk Trial held. Evidence heard. Government's motion for admission of defendant's conviction to_impeach the defendant's hearsay declaration is granted. Defendant's motion for judgment of acquittal at the close of all of the evidence is denied. Trial adjourned to Oct. 27, 1983 at 10:30 a.m. Hand this memorandum to the Clerk. ‘Counsel will not rise to address the Court until motion has been called. FILED UN’ “D STATES DISTRICT COURT OCT 24 1993 NOh.HERN DISTRICT OF ILLINOIS N EASTERN DIVISIO! 1H. STUART CUNNINGHAM, CLERK UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT. No. 82 CR 897 Chief Judge Frank 3. MeGart) DKF TED OCT 28 i993 v JAMES W, LEWIS, also known as Robert Richardson GOVERNMENT'S MOTION FOR ADMISSION OF OTHER CRIMES EVIDENCE UNDER RULE 404(b) I, THE PROFFERED EVIDENCE In his opening statement, defense counsel for the Defendant James W. Lewis, admitted that Lewis wrote and mailed the extortion letter charged in the indictment, However, he further argued that Lewis did not have the intent required under the statute, In addition, during cross-examination of the government witnesses, he has attempted to establish this lack of intent defense. ‘Thus, the defendant's intent clearly has been put in issue in this trial. As evidence bearing on the defendant's intent, the government seeks to admit the following under Rule 404(b) of the Federal Rules of Evidence: 1, Evidence concerning form extortion letters seized from the defendant's residence in December of 1981. This evidence will be in the form of testimony from the Agent who seized the documents and introduetion of the documents ‘themselves, Copies of the proposed exhibits are attached hereto. 2, Evidence concerning a mail freud scheme in which the defendant participated in 1981. In that scheme, the defendant mailed applications for credit cards using false names. He received the cards at a mail drop he had set up in the false names. After receiving the cards, the defendant used them to fraudulently make purchases. The defendant was convicted of mail fraud in federal court in Kansas City in May 1983. 7 A Za Evidence of the max fraud scheme will be in the fu..a of a certified copy of the conviction, a certified copy of the indietment, and introduction of certain documents relevant to the mail fraud scheme seized from the defendant's residence. In addition, we may present the testimony of an accomplice in the scheme, George Rea, who testified to the details of the mail fraud scheme in the Kansas City trial. I, THE PROFFERED EVIDENCE IS ADMISSIBLE UNDER RULE 404(b) OF THE FEDERAL RULES OF EVIDENCE ON THE ISSUE OF THE DEFENDANT'S MENTAL STATE A. The Proffered Evidence Is Relevant to and Probative of Defendant's Mental State Te Rule 404(b) governs introduction of evidence regarding other crimes, wrongs or acts. The rule specifically provides that such evidence may be admitted as proof of intent. Since intent clearly is the certral issue in this ease, introduction of 404(b) evidence in the government's case in chief is proper. See, eg., United States_v. Weidman, 572 F.2d 1199, 1202-1203 (7th Cir.), cert. denied, 439 U.S. 821 (1978). Both of the acts the government seeks to introduce meet the relevancy requirements of other crimes evidence as set forth in the caselaw. Ordinarily, other bad acts must be "similar to the offense charged and close enough in time to be relevant," United States v. Lea, 618 F.2d 426, 431-432 (7th Cir,), cert. denied, 449 U.S. 823 (1980), but there is "no requirement that the prior acts be virtually identical to the charged acts." United States v. MePartlin, 595 F.2d 1321, 1343 (7th Cir.), cert. denied, 444 U.S. 833 (1979). ‘The evidence proffered is relevant to and probative of the defendant's mental state in sending the letter to Johnson & Johnson. The defendant claims he sent the extortion letter to Johnson & Johnson, not to effect a transfer of 1 million dollars, but to revenge ‘and expose the criminal deeds of Frederick MeCahey. The defense argued in opening

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