United States v. Burke

1

UNITED STATES OF AMERICA, Plaintiff, v. EDWARD M. BURKE, PETER J. ANDREWS and CHARLES CUI, Defendants

No. 19 CR 322

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

October 28, 2023

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL JUDGE

For the reasons below and those stated in open court on October 16 and 18, 2023, the Court rules on Defendant Edward Burke's Second Consolidated Motions in Limine [247] as follows.^[1]

A. Motion in Limine A

First in Burke's motion A, he objects to the admission of certain of Daniel Solis's recorded statements as hearsay. (Dkt. 247 at 7-10). The general objection is overruled. “[Statements providing context for other admissible statements are not hearsay because they are not offered for their truth.” United States v. Jackson, 940 F.3d 347, 352 (7th Cir. 2019) (quoting United States v Foster, 701 F.3d 1142, 1150 (7th Cir. 2012)); see also United States v. Wright, 722 F.3d 1064, 1067 (7th Cir. 2013) (observing that “statements are admissible when they make a defendant's recorded statements intelligible for the jury or when brief and essential to bridge gaps in the trial testimony that might significantly confuse or mislead jurors” (quoting United States v. Walker, 673 F.3d 649, 657-58 (7th Cir. 2012))) (cleaned up). The “exception is not limited to conversations between two parties so long as the out-of-court statements provide context.” United States v Norton, 893 F.3d 464, 467 (7th Cir. 2018).

For instance, recorded conversations between defendants and informants are admissible if the “informant's statements provide context for the defendant's own admissions.” Jackson, 940 F.3d at 352 (quoting Foster, 701 F.3d at 1150). Indeed, statements of non-conspirators are admissible “‘to give context to the coconspirators' ends of the conversations,' even when being introduced against a conspirator not included in the conversation.” United States v. Quiroz, 874 F.3d 562, 570 (7th Cir. 2017) (quoting United States v. Zizzo, 120 F.3d 1338, 1348 (7th Cir. 1997)). “[C]oncrete and understandable” limiting instructions will help ensure that the jury uses context statements properly. See Wright, 722 F.3d at 1068; Norton, 893 F.3d at 467-68 (citing Zizzo, 120 F.3d at 1348). Of course, “context” has limits: the exception does not permit parties to sneak in statements for their truth. Wright, 722 F.3d at 1067 (citing United States v. Nettles, 476 F.3d 508, 517 (7th Cir. 2007)); see also (Dkt. 302). As the Court continues its careful review of objections to the recording transcripts, some statements offered for “context” may not make the cut.

B. Motion in Limine B

Second, Burke's motion B seeks to exclude consensually recorded conversations between Solis and Harry Skydell. (Id. at 10-11). The Government indicates that it will only seek to introduce the recordings if they become relevant for a non-hearsay purpose-for instance, if Burke raises a defense based on Skydell's statements in government interviews which are purportedly exculpatory of Burke. (Dkt. 286 at 12-14). Thus, the Court reserves ruling on these recordings' admissibility. The parties will not mention the Solis-Skydell recordings in opening statements. Should a party intend to introduce evidence of or relating to the Solis-Skydell recordings, they will seek permission from the Court in advance.

C. Motion in Limine C

Third, Burke's motion C for a limiting instruction if Solis recordings are admitted is granted in part. (Dkt. 247 at 11-12). The Court will give the Government's proposed instruction:

You have heard recordings that included statements made by Daniel Solis during his cooperation with the government. The statements Solis made in these recordings may not be considered as evidence that what he said is actually true. You can consider Solis's statements in these recordings only to place in context and help you understand the conversations and the statements made by others in these recordings.

(Dkt. 286 at 14-16). Defense counsel will remind the Court to repeat the instruction when appropriate.

D. Motion in Limine D

Fourth, Burke's motion D, to exclude evidence or argument on the unethical nature of feesplitting is denied. (Dkt. 247 at 12-14). At issue are tape-recorded conversations between Burke and Solis about a possible marketing arrangement if Solis brought clients to Burke's law firm. (Id. at 12). Despite Burke's objections, the evidence is not offered for an off-limits propensity inference. See Fed.R.Evid. 404(b)(2); United States v. Ferrell, 816 F.3d 433, 444 (7th Cir. 2015) (evidence relevant to “another purpose” through “some propensity-free chain of reasoning” is admissible, subject to Rule 403 balancing (quoting United States v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc)). Rather, it is probative of Burke's knowledge and state of mind-going to the Government's theory that Burke's intent to create a sham marketing arrangement with Solis reflects his awareness of wrongful conduct. Since Burke is a lawyer, presumably aware of his ethical obligations, evidence of unethical conduct has particular relevance. Nor is the probative value of the evidence substantially outweighed by the dangers of unfair prejudice or confusing the jury. See Fed.R.Evid. 403. To the extent there is some risk of prejudice or confusion, a limiting instruction will help ensure the jury understands the proper use of the evidence. The parties are directed to propose a limiting instruction to accompany the admission of the marketingarrangement conversation.

E. Motion in Limine E

Fifth, Burke's motion E, to exclude evidence argument about alleged misuse of City resources and personnel, is denied without prejudice. (Dkt. 247 at 14-15). Evidence that Burke misused City resources or personnel is direct evidence of action without the consent of Burke's employer-an element the Government must prove as to several of the charges, including the predicate offense of commercial bribe receiving. See, e.g., 720 ILCS 5/29A-2. Burke may re-raise this objection in response to specific evidence offered at trial if appropriate.

F. Motion in Limine F

Sixth, in Burke's motion F, joined by Andrews, he seeks to exclude 23 emails as hearsay, not admissible under the business-records exception. (Dkt. 247 at 15-28; Dkt. 248 at 2). This motion is taken under advisement.

G. Motion in Limine G

Seventh, Burke's motion G seeks to exclude all references to the Chicago Ethics Ordinance, particularly (1) the duty to report provision, Chi. Mun. Code § 2-156-018; (2) the duty not to participate provision, id. § 2-156-030(a); and (3) the duty not to contact or participate in discussion provision, id. § 2-156-030(b). (Dkt. 247 at 28-34). At the outset, the Court agrees with Judge Dow that Burke's compliance with these latter two provisions, §§ 2-156-030(a) and (b), speaks to whether Burke's efforts to solicit business for his law firm were “not authorized by law”-relevant to predicate racketeering acts under state law. (Dkt. 196 at 185-86 (denying request to strike the Indictment's references to the ethics ordinance)); see 720 ILCS 5/33-1(d), 5/33-3(a)(4). That reasoning extends to the duty to report provision, § 2-156-018. These provisions' relevance is not substantially outweighed by the risk of prejudice or juror confusion, especially with the aid of appropriate limiting instructions. See Fed.R.Evid. 403.

Focusing on Burke's Fifth Amendment challenge to the duty to report provision, § 2-156018, he argues that mention of the ordinance at trial would offend his right against selfincrimination by inviting the jury to convict him due to a failure to self-report. (Dkt. 247 at 30; Dkt. 290). The duty to report provision states:

Every city employee or official shall report, directly and without undue delay, to the inspector general any and all information concerning conduct which such employee or official knows or should reasonably know to involve corrupt or other unlawful activity (i) by another city employee or official which concerns such employee's or official's employment or office; or (ii) by any person dealing with the city which concerns the person's dealings with the city. Any employee or official who knowingly fails to report a corrupt or unlawful activity as required in this section shall be subject to employment sanctions, including discharge, in accordance with procedures under which the employee may otherwise be disciplined.

Chi. Mun. Code § 2-156-018(a).

In considering a statutory obligation to disclose potentially self-incriminating information, the Fifth Amendment requires “balancing the public need on the one hand, and the individual claim to constitutional protections on the other.” California v. Byers, 402 U.S. 424, 427 (1971) (plurality opinion). Both interests are weighty. Id. In determining whether the duty to report ordinance here gives rise to “substantial hazards of self-incrimination,” factors of particular importance are the extent to which it (1) targets a “highly selective group inherently suspect of criminal activities,” rather than the general public; and (2) delves into “an area permeated with criminal statutes,” rather than an “essentially noncriminal and regulatory area.” Id. at 428-30 (quoting Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 79 (1965), and Marchetti v. United States, 390 U.S. 39, 48 (1968)); see also United States v. Turner, 480 F.2d 272, 277 (7th Cir. 1973) (“[C]onsideration must be made of both the nature of disclosure required and the regulatory purpose for which it is required.”).

Despite Chicago's long history of battling public corruption City employees are not “inherently suspect of criminal activities.” See Byers, 402 U.S. at 430-31 (drivers are not “inherently suspect”); ...