UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. )

) Case No. 12-cr-175

DERRICK SMITH, )

)

Defendant. ) Judge Sharon Johnson Coleman

)

MEMORANDUM OPINION AND ORDER

Defendant, Derrick Smith, moves for a new trial [176] pursuant to Federal Rule of Criminal 

Procedure 33. For the reasons stated herein, the motion is denied.

Background

Smith was indicted on April 10, 2012, on a single count of corruptly soliciting a bribe in 

violation of 18 U.S.C. § 666. On April 3, 2014, a superseding indictment was issued alleging two 

counts: corruptly soliciting a bribe in violation of 18 U.S.C. § 666 and attempted extortion in 

violation of 18 U.S.C. § 1951. After an eight-day trial, the jury returned a verdict against Smith on 

both counts of the superseding indictment. This Court entered judgment of guilty on the verdict on 

June 10, 2014.

Legal Standard

Federal Rule of Criminal Procedure 33 allows the Court to vacate any judgment and grant a 

new trial if the interest of justice so requires. The Court will grant a new trial if there is a reasonable 

possibility that the alleged trial error will affect the jury’s verdict. See United States v. Gonzalez, 319 

1
F.3d 291, 297 (7th Cir. 2003). Such motions rarely are granted and “only in those really exceptional 

cases.” United States v. Reed, 986 F.2d 191, 192 (7th Cir. 1993).

Discussion

Smith moves for a new trial, arguing the Court erred in four ways at trial: (1) in denying 

Smith the right to present and entrapment defense; (2) in presenting deficient jury instructions 

regarding intent; (3) in denying Smith the ability to present text message evidence relating to 

entrapment; and (4) in denying Smith’s motion in limine to exclude audio recordings as inadmissible 

hearsay in violation of Smith’s right to cross-examination under the Sixth Amendment. The Court 

will discuss each alleged error in turn.

1. Denial of Smith’s Right to Present an Entrapment Defense

Smith argues that this Court erred in granting the Government’s motion in limine to bar 

Smith from seeking an entrapment defense without first submitting a proffer. The Government 

asserts that Smith waived the defense.

“Entrapment occurs when the government coerces a defendant into committing an illegal 

act he was not otherwise predisposed to commit.” United States v. McGill, 754 F.3d 452, 457 (7th Cir. 

2014) (citing United States v. Russell, 411 U.S. 423, 434-35, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973); 

Sherman v. United States, 356 U.S. 369, 372, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958); United States v. 

Pallido, 656 F.3d 754, 758 (7th Cir. 2011)). “An entrapment instruction is warranted if the evidence 

would permit a jury to find that the defendant was not predisposed to commit the crime and that the 

government induced him to do so. Although more than a scintilla of evidence of entrapment is 

needed before instruction on the defense becomes necessary, the defendant need only point to 

evidence in the record that would allow a rational jury to conclude that he was entrapped.” McGill, 

754 F.3d at 457 (internal citations omitted).

2
This Court granted the Government’s pretrial motion to have Smith submit a proffer of the 

evidence in support of an entrapment defense. Smith presented a proffer. (Dkt. 146). In response to 

the proffer, the Government presented evidence that Smith received $7,500 from a liquor store, 

which the Government expected to use to demonstrate ample predisposition. Thereafter, Smith 

informed the Court that he did not intend to offer an entrapment defense. Smith’s abandonment of 

the entrapment defense is further indicated by his failure to propose an entrapment instruction in 

either of his two proposed jury instruction submissions. (Dkt. 149, 165). In light of Smith’s proffer 

and later abandonment of the defense, this Court did not commit error warranting retrial. 

Smith relies on United States v. McGill, 754 F.3d 452 (7th Cir. 2014), the most recent Seventh 

Circuit ruling relating to entrapment issue. McGill was found guilty of possession and distribution of 

child pornography after the FBI informant, Elliott, pestered McGill for weeks before McGill 

allowed him to bring a USB drive to his apartment to copy child pornography from his computer. 

By all accounts Elliott was McGill’s only friend. The Court explained that “a line must be drawn 

between the trap for the unwary innocent and the trap for the unwary criminal” and that “unwary 

innocents” are not limited to those whose lives are free of crime. Id. at 458. The Seventh Circuit 

reversed the district court’s refusal to give the entrapment instruction. The district court found no 

evidence of predisposition, but refused the instruction because the defendant had not pointed to 

evidence of inducement. The Seventh Circuit held that exploitation of friendship can constitute 

proper inducement and the record provided sufficient basis for a rational jury to infer that Elliott. Id. 

at 458, 459.

However, the evidence presented at Smith’s trial was significantly different than in McGill

and Smith’s reliance on that case is misplaced. In McGill, there was substantial evidence of hesitation 

and resistance by McGill. Indeed, the evidence there showed that the informant, Elliott, would steer 

innocent conversations on unrelated subjects back to child pornography and when Elliott pestered 

3
McGill into providing him with child pornography, McGill cancelled, claiming he was sick. Only 

after Elliott prodded him did McGill allow Elliott to bring a flash drive over to McGill’s home to 

copy his collection. Here, there is not similar evidence of resistance by Smith nor was there constant 

coaxing and prodding by the informant. The informant in Smith’s case was not a close friend, but 

only a campaign acquaintance. The informant certainly was not Smith’s sole confidant. Smith did 

not express a similar sort of reluctance to participate in the bribery scheme and the informant’s 

repeated questions regarding timing and arrangements are not equivalent to the level of prodding in 

McGill’s case. It was clear from the conversations presented at trial that Smith participated expecting

his share of the proceeds. Accordingly, this Court declines to grant a new trial on this issue.

2. Jury Instructions

Smith next argues that the Court erred by refusing Smith’s proposed instruction on the 

definition of corrupt intent. Smith proposed the Court instruct the jury as follows:

A person acts corruptly when that person acts with the understanding that 

something of value is to be offered or given to reward or influence him in 

connection with his official duties. A corrupt intent exists only if there is a specific 

quid pro quo for the public official to engage in a specific official act in exchange for 

something of value. Vague expectations of some future benefit are not sufficient to 

make a payment a bribe. (Dkt. 149 at 14).

Smith did not provide authority for giving this instruction and simply cited the statutory 

provision under which Smith had been charged. Moreover, Smith does not now present any 

authority for this Court to have given the proposed instruction or authority establishing it was error 

to refuse it. While it is true that the jury’s sole question during deliberations was directed to the 

definition of intent, that alone does not establish that the Court erred by refusing the instruction. In 

response to the question, the Court instructed the jury to review the instructions they were given, 

which defined the term “corruptly” as it is used in the Seventh Circuit pattern instructions. 

“Corruptly” is the precise state of mind pursuant to which Smith must have acted to be found guilty. 

Rather than merely intending to act, Smith must have acted corruptly. See 18 U.S.C. § 666(a)(1)(B). A 

4
defendant is entitled to a particular instruction only if its refusal denies the defendant a fair trial. 

United States v. Pedigo, 12 F.3d 618, 626 (7th Cir. 1993). There is no indication here that Smith was 

denied a fair trial based on the Court’s refusal to give this particular instruction.

3. Text Message Evidence Relating to Entrapment

Next, Smith argues that the Court erred in denying Smith the ability to present text message 

evidence relating to entrapment. Smith asserts that the Court’s rulings on which text messages could 

be presented at trial were inconsistent. All of the text messages were between the Confidential 

Informant (“CI”) and the FBI therefore the reliability of the text messages should have been treated 

the same. Smith contends that the Court arbitrarily decided which text messages to admit and which 

to exclude without providing rationale as to their admissibility. Smith argued, at trial and now, that 

all the messages should have been admitted and the Government argued that all of them should 

have been excluded.

Smith does not identify which text messages in particular that the Court excluded that 

denied Smith a fair trial. Smith provides no authority for his position that this Court was required to 

admit all the text messages or exclude all the text messages rather than do what the Court did, which 

was direct Smith to identify the particular text messages about which he sought to question Special 

Agent McDonald. Pursuant to Rule 611, this Court has the authority to “exercise reasonable control 

over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the 

interrogation and presentation effective for the ascertainment of the truth.” Fed R. Evid. 611. The 

Court’s ruling concerned the propriety of the questioning of McDonald recalled for additional crossexamination. “A party may not call a witness for the sole purpose of impeaching him.” United States 

v. Vasquez, 635 F.3d 889, 897 (7th Cir. 2011) (quoting United States v. Giles, 246 F.3d 966, 974 (7th 

Cir. 2001)). Furthermore, Smith informed the Court that he did not intend to pursue the entrapment 

5
defense before he was to recall McDonald. This Court exercised its discretion in limiting the 

additional cross-examination of McDonald by limiting the text messages about which he could be 

questioned.

4. Motion in Limine to Exclude Audio Recordings as Inadmissible Hearsay

Lastly, Smith asserts that the Court erred by denying his motion in limine to exclude audio 

recordings, which were inadmissible hearsay and in violation of Smith’s Sixth Amendment right to 

cross-examination. Smith sought the exclusion of the audio recordings based on the Government’s 

disclosure that it would not be calling the Confidential Informant as a witness. This Court granted 

the Government’s motion to admit the recordings through testimony of law enforcement officers. 

This Court so ruled because Smith’s statements on the recording are unquestionably admissible as 

party admissions and the Confidential Informant’s half of the recorded conversations give context 

to Smith’s statements. See United States v. Simmons, 582 F.3d 730, 736 (7th Cir. 2009); United States v. 

Tolliver, 454 F.3d 660, 666 (7th Cir. 2006). The law clearly allows the Government, as the party 

offering the evidence, to establish authenticity of the recordings through chain of custody or by 

other foundation as to the trustworthiness and accuracy of the evidence. United States v. Collins, 715

F.3d 1032, 1035 (7th Cir. 2013) (citing United States v. Thomas, 294 F.3d 899, 904 (7th Cir. 2002), and 

United States v. Eberhart, 467 F.3d 659, 667 (7th Cir. 2006)). Therefore, this Court did not err in 

admitting the audio recordings even without the testimony of the Confidential Informant.

Conclusion

Based on the foregoing, Smith’s motion for a new trial is denied.

IT IS SO ORDERED.

Date: October 29, 2014

Entered: ______________________________

6