not that is the case. The court notes that, because the defense has had the amended
transcript since before the trial started, this argument could have been included in
Hale’s June 24, 2004, motion.

Third, on August 2, 2004, Hale filed a “Motion for Leave to File Amendment to
Defendant's Post-trial Motion to Add a Motion for a New Trial Based Upon Ineffective
Assistance of Counsel,” (docket # 222). As its title states, by this motion Hale sceks to
amend his June 24, 2004, motion to add a claim that he should be granted a new trial
because he received ineffective assistance of trial counsel.

The court notes that attorney Murphy dic not represent Hale at trial, so this
argument could have been made in the June 24, 2004, motion, unless based on newly-
discovered evidence.” However, until his September 10, 2004, reply to the government's
response to his motion for leave to amend, Hale made no suggestion that the claim is
based on newly-discovered evidence. Even then, Hale states in his reply that while
“some” of his evidence of ineffective assistance is newly-discovered (without describing
what the new evidence is), were the court to limit his proposed amendment solely to
claims involving newly-discovered evidence, then he would “likely forego filing such a
motion.” Reply to Government’s Responses to Defendant's Supplemental Post Trial

Motions (docket # 237) at 8, 8a.

’ The court also notes that all ineffective assistance claims can be raised ina
motion pursuant to 28 U.S.C. §2255, Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690,
155 L.Ed.2d 714 (2003), and that Hale has three years from the date of verdict to raise
any claims, whether or not involving ineffective assistance, that are based on newly-
discovered evidence. FED, R. CRIM. P, 33(b)(1).

4


ee

” Rule 33.” On September 10, 2004, Hale filed replies (docket ## 236, 237) to both
government responses.

As the court hopes is clear from the brief summaties given above of Hale’s filings
made after his June 24, 2004, post-trial motion, with the exception of section IV of his
Supplement (see n. 5 at p.3 above), and the transcript excerpts filed on
September 23, 2004, each of the filings is an attempt to add new claims and arguments
to the June 24, 2004, motion. Whatever merits, if any, these claims and arguments may
have, this is not the time or place to address them. The Court of Appeals has expressly
rejected the argument that amended or supplemental motions relate back to the filing of
a timely motion for a new trial under FED. R, CRIM, P. 33, as that would “create a back
door through which defendants could raise additional grounds for a new trial long
after” the seven-day deadline provided in the tule, or any allowable extension thereof,
has expired. United States v. Holt, 170 F.3d 698, 703 (7th Cir. 1999). This reasoning
applies equally to motions under RULE 29, as it contains the same seven-day deadline,
Fen. R, CRIM. P. 29(c)(1), and the court is strictly limited to the terms of both rules in
granting any extensions of time. FED. R. Crim. P. 45(b)(2).

For this reason, the court treats Hale’s filings summarized above, with the two
exceptions noted, as motions to supplement or amend his June 24, 2004, mation, and
each of those motions is now DENIED. Accordingly, Hale’s “Supplement to
Defendant's Post-Trial Motion,” (docket # 221), except for section 4 therein, is DENIED;

Hale's “Motion for Analysis of Government's Original 12/5/02 Recording,” (docket



” Section V° argues that the government's use of a passage from “The White Man’s Bible”

during its closing argument was “horribly prejudicial” and warrants a new tial.
Second, on July 29, 2004, Hale filed a “Motion for Analysis of Government's

Original 12/5/02 Recording,” (docket # 219). The tape recording referred to is of a
conversation between Hale and confidential informant Evola, An initial, draft transcript
furnished to Hale before trial had Evola saying “Well { got your e-mail about the Jew
judge... you wanting his address and all his rats.” In the final transcript furnished to
the jury for illustrative purposes —a transcript agreed to by the defense —the latter half
of the statement is changed to “you wanting his address and the other rats.” Hale
argues that the difference between the sound of “and all his rats” and the phrase “and
all the other rats” is so marked that this change cannot simply be the correction of an
error in the draft transcription. Instead, Hale suspects that the original tape recording

was altered,’ and believes the court should order an analysis to determine whether or

° Section IV merely corrects an error on page 9 of Hale’s fune 24, 2004, motion.
The court GRANTS Hale leave to make this correction.

° In other words, Hale does not dispute that the tape played for the jury did
sound like “the other rats.” Hale suspects that an alteration was made because a change
of “his rats” to “other rats” impacts the issue of whether Hale understood Evola to be
talking about Judge Lefkow, a female. In light of the fact that “the Jew judge ... you
wanting fis address” (emphasis added] remains in the tape, Hale’s suspicion that there
was an alteration appears baseless. Moreover, the use of “his address” makes the
difference between “his rats” and “other rats” unimportant. Thus, even were the court
to find, contrary to the conclusion reached in this memorandum, that Hale’s
supplemental arguments should be considered, there is no reason to order an analysis
of the original tape. The court, however, does ORDER the government to place the
original tape in the court’s custody for preservation, should analysis of the tape become
necessary, or undertaken by Hale at his own expense, at some point in the future.

3


Fourth, on August 31, 2004, Hale filed a document entitled “One Sentence
Offering as to Why No Rational Jury Could Have Found Me Guilty Beyond a
Reasonable Doubt,” (docket # 233), In this document, Hale argues that the evidence
showed that Hale believed that Judge Lefkow was not Jewish, meaning that he could
not possibly have understood Evola’s references to “the Jew rat” to be references to
Judge Lefkow. This argument was available to Hale prior to the filing of the June 24,
2004, motion.

Fifth, on August 31, 2004, Hale file a document called “Recently Discovered
Material in Support of Pending Motion for a New Trial Under Rule 33,” (docket # 234).
This filing pertains to a document Hale recently obtained from his trial attorney, notes
of an interview with potential defense witness Glenn Greenwald. Greenwald is an
attorney who represented Hale’s organization in the past, and the notes indicate that
Greenwald thought that Hale had called another attorney “the Jewish rat.” Hale
believes that Greenwald's testimony should have been used to cast doubt on the
government's theory that Hale understood Evola’s references to the “Jew rat” to mean
Judge Lefkow While Hale himself may have only recently become aware of this
information, it was available to his retained defense counsel prior to trial.

Sixth, on September 23, 2004, Hale filed “Transcript Excerpts Supporting

Pending Motion for a New Trial,” (docket # 238), The excepts pertain to an argument
_

8 On October 8, 2004 (docket entries 240, 241), Hale filed an affidavit and a
declaration by attorney Greenwald indicating that if called as a witness he would have
testified-and would also do so at any new trial—as outlined in this paragraph.

5


# 219), is DENIED, however, the government is ORDERED to place the original tape in
the custody of the court; Hale’s “Motion for Leave to File Amendment to Defendant's
Post-trial Motion to Add a Motion for a New Trial Based Upon Ineffective Assistance of
Counsel,” (docket # 222) is DENIED; Hale’s “One Sentence Offering as to Why No
Rational Jury Could Have Found Me Guilty Beyond a Reasonable Doubt,” (docket

# 233) is DENIED; Hale’s “Recently Discovered Material in Support of Pending Motion
for a New Trial Under Rule 33,” (docket # 234), is DENIED; and Hale’s “The Legal
Impossibility of ‘Inducing’ a Government Informant,” (docket # 239), is DENIED.
Hale’s September 23, 2004, filing entitled “Transcript Excerpts Supporting Pending

Motion for a New Trial” (docket # 238) is allowed.

SO ORDERED.

ENTER: October 21, 2004

JUDGE JAMES T. MOO
NIZED STATES DISTRICT COURT


Mite Ordor Form (06/97)

United States District Court, Northern District of Illinois

Ni of Assigned Judge 7 Sith judge if Oth:
roe Magistrace Judge James T. Moody “than Amigued Judge
CASE NUMBER 03 CR 11 DATE 10/21/2004
CASE United States of America vs. Matthew Hale
TITLE

In the following box (a) indicate the party filing the motion, ¢-g., plaintifY, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.)

(2) a Brief in support of motion due

(3) a Answer brief to motion due____. Reply to answer briefduc___.

(4) 0 Ruling/Hearing on _setfor_ at _

(5) Qo Status hearing[held/continued to] [set for/re-set for]on__—_ set fora

(6) Oo Pretrial conference[held/continued to] (set for/re-set for}on___—ssetfor at.
(7) o Trial[set for/re-set for]on____at_

(8) 0 (Bench/Jury trial] [Hearing] held/continuedto at.

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

COFRCP4(m) C1 Local Rule 41.1 CFRCP41(a\(1) CO FRCP41(a)(2).

ao [Other docket entry] ENTER MEMORANDUM AND ORDER: Government’s motion (Doc 229) to
file instanter response is granted. Hales’s “Supplement to Defendant’s Post-Trial Motion,” (Doc 221), except for
section 4 therein, is denied. Hales’s “Motion for Analysis of Government’s Original 12/5/02 Recording,” (Doc
219) is denied, however, the government is ordered to place the original tape in the custody of the court. Hale’s
“Motion for Leave to file Amendment to Defendant’s Post-trial Motion to Add a Motion for a New Trial Based
Upon Ineffective Assistance of Counsel,” (Doc 222) is denied, Hale’s “One Sentence Offering as to Why No
Rational Jury Could Have Found Mc Guilty Beyond a Reasonable Doubt,” (Doc 233) is denied. Hale's “Recently
Discovered Material in Support of Pending Motion for a New Trial Under Rule 33,” (Doc 234) is denied. Hale’s
“The Legal Impossibility of “Inducing” a Government Informant,” (Doc 239) is denied. Hale’s September 23,
2004, filing entitled “Transcript Excerpts Supporting Pending Motion for a New Trial” (Doc 238) is allowed.

(il) @ [For further detail sce order attached to the original minute order.}

No notices required, advised in open court.

noti red.
No notices requis number of potives

OCT 2 8 2004

dave docketed

Y | Notices mailed by judge's staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AQ 450 form.

ocketing deputy intial

sovzueznod

Copy to dgetmaginrate judge, yet
;

Y date nniled novice

courtroom: }
set sen Te
initials,

J Date/time received in
central Clerk’s Office ‘uillng deputy initials



~ made in Hale’s June 24, 2004, motion, regarding government argument on the Ben
Smith shooting spree. Because this filing does little more than provide record support
for a timely-made argument, the court believes it is not an amendment of, or
supplement to, the existing motion, and may be considered.

Seventh, and last, on September 24, 2004, Hale filed a document entitled “The
Legal Impossibility of ‘Inducing’ a Government Informant,” (docket # 239). In this, Hale
argues that a note from the jury during deliberations indicates that the jury convicted
him for “inducing” Evola to murder Judge Lefkow, and that it is legally impossible to
“induce” a government agent, as that term is used in 18 U.S.C. § 373, the provision Hale
was convicted of violating.

On August 27, 2004, the government filed’ what it designated a “consolidated
response” to Hale’s supplemental post-trial motions, (docket # 230), responding to the
first and second of the filings as numbered above, and to two additional filings the
court has not mentioned, a motion for oral argument on the motion for a judgment of
acquittal, (dockct # 225), and a motion requesting an evidentiary hearing on the motion
for a new trial (docket # 226). The court will discuss these latter two motions in its
separate order resolving Hale's motion for a judgment of acquittal or for a new trial. On
August 31, 2004, the government filed a response (docket # 235) to Hale’s fifth filing,

“Recently Discovered Material in Support of Pending Motion for a New Trial Under

° The government's motion to file this motion instanter (docket # 229) is
GRANTED.



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, —)
Plaintiff, )
)
v. )  No.03 CR 11
) DO
MATTHEW HALE, ) 0 CHETED
Defendant. ) CT 2g 2008

MEMORANDUM AND ORDER

On April 26, 2004, a jury found defendant Matthew Hale guilty on four counts of
a five-count indictment. On June 24, 2004, Hale, at the time represented by retained
counsel Timothy M. Murphy, filed a timely’ motion for a judgment of acquittal
pursuant to FED. R. CrIM. P, 29(c), or alternatively for anew trial pursuant to FED. R.
Crim. P. 33. The court will address that motion in a separate order. The purpose of this
order is to address a number of additional filings by defendant Hale, acting as his own
attorney following his discharge of attorney Murphy? made after the expiration of that

sixty-day period. For the reasons that follow, the court determines that— with the few

1On the day the jury returned its verdicts, Hale requested, and was granted,
sixty days to file any post-trial motions.

2 In a notice dated July 6, 2004, Hale informed the court that he was discharging
Murphy and requesting that he be allowed to represent himself, Hale is a graduate of
an accredited law school. Although he has waged a legal battle to be admitted to
practice in Llinois, he has not been admitted to the bar of illinois or any other state, and
has not practiced law. On August 10, 2004, after holding an evidentiary hearing,
Magistrate Judge Rodovich granted attorney Murphy’s request to withdraw and
granted Hale’s motion requesting to represent himself. Magistrate Judge Rodovich also
ordered the clerk to appoint stand-by counsel for Hale. The clerk did so on
August 23, 2004, appointing attorney Thomas A. Gibbons.
———


* exceptions noted — these filings will be treated as motions to amend Hale's

June 24, 2004, motion, and denied as untimely.
The court briefly summarizes each of the additional filings. First, on

July 19, 2004? Hale filed a “Su pplement to Defendant's Post-Trial Motion,” (docket
# 221).' Sections I and Ill of this document argue that Hale is entitled toa judgment of
acquittal on the charges of soliciting the murder of United States District Judge Joan H.
Lefkow and obstruction of justice via that solicitation, because the government failed to
prove that Hale understood that confidential informant Tony Evola’s references to a
“yar” that needed extermination were references to Judge Lefkow. In Section IL, Hale
argues that, if his motion for an acquittal is denied, he should be granted a new trial
because his defense counsel failed to present the testimony of several critical witnesses
(Hale provides a brief proffer of the testimony of each) and documentary evidence (for
example, showing that in other contexts Hale used inflammatory language similar to
the language which the government used to prove that Hale was soliciting the murder

of Judge Lefkow) that would have placed much of the government's case in doubt.

__

3 Because Hale is in custody, the actual filing date is when Hale placed the
document in the institution’s mail system. For convenience, however, throughout this
order the court refers to the dates the clerk docketed documents as received.

4 The court notes that the substance of the arguments contained in this document
relating to Hale’s arguments in his June 24, 2004, motion, is largely encapsulated in
Hale’s “Reply to Government's Consolidated Responses to Defendant's Post-Trial
Motions,” filed August 25, 2004 (docket # 228). As a result, prejudice is unlikely to occur
from the court's finding that the Supplement itself may not be considered.

2

—————