Warren shortly before Mr. Donoghue took the stand. Mr. Warren did
not request a continuance or any other remedy at the time, and had
the opportunity to fully cross-examine Mr. Donoghue. See id. Even
now, Mr. Warren makes no argument as to how he would have
questioned Mr. Donoghue differently with prior knowledge of the
notes. Even if the government erred in not producing Mr.
Donoghue’s notes until just before his testimony, that error does
not rise to the level of a constitutional harm and does not warrant
a new trial.

Mr. Warren also argues that he was denied a fair trial because
the government was permitted to question Mr. Donoghue about the
reasons underlying dismissal of earlier charges against Mr.
Warren.+ Mr. Warren argues that this testimony was irrelevant and
prejudicial, because he had never been informed of the government’s
reasons for dismissing the charges. During the pretrial
conference, I made it clear to Mr. Warren and his counsel that if
the issue of the New York charges and subsequent dismissal was
raised, I would permit the government to present witnesses to
explain the reasoning behind its actions. Not only did Mr.
Warren’s counsel fail to object at that time, counsel stated that
he “would love them to” present such a witness to allow the jury to

evaluate the reasonableness of the government’s explanation. Mr.

'Mr. Warren was charged for similar conduct in New York,

but the charges were dismissed in October 2002.

4


[sic] do anything on behalf of the Secret Service. (Tr.p. 53)
Since there is no inconsistency Mr. Warren was not prejudiced by my
ruling at trial.

Mr. Warren finally argues that a number of jury issues
deprived him of a fair trial. Mr, Warren argues that the Federal
Rules of Criminal Procedure do not allow for special verdicts, such
as that rendered by the jury here. Special verdicts are permitted
in federal criminal trials. United States v. Smith, 938 F.2d 69,
70 (7 Cir. 1991). Mr Warren also claims that several of the
instructions given to the jury denied him a fair trial, including
instructions that did not state the government had to disprove Mr.
Warren’s defense of public authority beyond a reasonable doubt and
an admonishment to reach a verdict without considering potential
sentences. None of these instructions deprived Mr. Warren of a
fair trial. The government need not disprove Mr. Warren’s defense
of public authority beyond a reasonable doubt. Patterson v. New
York, 432 U.S. 197, 210 (1977) (upholding New York requirement that
defendant prove affirmative defense). It was also proper to
instruct the jury to disregard potential sentences while reaching

its verdict. Shannon v. United States, 512 U.S. 573, 579 (1994).

ENT lune 2 Buhl

Elaine E. Bucklo
United States District Judge

Dated: November ¥ , 2004


unspecific reference is not enough to evidence the existence of the
documents Mr. Warren seeks.

Mr. Warren next argues that the failure of the prosecution to
disclose notes of a telephone conversation with Mr. Warren made by
Assistant United States Attorney Richard Donoghue until just prior
to Mr. Donoghue’s testimony warrants a new trial. On November 5,
2002, Mr. Warren apparently called Mr. Donoghue, who subsequently
made notes of the conversation for an on-going investigation. Mr.
Warren states that the notes were discoverable under Rule
16(a) (1) (A), which provides that the government must disclose, upon
request, any statement made by the defendant in response to
interrogation by a known government agent if the government intends
to use the statement at trial. sp. R. Crim. P. 16(a) (1) (A). Rule
16 provides that the government shall disclose

the substance of any relevant oral statement made by the

defendant, before or after arrest, in response to

interrogation by a person the defendant knew was a government
agent if the government intends to use the statement at trial.
Fep. R. Crim. P. 16(a) (1) (A).

Mr. Donoghue’s notes of the telephone conversation are
arguably material to be produced under Rule 16. However, prejudice
for belatedly producing such material only exists when the
defendant is “unduly surprised and lacks an adequate opportunity to
prepare a defense, or when the violation substantially influences

the jury.” United States v. Stevens, No, 03-1104, 2004 WL 1853718

(7 Cir. Aug. 19, 2004). Mr. Donoghue’s notes were provided to Mr.


Warren wanted to present his assumptions resulting from the
dismissal; it was reasonable to allow the government a chance to
explain its actions.

Mr. Warren next argues that he was denied a fair trial by my
admonition during defense counsel’s closing argument that the jury
was to disregard counsel’s statement about reasonable doubt. This
argument misconstrues counsel’s statement. During closing
arguments, defense counsel stated

But if you’ve got any doubt about whether or not he [Mr.

Warren] was deactivated, the law says and the Judge will

[cut off by objection]

After a brief sidebar during which I reminded counsel that
“reasonable doubt” is not defined as “any doubt,” I instructed the
jury to disregard defense counsel’s last statement regarding the
law. When the law is misstated during a closing argument, it is
proper for the court to instruct the jury to disregard the
misstatement. See United States v. Fruth, 36 F.3d. 649, 654 (7
Cir. 1994).

Mr. Warren contends that he was prevented from impeaching a
government witness with a prior inconsistent statement, depriving
him of a fair trial. At trial, Mr. Warren sought to impeach Mathew
Quinn with a statement Mr. Quinn had made during a telephone
interview with counsel for Mr. Warren regarding the length of time
Mr. Quinn oversaw Mr. Warren’s confidential informant activities.

I sustained an objection to use of the unsworn telephone interview.


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

f As J i e
serge Magistrate Judge Elaine B. Bucklo “Than Asigned Judge
CASE NUMBER 03 CR 113 -2 DATE 11/8/2004
CASE USA vs. Warren
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd Qo Filed motion of [ use listing in “Motion” box above.]

(2) q Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue____

(4) o Ruling/Hearingon__—_ssetfor___—_att

(5) oOo Status hearing[held/continued to] [set for/re-set for] on setfor at.

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor_ ss at_—

Q) Oo Trial[set for/re-set for]on at

(8) a [Bench/Jury trial] [Hearing] held/continued to__at

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

OFRCP4(m) (OLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

(10) MW [Otherdocket entry] Enter Memorandum Opinion and Order denying defendant’s motion for a new
trial.

ab [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2

No notices required. umber of notices

Notices mailed by judge’s staff.

NOV 0 9 2004

Notified counsel by telephone.
Dockeling to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
MPI deputy’s
initials

Date/lime received in: J

central Clerk's Office moeiling deputy initials



(Tr.p. 50-51) A full transcript of the interview shows that the
statement (page 39 of the transcript of the interview) is entirely
consistent with Mr. Quinn’s testimony at trial on this point, but
Mr. Warren does not appear to be arguing otherwise. (Tr.p. 47) In
his post-trial motion for a new trial, Mr. Warren argues that he
was not allowed to impeach Mr. Quinn’s testimony at trial that “he
told Warren he was deactivated.” Defendant’s Motion for a New
Trial at 6. At that point, I did not have a transcript of the
testimony but I assumed that Mr. Warren was accurately reporting
both the trial testimony and the telephone interview, and it
appeared there was an inconsistency that I had not allowed Mr.
Warren to question Mr. Quinn about since a partial transcript of
the pretrial telephone interview, quoted by Mr. Warren in his
motion, quoted Mr. Quinn stating that he had never told Mr. Warren

he was “deactivated.”

A comparison of the actual transcript of
the interview and the trial transcript shows there was no
inconsistency. At trial, Mr. Quinn testified that he would not use
the word “deactivation,” although he had told Mr. Warren he was no
longer working for the government. (Tr.p. 57, 53, 55) In the

telephone interview, Mr. Quinn stated that he never used the word

“deactivate” but he did “personally tell him he is to no longer to

2 As a result, I requested supplementary briefing on the
issue, indicating that if the stated discrepancy reported in the
motion were accurate the government would need to show that my
refusal to allow the “impeachment” was harmless.

6


DUGETED
IN THE UNITED STATES DISTRICT COURT NOV 6 § 2004

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
No. 03 CR 113

Vv.

TONY L. WARREN,

Defendant.

MEMORANDUM OPINION AND ORDER

On July 16, 2004, defendant Tony L. Warren was convicted by a
jury on four counts of bank fraud, two counts of possessing forged
securities, and five counts of transportation of stolen goods/
securities. Mr. Warren moves for a new trial on a number of
grounds. Rule 33 allows motions for a new trial where required by
the interests of justice. FeD. R. Crim. P. 33. However, such
motions are disfavored, and properly granted only in the most
extreme cases. United States v. Linwood, 142 F.3d 418, 422 (7
Cir. 1998). Mr. Warren presents eight alleged errors, none of
which justify the extraordinary remedy of a new trial. The motion
is denied.

Mr. Warren first argues that he is entitled to a new trial
because the government failed to turn over documents pursuant to
Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Mr. Warren
seeks disclosure of any documents the United States Secret Service

maintains in relation to the deactivation of confidential

1/9


informants, stating that such information is” crucial to Mr.
Warren’s defense of public authority. The government has
steadfastly denied the existence of any such documents. Before I
may grant a new trial for a Brady violation, Mr. Warren must
establish that “(1) the prosecution suppressed evidence; (2) the
evidence allegedly was favorable to the defense; and (3) the
evidence was material to an issue at trial.” United States v.
Reyes, 270 F.3d 1158, 1166 (7° Cir. 2001).

Mr. Warren contends that the government has suppressed
evidence which should have been disclosed pursuant to Brady.
However, Mr. Warren presents no evidence that the documents he is
seeking - deactivation forms for Secret Service confidential
informants - even exist. The government continues to deny that
such a form exists, submitting the affidavit of Special Agent
Douglas Farrell in support. The government further asserts that
any notation or memos specific to Mr. Warren were destroyed in the
attack on the World Trade Center on September 11, 2001. Mr. Warren
rests his contention that the documents do exist on Mr. Farrell’s
earlier reference to the formal deactivation of Mr. Warren, stating
that such phrasing implies that form documents for that purpose do
exist. In the face of the government’s steadfast denial, as well
as Mr. Warren’s failure to specifically question Special Agent

Matthew Quinn about the existence of such documents at trial, this