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Wednesday, 03 December, 2014 04:11:39 AM
Clerk, U.S. District Court, ILCD


LEON DINGLE, JR., et al.,


CASE NO: 12-CR-30098

Hon. Judge Richard Mills
Magistrate Judge Tom


NOW COMES the defendant, LEON DINGLE, JR., by and through his
attorneys, EDWARD M. GENSON and BLAIRE C. DALTON, and
respectfully submits the following in response to the Governments motion to
use leading questions of a witness on direct examination:

Prior to the October 1, 2014 pre-trial hearing, the Government

represented to Dr. Dingles attorneys that it intended to file a motion to

declare Dr. Whitaker as a hostile witness before trial was to commence. In an
effort to apprise the Court of all pre-trial matters and issues, the undersigned
informed the Court of the Governments intentions and the defendants
objections to a premature determination of whether Dr. Whitaker could in
fact be declared a hostile witness before being called to testify in the
Governments case-in-chief.

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The Government now, within days of concluding its case-in-

chief, requests permission from this Court, pursuant to Federal Rule of

Evidence 611(c), to use leading questions on direct examination of Dr.
Whitaker, should the Government choose to call him. The Government seeks
to declare Dr. Whitaker as 1) a witness identified with an adverse party,
and 2) a hostile witness.

In support of its argument that Dr. Whitaker is a witness

identified with an adverse party, namely Dr. Dingle, the Government

suggests that because Dr. Whitaker was the Director of the Illinois
Department of Public Health (IDPH), and was an approving official of a
number of grants awarded to BMA over a three-year span, which occurred
over seven years ago, that Dr. Whitaker should be considered a witness
adverse to the Government and somehow aligned with Dr. Dingle.

During Dr. Whitakers tenure as Director of the IDPH, the

Government highlights two meetings between Dr. Dingle and Dr. Whitaker.
Both of the highlighted meetings related to the same $40,000 grant from
which a $25,000 sponsorship was made to the National Medical Fellowship to
fund multiple medical scholarships to minority students.

The Government further contends that Dr. Whitaker is a

witness identified with an adverse party because he attended a dinner and

show with a group of people, including Dr. Dingle, on one occasion, over seven
years ago.

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The Governments motion not the evidence presented at trial

also represents that Dr. Whitakers recommendation and accreditation of the

work of his Chief of Staff, Quin Golden, somehow establishes a connection
between Dr. Dingle and Dr. Whitaker to the extent that Dr. Whitaker should
be deemed hostile to the Government.

Within the purpose and meaning of Rule 611(c), the Government

has not established, either through the evidence presented at trial or the
declarations contained in its motion, that Dr. Whitaker is a witness
identified with an adverse party.

Upon amending Rule 611(c) to include criminal matters, the

Committee on the Judiciary noted that the deletion of the reference to civil
cases from Rule 611(c) was made to reflect the possibility that in criminal
cases a defendant may be entitled to call witnesses identified with the
government, in which event ... the defendant should be permitted to inquire
with leading questions. H.R.Rep. No. 650, 93d Cong., 2d Sess., reprinted in
1974 U.S.Code Cong. & Admin.News 7051, 7075, 7086. In criminal matters,
witnesses identified with an adverse party applies in the event that the
defense requests to use leading questions in direct examination of a law
enforcement official or other investigating agent in an action brought by the
government against criminal defendants. United States v. Bryant, 461 F.2d
912, 917 (6th Cir. 1972).

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Outside those purposes, the Committee advises that Rule 611(c)

be applied with caution in criminal cases because of the difficulty in

determining when a witness is identified with an adverse party. See
FED.R.EVID. 611(c) (advisory notes).

Dr. Whitaker is not a witness identified with an adverse party

merely because he was the Director of the department that awarded grants
and, on occasion, met with Dr. Dingle in relation to the grant programs.
There has been no evidence or suggestion that Dr. Dingle and Dr. Whitaker
had any resemblance of a relationship outside that involving grant programs
from 2005-2007. There has certainly been no evidence of any close and
personal friendship between Dr. Dingle and Dr. Whitaker from 2008 to the

Moreover, most, if not every Government witness has testified to

having some version of a relationship with Dr. Dingle while working with
him on the grant programs. The Government did not similarly seek to use
leading questions during the direct examination of any other witness based
simply on the fact that the witness had a relationship with Dr. Dingle at
some point in time.

A prior business relationship that occurred over seven years ago

does not establish that a witness is identified with a party adverse to the
Government to the extent permitted and intended under Rule 611(c).

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The Government has similarly failed to establish that Dr.

Whitaker should be considered a hostile witness within the purpose and

meaning of Rule 611(c). In support of its argument, the Government relies on
Dr. Whitakers refusal, upon the advice of his counsel, to answer questions
related to one topic among the hundreds of questions likely posed during his
interview with Government agents. This interview took place after the return
of the indictment in this matter, but while the investigation relating to Quin
Golden was still underway. There is no evidence or allegation that Dr.
Whitaker refused to answer questions regarding Dr. Dingle during his

A year later, Dr. Whitaker, through his counsel, denied the

Governments request to interview Dr. Whitaker for the limited purpose of

asking the same questions Dr. Whitaker had previously been advised not to
answer. Dr. Whitakers counsel did inform the Government that he would
comply with the subpoena to testify at trial and would answer all questions
truthfully. (See Exhibit A Affidavit).

Dr. Whitaker is not a defendant in this matter, nor is he alleged

to be a co-conspirator. He does, however, have the right to retain counsel to

advise him or speak on his behalf should it become necessary. The
Government has made its representations related to its cooperation
agreement with Dr. Whitaker. Dr. Whitakers counsel, although unable to file
his representations, has done the same by way of affidavit. As a professional

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courtesy, defense counsel presented the Affidavit to the Court and made it
available to the Government on October 1, 2014. A courtesy between
attorneys does not establish any sort of alignment between the respective
parties, and certainly does not establish that Dr. Whitaker should now be
considered a witness hostile to the Government.

Under Rule 611(c), the Governments arguments alone cannot

establish whether a witness is hostile or adverse. Leading questions on direct

examination are permitted to develop the witness' testimony and to inquire
of a hostile or adverse witness (emphasis added). FED.R.EVID. 611(c). It has
long been established that in the use of leading questions much must be left
to the sound discretion of the trial judge who sees the witness and can,
therefore, determine in the interest of truth and justice whether the
circumstances justify leading questions to be propounded to a witness by the
party producing him. United States v. Brown, 603 F.2d 1022, 1025-1026 (1st
Cir. 1979), quoting St. Clair v. United States, 154 U.S. 134, 150 (1894); see
also Nutter v. United States, 412 F.2d 178, 183 (9th Cir. 1969); Lerma v.
United States, 387 F.2d 187, 190 (8th Cir. 1968).

It is for this Court to determine whether or not Dr. Whitaker

should properly be considered a hostile witness. The Governments

assertions, the affidavit of counsel for Dr. Whitaker, nor the undersigned can
establish whether Dr. Whitaker is in fact a hostile witness. Should the
Government decide to call Dr. Whitaker, it is for this Honorable Court to

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determine through its own observations of the witness, whether he or she

exhibits evasive, reluctant, uncooperative or hostile demeanor during his or
her testimony.

Under penalty or perjury, Dr. Whitakers counsel has sworn that

his client will appear to testify, if called, and that he will answer all questions
the Government may ask. The existence of a cooperation agreement between
the Government and its witnesses, or any claim that a witness has failed to
cooperate as the Government requested, does not compel any Court to find
that a witness is hostile. That sort of premise would permit prosecutors and
law enforcement to threaten cooperating witnesses with similar arguments,
should the witness not provide the answers or information requested. That is
precisely the reason why it is within the Courts discretion to observe the
witness and make an independent determination of hostility or lack thereof.
WHEREFORE, the defendant, Leon Dingle Jr., respectfully requests
that this Honorable Court deny the Governments motion to use leading
questions on direct examination of Dr. Whitaker, premature of Dr.
Whitakers testimony and this Courts independent determination of the
Respectfully submitted,
/s Blaire C. Dalton
An Attorney for Leon Dingle, Jr.

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Edward M. Genson
Blaire C. Dalton
53 West Jackson Boulevard, Ste. 1420
Chicago, IL 60604
(312) 726-9015

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I, Blaire C. Dalton, an attorney for Defendant, hereby certify that on
this, the 3rd day of December, 2014, I filed the above-described document on
the CM-ECF system of the United States District Court for the Central
District of Illinois, which constitutes service of the same.

Respectfully submitted,

Blaire C. Dalton