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United States v. Andreas - 216 F.3d 645 (7th Cir. 2000)


The use of tape recordings made by a participant to the conversation who was acting under color of law is allowed by 18 U.S.C.S. § 2511(2)(c).


Defendants Michael D. Andreas and Terrance S. Wilson were executives at Archer Daniels Midland Company (“ADM”), an Illinois-based agriculture processing company. They were charged with and convicted of conspiracy to restrain trade; they were sentenced to 24 months’ in prison. At trial in federal district court, tape recordings obtained by defendant Mark E. Whitacre, another ADM executive who ultimately became an informant for the FBI, were used as evidence against Andreas and Wilson. In taking the recordings, Whitacre was specifically instructed by the FBI to only record conversations relevant to the conspiracy. On appeal, Andreas and Wilson argued that the admission of the tape recordings violated their right to due process because the FBI and Whitacre engaged in “selective taping” and destroyed exculpatory recordings. On cross-appeal, the Government argued that the sentences imposed on Andreas and Wilson were inadequate.


Were the tape recordings, taken by co-defendant Whitacre under the instructions of the FBI, admissible as evidence against Andreas and Wilson?




The court of appeals affirmed the convictions of Andreas and Wilson and remanded the case to the district court for resentencing. The court ruled that because the Government instructed Whitacre on what type of conversation to record, supplied him with taping equipment and tapes, instructed him on the proper use of the equipment and met with him regularly to discuss developments in the conspiracy and collect the tapes, the evidence was sufficient to prove that he, as an informant, acted at the direction of the FBI in gathering the tapes, and therefore acted under color of law. Thus, the court concluded, pursuant to 18 U.S.C.S. § 2511(2)(c), the tape recordings were admissible against Andreas and Wilson. In addition, the court agreed with the Government that Andreas and Wilson should have received longer sentences for their leadership roles in the conspiracy. The court found Andreas used coercive force to lead the conspiracy, and Wilson engaged in the conspiracy by running the meetings and speaking for ADM, and thus the district court’s denial of sentence enhancements was clearly erroneous.

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