government has replied. The majority of these motions either
resulted in government compliance or are amenable to summary
resolution, and they have been so disposed in a separate
order, of this date. The remaining motions are considered
seriatim as set forth below.
Initially, however, the court notes that certain of the
defendants have filed motions to adopt the filings of the
other defendants. These motions have previously been granted.
Accordingly, in resolving and discussing the merits of the
motions that follow, the court will consider them
collectively, without regard to the individual defendant who
may have raised the issue.
I. MOTIONS TO DISMISS THE INDICTMENT
Defendants have raised several specific challenges to the
RICO count as applied to them. In particular, they argue that
the Board of Tax Appeals cannot be considered an "enterprise"
within the meaning of the statute. In addition, certain of the
defendants who are not actually employees of the Board submit
that they are not "associated with" the enterprise as
contemplated by the legislation. Neither of these arguments
can be sustained.
The question of whether the Board is an "enterprise" as
defined by 18 U.S.C. § 1961(4) already has been settled by the
Seventh Circuit. In United States v. Grzywacz, 603 F.2d 682
(7th Cir. 1979), the Court of Appeals held that § 1961(4)
contemplated that public entities may constitute enterprises
through which racketeering is conducted, 603 F.2d at 686. The
Board of Appeals meets this description and as such,
defendants' claims are without merit.
Moreover, in Grzywacz, the panel emphasized repeatedly that
in enacting RICO, Congress "intended to frame a widely
encompassing enactment to protect both the public and private
sectors from the pervasive influences of racketeering." 603
F.2d at 682. In view of the Seventh Circuit's expansive
perspective regarding RICO, the court is persuaded that
defendant's suggested interpretation of the meaning of
"associated with" is too narrow. Such a construction conflicts
with not only the explicit congressional mandate to broadly
construe the legislation but also with the plain meaning of the
term "associate."*fn3 Still further, the language of the
statute itself at least inferentially defines "associated with"
as "direct or indirect participation in the conduct of the
enterprise." 18 U.S.C. § 1962(e)*fn4. Accordingly, it is held
that even those defendants not directly employed by the Board
of Appeals are within the ambit of the statute since by
soliciting and accepting property assessment complaints they
were "associated with" this enterprise.
In their motions to dismiss, defendants have raised still
other objections to the indictment. For example, defendants
claim that the indictment must be dismissed because it fails
to contain a "plain, concise and definite written statement"
of the essential facts constituting the defenses charged in
violation of Rule 7(c) of the Federal Rules and Criminal
Procedure ("Fed.R.Crim.Pro."). Defendants also contend that
the charges in the indictment were duplicitous and are thus
infirm under the principles of Kotteakos v. United States,
328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
In the court's view, however, the indictment may be
sustained as written. It is a matter of hornbook law that the
prohibitions against vague and duplicitous indictments serve
to protect the defendants' rights guaranteed by the Sixth and
Fifth Amendments to (1) be adequately informed of the nature
and cause of the charges against them so that they can prepare
their defenses; and (2) be protected against multiple
prosecutions for the same offense. United States v. Ray,
514 F.2d 418 (7th Cir. 1975); United States v. Climatemp, Inc.,
482 F. Supp. 376, 384 (N.D.Ill. 1979).
An examination of the indictment indicates that the
standards of Fed.R.Crim.Pro. 7(c) have been satisfied here.
The essential facts and actions of the defendants have been
set forth. And the indictment sufficiently evinces the
elements which comprise the mail fraud and RICO violations. In
short, defendants have been provided with enough information
both to inform them of the nature of the charges against them
and to shield them from the risk of double jeopardy.
Nor is the indictment multiplicitous. The fact that two
separate substantive offenses — RICO and mail fraud — have
been alleged from a single conspiratorial scheme does not flaw
the indictment. As the court noted in United States v. Brighton
Bldg. & Maintenance Co., 435 F. Supp. 222, 229 (N.D.Ill. 1977),
upholding an indictment charging criminal Sherman Act and mail
It is not rare that one series of actions by a
defendant can give rise to more than one
violation of the laws of a jurisdiction and each
violation can be punished.
Moreover, the government's decision to prosecute each
individual fraudulent property assessment complaint as a
separate count of the indictment is not improper. The Court of
Appeals recognized in United States v. Joyce, 499 F.2d 9, 18
(7th Cir. 1974), that each distinct mailing involved in the
alleged scheme may support a separate mail fraud charge. See
also, United States v. Bush, 522 F.2d 641, 649 (7th Cir. 1975);
United States v. Brighton Bldg. & Maintenance Co., supra at 229
Finally, defendants challenge the indictment insofar as it
alleges mail fraud against them under the facts of this case.
When defendants' arguments are consolidated, they essentially
raise two points. First, because Illinois law requires the
mailing of property assessment bills, the use of the mails
could not have been, under any circumstances, for the purpose
of executing the fraud. Second, since the scheme did not
depend upon receipt of the fraudulent bills by the property
owners, the scheme was complete prior to the mailings and thus
the mailings were not in furtherance of the fraud. Of these
two arguments, the former is legally incorrect and the latter
is factually unsound.
Initially, the mere fact that the mailings were required by
state law does not necessarily operate to take the instant
scheme from the reach of 18 U.S.C. § 1341. United States v.
Feinberg, 535 F.2d 1004, 1009 (7th Cir. 1976). Moreover, the
scheme as described by the indictment was far from complete
prior to the deposit of the assessment notices in the U.S.
mail. Rather, as the government points out, the conclusion of
the scheme was dependent on payments by the property owners
who, in turn, tendered no money until these notices were
received. And, the failure to pay by any property owner would
have resulted in the cancellation of the reduced assessment.
In addition, the government has charged defendants with
participating in a scheme intended to defraud the citizens of
Cook County both of their rights to the loyal, faithful and
honest services of the employees of the Board of Appeals as
well as their rights to have the business of the Board
conducted honestly, impartially and free from corruption. So
defined, the fraud could not possibly have been complete prior
to the mailings since the mailings were part of defendants"
responsibilities in the discharge
of their duties at the Board. Accordingly, for the reasons
stated above, all of the motions to dismiss the indictment are
II. MOTIONS FOR A BILL OF PARTICULARS
Virtually all of the defendants in this case originally
filed requests for a bill of particulars pursuant to Rule 7(f)
Fed.R.Crim.Pro. Many of the particulars requested, however
(especially those in the nature of an explanation of the
indictment), have been answered voluntarily by the
prosecution. But on certain matters the parties remain at
loggerheads and these issues are addressed herein.
In this as in other cases the functions of a bill of
particulars under Rule 7(f) are threefold. It serves to
provide the defendants with those additional facts necessary
to prepare a proper defense. The bill prevents prejudicial
surprise at trial and may protect defendants from possible
double jeopardy. United States v. Climatemp, Inc., 482 F. Supp. 376,
389 (N.D.Ill. 1979); United States v. Mahany, 305 F. Supp. 1205,
1209 (N.D.Ill. 1969). Applications for bills of
particulars are addressed to the sound discretion of the trial
court, Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71
L.Ed. 545 (1927), and that discretion will not be reversed
absent a judicial findings that substantial rights of the
defendant were prejudiced by actual surprise at trial. United
States v. Mackey, 551 F.2d 967 (5th Cir. 1977). At least one
result of the wide latitude afforded trial courts is that since
the exercise of this discretion is fact-sensitive, few concrete
standards governing these motions have developed and the
available precedent is of limited utility.
This, of course, is not to say that the court is totally
without guidance in resolving the instant motion. Certain
factors, including the complexity of the offense charged, the
clarity of the indictment and the degree of discovery
available to the defendant without the bill are relevant to
this issue. See e.g., United States v. Thevis, 474 F. Supp. 117
(N.D.Ga. 1979); United States v. Climatemp, Inc., supra at 389;
United States v. Magaw, 425 F. Supp. 636 (E.D.Wis. 1977).
Moreover, defendants cannot use a bill of particulars to
discover the theory or evidentiary details of the government's
case. United States v. Climatemp, Inc., supra at 390.
Perhaps the most useful summary of the inquiry posed by a
motion for a bill of particulars was stated by the court in
United States v. Thevis, supra, where the court noted:
In essence, the question presented by a motion
for a Bill of Particulars requires a two part
analysis. If the particular request is such that
on its face its nondisclosure until trial would
result in prejudicial surprise to the defendant
or the preclusion of an opportunity for
meaningful defense preparation, then the request
must be granted. [Citations omitted].
On the other hand, if the requested particular
is not such that the Court can determine on its
own that nondisclosure until trial would result
in prejudicial surprise or the preclusion of an
opportunity for meaningful defense preparation,
then the Court must balance the competing
interests of the defense and the government.
Where there is no prima facie case for
disclosure, the defendant has the burden of
showing by brief, affidavit or otherwise that
nondisclosure would lead to prejudicial surprise
or the obviation of opportunities for meaningful
defense preparation. [Citation omitted].
United States v. Thevis, 474 F. Supp. at 123-124.
When the considerations outlined above are applied to the
circumstances here, the conclusion inures that defendants'
motions should be denied. First, it is noted that, even when
viewed in their most favorable light, the requested
particulars skirt the fine line between permissible inquiries
and improper attempts to discover the evidentiary details of
the prosecution's case. For instance, representative of the
particulars sought in this case is the following excerpt from
the motion of defendant Erskine.
9. With respect to Count One, Paragraph 16, provide the
(a) Identify the property owners who paid fees to
(b) State where, when and in what manner the
property owners paid fees to the runners.
(c) State where, when and in what manner the
runners would split the fee with Thomas Lavin and
Not only, however, are the particulars sought overly
detailed, but also they are unnecessary in this instance. As
noted earlier, the present indictment amply sets forth a
description of the acts and circumstances that underlie the
charges against defendants. As such, this is not a case where
absent a bill of particulars defendants would largely be in
the dark as to the evidence to be presented against them.
Finally, and most importantly, the broad discovery already
afforded defendants voluntarily by the prosecution virtually
vitiates any meaningful possibility of undue surprise at
trial. The government has represented that it previously had
made available to defendants all statements and documents
relevant to this case. Subsequent to the indictment, the
government turned over all statements of co-defendants and all
interviews by the FBI of any relating in any way to each of
the defendants. Also, the government has made available for
inspection all documentary evidence in its possession,
including the complaint folders from the Board of Appeals
which indicate the owner of the property, the name of the
complainant, the complainant's attorney and various
information about the past and current assessed valuation of
the property. Finally, the prosecution has disclosed to the
defense the names of all co-conspirators and co-schemers,
whether indicted or not.
The inference to be drawn from the disclosure previously
made on a voluntary basis is that while the bills sought here
might possibly be helpful in preparing a defense, they are not
at all necessary. In essence, defendants have failed to
demonstrate, by affidavit or memoranda, that their own
investigation based on the evidence available to them would
not be sufficient to prepare an adequate defense or protect
them from prejudicial surprise at trial. United States v.
Thevis, 474 F. Supp. 117, 124 (N.D.Ga. 1979). Accordingly, the
motions for bills of particulars are denied.
III. MOTIONS TO STRIKE
Defendants have moved to strike paragraph 18 of Count 1 of
the indictment. This particular paragraph reads as follows:
18. It was further part of the conspiracy that
property assessments were corruptly reduced in
over two thousand cases for a total reduction in
property assessments of approximately thirty
Fed.R.Crim.Pro. 7(d) permits the court to strike, as
surplusage, "immaterial and irrelevant allegations . . . which
may, however, be prejudicial." United States v. Climatemp,
Inc., supra, at 391, quoting, Advisory Committee Note to
Fed.R.Crim.Pro. 7(d). While language in the indictment which
covers information which the government, in good faith, intends
to prove at trial cannot be stricken as surplusage, no matter
how prejudicial it may be, 482 F. Supp. at 391, it is apparent
that the government does not fully intend to prove the
allegations of paragraph 18.