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March 16, 1983


The opinion of the court was delivered by: William T. Hart, District Judge.


The August 1982 Grand Jury returned a seven count indictment against the defendants John Gervasi ("Gervasi"), Michael Ettinger ("Ettinger"), and Charles Soteras ("Soteras"), charging violations of 18 U.S.C. § 371, 1343 and 1952. Gervasi and Ettinger are attorneys admitted to practice in the State of Illinois. In 1977, Soteras was a defendant in a criminal case in the Circuit Court of Cook County, charged with car theft. Gervasi and Ettinger represented Soteras on the car theft charge.

The federal indictment alleges that the three defendants conspired to bribe a police officer, Daniel Furay ("Furay"), to arrange for the dismissal of the car theft charges against Soteras. The defendants have filed a number of pretrial motions attacking the indictment, and also have moved to suppress key evidence in the case. All of the parties have filed excellent briefs in support of their positions. The Court rules on these motions as follows.

I. Vindictive Prosecution

A. Facts

The defendants have moved to dismiss the indictment on grounds of vindictive prosecution. The facts are complex, and present a nest of Chinese boxes composed of three separate prosecutions. The Court describes them here in as brief a fashion as possible.*fn1

Soteras was charged with car theft in October, 1977. One of the arresting officers was Furay. It is alleged that shortly after the arrest, attorney Gervasi approached Furay to discuss the Soteras case. Furay believed that Gervasi might offer a bribe, and contacted the office of the Cook County State's Attorney ("state's attorney").

During the next two months, in-person meetings and telephone conversations between Furay and Gervasi, and telephone conversations between Furay and Ettinger, were overheard and transcribed by court reporters and agents of the state's attorney. The state's attorney did not seek a court order authorizing the transcription of these conversations for two reasons: (1) the assistant state's attorney ("ASA") spearheading the investigation believed that the method employed (overhearing the telephone conversations with the mouthpiece of the telephone removed) did not violate the state eavesdropping law; and (2) Gervasi was being considered at the time for a position as an associate circuit judge of Cook County, and the ASAs feared the undercover operation might be disclosed if they approached a sitting circuit judge for authorization.

As a result of the investigation, Gervasi and Ettinger were indicted in February, 1978 by a Cook County grand jury, and charged with eleven counts of bribery and conspiracy. They faced a maximum total sentence of 59 years incarceration.

The Honorable R. Eugene Pincham, circuit court judge, presided over the case. Gervasi and Ettinger moved to suppress evidence of the overheard and transcribed conversations with Furay, and Judge Pincham granted the motion. The state appealed the ruling, and the appellate court affirmed in part and remanded in part. People v. Gervasi, 90 Ill.App.3d 1117, 46 Ill.Dec. 369, 414 N.E.2d 91 (1st Dist. 1980). The state further appealed this decision, and in April, 1982, the Illinois Supreme Court affirmed in part and reversed in part. People v. Gervasi, 89 Ill.2d 522, 61 Ill.Dec. 515, 434 N.E.2d 1112 (1982).

In its decision, the court held that since "one party to the conversations had consented to the monitoring, neither the Federal Constitution, nor the constitution of this State was offended." 61 Ill.Dec. at 517-518, 434 N.E.2d at 1114-15. However, the court also held that the Illinois Eavesdropping Statute, Ill.Rev.Stat. 1977, ch. 38, §§ 14-1 and 14-5, had been violated and evidence obtained in violation of Illinois law had to be suppressed. The effect of the rulings was to make inadmissible the bulk of the state's evidence.

The case was remanded to the circuit court for trial. Since the defendants had requested a bench trial, their inalienable right under Illinois law, Judge Pincham was to be the factfinder. On August 25, 1982, five days before the case was to be called for trial, the state moved for clarification of Judge Pincham's earlier suppression order. The ASAs wished to determine whether the suppressed materials could be used to prepare witnesses for trial, and could be used at trial to refresh witnesses' recollections of the events which had taken place nearly five years before. Judge Pincham ruled that the suppressed evidence could not be used for such purposes. The state did not seek leave to appeal.

The ASAs thereupon contacted the federal prosecutors to discuss the case. The federal prosecutors were told that, given Judge Pincham's rulings, in the opinion of the ASAs the state case against Gervasi and Ettinger was unproveable. The federal prosecutors studied the state prosecution file, and attempted to obtain additional information through federal grand jury subpoenas but were unable to do so.

After further consideration, the federal prosecutors decided that there was a jurisdictional basis to proceed with a federal prosecution and that such a prosecution was warranted. The evidence obtained from the state was presented to a federal grand jury, and on September 14, 1982 an indictment was returned under which the defendants faced a maximum total sentence of 35 years incarceration. The state had moved before Judge Pincham to nolle prosse the state charges, which motion was granted, three hours earlier. The federal statute of limitations would have expired on November 28, 1982, ten weeks after the federal indictment was handed down.

The defendants presented to this Court exhibits and argument to the effect that in numerous recent instances the state's attorney has dropped state prosecutions before Judge Pincham in favor of federal prosecutions for the same essential conduct. Further, the defendants charged that in one case the state's attorney brought an unprecedented motion designed to force Judge Pincham to recuse himself. The motivation of the state's attorney, according to the defendants, is to take criminal cases away from Judge Pincham because he has the reputation of being a "defendant's judge."

The defendants allege several theories in support of the motion to dismiss for vindictive prosecution:

  1. The federal prosecution was designed and motivated
  to penalize these defendants for their state court
  success in exercising their statutory and
  constitutional rights.
  2. The institution of a federal prosecution under
  such circumstances will deter other defendants from
  exercising their rights.
  3. The prosecution is an attempt to avoid and make
  meaningless these defendants' rights to the greater
  procedural and substantive protections afforded by
  Illinois law, including the right to a trial by the
  court without a jury, and the protection of the more
  stringent state standards as to the admissibility of
  overheard conversations.
  4. The prosecution is an attack on the integrity of
  the judiciary of the Circuit Court of Cook County.
  5. The prosecution of these defendants now in federal
  court, after they have run the gauntlet for five
  years in state court, is inherently unfair and a
  violation of due process.

B. Presumptions and Procedures

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court held that "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation `of the most basic sort.'" United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982), quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). In Pearce the Court found the appearance of judicial vindictiveness when a defendant, having successfully won a new trial on appeal, received a greater sentence upon retrial and conviction. Blackledge was a case of the appearance of prosecutorial vindictiveness where a defendant was charged with a higher offense upon his exercise of his state statutory right to a trial de novo after a conviction in an inferior court.

The most recent statement by the Supreme Court on the issue of prosecutorial vindictiveness came in United States v. Goodwin, supra. In Goodwin, the defendant initially was charged with a federal misdemeanor. After exercising his right to trial by jury in the district court rather than trial to a magistrate (who at that time was not empowered to preside over a jury), a different prosecutor reviewed the file and obtained a felony indictment from a grand jury. The defendant was convicted of the felony charge, and on appeal asked that the felony conviction be reversed on grounds of prosecutorial vindictiveness.

The United States Court of Appeals for the Fourth Circuit reversed the felony conviction, finding that there was an appearance of prosecutorial vindictiveness in the government's raising the charges after the defendant demanded a trial by jury. 637 F.2d 250 (4th Cir. 1981). The court found a due process violation even though on the record, it "readily conclude[d] that the prosecutor did not act with actual vindictiveness in seeking a felony indictment." Id. at 252.

The Supreme Court reversed. At the outset, the Court said: "This case involves presumptions." 102 S.Ct. 2485, 2487. Goodwin was held to be distinguishable from Blackledge. In Blackledge, the prosecution "upped the ante" by raising the charges upon the successful exercise, after a complete trial, of the defendant's right to appeal. In Goodwin, the heavier charges were brought in a pre-trial setting after the defendant demanded a jury. The Court noted that

  a defendant before trial is expected to invoke
  procedural rights that inevitably impose some
  "burden" on the prosecutor. Defense counsel routinely
  file pretrial motions to suppress evidence; to
  challenge the sufficiency and form of an indictment;
  to plead an affirmative defense; to request
  psychiatric services; to obtain access to Government
  files; to be tried by jury. It is unrealistic to
  assume that a prosecutor's probable response to such
  motions is to seek to penalize and to deter. The
  invocation of procedural rights is an integral part
  of the adversary process in which our criminal
  justice system operates.

Id. 102 S.Ct. at 2493 (emphasis added).

The Court found that no presumption of prosecutorial vindictiveness would lie in Goodwin because the facts did not "pose a realistic likelihood of `vindictiveness.'" Id. 102 S.Ct. at 2494, quoting Blackledge, supra, 417 U.S. at 27, 94 S.Ct. at 2102. Further, the Court set forth standards for deciding all questions of prosecutorial vindictiveness. If a presumption does lie (as it did in Pearce and Blackledge), the offending party (the sentencing judge in Pearce; the prosecutor in Blackledge) must come forward with objective evidence to rebut the presumption of vindictiveness. Goodwin, supra, 102 S.Ct. at 2489, 2490 n. 8. If a presumption does not lie (as in Bordenkircher, and Goodwin itself), then the defendant must come forward with objective evidence proving "that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do." Id. at 2494. See also Id. at 2492 n. 12; 2494 n. 19. Since in Goodwin no presumption would lie and the Fourth Circuit found no "actual vindictiveness", no due process violation was established.

In an unpublished Order of January 26, 1983, this Court granted defendants' request for a hearing on the motion to dismiss the indictment on grounds of prosecutorial vindictiveness. In this Order, the Court laid out ground rules for the hearing. First, the Court held that the facts presented in the briefs submitted by the parties showed that no presumption of prosecutorial vindictiveness would lie in this case. Two independent sovereigns — the state of Illinois and the United States — brought distinct prosecutions. Each sovereign had the power to make prosecutorial decisions without regard to the decision of the co-existing sovereign. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). And see United States v. DeMichael, 692 F.2d 1059, 1061-62 (7th Cir. 1982) (no reasonable likelihood of prosecutorial vindictiveness where separate sovereigns institute their own prosecutions); United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981) (the involvement of separate sovereigns tends to negate a vindictive prosecution claim). And compare Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (possibility of vindictiveness de minimis when a new sentence is imposed by different jury upon retrial); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (possibility of vindictiveness does not inhere where superior court imposes more severe sentence after conviction in trial de novo; separate sentencing judges negates likelihood of vindictiveness).

Further, the "response" to the defendants' motion to suppress occurred pre-trial, cf. Goodwin, supra, 102 S.Ct. at 2493; and the maximum penalty the defendants faced on the federal charges was less than that under the state indictment. In sum, the facts do not pose a realistic likelihood of vindictiveness. Blackledge.

Second, the Court instructed that the defendants, who labored without a presumption in their favor, would have the burden of persuasion on the motion and that they would have to tender objective evidence to prove that actual vindictiveness motivated the prosecutor. Goodwin, supra, at 2494 n. 19. The Court stated that at the hearing on the motion, "the parties will not be permitted to probe the subjective motives of those instigating the instant prosecution."*fn3

C. Actual Vindictiveness

The defendants argue that the indictment in this cause should be dismissed on grounds of prosecutorial vindictiveness. At the hearing in this matter, defense counsel made clear to the Court that their argument is not with the counsel for the federal government in this case, who they believe to be most honorable and ethical attorneys. Instead, they claim that the assistant state's attorneys have acted outrageously, have punished the defendants for their assertion of their statutory and constitutional rights, and have broken the law in their attempts to see these defendants convicted. In support of their motion, the defendants rely on United States v. Krezdorn, 693 F.2d 1221 (5th Cir. 1982); and United States v. Burt, 619 F.2d 831 (9th Cir. 1980).

In Krezdorn, the defendant was tried for forging immigration documents and was convicted on several counts by a jury. On appeal the Fifth Circuit reversed, holding that evidence of 32 additional forgeries not charged in the indictment should not have been admitted under Fed.R.Evid. 404(b). United States v. Krezdorn, 639 F.2d 1327 (5th Cir. 1981). The government then reindicted the defendant on the counts he had been convicted of, and added a new conspiracy count as well. The additional forgeries which had been found inadmissible by the court of appeals were alleged now as the overt acts in the conspiracy count. The district court granted the defendant's motion to dismiss the conspiracy charge on grounds of prosecutorial vindictiveness and the Fifth Circuit affirmed.

Krezdorn is a case squarely in the Blackledge mold: where the defendant successfully appeals his conviction and the prosecution brings increased charges on retrial, a presumption of prosecutorial vindictiveness will lie. The burden is then placed upon the prosecution to rebut the presumption through the presentation of objective evidence. The government was unable to rebut the presumption in Krezdorn, so the conspiracy count was dismissed. Though Krezdorn is an intelligent discussion of the issues of prosecutorial vindictiveness, applying the precepts of Blackledge and Goodwin in workmanlike fashion, it is not a remarkable case. It also is not helpful*fn4 to the defendants here, since in Krezdorn actual vindictiveness was presumed, while in the case at bar the defendants must prove that the prosecution acted with actual vindictiveness. Goodwin, supra, 102 S.Ct. at 2495.

The second case relied on by the defendants also does not particularly aid them in establishing their right to relief here. In Burt, California authorities investigated and initiated prosecutions of defendants allegedly responsible for a large-scale drug manufacturing and distributing operation. Criminal charges were brought in state court in March, 1979. In April of the same year, the state law enforcement authorities met with federal officers (agents of the Drug Enforcement Administration and assistant United States attorneys) to discuss the possibility of the federal government's taking ...

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