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