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People v. Toolen

OPINION FILED JULY 14, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

VINCENT TOOLEN ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 10, 1983.

This appeal is the result of a Jackson County grand jury investigation into the activities of employees of the Illinois Department of Administrative Services (D.A.S.), relating to the Department's Carbondale garage. Indictments were returned against Vincent Toolen, the Director of D.A.S., Joseph Garella, assistant superintendent of vehicles in D.A.S.'s Division of Vehicles, Ernest Allen, shop supervisor of the Carbondale garage, and Harry J. Wiggs, owner of Carbondale Auto Supply. The three areas of investigation pursued by the grand jury involved allegations of payment of a bribe to obtain an official position, allegations that D.A.S. employees had billed to the State auto parts which they used on personal vehicles, and allegations that employees of D.A.S. and Carbondale Auto Supply collaborated to present the State with false bids on auto parts. The indictments returned pertained to all three of these areas and alleged that the offenses of bribery, theft, forgery, official misconduct, obstructing justice and perjury had been committed by the various defendants. Pursuant to the defendants' motions, the trial court dismissed all of the indictments, and the State appeals to this court. (87 Ill.2d R. 604(a).) Defendants Toolen, Garella and Wiggs, who have filed briefs, have moved to dismiss the State's appeals. We have taken these motions with these cases, all of which we have consolidated on our own motion. The issues raised here concern appealability, due process in the grand jury proceedings and sufficiency of the indictments. First, a recital of the evidence presented to the grand jury is necessary.

PAYMENT OF BRIBE

Defendants Allen, Wiggs and Garella were each indicted for a single count of bribery. The incident upon which these indictments were based was the alleged payment of $900 by Allen to Wiggs, who forwarded the money to Garella to obtain Allen his position with D.A.S. Defendants Toolen and Garella were also charged with perjury, obstructing justice and official misconduct through giving an incorrect account of these transactions to the grand jury or to investigators of the Department of Law Enforcement (D.L.E.).

In his testimony before the grand jury, defendant Allen stated that he worked for D.A.S. since July 7, 1979. He had also served as a foreman at the Carbondale garage from 1966 to 1970. After that period, he purchased a flower shop and greenhouse business, and when it was destroyed by fire, he began to work for the city of Carbondale. Allen stated that in the summer of 1979 he asked Harry Wiggs to put in a good word for him with Joseph Garella in order to assist him in again securing employment with D.A.S. Wiggs later told him that he had talked to Garella, who said that "there were three people in Springfield that would have to be satisfied with some money." The amount mentioned was $600. Allen replied that he would pay that money to obtain a job with D.A.S. He was so employed that summer, but, although he did not pay Wiggs any money before he started work, Wiggs informed him that he would have to pay $900. On August 6, 1979, Allen gave Wiggs a personal check in that amount, and Wiggs assured him that Garella would receive it.

Defendant Garella denied accepting money from Allen to secure his employment. He testified that in July 1979, Allen approached him at the Carbondale garage and mentioned that he wanted to make a political contribution. Later that month, Garella was at Carbondale Auto Supply, where Wiggs gave him $900 claimed to be from Allen. The money was in nine $100 bills. Garella stated that he took the money to his home in Gillespie, Illinois, and placed it in an envelope. Because according to Garella there was no political activity in 1980, he kept the money until December 1980 or January 1981. At that time, tickets became available for a testimonial dinner for State Representative George H. Ryan. Garella testified that he purchased six tickets at $150 apiece from Jon Bauman.

Bauman, deputy director of D.A.S.'s Office of Property Management, told the grand jury that he had been given several of the Ryan tickets by defendant Toolen and was asked to sell them if he could. He agreed that he had given Garella between five and 10 of the tickets to sell. Bauman and Garella testified that while they were both in Chicago on business and staying at a hotel, Garella gave Bauman an envelope containing nine $100 bills, which Garella stated had been paid for the Ryan tickets. Garella conceded that he had earlier told D.L.E. investigators that he had given the money to Vincent Toolen. Before the grand jury, Garella stated that he told Bauman that the money was from Ernest Allen, but Bauman testified that Garella did not tell him who had purchased the tickets. Garella and Bauman both recalled that the tickets did not have stubs attached which would allow the name and address of the purchaser to be indicated, although Garella had informed D.L.E. investigators that he had filled out stubs for these tickets. Garella stated that Bauman did not give him a receipt, but Bauman did indicate later that he had given the money to Toolen.

Ernest Allen noted that he did not get a receipt for a political contribution or tickets to a Ryan dinner. He testified that in November 1981, he talked with Garella while Garella drove him around Springfield. According to Allen, Garella told him that his money had been used to purchase campaign tickets. Garella testified that he had informed Allen that the money had gone to Ryan, but stated that he had not discussed the contribution with Allen within six months of his grand jury testimony, which was given in January 1982.

Defendant Toolen, Director of D.A.S., testified that he received approximately 10 or 15 tickets to the dinner from Ryan's office and had given several of them to Bauman to sell. After the dinner was held on February 25, 1981, Toolen received an envelope containing money for tickets and unsold tickets. He said that some of the money was in cash, but probably not all of it. Toolen testified that he brought the money to Ryan's office in the Capitol building. Toolen entered the office through the main door, which had Ryan's name over it. Toolen did not recall to whom he presented the envelope, but he stated that it was customary for him to give the proceeds for fund raising events to one of Ryan's staff members, as opposed to a secretary or receptionist. According to Toolen, he did not inform Ryan's staff of the names or addresses of any of the ticket purchasers, although he stated that the tickets had stubs which could be filled out, and if they had been filled out before they were given to him, Ryan's staff would have been given that information. Toolen recalled that he did not receive a receipt for these contributions. Jon Bauman testified that Toolen had told him that he had delivered the money and tickets to Ryan's office.

D.L.E. investigator James Covert informed the grand jury that he had spoken with Speaker Ryan's chief of staff, Robert Knudsen. Knudsen told Covert that although Toolen had indicated that he could sell some tickets for the February 1981 dinner, none of the staff members could remember giving Toolen any tickets. According to Knudsen, if tickets were handed to someone, their numbers would not be recorded, as they would be if they were mailed. Covert testified that he spoke to everyone who worked on Ryan's staff during the period that Toolen claimed to have delivered money and tickets to their office. None of these staff members recalled receiving money or tickets from Toolen.

Knudsen informed Covert that when an individual seeks to make a contribution to Ryan in cash, the procedure followed is to photocopy the cash and then require the individual to obtain a cashier's check so that the office would have a record of the donor's identity. The records at Ryan's Springfield and Kankakee offices failed to disclose any contributions from Vincent Toolen, Jon Bauman, Joseph Garella, Ernest Allen, Harry Wiggs or Carbondale Auto Supply. Knudsen also stated that in the last half of 1980 and the first half of 1981, Ryan's Springfield office was under repair. During that time, the main door was blocked off, and one had to enter the office through an unmarked door reached through a side hallway. In order to reach the inner staff office, in which Toolen stated that he usually turned in campaign contributions, one would have to go through Speaker Ryan's private office and not through the reception area, as would normally be required, and as Toolen indicated he did.

Covert testified that he visited the offices of the Illinois State Board of Elections, where he was told that if an individual made a contribution of more than $150 to one candidate or office holder in a single year, it would have to be reported to the Board. Covert examined Ryan's campaign financial records at the Board and determined that no contribution of greater than $150 was made for the February 1981 dinner by Toolen, Bauman, Garella, Allen, Wiggs or Carbondale Auto Supply.

John Wininger, who was a 49% shareholder in Carbondale Auto Supply, testified that Garella occasionally stopped by the store to speak with Wiggs. It was Wininger's understanding that Garella came to accept political contributions from Wiggs, that these contributions were usually in cash and that Wiggs had received tickets in return for his contributions. However, Wininger also recalled that Wiggs had told him that he had forwarded a contribution from Allen to Garella in order to secure Allen's job at D.A.S.

FALSE BILLING OF AUTO PARTS

The witnesses who testified before the grand jury on the issue of State employees accepting auto parts for personal use and billing them to the State may be considered in two categories: those employed by the Carbondale garage and those employed by Carbondale area auto parts stores, primarily at Carbondale Auto Supply.

Paul Escue and Derald Snyder worked at the Carbondale garage. Escue stated that over the course of his 13 years of employment at the garage, he had obtained parts for himself and other State employees from Carbondale Auto Supply and those parts had been billed to the State as something else. Snyder, who worked at the garage from 1977 to 1981, was often assigned to retrieve parts from auto parts stores for the garage. He first became aware of the false billing practices when he had to obtain parts for vehicles, such as Cadillacs, which were not owned by the State. Escue and Snyder dealt with the sales personnel at Carbondale Auto Supply, and only infrequently with Wiggs himself. However, both Escue and Snyder were of the opinion, based on conversations with Wiggs and the counter personnel, that Wiggs was aware of these practices. In fact, Snyder testified that Wiggs had indicated that Escue could have any parts he wanted. He also stated that Wiggs had told him that if he did not furnish law enforcement authorities with information about the billing practices, he could have him transferred as a reward. Escue named several D.A.S. employees who had received parts and estimated that between $500 and $1,000 worth of parts were obtained in this manner each month. Defendant Allen testified that he was unaware of these practices, but he did say that he had told Wiggs in October 1979 not to allow D.A.S. employees to accept parts without the proper number on the bill, or parts which were not for State vehicles.

Carbondale Auto Supply sales counter personnel Jack Peterman, William Fuson, David Crawshaw and Gene Hankins presented testimony to the grand jury. Peterman, Fuson and Crawshaw recalled that they had, on occasion, written up bills for D.A.S. personnel which did not reflect the items which had been given to those individuals. Peterman and Fuson stated that Wiggs had specifically authorized these procedures while Crawshaw testified that although Wiggs might have known about it, he did not instruct him directly to do so. According to Peterman and Fuson, when a part was incorrectly billed, they would fill out a piece of scratch paper to indicate the part which was actually sold, so as not to upset the store's inventory. Fuson said that he accomplished this task by placing a pencil mark on the bill. Peterman and Crawshaw testified that these billing practices were stopped at about the time D.L.E. commenced its investigation.

Hankins testified that he was aware that "inventory swaps" occurred and that Wiggs had permitted the practice. However, he said that this took place only in emergencies, where, for example, the State needed an item between bids. The single such transaction which he recalled making with Escue was an instance in which he exchanged a jack for an alternator.

Gary McCarthy, who kept the inventory at Carbondale Auto Supply, testified twice before the grand jury on January 14, 1982. In his first appearance, he stated that although he was aware that auto parts had been billed as other than what they were, he did not know specifically that this had occurred for parts sold to D.A.S., nor had he sold parts to D.A.S. employees which were then billed as something else. He said that he knew that, as Fuson testified, D.A.S. employees Snyder and Gary Gibbs had refused to accept parts which were not listed correctly on the bill. According to McCarthy, on only one occasion did Wiggs tell him to bill a part as something else, and this involved an emergency where the garage needed a battery to start a car. McCarthy also explained that if an item were not properly billed, a notation would be made on scratch paper to show what item should be re-ordered. If he received an invoice with a check mark on it, he would not list that item as being removed from inventory.

After McCarthy gave this testimony, D.L.E. investigator William Barrett spoke to him in the courthouse hall and then testified concerning their conversation. Barrett indicated that McCarthy had expressed concern whether he had given accurate information to the grand jury. McCarthy told Barrett that he was aware that parts may have been given to the State and billed as something else and that he may have done so on occasion but could not recall a specific incident. He further said to Barrett that he was of the impression, through conversation in the store, that some of these parts may have been for the personal use of D.A.S. employees.

In his second appearance before the grand jury, McCarthy admitted that he knew of instances in which the State accepted parts that were billed as something else. Although he, as a counter salesman on occasion, would not know where these parts would be used, he became suspicious that these parts were not for State vehicles because parts were ordered for such cars as Cadillacs and a 1948 or 1949 Dodge. McCarthy stated that he did not remember Harry Wiggs telling him that he could engage in this sort of billing for Escue and other State employees, but he thought that Jack Peterman told him that Wiggs had approved these practices.

John Wininger testified that while he worked at Carbondale Auto Supply, D.A.S. employees such as Escue would order parts and they would be billed as something else. While he did not hear Wiggs instruct the counter sales personnel to engage in these activities, Wininger was of the opinion that Wiggs was aware of the false billing and acquiesced in it. Wininger billed parts for Escue in this manner on occasion, and when this occurred, Wininger would make a slash mark or a circle on the invoice to show that that article remained in inventory.

BID RIGGING

The final allegations of criminal activity investigated by the grand jury concern the submission of fraudulent auto parts bids to the State. The two primary witnesses on this issue were Derald Snyder and Paul Escue. Snyder testified that he witnessed bid rigging by Escue on four or five occasions and participated in it once. It was Snyder's understanding that for certain parts orders three bids would have to be obtained. However, instead of calling three auto parts stores, Escue would take three bid forms to Wiggs who would fill all of them out and sign them. The result of this procedure would be that only one actual bid would be obtained, even though the forms would reflect that three bids were received. It would also show that Carbondale Auto Supply was the low bidder.

Paul Escue stated that the accepted bid procedure at D.A.S. was to obtain three bids from auto parts suppliers, either by phone, or in person, in which case the suppliers would fill out bid forms. In four to six instances, he called Carbondale Auto Supply but no other suppliers. Nonetheless, he would write up bid forms to show that three suppliers had been contacted. Escue told the grand jury that the parts involved in these transactions were usually worth $300 or more. He also indicated that there were occasions in which he obtained three bids from suppliers and if Carbondale Auto Supply were not the low bidder, Escue would contact Carbondale Auto Supply again and allow them to submit another bid in order to secure the purchase. According to Escue, Wiggs knew of these practices, approved of them and in fact instructed him to continue with them.

John Wininger testified that he had heard that the grand jury was investigating allegations of bid rigging at Carbondale Auto Supply, but, as he did not work with bids for the Carbondale D.A.S. garage, he was not aware of these practices. However, he agreed that it was possible that they had occurred. In his appearance before ...


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