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UNITED STATES v. FREEDMAN

July 26, 1983

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL FREEDMAN AND RANDALL SCOTT MOORE, DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Michael Freedman ("Freedman") and Randall Scott Moore ("Moore") have been indicted for (1) conspiracy to commit extortion, extortion and attempted extortion in violation of 18 U.S.C. § 1951 (the "Hobbs Act") (Counts I to IV) and (2) mail fraud in violation of 18 U.S.C. § 1341 ("Section 1341") (Counts V and VI).*fn1 This Court's May 12, 1983 memorandum opinion and order (562 F. Supp. 1378, the "Opinion") dismissed Counts I through IV. Freedman and Moore have now renewed their earlier motions (addressed to the original indictment) to dismiss Counts V and VI. For the reasons stated in this memorandum opinion and order their motion is granted.

Background Facts and Counts V and VI*fn2

As detailed more fully in the Opinion, 562 F. Supp. at 1380, Freedman and Moore were at all relevant times licensed Illinois attorneys. They had been retained to represent Sean O'Toolis ("O'Toolis") in pending Illinois criminal prosecutions. They conspired to obtain and then did obtain from O'Toolis payments they represented they would use to bribe the judge presiding at O'Toolis' criminal trial. There is no allegation in the Indictment asserting any approach to or involvement by any state judge in the alleged scheme.

Counts V and VI are substantially identical, charging two separate mailings in violation of Section 1341 (each Count's ¶ 12). Paragraphs 1-4 of those Counts:

    1. identify Freedman and Moore as Illinois
  attorneys and O'Toolis as a state criminal
  defendant;
    2. recite a portion of Illinois' bribery
  statute, Ill.Rev.Stat. ch. 38, § 33-1;*fn3 and
    3. specify Cook County Circuit Court judges are
  public officers (whose bribery would therefore
  violate that state statute).

Paragraphs 5-11 state the substance of Counts V and VI:

    5. From in or about November of 1981, through
  and including in or about February of 1982, at
  Chicago, in the Northern District of Illinois,
  Eastern Division, and elsewhere,

MICHAEL FREEDMAN and RANDALL SCOTT MOORE,

defendants herein, together with co-schemers known and unknown to the grand jury, devised and intended to devise a scheme:

      (a) to defraud Cook County, its citizens and
    the Circuit Court of Cook County of their right
    to have the legal and judicial process of the
    Circuit Court of Cook County conducted
    honestly, fairly and impartially, free from
    corruption, collusion, dishonesty, bribery and
    fraud, and in accordance with the laws of the
    State of Illinois; and
      (b) to defraud Cook County, its citizens and
    the Circuit Court of Cook County of their right
    to the services, decisions, actions and
    performance of legal duties by
    defendants . . ., in their capacities as
    attorneys practicing before the Circuit Court
    of Cook County, free from corruption, ...

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