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UNITED STATES v. KAYE

August 23, 1984

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALAN KAYE, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

From the very beginning of the trial — counsel's opening statements — it was obvious why Alan Kaye and his lawyers had elected a bench rather than a jury trial. As portrayed by his own taped words and his conduct, Kaye is as sleazy a human being as it is possible to imagine. That portrayal carried through the entire trial and even into closing argument, when Kaye's lawyer accurately described him as "reprehensible" and guilty of "clear violations of state law." What his lawyers rely on instead is the argument that though he is reprehensible, though he has committed criminal acts, he is not federally reprehensible and he did not commit federal criminal acts.

All of us have become too accustomed to viewing federal prosecutions as the principal, if not the sole, means of enforcing the integrity of state and local public officials. Federal waters are relied on to cleanse the Augean stables of city, county and even state officials' corruption. Unfortunately that reflects a dismal conception of the way things work in Chicago and Cook County — the so-called "city that works" or "county that works." That dismal conception is that the system cannot be relied on to police itself. And that conception has been fed by the even more unfortunate phenomenon of Operation Greylord, with its confirmation for the cynics that justice itself is sometimes for sale in Chicago and Cook County.

But this Court's function in criminal prosecutions is not that of a political science professor analyzing machine politics and how it can infect all the workings of government. Nor is it this Court's criminal justice role simply to play the reformer, seeking to assure that the system stays honest. And most significantly for current purposes, it is not this Court's duty to police Kaye's conduct generally, finding him guilty only because he and his conduct are disgusting — because he may be a thoroughly bad human being. Rather this Court's function in this bench trial is to consider the evidence against the backdrop of the federal criminal code, to see whether the charged federal offenses have been proved beyond a reasonable doubt.

One added comment may be in order before turning to the individual offenses charged. Much of the law in this area is the product of some rather strained reading of language. So it is that a mailing in furtherance of official corruption is held a violation of a mail fraud statute even though no tangible property may have been obtained from an identified individual victim. This is the theory of so-called "intangible rights," under which "fraud" may consist of depriving citizens generally, public officials and public employees of their right to have the business of government conducted honestly and free from corruption. That kind of charge has become so commonplace as the vehicle for prosecuting and convicting state and local public officials that no one any longer seems to recognize there may be some stretching of the English language implicit in it.

In any case that practice, and comparable stretchings of other statutory language such as that in the Hobbs Act (which grounds most of the counts in this indictment), have become recognized phenomena. All the established holdings in that respect will be the basis for the determinations here. This opinion will assume familiarity with, and therefore will not repeat, the reasoning of this Court's May 16, 1984 memorandum opinion and order (the "Opinion". 586 F. Supp. 1395). It should however be remembered that the Opinion dealt with an earlier version of the indictment from which former Counts One and Nine have now been dropped. So the mail fraud count, referred to as Count Two in the Opinion, is now Count One of the current indictment, and the six Hobbs Act counts, referred to as Counts Three through Eight in the Opinion, are now Counts Two through Seven. Each type of charge will be considered in turn.

Mail Fraud — Count I

Originally Kaye launched a three-pronged attack against this charge. Now he has conceded the first one, that the mailing involved — one to a fake process server for service of a divorce summons on the fake wife of the fake playboy Ronald Johnson, really FBI Agent Ronald Elder — was what the mail fraud statute calls "for the purpose of executing" the scheme to defraud. Opinion at 1401 gave Kaye's contrary argument short shrift, and now Kaye has given up on the issue.*fn1

There is the second problem of "manufactured jurisdiction," an idea deplored by the Court of Appeals for the Second Circuit in United States v. Archer, 486 F.2d 670, 682 (2d Cir. 1973) in eloquent language quoted in Opinion at 1401-02. That concept is not the same as "entrapment," which rests on the idea a defendant would not have committed any crime but for being lured into it by the undercover law enforcement agents. Instead "manufactured jurisdiction" rests on the notion the defendant would have committed a crime anyway, but the crime would have lacked an element necessary for federal prosecution had the government agent not injected an artificial ingredient needed for federal jurisdiction.

Archer has not found favor with later courts, though some recent trials and the related newspaper reporting strongly suggest juries are troubled by government-planned scenarios. That appears to have accounted for the DeLorean acquittal on entrapment grounds, and it was the focal point of attack by counsel for Judge Laurie, the so-called Operation Greylord defendant who was recently acquitted here.

Kaye's counsel criticizes the falsification by Elder-as-Johnson of a notarized official document, the fake divorce complaint. Certainly that was false swearing, though the parties dispute whether it was therefore the state crime of perjury. Additionally Kaye's lawyer points, as did Opinion at 1402, to Elder-as-Johnson's manufacture of a non-resident "wife," without whom there would not have been a mailing and therefore no possibility of a mail fraud charge. Nonetheless this Court need not decide whether to extend or expand the Archer concept in a way the later cases would not directly support.

That is so because one critical element of the mail fraud offense — the specific scheme to defraud charged in the indictment — has not been proved beyond a reasonable doubt. What Count One charges is that Kaye and his co-schemers — the late attorney Paul Ross and his associate:

  devised and intended to devise and participated
  in a scheme to defraud Cook County and its
  citizens, its public officials and its public
  employees of their right to have the business of
  the Cook County Circuit Court conducted honestly,
  fairly, impartially, free from corruption,
  collusion, partiality, dishonesty, conflict of
  interest, bribery and fraud, and in accordance
  with Illinois law.

But that has two problems:

    1. Admittedly no judges were actually involved,
  so there was no public deprivation of the right
  to an honest court system in that respect.
    2. On the evidence before this Court, neither
  Kaye nor Ross nor his associate could be said
  beyond a reasonable doubt to have been engaged in
  a scheme to conduct the business of the state court
  "corruptly" (or with any of the ...

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