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
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
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.
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
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 ...