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
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: