The opinion of the court was delivered by: Norgle, District Judge.
In granting the County's motion for partial summary judgment on
Count I, Judge Decker held that Lynch's prior conviction under §
1962(d) estopped her from denying liability in the County's civil
suit. 560 F. Supp. at 140. At the same time, however, Judge Decker
noted the burden of establishing the "remaining elements of
liability under 18 U.S.C. § 1964(c), i.e., that (1) the Plaintiff
was injured in its business or property (2) by reason of the
Defendant's violation of Section 1962" remained with the County.
Id. The County now uses Lynch's conviction under § 1962(d) and
Judge Decker's grant of partial summary judgment as the basis for
its present motion for summary judgment on the remainder of Count
I — the § 1964(c) claim for treble damages.
The County maintains it was injured in its business or property
by reason of Lynch's violation of RICO because it was forced to
pay for the services of two corrupt officials (Woodlock and
Smith) which were never performed. Lynch does not deny that such
an injury is cognizable under § 1964(c). E.g., Hellenic Lines
Ltd. v. O'Hearn, 523 F. Supp. 244, 248 (S.D.N.Y. 1981). Nor does
Lynch disagree that the County's injury resulted from a violation
The County suggests the proper measure of damages in this case
is the entire salaries of the two corrupt officials during the
period of the bribery scheme. This measure of damages is drawn
from the common law remedy provided by Illinois courts for a
tortious interference with an employment contract. E.g., ABC
Trans National Transport v. Aeronautics Forwarders,
413 N.E.2d 1299 (1st Dist 1980); Vendo Co. v. Stoner, 58 Ill.2d 289,
321 N.E.2d 1 (1974). See also NSC International Corp. v. Ryan,
531 F. Supp. 362, 363 (N.D.Ill. 1981) (on issue of availability of
jury trial in civil RICO action; court found civil RICO "most
closely resembles an action for tortious interference with
economic relations"). Strictly speaking, Lynch does not object to
the County's position that its damages under RICO should be
measured with reference to the common law remedy for a tortious
interference with contract. See Deft's Memo at 9. See generally
Sutherland Statutory Construction § 50.01 et seq. (4th ed. 1984).
She does argue, however, that the County has failed to meet its
burden under Fed.R.Civ.P. 56 and that she cannot be held liable
for damages caused by other independent conspirators. The former
argument raises issues involving the County's use of collateral
estoppel in this action; the latter argument raises the issue of
whether Lynch may be held liable for damages potentially
resulting from the acts of other independent conspirators. This
opinion first discusses the issues raised by the County's theory
of damages and then proceeds to determine the reach, if any, of
collateral estoppel in this lawsuit.
Lynch contends that she was not the only person paying bribes
to Woodlock and Smith. She names various persons ("on information
and belief") who were making payments to the two Board members
and insists that those independent payments were made without her
knowledge or participation. Deft's Memo at 7-8. From this Lynch
argues she may not be held jointly and severally liable for the
conduct of persons with whom she neither conspired nor acted in
concert. In essence, Lynch argues she is only liable for only a
portion of the County's damages because others were also paying
bribes to Woodlock and Smith. Such an argument suggests damages
in this case can and should be apportioned.
The County maintains that its damages are not susceptible to
apportionment among all potential defendants. Consequently,
because apportionment is not possible, Lynch may be held solely
liable for its entire damages notwithstanding the existence of
independent bribery schemes involving other potential defendants.
See generally Prosser and Keeton on Torts § 52 (1984) ("PROSSER &
Ordinarily a tort plaintiff bears the burden of proof of his
damages as to each defendant. However, where the independent,
successive acts of several tort-feasors result in an indivisible
injury to the plaintiff, then the burden of proof shifts and the
tort-feasors are required to bear the burden of proving any
reasonable apportionment of damages. To do otherwise would
penalize an innocent plaintiff merely because his injury was
caused by several tort-feasors. Thus, if the County's damages are
indivisible, the burden of apportioning damages rests with Lynch.
Her inability to carry that burden will result in liability for
the entirety of the County's damages. This principle is applied
most frequently in personal injury cases (e.g., Phennah v.
Whalen, 28 Wn. App. 19, 621 P.2d 1304, 1309-10 (1980)), but it
also has been applied in other contexts as well (e.g., Ricky
Smith Pontiac v. Surbaru of New England, 14 Mass. App. 396,
440 N.E.2d 29 (1982) (unfair and deceptive trade practices in
violation of state statute)).
The issue, therefore, is whether the County's damages are
subject to any rational apportionment among the several
independent tort-feasors. Illinois caselaw (c.f. Monotronics
Corp. v. Baylor, 107 Ill.App.3d 14, 62 Ill.Dec. 760, 765,
436 N.E.2d 1062, 1067 (2d Dist. 1982)) and The Restatement (Second)
Torts ("RESTATEMENT") suggest the County's injury (deprivation of
the loyal services of its employees resulting from an intentional
interference with contractual relations) is not the kind of
injury which is capable of apportionment.
Section 433A of the Restatement states the rule for
apportionment of damages among two or more causes:
Section 433B(2) shifts the burden of proof that damages can be
apportioned to the defendant whenever two or more tort-feasors
have caused the plaintiff's injury and one of the defendants
seeks to limit his liability. Consequently, if a defendant
attempting to claim the benefits of apportionment fails to meet
his burden, the full responsibility for plaintiff's injury will
fall upon him. Comment (d) to section 433B states the basis for
The reason for the exceptional rule placing the
burden of proof as to the apportionment upon the
defendant . . . is the injustice of allowing a proved
wrongdoer who has in fact caused harm which he has
inflicted has combined with similar harm inflicted by
other wrongdoers, and the nature of the harm itself
has made it necessary that evidence be produced
before it can be apportioned. In such a case the
defendant may justly be required to assume the burden
of producing that evidence, or if he is not able to
do so, of bearing the full responsibility. As between
the proved tort-feasor who has clearly caused some
harm, and the innocent plaintiff, any hardship due to
lack of evidence as to the extent of the harm caused
should fall upon the former.
Consideration of the two elements identified in § 433A of the
Restatement suggests the County's injury cannot be apportioned.
Moreover, the remedy provided by Illinois courts for a tortious
interference with contract (forfeiture of the disloyal employee's
salary during the period of disloyalty) convinces the Court that
Lynch cannot meet her burden of establishing a rational means of
apportionment of damages in this case. See Restatement, §
As a practical matter, the very nature of the County's injury
(deprivation of the loyal services of its employees over a 5 year
period) prevents any distinction between the harm caused by
Lynch's wrongful acts (participation in the scheme to bribe Board
Officials over the five year period) and other independent, but
similar, wrongful acts. The injury to the County, when one of its
officials accepts a bribe as part of a continuing conspiracy, can
only be described as a continuing injury. The disloyalty caused
by the scheme in which Lynch participated spanned a five year
period and she may not now isolate each payment to an official in
order to reduce her liability for each of those years. See
Prosser & Keeton, supra, at 347-48.
Similarly, there is no reasonable basis for determining the
portion of damages attributable to each independent tort-feasor.
See Restatement § 433A(1)(B). The disloyalty caused by the scheme
with which Lynch was charged spanned a five year period. In
measuring the County's damages it is not the individual acts of
bribery which require focus, but the prolonged, continuous scheme
over the five year period. Consequently, Lynch may not now argue
that because she was able to turn Woodlock and Smith on and off
like a light switch for her individual cases, her liability
should be limited to those individual bribery transactions. The
possibility that others performed the same acts independent of
Lynch is irrelevant to the continuous nature of the injury caused
by Lynch. The County's injury resulting from Lynch's conduct
progressed from the beginning of the scheme to its end without
any breaks in between.
Further, the remedy provided by Illinois law for a tortious
interference with contract (in this context an employment
contract) also militates against apportionment of damages in this
case. The damages provided by Illinois courts is equal to the
entire amount of the disloyal employee's salary during the period
of the disloyalty. It is the payment of the salary for the
employee's misperformance that is the basis for the remedy, not,
as Lynch suggests, the isolated acts of disloyalty. Thus, Lynch
may be held liable for the salaries of Woodlock and Smith over
the entire period of the bribery scheme without any apportionment
for persons who may have performed similar, but independent acts
of bribery. Having addressed Lynch's arguments regarding her
potential liability, the focus now shifts to the reach (if any)
of collateral estoppel in this lawsuit.
Collateral estoppel precludes the relitigation of issues which
were actually litigated and necessarily determined in a previous
lawsuit. Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d
552 (1979). The first element, actual ligation of an issue,
reflects a due process concern that the party estopped must have
had a full opportunity to litigate an issue before he is estopped
from denying its resolution. The second element, that the issue
was necessarily determined, assures the issue decided was
sufficiently important in the prior case to command the full
attention of the party estopped. Thus, the Court's obligation is
to determine exactly what was put in issue and directly
determined in the prior criminal prosecution. Emich Motors Corp.
v. General Motors Corp., 340 U.S. 558, 560, 71 S.Ct. 408, 410, 95
L.Ed. 534 (1951). The fundamental consideration, however, is
whether application of collateral estoppel would be fair to the
defendant. Parklane Hosiery, supra, 439 U.S. at 331, 99 S.Ct. at
In order to determine the exact issues decided, the record of
the prior criminal prosecution must be examined "including the
pleadings, the evidence submitted, the instructions under which
the jury arrived at its verdict, and any opinions of the courts."
Emich, supra, 340 U.S. at 569, 71 S.Ct. at 414. In support of its
motion for summary judgment the County has submitted copies of 1)
the 14 count indictment against Lynch (dated November 1978) and
2) the "Judgment and Probation/Commitment Order" pertaining to
Lynch's conviction. The County has also directed the Court's
attention to the Seventh Circuit's resolution of Lynch's appeal
from her conviction (United States v. Lynch, 699 F.2d 839 (C.A.7
1982)). The County has not submitted a transcript of Lynch's
trial, nor has it provided a set of the instructions given to the
jury. For the following reasons the Court finds the submissions
by the County in support of its motion do not provide a
sufficient basis for granting summary judgment in its favor on
the collateral estoppel issues.
Initially Lynch argues that it is not possible to ascertain
from the indictment whether the jury found she engaged in mail
fraud, or bribery, or both offenses. The Court agrees. Paragraph
6 of Count 14 of the Lynch indictment charges Lynch knowingly
conducted and participated in the affairs of an enterprise (the
R.M. Lynch Company) "through a pattern of racketeering activity
by committing multiple acts of bribery and mail fraud" involving
payments of money to Woodlock and Smith. (emphasis added) There
is no question that it was entirely proper for the government to
draft Count 14 using the conjunctive "and" (e.g., "bribery and
mail fraud"). E.g., U.S. v. McCann, 465 F.2d 147, 161 (C.A.5
1972). But drafting an indictment in this manner renders
collateral estoppel in a later civil action rather problematic.
When an indictment charges several different ways, in the
conjunctive, of committing an offense, then a conviction may be
sustained if there is proof of any one (or more) of the means of
commission. United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
249, 60 S.Ct. 811, 855-56, 84 L.Ed. 1129 (1940); United States v.
Murph, 707 F.2d 895, 896-97 (C.A.6 1983); Fields v. United
States, 408 F.2d 885, 887 (C.A.5 1969). See also United States v.
Austin, 99 F.R.D. 292, 298-99 (W.D.Mich. 1983). Thus, in
making its determination that Lynch was guilty on Count 14, the
jury may have found she committed mail fraud, or bribery, or
both. Consequently, the indictment does not provide a basis from
which the Court may determine the exact issues decided at Lynch's
The County makes much of the fact that Lynch appealed her
conviction and the Seventh Circuit affirmed it. 699 F.2d at 839.
But, as will become clear, collateral estoppel does not
necessarily follow from the affirmance of a conviction. See e.g.,
Anderson v. Janovich, 543 F. Supp. 1124, 1132-34 (W.D.Wa. 1982).
On appeal, Lynch argued her conviction was not supported by
substantial evidence because the Government's evidence "hardly
implicate[d] her in the bribery scheme." 699 F.2d at 841. After a
review of the evidence presented at trial, the Court of
Appeals concluded that Lynch had knowledge of and participated in
the scheme to bribe Woodlock and Smith both before and after her
husband's death. 699 F.2d at 841, 842-43. Specifically the Court
of Appeals noted that Lynch's company essentially "functioned by
bribing the employees at the [Tax] Board to forge" documents and
that Lynch personally paid Woodlock $500 in cash. Id. at 841.
Moreover, Lynch admitted paying Woodlock and Smith more than
$3000. Id. at 842. The Court of Appeals concluded that
"substantial evidence supported the conclusion that [Lynch] knew
of the [bribery] scheme and participated in it." Id. at 843.
Although the findings and conclusions of the Court of Appeals do
not bode well for Lynch, that decision (standing alone) cannot
provide the sole basis for determining the reach of collateral
estoppel in this lawsuit. "[I]t is the judgment, properly
construed in the light of the pertinent facts, that creates the
potential for estoppel, not the appellate decision affirming it."
Kurek v. Pleasure Driveway & Park Dist. of Peoria, 583 F.2d 378,
380 (C.A.7 1978). As the Court has previously pointed out, the
County chose not to submit a copy of the transcript of Lynch's
criminal trial in support of the motion for summary judgment.
Yet, that transcript is the most likely repository of the
"pertinent facts" in this case. Thus, in failing to provide a
transcript of Lynch's trial the County has failed to provide this
Court with an adequate basis for determinating the precise facts
and issues established at Lynch's criminal trial. Consequently,
the County's motion for summary judgment must be denied.
Although it is a closer contest, the same fate befalls the
County's attempt to establish the time frame for Lynch's
involvement in the charged bribery scheme. Both parties agree
that it is the County's burden on summary judgment to pinpoint
the beginning and end of Lynch's participation in the bribery
scheme as an element of its damage theory. In other words, the
County may only receive damages for the period of time it was
deprived of the loyal services of its employees. See Vendo v.
Stoner, 58 Ill.2d 289, 321 N.E.2d 1 (1974); ABC Trans National
Transport v. Aeronautics Forwarders, 413 N.E.2d 1299 (1st Dist.
1980) (salary forfeiture of disloyal employee limited to specific
time period of employee's breach of duty). Lynch contends the
County has not met its burden because "it is impossible to
know . . . the inclusive dates of the [charged] bribery scheme."
That contention is too imprecise and is rejected.
Paragraph 6 of Count 14, on which the jury returned a verdict
of guilty, charges Lynch with participation in the bribery scheme
"[b]eginning in or around August, 1975, and continuing until in
or about August, 1980." Lynch appears to have recognized the
explicit time frame of the indictment in her arguments before the
Court of Appeals. See 699 F.2d at 843. The nature of the remedy
in this case (see ABC, supra) does not require any more
exactitude than that stated in the indictment (viz. the County is
entitled to the entire salaries of Woodlock and Smith for each
year they accepted bribes, even if bribes were accepted for only
part of a year). Thus, it is not (as Lynch argues) "impossible"
to pinpoint the time frame involved here. The record provided by
the County is simply inadequate to support collateral estoppel.
In sum, then, the County's motion for summary judgment must be
denied at this time because of its failure to provide an adequate
record from which this Court may determine the precise issues
(and facts) determined in Lynch's criminal trial. The County is
therefore ordered to provide sworn and verified copies of the
following to the Court within 60 days; Lynch may have an
additional 14 days to respond if she desires:
(1) the pleadings, transcripts and jury instructions
from Lynch's criminal prosecution;
(2) a proposed Order specifying the facts which Lynch
is collaterally estopped from relitigating as a
result of her criminal conviction (e.g., that Lynch
bribed Woodlock and Smith);
(3) an index to the proposed Order in # 2 above
containing page references to the testimony in the
transcript for each fact which the County contends
Lynch is estopped from relitigating.
IT IS SO ORDERED.
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