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03/09/87 the People of the State of v. Alan Kaye

March 9, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ALAN KAYE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

507 N.E.2d 12, 154 Ill. App. 3d 562, 107 Ill. Dec. 348 1987.IL.265

Appeal from the Circuit Court of Cook County; the Hon. Michael P. Toomin, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. O'CONNOR and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Following a bench trial, defendant, Alan Kaye, a Cook County deputy sheriff, was convicted of six counts of bribery, three counts of theft by deception, and one count of intimidation (Ill. Rev. Stat. 1985, ch. 38, pars. 33-1(d), (e), 16-1(b)(1), 12-6) and sentenced to concurrent terms of imprisonment for five years, four years, and four years, respectively. On appeal, defendant contends that: (1) pursuant to the statutory prohibition against double jeopardy, the State court prosecution for intimidation was barred by defendant's former prosecution in Federal court for Hobbs Act extortion; (2) pursuant to the doctrine of collateral estoppel, the State court prosecution for bribery was barred by defendant's prior acquittal in Federal court of the offense of mail fraud; (3) the trial court erred in convicting defendant of theft by deception when the evidence failed to establish the completed offense of theft or the element of deception; and (4) multiple convictions for bribery, theft by deception, and intimidation are improper because all offenses arose from the same conduct. For the reasons that follow, we affirm the judgment of the circuit court as to three of the six counts of bribery, all counts of theft by deception and the single count of intimidation; vacate three counts of bribery; and remand for resentencing for the bribery conviction only.

The record sets forth the following facts pertinent to this appeal. The Federal and State court indictments against defendant stemmed from his purported involvement in the divorce proceedings of Iris and Leo Zutler. At trial, Leo testified that when he initially met defendant in late 1980 or early 1981, he complained to defendant about the length of time it was taking to get his divorce finalized. Defendant told Leo that he knew the Judge who was handling his divorce and it would take $5,000 to move the case forward. Leo gave the money to defendant in early 1981. Defendant then led Leo to believe that he had spoken to the Judge and that the divorce would be expedited. Although the divorce hearing was held several weeks later, there is no evidence that the Judge ever received the money, or that he had been contacted.

On April 28, 1981, an order was entered dissolving the Zutler marriage. Objections were filed to the order and the April 28 order was vacated and the proceeding reassigned. Shortly thereafter, the Zutlers reconciled. In July 1981, Leo contacted the FBI and told them about the $5,000 payment he had made to defendant to expedite the divorce proceeding. Leo agreed to wear a body recorder to tape all future conversations with defendant.

In September 1981, Iris Zutler's divorce attorney filed a petition for attorney fees, requesting $37,000. Leo objected to the amount of the fees and the matter was assigned to the court call for a hearing. Prior to the hearing, defendant told Leo that to get a reduction in the amount of fees awarded, Leo would have to pay one-half of whatever amount he gave to the Judge ruling on the fee petition. Leo agreed on the condition that there be a $5,000 ceiling on the amount he would have to pay the Judge. There is no evidence that any Judge was actually involved. Following the hearing, the attorney fees were reduced to $15,000, resulting in a savings to Leo of $22,000.

On November 11, 1981, Leo met with defendant at a restaurant. Although Leo was supposed to have the $5,000 payment, he did not. Defendant warned Leo that he worked for John D'Arco, alleged boss of the crime syndicate, and that if Leo did not pay defendant, D'Arco would want "something nasty done" to him. When Leo expressed concern about how he would get the money, defendant stated:

"These guys, they don't care if you're dying and ya don't have a quarter and you'll go rob a . . . bank as far as they're concerned.

They want their end and they don't care nothin about nothin."

Leo agreed to meet with defendant the next day.

On November 12, 1981, defendant met with Leo at Leo's office. When Leo told defendant that he had only $1,000 of the $5,000 he owed, defendant said it was "nothin," and that he wanted the entire amount. Defendant threatened Leo with physical harm, adding that if he was "gonna be in a juice situation where you're gonna pay every week," the price would be $11,000 rather than $5,000. When Leo claimed that was the best he could do, defendant left, allegedly to find out if partial payments would be acceptable to his superior. When he returned, defendant told Leo that he either had to pay $5,000 in one lump sum or pay $1,000 per week for 11 weeks. Leo agreed to pay the $1,000 per week to the best of his ability.

On November 19, 1981, defendant again met Leo at his office and collected his $1,000 payment in $100 bills. On December 3, 1981, they met again at Leo's office. This time, Ron Elder, undercover FBI agent, was also present. Elder posed as a wealthy businessman seeking a divorce. When defendant demanded the two payments then due from Leo, Leo told him that he did not have it. At that point, defendant again threatened Leo, warning him that if he did not pay the money, his building might be ...


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