Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 CR 289--George N. Leighton, Judge.
Bauer, Chief Judge, Cummings, and Cudahy, Circuit Judges.
This case is before us on appeal from the district courts order granting appellee's petition for writ of error coram nobis pursuant to 28 U.S.C. § 1651(a). The district court found that appellee was convicted for conduct that was not criminal in light of the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987). For the following reasons, we reverse.
The appellee, Stephen T. Gorny, served as a Deputy Commissioner on the Cook County Board of Tax Appeals ("the Board") from May 1, 1978 to June 3, 1982. As a deputy commissioner, Gorny was empowered to review complaints relating to real estate property tax assessments. During his tenure, Gorny received approximately $9,000 in cash payments from attorneys who practiced before the Board. These attorneys testified that they made the payments in exchange for Gorny's promise to deal favorably with their real estate assessment files. Although Gorny's receipt of these funds could not be linked directly to any action on a particular real estate assessment file, these attorneys won tax reductions for their clients at an unusually high rate of success. The average success rate for all attorneys was 35%, but one practitioner had a success rate of 80% and another had a success rate of 93% when their files were reviewed by Gorny. The evidence also showed that Gorny overruled his own decisions and those of other deputy commissioners which had denied requests for tax reductions after receiving payments from the interested attorneys.
Gorny was indicted on charges of mail fraud in violation of 18 U.S.C. § 1341, racketeering in violation of 18 U.S.C. § 1962(c), and obstruction of a federal criminal investigation in violation of 18 U.S.C. § 1510. The mail fraud indictment, using the "intangible rights" theory minted in United States v. Isaacs, 493 F.2d 1124, 1149 (7th Cir. 1974), charged that Gorny schemed with those who bribed him to defraud:
a. The Board and the citizens of Cook County of their right to the loyal, faithful and honest services of Gorny in the performance of acts related to his public employment;
b. Cook County and its citizens, its public officials and public employees of their right to have the business of the Board of Appeals conducted honestly, fairly, impartially, free from corruption, collusion, partiality, dishonesty, bribery and fraud; and
c. Cook County and its citizens of their right to have real estate property taxes assessed and collected free from the influence of corruption, collusion, partiality, dishonesty, bribery and fraud.
After a jury trial, Gorny was found guilty of all charges. His conviction was affirmed by this court, United States v. Gorny, 732 F.2d 597 (7th Cir. 1984). A more complete history of Gorny's dirty dealings is set forth in that opinion.
In 1987, the Supreme Court handed down its decision in McNally v. United States, U.S. , 1075. Ct. 2875 (1987). McNally held that the mail fraud statute, 18 U.S.C. § 1341, does not criminalize schemes to defraud the citizenry of its intangible right to have government affairs conducted honestly. Id. To fall within the ambit of § 1341, the indictment must allege a scheme to defraud the citizenry of a property right. Id.
Relying upon McNally, Gorny filed a Motion to Vacate the Conviction and Sentence Pursuant to Writ of Error Coram Nobis. Gorny alleged that he was convicted of a scheme to defraud the citizenry of its intangible right to good government, conduct which is not a crime under McNally. The district court granted his motion. The court also found that his convictions for racketeering and obstructing a federal investigation had to be vacated because those convictions ...