overall trial and the arguments by counsel." Id.
The basis for LeFevour's challenge is the instruction which stated that "the government must prove the scheme to defraud alleged in paragraph 2(a) or 2(b), or 2(c), or 2(d), but [need] not prove all of them." Subparagraphs 2(a), 2(b), and 2(c) all alleged deprivations of intangible rights, while subparagraph 2(d) alleged a deprivation of property.
Because the Court also instructed the jury that the government must prove that the defendant "knowingly participated in the scheme to defraud as described in the various counts of the indictment," the challenged instruction was harmless error. There was only one parking ticket scheme described in the indictment and proved at trial, although it resulted in deprivations of both intangible and property rights. Because the charge included a reference to the scheme alleged in the indictment, the single instruction LeFevour challenges was not unduly prejudicial in light of the instructions as a whole. See Messinger, 872 F.2d at 224; Doe, 867 F.2d at 990.
Moreover, even viewed in isolation, the challenged instruction was harmless since there was absolutely no way for the jury to find LeFevour guilty of the allegations in subparagraphs 2(a), 2(b), or 2(c) -- deprivations of intangible rights, without also finding him guilty of the property deprivations alleged in subparagraph 2(d). Based upon the evidence at trial, the jury could not have found that LeFevour defrauded the citizens of Cook County of their right to his honest services without finding that he had defrauded the City of revenue, for other than the bribery scheme there was no other basis for finding that he had acted dishonestly. See United States v. Bonansinga, 855 F.2d 476, 479 (7th Cir. 1988). The challenged instruction by no means "so infected the entire trial" that the resulting conviction violates due process.
LeFevour's motion, to the extent it seeks to vacate his convictions based on the parking ticket scheme, Counts 2 through 36, is denied.
THE HUSTLERS CLUB SCHEME
As noted above, the Seventh Circuit has recognized that cash bail bonds, which are security interest, constitute property rights. See Messinger, 872 F.2d at 220. In the Hustlers' club scheme, the corrupt lawyers' role was to find and arrange to represent defendants who had posted cash bonds, with the understanding that the attorney would receive the defendants' CBR's as payment. The CBR's were integral to this scheme, for the source of the bribes was the CBR's. LeFevour did not require that he be paid any bribes until after the Club had been in operation for a few weeks so that the attorneys would have the chance to collect sufficient CBR's from which to pay the bribes. When the attorneys later sought to cut their monthly bribes to LeFevour in half, they complained to LeFevour's bagman, who in turn relayed the message to LeFevour, that "they weren't making enough money in those courtrooms to afford the current amount." Similarly, when the attorneys first proposed the scheme, they explained to both LeFevour and the judges presiding over the Club courtrooms that they would pay off the presiding judges "after they made a certain amount of money in each of the club courtrooms." Thus, the very point of the Hustlers' Club scheme was to use the CBR's to generate income for all of the participants; the attorneys essentially acted as conduits, obtaining the CBR's from the defendants and then passing along a share of the funds to the various judges. The corrupt judges in the Club courtrooms had a strong incentive to dispose of hustled cases quickly and favorably to the defendant in order to ensure that Club participants received a constant flow of CBR's from which to pay bribes. Making preliminary rulings favorable to the hustlers' clients had the effect of terminating their cases prematurely, was depriving the state of property by accelerating the return of the cash bond. See Messinger, 872 F.2d at 221. Even in cases where the corrupt judges did not actually accelerate the return of the cash bond, there was still a property deprivation because the CBR's were perverted in that they were now intended to be used for bribes rather than as security. See Ward v. United States, 845 F.2d 1459, 1462 (7th Cir. 1988). At the very least, this scheme had a significant potential to deprive Cook County of its property rights in the bonds, and no more is required. See Bailey, 859 F.2d at 1276; Keane, 852 F.2d at 205.
Because the success of the scheme here depended upon a sufficient flow of CBR's to the hustlers, this case is readily distinguishable from Ward where the cash bond was refunded in the ordinary course and the state's property interest in the bond was not affected by the use Ward made of it after it was returned. 845 F.2d at 1462. Unlike this case, the judge in Ward received his bribe before any cash bond funds were returned and did not necessarily even know that the return of the funds was part of the scheme. Ward, 845 F.2d at 1461. In fact, as the Seventh Circuit noted, the judge could have carried out his part of the agreement even if he had sentenced the defendant to a fine equal to the cash bond rather than imprisonment. Ward, 845 F.2d at 1462. In the present case, by contrast, the bribes were paid from cash bond refunds, and all of the parties recognized that the more cash bond refunds that were returned, the more they stood to profit. That LeFevour did not necessarily receive the identical bills generated by the CBR's is not fatal. Whereas the point of the scheme in Ward was just to obtain a favorable decision in exchange for cash, the point of the scheme here was to obtain the CBR's; after all, the agreement only provided for the attorneys to hustle defendants who had posted cash, and the bribes were only to be paid after the attorneys had time to collect sufficient CBR funds. LeFevour's scheme unquestionably "impaired or endangered" the state's interest in the bonds. See Ward, 845 F.2d at 1463. Furthermore, McNally does not require that actual loss of money or property be alleged in the indictment. See United States v. Bucey, 876 F.2d 1297, 1311 (7th Cir.) ("Since the mail fraud statute punishes the scheme to defraud, this court has reiterated on numerous occasions that the ultimate success of the fraud and the actual defrauding of a victim are not necessary prerequisites to a successful mail fraud prosecution.") (citations omitted & emphasis in original). cert. denied, 493 U.S. 1004, 107 L. Ed. 2d 560, 110 S. Ct. 565 (1989).
Since the Hustlers' Club scheme caused a property deprivation, the indictment, evidence, and jury instructions must now be examined to determine whether the jury necessarily had to convict LeFevour for defrauding Cook County of its property rights in the cash bonds. Messinger, 872 F.2d at 221.
With respect to the indictment, looking beyond the language used to characterize the scheme to the underlying substance of the indictment, it ultimately alleges a scheme involving money or property. See Folak, 865 F.2d at 113. Paragraph 2 of the Hustlers' Club counts describes the scheme using only the intangible rights language fund in subparagraph 2(a) through 2(c) of the parking ticket counts. However, this is not fatal because paragraph 11 of the Hustlers' Club counts alleges that:
It was further a part of the scheme to defraud that [the attorneys] received by mail cash bond refunds . . . for the cases they obtained, solicited, and "hustled" at the Branch Courts in connection with their cash payments to RICHARD F. LeFEVOUR.