MEMORANDUM OPINION AND ORDER
On June 20, 1991, we denied various motions to dismiss filed by defendants Pasquale Marcy and Fred Roti, including Marcy's motion to dismiss racketeering act 3 and Count XIII. United States v. Marcy, No. 90 CR 1045, slip op. at 4-6 (N.D. III. June 20, 1991). We rejected Marcy's contention that as a private citizen he "must be legally incapable of committing extortion 'under color of official right.'" Id. at 4. Marcy has now filed a motion to reconsider this ruling in light of the Seventh Circuit's recent opinion in United States v. McClain, 934 F.2d 822 (7th Cir. 1991).
We reconsider our opinion in light of McClain, but reaffirm our denial of Marcy's motion to dismiss.
As we pointed out in our prior opinion, the government alleges that Marcy and Roti committed extortion in violation of 18 U.S.C. § 1951 (1988). It details this charge in racketeering acts 2(E)-(H) and 3, and Counts VIII, IX, X, XI, and XIII. After considering Marcy's arguments to the contrary, we found that
the simple fact that Marcy is not a public official does not preclude an "official right" extortion prosecution. If Marcy aided, abetted, or conspired with a public official to commit extortion he is guilty of violating § 1951 regardless of his own official or non-official position. United States v. Finley, 705 F. Supp. 1272, 1279-83 (N.D. III. 1988). Further, if the victim reasonably perceives the defendant as exercising control over official decisionmaking, a § 1951 "official right" charge is also proper. United States v. Phillips, 586 F. Supp. 1118 (N.D. Ill. 1984); accord Finley, 705 F. Supp. at 1279-82. We accept in the context of the motion to dismiss the government's representation that it "expects to be able to establish [that Marcy had the actual or residual or anticipated official power to deliver on his promises]," far more than it needs to do to withstand dismissal of the "official right" allegations. Consolidated Response at 12.
United States v. Marcy, slip op. at 4.
Marcy now contends that, in McClain, the Seventh Circuit "held that a private person could not commit extortion under color of official right," Motion to Reconsider at 2, and, indeed, "reversed aspects of the district court's opinion on the color of official right' issue in Finley," id. at 2 n.2; see also Defendants' Supplemental Memorandum at 4 (Seventh Circuit has "settled" a district court split and "established that Pat Marcy, a private citizen, cannot be indicted for allegedly committing extortion under color of official right.'"). This, he suggests, warrants dismissal of racketeering act 3 and Count XIII.
We do not read McClain so broadly, however. The Seventh Circuit--in dicta (see McClain, slip op. at 27 (Easterbrook, J., concurring))--did say that "as a general matter and with caveats as suggested here, proceeding against private citizens on an 'official right' theory is inappropriate under the literal and historical meaning of the Hobbs Act, irrespective of the actual 'control' that citizen purports to maintain over governmental activity." McClain, slip op. at 16. Significantly, though, the court acknowledged that its analysis "does [not] grant private persons immunity from 'official right' suits when they act in coordination with public officers." Id. at 15.
The court cited United States v. Margiotta, 688 F.2d 108, 130-133 (2d Cir. 1982), in support of its "coordinated action" exception. As the government points out, "the Second Circuit held that Margiotta could be convicted of extortion by taking money himself and causing a public official to act, 'even though the public official may have been a mere innocent intermediary,' 688 F.2d at 132, and even though 'it is likely that the public officials [themselves] could not be found guilty of a Hobbs Act violation under color of official right.' Id. As the court held, once the defendant took the money and caused the public officials to act, the defendant was properly viewed as having adopted not only [the officials'] act but [their] capacity as well.' Id." Response to Supplemental Memorandum at 5 (quoting McClain).
Racketeering act 3(B), really the only subpart of racketeering act 3 at issue,
and Count XIII allege that Marcy "sold a Cook County Circuit Court Associate Judgeship in that he agreed to accept and tender a bribe from a relative of a person seeking a position as an Associate Judge of the Circuit Court of Cook County, and then successfully made efforts to obtain a judgeship for that person." See Count I, para. 10 (detailing judgeship allegation). Associate Judges in Cook County are selected by public officials. Id. at para. 2(D)(2). Further, the indictment alleges that Marcy "together with others known and unknown to the grand jury, did commit and cause to be committed," inter alia, § 1951 extortion. These allegations, taken together, aver that Marcy acted in coordination with certain public officers (those persons, "known and unknown to the grand jury," responsible for the selection of Associate Judges) in such a manner as to expose himself to an "official right" charge. Whether or not the government at trial can offer evidence to prove the requisite elements of the offense charged, the charges, as stated in the indictment, are certainly sufficient to withstand a motion to dismiss.
Accordingly, we deny Marcy's motion to reconsider. It is so ordered.