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U.S. v. GENOVA

February 13, 2002

UNITED STATES OF AMERICA, PLAINTIFF,
V.
JEROME P. GENOVA, LAWRENCE P. GULOTTA, AND JEROME J. STACK, DEFENDANTS.



The opinion of the court was delivered by: Judge Ruben Castillo, United States District Judge:

MEMORANDUM OPINION AND ORDER

On August 27, 2001, at the conclusion of a three week trial, a jury returned a verdict against Defendants Jerome Genova and Jerome Stack on a six count indictment charging them with racketeering, mail fraud and theft of fund offenses. Specifically, Genova, the former Mayor of Calumet City, was convicted of racketeering (Count One), mail fraud (Count Four) and theft of funds (Counts Five and Six). Stack, the former Commissioner of Public Works of Calumet City, was convicted of racketeering (Count One) and theft of funds (Counts Five and Six). Also, on October 22, 2001, this Court issued an opinion in which it found Lawrence Gulotta, the former City Prosecutor of Calumet City, guilty of racketeering (Count One), mail fraud (Counts Two, Three and Four) and theft of funds (Counts Five and Six). Defendants have each filed motions for a judgment of acquittal and/or for a new trial and have adopted the arguments of their co-defendants. The Government filed a consolidated response to all of the motions. For the following reasons, Defendant Genova's motion for a judgment of acquittal on Counts Five and Six, racketeering acts 1(b), 3(b), 4(b) and 18(a) and for a new trial is granted in part and denied in part, (R. 145), Defendant Gulotta's motion for a judgment of acquittal and/or for a new trial is denied in its entirety, (R. 146), Defendant Stack's motion for a judgment of acquittal notwithstanding the verdict is granted in part and denied in part, (R. 147), and Stack's motion for a new trial is denied, (R. 148).

RELEVANT FACTS

We will assume familiarity with the facts of this case based on the evidence presented at trial and this Court's opinion in United States v. Genova, 167 F. Supp.2d 1021 (N.D. Ill. 2001). Moreover, given the multiple defendants and charged offenses in this case, we will address the relevant facts for each defendant as part of our analysis of that defendant's arguments.

LEGAL STANDARDS

The legal standards that apply to the instant motions are well-established. In determining whether a judgment of acquittal is appropriate, the Seventh Circuit explained that:

"[T]he test that the court must use is whether at the time of the motion there was relevant evidence from which the jury could reasonably find [the defendant] guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the government . . . bear[ing] in mind that `it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences.'"

United Slates v. Reed, 875 F.2d 107, 111 (7th Cir. 1989) (quoting United States v. Marquardt, 786 F.2d 771, 780 (7th Cir. 1986)). The Court may grant a motion for acquittal "only when the relevant evidence is sufficient to prove all the elements of the charged offence." United States v. Beck, 615 F.2d 441, 448 (7th Cir. 1980). The evidence adduced at trial is sufficient if "any rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt, viewing the evidence and every reasonable inference in the light most favorable to the prosecution." United States v. Colonia, 870 F.2d 1319, 1326 (7th Cir. 1989) (citation omitted). Simply put, the Court can overturn the verdict "[o]nly when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Moore, 764 F.2d 476, 478 (7th Cir. 1985) (citation omitted).

Similarly, the circumstances under which the Court may grant a new trial are limited. The evidence adduced at trial must weigh so heavily against the verdicts that the Court "believes there is a serious danger that a miscarriage of justice has occurred — that is, that an innocent person has been convicted . . . ." United States v. Morales, 902 F.2d 604, 606 (7th Cir. 1990). The Court "may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable . . . ." United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989) (quotation omitted). Although the decision to grant or deny a new trial is within the discretion of the trial court and will not be disturbed on appeal unless there has been an error as a matter of law or a clear and manifest abuse of discretion, "[m]otions for new trial based on weight of the evidence are not favored." Id. Consequently, we are `to grant them sparingly and with caution, doing so only in those really "exceptional cases.'" Id.

ANALYSIS

The post-trial motions submitted for this Court's review by Defendants Genova, Gulotta and Stack ask us to vacate and set aside the guilty verdicts rendered by the jury and by this Court, and to enter a judgment of acquittal and/or to order a new trial. We now proceed to address each of the defendant's arguments in turn.

I. Genova's Motion for a Judgment of Acquittal and for a New Trial

On August 27, 2001, the jury returned a verdict finding Defendant Genova guilty of racketeering, as charged in Count One of the Indictment. In particular, the jury's itemized verdict found that Genova had committed the following racketeering acts: 1(a) (mail fraud — 1994 attorney fees); 1(b) (official misconduct — 1994 attorney fees); 1(b)(1) (statement of economic interest); 1(c) (bribery (d) — 1994 attorney fees); 2(c) (bribery (d) — 1995 attorney fees); 3(b) (official misconduct — 1996 attorney fees); 3(b)(1) (statement of economic interest); 3(c) (bribery (d) — 1996 attorney fees); 4(a) (mail fraud — 1997 attorney fees); 4(b) (official misconduct — 1997 attorney fees); 4(b)(1) (statement of economic interest); 4(c) (bribery (d) — 1997 attorney fees). Thus, the jury found that Genova's receipt of attorney's fees in each of the charged years violated Illinois official misconduct and bribery laws and federal mail fraud laws. Moreover, the jury convicted Genova of racketeering act 18(a), which charged the state crime of intimidation. With respect to the separate mail fraud charges, Defendant Genova was convicted of Count Four, which related to his March 26, 1998 statement of economic interest. Genova was acquitted, however, of Counts Two and Three, which related to his 1996 and 1997 statements of economic interest, respectively. Finally, Genova was also convicted of the two theft of funds charges alleged in Counts Five and Six.

In his motion for a judgment of acquittal and for a new trial, Genova makes the following arguments: (1) this Court should enter a judgment of acquittal as to racketeering acts 1(b), 3(b) and 4(b) because a violation of the Illinois official misconduct statute cannot serve as a RICO predicate act where, as here, Genova's conduct — failing to disclose a source of income on his statements of economic interest — would not constitute the requisite act of bribery under either Illinois or federal law; (2) he is entitled to a judgment of acquittal as to racketeering act 18(a) because intimidation cannot be a RICO predicate act where, as here, the jury specifically acquitted Genova of extortion; (3) he is entitled to a new trial because the Court's instruction to the jury that official misconduct is a form of bribery was erroneous as a matter of law; (4) he is entitled to a judgment of acquittal on Counts Five and Six of the Indictment because the Government failed to prove beyond a reasonable doubt that Genova stole, obtained by fraud or otherwise converted Calumet City funds having a value of at least $5,000 for the years 1996 and 1997; and (5) this Court should order a new trial because there is a reasonable possibility that the introduction of a dictionary definition of the term "bribe" into the jury's deliberations had a prejudicial impact on Genova.

In its consolidated response, the Government argues that: (1) Genova is not entitled to acquittal on racketeering acts 1(b), 3(b) and 4(b) because the charged violations of the Illinois official misconduct statute fall well within the ambit of the Seventh Circuit's definition of generic bribery as a RICO predicate act in United States v. Garner, 837 F.2d 1404, 1417-19 (7th Cir. 1987); (2) Genova's argument challenging the sufficiency of the evidence on the intimidation count must fail because it cannot be said that no reasonable jury could have convicted Genova of racketeering act 18(a); (3) the clear language of Garner belies Genova's assertion that Government Supplemental Instruction 30a was an incorrect statement of the law; (4) Genova was properly convicted of Counts Five and Six — converting government monies in violation of 18 U.S.C. § 666 — because both finders of fact concluded that the entire business relationship between Defendant Gulotta's law firm, Genova and Calumet City was corrupt; and (5) an objective view of the entire trial and the nature of the verdicts compel a finding that the introduction of the dictionary definition of "bribe" did not prejudice Genova, and therefore his motion for a new trial should be denied.

A. Racketeering Acts 1(b), 3(b) and 4(b)

The Indictment charged in racketeering acts 1(b), 3(b) and 4(b) that Genova's financial relationship with Gulotta constituted a RICO predicate act*fn1 because it violated the Illinois official misconduct statute, which provides that:

A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts: . . . (c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority[.]

720 ILCS 5/33-3(c). More specifically, the Indictment charged that Genova violated § 33-3(c) by:

perform[ing] acts in his official capacity as Mayor and in excess of his lawful authority, namely: (1) filing a Statement of Economic Interest signed by defendant Genova, falsely declaring that defendant Genova had not served in any advisor capacity for any professional organization from which in excess of $1,200 was received by defendant Genova during the preceding calendar year and that defendant Genova had not rendered professional services to the Law Firm from which defendant Genova had received fees in excess of $5,000 during the preceding calendar year, in violation of 5 ILCS 420/4A-101 and 107[.]

See, Indictment Count One (Sub-Acts 1(b)(1), 3(b)(1) and 4(b)(1)). The Indictment further charged that Genova violated § 33-3(c) by taking and maintaining a prohibited interest in a contract in violation of § 3 of the Public Officer Prohibited Activities Act, 50 ILCS 105/3. See id. (Sub-Acts 1(b)(2), 3(b)(2) and 4(b)(2). The jury, however, found that Genova committed only Sub-Acts 1(b)(1), 3(b)(1) and 4(b)(1).

Genova argues that his conduct — failing to disclose his financial relationship with Gulotta on statements of economic interest he filed in 1995, 1997 and 1998 — is an insufficient basis for the Illinois official misconduct statute to serve as a RICO predicate act. Specifically, Genova maintains that his purported violation of § 33-3(c), unlike a violation of § 33-3(d),*fn2 cannot be characterized as bribery pursuant to § 1961(1)(a) because the filing of false statements — even with the intent to obtain a personal advantage ...


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