IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
July 2, 2008
UNITED STATES OF AMERICA, PLAINTIFF,
EDWARD R. VRDOLYAK, DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
This Court's March 10, 2008 memorandum opinion and order ("Opinion") dealt at length with the motion to dismiss that had been filed on behalf of Chicago attorney Edward Vrdolyak, focusing primarily on the question whether a defendant's conduct that deprived a private-sector party of the "intangible right of honest services" requires a showing that the misuse of a fiduciary position for gain has to be at the expense of the victim. It appears that the Opinion's discussion and analysis have been overtaken by last week's decision of our Court of Appeals in United States v. Black, Nos. 07-4080, 08-1030, 08-1072 and 08-1106, 2008 WL 2512906 (7th Cir. June 25), which rejected defendants' position there "that for the statute [18 U.S.C. §1346] to be violated, the private gain must be at the expense of the persons (or other entities) to whom the defendants owed their honest services" (id. at *2). And that determination followed citations (id.) not only to United States v. Bloom, 149 F.3d 649, 655-57 (7th Cir. 1998) but also to United States v. Hausmann, 345 F.3d 952, 955-57 (7th Cir. 2003), the latter of which case the Opinion had pointed to as a potential indicator that our Court of Appeals might distinguish between "private" and "public" Section 1346 cases (as other circuits have).
Accordingly it appears that Black has made the prosecution's task easier in this case. This Court is of course willing to entertain further submissions from the parties on the subject, but it feels constrained to draw the attention of counsel specifically to the position articulated in Black.
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