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United States v. Boender

June 21, 2010

UNITED STATES OF AMERICA
v.
CALVIN BOENDER



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Calvin Boender's "Motion for New Trial, Judgment of Acquittal and Arrest of Judgment" [207]. The motion was brought pursuant to Federal Rules of Criminal Procedure 33 (new trial), 29 (judgment of acquittal), and 34 (arresting judgment). For the reasons set forth below, Defendant's motion is respectfully denied.

I. Background

On, March 18, 2010, a jury found Defendant guilty of five offenses under the laws of the United States [185]. Defendant was convicted of corruptly giving things of value to then-City of Chicago Alderman Isaac Carothers ("Carothers") in violation of 18 U.S.C. § 666(a)(2); making contributions in the name of another in violation of 2 U.S.C. §§ 441f, 437g(d)(1)(A)(ii); making contributions in excess of Federal Election Campaign Act limits in violation of 2 U.S.C. §§ 441a(a)(1), 437g(d)(1)(A)(ii); and two counts of corruptly endeavoring to obstruct the due administration of justice in violation of 18 U.S.C. § 1503(a).

II. Legal Standard

A motion for a new trial is brought pursuant to Federal Rule of Criminal Procedure 33.

The Rule provides that the court "may vacate any judgment and grant a new trial if the interest of justice so requires." Newly discovered evidence is the only specifically listed basis in the rule (Fed. R. Crim. P. 33(b)(1)), although the rule allows for a new trial on "other grounds," so long as the interest of justice requires it. See Fed. R. Crim. P. 33(b)(2). In this case, Defendant does not argue that he is entitled to a new trial based on newly discovered evidence. See also United States v. Bender, 539 F.3d 449, 455-56 (7th Cir. 2008) (four-part test for new trial based on newly discovered evidence). The Seventh Circuit has indicated that a motion for a new trial may be granted if there was insufficient evidence to support a conviction or if there were errors in evidentiary rulings, both of which Defendant argues. See United States v. Christ, 513 F.3d 762, 775 (7th Cir. 2008). Other appropriate bases have been recognized in other cases, if only implicitly at times. See United States v. Hendrix, 482 F.3d 962, 967 (7th Cir. 2007) (prosecutorial misconduct); United States v. Taglia, 922 F.2d 413, 417 (7th Cir. 1991) (ineffective assistance of counsel); Brodie v. United States, 295 F.2d 157, 160 (D.C. Cir. 1961) (Burger, J.) (recognizing that the bases for a new trial that are embodied in Fed. R. Crim. P. 33(b)(2) are broad, though counseling that they are "temperately to be utilized").

Federal Rule of Criminal Procedure 29 provides that the Court must grant a motion for a judgment of acquittal on "any offense for which the evidence is insufficient to sustain a conviction." Evidence is sufficient to sustain a conviction so long as a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, "could have found the essential elements of a crime beyond a reasonable doubt." United States v. Irby, 558 F.3d 651, 653 (7th Cir. 2009); United States v. Thornton, 539 F.3d 741, 748 (7th Cir. 2008).

A motion to arrest the judgment is brought pursuant to Federal Rule of Criminal Procedure 34. The rule provides that the court must arrest judgment if "the indictment or information does not charge an offense." Thus, the rule raises a pure question of law distinct from the evidence adduced at trial. United States v. McLemore, 815 F. Supp. 432, 433 & n.3 (S.D. Ala. 1993) In this case, Defendant renews his contention, first raised in a motion to dismiss, that 2 U.S.C. § 441f does not allow for convictions on a so-called "conduit contribution" theory.

III. Analysis

A. Attorney-Client Privilege Issues

Defendant's motion argues that the Court made several errors when it allowed his former attorneys, Dan Reidy and Michael O'Connor, to testify against him at trial. The Court takes up each challenge below and concludes that each challenge is insufficient as a matter of law.

1. The Government made out a prima facie case that the crime-fraud exception to the attorney-client privilege applied.

Defendant first contends that the Government failed to marshal sufficient evidence to warrant a hearing on whether his communications with his lawyer, Dan Reidy ("Reidy"), fell within the crime-fraud exception to the attorney-client privilege. Defendant maintains that, from the information before the Court, "[a]ll that could be reasonably concluded was that there were privileged conversations during an initial attorney-client interview." Def. Mot. at 2. The communications at issue involve what Defendant told Reidy about an invoice that purported to bill then-Alderman Carothers for work that was done on Carothers's home. Evidence at trial supported the inference that Defendant created a false invoice and then lied to Reidy in an effort to thwart a grand jury investigation into Defendant's dealings with Alderman Carothers.

As a threshold matter, Defendant conflates the evidence adduced at the in camera hearing-including but not limited to the content of Defendant's initial conversation with Reidy-with the information that led the Court to order the in camera hearing in the first place. The overwhelming majority of Defendant's brief is devoted to advancing Defendant's gloss on the evidence that the Court heard at the in camera hearing; his brief does not focus on the information that was before the Court when it made its determination to hold the hearing. Thus, the majority of Defendant's arguments speak past the pertinent legal question, which is whether, at the time that the Court decided to hold an in camera hearing, the Government had "[brought] forth sufficient evidence to justify the district court in requiring the proponent of the privilege to come forward with an explanation for the evidence offered against it." United States v. BDO Seidman, LLP, 492 F.3d 806, 818 (7th Cir. 2007).

In a March 8, 2010 order [153] the Court fleshed out that question and elaborated on the case-law guideposts.*fn1 As the Court explained in the March 8 order,

To invoke the crime-fraud exception, "the party seeking to abrogate the * * * privilege must present prima facie evidence that 'gives colour to the charge' by showing 'some foundation in fact.'" BDO Seidman, 492 F.3d at 818 (quoting United States v. Al-Shahin, 474 F.3d 941, 946 (7th Cir. 2007)). If the challenging party meets this burden, the proponent of the privilege must "come forward with an explanation for the evidence offered against it." Id. If the Court finds the explanation "satisfactory," then the privilege remains. Matter of Feldberg, 862 F.2d 622, 626 (7th Cir. 1988). Otherwise, "the seal of secrecy is broken." Clark, 289 U.S. at 15; see also Sound Video Unlimited v. Video Shack, Inc., 661 F. Supp. 1482, 1486(N.D. Ill. 1987) (party seeking to abrogate the privilege must establish a connection between the "communications at issue and the alleged offense"). Notably, for the exception to the evidentiary privilege to apply, the Government is not required to show that a privilege holder actually succeeded in committing a crime; the wrongdoing "need only have been the objective of the client's communication." United States v. Collins, 128 F.3d 313, 321 (6th Cir. 1997); see also ATTORNEY CLIENT PRIVILEGE IN THE UNITED STATES § 8.2, at 25 & n.52 (collecting cases). Finally, it is the intent of the client, rather than the intent of the lawyer, that governs whether the crime-fraud exception applies. In re Sealed Case, 754 F.2d at 402. [153, at 6]. Thus, the first question that the Court had to address was the sufficiency of the Government's evidentiary proffer as set forth in its motion in limine [86]. Defendant made no challenge to the form that the proffer took. Prior to the hearing, the Government represented to the Court the following:

 Defendant told his partner, "I wish we had invoiced the Alderman back in 2004" [86, at 3].  A document purporting to be an invoice to Alderman Carothers, Bates labeled GJ 0000008, was prepared on a typewriter. The document was dated September 8, 2004. However, the letterhead on the invoice was for a Defendant-run company, Historic Homes, that had been defunct since 2002 [86, at 3].  According to Defendant's bookkeeper, the bookkeeper was the one who prepared the invoices for Historic Homes, not Defendant, and it was not the bookkeeper's practice to prepare invoices on a typewriter [86, at 3].  Neither the bookkeeper nor Defendant's partner had ever seen GJ 0000008 [86, at 7].  An expert who examined the typewriter and ribbons from Defendant's office suite was expected to testify that the corrective ribbon in the typewriter in April 2008 was used on GJ 0000008 (which, again, was dated four-years earlier) [86, at 8].  Dan Reidy, Defendant's attorney, sent an e-mail to the Government stating that GJ 0000008 was not prepared on September 8, 2004, and stating that the invoice was never sent to Alderman Carothers [86, at 3].

Additional important information, particularly in terms of chronology and surrounding circumstances, came from Defendant's response to the Government's motion [106]. Before Reidy met with the Government, Defendant met with Reidy and told him that there was an invoice to Carothers [106, at 3]. Reidy then met with the Government. When Reidy told the Government that his client had an invoice, the Government informed Reidy that it believed that the document was a fake [106, at 3]. Reidy sent the e-mail to the Government only afterward.

Thus, at the time that the Court was deciding whether an in camera evidentiary hearing was warranted, the information before the Court was that the government had multiple witnesses-two associates of Defendant and one forensic expert-whose testimony suggested that GJ 0000008 was a fake and that Carothers was never invoiced for the work on his home. Defendant's own representation to the Court was that, prior to his lawyer's meeting with the Governement, Defendant told his lawyer that he had invoiced Alderman Carothers. That information "gave colour to the charge" (BDO Seidman, 492 F.3d at 818) that Defendant had used his lawyer in an effort to get false documents to the Government and grand jury in an effort to help Defendant's case.

Again, under the Seventh Circuit case law, "prima facie evidence [of the crime-fraud exception] does not mean enough to support a verdict in favor of the person" who seeks the privilege's abrogation. United States v. Davis, 1 F.3d 606, 609 (7th Cir. 1993) (quotation marks omitted). In Davis, the defendant allegedly obstructed a grand jury investigation into former Cook County Sheriff James O'Grady. Davis was issued a subpoena for documents from his company (which allegedly had gotten business illegally). Davis's attorney, Lydon, met with an AUSA and presented a "completely innocent explanation for the relationship" between Davis's company and O'Grady. Id. at 609. More than five months after documents were produced pursuant to the subpoena, the Government learned that a document within the subpoena's ambit had not been turned over. Id. The omitted document indicated that Davis had "tricked ...


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