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United States of America v. Jon Burge

January 3, 2011


The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge


Before the court are post-trial motions by defendant Jon Burge seeking judgment of acquittal and arrest of judgment under Federal Rules of Criminal Procedure 29 and 34 [#300] and a new trial under Federal Rule of Criminal Procedure 33 [#302]. Defendant was convicted of three counts: (1) obstructing justice in violation of 18 U.S.C. § 1512(c)(2) by signing false answers to the first set of interrogatories propounded in Hobley v. Jon Burge, et al., No. 03 C 3678, a civil rights case filed in this court (referred to herein as "Hobley"); (2) perjury in violation of 18 U.S.C. § 1621(1) by providing false answers to the second set of interrogatories propounded in Hobley; and (3) obstructing justice in violation of 18 U.S.C. § 1512(c)(2) by signing false answers to the second set of interrogatories propounded in Hobley.*fn1 For the following reasons, the motions are denied.


Federal Rule of Criminal Procedure 29 provides, in pertinent part, that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). When requesting a judgment of acquittal under Rule 29, a defendant "faces a nearly insurmountable hurdle [because] . . . [the court] consider[s] the evidence in the light most favorable to the Government, defer[s] to the credibility determination of the jury, and overturn[s] a verdict only 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. Blassingame, 197 F.3d 271, 284 (7th Cir. 1999) (quoting United States v. Moore, 115 F.3d 1348, 1363 (7th Cir. 1997)); see also United States v. Benjamin, 116 F.3d 1204, 1206 (7th Cir. 1997) (in ruling on a motion for judgment of acquittal pursuant to Rule 29, district court must consider "whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt").

Federal Rule of Criminal Procedure 34 governs defendant's motion for an arrest of judgment, which provides, in relevant part, that the court "must arrest judgment if . . . the indictment or information does not charge an offense." Fed. R. Crim. P. 34(a)(1).

Under Federal Rule of Criminal Procedure 33, a court may grant a new trial "if the interest of justice so requires." "The decision to grant or deny a motion for new trial rests within the sound discretion of the trial court." United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989). The court may grant a new trial "in a variety of situations in which trial errors or omissions have jeopardized the defendant's substantial rights." United States v. Reed, 986 F.2d 191, 192 (7th Cir. 1993) (citation omitted). Such motions are disfavored and are granted only in extreme cases. See, e.g., United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998). To justify a new trial, an evidentiary ruling must be not only error but harmful error. United States v. Owens, 424 F.3d 649, 653 (7th Cir. 2005) ("[W]hen reviewing evidentiary errors, we will only reverse and order a new trial provided that the improper admission was not harmless, which is to say 'only if the error had a substantial influence over the jury, and the result reached was inconsistent with substantial justice.'" (quoting United States v. Hernandez, 330 F.3d 964, 969 (7th Cir. 2003))). In deciding whether a new trial should be granted under Rule 33, the court "may properly consider the credibility of witnesses, and may grant a new trial if the verdict is so contrary to the weight of the evidence that a new trial is required in the interest of justice." United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999).


I. Motion for Judgment of Acquittal and Arrest of Judgment

A. Counts I and III - Obstruction of Justice

Defendant first argues that the submission of false answers to an interrogatory does not constitute obstruction of an "official proceeding" under 18 U.S.C. § 1512(c)(2). Section 1512(c)(2) provides that "[w]hoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined . . . or imprisoned not more than 20 years, or both." In support of his contention that his conduct could not have amounted to obstruction of an "official proceeding," defendant cites Dunn v. United States, 442 U.S. 100, 99 S. Ct. 2190, 60 L. Ed. 2d 743 (1979), wherein the Supreme Court held that providing a sworn statement to a private attorney did not constitute a "proceeding" within the meaning of a federal perjury statute.

The perjury statute at issue in Dunn, however, differs from the obstruction of justice statute at issue here. Significantly, 18 U.S.C. § 1623, which the Court examined in Dunn, prohibits false declarations made under oath "in any proceeding before or ancillary to any court or grand jury of the United States." 18 U.S.C. § 1623(a) (emphasis added). It is clear from the language of the statute that section 1623 is concerned with false statements made "in" a court proceeding. Thus, in deciding that providing a false affidavit to a private attorney did not constitute conduct prohibited under section 1623, the Supreme Court focused on the fact that section 1623 had been enacted "to facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries." 442 U.S. at 107 (emphasis added). The Court's reasoning in Dunn does not assist defendant because the actions prohibited under section 1512, unlike section 1623, are not limited to those that might occur inside the courtroom. Indeed, under section 1512 the false testimony or document need not be admissible as evidence before the court. See 18 U.S.C. § 1512(f)(2). Furthermore, the "proceeding" at issue need not be pending or even about to be instituted at the time when the offense occurs; it is enough that a defendant's actions would be likely to affect a foreseeable proceeding. See 18 U.S.C. § 1512(f)(1); United States v. Matthews, 505 F.3d 698, 708 (7th Cir. 2007). Here, defendant's false answers to the interrogatories would have "obstruct[ed]" or "influence[d]" the ongoing proceedings in Hobley, see 18 U.S.C. § 1512(c)(2), because they related to facts that went to the crux of Hobley's civil rights claims. For these reasons, the court rejects defendant's argument that he did not obstruct an "official proceeding" under section 1512.*fn2

Defendant next argues that the court improperly instructed the jury that defendant could be found guilty for either a completed offense or an attempt. Defendant contends that the government did not introduce evidence that his answers to the interrogatories were filed or otherwise used in the Hobley proceeding and that therefore the jury should only have been permitted to consider an attempt. Defendant's characterization of the evidence is not persuasive. The evidence at trial established that Hobley involved a Monell claim that the City of Chicago had a policy of failure to properly supervise its officers. Undoubtedly, if defendant had admitted to engaging in torture or supervising others who engaged in torture, then the plaintiff's Monell claim would have been helped by the admissions. Once defendant denied having engaged in torture, however, the plaintiff in Hobley could hardly be expected to file documents indicating the absence of material evidence that would have supported his claims against the City. Defendant's argument that there is no proof that he obstructed the Hobley proceeding misconstrues the nature of the crime for which he was convicted. The jury was properly instructed regarding both the completed and attempted offense.

B. Count II - Perjury

Defendant argues that his conviction for perjury fails as a matter of law because the government did not establish that he took an "oath" when he answered the interrogatories propounded in Hobley. Pursuant to 18 U.S.C. ยง 1621(1), an individual is guilty of perjury if he has "taken an oath before a competent tribunal, officer, or person" and "willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true." The evidence presented at trial showed that defendant went to a notary public who showed him the document that had an oath on it, directed his attention to the oath, and asked him to confirm that it was correct. The written oath states: "I, Jon Burge, after first being duly sworn, ...

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