The opinion of the court was delivered by: Judge Joan H. Lefkow
In July 2006, following a jury trial, petitioners Robert Sorich,
Timothy McCarthy, and Patrick Slattery (collectively, "petitioners")
were convicted of mail fraud.*fn1 Sorich was sentenced
to forty-six months' imprisonment and a $10,000 fine. McCarthy was
sentenced to nineteen months' imprisonment and a $5,000 fine. Slattery
received a twenty-seven month sentence and a $5,000 fine. Their
convictions and sentences were affirmed by the Seventh Circuit. That
court denied rehearing en banc, over the dissent of Judge Kanne and
Judge Posner, and the Supreme Court denied certiorari, over Justice
Scalia's dissent. Petitioners then timely filed a petition pursuant to
28 U.S.C. § 2255 seeking to vacate their convictions.*fn2
Briefing on the petition was stayed pending the Supreme
Court's consideration of the constitutionality of the honest
statute, 18 U.S.C. § 1346, in three cases, Black, Skilling, and
Weyhrauch, that were pending before it. In Skilling, the Court limited
the scope of the honest services statute to cases involving bribes and
kickbacks. Skilling v. United States, --- U.S. ----, 130 S. Ct. 2896,
177 L. Ed. 2d 619 (2010). Based on this decision, petitioners argue
that their convictions should be set aside. For the following reasons,
the court denies the § 2255 petitions.
After the City of Chicago's hiring practices were challenged in federal court, the city agreed, in what is known as the Shakman decree, that employment decisions for the large majority of city jobs (non-Shakman exempt positions) are not to be based in any part on political considerations. A system was put into place to ensure compliance with the Shakman decree, including requiring that certifications be signed attesting that politics played no role in the hiring process. Despite these policies, hiring and promotions continued to be influenced by political factors.
Petitioners are former city employees who were involved in the
circumvention of the Shakman decree by awarding city civil service
jobs and promotions to individuals based on political patronage and
nepotism. This scheme was run out of the city's Office of
Intergovernmental Affairs ("IGA"), which formally served as a liaison
between the mayor's office and other city, state, and federal
governmental units. Unofficially, however, IGA functioned as the
patronage office, doling out jobs based not necessarily on merit but
rather on political work.*fn3 The patronage hiring
scheme penetrated various city departments, including the
Departments of Sewers, Streets and Sanitation, and Water.*fn4
Sorich, the assistant to IGA's director from 1993 to July
2005, was at the center of the patronage system. McCarthy became
Sorich's right-hand man in 2001 when he joined IGA after working as an
assistant commissioner charged with hiring and promotions at the
Department of Aviation. Slattery, also a long-time city employee and
Sorich's good friend, was the director of staff services for the
Department of Streets and Sanitation from 2000 to 2004, supervising
the hiring and promotion process.
After a federal investigation into the city's hired truck program led to an investigation of the city's hiring practices, petitioners were indicted on September 22, 2005. A second superseding eight-count indictment was returned on April 27, 2006. Petitioners were charged with violating 18 U.S.C. § 1341 and § 1346 as part of a scheme to defraud the people of the City, and the City, of money, property and the intangible right to the honest services of SORICH, McCARTHY, SULLIVAN, SLATTERY, Katalinic*fn5 and other City employees participating in the hiring and promotion process, and to obtain money and property by means of materially false and fraudulent pretenses, representations, promises and material omissions . . .
Crim. R. 140, ¶ 12.*fn6 Each count charged a separate mailing made in furtherance of the scheme. The government's honest services theory was based, in large part, on violations of the Shakman decree. The court ruled in a pretrial motion that the indictment did allege a deprivation of money or property, namely the city's property right to control how its money is spent. United States v. Sorich (Sorich I), 427 F. Supp. 2d 820, 827--28 (N.D. Ill. 2006).
The case was tried to a jury over an eight-week period. After several days of deliberation, the jury returned a general verdict on each count. Sorich was convicted of two counts of mail fraud and acquitted of two counts, while McCarthy and Slattery were each convicted of one count of mail fraud.*fn7 A summary of the trial follows.
The government opened its presentation stating that the case was about "breach of the public trust," a trust petitioners "had a duty to uphold on behalf of the taxpayers and the residents of the City of Chicago." Trial Tr. 33:10--11, 13--14. It explained that the case was about "rewarding political workers with City jobs," "rigging the promotion process for City jobs," and "violating the law, including [the Shakman] federal court order which unmistakably and unequivocally banned political considerations for these very jobs." Id. at 37:25--38:4. The government specified that petitioners sought to defraud the city and its taxpayers of jobs: "the currency and the fuel and the gasoline for this scheme were [city] jobs." Id. at 42:13--14; see also id. at 41:19--20 ("[T]he property we're talking about is the jobs."); id. at 77:13--17 ("But when taxpayer jobs are the fuel for this scheme, are the reward or the carrot for participating in the Mayor's organization, political organization, that's wrong, and we submit to you that the evidence will show at the end of the case that that's a crime."). The government maintained that the evidence would show that petitioners committed fraud by rigging the hiring process in favor of those who were politically active or had clout. Id. at 76:8--15. The losers of the scheme were said to be qualified but unsuccessful and unconnected city job applicants and city taxpayers. Id. at 78:12--13, 18--20.
Petitioners maintained that their actions were not criminal. They contended that a Shakman violation, even if shown, did not amount to mail fraud. Id. at 81:17--23,123:1--6. Sorich and McCarthy also emphasized that they only made recommendations for jobs, see, e.g., id. at 129--30, 138--39, and that there were many instances where IGA's recommendations were not followed, see, e.g., id. at 142. Slattery maintained that he took valid considerations into account when filling out rating forms for hiring sequences. Id. at 188--90, 196--97. Slattery also predicted that the evidence would not show that he was aware that IGA was dictating personnel decisions. Id. at 201--02.
The government presented various witnesses, many of whom were also implicated in the scheme and thus testified under grants of immunity or plea agreements. Mary Jo Falcon, Phyllis Bergthold, and Jack Drumgould, former personnel officers at Sewers, Water, and General Services and Streets and Sanitation, respectively, testified that they would receive a list (which Falcon called the "blessed list," id. at 519) from Sorich or McCarthy with names of people who should be interviewed and hired for specific positions. See, e.g., id. at 207--305 (Falcon); 2654--60 (Bergthold); id. at 1321--33 (Drumgould). At times, the list was provided after interviews had already taken place, meaning that interview rating forms were filled out after the fact and not actually based on previously taken notes. Id. at 1084 (testimony of John Kosiba, former assistant commissioner of Water); id. at 1396 (Drumgould). Scores given to candidates reflected not their qualifications but rather whether the candidate was on IGA's list or not.*fn8 Id. at 1411. Whether Sorich was even aware of the requirements for certain positions or his recommended hires' job skills was called into doubt by the testimony. See id. at 1746. Catharine Hennessy, who worked as a labor relations liaison in Streets and Sanitation, testified that, in response to a union inquiry about a hiring sequence, Slattery told her that the selection process was not based on performance or attendance. Id. at 2264. Several witnesses testified that the most qualified applicants often were not selected. Id. at 1783, 1786, 1802 (testimony of Hugh Donlan, personnel liaison in Streets and Sanitation's Bureau of Electricity); id. at 2476--77 (testimony of Donald Tomczak, former first deputy commissioner of Water); id. at 2758 (testimony of Carmen Iacullo, former deputy commissioner of Transportation). Tomczak testified that, due to the inexperience and incompetence of several patronage hires, he was required to bring in backup to cover their positions. Id. at 2489, 2506--07. But Tomczak and Dan Katalinic, former deputy commissioner of street operations for Streets and Sanitation, testified that they did not submit names of unqualified workers to IGA for patronage slots. Id. at 2159 (Katalinic); id. at 2549, 2551 (Tomczak).
While the commissioner of each department officially had final authority over personnel decisions, several witnesses testified that IGA actually had the final say. See id. at 1193:12--17 (Kosiba); id. 1647--48 (Drumgould); id. 2215 (Katalinic). Falcon testified that she was told that she should always deny IGA having any role in hiring. Id. at 291, 294:13--14 (Falcon was told that "if anybody asked [her] about IGA's involvement in the hiring process, that [she] shouldalways deny, deny, deny"). While Falcon was never threatened with an adverse employment action if the names on the "blessed list" were not hired, she testified that she manipulated rating forms and falsely signed Shakman certifications because it was her job and "part of the culture."*fn9
Some of these same witnesses also testified about seeking help from Sorich and McCarthy in their roles as political coordinators. Falcon, Katalinic, Tomczak, and Iacullo all discussed the process of seeking positions for those who worked in their political organizations. Id. at 522--25 (Falcon); id. at 1995, 2018--19 (Katalinic); id. at 2459--67 (Tomczak); id. at 2742--43 (Iacullo). Not all the names presented to Sorich or McCarthy at IGA would appear on the lists, however. See id. at 1065, 1068 (Kosiba); id. at 1525 (Drumgould testified that coordinators usually submitted twice as many names as they were going to receive places for); id. at 2047 (Katalinic). Kosiba testified Sorich told him this was because he had many people coming to him with requests. Id. at 1097:7--13. Union contracts also restricted IGA's influence over certain hiring sequences. Id. at 1593. In fact, some ...