Appeal from the Circuit Court of Cook County. 07 CR 25197 Honorable Thomas J. Hennelly, Judge Presiding.
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Presiding Justice Steele and Justice Salone concurred in the judgment and opinion.
¶ 1 In this prosecution for financial institution fraud and other crimes, the trial court held that attorney-client privilege barred the State from calling defendant-Appellee Budimir Radojcic's former attorney as a witness. We address two questions in the appeal: (1) Did the trial court follow proper procedures for deciding whether to bar the proposed witness; and
(2) Did the evidence show that the attorney-client privilege applied to the communications between the defendant and his former attorney.
¶ 2 We hold that before the trial court excludes testimony from an attorney because of attorney-client privilege, the court must consider whether the party seeking to use the testimony has made a sufficient showing to give the court reason to question witnesses in camera to determine whether the attorney-client privilege applied to the communications between the attorney and the client. We find that the State presented testimony that would give a reasonable person cause to suspect that the client here used his communications with his attorney to advance his attempts to commit crimes or fraud. Accordingly, we hold that attorney-client privilege does not preclude testimony from the attorney here, and we reverse, and remand for a trial at which the State may call the attorney as a witness.
¶ 4 From 2002 through 2008, Mark Helfand represented Budimir Radojcic in connection with several real estate transactions. Federal investigators who studied some of the transactions believed they saw evidence of crimes. In August 2007, the Illinois Attorney General sought to persuade a grand jury to return indictments against Radojcic, Helfand and several other persons involved in the real estate transactions.
¶ 5 Christa Patterson testified before the grand jury that Radojcic hired her to work for Jewel Windows, a corporation he operated. Patterson explained that Radojcic, through several corporations including Jewel Windows, purchased apartment buildings in Chicago and converted the units into condominiums. He then found straw buyers who would first purchase the units at the prices Radojcic set, and then sell the units to other corporations Radojcic operated. The straw buyers sent false information to mortgage brokers to obtain loans for the straw purchases.
¶ 6 Patterson described the process to the grand jury with the specific example of Daniella Kuljanin, who purchased all three condominium units in a building Radojcic converted to condominiums. Kuljanin obtained separate loans from three different lenders for the three transactions, with all three loan applications made at the same time, with closings scheduled a day or two apart, so that the three lenders would not find out about the multiple purchases. To persuade the lenders that Kuljanin could repay the loans, Radojcic put money into Kuljanin's account for a short time while the lenders went through the process for approval of the mortgage loans. For some other straw purchasers, Radojcic's corporations provided false verifications of employment to the mortgage lenders. After the banks approved the loans for Kuljanin, Kuljanin returned to Radojcic the money he had given her to inflate her bank account. Kuljanin received the three loans and gave the cash to Patterson, who kept it in a safe in Jewel Windows' offices. Radojcic used this elaborate process to obtain the loans because he needed to keep his name off of all documents related to the transactions. Patterson said Radojcic owed the United States Internal Revenue Service unpaid taxes of about $2 million.
¶ 7 Patterson testified that Helfand prepared documents needed to convert the apartments to condominiums, and then he prepared the deeds conveying the properties to the straw purchasers and from the straw purchasers to corporations Radojcic controlled.
¶ 8 Biljana Aranyos, who acted as a straw purchaser for eight condominiums, testified that her loan applications included false statements about her income and assets. She did not write the false statements. Someone working for Radojcic prepared the applications Aranyos signed. In May 2006, Patterson gave Aranyos $65,000 to deposit into Aranyos's account for a few days, and then Aranyos gave the money to a corporation Radojcic controlled. Although Aranyos went to seven of the eight closings, she knew nothing about the purchases. She did not find out the amounts of the mortgages until the closings.
¶ 9 The grand jury indicted Radojcic, Helfand, Patterson, and some others on a long list of charges, including theft, forgery, and financial institution fraud. The prosecutors included Helfand on the list of witnesses they intended to call to testify against Radojcic. Both Radojcic and Helfand objected on the basis of attorney-client privilege. In response to the objection, the prosecutor presented transcripts of the grand jury testimony and argued that the testimony of Patterson and Aranyos showed that the attorney-client privilege did not apply. The trial court found that the State had not met its burden of presenting a prima facie case for finding that Radojcic committed a crime and his communications with Helfand furthered the criminal enterprise. On that basis, the court sustained the objections of Helfand and Radojcic and struck Helfand's name from the list of witnesses. The State filed a certificate ...