United States District Court, N.D. Illinois, Eastern Division
For Thomas Hawkins, Defendant: John M. Beal, LEAD ATTORNEY, Chicago, IL.
For John Racasi, Defendant: Heather Lynn Winslow, LEAD ATTORNEY, Attorney at Law, Chicago, IL.
For USA, Plaintiff: Margaret Jean Schneider, Michael Thomas Donovan, LEAD ATTORNEYS, United States Attorney's Office (NDIL), Chicago, IL.
MEMORANDUM OPINION AND ORDER
John J. Tharp, Jr., United States District Judge.
After a jury trial the defendants were convicted on all four counts of the superseding indictment charging: (1) conspiracy to commit bribery under 18 U.S.C. § 371; (2) bribery under 18 U.S.C. § 666(a)(1)(B); (3) theft of honest services through bribery under 18 U.S.C. § § 1342 & 1346; and (4) conspiracy to commit theft of honest services through bribery under 18 U.S.C. § 1349. The jury found that Hawkins and Racasi, employees of the Cook County Board of Review, accepted or agreed to accept cash payments, including a $1500 payment, with the expectation that they would cause the assessed value of certain Cook County properties to be reduced, thereby lowering the property taxes. The two sets of properties about which the jury heard evidence--a set of three residences and a set of 11 condominiums--were brought to the defendants' attention by Ali Haleem, an informant working with the FBI. Numerous conversations about the assessments of these properties, and efforts to identify other properties that could be reassessed for further payments, were captured on audio and video recordings that (along with Haleem's testimony) made up the bulk of the evidence against the defendants.
The defendants now move for judgment of acquittal, or alternatively, for a new trial, on several grounds. See Fed.R.Civ.P. 29(c), 33. Judgment of acquittal should not be granted if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Philpot, 733 F.3d 734, 743 (7th Cir. 2013). A new trial should be granted only if the verdict is so contrary to the weight of the evidence that the interests of justice require a new trial. United States v. Molton, 743 F.3d 479, 483 n.1 (7th Cir. 2014); see Fed R. Cr. P. 33(a) (Court may grant a new trial " if the interest of justice so requires" ).
Each of the defendants' arguments turns on what is required to prove bribery. As relevant here, so-called " federal program bribery" prohibits agents of federally funded entities from " corruptly" accepting or agreeing to accept " anything of value ... intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of [the federally funded] organization, government, or agency." 18 U.S.C. § 666(a)(1)(B); see United States v. Owens, 697 F.3d 657, 658-59 (7th Cir. 2012).
The defendants' principal contention is that the defendants were not guilty of bribery because they were " all talk and no
action." They maintain that they never actually intended to do anything to lower anyone's property taxes, so they cannot be guilty of bribery. Each of their arguments presents a variation on this theme and each turns on what it means to act " corruptly" within the meaning of the statute.
As the Seventh Circuit explained in United States v. Peleti, 576 F.3d 377, 383 (7th Cir. 2009), a public official " can act corruptly without intending to be influenced" by payment of the bribe. What is required to make the act corrupt is not an intent to take a specific action, but the holding out of the performance of the duties of one's office for sale. Thus, an official acts corruptly if he solicits or receives the bribe payment " on the representation that the money is for the purpose of influencing his performance of some official act." Id. (quoting United States v. Arroyo, 581 F.2d 649, 652 (7th Cir. 1978)). In Peleti, then, the Court of Appeals affirmed the district court's denial of the defendant's motion to withdraw his guilty plea where he had admitted that he accepted a payment knowing that it had been given to him for the purpose of influencing his official actions--even though he had explicitly told the bribe payer that " there was no way" the contract at issue could be awarded to him. Id. at 383.
Peleti involved the federal bribery statute, 18 U.S.C. § 201, rather than the federal program bribery statute, 18 U.S.C. § 666, but in this regard the Court sees no basis to distinguish its rationale. That the official holding out his office is an official of an entity funded with federal funds rather than an official employed by the federal government does not mitigate the corrupt nature of the transaction. As the Court adverted before trial ( see 9/23/13 Pretrial Tr. at 4-6), there is a distinction between the definitions of the bribery offense in the two statutes. In § 201, the official must accept payment " in return for being influenced in the performance of any official act," while § 666(a)(1)(B) requires that the official accept it " intending to be influenced or rewarded." But that just goes to show that " corruptly" does not mean " intending to be influenced or rewarded" ; if it did, the corrupt acceptance of a payment intending to be influenced or rewarded would be redundant. Section 666(a)(1)(B) " was designed to extend federal bribery prohibitions to bribes offered to state and local officials employed by agencies receiving federal funds," Salinas v. United States, 522 U.S. 52, 58, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), so there is little reason to believe that Congress intended a different meaning for the term in § 666(a)(1)(B). Both statutes require, in essence, that the official know that the payment is offered as a bribe. See United States v. Curescu, 674 F.3d 735, 742 (7th Cir. 2012) (" § 666(a)(1)(B) requires knowing that the money or other thing of value received was indeed a bribe, which is to say an inducement to do a corrupt act." ); Peleti, 576 at 382 (one acts corruptly when one solicits or receives money " on the ...