Argued January 7, 2015.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 528 -- John J. Tharp, Jr., Judge.
For United States of America, Plaintiff - Appellee (14-1892): Helene B. Greenwald, Attorney, Office of The United States Attorney, Chicago, IL.
For Thomas Hawkins, Defendant - Appellant (14-1892): John M. Beal, Attorney, John M. Beal, Attorney at Law, Chicago, IL.
For United States of America, Plaintiff - Appellee (14-1908): Helene B. Greenwald, Attorney, Office of The United States Attorney, Chicago, IL.
For John W. Racasi, Defendant - Appellant (14-1908): Heather L. Winslow, Attorney, Chicago, IL.
Before WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.
Easterbrook, Circuit Judge.
Thomas Hawkins and John Racasi were employed as analysts on the staff of Larry Rogers, a member of the Cook County Board of Review, when they accepted money from Ali Haleem, a corrupt Chicago police officer acting as an undercover agent in order to reduce the penalties for his own crimes. The Board of Review hears complaints by property owners who believe that the assessed valuation (which affects real-estate taxes) is excessive. Haleem paid Hawkins and Racasi to arrange for lower assessments. They took his money, and the assessments were reduced, except for one parcel about which the protest was untimely. A jury found that Hawkins and Racasi had violated 18 U.S.C. § 666 (theft or bribery concerning programs receiving federal funds) and § 1341 (mail fraud), plus corresponding prohibitions of conspiracy. Hawkins and Racasi contend that they committed a different offense--they assert that they took the money with the intent to deceive Haleem and did nothing in exchange for the cash--and that the jury convicted them of the indictment's charges only because it was improperly instructed.
The parties agree that Cook County is covered by § 666 and that the financial effect of the lower assessed valuations exceeds the $5,000 required for a conviction. Section 666(a)(1)(B) provides that any agent of a covered organization who " corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization" commits a felony. The prosecutor contended, and the jury found, that Hawkins and Racasi took Haleem's money " intending to be influenced or rewarded" in connection with their jobs as analysts.
They do not complain about the jury instruction on this element, which told the jury that it must find that they acted with one of the two forbidden intents: an intent to be influenced, or an intent to be rewarded. Their theory of defense--that they took the money planning to deceive Haleem--amounted to a confession of accepting payment with intent to be " rewarded" for their positions. This part of § 666 forbids taking gratuities as well as taking bribes. See United States v. Anderson, 517 F.3d 953, 961 (7th Cir. 2008); United States v. Ganim, 510 F.3d 134, 150 (2d Cir. 2007); United States v. Zimmerman, 509 F.3d 920, 927 (8th Cir. 2007); United States v. Agostino, 132 F.3d 1183, 1195 (7th Cir. 1997). Contra, United States v. Fernandez, 722 F.3d 1, 22-26 (1st Cir. 2013). (Defendants have not asked us to overrule Anderson and Agostino in favor of the position taken in Fernandez.) The record shows that the payments were, if not bribes, then gratuities (from defendants' perspectives) even if Haleem would have preferred to get something for his money. The jury may well have found that defendants intended to be influenced; but if they did not, then they intended to be rewarded for the positions they held, if not for services delivered. They are guilty either way.
The contrary argument rests on the word " corruptly" . Hawkins and Racasi maintain that, to show that they acted corruptly, the prosecutor must prove that they took the money intending to ...