United States v. Boender
2011 U.S. App. LEXIS 17230
| 7th Cir. | 2011Background
- Boender spent about $38,000 on home repairs for Alderman Carothers to influence zoning for Galewood Yards; he also orchestrated straw-man campaign donations to Carothers' aunt and paid Walczak for work linked to the alderman’s influence.
- Boender sought to rezoned Galewood Yards from manufacturing to residential/commercial; City planning opposed this and proposed a PMD overlay.
- Boender arranged to have Carothers publicly support the zoning change, including interviews and official letters; Carothers ultimately supported and the zoning change passed.
- A fabricated $38,000 invoice was created to support the story of legitimate payments, later produced to investigators under subpoena.
- The government charged Boender with bribery under §666(a)(2), campaign-contribution violations under §441f, and obstruction of justice under §1503; he was convicted on all counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §666(a)(2) requires a specific quid pro quo | Boender argues a quid pro quo is required | Boender insists a specific money-for-act quid pro quo is essential | No specific quid pro quo required; government need not prove money-for-act quid pro quo. |
| Admissibility of attorney-client communications under crime-fraud exception | Government contends privilege can be pierced if crime-fraud exists | Boender argues in camera review and government presence violate privilege protections | District court's use of in camera review with adversarial participation was permissible and not an abuse of discretion. |
| Interpretation of §441f and impropriety of straw-man contributions | §441f prohibits contributions made in the name of another | §441f should only cover false-name contributions, not conduit schemes | §441f unambiguously covers straw-man as well as false-name contributions. |
| Procedure of in camera hearing and government attendance | Government needed to establish foundation for crime-fraud exception | District court should limit government involvement | Discretion to structure in camera hearings lies with district court; adversarial hearings permissible and not abused here. |
Key Cases Cited
- United States v. Agostino, 132 F.3d 1183 (7th Cir.1997) (Quid pro quo not required for §666(a)(2))
- United States v. Gee, 432 F.3d 713 (7th Cir.2005) (Quid pro quo of money sufficient but not necessary for §666(a)(1)(B))
- Sun-Diamond Growers of Cal. v. United States, 526 U.S. 398 (S. Ct.1999) (Sun-Diamond distinguishes bribery vs illegal gratuity; text not require specific quid pro quo for §201(b) and informs §666(a)(2) reading)
- United States v. Zolin, 491 U.S. 554 (S. Ct.1989) (Crime-fraud exception allows in camera review to determine privilege applicability)
- United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir.2007) (Crime-fraud exception requires prima facie foundation and good-faith basis for in camera review)
- United States v. Lawless, 709 F.2d 485 (7th Cir.1983) (Authority on attorney-client communications and disclosure in certain contexts)
- United States v. O’Donnell, 608 F.3d 546 (9th Cir.2010) (Text supports wide reach of §441f to straw-man contributions)
- Gomez-Perez v. Potter, 553 U.S. 474 (S. Ct.2008) (Disparate provisions and Russello presumption considerations)