United States v. Rezko
776 F. Supp. 2d 651
N.D. Ill.2011Background
- Rezko was convicted on sixteen counts after a lengthy trial; counts included honest services fraud, bribery, and money laundering.
- Rezko moved for a new trial based on Skilling v. United States and Black v. United States, arguing an erroneous honest services instruction and nonharmless error.
- The court found the challenged instruction did not require bribe/kickback elements, creating an error under Skilling and Black, but proceeded to harmless-error analysis.
- The government’s theory at trial centered on bribery/kickbacks using Levine’s TRS and Planning Board positions to obtain money; no undisclosed-conflict theory pursued.
- A number of specific transactions (Glencoe Capital, JER, Sterling Financial, Mercy Hospital) were analyzed to determine whether there was a definitive underlying bribery/kickback scheme.
- The court applied a Rule 33 excusable neglect analysis to determine timeliness, concluding delays stemmed from excusable neglect due to post-Skilling/Black developments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the Rule 33 motion | Rezko's delay was strategic and not excusable neglect. | Court extended time via scheduling and excusable neglect under Pioneer factors. | Motion timely due to excusable neglect. |
| Whether the honest services instruction was erroneous after Skilling and Black | Instruction could misstate law and was improper for not requiring bribe/kickback. | Instruction largely captured illegitimate gain, avoiding vacating verdict. | Instruction erroneous under Skilling and Black. |
| Harmlessness of the instructional error | Erroneous instruction could have affected verdict on honest services counts. | Harmless because bribery/kickback underpinned the schemes and evidence supported healthy verdicts. | Under Hedgpeth/Brecht standards, error was not harmless for at least some counts; detailed analysis follows a count-by-count approach. |
| Whether Rezko could be convicted on honest services counts without bribes/kickbacks | Evidence showed bribe/kickback schemes underpinning multiple honest services convictions. | Some counts could rest on non-bribery conduct; Skilling/Black narrowed §1346 scope. | No reasonable jury could convict on those counts without bribery/kickback underpinning; convictions sustained or analyzed per transaction. |
| New trial on bribery counts (Counts 17 and 20) following honest services ruling | Bribery evidence independent and robust; spillover claim fails. | Erroneous honest services instruction tainted jury’s consideration of bribery. | No new trial on bribery counts; evidence and reasoning support convictions. |
Key Cases Cited
- Skilling v. United States, 130 S. Ct. 2896 (2010) (limits §1346 to bribery/kickback core; remands for harmless-error analysis)
- Black v. United States, 130 S. Ct. 2963 (2010) (honest services instruction must reflect bribery/kickback scope; remand for harmless error analysis)
- United States v. Cantrell, 617 F.3d 919 (7th Cir.2010) (Skilling scope applied to Cantrell; honest services and kickbacks)
- United States v. Boone, 628 F.3d 927 (7th Cir.2010) (Skilling interpretation of §1346 narrowing to bribery/kickbacks)
- Hedgpeth v. Pulido, 555 U.S. 57 (2008) (harmless error standard for instructional errors)
- Neder v. United States, 527 U.S. 1 (1999) (standard for harmless-error review and cumulative evidence considerations)
- United States v. L.E. Myers Co., 562 F.3d 845 (7th Cir.2009) (reasonable doubt standard for harmless-error review)
- Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380 (1993) (excusable neglect factors; equitable balancing test)
- United States v. McGee, 408 F.3d 966 (7th Cir.2005) (Rule 33 new-trial standard and harms to substantial rights)
- United States v. Ramirez, 574 F.3d 869 (7th Cir.2009) (case-specific harmless-error considerations)