*1 on Hardiman’s limitations light of the pre- County discussed authority to bind resig- fact that Common’s viously and the an actual de- effectively preempted
nation concerning officials by public
termination Common’s means to effectuate proper
termination. statutes, and Illinois sum, Illinois
In construing these stat- decisions court
state an with
utes, Lillie Common provide do at the employment
expectation of continued This conclu-
Department of Corrections. by the actions words is not altered
sion incapable of cre- Hardiman, explicit under- “mutually
ating right “property” necessary for a
standing” to be established. employment
in continued has failed Common this context Lillie expec- an showing that the burden
meet some- employment was in continued
tation durably “securely and
thing which was Yatvin, 840 law.” state ...
[hers] right is “property” this 417. Since claim, of Common’s element essential an entered summa- properly district court of the defendants.
ry judgment favor court is the district decision
AFFIRMED. America,
UNITED STATES
Plaintiff-Appellee, MICKE, Defendant-Appellant.
Norman
No. 86-2912. Appeals,
United States Court
Seventh Circuit.
Argued April 1987. Sept.
Decided *2 Quirts’
duction of fuel alcohol. The return, defendant, prepared by de- claimed production equip- preciation on fuel alcohol that, asserted, ment the return had been placed service December *3 $42,000. had cost The return also claimed regular credit and business en- investment ergy investment credit based on the same acquisition. Quirt
At trial the evidence showed that purchased equipment from certain Farms, (Twindale) price Twindale Inc. at a $42,000 and had leased it to Interstate (IFF) Corporation Food and Fuel for seven (The venture, per years at month. $700 anticipated ill-fated and the received.) Although returns were not lease, Quirt’s bill of sale and as well as $20,000 initial checks to for and Twindale Office, Gratz, Timothy Gratz Law Ma- J. $2,500 Consulting Services for were dated dison, Wis., defendant-appellant. for 28, 1982, December it is conceded that Atty., Hodges, L. Asst. U.S. Madi- Debra these documents were executed Johnson, son, Wis., apparently January. Grant C. Asst. U.S. in late plaintiff-appellee. Atty., for Quirt contended that did WOOD, RIPPLE, obligate purchase equip- Before Jr. and himself to Judges, FAIRCHILD, beginning ment until Circuit and after the of 1983. Quirt testified that in 1982 he and Judge. Senior Circuit defend- involving ant discussed a tax shelter WOOD, Jr., HARLINGTON Circuit purchase leasing equipment. They and Judge.* $30,000 price range talked to Defendant Norman Micke was convicted $40,000, agreement but did not reach on on one count of a three-count indictment of any specific equipment price in 1982. willfully aiding assisting prepa and in the Defendant, hand, on the other testified that ration of the false and fraudulent 1982 Quirt buy had made his decision to and had tax income return of Charles and Judith in late communicated it to defendant 7206(2).1 Quirt. 26 U.S.C. § only Defendant was not an adviser and tax corporation Defendant’s does business as Quirt; preparer return for he was vice- Services, Consulting pre- Ltd. Defendant Twindale, president of was an adviser to pares tax IFF, returns and is a tax adviser and both Twindale and and was active prepared business consultant. He had getting equipment to lease to investors Quirt’s tax for Charles returns several apparently IFF. He acted on behalf of 1982, Quirt years. sought In December leasing Twindale and IFF in the sale and investment advice and defendant recom- position transactions. Defendant’s is that purchas- mended a tax shelter that Quirt’s involved telling of his defendant decision ing equipment leasing pro- and it for the by simply invest was not a communication * portions opinion suspended have mainder of the sentence was and Some of this consent, original- adopted, placed probation with his from draft on for three defendant Judge ly prepared Senior Fairchild for a years confinement. He was after release from majority panel. majority longer That no pay prosecution ordered to the costs of also Judge Fairchild now dissents. exists Following special oral $50. assessment of argument appeal, this court ordered his of his years’ 1. Defendant was sentenced three im- pending appeal. release on bail prisonment, but on the condition that he be days, the execution of re- confined intent,
Quirt subjective audit the IRS. He swore to it before an to his adviser of his Agent. contractually Quirt Special The affidavit described but also bound IRS Quirt’s participation in the transactions rel- Defendant therefore purchase and lease. general, papers executed evant to Count III. the text of argued at trial that January properly backdated De- and his trial are the affidavit an they similar, memorialized portion cember because but a of the affidavit can in December. agreement reached interpreted as inconsistent with his testi- instruct- parties agree mony and the court trial. taxpayers enti- that the “were ed referring to a After conversation with claimed tled to the credits and deductions concerning in December 1982 an if only tax returns on their 1982 IFF, Quirt involving investment said: *4 actually paid for the amounts claimed were presented me with various MICKE property by taxpayer in the appropriate reflecting investment sheets different year or amounts for which amounts, it and from these sheets was in personal liability taxpayer incurred a participate that I in the decided 1982.” $42,000.... amount of MICKE stated Quirt It undisputed is mailed a hand- purchasing equip- I new that would be defendant, written letter to dated Decem- oper- ment which was to be installed and postmarked ber 30 and December 1982. ating during February of 1983 for what The letter said: II I was called Phase Production. discussed, I to As we have decided during agreed to make this investment purchase equipment piece agreed we during at no time 1982 did I on, but Corpo- Fuel from Interstate Food & documents, notes, sign any any write ration. Enclosed is the check for the amount checks, any purposes for or secure loans you if noted. Please contact me there investing equipment leasing in any discrepancies. are program involving INTERSTATE FOOD Quirt Both and defendant testified that AND FUEL. no Quirt check was explained enclosed. brought in cross- The affidavit was out sham, the letter in effect was a writ- Quirt Quirt. explanation examination of ten at defendant’s direction support to agreed to make an testified that he “had false claim that a purchase commitment to investment in '82. We had not established had been made in 1982. Defendant testi- $42,000 price.” The reference to did not fied to a explanation. different He said ’82, agreement in “reflect an but rather Quirt telephoned had first concerning had done in ’83.” what decision, his and defendant had told him affidavit, in- The court admitted the “since I didn’t have a payment down from jury: structed
him, that I something needed writing in indicating his intention to pur- make his Evidence that on some former occasion a year.” chase that witness made a statement inconsistent may in with his this case
I. ALLEGED ERROR IN LIMITING by you only determining in considered THE JURY’S USE OF A WITNESS’S witness, credibility according- and PRIOR AFFIDAVIT 9, 1984, Quirt’s On approximately ly October two Exhibit Charles affidavit years trial, Quirt by you only before the made an affi- should be considered investigation purpose impeaching credibility. davit the course of an or his agreed purchases 2. Defendant was on Count III of the had not on their in 1982. convicted indictment, had, They payments Quirt’s which involved return. The made substantial II, December, jury acquitted though Counts I which made less than the full amounts on very charges concerning pre- claimed in the It seems reasonable to similar returns returns. suppose persuaded pared taxpayers payments defendant for named Koeh- that these agreements pur- ler. The documents relevant to Counts I and II that the Koehlers had made 1982, producing acquittal were also executed in but dated 1982. chase in on Counts I contended that the Koehlers and II. testified to a con- case-in-chief. Grobe Therefore, you not to treat its I instruct having any potential defendant in late November versation with that affidavit independent testimonial or December, substantive taxpayer, 1982. Another value. suit, originally gone had in this involved preparation of his 1981 re- defendant for the affidavit was argues that Defendant turn, later went to Grobe to his evidence but then do admissible as substantive properly on three theories: tax work. An extension been obtained working on the and Grobe was return First, claims that the affi the time of conversation with defend- Federal Rule hearsay under davit was not Defendant, Grobe, according ap- ant. 801(d)(1)(A) it was not because of Evidence meeting at a if proached Grobe asked testimony, and [Quirt’s] with “inconsistent taxpayer would still be interested penal subject to the given under oath trial, testi- hearing, purchasing or other a tax shelter. The Grobe perjury at a ty of Assuming deposition.” or in a proceeding, on: mony went special agent who administered that the said, year A I “We’re in the U.S.C. oath was authorized to do that at this We’re not able time.” oath, investiga administer an 7622 to § that, response Q say did he What the affidavit generated tive interviews *5 anything? if “pro not shown were nevertheless to have the doc- A That be able he’d See ceeding” purpose of the rule. for the in- particular for that uments backdated Livingston, 661 F.2d (D.C.Cir.1981), cited dividual. and 242-43 cases
therein. your response, any- if Q What was thing?
Second, the claims that defendant for recorded recollection hearsay exception getting I A I said was interested Quirt applied to the affidavit. Fed.R.Evid. any backdating or my client involved 803(5). require that exception would This on preparation of fraudulent tax returns Quirt had an insufficient at the of trial time that basis. testify fully him to to enable recollection place colloquy the bench had taken A at no show accurately. There was such and testimony. The just substance before this ing. testimony described expected was of' Third, Quirt claims that defendant judge indi- objected. The and defendant on the “adopted” the affidavit while wit (willfulness) in issue was cated that intent part his that it “became of ness stand so of the conversation that the relevance testimony oath-supported, court-given sub “outweighs any of the issue unfair to that hear ject cross-examination and [is] the defendant claims prejudice which Milwaukee, say.” City Bell v. The was admitted. The evidence occur.” (7th argument This give asked to an instruction judge was not trial court. More not offered to the was testimony did of the limiting the use over, Quirt that the although did answer so. not do “true,” that answer must be affidavit was light explanation of his
read in the Defendant contends admission price in 1982 did not include a “agreement” improper testimony was the Grobe $42,000 agreed in 1983. and that the was on 404(b). The of Evidence Federal Rule “adoption” de not find the which We do argues proof government Grobe upon. fendant relies to the was relevant issue conversation and therefore admissible defendant’s intent ERROR IN ADMITTING II. ALLEGED rules alternatively under either one two OF EVIDENCE CONVERSATION 404(b) evidence, or Rule Rule OF BACKDATING CONCERNING 801(d)(2)(A). TAX DOCUMENTS testimony was The substance Grobe’s produced Randall The renewing of a an offer accountant, defendant was Grobe, the last witness in that an government argues that The taxpayer and was to another tax shelter offered as an admis falsely offering have the documents Grobe going himself support in order to a fraudulent of the defendant sion backdated In advantages prior year. in a admissible un of tax mind and thus was claim state of case, prepared 801(d)(2)(A)3 present as an admission der Rule Quirt claiming acquisition of tax return for government relies on party. The United govern- 1982. The equipment December Kehm, F.2d 354 Cir. States acquisitions oc- ment contended 1986). Kehm, per In we held that it was re- January 1983 and thus the curred prejudice to admit the defendant’s missible Because defendant turns were fraudulent. acts, including illegal earlier boasts actively participated equipment in the had charged. he was Id. the one with which returns, prepared the transaction as well as case, however, present In defend fraud, knowingly participated in the he had taxpay backdating not mention ant did any. if there was Quirt, taxpayer. for another er Kehm, this court did not sort out agreed re- parties The that documents boasts, but found it all admissible. (and leases) had flecting acquisitions argues that the Micke-Grobe January, executed in but backdated to been enough backdating conversation was close by defendant. The sole issue at December defend highly in time to be relevant to the agreed trial was whether deal December, of mind at the time of the subsequently in ant’s state on in Janu- former, charged. Fed.R. backdating offense with which he is ary. If the legitimate not fraudu- Evid. 401. and the returns were lent; latter, backdating if the and the government alternatively argues returns fraudulent. 404(b), permits evidence of that Rule *6 argues crimes,
Defendant
that the evidence
wrongs
other
or acts to be admitted
recently
intent,
that he had
offered to have a tax
apply
this evi-
prove
does
shelter document
for a different
backdated
dentiary
only
issue. Here defendant
made
taxpayer
support
so as to
a fraudulent tax
the actual
an offer and did not discuss
taxpayer
wholly
return for that
is
irrele
by
commission
himself of some other
proving
vant in
the true date of the trans
crime,
However,
wrong
if we view
or act.
position
action in this case.
It is his
that
situation,
404(b)
it as a Rule
as did the
presented
great danger
the
a
evidence
of
court,
argues
district
the
then
influencing
the
to decide that the back
necessary
apply
balancing
the
that it is
dating
improper. Testimony
here was
out in
v.
test set
United States
Shackle
willingness
defendant’s
to backdate doc
(7th Cir.1984).
ford,
479 properly found that judge The trial evidence, including evidence All inquiry. only admitted if evidence be this could to the hear exception as an qualifies 404 Rules 403 and were requirements of relevant, as defined rule, say must the evi court found that met. The trial of Evi Rules the Federal Article IV 404(b) Rule argu dence was admissible government’s Contrary to dence. requirements because does that this evidence ment, we believe Shackleford requirements are: met. Those 404(b) other similar as some fall under Rule The fact that crime, wrong act. (1) toward estab- is directed evidence offer a mere shows evidence in issue other than the lishing a matter instead a tax document to backdate propensity to commit defendant’s is a document backdating such act actual (2) charged, the evidence shows crime a similar to commit immaterial. enough and act is similar that the other offer purposes “act” is a similar crime itself enough in time to be relevant to close See, 404(b). e.g., United States Rule ..., (3) is the evidence matter issue (7th 233, 236-37 Cir. Radseck, F.2d 718 (4) proba- convincing, clear defend 1983)(court evidence admitted the evidence is not substan- tive value of a kickback proposed ant had earlier danger of unfair tially outweighed by the he one with which to the scheme similar prejudice. denied, 465 U.S. charged), cert. was Shackleford, F.2d at 779. Because (1984); 79 L.Ed.2d 104 S.Ct. test requirement fourth Shackleford Lea, 431-32 balancing the Rule 403 equivalent is denied, Cir.) (same), 449 U.S. cert. test, necessarily found that the trial court (1980). L.Ed.2d 25 101 S.Ct. satisfied Rule 403 and Rule 404 were both it ruled that the evidence admis- when the Micke-Grobe We believe sible. defend relevant to show conversation properly found that court charged The district crimes to commit the ant’s intent 404(b) Rules 403 and were satisfied. re both government is in the indictment. no there is coming to that conclusion of a requisite intent prove the quired to application of pursue the each a need to beyond this case crime—in willfulness— apparent it is criteria as has This court held reasonable doubt. Shackleford *7 satisfactorily met. The all each and in 26 7203 element U.S.C. the willfulness § could be that doubt- only one of the criteria specific intent crime. United creates a fourth, value of the evidence 1026, the Birkenstock, 1028 ed is 823 F.2d v. States prejudice. The tri- against unfair weighed holding cited (7th In so we Unit possibility, overlook 10, judge al did not 97 Pomponio, 429 U.S. ed States v. it, it, and exercised curiam), weighed (1976) considered 22, (per 12 but L.Ed.2d 50 S.Ct. admitting the relevant evi- in in his discretion meaning of dealing “the willfulness with Brown, 688 F.2d v. 12, States 97 dence. United statutes.” Id. at 7206 and related § Cir.1982) (citing 1112, (7th 1117 United argues that 23-24. The defendant S.Ct. at 1198, (7th Watson, 1203 F.2d v. 623 We States merely a “formal issue.” intent was “ Cir.1980)). do not see admission however, in We held, specific have ‘[i]n as an abuse discretion. the evidence crimes, be the intent element must tent government’s case strength of the The directly proven by the separately and minimum, back to need not be cut merely a formal It is not government.’ rule, the rele- balancing just because Hudson, F.2d v. 843 issue.” States United adversely omitted) question reflects Cir.1988)(citations vant evidence (7th 1067 con- jury The must be Gruttadauro, on the defendant. v. (quoting United States guilt beyond defendant’s (7th Cir.1987)). If the vinced about the 1328 F.2d people may willfulness, Reasonable reasonable doubt. prove de failed to government way about the in some circumstances acquit differ entitled to have been fendant would tilts, wé in this instance balancing but Thus, just a in this case is not intent tal. judge. trial agree with the government. formality for chosen and he has tion counsel whom LIMITA- IMPROPER ALLEGED III. absolute, but right is not This RIGHT retained. DEFENDANT’S TION ON against the must be balanced qualified, COUNSEL TO proper admin the fair and requirements of Bohren was Attorney Michael 0. v. justice. United States istration record, attorney of retained defendant’s (9th 1461, 1465 Cir. 797 F.2d Washington, stages pretrial him at all representing F.2d 1986); O’Malley, 786 States v. United jury before throughout trial. Just Cir.1986); 789-90 the court selection, informed Bohren Cir.1986); (3d Rankin, acting Timothy would be attorney Gratz J. Mintzes, 278-81 761 F.2d Wilson govern in the case. The co-counsel as his disqualify a (6th Cir.1985). seeking “In as a witness. subpoenaed Gratz ment had counsel, govern The chosen to the defense. defendant's known This was establishing heavy it would stipulated burden government ment bears ease-in-chief, in its integrity a witness call Gratz as that concerns him in right to call disqualifica but it reserved process justify the judicial objected to the rebuttal. F.2d at 1465. Washington, 797 tion.” and informed of Gratz participation case, however, interest. the court did potential conflict of In this of a court whether additional counsel disqualify a discussion about Gratz as There was witnesses; questioning defendant, par merely limited his Gratz would that Gratz the court particular Bohren informed circum ticipation in view of the Upon questioning witnesses. not be governing the final In an order stances. join Gratz to the court allowed that basis conference, required judge the trial pretrial and to assist at the counsel table Bohren conference party appear at that that each agreed limi subject only to the the defense counsel who would represented by the trial tation. trial. At that confer actually conduct the he had attorney appeared, Bohren ence trial, Bohren day The second only attorney of previously, as defendant’s that defendant would informed the court appearance at had made no record. Gratz testify in his own behalf take the stand to otherwise in defend arraignment prefer that Gratz conduct the and would explicitly Bohren advised government again ob- ant’s behalf. examination. court, matter arose on the first indicating ethical concerns. Gratz when the jected, representing trial, ques previously day two that Gratz would not be had admitted in an unrelated civil tioning witnesses It was on that basis witnesses. These witnesses had concluded permitted matter. to assist that the court Gratz testimony. testimony related to their That That was at the counsel table. the defense of the indictment other counts satisfactory to defendant.4 arrangement an charged type the same defendant was with *8 suddenly Bohren advised Then midtrial charged he in of fraud with which was preferred that court that defendant now involving III the tax return of the Count conduct defendant’s be allowed to Gratz Quirts. permit The court declined to Gratz addressed the direct examination. Gratz examination, defendant’s but to conduct although he had in court and stated that permit at the continued to Gratz to assist represented government the two past counsel table. witnesses, ap not that he he did believe their interests because peared adverse to Defendant contends that this limitation taxpayers if Mr. Micke wins.” “the win infringed right amendment to his sixth impressed with that judge The trial was not undisputed that a defendant counsel. It is argument, nor are we. right representa- trial has a to a criminal merely asking the court to allow asked the Bohren was 4. The record indicates that Bohren to allow Gratz to assist as his co-counsel. assist him. court Gratz to sit at the counsel table and inquired whether Gratz would objec- When the court granted request over the The court this witnesses, however, examining any be Bohren government. tion of the i "No, Thus, appears it that stated: he will not.” Nevertheless, the Court certain witnesses. Wheat had drawn appeared that Gratz It the refused substitution with leases for defendant affirmed shelter tax and Gratz could closing in the comments: involved trial these were concerning their execution. testified have recognize pre- The District Court must some involved to professionally was He petitioner’s counsel sumption in favor of only of de- representation not degree with choice, presumption may of (and government sub- was under fendant only by overcome not a demonstration of it), of two but also because poena showing conflict but actual witnesses. potential for conflict. The evalu- serious a situa- judge was faced with The trial of the facts and circumstances of ation impro- some involving possibility tion standard must be each case this developing. for- existing or Gratz’s priety primarily judgment the informed left in effect who had testified were mer clients of the trial court. against Gratz’s in the complainants case case, judge In the trial Id. at 1700. this possibil- There also client. was present judgment. properly exercised his informed that, his examina- completed ity after Gratz judgment, “primarily” it to his We leave himself, defendant, as a Gratz tion error. which we find no with witness, re- would rebuttal judgment is AFFIRMED. stand. defendant on place witness its sound in that situation exercised court permit Gratz’s decided not to discretion FAIRCHILD, Judge, Senior Circuit trial in- sudden, surprising, and late direct dissenting. To have done otherwise
volvement.
it
respect, I conclude that was
With all
understanding
contrary
have been
Mr. Grobe’s
of discretion to
an abuse
admit
trial
parties when the
with the
reached
concerning defendant’s offer
object.
started,
did
to which defendant
falsely
for a
backdated
documents
have
advised,
judge
The trial
taxpayer.
different
Bohren at
continue
assist
could
Gratz
ruled,
the court
counsel table. When
“fine”; Bohren
only response
Bohren’s
I
only ob-
object
then. Defendant’s
did
whether
only
In this case
issue
is too
appeal,
on
jection comes
agreements
taxpayers made their
late.
were exe-
the documents
January, when
by defendant
question
is no
raised
There
December,
documents
cuted,
when the
or in
counsel
his other
the effectiveness of
of-
Testimony
defendant
dated.
Bohren,
choice,
who conducted
attorney
for a differ-
documents
fered to backdate
trial,
assisted
throughout
defense
wholly irrelevant
es-
taxpayer was
ent
rather
these
The decision
Gratz.
agree-
tablishing the correct date
pri
be left
circumstances should
unusual
presented a substan-
Yet it
at issue.
ments
judgment of the
marily to the informed
influencing
—
danger
improperly
tial
States,
judge. Wheat United
trial
defendant
that because
jury to decide
U.S. -,
The
of unfair
minimal.
probative
the
value
great, and
treat the court’s
temptation
There is a
have been excluded
testimony should
The
Mr.
role as counsel
limitation on
Gratz’
minimis,
unlikely that ex-
403,
for it seems
under Rule
de
Rules of Evi
Federal
rather than Mr.
by Mr. Gratz
amination
Nothwithstanding
to the
relevance
denCE.
produced
have
a different
Bohren would
willfulness, evidence is to be
element
context,
result.
In this
balancing test
unless it meets
excluded
prejudice.
not demonstrate
United
need
v.
Rule 403.
States
Shackle
United
956,
(3d
Rankin,
960-61
779 F.2d
v.
States
Cir.1984).
776,
779
738 F.2d
ford,
Mintzes,
F.2d
761
v.
Wilson
recently acknowl-
Supreme
The
Court
275,
(6th Cir.1985).
v.
Flanagan
286
Cf.
unduly prejudicial evi-
edged
268,
“concern
259,
States,
104 S.Ct.
465 U.S.
United
(1984), involving
Rule
might
1051, 1056,
be introduced under
483 any spell out did not America, confidential Gratz obtained UNITED STATES probability that Plaintiff-Appellee, representation in his earlier information useful would have been Koehlers which v. examining them on behalf cross if he were SANCHEZ, Defendant-Appellant. Carlos ease, any nor other in this of defendant professional duty his way in which No. 88-1706. rep- the laundromat arising out of Koehlers Appeals, United Court of States his could conflict with would or resentation Seventh Circuit. See, for for defendant. duty as counsel successfully showing example, type of 9, Sept. Argued 1988. — States, U.S. v. United made Wheat 30, Sept. Decided -, 100 L.Ed.2d 108 S.Ct. O’Malley, 786 (1988) and United States only
Instead, prosecutor offered that Mr. Gratz
vague suggestions knowledge of the Koehler’s
gained some assist- might have
financial condition (doubtless referring to the
ed defendant transaction); and that
underlying see Mr. unhappy to
Koehlers would for defendant because act counsel
Gratz these upon presence
they had “relied to kind drafting the leases ...
meetings in them.” The Koehlers protect unhappy with outcome
doubtless investment.
their relationship between my view neither there was and Gratz
the Koehlers of actual conflict
“a demonstration [nor] conflict,” potential for
showing a serious defend- in favor of presumption
and the of choice was overcome.
ant’s counsel
Wheat, at 1700. S.Ct. and re-
Argument judge suggest district
marks competent counsel that one
proposition has no enough, and a defendant
choice is that “co-counsel” examine
right to insist contrary, where defend- To
witness. counsel, disquali- more than one
ant retains partic- from full of them
fication of one of Sixth Amendment is a denial
ipation supported by adequately
rights unless recognized in cases consideration
some here. present (3d Cir.1979),
Laura, 607 F.2d Rosenn, JJ., concurring.
Adams and