United States v. Thomas J. Maloney

plaintiffs findings regarding the merit of the explanations provided and the

ease court, adequate conclude that an

district we finding for the court’s of no

basis existed justification, and for the award of

substantial attorney’s Though and minimal fees.

costs precisely might

we not have reached award, recognize

same we that these difficult are entrusted to the discre-

determinations

tion of the district court. We find no abuse

of that discretion.

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, MALONEY,

Thomas J. Defendant-

Appellant.

No. 94-2779. Appeals,

United States Court

Seventh Circuit.

Argued June

Decided Nov. pre-existing background

consistent with the We find no abuse of discre liability Kentucky regarding substantive ham, rules. See v. Gra tion the manner in which the district 159, 171, judge liability allocated in this case. Elden, Barry Appeals, Rand Chief Mark Filip (argued), Attorney, Office of U.S. Chi- IL, cago, for U.S.

Jeffrey Staes, (argued), N. Cole Andrew T. Staes, IL, Chicago, Cole & for Thomas Malo- ney. CUMMINGS, ESCHBACH,

Before and RIPPLE, Judges. Circuit ESCHBACH, Judge. Circuit yet unfortunately This is another long public corruption line of cases which Chicago have left a blot on the escutcheon of justice. Maloney, judge Thomas J. a former County, appeals in the Circuit Court of Cook charges from his conviction on of racketeer- ing conspiracy, racketeering, extortion under right, jus- color of official and obstruction of tice, 1962(d), §§ in violation of 18 U.S.C. 1962(c), 1951, 1503, respectively, in con- taking nection with his bribes cases before Among many grounds appeal, him. Judge long as friend have been stand as a he should Maloney contends trial, Judge At Malo- joined co-counsel. government’s to the trial due new granted a declaration, but found dying a improper ney benefits be- admitted disclose failure to unreliable, acquitting The the defendants. “El Rukn” witnesses. thus upon two stowed motion, Cooley and Maloney’s find- between Tapes of a conversation denied court district Cooley these wit- became an infor- impeachment Marcy made after ing that further changed the outcome. existence of the fix. not have mant confirmed the would nesses affirm. We introduced evidence charged in was not another bribe which I. indictment, during period, but occurred position on Maloney assumed his Thomas membership Judge Maloney’s to demonstrate there until remained in 1977 and the bench conspiracy. Swano in the William According in 1990. his retirement in a represented Rosario double Wilfredo during that time he took findings, jury’s Judge Maloney. The case before murder cases,1 “fix” four includ- agreed to bribes against Rosario was his critical evidence con- cases, jus- and obstructed ing murder three discussing this fession. When Swano investigation of these in relation tice Robinson, Lucius Robinson indicat- case with Generally, were accom- these bribes bribes. Judge fix could a Malo- arrange ed he “bagman,” or through the use of a plished Doubtful, $2,000-$2,500. ney for between lawyer intermediary desiring between personal meeting be asked Swano judge. used bail- fix arranged. meeting outside his At this brief Robinson, iff, bagman until as his Lucius chambers, told Swano that liability dur- reputation became Robinson’s him,” “my guy, deal with where- Robinson Chicago investigation of ing “Greylord” Maloney’s allegedly upon, presence, to Robert Maloney switched judges. then envelope a white with a handed Robinson Maloney McGee, law with practiced who 1981, Judge portion of In Malo- the bribe. from until 1977.2 Ro- ney suppressed confession and found charged in the indictment The first bribe guilty. sario not Attorney Robert May in occurred 1981. Swano, Judge Maloney Robinson and con- Ward Aider- Cooley First was contacted years. In arrangement for a Secretary Pat Mar- tinued this few man Fred Roti and Ward Roby in Chow, represented Ronald five a hit man for cy Lenny Swano represent to deceptive practices cases which he had con- organization, and Leong crime two the On Maloney. Although attempted Judge charged solidated before with others who were small, Roby the total dollar shooting Chin Chica- amount murder for William imprisoned Leong representa- feared that he would be because go’s An Chinatown. On for a tive, Cooley prior of his conviction similar offense Moy, told he wanted a William Thus, sought out Robinson to The case Swano guaranteed guilty not verdict. guarantee pris- no Marcy arrange a fix which would Maloney and assured Judge before Roby that a to Judge bought, on time. testified bribe was Cooley could be but $5,000 During Maloney paid plea out of his “fee.” a “wants a Judge him that lot warned conference, Maloney Roby to Moy agreed pay pro- to sentenced money one.” of on this Sundays $100,000, Marcy gave release on and which bation with work portion a of to after, died, according Mondays. to fix. Chin how- Soon Robin- Maloney part as $2,300 testimony, passed along to ever, mur- son’s he charges were elevated to and the this, lounge Place Marcy get Judge to at McCormick Despite was able a der. suggested meeting place. a prior as Judge Maloney to allow the bond to case, however, indictment, subject this charged him. His is not the in the but 1. A bribe was fifth appeal bribe was did not find that this commit- and we no comment about the make sentencing ted. or the correctness of the verdict applied to him. Maloney's this McGee was co-defendant in case charged against and was on all counts convicted later, days headquarters that a get money, Robinson also testified few to and that Maloney in Knox later riding Judge alone with arrived at the while courthouse with a bulge in elevator, pocket appeared which judges’ Maloney gave him to be a $200- roll of bills. Swano called to bagman a on the McGee confirm for his work as case. $300 gave fix and him a file folder with the charged in the The third bribe indictment money Mayor’s at the Row restaurant. The occurred late 1982. Owen Jones was proceeded case to a bench trial. On June felony charged beating murder after 18th, put 17th and the State on its case pipe during burglary. man to death with a eyewitnesses where three identified Hawkins explained Swano was hired and the details of time, By as the murderer. the FBI had hopes securing the case to Robinson suspicious Judge become later, however, Afix. few weeks when Swa- case, agents and its were Hawkins/Fields case, no to court for went the Jones Robert watching closely. attention, the trial This approached explained him and McGee coupled strength with the of the State’s Robinson had become “too hot” to serve as a prompted Judge Maloney to have second Thus, bagman Judge Maloney anymore. thoughts. McGee called Swano at Maloney asked to take McGee over. McGee 11:23 a.m. on June 19th in the anteroom Judge told that the Swano best the would do Judge Maloney’s outside chambers to inform acquit on the Jones case would be to on him “give that he needed to the books back murder, felony voluntary convict on man- given day.” he had him the other Swa- slaughter impose year a nine sentence. no, fix, hoping salvage told McGee to Agreeing preferable likely this was to a “hold onto the books” at least until the de- murder, twenty year felony sentence for put fense According could on its ease. $4,000- agreed pay Jones’ mother Swano testimony, Hawkins’ Swano came back from $5,000 trial, for the fix. After Jones was Judge’s chambers and told him that guilty voluntary manslaughter found Judge Maloney had returned the bribe mon- years. sentenced nine testified, ey. that he had in persuaded fact charged The final bribe in the McGee to talk to indictment Malo- ney continuing was, about place years the fix and took a few later. least June temporarily, Fields, successful. Earl Swano also testified Hawkins and Nathan members Rukns, that he confirmed the existence of fix charged El were with murder- Judge Maloney with himself on two occa- ing Judge Maloney assigned two men. was By 26th, sions. the end of trial on June represented the case and Swano Hawkins. though, Judge Maloney apparently believed Swano assured Hawkins that he could win a up that Swano had not lived to his end of the in decision his favor in a bench trial if Haw- bargain by putting good on a defense ease. enough money kins could raise Judge. for the evening McGee called Swano Knox, Hawkins him referred to Alan a “sen- 26th to inform him fix the was off. next general, approved ior” El Rukn who the fix. morning Maloney lawyer told that a Swano Swano testified he met with in McGee had left a file for him in his chambers and January February or of 1986 to discuss the deputy directed a sheriff to retrieve it. they $10,000. figure fix and arrived at a of chambers, Judge’s When Swano went to the Swano, According to McGee talked with Ma- Maloney money handed Swano the file of he loney figure, and confirmed the but McGee passed had to McGee at the start of the trial. told fix upon Swano was conditional guilty by Hawkins and Fields found were putting good Judge Swano on a “a case” so Judge subsequently and sentenced to death. Maloney would not look bad. Swano then on, El informed the Rukns that the bribe was By May grand jury pro- at least $20,000 although padded figure he to Robinson, ceeding was convened and under a money ensure some for himself. He had grant immunity, judicial of testified about however, difficulty, collecting some bribery general Maloney bribe in particular. money Finally, down, from the El yet Rukns. the No indictments had been handed trial, morning however, of surveillance records practice indicate and Swano continued to Judge Maloney. early Swano left court El and went to the Rukn before In late 1988 or Maloney timely appeal of filed a notice conference als. pretrial case had Swano jurisdiction under 28 U.S.C. and we have chambers. After ev- Judge with left, Maloney § 1291. Judge asked had eryone else standing [he] or not was “whether

Swano to mean was tall,” understood II. which Swano of federal investi- questions resisting the he appeal Maloney’s argument on is some- if Maloney also asked Swano Judge gators. According Maloney, the convoluted. what any help.” of lawyer or sort he “needed knowing perjured testi- prosecution’s use stairway of in a back the Summer mony suppression impeach- of material courthouse, Maloney again asked regarding El Rukn wit- ment evidence tall,” “standing because he if he was Swano jury properly prevented the from nesses investigation there is a lot of had “heard Judge Maloney evaluating whether returned conversation, During the Swano going on.” bribe, racke- which was Hawkins/Field govern- Maloney that he understood told 19th, five, teering 1986 or on act on June put together a tax case trying to ment 27th, appears insignif- June 1986. This issue against him. six, given racketeering act the obstruc- icant 26,1991, Maloney was indicted activity June justice On tion of in 1988 and proceeded case grand however, and the Maloney, a federal According to becomes theory The defense’s in March 1993. determining to trial if material operated a and Robinson had five-year of limitations if met RICO’s statute “rainmaking,” par- where the argu- scam known agree one of two further we also along (1) to the pass the bribe ticipants never ments: withdrew from the con- (2) rebutted government, was-returned; judge. The spiracy the bribe or when Maloney’s finan- theory with evidence if did not withdraw at that even that he exten- indicated time, justice cial which activity records the obstruction money the fact sively orders hide used 1988 and 1990 was insufficient to extend money than spending more he that he was conspiracy past the last aborted bribe. legitimate sources. On from all received Agreeing arguments is with one of these two 16,1993, Maloney on convicted April precondition accepting Maloney’s also a all counts. attacks on the statute of limitations instruc- application Sentencing tions and the reached in this the verdict was After Finally, Guidelines. contends judges in the North separate three district com- the instruction on the RICO interstate held that Ho District of Illinois William ern requirements, and the introduction of merce ease, in this gan, prosecutors one of bribes, evidence on the Chow Rosario information in the cases suppressed material cards, both erroneous. This house of were and ordered new trials. See before them face, upon precarious on its falls flat closer Boyd, F.Supp. United States analysis. (N.D.Ill.1993), aff'd, 55 F.3d 239 Cir. Burnside, 1995); 824 States v. United A. Prosecutorial Misconduct (N.D.Ill.1993); United States v. F.Supp. 1215 (N.D.Ill.1993). Andrews, during F.Supp. 1273 contends that his prosecution knowingly the use of testimo trial used false All cases involved of these Brady testimony right of the El Rukn and violated his under ny cooperating members Maryland, El Rukns 83 S.Ct. organization prosecutions in (1963) exculpatory coop two of to be shown for various crimes. Because witnesses, prosecution’s posses Earl that is in the erating El Rukn Hawkins evidence Kees, reviewing in sion. In the denial of a motion for and also testified this Derrick upon allegations, a new trial. The district a new trial based such we Maloney moved for court, however, judgment this and all other defer to the district court’s as denied motions, significance wrongfully withheld ruling that the whether the evidence post-trial testimony government might if disclosed have El Rukn in this case was changed trial. this markedly El Rukn tri- the outcome of the When different than law, petition. 1991 to lie on his habeas our in late pure issue of question revolves impeachment suppression of such 242. While F.3d at Boyd, 55 de novo. review is violation, Brady give can rise to a evidence trial for to receive a new In order — at -, at Kyles, see testimony or knowing use of false either the (citing Bagley, United States evidence, Ma exculpatory suppression of (1985)), it that the evidence was loney establish must im must be more than mere cumulative “material,” is, that “there is reasonable that Kozinski, peachment. States v. that, for the had it not been probability Cir.1994). Because Swano would have improprieties, the defendants took recantation admitted he witness “A at 245. ‘reason acquitted.”3 Id. been suspecting while the wit statements is ac of a different result probability’ able making into nesses had been intimidated evi when the Government’s cordingly shown statements, taking as well statements with suppression ‘undermines confidence dentiary knowledge falsity, such full of their evidence ” Kyles v. the trial.’ Whit in the outcome of merely cumulative and the would have been 1555, 1566, U.S. -, -, ley, court did not abuse its discretion district (1995). Maloney alleges 131 L.Ed.2d finding. so respect to the improprieties with witnesses, testimony Cooley, Hawkins and Kees. and the El Rukn 3.El Rukn witnesses ^[8] According to the evidence introduced cases, Hogan and the Unit- other William Cooley Attorney’s Office for the Northern ed States prosecution Maloney claims that drug usage, facilitated sex- District of Illinois Cooley made in his a statement suppressed liaisons, phone personal and extensive ual meeting government. He re with the first calls, El by cooperating from the witnesses “didn’t have to bribe portedly said that he organization, including Rukn Hawkins Ward, the First judges See, because he was with Boyd, F.Supp. at e.g., Kees. Ward, you the First when were with of Hawkins’ and Kees’ 1324. This evidence supposed hap everybody knew what was activity and re- post-incarceration criminal According Maloney, this statement pen.” to the ceipt of benefits was not disclosed bribery defense, in the allegations fully at trial. rebutted nor was it testified to trial, court, however, Cooley at howev ease. admitted found that such Chow The district er, fully evidence, assuming honest with them included false tes- he “was not even them,” beyond cumu- talking timony thus went the realm of first started [he] when given not material any inconsistency impeachment, between his tri explaining lative testimony. and Kees’ Fur nature of Hawkins’ testimony prior and his statements. al nor Kees testified neither Hawkins thermore, tapes of conversa Because view money they pass the Marcy confirming that ever saw Swano Cooley and tions between bagman, Judge Maloney, or even his fix, jury’s findings along to of a and the the existence entirely McGee, testimony the El Rukn predicate acts oc two other least “rain-making” curred, consistent with the defense’s not an of discretion it was abuse theory. suppression court to find that the district the ease. to the outcome of

was not material responds suppressed evi- testimony were false dence and borderline 2. Swano testimony Hawkins’ significant in relation to him the told about regarding what Swano allegedly withheld prosecution The conver- and whether this return of the bribe by former clients one of Swano’s statements 27th of place 19th or the took on the told this client sation that Swano had that revealed false, violations, testimony but it was not alleged that some of the Brady the district for the 3. As findings. these on the basis for deciding question that did not elaborate the court assumed without Thus, to the basis suppressed by we will limit our discussion exculpatory was the evidence rule—the lack upon the district court did allegations which prosecution. the of false the As to materiality. passing testimony, note in the district court did prosecution’s June.4 the direct exam- subjects. Under that and all other That ultimate ination, testified that fairly stretch; Hawkins result is a told substantial it is Judge Maloney 19th that perhaps him on June likely memory had more that if Hawkins’ prosecution the returned bribe. at- of dates altogether, became discounted then impeach testimony this tempted to with a there would have no one support been left to prior statement Maloney’s inconsistent Hawkins made basis the statute of limitations According government, to before trial. the defense. probability There is no reasonable Hawkins had told them earlier Swano that'disclosure of the information would have merely Maloney’s acquittal on resulted in had stated June 19th that on statute of back, give money grounds. limitations wanted to not already Maloney that he did. theorizes that Even if suppressed evidence would jury if the had known how beholden Hawkins jury have caused the to believe the bribe was prosecution, was to the it would have in- 19th, returned on June it is still not material prior ferred his inconsistent statement unless either withdrew from the that the bribe was returned on the 27th was conspiracy returned, when the bribe was or attempt prosecution to tell the what it his later acts of tampering witness are insuf- argument, wanted to hear. Under this if the ficient to extend the for statute of jury prior had discounted inconsistent purposes. limitations Given our resolution of statement, it would have found the action to below, these two issues we do not find that however, Maloney, be time-barred. makes a the district court abused its discretion or questionable assumptions number of legal by denying committed Maloney’s error reaching this conclusion. motion for a new trial. Initially, argument assumes that B. Withdrawal drug evidence of usage fa- vors changed impact would have of Haw- Maloney asserts that the district testimony Maloney’s kins’ favor. erroneously Haw- court refused to read his with testimony kins’ on direct was that the drawal despite bribe instruction the evidence that Although returned on 19th. June Hawkins bribe was returned. “General government impeached testimony ly, with a a defendant is entitled to an instruction on prior inconsistent money any statement recognized defense sup the law and 27th, ported returned on the the defense reha- sufficient evidence to allow rea bilitated it on cross-examination and recross sonable to in the find defendant’s favor.” when Starnes, Hawkins admitted that he had testified United States v. 14 F.3d (7th being the return on the 19th trials (quoting United States Cir.1992)), dating Schweihs, back to 1987 and he admitted Swano told him right the bribe was returned rt. ce Anthony Sumner, before Rukn, a former El We must de testified, which was the 19th. on While it is cide de novo question of whether Malo- possible suppressed evidence ney would have introduced sufficient evidence to allow Maloney’s bolstered equally possi- it is find, in accordance with the appli ble that appeared law, Hawkins have would to be cable that he withdrew from the conspir drug addict who not be acy. could counted on Casanova, remember Cir.1992). exact or dates conversations in In making this de any event. speculates termination, that if Haw- we must remember that with testimony kins’ being about the return on requires drawal an affirmative act on the discredited, 27th was Swano’s testimony part conspirator. He must either go would uncorroborated and authorities, unbelieved on confess to or “communicate to Kees, 4. As to prosecution. asserts that further Maloney, im- makes little peachment would tainted his translation attempt point materiality out the such the El Rukn tapes. "code" surveillance discovery. only tangential He makes a leap to “bagman” when Kees inserted into a few how this would have affected Hawkins’ testimo- not, predecessor translations where his the ny. jury might please have inferred this was done to appearance standard for the he has aban threshold conspirators that his each of faded to propriety was raised. When Swano goals.” its United conspiracy and the doned (7th fix Sax, effectively the state’s the Cir. rebut 39 F.3d States Hawkins, sufficient; 1994). good. According to inactivity not the called off for is Mere “affirmatively hot explained renounce[] that “the case was too must Swano conspirator enterprise,” go through to with it no the criminal and he didn’t want goals of the DePriest, somebody it— more ... had leaked Cir.1993), steps “defeat or disa it to by taking somebody organization to had leaked the Sax, (Tr. 1559-60). conspiracy’s purpose.” no the FBI.” There was vow would be at evidence introduced bribes; only evi unreeeptive to future return of the Maloney asserts that merely on the matter revealed dence all act incon- bribe was an affirmative Hawkins did that this under these circumstances bribe This, purpose. conspiracy’s with the sistent conspiracy’s objectives comport not with the nature of ignores the conditional fixing of cases. and criteria for the Malo- surrounding the circumstances the bribe and ney’s bribe therefore more return of the Many and convictions indictments it. gone than an affirmative akin to a deal sour a already at this time as judges had occurred attempt purposes of the cons to defeat investigation. Accord- Greylord of the result Pofahl, 990 piracy.5 In United States v. Swano, him that told ing to McGee — denied, $10,000 accept the bribe Maloney agreed to -, 126 L.Ed.2d good putting on “a upon Swano conditional and cert. 2671). (Tr. elaborat- case.” Swano [defense] (1993), conspirator a of the the members ed on what go help to to Guatemala to was scheduled in the instant case: this to mean understood drugs. learning arrange shipment After looking bad judge was worried about arrested, co-conspirator that a had been like this. double-murder case on a serious trip. He conspirator canceled his scheduled together I had to have the witnesses And an affirmative act to argued that this was way I de- I had to do the case conspiracy. The court withdraw from him; the state had a it to scribed holding that “Nunn’s decision to disagreed, case; that we had nulli- weak identification trip in the face of cancel his to Guatemala had, fact, and that we fied Sumner hardly action possible an affirmative arrest the tes- eyewitnesses that would contradict an conspiracy.” Id. It was to defeat the (Tr. 2571). timony of the state’s witnesses. canceling attempt to detection evade per- emphasized “it wasn’t a hundred supposed to be in furtherance act which was good put had to on a guarantee. We cent equate to a this cannot conspiracy, of the but 2586). (Tr. told This is what he defense.” By the same token withdrawal. explained fix to El Rukns he when to be in may a bribe intended have canceled Thus, called to end the them. when McGee con- the RICO and extortion furtherance of fix, explained that “the State witnesses he him from not withdraw spiracies, but this did going too good, and the case was too were conspiracies. those 2669). (Tr. good Several for State.” any that the absence presence of FBI counters testified that the witnesses after return building courtroom evidence bribes agents in the and the intend- that this was bribe confirms and a clear Hawkins during Hawkins’ trial was obvious He admits closely signal a withdrawal. being ed the case was indication signal inactivity cannot withdraw- itself possible for a fix. monitored Moreover, since it was jury might accept bribes. future contends that the 5. The dissent evidence, provide armed Maloney's conclusion had it been reached different burden to such prosecutorial misconduct. with the evidence of impermissible would have been testimony only changed as to the his Hawkins one bribe in the middle it from the return of infer Impeachment of date the bribe was returned. government's failure or from the of a case therefore, evi- testimony, would not create thereafter. provide additional bribes evidence of unwillingness establishing Maloney’s dence see, Sax, al, argues -, 2357, 2362, 39 F.3d at but 132 L.Ed.2d 520 (1995); Edwards, it evidences his intent withdraw when the United States v. 36 F.3d (7th Cir.1994). ignores Maloney bribe returned. This argues was inter conspiracy. character of the the evidence mittent After failed to establish either the Greylord investigation public pending judicial became existence of a proceeding or knowledge conspirators knowledge in waited his of it. We will reverse a con- years attempting if, almost three before viction for only anoth insufficient evidence after long Judge Maloney viewing er bribe. As in light re the evidence most favor- bench, government, mained on the “the central criminal able to the it is determined that purpose” conspiracy, jury to fix no rational cases when could have found the defen- feasible, yet guilty beyond ever had not ended or dant been a reasonable doubt. Brandon, accomplished. McKinney, United States v. United States v. (7th Cir.1995). substantial, There was unrebut bribe, After the aborted Hawkins ted, evidence introduced to establish the exis practice Judge continued before judicial pending tence of a proceeding and Maloney, Maloney McGee continued Maloney’s knowledge of it. Robinson stated Nothing distinguished to meet. post- this 5, 1988, May that on Maloney’s before first inactivity post-Jones Hawkins bribe from the “standing Swano, tall” conversation with he inactivity. bribe it was not error to grand jury testified before the and was asked deny Maloney’s proposed withdrawal instruc questions passing about his many of bribes to tion. specific judges, including Judge Maloney. In 1989, Robinson was again ap summoned to C. Obstruction of Justice pear grand jury before testify on the Maloney arguments four support raises subject. same February On IRS reversing justice his obstruction of convic- investigator Czurylo specifically Dennis in § tion under limiting 18 U.S.C. 1503 or subject formed that he was the of a justice extent to which the obstruction of grand jury investigation and served him with conjunction count can be used with the subpoenas authority issued under the of this (1) upon other counts: it was based insuffi- grand jury. Czurylo also testified that he (2) evidence; cient given was served a total of approximately grand (3) issue; improper instruction on the jury subpoenas investigation alleged conduct is not actionable under Maloney.6 Agent IRS Rick Kozma testified (4) 1503; § justice the obstruction of that he brought grand jury into the conviction is insufficient to extend the RICO investigation September conspiracy for purposes. statute of limitations Czurylo 1989 to aid in evaluating the infor We will argument address each in turn. they mation received from subpoenas. these The owner of Currency the Park West Ex (cid:127) Sufficiency 1. of the Evidence change representative and a of an investment prohibits person Section 1503 advisory firm both having testified to re from endeavoring to impede obstruct or subpoenas ceived during information justice.” “due administration of period. To establish With the wide sweep grand of this section, require violation of this courts investigation, it was clear that government to establish that the defendant was aware it pending spoke when he judicial pending knew of a proceeding and with fact, Swano in the summer of impede intended to its administration. See Swano him told at the they time that “I hear Aguilar, States v. (Tr. trying put are you.” a tax case on Maloney argues Czurylo's investigation testimony, Agent Czuiylo was con- clearly grand jury was not investiga in aid of the ducting analysis a cash flow he had used to Ryan, tion. United States v. 455 F.2d 728 Cf. testify judges in the trials of several other who 1971) (conviction Cir. reversed because of charged taking were bribes and thus was transparent grand jury subpoenas use of in aid of clearly grand jury investigation. in aid of the investigation). unrelated ample IRS There was

657 ror, distinguished its case from 2765). August that in the Court Finally, Roby testified jury instructions which erect a FBI with a erroneous he was served of jury presumption about an element of the offense. grand appear before subpoena to -, 113 S.Ct. at 2082. that his case Id. allegations testify about fixed, decision was consistent with the hold- thus Court’s Judge Maloney had been before Clark, 570, 580, ing of Rose v. 478 U.S. 106 jury proceeding indicating grand that 3101, 3107, (1986), 92 L.Ed.2d had S.Ct. pending when was indeed still jury erroneously instructed where the “standing tall” conversation his second malice, an element of the offense of investiga- that It is well established Swano. murder, degree presumed pre- second could be intention of with the tions undertaken killing jury from the existence of the unless grand a are senting before evidence by the defendant. presumption was rebutted administra- to constitute “the due sufficient § justice” under 1503. United tion of jury presume a is instructed ‘[w]hen Cir.1984).7 McComb, v. facts, predicate from it still must malice beyond the existence of those facts a

find Jury Instructions Clark, doubt.’ reasonable Rose U.S. 570, 580, 3101, 3107, 92 [106 S.Ct. district Maloney contends that (1986). And when the latter facts ‘are 460] in its reversible error court committed closely so related to the ultimate fact to be of jury the obstruction charge to the presumed that no rational could find Although gave court justice count. finding that ulti- those facts without also for pattern instruction Seventh Circuit fact, making findings is func- mate those 1503,8 justice § it added under obstruction of tionally finding equivalent to the element in supplemental instruction. This its own presumed.’ required to be Carella Cali- purposes of Rack “[f]or struction stated fornia, [109 491 U.S. S.Ct. Four, govern eteering Act 6 and Count (1989) (Scalia, con- 218] 105 L.Ed.2d prove proceed that an official ment need not curring judgment). to be actually pending or about ing was Sullivan, at -, The at the time of the offense.” at 2082. instituted situation, reviewing may this was not an government concedes that a court find In this law, argues difficulty concluding pre of the but accurate statement little jury’s any part harmless. in the deter sumption played error was no guilt beyond a defendant’s mination of the pro- most recent Supreme Court’s doubt. reasonable harmless error standard nouncement on the apply Sullivan’s had occasion in Sullivan v. We jury instructions came -, for instructional er Louisiana, error standard harmless Parmelee, 42 (1993). F.3d States v. 2078, 2081, In hold- rors (7th Cir.1994), in- doubt ing that an erroneous reasonable 133 L.Ed.2d er- constitute harmless struction could never charge provided as follows: Maloney’s alleged 8. That con- The defense asserts that he warned him with Robinson where versation charged J. is Defendant Thomas might wearing be a wire evidences that Swano 6(B) 6(A) Racketeering and in Count Act rather than a about law enforcement concern grand juiy. endeavoring the due ad- to obstruct Four with Maloney’s part of This distinction charges, justice. To sustain these argument of his indict- ministration that Count IV meritless ment should have failing prove following propo- been dismissed for must pending judicial pro- allege the existence of a sitions: specified ceeding. the existence The indictment First, Maloney endeavored to that defendant investigation, which a federal law enforcement of is sufficient justice; and due administration of obstruct the investigation "to if the is undertaken Second, Maloney’s acts were that defendant contemplated presentation presently secure evidence before the is, corruptly, with the knowingly done McComb, grand jury." impeding due administration purpose event, any the conversation with at 561. In justice. 1986, long place before took in late Robinson activity justice period when the obstruction occurred. instance, the violation of a section harmless. For Parmelee involved Swano testified that immigration prohibited laws which receiving Maloney’s of the after “standing tall” knowingly willfully person trans- warning from in the summer of he informed illegal alien within the porting United Maloney knowledge govern- of his Although the district court instruct- attempt States. ment’s to make out a tax case it must find that jury that the defen- ed the against Maloney him. therefore had knowl- transporting alien he was dant knew the edge that his statement to Swano could rea- country illegally, it did not in- entered the sonably investigation by interfere with an the jury struct that must find that the the only IRS. The evidence at trial introduced willfully, in order to further case,” defendant did so however, of a “tax was the unrebutted entry. illegal Id. at 391. Al- the aliens testimony Agents of Czurylo IRS Dennis recognized theory” jury that “in though we they investigating Rick Kozma that were Ma- an knowingly could conclude that individual loney’s grand financial records in of aid aliens, willfully transported illegal but not we jury investigation Maloney and had told of factual found that under the circumstances of A finding this fact. endeav- case, unrebutted there was evidence of against ored to obstruct the tax case him is in transporting mental state the defendant’s finding the same as a that he endeavored to Thus, the alien. Id. at 393. the instructional pending grand jury obstruct the proceeding jury, error harmless. rational “[A] was investigation being pur- because the tax which found that the defendants knew the grand jury investigation. sued in aid of the illegal, aliens were also would have necessari- Furthermore, grand it was unrebutted that a ly found that the defendants knew their ac- jury proceeding pending between 1988 tivity furthered the aliens’ violation of the testimony and 1990. any There was no law.” Id. investigation place during pe- which took riod was independent grand somehow ease is also The instant well-suited for a jury’s Thus, authority.9 jury because the determination harmless error under Sulli- found that endeavored to obstruct through supple- van. The district court its justice, the due administration of and be- essentially permitted mental instruction jury cause no rational could have failed to jury presume pending to the existence of a pending find the existence grand jury of a judicial if it proceeding attempt found an proceeding during Maloney’s attempts to ob- justice. obstruct administration the due of justice, struct then the instructional error Maloney guilty violating In order to find could not jury’s have to the “contribute[d] § 1503 under the district court’s erroneous Parmelee, guilty.” 393; verdict of 42 F.3d at instruction, though, still had to find Illinois, Pope see v. 481 U.S. 107 beyond a reasonable doubt that he made one 1918, 1922, (1987). S.Ct. 95 or both of the statements to Swano in an justice. attempt Although to obstruct in the- Scope § 1503 ory jury under this instruction could con- justice vict an individual for obstruction of Maloney argues that alleged any judicial without pending evidence of a justice obstruction of in this witness proceeding, the factual circumstances of tampering, § is not actionable under suggest case actual verdict Congress was not In enacted the Victim and Parmelee, (“VWPA”) so influenced. See F.3d at 393. Witness Protection Act and re finding justice The factual of obstruction of § is from moved 1503 all references to wit closely so related to the ultimate and Coupled unre- nesses. with the enactment of butted pending § fact of the existence of a which deals with witness intimidation grand jury proceeding harassment, the error is the Second Circuit held that long recognized 9. We usually "that it impede Attorney’s or FBI office, Attorney’s task of the United States the investigation during pendency office of a FBI, help agencies of such as the to amass grand jury proceeding was the same as an at- presented and coordinate the evidence to be grand jury.” to a tempt impede pending grand jury proceed- McComb, 744 F.2d at 561. ing itself. only any attempt by could infer that justice charges could not have en obstruction witnesses intended remove Congress statute of the RICO 1503, including extended § scope tirely from purposes. He raises number limitations States clause. See omnibus from position. support of this (2d points in Hernandez, Cir. v. court, rejected such an 1984). This (a) Maloney contends ob argument in United repeal” “implied post-conspiracy attempts acts were struction (7th Cir.1985), Rovetuso, 809, 824 not have extend which could concealment conspiracy for of limitations statute ed (1986), holding that “witness L.Ed.2d States, under Grunewald United purposes charged under may still be tampering 963, 972-73, 391, 402, of the VWPA despite the enactment § 1503” Grünewald, three § 1512. in fraudulently succeeded ob had individuals rulings prosecution” from the taining “no amend responds the 1988 in 1949 1948 and of Internal Revenue Bureau VWPA, protec extended the which ments Subsequent ac their tax evasion cases. for as intimi as well persuasion to witness tion conspirators were directed at tivities of the United dation, of undercut the rationale in irregularities (9th preventing detection of Lester, 1288, 1295 749 F.2d v. States they in which had secured Rovetuso, the manner Cir.1984), approval cited 395, 77 at 969. rulings. Id. at S.Ct. favorable 824, wit coexistence of for F.2d at 768 subsequent activi held that Court these The §§ 1503 and 1512. under both tampering ness original not be used to extend ties could Circuit, following position its in Second purposes of limitations conspiracy for statute Hernandez, on simi disparaged these cases objective conspiracy main of the because Masterpol, v. grounds United States lar 398, Id. at 77 long accomplished. Cir.1991). been (2d had posi 760, This 763 F.2d 940 emphasized, 970-71. The Court at S.Ct. however, minority one. Other tion, still a is must be that “a vital distinction in line with to fall have continued circuits done acts of concealment between made 1988 amend holding after Rovetuso’s objectives criminal of the main furtherance Moody, See, v. e.g., United States ments. of concealment conspiracy, and acts (11th Cir.1992), of 1420, cert. 1424 F.2d 977 objectives have been after these central 1348, done denied, 944, 122 113 S.Ct. U.S. 507 up obtained, only covering purpose of for the (1993); Kenny, v. States 730 L.Ed.2d 974; 405, Id. at 77 S.Ct. the crime.” Cir.1992). (4th after 339, In Ken 342-43 973 F.2d 672, States, 360 U.S. Ingram v. United see correctness of pointed ny, the court out 10, 1314, 1319 10, n. 3 L.Ed.2d n. 79 S.Ct. 679 approach: this (1959). Maloney suggests that Grüne 1503 § 1503 clause 18 U.S.C. The omnibus of this case. controls wald acts “that ob- clearly encompasses ... struct, impede, due administration or Grünewald, however, the Unlike § 1512 more justice.” The fact objective nev conspiracy’s main criminal in- improper conduct specifically addresses case. United “finally in this attained” er preclude appli- not volving (6th a witness does Cir.), 1077, 1082 Lash, 937 F.2d v. a more § 1503. The existence cation of 397, denied, 949, 116 112 S.Ct. 502 U.S. cert. does not neces- narrowly tailored statute denied, (1991), 502 and cert. 347 under a broader sarily prevent prosecution 943, 1061, L.Ed.2d 113 112 117 U.S. not statute, long defendant is as the so its main when conspiracy A ends conduct. for the same punished under both accomplished or objective has been criminal i.e., 475, abandoned, McKinney, F.2d at 954 depart from see no at 342. We reason Id. mis design substantive to commit “when the ques- precedent our analysis and Co., Grinding Inc. Midwest ends.” conduct tion. Cir.1992). 1016, 1024 976 F.2d Spitz, v. Conspiracy Ability to Extend murder, example, ends conspiracy to A McKinney, is the murder committed. respect argument with when

Maloney’s last many of the Court’s at 475. Unlike justice count is that 954 obstruction 660 (2d Cir.1992) (“acts object 246, cases “where the of the

concealment n. 8 or state act, conspiracy was discrete criminal here designed ments ongoing to conceal an con specific a crime that no we deal with spiracy conspiracy”), are furtherance of that terminating event.” United States v. Mack denied, 998, rt. 113 S.Ct. ce 1619, (7th Cir.1978). 376, ey, 571 F.2d “Where (1993). Maloney’s 123 L.Ed.2d 178 contemplates continuity helped preserve statements to Swano acts, performance purpose and a continued position on ingredi the bench —the essential to exist until presumed there has been conspiracy’s ability ent to fix cases. showing an affirmative that it has terminat- LeFevour, 977, See v. United States 798 F.2d ed_” Elwell, United States 984 F.2d (7th Cir.1986) (“the acts of concealment (1st Cir.) 1289, (only occurring event objects conspiracy— furthered] drug between the last transaction and the obtaining money in lengthen resulted] —and year indictment a and a half later was an duration”); ing Xheka, its United States v. justice), endeavor to obstruct cert. de denied, 704 F.2d cert. - nied, U.S. 113 S.Ct. 78 L.Ed.2d 682 (1993); Coia, United States v. (1983); Howard, United States v. 770 F.2d (11th Cir.1983) (quoting (6th Cir.1985), 60-61 Mayes, United States (6th denied, Cir.), 1008, 422 cert. U.S. 95 (1986). Thus, Grünewald does not exclude 2629, (1975)), S.Ct. cert. de justice the obstruction of acts from the RICO nied, 973, 2349, 104 466 U.S. S.Ct. 80 conspiracy for purposes. statute of limitations (1984); L.Ed.2d 822 United States v. Hamil (6th ton, 1262, Cir.1982), 689 F.2d 1268 cert. (b) Maloney argues that his obstruc denied, 1117, 1117, 753, 459 U.S. tion did not conduct the enterprise RICO 754, (1983); 74 971 United States cf. through pattern a of racketeering activity (4th Grubb, 426, Cir.1993) v. 11 F.3d 440 under Young, Reves v. Ernst & 507 U.S. (although only jus an endeavor to obstruct 184-86, 113 1163, 1173, 122 S.Ct. L.Ed.2d 525 period tice occurred in the before indictment (1993). defense, According to the in Malo fraud, bribery court found that “such ney’s obstruct, endeavor to taking unlike his activity likely to long was continue for as as bribes, of he was attempting to conduct his in authority Logan Grubb remained Count “own affairs” rather than the affairs of y.”).10 the In the instant the main criminal enterprise, i.e., the Circuit objective, Court. Id. Cit feasible, fix to cases whenever was ing this holdings court’s in United States v. accomplished neither nor long abandoned as Crockett, (7th Cir.1992), 979 bench, F.2d 1213 Judge as remained on the denied, 998, 113 cert. practice him, 1617, 123 Swano to continued before S.Ct. (1993) friendship L.Ed.2d 176 McGee continued with Transp. him.11 Overnite Co. Concealment, therefore, (7th v. was an overt Local No. act 904 F.2d conspiracy’s Cir.1990), furtherance of the objec main argues Maloney’s defense Eisen, tives. See v. United States 974 F.2d endeavor to obstruct was not a function of his argu- The fundamental flaw in the dissent's agreement the terms of the in which it was made respect justice ment with to the obstruction of signal and its return did not a reluctance to fix recognize conspiracy count is the to failure that a future cases in the event conditions were suit- contemplating continuity purpose a of and a con- able. offered no other evidence to affir- performance presumed tinued acts of is to exist matively conspiracy show that the ended. Just proven affirmatively until long otherwise. As as during inactivity as between the Jones and exist, conspiracy presumed is to acts of con- bribes, conspirators Hawkins continued to presumed during peri- cealment are to occur associate, they positions maintained their in the conspiracy od of the and are not introduced for court, and none of them communicated a desire purpose extending the cy. conspira- of the life of the to abandon the either to the others or "[T|he government. to utterly defendants affirmatively Maloney suggests prove failed to either that the return of the the con- bribe spiracy objectives constituted an abandonment of the had any been abandoned of or that of them conspiracy. As our discussion of withdrawal had withdrawn. Such affirmative defenses are indicates, however, Hamilton, the bribe was canceled under strict.” 689 F.2d at 1269. acts], predicate other closely [the in time to upon effect and had no court on the position victim, the same same or involve involve the it.12 Vicom, See Inc. type of misconduct.” Maloney’s con- belie facts of this case The Inc., Serv., 20 F.3d Harbridge Merchant with During both conversations tentions. (7th Cir.1994), (quoting Morgan v. Bank judge of Swano, Maloney an active 970, 975 Cir. Waukegan, of at least County who of Cook Court Circuit 1986)). pat not defeat the alone does Time enterprise co-managed the or co-operated com three-year gap between tern. “[A] Grubb, at judges. See the other acts not in and predicate does mission 182-84, Reves, at (citing 507 U.S. 488-39 prove pattern to a failure itself amount 1172). fol- conversation first at S.Ct. activity.” racketeering United States Maloney’s Judge case conference lowed Church, and, arranged, Maloney had which chambers Court, authority Circuit under fact, gap con There to attend. was bound Swano the Jones and the time between sistent with may testimony some bribes, ongoing rela reflecting the Hawkins open conferences most such case Furthermore, conspirators. tionship time, he suggesting that during this court they if “have acts are related criminal in the court secure position used his results, partici purposes, or same similar The second conversa- private meeting. more commission, victims, or pants, or methods of courthouse, place which took at tion also by distinguishing are interrelated otherwise frequent required the Circuit Court events.” and are not isolated characteristics In- of clients. representation part of his Inc., at 2901. H.J. arranging a or meet- calling Swano stead standard, relatively broad Under this con- elsewhere, Judge Maloney chose to ing clearly their conceal related are bribes where it the would at courthouse Swano front an at ment. The endeavor obstruct to be seen suspicion for them less attract Maloney’s position Judge tempt to maintain addition, Maloney’s actions cer- together. underly It had the same fix cases. future that enterprise, in tainly effect on the had an predicate acts and the other ing purpose as the position they helped preserve participants and the same same involved the fixing possibility prolong and bench criminal integrity of the ultimate victim—the instances, con- Thus, Maloney in both cases. Grubb, at 440 justice system. Cf. when he enterprise affairs of ducted (witness to conceal attempt tampering in justice. to obstruct attempted sufficiently to the bribe related bribe was requirement). pattern itself for RICO (c) Maloney’s argument last with count is that the obstruction respect that the wit Maloney also contends part of not with were conversations Swano long after the too tampering occurred ness “continuity pattern. Under the RICO This, continuity. to establish test, pattern is relationship” a estab plus however, conspiracy had that assumes racketeering “the by proving that lished explained As we at the last bribe. ended related, they amount and predicates are ample evidence there was previously, criminal of continued pose a threat to or long as still on conspiracy was Tel. Bell Inc. Northwestern activity.” H.J. v. Thus, Id. on the bench. Maloney remained 2893, 229, 239, 2895- Co., 109 S.Ct. 492 U.S. long-term ac conspiracy was because (1989). Maloney sug it cer point,” tivity “a natural end without present. element gests neither continuity requirement. tainly satisfies Chicago Inc. First Enterprises, ob Shields argues first that the Cir.1992). 1290, 1295 related, F.2d Corp., sufficiently not were acts struction coneeal- Moreover, the bribes and both “committed somewhat they were not because Maloney's actions question, because suggests government "facilitation 12. The may these cases in instance. in standard either effect" test enunciated satisfied the and not We need reach survived Reves. not regular way conducting specific “a de- ment were statute of limitations instruction and legitimate ongoing upon hearing business.” H.J. jury fendant’s it reread in answer to a Inc., 109 S.Ct. at 2902. In Moreover, question. any even if there was bribes, Judge Maloney to the error, addition light jury’s it was harmless of the bagman from changed his Robinson to guilty verdict of on Act which was well McGee, speak Robinson not to warned period, within the limitations and our conclu might wire, wearing be Swano because he sion that this verdict should be allowed code, spoke engaged money laun- Neuroth, stand. See United States dering. Cooley also told about Paul 341-42 Baker, possible government informant U.S. 96 L.Ed.2d 678 them, against spoke to Hawkins concern- (1987) (finding that an “on or about” instruc might ing possibility testify against he tion despite presence was harmless error Thus, grand jury. him before the there was defense). of an alibi pattern.13 sufficient evidence of a RICO E. RICO Interstate Commerce Instruction D. Statute of Limitations Instruction — Relying Robertson, on United States v. The district court instructed the -, 131 L.Ed.2d 714 guilty could not be found of the (1995) and racketeering charge you Lopez, United States v. “unless find that he racketeering (1995), one of the committed acts set years forth in Count Two within five submits that the district court erred return of the indictment which occurred on when instructed the govern- that the June to find defendant prove ment must “that the Circuit Court of Maloney guilty”, Thomas J. County engaged Cook in interstate com- prove Racketeering must that he committed activity merce or its affected interstate com- Racketeering Act Act Maloney and/or merce. ... interstate commerce is affected if word, argues “thus,” that the use of the you find that the Circuit Court of Cook instruction, placement its in the implied that County any impact, regardless has of how Act 6 both Act 5 and fell within the limita indirect, small or on the any movement of period, respect tions an issue doubt with to money, services, goods, persons or from one issue, clouding Act according 5. Further state to According another.” Maloney, to Maloney, was that the court read a stan this instruction was erroneous in two re- early dard “on or about” instruction on in its spects. First, impermissibly broadened charge jury.14 to the Neither of argu these by allowing indictment to find ments have merit. The statute of limitations that the Circuit Court engaged either in or accurately instruction reflected that one of commerce, affected interstate while the in- the acts must have longer occurred no than only charged dictment that the Circuit Court years 26, five before June 1991. The district affected Second, interstate commerce. court’s use of the term “thus” served to jury should charged have been finding jury’s 6, direct the attention to Acts 5 and that the court “substantially affects” inter- only possibly acts which could come with state commerce. in period. Any the limitations doubt the hearing general had after “on Maloney, however, or about” did not raise these ob- upon instruction was hearing jections removed before the district court in accor- Thus, justice because the obstruction of count 14. This instruction read as follows: valid, substantively is and because the acts of charges The indictment that the offense was part ongoing conspiracy obstruction were of an particular committed "on or about” the date dates list- which straddled in which the Sentenc enacted, ing government were ed in each only Guidelines count. The district court need applying was correct in ney’s the Guidelines to Malo- establish that the offense was committed on a Morgano, sentence. See United States v. 39 reasonably date charged. near the date 1358, (7th Cir.1994), denied, - F.3d 1369 cert. -, 2559, U.S. 115 S.Ct. 132 L.Ed.2d 813 (1995).

663 There was on interstate commerce. effect This court 30.15 with Fed.R.Crim.P. dance broadening indict plain may impermissible for review no that we held has often Miller, 130, not chal v. 471 U.S. were United States any which ment. instructions error 1816, Boyles, 138, 1811, v. United States 105 S.Ct. below. See lenged (7th Cir.1995); 535, United (1985). presented uncon 541 57 F.3d 1379, Waldemer, 1386 F.3d 50 “di v. evidence that the Circuit Court States tested — U.S. -, denied, 115 S.Ct. acquisition goods cert. ... of rectly engaged in the (1995); States 2598, United commerce,” L.Ed.2d 845 132 services interstate (7th Cir.1994), Baker, 154, 161-62 v. law books and com through purchase its — 1383, U.S. -, denied, 115 S.Ct. cert. there was suffi equipment and thus puter (1995); v. States United L.Ed.2d 237 131 instruc justification to introduce the cient (7th Cir.1994), 1208, Mounts, — 1221 Robertson, at -, 115 S.Ct. U.S. tion. — 1366, U.S. -, denied, 115 S.Ct. cert. 1733, American (quoting States v. United at (1995); 222, v. States United L.Ed.2d 131 Indust., 271, 422 Building Maintenance U.S. (7th Cir.), 451, 454-55 Knapp, 25 F.3d 2157-58, 45 L.Ed.2d 95 S.Ct. -, 115 S.Ct. (1975)). panels of the Some Maloney’s argument is second court, relying upon the distinction Lopez’s equally merit. “substantial without waiver outlined forfeiture between require ly affecting” Olano, 725, -, standard describes 507 U.S. v. States that, (1993), aggregate,” stat “viewed 1770, 1777, 123 ment S.Ct. substantially which object to an concern activities utes the failure held —Id., objec at commerce. interstate constitutes waiver affect instruction general not review does at 1631. “Where plain thus error tion F.3d Espino, v. rela a substantial apply. regulatory See United statute bears (7th Cir.1994); commerce, United States the minimis character 258-59 de tion Cir.1994). Lakich, 1203, 1207-08 arising under individual instances cases, though, perhaps at-, out these latter Id. consequence.” Even is of no statute caution, have nonetheless an abundance Maryland (quoting plain error objection under the Wirtz, discussed n. Maloney’s will review we (1968)). standard. Unlike n. 20 L.Ed.2d objections plain error. no RICO, Lopez “contained] the statute ensure, which would element jurisdictional the “en Maloney’s contention the fire case-by-case inquiry, that through imper in the instruction language in” gages question affects interstate possession in arm “affects” lan missibly departed from the by “plain” It is no means Id. commerce.” error, let is not even in the indictment guage regulated RICO individual activities that the settled plain error. It well alone “substantially interstate affect” each must affecting inter matters regulate power — Robertson, at-, U.S. See commerce. right than commerce is broader state or (questioning 1733 whether 115 S.Ct. See itself. interstate commerce regulate provi not, “affecting commerce” under the States, 858, 859 n. 471 U.S. v. United Russell RICO, enterprise of the the activities sion 4, 2455, 829 4, 85 L.Ed.2d 2456 n. 105 S.Ct. of requirement to meet” have States, “would 431 (1985); Scarborough v. United commerce); substantially affecting interstate 1963, 1967-68, 52 563, 571-72, 97 S.Ct. U.S. Stillo, 553, 2n. 57 F.3d 559 United (1977). Thus, charge that 582 -, denied, 116 Cir.), (7th U.S. cert. Court of Cook of the Circuit activities (1995). Further 383, 133 L.Ed.2d 306 is S.Ct. interstate commerce County “affected” more, court’s instruction if the district even directly that to include evidence presumed attempt to es error, no Maloney made as well was commerce participated interstate i.e., prejudicial, that the error activities tablish that its intrastate evidence its to consider retires party before the pertinent part: “No thereto verdict, provides in 15. Rule 30 that distinctly to which stating the matter charge any portion assign or may as error objection.” grounds objects of objects party party unless omission therefrom 664 -, 62,

that it “affected the outcome of the District 114 U.S. S.Ct. 126 L.Ed.2d 32 Olano, proceedings.” Court 507 U.S. at (1993). Thus, agreements “a series of at 1778. failed to 113 S.Ct. pre-RICO under law would constitute multi allege government’s that the evidence would ple conspiracies could under RICO be tried requiring an instruction not have survived single ‘enterprise’ as a conspiracy if the de to find that the Circuit Court “sub- agreed fendants have to commit a substan stantially affected” interstate commerce. Neapolitan, tive RICO offense.” 791 F.2d at finding plain we have no basis for 3, Riccobene, 496 n. (quoting United States v. error. (3d 214, Cir.), denied, 709 F.2d 224-25 cert. 849, 157, 464 U.S. 78 L.Ed.2d 145 F. Chow and Rosario Cases (1983)). long alleged “So as the RICO co- Maloney argues that the district court im conspirators agreed participate in the properly Racketeering admitted evidence of affairs of enterprise, the same the mere fact 1, fix, Act the Chow and evidence of the they conspire do not uncharged directly Rosario case. He contends that each the Chow case should have been dismissed other” agreement does not convert the from the indictment and the Rosario case conduct enterprise’s through affairs improperly propensity used as evidence. pattern racketeering activity multiple into We review these contentions for abuse of conspiracies. Friedman, United States v. Cichon, discretion. See United States 48 535, (2d Cir.1988), denied, 854 F.2d 562 cert. (7th 269, Cir.1995), petition 274 cert. 1004, 1637, 490 U.S. 104 L.Ed.2d 18, 1995); (May Hubbell, Inc., Trytko v. filed (1989); 153 accord United States v. Lee Stol (7th Cir.1994). 715, 28 F.3d 724 Enter., Inc., (7th 1313, ler 652 F.2d 1319 Cir.1981), denied, 1082, cert. 102 1. Chow Case (1982); S.Ct. argues first Hughes, (6th States v. 895 F.2d improperly part Chow case was included as Cir.1990). conspiracy of the RICO because it involved specifically participants, Cooley some certainly has succeeded in Marcy, participate who did not in the other establishing Maloney agreed to conduct predicate ignores acts. This the nature of the affairs of the Circuit through Court sev- 1962(d). § capable “This section of RICO is acts, predicate eral though predi- even each providing linkage proceed for the in one cate act did not par- involve the exact same ing of a number of otherwise distinct crimes ticipants. Furthermore, the facts of the in- conspiracies through concept and/or stant support ease single enterprise conspiracy.” existence United States v. (7th Neapolitan, conspiracy. 791 F.2d RICO cert. The common element denied, S.Ct. predicate each act was the involvement of (1986); see United States v. Judge Maloney in capacity as a Judicial Gonzalez, Cir.) Officer the Circuit County Court of Cook (“The ‘enterprise conspiracy1 notion ... and a desire of all participants to effect a has much of made the old distinction between “corruption of that office.” United States v. ‘single conspiracy’ ‘multiple conspiracy’ Hampton, Cir.1986). irrelevant to RICO charges.”), Moreover, willingness pass Swano’s infor- mation about a federal investigation along to denied, 860, 68 and cer. Cooley and his desire to problems discuss his 178, (1991). 116 To in the Hawkins Cooley case with indicates prove single conspiracy, govern RICO the goals the kind of common and mutual benefit only ment need show that the defendant lawyers between seeking to obtain the agreed to conduct the affairs of the enter supports bribes which prise the inference of a through sin- the commission predi of two gle cate Ashman, conspiracy. acts. United States v. RICO See United States v. 469, denied, Cir.1992), Stephens, Cir.1995). cert. conspiracy his connection to the to establish included within Thus, properly was Chow clearly It admissible accept was bribes. indictment.16 purpose. Neapolitan, 791 F.2d for this See im argues that Chow was Maloney also at 506. RICO in the substantive properly included hearsay testi it was based count because Marcy’s state Cooley’s rendition of

mony, III. fix, and thus was insuffi regarding the ments reasons, Maloney’s convic- For the above however, government, ciently proven. The tion, deny and district court’s decision to non-hearsay aon introduced the evidence trial, for a new are Affirmed. his motion statement under co-conspirators’ as a basis Furthermore, 801(d)(2)(E).17 Fed.R.Evid. RIPPLE, Judge, dissenting. Circuit fix, including of the other evidence there was during the bond Maloney’s conduct Judge respectfully dissent from the affirmance I requirement hearing trial and the deny court’s decision to of the district Barsy, friend of the Cooley add Herb view, my if trial. motion for new a condition of team as Judge, to the defense permitted to hear the evidence had been properly included was fix. Chow misconduct, might well have prosecutorial upon validly relied and was Two Count rejected government’s submission Any sentencing. effect the Maloney’s during pe- the time conspiracy continued within credibility on the this bribe evidence of limitations. covered the statute riod other bribes was of the of the evidence limitations, the statute of To fall within participation Maloney’s direct result of conspiracy charged in this case must have Lee impermissible. See fix was not five-year period before continued within Inc., 1319; Enter., Fried F.2d at Stoller Therefore, it was indictment. the date of the man, F.2d at 563. upon prosecution to establish incumbent racketeering place act took one that at least 2. Rosario post-June 1986. The June after argues that the evi Finally, Maloney prove government relies acts on which bribe, uncharged Rosario osten dence of conspiracy were the of the the continuation to the prove his connection sibly offered to $10,000 of the bribe Swano alleged return conspiracy, was unneces enterprise and the (rather than on June on June therefore sary purpose and was conversations, 1986), cover-up and the Maloney sug propensity evidence. mere admonition, between “standing tall” unnecessary to establish gests that it was and Swano.1 judge because was a Circuit Court that he During the dispute. was not his status 1. arranged a Rosario government’s submis- accept the I cannot Maloney to confirm meeting with knowledge jury’s lack of that the that he was sion bagman and Robinson was his relationship with the to Hawkins’ respect fix The evidence willing to cases. indeed its evalu- not have affected Maloney’s government could connec only to bolster not offered money repaid on Court, whether the ation of but it was offered to the Circuit tion separate argument was a supported the Chow fix had not Even if the evidence —that conspiracy, Maloney Marcy a member of single conspiracy. has continued to be finding RICO of a prejudiced his substan that this his statements not established the overall RICO require rights reversal of the convic so as to tial the Chow fix Cooley need to conceal on the LeQuire, United States (11th tion. See conspiracy. were in furtherance Cir.1991), that, alleged in the summer 1. The investigation of the federal knew could not that this evidence counters Swano to bribe and told the Hawkins-Fields co-conspirator's state- admitted as have been that, alleged cooperate. It further refuse to in 1986 were made since the statements ments 1990, Maloney again Swano to July told lune or been in furtherance therefore could not have and cooperate. Maloney's refuse to assumes first 1981 bribe. This of the Indeed, my than June 27. co-conspirators June 19 rather communication to of aban testimony that colleagues admit could conspiracy’s goals.” donment of the Id. at jury’s 1370-71; Sax, a difference evalua- have made see also v. United States accept proposition 1380, 1386(7th Cir.1994) I that tion. Nor can (requiring F.3d respect in the dark with keeping the to conspirator “the steps must take affirmative significant not make a this matter did differ- to conspiracy’s pur or disavow the defeat ence in the outcome. Masters, pose”); United States 924 F.2d (7th 1362, denied, cert. 500 U.S. that, My colleagues conclude if even (1991) on money was returned June as the de- (discussing withdrawal as a “term of art in contends, that return fendant could not have conspiracy”). the law of In this conspira- from the constituted withdrawal jury was entitled to on conclude the basis of view, majority’s “Maloney’s cy. In the re- the evidence that had taken the turn of was ... more akin to a the bribe deal $10,000 returning affirmative act of bribe gone attempt than an sour affirmative to money. certainly an act Such is a communi purposes conspiracy.” defeat the In cation, conspirator, made to a fellow of his view, my judgment ought this is a to be conspiracy, abandonment of the and could jury. left to the Government witness Earl constitute a withdrawal. There is no evi money Hawkins first testified the bribe ease-fixing dence of bribes or of 19; after this ques- was returned on June after much action, and thus no demonstration that Malo- tioning impeachment and eventual from As- ney purpose continued to endorse the Attorney Hogan, sistant United States Haw- Sax, conspiracy. See 39 F.3d changed testimony say at 1387. kins his that Malo- ney money said he would return the bribe juryA should be entitled to consider Haw- actually June but he returned it on June privileged by kins’ treatment the United 27,1986.2 If the had realized that Haw- Attorney’s States Office its evaluation of very give definite motive kins had the lack of evidence of a continuation of the hear, testimony it wanted to conspiracy. testimony may its evaluation of his well have been different. recently We set require- forth the majority upon also relies the “stand- ments for withdrawal: ing tall” admonition the defendant to Swa- proving But one has withdrawn from a no as conspiracy evidence that the continued matter, conspiracy easy requiring is no up point. to that prove he partic defendant to both ceased

DePriest, 586] sub nom. Kerridan v. United ipation cy’s purpose, affirmatively (1992). [928], 112 in conspiracy, United States v. S.Ct. 1989 disavowed the Cir.1991), United States v. [118 States, cert. denied Bafia, Cir.1993), conspira ^[504] 949 conspirators judge. On that would continue neither as ty’s This reliance is Judge Maloney conspiracy view that the accomplished as view, agreed dependent purpose remained on the long case-fixing, nor as abandoned as conspiracy on the and that the objective activity majori bench, was a long Morgano, practice him, Swano continued to before (7th Cir.1994), U.S. McGee continued friendship with him. posits is, L.Ed.2d 813 This view for all It merely enough partic never practical purposes, cease of unlimited duration. (even ipation conspirator States, when the was ter Grunewald v. United minated conspiracy, Morga- 963, 1 from the (1957), Supreme ño). act, There must be distinguished “affirmative Court “between acts of conceal such as a confession authorities or a clear ment done in furtherance of the main erimi- 2. Testimony concerning 1559-70, cooperating return of the bribe a 49, 1697, witness. See Tr. 1648- Hawkins, came gang from El Rukn member Earl 1709-10.

667 im- dents, issue was this its consideration conspiracy, and acts objectives of the nal of infor- objec- by the absence permissibly skewed central these after done concealment- attained, concerning motivation to purpose Hawkins’ for the mation been have tives government. Had Id. at case of the support the crime.” the covering up after only of affiliation, it 405, jury known of Hawkins’ at 974. the 77 S.Ct. conspiracy might have determined covering up can themselves acts of deter- con- 19. If it had so that the on June nothing more than terminated indicate mined, charac- necessarily have apprehended— be would not do not wish spirators every Maloney-Swano crime as concomitant, certainly, of conversations terized the a mur- conspiracy. to conceal attempted part of that since Cain Lord. from the of Abel der 974; Ingram 406, see also at S.Ct.

Id. 10, States, 679 n. v. United (1959) n. ex

(“[T]he conspiracy cannot be life of after the of concealment by evidence

tended objectives been criminal

conspiracy’s v. Fin United States

fully accomplished.”); (9th Cir.), cert. de lay, 55 F.3d America, STATES UNITED — nied, Plaintiff-Appellee, (1995). If, previous we have as L.Ed.2d v. at held, of records ly the concealment Baydoun, simply grand are mislead and Rodolfo tempts to Pedro SILVA activities, Defendants-Appellants. a continuation rather than cover-up conspiracy, see United of the actual 94-2229, Nos. 94-2245. (7th Cir.1994), Roberts, 750-51 744, 130 U.S. -, Appeals, States Court (1995), surely two brief then Seventh Circuit. Swano, Maloney and between conversations Argued Sept. 1995. any specif year apart, unconnected held a actions, considered continua cannot be ic Decided Dec. theory, conspiracy.3 Under tion bribe, for a potential long as there is con from the Maloney could withdraw never law, this character our case

spiracy. Given reed on which much slender

ization is a too theory conspiracy. of continued

to base a

Indeed, con we have found that even when from the first to exert

spirators “intended discovery of the prevent efforts to

strenuous it,” in Mas involvement and of their

crime recognized

ters, we have F.2d at not are

that efforts to conceal conspiracy.

automatically part fundamentally, if even

More reach, permitted have been

should it, conclusion that

evidence before “standing inci- tall”

conspiracy included judge period was still LeFevour, during spirator F.2d 977 In United States upheld the We taking 798 F.2d at 982. Cir.1986), cover- bribes. whether a we also considered act of as an into evidence of that note original admission separate con- up conspiracy from object of the con- bribes). that furthered concealment taking the act (judge In this case spiracy spiracy. by a cocon- a note written of concealment

Case Details

Case Name: United States v. Thomas J. Maloney

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 15, 1996

Citation: 71 F.3d 645

Docket Number: 94-2779

Court Abbreviation: 7th Cir.