Professional Documents
Culture Documents
17-___
IN THE
ROD BLAGOJEVICH,
Petitioner,
v.
1
Justice Kennedy concluded that inducement was required,
but can be satisfied by proof of a quid pro quo agreement. 504
U.S. at 273 (Kennedy, J., concurring). He further stated that the
parties need not state the quid pro quo in express terms, for
otherwise the laws effect could be frustrated by knowing winks
and nods. Id. at 274.
10
explain why he has rejected those arguments. Id. at
357.
II. Factual Background
Petitioner Blagojevich was elected governor of
Illinois in 2002 and reelected in 2006 to a second four-
year term. Based principally on recorded
conversations and witnesses themselves charged with
serious crimes, the Government indicted petitioner for
extortion, bribery, and honest services fraud.
As relevant here, the charges related to three
alleged schemes. In none of them did petitioner
explicitly demand campaign contributions or other
property in return for any official act. Instead, the
Government required the jury to read between the
lines and rely on the testimony of others involved in
the communications about what they believed
petitioner really had in mind and implicitly agreed to.
A. The Alleged Attempt To Extort
Campaign Contributions From The
President Of Childrens Memorial
Hospital
The Government charged that petitioner
demanded a $25,000 campaign contribution from
Patrick Magoon, the president of Childrens Memorial
Hospital, in exchange for a Medicaid rate increase for
pediatric specialists.
In June 2008, Magoon began lobbying for
increased reimbursements for pediatric specialists.
Tr. 2145, 2506-10. In October 2008, petitioner told a
lobbyist he intended to approve the rate increase and
also stated that he wanted to ask Magoon for a $25,000
campaign contribution. Tr. 2364-71, 2415-18. On
11
October 17, 2008, petitioner called Magoon to tell him
that he had approved the rate increase, which would
take effect after January 1, 2009. Tr. 2511-13. Five
days later, Robert Blagojevich (the Governors brother
and fundraising chairman) called Magoon, introduced
himself, and then asked if he would raise $25,000 for
the Governors campaign fund.
At trial, Magoon testified that he believed the rate
increase was contingent upon a contribution of
$25,000 because Robert had asked him to raise the
money in a very strong suggestion and had
mentioned a January 1 deadline for fundraising.
Tr. 2521-22, 2548. Magoon decided not to raise the
funds for petitioner and stopped returning Roberts
calls.
During a November 12, 2008, recorded call,
petitioners deputy advised that the Governor still had
discretion over the rate increase, and petitioner
responded, [t]hats good to know. Tr. 2159-61. The
deputy testified that he interpreted petitioners
response as a direction to put a hold on the rate
increase, which he did, causing a delay in the start
date of the increase. Tr. 2161-65, 2247. (The rate
increase did go into effect in January 2009, though the
district court precluded the jury from hearing this fact.
Tr. 2558, 2596.)
B. The Alleged Attempt To Extort
Campaign Contributions From Horse
Racing Executive John Johnston
The indictment also alleged that petitioner
attempted to extort a campaign contribution from an
Illinois horse racing executive in exchange for the
timely signing of a bill that benefited the horse racing
12
industry. Again, that claim depended not on any
explicit quid pro quo but on third parties
interpretation of petitioners ambiguous statements.
As governor, petitioner was a consistent supporter
of the Illinois horse racing industry. Perhaps as a
result, John Johnston, a race track owner, was a
longtime supporter of the Governor. Tr. 2717, 2744.
In early 2008, Johnston made a commitment to raise
$100,000 for the Blagojevich campaign by the end of
October. Tr. 3764-70. On several occasions during
November 2008, Johnston told Lon Monk a lobbyist
who was previously petitioners Chief of Staff that
delivery of the contribution was imminent, and Monk
conveyed that information to petitioner. Tr. 3776-77,
3780-81.
Johnston had an interest in a pending bill that
would require Illinois casinos to pay a percentage of
their revenue to the horse racing industry. The
racetrack bill passed both houses of the Illinois
legislature and was sent to the Governors desk on
November 24, 2008. Tr. 1567-69, 2743-49, 2753.
Monk and others then began lobbying the Governor to
quickly sign the bill. Tr. 1569, 2756, 2769, 2986. In a
recorded conversation on December 3, Monk told
petitioner, I want to go to [Johnston] without crossing
the line . . . give us the money and one has nothing to
do with the other, but give us the fing money.
Tr. 2763, 2769. Petitioner responded, I think you just
say, look, its been a year. Lets just get this done, just
get it done. Christ. Tr. 2772.
At trial, however, Monk who by then had agreed
to testify for the Government in exchange for a lower
sentence on his own unrelated criminal charges
testified that it was his understand[ing] that
13
petitioner wanted him to deliver the message to
Johnston that they were in exchange for one another.
Tr. 2776. Johnston who was given immunity
testified that Monk told him that the Governor was
concerned that if he signs the racing legislation you
might not be forthcoming with a contribution.
Tr. 2989. Monk told Johnston that the contribution
was a different subject matter from the bill signing,
but Johnston said he did not believe him.
Tr. 2989-91, 3032.
On December 4, 2008, even though Johnston had
not yet fulfilled his pledge, petitioner told Monk in a
recorded call that he would sign the bill next week.
Tr. 2787-89. Less than a week later, on December 9,
petitioner was arrested before signing the bill.
Tr. 2993.
C. The Alleged Scheme Regarding
President Obamas Vacant Senate Seat
After Senator Barack Obama was elected
president, petitioner had the authority to appoint
Obamas successor in the Senate. Tr. 1305. The
Government alleged that petitioner proposed to
appoint the Presidents preferred candidate in
exchange for being made head of the Department of
Health and Human Services. That conviction,
however, was reversed on appeal and is no longer at
issue. Pet. App. 12a-18a.
The Government also alleged that petitioner
discussed with his advisors the possibility of asking
the President-elect and a prominent member of
Congress to use their influence to set up a not-for-
profit organization focused on childrens healthcare
that petitioner would lead after he left office. Tr. 1514,
14
1739-49, 1836, 1909-11. No steps were ever taken to
carry out any such plan.
Finally, the Government alleged that petitioner
attempted to obtain $1.5 million in campaign
contributions in exchange for appointing U.S.
Congressman Jesse Jackson, Jr. Pet. App. 9a;
Tr. 2064. In October 2008, a supporter of both the
Governor and Jackson approached Robert Blagojevich
with an offer that Jackson supporters would raise
funds for petitioners campaign in exchange for the
appointment of Jackson to the Senate. Tr. 2037, 2039.
On October 31, 2008, petitioner told his deputy about
the overture from Jacksons camp. Tr. 2109-10.
Two months later, petitioners pollster advised
the Governor that Jackson was polling better than any
of the other prospective candidates for the Senate seat.
Tr. 2112-13. Later that day, petitioner told his Chief
of Staff that he was honestly going to objectively look
at the value of putting Jesse, Jr. there. Tr. 1604. Also
later that day, petitioner told his brother to meet with
a Jackson supporter and tell him that Jackson was
very much . . . realistic . . . . And the other point, you
know, all these promises of help, thats all well and
good, but hes had an experience with Jesse and Jesse
promised to endorse him for governor and lied to him,
okay . . . . [T]hen some of this stuffs got to start
happening now. Tr. 4533, 4537-38.
Whether petitioner was willing to agree to an
actual quid pro quo, or only intended to lead the
donors into believing he might appoint Jackson in the
hopes of securing their donations, presumably would
have become clear at a future meeting with Jacksons
supporters. But the Government arrested petitioner
before such a meeting could take place. In the end,
15
petitioner did not appoint Jackson, and Jacksons
supporters contributed only $5,000 to petitioners
campaign. Tr. 2061-62.
III. Procedural Background
A. The Trials, Conviction, And Sentencing
Petitioner was charged with attempting and
conspiring to commit extortion under the Hobbs Act,2
soliciting and conspiring to accept a bribe,3 engaging
in honest services wire fraud, 4 and making a false
statement to the FBI.5 Pet. App. 9a-10a. At an initial
jury trial, petitioner was convicted of making a false
statement to investigators, but the jury failed to reach
a verdict on the remaining charges.
At the retrial, petitioner asked the court to
instruct the jury, consistent with McCormick, that
[i]n order for [campaign] contributions to
constitute extortion, bribery or wire fraud,
the government must prove that the
payments are made in return for an explicit
promise or undertaking by the official to
perform or not to perform an official act.
Dist. Ct. Doc. 715, at 38 (May 23, 2011) (emphasis
added). 6 The court instead issued an instruction
2
18 U.S.C. 2, 1951.
3
18 U.S.C. 371, 666(a)(1)(B).
4
18 U.S.C. 1343, 1346.
5
18 U.S.C. 1001.
6
Because extortion under color of official right and bribery
are really different sides of the same coin, United States v. Allen,
10 F.3d 405, 411 (7th Cir. 1993), and because honest services
16
drawn from the Seventh Circuits pattern jury
instructions and modeled on the statement in Evans
discussed supra, at 9:
if an official receives or attempts to obtain
money or property believing that it would be
given in exchange for specific requested
exercise of his official power, he has
committed extortion under color of official
right even if the money or property is to be
given to the official in the form of a campaign
contribution.
Pet. App. 49a (emphasis added); see also id. at 45a (It
is sufficient that the public official knew that the thing
of value was offered with the intent to exchange the
thing of value for the performance of an official act.);
compare Pattern Criminal Jury Instructions of the
Seventh Circuit 494 (2012 ed.).7 The jury convicted.
Pet. App. 7a.
At sentencing, petitioner argued, among other
things, that the lengthy sentence the Government
proposed would result in an unwarranted sentencing
disparity, given the much more lenient sentences
given other public officials charged with similar, if not
more serious, misconduct. See Dist. Ct. Doc. 865, at
8
The court also stated in a passing parenthetical that the
jury was entitled to conclude that any campaign donation would
be for [Blagojevichs] personal benefit rather than a campaign
because petitioner had decided not to run for a third term as
governor. Pet. App. 9a. But the Government never asked the
jury to make such a finding, perhaps recognizing that Illinois law
strictly forbade expenditure of campaign funds for personal use,
10 ILL. COMP. STAT. 5/9-8.10, even after leaving office, 10 ILL.
COMP. STAT. 5/9-5. Instead, state law permits politicians to spend
unused campaign funds for other political purposes. Ibid.
19
Petitioner again argued, among other things, that the
168-month sentence was unprecedented in
comparison to those handed down in other corruption
cases. Dist. Ct. Doc. 1233, at 15 (July 11, 2016); Dist.
Ct. Doc. 1255, at 9-10 (Aug. 9, 2016). The court
reinstated the prior sentence, while again failing to
address petitioners sentencing disparity argument.
Pet. App. 75a-83a.
D. Second Appeal
Petitioner appealed again, objecting among other
things to the district courts failure to address his
sentencing disparity argument. Pet. App. 2a-3a. The
Seventh Circuit affirmed. Id. at 6a. Because the judge
gave a sentence within the revised Guidelines range,
and because the Sentencing Guidelines are
themselves an anti-disparity formula, the court
concluded that the district court therefore did not
need to discuss 3553(a)(6) separately. Id. at 4a-6a;
see also, e.g., United States v. Annoreno, 713 F.3d 352,
359 (7th Cir. 2013) (district court did not err in failing
to address disparity argument because challenges
that a within-range sentence is disparate [are]
pointless.) (citation omitted).
The Seventh Circuit subsequently denied
petitioners petition for rehearing and rehearing en
banc. Pet. App. 31a-32a.
20
REASONS FOR GRANTING THE WRIT
I. Certiorari Is Warranted To Resolve The
Longstanding Circuit Conflict Over The
Appropriate Quid Pro Quo Standard In
Campaign Contribution Cases.
Numerous courts have observed that [e]xactly
what effect Evans had on McCormick is not altogether
clear. United States v. Blandford, 33 F.3d 685, 695
(6th Cir. 1994); see also, e.g., United States v. Giles,
246 F.3d 966, 971-72 (7th Cir. 2001) (noting that not
all courts of appeals that have considered the issue
have found the Evans holding entirely clear);
McGregor, 879 F. Supp. 2d at 1316-17 (Thompson, J.)
(observing there is considerable debate over
McCormick and Evans, and the Circuit Courts of
Appeals have struggled with these questions). That
ambiguity in this Courts decisions has led to the
circuit conflict at the center of this case.
A. The Circuits Are Divided 5-3.
The majority of circuits to have considered the
question treat McCormick as setting the standard for
campaign contribution cases and Evans as
establishing a lesser standard for other contexts.
Other circuits agree that Evans establishes a lesser
standard, permitting conviction upon proof of a merely
implicit agreement. But they hold that Evans
established a replacement for the McCormick test,
applicable to all cases, including campaign donation
prosecutions.
1. The Majority Position
Second Circuit. As then-Judge Sotomayor once
explained, the Second Circuit harmonized
21
McCormick and Evans in United States v. Garcia, 992
F.2d 409 (2d Cir. 1993). United States v. Ganim, 510
F.3d 134, 143 (2d Cir. 2007) (Sotomayor, J.). In
Garcia, the Second Circuit held:
Although the McCormick Court had ruled
that extortion under color of official right in
circumstances involving campaign
contributions occurs only if the payments are
made in return for an explicit promise or
undertaking by the official to perform or not
to perform an official act, Evans modified
this standard in non-campaign contribution
cases by requiring that the government show
only that a public official has obtained a
payment to which he was not entitled,
knowing that the payment was made in
return for official acts.
992 F.3d at 414 (emphasis added) (internal citations
omitted).
Accordingly, in the Second Circuit proof of an
express promise is necessary when the payments are
made in the form of campaign contributions. Ganim,
510 F.3d at 142 (emphasis added). In the non-
campaign context, however, the necessary
agreement may be implied from the officials words
and actions. Id. at 143 (citing Garcia, 992 F.3d at 414,
in turn citing Evans, 504 U.S. at 274 (Kennedy, J.,
concurring)) (emphasis added).
Third Circuit. The Third Circuit draws the
same distinction. In United States v. Salahuddin, 765
F.3d 329 (3d Cir. 2014), that court explained that an
explicit quid pro quo is required for extortion based
upon campaign contributions, id. at 343 n.9, but that
22
the court had previously rejected attempts to require
an explicit quid pro quo arrangement outside of the
campaign contribution context, id. at 343 (citing
United States v. Bradley, 173 F.3d 225, 232 (3d Cir.
1999)).
The Third Circuit therefore approved the district
courts distinction between the two contexts in its jury
instructions. To convict the defendant for accepting
campaign donations, the district court required the
jury to find that the defendant had accepted a
political contribution knowing that it is given in
exchange for an explicit promise or understanding by
the official to perform or not to perform a specific
official act or course of official action. Salahuddin,
765 F.3d at 343 n.9 (emphasis added) (internal
quotation marks omitted). The instructions regarding
other bribes properly omitted the requirement of an
explicit promise or undertaking, the Third Circuit
explained, because in that context the Government
need only show that a public official has obtained a
payment to which he was not entitled, knowing that
the payment was made in return for official acts. Id.
at 344 (quoting Evans, 504 U.S. at 268).
Fourth Circuit. In United States v. Taylor, 993
F.2d 382 (4th Cir. 1993), the Fourth Circuit reversed
the conviction of a public official charged with
extortion for accepting what he claimed to be
campaign contributions. Id. at 382-83. The Fourth
Circuit explained that McCormick and Evans
establish two different tests applicable to two different
situations:
It is necessary for the prosecution to prove
under the Evans standard that a public
official has obtained a payment to which he is
23
not entitled, knowing that the payment was
made in return for official acts. Or, if the jury
finds the payment to be a campaign
contribution, then, under McCormick, it must
find that the payments are made in return
for an explicit promise or undertaking by the
official to perform or not to perform an official
act.
Id. at 385 (emphasis added) (internal citations
omitted).
Ninth Circuit. The Ninth Circuit has similarly
embraced the distinction between the explicit
agreement required under McCormick for campaign
contribution bribery and the implicit agreement that
is sufficient under Evans in other contexts.
In United States v. Kincaid-Chauncey, 556 F.3d
923 (9th Cir. 2009), Judge Bybee explained that it is
well established that to convict a public official of
Hobbs Act extortion for receipt of property other than
campaign contributions, the Evans standard applied
and an explicit quid pro quo is not required; an
agreement implied from the officials words and
actions is sufficient to satisfy this element. Id. at 937
(emphasis added). The court thus approved the
district courts instruction in the case before it, which
provided:
In the case of a public official who obtains
money, other than a campaign contribution,
the Government does not have to prove an
explicit promise to perform a particular act
made at the time of the payment. Rather, it
is sufficient if the public official understands
that he or she is expected as a result of the
24
payment to exercise particular kinds of
influence as specific opportunities arise.
Ibid. (emphasis added).
In contrast, in United States v. Inzunza, 638 F.3d
1006 (9th Cir. 2011), a campaign contribution case, the
Ninth Circuit reaffirmed that what McCormick
requires is that the quid pro quo be clear and
unambiguous, leaving no uncertainty about the terms
of the bargain. Id. at 1013 (quoting United States v.
Carpenter, 961 F.2d 824, 827 (9th Cir. 1992))
(emphasis added). This explicitness requirement,
the court explained, serves to distinguish between
contributions that are given or received with the
anticipation of official action and contributions that
are given or received in exchange for a promise of
official action. Ibid.
D.C. Circuit. Finally, in United States v. Ring,
706 F.3d 460 (D.C. Cir. 2013), the D.C. Circuit rejected
the argument that an explicit quid pro quo is required
outside the [campaign] contribution context. Id. at
466. Writing for the court, Judge Tatel explained that
in McCormick this Court held that making campaign
contributions can constitute criminal extortion under
the Hobbs Act only when made pursuant to an explicit
quid pro quo agreement. Id. at 465. But the court
reasoned that whereas soliciting campaign
contributions may be practically unavoidable and
may implicate First Amendment speech and petition
rights, other forms of bribery do not. Id. at 466
(citation omitted). In the latter context, the court held
that the district court appropriately instructed the
jury that it was enough that a non-campaign gift was
conditioned . . . upon the recipients express or
25
implied agreement to act favorably to the donor. Id.
at 468 (emphasis added) (citation omitted).
2. The Minority Position Of The Sixth,
Seventh, And Eleventh Circuits
In conflict with the majority view, the Sixth,
Seventh, and Eleventh Circuits have held that there is
a single quid pro quo standard and that under it, the
Government never needs to prove an explicit promise
or undertaking, even in campaign donation cases.
Sixth Circuit. In United States v. Blandford, the
Sixth Circuit recognized that other circuits have
concluded that Evans establishes a modified or
relaxed quid pro quo standard to be applied in non-
campaign contributions cases, in contrast to the
comparatively strict standard of McCormick [that]
still would govern when the alleged Hobbs Act
violation arises out of the receipt of campaign
contributions by a public official. 33 F.3d at 695.
However, the court went on, [w]e read Evans
somewhat differently. Id. at 696. Evans, we believe,
merely clarified . . . that the quid pro quo of
McCormick is satisfied by something short of a
formalized and thoroughly articulated contractual
arrangement. Ibid. In particular, the Sixth Circuit
read Evans to direct that in any Hobbs Act case,
merely knowing [that] the payment was made in
return for official acts is enough. Ibid.; see also id. at
697 (standard in campaign cases is McCormick [as]
informed by Evans).
Seventh Circuit. The Seventh Circuit embraced
the same position in this case. The court rejected
petitioners argument that extortion can violate the
Hobbs Act only if a quid pro quo is demanded
26
explicitly. Pet. App. 18a. And it affirmed the district
courts decision to use the Circuits pattern jury
instructions, which are based on Evans. See id. at 19a-
21a; Pattern Criminal Jury Instructions, supra, at
494; see also id. at 495 (Committee Comment stating
that the quid pro quo can be implied).
That decision was consistent with United States v.
Giles, in which the Seventh Circuit likewise upheld
Evans-based instructions tracking the Circuits model
jury charge, where the defendant was accused of
extorting money for his campaign and himself. See
246 F.3d at 969-70, 971-72.
Eleventh Circuit. In United States v. Siegelman,
640 F.3d 1159 (11th Cir. 2011) (per curiam), the
Eleventh Circuit considered the conviction of an
official who allegedly accepted campaign contributions
in exchange for political favors. The court
acknowledged McCormicks requirement of an explicit
quid pro quo in campaign donation cases. Id. at 1169-
70. But relying on Justice Kennedys concurrence in
Evans, the court nonetheless held that the required
agreement may be implied from [the officials] words
and actions. Id. at 1172 (quoting Evans, 504 U.S. at
274 (Kennedy, J., concurring)) (alteration in original)
(emphasis added).
B. The First Question Presented Is
Recurring And Important.
The breadth and duration of the circuit conflict
demonstrates that the first Question Presented is
frequently recurring. Moreover, the location of the
line between lawful campaign solicitation and felony
extortion is a question of undeniable practical
importance to candidates throughout the country.
27
See, e.g., McDonnell v. United States, 136 S. Ct. 2355,
2372-73 (2016); McCormick, 500 U.S. at 272.
The present uncertainty also implicates
constitutional concerns of the highest order. Seeking
and making campaign donations implicates
fundamental First Amendment rights. See, e.g.,
McCutcheon v. FEC, 134 S. Ct. 1434, 1444, 1448 (2014)
(plurality opinion). At the same time, using a federal
criminal statute to regulate state campaign finance
displacing state law and the supervision provided
by the People themselves through the ballot box
raises significant federalism concerns. McDonnell,
136 S. Ct. at 2373. Candidates and donors also have a
Due Process right to know with some certainty what
the criminal law requires of them. See, e.g., id. at
2372-73. And the lack of clarity about the correct
interpretation of an already vague law provides fertile
ground for abuse of prosecutorial power.
All of these constitutional values are at risk when
courts, politicians, and donors are uncertain about
what is permitted and what is criminal. Indeed, this
Court required proof of an explicit promise or
undertaking in McCormick precisely to ensure the
line is drawn with sufficient clarity in the campaign
contribution context. 500 U.S. at 273. The present
conflict over whether, and when, that requirement
still applies intolerably undermines the clarity this
Court sought to provide.
C. The Seventh Circuits Decision Is Wrong.
Certiorari is further warranted because the
Seventh Circuits decision is wrong.
This Court was right in McCormick to require an
explicit promise or undertaking before making a
28
federal criminal case out of a politicians solicitation of
campaign funds from a constituent who may hope or
expect the donation to influence official acts. That is
the only way to ensure that the Hobbs Act reaches the
public official who asserts that his official conduct will
be controlled by the terms of the promise or
undertaking, without casting a chill on ordinary
fundraising, in which candidates seek donations from
those they expect to be supportive of their agenda
without explicitly promising that the donation will
control their official conduct. McCormick, 500 U.S. at
273.
To say that this promise must be explicit is not
to say that it must be express. Contra Pet. App. 18a-
19a. But an explicit promise must be unambiguous in
its essential terms, particularly with respect to the
defendants agreement to engage in an official act in
return for the donation. See, e.g., BLACKS LAW
DICTIONARY 401 (6th ed. abr. 1991) (defining explicit
as [n]ot obscure or ambiguous, having no disguised
meaning or reservation). An explicit quid pro quo
thus is not satisfied simply because the one party had
some specific official action in mind. It requires that
both parties have agreed to an exchange under which
the official act is unambiguously contingent on the
donation.
When there is no express agreement when a jury
is asked to read between the lines and decide what the
candidate and donor really meant it is especially
important that the jury be instructed that it must find
an unambiguous agreement. Here, for example,
prosecutors claim that petitioner intended to extort
campaign contributions from racetrack executive
Johnston depended on Johnstons testimony about
29
what he believed an intermediary really meant, in
conveying what that intermediary took petitioner
really to mean by statements that, on their face, did
not make approval of the pending legislation
contingent on payment of the campaign pledge. See
supra, at 12-13.
It is all too easy to cast entirely lawful interactions
as having an illegal subtext, particularly when jurors
may find the reality of campaign fundraising
distasteful or the defendant is politically unpopular.
An official may say to a donor, Ive been very
supportive of your industry and expect we will see eye-
to-eye on many legislative issues in the future. I would
appreciate your support as well. Did she really mean
I need a donation or I will hold back on further
support for your agenda? Or a donor may say, Id be
happy to raise money for you, given that we seem to
have the same philosophy when it comes to supporting
our industry. I hope that continues in the next
legislative session when our bill comes up. Is the
donor proposing an illegal quid pro quo? If the official
accepts the donation, is he agreeing to it?
The risk of misinterpretation is increased
exponentially in cases like this one, when the
Government does not wait for the consummation of an
exchange, but instead charges the defendant with
attempting or conspiring to reach an illegal quid pro
quo agreement. The jury is required to extrapolate
from a defendants preliminary, sometimes off-hand,
statements about what he would eventually agree to if
the discussions had proceeded further. When the line
between legal fundraising and illegal extortion lies in
the precise details of what would have been negotiated
i.e., whether the defendant would have promised to
30
engage in an official act, or merely allowed the donor
to believe that favorable action was likely requiring
proof of an explicit quid pro quo is necessary to avoid
cast[ing] a pall of potential prosecution over common
fundraising interactions. McDonnell, 136 S. Ct. at
2372.
The possibility that innocent statements and
interactions can be misconstrued as implicit
solicitations for an illegal quid pro quo also gives
enormous power to federal prosecutors, a power that
may in actuality or public perception be exercised
on the basis of political hostility or for partisan
advantage.
The standard drawn from Evans comes nowhere
near requiring the degree of explicitness demanded by
McCormick and needed to avoid impinging on
important constitutional rights. It permits conviction
based on the defendants awareness that a donor
believes he is making a contribution in return for an
official act, without requiring the jury to ask whether
the defendant, in fact, agreed to that deal. In this way,
the Evans-based instruction given in this case and
many others is hardly any different from the
instruction this Court held inadequate in McCormick
itself. Compare supra, at 7 (McCormick instruction),
with supra, at 16 (instruction in this case); contra Pet.
App. 18a (Seventh Circuit claiming that instructions
track McCormick).
The sentence in Evans upon which the Seventh
Circuit and other courts have based their jury
instructions was never intended to modify or supplant
the explicit promise or undertaking test from
McCormick. Instead, it simply summarized the
Courts rejection of Evans argument that McCormick
31
required proof that the defendant had fulfilled, or
taken affirmative steps toward fulfilling, his promise.
The Court explained that no steps toward fulfillment
were required because the offense was completed upon
acceptance of the contribution, so long as the other
quid pro quo requirements were met. See Evans, 504
U.S. at 268. The Court then paraphrased those other
requirements in words that did not repeat the
McCormick test verbatim. But the imprecision of that
paraphrase has no significance this Court does not
modify prior precedent in such a casual, off-handed
way, particularly when the issue is not before it.
II. Certiorari Is Warranted To Resolve A
Circuit Conflict Over Whether District
Courts May Disregard Sentencing Disparity
Arguments When They Issue Within-
Guidelines Sentences.
Independently, this Court should grant certiorari
to decide whether a district court is categorically
excused from addressing a sentencing disparity
argument when it provides a within-Guidelines
sentence.
A. The Circuits Are Divided.
This recurring sentencing question has divided
the circuits.
1. The Majority View
The majority of circuits hold that a sentencing
court generally must address all nonfrivolous
sentencing factor arguments, without providing any
exception for sentencing disparity arguments or
within-Guidelines sentences. See, e.g., United States
v. Corsey, 723 F.3d 366, 377 (2d Cir. 2013) (per
32
curiam); United States v. Friedman, 658 F.3d 342, 362
(3d Cir. 2011); United States v. Lynn, 592 F.3d 572,
583-84 (4th Cir. 2010); United States v. Mondragon-
Santiago, 564 F.3d 357, 362-64 (5th Cir. 2009); United
States v. Trujillo, 713 F.3d 1003, 1010-11 (9th Cir.
2013); see also United States v. Bigley, 786 F.3d 11, 16
(D.C. Cir. 2015) (Brown, J., concurring) (A majority of
circuits require judges to address a defendants
nonfrivolous arguments for a sentence below the
advisory Sentencing Guideline range.) (collecting
cites).
At least two circuits have applied their general
rule to reverse courts that failed to address Section
3553(a)(6) arguments even though the resulting
sentence was within the Guidelines range.
Third Circuit. For example, in United States v.
Friedman, the Third Circuit explained that a district
court need not discuss and make findings as to each of
the 3553(a) factors if the record makes clear that the
court took the factors into account, but that when
one party raises a colorable argument about the
applicability of one of the factors, the court should
respond to that argument. 658 F.3d at 362 (citations
and alteration omitted). In the case before it, a
defendant who had received a Guidelines sentence
objected that the district court failed to address his
sentencing disparity argument in favor of a lower
sentence. Id. at 361-62. Finding that there was no
explicit discussion or indication in the record that it
was considered, the court held the sentence
procedurally unreasonable and remanded for a new
sentencing hearing. Id. at 363.
Fourth Circuit. The Fourth Circuit likewise
vacated a within-Guidelines sentence for failure to
33
address a sentencing disparity argument in United
States v. Lynn. The defendant complained that the
court failed to address his arguments regarding
several statutory sentencing factors, including Section
3553(a)(6). See 592 F.3d at 583. In vacating the
sentence, the Fourth Circuit explained that a district
court cannot presume that a within-Guidelines
sentence is reasonable. Id. at 584. Because there was
no indication that the district court considered the
defendants nonfrivolous arguments prior to
sentencing him, we must find error. Id. at 585; see
also, e.g., United States v. Slappy, 872 F.3d 202, 208
(4th Cir. 2017) (explaining that if a court rejects a
nonfrivolous sentencing factors argument, it must
explain why in a detailed-enough manner that this
Court can meaningfully consider the procedural
reasonableness of the . . . sentence imposed).
2. The Minority Position
Seventh Circuit. This case is emblematic of the
Seventh Circuits contrary rule. The court of appeals
did not dispute petitioners assertion that the district
judge did not address [his] contention, based on
18 U.S.C. 3553(a)(6), that a 168-month sentence
would produce an unwarranted disparity compared
with the sentences meted out to other persons
convicted of corruption in political office.
Pet. App. 4a. Instead, it affirmed the sentence solely
on the ground that the judge gave a sentence within
the revised Guidelines range . . . and therefore did not
need to discuss 3553(a)(6) separately. Id. at 5a. The
court explained that, in its view, the Sentencing
Guidelines are themselves an anti-disparity formula,
such that to base a sentence on a properly determined
Guideline range is to give adequate consideration to
34
the relationship between the defendants sentence and
those of other persons. Id. at 4a-5a.
The Seventh Circuit has applied this rule and
repeated its rationale in multiple cases, even going so
far as to say that [c]hallenging a within-range
sentence as disparate is a pointless exercise. United
State v. Chapman, 694 F.3d 908, 916 (7th Cir. 2012)
(per curiam) (citation omitted); see also United States
v. Martin, 718 F.3d 684, 688 (7th Cir. 2013) (per
curiam) (holding that district court did not err in
declining to address Martins argument that a below-
guidelines sentence would be necessary to avoid
unwarranted sentencing disparities because a
sentence within the Guidelines cannot be treated as
unreasonable in reference to [Section] 3553(a)(6))
(citation omitted); ibid. (disparity argument may
therefore be passed over in silence); Annoreno, 713
F.3d at 359 (district court did not err in failing to
address disparity argument because challenges that
a within-range sentence is disparate [are] pointless)
(citation omitted); United States v. Bartlett, 567 F.3d
901, 908 (7th Cir. 2009) (A sentence within a
Guideline range necessarily complies with
3553(a)(6).).
Tenth Circuit. The Tenth Circuit takes this rule
one step further, excusing the district court from
specifically addressing any sentencing factor
argument if it issues a within-Guidelines sentence.
In the Circuits seminal decision, then-judge
Gorsuch rejected a defendants argument that because
he raised a non-frivolous argument implicating the
18 U.S.C. 3553(a) sentencing factors . . . the district
court was required to address the argument. United
States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.
35
2007) (Gorsuch, J.) (citation omitted). The court
reasoned that when a judge issues a within-Guidelines
sentence, the plain language of the sentencing
statute requires only a general statement of the
reasons for [the courts] imposition of the particular
sentence, not a response to a defendants sentencing
factor arguments. Ibid. (citation omitted); see also id.
at 1202 (holding that a specific discussion of Section
3553(a) factors is not required for sentences falling
within the ranges suggested by the Guidelines).
Echoing the Seventh Circuits reasoning, the court
further pointed to the fact that the Guidelines
themselves seek, in some measure, to give meaning to
the considerations embodied in Section 3553(a). Id.
at 1200.
Although Ruiz-Terrazas was decided before Rita
v. United States, 551 U.S. 338 (2007), the Tenth
Circuit has continued to apply its precedent in more
recent cases. See United States v. Wireman, 849 F.3d
956, 963 (10th Cir. 2017) (reaffirming that when the
district court has imposed a sentence within the
Guidelines, our cases have noted that the district court
need not specifically address and reject each of the
defendants arguments for leniency so long as the
court somehow indicates that it considered . . . the
18 U.S.C. 3553(a) statutory factors) (citation and
alterations omitted); see also ibid. (reiterating
principle that a district court need not specifically
address and instead may functionally reject a
defendants arguments for leniency when it sentences
him within the Guidelines range); United States v.
Gantt, 679 F.3d 1240, 1248-49 (10th Cir. 2012)
(Indeed, one can say as a general rule that when a
court considers what the guideline sentence (or
36
sentencing range) is, it necessarily considers whether
there is a disparity between the defendants sentence
and the sentences imposed on others for the same
offense.) (citing Gall v. United States, 552 U.S. 38, 54
(2007)).
3. The Sixth Circuits Conflicting Decisions
There are cases in the Sixth Circuit emphatically
embracing both sides of the circuit conflict. Compare
United States v. Houston, 529 F.3d 743, 752 (6th Cir.
2008), with United States v. Wallace, 597 F.3d 794,
803-05 (6th Cir. 2010).
B. The Second Question Presented Is
Recurring And Important.
As then-Judge Gorsuch observed in Ruiz-
Terrazas, how much a court must say in response to a
defendants argument for a lower sentence is a
question that has become of recurring significance for
litigants and district courts alike in our jurisdiction.
477 F.3d at 1199. Trial courts sentence tens of
thousands of defendants each year, and disparity
arguments are common.
At the same time, the answer to the Question
Presented has real-world significance. Requiring a
sentencing court to both consider and address a
defendants argument for mitigation also can affect
outcomes. Bigley, 786 F.3d at 17 n.1 (Brown, J.,
concurring) (emphasis added) (citing Jennifer Niles
Coffin, Where Procedure Meets Substance: Making the
Most of the Need for Adequate Explanation in Federal
Sentencing, CHAMPION, Mar. 2012, at 36). In the study
Judge Brown cited, the author found that within-
Guidelines sentences reversed for failure to address an
argument were altered more than 60% of the time of
37
remand, usually to reduce the sentence, sometimes
dramatically.9
C. The Seventh Circuits Rule Is Wrong.
The Seventh Circuits categorical rule is also
irreconcilable with the text of the sentencing statute
and this Courts decisions.
Section 3553(a) unambiguously requires that in
every case, the sentencing court shall consider
various factors, including the need to avoid
unwarranted sentence disparities among defendants
with similar records who have been found guilty of
similar conduct. 18 U.S.C. 3553(a)(6) (emphasis
added). It provides no exception for within-Guidelines
sentences. Nor does this Courts admonition that
sentencing courts should address nonfrivolous
arguments countenance any categorical exceptions.
See Rita, 551 U.S. at 356, 357.
The Seventh Circuits observation that the
Guidelines were designed to minimize sentencing
disparities provides no support for its rule either. As
Rita explained, the Guidelines regime contemplates
that every case will involve a double determination
of how the statutory sentencing factors should apply
to a particular defendant. 551 U.S. at 347. The
Sentencing Commission is initially charged with
writing Guidelines that will carry out the[] . . .
3553(a) objectives. Id. at 348. But the statute then
9
Jennifer Niles Coffin, Where Procedure Meets Substance:
Making the Most of the Need for Adequate Explanation 18 (2016),
https://www.fd.org/sites/default/files/criminal_defense_topics/
essential_topics/sentencing_resources/where-procedure-meets-
substance-making-the-most-of-the-need-for-adequate-
explanation.pdf (updated version of study).
38
requires the judge also to consider all the sentencing
factors in Section 3553(a), including the need to avoid
unwarranted sentencing disparities. Id. at 347-48.
The second look by the sentencing court is intended to
allow that court to decide whether the Guidelines
sentence itself fails properly to reflect 3553(a)
considerations or the case warrants a different
sentence regardless. Id. at 351.
Given this leeway, a court cannot just assume that
a within-Guidelines sentence will avoid unwarranted
sentencing disparities. For example, a disparity could
arise because other courts regularly sentence similar
defendants outside the Guidelines. Or a sentencing
judge could permissibly conclude that the Guidelines
themselves could fail to capture the relevant
differences and similarities among defendants. Rita,
551 U.S. at 351.
This case is a perfect example. Petitioner
presented evidence that his within-Guidelines
sentence which was driven largely by the size of the
campaign contributions discussed and made no
distinction between campaign contributions and
payments for personal enrichment was at least twice
as long as sentences given to other public officials
convicted on federal corruption charges. See supra, at
17, 19. A sentencing court plainly has discretion to
alter its sentence in light of that disparity. See, e.g.,
Spears v. United States, 555 U.S. 261, 265 (2009)
(per curiam).
Finally, the Courts observation in Gall v. United
States, 552 U.S. 38 (2007), that the trial judge
necessarily gave significant weight and consideration
to avoid unwarranted disparities by calculating the
Guidelines range addressed a sentencing judges
39
explanatory obligation when no specific disparity
argument is raised. Id. at 54. The Court then went on
to address whether the judge adequately responded to
the Governments specific disparity arguments,
documenting the various steps the court took beyond
calculating the Guidelines range, id. at 54-55, none of
which would have been necessary under the Seventh
Circuits rule. See also ibid. (noting that [h]ad the
prosecutor raised the issue [of the seriousness of the
offense], specific discussion of the point might have
been in order).
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted.
Respectfully submitted,
Leonard C. Goodman Thomas C. Goldstein
53 W. Jackson Blvd. Kevin K. Russell
Suite 1650 Counsel of Record
Chicago, IL 60604 GOLDSTEIN &
RUSSELL, P.C.
J. Wells Dixon
7475 Wisconsin Ave.
Shayana D. Kadidal
Suite 850
DIXON KADIDAL LLP
Bethesda, MD 20814
43 W. 43d St.
(202) 362-0636
Suite 105
kr@goldsteinrussell.com
New York, NY 10036
November 2, 2017
APPENDIX
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
______________________
No. 16-3254
______________________
No. 11-3853
______________________
No. 16-3254
______________________
JUNE 5, 2017
______________________
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
Order
Defendant-appellant filed a petition for rehearing
and rehearing en banc on May 19, 2017. No judge in
regular active service has requested a vote on the
32a
petition for rehearing en banc,* and all of the judges on
the panel have voted to deny rehearing. The petition
for rehearing is therefore DENIED.
*
Judge Flaum did not participate in the consideration of this
petition.
33a
APPENDIX D
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA
v.
Rod Blagojevich
AMENDED JUDGMENT IN A CRIMINAL CASE
Case Number: 08cr888-1
USM Number: 40892-424
Leonard C. Goodman
Defendants Attorney
Date of Original Judgment: 12/7/2011
(Or Date of Last Amended Judgment)
Reason for Amendment:
Correction of Sentence on Remand (18 U.S.C.
3742(f)(1) and (2))
* * *
THE DEFENDANT:
* * *
* was found guilty on count(s) 3s, 7s-13s, 15s-18s
and 24s of the Second Superseding Indictment after a
plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Nature of Offense Offense Count
Section Ended
18 U.S.C. Wire Fraud Under Color 12/9/2008 3s, 7s-13s,
1343 of Official Right/ 15s-18s
Extortion Under Color
of Official Right
(Attempt/Conspiracy)/
Conspiracy to Solicit
and Solicitation of Bribe
34a
Title & Nature of Offense Offense Count
Section Ended
18 U.S.C. False Statements 12/9/2008 24s
1001
The defendant is sentenced as provided in pages 1
through 8 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
The defendant has been found not guilty on count(s)
20s
* Count(s) 1-13 & 16-19; 4s-6s, 14s, 19s, 21s-23s
dismissed on the motion of the United States.
It is ordered that the defendant must notify the
United States attorney for this district within 30 days
of any change of name, residence, or mailing address
until all fines, restitution, costs, and special
assessments imposed by this judgment are fully paid.
If ordered to pay restitution, the defendant must notify
the court and United States attorney of material
changes in economic circumstances.
8/9/2016
Date of Imposition of Judgment
/s
Signature of Judge
James B. Zagel, U.S. District Judge
Name and Title of Judge
Date 8/12/2016
35a
IMPRISONMENT
The defendant is hereby committed to the custody
of the United States Bureau of Prisons to be
imprisoned for a total term of:
*One hundred and sixty eight (168) months. Said term
consists of one hundred sixty eight (168) months on
Counts three (3s), seven through thirteen (7s-13s),
fifteen (15s) and seventeen (17s); sixty (60) months on
Counts sixteen (16s) and eighteen (18s); and thirty six
(36) months on Count twenty four (24s) to run
concurrently to each other for a total term of
imprisonment of one hundred and sixty eight (168)
months.
The court makes the following recommendations to
the Bureau of Prisons: Remain incarcerated at FCI
Englewood, CO. Continue participation in RDAP
while incarcerated.
* * *
MANDATORY CONDITIONS OF SUPERVISED
RELEASE PURSUANT TO 18 U.S.C 3583(d)
Upon release from imprisonment, you shall be on
supervised release for a term of:
*Two (2) years. Said term consists of two (2) years on
each of counts three (3s), seven (7s) through thirteen
(13s), fifteen (15s) through eighteen (18s) and twenty
four (24s) to run concurrently to each other for a total
term of supervised release of two (2) years.
You must report to the probation office in the
district to which you are released within 72 hours of
release from the custody of the Bureau of Prisons. The
court imposes those conditions identified by
checkmarks below:
36a
During the period of supervised release:
(1) you shall not commit another Federal, State, or
local crime.
(2) you shall not unlawfully possess a controlled
substance.
* * *
(5) you shall cooperate in the collection of a DNA
sample if the collection of such a sample is
required by law.
(6) you shall refrain from any unlawful use of a
controlled substance AND submit to one drug test
within 15 days of release on supervised release
and at least two periodic tests thereafter, up to 104
periodic tests for use of a controlled substance
during each year of supervised release. [This
mandatory condition may be ameliorated or
suspended by the court for any defendant if
reliable sentencing information indicates a low
risk of future substance abuse by the defendant.]
DISCRETIONARY CONDITIONS OF
SUPERVISED RELEASE PURSUANT TO
18 U.S.C 3563(b) AND 18 U.S.C 3583(d)
Discretionary Conditions The court orders that
you abide by the following conditions during the term
of supervised release because such conditions are
reasonably related to the factors set forth in
3553(a)(1) and (a)(2)(B), (C), and (D); such
conditions involve only such deprivations of liberty or
property as are reasonably necessary for the purposes
indicated in 3553(a)(2)(B), (C), and (D); and such
conditions are consistent with any pertinent policy
37a
statement issued by the Sentencing Commission
pursuant to 28 U.S.C. 994a.
The court imposes those conditions identified by
checkmarks below:
During the period of supervised release:
(1) you shall provide financial support to any
dependents if financially able.
* * *
(4) you shall seek, and work conscientiously at,
lawful employment or pursue conscientiously a
course of study or vocational training that will
equip you for employment.
* * *
(6) you shall refrain from knowingly meeting or
communicating with any person whom you know
to be engaged, or planning to be engaged, in
criminal activity and from:
visiting the following type of places:
knowingly meeting or communicating with
the following persons:
(7) you shall refrain from any or excessive use
of alcohol (defined as having a blood alcohol
concentration greater than 0.08; or ), or any
use of a narcotic drug or other controlled
substance, as defined in 102 of the Controlled
Substances Act (21 U.S.C. 802) without a
prescription by a licensed medical practitioner.
(8) you shall refrain from possessing a firearm,
destructive device, or other dangerous weapon.
* * *
38a
(14) you shall remain within the jurisdiction where
you are being supervised, unless granted
permission to leave by the court or a probation
officer.
(15) you shall report to a probation officer as
directed by the court or a probation officer.
(16) you shall permit a probation officer to visit
you at any reasonable time or as specified:
at home at work at school
at a community service location
other reasonable location specified by a
probation officer
you shall permit confiscation of any contraband
observed in plain view of the probation officer.
(17) you shall notify a probation officer promptly,
within 72 hours, of any change in residence,
employer, or workplace and, absent constitutional
or other legal privilege, answer inquiries by a
probation officer.
(18) you shall notify a probation officer promptly,
within 72 hours, if arrested or questioned by a law
enforcement officer.
* * *
(22) you shall satisfy such other special conditions
as ordered below.
* * *
SPECIAL CONDITIONS OF SUPERVISED
RELEASE PURSUANT TO 18 U.S.C. 3563(b)(22)
and 3583(d)
The court imposes those conditions identified by
checkmarks below:
39a
During the term of supervised release:
* * *
(3) you shall, if unemployed after the first 60 days
of supervision, or if unemployed for 60 days after
termination or layoff from employment, perform at
least 20 hours of community service per week at
the direction of the U.S. Probation Office until
gainfully employed. The amount of community
service shall not exceed 200 hours.
* * *
(11) you shall not enter into any agreement to act
as an informer or special agent of a law
enforcement agency without the permission of the
court.
* * *
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary
penalties under the schedule of payments on Sheet 6.
Assessment Fine Restitution
Totals $*1300.00 $20,000.00 $
* * *
The court determined that the defendant does not
have the ability to pay interest and it is ordered
that:
the interest requirement is waived for the
fine.
the interest requirement for the is
modified as follows:
VOLUME 30
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES B. ZAGEL
AND A JURY
* * *
[5524]
* * *
INSTRUCTIONS TO THE JURY
BY THE COURT: Im now going to read the
instructions to you. Dont bother to take notes unless
you feel some compulsion to write them down, because
youll have a book.
Members of the jury, you have seen and heard all
the evidence and the arguments of the attorneys, now
I will instruct you on the law.
And some of these instructions you heard before
because I gave them to you in the beginning, but most
of them you havent.
42a
You have two duties as a jury. Your first duty is
to decide the facts from the evidence in this case, this
is your job and yours alone.
Your second duty is to apply the law that I give
you to the facts. You must follow these instructions
even if you disagree with them. Each of these
instructions is important and you must
* * *
[5535] person must knowingly associate with the
criminal activity, participate in the activity, and try to
make it succeed.
If the defendant knowingly caused the acts or
omissions of another, the defendant is responsible for
those acts as though he personally committed them.
The law allowed the government to use various
deceptive and disguised investigative techniques,
including covert or hidden wiretaps. These are
permissible and recognized means of criminal
investigation. Any opinions you may hold regarding
the use of investigative techniques to detect unlawful
activities are not to enter into your deliberations in
any way.
The next series of instructions basically define the
offense and what it is that must be proved.
Counts 1 through 10 of the indictment charge the
defendant with wire fraud.
To sustain the charge of wire fraud as charged in
Counts 1 through 10 the government must prove the
following propositions beyond a reasonable doubt:
First, that the defendant knowingly devised
[5536] or participated in a scheme to defraud the
public of its right to the honest services of Rod
43a
Blagojevich or John Harris by demanding, soliciting,
seeking, asking for, or agreeing to accept a bribe in the
manner described in the particular count you are
considering;
Second, that the defendant did so with the intent
to defraud;
Third, that the scheme to defraud involved a
materially false and fraudulent pretense,
representation, promise or concealment;
And fourth, that for the purpose of carrying out
the scheme, or attempting to do so, the defendant used
or caused the use of interstate wire communications to
take place in the manner charged in the particular
count you are considering.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, you should find the
defendant guilty of the particular count you are
considering.
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, you should find the defendant not guilty of
[5537] the particular count you are considering.
A scheme, a scheme is a plan or course of action
formed with the intent to accomplish some purpose.
A scheme to defraud is a scheme that is intended
to deceive or cheat the public in order to deprive the
public of the intangible right to honest services
through bribery. A public official owes a duty of
honesty and loyalty to act only in the publics interest.
44a
In considering whether the government has
proven a scheme to defraud it is essential that one or
more of the acts charged in the portions of the
indictment describing the scheme be proved
establishing the existence of the scheme beyond a
reasonable doubt. The government, however, is not
required to prove all of them.
As officials and employees of the State of Illinois,
Rod Blagojevich and John Harris were public officials
who owed a duty of honest services to the People of the
State of Illinois.
A public official commits bribery when he directly
or indirectly demands, solicits, seeks, or asks for, or
agrees to accept something of value from another
person in exchange for a promise for or [5538]
performance of an official act. The proposed exchange
may be communicated in any manner and need not be
communicated in any specific or particular words so
long as the public official intends to seek or accept
something of value in exchange for a specific official
act.
The term something of value includes money,
property, and prospective employment.
An official act is any decision or action on any
question which may at any time be pending before the
public official in his official capacity or in his position
of trust. It is not necessary that the exchange or
proposed exchange be communicated in expressed
terms. It is not necessary that the public official have
the power to or did perform the act for which he was
promised or which he agreed to receive something of
value. It is sufficient if the matter was one that was
before him in his official capacity. Nor is it necessary
45a
that the public official, in fact, intended to perform the
specific official act. It is sufficient that the public
official knew that the thing of value was offered with
the intent to exchange the thing of value for the
performance of an official act.
A public officials demanding, soliciting, [5539]
seeking or asking for, directly or indirectly, or agreeing
to accept a campaign contribution, by itself, does not
constitute bribery, even if the person making the
contribution has business pending before the official.
It is not enough that the contributor is making the
contribution to create good will or with the vague
expectation of help in the future; however, if a public
official demands, solicits, seeks or asks for directly or
indirectly, or agrees to accept money or property
believing that it would be given in exchange for a
specific requested exercise of his official power, he has
committed bribery even if the money or property is to
be given to the official in the farm of a campaign
contribution.
A scheme to defraud must involve the material
misrepresentation, false statement, false pretense, or
concealment of fact.
A misrepresentation, false statement, false
pretense, or concealment is material if it has a natural
tendency to influence or is capable of influencing a
decision or action of the public.
It is not necessary that the misrepresentation,
false statement, false pretense, [5540] or concealment
actually have that influence or be relied on by the
public so long as it had the potential or capability to do
so.
46a
A person acts with the intent to defraud if he acts
knowingly with the intent to deceive, or cheat the
public in order to deprive the public of the publics
officials honest services through bribery.
In order to prove a scheme to defraud, the
government does not have to prove that the defendant
contemplated actual or foreseeable financial loss to the
victim of a scheme.
The wire fraud statute can be violated whether or
not there is any actual financial loss or damage to the
victim of a crime or actual financial gain to the
defendant. The government need not prove that the
scheme to defraud actually succeeded.
The government must prove that interstate
communication facilities were used to carry out the
scheme or were an incident to an essential part of the
scheme. In order to use or cause the use of an
interstate wire communication the defendant need not
actually intend that use to take place, you must find
that the defendant knew that this use would actually
occur or that the defendant knew it would [5541] occur
in the ordinary course of business or that the
defendant knew facts from which that use could
reasonably have been foreseen.
The government does not have to prove that the
defendant knew that the wire communication was of
an interstate nature.
Although an interstate communication need not
itself contain a demand, solicitation, or a request for a
bribe it must further or attempt to further the scheme.
Each separate use of interstate communications
facility in furtherance of a scheme defraud constitutes
a separate offense.
47a
A telephone call constitutes a transmission by
means of wire communication in interstate commerce
within the meaning of the wire fraud statute if the call
occurs across state lines.
For purposes of Counts 1 through 10, good faith
on the part of the defendant is inconsistent with the
intent to defraud which is an element of the charges.
In the context of this case, good faith means that
the defendant acted without intending to exchange
official actions for personal benefits.
The burden is not on the defendant to prove [5542]
his good faith; rather, the government must prove
beyond a reasonable doubt that the defendant acted
with the intent to defraud.
The government is not required to prove that the
defendant knew his acts were unlawful.
The next series of instructions deals with the
charged extortion, attempted extortion in this case.
The defendant is charged with attempted
extortion in Counts 11, 12, 16 and 19. To sustain the
charge of attempted extortion as charged in Counts 11,
12, 16 and 19 the government must prove the following
propositions:
First, that the defendant knowingly attempted to
obtain money or property from the person or entity
described in the particular count you are considering;
Second, that the defendant did so by means of
extortion under color of official right as that term is
defined in these instructions;
Third, that the defendant believed that the person
or entity described in the particular count you are
48a
considering would have parted with the money or
property because of the extortion;
Fourth, that the conduct of the defendant [5543]
would have affected or had the potential to affect
interstate commerce.
Again, if you find from your consideration of all
the evidence that each of these propositions has been
proved beyond a reasonable doubt, you should find the
defendant guilty of the particular count you are
considering.
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, you should find the defendant not guilty of the
particular count you are considering.
Extortion under color of official right occurs when
a public official receives or attempts to obtain money
or property to which he is not entitled believing that
the money or property would be given in return for the
taking, withholding, or other influencing of official
action.
Although the official must receive or attempt to
obtain the money or property, the government does not
have to prove that the public official first suggested
the giving of money or property or that the official
asked for or solicited it.
While the official must receive or attempt to
obtain the money or property in return for the [5544]
official action, the government does not have to prove
the official actually took or intended to take that action
or that the initially could have actually taken the
action in return for which payment was made or
49a
demanded or that the official would not have taken the
same action even without payment.
Acceptance by a public official of a campaign
contribution by itself does not constitute extortion
under color of official right even if the person making
the contribution has business pending before the
official. However, if an official receives or attempts to
obtain money or property believing that it would be
given in exchange for specific requested exercise of his
official power, he has committed extortion under color
of official right even if the money or property is to be
given to the official in the form of a campaign
contribution.
The term property as used in these instructions
includes any valuable right considered as a source of
wealth.
In order to prove attempted extortion or
conspiracy to commit extortion the government must
prove that the defendant attempted or conspired to
obtain property or money knowing or believing that
[5545] it would be given to him in return for the
taking, withholding, or other influencing of specific
official action.
The exchange or proposed exchange may be
communicated in any manner and need not be
communicated in any specific or particular words as
long as the public official intends to seek or accept the
money or property in return for the taking,
withholding, or other influencing of a specific act.
For the purposes of Counts 11, 12, 14, 16, 18 and
19, good faith on the part of the defendant is
inconsistent with intent to commit extortion, an
element of the charges. In the context of this case,
50a
good faith means that the defendant acted without
intending to exchange official actions for personal
financial benefits.
The burden is not on the defendant to prove his
good faith; rather, the government must prove beyond
a reasonable doubt that the defendant acted with
intent to commit extortion. The government is not
required to prove that the defendant knew his acts
were unlawful.
With respect to the attempted extortion counts,
the government must prove that the [5546]
defendants actions affected or had the potential to
affect interstate commerce in any way or degree. This
means that the natural consequences of the
defendants actions would have been to have some
effect on interstate commerce, however minimal, this
would include reducing the assets of a business that
customarily purchased its goods from outside the
State of Illinois or actually engaged in business
outside the State of Illinois, if those assets would have
been available to the business for the purchase of such
goods or the conducting of such business if not for the
defendants conduct.
It is not necessary for you to find that the
defendant knew or intended that his actions would
effect interstate commerce or that there would have
been any actual effect on interstate commerce.
The defendant is charged in Counts 14 and 18
with conspiracy, conspiracy to commit extortion.
To sustain the charge of conspiracy as charged in
those counts the government must prove the following
propositions:
51a
First, that the conspiracy as charged in the
particular count you are considering existed;
Second, that the defendant knowingly became a
member of the conspiracy with the intention to [5547]
further the conspiracy.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, you should find the
defendant guilty of the particular count you are
considering.
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, you should find the defendant not guilty of the
particular count you are considering.
A conspiracy is an agreement between two or
more persons to accomplish an unlawful purpose. A
conspiracy may be established even if its purpose is
not accomplished.
To establish the existence of the charged
conspiracy and its common purpose or purposes the
government need not establish that there existed a
formal agreement to conspire. The agreement may be
inferred from all of the circumstances and the conduct
of all the alleged participants. The conspiracy may be
proved by circumstantial evidence and reasonable
inferences drawn from that evidence concerning the
relationship of the parties and the totality of their
conduct.
[5548] The government need not prove that the
defendant participated in all of the events of the
conspiracy. The government must prove beyond a
52a
reasonable doubt that the defendant was aware of the
common purpose and was a willing participant.
In deciding whether the charged conspiracy
exists, you may consider the actions and statements of
every one of the alleged participants.
An agreement may be proved from all the
circumstances and the words and conduct of all the
alleged participants which are shown by the everyday.
In deciding whether the defendant joined the
charged conspiracy, you must base your decision only
on what the defendant did or said.
In determining what the defendant did or said,
you may consider the defendants own words or acts.
You may also consider the words and acts of other
persons to decide what that defendant did or said and
you may use them to help you understand what that
defendant did or said.
The last set of these instructions, other than some
final ones, concerns soliciting bribes. The defendant is
charged in Counts 13 and 17 with soliciting bribes.
[5549] To sustain the charge of soliciting bribes as
charged in Counts 13 and 17, the government must
prove the following propositions:
First, that the defendant Rod Blagojevich was an
agent of the State of Illinois;
Second, that the defendant solicited or demanded
anything of value from another person;
Third, that the defendant did so corruptly with
the intent to be influenced or rewarded in connection
with some business, some transaction, or series of
transactions of the State of Illinois;
53a
Fourth, that this business or transaction or series
of transactions involved anything of value $5,000 or
more;
And fifth, that the State of Illinois in any one year
received benefits of more than $10,000 under any
federal program involving a grant, contract subsidy,
loan guarantee, insurance, or other assistance.
This one-year period must begin no more than 12
months before the defendant committed these acts and
must end no more than 12 months afterwards.
This is true of all of offenses which have elements
or propositions that have to be proven.
If you find from your consideration of all [5550]
the evidence that each of these propositions has been
proved beyond a reasonable doubt as to particular
count, you should find the defendant guilty of that
count.
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt as to a particular count, you should find the
defendant not guilty of that count.
For purposes of Counts 13, 15, 17 and 20, a person
acts corruptly when that person acts with the
understanding that something of value is to be offered
or given to reward or influence him in connection with
his official duties.
A defendant may act corruptly even if hes only
partially motivated by the expectation or desire for
reward.
For the purpose of determining whether the
defendant was an agent of the State of Illinois as
54a
charged in the Counts 13, 15, 17 and 20, an agent of
the State of Illinois is a person, including an employee,
officer, or representative who is authorized to act on
behalf of the State of Illinois.
The term anything of value may include [5551]
campaign contributions and potential salaries from a
job.
A public official solicitation of campaign
contributions by itself does not constitute bribery even
if the person making the contribution has business
pending before the official.
It is not enough that the contributor making the
contribution create good will or with the vague
expectation of help in the future. However, if a public
official demands, seeks or asks for, directly or
indirectly, or agrees to accept money or property
believing it will be given in exchange for a specific
requested exercise of his official power, he has
committed bribery even if the money or property is to
be given to the official in the form of a campaign
contribution.
It is not necessary that the defendants
solicitation or demand for a thing of value in exchange
for influence or reward with respect to state business
be communicated in expressed terms. The proposed
exchange may be communicated in any manner and
need not be communicated in any specific or particular
words so long as the public official intends to solicit or
demand something of value in exchange for influence
or reward with respect to a [5552] specific item of state
business.
For purposes of 13, 15, 17 and 20, again, good faith
on the part of the defendant is inconsistent with
55a
having acted corruptly an element of the charges. In
the context of this case, good faith means that the
defendant acted without intending to exchange official
action for personal benefits. The burden is not on the
defendant to prove his good faith; rather, the
government must prove beyond a reasonable doubt
that the defendant acted with the requisite intent.
The government is not required to prove that the
defendant knew his acts were unlawful.
The defendant is charged in Counts 13, and 17
with conspiracy to solicit or accept bribes. A
conspiracyand Im repeating this as I do for each set
of offenses chargeda conspiracy is an agreement
between two or more persons to accomplish an
unlawful purpose.
A conspiracy may be established even if its
purpose is not accomplished.
To sustain the charge of conspiracy to solicit or
accept bribes as charged in Counts 13 and 17 the
government must prove the following propositions:
[5553] First, that the conspiracy as charged in the
particular count you are considering existed;
Second, that the defendant knowingly became a
member of the conspiracy with an intention to further
the conspiracy;
And third, that the overt act was committed by at
least one conspirator in furtherance of the conspiracy.
Again, if you find from your consideration of all
the evidence that each of these propositions has been
proved beyond a reasonable doubt as to a particular
count, you should find the defendant guilty of that
count.
56a
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt as to a particular count, you should find the
defendant not guilty of that count.
The government need not prove that the
defendant participated in all of the events of the
conspiracy, the government must prove beyond a
reasonable doubt that the defendant was aware of the
common purpose and was a willing participant.
It is not necessary that all the overt acts charged
in the conspiracy count of the indictment be [5554]
proved and the overt act proved may itself be a lawful
act. Moreover, you need not to agree unanimously on
which overt act the government has proved.
It is not necessary that all of the acts charged in
the conspiracy count be proved as long as the
government has proved the elements of the conspiracy
as I have described them to you beyond a reasonable
doubt.
The rest of these instructions are general
instructions of what happens next.
If you find the defendant guilty, it will then be my
job to decide what punishment should be imposed.
In considering the evidence and arguments that
have been given during the trial, you should not guess
about the punishment. It should not enter into your
consideration or discussions at any time.
You should not speculate why any other person
whose name you may have heard during the trial or
who is named in the indictment is not currently on
trial before you.
57a
Upon retiring to the jury room you will select one
of your numbers as your foreperson. Your foreperson
will preside over your deliberations and
* * *
58a
APPENDIX F
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF ) No. 08 CR 888
AMERICA, ) Chicago, Illinois
Government, )
December 7, 2011
vs. )
) 10:28 oclock a.m.
ROD BLAGOJEVICH,
)
Defendant.
)
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES B. ZAGEL
SENTENCING
* * *
[243] THE COURT: Please be seated in the
courtroom.
There are several things I have to say, some have
to do with some remaining legal matters. I intend to
speak them, and then the last thing I do is, Im going
to ask the defendant to rise and Im going to announce
the sentence.
One observation that was made in the very
beginning was about general deterrence. The instance
that was given to me by Ms. Gurland was that say if
the penalty for governmental corruption was 5 years
in prison, how many people out there would actually
engage in corruption if they knew that they were going
to spend 5 years in prison.
Probably very few. Some who might think 5 years
in prison is worth compiling a fortune that they can
59a
spend after their release, but not many. But the
example is a flawed example, because a 5-year price
for corruption is not inevitable.
Some are never caught. And then to cite a not so
hypothetical example, after they die, huge amounts of
cash are found in their closets. If you think youre not
going to get caught, you do it.
The problem with deterrence always is that you
have not only the price to be paid if you are [244]
caught, but the chances of your being caught. And
while economists know how to discount this
probability, we dont have reliable statistics on the
good way to do it. If you are a corrupt public official
and you are an optimist, theres a much better chance
youre going to do it than if youre a pessimist.
So the issue of who would trade 5 years in prison
to be corrupt is 10 to 20 years, whatever the figure is,
is not the question that we are supposed to ask.
A brief comment on the guidelines in this case.
The official guideline is 30 years to life, 360 months to
life. The government thinks that that guideline is
inappropriate. I agree.
The guideline they propose is 180 months to 240
months, which is, practically, the same as the one the
probation officer fixed, which is 188 months to 235
months. So Im regarding the 188 to 235 as the
effective guideline in this case.
I dont think that the defendant is going to object
to the proposition that they dont want to accept that
the governments opinion that it should be lower than
360 to life. They, of course, would like it to be a lot
lower than 188 to 235, but, on [245] that, I have not
sustained their position.
60a
There is an issue that has arisen in light of the
allocution, and that is whether the guideline should be
affected by application of acceptance of responsibility,
and the defendant did use the word acceptance of
responsibility.
The rule in the guidelines says, and I quote:
This adjustment is not intended to apply to a
defendant who puts the government to its
burden of proof at trial by denying the
essential factual elements of guilt if hes
convicted, and only then admits guilt and
expresses remorse . . . .
the general policy.
The note also goes on to say that:
. . . conviction by trial, however, does not
automatically preclude a defendant from
consideration for such a reduction. In rare
situations, a defendant may clearly
demonstrate acceptance of responsibility for
his criminal conduct even though he exercise
his Constitutional right to a trial . . . .
So the issue is is whether this case falls within two
categories: One, that what he did constitutes
acceptance of responsibility, and, two, [246] whether
or not it comes too late.
The first, and by far the single most important act
that constitutes acceptance of responsibility, is
truthfully admitting the conduct comprising the
offense of conviction.
And this presents, because the facts of this case,
an interesting point of judgment, because the vast
majority of facts in this case were not disputed.
61a
Its very difficult to dispute what was on the
recordings. And there was no contention that the
recordings had been tampered with. So, basically, the
only way the defendant could let me correct that.
The only way the defendant could deal with this, for
the most part, for the far greater part, is to say: Yes,
I said all of these things, Im not denying it, but I didnt
mean it. I didnt want these people to do what they
thought I meant. And, also that, to the extent I meant
it, I was maneuvered by my assistance, it was not
really my will.
So the crucial facts in this case are whether he
meant what did happen and whether the
responsibility is less his than those of people who were
around him.
[247] The second one, in many respects, is more
important because thats what acceptance of
responsibility means.
I believe that he did, in fact, accept the proposition
that what he asked these people to do was, in large
part, if not entirely, what they did. And its quite clear
that hes not blaming them for doing it.
So the first requisite of acceptance of
responsibility truthfully admitting the conduct that in
this particular case apprises the offenses of conviction,
the single exception of Count 24. That, however, does
not end the matter. There is one negative, and that is
one of the things that is a factor is voluntary
resignation from the office of the position held during
the commission of the offense, thats a negative on his
side.
The more important factor is is that it comes late.
And is there a reason for this not to bar his acceptance
62a
of responsibility? And, I think, in this particular case,
there is a reason, and that had to do with his position.
Its an awful Hill to climb as Governor to admit
this. And bear in mind, most acceptance of
responsibility issues arise in cases where theres [248]
absolutely no one in the courtroom and no one in the
public, as a whole, present, maybe some family
members, when the defendant makes an attempt to
accept responsibility. The world doesnt care. And in
a lot of those cases, I have noticed that frequently the
family doesnt show up because the person who is
accepting responsibility doesnt want to do it in front
of them.
And I think in this particular case, his particular
status as the Governor and an extremely well-known
public figure, made it so difficult for him to do so that
this rationally explains his delay in doing it.
The reason, incidentally, I am according him this
benefit from his holding the office of Governor is
because, in some respects, his holding the office of
Governor, in fact in many respects, holding the office
of Governor is responsible for some of the things Im
going to say and for the sentence I will ultimately
impose, because abuse of the office of Governor, as I
will mention briefly, is more damaging than the abuse
of any other office in the United States except
president.
So I am giving him the 2 points for acceptance of
responsibility, which means that, for [249] my
purposes, the effective guideline is 151 months to 188
months.
Having said that, I have some comments on the
defense position. There was a persistent reference to
63a
statements made to the defendant from which during
trial he claimed he could infer that his acts were not
illegal.
And as I said before, he did manage to present this
claim to the jury even though he had no advice of
counsel defense. He could not make a legitimate
advice of counsel defense because he never gave
enough details for a lawyer to give competent advise
and he did not ask for legal advice. He asked,
essentially, the same kinds of questions to non-
lawyers, which is a pretty good indication that he
wasnt seeking legal advice.
He asked if something was okay. Tactical advice
is what he sought, not legal advice. He did pronounce,
on a few occasions, that what he did had to be legal,
but none of it was focused on any particular issue.
He never asked if something, some specific plan
was legal at a pertinent time. I dont recall a single
instance in which he specifically asked a lawyer if
something was legal. A simple question [250] which
he, a lawyer, knew would cause a lawyer to ask, in
turn, what exactly do you intend to do?
The lawyer defendant in this case understood that
he did not want to ask the question is it legal,
because the answer might stop some of the schemes in
their tracks.
A few of his plans may, arguably, have been legal.
The ones he was convicted of were not. In the end, his
defense morphed into a claim that he did not believe
his proposals were quid pro quo, which he did know
was an illegal exchange. The jury did not believe him
and neither do I.
64a
Its true that one adviser once said that they did
lead the Governor to take certain steps; Harris said so.
If thats asked as a general question to any governors
Chief of Staff, and Ive known a few, or general
counsel, and Ive known a few of them, too, I doubt that
there is any one of them who will tell you that they
never did that from time to time, but this is not the
situation here.
The Governor was not marched along this
criminal path by his staff. He marched them and
ruined a few of their careers, and, more than that, in
the process, except for his brother, and that recently
he seems not to have noticed this.
[251] He was told by Harris and Quinlan that he
should not deal for any personal benefit, not even joke
about it. He denies hearing this or perhaps denies
remembering it, but Im sure he did hear it, and I
believe he ignored it because it was inconsistent with
one of his primary goals. Having heard that is one
reason I believe he decided never to ask for a lawyers
opinion on his scheme.
He talks about his schemes as, I think the word is
lengthy musings, I think thats the word he uses in
one of his briefs. So he asked the jury and now me to
believe that he made the phone calls and arranged
meetings with others so that they could hear his
musings. Musings are the kinds of statements made
when somebody wanders into your office maybe at the
end of the day and you and your staff have exchanged
idle thoughts and speculations. Musings are talks
without purpose, not the material of arranged
meetings and repeated phone calls.
65a
The jury, and I, did not believe these were
musings. I do accept his apology for the position he
took in his testimony in assigning responsibility for his
acts to others. He probably should have named more
people than he did, but I suspect he may very well
regret the fate of others.
[252] Every Governor, even our worst, helps
someone and does good things for people. You never
actually know whether that comes from personal
commitment or from a calculation of political benefit.
In my calculus, it doesnt matter. If something is good,
its good regardless of why it was done.
I do also believe that what he did for childrens
health was motivated by a true concern for the welfare
of children and these actions, in my mind, a mitigating
factor.
Im about to say some things, and before I say
them I want to tell you that they remind me of a
maxim known by many lawyers, doctors, reporters,
editors, and judges: pretty much we all know how to
be kind to people, and pretty much we all know how to
tell the truth, but very few of us know, and I dont, that
there are some times when you cannot do both at the
same time.
The letter submitted to me by the defendant tend
to emphasize his devotion to his children, a couple to
children, in general. I dont doubt his devotion to
children. But this is not an unusual situation.
Counsel for the defense said this is exceptional. It is
not exceptional, its not exceptional in my own
experience. I see case after [253] case where good
fathers are also bad citizens and wind up in jail. There
is no question that the innocent children of felons
66a
suffer, and I am sympathetic to the plight the
defendants children have endured over the last 3
years.
And this is tragic, but, as he admits, the fault for
this lies with the defendant alone. Why did the
devotion as a father not deter him from engaging in
such reckless conduct.
I know the thoughts of children weigh heavily on
his mind as he faces punishment, but now it is too late.
The same thought should have stopped him from even
approaching the line that divides lawful from criminal.
If it is any consolation to his children, he does not
stand convicted of being a bad father.
The fact is, the defendant did not want to take the
risk for being told that a particular plan was illegal.
So he did not ask for legal research to be done, nor did
he do it on his own. Instead, he preserved his ability
to claim that he did not know that something was a
crime. In effect, he allowed his family to assume a
different risk, the one that he would be caught and
convicted.
Some of these letters discuss the good things [254]
the defendant has done, most of them are from people
who personally benefited from acts and specific favors
conferred by the government, and, in some cases, by
the General Assembly.
Their gratitude is actually reasonable and
appropriate, but the request for exceptional leniency
are based on the idea that someone who does good
things cannot also do bad things or that the good
directly offsets the bad.
Very few criminals are all bad. Many are decent
spouses, parents, family members, good friends,
67a
sometimes good employees. But in a criminal court,
the judgments are made upon the criminal acts, usual
the worse things that the accused has done. Good
works do not offset criminal misconduct, though they
may mitigate it. If this were not so, there would be a
great moral hazard, a criminal might decide that if he
does enough good deeds, he will get a pass on his
criminal conduct.
We see this, occasionally, in cases of criminal
gangs who build basketball courts for the community
and contribute in other ways. Its not enough.
Whatever good things you did for people as
Governor, and you did do some, I am more concerned
[255] with the occasions when you wanted to use your
powers to do things that were good only for yourself.
Some of the letters, I have to say, particularly
some of those from people who held highly responsible
positions in life, fall into a category properly described
in an old phrase seldom used these days, and I quite,
damning with faint praise. They speak about
specific instances where something exemplary was
done, or character traits they admire, without ever
endorsing your general character.
There are letters from people who have known you
for a very long time. I have found them thoughtful in
the description of some of your characteristics as a
child and an adult. These views suggests that your
personality may not be entirely suitable for public
service. Much of what I heard in the recordings and
both heard and saw in your testimony support this
view, some unfortunate elements of immaturity. The
willingness to admit, even to yourself, that you have
done something seriously wrong until you are forced to
68a
do so, blaming others for your misconducts, the
impatience, the endless talking, the lack of focus, and
the need [256] for praise and plaudits say from people
whose grandmothers got a free ride on the free bus.
And, in all honesty, this observation is not very
different from a mitigation argument offered by your
own lawyers. One theme from the defense is that you
were just the person who got elected, did not know how
to pick the right staff, were unable to see that the staff
was leading you down the wrong path. Theyre not
traits suitable for a Governor.
I have called you Governor when I spoke to you.
Your own lawyers dont, the government doesnt. By
protocol you are entitled to that honorific if, for no
other reason, you won election as Governor twice. But
I also do it because it serves as a reminder to those of
us who vote and those of us who dont. It reminds the
voters of the maxim the American people always get
precisely the government that they deserve. Your case
is another lesson for us.
Im going to comment also on the way you
responded to the indictment. Although, I have to tell
you that I accept your apology. I think you understand
how wrong it was, but at the time you thought it was
appropriate to reduce this case to a personal battle,
much like a political campaign [257] between you and
the prosecutor in this district.
To you this case was not to be decided on
admissible evidence by an impartial jury, but on the
public perception of the deeds and personalities of
yourself and the prosecutor.
In a political campaign contribution, this tactic
had a great benefit for you because you faced the
69a
prosecutor who could not speak publicly after the first
statements when the indictment was announced. So
you are campaigning against somebody who could not
put up his own billboards and give his own interviews.
You sought to lead the general public for whom the
jury would be drawn to think better of you than they
think of the prosecutor.
And the general public really has no obligation to
be impartial in an election or even to pay any attention
to a political contest. The jury, though, does have an
obligation of impartiality, does have to pay attention
to the evidence, and decide on the basis of the
evidence, not on emotion nor personal preference.
These were foolish and unworthy tactics in
treating the charges as you did. And the reason I
mention it now is it evinced a disrespect for our
citizens, Illinoisans all, called to serve as [258] jurors.
I cannot comprehend that you seem to argue at
first, and I think even underline the argument, the
proposition that even if guilty, there was no harm to
Illinois. This is not the kind of case where, for
example, a state employee plans to break into CMS.
For those of you who are not familiar with Illinois
government, its the Central Management Services.
Seeks to break into a CMS garage to steal state-owned
vehicles and is foiled before he can use his bolt cutter
on the lock. There is no monetary loss to the
government. The harm here is not measured in the
value of money or property. The government makes
an argument that, in fact, people were harmed
monetarily. They make that argument, which I think
is a valid one, almost as an afterthought, because the
governments position, and I think the position that
ought to be everyones position, is not how you
70a
measure what happened here in the value of money or
property. This is one of the principal reasons why the
original guideline 360 to life was just not appropriate.
Able of loss really did not encompass the real damage
in this case. The harm is the erosion of public trust in
government.
[259] In your argument, your attorneys rightly
agree that the financial harm is not the full measure
of damage. Confidence in and trust of government is
diminished.
If confidence in the integrity of the highest
ranking officer of the state, a sovereign officer, is lost
or diminished, things will get worse and not better.
In the United States we dont much govern at
gunpoint. We require willing and creative cooperation
and participation to prosper as a civil society. This
happens most easily when people trust the person at
the top to do the right thing most of the time and, more
important than that, to try to do it all of the time.
If a state Senator takes a bribe, thats one person
out of 59, even if a lesser state-wide officer can go bad,
people accept and move on without much worry. You
are not to be compared with those who hold lesser
positions in government, even, for example, the head
of a major co-department in the State of Illinois.
You, as the Governor, are seen to control all of
them, though I can see, in practice, you dont. You are
seen to control what happens. The image of [260]
corruption in a Governor seeps into the fabric of nearly
all of them. When it is the Governor who goes bad, the
fabric of Illinois is torn and disfigured and not easily
or quickly repaired. You did that damage.
71a
Sentence: On counts 3, 5 through 13, 15 to 17, 21
and 23, 168 months in the custody of the Bureau of
Prisons.
On counts 18, 23, 60 months in the custody of the
Bureau of Prisons.
On Count 24, 36 months in the custody of the
Bureau of Prisons.
All of these sentences are to run concurrently.
These are to be followed by a period of supervised
release of 2 years, and I believe on all counts they are
to run concurrent, as well.
Within 72 hours of your release from custody, you
will report to the Probation Office in the district where
you are released. The standard conditions of this court
will apply under those circumstances. Although, I
think it is unnecessary, I have to order standard drug
testing, random drug testing not to concede 104 tests
per year.
You will have to submit to a DNA test, if ordered.
You may not possess a firearm or other [261]
destructive device while on supervised release.
You may not commit a crime under the law of any
jurisdiction, state, municipal or federal.
I am imposing a fine on of $20,000. If the payment
has not been made by the time you have been released,
you shall pay the fine in installment payments that
are at least 10 percent of your monthly income.
This is a case in which the nature of the charges
and the proof does not justify restitution. I regard
restitution as inapplicable in this case.
Theres a special assessment of $100 for each
count, that is an assessment of $1,800.
72a
With that, I want the defendant and counsel to
come to the lectern.
(Brief pause).
THE COURT: First I want to inform the
defendant that you have the right to appeal both the
convictions and the sentence. If you want to do so,
speak with your lawyer, theyll tell you how to go about
doing it.
Surrender date?
MS. GURLAND: Your Honor, what we had
spoken about is a request for February 15th, which is
I think about 60 days.
[262] THE COURT: Yes, it has to be at least 42
days out because they wont be able to designate by
then. February 15th is fine.
MR. SOROSKY: Could we make it the 16th?
THE COURT: Sure.
MS. GURLAND: And theres a couple of other
housekeeping things, Your Honor. Because of the
uncertainty about whether defense would be above or
below the what I understand to be the 10-year cut off
for the designation of camp versus low, we would like
Your Honor to make a recommendation, but if we
could have a little bit of time to think about what that
recommendation would be, we would very much
appreciate it.
THE COURT: Im likely to agree with that. You
can have the time. What time do you want?
MS. GURLAND: When would you like us to get
back to you? Could we get back to you tomorrow?
MR. SOROSKY: Could we make it Friday? Is
Friday okay?
73a
THE COURT: Friday is fine.
Anything from the government.
MR. SCHAR: Judge, several things.
We have a special assessment in the fine, in legal
language, do you want it payable immediately [263]
with the additional understanding
THE COURT: Yeah, it is due and payable
immediately.
MR. SOROSKY: Could we have pay that Friday?
THE COURT: $1800, Friday is fine.
MR. SCHAR: And the $20,000?
THE COURT: $20,000 is an issue that we have to
determine later if theres an obvious inability to pay it.
MR. SCHAR: I think there are two counts
remaining. We move to dismiss those two remaining
counts. There were two hung counts.
THE COURT: I remember that. Do you
remember the number of the counts?
MR. SCHAR: Ill get them to you.
THE COURT: That will be fine.
MR. SCHAR: And just for record purposes,
Judge, assuming even if for some reason there was an
error in the guidelines, your sentence will be as it is
today.
THE COURT: My sentence would be as it is
today.
MR. SCHAR: And although you have not hit on
every single mitigation argument, because obviously
there were many, you have taken them all into [264]
account in coming to your sentence?
74a
THE COURT: I believe that I have read every
paper submitted to me, part of that was due to the
nature of the case, and part of it was due to the fact
that they were so long that there was a risk that my
concentration might have lapsed, particularly if I was
reading them at night. So I read them all twice. And
while I would not contend that I could recite most of it
from memory, I think I could come pretty close, and
yes, I considered all of them.
Anything else?
MR. SCHAR: No, Judge.
MR. SOROSKY: Is there any time you want us to
come in on Friday?
THE COURT: Talk to Mr. Walker.
The court is adjourned.
THE CLERK: All rise.
(Which concluded the proceedings had on this
date in the above entitled cause.)
75a
APPENDIX G
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF ) No. 08 CR 888
AMERICA, ) Chicago, Illinois
Government, )
August 9, 2016
vs. )
) 10:35 oclock a.m.
ROD BLAGOJEVICH,
)
Defendant.
)
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES B. ZAGEL
RE-SENTENCING
* * *
[51]
* * *
THE COURT: About 4 and a half years ago, I
sentenced the Governor to 168 months in prison, 2
years of supervised release, $20,000 fine, and a $1800
special assessment, part of which is now no longer
applicable.
In doing so, I considered what I believe significant
damage, and significant damage that was the result of
the Governors actions inflicted on the People of the
State of Illinois, which included the erosion of public
trust in government that this state, in particular, has
suffered time and again. Against these harms, I
balanced the legitimate good, and there was some,
that the Governor had done in his career in public
76a
service, and his remorse, and his acceptance of
responsibility for his crimes.
There is a discussion, which I think is not dealt
with and may never be dealt with, in terms of the exact
standard and use to be made of acceptance of
responsibility. I believe [52] because acceptance of
responsibility was made in my court, I am unwilling to
alter it. There is another court that might seek to do
so, but I leave that to one side.
What I did say, in the period after the verdict was
reached and after sentence was imposed, I said, and I
quote:
. . . the fabric of Illinois is torn and disfigured
and not easily or quickly repaired.
I still believe that is contained in the
circumstances that happens in the jurisdiction where
something of this sort occurred, and occurred in public
amongst the vast majority of us. Its not easy to say,
well, thats over with and we can move on to the next
case, but the next cases become difficult because the
fabric of the State is torn and trust among its citizens
is diminished, not wholly, maybe not forever, but
during a period that still, in my view, exists.
Today, the defendant stands before me seeking a
reduction of his sentence to 5 years incarceration, plus
supervised release. He argues that this reduction,
which, in the context of this case, is dramatic, he
argues that this dramatic reduction is justified
because the 5 charges that the Court of Appeals
missed were, and I quote:
. . . the centerpiece of the governments case.
and thus, he argues, the only charges that allege
that the Governor abused his office for personal
77a
benefit. In fact, Blagojevich argues that the remaining
counts only relate [53] to his attempts to raise
campaign funds, which he characterizes as the folly of,
and I quote:
. . . an overly zealous of the politician seeking
to advance his political goals.
He claims he did not accept cash bribes or use
fund-raising money for personal enjoyment, nor did he
engage in trades that counter to the interest of the
people of Illinois, for this reason, he sees himself, the
defendant, as less morally culpable than some of our
previous politicians who have been convicted of
corruption crimes and sentenced to lesser prison
sentences.
I dont draw such a clearer moral distinction
between the abuse of offer for personal gain and the
abuse of office for political purposes, like campaign
raising.
The defendant remains convicted of activities that
were plainly beneficial to him, both politically and
personally. I think its important to note that, as the
government does, that the defendants own recorded
conversations reveal that he intended to trade the
Senate seat for money to solve his personal, legal, and
financial problems.
Evidence also shows that at the time he was
trading official acts for campaign funds, he had no
intention of actually running another campaign. The
same three shakedowns that I considered at the
original sentencing are still at issue here. The Senate
seat trade and the schemes involving the race [54]
tracks and Childrens Memorial Hospital.
78a
In Counts 7 through 11, which involve the attempt
to trade the Senate seat, wouldve resulted in millions
of dollars put toward a new 501(c) organization where
the Governor could have worked for a generous salary
after leaving office.
So I do not believe these activities were conducted
only for political gain. As in many cases, political and
personal gains were very much intermingled here.
Although its not necessary in this case, I may also
consider conduct of which the defendant was charged
but acquitted as long as theres a preponderance of the
evidence supporting that charged conduct took place.
Even if I did consider the remaining counts to be
of a less serious nature, it may not significantly impact
my decision because, as noted by the Court of Appeals,
the Governors claims of innocence on appeal were,
quote, frivolous, and evidence of his guilt on all
counts is, quote, overwhelming.
The Governor does argue, and has continued to
argue, that he has demonstrated extraordinary
rehabilitation while in prison and has submitted a
number of letters from fellow inmates supporting that
claim. I dont dispute that the Governor may have
been, and may, for all I know now, may be a model
prisoner with no disciplinary infractions, and I am also
willing to accept that he has become a tutor and
mentor to many [55] of his fellow prisoners.
The letters from the inmates extol Blagojevichs
respect for and truth in the correction system, among
other qualities which has revealed to them. They
write of their admiration for the Governor and they
praise his efforts to support and assist them. These
prisoners were very close, or reasonably close, to
79a
Blagojevich, but they also knew him only from the
inside of prison. They think of him as a good man, but
they dont know him, and they dont know him in the
context of a powerful officeholder in Congress and in
Illinois. They did not hear the evidence of the
Governors former life and activities.
The governor is clearly devoted to his family,
especially his wife and two daughters. And the toll
that the Governors incarceration takes on his family,
especially his children, is not lost on me, and I dont
imagine that any judge could lose it.
I do not doubt that the Governor is a loving father
and that his children miss him deeply in his absence.
It is an unfortunate reality that all prisoners, even
those who are good parents and good spouses, all of
them have innocent family members who are made to
suffer the consequences of their loved ones crime. I
am sympathetic to them and how painful this
experience has been to them, but I said 4 years ago,
the fault lies on the Governor and no one else at that
time. He was [56] aware that illegal conduct could
land him in jail, away from his wife and children, and
he went ahead with it anyway.
It seems that the Governor has used his time in
prison well, studying music, working in the library,
pursuing his appeal. This is decent behavior, and yet,
I expected nothing less.
When I sentenced the Governor 4 years ago, I had
four factors to consider. My task was to impose a
sentence sufficient but not greater than necessary.
And the issues most significant were that the penalty
should reflect the seriousness of the offense, promote
respect for the law, and provide just punishment for
80a
the offense, to afford adequate deterrence to criminal
conduct, to protect the public from further crimes of
the defendant, and the last having to do with certain
training, I think, is not relevant to this particular
case.
And it may well be that protecting the public from
further crimes, if he has none, limits the significance
of that standard, but reflecting the seriousness of the
offense, promoting respect for the law, providing just
punishment, and adequate deterrence are all still
significant factors in this case.
So basically, we are dealing with the objectives in
little a and little b. The fact that the Governor has
been productive, engaged and well based while in
prison is laudable, [57] but it is not especially germane
to my decision today.
As I have discussed, I find it beyond dispute that
the Governors offenses were quite serious, to say
nothing of his flagrant disrespect for the law.
Evidence showed that the Governor delayed measures
that were in the public interest while he conducted
illegal horse trading for his personal benefit, then lied
to the FBI about those activities. Ironically, this is a
man who ran for office on a platform of restoring
integrity to Illinois politics. These are serious crimes
having grave impact on the people of Illinois who
already tax faith in their government.
The Court of Appeals noted, and I quote this:
. . . it is not possible to recall 68 months
unlawfully high for Blagojevichs crimes.
The Governors good behavior in prison and his
acceptance of responsibility, to some level, back in
81a
2011, do not erase the harm he inflicted on the people
of Illinois.
I also think the deterrence concerns in this case
are paramount. I dont believe, as the Governor
argues, that only Congress or the Supreme Court can
deter this kind of conduct. One role of the trial court
is to impose a sentence that we hope deters would-be
law breakers from engaging in illegal activity, and in
a case such as this one with high stakes, that effect the
entire State, deterrence can justify a significant
sentence.
[58] Now, what should that sentence be? The
sentencing range under the guidelines was not
affected by the removal of 5 counts. In fact, the
current sentence of 168 months is still significantly
below the minimum recommended sentence in the
guidelines.
Base offense level here is 14, as before. I add 2
points for more than one bribe or extortion, 16 points
for a lost value of $1.625 million, 4 points because
Blagojevich was a public official, 4 points for being an
organizer or leader of an extensive criminal activity,
and 2 points for obstruction of justice.
For my purposes in this court, I did subtract 2
points for acceptance of responsibility. I do not
retrieve from that.
This results in a total offense level of 40.
Pursuant to the guidelines, the appropriate sentence
range is 292 at bottom to 365 months. I regarded that
as much too high in this case.
I am imposing the same sentence of 168 months
over 4 years sorry. 168 months, over 4 years of which
have already been served. The period of imprisonment
82a
will be followed by a term of 2-year supervised release.
And I am following the probation officers
recommendations as to the conditions of that release.
During his release, the defendant shall not
commit another federal, state, or local crime, or
unlawfully possess a [59] controlled substance.
Shall cooperate in the collection of a DNA sample,
if such collection is required by law.
He shall refrain from possessing a firearm or
destructive device or other dangerous weapon.
He shall remain within the jurisdiction where hes
being supervised unless granted permission to leave
by the Court or a probation officer.
He shall report to a probation officer as directed,
and shall permit a probation officer to visit him at any
reasonable time at home, work, school, or community
service, and any other location specified by the officer.
He shall permit confiscation of any contraband
observed in plain view of the probation officer.
He shall promptly notify a probation officer within
72 hours of any change in residence, employer, or work
place. And absent constitutional or other legal
privilege, answer inquires from a probation officer.
He shall promptly notify a probation officer within
72 hours if arrested or questioned by a law
enforcement officer.
He shall, if unemployed after the first 60 days of
supervision or for 60 days after termination or layoff,
perform at least 20 hours of community service per
week at the direction of the U.S. probation officer until
gainfully [60] employed.
83a
He shall not enter into any agreement to act as an
informer or special agent of a law enforcement agency
without the permission of the Court.
I understand the fine of special assessment have
been paid in this court.
You will note in what I just said, that theres
reference to a very small number of requirements
required when hes in custody, or, for that matter,
when hes in supervised release. These are well-
known factors. If it should come to pass that counsel
for either side would like to have them repeated
present in court, I will be happy to do so, and youll
have appropriate time to do that.
Counsel, did you want to approach and tell me
what it is that you would like to do next.
(Brief pause).
MS. BONAMICI: Your Honor, two things with
respect to the terms of supervised release and the
special assessment.
With respect to the community service obligation,
I believe that Your Honor is required to specify a
maximum number of hours per week.
And with respect to the special assessments, I
believe that because the defendant has already paid,
the special assessments for which he was obligated
under the dismissed counts, some provision should be
made for that money to be [61] returned to him, I
believe. Im not sure of that, but I point that out to
Your Honor as a question.
MR. GOODMAN: Im sorry. Im sorry, Judge. I
didnt get the question.
84a
THE COURT: Perhaps what you might do, when
we adjourn, is consult among yourselves. If it is
necessary to change this or if there needs to be a
special admonition to the nature of the rules I adopted,
and we can do that before we leave today.
MS. BONAMICI: Okay.
THE COURT: Anything else?
MS. BONAMICI: No, Your Honor.
MR. GOODMAN: No.
MS. MATUZAK: No, Your Honor.
THE COURT: Thank you, counsel.
THE CLERK: All rise.
(Recess.)
MS. BONAMICI: Again, Debra Bonamici and
Laurie Barsella for the United States.
MR. GOODMAN: Leonard Goodman and Malissa
Matuzak for Rod Blagojevich.
Judge, we discussed and we are agreed to the 200
hours of community service.
THE COURT: Granted.
MR. GOODMAN: And in terms of any special
assessment
* * *