U.S. v. Wigoda

• Decision Date: 10 April 1975
• Docket Number: No. 74-2007,74-2007
• Citation: 521 F.2d 1221
• Parties: 75-2 USTC P 9664 UNITED STATES of America, Plaintiff-Appellee, v. Paul T. WIGODA, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1221

521 F.2d 1221

75-2 USTC P 9664

UNITED STATES of America, Plaintiff-Appellee, v. Paul T. WIGODA, Defendant-Appellant.

No. 74-2007.

United States Court of Appeals, Seventh Circuit.

Heard April 10, 1975.

Decided Aug. 20, 1975.

Sherman C. Magidson, Warren Wolfson, Harry J. Busch, Chicago, Ill., for defendant-appellant.

Samuel K. Skinner, U. S. Atty., Gary L. Starkman, Jeremy D. Margolis, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and BRYAN, Senior District Judge. ^*

CUMMINGS, Circuit Judge.

In April 1974, an indictment was returned against defendant, the alderman representing the 49th Ward of the City of Chicago. The second count of the indictment charged that defendant subscribed to a false income tax return for 1969 by substantially under-reporting his gross income in violation of 26 U.S.C. § 7206(1). ¹ The jury found defendant guilty and the district judge imposed a one-year prison sentence. This appeal followed. We affirm.

I. Sufficiency of the Evidence

In a somewhat half-hearted way, defendant contends that his motions for a judgment of acquittal should have been granted on the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt. This necessitates a summation of the important evidence. Of course, this Court does not make its own credibility determinations, so that the evidence and inferences most favorable to the Government's case are accepted. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

On July 19, 1965, Roy Gottlieb and Kenneth Tucker signed an agreement to purchase the Edgewater Golf Club in Chicago for $7,600,000. They deposited earnest money of $200,000. Although the balance of the purchase price was supposedly to be paid by November 1, 1966, the buyers exercised their right under the contract to pay an additional $200,000 deposit, thus extending the due date on the remaining $7,200,000 balance until November 1, 1967.

The contract permitted a further extension of the time for payment of the balance until November 1, 1968, if a third party initiated proceedings to downgrade the R-4 zoning classification of the property, which existed in 1965. The R-4 classification permitted the building of residence structures, including multi-family dwellings, and certain non-business structures such as libraries, churches and cemeteries. Gottlieb and Kenneth Tucker needed to secure a new, more permissive zoning classification before they could build their planned regional shopping center complex. Attorney Robert Haskins was retained to secure the rezoning. He ultimately received approximately $248,000 in fees for his work on the project.

In May 1967, Haskins filed an application with the City Council of Chicago requesting upgrading of the property's zoning to the planned development classification which would permit the construction of the shopping center, high-rise apartment units and a number of townhouses. Early the next month, the application was referred to the Chicago Plan Commission and the Council's Committee on Buildings and Zoning. Defendant sat on both bodies; his 49th Ward bordered the ward containing the land in question.

At the June hearings of the Chicago Plan Commission and the Committee on Buildings and Zoning of the Council, Alderman Jack Sperling of the 50th Ward, where the property was located, and others opposed the rezoning. Defendant successfully favored deferment of the proposal's consideration.

In late October 1967, Haskins and Gottlieb visited defendant in his office and suggested that he file an application to downgrade the zoning so that the developers would have another one-year extension of time to raise the $7,200,000 balance instead of forfeiting the $400,000 already paid. Two days later defendant introduced an ordinance to downgrade the zoning from R-4 to R-2, permitting only the construction of single-family residences. Simultaneously, three other aldermen on record as opposed to the development plan co-sponsored a virtually identical downzoning ordinance. Thus the developers gained an additional year in which to secure the needed $7,200,000 to complete their purchase. Defendant never followed through on his proposed downzoning ordinance, so that it died in committee.

Before the spring of 1968, Gottlieb returned to defendant's office to discuss the Edgewater property. He reminded defendant about the June 1967 hearing on the developers' upgrading application. Gottlieb testified that he told the defendant that "if we didn't get the property zoned that I didn't think anyone would ever make any money out of the project" (Tr. 267). Defendant agreed to determine why no action had been taken on that application.

Before the November 1, 1968, deadline, the developers secured the necessary $7,200,000 and the sale of the Edgewater property was consummated.

At a January 17, 1969, hearing of the Chicago Plan Commission, defendant voted to approve the planned development, as revised in late 1968 or early 1969, although he had previously sponsored the downzoning ordinance. Until this time, defendant had repeatedly advocated the acquisition of the Edgewater property by some public agency so that it could be preserved as open space for public use.

On January 23, 1969, Haskins presented the case of the developers before the City Council's Committee on Buildings and Zoning. As a member, defendant witnessed the presentation. Subsequently, he voted with a majority of that committee to recommend approval of the planned development by the full City Council.

Soon after the committee hearing, Philip Krone, a consultant of the Illinois Department of Conservation, visited defendant in his office and urged him to table the planned development of the Edgewater property, so that it could be purchased by the State for $9,500,000 in view of its then R-4 zoning. Krone informed the defendant that a bill to purchase the land for recreational purposes was to be introduced in the State legislature. Defendant was hostile to Krone's suggestion. The rezoning sought by the developers would increase the cost of the land to any public purchaser.

On March 14, 1969, the Edgewater planned development was approved by the full City Council. Even though, as noted earlier, he had previously introduced the downzoning ordinance and had openly favored the dedication of the property to public use, defendant spoke and voted in favor of the revised, planned development. Other aldermen with wards contiguous to that containing the Edgewater property voted to disapprove the proposed rezoning, in accord with their consistently advocated view that the public should have the benefit of the open land.

Prior to the passage of the ordinance and afterwards, Haskins discussed the Edgewater property with defendant. Haskins and Gottlieb subsequently met in Haskins' office to discuss the property, and later Gottlieb and Kenneth Tucker met seriatim about the project.

On April 7, 1969, Kenneth Tucker and his uncle, Oscar Tucker, met at the bank where Oscar Tucker maintained a safety deposit box containing a large sum of cash under the name Oscar Goldman. Oscar Tucker gave his nephew $50,000 in $100 and $50 bills from the box. Kenneth Tucker displayed this money to Gottlieb in the former's office. They recounted it, put it in an envelope and locked it in Kenneth Tucker's office safe.

On April 8, 1969, Gottlieb and Haskins met at Haskins' office and Gottlieb handed the lawyer a sealed envelope containing the $50,000. Thereafter Haskins telephoned and then visited defendant's office where he handed him the sealed envelope, telling defendant that "Gottlieb wanted me to give you this." Defendant did not report that $50,000 as income.

On December 9, 1969, defendant moved the City Council to consider a resolution asking the Governor of Illinois to implement acquisition of the property pursuant to prior legislation. This resolution was passed unanimously, and the rezoned land was sold to the State of Illinois and the Chicago Public Buildings Commission for a total price of $18,300,000, giving the developers an approximate net profit of $6,000,000. Three to four million dollars of that profit derived from the increased value of the land caused by the 1969 rezoning which defendant had favored in two committees and in the final council vote.

At the trial, Haskins testified that on April 8 he delivered to defendant the same envelope he had received from Gottlieb. He told the jury that an envelope containing 500 $1.00 bills was about the same size and weight as the envelope he delivered to defendant.

In United States v. Ernest, Inc., 509 F.2d 1256, 1261 (7th Cir. 1975), we discussed circumstantial evidence as follows:

"Where the evidence is circumstantial it is not necessary that it be such as to exclude every reasonable hypothesis other than that of guilt. As with direct evidence, it is only necessary that the jury be convinced of guilt beyond a reasonable doubt." (Citations omitted.)

Thus there is no requirement that circumstantial evidence, in order to sustain a guilty verdict, must exclude every reasonable hypothesis but that of guilt. All that is necessary is that such evidence convince the jury beyond a reasonable doubt of the defendant's guilt. Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150. A guilty verdict must be upheld on an insufficiency of the evidence challenge "if a rational trier of fact could have found beyond a reasonable doubt" that defendant committed the crime charged. United States v. Scher, 476 F.2d 319, 320 (7th Cir. 1973).

Applying these principles and viewing the evidence in the light most favorable to the Government, the jury could properly find that defendant received a $50,000 cash payment in return for his assistance with respect to the Edgewater property and that he did not report this sum on his 1969 income tax return.

II. ...