U.S. v. Boender

• Decision Date: 19 August 2011
• Docket Number: No. 10–2652.,10–2652.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Calvin BOENDER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

649 F.3d 650

UNITED STATES of America, Plaintiff–Appellee,

v.Calvin BOENDER, Defendant–Appellant.

No. 10–2652.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 2011.Decided Aug. 19, 2011.

Brandon D. Fox, Attorney, Andrianna D. Kastanek (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Robert M. Sanger (argued), Attorney, Sanger & Swysen, Santa Barbara, CA, for Defendant–Appellant.Before MANION, EVANS,^* and HAMILTON, Circuit Judges.MANION, Circuit Judge.

Over the course of 2004, Calvin Boender spent approximately $38,000 on home repairs for Isaac Carothers, a Chicago Alderman and crucial player in Boender's attempt to have certain industrial property rezoned for commercial and residential development. Boender also convinced a couple of business associates to donate, at his expense, to Carothers's aunt's congressional campaign. And when the government investigated the earlier events, Boender fabricated an invoice for the home repairs, purportedly sent from his general contractor to Carothers. As a result, Boender was indicted, tried, and convicted of bribing a local official, exceeding federal campaign contribution limits through straw-man donations, and endeavoring to obstruct justice. He appeals aspects of all his convictions. We affirm.

I. Background

A. The Galewood Yards Rezoning

In 2000, Boender purchased a 50–acre parcel in northwest Chicago's Armitage Industrial Corridor. The property, known as Galewood Yards, was zoned for manufacturing use and largely undeveloped. For four years, Union Pacific Railroad leased all, and then part, of the property. Things changed in early 2004 when Union Pacific left. Boender began searching for other uses for the land, and eventually decided to build a full-service retail and residential community. But the City of Chicago's Department of Planning and Development had other plans for the property and, at about the same time, was attempting to designate the entire industrial corridor a Planned Manufacturing District (PMD). This “zoning overlay” would lock in the manufacturing designation for the property, making it very difficult to change the zoning once the PMD was in place.

Local politics being what they are, neither change was likely to succeed without the support of the local alderman. Mindful of this reality, Boender attempted throughout 2004 to cultivate the support of Carothers, the alderman whose ward covered the largest part of Galewood Yards. In March, Boender and his wife each contributed the maximum $2,000 to the congressional campaign of Carothers's aunt, Anita–Rivkin Carothers. Around the same time, he also asked two other associates to contribute to the campaign, promising to reimburse them for the donations. Both contributed $2,000; Boender wrote one of them a check for $4,000 to reimburse him and have him write a check to the other.

In June, Boender hired Stanley Walczak, a general contractor with whom he had previously worked, to paint various parts of Alderman Carothers's house. Boender arranged to pay for the work. When Boender learned of the Department's plan to establish a PMD that included Galewood Yards, he was “irate” and told a Department representative that he did not need to deal with her because “he had made a deal with the alderman.” And when the same representative spoke to Carothers about the plan, the alderman responded that “he was going to do what he wanted to do with the land in his ward and [she] was not to discuss it with anybody.” Nevertheless, the mayor approved the Department's plan. Early in July, Boender and Carothers met with the Department to discuss the future of Galewood Yards and advocate rezoning the property for residential and retail use, but the Department remained opposed.

While painting Carothers's house in July, Walczak's crew discovered that the windows were rotting. Carothers selected expensive windows, and Boender authorized Walczak to install 31 windows, telling him that Carothers had “helped him a great deal with changing the zoning of Galewood Yards.” Boender paid for the windows with a check for $11,252 written from one of his companies. In August, Boender also received an offer from Kerasotes Theatres to purchase 10 acres of Galewood Yards for approximately $4.8 million, contingent on a zoning change to allow for commercial use. That same month, Alderman Carothers gave an interview to the Chicago Sun–Times, at Boender's request, speaking in favor of rezoning Galewood Yards. At about the same time, Carothers asked Walczak to replace several doors and perform some other interior repair work in his house. Boender told Walczak to “Go ahead and do it. The guy is worth it.”

In September, Boender filed an application for a zoning change with the City Council. Two weeks later, he paid $12,800 for two air conditioning units for Carothers's home. Shortly after that, Boender authorized Walczak to do additional work necessary to install the units, explaining that the alderman “had helped him a lot with the change of zoning” and “went so far as to stand up to Mayor Daley.” In October, Boender paid $13,350 for this work. All told, Boender paid approximately $38,000 for repairs and improvements to Carothers's home.

Although the home repairs were complete in October, the matter of the Galewood Yards zoning was still open. Unable to proceed with the PMD designation of Galewood Yards without the support of Carothers, the City agreed to a compromise. In 2005, it helped secure an industrial use for half of the property and in exchange agreed to support the rezoning of the other half of the property for commercial and residential use. Carothers sent the Department an official letter of support for the compromise in February 2006 and in March twice advocated rezoning Galewood Yards at City Council hearings. In accordance with the compromise, Carothers supported the ordinance rezoning Galewood Yards, and it passed the City Council on March 29.

B. The Fabricated Invoice

A year later, in August 2007, Boender and Walczak received grand jury subpoenas. They met several times to get their stories straight. After discussing different options, they settled on a story that Walczak had initially billed Carothers but when Carothers failed to pay, Boender felt obliged to pay the bill because he had given Walczak the job. In January 2008, the government issued more grand jury subpoenas to Boender's companies, including those from which the checks for Carothers's home repairs were written. Boender then asked a business partner how much had been spent on the home repairs; when he learned the total amount, Boender stated that he “wish [ed] we had sent an invoice out to the alderman for the work.” He then fabricated an invoice for $38,000, dated September 8, 2004, and supposedly from Historic Homes, Ltd., a defunct company he had previously owned.

In late February, Boender gave the fake invoice to his real estate attorney, Michael O'Connor, informing him that the invoice was covered by the subpoena and that he wanted to produce it to the government. O'Connor's only role was to forward Boender's documents to criminal defense attorney Dan Reidy, with whom Boender and O'Connor initially met on February 25. After the initial conversation, Reidy scheduled a meeting with the government to discuss the case and put Boender's best argument forward.

During their initial conversation, Boender had told Reidy that he had sent an invoice to Carothers for work done in 2004. But when Reidy reviewed the invoice in preparation for his meeting with the government, he called Boender and expressed concern that “perhaps the invoice hadn't actually been sent to Mr. Carothers because [he] noticed it was typed and that it was an original.” He also told Boender that because Historic Homes was not subject to a subpoena, they did not yet have to produce it. Boender asked whether the document would help him; when Reidy responded that “if it was real, it helped him,” Boender assured him that it was in fact real.

At the February 27 meeting, prosecutors told Reidy that the invoice might not be genuine. On February 29, however, the invoice was Bates-stamped and produced with other responsive material. Later that day, Reidy sent an e-mail with Boender's authorization informing the government that the invoice “was not prepared on or about the September 8, 2004 date it bears and was not sent to the named addressee.”

C. Criminal Proceedings

In 2009, the grand jury indicted Boender on various charges, including: making contributions in excess of federal limitations by soliciting and reimbursing two donors for campaign contributions in violation of the Federal Election Campaign Act, 2 U.S.C. §§ 441a(a)(1), 441f & 437g(d)(1)(A)(ii); corruptly giving things of value to a local official in violation of 18 U.S.C. § 666(a)(2) by paying for Carothers's home repairs; and endeavoring to obstruct justice in violation of 18 U.S.C. § 1503(a) by asking Walczak to give a false story to the government and fabricating and intending to produce a false invoice in support of that story.

In February 2010, the government moved in limine to admit testimony and evidence concerning the production of the fabricated invoice, contending that communications about document production are not privileged. It also argued that any privilege that did exist was forfeited under the crime-fraud exception, and asked the district court to conduct, if necessary, an in camera hearing to determine whether the exception applied. Boender simultaneously moved to exclude any testimony or evidence related to Reidy because it was protected by the attorney-client privilege. In response, the district court held an in camera hearing to resolve the issue. It directed Reidy to appear and ruled that both Boender and the government could attend the hearing. The court heard testimony from Reidy, Reidy's staff, and O'Connor. Finding sufficient evidence that...