U.S. v. Bolton, s. 87-2595 and 89-1152

• Decision Date: 15 March 1990
• Docket Number: Nos. 87-2595 and 89-1152,s. 87-2595 and 89-1152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest BOLTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 894

893 F.2d 894

UNITED STATES of America, Plaintiff-Appellee, v. Ernest BOLTON, Defendant-Appellant.

Nos. 87-2595 and 89-1152.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 1989.

Decided Jan. 18, 1990.

Rehearing Denied March 15, 1990.

Daniel A. Dupre (argued) and Robert W. Kent, Jr., Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Constantine J. Gekas (argued), Harvitt & Gekas, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, FLAUM and MANION, Circuit Judges.

PER CURIAM.

Defendant Ernest Bolton was the subject of three indictments. He was tried under the third indictment, which was returned by the Special October 1984 Grand Jury of the Northern District of Illinois on February 3, 1987. He was a health inspector for the Department of Consumer Services of the City of Chicago. Count One charged Bolton with racketeering conspiracy in violation of 18 U.S.C. Sec. 1962 and involved allegations that he took bribes in return for favorable inspections. Counts Two through Twelve and Count Fourteen alleged extortion in violation of 18 U.S.C. Sec. 1951, while Count Thirteen alleged attempted extortion also in violation of 18 U.S.C. Sec. 1951. An eight-day jury trial began on February 17, 1987, before Judge Getzendanner and resulted in a verdict of guilty on Count One (racketeering conspiracy), Counts Three, Seven, Nine and Twelve (extortion), and not guilty on Count Thirteen (attempted extortion). Because the jury could not reach a verdict on the remaining counts, a mistrial was declared as to them. Defendant was sentenced to concurrent terms of imprisonment of three years on Counts One, Three, and Seven, and concurrent terms of five years' probation on Counts Nine and Twelve.

On March 7, 1988, this Court remanded the case to determine whether any of the indictments against Bolton were valid under United States v. Taylor, 841 F.2d 1300 (7th Cir.1988), certiorari denied sub nom. Rosenstein v. United States, --- U.S. ----, 108 S.Ct. 2904, 101 L.Ed.2d 937, because of questions regarding the validity of the Grand Jury that indicted him. The district court ¹ found that the original indictment against the defendant was valid and did not discuss the second and third indictments. The defendant filed two notices of appeal, one with respect to the judgment sentencing him and the other with respect to Judge Norgle's order on remand finding that the original indictment was valid. The appeals were consolidated by this Court. We now reverse the convictions and remand the case to the district court with instructions to dismiss the third indictment under which the defendant was tried.

Subsequent to the decision in Taylor, we decided the issue presently before us, namely whether the Special October 1984 Grand Jury's term had been properly extended after October 1, 1986, when its first extension had expired. In the appended order, United States v. Clemenic, No. 88-3294, 886 F.2d 332 (August 21, 1989), we held that the Grand Jury's term had not been validly extended, so that any indictment by that body after October 1, 1986, was a nullity and therefore there was no jurisdiction to try Clemenic. We did not publish that order because we were then advised that the problem was unique and that Clemenic had already been reindicted.

At the oral argument of the present case, we were advised by the government counsel that this is the last case presenting this problem, and in a post-argument letter of December 20, 1989, the United States Attorney advised us that Bolton can be reindicted and tried by virtue of 18 U.S.C. Sec. 3288, which gives the government 60 days to file a new indictment after the dismissal of an invalid indictment.

Clemenic controls the outcome of this case. Therefore the convictions are reversed and the case is remanded to the district court with instructions to dismiss the indictment under which the defendant was tried. ²

APPENDIX

[UNPUBLISHED ORDER NOT TO BE CITED PER CIRCUIT RULE 53]

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

No. 88-3294

Argued May 31, 1989

August 21, 1989.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. JESSE E. ESCHBACH, Senior Circuit Judge

United States of America, Plaintiff-Appellant,

v.

Paul Clemenic, Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 86 CR 727--William T. Hart, Judge.

ORDER

Defendant-appellee Paul Clemenic ("Clemenic") was indicted on October 14, 1986, by the Special October 1984 Grand Jury on fifteen counts of wire fraud and one count of bank robbery in violation of 18 U.S.C. Sections 1343 and 2113(b), respectively. The indictment specifically alleged that Clemenic devised a fraudulent scheme to obtain more than $125,000 from customers of his computer company by falsely representing that he would deliver computer equipment upon receipt of the full purchase price. A superseding indictment, returned by the same grand jury, was filed on January 6, 1987, charging Clemenic with seven counts of wire fraud, the bank robbery charge, and seven counts of transportation of stolen goods in violation of 18 U.S.C. Section 2314.

On January 13, 1987, a second superseding indictment was filed, also returned by the same grand jury, charging Clemenic with the same criminal offenses as the previous indictment. ¹ The bank robbery count was dismissed upon the defendant's motion, and a jury trial was held on the remaining fourteen counts. A jury convicted Clemenic on eleven of those counts.

Following the trial, the United States Attorney's Office discovered the absence of a formal order extending the Special October 1984 Grand Jury for its two last six-month terms, i.e., for the period of March 1986 to September 1986, and the period of September 1986 to February 1987, the date of the grand jury's discharge. The government communicated this information immediately to defense counsel. The defendant subsequently filed a "Motion In Arrest Of Judgment Or In The Alternative Motion To Dismiss For Lack Of Jurisdiction." In that motion, Clemenic claimed that the Special October 1984 Grand Jury had "lapsed prior to the return of the second superseding indictment," and that the indictment was therefore invalid. The district judge granted Clemenic's motion and vacated the trial jury's guilty verdict. The district court concluded that the government had failed to show that the chief judge had satisfied the requirements of 18 U.S.C. Section 3331 ² by determining at the end of the grand jury's term that its business had not yet been completed. The court therefore concluded that the grand jury was improperly constituted and that the indictment was invalid. Accordingly, it vacated the jury's guilty verdict and dismissed the indictment on May 28, 1987.

The government then appealed the district court's ruling. The appeal, consolidated with other cases, was decided by this Court in United States v. Taylor, et al., 841 F.2d 1300 (7th Cir.1988), certiorari denied sub nom. Rosenstein v. United States, --- U.S. ----, 108 S.Ct. 2904, 101 L.Ed.2d 937. In Taylor, this Court remanded only the Clemenic case for certain factual determinations. 841 F.2d at 1309. The district court entered an order on remand finding that it lacked jurisdiction to try or sentence Clemenic and dismissed the indictment against him and subsequently entered an order denying the government's motion for reconsideration. The government now appeals. We affirm.

I.

The sole issue before us is whether the district court properly vacated Clemenic's conviction on the ground of an improperly constituted grand jury.

A.

In Taylor this Court held that Section 3331 of the Criminal Code requires only a judicial determination that the grand jury has not finished its business--not the ministerial act of memorializing that determination by a formal order--to effect the valid extension of a special grand jury. 841 F.2d at 1306. This Court's review of the record in Taylor revealed that Chief Judge McGarr ³ determined in March 1986 that the grand jury had not yet completed its business. Id. at 1309. On the basis of his finding, we held that the grand jury was validly extended until October 1986. Id. But we also went on to state:

The [Special October] 1984 Grand Jury, however, continued to sit until February of 1987--four months beyond its initial extension. The record before us does not reflect whether a judicial determination was made, prior to the expiration of the 1984 Grand Jury's first extension, that it had unfinished business. Further, it is not clear from the record on which date in October, 1984 the 1984 Grand Jury was impaneled. The Grand Jury indicted Clemenic on October 14, 1986, returning a superseding indictment against him on January 6, 1987, and a second superseding indictment on January 13, 1987. We therefore remand Clemenic's case to the district court for a determination of whether his original indictment was returned less than 24 months after the October 1984 impanelment date; and whether there is any evidence that a judicial determination was made prior to the expiration of its first extension that the 1984 Grand Jury had not finished its business.

* * *

* * *

We remand for a determination of whether, consistent with this opinion, any of Clemenic's indictments were valid.

Id. (Emphasis added).

On remand, the government asked Chief Judge Grady (who was chief judge at the time of the first extension's expiration in October 1986) to make a finding as to whether he had made a judicial determination, prior to the expiration of the first extension of the grand jury on October 1, 1986, that the grand jury had not finished its business. On June 17, 1988, Chief Judge Grady entered a "Ruling on Government's Request for a Finding," stating:

There is ample evidence that during September and October of 1986 I believed the grand jury...