U.S. v. Glecier

• Decision Date: 01 February 1991
• Docket Number: No. 88-3417,88-3417
• Citation: 923 F.2d 496
• Parties: RICO Bus.Disp.Guide 7661, 31 Fed. R. Evid. Serv. 1517 UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. GLECIER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 496

923 F.2d 496

RICO Bus.Disp.Guide 7661, 31 Fed. R. Evid. Serv. 1517

UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. GLECIER, Defendant-Appellant.

No. 88-3417.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 28, 1990.

Decided Jan. 8, 1991.

Rehearing and Rehearing En Banc Denied

Feb. 1, 1991.

Thomas M. Durkin, Rocco J. DeGrasse, Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Jeffrey B. Steinback, Genson, Steinback & Gillespie, Chicago, Ill., William Hedrick, Skokie, Ill., for defendant-appellant.

Daniel P. Glecier, Chicago Ridge, Ill., pro se.

Before BAUER, Chief Judge, POSNER and MANION, Circuit Judges.

BAUER, Chief Judge.

In one of the last "Greylord" cases to make its way through our court, Daniel P. Glecier, a former judge of the Fifth Municipal District of the Circuit Court of Cook County, appeals his conviction for RICO conspiracy. Glecier raises a number of challenges to his conviction, only a handful of which merit discussion. ¹ None of Glecier's discussion-worthy challenges are particularly fact intensive. Thus, we will forego a lengthy recitation of the facts and instead briefly review any necessary background in the course of disposing of the issues.

I. The Indictment

On March 16, 1988, the September 1986 Grand Jury returned a superseding indictment charging Glecier and nine co-defendants with fifteen counts of conspiracy, mail fraud and tax violations. The only portion of the indictment that names Glecier is Count One, which, as we discuss in detail below, charges him with conspiring to violate provisions of Illinois law in a context that implicates the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 18 U.S.C. Sec. 1962(d). Nowhere in the indictment is Glecier charged with personally committing predicate acts that implicate RICO.

Because Glecier's primary arguments on appeal center on the indictment, we will examine Count One in some detail. Count One begins by identifying the "enterprise" (the Circuit Court of Cook County), as well as the named co-conspirators and defendants and their positions. Paragraph 1(d)(2) identifies Glecier as "an Associate Judge assigned to the Fifth Municipal District from approximately July 23, 1979 to September 28, 1979 and again from approximately December, 1980 to December, 1987." (Glecier spent part of the time between these periods on assignment to Branch 27 at Harrison and Kedzie, outside of the Fifth District.) After identifying all the players and reproducing the Illinois statutes criminalizing bribery and official misconduct, Count One charges the following:

From in or about June, 1977 to in or about September, 1983, at Chicago Ridge, Oak Lawn, Justice, Worth, Summit, and elsewhere, in the Northern District of Illinois, Eastern Division, [Glecier and seven other defendants], being associated with an enterprise [the Circuit Court of Cook County], did knowingly conspire and agree, together with Roger Seaman [another defendant], and other judges assigned to the Fifth Municipal District, as well as Cary N. Polikoff [the last defendant], William H. Kampenga, Hugo Arquilla, and others known and unknown to the Grand Jury, to conduct and participate in the conduct of the affairs of the Circuit Court of Cook County, directly and indirectly, through a pattern of racketeering activity, as that term is defined in [18 U.S.C. Sec. 1961], said racketeering activity consisting of multiple acts involving bribery under [Ill.Rev.Stat. ch. 38, secs. 33-1 & 33-3].

Count One goes on to describe the role played by defendant John W. Brady, a former assistant state's attorney, in the solicitation of willing participants in the scheme. Brady is alleged to have recruited both judges and attorneys in the Fifth Municipal District to take part in cash bribes. It is then alleged that Glecier participated in this scheme before he assumed the bench:

It was further part of the conspiracy that certain corrupt attorneys who practiced in the Fifth Municipal District, including JOHN W. BRADY, [five other defendants] and DANIEL P. GLECIER, as well as Cary N. Polikoff, William H. Kampenga, Hugo Arquilla, James J. Costello, Joseph McDermott, and others discussed at various times, among one another and with others, which judges, prosecutors and police officers would and did accept cash bribes from attorneys in exchange for favored treatment or to otherwise influence them in the performance of acts related to their employment and function as judges, prosecutors, and police officers in the Fifth Municipal District.

Count One then describes how judges in the Fifth District [Glecier is not mentioned by name] solicited and accepted bribes for "steering" cases involving unrepresented defendants to attorneys who paid for that favor. Finally, in two of the last paragraphs in Count One, Glecier is again mentioned by name. Paragraph 10 lists him as one of the Fifth District judges who "did at various times unlawfully accept cash bribes from or on behalf of attorneys, including [six of the named defendants] and others known and unknown to the Grand Jury, pursuant to an understanding that they would be influenced in, and knowing that the cash bribes were tendered with the intention of influencing them in, the performance of acts related to their employment and function as judges." Paragraph 11 returns to Glecier's days as a trial lawyer, including his name in the list of attorneys from whom assistant state's attorneys Costello, Polikoff and Brady accepted bribes.

Glecier has alleged that, by failing to specify individual predicate acts of racketeering (i.e., listing the specific bribes by date and/or case name) about which Glecier is supposed to have conspired, the indictment violated the fifth and sixth amendments, Rule 7(c)(1) of the Federal Rules of Criminal Procedure, and the standards for RICO indictments we discussed in United States v. Neapolitan, 791 F.2d 489 (7th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986). Glecier first raised these challenges in a pre-trial motion to dismiss the indictment. In an order dated June 10, 1988, the district court denied that motion and ruled that Count One was sufficiently specific and informative under the legal standards for indictments. The court explicitly rejected Glecier's argument that, under Neapolitan, the specific predicate acts to which a RICO conspiracy defendant is alleged to have agreed constitute elements of the offense or otherwise must be set forth in a RICO conspiracy indictment. Glecier charges error in these conclusions. As the issue here is the legal sufficiency of the indictment, we will review the matter afresh; although we note that "[i]n reviewing the sufficiency of an indictment, a court should consider the challenged count as a whole and should refrain from reading it in a hypertechnical manner." United States v. Gironda, 758 F.2d 1201, 1209 (7th Cir.1985) (citations omitted).

The fifth amendment, with exceptions not relevant here, limits the power of the federal government to hold someone to answer for a felony "unless on a presentment or indictment of a Grand Jury." U.S. CONST. amend V. The sixth amendment then grants to all persons accused by the federal government of a crime several basic rights, including the right "to be informed of the nature and cause of the accusation." U.S. CONST. amend VI. The courts have long held that these broad principles break down into three requirements (sometimes grouped as two requirements, see, e.g., Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)) for the sufficiency of an indictment: "The defendant is entitled to an indictment that states all of the elements of the offense charged, informs him of the nature of the charge so that a defense can be prepared, and enables the defendant to evaluate any possible double jeopardy problems presented by the charge." Neapolitan, 791 F.2d at 500-01 (citations omitted). The RICO conspiracy count in the instant indictment meets these requirements. ²

First, Count One properly alleges all the essential elements of RICO conspiracy. For purposes of clarity, we should note that "RICO conspiracy," strictly speaking, is a misnomer, insofar as it is used to imply a special substantive offense different from any other conspiracy under 18 U.S.C. Sec. 371. ³ All that 18 U.S.C. Sec. 1962(d), the "RICO conspiracy statute," provides is that it is unlawful "to conspire to violate any of the provisions of subsections (a), (b) or (c) of this section." Section 1962(c), the familiar "substantive" RICO provision, criminalizes the participation in the affairs of an enterprise affecting interstate commerce through a pattern of racketeering activity. Section 1962(d), like all conspiracy provisions, has as its target the act of agreement--here, the agreement to engage in activity that implicates section 1962(c). Accordingly, to list adequately the elements of section 1962(d), an indictment need only charge--after identifying a proper enterprise and the defendant's association with that enterprise--that the defendant knowingly joined a conspiracy the objective of which was to operate that enterprise through an identified pattern of racketeering activity (here, the "pattern" being multiple acts of bribery prohibited by specified provisions of the Illinois criminal code). Neither overt acts, United States v. Torres Lopez, 851 F.2d 520, 525 (1st Cir.1988), nor specific predicate acts that the defendant agreed personally to commit, Neapolitan, 791 F.2d at 495-98, need be alleged or proved for a section 1962(d) offense. As the above-quoted sections of Count One demonstrate, the instant indictment contains these requisite elements.

The indictment also satisfies the second and third requirements for indictment sufficiency. By specifying the time period during which the alleged conspiracy operated, the locations and courts, the...