U.S. v. McLeczynsky, 01-3018.

• Decision Date: 24 July 2002
• Docket Number: No. 01-3018.,01-3018.
• Citation: 296 F.3d 634
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alex MCLECZYNSKY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

296 F.3d 634

UNITED STATES of America, Plaintiff-Appellee, v. Alex MCLECZYNSKY, Defendant-Appellant.

No. 01-3018.

United States Court of Appeals, Seventh Circuit.

Argued May 17, 2002.

Decided July 24, 2002.

Debra Riggs Bonamici (argued), Office of U.S. Atty., Chicago, IL, for Plaintiff-Appellee.

Donna Hickstein-Foley (argued), Chicago, IL, for Defendant-Appellant.

BEFORE: BAUER, POSNER and KANNE, Circuit Judges.

BAUER, Circuit Judge.

A federal grand jury returned a superseding indictment charging defendant-appellant, Alex McLeczynsky, with four counts of RICO and Hobbs Act violations. Following a jury trial, McLeczynsky was found guilty on three of the four counts. The district court sentenced McLeczynsky to a total term of thirty (30) months. McLeczynsky appeals his conviction and sentence, arguing that Count Two of the indictment inadequately stated the subject offense and that the government referred to his failure to testify in closing argument. Because each of these arguments is without merit, we AFFIRM.

Background

On April 11, 2000, a grand jury returned a superseding indictment charging McLeczynsky with violations of 18 U.S.C. § 1962(d) (RICO conspiracy, Count I); 18 U.S.C. § 1951 (Hobbs Act conspiracy, Count II); and 18 U.S.C. §§ 1951, 1952 (substantive Hobbs Act violations, Counts III and IV). The charges and subsequent conviction stem from his involvement in a conspiracy to extort money from unqualified applicants for the fraudulent issuance of commercial driver's license ("CDL") permits by employees of the Illinois Secretary of State driver's license facility in Melrose Park.

McLeczynsky began actively participating in the conspiracy in 1998, while working as a driving instructor at Viking Driving School in Elk Grove Village, Illinois ("Viking"). Viking shared use of its facilities with two other driving schools, Mega Driving School ("Mega") and Vistula Driving School. Throughout 1997 and 1998, McLeczynsky had repeated contact with a former student, Janusz Krzyzak, who was then working as a driver instructor at Mega.

In the spring of 1998, Krzyzak informed McLeczynsky that it was possible for applicants who could not legitimately obtain CDL permits to get their permits by paying cash bribes to certain employees of the Illinois Secretary of State. After receiving this information, McLeczynsky approached Krzyzak to tell him about some applicants who were willing to pay money in order to obtain their CDL permits. At the time of this initial encounter, Krzyzak responded that the Secretary of State employees with whom he was connected were not currently "accepting applicants."

Sometime in late May or early June of 1998, Krzyzak informed McLeczynsky that the Secretary of State employees were once again accepting applicants. In June, McLeczynsky told Krzyzak that he had applicants who were ready to pay money to obtain permits. In turn, Krzyzak told McLeczynsky that he needed $600 to pass on to a Secretary of State employee, and that he and McLeczynsky could split whatever additional money McLeczynsky was able to extort from the applicants. Operating under these general terms, McLeczynsky and Krzyzak arranged for a total of approximately five unqualified applicants to pay bribes to Secretary of State employees in exchange for fraudulently issued CDL permits from June to September of 1998.

Discussion

A) Sufficiency of the Indictment

We review the sufficiency of an indictment de novo. An indictment is deemed sufficient if it: (1) states the elements of the offense charged; (2) fairly informs the defendant of the nature of the charge so that he may prepare a defense; and (3) enables him to plead an acquittal or conviction as a bar against future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir.2002). Additionally, when determining the sufficiency of an indictment, we look at the contents of the subject indictment "on a practical basis and in [its] entirety, rather than in a hypertechnical manner." United States v. Smith, 230 F.3d 300, 305 (7th Cir.2000) (citations omitted).

McLeczynsky argues that Count II (Hobbs Act conspiracy) of the indictment at issue here is insufficient because it alleged that he was liable as an agent for private individuals who cannot be found guilty of extortion under the Hobbs Act. The Hobbs Act defines extortion as the "obtaining of property from another with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951 (emphasis added). Thus, to survive the test of sufficiency, the superseding indictment must allege that McLeczynsky conspired with, aided and abetted extortion by a public official. See United States v. McClain, 934 F.2d 822, 826-27 (7th Cir.1991) (private individual may be charged with and convicted of extortion under color of official right if that individual conspired or acted in coordination with public officer). The indictment contains these requisite allegations.

When read in its entirety and including the incorporated allegations from Count I, Count II describes in great detail McLeczynsky's role as an intermediary between bribe payors and payees who, for personal profit, participated in a scheme by which corrupt Secretary of State employees obtained cash payments in exchange for their assistance in issuing fraudulent CDL permits to unqualified applicants. While McLeczynsky's role as an intermediary may properly be characterized as that of a "double agent," it is the nature of his relationship with the Secretary of State employees, not those private individuals who paid cash for a fraudulent CDL permit, that matters for purposes of determining his potential and ultimate liability under the Hobbs Act. See McClain, 934 F.2d at 827 (intermediary between private individuals and public officers in illegal extortion scheme may be liable as coconspirator); see also United States v. Wright...