U.S. v. McManigal
| Citation | 708 F.2d 276 |
| Decision Date | 20 July 1983 |
| Docket Number | No. 82-1754,82-1754 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald P. McMANIGAL, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Matthias A. Lydon, John A. Dienner, III, Pierce, Lydon, Griffin & Montana, Chicago, Ill., for defendant-appellant.
John Podliska, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and HOFFMAN, Senior District Judge. *
This is an appeal from a conviction after a jury trial for mail fraud and racketeering in violation of 18 U.S.C. Secs. 1341 and 1962(c). Counts One through Fifteen of the indictment charged that from December 1974 through December 1981 defendant McManigal, a Chicago attorney, knowingly participated in a scheme to defraud Cook County and its citizens of their right to the loyal, faithful and honest services of Thomas Lavin and James Woodlock, two employees of the Cook County Board of Tax Appeals; their right to have the business of the Board conducted honestly, fairly and impartially, free from corruption, collusion, partiality, dishonesty, bribery and fraud; and their right to have real estate property taxes assessed and collected free from the influence of corruption, collusion, partiality, dishonesty, bribery and fraud. The indictment charged that pursuant to the scheme the defendant caused The Law Offices of Victor J. Cacciatore to obtain $249,250 in legal fees and that the defendant used the mails in furtherance of the scheme to defraud.
Count Sixteen alleged that The Law Offices of Victor J. Cacciatore was an "enterprise" as defined in 18 U.S.C. Sec. 1961(4); that at all times material to the indictment defendant McManigal was associated in fact with the enterprise; and that bribery was a felony under Illinois law and that mail fraud was a crime under federal law. The indictment charged that from December 1974 through December 1981 defendant knowingly conducted and participated in the conduct of the affairs of The Law Offices of Victor J. Cacciatore through a pattern of racketeering activity by committing multiple acts of mail fraud involving the mailing of property tax bills, and by committing multiple acts of bribery involving payments of bribes to Board officials Lavin and Woodlock for the purpose of influencing them in the performance of acts related to their public employment, all in violation of 18 U.S.C. Sec. 1962(c).
Paragraph eight of Count Sixteen sought forfeiture under 18 U.S.C. Sec. 1963(a)(1) of McManigal's interest in the $249,250 in legal fees as an interest acquired and maintained by defendant pursuant to a pattern of racketeering activity. Paragraph nine sought forfeiture on the alternative theory under 18 U.S.C. Sec. 1963(a)(2) that the fees were an interest in the enterprise, to wit, accounts receivable of The Law Offices of Victor J. Cacciatore.
The jury found the defendant guilty on all counts and further found that his 40% interest in the $249,250 in fees, or $99,700, was subject to forfeiture. The district court entered judgment on the verdict, sentenced defendant to eighteen months in prison to run concurrently on all counts, and ordered forfeiture of $99,700 to the United States. Defendant challenges both his conviction and the forfeiture on appeal.
The evidence presented at trial was as follows: During the period of the prosecution, from 1974 through 1981, the Cook County Board of Appeals ("Board") reviewed and decided the merits of complaints filed by Cook County taxpayers challenging their real estate property tax assessments. Each petition for review was entitled to a hearing before a hearing officer, who was authorized to recommend but not to grant an assessment reduction. After the hearing, the file would be forwarded to the Board's commissioners and deputy commissioners for review and a final decision. Seymour Zaban and Harry Semrow were the two elected commissioners of the Board during the relevant period. The concurrence of both commissioners was required to enter an order to change the assessment. Each commissioner was assisted by appointed deputy commissioners. Until approximately January 1978 government witness Thomas Lavin was Semrow's deputy commissioner, and until the latter part of 1978 government witness Donald Erskine was Zaban's deputy commissioner. Both deputies had authority to recommend assessment reductions to the commissioners and to approve assessment reductions on certain types of smaller properties. When a deputy exercised his approval authority, he signed the initials of his commissioner on the file jacket and added his own initials to maintain a record that he had acted for his commissioner.
After a commissioner decided to reduce a particular assessment, he would enter the approximate amount of the reduction and his initials on the file jacket. It would then be sent to the Board's computer section for an exact computation of the amount of the reduction. From January 1975 through January 1980 the supervisor of the Board's computer section was government witness James Woodlock. After the computation, Woodlock would return the file to the secretary of the commissioner who had approved the reduction, and the secretary would initial the complaint form. Woodlock would then take the file to the second commissioner for his review. If the second commissioner approved, his secretary would enter his initials on the complaint form. Only the initials of the first commissioner on the file jacket were the official authorization of a reduction; the initials of both commissioners on the complaint form were merely administrative.
Before meeting defendant McManigal in this case, deputy commissioners Lavin and Erskine and computer programmer Woodlock had previously devised a scheme to grant assessment reductions fraudulently in return for payments of money and other things of value. Lavin would forge assessment reductions and forge Semrow's approval initials on Board files without adding his own initials to the Board file jacket. He would then give the forged file to Woodlock who would calculate the exact amount of reduction and take the files to Commissioner Zaban's side of the office. Instead of leaving the forged files to be reviewed by Zaban, Woodlock would add them to the stack of files which had already been reviewed and approved by Zaban and were awaiting the secretary's placing of Zaban's initials on the complaint form. Woodlock would process Lavin's forged files in return for Lavin entering forgeries on files for which Woodlock was receiving money, and Donald Erskine would cooperate in the same manner on Zaban's side of the office.
The defendant met Lavin in late 1974 during a meeting with Semrow to discuss McManigal's lack of success on complaints filed at the Board. Semrow asked Lavin to show McManigal how to put petitions together to make a more presentable case. Lavin did so and suggested that McManigal give him a list of pending cases. Lavin fraudulently processed some of those files. Until Lavin left the Board in 1978, McManigal continued to provide lists of his cases to Lavin, to take Lavin to lunch or dinner several times a year, and to give Lavin envelopes containing small denomination old bills. McManigal and Victor Cacciatore contributed to several payments to Lavin in the same proportion that they split fees. After Lavin left the Board, he continued to forge files with the assistance of other Board employees. Lavin stated that McManigal never asked him to do anything improper with his files, and never offered him a percentage-of-fee arrangement.
Erskine testified that McManigal once requested him to approve a late filing of a tax appeal petition, and that after he agreed to do so, McManigal offered him a twenty-dollar bill. Erskine refused. In addition, he testified that McManigal offered to pay him 5% of his billings if Erskine would handle all of his complaints, an offer which Erskine refused again. Erskine testified that he received $150,000 in bribes from approximately twenty practitioners during his tenure at the Board.
Woodlock was introduced to McManigal by Lavin in 1976 or 1977. In 1978, McManigal assisted Woodlock in obtaining a $7100 loan for two or three days from Victor Cacciatore. Woodlock received Christmas gifts of cash in 1978 and 1979. At one point Woodlock testified that McManigal told him of his arrangement with Lavin whereby McManigal was paying Lavin 15% of the fees that he charged. Lavin denied this arrangement. According to Woodlock, since Lavin was no longer at the Board McManigal offered to split the 15% evenly between Woodlock and Lavin. Later, in December 1979, McManigal told Woodlock that he was not paying Lavin any more and would give the full 15% to Woodlock. McManigal also gave $2500 to Woodlock in 1979 to cover construction loan interest on Woodlock's home. McManigal arranged a meeting for himself, Woodlock and Michael Andry, a longtime friend of McManigal's and one of the contractors on Woodlock's home. McManigal gave $2500 in cash to Andry, and Andry wrote a check to Woodlock for the same amount. Although loan documents and a repayment schedule were drawn up, Woodlock testified that McManigal told him later that he did not have to make payments, but should simply make notations on the repayment schedule on a regular basis showing that payments had been made.
After Woodlock agreed to cooperate with the government, he attended a meeting of McManigal and Andry wearing a concealed recorder. McManigal asked what the federal investigators wanted to know and what Woodlock told them. McManigal acknowledged giving $2500 to Woodlock, in addition to a couple of hundred two or three different times, and spending at least $2000 in one year for meals for Woodlock. McManigal stated...
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