U.S. v. Rezko
| Decision Date | 03 March 2011 |
| Docket Number | No. 05 CR 691.,05 CR 691. |
| Citation | 776 F.Supp.2d 651 |
| Parties | UNITED STATES of America, Plaintiff,v.Antoin REZKO, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION TEXT STARTS HERE
Carrie E. Hamilton, Christopher Niewoehner, Jacqueline O. Stern, Reid J. Schar, Joseph M. Ferguson, United States Attorney's Office, James E. Barz, Mayer Brown LLP, United States Attorney's Office, Chicago, IL, for Plaintiff.Joseph J. Duffy, Mariah E. Moran, William Paul Ziegelmueller, Stetler & Duffy, Ltd., Chicago, IL, for Defendant.
AMY J. ST. EVE, District Judge:
Defendant Rezko moves for a new trial based on the Supreme Court's recent decisions in Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), and Black v. United States, ––– U.S. ––––, 130 S.Ct. 2963, 177 L.Ed.2d 695 (2010). Defendant's motion is denied.
On June 4, 2008, a jury convicted Defendant Antoin Rezko of sixteen counts charged in the Superseding Indictment after over three months of trial and over two weeks of jury deliberations. Specifically, the jury convicted Defendant on twelve counts of honest services fraud (Counts 1, 2, 4–6, 7–8, and 11–15), two counts of aiding and abetting bribery (Counts 17 and 20), and two counts of money laundering (Counts 23 and 24). The jury acquitted Defendant Rezko on eight separate counts, including three honest services fraud counts (Counts 3, 9, 10), four bribery counts (Counts 18, 19, 21, 22), and attempted extortion (Count 16).
The jury convicted Defendant Rezko for participating in a scheme to defraud the people of the State of Illinois that he carried out with Stuart Levine and others. Specifically, Defendant Rezko was convicted of using his influence with Governor Rod Blagojevich's administration and Stuart Levine's membership on two State of Illinois boards to influence the actions of these boards for private gain. Stuart Levine was a member of both 1) the Board of Trustees of the Teacher's Retirement System of the State of Illinois (“TRS”), a public pension plan that provided benefits for teachers employed by the Illinois public schools, and 2) the Illinois Health Facilities Planning Board (“Planning Board”), an Illinois State board that reviewed applications submitted by hospitals that wanted to build new facilities in Illinois. The jury convicted Rezko of defrauding the beneficiaries of TRS and the people of the State of Illinois of the honest services of Stuart Levine as a board member of TRS and the Planning Board. Rezko and Levine further used Rezko's influence with the Blagojevich administration and Levine's roles on these boards to influence the actions of TRS and the Planning Board for the benefit of themselves and others, and to carry out the scheme. The jury also convicted Defendant Rezko of two counts of aiding and abetting bribery (Counts 17 and 20). Both of the bribery counts had corresponding honest services fraud counts. In addition, the jury convicted Defendant of two counts of money laundering—Counts 23 and 24—that related to the transaction underlying the honest services fraud convictions charged in counts 1 and 2.
On November 12, 2008, the Court denied Defendant Rezko's motion for judgment of acquittal or in the alternative for a new trial. (R. 632.) Defendant subsequently asked the Court to strike the January 6, 2009 sentencing date. (R. 646.) Since that time, the parties have repeatedly asked the Court to delay Defendant's sentencing date, presumably because of Defendant's potential cooperative efforts. On November 4, 2010, Defendant asked for a sentencing date, although the parties subsequently jointly asked the Court to strike the date and move it to the Fall 1. On November 18, 2010, Defendant filed another motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 based on the Supreme Court's rulings regarding honest services fraud in Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), and Black v. United States, ––– U.S. ––––, 130 S.Ct. 2963, 177 L.Ed.2d 695 (2010). After the parties briefed the motion, the Court held oral argument on January 28, 2010.
Under Federal Rule of Criminal Procedure 33, a district court “may vacate any judgment and grant a new trial if the interest of justice so requires.” United States v. McGee, 408 F.3d 966, 979 (7th Cir.2005). A court may also grant a new trial “in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial.” United States v. Eberhart, 388 F.3d 1043, 1048 (7th Cir.2004) (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir.1989)), overruled on other grounds by Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005).
Defendant argues that he is entitled to a new trial based on the Supreme Court's recent opinions in Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 2931, 177 L.Ed.2d 619 (2010), and Black v. United States, –––U.S. ––––, 130 S.Ct. 2963, 2968, 177 L.Ed.2d 695 (2010) because one of the honest services fraud jury instructions given at his trial was erroneous in light of the change in law. Defendant further argues that the error was not harmless because it enabled the jury to convict him on an honest services fraud theory that the Supreme Court has declared is no longer good law.
Before proceeding to the merits of Defendant's motion, the Court first addresses the timing of it. Under Federal Rule of Criminal Procedure 33, a defendant must file a motion for a new trial within fourteen days after the guilty verdict if the motion is not grounded on newly discovered evidence. See Fed.R.Crim.P. 33(b)(2). The parties do not dispute that Defendant Rezko failed to file his new post-trial motion within fourteen days of the June 4, 2008 jury verdict. Given that the Supreme Court's rulings upon which Defendant relies did not issue until June 24, 2010, Defendant could not have filed this motion fourteen days after the verdict. Defendant instead filed the motion on November 18, 2010, approximately five months after the Supreme Court's ruling in Skilling and Black, and three weeks after the Seventh Circuit's ruling on the Black remand from the Supreme Court. Defendant informed the Court and the government of his intention to file such a motion on November 4, 2010—six days after the Seventh Circuit's opinion in Black.
The government argues that the motion is untimely because Rezko made a strategic decision to delay the filing and that the decision does not constitute “excusable neglect” justifying its delay. According to the government, “nothing prevented Rezko from filing his motion promptly after the Supreme Court issued its decision” in Black and “there was no reason to expect that the decision on remand in that case would provide guidance regarding the honest services instructions in this case.” (R. 709, Sur-reply at 2.)
Defendant maintains that because the Court granted him leave to file the new post-trial motion at the November 4, 2010 status hearing, the Court extended the time for the post-trial motion on its own initiative. In support of this argument, Defendant relies on Rule 45(b)(1), which states:
(1) When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party's motion made:
(A) before the originally prescribed or previously extended time expires; or
(B) after the time expires if the party failed to act because of excusable neglect.
Fed.R.Crim.P. 45(b)(1). Contrary to Defendant's assertion, the Court's minute entry allowing him to file the present post-trial motion does not amount to the Court acting “on its own” to “extend the time” period, especially because the parties did not raise any timeliness issues at the November 4, 2010 status hearing.
In the alternative, Defendant argues that his post-trial motion is timely because it was the result of excusable neglect pursuant to Rule 45(b)(1). “The Supreme Court in Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) listed the factors a district court should consider when evaluating a claim of excusable neglect, which include the danger of prejudice to the defendant, and the reason for the delay.” Murphy v. Eddie Murphy Prods., Inc., 611 F.3d 322, 324 (7th Cir.2010); see also Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir.2006) (). More specifically, the “standard for reviewing whether neglect was ‘excusable’ is an equitable one, taking into consideration relevant circumstances, including (1) the danger of prejudice to the non-moving party; (2) the length of the delay and its impact on judicial proceedings; (3) the reason for the delay (i.e., whether it was within the reasonable control of the movant); and (4) whether the movant acted in good faith.” McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir.2008); see also Pioneer Inv. Servs., 507 U.S. at 395, 113 S.Ct. 1489 (). Appellate review of a district court's excusable neglect determination is for an abuse of discretion. See McCarty, 528 F.3d at 544; Raymond, 442 F.3d at 606.
Defendant Rezko argues that the reason for his delay under the first Pioneer factor weighs in his favor because he has been cooperating with the government and agreed to delay sentencing while remaining incarcerated. Moreover, during the two years he has been incarcerated, the Supreme Court narrowed the scope of the honest services fraud statute, 18 U.S.C. § 1346, upon which he was convicted. See Skilling v. United States, 561 U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), and Black v. United States, 561...
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