U.S. v. Shields, s. 92-1683

• Citation: 999 F.2d 1090
• Decision Date: 27 August 1993
• Docket Number: Nos. 92-1683,92-2237,s. 92-1683
• Parties: 38 Fed. R. Evid. Serv. 496 UNITED STATES of America, Plaintiff-Appellee, v. David J. SHIELDS and Pasquale F. DeLeo, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1090

999 F.2d 1090

38 Fed. R. Evid. Serv. 496

UNITED STATES of America, Plaintiff-Appellee, v. David J. SHIELDS and Pasquale F. DeLeo, Defendants-Appellants.

Nos. 92-1683, 92-2237.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 1993.

Decided July 14, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Aug.

27, 1993. ^*

Barry R. Elden, Asst. U.S. Atty., Mark S. Hersh (argued), Crim. Receiving, Appellate Div., Chicago, IL for plaintiff-appellee in No. 92-1683.

Dan K. Webb (argued), Steven F. Molo, James F. Hurst, Timothy P. O'Connor, Winston & Strawn, Chicago, IL, for defendant-appellant in No. 92-1683.

Michael J. Shepard, Asst. U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Mark S. Hersh (argued), Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee in No. 92-2237.

Allan A. Ackerman (argued), Joelle Hollander, Samuel V.P. Banks, Law Offices of Samuel V.P. Banks, Chicago, IL, for defendant-appellant in No. 92-2237.

Before CUMMINGS and EASTERBROOK, Circuit Judges, and TIMBERS, Senior Circuit Judge. ^**

CUMMINGS, Circuit Judge.

A jury convicted David J. Shields, chief judge of the Chancery Division of the Circuit Court of Cook County, Illinois, of taking $5,000 or perhaps $6,000 from a lawyer named Pasquale F. DeLeo to fix a case. Shields was sentenced by Judge Rovner to thirty-seven months in prison plus three years of supervised release; DeLeo got a thirty-three-month sentence and two years of supervised release. ¹ Shields' defense at trial, and the focus of his appeal to this Court, is that as a judge with twenty years' experience on the bench and an impeccable (until now) reputation, he simply made no deal and took no money. The whole enterprise, according to Shields, was a scam by DeLeo to extract money from another lawyer; Shields knew nothing about it. This other lawyer, it turned out, was a government informer.

We grant the validity of Shields' argument that the government's case lacks the kind of unassailable clarity one might wish to see in a prosecution of this sort: photographs of cash changing hands, tapes of co-conspirators talking about how they are going to spend the money, a parade of witnesses corroborating the illicit transaction. Nevertheless, the United States amassed a credible and coherent case against both defendants. Because we think the evidence was more than sufficient for a rational jury to conclude that Shields and DeLeo are guilty, and because their other legal arguments lack merit, we affirm their convictions.

The bribery investigation was originally targeted not at Shields but at another judge who was thought corrupt, or corruptible. Robert Cooley, a lawyer-turned-government-informer with longstanding involvement in Cook County graft and dishonesty, sought to fix a fictional case called Nichols v. Wilson in which Nichols claimed that his partner Wilson improperly took $350,000 in partnership funds. In his trial testimony, Cooley claimed to have bribed in his robust career at least twenty-nine Cook County judges as well as prosecutors, court clerks, police officers, corporation counsels, state's attorneys, a police chief and a mayor before deciding on his own initiative--no investigation against him was pending at the time--to assist the FBI as an informer in ensnaring corrupt Chicago officials. In this sting operation Cooley represented the non-existent Nichols whose partner had absconded with the funds. After the case was randomly assigned to Shields, Cooley tried unsuccessfully to have it moved onto the docket of another judge. On August 16, 1988, Cooley asked DeLeo, his former law partner, to help him transfer Nichols v. Wilson, but DeLeo told him a transfer was not necessary because Shields could be bribed and that he, DeLeo, would do the bribing. This must have come as a surprise to Cooley because, according to his testimony, he thought Shields was honest and this view was confirmed by a well-known fixer, who told him he would not go near Shields "with a ten-foot pole" (joint supp. app. at D 28). As the defense points out repeatedly, Shields had a good reputation among Cook County judges; his only "indiscretion" was trying to talk his way out of a drunk-driving arrest by showing his judicial identification to the police. (In that instance he was cleared of judicial misconduct charges.) In any event, Cooley and DeLeo agreed to offer $2,500 to Shields to impose a temporary restraining order ("TRO") against make-believe-defendant Wilson to prohibit him from touching the contested partnership assets. This much neither DeLeo nor Shields disputes.

Shields, however, claims that DeLeo never meant to pass the money to the judge. The theory of his defense was that DeLeo knew upon hearing only a few sentences about Nichols v. Wilson that Cooley's client Nichols would win. Thus he made a quick calculation that he could assure Cooley of Shields' cooperation and pocket the money himself, secure in the knowledge that the judge would rule on his own initiative in Nichols' favor. With relatively minor exceptions, the rest of the facts in the case are not contested but take on opposite meanings depending on whether one believes the government or the defense. In the view of the prosecution, subsequent events, including favorable rulings by Shields, are evidence that the judge was bribed. In the view of the defense, subsequent events prove only that DeLeo was especially clever in scamming Cooley, his former law partner.

Those events include a phone call in Cooley's car on August 17, 1988, the day after DeLeo first broached the subject of bribing Shields. The case was going to court in two days and the conspirators (in reality, one conspirator and one FBI informer) did not know whether Shields would be on the bench. DeLeo dialed Shields' office on Cooley's car phone. Cooley could hear the secretary answer on the speakerphone, then DeLeo picked up the receiver and had a conversation, purportedly with Shields, during which the deceitful lawyer arranged a meeting with the judge. According to the defense, DeLeo was faking the conversation--no one, or at least not Shields, was on the other end of the line. But the defense does not explain why DeLeo would have taken such a risk when he plainly did not have to.

DeLeo also did not take the $2,500 supplied by the FBI that Cooley offered him in the car but waited until the morning of the TRO hearing. The prosecution contends that if DeLeo had been conning Cooley, he would have taken the money at the first opportunity. To the defense, his reluctance was the work of a genius swindler, proving to Cooley that he had no personal interest in the money. On the morning of the TRO hearing, August 19, 1988, DeLeo took the cash from Cooley in a bathroom on the twenty-fourth floor of the Richard J. Daley Center in Chicago, then walked off in the direction of Shields' chambers. He did not enter, according to the FBI agents who were watching. DeLeo later told Cooley that he had seen the judge but that Shields didn't want the money until the case was over. The government explains this non-event--the failure of DeLeo to hand Shields money--as normal caution since even a crooked judge cannot afford to make blatantly lopsided rulings; thus the payoff was delayed until it was clear a favorable judgment was possible. Money or no, Shields went to the bench that morning and granted the TRO Cooley wanted for his make-believe client.

DeLeo told Cooley later that he had managed to get the money to the judge. Cooley then said he wanted to convert the expiring TRO into a preliminary injunction and the two agreed to pay Shields another $2,500. DeLeo promised to talk to Shields before the next scheduled hearing--and he did. He waited for Shields in a City Hall corridor on August 30, 1988. The two shook hands and walked to the corner of Washington and LaSalle streets, where they stood talking for a couple of minutes longer. The judge returned to his courtroom, called the lawyers into chambers to discuss settlement, and when the attorneys could not agree granted the preliminary injunction Cooley's client sought.

The defense claims that it was not unusual for DeLeo to have a conversation with Shields since the two had been casual acquaintances for ten years, and that they were not discussing Nichols v. Wilson but two other matters, including the reassignment of a divorce court judge who was a friend of DeLeo's, and the divorce of DeLeo's cousin, whom Shields knew slightly. After the August 30, 1988, hearing and settlement conference, DeLeo demonstrated knowledge in his discussions with Cooley that he could only have garnered by talking to the judge. For example, DeLeo knew that Shields would press the litigants to settle. It was quite reasonable, then, for the jury to conclude that Shields and DeLeo had discussed the case and, given the defense's theory, to deduce that they had schemed to resolve it in Cooley's client's favor.

Cooley gave DeLeo a second $2,500 on August 31, 1988, and DeLeo tried to see Shields that morning. The judge, however, was on the bench. Later DeLeo went to Shields' chambers carrying an accordion folder, inside of which was a large white envelope containing either the bribe (according to the prosecution) or pleadings in the divorce case of DeLeo's cousin (according to the defense). Since DeLeo had no reason to believe Cooley was following him, these attempts to see Shields (after he told Cooley he would) do not comport with the defense's contention that DeLeo was merely pulling a fast one against his former law partner. The actual conversation between Shields and DeLeo, recorded by the FBI, was elliptical but included the damning statement, apparently by DeLeo, that it was "nice to have an inside track" (Shields' supp. app. at C 1).

The next hearing was scheduled for September 2, 1988. In the meantime, the fictional defendant Wilson in Nichols v. Wilson filed an emergency motion...