U.S. v. Stillo

• Decision Date: 05 July 1995
• Docket Number: Nos. 94-2678,94-2679,s. 94-2678
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adam STILLO, Sr. and Joseph T. Stillo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 553

57 F.3d 553

UNITED STATES of America, Plaintiff-Appellee, v. Adam STILLO, Sr. and Joseph T. Stillo, Defendants-Appellants.

Nos. 94-2678, 94-2679.

United States Court of Appeals Seventh Circuit.

Argued April 5, 1995.

Decided June 9, 1995.

Rehearing Denied July 5, 1995.

Scott T. Mendeloff, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Div., Chicago, IL, Barry Rand Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, Jonathan Drimmer (argued) Dept. of Justice, Washington, DC, for U.S.

Charles K. Piet (argued), Chicago, IL, Michael D. Ettinger, Ettinger & Pechter, Palos Hills, IL, for Adam Stillo, Sr.

Edward M. Genson, Marc W. Martin (argued), Genson, Steinback, Gillespie & Martin, Chicago, IL, for Joseph T. Stillo.

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

CUMMINGS, Circuit Judge.

On July 29, 1993, a jury found Judge Adam Stillo guilty of racketeering and, along with his nephew, lawyer Joseph Stillo, conspiracy to commit extortion under color of official right. Both counts were based on Judge Stillo's corruption of the Cook County, Illinois, Circuit Court. Defendants appeal their convictions. We affirm.

Background

Defense attorney Robert Cooley first met Judge Stillo at a party in 1976. Cooley asked the judge whom he should see to fix a criminal case assigned to Judge Stillo. Judge Stillo, knowing that Cooley was a frequent supplier of bribes to other judges and public officials, told Cooley that he would deal with him directly. Not long after the party, Judge Stillo accepted a bribe from Cooley to fix a misdemeanor case. Judge Stillo met with Cooley before trial and agreed to find Cooley's client not guilty. After the trial Cooley met with Judge Stillo in his chambers. Cooley asked the judge whether $100 was an appropriate payment. Judge Stillo responded: "Whatever you think" and accepted the $100 in cash.

Between 1977 and 1983, Cooley bribed Stillo in five or six cases. Cooley would meet with the judge before trial and after a favorable disposition, Cooley would visit the judge in his chambers and pay him $100-$200 for fixing a misdemeanor and $1000-$2000 for fixing a felony. After the federal investigation into corruption among Chicago public officials became known in 1983, Cooley ceased paying bribes to Judge Stillo.

On August 4, 1986, Cooley, now working with the FBI, inquired of Judge Stillo if he was still accepting bribes for favorable rulings. The judge said yes and that the system was the same as before. In order to catch Judge Stillo in the act, the FBI filed the fictitious case of People v. Hess on August 20, 1986. According to the fictional court papers, James Hess--played by an undercover FBI agent--had been stopped for speeding and an illegal lane change by an Illinois state trooper. Noticing open beer cans, the trooper had searched the car and discovered marijuana.

The Hess trial was set for October 21, 1986, before Judge Stillo. On October 6, Cooley visited the judge in his chambers and asked whether he would suppress the marijuana in exchange for a bribe to which Judge Stillo agreed. Judge Stillo told Cooley that to "make it look better" he should file a memorandum of law in support of his motion to suppress. Judge Stillo told Cooley not to worry and to speak to his nephew attorney Joseph Stillo. Thereafter, Cooley telephoned Joseph Stillo and arranged a meeting. On October 10, 1986, the two met. Joseph Stillo told Cooley that he had spoken to his uncle, Judge Stillo. Joseph Stillo and Cooley then went to lunch to arrange to fix the Hess case.

Over lunch, Cooley explained the "facts" of the Hess case to Joseph Stillo and that he wanted to have the marijuana suppressed. Joseph Stillo agreed. Cooley also told Joseph Stillo that he would pay any amount the Stillos deemed fair, to which Joseph Stillo also agreed. Cooley and Joseph Stillo arranged for Cooley to call Joseph Stillo the day before Hess was to go to trial and say "The party is tomorrow night. Are you gonna go?" to alert Joseph Stillo that Hess would be tried the following day and to confirm the fix. As they parted following lunch, Stillo reassured Cooley, saying, "I'll make the call.... Don't worry about it."

Cooley called Joseph Stillo the day before Hess was scheduled to go to trial to verify that the "benefit" was still on for the following day. Joseph Stillo answered affirmatively but the Hess trial was postponed.

Hess was finally tried to the court on November 5, 1986. A few days before, Cooley visited Judge Stillo to confirm that the bribe scheme was in place. Contrary to the agreement, however, Judge Stillo denied Cooley's motion to suppress the marijuana, found Hess guilty, and sentenced him to six months' supervision.

That afternoon Cooley visited Joseph Stillo's law office and was told that Judge Stillo had found Hess guilty because he looked like an undercover FBI agent. Joseph Stillo agreed to ask his uncle whether Cooley could seek a reduced sentence for Hess. On November 7, Cooley spoke directly with Judge Stillo who reiterated that he found Hess guilty because he looked like an FBI "plant."

On December 16, Cooley again spoke with Joseph Stillo, who told Cooley not to drop his attempt to seek favorable treatment for Hess because at the end of six months Judge Stillo could expunge Hess's conviction from his record. Six months thereafter, Cooley asked Judge Stillo to expunge Hess's supervision, and the judge issued an order to that effect.

On October 2, 1991, Adam and Joseph Stillo were charged in a two-count indictment. Count I charged Judge Adam Stillo with conducting and participating in the conduct of the affairs of an enterprise (the Circuit Court of Cook County) through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c) and 18 U.S.C. Sec. 2. The first three predicate acts of racketeering activity charged Judge Stillo with accepting cash bribes from criminal defense attorneys for favorable rulings in violation of Illinois bribery laws (Ill.Rev.Stat. Ch. 38, pp 33-1(d) and (e)) and official misconduct (Ill.Rev.Stat. Ch. 38, p 33-3). The fourth racketeering predicate act involved the Hess case and included four subpredicate acts the proof of any of which would suffice to establish the fourth predicate act. The four subpredicate acts were: (1) conspiring with his nephew, Joseph Stillo, to commit state bribery; (2) conspiring with Joseph Stillo to commit official misconduct; (3) state law bribery; and (4) conspiring with Joseph Stillo to commit extortion in violation of 18 U.S.C. Sec. 1951.

Count II, also related to the Hess episode, charged both Stillos with conspiring from August 8, 1986 to April 1987 to commit extortion in violation of 18 U.S.C. Sec. 1951.

On July 29, 1993, a jury found Judge Stillo guilty on both counts and Joseph Stillo guilty on Count II. ¹ Judge Stillo was sentenced to four years' imprisonment and his nephew to two years' imprisonment and a $10,000 fine. According to our information both Stillos are serving their sentences.

Discussion

I. Joinder

Joseph Stillo argues that the charge against him was improperly joined in the same indictment with those against his uncle, Judge Stillo. Alternatively, he argues that even if joinder was proper, the district court abused its discretion in denying his pretrial motion for severance.

Federal Rule of Criminal Procedure 8(b) permits defendants to be charged in the same indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." We have construed this rule broadly to allow liberal joinder in order to enhance judicial efficiency. United States v. Curry, 977 F.2d 1042, 1049 (7th Cir.1992), certiorari denied, --- U.S. ----, 113 S.Ct. 1357, 122 L.Ed.2d 737. As we stated there, the rule recognizes that joint trials are beneficial not only for efficiency but because they limit inconvenience to witnesses, avoid delays in bringing defendants to trial, and allow the "total story" to be presented to a single jury. We review a claim of misjoinder de novo, United States v. Coleman, 22 F.3d 126, 134 (7th Cir.1994), but will only reverse a conviction if the misjoinder "results in actual prejudice because it 'had substantial or injurious effect or influence in determining the jury's verdict.' " United States v. Schweihs, 971 F.2d 1302 (7th Cir.1992), quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814.

Count II charged the two Stillos with conspiracy to extort money from attorney Cooley. Both Stillos were alleged to have "agreed to work together to obtain money from Cooley" and to have met with Cooley on separate occasions to reach this end. It is well settled that a conspiracy charge is a proper basis for joinder under Rule 8(b) and it is clear that in this particular conspiracy both defendants "participated in the same series of acts or transactions." Joinder of defendants in this count was thus clearly proper.

The only real issue is whether Count I, the RICO count in which only Judge Stillo was named, was properly joined with the extortion count which involved Joseph Stillo as well. The government cannot bootstrap multiple defendants with similar but unconnected offenses into a single indictment by combining Rules 8(a) and 8(b) and the existence of overlapping defendants. Schweihs, 971 F.2d at 1322. If the RICO count were unrelated to the extortion count, i.e., not part of the "same series of acts or transactions," joinder would indeed have been improper. But that is not the case. The Hess bribery scheme charged in Count II was also the fourth predicate act of racketeering in Count I. Because the overlapping Hess scheme was the sole predicate act to have occurred within five years of the indictment, it was a necessary element of the RICO claim against Judge Stillo. Therefore, severance of the two...