U.S. v. Synowiec
| Decision Date | 24 June 2003 |
| Docket Number | No. 03-1169.,No. 03-1235.,03-1169.,03-1235. |
| Citation | 333 F.3d 786 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leszek SYNOWIEC, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Christopher S. Niewoehner (argued), Office of the U.S. Attorney, Chicago, IL, for plaintiff-appellee.
Patrick J. Cotter (argued), Arnstein & Lehr, Chicago, IL, for defendant-appellant.
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.
Without question, Leszek Synowiec bribed an Immigration agent on March 24, 1999. Even Synowiec would not quibble with that fact. But did he bribe the same agent a month earlier, the date the one-count indictment alleged that the crime was committed? District Judge David Coar said "yes" after a court trial, and Synowiec appeals, challenging the sufficiency of the evidence supporting his conviction.
INS agents arrested a Polish woman, Malgorzatka Nieweglowska, at a house in Elmwood Park, Illinois, on February 10, 1999. Nieweglowska was in the country illegally, a fact she readily admitted. Synowiec was at the house with Nieweglowska when she was arrested. After the arrest, Nieweglowska surrendered her passport to the agents and was taken downtown. She was booked and then released pending a hearing.
Several days later, two of the arresting INS agents returned to the house after receiving a call from Nieweglowska. Once there, Synowiec asked one of the agents, Derewonko, if there was "anything that could be done" about Nieweglowska's case. He also asked if the agent could lose Nieweglowska's "paperwork." When asked what he meant, Synowiec rubbed his thumb and index finger together and said, "I'll take care of you anytime, anywhere." Near the end of this conversation, Synowiec directed Nieweglowska to pour a glass of cognac for the party, and he proposed a toast: "This is to a friendship and to future business...."
Following the meeting we just described, Synowiec called Agent Derewonko's pager a few times but got no response. Then, on February 24, Derewonko called Synowiec, and the phone was hot. The following conversation was recorded:
After discussing what should be done, Synowiec turned the discussion to price.
Later in the same conversation, after discussing the possibility of doing other "business" together, Agent Derewonko said:
Derewonko and Synowiec then agreed that they would meet in the future.
The indictment charged that Synowiec committed the crime of bribery of a public official during the February 24 recorded conversation we just reproduced. Synowiec argues that his statements fell short of being an offer or promise to give something of value sufficient to satisfy the statute he was charged with violating, 18 U.S.C. § 201(b). Because no actual price was discussed or agreed to during the conversation, Synowiec contends that the evidence against him is legally insufficient. This is so, he says in a bit of hyperbole, because he "clearly and steadfastly declined to give the INS agent the offer he requested" during the conversation.
Synowiec's view of what is necessary for an "offer" under the bribery statute is too rigid and formalistic. It is not necessary for a briber to be familiar with Williston on Contracts in order to make an illegal offer. Under the statute, it is sufficient if a "defendant expresses an ability and a desire to pay the bribe." United States v. Rasco, 853 F.2d 501, 505 (7th Cir.1988). This can be done in the often clandestine atmosphere of corruption with a simple wink and a nod if the surrounding circumstances make it clear that something of value will pass to a public official if he takes improper, or withholds proper, action. And we think Synowiec's actions and statements, both on February 24 and in the earlier discussion when he rubbed his thumb and index finger together in a universally understood gesture implying money, passes the test. The requirement that a defendant expresses "an ability and desire to pay a bribe" in order to satisfy the bribery statute is a less demanding requirement than what the civil law requires for an enforceable offer. Under Rasco, Synowiec would be guilty of offering a bribe if he told Agent Derewonko "I am willing and able to pay you to make Ms. Nieweglowska's case go away" even though that statement would not meet all the formal requirements for a binding offer under civil law.
The view we express is consistent with the requirement that § 201 "is to be broadly construed in order to effectuate its legislative purpose of deterring corruption." United States v. Hernandez, 731 F.2d 1147, 1149 (5th Cir.1984). Using technical civil law hornbook definitions of "offer" would be at odds with the goal that § 201 be an effective net for snaring those who would subvert the public good.
Synowiec relies heavily on Hernandez saying that what he did on February 24 and before amounted to no more than a "preliminary preparatory step that might have led to an offer." In Hernandez, the defendant was accused of using a go-between, Brown, to attempt to bribe a police officer to change his testimony in violation of 18 U.S.C. § 201(d). Brown, however,...
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...We are guided in our analysis by the decision from the United States Court of Appeals for the Seventh Circuit in United States v. Synowiec, 333 F.3d 786, 787 (7th Cir. 2003), where the defendant was convicted of bribing a federal immigration agent. In that case, the defendant asked the agen......
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...see U.S. v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993), the indictment was not unconstitutionally vague. Accord U.S. v. Synowiec, 333 F.3d 786, 791 (7th Cir. 2003) ("Where the indictment alleges that an offense allegedly occurred `on or about' a certain date, the defendant is deemed to be on......
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State v. Badaracco
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