United States v. Blagojevich

• Citation: 794 F.3d 729
• Decision Date: 21 July 2015
• Docket Number: No. 11–3853.,11–3853.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rod BLAGOJEVICH, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

794 F.3d 729

UNITED STATES of America, Plaintiff–Appellee

v.Rod BLAGOJEVICH, Defendant–Appellant.

No. 11–3853.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 13, 2013.

Decided July 21, 2015.

Debra Riggs Bonamici, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Leonard Goodman, Attorney, Len Goodman Law Office LLC, Lauren Faust Kaeseberg, Attorney, Kaplan & Sorosky, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

Opinion

EASTERBROOK, Circuit Judge.

Rod Blagojevich was convicted of 18 crimes after two jury trials. The crimes include attempted extortion from campaign contributors, corrupt solicitation of funds, wire fraud, and lying to federal investigators. The first trial ended with a conviction on the false-statement count and a mistrial on the others after the jury could not agree. The second trial produced convictions on 17 additional counts. At the time of his arrest in December 2008, Blagojevich was Governor of Illinois; the state legislature impeached and removed him from office the next month. The district court sentenced Blagojevich to 168 months' imprisonment on the counts that authorize 20–year maximum terms, and lesser terms on all other counts. All sentences run concurrently, so the total is 168 months. Because the charges are complex, the trials long, and the issues numerous, an effort to relate many details would produce a book-length opinion. Instead we present only the most important facts and discuss only the parties' principal arguments. All else has been considered but does not require discussion.

The events leading to Blagojevich's arrest began when Barack Obama, then a Senator from Illinois, won the election for President in November 2008. When Obama took office in January 2009, Blagojevich would appoint his replacement, to serve until the time set by a writ of election. See Judge v. Quinn, 612 F.3d 537 (7th Cir.2010). Before the 2008 election, federal agents had been investigating Blagojevich and his associates. Evidence from some of those associates had led to warrants authorizing the interception of Blagojevich's phone calls. (The validity of these warrants has not been contested on this appeal.) Interceptions revealed that Blagojevich viewed the opportunity to appoint a new Senator as a bonanza.

Through intermediaries (his own and the President-elect's), Blagojevich sought a favor from Sen. Obama in exchange for appointing Valerie Jarrett, who Blagojevich perceived as the person Sen. Obama would like to have succeed him. Blagojevich asked for an appointment to the Cabinet or for the President-elect to persuade a foundation to hire him at a substantial salary after his term as Governor ended, or find someone to donate $10 million and up to a new “social-welfare” organization that he would control. The President-elect was not willing to make a deal, and Blagojevich would not appoint Jarrett without compensation, saying: “They're not willing to give me anything except appreciation. Fuck them.”

Blagojevich then turned to supporters of Rep. Jesse Jackson, Jr., offering the appointment in exchange for a $1.5 million “campaign contribution.” (We put “campaign contribution” in quotation marks because Blagojevich was serving his second term as Governor and had decided not to run for a third. A jury was entitled to conclude that the money was for his personal benefit rather than a campaign.) Blagojevich broke off negotiations after learning about the wiretaps, and he was arrested before he could negotiate with anyone else.

The indictment charged these negotiations as attempted extortion, in violation of 18 U.S.C. §§ 2 and 1951, plus corrupt solicitation of funds (18 U.S.C. §§ 371 and 666(a)(1)(B) ) and wire fraud (18 U.S.C. §§ 1343 and 1346 ). The indictment also charged Blagojevich with other attempts to raise money in exchange for the performance of official acts, even though federal law forbids any payment (or agreement to pay), including a campaign contribution, in exchange for the performance of an official act. See McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). We give just two examples.

First, when lobbyists for Children's Memorial Hospital sought an increase in reimbursement rates for Medicaid patients, Blagojevich (through intermediaries) replied that he would approve an extra $8 to $10 million of reimbursement in exchange for a “campaign contribution” of $50,000. Blagojevich initially approved a rate increase but delayed and then rescinded it when waiting for a contribution; he was arrested before any money changed hands.

Second, after the state legislature had approved an extension of a program that taxed casinos for the benefit of race-tracks—see Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir.2011) (en banc); Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723 (7th Cir.2014) —but before Blagojevich signed the bill, he attempted to ensure that John Johnston, who owned interests in two of the racetracks, fulfilled a $100,000 “campaign” pledge. Blagojevich had intermediaries inform Johnston that the bill would not be signed until the money arrived. Blagojevich was arrested before he signed the bill (and before Johnston signed a check).

These charges led to guilty verdicts at the second trial. The charge that produced a guilty verdict at the first trial was that Blagojevich had lied to the FBI in 2005, violating 18 U.S.C. § 1001. Investigations of Blagojevich's associates began shortly after he took office as Governor in 2003, and by 2005 the FBI wanted to ask Blagojevich what he knew about his associates' conduct. He agreed to an interview in his lawyer's office. Agents asked whether Blagojevich took contributions into account when approving state contracts or making appointments. He replied “that he does not track who contributes to him and does not want to know and does not keep track of how much they contribute to him.” So an agent testified, relying on his notes. At Blagojevich's insistence, the interview was not recorded, but a jury could find the agent's testimony accurate. The jury also concluded that this answer was knowingly false, because in 2005 and earlier Blagojevich regularly found out who contributed how much. (The jury was told to assess the honesty of this answer based solely on how Blagojevich had conducted himself from 2003 through 2005.)

Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich's own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution's evidence and to find that Blagojevich acted with the knowledge required for conviction.

But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich's proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-elect for a private-sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.

Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir.2014), with Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). (Perhaps because the jury deadlocked at the first trial, the United States does not seriously contend that any error was harmless; a one-line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60–62, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008) (an error of this kind is not “structural”).)

McCormick describes the offense as a quid pro quo: a public official performs an official act (or promises to do so) in exchange for a private benefit, such as money. See also United States v. Sun–Diamond Growers of California, 526 U.S. 398, 404–05, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) ; United States v. McDonnell, 2015 U.S.App. LEXIS 11889 (4th Cir. July 10, 2015). A political logroll, by contrast, is the swap of one official act for another. Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution. A President appoints C as an ambassador, which Senator D asked the President to do, in exchange for D's promise to vote to confirm E as a member of the National Labor Relations Board. Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.

A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else's promise to appoint a different person to a different office (say, the Senate), is a common exercise in logrolling. We asked the prosecutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a...