United States v. Gervasi

• Citation: 562 F. Supp. 632
• Decision Date: 16 March 1983
• Docket Number: No. 82 CR 635.,82 CR 635.
• Parties: UNITED STATES of America, Plaintiff, v. John GERVASI, Michael Ettinger, and Charles Soteras, Defendants.
• Court: U.S. District Court — Northern District of Illinois

562 F. Supp. 632

UNITED STATES of America, Plaintiff, v. John GERVASI, Michael Ettinger, and Charles Soteras, Defendants.

No. 82 CR 635.

United States District Court, N.D. Illinois, E.D.

March 16, 1983.

COPYRIGHT MATERIAL OMITTED

Candace Fabri, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

Edward J. Egan, Samuel V.P. Banks, Edward Genson, Jeffrey B. Steinback, James I. Marcus, George J. Murtaugh, Jr., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

WILLIAM T. HART, District Judge.

The August 1982 Grand Jury returned a seven count indictment against the defendants John Gervasi ("Gervasi"), Michael Ettinger ("Ettinger"), and Charles Soteras ("Soteras"), charging violations of 18 U.S.C. §§ 371, 1343 and 1952. Gervasi and Ettinger are attorneys admitted to practice in the State of Illinois. In 1977, Soteras was a defendant in a criminal case in the Circuit Court of Cook County, charged with car theft. Gervasi and Ettinger represented Soteras on the car theft charge.

The federal indictment alleges that the three defendants conspired to bribe a police officer, Daniel Furay ("Furay"), to arrange for the dismissal of the car theft charges against Soteras. The defendants have filed a number of pretrial motions attacking the indictment, and also have moved to suppress key evidence in the case. All of the parties have filed excellent briefs in support of their positions. The Court rules on these motions as follows.

I. Vindictive Prosecution

A. Facts

The defendants have moved to dismiss the indictment on grounds of vindictive prosecution. The facts are complex, and present a nest of Chinese boxes composed of three separate prosecutions. The Court describes them here in as brief a fashion as possible.¹

Soteras was charged with car theft in October, 1977. One of the arresting officers was Furay. It is alleged that shortly after the arrest, attorney Gervasi approached Furay to discuss the Soteras case. Furay believed that Gervasi might offer a bribe, and contacted the office of the Cook County State's Attorney ("state's attorney").

During the next two months, in-person meetings and telephone conversations between Furay and Gervasi, and telephone conversations between Furay and Ettinger, were overheard and transcribed by court reporters and agents of the state's attorney. The state's attorney did not seek a court order authorizing the transcription of these conversations for two reasons: (1) the assistant state's attorney ("ASA") spearheading the investigation believed that the method employed (overhearing the telephone conversations with the mouthpiece of the telephone removed) did not violate the state eavesdropping law; and (2) Gervasi was being considered at the time for a position as an associate circuit judge of Cook County, and the ASAs feared the undercover operation might be disclosed if they approached a sitting circuit judge for authorization.

As a result of the investigation, Gervasi and Ettinger were indicted in February, 1978 by a Cook County grand jury, and charged with eleven counts of bribery and conspiracy. They faced a maximum total sentence of 59 years incarceration.

The Honorable R. Eugene Pincham, circuit court judge, presided over the case. Gervasi and Ettinger moved to suppress evidence of the overheard and transcribed conversations with Furay, and Judge Pincham granted the motion. The state appealed the ruling, and the appellate court affirmed in part and remanded in part. People v. Gervasi, 90 Ill.App.3d 1117, 46 Ill.Dec. 369, 414 N.E.2d 91 (1st Dist.1980). The state further appealed this decision, and in April, 1982, the Illinois Supreme Court affirmed in part and reversed in part. People v. Gervasi, 89 Ill.2d 522, 61 Ill.Dec. 515, 434 N.E.2d 1112 (1982).

In its decision, the court held that since "one party to the conversations had consented to the monitoring, neither the Federal Constitution, nor the constitution of this State was offended." 61 Ill.Dec. at 517-518, 434 N.E.2d at 1114-15. However, the court also held that the Illinois Eavesdropping Statute, Ill.Rev.Stat. 1977, ch. 38, §§ 14-1 and 14-5, had been violated and evidence obtained in violation of Illinois law had to be suppressed. The effect of the rulings was to make inadmissible the bulk of the state's evidence.

The case was remanded to the circuit court for trial. Since the defendants had requested a bench trial, their inalienable right under Illinois law, Judge Pincham was to be the factfinder. On August 25, 1982, five days before the case was to be called for trial, the state moved for clarification of Judge Pincham's earlier suppression order. The ASAs wished to determine whether the suppressed materials could be used to prepare witnesses for trial, and could be used at trial to refresh witnesses' recollections of the events which had taken place nearly five years before. Judge Pincham ruled that the suppressed evidence could not be used for such purposes. The state did not seek leave to appeal.

The ASAs thereupon contacted the federal prosecutors to discuss the case. The federal prosecutors were told that, given Judge Pincham's rulings, in the opinion of the ASAs the state case against Gervasi and Ettinger was unproveable. The federal prosecutors studied the state prosecution file, and attempted to obtain additional information through federal grand jury subpoenas but were unable to do so.

After further consideration, the federal prosecutors decided that there was a jurisdictional basis to proceed with a federal prosecution and that such a prosecution was warranted. The evidence obtained from the state was presented to a federal grand jury, and on September 14, 1982 an indictment was returned under which the defendants faced a maximum total sentence of 35 years incarceration. The state had moved before Judge Pincham to nolle prosse the state charges, which motion was granted, three hours earlier. The federal statute of limitations would have expired on November 28, 1982, ten weeks after the federal indictment was handed down.

At the hearing held by this Court on February 25, 1983, the defendants offered as an exhibit the deposition testimony of attorney Joseph M. Macellaio. In his deposition, Macellaio described a conversation he had with attorney Dennis Dernbach sometime in September, 1982, in a bar near the criminal courts building at 2600 South California, Chicago. Dernbach had been one of the ASAs prosecuting the case of Gervasi and Ettinger. Macellaio testified that Dernbach told him the reason the Gervasi case was sent over to federal court was that the state "couldn't get a fair shake ... from Judge Pincham", and that "We can try our case over there better than we can in front of Judge Pincham" (Macellaio Dep., at 6).²

The defendants presented to this Court exhibits and argument to the effect that in numerous recent instances the state's attorney has dropped state prosecutions before Judge Pincham in favor of federal prosecutions for the same essential conduct. Further, the defendants charged that in one case the state's attorney brought an unprecedented motion designed to force Judge Pincham to recuse himself. The motivation of the state's attorney, according to the defendants, is to take criminal cases away from Judge Pincham because he has the reputation of being a "defendant's judge."

The defendants allege several theories in support of the motion to dismiss for vindictive prosecution:

1. The federal prosecution was designed and motivated to penalize these defendants for their state court success in exercising their statutory and constitutional rights.

2. The institution of a federal prosecution under such circumstances will deter other defendants from exercising their rights.

3. The prosecution is an attempt to avoid and make meaningless these defendants' rights to the greater procedural and substantive protections afforded by Illinois law, including the right to a trial by the court without a jury, and the protection of the more stringent state standards as to the admissibility of overheard conversations.

4. The prosecution is an attack on the integrity of the judiciary of the Circuit Court of Cook County.

5. The prosecution of these defendants now in federal court, after they have run the gauntlet for five years in state court, is inherently unfair and a violation of due process.

B. Presumptions and Procedures

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court held that "to punish a person because he has done what the law plainly allows him to do is a due process violation `of the most basic sort.'" United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982), quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). In Pearce the Court found the appearance of judicial vindictiveness when a defendant, having successfully won a new trial on appeal, received a greater sentence upon retrial and conviction. Blackledge was a case of the appearance of prosecutorial vindictiveness where a defendant was charged with a higher offense upon his exercise of his state statutory right to a trial de novo after a conviction in an inferior court.

The most recent statement by the Supreme Court on the issue of prosecutorial vindictiveness came in United States v. Goodwin, supra. In Goodwin, the defendant initially was charged with a federal misdemeanor. After exercising his right to trial by jury in the district court rather than trial to a magistrate (who at that time was not empowered to preside over a jury), a different prosecutor reviewed the file and obtained a felony indictment from a grand jury. The defendant was convicted of the felony charge, and on appeal asked that the felony conviction be reversed on grounds of prosecutorial vindictiveness.

The United States Court of Appeals for the Fourth Circuit...