United States v. Reese

• Citation: 666 F.3d 1007
• Decision Date: 13 January 2012
• Docket Number: No. 10–2562.,10–2562.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael REESE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

666 F.3d 1007

UNITED STATES of America, Plaintiff–Appellee,

v.Michael REESE, Defendant–Appellant.

No. 10–2562.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 26, 2011.Decided Jan. 13, 2012.

Kate Zell (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

David W. DeBruin, Matthew J. Dunne (argued), Attorneys, Jenner & Block LLP, Washington, DC, for Defendant–Appellant.

Before RIPPLE and HAMILTON, Circuit Judges, and MYERSCOUGH, District Judge.^*MYERSCOUGH, District Judge.

On September 15, 2009, a jury found Michael Reese, a supervising building inspector for the City of Chicago's Department of Buildings, guilty of one count of conspiracy to commit bribery (18 U.S.C. § 371) and two counts of making false statements to federal agents (18 U.S.C. § 1001(a)(2)). In June 2010, the district court sentenced Reese to a total of 60 months' imprisonment—51 months' imprisonment on Count I and 9 months' imprisonment on each of Counts 2 and 3, to be served concurrently.

Reese appeals, arguing the district court erred by admitting testimony about the 2005 gift list of Beny Garneata, a City of Chicago businessman, and admitting the list itself. Reese also argues the court erred by barring the admission of recordings between Reese and Catherine Romasanta, one of the witnesses who testified against him, which contained self-exculpatory statements. Finally, Reese argues the court erred by holding him accountable for more than $117,000 in bribes (the court actually held him accountable for $112,500), which resulted in an eight-level increase to Reese's offense level under the United States Sentencing Guidelines.

Although the district court erred by admitting the 2005 gift list as a business record, the error was harmless. Further, the court did not err by admitting testimony about the gift list and barring Reese from introducing the recordings between Reese and Romasanta. Finally, the court did not err by holding Reese accountable for $112,500 in bribes. Therefore, we affirm.

I. BACKGROUND

In December 2008, the Government charged Reese, a supervising building inspector in the City of Chicago's Department of Buildings, with one count of conspiracy to commit bribery and two counts of making false statements to federal agents. The conspiracy count alleged that, between early 2005 and mid-December 2006, Reese conspired with David Johnson, a building inspector with the City of Chicago, Sorin Adrian Oros, a building contractor, and others known and unknown. According to the Government, Reese and Johnson accepted money from individuals, including Oros, and referred individuals to each other in exchange for providing certain services, such as issuing certificates of occupancy, expediting permit approvals, abating code violations, and obtaining unit change approvals.

A. Summary of the Evidence Presented at the September 2009 Trial

Reese's coconspirators testified at trial, including Johnson and Romasanta, who cooperated with the Government, and Oros, who was found guilty of bribery and testified under a grant of immunity. The Government also played for the jury several recordings between Reese and “Danny,” the confidential informant, between Johnson and Danny, and between Reese and Johnson.

Johnson testified that over a number of years, he and Reese referred individuals to each other to provide certain official services in exchange for a bribe. These services included building unit changes, code violation changes, putting permits and plans through the system, and removing stop work orders. Sometimes Johnson and Reese shared the bribe money with each other.

Johnson introduced Greg Jackson, an investor and contractor, to Reese. In February 2007, Jackson told Johnson that Reese wanted $10,000 to take care of a project on South Prairie. (The district court instructed the jurors that they could only consider that testimony as context for the February 2007 recording and not for the truth of the matter asserted.) In a February 2007 recording between Defendant and Johnson, Reese told Johnson, “Make that motherfucker come up with that number.” Johnson understood that to mean that Reese wanted Johnson to put pressure on Jackson to pay the $10,000. Reese also stated, “[T]hat's why I came in with high because I know this motherfucker he gonna be sitting.” Johnson explained Reese was referring to the number that he gave Jackson on how much it would cost to “take care of the problem.”

Johnson also testified that Reese introduced him to Beny Garneata, an expeditor and electrical contractor. In exchange for $4,000, Johnson helped Garneata get certain permits and plans through the system.

Oros testified that he paid Reese a bribe several times in exchange for Reese changing information in the City's computer system (also referred to as “mainframe changes”) to reflect the number of units Oros had in his buildings. In 2005, access rights to the computer system were changed and only certain administrative personnel had the ability to edit, update, and delete information in the computer database. When Reese could no longer make the changes for Oros, Reese introduced Oros to Johnson, who knew an administrative assistant with access to the computer system. Oros thereafter paid Johnson to have the changes made in the computer system. Oros also paid Johnson several times for obtaining zoning stamps.

In December 2006, Johnson and Oros were arrested when Johnson met with Oros to pick up $12,000 in exchange for getting zoning approvals on architectural plans. During the January 2007 conversation between Johnson and Reese, Johnson told Reese he had “two pieces” that he needed to get rid of, referring to the two architectural drawings Johnson had received from Oros. Reese asked Johnson if he wanted Reese to “holler at him,” which Johnson understood to mean that Reese would get in touch with Oros about returning the drawings. Reese asked Johnson, “They done?” to which Johnson responded, “They done. Darryl got them stamped off at City Hall.”

Romasanta, a former expeditor who worked for Garneata, testified that she took bribes from contractors and developers and passed them on to City inspectors, including Reese. (An expeditor is a private company or a person employed by a private company who represents the building owner or investor and helps the owner or investor obtain building permits more quickly.) Romasanta also testified that on one occasion, she handed Reese an easy permit application. Reese handed the documents to Johnson and told him “to go do his thing.” Romasanta gave Reese $1,500, and Johnson returned with the approved application.

Romasanta testified about Garneata's practice of distributing gift cards to City officials at Christmas. Garneata told Romasanta that they “needed to take care of the inspectors.” Between 2003 and 2005, Romasanta saw a list reflecting gift cards for City inspectors. In 2005, Romasanta delivered a gift card to Reese. In 2006, Reese called Romasanta and asked her if Garneata was doing anything for inspectors that year.

Romasanta also testified about Garneata's handwritten 2005 gift list, which the district court admitted into evidence. One of the names on the 2005 gift list was “Insp. Reesse [sic]—$200.” Romasanta identified the individuals named on the list, including Reese.

Dwayne Pierre–Antoine testified that in October 2005, he went to the building department regarding some building violations on his property. Pierre–Antoine explained the situation to Reese and asked him what he needed to do. Reese told Pierre–Antoine that he needed to speak to someone else. That individual, later identified as Johnson, spoke to Pierre–Antoine alone in Reese's office. Johnson told Pierre–Antoine that he had to pay a $4,000 fee to get the violations on his property removed. When Pierre–Antoine told Johnson he could not do that, Johnson asked him how much he had. Pierre–Antoine refused to pay anything. Pierre–Antoine was ultimately able to resolve the issues within two to three days for no cost. In November 2005, Pierre–Antoine filed a complaint with the United States Postal Inspection Service, which resulted in an investigation of City of Chicago employees accepting bribes in return for performing official acts related to their duties.

This evidence was further corroborated by the recordings of conversations between Reese and the confidential informant, Danny. In October 2006, Danny called Reese looking to obtain a permit more quickly than usual. Reese told Danny he knew someone who could help Danny “get 'em pushed through.” In November 2006, Reese told Danny that he might be able to talk to an inspector “and maybe he will let you work you know for a small fee.” Reese gave Johnson's cell phone number to Danny, and Johnson ultimately provided Danny with a plumbing license letter of intent for $800.

Finally, the Government introduced a month-by-month summary of the number and duration of calls between Reese and his alleged coconspirators during 2005, 2006, and part of 2007.

After deliberating, the jury found Reese guilty on all three counts. In January 2010, the district court denied Reese's post-trial motions.

B. Verdict and Sentencing

In June 2010, the district court sentenced Reese to 51 months' imprisonment on Count 1 and two 9–month concurrent terms on Counts 2 and 3, to run consecutive to Count 1. The district court held Reese accountable for $112,500 in bribes, which increased Reese's offense level by eight. See United States Sentencing Guidelines Manual (U.S.S.G.) § 2B1.1(b)(1)(E), (F) (providing for an 8–level increase where the amount of loss is more than $70,000 but $120,000 or less).

II. DISCUSSION

On appeal, Reese argues the district court erred by: (1) allowing testimony about the gift card list and admitting the 2005 gift card list; (2) barring evidence of recordings between Reese and Romasanta during which Reese declined Romasanta's invitation to engage in...