US v. Boender

Citation691 F. Supp.2d 833
Decision Date24 February 2010
Docket NumberNo. 09 CR 186-1.,09 CR 186-1.
PartiesUNITED STATES of America, v. Calvin BOENDER.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

691 F. Supp.2d 833


No. 09 CR 186-1.

United States District Court, N.D. Illinois, Eastern Division.

February 24, 2010.

691 F. Supp.2d 836

Brandon D. Fox, AUSA, Manish S. Shah, Matthew Alan Hurd, City of Chicago, United States Attorney's Office, Chicago, IL, Pretrial Services, Probation Department, for Plaintiff.

Joseph Vincent Roddy, Law Office of Joseph V. Roddy, Gabriel Bankier Plotkin, Miller Shakman & Beem LLP, Jeffrey Bruce Steinback, Law Offices of Jeffrey B. Steinback, Lawrence S. Beaumont, Chicago, IL, Robert Marshall Sanger, Stephen Kerr Dunkle, Sanger & Swysen, Santa Barbara, CA, Susan C. Yu, Thomas A. Mesereau, Jr., Mesereau & Yu, LLP, Los Angeles, CA, for Defendant.


ROBERT M. DOW, JR., District Judge.

On February 26, 2009, a federal grand jury indicted Defendant Calvin Boender ("Boender"). Subsequently, a nine-count superseding indictment (the "Indictment") was issued on May 28, 2009. See 8. Before the Court is Boender's motion to dismiss several counts of the Indictment 73, which the parties have fully briefed 74, 77, 78. For the reasons set forth below, the motion to dismiss 73 is respectfully denied.

I. Background

Counts 1 through 4 of the Indictment charge Boender with committing mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1346. Count 5 charges Boender with "federal programs bribery" in violation of 18 U.S.C. § 666(a)(2). Counts 6 and 7 each charge Boender with campaign finance fraud in violation of 2 U.S.C. §§ 441f and 437g(d)(1)(A)(ii). Counts 8 and 9 each charge Boender with obstruction of justice in violation of 18 U.S.C. § 1503(a).

Boender's motion to dismiss targets Counts 1 through 4, 6, and 9 of the Indictment. As explained in Part III of this opinion, the motion to dismiss is denied as moot with regard to Counts 1 through 4. With respect to Count 6, Boender argues that the conduct that the United States of America (the "Government") has alleged does not amount to a crime. Although Boender has raised a pure issue of law that is amenable to resolution at the motion to dismiss phase, the Court agrees with the Government's contention that a prosecution may proceed on the Government's proffered theory. With respect to Count 9, Boender argues that the charge cannot be proved without calling his former attorney as a witness and violating his constitutional rights and testimonial privileges. The Court concludes that Boender's argument is not properly amenable to resolution at the motion to dismiss phase because it requires the Court to look behind the indictment. Further, Boender has not presented the Court with sufficient evidence to entitle him to an evidentiary hearing on his prosecutorial misconduct argument; at the motion to dismiss phase, a defendant bears a heavy burden of showing that an evidentiary hearing is appropriate, and Boender has not satisfied that burden. The motion to dismiss therefore is denied as to Count 9 as well, and the

691 F. Supp.2d 837
evidentiary issues raised by Boender pertaining to that Count will be addressed separately in the context of the Court's rulings on the parties' motions in limine.

II. Legal Standard

Federal Rule of Criminal Procedure 12(b)(3)(B) permits a party to make a pretrial motion that challenges the sufficiency of an indictment or information. The contents of an indictment or information, in turn, are spelled out in Federal Rule of Criminal Procedure 7(c)(1). The Seventh Circuit teaches that an indictment is constitutionally adequate and complies with Rule 7(c)(1) where it (i) states the elements of the offense charged, (ii) fairly informs the defendant of the nature of the charge so that he or she may prepare a defense, and (iii) enables the defendant to plead an acquittal or conviction as a bar against future prosecutions for the same offense. United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir.1997); see also Hamling v. United States, 418 U.S. 87, 118, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (discussing precedent and describing when the language of the indictment will be deemed sufficient); Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (among the criteria for gauging sufficiency of an indictment are whether it includes "the elements of the offense intended to be charged" and whether is "sufficiently apprises the defendant of what he must be prepared to meet").

The Supreme Court has long held that "an indictment returned by a legally constituted and unbiased grand jury, * * * if valid on its face, is enough to call for trial of the charge on the merits." Costello v. U.S., 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Indictments are to be reviewed "on a practical basis and in their entirety, rather than in a hypertechnical manner." United States v. Cox, 536 F.3d 723 (7th Cir.2008). A motion to dismiss an indictment is not "a means of testing the strength or weakness of the government's case.'" United States v. Moore, 563 F.3d 583, 586 (7th Cir.2009). Thus, while an indictment may be dismissed if subject to a defense that raises a purely legal question (United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003)), a defense that relates to the strength of the Government's evidence ordinarily must wait for the trial. Moore, 563 F.3d at 586 (inquiry at the motion to dismiss phase is to determine "if it's possible to view the conduct alleged" as constituting the crime alleged); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir.1988) (noting the ordinary rule while affirming a district court that dismissed an indictment as to which, under the undisputed facts, "there was no case to prove").

III. Analysis

A. Counts 1 through 4: Mail and Wire Fraud

Boender's motion to dismiss Counts 1 through 4 targets charges of mail fraud and wire fraud. At the Court's January 29, 2010, status hearing, the Government indicated that it did not intend to pursue these counts and that it would notify Boender if it decided to deviate from that course. The Government subsequently has confirmed that if the case proceeds to trial on March 8, it will not pursue Counts 1 through 4 and has tendered a draft superseding indictment that omits those Counts. For these reasons, Boender's motion is denied as moot as to Counts 1 through 4, with the caveat that the Court will re-open the matter if trial does not proceed on March 8 and the Government later chooses to pursue these Counts.

691 F. Supp.2d 838

B. Count 6: Campaign Finance Fraud

According to Boender, Count 6 must be dismissed because the plain language of the provision under which he was charged, 2 U.S.C. § 441f, "does not prohibit reimbursement of a campaign contributions." Def. Mem. at 7. Boender attempts to bolster his plain language argument with a structural argument: because another provision, 2 U.S.C. § 441a uses the words "indirectly," "conduit," and "intermediary," Congress would have used similar language in § 441f had it wished to criminalize so-called conduit contributions. Def. Mem. at 6-7. If nothing else, Boender contends that the rule of lenity should apply and, therefore, that the statute should be construed in his favor, particularly given the First Amendment issues at stake. Id. at 7. The Court respectfully disagrees with Boender's contentions.

The provision under which Boender is charged in Count 6 provides: "No person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution * * *." 2 U.S.C. § 441f (emphasis added). According to Count 6 of the Indictment, "On or about March 2, 2004, in the Northern District of Illinois and elsewhere, Calvin Boender * * * knowingly and willfully violated the Federal Election Campaign Act, which violation involved making contributions as the term is defined in Title 2 to a federal candidate, in the names of others, and which violation aggregated $2,000 or more during a calendar year, by causing other persons to contribute to Candidate A, a candidate for the Office of the Member of the United States House of Representatives, and advancing funds to those persons and reimbursing those persons a total of at least $4,000 during the 2004 calendar year for their contributions."

The issue raised by Boender's motion is the meaning of "to make a contribution in the name of another person." According to Boender, Section 441f does not apply to "conduit contributions"1 when an actual donor2 (in this case Boender) gives money to a nominal donor, who in turn actually hands the money over to a campaign. To understand the disagreement, one must focus on the phrase "to make a contribution in the name of another person." The phrase admits of at least two different meanings. One interpretation is that it proscribes a situation in which an actual donor directly hands over money to a campaign but, when asked what his name is, provides the name of the nominal donor. (That appears to be Boender's construction.) Another interpretation, relied upon by the Government in this case, is that Section 441 f applies to an actual donor who physically gives money to a nominal donor, who then hands money over to the campaign.

The Court agrees with Boender's observation that the most persuasive evidence of Congressional intent is the words chosen in the statute (Utah v. Evans, 536 U.S. 452, 496, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002)), but the Court respectfully disagrees with the conclusion that the language of Section 441f plainly supports Boender's position. In many areas of law and life, a person can "make" something happen though various forms of action. As a general matter, the law is no stranger to the concept. One of the most obvious examples in criminal law relates to the law of murder, which attaches liability where a

691 F. Supp.2d 839
person causes the death of another even without physically delivering the deathblow. See, e.g., Washington v....

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