US v. McDonnell, 88 CR 199.

• Decision Date: 15 September 1988
• Docket Number: No. 88 CR 199.,88 CR 199.
• Parties: UNITED STATES of America, Plaintiff, v. John J. McDONNELL, Defendant.
• Court: U.S. District Court — Northern District of Illinois

696 F. Supp. 356

UNITED STATES of America, Plaintiff, v. John J. McDONNELL, Defendant.

No. 88 CR 199.

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

September 15, 1988.

Thomas M. Durkin, Jeffrey E. Stone, U.S. Attorney's Office, Chicago, Ill., for plaintiff.

Patrick A. Tuite, David S. Mejia, Tuite, Mejia & Giacchetti, Chicago, Ill., for defendant.

ORDER

ALESIA, District Judge.

On March 14, 1988, a grand jury returned a seven-count indictment against the defendant, a judge in the Circuit Court of Cook County, Illinois. Count One of the indictment charges the defendant with various acts of racketeering, in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1962(c). It includes 20 separate predicate acts, most of which allege that the defendant committed multiple acts of bribery during his tenure as a judge. Counts Two and Three of the indictment charge the defendant with two separate acts of extorting cash from an attorney, in violation of the Hobbs Act, 18 U.S.C. § 1951(b)(2). Count Four of the indictment charges the defendant with obstruction of justice, in violation of 18 U.S.C. § 1503, based on the defendant's alleged suggestion to another attorney to conceal their mutual involvement in the charged bribery scheme if questioned by law enforcement officials. Finally, Counts Five, Six, and Seven of the indictment charge the defendant with willfully making false statements by underreporting his income on his federal income tax returns for the years 1981, 1982, and 1983, respectively, in violation of 26 U.S.C. § 7206(1).

Currently before the Court are four pretrial motions filed by the defendant. Two of these motions relate to the sufficiency of the indictment itself; the other two merely seek certain pretrial discovery. The Government has filed a consolidated response to the motions. The defendant has filed no reply. We rule on each of the defendant's motions in turn.

I. Motion To Dismiss Indictment

The defendant argues that the bulk of the seven-count indictment in this case is unconstitutionally vague and insufficient. Specifically, the defendant contends that RICO predicate acts 1, 2, 3, 18, 19, and 20 of Count One, as well as Counts Two through Seven in their entirety, fail to adequately apprise him of the charges he is called upon to defend. In support of his motion, the defendant cites the absence of critical identifying details in the challenged portions of the indictment. In response, the Government has voluntarily furnished some, but not all, of the missing details. The Government claims that the remainder of the identifying information need not be furnished because it merely constitutes "minor evidentiary detail," the omission of which does not render the indictment defective.

In analyzing the sufficiency of an indictment, the Court must consider what is alleged in the indictment when read in its entirety. United States v. Hoag, 823 F.2d 1123, 1126 (7th Cir.1987); see also United States v. Esposito, 771 F.2d 283, 288 (7th Cir.1985); cert. denied, 475 U.S. 1011, 106 S.Ct. 1187, 89 L.Ed.2d 302 (1986). Common sense and reason prevail over technicalities. United States v. Climatemp, Inc., 482 F.Supp. 376, 382 (N.D.Ill.1979), aff'd sub nom. United States v. Reliable Sheet Metal Works, Inc., 705 F.2d 461 (7th Cir.), cert. denied, 462 U.S. 1134, 103 S.Ct. 3116, 77 L.Ed.2d 1370 (1983). The defendant is entitled to an indictment that states all of the elements of the offense charged, informs him of the nature of the charge so that he may prepare a defense, and protects him from double jeopardy by enabling him to plead the judgment as a bar to any later prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1046-1047, 8 L.Ed.2d 240 (1962); United States v. Neapolitan, 791 F.2d 489, 500-01 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986); United States v. Gironda, 758 F.2d 1201, 1209 (7th Cir.), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985).

Guided by these standards, we undertake a detailed examination of the sufficiency of the indictment. Count One charges a RICO violation. Tracking the language of Section 1962(c) of the RICO statute, Count One specifically alleges that while the defendant, a judge, was employed by and associated with the Circuit Court of Cook County, an enterprise, he knowingly conducted and participated in the affairs of that enterprise through a pattern of racketeering activity. See 18 U.S.C. § 1962(c). That pattern of racketeering activity consists of 20 separate underlying predicate acts.

The first predicate act alleges that between August, 1983 until on or about 1986, the defendant obstructed justice by suggesting to Bernard Mann, another attorney, that if law enforcement officials approached Mann and asked him about the bribery scheme in which the defendant and Mann allegedly participated, Mann should not divulge their involvement, but instead, should falsely state that neither the defendant nor Mann was involved in any wrongdoing.¹

The remainder of the predicate acts (numbers 2 through 20) set forth specific instances of alleged bribery and official misconduct. Each of these predicate acts is styled in the language of the applicable Illinois bribery and official misconduct statutes. See Ill.Rev.Stat. ch. 38, ¶¶ 33-1(d), (e) and 33-3(d). With a few exceptions, each of these predicate acts identifies the date the defendant allegedly accepted or solicited the bribe; the name of the attorney who allegedly made the bribe or was solicited for the bribe; the amount of the bribe; and the name of the client whom the designated attorney was then representing, or the name of the case pending before the defendant in which that attorney was then involved.

The defendant's challenge to this second set of predicate acts is twofold. First, the defendant contends that predicate act numbers 2 and 3 are too vague because they do not specify the cash amount of the bribes allegedly made. In response, the Government argues that the specific amounts of the cash bribes are "minor evidentiary details" which need not be included to satisfy constitutionally acceptable standards.

While we agree that the absence of the specific cash amounts does not render these portions of the indictment unconstitutionally vague, we disagree with the Government's characterization of this information. Indeed, the Government's specification of the cash amounts in the remaining predicate acts betrays the speciousness of its argument. If the Government truly believed that the cash amounts of the various bribes were merely "minor evidentiary details," then the Government would not have specified these amounts in predicate act numbers 4 through 20. In any event, the defendant is entitled to this information and the Government has offered no legitimate reason for withholding it. Thus, the Government is required to disclose this information in its bill of particulars, as more fully set forth later in this opinion.

The defendant also argues that predicate act numbers 18, 19, and 20 are unconstitutionally vague because they fail to identify the names of those attorneys who were allegedly solicited by the defendant for bribes. In response, the Government points out that it has supplied, by way of a response to the defendant's motion for a bill of particulars, the names of those attorneys generically referred to, though not specifically identified by name, in predicate act numbers 18, 19, and 20. That response, however, is disingenuous.

We note that predicate act numbers 18 and 19 at least identify the names of the cases for which the defendant allegedly solicited the respective bribes. Thus, even without the particulars subsequently supplied by the Government, they sufficiently apprise the defendant of the factual basis for the underlying charges. Accordingly, we find that these predicate acts meet the minimum constitutional standards enunciated in Russell, if only the bare minimum.²

Predicate act 20, however, runs afoul of constitutionally acceptable standards. It alleges:

From in or about 1980 to in or about 1983, defendant JOHN J. McDONNELL did commit multiple acts of bribery in violation of Illinois State Law by accepting and agreeing to accept cash bribes ranging from approximately $50 — $500 from or on behalf of an attorney who practiced before defendant JOHN J. McDONNELL, which cash bribes defendant JOHN J. McDONNELL was not authorized by law to accept, knowing that such cash bribes were promised and tendered to defendant JOHN J. McDONNELL with the intent to cause defendant McDONNELL to influence and, pursuant to an understanding that defendant McDONNELL would be influenced in, the performance of acts related to his employment and function as a judge at Branch 46, in the First Municipal District, Circuit Court of Cook County.

Apparently a "catchall" charge, predicate act 20 spans a period of three years, alleges "multiple" acts of bribery, and encompasses cash bribes ranging from anywhere between $50.00 and $500.00 in amount. Yet, this predicate act fails to identify either the name of the attorney from whom the defendant allegedly accepted the bribes or the name of the case or cases with which that attorney was affiliated. Without this critical information, the defendant cannot prepare a meaningful defense; he can only hazard to guess at the identity of this attorney or the names of those cases with which this attorney was affiliated.

The Government nonetheless attempts to cure the deficiencies of this portion of the indictment by supplying the name of the attorney referred to in predicate act 20 in its response to the defendant's alternative motion for a bill of particulars. According to Russell, however, "a bill of particulars cannot save an invalid indictment."³ Russell, 369 U.S. at 770, 82 S.Ct. at 1050; see also United States v. Dorfman, 532 F.Supp. 1118, 1126 (N.D.Ill.19...