Turner v. United States of America
Filing
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OPINION & ORDER granting in part and denying in part 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence. Case terminated. Entered by Judge Joe Billy McDade on 8/31/2011. (RK, ilcd)
E-FILED
Thursday, 01 September, 2011 08:08:32 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CECIL TURNER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No.
10-cv-1140
OPINION & ORDER
Before the Court is Petitioner Cecil Turner’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (R.2 Doc. 1)1 as well as Petitioner’s
Motion to Amend his § 2255 Motion (R.2 Doc. 8). The Government has filed a
Memorandum in Opposition to Petitioner’s Motion to Vacate (R.2 Doc. 12), to which
Petitioner has filed a Response (R.2 Doc. 15). For the following reasons, Petitioner’s
Motion to Vacate is GRANTED in part and DENIED in part.
BACKGROUND2
Petitioner was the Director of the Division of Physical Services for the Illinois
Secretary of State’s office from 1999 to 2005. In this position, he supervised over
300 employees who were responsible for cleaning and maintaining various state-
The Court will cite to the record of Petitioner’s instant habeas action, 10-cv-1140,
as (R.2 Doc. __); and to the record of Petitioner’s underlying criminal proceedings,
06-cv-30012, as (R.1 Doc. __).
2
The following factual background is taken from the opinion of the United States
Court of Appeals for the Seventh Circuit on Petitioner’s direct appeal. United
States v. Turner, 551 F.3d 657 (7th Cir. 2008).
1
owned buildings in Springfield, Illinois. Three of those employees were the night
janitors, Dana Dinora, David Medvesek, and Steven Boyce. Petitioner promoted
Dinora to lead janitor shortly after being appointed Director in 1999, and the three
janitors comprised a cleaning crew responsible for several state-owned buildings.
Led by Dinora, the three night janitors devised a scheme to take massive
amounts of unauthorized leave without being detected by their supervisors. At its
peak, the scheme allowed Dinora to collect a full salary while working less than 30
minutes each day and the others to receive full pay while cutting their work hours
in half. Petitioner was essential to the success of the scheme. Petitioner repeatedly
intervened when the janitors’ immediate supervisors began to watch the three more
closely, reprimanding them and telling them to leave Dinora and his crew alone.
Petitioner’s efforts to deflect attention from the night janitors’ fraud were
successful from 1999 until 2003, when Division Chief Dodie Stannard became
involved. Stannard began to investigate after receiving numerous complaints about
the unsanitary conditions in the buildings that Dinora’s crew was assigned to clean.
Stannard would check the buildings when the janitors were supposed to be working,
and often found them deserted. Accordingly, Stannard made a written report about
her investigation to Petitioner and recommended that the Office of the Inspector
General (“OIG”) become involved. Petitioner responded by claiming that Stannard
had “stabbed him in the back” by putting her concerns in writing, and told her that
reporting Dinora’s crew to the OIG was unnecessary as the matter rested with him
alone.
2
In mid-2005, Stannard notified the OIG of her concerns.
Petitioner was
informed of the report by the OIG, and told not to disclose it to anyone.
Nevertheless, Petitioner warned Dinora of the investigation and told him to watch
his crew closely. Thereafter, in September 2005, the FBI opened an investigation
and Dinora began cooperating, making Petitioner the focus of the investigation. In
mid-October, FBI agents questioned Petitioner about the janitors’ scheme.
Petitioner stated that he had never aided the janitors in their scheme, that he did
not know of it until September 2005, and that he had complied with the OIG’s
request not to tell anyone about the investigation. The FBI questioned Petitioner
again in November 2005, and Petitioner stuck to his story.
On September 8, 2006, Petitioner, along with Dinora, Medvesek, and Boyce,
was charged by amended indictment with four counts of wire fraud, in violation of
18 U.S.C. §§ 1343, 1346 and 2 (Counts I-IV). (R.1 Doc. 1 at 1-15). Petitioner was
also charged with two counts of making false statements, in violation of 18 U.S.C. §
1001 (Counts V-VI). (R.1 Doc. 1 at 17-21). On August 24, 2006, Medvesek and
Boyce pled guilty. (R.1 Minute Entries of 8/24/06). On August 25, 2006, Dinora
pled guilty.
(R.1 Minute Entry of 8/25/06).
Petitioner proceeded to trial on
September 11, 2006. Following a five day jury trial, Petitioner was convicted on all
six counts of the indictment on September 18, 2006. (R.1 Doc. 77).
After Petitioner was convicted, a Presentence Report (“PSR”) was completed
by the U.S. Probation Office. (R.1 Doc. 89). In the PSR, Petitioner’s base offense
level was calculated at 7 (R1. Doc. 89 ¶ 48); his offense level was increased by 10
3
levels as the amount of loss was more than $120,000 (R.1 Doc. 89 ¶ 49); he received
a two point enhancement for his role in the offense as “the defendant abused a
position of trust and his position as Director of Physical Services helped him conceal
the offense” (R.1 Doc. 89 ¶ 41); and he received a two level enhancement for
obstruction of justice in that he was convicted of Making False Statements (R.1 Doc.
89 ¶ 52), resulting in an adjusted total offense level of 21 (R.1 Doc. 89 ¶ 53). The
PSR established a Sentencing Guideline range of 37 to 46 months. (R.1 Doc. 89 ¶
101). On January 4, 2007, this Court departed downward from the Guideline range
and sentenced Petitioner to 30 months imprisonment on each of Counts I-VI, to run
concurrently; three years of supervised release on each of Counts I-VI, to run
concurrently; $600 in special assessments and restitution in the amount of
$49,558.87. (R.1 Doc. 92).
Petitioner filed a notice of appeal on January 8, 2007. (R.1 Doc. 94). On
appeal, Petitioner argued: (1) that the evidence at trial was insufficient to convict
him of making false statements in violation of 18 U.S.C. § 1001; (2) that the
evidence at trial was insufficient to establish an honest services fraud because he
received no private gain as a result of his participation in the fraudulent scheme;
and (3) that the use of the wires was not “in furtherance of” the fraudulent scheme.
United States v. Turner, 551 F.3d 657 (7th Cir. 2009). On December 30, 2008, the
United States Court of Appeals for the Seventh Circuit Court affirmed this Court on
each issue. Id.
4
On May 14, 2010, Petitioner filed the instant § 2255 Motion to Vacate, Set
Aside, or Correct Sentence, in which he raised five grounds for relief:
(1) in
violation of Brady v. Maryland, 373 U.S. 83 (1963), the prosecution failed to disclose
an FBI investigation into Dodie Stannard, a witness at his trial; (2) he was
selectively prosecuted because of his political affiliation; (3) his attorney provided
ineffective assistance by failing to present impeachment evidence against Stannard;
(4) this Court was without jurisdiction to try him; and (5) his sentence was excessive
because his attorney failed to challenge the PSR.
(Docs. 1 & 2).
The Court
dismissed Petitioner’s claim that it was without jurisdiction to try him, and ordered
the Government to respond to the remainder of Petitioner’s Motion. (Doc. 4). On
July 13, 2010, before the Government responded, Petitioner filed a Motion to
Amend his § 2255 Petition, in which he raised the additional argument that his
wire fraud conviction should be vacated in light of the Supreme Court’s decision in
Skilling v. United States, 130 S.Ct. 2896 (2010).
The Government filed its
Memorandum in Opposition to Petitioner’s § 2255 Motion on September 2, 2010
(Doc. 12), and Petitioner filed his Response on October 15, 2010 (Doc. 15).
DISCUSSION
Section 2255 of Title 28 of the United States Code permits a person in
custody to challenge his sentence on the basis that 1) it was imposed in violation of
the Constitution or laws of the United States, 2) the Court lacked jurisdiction to
impose such sentence, 3) the sentence was in excess of the maximum authorized by
5
law, or 4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a);
United States v. Carraway, 478 F.3d 845, 848 (7th Cir. 2007).
The Seventh Circuit Court of Appeals has held that “the grant of a habeas
writ is intended to be the exception, not the rule.” United States v. Kovic, 830 F.2d
680, 683 (7th Cir. 1987). “Relief under § 2255 is an extraordinary remedy because it
asks the district court essentially to reopen the criminal process to a person who
already has had an opportunity for full process.” Almonacid v. United States, 476
F.3d 518, 521 (7th Cir. 2007).
Thus, § 2255 is limited to correcting errors of
constitutional or jurisdictional magnitude or errors constituting a fundamental
defect that results in a complete miscarriage of justice. Kelly v. United States, 29
F.3d 1107, 1112 (7th Cir. 1994).
A § 2255 petition is not a substitute for a direct appeal. Doe v. United States,
51 F.3d 693, 698 (7th Cir. 1995). “An issue not raised on direct appeal is barred
from collateral review absent a showing of both good cause for and actual prejudice
resulting from the failure to raise it.” Mankarious v. United States, 282 F.3d 940
(7th Cir. 2002).
A showing of ineffective assistance of counsel can satisfy the
“cause” requirement for a § 2255 motion. For claims of ineffective counsel, the
Supreme Court established a two-prong test in Strickland v. Washington, 466 U.S.
668 (1984).
In order to prevail, Petitioner must establish that (1) counsel’s
representation fell below the threshold of objective reasonableness, and (2) but for
counsel’s deficiency, “there is a reasonable probability that . . . the result of the
proceeding would have been different.” Id. at 687, 694. In evaluating counsel’s
6
representation, the court must give great deference to the attorney’s performance,
due to the distorting effects of hindsight. Id. at 687.
A. The Government’s Failure to Disclose the FBI Investigation of
Dodie Stannard
Petitioner first alleges that the Government violated its obligations under
Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose prior to trial that one of
its witnesses, Dodie Stannard, was under investigation by the FBI. On August 29,
2005, Petitioner notified the OIG that Stannard was providing her neighbor
confidential information regarding bidding for cleaning supplies. (R.2 Doc. 15 at 9).
At some point, the FBI joined in the OIG’s ensuing investigation, and on October 13,
2005, FBI agents discussed the matter with Petitioner while they were also
questioning him concerning his role in the night janitors’ scheme. (R.2 Doc. 15 at
6).
According to the Government, the OIG and the FBI concluded their
investigations of Stannard on May 15, 2006, finding all of Petitioner’s allegations to
be without merit. (R.2 Doc. 12 at 12). Nevertheless, Petitioner maintains that the
defense may have used evidence of the FBI’s investigation to impeach Stannard’s
credibility, and that Stannard’s testimony was crucial to the Government’s case
against him. (R.2 Doc. 15 at 4-7).
“In order to mount a successful Brady challenge, a [petitioner] must establish
the following: (1) that the prosecution suppressed evidence; (2) that the evidence
was favorable to the defense; and (3) that the evidence was material to an issue at
trial.” United States v. Silva, 71 F.3d 667, 670 (7th Cir. 1995). To be material, the
evidence must be such that there is a “reasonable probability” that had it been
7
disclosed, the outcome of the trial would have been different. Id. In other words, it
must be such that its suppression “undermines confidence in the outcome of the
trial,” in light of the full context of the weight and credibility of all the evidence
actually presented at the trial. Id. The same standard applies to the suppression of
impeachment evidence. That is, the suppression of impeaching evidence “amounts
to a constitutional violation only if it deprives the defendant of a fair trial . . . in the
sense that its suppression undermines confidence in the outcome of the trial.”
United States v. Bagley, 473 U.S. 667, 678 (1985).
The Government maintains that it did not commit a Brady violation in this
case for several reasons: 1) it did, in fact, provide Petitioner and his attorneys with
discovery indicating that Stannard had been investigated by the FBI; 2) the FBI
investigation of Stannard had concluded prior to trial with a finding that the
allegations against her were unfounded, such that the evidence would not have
been admissible or material at trial regardless of its disclosure; and 3) substantial
evidence of Petitioner’s guilt existed in addition to Stannard’s testimony, such that
the allegedly suppressed evidence is not material. (R.2 Doc. 12 at 9-13). The Court
agrees with the Government that even if the prosecution did suppress evidence of
the FBI investigation into Stannard, it would not result in a Brady violation
because it was not material to outcome of the trial.3
The parties dispute whether or not discovery was produced as to the FBI
investigation of Stannard. As both parties cite to evidence that is not in the record
to support their arguments, and the question need not be reached, the Court
declines to address it herein.
3
8
At Petitioner’s trial, not only Stannard, but three of the janitor’s other
supervisors—Randy Lewis, James “Bo” Carter, and Harry Fanning—testified that
whenever they reported that Dinora and his crew were not at work when they
should have been, Petitioner ordered them to quit checking on Dinora and his crew,
reprimanded them, or relieved them of their duties. (R.1 Doc. 47 at 110-211).
James Carter testified that he was “night liaison” from approximately 1996
until December 2002. (R.1 Doc. 147 at 141). In this position, he was responsible for
checking on all the state-owned buildings and night janitors to make sure all work
was being completed. (R.1 Doc. 147 at 141). Carter testified that in 2001, he called
Dinora to his office and told him that him and his crew were going to need to start
staying at work and working in their assigned buildings. (R.1 Doc. 147 at 146).
Several days later, Carter’s boss told him to stay away from Dinora’s buildings. He
said that this message came from Petitioner. (R.1 Doc. 147 at 147). In the summer
of 2002, Carter was driving by one of Dinora’s buildings around 8:00 at night and
saw Dinora arriving at the building. (R.1 Doc. 147 at 148). The next day, Carter
was called into Petitioner’s office, and Petitioner told him to “stay the hell away
from over there and leave them alone.” (R.1 Doc. 147 at 148-49). Carter never
checked on Dinora’s crew again. (R.1 Doc. 147 at 149).
Harry Fanning replaced Carter as night liaison in January 2003.
He
testified that, shortly after he began in this position, he discovered that Dinora and
his crew were not working in their assigned buildings when they were supposed to
be. (R.1 Doc. 47 at 118-120). After he reported this incident to Stannard, who was
9
his boss, Fanning was called into Petitioner’s office.
(R.1 Doc. 47 at 123-124).
Petitioner yelled at Fanning and told him that “Whatever goes on in that building is
none of your concern” and that he should “leave my guys alone.” (R.1 Doc. 47 at
124). Fanning testified that as a result of this altercation, he did not check on
Dinora and his crew again until August of 2005. (R.1 Doc. 147 at 125).
Finally Randy Lewis testified that he was an operation office supervisor in
1998 and 1999. (R.1 Doc. 147 at 163). In this position he supervised Dinora. (R.1
Doc. 147 at 163). Because he was having attendance problems with Dinora, Lewis
testified that he had Dinora placed on proof status in March of 1999. (R.1 Doc. 147
at 165-69). Approximately five days later, Lewis was called into a meeting with
Petitioner. (R.1 Doc. 147 at 171). Petitioner was upset that Dinora had been placed
on proof status, and conveyed this to Lewis.
(R.1 Doc. 147 at 172).
Shortly
thereafter, Lewis was removed from the buildings at which Dinora worked, at the
direction of Petitioner. (R.1 Doc. 147 at 173-74). When Lewis was placed back onto
those buildings in 2000, Petitioner told him to stay away from them; accordingly
Lewis did not monitor Dinora and his crew the way he monitored the other janitors.
(R.1 Doc. 147 at 177-78).
In addition to this testimony concerning Petitioner’s role in the janitors’
scheme, Dinora also testified against Petitioner at trial. In addition to describing
other interactions with Petitioner where Petitioner helped him and his crew, Dinora
testified that 1) when he was upset about Randy Lewis he complained to Petitioner
and Petitioner said “he would take care of it;” (R.1 Doc. 148 at 246); 2) when he
10
noticed Carter watching him and his crew he reported it to Petitioner and asked
him to get Carter off their backs, and Petitioner responded that he would “handle
it;” (R.1 Doc. 148 at 252); and 3) after Fanning reported the incident in January
2003, Dinora talked to Petitioner and Petitioner told him that he would call
Fanning into his office and talk to him (R.1 Doc. 148 at 254). The Government also
played recordings of conversations between Petitioner and Dinora, indicating that
Petitioner was involved in aiding Dinora and his crew to get away with their
scheme.
Accordingly, even if the prosecution did suppress evidence that would go to
Stannard’s credibility, the Court cannot find that there is a “reasonable probability”
that had it been disclosed, the outcome of the trial would have been different. Silva,
71 F.3d at 670. In light of the full context of the weight and credibility of all the
evidence actually presented at the trial, the Court is confident that even had
evidence of the investigation into Stannard been revealed, the outcome would have
been the same. See id.4 Therefore, Petitioner’s first claim for relief based upon an
alleged Brady violation is denied.
B. Selective Prosecution
Petitioner next contends that the Government selectively prosecuted him
because of his political affiliation and race. (R.2 Doc. 15 at 7). He argues that the
Moreover, Petitioner was certainly aware of the OIG’s investigation of Stannard
(as he himself had initiated it), and his trial counsel made the professional decision
not to bring this matter up at trial. While Petitioner claims that it was ineffective
assistance of counsel for him not to do so, as the Court will discuss below, this claim
is without merit. Accordingly, evidence of a parallel investigation into Stannard’s
conduct which proved non-meritorious is not sufficient to undermine the Court’s
confidence in the outcome of the trial.
4
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janitors involved in the scheme, who were all white, entered into plea agreements
with the Government and were given more favorable treatment than him, and that
many of the of the witnesses against him were biased due to political and racial
differences. (R.2 Doc. 15 at 8).
To make a prima facie case of selective prosecution, Petitioner must show
that: (1) he was singled out for prosecution while other violators similarly situated
were not prosecuted; and (2) the decision to prosecute was based on an arbitrary
classification such as race, religion, or the exercise of constitutional rights. United
States v. Cyprian, 23 F.3d 1189, 1195 (7th Cir. 1994).
To establish selective
prosecution on an arbitrary classification, Petitioner must demonstrate that the
prosecutorial policy “had a discriminatory effect and that it was motivated by a
discriminatory purpose.” United States v. Armstrong, 517 U.S. 456, 465 (1996). “To
obtain an evidentiary hearing, the factual basis for these claims must be more than
colorable. In other words, [Petitioner] must proffer ‘sufficient evidence to raise a
reasonable doubt that the government acted properly in seeking the indictment.’”
Cyprian, 23 F.3d at 1195 (quoting United States v. Benson, 941 F.2d 598, 611 (7th
Cir. 1991)).
Petitioner has not succeeded in presenting a prima facie case of selective
prosecution. While Petitioner claims that the “scheme of ghost payrolling wasn’t
new and was in existence prior to the hiring of [Petitioner] as Director of Physical
Services,” and that “the chain of command that allowed this scheme to flourish went
below and much higher than [Petitioner],” he provides no factual support for these
12
statements. (Doc. 15 at 7). Moreover, the fact that the white janitors received more
favorable treatment because they pled guilty is not a basis for a claim of selective
prosecution. All four men were in fact indicted and prosecuted. The only difference
between Petitioner’s situation and theirs is that the other three men chose to accept
responsibility and cooperate.
The fact that their cooperation and acceptance of
responsibility was taken into account in the punishment they received is not
improper.
See United States v. Hall, 212 F.3d 1016, 1020 (7th Cir. 2000).
Accordingly, Petitioner’s claim of selective prosecution is denied.
C. Ineffective Assistance of Counsel
Petitioner also claims that he received ineffective assistance of counsel at
trial and during sentencing. As previously mentioned, in order to succeed on a
claim for ineffective assistance of counsel, Petitioner must establish that (1)
counsel’s representation fell below the threshold of objective reasonableness, and (2)
but for counsel’s deficiency, “there is a reasonable probability that . . . the result of
the proceeding would have been different.” Id. at 687, 694.
a. Failure to Cross-Examine Stannard
Petitioner first argues that his trial counsel was ineffective for failing to
cross-examine Stannard regarding the OIG’s investigation of her for bid-rigging. As
previously mentioned, Petitioner reported Stannard to the OIG on August 29, 2005
for allegedly tipping off her neighbor as to bidding on cleaning supplies. In May of
2006, four months prior to Petitioner’s trial, the OIG concluded its investigation and
found that all of Petitioner’s allegations were non-meritorious. (Doc. 12 at 12).
13
Petitioner argues that his attorney should have cross-examined Stannard regarding
this investigation because it would have displayed her bias against Petitioner and
her motivation to submit perjured testimony. (R.2 Doc. 15 at 9-10).
The Court does not find that Petitioner’s attorney’s failure to question
Stannard regarding the investigation fell below the objective standard of
reasonableness. The investigation into Stannard had concluded four months before
trial with a finding that Petitioner’s allegations against her were unfounded. (R.2
Doc. 12 at 16).
Accordingly, Stannard had no motivation to perjure herself at
Petitioner’s trial in order to curry Government favor.
Moreover, even if such
questioning could have shown the jury that Stannard had a bias against Petitioner
as Petitioner was the one who brought the initial complaint against her, it could
have also cut the opposite way and detracted from Petitioner’s credibility because
he had made a non-meritorious complaint to the OIG against a person who was
causing him difficulties. This is especially true because, based upon the factual
timeline, Petitioner did not lodge his complaint with the OIG until after Stannard
had begun looking into the janitors’ conduct and had written up a report detailing
her findings. Therefore, Petitioner’s attorney’s decision to keep this evidence out of
trial was not unreasonable, and therefore Petitioner’s first claim for ineffective
assistance of counsel is denied.
b. Failure to Object to PSR
Petitioner’s second claim for ineffective assistance of counsel is premised
upon his attorney’s failure to object to the PSR, specifically the aggravating factor of
14
Petitioner’s role in the janitors’ scheme. (R.2 Doc. 15 at 11-13). The PSR reflects a
two level increase in Petitioner’s offense level for Petitioner’s role in the offense, “as
the [Petitioner] abused a position of public trust and his position as Director of
Physical Services helped him conceal the offense.” (R.1 Doc. 89 ¶ 51). Petitioner
maintains that the Government presented insufficient evidence of his role in the
offense at trial and that therefore his attorney was ineffective for failing to object to
this two-level increase. (R.2 Doc. 15 at 11-13). According to Petitioner, the only
evidence of his role in the offense came from the biased and prejudicial testimony of
Doddie Stannard. (R.2 Doc. 15 at 12).
The Court disagrees.
As previously discussed, in addition to Stannard’s
testimony, three other supervisors testified that when they attempted to monitor
Dinora’s crew Turner told him to leave them alone. In addition, the Government
presented audio-taped conversations between Petitioner and Dinora demonstrating
Petitioner’s role in the offense, and Dinora himself testified to this effect. Based
upon all of this evidence, it was not unreasonable for Petitioner’s attorney to not
object to the two-level enhancement. See Rodriguez v. United States, 286 F.3d 972,
985 (7th Cir. 2002) (holding that it was not unreasonable for an attorney to fail to
raise an argument that was likely to fail). Moreover, Petitioner was not prejudiced
by his attorney’s failure to object, as the evidence at trial was sufficient to warrant
the enhancement. Accordingly, Petitioner’s second claim for ineffective counsel is
also denied.
15
D. Effect of Skilling Upon Petitioner’s Conviction
Following the filing of his initial Motion to Vacate, Petitioner amended his §
2255 Motion to include a claim that his conviction and sentences for wire fraud
should be vacated pursuant to the Supreme Court decision of Skilling v. United
States, 130 S.Ct. 2896 (2010).
The Government concedes that Skilling applies
retroactively to Petitioner’s conviction and sentence. (R.2 Doc. 12 at 19). However,
the Government contends that an application of Skilling does not require
Petitioner’s wire fraud convictions to be vacated because the conviction rested upon
proper grounds, and not upon an honest services theory which was discredited by
Skilling.
The wire fraud statute, 18 U.S.C. § 1343, makes it a crime to use the
interstate wires in “any scheme to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or promises.” To convict a
defendant of wire fraud, the Government must prove three elements: (1) the
defendant participated in a scheme to defraud; (2) the defendant intended to
defraud; and (3) the use of an interstate wire in furtherance of the fraudulent
scheme.
Turner, 551 F.3d at 664 (citing United States v. Radziszewski, 474 F.3d
480, 484-85 (7th Cir. 2007)). Section 1346 of Title 28 provides that a “scheme to
defraud” may include a scheme to deprive another of the intangible right of honest
services. 18 U.S.C. § 1346.
16
In Skilling, the Supreme Court narrowed the scope of the honest services
fraud statute to include only cases involving bribes or kickbacks. 130 S.Ct. at 2931.
It is undisputed that Petitioner was not alleged to have received any form of bribe
or kickback in this case. See Turner, 551 F.3d at 665 (“There is no evidence that
[Petitioner] received kickbacks or otherwise personally profited from the janitors’
inflated salaries.”). Accordingly, if Petitioner’s conviction rested upon an honest
services theory alone, there would be no doubt that it must be vacated. However,
the Government points to language in the jury instructions which required the jury
to find that Petitioner committed monetary wire fraud before convicting him of
honest services fraud. Upon a review of Petitioner’s criminal case record, the Court
finds this argument to be unavailing.
Petitioner was charged four counts of wire fraud in violation of 18 U.S.C. §§
1343, 1346 and 2. At trial, the Government’s wire fraud theory was that Petitioner
either aided and abetted the night janitors’ fraudulent scheme or deprived the State
of Illinois of his honest services. Turner, 551 F.3d at 661. The relevant Jury
Instructions were as follows:
“To sustain the charge of wire fraud, the Government must prove the
following propositions:
First, that the defendant knowingly participated in this scheme
to defraud or to obtain money or property by means of false pretenses,
representations or promises, or that the defendant participated in a
scheme to defraud the State of Illinois of the defendant’s honest services
as described in Counts I through IV of the indictment.
Second, that the defendant did so knowingly and with the intent to defraud.
17
And third, that for the purpose of carrying out the scheme, or
attempting to do so, the defendant cased interstate wire
communications to take place in a manner charged in the particular
count.
If you find from your consideration of all of the evidence that
each of these propositions has been proved beyond a reasonable doubt,
then you should find the defendant guilty.” (R.1 Doc. 157 at 10-11
(emphasis added)).
The jury was also separately instructed as to the Government’s honest
services fraud theory:
“One way in which it is alleged that the defendant violated the
wire fraud statute is by defrauding the Secretary of State’s Office and
the State of Illinois of its honest service.
In this regard the
Government must prove that the defendant’s conduct breached a duty
respecting the services owed to the Secretary of State Office and the
State of Illinois. Stated another way, honest services contemplates
that in rendering some particular service or services, the defendant
was conscious of the fact that his actions were something less than in
the best interest of the state. . . . In addition to all of the elements of the
wire fraud violation, it must be established beyond a reasonable doubt
that the defendant’s misuse of his position resulted in private gain.”
(R.1 Doc. 157 at 11-12 (emphasis added)).
Based upon this second jury instruction, the Government argues that the jury
could not have convicted Petitioner under an honest services theory without first
finding that he committed all of the acts necessary to support a guilty verdict for the
monetary wire fraud. (R.2 Doc. 12 at 22). However, as Petitioner correctly points
out in his Response, the jury instruction as to monetary wire fraud also
incorporated the alternative theory of honest services fraud as a method for proving
a scheme to defraud. As such, the Court cannot determine whether or not the jury’s
verdict was based upon a monetary scheme to defraud or rather the now legally
improper ground of honest services fraud, and therefore Petitioner’s wire fraud
18
convictions must be vacated. See United States v. Colvin, 353 F.3d 569, 576-77 (7th
Cir. 2003) (citing Yates v. United States, 354 U.S. 298, 312 (1957) (“[A] verdict [must
be] set aside in cases where the verdict is supportable on one ground, but not
another, and it is impossible to tell which ground the jury selected)).5
The Seventh Circuit’s opinion on Petitioner’s direct appeal is not to the
contrary. On appeal, Petitioner argued that his wire fraud convictions must be
vacated because the Government’s evidence of an honest services fraud was
insufficient. Turner, 551 F.3d at 664. The Seventh Circuit rejected Petitioner’s
argument, finding that even if the evidence of an honest services fraud was
insufficient, because the evidence at trial was sufficient to establish that Petitioner
aided and abetted a straight forward money or property fraud, his wire-fraud
convictions could stand on that basis. Id. at 665-66. However, in so finding, the
Seventh Circuit recognized that its alternative-basis-analysis was only proper
because Petitioner was challenging the factual sufficiency of his conviction, rather
than the legal sufficiency. Id. (“Although reversal is generally required when on a
general verdict only one of two bases for the conviction is legally sound, the same is
not true when the issue is factual, not legal, sufficiency.” (internal citations
omitted)). As Petitioner is now challenging the legal sufficiency of his conviction,
the Court cannot rest upon the proper theory of a straightforward monetary fraud
While Petitioner’s wire fraud convictions are hereby vacated, the Court notes that
Petitioner was also properly convicted of two counts of making false statements, for
which his three year sentence, which he has already served, was to run
concurrently. Moreover, the Court need not reach the issue of whether or not the
imposed restitution was erroneous because a Petitioner cannot challenge a
restitution order pursuant to § 2255. Barnickel v. United States, 113 F.3d 704, 706
(7th Cir. 1997).
5
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absent indication that this was the basis upon which the jury convicted Petitioner.
For the reasons previously discussed, the Court cannot find that the jury’s general
verdict was based upon the Government’s monetary-fraud theory rather than its
honest services theory, and therefore the wire fraud convictions must be vacated.
CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (R.2 Doc. 1) is GRANTED in part and
DENIED in part.
It is GRANTED to the extent that Petitioner’s wire fraud
convictions under Counts I-IV of the Amended Indictment in case number 06-cr30012 are hereby VACATED.
It is DENIED in all other respects.
IT IS SO
ORDERED.
CASE TERMINATED.
Entered this 31st day of August, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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