Counts Three and Four expressly allege that the defendants “devised, intended to devise, and
participated in a scheme to defraud and deprive Cook County, its Board of Review, and its
citizens of their right to the honest services of Hawkins and Racasi through bribery.” See Count
Three, { 3; Count Four, § 2 (emphasis added). In view of the indictment’s express allegations of
bribery in these counts, the defendants’ invocation of Skilling is utterly unavailing.

Finally, the defendants argue that the indictment should be dismissed due to “outrageous
government conduct.” In advancing this argument, defense counsel again ignore controlling
Seventh Circuit precedent holding that this defense “does not exist in this circuit.” United States
v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995). Even if it did, the circumstances about which the
defendants complain are not in the least “outrageous.” The defendants maintain that the
government failed to apprise the grand jury that defendant Hawkins was a drug addict and that
Individual B, who was a cooperating Chicago police officer, could have arrested him if he
refused to participate in the bribery scheme.’ As the government points out, however, there is no
right to the presentation of exculpatory evidence in the grand jury, see United States v. Mahalick,
498 F.3d 475, 479-480 (7th Cir. 2007), so failing to do so does not remotely smack of outrageous
misconduct. It is also difficult to credit the hypothesis that the defendant was prejudiced by the
government’s failure to tell the jury that he was a drug addict who was susceptible to arrest at
virtually any moment because he always had illegal drugs in his possession. Indeed, the
prejudice argument might be stronger (it could not be weaker) had the government presented that
information to the grand jury; it is not difficult to imagine in that case the defendant claiming
that the government tried to poison the well with other crimes evidence that has nothing to do

with the charges the grand jury actually returned.

3 Even if this assertion presented a viable defense, it is not clear why defendant Racasi would be
entitled to assert it, as the alleged misconduct did not relate to him.

5


and is therefore sufficient. United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000). In claiming
that they would influence the outcome of the appeals of the assessments of these properties (or so
the indictment alleges), the defendants corruptly agreed to receive bribes with the intent of being
rewarded for having done so, whether or not they actually did anything to bring about a more
favorable assessment.

Counsel for the defendants compound their error in failing to cite Gee and/or Boender in
their opening brief by badly mischaracterizing the Seventh Circuit’s opinions in United States v.
Medley, 913 F.2d 1248 (7th Cir. 1990) and United States v. Agostino, 132 F.3d 1183 (7th Cir.
1997). The defendants characterize Medley as holding that a quid pro quo is an element of a
§ 666(a)(1)(B) charge and maintain that the Circuit Court confirmed that fact in Agostino even
while declining to similarly construe § 666(a)(2). In Medley, however, the Court did not address
the substance of the quid pro quo issue and, if anything, its holding supports a contrary view in
that the court affirmed jury instructions that did not even advise the jury that the actions had to
be done “corruptly.” The court’s statement that “the essential element of a section 666 violation
is a ‘quid pro quo’,” 913 F.2d at 1260, was dicta and, as the Agostino court subsequently pointed
out, “[i]t is clear from the context that the Medley court was not positing an additional element to
the statutory definition of the crime, but instead was explaining the sine qua non of a violation of
§ 666. The elements of the offense remain those that are set forth in the statutory language.” 132
F.3d at 1190.

The defendants’ challenge to Counts Three and Four of the indictment is no stronger.
They correctly note that the Supreme Court held in Skilling v. United States, 130 S. Ct. 2896
(2010), that honest services fraud under the mail and wire fraud statutes is limited to frauds

involving bribes or kickbacks. But that fact is of no moment for these defendants, because


In closing, the Court notes that it finds defense counsel’s arguments in this motion to be
frivolous. Counsels’ failure to cite and discuss controlling precedent from the Seventh Circuit is
particularly troubling; the Court is at a loss as to how counsel could file a motion asserting, in
good faith, that Medley holds that there is a quid pro quo requirement in a § 666(a)(1)(B) charge
in view of the clear statements the Seventh Circuit has made on that issue in Agostino, Gee, and
Boender. The Court recognizes that defense counsel have an obligation to consider any colorable
argument on behalf of their clients, but there is no obligation to advance arguments that are
plainly foreclosed by circuit precedent. On occasion, zealous advocacy may obscure the precise
boundaries of permissible argument, but in this motion the arguments presented lie well outside
those boundaries. In filing this motion, counsel have needlessly required both the Government
and the Court to expend resources addressing arguments that should never have been made.
Counsel are cautioned to pay more heed to the boundaries between colorable and frivolous
arguments in the future.

The defendants’ motion to dismiss the superseding indictment is denied.

John J. Tharp, Jr.
United States District Judge

ENTER: March 12, 2013


UNITED STATES DISTRICT COURT
NORTHERN DISTICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, ) No. 12 CR 528

) Judge John J. Tharp, Jr.
v. )
)
THOMAS HAWKINS and )
JOHN RACASI, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

The defendants move to dismiss the superseding indictment on several grounds. Their
principal arguments are variations on the same central theme: they claim that the indictment fails
to adequately allege that they agreed to provide a guid pro quo in exchange for bribery payments
they received and solicited. That argument does not bear even cursory scrutiny and the
defendants’ other arguments are no stronger. Their motion to dismiss the indictment is therefore
denied.

Taking the facts as alleged, which the Court must do on a motion to dismiss the
indictment, the defendants work for the Cook County Board of Review, which reviews appeals
of property tax assessments by the Cook County Assessor. There are three Commissioners on the
Board, each of whom has staff members, including analysts, who assist in reviewing appeals and
making recommendations to the Commissioner about how to vote on the appeals that come
before the Board. During the period at issue—August 2008 through July 2009—the defendants
were analysts on the staff of Commissioner A.

The indictment alleges that the defendants worked together to exploit their positions to

obtain bribes in exchange for influencing the appeals process to produce favorable outcomes for


property owners appealing their assessments. It describes two schemes in particular, both of
which also involved Individual B, who was working for the government at the time as a
confidential source.! In the first of the schemes (“Scheme 1”), the defendants worked to obtain
reductions in property tax assessments of three separate residential properties; the other scheme
(“Scheme 2”) related to a group of 11 condominium units located within a single building.

In Scheme 1, the indictment alleges that Individual B identified the three properties for
which he was seeking property tax assessment reductions and that the defendants claimed that
they would ensure that at least two of the three commissioners on the Board voted in favor of
reducing the property tax assessments on those properties. The defendants later provided
Individual B with Board of Review Analysis/Evidence sheets for each of the properties, showing
that the assessments had been reduced. On September 16, 2008, the indictment alleges, each of
the defendants separately called Individual B to tell him that they needed to receive their
payment and, the next day, Individual B paid a $1500 bribe to the defendants for their assistance
in reducing the assessments on the three properties.

Scheme 2 took place in 2009. After Individual B provided a list of the 11 condominium
units, the indictment alleges that the defendants told Individual B that they would work to obtain
reductions of the tax assessments on the properties with the assistance of another Board of
Review employee, Individual C. The defendants completed and filed the paperwork necessary to
appeal the assessments on these properties (and signed the names of the property owners) and,
two months later, they showed Individual B documentation of the reduction in the assessment on

each of the units. The defendants then agreed with each other and with Individual B that they

' The defendants represent, and the Court accepts as true for purposes of this motion, that
Individual B “is a Chicago Police Officer arrested in an investigation of public corruption and
gun trafficking, who is cooperating in hopes of a recommendation for a reduced sentence in
connection with expected forthcoming charges.”

2


would collect a $150 bribe payment from each of the property owners, which they would split
three ways.

In Counts One and Two of the superseding indictment, the defendants are charged with
conspiring to receive, and receiving, bribes in violation of 18 U.S.C. § 371 (Count One) and
§ 666(a)(1)(B) (Count Two). The defendants argue that these counts are deficient because the
government does not explicitly allege a quid pro quo—i.e., that they actually took a specific
action in exchange for the payment from Individual B. Rather, the counts allege only that the
defendants “claimed” that they would secure the requested reductions in the assessments of those
properties. In advancing this argument, the defendants ignore controlling Circuit precedent
holding that there is no quid pro quo requirement for conviction under § 666(a)(1)(B). See
United States v. Gee, 432 F.3d 713, 714 (7th Cir. 2005) (a quid pro quo is sufficient but not
necessary to violate § 666(a)(1)(B)); United States v. Boender, 649 F.3d 650, 654 (7th Cir. 2011)
(citing Gee in noting that “it is clear that our circuit, like most others, does not require a specific
quid pro quo”). The indictment alleges that the defendants corruptly received and agreed to
receive cash from Individual B and/or the owners of the condo units with the intent to be
influenced or rewarded in connection with County business, namely property tax assessments,

and that is all that the statute requires. The indictment tracks the statutory language and elements,

2 In their reply, the defendants maintain that Gee and Boender are distinguishable because the
defendants in those cases were convicted of offering bribes whereas here the defendants are
charged with receiving bribes. That claim is not correct. In Gee, the defendant was convicted not
of offering a bribe but of conspiring to violate § 666(a)(1)(B), the same statute the defendants are
charged with violating. Boender was a case under § 666(a)(2), but there the Court merely
observed that its holding that there was no quid pro quo requirement for offering a bribe is
consistent with this Circuit’s view that there is no quid pro quo requirement in the “parallel
provision” of § 666(a)(1)(B) for receiving a bribe. In neither case did the Seventh Circuit
remotely suggest that the distinction between offering a bribe and receiving one has any
relevance to the question of whether there is a guid pro quo requirement in either provision of
the bribery statute.