In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3018

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEX MCLECZYNSKY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 723—Joan B. Gottschall, Judge.

____________

ARGUED MAY 17, 2002—DECIDED JULY 24, 2002

____________

Before BAUER, POSNER and KANNE, Circuit Judges.

BAUER, Circuit Judge. A federal grand jury returned a

superseding indictment charging defendant-appellant, Alex

McLeczynsky, with four counts of RICO and Hobbs Act

violations. Following a jury trial, McLeczynsky was found

guilty on three of the four counts. The district court sentenced McLeczynsky to a total term of thirty (30) months.

McLeczynsky appeals his conviction and sentence, arguing that Count Two of the indictment inadequately stated

the subject offense and that the government referred to

his failure to testify in closing argument. Because each of

these arguments is without merit, we AFFIRM.
2 No. 01-3018

Background

On April 11, 2000, a grand jury returned a superseding

indictment charging McLeczynsky with violations of 18

U.S.C. § 1962(d) (RICO conspiracy, Count I); 18 U.S.C.

§ 1951 (Hobbs Act conspiracy, Count II); and 18 U.S.C.

§§ 1951, 1952 (substantive Hobbs Act violations, Counts III

and IV). The charges and subsequent conviction stem from

his involvement in a conspiracy to extort money from unqualified applicants for the fraudulent issuance of commercial driver’s license (“CDL”) permits by employees of the

Illinois Secretary of State driver’s license facility in Melrose Park.

McLeczynsky began actively participating in the conspiracy in 1998, while working as a driving instructor

at Viking Driving School in Elk Grove Village, Illinois (“Viking”). Viking shared use of its facilities with two other

driving schools, Mega Driving School (“Mega”) and Vistula

Driving School. Throughout 1997 and 1998, McLeczynsky had repeated contact with a former student, Janusz

Krzyzak, who was then working as a driver instructor at

Mega.

In the spring of 1998, Krzyzak informed McLeczynsky that it was possible for applicants who could not

legitimately obtain CDL permits to get their permits by

paying cash bribes to certain employees of the Illinois

Secretary of State. After receiving this information, McLeczynsky approached Krzyzak to tell him about some

applicants who were willing to pay money in order to obtain their CDL permits. At the time of this initial encounter, Krzyzak responded that the Secretary of State employees with whom he was connected were not currently

“accepting applicants.”

Sometime in late May or early June of 1998, Krzyzak

informed McLeczynsky that the Secretary of State employees were once again accepting applicants. In June, Mc-
No. 01-3018 3

Leczynsky told Krzyzak that he had applicants who

were ready to pay money to obtain permits. In turn,

Krzyzak told McLeczynsky that he needed $600 to pass

on to a Secretary of State employee, and that he and McLeczynsky could split whatever additional money McLeczynsky was able to extort from the applicants. Operating

under these general terms, McLeczynsky and Krzyzak arranged for a total of approximately five unqualified applicants to pay bribes to Secretary of State employees in exchange for fraudulently issued CDL permits from June

to September of 1998.

Discussion

A) Sufficiency of the Indictment

We review the sufficiency of an indictment de novo. An

indictment is deemed sufficient if it: (1) states the elements

of the offense charged; (2) fairly informs the defendant

of the nature of the charge so that he may prepare a

defense; and (3) enables him to plead an acquittal or conviction as a bar against future prosecutions for the same

offense. Hamling v. United States, 418 U.S. 87, 117 (1974);

United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir.

2002). Additionally, when determining the sufficiency of

an indictment, we look at the contents of the subject indictment “on a practical basis and in [its] entirety, rather

than in a hypertechnical manner.” United States v. Smith,

230 F.3d 300, 305 (7th Cir. 2000) (citations omitted).

McLeczynsky argues that Count II (Hobbs Act conspiracy) of the indictment at issue here is insufficient because

it alleged that he was liable as an agent for private individuals who cannot be found guilty of extortion under

the Hobbs Act. The Hobbs Act defines extortion as the

“obtaining of property from another with his consent, induced by wrongful use of actual or threatened force,

violence, or fear, or under color of official right.” 18 U.S.C.

§ 1951 (emphasis added). Thus, to survive the test of suf-
4 No. 01-3018

1 Ordinarily, in determining the sufficiency of an indictment, we

will not insist that any particular word or phrase be used. See,

(continued...)

ficiency, the superseding indictment must allege that McLeczynsky conspired with, aided and abetted extortion

by a public official. See United States v. McClain, 934

F.2d 822, 826-27 (7th Cir. 1991) (private individual may

be charged with and convicted of extortion under color

of official right if that individual conspired or acted in coordination with public officer). The indictment contains

these requisite allegations.

When read in its entirety and including the incorporated allegations from Count I, Count II describes in great

detail McLeczynsky’s role as an intermediary between

bribe payors and payees who, for personal profit, participated in a scheme by which corrupt Secretary of State

employees obtained cash payments in exchange for their

assistance in issuing fraudulent CDL permits to unqualified

applicants. While McLeczynsky’s role as an intermediary

may properly be characterized as that of a “double agent,”

it is the nature of his relationship with the Secretary of

State employees, not those private individuals who paid

cash for a fraudulent CDL permit, that matters for purposes of determining his potential and ultimate liability

under the Hobbs Act. See McClain, 934 F.2d at 827 (intermediary between private individuals and public officers

in illegal extortion scheme may be liable as co-conspirator);

see also United States v. Wright, 797 F.2d 245, 252-53

(5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987) (participant in communicating, negotiating and collecting extortion demand properly charged with aiding and abetting

under Hobbs Act). As Count II alleges that McLeczynsky

acted in coordination with public officers employed by the

Illinois Secretary of State in extorting money from unqualified CDL applicants, its terms sufficiently set forth a Hobbs

Act violation.1
No. 01-3018 5

1 (...continued)

e.g., United States v. Smith, 223 F.3d 554, 572 (7th Cir. 2000);

United States v. Garcia-Geronimo, 663 F.2d 738, 742 (7th Cir.

1981). Nonetheless, we note our belief that the government’s

inclusion of the allegation that McLeczynsky acted as an “agent”

of the extortion victims in the second paragraph of Count II,

though not a deficiency warranting reversal, was flawed.

2 The government does make the argument that McLeczynsky

forfeited his objection to the challenged remarks, which would result in plain error review. United States v. Linwood, 142 F.3d 418,

422-23 (7th Cir. 1998). After reviewing the record, we find no

forfeiture.

B) Propriety of Prosecutor’s Closing Argument

We review both the district court’s denial of McLeczynsky’s motion for a mistrial and its decision to allow

the prosecutor’s comments during closing argument to

stand for an abuse of discretion.2

In his motion for a new trial, McLeczynsky challenged the

following remarks made by the prosecutor during the government’s opening summation:

Now, it’s absolutely true, and it is always the case

that the burden of proof rests rights [sic] here at this

table throughout the whole trial. But you know Mr.

Durkin and Mr. Blegen [defense counsel], they spent

a lot of time cross-examining witnesses, they spent a

lot of time asking a lot of questions, and they even

put in some exhibits and a stipulation about Ms.

Fajdich, so they did put in some evidence. So the question is, ladies and gentlemen: What is the defense to

this overwhelming evidence of the defendant’s knowing involvement?

Trial Transcript, vol. 9, 1814. McLeczynsky argues that

these comments improperly shifted the burden of proof

by alluding to his failure to testify, thereby violating his

Fifth Amendment rights.
6 No. 01-3018

In denying McLeczynsky’s motion, the district court

found that to the extent that the prosecutor attempted to

shift the burden of proof, any potential prejudice was immediately cured by the court’s admonition to the jury about

the proper placement of the burden of proof. We agree with

this assessment.

Conclusion

The conviction and sentence of the defendant-appellant,

Alex McLeczynsky, is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—7-24-02