In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 11-3853

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROD BLAGOJEVICH,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 08 CR 888-1 — James B. Zagel, Judge.

____________________

ARGUED DECEMBER 13, 2013 — DECIDED JULY 21, 2015

____________________

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge. Rod Blagojevich was convicted of 18 crimes after two jury trials. The crimes include

attempted extortion from campaign contributors, corrupt 

solicitation of funds, wire fraud, and lying to federal investigators. The first trial ended with a conviction on the falsestatement count and a mistrial on the others after the jury 

could not agree. The second trial produced convictions on 17 

additional counts. At the time of his arrest in December 2008, 
2 No. 11-3853

Blagojevich was Governor of Illinois; the state legislature

impeached and removed him from office the next month. 

The district court sentenced Blagojevich to 168 months’ imprisonment on the counts that authorize 20-year maximum 

terms, and lesser terms on all other counts. All sentences run 

concurrently, so the total is 168 months. Because the charges 

are complex, the trials long, and the issues numerous, an effort to relate many details would produce a book-length 

opinion. Instead we present only the most important facts 

and discuss only the parties’ principal arguments. All else 

has been considered but does not require discussion.

The events leading to Blagojevich’s arrest began when 

Barack Obama, then a Senator from Illinois, won the election 

for President in November 2008. When Obama took office in 

January 2009, Blagojevich would appoint his replacement, to 

serve until the time set by a writ of election. See Judge v. 

Quinn, 612 F.3d 537 (7th Cir. 2010). Before the 2008 election, 

federal agents had been investigating Blagojevich and his 

associates. Evidence from some of those associates had led to 

warrants authorizing the interception of Blagojevich’s phone 

calls. (The validity of these warrants has not been contested 

on this appeal.) Interceptions revealed that Blagojevich 

viewed the opportunity to appoint a new Senator as a bonanza.

Through intermediaries (his own and the Presidentelect’s), Blagojevich sought a favor from Sen. Obama in exchange for appointing Valerie Jarrett, who Blagojevich perceived as the person Sen. Obama would like to have succeed 

him. Blagojevich asked for an appointment to the Cabinet or 

for the President-elect to persuade a foundation to hire him 

at a substantial salary after his term as Governor ended, or 
No. 11-3853 3

find someone to donate $10 million and up to a new “socialwelfare” organization that he would control. The Presidentelect was not willing to make a deal, and Blagojevich would 

not appoint Jarrett without compensation, saying: “They’re 

not willing to give me anything except appreciation. Fuck 

them.”

Blagojevich then turned to supporters of Rep. Jesse Jackson, Jr., offering the appointment in exchange for a $1.5 million “campaign contribution.” (We put “campaign contribution” in quotation marks because Blagojevich was serving 

his second term as Governor and had decided not to run for 

a third. A jury was entitled to conclude that the money was 

for his personal benefit rather than a campaign.) Blagojevich 

broke off negotiations after learning about the wiretaps, and 

he was arrested before he could negotiate with anyone else.

The indictment charged these negotiations as attempted 

extortion, in violation of 18 U.S.C. §§ 2 and 1951, plus corrupt solicitation of funds (18 U.S.C. §§ 371 and 666(a)(1)(B)) 

and wire fraud (18 U.S.C. §§ 1343 and 1346). The indictment 

also charged Blagojevich with other attempts to raise money

in exchange for the performance of official acts, even though 

federal law forbids any payment (or agreement to pay), including a campaign contribution, in exchange for the performance of an official act. See McCormick v. United States, 

500 U.S. 257 (1991). We give just two examples.

First, when lobbyists for Children’s Memorial Hospital 

sought an increase in reimbursement rates for Medicaid patients, Blagojevich (through intermediaries) replied that he 

would approve an extra $8 to $10 million of reimbursement 

in exchange for a “campaign contribution” of $50,000. Blagojevich initially approved a rate increase but delayed and 
4 No. 11-3853

then rescinded it when waiting for a contribution; he was 

arrested before any money changed hands. 

Second, after the state legislature had approved an extension of a program that taxed casinos for the benefit of racetracks—see Empress Casino Joliet Corp. v. Balmoral Racing 

Club, Inc., 651 F.3d 722 (7th Cir. 2011) (en banc); Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723 (7th Cir. 2014)—but 

before Blagojevich signed the bill, he attempted to ensure

that John Johnston, who owned interests in two of the racetracks, fulfilled a $100,000 “campaign” pledge. Blagojevich 

had intermediaries inform Johnston that the bill would not 

be signed until the money arrived. Blagojevich was arrested 

before he signed the bill (and before Johnston signed a 

check).

These charges led to guilty verdicts at the second trial. 

The charge that produced a guilty verdict at the first trial 

was that Blagojevich had lied to the FBI in 2005, violating 18 

U.S.C. §1001. Investigations of Blagojevich’s associates began 

shortly after he took office as Governor in 2003, and by 2005

the FBI wanted to ask Blagojevich what he knew about his 

associates’ conduct. He agreed to an interview in his lawyer’s office. Agents asked whether Blagojevich took contributions into account when approving state contracts or making appointments. He replied “that he does not track who 

contributes to him and does not want to know and does not 

keep track of how much they contribute to him.” So an agent

testified, relying on his notes. At Blagojevich’s insistence, the 

interview was not recorded, but a jury could find the agent’s 

testimony accurate. The jury also concluded that this answer 

was knowingly false, because in 2005 and earlier Blagojevich 

regularly found out who contributed how much. (The jury 
No. 11-3853 5

was told to assess the honesty of this answer based solely on 

how Blagojevich had conducted himself from 2003 through 

2005.)

Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich’s own 

mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution’s evidence and to find that Blagojevich acted with the knowledge 

required for conviction.

But a problem in the way the instructions told the jury to 

consider the evidence requires us to vacate the convictions 

on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to 

the Cabinet. A jury could have found that Blagojevich asked 

the President-elect for a private-sector job, or for funds that 

he could control, but the instructions permitted the jury to 

convict even if it found that his only request of Sen. Obama 

was for a position in the Cabinet. The instructions treated all 

proposals alike. We conclude, however, that they are legally

different: a proposal to trade one public act for another, a 

form of logrolling, is fundamentally unlike the swap of an 

official act for a private payment.

Because the instructions do not enable us to be sure that 

the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir. 2014), with Griffin v. United States, 

502 U.S. 46 (1991). (Perhaps because the jury deadlocked at 

the first trial, the United States does not seriously contend 
6 No. 11-3853

that any error was harmless; a one-line statement in the brief 

differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 

60–62 (2008) (an error of this kind is not “structural”).)

McCormick describes the offense as a quid pro quo: a public 

official performs an official act (or promises to do so) in exchange for a private benefit, such as money. See also United 

States v. Sun-Diamond Growers of California, 526 U.S. 398, 404–

05 (1999); United States v. McDonnell, 2015 U.S. App. LEXIS

11889 (4th Cir. July 10, 2015). A political logroll, by contrast, 

is the swap of one official act for another. Representative A 

agrees with Representative B to vote for milk price supports, 

if B agrees to vote for tighter controls on air pollution. A 

President appoints C as an ambassador, which Senator D 

asked the President to do, in exchange for D’s promise to 

vote to confirm E as a member of the National Labor Relations Board. Governance would hardly be possible without 

these accommodations, which allow each public official to 

achieve more of his principal objective while surrendering 

something about which he cares less, but the other politician 

cares more strongly.

A proposal to appoint a particular person to one office 

(say, the Cabinet) in exchange for someone else’s promise to 

appoint a different person to a different office (say, the Senate), is a common exercise in logrolling. We asked the prosecutor at oral argument if, before this case, logrolling had 

been the basis of a criminal conviction in the history of the 

United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research 

did not turn one up. It would be more than a little surprising 

to Members of Congress if the judiciary found in the Hobbs 
No. 11-3853 7

Act, or the mail fraud statute, a rule making everyday politics criminal.

Let’s work this through statute by statute. Section 1951, 

the Hobbs Act, which underlies Counts 21 and 22, forbids 

interference with commerce by robbery or extortion. Blagojevich did not rob anyone, and extortion, a defined term, 

“means 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”

(§1951(b)(2)). The indictment charged Blagojevich with the 

“color of official right” version of extortion, but none of the 

evidence suggests that Blagojevich claimed to have an “official right” to a job in the Cabinet. He did have an “official 

right” to appoint a new Senator, but unless a position in the 

Cabinet is “property” from the President’s perspective, then 

seeking it does not amount to extortion. Yet a political office 

belongs to the people, not to the incumbent (or to someone 

hankering after the position). Cleveland v. United States, 531 

U.S. 12 (2000), holds that state and municipal licenses, and 

similar documents, are not “property” in the hands of a public agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet 

job, so an attempt to get him to appoint a particular person 

to the Cabinet is not an attempt to secure “property” from 

the President (or the citizenry at large).

Sekhar v. United States, 133 S. Ct. 2720 (2013), shows that 

the phrase “obtaining of property” in the Hobbs Act must 

not be extended just to penalize shady dealings. Sekhar holds 

that a recommendation about investments is not “property”

under §1951(b)(2) for two principal reasons: first, in the long 

history of extortion law it had never before been so under-
8 No. 11-3853

stood (similarly, political logrolling has never before been 

condemned as extortion); second, the making of a recommendation is not transferrable. The Court restricted “property” to what one owner can transfer to another. By that 

standard a job in the Cabinet (or any other public job) is not 

“property” from the employer’s perspective. It is not owned 

by the person with appointing power, and it cannot be 

deeded over. The position may be filled by different people, 

but the position itself is not a transferrable property interest.

A position is “held” or “occupied” but not “obtained,” and 

under Sekhar something that cannot be “obtained” also cannot be the subject of extortion.

Section 666, the basis (through a conspiracy charge) of 

Count 23, forbids theft or bribery in publicly funded programs (of which the State of Illinois is one). Count 23 relies 

on §666(a)(1)(B), which makes it a crime for an agent of a 

covered organization to solicit “corruptly ... anything of 

value” in connection with a transaction worth $5,000 or 

more. “Corruptly” refers to the recipient’s state of mind and 

indicates that he understands the payment as a bribe or gratuity. United States v. Hawkins, 777 F.3d 880, 882 (7th Cir. 

2015). It would not be plausible to describe a political trade 

of favors as an offer or attempt to bribe the other side. What 

is more, §666(c) provides that the section as a whole does not 

apply “to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual 

course of business.” Compensation for a job by someone 

other than a ghost worker is a “bona fide salary”—and, as 

we’ve pointed out, the “usual course of business” in politics

includes logrolling.
No. 11-3853 9

The indictment also charged Blagojevich with wire fraud, 

in violation of 18 U.S.C. §1343. That the negotiations used 

the phone system is indisputable, but where’s the fraud? 

Blagojevich did not try to deceive Sen. Obama. The prosecutor contended that Blagojevich deprived the public of its intangible right to his honest services, which 18 U.S.C. §1346 

defines as a form of fraud. To call this an honest-services 

fraud supposes an extreme version of truth in politics, in 

which a politician commits a felony unless the ostensible 

reason for an official act also is the real one. So if a Governor 

appoints someone to a public commission and proclaims the 

appointee “the best person for the job,” while the real reason 

is that some state legislator had asked for a friend’s appointment as a favor, then the Governor has committed wire 

fraud because the Governor does not actually believe that 

the appointee is the best person for the job. That’s not a 

plausible understanding of §1346, even if (as is unlikely) it 

would be valid under the First Amendment as a criminal 

penalty for misleading political speech. And no matter what 

one makes of the subject, the holding of Skilling v. United 

States, 561 U.S. 358 (2010), prevents resort to §1346 to penalize political horse-trading. Skilling holds that only bribery 

and kickbacks violate §1346. So unless political logrolling is 

a form of bribery, which it is not, §1346 drops out.

The prosecutor insists, however, that Blagojevich’s situation is different and uncommon because he sought a post in 

the Cabinet for himself. It isn’t clear to us that this is unusual. The current Secretary of State was appointed to that position from a seat in the Senate, and it wouldn’t surprise us if

this happened at least in part because he had performed a 

political service for the President. Ambassadors, too, come 
10 No. 11-3853

from the House or Senate (or from state politics) as part of 

political deals.

Some historians say that this is how Earl Warren came to 

be Chief Justice of the United States: he delivered the California delegation at the 1952 Republican convention to Eisenhower (rather than Senator Taft) in exchange for a commitment to appoint him to the next vacancy on the Supreme 

Court. See, e.g., Morton J. Horwitz, The Warren Court and the 

Pursuit of Justice 7 (1998); Arthur Paulson, Realignment and 

Party Revival: Understanding American Electoral Politics at the 

Turn of the Twenty-First Century 86 (2000). Whether this account is correct is debatable, see Jim Newton, Justice for All: 

Earl Warren and the Nation He Made 6–11 (2006), and Chief 

Justice Warren himself denied that a deal had been made 

(though perhaps a political debt had been incurred), The 

Memoirs of Earl Warren 250–61 (1977). If the prosecutor is 

right, and a swap of political favors involving a job for one 

of the politicians is a felony, then if the standard account is 

true both the President of the United States and the Chief 

Justice of the United States should have gone to prison. Yet 

although historians and political scientists have debated 

whether this deal was made, or whether if made was ethical 

(or politically unwise), no one to our knowledge has suggested that it violated the statutes involved in this case. 

(Whether it might have violated 18 U.S.C. §599, and whether 

that statute is compatible with the First Amendment, are issues we do not address.)

Let us go through the three statutes again. McCormick

holds that a politician’s offer to perform a valuable service 

can violate §1951 as extortion if it involves a quid pro quo: a 

public act in exchange for a valuable return promise. We’ve 
No. 11-3853 11

already explained, however, why logrolling does not violate 

§1951. The exclusion in §666(c) for bona fide employment 

also applies no matter who gets the job. Who would get the

public job does not matter to §1346 either. Indeed, the analysis in United States v. Thompson, 484 F.3d 877 (7th Cir. 2007), 

applies to Blagojevich too. Thompson reversed convictions 

under §666 and §1346 that had been obtained on a theory 

that a public employee’s interest in keeping her job meant 

that she violated federal law if she performed any aspect of 

her job in ways that she knew she shouldn’t. (The asserted 

error in Thompson was an incorrect ranking of bidders for a 

travel-services contract.) Thompson holds, among other 

things, that the interest in receiving a salary from a public 

job is not a form of private benefit for the purpose of federal 

criminal statutes.

Put to one side for a moment the fact that a position in 

the Cabinet carries a salary. Suppose that Blagojevich had 

asked, instead, that Sen. Obama commit himself to supporting a program to build new bridges and highways in Illinois

as soon as he became President. Many politicians believe 

that public-works projects promote their re-election. If the 

prosecutor is right that a public job counts as a private benefit, then the benefit to a politician from improved chances of 

election to a paying job such as Governor—or a better prospect of a lucrative career as a lobbyist after leaving office—

also would be a private benefit, and we would be back to the 

proposition that all logrolling is criminal. Even a politician 

who asks another politician for favors only because he sincerely believes that these favors assist his constituents could 

be condemned as a felon, because grateful constituents make 

their gratitude known by votes or post-office employment.
12 No. 11-3853

What we have said so far requires the reversal of the 

convictions on Counts 5, 6, 21, 22, and 23, though the prosecutor is free to try again without reliance on Blagojevich’s 

quest for a position in the Cabinet. (The evidence that Blagojevich sought money in exchange for appointing Valerie Jarrett to the Senate is sufficient to convict, so there is no double-jeopardy obstacle to retrial. See Burks v. United States, 437 

U.S. 1 (1978).) Because many other convictions remain and 

the district judge imposed concurrent sentences, the prosecutor may think retrial unnecessary—but the judge may 

have considered the sought-after Cabinet appointment in 

determining the length of the sentence, so we remand for resentencing across the board. (The concluding part of this 

opinion discusses some other sentencing issues.)

With the exception of the proposed Cabinet deal, the jury 

instructions are unexceptionable. They track McCormick. 

Much of Blagojevich’s appellate presentation assumes that 

extortion can violate the Hobbs Act only if a quid pro quo is 

demanded explicitly, but the statute does not have a magicwords requirement. Few politicians say, on or off the record, 

“I will exchange official act X for payment Y.” Similarly persons who conspire to rob banks or distribute drugs do not 

propose or sign contracts in the statutory language. “Nudge, 

nudge, wink, wink, you know what I mean” can amount to 

extortion under the Hobbs Act, just as it can furnish the gist 

of a Monty Python sketch.

Blagojevich contends that he was entitled to an instruction that, if he believed in good faith that his conduct was 

lawful, then he must be acquitted. That is not so; an openended “good faith” defense would be either a mistake-oflaw defense in disguise or an advice-of-counsel defense 
No. 11-3853 13

without demonstrating advice of counsel. This circuit’s pattern jury instructions call for a good-faith instruction only 

when the statute contains a term such as “willful” that (as 

understood for that particular statute) makes knowledge of 

the law essential. Pattern Criminal Jury Instructions of the Seventh Circuit §6.10 (2012 revision).

Suppose Blagojevich believed that winks and nudges 

avoid the McCormick standard. That would be legally wrong, 

and the fact that he believed it would not support acquittal 

unless mistake of law is a defense. Blagojevich does not argue that knowledge of the law is essential to conviction under §666 or §1951, so there’s no basis for a good-faith instruction. See United States v. Caputo, 517 F.3d 935, 942 (7th Cir. 

2008); United States v. Wheeler, 540 F.3d 683, 689–90 (7th Cir. 

2008). It is enough for the instruction to cover the mental elements required by each statute. That a given defendant 

wants to apply the phrase “good faith” to the lack of essential knowledge or intent does not imply the need for a separate instruction; a jury’s task is hard enough as it is without 

using multiple phrases to cover the same subject. These instructions defined the statutes’ mens rea elements correctly; 

no more was required.

The argument for a good-faith instruction relies principally on Cheek v. United States, 498 U.S. 192 (1991), but that’s

a different kettle of fish. The Justices read the word “willfully” in a particular tax law to require proof that the accused

knew the law, which the Justices saw as technical and beyond the ken of many taxpayers. The word “willfully” does 

not appear in any of the statutes that Blagojevich was 

charged with violating. Anyway, he does not deny knowing 

the rule of McCormick, under which the exchange of an offi-
14 No. 11-3853

cial act for a private benefit is illegal, so Cheek would not 

help him even if it applied. The “good faith” argument is 

just a stalking horse for the contention that the quid pro quo

must be stated explicitly and cannot be implied from hints 

and nudges; as we have rejected that contention directly, it 

cannot be resuscitated in the form of a “good faith” instruction untethered from statutory language.

The district judge did give a good-faith instruction limited to the wire-fraud counts, which have an intent requirement within the scope of §6.10. The judge used the language 

of §6.10, as modified to fit the specific charges, and added 

one sentence at the end. Here’s how the instruction wrapped 

up:

The burden is not on the defendant to prove his good faith; rather, the government must prove beyond a reasonable doubt 

that the defendant acted with the requisite intent. The government is not required to prove that the defendant knew his acts 

were unlawful.

Blagojevich contends that this instruction’s final sentence is 

improper. To the contrary, the sentence just reminds the jury 

that mistake of law is not a defense. The wire-fraud statute 

requires a specific intent to defraud but not wilfulness or any 

other proxy for knowledge of the law. To the extent that 

Blagojevich may think that a need to show intent to defraud 

is the same as a need to show knowledge about what the law 

requires, he misreads United States v. LeDonne, 21 F.3d 1418, 

1430 (7th Cir. 1994). See Barlow v. United States, 32 U.S. (7 

Pet.) 404, 410–11 (1833) (distinguishing these two subjects). 

The district judge was concerned that Blagojevich had been 

trying to argue mistake-of-law indirectly even though none 

of the statutes requires legal knowledge; under the circumstances, it was not an abuse of discretion to add a caution to 
No. 11-3853 15

the instructions. Cf. United States v. Curtis, 781 F.3d 904, 907 

(7th Cir. 2015) (an instruction is proper unless “as a whole 

[it] misled the jury as to the applicable law”).

We now take up challenges to the admission and exclusion of evidence. Each trial lasted about a month, so there 

were plenty of evidentiary rulings. On the whole, the district 

judge allowed the defense considerable latitude, but Blagojevich can’t complain about the rulings in his favor. He does 

complain about several that went the prosecution’s way, and 

we discuss three of them.

The first concerns a ruling that excluded wiretap transcripts showing that at the same time Blagojevich was asking 

the President-elect for something in exchange for appointing 

Valerie Jarrett to the Senate, he was asking Michael Madigan 

(Speaker of the state’s House of Representatives) to support 

his political program in exchange for appointing Lisa Madigan, Michael’s daughter, to the Senate. Blagojevich’s lawyers 

contended that his objective all along was to appoint Lisa 

Madigan, then (and now) the Attorney General of Illinois. 

The district judge did not allow this wiretap evidence, ruling 

that it would divert attention from the indictment’s charges. 

A bank robber cannot show that on many other occasions he 

entered a bank without pulling a gun on a teller, nor can a 

teller charged with embezzlement show how often he made 

correct entries in the books.

As we’ve mentioned, the district court gave the defense a 

long leash, and the judge was entitled to conclude that evidence about negotiations with Speaker Madigan would sidetrack this trial. See Fed. R. Evid. 403. The Madigan conversations could have shown that Blagojevich was negotiating 

with many people for the best deal; they would not have 
16 No. 11-3853

shown that any of his requests to the President-elect or Rep.

Jackson was lawful. The judge did permit Blagojevich to testify that he had planned to appoint Lisa Madigan all along 

and that he was deceiving rather than extorting the President-elect. (In the end, however, he appointed Roland Burris, not Lisa Madigan.) Some transcripts admitted for other 

purposes also contained Lisa Madigan’s name.

Come the closing argument, the prosecutor used the 

judge’s ruling to advantage, stating:

And the Lisa Madigan deal, you’ll have the calls, November 1st 

through November 13th. Go back and look at the calls and see 

how many times Lisa Madigan is actually mentioned ... . That’s 

one, and two, how often is she mentioned in a way that she is 

not a stalking horse, and you’re not going to find it. She was a 

stalking horse.

Blagojevich contends that this argument violated the Due 

Process Clause by so misleading the jury that it could no 

longer think rationally about his guilt. See Darden v. Wainwright, 477 U.S. 168, 181 (1986).

Having persuaded the judge to keep most Madigan transcripts out of evidence, the prosecutor should not have argued that the record contains very few references to her. The 

paucity of references was a result of the prosecutor’s strategy, not the defense’s strategy or a shortage of references in 

the recordings. But Darden sets a very high bar for a dueprocess challenge to a prosecutor’s closing argument. In the 

main, the right response is argument from the defense or 

correction from the judge, not reversal on appeal. Especially 

not when the trial lasted five weeks and the prosecutorial 

comment lasted a few seconds. It is extraordinarily unlikely 

that this comment, about what is (as we have mentioned) a 
No. 11-3853 17

collateral if not an irrelevant matter, could have affected the 

jury’s evaluation of the contention that Blagojevich violated 

the Hobbs Act and §666 by asking the President-elect or Rep. 

Jackson for cash (or a lucrative private-sector job) in exchange for Blagojevich’s appointment of the new Senator.

The second evidentiary subject concerns a recording of a 

conversation between John Harris, Blagojevich’s chief of 

staff, and William Quinlan, his general counsel. Harris testified; Quinlan did not. During the direct examination of Harris, the prosecutor introduced a recording of a call between 

Harris and Quinlan, during which Harris asked why Blagojevich had not yet signed the bill extending the racetrack 

subsidy, and Quinlan replied: “Ah, let’s just say, it is what 

you think.” The district judge admitted the statement “not 

for [its] truth but for the effect [it] had on ... Harris and the 

decisions that he ma[de] as a result of th[e] conversation.” 

The Federal Rules of Evidence prohibit hearsay, which is an 

out of court statement used to prove the truth of the matter 

stated, see Fed. R. Evid. 801(c)(2), but with the judge’s limitation Quinlan’s statement was not hearsay. The prosecutor 

then asked Harris what he understood (he answered that 

Blagojevich “was holding the bill because he wanted to talk 

to [people] about getting campaign contributions from the 

racetrack owners before he signed”) and what actions he 

took as a result. No problems so far.

Once again, though, a problem cropped up in the closing 

argument. The prosecutor said this:

John Harris talks to the defendant, and you got that call at Tab 

54, and he asks him what to do about the racing bill because 

what he knows is he has approved it, there’s a green light. The 

defendant tells him in that call “I’m sitting on the bill.” He already had a hold on that bill as of noon of November the 26th.
18 No. 11-3853

What John Harris told you is that the excuse that he got from the 

defendant on that call made no sense to him, it was a red flag. 

He said something to him like “I want to see how it all fits together.” What Harris told you there is there was nothing to see 

on this bill about how it fit in with anything else that was pending at that time. And so what John Harris says, “I bet he’s holding this up for a campaign contribution.”

John Harris goes to Bill Quinlan, he tells him what his concern is, 

and he asks him to talk to the defendant and find out if that’s 

what he’s doing. And you got the call at Tab 56 where Bill Quinlan 

confirms that’s exactly what the defendant is doing. And what John 

Harris testified is once he knew that, he stepped out, and he left 

it to the defendant and Lon Monk [a lobbyist; formerly Blagojevich’s chief of staff] to figure out. He knew he wasn’t going to 

be able to do anything once he had a hold on that bill waiting for 

a campaign contribution.

The language we have italicized is the problem. It takes 

Quinlan’s statement as the proposition that Blagojevich was 

waiting for money. That’s a hearsay use. The only proper 

use of the statement was for the effect it had on Harris.

Perhaps one could rescue the argument by saying that 

the italicized sentence is just shorthand for the permitted use 

of Quinlan’s recorded words: Harris understood them as confirming his belief that Blagojevich was holding the bill in order to extract money from racetrack owners. Jurors might 

have been hard pressed to tell the difference between “Quinlan confirmed X” and “Harris understood Quinlan to confirm X.” This may reflect adversely on the hearsay doctrine; 

jurors do not draw subtle distinctions just because they have 

been part of the common law since the eighteenth century. 

At all events, “subtle” is the important word. Given the duration of this trial and the power of the evidence, the fact 

that a prosecutor says “Quinlan confirmed X” when he 

should have said “Harris understood Quinlan to have con-
No. 11-3853 19

firmed X” cannot have affected the outcome. The judge himself seems to have missed the distinction, despite his earlier 

ruling. The likelihood of prejudice from this misstatement is 

minute, and without prejudice there’s no basis for a reversal. 

See United States v. Richards, 719 F.3d 746, 764 (7th Cir. 2013).

Now for the third evidentiary issue, and the last we discuss. During trial, the judge admitted evidence that, before 

his arrest, Blagojevich had retained the services of lawyers 

with experience in criminal defense. Blagojevich’s appellate 

brief contends that the only function of this evidence was to 

imply consciousness of guilt. The prosecutor replies, however, that this evidence served a different function: to address 

what seemed to be a developing advice-of-counsel defense. 

To this Blagojevich rejoins that he never raised such a defense, so the evidence was both irrelevant and prejudicial.

“Advice of counsel is not a free-standing defense, though 

a lawyer’s fully informed opinion that certain conduct is 

lawful (followed by conduct strictly in compliance with that 

opinion) can negate the mental state required for some 

crimes, including fraud.” United States v. Roti, 484 F.3d 934, 

935 (7th Cir. 2007). Blagojevich did not mount an advice-ofcounsel defense. He did not fully reveal his actions to any 

lawyer, did not receive an opinion that the acts were lawful, 

and did not comport himself strictly in compliance with any 

such opinion. But he hinted in that direction. Here is some of 

his testimony:

• “I immediately had Mary [Stewart] find Bill Quinlan for me so that I could talk to Bill Quinlan my 

lawyer, the governor’s lawyer, about what do I do 

about this, how do I handle this, because I wanted 

to be very careful that I don’t get caught up in some-
20 No. 11-3853

thing that I’m not aware of that isn’t—that is potentially wrong and could very well be wrong.” Tr. 

3809.

• “And then I was reconstructing for Bill Quinlan, my 

lawyer, basically, you know, spilling whatever I 

knew, whatever was coming into my mind to him 

about that call, about that conversation about the 

fundraising requests from Patrick Magoon [the 

President of Children’s Memorial Hospital] in connection with Dusty Baker [a former manager of the 

Chicago Cubs who was lobbying on Magoon’s behalf] calling me. And so I was relating this to Bill 

Quinlan ... because I was basically trying to find out 

from Quinlan do you think I said something wrong? 

Could I have done—could I have stumbled into 

crossing a line of some sort?” Tr. 4078.

• “Q: Why were you telling Bill Quinlan that? A: Because Bill Quinlan’s my general counsel, he’s my 

lawyer and he was in many ways, you know, a—he 

was in many ways—you know, he—I talked to him 

about everything that was remotely connected to 

anything that was on legal issues or pending investigation and all the rest because I wanted to be careful not to do anything wrong.” Tr. 4079.

• “Bill Quinlan ... was my general counsel, and there 

was nothing I would do of any magnitude that I felt 

I needed to discuss with my general counsel, my 

lawyer Bill Quinlan.” Tr. 4092.

• “Q: Did you also have several conversations with 

Bill Quinlan about the Senate seat? A: Yes. I talked 
No. 11-3853 21

to Bill Quinlan about it constantly, continuously, 

almost every day. Almost every day. Q: Did you 

have conversations with Bill Quinlan about [establishing] a 501(c)(4) [social-welfare organization] in 

relation to the Senate seat? A: I had several conversations with Bill Quinlan about a 501(c)(4) in relation to the Senate seat.” Tr. 4112.

The prosecutor objected to all of this testimony, observing 

that Blagojevich had not tried to meet the requirements of an 

advice-of-counsel defense, but the judge allowed the testimony (this is one of the many examples of resolving debatable questions in the defense’s favor). Having asserted that he 

consulted with counsel, Blagojevich opened the door to evidence that he had other lawyers too yet was keeping mum 

about what they told him. That’s an appropriate topic for 

evidence and for comment during closing argument.

Sentencing is the only other subject that requires discussion. The district judge concluded that the Sentencing 

Guidelines recommend a range of 360 months to life imprisonment for Blagojevich’s offenses, and the actual sentence is

168 months. Instead of expressing relief, Blagojevich maintains that the sentence is too high because the range was too 

high. The judge erred in two respects, Blagojevich contends: 

first, the judge included as loss the $1.5 million that, he 

found, Blagojevich had asked Rep. Jackson’s supporters to 

supply. See U.S.S.G. §2C1.1(b)(2). He calls this finding 

“speculative.” The judge also added four levels under 

U.S.S.G. §3B1.1(a) after finding that Blagojevich was the 

leader or organizer of criminal activity that included five or 

more participants or was “otherwise extensive”. Blagojevich 
22 No. 11-3853

contends that the many persons he consulted or used as intermediaries should not count.

The district judge did not err in either respect. The $1.5 

million figure did not come out of a hat; it was a number 

discussed in the recordings. That nothing came of these 

overtures does not affect the calculation of loss under 

§2C1.1(b)(2), because it is an amount Blagojevich intended to 

receive from criminal conduct even though not a sum anyone else turned out to be willing (or able) to pay. As for the 

leadership enhancement for an “otherwise extensive” organization: This applies whether or not the defendant’s subordinates and associates are criminally culpable. U.S.S.G. 

§3B1.1 Application Note 3. The numbers involved here substantially exceed five and qualify as “otherwise extensive.”

Any error in the Guidelines calculation went in Blagojevich’s favor. After calculating the 360-to-life range, the 

judge concluded that it is too high and began making reductions, producing a range of 151 to 188 months. For example, 

the judge gave Blagojevich a two-level reduction for accepting responsibility, see U.S.S.G. §3E1.1, and took off two more 

for good measure, even though he pleaded not guilty, denied culpability at two lengthy trials, and even now contends that the evidence is insufficient on every count and that 

he should have been acquitted across the board. That’s the 

antithesis of accepting responsibility. The judge reduced the 

range further by deciding not to count all of the $1.5 million 

as loss, even though he had decided earlier that it is the right

figure. The prosecutor has not filed a cross-appeal in quest of 

a higher sentence but is entitled to defend the actual sentence of 168 months (and to ask for its re-imposition on remand) without needing to file an appeal. Removing the con-
No. 11-3853 23

victions on the Cabinet counts does not affect the range calculated under the Guidelines. It is not possible to call 168 

months unlawfully high for Blagojevich’s crimes, but the 

district judge should consider on remand whether it is the 

most appropriate sentence.

The convictions on Counts 5, 6, 21, 22, and 23 are vacated; the remaining convictions are affirmed. The sentence is 

vacated, and the case is remanded for retrial on the vacated 

counts. Circuit Rule 36 will not apply. If the prosecutor elects 

to drop these charges, then the district court should proceed 

directly to resentencing. Because we have affirmed the convictions on most counts and concluded that the advisory 

sentencing range lies above 168 months, Blagojevich is not 

entitled to be released pending these further proceedings.