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Rod Blagojevich: Charges and Jury Instructions

As the Judge and attorneys put the final touches on jury instructions this weekend, I thought a summary of the charges against former Illinois Governor Rod Blagojevich and his brother Robert might be helpful for reference during closing arguments and jury deliberations. All of what follows comes from the Government's 123 page proposed jury instructions to the Court, filed July 21 (Rod Blagojevich didn't file written instructions this week, and Robert's lawyer only filed five pages of instructions, which I'll discuss later or in another post. First, the charges:

Rod Blagojevich:

  • Racketeering (Count 1),
  • Conspiracy to commit racketeering (Count 2),
  • Wire fraud (Counts 3, 4, 5, 6, 7, 8,
    9, 10, 11, 12, and 13),
  • Attempted Extortion (Counts 14, 15, 19, and 22),
  • Conspiracy to commit extortion (Counts 17 and 21),
  • Bribery (Counts 16 and 20),
  • Conspiracy to commit bribery (Counts 18 and 23),
  • Making false statements to the government (Count 24).

As to Robert Blagojevich: [More...]

Robert Blagojevich Charges:

  • Wire fraud (Counts 4 and 13) (13 dismissed before case went to jury),
  • Conspiracy to commit extortion (Count 21),
  • Attempted extortion (Count 22),
  • Conspiracy to commit bribery (Count 23).

The RICO charges are the most complex. First, the Government must establish an "enterprise."

The Government is asking the jury to find there was a "Blagojevich Enterprise", made up of Rod Blagojevich, Christopher Kelly, Antoin Rezko, Alonzo Monk, the Office of the Governor of Illinois, and Friends of Blagojevich.

What's an enterprise? According to the Government:

The term “enterprise” can include a group of people and/or legal entities associated together for a common purpose of engaging in a course of conduct. This group may be associated together for purposes that are both legal and illegal.

In considering whether a group is an "enterprise,” you should consider whether it has an ongoing organization or structure, either formal or informal, and whether the various members of the group functioned as a continuing unit.

A group may continue to be an “enterprise” even if it changes membership by gaining or losing members over time.

The government must prove that the group described in the indictment was the “enterprise” charged.... The government must prove the association had some form or structure beyond the minimum necessary to conduct the charged pattern of racketeering.

Assuming the jury finds agrees there was a "Blagojevich Enterprise", in order to find Blago guilty of racketeering, the Government says the jury must also find:

  • Blago was associated with the Blagojevich Enterprise;
  • Blago knowingly conducted or participated in the conduct of the affairs of the Blagojevich Enterprise through a pattern of racketeering activity, and
  • that the activities of the Blagojevich Enterprise affected interstate commerce.

Another concept that's bound to be confusing for the jury: What's a "pattern of racketeering activity?" According to the Government, it must prove:

Rod Blagojevich committed or caused another person to commit at least two racketeering acts described in Count 1, and that those acts were in some way related to each other.(continuity between them)

...Although a pattern of racketeering activity must consist of two or more acts, deciding that two such acts were committed, by itself, may not be enough for you to find that a pattern exists.

Acts are related to each other if they are not isolated events, that is, if they have similar purposes, or results, or participants, or victims, or are committed a similar way, or have other similar distinguishing characteristics.

There is continuity between acts if, for example, they are ongoing over a substantial period, or if they are part of the regular way some entity does business or conducts its affairs.

The government need not prove that all the acts described in Count 1 were committed, but you must unanimously agree as to which two or more racketeering acts defendant Rod Blagojevich committed or caused to be committed in order to find defendant Rod Blagojevich guilty of Count 1.

What are the racketeering acts he's charged with?

  • Count 1 consists of multiple acts involving bribery, wire fraud, and extortion.
  • Defendant Rod Blagojevich is also charged in separate counts with violations of the federal wire fraud statutes (Counts 3 through 13),
  • and with violations of the federal extortion statute (Counts 14, 15, 17, 19, 21 and 22).
  • Defendant Robert Blagojevich is also charged in separate counts with violations of the federal wire fraud statutes (Counts 4 and 13), and with violations of the federal extortion statute (Counts 21 and 22).

As if that's not confusing enough, Blago is also charged with conspiracy to commit racketeering (Count 2). How does that differ? According to the Government, it must prove:

  • First, that defendant Rod Blagojevich knowingly conspired to conduct or participate in the affairs of the Blagojevich Enterprise through a pattern of racketeering activity as described in Count 2;
  • Second, that Rod Blagojevich, Christopher Kelly, Antoin Rezko, Alonzo Monk, the Office of the Governor of Illinois, and Friends of Blagojevich (referred to in the indictment collectively as the “Blagojevich Enterprise”) were an enterprise;
  • Third, that the activities of the Blagojevich Enterprise would affect interstate commerce.

As to the interstate commerce element, the Government defines it as:

Interstate commerce includes the movement of money, goods, services or persons from one state to another. This would include the purchase or sale of goods or supplies from outside Illinois, the use of interstate mail or wire facilities, or the causing of any of those things.

The Government says it must show either:

(a) that the Blagojevich Enterprise made, purchased, sold or moved goods or services that had their origin or destination outside Illinois, or (b) that the actions of the Blagojevich Enterprise affected in any degree the movement of money, goods or services across state lines

The other crimes are simpler to understand. The defense is unlikely to agree with these definitions, but according to Blago's attorney yesterday, the Judge accepted all but one of the Government's instructions so far:

Wire Fraud (charged in Counts 3 through 13,and in Count 1, Racketeering acts 3[c];, 4[c];, 6(d), 6(e), 6(f), 6(g), 6(h), 6(i), 6(j), 6(k), and 6(l))

  • First, that the defendant knowingly devised or participated in a scheme to defraud the public of its right to the honest services of Rod Blagojevich, John Harris, or Alonzo Monk by demanding, soliciting, seeking, or asking for a bribe, or by agreeing to accept a bribe, in the manner described in the particular Count or Racketeering Act you are considering;
  • Second, that the defendant did so knowingly and with the intent to defraud; and
  • Third, that for the purpose of carrying out the scheme or attempting to do so, the defendant used or caused the use of interstate wire communications to take place in the manner charged in the particular Count or Racketeering Act you are considering.

What's a "scheme to defraud"? In this case, the "scheme to defraud" is a scheme Blago devised or participated in to " defraud the public of its right to the honest services of Rod Blagojevich, John Harris, or Alonzo Monk."

A scheme to defraud citizens of their right to a public official’s honest services is a plan or course of action in which the public official schemes to violate his fiduciary duty to the public by demanding, soliciting, seeking, or asking for a bribe, or by agreeing to accept a bribe.

What's Blago's fiduciary duty to the public? The Government says all public officials owe a fiduciary duty to the public, and in this case:

As officials and employees of the State of Illinois, Rod Blagojevich, John Harris, and Alonzo Monk were public officials who owed a duty of honest services to the people of the State of Illinois....

To owe a fiduciary duty to the public means that the official has a duty of honesty and loyalty to act in the public’s interest, not for his own enrichment.

When a public official devises or participates in a bribe scheme, he violates the public’s right to his honest services. The public is defrauded or deceived because the public is not receiving what it expects, namely, the public official’s honest services.

In order to prove this charge, the Government says:

In considering whether the government has proven a scheme to defraud, it is essential that one or more of the acts charged in the portions of the indictment describing the scheme be proved, establishing the existence of the scheme beyond a reasonable doubt. However, the government is not required to prove all of them.

Also:

...In order for the government to demonstrate a scheme to defraud the public of its right to the honest services of a public official, only one participant in such scheme must owe a duty of honest services to the public.

Accordingly, a defendant who schemes with a public official or employee to deprive the public of its right to that public official’s or employee’s honest services may be guilty of a scheme to defraud the public of its right to honest services, provided all the elements of the offense as set forth in these instructions are met.

The big issue here will be Blago's intent. Did he have the intent to defraud? According to the Government:

The phrase “intent to defraud” means that the acts charged were done knowingly with the intent to deceive or cheat the public in order to deprive the public of the defendant’s honest services through bribery.

What about financial gain or loss? The Government says:

In order to prove a scheme to defraud, the government does not have to prove that the defendant contemplated actual or foreseeable financial loss to the victims of the scheme. The wire fraud statute can be violated whether or not there is any actual financial loss or damage to the victim of the crime or actual financial gain to the defendant.

The Government also acknowledges the scheme to defraud must include "a material misrepresentation, false statement, false pretense, or concealment of fact.

A misrepresentation, false statement, false pretense, or concealment is “material” if it has a natural tendency to influence, or is capable of influencing, a decision or action of the public. It is not necessary that the misrepresentation, false statement, false pretense, or concealment actually have that influence or be relied on by the public, so long as it had the potential or capability to do so.

On to Bribery: (charged in Count 1, Racketeering Act 1(b)): The Government says it must prove:

  • First, that the defendant agreed to accept any property or personal advantage; and
  • Second, that the defendant did so knowing that the property or personal advantage was tendered or promised with intent to cause him to influence the performance of any act related to his employment or function as a public officer.
The bribery definitions are going to be very important. The Government says:

Bribery committed by a public official is the demanding, soliciting,seeking, or asking for, directly or indirectly, or agreeing to accept, anything of value from another person in exchange for a promise for, or performance of, an official act.

The term “anything of value” includes money, property, and employment....The term “anything of value” includes campaign contributions and potential salaries.

....An official act is any decision or action on any question which may at any time be pending, or which may by law be brought before the public official in his official capacity or in his position of trust.

It is not necessary that the public official had the power to or did perform the act for which he was promised, or which he agreed to receive, something of value; it is sufficient if the matter was one that was before him in his official capacity.

Nor is it necessary that the public official in fact intended to perform the official act. It is sufficient if the public official knew that the thing of value was offered with the intent to exchange the thing of value for the performance of the official act.

As to campaign contributions, the Government says:

An elected official’s demanding, soliciting, seeking, or asking for, directly or indirectly, or agreeing to accept a campaign contribution, by itself, does not constitute bribery, even if the person making the contribution has business pending before the official.

However, if a public official demands, solicits, seeks, or asks for, directly or indirectly, or agrees to accept money or property, believing that it would be given in exchange for a specific requested exercise of his official power, he has committed bribery, even if the money or property is to be given to the official in the form of a campaign contribution.

The Government also wants the jury to instructed there doesn't need to be a due date:

Bribery can be committed when the public official solicits or accepts a benefit or benefits with the understanding that, in exchange for a specific requested exercise of his official power, the public official will exercise the
influence of his position or decision-making to the benefit of the bribe payor as specific opportunities arise.

Also, according to the Government:

A defendant may act corruptly even if he is only partially motivated by the expectation or desire for reward.

...It is not necessary that the defendant’s solicitation or demand for thing of value in exchange for influence or reward with respect to state business be stated in express terms.

I'm out of time, and I still have extortion, false statements and aiding and abetting to cover. The aiding and abetting is going to very important for Robert Blagojevich. The penalties for aiding and abetting are the same as the penalties for the crime one aided and abetted. To be continued....

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    One of the reasons I took the time to post this (5.00 / 3) (#8)
    by Jeralyn on Sat Jul 24, 2010 at 07:16:49 PM EST
    was so people could see how complicated the statutes are. I hope the jury doesn't give up trying to figure them out and put them to the side, deciding to go by their gut feeling of "Did he do it" or "He didn't testify and explain why he wasn't guilty."

    Most lawyers don't understand RICO. At least in a mob case, jurors think they have "the mafia" to fall back on. They probably reason, Is there a mafia? Yes. (The Government said there was.) Was this guy a member of it? Yes. Did he illegally take bets? Yes. Did he threaten people if they didn't pay? Yes. Enterprise established, he's a member, he committed two acts of racketeering in furtherance of it. Guilty.

    This case is a lot more nuanced, particularly as to the enterprise. I hope if they don't understand it, they acquit on those charges. It's what they should do. If they don't understand the charge and each element, they can't apply the law as instructed and the Government can't meet it's burden of proof of every element of the crime beyond a reasonable doubt.

    That's a very succinct way of addressing it (none / 0) (#9)
    by scribe on Sat Jul 24, 2010 at 08:29:43 PM EST
    and quite the understatement as to the complexity (and reach) of the RICO statute.

    As I see it, the first two big problems for the government's case are
    (1)(a) the enterprise and
    (b) the continuity elements and
    (2) the conspiracy to commit racketeering.

    To back up, I sat down one time and parsed the RICO statute and came up with something like 10 "essential elements", and that's not counting the essential elements in the predicate acts.  (For the non-lawyers, an essential element is a predicate act is a separate crime.  A pattern of racketeering activity is a continuing pattern of

    As to the first, the enterprise, it's a mess.  Basically, they have to prove that the way Blago and his closest political advisors ran things was thoroughly infected with criminality.  I remember a RICO case I read (15 or 20 years ago) where the prosecution alleged the Tennessee Governor's office was the racketeering enterprise, as they were alleged to be selling pardons.  As I recall it, the prosecution succeeded, but I have some doubt how applicable that precedent would be to this case.  First, that case predated a whole series of decisions fleshing out the various elements, not the least of them the continuity and enterprise elements, and limiting the scope of the statute in some important ways.  So that case might not be a makeable one today.  Second, the conduct in that Tennessee governor's office case was a fairly discrete set of conducts - it was all about selling pardons.  This is not nearly so clear-cut:  it's about raising campaign funds and how discretionary decisions would be made.  I have no doubt that if Fitz could have proven a quid pro quo - as I recall was the core of the Tennessee case - he would have.  That's Fitz's way.  But I don't recall there having been enough to prove a quid pro quo.  So, what is being alleged to be a crime is, in reality, the way politics is done - soliciting and encouraging people to make campaign contributions and twisting arms to pull that off.  The main distinctions between Blago and the run-of-the-mill pol are that Blago was up-front about it and the other pols are more subtle.  But everyone knows campaign contributions are about buying access and favorable decisions.  

    The problem with the continuity element can be synopsized by recalling the Senate seat was a one-time thing.  To make a RICO case, Fitz had to come up with other stuff, because a one-time thing will, by definition, fail to meet the continuity element.  But each of the alleged crimes, it seems, is a one-off.  

    Hard to say.  I don't see it as a case where a conviction is a slam-dunk.

    Parent

    Oh, yeah - conspiracy to commit racketeering (none / 0) (#10)
    by scribe on Sat Jul 24, 2010 at 08:31:52 PM EST
    That seems a makeweight - one where the government can't prove the underlying RICO case and falls back on "you conspired to do it, even if you failed at it".  Kind of a back-door way to make an unmakeable case.

    Parent
    Thanks, Scribe. (none / 0) (#13)
    by prittfumes on Sat Jul 24, 2010 at 10:55:56 PM EST
    Mind clearing this up?

    "(For the non-lawyers, an essential element is a predicate act is a separate crime.  A pattern of racketeering activity is a continuing pattern of ??"

    Thanks again.

    Parent

    How's this (none / 0) (#15)
    by Jeralyn on Sat Jul 24, 2010 at 11:44:56 PM EST
    From the Government manual:

    Under the RICO statute, "racketeering
    activity" includes state offenses involving murder, robbery, extortion, and several other serious offenses, punishable by imprisonment for more than one year, and more than one hundred serious federal offenses including extortion, interstate theft, narcotics violations, mail fraud, securities fraud, currency reporting violations, certain immigration offenses, and terrorism related offenses.

    A "pattern" may be comprised of any combination of two or more of these state or federal crimes
    committed within a statutorily prescribed time period. Moreover, the predicate acts must be related and amount to, or pose a threat of, continued criminal activity.

    An "enterprise" includes any individual,
    partnership, corporation, association, or other legal entity, and any group of individuals associated in fact although not a legal entity. For example, an arson ring can be a RICO enterprise, as can a small business or government agency.



    Parent
    Perfect. (none / 0) (#16)
    by prittfumes on Sun Jul 25, 2010 at 01:15:26 AM EST
    Thanks!

    Parent
    Thanks (none / 0) (#17)
    by scribe on Sun Jul 25, 2010 at 08:37:13 AM EST
    I must have hit "insert" rather than "delete" and typed over a sentence or two.

    Parent
    If you'd like to know more (none / 0) (#14)
    by Jeralyn on Sat Jul 24, 2010 at 11:39:40 PM EST
    about how the law has developed over the past several years, check out the 2009 DOJ manual: CRIMINAL RICO:18 U.S.C. §§ 1961-1968
    A Manual for Federal Prosecutors, FIFTH REVISED EDITION OCTOBER 2009. It's 551 pages, online and free, sorry I don't to have the link handy.

    I've defended a few RICO cases, all drug-related. The only one that went to trial was in the mid 90's and I won on the motion for judgment of acquittal (after the Government rested, before the case  went to the jury), but it was a  technical argument about the evidence showing a different conspiracy than the one charged, and the statute of limitations having run  because my client had been terminated from the conspiracy more than five years prior to the return of the Indictment. (It wouldn't have worked if he was charged with the substantive RICO offense because they can go back 10 years on that. "At Least One Racketeering Act Must Have Been Committed
    After October 15, 1970 and the Last Racketeering Act Must Have Been Committed Within Ten Years of a Prior Act." )

    Before the U.S. Attorney can charge RICO, they have to get approval, submit a package of information, and go through hoops in D.C. It's all in the manual.  So for Blago, it wasn't Fitz on his own, he had approval for it.

    I spent a lot of time reviewing the manual and recent case law about six months ago, I'm hoping I won't have to use it.

    Parent

    "spend[ing] a lot of time reviewing the (none / 0) (#18)
    by scribe on Sun Jul 25, 2010 at 08:46:32 AM EST
    manual and recent caselaw" is pretty much the drag. They're exceedingly complex and each case, it would seem, is almost sui generis.  ("This all is true unless the reviewer is getting paid by the hour in which case it's not a drag, because there certainly are a heck of a lot of hours involved in it", says scribe's mercenary side.)

    The thing about Fitz having to send this to DC for approval is quite true, but I think it would be helpful to remember the timing issues here, too.  DC approval on this would have been in October/November 2008, during the time Mukasey and the Republcans were in charge in Washington.  Given the history of the Bush/Cheney administration when it comes to politicizing prosecutions of Democrats and passing on Republicans, I cannot see that decision (which, IIRC, has to be made by the AG personally) going against prosecution.  They might not have said "let's get Obama", but they surely had the thought "wouldn't it be nice, come the 2010 midterms, to have this albatross to hang around Obama's neck.  And if it turns out he's in on this, so much the better."

    This is not to say Fitz is a political actor/player but as we saw in the Libby case he's a cop, almost a robo-cop, when it comes to prosecutions and his superiors are and always have been political players.  

    Parent

    What you are not considering (none / 0) (#19)
    by jbindc on Sun Jul 25, 2010 at 10:07:04 AM EST
    Is I guess what you would consider the opposite of jury nullification - that is, the jury, so sick of politicians in general (and possibly Blago specifically) may look at the evidence and think, "Well, maybe there's a reasonable doubt, but he's shady enough to send him to prison.  This may also send a message to other politicians that you can't get away with this stuff." (Obviously, that lesson hasn't been learned in Illinois).

    Not saying this would happen - but the political climate is such this year that people really hate politicians and may look for any excuse to let one hang.

    Parent

    That's similar to (5.00 / 2) (#22)
    by Jeralyn on Sun Jul 25, 2010 at 12:28:47 PM EST
    "I hope the jury doesn't give up trying to figure them out and put them to the side, deciding to go by their gut feeling of "Did he do it" or "He didn't testify and explain why he wasn't guilty."

    "Their gut feeling" would include "He's sitting in the defendant's chair, he must be guilty" or their impression based on negative publicity. I wouldn't call it reverse jury nullification because jury nullification is a based on a juror's belief the charged conduct should not be a crime, but the effect is the same: the jurors decide the case based not on the law applicable to the charges and evidence but what they personally believe "deep down." (their gut.)

    Parent

    It's got to be a thought (none / 0) (#23)
    by jbindc on Mon Jul 26, 2010 at 08:16:07 AM EST
    In his attorneys' minds.  I'm not advocating for it - just saying in this climate where people are really angry at politicians, and they all are pretty much showing themselves to be corrupt liars and sleazy beyond belief, that, regardless of what the evidence shows or doesn't show, it's going to be in the jurors' minds.

    Parent
    Huh? (none / 0) (#20)
    by squeaky on Sun Jul 25, 2010 at 10:52:15 AM EST
    Lynch mob, the opposite of jury nullification? Wow, that's a twisted way to rationalize sending someone to jail because you don't like his or face.

    Parent
    "Lynch mob"? (none / 0) (#21)
    by jbindc on Sun Jul 25, 2010 at 11:58:18 AM EST
    Wow - the hyperbole machine is in complete overdrive today.

    Parent
    "honest services" (none / 0) (#1)
    by diogenes on Sat Jul 24, 2010 at 01:02:45 PM EST
    Didn't the Supreme Court throw out all this "honest services" stuff except when there was actual bribery?  Why is it even in these closing arguments except to give Blago grounds for an appeal if he is convicted.

    Wow (none / 0) (#2)
    by squeaky on Sat Jul 24, 2010 at 02:23:52 PM EST
    There are too many laws. I am surprised that we are not all in jail.

    No wonder we are #1 Prison Nation.

    Is plea bargaining a type of extortion? (none / 0) (#3)
    by Saul on Sat Jul 24, 2010 at 03:49:00 PM EST
    A lawyer telling his client I know you are not guilty but the evidence is not on your side and a trial would be not in your favor.  So why not admit to a lesser crime (even if you did not do it) so you can get a light sentence or even parole.

    How many times has that happened.  Plenty

    When (none / 0) (#4)
    by NYShooter on Sat Jul 24, 2010 at 04:12:27 PM EST
    each, and every defendant is GIVEN the money & resources available to the State, and when the Neanderthals who write and administer The Law are subject to The Law, then maybe.

    Parent
    Rigged Game (none / 0) (#5)
    by squeaky on Sat Jul 24, 2010 at 04:13:22 PM EST
    Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a middle-aged man that he will die in a cell unless he gives evidence against his boss. This is unfair, complains Harvey Silverglate, the author of "Three Felonies a Day: How the Feds Target the Innocent".

    If a defence lawyer offers a witness money to testify that his client is innocent, that is bribery. But a prosecutor can legally offer something of far greater value--his freedom--to a witness who says the opposite. The potential for wrongful convictions is obvious.

    The Economist

    Parent

    Orchids? THIS is where we are putting (5.00 / 1) (#6)
    by Cream City on Sat Jul 24, 2010 at 06:45:21 PM EST
    our police power, taxes, etc.?

    Orchids?!!!

    (I have three on a windowsill.  I got them at Trader Joe's.  I cannot vouch for Trader Joe's suppliers, permits, etc.  I am probably doomed.)

    Parent

    Well Oiled Machine (none / 0) (#7)
    by squeaky on Sat Jul 24, 2010 at 07:03:36 PM EST
    It is nuts...  

    You may want to camouflage your orchids, just in case someone gets suspicious.

    Oh.... wait,... there is probably a law about camouflaging orchids, 3 years in jail...

    Parent

    Did I say I have orchids? Uhhhh (5.00 / 1) (#11)
    by Cream City on Sat Jul 24, 2010 at 08:50:21 PM EST
    . . . I meant daisies.  Yeh, that's it.  Daisies. . . .

    Parent
    lol... (none / 0) (#12)
    by squeaky on Sat Jul 24, 2010 at 09:18:17 PM EST