United States v. Synowiec, Leszek ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1169 & 03-1235
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LESZEK SYNOWIEC,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 856—David Coar, Judge.
____________
ARGUED JUNE 3, 2003—DECIDED JUNE 24, 2003
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
EVANS, Circuit Judge. Without question, Leszek
Synowiec bribed an Immigration agent on March 24, 1999.
Even Synowiec would not quibble with that fact. But did
he bribe the same agent a month earlier, the date the one-
count indictment alleged that the crime was committed?
District Judge David Coar said “yes” after a court trial, and
Synowiec appeals, challenging the sufficiency of the evi-
dence supporting his conviction.
INS agents arrested a Polish woman, Malgorzatka
Nieweglowska, at a house in Elmwood Park, Illinois, on
February 10, 1999. Nieweglowska was in the country ille-
2 Nos. 03-1169 & 03-1235
gally, a fact she readily admitted. Synowiec was at the
house with Nieweglowska when she was arrested. After
the arrest, Nieweglowska surrendered her passport to
the agents and was taken downtown. She was booked and
then released pending a hearing.
Several days later, two of the arresting INS agents
returned to the house after receiving a call from
Nieweglowska. Once there, Synowiec asked one of the
agents, Derewonko, if there was “anything that could be
done” about Nieweglowska’s case. He also asked if the
agent could lose Nieweglowska’s “paperwork.” When asked
what he meant, Synowiec rubbed his thumb and index
finger together and said, “I’ll take care of you anytime,
anywhere.” Near the end of this conversation, Synowiec
directed Nieweglowska to pour a glass of cognac for the
party, and he proposed a toast: “This is to a friendship
and to future business . . . .”
Following the meeting we just described, Synowiec
called Agent Derewonko’s pager a few times but got no
response. Then, on February 24, Derewonko called
Synowiec, and the phone was hot. The following conversa-
tion was recorded:
SYNOWIEC: Did you give any thought on the sub-
ject:
DEREWONKO: Yeah, but listen, I, I started but you
know to check everything so that
everything would be okay. I have to
collect all the paperwork and slowly
I’m throwing away paperwork that’s
not needed, and that’s all. The pass-
port I have of Malgorzatka. You
know, now I have to get on a com-
puter that gets all the court dates, so
I asked this one piece of ass who
Nos. 03-1169 & 03-1235 3
works in that area to go skiing with
me this weekend.
SYNOWIEC: aha, aha.
DEREWONKO: So Lester, how much do you think?
What’s it going to look like? How
do you want to take care of this? For
me now, this will be no problem to
take care of.
SYNOWIEC: For me, there’s no problem. Listen
Les, take care of it. You know the
situation, take care of it, you know,
bring me the passport, you know,
and the paperwork, you know, that
what is not needed you throw out
or take out of her file, you know.
The best thing is, if she didn’t have
to go to court. You know, if you would
be able to take care of this.
After discussing what should be done, Synowiec turned
the discussion to price.
SYNOWIEC: We’re talking like two men. How
much? How much? And that’s it. We
meet and that’s it.
DEREWONKO: Okay.
SYNOWIEC: Whatever time. You know? We meet
and everything is fine.
DEREWONKO: Well, okay, but Lester, how much do
you think?
SYNOWIEC: I don’t think. You should think, you
know? You need to tell me. You
know? We’re Lester and Lester.
[Note: The recorded conversations
were in Polish, and the parties stipu-
4 Nos. 03-1169 & 03-1235
lated to the accuracy of the tran-
scripts. So we can only assume that
“Leszek” in Polish is fairly translated
as “Lester” in English. And in a bit
of an irony, Agent Derewonko’s first
name is Lester.]
DEREWONKO: Well, okay, but then I don’t want
to give you a price and . . .
SYNOWIEC: Well tell me in round about way,
around . . .
DEREWONKO: Well okay.
SYNOWIEC: How much does something like that
run?
DEREWONKO: Well okay.
SYNOWIEC: Well, you know. How much? Around?
DEREWONKO: Okay.
SYNOWIEC: Les, you know, when you take care
of things and you know everything
is fine you let me know.
DEREWONKO: Okay, once I take care of all the pa-
perwork and everything is fine I’ll
tell you exactly how much.
SYNOWIEC: No problem.
DEREWONKO: Don’t worry this isn’t the first time
I’m doing something like this.
SYNOWIEC: Oh, oh, I like that, I like the sound of
that.
Later in the same conversation, after discussing the
possibility of doing other “business” together, Agent
Derewonko said:
Nos. 03-1169 & 03-1235 5
DEREWONKO: Right now everything is under con-
trol. I just want to check a couple
things and make sure everyone for-
gets about the case, and then let’s
move forward.
SYNOWIEC: Okay.
Derewonko and Synowiec then agreed that they would
meet in the future.
The indictment charged that Synowiec committed the
crime of bribery of a public official during the February 24
recorded conversation we just reproduced. Synowiec ar-
gues that his statements fell short of being an offer or
promise to give something of value sufficient to satisfy
the statute he was charged with violating, 18 U.S.C.
§ 201(b). Because no actual price was discussed or agreed
to during the conversation, Synowiec contends that the
evidence against him is legally insufficient. This is so, he
says in a bit of hyperbole, because he “clearly and stead-
fastly declined to give the INS agent the offer he re-
quested” during the conversation.
Synowiec’s view of what is necessary for an “offer” under
the bribery statute is too rigid and formalistic. It is not
necessary for a briber to be familiar with Williston on
Contracts in order to make an illegal offer. Under the
statute, it is sufficient if a “defendant expresses an abil-
ity and a desire to pay the bribe.” United States v. Rasco,
853 F.2d 501, 505 (7th Cir. 1988). This can be done in the
often clandestine atmosphere of corruption with a sim-
ple wink and a nod if the surrounding circumstances
make it clear that something of value will pass to a pub-
lic official if he takes improper, or withholds proper, ac-
tion. And we think Synowiec’s actions and statements,
both on February 24 and in the earlier discussion when
he rubbed his thumb and index finger together in a uni-
versally understood gesture implying money, passes the
6 Nos. 03-1169 & 03-1235
test. The requirement that a defendant expresses “an
ability and desire to pay a bribe” in order to satisfy the
bribery statute is a less demanding requirement than
what the civil law requires for an enforceable offer. Under
Rasco, Synowiec would be guilty of offering a bribe if he
told Agent Derewonko “I am willing and able to pay you
to make Ms. Nieweglowska’s case go away” even though
that statement would not meet all the formal require-
ments for a binding offer under civil law.
The view we express is consistent with the require-
ment that § 201 “is to be broadly construed in order to
effectuate its legislative purpose of deterring corruption.”
United States v. Hernandez, 731 F.2d 1147, 1149 (5th Cir.
1984). Using technical civil law hornbook definitions of
“offer” would be at odds with the goal that § 201 be an
effective net for snaring those who would subvert the pub-
lic good.
Synowiec relies heavily on Hernandez saying that what
he did on February 24 and before amounted to no more
than a “preliminary preparatory step that might have led
to an offer.” In Hernandez, the defendant was accused of
using a go-between, Brown, to attempt to bribe a police
officer to change his testimony in violation of 18 U.S.C.
§ 201(d). Brown, however, made only two contacts with
the officer that related to a bribe: (1) Brown told the offi-
cer that some people were asking about the officer; and
(2) in response to the officer’s inquiry as to why, Brown
related that these people “they want to know if you can
be bought, if you will change your testimony.” 731 F.2d
at 1150. The court concluded that this solitary query
was merely a preliminary “feel out” that did not rise to
the level necessary to show a bribe offer, and reversed the
conviction.
Synowiec’s discussions with Agent Derewonko are a far
cry from what happened in Hernandez where only one
Nos. 03-1169 & 03-1235 7
statement was even arguably relevant, and that said
nothing about the identity of the offerer or that person’s
willingness or ability to pay anything. Fundamental de-
tails were absent, such as which case was involved and
what the officer was expected to do. Unlike here, there
was no expression of interest by the officer, no subse-
quent meetings or negotiations, no repetition of the offer,
and no actual agreement that the officer would under-
take the illegal act.
Courts presented with facts analogous to this case
have had no trouble concluding that matters progressed
beyond the mere “feeling out” stage. See United States v.
Muhammad, 120 F.3d 688, 693-94 (7th Cir. 1997) (reject-
ing contention that defendant who agreed, during a con-
versation with an undercover agent, to corruptly in-
fluence fellow jurors and who went to a meeting spot
with intent to take money, but who did not actually ap-
proach the agent at the spot, had not completed a “substan-
tial step” towards soliciting a bribe); Rasco, 853 F.2d at
504 (rejecting contention that proof was insufficient be-
cause defendant did not offer any specific amount of
bribe). This is true even when there was an express dis-
agreement between the parties as to what the amount
of the bribe would be. See United States v. Jacobs, 431 F.2d
754 (2nd Cir. 1970) (finding that IRS agent’s rejection of
$5,000 bribe offered by defendant “had no bearing” on
whether defendant violated the bribery statute because
the crime was already complete once defendant “ex-
pressed an ability and a desire to pay”).
Finally, although the government does not argue the
point, the indictment here charged that the crime was
committed “on or about” February 24, 1999. Because the
exact date was not a critical part of the charge, we think
Synowiec’s actions on March 24 could fairly be consid-
ered part and parcel of the bribery charge. See United
States v. Kimberlin, 18 F.3d 1156 (4th Cir. 1994) (Fact
8 Nos. 03-1169 & 03-1235
that indictment charged that underlying drug violation
occurred “[i]n or about July” did not preclude a conviction
for carrying firearm during drug trafficking crime based
on evidence that defendant carried a gun during a drug
transaction in August; date specified in indictment was
not substantive element of crime, and defendant was
not prejudiced by inclusion of that date.); United States
v. Nersesian, 824 F.2d 1294 (2nd Cir. 1987) (Where “on
or about” language is used, the government is not re-
quired to prove the exact date, if a date reasonably near
is established). As we have observed:
Where the indictment alleges that an offense alleg-
edly occurred “on or about” a certain date, the defen-
dant is deemed to be on notice that the charge is not
limited to a specific date. He therefore cannot make
the requisite showing of prejudice based simply on
the fact that the government has failed to prove a
specific date. The courts agree that when the indict-
ment uses the “on or about” designation, proof of a
date reasonably near to the specified date is sufficient.
United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)
(citations omitted). Indeed, “[u]nless the particular date
is an element of the alleged offense, it is generally suffi-
cient to prove that the offense was committed on any day
before the indictment and within the statute of limita-
tions.” Id. at 378.
As we said in opening this opinion, not even Synowiec
quibbles with the fact that he bribed Agent Derewonko
on March 24. During their meeting that day in the park-
ing lot of a White Castle restaurant in Chicago, Synowiec,
on videotape, peeled off four $100 bills from a roll of
about $5,000 and gave them to Derewonko to close the deal.
Lastly, in sentencing Synowiec to a year of probation,
with 6 months of home detention and a fine of $20,000,
Judge Coar declined to award a 2-point reduction for
Nos. 03-1169 & 03-1235 9
acceptance of responsibility. Synowiec challenges that
decision, but we will not disturb it. It is only in rare
situations that a defendant, who goes to trial, gets re-
warded with a reduction for acceptance of responsibility.
And this is not one of those rare situations. Although
Synowiec characterizes his defense as strictly legal, it
was not. He disputed facts and fair inferences and never
admitted criminal responsibility nor expressed any real
remorse for his actions.
For these reasons, the judgment of the district court
is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-24-03