Robert Sorich v. United States , 709 F.3d 670 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-2839, 11-2844 & 11-2896
R OBERT S ORICH, T IMOTHY M C C ARTHY, and
P ATRICK S LATTERY,
Petitioners-Appellants,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 10 CV 1069, 10 CV 1089 &
10 CV 1091—Joan Humphrey Lefkow, Judge.
A RGUED M AY 31, 2012—D ECIDED F EBRUARY 27, 2013
Before R IPPLE, M ANION, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Robert Sorich, Timothy McCar-
thy, and Patrick Slattery were convicted of mail fraud
for their roles in a scheme to award City of Chicago jobs
and promotions to favored applicants. Consistent with
our case law at the time, the jury was instructed that the
defendants were guilty of mail fraud if they deprived
2 Nos. 11-2839, 11-2844 & 11-2896
the City of money or property, or if they deprived the
City of its right to honest services. After we affirmed
the defendants’ convictions, the Supreme Court ruled
that the honest-services fraud statute is limited only to
schemes involving bribes or kickbacks. Skilling v. United
States, 130 S. Ct. 2896 (2010). In light of Skilling, the
petitioners maintain they are entitled to collateral
relief under 28 U.S.C. § 2255. We agree with the
district court that although we now know the jury’s
receipt of an honest-services theory was error because
this scheme did not involve bribes or kickbacks, the
error was harmless. The trial reflected a single scheme to
take City jobs and promotions through false representa-
tions, and these jobs and promotions were the City’s
money or property. Any honest-services violation had to
be premised on the money/property fraud, and the
Skilling error did not have substantial effect on the
jury’s verdict. Therefore, we affirm the decision of
the district court.
I. BACKGROUND
We will offer only a brief summary of the background
facts here and will assume familiarity with our prior
opinion. See United States v. Sorich, 523 F.3d 702 (7th
Cir. 2008), reh’g en banc denied, 531 F.3d 501, cert. denied,
555 U.S. 1204 (2009). Despite a court order forbidding
the award of City jobs on the basis of any political reason
or factor (other than certain exempt jobs not at issue
here), the petitioners helped administer a political pa-
tronage system that impacted hiring and promotion in
Nos. 11-2839, 11-2844 & 11-2896 3
multiple City of Chicago departments. Sorich was the
Assistant to the Director of Intergovernmental Affairs
(“IGA”) in the mayor’s office, and McCarthy was his
deputy for several years. Political campaign coordinators
and others, including aldermen and community leaders,
gave Sorich and the IGA lists of campaign workers
and volunteers for whom they sought City jobs or pro-
motions, and these names would then be passed on to
the heads of various City departments. Among these
was the Department of Streets and Sanitation, where
Slattery was in charge of supervising the department’s
hiring and promotion process.
The jury heard that department managers held sham
interviews and falsified interview forms in favor of the
persons on the IGA lists. Some positions such as
tree trimmer had merit tests, but the results were fre-
quently ignored. Pursuant to federal consent decrees
known as the “Shakman decrees,” politics could not play
a role in City of Chicago hiring (other than in policy-
making jobs), yet scheme members repeatedly and
falsely signed “Shakman certifications” attesting that
political patronage had not affected hiring decisions.
The result of all this, of course, was that in most
cases, the persons on the IGA lists received the jobs
or promotions they wanted.
One particularly damaging piece of evidence con-
cerned a list that Sorich’s secretary kept of the names of
about 5,700 persons who sought jobs through the IGA
through 1997, the political sponsor of each applicant, and
whether the request was successful or not. The jury
4 Nos. 11-2839, 11-2844 & 11-2896
heard that after he feared the FBI might discover the list,
Sorich ordered the document destroyed. The FBI was
able to recover the list from the hard drive.
A superseding indictment charged the petitioners
with participating in a mail fraud scheme in violation of
18 U.S.C. §§ 1341, 1346, and 2. The instructions the jury
received, as was common in federal fraud prosecutions
at the time, stated that the scheme to defraud was
one intended to deprive the City of money or property,
or of honest services. The jury was instructed that to
sustain the mail fraud charges, the government had
to prove that the petitioners “knowingly devised or
participated in the scheme to defraud or to obtain
money or property by means of materially false
pretenses, representations, promises, or material omis-
sions, as charged,” that they did so with an intent to
defraud, and that they used the mail to do so. The in-
structions then defined a “scheme to defraud” as “a
scheme that is intended to deceive or cheat another and
to obtain money or property, or intended to cause the
loss of money or property to another, or intended to
deprive a governmental entity of the honest services of
its employees for personal gain to a member of the
scheme or another.” (The term “personal gain” was not
defined; neither party requested that it be.) Similarly,
“intent to defraud” was defined to mean “that the acts
charged were done knowingly with intent to deceive
or cheat the City of Chicago and the people of the City
of Chicago in order to cause a gain of money or property
to [petitioners] or others or the potential loss of money
or property to another, or to deprive the City of Chicago
Nos. 11-2839, 11-2844 & 11-2896 5
and the people of the City of Chicago of their right to
the honest services of their public employees.”
After a seven-week trial and nearly five days of delib-
erations, the jury found Sorich guilty on two counts of
mail fraud and not guilty on two other counts, and it
found McCarthy and Slattery guilty of one count of
mail fraud each. We affirmed their convictions on
direct appeal. Sorich, 523 F.3d 702. The petitioners filed
motions pursuant to 28 U.S.C. § 2255 challenging
their convictions, and the district court stayed briefing
pending the Supreme Court’s decision in Skilling v.
United States, 130 S. Ct. 2896 (2010). The Supreme Court
held in Skilling that the honest-services fraud proscribed
in 18 U.S.C. § 1346 applies only to schemes involving
bribery or kickbacks. The district court later denied
the petitioners’ § 2255 requests, ruling that the jury in-
structions were incorrect in light of Skilling but that
the error was harmless because the scheme was designed
to obtain City property. The petitioners appeal.
II. ANALYSIS
The petitioners maintain that their mail fraud convic-
tions must be set aside on collateral review in light of
the Supreme Court’s decision in Skilling. We review the
legal conclusions in a district court’s denial of a § 2255
motion de novo and any findings of fact for clear error.
Gant v. United States, 627 F.3d 677, 681 (7th Cir. 2010). The
district court made no factual findings here, so our
review is de novo. See Bethel v. United States, 458 F.3d
711, 716 (7th Cir. 2006).
6 Nos. 11-2839, 11-2844 & 11-2896
The government does not dispute that Skilling applies
retroactively to cases on collateral review. See, e.g.,
Turner v. United States, 693 F.3d 756, 758 (7th Cir. 2012)
(reviewing claim of Skilling error on collateral review). It
also does not contend that the petitioners procedurally
defaulted the argument they make now, and we agree
that this is not a case of procedural default. The peti-
tioners argued to the trial court and on direct appeal
that the honest-services jury instructions impermissibly
expanded the scope of that crime beyond that pro-
scribed by 18 U.S.C. § 1346. They also argued that the
private gain standard we set forth in United States v.
Bloom, 149 F.3d 649 (7th Cir. 1998), was valid only to
the extent it required a showing of personal gain to the
petitioners or other co-schemers, and that any broader
reading of Bloom would render the honest-services
statute unconstitutional. In light of these arguments,
we will not apply the doctrine of procedural default
to preclude the petitioners from making their current
argument.
With those initial hurdles aside, we turn to the heart of
the appeal. Because the scheme in this case did not
involve bribery or kickbacks, the government concedes
that giving the jury an honest-services theory of mail
fraud was wrong in light of Skilling. The government
maintains, however, that the error was harmless. The
Supreme Court ruled in Yates v. United States, 354 U.S.
298 (1957), that constitutional error occurs when a jury
is instructed on alternative theories of guilt and returns
a general verdict that may have relied on a legally
invalid one. But the Supreme Court has decided,
including in Skilling, that such an error is subject to
Nos. 11-2839, 11-2844 & 11-2896 7
harmless-error analysis and does not necessarily
require reversal. Skilling, 130 S. Ct. at 2934; see also
Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam).
Our question, therefore, is whether the error in this
case was harmless.
We have described the harmless-error inquiry in a
claim of Skilling error as a question of whether the trial
evidence was such that the jury must have convicted
the petitioners on both theories of fraud—money/prop-
erty and honest services. See Turner, 693 F.3d at 759 (re-
viewing claim of Skilling error on collateral review).
Or, stated differently, “if the evidence on the two fraud
theories was so thoroughly coextensive that the jury
could only find the defendant guilty or not guilty of
both, then the conviction will stand even though one
theory is later held to be legally invalid.” Id. We quoted
in Turner from our explanation in United States v.
Segal, 644 F.3d 364 (7th Cir. 2011):
So the issue here boils down to this: would the jury
still have convicted Segal had it not been told
that in addition to the valid money/property
fraud allegations, an allegation of honest services
fraud could also be taken into consideration? We
conclude that the jury would—and almost cer-
tainly did—convict Segal for money/property
fraud, irrespective of the honest services charge.
This is because even if the jury concluded that
there was an honest services violation, that viola-
tion had to be premised on money/property
fraud. That is, to the extent Segal was depriving
8 Nos. 11-2839, 11-2844 & 11-2896
others of his honest services, it was because he
was taking their money.
Turner, 693 F.3d at 759 (quoting Segal, 644 F.3d at 366); see
also United States v. Black, 625 F.3d 386, 393 (7th Cir. 2010)
(finding harmless error where “[n]o reasonable jury
could have acquitted the defendants of pecuniary fraud
on this count but convicted them of honest-services
fraud”).
The parties both take the position that on collateral
review, the error in instructions will result in reversal
only if the error had “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). This inquiry does
not ask whether the jurors “were . . . right in their judg-
ment, regardless of the error or its effect upon the ver-
dict. It is rather what effect the error had or reasonably
may be taken to have had upon the jury’s decision.”
Kotteakos, 328 U.S. at 764. If a court is in “grave doubt”
about whether the error is harmless, meaning that, “in
the judge’s mind, the matter is so evenly balanced that
he feels himself in virtual equipoise as to the harm-
lessness of the error,” the court is to treat the error
as though it affected the verdict. O’Neal v. McAninch,
513 U.S. 432, 435 (1995). We will apply this standard as
well. Cf. Ryan v. United States, 688 F.3d 845, 848 (7th Cir.
2012) (considering case under harmless-error inquiry,
framed as though it were direct appeal, where govern-
ment had not argued in its initial brief that standard on
collateral review was different).
Nos. 11-2839, 11-2844 & 11-2896 9
We are not in “grave doubt” here. After reviewing the
record, we are assured that the Skilling error did not
have “substantial and injurious effect or influence” in
determining the jury’s verdict. And as in Turner and
Segal, we conclude that the jury would still have con-
victed the petitioners on the money/property fraud
allegations even if it had not received an honest-
services fraud theory to consider. As in those cases,
the two fraud theories here were coextensive; any hon-
est-services violation had to be premised on money/prop-
erty fraud. The government alleged, and the evidence
showed, a single scheme by the petitioners to fraud-
ulently award City jobs and promotions to individuals
based on political considerations despite the outward
appearance that all City hiring policies and procedures
were being followed. The honest-services theory and
instructions did not have substantial and injurious effect
or influence on the jury’s conclusion that the petitioners
were guilty of mail fraud.
The indictment did not distinguish between an honest-
services scheme and a money/property scheme or
between the bases for the two theories. Instead, the in-
dictment alleged a single scheme to defraud the City
of “money, property, and the intangible right to the
honest services” of the petitioners “and to obtain
money and property by means of materially false and
fraudulent pretenses, representations, promises, and
material omissions.” More particularly, it alleged that
the petitioners “engaged in a systematic effort to
provide financial benefits, in the form of City jobs and
promotions, in exchange for campaign work” and that
10 Nos. 11-2839, 11-2844 & 11-2896
Sorich and McCarthy “corrupted the City’s personnel
process by directing the awarding of jobs and promo-
tions in non-policymaking positions to candidates pre-
selected by IGA through sham and rigged interviews.”
The trial also reflected a single scheme. In its opening
statement, the government explained that the case was
about City jobs:
In summary, there are four things that this case is
about. It is about rewarding political workers
with City jobs. It is about rigging the promotion
process for City jobs. It is about violating the
law, including this federal court order which
unmistakably and unequivocally banned political
considerations for these very jobs that I’ve been
talking about. And it’s also about the extra-
ordinary efforts that were taken by each of these
defendants in different ways to conceal what
they were doing.
The evidence at trial also reflected a single scheme,
where, as we previously recognized, “getting the city to
award jobs to political workers and cronies was the
very object of the defendants’ scheme.” Sorich, 523 F.3d
at 713. There was not an independent honest-services
scheme. Instead, all the evidence related to the fraud-
ulent selection or promotion of City jobs. The jury heard
that the petitioners falsified ratings forms and falsely
signed certifications attesting that political considera-
tions had played no part in the hiring decision, all so
that pre-selected persons would receive jobs and pro-
motions. The jury also heard instances where persons
Nos. 11-2839, 11-2844 & 11-2896 11
received jobs despite being unqualified for them. The
government’s closing arguments similarly detailed, at
length, the single scheme to defraud the City.
The petitioners nonetheless maintain that the honest-
services instructions had substantial and injurious
effect on the jury’s determination that the petitioners
were guilty of mail fraud. For one, the petitioners argue
that a properly instructed jury would not necessarily
have found that the jobs given out through patronage
were “property” under the mail fraud statute. See 18
U.S.C. § 1341 (criminalizing, among other things, use of
mail “for obtaining money or property by means of false
or fraudulent pretenses”). But we held on direct appeal
“that jobs are property for purposes of mail fraud.”
Sorich, 523 F.3d at 713. The petitioners contend that
this conclusion only applied to the sufficiency of the
allegations in the indictment, and they argue that the
private gain in the form of a City job or promotion ob-
tained through patronage does not necessarily entail a
deprivation of the City’s property. We rejected on direct
appeal the argument that the City had not suffered a
loss since it would have filled the jobs and paid the
salaries anyway. Sorich, 523 F.3d at 713. The scheme
to distribute City jobs deprived the City of its right to
control how its money was spent. We reaffirm our
previous discussion and conclusion that the jobs here
are property for purposes of mail fraud, and, in any
event, as we later said in United States v. Del Valle,
“whether or not ‘jobs’ are property, the money paid for
the job (that is, the salary), is ‘money.’ ” 674 F.3d 696,
704 (7th Cir. 2012).
12 Nos. 11-2839, 11-2844 & 11-2896
Relatedly, the petitioners argue that the jury did not
necessarily conclude that the petitioners schemed to
deprive the City of money or property. To obtain the
mail fraud convictions, the government needed to
prove that the petitioners acted with the intent to de-
fraud. United States v. Jackson, 546 F.3d 801, 810 (7th
Cir. 2008). The petitioners argue that because they
received no cash themselves, the jobs were filled, and
work was getting done, the jury might have thought
that the petitioners did not intend to deprive the City
of any money or property. But the jury heard that, con-
sistent with the petitioners’ wishes, jobs went to people
who were not qualified for them. It heard that
applicants took job-related tests where the test results
were ignored. It heard in detail, for example, the story
of IGA intervention in the hiring of a building inspector
where, only because of the IGA’s involvement, the
position went to a person who lacked the requisite ex-
perience and only after interview scores were changed
and documents backdated. The jury also heard all about
the petitioners’ roles in the falsification of interview
reports and the false signing of Shakman certifications
attesting that hiring had not been the result of political
patronage, when in fact it had. As we explained in
another challenge to a mail fraud conviction involving
this same IGA scheme:
The City of Chicago did not get the employees
that it wanted to hire and thus was cheated out of
money. [The defendant]’s contention that the
workers he hired were just as good as those the
City wanted is irrelevant and misses the point.
Nos. 11-2839, 11-2844 & 11-2896 13
The City, not [the defendant], gets to set the
criteria for hiring.
Del Valle, 674 F.3d at 704.
The petitioners also argue that in light of the evidence
the jury heard that persons who received the jobs and
promotions gave free assistance to political campaigns,
the jury might have concluded that the private or
personal gain in this case was the campaign benefits
received by members of the Democratic political ma-
chine. To find an honest-services violation, the jury
was instructed that it had to find a private gain. See
United States v. Black, 625 F.3d 386, 391 (7th Cir. 2010)
(noting that such an instruction was proper before Skil-
ling). If the jury found that campaign benefits con-
stituted the private gain, then the petitioners contend
that the jury could have concluded that the scheme in-
volved only honest-services fraud but not money/
property fraud, and so, they contend, the honest-
services instruction had substantial and injurious effect
in determining the jury’s verdict.
We disagree. Any political benefits that accrued to
others occurred only as a result of City jobs being doled
out the way that they were. Cf. Segal, 644 F.3d at 366(“[T]o the extent Segal was depriving others of his honest
services, it was because he was taking their money.”).
As the district court explained, “while Democratic candi-
dates may have gained political advantage from peti-
tioners’ scheme, that gain depended on city jobs being
handed out based on illegitimate considerations.” This
is clear from the evidence, and it was also the govern-
14 Nos. 11-2839, 11-2844 & 11-2896
ment’s position at trial. It said, for example, in its
opening statement: “[W]e are not here to say that
politics is a dirty word. But what makes it dirty was
that when it’s used as a motive to hand out jobs, tax-
payer subsidized jobs . . . when taxpayer jobs are the
fuel for this scheme, are the reward or the carrot
for participating in the Mayor’s organization, political
organization, that’s wrong . . . that’s a crime.” The govern-
ment argued in its closing argument that the advantage
to political campaigns was based on “labor that was
paid for . . . using City jobs and City money” and said in
its rebuttal that the petitioners “took too much power
and abused that power by stealing City jobs and did so
in order to subsidize and otherwise facilitate the cam-
paigns of favored politicians and awarding those who
acted as foot soldiers in this patronage army by giving
them City jobs and City promotions paid for by the tax-
payers.” The government never argued that the jury
should convict based on an honest-services theory that
was separate from the award of City jobs through false
representations. So while the motive for the scheme
may have been to get campaign help, the way the peti-
tioners achieved that goal was to give out City jobs in
an improper manner. Because the City jobs and promo-
tions were money/property, the erroneous honest-
services instruction did not have an injurious effect
on the verdict.1
1
We also note that the district court recognized that “very little,
if any, evidence was introduced on the advantage reaped
(continued...)
Nos. 11-2839, 11-2844 & 11-2896 15
The petitioners also point to statements in the gov-
ernment’s opening statement and closing argument,
such as “this is a case about breach of the public trust”
and the petitioners’ actions constituted a “perversion of
the public trust.” They also emphasize the government’s
statement in its rebuttal closing argument that the
scheme was meant to deprive people of “something
more important” than money in performing the jobs
because a scheme that “deprives the people of the
trust they placed in their employees is a depr[i]vation of
honest services. That itself is a violation of the federal
mail fraud statute.”
These arguments do not help put us in doubt about
whether the Skilling error was harmless. The argument
that the petitioners’ actions breached the public trust
emphasized the egregiousness of the scheme, and it was
a valid argument to make even under just a money/
property theory. The City did argue in its closing
argument that depriving the City of honest services
violated the mail fraud statute, and we now know that
was improper because the scheme did not involve bribes
or kickbacks. But the jury was also instructed that it
could not convict on an honest-services theory unless it
found private gain. Because we presume that a jury
follows its instructions, Christmas v. City of Chicago, 682
1
(...continued)
from having a political organization, with the vast majority of
the evidence focused instead on how the patronage system
operated, including the fact that individuals engaged in
political work to obtain city jobs and promotions.”
16 Nos. 11-2839, 11-2844 & 11-2896
F.3d 632, 641 (7th Cir. 2012), and because we have
already concluded that the private gain here must have
involved money or property, the government’s state-
ment does not warrant setting aside the verdict.
Similarly, although the petitioners suggest that a jury
might have determined their repeated violations of
the Shakman decree to constitute only honest-services
fraud, the Shakman violations were about City jobs.
And falsifying documents to get City jobs to certain
applicants meant giving City jobs and money to favored
applicants. In short, the jury’s guilty verdicts mean the
jury necessarily would have concluded that the peti-
tioners were guilty on a money/property theory, and so
the honest-services theory did not have substantial and
injurious influence on the jury’s verdict. See, e.g., Segal,
644 F.3d at 366; Messinger v. United States, 872 F.2d 217,
222 (7th Cir. 1989) (concluding that for jury to find de-
fendant guilty of mail fraud for defrauding county of
its intangible rights, it must have found that the
county was defrauded of its security interest repre-
sented by a cash bail bond); United States v. Doherty,
867 F.2d 47, 58 (1st Cir. 1989) (Breyer, J.) (upholding
conviction where jury not presented with a money/prop-
erty fraud theory and only given a later-invalidated
intangible-rights theory, because it was “virtually incon-
ceivable” that the jury could have found the defendants
guilty of mail fraud without believing they were con-
spiring to deprive the state of money in the form of job
promotions and salaries).
Finally, the petitioners argue that the more avenues
open to the jury to reach a guilty verdict, the more likely
Nos. 11-2839, 11-2844 & 11-2896 17
it is that the randomness inherent in the jury process
will produce a conviction. They say that the govern-
ment fought to have the honest-services theory included
in the jury instructions, and they point out that in an-
other case involving this same scheme, a jury acquitted
the defendant of money/property fraud but convicted
him of honest-services fraud. See United States v.
Sanchez, No. 07 CR 149 (N.D. Ill.). (The government
notes that when the defendant was later re-tried on
only a single money/property fraud count, however,
he was convicted.)
We do not know why the initial Sanchez jury acquitted
on the honest-services fraud charge, but we must
presume that juries follow the instructions they receive.
Weeks v. Angelone, 528 U.S. 225, 234 (2000). We have
explained that “[a jury] has the power to acquit on bad
grounds, because the government is not allowed to
appeal from an acquittal by a jury. But jury nullification
is just a power, not also a right, [ ], as is shown among
other things by the fact . . . that a trial error which
favors the prosecution is harmless if no reasonable jury
would have acquitted, though an actual jury might have
done so.” United States v. Kerley, 838 F.2d 932, 938 (7th
Cir. 1988) (internal citations omitted); see also Smith v.
Winters, 337 F.3d 935, 938 (7th Cir. 2003) (“A defendant
has of course no right to ask the jury to disregard the
judge’s instructions (’jury nullification’).”) The peti-
tioners point to no court that has suggested that the
“randomness inherent in the jury process” is a proper
consideration in a harmless-error analysis, and we
decline to find that it is here.
18 Nos. 11-2839, 11-2844 & 11-2896
III. CONCLUSION
The judgment of the district court is A FFIRMED.
2-27-13