United States v. David J. Shields and Pasquale F. Deleo

Citation: 999 F.2d 1090Docket: 92-1683, 92-2237

Court: Court of Appeals for the Seventh Circuit; August 27, 1993; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

David J. Shields, chief judge of the Chancery Division of the Cook County Circuit Court, was convicted of accepting $5,000 or $6,000 from lawyer Pasquale F. DeLeo to influence a case. Shields received a 37-month prison sentence and three years of supervised release, while DeLeo was sentenced to 33 months and two years of supervised release. Shields claimed his innocence, asserting he did not make any deal or accept money, alleging that DeLeo orchestrated a scam involving another lawyer, who was a government informer. The Court acknowledged that the government's evidence did not include absolute clarity, such as direct photographs or tapes of the transaction. However, it found the evidence sufficient for a rational jury to convict both defendants and concluded that other legal arguments presented lacked merit, thus affirming their convictions.

The bribery investigation initially targeted a different judge suspected of corruption, rather than Shields. Robert Cooley, a lawyer and government informant with a history of corruption in Cook County, attempted to fabricate a case, Nichols v. Wilson, involving a fictional bribery scenario. Cooley testified to having bribed numerous Cook County officials before deciding to assist the FBI in exposing corruption. He sought to transfer the fabricated case to another judge after it was assigned to Shields, whom he believed to be honest.

Cooley approached DeLeo, a former law partner, for help in transferring the case. DeLeo claimed that Shields could be bribed and offered to do so himself, a surprising assertion to Cooley, who had a favorable view of Shields. The defense highlights Shields' good reputation, noting his only incident of misconduct involved attempting to evade a drunk-driving arrest.

Cooley and DeLeo agreed to offer Shields $2,500 to impose a temporary restraining order against the fictional defendant. Shields contends that DeLeo never intended to pass the money to him, suggesting that DeLeo believed he could manipulate the situation to ensure a favorable ruling for Cooley's client without actually bribing Shields. The prosecution argues that favorable rulings by Shields indicate he was bribed, while the defense claims these events suggest DeLeo was deceiving Cooley. A significant event occurred on August 17, 1988, when DeLeo called Shields’ office from Cooley's car, purportedly arranging a meeting with Shields. The defense argues that DeLeo fabricated the conversation, although they do not clarify why he would take such a risk.

DeLeo did not accept the $2,500 offered by Cooley in the car, waiting until the morning of the Temporary Restraining Order (TRO) hearing on August 19, 1988, to take the cash in a bathroom at the Richard J. Daley Center. The prosecution argues that if DeLeo were deceiving Cooley, he would have taken the money immediately, while the defense claims his delay demonstrated a lack of personal interest, portraying him as a clever swindler. Despite taking the money, DeLeo did not enter Judge Shields' chambers, later claiming to Cooley that Shields did not want the money until the case concluded. The government interprets this as typical caution, as even a corrupt judge must avoid obvious bias; nonetheless, Shields granted the TRO.

On August 30, DeLeo met Shields in a City Hall corridor, where they discussed unrelated matters, according to the defense. However, DeLeo exhibited knowledge of court proceedings that suggested prior discussions with Shields, leading the jury to reasonably infer that they may have conspired to benefit Cooley's client. Cooley provided DeLeo with an additional $2,500 on August 31, which DeLeo attempted to deliver to Shields, carrying an accordion folder with either the bribe or divorce pleadings. The defense argues these actions contradict the claim that DeLeo was simply deceiving Cooley. FBI recordings of DeLeo's conversations with Shields included a remark about having an "inside track," which raised suspicion.

Prior to the September 2 hearing, Cooley informed DeLeo about a strategy to delay the fictional defendant Wilson's motion to release frozen funds, compelling Wilson to settle unfavorably. DeLeo subsequently spoke privately with Shields, which was unusual, and their conversation was recorded, though its content was disputed by both sides.

The government presents a conversation between DeLeo and Shields regarding a case, where DeLeo indicates he wants to stall proceedings until the following week, a request that the judge ultimately granted. DeLeo later reported to Cooley that they should delay the case, which Cooley approved. The case was subsequently dismissed by agreement before further hearings, with Cooley agreeing to pay DeLeo $5,000 for his services. Cooley offered an additional $1,000 for Shields' potential future assistance, but DeLeo downplayed the need for it. Over the following months, DeLeo informed Cooley that he had not yet delivered the additional payment to Shields, while FBI agents monitored the situation without observing DeLeo. When questioned by the FBI, Judge Shields denied discussing the case with anyone other than Cooley and the involved attorneys. Six months later, a recorded conversation between DeLeo and Cooley revealed that DeLeo accurately recalled the FBI's inquiries to Shields.

The defense argues that Shields' legally correct rulings in the case negate the bribery allegations. However, it is emphasized that legality does not excuse bribery, and even favorable rulings may result from corruption. Furthermore, Shields' discretionary decisions, which consistently favored Cooley and DeLeo, suggest that the defense's argument lacks merit, as it implies DeLeo could not have predicted Shields' rulings without outside influence.

The jury's verdict is presumed credible unless the evidence, viewed favorably to the government, fails to support a rational conclusion of guilt beyond a reasonable doubt. In this case, the jury had access to incriminating recordings featuring statements interpreted as indicating collusion, with no evidence of a discussed divorce case present in those recordings. Evidence also included a private meeting between DeLeo and Shields, where DeLeo demonstrated knowledge of sensitive information only Shields could have provided. An envelope delivered to Shields by DeLeo raised further suspicion despite the defense's argument regarding its size. The defense’s theory that DeLeo would scam his former law partner Cooley was deemed implausible, as it would require DeLeo to risk his credibility and fail to explain his reluctance to accept additional money from Cooley.

The defendants sought to overturn their convictions on multiple grounds, including claims about a faulty indictment and the applicability of the Hobbs Act and Travel Act. Each argument was rejected. They argued that the indictment was flawed because the wiretap authorization was limited to Hobbs Act violations, yet evidence was presented regarding the Travel Act and false statement act. They contended this violated 18 U.S.C. 2517(5), which prohibits unauthorized use of intercepted communications, but the court found that the government could disclose such communications under 18 U.S.C. 2517(3) during legal proceedings.

The defendants' argument is ineffective for several reasons. First, they previously raised the issue in district court, where the government remedied it by securing a judicial order that permitted the release of information regarding the Travel Act and false statement charges. Subsequently, the initial indictment was voided, and the case was presented to a second grand jury, which indicted the defendants on these charges alongside the Hobbs Act. Consequently, the indictments leading to Shields and DeLeo's convictions were not compromised. 

Second, the government could not have lawfully obtained wiretap authorization based on false statement allegations, as Shields was not suspected of making false statements until after the wiretapping commenced; these statements were made to the FBI towards the end of the investigation. 

Third, the charges under the Travel Act and for false statements stemmed from the same factual basis as the Hobbs Act violation, and since the government was permitted to disclose this information to a grand jury under the Hobbs Act, the defendants did not suffer any harm from presenting the same facts in relation to different offenses. 

While the empaneling of a second grand jury typically does not rectify an indictment derived from unauthorized wiretapping, the government's issue here was not unauthorized wiretapping but rather the disclosure of learned information. The defendants' reliance on United States v. Brodson is misplaced, as it involved an indictment on entirely different grounds and a significant delay in seeking authorization. In contrast, the precedent in United States v. Arnold supports that belated approval can rectify an original authorization if it was lawfully obtained, pursued in good faith, and any questionable communications were incidentally acquired during lawful execution, all of which apply in this case.

Defendants argue that their Hobbs Act convictions should be dismissed because the funds used in the alleged extortion were provided by the FBI. However, under the Hobbs Act, the crime requires an impact on interstate commerce, and prior rulings, including United States v. Hocking, establish that the source of funds does not negate this influence. The act prohibits both completed extortion and attempts to induce victims engaged in interstate commerce to relinquish property. Conviction is possible even without an actual transfer of money, as long as there is a "realistic probability" of affecting commerce. In this case, the government argued that the bribes accepted by Shields would deplete the assets of Cooley's law firm, which conducted interstate purchases. The defendants' claim that Cooley's wealth mitigates the extortion's impact is irrelevant, as asset depletion occurs regardless of the victim's financial status. The fact that the FBI financed the bribes does not exempt the defendants, aligning with the precedent set in Hocking. The cases cited by Shields and DeLeo relate to substantive violations rather than attempts, rendering their arguments inapplicable.

The defendants argue that the government improperly established Travel Act jurisdiction by inducing defendant Nichols to return to Chicago for a hearing, which required an undercover FBI agent from Phoenix to travel to Chicago. They reference United States v. Archer, asserting that the government cannot create jurisdiction through such inducements. However, the court questions the relevance of Archer in light of United States v. Podolsky, where no entrapment was suggested. In a related case, United States v. Peters, a Travel Act conviction was upheld despite the FBI's involvement in orchestrating cross-state actions. In the current case, DeLeo insisted that Nichols return to Chicago without FBI encouragement, distinguishing it from Peters.

The individual defendants also raise additional issues. Shields contends that Judge Rovner wrongly allowed testimony from convicted Judge Frank Salerno, who claimed to have accepted bribes from DeLeo, arguing that this testimony unfairly prejudiced the jury. DeLeo's defense was complicated by his failure to specify what it was and his inability to deny taking money from Cooley. Judge Rovner initially excluded Salerno's testimony but indicated it could be reconsidered if DeLeo adopted a "rainmaking" defense. Eventually, after DeLeo suggested this defense, Salerno's testimony was permitted.

The test for admitting past act evidence under Federal Rule of Evidence 404(b) requires: (1) the evidence must pertain to a matter in issue beyond the defendant's propensity; (2) the evidence should be sufficiently similar and timely relevant; (3) there must be enough evidence for a jury to find the defendant committed the similar act; and (4) the evidence's probative value must not be substantially outweighed by the risk of unfair prejudice. In this case, Shields acknowledges the relevance of Salerno's testimony but argues it violates the other three prongs of Rule 404(b). The court disagrees, emphasizing that intent is at issue, as seen in United States v. Tuchow, where the defendant's claim of innocence was tied to his intent. The case centers on whether DeLeo's actions towards Shields were innocent or indicative of bribery. 

Shields also contends that DeLeo's bribes to Salerno were not sufficiently similar to those involving Shields. However, the court finds that DeLeo's role as a middleman was consistent in both scenarios, with the only distinction being the client representation—DeLeo acted on his own client's behalf in the past and on Cooley's behalf with Shields. This prior behavior demonstrated DeLeo's capability and willingness to bribe a judge.

Finally, regarding the prejudicial impact of Salerno's testimony, the district court's determination is afforded special deference. Judge Rovner ruled that the testimony was not excessively prejudicial due to its relevance to DeLeo’s intent, and Shields' claim of significant prejudice was deemed unconvincing. The testimony did not reflect negatively on Shields unless the jury generalized about all Cook County judges. Furthermore, the judge provided adequate instructions to the jury about the relevance of Salerno's testimony, justifying the denial of Shields' motion for severance and a special jury instruction.

DeLeo argues that prosecutors 'sandbagg[ed]' him by failing to object when he presented a rainmaking jury instruction that placed his intent in question, leading to the admission of Salerno's testimony. He claims this was unfair, particularly as the prosecution later stated that the rainmaking defense would not absolve him of liability. However, he fails to provide legal authority supporting the notion that prosecutors are required to object to their own client's potentially damaging arguments. Judge Rovner had previously warned DeLeo that asserting a rainmaking defense would open the door for Salerno's testimony. Furthermore, DeLeo's assertion that his trial counsel did not recognize the legality of bribing a judge is deemed implausible, as this is a fundamental legal understanding.

Shields contends that the prosecution's questioning of FBI informer Cooley, regarding his history with Cook County graft, improperly influenced the jury. However, the prosecution is permitted to impeach its own witnesses to mitigate the effects of cross-examination, as established in United States v. LeFevour. While impeachment cannot serve as a means to introduce inadmissible evidence, Cooley's questionable past was likely to surface during cross-examination, as Shields’ attorney had labeled him a corrupt lawyer early in the trial. Thus, the prosecution had a valid reason to address this topic during direct examination.

DeLeo also claims he should have been granted a severance due to Shields' strategy of shifting blame onto him, but this argument fails because their defenses were not antagonistic; they were identical, as required by United States v. Walters. All other arguments from the defendants are rejected, and based on the aforementioned reasoning, the convictions of Shields and DeLeo are affirmed.

Chief Judge William J. Bauer and Circuit Judges Joel M. Flaum, Kenneth F. Ripple, and Ilana Diamond Rovner recused themselves from this case, with Senior Circuit Judge William H. Timbers sitting by designation. Shields was convicted of seven counts related to violations of the Hobbs Act (18 U.S.C. § 1951), the Travel Act (18 U.S.C. § 1952), and for making false statements to federal agents (18 U.S.C. § 1001). DeLeo was convicted on five counts under the same statutes. Shields received a 37-month sentence, while DeLeo received 33 months, both to be served concurrently. The Hobbs Act prohibits obstructing commerce through robbery or extortion, with penalties including fines up to $10,000 and imprisonment for up to 20 years. The Act defines 'extortion' as obtaining property through wrongful use of force or fear. The Travel Act criminalizes traveling in interstate or foreign commerce with the intent to distribute proceeds from unlawful activity or commit violent crimes, carrying similar penalties. 'Unlawful activity' under the Travel Act includes extortion, bribery, or arson.