NO IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNITED STATES OF AMERICA. vs. ROD BLAGOJEVICH

Transcription

1 Case: Document: 52 Filed: 05/19/2017 Pages: 54 NO IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNITED STATES OF AMERICA Plaintiff-Appellee, vs. ROD BLAGOJEVICH Defendant-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 08 CR 888 The Honorable James B. Zagel PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC Leonard C. Goodman 53 W. Jackson Boulevard, Suite 1650 Chicago, Illinois Phone (312) Michael B. Nash 53 West Jackson Blvd., Suite 618 Chicago, IL (312)

2 Case: Document: 52 Filed: 05/19/2017 Pages: 54 DISCLOSURE STATEMENT The undersigned, counsel of record for Defendant-Appellant, Rod Blagojevich, furnishes the following in compliance with Circuit Rule 26.1: 1. Full name of every party represented: Rod Blagojevich. 2. Names of all law firms whose partners or associates have appeared or are expected to appear for the party: Samuel Forbes Adam 9300 South Michigan Avenue Chicago, IL Samuel Eugene Adam Law Office of Sam Adam 9913 South Walden Parkway Chicago, IL Allan A. Ackerman Allan A. Ackerman, P.C. 19 S. LaSalle Street, Suite 502 Chicago, IL Edward Genson 53 West Jackson Blvd. Suite 1420 Chicago, IL Michael P. Gillespie Law Offices of Gillespie & Gillespie 53 West Jackson Blvd. Suite 1062 Chicago, IL Aaron Goldstein The Goldstein Firm, P.C N. Milwaukee Chicago, IL Leonard C. Goodman 53 West Jackson Blvd. Suite 1650 Chicago, IL Carolyn Pelling Gurland Law Offices of Carolyn Gurland 414 North Clay Street

3 Case: Document: 52 Filed: 05/19/2017 Pages: 54 Hinsdale, IL Lauren Kaeseberg Illinois Innocence Project One University Plaza MS PAC 451 Springfield, IL Marc William Martin Marc W. Martin, Ltd. 53 West Jackson Blvd. Suite 1420 Chicago, IL Melissa A. Matuzak 53 W. Jackson Blvd. Suite 1650 Chicago, IL Michael B. Nash 53 West Jackson Blvd. Suite 618 Chicago, IL Elliott Riebman Law Office Of Elliott Riebman 158 W. Erie Chicago, IL Sheldon Sorosky Law Office of Sheldon Sorosky 717 Ridge Road Suite 1A Wilmette, IL Giel Stein Stein Law Group LLC P. O. Box Chicago, IL The party is an individual not a corporation. /s/ Leonard C. Goodman Leonard C. Goodman 53 W. Jackson Blvd. Suite 1650 Chicago, Illinois Phone (312)

4 Case: Document: 52 Filed: 05/19/2017 Pages: 54 DISCLOSURE STATEMENT The undersigned, counsel for Defendant-Appellant, Rod Blagojevich, furnishes the following in compliance with Circuit Rule 26.1: 1. Full name of every party represented: Rod Blagojevich. 2. Names of all law firms whose partners or associates have appeared or are expected to appear for the party: Samuel Forbes Adam 9300 South Michigan Avenue Chicago, IL Samuel Eugene Adam Law Office of Sam Adam 9913 South Walden Parkway Chicago, IL Allan A. Ackerman Allan A. Ackerman, P.C. 19 S. LaSalle Street, Suite 502 Chicago, IL Edward Genson 53 West Jackson Blvd. Suite 1420 Chicago, IL Michael P. Gillespie Law Offices of Gillespie & Gillespie 53 West Jackson Blvd. Suite 1062 Chicago, IL Aaron Goldstein The Goldstein Firm, P.C N. Milwaukee Chicago, IL Leonard C. Goodman 53 West Jackson Blvd. Suite 1650 Chicago, IL Carolyn Pelling Gurland Law Offices of Carolyn Gurland 414 North Clay Street

5 Case: Document: 52 Filed: 05/19/2017 Pages: 54 Hinsdale, IL Lauren Kaeseberg Illinois Innocence Project One University Plaza MS PAC 451 Springfield, IL Marc William Martin Marc W. Martin, Ltd. 53 West Jackson Blvd. Suite 1420 Chicago, IL Melissa A. Matuzak 53 W. Jackson Blvd. Suite 1650 Chicago, IL Michael B. Nash 53 West Jackson Blvd. Suite 618 Chicago, IL (312) Elliott Riebman Law Office Of Elliott Riebman 158 W. Erie Chicago, IL Sheldon Sorosky Law Office of Sheldon Sorosky 717 Ridge Road Suite 1A Wilmette, IL Giel Stein Stein Law Group LLC P. O. Box Chicago, IL The party is an individual not a corporation. /s/ Michael B. Nash Michael B. Nash 53 W. Jackson Blvd. Suite 618 Chicago, Illinois Phone (312)

6 Case: Document: 52 Filed: 05/19/2017 Pages: 54 TABLE OF CONTENTS STATEMENT REGARDING REQUEST FOR EN BANC REHEARING STATEMENT OF FACTS A. The Indictment B. C. The First Trial The Retrial D. The First Appeal E. F. The Resentencing The Second Appeal REASONS FOR GRANTING REHEARING I. THE PANEL S DECISION THAT A SENTENCING JUDGE MAY REJECT COMPELLING EVIDENCE OF REHABILITATION (DECLARING IT "NOT ESPECIALLY GERMANE") BECAUSE THE EVIDENCE COMES FROM PRISON INMATES WHO DID NOT KNOW DEFENDANT AT THE TIME OF HIS CRIMES, CONFLICTS WITH THE SUPREME COURT'S DECISION IN PEPPER V. UNITED STATES, 562 U.S. 476 (2011) II. THE INSTRUCTIONS TO BLAGOJEVICH'S JURY MISSTATED THE LAW AS DEFINED BY THE SUPREME COURT AND BY EVERY OTHER CIRCUIT THAT HAS CONSIDERED A CRIMINAL PROSECUTION OF AN ELECTED OFFICIAL FOR SOLICITING CAMPAIGN CONTRIBUTIONS CONCLUSION APPENDIX App. 1-30

7 Case: Document: 52 Filed: 05/19/2017 Pages: 54 CASES TABLE OF AUTHORITIES McCormick v. United States, 500 U.S. 257 (1991) passim McCutcheon v. Federal Election Com n, 134 S. Ct (2014) Pepper v. United States, 562 U.S. 476 (2011) United States v. Abbey, 560 F.3d 513 (6th Cir. 2009) United States v. Allen, 10 F.3d 405 (7th Cir. 1993) United States v. Blandford, 33 F.3d 685 (6th Cir. 1994) United States v. Davis, 30 F.3d 108 (11th Cir. 1994) United States v. Garcia, 992 F.2d 409, 414 (2d Cir. 1993) United States v. Giles, 246 F.3d 966 (7th Cir. 1992) United States v. Inzunza, 638 F.3d 1006 (9th Cir. 2011) United States v. McGregor, 879 F. Supp. 2d 1308 (M.D. Ala. 2012) United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) United States v. Taylor, 993 F.2d 382 (4th Cir. 1993) OTHER AUTHORITIES Proposed revisions to Seventh Circuit Criminal Jury Instructions Seventh Circuit Pattern Criminal Jury Instruction 18 U.S.C. 1341, 1343 & 1346 Receiving a Bribe or Kickback, Committee Comment

8 Case: Document: 52 Filed: 05/19/2017 Pages: 54 STATEMENT REGARDING REQUEST FOR EN BANC REHEARING PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 35(b)(1) This case involves the following questions of exceptional importance: (1) The Panel s finding that a district judge may summarily reject compelling evidence of rehabilitation if the evidence comes from witnesses who did not know the inmate at the times of his criminal conduct conflicts with the Supreme Court s decision in Pepper v. United States and sets a terrible precedent that tells prisoners that even extraordinary efforts at rehabilitation can be summarily disregarded by the court in the event of a resentencing. (2) The Panel s approval of jury instructions allowing federal prosecutors to convict elected officials if they solicit a campaign contribution knowing or believing that it would be given to him in return for the taking... of specific official action conflicts with the Supreme Court s decision in McCormick v. United States and with the decisions of the other Circuits and sets a dangerous precedent which gives federal prosecutors the power to selectively jail elected officials engaged in ordinary political fundraising. STATEMENT OF FACTS A. The Indictment. Former governor Rod Blagojevich was charged in a multiple count indictment alleging that he attempted to exchange official actions for financial benefits. In the indictment, financial benefits was defined broadly to include both campaign contributions to the former governor s campaign account, and employment for Rod Blagojevich as Health and Human Services Secretary, a job requiring political appointment and Senate confirmation, and employment at a leadership position with a not-for-profit issue advocacy organization. R. 37. B. The First Trial. The case was tried to a jury in The evidence established that after Barack Obama was elected president on November 4, 2008, Blagojevich had the responsibility to appoint Obama s successor in the Senate. Tr Many people, -1-

9 Case: Document: 52 Filed: 05/19/2017 Pages: 54 including the President-elect, lobbied the governor to appoint their candidate to the open seat. Blagojevich told his aides that he did not want to just give the seat away but wanted to try to get something in return. While the government argued to the jury that the something Blagojevich sought was personal enrichment (equivalent to a bribe), the evidence was ambiguous at best. There was extensive evidence that Blagojevich s first choice for the Senate seat was to make a deal with Speaker of the Illinois House, Mike Madigan, to appoint his daughter, Illinois Attorney General Lisa Madigan, in exchange for the Speaker s promise to pass the governor s legislative agenda which was stalled in the House, and included a state-wide infrastructure improvement bill to provide funding to improve roads, bridges, rail lines, schools, hospitals, waterways, sewers, local public facilities, and libraries. Tr. 1303, , 3941, 3967, However, as the Panel found, the government successfully persuaded the judge to keep most Madigan transcripts out of evidence. United States v. Blagojevich ( Blagojevich-I ), 794 F.3d 729, 740 (7 th Cir. 2015). Much of the evidence admitted at trial involved Blagojevich s efforts to make a deal with the president-elect involving future employment for the governor: Blagojevich would appoint Obama s choice to replace him in the Senate, Valerie Jarrett, and in exchange, Obama would promise to appoint Blagojevich to the Cabinet post of Health and Human Services Secretary. Later, as an alternative to the Cabinet post, Blagojevich discussed with his aides whether Obama could help Blagojevich obtain future employment at a not-for-profit issue advocacy organization. The other part of the government s case involved Blagojevich s unsuccessful -2-

10 Case: Document: 52 Filed: 05/19/2017 Pages: 54 efforts to obtain campaign contributions from business leaders who simultaneously were lobbying the governor to take some official actions to benefit their businesses. Horsetrack executive John Johnston was urging the governor to sign a bill that would benefit his industry while the governor s representative was urging Johnston to fulfill his prior commitment to raise $100,000 for the campaign fund. Hospital executive Patrick Magoon was lobbying the governor for a Medicaid rate increase while the governor s representative was asking Magoon to raise $25,000 for the governor s campaign fund. Johnston and Magoon testified as to their belief that the fundraising requests were connected to the bill-signing and the rate increase, although each man conceded that neither the governor nor any representative ever told them that the actions they sought from the governor were contingent on their fundraising. Tr. 2148, The government also introduced evidence of an aborted attempt by Blagojevich to raise campaign funds from supporters of Rep. Jesse Jackson, Jr., by telling them that Jackson had a realistic chance to receive to the Senate appointment. Defendant s trial defense was good faith. With respect to his attempts to make a deal involving future employment, defendant argued that he had a good faith belief that such deals were lawful political deals, common in American history, and in the interests of his constituents because they involved only public interest jobs that would allow him to carry on his work as governor. With respect to his efforts to raise campaign funds, defendant argued that he followed the law as he understood it and as defined by the Supreme Court in McCormick v. United States, 500 U.S. 257, (1991). Two key instructions to the jury were hotly disputed. First, the court told the -3-

11 Case: Document: 52 Filed: 05/19/2017 Pages: 54 jury that any prospective employment that paid a potential salar[y] was something of value, equivalent to a cash bribe. Tr. 5538, Second, as to the counts involving solicitation of campaign funds, the judge told the jury that Blagojevich was guilty if he solicited a campaign donation knowing or believing that it would be given to him in return for the taking... of specific official action. Tr After a trial that spanned more than two months, the jury failed to reach a verdict on any count alleging political corruption and convicted defendant only on a single count alleging that he made a false statement during a voluntary interview with the FBI in C. The Retrial. The government elected to retry Blagojevich. At the retrial, the court allowed the prosecutors to add the following sentence to the defendant s good faith instruction: In the context of this case, good faith means that the defendant acted without intending to exchange official actions for personal benefits. Tr The jury was also told that personal benefits include any prospective employment. Tr. 5538, This instruction was non-pattern and unprecedented. It was read three times to the jury and applied to every count at the retrial. Tr. 5542, 5545, During closing argument, the prosecutors repeatedly told the jury that once it finds that defendant tried to exchange the Senate appointment for any prospective employment, there is no good faith as to any count. Tr. 5317, 5348, The second jury convicted Blagojevich of 16 counts of attempted extortion, bribery and honest services fraud. In December 2011, the district court sentenced Blagojevich to 168 months incarceration. -4-

12 Case: Document: 52 Filed: 05/19/2017 Pages: 54 D. The First Appeal. On appeal, defendant argued that the following three key instructions to the jury misstated the law: (1) the instruction that told the jury that any prospective employment that paid a potential salary was equivalent to a bribe; (2) the instruction that defendant was guilty of bribery and extortion if he solicited a campaign contribution knowing or believing that it would be given to him in return for... specific official action; and (3) the instruction that told the jury that in the context of this case, good faith means that the defendant acted without intending to exchange official actions for personal benefits. In its opinion, the Panel did not examine any of the three instructions challenged by the defendant. As to the first instruction, it agreed with defendant that the Health and Human Services ( HHS ) job he sought paid a bona fide wage and was not transferable property and thus could not be the object of a bribe or extortion attempt under federal law. United States v. Blagojevich, 794 F.3d 729, 736 (7 th Cir. 2015). The Panel thus vacated the five counts involving the HHS job (Counts 5, 6, 21, 22, and 23). In so holding, the Panel suggested that the instructions that told the jury that any deal involving prospective employment was equivalent to a bribe, misstated the law. But the Panel declined to discuss how these flawed instructions might be fixed, 1 or how they might have affected the guilty verdicts on the other five counts involving prospective employment at a not-for-profit issue advocacy organization (Counts 7, 8, 9, 10 and 11), which the Panel affirmed. 1/ The proposed revisions to this Court s bribery instruction states: In an appropriate case, if there is a risk that the jury might premise a bribery verdict on conduct that is outside the definition of bribery as interpreted by Blagojevich, then an instruction might be warranted to exclude that possibility. Proposed revisions to Seventh Circuit Criminal Jury Instructions. -5-

13 Case: Document: 52 Filed: 05/19/2017 Pages: 54 Second, the Panel did not discuss the knowing or believing standard which, as the prosecutor told the jury during closing argument, only required the government to prove that defendant s requests for campaign donations were connected to an official act. See Tr. 5381, In lieu of any such discussion or analysis, the Panel states: With the exception of the proposed Cabinet deal, the jury instructions are unexceptionable. They track McCormick. Blagojevich, at 738. Finally, the Panel examined only an edited version of the good faith instruction which omits the language added to the instruction prior to the retrial. 2 Thus the Panel s opinion contains no discussion of the instruction, or related arguments by the prosecutors, directing the jury to reject Blagojevich s good faith defense, as to every count, if he tried to make any deals involving the Senate seat, including the deal that the Panel itself found lawful. The Panel vacated Blagojevich s 168-month sentence and ordered the district judge to consider on remand whether it is the most appropriate sentence. Blagojevich, 794 F.3d at 743. E. The Resentencing. Blagojevich was resentenced on August 9, 2016, before the Honorable James B. Zagel. Defendant submitted more than one hundred letters from his fellow inmates which, as the defense argued, show his extraordinary rehabilitation during the four-and-a-half years of his incarceration. The inmate letters describe how the former governor s optimism, faith and generosity has enriched their lives, taught them valuable skills to help avoid mistakes of their past, and inspired them to be 2/ The good faith instruction given at the retrial contains four sentences. The Panel opinion mentions only the last two sentences of this instruction. Blagojevich, 794 F.3d at

14 Case: Document: 52 Filed: 05/19/2017 Pages: 54 better husbands, fathers, friends and citizens. And they agree, without exception, that he sought nothing in return for his good deeds. ST On top of his regular job assignments in the kitchen warehouse and later in the law library, Blagojevich taught Civil War history, World War II history, and GED classes. For inmates nearing their release date, Blagojevich volunteered his own time to conduct mock job interviews with them in the band room. He would do a follow-up a few days later, after they d completed the assigned homework, and spend one-on-one time with them usually walking laps at the track perfecting their interview skills. ST 18. Many of these men had never had a job before in their lives and after spending hours with Rod, obtained the confidence to seek gainful employment. R Blagojevich also learned, and shared with others, lessons of humility, empathy and public service. He taught his colleagues not to be bitter toward the government but, in patience, do our part and be outstanding citizens and use this time for self-improvement. ST In deciding to impose the exact same sentence of 168 months, Judge Zagel rejected the evidence of post-sentencing rehabilitation because it came from prisoners who did know defendant when he was Governor. ST 55. These prisoners were very close, or reasonably close, to Blagojevich, but they also knew him only from the inside of prison. They think of him as a good man, but they don t know him, and they don t know him in the context of a powerful officeholder in Congress and in Illinois. The District Judge concluded: The fact that the Governor has been productive, engaged and well based while in prison is laudable but it is not especially germane to my decision today. ST

15 Case: Document: 52 Filed: 05/19/2017 Pages: 54 Repeating his words from 2011, that the fabric of Illinois is torn and disfigured and not easily or quickly repaired, Judge Zagel stated that the same severe sentence is necessary to deter other would-be law breakers. ST 57. F. The Second Appeal. On appeal, Blagojevich argued that the district Judge committed procedural error in finding that his evidence of post-sentencing rehabilitation was laudable but not especially germane to the resentencing. He also urged the Panel 3 to examine the jury instructions and to correct an error in the prior opinion that resulted in a six-level enhancement of his offense level under the sentencing guidelines. The Panel affirmed all counts of conviction and the 168-month sentence. The Panel found no procedural error in Judge Zagel s finding that the evidence of postsentencing rehabilitation was not germane to his decision because none of the other inmates had known Blagojevich while he held office and therefore could not show that he had fundamentally changed his attitude toward corrupt dealing. Slip op., at 3. The Panel once again refused to examine the key jury instructions and also refused to correct the error that supported the six-level enhancement of his sentence despite the fact that the government acknowledged the error in its brief. 3/ Blagojevich s second appeal was heard by the same Panel that heard his original appeal. -8-

16 Case: Document: 52 Filed: 05/19/2017 Pages: 54 REASONS FOR GRANTING REHEARING I. THE PANEL S DECISION THAT A SENTENCING JUDGE MAY REJECT COMPELLING EVIDENCE OF REHABILITATION (DECLARING IT NOT ESPECIALLY GERMANE ) BECAUSE THE EVIDENCE COMES FROM PRISON INMATES WHO DID NOT KNOW DEFENDANT AT THE TIME OF HIS CRIMES, CONFLICTS WITH THE SUPREME COURT S DECISION IN PEPPER V. UNITED STATES, 562 U.S. 476 (2011). The lower court found that the more than one-hundred letters submitted by fellow inmates showed Blagojevich to be a model prisoner with no disciplinary infractions, who has become a tutor and mentor to many of his fellow prisoners, and has shown respect for... the correction system, and has earned praise [for] his efforts to support and assist [his fellow inmates]. ST But the court held that this evidence was not germane to its decision because those individuals don t know him in the context of a powerful officeholder in Congress and in Illinois [and they] did not hear the evidence of the Governor s former life and activities. ST 55. The Panel finds no error in the lower court s reasoning. The district judge acknowledged this evidence but found that it did not justify a lower sentence, in large part because none of the other inmates had known Blagojevich while he held office and therefore could not show that he had fundamentally changed his attitude toward corrupt dealing. Slip op., at 3. This ruling directly conflicts with the Supreme Court s holding in Pepper v. United States, 562 U.S. 476 (2011). Moreover, it sets a terrible precedent that tells prisoners that even extraordinary efforts at rehabilitation including, as in this case, a defendant who not only achieves a newfound humility and respect for the law, but shares these gifts to uplift his fellow inmates can be summarily disregarded by the court in the event of a resentencing. -9-

17 Case: Document: 52 Filed: 05/19/2017 Pages: 54 In Pepper, the defendant pled guilty to a drug conspiracy but his sentence was vacated and remanded. At resentencing, Pepper presented substantial evidence of postsentencing rehabilitation which included completion of a drug treatment program in prison, gainful employment, academic achievements, and the re-establishment of a relationship with his father. The Supreme Court found this evidence highly relevant, emphasizing that a sentencing court should obtain the fullest information possible concerning the defendant s life and characteristics; such evidence is highly relevant if not essential to the selection of an appropriate sentence. Pepper, 562 U.S. at 480. In Pepper, the evidence of rehabilitation came from drug counselors, teachers and employers, all of whom clearly did not know Pepper when he was selling and abusing drugs. Yet the Supreme Court found this evidence to be highly relevant to the sentencing factors under Section 3553(a). Judge Zagel was not required to find Blagojevich s evidence of his rehabilitation to be compelling. But he also could not disregard that evidence for an invalid reason. And the fact that the inmates who lived in close quarters with Blagojevich for four-and-a-half years did not know him when he was governor was an invalid reason to reject this evidence. Rehearing should be granted so that this Court s opinion can be squared with the Supreme Court s opinion in Pepper. -10-

18 Case: Document: 52 Filed: 05/19/2017 Pages: 54 II. THE INSTRUCTIONS TO BLAGOJEVICH S JURY MISSTATED THE LAW AS DEFINED BY THE SUPREME COURT AND BY EVERY OTHER CIRCUIT THAT HAS CONSIDERED A CRIMINAL PROSECUTION OF AN ELECTED OFFICIAL FOR SOLICITING CAMPAIGN CONTRIBUTIONS. Twelve of the eighteen counts on which Blagojevich stands convicted involve the solicitation of campaign funds. 4 The key jury instruction for these counts sets the line between lawful (and constitutionally protected 5 ) political fundraising and the federal crimes of extortion, bribery and honest services fraud. Defendant submitted a jury instruction based on the seminal criminal case involving campaign contributions, McCormick v. United States, 500 U.S. 257, 273 (1991), in which the Supreme Court held that in order to convict an elected official for requesting a donation to his campaign, the jury must find there was an explicit promise or undertaking by the official to perform or not to perform an official act. The lower court rejected the defense instruction. Instead, it gave the government s instruction directing the jury to convict defendant if he solicited a campaign donation knowing or believing that it would be given to him in return for the taking... of specific official action. Tr This knowing or believing instruction sets a much lower bar than the explicit promise instruction. To illustrate, when Blagojevich asked Magoon, Johnson and Jackson for campaign contributions, the jury could find that Blagojevich knew or believed that the only reason these folks would contribute was that they wanted Blagojevich to take some 4/ Counts 4, 5, 6, 12, 13, 15, 16, 17, 18, 21, 22 and 23 involve the solicitation of campaign funds. 5/ In McCutcheon v. Federal Election Com n, 134 S. Ct. 1434, (2014), the Supreme Court held that contributions to political campaigns are constitutionally protected political speech. -11-

19 Case: Document: 52 Filed: 05/19/2017 Pages: 54 official action on their behalf. Indeed, during closing argument, the prosecutor told the jury that Blagojevich is guilty under this standard if his request for a campaign contribution was connected to an official act. Tr. 5381, Thus, a defendant may be found guilty under this standard even though no explicit promise was ever made or understood by the parties. This knowing or believing standard sets so low a bar for conviction that it effectively criminalizes ordinary political fundraising. Nearly every large donation made to an elected official is motivated by the desire that he perform some official act benefitting the donor. See United States v. Allen, 10 F.3d 405, (7th Cir. 1993) ( It would be naive to suppose that contributors do not expect some benefit--support for favorable legislation, for example--for their contributions. ) Accordingly, if this knowing or believing standard is upheld by this Court, the government will gain the power to selectively prosecute and jail any elected official who is not wealthy enough to self-fund their campaign. This is an enormous and dangerous amount of power to be vested in federal prosecutors who can easily convince a federal jury that large donations to a certain elected official s campaign are connected to some official action. While the defense cited McCormick, the leading Supreme Court case, as authority for its instruction, the government cited this Court s decision in United States v. Giles as authority for its knowing or believing instruction. See Tr-I 5959 (jury instruction conference); Gov t. Br. in Appeal # , at 55 ( The challenged instructions were consistent with... this Court s decision in United States v. Giles, 246 F.3d 966, 972 (7th Cir. 1992) ). But Giles is a bribery case, not a campaign contribution case. See Giles, at

20 Case: Document: 52 Filed: 05/19/2017 Pages: 54 (the cash payments made to Alderman Giles were not campaign contributions ). In Giles, this Court explained directly that the knowing or believing instruction was appropriate for a bribery case 6 but was not appropriate for use in a prosecution involving campaign contributions. And we recognize a policy concern which might justify distinguishing campaign contributions from other payments. After all, campaign contributions often are made with the hope that the recipient, if elected, will further interests with which the contributor agrees; there is nothing illegal about such contributions. To distinguish legal from illegal campaign contributions, it makes sense to require the government to prove that a particular contribution was made in exchange for an explicit promise or undertaking by the official. Other payments to officials are not clothed with the same degree of respectability as ordinary campaign contributions. For that reason, perhaps it should be easier to prove that those payments are in violation of the law. Giles, at 972. This Court s pattern jury instructions also caution that when the alleged bribe is in the form of a campaign contribution, an additional instruction tracking the explicit promise language of McCormick v. United States may be required. Seventh Circuit Pattern Criminal Jury Instruction 18 U.S.C. 1341, 1343 & 1346 Receiving a Bribe or Kickback, Committee Comment. All of these warnings were ignored by the government and by the lower court in the Blagojevich case. Indeed, the government during oral argument in this case took the position that the legal standards for conviction are the same as to both campaign contributions and cash bribes, ignoring this Court s clear statement in Giles. 6/ If an elected official accepts a gift, loan or cash from a constituent knowing or believing that the largess is connected to an official act, then he should be found guilty of a federal crime. While politicians are often obligated to raise campaign funds from constituents, they are never obligated to accept bribes or gifts. -13-

21 Case: Document: 52 Filed: 05/19/2017 Pages: 54 Finally, the other Circuits that have considered the legal line between lawful requests for campaign contributions and the federal crimes of bribery and extortion have found that McCormick s explicit promise requirement is still the law of the land. See United States v. Blandford, 33 F.3d 685, 695 (6th Cir. 1994) (courts assume [Evans] establishes a modified or relaxed quid pro quo standard to be applied in non-campaign contribution cases, but the comparatively strict standard of McCormick still would govern receipt of campaign contributions by a public official ); United States v. Abbey, 560 F.3d 513, 517 (6th Cir. 2009); United States v. Inzunza, 638 F.3d 1006, 1013 (9th Cir. 2011); United States v. Davis, 30 F.3d 108, 109 (11th Cir. 1994) (per curiam); United States v. Garcia, 992 F.2d 409, 414 (2d Cir. 1993); United States v. Taylor, 993 F.2d 382, 385 (4th Cir. 1993); United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) (per curiam). See also United States v. McGregor, 879 F. Supp. 2d 1308, 1312 (M.D. Ala. 2012). CONCLUSION For the foregoing reasons, Defendant-Appellant, Rod Blagojevich, respectfully requests that this Court grant his petition for en banc rehearing. Respectfully submitted, /s/ Leonard C. Goodman Leonard C. Goodman 53 West Jackson Blvd., Suite 1650 Michael B. Nash 53 West Jackson Blvd., Suite 618 Chicago, IL (312) Chicago, IL (312) Counsel for Defendant-Appellant Rod Blagojevich -14-

22 Case: Document: 52 Filed: 05/19/2017 Pages: 54 CERTIFICATE OF COMPLIANCE WITH RULE 35 The undersigned, counsel of record for Defendant-Appellant Rod Blagojevich, hereby certifies that this Petition for en banc rehearing contains 3,883 words. Counsel used WordPerfect Version X8 to prepare the brief. The font style is Georgia and the size of the type is 13 point. Leonard C. Goodman 53 West Jackson Blvd. Suite 1650 Chicago, Illinois (312) May 19, 2017 /s/ Leonard C. Goodman LEONARD C. GOODMAN

23 Case: Document: 52 Filed: 05/19/2017 Pages: 54 CERTIFICATE OF SERVICE I, LEONARD C. GOODMAN, hereby certify that on May 19, 2017, in accordance with Fed. R. App. P. 25, and Circuit Rule 25, the foregoing Defendant-Appellant s Petition for En Banc Rehearing was served on the following by electronic delivery (ECF): AUSA Debra Bonamici United States Attorney s Office 219 South Dearborn 5th floor Chicago, Illinois Leonard C. Goodman 53 West Jackson Blvd. Suite 1650 Chicago, Illinois (312) Counsel for Defendant-Appellant Rod Blagojevich /s/ Leonard Goodman LEONARD C. GOODMAN

24 Case: Document: 52 Filed: 05/19/2017 Pages: 54 APPENDIX Final Opinion of this Court in United States v. Blagojevich, No, (July 21, 2015)... App Final Opinion of this Court in United States v. Blagojevich, No, (April 21, 2017)... App Certificate of Service... App. 30

25 Case: Document: Filed: 05/19/ /21/2015 Pages: In the United States Court of Appeals For the Seventh Circuit No 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 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 con- victed 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 investi- gators. The first trial ended with a conviction on the false- statement 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, App. 1

26 Case: Document: Filed: 05/19/ /21/2015 Pages: No 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 im- prisonment 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 ef- fort 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 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 bo- nanza. Through intermediaries (his own and the President- elect s), Blagojevich sought a favor from Sen. Obama in ex- change for appointing Valerie Jarrett, who Blagojevich per- ceived 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 App. 2

27 Case: Document: Filed: 05/19/ /21/2015 Pages: No find someone to donate $10 million and up to a new social- welfare organization that he would control. The President- elect 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 Jack- son, Jr., offering the appointment in exchange for a $1.5 mil- lion campaign contribution. (We put campaign contribu- tion 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 cor- rupt solicitation of funds (18 U.S.C. 371 and 666(a)(1)(B)) and wire fraud (18 U.S.C 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), in- cluding a campaign contribution, in exchange for the per- formance 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 pa- tients, 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. Blago- jevich initially approved a rate increase but delayed and App. 3

28 Case: Document: Filed: 05/19/ /21/2015 Pages: No then rescinded it when waiting for a contribution; he was arrested before any money changed hands. Second, after the state legislature had approved an exten- sion of a program that taxed casinos for the benefit of race- tracks see Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir. 2011) (en banc); Empress Ca- sino 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 race- tracks, 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 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 law- yer s office. Agents asked whether Blagojevich took contri- butions into account when approving state contracts or mak- ing 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 App. 4

29 Case: Document: Filed: 05/19/ /21/2015 Pages: No 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 in- sufficient to convict him on any count. The argument is friv- olous. The evidence, much of it from Blagojevich s own mouth, is overwhelming. To the extent there are factual dis- putes, the jury was entitled to credit the prosecution s evi- dence 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 Va- lerie 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 ap- pointment for a private salary after leaving the Governor- ship, these convictions cannot stand. Compare Yates v. Unit- ed States, 354 U.S. 298 (1957), and United States v. Rivera Bor- rero, 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 App. 5

30 Case: Document: Filed: 05/19/ /21/2015 Pages: No that any error was harmless; a one- line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, (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 ex- change for a private benefit, such as money. See also United States v. Sun- Diamond Growers of California, 526 U.S. 398, (1999); United States v. McDonnell, 2015 U.S. App. LEXIS (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 Rela- tions 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 Sen- ate), is a common exercise in logrolling. We asked the prose- cutor 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 convic- tion 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 App. 6

31 Case: Document: Filed: 05/19/ /21/2015 Pages: No Act, or the mail fraud statute, a rule making everyday poli- tics 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. Blago- jevich 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 offi- cial 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 pub- lic agency. That s equally true of public positions. The Presi- dent- 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 (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- App. 7

32 Case: Document: Filed: 05/19/ /21/2015 Pages: No stood (similarly, political logrolling has never before been condemned as extortion); second, the making of a recom- mendation is not transferrable. The Court restricted proper- ty 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 can- not be the subject of extortion. Section 666, the basis (through a conspiracy charge) of Count 23, forbids theft or bribery in publicly funded pro- grams (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 gra- tuity. 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 compensa- tion 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. App. 8

33 Case: Document: Filed: 05/19/ /21/2015 Pages: No The indictment also charged Blagojevich with wire fraud, in violation of 18 U.S.C That the negotiations used the phone system is indisputable, but where s the fraud? Blagojevich did not try to deceive Sen. Obama. The prosecu- tor contended that Blagojevich deprived the public of its in- tangible right to his honest services, which 18 U.S.C 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 ap- pointment 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 penal- ize political horse- trading. Skilling holds that only bribery and kickbacks violate So unless political logrolling is a form of bribery, which it is not, 1346 drops out. The prosecutor insists, however, that Blagojevich s situa- tion is different and uncommon because he sought a post in the Cabinet for himself. It isn t clear to us that this is unusu- al. The current Secretary of State was appointed to that posi- tion 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 App. 9