Document: 123
Filed: 08/04/2015
Pages: 46
NO. 11-3853
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 EN BANC REHEARING
_____________________________________________________
Leonard C. Goodman
53 W. Jackson Boulevard, Suite 1650
Chicago, Illinois 60604
Phone (312) 986-1984
Fax (312) 663-3707
lcgoodman@rcn.com
Lauren Kaeseberg
158 W. Erie
Chicago, IL 60654
(773) 517-0622
Counsel for Appellant Rod Blagojevich
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
DISCLOSURE STATEMENT
The undersigned, counsel of record for Defendant-Appellant, Rod Blagojevich,
furnishes the following in compliance with Circuit Rule 26.1:
1.
2.
Names of all law firms whose partners or associates have appeared or are
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
ii
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
TABLE OF CONTENTS
STATEMENT REGARDING REQUEST FOR EN BANC REHEARING. . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A.
B.
C.
The alleged scheme to trade the Senate seat to Jesse Jackson, Jr., in exchange
for campaign contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
D.
E.
F.
II.
CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App.
iii
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
TABLE OF AUTHORITIES
CASES
Citizens United v. Federal Elections Commission, 558 U.S. 310, 359 (2010). . . . . . . . . . 9
Elonis v. United States, 135 S. Ct. 2001, 2009 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Evans v. United States, 504 U.S. 255, 274 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14
McCormick v. United States, 500 U.S. 257 (1991). . . . . . . . . . . . . . . . . . . . . . 1, 6-7, 9-10
McCutcheon v. Federal Election Comn, 134 S. Ct. 1434, 1444-51 (2014). . . . . . . . . . . . 8
United States v. Allen, 10 F.3d 405, 410-11 (7th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Giles, 246 F.3d 966, 973 (7th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. LeDonne, 21 F.3d 1418, 1430 (7th Cir. 1994).. . . . . . . . . . . . . . . . . . . . 14
United States v. Martin-Trigona, 684 F.2d 485, 492 (7th Cir. 1982). . . . . . . . . . . . . . 1, 14
United States v. Warner, 498 F.3d 666, 691 (7th Cir. 2007). . . . . . . . . . . . . . . . . . . . . 1, 13
STATUTES
18 U.S.C. 1341. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18 U.S.C. 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
18 U.S.C. 1346. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18 U.S.C. 1951. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
18 U.S.C. 666. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10 ILCS 5/9-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
OTHER AUTHORITIES
Seventh Circuit Pattern Jury Instruction 6.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13
iv
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
The government recorded all calls for about 40 days from Blagojevichs home and office
phones, and from the phones of his close advisors. Another wiretap recorded all conversations in
-1-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
between late October and early December 2008, bolstered by the testimony of those advisors
and associates who cooperated with the government.
The evidence relating to the counts of conviction at the retrial is described below. The
Panels characterization of this evidence as overwhelming (slip opinion, at 5) fails to
account for the fact that the jury at Blagojevichs first trial heard all of the governments
evidence and failed to reach a verdict on any of the political corruption counts.2
A.
A centerpiece of the case against Blagojevich was that he committed fraud and
extortion when, in October 2008, he tried to make a deal with Senator Barack Obama to
appoint Obamas choice for his old Senate seat, Valerie Jarrett, in exchange for an
appointment to the Obama Cabinet. Blagojevich never denied that he tried to arrange this
deal. Tr. 4283-85, 4337.
The governments evidence showed that in October, 2008, representatives of thenSenator Obama sent Blagojevich the message that Obama wanted him to appoint Valerie
Jarrett to his old Senate seat. Tr. 1326-27, 1695-97. Following numerous discussions with
his advisors (recorded on government wiretaps), Blagojevich sent the message to Obama that
he would like to be appointed to the secretary of Health and Human Services in exchange
for appointing Valerie Jarrett. Tr. 1334, 1348-54, 1373-78, 1787, 2073. Blagojevich also
touted his credentials for the job based on his work as Governor expanding healthcare for
children in Illinois. Tr. 1358. Obama rejected Blagojevichs offer for a deal. Tr. 1496-1500.
The first jury found Blagojevich guilty only of making a false statement to the FBI when
he said that he does not track political contributions. R. 231.
-2-
Case: 11-3853
B.
Document: 123
Filed: 08/04/2015
Pages: 46
The alleged scheme to trade the Senate seat to Jesse Jackson, Jr., in
exchange for campaign contributions.
In October, 2008, Rajinder Bedi, a supporter of both the Governor and of Rep. Jesse
Jackson, Jr., approached Robert Blagojevich (the Governors brother and fundraising
chairman) with an offer that Bedis associate, Raghu Nayak, would raise funds for
Blagojevichs campaign3 in exchange for the appointment of Jackson, Jr. to the Senate. Tr.
2039. Robert told Bedi that he did not think his brother would appoint Jackson who has
never supported us .... Tr. 2041. On December 4, 2008, Blagojevich told his brother to
meet with Nayak and tell him that Jackson was very much real realistic and that some of
3/
The Panel states that because Blagojevich was not running for reelection, the jury was
entitled to conclude that a campaign donation was for Blagojevichs personal benefit rather than
for his campaign. Slip op., at p.3. This is incorrect. The jury was never asked to make such a
finding. The government effectively conceded this point at trial, Tr. 4767, and also introduced
evidence that campaign fundraising remained important to the Governor even after he decided
not to run for reelection. Tr. 1289, 2342. The trial evidence further showed Blagojevich to have
been scrupulous about using his campaign funds only for political purposes. Tr. 2001-11. It
used to be the case in Illinois that when a politician left office with money in his campaign fund,
that money could be converted to personal use; but this rule was changed before Blagojevich
took office. See 10 ILCS 5/9-5.
-3-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
this stuffs got to start happening now. Tr. 2135, 4538. This meeting never took place. The
December 4 call between the brothers was the key evidence cited for conviction. Tr. 5301.
The Panels finding that Blagojevich offer[ed] the appointment in exchange for a
$1.5 million campaign contribution (slip op., at 3) is not accurate. Blagojevich never tried
to offer the seat to Jackson, but only to send the message that he had a very realistic chance.4
As the Panel notes, Ambassadors, too, come ... as part of political deals. Slip op., at 9-10.
The conversation Blagojevich proposed with Nayak is the same conversation had every four
years with political supporters seeking ambassadorships show your support [by raising
money for the President] and you will have a realistic chance for the appointment.
D.
In another recorded call, excluded from the trial, Blagojevich told his brother to make it
clear to Nayak that [o]ne is not tied to the other. (Defense Tab 48).
-4-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
know. Tr. 2159-61. The deputy testified that he interpreted Blagojevichs response as an
order to put a hold on the rate increase, which he did, causing a delay in the start date of the
increase. Tr. 2161-65, 2247.
E.
In September, 2008, race track owner and long-time supporter of the Governor, John
Johnston, made a commitment to raise $100,000 for the Blagojevich campaign. Johnston
also had an interest in a revenue recapture bill which passed both houses of the Illinois
legislature in November 2008 and was sent to the Governor on November 24, 2008. Tr.
1569, 2742-49, 2980, 2989, 3723, 3770, 3790. Blagojevichs former Chief-of-Staff, Lon
Monk, acted as an intermediary between Blagojevich and Johnston. In early December,
2008, Blagojevich agreed that Monk should tell Johnston to stop screwin around and
fulfill his commitment to raise the campaign funds and that the Governor feels like youre
gonna get skittish if he signs the [recapture] bill. Tr. 2769-76. Monk then met with
Johnston, asked him to fulfill his commitment, and told him that the fund-raising request was
a different subject matter or a separate conversation from the bill signing. Tr. 2781,
3032.
F.
A Panel of this Court has found that Blagojevichs attempt to make a deal with Obama
to exchange political appointments was not a crime and it reversed the fraud and extortion
convictions on the five counts that were based on that conduct. Slip op., at pp. 5-12. The
Panel rejected Blagojevichs other claims of error at his retrial.5
5/
The 23-page Panel opinion, filed more than 19-months after oral argument, does not
address several of the claims of trial error raised by Blagojevich on appeal.
-5-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
campaign contribution and the federal crime of extortion is McCormick v. United States, 500
U.S. 257 (1991). In McCormick, a state lawmaker solicited and received campaign
contributions from doctors who stood to benefit from his support of a permitting law.
McCormick was convicted of extortion under the Hobbs Act. The Supreme Court reversed
McCormicks conviction based on flawed jury instructions which were nearly identical to the
instructions given to the Blagojevich jury.
The McCormick jury was told that it could find McCormick guilty of extortion if any
of the payments, even though a campaign contribution, was made ... with the expectation that
McCormicks official action would be influenced for their benefit and if McCormick knew
that the payment was made with that expectation. 500 U.S. at 274. The Supreme Court
found this instruction fatally deficient. A solicitation of a campaign contribution becomes
extortionate only if the payments are made [or sought] in return for an explicit promise or
undertaking by the official to perform or not to perform an official act. Id. at 273.
The Blagojevich jury was instructed:
[I]f an official receives or attempts to obtain money or property believing that it would
be given in exchange for specific requested exercise of his official power, he has
committed extortion under color of official right even if the money or property is to
be given to the official in the form of a campaign contribution. Tr. 5544.
Thus, Blagojevichs jury was told to convict Blagojevich if he believ[ed] a
campaign contribution would be given in exchange for specific requested exercise of his
-6-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
official power. The McCormick jury was told to convict McCormick if a campaign
contribution, was made ... with the expectation that McCormicks official action would be
influenced for their benefit and if McCormick knew that the payment was made with that
expectation. 500 U.S. at 274. Both defendants could be convicted based on their belief or
knowledge that the contribution was made because of an official act. Neither jury was told
of the requirement that there be an explicit promise or undertaking by the defendant to
perform an official act in exchange for the contribution.
The Panels statement that the Blagojevich jury instructions track McCormick (slip
op., at p. 12) is difficult to comprehend because the Panel provides no analysis and does not
even include in its opinion the disputed language from the instruction. The Panel does state
that a quid pro quo [does not need] to be demanded explicitly to violate the Hobbs Act but
can be done off the record or with a nudge [and a] wink. Slip op., at p. 12. Here, the
Panel seems to confuse the word explicit with the word express. McCormick does
indeed require an explicit promise, but that promise need not be express; i.e., the explicit
promise can be made with a wink and a nod, or a nudge. See Evans v. United States, 504
U.S. 255, 274 (1992) (The official and the payor need not state the quid pro quo in express
terms, for otherwise the laws effect could be frustrated by knowing winks and nods.)
(Kennedy, J., concurring).
The model for the Blagojevich extortion instruction was United States v. Giles, 246
F.3d 966, 973 (7th Cir. 2001). See Govt. Appeal Brief, p. 55. But in Giles, the defendant
Alderman took under-the-table cash payments from a private company to protect its illegal
operation in the Aldermans ward; these payments were not campaign contributions ....
Id., at 971.
It is well established that the burden on the government to prove criminality is lower
-7-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
for a politician who solicits cash or gifts from supporters, than it is for a politician, like
Blagojevich, who solicits campaign contributions.6 See McCutcheon v. Federal Election
Comn, 134 S. Ct. 1434, 1444-51 (2014) (requests for political contributions are protected
speech under the First Amendment). This Court recognizes this distinction in its current
6/
At trial, the government repeatedly misstated the law during opening statement and
summation by comparing Blagojevichs requests for campaign donations to a police officers
request for a cash bribe in exchange for tearing up a speeding ticket. Tr. 1165, 5264, 5279, 5283,
5286. This misleading tactic also pervaded the governments cross-examination of Blagojevich,
as the following excerpt illustrates:
Q. And this [requested contribution from Johnston] was money for your campaign fund,
right?
A. Yes.
Q. To benefit you, correct?
A. Campaign fund, yes.
Q. Well, to benefit you?
A. How do you define it, politically, benefit me politically.
Q. Im not saying you were going to take the money and personally spend it, but it was a
benefit to you as a politician, correct?
A. Political benefit, yes.
Tr. 4767.
Q. And this [requested contribution from Johnston] was money for you, correct?
A. Campaign funds.
Q. It was of value to you, correct?
(Objection overruled)
A. I was very scrupulous in never using campaign funds for personal use, so I dont view
that as a value to me. Its political.
Q. Your campaign fund is not a value to you, sir?
A. Its a political campaign fund. I repaid it from time to time because I wanted to make
sure
Q. My question is simple. Is your campaign fund of value to you? ***
A. Its not of personal value to me.
Q. Thats not my question. My question is, is it of value to you?
(Objection overruled)
A. My political campaign fund is not personal value to me.
Q. It was important to you, wasnt it?
A. Thats undenied.
Q. You wanted as much money as you could possibly get there, correct?
A. As long as it was obtained legally.
Q. My question was, you wanted as much money as you could possibly get there, didnt
you?
A. I think, yes.
Q. And thats because it was of value to you? ***
A. Not of personal value to me.
(Objection overruled)
Tr. 4779-81.
-8-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
Prior to January 1, 2009, it was both lawful and common practice in Illinois for governors
to ask for contributions from contractors or firms doing business with the State. Tr. 3716.
-9-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
outcomes the supporter favors.) (citation omitted); United States v. Allen, 10 F.3d 405, 41011 (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.).
For these reasons, the extortion instructions given to the Blagojevich jury were fatally
defective in that they allowed the jury to convict on Blagojevichs belief that his requests for
campaign funds were connected to official acts, in direct conflict with the McCormick
requirement that there be an explicit promise. Few politicians, who must raise campaign
funds as part of their job, could survive the legal requirements imposed on Blagojevich. His
convictions must be overturned.
II.
political corruption count, the trial court allowed the government to add the following
sentence to this Courts pattern good faith jury instruction:
In the context of this case, good faith means that the defendant acted without
intending to exchange official actions for personal benefits.
Tr. 5542, 5545, 5552. The giving of this instruction was unprecedented. Other court
instructions told the jury that personal benefits include prospective employment or
potential salaries from a job.8 Thus, the jury was told that an attempt to trade the Senate
seat for a Cabinet job was illegal and defeated a good faith defense.
These instructions misstated the law. They were based on the governments novel
8/
See Tr. 5538 (bribery instructions), Tr. 5542-45 (extortion instructions), Tr. 5537 (wire
fraud instructions), and Tr. 5550-51 (bribery solicitation and conspiracy instructions).
-10-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
theory that an attempt to exchange political appointments was illegal if the appointment
sought by the Defendant paid a salary, which was a thing of value under the bribery statute,
and property under the fraud and extortion statutes.9 As the Panel has found, the
governments theory of prosecution was fatally flawed. Blagojevichs proposal to trade one
public act for another [was] a form of logrolling and was not illegal; the Cabinet
appointment he sought was a public job which paid only a bona fide salary .... Slip op.,
at pp. 5-9.
The giving of these instructions, over defense objections, was fundamentally unfair.
At trial, Blagojevich was not even permitted to challenge the governments theory that his
attempted deal with Obama was corrupt. Initially, the trial judge told Blagojevich that if he
testified, he could say, I looked at the law and I thought it was legal .... 4/14/11 Tr. at 19;
Tr. 1028. But after Blagojevich took the stand and began to testify, the court changed its
mind and barred any testimony about his understanding of the law.10 Tr. 4181-84. The court
told Blagojevich:
[Youre] perfectly free to say I thought I could do this because I didnt think it was
one for the other. Thats what [you] can say and thats what were going to limit it to.
Tr. 4183-84.
The government fully exploited the flawed jury instructions during closing argument,
as illustrated by the following excerpts:
9/
The Panels suggestion that Blagojevich tried to present a mistake of law defense is not
correct. Slip op., at p. 13. Blagojevich never claimed that he was mistaken about the law. In a
detailed offer of proof outside the presence of the jury, Blagojevich explained that his review of
the law, history (including the Earl Warren example cited by the Panel), and his experience in
politics, led to his good faith belief that the deal he proposed with Obama was a lawful political
horse-trade. Tr. 4151-60. Indeed, as the Panel has found, Blagojevichs view of the law was
correct and the governments view was mistaken.
-11-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
Now, just so its clear, it doesnt matter if the defendant is asking for a car, for money,
or a political job for himself in exchange for that Senate seat, any one of those is
illegal. The law makes no exception for political jobs.
Tr. 5278.
[O]nce you find that hes trying to trade state action for personal benefit, you have
found intent to defraud, and you have also found that he was not operating in good
faith. Youre going to get an instruction that what good faith means is that the
defendant did not have the intent to exchange official acts for personal benefit.
Tr. 5317.
[T]he defendant was fully aware that he was trying to trade state actions for personal
benefits, and once youve found that, he does not have good faith.
Tr. 5318.
Once you find that hes trying to get, hes trying to trade state action for something
for him, there is no good faith. You have found a corrupt intent, once you found that
hes trying to trade in that way, there is no good faith.
Tr. 5348.
[G]ood faith simply means I did not think that I would [trade] one for the other. If
you decide he was trying to or make efforts to, good faith is not a defense.
Tr. 5496.
The Panels finding that the alterations to the good faith instruction were not
prejudicial (slip op., pp.13-15) should be given little weight because the Panel cites the
wrong instruction, omitting the problematic theory of prosecution language that was added
at the retrial. According to the Panels opinion, the jury was given this instruction at the
retrial:
The burden is not on the defendant to prove his good faith; rather, the government
must prove beyond a reasonable doubt that the defendant acted with the requisite
intent. The government is not required to prove that the defendant knew his acts were
unlawful.
Slip op., at p. 14.
However, that is not how the jury was instructed. The above-cited good faith
-12-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
instruction is similar to the one given at the first trial,11 and which produced the hung jury.
The full good faith instruction that was actually given at the retrial was as follows:
[G]ood faith on the part of the defendant is inconsistent with the [intent to defraud,
commit extortion; or having acted corruptly] which is an element of the charges. In
the context of this case, good faith means that the defendant acted without intending
to exchange official actions for personal benefits. The burden is not on the defendant
to prove his good faith; rather, the government must prove beyond a reasonable doubt
that the defendant acted with the intent to defraud. The government is not required to
prove that the defendant knew his acts were unlawful.12
Tr. 5542, 5545, 5552 (emphasis added to reflect the language added at the retrial).
The Panel also incorrectly states that the good-faith instruction was limited to the
wire-fraud counts. Slip op., at p. 14. In fact, it covered all counts at the retrial. The flawed
instruction was given three times, once to cover the wire fraud counts (Counts 1-10), once
to cover the extortion and conspiracy counts (Counts 11, 12, 14, 16, 18 and 19), and once to
cover the bribery and conspiracy counts (Counts 13, 15, 17 and 20). See Tr. 5542; Tr. 5545;
and Tr. 5552. Thus, the fatally flawed instruction with its theory of prosecution language
affected all counts of conviction.
The Panels finding that Blagojevich was not entitled to raise a good faith defense
because he was not charged under a statute that contains a term such as willful that (as
understood for that particular statute) makes knowledge of the law essential (Slip op., at 13),
is contrary to precedent of this Court. The Committee Comment to this Courts pattern
good faith instruction states: it should be used in cases in which the government must
prove some form of specific intent, such as intent to defraud or willfulness. Seventh
Circuit Pattern Criminal Jury Instruction 6.10, Committee Comment. This rule is well
established in this Courts prior decisions. See e.g., United States v. Warner, 498 F.3d 666,
11/
12/
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
691 (7th Cir. 2007) (fraud is a specific intent crime, and so defendants are entitled to
introduce evidence of good faith or absence of intent to defraud); United States v.
Martin-Trigona, 684 F.2d 485, 492 (7th Cir. 1982) (good faith ... is a complete defense to
a charge of mail fraud).
Thus, the Panels restriction of the good faith defense to criminal statutes containing
a term such as willful conflicts with precedent and also takes away the only viable defense
for many defendants charged with complicated or novel theories of fraud. Further, even if
this Court were inclined to go along with this curtailment on the good faith defense,
Blagojevichs conviction must still be reversed where the trial court effectively gave an
unprecedented bad faith instruction, authored by the government and based on its fatally
flawed theory of the law.
Finally, the Panels analogy to the wink and a nod corruption case is inapt. Slip op.,
at p. 12-13. First, it has been settled law since 1992 that a politician who demands a bribe
by winks and nods is guilty just the same as if he had spoken the demand out loud. See
Evans, 504 U.S. at 274 (Kennedy, J., concurring). Thus politicians have had notice for two
decades that extortion and bribery by winks and nods is illegal. In contrast, as the Panel
concedes, Blagojevich is the first politician ever convicted for an exchange of political favors
in the history of the United States. Slip op., at p. 6. Second, a politician who attempts a
corrupt deal, thinking he can avoid punishment by not speaking it out loud, knows he is doing
wrong and therefore cannot claim good faith.13 In contrast, Blagojevich believed his
proposed deal with Obama was not only lawful, but also in the interest of his political
13/
As this Court has recognized, for crimes such as fraud, the defendants knowledge of
wrongdoing is required. United States v. LeDonne, 21 F.3d 1418, 1430 (7th Cir. 1994). Just
this term, the Supreme Court reaffirmed the general rule that a guilty mind is a necessary
element in the indictment and proof of every crime. Elonis v. United States, 135 S. Ct. 2001,
2009 (2015).
-14-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
supporters because it allowed him to continue his work to expand health care after leaving
office.
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
Chicago, Illinois 60604
(312) 986-1984
Lauren Kaeseberg
158 W. Erie
Chicago, IL 60654
(773) 517-0622
Counsel for Defendant-Appellant Rod Blagojevich
-15-
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
APPENDIX
SLIP OPINION AND ORDER OF THIS COURT IN
United States v. Rod Blagojevich, No. 11-3853 (July 21, 2015)
Case: 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
In the
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 888-1 James B. Zagel, Judge.
____________________
Case: 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
No. 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
Case: 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
No. 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
Case: 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
No. 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
Case: 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
No. 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
Case: 11-3853
10
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
No. 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
11
Case: 11-3853
12
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
No. 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
13
Case: 11-3853
14
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
No. 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
15
the instructions. Cf. United States v. Curtis, 781 F.3d 904, 907
(7th Cir. 2015) (an instruction is proper unless as a whole
[it] misled the jury as to the applicable law).
We now take up challenges to the admission and exclu-
sion of evidence. Each trial lasted about a month, so there
were plenty of evidentiary rulings. On the whole, the district
judge allowed the defense considerable latitude, but Blago-
jevich cant complain about the rulings in his favor. He does
complain about several that went the prosecutions way, and
we discuss three of them.
The first concerns a ruling that excluded wiretap tran-
scripts showing that at the same time Blagojevich was asking
the President-elect for something in exchange for appointing
Valerie Jarrett to the Senate, he was asking Michael Madigan
(Speaker of the states House of Representatives) to support
his political program in exchange for appointing Lisa Madi-
gan, Michaels daughter, to the Senate. Blagojevichs lawyers
contended that his objective all along was to appoint Lisa
Madigan, then (and now) the Attorney General of Illinois.
The district judge did not allow this wiretap evidence, ruling
that it would divert attention from the indictments charges.
A bank robber cannot show that on many other occasions he
entered a bank without pulling a gun on a teller, nor can a
teller charged with embezzlement show how often he made
correct entries in the books.
As weve mentioned, the district court gave the defense a
long leash, and the judge was entitled to conclude that evi-
dence about negotiations with Speaker Madigan would side-
track this trial. See Fed. R. Evid. 403. The Madigan conversa-
tions could have shown that Blagojevich was negotiating
with many people for the best deal; they would not have
Case: 11-3853
16
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
17
Case: 11-3853
18
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
What John Harris told you is that the excuse that he got from the
defendant on that call made no sense to him, it was a red flag.
He said something to him like I want to see how it all fits to-
gether. What Harris told you there is there was nothing to see
on this bill about how it fit in with anything else that was pend-
ing at that time. And so what John Harris says, I bet hes hold-
ing this up for a campaign contribution.
John Harris goes to Bill Quinlan, he tells him what his concern is,
and he asks him to talk to the defendant and find out if thats
what hes doing. And you got the call at Tab 56 where Bill Quinlan
confirms thats exactly what the defendant is doing. And what John
Harris testified is once he knew that, he stepped out, and he left
it to the defendant and Lon Monk [a lobbyist; formerly Blago-
jevichs chief of staff] to figure out. He knew he wasnt going to
be able to do anything once he had a hold on that bill waiting for
a campaign contribution.
Case: 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
19
Case: 11-3853
20
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
thing that Im not aware of that isntthat is poten-
tially wrong and could very well be wrong. Tr.
3809.
Case: 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
21
Case: 11-3853
22
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
No. 11-3853
Case: 11-3853
No. 11-3853
Document: 123
121
Filed: 08/04/2015
07/21/2015
Pages: 46
23
23
victions on the Cabinet counts does not affect the range cal-
culated under the Guidelines. It is not possible to call 168
months unlawfully high for Blagojevichs crimes, but the
district judge should consider on remand whether it is the
most appropriate sentence.
The convictions on Counts 5, 6, 21, 22, and 23 are vacat-
ed; the remaining convictions are affirmed. The sentence is
vacated, and the case is remanded for retrial on the vacated
counts. Circuit Rule 36 will not apply. If the prosecutor elects
to drop these charges, then the district court should proceed
directly to resentencing. Because we have affirmed the con-
victions on most counts and concluded that the advisory
sentencing range lies above 168 months, Blagojevich is not
entitled to be released pending these further proceedings.
Case:
Case:11-3853
11-3853
Document:
Document:123
122
Filed:
Filed:08/04/2015
07/21/2015
Pages:
Pages:46
1
FINAL JUDGMENT
July 21, 2015
Before:
No. 11-3853
v.
ROD R. BLAGOJEVICH,
Defendant - Appellant
The convictions on Counts 5, 6, 21, 22, and 23 are VACATED; the remaining
convictions are AFFIRMED. The sentence is VACATED, and the case is REMANDED
for retrial on the vacated counts. Circuit Rule 36 will not apply. If the prosecutor elects
to drop these charges, then the district court should proceed directly to resentencing.
Because we have affirmed the convictions on most counts and concluded that the
advisory sentencing range lies above 168 months, Blagojevich is not entitled to be
released pending the further proceedings. The above is in accordance with the decision
of this court entered on this date.
Case: 11-3853
Document: 123
Filed: 08/04/2015
Pages: 46
CERTIFICATE OF SERVICE
I, LEONARD C. GOODMAN, hereby certify that on August 4, 2015, in accordance
with Fed. R. App. P. 25, and Circuit Rule 25, the foregoing Defendant-Appellants Petition
for En Banc Rehearing was served on the following by electronic delivery (ECF):
AUSA Debra Bonamici
United States Attorneys Office
219 South Dearborn
5th floor
Chicago, Illinois 60604
/s/ Leonard Goodman
LEONARD C. GOODMAN
Leonard C. Goodman
53 West Jackson Blvd.
Suite 1650
Chicago, Illinois 60604
(312) 986-1984
Counsel for Defendant-Appellant Rod Blagojevich