USA v. Thomas Hawkins and John W. Racasi,  No. 14-1892 & 14-1908.Thomas Hawkins and John Racasi were employed as analysts on the staff of Larry Rogers, a member of the Cook County Board of Review, when they accepted money from Ali Haleem, a corrupt Chicago police officer acting as an undercover agent. The Board of Review hears complaints by property owners who believe that the assessed valuation (which affects real-estate taxes) is excessive. Haleem paid Hawkins and Racasi to arrange for lower assessments. They took his money, and the assessments were reduced. A jury found that Hawkins and Racasi had violated 18 U.S.C. § 666 (theft or bribery concerning programs receiving federal funds) and § 1341 (mail fraud), plus corresponding prohibitions of conspiracy.

§ 666 forbids taking gratuities as well as taking bribes.   The record shows that the payments were, if not bribes, then gratuities (from defendants’ perspectives) even if Haleem would have preferred to get something for his money. The jury may well have found that defendants intended to be influenced; but if they did not, then they intended to be rewarded for the positions they held, if not for services delivered. They are guilty either way.

The convictions under § 1341 pose a different problem. The mail-fraud statute is not as detailed as § 666. It prohibits schemes to defraud that use the mails but does not elaborate.  Hawkins and Racasi may have defrauded Haleem out of his money (this was their defense !), but that was not the prosecutor’s theory.  The United States relied on 18 U.S.C. § 1346, which defines scheme to defraud as including “a scheme or artifice to deprive another of the intangible right of honest services.” The idea is that the employer has a right to loyalty from agents and employees, and the prosecutor contended that Hawkins and Racasi deprived Cook County of their loyal services by taking Haleem’s money secretly. But “honest services” is open-ended, and defined in Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010).

The district court instructed the jury that it could convict defendants under § 1341 only if they “intended to deprive another of the intangible right to honest services through bribery.” So far, so good.  But the instructions then defined bribery to include “corruptly intending to be influenced or rewarded.”

The judge drafted an instruction that tracks § 666 (by including “reward”) rather than use the circuit’s pattern instruction for § 1341 because, he said, the jury would be confused if the § 666 and § 1341 charges were treated differently. Yet if the statutes are different, the jury must be told.

The United States weakly argues that any error was harmless, but that contention relies entirely on the undisputed fact that the defendants told Haleem that payments would induce them to lower the assessments. Yet defendants contend that they were lying. If they were indeed lying, then they can’t be convicted under § 1341, even though the convictions under § 666 are valid.

The definition of “bribery” in the instructions allowed the jury to bypass the question whether Hawkins and Racasi were scamming Haleem rather than Cook County. The error therefore cannot be called harmless, and defendants are entitled to a new trial of the mail-fraud charges.

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