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UNITED STATES COURT of APPEALS No. 11-3853 BRIEF AND

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UNITED STATES COURT of APPEALS No. 11-3853 BRIEF AND Case: 11-3853 Document: 99 Filed: 11/12/2013 Pages: 169 In the UNITED STATES COURT OF APPEALS for the Seventh Circuit No. 11-3853 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROD BLAGOJEVICH, Defendant-Appellant. On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 CR 888 — James B. Zagel, Judge. BRIEF AND APPENDIX OF THE UNITED STATES GARY S. SHAPIRO Attorney for the United States, Acting Under Authority Conferred by 28 U.S.C. § 515 219 South Dearborn Street, 5th Floor Chicago, Illinois 60604 (312) 353-5300 MARK E. SCHNEIDER Assistant United States Attorney Chief of Appeals, Criminal Division DEBRA RIGGS BONAMICI Assistant United States Attorney Case: 11-3853 Document: 99 Filed: 11/12/2013 Pages: 169 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................... iv JURISDICTIONAL STATEMENT ..................................................................... 1 ISSUES PRESENTED FOR REVIEW ............................................................... 2 STATEMENT OF THE CASE ............................................................................ 3 STATEMENT OF FACTS ................................................................................... 6 SUMMARY OF ARGUMENT ........................................................................... 33 ARGUMENT ...................................................................................................... 35 I. The Jury’s Verdicts of Guilty Were Supported by Abundant Evidence. ............................................................................................. 35 A. Standard of Review ........................................................................ 35 B. Analysis .......................................................................................... 36 1. Appointment of Valerie Jarrett as Senator ............................. 36 2. The Appointment of Jesse Jackson, Jr. as Senator ................ 44 3. Exchange of Medicare Rate Increase for Campaign Contributions ............................................................................ 47 4. Exchange of Racing Bill for Campaign Contributions ............ 48 II. The Jury Was Properly Instructed Regarding the Elements of Extortion. ............................................................................................. 50 A. Standard of Review ........................................................................ 50 B. Analysis .......................................................................................... 52 1. Meaning of “Property,” as Used in the Hobbs Act .................. 52 2. Proof of Illegal Exchange .......................................................... 55 i Case: 11-3853 Document: 99 Filed: 11/12/2013 Pages: 169 3. The Challenged Instructions Were Not Improperly “Exploited.” ................................................................................ 58 III. The District Court Did Not Abuse Its Discretion in Excluding Certain Testimony of the Defendant and Instructing the Jury Regarding Good Faith. ........................................................................ 59 A. Standard of Review ........................................................................ 59 B. Background .................................................................................... 59 C. Analysis .......................................................................................... 68 1. Exclusion of Evidence ............................................................... 68 2. Instruction ................................................................................. 74 IV. The District Court Did Not Abuse Its Discretion in Imposing Limits on the Defendant’s Cross-Examination of Witnesses. .......... 76 A. Standard of Review ........................................................................ 76 B. Analysis .......................................................................................... 77 1. Cross-Examination of Monk ..................................................... 78 2. Cross-Examination of Wyma .................................................... 81 3. Cross-Examination of Magoon and Johnston ......................... 83 4. Rulings Regarding the Government’s Cross- Examination .............................................................................. 85 V. There Was No Abuse of Discretion in the District Court’s Evidentiary Rulings. ........................................................................... 89 A. Standard of Review ........................................................................ 89 B. Analysis .......................................................................................... 90 1. Testimony Regarding Recordings ............................................ 90 2. Recorded Conversations Offered by the Defense .................... 92 ii Case: 11-3853 Document: 99 Filed: 11/12/2013 Pages: 169 VI. Blagojevich’s False Statement Conviction Should Be Affirmed. ..... 97 A. Standard of Review ........................................................................ 97 B. Background .................................................................................... 98 C. Analysis .......................................................................................... 99 1. The Charged Statement Was Not Fundamentally Ambiguous. .............................................................................. 100 2. Overwhelming Evidence Showed that the Charged Statement Was False, and Defendant Knew It. ................... 101 3. Blagojevich Was Not Improperly Precluded from Contesting Materiality. .......................................................... 104 VII. The District Court Did Not Abuse its Discretion in Declining to Strike Juror 174. ........................................................................... 106 A. Standard of Review ...................................................................... 106 B. Analysis ........................................................................................ 106 VIII. The District Court Correctly Determined the Defendant’s Advisory Guidelines Range and Any Error Was Harmless. ........... 110 A. Standard of Review ...................................................................... 110 B. Background .................................................................................. 110 C. Analysis ........................................................................................ 111 1. The District Court Correctly Determined that the Value of the Benefit Defendant Sought to Obtain from the Offenses. .................................................................................. 111 2. The District Court Correctly Determined that Defendant Acted as a Leader and Organizer. ......................................... 113 3. Any Error in Calculating the Advisory Range Was Harmless. ................................................................................ 115 CONCLUSION ................................................................................................. 118 iii Case: 11-3853 Document: 99 Filed: 11/12/2013 Pages: 169 TABLE OF AUTHORITIES CASES Bronston v. United States, 409 U.S. 353 (1973) ............................................. 103 Chambers v. Mississippi, 410 U.S. 284 (1973) ................................................. 69 Cheek v. United States, 498 U.S. 192 (1991) ........................................ 64, 65, 70 Delaware v. Fensterer, 474 U.S. 15 (1985) ........................................................ 77 Delaware v. Van Arsdall, 475 U.S. 673 (1986) ................................................. 77 Evans v. United States, 504 U.S. 255 (1992) ........................................ 44, 56, 57 Griffin v. Bell, 694 F.3d 817 (7th Cir. 2012) ................................... 106, 107, 110 Irvin v. Dowd, 366 U.S. 717 (1961) ................................................................. 106 McCormick v. United States, 500 U.S. 257 (1991) ..................................... 55, 56 Neder v. United States, 527 U.S. 1 (1999) ........................................................ 51 Nevada v. Jackson, —U.S.—, 133 S.Ct. (1990) .......................................... 68, 92 Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004) ......................................... 106 Patton v. Yount, 467 U.S. 1025 (1984) ............................................................ 107 Rock v. Arkansas, 483 U.S. 44 (1987) ............................................................... 69 Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) .... 52 Scrushy v. United States, 130 S. Ct. 3541 (2010) ............................................. 56 Sekhar v. United States, — U.S. —, 133 S.Ct. 2720 (2013) ............................. 52 Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896 (2010) ...... 39, 106, 110 Taylor v. Illinois, 484 U.S. 400 (1988) .............................................................. 68 Thompson v. Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001) ..................... 110 United States v. Abbas, 560 F.3d 660 (7th Cir. 2009) .................................... 117 iv Case: 11-3853 Document: 99 Filed: 11/12/2013 Pages: 169 United States v. Allen, 605 F.3d 461 (7th Cir. 2010) ............................. 107, 110 United States v. Brown, 726 F.3d 993 (7th Cir. 2013) ..................................... 51 United States v. Bryant, 655 F.3d 232 (3d Cir. 2011) .....................................
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