McClain Et Al Motion To Dismiss

Case: 1:20-cr-00812 Document #: 46 Filed: 06/01/21 Page 1 of 48 PageID #:213
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )

)
v. ) No. 20 CR 812
)
MICHAEL McCLAIN, et al. ) Honorable Harry D. Leinenweber
)
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ JOINT MOTION TO

DISMISS COUNTS TWO, FIVE, SIX, AND EIGHT AND TO PARTIALLY DISMISS
COUNT ONE OF THE INDICTMENT
TABLE OF CONTENTS
INTRODUCTION................................................................................................................... 1
THE INDICTMENT................................................................................................................ 2
I. Count One: The Conspiracy Count. ................................................................... 3
II. Counts Two, Five, Six, and Eight: The Bribery Counts....................................... 4
LEGAL STANDARD ............................................................................................................. 5
ARGUMENT .......................................................................................................................... 6
I. The Counts Alleging Bribery and Conspiracy to Commit Bribery Must Be

Dismissed for Failure to Allege a Quid Pro Quo. ............................................... 6
A. A Quid Pro Quo Is an Essential Element of a Bribery Charge under

18 U.S.C. § 666. ........................................................................................... 6
B. The Indictment Fails to Allege a Quid Pro Quo............................................ 15
II. Charges Based on a Gratuity Theory Also Must Be Dismissed. ........................ 20
A. The Structure and History of the Statute Make Clear That a Quid Pro Quo
Is an Essential Element of Any Section 666 Charge. .................................... 20
B. The Counts Based on an Intent-to-Reward Theory Must Also Be

Dismissed for Failure to Allege a Connection Between the Gratuity and an
Action by Public Official A......................................................................... 22
III. Without a Quid Pro Quo Requirement, 18 U.S.C. § 666 Is

Unconstitutionally Vague. ............................................................................... 24
IV. The Court Should Apply the Rule of Lenity to Dismiss the Bribery and
Conspiracy Counts. ......................................................................................... 29
V. Alternatively, the Bribery Counts Must Be Dismissed as Duplicitous................ 30
VI. Counts Two and Five Must Be Dismissed in Their Entirety and
Count One Must Be Dismissed in Part Because the Alleged Bribes Were
Bona Fide Salaries Subject to the Section 666(c) Exemption. ........................... 32
CONCLUSION ..................................................................................................................... 38
ii
TABLE OF AUTHORITIES
Cases Page(s)
Am. Civil Liberties Union of Illinois v. White,

692 F. Supp. 2d 986 (N.D. Ill. 2010)................................................................................. 13
U.S. ex rel. Brito v. Atchison,

Case No. 11-CV-6792, 2013 WL 140841 (N.D. Ill. Jan. 10, 2013)
(Leinenweber, J.) ............................................................................................................. 29
Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010)....................................................................................................17, 29
Colautti v. Franklin,
439 U.S. 379 (1979)......................................................................................................... 25
Evans v. United States,

504 U.S. 255 (1992)......................................................................................................... 12
Hamling v. United States,

418 U.S. 87 (1974)............................................................................................................. 5
Kelly v. United States,

140 S. Ct. 1565 (2020)....................................................................................................... 1
Kolender v. Lawson,
461 U.S. 352 (1983)......................................................................................................... 24
McCormick v. United States,

500 U.S. 257 (1991).............................................................................................. 12, 13, 14
McDonnell v. United States,

136 S. Ct. 2355 (2016)...............................................................................................passim
Russell v. United States,

369 U.S. 749 (1962)....................................................................................................33, 34
Sabri v. United States,

541 U.S. 600 (2004)........................................................................................................... 9
Salinas v. United States,

522 U.S. 52 (1997)............................................................................................................. 9
Shaw v. United States,

137 S. Ct. 462 (2019)....................................................................................................... 29
iii
Skilling v. United States,

561 U.S. 358 (2010)................................................................................................ 1, 25, 27
Sorich v. United States,

129 S. Ct. 1308 (2009) (Scalia, J.) .................................................................................... 26
United States v. Agostino,

132 F.3d 1183 (7th Cir. 1997) .....................................................................................10, 11
United States v. Allen,

10 F.3d 405 (7th Cir. 1993) ............................................................................... 6, 12, 13, 17
United States v. Anderson,

280 F.3d 1121 (7th Cir. 2002) .....................................................................................19, 34
United States v. Anderson,

517 F.3d 953 (7th Cir. 2008) .......................................................................................21, 31
United States v. Arthur,

544 F.2d 730 (4th Cir. 1976) .........................................................................................6, 17
United States v. Berardi,

675 F.2d 894 (7th Cir. 1982) ............................................................................................ 31
United States v. Blagojevich,

794 F.3d 729 (7th Cir. 2015) ................................................................................. 14, 33, 37
United States v. Boender,

649 F.3d 650 (7th Cir. 2011) ................................................................................. 10, 11, 12
United States v. Buchmeier,

255 F.3d 415 (7th Cir. 2001) ............................................................................................ 31
United States v. Davis,

471 F.3d 783 (7th Cir. 2006) ............................................................................................ 31
United States v. Donagher,

Case No. 19-CR-240, 2021 WL 663181 (N.D. Ill. Feb. 19, 2021).................................11, 12
United States v. Fernandez,

722 F.3d 1 (1st Cir. 2013) ..................................................................................... 20, 21, 22
United States v. Ganim,

510 F.3d 134 (2d Cir. 2007) ............................................................................................. 15
United States v. Gee,

432 F.3d 713 (7th Cir. 2005) ............................................................................................ 11
iv
United States v. Giles,

246 F.3d 966 (7th Cir. 2001) ............................................................................................ 12
United States v. Hawkins,

777 F.3d 880 (7th Cir. 2015) ................................................................................. 14, 20, 31
United States v. J. Murray Hooker,

841 F.2d 1225 (4th Cir. 1988) .......................................................................................... 33
United States v. Hughes,

310 F.3d 557 (7th Cir. 2002) .......................................................................................31, 32
United States v. Hurtgen,

Case No. 05-CR-408, 2007 WL 869558 (N.D. Ill. Mar. 20, 2007) (Grady, J.) .................... 35
United States v. Jackson,

926 F. Supp. 2d 691 (E.D.N.C. 2013) ............................................................................... 34
United States v. Jarigese,

Case No. 17-CR-656-2 (N.D. Ill. May 16, 2019)............................................................... 11
United States v. Jennings,

160 F.3d 1006 (4th Cir. 1998) ........................................................................... 6, 15, 17, 21
United States v. Mann,

172 F.3d 50 (6th Cir. 1999) .............................................................................................. 33
United States v. Mariano,

983 F.2d 1150 (1st Cir. 1993)........................................................................................... 15
United States v. Clarence McClain,

934 F.2d 822 (7th Cir. 1991) ............................................................................................ 13
United States v. Medley,

913 F.2d 1248 (7th Cir. 1990) .....................................................................................11, 14
United States v. Mills,

140 F.3d 630 (6th Cir. 1998) .......................................................................................33, 37
United States v. Mullins,

800 F.3d 866 (7th Cir. 2015) ................................................................................. 10, 11, 12
United States v. Outler,

659 F.2d 1306 (5th Cir. 1981) .......................................................................................... 33
United States v. Pansier,

576 F.3d 726 (7th Cir. 2009) ............................................................................................ 31
v
United States v. Peleti,

576 F.3d 377 (7th Cir. 2009) .............................................................................................. 8
United States v. Petty,

132 F.3d 373 (7th Cir. 1997) ............................................................................................ 34
United States v. Pirro,

212 F.3d 86 (2d Cir. 2000) ............................................................................................... 19
United States v. Redzic,

627 F.3d 683 (8th Cir. 2010) ............................................................................................ 15
United States v. Resendiz-Ponce,

549 U.S. 102 (2007).......................................................................................... 6, 15, 19, 22
United States v. Risk,

843 F.2d 1059 (7th Cir. 1988) ......................................................................... 34, 35, 37, 38
United States v. Robinson,

663 F.3d 265 (7th Cir. 2011) .......................................................................................32, 37
United States v. Roya,

574 F.2d 386 (7th Cir. 1978) ............................................................................................ 33
United States v. Silver,

948 F.3d 538 (2d Cir. 2020) .................................................................................. 18, 19, 28
United States v. Sun-Diamond Growers of Cal.,

526 U.S. 398 (1999)...................................................................................................passim
United States v. Tamras-Martin,

Case No. 18-CR-267-2 (N.D. Ill. Feb. 17, 2019) .................................................... 10, 23, 31
United States v. Thompson,

484 F.3d 877 (7th Cir. 2007) ................................................................................. 12, 25, 26
United States v. Tomkins,

Case No. 07-CR-227, 2009 WL 590237 (N.D. Ill. Mar. 6, 2009) (Lindberg, J.).................. 34
United States v. Vaughn,

722 F.3d 918 (7th Cir. 2013) .............................................................................................. 5
United States v. White,

610 F.3d 956 (7th Cir. 2010) .............................................................................................. 5
vi
Statutes
18 U.S.C. § 201 ....................................................................................................................7, 8
18 U.S.C. § 666 ...............................................................................................................passim
Other Authorities
7th Cir. Crim. Pattern Jury Instr. and Committee Comment, 18 U.S.C. § 666(c) ...................... 32
CNN Business, How Abraham Lincoln Tried to Get Someone a Job,

https://money.cnn.com/2016/02/12/news/economy/abraham-lincoln-letter-us-
trust/index.html................................................................................................................ 27
Fed. R. Crim. P. 12 .............................................................................................................5, 35
S. Rep. No. 98-225 (1983) ....................................................................................................... 9
vii
Defendants Michael McClain, Anne Pramaggiore, John Hooker, and Jay Doherty
(collectively, “Defendants”) respectfully submit this Memorandum of Law in support of their
Joint Motion to Dismiss Counts Two, Five, Six, and Eight and to Partially Dismiss Count One of
the Indictment.
INTRODUCTION
Over the past several decades, the Supreme Court has uniformly curtailed the reach of
vague and overbroad public corruption statutes. At every opportunity, the Court has rebuffed
attempts to criminalize innocent conduct. See, e.g., Kelly v. United States, 140 S. Ct. 1565
(2020); McDonnell v. United States, 136 S. Ct. 2355 (2016); Skilling v. United States, 561 U.S.
358 (2010); United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999). In bringing
this indictment, the government attempts to buck this trend and criminalize conduct that has long
been legal and that is utterly routine—hiring someone at the recommendation and request of a
public official. The government does not allege any connection between the jobs and any actions
by the public official. This failure to allege a quid pro quo in this prosecution under a federal
anti-bribery statute applicable to state officials, 18 U.S.C. § 666 (“Section 666”), runs contrary to
the text of the statute, to the legislative history, and decisions of the Supreme Court, the Seventh
Circuit, and other courts in this district. Adopting the government’s view would put huge
numbers of American citizens at risk of prosecution for their ordinary participation in the
political process. This Court should find that the government must allege a quid pro quo to bring
an indictment for bribery under Section 666 and dismiss Counts Two, Five, Six, and Eight of this
indictment, and partially dismiss Count One of this indictment to the extent that the conspiracy
count is based on a bribery violation of Section 666. The Court should also find that Section 666
does not criminalize gratuity offenses, or alternatively find that the indictment fails to allege an
element of a gratuity offense by failing to allege a connection between any benefit provided to
1
Public Official A and any action he took. If the Court finds that no quid pro quo is required for
bribery offenses, it should find Section 666 unconstitutionally vague and dismiss the indictment
on that ground. Alternatively, if the Court finds Section 666 ambiguous as to whether a quid pro
quo is required, the Court should apply the rule of lenity and dismiss the indictment.
In addition, and independently, Counts Two and Five of the indictment must be
dismissed and Count One must be dismissed in part for failure to allege that the salaries, wages,
fees, or other compensation that were the supposed things of value offered to corruptly influence
or reward Public Official A were not bona fide or in the usual course of business. 18 U.S.C.
§ 666(c). These counts must also be dismissed because the undisputed facts make clear that the
conduct alleged is expressly excluded from the prohibitions of Section 666. The plain language
of the statute provides that bona fide compensation cannot be a “thing of value” given to
influence or reward a public official. 18 U.S.C. § 666(c). The undisputed allegations of the
indictment are that the individuals and entities on whose hiring Counts Two and Five (and Count
One, in part) are based actually performed the jobs that they were hired to do. So, the
compensation paid to them is bona fide and cannot possibly give rise to conduct criminalized
under Section 666.
THE INDICTMENT
On November 18, 2020, Defendants 1 were charged in a nine-count indictment based on
an alleged conspiracy by certain former employees and consultants of Commonwealth Edison
Company (“ComEd”) to improperly influence and reward Public Official A, the Speaker of the
1Defendant Michael McClain is a former ComEd lobbyist and consultant for ComEd; Defendant Anne
Pramaggiore was the chief executive officer of ComEd and served as a senior executive at an affiliate of
Exelon; Defendant John Hooker was ComEd’s executive vice president of legislative and external affairs
who later served as a lobbyist for ComEd; and Defendant Jay Doherty owns Jay D. Doherty & Associates
(“JDDA”), which performed consulting services for ComEd. (Indictment at 9–10, ¶ 1(v)–(w), (x), (z).)
2
Illinois House of Representatives, between 2011 and 2019.2 Five of the nine counts in the
indictment are based wholly or in part on the federal programs bribery statute, 18 U.S.C. § 666,
which criminalizes, inter alia, “corruptly giv[ing] . . . anything of value . . . with intent to
influence or reward” an agent of a State government “in connection with any business,
transaction, or series of transactions of such . . . government . . . involving anything of value of
$5,000 or more.” 18 U.S.C. § 666(a)(2). Specifically, Counts Two, Five, Six, Eight (the Bribery
Counts) and Count One (the Conspiracy Count), in part, each allege that Defendants violated 18
U.S.C. § 666(a)(2) by corruptly giving a thing of value—namely, jobs and contracts—to political
allies of Public Official A with the intent to “influence and reward” Public Official A in
connection with the passage of legislation affecting ComEd. (Indictment at 11–12, ¶ 2; 43, ¶ 2;
46, ¶ 2; 47, ¶ 2; 49, ¶ 2.)
I. Count One: The Conspiracy Count.
Count One alleges that Defendants conspired with each other and others to violate 18
U.S.C. § 666 and the books-and-records provisions of the Foreign Corrupt Practices Act between
2011 and 2019. (Indictment at 11–12, ¶ 2; 42, ¶ 28(mm) (alleging violations of 18 U.S.C. § 371
and § 2).) As alleged in the indictment, the purpose of the conspiracy was to influence and
reward Public Official A in connection with legislation affecting ComEd and its business. (Id.)
The indictment identifies certain legislation it alleges positively impacted ComEd between 2011
and 2019: (1) the Energy Infrastructure and Modernization Act (EIMA), passed in 2011;
(2) Senate Bill 9, passed in 2013; and (3) the Future Energy Jobs Act (FEJA), passed in 2016.
(Id. at 7, ¶ 1(o)–(q).) The indictment does not allege what actions Public Official A took with
2The remaining four counts allege violations of the books-and-records provisions of the Foreign Corrupt
Practices Act.
3
respect to EIMA, Senate Bill 9, or FEJA, but rather alleges generally that Public Official A “was
able to exercise control over what measures were called for a vote in the House of
Representatives” and “also exercised substantial influence over fellow lawmakers.” (Id. at 9,
¶ 1(u).) Central to the conspiracy charge are allegations that Defendants “arranged for various
associates of Public Official A, including Public Official A’s political allies and individuals who
performed political work for Public Official A, to obtain jobs, contracts, and monetary payments
associated with those jobs and contracts from ComEd and its affiliates, even in instances where
such associates performed little or no work that they were purportedly hired to perform for
ComEd.” (Id. at 12–13, ¶ 3.)
II. Counts Two, Five, Six, and Eight: The Bribery Counts.
Premised on the same underlying conduct described in the Conspiracy Count, each of the
substantive Section 666 counts (Counts Two, Five, Six, and Eight) alleges that some or all of the
Defendants corruptly gave certain contracts and associated monetary payments to affiliates of
Public Official A “with intent to influence and reward Public Official A” in connection with
“legislation affecting ComEd and its business.” (Id. at 43, ¶ 2; 46, ¶ 2; 47, ¶ 2; 49, ¶ 2.)
Only Defendants McClain and Pramaggiore are charged in Counts Two, Five, and Six of
the indictment. Count Two alleges that, “[i]n or around December 2016,” Defendants McClain
and Pramaggiore corruptly offered and agreed to give a contract and associated monetary
payments to Law Firm A with intent to “influence and reward” Public Official A in connection
with “legislation affecting ComEd and its business.” (Id. at 43, ¶ 2.) Count Five alleges that
“[b]etween in or around 2018 and in or around April 2019,” Defendants McClain and
Pramaggiore corruptly offered and agreed to give a position on the ComEd board of directors
and monetary payments associated with such position to Individual BM-1 with intent to
“influence and reward” Public Official A in connection with “legislation affecting ComEd and
4
its business.” (Id. at 46, ¶ 2.) And Count Six alleges that Defendants McClain and Pramaggiore,
in or around May 2018, corruptly offered and agreed to give $5,000 per month to Individual
23W-1 with intent to influence and reward Public Official A. (Id. at 47, ¶ 2.)
All Defendants are charged in Count Eight, which alleges that, between January 2019 and
March 11, 2019, Defendants corruptly offered and agreed to give a new annual contract to
Defendant Doherty’s company, JDDA, and associated monetary payments for the benefit of
Public Official A and his associates: two individuals associated with the Thirteenth Ward
(Individual 13W-1 and Individual 13W-2) and one individual associated with the Twenty-Third
Ward (Individual 23W-1), another city ward within Public Official A’s House district. (Id. at 9,
¶ 1(u); 11, ¶ 1(aa)–(bb), (dd); 49, ¶ 2.) Count Eight alleges that JDDA’s contract and the
associated payments to Individual 13W-1, Individual 13W-2, and Individual 23W-1 were given
with “intent to influence and reward” Public Official A in connection with “legislation affecting
ComEd and its business.” (Id. at 49, ¶ 2.)
LEGAL STANDARD
An indictment must be dismissed if it fails to state an offense. Fed. R. Crim. P.
12(b)(3)(B)(v). To be legally sufficient, an indictment must “(1) state[ ] all the elements of the
crime charged; (2) adequately inform[ ] the defendant of the nature of the charges so that he may
prepare a defense; and (3) allow[ ] the defendant to plead the judgment as a bar to any future
prosecutions.” United States v. White, 610 F.3d 956, 958 (7th Cir. 2010); see also United States
v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2013). “It is generally sufficient that an indictment set
forth the offense in the words of the statute itself, as long as those words of themselves fully,
directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary
to constitute the offence intended to be punished.” Hamling v. United States, 418 U.S. 87, 117
(1974) (internal quotation marks omitted). But where the statutory language itself fails to set
5
forth the essential elements of the offense, the indictment must charge crimes with “greater
specificity” in order to “provide fair notice to defendants and to ensure that any conviction would
arise out of the theory of guilt presented to the grand jury.” United States v. Resendiz-Ponce,
549 U.S. 102, 109–10 (2007).
ARGUMENT
I. The Counts Alleging Bribery and Conspiracy to Commit Bribery Must Be

Dismissed for Failure to Allege a Quid Pro Quo.
A. A Quid Pro Quo Is an Essential Element of a Bribery Charge under 18 U.S.C.

§ 666.
It is the clear and unanimous directive of the Supreme Court that it is not a crime to give
something to a public official “to build a reservoir of goodwill that might ultimately affect one or
more of a multitude of unspecified acts, now and in the future.” Sun-Diamond, 526 U.S. at 405.3
To avoid sweeping this innocent conduct into the ambit of federal anti-bribery statutes, the Court
has required the government to identify a quid pro quo—that is, an intent that the public official
perform an official act in exchange for something of value—in charging bribery offenses.
McDonnell, 136 S. Ct. at 2371–72; Sun-Diamond, 526 U.S. at 404–06. The government
contends that it can sustain a bribery charge under Section 666 without alleging a quid pro quo—
that is, that Defendants intended to engage in an agreement with Public Official A pursuant to
which Defendants provided a thing of value to Public Official A in exchange for him doing
something specific benefitting ComEd or refraining from doing something specific that would
3 See also United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) (quoting United States v.
Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980) (“[A] good will gift to an official to foster a favorable
business climate, given simply with the ‘generalized hope or expectation of ultimate benefit on the part of
the donor,’ does not constitute a bribe.”); United States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993) (“Vague
expectations of some future benefit should not be sufficient to make a payment a bribe.”); United States v.
Arthur, 544 F.2d 730, 734 (4th Cir. 1976) (criminal intent required to commit bribery “is not supplied
merely by the fact that the gift was motivated by some generalized hope or expectation of ultimate benefit
on the part of the donor.”).
6
harm ComEd. Defendants contend that such a quid pro quo is required to sustain a bribery
charge under Section 666. The text of the statute, legislative history, and controlling Supreme
Court and Seventh Circuit precedent all support Defendants’ position.
Statutory Text. In relevant part, Section 666 4 provides:
(a) Whoever, if the circumstance described in subsection (b) of this section exists—
. ..
(2) corruptly gives, offers, or agrees to give anything of value to any person, with
intent to influence or reward an agent of an organization or of a State, local or
Indian tribal government, or any agency thereof, in connection with any
business, transaction, or series of transactions of such organization,
government, or agency involving anything of value of $5,000 or more;
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the
organization, government, or agency receives, in any one year period, benefits
in excess of $10,000 under a Federal program involving a grant, contract,
subsidy, loan, guarantee, insurance, or other form of Federal assistance.
(c) This section does not apply to bona fide salary, wages, fees, or other
compensation paid, or expenses paid or reimbursed, in the usual course of
business.
18 U.S.C. § 666. Section 666’s language closely mirrors the anti-bribery statute applicable to
federal officials, enacted prior to Section 666, which provides that whoever “corruptly gives,
offers or promises anything of value to any public official[5] . . . with intent to influence any
official act” commits bribery. 18 U.S.C. § 201(b) (“Section 201(b)”).
4The Conspiracy Count also alleges that Defendants conspired to violate Section 666(a)(1)(B)—which
criminalizes receipt of anything of value with the intent to be influenced or rewarded. (Indictment at 11–
12, ¶ 2(a).) The analysis applicable to payment of bribes applies in equal force to the provisions
prohibiting receipt of bribes.
5Section 201 defines “public official” to mean any “Member of Congress, Delegate, or Resident
Commissioner, either before or after such official has qualified, or an officer or employee or person acting
for or on behalf of the United States, or any department, agency or branch of Government thereof,
7
The statutes apply to different groups of people—Section 201(b) applies to federal
officials, while Section 666 applies to state, local, and tribal officials and agents of
nongovernmental recipients of federal program funds. This difference in applicability required
some changes to the statutory language. For example, because agents of nongovernmental
organizations do not perform “official acts,” the phrase “official act” present in Section 201(b)
could not be copied directly into Section 666. That phrase was therefore replaced with “in
connection with any business, transaction, or series of transactions of such organization,
government, or agency involving anything of value of $5,000 or more.”6 18 U.S.C. § 666(a)(2).
But these modifications do not touch the core elements of the crime of bribery prohibited by both
statutes—a corrupt gift or offer of a thing of value, with intent to influence the recipient—which
are the same in both statutes.
There can be no doubt that a bribery conviction under Section 201(b) requires a quid pro
quo. In construing Section 201(b), the Supreme Court held that “for bribery there must be a quid
pro quo—a specific intent to give or receive something of value in exchange for an official act.”
Sun-Diamond, 526 U.S. at 404–05; see also United States v. Peleti, 576 F.3d 377, 383–84 (7th
Cir. 2009) (same). Finding that the same language gives rise to a quid pro quo requirement for
bribery under Section 201(b) but not for bribery under Section 666 would be absurd. The Court
should construe these identical provisions consistently and find that a quid pro quo is required
for bribery under Section 666.
including the District of Columbia, in any official function, under or by authority of any such department,
agency, or branch of Government.” See 18.U.S.C. § 201(a)(1).
6Section 666 also proscribes corruptly giving, offering, or agreeing to give any thing of value to any
person with intent to “reward” an individual covered by the statute. Section II, infra, discusses that
provision.
8
Legislative History. The legislative history related to the enactment of Section 666
confirms that Congress intended that statute to extend Section 201(b)’s applicability, not to
eliminate the quid pro quo requirement. In the report accompanying the bill that was ultimately
enacted and codified as Section 666, the Senate Judiciary Committee noted that while
Section 201 “generally punishes corrupt payments to federal public officials,” there was “some
doubt as to whether or under what circumstances persons not employed by the federal
government may be considered as a ‘public official’” under that law. S. Rep. No. 98-225, at 369
(1983). The report observed that “the Courts of Appeals have divided on the question whether a
person employed by a private organization receiving federal monies pursuant to a program is a
‘public official’ for purposes of Section 201.” Id. Congress effectively resolved that circuit split
by enacting a new statute extending the federal anti-bribery statute to cover state and local
officials and others administering federal funds. The legislative record includes no indication
that Congress intended to relax or modify the quid pro quo requirement inherent in Section
201(b) for bribery cases brought under Section 666, and this Court should decline to find that it
did relax that requirement for such cases.
Case Law. The Supreme Court has repeatedly confirmed that Section 666 should be
understood as an extension of Section 201(b) to cover bribery of state and local officials. It has
recognized that Section 666 “was designed to extend federal bribery prohibitions to bribes
offered to state and local officials employed by agencies receiving federal funds.” Sabri v.
United States, 541 U.S. 600, 607 (2004) (internal quotation marks omitted); see also Salinas v.
United States, 522 U.S. 52, 58 (1997) (Section 666 “was designed to extend federal bribery
prohibitions to bribes offered to state and local officials employed by agencies receiving federal
9
funds.”). It has never held that the quid pro quo requirement present in Section 201(b) is absent
from Section 666.
Despite some ambiguity in the Seventh Circuit’s interpretation of Section 666, a careful
reading of the court’s precedent demonstrates that the charges based on an intent-to-influence
theory must allege a quid pro quo. The government will doubtless point to language in Seventh
Circuit opinions stating in generalized terms that a quid pro quo is not required under
Section 666. But, as Judge Edmond Chang recently explained in United States v. Tamras-
Martin, a careful look at those cases illustrates a critical difference between charges of bribery
under Section 666—which require a quid pro quo—and charges based on a gratuity theory.
Order on Jury Instructions (“Order”) at 4–6, United States v. Tamras-Martin, Case No. 18-CR-
267-2 (N.D. Ill. Feb. 17, 2019), ECF No. 63 (attached hereto as Exhibit A). In each case in
which the Seventh Circuit said no quid pro quo was required, the government pursued both an
intent-to-influence (bribery) and an intent-to-reward (gratuity) theory. Id. at 4; see also United
States v. Mullins, 800 F.3d 866, 871 (7th Cir. 2015); United States v. Boender, 649 F.3d 650, 654
(7th Cir. 2011); United States v. Agostino, 132 F.3d 1183, 1190 (7th Cir. 1997). Those cases did
not “expressly grapple” with whether a quid pro quo is required for charges based on an intent-
to-influence theory alone. Order at 4, Tamras-Martin, Case No. 18-CR-267-2. When charges
are being brought under Section 666 on a bribery theory, Judge Chang reasoned that the statutory
language—“corruptly with intent to influence”—so closely mirrors the language of Section 201
that there is no basis to interpret it any differently, and thus the same quid pro quo requirement
applies in bribery prosecutions under Section 666 as applies in bribery prosecutions under
Section 201(b). Id. The court thus included a quid pro quo requirement in the jury instructions,
providing that a defendant “acts corruptly with an intent to influence an agent . . . when that
10
person acts with the intent that the agent perform an official act in exchange for something of
value.” Id. at 6 (emphasis added). A similar jury instruction was adopted by Judge Robert
Gettleman in United States v. Jarigese. See Jury Instructions at 38, United States v. Jarigese,
Case No. 17-CR-656-2 (N.D. Ill. May 16, 2019), ECF No. 131 (attached hereto as Exhibit B).
In a recent decision, Judge John Lee broke from the other decisions in the Northern
District of Illinois to conclude that no quid pro quo is required to plead a violation of Section 666
that is not based on campaign contributions. United States v. Donagher, Case No. 19-CR-240,
2021 WL 663181, at *7–9 (N.D. Ill. Feb. 19, 2021). In Donagher, Judge Lee felt “constrained to
read the appellate court’s controlling cases to hold that” no quid pro quo was required. Id. at *9
(noting that the court “might be inclined to reach a different result were it writing on a blank
slate”). In Donagher, the court relies heavily on the Seventh Circuit’s Agostino decision—a case
that pre-dated Sun-Diamond—which “declin[ed] to import an additional, specific quid pro quo
requirement into the statutory elements.”7 Id. at *7 (quoting Agostino, 132 F.3d at 1190)
(internal quotation marks omitted). But the Seventh Circuit’s vague statements that a quid pro
quo is not necessary—like the one in Agostino on which the Donagher court relies—are dicta
because there was a quid pro quo identified in each such case. See United States v. Gee, 432
F.3d 713, 714 (7th Cir. 2005) (holding kickbacks were paid for “assistance in directing the
welfare-program-management contracts to [defendant] and preventing the state from auditing
[defendant’s] performance”); Agostino, 132 F.3d at 1187 (affirming conviction when money was
offered shortly after payee objected to favoritism toward a particular contractor); Boender, 649
7 Agostino also distinguishes United States v. Medley, 913 F.2d 1248 (7th Cir. 1990), on the basis that it
“involved a violation of 666(a)(1)(B), which criminalizes the receipt of a bribe,” versus Section
666(a)(2), which criminalizes the offer of a bribe. Agostino, 132 F.3d at 1190. As Judge Lee recognized
in Donagher, “the court did not explain why parallel language in these parallel provisions warrants
dissimilar interpretation.” 2021 WL 663181, at *8 n.4.
11
F.3d at 651 (identifying several actions taken by the public official for the payor’s benefit in
exchange for bribes); Mullins, 800 F.3d at 871 (stating that vendors “did receive something [in
return for kickbacks paid to a county official]—their contracts”). And to the extent the court has
confronted cases without any clear return benefit, the Seventh Circuit has declined to uphold
such convictions. See United States v. Thompson, 484 F.3d 877, 878–84 (7th Cir. 2007).
Although the Donagher court drew a distinction between charges under Section 666 that
involve campaign contributions and those that do not, the relevant authority further supports the
need to allege and prove a quid pro quo in general. See Donagher, 2021 WL 663181, at *3–5
(citing McCormick v. United States, 500 U.S. 257 (1991)). In McCormick, the Supreme Court
cautioned against criminalizing solicitation of campaign contributions, raising concerns that it
“would open to prosecution not only conduct that has long been thought to be well within the
law but also conduct that in a very real sense is unavoidable . . . .” 500 U.S. at 272.
Accordingly, the Supreme Court required an explicit quid pro quo for extortion charges based on
campaign contributions. Id. at 273–74. As the Donagher court recognized, the Supreme Court
did not tie these concerns to the particular text or structure of the extortion statute. Donagher,
2021 WL 663181, at *4. “Instead, what animated the Court’s analysis was concern about
criminalizing everyday interactions between politicians and their constituents.” Id. The
following year, the Supreme Court concluded that all prosecutions under the extortion statute
require proof of a quid pro quo, though not necessarily an explicit one. Evans v. United States,
504 U.S. 255, 268 (1992); see also United States v. Giles, 246 F.3d 966, 972 (7th Cir. 2001)
(concluding that Evans “lend[s] support to an inference that the quid pro quo requirement applies
in all extortion prosecutions under the Hobbs Act” and “join[ing] the circuits that require a quid
pro quo showing in all cases”). The Supreme Court’s reasoning must apply in equal force to
12
charges of bribery. “[E]xtortion ‘under color of official right’ and bribery are really different
sides of the same coin.” Allen, 10 F.3d at 411 (“[I]t would seem that courts should exercise the
same restraint in interpreting [the scope of] bribery statutes as the McCormick Court did in
interpreting the Hobbs Act . . . .”).
Moreover, the concerns that animated the Supreme Court in McCormick are also present
here—where a highly regulated industry hires lobbyists or other individuals at the
recommendation or request of legislators. As the Seventh Circuit has recognized, “‘influence-
peddling’ has become a wide-spread (albeit not universally commended) art form at both the
local and national level.” United States v. Clarence McClain, 934 F.2d 822, 830–31 (7th Cir.
1991). Recommendations or requests for companies to hire certain individuals—whether made
by public officials or otherwise—are commonplace. “Lobbyists and ex-officials are sought out
and paid to use their influence in the government to achieve their clients’ ends.” Id. at 831
(noting that “the Supreme Court has some concern about extension of the Hobbs Act to
heretofore legitimate lobbying or campaign activity”). Lobbying, like campaign contributions,
implicates First Amendment concerns. See, e.g., Am. Civil Liberties Union of Illinois v. White,
692 F. Supp. 2d 986, 992 (N.D. Ill. 2010) (“[L]egislative lobbying is an activity protected by the
First Amendment.”) And lobbying, like campaign contributions, is a common feature of the
American political landscape. McClain, 934 F.2d at 831. Where core functions of the
democratic process are involved, courts must be careful not to criminalize actions taken “to
create good will or with the vague expectation of help in the future.” Allen, 10 F.3d at 412
(quoting district court’s jury instructions and noting that the instruction “neatly sums up the
central idea expressed in McCormick about the relationship between campaign contributions and
illegal conduct”). Requiring the government to plead and prove a quid pro quo avoids blurring
13
the line between permissible political activity and forbidden conduct. McCormick, 500 U.S. at
273 (“A moment’s reflection should enable one to distinguish, at least in the abstract, a
legitimate solicitation from the exaction of a fee for a benefit conferred or an injury withheld.”)
(quoting United States v. Dozier, 672 F.2d 531, 537 (5th Cir. 1982)).
The Seventh Circuit’s recent decision in United States v. Hawkins confirms that a quid
pro quo is required under the intent-to-influence prong of Section 666 in all circumstances. 777
F.3d 880, 881-82 (7th Cir. 2015). In Hawkins, two staffers on the Cook County Board of
Review were convicted under Section 666 for accepting payments from a police officer to have
his tax assessments reduced. Id. The defendants challenged their convictions on grounds that,
although they had accepted money, they never intended to follow through with the officer’s
request. Id. In rejecting their appeal, the Seventh Circuit explained that the parallel portion of
Section 666 applying to the bribe recipient criminalizes providing a thing of value with an
“intent to be influenced” (that is, receive a bribe) and providing a thing of value with an “intent
to be rewarded” (that is, receive a gratuity), and that the payments defendants received “were, if
not bribes, then gratuities.” Id. at 881. Then, in explaining the requirements for conviction
under Section 666 on each theory, the court held that the defendants could only be convicted
under a bribery theory if “the payee intended to be influenced (that is, to perform some quid pro
quo)” and if “the payee knew the payor’s intent.” Id. at 882; see also United States v.
Blagojevich, 794 F.3d 729, 736 (7th Cir. 2015) (quoting Hawkins, 777 F.3d at 882) (“‘Corruptly’
refers to the recipient’s state of mind and indicates that he understands the payment as a bribe or
gratuity.”). This definition of “corruptly”—requiring the intent to engage in a quid pro quo for a
bribery charge—offers a critical “triple safeguard against criminalizing innocent acts.” Hawkins,
777 F.3d at 882; see also United States v. Medley, 913 F.2d 1248, 1260 (7th Cir. 1990) (“The
14
essential element of a section 666 violation is a ‘quid pro quo’; that is, whether the payment was
accepted to influence and reward an official for an improper act.”). Thus, the court confirmed
that charges based on payments made with an intent to influence must allege a quid pro quo.8
* * *
The statutory language, legislative history, and a faithful reading of Seventh Circuit law
and recent Supreme Court decisions require that, to sustain a bribery charge under Section 666,
the government must allege a specific intent to give Public Official A something of value in
exchange for an action by him in connection with the business of the Illinois legislature.
B. The Indictment Fails to Allege a Quid Pro Quo.
The Bribery Counts charge Defendants with violating 18 U.S.C. § 666(a)(2) by providing
things of value to others “with intent to influence and reward Public Official A” in connection
with “legislation affecting ComEd and its business.” (Indictment at 43, ¶ 2; 46, ¶ 2; 47, ¶ 2; 49,
¶ 2.) Premised on largely the same conduct, the Conspiracy Count charges Defendants with
conspiring to offer and accept bribes under 18 U.S.C. § 666, among other things, in violation of
18 U.S.C. § 371 and § 2. (Id. at 11–12, ¶ 2; 42, ¶ 28(mm).) Although each of these counts
tracks the language of Section 666(a)(2), the language of the statute alone is insufficient to state
all essential elements of a violation of the federal programs bribery statute. See Resendiz-Ponce,
549 U.S. at 109–10. As the discussion in the prior section makes clear, bribery charges under
8 Many other appellate courts have found that a quid pro quo is required for bribery charges brought
under Section 666. See United States v. Ganim, 510 F.3d 134, 146–47 (2d Cir. 2007) (Sotomayor, J.)
(holding that a quid pro quo is required even though it need not be specific or identifiable at the time of
the exchange); Jennings, 160 F.3d at 1013 (holding that a bribery theory of Section 666 requires a jury to
find that a defendant has engaged in a specific quid pro quo); United States v. Redzic, 627 F.3d 683, 692
(8th Cir. 2010) (holding that to prove payment of a bribe under Section 666, the government must present
evidence of a quid pro quo); United States v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993) (noting in a
Section 666 case that “[t]he essential difference between a bribe and an illegal gratuity is the intention of
the bribe-giver to effect a quid pro quo”).
15
Section 666 must allege a quid pro quo—a specific intent to give something of value in exchange
for an action by Public Official A in connection with the business of the Illinois legislature.
Because the indictment fails to allege such a quid pro quo, it fails to allege the essential elements
of an offense under Section 666, and the indictment must be dismissed.
The indictment fails to allege any quid pro quo. The indictment loosely strings together
an assortment of events over a ten-year period of time—largely hiring decisions made by ComEd
made at the recommendation of Public Official A—and alleges that, because such
recommendations were made in the same decade that legislation affecting ComEd was passed, a
crime must have been committed. But the indictment fails to allege any connection between
these hiring decisions and any agreement or understanding with Public Official A that he would
take (or refrain from) any action on ComEd’s behalf in exchange for the things of value
Defendants allegedly provided. There are no allegations that any Defendant expected that
ComEd would receive any benefit from Public Official A in exchange for those things of value.
Nor are there allegations that any Defendant understood that he or she was obtaining anything at
all from Public Official A in exchange for the things of value allegedly provided. There are no
allegations that Public Official A used, agreed to use, or that Defendants believed he would use
his official powers in exchange for the hiring decisions described in the indictment. Indeed, the
indictment says very little about any actions or communications with Public Official A, and
those that it does describe do not identify any understanding that any exercise of Public
Official A’s official duties would be made in exchange for or conditioned upon ComEd’s hiring
decisions. (See, e.g., Indictment at 38–39, ¶ 28(y)–(z).) Instead, the government points only to
Public Official A’s general capacity to withhold or take certain action. (Id. at 9, ¶ 1(u).)
16
These gaps are fatal to the indictment because giving things of value to public officials
can be perfectly legal. The Supreme Court has unanimously held that it is not a crime to give
something to a public official “to build a reservoir of goodwill that might ultimately affect one or
more of a multitude of unspecified acts, now and in the future.” Sun-Diamond, 526 U.S. at 405;
see also Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 360 (2010) (“[i]ngratiation and
access . . . are not corruption.”); Jennings, 160 F.3d at 1013 (quoting Johnson, 621 F.2d at 1076)
(“[A] good will gift to an official to foster a favorable business climate, given simply with the
‘generalized hope or expectation of ultimate benefit on the part of the donor,’ does not constitute
a bribe.”); Allen, 10 F.3d at 411 (“Vague expectations of some future benefit should not be
sufficient to make a payment a bribe.”); Arthur, 544 F.2d at 734 (criminal intent required to
commit bribery “is not supplied merely by the fact that the gift was motivated by some
generalized hope or expectation of ultimate benefit on the part of the donor.”).
Accordingly, the core of the conduct alleged by the government—that “in connection
with his official duties as Speaker of the Illinois House of Representatives, and to assist ComEd
with respect to the passage of legislation favorable to ComEd and its business and the defeat of
legislation unfavorable to ComEd and its business,” Defendants “arranged for various associates
of Public Official A . . . to obtain jobs, contracts, and monetary payments associated with those
jobs and contracts from ComEd and its affiliates” (Indictment at 12–13, ¶ 3)—is not illegal by
itself; it is only illegal if it was undertaken as part of a quid pro quo scheme. Nor does the
government meet its burden by alleging that ComEd was impacted by certain legislation passed
by the Illinois General Assembly between 2011 and 2016, (id. at 6–7, ¶ 1(n)–(q)), and that Public
Official A “was able to exercise control over what measures were called for a vote in the House
of Representatives” and “exercised substantial influence over fellow lawmakers concerning
17
legislation, including legislation affecting ComEd,” (id. at 9, ¶ 1(u)). 9 As so described, Public
Official A’s power impacted every Illinois resident—so any Illinois resident who ever provided a
thing of value to Public Official A is at risk of prosecution. Alleging that Defendants provided
things of value to Public Official A and that Public Official A had the power to influence
legislation affecting ComEd falls short of alleging a quid pro quo because it fails to allege any
exchange of the benefits provided to Public Official A for Public Official A’s influence.
Nor is it sufficient to allege that Defendants intended that Public Official A take some
action on ComEd’s behalf at some unspecified time in the future when the opportunity to do so
arose. Even if there were allegations that Defendants believed Public Official A agreed to take
some action at some point in the future in exchange for the benefits ComEd allegedly conferred
on him—and there are not—such a promise is “so lacking in definition or specificity” that it
ceases to be a promise. United States v. Silver, 948 F.3d 538, 557 (2d Cir. 2020). As the Second
Circuit recently articulated, “a promise to perform some act” that will “‘benefit the payor,’
without more,” does not satisfy the requirement that the public official agree to perform an
official act at the time the payment is received. Id. (quoting McDonnell, 136 S. Ct. at 2369). 10
“[A] public official must do more than promise to take some or any official action beneficial to
the payor as the opportunity to do so arises; she must promise to take official action on a
particular question or matter as the opportunity to influence that same question or matter arises.”
Id. at 552–53. If this requirement is not met, the official “has failed to offer a quo.” Id. at 557.
Absent a contemporaneous agreement to take action on a specific question or matter, “criminal
9 Paragraphs 1(n) through 1(q) and 1(u) of the Conspiracy Count are expressly incorporated into each of
the Bribery Counts. (See Indictment at 43, ¶ 1; 46, ¶ 1; 47, ¶ 1; 49, ¶ 1.)
10Silver was assessing a conviction for Hobbs Act extortion and honest services fraud, but it interpreted
the bribery offenses by reference to Section 201(b). Silver, 948 F.3d at 551.
18
liability could attach to any later action the official takes so long as the official is exercising
some ability granted to him or her by law, regardless of the fact that the official essentially
promised nothing in return for the payment.” Id.; see also id. at 558 (“[W]ithout a requirement
that an official must promise to influence a particular question or matter, any official who
accepts a thing of value and then later acts to the benefit of the donor, in any manner, could be
vulnerable to criminal prosecution.”). This “would effectively eliminate the distinction between
lobbying (lawful attempts to ‘buy favor’) and bribery (unlawful attempts to buy particular kinds
of influence).” Id. at 566–67 (internal citation omitted).
Without any allegations of a quid pro quo, the indictment erases any distinction between
an offense under Section 666(a)(2) and innocent attempts to curry favor with a public official.
Without allegations of this essential element of the offense, Defendants “cannot be assured that
[they are] being tried on the evidence presented to the grand jury, or that the grand jury acted
properly in indicting [them].” United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000) (internal
citations omitted); see also United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir. 2002)
(explaining that the “constitutional mandates” of the Fifth and Sixth Amendments establish that
an indictment “must adequately state all of the elements of the crime charged”); Resendiz-Ponce,
549 U.S. at 110 (reasoning that, in certain circumstances, indictments “must do more than restate
the language of the statute” to meet constitutional requirements). And, without any factual
allegations illustrating a quid pro quo, the indictment fails to inform Defendants of the nature of
the criminal allegations against them. See Resendiz-Ponce, 549 U.S. at 110. The counts of the
indictment premised on a bribery theory of Section 666(a)(2) fail to allege the essential element
of a quid pro quo, and accordingly Counts One (in part), Two, Five, Six, and Eight must be
dismissed.
19
II. Charges Based on a Gratuity Theory Also Must Be Dismissed.
Because the facts alleged do not establish that any benefits were given as a reward for an
official act, the indictment also fails to adequately allege an offense based on an intent-to-reward
theory, for two independent reasons. First, the Court should adopt the conclusion of the First
Circuit to conclude that Section 666 only criminalizes bribery, not gratuities. Under this
reasoning, charges based on an intent-to-reward theory must also allege a quid pro quo. See
United States v. Fernandez, 722 F.3d 1, 23 (1st Cir. 2013); see also Sun-Diamond, 526 U.S. at
404–05. Second, even if Section 666 criminalizes gratuities, the indictment is insufficient
because it fails to tie any alleged rewards provided by Defendants to any act by Public Official
A. In light of these deficiencies, the charges based on an intent-to-reward theory must be
dismissed.
A. The Structure and History of the Statute Make Clear That a Quid Pro Quo Is
an Essential Element of Any Section 666 Charge.
Although the Seventh Circuit has held that a conviction is possible under an intent-to-
reward theory without proof of a quid pro quo, the court’s position on this point is ripe for
reconsideration in light of a circuit split. In United States v. Fernandez, the First Circuit held
that Section 666 criminalizes only bribes, not gratuities. 722 F.3d at 23, 26. The court
concluded that the statute’s prohibition of “rewards” refers only to scenarios in which a bribe is
agreed to prior to performance of an official act but is actually paid after the act is completed.
Id. at 23 (“[T]he word ‘reward’ . . . merely clarifies ‘that a bribe can be promised before, but paid
after, the official’s action on the payor’s behalf.’”) (quoting Jennings, 160 F.3d at 1015 n.3).
The Seventh Circuit has taken notice of the Fernandez decision, but it has stated that it has not
yet been called on to overrule Seventh Circuit precedent in favor of the approach taken in
Fernandez. Hawkins, 777 F.3d at 881.
20
In support of its well-reasoned ruling, the First Circuit marshalled extensive evidence
from the structure and legislative history of Section 666 and the parallel provisions of
Section 201, which criminalizes both bribery and gratuities paid to federal officials. The court
first noted that the word “corruptly” modifies only the bribery provision of Section 201, whereas
“corruptly” modifies both “influence” and “reward” in Section 666. Fernandez, 722 F.3d at 23–
24. As the Seventh Circuit has recognized, “[u]nlike a gratuity, a bribe is a payment made with
‘a corrupt purpose, such as inducing a public official to participate in a fraud or to influence his
official action.’” United States v. Anderson, 517 F.3d 953, 961 (7th Cir. 2008). Thus, use of the
word “corruptly” to modify both “influence” and “reward” reinforces that “inclusion of the word
‘reward’ in § 666 does no more than clarify that the payment of a bribe can occur after the act
that is the subject of the bribe is completed (so long as the agreement to pay the bribe for the act
or acts is made before the act or acts takes place).” Fernandez, 722 F.3d at 23–24; see also
Jennings, 160 F.3d at 1015 n.3 (considering “why § 666(a)(2)’s language prohibiting ‘rewards’
given ‘corruptly’ should be interpreted to cover gratuities, when under § 201 any payment made
‘corruptly’ is a bribe, not an illegal gratuity”). That is, “any payment made ‘corruptly’ is a
bribe.” Fernandez, 722 F.3d at 23. And a bribe requires a quid pro quo. Id.
The structure of the two statutes further supports the First Circuit’s conclusion that
Section 666 only applies to bribes. Unlike Section 201, which has separate provisions
prohibiting bribery and gratuities, Section 666 combines both “influence” and “reward” into the
same subsection. Id. at 24. The First Circuit reasoned that it is “unlikely that Congress would
condense two distinct offenses into the same subsection in § 666 when the statute upon which it
is based has separate subsections for each offense.” Id. at 24–25 (“[I]f Congress did choose to
condense bribes and gratuities into a single provision in § 666, it would be odd to do so by
21
merely plugging slightly modified language from § 201(b), its bribery provision, into the
statute.”). This reasoning is further supported by the striking and difficult-to-explain disparity
between the two-year maximum punishment for violations of the gratuity provision of
Section 201 and the ten-year maximum penalty for violations of Section 666(a)(2). Id. at 24, 26.
“This dramatic discrepancy in maximum penalties between § 666 and § 201(c) makes it difficult
to accept that the statutes target the same type of crime—illegal gratuities.” Id. at 24. Indeed,
“when Congress has wanted to adopt such a broadly prophylactic criminal prohibition upon gift
giving, it has done so in a more precise and more administrable fashion.” Sun-Diamond, 526
U.S. at 408.
This Court should adopt the well-reasoned conclusion of the First Circuit and hold that
Section 666 criminalizes only bribery. As discussed above, the facts alleged in support of the
bribery counts and related conspiracy count fail to allege the essential element of a quid pro quo,
and therefore violate Defendants’ Fifth Amendment rights to indictment by a grand jury and
protection against double jeopardy and Sixth Amendment right to be informed of the nature and
cause of the accusations against them. See Resendiz-Ponce, 549 U.S. at 108. The counts based
on an intent-to-reward theory of bribery must be dismissed.
B. The Counts Based on an Intent-to-Reward Theory Must Also Be Dismissed

for Failure to Allege a Connection Between the Gratuity and an Action by
Public Official A.
Even if the court determines that Section 666 criminalizes gratuities, the indictment must
still allege a connection between the gratuity and the action by the official that the gratuity is
intended to reward. The Supreme Court has interpreted the gratuity prong of Section 201 to
require proof of a specific exercise of governmental power by the public official. In Sun-
Diamond, the Supreme Court held that a conviction for an illegal gratuity (under Section 201(c))
requires that “some particular official act be identified and proved” and that the alleged violation
22
is “linked” to that particular official act. 526 U.S. at 406–08. 11 Without this limitation, “the
giving of gifts by reason of the recipient’s mere tenure in office constitutes a violation” of anti-
corruption laws. Id. at 408. Moreover, absent a connection between some act by the official and
the alleged reward, the gratuity provisions would criminalize lawful conduct, such as seeking “to
build a reservoir of goodwill that might ultimately affect one or more of a multitude of
unspecified acts, now and in the future.” Id. at 405; see also McDonnell, 136 S. Ct. at 2366,
2373 (quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983) (stating that “[u]nder the
‘standardless sweep’” of an unbounded definition of “official act,” “public officials could be
subject to prosecution, without fair notice, for the most prosaic interactions.”)
Should the Court decline to apply the First Circuit’s reasoning in Fernandez, and find
that Section 666 does criminalize gratuities, the intent-to-reward provision of Section 666 should
be read in concert with the parallel gratuity provision of Section 201 as described in Sun-
Diamond. Thus, to avoid criminalizing mere attempts to curry favor with public officials, the
government must prove that the alleged benefit was given to the public official because of an
action by that official. This burden is inherent in the plain language of the federal programs
bribery statute, which requires the government to prove the gift was given with an intent to
influence or reward the official “in connection with any business, transaction, or series of
transactions of such . . . government . . . involving anything of value of $5,000 or more.” 18
U.S.C. § 666(a)(2) (emphasis added). 12
11In McDonnell, the Supreme Court clarified that an “official act” must be a specific “decision or action
on a ‘question, matter, cause, suit, proceeding or controversy’” involving “a formal exercise of
governmental power.” 136 S. Ct. at 2368.
12A court in this District recently incorporated the “official act” requirement into jury instructions
premised on an intent-to-influence theory. Order at 6–7, Tamras-Martin, Case No. 18-CR-267-2.
23
Therefore, to meet its burden of showing that the benefit was given in connection with
any business or transaction worth $5,000 or more, the government must, at a minimum, identify
the business or transactions for which the payor seeks to reward the public official. The
indictment fails to do so. As described above, the indictment alleges only that Public Official A
had the ability to “exercise control over what measures were called for a vote” and “exercised
substantial influence over fellow lawmakers,” (Indictment at 9, ¶ 1(u)), but does not allege that
he used those abilities to benefit ComEd or that ComEd conferred any benefits on him to reward
him for using his authority to its benefit. Tellingly, the indictment includes no allegations that
Public Official A actually performed any specific act for which Defendants rewarded him, with
respect to the legislation described in the indictment or otherwise. There are no allegations that
any of the benefits that Defendants allegedly conferred on Public Official A were conditioned on
any action that he took or refrained from taking. In short, there are no allegations that
Defendants provided any things of value to Public Official A because of any action taken by
Public Official A. Because these essential elements of the offense are not alleged in the
indictment, the government has failed to adequately allege that Defendants violated Section 666
under an intent-to-reward theory. The indictment must therefore be dismissed.
III. Without a Quid Pro Quo Requirement, 18 U.S.C. § 666 Is Unconstitutionally Vague.
If the Court finds that no quid pro quo is required to bring charges under Section 666, it
should find that Section 666 is unconstitutionally vague absent such a requirement and dismiss
the indictment on that ground. Under the Due Process clause of the Fifth Amendment, a criminal
statute cannot be enforced if it is so vague that “ordinary people can[not] understand what
conduct is prohibited.” Kolender, 461 U.S. at 357. Instead, “a penal statute [must] define the
criminal offense [1] with sufficient definiteness that ordinary people can understand what
conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory
24
enforcement.” Skilling, 561 U.S. at 402–03 (quoting Kolender, 461 U.S. at 357). If no quid pro
quo is required, the statute fails both tests, and the Bribery and Conspiracy Counts must be
dismissed because Section 666(a)(2) is unconstitutionally vague.13
Definiteness. The Seventh Circuit has recognized that Section 666 lacks definiteness in
noting that the statute has “an open-ended quality that makes it possible for prosecutors to
believe, and public employees to deny, that a crime has occurred, and for both sides to act in
good faith with support in the case law.” Thompson, 484 F.3d at 884. Without a quid pro quo
requirement, there is simply no way for ordinary people to distinguish between criminal conduct
and conduct that is unquestionably legal, such as making campaign contributions, hiring
someone at a public official’s recommendation or request, or farmers “providing a
complimentary lunch to the Secretary of Agriculture in conjunction with his speech to the
farmers concerning various matters of USDA policy.”14 Sun-Diamond, 526 U.S. at 407. Under
the government’s interpretation of Section 666, such farmers would violate the law if they
bought a similar state official lunch if they did so in the hope that the official would act to their
benefit on any number of potential matters affecting them. The statute therefore does not
adequately define what behavior it bars and what behavior is permissible, denying Defendants
fair notice that their conduct is criminal. See Colautti v. Franklin, 439 U.S. 379, 390 (1979) (“It
is settled that, as a matter of due process, a criminal statute that fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the statute . . . is void for
13The Supreme Court has instructed federal courts “to avoid constitutional difficulties by adopting a
limiting interpretation [of a statute] if such construction is fairly possible.” Skilling, 561 U.S. at 406
(quoting Boos v. Barry, 485 U.S. 312, 331 (1988)).
14Indeed, the evidence will show that key individuals involved in the challenged hiring practices did not
believe that they were violating the law, and ComEd has not conceded that it committed a crime.
25
vagueness.”) (internal quotation marks omitted). “It is simply not fair to prosecute someone for
a crime that has not been defined until the judicial decision that sends him to jail.” Sorich v.
United States, 129 S. Ct. 1308, 1310 (2009) (Scalia, J.) (dissenting from denial of certiorari).
As applied here, the indictment fails to give fair notice to Defendants because it does not
differentiate between lawful and unlawful conduct. By merely tracking the language of the
statute without alleging a quid pro quo, the indictment alleges conduct consistent with seeking
generalized goodwill from Public Official A, which is not a crime. See Sun-Diamond, 526 U.S.
at 408–10; McDonnell, 136 S. Ct. at 2373–73. There are no allegations whatsoever connecting
the alleged benefits provided by ComEd to any exercise of Public Official A’s official duties.
Nor are there allegations of an understanding or agreement between Defendants and Public
Official A that ComEd was corruptly providing such benefits to influence or reward him, or
allegations of any belief on the part of Defendants that Public Official A would take any action
on ComEd’s behalf in exchange for or in connection with the benefits allegedly provided.
Because it lacks any such allegations, this indictment raises the “significant constitutional
concerns” identified by the Supreme Court in McDonnell, subjecting defendants to prosecution
“without fair notice, for the most prosaic interactions.” 136 S. Ct. at 2373; Thompson, 484 F.3d
at 884 (“Haziness designed to avoid loopholes through which bad persons can wriggle can
impose high costs on people the statute was not designed to catch.”).
Risk of Arbitrary and Discriminatory Enforcement. If no quid pro quo is required for
a violation of Section 666, anyone giving any “thing of value” to a public official risks
prosecution and conviction if they ever exercise their constitutional right to petition that official
for a redress of grievances, or if that official ever takes an action that benefits the giver. In cases
involving high-ranking officials like Public Official A, whose daily actions affected literally
26
every resident of Illinois, the only sure way to avoid prosecution would be never to do anything
that could be construed as providing the official anything of value. But such a draconian rule is
surely not what Congress intended—if it had, it could have simply passed a statute criminalizing
the provision of anything of value to public officials without specifying the need for a showing
of corrupt intent or that the giver provided such benefits “in connection with” the business of the
government. That standard would expose untold numbers to potential prosecution, including
virtually everyone who ever volunteered on a public official’s re-election campaign, invited a
public official to a ballgame, or bought lunch for a public official. Cf. McDonnell, 136 S. Ct. at
2373; Skilling, 561 U.S. at 408–09.
Thus, absent a quid pro quo requirement, Section 666 would provide the government
essentially unlimited discretion to prosecute anyone who has provided a benefit to a public
official, and convict them on evidence that the public official took some official act that the
defendant favored, without ever proving that the official’s actions were taken in exchange for the
benefit provided, or even that the defendant understood or expected that the benefit would
influence the official’s actions. Such unfettered discretion is an open invitation for arbitrary and
discriminatory enforcement. It surely cannot be the case that public officials commit a crime
each time they make a job recommendation, nor can it be a crime each time a company accepts
such a recommendation. 15 How, then, can companies and their agents respond to such
recommendations without risking prosecution? Must they refuse to hire anyone recommended
15 Even Abraham Lincoln, renowned for his honesty, made job recommendations while serving as
President. On May 12, 1863, he wrote to U.S. Trust Corporation asking it to hire the nephew of a Union
Army general killed in battle, and saying that if the bank hired him, Lincoln would “be very glad indeed.”
CNN Business, How Abraham Lincoln Tried to Get Someone a Job,
https://money.cnn.com/2016/02/12/news/economy/abraham-lincoln-letter-us-trust/index.html (Feb. 12,
2016).
27
by a public official before whom they may have business, even if the candidate would be a
valuable hire? If the company hires the candidate, will it be subject to second-guessing by
prosecutors who doubt that the candidate provided sufficient value to the company? These
concerns are particularly acute for a highly regulated entity like a public utility, which must
regularly engage with the legislature and develop strong relationships with legislators in order to
operate the most basic functions of its business. The rule proposed by Defendants, supported by
the case law and statutory text, provides clear guidance—hiring someone recommended by a
public official is criminal if it is the quid in a quid pro quo bribery scheme. The government
rejects that position but articulates no intelligible principle by which criminal and innocent
conduct can be distinguished.
Notably, the Supreme Court has repeatedly rejected the government’s attempts to use
vague corruption statutes to extend the “pall of potential prosecution” over prosaic relationships
between officials and constituents, expressing deep concerns about the chilling impact they
would have on the First Amendment right to petition the government for a redress of grievances.
For example, in McDonnell, the Court worried that “[o]fficials might wonder whether they could
respond to even the most commonplace requests for assistance” from organizations and
individuals who had made campaign contributions or invited the official to a ballgame. 136 S.
Ct. at 2372; see also Sun-Diamond, 526 U.S. at 405–06; Silver, 948 F.3d at 558 (Second Circuit
overturning a corruption conviction after finding that “without a requirement that an official
must promise to influence a particular question or matter, any official who accepts a thing of
value and then later acts to the benefit of the donor, in any manner, could be vulnerable to
criminal prosecution.”). Recognizing the value in such relationships, and the threats posed to
them by arbitrary prosecution, the Court refused to “construe a criminal statute on the
28
assumption that the Government will use it responsibly.” McDonnell, 136 S. Ct. at 2372–73
(internal quotation marks omitted). And the indictment in this case illustrates how the
“standardless sweep” of Section 666 can be used to selectively allow the “[f]ederal [g]overnment
[to set] standards of good government for local and state officials.” Id. at 2373 (internal
quotation marks omitted).
This prosecution threatens those same vital constitutional rights. Defendants have a First
Amendment right to petition the government, including Public Official A. See, e.g., Citizens
United, 558 U.S. at 342-43. Defendants did not surrender that right by allegedly providing
benefits to him. Yet now they face prosecution even though there is no allegation that they ever
entered into a quid pro quo agreement or understanding that Public Official A would take any
action on their behalf in exchange for the alleged benefits. Allowing this prosecution to proceed
will chill relationships between officials and constituents in the manner the Supreme Court has
rejected—unless the government is required to show a quid pro quo. Thus, if the Court finds
that Section 666 does not require a quid pro quo, the indictment should be dismissed because the
lack of definiteness and the risk of arbitrary prosecution renders the statute unconstitutionally
vague.
IV. The Court Should Apply the Rule of Lenity to Dismiss the Bribery and Conspiracy
Counts.
Courts apply the rule of lenity, if, “at the end of the process of construing what Congress
has expressed, there is a grievous ambiguity or uncertainty in the statute.” Shaw v. United States,
137 S. Ct. 462, 469 (2019) (internal quotation marks and citations omitted); see also U.S. ex rel.
Brito v. Atchison, Case No. 11-CV-6792, 2013 WL 140841, at *3 (N.D. Ill. Jan. 10, 2013)
(Leinenweber, J.) (internal quotation marks omitted) (the rule of lenity applies “in situations in
29
which a reasonable doubt persists about a statute’s intended scope even after resort to the
language and structure, legislative history and motivating policies of the statute.”).
As explained in Section I above, the language and structure, legislative history,
motivating policies, and binding judicial interpretations of Section 666 make clear that it is best
understood as an extension of the prohibitions of Section 201(b) to officials and agents other
than federal employees, and not understood as an attempt to eliminate the quid pro quo
requirement for bribery offenses or criminalize conduct that would not be criminal under Section
201 if involving a federal official. However, if the Court finds that no quid pro quo is required
to establish a bribery offense under Section 666, and that no causal connection between a thing
of value given to a public official and an action taken by that public official need be shown to
establish a gratuity offense under Section 666, then the Court should find that Section 666
contains uncertainty and reasonable doubt regarding whether conduct not criminalized under
Section 201 (if involving a federal official) is criminal under Section 666. Given the close
linkage between the statutory language of Section 666 and Section 201, and the clear legislative
history that Section 666 was based on Section 201, it would have been completely reasonable to
believe that that they prohibited the same conduct. Accordingly, the Court should dismiss the
indictment by applying the rule of lenity.
V. Alternatively, the Bribery Counts Must Be Dismissed as Duplicitous.
If the Court concludes that Section 666 contains two separate methods by which a
violation may be alleged—intent to influence (bribery) and intent to reward (gratuity)—the
Bribery Counts must be dismissed as duplicitous. 16 Two or more offenses cannot be joined in
16As discussed in Section II.A, supra, Defendants contend that intent-to-influence and intent-to-reward
offenses require proof of a quid pro quo as explained by the First Circuit in Fernandez. If the Court
30
the same count. See United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001); United
States v. Davis, 471 F.3d 783, 790 (7th Cir. 2006). Although a count may “charge the
commission of a single offense by different means,” a count is duplicitous if it charges more than
one “distinct and separate offense.” United States v. Berardi, 675 F.2d 894, 897–98 (7th Cir.
1982). “Duplicity creates a risk that the jury might return a less than unanimous guilty verdict,
potentially exposes the defendant to prejudice at trial and sentencing, and in some cases subjects
the defendant to double jeopardy.” United States v. Pansier, 576 F.3d 726, 734 (7th Cir. 2009).
“The overall vice of duplicity is that the jury cannot in a general verdict render its findings on
each offense, making it difficult to determine whether a conviction rests on only one of the
offenses or both.” United States v. Hughes, 310 F.3d 557, 560 (7th Cir. 2002) (quoting
Buchmeier, 255 F.3d at 425). A single provision of a statute may contain separate and distinct
offenses. See Pansier, 576 F.3d at 734–35 (recognizing that 26 U.S.C. § 7212(a) “contains two
distinct clauses, which each describe a separate offense,” but concluding that the indictment
charged only one of the two offenses and was not duplicitous).
As explained above, Seventh Circuit jurisprudence recognizes that the bribery and
gratuity offenses under Section 666 have distinct elements. Under the Seventh Circuit’s prior
understanding, bribery requires a quid pro quo, while a gratuity does not. See Hawkins, 777 F.3d
at 882-83; see also Order at 6, Tamras-Martin, Case No. 18-CR-267-2. That bribery and
gratuity convictions are subject to different base offense levels for sentencing further reinforces
that bribery and gratuities constitute separate crimes, not just alternate means for committing the
same offense. See Anderson, 517 F.3d at 961 (recognizing that § 2C1.1 applies to bribery
adopts the reasoning of Fernandez, the intent-to-influence and intent-to-reward offenses require proof of
the same elements, and the substantive Bribery Counts are not duplicitous.
31
convictions and § 2C1.2 applies to gratuities). Notwithstanding the different requirements of an
intent-to-influence offense and an intent-to-reward offense, each of the substantive Bribery
Counts alleges that Defendants violated both of these distinct offenses, alleging that they
intended to “influence and reward” Public Official A. (See Indictment at 43, 46-47, 49.)
Because the government has charged both a bribery and gratuity offense in a single count, there
is significant risk that a jury could convict Defendants on a Bribery Count without finding
unanimously that Defendants either committed a bribery offense—requiring proof of a quid pro
quo—or a gratuity offense. See Hughes 310 F.3d at 560. As a result, Defendants could be
subject to the increased base offense level applicable to an intent-to-influence offense without a
unanimous jury finding that Defendants intended to engage in a quid pro quo. This is the precise
concern animating the rule against duplicity of indictments. Id. The Bribery Counts must
therefore be dismissed as duplicitous.
VI. Counts Two and Five Must Be Dismissed in Their Entirety and Count One Must Be
Dismissed in Part Because the Alleged Bribes Were Bona Fide Salaries Subject to
the Section 666(c) Exemption.
Counts Two and Five and Count One, in part, must also be dismissed because the
undisputed facts fail to allege a criminal offense. The federal programs bribery statute “does not
apply” to “bona fide salary, wages, fees, or other compensation paid, or expenses paid or
reimbursed, in the usual course of business.” 18 U.S.C. § 666(c). Under this provision,
“legitimate salary, wages, and other compensation may not be considered a bribe.” United States
v. Robinson, 663 F.3d 265, 272 (7th Cir. 2011); see also 7th Cir. Crim. Pattern Jury Instr. and
Committee Comment, 18 U.S.C. § 666(c) (“Section 666(c) exempts bona fide payments from the
reach of the bribery provisions.”). Put another way, bona fide compensation cannot be the “thing
of value” paid with intent to influence or reward for purposes of Section 666. And, as the
32
Seventh Circuit explained, “[c]ompensation for a job by someone other than a ghost worker is a
‘bona fide salary’” under Section 666. Blagojevich, 794 F.3d at 736.17
Where the “thing of value” is a salary or other compensation, the government must allege
in the indictment that the compensation paid was not bona fide. An exemption such as Section
666(c) “embodies the culpability of the offense,” without which there would be no crime.
United States v. Outler, 659 F.2d 1306, 1309 (5th Cir. 1981). It is therefore an essential element
of the offense that must be alleged in the indictment and presented to the grand jury. Id.; see
also United States v. J. Murray Hooker, 841 F.2d 1225, 1231 (4th Cir. 1988) (holding that an
essential element of a crime is one “necessary to establish the very illegality of the behavior”)
(quoting United States v. Cina, 699 F.2d 853, 859 (7th Cir. 1983)); see also Russell v. United
States, 369 U.S. 749, 764–770 (1962). Here, the statutory language in Section 666(c) makes it
clear that if the compensation was bona fide, there is no crime: it provides that Section 666 “does
not apply” in such circumstances. 18 Therefore, where compensation paid was bona fide, there is
no crime.
17 Salaries are bona fide, and thus outside the scope of conduct that Section 666 criminalizes, even if the
employment granting such salaries was illegally procured, so long as “the indictment does not allege that
the jobs in question were unnecessary or that the individuals who obtained those employment positions
did not responsibly fulfill the duties associated with their employment.” United States v. Mills, 140 F.3d
630, 633 (6th Cir. 1998); see also United States v. Mann, 172 F.3d 50, at *3 (6th Cir. 1999) (table)
(upholding dismissal of Section 666 charge against a school principal who lacked the certification that
was legally required to serve in that role on a finding that “his wages were ‘bona fide’” because he
“legitimately performed the functions of the necessary position of principal.”).
18 United States v. Roya, 574 F.2d 386, 391 (7th Cir. 1978) is not to the contrary. In that case, the
Seventh Circuit stated that “[a]n indictment founded on a general provision of a statute need not negative
an exception made by a proviso or other distinct clause, whether in the same section or elsewhere.” Id.
(citing McKelvey v. United States, 260 U.S. 353 (1922)). Here, as noted above, the Section 666(c) safe
harbor is not a mere exception providing that conduct meeting all of the elements of the offense is
excused from punishment if certain other conditions are met; it instead prevents the statute from reaching
a whole class of conduct in the first place.
33
The Section 666(c) safe harbor is not an affirmative defense. In United States v. Petty,
the Seventh Circuit defined an affirmative defense as one that “goes beyond the elements of the
offense to prove facts which somehow remove the defendant from the statutory threat of criminal
liability.” 132 F.3d 373, 378 (7th Cir. 1997). Here, the Section 666(c) exemption does not “go[]
beyond the elements of the offense”—it circumscribes the reach of the statute by expressly
providing that the payment of bona fide compensation cannot violate the statute. The
inapplicability of Section 666(c) is therefore an essential element of a charge under Section 666
where the alleged thing of value is a job. See United States v. Jackson, 926 F. Supp. 2d 691, 715
(E.D.N.C. 2013) (holding that an exemption to the obstruction of justice statute for provision of
“lawful, bona fide, legal representation” is an essential element).
The indictment’s failure to allege that any of the compensation paid for jobs allegedly
offered with intent to influence or reward Public Official A was not bona fide or in the usual
course of business necessitates dismissal. “An indictment must allege facts which, if proven,
constitute the crime charged.” United States v. Tomkins, Case No. 07-CR-227, 2009 WL
590237, at *2 (N.D. Ill. Mar. 6, 2009) (Lindberg, J.) (citing United States v. Gimbel, 830 F.2d
621, 624 (7th Cir. 1987)), aff’d 782 F.3d 338 (7th Cir. 2015). Allowing an indictment that fails
to allege all of the essential elements of an offense violates a defendant’s Fifth and Sixth
Amendment rights. See Anderson, 280 F.3d at 1124 (explaining that the “constitutional
mandates” of the Fifth and Sixth Amendments establish that an indictment “must adequately
state all of the elements of the crime charged”). Critically, when an indictment fails to allege the
essential elements of the offense, the grand jury may not have considered all the elements of the
offense before returning the indictment. See Russell, 369 U.S. at 770.
34
Moreover, Counts Two and Five and Count One, in part, not only fail to allege that the
Section 666(c) exemption does not apply, the government alleges undisputed facts demonstrating
that the charged conduct is not criminal because it falls within the exemption. If the acts alleged
in an indictment do not constitute a criminal offense, the indictment must be dismissed. See
United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988) (affirming dismissal of an indictment
where “the allegations in the indictment [were] insufficient to state a claim” for a criminal
violation of a money laundering statute); see also Fed. R. Crim. P. 12(b)(1) (providing that “any
defense . . . that the court can determine without a trial on the merits” can be raised in a pretrial
motion). Even if an indictment “fulfills the elements of a violation,” it must be dismissed if “the
undisputed facts [do] not constitute a violation of any statute.” Risk, 843 F.2d at 1062; see also
United States v. Hurtgen, Case No. 05-CR-408, 2007 WL 869558, at *6 (N.D. Ill. Mar. 20, 2007)
(Grady, J.) (“[I]f the facts alleged in the indictment do not constitute an offense, the indictment is
subject to dismissal.”). Although the indictment alleges that some of the individuals hired by
ComEd performed little or no work, (Indictment at 13–14, ¶¶ 4–9),19 the undisputed facts
illustrate that Law Firm A and Individual BM-1—the subjects of Counts Two and Five,
respectively—actually performed the work that they were hired to do.
19Defendants do not concede that compensation paid to contract lobbyists who, in the government’s view,
performed “little or no work” is not bona fide or in the usual course of business. While the government
bears the burden of showing that the compensation paid was not bona fide, as this is an essential element
of the offense, Defendants McClain, Pramaggiore, and Hooker do not seek dismissal of the allegations
pertaining to such lobbyists at this stage. Defendant Doherty does not join the co-defendants on this point
and moved separately seeking to dismiss the indictment based on its failure to evidence consideration of
Section 666(c) as an essential element in Counts One and Eight. (See Dkt. 44.) Doherty also contends
that the government may not present Section 666(c) as an essential element, if it indeed did, on selective
counts but must present Section 666(c) as an essential element on all jobs-bribery counts. All defendants
believe that the government will not be able to establish a prima facie case at trial because Section 666(c)
must be considered in the context of the job at issue. The evidence will show that contract lobbyists
routinely do “little or no work” because much of their value as lobbyists comes from being able to make
connections with elected officials at the right time, which can be infrequent occurrences.
35
Count Two. Count Two alleges that Defendants McClain and Pramaggiore offered a
contract and the associated monetary payments to Law Firm A with an intent to influence and
reward Public Official A in violation of Section 666(a)(2). (Id. at 43.) Although the indictment
alleges that Public Official A recommended that ComEd renew its contract with Law Firm A,
(id. at 35, ¶ 28(h)), it does not allege that Law Firm A did not perform the work it was hired to
do. To the contrary, the undisputed facts make clear that Law Firm A was hired to perform
appropriate legal work for ComEd. The indictment 20 details negotiations between Law Firm A
and ComEd, in which ComEd sought to reduce the number of hours worked by Law Firm A.
(Id. at 15–16, ¶¶ 11–15; see also id. at 35–36, ¶ 28(h)–(k), (m)–(q).) “[P]ersonnel within ComEd
sought to reduce the number of hours of legal work provided to Law Firm A” in 2016 because
there was “not enough appropriate legal work to provide to Law Firm A.” (Id. at 15, ¶ 13.) That
is—Law Firm A had been engaged in and was expected to perform “appropriate legal work” for
ComEd. And, as the Statement of Facts accompanying the Deferred Prosecution Agreement
entered between the government and ComEd makes clear, “ComEd paid only for hours worked”
by Law Firm A. Deferred Prosecution Agreement Statement of Facts (“DPA Statement of
Facts”) at A-11, United States v. Commonwealth Edison Co., Case No. 20-CR-368 (N.D. Ill. July
17, 2020), ECF No. 3. Ultimately, ComEd entered into a new contract with Law Firm A.
(Indictment at 15, ¶ 15.) As provided in the DPA Statement of Facts, the renewed contract
promised Law Firm A “substantially reduced annual hours.” See DPA Statement of Facts at A-
11. Based on these undisputed facts, the fees paid to Law Firm A cannot be a thing of value paid
20 The detailed allegations concerning Law Firm A’s contract renewal appear in the Conspiracy Count.
36
to influence or reward Public Official A. 21 18 U.S.C. § 666(c). Accordingly, Count Two must
be dismissed.
Count Five. Count Five also alleges conduct that facially falls within the bona-fide
wages exemption of Section 666(c). Count Five alleges that Defendants McClain and
Pramaggiore sought the appointment of Individual BM-1 to the ComEd board of directors in
order to influence and reward Public Official A. (Indictment at 46.) But the indictment itself
alleges that Individual BM-1 was actually appointed to the board of directors, (id. at 17, ¶ 22),
and that ComEd represented that he served as a director starting in April 2019, (id. at 42,
¶ 28(mm)). There are no allegations that the Board position was an unnecessary one. See Mills,
140 F.3d at 633. Nor is there any dispute that Individual BM-1 was qualified and eligible to
serve in that position. Indeed, the DPA Statement of Facts states explicitly that ComEd and
Exelon “conducted due diligence on [Individual BM-1] and ultimately determined he was
qualified for a Board position.” DPA Statement of Facts at A-10. The undisputed facts make
clear that the wages paid to Individual BM-1 cannot be a thing of value for purposes of Section
666(a)(2). Count Five must therefore be dismissed. See Robinson, 663 F.3d at 272; Blagojevich,
794 F.3d at 736. Accordingly, Counts Two and Five fail to allege acts that constitute an offense
and must be dismissed. See Risk, 843 F.2d at 1061.
Because Law Firm A and Individual BM-1 fulfilled the duties for which they were hired,
the wages and fees paid to them cannot be a thing of value for purposes of Section 666(a)(2).
See Robinson, 663 F.3d at 272; Blagojevich, 794 F.3d at 736. Accordingly, Counts Two and
Five fail to allege acts that constitute an offense and must be dismissed. See Risk, 843 F.2d at
21 The facts adduced during discovery will also reveal that Law Firm A actually performed the legal work
it was hired to complete.
37
1061. And, to the extent Count One relies on allegations that hiring Law Firm A and Individual
BM-1 constituted violations of Section 666, it must be dismissed.
Lastly, the Conspiracy Count’s allegations regarding interns are also subject to the bona
fide wages exemption to Section 666. The indictment alleges that it was part of the conspiracy to
“set aside” positions in ComEd’s internship program for “individuals associated with the
Thirteenth Ward”—a ward of the City of Chicago for which Public Official A was the
Democratic Committeeman. (Indictment at 8, ¶ 1(r); 9, ¶ 18(u); 16, ¶¶ 16–19; see also id. at 34–
40, ¶ 28(e)–(g), (l), (s), (w)–(x), (dd).) But again, there are no allegations that the interns who
were hired did not perform the jobs they were hired to do or than any interns hired were not
actually qualified for the positions they held. The allegations regarding the interns therefore
cannot support a charge of conspiracy to violate 18 U.S.C. § 666. To the extent Count One relies
on allegations that hiring Law Firm A, Individual BM-1, and Thirteenth Ward interns constituted
violations of Section 666, it must be dismissed.
CONCLUSION
Defendants respectfully request that the Court dismiss Counts Two, Five, Six, and Eight
of the indictment and dismiss Count One of the indictment in part for the following reasons:
1. For all charges alleging that Defendants violated Section 666 by providing a thing
of value corruptly with intent to influence Public Official A, 22 the indictment fails
to allege a quid pro quo.
2. All charges alleging that Defendants violated Section 666 by providing a thing of
value corruptly with an intent to reward Public Official A 23 also require
22Or for conspiring with Public Official A to accept a thing of value corruptly with an intent to be
influenced, as is alleged in the Conspiracy Count.
23Or for conspiring with Public Official A to accept a thing of value corruptly with an intent to be
influenced, as is alleged in the Conspiracy Count.
38
allegations of a quid pro quo, because Section 666 does not criminalize gratuities.
The indictment fails to allege the necessary quid pro quo.
3. Should the Court conclude that Section 666 does criminalize gratuities:
a. The charges alleging that Defendants intended to reward Public Official A

must be dismissed because the indictment fails to allege a connection
between the alleged reward and an exercise of official duties by Public
Official A.
b. The indictment must be dismissed as duplicitous for charging both intent-

to-influence crimes and an intent-to-reward crimes in the same counts.
4. Should the Court conclude that no quid pro quo is required to plead a violation of
Section 666:
a. The indictment must be dismissed because Section 666 is

unconstitutionally vague.
b. The rule of lenity compels a narrow construction of the statute, and the
indictment must be dismissed.
5. Counts Two and Five must be dismissed and Count One must be dismissed in part
because the indictment fails to allege that the relevant jobs were not bona fide or
in the usual course of business and because the undisputed facts show that the
conduct alleged is excluded from the scope of the statute under the exemption for
bona fide compensation in 18 U.S.C. § 666(c).
39
DATED: June 1, 2021 Respectfully submitted,
/s/ Patrick J. Cotter /s/ Scott R. Lassar

Patrick J. Cotter Scott R. Lassar
GREENSFELDER, HEMKER & GALE, P.C. Daniel C. Craig
200 West Madison Street, Suite 3300 Jennifer M. Wheeler
Chicago, IL 60606 SIDLEY AUSTIN LLP
Telephone: (312) 345-5088 One South Dearborn
pcotter@greensfelder.com Chicago, IL 60603
Telephone: (312) 853-7000
David P. Niemeier Facsimile: (312) 853-7036
GREENSFELDER, HEMKER & GALE, P.C. slassar@sidley.com
10 South Broadway, Suite 2000 dcraig@sidley.com
St. Louis, MO 63102 jwheeler@sidley.com
Telephone: (314) 241-9090
dpn@greensfelder.com Attorneys for Defendant Anne Pramaggiore
Attorneys for Defendant Michael McClain
/s/ Michael D. Monico /s/ Gabrielle R. Sansonetti

Michael D. Monico Michael P. Gillespie
Barry A. Spevack GILLESPIE AND GILLESPIE
Jacqueline S. Jacobson 53 West Jackson Blvd., Suite 1062
Ryan W. Mitsos Chicago, IL 60604
MONICO & SPEVACK Telephone: (312) 588-1281
53 West Jackson Blvd., Suite 1315 michael@gillespieandgillespielaw.com
Chicago, IL 60604
Gabrielle R. Sansonetti
Telephone: (312) 782-8500
LAW OFFICE OF GABRIELLE R.
mm@monicolaw.com
SANSONETTI
bspevack@monicolaw.com
53 West Jackson Blvd., Suite 1062
jjacobson@monicolaw.com
Chicago, Illinois 60604
rmitsos@monicolaw.com
Telephone: (312) 588-1281
Direct: (773) 716-6117
Attorneys for Defendant John Hooker
Facsimile: (773) 277-7334
gabrielle@Sansonetti-law.com
Attorneys for Defendant Jay Doherty
40
CERTIFICATE OF SERVICE
I hereby certify that on this June 1, 2021, I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF. I certify that the foregoing document is being served
this day on all counsel of record via transmission of Notices of Electronic Filing generated by
CM/ECF.
/s/ Scott R. Lassar

SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
(312) 853-7000
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Exhibit A
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FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )

)
) No. 18 CR 267-2
vs. )
) Honorable Edmond E. Chang
)
SUZY TAMRAS-MARTIN )
ORDER
This Order accompanies Court Set 1 of the revised Jury Instructions and Court
Set 1 of the Verdict Form, and explains the decisions reflected in them. The Court
will hold an in-trial instructions conference as well.
Character Evidence (page 14). Tamras-Martin proposed a modified version

of Pattern Instruction 3.08, which would permit the jury to consider her “good
character and character for generosity.” The government objected, essentially
arguing that character evidence of that sort is not admissible. There generally is a
bar on character evidence to show action in conformity with it. Fed. R. Evid. 404(a)(1).
But under Federal Rule of Evidence 404(a)(2)(A), a defendant in a criminal case “may
offer evidence of a pertinent trait” (and the government may in turn rebut it). Fed. R.
Evid. 402(a)(20(A). Here, Defendant offers no explanation why general “good”
character is pertinent (and it is difficult to imagine any case in which character at
that level of generality would be). So that part of the proposal is rejected.
On “generosity,” however, Defendant argues that she will present evidence

that the payments were made to Hernandez’s daughter, Sara Keister (now Sara
Wood), as acts of generosity in light of Wood’s divorce. R. 57 at 2. That indeed would
be evidence of a “pertinent” trait to rebut that she made the payments with an “intent
to influence” Hernandez as required under 18 U.S.C.A. § 666(a)(2). See United States
v. Smith, 230 F.3d 300, 307 (7th Cir. 2000) (“[U]nder Rule 404 we ask whether the
evidence at issue is relevant.”). So Court Set 1 reflects an instruction on character for
generosity, but modifies it further by adding the word “alleged” before “character for
generosity,” to avoid giving a judicial stamp of approval on a factual issue.
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There are two very important notes on the generosity evidence. First, there is
an insufficient factual premise for relevancy unless there is accompanying evidence
that the motivation for the payments was in fact Defendant’s generosity. In other
words, it is too speculative for the defense to introduce only Wood’s difficult divorce
and Defendant’s character for generosity, and then ask the jury to take the leap that
the payments were motivated by generosity. Instead, a witness (whether Defendant
herself or someone else) must provide admissible testimony that the payments were
in fact motivated by Defendant’s generosity. Defendant appears to have such a
witness, R. 57 at 2, and there would be no hearsay obstacle for a declaration of
Defendant’s then-existing state of mind, so this might not be a problem, but the Court
wanted to flag the issue.
Second, Federal Rule of Evidence 405(a) constrains what evidence may be

offered to prove Defendant’s character: “it may be proved by testimony about the
person’s reputation or by testimony in the form of an opinion.” Fed. R. Evid. 405(a).
Rule 405(b) allows proof by specific instances of conduct only when the character trait
is an “essential element” of the defense. Fed. R. Evid. 405(b). Here, the trait of
generosity is not an essential element of a defense against bribery charges. United
States v McMahan, 394 Fed. Appx. 453, 463-64 (10th Cir. Sept. 2, 2010); United States
v. McGuinness, 764 F. Supp. 888, 896 (S.D.N.Y. 1991). This is akin to the principle
that general law-abidingness is typically not an essential element of a defense against
criminal charges. United States v. Reese, 666 F.3d 1007, 1020 (7th Cir. 2012)
(“Evidence that a defendant acted lawfully on other occasions is generally
inadmissible to prove he acted lawfully on the occasion alleged in the indictment.”)
(citation omitted); see also United States v. White, 737 F.3d 1121, 1137 (7th Cir. 2013)
(applying Rule 405(b)); United States v. Hill, 40 F.3d 164, 169 (7th Cir. 1994)
(applying Rule 405(b)). So Defendant will be limited to eliciting character for
generosity through opinion or reputation (or both) testimony only.
Last point on this instruction: Defendant’s proposal also included a sentence

that would say that the generosity evidence “standing alone” would be enough for
reasonable doubt. That is too argumentative. Courts (in our Circuit at least)
studiously avoid defining reasonable doubt in the first place. It would shine a bright
judicial spotlight on this category of evidence to say that it would be enough for
reasonable doubt, just as it would be too argumentative if the Court were to instruct
the jury that a particular category of inculpatory evidence is enough to overcome
reasonable doubt. The “standing alone” sentence is rejected.
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Definition of Conspiracy (page 17). At the pretrial conference, the

government withdrew its objection to Defense Instruction No. 3, so it is incorporated
into the Definition of Conspiracy as its new last paragraph.
No Unanimity on Overt Act. Defense Instruction No. 4 would have required

the jury to be unanimous in agreeing on which overt act furthered the conspiracy.
Court Set 1 rejects this instruction because the Seventh Circuit has definitively held
that unanimity on the overt act is not required. United States v. Turner, 836 F.3d
849, 862 (7th Cir. 2016); United States v. Griggs, 569 F.3d 341, 344 (7th Cir. 2009)
(“The jurors agreed unanimously on what crime [defendant] had committed—agreed
in other words that he had taken a step toward accomplishing the goal of the
conspiracy, had gone beyond mere words … That they may have disagreed on what
step he took was inconsequential.”).
Relying on Comment (d) to Pattern Instruction 5.08(A) and United States v.

Matthews, 505 F.3d 698, 709 (7th Cir. 2007),1 Tamras-Martin contends that the
principle is in doubt. But Matthews did no express a holding on the issue. See Griggs,
569 F.3d at 343 (explaining that Matthews “avoided deciding [this question] because
the answer would not have affected the outcome of the appeal”). Instead, Matthews
only suggested that the parties should consider making a request for such an
instruction. 505 F.3d at 710 (“[I]f either party had requested a unanimity instruction
or special verdict form on the overt acts, unanimity would not have been an issue in
this case. Counsel should seriously consider making such requests in the future.”). In
contrast, Griggs did explicitly hold that unanimity is not required, explaining the
distinction between elements (unanimity required) and means (unanimity not
required). 569 F.3d at 343-44. The defense proposal is thus rejected.
Elements of Bribery / Second Element of Bribery / Government

Instruction 20 (pages 20, 22). Court Set 1 includes a modified version of the Pattern
Instruction for a violation of 18 U.S.C. § 666(a)(2). The first change is the removal of
any reference to the “intent to reward” theory of liability, because the government
1Comment (d) states: “Recent Seventh Circuit authority indicates that there is no
requirement that the jury agree unanimously on which particular overt act was committed
in furtherance of the conspiracy. United States v. Griggs, 569 F.3d 341, 344 (7th Cir. 2009).
There may, however, be some conflicting authority on this point. See United States v.
Matthews, 505 F.3d 698, 709–10 (7th Cir. 2007) (“[I]f either party had requested a unanimity
instruction or special verdict form on the overt acts, unanimity would not have been an issue
in this case. Counsel should seriously consider making such requests in the future.”).”
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has decided not to pursue that theory at trial. (That seems to be a sensible decision
in light of the government’s factual theory of the case.)
What remains is the “the intent to influence” theory of liability. The actual
statutory text at issue is “corruptly gives, offers, or agrees to give anything of value
to any person, with intent to influence … an agent in connection with any business,
transaction, or series of transactions … .” § 666(a)(1). The Pattern Instruction
sensibly breaks this into two elements: first, “gives, offers, or agrees to give anything
of value.” Seventh Cir. Pattern § 666(a)(2). Second, “the defendant did so corruptly
with the intent to influence an agent of a State government agency in connection with
some business, transaction, or series of transactions of the government agency.” Id.
Next, within the same elements instruction, the Pattern Instruction then provides
this explanation for “corruptly” and “intent to influence”:
A person acts corruptly when that person acts with the intent that
something of value is given or offered to reward or influence an agent of a
government agency in connection with the agent’s official duties.
Id. (bracketed words removed for clarity).
Tamras-Martin argues that, when the government alleges corrupt intent with
the intent to influence, § 666(a)(2) requires a quid pro quo, that is, an offer of payment
in exchange for an official act. To Defendant’s eyes, the Pattern Instruction
inadequately expresses that requirement. For its part, the government contends that
an exchange (or an offer for an exchange) is not required to violate § 666(a)(2), so the
government proposes giving the Pattern Instruction. It is true that Seventh Circuit
opinions have stated, in broad terms, that a quid pro quo is not required under
§ 666(a). See United States v. Mullins, 800 F.3d 866, 871 (7th Cir. 2015); United States
v. Boender, 649 F.3d 650, 654 (7th Cir. 2011); United States v. Gee, 432 F.3d 713, 714
(7th Cir. 2005); United States v. Agostino, 132 F.3d 1183, 1190 (7th Cir.1997). But all
of those cases involved the government’s pursuit of a “reward” theory as well. So those
cases did not expressly grapple with the question presented here: when the
government relies solely on the “intent to influence” theory of liability, must it prove
payment for (or an offer to pay for) a quid pro quo? Put another way, is the “intent to
influence” theory of liability a bribery theory—which would require an exchange (or
an offer for one)—rather than a gratuity theory?
Although not doing so explicitly, the reasoning underlying Boender’s holding

actually acknowledges the distinction between the two distinct forms of liability—
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bribery versus gratuity—in Section 666(a)(2). In explaining why Section 666(a)(2)

does not require a quid pro quo, Boender distinguished between the constructions of
§ 666(a)(2) and its federal-bribery counterpart, 18 U.S.C. § 201(b), by relying on the
distinction between bribes and gratuities:
Whereas § 201(b) makes it a crime to “corruptly give[], offer[] or promise[]

anything of value to any public official ... with intent to influence any official
act,” § 666(a)(2) criminalizes corrupt giving “with intent to influence or reward”
a state or local official. Further, § 201(b) is complemented by § 201(c), which
trades a broader reach—criminalizing any gift given “for or because of any
official act performed or to be performed,” § 201(c)(1)(A)—for a less severe
statutory maximum of two, rather than fifteen, years’ imprisonment. Section
666(a)(2) has and needs no such parallel: by its plain text, it already covers
both bribes and rewards.
Boender, 649 F.3d at 655 (first emphasis in original). In that explanation, the Seventh
Circuit emphasized that the intent to “reward” is the add-on that distinguishes
§ 666(a)(2) from § 201(b) bribery. Id. And the passage’s concluding sentence outright
declares that § 666(a)(2) “covers both bribes and rewards.” Id. That must mean that,
under § 666(a)(2), “intent to influence” covers bribes whereas “intent to reward”
covers gratuities.
Boender also relied on the bribery-versus-gratuity distinction drawn by the

Supreme Court in interpreting § 201(b) versus § 201(c). 649 F.3d at 655 (citing United
States v. Sun-Diamond Growers of California, 526 U.S. 398, 404, 406 (1999)). In Sun-
Diamond, the Supreme Court interpreted § 201(b) to cover bribery, thus requiring a
specific quid pro quo, while § 201(c) covers a mere gratuity (that is, a reward), which
only requires giving something of value “for or because of” an official act. Id. The
crucial point for this case is that § 201(b)(1)(A) uses the same language as § 666(a)(2)
to describe the mental state:
(b) Whoever—
(1) directly or indirectly, corruptly gives, offers or promises anything of

value to any public official … with intent—
(A) to influence any official act …
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18 U.S.C. § 201(b)(1)(A) (emphases added). No reason comes to mind to interpret

“corruptly with intent to influence” one way for § 201(b) and another way for
§ 666(a)(2).
The upshot of all this is that Court Set 1 adopts a quid pro quo requirement
(without using the legal-ese Latin phrase) for § 666(a)(2). The Court proposes a
separate instruction, lest the elements-listing instruction (page 20) become too
unwieldy. After the introductory sentence, the instruction (page 22) would say:
A person acts corruptly with an intent to influence an agent in

connection with some business or transaction of the government when that
person acts with the intent that the agent perform an official act in exchange
for something of value.
This incorporates the quid pro quo requirement in plain English.
But this also leads us to the next issue: whether there should be some reference
to an “official act.” The government correctly points out that “official act” is not a term
found in § 666(a)(2). The statutory text actually says that the payment is given (or
offered) to influence the agent “in connection with any business, transaction, or series
of transactions” of the government. § 666(a)(2). But the jury should have some
concrete guidance on what that term means. Indeed, even the Pattern Instruction
nods to that necessity by referring to an agent’s “official duties.” Remember that the
Pattern Instruction suggests telling the jury: “A person acts corruptly when that
person acts with the intent that something of value is given or offered to reward or
influence an agent of a government agency in connection with the agent’s official
duties.” Pattern Instruction, § 666(a)(2) (emphasis added). In light of the Court’s
holding on the quid pro quo requirement, it makes sense to tell the jury that the
payment (or offer of payment) is in exchange for the performance of an “official act.”
The Court’s proposal is:
An “official act” is a decision or action on a specific matter before a

government official in his official capacity, involving a formal exercise of
governmental power. In this case, the matter at issue is the awarding of
contracts for elevator repair and maintenance. The awarding of government
contracts to outside vendors may qualify as an official act.
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Court Set 1’s proposal relies on the definition of “official act” for § 201 (federal
bribery) that the Supreme Court adopted in McDonnell v. United States, 136 S. Ct.
2355, 2371 (2016). McDonnell itself incorporated the § 201 definition of “official act”
into two statutes that do not use that term, specifically, honest-services bribery, 18
U.S.C. § 1346 and Hobbs Act extortion, 18 U.S.C. § 1951(a). 136 S. Ct. at 2365. So it
is no great leap to deploy the term for purposes of giving guidance to the jury in this
§ 666(a)(2) case. As pertinent to the allegations in this case, Court Set 1 explains that
an official act must be a “specific matter” before the government official in his official
capacity, “involving a formal exercise of governmental power.” That incorporates the
concrete requirements from McDonnell. 136 S. Ct. at 2369. To give further guidance
and to avoid misleading the jury (who might otherwise think that “formal exercise of
governmental power” is akin to only the most “formal” governmental “powers” like
enacting legislation), Court Set 1 also explains to the jury: “The awarding of
government contracts to outside vendors may qualify as an official act.” This is
supported by the myriad public-corruption cases in which the official act at issue is
the awarding of a government contract. See, e.g., United States v. Peleti, 576 F.3d 377,
381, 382-83 (7th Cir. 2009); United States v. Harvey, 532 F.3d 326, 335 (4th Cir. 2008);
United States v. Jennings, 160 F.3d 1006, 1017 (4th Cir. 1998).
Lastly, at the pretrial conference, Defendant withdrew her objection to

Government Instruction 20, so that is included as the last paragraph of this
instruction (page 22). The Court only edited the term “public official” to “government
official” for consistency with § 666.
Stream of Benefits. During the status hearing on February 15, 2019, the
Court also raised the issue of whether it would be appropriate to include an
instruction on the stream of benefits. it is worth noting that a bribery scheme does
not require that public officials and bribe payers fix a payment amount on an act-by-
act basis, as if the official were a mechanic who hands a car owner a detailed list of
charges for each specific part and each type of labor. At least in honest-services
bribery cases, bribery does include exchanges for value even if not on a specified per-
act basis, so long as the briber and the official have a standing agreement to act on
behalf of the briber. This principle has survived Skilling. Ryan v. United States, 688
F.3d 845, 852 (7th Cir. 2012); United States v. Wright, 665 F.3d 560, 568 (3d Cir.
2012); United States v. Jefferson, 674 F.3d 332, 359 (4th Cir. 2012); United States v.
Ciavarella, 716 F.3d 705, 730 (6th Cir. 2013); United States v. Botti, 711 F.3d 299,
314 (2d Cir. 2013). In other words, bribers and officials do not need to renegotiate a
bribery arrangement each time the official acts on behalf of the briber, so long as the
parties have a standing agreement to exchange value for official acts.
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The parties may (and ideally should) submit supplemental memos on this
issue. It might be that the government does not want this instruction at all, which
would moot the issue. In any event, this issue will be discussed during the in-trial
instructions conference.
Unanimity/Disagreement Among Jurors (page 30). Court Set 1 includes

the government’s proposal, which reflects Pattern Instruction 7.03, to give the Silvern
instruction before deliberations. The defense objects. The instruction will be given: it
is accurate and helpful to jurors, and of course must be given before deliberations if
it is going to possibly be given during deliberations.
Missing Witness Instruction (Defense Instruction No. 9). Court Set 1

does not include Tamras-Martin’s proposed missing witness instruction because she
provides no reason to think that James Hernandez is particularly within the control
of the government to produce as a witness. “The missing witness instruction is
disfavored by this circuit, but a district court has discretion to give it in unusual
circumstances.” United States v. Foster, 701 F.3d 1142, 1154 (7th Cir. 2012) (quoting
United States v. Tavarez, 626 F.3d 902, 904 (7th Cir.2010)). This instruction should
only be given after a defendant proves two things: “first, that the absent witness was
peculiarly within the government's power to produce; and second, that the testimony
would have elucidated issues in the case and would not merely have been
cumulative.” Id. (quoting United States v. Gant, 396 F.3d 906, 910 (7th Cir.2005)). A
witness is within the government’s power to produce “when the witness is physically
available only to the government, or where the witness's relationship with the
government makes his testimony, in pragmatic terms, available only to the
government.” Id. at 1155 (quoting United States v. Christ, 513 F.3d 762, 773 (7th
Cir.2008)). But Hernandez did not agree, for example, to testify when called on by the
government; he pled guilty without a cooperation agreement. The instruction is
rejected.
Bias/ Prejudice Instruction (Defense Instruction No. 10). There is no

need for this instruction, because Pattern Instruction 1.01, Functions of Court and
Jury (page 2 of Court Set 1), adequately covers the issue.
Verdict Form. Court Set 1 of the Verdict Form overrules Tamras-Martin’s

objection that “not guilty” should be listed first. The presumption of innocence of
course is in the instructions themselves, and the sequence simply reflects the way
people usually talk when asking a question, putting the affirmative first (e.g., “Do
you want coffee or not?” rather than “Do you not want coffee or do you want coffee?”)
8
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The Court notes that Court Set 1 of the Verdict Form renumbers Counts Five,
Six, and Seven to Counts Two, Three, and Four (the same renumbering appears in
the Elements of Bribery instruction). Ideally, the redacted indictment should omit
the substantive counts against Hernandez and renumber the substantive counts
against Tamras-Martin. But this may be discussed if there is some reason to avoid
the renumbering.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: February 17, 2019
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Exhibit B
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FILED
UNITED STATES DISTRICT COURT MAY 1 5 2019
NORTHERN DISTRICT OF ILLINOIS
JUDGE ROBERTW. GETTLEMAN
EASTERN DIVISION UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICANo. 17 CR 656
Judge Robert W. Gettleman
MICHAEL JARIGESE and

TOWER CONTRACTING LLC
JURY INSTRUCTIONS GIVEN AT TRIAL

Members of the jury, I will now instruct you on the law that you must
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follow in deciding this case. I will also give each of you a copy of these
instructions to use in the jury room. Each of you has a copy of these
instructions to use in the jury room.
You must follow all of my instructions about the law, even if you disagree with them.
This includes the instructions I gave you before the trial, any instructions I gave you
during the trial, and the instructions I am giving you now.
As jurors, you have two duties. Your first duty is
to decide the facts from the evidence that you saw and
heard here in court. This is your job, not my job or
anyone else's job.
Your second duty is to take the law as I give it to
you, apply it to the facts, and decide if the government
has proved the defendants guilty beyond a reasonable
doubt.
You must perform these duties fairly and
impartially. Do not let sympathy, prejudice, fear, or
public opinion influence you. In addition, do not let
any person's race, color, religion, national ancestry,
or gender influence you.
You must not take anything I said or did during the
trial as indicating that I have an opinion about the
evidence or about what I think your verdict should be.
1
The charges against the defendants are in a document called an indictment.
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You will have a copy of the indictment during your deliberations.
The indictment in this case charges that defendants Michael Jarigese and
Tower Contracting LLC committed the crime of wire fraud and bribery concerning
programs receiving federal funds. The defendants have pled not guilty to the
charges.
The indictment is simply the formal way of telling the defendants what
crimes they are accused of committing. It is not evidence that defendants are
guilty. It does not even raise a suspicion of guilt.
2
The defendants are presumed innocent of each of the charges. This
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presumption continues throughout the case, including during your deliberations.
It is not overcome unless, from all the evidence in the case, you are convinced
beyond a reasonable doubt that defendants are guilty as charged.
The government has the burden of proving the
defendants' guilt beyond a reasonable doubt. This burden
of proof stays with the government throughout the case.
The defendants are never required to prove their innocence. They are not
required to produce any evidence at all.
3
You must make your decision based only on the evidence that you saw and
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heard here in court. Do not consider anything you may have seen or heard outside
of court, including anything from the newspaper, television, radio, the Internet,
or any other source.
The evidence includes only what the witnesses said when they were
testifying under oath, the exhibits that I allowed into evidence, and the
stipulations that the lawyers agreed to. A stipulation is an agreement that
certain facts are true or that a witness would have given certain testimony.
Nothing else is evidence. The lawyers' statements and arguments are not
evidence. If what a lawyer said is different from the evidence as you remember
it, the evidence is what counts. The lawyers' questions and objections likewise
are not
evidence.
A lawyer has a duty to object if he thinks a question
is improper. If I sustained objections to questions the
lawyers asked, you must not speculate on what the answers
might have been.
If, during the trial, Lstruck testimony or exhibits

from the record, or told you to disregard something, you
must not consider it.
Give the evidence whatever weight you decide it deserves. Use your common
sense in weighing the evidence, and consider the evidence in light of your own
everyday experience.
4
People sometimes look at one fact and conclude from it that another fact exists. This is called an inference.
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You are allowed to make reasonable inferences, so long as they are based on the evidence.
5
You
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evidence." Direct evidence is evidence that directly proves a fact. Circumstantial
evidence is evidence that indirectly proves a fact.
You are to consider both direct and circumstantial evidence. The law does
not say that one is better than the other. It is up to you to decide how much weight
to give to any evidence, whether direct or circumstantial.
6
Do not make any decisions simply by counting the number of witnesses who
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testified about a certain point.
You may find the testimony of one witness or a few witnesses more
persuasive than the testimony of a larger number. You need not accept the
testimony of the larger number of witnesses.
What is important is how truthful and accurate the witnesses were and how
much weight you think their testimony deserves.
7
A defendant has an absolute right not to testify. You may not consider in
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any way the fact that the defendant did not testify. You must not even discuss
it in your
deliberations.
8
Part of your job as jurors is to decide how believable each witness was,
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#:281
and how much weight to give each witness' testimony, including that of defendant
Tower Contracting LLC's corporate representative, Nancy Blum. You may accept
all of what a witness says, or part of it, or none of it.
Some factors you may consider include:
the intelligence of the witness; the witness' ability and opportunity
to see, hear, or know the things the witness testified about; the
witness' memory; the witness' demeanor; whether the witness had any
bias, prejudice, or other reason to lie or slant the testimony; the
truthfulness and accuracy of the witness' testimony in light of the other
evidence presented; and inconsistent or consistent statements or conduct
by the witness.
It is proper for an attorney to interview any witness in preparation for trial.
9
You have heard evidence that before the trial, a witness made statements
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that may be inconsistent with his testimony here in court. You may consider an
inconsistent statement made before the trial only to help you decide how
believable a witness' testimony was here in court.
10
You have heard testimony from David Webb, Jr. who:
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#:283
—was promised and is expecting a benefit in return for his
testimony and cooperation with the government; and
—has pleaded guilty to certain of the crimes the defendants

are charged with committing. You may not consider his guilty
plea as evidence against the defendants.
You may give this witness' testimony whatever weight you believe is
appropriate, keeping in mind that you must consider that testimony with caution
and great care.
11
Certain summaries and charts were admitted in evidence. You may use those
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49 PageID
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#:284
summaries and charts as evidence.
12
If you have taken notes during the trial, you may use them during
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of 48
49 PageID
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#:285
deliberations to help you remember what happened during the trial. You should
use your notes only as aids to your memory. The notes are not evidence. All of
you should rely on your independent recollection of the evidence, and you should
not be unduly influenced by the notes of other jurors. Notes are not entitled
to any more weight than the memory or impressions of each juror.
13
Case:The
Case: indictmentDocument
1:20-cr-00812
1:17-cr-00656 charges that
Document #: theFiled:
#: 46-2
131 crime05/16/19
Filed: happened
06/01/21 "on15
Page
Page orof
16 about"
of 48 certain
49 PageID
PageID dates.
#:720
#:286
The government must prove that the crime happened reasonably close to those
dates. The government is not required to prove that the crime happened on those
exact
dates.
14
Defendants have been accused of more than one crime. The number of charges
Case:
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49 PageID
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#:287
is not evidence of guilt and should not influence your decision.
You must consider each charge and the evidence concerning each charge
separately. Your decision on one charge, whether it is guilty or not guilty,
should not influence your decision on any other charge.
15
Even though the defendants are being tried together, you must consider
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#:288
each defendant and the evidence against that defendant separately. Your
decision concerning one defendant, whether it is guilty or not guilty, should
not influence your decision concerning any other defendant.
16
Case: A person actsDocument
Case: 1:20-cr-00812
1:17-cr-00656 knowingly
Document #:if
#: he Filed:
46-2
131 realizes what he
Filed: 05/16/19
06/01/21 is doing
Page
Page 18 of and
19 of 48 is aware
49 PageID
PageID of the
#:723
#:289
nature of his conduct, and does not act through ignorance, mistake, or accident. In
deciding whether a defendant acted knowingly, you may consider all of the
evidence, including what that defendant did or said.
17
A person who acts on behalf of a company also is personally responsible
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#:290
for what he does or causes someone else to do. However, a person is not
responsible for the conduct of others performed on behalf of a company merely
because that person is an officer, employee, or other agent of a company.
18
Tower Contracting LLC is a limited liability company. A company may be
Case:
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#: 46-2
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#:291
found guilty of an offense. A company acts only through its agents and employees,
that is, people authorized or employed to act for the company.
Counts One through Nine of the indictment charge Tower Contracting LLC with
wire fraud, and Count Ten charges Tower Contracting LLC with theft or bribery
concerning programs receiving Federal funds. In order for you to find Tower
Contracting LLC guilty of these charges, the government must prove each of the
following elements beyond a reasonable doubt:

First, the offense charged (as described on pp. 24 through 36) was
committed by an agent or employee of Tower Contracting LLC; and
Second, in committing the offense, the agents or employees intended, at
least in part, to benefit Tower Contracting LLC; and
Third, the agents or employees acted within their authority.

1
An act is within the authority of an agent or employee if it concerns a matter
that Tower Contracting LLC generally entrusted to that agent or employee. Tower
Contracting LLC need not have actually authorized or directed the particular act.
If an agent or employee was acting within his authority, then Tower Contracting LLC is not relieved of its
responsibility just because the act was illegal, or was contrary to Tower Contracting LLC's instructions, or was against
Tower
Contracting LLC's general policies. However, you may consider the fact that Tower
Contracting LLC had policies and instructions and how carefully it tried to enforce
them when you determine whether Tower Contracting LLC's agents or employees
19
was acting
Case:
Case: with the intent
1:20-cr-00812
1:17-cr-00656 to benefit
Document
Document #: 131Tower
#: 46-2 Filed: Contracting
Filed: 05/16/19 LLC
06/01/21 Page
Page 21 or48
22 of
of was
49 acting#:726
PageID
PageID within
#:292
his
authority.
20
Case:If1:20-cr-00812
Case: you find that Document
1:17-cr-00656 an agent's act
Document #: wasFiled:
#: 46-2
131 outside
Filed: his authority,
05/16/19
06/01/21 Page
Page 22
23then
of you
of 48
49 must consider
PageID
PageID #:727
#:293
whether the company later approved the act. An act is approved if, after it is
performed, another agent of the company, with the authority to perform or authorize
the act and with the intent to benefit the company, either expressly approves the act
or engages in conduct that is consistent with approving the act. A company is legally
responsible for any act or omission approved by its agents.
21
Case:An
Case: offense may
1:20-cr-00812
1:17-cr-00656 be committed
Document
Document #: 131 by
#: 46-2 more
Filed:
Filed: than one
05/16/19
06/01/21 person.
Page
Page 23
24 of A
49defendant's
of 48 PageID guilt
PageID #:728
#:294
may be established without proof that the defendant personally performed every act
constituting the crime charged.
22
Counts One through Nine of the indictment charge defendants Michael
Case:
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#:295
Jarigese and Tower Contracting LLC with committing wire fraud. In order for you
to find the defendants guilty of this charge, the government must prove each of
the four following elements beyond a reasonable doubt:
1. That the defendant knowingly devised or participated

in a scheme to defraud, as described in Counts One through
Nine; and
2. That the defendant did so with the intent to

defraud; and
3. The scheme to defraud involved a materially false or fraudulent
pretense, representation, or promise; and
4. That for the purpose of carrying out the scheme
or attempting to do so, the defendant caused interstate
wire communications to take place in the manner charged
in the particular count.
If you find from your consideration of all the

evidence that the government has proved each of these
elements beyond a reasonable doubt as to the charge you
are considering, then you should find the defendant
guilty of that charge.
If, on the other hand, you find from your
consideration of all the evidence that the government has
failed to prove any one of these elements beyond a
reasonable doubt as to the charge you are considering,
23
then
Case:
you should
Case: 1:20-cr-00812
find #:the
Document #: 46-2
defendant
131 Filed:
Filed: 05/16/19
not26guilty
06/01/21 Page
Page 25 of
of 48
of#:296
49 PageID
that
PageID #:730
charge.
Counts One through Nine of the indictment charge defendants Michael

Jarigese and Tower Contracting LLC with committing wire fraud in two different
ways: First, the defendants are charged with wire fraud by participating in a scheme
to obtain money or property. Second, the defendants are charged with wire fraud by
participating in a scheme to defraud the city and people of Markham.
24
Case:A1:20-cr-00812
Case: scheme is a plan
1:17-cr-00656 or course
Document
Document #: of Filed:
#: 46-2
131 action formed with
Filed: 05/16/19
06/01/21 Pagethe
Page 26 intent
27 of
of 48 to accomplish
49 PageID
PageID #:731
#:297
some purpose.
A scheme to defraud is a scheme that is intended to deceive or cheat another and to obtain money or property
or cause the potential loss of money or property to another by means of materially false or fraudulent pretenses,
representations or promises or to deprive another of the intangible right to honest services through bribery.
A materially false or fraudulent pretense, representation, or promise may be accomplished by omissions or
the concealment of material information.
25
Case: In
Case: consideringDocument
1:20-cr-00812
1:17-cr-00656 whether the
Document #: government
#: 46-2
131 Filed: has proven
Filed: 05/16/19
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Page scheme
28 of
of 48 to defraud,
49 PageID
PageID #:298the
#:732
government must prove that one or more of the false or fraudulent pretenses, or
representations, promises, or bribes charged in the portion of the indictment
describing the scheme be proved beyond a reasonable doubt. The government,
however, is not required to prove all of them.
26
A false or fraudulent pretense, representation, or promise, omission, or
Case:
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29 of
of 48
49 PageID
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#:299
concealment is "material" if it is capable of influencing the decision of
persons to whom it was addressed.
It is not necessary that the false or fraudulent pretense, representation,
promise, omission, or concealment actually have that influence or be relied on
by the
alleged victim, as long as it is capable of doing so.
27
Case:A1:20-cr-00812
Case: person acts with
1:17-cr-00656 intent#:
Document
Document #:to46-2
defraud
131 Filed:if
Filed: he actsPage
05/16/19
06/01/21 knowingly
Page 29
30 of with
of 48
49 the intent
PageID
PageID #:300 to
#:734
deceive or cheat the victim in order to cause the potential loss of money or property
to another or to deprive another of the intangible right to honest services through
bribery.
28
Case:A1:20-cr-00812
Case: scheme to defraud
1:17-cr-00656 another
Document
Document #: of the
#: 46-2
131 intangible
Filed:
Filed: 06/01/21right
05/16/19 Page
Pageto30
honest
31 of 49services
of 48 PageID consists
PageID #:735
#:301
of a scheme to violate a fiduciary duty by bribery. A fiduciary duty is a duty to act
only for the benefit of the public.
A public official owes a fiduciary duty to the public.
29
A public official commits bribery when he demands, solicits, seeks, or asks for,
Case:
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32 of
of 48
49 PageID
PageID #:736
#:302
or agrees to accept or receive, or accepts or receives, directly or indirectly,
something of value from another person in exchange for a promise for, or
performance of, an official act.
"Something of value" includes money or property.
30
Case:
A defendant offers a bribe when he, directly or
Case: 1:20-cr-00812
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33 of
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49 PageID
PageID #:737
#:303
indirectly, promises, gives,
offers a public official anything of value in exchange
for a promise for, or performance of, an official act.
Awarding a contract constitutes an official act.

"Something of value" includes money or property and prospective employment.
31
Case:It1:20-cr-00812
Case: is not necessary
1:17-cr-00656 that the#:
Document
Document #:public
46-2 official
131 Filed:
Filed: had the
05/16/19
06/01/21 power
Page
Page 33 to48
34 of
of or PageID
49 did perform
PageID #:304the
#:738
act for which he was promised or which he agreed to receive something of value; it
is sufficient if the matter was before him in his official capacity. Nor is it necessary
that the public official in fact intended to perform the specific official act. It is
sufficient if the public official knew that the thing of value was offered with the
intent to exchange the thing of value for the performance of the official act.
32
The
Case:
Case: wire fraudDocument
1:20-cr-00812
1:17-cr-00656 statute can
Document #: be
131violated
#: 46-2 Filed: whether
Filed: 05/16/19
06/01/21 or not
Page
Page 34
35 ofthere
of 48 is any#:739
49 PageID
PageID loss or
#:305
damage to the victim of the crime or gain to the defendant.

The government need not prove that the scheme to defraud actually succeeded.
33
Case:
Wire transfer of funds constitutes transmission by
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36 of
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49 PageID
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#:306
means of wire
communication.
34
Case:Count
Case: Ten of the
1:20-cr-00812
1:17-cr-00656 indictment
Document
Document #: charges
#: 46-2
131 Filed:defendants
Filed: 05/16/19 Tower
06/01/21 Page
Page 36 Contracting
37 of
of 48 PageIDLLC
49 PageID #:307and
#:741
Michael Jarigese with paying a bribe or gratuity. In order for you to find the
defendants guilty of this charge, the government must prove each of the four
following elements beyond a reasonable doubt:
1. That the defendant gave, offered, or agreed to give a thing of value to
another person; and
2. That the defendant did so corruptly with the intent to influence or reward an agent of local
government, in connection with some business, transaction, or series of transactions of the local government; and
3. That this business, transaction, or series of transactions involved a thing of value of $5,000 or more;
and
4. That the local government, in a one-year period, received benefits of
more than $10,000 under any Federal program involving a grant, contract subsidy,
loan, guarantee, insurance or other assistance. The one-year period must begin no
more than 12 months before the defendant committed these acts and must end no
more than 12 months afterward.
A person acts corruptly when that person acts with the intent that something
of value is given or offered to reward or influence an agent of a local government in
connection with the agent's official duties.
If you find from your consideration of all the evidence that the government
has proved each of these elements beyond a reasonable doubt as to the charge you
are considering, then you should find the defendant guilty of that charge.
35
Case:If,
Case: on the otherDocument
1:20-cr-00812
1:17-cr-00656 hand, you
Document #:find
#: 46-2 from
Filed: your
131 Filed: consideration
05/16/19
06/01/21 Page
Page 37 ofof
38 of 49all
48 the evidence
PageID
PageID #:742
#:308
that the government has failed to prove any one of these elements beyond a
reasonable doubt as to the charge you are considering, then you should find the
defendant not guilty of that charge.
36
Expenses or other compensation paid in the usual course of business, does
Case:
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#: 46-2
131 Filed:
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Page 38
39 of
of 48
49 PageID
PageID #:743
#:309
not qualify as a thing of value given by the defendant.
37
Case:I1:20-cr-00812
Case: now will provide
1:17-cr-00656 a further
Document
Document #: explanation
#: 46-2
131 Filed: on thePage
Filed: 05/16/19
06/01/21 second
Page 40element
39 of
of 48 of the#:744
49 PageID
PageID charge
#:310
of bribery.
A person acts corruptly with an intent to influence an agent in connection
with some business or transaction of the government when that person acts with the
intent that the agent perform an official act in exchange for something of value, or
with an intent to reward for past officials acts.
An "official act" is a decision or action on a specific matter before a
government official in his official capacity, involving a formal exercise of
governmental power. In this case, the matter at issue is the awarding of purchase
orders or contracts for new

construction. The awarding of government purchase orders or contracts to outside vendors may qualify as an official
acts.
The government does not need to prove that the government official had the
power to or did perform the act for which he was given or received something of
value. It is sufficient if the matter was one that was before him in his official
capacity.
An agent is a person who is authorized to act on behalf of a government,
including an employee, officer, or representative.
38
Case:In
Case: deciding your
1:20-cr-00812
1:17-cr-00656 verdict, you
Document
Document #: should
#: 46-2
131 not
Filed:
Filed: consider
05/16/19
06/01/21 the 40
Page
Page possible
41 of
of 48 punishment
49 PageID
PageID #:311for
#:745
the defendant. If you decide that the government has proved the defendant guilty
beyond a reasonable doubt, then it will be my job to decide on the appropriate

punishment.
39
Once you are all in the jury room, the first thing you should do is choose
Case:
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#: 46-2
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Page 41
42 of
of 48
49 PageID
PageID #:746
#:312
a foreperson. The foreperson should see to it that your discussions are carried
on in an organized way and that everyone has a fair chance to be heard. You may
discuss the case only when all jurors are present.
Once you start deliberating, do not communicate about the case or your
deliberations with anyone except other members of your jury. You may not
communicate with others about the case or your deliberations by any means. This
includes oral or written communication, as well as any electronic method of
communication, such as telephone, cell phone, smart phone, iPhone, Blackberry,
computer, text messaging, instant messaging, the Internet, chat rooms, blogs,
websites, or services like Facebook, Instagram, MySpace, Linkedln, YouTube,
Twitter, or any other method of communication.
If you need to communicate with me while you are

deliberating, send a note with the date and time through
the court security officer. The note should be signed by
the foreperson, or by one or more members of the jury.
To have a complete record of this trial, it is important
that you do not communicate with me except by a written
note. I may have to talk to the lawyers about your
message, so it may take me some time to get back to you.
You may continue your deliberations while you wait for
my answer. Please be advised that transcripts of trial
testimony are not available to you.
You must rely on your collective memory of the testimony.
If you send me a message, do not include the breakdown of any votes you may
40
have conducted.
Case:
Case: In other
1:20-cr-00812
1:17-cr-00656 words,
Document
Document #: do
131not
#: 46-2 tell05/16/19
Filed:
Filed: me thatPage
06/01/21 you 42
Page are ofsplit
43 of 48 6-6, or#:747
49 PageID
PageID 8-4, or
#:313
whatever your vote happens to be.
41
A verdict form has been prepared for you. You will
Case:
Case: 1:20-cr-00812
Document #:
#: 46-2
131 Filed:
Filed: 05/16/19
06/01/21 Page
Page 43
44 of
of 48
49 PageID
PageID #:748
#:314
take this form with you to the jury room.
Read the verdict form.
When you have reached unanimous agreement, your
foreperson will fill in, date, and sign the verdict form.
Each of you will sign it.
Advise the court security officer once you have
reached a verdict. When you come back to the courtroom,
I will read the verdicts aloud.
42
The verdict must represent the considered judgment of each juror. Your verdict,
Case:
Case: 1:20-cr-00812
Document #:
#: 46-2
131 Filed:
Filed: 05/16/19
06/01/21 Page
Page 44
45 of
of 48
49 PageID
PageID #:749
#:315
whether it is guilty or not guilty, must be unanimous.
You should make every reasonable effort to reach a verdict. In doing so,
you should consult with each other, express your own views, and listen to your
fellow jurors' opinions. Discuss your differences with an open mind. Do not
hesitate to reexamine your own view and change your opinion if you come to
believe it is wrong. But you should not surrender your honest beliefs about the
weight or effect of evidence just because of the opinions of your fellow jurors
or just so that there can be a unanimous verdict.
The twelve of you should give fair and equal

consideration to all the evidence. You should deliberate
with the goal of reaching an agreement that is consistent
with the individual judgment of each juror.
You are impartial judges of the facts. Your sole
interest is to determine whether the government has
proved its case beyond a reasonable doubt.
43
Case:
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#: 46-2
131 Filed:
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46 of
of 48
49 PageID
PageID #:750
#:316

NORTHERN DISTRICT OF ILLINOIS EASTERN
DIVISION
UNITED STATES OF AMERICANo. 17 CR 656

Judge Robert W. Gettleman
MICHAEL JARIGESE and

TOWER CONTRACTING LLC
VERDICT FORM
With respect to Count One of the indictment, we, the jury, find:
Michael Jarigese
Guilty Not Guilty
Tower Contracting LLC

Guilty Not Guilty
With respect to Count Two of the indictment, we, the jury, find:
Michael Jarigese
Guilty Not Guilty

Guilty Not Guilty
Case:
Case: 1:20-cr-00812
Document #:
#: 46-2
131 Filed:
Filed: 05/16/19
06/01/21 Page
Page 46
47 of
of 48
49 PageID
PageID #:751
#:317
of the indictment, we, the jury, find:
Not Guilty
LLC
1
With respect to Count Three
Michael Jarigese
Guilty
Not Guilty
With respect to Count Four of the indictment, we, the jury, find:
Michael Jarigese
Guilty Not Guilty

Guilty Not Guilty
With respect to Count Five of the indictment, we, the jury, find:
Michael Jarigese
Guilty Not Guilty

Guilty Not Guilty
With respect to Count Six
Michael Jarigese
Guilty
Not Guilty
2
Case:
Case: 1:20-cr-00812
Document #:
#: 46-2
131 Filed:
Filed: 05/16/19
06/01/21 Page
Page 47
48 of
of 48
49 PageID
PageID #:752
#:318
Not Guilty
LLC
With respect to Count Seven of the indictment, we, the jury, find:
Michael Jarigese Guilty
Not Guilty

Guilty Not Guilty
With respect to Count Eight of the indictment, we, the jury, find:
Michael Jarigese
Guilty Not Guilty

Guilty Not Guilty
With respect to Count Nine
Michael Jarigese
Guilty
Guilty
With respect to Count Ten of the indictment, we, the jury, find:
Michael Jarigese
Guilty Not Guilty

Guilty Not Guilty
3
Case:
Case: 1:20-cr-00812
Document #:
#: 46-2
131 Filed:
Filed: 05/16/19
06/01/21 Page
Page 48
49 of
of 48
49 PageID
PageID #:753
#:319
Not Guilty
LLC
FOREPERSON
Date

McClain Et Al Motion To Dismiss

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McClain Et Al Motion To Dismiss

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Case: 1:20-cr-00812 Document #: 46 Filed: 06/01/21 Page 1 of 48 PageID #:213

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA )

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ JOINT MOTION TO

I. Count One: The Conspiracy Count. ................................................................... 3

LEGAL STANDARD ............................................................................................................. 5

I. The Counts Alleging Bribery and Conspiracy to Commit Bribery Must Be

A. A Quid Pro Quo Is an Essential Element of a Bribery Charge under

B. The Indictment Fails to Allege a Quid Pro Quo............................................ 15

II. Charges Based on a Gratuity Theory Also Must Be Dismissed. ........................ 20

B. The Counts Based on an Intent-to-Reward Theory Must Also Be

III. Without a Quid Pro Quo Requirement, 18 U.S.C. § 666 Is

V. Alternatively, the Bribery Counts Must Be Dismissed as Duplicitous................ 30

Am. Civil Liberties Union of Illinois v. White,

U.S. ex rel. Brito v. Atchison,

Citizens United v. Fed. Election Comm’n,

Evans v. United States,

Hamling v. United States,

Kelly v. United States,

McCormick v. United States,

McDonnell v. United States,

Russell v. United States,

Sabri v. United States,

Salinas v. United States,

Shaw v. United States,

Skilling v. United States,

Sorich v. United States,

United States v. Agostino,

United States v. Allen,

United States v. Anderson,

United States v. Anderson,

United States v. Arthur,

United States v. Berardi,

United States v. Blagojevich,

United States v. Boender,

United States v. Buchmeier,

United States v. Davis,

United States v. Donagher,

United States v. Fernandez,

United States v. Ganim,

United States v. Gee,

United States v. Giles,

United States v. Hawkins,

United States v. J. Murray Hooker,

United States v. Hughes,

United States v. Hurtgen,

United States v. Jackson,

United States v. Jarigese,

United States v. Jennings,

United States v. Mann,

United States v. Mariano,

United States v. Clarence McClain,

United States v. Medley,

United States v. Mills,

United States v. Mullins,

United States v. Outler,

United States v. Pansier,

United States v. Peleti,

United States v. Petty,

United States v. Pirro,

United States v. Redzic,

United States v. Resendiz-Ponce,

United States v. Risk,