[Guest post by DRJ]

Now that more details are coming out about the timing of the federal charges against Illinois Democratic Governor Rod Blagojevich, it’s a good time to take a closer look at the Criminal Complaint.

The text of Count One and Count Two, applicable statutes, and a preliminary introduction to the case law are set forth below. For a starting point on the facts, read the Affidavit attached to the Criminal Complaint or Jim Lindgren’s helpful timeline posted at The Volokh Conspiracy.

All charges are based on Title 18 of the United States Code, the federal laws that deal with criminal matters. Count One alleges crimes arising from mail and wire fraud:

COUNT ONE.

From in or about 2002 to the present, in Cook County, in the Northern District of Illinois, defendants did, conspire with each other and with others to devise and participate in a scheme to defraud the State of Illinois and the people of the State of Illinois of the honest services of ROD R. BLAGOJEVICH and JOHN HARRIS, in furtherance of which the mails and interstate wire communications would be used, in violation of Title 18, United States Code, Sections 1341, 1343, and 1346; all in violation of Title 18 United States Code, Section 1349.

EDIT: WLS corrects my analysis of Count One:

Count One charges conspiracy — a separate inchoate criminal offense from the substantive offenses of mail fraud and wire fraud that follow.

Conspiracy has only two elements — an agreement between two or more people to commit one or more crimes with the actual intent to carry out those crimes, and an overt act in furtherance of one or more of those crimes. The crime of conspiracy is complete at that point.

Substantive mail fraud and substantive wire fraud are 1341 and 1343. Blago was charged with “Honest Services” mail/wire fraud, which uniquely applies to elected officials. They owe their “honest service” to the people who elected them, and selling the Senate seat for personal gain rather than in the best interests of the people of Illinois defrauds the people of Illinois out of that to which they were entitled by having elected Blago.

But, the Complaint also has a ton of allegations concerning pre-Senate seat stuff involving Levine, Rezko, Ata, etc.

If/when we see an indictment, I suspect it will run dozens of counts since each individual mailing and each individual wire transmission is the basis for a separate count.

Actually, conspiracy is not “inchoate” because it is complete, not in progress, upon the doing of one “overt act” in furtherance of the illegal objective(s).

End of WLS comment. The following returns to my original post.

The crimes alleged in Count One arise under Sections 1341 (mail fraud), 1343 (wire fraud), and 1349 (making it a crime to attempt or conspire to do acts set forth in Sections 1341 and 1343). Section 1346 defines the term “scheme or artifice to defraud” as used in those sections.

I’m not a federal criminal lawyer nor am I knowledgeable about the case law that would flesh out what conduct is and isn’t a crime under these sections. However, the 7th Circuit has addressed the mail fraud statute, 18 U.S.C. Section 1341. (The 7th Circuit includes Illinois where this case arises.) In US vs Seward 272 F.3d 831 (7th Cir. 2001), the 7th Circuit held an action under 18 U.S.C. Section 1341 requires that the government prove: (1) that the defendant participated in a scheme to defraud; (2) that the defendant intended to defraud; and (3) that the defendant used the mails in furtherance of the scheme.

In addition, the 7th Circuit held that “the success of the scheme must in some measure depend on the mailing.” US vs Seward 272 F.3d 831 at 835-836 (7th Cir. 2001) and US vs Fernandez, 282 F.3d 500 (7th Cir. 2002) cert. den. 11/18/2002. See also Schmuck vs US 489 U.S. 705 (1989) where the Supreme Court held “the mailing element of the crime of mail fraud” need not be an essential element of the scheme to defraud but is sufficient so long as it is “incident to an essential part of the scheme.”

The Supreme Court has apparently adopted a similar approach to 18 U.S.C. Section 1343, the wire fraud statute, as illustrated by Pasquantino vs US 544 U.S. 349 (2005).

Count Two also alleges a crime under Title 18 of the U.S. Code but, unlike Count One, in my *uneducated* opinion Count Two alleges a solicitation of bribery claim:

COUNT TWO.

Beginning no later than November 2008 to the present, in Cook County, in the Northern District of Illinois, defendants ROD R. BLAGOJEVICH and JOHN HARRIS, being agents of the State of Illinois, a State government which during a one-year period, beginning January 1, 2008 and continuing to the present, received federal benefits in excess of $10,000, corruptly solicited and demanded a thing of value, namely, the firing of certain Chicago Tribune editorial members responsible for widely-circulated editorials critical of ROD R. BLAGOJEVICH, intending to be influenced and rewarded in connection with business and transactions of the State of Illinois involving a thing of value of $5,000 or more, namely, the provision of millions of dollars in financial assistance by the State of Illinois, including through the Illinois Finance Authority, an agency of the State of Illinois, to the Tribune Company involving the Wrigley Field baseball stadium; in violation of Title 18, United States Code, Sections 666(a)(1)(B) and 2.

In 2002, the 7th Circuit considered 18 U.S.C. Section 666 in a bid rigging case that addressed federal bribery claims as well as mail fraud under Sections 1341 and 1346. See US vs Fernandez, 282 F.3d 500 (7th Cir. 2002) cert. den. 11/18/2002. The government’s opposition brief is posted here.

— DRJ