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No.

17-___

IN THE

ROD BLAGOJEVICH,
Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Leonard C. Goodman Thomas C. Goldstein
53 W. Jackson Blvd. Kevin K. Russell
Suite 1650 Counsel of Record
Chicago, IL 60604 GOLDSTEIN &
RUSSELL, P.C.
J. Wells Dixon
7475 Wisconsin Ave.
Shayana D. Kadidal
Suite 850
DIXON KADIDAL LLP
Bethesda, MD 20814
43 W. 43d St.
(202) 362-0636
Suite 105
kr@goldsteinrussell.com
New York, NY 10036
QUESTIONS PRESENTED
1. When the Government prosecutes a public
official for soliciting campaign contributions in alleged
violation of the Hobbs Act or other federal
anticorruption laws, must the Government prove the
defendant made an “explicit promise or undertaking”
in exchange for the contribution, McCormick v. United
States, 500 U.S. 257, 273 (1991) (emphasis added), as
five circuits require, or “only . . . that a public official
has obtained a payment . . . knowing that [it] was
made in return for official acts,” Evans v. United
States, 504 U.S. 255, 268 (1992), as three other circuits
hold?
2. May a district court decline to address a
defendant’s nonfrivolous argument that a shorter
sentence is necessary to avoid “unwarranted sentence
disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues
a sentence within the U.S. Sentencing Guidelines, as
the Seventh and Tenth Circuits hold, in conflict with
the law of the majority of circuits?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................... i
TABLE OF AUTHORITIES ........................................ v
PETITION FOR A WRIT OF CERTIORARI .............. 1
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 4
JURISDICTION........................................................... 4
RELEVANT STATUTORY PROVISIONS ................. 4
STATEMENT OF THE CASE..................................... 6
I. Legal Background ................................................. 6
A. The Quid Pro Quo Requirement For
Federal Criminal Extortion And Bribery
Prosecutions .................................................... 6
1. McCormick v. United States..................... 6
2. Evans v. United States ............................. 8
B. Statutory Sentencing Factors ........................ 9
II. Factual Background ............................................ 10
A. The Alleged Attempt To Extort Campaign
Contributions From The President Of
Children’s Memorial Hospital ...................... 10
B. The Alleged Attempt To Extort Campaign
Contributions From Horse Racing
Executive John Johnston ............................. 11
C. The Alleged Scheme Regarding President
Obama’s Vacant Senate Seat ....................... 13
III. Procedural Background....................................... 15
A. The Trials, Conviction, And Sentencing ...... 15
iii
B. First Appeal .................................................. 17
C. Remand And Resentencing .......................... 18
D. Second Appeal............................................... 19
REASONS FOR GRANTING THE WRIT ................ 20
I. Certiorari Is Warranted To Resolve The
Longstanding Circuit Conflict Over The
Appropriate Quid Pro Quo Standard In
Campaign Contribution Cases. ........................... 20
A. The Circuits Are Divided 5-3. ...................... 20
1. The Majority Position ............................. 20
2. The Minority Position Of The Sixth,
Seventh, And Eleventh Circuits ............ 25
B. The First Question Presented Is Recurring
And Important. ............................................. 26
C. The Seventh Circuit’s Decision Is Wrong. ... 27
II. Certiorari Is Warranted To Resolve A Circuit
Conflict Over Whether District Courts May
Disregard Sentencing Disparity Arguments
When They Issue Within-Guidelines
Sentences. ............................................................ 31
A. The Circuits Are Divided. ............................ 31
1. The Majority View .................................. 31
2. The Minority Position ............................ 33
3. The Sixth Circuit’s Conflicting
Decisions ................................................. 36
B. The Second Question Presented Is
Recurring And Important. ........................... 36
C. The Seventh Circuit’s Rule Is Wrong. ......... 37
iv
CONCLUSION .......................................................... 39
APPENDIX ................................................................ 1a
Appendix A, Court of Appeals 2017 Decision .... 1a
Appendix B, Court of Appeals 2015 Decision .... 7a
Appendix C, Order Denying Rehearing ........... 31a
Appendix D, Judgment ..................................... 33a
Appendix E, Excerpts of Jury Instructions ..... 41a
Appendix F, Excerpts of First Sentencing
Transcript ......................................................... 58a
Appendix G, Excerpts of Second Sentencing
Transcript ......................................................... 75a
v
TABLE OF AUTHORITIES
Cases
Evans v. United States,
504 U.S. 255 (1992) ........................................ passim
Gall v. United States,
552 U.S. 38 (2007) ...................................... 36, 38, 39
McCormick v. United States,
500 U.S. 257 (1991) ........................................ passim
McCutcheon v. FEC,
134 S. Ct. 1434 (2014) ............................................ 27
McDonnell v. United States,
136 S. Ct. 2355 (2016) ...................................... 27, 30
Rita v. United States,
551 U.S. 338 (2007) ........................................ passim
Skilling v. United States,
561 U.S. 358 (2010) ................................................ 15
Spears v. United States,
555 U.S. 261 (2009) ................................................ 38
United States v. Allen,
10 F.3d 405 (7th Cir. 1993) .................................... 15
United States v. Annoreno,
713 F.3d 352 (7th Cir. 2013) ............................ 19, 34
United States v. Bartlett,
567 F.3d 901 (7th Cir. 2009) .................................. 34
United States v. Bigley,
786 F.3d 11 (D.C. Cir. 2015) ............................ 32, 36
United States v. Blandford,
33 F.3d 685 (6th Cir. 1994) ...................... 1, 2, 20, 25
United States v. Bradley,
173 F.3d 225 (3d Cir. 1999) ................................... 22
vi
United States v. Carpenter,
961 F.2d 824 (9th Cir. 1992) .................................. 24
United States v. Chapman,
694 F.3d 908 (7th Cir. 2012) .............................. 3, 34
United States v. Corsey,
723 F.3d 366 (2d Cir. 2013) ................................... 31
United States v. Friedman,
658 F.3d 342 (3d Cir. 2011) ................................... 32
United States v. Ganim,
510 F.3d 134 (2d Cir. 2007) ................................... 21
United States v. Gantt,
679 F.3d 1240 (10th Cir. 2012) .............................. 35
United States v. Garcia,
992 F.2d 409 (2d Cir. 1993) ................................... 21
United States v. Giles,
246 F.3d 966 (7th Cir. 2001) ............................ 20, 26
United States v. Houston,
529 F.3d 743 (6th Cir. 2008) .................................. 36
United States v. Inzunza,
638 F.3d 1006 (9th Cir. 2011) ................................ 24
United States v. Kincaid-Chauncey,
556 F.3d 923 (9th Cir. 2009) ............................ 23, 24
United States v. Lynn,
592 F.3d 572 (4th Cir. 2010) ............................ 32, 33
United States v. Martin,
718 F.3d 684 (7th Cir. 2013) .................................. 34
United States v. McGregor,
879 F. Supp. 2d 1308 (M.D. Ala. 2012) ........... 17, 20
United States v. Mondragon-Santiago,
564 F.3d 357 (5th Cir. 2009) .................................. 32
vii
United States v. Ring,
706 F.3d 460 (D.C. Cir. 2013) .................... 15, 24, 25
United States v. Ruiz-Terrazas,
477 F.3d 1196 (10th Cir. 2007) .................. 34, 35, 36
United States v. Salahuddin,
765 F.3d 329 (3d Cir. 2014) ............................. 21, 22
United States v. Siegelman,
640 F.3d 1159 (11th Cir. 2011) ........................ 15, 26
United States v. Slappy,
872 F.3d 202 (4th Cir. 2017) .................................. 33
United States v. Taylor,
993 F.2d 382 (4th Cir. 1993) ............................ 22, 23
United States v. Trujillo,
713 F.3d 1003 (9th Cir. 2013) ................................ 32
United States v. Wallace,
597 F.3d 794 (6th Cir. 2010) .................................. 36
United States v. Wireman,
849 F.3d 956 (10th Cir. 2017) ................................ 35
Statutes
18 U.S.C. § 2............................................................... 15
18 U.S.C. § 371........................................................... 15
18 U.S.C. § 666............................................................. 5
18 U.S.C. § 666(a)(1)(B) ............................................. 15
18 U.S.C. § 1001......................................................... 15
18 U.S.C. § 1343 ..................................................... 5, 15
18 U.S.C. § 1346 ..................................................... 5, 15
18 U.S.C. § 1951 ................................................. passim
18 U.S.C. § 1951(b)(2) .................................................. 6
18 U.S.C. § 3553........................................................... 6
viii
18 U.S.C. § 3553(a) ............................................ passim
18 U.S.C. § 3553(a)(6) ........................................ passim
28 U.S.C. § 1254(1) ...................................................... 4
10 ILL. COMP. STAT. 5/9-5 ........................................... 18
10 ILL. COMP. STAT. 5/9-8.10 ...................................... 18
Other Authorities
BLACK’S LAW DICTIONARY (6th ed. abr. 1991) ........... 28
Jennifer Niles Coffin, Where Procedure Meets
Substance: Making the Most of the Need for
Adequate Explanation (2016),
https://www.fd.org/sites/default/files/criminal_
defense_topics/essential_topics/
sentencing_resources/where-procedure-meets-
substance-making-the-most-of-the-need-for-
adequate-explanation.pdf ...................................... 37
Jennifer Niles Coffin, Where Procedure Meets
Substance: Making the Most of the Need for
Adequate Explanation in Federal Sentencing,
CHAMPION, Mar. 2012 ............................................ 36
Pattern Criminal Jury Instructions of the
Seventh Circuit (2012 ed.) ............................... 16, 26
Alison Siegler, Rebellion: The Courts of Appeals’
Latest Anti-Booker Backlash,
82 U. CHI. L. REV. 201 (2015)................................... 3
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Rod Blagojevich respectfully petitions
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Seventh
Circuit.
INTRODUCTION
Petitioner was prosecuted for allegedly seeking
campaign contributions in exchange for official acts.
At his trial, petitioner insisted that although he
solicited donations from constituents who had
benefited, or stood to benefit, from his official acts, he
never made an explicit promise to make any decision
contingent on the donation, and never intended to do
so. The district court rejected petitioner’s request that
the jury be instructed it must find that petitioner
made an “explicit promise or undertaking” in
exchange for the donations, as required by McCormick
v. United States, 500 U.S. 257, 273 (1991). Instead,
the court gave a charge based on the Seventh Circuit’s
pattern jury instructions, which, in turn, draw upon
language from this Court’s decision in Evans v. United
States, 504 U.S. 255 (1992). Those instructions permit
conviction based on an implied promise surmised from
the official’s acceptance of the contribution, “believing
that it would be given in exchange for specific
requested exercise of his official power.” Pet. App. 49a.
Such instructions are consistent with the law of
several circuits, which view Evans as modifying
McCormick’s “explicit promise” standard. But they
are in conflict with the law of most other circuits,
which hold that campaign contribution cases are
controlled by McCormick, not Evans. See, e.g., United
2
States v. Blandford, 33 F.3d 685, 695-96 (6th Cir.
1994) (describing split).
The difference between the McCormick and Evans
standards, although seemingly subtle at first, is of
extraordinary real-world significance. Consider a
common interaction between a politician and a
potential donor. The donor very much wishes to secure
an agreement that the official will vote for, say, a
zoning variance, but realizes that he cannot make that
an explicit condition of his campaign donation. The
official, meanwhile, is aware of the donor’s wishes, but
has no intention of making such a promise. Perhaps
she even has already made up her mind to vote against
the variance.
Under McCormick, the official may safely accept
the donation because she has made no explicit promise
or undertaking. Moreover, the legality of the donation
is completely within her own control – whatever the
donor’s motives, the official can steer clear of federal
anticorruption law by ensuring that she makes no
explicit promises in return for the donation. Under
Evans, though, she cannot be so sure. A jury could
well conclude that candidate was aware of the donor’s
intentions and might conclude that she accepted the
donation, “knowing that the payment was made in
return for official acts,” and thereby implicitly agreed
to a quid pro quo. Evans, 504 U.S. at 268.
If the donor were offering hockey tickets, the
candidate could just turn down the gift. But as this
Court recognized in McCormick, soliciting campaign
donations from those who may benefit from official
action – and, indeed, may expect their donation to
influence official action – in “a very real sense is
unavoidable so long as election campaigns are
3
financed by private contributions or expenditures, as
they have been from the beginning of the Nation.” 500
U.S. at 272. The present circuit conflict over the line
between legal and illegal campaign solicitations puts
candidates throughout the country in an untenable
position.
This petition also provides the Court a chance to
resolve a circuit conflict over a recurring sentencing
question. Petitioner argued below that his proposed
168-month sentence was more than twice as long as
the sentences given to other officials found guilty of
the same, or more culpable, conduct. See 18 U.S.C.
§ 3553(a)(6) (a sentencing court “shall consider . . . the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found
guilty of similar conduct”). The district court failed to
address this sentencing disparity argument, but the
Seventh Circuit held that such consideration was
categorically unnecessary, given that the court
ultimately issued a sentence within the Sentencing
Guidelines. Pet. App. 4a-5a; see also United States v.
Chapman, 694 F.3d 908, 916 (7th Cir. 2012) (per
curiam) (“Challenging a within-range sentence as
disparate is a ‘pointless’ exercise . . . .”) (citation
omitted). That rule is the subject of a recognized,
entrenched circuit split. See generally Alison Siegler,
Rebellion: The Courts of Appeals’ Latest Anti-Booker
Backlash, 82 U. CHI. L. REV. 201, 213-14 (2015).
This Court can, and should, eliminate both circuit
conflicts in this case.
4
OPINIONS BELOW
The most recent opinion of the court of appeals
(Pet. App. 1a-6a) is published at 854 F.3d 918. A prior
decision of the court of appeals (Pet. App. 7a-30a) is
published at 794 F.3d 729.
JURISDICTION
The judgment of the court of appeals was entered
on April 21, 2017. Pet. App. 1a. On June 5, 2017, the
Seventh Circuit denied petitioner’s timely petition for
rehearing and rehearing en banc. Pet. App. 31a-32a.
On August 1, 2017, Justice Kagan extended the time
for filing this petition through and including
November 2, 2017. See 17A129. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
In relevant part, the Hobbs Act, 18 U.S.C. § 1951
provides:
(a) Whoever in any way or degree
obstructs, delays, or affects commerce or the
movement of any article or commodity in
commerce, by robbery or extortion or
attempts or conspires so to do, or commits or
threatens physical violence to any person or
property in furtherance of a plan or purpose
to do anything in violation of this section shall
be fined under this title or imprisoned not
more than twenty years, or both.
(b) As used in this section—
...
(2) The term “extortion” means the
obtaining of property from another, with his
5
consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under
color of official right.
In relevant part, 18 U.S.C. § 666 provides:
(a) Whoever, if the circumstance described in
subsection (b) of this section exists—
(1) . . .
(B) corruptly solicits or demands for the
benefit of any person, or accepts or agrees to
accept, anything of value from any person,
intending to be influenced or rewarded in
connection with any business, transaction, or
series of transactions of such organization,
government, or agency involving any thing of
value of $5,000 or more; . . .
shall be fined under this title, imprisoned not
more than 10 years, or both.
In relevant part, 18 U.S.C. § 1343 provides:
Whoever, having devised or intending to
devise any scheme or artifice to defraud . . .
causes to be transmitted by means of wire,
radio, or television communication in
interstate or foreign commerce, any writings,
signs, signals, pictures, or sounds for the
purpose of executing such scheme or artifice,
shall be fined under this title or imprisoned
not more than 20 years, or both.
18 U.S.C. § 1346 provides:
For the purposes of this chapter, the term
“scheme or artifice to defraud” includes a
scheme or artifice to deprive another of the
intangible right of honest services.
6
In relevant part, 18 U.S.C. § 3553 provides:
(a) FACTORS TO BE CONSIDERED IN
IMPOSING A SENTENCE.—The court shall
impose a sentence sufficient, but not greater
than necessary, to comply with the purposes
set forth in paragraph (2) of this subsection.
The court, in determining the particular
sentence to be imposed, shall consider—
...
(6) the need to avoid unwarranted
sentence disparities among defendants with
similar records who have been found guilty of
similar conduct.
STATEMENT OF THE CASE
I. Legal Background
A. The Quid Pro Quo Requirement For
Federal Criminal Extortion And Bribery
Prosecutions
The Hobbs Act criminalizes “extortion,” defined to
include the “obtaining of property from another, with
his consent, . . . under color of official right.” 18 U.S.C.
§ 1951(b)(2). This Court construed the statute’s
application to bribery schemes by public officials in
two cases of central relevance to this petition.
1. McCormick v. United States
In McCormick v. United States, 500 U.S. 257
(1991), the defendant was accused of extorting
campaign contributions from doctors who had an
interest in pending legislation. The court of appeals
had held that “payments to elected officials could
violate the Hobbs Act without proof of an explicit quid
7
pro quo.” Id. at 271. It therefore approved a jury
instruction that allowed conviction so long as a
payment
was made by or on behalf of the doctors with
the expectation that such payment would
influence Mr. McCormick’s official conduct,
and with knowledge on the part of Mr.
McCormick that they were paid to him with
that expectation by virtue of the office he held.
Id. at 265 (emphasis added) (internal quotation marks
omitted).
This Court held that this instruction was
inadequate in the campaign funding context. The
Court explained that Congress must have understood
that “[m]oney is constantly being solicited on behalf of
candidates, who run on platforms and who claim
support on the basis of their views and what they
intend to do or have done.” 500 U.S. at 272. To avoid
criminalizing longstanding methods of campaign
financing and to ensure that the Act’s “forbidden zone
of conduct” is defined “with sufficient clarity,” the
Court declared that the receipt of campaign donations
can violate the Hobbs Act “only if the payments are
made in return for an explicit promise or undertaking
by the official to perform or not to perform an official
act.” Id. at 273 (emphasis added).
The dissenting Justices agreed that the Hobbs Act
required proof of a quid pro quo, but objected to
requiring that the promise be “explicit” in the
campaign contributions context. See 500 U.S. at 282-
83 (Stevens, J., dissenting).
8
2. Evans v. United States
In Evans v. United States, 504 U.S. 255 (1992),
this Court “granted certiorari to resolve a conflict in
the Circuits over the question whether an affirmative
act of inducement by a public official, such as a
demand, is an element of the offense of extortion
‘under color of official right’ prohibited by the Hobbs
Act.” Id. at 256 (citations omitted). The Court held
that no such inducement was required. See id. at
259-66.
The Court also briefly considered the defendant’s
argument that his jury instructions “did not properly
describe the quid pro quo requirement for conviction if
the jury found that the payment was a campaign
contribution.” 504 U.S. at 268. The defendant
complained the instructions did not require the jury to
find that the official had fulfilled, or at least taken
steps toward fulfilling, his promise. Ibid. This Court
held that the instruction was sufficient to “satisf[y] the
quid pro quo requirement of McCormick” because “the
offense is completed at the time” of payment of the
bribe. Ibid. In other words, “fulfillment of the quid
pro quo is not an element of the offense.” Ibid. Nor
was “an affirmative step” toward fulfilling the promise
required, in light of the “common-law tradition from
which the term of art was drawn and understood.”
Ibid.
The Court thus had no occasion to address
whether the instructions were flawed for failing to
require an “explicit promise or agreement” under
McCormick. But in the course of summarizing its
rejection of the defendants’ “fulfillment” and
“affirmative step” arguments, the Court used
9
language that has since taken on a life of its own in
the lower courts:
We hold today that the Government need only
show that a public official has obtained a
payment to which he was not entitled,
knowing that the payment was made in return
for official acts.
504 U.S. at 268 (emphasis added).1
B. Statutory Sentencing Factors
Section 3553(a) of Title 18 provides that a
sentencing court, “in determining the particular
sentence to be imposed, shall consider” an enumerated
list of sentencing factors. One is “the need to avoid
unwarranted sentence disparities among defendants
with similar records who have been found guilty of
similar conduct.” Id. § 3553(a)(6).
In Rita v. United States, 551 U.S. 338 (2007), this
Court explained that in announcing a sentence, a
“sentencing judge should set forth enough to satisfy
the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” Id. at 356. That
explanation ordinarily need not be extensive. See ibid.
But “[w]here the defendant or prosecutor presents
nonfrivolous reasons for imposing a different sentence,
however, the judge will normally go further and

1
Justice Kennedy concluded that inducement was required,
but can be satisfied by proof of a quid pro quo agreement. 504
U.S. at 273 (Kennedy, J., concurring). He further stated that the
parties “need not state the quid pro quo in express terms, for
otherwise the law’s effect could be frustrated by knowing winks
and nods.” Id. at 274.
10
explain why he has rejected those arguments.” Id. at
357.
II. Factual Background
Petitioner Blagojevich was elected governor of
Illinois in 2002 and reelected in 2006 to a second four-
year term. Based principally on recorded
conversations and witnesses themselves charged with
serious crimes, the Government indicted petitioner for
extortion, bribery, and honest services fraud.
As relevant here, the charges related to three
alleged schemes. In none of them did petitioner
explicitly demand campaign contributions or other
property in return for any official act. Instead, the
Government required the jury to read between the
lines and rely on the testimony of others involved in
the communications about what they believed
petitioner really had in mind and implicitly agreed to.
A. The Alleged Attempt To Extort
Campaign Contributions From The
President Of Children’s Memorial
Hospital
The Government charged that petitioner
demanded a $25,000 campaign contribution from
Patrick Magoon, the president of Children’s Memorial
Hospital, in exchange for a Medicaid rate increase for
pediatric specialists.
In June 2008, Magoon began lobbying for
increased reimbursements for pediatric specialists.
Tr. 2145, 2506-10. In October 2008, petitioner told a
lobbyist he intended to approve the rate increase and
also stated that he wanted to ask Magoon for a $25,000
campaign contribution. Tr. 2364-71, 2415-18. On
11
October 17, 2008, petitioner called Magoon to tell him
that he had approved the rate increase, which would
take effect after January 1, 2009. Tr. 2511-13. Five
days later, Robert Blagojevich (the Governor’s brother
and fundraising chairman) called Magoon, introduced
himself, and then asked if he would raise $25,000 for
the Governor’s campaign fund.
At trial, Magoon testified that he believed the rate
increase “was contingent upon a contribution of
$25,000” because Robert had asked him to raise the
money “in a very strong suggestion” and had
mentioned a January 1 deadline for fundraising.
Tr. 2521-22, 2548. Magoon decided not to raise the
funds for petitioner and stopped returning Robert’s
calls.
During a November 12, 2008, recorded call,
petitioner’s deputy advised that the Governor still had
“discretion over” the rate increase, and petitioner
responded, “[t]hat’s good to know.” Tr. 2159-61. The
deputy testified that he interpreted petitioner’s
response as a direction to put a hold on the rate
increase, which he did, causing a delay in the start
date of the increase. Tr. 2161-65, 2247. (The rate
increase did go into effect in January 2009, though the
district court precluded the jury from hearing this fact.
Tr. 2558, 2596.)
B. The Alleged Attempt To Extort
Campaign Contributions From Horse
Racing Executive John Johnston
The indictment also alleged that petitioner
attempted to extort a campaign contribution from an
Illinois horse racing executive in exchange for the
timely signing of a bill that benefited the horse racing
12
industry. Again, that claim depended not on any
explicit quid pro quo but on third parties’
interpretation of petitioner’s ambiguous statements.
As governor, petitioner was a consistent supporter
of the Illinois horse racing industry. Perhaps as a
result, John Johnston, a race track owner, was a
longtime supporter of the Governor. Tr. 2717, 2744.
In early 2008, Johnston made a commitment to raise
$100,000 for the Blagojevich campaign by the end of
October. Tr. 3764-70. On several occasions during
November 2008, Johnston told Lon Monk – a lobbyist
who was previously petitioner’s Chief of Staff – that
delivery of the contribution was imminent, and Monk
conveyed that information to petitioner. Tr. 3776-77,
3780-81.
Johnston had an interest in a pending bill that
would require Illinois casinos to pay a percentage of
their revenue to the horse racing industry. The
racetrack bill passed both houses of the Illinois
legislature and was sent to the Governor’s desk on
November 24, 2008. Tr. 1567-69, 2743-49, 2753.
Monk and others then began lobbying the Governor to
quickly sign the bill. Tr. 1569, 2756, 2769, 2986. In a
recorded conversation on December 3, Monk told
petitioner, “I want to go to [Johnston] without crossing
the line . . . give us the money and one has nothing to
do with the other, but give us the f’ing money.”
Tr. 2763, 2769. Petitioner responded, “I think you just
say, look, it’s been a year. Let’s just get this done, just
get it done. Christ.” Tr. 2772.
At trial, however, Monk – who by then had agreed
to testify for the Government in exchange for a lower
sentence on his own unrelated criminal charges –
testified that it was his “understand[ing]” that
13
petitioner wanted him to deliver the message to
Johnston that “they were in exchange for one another.”
Tr. 2776. Johnston – who was given immunity –
testified that Monk told him that the Governor was
“concerned that if he signs the racing legislation you
might not be forthcoming with a contribution.”
Tr. 2989. Monk told Johnston that the contribution
was a “different subject matter” from the bill signing,
but Johnston said he “did not believe” him.
Tr. 2989-91, 3032.
On December 4, 2008, even though Johnston had
not yet fulfilled his pledge, petitioner told Monk in a
recorded call that he would sign the bill “next week.”
Tr. 2787-89. Less than a week later, on December 9,
petitioner was arrested before signing the bill.
Tr. 2993.
C. The Alleged Scheme Regarding
President Obama’s Vacant Senate Seat
After Senator Barack Obama was elected
president, petitioner had the authority to appoint
Obama’s successor in the Senate. Tr. 1305. The
Government alleged that petitioner proposed to
appoint the President’s preferred candidate in
exchange for being made head of the Department of
Health and Human Services. That conviction,
however, was reversed on appeal and is no longer at
issue. Pet. App. 12a-18a.
The Government also alleged that petitioner
discussed with his advisors the possibility of asking
the President-elect and a prominent member of
Congress to use their influence to set up a not-for-
profit organization focused on children’s healthcare
that petitioner would lead after he left office. Tr. 1514,
14
1739-49, 1836, 1909-11. No steps were ever taken to
carry out any such plan.
Finally, the Government alleged that petitioner
attempted to obtain $1.5 million in campaign
contributions in exchange for appointing U.S.
Congressman Jesse Jackson, Jr. Pet. App. 9a;
Tr. 2064. In October 2008, a supporter of both the
Governor and Jackson approached Robert Blagojevich
with an offer that Jackson supporters would raise
funds for petitioner’s campaign in exchange for the
appointment of Jackson to the Senate. Tr. 2037, 2039.
On October 31, 2008, petitioner told his deputy about
the overture from Jackson’s camp. Tr. 2109-10.
Two months later, petitioner’s pollster advised
the Governor that Jackson was polling better than any
of the other prospective candidates for the Senate seat.
Tr. 2112-13. Later that day, petitioner told his Chief
of Staff that he was “honestly going to objectively look
at the value of putting Jesse, Jr. there.” Tr. 1604. Also
later that day, petitioner told his brother to meet with
a Jackson supporter and tell him that Jackson was
“very much . . . realistic . . . . And the other point, you
know, all these promises of help, that’s all well and
good, but he’s had an experience with Jesse and Jesse
promised to endorse him for governor and lied to him,
okay . . . . [T]hen some of this stuff’s got to start
happening now.” Tr. 4533, 4537-38.
Whether petitioner was willing to agree to an
actual quid pro quo, or only intended to lead the
donors into believing he might appoint Jackson in the
hopes of securing their donations, presumably would
have become clear at a future meeting with Jackson’s
supporters. But the Government arrested petitioner
before such a meeting could take place. In the end,
15
petitioner did not appoint Jackson, and Jackson’s
supporters contributed only $5,000 to petitioner’s
campaign. Tr. 2061-62.
III. Procedural Background
A. The Trials, Conviction, And Sentencing
Petitioner was charged with attempting and
conspiring to commit extortion under the Hobbs Act,2
soliciting and conspiring to accept a bribe,3 engaging
in honest services wire fraud, 4 and making a false
statement to the FBI.5 Pet. App. 9a-10a. At an initial
jury trial, petitioner was convicted of making a false
statement to investigators, but the jury failed to reach
a verdict on the remaining charges.
At the retrial, petitioner asked the court to
instruct the jury, consistent with McCormick, that
[i]n order for [campaign] contributions to
constitute extortion, bribery or wire fraud,
the government must prove that the
payments are made in return for an explicit
promise or undertaking by the official to
perform or not to perform an official act.
Dist. Ct. Doc. 715, at 38 (May 23, 2011) (emphasis
added). 6 The court instead issued an instruction

2
18 U.S.C. §§ 2, 1951.
3
18 U.S.C. §§ 371, 666(a)(1)(B).
4
18 U.S.C. §§ 1343, 1346.
5
18 U.S.C. § 1001.
6
Because “extortion ‘under color of official right’ and bribery
are really different sides of the same coin,” United States v. Allen,
10 F.3d 405, 411 (7th Cir. 1993), and because honest services
16
drawn from the Seventh Circuit’s pattern jury
instructions and modeled on the statement in Evans
discussed supra, at 9:
if an official receives or attempts to obtain
money or property believing that it would be
given in exchange for specific requested
exercise of his official power, he has
committed extortion under color of official
right even if the money or property is to be
given to the official in the form of a campaign
contribution.
Pet. App. 49a (emphasis added); see also id. at 45a (“It
is sufficient that the public official knew that the thing
of value was offered with the intent to exchange the
thing of value for the performance of an official act.’’);
compare Pattern Criminal Jury Instructions of the
Seventh Circuit 494 (2012 ed.).7 The jury convicted.
Pet. App. 7a.
At sentencing, petitioner argued, among other
things, that the lengthy sentence the Government
proposed would result in an unwarranted sentencing
disparity, given the much more lenient sentences
given other public officials charged with similar, if not
more serious, misconduct. See Dist. Ct. Doc. 865, at

fraud requires proof of bribery (or kickbacks, which are not
alleged here), see Skilling v. United States, 561 U.S. 358, 412-13
(2010), the McCormick standard applied equally to petitioner’s
bribery and fraud charges. See, e.g., United States v. Ring, 706
F.3d 460, 466 (D.C. Cir. 2013) (assuming McCormick extends to
honest services fraud); United States v. Siegelman, 640 F.3d
1159, 1171-74 (11th Cir. 2011) (per curiam) (assuming same for
bribery and honest services charges).
7
Available at http://www.ca7.uscourts.gov/pattern-jury-
instructions/7th_criminal_jury_instr.pdf.
17
59-67 (Nov. 30, 2011) (showing, e.g., that other Illinois
politicians convicted of corruption involving cash
payments and self-enrichment, including former
Governor George Ryan, received sentences ranging
from 10 to 78 months’ imprisonment). The district
court nonetheless handed down a 168-month sentence
without addressing petitioner’s sentencing disparity
argument. See Pet. App. 58a-74a.
B. First Appeal
1. On appeal, petitioner argued that the jury
instructions erroneously failed to require proof of an
“explicit promise or undertaking” under McCormick,
and that the evidence was insufficient to prove the
required quid pro quo under the proper standard.
Petr. C.A. Br. 37-39, 41, 45, 50-54. Relying on Judge
Myron Thompson’s decision in United States v.
McGregor, 879 F. Supp. 2d 1308 (M.D. Ala. 2012),
petitioner further argued that to “be explicit, the
promise or solicitation need not be in writing” and may
be “inferred from both direct and circumstantial
evidence,” but must be “clearly set forth” and establish
a “meeting of the minds.” Petr. C.A. Br. 53 (internal
quotation marks omitted).
The Seventh Circuit never reached the question of
what counts as an “explicit” quid pro quo, deciding
instead that a quid pro quo need not be “demanded
explicitly” at all. Pet. App. 18a; see also ibid.
(characterizing the explicit promise or undertaking
18
standard as a “magic-words requirement” inconsistent
with the statute).8
However, the court of appeals reversed the counts
relating to petitioner’s alleged scheme to obtain a
cabinet appointment for unrelated reasons and
remanded. Pet. App. 18a.
2. After an unsuccessful petition for rehearing
en banc, petitioner sought review in this Court,
challenging the Seventh Circuit’s quid pro quo
standard. See Blagojevich v. United States, No. 15-
664. The Government’s leading argument against
review was that “the case is still in an interlocutory
posture.” BIO 9. The “interests of judicial economy
would be served best,” the Government advised, “by
denying review now and allowing petitioner to
reassert his claims – including any new claims that
might arise following resentencing or retrial, if one
occurs – at the conclusion of the proceedings.” Id. at
9-10. This Court denied the petition. 136 S. Ct. 1491.
C. Remand And Resentencing
On remand, the Government elected not to retry
petitioner, but nonetheless asked the district court to
impose the same extraordinary sentence as before.

8
The court also stated in a passing parenthetical that the
“jury was entitled to conclude that” any campaign donation would
be “for [Blagojevich’s] personal benefit rather than a campaign”
because petitioner “had decided not to run for a third” term as
governor. Pet. App. 9a. But the Government never asked the
jury to make such a finding, perhaps recognizing that Illinois law
strictly forbade expenditure of campaign funds for personal use,
10 ILL. COMP. STAT. 5/9-8.10, even after leaving office, 10 ILL.
COMP. STAT. 5/9-5. Instead, state law permits politicians to spend
unused campaign funds for other political purposes. Ibid.
19
Petitioner again argued, among other things, that the
168-month sentence was unprecedented in
comparison to those handed down in other corruption
cases. Dist. Ct. Doc. 1233, at 15 (July 11, 2016); Dist.
Ct. Doc. 1255, at 9-10 (Aug. 9, 2016). The court
reinstated the prior sentence, while again failing to
address petitioner’s sentencing disparity argument.
Pet. App. 75a-83a.
D. Second Appeal
Petitioner appealed again, objecting among other
things to the district court’s failure to address his
sentencing disparity argument. Pet. App. 2a-3a. The
Seventh Circuit affirmed. Id. at 6a. Because the judge
“gave a sentence within the revised Guidelines range,”
and because the “Sentencing Guidelines are
themselves an anti-disparity formula,” the court
concluded that the district court “therefore did not
need to discuss § 3553(a)(6) separately.” Id. at 4a-6a;
see also, e.g., United States v. Annoreno, 713 F.3d 352,
359 (7th Cir. 2013) (district court did not err in failing
to address disparity argument because “challenges
that a within-range sentence is disparate [are]
‘pointless.’”) (citation omitted).
The Seventh Circuit subsequently denied
petitioner’s petition for rehearing and rehearing en
banc. Pet. App. 31a-32a.
20
REASONS FOR GRANTING THE WRIT
I. Certiorari Is Warranted To Resolve The
Longstanding Circuit Conflict Over The
Appropriate Quid Pro Quo Standard In
Campaign Contribution Cases.
Numerous courts have observed that “[e]xactly
what effect Evans had on McCormick is not altogether
clear.” United States v. Blandford, 33 F.3d 685, 695
(6th Cir. 1994); see also, e.g., United States v. Giles,
246 F.3d 966, 971-72 (7th Cir. 2001) (noting that “not
all courts of appeals that have considered the issue
have found the Evans holding entirely clear”);
McGregor, 879 F. Supp. 2d at 1316-17 (Thompson, J.)
(observing there is “considerable debate” over
McCormick and Evans, and the “Circuit Courts of
Appeals have struggled with these questions”). That
ambiguity in this Court’s decisions has led to the
circuit conflict at the center of this case.
A. The Circuits Are Divided 5-3.
The majority of circuits to have considered the
question treat McCormick as setting the standard for
campaign contribution cases and Evans as
establishing a lesser standard for other contexts.
Other circuits agree that Evans establishes a lesser
standard, permitting conviction upon proof of a merely
implicit agreement. But they hold that Evans
established a replacement for the McCormick test,
applicable to all cases, including campaign donation
prosecutions.
1. The Majority Position
Second Circuit. As then-Judge Sotomayor once
explained, the Second Circuit “harmonized
21
McCormick and Evans in United States v. Garcia, 992
F.2d 409 (2d Cir. 1993).” United States v. Ganim, 510
F.3d 134, 143 (2d Cir. 2007) (Sotomayor, J.). In
Garcia, the Second Circuit held:
Although the McCormick Court had ruled
that extortion under color of official right in
circumstances involving campaign
contributions occurs “only if the payments are
made in return for an explicit promise or
undertaking by the official to perform or not
to perform an official act,” Evans modified
this standard in non-campaign contribution
cases by requiring that the government show
only “that a public official has obtained a
payment to which he was not entitled,
knowing that the payment was made in
return for official acts.”
992 F.3d at 414 (emphasis added) (internal citations
omitted).
Accordingly, in the Second Circuit “proof of an
express promise is necessary when the payments are
made in the form of campaign contributions.” Ganim,
510 F.3d at 142 (emphasis added). In the “non-
campaign context,” however, the necessary
“agreement may be implied from the official’s words
and actions.” Id. at 143 (citing Garcia, 992 F.3d at 414,
in turn citing Evans, 504 U.S. at 274 (Kennedy, J.,
concurring)) (emphasis added).
Third Circuit. The Third Circuit draws the
same distinction. In United States v. Salahuddin, 765
F.3d 329 (3d Cir. 2014), that court explained that an
“explicit quid pro quo is required for extortion based
upon campaign contributions,” id. at 343 n.9, but that
22
the court had “previously rejected attempts to require
an explicit quid pro quo arrangement outside of the
campaign contribution context,” id. at 343 (citing
United States v. Bradley, 173 F.3d 225, 232 (3d Cir.
1999)).
The Third Circuit therefore approved the district
court’s distinction between the two contexts in its jury
instructions. To convict the defendant for accepting
campaign donations, the district court required the
jury to find that the defendant had accepted “a
political contribution knowing that it is given in
exchange for an explicit promise or understanding by
the official to perform or not to perform a specific
official act or course of official action.” Salahuddin,
765 F.3d at 343 n.9 (emphasis added) (internal
quotation marks omitted). The instructions regarding
other bribes properly omitted the requirement of an
“explicit promise or undertaking,” the Third Circuit
explained, because in that context “‘the Government
need only show that a public official has obtained a
payment to which he was not entitled, knowing that
the payment was made in return for official acts.’” Id.
at 344 (quoting Evans, 504 U.S. at 268).
Fourth Circuit. In United States v. Taylor, 993
F.2d 382 (4th Cir. 1993), the Fourth Circuit reversed
the conviction of a public official charged with
extortion for accepting what he claimed to be
campaign contributions. Id. at 382-83. The Fourth
Circuit explained that McCormick and Evans
establish two different tests applicable to two different
situations:
It is necessary for the prosecution to prove
under the Evans standard “that a public
official has obtained a payment to which he is
23
not entitled, knowing that the payment was
made in return for official acts.” Or, if the jury
finds the payment to be a campaign
contribution, then, under McCormick, it must
find that “the payments are made in return
for an explicit promise or undertaking by the
official to perform or not to perform an official
act.”
Id. at 385 (emphasis added) (internal citations
omitted).
Ninth Circuit. The Ninth Circuit has similarly
embraced the distinction between the explicit
agreement required under McCormick for campaign
contribution bribery and the implicit agreement that
is sufficient under Evans in other contexts.
In United States v. Kincaid-Chauncey, 556 F.3d
923 (9th Cir. 2009), Judge Bybee explained that “it is
well established that to convict a public official of
Hobbs Act extortion for receipt of property other than
campaign contributions,” the Evans standard applied
and an “explicit quid pro quo is not required; an
agreement implied from the official’s words and
actions is sufficient to satisfy this element.” Id. at 937
(emphasis added). The court thus approved the
district court’s instruction in the case before it, which
provided:
In the case of a public official who obtains
money, other than a campaign contribution,
the Government does not have to prove an
explicit promise to perform a particular act
made at the time of the payment. Rather, it
is sufficient if the public official understands
that he or she is expected as a result of the
24
payment to exercise particular kinds of
influence as specific opportunities arise.
Ibid. (emphasis added).
In contrast, in United States v. Inzunza, 638 F.3d
1006 (9th Cir. 2011), a campaign contribution case, the
Ninth Circuit reaffirmed that what “‘McCormick
requires is that the quid pro quo be clear and
unambiguous, leaving no uncertainty about the terms
of the bargain.’” Id. at 1013 (quoting United States v.
Carpenter, 961 F.2d 824, 827 (9th Cir. 1992))
(emphasis added). This “‘explicitness requirement,’”
the court explained, “‘serves to distinguish between
contributions that are given or received with the
‘anticipation’ of official action and contributions that
are given or received in exchange for a ‘promise’ of
official action.’” Ibid.
D.C. Circuit. Finally, in United States v. Ring,
706 F.3d 460 (D.C. Cir. 2013), the D.C. Circuit rejected
the argument “that an explicit quid pro quo is required
outside the [campaign] contribution context.” Id. at
466. Writing for the court, Judge Tatel explained that
in McCormick this Court “held that making campaign
contributions can constitute criminal extortion under
the Hobbs Act only when made pursuant to an explicit
quid pro quo agreement.” Id. at 465. But the court
reasoned that “whereas soliciting campaign
contributions may be practically ‘unavoidable’” and
may “implicate First Amendment speech and petition
rights,” other forms of bribery do not. Id. at 466
(citation omitted). In the latter context, the court held
that the district court appropriately instructed the
jury that it was enough that a non-campaign gift was
“‘conditioned . . . upon the recipient’s express or
25
implied agreement to act favorably to the donor.’” Id.
at 468 (emphasis added) (citation omitted).
2. The Minority Position Of The Sixth,
Seventh, And Eleventh Circuits
In conflict with the majority view, the Sixth,
Seventh, and Eleventh Circuits have held that there is
a single quid pro quo standard and that under it, the
Government never needs to prove an explicit promise
or undertaking, even in campaign donation cases.
Sixth Circuit. In United States v. Blandford, the
Sixth Circuit recognized that other circuits have
concluded that Evans “establishes a modified or
relaxed quid pro quo standard to be applied in non-
campaign contributions cases,” in contrast to the
“comparatively strict standard of McCormick [that]
still would govern when the alleged Hobbs Act
violation arises out of the receipt of campaign
contributions by a public official.” 33 F.3d at 695.
However, the court went on, “[w]e read Evans
somewhat differently.” Id. at 696. “Evans, we believe,
merely clarified . . . that the quid pro quo of
McCormick is satisfied by something short of a
formalized and thoroughly articulated contractual
arrangement.” Ibid. In particular, the Sixth Circuit
read Evans to direct that in any Hobbs Act case,
“merely knowing [that] the payment was made in
return for official acts is enough.” Ibid.; see also id. at
697 (standard in campaign cases is “McCormick [as]
informed by Evans”).
Seventh Circuit. The Seventh Circuit embraced
the same position in this case. The court rejected
petitioner’s argument “that extortion can violate the
Hobbs Act only if a quid pro quo is demanded
26
explicitly.” Pet. App. 18a. And it affirmed the district
court’s decision to use the Circuit’s pattern jury
instructions, which are based on Evans. See id. at 19a-
21a; Pattern Criminal Jury Instructions, supra, at
494; see also id. at 495 (Committee Comment stating
that the “quid pro quo can be implied”).
That decision was consistent with United States v.
Giles, in which the Seventh Circuit likewise upheld
Evans-based instructions tracking the Circuit’s model
jury charge, where the defendant was accused of
extorting money for his campaign and himself. See
246 F.3d at 969-70, 971-72.
Eleventh Circuit. In United States v. Siegelman,
640 F.3d 1159 (11th Cir. 2011) (per curiam), the
Eleventh Circuit considered the conviction of an
official who allegedly accepted campaign contributions
in exchange for political favors. The court
acknowledged McCormick’s requirement of an explicit
quid pro quo in campaign donation cases. Id. at 1169-
70. But relying on Justice Kennedy’s concurrence in
Evans, the court nonetheless held that the required
agreement “may be ‘implied from [the official’s] words
and actions.’” Id. at 1172 (quoting Evans, 504 U.S. at
274 (Kennedy, J., concurring)) (alteration in original)
(emphasis added).
B. The First Question Presented Is
Recurring And Important.
The breadth and duration of the circuit conflict
demonstrates that the first Question Presented is
frequently recurring. Moreover, the location of the
line between lawful campaign solicitation and felony
extortion is a question of undeniable practical
importance to candidates throughout the country.
27
See, e.g., McDonnell v. United States, 136 S. Ct. 2355,
2372-73 (2016); McCormick, 500 U.S. at 272.
The present uncertainty also implicates
constitutional concerns of the highest order. Seeking
and making campaign donations implicates
fundamental First Amendment rights. See, e.g.,
McCutcheon v. FEC, 134 S. Ct. 1434, 1444, 1448 (2014)
(plurality opinion). At the same time, using a federal
criminal statute to regulate state campaign finance –
displacing state law and the supervision provided
by the People themselves through the ballot box –
raises “significant federalism concerns.” McDonnell,
136 S. Ct. at 2373. Candidates and donors also have a
Due Process right to know with some certainty what
the criminal law requires of them. See, e.g., id. at
2372-73. And the lack of clarity about the correct
interpretation of an already vague law provides fertile
ground for abuse of prosecutorial power.
All of these constitutional values are at risk when
courts, politicians, and donors are uncertain about
what is permitted and what is criminal. Indeed, this
Court required proof of an “explicit promise or
undertaking” in McCormick precisely to ensure the
line is drawn with “sufficient clarity” in the campaign
contribution context. 500 U.S. at 273. The present
conflict over whether, and when, that requirement
still applies intolerably undermines the clarity this
Court sought to provide.
C. The Seventh Circuit’s Decision Is Wrong.
Certiorari is further warranted because the
Seventh Circuit’s decision is wrong.
This Court was right in McCormick to require an
explicit promise or undertaking before making a
28
federal criminal case out of a politician’s solicitation of
campaign funds from a constituent who may hope or
expect the donation to influence official acts. That is
the only way to ensure that the Hobbs Act reaches the
public official who “asserts that his official conduct will
be controlled by the terms of the promise or
undertaking,” without casting a chill on ordinary
fundraising, in which candidates seek donations from
those they expect to be supportive of their agenda
without explicitly promising that the donation will
control their official conduct. McCormick, 500 U.S. at
273.
To say that this promise must be “explicit” is not
to say that it must be express. Contra Pet. App. 18a-
19a. But an explicit promise must be unambiguous in
its essential terms, particularly with respect to the
defendant’s agreement to engage in an official act in
return for the donation. See, e.g., BLACK’S LAW
DICTIONARY 401 (6th ed. abr. 1991) (defining “explicit”
as “[n]ot obscure or ambiguous, having no disguised
meaning or reservation”). An “explicit” quid pro quo
thus is not satisfied simply because the one party had
some specific official action in mind. It requires that
both parties have agreed to an exchange under which
the official act is unambiguously contingent on the
donation.
When there is no express agreement – when a jury
is asked to read between the lines and decide what the
candidate and donor really meant – it is especially
important that the jury be instructed that it must find
an unambiguous agreement. Here, for example,
prosecutors’ claim that petitioner intended to extort
campaign contributions from racetrack executive
Johnston depended on Johnston’s testimony about
29
what he believed an intermediary really meant, in
conveying what that intermediary took petitioner
really to mean by statements that, on their face, did
not make approval of the pending legislation
contingent on payment of the campaign pledge. See
supra, at 12-13.
It is all too easy to cast entirely lawful interactions
as having an illegal subtext, particularly when jurors
may find the reality of campaign fundraising
distasteful or the defendant is politically unpopular.
An official may say to a donor, “I’ve been very
supportive of your industry and expect we will see eye-
to-eye on many legislative issues in the future. I would
appreciate your support as well.” Did she really mean
“I need a donation or I will hold back on further
support for your agenda?” Or a donor may say, “I’d be
happy to raise money for you, given that we seem to
have the same philosophy when it comes to supporting
our industry. I hope that continues in the next
legislative session when our bill comes up.” Is the
donor proposing an illegal quid pro quo? If the official
accepts the donation, is he agreeing to it?
The risk of misinterpretation is increased
exponentially in cases like this one, when the
Government does not wait for the consummation of an
exchange, but instead charges the defendant with
attempting or conspiring to reach an illegal quid pro
quo agreement. The jury is required to extrapolate
from a defendant’s preliminary, sometimes off-hand,
statements about what he would eventually agree to if
the discussions had proceeded further. When the line
between legal fundraising and illegal extortion lies in
the precise details of what would have been negotiated
– i.e., whether the defendant would have promised to
30
engage in an official act, or merely allowed the donor
to believe that favorable action was likely – requiring
proof of an explicit quid pro quo is necessary to avoid
“cast[ing] a pall of potential prosecution” over common
fundraising interactions. McDonnell, 136 S. Ct. at
2372.
The possibility that innocent statements and
interactions can be misconstrued as implicit
solicitations for an illegal quid pro quo also gives
enormous power to federal prosecutors, a power that
may – in actuality or public perception – be exercised
on the basis of political hostility or for partisan
advantage.
The standard drawn from Evans comes nowhere
near requiring the degree of explicitness demanded by
McCormick and needed to avoid impinging on
important constitutional rights. It permits conviction
based on the defendant’s awareness that a donor
believes he is making a contribution in return for an
official act, without requiring the jury to ask whether
the defendant, in fact, agreed to that deal. In this way,
the Evans-based instruction given in this case and
many others is hardly any different from the
instruction this Court held inadequate in McCormick
itself. Compare supra, at 7 (McCormick instruction),
with supra, at 16 (instruction in this case); contra Pet.
App. 18a (Seventh Circuit claiming that instructions
“track” McCormick).
The sentence in Evans upon which the Seventh
Circuit and other courts have based their jury
instructions was never intended to modify or supplant
the “explicit promise or undertaking” test from
McCormick. Instead, it simply summarized the
Court’s rejection of Evans’ argument that McCormick
31
required proof that the defendant had fulfilled, or
taken affirmative steps toward fulfilling, his promise.
The Court explained that no steps toward fulfillment
were required because the offense was completed upon
acceptance of the contribution, so long as the other
quid pro quo requirements were met. See Evans, 504
U.S. at 268. The Court then paraphrased those other
requirements in words that did not repeat the
McCormick test verbatim. But the imprecision of that
paraphrase has no significance – this Court does not
modify prior precedent in such a casual, off-handed
way, particularly when the issue is not before it.
II. Certiorari Is Warranted To Resolve A
Circuit Conflict Over Whether District
Courts May Disregard Sentencing Disparity
Arguments When They Issue Within-
Guidelines Sentences.
Independently, this Court should grant certiorari
to decide whether a district court is categorically
excused from addressing a sentencing disparity
argument when it provides a within-Guidelines
sentence.
A. The Circuits Are Divided.
This recurring sentencing question has divided
the circuits.
1. The Majority View
The majority of circuits hold that a sentencing
court generally must address all nonfrivolous
sentencing factor arguments, without providing any
exception for sentencing disparity arguments or
within-Guidelines sentences. See, e.g., United States
v. Corsey, 723 F.3d 366, 377 (2d Cir. 2013) (per
32
curiam); United States v. Friedman, 658 F.3d 342, 362
(3d Cir. 2011); United States v. Lynn, 592 F.3d 572,
583-84 (4th Cir. 2010); United States v. Mondragon-
Santiago, 564 F.3d 357, 362-64 (5th Cir. 2009); United
States v. Trujillo, 713 F.3d 1003, 1010-11 (9th Cir.
2013); see also United States v. Bigley, 786 F.3d 11, 16
(D.C. Cir. 2015) (Brown, J., concurring) (“A majority of
circuits require judges to address a defendant’s
nonfrivolous arguments for a sentence below the
advisory Sentencing Guideline range.”) (collecting
cites).
At least two circuits have applied their general
rule to reverse courts that failed to address Section
3553(a)(6) arguments even though the resulting
sentence was within the Guidelines range.
Third Circuit. For example, in United States v.
Friedman, the Third Circuit explained that a “‘district
court need not discuss and make findings as to each of
the § 3553(a) factors if the record makes clear that the
court took the factors into account,’” but that when
“‘one party raises a colorable argument about the
applicability of one of the factors, the court should
respond to that argument.’” 658 F.3d at 362 (citations
and alteration omitted). In the case before it, a
defendant who had received a Guidelines sentence
objected that the district court failed to address his
sentencing disparity argument in favor of a lower
sentence. Id. at 361-62. Finding that there was “no
explicit discussion or indication in the record that it
was considered,” the court held the sentence
procedurally unreasonable and remanded for a new
sentencing hearing. Id. at 363.
Fourth Circuit. The Fourth Circuit likewise
vacated a within-Guidelines sentence for failure to
33
address a sentencing disparity argument in United
States v. Lynn. The defendant complained that the
court failed to address his arguments regarding
several statutory sentencing factors, including Section
3553(a)(6). See 592 F.3d at 583. In vacating the
sentence, the Fourth Circuit explained that “a district
court cannot presume that a within-Guidelines
sentence is reasonable.” Id. at 584. Because there was
“no indication that the district court considered the
defendant’s nonfrivolous arguments prior to
sentencing him, we must find error.” Id. at 585; see
also, e.g., United States v. Slappy, 872 F.3d 202, 208
(4th Cir. 2017) (explaining that if a court rejects a
nonfrivolous sentencing factors argument, it “must
explain why in a detailed-enough manner that this
Court can meaningfully consider the procedural
reasonableness of the . . . sentence imposed”).
2. The Minority Position
Seventh Circuit. This case is emblematic of the
Seventh Circuit’s contrary rule. The court of appeals
did not dispute petitioner’s assertion that “the district
judge did not address [his] contention, based on
18 U.S.C. § 3553(a)(6), that a 168-month sentence
would produce an unwarranted disparity compared
with the sentences meted out to other persons
convicted of corruption in political office.”
Pet. App. 4a. Instead, it affirmed the sentence solely
on the ground that the judge “gave a sentence within
the revised Guidelines range . . . and therefore did not
need to discuss § 3553(a)(6) separately.” Id. at 5a. The
court explained that, in its view, “the Sentencing
Guidelines are themselves an anti-disparity formula,”
such that “to base a sentence on a properly determined
Guideline range is to give adequate consideration to
34
the relationship between the defendant’s sentence and
those of other persons.” Id. at 4a-5a.
The Seventh Circuit has applied this rule and
repeated its rationale in multiple cases, even going so
far as to say that “[c]hallenging a within-range
sentence as disparate is a ‘pointless’ exercise.” United
State v. Chapman, 694 F.3d 908, 916 (7th Cir. 2012)
(per curiam) (citation omitted); see also United States
v. Martin, 718 F.3d 684, 688 (7th Cir. 2013) (per
curiam) (holding that district court did not “err in
declining to address Martin’s argument that a below-
guidelines sentence would be necessary to avoid
unwarranted sentencing disparities” because a
sentence within the Guidelines “‘cannot be treated as
unreasonable in reference to [Section] 3553(a)(6)’”)
(citation omitted); ibid. (disparity argument may
“therefore be passed over in silence”); Annoreno, 713
F.3d at 359 (district court did not err in failing to
address disparity argument because “challenges that
a within-range sentence is disparate [are] ‘pointless’”)
(citation omitted); United States v. Bartlett, 567 F.3d
901, 908 (7th Cir. 2009) (“A sentence within a
Guideline range ‘necessarily’ complies with
§ 3553(a)(6).”).
Tenth Circuit. The Tenth Circuit takes this rule
one step further, excusing the district court from
specifically addressing any sentencing factor
argument if it issues a within-Guidelines sentence.
In the Circuit’s seminal decision, then-judge
Gorsuch rejected a defendant’s argument that because
“he ‘raised a non-frivolous argument implicating the
18 U.S.C. § 3553(a) sentencing factors . . . the district
court was required to address the argument.’” United
States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.
35
2007) (Gorsuch, J.) (citation omitted). The court
reasoned that when a judge issues a within-Guidelines
sentence, the “plain language” of the sentencing
statute requires “only a general statement of the
‘reasons for [the court’s] imposition of the particular
sentence,’” not a response to a defendant’s sentencing
factor arguments. Ibid. (citation omitted); see also id.
at 1202 (holding “that a specific discussion of Section
3553(a) factors is not required for sentences falling
within the ranges suggested by the Guidelines”).
Echoing the Seventh Circuit’s reasoning, the court
further pointed to “the fact that the Guidelines
themselves seek, in some measure, to give meaning to
the considerations embodied in Section 3553(a).” Id.
at 1200.
Although Ruiz-Terrazas was decided before Rita
v. United States, 551 U.S. 338 (2007), the Tenth
Circuit has continued to apply its precedent in more
recent cases. See United States v. Wireman, 849 F.3d
956, 963 (10th Cir. 2017) (reaffirming that “when the
district court has imposed a sentence within the
Guidelines, our cases have noted that the district court
need not specifically address and reject each of the
defendant’s arguments for leniency so long as the
court ‘somehow indicates that it considered . . . the
18 U.S.C. § 3553(a) statutory factors”) (citation and
alterations omitted); see also ibid. (reiterating
“principle” that “a district court need not specifically
address and instead may functionally reject a
defendant’s arguments for leniency when it sentences
him within the Guidelines range”); United States v.
Gantt, 679 F.3d 1240, 1248-49 (10th Cir. 2012)
(“Indeed, one can say as a general rule that when a
court considers what the guideline sentence (or
36
sentencing range) is, it necessarily considers whether
there is a disparity between the defendant’s sentence
and the sentences imposed on others for the same
offense.”) (citing Gall v. United States, 552 U.S. 38, 54
(2007)).
3. The Sixth Circuit’s Conflicting Decisions
There are cases in the Sixth Circuit emphatically
embracing both sides of the circuit conflict. Compare
United States v. Houston, 529 F.3d 743, 752 (6th Cir.
2008), with United States v. Wallace, 597 F.3d 794,
803-05 (6th Cir. 2010).
B. The Second Question Presented Is
Recurring And Important.
As then-Judge Gorsuch observed in Ruiz-
Terrazas, how much a court must say in response to a
defendant’s argument for a lower sentence is a
question “that has become of recurring significance for
litigants and district courts alike in our jurisdiction.”
477 F.3d at 1199. Trial courts sentence tens of
thousands of defendants each year, and disparity
arguments are common.
At the same time, the answer to the Question
Presented has real-world significance. “Requiring a
sentencing court to both consider and address a
defendant’s argument for mitigation also can affect
outcomes.” Bigley, 786 F.3d at 17 n.1 (Brown, J.,
concurring) (emphasis added) (citing Jennifer Niles
Coffin, Where Procedure Meets Substance: Making the
Most of the Need for Adequate Explanation in Federal
Sentencing, CHAMPION, Mar. 2012, at 36). In the study
Judge Brown cited, the author found that within-
Guidelines sentences reversed for failure to address an
argument were altered more than 60% of the time of
37
remand, usually to reduce the sentence, sometimes
dramatically.9
C. The Seventh Circuit’s Rule Is Wrong.
The Seventh Circuit’s categorical rule is also
irreconcilable with the text of the sentencing statute
and this Court’s decisions.
Section 3553(a) unambiguously requires that in
every case, the sentencing court “shall consider”
various factors, including “the need to avoid
unwarranted sentence disparities among defendants
with similar records who have been found guilty of
similar conduct.” 18 U.S.C. § 3553(a)(6) (emphasis
added). It provides no exception for within-Guidelines
sentences. Nor does this Court’s admonition that
sentencing courts should address nonfrivolous
arguments countenance any categorical exceptions.
See Rita, 551 U.S. at 356, 357.
The Seventh Circuit’s observation that the
Guidelines were designed to minimize sentencing
disparities provides no support for its rule either. As
Rita explained, the Guidelines regime contemplates
that every case will involve a “double determination”
of how the statutory sentencing factors should apply
to a particular defendant. 551 U.S. at 347. The
Sentencing Commission is initially charged with
writing Guidelines “that will carry out the[] . . .
§ 3553(a) objectives.” Id. at 348. But the statute then

9
Jennifer Niles Coffin, Where Procedure Meets Substance:
Making the Most of the Need for Adequate Explanation 18 (2016),
https://www.fd.org/sites/default/files/criminal_defense_topics/
essential_topics/sentencing_resources/where-procedure-meets-
substance-making-the-most-of-the-need-for-adequate-
explanation.pdf (updated version of study).
38
requires the judge also to consider all the sentencing
factors in Section 3553(a), including the need to avoid
unwarranted sentencing disparities. Id. at 347-48.
The second look by the sentencing court is intended to
allow that court to decide whether “the Guidelines
sentence itself fails properly to reflect § 3553(a)
considerations” or “the case warrants a different
sentence regardless.” Id. at 351.
Given this leeway, a court cannot just assume that
a within-Guidelines sentence will avoid unwarranted
sentencing disparities. For example, a disparity could
arise because other courts regularly sentence similar
defendants outside the Guidelines. Or a sentencing
judge could permissibly conclude that the Guidelines
themselves could fail to capture the relevant
differences and similarities among defendants. Rita,
551 U.S. at 351.
This case is a perfect example. Petitioner
presented evidence that his within-Guidelines
sentence – which was driven largely by the size of the
campaign contributions discussed and made no
distinction between campaign contributions and
payments for personal enrichment – was at least twice
as long as sentences given to other public officials
convicted on federal corruption charges. See supra, at
17, 19. A sentencing court plainly has discretion to
alter its sentence in light of that disparity. See, e.g.,
Spears v. United States, 555 U.S. 261, 265 (2009)
(per curiam).
Finally, the Court’s observation in Gall v. United
States, 552 U.S. 38 (2007), that the trial judge
“necessarily gave significant weight and consideration
to avoid unwarranted disparities” by calculating the
Guidelines range addressed a sentencing judge’s
39
explanatory obligation when no specific disparity
argument is raised. Id. at 54. The Court then went on
to address whether the judge adequately responded to
the Government’s specific disparity arguments,
documenting the various steps the court took beyond
calculating the Guidelines range, id. at 54-55, none of
which would have been necessary under the Seventh
Circuit’s rule. See also ibid. (noting that “[h]ad the
prosecutor raised the issue [of the seriousness of the
offense], specific discussion of the point might have
been in order”).
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted.
Respectfully submitted,
Leonard C. Goodman Thomas C. Goldstein
53 W. Jackson Blvd. Kevin K. Russell
Suite 1650 Counsel of Record
Chicago, IL 60604 GOLDSTEIN &
RUSSELL, P.C.
J. Wells Dixon
7475 Wisconsin Ave.
Shayana D. Kadidal
Suite 850
DIXON KADIDAL LLP
Bethesda, MD 20814
43 W. 43d St.
(202) 362-0636
Suite 105
kr@goldsteinrussell.com
New York, NY 10036

November 2, 2017
APPENDIX
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
______________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROD BLAGOJEVICH,
Defendant-Appellant.
______________________

No. 16-3254
______________________

Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 08 CR 888 – James B. Zagel, Judge.
______________________

ARGUED APRIL 18, 2017 – DECIDED APRIL 21, 2017
______________________

Before EASTERBROOK, KANNE, and ROVNER,
Circuit Judges.
EASTERBROOK, Circuit Judge. Rod Blagojevich
was convicted of 18 crimes committed while he was
Governor of Illinois. The district court sentenced him
to 168 months’ imprisonment. Our initial opinion
vacated five of the convictions but affirmed the others
and remanded for a potential retrial on the five
vacated charges and for resentencing. 794 F.3d 729
(7th Cir. 2015). Blagojevich asked the Supreme Court
to review that decision, and while the petition for
certiorari was pending the district court put
2a
proceedings in abeyance. After the Supreme Court
denied the petition, 136 S. Ct. 1491 (2016), rehearing
denied, 136 S. Ct. 2386 (2016), the prosecutor
announced that the five vacated charges would not be
retried, and the district judge resentenced Blagojevich
on the remaining 13 convictions.
The sentence was again 168 months. As before,
the judge determined that the Sentencing Guidelines
recommend a term within the range of 360 months to
life, then made some reductions that produced a final
range of 151 to 188 months. (Our first opinion rejected
a challenge to that range. See 794 F.3d at 743.) The
judge recognized that 168 months is a stiff sentence
for non-violent crimes by someone with no criminal
record and unlikely to commit the same kinds of
crimes again, because his impeachment and removal
from office by the state legislature makes him
ineligible for election to a new state office. Ill. Const.
Art. IV § 14. But the judge concluded that the
sentence is justified by the gravity of Blagojevich’s
offenses and the need to deter other public officials
from acting as Blagojevich did.
Our first opinion stated: “It is not possible to call
168 months unlawfully high for Blagojevich’s crimes,
but the district judge should consider on remand
whether it is the most appropriate sentence.” 794 F.3d
at 743. The judge did consider that issue in the new
sentencing and stuck by his conclusion. Despite what
we said in 2015, in this successive appeal Blagojevich
contends that the sentence is unlawfully high. He
makes three contentions: first that the judge should
not have rejected evidence of what Blagojevich calls
his “extraordinary” rehabilitation while in prison;
second that the judge should have revised the sentence
3a
in light of the dismissal of the five vacated counts;
third that the judge failed to address an argument
about sentencing disparities. We consider these in
turn.
Pepper v. United States, 562 U.S. 476, 481 (2011),
holds that “when a defendant’s sentence has been set
aside on appeal, a district court at resentencing may
consider evidence of the defendant’s postsentencing
rehabilitation and that such evidence may, in
appropriate cases, support a downward variance from
the now-advisory Federal Sentencing Guidelines
range.” Blagojevich’s original sentence was imposed
in December 2011, and he entered prison in March
2012. He submitted evidence that between then and
the new sentencing in August 2016 he had helped
other inmates with their educations and set an
example of moral and caring behavior.
The district judge acknowledged this evidence but
found that it did not justify a lower sentence, in large
part because none of the other inmates had known
Blagojevich while he held office and therefore could
not show that he had fundamentally changed his
attitude toward corrupt dealing. The judge
demonstrated that he understood the extent of
discretion under Pepper and did not need to explain at
greater length why he found the new evidence
unpersuasive. See Rita v. United States, 551 U.S. 338,
356-59 (2007) (brief reasons suffice). Blagojevich’s
treatment of fellow inmates may show that outside of
office he is an admirable person, but the court was
entitled to impose punishment that reflects how
Blagojevich behaved when he had a different menu of
opportunities and to deter those who hold office today.
The authority recognized by Pepper belongs to the
4a
district judge. As with many discretionary subjects
the fact that a judge could have ruled otherwise does
not imply that the judge was compelled to rule
otherwise.
Blagojevich’s contention that the vacatur of five
convictions calls for a lower sentence likewise was
considered by the district judge, who observed that the
remaining counts of conviction represent the same
kind of conduct as the vacated counts. We did not hold
that Blagojevich was innocent of the charges in the
vacated counts; we concluded, rather, that the jury
instructions did not separate political horse trading
(Blagojevich’s offer to appoint someone to the Senate
in exchange for the President’s promise to appoint him
to the Cabinet) from extortion and similar crimes
(Blagojevich’s offer to appoint someone to the Senate
in exchange for cash). 794 F.3d at 734. The district
judge, who presided over two lengthy trials, was free
to consider all of the evidence even though the
prosecutor elected not to retry these five counts. The
district judge also observed that the vacatur did not
affect the Guidelines range. Given the standards of
Rita, the judge said enough to justify the sentence.
The third argument about sentencing is that the
district judge did not address Blagojevich’s contention,
based on 18 U.S.C. § 3553(a)(6), that a 168-month
sentence would produce an unwarranted disparity
compared with the sentences meted out to other
persons convicted of corruption in political office. The
problem with this argument is that the Sentencing
Guidelines are themselves an anti-disparity formula,
and the Supreme Court stated in Gall v. United States,
552 U.S. 38 (2007), that to base a sentence on a
properly determined Guidelines range is to give
5a
adequate consideration to the relation between the
defendant’s sentence and those of other persons:
Section 3553(a)(6) requires judges to consider
“the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.” The Court of Appeals stated that
“the record does not show that the district
court considered whether a sentence of
probation would result in unwarranted
disparities.” 446 F.3d at 890. As with the
seriousness of the offense conduct, avoidance
of unwarranted disparities was clearly
considered by the Sentencing Commission
when setting the Guidelines ranges. Since
the District Judge correctly calculated and
carefully reviewed the Guidelines range, he
necessarily gave significant weight and
consideration to the need to avoid
unwarranted disparities.
552 U.S. at 54 (emphasis added). See also, e.g., United
States v. Bartlett, 567 F.3d 901, 907-09 (7th Cir. 2009);
United States v. Boscarino, 437 F.3d 634, 638-39 (7th
Cir. 2006). District judges have discretion to sentence
outside a Guidelines range, but as we observed in
Bartlett such a step comes at the expense of increased
disparities; it is never compelled by § 3553(a)(6) in
order to avoid unwarranted disparities. 567 F.3d at
908-09. The district judge gave a sentence within the
revised Guidelines range he constructed—a range that
Blagojevich does not now contend is too high—and
therefore did not need to discuss § 3553(a)(6)
separately.
6a
In addition to contesting the sentence imposed on
remand, Blagojevich contends that our 2015 opinion
erred to the extent it affirmed any of his convictions.
We do not see a need to elaborate on or depart from
what that decision said about the merits. We offer
only a few words about McDonnell v. United States,
136 S. Ct. 2355 (2016), which postdates our opinion.
According to Blagojevich, McDonnell calls the
reasoning of our first decision into question. Not so.
The only issue before the Court was whether
McDonnell had traded “official acts” for money and
other benefits. The Justices considered the definition
of “official act” in 18 U.S.C. § 201(a)(3) and concluded
that McDonnell’s jury had been instructed incorrectly.
Blagojevich, by contrast, has never contended that the
activities of appointing someone to a vacant seat in the
Senate, signing legislation, or the other activities that
a jury found he sought to profit from, were not “official
acts” of a state’s governor.
Blagojevich’s remaining arguments do not require
discussion.
AFFIRMED
7a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
______________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROD BLAGOJEVICH,
Defendant-Appellant.
______________________

No. 11-3853
______________________

Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 08 CR 888-1 – James B. Zagel, Judge.
______________________
ARGUED DECEMBER 13, 2013 – DECIDED JULY 21, 2015
______________________

Before EASTERBROOK, KANNE, and ROVNER,
Circuit Judges.
EASTERBROOK, Circuit Judge. Rod Blagojevich
was convicted of 18 crimes after two jury trials. The
crimes include attempted extortion from campaign
contributors, corrupt solicitation of funds, wire fraud,
and lying to federal investigators. The first trial ended
with a conviction on the false-statement count and a
mistrial on the others after the jury could not agree.
The second trial produced convictions on 17 additional
counts. At the time of his arrest in December 2008,
Blagojevich was Governor of Illinois; the state
8a
legislature impeached and removed him from office
the next month. The district court sentenced
Blagojevich to 168 months’ imprisonment on the
counts that authorize 20-year maximum terms, and
lesser terms on all other counts. All sentences run
concurrently, so the total is 168 months. Because the
charges are complex, the trials long, and the issues
numerous, an effort to relate many details would
produce a book-length opinion. Instead we present
only the most important facts and discuss only the
parties’ principal arguments. All else has been
considered but does not require discussion.
The events leading to Blagojevich’s arrest began
when Barack Obama, then a Senator from Illinois,
won the election for President in November 2008.
When Obama took office in January 2009, Blagojevich
would appoint his replacement, to serve until the time
set by a writ of election. See Judge v. Quinn, 612 F.3d
537 (7th Cir. 2010). Before the 2008 election, federal
agents had been investigating Blagojevich and his
associates. Evidence from some of those associates
had led to warrants authorizing the interception of
Blagojevich’s phone calls. (The validity of these
warrants has not been contested on this appeal.)
Interceptions revealed that Blagojevich viewed the
opportunity to appoint a new Senator as a bonanza.
Through intermediaries (his own and the
President-elect’s), Blagojevich sought a favor from
Sen. Obama in exchange for appointing Valerie
Jarrett, who Blagojevich perceived as the person Sen.
Obama would like to have succeed him. Blagojevich
asked for an appointment to the Cabinet or for the
President-elect to persuade a foundation to hire him
at a substantial salary after his term as Governor
9a
ended, or find someone to donate $10 million and up
to a new “social-welfare” organization that he would
control. The President-elect was not willing to make a
deal, and Blagojevich would not appoint Jarrett
without compensation, saying: “They’re not willing to
give me anything except appreciation. Fuck them.”
Blagojevich then turned to supporters of Rep.
Jesse Jackson, Jr., offering the appointment in
exchange for a $1.5 million “campaign contribution.”
(We put “campaign contribution” in quotation marks
because Blagojevich was serving his second term as
Governor and had decided not to run for a third. A
jury was entitled to conclude that the money was for
his personal benefit rather than a campaign.)
Blagojevich broke off negotiations after learning about
the wiretaps, and he was arrested before he could
negotiate with anyone else.
The indictment charged these negotiations as
attempted extortion, in violation of 18 U.S.C. §§ 2 and
1951, plus corrupt solicitation of funds (18 U.S.C.
§§ 371 and 666(a)(1)(B)) and wire fraud (18 U.S.C.
§§ 1343 and 1346). The indictment also charged
Blagojevich with other attempts to raise money in
exchange for the performance of official acts, even
though federal law forbids any payment (or agreement
to pay), including a campaign contribution, in
exchange for the performance of an official act. See
McCormick v. United States, 500 U.S. 257 (1991). We
give just two examples.
First, when lobbyists for Children’s Memorial
Hospital sought an increase in reimbursement rates
for Medicaid patients, Blagojevich (through
intermediaries) replied that he would approve an
extra $8 to $10 million of reimbursement in exchange
10a
for a “campaign contribution” of $50,000. Blagojevich
initially approved a rate increase but delayed and then
rescinded it when waiting for a contribution; he was
arrested before any money changed hands.
Second, after the state legislature had approved
an extension of a program that taxed casinos for the
benefit of racetracks—see Empress Casino Joliet Corp.
v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir.
2011) (en banc); Empress Casino Joliet Corp. v.
Johnston, 763 F.3d 723 (7th Cir. 2014)—but before
Blagojevich signed the bill, he attempted to ensure
that John Johnston, who owned interests in two of the
racetracks, fulfilled a $100,000 “campaign” pledge.
Blagojevich had intermediaries inform Johnston that
the bill would not be signed until the money arrived.
Blagojevich was arrested before he signed the bill (and
before Johnston signed a check).
These charges led to guilty verdicts at the second
trial. The charge that produced a guilty verdict at the
first trial was that Blagojevich had lied to the FBI in
2005, violating 18 U.S.C. § 1001. Investigations of
Blagojevich’s associates began shortly after he took
office as Governor in 2003, and by 2005 the FBI
wanted to ask Blagojevich what he knew about his
associates’ conduct. He agreed to an interview in his
lawyer’s office. Agents asked whether Blagojevich
took contributions into account when approving state
contracts or making appointments. He replied “that
he does not track who contributes to him and does not
want to know and does not keep track of how much
they contribute to him.” So an agent testified, relying
on his notes. At Blagojevich’s insistence, the interview
was not recorded, but a jury could find the agent’s
testimony accurate. The jury also concluded that this
11a
answer was knowingly false, because in 2005 and
earlier Blagojevich regularly found out who
contributed how much. (The jury was told to assess the
honesty of this answer based solely on how Blagojevich
had conducted himself from 2003 through 2005.)
Blagojevich now asks us to hold that the evidence
is insufficient to convict him on any count. The
argument is frivolous. The evidence, much of it from
Blagojevich’s own mouth, is overwhelming. To the
extent there are factual disputes, the jury was entitled
to credit the prosecution’s evidence and to find that
Blagojevich acted with the knowledge required for
conviction.
But a problem in the way the instructions told the
jury to consider the evidence requires us to vacate the
convictions on counts that concern Blagojevich’s
proposal to appoint Valerie Jarrett to the Senate in
exchange for an appointment to the Cabinet. A jury
could have found that Blagojevich asked the
President-elect for a private-sector job, or for funds
that he could control, but the instructions permitted
the jury to convict even if it found that his only request
of Sen. Obama was for a position in the Cabinet. The
instructions treated all proposals alike. We conclude,
however, that they are legally different: a proposal to
trade one public act for another, a form of logrolling, is
fundamentally unlike the swap of an official act for a
private payment.
Because the instructions do not enable us to be
sure that the jury found that Blagojevich offered to
trade the appointment for a private salary after
leaving the Governorship, these convictions cannot
stand. Compare Yates v. United States, 354 U.S. 298
(1957), and United States v. Rivera Borrero, 771 F.3d
12a
973 (7th Cir. 2014), with Griffin v. United States,
502 U.S. 46 (1991). (Perhaps because the jury
deadlocked at the first trial, the United States does not
seriously contend that any error was harmless; a one-
line statement in the brief differs from an argument.
Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60-62 (2008) (an
error of this kind is not “structural”).)
McCormick describes the offense as a quid pro
quo: a public official performs an official act (or
promises to do so) in exchange for a private benefit,
such as money. See also United States v. Sun-
Diamond Growers of California, 526 U.S. 398, 404-05
(1999); United States v. McDonnell, 2015 U.S. App.
LEXIS 11889 (4th Cir. July 10, 2015). A political
logroll, by contrast, is the swap of one official act for
another. Representative A agrees with Representative
B to vote for milk price supports, if B agrees to vote for
tighter controls on air pollution. A President appoints
C as an ambassador, which Senator D asked the
President to do, in exchange for D’s promise to vote to
confirm E as a member of the National Labor
Relations Board. Governance would hardly be
possible without these accommodations, which allow
each public official to achieve more of his principal
objective while surrendering something about which
he cares less, but the other politician cares more
strongly.
A proposal to appoint a particular person to one
office (say, the Cabinet) in exchange for someone else’s
promise to appoint a different person to a different
office (say, the Senate), is a common exercise in
logrolling. We asked the prosecutor at oral argument
if, before this case, logrolling had been the basis of a
criminal conviction in the history of the United States.
13a
Counsel was unaware of any earlier conviction for an
exchange of political favors. Our own research did not
turn one up. It would be more than a little surprising
to Members of Congress if the judiciary found in the
Hobbs Act, or the mail fraud statute, a rule making
everyday politics criminal.
Let’s work this through statute by statute.
Section 1951, the Hobbs Act, which underlies Counts
21 and 22, forbids interference with commerce by
robbery or extortion. Blagojevich did not rob anyone,
and extortion, a defined term, “means the obtaining of
property from another, with his consent, induced by
wrongful use of actual or threatened force, violence, or
fear, or under color of official right” (§ 1951(b)(2)). The
indictment charged Blagojevich with the “color of
official right” version of extortion, but none of the
evidence suggests that Blagojevich claimed to have an
“official right” to a job in the Cabinet. He did have an
“official right” to appoint a new Senator, but unless a
position in the Cabinet is “property” from the
President’s perspective, then seeking it does not
amount to extortion. Yet a political office belongs to
the people, not to the incumbent (or to someone
hankering after the position). Cleveland v. United
States, 531 U.S. 12 (2000), holds that state and
municipal licenses, and similar documents, are not
“property” in the hands of a public agency. That’s
equally true of public positions. The President-elect
did not have a property interest in any Cabinet job, so
an attempt to get him to appoint a particular person
to the Cabinet is not an attempt to secure “property”
from the President (or the citizenry at large).
Sekhar v. United States, 133 S. Ct. 2720 (2013),
shows that the phrase “obtaining of property” in the
14a
Hobbs Act must not be extended just to penalize shady
dealings. Sekhar holds that a recommendation about
investments is not “property” under § 1951(b)(2) for
two principal reasons: first, in the long history of
extortion law it had never before been so understood
(similarly, political logrolling has never before been
condemned as extortion); second, the making of a
recommendation is not transferrable. The Court
restricted “property” to what one owner can transfer
to another. By that standard a job in the Cabinet (or
any other public job) is not “property” from the
employer’s perspective. It is not owned by the person
with appointing power, and it cannot be deeded over.
The position may be filled by different people, but the
position itself is not a transferrable property interest.
A position is “held” or “occupied” but not “obtained,”
and under Sekhar something that cannot be
“obtained” also cannot be the subject of extortion.
Section 666, the basis (through a conspiracy
charge) of Count 23, forbids theft or bribery in publicly
funded programs (of which the State of Illinois is one).
Count 23 relies on § 666(a)(1)(B), which makes it a
crime for an agent of a covered organization to solicit
“corruptly . . . anything of value” in connection with a
transaction worth $5,000 or more. “Corruptly” refers
to the recipient’s state of mind and indicates that he
understands the payment as a bribe or gratuity.
United States v. Hawkins, 777 F.3d 880, 882 (7th Cir.
2015). It would not be plausible to describe a political
trade of favors as an offer or attempt to bribe the other
side. What is more, § 666(c) provides that the section
as a whole does not apply “to bona fide salary, wages,
fees, or other compensation paid, or expenses paid or
reimbursed, in the usual course of business.”
15a
Compensation for a job by someone other than a ghost
worker is a “bona fide salary”—and, as we’ve pointed
out, the “usual course of business” in politics includes
logrolling.
The indictment also charged Blagojevich with
wire fraud, in violation of 18 U.S.C. § 1343. That the
negotiations used the phone system is indisputable,
but where’s the fraud? Blagojevich did not try to
deceive Sen. Obama. The prosecutor contended that
Blagojevich deprived the public of its intangible right
to his honest services, which 18 U.S.C. § 1346 defines
as a form of fraud. To call this an honest-services
fraud supposes an extreme version of truth in politics,
in which a politician commits a felony unless the
ostensible reason for an official act also is the real one.
So if a Governor appoints someone to a public
commission and proclaims the appointee “the best
person for the job,” while the real reason is that some
state legislator had asked for a friend’s appointment
as a favor, then the Governor has committed wire
fraud because the Governor does not actually believe
that the appointee is the best person for the job. That’s
not a plausible understanding of § 1346, even if (as is
unlikely) it would be valid under the First Amendment
as a criminal penalty for misleading political speech.
And no matter what one makes of the subject, the
holding of Skilling v. United States, 561 U.S. 358
(2010), prevents resort to § 1346 to penalize political
horse-trading. Skilling holds that only bribery and
kickbacks violate § 1346. So unless political logrolling
is a form of bribery, which it is not, § 1346 drops out.
The prosecutor insists, however, that
Blagojevich’s situation is different and uncommon
because he sought a post in the Cabinet for himself. It
16a
isn’t clear to us that this is unusual. The current
Secretary of State was appointed to that position from
a seat in the Senate, and it wouldn’t surprise us if this
happened at least in part because he had performed a
political service for the President. Ambassadors, too,
come from the House or Senate (or from state politics)
as part of political deals.
Some historians say that this is how Earl Warren
came to be Chief Justice of the United States: he
delivered the California delegation at the 1952
Republican convention to Eisenhower (rather than
Senator Taft) in exchange for a commitment to appoint
him to the next vacancy on the Supreme Court. See,
e.g., Morton J. Horwitz, The Warren Court and the
Pursuit of Justice 7 (1998); Arthur Paulson,
Realignment and Party Revival: Understanding
American Electoral Politics at the Turn of the Twenty-
First Century 86 (2000). Whether this account is
correct is debatable, see Jim Newton, Justice for All:
Earl Warren and the Nation He Made 6-11 (2006), and
Chief Justice Warren himself denied that a deal had
been made (though perhaps a political debt had been
incurred), The Memoirs of Earl Warren 250-61 (1977).
If the prosecutor is right, and a swap of political favors
involving a job for one of the politicians is a felony,
then if the standard account is true both the President
of the United States and the Chief Justice of the
United States should have gone to prison. Yet
although historians and political scientists have
debated whether this deal was made, or whether if
made was ethical (or politically unwise), no one to our
knowledge has suggested that it violated the statutes
involved in this case. (Whether it might have violated
18 U.S.C. § 599, and whether that statute is
17a
compatible with the First Amendment, are issues we
do not address.)
Let us go through the three statutes again.
McCormick holds that a politician’s offer to perform a
valuable service can violate § 1951 as extortion if it
involves a quid pro quo: a public act in exchange for a
valuable return promise. We’ve already explained,
however, why logrolling does not violate § 1951. The
exclusion in § 666(c) for bona fide employment also
applies no matter who gets the job. Who would get the
public job does not matter to § 1346 either. Indeed, the
analysis in United States v. Thompson, 484 F.3d 877
(7th Cir. 2007), applies to Blagojevich too. Thompson
reversed convictions under § 666 and § 1346 that had
been obtained on a theory that a public employee’s
interest in keeping her job meant that she violated
federal law if she performed any aspect of her job in
ways that she knew she shouldn’t. (The asserted error
in Thompson was an incorrect ranking of bidders for a
travel-services contract.) Thompson holds, among
other things, that the interest in receiving a salary
from a public job is not a form of private benefit for the
purpose of federal criminal statutes.
Put to one side for a moment the fact that a
position in the Cabinet carries a salary. Suppose that
Blagojevich had asked, instead, that Sen. Obama
commit himself to supporting a program to build new
bridges and highways in Illinois as soon as he became
President. Many politicians believe that public-works
projects promote their re-election. If the prosecutor is
right that a public job counts as a private benefit, then
the benefit to a politician from improved chances of
election to a paying job such as Governor—or a better
prospect of a lucrative career as a lobbyist after
18a
leaving office—also would be a private benefit, and we
would be back to the proposition that all logrolling is
criminal. Even a politician who asks another
politician for favors only because he sincerely believes
that these favors assist his constituents could be
condemned as a felon, because grateful constituents
make their gratitude known by votes or post-office
employment.
What we have said so far requires the reversal of
the convictions on Counts 5, 6, 21, 22, and 23, though
the prosecutor is free to try again without reliance on
Blagojevich’s quest for a position in the Cabinet. (The
evidence that Blagojevich sought money in exchange
for appointing Valerie Jarrett to the Senate is
sufficient to convict, so there is no double-jeopardy
obstacle to retrial. See Burks v. United States,
437 U.S. 1 (1978).) Because many other convictions
remain and the district judge imposed concurrent
sentences, the prosecutor may think retrial
unnecessary—but the judge may have considered the
sought-after Cabinet appointment in determining the
length of the sentence, so we remand for resentencing
across the board. (The concluding part of this opinion
discusses some other sentencing issues.)
With the exception of the proposed Cabinet deal,
the jury instructions are unexceptionable. They track
McCormick. Much of Blagojevich’s appellate
presentation assumes that extortion can violate the
Hobbs Act only if a quid pro quo is demanded
explicitly, but the statute does not have a magic-words
requirement. Few politicians say, on or off the record,
“I will exchange official act X for payment Y.”
Similarly persons who conspire to rob banks or
distribute drugs do not propose or sign contracts in the
19a
statutory language. “Nudge, nudge, wink, wink, you
know what I mean” can amount to extortion under the
Hobbs Act, just as it can furnish the gist of a Monty
Python sketch.
Blagojevich contends that he was entitled to an
instruction that, if he believed in good faith that his
conduct was lawful, then he must be acquitted. That
is not so; an open-ended “good faith” defense would be
either a mistake-of-law defense in disguise or an
advice-of-counsel defense without demonstrating
advice of counsel. This circuit’s pattern jury
instructions call for a good-faith instruction only when
the statute contains a term such as “willful” that (as
understood for that particular statute) makes
knowledge of the law essential. Pattern Criminal Jury
Instructions of the Seventh Circuit § 6.10 (2012
revision).
Suppose Blagojevich believed that winks and
nudges avoid the McCormick standard. That would be
legally wrong, and the fact that he believed it would
not support acquittal unless mistake of law is a
defense. Blagojevich does not argue that knowledge of
the law is essential to conviction under § 666 or § 1951,
so there’s no basis for a good-faith instruction. See
United States v. Caputo, 517 F.3d 935, 942 (7th Cir.
2008); United States v. Wheeler, 540 F.3d 683, 689-90
(7th Cir. 2008). It is enough for the instruction to
cover the mental elements required by each statute.
That a given defendant wants to apply the phrase
“good faith” to the lack of essential knowledge or intent
does not imply the need for a separate instruction; a
jury’s task is hard enough as it is without using
multiple phrases to cover the same subject. These
20a
instructions defined the statutes’ mens rea elements
correctly; no more was required.
The argument for a good-faith instruction relies
principally on Cheek v. United States, 498 U.S. 192
(1991), but that’s a different kettle of fish. The
Justices read the word “willfully” in a particular tax
law to require proof that the accused knew the law,
which the Justices saw as technical and beyond the
ken of many taxpayers. The word “willfully” does not
appear in any of the statutes that Blagojevich was
charged with violating. Anyway, he does not deny
knowing the rule of McCormick, under which the
exchange of an official act for a private benefit is
illegal, so Cheek would not help him even if it applied.
The “good faith” argument is just a stalking horse for
the contention that the quid pro quo must be stated
explicitly and cannot be implied from hints and
nudges; as we have rejected that contention directly,
it cannot be resuscitated in the form of a “good faith”
instruction untethered from statutory language.
The district judge did give a good-faith instruction
limited to the wire-fraud counts, which have an intent
requirement within the scope of § 6.10. The judge
used the language of § 6.10, as modified to fit the
specific charges, and added one sentence at the end.
Here’s how the instruction wrapped up:
The burden is not on the defendant to prove
his good faith; rather, the government must
prove beyond a reasonable doubt that the
defendant acted with the requisite intent.
The government is not required to prove that
the defendant knew his acts were unlawful.
21a
Blagojevich contends that this instruction’s final
sentence is improper. To the contrary, the sentence
just reminds the jury that mistake of law is not a
defense. The wire-fraud statute requires a specific
intent to defraud but not wilfulness or any other proxy
for knowledge of the law. To the extent that
Blagojevich may think that a need to show intent to
defraud is the same as a need to show knowledge about
what the law requires, he misreads United States v.
LeDonne, 21 F.3d 1418, 1430 (7th Cir. 1994). See
Barlow v. United States, 32 U.S. (7 Pet.) 404, 410-11
(1833) (distinguishing these two subjects). The
district judge was concerned that Blagojevich had
been trying to argue mistake-of-law indirectly even
though none of the statutes requires legal knowledge;
under the circumstances, it was not an abuse of
discretion to add a caution to the instructions. Cf.
United States v. Curtis, 781 F.3d 904, 907 (7th Cir.
2015) (an instruction is proper unless “as a whole [it]
misled the jury as to the applicable law”).
We now take up challenges to the admission and
exclusion of evidence. Each trial lasted about a month,
so there were plenty of evidentiary rulings. On the
whole, the district judge allowed the defense
considerable latitude, but Blagojevich can’t complain
about the rulings in his favor. He does complain about
several that went the prosecution’s way, and we
discuss three of them.
The first concerns a ruling that excluded wiretap
transcripts showing that at the same time Blagojevich
was asking the President-elect for something in
exchange for appointing Valerie Jarrett to the Senate,
he was asking Michael Madigan (Speaker of the state’s
House of Representatives) to support his political
22a
program in exchange for appointing Lisa Madigan,
Michael’s daughter, to the Senate. Blagojevich’s
lawyers contended that his objective all along was to
appoint Lisa Madigan, then (and now) the Attorney
General of Illinois. The district judge did not allow
this wiretap evidence, ruling that it would divert
attention from the indictment’s charges. A bank
robber cannot show that on many other occasions he
entered a bank without pulling a gun on a teller, nor
can a teller charged with embezzlement show how
often he made correct entries in the books.
As we’ve mentioned, the district court gave the
defense a long leash, and the judge was entitled to
conclude that evidence about negotiations with
Speaker Madigan would sidetrack this trial. See Fed.
R. Evid. 403. The Madigan conversations could have
shown that Blagojevich was negotiating with many
people for the best deal; they would not have shown
that any of his requests to the President-elect or Rep.
Jackson was lawful. The judge did permit Blagojevich
to testify that he had planned to appoint Lisa Madigan
all along and that he was deceiving rather than
extorting the President-elect. (In the end, however, he
appointed Roland Burris, not Lisa Madigan.) Some
transcripts admitted for other purposes also contained
Lisa Madigan’s name.
Come the closing argument, the prosecutor used
the judge’s ruling to advantage, stating:
And the Lisa Madigan deal, you’ll have the
calls, November 1st through November 13th.
Go back and look at the calls and see how
many times Lisa Madigan is actually
mentioned . . . . That’s one, and two, how
often is she mentioned in a way that she is not
23a
a stalking horse, and you’re not going to find
it. She was a stalking horse.
Blagojevich contends that this argument violated the
Due Process Clause by so misleading the jury that it
could no longer think rationally about his guilt. See
Darden v. Wainwright, 477 U.S. 168, 181 (1986).
Having persuaded the judge to keep most
Madigan transcripts out of evidence, the prosecutor
should not have argued that the record contains very
few references to her. The paucity of references was a
result of the prosecutor’s strategy, not the defense’s
strategy or a shortage of references in the recordings.
But Darden sets a very high bar for a due-process
challenge to a prosecutor’s closing argument. In the
main, the right response is argument from the defense
or correction from the judge, not reversal on appeal.
Especially not when the trial lasted five weeks and the
prosecutorial comment lasted a few seconds. It is
extraordinarily unlikely that this comment, about
what is (as we have mentioned) a collateral if not an
irrelevant matter, could have affected the jury’s
evaluation of the contention that Blagojevich violated
the Hobbs Act and § 666 by asking the President-elect
or Rep. Jackson for cash (or a lucrative private-sector
job) in exchange for Blagojevich’s appointment of the
new Senator.
The second evidentiary subject concerns a
recording of a conversation between John Harris,
Blagojevich’s chief of staff, and William Quinlan, his
general counsel. Harris testified; Quinlan did not.
During the direct examination of Harris, the
prosecutor introduced a recording of a call between
Harris and Quinlan, during which Harris asked why
Blagojevich had not yet signed the bill extending the
24a
racetrack subsidy, and Quinlan replied: “Ah, let’s just
say, it is what you think.” The district judge admitted
the statement “not for [its] truth but for the effect [it]
had on . . . Harris and the decisions that he ma[de] as
a result of th[e] conversation.” The Federal Rules of
Evidence prohibit hearsay, which is an out of court
statement used to prove the truth of the matter stated,
see Fed. R. Evid. 801(c)(2), but with the judge’s
limitation Quinlan’s statement was not hearsay. The
prosecutor then asked Harris what he understood (he
answered that Blagojevich “was holding the bill
because he wanted to talk to [people] about getting
campaign contributions from the racetrack owners
before he signed”) and what actions he took as a result.
No problems so far.
Once again, though, a problem cropped up in the
closing argument. The prosecutor said this:
John Harris talks to the defendant, and you
got that call at Tab 54, and he asks him what
to do about the racing bill because what he
knows is he has approved it, there’s a green
light. The defendant tells him in that call “I’m
sitting on the bill.” He already had a hold on
that bill as of noon of November the 26th.
What John Harris told you is that the excuse
that he got from the defendant on that call
made no sense to him, it was a red flag. He
said something to him like “I want to see how
it all fits together.” What Harris told you
there is there was nothing to see on this bill
about how it fit in with anything else that was
pending at that time. And so what John
Harris says, “I bet he’s holding this up for a
campaign contribution.”
25a
John Harris goes to Bill Quinlan, he tells him
what his concern is, and he asks him to talk
to the defendant and find out if that’s what
he’s doing. And you got the call at Tab 56
where Bill Quinlan confirms that’s exactly
what the defendant is doing. And what John
Harris testified is once he knew that, he
stepped out, and he left it to the defendant
and Lon Monk [a lobbyist; formerly
Blagojevich’s chief of staff] to figure out. He
knew he wasn’t going to be able to do
anything once he had a hold on that bill
waiting for a campaign contribution.
The language we have italicized is the problem. It
takes Quinlan’s statement as the proposition that
Blagojevich was waiting for money. That’s a hearsay
use. The only proper use of the statement was for the
effect it had on Harris.
Perhaps one could rescue the argument by saying
that the italicized sentence is just shorthand for the
permitted use of Quinlan’s recorded words: Harris
understood them as confirming his belief that
Blagojevich was holding the bill in order to extract
money from racetrack owners. Jurors might have
been hard pressed to tell the difference between
“Quinlan confirmed X” and “Harris understood
Quinlan to confirm X.” This may reflect adversely on
the hearsay doctrine; jurors do not draw subtle
distinctions just because they have been part of the
common law since the eighteenth century. At all
events, “subtle” is the important word. Given the
duration of this trial and the power of the evidence,
the fact that a prosecutor says “Quinlan confirmed X”
when he should have said “Harris understood Quinlan
26a
to have confirmed X” cannot have affected the
outcome. The judge himself seems to have missed the
distinction, despite his earlier ruling. The likelihood
of prejudice from this misstatement is minute, and
without prejudice there’s no basis for a reversal. See
United States v. Richards, 719 F.3d 746, 764 (7th Cir.
2013).
Now for the third evidentiary issue, and the last
we discuss. During trial, the judge admitted evidence
that, before his arrest, Blagojevich had retained the
services of lawyers with experience in criminal
defense. Blagojevich’s appellate brief contends that
the only function of this evidence was to imply
consciousness of guilt. The prosecutor replies,
however, that this evidence served a different
function: to address what seemed to be a developing
advice-of-counsel defense. To this Blagojevich rejoins
that he never raised such a defense, so the evidence
was both irrelevant and prejudicial.
“Advice of counsel is not a free-standing defense,
though a lawyer’s fully informed opinion that certain
conduct is lawful (followed by conduct strictly in
compliance with that opinion) can negate the mental
state required for some crimes, including fraud.”
United States v. Roti, 484 F.3d 934, 935 (7th Cir.
2007). Blagojevich did not mount an advice-of-counsel
defense. He did not fully reveal his actions to any
lawyer, did not receive an opinion that the acts were
lawful, and did not comport himself strictly in
compliance with any such opinion. But he hinted in
that direction. Here is some of his testimony:
• “I immediately had Mary [Stewart] find Bill
Quinlan for me so that I could talk to Bill
Quinlan my lawyer, the governor’s lawyer,
27a
about what do I do about this, how do I handle
this, because I wanted to be very careful that
I don’t get caught up in something that I’m
not aware of that isn’t—that is potentially
wrong and could very well be wrong.”
Tr. 3809.
• “And then I was reconstructing for Bill
Quinlan, my lawyer, basically, you know,
spilling whatever I knew, whatever was
coming into my mind to him about that call,
about that conversation about the
fundraising requests from Patrick Magoon
[the President of Children’s Memorial
Hospital] in connection with Dusty Baker [a
former manager of the Chicago Cubs who was
lobbying on Magoon’s behalf] calling me. And
so I was relating this to Bill Quinlan . . .
because I was basically trying to find out from
Quinlan do you think I said something
wrong? Could I have done—could I have
stumbled into crossing a line of some sort?”
Tr. 4078.
• “Q: Why were you telling Bill Quinlan that?
A: Because Bill Quinlan’s my general
counsel, he’s my lawyer and he was in many
ways, you know, a—he was in many ways—
you know, he—I talked to him about
everything that was remotely connected to
anything that was on legal issues or pending
investigation and all the rest because I
wanted to be careful not to do anything
wrong.” Tr. 4079.
• “Bill Quinlan . . . was my general counsel, and
there was nothing I would do of any
28a
magnitude that I felt I needed to discuss with
my general counsel, my lawyer Bill Quinlan.”
Tr. 4092.
• “Q: Did you also have several conversations
with Bill Quinlan about the Senate seat?
A: Yes. I talked to Bill Quinlan about it
constantly, continuously, almost every day.
Almost every day. Q: Did you have
conversations with Bill Quinlan about
[establishing] a 501(c)(4) [social-welfare
organization] in relation to the Senate seat?
A: I had several conversations with Bill
Quinlan about a 501(c)(4) in relation to the
Senate seat.” Tr. 4112.
The prosecutor objected to all of this testimony,
observing that Blagojevich had not tried to meet the
requirements of an advice-of-counsel defense, but the
judge allowed the testimony (this is one of the many
examples of resolving debatable questions in the
defense’s favor). Having asserted that he consulted
with counsel, Blagojevich opened the door to evidence
that he had other lawyers too yet was keeping mum
about what they told him. That’s an appropriate topic
for evidence and for comment during closing
argument.
Sentencing is the only other subject that requires
discussion. The district judge concluded that the
Sentencing Guidelines recommend a range of 360
months to life imprisonment for Blagojevich’s offenses,
and the actual sentence is 168 months. Instead of
expressing relief, Blagojevich maintains that the
sentence is too high because the range was too high.
The judge erred in two respects, Blagojevich contends:
first, the judge included as loss the $1.5 million that,
29a
he found, Blagojevich had asked Rep. Jackson’s
supporters to supply. See U.S.S.G. § 2C1.1(b)(2). He
calls this finding “speculative.” The judge also added
four levels under U.S.S.G. § 3B1.1(a) after finding that
Blagojevich was the leader or organizer of criminal
activity that included five or more participants or was
“otherwise extensive”. Blagojevich contends that the
many persons he consulted or used as intermediaries
should not count.
The district judge did not err in either respect.
The $1.5 million figure did not come out of a hat; it was
a number discussed in the recordings. That nothing
came of these overtures does not affect the calculation
of loss under § 2C1.1(b)(2), because it is an amount
Blagojevich intended to receive from criminal conduct
even though not a sum anyone else turned out to be
willing (or able) to pay. As for the leadership
enhancement for an “otherwise extensive”
organization: This applies whether or not the
defendant’s subordinates and associates are
criminally culpable. U.S.S.G. § 3B1.1 Application
Note 3. The numbers involved here substantially
exceed five and qualify as “otherwise extensive.”
Any error in the Guidelines calculation went in
Blagojevich’s favor. After calculating the 360-to-life
range, the judge concluded that it is too high and
began making reductions, producing a range of 151 to
188 months. For example, the judge gave Blagojevich
a two-level reduction for accepting responsibility, see
U.S.S.G. § 3E1.1, and took off two more for good
measure, even though he pleaded not guilty, denied
culpability at two lengthy trials, and even now
contends that the evidence is insufficient on every
count and that he should have been acquitted across
30a
the board. That’s the antithesis of accepting
responsibility. The judge reduced the range further by
deciding not to count all of the $1.5 million as loss,
even though he had decided earlier that it is the right
figure. The prosecutor has not filed a cross-appeal in
quest of a higher sentence but is entitled to defend the
actual sentence of 168 months (and to ask for its re-
imposition on remand) without needing to file an
appeal. Removing the convictions on the Cabinet
counts does not affect the range calculated under the
Guidelines. It is not possible to call 168 months
unlawfully high for Blagojevich’s crimes, but the
district judge should consider on remand whether it is
the most appropriate sentence.
The convictions on Counts 5, 6, 21, 22, and 23 are
vacated; the remaining convictions are affirmed. The
sentence is vacated, and the case is remanded for
retrial on the vacated counts. Circuit Rule 36 will not
apply. If the prosecutor elects to drop these charges,
then the district court should proceed directly to
resentencing. Because we have affirmed the
convictions on most counts and concluded that the
advisory sentencing range lies above 168 months,
Blagojevich is not entitled to be released pending these
further proceedings.
31a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
______________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROD BLAGOJEVICH,
Defendant-Appellant.
______________________

No. 16-3254
______________________

Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 08 CR 888 – James B. Zagel, Judge.
______________________

JUNE 5, 2017
______________________

Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
Order
Defendant-appellant filed a petition for rehearing
and rehearing en banc on May 19, 2017. No judge in
regular active service has requested a vote on the
32a
petition for rehearing en banc,* and all of the judges on
the panel have voted to deny rehearing. The petition
for rehearing is therefore DENIED.

*
Judge Flaum did not participate in the consideration of this
petition.
33a
APPENDIX D
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA
v.
Rod Blagojevich
AMENDED JUDGMENT IN A CRIMINAL CASE
Case Number: 08cr888-1
USM Number: 40892-424
Leonard C. Goodman
Defendant’s Attorney
Date of Original Judgment: 12/7/2011
(Or Date of Last Amended Judgment)
Reason for Amendment:
 Correction of Sentence on Remand (18 U.S.C.
3742(f)(1) and (2))
* * *
THE DEFENDANT:
* * *
* was found guilty on count(s) 3s, 7s-13s, 15s-18s
and 24s of the Second Superseding Indictment after a
plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Nature of Offense Offense Count
Section Ended
18 U.S.C. Wire Fraud Under Color 12/9/2008 3s, 7s-13s,
§§ 1343 of Official Right/ 15s-18s
Extortion Under Color
of Official Right
(Attempt/Conspiracy)/
Conspiracy to Solicit
and Solicitation of Bribe
34a
Title & Nature of Offense Offense Count
Section Ended
18 U.S.C. False Statements 12/9/2008 24s
§ 1001
The defendant is sentenced as provided in pages 1
through 8 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
 The defendant has been found not guilty on count(s)
20s
* Count(s) 1-13 & 16-19; 4s-6s, 14s, 19s, 21s-23s
dismissed on the motion of the United States.
It is ordered that the defendant must notify the
United States attorney for this district within 30 days
of any change of name, residence, or mailing address
until all fines, restitution, costs, and special
assessments imposed by this judgment are fully paid.
If ordered to pay restitution, the defendant must notify
the court and United States attorney of material
changes in economic circumstances.
8/9/2016
Date of Imposition of Judgment
/s
Signature of Judge
James B. Zagel, U.S. District Judge
Name and Title of Judge
Date 8/12/2016
35a
IMPRISONMENT
The defendant is hereby committed to the custody
of the United States Bureau of Prisons to be
imprisoned for a total term of:
*One hundred and sixty eight (168) months. Said term
consists of one hundred sixty eight (168) months on
Counts three (3s), seven through thirteen (7s-13s),
fifteen (15s) and seventeen (17s); sixty (60) months on
Counts sixteen (16s) and eighteen (18s); and thirty six
(36) months on Count twenty four (24s) to run
concurrently to each other for a total term of
imprisonment of one hundred and sixty eight (168)
months.
 The court makes the following recommendations to
the Bureau of Prisons: Remain incarcerated at FCI
Englewood, CO. Continue participation in RDAP
while incarcerated.
* * *
MANDATORY CONDITIONS OF SUPERVISED
RELEASE PURSUANT TO 18 U.S.C § 3583(d)
Upon release from imprisonment, you shall be on
supervised release for a term of:
*Two (2) years. Said term consists of two (2) years on
each of counts three (3s), seven (7s) through thirteen
(13s), fifteen (15s) through eighteen (18s) and twenty
four (24s) to run concurrently to each other for a total
term of supervised release of two (2) years.
You must report to the probation office in the
district to which you are released within 72 hours of
release from the custody of the Bureau of Prisons. The
court imposes those conditions identified by
checkmarks below:
36a
During the period of supervised release:
 (1) you shall not commit another Federal, State, or
local crime.
 (2) you shall not unlawfully possess a controlled
substance.
* * *
 (5) you shall cooperate in the collection of a DNA
sample if the collection of such a sample is
required by law.
 (6) you shall refrain from any unlawful use of a
controlled substance AND submit to one drug test
within 15 days of release on supervised release
and at least two periodic tests thereafter, up to 104
periodic tests for use of a controlled substance
during each year of supervised release. [This
mandatory condition may be ameliorated or
suspended by the court for any defendant if
reliable sentencing information indicates a low
risk of future substance abuse by the defendant.]
DISCRETIONARY CONDITIONS OF
SUPERVISED RELEASE PURSUANT TO
18 U.S.C § 3563(b) AND 18 U.S.C § 3583(d)
Discretionary Conditions — The court orders that
you abide by the following conditions during the term
of supervised release because such conditions are
reasonably related to the factors set forth in
§ 3553(a)(1) and (a)(2)(B), (C), and (D); such
conditions involve only such deprivations of liberty or
property as are reasonably necessary for the purposes
indicated in § 3553(a)(2)(B), (C), and (D); and such
conditions are consistent with any pertinent policy
37a
statement issued by the Sentencing Commission
pursuant to 28 U.S.C. 994a.
The court imposes those conditions identified by
checkmarks below:
During the period of supervised release:
 (1) you shall provide financial support to any
dependents if financially able.
* * *
 (4) you shall seek, and work conscientiously at,
lawful employment or pursue conscientiously a
course of study or vocational training that will
equip you for employment.
* * *
 (6) you shall refrain from knowingly meeting or
communicating with any person whom you know
to be engaged, or planning to be engaged, in
criminal activity and from:
 visiting the following type of places:
 knowingly meeting or communicating with
the following persons:
 (7) you shall refrain from  any or  excessive use
of alcohol (defined as  having a blood alcohol
concentration greater than 0.08; or  ), or any
use of a narcotic drug or other controlled
substance, as defined in § 102 of the Controlled
Substances Act (21 U.S.C. § 802) without a
prescription by a licensed medical practitioner.
 (8) you shall refrain from possessing a firearm,
destructive device, or other dangerous weapon.
* * *
38a
 (14) you shall remain within the jurisdiction where
you are being supervised, unless granted
permission to leave by the court or a probation
officer.
 (15) you shall report to a probation officer as
directed by the court or a probation officer.
 (16)  you shall permit a probation officer to visit
you  at any reasonable time or  as specified:
 at home  at work  at school
 at a community service location
 other reasonable location specified by a
probation officer
 you shall permit confiscation of any contraband
observed in plain view of the probation officer.
 (17) you shall notify a probation officer promptly,
within 72 hours, of any change in residence,
employer, or workplace and, absent constitutional
or other legal privilege, answer inquiries by a
probation officer.
 (18) you shall notify a probation officer promptly,
within 72 hours, if arrested or questioned by a law
enforcement officer.
* * *
 (22) you shall satisfy such other special conditions
as ordered below.
* * *
SPECIAL CONDITIONS OF SUPERVISED
RELEASE PURSUANT TO 18 U.S.C. 3563(b)(22)
and 3583(d)
The court imposes those conditions identified by
checkmarks below:
39a
During the term of supervised release:
* * *
 (3) you shall, if unemployed after the first 60 days
of supervision, or if unemployed for 60 days after
termination or layoff from employment, perform at
least 20 hours of community service per week at
the direction of the U.S. Probation Office until
gainfully employed. The amount of community
service shall not exceed 200 hours.
* * *
 (11) you shall not enter into any agreement to act
as an informer or special agent of a law
enforcement agency without the permission of the
court.
* * *
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary
penalties under the schedule of payments on Sheet 6.
Assessment Fine Restitution
Totals $*1300.00 $20,000.00 $
* * *
 The court determined that the defendant does not
have the ability to pay interest and it is ordered
that:
 the interest requirement is waived for the
fine.
 the interest requirement for the is
modified as follows:

* Findings for the total amount of losses are required
under Chapters 109A, 110, 110A, and 113A of Title
40a
18 for offenses committed on or after September 13,
1994, but before April 23, 1996.
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay,
payment of the total criminal monetary penalties is
due as follows:
A * Lump sum payment of $21,300 due
immediately.
* * *
41a
APPENDIX E
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF ) No. 08 CR 888
AMERICA, ) Chicago, Illinois
Government, )
June 9, 2011
vs. )
) 9:43 o’clock a.m.
ROD BLAGOJEVICH,
)
Defendant.
)

VOLUME 30
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES B. ZAGEL
AND A JURY
* * *
[5524]
* * *
INSTRUCTIONS TO THE JURY
BY THE COURT: I’m now going to read the
instructions to you. Don’t bother to take notes unless
you feel some compulsion to write them down, because
you’ll have a book.
Members of the jury, you have seen and heard all
the evidence and the arguments of the attorneys, now
I will instruct you on the law.
And some of these instructions you heard before
because I gave them to you in the beginning, but most
of them you haven’t.
42a
You have two duties as a jury. Your first duty is
to decide the facts from the evidence in this case, this
is your job and yours alone.
Your second duty is to apply the law that I give
you to the facts. You must follow these instructions
even if you disagree with them. Each of these
instructions is important and you must
* * *
[5535] person must knowingly associate with the
criminal activity, participate in the activity, and try to
make it succeed.
If the defendant knowingly caused the acts or
omissions of another, the defendant is responsible for
those acts as though he personally committed them.
The law allowed the government to use various
deceptive and disguised investigative techniques,
including covert or hidden wiretaps. These are
permissible and recognized means of criminal
investigation. Any opinions you may hold regarding
the use of investigative techniques to detect unlawful
activities are not to enter into your deliberations in
any way.
The next series of instructions basically define the
offense and what it is that must be proved.
Counts 1 through 10 of the indictment charge the
defendant with wire fraud.
To sustain the charge of wire fraud as charged in
Counts 1 through 10 the government must prove the
following propositions beyond a reasonable doubt:
First, that the defendant knowingly devised
[5536] or participated in a scheme to defraud the
public of its right to the honest services of Rod
43a
Blagojevich or John Harris by demanding, soliciting,
seeking, asking for, or agreeing to accept a bribe in the
manner described in the particular count you are
considering;
Second, that the defendant did so with the intent
to defraud;
Third, that the scheme to defraud involved a
materially false and fraudulent pretense,
representation, promise or concealment;
And fourth, that for the purpose of carrying out
the scheme, or attempting to do so, the defendant used
or caused the use of interstate wire communications to
take place in the manner charged in the particular
count you are considering.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, you should find the
defendant guilty of the particular count you are
considering.
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, you should find the defendant not guilty of
[5537] the particular count you are considering.
A scheme, a scheme is a plan or course of action
formed with the intent to accomplish some purpose.
A scheme to defraud is a scheme that is intended
to deceive or cheat the public in order to deprive the
public of the intangible right to honest services
through bribery. A public official owes a duty of
honesty and loyalty to act only in the public’s interest.
44a
In considering whether the government has
proven a scheme to defraud it is essential that one or
more of the acts charged in the portions of the
indictment describing the scheme be proved
establishing the existence of the scheme beyond a
reasonable doubt. The government, however, is not
required to prove all of them.
As officials and employees of the State of Illinois,
Rod Blagojevich and John Harris were public officials
who owed a duty of honest services to the People of the
State of Illinois.
A public official commits bribery when he directly
or indirectly demands, solicits, seeks, or asks for, or
agrees to accept something of value from another
person in exchange for a promise for or [5538]
performance of an official act. The proposed exchange
may be communicated in any manner and need not be
communicated in any specific or particular words so
long as the public official intends to seek or accept
something of value in exchange for a specific official
act.
The term “something of value” includes money,
property, and prospective employment.
An official act is any decision or action on any
question which may at any time be pending before the
public official in his official capacity or in his position
of trust. It is not necessary that the exchange or
proposed exchange be communicated in expressed
terms. It is not necessary that the public official have
the power to or did perform the act for which he was
promised or which he agreed to receive something of
value. It is sufficient if the matter was one that was
before him in his official capacity. Nor is it necessary
45a
that the public official, in fact, intended to perform the
specific official act. It is sufficient that the public
official knew that the thing of value was offered with
the intent to exchange the thing of value for the
performance of an official act.
A public official’s demanding, soliciting, [5539]
seeking or asking for, directly or indirectly, or agreeing
to accept a campaign contribution, by itself, does not
constitute bribery, even if the person making the
contribution has business pending before the official.
It is not enough that the contributor is making the
contribution to create good will or with the vague
expectation of help in the future; however, if a public
official demands, solicits, seeks or asks for directly or
indirectly, or agrees to accept money or property
believing that it would be given in exchange for a
specific requested exercise of his official power, he has
committed bribery even if the money or property is to
be given to the official in the farm of a campaign
contribution.
A scheme to defraud must involve the material
misrepresentation, false statement, false pretense, or
concealment of fact.
A misrepresentation, false statement, false
pretense, or concealment is material if it has a natural
tendency to influence or is capable of influencing a
decision or action of the public.
It is not necessary that the misrepresentation,
false statement, false pretense, [5540] or concealment
actually have that influence or be relied on by the
public so long as it had the potential or capability to do
so.
46a
A person acts with the intent to defraud if he acts
knowingly with the intent to deceive, or cheat the
public in order to deprive the public of the public’s
official’s honest services through bribery.
In order to prove a scheme to defraud, the
government does not have to prove that the defendant
contemplated actual or foreseeable financial loss to the
victim of a scheme.
The wire fraud statute can be violated whether or
not there is any actual financial loss or damage to the
victim of a crime or actual financial gain to the
defendant. The government need not prove that the
scheme to defraud actually succeeded.
The government must prove that interstate
communication facilities were used to carry out the
scheme or were an incident to an essential part of the
scheme. In order to use or cause the use of an
interstate wire communication the defendant need not
actually intend that use to take place, you must find
that the defendant knew that this use would actually
occur or that the defendant knew it would [5541] occur
in the ordinary course of business or that the
defendant knew facts from which that use could
reasonably have been foreseen.
The government does not have to prove that the
defendant knew that the wire communication was of
an interstate nature.
Although an interstate communication need not
itself contain a demand, solicitation, or a request for a
bribe it must further or attempt to further the scheme.
Each separate use of interstate communications
facility in furtherance of a scheme defraud constitutes
a separate offense.
47a
A telephone call constitutes a transmission by
means of wire communication in interstate commerce
within the meaning of the wire fraud statute if the call
occurs across state lines.
For purposes of Counts 1 through 10, good faith
on the part of the defendant is inconsistent with the
intent to defraud which is an element of the charges.
In the context of this case, good faith means that
the defendant acted without intending to exchange
official actions for personal benefits.
The burden is not on the defendant to prove [5542]
his good faith; rather, the government must prove
beyond a reasonable doubt that the defendant acted
with the intent to defraud.
The government is not required to prove that the
defendant knew his acts were unlawful.
The next series of instructions deals with the
charged extortion, attempted extortion in this case.
The defendant is charged with attempted
extortion in Counts 11, 12, 16 and 19. To sustain the
charge of attempted extortion as charged in Counts 11,
12, 16 and 19 the government must prove the following
propositions:
First, that the defendant knowingly attempted to
obtain money or property from the person or entity
described in the particular count you are considering;
Second, that the defendant did so by means of
extortion under color of official right as that term is
defined in these instructions;
Third, that the defendant believed that the person
or entity described in the particular count you are
48a
considering would have parted with the money or
property because of the extortion;
Fourth, that the conduct of the defendant [5543]
would have affected or had the potential to affect
interstate commerce.
Again, if you find from your consideration of all
the evidence that each of these propositions has been
proved beyond a reasonable doubt, you should find the
defendant guilty of the particular count you are
considering.
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, you should find the defendant not guilty of the
particular count you are considering.
Extortion under color of official right occurs when
a public official receives or attempts to obtain money
or property to which he is not entitled believing that
the money or property would be given in return for the
taking, withholding, or other influencing of official
action.
Although the official must receive or attempt to
obtain the money or property, the government does not
have to prove that the public official first suggested
the giving of money or property or that the official
asked for or solicited it.
While the official must receive or attempt to
obtain the money or property in return for the [5544]
official action, the government does not have to prove
the official actually took or intended to take that action
or that the initially could have actually taken the
action in return for which payment was made or
49a
demanded or that the official would not have taken the
same action even without payment.
Acceptance by a public official of a campaign
contribution by itself does not constitute extortion
under color of official right even if the person making
the contribution has business pending before the
official. However, if an official receives or attempts to
obtain money or property believing that it would be
given in exchange for specific requested exercise of his
official power, he has committed extortion under color
of official right even if the money or property is to be
given to the official in the form of a campaign
contribution.
The term “property” as used in these instructions
includes any valuable right considered as a source of
wealth.
In order to prove attempted extortion or
conspiracy to commit extortion the government must
prove that the defendant attempted or conspired to
obtain property or money knowing or believing that
[5545] it would be given to him in return for the
taking, withholding, or other influencing of specific
official action.
The exchange or proposed exchange may be
communicated in any manner and need not be
communicated in any specific or particular words as
long as the public official intends to seek or accept the
money or property in return for the taking,
withholding, or other influencing of a specific act.
For the purposes of Counts 11, 12, 14, 16, 18 and
19, good faith on the part of the defendant is
inconsistent with intent to commit extortion, an
element of the charges. In the context of this case,
50a
good faith means that the defendant acted without
intending to exchange official actions for personal
financial benefits.
The burden is not on the defendant to prove his
good faith; rather, the government must prove beyond
a reasonable doubt that the defendant acted with
intent to commit extortion. The government is not
required to prove that the defendant knew his acts
were unlawful.
With respect to the attempted extortion counts,
the government must prove that the [5546]
defendant’s actions affected or had the potential to
affect interstate commerce in any way or degree. This
means that the natural consequences of the
defendant’s actions would have been to have some
effect on interstate commerce, however minimal, this
would include reducing the assets of a business that
customarily purchased its goods from outside the
State of Illinois or actually engaged in business
outside the State of Illinois, if those assets would have
been available to the business for the purchase of such
goods or the conducting of such business if not for the
defendant’s conduct.
It is not necessary for you to find that the
defendant knew or intended that his actions would
effect interstate commerce or that there would have
been any actual effect on interstate commerce.
The defendant is charged in Counts 14 and 18
with conspiracy, conspiracy to commit extortion.
To sustain the charge of conspiracy as charged in
those counts the government must prove the following
propositions:
51a
First, that the conspiracy as charged in the
particular count you are considering existed;
Second, that the defendant knowingly became a
member of the conspiracy with the intention to [5547]
further the conspiracy.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, you should find the
defendant guilty of the particular count you are
considering.
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, you should find the defendant not guilty of the
particular count you are considering.
A conspiracy is an agreement between two or
more persons to accomplish an unlawful purpose. A
conspiracy may be established even if its purpose is
not accomplished.
To establish the existence of the charged
conspiracy and its common purpose or purposes the
government need not establish that there existed a
formal agreement to conspire. The agreement may be
inferred from all of the circumstances and the conduct
of all the alleged participants. The conspiracy may be
proved by circumstantial evidence and reasonable
inferences drawn from that evidence concerning the
relationship of the parties and the totality of their
conduct.
[5548] The government need not prove that the
defendant participated in all of the events of the
conspiracy. The government must prove beyond a
52a
reasonable doubt that the defendant was aware of the
common purpose and was a willing participant.
In deciding whether the charged conspiracy
exists, you may consider the actions and statements of
every one of the alleged participants.
An agreement may be proved from all the
circumstances and the words and conduct of all the
alleged participants which are shown by the everyday.
In deciding whether the defendant joined the
charged conspiracy, you must base your decision only
on what the defendant did or said.
In determining what the defendant did or said,
you may consider the defendant’s own words or acts.
You may also consider the words and acts of other
persons to decide what that defendant did or said and
you may use them to help you understand what that
defendant did or said.
The last set of these instructions, other than some
final ones, concerns soliciting bribes. The defendant is
charged in Counts 13 and 17 with soliciting bribes.
[5549] To sustain the charge of soliciting bribes as
charged in Counts 13 and 17, the government must
prove the following propositions:
First, that the defendant Rod Blagojevich was an
agent of the State of Illinois;
Second, that the defendant solicited or demanded
anything of value from another person;
Third, that the defendant did so corruptly with
the intent to be influenced or rewarded in connection
with some business, some transaction, or series of
transactions of the State of Illinois;
53a
Fourth, that this business or transaction or series
of transactions involved anything of value $5,000 or
more;
And fifth, that the State of Illinois in any one year
received benefits of more than $10,000 under any
federal program involving a grant, contract subsidy,
loan guarantee, insurance, or other assistance.
This one-year period must begin no more than 12
months before the defendant committed these acts and
must end no more than 12 months afterwards.
This is true of all of offenses which have elements
or propositions that have to be proven.
If you find from your consideration of all [5550]
the evidence that each of these propositions has been
proved beyond a reasonable doubt as to particular
count, you should find the defendant guilty of that
count.
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt as to a particular count, you should find the
defendant not guilty of that count.
For purposes of Counts 13, 15, 17 and 20, a person
acts corruptly when that person acts with the
understanding that something of value is to be offered
or given to reward or influence him in connection with
his official duties.
A defendant may act corruptly even if he’s only
partially motivated by the expectation or desire for
reward.
For the purpose of determining whether the
defendant was an agent of the State of Illinois as
54a
charged in the Counts 13, 15, 17 and 20, an agent of
the State of Illinois is a person, including an employee,
officer, or representative who is authorized to act on
behalf of the State of Illinois.
The term “anything of value” may include [5551]
campaign contributions and potential salaries from a
job.
A public official solicitation of campaign
contributions by itself does not constitute bribery even
if the person making the contribution has business
pending before the official.
It is not enough that the contributor making the
contribution create good will or with the vague
expectation of help in the future. However, if a public
official demands, seeks or asks for, directly or
indirectly, or agrees to accept money or property
believing it will be given in exchange for a specific
requested exercise of his official power, he has
committed bribery even if the money or property is to
be given to the official in the form of a campaign
contribution.
It is not necessary that the defendant’s
solicitation or demand for a thing of value in exchange
for influence or reward with respect to state business
be communicated in expressed terms. The proposed
exchange may be communicated in any manner and
need not be communicated in any specific or particular
words so long as the public official intends to solicit or
demand something of value in exchange for influence
or reward with respect to a [5552] specific item of state
business.
For purposes of 13, 15, 17 and 20, again, good faith
on the part of the defendant is inconsistent with
55a
having acted corruptly an element of the charges. In
the context of this case, good faith means that the
defendant acted without intending to exchange official
action for personal benefits. The burden is not on the
defendant to prove his good faith; rather, the
government must prove beyond a reasonable doubt
that the defendant acted with the requisite intent.
The government is not required to prove that the
defendant knew his acts were unlawful.
The defendant is charged in Counts 13, and 17
with conspiracy to solicit or accept bribes. A
conspiracy—and I’m repeating this as I do for each set
of offenses charged—a conspiracy is an agreement
between two or more persons to accomplish an
unlawful purpose.
A conspiracy may be established even if its
purpose is not accomplished.
To sustain the charge of conspiracy to solicit or
accept bribes as charged in Counts 13 and 17 the
government must prove the following propositions:
[5553] First, that the conspiracy as charged in the
particular count you are considering existed;
Second, that the defendant knowingly became a
member of the conspiracy with an intention to further
the conspiracy;
And third, that the overt act was committed by at
least one conspirator in furtherance of the conspiracy.
Again, if you find from your consideration of all
the evidence that each of these propositions has been
proved beyond a reasonable doubt as to a particular
count, you should find the defendant guilty of that
count.
56a
If, on the other hand, you find from your
consideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt as to a particular count, you should find the
defendant not guilty of that count.
The government need not prove that the
defendant participated in all of the events of the
conspiracy, the government must prove beyond a
reasonable doubt that the defendant was aware of the
common purpose and was a willing participant.
It is not necessary that all the overt acts charged
in the conspiracy count of the indictment be [5554]
proved and the overt act proved may itself be a lawful
act. Moreover, you need not to agree unanimously on
which overt act the government has proved.
It is not necessary that all of the acts charged in
the conspiracy count be proved as long as the
government has proved the elements of the conspiracy
as I have described them to you beyond a reasonable
doubt.
The rest of these instructions are general
instructions of what happens next.
If you find the defendant guilty, it will then be my
job to decide what punishment should be imposed.
In considering the evidence and arguments that
have been given during the trial, you should not guess
about the punishment. It should not enter into your
consideration or discussions at any time.
You should not speculate why any other person
whose name you may have heard during the trial or
who is named in the indictment is not currently on
trial before you.
57a
Upon retiring to the jury room you will select one
of your numbers as your foreperson. Your foreperson
will preside over your deliberations and
* * *
58a
APPENDIX F
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF ) No. 08 CR 888
AMERICA, ) Chicago, Illinois
Government, )
December 7, 2011
vs. )
) 10:28 o’clock a.m.
ROD BLAGOJEVICH,
)
Defendant.
)

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES B. ZAGEL
SENTENCING
* * *
[243] THE COURT: Please be seated in the
courtroom.
There are several things I have to say, some have
to do with some remaining legal matters. I intend to
speak them, and then the last thing I do is, I’m going
to ask the defendant to rise and I’m going to announce
the sentence.
One observation that was made in the very
beginning was about general deterrence. The instance
that was given to me by Ms. Gurland was that say if
the penalty for governmental corruption was 5 years
in prison, how many people out there would actually
engage in corruption if they knew that they were going
to spend 5 years in prison.
Probably very few. Some who might think 5 years
in prison is worth compiling a fortune that they can
59a
spend after their release, but not many. But the
example is a flawed example, because a 5-year price
for corruption is not inevitable.
Some are never caught. And then to cite a not so
hypothetical example, after they die, huge amounts of
cash are found in their closets. If you think you’re not
going to get caught, you do it.
The problem with deterrence always is that you
have not only the price to be paid if you are [244]
caught, but the chances of your being caught. And
while economists know how to discount this
probability, we don’t have reliable statistics on the
good way to do it. If you are a corrupt public official
and you are an optimist, there’s a much better chance
you’re going to do it than if you’re a pessimist.
So the issue of who would trade 5 years in prison
to be corrupt is 10 to 20 years, whatever the figure is,
is not the question that we are supposed to ask.
A brief comment on the guidelines in this case.
The official guideline is 30 years to life, 360 months to
life. The government thinks that that guideline is
inappropriate. I agree.
The guideline they propose is 180 months to 240
months, which is, practically, the same as the one the
probation officer fixed, which is 188 months to 235
months. So I’m regarding the 188 to 235 as the
effective guideline in this case.
I don’t think that the defendant is going to object
to the proposition that they don’t want to accept that
the government’s opinion that it should be lower than
360 to life. They, of course, would like it to be a lot
lower than 188 to 235, but, on [245] that, I have not
sustained their position.
60a
There is an issue that has arisen in light of the
allocution, and that is whether the guideline should be
affected by application of acceptance of responsibility,
and the defendant did use the word acceptance of
responsibility.
The rule in the guidelines says, and I quote:
“This adjustment is not intended to apply to a
defendant who puts the government to its
burden of proof at trial by denying the
essential factual elements of guilt if he’s
convicted, and only then admits guilt and
expresses remorse . . . .”
the general policy.
The note also goes on to say that:
“. . . conviction by trial, however, does not
automatically preclude a defendant from
consideration for such a reduction. In rare
situations, a defendant may clearly
demonstrate acceptance of responsibility for
his criminal conduct even though he exercise
his Constitutional right to a trial . . . .”
So the issue is is whether this case falls within two
categories: One, that what he did constitutes
acceptance of responsibility, and, two, [246] whether
or not it comes too late.
The first, and by far the single most important act
that constitutes acceptance of responsibility, is
truthfully admitting the conduct comprising the
offense of conviction.
And this presents, because the facts of this case,
an interesting point of judgment, because the vast
majority of facts in this case were not disputed.
61a
It’s very difficult to dispute what was on the
recordings. And there was no contention that the
recordings had been tampered with. So, basically, the
only way the defendant could – let me correct that.
The only way the defendant could deal with this, for
the most part, for the far greater part, is to say: Yes,
I said all of these things, I’m not denying it, but I didn’t
mean it. I didn’t want these people to do what they
thought I meant. And, also that, to the extent I meant
it, I was maneuvered by my assistance, it was not
really my will.
So the crucial facts in this case are whether he
meant what did happen and whether the
responsibility is less his than those of people who were
around him.
[247] The second one, in many respects, is more
important because that’s what acceptance of
responsibility means.
I believe that he did, in fact, accept the proposition
that what he asked these people to do was, in large
part, if not entirely, what they did. And it’s quite clear
that he’s not blaming them for doing it.
So the first requisite of acceptance of
responsibility truthfully admitting the conduct that in
this particular case apprises the offenses of conviction,
the single exception of Count 24. That, however, does
not end the matter. There is one negative, and that is
one of the things that is a factor is voluntary
resignation from the office of the position held during
the commission of the offense, that’s a negative on his
side.
The more important factor is is that it comes late.
And is there a reason for this not to bar his acceptance
62a
of responsibility? And, I think, in this particular case,
there is a reason, and that had to do with his position.
It’s an awful Hill to climb as Governor to admit
this. And bear in mind, most acceptance of
responsibility issues arise in cases where there’s [248]
absolutely no one in the courtroom and no one in the
public, as a whole, present, maybe some family
members, when the defendant makes an attempt to
accept responsibility. The world doesn’t care. And in
a lot of those cases, I have noticed that frequently the
family doesn’t show up because the person who is
accepting responsibility doesn’t want to do it in front
of them.
And I think in this particular case, his particular
status as the Governor and an extremely well-known
public figure, made it so difficult for him to do so that
this rationally explains his delay in doing it.
The reason, incidentally, I am according him this
benefit from his holding the office of Governor is
because, in some respects, his holding the office of
Governor, in fact in many respects, holding the office
of Governor is responsible for some of the things I’m
going to say and for the sentence I will ultimately
impose, because abuse of the office of Governor, as I
will mention briefly, is more damaging than the abuse
of any other office in the United States except
president.
So I am giving him the 2 points for acceptance of
responsibility, which means that, for [249] my
purposes, the effective guideline is 151 months to 188
months.
Having said that, I have some comments on the
defense position. There was a persistent reference to
63a
statements made to the defendant from which during
trial he claimed he could infer that his acts were not
illegal.
And as I said before, he did manage to present this
claim to the jury even though he had no advice of
counsel defense. He could not make a legitimate
advice of counsel defense because he never gave
enough details for a lawyer to give competent advise
and he did not ask for legal advice. He asked,
essentially, the same kinds of questions to non-
lawyers, which is a pretty good indication that he
wasn’t seeking legal advice.
He asked if something was okay. Tactical advice
is what he sought, not legal advice. He did pronounce,
on a few occasions, that what he did had to be legal,
but none of it was focused on any particular issue.
He never asked if something, some specific plan
was legal at a pertinent time. I don’t recall a single
instance in which he specifically asked a lawyer if
something was legal. A simple question [250] which
he, a lawyer, knew would cause a lawyer to ask, in
turn, “what exactly do you intend to do?”
The lawyer defendant in this case understood that
he did not want to ask the question “is it legal,”
because the answer might stop some of the schemes in
their tracks.
A few of his plans may, arguably, have been legal.
The ones he was convicted of were not. In the end, his
defense morphed into a claim that he did not believe
his proposals were “quid pro quo,” which he did know
was an illegal exchange. The jury did not believe him
and neither do I.
64a
It’s true that one adviser once said that they did
lead the Governor to take certain steps; Harris said so.
If that’s asked as a general question to any governor’s
Chief of Staff, and I’ve known a few, or general
counsel, and I’ve known a few of them, too, I doubt that
there is any one of them who will tell you that they
never did that from time to time, but this is not the
situation here.
The Governor was not marched along this
criminal path by his staff. He marched them and
ruined a few of their careers, and, more than that, in
the process, except for his brother, and that recently
he seems not to have noticed this.
[251] He was told by Harris and Quinlan that he
should not deal for any personal benefit, not even joke
about it. He denies hearing this or perhaps denies
remembering it, but I’m sure he did hear it, and I
believe he ignored it because it was inconsistent with
one of his primary goals. Having heard that is one
reason I believe he decided never to ask for a lawyer’s
opinion on his scheme.
He talks about his schemes as, I think the word is
“lengthy musings,” I think that’s the word he uses in
one of his briefs. So he asked the jury and now me to
believe that he made the phone calls and arranged
meetings with others so that they could hear his
musings. “Musings” are the kinds of statements made
when somebody wanders into your office maybe at the
end of the day and you and your staff have exchanged
idle thoughts and speculations. Musings are talks
without purpose, not the material of arranged
meetings and repeated phone calls.
65a
The jury, and I, did not believe these were
musings. I do accept his apology for the position he
took in his testimony in assigning responsibility for his
acts to others. He probably should have named more
people than he did, but I suspect he may very well
regret the fate of others.
[252] Every Governor, even our worst, helps
someone and does good things for people. You never
actually know whether that comes from personal
commitment or from a calculation of political benefit.
In my calculus, it doesn’t matter. If something is good,
it’s good regardless of why it was done.
I do also believe that what he did for children’s
health was motivated by a true concern for the welfare
of children and these actions, in my mind, a mitigating
factor.
I’m about to say some things, and before I say
them I want to tell you that they remind me of a
maxim known by many lawyers, doctors, reporters,
editors, and judges: pretty much we all know how to
be kind to people, and pretty much we all know how to
tell the truth, but very few of us know, and I don’t, that
there are some times when you cannot do both at the
same time.
The letter submitted to me by the defendant tend
to emphasize his devotion to his children, a couple to
children, in general. I don’t doubt his devotion to
children. But this is not an unusual situation.
Counsel for the defense said this is exceptional. It is
not exceptional, it’s not exceptional in my own
experience. I see case after [253] case where good
fathers are also bad citizens and wind up in jail. There
is no question that the innocent children of felons
66a
suffer, and I am sympathetic to the plight the
defendant’s children have endured over the last 3
years.
And this is tragic, but, as he admits, the fault for
this lies with the defendant alone. Why did the
devotion as a father not deter him from engaging in
such reckless conduct.
I know the thoughts of children weigh heavily on
his mind as he faces punishment, but now it is too late.
The same thought should have stopped him from even
approaching the line that divides lawful from criminal.
If it is any consolation to his children, he does not
stand convicted of being a bad father.
The fact is, the defendant did not want to take the
risk for being told that a particular plan was illegal.
So he did not ask for legal research to be done, nor did
he do it on his own. Instead, he preserved his ability
to claim that he did not know that something was a
crime. In effect, he allowed his family to assume a
different risk, the one that he would be caught and
convicted.
Some of these letters discuss the good things [254]
the defendant has done, most of them are from people
who personally benefited from acts and specific favors
conferred by the government, and, in some cases, by
the General Assembly.
Their gratitude is actually reasonable and
appropriate, but the request for exceptional leniency
are based on the idea that someone who does good
things cannot also do bad things or that the good
directly offsets the bad.
Very few criminals are all bad. Many are decent
spouses, parents, family members, good friends,
67a
sometimes good employees. But in a criminal court,
the judgments are made upon the criminal acts, usual
the worse things that the accused has done. Good
works do not offset criminal misconduct, though they
may mitigate it. If this were not so, there would be a
great moral hazard, a criminal might decide that if he
does enough good deeds, he will get a pass on his
criminal conduct.
We see this, occasionally, in cases of criminal
gangs who build basketball courts for the community
and contribute in other ways. It’s not enough.
Whatever good things you did for people as
Governor, and you did do some, I am more concerned
[255] with the occasions when you wanted to use your
powers to do things that were good only for yourself.
Some of the letters, I have to say, particularly
some of those from people who held highly responsible
positions in life, fall into a category properly described
in an old phrase seldom used these days, and I quite,
“damning with faint praise.” They speak about
specific instances where something exemplary was
done, or character traits they admire, without ever
endorsing your general character.
There are letters from people who have known you
for a very long time. I have found them thoughtful in
the description of some of your characteristics as a
child and an adult. These views suggests that your
personality may not be entirely suitable for public
service. Much of what I heard in the recordings and
both heard and saw in your testimony support this
view, some unfortunate elements of immaturity. The
willingness to admit, even to yourself, that you have
done something seriously wrong until you are forced to
68a
do so, blaming others for your misconducts, the
impatience, the endless talking, the lack of focus, and
the need [256] for praise and plaudits say from people
whose grandmothers got a free ride on the free bus.
And, in all honesty, this observation is not very
different from a mitigation argument offered by your
own lawyers. One theme from the defense is that you
were just the person who got elected, did not know how
to pick the right staff, were unable to see that the staff
was leading you down the wrong path. They’re not
traits suitable for a Governor.
I have called you Governor when I spoke to you.
Your own lawyers don’t, the government doesn’t. By
protocol you are entitled to that honorific if, for no
other reason, you won election as Governor twice. But
I also do it because it serves as a reminder to those of
us who vote and those of us who don’t. It reminds the
voters of the maxim the American people always get
precisely the government that they deserve. Your case
is another lesson for us.
I’m going to comment also on the way you
responded to the indictment. Although, I have to tell
you that I accept your apology. I think you understand
how wrong it was, but at the time you thought it was
appropriate to reduce this case to a personal battle,
much like a political campaign [257] between you and
the prosecutor in this district.
To you this case was not to be decided on
admissible evidence by an impartial jury, but on the
public perception of the deeds and personalities of
yourself and the prosecutor.
In a political campaign contribution, this tactic
had a great benefit for you because you faced the
69a
prosecutor who could not speak publicly after the first
statements when the indictment was announced. So
you are campaigning against somebody who could not
put up his own billboards and give his own interviews.
You sought to lead the general public for whom the
jury would be drawn to think better of you than they
think of the prosecutor.
And the general public really has no obligation to
be impartial in an election or even to pay any attention
to a political contest. The jury, though, does have an
obligation of impartiality, does have to pay attention
to the evidence, and decide on the basis of the
evidence, not on emotion nor personal preference.
These were foolish and unworthy tactics in
treating the charges as you did. And the reason I
mention it now is it evinced a disrespect for our
citizens, Illinoisans all, called to serve as [258] jurors.
I cannot comprehend that you seem to argue at
first, and I think even underline the argument, the
proposition that even if guilty, there was no harm to
Illinois. This is not the kind of case where, for
example, a state employee plans to break into CMS.
For those of you who are not familiar with Illinois
government, it’s the Central Management Services.
Seeks to break into a CMS garage to steal state-owned
vehicles and is foiled before he can use his bolt cutter
on the lock. There is no monetary loss to the
government. The harm here is not measured in the
value of money or property. The government makes
an argument that, in fact, people were harmed
monetarily. They make that argument, which I think
is a valid one, almost as an afterthought, because the
government’s position, and I think the position that
ought to be everyone’s position, is not how you
70a
measure what happened here in the value of money or
property. This is one of the principal reasons why the
original guideline 360 to life was just not appropriate.
Able of loss really did not encompass the real damage
in this case. The harm is the erosion of public trust in
government.
[259] In your argument, your attorneys rightly
agree that the financial harm is not the full measure
of damage. Confidence in and trust of government is
diminished.
If confidence in the integrity of the highest
ranking officer of the state, a sovereign officer, is lost
or diminished, things will get worse and not better.
In the United States we don’t much govern at
gunpoint. We require willing and creative cooperation
and participation to prosper as a civil society. This
happens most easily when people trust the person at
the top to do the right thing most of the time and, more
important than that, to try to do it all of the time.
If a state Senator takes a bribe, that’s one person
out of 59, even if a lesser state-wide officer can go bad,
people accept and move on without much worry. You
are not to be compared with those who hold lesser
positions in government, even, for example, the head
of a major co-department in the State of Illinois.
You, as the Governor, are seen to control all of
them, though I can see, in practice, you don’t. You are
seen to control what happens. The image of [260]
corruption in a Governor seeps into the fabric of nearly
all of them. When it is the Governor who goes bad, the
fabric of Illinois is torn and disfigured and not easily
or quickly repaired. You did that damage.
71a
Sentence: On counts 3, 5 through 13, 15 to 17, 21
and 23, 168 months in the custody of the Bureau of
Prisons.
On counts 18, 23, 60 months in the custody of the
Bureau of Prisons.
On Count 24, 36 months in the custody of the
Bureau of Prisons.
All of these sentences are to run concurrently.
These are to be followed by a period of supervised
release of 2 years, and I believe on all counts they are
to run concurrent, as well.
Within 72 hours of your release from custody, you
will report to the Probation Office in the district where
you are released. The standard conditions of this court
will apply under those circumstances. Although, I
think it is unnecessary, I have to order standard drug
testing, random drug testing not to concede 104 tests
per year.
You will have to submit to a DNA test, if ordered.
You may not possess a firearm or other [261]
destructive device while on supervised release.
You may not commit a crime under the law of any
jurisdiction, state, municipal or federal.
I am imposing a fine on of $20,000. If the payment
has not been made by the time you have been released,
you shall pay the fine in installment payments that
are at least 10 percent of your monthly income.
This is a case in which the nature of the charges
and the proof does not justify restitution. I regard
restitution as inapplicable in this case.
There’s a special assessment of $100 for each
count, that is an assessment of $1,800.
72a
With that, I want the defendant and counsel to
come to the lectern.
(Brief pause).
THE COURT: First I want to inform the
defendant that you have the right to appeal both the
convictions and the sentence. If you want to do so,
speak with your lawyer, they’ll tell you how to go about
doing it.
Surrender date?
MS. GURLAND: Your Honor, what we had
spoken about is a request for February 15th, which is
I think about 60 days.
[262] THE COURT: Yes, it has to be at least 42
days out because they won’t be able to designate by
then. February 15th is fine.
MR. SOROSKY: Could we make it the 16th?
THE COURT: Sure.
MS. GURLAND: And there’s a couple of other
housekeeping things, Your Honor. Because of the
uncertainty about whether defense would be above or
below the – what I understand to be the 10-year cut off
for the designation of camp versus low, we would like
Your Honor to make a recommendation, but if we
could have a little bit of time to think about what that
recommendation would be, we would very much
appreciate it.
THE COURT: I’m likely to agree with that. You
can have the time. What time do you want?
MS. GURLAND: When would you like us to get
back to you? Could we get back to you tomorrow?
MR. SOROSKY: Could we make it Friday? Is
Friday okay?
73a
THE COURT: Friday is fine.
Anything from the government.
MR. SCHAR: Judge, several things.
We have a special assessment in the fine, in legal
language, do you want it payable immediately [263]
with the additional understanding –
THE COURT: Yeah, it is due and payable
immediately.
MR. SOROSKY: Could we have pay that Friday?
THE COURT: $1800, Friday is fine.
MR. SCHAR: And the $20,000?
THE COURT: $20,000 is an issue that we have to
determine later if there’s an obvious inability to pay it.
MR. SCHAR: I think there are two counts
remaining. We move to dismiss those two remaining
counts. There were two hung counts.
THE COURT: I remember that. Do you
remember the number of the counts?
MR. SCHAR: I’ll get them to you.
THE COURT: That will be fine.
MR. SCHAR: And just for record purposes,
Judge, assuming even if for some reason there was an
error in the guidelines, your sentence will be as it is
today.
THE COURT: My sentence would be as it is
today.
MR. SCHAR: And although you have not hit on
every single mitigation argument, because obviously
there were many, you have taken them all into [264]
account in coming to your sentence?
74a
THE COURT: I believe that I have read every
paper submitted to me, part of that was due to the
nature of the case, and part of it was due to the fact
that they were so long that there was a risk that my
concentration might have lapsed, particularly if I was
reading them at night. So I read them all twice. And
while I would not contend that I could recite most of it
from memory, I think I could come pretty close, and
yes, I considered all of them.
Anything else?
MR. SCHAR: No, Judge.
MR. SOROSKY: Is there any time you want us to
come in on Friday?
THE COURT: Talk to Mr. Walker.
The court is adjourned.
THE CLERK: All rise.
(Which concluded the proceedings had on this
date in the above entitled cause.)
75a
APPENDIX G
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF ) No. 08 CR 888
AMERICA, ) Chicago, Illinois
Government, )
August 9, 2016
vs. )
) 10:35 o’clock a.m.
ROD BLAGOJEVICH,
)
Defendant.
)

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES B. ZAGEL
RE-SENTENCING
* * *
[51]
* * *
THE COURT: About 4 and a half years ago, I
sentenced the Governor to 168 months in prison, 2
years of supervised release, $20,000 fine, and a $1800
special assessment, part of which is now no longer
applicable.
In doing so, I considered what I believe significant
damage, and significant damage that was the result of
the Governor’s actions inflicted on the People of the
State of Illinois, which included the erosion of public
trust in government that this state, in particular, has
suffered time and again. Against these harms, I
balanced the legitimate good, and there was some,
that the Governor had done in his career in public
76a
service, and his remorse, and his acceptance of
responsibility for his crimes.
There is a discussion, which I think is not dealt
with and may never be dealt with, in terms of the exact
standard and use to be made of acceptance of
responsibility. I believe [52] because acceptance of
responsibility was made in my court, I am unwilling to
alter it. There is another court that might seek to do
so, but I leave that to one side.
What I did say, in the period after the verdict was
reached and after sentence was imposed, I said, and I
quote:
“. . . the fabric of Illinois is torn and disfigured
and not easily or quickly repaired.”
I still believe that is contained in the
circumstances that happens in the jurisdiction where
something of this sort occurred, and occurred in public
amongst the vast majority of us. It’s not easy to say,
“well, that’s over with and we can move on to the next
case,” but the next cases become difficult because the
fabric of the State is torn and trust among its citizens
is diminished, not wholly, maybe not forever, but
during a period that still, in my view, exists.
Today, the defendant stands before me seeking a
reduction of his sentence to 5 years incarceration, plus
supervised release. He argues that this reduction,
which, in the context of this case, is dramatic, he
argues that this dramatic reduction is justified
because the 5 charges that the Court of Appeals
missed were, and I quote:
“. . . the centerpiece of the government’s case.”
and thus, he argues, the only charges that allege
that the Governor abused his office for personal
77a
benefit. In fact, Blagojevich argues that the remaining
counts only relate [53] to his attempts to raise
campaign funds, which he characterizes as the folly of,
and I quote:
“. . . an overly zealous of the politician seeking
to advance his political goals.”
He claims he did not accept cash bribes or use
fund-raising money for personal enjoyment, nor did he
engage in trades that counter to the interest of the
people of Illinois, for this reason, he sees himself, the
defendant, as less morally culpable than some of our
previous politicians who have been convicted of
corruption crimes and sentenced to lesser prison
sentences.
I don’t draw such a clearer moral distinction
between the abuse of offer for personal gain and the
abuse of office for political purposes, like campaign
raising.
The defendant remains convicted of activities that
were plainly beneficial to him, both politically and
personally. I think it’s important to note that, as the
government does, that the defendant’s own recorded
conversations reveal that he intended to trade the
Senate seat for money to solve his personal, legal, and
financial problems.
Evidence also shows that at the time he was
trading official acts for campaign funds, he had no
intention of actually running another campaign. The
same three shakedowns that I considered at the
original sentencing are still at issue here. The Senate
seat trade and the schemes involving the race [54]
tracks and Children’s Memorial Hospital.
78a
In Counts 7 through 11, which involve the attempt
to trade the Senate seat, would’ve resulted in millions
of dollars put toward a new 501(c) organization where
the Governor could have worked for a generous salary
after leaving office.
So I do not believe these activities were conducted
only for political gain. As in many cases, political and
personal gains were very much intermingled here.
Although it’s not necessary in this case, I may also
consider conduct of which the defendant was charged
but acquitted as long as there’s a preponderance of the
evidence supporting that charged conduct took place.
Even if I did consider the remaining counts to be
of a less serious nature, it may not significantly impact
my decision because, as noted by the Court of Appeals,
the Governor’s claims of innocence on appeal were,
quote, “frivolous,” and evidence of his guilt on all
counts is, quote, “overwhelming.”
The Governor does argue, and has continued to
argue, that he has demonstrated extraordinary
rehabilitation while in prison and has submitted a
number of letters from fellow inmates supporting that
claim. I don’t dispute that the Governor may have
been, and may, for all I know now, may be a model
prisoner with no disciplinary infractions, and I am also
willing to accept that he has become a tutor and
mentor to many [55] of his fellow prisoners.
The letters from the inmates extol Blagojevich’s
respect for and truth in the correction system, among
other qualities which has revealed to them. They
write of their admiration for the Governor and they
praise his efforts to support and assist them. These
prisoners were very close, or reasonably close, to
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Blagojevich, but they also knew him only from the
inside of prison. They think of him as a good man, but
they don’t know him, and they don’t know him in the
context of a powerful officeholder in Congress and in
Illinois. They did not hear the evidence of the
Governor’s former life and activities.
The governor is clearly devoted to his family,
especially his wife and two daughters. And the toll
that the Governor’s incarceration takes on his family,
especially his children, is not lost on me, and I don’t
imagine that any judge could lose it.
I do not doubt that the Governor is a loving father
and that his children miss him deeply in his absence.
It is an unfortunate reality that all prisoners, even
those who are good parents and good spouses, all of
them have innocent family members who are made to
suffer the consequences of their loved one’s crime. I
am sympathetic to them and how painful this
experience has been to them, but I said 4 years ago,
the fault lies on the Governor and no one else at that
time. He was [56] aware that illegal conduct could
land him in jail, away from his wife and children, and
he went ahead with it anyway.
It seems that the Governor has used his time in
prison well, studying music, working in the library,
pursuing his appeal. This is decent behavior, and yet,
I expected nothing less.
When I sentenced the Governor 4 years ago, I had
four factors to consider. My task was to impose a
sentence sufficient but not greater than necessary.
And the issues most significant were that the penalty
should reflect the seriousness of the offense, promote
respect for the law, and provide just punishment for
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the offense, to afford adequate deterrence to criminal
conduct, to protect the public from further crimes of
the defendant, and the last having to do with “certain
training,” I think, is not relevant to this particular
case.
And it may well be that protecting the public from
further crimes, if he has none, limits the significance
of that standard, but reflecting the seriousness of the
offense, promoting respect for the law, providing just
punishment, and adequate deterrence are all still
significant factors in this case.
So basically, we are dealing with the objectives in
little a and little b. The fact that the Governor has
been productive, engaged and well based while in
prison is laudable, [57] but it is not especially germane
to my decision today.
As I have discussed, I find it beyond dispute that
the Governor’s offenses were quite serious, to say
nothing of his flagrant disrespect for the law.
Evidence showed that the Governor delayed measures
that were in the public interest while he conducted
illegal horse trading for his personal benefit, then lied
to the FBI about those activities. Ironically, this is a
man who ran for office on a platform of restoring
integrity to Illinois politics. These are serious crimes
having grave impact on the people of Illinois who
already tax faith in their government.
The Court of Appeals noted, and I quote this:
“. . . it is not possible to recall 68 months
unlawfully high for Blagojevich’s crimes.”
The Governor’s good behavior in prison and his
acceptance of responsibility, to some level, back in
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2011, do not erase the harm he inflicted on the people
of Illinois.
I also think the deterrence concerns in this case
are paramount. I don’t believe, as the Governor
argues, that only Congress or the Supreme Court can
deter this kind of conduct. One role of the trial court
is to impose a sentence that we hope deters would-be
law breakers from engaging in illegal activity, and in
a case such as this one with high stakes, that effect the
entire State, deterrence can justify a significant
sentence.
[58] Now, what should that sentence be? The
sentencing range under the guidelines was not
affected by the removal of 5 counts. In fact, the
current sentence of 168 months is still significantly
below the minimum recommended sentence in the
guidelines.
Base offense level here is 14, as before. I add 2
points for more than one bribe or extortion, 16 points
for a lost value of $1.625 million, 4 points because
Blagojevich was a public official, 4 points for being an
organizer or leader of an extensive criminal activity,
and 2 points for obstruction of justice.
For my purposes in this court, I did subtract 2
points for acceptance of responsibility. I do not
retrieve from that.
This results in a total offense level of 40.
Pursuant to the guidelines, the appropriate sentence
range is 292 at bottom to 365 months. I regarded that
as much too high in this case.
I am imposing the same sentence of 168 months
over 4 years – sorry. 168 months, over 4 years of which
have already been served. The period of imprisonment
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will be followed by a term of 2-year supervised release.
And I am following the probation officer’s
recommendations as to the conditions of that release.
During his release, the defendant shall not
commit another federal, state, or local crime, or
unlawfully possess a [59] controlled substance.
Shall cooperate in the collection of a DNA sample,
if such collection is required by law.
He shall refrain from possessing a firearm or
destructive device or other dangerous weapon.
He shall remain within the jurisdiction where he’s
being supervised unless granted permission to leave
by the Court or a probation officer.
He shall report to a probation officer as directed,
and shall permit a probation officer to visit him at any
reasonable time at home, work, school, or community
service, and any other location specified by the officer.
He shall permit confiscation of any contraband
observed in plain view of the probation officer.
He shall promptly notify a probation officer within
72 hours of any change in residence, employer, or work
place. And absent constitutional or other legal
privilege, answer inquires from a probation officer.
He shall promptly notify a probation officer within
72 hours if arrested or questioned by a law
enforcement officer.
He shall, if unemployed after the first 60 days of
supervision or for 60 days after termination or layoff,
perform at least 20 hours of community service per
week at the direction of the U.S. probation officer until
gainfully [60] employed.
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He shall not enter into any agreement to act as an
informer or special agent of a law enforcement agency
without the permission of the Court.
I understand the fine of special assessment have
been paid in this court.
You will note in what I just said, that there’s
reference to a very small number of requirements
required when he’s in custody, or, for that matter,
when he’s in supervised release. These are well-
known factors. If it should come to pass that counsel
for either side would like to have them repeated
present in court, I will be happy to do so, and you’ll
have appropriate time to do that.
Counsel, did you want to approach and tell me
what it is that you would like to do next.
(Brief pause).
MS. BONAMICI: Your Honor, two things with
respect to the terms of supervised release and the
special assessment.
With respect to the community service obligation,
I believe that Your Honor is required to specify a
maximum number of hours per week.
And with respect to the special assessments, I
believe that because the defendant has already paid,
the special assessments for which he was obligated
under the dismissed counts, some provision should be
made for that money to be [61] returned to him, I
believe. I’m not sure of that, but I point that out to
Your Honor as a question.
MR. GOODMAN: I’m sorry. I’m sorry, Judge. I
didn’t get the question.
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THE COURT: Perhaps what you might do, when
we adjourn, is consult among yourselves. If it is
necessary to change this or if there needs to be a
special admonition to the nature of the rules I adopted,
and we can do that before we leave today.
MS. BONAMICI: Okay.
THE COURT: Anything else?
MS. BONAMICI: No, Your Honor.
MR. GOODMAN: No.
MS. MATUZAK: No, Your Honor.
THE COURT: Thank you, counsel.
THE CLERK: All rise.
(Recess.)
MS. BONAMICI: Again, Debra Bonamici and
Laurie Barsella for the United States.
MR. GOODMAN: Leonard Goodman and Malissa
Matuzak for Rod Blagojevich.
Judge, we discussed and we are agreed to the 200
hours of community service.
THE COURT: Granted.
MR. GOODMAN: And in terms of any special
assessment
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