United States v. McLeczynsky, Alex ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3018
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEX MCLECZYNSKY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 723—Joan B. Gottschall, Judge.
____________
ARGUED MAY 17, 2002—DECIDED JULY 24, 2002
____________
Before BAUER, POSNER and KANNE, Circuit Judges.
BAUER, Circuit Judge. A federal grand jury returned a
superseding indictment charging defendant-appellant, Alex
McLeczynsky, with four counts of RICO and Hobbs Act
violations. Following a jury trial, McLeczynsky was found
guilty on three of the four counts. The district court sen-
tenced McLeczynsky to a total term of thirty (30) months.
McLeczynsky appeals his conviction and sentence, argu-
ing that Count Two of the indictment inadequately stated
the subject offense and that the government referred to
his failure to testify in closing argument. Because each of
these arguments is without merit, we AFFIRM.
2 No. 01-3018
Background
On April 11, 2000, a grand jury returned a superseding
indictment charging McLeczynsky with violations of 18
U.S.C. § 1962(d) (RICO conspiracy, Count I); 18 U.S.C.
§ 1951 (Hobbs Act conspiracy, Count II); and 18 U.S.C.
§§ 1951, 1952 (substantive Hobbs Act violations, Counts III
and IV). The charges and subsequent conviction stem from
his involvement in a conspiracy to extort money from un-
qualified applicants for the fraudulent issuance of commer-
cial driver’s license (“CDL”) permits by employees of the
Illinois Secretary of State driver’s license facility in Mel-
rose Park.
McLeczynsky began actively participating in the con-
spiracy in 1998, while working as a driving instructor
at Viking Driving School in Elk Grove Village, Illinois (“Vi-
king”). Viking shared use of its facilities with two other
driving schools, Mega Driving School (“Mega”) and Vistula
Driving School. Throughout 1997 and 1998, McLeczyn-
sky had repeated contact with a former student, Janusz
Krzyzak, who was then working as a driver instructor at
Mega.
In the spring of 1998, Krzyzak informed McLeczyn-
sky that it was possible for applicants who could not
legitimately obtain CDL permits to get their permits by
paying cash bribes to certain employees of the Illinois
Secretary of State. After receiving this information, Mc-
Leczynsky approached Krzyzak to tell him about some
applicants who were willing to pay money in order to ob-
tain their CDL permits. At the time of this initial encoun-
ter, Krzyzak responded that the Secretary of State em-
ployees with whom he was connected were not currently
“accepting applicants.”
Sometime in late May or early June of 1998, Krzyzak
informed McLeczynsky that the Secretary of State em-
ployees were once again accepting applicants. In June, Mc-
No. 01-3018 3
Leczynsky told Krzyzak that he had applicants who
were ready to pay money to obtain permits. In turn,
Krzyzak told McLeczynsky that he needed $600 to pass
on to a Secretary of State employee, and that he and Mc-
Leczynsky could split whatever additional money Mc-
Leczynsky was able to extort from the applicants. Operating
under these general terms, McLeczynsky and Krzyzak ar-
ranged for a total of approximately five unqualified appli-
cants to pay bribes to Secretary of State employees in ex-
change for fraudulently issued CDL permits from June
to September of 1998.
Discussion
A) Sufficiency of the Indictment
We review the sufficiency of an indictment de novo. An
indictment is deemed sufficient if it: (1) states the elements
of the offense charged; (2) fairly informs the defendant
of the nature of the charge so that he may prepare a
defense; and (3) enables him to plead an acquittal or con-
viction as a bar against future prosecutions for the same
offense. Hamling v. United States, 418 U.S. 87, 117 (1974);
United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir.
2002). Additionally, when determining the sufficiency of
an indictment, we look at the contents of the subject in-
dictment “on a practical basis and in [its] entirety, rather
than in a hypertechnical manner.” United States v. Smith,
230 F.3d 300, 305 (7th Cir. 2000) (citations omitted).
McLeczynsky argues that Count II (Hobbs Act conspir-
acy) of the indictment at issue here is insufficient because
it alleged that he was liable as an agent for private in-
dividuals who cannot be found guilty of extortion under
the Hobbs Act. The Hobbs Act defines extortion as the
“obtaining of property from another with his consent, in-
duced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right.” 18 U.S.C.
§ 1951 (emphasis added). Thus, to survive the test of suf-
4 No. 01-3018
ficiency, the superseding indictment must allege that Mc-
Leczynsky conspired with, aided and abetted extortion
by a public official. See United States v. McClain, 934
F.2d 822, 826-27 (7th Cir. 1991) (private individual may
be charged with and convicted of extortion under color
of official right if that individual conspired or acted in co-
ordination with public officer). The indictment contains
these requisite allegations.
When read in its entirety and including the incorpor-
ated allegations from Count I, Count II describes in great
detail McLeczynsky’s role as an intermediary between
bribe payors and payees who, for personal profit, partici-
pated in a scheme by which corrupt Secretary of State
employees obtained cash payments in exchange for their
assistance in issuing fraudulent CDL permits to unqualified
applicants. While McLeczynsky’s role as an intermediary
may properly be characterized as that of a “double agent,”
it is the nature of his relationship with the Secretary of
State employees, not those private individuals who paid
cash for a fraudulent CDL permit, that matters for pur-
poses of determining his potential and ultimate liability
under the Hobbs Act. See McClain, 934 F.2d at 827 (inter-
mediary between private individuals and public officers
in illegal extortion scheme may be liable as co-conspirator);
see also United States v. Wright, 797 F.2d 245, 252-53
(5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987) (partici-
pant in communicating, negotiating and collecting extor-
tion demand properly charged with aiding and abetting
under Hobbs Act). As Count II alleges that McLeczynsky
acted in coordination with public officers employed by the
Illinois Secretary of State in extorting money from unquali-
fied CDL applicants, its terms sufficiently set forth a Hobbs
Act violation.1
1
Ordinarily, in determining the sufficiency of an indictment, we
will not insist that any particular word or phrase be used. See,
(continued...)
No. 01-3018 5
B) Propriety of Prosecutor’s Closing Argument
We review both the district court’s denial of McLeczyn-
sky’s motion for a mistrial and its decision to allow
the prosecutor’s comments during closing argument to
stand for an abuse of discretion.2
In his motion for a new trial, McLeczynsky challenged the
following remarks made by the prosecutor during the gov-
ernment’s opening summation:
Now, it’s absolutely true, and it is always the case
that the burden of proof rests rights [sic] here at this
table throughout the whole trial. But you know Mr.
Durkin and Mr. Blegen [defense counsel], they spent
a lot of time cross-examining witnesses, they spent a
lot of time asking a lot of questions, and they even
put in some exhibits and a stipulation about Ms.
Fajdich, so they did put in some evidence. So the ques-
tion is, ladies and gentlemen: What is the defense to
this overwhelming evidence of the defendant’s know-
ing involvement?
Trial Transcript, vol. 9, 1814. McLeczynsky argues that
these comments improperly shifted the burden of proof
by alluding to his failure to testify, thereby violating his
Fifth Amendment rights.
1
(...continued)
e.g., United States v. Smith, 223 F.3d 554, 572 (7th Cir. 2000);
United States v. Garcia-Geronimo, 663 F.2d 738, 742 (7th Cir.
1981). Nonetheless, we note our belief that the government’s
inclusion of the allegation that McLeczynsky acted as an “agent”
of the extortion victims in the second paragraph of Count II,
though not a deficiency warranting reversal, was flawed.
2
The government does make the argument that McLeczynsky
forfeited his objection to the challenged remarks, which would re-
sult in plain error review. United States v. Linwood, 142 F.3d 418,
422-23 (7th Cir. 1998). After reviewing the record, we find no
forfeiture.
6 No. 01-3018
In denying McLeczynsky’s motion, the district court
found that to the extent that the prosecutor attempted to
shift the burden of proof, any potential prejudice was im-
mediately cured by the court’s admonition to the jury about
the proper placement of the burden of proof. We agree with
this assessment.
Conclusion
The conviction and sentence of the defendant-appellant,
Alex McLeczynsky, is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-24-02