United States v. Gulotta, Lawrence P. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1602, 02-1650, 02-1914 & 02-2053
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Cross-Appellant,
v.
JEROME GENOVA, LAWRENCE GULOTTA,
AND JEROME STACK,
Defendants-Appellants, Cross-Appellees.
____________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 00 CR 585—Ruben Castillo, Judge.
____________
ARGUED APRIL 11, 2003—DECIDED JUNE 20, 2003
____________
Before EASTERBROOK, MANION, and DIANE P. WOOD,
Circuit Judges.
EASTERBROOK, Circuit Judge. After his election in 1993
as Mayor of Calumet City, Illinois, Jerome Genova ap-
pointed Lawrence Gulotta as City Prosecutor and arranged
for his law firm, Gulotta & Kawanna, to get the lion’s share
of the City’s legal business. Both a jury (with respect to
Genova) and the judge (with respect to Gulotta, who elected
a bench trial) concluded that Genova had a financial reason
for this decision: Gulotta kicked back to Genova about 30%
of all payments his firm received from the City. United
2 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
States v. Genova, 167 F. Supp. 2d 1021 (N.D. Ill. 2001).
Genova diverted public resources to private ends in at least
one other way: He induced Jerome Stack, the Public Works
Commissioner, to make employees available for political
duties. Stack gave employees leave (to provide the cover
story that they were doing politics on their own) while pro-
viding each with a day of “comp time” for every day of polit-
ical work. For some tasks, such as attending fundraisers,
Stack gave the employees overtime credit, which immedi-
ately padded their paychecks—and always in an amount
enough to cover the cost of tickets that the employees had
purchased for themselves and their families.
For these machinations, Genova, Gulotta, and Stack have
been convicted of violating the Racketeer Influenced and
Corrupt Organizations Act (RICO); they operated the City
(an “enterprise”) through a pattern of racketeering (the
predicate offenses are bribery and mail fraud). Gulotta was
convicted of bribing Genova, Genova and Gulotta were con-
victed of mail fraud, and all three defendants were con-
victed of stealing more than $5,000 from a program (the
City) that receives more than $10,000 annually in federal
funds. The district court set aside Stack’s theft convictions
and several predicate acts underlying Genova’s RICO
conviction but rejected other challenges. United States v.
Genova, 187 F. Supp. 2d 1015 (N.D. Ill. 2002). Genova has
been sentenced to 60 months’ imprisonment plus a fine of
$12,500 and forfeiture of $386,276; Gulotta to 48 months
plus a fine of $15,000 and forfeiture of $270,944; and Stack
to 37 months plus a fine of $3,000. Gulotta has been
disbarred and Genova suspended by Illinois pending
disbarment. But Ronald Kawanna, Jr., Gulotta’s former
partner, remains in good standing at the Illinois bar even
though the district court, after finding that Kawanna
committed extensive perjury in the federal trial, strongly
recommended that Illinois terminate his right to practice
law. See 167 F. Supp. at 1043-45.
Nos. 02-1602, 02-1650, 02-1914 & 02-2053 3
Genova and Gulotta challenge their convictions under 18
U.S.C. §666 for theft, and the United States has filed a
cross-appeal seeking to have Stack’s theft convictions
reinstated.
Comp time is equivalent to money because it works like
vacation leave: the employee can use it to receive pay for
days on which no work is performed, and unused comp time
(like unused vacation leave) may be converted directly to
cash on resignation. Defendants contend that comp time
represents a loss to the City only when drawn down (or
cashed out) by an employee, and that the evidence does not
show that more than $5,000 worth of comp time was used
(as opposed to credited) in any given year. But this is like
arguing that money placed in an employee’s bank account
does not count for purposes of §666 until the employee
makes a withdrawal. To the contrary, money deposited in
a bank, or comp time in an employment account, is value
transferred to the employee when deposited, not when used,
and the evidence was more than sufficient to show that
Calumet City deposited more than $5,000 of comp time in
employees’ accounts, because of their political services, in
each of 1996 and 1997. Genova’s §666 convictions based on
the use of public money for political activities is unexcep-
tionable. And even if some leave remained unused and
was canceled when the scheme came to light, the recov-
ery of stolen funds does not make the original deed less
a theft.
Some of Genova’s (and all of Gulotta’s) §666 convictions
stem from funds paid to Gulotta & Kawanna and then
kicked back to Genova. With respect to these, defendants
contend, Genova did not receive more than $5,000 that was
“owned by” or “under the care, custody, or control of”
Calumet City, as §666 requires—because the money be-
longed to Gulotta & Kawanna. This argument supposes
that a thief gets good title to the boodle. Genova and
4 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
Gulotta corruptly arranged for Gulotta & Kawanna to re-
ceive some of Calumet City’s money, so that the law firm
could pass a portion of it back to Genova. The roundabout
does not disguise the fact that Gulotta & Kawanna never
earned the amount that was destined to be handed over to
Genova as a kickback; Genova just arranged to pilfer that
money through an intermediary, and both participants were
properly convicted. (We take up later the question whether
Gulotta must disgorge the portion of the money that
compensated his firm for legal services actually rendered.)
The jury convicted Stack of two counts under §666, one for
funds misapplied in 1996 and the other for funds diverted
in 1997. The district judge granted Stack’s postverdict
motion for acquittal under Fed. R. Crim. P. 29(c), observing
that the verdicts with respect to §666 conflict with the
verdict on the RICO charge. In order to convict Stack of
violating RICO, the jury had to determine that he carried out
a pattern of racketeering activity, and the jury was asked
to report by special verdicts which potential predicate
offenses it had found. The judge wrote:
[T]he jury found that Stack committed only four
racketeering acts involving Paul Kowalchyk, Nick
Yovkovich, Tom Maszinski and Anthony Perry. Our
examination of the record indicates that, even when
viewing the evidence in the light most favorable to
the Government, Stack’s award of comp days to
these four Public Works employees in violation of
racketeering acts 9, 10, 12 and 13 did not exceed
$5,000 in 1996 and 1997. As such, we reject the
Government’s claim that “[T]he fact that the jury
acquitted defendant Stack of all but four predicate
acts in the RICO count is irrelevant,”. . . because we
do not believe that a reasonable jury could have
found the requisite jurisdictional amount of §666
Nos. 02-1602, 02-1650, 02-1914 & 02-2053 5
for either year beyond a reasonable doubt. Conse-
quently, this Court enters a judgment of acquittal
as to Stack on Counts Five and Six.
187 F. Supp. 2d at 1032-33. The United States has appealed
under the Criminal Appeals Act, 18 U.S.C. §3731, which
authorizes appellate review whenever the Double Jeopardy
Clause would not forbid the relief that the prosecutor seeks.
See United States v. Wilson, 420 U.S. 332, 336-39 (1975).
Wilson holds that, if a remand would not require a second
trial, it does not matter whether the judge’s post-trial deci-
sion should be labeled an “acquittal.” Id. at 339-53. See
also, e.g., United States v. Morrison, 429 U.S. 1 (1976). The
prosecutor asks us to reinstate the jury’s verdict and re-
mand for the imposition of the sentence authorized by law;
as in Wilson and Morrison, that step is permissible under
both the statute and the Constitution. United States v.
Martin Linen Supply Co., 430 U.S. 564 (1977), is not to the
contrary. Martin Linen holds that the double jeopardy
clause forbids a second trial following a Rule 29(c) acquittal
but reiterates the holding of Wilson that there is no problem
when “restoration of the guilty verdict, and not a new trial,
would necessarily result if the Government prevailed.” 430
U.S. at 570. And United States v. DiFrancesco, 449 U.S.
117, 130 (1980), which post-dates Martin Linen, recites as
one of double jeopardy’s fixed stars the principle that “the
Double Jeopardy Clause does not bar a Government appeal
from a ruling in favor of the defendant after a guilty verdict
has been entered by the trier of fact.” See also Peter Westen
& Richard Drubel, Toward a General Theory of Double
Jeopardy, 1978 S. Ct. Rev. 81, 137-55. It has long been this
court’s view that the United States may appeal from a
judge’s order acquitting the defendant after the jury has
returned a verdict of guilty, for reversal does not require a
new trial. See, e.g., United States v. Klein, 910 F.2d 1533,
1535 (7th Cir. 1990); United States v. Blasco, 581 F.2d 681,
6 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
683-84 (7th Cir. 1978); United States v. Allison, 555 F.2d
1385, 1386-87 (7th Cir. 1977). We adhere to that position
today.†
Whether the jury’s special verdicts on the RICO charge
imply Stack’s innocence of the §666 charges is open to
doubt. Maybe the jury stopped after identifying Kowalchyk,
Yovkovich, Maszinski, and Perry because it deemed four
predicate acts enough to establish the prohibited pattern of
racketeering; the verdict thus need not establish that this
is all Stack did. But even if the RICO and §666 verdicts are
irreconcilable, this does not vitiate the jury’s disposition of
the §666 counts. Inconsistency does not spoil a conviction.
See United States v. Powell, 469 U.S. 57 (1984). To the
extent that the district judge may have entertained an
independent view about the evidence, he was not permitted
to do so; Rule 29(c) does not authorize the judge to play
thirteenth juror. See Charles Alan Wright, 2A Federal
Practice & Procedure §467 (3d ed. 2000) (collecting author-
ity). The issue on a motion under Rule 29(c) is the same as
the issue on appeal: whether the evidence, taken in the
light most favorable to the verdict, permits a sensible per-
son to find beyond a reasonable doubt that the defendant
committed the crime alleged. The evidence permitted a sen-
†
Every other court of appeals that has addressed the issue agrees
with our view that Martin Linen does not affect the holding of
Wilson, and that a post-trial acquittal therefore is appealable
when a new trial will not ensue. See, e.g., United States v.
Coleman, 811 F.2d 804, 805 (3d Cir. 1987); United States v.
Sharif, 817 F.2d 1375, 1376 (9th Cir. 1987); United States v.
Sellers, 871 F.2d 1019, 1021 (11th Cir, 1989). For more citations,
and a discussion, see Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, 15B Federal Practice & Procedure §3919.5 at
673-88 & n.85 (2d ed. 1991 & 2002 Supp.); Charles Alan Wright,
2A Federal Practice & Procedure §469 at 318-20 & n.5 (3d ed.
2000).
Nos. 02-1602, 02-1650, 02-1914 & 02-2053 7
sible jury to find that Stack credited employees with more
than $5,000 in unearned comp time in each of 1996 and
1997; the City’s records provide compelling evidence on that
score. Stack therefore must be sentenced on the §666 con-
victions.
We spoke loosely in treating Stack’s RICO predicate of-
fenses as instances of misapplication in violation of §666,
because offenses under that law are not authorized predi-
cates. See 18 U.S.C. §1961. Nor are state theft or misappli-
cation offenses. Section 1961(1)(B) enumerates the federal
crimes that are “racketeering activity”, and §1961(1)(A) has
a shorter but more general list of state offenses:
[A]ny act or threat involving murder, kidnapping,
gambling, arson, robbery, bribery, extortion, deal-
ing in obscene matter, or dealing in a controlled
substance or listed chemical (as defined in [21
U.S.C. §802]), which is chargeable under State law
and punishable by imprisonment for more than one
year[.]
The indictment charged that Stack’s award of comp time for
political work was “bribery” under Illinois law, which in 720
ILCS 5/33-1(a) says that a person commits that crime when,
with intent to influence the performance of any act
related to the employment or function of any public
officer, [or] public employee . . . he promises or
tenders to that person any property or personal
advantage which he is not authorized by law to
accept[.]
Stack’s RICO conviction is valid only if the use of public
money to pay for political assistance violates §5/33-1(a). The
prosecutor alleged that Genova, too, committed the predi-
cate offense of bribery, but in his case the underlying acts
concerned the Statements of Economic Interest that elected
officials must make annually. Genova filed statements that
8 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
did not disclose the money he received from Gulotta &
Kawanna; this omission, according to the indictment,
violated 720 ILCS 5/33-3, a statute covering several variet-
ies of official misconduct. Relying on United States v.
Garner, 837 F.2d 1404 (7th Cir. 1987), the district judge
instructed the jury that official misconduct in violation of
§5/33-3 is a form of bribery, and the jury then convicted
Genova of violating RICO. After trial the judge concluded
that this instruction had been mistaken, 187 F. Supp. 2d at
1019-21, but that Genova’s RICO conviction could stand,
because mail fraud (the mailing of these false and mislead-
ing forms, as part of a scheme to retain office and continue
receiving kickbacks) still supplied the necessary pattern of
racketeering activity. Mail fraud, in violation of 18 U.S.C.
§1341, is on the list in §1961(1)(B). The prosecutor defends
this decision and also contends that the jury instruction
was correct and that all of the jury’s findings thus should
stand.
Although we understand the temptation to dilate criminal
statutes so that corrupt officials get their comeuppance,
people are entitled to clear notice of what the criminal law
forbids, and courts must take care not to enlarge the scope
of illegality. See, e.g., Scheidler v. National Organization for
Women, Inc., 123 S. Ct. 1057 (2003) (rejecting an expansive
interpretation of extortion designed to bring noxious
activity within RICO); Bailey v. United States, 516 U.S. 137(1995) (rejecting an expansive interpretation of “use” in a
gun-control statute); McNally v. United States, 483 U.S. 350(1987) (disapproving the creative “intangible rights” theory
of mail fraud). Congress responded to Bailey and McNally
by amending the statutes to provide a basis for the theories
the courts had developed. Perhaps RICO should cover polit-
ical corruption that does not entail bribery or extortion. But
such a change should occur through legislation rather than
prosecutorial and judicial creativity. That is the message of
Scheidler, Bailey, McNally and other recent cases; this
principle leads us to conclude that neither misapplication of
public funds nor concealment of illicit income is “bribery.”
Nos. 02-1602, 02-1650, 02-1914 & 02-2053 9
Let us start with Genova’s situation. Gulotta bribed
Genova, but Genova did not bribe anyone—certainly not the
county bureaucrats who received and put on public view his
Statements of Economic Interest. Genova did not pay any-
one to perform any official duty. The idea that any violation
of 720 ILCS 5/33-3 entails bribery comes from failure to
distinguish among its subsections. It provides:
A public officer or employee commits misconduct
when, in his official capacity, he commits any of the
following acts:
(a) Intentionally or recklessly fails to per-
form any mandatory duty as required by
law; or
(b) Knowingly performs an act which he
knows he is forbidden by law to perform; or
(c) With intent to obtain a personal advan-
tage for himself or another, he performs an
act in excess of his lawful authority; or
(d) Solicits or knowingly accepts for the
performance of any act a fee or reward
which he knows is not authorized by law.
A public officer or employee convicted of violating
any provision of this Section forfeits his office or
employment. In addition, he commits a Class 3
felony.
Garner dealt with subsection (d), which defines a species of
bribery. 837 F.2d at 1417-19. Genova’s misconduct, how-
ever, was alleged to violate subsection (c). Using §5/33-3(c)
is itself a stretch, for the law requiring officials to file State-
ments of Economic Interest has its own penalty clause.
Someone who files a false or incomplete statement commits
a Class A misdemeanor, see 5 ILCS 420/4A-107, and no
misdemeanor is “racketeering activity” under RICO. We
could not find any Illinois decision suggesting that any stat-
ute other than §420/4A-107 applies to a false, incomplete,
10 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
or misleading Statement of Economic Interest. At all
events, §5/33-3(c) does not read like a definition of bribery
and therefore may not be used as a predicate offense under
RICO.
Stack’s conduct also is hard to see as bribery. Stack did
not pay the employees out of his own pocket, or any private
purse, but used the City’s funds. That’s why he was prop-
erly convicted under §666. Nor did Stack use the offer of
comp time and overtime pay to “influence the performance
of any act related to the employment or function of any
public officer, [or] public employee”; the point of the §666
prosecution is that political activities are not the perfor-
mance of a garbage collector’s official duties. Public Works
employees were entitled to unpaid leave for political en-
deavors; the §666 problem was paying them for that time,
while the problem with bribery is paying for official tasks
that the employee is supposed to perform, without outside
financial influence, as part of his job. If, on the other hand,
we conceive of political work as part of “the job” in Calumet
City, then there is no bribery in disbursing wages from the
City treasury. A bureaucrat who tells sanitation and snow
removal employees to ensure that the mayor’s neighborhood
is cleaned up early and often may or may not have commit-
ted a political sin, but he has not committed the crime of
bribery; no more so when he diverts employees’ time to
more overtly political endeavors. Speedy pothole repair for
neighborhoods that support the incumbent is common in
municipal government, and we do not for a second suppose
that putting salaried workers to this political end is brib-
ery—yet that is an implication of the prosecution’s theory.
The United States concedes that no Illinois decision sup-
ports its view that using public funds to pay municipal
employees for political labor is bribery under 720 ILCS
5/33-1, and it would deprive Stack of fair warning to put
that statute to such a novel use in order to secure his con-
viction for violating RICO. Cf. Bouie v. Columbia, 378 U.S.
347 (1964). Stack’s RICO conviction cannot stand.
Nos. 02-1602, 02-1650, 02-1914 & 02-2053 11
Whether Genova’s RICO conviction is tenable depends on
the mail fraud convictions (and the predicate acts based on
mail fraud). Each count of mail fraud (and each parallel
predicate act under the RICO charge) represented one annu-
al Statement of Economic Interest that omitted the money
Genova had received the prior year from Gulotta &
Kawanna. Genova does not contest the jury’s evident con-
clusion that the statements (and hence the mailings) were
false. He does contend that they were not part of a scheme
to defraud, but this goes nowhere. Keeping a lid on the
kickbacks was essential to permit their continuation.
Genova hoodwinked Calumet City out of the money he re-
ceived as kickbacks; he also defrauded the voters out of
their intangible right to his honest services—a theory of
culpability resurrected by 18 U.S.C. §1346, enacted soon
after McNally. A jury sensibly could conclude that the false
mailings were integral to this scheme, so that Genova vio-
lated §1341. See, e.g., Schmuck v. United States, 489 U.S.
705 (1989). And because the scheme extended over several
years, a jury also sensibly could find a pattern of racketeer-
ing. See H.J., Inc. v. Northwestern Bell Telephone Co., 492
U.S. 229 (1989). Because the jury returned special verdicts
identifying particular racketeering acts, we know that it
determined beyond a reasonable doubt that Genova commit-
ted at least two mail frauds, and there is no good reason to
think that the verdicts finding mail fraud predicates could
have been influenced by the incorrect jury instruction about
treating 720 ILCS 5/33-3 as a form of bribery. Both the mail
fraud and the RICO convictions therefore are untainted by
error.
Gulotta was convicted of participating in Genova’s mail
fraud scheme—whether as a principal or as an assistant
under 18 U.S.C. §2 does not matter. Mail fraud predicates
also supply the basis for his RICO conviction. Section 1341
defines the crime as a “scheme or artifice to defraud,” and
the district judge (as trier of fact in Gulotta’s bench trial)
12 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
concluded that Gulotta had participated in this scheme by
supplying the money that Genova then concealed through
false mailings (and by keeping the residue of what the City
had paid Gulotta & Kawanna). Gulotta did not prepare or
mail the statements; that was done by Genova’s secretary.
Nor did Gulotta vet them; that task fell to Jerry Lambert,
the City Attorney. Still, Gulotta is criminally culpable,
either as a principal or under §2, if Genova’s use of the mail
was reasonably foreseeable to Gulotta as part of the
scheme. So the district judge found: “The 1996, 1997 and
1998 Statement of Economic Interest forms were all caused
to be mailed to the Cook County Clerk through the U.S.
mails by Genova, and such mailings were reasonably fore-
seeable to Gulotta and aided and abetted by him.” 167 F.
Supp. 2d at 1030. The evidence adequately supports this
finding. Gulotta was experienced in Illinois municipal law
(or so he assured Calumet City when undertaking to per-
form its legal business) and therefore surely knew that
elected officials must file annual reports of their income.
Not in his wildest dreams could Gulotta have imagined that
Genova would reveal the kickbacks, or that he would take
the forms to the County Clerk’s office by bicycle for filing.
So when Genova did the expected—omitting the kickbacks
and mailing the forms—this was reasonably foreseeable, or
so the judge could conclude without making a clear error of
fact.
Defendants have made many other arguments about their
convictions, but none requires separate discussion. The dis-
trict court’s handling of them does not require supple-
mentation. Likewise we pass in silence most of the argu-
ments about the sentences; these have been considered and
found unpersuasive except to the extent discussed below.
RICO provides for forfeiture in addition to fines and im-
prisonment:
(a) Whoever violates [18 U.S.C. §1962] . . . shall
forfeit to the United States, irrespective of any
Nos. 02-1602, 02-1650, 02-1914 & 02-2053 13
provision of State law—(1) any interest the person
has acquired or maintained in violation of section
1962; (2) any—(A) interest in; (B) security of; (C)
claim against; or (D) property or contractual right
of any kind affording a source of influence over; any
enterprise which the person has established, oper-
ated, controlled, conducted, or participated in the
conduct of, in violation of section 1962; and (3) any
property constituting, or derived from, any proceeds
which the person obtained, directly or indirectly,
from racketeering activity or unlawful debt collec-
tion in violation of section 1962.
The court, in imposing sentence on such person
shall order, in addition to any other sentence
imposed pursuant to this section, that the person
forfeit to the United States all property described in
this subsection. In lieu of a fine otherwise autho-
rized by this section, a defendant who derives
profits or other proceeds from an offense may be
fined not more than twice the gross profits or other
proceeds.
(b) Property subject to criminal forfeiture under
this section includes—(1) real property, including
things growing on, affixed to, and found in land;
and (2) tangible and intangible personal property,
including rights, privileges, interests, claims, and
securities.
(c) All right, title, and interest in property de-
scribed in subsection (a) vests in the United States
upon the commission of the act giving rise to for-
feiture under this section. Any such property that
is subsequently transferred to a person other than
the defendant may be the subject of a special
verdict of forfeiture and thereafter shall be ordered
forfeited to the United States, unless the transferee
14 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
establishes in a hearing pursuant to subsection (l)
that he is a bona fide purchaser for value of such
property who at the time of purchase was reason-
ably without cause to believe that the property was
subject to forfeiture under this section.
18 U.S.C. §1963. The district court ordered Gulotta to
forfeit the entire amount the City had paid to Gulotta &
Kawanna, without any deduction for the bribes paid to
Genova. It ordered Genova to forfeit the bribes he received,
plus the amounts Gulotta & Kawanna retained, plus the
wages improperly paid to the City’s workers for political
labors, plus the value of renovations to Genova’s home that
were accomplished with the assistance of workers paid by
the City.
Restitution is loss based, while forfeiture is gain based.
The rule relevant to this case, §1963(a)(3), requires forfei-
ture of “any property constituting, or derived from, any pro-
ceeds which the person obtained, directly or indirectly, from
racketeering activity”. A change in form from the proceeds
immediately obtained from crime—for example, use of crim-
inal lucre to buy a house—does not prevent forfeiture of the
resulting property. See United States v. Ginsburg, 773 F.2d
798 (7th Cir. 1985) (en banc). Still, there must be “pro-
ceeds”—which means profits net of the costs of the criminal
business. See United States v. Masters, 924 F.2d 1362,
1369-70 (7th Cir. 1991); cf. United States v. Scialabba, 282
F.3d 475 (7th Cir. 2002). Other circuits have defined “pro-
ceeds” differently. See Comment, The Scope of Criminal
Forfeiture Under RICO: The Appropriate Definition of
“Proceeds,” 66 U. Chi. L. Rev. 1289 (1999). But the United
States has not asked us to revisit Masters, and its approach
is incompatible with the forfeiture ordered here.
The amount that Gulotta received from the City and
handed over to Genova is not a net profit from Gulotta’s
perspective; bribes paid to Genova were a cost of doing bus-
Nos. 02-1602, 02-1650, 02-1914 & 02-2053 15
iness that, under Masters, must be deducted. Gulotta &
Kawanna does not have the money any longer, so Gulotta
cannot turn it over to the United States. Nonetheless,
Genova and Gulotta, as partners in crime, are jointly and
severally liable for the forfeitable proceeds of their activi-
ties. Masters, 924 F.2d at 1369-70. So the kickback, after
being subtracted as a cost from Gulotta’s perspective, is
added back as proceeds from Genova’s.
Under Masters, Gulotta is entitled to subtract from the
gross proceeds the ordinary and necessary costs of generat-
ing the income, such as the salaries of associates and the
costs of maintaining a law office—and there is no corre-
sponding addition, because neither jury nor judge found
that any of the other lawyers or staff at Gulotta & Kawanna
is criminally responsible for this scheme. Gulotta’s brief
does not mention the possibility of these subtractions
(perhaps because he claims to be destitute and is repre-
sented by appointed counsel, so the details of the forfeiture
calculation are unlikely to make any difference), but the
district court’s approach nonetheless was plain error. On
remand, only net proceeds should be ordered forfeited.
Genova concedes that he must forfeit the bribes received
from Gulotta. He contests the order to forfeit the amount of
the legal fees that Gulotta & Kawanna retained for services
rendered. True enough, money the City paid to Gulotta &
Kawanna was never “proceeds” of any kind, gross or net,
from Genova’s perspective. Yet Genova, like Gulotta, bears
responsibility for the whole scheme—and, just as with
Gulotta, Genova is entitled to subtract Gulotta &
Kawanna’s costs of furnishing the legal services.
Perhaps Genova could have been ordered to make resti-
tution to the City of the difference between the amount it
paid Gulotta & Kawanna and the market value of the legal
services the City received. See United States v. Martin, 195
F.3d 961, 967-69 (7th Cir. 1999). At oral argument the
16 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
prosecutor contended that this value is negligible because
the City wanted, and did not receive, conflict-free counsel.
But no restitution was included in the sentence and the
United States has not sought restitution by cross-appeal. It
wants forfeiture deposited in the federal Treasury rather
than restitution made to the City. So far as forfeiture is con-
cerned, however, both Gulotta and Genova are entitled to
credit for the costs of generating the revenue. That these
costs may exceed the value of services rendered (making the
forfeitable proceeds smaller than the amount of restitution
that could have been awarded) does not justify disregarding
them.
The money that the City paid to employees for political
services is not forfeitable from Genova, who did not receive
a penny and thus has no “proceeds.” True, he enjoyed what-
ever value the political assistance may have created, but
this intangible asset—his “political capital,” so to speak—is
not forfeitable even in principle. (It is not “intangible
personal property” as §1963(b)(2) uses that phrase.) Any-
way, its value has taken a nose dive in recent years. Again
this illustrates the difference between restitution and for-
feiture. Genova caused the City to lose the amount paid to
the workers, but this did not create a corresponding asset
in his hands available for forfeiture.
Finally, although Genova’s home is an asset covered by
§1963(b)(1), and it is agreed that Calumet City employees
performed work that increased its value by $60,000, the
district court did not attempt to determine how much of this
value represents “proceeds” of crime. Genova contends that
he provided the materials and city workers the labor.
Suppose Genova used the money from the kickbacks to pur-
chase $30,000 worth of bricks and lumber, while the City
supplied labor worth $30,000. Forfeiting the whole amount
of the bribes he received, and then forfeiting $60,000 of the
equity in his home, would be excessive. The money received
in bribes could be traced to the home on this hypothesis and
Nos. 02-1602, 02-1650, 02-1914 & 02-2053 17
then forfeited. But to order it forfeited once as cash and a
second time as building materials is double counting. Here
the law of forfeiture and the law of restitution work the
same way: the ill-got gain is forfeited (or repaid via restitu-
tion), but value added independently by the accused is
neither a forfeitable gain nor a loss to the victim. See
United States v. Shepard, 269 F.3d 884, 887-88 (7th Cir.
2001). So if Genova supplied the building materials from
lawful income (such as his salary), then this value is not
part of the proceeds that can be forfeited; and if the sup-
plies that Genova furnished came from criminal proceeds,
then the value may be forfeited once, as cash or as an in-
terest in the property, but not twice.
Unfortunately, the record does not establish how much of
the value came from Genova and how much from the City’s
coffers. The fact that Genova was acquitted of counts char-
ging that he devoted the City’s resources to his home-
improvement projects does not eliminate all possibility of a
forfeiture based on these activities. Even counts on which
the jury acquits may be considered in sentencing, if the
judge finds by a preponderance of the evidence that the
criminal activities occurred. See United States v. Watts, 519
U.S. 148 (1997). (This principle is subject to the proviso, see
Apprendi v. New Jersey, 530 U.S. 466 (2000), that only
findings by the trier of fact under the reasonable-doubt
standard support an increase in the statutory maximum
punishment, but there is no “statutory maximum” for resti-
tution or forfeiture. See United States v. Behrman, 235 F.3d
1049, 1053-54 (7th Cir. 2000).) We may assume that the
defendant has the burden of raising a contention that a
given asset contains a mixture of forfeitable proceeds and
nonforfeitable contributions from lawful sources; likewise
we may assume that the defendant bears at least some bur-
den of production with respect to this contention. (Decision
on both subjects can await a case in which the answer mat-
ters.) But once the defendant has contended, with some evi-
dentiary support, that at least some of the value in a given
18 Nos. 02-1602, 02-1650, 02-1914 & 02-2053
asset came from lawful, nonforfeitable sources, then the
prosecutor must demonstrate how much is forfeitable. The
United States and the district court must have agreed with
this position, because the prosecutor did not contend (nor
did the district judge find) that the entire value of Genova’s
house is forfeitable; the sentence directs him to forfeit only
the $60,000 value of the improvements. But just as the
house as a whole contains nonforfeitable value, so the im-
provements made during his mayoralty may contain non-
forfeitable value. The district judge must try to determine
which is which. As the wrongdoer, Genova bears the risk of
uncertainty in this endeavor.
Bottom line: Genova’s and Gulotta’s convictions and
sentences are affirmed, but the judgments with respect to
forfeiture are vacated, and their cases are remanded for
recalculation of the forfeiture amounts consistent with this
opinion. Stack’s RICO conviction is reversed but his §666
convictions are reinstated on the cross-appeal, and his case
is remanded for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-20-03