United States v. Eugene Mullins

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1701
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EUGENE MULLINS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 596— Amy J. St. Eve, Judge.
____________________
ARGUED SEPTEMBER 23, 2014 — DECIDED SEPTEMBER 3, 2015
____________________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Eugene Mullins, the former Di-
rector of Public Affairs and Communications for Cook
County, Illinois, was indicted for wire fraud and bribery be-
cause he fraudulently arranged service contracts for several
vendors and accepted over $34,000 in bribes from them. Ju-
rors convicted him of four counts of wire fraud, 18 U.S.C.
§ 1343, and four counts of bribery, id. § 666. In this appeal
Mullins challenges the sufficiency of the evidence support-
2 No. 14-1701
ing his convictions and contends that the prosecutor en-
gaged in misconduct. Because the evidence was sufficient to
convict Mullins of wire fraud and bribery offenses and be-
cause no harmful prosecutorial misconduct occurred, we af-
firm.
I. BACKGROUND
Beginning in 2008 Mullins served as Cook County’s Di-
rector of Public Affairs and Communications. During his
time at that post, Cook County used a two-tiered system for
approving service contracts. Contracts requiring the county
to spend $25,000 or more had to be approved by its Board of
Commissioners. Contracts that required the county to spend
less than $25,000, however, required the approval of only the
county’s purchasing agent. The government charged Mullins
and his codefendants—vendors to whom the county award-
ed contracts—with manipulating this system to their benefit.
The scheme was as follows. Mullins helped these vendors
obtain payment under county service contracts, without the
vendors having to complete any work, and in exchange they
paid Mullins $34,748 in bribes. Specifically, Mullins helped
Gwendolyn Moody, Clifford Borner, and Kenneth Demos
secure contracts that ostensibly promoted census awareness.
He assisted Gary Render in obtaining a contract that sup-
posedly helped county residents affected by floods in 2008.
And he aided Michael Peery, who sought a contract de-
signed to promote energy efficiency.
The prosecution opened its case with the testimony of
Mullins’s secretary, Annette Goldsmith. She testified that to
be approved for a contract under $25,000 a vendor must
provide her with a proposal, an invoice of work, and tax
No. 14-1701 3
forms so that she could create a justification letter. She ex-
plained that Mullins, the purchasing agent, the county
comptroller, and others would review and sign the forms,
invoice, and justification letter. Goldsmith testified that the
county generally paid the selected vendor after the vendor
had completed the contracted work. But, she testified, this
procedure was ignored for the contracts awarded to Moody,
Demos, Render, Borner, and Peery. Goldsmith identified
Mullins’s initials on the justification letters and invoices for
their contracts. Mullins, however, later denied that the ini-
tials were his, reading them as “LU” rather than “EM.”
Next to testify were the vendors and codefendants in-
volved in Mullins’s contract scheme—Borner, Demos,
Moody, Render, and Peery. The government agreed to defer
prosecution of them, under charges of misprision of felony,
in exchange for their testimony and admissions of guilt.
Borner testified about the census contract, which was in-
voiced at $24,995.00. To prepare to secure that contract,
Borner testified that he provided Mullins with some paper-
work but he did not draft the invoice. Instead, Mullins creat-
ed Borner’s invoice and attributed contract work to the non-
existent “Clifford Borner and Associates,” a fictitious com-
pany to which the contract work was awarded. Borner ad-
mitted that before receiving the contract he did not know
anything about census awareness or reporting. He also con-
ceded that he received over $24,000 for his contract, even
though he did not do enough work to justify that sum (he
mainly passed out fliers door-to-door). Borner further testi-
fied that Mullins required him to remit $5,000 to a “subcon-
tractor,” which he did by bringing the money to an elevator
in cash and handing it to Mullins.
4 No. 14-1701
Mullins’s lawyer suggested during Borner’s cross exami-
nation that Borner was lying. Before trial the prosecution
had disclosed to Mullins’s lawyer that, as Borner was prepar-
ing for trial, he told the prosecution that he recently learned
that three years earlier a federal agent had threatened to shut
down his wife’s day care business. That threat supposedly
came during the government’s investigation into public con-
tracts awarded to her business in 2010. Despite this disclo-
sure, on cross examination Borner denied reporting this
threat to the prosecution—leading to the suggestion that
Borner was lying. On redirect examination, Borner clarified
himself: Although three years earlier he had not known of or
told the prosecution about the supposed threat, he did re-
port it to the prosecution shortly before trial, when his wife
mentioned it to him. He also added that, in fact, he believed
that no threats were actually made to her.
Demos also testified about the census contracts. He stat-
ed that he had not created the invoices (Mullins had) and
that he had not performed $25,000 worth of work, despite
the payment from Cook County. Demos recalled that when
Mullins gave him the check from Cook County Mullins told
him that he should think of it as a gift. In testimony similar
to that from Borner, Demos explained that Mullins had in-
structed him to pay over $8,000 to Mullins so that Mullins
could pay an unnamed “subcontractor.”
Next up was Moody, who also testified about a census
contract. She stated that her initial invoice amount had been
too high, so Mullins directed her to alter it so that it fell un-
der $25,000. Like the others, she also received a check from
Cook County before performing any work. (She returned the
check because of a problem with her business name.)
No. 14-1701 5
Render testified about the flood-relief grant. He stated
that Mullins had decided on a final amount for his contract.
Render also explained that Mullins had wanted him to re-
turn $9,000 from the contract award to Mullins. Render gave
Mullins the cash because he thought Mullins deserved it and
because he wanted to ensure that he could get future work
from Cook County.
Peery testified about the funds he received to do outreach
work for energy efficiency. He stated that Mullins had
helped him, too, draft his contract proposal and the accom-
panying invoice outlining the anticipated work. After Peery
was awarded the contract, Mullins told him that he would
need to pay Mullins $12,000 in cash, which Peery did. Peery
stated that Mullins told him that the money was going to a
subcontractor but Peery thought that it “wasn’t adding up”
and that no subcontracts actually existed.
Mullins presented witnesses in his defense. These in-
cluded several character witnesses and Karen Crawford, a
Cook County employee. Crawford testified that Cook Coun-
ty did not have a rule that prohibited vendors from being
paid before working, but she admitted that in her experience
prepayment was not the norm. Mullins also testified in his
own defense. He stated that he had recommended vendors
but had not chosen them, had arranged for Cook County
employees to assist vendors who had difficulty completing
their proposals, and had not created, drafted, or overseen
any of the contracts at issue in the trial.
During closing argument, the government emphasized
that the vendors had all received their payments up front. To
burnish the point the prosecutor stated that all employees
from Cook County, including the defense witnesses, “said
6 No. 14-1701
the same thing: ‘we don’t pay in advance.’” Mullins objected
to this statement during closing, calling it a misstatement of
Crawford’s testimony. The judge then instructed the jurors to
rely on their own recollection of the testimony. The prosecu-
tor proceeded with the closing argument, re-characterizing
the previous statement to conform with Crawford’s testimo-
ny that upfront payment was not the norm.
The jury found Mullins guilty of all the charges except
one count of wire fraud. The district court sentenced him to
51 months’ imprisonment and this appeal followed.
II. ANALYSIS
On appeal Mullins makes two arguments. First, he main-
tains that the evidence is insufficient to convict him of either
wire fraud or bribery. Second, he contends that the prosecu-
tor suborned perjury, intimidated witnesses, and made im-
proper statements during closing arguments. We discuss
each argument in turn.
A. Sufficiency of the Evidence
Mullins begins by arguing that the government produced
insufficient evidence to convict him of wire fraud and brib-
ery. Sufficiency challenges are very difficult to win because
we view the evidence in the light most favorable to the ver-
dict and reverse only if no reasonable jury could have found
the defendant guilty beyond a reasonable doubt. See United
States v. McClellan, No. 14-2449, 2015 WL 4451052, at *3 (7th
Cir. July 21, 2015); United States v. Hosseini, 679 F.3d 544, 557
(7th Cir. 2012). The government alleges that Mullins waived
arguments about the sufficiency of the evidence, but we
need not decide whether the government is correct because,
viewing the evidence in the light most favorable to the ver-
No. 14-1701 7
dict, we conclude that the record contains abundant evi-
dence to support the convictions.
To prove wire fraud, the government must establish that
there was (1) a scheme to defraud in which the defendant
participated, (2) intent to defraud, and (3) use of interstate
wires. 18 U.S.C. § 1343; United States v. Sheneman, 682 F.3d
623, 628 (7th Cir. 2012). Mullins submits that he did not
scheme to defraud Cook County. He maintains that he simp-
ly expedited time-sensitive contracts and broke no county
rules. And he adds that even if there was a scheme, he did
not participate in it because he did not personally draft pro-
posals or approve the contracts. The jury had more than suf-
ficient reason to disbelieve these assertions.
A fraud scheme exists when there is a willful act to re-
ceive, deceive, or cheat to cause financial loss to another. See
United States v. Howard, 619 F.3d 723, 727 (7th Cir. 2010). Here
ample evidence establishes that Mullins intended to cheat
Cook County out of money. According to the witnesses,
Mullins altered proposals and wrote invoices to fit below the
$25,000 approval threshold and thereby avoided detection
by the Board of Commissioners. He then helped the vendors
receive payments before they completed any work and de-
spite never delivering services commensurate with the coun-
ty’s payments to them. By helping to arrange for these pro-
posals, invoices, and payments for incomplete work, the
scheme and Mullins’s participation in it is adequately sup-
ported. See Sheneman, 682 F.3d at 629 (finding sufficient evi-
dence where defendant took active role in misleading victim
bank). Accordingly, the government adequately proved wire
fraud.
8 No. 14-1701
To prove bribery under 18 U.S.C. § 666(a)(1)(B) the gov-
ernment must show that a public agent solicited “corruptly
anything of value” in connection with a transaction of $5,000
or more. 18 U.S.C. § 666(a)(1)(B); see United States v. Blago-
jevich, No. 11-3853, 2015 WL 4433687, at *4 (7th Cir. July 21,
2015); United States v. Robinson, 663 F.3d 265, 271 (7th Cir.
2011). An agent acts corruptly when he understands that the
payment given is a bribe, reward, or gratuity. See United
States v. Hawkins, 777 F.3d 880, 882 (7th Cir. 2015). To attack
the sufficiency of the bribery conviction, Mullins raises two
arguments, but they are both meritless.
Mullins first contends that he did not act corruptly be-
cause, he says, other departments requested the work and
approved the contracts from the vendors. But Mullins him-
self testified that his input and recommendation were im-
portant in choosing vendors. And he used his influence cor-
ruptly. As already observed, Mullins altered the invoices to
remain under $25,000 and kept himself in the approval pro-
cess. Later, when the vendors received their fees, Mullins re-
quired and received cash kickbacks under the ruse, as Peery
explained, that the kickback payments were for “subcontrac-
tors.” In reality the payments were given to Mullins to se-
cure future awards from Cook County, as Render testified.
Thus, jurors could infer that the cash that Mullins received
from vendors was a reward—a bribe—for buying his influ-
ence in obtaining their contracts.
Mullins also contends that he cannot be convicted of
bribery because the government produced no evidence of
quid pro quo, such as the vendors receiving something in
return for the bribe. But they did receive something—their
contracts. In any case, evidence of quid pro quo is not neces-
No. 14-1701 9
sary to establish a violation of § 666(a)(1)(B). See United States
v. Boender, 649 F.3d 650, 654 (7th Cir. 2011); United States v.
Gee, 432 F.3d 713, 714–15 (7th Cir. 2005). Thus, the bribery
counts are intact.
B. Prosecutorial Misconduct
Mullins next argues that the convictions should be over-
turned because he identifies three instances of prosecutorial
misconduct: suborning perjury, intimidating witnesses, and
making improper statements during closing arguments. We
take these contentions in turn.
Mullins argues that the prosecutor twice elicited perjured
testimony at trial. He contends that Mullins’s secretary,
Goldsmith, testified falsely about his initials on documents.
And, he maintains Borner lied about whether he had report-
ed to the prosecution any threats to shut down his wife’s
business. Both arguments are unpersuasive.
Goldsmith’s testimony was not perjurious. She merely
testified to her lay opinion that the initials on the proposals
belonged to Mullins. Whether or not her opinion was cor-
rect, her testimony was permissible. See United States v. Tip-
ton, 964 F.2d 650, 655 (7th Cir. 1992) (lay witness may give
opinion about handwriting); United States v. Binzel, 907 F.2d
746, 749 (7th Cir. 1990) (same).
Borner’s situation is more complicated, but his testimony
was not perjurious either. It is true that during cross exami-
nation he denied reporting to the prosecution that anyone
had threatened to shut down his wife’s day care business,
even though the prosecution had disclosed before trial the
fact of his recent report. But the government solicited from
Borner on redirect the clarification that three years earlier,
10 No. 14-1701
when the threats were supposedly made, he had not known
of or reported them to the prosecution; only when he
learned about the threats shortly before trial did he report
them. The prosecution thus properly elicited truthful and
complete testimony, see United States v. Guadagno, 970 F.2d
214, 219–20 (7th Cir. 1992), ensuring that the jury had all
truthful information before it when making its decision.
Mullins next argues that the prosecution intimidated
Peery into testifying against him. An allegation of witness
intimidation requires proof that a witness was persuaded
into providing false testimony to the court through physical
force or threats. See United States v. Holt, 460 F.3d 934, 938
(7th Cir. 2006); United States v. Balzano, 916 F.2d 1273, 1291
(7th Cir. 1990). During cross-examination Peery said that the
agent who had questioned him during the pretrial investiga-
tion was “gruff” and that the questioning process itself was
“intimidating.” Peery, however, also stated that he testified
truthfully and did so to obtain the terms of his deferred-
prosecution agreement. Given the record as a whole, Mullins
has not proven that force or improper threats impelled false
testimony.
Mullins’s final contention concerns the prosecutor’s
statements during closing argument. He asserts that the
prosecution misstated Crawford’s testimony about the
County’s practice concerning advanced payment before
completed work. Misstatements of evidence during closing
argument can be improper, see United States v. Wolfe, 701 F.3d
1206, 1214 (7th Cir. 2012), but it is rarely reversible error, see
United States v. Anderson, 450 F.3d 294, 300 (7th Cir. 2006).
Here the prosecutor argued that every witness had said that
Cook County did not pay on service contracts in advance of
No. 14-1701 11
completed work, even though Crawford had testified that
the County could do so but that the practice was unusual.
To determine whether the misstatement prejudiced Mul-
lins and requires reversal we consider whether (1) Mullins
invited the remark, (2) the judge offered curative instruc-
tions, (3) the defense could have rebutted the misstatement,
and (4) the weight of the evidence against Mullins is none-
theless strong. See United States v. Durham, 766 F.3d 672, 685
(7th Cir. 2014); United States v. Myers, 569 F.3d 794, 799 (7th
Cir. 2009).
Looking at the record as a whole, we are confident that
the misstatement did not prejudice Mullins. First, the de-
fense immediately objected to the prosecutor’s misstatement.
Second, the judge promptly issued a curative instruction,
reminding the jurors that their recollection of the evidence
controlled. Third, the prosecutor later altered the statement,
correctly telling the jury that Crawford had testified that it
was sound practice for Cook County to pay vendors after the
vendors completed work. Fourth, this misstatement came
against the backdrop of the abundant evidence showing that
Mullins solicited bribes for contracts and fraudulently al-
tered vendors’ proposals and invoices through email to
avoid detection. Thus, this one minor misstatement did not
infect the trial with unfairness such that a new trial is neces-
sary. See United States v. Johnson, 655 F.3d 594, 599, 602 (7th
Cir. 2011) (upholding decision not to grant new trial when
single misstatement, which was immediately corrected, was
given by the prosecution during opening statement); United
States v. McMath, 559 F.3d 657, 667–68 (7th Cir. 2009) (finding
that improper remarks at trial when combined with a cura-
tive jury instruction did not affect trial fairness).
12 No. 14-1701
III. CONCLUSION
Accordingly, we AFFIRM the judgment of the district
court.