United States v. Eddie Hicks

In the
United States Court of Appeals
For the Seventh Circuit
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No. 20-2970
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDDIE C. HICKS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:01-CR-00101(1) — Joan H. Lefkow, Judge.
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ARGUED SEPTEMBER 29, 2021 — DECIDED OCTOBER 6, 2021
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Before EASTERBROOK, RIPPLE, and ST. EVE, Circuit Judges.
EASTERBROOK, Circuit Judge. For about 30 years, Eddie
Hicks worked as a police officer in Chicago. A jury concluded
that he used his position to steal drugs and guns from pushers
and to extort money from them. Hicks and his confederates
(some on the force and others who used fake badges to make
people believe they were) obtained from informants and other
officers information about where drugs might be found. Then
they used police cars and other departmental equipment to
2 No. 20-2970
search drug houses and cars thought to be carrying drugs.
They used forged search warrants to reduce resistance to
these tactics. After stealing drugs and guns, Hicks and his
crew let the suspects go—sometimes after exchanging the
contraband for cash. Contraband that could not be sold back
to the dealers was sold on the black market and the proceeds
divided among members of the crew. See United States v. Har-
grove, 508 F.3d 445, 447–48 (7th Cir. 2007) (affirming the con-
victions of one of Hicks’s confederates).
The jury convicted Hicks of eight felonies, including fail-
ure to appear on the day initially set for his trial. (He was a
fugitive for about 15 years.) Sentenced to a total of 146
months’ imprisonment, he does not contest the sufficiency of
the evidence. It was overwhelming. But he does contest the
convictions on three counts: Count 1, which charged him with
violating the Racketeer Influenced and Corrupt Organiza-
tions Act (RICO), 18 U.S.C. §1962, and Counts 7 and 8, which
charged him with stealing money belonging to the United
States, 18 U.S.C. §641. The laaer crimes reflect the fact that the
FBI got wind of Hicks’s operations and provided money as
bait in places they thought he might rob. Not knowing that he
was being investigated, Hicks and his crew took the bait. Be-
cause the money Hicks stole was property of the United
States, he was charged with violating §641.
A person violates RICO by running or managing an “en-
terprise” through a “paaern of racketeering activity,” which
the statute further defines as the commission of listed predi-
cate crimes. The paaern of racketeering activity can be com-
miaed directly or through a conspiracy. To become a paaern,
predicate acts must be separate from each other but related in
some way. Conviction also depends on proof that the
No. 20-2970 3
activities of the enterprise were in or affected interstate com-
merce. Applying RICO is a notoriously complex endeavor,
see H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229(1989), and Hicks maintains that the jury at his trial could well
have confused the conspiracy with the “enterprise” or treated
the paaern of other crimes (such as stealing or possessing
drugs and guns) as if it were the enterprise or the conspiracy,
or perhaps misunderstood how predicate offenses must be re-
lated to form a paaern.
The problem with this line of argument lies in phrases
such as “could well” and words such as “perhaps.” We cannot
look inside jurors’ minds to see whether they were confused.
All a court of appeals can examine is objective events, such as
the terms of the indictment, the language of the jury instruc-
tions, and the arguments of counsel. Yet Hicks did not contest
any of these maaers in the district court. He did not move to
dismiss the indictment, so we must assume that it states a
technically sufficient RICO charge. (And, to our eyes, it does.)
Hicks did not object to any of the jury instructions; to the con-
trary, his counsel approved them. Nor did Hicks request any
additional instructions in order to help the jurors keep the dif-
ferent concepts straight. Finally, Hicks did not object to the
prosecutor’s closing arguments about what needed to be
proved, and how, in the prosecutor’s view, that had been ac-
complished. This combination of waiver (approving the jury
instructions) and forfeiture (not objecting to the indictment or
argument; not asking for more disambiguation from the
judge) leaves Hicks in a hopeless position on appeal. We do
not see anything approaching plain error with respect to the
issues that were forfeited—and those that were waived can-
not be called error at all. See, e.g., United States v. Olano, 507
4 No. 20-2970
U.S. 725, 732–38 (1993). That’s all we need to say about the
RICO conviction.
Section 641 says in part:
Whoever embezzles, steals, purloins, or knowingly converts to his
use or the use of another, or without authority, sells, conveys or
disposes of any record, voucher, money, or thing of value of the
United States or of any department or agency thereof, or any
property made or being made under contract for the United States
or any department or agency thereof [commits a felony].
Hicks contends that the instructions on Counts 7 and 8 were
defective because they did not tell the jurors that conviction
depended on finding beyond a reasonable doubt that he knew
that the money he stole belonged to the United States or one
of its agencies, such as the FBI. His lawyer’s approval of the
instructions is a big obstacle to relief, but we need not stop
there. The issue that Hicks raises potentially arises in every
§641 prosecution, so we make clear that knowledge about
who owns the money is not essential to conviction under
§641. Ownership is instead the source of the national govern-
ment’s authority to penalize the theft. Often this is called a
“jurisdictional element,” but that’s misleading. It has nothing
to do with subject-maaer jurisdiction, which 18 U.S.C. §3231supplies for all federal criminal prosecutions. See United
States v. Martin, 147 F.3d 529 (7th Cir. 1998). It is instead why
the national government’s authority obtains, even though
robbery normally is a maaer of state concern only.
Many courts have held that, in a prosecution under §641,
knowledge of the money’s ownership need not be proved.
See, e.g., United States v. Jermendy, 544 F.2d 640, 641 (2d Cir.
1976); United States v. Crutchley, 502 F.2d 1195, 1201 (3d Cir.
1974); United States v. Jeffery, 631 F.3d 669, 675–76 (4th Cir.
No. 20-2970 5
2011); United States v. Boyd, 446 F.2d 1267, 1274 (5th Cir. 1971);
United States v. Sivils, 960 F.2d 587, 595 (6th Cir. 1992); United
States v. Denmon, 483 F.2d 1093, 1094–95 (8th Cir. 1973); United
States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970); United
States v. Speir, 564 F.2d 934, 938 (10th Cir. 1977) (en banc);
United States v. Baker, 693 F.2d 183, 186 (D.C. Cir. 1982). We are
among them. See United States v. Smith, 489 F.2d 1330, 1334
(7th Cir. 1973). Hicks asks us to disregard all of these decisions
on the ground that they don’t supply much explanation. It
may well be that some or all of these decisions are curt, but
that’s understandable in light of established norms.
Many criminal statutes require the prosecutor to prove
one or more facts that are essential to the assertion of federal
power. They may require, for example, proof that the conduct
affected interstate commerce, see 18 U.S.C. §1951, or proof
that the bank was insured by the Federal Deposit Insurance
Corporation, see 18 U.S.C. §2113, or proof that the person in-
jured in an aaack was a federal agent engaged in official du-
ties, see 18 U.S.C. §§ 111, 1114. In all of these situations, and
more, a conviction does not depend on the offender’s
knowledge of the circumstance that caused the prosecution to
be in federal rather than state court.
United States v. Feola, 420 U.S. 671 (1975), explains why, for
§111 in particular. We choose that statute as a benchmark be-
cause it deals with aaacks on federal officers, parallel to the
way §641 deals with thefts of federal property. The Court
summarized the history of prosecutions under statutes con-
taining elements that justified the invocation of federal au-
thority and observed that it had never been necessary to show
that the accused knew of the federal connection. The Justices
continued:
6 No. 20-2970
We conclude, from all this, that in order to effectuate the congres-
sional purpose of according maximum protection to federal offic-
ers by making prosecution for assaults upon them cognizable in
the federal courts, §111 cannot be construed as embodying an un-
expressed requirement that an assailant be aware that his victim
is a federal officer. All the statute requires is an intent to assault,
not an intent to assault a federal officer. A contrary conclusion
would give insufficient protection to the agent enforcing an un-
popular law, and none to the agent acting under cover.
420 U.S. at 684 (footnote omiaed). That conclusion is equally
applicable to §641. The prosecution must show an intent to
steal—that is, an intent to take property knowing that it be-
longs to someone else—but not that the defendant knew its
true owner. Any other approach would offer liale or no pro-
tection when the federal property is part of an undercover op-
eration, as it was in the investigation of Hicks’s thefts.
Hicks does not advance any reason why §641 would re-
quire knowledge of the federal connection when §111 does
not. Instead he observes that, in recent years, the Supreme
Court has required proof that the defendant know other ele-
ments of other statutes. His lead example is Rehaif v. United
States, 139 S. Ct. 2191 (2019), which holds that a person may
be found guilty of possessing firearms as a convicted felon
only if he knows that his record includes a disqualifying con-
viction. The Court held that the defendant must know that he
has been convicted of a crime punishable by a year or more in
prison (that’s what disqualifies a person from possessing
guns), though the jury need not find that the defendant knew
the legal effect of such a conviction. Hicks asks us to extend
this sort of knowledge requirement to all other elements of all
federal crimes.
No. 20-2970 7
Yet Rehaif does not question the continued vitality of
Feola—and, even if it did, we could not deem Feola a dead let-
ter unless the Justices themselves overrule it. Feola addresses
the question whether conviction depends on a defendant’s
knowledge of the reason the case is in federal rather than state
court. Rehaif dealt with a different sort of problem: knowledge
of a fact essential to the existence of any crime. The jury was
told that Hicks could be convicted only if he knew that the
money he took did not belong to him. That’s what made the
taking a robbery; knowing that it was a federal rather than a
state robbery is not essential, given Feola.
AFFIRMED