In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-‐‑1892 & 14-‐‑1908
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
THOMAS HAWKINS and JOHN W. RACASI,
Defendants-‐‑Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 528 — John J. Tharp, Jr., Judge.
____________________
ARGUED JANUARY 7, 2015 — DECIDED JANUARY 26, 2015
____________________
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
EASTERBROOK, Circuit Judge. Thomas Hawkins and John
Racasi were employed as analysts on the staff of Larry Rog-‐‑
ers, a member of the Cook County Board of Review, when
they accepted money from Ali Haleem, a corrupt Chicago
police officer acting as an undercover agent in order to re-‐‑
duce the penalties for his own crimes. The Board of Review
hears complaints by property owners who believe that the
2 Nos. 14-‐‑1892 & 14-‐‑1908
assessed valuation (which affects real-‐‑estate taxes) is exces-‐‑
sive. Haleem paid Hawkins and Racasi to arrange for lower
assessments. They took his money, and the assessments
were reduced, except for one parcel about which the protest
was untimely. A jury found that Hawkins and Racasi had
violated 18 U.S.C. §666 (theft or bribery concerning pro-‐‑
grams receiving federal funds) and §1341 (mail fraud), plus
corresponding prohibitions of conspiracy. Hawkins and
Racasi contend that they committed a different offense—
they assert that they took the money with the intent to de-‐‑
ceive Haleem and did nothing in exchange for the cash—and
that the jury convicted them of the indictment’s charges only
because it was improperly instructed.
The parties agree that Cook County is covered by §666
and that the financial effect of the lower assessed valuations
exceeds the $5,000 required for a conviction. Section
666(a)(1)(B) provides that any agent of a covered organiza-‐‑
tion who “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 trans-‐‑
actions of such organization” commits a felony. The prosecu-‐‑
tor contended, and the jury found, that Hawkins and Racasi
took Haleem’s money “intending to be influenced or re-‐‑
warded” in connection with their jobs as analysts.
They do not complain about the jury instruction on this
element, which told the jury that it must find that they acted
with one of the two forbidden intents: an intent to be influ-‐‑
enced, or an intent to be rewarded. Their theory of defense—
that they took the money planning to deceive Haleem—
amounted to a confession of accepting payment with intent
Nos. 14-‐‑1892 & 14-‐‑1908 3
to be “rewarded” for their positions. This part of §666 for-‐‑
bids taking gratuities as well as taking bribes. See United
States v. Anderson, 517 F.3d 953, 961 (7th Cir. 2008); United
States v. Ganim, 510 F.3d 134, 150 (2d Cir. 2007); United States
v. Zimmerman, 509 F.3d 920, 927 (8th Cir. 2007); United States
v. Agostino, 132 F.3d 1183, 1195 (7th Cir. 1997). Contra, United
States v. Fernandez, 722 F.3d 1, 22–26 (1st Cir. 2013). (Defend-‐‑
ants have not asked us to overrule Anderson and Agostino in
favor of the position taken in Fernandez.) The record shows
that the payments were, if not bribes, then gratuities (from
defendants’ perspectives) even if Haleem would have pre-‐‑
ferred to get something for his money. The jury may well
have found that defendants intended to be influenced; but if
they did not, then they intended to be rewarded for the posi-‐‑
tions they held, if not for services delivered. They are guilty
either way.
The contrary argument rests on the word “corruptly”.
Hawkins and Racasi maintain that, to show that they acted
corruptly, the prosecutor must prove that they took the
money intending to perform an official act in exchange. The
judge thought otherwise and told the jury that a covered
agent acts “corruptly” if he takes money “with the under-‐‑
standing that something of value is to be offered or given to
reward or influence him in connection with his official du-‐‑
ties.” In other words, the “corruption” entails the payee’s
knowledge that the payor expects to achieve a forbidden in-‐‑
fluence or deliver a forbidden reward. This definition of
“corruptly” comes from the Seventh Circuit’s Pattern Crimi-‐‑
nal Jury Instructions (2012 ed.) for §666 (see page 205), which
derived it from United States v. Bonito, 57 F.3d 167, 171 (2d
Cir. 1995). This court has used the same definition of “cor-‐‑
4 Nos. 14-‐‑1892 & 14-‐‑1908
ruptly” in a prosecution under 18 U.S.C. §201. See United
States v. Peleti, 576 F.3d 377, 382 (7th Cir. 2009).
Defendants want us to overrule Peleti and disapprove
Bonito. We shall do neither. Defendants treat the word “cor-‐‑
ruptly” as effectively removing the statute’s prohibition of
taking money as a “reward”. Using one statutory word to
blot out another would be unsound. The understanding in
Peleti and Bonito leaves work for all words in this statute. As
defined in the instruction, agents of a covered jurisdiction
act corruptly if they know that the payor is trying to get them
to do the acts forbidden by the statute, and they take the
money anyway. That’s a sensible definition of “corruptly”.
As this jury was instructed, Hawkins and Racasi could be
convicted only if (a) the payee intended to be influenced
(that is, to perform some quid pro quo) or rewarded; (b) the
payor intended to influence or reward the defendants, and
(c) the payee knew the payor’s intent. That is a triple safe-‐‑
guard against criminalizing innocent acts. (Though it does
not matter to the instructions issue, we add that Haleem’s
payments were not small, and the recorded conversations
show that they were not innocent.)
The convictions under §1341 pose a different problem.
The mail-‐‑fraud statute is not as detailed as §666. It prohibits
schemes to defraud that use the mails but does not elaborate.
Hawkins and Racasi may have defrauded Haleem out of his
money (this was their defense!), but that was not the prosecu-‐‑
tor’s theory. The United States relied on 18 U.S.C. §1346,
which defines scheme to defraud as including “a scheme or
artifice to deprive another of the intangible right of honest
services.” The idea is that the employer has a right to loyalty
from agents and employees, and the prosecutor contended
Nos. 14-‐‑1892 & 14-‐‑1908 5
that Hawkins and Racasi deprived Cook County of their
loyal services by taking Haleem’s money secretly. But “hon-‐‑
est services” is open-‐‑ended, and in Skilling v. United States,
561 U.S. 358 (2010), the Justices deflected a contention that it
is so open-‐‑ended as to be unconstitutionally vague. They did
this by holding that §1346 covers only bribery and kickbacks.
This means that an agent’s secret receipt of a gratuity (a
“reward” in the language of §666) does not violate §1341, for
a payment that does not entail a plan to change how the em-‐‑
ployee or agent does his job is neither a bribe nor a kickback.
The district court instructed the jury that it could convict
defendants under §1341 only if they “intended to deprive
another of the intangible right to honest services through
bribery.” So far, so good. (The instructions did not mention
kickbacks, because the prosecutor did not allege any.) But
the instructions then defined bribery this way:
A defendant commits bribery when he, while acting as an agent
of government, or any agency of that government, such as Cook
County, solicits, demands, accepts, or agrees to accept, anything
of value from another person corruptly intending to be influ-‐‑
enced or rewarded in connection with some business, transac-‐‑
tion or series of transactions of the government or government
agency.
Under this instruction, defendants committed “bribery” if
they took Haleem’s money “intending to be … rewarded”
for their official positions, even if they did not plan to lift a
finger to reduce the properties’ assessed valuations. Treating
a gratuity as a bribe transgresses Skilling. The word “cor-‐‑
ruptly” in this instruction does not save it, given the way a
different instruction defined “corruptly” (a subject we dis-‐‑
cussed above).
6 Nos. 14-‐‑1892 & 14-‐‑1908
The district judge devised the definition of bribery on his
own. The prosecutor had proposed this language, from the
2012 edition of the Pattern Criminal Jury Instructions:
A defendant commits bribery when he demands, solicits, seeks,
or asks for, or agrees to accept or receive, or accepts or receives,
directly or indirectly, something of value from another person in
exchange for a promise for, or performance of, an official act.
The judge drafted an instruction that tracks §666 (by includ-‐‑
ing “reward”) rather than use the circuit’s pattern instruc-‐‑
tion for §1341 because, he said, the jury would be confused if
the §666 and §1341 charges were treated differently. Yet if
the statutes are different, the jury must be told.
The United States now defends the district judge’s in-‐‑
struction despite its use of “reward.” It contends that treat-‐‑
ing a gratuity as a bribe is consistent with Skilling because, in
the course of a lengthy opinion, the Supreme Court cited 18
U.S.C. §201(b), the principal bribery statute for federal em-‐‑
ployees, see 561 U.S. at 412 & n.45, and §201(b) permits con-‐‑
viction on proof that the defendant accepted a reward. But
that’s not what Skilling says. It reversed Skilling’s conviction
because he did not accept anything of value “in exchange
for” making misrepresentations to Enron’s investors. 561
U.S. 413. If accepting some reward were enough, then Skil-‐‑
ling’s conviction would have been affirmed—for the theory
in Skilling’s own mail-‐‑fraud prosecution was that he had
been rewarded (by his salary) for his services during a time
when Enron violated the securities laws. The Justices
thought that bribery entails a quid pro quo (planned or real-‐‑
ized), not just a receipt of money. And §201 says the same
thing. Section 201(b)(2) provides that whoever
Nos. 14-‐‑1892 & 14-‐‑1908 7
being a public official … directly or indirectly, corruptly de-‐‑
mands, seeks, receives, accepts, or agrees to receive or accept an-‐‑
ything of value personally or for any other person or entity, in
return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to
collude in, or allow, any fraud, or make opportunity for the
commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of
the official duty of such official or person
commits bribery. Subsection (b) requires proof that the pub-‐‑
lic official demanded or took money in exchange for doing
or omitting some official act. Accepting a “reward” for doing
something the official would have done anyway does not
violate §201(b). By contrast, §201(c), to which Skilling did not
refer when identifying “bribery”, prohibits some kinds of
rewards, though far from all. United States v. Sun-‐‑Diamond
Growers of California, 526 U.S. 398 (1999).
The United States maintains that proof of a completed
exchange is not essential, and that’s right. A plan to take
money in exchange for an official act constitutes a scheme to
defraud, whether or not the plan succeeds. We agree with
this aspect of decisions such as United States v. McDonough,
727 F.3d 143, 159–60 (1st Cir. 2013); United States v. Rosen, 716
F.3d 691, 700–02 (2d Cir. 2013); and United States v. Bryant,
655 F.3d 232, 244–45 (3d Cir. 2011), on which the prosecutor
relies. But none of these opinions holds that accepting a “re-‐‑
ward” without doing anything in exchange—or ever plan-‐‑
ning to—is “bribery” that can support a mail-‐‑fraud convic-‐‑
tion after Skilling. That’s the problem in this instruction.
8 Nos. 14-‐‑1892 & 14-‐‑1908
The United States weakly argues that any error was
harmless, but that contention relies entirely on the undisput-‐‑
ed fact that the defendants told Haleem that payments
would induce them to lower the assessments. Yet defendants
contend that they were lying. If they were indeed lying, then
they can’t be convicted under §1341, even though the convic-‐‑
tions under §666 are valid. The definition of “bribery” in the
instructions allowed the jury to bypass the question whether
Hawkins and Racasi were scamming Haleem rather than
Cook County. The error therefore cannot be called harmless,
and defendants are entitled to a new trial of the mail-‐‑fraud
charges.
Because the subject may occur on resentencing—
immediately if the United States elects to dismiss rather than
retry the mail-‐‑fraud charges, later if a new trial is held—we
discuss defendants’ contention that the judge erred by en-‐‑
hancing their offense levels under U.S.S.G. §2C1.1(b)(3). This
provision reads: “If the offense involved an elected public
official or any public official in a high-‐‑level decision-‐‑making
or sensitive position, increase by 4 levels. If the resulting of-‐‑
fense level is less than level 18, increase to level 18.” The
judge concluded that Hawkins and Racasi each occupied “a
high-‐‑level decision-‐‑making or sensitive position”. They
maintain, to the contrary, that they served in menial posi-‐‑
tions with only ministerial functions.
Cook County updates real-‐‑estate assessments every three
years. Taxpayers dissatisfied with a new valuation may
complain to the Board of Review. Each of the Board’s three
commissioners employs analysts, and a protest is assigned
initially to an analyst for one of the commissioners (unless
the owner requests a formal hearing, as Haleem did not).
Nos. 14-‐‑1892 & 14-‐‑1908 9
Cook County assigns every parcel an index number. An ana-‐‑
lyst types the index number into a computer; the database
software responds with a list of other parcels located near
the one in question, together with their assessed values. The
analyst is supposed to choose the other parcels most similar
to the one in question; the computer then changes the as-‐‑
sessment to make it more like the parcels selected as compa-‐‑
rable. (Note that this compares one assessment against oth-‐‑
ers, rather than the contested assessment against market
transactions; we have not been asked to decide whether this
is a sensible procedure.)
Data show that this procedure leads to some reduction
79% of the time, and the parties agree that commissioners
tell their staffs to favor modest reductions to keep constitu-‐‑
ents happy. If the first analyst recommends a reduction, the
file goes to an analyst for a second commissioner and then a
third; the majority rules. Neither the second nor the third
analyst repeats the work done by the first, unless something
in the file suggests that comparable properties have been
generated or compared improperly.
These facts set up the dispute: defendants say that ana-‐‑
lyst cannot be a “high-‐‑level” or “sensitive” position, because
the software limits the choice of comparable parcels and oth-‐‑
er analysts could outvote them. (The record does not show
what functions, if any, the commissioners themselves per-‐‑
form.) The prosecutor replied that analysts have effectively
unlimited discretion to choose which parcels on the comput-‐‑
er-‐‑generated list to use for comparison and that the choice of
comparable properties determines the outcome of the own-‐‑
er’s protest. The prosecutor illustrated this by pointing out
that Hawkins told Haleem that he could reduce the assess-‐‑
10 Nos. 14-‐‑1892 & 14-‐‑1908
ment of a parcel substantially by comparing it with another
parcel that was “just a lot.” The district judge sided with the
prosecutor and did not err in doing so. How much discretion
a particular person possesses is a question of fact. The dis-‐‑
trict judge resolved the factual dispute against defendants
without committing a clear error; and given that finding the
application of §2C1.1(b)(3) is not an abuse of discretion.
It is perplexing that the parties have devoted so much at-‐‑
tention to this subject, because the district judge imposed
sentences well below the Guideline range of 33 to 41 months
for each defendant: 24 months for Hawkins and 18 months
for Racasi. The judge did not imply that the sentences would
have been lower still, had he resolved the §2C1.1(b)(3) issue
in defendants’ favor. We have encouraged district judges to
bypass debatable issues in the calculation of Guideline rang-‐‑
es if the issues turn out not to matter, and to state on the rec-‐‑
ord whether the sentence would have been the same if the
debated issue had come out the other way. See, e.g., United
States v. Lopez, 634 F.3d 948, 953–54 (7th Cir. 2011); United
States v. Sanner, 565 F.3d 400, 405–06 (7th Cir. 2009); cf. Peugh
v. United States, 133 S. Ct. 2072, 2088 n.8 (2013) (a mistake in
calculating the Guidelines level is harmless if the sentencing
judge makes clear that the disputed issue did not affect the
sentence). We encourage the district judge to follow that ap-‐‑
proach if a further dispute crops up on remand.
The §666 convictions are affirmed and the §1341 convic-‐‑
tions vacated. The cases are remanded for further proceed-‐‑
ings consistent with this opinion.