United States v. Buncich

926 F.3d 361 (2019) United States Court of Appeals for the Seventh Circuit 2019-06-05

criminal appeal from jury convictions on five counts of honest-services wire fraud (18 U.S.C. §§ 1343, 1346) and one of § 666 bribery; Counts I-III reversed because the charged wire transfers were not proved, Counts IV-V affirmed on sufficiency; Rule 404(b) error harmless (result: mixed)

Facts

  1. 5 Transmission or causation by wire, radio, television not no-evidence
    To establish wire fraud under 18 U.S.C. § 1343, the government must prove the defendant (1) participated in a scheme to defraud, (2) intended to defraud, and (3) used interstate wires in furtherance of the fraud.
  2. 5 Transmission or causation by wire, radio, television not no-evidence
    Both parties agree the evidence presented to the trial court failed to establish the wire transfers that were the basis of Counts I-III.
  3. 5 Transmission or causation by wire, radio, television not no-evidence
    Buncich's conviction on Counts I-III is hereby reversed.
  4. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved
    On October 14, 2014, Jurgensen and Szarmach each gave Downs $ 500 cash and a check for $ 2,000 made out to the Lake County Central Democratic Committee.
  5. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved
    An honest services fraud scheme covers only bribery or kickbacks.
  6. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved
    On the contrary, from the record here a rational jury could conclude that these payments were made to Buncich in exchange for official acts.
  7. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved
    "The exchange of an official act for money violates federal law, no matter how the recipient uses the cash."
  8. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved
    Jurgensen testified that donating to the Buncich campaign was necessary to maintain his towing assignments.
  9. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved
    Downs told Jurgensen and Szarmach that Buncich intended to remove towing companies and that those who "weren't very friendly" would "probably bite the dust."
  10. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved
    Buncich then moved the heavy tow boundary, increasing Szarmach's tows and the profits of both men.
  11. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved
    These conclusions were rationally based on the evidence presented, and the guilty verdict is affirmed as to Counts IV and V.