Petition for Writ of Certiorari — Turner v. United States (No. 08-1334)

suprerie < Cont US.

\W 10) 081334 APR27 2009

N0- @FFIGE-OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

CECIL TURNER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Michael J. Gonring

Counsel of Record

QUARLES & BRADY LLP

411 E. Wisconsin Ave.

Milwaukee, WI 53202-4497

(414) 277-5000

1)

ois

QUESTION PRESENTED FOR REVIEW

Do direct deposits that would occur regard-

less of the charged scheme satisfy the fur-

therance element of 18 U.S.C. § 1343 when

the charged scheme is the deliberate failure

of an employee to fulfill his job responsibili-

ties?

PARTIES TO THE PROCEEDING

Petitioner is Cecil Turner, defendant-appellant

below.

Respondent is the United States of America,

plaintiff-appellee below.

-iH-

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW................ i

PARTIES TO THE PROCEEDING ......................0.. ii

Pa GP PAE IE FOI von csc cnkcacecsccecssecsesesescoccsss iv

PETITION FOR A WRIT OF CERTIORARI............ 1

ss scccscdauedanvnnstisavarssbess vweseonk 1

ss sas avdsheeusnsbcduacsundneevenns 1

Fa re Bs MED vanceseeccscasccvecccsvevescecsonsenecvanes 1

SITATBMEN LT OF THE CASE. .......ccccccsescecsccsccscccecses 2

Bi PI ios coscicnveciicviaccsecscesrecsenccess 4

A. Turner’s Job Responsibilities .............. 5

B. The Job Responsibilities of

Dinora, Medvesek and Boyce .......... 6

C. ‘The damitere Seneme..................0.0+<0.. 7

D. Turner’s Role in the Janitors’

os cssnenvaenes 9g

E. Turner Received No Benefit for

Any Participation in the

BO |) 9

F. The Government’s Charges

Against Turner and the Use

of Wire Communications ............... 10

TZ. Appellate JUPiSdictiONn ....0..<...00.cccecescessccessss 11

III. Court of Appeals Decision ...................0000008 11

REASONS FOR GRANTING THE WRIT.............. 12

i cvkacepnndeens 20

APPENDIX — 7th Circuit Decision ........................ 1A

APPENDIX —- Order Denying Petition for

NE iets case reuel sbitsslanidsereededceneds 25A

APPENDIX — Amended Indictment .................... 2TA

-lV-

TABLE OF AUTHORITIES

Page

CASES

Kann v. United States, 323 U.S. 88,

65 S. Ct. 148, 89 L. Ed. 88 (1944)......... 13, 16, 17

Parr v. United States, 363 U.S. 370,

80 S. Ct. 1171, 4 L. Ed. 2d 1277

CIs icdavekcadiuctanedasiedcuabisus tebtenbad 13, 14, 16, 17, 18

Schmuck v. United States, 489 U.S.

705, 109 S. Ct. 1443, 103 L. Ed. 2d

Fae OE iaslainvsdicdunstadedecemcstidaciebes 2, 16, 17, 18, 19

United States v. Kwiat, 817 F.2d 440

ne 14, 15, 16, 19

United States v. Maze, 414 U.S. 395,

94S. Ct. 645, 38 L. Ed. 2d 603

Dg EAA Rey RR OST nen ce Oe Came 13, 14, 16, 17

United States v. Radziszewski, 474

Fe OF ie EE iknkivkcdcdscanececcinsecotecencens 10

United States v. Sorich, 523 F.3d 702

I 12

United States v. Strong, 371 F.3d 225

Ee SE ih ccmndsh aha ceedenastasnicsancoiesne 18, 19

United States v. Tarnopol, 561 F.2d

466 (3rd. Cir. 1977), abrogated on

other grounds by Griffin v. United

States, 502 U.S. 46, 112 S. Ct. 466,

a es ET FD wens snc ticcisavaceciesisinsescicines 2

-V-

TABLE OF AUTHORITIES (cont.)

Page

United States v. Turner, 551 F.3d 657

CE, BE cenccncvcnssicsaecesvin 1, 10, 11, 12, 13, 16

STATUTES

Be a ID din cavnccecesctetecvevnersasave nines, 11

BE Cons svi wndacacussuesdiienemsacuns 2,14, 15, 18

18 U.S.C. § 1348 ............ i, 1, 2, 10, 14, 12, 13, 16, 19

Be I esis icrcseins ctnccaaninsnciarce 2, 10, 11, 12, 36

se EE hiapitearetacsxcversen SEMEL ORPO OR Aint Fens nk ee 11

Ne Ae ICED < vicasnsavcnnnitesednpanidbnwecacoumennawnildcinda 1

EE: AE IIT. sts ecsivicccintiniosentunieceinnneesiienmenbeiain 11

PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The opinion of the court of appeals (Pet. App.

1A) is reported at United States v. Turner, 551 F.3d

657 (7th Cir. 2008). The court of appeals’ order

denying the petition for rehearing (Pet. App. 25A-

26A) is not reported.

JURISDICTION

The court of appeals entered judgment on

December 30, 2008. (Pet. App. 1A.) The court

denied a timely petition for rehearing on January

28, 2009. (Pet. App. 25A.) The jurisdiction of the

Court is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 1343 of Title 18, United States Code,

provides in relevant part: “Whoever, having devised

or intending tc devise any scheme or artifice to

defraud, or for obtaining money or property by

means of false or fraudulent pretenses, repre-

sentations, or promises, transmits or causes to be

transmitted by means of wire, radio, or television

communication in interstate or foreign commerce,

any writings, signs, signals, pictures, or sounds for

the purpose of executing such scheme or artifice,

shall be fined under this title or imprisoned not

more than 20 years, or both.”

2

Section 1346 of Title 18, United States Code,

provides in relevant part: “For the purposes of this

chapter, the term ‘scheme or artifice to defraud’

includes a scheme or artifice to deprive another of

the intangible right of honest services.”

STATEMENT OF THE CASE

This case concerns the breadth of the federal

government's jurisdiction to prosecute workplace

misconduct as wire fraud under 18 U.S.C. § 1343.

The Court last considered the necessary connection

between the use of the mail and a charged scheme

under 18 U.S.C. §1341 in Schmuck v. United

States, 489 U.S. 705, 109 S. Ct. 1443, 103 L. Ed. 2d

734 (1989).1 In Schmuck, the Court held that to be

part of a fraudulent scheme, “the use of the mails

need not be an essential element of the scheme.”

Td.

Since Schmuck, the reach of the mail and wire

fraud statutes has extended. In this case, the

United States Court of Appeals for the Seventh

Circuit held that direct deposits of paychecks into

two janitors’ bank accounts was enough of a

l Cases construing the federal mail fraud statute,

18 U.S.C. § 1341, are applicable to interpreting the wire

fraud statute, 18 U.S.C. § 1343. See United States v.

Tarnopol, 561 F.2d 466, 475 (3rd. Cir. 1977), abrogated

on other grounds by Griffin v. United States, 502 U.S.

46, 1112S. Ct. 466, 166 L. Ed. 2d 371 (1991).

3

connection to charge three janitors and their

indirect supervisor with wire fraud based on the

janitors’ scheme to skip work and avoid detection.

The Court should take this opportunity to clarify

the necessary association between the use of the

wires and the charged scheme in a prosecution for

wire fraud.

The court of appeals’ decision demonstrates the

need for clarification. The court’s decision renders

relatively common workplace abuses prosecutable

as wire fraud by making the requirement that wire

communications are used “for the purpose of

executing such scheme” — generally referred to as

the “furtherance” requirement — a mere formality,

and by concluding that failing to fulfill one’s

employment duties is property, rather than honest

services fraud. The decision means that an

employee who takes sick leave when he is not sick

and receives his paycheck by direct deposit commits

wire fraud; an employee who takes too many or

excessively long breaks and receives his paycheck

by direct deposit commits wire fraud and an

employee who purposefully fails to fulfill any of his

job responsibilities and receives his paycheck by

direct deposit commits wire fraud. Likewise, as

this case demonstrates, supervisors of such

employees also are potentially guilty.

Given the percentage of workers who receive

their paychecks by direct deposit, the time is ripe

for the Court to clarify whether receiving a pay-

check by direct deposit extends the reach of wire

4

fraud to any workplace misconduct where an

employee’s job responsibilities go unfulfilled.

I. Background Facts

This case concerns three night janitors

employed by the state of [linois — Dana Dinora,

David Medvesek and Steven Boyce — who failed to

work as often as their jobs required, yet recorded

their hours as if they were fulfilling their duties.

(R. 67, Pet. App. 27A-28A.) Dinora, Medvesek and

Boyce were responsible for providing janitorial

services between the hours of 3:00 p.m. and 11:00

p.m. at state office buildings in Springfield, Illinois,

including the Herndon Building and the Court of

Claims building. (R. 67, Pet. App. 30A-31A.) The

three were indicted and pleaded guilty to wire

fraud based on their scheme to deceive supervisors

and others as to their failure to fully perform their

jobs. (T. 222, 435, 481.)? Cecil Turner was indicted

and convicted for aiding and abetting the janitors

by hindering the supervisors of Dinora, Medvesek

and Boyce from investigating and disciplining the

three janitors and for depriving the State of Illinois

of his honest services. (R. 77.) Turner also was

indicted and convicted of making false statements

to the FBI during its investigation of the scheme.

(RK. 77.)

3 The trial transcript is included in the record on

appeal at R. 147-150. For simplicity, we will cite to the

transcript by page number using the designation “T.”

5

A. Turner’s Job Responsibilities

Turner became the Director of the Division of

Physical Services for the Illinois Secretary of State

in 1999. (T. 655.) In that position, he supervised

between 300 and 500 employees of the State of

Illinois. (T. 654.) One of Turner’s responsibilities

as the Director of the Division of Physical Services

was the maintenance of State owned or occupied

buildings, including the buildings in which Dinora,

Medvesek and Boyce performed their janitorial

duties — the Herndon Building and the Court of

Claims building in Springfield, Illinois. (T. 15.)

Turner also oversaw engineers, construction

workers, maintenance workers and others. (T. 653-

54.)

Turner was not a direct supervisor of Dinora,

Medvesek or Boyce. (T. 14.) There were three

levels of supervision between Turner and the

janitors. (T. 14.) The organizational structure of

the Division of Physical Services placed the

director, Turner, at the top. (T. 14.) Reporting to

him was a deputy director, to whom division chiefs

reported. (T. 14.) The 75 janitors employed by the

Division of Public Services reported to building

managers, who were one step below the division

chiefs. (T. 14.)

Pursuant to the Dllinois Secretary of State

Policy Manual, all employees of the Illinois

Secretary of State were required to report viola-

tions of employment duties directly to the

Executive Inspector General. (T. 20.)

6

B. The Job Responsibilities of Dinora,

Medvesek and Boyce

Dinora, Medvesek and Boyce were responsible

for providing janitorial services at the Herndon

Building and the Court of Claims building.

(T. 470.) Dinora worked as a janitor for the

Secretary of State from 1987 to 2005. (T. 218.)

Turner promoted Dinora to lead night janitor after

Turner was appointed Director in 1999. (T. 247.)

Medvesek worked as a janitor for the Secretary of

State from 1985 to 2005. (T. 466.) Boyce worked as

a janitor for the Secretary of State from 1984 to

2005. (T. 412.)

Their hours of employment were between 3:00

p.m. and 11:00 p.m., Monday through Friday.

(T. 219-220.) For any period of time they were not

at work during those hours (other than for state

holidays and allowed breaks, including a dinner

break), they were required to submit and have

approved leave requests. (T. 416.)

From 1995 until March 31, 2004, Dinora also

was employed as an assistant superintendent for

the City of Springfield Public Works Department.

(T. 220-221.) In that position, Dinora directed

Public Works employees to perform various tasks,

including collection of trash and other items that

blocked a through-way or otherwise created a

public hazard in Springfield. (T. 232-33.)

7

C. The Janitors’ Scheme

The purpose of the janitors’ scheme was to

work less than they were required to without

applying for and receiving approved leave. The

charged scheme was from April of 1999 until

August of 2005. (R. 67, Pet. App. 27A.) The

Division of Physical Services’ procedure was that

employees were to turn in leave requests saying

they were sick or needed to take leave of their

duties for some other personal reason. (T. 416.)

Employees could turn in requests for leave on the

same day they were taking leave. (T. 416.) Dinora,

Medvesek and Boyce regularly took unauthorized

leaves from work without submitting leave

requests. (T. 249.)

The three janitors took steps to conceal their

unauthorized absences so that they did not use up

the time the State had allotted them for approved

leave. When one of the three was at work and was

asked by someone where another janitor was, the

janitor at work would telephone the absent janitor

so that he could come into work or call the person

who had inquired about him. (T. 251.) When

Medvesek or Boyce left work before their shift was

over, whichever of the two stayed later would leave

a note addressed to their supervisor in the Herndon

Building. (T. 260.) The note said that Dinora had

gone to the Court of Claims building and their

supervisor should page him. (T. 260.) The note

ensured that if a supervisor checked on the

janitors, the supervisor would page Dinora who

could then arrange for the janitors to go to the

8

Court of Claims building or otherwise cover their

absence.

Beginning in approximately January 2004 and

continuing until the end of the scheme, Medvesek

and Boyce alternated days on which one left early

without filling out leave requests. (T. 470.) On

most days, one of them left work before 5:00 p.m.,

and the other usually left before 10:00 p.m.

(T. 470.) During this period, Dinora was almost

never at work. (T. 417.)

Beginning in the Spring of 2005 and continuing

until August, 2005, Medvesek and Boyce filled out

leave slips before one left for the night. (T. 261-62.)

The leave slip would correctly reflect that the

janitor who was absent had taken leave. (T. 261-

62.) If no one checked on the janitors that night,

the janitor who stayed at work would tear up the

other’s leave slip. (T. 262.) The janitors also

created two sets of attendance logs, one correctly

stating that the other two had not worked their full

shift. (T. 424-25.) If no one checked on the

janitors, the janitors would submit a_ false

attendance log reporting that each janitor had

worked all the hours of his shift. (T. 274-75.)

The janitors submitted the false attendance

logs to the division attendance clerk. An

attendance clerk for each of the divisions of the

Division of Physical Services reviewed the atten-

dance logs. (T. 529-31.) If the attendance clerk did

not notify the payroll manager that an employee

9

was missing work and shou!ld be docked pay, the

employee would receive his full salary. (T. 531.)

D. Turner’s Role in the Janitors’ Scheme

The Government charged that Turner hindered

the supervisors of Dinora, Medvesek and Boyce

from investigating the amount of time the janitors

were spending at work and disciplining the three.

(R. 67, Pet. App. 34A-35A.) In April of 1999,

Turner relieved one of the janitors’ supervisors of

his supervisory duties over Dinora, Medvesek and

Boyce. (T. 173.) This occurred after the supervisor

had reported that the janitors were not working as

they should have been. (T. 172.) On several other

occasions, Turner told supervisors to leave the

janitors alone and only check on the Herndon

Building if there were complaints about it not being

clean. (T. 26, 32-33, 46.) Turner disclosed to

Dinora the existence of an investigation by the

Secretary of State Inspector General’s office into

the janitors’ absences from work. (T. 335.) Turner

also told Dinora on several occasions that Dinora

had nothing to worry about and that Turner “had

his back.” (T. 268, Ex. 4.)

E. Turner Received No Benefit for Any

Participation in the Janitors’ Scheme

The Government charged that in exchange for

hindering the investigation, Dinora directed the

Springfield Public Works Department to give

Turner preferential treatment when Turner

requested that the Department pick up trash or

10

other items in Turner’s neighborhood. (R. 67, Pet.

App. 29A.) However, the evidence at trial was that

Turner, as a result of his and his wife’s positions in

the community, received preferential treatment

from the Department regardless of Turner’s rela-

tionship with Dinora. (T. 373, 402.) On appeal, the

government conceded that Turner received no

private gain from the janitors’ schheme. See Turner,

555 F.3d at 655, Pet. App. 15A-16A.

F. The Government’s Charges Against

Turner and the Use of Wire Commun-

ications

The Government charged Turner with four

counts of wire fraud under 18 U.S.C. §§ 1343 and

1346. To convict under either statute, proof of

three elements is required: (1) the defendant par-

ticipated in a scheme to defraud; (2) the defendant

intended to defraud; and (3) a use of an interstate

wire in furtherance of the fraudulent scheme.

United States v. Radziszewski, 474 F.3d 480, 484-

85 (7th Cir. 2007). The government advanced two

theories against Turner under the wire fraud

statutes. First, the government alleged that

Turner aided and abetted the janitors’ scheme.

Second, the government alleged that Turner

deprived the State of Illinois of his honest services.

The basis for charging Turner under the wire

fraud statutes was that Dinora and Boyce received

their paychecks from the State of Illinois by direct

deposit. (R. 67, Pet. App. 42A.) Neither Medvesek

nor Turner were paid by direct deposit. (T. 523;

11

R. 67, Pet. App. 42A.) Neither the hiring of the

janitors nor the subscription by the janitors to the

state’s direct deposit service was temporally linked

by the Government to the scheme. The evidence at

trial was that at least one of the janitors received

his paycheck by direct deposit before the charged

scheme began and that the janitors worked for the

Department of Physical Services for over a decade

before the scheme began. (T. 218, 219, 412, 466.)

Hl. Appellate Jurisdiction

This case and De endant- A

Turner were before the United States Distri

Court for the Central District of Illinois pursuant [

18 U.S.C. § 3231 on charges of violation of

18 U.S.C. §§ 13843, 1346 and 2, wire fraud, and

18 U.S.C. § 1001, making false statements. Appel-

late jurisdiction was conferred pursuant’ to

28 U.S.C. § 1291 because the judgment of the Dis-

trict Court was final. Sentence was imposed on

January 4, 2007 and Judgment of Conviction was

entered on January 9, 2007. Notice of Appeal was

entered on January 9, 2007.

Ill. Court of Appeals Decision

The court of appeals affirmed Turner’s convic-

tion under 18 U.S.C. §§ 1343 and 1001. Turner,

551 F.3d at 668-69, Pet. App. 24A. The court held

that “[t]he janitors’ inflated wages — full-time pay

for part-time work — were at the heart of this

money or property fraud, and two of the three were

12

paid by direct deposit.” Jd. at 667, Pet. App. 21A.

Thus, the court held that the direct deposits were

in furtherance of the scheme because they “were

the main object of the fraudulent scheme, the final

step in the completion of the plot.” Jd.

As to the deprivation of honest services charge,

the court cited its recent holding in United States uv.

Sorich, 523 F.3d 702, 707-08 (7th Cir. 2008) in

finding that the lack of evidence of private gain to

Turner was not fatal to the 18 U.S.C. § 1346

charge. See Turner, 551 F.3d at 665, Pet. App.

16A-17A. The court did not directly consider

whether the payment of the janitors by direct

deposit was enough to meet the furtherance

requirement of the honest services charge under 18

U.S.C. § 1346, although the decision suggests that

it was not. See id. at 667-68, Pet. App. 22A. How-

ever, the court found the honest services charge

unnecessary. The court held that the evidence was

sufficient to convict Turner “for aiding and abetting

conventional money or property fraud” and

affirmed his conviction on that basis. Id. at 666,

Pet. App. 18A.

REASONS FOR GRANTING THE WRIT

The Court should grant the writ to answer

important questions regarding the scope of

18 U.S.C. § 1343 and the appropriate test for courts

to apply in determining whether the use of the

wires actually is in furtherance of the charged

scheme. The application of the federal wire fraud

statutes to the conduct at issue here unnecessarily

13

and uncontrollably expands the reach of 18 U.S.C.

§ 1343. The court of appeals reasoned that the

federal wire fraud statutes applied because the

janitors’ salaries were property, the purpose of the

janitors’ scheme was to work less and get paid and

therefore the direct deposits were in furtherance of

the scheme. Turner, 551 F.3d at 667, Pet. App.

21A. Under that reasoning, any shirking of a job

responsibility would be wire fraud if the shirking

employee were paid by direct deposit.

The wire fraud statute requires that wire

communications be employed “for the purpose of

executing [the charged] scheme or artifice.”

18 U.S.C. § 1843. This Court’s precedent recog-

nizes that not all mailings or wire transmissions

associated with a charged scheme are sufficiently

“for the purpose of” or “in furtherance of’ the

scheme to support a charge. See Kann v. United

States, 323 U.S. 88, 95, 65 S. Ct. 148, 151, 89 L. Ed.

88 (1944). In Kann, the Court held that the

mailing of fraudulently cashed checks between two

banks was not in furtherance of the charged

scheme because the fraud was complete when

defendants obtained cash from the first bank. Id.

The Kann Court held that “[t]he federal mail fraud

statute does not purport to reach all frauds, but

only those limited instances in which the use of the

mails is part of the execution of the fraud, leaving

all other cases to be dealt with by appropriate state

law.” Id.

Following Kann, the Court held in United

States v. Maze and Parr v. United States, that

14

. subsequent mailings of invoices of unauthorized

credit card charges did not meet the furtherance

element of mail fraud. United States v. Maze, 414

U.S. 395, 402, 94S. Ct. 645, 649, 38 L. Ed. 2d 603

(1974); Parr v. United States, 363 U.S. 370, 393, 80

S. Ct. 1171, 1184, 4 L. Ed. 2d 1277 (1960). In both

cases, the Court held that the furtherance element

was not met because the scheme was complete

when the defendants received the goods and

services from their fraudulent use of the credit

cards. Maze, 414 U.S. at 402, 94 S. Ct. at 649;

Parr, 363 U.S. at 393, 80 S. Ct. at 1184. In Maze,

the Court noted that “Congress could have drafted

the mail fraud statute so as to require only that the

mails be in fact used as a result of the fraudulent

scheme. But it did not do this...” Maze, 414 U.S.

at 405, 94S. Ct. at 651.

In Parr, the Court also considered a second

fraudulent scheme relating to the misappropriation

of tax revenue. Parr, 363 U.S. at 390, 80S. Ct. at

1183. The Government charged that scheme as

mail fraud because tax statements, checks and

receipts were mailed. Jd. The Court held that the

furtherance element was not met because the mail-

ings were “made under the imperative command of

duty imposed by state law.” Id. at 391, 80S. Ct. at

1184.

Following these cases, the Seventh Circuit, in

United States v. Kwiat, 817 F.2d 440, 443 (7th Cir.

1987), overturned the convictions of two co-

schemers under 18 U.S.C. § 1341 because the

15

mailings were not sufficiently connected to the

charged scheme. See Kwiat at 443.

The mail fraud convictions in Kwiat were based

on a scheme by bank directors to defraud the

bank’s depositors and stockholders of the directors’

honest services. See id. The scheme involved

recklessly approving loans on overvalued condo-

miniums resulting in a loss of $600,000.00 to the

bank, while the co-schemers received $15,000.00 in

commissions for each condominium unit financed

by the bank. Id. at 442. The mailings were of

mortgage instruments. Id. at 443. After lending

the money, the bank had each mortgage recorded.

See id. Then, the recorder of deeds mailed the

mortgage instrument back to the bank. 7d.

In determining that the mailings of the

mortgage documents did not further the scheme,

the Kwiat court considered that “honest services

would have produced the same sort of mailings.”

Id. at 443-44. The court also considered that

applying the mail fraud statute in Kwiat would

unnecessarily broaden the mail fraud statute. /d.

at 444. The court held:

If this “scheme” in conjunction with this

sort of mailing is mail fraud, then any

corporate officer’s breach of fiduciary duties

is mail fraud, for every corporation uses the

mails in some way or another .. . Unless all

flouting of corporate duties is mail fraud,

this scheme is not criminal under § 1341.

Id.

In Turner, the court of appeals distinguished its

holding in Kwiat on two grounds. Turner, 551 at

667, Pet. App. 20A-21A. First, the court noted that

Kwiat was submitted to the jury only as an honest

services fraud case. Jd. Second, the court concluded

that the mortgage mailings at issue in Kwiat were

not as directly related to the scheme as the janitors’

paychecks were here. Id.

The court’s reasoning in distinguishing Kwiat

from this case is problematic because it expands

wire fraud jurisdiction to common _ workplace

misconduct. Given the court’s conclusion that the

failure to fully perform job duties can be prosecuted

both as honest services fraud and property fraud,

the court’s distinction between 18 U.S.C. § 1343

and 18 U.S.C. § 1346 makes little difference. Even

more problematic is the court’s reasoning that

paycheck deposits were the main object of the

janitors’ scheme. Because almost everyone works

for pay, this logic creates a basis to charge almost

any failure to perform job duties as wire fraud.

The standard applied to the furtherance

requirement seemingly changed with this Court’s

holding in Schmuck. Distinguishing, but not over-

ruling, the Kann-Parr-Maze line of cases, the Court

held that mailings that are only incidental or

tangential to the underlying fraud can support a

mail fraud prosecution, even if the mailings them-

selves are “innocent.” See Schmuck 489 U.S. at

711, 109 S. Ct. 1443.

17

The mailings at issue in Schmuck were title

applications mailed by car dealers who bought cars

with fraudulent odometer readings from the

defendant. Jd. Citing Parr, the Schmuck Court held

that even though the title applications were

innocent mailings in that they did not contain any

false information, innocent wire communications

may bring conduct under the wire fraud statutes.

Id. at 489 U.S. at 714-15, 109 S. Ct. at 1450. The

Parr Court had found that innocent mailings can

meet the furtherance requirement only if they are a

“step in the plot.” Parr, 363 U.S. at 390, 80 S. Ct.

at 1183 (citations omitted).

In Schmuck, the defendant was a used car

dealer who bought cars, rolled back their odometers

and sold them to other dealers at a higher price.

Id. After Schmuck sold the cars, the dealers sold

them to innocent purchasers and mailed title appli-

cations to state motor vehicle agencies. /d. The

Court held that the mailings met the furtherance

requirement because Schmuck’s scheme depended

on continued good relationships with the dealers.

Id. at 711-12, 109 S. Ct. at 1449. Thus, the mailings

were “incidental to an essential part of the scheme”

because without the transfer of title, the dealers

would not have continued to purchase cars from

Schmuck. Zd.

The Schmuck Court distinguished the Court’s

previous holdings in the Kann-Parr-Maze line of

cases by characterizing the mailings in the three

earlier cases as “little more than _ post-fraud

accounting among the potential victims of various

18

schemes.” Id. at 714, 109S.Ct. at 1449. The

Schmuck Court further distinguished Parr by

noting that although both the title registration

mailings in Schmuck and tax mailings in Parr were

required by law, the Parr mailings would have

taken place “regardless of the defendant’s fraudu-

lent scheme,” as contrasted with Schmuck, where

the mailings were “derivative of Schmuck’s scheme

to sell ‘doctored’ cars and would not have occurred

but for that scheme.” Jd. at 713, n. 7, 109 S. Ct. at

1449.

Since the Court’s holding in Schmuck, circuit

courts have taken differing approaches to deter-

mining whether mailings or wire transmissions are

sufficiently connected to a charged scheme. In

United States v. Strong, 371 F.3d 225 (5th Cir.

2004), the Fifth Circuit analyzed whether the

mailings of fraudulently obtained certificates of

original titles of cars met the mailing requirement

of 18 U.S.C. § 1341. 371 F.3d at 230. At issue in

Strong was a scheme under which Strong and his

brother bid on used cars at auctions and obtained

immediate physical possession of the vehicles. The

brothers never honored their bids, but obtained

certified copies of original titles after presenting

fraudulent title applications. The brothers then

sold the vehicles with the certified copies of the

original titles to unsuspecting third parties. Id. at

226-27.

The scheme was charged under 18 U.S.C.

§ 1341 because the false title applications were

mailed from one department of transportation

19

branch to another. Jd. at 226-27. Strong argued

that the mailings were not used to execute the

scheme because “the mailings occurred after the

fraud was complete; once the [certified copy of

original title] was obtained, the subsequent mailing

. Was a mere formality and totally immaterial to

the success of the Strong’s fraudulent scheme.” 7d.

at 229.

The Fifth Circuit agreed. Based on Schmuck,

the court found that “[t]he question, then, is

whether the mailings themselves somehow con-

tributed to the successful continuation of the

scheme — and if so, whether they were so intended

by Strong.” Strong, 371 F.3d at 230 (citing

Schmuck, 389 U.S. at 711-12, 109 S. Ct. 1443).

The court of appeals’ decision here conflicts

with the analysis in Strong and creates further

questions regarding the furtherance requirement

under 18 U.S.C. § 1343. As in Strong, the fraud

here was complete once the janitors submitted their

false attendance sheets to their division, and the

fact that two janitors were paid by direct deposits

in no way contributed to the scheme. The Seventh

Circuit’s holding also conflicts with its earlier

holding in Kwiat and this Court’s precedent in

Schmuck because the direct deposits did not come

about because of the scheme. Moreover, concluding

that a scheme to avoid job responsibilities is

furthered by the direct deposit of a paycheck

stretches the reach of 18 U.S.C. § 1343 and makes

the federal government the enforcer of workplace

conduct.

20

CONCLUSION

For the foregoing reasons, the Court should

grant writ of certiorari to clarify the standard for

determining whether a direct deposit is sufficiently

related to a charged scheme.

Respectfully s tted,

x

ychaei J. Gonring

Counsel of Record

QUARLES & B LLP

411 EK. Wisconsin Ave.

Milwaukee, WI 53202-4497

(414) 277-5000

Attorney for Petitioner

Dated: Aprilo’2, 2009.

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 07-1062

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

CECIL TURNER,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 06 CR 30012 — Joe Billy McDade, Judze.

ARGUED DECEMBER 3, 2007 — DECIDED

DECEMBER 30, 2008

Before BAUER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. A jury convicted Cecil

Turner of two counts of making false statements

to the FBI and four counts of wire fraud for his

part in a fraudulent scheme by which three

janitors employed by the State of Illinois worked

only a small fraction of their required 40 hours

per week but falsified their attendance logs and

1A

collected their full salaries. On appeal, Turner

contends that his statements to the FBI were not

material because the FBI already knew about his

involvement in the scheme and therefore could not

have been misled by what he said. We disagree. A

false statement need not actually influence the

agents to whom it is made in order to satisfy the

materiality requirement for this offense; it need

only have the _ possibility of influencing a

reasonable agent under normal circumstances.

Turner’s statements to the FBI — denying that he

provided supervisory cover for the janitors’

fraudulent scheme — satisfied this standard.

Turner also maintains the evidence was

insufficient to convict him of wire fraud. His

argument is twofold: He challenges’ the

sufficiency of the evidence on the government’s

“honest services” fraud theory and the sufficiency

of the use of the wires. As to the former, the case

was charged and submitted to the jury as a

traditional money or property fraud and as an

honest services fraud. The evidence established

that Turner aided and abetted a straightforward

money or property fraud — Turner assisted the

janitors’ fraudulent scheme to collect thousands of

dollars in wages for hours they did not work — so

the verdict may be sustained regardless of any

factual insufficiency on the alternative honest

services fraud theory. As for the use of the wires,

two of the janitors were paid through direct

deposit; under the circumstances of this case, this

use of the wires was sufficient to satisfy the wire-

fraud statute. The janitors’ receipt of falsely

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inflated wages was the final step — indeed, it was

the whole point — of the fraudulent scheme.

I. Background

Turner was the Director of the Division of

Physical Services for the Illinois Secretary of

State’s office from 1999 to 2005. He supervised

over 300 employees who were responsible for

cleaning and maintaining various state- owned

buildings in Springfield, [llinois. Three of those

employees were night janitors Dana Dinora,

Steven Boyce, and David Medvesek. Turner

promoted Dinora to lead night janitor shortly

after being appointed Director in 1999, and the

three janitors comprised a _ cleaning crew

responsible for the Herndon Building, the Court of

Claims, and the Lincoln Towers. Dinora also

worked as an Assistant Superintendent for the

City of Springfield Public Works Department

where he handled street cleaning and garbage

pick-up throughout the city.

Dinora and his crew were required to report to

work by 3 p.m. Monday through Friday and stay

until 11 p.m. As with any other employee, each

was required to submit a leave slip and obtain

approval if he was going to be absent during

normal work hours. The janitors were supervised

by building managers, who in turn reported to the

division chief, who was overseen by the deputy

director, who reported directly to Turner.

Led by Dinora, the three night janitors

devised a scheme to take massive amounts of

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unauthorized leave without being detected by

their supervisors. At its peak the scheme allowed

Dinora to collect a full salary while working less

than 30 minutes each day and the others to

receive full pay while cutting their work hours in

half. Sometimes one janitor would remain at work

while the other two were absent; the “on duty”

janitor would tip off the absent ones if questioned

by a supervisor about the whereabouts of the

other members of the crew. The absent janitors

would then come in to work, call the supervisor

who made the inquiry, or submit an appropriate

leave slip. Another feature of the scheme involved

leaving a note in one building falsely representing

that the absent janitor was working in another

building. The three janitors also kept two sets of

attendance logs. The first accurately recorded

occasions when one or more of the janitors did not

work a full shift and submitted a proper leave

request. If no one checked their work that night,

however, the “on-duty” janitor would replace the

first, accurate attendance log with a second log

falsely recording that all three had been working

the entire night.

The janitors’ scheme could not have succeeded

without Turner’s help. Prompted by requests from

Dinora, Turner repeatedly intervened when the

janitors’ immediate supervisors began to watch

the three more closely. In 1999 Building Manager

Randy Lewis forced Dinora to prove that he was

actually sick before taking more sick days. Dinora

complained to Turner, who reprimanded Lewis

and told him to leave Dinora and his crew alone.

Two other building managers received similar

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warnings after attempting to more closely

supervise Dinora. Building Manager James

Carter was admonished by Turner to “stay the

hell away from” Dinora and his crew after Dinora

told Turner that Carter was watching the

Herndon Building. Turner also instructed

Building Manager Harry Fanning to leave

Dinora’s men alone and to stop checking their

work.

Turner’s efforts to deflect attention from the

night janitors’ fraud were successful from 1999

until 2003, when Division Chief Dodie Stannard

became involved. After receiving numerous

complaints about the unsanitary conditions in the

buildings that Dinora’s crew was assigned to

clean, Stannard began to investigate. On a

number of occasions, she visited the Herndon

Building at night and found no one there cleaning.

Just to be sure the men weren’t working in

another of their assigned buildings, she checked

the Court of Claims, but it, too, was deserted. She

made a written report to Turner about her

investigation and recommended involving the

Inspector General. Turner responded harshly,

claiming that Stannard had “stabbed him in the

back” by putting her concerns in writing instead

of passing along the information verbally. He also

told her that reporting Dinora’s crew to the

Inspector General’s office was unnecessary as the

matter rested with him alone.

The fraud thus went undetected through mid-

2005, when Stannard defied Turner and contacted

the Inspector General’s office. In August 2005

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Turner’s wife, Doris — a member of the County

Board — called Dinora to warn him that Stannard

had tipped off the Inspector General. Dinora

confirmed this with Turner, who told Dinora to be

careful and make sure his crew showed up for

work. A week later, inspectors advised Turner of

their investigation and told him not to disclose it

to anyone. Nevertheless, Turner kept Dinora

informed about the Inspector General’s inquiry

and advised him to watch his crew closely. In

September the FBI opened an investigation and

Dinora began cooperating. Thereafter Dinora

recorded many of his conversations with Turner.

As a result of Dinora’s cooperation, Turner

became the focus of the investigation. In mid-

October FBI agents questioned Turner about the

janitors’ scheme. He told them that he never

“looked the other way” for Dinora or his crew and

that he never reprimanded any of their

supervisors for checking on their activities at the

Herndon Building. He also claimed that he only

learned about the scheme in September 2005 and

that he complied with the Inspector General’s

request to tell no one about the investigation. The

FBI interviewed him again in November, and

Turner stuck to his story. When asked if he told

his wife to call Dinora, Turner denied it. The

agents then played a tape of Doris Turner

warning Dinora about the Inspector General’s

investigation and explaining that she was calling

on behalf of her husband. Turner continued to

maintain theé re did not ask his wife to make the

call.

6A

Turner was charged with four counts of wire

fraud in violation of 18 U.S.C. §§ 1343 and 1346

and two counts of making false statements in

violation of 18 U.S.C. § 1001.1 The government’s

wire-fraud theory was that Turner either aided

and abetted the night janitors’ fraudulent scheme

or deprived the State of Illinois of his honest

services.

At the close of the government’s case, Turner

moved for judgment of acquittal on the wire-fraud

charges under Rule 29a) of the Federal Rules of

Criminal Procedure, arguing insufficiency of the

evidence. The district court denied this motion.

The court also denied Turner’s later motion under

Rule 29(c) for judgment of acquittal after the jury

returned a verdict of guilty on all charges. Turner

appeals, reiterating his challenges to _ the

sufficiency of the evidence in a number of

respects.

Il. Analysis

A. False Statements to the FBI

Turner contends the evidence was insufficient

to convict him of making false statements in

violation of 18 U.S.C. § 1001.2 On these counts the

1 Dinora, Boyce, and Medvesek were charged

with four counts of wire fraud and all three pleaded

guilty.

2 The statute provides: “Except as otherwise

provided in this section, whoever, in any matter within

TA

government was required to prove that Turner’s

statements were false; material; knowingly and

willfully made; and concerned a matter within the

jurisdiction of a federal department or agency —

here, the FBI. United States v. Ringer, 300 F.3d

788, 791 (7th Cir. 2002). Turner claims there was

not enough evidence to prove that the FBI

investigation was within its jurisdiction or that

his false statements were material.

On a sufficiency-of-the-evidence challenge, we

view the evidence in the light most favorable to

the verdict and will overturn the conviction only if

there is no evidence upon which a rational juror

could have found the defendant guilty. United

States v. James, 464 F.3d 699, 705 (7th Cir. 2006).

Adding to this already steep burden is the fact

that Turner did not move for acquittal on the

charges of making false statements; his Rule 29

motions were directed at the wire-fraud counts.

FED. R. CRIM. P. 29(c). Accordingly, he must

establish a “manifest miscarriage of justice.”

United States v. Banks, 405 F.3d 559, 569 (7th

Cir. 2005). “Manifest miscarriage of justice is

perhaps the most demanding standard of

appellate review. We will reverse ‘only if the

the jurisdiction of the executive, legislative, or judicial

branch of the Government of the United States,

knowingly and willfully ... (2) makes any materially

false, fictitious, or fraudulent statement or

representation” shall be subject to a fine and

imprisonment of up to five years. 18 U.S.C.

§ 1001(a)(2).

8A

record is devoid of evidence pointing to guilt, or if

the evidence on a key element of the offense was

so tenuous that a conviction would be shocking.”

United States v. Taylor, 226 F.3d 593, 597-98 (7th

Cir. 2000) (quoting United States v. McKinney,

143 F.3d 325, 330 (7th Cir. 1998) (internal

quotation marks omitted)).

Turner’s first argument -— that’ the

investigation was within the jurisdiction of the

State of Illinois, not the FBI — may be dispatched

quickly. In United States v. Rodgers, une Supreme

Court cautioned that the term “jurisdiction” in

§ 1001 is not given a “narrow or technical

meaning.” 466 U.S. 475, 480 (1984). Rather, “the

phrase ‘within the _ jurisdiction’ merely

differentiates the official, authorized functions of

an agency or department from matters peripheral

to the business of that body.” Id. at 479. The Court

concluded in Rodgers that “[t]here is no doubt”

that the FBI “is authorized ‘to detect and

prosecute crimes against the United States,”

including, in that case, kidnaping. Id. at 481

(quoting 28 U.S.C. § 533(1)).

Here, Turner’s statements to the FBI were

made during the course of a criminal investigation

into possible federal wire-fraud offenses, which

falls squarely within the official, authorized

functions of the FBI. See United States v. F.d.

Vollmer & Co., Inc., 1 F.3d 1511, 1518 (7th Cir.

1993) (finding that the question of jurisdiction is

one of law “and a department or agency has

jurisdiction only when it has the power to exercise

authority in a particular situation”). That the

9A

investigation originated with the State of Illinois

is irrelevant.

Turner also argues that the statements he

made to the special agents were not material

because the agents already knew the answers to

the questions before they asked him. The FBI was

in possession of tape-recorded conversations

between Dinora and both Cecil and Doris Turner

at the time agents interviewed Turner. During the

course of one of the recorded conversations, Doris,

on behalf of her husband, warned Dinora about

the Inspector General’s investigation and told him

to be careful about missing work. During a call a

few days later, Turner reminded Dinora about the

Inspector General’s involvement and told him to

make sure his crew filled out their leave slips.

Turner argues that his statements cannot have

been material to the FBI’s investigation because

the agents had these and other conversations on

tape and therefore could not have been misled.

To be material for purposes of § 1001, a

statement “must have ‘a natural tendency to

influence, or [be] capable of influencing, the

decision of the decisionmaking body to which it

was addressed.” United States v. Gaudin, 515

U.S. 506, 509 (1995) (alteration in original)

(quoting Kungys v. United States, 485 U.S. 759,

770 (1988)); see also Kungys, 485 U.S. at 771 (The

“central object” of the materiality inquiry is

“whether the misrepresentation or concealment

was predictably capable of affecting, i.e., had a

natural tendency to affect, the official decision.”).

We have held, however, that “[u]nder section 1001

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a false statement may be material even though

the agency did not rely on it and was not

influenced by it.” United States v. Dick, 744 F.2d

546, 553 (7th Cir. 1984).

Similarly, we held in United States v. Ranum,

that “it is not necessary for an allegedly false

statement to have any ill effect at all, as long as it

is capable of having such an effect.” 96 F.3d 1020,

1028 n.12 (7th Cir. 1996). Other circuits are in

accord. See, e.g., United States v. White, 270 F.3d

356, 365 (6th Cir. 2001) (“If the false statements

are received by an agency, they may be material

even if the receiving agent or agency knows that

they are false.”); United States v. Sarihifard, 155

F.3d 301, 306 (4th Cir. 1998) (“It is irrelevant

whether the false statement actually influenced or

affected the decision-making process of the agency

or fact finding body.”); United States v. Service

Deli, Inc., 151 F.8d 938, 941 (9th Cir. 1998)

(“[T]he test is the intrinsic capabilities of the false

statement itself, rather than the possibility of the

actual attainment of its end as measured by

collateral circumstances.”) (internal quotation

marks & citation omitted); United States v. Edgar,

82 F.3d 499, 510 (1st Cir. 1996) (“[T]he standard

is not whether there was actual influence, but

whether it would have a tendency to influence.”);

cf. United States v. Baker, 200 F.3d 558, 561 (8th

Cir. 2000) (“Materiality does not require proof

that the government actually relied on the

statement.”); United States v. Neder, 197 F.3d

1122, 1128 (llth Cir. 1999) (“[A] false statement

can be material even if the decision maker did not

actually rely on the statement.”).

11A

In United States v. McBane, 433 F.3d 344 (3d

Cir. 2005), the Third Circuit rejected a materiality

challenge quite similar to the one Turner

advances here. The defendant was a local sheriff

who confiscated a rifle from a suspect and later

sold it to an FBI informant. When questioned by

the FBI about the rifle, the defendant lied and

told the agent that it remained in the possession

of the sheriffs department at all times. Id. at 347.

The Third Circuit posed the question presented as

follows: “whether the test for ‘materiality’

necessarily requires that a false statement be

capable of influencing an actual, particular

decision of the agency at issue, or whether the test

requires only that a statement be of a type that

would naturally tend to influence a reasonable

decisionmaking agency in the abstract.” Jd. at

350. Citing the materiality standard we have

quoted above, the court concluded that a

statement’s “natural tendency to _ influence”

suggests not that it must actually influence the

agency but instead puts the focus more broadly on

the “qualities of the statement in question that

transcend the immediate circumstances in which

it is offered and inhere in the statement itself.” Id.

at 351. The court held that the defendant sheriffs

statements to the FBI were material — even

though the FBI already had the information from

its informant — _ because’ the _ sheriffs

“misrepresentations, under normal circumstances,

could cause FBI agents to re-direct their

investigation to another suspect, question their

informant differently or more fully, or perhaps

close the investigation altogether.” Jd. at 352.

12A

Here, as in McBane, Turner’s statements to

the FBI probably had very little actual influence

on the agents because they were already in

possession of incriminating recorded

conversations between Turner, his wife, and

Dinora. The agents were not likely swayed by

Turner’s false statements because he was on tape

saying precisely the opposite to Dinora. But the

point of his telling the agents that he did not learn

of the trouble in the Herndon Building in

September 2005 was to cast suspicion away from

him, which in the ordinary course would have an

intrinsic capability — a “natural tendency” — to

influence an FBI investigation. The same is true

of Turner’s claim that he had not reprimanded

any of his employees for monitoring Dinora’s crew,

as well as his later denial that he asked his wife

to call Dinora on his behalf. Turner’s statements

were aimed at misdirecting the agents, and this is

enough to satisfy the materiality requirement of

§ 1001.

B. Wire Fraud

The wire-fraud statute, 18 U.S.C. § 1348,

makes it a crime to use the interstate wires in

“any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent

pretenses, representations, or promises.’ To

3 More fully, the wire-fraud statute, 18 U.S.C. § 1343

(2002), read: “Whoever, having devised or intending to

devise any scheme or artifice to defraud, or for

obtaining money or property by means of false or

fraudulent pretenses, representations, or promises,

13A

convict a defendant of wire fraud, the government

must prove three elements: (1) the defendant

participated in a scheme to defraud; (2) the

defendant intended to defraud; and (3) a use of an

interstate wire in furtherance of the fraudulent

scheme. United States v. Radziszewski, 474 F.3d

480, 484-85 (7th Cir. 2007).

The government advanced two theories on the

four counts of wire fraud against Turner: (1) that

he aided and abetted the janitors’ fraudulent

scheme to obtain their full salaries while working

only a fraction of their required hours; and

(2) that he deprived the State of D[linois of its

right to his honest services as Director of Physical

Services. The latter theory derives from 18 U.S.C.

§ 1346, which provides that the term “scheme or

artifice to defraud” in the mail- and wire-fraud

statutes “includes a scheme or artifice to deprive

another of the intangible right of honest services.”

Turner argues that the evidence was insufficient

to establish an honest services fraud and that the

use of the wires was not “in furtherance of” the

fraudulent scheme.

transmits or causes to be transmitted by means of

wire, radio, or television communication in interstate

or foreign commerce, any writings, signs, signals,

pictures, or sounds for the purpose of executing such

scheme or artifice, shall be fined under this title or

imprisoned not more than 20 years, or both.”

14A

1. Honest Services Fraud

Turner argues that the evidence of an honest

services fraud was insufficient because he

received no private gain as a result of his

participation in the janitors’ fraudulent scheme.

The “private gain” requirement is this circuit’s

gloss on the “honest services” variant of mail and

wire fraud and is meant to limit the potential for

overreach in prosecutions premised on § 1346. See

United States v. Sorich, 523 F.3d 702, 707-08 (7th

Cir. 2008); United States v. Bloom, 149 F.3d 649,

655 (7th Cir 1998). “Section 1346 was added to the

Criminal Code in 1988 to equate a deprivation of

honest services with deprivation of money or

property” under the mail- and wire-fraud statutes.

United States v. Orsburn, 525 F.3d 543, 546 (7th

Cir. 2008). But “given the amorphous and open-

ended nature of § 1346 ..., courts have felt the

need to find limiting principles, and ours has been

that the ‘[mJisuse of office (more broadly, misuse

of position) for private gain is the line that

separates run-of-the-mill violations of state-law

fiduciary duty .. . from federal crime.” Sorich, 523

F.3d at 707 (quoting Bloom, 149 F.3d at 655)

(alteration in original) (citation omitted).

There is no evidence that Turner received

kickbacks or otherwise personally profited from

the janitors’ inflated salaries. There was evidence

that Dinora — in his “day job” capacity as

Assistant Superintendent in the Springfield

Public Works Department — routinely arranged

for expedited refuse removal at Turner’s home.

But the government did not suggest that this was

15A

the “private gain” for purposes of its honest

services fraud theory against Turner. Rather, in

closing argument the prosecutor maintained that

the private gain was the janitors’ unearned

salaries, not the preferential garbage collection. In

its appellate brief, the government conceded that

on this point its case had been flawed; it

understood the private-gain requirement to mean

that the defendant must have misused his office

for his own private gain. But in Sorich — issued

after this case was briefed and argued — we

clarified that “[bly ‘private gain’ we simply mean

illegitimate gain, which usually will go to the

defendant, but need not.” 523 F.3d at 709.

We noted in Sorich that “in most honest

services cases, the defendant violates a fiduciary

duty in return for cash — kickbacks, bribes, or

other payments,” but explained that “[nJot all

{honest services] fraud cases follow this precise

pattern.” Jd. at 707. The defendants in Sorich had

misused their public offices for the private gain of

third parties — campaign workers who were given

civil-service jobs. This was sufficient, we said,

because “the true purpose of the private gain

requirement — and one that does not depend on

who gets the spoils — is to prevent the conviction

of individuals who have breached a fiduciary duty

to an employer or the public, but have not done so

for illegitimate gain.” Jd. at 710. We observed that

although “someone up to no good will [usually] be

out to enrich himself, not others ..., ‘lal

participant in a scheme to defraud is guilty even if

he is an altruist and all the benefits of the fraud

accrue to other participants.” Jd. at 709 (quoting

16A

United States v. Spano, 421 F.3d 599, 603 (7th

Cir. 2005) (alteration in original)). Because the

defendants in Sorich had “created an illegitimate,

shadow hiring scheme based on patronage and

cronyism by filling out sham interview forms,

falsely certifying that politics had not entered into

their hiring, and covering up their malfeasance,”

the “hallmarks” of an honest services fraud were

present. Id. at 711.

Sorich thus makes the government’s

concession in this case unnecessary. But Turner’s

challenge to the sufficiency of the evidence of

honest services fraud falls short for another

reason. The government argued that because the

evidence was sufficient to establish that Turner

aided and abetted a straightforward money or

property fraud, his wire-fraud convictions may be

affirmed despite any factual infirmity in its

honest services fraud case. We agree. It is well

established that when a case is submitted to a

jury on two correct theories of criminal liability, a

general verdict is valid and will not be set aside as

long as the evidence supporting one of the possible

bases for conviction is sufficient. Griffin v. United

States, 502 U.S. 46, 59-60 (1991); United States v.

Black, 530 F.3d 596, 602 (7th Cir. 2008). Although

reversal is generally required when on a general

verdict only one of two bases for the conviction is

legally sound, see Yates v. United States, 354 U.S.

298, 311-12 (1957), the same is not true when the

issue is factual, not legal, insufficiency. When

“two correct theories of illegality are presented in

the instructions and there is sufficient evidence to

convict only on one[,] the jury is assumed to have

17A

followed the instruction on the government’s

burden of proof and therefore to have rejected the

insufficiently supported theory.” Black, 530 F.3d

at 602.

Here, Turner claims there was insufficient

evidence of his own private gain to support a

conviction for honest services fraud. We have

explained that the private gain need not be his

own; the janitors’ private gain is sufficient to

support his conviction on an honest services fraud

theory. But the honest services alternative was

unnecessary to Turner’s conviction in any event.

The evidence was quite enough to convict him for

aiding and abetting a conventional money or

property fraud, and his conviction may be

affirmed on this basis. He does not argue

otherwise, except with respect to the “use of the

wires” element, to which we now turn.

2. The Use of a Wire

The mail- and wire-fraud statutes are not

intended to reach all frauds but only those in

which a mailing or use of an interstate wire is

part of the scheme. Schmuck v. United States, 489

U.S. 705, 710 (1989). The use of the mail or wire

need not be an indispensable part of the fraud to

satisfy the “in furtherance of” element of the

offense; it need only “be incident to an essential

part of the scheme ... or a step in [the] plot.” Jd.

at 710-11 (alteration in original) (internal

quotation marks & citation omitted). “In other

words, the success of the scheme must in some

measure depend on the mailing for wire

18A

transmission].”4 United States v. Seward, 272 F.3d

831, 836 (7th Cir. 2001). The defendant himself

need not personally cause the mailing or use of

the wire; it is enough that the use of mail or wire

“will follow in the ordinary course of business, or

where such use can reasonably be foreseen, even

though not actually intended.” Pereira v. United

States, 347 U.S. 1, 8-9 (1954) (“Where one does an

act with knowledge that the use of the mails will

follow in the ordinary course of business, or where

such use can reasonably be foreseen, even though

not actually intended, then he ‘causes’ the mails to

be used.”); United States v. Hickok, 77 F.3d 992,

1004 (7th Cir. 1996). The mailing or use of the

wires need not itself contain false or fraudulent

material; a “routine or innocent” mailing or use of

the wire can supply this element of the offense, as

long as the use of the mail or wire is part of the

execution of the scheme. Schmuck, 489 U.S. at

714-15; United States v. Brocksmith, 991 F.2d

1363, 1368 (7th Cir. 1993).

Here, the wire transmission was the direct

deposit of Dinora’s and Boyce’s inflated paychecks.

Turner argues that this use of the interstate wires

was a regular part of the janitors’ employment,

unrelated to and therefore not “in furtherance of”

their fraudulent scheme. For support he cites

United States v. Kwiat, 817 F.2d 440 (7th Cir.

4 Cases construing the mail-fraud statute are equally

applicable to cases involving violations of the wire-

fraud statute. United States v. Leahy, 464 F.3d 773,

786 (7th Cir. 2006).

19A

1987), but we think the case is distinguishable.

The fraudulent scheme in Kwiat involved risky

real-estate loans by bank directors who persuaded

investors to purchase condominiums in which the

directors had an interest. No credit checks on the

investors or appraisals of the property were

performed. When the loans eventually defaulted,

the bank lost more than $600,000. The directors

were charged with “honest services” mail fraud in

violation of $1341.5 The alleged mailings in

furtherance of the fraud occurred when the

recorder of deeds mailed each mortgage

instrument back to the bank after it had been

recorded. We held that these mailings were not

“in furtherance of” the fraudulent scheme because

they “did not make the fraud possible or facilitate

it.... The mailings are offshoots of the loans, but

honest services would have preduced the same

sort of mailings.” Jd. at 443-44.

Kwiat is not analogous here, not least because

it was submitted to the jury solely as an honest

services fraud case. As we have explained, in this

case the honest services theory was merely

duplicative; the evidence easily established a

5 The indictment followed our decisions in United

States v. George, 477 F.2d 508, 513 & n.6 (7th Cir.

1973), and United States v. Dick, 744 F2d 546, 550 ‘7th

Cir. 1984), which adopted the “intangible mghts”

theory of mail fraud. The Supreme Court eliminated

this theory in McNally v. United States, 483 U.S. 350,

360 (1987), and Congress restored it in 1988 with the

passage of § 1346.

20A

traditional money or property fraud, so whether

the direct deposits were sufficiently incident to

Turner’s violation of his duty of honest services is

beside the point. See Orsburn, 525 F.3d at 546

(noting that “[slection 1346 is a definitional

clause, not a separate crime”). The janitors’

inflated wages — full-time pay for part-time

work — were at the heart of this money or property

fraud, and two of the three were paid by direct

deposit. While the after-the-fact mortgage

mailings in Kwiat did not facilitate or perpetuate

the directors’ breach of their duty of honest

services, the direct paycheck deposits at issue

here were the main object of the fraudulent

scheme, the final step in the completion of the

plot.

In Sorich, we noted that “courts have found

that salaries fraudulently obtained” are “money or

property” for purposes of a traditional mail- or

wire-fraud offense. 523 F.3d at 713 (citing United

States v. Doherty, 867 F.2d 47, 56, 60 (1st Cir.

1989)). Extrapolating from this point, we held in

Sorich that the civil-service jobs wrongfully

awarded to campaign workers were “property”

within the meaning of the mail-fraud statute. Id.

If a salary fraudulently obtained is “money or

property” for purposes of establishing a

traditional mail or wire fraud, then the receipt of

that fraudulently obtained salary by means of

direct deposit completes the plot and is therefore

“in furtherance of” the fraudulent scheme.

Turner argues that if the direct deposit of a

paycheck can satisfy the use of the wires element

21A

of wire fraud, then every employee who commits

an act of malfeasance on the job and is paid by

direct deposit will be guilty of wire fraud, and the

reach of the statute will be unlimited. If the

conduct at issue involved an honest services fraud

alone — not a money or property fraud — we might

share this concern. That is, if a fiduciary breach

(or other act of employee dishonesty) plus a

paycheck directly deposited (or mailed, for that

matter) were enough for liability under § 1346’s

alternative definition of “scheme to defraud,” then

the federal mail- and wire-fraud statutes would

potentially reach a vast array of fiduciary and

employee misconduct otherwise governed only by

state law.

In contrast, here, as we have noted, the

evidence established not a deprivation of honest

services only but a theft by fraud of money or

property. The whole point of the janitors’ scheme

— the “money or property” object of their scheme to

defraud — was to obtain falsely inflated salaries.

Turner provided the supervisory cover for this

money-for-nothing scheme. That some of the

fraudulently obtained wages were paid by way of

direct deposit supplies the “use of the wires”

element necessary to make this a federal wire

fraud.

Our decisions in Brocksmith and Hickok

support this conclusion. The defendant in

Brocksmith was an insurance agent who used his

clients’ premium checks to pay for his personal

expenses. United States v. Brocksmith, 991 F.2d

1363 (7th Cir. 1993). He told his clients to mail

22A

their checks — endorsed to him and not the

insurance company — to his office. He delayed

purchasing their actual policies and instead

expropriated the funds for his own use or

purchased a policy for a previous customer. He

also mailed required medical forms to two

customers and sent them postcards setting up

meetings to buy more time to cover their

premiums. /d. at 1364-65. We held that the

mailing of the fraudulently obtained premium

checks was not only “incidental” to the defendant’s

scheme, but “it was his scheme.” Jd. at 1367. The

other mailings allayed customers’ suspicions and

covered up the defendant’s fraudulent activity.

“Use of the mails to lull victims into a false sense

of security, we have held, violates the mail fraud

statute, even if it occurs after the money has been

fraudulently obtained.” Id. at 1867-68 (citing

United States v. Chappell, 698 F.2d 308, 311 (7th

Cir. 1983), cert. denied, 461 U.S. 931 (1983)).

The defendant in Hickok submitted fraudulent

sales reports to a cellular phone company, and the

company mailed him commission checks based in

part on those reports. United States v. Hickok, ‘77

F.3d 992 (7th Cir. 1996). We held that this use of

the mails was “an essential part of Hickok’s

scheme to defraud” because “[i]n order to receive

commission money which he had not earned and

to which he was not entitled,” he had submitted

false sales reports to the cellular phone company,

which in turn sent him commission checks

through the mail. Jd. at 1004. “Obviously, the use

of the mails to send commission checks . .

followed in the ordinary course of business, or was

23A

at least reasonably foreseeable by Hickok.” Id.

(internal quotation marks omitted).

In both Brocksmith and Hickok, the “money or

property” proceeds of the defendants’ fraudulent

scheme were received through the mail; in

Brocksmith it was misappropriated insurance

premiums and in AHickok it was unearned

commissions. Similarly here, the “money or

property” proceeds of the janitors’ scheme — their

unearned salaries — were received via wire

transmission. That the direct deposits were a

routine part of their employment does not make

the use of the wires insufficient; even “routine or

innocent” mailings and wire transfers can form

the basis of a mail- or wire-fraud conviction if they

are part of the execution of the scheme. Schmuck,

489 U.S. at 714-15; Brocksmith, 991 F.2d at 1368.

Accordingly, for the foregoing reasons, we

AFFIRM Turner’s convictions for making false

statements in violation of § 1001 and for wire

fraud in violation of § 1343.

24A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

January 28, 2009

Before

WILLIAM J. BAUER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

DIANE 5S. SYKES, Circuit Judge

No. 07-1062

UNITED STATES OF AMERICA, Appeal from the

Plaintiff-Appellee, United States

District Court for

Vv. the Central District

of Tilinois

CECIL TURNER,

Defendant-Appellant. No.06CR 30012

Joe Billy McDade,

Judge

ORDER

On consideration of the petition for rehearing

and for rehearing en banc, no judge in active

service has requested a vote on the petition for

rehearing en banc and all of the judges on the

original panel have voted to deny rehearing. It is

25A

therefore ordered that the petition for rehearing

and for rehearing en banc is DENIED.

26A

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

UNITED STATES OF

AMERICA,

Plaintiff, Criminal No. 06-

30012

Violation: 18 U.S.C.

§§ 2, 1343, 13846 &

Vv.

)

)

)

)

)

)

)

DANA DINORA, )

)

)

)

)

)

DAVID MEDVESEK, 1001

STEVEN BOYCE, and

CECIL TURNER,

Defendants.

AMENDED INDICTMENT

THE GRAND JURY CHARGES:

COUNTS ONE THROUGH FOUR

Wire Fraud

18 U.S.C. §§ 1343, 1346 and 2

A. Introductory Allegations

Overview

1. The defendants Dana Dinora, David

Medvesek, Steven Boyce and Cecil Turner

fraudulently deprived the State of Illinois of its

27A

right to their honest services and defrauded it of

more than $150,000, in that Dinora, Medvesek and

Boyce falsely caused their employer to believe they

were at work for thousands of hours when in fact

they were not at work and Turner protected them

from being caught or disciplined for their

unauthorized absences.

The Defendants

2. Dana Dinora, David Medvesek and

Steven Boyce were employed full time as night

janitors for the Division of Physical Services of the

Illinois Secretary of State’s Office.

3. Cecil Turner was the Director of the

Division of Physical Services for the Illinois

Secretary of State.

4. Until March 31, 2004, Dinora also was

employed full time as a supervisor for the City of

Springfield Public Works Department. In that

position Dinora could properly direct Public

Works employees to perform various tasks

including collection of trash and other items that

blocked a through-way or otherwise created a

public hazard in the City of Springfield. After

Dinora ieft employment with the city he was still

able to influence Public Works employees to use

city equipment on city time to collect trash and

perform other tasks. At no time was it proper for

Dinora to direct city employees using city

equipment on city time to perform personal

favors, including trash collection, merely for the

convenience or benefit of individuals. The proper

28A

way for individual homeowners and others to

dispose of their trash was to hire and pay a

private entity to pick up and dispose of the trash.

5. Frequently during the period of the scheme,

Turner contacted Dinora and asked him to direct

City of Springfield Public Works Department

employees to perform special favors for him in the

form of work that the city employees were equipped

to perform but were not supposed to perform solely

for the benefit of individuals. The work that Turner

requested and that city employees performed using

city equipment on city time included, among other

things: the expedited removal of leaves, tree limbs and

other yard waste at or near Turners and others’

property; the removal and disposal of trash,

including an old dog house, a broken water heater, a

broken refrigerator, bags of trash following campaign

events and other trash from Turner’s property; and,

following a political campaign, the removal and

disposal of numerous campaign signs for a candidate

Turner supported, including a large number of such

signs that had been collected and returned to

Turner’s property by others.

The Defendant’s Responsibilities

6. As the Director of Physical Services for

the Illinois Secretary of State, Cecil Turner was

responsible for, among other duties, the

maintenance of certain State owned or occupied

buildings, including the Herndon Building and the

Court of Claims building in Springfield, [llinois.

Such responsibility included ensuring that the

supervisors of his co-defendants properly

29A

supervised them by making sure that they were at

work during their official duty hours, performed

their job responsibilities while at work and

properly used leave when they were not at work.

7. At least two levels of supervision existed

between Turner’s position and that of his co-

defendants, the janitors.

8. Dana Dinora, David Medvesek and

Steven Boyce were responsible each work day for

providing janitorial services at state office

buildings in Springfield, including the Herndon

Building and the Court of Claims building.

9. Turner wag not authorized to cause or

allow the State of Illinois to pay any of its

employees for duty hours they were not at work

unless the employees were on approved leave.

10. Shortly after Cecil Turner became the

Director of Physical Services for the [Illinois

Secretary of State, Turner promoted Dinora to the

lead janitor position over the night janitorial crew

at the buildings in which Dinora worked. As the

lead janitor, Dinora assigned the janitors in his

crew to the buildings where they would work and

determined what tasks they would perform there.

Official Duty Hours

11. Dinora’s, Medvesek’s and Boyce’s official

duty hours were from 3:00 p.m. until 11:00 p.m.

on Monday through Friday. For any period of time

they were not at work during those official duty

30A

hours (other than for state holidays and allowed

breaks, including a dinner break), they were

required to submit and have approved leave

requests.

12. According to rules of the Illinois

Secretary of State, Dinora, Medvesek and Boyce

were not entitled to receive pay from the State of

Illinois for duty hours they were not at work

unless they were on leave.

B. The Scheme

13. Beginning in or about April 1999 and

continuing until in or about the end of August

2005, at Springfield and elsewhere in the Central

District of Illinois, the defendants

DANA DINORA,

DAVID MEDVESEK,

STEVEN BOYCE and

CECIL TURNER

knowingly and with the intent to defraud, devised,

executed, and aided and abetted the execution of a

scheme and artifice to deprive the State of Illinois

of its intangible right to their honest services and

to defraud and obtain money from the State of

Illinois by means of false and fraudulent

pretenses, promises and representations, which

scheme and artifice is described below.

The Manner and Means of the Scheme

14. As part of the scheme, defendants Dana

Dinora, David Medvesek and Steven Boyce

31A

devised a system that enabled them to receive

their full salaries despite working only a fraction

of their official duty hours. As the scheme

progressed, the amount of hours for which they

were paid without working increased.

15. Beginning in approximately January

2004 and continuing until the end of the scheme,

defendant Dana Dinora (a) rarely arrived at work

at or near 3:00 p.m. as he was required to do,

(b) normally did not arrive at work until after

10:00 p.m., (c) typically spent less than 30

minutes at work each day, and (d) virtually never

worked his entire shift.

16. Beginning in approximately January

2004 and continuing until the end of the scheme,

defendants David Medvesek and Steven Boyce,

with the knowledge and approval of Dana Dinora,

adopted a system that enabled them each to work

minimal hours on alternating days and to leave

early every day without taking leave. Under the

system, one of them left work usually before 5:00

p.m., and the other left usually before 10:00 p.m.

They arranged in advance who worked the longer

period and who worked the shorter period and, in

general, alternated the long and short days

between them.

17. As a part of the scheme, defendants

Dinora, Medvesek and Boyce developed the

following ways to conceal their unauthorized

absences from work without taking leave:

32A

a. When a janitor who was at work was

asked by someone where another member of the

janitorial crew could be located, the janitor who

was at work would say that the other janitor was

working at another building. The janitor who was

at work would then telephone the absent janitor

so that he could come into work or cail the person

who had inquired about him.

b. When Medvesek or Boyce (whichever

one stayed at work later) left work for the night,

he would put a note in the janitors’ area at the

Herndon Building. The note falsely said that

Dinora had gone to the Court of Claims building.

When defendant Dinora arrived at work after

10:00 p.m. to close the Herndon Building, he

would remove the note.

c. Beginning in the Spring of 2005 and

continuing until August, 2005, Medvesek and

Boyce, with the knowledge and approval of

Dinora, created two sets of Daily Attendance

sheets concerning their work status. One Daily

Attendance sheet reported that each janitor had

worked all the hours of his shift. The other Daily

Attendance sheet reported that the janitor had

used leave for the unauthorized time that he was

absent during his work shift. If no one in a

position of authority noticed or questioned a

janitors absence from work, that janitor

submitted the Daily Attendance sheet that falsely

reported that he had worked all of his official duty

hours. If someone in a position of authority

noticed or questioned a janitor’s absence from

work when he was supposed to be working, the

33A

janitor would submit the Daily Attendance sheet

showing that he had taken leave.

d. When Dinora’s immediate

supervisors questioned the amount of time that

Dinora, Medvesek or Boyce were working, Dinora

notified Cecil Turner so that Turner was aware and

could prevent any potential disciplinary actions

from being taken against the janitors.

18. Beginning in April of 1999 and continuing

until the end of August 2005, Dinora, Medvesek

and Boyce submitted paperwork reflecting the

hours they falsely claimed to have worked,

knowing that the false paperwork was used by the

. Office of the Dlinois Secretary of State to determine

the amount of their wages. They also caused the

State of Illinois to provide salary payments to

them by means of wire transfers of funds to be

direct-deposited into their bank accounts. The wire

transfer of funds for Dinora and Boyce traveled

interstate.

Turner’s Aiding and Abetting the Execu-

tion of the Scheme

19. Knowing that Dana Dinora and the other

janitors on his crew were not working all the

hours for which they were being paid, Cecil

Turner aided and abetted his co-defendants’ scheme

by taking actions that hindered, impeded and

prevented the supervisors of Dinora, Medvesek

and Boyce from investigating the amount of time

they actually were at work and from taking

34A

disciplinary action against one or more of them for

failing to work their entire shifts.

Acts in Furtherance of Aiding and Abet-

ting the Scheme

20. Turner discouraged, hindered, impeded

and prevented the supervisors of Dinora,

Medvesek and Boyce from checking to see

whether they were at work when they were

supposed to be there and from complaining of

their unauthorized absences, as follows:

a. In approximately April 1999, after a

supervisor reported that Dinora and his crew were

not working as they should have been, Turner

caused that supervisor to be relieved of his duties.

b. In 2001, a second supervisor of Dinora

became aware that Dinora and his crew were not

working as they should have been, and the

supervisor instructed Dinora that Dinora and his

crew had to report to work and fulfill their job

responsibilities. The next day Turner told the second

supervisor to leave Dinora and his crew alone. In the

summer of 2002, the second supervisor parked across

the street from the Herndon Building and observed

Dinora leave the building as if he were finished

working between 6:30 p.m. and 7:00 p.m. Dinora saw

the supervisor watching him. The next day,

Turner called the second supervisor into his office

and told the second supervisor not to check up on

Dana Dinora again.

35A

ec. During January 2003, Cecil Turner

called a third supervisor into his office and

reprimanded the third supervisor for having

reported that Dinora and his crew were not

working as they should have been.

d. In January 2004, a fourth supervisor

made a written report to Turner that documented

the fourth supervisor’s findings that the three

janitors were not cleaning the buildings properly

and were not at work at required times. Shortly

after the report was submitted, Turner screamed

at the fourth supervisor for making a written

report and said that the action of the fourth

supervisor had stabbed him in the back.

e. On August 9, 2005, the fourth

supervisor tried to visit Dinora at the Herndon

Building during Dinora’s work hours but was

unable to locate Dinora. After paging Dinora, he

reported to the Herndon Building where he met

the fourth supervisor, who relayed to Dinora

complaints regarding the lack of cleanliness of the

Building. Dinora telephoned Turner and told him

that Dinora thought the supervisor was trying to

catch him not working. During the conversation

the following statements were made:

Dinora: ... Its like she wanted to come over

here and try to catch me [ think.

Turner: Nah, nah .. . it ain’t about that. She

ain’t looking to catch you doing [ex-

pletive removed]. She knows better

than that.

36A

Dinora: Okay. Well....

Turner: She already [expletive removed]

knows better than that.

Dana. She has to do what the [exple-

tive removed] I tell her to do. She re-

DOFtE. ...

Okay? The building managers come

tome....

They all [expletive removed] report to

me. So, you ain’t got [expletive

removed] to worry about.

Hey man. Don’t, don’t let that [exple-

tive removed] scare you, Dana. I done

told you I got your back, man.

f. In the summer of 2005 Turner learned

that the Lhnois Secretary of State’s Inspector

General would be conducting an audit of all

departments, including the Physical Services

Department. After Turner learned this, he cautioned

Dinora that Dinora and his crew should put in leave

slips while the possibility of an Inspector General

investigation existed.

g. On August 17, 2005, the fourth

supervisor again told Turner that Dinora,

Medvesek and Boyce were not at work when they

were supposed to be working. Turner told the

fourth supervisor to tell the janitors that they

needed to be at work and if they were not there

37A

they should put in a leave slip. Turner also

discouraged the fourth supervisor from checking-

up on the janitors by saying that the fourth

supervisor should not “baby sit” the janitors.

h. Shortly after Turner’s meeting with

the fourth supervisor, on August 17, 2005 Turner

caused another individual to warn Dinora that he

and his crew needed to be at work because

Secretary of State personnel could be checking up

on them. During that conversation the following

statements were made:

Individual: Ceci! told, Cecil’s at work, and he

didn’t want to talk to you at work.

But, he wanted me to call you and

tell you that [your supervisor] .. .

said something to him about she

knew that you guys were signing in

and leaving .. ..

Dinora: Okay. You want me, you think I

should call him at work, or...

Individual: No. No. No, I mean .. .no. Don’t call

him at work.

‘Cause he don’t wanna talk about it,

you know, on the work phone.

Dinora: Okay. [ll pass it on to the boys.

Individual: Okay. Don’t say I said...

Okay. But just, yeah, but just... just

don’t say I said it, okay?

Dinora: Hey, uh, you want me to just say uh

. .. just tell ‘em to be careful?

Individual: Yeah. Just tell ‘em to be careful with

it.

21. In January 2005 when Dinora’s

supervisor saw him at a high school basketball

game during his normal work hours, the supervisor

contacted Turner. Turner falsely claimed that he had

spoken to Dinora before the game and had approved

Dinora’s leave to attend the game.

22. In August 2005, the investigators from the

Inspector General’s Office for the Illinois Secretary

of State met with Turner and informed him that

Dinora, Medvesek and Boyce were being

investigated for not being at work during their

official duty hours. The Inspector General agents

asked Turner not to tell the janitors of such

investigation. Later, on September 9, 2005,

Turner personally warned Dinora the Inspector

General was investigating the janitors and that

Dinora needed to make sure that he submitted leave

slips if he was not at work. On that date the

following statements were made:

Turner: ... You just take it easy and just fill

your slips out. Okay?

Dinora: Okay.

39A

Turner: ‘Cause that, that [expletive removed]

[your supervisor] . . . and you don’t

say a [expletive removed] word about

this. That [expletive removed] [your

supervisor] called the IG on you guys.

Dinora: Oh really?

Turner: Yep, so theyre watchin’ your moves.

Just wanted you to know it. But you

didn’t hear it from me.

Duty to Provide Honest Services

23. As state employees, Turner, Dinora,

Medvesek and Boyce each owed the Secretary of

State and the State of Illinois a duty to provide

honest, loyal and faithful services free from

deception, promotion of self interests, self dealing and

fraud.

Failure of Janitors to Provide Honest

Services

24. During the course of the scheme, the

defendants Dana Dinora, David Medvesek, Steven

Boyce and Cecil Turner deprived the State of

Illinois of its intangible mght to their honest

services as follows:

a. The three janitors, Dinora, Medvesk

and Boyce, failed to be at work for all of their

official duty hours as required;

b. They assisted each other’s

unauthorized absences from work;

40A

c. They developed and implemented

methods to cover-up their unauthorized absences

from work;

d. They failed to inform their employer of

their own unauthorized absences and that of the

other janitors;

e. Defendant Turner hindered, impeded

and prevented the _ supervisors of Dinora,

Medvesek and Boyce from doing their jobs to

properly supervise and discipline his co-

defendants;

f. Turner failed to take action to ensure

that Dinora, Medvesek and Boyce were providing

honest services to the Illinois Secretary of State

and the State of Illinois when put on notice that

they were not;

g. Turner took affirmative action to

cover-up the unauthorized absence of Dinora from

his work as a janitor;

h. Turner allowed the moneys of the

Illinois Secretary of State and the State of Illinois

to be paid to his co-defendants for work they did

not perform and for which the Hlinois Secretary of

State and the State of Illinois received no benefit;

and

i. Each of the defendants received a

substantial amount of money for wages to which

he was not entitled, as they were not providing

honest services.

41A

C. Execution of the Scheme

25. On or about the dates listed below for

each count for the purposes of executing and

attempting to execute the aforesaid scheme the

defendants

DANA DINORA,

DAVID MEDVESEK, and

STEVEN BOYCE

knowingly caused the interstate wire transfer of

funds identified in each count to be made, and the

defendant

CECIL TURNER

knowingly aided and abetted the execution of his

co-defendant’s scheme and knowingly executed

the scheme to defraud his employer of his honest

services:

COUNT DATE PAYEE AMOUNT BANK

1. 10/26/2004 Dinora $1,143.40 Bank One

2. 11/10/2004 Dinora $1,153.40 Bank One

3. 12/23/2004 Dinora $1,153.40 Bank One

4. 11/10/2004 Boyce $1,026.31 Nat'l City

All in violation of Title 18 U.S.C. §§ 1343, 1346

& 2.

42A

COUNT FIVE

MAKING FALSE STATEMENTS

18 U.S.C. § 1001

On or about October 13, 2005 at Springfield,

Illinois, in the Central District of [llinois, the

defendant

CECIL TURNER

knowingly and willfully made to agents of the

Federal Bureau of Investigation the following

materially false and fictitious statements and

representations, with respect to a matter within the

jurisdiction of the Federal Bureau of Investigation,

namely an investigation related to whether

night janitors employed by the Illinois Secretary

of State’s Office defrauded the State of Illinois by

being paid, by means of interstate wire transfers,

for hours they did not work:

a. Turner told the agents that the first

time he learned there was a problem with the

janitors at the Herndon’ Building was

approximately one and one half months prior to

October 13, 2005, when in fact supervisors had put

him on notice about the janitors on a number of

occasions prior to that date;

b. Turner told the agents that he had

never reprimanded any supervisor for checking on

the janitors at the Herndon Building, when in fact

he had done so on at least one occasion; and

43A

c. Tuner told the agents that he had

complied with the request of the Inspector

General investigators not to tell anyone of their

investigation of the janitors at the Herndon

Building, when in fact he personally had warned

Dinora of the investigation by stating to Dinora on

September 9, 2005, “[Your supervisor] called to IG

guys on you guys.... Yep, so theyre watching

your moves. ... But you didn’t hear it from me.”

All in violation of Title 18 U.S.C. § 1001.

COUNT SIX

MAKING FALSE STATEMENTS

18 U.S.C. § 1001

On or about November 17, 2005 at

Springfield, Illinois, in the Central District of

Illinois, the defendant

CECIL TURNER

knowingly and willfully made to agents of the

Federal Bureau of Investigation the following

materially false and fictitious statements and

representations, with respect to a matter within the

jurisdiction of the Federal Bureau of Investigation,

namely an investigation related to whether night

janitors employed by the IDlinois Secretary of

State’s Office defrauded the State of Illinois by being

paid, by means of interstate wire transfers, for

hours they did not work:

44A

a. Turner told the agents that he was not

aware of Dinora or any other janitors’ not being at

work when they were supposed to be, when in fact

he knew that Dinora and his crew were not

always at work at such times; and

b. Turner told the agents that he had

never told Dinora that he would watch Dinora’s

back and cover for Dinora, when in fact Turner had

made such statements to Dinora on at least one

occasion, including telling Dinora on August 9, 2005,

“I got your back.” Additionally on September 22,

2005, when the following statements were made:

Dinora: You know I haven’t been at work all

the time, in the past.

Turner: Yeah. But they don’t know that. They

don’t know that, but you at work now.

That’s all, hey. That’s all the [exple-

tive removed] you gotta worry about.

Dinora: But, you always covered my back. I

mean,I....

Turner: Yeah. Ain’t nobody asked me nothing

about that. Ain’t nobody asked me

nothing about that.

That ain’t, that hasn’t even come up.

What theyre doing is their investiga-

tion, now . . . which ain’t [expletive

removed].

45A

Dinora:

Turner:

Dinora:

Turner:

All you gotta do, when you leave

there, you put in a ship. Like I told

you.

Well, that’s another problem. Im

gettin’ a little low on time. Are we,

you think we’re ever gonna go back to

the old daysor.. .

{Expletive removed]. Well, I don’t

know ... ‘tl they get done with their

investigation . . .{laughs] yeah.

You ain’t gonna get fired. [Laughs].

Then what the Inspector General

would do is they would go and do the

investigation, and once they complete

the investigation, they send it to the

director for his decision as to what

happens. They don’t make no recom-

mendations. All they can do is

complete their investigation.

I mean, you've always, you've always

covered my back.

Hey, hey, I know that. And Pm bein’

straight with ya ... don’t you [exple-

tive removed] tell nobody that you

and I talked about that [expletive

removed]. . . ‘cause thatll get my

[expletive removed] in a sling.

46A

I told you Id cover your [expletive

removed], but now, it’s like you gotta

cover your [expletive removed].

Okay? And if [expletive removed] gets

back to normal, then, Ill let you know

then.

All in violation of Title 18 U.S.C. § 1001.

A TRUE BILL,

s/ Foreperson

FOREPERSON

s/ Rodger A. Heaton

RODGER A. HEATON

UNITED STATES ATTORNEY

PJC/GMG

ATA