02-1702, 02-1726 & 02-1925 U.S. v. Serpico

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“In United States v. Holzer, 840 F.2d 1343, 1349 (7th Cir. 1988), we addressed almost this very issue: When, as is often the case (it was here), the jury acquits a defendant of some counts of a multi-count indictment, the defendant is not entitled to a new trial on the counts of which he was convicted, on the theory that the conviction was tainted by evidence, which the jury heard, relating to the counts on which it acquitted. … No rule of evidence is violated by the admission of evidence concerning a crime of which the defendant is acquitted, provided the crime was properly joined to the crime for which he was convicted and the crimes did not have to be severed for purposes of trial. It makes no difference, moreover, whether the jury acquits on some counts or the trial or reviewing court sets aside the conviction.

“[T]he government first claims the district court applied the wrong offense guideline. The district court calculated the defendants’ sentences under sec. 2F1.1 (the fraud guideline), but the government argues it should have applied sec. 2E5.1 (the benefit plan bribery guideline) during sentencing. We review the district court’s selection of the applicable guideline section de novo. United States v. Dion, 32 F.3d 1147, 1148 (7th Cir. 1994). Clearly, the government wants it both ways; having chosen to prosecute Serpico under the mail fraud statute, it wants him sentenced based on bribery. As unjust as this practice might seem in a case like this (Serpico essentially would be sentenced for a crime, bribery, he could not have been charged with because the statute of limitations had run), the guidelines not only allow but even encourage this scheme, which someone could argue is a little like an old bait-and-switch. Under sec.1B1.2(a), however, the district court is instructed to ‘[d]etermine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted).’ USSG sec. 1B1.2(a) (1990). The commentary to that section elaborates: ‘When a particular statute proscribes a variety of conduct that might constitute the subject of different offense guidelines, the court will determine which guideline section applies based upon the nature of the offense conduct charged in the count of which the defendant was convicted.’ sec. 1B1.2, comment. (n.1). In other words, as in United States v. Hauptman, 111 F.3d 48 (7th Cir. 1997), the sentencing judge should endeavor to locate the ‘essence’ of the defendant’s conduct, not merely the name attached to the statute violated.

“The indictment charged that Serpico ‘sought and received a substantial personal benefit and kickback in exchange for influencing’ the MPP to provide the $6.5 million loan, which is closer to bribery than mail fraud (in sec. 2E5.1, a ‘bribe’ is ‘the offer or acceptance of an unlawful payment with the specific understanding that it will corruptly affect an official action of the recipient.’ sec. 2E5.1, comment. (n.1)). Similarly, the loans-for-deposits scheme was basic bribery, with Serpico promising union deposits to the banks in exchange for favorable personal loans. Therefore, the district court should have sentenced Serpico under sec. 2E5.1.”

Affirmed in part, reversed in part, and remanded.

Appeals from the United States District Court for the Northern District of Illinois, Manning, J., Evans, J.