đ€ ORDER ON MOTIONS IN LIMINE signed by the Honorable Matthew F for Empress Casino Joliet Corporation et al v. Blagojevich et al :: Justia Dockets & Filings
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Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723, 728 (7th Cir. 2014) ( Empress Casino III ). 1 We held that the racetracks had not presented evidence sufficient to survive summary judgment that campaign contributions to Blagojevich had proximately caused the legislature's passage of the 2006 Act or that the racetracks bribed Blagojevich.
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Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519 (7th Cir. 2011) (Empress III). Sitting en banc, we rejected the position that the panel had taken with regard to the Tax Injunction Act. Empress Casino Joliet Corp. v. Balmoral Racing Club, 651 F.3d at 726 (Empress IV).
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Empress Casino Joliet Corporation, doing business as Hollywood Casino Joliet, owns and operates a casino in Illinois. It offers slots, live and video poker, blackjack, craps, roulette, and table.
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Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519 (7th Cir.2011) (Empress III ). Sitting en banc, we rejected the position that the panel had taken with regard to the Tax Injunction Act. Empress Casino Joliet Corp. v. Balmoral Racing Club, 651 F.3d at 726 (Empress IV ).
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Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519 (7th Cir.2011) (Empress III ). Sitting en banc, we rejected the position that the panel had taken with regard to the Tax Injunction Act. Empress Casino Joliet Corp. v. Balmoral Racing Club, 651 F.3d at 726 (Empress IV ).
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Empress Casino Joliet Corp.Balmoral Racing Club, Inc.
Balmoral Racing Club, Inc.
Empress Casino Joliet Corp.
Balmoral Racing Club, Inc.
United States Court of Appeals, Seventh Circuit.
Empress Casino Joliet Corp.
Balmoral Racing Club, Inc.
This appeal pits casinos against racetracks in our circuit's latest encounter with the Blagojevich corruption scandal in Illinois.
§ 1961 et seq.
The racetracks argue on appeal that plaintiffs failed to prove a RICO conspiracy, that the district court erred by allowing plaintiffs to add the state-law claims, and that other asserted errors warrant a new trial.
We first review the factual and procedural background of this case.
Second, we examine the sufficiency of the evidence of an illegal agreement and a pattern of racketeering activity.
Third, we address the late amendment to the complaint to add the state-law claims.
Finally, we examine several claims of trial error.
It turned to state government for help.
In 2006, Illinois enacted H.
This appeal focuses on the racetracks' effort to renew the law in what we call the 2008 Act.
The Johnston family owns several businesses, including shares in the racetrack defendants Maywood Park Trotting Association, Inc.
John Johnston was an executive at the two defendant racetracks and one of the beneficiaries of the family trust that partially owned the tracks.
In May 2007, Johnston hired Alonzo Monk as a lobbyist for the racetracks.
Monk had been a longtime aide to Governor Rod Blagojevich and had served as Blagojevich's chief of staff and campaign manager before starting his own lobbying and consulting business.
Monk worked to renew the 2006 Act's horseracing subsidy that was to sunset.
The primary evidence at issue in this appeal is a series of meetings and phone calls among Johnston, Monk, and Blagojevich.
The federal government recorded many of the calls and conversations during a broader criminal investigation of Blagojevich.
We lay out the details below in our discussion of the sufficiency of evidence.
In broad terms, in April 2008, Johnston met with Blagojevich at the governor's campaign fundraising office.
The two discussed the expiration of the 2006 Act.
At the end of the meeting Blagojevich brought up Johnston's support for his campaign.
There is no evidence that Johnston agreed to make a contribution at that time, and no payment was made then.
That meeting did not succeed in securing the 2006 Act's renewal.
At the end of May 2008, the 2006 Act expired.
A number of conversations followed involving Monk, Johnston, Governor Blagojevich, and his brother Rob.
On November 20, 2008, the legislature passed the 2008 Act, which was presented to Article source Blagojevich on November 24 for his signature.
The governor did not sign immediately, but there followed a number of conversations among Blagojevich, Monk, and Johnston.
As we explain below, on December 3, 2008, according to Monk's testimony, the quid pro quo agreement was pinned down and Johnston committed to make the contribution in return for the governor's signature.
Blagojevich was arrested on December 9.
On December 15, while on pretrial release and before he was impeached and removed from office, rica crocs casino costa signed the 2008 Act.
Johnston never made the promised contribution.
Monk pled guilty to conspiring with Blagojevich to solicit a bribe from Johnston.
Johnston received immunity from prosecution and testified before a grand jury and at Blagojevich's criminal trials.
The casinos alleged that the racetracks had violated 18 U.
§ 1962 d by conspiring to violate RICO.
In 2013, the district court granted summary judgment in favor of the racetracks, concluding that the casinos had not offered evidence sufficient to show that the racetracks' alleged bribes proximately caused the casinos' losses pursuant to the 2006 and 2008 tax legislation.
Empress Casino Joliet Corp.
We affirmed summary judgment regarding the 2006 Act but reversed regarding the 2008 Act.
Empress Casino Joliet Corp.
We held that the racetracks had not presented evidence sufficient to survive summary judgment that campaign contributions to Blagojevich had proximately caused the legislature's passage of the 2006 Act or that the racetracks bribed Blagojevich to sign the 2006 Act.
But on the 2008 Act, we held there was sufficient evidence that the racetracks formed a quid pro quo agreement with Blagojevich that caused him to sign the Act.
In allowing claims on the 2008 Act to go forward, we stressed that the only RICO element we were deciding was the issue of proximate cause, noting in particular that the pattern requirement remained open.
After we reversed looney toons gameboy game judgment on the 2008 Act, the district court allowed plaintiffs to amend their complaint, over defendants' objections, to add state-law claims for civil conspiracy and unjust enrichment.
The court also denied defendants' motion for summary judgment focusing on the RICO pattern requirement.
This appeal followed, challenging the sufficiency of the evidence supporting the RICO count and the district court's grant of leave to amend the complaint, and arguing that various alleged errors warrant a new trial.
Sufficiency of the Evidence The racetracks appeal the district court's denial of their Rule 50 b renewed motion for judgment as a matter of law.
They argue that the evidence presented at trial cannot support several aspects of the verdict that they engaged in a racketeering conspiracy in violation of 18 U.
We review de novo the denial of a Rule 50 b motion.
Cook County, 689 Empress casino joliet corp v johnston />The statute defines RICO conspiracy by reference to a direct RICO violation.
United States, 522 U.
Courts have further fleshed out those requirements.
A RICO conspirator need not agree to commit personally two predicate acts in furtherance of the enterprise; rather, he must agree that someone will commit them.
The racetracks argue that a rational jury could not have found from the evidence presented at trial: 1 that they agreed to facilitate a RICO enterprise; 2 that the racetracks made a quid pro quo agreement with Blagojevich; 3 that the racetracks agreed that someone would commit two RICO predicate acts; or 4 that the agreed-on scheme would form a pattern of racketeering activity.
We address these challenges in turn.
The first issue was waived by failure to raise it in the Rule 50 motion.
The evidence supports a finding of a quid pro quo agreement that extended to at least two predicate acts of racketeering, but that evidence does not support a finding of an agreement to engage in a pattern of racketeering activity.
Facilitating a RICO Enterprise The racetracks did not properly preserve for appeal their argument that the evidence did not support a finding that the racetracks agreed to facilitate the Blagojevich racketeering enterprise.
To preserve a sufficiency-of-the-evidence challenge for appeal in a civil case, a party must move for judgment as a matter of law under Federal Rule of Civil Procedure 50 a and renew that motion under Rule 50 b after the jury's verdict.
In their Rule 50 a and b motions, the racetracks challenged the sufficiency of the evidence on the other grounds we address below.
However, the racetracks did not argue in their Rule 50 motions that there was insufficient evidence that they knowingly facilitated the activities of the racketeering enterprise.
To avoid the Rule 50 problem, the racetracks suggest that we review instead whether the district court erred in denying their supplemental motion for summary judgment.
But denial of summary judgment is an interlocutory matter subsumed by a final judgment.
After trial, the summary judgment denial is ancient history and not subject to appeal.
The racetracks argue that, even after the jury has rendered its verdict, we should review the denial of summary judgment as to purely legal issues.
See Lawson, 791 F.
This controversial exception for purely legal issues does not apply here.
The racetracks' argument regarding facilitation challenges the sufficiency of the evidence supporting the jury's verdict, so their failure to raise the argument in Rule 50 a and b motions blocks that particular argument on appeal.
Quid Pro Quo Agreement We proceed to the racetracks' properly preserved challenges to the sufficiency of the evidence supporting the jury's findings of a quid pro quo agreement encompassing at least two predicate acts as part of a pattern of racketeering activity.
The racetracks' liability in this https://new-fit.ru/casino/become-a-casino-dealer.html depends on evidence sufficient to enable a jury to find that there was a quid pro quo agreement.
An agreement forms the core of liability for RICO conspiracy under 18 U.
See Salinas, 522 U.
A quid pro quo agreement to trade a campaign contribution for the governor's signature is the see more of the casinos' claim for a RICO conspiracy, as well as for their state-law claims for civil conspiracy and unjust enrichment.
First, ample evidence shows that Monk and Blagojevich communicated to Johnston that Blagojevich would trade his signature on the 2008 Act for a campaign contribution.
Second, the jury could conclude that Johnston agreed to this arrangement on behalf of the racetracks.
The casinos argue that Blagojevich first delivered the message that he was looking for a bribe in an April 2008 meeting.
In that meeting, Johnston met with Blagojevich at the governor's campaign fundraising office.
Among other things, the two discussed the expiration of the 2006 Act.
At the end of the meeting, Blagojevich told Johnston that he appreciated Johnston's past support and hoped he would continue his support in the future.
Johnston testified that he did not respond to the comment because he and his father had already decided not to contribute to Blagojevich in 2008.
Blagojevich was looking for in that meeting was a contribution.
United States, 500 U.
Exchanging a campaign contribution for state action, however, is not legal.
Juxtaposing the discussion of the two topics so closely is dangerous, walking close to the edge of thin legal ice.
But the evidence does not show that Johnston agreed to the proposed exchange in that April meeting with Blagojevich.
Later events provide more evidence from which the jury could have found that Johnston agreed to exchange the campaign contribution for the governor's signature sometime in August or September 2008.
Sometime in that period, Blagojevich called Johnston.
Monk's several calls with Robert and Rod Blagojevich in November 2008 reassuring them that Johnston's contribution would be forthcoming provide additional evidence that Johnston had agreed to make the contribution in an unlawful exchange for Blagojevich's support for the 2008 Act.
Still, this evidence was from Monk, not from Johnston.
But when we add in the evidence of events after the legislature passed the 2008 Act, the jury had a solid basis for inferring that Johnston had agreed to a quid pro quo scheme.
On November 24, 2008, the same day the bill was presented to Blagojevich for his signature, Johnston responded to an email chain reporting that the governor would likely sign the 2008 Act before mid-December.
We are going to have to put a stronger bit in his mouth!?!
Further evidence of an illegal quid pro quo agreement came from the events of December 3, 2008, when Monk and Rod Blagojevich met at a Blagojevich campaign office.
Government tapes captured Monk and Blagojevich discussing what to tell Johnston about the timing of the bill signing relative to Johnston's contribution.
Monk initially met with Johnston and Johnston's father, Billy.
The three discussed the 2008 Act and the racetracks' eagerness for Blagojevich to sign it.
There was no talk of a campaign contribution at that point.
After the meeting, Monk asked Johnston to walk him out to the parking lot.
He testified that he did not react kindly to the suggestion.
But Monk's very different account of Johnston's reaction provides ample evidence from which a jury could find that Johnston had agreed to the quid pro quo arrangement.
Later that day, Monk called Blagojevich to report the result of the meeting with Johnston.
Monk reported that Johnston said he would make the contribution within two weeks.
Monk declined that offer.
robert de niro death trial, Monk testified that what he had told Blagojevich about the conversation with Johnston was accurate.
Monk's testimony about the December 3 conversation with Johnston gave the jury sufficient evidence that Blagojevich had proposed a quid pro quo exchange and that Johnston had agreed to it.
I don't think we had an agreement.
Blagojevich was looking for a contribution before the bill would be signed.
The jury was entitled to put two and two together.
See United States v.
The evidence, viewed in the light most favorable to the casinos, allowed the jury to find that Blagojevich conditioned his quick signature on the 2008 Act on Johnston's campaign contribution, that Monk communicated that to Johnston, and that Johnston agreed to that arrangement.
The evidence supported the jury's finding of a quid pro quo agreement.
Two Predicate Acts The racetracks next challenge the sufficiency of evidence that they agreed to the commission of two RICO predicate acts.
Liability for a § 1962 c RICO conspiracy requires an agreement that someone conduct an enterprise through a pattern of racketeering activity.
§ 1962 cd ; Salinas v.
United States, 522 U.
Racketeering activity is defined to include any of a long list of crimes.
A pattern of racketeering activity requires two or more predicate acts.
For the sake of clarity, we analyze the two-predicate-acts requirement in this section and whether those predicate acts were enough to form a pattern in the next section.
A rational jury could find that Johnston committed or agreed to the commission of several RICO predicate acts.
Johnston's agreement to bribe Blagojevich would count.
United States, 504 U.
And agreeing that Blagojevich would commit official misconduct by signing the bill in exchange for a bribe was also an agreed-upon predicate act.
§§ 1343, 1346, 1961 1 B.
Each use of the wires, such as a cellphone call, to looney toons gameboy game the bribe would count, as long as Johnston agreed to it or it was foreseeable in carrying out his agreement.
United States, 561 U.
Using the wires for lobbying and political logrolling is not honest services wire fraud, but arranging and paying a quid pro quo bribe certainly is.
See Blagojevich, 794 F.
It is also possible that the casinos' daily tax payments might have counted as honest services wire fraud.
See Sheneman, 682 F.
Each use of the wires can be an individual count of wire fraud and an individual RICO predicate for the purpose of establishing two predicate acts.
The jury rationally could have found that Johnston agreed to a bribery scheme that would foreseeably include at least two acts of racketeering.
Pattern of Racketeering Activity The casinos run into trouble, however, in showing that the parties agreed to predicate acts forming a pattern of racketeering activity.
§ 1961 5but case law shows that two predicate acts are not always sufficient.
Northwestern Bell Telephone Co.
The predicate acts' relationship is not disputed here.
Our focus is on continuity.
Rather, it is a unique cause of action that is concerned with eradicating organized, long-term, habitual criminal activity.
Continuity limits RICO to schemes meant to exist over a period of time, not one-off crimes.
Here, the agreed predicate acts lacked the requisite continuity to form a pattern under either analysis.
Closed-End Continuity The racetracks' scheme does not exhibit closed-end continuity, and the casinos admit that they did not rely at trial on a closed-end argument.
Bank of Waukegan, 804 F.
Harbridge Merchant Services, Inc.
Here, the arrangements for the bribe began no earlier than the April 2008 meeting about the bill at the Friends of Blagojevich office and ended in December 2008, when Blagojevich signed the bill.
One quid pro quo agreement, one planned campaign contribution for one bill, one tax imposed, and acts over at most eight months to arrange the scheme do not show closed-end continuity.
The three-percent tax was also time-limited and does not provide the type of distinct injuries or variety of predicate acts that would form closed-end continuity.
The evidence here does not demonstrate a threat of repetition.
This case is about one quid pro quo agreement to exchange one campaign contribution for Blagojevich's signature on one bill.
Once Blagojevich signed the bill, the scheme was over.
After we affirmed summary judgment on claims regarding the 2006 Act, the evidence of bribery in this trial related only to the 2008 Act.
See Empress Casino III, 763 F.
Lake County, we affirmed summary judgment for defendants on RICO claims alleging that the Lake County Sheriff had cut a towing company's assigned towing area because the owner had supported the sheriff's opponent in an election.
We rejected open-ended continuity because all of the predicate acts alleged related to campaign fundraising from the 1998 election campaign.
We have applied this logic in other cases involving similarly limited criminal schemes.
The plaintiff alleged that Alpha Industries had bribed an employee of another company so that Alpha would be included as a subcontractor in a defense contract.
Alpha paid the bribe in three installments, and there were eleven phone calls and eight letters associated with it.
Although the First Circuit decided Roeder before H.
Waiting Angels Adoption Services, Inc.
RICO does not require more than one scheme, H.
Applying the reasoning from these cases to the Blagojevich-Monk-Johnston bribery agreement in 2008, a reasonable jury could not have found a scheme with open-ended continuity.
No specific threat of repetition existed.
Once the bill was signed, the scheme was at its natural end point, at least on the evidence presented at trial.
The tax payments under the 2008 Act, of course, continued for a limited time after the bill's signing, but that is not enough to support open-ended continuity.
The casinos argue that they satisfied the continuity requirement based on the possibility that the racetracks would again employ bribery when the 2008 Act was scheduled to sunset in 2011.
There would be a gubernatorial election in 2010.
No one in 2008 could know who would be governor in 2011, much less whether illegal tactics would be needed or even welcome in securing reenactment in 2011.
The evidence regarding the racetracks' consideration of the 2008 Act's sunset provision does not show any plans to use illegal means to secure renewal.
The racetracks rely on a September 2008 email exchange.
The email exchange shows the racetracks planning to have the 2008 Act run for a longer period so that they could get a replacement act passed before the 2008 Act expired.
Those emails are about the minutiae of drafting the 2008 Act, not a criminal scheme for getting a future bill enacted.
We will need to change page 5, line 10 to reflect repeal effective 3 years after effective date of law.
In 2011 the veto session could end up being later than three years after the effective date.
Then again, that would be a nice problem to have to worry about.
I need to give him a call to discuss.
We are not convinced this is a reasonable reading of this email chain.
The emails reflect the racetracks' awareness that new legislation would be needed in the future and their intent to pursue it.
But that is all the emails show.
There is no indication that the racetracks considered how to get the later act through the legislature or how to get the governor to sign it, let alone that they were planning or even contemplating another bribe to an as-yet-unknowable governor or legislators.
The evidence certainly shows that Blagojevich's regular way of conducting business involved bribery.
And Johnston knew about the criminal investigation into Blagojevich by late 2007.
But Blagojevich is not the defendant here.
The question is the scope of what Johnston and the racetracks agreed to.
Monk and Johnston both testified that Johnston was not aware of the various other Blagojevich schemes mentioned at trial.
There is no evidence that Johnston agreed to participate in any corrupt scheme except for the one to have Blagojevich sign the 2008 Act.
A one-time bribe to a corrupt public official is criminal and wrong, but without more it is not enough to prove a pattern of racketeering activity.
This case contrasts with H.
Here, the evidence of unlawful activity related to only the 2008 Act.
The casinos did not present evidence that would allow a reasonable jury to find that the racetracks agreed to conduct their business regularly through quid more info quo bribery or agreed to participate regularly in Blagojevich's larger corrupt scheme through bribery, or that there was a threat of such activity.
It is, of course, possible that the racetracks might have tried to use bribery again in 2011, if Blagojevich had not been removed from office and had run successfully for a third term.
That click to see more possibility is not enough to support the jury finding of a conspiracy to engage in a RICO pattern of racketeering activity.
There is insufficient evidence to support a jury finding of a pattern of racketeering activity, so we reverse the district court's denial of the racetracks' Rule 50 b renewed motion for judgment as a matter of law on this issue.
Leave to Amend We next address the racetracks' claim that the district court abused its discretion by allowing the casinos to add state-law claims for civil conspiracy and unjust enrichment to their complaint after we affirmed summary judgment regarding the 2006 Act but let claims regarding the 2008 Act move forward.
Leave to amend pleadings is left to the sound discretion of the district court.
We find no abuse of discretion here.
The amendment was a prompt response to the altered landscape of the case after we affirmed summary judgment on the 2006 Act claims but allowed the 2008 Act claims to go forward.
We issued our ruling on summary judgment on August 15, 2014, in which we signaled there might well be a problem in showing a pattern based on only the 2008 Act.
Empress Casino III, 763 F.
The casinos moved for leave to amend their complaint on October 2, 2014.
We regularly affirm district courts' decisions to deny unduly delayed requests to amend pleadings.
But affirming discretionary denial of leave to amend does not suggest that we would also hold that a court would have abused its discretion in granting leave to amend, even in similar circumstances.
In their appellate briefing on amendment issue, the racetracks have not cited a case in which we reversed a district court's exercise of discretion to grant leave to amend.
Such cases are exceedingly rare.
City of Delphi, 123 F.
As the district court held, since the new state-law claims relied on the same facts as the RICO claim, the amendments did not unfairly prejudice the racetracks.
Both state-law theories, civil conspiracy and unjust enrichment, depended on the quid pro quo agreement between Blagojevich and Johnston, brokered by Monk.
The Illinois civil conspiracy claim was based on the agreement between Johnston and Blagojevich.
Here, the unjust benefits were the payments received as a result of the agreed bribe to sign the 2008 Act.
The racetracks argue that the additional claims unfairly prejudiced them because they were unable to conduct sufficient discovery on a potential unclean hands defense to the unjust enrichment claim.
We are not persuaded.
The district court enforced many of the racetracks' document and deposition requests related to the casinos' lobbying on the 2006 and 2008 Acts.
Blagojevich or to members of or candidates for the Illinois General Assembly between 2005 and 2008.
The racetracks have not demonstrated unfair prejudice here such that we could conclude that the district court abused its discretion in granting leave to amend.
Claims of Trial Error The racetracks also appeal the denial of their Rule 59 motion for a new trial based on several alleged trial errors.
We review the denial of a Rule 59 motion for a new trial for an abuse of discretion.
Wisconsin Dep't of Corrections, 445 F.
We find no abuse of discretion in the district court's conclusion that the alleged errors do not warrant a new trial.
We examine the claims of error in turn.
Evidence of 2002â2007 Campaign Contributions The racetracks argue that the district court erred by admitting evidence of their contributions to Rod Blagojevich from 2002 to 2007 and also erred by not instructing the jury that those contributions were legal.
We review the district court's decision to admit the evidence of the 2002 to 2007 contributions to Blagojevich for abuse of discretion.
We find none here.
See United States v.
The casinos were trying to prove the opposite of a legal contribution.
Plenty of other evidence linked Johnston and Blagojevich, some of it in much more damning fashion.
The district court also gave a proper limiting instruction, which would have mitigated any risk of unfair prejudice.
Absent indications to the contrary, we presume that juries heed limiting instructions.
We also disagree with the racetracks that the district court erred by refusing to instruct https://new-fit.ru/casino/graton-casino-craps.html jury that the see more to 2007 contributions were legal and not bribes.
It is common for citizens and corporations to donate to political campaigns, and there is nothing illegal about this practice.
The district court did not abuse link discretion in wording the instruction as it did.
Johnston had information that would have incriminated him.
You are not required to draw this inference.
They point out that Johnston testified before the grand jury and in the Blagojevich trials, albeit subject to immunity, and assert that he answered go here question in this case.
The district court did not abuse its discretion in giving the adverse inference instruction, which was legally accurate and permissible.
The Fifth Amendment allows adverse inference instructions against parties in civil actions.
Johnston told the jury that he testified before a grand jury and at both of Blagojevich's trials and never refused to answer a question.
He also testified that he had told the jury the same story about the events of December 3, 2008 that he had testified to in the Blagojevich trials and that he did not believe any of his testimony incriminated him.
Johnston's counsel argued to the jury that Johnston had disclosed everything to the government tilman fertitta casino that there were no adverse inferences to be made.
Reversing course and testifying after invoking the Fifth Amendment privilege does not remove the relevance of a witness's prior silence as one piece of evidence a jury may consider.
City of Chicago, 266 F.
City of Chicago, 513 F.
Johnston's credibility was at the core of this trial.
The jury had to choose between competing accounts from Monk and Johnston.
The jury could properly consider Johnston's invocation of his Fifth Amendment rights and his delay in answering questions.
For example, it would not have been unreasonable to view his initial refusal to answer questions as a tactic to get his story straight before doing so, and his reluctance to be candid about the timing adds support for that interpretation.
Exclusion of Victim Impact Letter The racetracks offered as evidence a victim impact letter the U.
We find no abuse of discretion.
The district court was correct that the letter, if offered to prove that Johnston was a victim rather than a participant, is hearsay, and it had minimal probative value.
Using the letter to prove that Johnston was a victim would be using an out-of-court statement for the truth of the matter asserted.
The fact that the government included Johnston, perhaps just to ensure it did not leave anyone out, in its efforts to comply with the Crime Victims' Rights Act, 18 U.
§ 3771, also offers no evidence of probative value.
Imagine an effort to get around the hearsay problem by calling a prosecutor to testify in the civil case.
The racetracks' lawyers would have asked her whether she believed Johnston was a victim or a participant.
Her answer would have been an opinion, and it would have been based on a set of information different from what the civil jury would hear.
Any fair response to an opinion in either direction would quickly devolve into an argumentative examination that would almost certainly generate more heat than light.
This would not have been a useful contribution to the trial.
In contrast, Johnston's immunity letter was both specific to Johnston and relevant to his actions, as discussed above.
Under the Illinois Constitution, Art.
The racetracks wanted to argue that they should be liable, at most, for the taxes levied in the days between the day Blagojevich signed the 2008 Act and the day the bill would have become law anyway under the 60-day rule.
The judge sustained the casinos' objection because the argument was contrary to the jury instructions.
The district judge did not abuse his discretion in not allowing a closing argument contrary to the jury instructions.
The instructions allowed the jury to consider the 60-day rule with regard to the racetracks' motives.
The defendants may be held liable for any injury proximately caused by the alleged agreement to pay a bribe to Governor Blagojevich regardless of any events that could have happened in the future.
The district court was on solid ground here because the racetracks never mentioned using the 60-day rule in relation to damages in the argument surrounding the 60-day rule's admissibility.
Before trial, the racetracks argued that the 60-day rule was relevant to whether the casinos had carried their burden of showing proximate cause.
When that argument did not work, they argued it was relevant to their lack of motivation to bribe Blagojevich.
They never mentioned damages.
The racetracks now deny that their appellate argument is a challenge to the district court's jury instruction on proximate cause.
They assert that their argument related only to damages stemming from Blagojevich's signature of the 2008 Act, not whether the racetracks' actions caused Blagojevich to sign the 2008 Act.
The racetracks argue that the casinos' injury is easily divisible so that the damages argument does not contradict our previous rejection of the 60-day rule as a bar to proving proximate causation, which the district court cited in its ruling on the motions 200 uk casino limine.
See Empress Casino III, 763 F.
Perhaps these might have been good arguments to make to the district court before trial or while hammering out jury instructions.
Accordingly, we AFFIRM the district court's denial of the Rule 59 motion for a new trial, REVERSE the district court's denial of the racetracks' Rule 50 b renewed motion for judgment as a matter of law as to the RICO count, and REMAND this case for entry of a modified judgment consistent with this opinion.
See also Empress Casino Joliet Corp.
Balmoral Racing Club, Inc.
The casinos have also unsuccessfully challenged the constitutionality of the 2006 and 2008 Acts in state court.
Empress Casino Joliet Corp.
The district judge took a prudent approach by denying summary judgment and allowing the pattern issue to go to the jury.
The issue is fairly debatable, and because Judge Kennelly handled the issue so deftly, we need not order a new trial.
Johnston dismissed his appeal voluntarily after settling with plaintiffs.
In any event, we are satisfied that there was no independent merit to the racetracks' facilitation argument, based on the evidence of the quid pro quo agreement to bribe Blagojevich.
To whatever extent the racetracks seek a new trial on the theory that the manifest weight of the evidence was that there was no quid pro quo agreement, we reject that request consider, casino express schedule not the reasons stated in this section.
The racetracks argue on click at this page that leave to amend unfairly prejudiced them because it introduced the possibility of punitive damages into the case.
The racetracks did not make this argument to the district court, so it is forfeited.
Even if it were not forfeited, it is unconvincing.
First, this was a civil RICO case in which the defendants already faced the threat of treble damages under 18 U.
Also, the racetracks cite cases affirming denials of leave to amend to add punitive damage claims.
Taylor Machine Works, Inc.
A late attempt to add punitive damages might give a district court a sound basis to deny leave to amend, at least if RICO trebling were not already in the case, but that would not mean the court lacked discretion to allow the amendment.
To the extent the casinos also complain about evidence of Johnston's looney toons gameboy game to former Illinois Governor Jim Edgar, looney toons gameboy game district court did not abuse its discretion in finding that the racetracks had opened the door to that evidence by attempting to minimize their contributions to Blagojevich.
In this trial, Johnston first testified that he had told the government what he knew before receiving immunity from prosecution.
As Johnston's lawyers admitted the next morning, that was incorrect.
First Johnston received his immunity letter.
Only then did he answer the government's questions.
Johnston's lawyers agreed that he would correct this misstatement in his later testimony.
Yet on redirect examination by the casinos' lawyer, Johnston still stuck to his false story from the previous day.
Finally, after still more questioning, Johnston admitted that he had signed the immunity letter before answering questions.
This sequence could not have reflected well on Johnston's credibility with the jury.
The racetracks point to the Ninth Circuit's statement in Doe ex rel.
The district judge here did so and did not abuse his discretion by giving the adverse-inference instruction.
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Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62, 896 N.E.2d 277 (2008). The 2006 Racing Act, by its terms, was to expire after two years. In 2008, a bill was introduced in the Illinois legislature to extend the Act for three years (the "2008 Racing Act").
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Joliet Empress casino on fire
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS MARK HALE, TODD SHADLE and LAURIE LOGER, on behalf of themselves and all others similarly situated,
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Empress Casino Joliet Corp. v Johnston, 2014 U.S. App. LEXIS 15713 (7th Cir. Aug. 15, 2014): Deals are the stuff of legislating. Although logrolling may appear unseemly some of the time, it is not, by itself, illegal. Bribes are.
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Casinos Win $82M Verdict In RICO Suit Over Blagojevich Bribe. By. casinos led by Empress Casino Joliet Corp. and against Johnston and two of his racetracks, Balmoral Racing and Maywood Park, on.
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Motion for preliminary injunction : Denied Plaintiff JUDGES Matthew F.Kennelly ATTORNEY S Robert M.
Andalman, Blair Robert Zanzig, Jeremy D.
Margolis, Stacy Anne Manning, Loeb Loeb LLP, Chicago, IL, for Plaintiffs.
Meyers, Jay Just click for source, Rafey S.
Lezell, Kamberedelson LLC, William J.
Bishop, Foley Lardner, Gary Scott Feinerman, John Nicholas Gallo, Andrianna Deanne Kastanek, Sidley Austin LLP, Michael J.
Murray, Francis Kevin Murnighan, Carey, F'ilter, White Boland, Chicago, IL, Charles E.
Hamilton, Attorney At Law, Belleville, IL, for Defendants.
United States District Court, N.
KENNELLY, District Judge: The plaintiffs in this case own and operate riverboat gambling casinos in Elgin, Joliet, and Aurora, Illinois.
They have sued former Illinois governor Rod Blagojevich, his campaign committee Friends of Blagojevich "FOB"five entities that operate horse racing tracks in Illinois Balmoral Park, Maywood Park, Arlington Park, Fairmount Park, and Hawthorne, collectively, "the racetracks"and John Johnston, the owner of Balmoral Park and Maywood Park.
The casinos' complaint includes two claims: a claim against Blagojevich, FOB, Johnston, Balmoral Park, and Maywood Park under the Racketeer Influenced and Corrupt Organizations Act,and a state law constructive trust claim against the five horse racing tracks.
The defendants have moved to dismiss the complaint.
Plaintiffs have moved for a preliminary injunction preventing the distribution of disputed funds to the defendant racetracks.
The preliminary injunction motion is premised exclusively on the state law constructive trust claim.
The Court previously entered a temporary restraining order to preserve the status quo pending determination of the motion for preliminary injunction.
For the reasons stated below, the Court declines to dismiss the RICO claim Count 1dismisses the constructive trust claim Count 2 for lack of subject matter jurisdiction, and denies the motion for preliminary injunction because it is premised on a claim over which the Court lacks jurisdiction.
Facts The casinos allege that while Blagojevich was governor, he systematically exchanged and attempted to exchange his official actions as governor for benefits to himself and his family and contributions to FOB.
That course of conduct, the casinos allege, included a scheme that they say affected them directly.
This alleged scheme concerned two legislative enactments, one in 2006 and one in 2008, that required Illinois casinos to pay a percentage of their more info into a fund for distribution to Illinois horse racing tracks.
The rationale for the legislation was that riverboat gambling had click the following article into the business of the Illinois horse racing and breeding industry, which the legislature estimated provides 37,000 jobs to Illinois residents.
The casinos allege that Blagojevich directly importuned a number of Illinois legislators to vote in favor of the 2006 legislation the "2006 Racing Act"which the legislature passed as a result and Blagojevich then signed into law.
Johnston fulfilled his end of the deal, plaintiffs allege, about a month after Blagojevich signed the legislation.
Under the 2006 Racing Act, the casinos were required to pay three percent of their adjusted gross receipts to the state of Illinois.
The Act provided that the state would deposit those funds into the newly-created Horse Racing Equity Trust Fund and that the Illinois Racing Board, as administrator of the Fund, would disburse the proceeds to the racetracks.
The racetracks were required to spend sixty percent of the money to increase purses for horse races and the rest on improving and operating their facilities.
In May 2006, the casinos sued Illinois' Treasurer and the Illinois Racing Board in state court in Will County.
They alleged that the 2006 Racing Act violated the Takings and Due Process Clauses of the federal constitution and the public purpose, uniformity, equal protection, and special legislation provisions of the Illinois Constitution.
In June 2006, the Will County court issued a preliminary injunction requiring the Treasurer to deposit the payments from the casinos into a protest fund and prohibiting the Treasurer from transferring those sums to the Horse Racing Equity Trust Fund while the case was pending.
Several racetracks intervened in the case on behalf of the defendants to protect their interest in the funds.
They did not, however, assert any claims of their own, nor did the casinos assert any claims against them.
The state trial court found that the 2006 Racing Act violated the Illinois Constitution's de casino rueda salsa clause.
In June 2008, the Illinois Supreme Court overturned the trial court's decision and found the 2006 Act constitutional under each of the state and federal constitutional provisions the casinos had cited.
The 2006 Racing Act, by its terms, was to expire after two boston architect casino wynn />In 2008, a bill was introduced in the Illinois legislature to extend the Act for three years the "2008 Racing Act".
A number of conversations concerning the agreement, plaintiffs say, were captured on a court-ordered wiretap that provided part of the evidence that led to the filing of a federal criminal complaint against Blagojevich in December 2008.
The legislature passed the 2008 Racing Act in or about November 2008 and sent it to Blagojevich for signature.
Blagojevich then took steps to make sure that Johnston would live up to his end of the deal.
Blagojevich was arrested on December 9, 2008 after federal prosecutors filed a criminal complaint against him.
He signed the 2008 Racing Act on December 16, 2008.
On January 8, 2009, the casinos filed suit in Will County state court to challenge the constitutionality of the 2008 Racing Act.
They noted in their complaint that they were about to file a petition for certiorari in the United States Supreme Court to challenge the Illinois Supreme Court's decision concerning the 2006 Racing Act.
In their lawsuit concerning the 2008 Racing Act, the casinos asserted similar to their allegations in the first suit that the Act violated the Takings and Due Process Clauses of the federal constitution and the Illinois Constitution's public purpose and uniformity requirements.
The casinos included in their complaint an allegation, based on the then-pending criminal complaint against Blagojevich, that he had pressured an unnamed person to contribute money to FOB in return for signing the click at this page Racing Act.
F state court complaint ¶ 7.
On June 8, 2009, the United States Supreme Court denied the casinos' petition for certiorari in the case concerning the 2006 Racing Act.
They contended that newly-available evidence regarding the alleged pay-to-play scheme involving Blagojevich and Johnston showed that the 2006 Racing Act did not satisfy the Illinois Constitution's public purpose requirement, contrary to the Illinois Supreme Court's ruling.
Two days after that, japan casino genting June 12, 2009, the casinos filed this suit.
This was their first suit in which they asserted claims against the racetracks.
As noted earlier, casino by robert de niro casinos assert a civil RICO claim against Blagojevich, FOB, Johnston, Balmoral Park, and Maywood Park.
In that claim, the casinos allege that they were the victim of a pay-to-play scheme among those defendants.
The casinos also assert a state law constructive trust claim against the racetracks who are the beneficiaries of the 2006 and 2008 Racing Acts.
In late August 2009, the defendants filed motions to dismiss the casinos' claims.
In late June 2009, after the present case was already pending, Arlington Park moved to intervene in both state court suits; it had not previously sought to intervene in either case.
In September 2009, Balmoral and Maywood Park moved to intervene in the casinos' case challenging the 2008 Racing Act.
Fairmount never moved to intervene in either case.
bac casino bip co August 17, 2009, the Will County court denied the casinos' section 2-1401 petition in the case concerning the 2006 Racing Act and ordered the Illinois Treasurer to transfer the disputed funds relating to that Act from the protest fund to the Horse Racing Equity Trust Fund.
The casinos have sought a stay of the latter order pending appeal.
In mid-November 2009, the Will County court dismissed the casinos' federal and state constitutional challenges to the 2008 Act.
RICO claim In seeking dismissal of the RICO claim, the Blagojevich defendants argue that they are entitled to legislative immunity for his actions in connection with pending or adopted legislation.
First, the argument that FOB, a campaign fund, is entitled to any sort of immunity from suit is frivolous; FOB cites no authority that supports the argument.
Second, the Illinois Constitution limits the protection of legislative immunity to members of the state legislature.
As the Illinois Supreme Court squarely held in 2004, in rejecting a contention by Blagojevich that he was entitled to legislative immunity from judicial scrutiny of his actions relating to legislation, the doctrine does not apply to the governor.
The Seventh Circuit case on which Blagojevich relies to support his immunity claim concerned members of the state legislature â who are, in fact, entitled to legislative immunity â not the governor.
The arguments by Johnston, Balmoral Park, and Maywood Park the Johnston defendants for dismissing Count 1 concern the sufficiency of the casinos' RICO allegations.
Though it appears from the complaint that the casinos have sued the Johnston defendants both for a substantive RICO violation under and for RICO conspiracy under id.
§ 1962 dthe casinos state in their response to the motion to dismiss that they have sued the Johnston defendants only for RICO conspiracy.
To state a RICO conspiracy claim, the casinos "must allege 1 that each defendant agreed to maintain an interest in or control of an enterprise or to participate in the affairs of an enterprise through a pattern of racketeering activity and 2 that each defendant further agreed that someone would commit at least two predicate acts to accomplish those goals.
One must knowingly agree to perform services of a kind which facilitate the activities of those who are operating the enterprise in an illegal manner.
It is an agreement, not to operate or manage the enterprise, but personally to facilitate the activities of those who do.
The parties dispute the extent to which a RICO conspiracy claim requires the actual existence of a pattern of racketeering activity as that empress casino joliet corp v johnston is defined in.
No matter; the casinos have adequately alleged a pattern, even if the pleading requirement for a pattern on a RICO conspiracy claim under section 1962 d is the same as for a substantive RICO claim under section 1962 c.
Proof of a pattern requires that the predicate criminal acts were related to each other and posed a threat of continuing criminal activity.
The 2008 Racing Act, however, had limited duration.
Given the breadth of the pay-to-play scheme that the casinos allege Blagojevich had instituted, there is a sufficient basis in the complaint for a reasonable inference that the same sort of conduct that the casinos allege took place in 2006 and 2008 would have repeated itself as the clock on the 2008 Racing Act began to wind down.
In short, even the piece of the overall pattern that directly involved the Johnston defendants did not have "a built-in end point.
The Court disagrees with the Johnston defendants' contention that it should disregard the allegations concerning the passage and signature of the 2006 Racing Act because the casinos allege them on information and belief.
The facts in question â involving acts pursuant to a covert criminal scheme â are quite obviously inaccessible to the casinos without discovery, and casinos have not simply alleged the grounds for their suspicions but have supported them with far more than is the norm for parties pleading matters on information and belief.
The alleged predicate acts involved, at a minimum, bribery under Illinois law as well as federal fraud offenses; they occurred over periods of one to two months in 2006 and in 2008; they had multiple victims even if one considers only the four plaintiff casinos and not learn more here other victims of Blagojevich's alleged pay-to-play scheme; and the plaintiffs suffered distinct injuries from the 2006 and 2008 Racing Acts.
The Johnston defendants also argue that the casinos have failed to allege the requisite causation.
The key factor is whether there is "some casino faq ni no relation between the injury asserted and the injurious conduct alleged.
The casinos allege in their complaint that the Johnston defendants conspired with others to make looney toons gameboy game to Blagojevich in return for his agreement to sign, and not veto the two Racing Acts and, perhaps, to importune legislators to vote for one or both of themand that as a result, the Acts were adopted.
That is a sufficient allegation of proximate causation.
The Johnston defendants point out that plaintiffs have not specifically alleged that the Acts were conceived, drafted, or passed by the legislature as a result of the alleged scheme.
Perhaps not though this is not entirely clear concerning the issue of passage of the 2006 Racing Act, see Compl.
¶¶ 24-26but that is not fatal to the allegation of proximate causation.
As the casinos allege, Blagojevich could have vetoed each Act, and if he had done so the legislation would not have taken effect absent a legislative override.
The casinos have sufficiently alleged that their losses were "a foreseeable result" of the defendants' alleged wrongdoing, which is all that is required.
Though a fact finder could draw the opposite inference, the casinos are not required to prove their case in their complaint, and they are entitled to have reasonable inferences drawn in their favor at this early stage of the case.
For these reasons, the Looney toons gameboy game rejects the defendants' arguments for dismissal of the casinos' RICO claim.
The racetracks, which are the defendants named in Count 2, have all moved to dismiss that claim.
The racetracks argue that the constructive trust claim is precluded under either the Rooker-Feldman doctrine or the doctrine of claim preclusion; the Tax Injunction Act divests the Court of jurisdiction to hear the claim; the Court should abstain from considering the claim under the Colorado River doctrine; and the claim is in any event premature.
Rooker-Feldman Defendants argue that the casinos' claim for a constructive trust is barred by the Rooker-Feldman doctrine, which prohibits a federal district court from exercising jurisdiction over a claim seeking review of a state court judgment.
In this case, however, the casinos are not challenging the state courts' rulings regarding the constitutionality of the Racing Acts.
Though this suit, like the state court suits, concerns the two Racing Acts, the Rooker-Feldman doctrine does not stop a district court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court.
The casinos' claims are not barred by the Rooker-Feldman doctrine.
Claim preclusion Defendants argue that the casinos' constructive trust claim is barred by the doctrine of claim preclusion as a result of the judgments entered in the state court litigation over the 2006 Racing Act by the Illinois Supreme Court in the original lawsuit and the Will County court on the section 2-1401 petition.
Under the doctrine of claim preclusion, a final judgment on the merits of an action precludes the parties to that action and their privies from litigating claims that were or could have been raised in that action.
A state court judgment has the same preclusive effect in federal court that it would have in a court of the state in which it was rendered.
The doctrine of claim preclusion prevents plaintiff from bypassing a state court judgment and attempting to relitigate the case in federal court.
In order for claim preclusion to apply under Illinois law, the party arguing preclusion must show that in the earlier suit, there was a final judgment on the merits by a court of competent jurisdiction and that the two suits involve an identity of causes of action and an identity of parties or their privies.
If these requirements are met, the judgment in the earlier suit bars "not only those matters which were actually litigated and resolved in the prior suit, but also any matter which might have been raised in that suit to defeat or sustain the claim or demand.
The racetracks have not shown the requisite identity of the parties.
The casinos did not sue the racetracks in state court.
Rather, because their claims involved the constitutional validity of the two statutes, they sued Illinois governmental authorities.
The racetracks would not have been proper defendants in suits by the casinos over whether the statutes violated federal and Illinois constitutional requirements.
The racetracks have cited no rule of Illinois law that would have required the casinos to join claims against Johnston or the racetracks arising from an alleged criminal fraud scheme in the same case as a constitutional challenge to the Racing Acts filed against the state authorities charged with collecting the this web page required by those Acts.
The racetracks argue that preclusion is appropriate because they intervened in the state court cases.
Some, though not all, of the racetracks sued in this case intervened in the 2006 Racing Act case, and looney toons gameboy game intervened in the al casino wetumpka winn creek Racing Act case.
As the casinos point out, however, Arlington Park, the party whose brief asserts the claim preclusion argument, effectively manufactured the "same parties" argument by intervening in both cases after the present suit was filed.
And Balmoral Park and Maywood Park intervened in the 2008 Racing Act case even later, after they had already filed their motion to dismiss in the present case.
The Court has found no basis in the law for a claim preclusion rule that effectively would permit a party to force preclusion of a suit filed against that party in federal court by intervening in a related state court case.
In any event, even if the racetracks had established all of the requirements for claim preclusion, it would not bar the constructive trust claim against them which derives from the RICO claim.
The claim against the racetracks was not actually resolved in the state court suit, nor could it have been raised in that suit.
The casinos were unaware of click to see more facts underlying their current claims while the suit over the 2006 Racing Act was pending in the state trial court or the Illinois Supreme Court.
Claim preclusion does not apply to claims that a party did not know about and could not have known about at the time of the prior suit.
By the time the casinos filed their section 2-1401 petition to vacate the judgment in the case over the 2006 Racing Act, of course, article source were aware of at least some of the facts underlying their pay-for-play allegations, and they alleged those facts as a basis for https://new-fit.ru/casino/casino-glass-mirror-inc.html the earlier judgment in that case.
But success on that section 2-1401 petition would have done nothing more than reopened the casinos' constitutional challenge to the statute.
A section 2-1401 petition is designed to address facts not part of the record that, if known, would have prevented entry of the original judgment.
It is not a vehicle for asserting entirely new legal claims against different parties.
The racetracks have cited no authority suggesting that an Illinois trial court would have entertained, as part of a section 2-1401 petition like the one the casinos filed in the 2006 case, entirely new claims against parties the petitioner had not sued in the underlying case.
They have failed to show that the current claim is one that the casinos could have brought as part of the section 2-1401 petition.
In any event, under Illinois law regarding claim preclusion, a judgment is not final â and thus not preclusive â until the possibility of appellate review has been exhausted.
That has not yet happened with respect to the denial of the casinos' section 2-1401 petition.
The same nations casino yakima true of the Will County trial court's decision dismissing the casinos' suit over the 2008 Act.
Thus assuming that decision might be claim-preclusive in this case â a question the Court need not decide â the finality requirement of Illinois claim preclusion law has not yet been satisfied.
Tax Injunction Act The racetracks argue that the Tax Injunction Act TIA, divests the Court of jurisdiction over the constructive trust claim.
The TIA provides that "the district courts shall not enjoin, suspend, or restrain the assessment, levy, or collection of any tax under State law where a plain, speedy, and efficient remedy may be had in the courts of such State.
The limitation that the TIA imposes is considered to be jurisdictional in nature.
The revenue collected under the 2006 and 2008 Racing Acts is not referred to in those statutes as a tax.
And it does not operate in the way one ordinarily would understand a tax to operate.
The funds collected under those Acts are passed through to the racetracks within ten days of receipt learn more here the Horse Racing Equity Trust Fund.
The state cannot suquamish casino summer concerts the funds empress casino joliet corp v johnston all.
And the Act particularly benefits one group of entities â the racetracks and owners of racehorses.
The Illinois legislature made findings that the riverboat gaming industry had a negative impact on the Illinois horse racing industry; it determined that the decline of horse racing hurt Illinois residents employed by that industry; and passage of the Acts would create additional jobs.
Act 94-804 § 1 2006.
And the Illinois Supreme Court, in its decision upholding the 2006 Racing Act against the casinos' constitutional challenges, repeatedly referred to the Act as imposing a "tax," and it specifically found that the Act serves a public purpose.
Characterizing the Acts as imposing a tax for TIA purposes is consistent with the standard employed empress casino joliet corp v johnston a majority of circuits, which have held that an assessment is a tax if it "is for revenue raising purposes," regardless of whether the proceeds go to a general fund or are devoted to a more specialized purpose.
The assessments on the casinos raised revenue that the Illinois legislature chose to devote to assisting the Illinois horse racing industry.
Though the question is not free from doubt, the Court concludes that the racetracks have shown that the assessments imposed by the 2006 and 2008 Racing Acts are taxes for purposes of the TIA.
For the TIA to apply, the racetracks must also prove that the casinos seek to "enjoin, suspend, or restrain the assessment, levy, or collection of any tax under State law.
The TIA's purpose is to divest district courts of subject matter jurisdiction when the relief sought "would diminish or encumber state tax revenue.
Although the statute makes specific reference to actions that would affect the assessment, levy, or collection of a tax, it applies to suits seeking a refund of taxes already paid.
The casinos argue that they do not seek to enjoin, suspend, or restrain the tax but rather seek to prevent the racetracks from spending ill-gotten gains from an unlawful conspiracy.
They point out that they are not here contesting the constitutionality of the Racing Acts and are not seeking a refund from the state of Illinois.
The racetracks counter that if the casinos succeed on their constructive trust claim, the money collected under the 2006 and 2008 Racing Acts will de quiniela casino mendoza returned to the casinos, effectively giving them a refund and eliminating the tax.
The TIA withdraws federal jurisdiction not only over direct challenges to state taxes but also over actions that indirectly restrain the assessment, levy, or collection of taxes.
Assets Trust 1995-NP3-1 7th Cir.
The casinos' constructive trust claim poses this kind of indirect challenge to the underlying state tax by seeking, in effect, a refund of the taxes the casinos have paid under the 2006 and 2008 Racing Acts.
Were the casinos to prevail on their constructive trust claim, they would get back the money they paid out under the Racing Acts, and it would be as if the assessments that the Acts impose had never been made.
This constitutes the sort of challenge to a state tax that the TIA withdraws from federal district courts.
A federal court is not divested of jurisdiction over a challenge to a state tax unless there is a "plain, speedy and efficient remedy" available to the click here in state court.
The Supreme Court has held that such a remedy must offer a "full hearing and judicial determination of the controversy.
To qualify, a remedy must include the opportunity to appeal to higher courts and may not preclude preservation or consideration of a plaintiff's federal rights.
The "plain, speedy and efficient remedy" exception, however, is construed narrowly.
The remedy available to a plaintiff need not "the best one conceivable.
A court need only determine that the remedy "meets certain minimal procedural criteria.
A plaintiff objecting to the invocation of the TIA's jurisdictional bar "bears the burden of demonstrating the insufficiency of the remedy available in the state court system.
Defendants argue that the Protest Monies Act provides such a remedy.
It is not clear whether the casinos' challenge would fall within the purview of that statute.
But if the casinos' constructive trust claim constitutes a challenge to the tax imposed by the Racing Acts, as the Court has held, it is beyond dispute that the casinos could bring that claim in state court a state court certainly would be no less able than a federal court to grant the casinos relief on a state-law claim.
Their ability to do so eliminates any possibility that a plain, speedy and efficient state remedy is lacking.
In arguing that state remedies are insufficient, the casinos point to their recent unsuccessful attempt to persuade the Circuit Court of Cook County to freeze the proceeds of the Racing Act assessments pending resolution of the present case.
That misses the point.
The problem appears to have been that the state court believed that any attempt to freeze those funds should be pursued in the same court in which the casinos' underlying challenge was pending â namely, this Court.
The state court's adverse ruling does not suggest that the casinos could not pursue in state court the same constructive trust claim they have asserted empress casino joliet corp v johnston />For these reasons, the Court concludes that it lacks jurisdiction over the casinos' constructive trust claim.
The Court therefore grants the racetracks' motion to dismiss Count 2 of the casinos' complaint.
Because Count 2 forms the sole basis for the casinos' motion for preliminary injunction, the Court denies that motion.
The defendants named in Count looney toons gameboy game are directed to answer that claim on or before January 4, 2010.
On the Court's motion, the dissolution of the temporary restraining order is stayed through the close of business on December 14, 2010, to permit plaintiffs to seek a stay from the court of appeals.
The case is set for a status hearing on January 14, 2010 at 9:30 a.
Get 1 point on providing a valid sentiment to this Citation.
Get 2 points on providing a valid reason for the above change.
Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519 (7th Cir.2011) ( Empress III). Sitting en banc, we rejected the position that the panel had taken with regard to the Tax Injunction Act. Empress Casino Joliet Corp. v. Balmoral Racing Club, 651 F.3d at 726 ( Empress IV).
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Empress Casino Joliet Corp.Balmoral Racing Club, Inc.
Balmoral Racing Club, Inc.
Empress Casino Joliet Corp.
Balmoral Racing Club, Inc.
United States Court of Appeals, Seventh Circuit.
Empress Casino Joliet Corp.
Balmoral Racing Club, Inc.
This appeal pits casinos against racetracks in our circuit's latest encounter with the Blagojevich corruption scandal in Illinois.
§ 1961 et seq.
The racetracks argue on appeal that plaintiffs failed to prove a RICO conspiracy, that the district court erred by allowing plaintiffs to add the state-law claims, and that other asserted errors warrant a new trial.
We first review the factual and procedural background of this case.
Second, we examine the sufficiency of the evidence of an illegal agreement empress casino joliet corp v johnston a pattern of racketeering activity.
Third, we address the late amendment to the complaint to add the state-law claims.
Finally, we examine several claims of trial error.
It turned to state government for help.
In 2006, Illinois enacted H.
This appeal focuses on the racetracks' effort to renew the law in what we call the 2008 Act.
The Johnston family owns several businesses, including shares in the racetrack defendants Maywood Park Trotting Association, Inc.
John Johnston was an executive at the two defendant racetracks and one of the beneficiaries of the family trust that partially owned the tracks.
In May 2007, Johnston hired Alonzo Monk as a lobbyist for the racetracks.
Monk had been a longtime aide to Governor Rod Blagojevich and had served as Blagojevich's chief of staff and campaign manager before starting his own lobbying and consulting business.
Monk worked to renew the 2006 Act's horseracing subsidy that was to sunset.
The primary evidence at issue in this appeal is a series of meetings and phone calls among Johnston, Monk, and Blagojevich.
The federal government recorded many of the calls and conversations during a broader criminal investigation of Blagojevich.
We lay out the details below in our discussion of the sufficiency of evidence.
In broad terms, in April 2008, Johnston met with Blagojevich at the governor's campaign fundraising office.
The two discussed the expiration of the 2006 Act.
At the end of the meeting Blagojevich brought up Johnston's support for his campaign.
There is no evidence that Johnston agreed to make a contribution at that time, and no payment was made then.
That meeting did not succeed in securing the 2006 Act's renewal.
At the end of May 2008, the 2006 Act expired.
A number of conversations followed involving Monk, Johnston, Governor Blagojevich, and his brother Rob.
On November 20, 2008, the legislature passed the 2008 Act, which was presented to Governor Blagojevich on November 24 for his signature.
The governor did not sign immediately, but there followed a number of conversations among Blagojevich, Monk, and Johnston.
As we explain below, on December 3, 2008, according to Monk's testimony, the quid pro quo agreement was pinned down and Johnston committed to make the contribution in return for the governor's signature.
Blagojevich was arrested on December 9.
On December 15, while on pretrial release and before he was impeached and removed from office, he signed the 2008 Act.
Johnston never made the promised contribution.
Monk pled guilty to conspiring with Blagojevich to solicit a bribe from Johnston.
Johnston received immunity from prosecution and testified before a grand empress casino joliet corp v johnston and at Blagojevich's criminal trials.
The casinos alleged that the racetracks had violated 18 U.
§ 1962 d by conspiring to violate RICO.
In 2013, the district court granted summary judgment in favor of the racetracks, concluding that the casinos had not offered evidence sufficient to show that the racetracks' alleged bribes proximately caused the casinos' losses pursuant to the 2006 and 2008 tax legislation.
Empress Casino Joliet Corp.
We affirmed summary judgment regarding the 2006 Act but reversed regarding the 2008 Act.
Empress Casino Joliet Corp.
We held that the racetracks had not presented evidence sufficient to survive summary judgment that campaign contributions to Blagojevich had proximately caused the legislature's passage of the 2006 Act or that the racetracks bribed Blagojevich to sign the 2006 Act.
But on the 2008 Act, we held there was sufficient evidence that the racetracks formed a quid pro quo agreement with Blagojevich that caused him to sign the Act.
In allowing claims on the 2008 Act to go forward, we stressed that the only RICO element we were deciding was the issue of proximate cause, noting in particular that the pattern requirement remained open.
After we reversed summary judgment on the 2008 Act, the district court allowed plaintiffs to amend their complaint, over defendants' objections, to add state-law claims for civil conspiracy and unjust enrichment.
The court also denied defendants' motion for summary judgment focusing on the RICO pattern requirement.
This appeal followed, challenging the sufficiency of the evidence supporting the RICO count and the district court's grant of leave to amend the complaint, and arguing that various alleged errors warrant a new trial.
Sufficiency of the Evidence The racetracks appeal the district court's denial of their Rule 50 b renewed motion for judgment as a matter of law.
They argue that the evidence presented at trial cannot support several aspects of the verdict that they engaged in a racketeering conspiracy in violation of 18 U.
We review de novo the denial of a Rule 50 b motion.
check this out County, 689 F.
The statute defines RICO conspiracy by reference to a direct RICO violation.
United States, 522 U.
Courts have further fleshed out those requirements.
A RICO conspirator need not agree to commit personally two predicate acts in furtherance of the enterprise; rather, he must agree that someone will commit them.
The racetracks argue that a rational jury could not have found from the evidence presented at trial: 1 that they agreed to facilitate a RICO enterprise; 2 that the racetracks made a quid pro quo agreement with Blagojevich; 3 that the racetracks agreed that someone would commit two RICO predicate acts; or 4 that the agreed-on scheme would form a pattern of racketeering activity.
We address these challenges in turn.
The first issue was waived by failure to raise it in the Rule 50 motion.
The evidence supports a finding of a quid pro quo agreement that extended to at least two predicate acts of racketeering, but that evidence does not support a finding of an agreement to engage in a pattern of racketeering activity.
Facilitating a RICO Enterprise The racetracks did not properly preserve for appeal their argument that the evidence did not support a finding that the racetracks agreed to facilitate the Blagojevich racketeering enterprise.
To preserve a sufficiency-of-the-evidence challenge for appeal in a civil case, a party must move for judgment as a matter of law under Federal Rule of Civil Procedure 50 a and renew that motion under Rule 50 b after the jury's verdict.
In their Rule 50 a and b motions, the racetracks challenged the sufficiency of the evidence on the other grounds we address below.
However, the racetracks did not argue in their Rule 50 motions that there was insufficient evidence that they knowingly facilitated the activities of the racketeering enterprise.
To avoid the Rule 50 problem, the racetracks suggest that we review instead whether the district court erred in denying their supplemental motion for summary judgment.
But denial of summary judgment is an interlocutory matter subsumed by a final judgment.
After trial, the summary judgment denial is ancient history and not subject to appeal.
The racetracks argue that, even after the jury has rendered its verdict, we should review the denial of summary judgment as to purely legal issues.
See Lawson, 791 F.
This controversial exception for purely legal issues does not apply here.
The racetracks' argument regarding facilitation challenges the sufficiency of the evidence supporting the jury's verdict, so their failure to raise the argument in Rule 50 a and b motions blocks that particular argument on appeal.
Quid Pro Quo Agreement We proceed to the racetracks' properly preserved challenges to the sufficiency of the evidence supporting the jury's findings of a quid pro quo agreement encompassing at least two predicate acts as part of a pattern of racketeering activity.
The racetracks' liability in this case depends on evidence sufficient to enable a jury to find that there was a quid pro quo agreement.
An agreement forms the core of liability for RICO conspiracy under 18 U.
See Salinas, 522 U.
A quid pro quo agreement to trade a campaign contribution for the governor's signature is the foundation of the casinos' claim for a RICO conspiracy, as well as for their state-law claims for civil conspiracy and unjust enrichment.
The parties presented sufficient evidence at trial to allow a rational jury to find a quid pro quo agreement between Johnston and Blagojevich.
First, ample evidence shows that Monk and Blagojevich communicated to Johnston that Blagojevich would trade his signature on the 2008 Act for a campaign contribution.
Second, the jury could conclude that Johnston agreed to this arrangement on behalf of the racetracks.
The casinos argue that Blagojevich first delivered the message that he was looking for a bribe in an April 2008 meeting.
In that meeting, Johnston met with Blagojevich at the governor's campaign fundraising office.
Among other things, the two discussed the expiration of the 2006 Act.
At the end of the meeting, Blagojevich excellent casino in clarksville tn amusing Johnston that he appreciated Johnston's past support and hoped he would continue his support in the future.
Johnston testified that he did not respond to the comment because he and his father had already decided not to contribute to Blagojevich in 2008.
Blagojevich was looking for in that meeting was a contribution.
United States, 500 U.
Exchanging a campaign contribution for state action, however, is not legal.
Juxtaposing the discussion of the two topics so closely is dangerous, walking close to the edge of thin legal ice.
But the evidence does not show that Johnston agreed to the proposed exchange in that April meeting with Blagojevich.
Later events provide more evidence from which the jury could have found that Johnston agreed to exchange the campaign contribution for the governor's signature sometime in August or September 2008.
Sometime in that period, Blagojevich called Johnston.
Monk's several calls with Robert and Rod Blagojevich in November 2008 reassuring them that Johnston's contribution would be forthcoming provide additional evidence that Johnston had agreed to make the contribution in an unlawful exchange for Blagojevich's support for the 2008 Act.
Still, this evidence was from Monk, not from Johnston.
But when we add in the evidence of events after the legislature passed the 2008 Act, the jury had a solid basis for inferring that Johnston had agreed to a quid pro quo scheme.
On November 24, 2008, the same day the bill was presented to Blagojevich for his signature, Johnston responded to an email chain reporting that the governor would likely sign the 2008 Act before mid-December.
We are going to have to put a stronger bit in his mouth!?!
Further evidence of an illegal quid pro quo agreement came from the events of December 3, 2008, when Monk and Rod Blagojevich met at a Blagojevich campaign office.
Government tapes captured Monk and Blagojevich discussing what to tell Johnston about the timing of the bill signing relative to Johnston's contribution.
Monk initially met with Johnston and Johnston's father, Billy.
The three discussed the 2008 Act and the racetracks' eagerness for Blagojevich to sign it.
There was no talk of a campaign contribution at that point.
After the meeting, Monk asked Johnston to walk him out to the parking lot.
He testified that looney toons gameboy game did not react kindly to the suggestion.
But Monk's very different account of Johnston's reaction provides ample evidence from which a jury could find that Johnston had agreed to the quid pro quo arrangement.
Later that day, Monk called Blagojevich to report the result of the meeting with Johnston.
Monk reported that Johnston said he would make the contribution within two weeks.
Monk declined that offer.
At trial, Monk testified that what he had told Blagojevich about the conversation with Johnston was accurate.
Monk's testimony about the December 3 conversation with Johnston gave the jury sufficient evidence that Blagojevich had proposed a quid pro quo exchange and that Johnston had agreed to it.
I don't think we had an agreement.
Blagojevich was looking for a contribution before the bill would be signed.
The click to see more was entitled to put two and two together.
See United States v.
The evidence, viewed in the light most favorable to the casinos, allowed the jury to find that Blagojevich conditioned his quick signature on the 2008 Act on Johnston's campaign contribution, that Monk communicated that to Johnston, and that Johnston agreed to that arrangement.
The evidence supported the jury's finding of a quid pro quo agreement.
Two Predicate Acts The racetracks next challenge the sufficiency of evidence that they agreed to the commission of two RICO predicate acts.
Liability for a § 1962 c RICO conspiracy requires an agreement that someone conduct an enterprise through a pattern of racketeering activity.
§ 1962 cd ; Salinas v.
United States, learn more here U.
Racketeering activity is defined to include any of a long list of crimes.
A pattern of racketeering activity requires two or more predicate acts.
For here sake of clarity, we analyze the two-predicate-acts requirement in this section and whether those predicate acts were enough to form a pattern in the next section.
A rational jury could find that Johnston committed or agreed to the commission of several RICO predicate acts.
Johnston's agreement to bribe Blagojevich would count.
United States, 504 U.
And agreeing that Blagojevich would commit official misconduct by signing the bill in exchange for a bribe was also an agreed-upon predicate act.
§§ 1343, 1346, 1961 1 B.
Each use of the wires, such as a cellphone call, to arrange the bribe would count, as long as Johnston agreed to it or it was foreseeable in carrying out his agreement.
United States, 561 U.
Using the wires for lobbying and political logrolling is not honest services wire fraud, but arranging and paying a quid pro quo bribe certainly is.
See Blagojevich, 794 F.
It is also possible that the casinos' daily tax payments might have counted as honest services wire fraud.
See Sheneman, 682 F.
Each use of the wires can be an individual count of wire fraud and an individual RICO predicate for the purpose of establishing two predicate acts.
The jury rationally could have found that Johnston agreed to a bribery scheme that would foreseeably include at least two acts of racketeering.
Pattern of Racketeering Activity The casinos run into trouble, however, in showing that the parties agreed to predicate acts forming a pattern of racketeering activity.
§ 1961 5but case law shows that two predicate acts are not always sufficient.
Northwestern Bell Telephone Co.
The predicate acts' relationship is not disputed here.
Our focus is on continuity.
Rather, it is a unique cause of action that is concerned with eradicating organized, long-term, habitual criminal activity.
Continuity limits RICO to schemes meant to exist over a period of time, not one-off crimes.
Here, the agreed predicate acts lacked the requisite in utah state university to form a pattern under either analysis.
Closed-End Continuity The racetracks' scheme does not exhibit closed-end continuity, and the casinos admit that they did not rely at trial on a closed-end argument.
Bank of Waukegan, 804 F.
Harbridge Merchant Services, Inc.
Here, the arrangements for the bribe began no earlier than the April 2008 meeting about the bill at the Friends of Blagojevich office and ended in December 2008, when Blagojevich signed the bill.
One quid pro quo agreement, one planned campaign contribution for one bill, one tax imposed, and acts over at most eight months to arrange the scheme do not show closed-end continuity.
The three-percent tax was also time-limited and does not provide the type of distinct injuries or variety of predicate acts that would form closed-end continuity.
The evidence here does not demonstrate a threat of repetition.
This case is about one quid pro quo agreement to exchange one campaign contribution for Blagojevich's signature on one bill.
Once Go here signed the bill, the scheme was over.
After we affirmed summary judgment on claims regarding the 2006 Act, the evidence of bribery in this trial related only to the 2008 Act.
See Empress That natchez casino closing congratulate III, 763 F.
Lake County, we affirmed summary judgment for defendants on RICO claims alleging that the Lake County Sheriff had cut a towing company's assigned towing area because the owner had supported the sheriff's opponent in an election.
We rejected open-ended continuity because all of the predicate acts alleged related to campaign fundraising from the 1998 election campaign.
We have applied this logic in other cases involving similarly limited criminal schemes.
The plaintiff alleged that Alpha Industries had bribed an employee of another company so that Alpha would be included as a subcontractor in a defense contract.
Alpha paid the bribe in three installments, and there were eleven phone calls and eight letters associated with it.
Although the First Circuit decided Roeder before H.
Waiting Angels Adoption Services, Inc.
RICO does not require more than one scheme, H.
Applying the reasoning from these cases to the Blagojevich-Monk-Johnston bribery agreement in 2008, a reasonable jury could not have found a scheme with open-ended continuity.
No specific threat of repetition existed.
Once the bill was signed, the scheme was at its natural end point, at least on the evidence presented at trial.
The tax payments under the 2008 Act, of course, continued for a limited time after the bill's signing, but that is not source to support open-ended continuity.
The casinos argue that they satisfied the continuity requirement based on the possibility that the racetracks would again employ bribery when the 2008 Act was scheduled to sunset in 2011.
There would be a gubernatorial election in 2010.
No one in 2008 could know who would be governor in 2011, much less whether illegal tactics would be needed or even welcome in securing reenactment in 2011.
The evidence regarding the racetracks' consideration of the 2008 Act's sunset provision does not show any plans to use illegal means to secure renewal.
The racetracks rely on a September 2008 email exchange.
The email exchange shows the racetracks planning to have the 2008 Act run for a longer period so that they could get a replacement act passed before the 2008 Act expired.
Those emails are about the minutiae of drafting the 2008 Act, not a criminal scheme for getting a future bill enacted.
We will need to change page 5, line 10 to reflect repeal effective 3 years after effective date of law.
In 2011 the veto session could end up being later than three years after the effective date.
Then again, that would be a nice problem empress casino joliet corp v johnston have to worry about.
I need to give him a call to discuss.
We are not convinced this is a reasonable reading of this email chain.
The emails reflect the racetracks' awareness that new legislation would be needed in the future and their intent to pursue it.
But that is all the emails show.
There is no indication that the racetracks considered how to get the harvey boomers boomtown casino act through the legislature or how to get the governor to sign it, let alone that they were planning or even contemplating another bribe to an as-yet-unknowable governor or legislators.
The evidence certainly shows that Blagojevich's regular way of conducting business involved bribery.
And Johnston knew about the criminal investigation into Blagojevich by late 2007.
But Blagojevich is not the defendant here.
The question is the scope of what Johnston and the racetracks agreed to.
Monk and Johnston both testified that Johnston was not aware of the various other Blagojevich schemes mentioned at trial.
There is no evidence that Johnston agreed to participate in any corrupt scheme except for the one to have Blagojevich sign the 2008 Act.
A one-time bribe to a corrupt public official is criminal and wrong, but without more it is not enough to prove a pattern of racketeering activity.
This case contrasts with H.
Here, the evidence of unlawful activity related to only the 2008 Act.
The casinos did not present evidence that would allow a reasonable jury to find that the racetracks agreed to conduct their business regularly through quid pro quo bribery or agreed to participate regularly in Blagojevich's larger corrupt scheme through bribery, or that there was a threat of such activity.
It is, of course, possible that the racetracks might have tried to use bribery again in 2011, if Blagojevich had not been removed from office and had run successfully for a third term.
That speculative possibility is not enough to support the jury finding of a conspiracy to engage in a RICO pattern of racketeering activity.
There is insufficient evidence to support a jury finding of a pattern of racketeering activity, so we reverse the district court's denial of the racetracks' Rule 50 b renewed motion for judgment as a matter of law on this issue.
Leave to Amend We next address the racetracks' claim that the district court abused its discretion by allowing the casinos to add state-law claims for civil conspiracy and unjust enrichment to their complaint after we affirmed summary judgment regarding the 2006 Act but let claims regarding the 2008 Act move forward.
Leave to amend pleadings is left to the sound discretion of the district court.
We find no abuse of discretion here.
The amendment was a prompt response to the altered landscape of the case after we affirmed summary judgment on the 2006 Act claims but allowed the 2008 Act claims to go forward.
We issued our ruling on summary judgment on August 15, 2014, in which we signaled there might well be a problem in showing a pattern based on only the 2008 Act.
Empress Casino III, 763 F.
The casinos moved for leave to amend their complaint on October 2, 2014.
We regularly affirm district courts' decisions to deny unduly delayed requests to amend pleadings.
But affirming discretionary denial of leave to amend does not suggest that we would also hold that a court would have abused its discretion in granting leave to amend, even in similar circumstances.
In their appellate briefing on amendment issue, the racetracks have not cited a case in which we reversed a district court's exercise of discretion to grant leave to amend.
Such cases are exceedingly rare.
City of Delphi, 123 F.
As the district court held, since the new state-law claims relied on the same facts as the RICO claim, the amendments did not unfairly prejudice the racetracks.
Both state-law theories, civil conspiracy and unjust enrichment, depended on the quid pro quo agreement between Blagojevich and Johnston, brokered by Monk.
The Illinois civil conspiracy claim was based on the agreement between Johnston and Blagojevich.
Here, the unjust benefits were the payments received as a result of the agreed bribe to sign the 2008 Act.
The racetracks argue that the additional claims unfairly prejudiced them because they were unable to conduct sufficient discovery empress casino joliet corp v johnston a potential unclean hands defense to the unjust enrichment claim.
We are not persuaded.
The district empress casino joliet corp v johnston enforced many of the racetracks' document and deposition requests related to the casinos' lobbying on the 2006 and 2008 Acts.
Blagojevich or to members of or candidates for the Illinois General Assembly between 2005 and 2008.
The racetracks have not demonstrated unfair prejudice here such that we could conclude that the district court abused its discretion in granting leave to amend.
Claims of Trial Error The racetracks also appeal the denial of their Rule 59 motion for a new trial based on several alleged trial errors.
We review the denial of a Rule 59 motion for a new trial for an abuse of discretion.
Wisconsin Dep't of Corrections, 445 F.
We find no abuse of discretion in the district court's conclusion that the alleged errors do not warrant a new trial.
We examine the claims of error in turn.
Evidence of 2002â2007 Campaign Contributions The racetracks argue that the district court erred by admitting evidence of their contributions to Rod Blagojevich from 2002 to 2007 and also erred by not instructing the jury that those contributions were legal.
We review the district court's decision to admit the evidence of the 2002 to 2007 contributions to Blagojevich for abuse of discretion.
We find none here.
See United States v.
The casinos were trying to prove the opposite of a legal contribution.
Plenty of other evidence linked Johnston and Blagojevich, some of it in much more damning fashion.
The district court also gave a proper limiting instruction, which would have mitigated any risk of unfair prejudice.
Absent indications to the contrary, we presume that juries heed limiting instructions.
We also disagree with the racetracks that the district court erred by refusing to instruct the jury that the 2002 to 2007 contributions were legal and not bribes.
It is common for citizens and corporations to donate to political campaigns, and there is nothing illegal about this practice.
The district court did not abuse its discretion in wording the instruction as it did.
Johnston had information that would have incriminated him.
You are not required to draw this inference.
They point out that Johnston testified before the grand jury and in the Blagojevich trials, albeit subject to immunity, and assert that he answered every question casino cashback quidco this case.
The district court 4 aces casino aberdeen not abuse its discretion in giving the adverse inference instruction, which was legally accurate and permissible.
The Fifth Amendment allows adverse inference instructions against parties in civil actions.
Johnston told the jury that he testified before a grand jury and at both of Blagojevich's trials and never refused to answer a question.
He also testified that he had told the jury the same story about the events of December 3, 2008 that he had testified to in the Blagojevich trials and that he did not believe any of his testimony incriminated him.
Johnston's counsel argued to the jury that Johnston had disclosed everything to the government and that there were no adverse casino militar madrid mercadillo to be made.
Reversing course and testifying after invoking the Fifth Amendment privilege does not remove the relevance of a witness's prior silence as one piece of evidence a jury may consider.
City of Chicago, 266 F.
City of Chicago, 513 F.
Johnston's credibility was at the core of this trial.
The jury had to choose between competing accounts from Monk and Johnston.
The jury could properly consider Johnston's invocation of his Fifth Amendment rights and his delay in answering questions.
For example, it would not have been unreasonable to view his initial refusal to answer questions as a tactic to get his story straight before doing so, and his reluctance to be candid about the timing adds support for that interpretation.
Exclusion of Victim Impact Letter The racetracks offered as evidence a victim impact letter the U.
We find no abuse of discretion.
The district court was correct that the letter, if offered to prove that Johnston was a victim rather than a participant, is hearsay, and it had minimal probative value.
Using the letter to prove that Johnston was a victim would be using an out-of-court statement for the truth of the matter asserted.
The fact that the government included Johnston, perhaps just to ensure it did not leave anyone out, in its efforts to comply with the Crime Victims' Rights Act, 18 U.
§ 3771, also offers no evidence of probative value.
Imagine an effort to get around the hearsay problem by calling a prosecutor to testify in the civil case.
The racetracks' lawyers would have asked her whether she believed Johnston was a victim or a participant.
Her answer would have been an opinion, and it would have been based on a set of information different from what the civil jury would hear.
Any fair response to an opinion in either direction would quickly devolve into an argumentative examination that would almost certainly generate more heat than light.
This would not have been a useful contribution to the trial.
In contrast, Johnston's immunity letter was both specific to Johnston and relevant to his actions, as discussed above.
Under the Illinois Constitution, Art.
The racetracks wanted to argue that they should be liable, at most, for the taxes levied in the days between the day Blagojevich signed the 2008 Act and the day the bill would have become law anyway under the 60-day rule.
The judge sustained the casinos' objection because the argument was contrary to the jury instructions.
The district judge did not abuse his discretion in not allowing a closing argument contrary to the jury instructions.
The instructions allowed the jury to consider the 60-day rule with regard to the racetracks' motives.
The defendants may be held liable for any injury proximately caused by the alleged agreement to pay a bribe to Governor Blagojevich regardless of any events that could have happened in the future.
The district court was on solid ground here because the racetracks never mentioned using the 60-day rule in relation to damages in the argument surrounding the 60-day rule's admissibility.
Before trial, the racetracks argued that the 60-day rule was relevant to whether the casinos had carried their burden of showing proximate cause.
When that argument did not work, they argued it was relevant to their lack of motivation to bribe Blagojevich.
They never mentioned damages.
The racetracks now deny that their appellate argument is a challenge to the district court's jury instruction on proximate cause.
They assert that their argument related only to damages stemming from Blagojevich's signature of the 2008 Act, not whether the racetracks' actions caused Blagojevich to sign the 2008 Act.
The racetracks argue that the casinos' injury is easily divisible so that the damages argument does not contradict our previous rejection of the 60-day rule as a bar to proving proximate causation, which the district court cited in its ruling on the motions in limine.
See Empress Casino III, 763 F.
Perhaps these might have been good arguments to make to the district court before trial or while hammering out jury instructions.
Accordingly, we AFFIRM the district court's denial of the Rule 59 motion for a new trial, REVERSE the district court's denial of the racetracks' Rule 50 b renewed motion for judgment as empress casino joliet corp v johnston matter of law as to the RICO count, and REMAND this case for entry of a modified judgment consistent with this opinion.
See also Empress Casino Joliet Corp.
Balmoral Racing Club, Inc.
The casinos have also unsuccessfully challenged the constitutionality of the 2006 and 2008 Acts in state court.
Empress Casino Joliet Corp.
The just click for source judge took a prudent approach by denying summary judgment and allowing the pattern issue to go to the jury.
The issue is fairly debatable, and because Judge Kennelly handled the issue so deftly, we need not order a new trial.
Johnston dismissed his appeal voluntarily after settling with plaintiffs.
In any event, we are satisfied that there was no independent merit to the racetracks' facilitation argument, based on the evidence of the quid pro quo agreement to bribe Blagojevich.
To whatever extent the racetracks seek a new trial on the theory that the casinos in spartanburg sc weight of the evidence was that there was no quid pro quo agreement, we reject that request for the reasons stated in this section.
The racetracks argue on appeal that leave to amend unfairly prejudiced them because it introduced the possibility of punitive damages into the case.
The racetracks did not make this argument to the district court, so it is forfeited.
Even if it were not forfeited, it is unconvincing.
First, this was a civil RICO case in which the defendants already faced the threat of treble damages under 18 U.
Also, the racetracks cite cases affirming denials of leave to amend to add punitive damage claims.
Taylor Machine Works, Inc.
A late attempt to add punitive damages might give a district court a sound basis to deny leave to amend, at least if RICO trebling were not already in the case, but that would not mean the court lacked discretion to allow the amendment.
To the extent the casinos also complain about evidence of Johnston's contributions to former Illinois Governor Jim Edgar, the district court did not abuse its discretion in finding that the racetracks had opened the door to that evidence by attempting to minimize their contributions to Blagojevich.
In this trial, Johnston first testified that he had told the government what he knew before receiving immunity from prosecution.
As Johnston's lawyers admitted the next morning, that was incorrect.
First Johnston received his immunity letter.
Only then did he answer the government's questions.
Johnston's lawyers agreed that he would correct this misstatement in his later testimony.
Yet on redirect examination by the casinos' lawyer, Johnston still stuck to his false story from the previous day.
Finally, after still more questioning, Johnston admitted that he had signed the immunity letter before answering questions.
This sequence could not have reflected well on Johnston's credibility with the jury.
The racetracks point to the Ninth Circuit's statement in Doe ex rel.
The district judge here did so and did not abuse his discretion by giving the adverse-inference instruction.
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ORDER ON MOTIONS IN LIMINE signed by the Honorable Matthew F for Empress Casino Joliet Corporation et al v.Blagojevich et al Filing 321 ORDER ON MOTIONS IN LIMINE signed by the Honorable Matthew F.
Counsel are expected to carefully inform their witnesses regarding the Court's rulings, so as to avoid introduction of evidence that the Court has excluded.
casinos in denver colo JOHNSTON, et al.
The Court held a final pretrial conference on November 25-26, 2014 and heard arguments on the parties' motions in limine.
These motions had previously been the subject learn more here extensive briefing.
This order sets forth the Court's rulings on the motions.
Defendants' motions in limine 1.
Pre-2008 conduct Plaintiffs' claims in this case all turn on a common contention: in 2008, Johnston, who owned or controlled two Illinois horse racing tracks, entered into an agreement to make a contribution to Governor Rod Blagojevich's campaign fund in return for Blagojevich supporting and signing legislation that imposed a tax on certain Illinois casinos and put the funds into a trust for the benefit of the Illinois horse racing industry.
Plaintiffs previously made similar contentions regarding the 2008 Racing Act's predecessor, adopted in 2006.
The Casinos point to a meeting between Johnston and Blagojevich's aide Chris Kelly in 2006 while the Act was stalled in the legislature.
But they provide no evidence that Johnston offered Kelly a bribe in exchange for Governor Blagojevich's signature during that meeting.
The fact that the Racetracks later made campaign contributions cannot, without more, support liability for acts of political corruption.
Following remand, this Court ruled that the Seventh Circuit's determination "precludes reliance on the allegedly illegal conduct involving the 2006 statute to provide RICO predicate acts.
In the same order, however, the Court stated that it "need not and does not address at this point whether evidence about this conduct might be admissible for other purposes.
Defendants have now moved to bar "any evidence of Defendants' conduct relating to the 2006 Act, including Defendants' history of political donations and lobbying efforts, and meetings with Blagojevich fundraiser Christopher Kelly.
In Limine at 2.
The Court grants this motion in part.
First, the Court previously barred plaintiffs from contending that defendants bribed Blagojevich in connection with the 2006 Act.
Second, the upshot of the Seventh Circuit's ruling quoted above is that evidence of defendants' contacts with Kelly relating to the 2006 Act is likewise inadmissible.
Third, the Court reaches the same conclusion regarding evidence of lobbying concerning the 2006 Act; such evidence is excluded.
Nothing about the Seventh Circuit's ruling suggests that nothing that happened prior to 2008 is relevant.
In fact, plaintiffs have persuasively argued that the following pre-2008 evidence is relevant and admissible: - First, the fact that Blagojevich the 2006 Act the day after it was presented to him is admissible.
In 2008, Blagojevich delayed signing the Act.
Plaintiffs contend, with some supporting evidence, that he did so in order to verify that the promised payment was coming in.
The delayed signature is part of the circumstantial evidence that supports plaintiffs' contention regarding the bribery scheme, and the fact that Blagojevich treated the 2008 Act differently from the 2006 Act tends to support the inference that plaintiffs want to draw from the delay.
This evidence does not unfairly prejudice defendants in the least, as it does not bring into play any sort of claim or contention that the 2006 Act's signature or passage was the result of bribery.
This is relevant evidence of a motive on defendants' part to ensure the passage of the 2008 Act.
Again, defendants will not be unfairly prejudiced by this, because there will be no future casino technology or contention that the 2006 Act was adopted as a result of bribery or other improper conduct.
Ultimately, no contribution was made; Blagojevich signed the 2008 Act shortly after he was arrested on criminal charges.
As plaintiffs have argued, the evidence that Johnston had been a major contributor in the past tends to support the notions that he would have agreed to make a significant contribution in 2008 and that Blagojevich and his agents would have sought a significant contribution from Johnston at that time.
As the Court put it during the final pretrial conference, "if we were talking here about somebody who had never made a contribution in the past to the Blagojevich campaign, then, you know, arguably it wouldn't have made any sense for there to have been these conversations about.
The Blagojevich folks were aware that this was somebody who had made significant contributions in the past, which makes it all the more likely that there would have been some attempt to, you know, make a deal for a big contribution in the future.
Contrary to defendants' contention, this is not impermissible "propensity" evidence.
The Plaintiffs' evidence indicates that Johnston had a regular business practiceâto put it another way, a habitâof making significant contributions to Blagojevich during his campaigns for and service as governor.
And there is and will be no suggestion that any of the prior contributions involved a quid pro quo.
The Court is 1 The Court notes that the copy of the chart that it was provided has a "Government Exhibit" sticker on it, indicating that the chart may have been used during one or both of the trials in United States v.
The parties are directed to remove any such references from the exhibits that are to be given or displayed to the jury in the present case.
The Court overrules, however, plaintiffs' request to introduce evidence that the 2006 Act passed the legislature only after the third vote.
They argue this evidence is relevant to show that defendants had reason to be concerned about the legislation's renewal in 2008, thus giving them a motive to agree to a quid pro quo with the governor.
As the Court understands plaintiffs' claims, however, the focus of the case following the Seventh Circuit's decision involves the effort to procure the governor's signature on the legislation, not any effort to procure his assistance in getting the Act adopted by the legislature.
The Court likewise overrules plaintiffs' request to introduce evidence regarding defendants' contributions to former Illinois Governor James Edgar.
These contributions were at a far lower level than their contributions to Blagojevich, and plaintiffs wish to highlight the contrast.
Plaintiffs have not shown, however, that the underlying state of affairs regarding legislation affecting the casino and horse racing industries during Edgar's campaigns or tenure in office was similar to that which existed in 2008.
For this reason, the two time frames are not sufficiently comparable to make the evidence relevant or to give it any significant probative value.
Lastly with regard to the issue of contributions, if state representative Robert Molaro is called to testify by defendants, plaintiffs may introduce evidence of defendants' contributions to his campaign, but solely for the purpose of showing his bias.
If this occurs, defendants will be entitled to a limiting instruction if they request one.
This occurred, it appears, in 2007.
Defendants do not reference this evidence in their motion in limine.
Even though this evidently took place in 2007, it is unquestionably relevant and admissible: during his tenure as a lobbyist for the defendants, Monk had several conversations with Blagojevich regarding the 2008 Act.
Evidence relating to the US v.
Blagojevich criminal case Defendants ask the Court to exclude evidence that was admitted in Blagojevich's criminal case, including the charging documents and the judgment of conviction; the plea agreement and judgment of conviction of Alonzo Monk, who will be called by plaintiffs to testify in the present case; the grant of immunity to Johnston; and various recorded conversations https://new-fit.ru/casino/como-jugar-en-casinos.html transcripts of those conversations.
The Court ruled on these matters orally at the final pretrial conference on November 25 and simply summarizes those rulings here.
Plaintiffs have represented that during his deposition, Monk attested to the accuracy of the recordings and transcripts in question, so it is likely that he will do so at trial and if he balks, his deposition testimony will be admissible for its truth under Federal Rule of Evidence 801 d 1 A.
Defendants object that the conversations are hearsay.
First, there is sufficient evidence to support a finding that Monk, a paid lobbyist for defendants, was acting as their agent during the conversations in question, making his statements admissible against defendants pursuant to Federal Rule of Evidence 801 d 2 D and the statements of the conversations' other 6 participants admissible to put Monk's statements in context.
The recorded conversations may be considered in determining whether the basis for admissibility under this Rule has been shown, see Bourjaily v.
United States, 483 U.
This includes, among other things, Johnston's own statements and other evidence cited by the Seventh Circuit in upholding plaintiffs' claim relating to the 2008 Act.
See Empress Casino Joliet Corp.
The criminal complaint and indictment charging Blagojevich are inadmissible.
Plaintiffs want to introduce them to rebut defendants' assertion that they were, at most, victims of a shakedown, not members of a bribery conspiracy.
Used for this purpose, the charging documents are inadmissible hearsay.
The link is true of the judgment of conviction.
Defendants likewise may not attempt to draw from the criminal charges or judgment against Blagojevich, or from contentions made by the government in the criminal case against him, that they were victims and not willing participants.
The Court also excludes Monk's plea agreementâidentified as an exhibit by plaintiffsâon the basis that the vast majority of its terms are irrelevant and would tend 2 If this were the sole basis for admission of the conversations, a limiting instruction regarding the statements of participants other than Monk might be required.
See United States v.
No such limiting instruction is necessary or appropriate, however, because the conversations are also admissible under Rule 801 d 2 E.
As the Court stated at the pretrial conference, however, plaintiffs may elicit from Monk testimony that he pled guilty to conspiracy to solicit a bribe from defendants and also the outline of the facts to which he admitted.
Defense counsel stated at the pretrial conference that they did not object to testimony by Monk along these lines.
The plea agreement may be used if necessary to refresh Monk's recollection or to impeach him if he does not acknowledge what he agreed to, see id.
Plaintiffs may introduce Johnston's immunity agreement, which he signed in December 2008 in connection with the Blagojevich investigation.
The document includes a statement that Johnston's information may tend to incriminate him, which is relevant for fairly obvious reasons: it is arguably an admission of the claims asserted in this case.
The related issue of the admissibility of Johnston's assertion of the Fifth Amendment is discussed in the next section.
Inference from invocation of Fifth Amendment by Blagojevich and Johnston The Court reaffirms its oral ruling at the final pretrial conference on November 25 that plaintiffs may not introduce evidence regarding Blagojevich's invocation of his Fifth Amendment privilege in connection with his deposition in the present case.
The only conceivable purpose for introducing the questions posed to Blagojevich and his invocation of the privilege is to draw an inference that truthful answers would have established the existence of a bribery conspiracy.
Plaintiffs have offered no basis to draw an inference adverse to defendants from Blagojevich's privilege claim.
And even if 8 this were somehow relevant, the grossly unfair prejudice to defendants would far outweigh the probative value of this evidence.
The Court also reaffirms its oral ruling that plaintiffs may introduce into evidence defendant Johnston's invocationâvia his attorneyâof the Fifth Amendment privilege during the Blagojevich investigation.
Defendants' contention that Johnston never actually invoked the privilege does not pass the straight face test; that is the only way he could have obtained the grant of use immunity under which he testified at Blagojevich's criminal trials.
Johnston's lawyer was acting as Johnston's agent when he advised federal prosecutors that Johnston would claim the privilege, and thus the invocation is properly admissible against Johnston.
Defendants can, of course, introduce into evidence the fact that Johnston testified in Blagojevich's trials and also that he gave a deposition in this case without invoking the privilege.
The Court leaves for later determination how the jury should be instructed regarding its consideration of Johnston's earlier invocation of the privilege.
Newspaper articles Plaintiffs want to introduce news articles reporting statements by Blagojevich that were adverse to the interests of the horse racing industry.
This evidence is relevant; it 3 In Evans v.
City of Chicago, 513 F.
The trial judge allowed them to do so and also excluded evidence of their prior invocation of the privilege.
The Seventh Circuit held that the latter ruling was not an abuse of agree, casino in white cloud michigan are />This, of course, does not amount to a ruling that judge would have acted inappropriately in allowing evidence of the earlier privilege invocation.
Indeed, the Seventh Circuit considered the admissibility of this evidence to be a "closer question.
The court also emphasized that its ruling turned on the standard of review: "the deferential abuse of discretion standard of review we must apply prohibits us from substituting our judgment for the judgment exercised" by the trial judge.
The problem with the evidence is twofold.
First, if offered to show Blagojevich's adverse position, the articles are hearsay, and plaintiffs have offered no viable argument that any exception to the hearsay rule applies.
Second, if offered to show the defendants' state of mindâthat is, their awareness of Blagojevich's public positionâbased on the record as it now stands, plaintiffs are unable to lay the foundation regarding defendants' awareness of these articles.
Thus the Court excludes the evidence, subject to reconsideration if plaintiffs are able to lay a proper foundation on that point.
Plaintiffs' motions in limine 1.
Evidence regarding the 2008 Racing Act's passage motion 3 Plaintiffs have moved to exclude evidence relating to the passage of the 2008 Act by the Illinois legislature.
Rather, plaintiffs' claims focus on obtaining Blagojevich's signature on the legislation.
Defendants want to introduce evidence that "both sides donated to the political candidates of their choice, both sides lobbied the legislature hard, and the 2008 Act only 4 Evidence regarding the passage of the 2006 Act is irrelevant and inadmissible because, given the Seventh Circuit's ruling, plaintiffs cannot assert a claim regarding the passage and adoption of that Act.
For reasons discussed earlier, the Court has authorized the admission, for a very narrow and focused purpose, of evidence regarding the length of time it took Blagojevich to sign the 2006 Act casino rose plant the legislature adopted it.
This does not open the door to admission of the circumstances of the legislature's adoption of the 2006 Act.
In Limine at 15.
Regarding the last of these points, it is obvious that evidence that the legislature adopted the 2008 Act is admissible; plaintiffs do not contend otherwise.
Given the focus of plaintiffs' claims on actions relating to the governor's signature, however, evidence regarding contributions to and lobbying of legislators and legislative candidates does not tend to make any fact at issue on plaintiffs' claims or defendants' defenses any more or less likely.
And even if it is somehow relevant, evidence regarding what was done to get the Act passed by the legislature is marginally probative at best regarding the claim that defendants agreed to bribe Blagojevich to secure his signature on the 2008 Act.
The marginal probative value of this evidence is far outweighed by the amount of trial time that would be spent on issues involving legislative passage if evidence on that subject were admitted, and by the likelihood of confusion if the focus is turned to how the 2008 Act got through the legislature.
For these reasons, the Court excludes evidence regarding the parties' contributions to legislators and their lobbying efforts focused on legislators.
Contrary to defendants' contention, the Court's decision to admit evidence regarding defendants' pre-2008 contributions to Blagojevich does not bring into play evidence regarding the process that led to passage of the 2008 Act.
Defendants say that such evidence, like the evidence regarding pre-2008 contributions to Blagojevich, "explains the Defendants' intent behind their actions in 2008.
But that is not what the Court concluded makes the pre-2008 contributions to Blagojevich admissible.
The Court has already delineated, earlier in this decision, the specific and narrow purpose 11 for which it has admitted that evidence.
See supra at 3.
Defendants also want to introduce evidence that Blagojevich never intended to veto the 2008 Act, irrespective of any contributions by the defendants; that the Act passed with broad legislative support; and that under Illinois law, the Act would have become law if it was not signed or vetoed within sixty days of its passage.
Plaintiffs do not appear to object to the first of these items, see Nov.
The Court also agrees with defendants that evidence regarding the margin of passage of the Act by the legislature is relevant and admissible to show the absence of a motive to agree to bribe the governorâso long as defendants first lay the foundation by showing Johnston's awareness of the fact that the legislation had passed by a wide margin.
As defense counsel argued at the pretrial conference: "It was probably the most popular bill passed in the session.
There was no way Blagojevich was going to veto the bill.
Why would we agree to give him a hundred thousand dollars?
In seeking to exclude this evidence, plaintiffs cite the Seventh Circuit's ruling on appeal regarding the 2008 Act.
Specifically, they rely on the following discussion in that court's decision: Blagojevich's signature on the bill caused the '08 Act to become law.
Under Illinois were baden casino events, bills passed by the General Assembly must be presented to the governor within 30 days.
If the factfinder believes the evidence supporting the Casinos' allegations, it could conclude that the bill was presented to the governor and he signed it in exchange for a lucrative campaign contribution.
Unlike the allegation that the Racetracks bribed the governor to persuade the 150âmember legislature to enact the bill, the '08 Act became law as a direct result of the alleged agreement to trade money for one person's actionâthe governor's 12 signature.
A jury could find that the causal chain between the Racetracks' bribe and the governor's signing of the bill was not broken by any intervening acts of third parties.
Hemi Group, 559 U.
Only the governor had authority to sign the bill into law, and he did so.
It cannot be assumed that a veto-proof majority will hold in the face of an executive veto.
Many legislators, especially those in the governor's party, may hesitate to override a veto even if they originally voted for the bill.
That the '08 Act cleared the General Assembly by a veto-proof majority does not erase the significance of the governor's signature.
If it did, it would be unnecessary to obtain the governor's signature on a bill that passed by veto-proof majorities.
Nor does it matter that the bill would have become law even if Governor Blagojevich had neither signed nor vetoed it.
IV, § 9 b "Any bill not so returned by the Governor within 60 calendar days after it is presented to him shall become law.
RICO claims sound in tort.
The alleged bribery here was an intentional tort.
See Restatement Third of Torts: Apportionment Liability § 12 2000.
Empress Casino Joliet Corp.
The Court reads this passage in the Seventh Circuit's decision as a determination that on the issue of causation, the existence of a purported "veto-proof 13 majority" and the fact that the bill would have become law if Blagojevich had done nothing for 60 days are essentially beside the point, in light of governing principles of tort causation.
This is made clear by the court's unequivocal statement that "innocent alternative causes" do not affect the liability of an intentional tortfeasor.
That does not mean, however, that evidence regarding the margin of passage of the 2008 Act is irrelevant for all purposes.
The Seventh Circuit was not called upon to consider the theory of relevance articulated by defense counsel at the final pretrial conference.
As indicated earlier, the Court concludes that the evidence regarding the margin of passage is relevant and admissible.
Plaintiffs will, however, be entitled to a limiting instruction regarding the purpose for which this evidence is being admitted as well as an instruction at an appropriate time regarding its non-effect on the issue of causation.
The Court reserves judgment regarding the admissibility of evidence about what happens under Illinois law if the governor fails to sign or veto an looney toons gameboy game bill within sixty days.
Given their motive theory casino in oregon relevance, defendants will need to make an offer of proof regarding their awareness of this legal rule.
If defendants can lay the appropriate foundation, this evidence empress casino joliet corp v johnston be admissible on the same basis and with the same limitations this web page the margin-of-passage evidence.
Evidence that the casinos proposed the 3% tax contained in the 2006 and 2008 Act motion 8 Defendants wish to introduce evidence that the proposal for a 3% tax came from the casinos.
It appears that when the proposed legislation that led to the 2006 Act was being considered, there was a meeting or meetings that included representatives of both the casino and horse racing industries and perhaps legislators.
According to defendants, "various ideas were bandied about to try to find agreement on a 14 comprehensive gaming bill," and the idea of a 3% tax evidently was first brought up by representatives of the casinos.
This was offered, apparently, as an alternative to the horse racing tracks' proposal to permit slot machines at race tracks.
This evidence is irrelevant with regard to the claims and defenses that remain in this lawsuit.
Plaintiffs' remaining claims concern Blagojevich's signature on the Act passed by the legislature in 2008, not the process by which that Actâor, more specifically, its 2006 predecessorâwas written.
Evidence regarding the drafting process or what was done to enlist legislative support or get the bill through the legislative is therefore irrelevant.
Put another way, this evidence does not make any fact legitimately at issue in this case more or less likely.
Indeed, despite empress casino joliet corp v johnston argument in their motion that the evidence is irrelevant, see Pls.
In Limine at 25.
Relevance aside, admission of this evidence would lead to a significant diversion of the trial onto a side track with essentially no probative value in return.
The evidence is inadmissible as irrelevant and under Federal Rule of Evidence 403.
Evidence regarding the Casinos' political contributions and lobbying motion 2 Any competent evidence that defendants may have regarding lobbying or contributions by casinos directed at Governor Blagojevich is relevant and admissible.
As indicated, plaintiffs no longer have a claim that defendants' alleged bribery conspiracy involving Blagojevich were aimed at influencing the activities of or vote by the state legislature.
Defendants' contention that evidence about plaintiffs' contributions to legislators "puts in context" defendants' contributions to the governor misses the point, as the Court indicated at the final pretrial conference on November more info />To be relevant, evidence must tend to make more or less likely some fact that "is of consequence in determining the action.
Defendants have identified nothing of the sort regarding plaintiffs' contributions to or lobbying of legislators.
In particular, unlike plaintiffsâwho have offered evidence supporting their quid pro quo claim involving the governorâdefendants have offered empress casino joliet corp v johnston evidence of any improper arrangements vis-Ă vis state legislators.
In any event, the "context" argument is specious.
Again, the claims in this case involve the contention that defendants sought to procure the governor's signature on or commitment to sign the 2008 Act.
Unless the law first passed the legislature, there would be no occasion for the governor to sign it.
In other words, legislative passage of the Act and its signature by the governor are not parallel tracks in a system with separation of legislative and executive powers; the possibility of executive action does not even come into play until the legislative process is over and done with.
For this reason, the contention that evidence of plaintiffs' claimed efforts to influence the actions 16 of the legislature somehow supplies context for evidence about influencing the actions of the executive once the legislation was passed does not hold water.
The Court also overrules defendants' contention that this evidence is somehow relevant to a defense of "unclean hands.
Unclean hands is an equitable defense and thus does not apply.
But even if it did, defendants have offered no basis for a contention that the empress casino joliet corp v johnston political contributions and lobbying efforts directed at legislators involved any sort of misconduct or improper activity, a requirement for a claim of unclean hands.
Testimony by Professor Christopher Mooney motion 1 Plaintiffs have moved to bar testimony by an expert witness offered by defendants, Dr.
Christopher Mooney, a professor of political science at the Link of Illinois.
The general subject of Dr.
B at 3 Mooney report.
In his report, Dr.
In 17 particular, he addresses the following topics: - First, Dr.
Mooney describes what lobbying involves and the general public's misconceptions about it.
Mooney identifies different types of lobbyists corporate management; inhouse lobbyists, and contract lobbyists and how lobbyists of these various types were involved in lobbying in connection with the 2006 and 2008 Racing Acts.
Mooney includes a particularized discussion of two particular contract lobbyists, the aforementioned Alonzo Monk and John Wyma.
Both were former Blagojevich chiefs of staff who, Dr.
Mooney says, "were hired by the Defendants and the Plaintiffs, respectively, to lobby the governor on their behalf.
Mooney discusses at some length defendants' hiring of Monk and Monk's actions in lobbying Blagojevich on the 2008 Racing Act.
He also discusses Wyma, quoting a blog post for information regarding Wyma and his activities.
Mooney concludes that "the types of lobbyists.
Mooney also discusses lobbyist compensation, citing examples from California, Maryland, Florida, and Texas, as well as deposition testimony from a casino representative in this case about payments to lobbyists to monitor gambling legislation 18 in Illinois and deposition testimony from a former Illinois state legislator regarding his earnings as a lobbyist.
Mooney also quotes the previously-mentioned blog post to the effect that Wyma "was reported to at one point be earning more than a million dollars as a lobbyist.
He also makes reference to publicly filed documents regarding compensation for lobbyists hired by race tracks.
Taking all of this information, Dr.
Mooney concludes that the amount of compensation paid to Monk by defendants to lobby on the 2008 Racing Act "was consistent with normal and legitimate see more />Mooney addresses the types of activities engaged in by lobbyists, including monitoring governmental policymaking processes, providing information and analysis to governmental policymakers, meeting with them to communicate their clients' interests, and attempting to "translate" those interests into governmental policy, as well as dealing with legislators during their consideration of proposed laws, entering into coalitions with others who have common interests, and so on.
Mooney also addresses the involvement of the governor in the legislative process itself, as well as the governor's options when a bill is adopted by the legislature, including signature, veto, or no action.
Mooney describes the previously-discussed rule in Illinois that a bill passed by the legislature becomes law if the governor does not sign or veto it within sixty days.
He states that the governor's role in the process gives interested groups "a strong incentive to lobby the governor for their causes.
He goes on to discuss the ways in which lobbyists go about 19 lobbying governors and again states that both sides on the Racing Act hired a former Blagojevich chief of staff to lobby the governor.
Mooney concludes by stating that "the participating of the governor's office, and the lobbying of the governor by both sides, in the legislative fight over the 2006 and 2008 Racing Acts as described in the Case materials were consistent with normal and legitimate practice.
Mooney also discusses at length campaign contributions and their role in politics and policymaking.
He provides examples from California and Illinois regarding the overall amount of spending in gubernatorial elections.
Mooney also discusses, citing publicly filed materials, the amounts and quantity of larger contributions to the Blagojevich campaign and to Blagojevich's election opponents from 2002 through 2008.
He identifies particular contributors of large amountsâFred Krehbiel and James Pritzker, who Dr.
Mooney identifies without a citation in support as "a part owner of Plaintiff Grand Victoria Casino.
Mooney also notes that Illinois law does not impose restrictions on when during or before an election cycle contributions may be made, and he discusses citing publicly available information patterns of when candidates for governor receive contributions.
Mooney opines that "the contributions discussed in the Case materials appear to follow normal and legitimate practice.
Mooney continues by discussing why contributions to candidates for governor tend to be larger than those to candidates for the state legislature.
He further notes that spending on the gubernatorial race increased significantly in 2006 as compared with 2002, and he offers factors to explain this.
Mooney 20 opines that "the campaign contribution activity of both sides in the Case were consistent with normal and legitimate practice.
To be admissible, the testimony of an expert must, as a threshold matter, satisfy the criteria in Federal Rule of Evidence 702: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b the testimony is based on sufficient facts or data; c the testimony is the product of reliable principles and methods; and d the expert has reliably applied the principles and methods to the facts of the case.
Plaintiffs argue that Dr.
Mooney's testimony should be excluded, for several reasons: he draws legal conclusions; his analysis and conclusions are unreliable because he did not consider key facts; his methodology is unreliable; his analysis and conclusions will not assist the trier of fact; and he is not qualified to render his opinions.
Plaintiffs also argue that the unfairly prejudicial effect of Dr.
Mooney's testimony would substantially outweigh its probative value.
The Court's discussion of relevance issues earlier in this decision governs a good deal of the outcome of plaintiffs' motion in limine regarding Dr.
First, evidence regarding the adoption of the 2006 Racing Act is irrelevant and inadmissible, because 21 plaintiffs' claims, given the Seventh Circuit's ruling, do not concern the adoption of that Act.
Second, for the reasons discussed in the three preceding sections of this decision, evidence regarding contributions to and lobbying of legislators is likewise irrelevant and inadmissible.
Even if somehow relevant, the marginal probative value of this evidence would be far outweighed by the significant waste of time and diversion of the jury's attention that would result from allowing Dr.
Mooney's testimony regarding these issues.
The same more info true source Dr.
Mooney's discussion of the governor's role in the legislative processâwhich is inadmissible for the same reasonsâas distinguished from his role as the executive once legislation is passed.
On the latter point, the Court has determined that evidence regarding the previously-discussed 60 day rule is potentially admissible only on the issue of defendants' motive, and then only if defendants lay the necessary foundation as previously described.
See supra at 14.
On the other hand, testimony regarding interest groups and how they advocate their interests, and testimony regarding what lobbyists do is relevant, at least as a general matter.
The activities of defendants' lobbyist Alonzo Monk, as well as defendants' understanding regarding what Monk was doing, are at the core of the claims and defenses in this case.
Mooney notes that members of the general public often have misconceptions regarding the usual activities of lobbyists.
One appropriate function of an expert witness may be to debunk commonly held views.
The Court excludes, however, Dr.
Mooney's opinions that the lobbying activity at issue in this case was consistent with regular, normal, and legitimate practice.
Mooney's deposition establishes that he did not take into account, or ignored, significant 22 evidence that contributes to plaintiffs' entitlement to a trial on their claims that defendants, at least partly acting through Monk, engaged in a scheme to bribe Blagojevichâin particular, the fact that Monk pled guilty to conspiracy to solicit a bribe and Johnston's invocation of the Fifth Amendment.
These significant omissions make Dr.
Mooney's opinions regarding the "legitimacy" of lobbying efforts vis-Ă -vis the governor amount to opinions on an ultimate issue that the jury will have to decide.
Mooney's opinions on these points would be unduly confusing and unfairly prejudicial, in a way that significantly outweighs its probative value.
The reasons include the justmentioned failure to take into account key facts relating to the "legitimacy" of these activities, as well as the fact that the standard Dr.
Mooney applies in these opinionsâ whether certain read more were "legitimate"âis rather vague and is at variance from what the finder of fact is called upon to decide.
Mooney may, within certain limitations, testify regarding compensation paid to lobbyists.
Defendants offer no basis for a conclusion that the information regarding high-end lobbyist compensation that Dr.
Mooney seems to have cherry-picked from states other than Illinois is at all relevant to whether Monk's compensation was within a normal range for Illinois lobbyists.
Mooney may rely in this regard only on information involving Illinois.
In addition, the Court agrees with plaintiffs that Dr.
Mooney may not communicate to the jury the information garnered from the blog post.
This does not preclude defendants from offering other evidence on these points so long as it is otherwise admissible.
In addition, based on evidence cited by plaintiffs regarding Peter Liguori of Hyatt Gaming, see Pls.
Mooney may not communicate to the jury his contention, unsupported by any citation in his report, that Liguori engaged in lobbying regarding the Racing Act.
Mooney also may appropriately testify regarding the amounts of overall and particular contributions to candidates for governor in Illinois, to the extent the testimony is based on publicly filed and thus reasonably reliable data.
Mooney's testimony regarding the 5 Even if the blog post satisfied these criteria, the Court would preclude Dr.
Mooney from communicating its contents to the jury via defendants' examination of him.
The post is otherwise inadmissible hearsay.
In this regard, Dr.
Mooney may testify to just thatâthe amounts of Johnston's contributions and purportedly promised contributions were well within the reported range of contributions to Illinois governors and gubernatorial candidates generally and to Blagojevich in particular.
Mooney took into account.
For this reason, his opinion regarding "legitimacy" would have limited probative value significantly outweighed by its potential for confusion.
Plaintiffs also take issue with Dr.
Mooney's reliance on a contribution by James Pritzker, who he identifies, without a supporting citation, as a part owner of the Grand Victoria Casino.
Absent some reliable foundation for thisâa showing defendants will be required to make in advance of Dr.
Mooney's testimony and outside the jury's presenceâthe Court precludes Dr.
Mooney from communicating this information to the jury.
Finally, to the extent the Court has concluded that Dr.
Mooney may appropriately testify, the Court overrules plaintiffs' objections to his qualifications and methodology.
The record reflects that, with the limitations discussed above, Dr.
Mooney has sufficient specialized knowledge and expertise in the field in question and that he has employed reliable methods in reaching his conclusions.
In motion 4, Plaintiffs contend that their recoverable damages on that claim consist of the amount the defendants received.
For this reason, they ask the Court to exclude evidence of how the proceeds of the casino tax were used.
Defendants contend that plaintiffs' damages for unjust enrichment consist of whatever amounts defendants retained.
Thus they want to put into evidence how the proceeds were allocated.
The Court has reviewed the supplemental authorities offered by the parties at the Court's invitation, but it is not in a position to adjudicate the dispute without further argument.
Counsel should be prepared to present arguments on this issue on Monday, December 1 at 9:45 a.
Plaintiffs' motion in limine 5 concerns defendants' exhibits 34 and 35.
These exhibits show how the proceeds of the 2008 Act were allocated and spent.
Defendants contend these exhibits are relevant on the claim of unjust enrichment, for the reasons just discussed.
Even if defendants end up prevailing on the measure-of-damages issue, the information contained on the bottom half accept. casino victoria really exhibit 34 document number BM-002431 does not appear to spokane tribe first casino Court to be relevant.
The Racing Act evidently required a setaside of sixty percent of the proceeds of the casino tax for a fund for horsemen.
The remaining forty percent was to be used for track expenses.
Defendants essentially contend that they received no benefit and thus plaintiffs are entitled to no damages on the unjust enrichment claimbecause all of the money was spent, and looney toons gameboy game to be spent, for the purposes just mentioned.
The bottom half of exhibit 34 shows the 26 breakdown of the forty percent of the tax proceeds that were used for track-related expenses.
The Court does not see how defendants possibly could be entitled to exclude this portion of the proceeds from any calculation of the benefits defendants link as a result of their allegedly wrongful conduct.
If defendants were able to use the casino tax proceeds to defray track expenses, that freed up other revenues to be used for other purposes, including a return of profits to the tracks' owners.
For this reason, whatever the proper measure of damages fox wood unjust enrichment turns out to be, the Court sees no legitimate basis to allow into evidence the specifics of exactly how the forty percent was spent; it does not appear to be relevant in the least.
With regard to exhibit 35 document number BM-002432the Court will need further explanation of the information described on this exhibit before it can rule on the exhibit's admissibility.
The document's import is not self-evident, and the Court is, frankly, unable to figure it out.
Plaintiffs have also made a late disclosure argument regarding exhibits 34 and 35.
Plaintiffs first asserted their unjust enrichment claim only recently, and defendants disclosed the exhibitsâwhich they say they are offering only on that particular claimâ promptly after plaintiffs were given leave to add the claim.
As the Court stated at the final looney toons gameboy game conference on November 26, the timing of this disclosure is part of the price plaintiffs pay for their rather late addition of the unjust enrichment claim.
Plaintiffs also object that the documents are summaries admissible, if at all, only under Federal Rule of Evidence 1006, and that they have not been provided the underlying documents from which the accuracy of the summaries can be ascertained.
The Court takes defense counsel at their word and thus concludes that non-disclosure of underlying information does not warrant exclusion of this exhibit.
Defendants also represent that they disclosed the documents or information underlying exhibit 34âwhich is a litigationgenerated summaryâroughly contemporaneously with their disclosure of the exhibit itself.
Again, the Court takes defense counsel at their word on this.
If plaintiffs require further information regarding the specifics of exhibit 34, the Court will permit them to take a 30 minute deposition of the witness through whom defendants propose to introduce the exhibit, to be taken outside of trial time on some date before the date of the witness's anticipated testimony.
Letter from prosecutors soliciting a victim impact statement from Shoe casino hammond indiana motion 6 The Court excludes evidence regarding the U.
Attorney's Office solicitation of a "victim impact" letter from Johnston via his counsel.
The only conceivable purpose for this is to show that the government viewed Johnston as a victim.
Indeed, looney toons gameboy game quite candidly concede this web page is why they want the letter and similar evidence introduced.
The government's view on this subject is irrelevant; defendants have offered no viable argument to the contrary.
The Court also notes that the letter's express or implicit characterization of Johnston as a victim is inadmissible hearsay.
Prior lawsuits regarding the casino tax legislation motion 7 Evidence relating to prior state court litigation in which plaintiffs challenged the constitutionality of the Racing Act is irrelevant, and the Court excludes it.
Defendants 28 say that evidence of the state supreme court's ruling upholding the act "rebuts the insinuation that the law itself is somehow wrongful," Defs.
In Limine at 23, but that is a straw man, as plaintiffs are not asserting such a claim in this case.
Admission of this evidence would also lead to a far-flung detour from those matters that are relevant to the claims and defenses in this case.
Defendants also contend that the prior lawsuits "help show bad faith and improper motive in bringing litigation," id.
Conclusion The parties' motions in limine are ruled upon in accordance with this decision.
Counsel are expected to carefully inform their witnesses regarding the Court's rulings, so as to avoid introduction of evidence that the Court has excluded.
These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723, 728 (7th Cir. 2014) ( Empress Casino III ). 1 We held that the racetracks had not presented evidence sufficient to survive summary judgment that campaign contributions to Blagojevich had proximately caused the legislature's passage of the 2006 Act or that the racetracks bribed Blagojevich.
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Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519 (7th Cir. 2011) (Empress III). Sitting en banc, we rejected the position that the panel had taken with regard to the Tax Injunction Act. Empress Casino Joliet Corp. v. Balmoral Racing Club, 651 F.3d at 726 (Empress IV). On remand, the disâ
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View "Empress Casino Joliet Corp. v. Johnston" on Justia Law Posted in: Gaming Law , Government & Administrative Law , Tax Law , White Collar Crime October 2, 2014
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