Robert Blagojevich Charges:

• Wire fraud (Counts 4 and 13) (13 dismissed before case went to jury),
• Conspiracy to commit extortion (Count 21),
• Attempted extortion (Count 22),
• Conspiracy to commit bribery (Count 23).

The RICO charges are the most complex. First, the Government must establish an "enterprise."

The Government is asking the jury to find there was a "Blagojevich Enterprise", made up of Rod Blagojevich, Christopher Kelly, Antoin Rezko, Alonzo Monk, the Office of the Governor of Illinois, and Friends of Blagojevich.

What's an enterprise? According to the Government:

The term “enterprise” can include a group of people and/or legal entities associated together for a common purpose of engaging in a course of conduct. This group may be associated together for purposes that are both legal and illegal.

In considering whether a group is an "enterprise,” you should consider whether it has an ongoing organization or structure, either formal or informal, and whether the various members of the group functioned as a continuing unit.

A group may continue to be an “enterprise” even if it changes membership by gaining or losing members over time.

The government must prove that the group described in the indictment was the “enterprise” charged.... The government must prove the association had some form or structure beyond the minimum necessary to conduct the charged pattern of racketeering.

Assuming the jury finds agrees there was a "Blagojevich Enterprise", in order to find Blago guilty of racketeering, the Government says the jury must also find:

• Blago was associated with the Blagojevich Enterprise;
• Blago knowingly conducted or participated in the conduct of the affairs of the Blagojevich Enterprise through a pattern of racketeering activity, and
• that the activities of the Blagojevich Enterprise affected interstate commerce.

Another concept that's bound to be confusing for the jury: What's a "pattern of racketeering activity?" According to the Government, it must prove:

Rod Blagojevich committed or caused another person to commit at least two racketeering acts described in Count 1, and that those acts were in some way related to each other.(continuity between them)

...Although a pattern of racketeering activity must consist of two or more acts, deciding that two such acts were committed, by itself, may not be enough for you to find that a pattern exists.

Acts are related to each other if they are not isolated events, that is, if they have similar purposes, or results, or participants, or victims, or are committed a similar way, or have other similar distinguishing characteristics.

There is continuity between acts if, for example, they are ongoing over a substantial period, or if they are part of the regular way some entity does business or conducts its affairs.

The government need not prove that all the acts described in Count 1 were committed, but you must unanimously agree as to which two or more racketeering acts defendant Rod Blagojevich committed or caused to be committed in order to find defendant Rod Blagojevich guilty of Count 1.

What are the racketeering acts he's charged with?

• Count 1 consists of multiple acts involving bribery, wire fraud, and extortion.
• Defendant Rod Blagojevich is also charged in separate counts with violations of the federal wire fraud statutes (Counts 3 through 13),
• and with violations of the federal extortion statute (Counts 14, 15, 17, 19, 21 and 22).
• Defendant Robert Blagojevich is also charged in separate counts with violations of the federal wire fraud statutes (Counts 4 and 13), and with violations of the federal extortion statute (Counts 21 and 22).

As if that's not confusing enough, Blago is also charged with conspiracy to commit racketeering (Count 2). How does that differ? According to the Government, it must prove:

• First, that defendant Rod Blagojevich knowingly conspired to conduct or participate in the affairs of the Blagojevich Enterprise through a pattern of racketeering activity as described in Count 2;
• Second, that Rod Blagojevich, Christopher Kelly, Antoin Rezko, Alonzo Monk, the Office of the Governor of Illinois, and Friends of Blagojevich (referred to in the indictment collectively as the “Blagojevich Enterprise”) were an enterprise;
• Third, that the activities of the Blagojevich Enterprise would affect interstate commerce.

As to the interstate commerce element, the Government defines it as:

Interstate commerce includes the movement of money, goods, services or persons from one state to another. This would include the purchase or sale of goods or supplies from outside Illinois, the use of interstate mail or wire facilities, or the causing of any of those things.

The Government says it must show either:

(a) that the Blagojevich Enterprise made, purchased, sold or moved goods or services that had their origin or destination outside Illinois, or (b) that the actions of the Blagojevich Enterprise affected in any degree the movement of money, goods or services across state lines

The other crimes are simpler to understand. The defense is unlikely to agree with these definitions, but according to Blago's attorney yesterday, the Judge accepted all but one of the Government's instructions so far:

Wire Fraud (charged in Counts 3 through 13,and in Count 1, Racketeering acts 3[c];, 4[c];, 6(d), 6(e), 6(f), 6(g), 6(h), 6(i), 6(j), 6(k), and 6(l))

• First, that the defendant knowingly devised or participated in a scheme to defraud the public of its right to the honest services of Rod Blagojevich, John Harris, or Alonzo Monk by demanding, soliciting, seeking, or asking for a bribe, or by agreeing to accept a bribe, in the manner described in the particular Count or Racketeering Act you are considering;
• Second, that the defendant did so knowingly and with the intent to defraud; and
• Third, that for the purpose of carrying out the scheme or attempting to do so, the defendant used or caused the use of interstate wire communications to take place in the manner charged in the particular Count or Racketeering Act you are considering.

What's a "scheme to defraud"? In this case, the "scheme to defraud" is a scheme Blago devised or participated in to " defraud the public of its right to the honest services of Rod Blagojevich, John Harris, or Alonzo Monk."

A scheme to defraud citizens of their right to a public official’s honest services is a plan or course of action in which the public official schemes to violate his fiduciary duty to the public by demanding, soliciting, seeking, or asking for a bribe, or by agreeing to accept a bribe.

What's Blago's fiduciary duty to the public? The Government says all public officials owe a fiduciary duty to the public, and in this case:

As officials and employees of the State of Illinois, Rod Blagojevich, John Harris, and Alonzo Monk were public officials who owed a duty of honest services to the people of the State of Illinois....

To owe a fiduciary duty to the public means that the official has a duty of honesty and loyalty to act in the public’s interest, not for his own enrichment.

When a public official devises or participates in a bribe scheme, he violates the public’s right to his honest services. The public is defrauded or deceived because the public is not receiving what it expects, namely, the public official’s honest services.

In order to prove this charge, the Government says:

In considering whether the government has proven a scheme to defraud, it is essential that one or more of the acts charged in the portions of the indictment describing the scheme be proved, establishing the existence of the scheme beyond a reasonable doubt. However, the government is not required to prove all of them.

Also:

...In order for the government to demonstrate a scheme to defraud the public of its right to the honest services of a public official, only one participant in such scheme must owe a duty of honest services to the public.

Accordingly, a defendant who schemes with a public official or employee to deprive the public of its right to that public official’s or employee’s honest services may be guilty of a scheme to defraud the public of its right to honest services, provided all the elements of the offense as set forth in these instructions are met.

The big issue here will be Blago's intent. Did he have the intent to defraud? According to the Government:

The phrase “intent to defraud” means that the acts charged were done knowingly with the intent to deceive or cheat the public in order to deprive the public of the defendant’s honest services through bribery.

What about financial gain or loss? The Government says:

In order to prove a scheme to defraud, the government does not have to prove that the defendant contemplated actual or foreseeable financial loss to the victims of the scheme. The wire fraud statute can be violated whether or not there is any actual financial loss or damage to the victim of the crime or actual financial gain to the defendant.

The Government also acknowledges the scheme to defraud must include "a material misrepresentation, false statement, false pretense, or concealment of fact.

A misrepresentation, false statement, false pretense, or concealment is “material” if it has a natural tendency to influence, or is capable of influencing, a decision or action of the public. It is not necessary that the misrepresentation, false statement, false pretense, or concealment actually have that influence or be relied on by the public, so long as it had the potential or capability to do so.

On to Bribery: (charged in Count 1, Racketeering Act 1(b)): The Government says it must prove:

• First, that the defendant agreed to accept any property or personal advantage; and
• Second, that the defendant did so knowing that the property or personal advantage was tendered or promised with intent to cause him to influence the performance of any act related to his employment or function as a public officer.

The bribery definitions are going to be very important. The Government says:

Bribery committed by a public official is the demanding, soliciting,seeking, or asking for, directly or indirectly, or agreeing to accept, anything of value from another person in exchange for a promise for, or performance of, an official act.

The term “anything of value” includes money, property, and employment....The term “anything of value” includes campaign contributions and potential salaries.

....An official act is any decision or action on any question which may at any time be pending, or which may by law be brought before the public official in his official capacity or in his position of trust.

It is not necessary that the public official had the power to or did perform the act for which he was promised, or which he agreed to receive, something of value; it is sufficient if the matter was one that was before him in his official capacity.

Nor is it necessary that the public official in fact intended to perform the official act. It is sufficient if the public official knew that the thing of value was offered with the intent to exchange the thing of value for the performance of the official act.

As to campaign contributions, the Government says:

An elected official’s demanding, soliciting, seeking, or asking for, directly or indirectly, or agreeing to accept a campaign contribution, by itself, does not constitute bribery, even if the person making the contribution has business pending before the official.

However, if a public official demands, solicits, seeks, or asks for, directly or indirectly, or agrees to accept money or property, believing that it would be given in exchange for a specific requested exercise of his official power, he has committed bribery, even if the money or property is to be given to the official in the form of a campaign contribution.

The Government also wants the jury to instructed there doesn't need to be a due date:

Bribery can be committed when the public official solicits or accepts a benefit or benefits with the understanding that, in exchange for a specific requested exercise of his official power, the public official will exercise the
influence of his position or decision-making to the benefit of the bribe payor as specific opportunities arise.

Also, according to the Government:

A defendant may act corruptly even if he is only partially motivated by the expectation or desire for reward.

...It is not necessary that the defendant’s solicitation or demand for thing of value in exchange for influence or reward with respect to state business be stated in express terms.

I'm out of time, and I still have extortion, false statements and aiding and abetting to cover. The aiding and abetting is going to very important for Robert Blagojevich. The penalties for aiding and abetting are the same as the penalties for the crime one aided and abetted. To be continued....