crundwell case: motion to dismiss state charges

7/29/2019 Crundwell case: Motion to Dismiss State Charges

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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUITLEE COUN TY, ILLINOISPEOPLE OF THE STATE OF ILLINOIS,Plaintiff,

V s. No.2 CF 167RITA A. CRUNDWELL,Defendant. MOTION TO DISMISS F E S 2 0 7013 224:644,41 40,"-ilreellivrreineurreke n i fNow comes Defendant, by her attorney, Robert J. Thompson, Lee County PublicDefender, and mo ves the Co urt to Dismiss all counts of the Indictment filed herein and, insupport of which, states,

1. The Defend ant is charged with 60 counts of Class X The ft of governmental property inexcess of One Hundred Thousand Dollars ($100,000.00) on numerous specific occasionsbetween January 19, 2010 and A pril 16, 2012 , inclusive.

2. Pursuant to 725 ILCS 5/114-1(a)(2),(a) Upon the w ritten mo tion of the defendant m ade prior to trial before or after a pleahas been en tered the court may dismiss the indictment, information or complaintupon any of the following grounds:

(2)he prosecution of the offens e is barred by Sections 3-3 through 3-8 of theCriminal Code o f 1961, as heretofore and hereafter amend ed.3. Section 3-4 of the Criminal Code states,(a) A prosecution is barred if the defendant was form erly prosecuted for the sameoffense, based upo n the same facts, if that former prosecution:(1)esulted in either a co nviction or an acquittal or in a de terminationthat the evidence was insufficient to warrant a conviction;


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(c) A prosecution is barred if the defendant was form erly prosecuted in a DistrictCourt of the U nited States or in a sister state for an offense that is within theconcurrent jurisdiction o f this State, if that former prosecution:(1)esulted in either a conviction or an acquittal, and the subse quentprosecution is for the same condu ct, unless each prosecution requiresproof of a fact not required in the other prosecution, or the offense w as notconsummated when the former trial began.The D efendant contend s that Illinois' collateral estoppel statute applies in the instant matter,specifically sections 3-4 (a) (1) and (c) (1), and that pursuant to this s tatute further prose cution

must be barred.4. The D efendant has entered into a Plea A greemen t in the Northern District of Illinois

United States District Court, Case Number 12 CR 50027, in which Defendant was sentenced to235 months in Federal prison on a conviction of Wire Fraud. This sentence was ordered onFebruary 14, 2013. That Plea Agreement, which was entered November 14, 2012, states that theDefendan t "from at least as early as Decembe r 18, 1990, and continuing to April 17,2012...knowingly devised and intended to devise a scheme to defraud and obtain more than$53,000,000 from the City of Dixon, Illinois..."

5. The Plea A greement and co nviction in Federal court includes all acts and dates that arecontained within the State's Bill of Indictment in the instant matter. The State's indictmentcharges Class X Theft of governmental property in excess of One Hundred Thousand Dollars($100,000.00) on numerous specific occasions between January 19, 2010 and April 16, 2012.The Fede ral matter covers these dates and m ore in charging Defendant with defrauding the Cityof Dixon from at least as early as Decembe r 18, 1990, and continuing to April 17, 2012 .


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In the course of entering the Federal plea agreement on November 14, 2012, theHono rable Philip G. Reinhard, U.S. District Judge presiding over the Fed eral indictment, didinquire,

"Is any of the stipulated cond uct or relevant conduct a part of the allegations in the stateproceeding?"The Fede ral prosecutor replied,

"I believe that all the counts o f theft that are alleged against her in Lee C ounty are thesame co nduct that is alleged to have occurred througho ut the scheme o f fraud in thiscase."The Court continued,

"But that conduct you 're going to ask that I consider ultimately if she pleads guilty in thesentencing in this case. Is that correct or not?"The prosecutor,

"It's all...the scheme to defraud encompasses all the money she took. They've allegedthat she took a porition of that money, so ultimately, I guess, yes." (Portion ofNovember 14, 2012 transcript attached as Exhibit A).

6. Section 3-4 of the Illinois Criminal Code prohibits any prosecution by the State'sAttorney if facts necessary to conv ict have been conclusively determined by a prior prosecution.The D efendant has be en indicted in Federal court for all acts contained in the State's indictment.The Defendant has pleaded guilty to those acts and the Defendant has been sentenced for thoseacts in Federal court. Furthermore, the Federal prosecutor and the judge presiding over theFederal indictment have com mented o n record that the acts alleged in the Federal case are oneand the same w ith the acts alleged in the state case.his is collateral estoppel. Collateralestoppel is a requirement of due proces s, and it is a part of the Fifth Amend ment's guaranteeagainst double jeopardy. Ashe v. Swenson, 397 U.S. 436 (1970).


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7. The do ctrine of collateral estoppel, which bars relitigation of a decided que stion,applies to criminal as well as civil proceedings . People v. Grayson, 58 I11.2d 260; People v.Armstrong, 56 I11.2d 159; People v. Haran, 27 I1l.2d 229, 232. This was also noted in Ashe v.Swenson, 397 U .S. 436, 25 L.Ed.2d 46 9, 475, 90 S.Ct. 1189, where, in the course of describingthe doctrine, the United States Supreme Court said:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely importantprinciple in our adversary system of justice. It means s imply that whe n an issue ofu ltimate fact has once be en de ter mined by a valid and final judgme nt, that issu ecannot again be litigated be twee n the same par ties in any fu tur e lawsu it. Althoughfirst developed in civil litigation, collateral estoppel has been an established rule ofFederal criminal law at least since this Cou rt's decision m ore than 50 years ago inUnited States v. Oppenheimer, 242 U.S. 85,161 L.Ed. 161, 37 S.Ct. 68, 3 A.L.R.5161.' As cited by, People v. Borchers, 67 I11.2d 578, 367 N.E.2d 955 (1977).(Emphasis supplied).Wh ere the state and federal laws are framed to protect the same social interests, and where

federal and state government prosecutions o f a criminal act coincide, then prosecution by o nesovereignty satisfies the need of the other. See People v. Cooper, 398 Mich. 450, 247 N.W.2d866 (1976).

8. In the instant matter we are presented with a competent adjudication of the Federal casewhich was p roperly presented and w hich is conclusive of the state's case by collateral estoppel.The "issue o f ultimate fact," whether Defe ndant had the intent to defraud and deprive the City ofDixon permanently of its money, has been decided. Further, both the state and federal lawsunder which the Defendant has been charged are framed to protect the same social interests andthe federal prosecution has fully addressed pun ishmen t, deterrence and restitution therebysatisfying the state's sove reignty requirements.

9. Shou ld the State choose to argue that the cases are different, its only choice is to rely onthe difference in the names of the charges thems elves and the fact that the federal case requires a


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showing of the use of wire transmission where the state case doesn't. This position ignores theissue of ultimate fact. The Federal indictment charges Wire Fraud and the state indictmentcharges Theft. The only issue is the Defendant's intent. In the federal case, the Defendant'sintent is presented as to whether she had a scheme and intent to defraud the City of Dixon. Inthe State case, it is presented as to w hether she had the w rongful intent to deprive the City ofDixon permanently of the use and benefit of its money. The issue of ultimate fact is the same.

"The Fede ral decisions have m ade clear that the rule of collateral estoppel in criminalcases is not to be ap plied with the hypertechnical and archaic approach of a 19th centurypleading book, but with realism and rationality. . ." Sealfon v. United States, 332 U.S. 575, 579(1948). "Any test more technically restrictive would, of course, simply amount to a rejection ofthe rule of collateral estoppel in criminal proceedings ..." Ashe v. Swenson, 397 U.S. 436, 25L.Ed. 2d 469 , 90 S.Ct. 11189 (1970 ), followed by , Illinois Supreme C ourt in, People v. Bo rchers,67 I11.2d 578, 367 N.E.2d 955 (1977). While the pleading books in federal court may lookdifferent from tho se in state court, the Defendant is charged with the sam e ultimate conduct ofstealing from the City of Dixon in both courts.

10. In Peo ple v. Bo rchers, a case strikingly similar to the instant matter, the De fendant, agovernm ent employe e, was charged with Mail Fraud in federal court and Theft in state court.As a n Illinois State Representative, Mr. Borchers had executed two vouchers for payment ofsecretarial services for a shared secretary whom he had no intentions of paying. When thepayme nts on the vouchers we re delivered, the secretary signed them and turned them into heremployer, who was a co-defendant of Borchers. The defendant and the co-defendant shared inthe mon ey obtained for the secretarial services that were invoiced but which they did no t earn.In Nove mber of 197 4, both individuals were charged in Federal court with Mail Fraud by using


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the mails in furtherance of a scheme to defraud. 67 Ill.2d 578, 367 N.E.2d 955 (1977).After Represe ntative Borchers' Federal trial, the Sangamon County State's Attorney

charged him by indictment with Theft in April of 1975. Borchers was found guilty after a trialin the State court.

Reversing the State court conviction of Representative Borchers, the Illinois SupremeCourt agreed w ith the Defendant in that "the only contested issue in bo th trials was wh ether[Borchers] had the required criminal intent. In the Federal trial the question was wh ether he hada schem e and intent to de fraud the State of Illinois...and in the State trial the que stion waswhether he had the wrongful intent to deprive the State of Illinois permanently of the use an dbenefit of the money." Id. The Court did not grant any consideration to the fact that MailFraud has an elem ent of proof, the use of the m ail, that wasn't present in the state's Theft case,which did not require a showing of the use of the mail.

The Illinois Supreme C ourt further agreed that the evidence presented in each prosecutionon the issue o f intent was the same an d that the fraudulent intent that had to be show n in bothcases was the same. In other words, since the verdict in the Federal prosecution decided theissue of fraudulent intent, the issue was also se ttled so far as the State prosecution wou ld beconcerned, and thus the State was barred from prosecuting further. Finally, the issue of usingthe mail in the federal case versus using dece ptive techniques in the State case was deeme dhypertechnical. Id.

In distinguishing Borchers from the instant m atter, the State may as sert a traditionalargument of co llateral estoppel that requires disposition of an ultimate issue in favor of thedefendant before the doctrine can be applied to the defendant's benefit in a subseque ntprosecution. In other words, that because Mr. Borchers was acquitted in federal court, then the


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issue of intent had been d ecided and co uldn't be litigated again und er Illinois' collateral estoppelstatute, and that Ms. C rundwell's conviction in federal court disqualifies her from a collateralestoppel argument. However, the statute doesn't read that way. The fact that Ms. Crundwellwas convicted in federal court applies specifically in the application of Section 3-4. The Courtneed on ly look at the plain language of the statute to determine that the instant matter is alsosubject to dismissal by estoppel. Both subsections of Section 3-4 relied upon herein state thatthe when the fo rmer prosecution "resulted in either a conviction or an acquittal" then thecollateral estoppel statute applies when the defendant meets the other criteria listed. TheDefendan t meets criteria for both subs ections (a) (1) and (c) (1).

11. The fact pattern in Borchers is analogous to the instant matter. Here, the federalquestion is whether M s. Crundwe ll had the required criminal intent to scheme and defraud theCity of Dixon, and in the state case the qu estion is whether she had the wrong ful intent todeprive the City of Dixon permanently of the use and benefit of its money. Both issues aretreated the same unde r Section 3-4 of the Criminal Co de in that the prosecution in the State caseshould be barred since it is for the same con duct and follows a previous prosecu tion for the sameoffense.

12. Ms . Crundwell is charged with W ire Fraud in Federal court and Theft in state court.The difference between the de fendant in Borchers and the Defen dant in the instant matter, otherthan Borchers fede ral acquittal, is M s. Crundw ell is charged with Wire Fraud and not M ailFraud, as was Mr. Borchers. This is of no consequence. "The wire fraud statute is identical tothe mail fraud statute except that it speaks o f comm unications transmitted by wire." UnitedStates v. Frey, 42 F.3d 795, 797 (3d Cir. 1994).


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The issue taken from M s. Crundwell's separate indictments is whether she had therequired criminal intent to defraud and deprive the C ity of Dixon perm anently of the use andbenefit of its money. It is hypertechnical to argue that the issue is divided between the twocourts because one prosecution accuses Ms. Crundwell of defrauding by wire and the otheraccuses her of defrauding by exercising unauthorized control over the city's property. Thefraudulent intent that must be show n in both cases remains the same an d the state's subseq uentprosecution is for the same offense as the federal prosecution.

In finding that collateral estoppel barred further prosecution of the defen dant in Borchers,our Suprem e Cou rt stated, "it can be said here that the two records, excepting, of course, proof ofuse of the mails, are nearly interchangeable... With a few minor exceptions the testimon y [wouldbe] the same ... Viewing the q uestions realistically and set in a practical frame we consider thatthe questions were the same." 67 I11.2d 578, 367 N.E.2d 955 (1977).

Cons equently, the record of the Defendant's Plea Agreement in Federal court can only beconstrued as interchangeable with the facts the State alleges and hopes to p rove in the State'scase, which is the subsequen t prosecution. Per the federal prosecutor in response to inquiry bythe court, "...all the counts o f theft that are alleged ag ainst her in Lee C ounty are the s ameconduct that is alleged to have occurred througho ut the schem e of fraud in [the federal] case."V iewing this matter "realistically and set in a practical frame" the questions to be presented ineither case would have to be cons idered the same, just as they were in People v. Borchers.

13. Relying on the analysis above and applying Section 3-4 of the Criminal Code,this court should dismiss the State indictment on statutory grounds. Additionally, and under thesame an alysis above, the defendan t's indictment in the state case is subject to dism issal ongrounds of Double Jeopardy under the Fifth Amendment to the United States Constitution and


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Article I, Section 10 of the Constitution of the State of Illinois. "The question is no longerwhether collateral estoppel is a requirement of du e process, but w hether it is a part of the FifthAmendment's guarantee against double jeopardy." Ashe v. Swenson, 397 U.S. 436 (1970). Inanswering that question, the U.S. Suprem e Court stated, "We do no t hesitate to hold that it is."Id. The Fourteenth Amendment imposes on the States the standards of the Double JeopardyClause of the Fifth Amendment, Benton v. Maryland, 395 U.S. 784 (1969), and because theDoub le Jeopardy Clause incorpo rates collateral estoppel as a constitutional requireme nt, thestate's indictment in the instant matter should be dismissed un der the argument presented.

WHE REFOR E, the Defendant respectfully m oves this Court to Dismiss the S tate'sIndictment.

Respectfully submitted,

Robert J. ThompsonAttorney for Defendant

Robert J. ThompsonLee County Public Defender309 South Galena AvenueDixon, IL 61021815-284-5239


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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOISWESTERNIVISION.

UNITED STATES OF AMERICA, ))

Docketo,2R 50027Plaintiff,v . ))) Rockford,llinoisWednesday,ovember9:00'clock.m. 14,)RITA A.RUNDWELL, ))Defendant. )

I2012

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REPORT OF PROCEEDINGSBEFORE THE HONORABLE PHILIP G. REINHARD

APPEARANCES:For the Government: HON. GARY S. SHAPIRO

Acting United States Attorney(327 S. Church Street,Rockford, IL 61101) byMR. JOSEPH C. PEDERSENMR. SCOTT PACCAGNINIAssistant U.S. Attorneys

For the Defendant:R. PAUL E. GAZIANOMS. KRISTIN J. CARPENTERFederal Defender Program(202 W. State Street,Suite 600Rockford, Illinois 61101)

Also Present:S. TRACI FEGREPretrial ServicesCourt Reporter:usan G. Bloom7757 Somerset Drive,Marengo, Illinois0152(815) 923-4 104123456789101 11213141516171819202 122

2324250

Susan G. Bloom, CSR (815) 923-41 04


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THE CLERK:2 CR 50027, USA v. RitaCrundwell.

MR, PEDERSEN: Good morning, Your Honor. JoePedersen and Scott Paccagnini on behalf of the UnitedStates.

THE COURT: Good morning.MR. GAZIANO:ood morning, Your Honor,aul

Gaziano and Kristin Carpenter of the Federal DefenderProgram here on behalf of Ms. Crundwell, who standsto my right.

THE COURT:ll right.ood morning.This matter is set for a status, and Isee a plea agreement on my desk, and there was one onmy, a draft on my desk this morning when I returnedfrom vacation, so I presume that that's what's going

to happen. The matter is going to be a plea ofguilty this morning.

MR. PEDERSEN: That's correct, pursuant tothe plea agreement.

THE COURT: All right.ow, I know theMarshals Office has said something to people who'vecome in to attend this proceeding, make sure thatthere's no device that anyone has that's on to recordor to record any of the proceedings or to photographor video any part of the proceedings.n addition,0 23456789101 11213141516171819202 122232425 Susan G. Bloom, CSR (815) 923-4104


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all cell phones must be turned off.don't want tobe interrupted during the course of this proceeding.So, with that, people have been warned, and theMarshals Office will take appropriate action ifsomething happens in contrary to my order.

Bear with me just a minute.haven'tbeen here for a couple weeks, and so I have to getmaterials before me relating to this matter.(Brief pause.)

THE COURT:ll right.'m ready to proceed.This is her first appearance on thecriminal matter before me?think it is.MR. GAZIANO: Actually, I think we had anappearance back in -- well, that was --THE COURT:t could have been on the civil

end of it,So, you are Rita Crundwell; is that

correct?DEFENDANT CRUNDWELL: Yes, Your Honor.THE COURT: This matter has been set today

for a plea of guilty, if that's what you choose to doin this case.just want to make sure before Istart the plea proceeding that that's what you intendto do this morning; is that correct?

DEFENDANT CRUNDWELL: Yes, Your Honor.

Susan G. Bloom, CSR (815) 923-4104


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1HE COURT: You have discussed this, I would2resume, thoroughly with your lawyers in the case?3EFENDANT CRUNDWELL: Yes,4HE COURT: And this also includes a5orfeiture allegation in the indictment, and that6orfeiture allegation would be admitted as well; is7hat correct?8EFENDANT CRUNDWELL: Yes, Your Honor.9HE COURT: I have looked over the draft plea

10greement that had been placed on my desk this1 1orning, and I have a couple questions before we12roceed with the normal plea proceeding.13irst of all, I'll address Mr. Pedersen,14here is stipulated conduct as I saw in Paragraph 715f the plea agreement; is that correct?16

R. PEDERSEN:hat's correct.17HE COURT: And I'm also aware just by18eading the newspapers that there's a matter pending19n state court, I guess is that Lee County?20R. GAZIANO: That's Lee County.2 1HE COURT: Is any of the stipulated conduct22r relevant conduct a part of the allegations in the23tate proceeding?24R. PEDERSEN:believe that all the counts25f theft that are alleged against her in Lee CountySusan G. Bloom, CSR (815) 923-4104


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are the same conduct that is alleged to have occurredthroughout the scheme of fraud in this case.

THE COURT:ll right.'m just trying to --ultimately, at the sentencing hearing, you're goingto ask me to consider conduct that is before a judgein the state court.MR, GAZIANO:o.MR. PEDERSEN:ell, the scheme to defraud

that's alleged in the indictment began in 1990 andwent all the way through to her arrest.he LeeCounty State's Attorney's Office has filed chargesagainst her relating to, I believe, a shorter timeperiod, maybe a two-year period.'m not -- I don'tremember the exact dates.

THE COURT:ut that conduct you're going toask that I consider ultimately if she pleads guiltyin the sentencing in this case. Is that correct ornot?

MR. PEDERSEN:t's all -- the scheme todefraud encompasses all the money she took.hey'vealleged that she took a portion of that money, soultimately, I guess, yes.

THE COURT:ll right.hat's what I'mtrying to figure out.want her to be clear onthat, too. Susan G. Bloom, CSR (815) 923-4104

crundwell case: motion to dismiss state charges

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