Report of the Illinois Special States's Attorney Relating to Police Brutality: A Legal Analysis of Federal Laws Implicated
CRS Report for Congress
Report of the Illinois Special State’s Attorney
Relating to Police Brutality: A Legal Analysis of
Federal Laws Implicated
July 31, 2006
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress
Report of the Illinois Special State's Attorney
Relating to Police Brutality: A Legal Analysis of
Federal Laws Implicated
Summary
The report of an Illinois Special State’s Attorney, appointed to investigate
allegations of police brutality committed against certain detainees during the early
1980s, concluded that in three instances indictable aggravated battery, perjury, and
obstruction of justice had occurred, but that the 3-year Illinois statute of limitations
barred prosecution. Media accounts, however, have suggested the possibility of
federal prosecution.
Statements found in the report implicate, at a minimum, federal statutes
outlawing civil rights violations, perjury, false statements, obstructions of justice,
conspiracy, and racketeering. In most instances, the 5-year federal statute of
limitations is not likely to prove any more forgiving that the Illinois law. Federal
law, however, does recognize a longer period of limitation for certain conspiracies
and racketeering offenses.
Yet it is unclear whether either of the exceptions is available. Federal
authorities have apparently examined the question on several occasions in the past
and declined to proceed at least in part on the basis of the statute of limitations.
At this time, we anticipate no subsequent revisions of this report.
Contents
In troduction ..................................................1
Andrew Wilson...........................................2
Phillip Adkins............................................3
Alfonzo Pinex............................................3
Related Matters...........................................3
Federal Laws Implicated........................................4
Statute of Limitations..........................................10
Report of the Illinois Special State’s Attorney
Relating to Police Brutality: A Legal Analysis
of Federal Laws Implicated
Introduction
On July 19, 2006, Illinois Special State’s Attorney Edward J. Egan and Chief
Deputy Special State’s Attorney Robert Boyle, named to investigate long standing
charges of police brutality by a segment of the Chicago Police Department, released
their report, Report of the Special State’s Attorney: Appointed and Ordered by the
Presiding Judge of the Criminal Division of the Circuit Court of Cook County in No.1
concluded that criminal charges might have been brought in three cases of police
misconduct, but in each instance were barred by the Illinois statute of limitations.
Press accounts indicate, however, the Chief Deputy Special State’s Attorney Boyle,
the Report’s co-author, suggested that a prosecution under federal RICO and Hobbs
Act statutes might encounter less severe statute of limitations obstacles.2 This is a
brief examination of the federal criminal statutes implicated by the Report.
The Report concluded:
- In the case of Andrew Wilson, there exists proof beyond a reasonable doubt that
the commanding officer of Area 2 and two other officers who interrogated
Wilson committed aggravated battery, perjury and obstruction of justice in
violation of Illinois law, but two of the officers are deceased and the Illinois 3
year statute of limitations bars prosecution the former commander of the Area 2
Violent Crime unit, Report at 63, 16.
- In the case of Phillip Adkins, there exists proof beyond a reasonable doubt that
two other officers who interrogated Adkins committed aggravated battery in
violation of Illinois law, but the Illinois statute of limitations bars prosecution,
Report at 274, 16.
- In the case of Alfonzo Pinex, there exists proof beyond a reasonable doubt that
a second pair of officers who interrogated Pinex, committed aggravated battery,
perjury and obstruction of justice in violation of Illinois law, but the Illinois
statute of limitations bar prosecution, Report at 290, 16.
1 Linked on July 21, 2006 at [http://www.suntimes.com/output/news/cst-nws-
burge20.html].
2 Pallasch & Esposito, Suspects Tortured But It’s Too Late for Charges, CHICAGO SUN-
TIMES (July 20, 2006). The story also indicates that attorneys for other alleged victims were
highly critical of the Report’s other findings and conclusions.
Andrew Wilson.
Wilson was arrested at 5:15 on the morning of February 14, 1982, in connection
with the investigation of the murder of two police officers, Report at 45. The
arresting officers allegedly brutalized Wilson, beating him, burning him, subjecting
him to electric shocks, and threatening him with a gun until he confessed, Report at
46-7. The commanding officer of the Area 2 Violent Crime Unit was purportedly
present during much of the time and was said to have administered some of the
mistreatment, id. At 10:00 in the evening, Wilson was taken to hospital after officers
at the lock-up refused to take custody of him because of his condition.3 After the
escorting officers remarked that he would refuse treatment if he knew what was good
for him, he “was examined at about 11:15 p.m. by Dr. Geoffrey Korn. Dr. Korn
[later] testified that he made note of some 15 separate injuries that were apparent on
the defendant’s head, chest, and right leg. Two cuts on the defendant’s forehead and
one on the back of his head required stitches; the defendant’s right eye had been
blackened, and there was bleeding on the surface of that eye. Dr. Korn also observed
bruises on the defendant’s chest and several linear abrasions or burns on the
defendant’s chest, shoulder, and chin area. Finally, Dr. Korn saw on the defendant’s
right thigh an abrasion from a second-degree burn; it was six inches long and 1 ½ to
Wilson was subsequently convicted for the murder of the two officers and
sentenced to death, but the Illinois Supreme Court overturned the conviction on
appeal because the state had failed to demonstrate that Wilson’s confession was not
coerced.5 He was retried, convicted a second time and sentenced to life
imprisonment; his conviction and sentence were affirmed6 and his federal habeas
corpus petition denied.7
Wilson sued the three officers, the Superintendent of Police and the City under
42 U.S.C. 1983, based on allegations of his mistreatment, and ultimately settled with
the City8 after being awarded damages and attorney’s fees at trial against the
commanding officer.9 The Office of Professional Standards investigation of the
allegations of brutality led to the commanding officer’s suspension in November
3 People v. Wilson, 116 Ill.2d 29, 36, 506 N.E.2d 571, 573 (1987).
4 116 Ill.2d at 36, 506 N.E.2d at 573-74.
5 116 Ill.2d at 41-2, 506 N.E.2d at 576.
6 People v. Wilson, 254 Ill.App.3d 1020, 626 N.E.2d 1282 (1993).
7 United States ex rel. Wilson v. Peters, 60 F.Supp.2d 777 (N.D. Ill. 1999).
8 Report at 44.
9 See Wilson v. Chicago, 120 F.3d 681, 683 (7th Cir. 1997); see also, Wilson v. Chicago,
Wilson v. Chicago, 710 F.Supp. 1168 (N.D.Ill. 1989); Wilson v. Chicago, 6 F.3d 1233 (7
Cir. 1993); Wilson v. Chicago, 900 F.Supp. 1015 (N.D.Ill. 1995).
The commanding officer denied mistreating Wilson at the suppression hearing
(November 9, 1982), in depositions relating to the civil litigation (1988, 1989), and
at the hearing before the Police Board (which nevertheless found the three had
tortured Wilson, fired the commander, and suspended the other two officers in 1992),
Report at 28-29, 44, 49. He seems likely to have denied them to investigators during
various Office of Professional Standards investigations, the last of which apparently
occurred in November 1991, Report at 153, and during interviews with the Special
State’s Attorney’s office sometime between 2001 and 2006, Report at 15.
Phillip Adkins.
Adkins was arrested on June 7, 1984, in connection with an armed robbery
during which a police officer was assaulted, Report at 266. Adkins asserts that on
the way to the station police officers from Area 2 beat him to unconsciousness,
Report at 267-69. He was hospitalized in the Intensive Care/Trauma Ward on June
8 and June 9 and discharged on June 10, Report at 271. Adkins successfully sued the
officers and the City in federal court and the City settled for $25,000, Report at 267.10
Thereafter, the Chicago Office of Professional Standards conducted an investigation
(May 4, 1993 to December 16, 1993) that concluded that officers had in fact beaten
Adkins, Report at 266.11
Alfonzo Pinex.
Pinex was arrested on June 28, 1985, in connection with a murder charge,
Report at 276. His statement while in custody was suppressed for failure to honor
his Miranda rule rights, Report at 276-77. The court declined to address the question
of whether the statement was the product of a beating, Report at 277. Charges
against Pinex were dismissed and he sued alleging that two officers in Detective Area
2 had beaten him to secure his confession while he was in custody, id. The City
settled for $5,000 on November 1, 1991, id.
Related Matters.
The Report addresses several other instances where detainees complained that
they were beaten by officers of Detective Area 2. In each instance, the Report
concludes that there is a lack of creditable evidence sufficient to convict the officers
in question, Report at 178, 182, 202, 240-41, 264.
The Report also considers the possibility of charges against those purported to
have “covered up” the misconduct of others at Detective Area 2. It observes that,
“We have found no evidence that would support a charge beyond a reasonable doubt
of obstruction of justice (or ‘cover-up’) by any police personnel. There is insufficient
evidence of wrongdoing by any member of the State’s Attorneys Office, except for
one person,” Report at 17; see also, Report at 32-6; 112-29. The exception is
10 The suit was filed in 1986 and depositions taken in December, 1987, Report at 267.
11 The Office had earlier initiated an investigation (November 7, 1984 to 1985) which it
closed “based in part upon a lack of cooperation on the part of Adkins,” Report at 266.
apparently reserved for the prosecutor who ultimately took Wilson’s recorded
confession:
If he was telling the truth when he testified about the sequence of events
leading up to the court-reported confession of Andrew Wilson, . . . then the claim
of Andrew Wilson that he had been abused before he gave that confession would
be seriously undercut. If, on the other hand, [he] was not telling the truth, his
false testimony would stand as strong corroboration of Andrew Wilson . . . He
has testified on the motion to suppress and before the jury that convicted Wilson
and sentenced him to death. He was named in the Federal civil rights action
brought by Andrew Wilson. . . His deposition was taken, and he testified in both
civil trials. He also testified as a witness on behalf of [the police commander]
in the Police Board hearing in 1992. . . . In our judgment [he] did not tell the
truth when he denied that he had been told by Andrew Wilson that he had been
tortured by detectives, Report at 53-4.
The Report does not indicate that its authors would seek to indict and convict
the prosecutor but for impediment of the statute of limitations, nor does it speak to
the weight of any evidence that might support charges of perjury or obstruction of
justice against the prosecutor.
Finally, the Report comments that, “the evidence supports the conclusion that
[the] Superintendent [of Police] was guilty of a dereliction of duty and did not act in
good faith in the investigation of the claim of Andrew Wilson,” Report at 17. It
makes no comment on the existence or weight of any evidence to support criminal
charges.
Federal Laws Implicated
Although the purpose of the Special State’s Attorney’s inquiry was to determine
whether prosecution under Illinois law might be had, statements contained in the
Report suggest the possibility that several federal criminal laws may have been
violated. The Fourth Amendment prohibits unreasonable searches and seizures; the
Fifth Amendment prohibits compelling an individual to incriminate himself; the
Eighth Amendment prohibits cruel and unusual punishment;12 each is binding upon
the state and local officials by virtue of the due process clause Fourteenth
Amendment.13 In combination, they prohibit police from torturing and otherwise
brutalizing those in custody either to elicit confessions or otherwise; to do so under
color of law constitutes a federal crime, 18 U.S.C. 242.14
12 U.S.Const. Amends. IV, V and VIII.
13 Mapp v. Ohio, 367 U.S. 643 (1961)(Fourth Amendment); Griffin v. California, 380 U.S.
14 Williams v. United States, 341 U.S. 97, 100-104 (1951); United States v. Price, 383 U.S.
787, 793 (1966); United States v. Christian, 342 F.3d 744, 750-52 (7th Cir. 2003). Section
242 provides that, “Whoever, under color of any law, statute, ordinance, regulation, or
custom, willfully subjects any person in any State, Territory, Commonwealth, Possession,
or District to the deprivation of any rights, privileges, or immunities secured or protected
by the Constitution or laws of the United States, or to different punishments, pains, or
It is likewise a federal crime to use force, corruption, or deceit to prevent
another from providing authorities with information concerning other federal
offenses, 18 U.S.C. 1512;15 or to directly provide a material false statement in a
matter within the jurisdiction of a federal agency or department, 18 U.S.C. 1001;16
or to lie under oath in federal proceedings, 18 U.S.C. 1621.17 A fifth federal crime,
the Hobbs Act, outlaws extortion under color of official right to the extent that the
misconduct obstructs, delays or affects commerce, 18 U.S.C. 1951.18
Federal racketeering laws (RICO) proscribe operating a formal or informal
enterprise, whose activities affect interstate commerce, through the patterned
penalties, on account of such person being an alien, or by reason of his color, or race, than
are prescribed for the punishment of citizens, shall be fined under this title or imprisoned
not more than one year, or both; and if bodily injury results from the acts committed in
violation of this section or if such acts include the use, attempted use, or threatened use of
a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not
more than ten years, or both; and if death results from the acts committed in violation of this
section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse,
or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under
this title, or imprisoned for any term of years or for life, or both, or may be sentenced to
death.”
15 18 U.S.C. 1513 declares in relevant part, “(b) Whoever knowingly . . . engages in
misleading conduct toward another person, with intent to — (1) influence, delay , or prevent
the testimony of any person in an official proceedings . . . (3) hinder, delay, or prevent the
communication to a law enforcement officer or judge of the United States of information
relating tot he commission or possible commission of a federal offense. . . shall be fined
under this title or imprisoned not more than ten years or both.”
16 18 U.S.C. 1001(a) provides, “(a) Except as otherwise provided in this section, whoever,
in any matter within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully — (1) falsifies, conceals, or
covers up by any trick, scheme, or device a material fact; (2) makes any materially false,
fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing
or document knowing the same to contain any materially false, fictitious, or fraudulent
statement or entry; shall be fined under this title or imprisoned not more than 5 years, or
both.”
17 18 U.S.C. 1621 provides in part, “Whoever — (1) having taken an oath before a
competent tribunal, officer, or person, in any case in which a law of the Untied states
authorizes an oath to be administered, that he will testify, declare, depose, or certify truly,
or that any written testimony, declaration, deposition, or certificate by him subscribed, is
true, willfully and contrary to such oath states or subscribes any material matter which he
does not believe to be true . . . is guilty of perjury and shall, expect as otherwise expressly
provided by law, be fined under this title or imprisoned not more than five years or both. .
. .”
18 The Hobbs Act declares in part, “(a) Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity in commerce, by . . .
extortion or attempts or conspires so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do anything in violation of this
section shall be fined under this title or imprisoned not more than twenty years, or both. (b)
As used in this section . . .(2) The term ‘extortion’ means the obtaining of property from
another, with his consent, induced by wrongful use of actual or threatened force, violence,
or fear, or under color of official right.”
commission of other state or federal crimes (referred to interchangeably as
racketeering activities or predicate offenses), 18 U.S.C. 1961-1963.19
Anyone who aids or abets the commission of a federal offense by another is
liable himself for its commission and is equally punishable, 18 U.S.C. 2.20 The same
can be said of anyone who conspires with another to commit a federal offense or to
obstruct federal governmental activities — conspirators are liable and punishable for
any underlying offenses committed in furtherance of the conspiracy.21 Conspiracy
is a little different, however, in that it is also a separate crime, complete upon the
criminal agreement and under the general conspiracy statute upon the commission
of some overt act in furtherance of the scheme, 18 U.S.C. 371;22 liability attaches
regardless of whether the crime which is the object of scheme is ever committed, 18
U.S.C. 371.23
Absent some specific exception, federal crimes are subject to a general 5-year
statute of limitations; an indictment or information initiating prosecution must be
filed within 5 years of the commission of the offense, 18 U.S.C. 3282. In the case
of crimes like conspiracy or RICO offenses that can extend over long periods of time,
the statute of limitations begins to run with the last act committed in the name of the
19 18 U.S.C. 1962(c) and (d) provide, “(c) It shall be unlawful for any person employed by
or associated with any enterprise engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of
subsection (a), (b), or (c) of this section.” An “enterprise” is defined to include any “legal
entity, and any . . .group of individuals associated in fact although not a legal entity,” 18
U.S.C. 1961(4). “‘[R]acketeering activity’ means (A) any act or threat involving murder,
kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or
dealing in a controlled substance or listed chemical (as defined in section 102 of the
Controlled Substances Act), which is chargeable under State law and punishable by
imprisonment for more than one year; (B) any act which is indictable under the following
provisions of title 18, United States Code . . . section 1512 (relating to tampering with a
witness, victim, or an informant) . . . 1951 (relating to interference with commerce, robbery
or extortion. . . . . 18 U.S.C. 1961(1)(A), (B).
20 18 U.S.C. 2(a) states, “Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is punishable as a
principal.” See also, Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)(“In order to
aid and abet another to commit a crime it is necessary that a defendant in some sort associate
himself with the venture, that he participate in it as in something that he wishes to bring
about, that he seek by his action to make it succeed”).
21 Pinkerton v. United States, 328 U.S. 640, 647-48 (1946).
22 18 U.S.C. 371 provides in part, “If two or more persons conspire either to commit any
offense against the United States, or to defraud the United States, or any agency thereof in
any manner or for any purpose, and one or more of such persons do any act to effect the
object of the conspiracy, each shall be fined under this title or imprisoned not more than five
years, or both. . . .” Various statutes outlaw conspiracy without requiring proof an overt act;
the RICO provision (18 U.S.C. 1962(d)) quoted earlier is one such statute.
23 Salinas v. United States, 522 U.S. 52, 65 (1997).
criminal enterprise and may be considered to continue to exist until abandoned or the
object of the conspiracy has been achieved.24
Evidence that establishes that police officers committed aggravated battery upon
Wilson, Adkins, and Pinex in violation of Illinois law would presumably be
sufficient to support a civil rights conviction for violation of 18 U.S.C. 242.
Federal perjury charges cannot be predicated upon false statements made during
Illinois judicial and administrative proceedings, but the same false statements may
have been made under oath in connection with the federal civil rights suits brought
by Wilson and Adkins. Statements that denied Wilson and Adkins were beaten while
in police custody, if perjurious in Illinois proceedings, were likely perjurious in
federal proceedings. Moreover, evidence of such false statements made to internal
police and other state investigators concerning conduct that might constitute a federal
civil rights violation could form the basis for a federal prosecution under either 18
U.S.C. 1001 (false statements on a matter within the jurisdiction of a federal
department or agency)25 or 18 U.S.C. 1512 (obstructing disclosure of a federal crime
to federal authorities by deception of a potential witness).26
Until recently, it might have been possible to argue that the use of violence or
the threat of violence by law enforcement authorities to coerce prisoners to relinquish
their constitutional rights constituted prohibited extortion under the Hobbs Act and
as a RICO predicate. The Supreme Court’s decision in Scheidler v. NOW, seems to
preclude such a construction. Scheidler held that Hobbs Act extortion does not
include the use of violence or the threat of violence to “restrict another’s freedom of
24 United States v. Saadey, 393 F.3d 669, 677 (6th Cir. 2005).
25 Section 1001 covers false statements made to FBI agents during the course of their
investigations, United States v. Grossman, 272 F.Supp.2d 760, 763 (N.D.Ill. 2003); the
section also covers statements relating to matters within the jurisdiction of a federal
department or agency even if provided to state officers, United States v. Salman, 189
F.Supp.2d 360, 363-66 (E.D.Va. 2002)(false statements to local sheriff’s deputies relating
to access to prisoner being held for federal authorities); United States v. White, 270 F.3dth
356, 363-64 (6 Cir. 2001)(false statement to state environmental agency in a matter within
the federal Environmental Protection Agency’s jurisdiction and relating to data collection
funded by EPA).
26 E.g., United States v. Bailey, 405 F.3d 102, 107-8 (1st Cir. 2005)(uphold the application
of 18 U.S.C. 1512(b)(3) to a county correctional officer to attempted to justify “slapping”
a prisoner around with a fabricated excuse to internal Sheriff’s Department investigators
with the observation that, “The government did not allege that the Sheriff’s Department
investigators were the federal ‘law enforcement officers’ to whom the statute refers; the
government alleged that the investigators were the witnesses who ultimately relayed
Bailey’s misinformation to federal law enforcement officers. See United States v. Baldyga,st
233 F.3d 674, 680 (1 Cir. 2000)(holding that the requirements of the statute are satisfied
so long as the possibility exists that the defendant’s misinformation will eventually be
communicated to federal officials. That these witnesses were themselves county law
enforcement personnel does not change the analysis”); United States v. Veal, 153 F.3d 1233,th
action.”27 Moreover, Scheidler holds that the same definition of extortion applies the
generic reference to state extortion laws in the RICO predicate list.28
The Ninth Circuit appears to have recognized the general possibility of a RICO
prosecution in cases involving charges of police misconduct.29 The cases there,
however, involved allegations of a wider range of predicate offenses, principally
involved an issue critical in civil RICO cases but not relevant for purposes of a
criminal RICO prosecution, and have yet to resolve the question of whether the
requisite elements of a RICO have been satisfied. The cases, which grew out of the
so-called “Ramparts Scandal,” alleged that various officers had committed kidnaping,
extortion, witness tampering, drug dealing, and attempted murder.30 They focused
primarily on the type of injuries for which a civil RICO plaintiff has standing to
recover damages.31
As for the possibility of a RICO prosecution based on crimes implicated here,
civil rights violations of 18 U.S.C. 242 are not RICO predicate offenses, 18 U.S.C.
1621 (perjury), nor of 18 U.S.C. 371 (conspiracy), 18 U.S.C. 1961(1).32 Violations
of 18 U.S.C. 1512, however, are RICO predicate offenses, 18 U.S.C. 1961(1)(B). In
order to establish a RICO violation in this context, the government would have to
prove that the commander and/or various officers of Area 2 conducted the activities
of an enterprising affecting interstate commerce (either the Area 2 violent crime
section or the informal association of the officers dedicated to the use of brutality to
punish and obtain coerced confessions from some of those in their custody) through
the patterned commission of violations of 18 U.S.C. 1512(b)(3) (i.e., denials and
fabrication to investigators pursuing allegations of such brutality).
27 Scheidler v. NOW, 537 U.S. 393, 400-409 (2002)(extortion as understood by section
1951’s drafters involves the acquisition or deprivation of property and contrasts with
coercion which is essentially extortion without this property element). The “extortion”
claimed in Scheidler was the use of violence or the threat of violence directed against
abortion clinics in order to force others “to give up property rights, namely a woman’s right
to seek medical services from a clinic, the right of doctors, nurses and other clinic staff to
perform their jobs, and the right to clinics to provide medical services free from wrongful
threats,” 537 U.S. at 400-401.
28 537 U.S. at 410 (“where as here the Model Penal Code and a majority of the states
recognize the crime of extortion as requiring a party to obtain or to seek to obtain property,
as the Hobbs Act requires, the state extortion offense for purposes of RICO must have a
similar requirement”).
29 E.g., Diaz v. Gates, 420 F.3d 897 (9th Cir. 2005); Guerrero v. Gates, 110 F.Supp.2d 1287
(C.D.Cal. 2000).
30 Diaz v. Gates, 354 F.3d 1169, 1170 (9th Cir. 2004)(allegations of kidnaping and witness
tampering); Guerrero v. Gates, 110 F.Supp.2d 1287, (C.D.Cal. 2000)(allegations of
attempted murder, extortion, narcotics dealing and witness tampering).
31 The Ninth Circuit ultimately held that personal injuries such as false imprisonment that
caused the plaintiff to lose his job constituted an injury to his “business or property” forth
purposes of civil RICO, Diaz v. Gates, 420 F.3d 897, 898-902 (9 Cir. 2005).
32 Conspiracy to violate the RICO provisions, however, is a separate offense, 18 U.S.C.
But at least in part, the problem may be one of time. The Constitution’s ex post
facto clauses, U.S.Const. Art.I, §9, cl.3 and Art.I, §10, cl.1, prohibit the retroactive
application of either federal or state criminal laws.33 Section 1512 was enacted and
became effective on October 12, 1982;34 it cannot be applied to misconduct occurring
prior to that date. Section 1512 became a RICO predicate offense on November 10,
1986;35 a RICO prosecution cannot be grounded on section 1512 predicate offenses
occurring prior to that date. The three cases the Report found prosecutable (but for
the statute of limitations) at best involve conduct straddling November 10, 1986. The
denials of mistreatment to state investigators, at state proceedings, or during
depositions, which provide the gravamen under section 1512 (preventing disclosure
to federal authorities by deceiving those who would otherwise report the commission
of a federal offense), begin with Wilson’s suppression hearing on November 9, 1982,
and end possibly with denials at interviews conducted by the Report’s authors,
Report at 26, 7, 14.
The date section 1512 was added as a RICO predicate, November 10, 1986,
provides a beginning line; no prior violation of section 1512 may be used as a RICO
predicate offense. There may also be a question as to the end line. It is not at all
clear that section 1512(b)(3) covers situations where deceit is used to prevent
disclosure of information to federal authorities concerning federal crimes for which
the statute of limitations has expired. Thus, it may be that no violations of section
1512(b)(3) occurred with respect to denials made more than five years after the
alleged civil rights violations on February 14, 1982 (Wilson), June 7, 1984 (Adkins),
or June 28, 1985 (Pinex). On the other hand, here we have alleged civil rights
violations followed by a series of denials themselves purportedly constituting
violations of federal perjury and false statement statutes. A court might conclude that
the end line should be marked at five years after the penultimate instance of perjury
or a false statement, concealed within a more recent denial upon which a section
1512 charge may be based. In the context of the Wilson case, for example, section
1512 may permit the prosecution of any denial occurring within five years of false
statements made concerning the 1982 civil rights violation during testimony at the
Then there is the question of pattern. A RICO prosecution requires the
government to establish not only qualified predicate offenses but to prove that they
were committed as part of a pattern. The Supreme Court has explained that a “person
cannot be subjected to [RICO] sanctions simply for committing two widely separate
and isolated criminal offenses. Instead, the term ‘pattern’ itself requires the showing
of a relationship between the predicates and of the threat of continuing activity. It is
this factor of continuity plus relationship which combines to produce a pattern.”36
“[P]redicate acts are related if they have ‘the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise are interrelated by
33 Stogner v. California, 539 U.S. 607, 610 (2003).
34 P.L. 97-291, 96 Stat. 1249 (1982).
35 P.L. 99-646, 100 Stat. 3506 (1986)
36 H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989)(emphasis of the
Court).
distinguishing characteristics and are not isolated events.’”37 RICO continuity comes
in two forms, a series of predicate offenses that has ended (closed ended) and a series
of predicate offenses that is continuing or bears the threat of continuation (open
ended). The government “can satisfy the continuity prong either by (1)
demonstrating a close-ended series of conduct that existed for such an extended
period time that a threat of future harm is implicit, or (2) an open-ended series of
conduct that, while short-lived, shows clear signs of threatening to continue into the
future.”38
The Report highlights three cases, each arising at least a year apart from the
others, and involving three different sets of officers. Nevertheless, each is an
instance where officers of Area 2 under the same commanding officer are alleged to
have brutalized detainees in police custody, regularly denied wrongdoing, and offered
explanations that the Report does not find creditable. Of course, the civil rights
violations are not the alleged RICO predicates. The RICO predicates are instead the
alleged violations of section 1512 in the form of denials and fabrications to
investigators, and in state proceedings and federal depositions. More numerous than
the underlying civil rights violations, they benefit and suffer from the same
relationship analysis. They are relatively isolated instances involving different
officers, but arising out of the same environment, reflecting common means and
purpose.
Even if a court should find the cases sufficiently related for RICO purposes, the
question of continuity may still prove troubling. The actionable obstructions appear
to run from the depositions taken in Adkins’ civil case in 1987 to the depositions in
Wilson’s civil litigation in 1988 and 1989, and include statements in Pinex’s civil
litigation in 1991, testimony in the Wilson Police Board hearing in 1992, and
possibly statements to investigators in the Office of Professional Standards’ Adkins
investigation that ended in December 16, 1993. The duration of the activity would
seem sufficient, but the comparatively few instances, relatively isolated in time and
circumstance, may bring into question whether the events can accurate be seen as the
evidence of the continuous existence of a single enterprise.
Statute of Limitations
As noted earlier, federal crimes are generally subject to a 5-year statute of
limitations, 18 U.S.C. 3282. The civil rights violations of which the Report speaks
occurred in 1982, 1984 and 1985. The Report indicates that with the exception of its
own interviews (for which it provides no dates) the denials and alleged fabrications
upon which any other criminal charges would have been grounded occurred not later
December 16, 1993, the date upon which the last mentioned Office of Professional
Standards investigation ended, Report at 266. The Report argues that the Illinois
statute of limitations precludes state prosecution, Report at 16.
37 Roger Whitmore’s Auto v. Lake County, 424 F.3d 659, 672 (7th Cir. 2005), quoting, H.J.,
Inc. v. Northwestern Bell Telephone Co., 492 U.S. at 240.
38 Roger Whitmore’s Auto v. Lake County, 424 F.3d at 673.
While citing the earlier conclusions of federal authorities, media accounts at the
time the Report was released quoted one of its authors as suggesting that RICO and
the longer federal statute of limitation might hold the prospect of future federal
prosecution. This would seem to build upon a theory that the officers alleged to have
committed the three civil rights violations in the 1980s were part of a conspiracy or
RICO enterprise that encompassed not only the beating of detainees but an agreement
to perpetually conceal the activity.39
As a general rule, the statute of limitations begins to run with the commission
of the most recent overt act for conspiracies in violation of a statute which requires
the government to prove both criminal agreement and some overt act in furtherance
of scheme.40 In the case of statutes like RICO whose conspiracy proscription carries
no overt act requirement, the scheme is said to continue until all its objectives have
been realized or it is abandoned.41
In Grunewald v. United States, 353 U.S. 391 (1957), the question arose in
whether in the case of an overt act conspiracy, the statute of limitations may be
extended when the conspirators or one of their number acts to conceal the past
workings of the scheme. The defendants in Grunewald had conspired to fix tax
prosecutions and had doctored government records to conceal their misconduct, 353
U.S. at 395. When a grand jury was convened after the statute of limitations on the
“tax fix” had run, the conspirators denied wrongdoing and urged other witnesses not
to cooperate, 353 U.S. at 396.42 The prosecution argued that the conspiracy included
a concealment component that meant the plot continued in place even after its
principal objective, the tax fix, had been accomplished.43
39 The Report notes that some of those who claimed to have been the victims of police abuse
articulated a comparable theory: “1) All the police officers at Areas 2 and 3 . . . who have
been accused by any of the claimants, had engaged in a single conspiracy even before the
arrest of the claimants to extract confessions from the claimants by force if necessary and
at the same time; 2) conspire to obstruct justice and to commit perjury by testifying falsely
at the trials of the claimants; and 3) at any possible future proceedings such as those
involving post-conviction petitions or federal habeas corpus hearings. 4) A conspiracy to
obstruct justice and to commit perjury may be barred by the statute of limitations, but a
subsequent overt act will resuscitate it. 5) the original conspiracy to commit armed violence
in each case is part of a continuing conspiracy that still exists. 6) It is conceded that the
evidence to support a finding of a general conspiracy is all circumstantial,” Report at 21.
40 United States v. Qayyum, 451 F.3d 1214, 1218 (10th Cir. 2006); United States v.
Salmonese, 352 F.3d 608, 614 (2d Cir. 2003); United States v. Smith, 197 F.3d 225, 228 (6thth
Cir. 1999); United States v. Yashar, 166 F.3d 873, 876j (7 Cir. 1999).
41 United States v. Magleby, 420 F.3d 1136, 1145 (10th Cir. 2005); United States v. Saadley,
42 See also the more extensive description of the facts in lower court opinion, United States
v. Grunewald, 233 F.2d 556 (2d Cir. 1956).
43 The government “urges that even if the main object fo the conspiracy was to obtain
decisions from the Bureau of Internal Revenue not to institute criminal tax prosecutions...
the indictments alleged, and the proofs showed, that the conspiracy also included as a
subsidiary element an agreement to conceal the conspiracy to ‘fix’ these tax cases, to the end
that the conspirators would escape detection and punishment for the crime. Says the
The Court was unpersuaded, “[w]e find in all this noting more than what was
involved [in our earlier cases], that is: (1) a criminal conspiracy which is carried out
in secrecy; (2) a continuation of the secrecy after the accomplishment of the crime;
and (3) desperate attempts to cover up after the crime begins to come to light; and so
we cannot agree that this case does not fall within the ban of those prior opinions,”
353 U.S. at 403. But then the Court went on the explain that “[b]y no means does
this mean that acts of concealment can never have significance in furthering a
criminal conspiracy. But a vital distinction must be made between acts of
concealment done in furtherance of the main criminal objectives of the conspiracy,
and acts of concealment done after these central objectives have been attained, for
the purpose only of covering up after the crime.” 353 U.S. at 405 (emphasis in the
original).
Subsequent lower court decisions reflect the view that an overt act of
concealment will toll the statute of limitations or evidence its continued existence if
the indictment charges that concealment was of the main object of the conspiracy.
The Report cites two reported federal appellate court cases as examples, United
States v. Masters, 924 F.2d 1362 (7th Cir. 1991), and United States v. Maloney, 71
F.3d 645 (7th Cir. 1995). Masters involved an attorney, a chief of police who until
he lost his job took kickbacks for referring clients to the attorney, and a sheriff’s
department lieutenant who accepted bribes from the attorney to protect bookies from
police interference, 924 F.2d at 1365. The three also participated in a plot to murder
the attorney’s wayward wife, 924 F.2d at 1365-366. The three were convicted under
federal RICO charges predicated on the corruption offenses, 924 F.2d at 1365. The
chief of police was charged and convicted only with conspiracy because the statute
of limitations on the substantive corruption charges had run between the time he lost
his job and the time the indictment was returned, id.
The appellate court rejected the chief’s statute of limitations challenge with the
observation that “[t]he conspirators in this case, signally including [the chief],
intended from the first to exert strenuous efforts to prevent discovery fo the crime
and of their involvement in it; the fact that two of the three conspirators were
policemen supports the inference that concealment was part of the original
conspiracy and not a spontaneous reaction to fear of arrest and prosecution. It was
also a fair inference that the defendants agreed to keep trying to conceal the
conspiracy for as long as they could, using their official positions where possible,”
government, ‘from the very nature of the conspiracy . . . there had to be, and was, from the
outset a conscious, deliberate, agreement to conceal . . . each and every aspect of the
conspiracy . . .’ It is then agreed that since the alleged conspiracy to conceal clearly
continued long after the main criminal purpose of the conspiracy was accomplished, and
since overt acts in furtherance of the agreement to conceal were performed well within the
indictment period, the prosecution was timely,” 353 U.S. at 398.
44 It is not clear why much the same could not have been said about the Grunewald
defendants, except that in Masters concealment was a component of the scheme, “Among
the elements of the conspiracy with which [the chief] was charged was that he had agreed
with the other two defendants to conceal their actions . . . and . . . to participate in such
concealment indefinitely,” 924 F.2d at 1368.
Maloney involved a judge who accepted bribes to “fix” four criminal cases and
then sought to make sure that the middle man through whom the bribes were
funneled continued to “stand tall” in the face of criminal investigations into
allegations of corruption, United States v. Maloney, 71 F.3d 645, 650-52 (7th Cir.
1995). The statute of limitations had run on each of the bribery cases by the time
indictments were returned, but the judge was charged with and convicted of a RICO
conspiracy based upon the obstruction of justice predicates, 71 F.3d at 649. The
judge objected that the statute of limitations barred prosecution for a conspiracy to
conceal the commission of time-barred offenses, but the appellate court responded
that, “[u]nlike Grunewald, however, the conspiracy’s main criminal objective was
never ‘finally attained’ in this case. . . . In the instance case, the main criminal
objective, to fix cases whenever feasible, was neither accomplished nor abandoned
as long as Judge Maloney remained on the bench . . . Concealment, therefore, was an
overt act in furtherance of the conspiracy’s main objectives. . . Maloney’s statements
. . . helped to preserve his position on the bench — the essential ingredient in the
conspiracy’s ability to fix cases. . . Thus, Grunewald does not exclude the obstruction
of justice acts from the RICO conspiracy for statute of limitations purposes” 71 F.3d
at 659-60.45
Cases from other circuits reflect the same view: Grunewald does not bar
extension of the statute of limitations to include acts of concealment where
concealment falls within the scope of the conspiracy; Grunewald only applies where
the conspiracy’s objectives have been attained and concealment follows.46
If federal prosecutors could establish either a conspiracy in which concealment
was an initial object of the plot or a RICO violation or conspiracy, the specter of a
statute of limitations bar would disappear. Otherwise the statute of limitations would
appear to preclude federal prosecution on the basis of any misconduct identified in
the Report.
Other than its own interviews, the last of the events in question took place no
later than December 16, 1993, Report at 266. The Special State’s Attorney’s
investigation described in the Report began in 2001 and ended July 19, 2006. The
commanding officers and each of the individual officers whom the Report describes
as indictable were interviewed, Report at 16, 274, 290, 15. The interview statements
were apparently consistent with the officers’ earlier statements, for the Report would
certainly have noted any incriminating statements. If the interview statements were
false and material, they would constitute violations of 18 U.S.C. 1001 and 1512(b)
45 Thus, the principal difference between Grunewald and Maloney is that the Grunewald
indictment consisted of separate conspiracy and concealment charges. The Maloney
indictment merged them together in a RICO charge.
46 United States v. Qayyum, 451 F.3d 1214, 1219-220 (10th Cir. 2006)(emphasis in the
original)(“Given the grand jury’s express description of the conspiracy’s purpose and object,
the alleged false statements to government agents formed part of the [charged] conspiracy
because they did not follow the accomplishment of its central criminal objectives but ratherth
were acts in furtherance of those aims”); United States v. Rabinowitz, 56 F.3d 932, 934 (8
Cir. 1995)(“When concealment is necessary to accomplish a crime successfully, acts of
concealment are properly considered to be within the conspiracy”).
(3); but if the statute of limitations bars the prosecution of the offenses to which the
statements relate, they are not material consequently no violation.
The Report suggests that dispelling statute of limitation difficulties, however,
may be challenging, for on several occasions federal authorities have concluded that
the passage of time bars federal prosecution:
On October 3, 1990 . . . the Task Force to Confront Police Violence wrote
to . . . the United States Attorney, pointing out that [it] had previously submitted
information regarding incidents of torture committed by the detectives at
Detective Area 2 . . . the response form the United States Attorney’s Office was
that the incidents had occurred more than five years before. . . On March 15,
1991, Assistant Public Defender Joseph M. Grump wrote to [the Attorney
General], also referring to . . . the case of Andrew Wilson. Mr. Gump identified
over 25 cases involving persons who claimed to have been abused. . . it was
determined that prosecution would be declined because of the statute of
limitations. The matter was reopened by the Department of Justice, and on May
Shortly after we were appointed, we were informed that persons . . . seeking
prosecution of police officers met with [the] Attorney General. . . .We have
received a report that the investigation . . . by the Civil Rights Section of the
Justice Department was closed as of December 2001 because of the statute of
limitations. Report at 30-1, 30.