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`Case: 1:19-cr-00322 Document #: 309 Filed: 10/28/23 Page 1 of 18 PageID #:4935
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`UNITED STATES OF AMERICA,
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` Plaintiff,
` v.
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`EDWARD M. BURKE, PETER J.
`ANDREWS and CHARLES CUI,
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` Defendants.
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`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`MEMORANDUM OPINION AND ORDER
`
`
`
`
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` 19 CR 322
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` Judge Virginia M. Kendall
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`For the reasons below and those stated in open court on October 16 and 18, 2023, the Court
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`rules on Defendant Edward Burke’s Second Consolidated Motions in Limine [247] as follows.1
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`A. Motion in Limine A
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`First, in Burke’s motion A, he objects to the admission of certain of Daniel Solis’s recorded
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`statements as hearsay. (Dkt. 247 at 7–10). The general objection is overruled. “[S]tatements
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`providing context for other admissible statements are not hearsay because they are not offered for
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`their truth.” United States v. Jackson, 940 F.3d 347, 352 (7th Cir. 2019) (quoting United States v.
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`Foster, 701 F.3d 1142, 1150 (7th Cir. 2012)); see also United States v. Wright, 722 F.3d 1064,
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`1067 (7th Cir. 2013) (observing that “statements are admissible when they make a defendant's
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`recorded statements intelligible for the jury or when brief and essential to bridge gaps in the trial
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`testimony that might significantly confuse or mislead jurors” (quoting United States v. Walker,
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`673 F.3d 649, 657–58 (7th Cir. 2012))) (cleaned up). The “exception is not limited to conversations
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`between two parties so long as the out-of-court statements provide context.” United States v.
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`Norton, 893 F.3d 464, 467 (7th Cir. 2018).
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`1 The Court assumes familiarity with the facts and posture of this case. (See Dkts. 196, 287, 301).
`1
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`For instance, recorded conversations between defendants and informants are admissible if
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`the “informant’s statements provide context for the defendant’s own admissions.” Jackson,
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`940 F.3d at 352 (quoting Foster, 701 F.3d at 1150). Indeed, statements of non-conspirators are
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`admissible “‘to give context to the coconspirators’ ends of the conversations,’ even when being
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`introduced against a conspirator not included in the conversation.” United States v. Quiroz,
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`874 F.3d 562, 570 (7th Cir. 2017) (quoting United States v. Zizzo, 120 F.3d 1338, 1348 (7th Cir.
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`1997)). “[C]oncrete and understandable” limiting instructions will help ensure that the jury uses
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`context statements properly. See Wright, 722 F.3d at 1068; Norton, 893 F.3d at 467–68 (citing
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`Zizzo, 120 F.3d at 1348). Of course, “context” has limits: the exception does not permit parties to
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`sneak in statements for their truth. Wright, 722 F.3d at 1067 (citing United States v. Nettles,
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`476 F.3d 508, 517 (7th Cir. 2007)); see also (Dkt. 302). As the Court continues its careful review
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`of objections to the recording transcripts, some statements offered for “context” may not make the
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`cut.
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`B. Motion in Limine B
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`Second, Burke’s motion B seeks to exclude consensually recorded conversations between
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`Solis and Harry Skydell. (Id. at 10–11). The Government indicates that it will only seek to
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`introduce the recordings if they become relevant for a non-hearsay purpose—for instance, if Burke
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`raises a defense based on Skydell’s statements in government interviews which are purportedly
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`exculpatory of Burke. (Dkt. 286 at 12–14). Thus, the Court reserves ruling on these recordings’
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`admissibility. The parties will not mention the Solis–Skydell recordings in opening statements.
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`Should a party intend to introduce evidence of or relating to the Solis–Skydell recordings, they
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`will seek permission from the Court in advance.
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`2
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`C. Motion in Limine C
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`Third, Burke’s motion C for a limiting instruction if Solis recordings are admitted is
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`granted in part. (Dkt. 247 at 11–12). The Court will give the Government’s proposed instruction:
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`You have heard recordings that included statements made by Daniel Solis during
`his cooperation with the government. The statements Solis made in these recordings
`may not be considered as evidence that what he said is actually true. You can
`consider Solis’s statements in these recordings only to place in context and help
`you understand the conversations and the statements made by others in these
`recordings.
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`(Dkt. 286 at 14–16). Defense counsel will remind the Court to repeat the instruction when
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`appropriate.
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`D. Motion in Limine D
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`Fourth, Burke’s motion D, to exclude evidence or argument on the unethical nature of fee-
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`splitting is denied. (Dkt. 247 at 12–14). At issue are tape-recorded conversations between Burke
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`and Solis about a possible marketing arrangement if Solis brought clients to Burke’s law firm. (Id.
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`at 12). Despite Burke’s objections, the evidence is not offered for an off-limits propensity
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`inference. See Fed. R. Evid. 404(b)(2); United States v. Ferrell, 816 F.3d 433, 444 (7th Cir. 2015)
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`(evidence relevant to “another purpose” through “some propensity-free chain of reasoning” is
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`admissible, subject to Rule 403 balancing (quoting United States v. Gomez, 763 F.3d 845, 856 (7th
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`Cir. 2014) (en banc)). Rather, it is probative of Burke’s knowledge and state of mind—going to
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`the Government’s theory that Burke’s intent to create a sham marketing arrangement with Solis
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`reflects his awareness of wrongful conduct. Since Burke is a lawyer, presumably aware of his
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`ethical obligations, evidence of unethical conduct has particular relevance. Nor is the probative
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`value of the evidence substantially outweighed by the dangers of unfair prejudice or confusing the
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`jury. See Fed. R. Evid. 403. To the extent there is some risk of prejudice or confusion, a limiting
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`instruction will help ensure the jury understands the proper use of the evidence. The parties are
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`3
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`directed to propose a limiting instruction to accompany the admission of the marketing-
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`arrangement conversation.
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`E. Motion in Limine E
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`Fifth, Burke’s motion E, to exclude evidence argument about alleged misuse of City
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`resources and personnel, is denied without prejudice. (Dkt. 247 at 14–15). Evidence that Burke
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`misused City resources or personnel is direct evidence of action without the consent of Burke’s
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`employer—an element the Government must prove as to several of the charges, including the
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`predicate offense of commercial bribe receiving. See, e.g., 720 ILCS 5/29A-2. Burke may re-raise
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`this objection in response to specific evidence offered at trial if appropriate.
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`F. Motion in Limine F
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`Sixth, in Burke’s motion F, joined by Andrews, he seeks to exclude 23 emails as hearsay,
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`not admissible under the business-records exception. (Dkt. 247 at 15–28; Dkt. 248 at 2). This
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`motion is taken under advisement.
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`G. Motion in Limine G
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`Seventh, Burke’s motion G seeks to exclude all references to the Chicago Ethics
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`Ordinance, particularly (1) the duty to report provision, Chi. Mun. Code § 2-156-018; (2) the duty
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`not to participate provision, id. § 2-156-030(a); and (3) the duty not to contact or participate in
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`discussion provision, id. § 2-156-030(b). (Dkt. 247 at 28–34). At the outset, the Court agrees with
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`Judge Dow that Burke’s compliance with these latter two provisions, §§ 2-156-030(a) and (b),
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`speaks to whether Burke’s efforts to solicit business for his law firm were “not authorized by
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`law”—relevant to predicate racketeering acts under state law. (Dkt. 196 at 185–86 (denying
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`request to strike the Indictment’s references to the ethics ordinance)); see 720 ILCS 5/33-1(d),
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`5/33-3(a)(4). That reasoning extends to the duty to report provision, § 2-156-018. These
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`4
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`provisions’ relevance is not substantially outweighed by the risk of prejudice or juror confusion,
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`especially with the aid of appropriate limiting instructions. See Fed. R. Evid. 403.
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`Focusing on Burke’s Fifth Amendment challenge to the duty to report provision, § 2-156-
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`018, he argues that mention of the ordinance at trial would offend his right against self-
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`incrimination by inviting the jury to convict him due to a failure to self-report. (Dkt. 247 at 30;
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`Dkt. 290). The duty to report provision states:
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`Every city employee or official shall report, directly and without undue delay, to
`the inspector general any and all information concerning conduct which such
`employee or official knows or should reasonably know to involve corrupt or other
`unlawful activity (i) by another city employee or official which concerns such
`employee's or official's employment or office; or (ii) by any person dealing with
`the city which concerns the person's dealings with the city. Any employee or
`official who knowingly fails to report a corrupt or unlawful activity as required in
`this section shall be subject to employment sanctions, including discharge, in
`accordance with procedures under which the employee may otherwise be
`disciplined.
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`Chi. Mun. Code § 2-156-018(a).
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`In considering a statutory obligation to disclose potentially self-incriminating information,
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`the Fifth Amendment requires “balancing the public need on the one hand, and the individual claim
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`to constitutional protections on the other.” California v. Byers, 402 U.S. 424, 427 (1971) (plurality
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`opinion). Both interests are weighty. Id. In determining whether the duty to report ordinance here
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`gives rise to “substantial hazards of self-incrimination,” factors of particular importance are the
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`extent to which it (1) targets a “highly selective group inherently suspect of criminal activities,”
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`rather than the general public; and (2) delves into “an area permeated with criminal statutes,” rather
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`than an “essentially noncriminal and regulatory area.” Id. at 428–30 (quoting Albertson v.
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`Subversive Activities Control Bd., 382 U.S. 70, 79 (1965), and Marchetti v. United States, 390 U.S.
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`39, 48 (1968)); see also United States v. Turner, 480 F.2d 272, 277 (7th Cir. 1973)
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`5
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`(“[C]onsideration must be made of both the nature of disclosure required and the regulatory
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`purpose for which it is required.”).
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`Despite Chicago’s long history of battling public corruption, City employees are not
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`“inherently suspect of criminal activities.” See Byers, 402 U.S. at 430–31 (drivers are not
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`“inherently suspect”); Baltimore City Dep’t of Soc. Servs. v. Bouknight, 493 U.S. 549, 560–61
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`(1990) (parents are not “inherently suspect”); see also United States v. Sullivan, 274 U.S. 259
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`(1927) (taxpayers). But cf. Albertson, 382 U.S. 70 (members of the Communist Party); Marchetti,
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`390 U.S. 39 (gamblers); Grosso v. United States, 390 U.S. 62 (1968) (gamblers); Haynes v. United
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`States, 390 U.S. 85 (1968) (firearm owners). At least, this Court is not so pessimistic. Nor has
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`Burke offered any evidence that violations of the duty to report provision often result in criminal
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`liability. See Byers, 402 U.S. at 431. Quite the opposite of “inherently suspect,” City employees—
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`and public officials in particular—voluntarily assume a delicate position of trust. By choosing to
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`become an alderman, Burke accepted the accompanying ethical obligations to his constituents. Cf.
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`In re Wiest, 719 F. App’x 485, 491 (6th Cir. 2017) (“[T]he Fifth Amendment’s protections do not
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`relieve an attorney of his ethical duty to communicate with his client.”). If anything, Chicago’s
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`struggles with public corruption underline the City’s strong noncriminal interest in promoting
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`integrity among its officials and employees by requiring them to report corrupt and unlawful
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`conduct.
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`In that vein, the duty to report provision, by its terms, does not threaten criminal
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`prosecution but disciplinary action—enforceable through civil proceedings. See Chi. Mun. Code
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`§ 2-156-018(a) (punishing knowing failures to report with “employment sanctions, including
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`discharge”); see also id. §§ 2-156-385, 392, 465 (describing procedure and penalties). To Burke’s
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`point that § 2-156-018 may overlap with a criminal statute punishing public officials for failing to
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`6
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`report offered bribes, 720 ILCS 5/33-2, the former reaches much further than the latter. In contrast
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`to § 5/33-2, the duty to report provision requires reporting of any “corrupt or other unlawful
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`activity”—sweeping in even minor infractions. Mere overlap with criminal statutes does not mean
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`that the reporting requirement’s purpose is limited to prosecuting criminal activity. See Byers,
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`402 U.S. at 431; see also Turner, 480 F.2d at 277. The duty to report provision serves a far broader
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`regulatory purpose: expecting public officials to hold each other, and themselves, to a high ethical
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`standard. See Chi. Mun. Code § 2-156-005 (describing the ethics ordinance’s goals, including to
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`remind City officials and employees to “place loyalty to the federal and Illinois constitution, laws,
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`and ethical principles above their private gain or interest” and “put forth honest effort in the
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`performance of their duties”); see also Bouknight, 493 U.S. at 556 (“[T]he Fifth Amendment
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`privilege may not be invoked to resist compliance with a regulatory regime constructed to effect
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`the State’s public purposes unrelated to the enforcement of its criminal laws.”).
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`Of course, some risk inheres in disclosing corrupt or unlawful activity. See Byers, 402 U.S.
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`at 431. Yet, the duty to report provision promotes an important, noncriminal purpose, and it focuses
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`on a group that is not “inherently suspect.” Burke has not shown that the provision’s disclosure
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`requirements create “substantial hazards of self-incrimination.” See id. at 430. Accordingly,
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`evidence of Burke’s noncompliance with the duty to report provision will not violate Burke’s right
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`against self-incrimination. Burke’s motion to exclude references to the ethics ordinance is denied.
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`H. Motion in Limine H
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`Eighth, Burke’s motion H, adopted by Andrews, objects to the admission of testimony that
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`individuals were afraid of, intimidated by, or felt pressured by Burke or Andrews. (Dkt. 247 at 34–
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`38; Dkt. 248 at 2). Acknowledging that victims’ perceptions of a defendant’s power are relevant
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`to the extortion charges, Burke contends that, as to corporate victims, such statements are only
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`7
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`relevant from the lips of a decisionmaker—not an employee. (Dkt. 247 at 36). Burke argues further
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`that testimony about Burke’s perceived influence has no bearing on the bribery-related counts.
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`(Id.) Both arguments are unconvincing.
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`First, the Hobbs Act prohibits extortion, defined as “the obtaining of property from another,
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`with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under
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`color of official right.” 18 U.S.C. § 1951(b)(2). The measure of victimhood is a reasonable fear to
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`person or property: “It is not necessary that this fear be a consequence of a direct threat.” United
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`States v. DeMet, 486 F.2d 816, 819–20 (7th Cir. 1973) (collecting cases); cf. United States v.
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`Balistrieri, 778 F.2d 1226, 1232 (7th Cir. 1985) (“[T]he evidence clearly supports the conclusion
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`that [the defendant] sought to induce [the victim] to surrender a financial interest in and control
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`over Best Vending Company, and that he did so by attempting to generate and exploit [the
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`victim’s] fear of injury to his person and property.”). It follows that a corporate victim’s employee
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`can also be a victim where, for example, the defendant threatens the employee’s financial interest
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`in the corporation. See United States v. Agnes, 753 F.2d 293, 302 (3d Cir. 1985) (“Because having
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`a financial interest in a business is sufficient for one to be a victim of Hobbs Act extortion, the trial
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`court did not err in suggesting that any of the employees of Crescent (who obviously had a financial
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`interest in the continuing operation of the business) could be deemed victims of the alleged
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`extortion.”). So long as the Government lays sufficient foundation, testimony by Tri City Foods
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`and Field Museum employees about their perceptions of Burke’s and Andrews’s power may be
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`relevant if the employees are themselves victims, or to show the reasonableness of a corporate
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`victim’s fear.
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`Second, Burke’s influence or clout is relevant to the bribery-related offenses. Focusing on
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`the federal-funds bribery statute, it prohibits corruptly soliciting, demanding, accepting, or
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`8
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`agreeing to accept a bribe or gratuity “intending to be influenced or rewarded in connection any
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`business, transaction, or series of transactions of such organization, government, or agency
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`involving any thing of value of $5,000 or more.” 18 U.S.C. § 666(a)(1)(B) (emphasis added).
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`Evidence of Burke’s own and witnesses’ perceptions of his power, or clout, is relevant to Burke’s
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`charged conduct—in particular, leveraging that clout to obtain business for his law firm. See, e.g.,
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`United States v. Gee, 432 F.3d 713, 715 (7th Cir. 2005) (“One does not need to live in Chicago to
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`know that a job description is not a complete measure of clout. The evidence permitted a
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`reasonable jury to find that [a state official] had plenty of clout and used it to [the bribe-giver’s]
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`benefit, for which he was well paid.”). Plus, testimony about Burke’s power and influence may
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`have further relevance in showing that Burke used his official position to pressure other officials
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`into taking official action in exchange for personal gain. McDonnell v. United States, 579 U.S.
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`550, 572–73 (2016).
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`
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`The Government does not offer the challenged testimony to demonstrate Burke’s
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`propensity to intimidate; as explained, it is relevant for other purposes. See Fed. R. Evid. 404(b)(2);
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`Ferrell, 816 F.3d at 444. To that end, limiting instructions will be available at Defendants’ request
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`to cure any potential for prejudice. In the context of specific testimony during trial, the Court will
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`entertain specific objections under Rule 403. For now, Burke’s objections, joined by Andrews, are
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`overruled.
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`I.
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`Motion in Limine I
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`Ninth, in his motion I, Burke moves to exclude his comments regarding ethnic affiliations
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`as overly prejudicial. (Dkt. 247 at 38). In several recorded conversations, Burke made remarks
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`such as: “Jews are Jews. And they’ll deal with Jews to the exclusion of everybody else unless . . .
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`unless there’s a reason for them to use a Christian.” (Dkt. 286 at 53). In the context of a motion to
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`9
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`strike allegations based on Burke’s comments about Jewish people from the indictment, Judge
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`Dow previously found the comments to be highly probative of Burke’s intent to overcome
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`Company A’s perceived preference for Jewish lawyers by leveraging official action—outweighing
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`his “risk of embarrassment.” (Dkt. 196 at 185). Seeking a rebalancing, Burke urged at oral
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`argument that current events—particularly the October 7, 2023 attack on Israel, sparking the
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`Israel–Hamas war—have altered the Rule 403 calculus by creating a heightened sense of sympathy
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`toward Jewish people, making Burke’s comments much more prejudicial. But that sympathy is not
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`universal; in fact, there is evidence of a rise in antisemitic incidents following Hamas’s attack. See
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`ADL Records Dramatic Increase in U.S. Antisemitic Incidents Following Oct. 7 Hamas Massacre,
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`ADL, https://www.adl.org/resources/press-release/adl-records-dramatic-increase-us-antisemitic-
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`incidents-following-oct-7 (Oct. 25, 2023) (reporting 312 antisemitic incidents in the U.S. between
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`October 7 and October 23—a 388% increase compared to the same period last year—with 190 of
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`those incidents being linked to the Israel–Hamas war). Now as ever, prejudices may cut in any
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`direction. The Court will instruct the jury not to make decisions based on sympathy or prejudice.
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`The motion is denied.
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`J.
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`Motion in Limine J
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`Tenth, Burke’s motion J, which Andrews adopts, moves to exclude lay opinion testimony
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`by a victim, Individual B-1 about the meaning of Burke’s words or his intent. (Dkt. 247 at 38–41;
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`Dkt. 248 at 2). Individual B-1’s expected testimony on Burke’s motive for requiring Company B
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`to get a driveway permit is rationally based on Individual B-1’s perception, helpful in
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`understanding Burke’s motivations, and not overly technical. See Fed. R. Evid. 701. So the
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`objection is overruled.
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`10
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`K. Motion in Limine K
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`Eleventh, Burke’s motion K, to exclude testimony by George Reveliotis, is denied as moot.
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`(Dkt. 247 at 41–43).
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`L. Motion in Limine L
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`Twelfth, Burke’s motion L, to exclude evidence relating to alleged misconduct by
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`Defendant Charles Cui, is taken under advisement, to be addressed in a separate written order
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`along with Cui’s related motion in limine. (Dkt. 247 at 43–46; see Dkt. 253 at 4–6).
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`M. Motion in Limine M
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`Thirteenth, in his motion M, Burke seeks to exclude evidence concerning his interactions
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`with Amtrak, the Water Commissioner and the Building Commissioner as irrelevant. (Dkt. 247 at
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`46–50). Burke relies on McDonnell v. United States, 579 U.S. 550 (2016). There, the Supreme
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`Court defined the phrase “official act,” under 18 U.S.C. § 201, to mean “a decision or action on a
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`‘question, matter, cause, suit, proceeding or controversy,’” which must (1) “involve a formal
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`exercise of governmental power”; and (2) “be something specific and focused that is ‘pending’ or
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`‘may be brought’ before a public official.” Id. at 574 (quoting 18 U.S.C. § 201(a)(3)). The
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`McDonnell Court refused to adopt a broader definition, which would make “nearly anything a
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`public official does—from arranging a meeting to inviting a guest to an event”—a quo for purposes
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`of § 201’s prohibition on quid pro quo bribery. Id. at 574–75.
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`Motivating McDonnell’s construction of “official act” were free speech, due process, and
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`federalism concerns. Id. at 575–77. First, without a clear definition, “[o]fficials might wonder
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`whether they could respond to even the most commonplace requests for assistance, and citizens
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`with legitimate concerns might shrink from participating in democratic discourse.” Id. at 575.
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`Second, relatedly, to comport with due process, “official act” must be sufficiently definite “that
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`11
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`ordinary people can understand what conduct is prohibited” and to avoid “encourag[ing] arbitrary
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`and discriminatory enforcement.” Id. at 576 (quoting Skilling v. United States, 561 U.S. 358, 402–
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`03 (2010)). Third, considering federalism principles, the Court declined to read § 201 “‘in a
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`manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting
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`standards’ of ‘good government for local and state officials.’” Id. at 576–77 (quoting McNally v.
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`United States, 483 U.S. 350, 360 (1987)).
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`With that understanding of “official act,” the Supreme Court held that the district court’s
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`jury instructions on the requirement were inadequate. Id. at 577–80. Yet, the Court was careful to
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`hedge that “setting up a meeting, hosting an event, or making a phone call” may still constitute
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`relevant “evidence of an agreement to take an official act.” Id. at 573. To that end, a public official
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`may take official action if he uses his official position (1) “to exert pressure on another official to
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`perform an ‘official act,’” or (2) “to provide advice to another official, knowing or intending that
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`such advice will form the basis for an ‘official act.’” Id. at 572.
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`In Burke’s view, McDonnell’s reasoning extends to bribery under 18 U.S.C. § 666 and
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`720 ILCS 5/33-1(d) and (e). (Dkt. 247 at 48–50). From the jump, the phrase “official act” appears
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`in neither statute. Section 666(a)(1)(B) makes it unlawful for
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`an agent of an organization, or of a State, local, or Indian tribal government, or any
`agency thereof, [to] corruptly solicit[] or demand[] for the benefit of any person, or
`accept[] or agree[] to accept, anything of value from any person, intending to be
`influenced or rewarded in connection with any business, transaction, or series of
`transactions of such organization, government, or agency involving any thing of
`value of $5,000 or more.
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`18 U.S.C. § 666(a)(1)(B) (emphasis added). Then, § 5/33-1 provides:
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`A person commits bribery when . . .
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`(d) He or she receives, retains or agrees to accept any property or personal
`advantage which he or she is not authorized by law to accept knowing that the
`property or personal advantage was promised or tendered with intent to cause him
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`12
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`or her to influence the performance of any act related to the employment or function
`of any public officer, public employee, juror or witness; or
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`(e) He or she solicits, receives, retains, or agrees to accept any property or personal
`advantage pursuant to an understanding that he or she shall improperly influence or
`attempt to influence the performance of any act related to the employment or
`function of any public officer, public employee, juror or witness.
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`720 ILCS 5/33-1(d), (e) (emphases added).
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`
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`Despite the textual differences, Burke contends that McDonnell’s reading of “official act”
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`must likewise limit the italicized phrases in these statutes. From there, he argues that his
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`interactions with Amtrak, the Water Commissioner, and the Building Commissioner were lawful,
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`and therefore, irrelevant. Not so. The Government intends to introduce evidence of Burke’s calls
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`to an Amtrak official and the Water Commissioner about helping the Post Office project’s
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`developer get access to Amtrak tracks and City water. The Government would also present
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`evidence of Burke’s calls to the Building Commissioner to help Cui get a pole-sign permit. Even
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`if McDonnell required reading an extratextual “official act” element into every bribery statute—
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`and the Court doubts as much—the disputed interactions are at least probative of attempts to
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`influence official action by other public officials. See McDonnell, 579 U.S. at 572–73.
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`True, McDonnell’s free speech and due process concerns may favor definiteness in the jury
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`instructions on the “any business” and “any act” phrases in 18 U.S.C. § 666 and 720 ILCS 5/33-1,
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`respectively. See McDonnell, 579 U.S. at 575–77; see also Seventh Circuit Pattern Criminal Jury
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`Instructions § 666(a)(1)(B), Committee Comment (2023) (“[L]awyers and judges should consider
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`the potential impact of McDonnell on § 666 cases”). McDonnell’s federalism concerns, however,
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`might shake out differently as to § 666 and § 5/33-1. See McDonnell, 579 U.S. at 576 (“A State
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`defines itself as a sovereign through ‘the structure of its government, and the character of those
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`who exercise government authority.’ That includes the prerogative to regulate the permissible
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`
`
`13
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`

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`Case: 1:19-cr-00322 Document #: 309 Filed: 10/28/23 Page 14 of 18 PageID #:4948
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`scope of interactions between state officials and their constituents.” (quoting Gregory v. Ashcroft,
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`501 U.S. 452, 460 (1991))); see also United States v. Lindberg, 39 F.4th 151, 170 (4th Cir. 2022)
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`(“18 U.S.C. § 666 does not raise the same federalism concerns as 18 U.S.C. § 201 because
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`Congress ‘clearly intended’ § 666 to ‘alter[] the existing balance of federal and state powers.’”
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`(quoting Salinas v. United States, 522 U.S. 52, 59 (1997))); United States v. Ng Lap Seng, 934 F.3d
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`110, 138 (2d Cir. 2019) (reasoning that Congress “did not impermissibly intrude on a State’s own
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`policy choices when, in keeping watch on recipients of federal funding, it did not limit § 666
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`bribery to the ‘official act’ definition of § 201(a)(3)” (citing Sabri v. United States, 541 U.S. 600,
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`608 (2004))); United States v. Ferriero, 866 F.3d 107, 128 (3d Cir. 2017) (reasoning that
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`federalism concerns were absent in rejecting a McDonnell challenge to a New Jersey bribery
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`statute).
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`The Court will take up the parties’ disputes over jury instructions soon. As a preview of
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`coming attractions, this Court is disinclined to import § 201’s “official act” requirement wholesale
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`into § 666. The weight of post-McDonnell circuit precedent suggests that the quo in § 666 is
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`broader than § 201’s. See Lindberg, 39 F.4th at 165–69; Ng Lap Seng, 934 F.3d at 131–34 (“[T]he
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`McDonnell ‘official act’ standard, derived from the quo component of bribery as defined by
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`§ 201(a)(3), does not necessarily delimit the quo components of other bribery statutes, such as
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`§ 666 or the FCPA.”); United States v. Roberson, 998 F.3d 1237, 1246–47 (11th Cir. 2021)
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`(refusing to “read into section 666 limitations unsupported by the language of the statute”); United
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`States v. Porter, 886 F.3d 562, 565–66 (6th Cir. 2018) (declining to import “official act” into
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`§ 666); United States v. Carrasco, 79 F.4th 153, 161 (1st Cir. 2023) (collecting cases); see also
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`United States v. Donagher, 520 F. Supp. 3d 1052–55 (N.D. Ill. 2021) (rejecting constitutional
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`challenge to § 666, assuming no “official act” requirement); Ferriero, 866 F.3d at 127 (“[W]e see
`
`
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`14
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`Case: 1:19-cr-00322 Document #: 309 Filed: 10/28/23 Page 15 of 18 PageID #:4949
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`no reason for transplanting the conclusions in McDonnell that stem solely from the Court’s
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`application of general statutory-construction principles to the particular statute at issue in that
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`case.”); cf. United States v. Johnson, 874 F.3d 990, 1001–02 (7th Cir. 2017) (reaffirming that
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`“reward” under § 666 reaches “bribes and gratuities” (citing United States v. Hawkins, 777 F.3d
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`880, 881 (7th Cir. 2015))). For now, Burke’s motion to exclude evidence of his interactions with
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`Amtrak, the Water Commissioner, and the Building Commissioner is denied.
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`N. Motion in Limine N
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`Fourteenth, Burke’s motion N, to exclude evidence regarding the Trilla Drum Factory, is
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`denied as moot. (Dkt. 247 at 50–52).
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`O. Motion in Limine O
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`Fifteenth, in Burke’s eight-part motion O, he seeks to exclude evidence or argument about
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`normal political activity under Rules 402, 404(b) and 403. (Id. at 53–64). As to parts 1, 2, and 3—
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`concerning evidence (1) that Burke recommended Heneghan Wrecking for demolition work; (2)
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`that Burke supported Sterling Bay as the master developer for Union Station’s redevelopment; and
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`(3) of conversations with his brother Daniel Burke—the motion is denied as moot. (Id. at 53–57).
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`Then, the Court reserves ruling on parts 4 and 5—regarding evidence of (4) fundraising calls; and
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`(5) Burke’s calls regarding aspirants to judicial office—in light of the parties’ efforts toward
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`stipulations. (Id. at 57–62). The motion in part 6 seeks exclusion of five calls in which Burke
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`discussed recommending people for jobs or helping them in other ways. (Id. at 62). As to four of
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`those calls, the motion is moot. The motion is denied as to the fifth call, in which Burke discusses
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`a job application for Individual E-1’s sibling. The fifth call is relevant to Burke’s intent and motive
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`to help the Gabinski family, and it is not overly prejudicial. Next, the motion in part 7, concerning
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`a call about Dunkin Donuts, is denied as moot. (Id. at 62–63). As to part 8, Burke’s motion to
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`
`
`15
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`

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`Case: 1:19-cr-00322 Document #: 309 Filed: 10/28/23 Page 16 of 18 PageID #:4950
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`exclude an August 1, 2017 recorded conversation between Burke and a consultant about a tax
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`increment funding (TIF) matter is denied without prejudice. (Id. at 63–64). The call is relevant to
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`show Burke’s power over TIF matters and is not offered for a propensity inference. Nor does it
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`appear overly prejudicial. Burke may re-raise the objection in the context of trial.
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`P. Motion in Limine P
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`Sixteenth, Bur