`
`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 1 of 47 PageID #:13424
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`UNITED STATES OF AMERICA,
`
` Plaintiff,
`
` v.
`
`EDWARD M. BURKE,
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` Defendant.
`
`
`
`
`
` No. 19 CR 322
`
` Judge Virginia M. Kendall
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`MEMORANDUM OPINION AND ORDER
`
`
`
`Former Alderman Edward Burke has a storied career in Chicago politics. Yet, this case
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`solely concerns his discrete actions between 2016 and 2018. On May 30, 2019, a federal grand
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`jury indicted Burke on fourteen corruption-related counts involving a typical pay-to-play scheme,
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`abusing his position to drive business and fees towards his private legal practice. (Dkt. 30). The
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`charges center on four factual “episodes” from 2016 to 2018 involving: (1) the Old Post Office;
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`(2) a Burger King restaurant; (3) Pole Sign in front of a Binny’s liquor store; and (4) a job at the
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`Field Museum. Following a six-week trial, a jury convicted Burke on all but one of those counts.
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`(Dkt. 392). At the close of evidence, Burke moved for a judgment of acquittal on charges related
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`to the Field Museum episode. (Dkt. 378). Burke now moves for a judgment of acquittal on various
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`other counts and for a new trial. (Dkt. 455). For the following reasons, Burke’s motions [378, 455]
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`are denied. The jury’s verdict stands.
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`
`
`
`
`
`
`1
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`

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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 2 of 47 PageID #:13425
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`BACKGROUND
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`Edward Burke is the longest-serving member of Chicago’s City Council, serving as both
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`the 14th Ward Alderman from 1969 to 2023 and the Council’s Chairman of the Committee on
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`Finance from 1989 to 2019. Concurrently, he also owned a private law firm, Klafter & Burke, that
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`represented clients in property tax assessment contests and appeals. Though Burke was in office
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`for over fifty years, this case concerns actions taken at the tail end of his career.
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`A May 30, 2019, a grand jury alleged in a Superseding Indictment alleged Burke exploited
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`his authority as alderman and chairman to gain business for his law firm in exchange for securing
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`official favors such as tax breaks and permits from the City of Chicago. (Dkt. 30 ¶¶ 1–4; Dkt. 196
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`at 1). The Superseding Indictment charged Burke with fourteen counts of racketeering, federal
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`program bribery, attempted extortion, and the use of interstate commerce to further such violations.
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`It also charged Burke’s associate, Peter Andrews, and businessman Charles Cui with additional
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`corruption-related counts.
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`The charges centered on four “episodes” where Burke exploited his position on the Chicago
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`City Council: the (1) Post Office; (2) Burger King; (3) Pole Sign; and (4) Field Museum. These
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`episodes are the bases for the five Racketeering Acts—each containing multiple subparts—
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`charged in Count One and undertaken by Burke with the common goal of conducting the affairs
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`of the City of Chicago by means of a pattern of racketeering.1 See Racketeer Influenced and
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`Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). To be guilty of Count One, the jury
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`had to find that Burke undertook a pattern of racketeering activity, meaning in part that he
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`
`1 Racketeering Acts 1 and 2 relate to the Post Office; Racketeering Act 3 relates to Burger King; Racketeering Act 4
`relates to the Pole Sign; and Racketeering Act 5 relates to the Field Museum. The Indictment charged Burke with
`violating federal and Illinois state law predicates that underpin Count One and the Travel Act charges: 720 ILCS 5/33-
`1 (Bribery); 720 ILCS 5/33-3(a)(4) (Official Misconduct); ILCS 5/29A (Commercial Bribery); 18 U.S.C. § 1952(a)(3)
`(Travel Act); 18 U.S.C. § 1951(a) (Hobbs Act).
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`
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`
`2
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`

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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 3 of 47 PageID #:13426
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`committed at least two of the Racketeering Acts. (See Dkt. 384 at 36); 18 U.S.C. § 1961(5). In
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`turn, each Racketeering Act required the jury to find Burke committed certain federal and state
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`law predicates acts.2 The jury convicted Burke on Count One, finding that he committed sufficient
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`predicate acts to satisfy each of the five Racketeering Acts. (See Dkt. 392). The remaining twelve
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`counts charged Burke with attempted extortion in violation of 18 U.S.C. § 1951(a), federal
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`program bribery in violation of 18 U.S.C. § 666(a)(1)(B), and the use of interstate commerce in
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`furtherance of such activity in violation of 18 U.S.C. § 1952(a)(3). The convictions against Burke
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`and his various challenges are laid out below.
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`Count
`
`Episode
`
`Violation(s)
`
`Description
`
`Challenge
`
`1
`
`
`
`Post
`Office
`
`
`
`Post
`Office
`
`Racketeering
`Act 1
`
`18 U.S.C. § 1962(c)
`1(a) – 720 ILCS
`5/33-1(e), ILCS
`5/8-4
`1(b) – 720 ILCS
`5/33-3(a)(4)
`1(c) – 18 U.S.C.
`§ 1952(a)(3)
`1(d) – 18 U.S.C.
`§ 1952(a)(3)
`2(a) – 18 U.S.C.
`§ 1952(a)(3)
`2(b) – 720
`ILCS 5/33-
`3(a)(4)
`
`Racketeering
`Act 2
`
`Burger
`King
`
`Racketeering
`Act 3
`
`3(a), 3(c)–(g)
`
`Pole Sign Racketeering
`Act 4
`
`4(a) – 18 U.S.C.
`§ 1952(a)(3)
`
` Attempted Bribery Rule 33
`
`Official Misconduct Rule 33
`
`Travel Act
`
`Travel Act
`
`Travel Act
`
`Rule 29
`
`Rule 29
`
`Rule 33
`
`Official Misconduct Rule 33
`
`Travel Act,
`Attempted
`Extortion,
`Attempted Bribery,
`Official Misconduct
`Travel Act
`
`Not
`Challenged
`
`Rule 29
`
`
`2 The listed state and federal laws underpinning each Racketeering Act are the “predicate acts” under § 1962(c).
`Committing at least two enumerated predicate crimes within 10 years forms the foundation for violating Count One.
`18 U.S.C. § 1961(5). Some of the predicate offenses also are separately charged as offenses.
`3
`
`
`
`

`

`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 4 of 47 PageID #:13427
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`4(b) – 18 U.S.C.
`§ 1952(a)(3)
`4(c) – 720 ILCS
`5/33-1(d)
`5(a) – 18 U.S.C.
`§ 1951(a)
`5(b) – 18 U.S.C.
`§ 1952(a)(3)
`18 U.S.C. § 666(a)(1)(B)
`
`Racketeering
`Act 5
`
`18 U.S.C. § 1952(a)(3)
`
`18 U.S.C. § 1952(a)(3)
`
`18 U.S.C. § 1951(a)
`
`18 U.S.C. § 1952(a)(3)
`
`18 U.S.C. § 1952(a)(3)
`
`18 U.S.C. § 1952(a)(3)
`
`18 U.S.C. § 666(a)(1)(B)
`
`Field
`Museum
`
`Post
`Office
`Post
`Office
`Post
`Office
`Burger
`King
`Burger
`King
`Burger
`King
`Burger
`King
`Pole Sign
`
`Travel Act
`
`Bribery
`Attempted
`Extortion
`Travel Act
`Bribery –
`Solicitation
`Travel Act
`
`Rule 29
`
`Rule 29
`
`Rule 29
`
`Rule 29
`
`Rule 33
`
`Rule 29
`
`Travel Act
`Attempted
`Extortion
`Travel Act
`
`Travel Act
`
`Rule 29
`Not
`Challenged
`Not
`Challenged
`Not
`Challenged
`Not
`Challenged
`Bribery – Accepting Rule 29
`
`Travel Act
`
`Pole Sign
`
`18 U.S.C. § 1952(a)(3)
`
`Pole Sign
`Field
`Museum
`Field
`Museum
`
`18 U.S.C. § 1952(a)(3)
`
`18 U.S.C. § 1951(a)
`
`18 U.S.C. § 1952(a)(3)
`
`Travel Act
`
`Travel Act
`Attempted
`Extortion
`Travel Act
`
`Rule 29
`
`Rule 29
`
`Rule 29
`
`Rule 29
`
`2
`
`3
`
`4
`
`5
`
`7
`
`8
`
`9
`
`11
`
`15
`
`16
`
`18
`
`19
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`
`
`I.
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`Relevant Factual Summary of the Episodes
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`The Court assumes familiarity with the sprawling facts of this case from its previous
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`rulings. (See Dkts. 196, 287). To state all the evidence presented would be tantamount to rehashing
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`the six-week trial. For efficiency and clarity, the Court recounts the evidence pertinent to Burke’s
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`arguments and a basic understanding of the events. As Burke does not challenge counts related to
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`the Burger King episode, it is not reprised below.
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`
`
`4
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`

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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 5 of 47 PageID #:13428
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`a. Field Museum
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`At trial, the jury heard evidence that Burke abused his position to acquire a paid position
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`at the Field Museum of Natural History for his goddaughter, Molly Gabinski. In July 2017, Burke
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`called the Office of the President of the Museum, Richard Lariviere, to recommend Gabinski for
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`a paid internship and had his assistant send her resume over after the call. (GX 261, 264). The
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`Field Museum inadvertently met this outreach with silence.
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` Weeks later, on September 8, 2017, the Field Museum head of government affairs,
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`Deborah Bekken, called Burke’s office to schedule a meeting with him to discuss a pending
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`proposal. (Dkt. 401 at 462–63; GX 91). The Field Museum proposed an admission fee increase
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`before the Chicago Park District Board of Commissioners and Burke previously expressed
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`opposition to such increases, causing embarrassment, bad press, and possible financial
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`repercussions for the museums. (Dkt. 400 at 452–53; Dkt. 401 at 511, 587–88). From the jump,
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`Burke expressed his displeasure with the Field Museum, stating he was “surprised to hear from
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`you” since he never heard back on Gabinski’s application. (GX 91). And he was “surprised” that
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`the Field Museum was “now . . . gonna make a request of me.” (Id.) He then stated, “I’m sure I
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`know what you wanna do because if the Chairman of the Committee on Finance calls the President
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`of the Park Board, your proposal’s gonna go nowhere.” (Id.) Burke also asked if Bekken knew
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`about his previous opposition, which was “a very sensitive matter.” (Id.) Bekken agreed to follow
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`up with Lariviere, President of the Field Museum, to “find out, um, what went wrong” and “fix
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`it.” Burke replied, “[w]ell, somebody better.” (Id.; Dkt. 401 at 467).
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`Lariviere followed up with Burke that same evening: “[W]hen you call, Ed, everybody
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`knows, we jump.” (GX 92). Yet, after Lariviere offered to correct the situation, Burke noted that
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`“that ship has already left the dock.” (GX 92; Dkt. 401 at 623). Still, the Field Museum’s executive
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`
`
`5
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`

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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 6 of 47 PageID #:13429
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`team met the next business day to discuss the “urgent” issue of Burke’s call and Gabinski’s
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`application. (Dkt. 401 at 605–06; Dkt. 402 at 676–77).
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`Belying Burke’s statement that the “ship has already left the dock,” on September 11, 2017,
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`he asked his assistant to follow up with the Museum regarding Gabinski. (GX 295). Lariviere then
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`emailed Burke personally and offered Gabinski an opportunity to apply for a full-time job with the
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`Museum that paid approximately $47,500 per year. (GX 294, 297, 426; Dkt. 402 at 683). After
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`receiving the offer, Burke contacted Gabinski’s mother, relayed the offer and offered to ask his
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`assistant to inquire about the application process. (GX 299; Dkt. 400 at 415). Burke noted to
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`Gabinski’s mother that the paid position arose because the Field Museum called “asking me to
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`help ‘em on another matter [and] I read him the riot act.” (GX 94). The Field Museum then emailed
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`Gabinski to set up an interview for the position. (GX 300). Two days later, the Park District Board
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`approved the admissions increase. (Dkt. 401 at 497:8–10). But on September 19, 2017, Gabinski
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`turned down the job interview. (GX 307).
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`b. Pole Sign
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`During this time, Burke also got involved with Defendant Charles Cui’s pole sign permit.
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`The jury heard evidence that in 2015, Cui entered into a lease agreement with Binny’s Beverage
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`Depot for a commercial property located at 4901 West Irving Park Road. (GX 407). Cui then
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`obtained $2 million in tax increment financing (“TIF”) funds from the City of Chicago to redevelop
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`the commercial property.3 (GX 410, 411). In exchange for the TIF funds, Cui had to lease the 4901
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`Property back to Binny’s. (GX 414). In that lease, Cui gave Binny’s the exclusive right to use the
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`pole sign in front of the property. (GX 407). Binny’s applied to the Chicago Department of
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`Buildings (“CDOB”) for a pole sign permit in April 2017, which was denied. (GX 453; see Dkt.
`
`
`3 TIF funding is a “special funding tool used by the City of Chicago to promote public and private investment across
`the City.” (Dkt. 461 at 2). A Class L designation is a favorable tax designation. (Id. at 51).
`6
`
`
`
`

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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 7 of 47 PageID #:13430
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`427 at 3724–3728). After its denial, Cui entered into a lease addendum that gave Binny’s a rent
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`reduction if Cui did not obtain a pole sign permit by October 2017. (GX 424). The stakes were
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`high: If Cui failed, he would lose about $750,000 in rent revenue over the lease period and
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`potentially the TIF funds. (GX 270, 304).
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`The pole sign was in the 45th Ward. Yet, Cui chose to email Burke, the 14th Ward
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`Alderman, in August 2017. (GX 270). Cui told Burke that the pole sign was “denied by zoning”
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`for falling out of use, and “now is illegal.” (Id.) He asked Burke to “look into the matter” and
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`asked, “how to proceed” because he faced serious financial repercussions. (Id.) After hearing no
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`response, Cui emailed Burke the following day and offered him tax appeal work for the Irving
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`Park Road commercial property. (GX 273). Burke then replied that someone with his law firm
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`would be in touch with Cui, (GX 274), and directed his assistant to reach out to CDOB
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`Commissioner Judy Frydland to “see if she’d . . . review it and see if they . . . can . . . help [Cui].”
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`(GX 88). Burke’s assistant replied to Cui’s original email and told him Frydland would reach out
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`to him. (GX 270). On September 5, 2017, Cui entered into a contingency fee agreement with
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`Klafter & Burke for the tax appeal work. (GX 427).
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`Burke also separately called Frydland on August 31, 2017. (Dkt. 425 at 3507–10; see GX
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`301). After he spoke to Frydland, Burke noted to his assistant that CDOB has “been trying to look
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`into how to get [the permit approval] to work. But [Frydland] can’t seem to figure out a way.” (GX
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`95). Frydland suggested that Burke contact Zoning Administrator Patti Scudiero. (Id.; Dkt. 426 at
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`3538–40). After CDOB First Deputy Commissioner Matt Beaudet concluded the pole sign permit
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`was not allowed, Burke contacted Scudiero to see if she could “look into,” or review, the pole sign
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`permit denial. (Dkt. 427 at 3728). Scudiero took no further action.
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`
`
`7
`
`

`

`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 8 of 47 PageID #:13431
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`c. Post Office
`
`i. Amtrak
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`At trial, the jury heard evidence that in 2016, 601W—a New York-based developer—
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`began redeveloping the Old Post Office building. (See Dkt. 409 at 1491). At that time, the Old
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`Post Office was empty for approximately twenty years and was in significant disrepair. (Id. at
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`1463–66). To redevelop, 601W needed a Class L designation, TIF funding, and approvals from
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`Amtrak and the City of Chicago Water Department. But those requirements proved difficult to
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`obtain. Thus, Harry Skydell, the 601W manager for the redevelopment project, reached out to
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`former alderman and government-cooperator Danny Solis, whose ward contained the Post Office.4
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`The jury heard recorded calls and saw emails between Solis and Burke that explained their
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`scheme. Solis would help Burke’s law firm receive legal work from 601W through his aldermanic
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`connection to the redevelopment project. Then Solis would receive a portion of the generated legal
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`fees via a consulting or marketing agreement with Burke’s firm. In exchange, Burke would use his
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`influence to move the Old Post Office project forward. (See GX 2, 13).
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`First, throughout the redevelopment, 601W had difficulty obtaining permits to access
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`property owned by Amtrak located below the Old Post Office. (See Dkt. 409 at 1493–94, 1499).
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`On October 27, 2016, Burke and Skydell met in Solis’s City Hall office. (GX 5). Burke told
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`Skydell about Klafter & Burke’s ability to perform tax work for 601W. (Id.) They also discussed
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`601W’s issues with obtaining Amtrak permits to access the track below the Old Post Office. (Id.)
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`The jury heard evidence that during the meeting, Burke touted his connections, including with an
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`Amtrak board member, who could assist Skydell with his project. (Id.)
`
`
`4 Solis began cooperating with the Government in 2016 after he was the subject of a federal investigation regarding
`his position as a public official. (See Dkt. 196 at 95).
`
`
`
`8
`
`

`

`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 9 of 47 PageID #:13432
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`In December 2016, Burke met with Ray Lang, Amtrak’s government relations executive
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`and President of Chicago Union Station Company. (Dkt. 410 at 1599, 1605–06; GX 505). Amtrak
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`is a federally owned corporation, with its board members nominated by the President of the United
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`States and confirmed by the Senate. (Dkt. 410 at 1597–99). Amtrak had stringent requirements for
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`approvals to access the property located below the Post Office, creating tension with 601W. (See
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`id. at 1610–13). Lang testified at trial that before meeting in Burke’s City Hall office, he was
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`“pretty convinced” the conversation would be about 601W’s permits. (Id. at 1647–49). After
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`meeting with Lang, Burke told Solis that 601W had not yet hired Burke’s law firm and opined that
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`Skydell would not do so “unless there’s a reason.” (GX 8). In other words, the hiring was
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`contingent on Burke’s assistance. Burke expressed frustration to Solis that his law firm had not yet
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`been retained by 601W even though he was interfacing with Amtrak on 601W’s behalf. (See id.
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`(noting if 601W hired Burke’s law firm, it would be “a different story”); GX 9 (“Alright, but I still
`
`haven’t been retained.”); GX 10 (expressing Burke’s belief that he should not be “getting
`
`involved” unless 601W retained his firm); GX 11 (“So far . . . the cash register has not, uh, rung
`
`yet.”)).
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`601W continued to need assistance with Amtrak approvals throughout the spring. In
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`February 2017, Burke, Solis, and Lang toured Union Station where they discussed the permit
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`issues between Amtrak and the Old Post Office. (Dkt. 410 at 1657; GX 12). Burke was
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`“instrumental” in “put[ting] [the tour] together.” (GX 12). Solis told Burke that Skydell was “really
`
`happy” the two were doing the tour and “he’s definitely interested in giving you . . . law work.”
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`(Id.) In May 2017, Burke asked Solis again about the prospective legal work: “[D]id we land,
`
`the . . . tuna?” (GX 38). At the direction of law enforcement, Solis replied that Skydell and 601W
`
`had agreed to retain Burke’s law firm for future tax appeal work. (Id.) On June 19, 2017, Skydell
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`
`
`9
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`

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`continued to ask Burke for assistance resolving the Amtrak permit issues and noted, “I’d like to
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`meet and see what business we can do too, I, you know, I want us to be a two-way street.” (GX
`
`50). Burke indicated he understood. (Id.) As a follow-up, Skydell emailed Burke with the pending
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`Amtrak permit issues. (GX 254). Burke called Lang to convey the continuing permit issues and
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`forwarded him Skydell’s email. (Dkt. 410 at 1661–63). Burke then told Skydell that he met with
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`Lang and that there was “a lot of progress” on the issues. (GX 55). Ultimately, in January 2018,
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`Skydell offered Burke’s law firm tax appeal work. (GX 124) (offering Burke’s firm work on the
`
`Sullivan Center because “we’re not forgetting about you”). They signed a contingent fee
`
`agreement in August 2018. (GX 445).
`
`ii. Water Department
`
`For the Old Post Office project to move forward, 601W also needed approvals from the
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`City of Chicago’s Water Department. (See Dkt. 409 at 1497). Solis emailed Burke about the
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`problem stating, “I think if we can take care of the water commissioner, we should be able to get
`
`the tax work and even get my consulting from you.” (GX 13). Burke responded “Good. Let me
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`take a look at it.” (Id.) Burke then met with former Water Department Commissioner Tom Powers,
`
`who contacted then-Water Department Commissioner Barrett Murphy about the approvals. (Dkt.
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`409 at 1514, 1519–20; GX 230). Powers told Murphy there was “heat” from City Hall, and
`
`specifically Burke, to get the approvals sorted. (Dkt. 409 at 1548). Powers testified that Burke’s
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`outreach was unusual and concerning because he was a “very powerful alderman.” (Id. at 1519,
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`1538). Murphy also testified that he understood Burke was “extremely intimidating” and to “make
`
`sure you could be as responsive as possible to any request that he had” so as not to face any
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`negative impacts. (Id. at 1549, 1578). Murphy then continued to update Powers—who relayed the
`
`information to Burke—on the water service progress. (See GX 235). In March 2017, Burke told
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`
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`10
`
`

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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 11 of 47 PageID #:13434
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`Solis he got the “ball teed up” for 601W to meet with Murphy. (GX 15). In turn, Murphy told
`
`Powers he will “figure something” out with 601W. (GX 470).
`
`iii. Class L Designation and TIF Funding
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`Further, the jury heard evidence that 601W sought TIF funds and a Class L designation
`
`from Burke’s Committee on Finance. (See e.g., Dkt. 408 at 1373–74). In October 2017, Solis told
`
`Burke that Skydell was seeking TIF funding. (GX 101). Burke expressed he was not “fond of the
`
`way [601W] had conducted themselves up until this point” in not yet retaining Klafter & Burke
`
`for tax appeal work. (GX 104). Since Burke served as the Chairman and thus controlled the agenda,
`
`he wished 601W “good luck getting [the TIF funding]” in front of the Committee on Finance. (Id.;
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`Dkt. 399 at 235:1–4). A few months later, Burke conceded that 601W’s legal business “would
`
`help” Burke’s efforts on both the Class L and TIF. (GX 129). Conveniently, after 601W agreed to
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`retain Burke’s law firm for tax appeal work, 601W sought and received the Class L designation.
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`(GX 441). This tax designation was worth approximately $100 million. (See GX 127). In
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`September 2018, after Klafter & Burke and 601W officially signed a contingent fee agreement,
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`the Committee on Finance and City Council also approved the TIF funds for the Old Post Office
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`project. (GX 447–48). Burke voted in favor of both. (GX 441, 448).
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`II.
`
`Trial and Post-Trial Background
`
`The trial spanned roughly six weeks. During trial, the Government called over 90 witnesses
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`and presented close to 150 recorded conversations. At the conclusion of the evidence and the
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`parties’ arguments, the Court read the jury 326 pages of instructions. (Dkt. 384). After deliberating
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`for approximately four days, the jury found Burke guilty of thirteen counts:
`
`• Count One (all Racketeering Acts 1–5): RICO, 18 U.S.C. § 1962(c)
`• Count Two: Bribery – Solicitation, 18 U.S.C. § 666(a)(1)(B)
`• Counts Three, Four, Seven, Eight, Nine, Fifteen, Sixteen, Nineteen: Travel Act, 18
`U.S.C. § 1952(a)(3)
`
`
`
`11
`
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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 12 of 47 PageID #:13435
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`• Counts Five and Eighteen: Attempted extortion, 18 U.S.C. § 1951(a)
`• Count Eleven: Bribery – Accepting, 18 U.S.C. § 666(a)(1)(B)
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`The jury acquitted Peter Andrews on all counts related to the Burger King episode, the only
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`episode in which he was named, and found Charles Cui guilty of five counts, including making
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`false statements to the FBI, federal program bribery, and the use of interstate commerce to further
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`such violations. Count Six—the only count in which Burke was acquitted—charged Burke and
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`Andrews with conspiring to commit extortion related to the Burger King episode.
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`At the close of the Government’s case, Burke filed a written motion for a judgment of
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`acquittal as to the charges relating to the Field Museum episode (Counts Eighteen, Nineteen,
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`Racketeering Acts 5(a) and (b)). (Dkt. 378); Fed. R. Crim. P. 29(a). After hearing oral argument,
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`the Court took the motion under advisement. (Dkt. 432 at 4367:15–20). On February 21, 2024,
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`Burke moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 on various
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`counts and for a new trial under Federal Rule of Criminal Procedure 33.5 (Dkt. 455). On June 5,
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`2024, the Court heard oral argument on the parties’ lengthy briefing. (See Dkt. 477).
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`DISCUSSION
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`I.
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`Rule 29 Motion for Judgment of Acquittal
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`a. Legal Standard
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`A court “must enter a judgment of acquittal of any offense for which the evidence is
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`insufficient to sustain a conviction” either after the government has closed its evidence or within
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`fourteen days after a jury has rendered a verdict. Fed. R. Crim. P. 29(a), (c)(1); United States v.
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`Garcia, 919 F.3d 489, 496 (7th Cir. 2019). A court will overturn the jury’s verdict only if, “after
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`viewing the evidence in the light most favorable to the government, the record is devoid of
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`5 Defendant Cui filed separate post-trial motions. (See Dkts. 448, 449). This opinion addresses only Defendant Burke’s
`motions.
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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 13 of 47 PageID #:13436
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`evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United States
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`v. Wrobel, 841 F.3d 450, 454 (7th Cir. 2016) (quoting United States v. Campbell, 770 F.3d 556,
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`571–72 (7th Cir. 2014)); see also United States v. White, 95 F.4th 1073, 1078 (7th Cir. 2024);
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`United States v. Orlando, 819 F.3d 1016, 1021 (7th Cir. 2016) (“A defendant faces an uphill battle
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`in challenging the sufficiency of the evidence.”); United States v. Torres-Chavez, 744 F.3d 988,
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`993 (7th Cir. 2014) (describing defendant’s challenge as a “nearly insurmountable hurdle”).
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`Further, courts “do not re-weigh the evidence or second-guess the jury’s credibility
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`determinations.” United States v. Taylor, 637 F.3d 812, 815 (7th Cir. 2011). “In short, if there is a
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`reasonable basis in the record for the verdict, it must stand.” White, 95 F.4th at 1078 (cleaned up).
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`b. Waiver
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`The Government argues that since Burke only raised a sufficiency challenge to the Field
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`Museum episode counts at the close of the Government’s case, he waived his ability to raise further
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`sufficiency arguments in his post-trial motions.6 (Dkt. 461 at 4, 34–36).
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`On December 12, 2023, the Government rested its case in chief. (Dkt. 430 at 4088:15–16).
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`Andrews then moved orally for a judgment of acquittal under Rule 29(a) “as to all elements of all
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`counts.” (Id. at 4089:14–18). Cui made the same oral motion for all counts in which he was charged
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`(Counts 12, 13, 14, 15, and 17). (Id. at 4090:14–17). Burke, however, moved for acquittal “on
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`charges relating to the Field Museum episode.” (Id. at 4091:2–5). The Court took all three motions
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`under advisement. (Id. at 4091:7) Burke’s counsel then requested oral argument and filed a written
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`motion, moving for acquittal under Rule 29(a) for counts relating to the Field Museum episode
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`(Counts Eighteen, Nineteen, Racketeering Acts 5(a)–(b)). (Dkt. 378). They specifically argued that
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`6 Specifically, the Government argues that Burke waived his challenges to the sufficiency of the evidence for Counts
`Two, Three, Four, Eleven, Fifteen, Sixteen, and Racketeering Acts 1, 2, and 4. (Dkt. 461 at 34–36).
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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 14 of 47 PageID #:13437
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`no rational jury could find that Burke’s statements constituted attempted extortion to obtain a
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`position from the Field Museum. (Dkt. 432 at 4357–60). The Court again took the motion under
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`advisement. (Id. at 4367). Defendant Andrews was the only defendant to orally renew his Rule 29
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`motion at the end of evidence. (Dkt. 439 at 4989). After the jury verdict, the Court set a 45-day
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`deadline for post-trial briefs and directed the Government to respond to Burke’s Rule 29(a) motion
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`in that schedule. (Dkt. 442 at 5203–06).
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`Though appellate waiver or forfeiture7 of sufficiency arguments has been heavily
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`addressed in this Circuit, there is a dearth of analysis in the context of waiver between Federal
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`Rule of Criminal Procedure 29(a) and (c) motions. The Court begins with the text of Rule 29. Rule
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`29(a) states that, “[a]fter the government closes its evidence or after the close of all the evidence,
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`the court on the defendant’s motion must enter a judgment of acquittal of any offense for which
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`the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
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`Under Rule 29(c), a defendant may “move for a judgment of acquittal, or renew such a
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`motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is
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`later.” Fed. R. Crim. P. 29(c). Importantly, the “defendant is not required to move for a judgment
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`of acquittal before the court submits the case to the jury as a prerequisite for making such a
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`motion.” Fed. R. Crim. P. 29(c)(3). The language of Rule 29(c) explicitly allows a defendant to
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`move for a judgment of acquittal in the first instance after a verdict. If the defendant already moved
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`during trial under Rule 29(a), then their subsequent post-trial motion is presumably a “renew[al]”
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`under Rule 29(c).
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`7 See United States v. Jacques, 345 F.3d 960, 962 (7th Cir. 2003) (distinguishing waiver from forfeiture and noting
`while “waiver is accomplished by intent, forfeiture comes about through neglect” (quoting United States v. Staples,
`202 F.3d 992, 995 (7th Cir. 2000))). Here, the Government is arguing purposeful waiver.
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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 15 of 47 PageID #:13438
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`The crux of the issue here is whether a defendant who first moved under Rule 29(a) and
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`then under Rule 29(c) waives all arguments he did not make in the Rule 29(a) motion. In other
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`words, when Burke made a strategic decision to only bring a Rule 29(a) motion as to the Field
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`Museum counts and did not raise a “general” challenge to the sufficiency of the evidence like his
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`co-defendants, did he lock himself into those same arguments in his subsequent Rule 29(c) motion?
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`The Court does not believe this argument is frivolous or can be as easily dismissed as Burke
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`argues. To begin, there is little case law distinguishing between Rule 29(a) and (c) motions. The
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`Court sees two interpretations of Rule 29(c) at issue. First, that a Rule 29(c) motion is a renewal
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`of, and thus limited by, the Rule 29(a) motion. A renewal is “the action of restoring or
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`reestablishing.” Renewal, Black’s Law Dictionary (11th ed. 2019). This definition signals that a
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`defendant could not expand outside of his previous Rule 29(a) motion when renewing it under
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`Rule 29(c). Practically speaking, Burke was aware of any perceived evidentiary insufficiencies at
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`the close of evidence and could have raised those challenges broadly, like his co-defendants. Yet,
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`he chose to specifically target the Field Museum charges. The general principle is that if a
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`defendant forgoes an opportunity strategically or knowingly, it is waived. See Jacques, 345 F.3d
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`at 962; United States v. Montgomery, 379 F. App’x 527, 530 (6th Cir. 2010) (“The specification
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`of grounds in the [Rule 29] motion is an indication that counsel has evaluated the record and has
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`these particular reasons for his motion.” (citing United States v. Dandy, 998 F.2d 1344, 1357 (6th
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`Cir. 1993))).
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`The waiver position finds some support in the reverse: that a broad Rule 29(a) challenge
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`protects the specific Rule 29(c) arguments made subsequently. See United States v. Facteau, 89
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`F.4th 1, 39 n.26 (1st Cir. 2023) (“Although appellants’ Rule 29(c) motion specifically challenged
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`[specific evidence], their Rule 29(a) motion asserted a general challenge to the sufficiency of the
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`Case: 1:19-cr-00322 Document #: 504 Filed: 06/21/24 Page 16 of 47 PageID #:13439
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`Government’s evidence on all counts. We consider this statement adequate to generally preserve
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`the issue of sufficiency of the evidence.”) (cleaned up)); United States v. Hammoude, 51 F.3d 288,
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`291 (D.C. Cir. 1995) (A “broadly stated” motion for acquittal “preserve[s] the full range of
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`challenges, whether stated or unstated, to the sufficiency of the evidence.”).
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`Otherwise, as Judge Oldham noted in his concurrence in the Fifth Circuit case of United
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`States v. Dubin, Rule 29’s concerns of notice and sandbagging arise. 27 F.4th 1021, 1034 (5th
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`Cir.), cert. granted, 143 S. Ct. 416 (2022), and vacated and remanded on other grounds, 599 U.S.
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`110 (2023). If a defendant could “belatedly object[]” to new issues using untimely Rule 29
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`motions, a criminal could “argue one legal theory to the jury, lose on that theory [then] . . . argue
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`a completely new theory after dismissal of the jury.” Id. By that point, “the defendant has nothing
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`to lose; the jury already convicted him. And he has everything to gain; if the court accepts his new
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`legal argument, he’s protected by the Double Jeopardy Clause.” Id. The concerns of piecemeal
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`litigation arise, and are validly present for the Government where, as here, Burke specifically
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`challenged the suff