IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT LEE COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, Plaintiff,

Vs. RITA A. CRUNDWELL, Defendant.

No.

12 CF 167

MOTION TO DISMISS

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Now comes Defendant, by her attorney, Robert J. Thompson, Lee County Public Defender, and moves the Court to Dismiss all counts of the Indictment filed herein and, in support of which, states, 1. The Defendant is charged with 60 counts of Class X Theft of governmental property in excess of One Hundred Thousand Dollars ($100,000.00) on numerous specific occasions between January 19, 2010 and April 16, 2012, inclusive. 2. Pursuant to 725 ILCS 5/114-1(a)(2), (a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds: (2) The prosecution of the offense is barred by Sections 3-3 through 3-8 of the Criminal Code of 1961, as heretofore and hereafter amended.

3. Section 3-4 of the Criminal Code states, (a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if that former prosecution: (1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction;

(c) A prosecution is barred if the defendant was formerly prosecuted in a District Court of the United States or in a sister state for an offense that is within the concurrent jurisdiction of this State, if that former prosecution: (1) resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began.

The Defendant contends that Illinois' collateral estoppel statute applies in the instant matter, specifically sections 3-4 (a) (1) and (c) (1), and that pursuant to this statute further prosecution must be barred. 4. The Defendant has entered into a Plea Agreement in the Northern District of Illinois United States District Court, Case Number 12 CR 50027, in which Defendant was sentenced to 235 months in Federal prison on a conviction of Wire Fraud. This sentence was ordered on February 14, 2013. That Plea Agreement, which was entered November 14, 2012, states that the Defendant "from at least as early as December 18, 1990, and continuing to April 17, 2012...knowingly devised and intended to devise a scheme to defraud and obtain more than $53,000,000 from the City of Dixon, Illinois..." 5. The Plea Agreement and conviction in Federal court includes all acts and dates that are contained within the State's Bill of Indictment in the instant matter. The State's indictment charges Class X Theft of governmental property in excess of One Hundred Thousand Dollars ($100,000.00) on numerous specific occasions between January 19, 2010 and April 16, 2012. The Federal matter covers these dates and more in charging Defendant with defrauding the City of Dixon from at least as early as December 18, 1990, and continuing to April 17, 2012.

In the course of entering the Federal plea agreement on November 14, 2012, the Honorable Philip G. Reinhard, U.S. District Judge presiding over the Federal indictment, did inquire, "Is any of the stipulated conduct or relevant conduct a part of the allegations in the state proceeding?" The Federal prosecutor replied, "I believe that all the counts of theft that are alleged against her in Lee County are the same conduct that is alleged to have occurred throughout the scheme of fraud in this case." The Court continued, "But that conduct you're going to ask that I consider ultimately if she pleads guilty in the sentencing in this case. Is that correct or not?" The prosecutor, "It's all...the scheme to defraud encompasses all the money she took. They've alleged that she took a porition of that money, so ultimately, I guess, yes." (Portion of November 14, 2012 transcript attached as Exhibit A). 6. Section 3-4 of the Illinois Criminal Code prohibits any prosecution by the State's Attorney if facts necessary to convict have been conclusively determined by a prior prosecution. The Defendant has been indicted in Federal court for all acts contained in the State's indictment. The Defendant has pleaded guilty to those acts and the Defendant has been sentenced for those acts in Federal court. Furthermore, the Federal prosecutor and the judge presiding over the Federal indictment have commented on record that the acts alleged in the Federal case are one and the same with the acts alleged in the state case. This is collateral estoppel. Collateral

estoppel is a requirement of due process, and it is a part of the Fifth Amendment's guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436 (1970).

7.

The doctrine of collateral estoppel, which bars relitigation of a decided question,

applies to criminal as well as civil proceedings. People v. Grayson, 58 I11.2d 260; People v.

Armstrong, 56 I11.2d 159; People v. Haran, 27 I1l.2d 229, 232. This was also noted in Ashe v. Swenson, 397 U.S. 436, 25 L.Ed.2d 469, 475, 90 S.Ct. 1189, where, in the course of describing
the doctrine, the United States Supreme Court said:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of Federal criminal law at least since this Court's decision more than 50 years ago in

United States v. Oppenheimer, 242 U.S. 85,161 L.Ed. 161, 37 S.Ct. 68, 3 A.L.R. 5161.' As cited by, People v. Borchers, 67 I11.2d 578, 367 N.E.2d 955 (1977).
(Emphasis supplied). Where the state and federal laws are framed to protect the same social interests, and where federal and state government prosecutions of a criminal act coincide, then prosecution by one sovereignty satisfies the need of the other. See People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). 8. In the instant matter we are presented with a competent adjudication of the Federal case which was properly presented and which is conclusive of the state's case by collateral estoppel. The "issue of ultimate fact," whether Defendant had the intent to defraud and deprive the City of Dixon permanently of its money, has been decided. Further, both the state and federal laws

under which the Defendant has been charged are framed to protect the same social interests and the federal prosecution has fully addressed punishment, deterrence and restitution thereby
satisfying the state's sovereignty requirements. 9. Should the State choose to argue that the cases are different, its only choice is to rely on

the difference in the names of the charges themselves and the fact that the federal case requires a

showing of the use of wire transmission where the state case doesn't. This position ignores the issue of ultimate fact. The Federal indictment charges Wire Fraud and the state indictment charges Theft. The only issue is the Defendant's intent. In the federal case, the Defendant's intent is presented as to whether she had a scheme and intent to defraud the City of Dixon. In the State case, it is presented as to whether she had the wrongful intent to deprive the City of Dixon permanently of the use and benefit of its money. The issue of ultimate fact is the same. "The Federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. . ." Sealfon v. United States, 332 U.S. 575, 579 (1948). "Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings ..." Ashe v. Swenson, 397 U.S. 436, 25 L.Ed. 2d 469, 90 S.Ct. 11189 (1970), followed by, Illinois Supreme Court in, People v. Borchers, 67 I11.2d 578, 367 N.E.2d 955 (1977). While the pleading books in federal court may look different from those in state court, the Defendant is charged with the same ultimate conduct of stealing from the City of Dixon in both courts. 10. In People v. Borchers, a case strikingly similar to the instant matter, the Defendant, a government employee, was charged with Mail Fraud in federal court and Theft in state court. As an Illinois State Representative, Mr. Borchers had executed two vouchers for payment of secretarial services for a shared secretary whom he had no intentions of paying. When the payments on the vouchers were delivered, the secretary signed them and turned them into her employer, who was a co-defendant of Borchers. The defendant and the co-defendant shared in the money obtained for the secretarial services that were invoiced but which they did not earn. In November of 1974, both individuals were charged in Federal court with Mail Fraud by using

the mails in furtherance of a scheme to defraud. 67 Ill.2d 578, 367 N.E.2d 955 (1977). After Representative Borchers' Federal trial, the Sangamon County State's Attorney charged him by indictment with Theft in April of 1975. Borchers was found guilty after a trial in the State court. Reversing the State court conviction of Representative Borchers, the Illinois Supreme Court agreed with the Defendant in that "the only contested issue in both trials was whether [Borchers] had the required criminal intent. In the Federal trial the question was whether he had a scheme and intent to defraud the State of Illinois...and in the State trial the question was whether he had the wrongful intent to deprive the State of Illinois permanently of the use and benefit of the money." Id. The Court did not grant any consideration to the fact that Mail Fraud has an element of proof, the use of the mail, that wasn't present in the state's Theft case, which did not require a showing of the use of the mail. The Illinois Supreme Court further agreed that the evidence presented in each prosecution on the issue of intent was the same and that the fraudulent intent that had to be shown in both cases was the same. In other words, since the verdict in the Federal prosecution decided the issue of fraudulent intent, the issue was also settled so far as the State prosecution would be concerned, and thus the State was barred from prosecuting further. Finally, the issue of using the mail in the federal case versus using deceptive techniques in the State case was deemed hypertechnical. Id. In distinguishing Borchers from the instant matter, the State may assert a traditional argument of collateral estoppel that requires disposition of an ultimate issue in favor of the defendant before the doctrine can be applied to the defendant's benefit in a subsequent prosecution. In other words, that because Mr. Borchers was acquitted in federal court, then the

issue of intent had been decided and couldn't be litigated again under Illinois' collateral estoppel statute, and that Ms. Crundwell's conviction in federal court disqualifies her from a collateral estoppel argument. However, the statute doesn't read that way. The fact that Ms. Crundwell was convicted in federal court applies specifically in the application of Section 3-4. The Court need only look at the plain language of the statute to determine that the instant matter is also subject to dismissal by estoppel. Both subsections of Section 3-4 relied upon herein state that the when the former prosecution "resulted in either a conviction or an acquittal" then the collateral estoppel statute applies when the defendant meets the other criteria listed. The Defendant meets criteria for both subsections (a) (1) and (c) (1). 11. The fact pattern in Borchers is analogous to the instant matter. Here, the federal question is whether Ms. Crundwell had the required criminal intent to scheme and defraud the City of Dixon, and in the state case the question is whether she had the wrongful intent to deprive the City of Dixon permanently of the use and benefit of its money. Both issues are treated the same under Section 3-4 of the Criminal Code in that the prosecution in the State case should be barred since it is for the same conduct and follows a previous prosecution for the same offense. 12. Ms. Crundwell is charged with Wire Fraud in Federal court and Theft in state court. The difference between the defendant in Borchers and the Defendant in the instant matter, other than Borchers federal acquittal, is Ms. Crundwell is charged with Wire Fraud and not Mail Fraud, as was Mr. Borchers. This is of no consequence. "The wire fraud statute is identical to the mail fraud statute except that it speaks of communications transmitted by wire." United

States v. Frey, 42 F.3d 795, 797 (3d Cir. 1994).

The issue taken from Ms. Crundwell's separate indictments is whether she had the required criminal intent to defraud and deprive the City of Dixon permanently of the use and benefit of its money. It is hypertechnical to argue that the issue is divided between the two courts because one prosecution accuses Ms. Crundwell of defrauding by wire and the other accuses her of defrauding by exercising unauthorized control over the city's property. The fraudulent intent that must be shown in both cases remains the same and the state's subsequent prosecution is for the same offense as the federal prosecution. In finding that collateral estoppel barred further prosecution of the defendant in Borchers, our Supreme Court stated, "it can be said here that the two records, excepting, of course, proof of use of the mails, are nearly interchangeable... With a few minor exceptions the testimony [would be] the same... Viewing the questions realistically and set in a practical frame we consider that the questions were the same." 67 I11.2d 578, 367 N.E.2d 955 (1977). Consequently, the record of the Defendant's Plea Agreement in Federal court can only be
construed as interchangeable with the facts the State alleges and hopes to prove in the State's

case, which is the subsequent prosecution. Per the federal prosecutor in response to inquiry by the court, "...all the counts of theft that are alleged against her in Lee County are the same conduct that is alleged to have occurred throughout the scheme of fraud in [the federal] case." Viewing this matter "realistically and set in a practical frame" the questions to be presented in either case would have to be considered the same, just as they were in People v. Borchers. 13. Relying on the analysis above and applying Section 3-4 of the Criminal Code, this court should dismiss the State indictment on statutory grounds. Additionally, and under the same analysis above, the defendant's indictment in the state case is subject to dismissal on grounds of Double Jeopardy under the Fifth Amendment to the United States Constitution and

Article I, Section 10 of the Constitution of the State of Illinois. "The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment's guarantee against double jeopardy." Ashe v. Swenson, 397 U.S. 436 (1970). In answering that question, the U.S. Supreme Court stated, "We do not hesitate to hold that it is." Id. The Fourteenth Amendment imposes on the States the standards of the Double Jeopardy Clause of the Fifth Amendment, Benton v. Maryland, 395 U.S. 784 (1969), and because the Double Jeopardy Clause incorporates collateral estoppel as a constitutional requirement, the state's indictment in the instant matter should be dismissed under the argument presented. WHEREFORE, the Defendant respectfully moves this Court to Dismiss the State's Indictment.

Respectfully submitted,

Robert J. Thompson Attorney for Defendant

Robert J. Thompson Lee County Public Defender 309 South Galena Avenue Dixon, IL 61021 815-284-5239

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS WESTERN DIVISION. UNITED STATES OF AMERICA, Plaintiff, v. RITA A. CRUNDWELL, Defendant. ) ) ) ) ) ) ) ) ) Docket No, 12 CR 50027

Rockford, Illinois Wednesday, November 14, 2012 9:00 o'clock a.m.

REPORT OF PROCEEDINGS BEFORE THE HONORABLE PHILIP G. REINHARD APPEARANCES:

11 12 13 14 15 For the Defendant: 16 17 18 19 20 Court Reporter: 21 22 23 24 25 Susan G. Bloom 7757 Somerset Drive, 60152 Marengo, Illinois (815) 923-4104 Also Present: MR. PAUL E. GAZIANO MS. KRISTIN J. CARPENTER Federal Defender Program (202 W. State Street, Suite 600 Rockford, Illinois 61101) MS. TRACI FEGRE Pretrial Services For the Government: HON. GARY S. SHAPIRO Acting United States Attorney (327 S. Church Street, Rockford, IL 61101) by MR. JOSEPH C. PEDERSEN MR. SCOTT PACCAGNINI Assistant U.S. Attorneys

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

THE CLERK: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Crundwell.

12 CR 50027, USA v. Rita

MR, PEDERSEN: Good morning, Your Honor. Joe Pedersen and Scott Paccagnini on behalf of the United States. THE COURT: Good morning. MR. GAZIANO: Good morning, Your Honor, Paul

Gaziano and Kristin Carpenter of the Federal Defender Program here on behalf of Ms. Crundwell, who stands to my right. THE COURT: All right. Good morning.

This matter is set for a status, and I see a plea agreement on my desk, and there was one on my, a draft on my desk this morning when I returned from vacation, so I presume that that's what's going to happen. The matter is going to be a plea of guilty this morning. MR. PEDERSEN: That's correct, pursuant to the plea agreement. THE COURT: All right. Now, I know the

Marshals Office has said something to people who've come in to attend this proceeding, make sure that there's no device that anyone has that's on to record or to record any of the proceedings or to photograph or video any part of the proceedings. In addition,

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

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all cell phones must be turned off.

I don't want to

be interrupted during the course of this proceeding. So, with that, people have been warned, and the Marshals Office will take appropriate action if something happens in contrary to my order. Bear with me just a minute. I haven't

been here for a couple weeks, and so I have to get materials before me relating to this matter. (Brief pause.) THE COURT: All right. I'm ready to proceed.

This is her first appearance on the criminal matter before me? I think it is.

MR. GAZIANO: Actually, I think we had an appearance back in -- well, that was -THE COURT: end of it, So, you are Rita Crundwell; is that correct? DEFENDANT CRUNDWELL: Yes, Your Honor. THE COURT: This matter has been set today for a plea of guilty, if that's what you choose to do in this case. I just want to make sure before I It could have been on the civil

start the plea proceeding that that's what you intend to do this morning; is that correct? DEFENDANT CRUNDWELL: Yes, Your Honor.

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

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THE COURT: You have discussed this, I would presume, thoroughly with your lawyers in the case? DEFENDANT CRUNDWELL: Yes, THE COURT: And this also includes a forfeiture allegation in the indictment, and that forfeiture allegation would be admitted as well; is that correct? DEFENDANT CRUNDWELL: Yes, Your Honor. THE COURT: I have looked over the draft plea agreement that had been placed on my desk this morning, and I have a couple questions before we proceed with the normal plea proceeding. First of all, I'll address Mr. Pedersen, There is stipulated conduct as I saw in Paragraph 7 of the plea agreement; is that correct? MR. PEDERSEN: That's correct.

THE COURT: And I'm also aware just by reading the newspapers that there's a matter pending in state court, I guess is that Lee County? MR. GAZIANO: That's Lee County. THE COURT: Is any of the stipulated conduct or relevant conduct a part of the allegations in the state proceeding? MR. PEDERSEN: I believe that all the counts

of theft that are alleged against her in Lee County

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

are the same conduct that is alleged to have occurred 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 throughout the scheme of fraud in this case. THE COURT: All right. I'm just trying to --

ultimately, at the sentencing hearing, you're going to ask me to consider conduct that is before a judge in the state court. MR, GAZIANO: MR. PEDERSEN: No. Well, the scheme to defraud

that's alleged in the indictment began in 1990 and went all the way through to her arrest. The Lee

County State's Attorney's Office has filed charges against her relating to, I believe, a shorter time period, maybe a two-year period. remember the exact dates. THE COURT: But that conduct you're going to I'm not -- I don't

ask that I consider ultimately if she pleads guilty in the sentencing in this case. Is that correct or not? MR. PEDERSEN: It's all -- the scheme to They've

defraud encompasses all the money she took.

alleged that she took a portion of that money, so ultimately, I guess, yes. THE COURT: All right. That's what I'm

trying to figure out. that, too.

I want her to be clear on

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