Burke Filing

Case: 1:19-cr-00322 Document #: 455 Filed: 02/21/24 Page 1 of 42 PageID #:11960
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, )

) Case No. 19 CR 322
Plaintiff, )
)
v. )
) Judge Virginia M. Kendall
EDWARD M. BURKE, et al., )
)
Defendants. )
DEFENDANT EDWARD M. BURKE’S MOTION FOR

JUDGMENT OF ACQUITTAL AND FOR A NEW TRIAL
JENNER & BLOCK LLP LOEB & LOEB LLP

Charles B. Sklarsky Joseph J. Duffy
Kimberly Rhum Robin V. Waters
353 N. Clark Street 321 N. Clark Street, Suite 2300
Chicago, IL 60654 Chicago, IL 60654
Tel: (312) 222-9350 Tel: (312) 464-3100
[email protected] [email protected]
GAIR GALLO EBERHARD

Chris Gair
Blake Edwards
1 East Wacker Drive, Suite 2600
Chicago, IL 60601
Tel: (312) 600-4901
[email protected]
[email protected]
Attorneys for Edward M. Burke

TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................... 1
BACKGROUND ............................................................................................................. 2
LEGAL PRINCIPLES ................................................................................................... 3
I. Federal Rule of Criminal Procedure 29. .................................................. 3
II. Federal Rule of Criminal Procedure 33. .................................................. 5
ARGUMENT .................................................................................................................. 6
I. The Court Should Grant Judgment of Acquittal on the Field

Museum Counts and Related RICO Acts. ............................................... 6
A. Mr. Burke Did Not Attempt to Obtain “Property”

During the September 8th Phone Calls. ....................................... 8
B. No Rational Jury Could Have Found That Mr. Burke’s

Actions After the September 8th Phone Calls Were
Unlawful. ....................................................................................... 9
II. The Court Should Grant Judgment of Acquittal on The Pole

Sign Episode Counts and Related RICO Acts. ...................................... 11
A. The Government’s Evidence of “Official Action” On the

Pole Sign Episode Counts Involved Two Phone Calls
Referring Mr. Cui to Other Public Officials, Both of
Whom Denied Being Pressured By Mr. Burke. .......................... 14
B. The Government’s Evidence of “Official Action” On the

Pole Sign Episode Counts Fails As A Matter of Law. ................ 16
III. The Court Should Grant Judgment of Acquittal on the Old

Post Office Episode Counts and RICO Acts Solely Involving
Amtrak, and Grant A New Trial On the Remaining Counts
and Acts. ................................................................................................. 17
A. The Government’s Evidence of “Official Action” on the

Amtrak-Related Counts Involved A Phone Call And A
Meeting with Ray Lang, Who is Not a Public Official
Under Illinois Law. ...................................................................... 18
B. The Government’s Amtrak-Related Evidence of Official

Action Fails As A Matter of Law................................................. 21
i
TABLE OF CONTENTS CONTINUED
C. The Government’s Evidence of its Water Department Page

Theory of “Official Action” Involved Mr. Burke’s Phone
Call With A Former Public Official And Setting Up A
Meeting. ....................................................................................... 25
D. The Government’s Water Department Theory of

“Official Action” Fails As A Matter of Law. ................................ 28
E. The Court Should Grant Acquittals On Counts Three

and Four, and RICO Acts 1(c)-(d), And Order a New
Trial on Count Two and RICO Acts 1(a)-(b) and 2(a)-(b). .......... 31
IV. The Court Should Grant Judgment of Acquittal on Count

One, the Racketeering Conviction, or in the Alternative Grant
a New Trial. ............................................................................................ 35
ii
TABLE OF AUTHORITIES
Page
Federal Cases
Kotteakos v. United States,

328 U.S. 750 (1946) .................................................................................................. 6
McDonnell v. United States,

136 S. Ct. 2355 (2016) ..................................................................................... passim
Smith v. Massachusetts,
543 U.S. 462 (2005) .................................................................................................. 4
United States v. Cassese,

428 F.3d 92 (2d Cir. 2005) ........................................................................................ 5
United States v. Crittenden,

2022 WL 363857 (5th Cir. 2022) .............................................................................. 6
United States v. D’Amato,

39 F.3d 1249 (2d Cir. 1994) ...................................................................................... 5
United States v. Delay,

440 F.2d 566 (7th Cir. 1971) .................................................................................... 5
United States v. Ferguson,

246 F.3d 129 (2d Cir. 2001) ...................................................................................... 6
United States v. Garcia,

919 F.3d 489 (7th Cir. 2019) .................................................................................... 4
United States v. Griffin,

684 F.3d 691 (7th Cir. 2012) .................................................................................... 4
United States v. Jefferson,

289 F. Supp. 717 (E.D. Va. 2017) .................................................................... passim
United States v. Johnson,

592 F.3d 749 (7th Cir. 2010) .................................................................................... 5
United States v. Jones,

713 F.3d 336 (7th Cir. 2013) .................................................................................... 4
United States v. Lee,

919 F.3d 340 (6th Cir. 2019) .................................................................................. 13
iii
United States v. Morales,

902 F.2d 604 (7th Cir. 1990) .................................................................................... 6
United States v. Murphy,

406 F.3d 857 (7th Cir. 2005) .................................................................................... 4
United States v. Rahman,

34 F.3d 1331 (7th Cir. 1994) .................................................................................... 4
United States v. Reed,

875 F.2d 107 (7th Cir. 1989) .................................................................................... 6
United States v. Reed,

986 F.2d 191 (7th Cir. 1993) .................................................................................... 6
United States v. Robinson,

303 F. Supp. 2d 231 (N.D.N.Y. Jan 22, 2014) ......................................................... 6
United States v. Washington,

184 F.3d 653 (7th Cir. 1999) .................................................................................... 6
United States v. Williams,

81 F.3d 1434 (7th Cir. 1996) .................................................................................... 5
In re Winship,
397 U.S. 358 (1970) .................................................................................................. 4
Statutes
18 U.S.C. § 666 ............................................................................................................. 21
18 U.S.C. § 666(a)(1)(B) ................................................................................................. 3
18 U.S.C. § 1951(a) .................................................................................................. 3, 11
18 U.S.C. § 1962(c) ......................................................................................................... 3
18 U.S.C. § 1952(a)(3) .................................................................................................... 3
18 U.S.C. §§ 1961-68 ............................................................................................. passim
Court Rules
Fed. R. Crim. P. 29................................................................................................ passim
Fed. R. Crim. P. 29(a) .................................................................................................... 3
Fed. R. Crim. P. 29(c)................................................................................................. 3, 5
iv
Fed. R. Crim. P. 33......................................................................................................... 5
v
INTRODUCTION
Edward Burke was convicted at trial on a number of counts which, given the
Court’s instructions and the evidence, no rational jury could have found him guilty
beyond a reasonable doubt. Mr. Burke is entitled to judgment of acquittal on those
charges.
First, Mr. Burke is entitled to a judgment of acquittal on the Field Museum
Episode counts. No rational jury could have found that Mr. Burke attempted to extort
the Field Museum of property in the form of a full-time position for his goddaughter,
Ms. Gabinski. This Court aptly observed at the conclusion of the government’s case
that the Field Museum Episode is “an extremely odd attempt extortion count.” (TR.
4367). The Court’s skepticism was well founded. The Hobbs Act requires an attempt
to extort “property,” but there was no property here, only a potential job interview
with the museum, and one which was never requested by Mr. Burke.
Second, Mr. Burke is entitled to acquittal on each of the Pole Sign Episode
counts, because no rational jury could have sustained the official action element of
those convictions where Mr. Burke placed two telephone calls referring Mr. Cui to
public officials with knowledge of the relevant processes, each of whom explicitly
denied being pressured by Burke to take official action. In both cases, he simply asked
for someone to look at the situation, which is does not amount to official action.
Third, there was no evidence from which a rational jury could have found the
official action requirement of two of the components of the Post Office Episode
counts—Mr. Burke’s outreach to Amtrak and the Water Department—because both
1
instances involved permissible phone calls, meetings, and referrals that are not
official acts. Mr. Burke is entitled to acquittal on the standalone Amtrak charges, and
he should be granted a new trial on the remaining Post Office offenses because those
offenses involved four forms of official action—the two Class L and TIF votes and the
Amtrak and Water Department outreach—and there is no way of determining
whether the jury convicted him on these counts solely based on the votes on the Class
L tax break and TIF funding.
Fourth, Mr. Burke is entitled to judgment of acquittal on the racketeering
charges in Count One, or in the alternative is entitled to a new trial, because the
government failed to prove that Mr. Burke conducted or participated in a pattern of
racketeering activity involving two or more separate racketeering acts, particularly
in light of the counts as to which a judgment of acquittal is warranted.
Pursuant to Fed. R. Crim. P. 29(c), the Court should grant judgment of
acquittal on Counts One, Three, Four, Eleven, Fifteen, Sixteen, Eighteen, and
Nineteen. Pursuant to Fed. R. Crim. P. 33, the Court should grant Mr. Burke a new
trial on Count Two. Alternatively, the Court should also grant a new trial on Count
One.
BACKGROUND
Following a six-week jury trial, on December 21, 2023, the jury returned guilty
verdicts on thirteen of the fourteen counts of the superseding indictment against Mr.
Burke, and one verdict of not guilty on Count Six. Specifically, Mr. Burke was
convicted of:
2
Count One: Racketeering, 18 U.S.C. § 1962(c)

Acts 1(a)–(d) – Post Office
(a) state bribery – Amtrak, Water, Class L, TIF
(b) official misconduct – Amtrak, Water, Class L, TIF
(c) Travel Act (official misconduct, commercial bribery) – Amtrak
(d) Travel Act (official misconduct, commercial bribery) – Amtrak
Acts 2(a)–(b) – Post Office
(a) Travel Act (official misconduct, commercial bribery) – TIF
(b) official misconduct – TIF
Acts 3(a)–(g) – Burger King
Acts 4(a)–(c) – Pole Sign
Acts 5(a)–(b) – Field Museum
Count Two: Federal program bribery, 18 U.S.C. § 666(a)(1)(B) (Post Office –
Water Dept., Class L, TIF)
Count Three: Travel Act, 18 U.S.C. § 1952(a)(3) (Post Office – Amtrak)
Count Four: Travel Act, 18 U.S.C. § 1952(a)(3) (Post Office – Amtrak)
Count Five: Attempted extortion, 18 U.S.C. § 1951(a) (Burger King)
Count Seven: Travel Act, 18 U.S.C. § 1952(a)(3) (Burger King)
Count Eight: Travel Act, 18 U.S.C. § 1952(a)(3) (Burger King)
Count Nine: Travel Act, 18 U.S.C. § 1952(a)(3) (Burger King)
Count Eleven: Federal program bribery, 18 U.S.C. § 666(a)(1)(B) (Pole Sign)
Count Fifteen: Travel Act, 18 U.S.C. § 1952(a)(3) (Pole Sign)
Count Sixteen: Travel Act, 18 U.S.C. § 1952(a)(3) (Pole Sign)
Count Eighteen: Attempted extortion, 18 U.S.C. § 1951(a) (Field Museum)
Count Nineteen: Travel Act, 18 U.S.C. § 1952(a)(3) (Field Museum)
(Dkt. 392).
LEGAL PRINCIPLES
I. Federal Rule of Criminal Procedure 29.
Under Federal Rule of Criminal Procedure 29(a) and (c), a district court, upon
a defendant’s motion or on the court’s own initiative, “must enter a judgment of
acquittal of any offense for which the evidence is insufficient to sustain a conviction,”
either after the government has closed its evidence or after a jury has rendered a
verdict or been discharged. In applying Rule 29, the district court must determine
whether a reasonable jury considering the evidence in the light most favorable to the
government could have found each element of the charged offense beyond a
3
reasonable doubt. United States v. Jones, 713 F.3d 336, 340 (7th Cir. 2013); Cf. In re
Winship, 397 U.S. 358, 364 (1970) (the Due Process Clause protects a defendant from
conviction except upon proof “beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged”).
A “Rule 29 judgment of acquittal is a substantive determination that the
prosecution has failed to carry its burden.” Smith v. Massachusetts, 543 U.S. 462,
468 (2005). To prevail, a defendant “must show that no rational trier of fact could
have found that the government proved the essential elements of the crime beyond a
reasonable doubt.” United States v. Griffin, 684 F.3d 691, 694 (7th Cir. 2012). This
determination depends directly on the strength of the government’s evidence at trial.
United States v. Garcia, 919 F.3d 489, 496–97 (7th Cir. 2019). “[A] sufficiency of the
evidence standard does not require the defendant to demonstrate that no evidence at
all supports the conviction, but rather that the evidence cannot support a finding of
guilty beyond a reasonable doubt.” United States v. Rahman, 34 F.3d 1331, 1337 (7th
Cir. 1994). The government cannot satisfy its burden with a “mere modicum” of
evidence.” Id.
In evaluating the evidence, a defendant’s Rule 29 motion “calls on the court to
distinguish between reasonable inferences and speculation.” United States v. Jones,
713 F.3d 336, 340, 352 (7th Cir. 2013) (affirming judgment of acquittal where “[t]he
jury’s verdict . . . relied on several such speculative inferences”); see also, United
States v. Murphy, 406 F.3d 857, 861–62 (7th Cir. 2005) (affirming judgment of
4
acquittal under Rule 29(c) because “a vital link between the evidence and the charge
in the indictment [was] missing”).
Importantly, a court must grant a Rule 29 motion if the government’s evidence
gives “equal or nearly equal circumstantial support to a theory of guilt and a theory
of innocence,” because in that situation, “a reasonable jury must necessarily entertain
reasonable doubt.” United States v. Cassese, 428 F.3d 92, 98–99 (2d Cir. 2005); see
also United States v. Delay, 440 F.2d 566, 568 (7th Cir. 1971) (“Where the evidence
as to an element of a crime is equally consistent with a theory of innocence as with a
theory of guilt, that evidence necessarily fails to establish guilt beyond a reasonable
doubt.”) (emphasis added); United States v. Johnson, 592 F.3d 749, 755 (7th Cir.
2010) (“In this situation, the evidence is essentially in equipoise; the plausibility of
each inference is about the same, so the jury necessarily would have to entertain a
reasonable doubt.”); United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir. 1994)
(finding the government must “do more than introduce evidence [that is] at least as
consistent with innocence as with guilt”) (internal quotations omitted).
II. Federal Rule of Criminal Procedure 33.
Federal Rule of Criminal Procedure 33 permits a court to “vacate any judgment
and grant a new trial if the interest of justice so requires.” The decision to grant a
new trial is committed to the sound discretion of the trial judge. United States v.
Williams, 81 F.3d 1434, 1437 (7th Cir. 1996). Courts have interpreted Rule 33 to
require a new trial in a variety of situations in which trial errors or omissions have
5
jeopardized the defendant’s substantial rights. United States v. Reed, 986 F.2d 191,
192 (7th Cir. 1993); see also Kotteakos v. United States, 328 U.S. 750, 765 (1946).
A court may properly consider the credibility of the witnesses and may grant a
new trial if the verdict is so contrary to the weight of the evidence that a new trial is
required in the interest of justice. United States v. Washington, 184 F.3d 653, 657
(7th Cir. 1999); United States v. Ferguson, 246 F.3d 129, 133–34 (2d Cir. 2001);
United States v. Robinson, 303 F. Supp. 2d 231, 233 (N.D.N.Y. Jan 22, 2004) (trial
court did not abuse its discretion in granting motion for new trial where government
witness’ “dubious testimony [was] exceedingly weak support for the jury’s finding of
guilty.”); United States v. Crittenden, 2022 WL 363857,*2 (5th Cir. 2022).
In reviewing a motion for a new trial, the court must consider the weight of the
evidence and grant a new trial if that evidence “preponderates heavily against the
verdict, such that it would be a miscarriage of justice to let the verdict stand.” Id. at
657–58 (quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)); United
States v. Morales, 902 F.2d 604, 606 (7th Cir. 1990).
ARGUMENT
I. The Court Should Grant Judgment of Acquittal on the Field Museum

Counts and Related RICO Acts.
Mr. Burke was convicted in Count Eighteen and RICO Act 5(a) with attempted
extortion, which required proof beyond a reasonable doubt that Mr. Burke “(1)
knowingly [took] a substantial step toward committing extortion, (2) with the intent
to commit extortion.” (Dkt. 384, p. 309). The jury was instructed that “[t]he
substantial step must be an act that strongly corroborates that the defendant
6
intended to carry out the extortion.” Id. (emphasis added). Mr. Burke was also
convicted in Count Nineteen and RICO Act 5(b) with using a facility in interstate
commerce to promote his commission of extortion.
As a matter of law, a threat alone is not extortion unless it is designed and
intended to obtain property. 18 U.S.C. § 1951(b)(2) (“[t]he term ‘extortion’ means the
obtaining of property from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, or under color of official right”). Yet the
jury inexplicably convicted Mr. Burke of attempting to extort a full-time position at
the Field Museum (not the paid internship) for his goddaughter Molly Gabinski when:
(1) he did not know that there was a job at the time of the purported threat; (2) he
expressly said on tape to Field Museum President Richard LaRiviere that he did not
want a job or anything else for Ms. Gabinski; (3) the idea of offering Ms. Gabinski
anything was a subsequent creation of Field Museum staff; and (4) there was never
an offer of a job, only an interview. No rational trier of fact could have found beyond
a reasonable doubt that Mr. Burke knowingly and intentionally attempted to obtain
property from the Field Museum by means of extortion in these circumstances, much
less that the evidence “strongly corroborates” the government’s theory. 1 (Dkt. 384, p.
309).
1Mr. Burke incorporates the arguments previously raised in his Rule 29 Motion submitted on
December 12, 2023 prior to the start of jury deliberations. (Dkt. 378).
7
A. Mr. Burke Did Not Attempt to Obtain “Property” During the

September 8th Phone Calls.
Mr. Burke neither asked nor demanded that the Field Museum hire Ms.
Gabinski in his September 8th phone call with Ms. Bekken or during his phone call
with Mr. LaRiviere shortly thereafter.
In the Bekken call, he complained about not having heard back from the
museum, but did not ask for anything at all. (TR. 461–62; GX. 91T, p. 2). The call
ended with Ms. Bekken indicating that she would follow up with the president’s office
to find out what went wrong with the application process. Ms. Bekken testified that
Mr. Burke did not ask or demand that the Field Museum provide Ms. Gabinski with
a job (TR. 549), and that to her knowledge, Mr. Burke never asked the Field Museum
to provide a job or even a job interview for anyone. (TR. 555).
Mr. Burke spoke with Mr. LaRiviere a few minutes later. The tape recording
shows that: (1) Mr. Burke did not so much as ask that the museum hire Ms. Gabinski;
and (2) to the contrary, he told Mr. LaRiviere unequivocally that Ms. Gabinski was
not interested in a position, informing him “that ship has already left the dock”
because Mr. Burke had hired Ms. Gabinski himself. (TR. 623; GX. 92T, p. 2). Mr.
LaRiviere testified that there was no need for Mr. LaRiviere to do anything at all
after the call “[b]eyond finding out what happened” to Ms. Gabinski’s internship
application. (TR. 623–24). In fact, Mr. LaRiviere testified that at no point ever did
Mr. Burke ask, let alone demand, a job or even a job interview for Ms. Gabinski. (TR.
626, 658).
8
Because there was no ask for anything and no property at issue, the September
8th calls cannot amount to extortion.
B. No Rational Jury Could Have Found That Mr. Burke’s Actions

After the September 8th Phone Calls Were Unlawful.
At trial during its Rule 29 arguments and in closing, the government heavily
focused not on the allegedly extortionate calls on September 8th, but instead on
innocuous contacts in the succeeding days which it says somehow relate back to the
alleged September 8th extortion.
This theory does not avail the government at all. First of all, the job-interview
possibility raised by museum staff does not amount to “property” under the Hobbs
Act. “[P]roperty” must be “capable of passing from one person to another,” i.e., it must
be “obtainable” or “transferable.” Sekhar v. United States, 570 U.S. 729, 734 (2013);
see also Scheidler v. NOW, Inc., 537 U.S. 393, 410 (2003). An interview cannot be so
transferred to a third party.
Second, what matters is Mr. Burke’s intent when he made the supposedly
extortionate statements on September 8th. It makes no sense to contend that he could
be guilty for an intent that the evidence unequivocally shows he did not harbor at the
time he made the calls. The evidence demonstrated only that he was angry and
annoyed at the museum’s perceived snub, not that he wanted anything from the
museum.
And third, the notion that any of the follow-up events demonstrates his intent
to extort property through fear or anything else is fantastical. The government cited
an email of September 11th at 9:53 a.m., in which Mr. Burke’s assistant said: “I just
9
wanted to follow up regarding Molly Gabinski. She has not heard anything from the
Museum so the Alderman asked me to check in.” (TR. 414; GX. 295). This email says
absolutely nothing about any intent to obtain the interview for the paid position;
indeed, nobody on Mr. Burke’s side was even aware that the museum was considering
offering such an interview to her until three hours later. (TR. 609–10; GX. 294).
Similarly, the 9:53 a.m. email was nothing more than Mr. Burke closing the loop with
the museum on what happened to Ms. Gabinski’s original application. It too occurred
hours before anyone on Mr. Burke’s side had heard anything about a new possibility.
Even further afield is the government's reliance on Mr. Burke’s September
12th phone call with Ms. Gabinski’s mother (which it charged as the underlying use
of a facility in interest commerce under the Travel Act), in which Mr. Burke simply
passed along the information about the new coordinator position. (TR. 478–79, GX.
94). This says nothing at all about his supposed extortionate intent, nor could it
possibly serve as a means for promoting or establishing extortion.
Finally, the government pointed out in closing that Ms. Synowiecki sent a
September 12th email to the museum asking how Ms. Gabinski could apply for the
paid position. The government did not establish that this email was sent at the
direction of Mr. Burke, and if it was not, it cannot possibly bear on his intent. In any
case, it says nothing at all about an intent to extort. The Field Museum staff had
concocted the idea of offering this paid position on its own, and there was nothing
unlawful about inquiring how to apply for it.
10
No rational trier of fact could have found beyond a reasonable doubt that Mr.
Burke attempted to extort the Field Museum. A judgment of acquittal must therefore
be entered on Count Eighteen. A judgment of acquittal is also necessary on Count
Nineteen, as the predicate conduct did not, as a matter of law, constitute attempted
extortion in violation of § 1951(a), and Mr. Burke did not possess the specific intent
to promote his own commission of the offense of attempted extortion.
II. The Court Should Grant Judgment of Acquittal on The Pole Sign
Episode Counts and Related RICO Acts.
The Pole Sign Episode charges (Counts Eleven, Fifteen, and Sixteen, and RICO
Acts 4(a)–(c) in Count One) required proof beyond a reasonable doubt that Mr. Burke
either agreed to take, or did take, or acted with the intent to take, official action in
exchange for property tax appeal work. (Dkt. 384, pp. 39, 146, 152, 160, 236, 273,
285).
At trial, the Court provided the jury with a uniform definition for the official
action elements contained in the charged federal and state bribery offenses which
narrowly defined the official action element. (Dkt. 311, 320, 373, 384; TR. 4059–69,
4223–29). Specifically, the jury instructions recited the relevant statutory language
describing the quo of the particular federal and state bribery statutes charged, and
referred uniformly to these phrases as “official action.”2 The instructions provided
2 In particular, the jury instructions uniformly defined the following phrases describing the quos of the
federal and state bribery statutes charged: “in connection with some business, transaction, or series of
transaction” (federal program bribery, 18 U.S.C. § 666); “an act or function of a public officer or public
employee” (state bribery, 720 ILCS 5/33-1(e)); an act “related to the employment or function of a public
officer or public employee” (state bribery, 720 ILCS 5/33-1(d)); an “act” in his “official capacity” (official
misconduct, 720 ILCS 5/33-3(a)(4)); “conduct in relation to his employer’s or principal’s affairs”
11
that “official action” requires “a formal exercise of governmental power.” 3 The
instructions then defined official action as follows:
A public official engages in an “official action” when he uses his

official position to exert pressure on another official to perform an
official act, or to advise another official, knowing or intending that the
advice will form the basis for an official act by another official.
In addition, the government does not need to prove that the

government official had the power to or did perform the act for which he
was given or received something of value.
However, a public official does not take official action if he does

no more than set up a meeting, host an event, or call another public
official.
(Dkt. 384, pp. 39, 236, 273, 285) (emphasis added). These instructions were modeled
on the Seventh Circuit Pattern Jury Instructions, and were crafted to comport with
the constitutional limitations on official action articulated by the Supreme Court in
McDonnell v. United States, 136 S. Ct. 2355 (2016). (TR. 4059–69, 4223–29).
In McDonnell v. United States, the Supreme Court made clear that “typical”
phone calls and meetings do not qualify as official actions, nor do public officials’
“myriad decisions to refer a constituent to another official.” McDonnell, 136 S. Ct. at
2368, 2371. In fact, not even a public official’s expression of support for a particular
outcome of a matter constitutes official action, “as long as the public official does not
(commercial bribery, 720 ILCS 5/29A-1, A-2); and, “official action” (extortion under color of official
right, 18 U.S.C. § 1951(a)). (Dkt. 384, pp. 39, 170, 236, 273, 285).
3 The official action elements for all state and federal bribery charges were uniform with one exception.
In the official action instructions contained in the federal program bribery charges in Counts Two (Post
Office Episode) and Eleven (Pole Sign Episode), the instructions provided, in addition to the
requirement that the act involve a “a formal exercise of governmental power” that it must also be “a
formal exercise of governmental power on behalf of the City of Chicago.” (Dkt. 322, pp. 146, 236)
(emphasis added).
12
intend to exert pressure on another official or provide advice, knowing or intending
such advice to form the basis for an “official act.”’ Id. at 2371. In addition, the Court
held that the proper scope of the underlying subject matter of an “official action,”
must involve “a formal exercise of government power that is similar in nature to a
lawsuit before a court, a determination before an agency, or a hearing before a
committee[,]” and “must also be something specific and focused[.]” Id. at 2372
(internal quotations omitted).
In summary, the Supreme Court distinguishes between a public official
pressuring or advising another public official to take official action, and a typical
phone call, meeting, expression of support, or constituent referral. Post- McDonnell
decisions demonstrate that criminal pressure is exemplified by a public official’s
“repeated,” “heav[y],” or sustained involvement in pushing another public official to
take an official action, and characterized by actions including “continuous[]
monitor[ing],” numerous phone calls, in person meetings, inquiries, and requests.
United States v. Jefferson, 289 F. Supp. 3d 717, 742–43 (E.D. Va. 2017) (“if ‘exerting
pressure’ is to have any force, it must at least include repeated actions by a public
official to push and promote a project”).
On the other hand, when “the overwhelming weight of the government’s case
… was focused on constituent services” such acts do not constitute official action and
cannot form the basis of a bribery conviction. Jefferson, 289 F. Supp. at 740 (vacating
convictions on counts of conviction where government failed to prove official action
within the meaning of McDonnell, but denying relief on counts of conviction where
13
proof pressure was satisfied); see also, United States v. Lee, 919 F.3d 340, 359-360
(6th Cir. 2019) (affirming denial of motion for acquittal where defendant, a city
councilwoman, took extensive steps to intervene in an assault case which went
beyond “routine constituent services”).
A. The Government’s Evidence of “Official Action” On the Pole

Sign Episode Counts Involved Two Phone Calls Referring Mr.
Cui to Other Public Officials, Both of Whom Denied Being
Pressured By Mr. Burke.
Mr. Burke did only two things in connection with the Pole Sign: he spoke to
Building Commissioner Judy Frydland by phone and he spoke to Zoning
Administrator Patti Scudiero by phone. Neither action involved anything more than
making an anodyne phone call referring the matter to another official with knowledge
of the relevant processes. And neither involved any pressure at all.
On August 23, 2017, Mr. Burke received an email from Mr. Cui explained that
he had “applied to reuse the existing pole sign” but was “denied by zoning.” (TR. 2019–
21; TR. 4596). Mr. Cui asked: “Can you look into the matter and advise how to
proceed?” (TR. 2021; TR. 4596).4
On August 30, 2017, Mr. Burke asked his assistant Meaghan Synowiecki in a
recorded telephone call to contact Building Commissioner Judy Frydland regarding
“the Binny’s liquor store and the pole” to “see if she’d review it” and “see if there is
any way that they can uh, help him.” (TR. 2039–40; GX. 88). Ms. Synowiecki tried
reaching Frydland, who was not available. (TR. 4600).
4Mr. Burke did not answer Mr. Cui’s email regarding the pole sign, nor did he ever speak to Mr. Cui
regarding the pole sign.
14
Sometime thereafter, Ms. Frydland testified that Mr. Burke called her, and the
“sum and substance” of the telephone call was that Burke simply asked her to “look
into” the pole sign issue to see if there was something she could do to help with the
permit. (TR. 3542; 3509–10). During the call, which was not recorded, Mr. Burke
referred Mr. Cui to Ms. Frydland by providing her with Mr. Cui’s name and contact
information so she could speak with him regarding the matter. (TR. 3509–10). Ms.
Frydland testified that Mr. Burke did not pressure her or direct her to take any
particular action. (TR. 3542–43). Ms. Frydland testified that Mr. Burke simply asked
her to look into it, and then turned the matter over to her. (TR. 3543–44). Ms.
Frydland received calls like this “all the time[.]” (TR. 3542–43).
After looking into the issue and determining there was nothing she could do,
Ms. Frydland recommended to Mr. Burke’s assistant, Ms. Synowiecki, that Mr. Burke
refer the matter to Zoning Administrator Patricia Scudiero, who may be able to assist.
(TR. 3538–39; GX. 95).5 Ms. Scudiero testified that she had a single telephone call
with Mr. Burke in which he asked her to “look at the zoning review” but did not tell
her what he wanted her to do, nor did he “pressure” her to take any particular action.
(TR. 3728, 3744). Ms. Scudiero agreed that aldermen called “often” on these kinds of
zoning matters such that the Burke call was “not unusual.” (TR. 3740–41). Ms.
Scudiero did not take any action with respect to the pole sign, and Mr. Burke never
followed up with Ms. Scudiero. (TR. 3730–31, 3737–38).
5Ms. Frydland told Ms. Synowiecki that she had “a bit of a contentious relationship” with Scudiero,
so “it would come better from you.” (TR. 3538–39; GX. 95).
15
B. The Government’s Evidence of “Official Action” On the Pole

Sign Episode Counts Fails As A Matter of Law.
These two calls are insufficient to constitute “pressure” under McDonnell as a
matter of law. The calls were, instead, routine calls to assist an individual with the
city bureaucracy—a classic form of constituent service.
At the outset, both Ms. Frydland and Ms. Scudiero explicitly denied being
pressured by Mr. Burke. (TR. 3542–43; TR. 3744). These denials, from the
government’s own witnesses, thoroughly negate the “pressure” theory of official
action. The government never so much as hinted that there was any reason to
disbelieve Ms. Frydland or Ms. Scudiero’s testimony.
Nor did Mr. Burke undertake the kind of sustained involvement, “pushing,”
“continuous monitoring,” or other repeated conduct that exemplifies impermissible
pressure. Jefferson, 289 F. Supp. at 742–43. Mr. Burke did not request updates or
demand explanations from Ms. Frydland or Ms. Scudiero when they determined
nothing could be done to assist Mr. Cui with the pole sign. Mr. Burke did not
continuously monitor Ms. Frydland and Ms. Scudiero, or make repeated phone calls
or requests for in person meetings. Mr. Burke did not demand that either official take
any particular action—he simply asked them to look into the matter to see if they
could help. At most, Mr. Burke expressed support for Mr. Cui’s situation and the
grant of the pole sign permit, which is not criminal pressure under McDonnell.
The fact that Mr. Burke referred Mr. Cui to Ms. Frydland by providing her
with Mr. Cui’s contact information, thereby removing himself from the conversation,
16
also underscores that Mr. Burke’s outreach was akin to a permissible constituent
referral, rather than an unlawful attempt to pressure Ms. Frydland.
Ms. Frydland and Ms. Scudiero’s actions following the outreach from Mr.
Burke also indicate that they were not pressured by him. Neither official attempted
to bend the relevant zoning and building rules, or otherwise make any exceptions to
the rules in order to grant Mr. Cui a permit in light of Mr. Burke’s outreach. Both
officials adhered to their respective rules, determined that nothing could be done, and
moved on. Indeed, though Ms. Scudiero testified that it would have been her common
practice to follow up with an alderman who reached out concerning a zoning issue,
she testified she had no recollection of following up with Mr. Burke after looking into
the matter and confirming that there was no workaround for Mr. Cui’s pole sign
issue—further underscoring that she did not feel pressured by Mr. Burke’s mere
phone call. (TR. 3737–38).
Contrary to the government’s theory and the jury’s inexplicable verdict, Mr.
Burke did not try to “convince” Ms. Frydland to do anything. (TR. 4650). There was
no “pressure” within the meaning of McDonnell as a matter of law. Rather, Mr. Burke
did nothing but “refer a constituent to another official” (McDonnell, 136 S. Ct. at 2368,
2371), which is not illegal.
III. The Court Should Grant Judgment of Acquittal on the Old Post
Office Episode Counts and RICO Acts Solely Involving Amtrak, and
Grant A New Trial On the Remaining Counts and Acts.
At trial, the government argued that Mr. Burke solicited and agreed to accept
tax work from the developer of the Old Post Office, Harry Skydell of 601W, in
exchange for four forms of his official action: approvals from Amtrak, approvals from
17
the City of Chicago Water Department, a Class L designation, and tax increment
financing (“TIF”). Specifically, in Count One RICO Acts 1(a)–(b), the government
pursued all four official action theories in support of the state bribery and official
misconduct charges. (Dkt. 30, pp. 29–30; TR. 4641–43). In Count One RICO Acts 1(c)–
(d), and Counts Three and Four, the official misconduct, commercial bribery, and
Travel Act charges relate only to the Amtrak official action theory. (Dkt. 30, pp. 30–
31, 40–41; TR. 4567–70, 4574–75). In Count One RICO Acts 2(a)–(b) the government
pursued the TIF official action theory (Dkt. 30, pp. 31–32; TR. 4643); and in Count
Two, the government pursued the Water Department, Class L, and TIF official action
theories (excluding only the Amtrak theory). (Dkt. 30, p. 39; TR. 4563).
The evidence at trial was insufficient to establish official action on the Amtrak
and Water Department theories beyond a reasonable doubt, requiring acquittals on
the standalone Amtrak counts. For the remaining counts, since the government failed
to prove two key theories of official action, and the remaining counts freely mixed
those unsound theories with the Class L and TIF theories of official action, Mr. Burke
is entitled to a new trial in the interests of justice.
A. The Government’s Evidence of “Official Action” on the Amtrak-

Related Counts Involved A Phone Call And A Meeting with Ray
Lang, Who is Not a Public Official Under Illinois Law.
The evidence at trial showed that on several occasions Mr. Burke learned from
Harry Skydell, the Old Post Office developer, and Alderman Solis that Amtrak was
obstructing the redevelopment process. (TR. 1587–89; GX. 5T, p. 11, 18; TR. 1590–
91; GX. 7T, p. 1; TR. 1908; GX. 50T, p. 2; TR.1732; GX. 63T, pp. 1–2). Mr. Solis told
Mr. Burke in substance that he could get tax business for his firm if he assisted the
18
developer in getting Amtrak to cooperate with the developer. (TR.1722–23; GX. 38T,
p. 2; TR. 1590–91; GX. 7T, p. 1). Mr. Burke also bragged on several occasions about
his relationship with a member of the Amtrak board, Jeff Moreland. (TR. 1587–89;
GX. 5T, p. 18; TR. 1735; GX.77T, p.1). The only thing asked of Mr. Burke, or that
was even contemplated, was helping to obtain cooperation from Amtrak.
Beyond a lot of talk, only three things actually happened between Mr. Burke
and Amtrak. First, on December 21, 2016, Mr. Burke set up and hosted a meeting at
his City Hall office with Ray Lang, the President of Chicago Union Station Company.
(TR. 1646–49). During the meeting, there were a number of topics that Mr. Burke
and Mr. Lang discussed, one of which involved the Old Post Office. (TR. 1648).
Regarding the Old Post Office, Mr. Lang testified that Mr. Burke said: “[H]e was
considering representing the Old Post Office with his law firm and he was doing some
research about the issues surrounding the development of that building, and he was
curious about our role in working with the developers on the stabilization work at the
post office.” (Id.) Mr. Lang testified that Mr. Burke’s “focus” about the Old Post Office
during the meeting was that “he was considering representing them.” ( Id. at 1650).
In response, Mr. Lang told Mr. Burke about his “own personal history with the
Old Post Office, about the consent decree, and the lawsuit from the previous owners,
and that the new owners were embarking on aggressive redevelopment[.]” (TR. 1648).
Mr. Lang explained to Mr. Burke that the redevelopment “involved a lot of
stabilization work at the building around the plenum, and the underside of the
building and the ventilation vents.” (Id. at 1648–49). Mr. Lang also discussed with
19
Mr. Burke Amtrak’s “permits to enter.” (Id. at 1649). At one point, Mr. Lang also
offered to give Mr. Burke a tour of Chicago Union Station (TR. 1657), which was
undergoing a separate, unrelated redevelopment.
During the meeting, Mr. Burke took notes. (TR. 1710–11). Mr. Lang testified
that Mr. Burke did not insist that Lang do anything regarding Amtrak’s permit to
enter process. (Id.) Mr. Burke listened to Mr. Lang, and said, “I got it, okay, I
understand.” (TR. 1711). Lang testified that Mr. Burke did not “deliver any
ultimatum” to Lang, or “threaten” Lang, or “tell [Lang] what to do[.]” (TR. 1714). In
addition, Mr. Lang testified that he “didn’t do one thing differently” because of Mr.
Burke’s outreach. (Id.) Following the meeting, Mr. Lang sent an email to another
official, writing: “My meeting with the alderman went very good the other day. He
indicated he has been approached by 601 West to represent them but has not decided
to do so yet. He was aware of the PTE issue but didn’t seem concerned about it or
not.” (TR. 1653; TR. 1712–13; GX. 227).
Second, on February 10, 2017, Mr. Lang took Mr. Burke and Solis on a tour of
Chicago Union Station. (TR. 1657; GX. 12T). Mr. Lang testified that he gives “lots of
tours” and that this one was not unusual. (TR. 1714–15). Mr. Solis testified that Mr.
Burke did not “put the arm on Mr. Lang” during the tour, and agreed that Burke
simply “told a lot of war stories” during the tour. (TR. 4158–59).
Third, on June 22, 2017, Mr. Burke called Mr. Lang (TR. 1718), following up
on an email from Mr. Skydell regarding the Amtrak issue. (TR. 1908; GX. 50T; TR.
1663-34; TR. 1908-09; GX. 51T; GX. 254). Mr. Lang testified that Mr. Burke said he
20
was concerned about the continuing problems with permits to enter. (TR. 1661). Mr.
Lang testified that nothing Mr. Burke said in the call “stands out” in his memory,
and that he did not threaten him or direct him to take any action. (TR. 1716).
Following the telephone call, which was not recorded, Mr. Burke forwarded Mr.
Skydell’s email to Mr. Lang, writing: “As per our conversation.” (TR. 1661–63; GX.
254). Mr. Lang testified that all Mr. Burke did was forward him an email, and that
he “didn’t do anything at all differently after [he] got that email[.]” (Id.) In addition,
Mr. Burke never followed up with him after sending the email. ( Id.)
B. The Government’s Amtrak-Related Evidence of Official Action

Fails As A Matter of Law.
The government’s Amtrak theory of official action fails for several reasons. At
the outset, Amtrak is not a City of Chicago-related entity over which Mr. Burke
possessed formal governmental power as an alderman. (TR. 1486–87). It is also
undisputed that Amtrak employees such as Mr. Lang and Mr. Moreland are not
public officers or employees under the various Illinois state predicate acts of bribery. 6
(TR. 5186–87). As a result, Mr. Burke could neither take official action in his own
personal capacity with respect to Amtrak, nor could he (under the “pressure” theory
of official action) take official action by pressuring Amtrak employees—because those
individuals are not public officials under Illinois law.7 (TR. 1486–87).
6See Jury Instructions, Dkt. 384, p. 41 (“The term ‘public officer’ under Illinois law is a person who is
elected to office pursuant to statute to discharge a public duty for any political subdivision of the State
of Illinois. The term ‘public employee’ under Illinois law is a person who is authorized to perform an
official function on behalf of, and is paid by, any political subdivision of the State.”).
7 Because Mr. Burke was not charged under 18 U.S.C. § 666 with Amtrak-related conduct, it is
irrelevant if Amtrak employees are considered public officials under federal law.
21
The result is the same with respect to the commercial bribery predicate
underlying RICO Acts 1(c)–(d) and in Counts Three and Four, because the Court
ordered a uniform definition of “official action” for each of the state predicates
requiring the formal exercise of governmental power consistent with McDonnell—
thereby dissolving any meaningful difference between the traditional state bribery
predicate and the commercial bribery predicate.8 (Dkt. 385, p. 39).
Even if Amtrak employees had been public officials under the state statutes,
which they were not, the evidence did not demonstrate beyond a reasonable doubt
that Mr. Burke intended to pressure, agreed to pressure, or did pressure either
individual within the meaning of McDonnell.
First, the evidence did not demonstrate that the underlying subject matter of
the Amtrak issues facing the Old Post Office developers was “specific and focused” or
“similar in nature to a lawsuit before a court, a determination before an agency, or a
hearing before a committee.” McDonnell, 136 S. Ct. at 2372. The concerns facing the
developers appeared to relate to Amtrak’s permit to enter process in general, rather
than a need for assistance concerning specific Amtrak permits. See e.g., TR. 1710
8It is notable that Mr. Burke was convicted under the commercial bribery predicates with respect to
Amtrak, while he was acquitted of the traditional bribery predicate. Given the consistency in the proof
required for both predicates, the inconsistency in the verdicts suggests that the jury may have
misunderstood the instructions, further underscoring the basis of Mr. Burke’s Rule 29 motion.
Moreover, the fact that Mr. Burke was convicted of official misconduct concerning Amtrak while he
was acquitted of bribery concerning Amtrak when those statutes have similar standards of proof
suggests that the jury may have understood the statute as a mere gratuity offense (given the statute’s
use of the word “reward”), rather than an offense involving bribery. As Mr. Burke argued pretrial, the
underlying RICO and the Travel Act predicates must involve bribery. See 18 U.S.C. § 1961(1)
(“racketeering activity” means “bribery” chargeable under state law); 18 U.S.C. § 1952(b) (“unlawful
activity” means “bribery” that is “in violation of the laws of the State in which committed or of the
United States”). If the jurors interpreted the official misconduct statute as being satisfied by a mere
gratuity rather than a bribe, that is yet another basis on which the jury’s verdict cannot stand.
22
(Lang’s meeting with Burke involved explaining the permit-to-enter process). Mr.
Skydell initially referred to general “problems” with Amtrak, and a desire for better
“cooperation[.]” (GX. 5T, pp. 12, 18). In June of 2017 when Mr. Skydell forwarded Mr.
Burke a more detailed email about the “primary issues” with Amtrak, that email
similarly detailed issues concerning the overall permitting process, such as the
frequency of submission of permit to enter applications, the time frame for the
issuance of a permit, the fees associated with permits, and other general complaints
about Amtrak’s permitting processes. (GX. 254).
When Mr. Skydell later thanked Mr. Burke for his outreach to Amtrak, Skydell
thanked Burke for “opening up … the passageway” to “some normal relations”—
describing the changes at Amtrak as “attitudinal,” and explaining that he was
promised “cooperation” and “better response time” from Amtrak. (GX. 75T, pp. 1–2).
These conversations demonstrate that the Amtrak issues facing the Old Post Office
were broad, amorphous, and centered around processes and attitudes rather than
specific issues similar to a lawsuit as required by McDonnell.
Second, and more importantly, there was no evidence that Mr. Burke intended
to take, agreed to take, or took any official action with respect to those issues within
the meaning of McDonnell. With respect his contacts with Mr. Lang, Mr. Burke’s
conduct fell well within the bounds of the permissible contacts such as phone calls,
meetings, and constituent services excluded from the definition of official action
under the jury instructions.
23
Mr. Burke had only three contacts with Mr. Lang involving the Old Post
Office—a December 2016 meeting, the February 2017 tour, and the June 2017 phone
call and email. None of these, on the government’s evidence came close to constituting
impermissible pressure. (TR. 4539). At the first informational meeting, it was clear
from Mr. Lang’s testimony that Mr. Burke simply listened to understand the problem.
The second was the standard tour given of Union Station.9 And in the third, he merely
passed on what the developer had told him. This is the stuff of typical services
provided by public officials—passing on concerns to people in a position to deal with
them.10
Mr. Burke’s offer to reach out to his personal friend Jeff Moreland at Amtrak
similarly fails to demonstrate that he intended to improperly “pressure” Mr.
Moreland. To the contrary, Mr. Burke simply explained to Mr. Skydell that if the Old
Post ran into a problem, Mr. Moreland could be “helpful” (GX. 5T, p. 11), and that in
light of his personal relationship, Mr. Burke could connect Mr. Skydell to him. This
represents a classic constituent service in the form of a potential referral—not an
agreement to improperly pressure another public official.11 For example, in United
9The February 10, 2017, tour of Union Station Mr. Burke took with Mr. Lang and Mr. Solis does not
appear to have related to the Old Post Office, as Mr. Burke simply “told a lot of war stories” during
the tour and did not ask Mr. Lang to do anything with respect to the Old Post Office. (TR. 4158–59).
10These actions could barely be understood to rise to the level of a permissible expression of support,
let alone impermissible “pressure.” See e.g., Jefferson, 289 F. Supp. at 738–39 (reversing bribery
conviction where defendant wrote a letter on congressional letterhead to the U.S. embassy in London
in support of a visa application, and also made a phone call to the embassy, because the conduct was
a mere “expression of support” for the application, which is not criminal under McDonnell).
11Similarly, the fact that Mr. Burke, when prompted by Mr. Solis, agreed to “follow up” with his
Amtrak contacts (GX. 7T, 38T) is not evidence of any agreement or intention to improperly pressure
those individuals.
24
States v. Jefferson, the district court found that the defendant’s agreement to work
to obtain financing from Ex-Im Bank (a federal agency), did not amount an official
act because even though the defendant agreed to “assist” with obtaining the
financing, “testimony at trial [did] not clarify what Jefferson meant by assistance.”
Jefferson, 289 F. Supp. at 739. The district court also noted there was “no evidence
that Jefferson agreed to exert pressure on public officials as required in McDonnell,”
“even if it was implied that his role as a Congressman would assist in the effort.” Id.
The district court found that the defendant’s actions “amounted to nothing more than
making introductions and expressing support, both of which are not criminal under
McDonnell.” Id. at 739.
None of Mr. Burke’s actions or statements constitute proof beyond a reasonable
doubt that Mr. Burke intended, took, or agreed to take official action. As a result, the
Court should grant judgment of acquittal on Counts Three and Four which are
predicated on the Amtrak official action theory, as well as RICO Acts 1(c)–(d).
C. The Government’s Evidence of its Water Department Theory of

“Official Action” Involved Mr. Burke’s Phone Call With A
Former Public Official And Setting Up A Meeting.
Mr. Burke’s allegedly “official” action in connection with the Water
Department consisted of a single phone and setting up a meeting. On March 9, 2017,
Mr. Solis called Mr. Burke, and informed him that the Old Post Office “has an issue
with the water department, and they need to get the water commissioner to sign off
on something.” (TR. 1511–12; GX. 13T, p. 1). Mr. Solis explained that he would
forward an email he received concerning the issue, noting “it’s a little bit complicated,
so you can look at it.” (Id.) Mr. Solis then said, “I think if we can take care of the water
25
commissioner, we should be able to get the tax work and even get my consulting from
you.” (Id.) Mr. Burke responded, “Good. Let me take a look at it.” ( Id.)
After receiving the email from Mr. Solis, which detailed the Old Post Office
water service issues (GX. 230), Mr. Burke called Solis back, and stated: “It’s rather
complicated. I don’t know how a layman can understand it.” (TR. 1512; GX. 14T, p.
1). Mr. Burke suggested that Old Post Office developers should “bring Tom Powers
in, who used to be the commissioner” and was working in the private sector
engineering similar projects. (Id.) Mr. Burke explained: “Nobody knows the uh, the
regs and ordinances or the people that’ll have to make the decisions better than him.”
(Id.) Mr. Solis suggested a meeting with Mr. Powers, and Mr. Burke replied: “Yeah,
if it’s okay with you, I’ll put this in his hands, and he’ll be able to sort through it uh,
quicker than Johnny wrote the note.” (Id.) Mr. Solis asked Mr. Burke to set up a
meeting, and Burke agreed. (Id. at pp. 1–2). Mr. Solis added “[t]hen we’ll meet with
the commissioner.” (Id. at 2).
The next day, on March 10, 2017, Mr. Burke’s assistant forwarded the email
to Tom Powers, writing, “[b]elow is information Alderman Burke would like to speak
to you about[,]” and asked if Mr. Powers could give Burke a call. (TR. 1513–14; GX.
230). Mr. Powers responded to the email, writing: “Of course[.]” (TR. 1517). Mr.
Powers testified that sometime after receiving the email, he spoke with Mr. Burke by
telephone, and “the conversation was there were some challenges with some technical
aspects of the Old Post Office redevelopment, and he was asking my opinion on how
to move forward.” (Id.) Mr. Powers testified that the totality of the conversation
26
involved Mr. Burke asking, “Do you have advice on this water situation[?]” and Mr.
Powers responding, “Let me call Barrett Murphy and see.” (TR. 1532). Mr. Powers
testified that Mr. Burke never tried to intimidate, threaten, or otherwise be
aggressive with him. (TR. 1529–30). Nor did Mr. Burke tell Mr. Powers to “put the
arm on Barrett Murphy” regarding the water situation. (TR. 1532).
Mr. Powers then reached out Water Commissioner Murphy. (TR. 1520–21). Mr.
Powers told Murphy that he had received a call from Mr. Burke, who was concerned
about some issues at the Old Post Office redevelopment. (TR. 1521). Murphy
suggested that Mr. Powers should “get in front of it.” (Id.) Mr. Murphy testified that
during the call, Mr. Powers did not provide any specifics concerning the water issues,
did not make any “requests,” and was merely giving Murphy a “heads up.” (TR. 1572–
73).
Mr. Murphy testified that during the call, Mr. Powers said there was “heat”
from “City Hall.” (TR. 1570). Mr. Powers left “City Hall” undefined, and Mr. Murphy
understood “City Hall” to mean the Mayor’s office—though he testified that Powers
had specifically mentioned that Mr. Burke was “interested in” it. (TR. 1547–48, 1570).
Mr. Murphy testified that he understood “heat” to mean “pressure to finally get this
building back on the tax rolls, get it productive, and that there would be a lot of—you
know, you want to make sure that we worked as expeditiously as possible to assist
the developer in bringing water service in.” (TR. 1548). However, Mr. Murphy
testified that the call from Mr. Powers did not cause him to do anything differently
27
than he otherwise would have done (TR. 1572–73), and that Mr. Burke never did
anything to intimidate him concerning the Old Post Office project. (TR. 1561).
In the meantime, on March 20, 2017, Building Commissioner Judith Frydland
sent Mr. Murphy and Alderman Solis an email, writing:
Buildings, Law, and planning have been meeting regularly with the
developers of the Old Post Office. They have some water service issues
they have been trying to work out … However, they have hit some
roadblocks that they need to discuss at a higher level. I am happy to set
up the meeting here at DOB if that is helpful.
(TR. 1550–51; GX. 235). Mr. Murphy testified that Greg Prather (the Old Post Office
general contractor) had also reached out to his office to set up an appointment. (TR.
1552). The outreach to the Water Department culminated in the setting of a March
22, 2017, meeting between Water Department officials and the Old Post Office
contractors, including Mr. Prather. (TR. 1553; GX. 515). Mr. Murphy testified that it
was actually Commissioner Frydland’s email that “spurred” him into action to hold
the meeting. (TR. 1574).
Mr. Murphy ultimately attended two Old Post-office related meetings, the
purpose of which were to “determine how we could best bring in the new water service
to the building.” (TR. 1553). After the March 22, 2017 meeting, Mr. Murphy sent Mr.
Powers a text, saying that he had a meeting and that they were working through the
issues. (TR 1554; GX. 470).
D. The Government’s Water Department Theory of “Official

Action” Fails As A Matter of Law.
No rational jury could have concluded that Mr. Burke’s telephone call to a non-
public official, Tom Powers, to ask Mr. Powers his opinion on how to handle technical
28
aspects of the Old Post Office’s water service issues, constituted official action under
the jury instructions.
First, it is inescapable from the evidence that Mr. Burke was not pushing any
particular resolution of the water service issues. Indeed, he confessed to not
understanding them.12 It is bizarre to claim that a public official who has no
resolution of an issue in mind is unlawfully pressing for a particular resolution.
Making the government’s case doubly bizarre, everyone agrees that Mr. Burke simply
asked Mr. Powers for advice on how to handle the situation. And, as a result, the only
thing that Mr. Murphy did was to attend a pair of meetings. This is not “pressure”
under McDonnell.
As is permissible under McDonnell, Mr. Burke referred the matter to someone
with the proper expertise. See GX. 14T (Burke: “I’ll put this in his [Powers’] hands[.]”).
This is exactly like one of the “myriad decisions to refer a constituent to another
official” that is permissible under McDonnell—though here Mr. Powers is a former
public official. McDonnell, 136 S. Ct. at 2368, 2371.
Mr. Powers also confirmed that Mr. Burke did not impermissibly pressure him
to take any action, refuting the government’s theory. (TR. 1529–30). Instead, Mr.
Burke simply asked Powers for his advice in connection with the complicated water
12 It is undisputed that the water service issues were extremely complicated. See e.g., TR. 1569
(Comn’r Murphy testifying that the water service issues were the “most complicated” he had ever dealt
with in his career). When Mr. Burke viewed the email Mr. Solis forwarded to him regarding the water
issues, Mr. Burke explained that he did know how a “layman” ( i.e., a non-engineer) would understand
it. (GX. 14T). In addition, Mr. Murphy testified that when Mr. Powers talked to him, Powers did not
provide any “specifics” from Mr. Burke concerning the water service. (TR. 1573). Given this complexity,
these issues, at least to Mr. Burke, were not “specific and focused” within the meaning of McDonnell.
29
service email he received—which is not “pressure” to take a particular action. In turn,
it was Mr. Powers who suggested that he would reach out to the then-Water
Commissioner, Barrett Murphy. (TR. 1519).
Ultimately, a meeting was set up between the Old Post Office general
contractors and Mr. Murphy’s office, though Murphy testified it was not the outreach
from Mr. Powers that “spurred” the meeting. (TR. 1574). But even if Mr. Burke was
the catalyst of the meeting, under McDonnell setting up a meeting is not an official
act. In other words, no one contemplated that Mr. Burke should do anything improper
to obtain a resolution of the water issues.
The government is sure to point out Mr. Murphy’s testimony that Mr. Powers
used the term “heat” from “City Hall” regarding the water service, but that does not
compel a different result because Powers was unequivocal that Mr. Burke did not
pressure him to take any particular action. The fact that Mr. Powers may have
characterized Mr. Burke’s outreach as “heat” does not speak to Mr. Burke’s
intentions, because Mr. Burke never asked or suggested that Mr. Powers put any
“heat” on Mr. Murphy. At most, Mr. Burke may have expressed general support for
resolving the water service issues, which is not an official act under McDonnell. See
Jefferson, 289 F. Supp. at 737 (no official action where defendant simply made
“encouraging statements” about a technology project during a meeting with a U.S.
general and never “ordered” the general to admit those products for testing at the
U.S. Army installation).
30
As set forth below, because the Water Department theory of official action fails,
but it served as a basis for several counts of conviction, the Court should order a new
trial.
E. The Court Should Grant Acquittals On Counts Three and Four,

and RICO Acts 1(c)-(d), And Order a New Trial on Count Two
and RICO Acts 1(a)-(b) and 2(a)-(b).
The Court should grant acquittals on the counts of conviction solely predicated
on the Amtrak theory of official action: Counts Three and Four, and RICO Acts 1(c)-
(d) (Dkt. 30, pp. 30–31, 40–41; TR. 4567–70, 4574–75), because no rational jury could
have concluded based on the evidence adduced at trial that Mr. Burke intended to
take, agreed to take, or did take, official actions with respect to Amtrak, as narrowly
defined by the Court’s jury instructions and the strictures of McDonnell.
The should also grant a new trial on Count Two, the federal program bribery
charge in violation of 18 U.S.C. § 666, in which government pursued a mixed theory
of official action—the Water Department, Class L, and TIF official action theories.
(Dkt. 30, p. 39; TR. 4563). This is appropriate for several reasons. First, because the
verdict form did not differentiate between the three forms of official action, the jury’s
verdict may well have been based solely on conduct involving the Water Department
which is not criminal.
Second, the government’s arbitrary exclusion of the Amtrak-related theory of
official action—which undergirded the vast majority of the Old Post Office evidence
and recordings presented at trial but did not involve Burke’s official action—raises
legitimate questions that the jury may well have been unable to separate the
31
intertwined evidence, relying on the discredited Amtrak theory to convict Burke on
Count Two.
Third, the government’s evidence of its Class L and TIF-related theories of
official action was exceedingly weak, such that the interests of justice weigh heavily
in favor of retrial. Multiple witnesses testified that the unanimous City Council votes
in favor of the Class L and TIF incentives were a virtual foregone conclusion based
on the nature of the City’s deal with the Old Post Office developers and the fact that
the Class L and TIF incentives were a mayoral priority to a powerful Mayor Emanuel.
See e.g., TR. 254–57 (Prof. Mixon testifying that the city council was a “compliant
rubber stamp” under Mayor Emanuel and the Class L and TIF votes were passed
with “no dissenting vote”); TR. 1401–05, 1416–20, 1425–27 (Comn’r David Reifman
testifying that the entire basis for the City’s redevelopment agreement depended on
the passage of a Class L; the Mayor and Refiman were supportive of the incentive
from the start; the Class L “sailed through” city council; and the Mayor sponsored the
TIF which was not a “big deal” to get through the Finance Committee); TR. 1837,
1856–58 (lawyer Mariah DiGrino testifying concerning the Post Office’s agreement
with the City, which predated Mr. Burke’s involvement, that it was “explicitly
understood among everyone that the Class L incentive would be necessary for the
rehabilitation”; and, Mayor Emanuel was actively involved in the project); TR. 4098–
99, 4193–96, 4200–01 (alderman Daniel Solis testifying that the Old Post Office was
a “key project” for Mayor Emanuel; the Class L was unanimously adopted without
32
opposition; Solis had no doubt the Class L would pass; the TIF deal was done deal
before the summer of 2018, and Solis knew it would pass unanimously, which it did).
This evidence substantially undermines the government’s argument that
Burke voted for the Class L and TIF matters in exchange for legal business. Under
Rule 33, the court must consider the weight of the evidence and grant a new trial
when the evidence “preponderates heavily against the verdict, such that it would be
a miscarriage of justice to let the verdict stand.” Reed, 875 F.2d at 113. Counsel
submit that the weight of the evidence here—the discredited Amtrak and Water
Department theories combined with the weakness of the government’s evidence on
Class L and TIF theories—heavily weighs against the verdict.
Fourth, the Supreme Court is scheduled to hear oral arguments in Snyder v.
United States on April 15, 2024, a case in which the Supreme Court is set to decide
whether 18 U.S.C. § 666 criminalizes mere gratuities, or whether bribery involving a
quid pro quo is required. (S.Ct., No. 23-108). Here, though the government
represented at the eleventh hour that it was abandoning the gratuity theory on the
18 U.S.C. § 666 charges in Count Two, the Court rejected Mr. Burke and Mr. Cui’s
efforts to clarify the jury instructions so that the jury would be explicitly instructed
that a quid pro quo is required. (TR. 4243-52; TR. 4313-16; Dkt. 375). Given the
Supreme Court’s certiorari grant and the composition of this Supreme Court—which
has repeatedly limited the scope of federal public corruption law—there is a strong
possibility that the Supreme Court will limit the scope of § 666 and decide that jury
33
instructions like ones given here which could permit a jury to convict on a gratuity
theory require the grant of the new trial.
The potential that Mr. Burke was convicted on a gratuity theory rather than a
bribery theory on Count Two under 18 U.S.C. § 666 is not an academic concern.
Mr. Burke executed contingency fee agreements in connection with the Old Post
Office developers in the fall of 2018, well after the conduct underlying three of the
official action theories presented by the government—Amtrak, Water Department,
and Class L. The jury may have concluded on Count Two that Mr. Burke was provided
legal business in the fall of 2018 as a gratuity for those limited actions, rather than
in explicit exchange. For all these reasons, Mr. Burke submits that the grant of a new
trial on Count Two is warranted.
For similar reasons, the Court should also grant a new trial on RICO Acts 1(a)–
(b), in which the government pursued all four official action theories in support of the
state bribery and official misconduct charges. (Dkt. 30, pp. 29–30; TR. 4641–43).
These convictions contained undifferentiated forms of official action which included
the invalid Amtrak and Water theories. Considering the weight of the evidence and
the serious risk that the jury convicted on an official action theory was not criminal,
counsel submit that it would be a miscarriage of justice to let the verdict on these
RICO Acts stand.
Finally, the Court should grant a new trial on RICO Acts 2(a)–(b), which, at
least at face value, appear to relate only the TIF official action theory. (Dkt. 30, pp.
31–32; TR. 4643). But this arbitrary separation of the evidence poses two issues.
34
First, because the TIF evidence was intertwined with evidence and argument of the
other forms of invalid official action (Amtrak and Water), and the evidence that Mr.
Burke voted on the TIF exchange for legal business was weak, the interest of justice
weigh in favor of new trial. Second, the government’s inclusion of the TIF official
action theory in RICO Acts 1 and 2 demonstrates that the acts are not sufficiently
“separate” under the “pattern of racketeering activity” element in Count One to
constitute separate Acts. (Dkt. 384, p.36). For these reasons, a new trial is also
warranted with respect to RICO Acts 2(a)-(b).
IV. The Court Should Grant Judgment of Acquittal on Count One, the
Racketeering Conviction, or in the Alternative Grant a New Trial.
The “pattern of racketeering activity” element of Count One required proof
beyond a reasonable doubt that Mr. Burke committed at least two racketeering acts
which were “related to each other” and had “continuity between them” but which were
also separate acts. (Dkt. 384, p.30, 36).
As set forth above, (1) the Pole Sign racketeering act failed; (2) the Field
Museum racketeering act failed; (3) the Old Post Office racketeering acts based solely
on the Amtrak theory of official action failed; and (4) Mr. Burke is entitled to a new
trial on Old Post Office RICO Acts 1(a)-(b) and 2(a)-(b).
This leaves only Burger King Episode racketeering Act 3(a)-(g)—which cannot
satisfy the “pattern of racketeering activity” element’s requirement of two “separate”
acts. The Court should therefore grant a motion for acquittal on Count One on the
grounds that no rational juror could have found the pattern of racketeering element
35
beyond a reasonable doubt. Alternatively, the Court should grant a new trial on
Count One.
Dated: February 21, 2024 Respectfully submitted,
JENNER & BLOCK LLP LOEB & LOEB LLP
By: /s/ Charles B. Sklarsky By: /s/ Joseph J. Duffy

Charles B. Sklarsky Joseph J. Duffy
Kimberly Rhum Robin V. Waters
353 N. Clark Street 321 N. Clark Street, Suite 2300
Chicago, IL 60654 Chicago, IL 60654
Tel: (312) 222-9350 Tel: (312) 464-3100
GAIR GALLO EBERHARD
By: /s/ Chris Gair

Chris Gair
Blake Edwards
1 East Wacker Drive
Suite 2600
Chicago, IL 60601
Tel: (312) 600-4901
[email protected]
[email protected]
Attorneys for Edward M. Burke
36

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Case: 1:19-cr-00322 Document #: 455 Filed: 02/21/24 Page 1 of 42 PageID #:11960

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, )

DEFENDANT EDWARD M. BURKE’S MOTION FOR

JENNER & BLOCK LLP LOEB & LOEB LLP

GAIR GALLO EBERHARD

Attorneys for Edward M. Burke

LEGAL PRINCIPLES ................................................................................................... 3

I. Federal Rule of Criminal Procedure 29. .................................................. 3

II. Federal Rule of Criminal Procedure 33. .................................................. 5

I. The Court Should Grant Judgment of Acquittal on the Field

A. Mr. Burke Did Not Attempt to Obtain “Property”

B. No Rational Jury Could Have Found That Mr. Burke’s

II. The Court Should Grant Judgment of Acquittal on The Pole

A. The Government’s Evidence of “Official Action” On the

B. The Government’s Evidence of “Official Action” On the

III. The Court Should Grant Judgment of Acquittal on the Old

A. The Government’s Evidence of “Official Action” on the

B. The Government’s Amtrak-Related Evidence of Official

TABLE OF CONTENTS CONTINUED

C. The Government’s Evidence of its Water Department Page

D. The Government’s Water Department Theory of

E. The Court Should Grant Acquittals On Counts Three

IV. The Court Should Grant Judgment of Acquittal on Count

Kotteakos v. United States,

McDonnell v. United States,

United States v. Cassese,

United States v. Crittenden,

United States v. D’Amato,

United States v. Delay,

United States v. Ferguson,

United States v. Garcia,

United States v. Griffin,

United States v. Jefferson,

United States v. Johnson,

United States v. Jones,

United States v. Lee,

United States v. Morales,

United States v. Murphy,

United States v. Rahman,

United States v. Reed,

United States v. Reed,

United States v. Robinson,

United States v. Washington,

United States v. Williams,

18 U.S.C. § 666 ............................................................................................................. 21

18 U.S.C. § 666(a)(1)(B) ................................................................................................. 3

18 U.S.C. § 1951(a) .................................................................................................. 3, 11

18 U.S.C. § 1962(c) ......................................................................................................... 3

18 U.S.C. § 1952(a)(3) .................................................................................................... 3

18 U.S.C. §§ 1961-68 ............................................................................................. passim

Fed. R. Crim. P. 29................................................................................................ passim

Fed. R. Crim. P. 29(a) .................................................................................................... 3

Fed. R. Crim. P. 29(c)................................................................................................. 3, 5

Fed. R. Crim. P. 33......................................................................................................... 5

beyond a reasonable doubt. Mr. Burke is entitled to judgment of acquittal on those

First, Mr. Burke is entitled to a judgment of acquittal on the Field Museum

counts—Mr. Burke’s outreach to Amtrak and the Water Department—because both

Amtrak and Water Department outreach—and there is no way of determining

L tax break and TIF funding.

Fourth, Mr. Burke is entitled to judgment of acquittal on the racketeering

government failed to prove that Mr. Burke conducted or participated in a pattern of