Duff guilty plea stymied
Prosecutors call bid `pure fluff,' but judge may still accept offer
January 7, 2005
A surprise bid by politically connected businessman James M. Duff to plead guilty to multimillion-dollar fraud charges fell through Thursday when prosecutors vehemently objected, saying his offer was "pure fluff" because he wasn't admitting to the charged wrongdoing.
The change in plea could still take place Friday, though, after U.S. District Judge Elaine Bucklo instructed lawyers in the case to return to her courtroom then.
Duff, whose family has held fundraisers for Mayor Richard Daley, is scheduled to go on trial Jan. 20 with his mother and five others on charges of setting up phony women- and minority-owned businesses to improperly obtain tens of millions of dollars in city contracts over a dozen years.
Duff declined to comment as he walked past a horde of cameras and reporters in the lobby of the Dirksen U.S. Courthouse. Outside, a car pulled up and Duff jumped inside, covering his face.
The turn of events Thursday was likely to be a disappointment for Duff. He has gone public with his desire to plead guilty just two weeks before a jury is scheduled to be picked at a trial in which he might still be a reluctant participant.
What unfolded Thursday in Bucklo's courtroom was highly unorthodox--prosecutors trying to block a defendant from pleading guilty to every count he faced.
That led to speculation among lawyers with knowledge of the case that the government, for strategic reasons, doesn't want to try the case without Duff, allegedly the chief player, in the courtroom as a defendant.
But during Thursday's nearly two-hour hearing, prosecutors argued strenuously that Duff wasn't admitting guilt to obtaining the contracts by fraud and other central issues.
Duff's written proposal "doesn't plead to the crime that's charged," said Assistant U.S. Atty. David Buvinger. "It sets up its own scheme and maybe pleads to that."
The government raised concerns that Duff's real aim was to purposely enter a legally insufficient plea that could later be challenged.
But Duff's lawyers, Terence Campbell and Mark Rotert, disputed those characterizations, saying their client didn't need to admit every single allegation in the indictment, but rather the essential elements of the crimes charged.
"There's a fair amount of the government crying wolf here," Campbell said.
The 30-page document drafted by the defense--Duff's so-called factual basis for the guilty plea--wasn't made public Thursday because the plea didn't go forward.
Bucklo hinted she might question Duff on each count to satisfy herself whether he was admitting to the charged wrongdoing.
Among the biggest disputes between the two sides was the extent of losses from the alleged fraud scheme. Duff's lawyers contend the city acknowledged it didn't lose a dime, while the government has put the loss at $100 million, the gross value of the contracts obtained by the family-run businesses.
Duff is attempting to plead guilty "blind," without reaching an agreement with prosecutors and without agreeing to cooperate with them.
Campbell and Rotert indicated in court that Duff wanted to plead guilty to avoid the expense of a long trial as well as to win a reduction in his sentence by accepting responsibility.
But the prosecution team--Assistant U.S. Attorneys Buvinger, Stephen Andersson and Charles Ex--disputed that Duff has accepted responsibility.
"This is pure fluff," Andersson said of Duff's admissions of wrongdoing.
If Bucklo accepts the proposed guilty plea, Duff's mother, Patricia, 76, could have to go to trial without her son at her side. She has been charged with falsely claiming to run the family janitorial firm, Windy City Maintenance Inc.
Attorney Joseph Duffy, the mother's lawyer, declined to comment on Thursday's developments.
In addition, William E. Stratton, a Duff confidant and an African-American, is charged with posing as boss of Remedial Environmental Manpower Inc., another Duff-run business that won a lucrative minority subcontract from Waste Management of Illinois to operate the city's blue bag recycling program.
James Duff is alleged to have concealed his role as the real decision-maker in the family business interests.
Patricia Duff, Stratton and their co-defendants have all pleaded not guilty.
James Duff, 46, of Burr Ridge is charged with 22 counts of mail or wire fraud, six counts of money laundering, three counts of tax violations and one count each of racketeering and conspiracy.
About the only issue the two sides could agree on Thursday was their desire to hold the legal debate behind closed doors. Both sides cited concern over publicity two weeks before trial and indicated that they expected the proceedings would become public if Bucklo let the guilty plea go forward.
But Bucklo decided to hold the arguments in open court after reporters for the Tribune were present when the hearing began in her courtroom. Bucklo questioned the reporters about how they knew of the hearing, but they declined to answer.
If the judge accepts Duff's guilty plea, his lawyers want a separate jury from the one at his co-defendants' trial to decide Duff's sentence.
But prosecutors objected to that as well, mostly on the grounds that it would waste court and government resources and time. Prosecutors estimated that with a separate jury, the sentencing hearing could take as long as two weeks, because the panel wouldn't have heard the evidence at trial.
The Jan. 20 trial is expected to last six to eight weeks.
In cases in which prosecutors seek to stiffen a defendant's sentence, federal juries must find in favor of the sentencing allegations beyond a reasonable doubt, as a result of a Supreme Court decision last year.
A major factor in Duff's sentence would be the jury's decision on the extent of the fraud loss in the case.
In a recent filing, the government alleged that Duff had his office manager tutor his mother on Windy City Maintenance business operations in a bid to fool city officials during an interview into thinking she really ran the company.
When Duff sat in on the tutoring sessions, he sometimes lost his temper when his mother misstated details on how the business functioned, the government said.
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