United States v. Thomas J. Maloney

This is yet another in an unfortunately long line of public corruption cases which have left a blot on the escutcheon of Chicago justice. Thomas J. Maloney, a former judge in the Circuit Court of Cook County, appeals from his conviction on charges of racketeering conspiracy, racketeering, extortion under color of official right, and obstruction of justice, in violation of 18 U.S.C. Secs. 1962(d), 1962(c), 1951, and 1503, respectively, in connection with his taking bribes in cases before him. Among his many grounds for appeal, Maloney contends that he should have been granted a new trial due to the government's failure to disclose improper benefits bestowed upon two "El Rukn" witnesses. The district court denied Maloney's motion, finding that further impeachment of these witnesses would not have changed the outcome. We affirm.

Thomas Maloney assumed his position on the bench in 1977 and remained there until his retirement in 1990. According to the jury's findings, during that time he took bribes and agreed to "fix" four cases,1 including three murder cases, and obstructed justice in relation to the investigation of these bribes. Generally, these bribes were accomplished through the use of a "bagman," or intermediary between the lawyer desiring the fix and the judge. Maloney used a bailiff, Lucius Robinson, as his bagman until Robinson's reputation became a liability during the "Greylord" investigation of Chicago judges. Maloney then switched to Robert McGee, who practiced law with Maloney from 1973 until 1977.2

The first bribe charged in the indictment occurred in May 1981. Attorney Robert Cooley was contacted by First Ward Alderman Fred Roti and Ward Secretary Pat Marcy to represent Lenny Chow, a hit man for the On Leong crime organization, and two others who were charged with attempted murder for shooting William Chin in Chicago's Chinatown. An On Leong representative, William Moy, told Cooley he wanted a guaranteed not guilty verdict. The case was before Judge Maloney and Marcy assured Cooley that the Judge could be bought, but warned him that Judge Maloney "wants a lot of money on this one." Moy agreed to pay $100,000, a portion of which Marcy gave to Maloney as part of the fix. Chin died, however, and the charges were elevated to murder. Despite this, Marcy was able to get Judge Maloney to allow the prior bond to stand as long as a friend of Judge Maloney joined as co-counsel. At trial, Judge Maloney admitted a dying declaration, but found it unreliable, thus acquitting the defendants. Tapes of a conversation between Cooley and Marcy made after Cooley became an informant confirmed the existence of the fix.

The government introduced evidence of another bribe which was not charged in the indictment, but occurred during this period, to demonstrate Judge Maloney's membership in the conspiracy. In 1980, William Swano represented Wilfredo Rosario in a double murder case before Judge Maloney. The critical evidence against Rosario was his confession. When Swano was discussing this case with Lucius Robinson, Robinson indicated he could arrange a fix with Judge Maloney for between $2,000-$2,500. Doubtful, Swano asked that a personal meeting be arranged. At this brief meeting outside his chambers, Judge Maloney told Swano that Robinson is "my guy, deal with him," whereupon, in Maloney's presence, Swano allegedly handed Robinson a white envelope with a portion of the bribe. In 1981, Judge Maloney suppressed the confession and found Rosario not guilty.

Swano, Robinson and Judge Maloney continued this arrangement for a few years. In 1982, Swano represented Ronald Roby in five deceptive practices cases which he had consolidated before Judge Maloney. Although the total dollar amount was small, Roby feared that he would be imprisoned because of his prior conviction for a similar offense in 1980. Thus, Swano sought out Robinson to arrange a fix which would guarantee no prison time. Roby testified that a bribe was to paid out of his $5,000 "fee." During a plea conference, Maloney sentenced Roby to probation with work release on Sundays and Mondays. Soon after, according to Robinson's testimony, he passed along $2,300 to Judge Maloney at a McCormick Place lounge Maloney had suggested as a meeting place. Robinson also testified that a few days later, while riding alone with Judge Maloney in the judges' elevator, Maloney gave him $200-$300 for his work as a bagman on the case.

The third bribe charged in the indictment occurred in late 1982. Owen Jones was charged with felony murder after beating a man to death with a pipe during a burglary. Swano was hired and explained the details of the case to Robinson in hopes of securing a fix. A few weeks later, however, when Swano went to court for the Jones case, Robert McGee approached him and explained that Robinson had become "too hot" to serve as a bagman for Judge Maloney anymore. Thus, Maloney asked McGee to take over. McGee told Swano that the best the Judge would do on the Jones case would be to acquit on felony murder, convict on voluntary manslaughter and impose a nine year sentence. Agreeing that this was preferable to a likely twenty year sentence for felony murder, Jones' mother agreed to pay Swano $4,000-$5,000 for the fix. After trial, Jones was found guilty of voluntary manslaughter and sentenced to nine years.

The final bribe charged in the indictment took place a few years later. In June 1985, Earl Hawkins and Nathan Fields, members of the El Rukns, were charged with murdering two men. Judge Maloney was assigned the case and Swano represented Hawkins. Swano assured Hawkins that he could win a decision in his favor in a bench trial if Hawkins could raise enough money for the Judge. Hawkins referred him to Alan Knox, a "senior" El Rukn general, who approved the fix. Swano testified that he met with McGee in January or February of 1986 to discuss the fix and they arrived at a figure of $10,000. According to Swano, McGee talked with Maloney and confirmed the figure, but McGee told Swano that the fix was conditional upon Swano putting on a "a good case" so Judge Maloney would not look bad. Swano then informed the El Rukns that the bribe was on, although he padded the figure to $20,000 to ensure some money for himself. He had some difficulty, however, collecting the bribe money from the El Rukns. Finally, the morning of trial, surveillance records indicate Swano left court and went to the El Rukn headquarters to get the money, and that Knox later arrived at the courthouse with a bulge in his pocket which appeared to be a roll of bills. Swano called McGee to confirm the fix and gave him a file folder with the money at the Mayor's Row restaurant. The case proceeded to a bench trial. On June 17th and 18th, the State put on its case where three eyewitnesses identified Hawkins as the murderer. By this time, the FBI had become suspicious of Judge Maloney and Hawkins/Fields case, and its agents were watching the trial closely. This attention, coupled with the strength of the State's case, prompted Judge Maloney to have second thoughts. Thus, McGee called Swano at 11:23 a.m. on June 19th in the anteroom outside Judge Maloney's chambers to inform him that he needed to "give the books back that he had given him the other day." Swano, hoping to salvage the fix, told McGee to "hold onto the books" at least until the defense could put on its case. According to Hawkins' testimony, Swano came back from the Judge's chambers and told him that Judge Maloney had returned the bribe money. Swano testified, however, that he had in fact persuaded McGee to talk to Judge Maloney about continuing the fix and was, at least temporarily, successful. Swano also testified that he confirmed the existence of the fix with Judge Maloney himself on two occasions. By the end of trial on June 26th, though, Judge Maloney apparently believed that Swano had not lived up to his end of the bargain by putting on a good defense case. McGee called Swano on the evening of the 26th to inform him the fix was off. The next morning Maloney told Swano that a lawyer had left a file for him in his chambers and directed a deputy sheriff to retrieve it. When Swano went to the Judge's chambers, Maloney handed Swano the file of money he had passed to McGee at the start of the trial. Hawkins and Fields were found guilty by the Judge and subsequently sentenced to death.

By at least May 1988, a grand jury proceeding was convened and Robinson, under a grant of immunity, testified about judicial bribery in general and Maloney in particular. No indictments had yet been handed down, however, and Swano continued to practice before Judge Maloney. In late 1988 or early 1989, Swano had a pretrial case conference with the Judge in his chambers. After everyone else had left, Judge Maloney asked Swano "whether or not [he] was standing tall," which Swano understood to mean was he resisting the questions of federal investigators. Judge Maloney also asked Swano if he "needed a lawyer or any sort of help." In the Summer of 1990, in a back stairway of the courthouse, Judge Maloney again asked Swano if he was "standing tall," because he had "heard that there is a lot of investigation going on." During the conversation, Swano told Maloney that he understood the government was trying to put together a tax case against him.

On June 26, 1991, Maloney was indicted by a federal grand jury and the case proceeded to trial in March 1993. The defense's theory was that Swano and Robinson had operated a scam known as "rainmaking," where the participants never pass the bribe along to the judge. The government, however, rebutted this theory with evidence of Maloney's financial records which indicated that he extensively used money orders to hide the fact that he was spending more money than he received from all legitimate sources. On April 16, 1993, the jury convicted Maloney on all counts.

After the verdict was reached in this case, three separate district judges in the Northern District of Illinois held that William Hogan, one of the prosecutors in this case, had suppressed material information in the cases before them and ordered new trials. See United States v. Boyd, 833 F.Supp. 1277 (N.D.Ill.1993), aff'd, 55 F.3d 239 (7th Cir.1995); United States v. Burnside, 824 F.Supp. 1215 (N.D.Ill.1993); United States v. Andrews, 824 F.Supp. 1273 (N.D.Ill.1993). All of these cases involved the use of testimony of cooperating members of the El Rukn organization in prosecutions of the El Rukns for various crimes. Because two of the cooperating El Rukn witnesses, Earl Hawkins and Derrick Kees, also testified in this case, Maloney moved for a new trial. The district court, however, denied this and all other post-trial motions, ruling that the significance of the El Rukn testimony in this case was markedly different than in the El Rukn trials. Maloney filed a timely notice of appeal and we have jurisdiction under 28 U.S.C. Sec. 1291.

Maloney's argument on appeal is somewhat convoluted. According to Maloney, the prosecution's knowing use of perjured testimony and suppression of material impeachment evidence regarding the El Rukn witnesses prevented the jury from properly evaluating whether Judge Maloney returned the Hawkins/Field bribe, which was racketeering act five, on June 19th, 1986 or on June 27th, 1986. This issue appears insignificant given racketeering act six, the obstruction of justice activity in 1988 and 1990. According to Maloney, however, it becomes material in determining if the government met RICO's five-year statute of limitations if we also agree with one of two further arguments: (1) Maloney withdrew from the conspiracy when the bribe was returned; or (2) even if Maloney did not withdraw at that time, the obstruction of justice activity in 1988 and 1990 was insufficient to extend the conspiracy past the last aborted bribe. Agreeing with one of these two arguments is also a precondition to accepting Maloney's attacks on the statute of limitations instructions and the application of the Sentencing Guidelines. Finally, Maloney contends that the instruction on the RICO interstate commerce requirements, and the introduction of evidence on the Chow and Rosario bribes, were both erroneous. This house of cards, precarious on its face, falls flat upon closer analysis.

Maloney contends that during his trial the prosecution knowingly used false testimony and violated his right under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to be shown exculpatory evidence that is in the prosecution's possession. In reviewing the denial of a motion for a new trial based upon such allegations, we defer to the district court's judgment as to whether the evidence wrongfully withheld by the government might if disclosed have changed the outcome of the trial. When this question revolves on a pure issue of law, our review is de novo. Boyd, 55 F.3d at 242.

In order to receive a new trial for either the knowing use of false testimony or the suppression of exculpatory evidence, Maloney must establish that the evidence was "material," that is, that "there is a reasonable probability that, had it not been for the improprieties, the defendants would have been acquitted."3 Id. at 245. "A 'reasonable probability' of a different result is accordingly shown when the Government's evidentiary suppression 'undermines confidence in the outcome of the trial.' " Kyles v. Whitley, --- U.S. ----, ----, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Maloney alleges government improprieties with respect to the testimony of Cooley, Swano and the El Rukn witnesses, Hawkins and Kees.

Maloney claims that the prosecution suppressed a statement Cooley made in his first meeting with the government. He reportedly said that he "didn't have to bribe judges because he was with the First Ward, and when you were with the First Ward, everybody knew what was supposed to happen." According to Maloney, this statement rebutted his allegations of bribery in the Chow case. Cooley admitted at trial, however, that he "was not fully honest with them when [he] first started talking to them," thus explaining any inconsistency between his trial testimony and his prior statements. Furthermore, in view of the tapes of conversations between Cooley and Marcy confirming the existence of a fix, and the jury's findings that at least two other predicate acts occurred, it was not an abuse of discretion for the district court to find that this suppression was not material to the outcome of the case.

The prosecution allegedly withheld statements by one of Swano's former clients that revealed that Swano had told this client in late 1991 to lie on his habeas petition. While the suppression of such impeachment evidence can give rise to a Brady violation, see Kyles, --- U.S. at ----, 115 S.Ct. at 1565 (citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)), it must be more than mere cumulative impeachment. United States v. Kozinski, 16 F.3d 795, 819 (7th Cir.1994). Because Swano admitted that he took witness recantation statements while suspecting that the witnesses had been intimidated into making the statements, as well as taking statements with full knowledge of their falsity, such evidence would have been merely cumulative and the district court did not abuse its discretion in so finding.

According to the evidence introduced in other cases, William Hogan and the United States Attorney's Office for the Northern District of Illinois facilitated drug usage, sexual liaisons, and extensive personal phone calls, by cooperating witnesses from the El Rukn organization, including Hawkins and Kees. See, e.g., Boyd, 833 F.Supp. at 1296, 1324. This evidence of Hawkins' and Kees' post-incarceration criminal activity and receipt of benefits was not disclosed to the defense, nor was it fully testified to at trial. The district court, however, found that such evidence, even assuming it included false testimony and went beyond the realm of cumulative impeachment, was not material given the nature of Hawkins' and Kees' testimony. Because neither Hawkins nor Kees testified that they ever saw Swano pass the money along to Judge Maloney, or even his bagman, McGee, the El Rukn testimony was entirely consistent with the defense's "rain-making" theory.

Maloney responds that the suppressed evidence and borderline false testimony were significant in relation to Hawkins' testimony regarding what Swano told him about the return of the bribe and whether this conversation took place on the 19th or the 27th of June.4 Under the prosecution's direct examination, Hawkins testified that Swano told him on June 19th that Judge Maloney had returned the bribe. The prosecution attempted to impeach this testimony with a prior inconsistent statement Hawkins made before trial. According to the government, Hawkins had told them earlier that Swano had merely stated on June 19th that the Judge wanted to give the money back, not that he already did. Maloney theorizes that if the jury had known how beholden Hawkins was to the prosecution, it would have inferred that his prior inconsistent statement that the bribe was returned on the 27th was an attempt to tell the prosecution what it wanted to hear. Under this argument, if the jury had discounted his prior inconsistent statement, it would have found the action to be time-barred. Maloney, however, makes a number of questionable assumptions in reaching this conclusion.

Initially, the argument assumes that the evidence of drug usage and government favors would have changed the impact of Hawkins' testimony in Maloney's favor. Hawkins' testimony on direct was that the bribe was returned on June 19th. Although the government impeached this testimony with a prior inconsistent statement that the money was returned on the 27th, the defense rehabilitated it on cross-examination and recross when Hawkins admitted that he had testified to the return being on the 19th in trials dating back to 1987 and he admitted that Swano told him the bribe was returned right before Anthony Sumner, a former El Rukn, testified, which was on the 19th. While it is possible the suppressed evidence would have bolstered Maloney's case, it is equally possible that Hawkins would have appeared to be a drug addict who could not be counted on to remember exact dates or conversations in any event. Maloney speculates that if Hawkins' testimony about the return being on the 27th was discredited, Swano's testimony would go uncorroborated and unbelieved on that and all other subjects. That ultimate result is a fairly substantial stretch; it is perhaps more likely that if Hawkins' memory of dates became discounted altogether, then there would have been no one left to support Maloney's basis for the statute of limitations defense. There is no reasonable probability that disclosure of the information would have resulted in Maloney's acquittal on statute of limitations grounds.

Even if the suppressed evidence would have caused the jury to believe the bribe was returned on June 19th, it is still not material unless Maloney either withdrew from the conspiracy when the bribe was returned, or his later acts of witness tampering are insufficient to extend the conspiracy for statute of limitations purposes. Given our resolution of these two issues below, we do not find that the district court abused its discretion or committed legal error by denying Maloney's motion for a new trial.

Maloney asserts that the district court erroneously refused to read his withdrawal instruction despite the evidence that the Hawkins bribe was returned. "Generally, a defendant is entitled to an instruction on any defense recognized in the law and supported by sufficient evidence to allow a reasonable jury to find in the defendant's favor." United States v. Starnes, 14 F.3d 1207, 1210 (7th Cir.), (quoting United States v. Schweihs, 971 F.2d 1302, 1322 (7th Cir.1992)), cert. denied, --- U.S. ----, 114 S.Ct. 2717, 129 L.Ed.2d 842 (1994). We must decide de novo the question of whether Maloney introduced sufficient evidence to allow the jury to find, in accordance with the applicable law, that he withdrew from the conspiracy. United States v. Casanova, 970 F.2d 371, 374 (7th Cir.1992). In making this determination, we must remember that withdrawal requires an affirmative act on the part of the conspirator. He must either confess to authorities, or "communicate to each of his conspirators that he has abandoned the conspiracy and its goals." United States v. Sax, 39 F.3d 1380, 1386 (7th Cir.1994). Mere inactivity is not sufficient; the conspirator must "affirmatively renounce[ ] the goals of the criminal enterprise," United States v. DePriest, 6 F.3d 1201, 1206 (7th Cir.1993), by taking steps to "defeat or disavow the conspiracy's purpose." Sax, 39 F.3d at 1386.

Maloney asserts that the return of the Hawkins bribe was an affirmative act inconsistent with the conspiracy's purpose. This, however, ignores the conditional nature of the bribe and the circumstances surrounding it. Many indictments and convictions of judges had already occurred at this time as a result of the Greylord investigation. According to Swano, McGee told him that Judge Maloney agreed to accept the $10,000 bribe conditional upon Swano putting on "a good [defense] case." (Tr. 2571). Swano elaborated on what the members of the conspiracy understood this to mean in the instant case:

The judge was worried about looking bad on a serious double-murder case like this. And I had to have the witnesses together and I had to do the case the way I described it to him; that the state had a weak identification case; that we had nullified Sumner and that we had, in fact, the eyewitnesses that would contradict the testimony of the state's witnesses. (Tr. 2571).

Swano emphasized "it wasn't a hundred percent guarantee. We had to put on a good defense." (Tr. 2586). This is what he told the El Rukns when he explained the fix to them. Thus, when McGee called to end the fix, he explained that "the State witnesses were too good, and the case was going too good for the State." (Tr. 2669). Several witnesses testified that the presence of FBI agents in the building and the courtroom during Hawkins' trial was obvious and a clear indication that the case was being closely monitored for a possible fix. Thus, the threshold standard for the appearance of propriety was raised. When Swano failed to effectively rebut the state's case, the fix was called off for good. According to Hawkins, Swano explained that "the case was too hot and he didn't want to go through with it no more ... that somebody had leaked it--somebody in the organization had leaked it to the FBI." (Tr. 1559-60). There was no evidence introduced that Maloney would be unreceptive to future bribes; the only evidence at all on the matter revealed merely that this bribe under these circumstances did not comport with the conspiracy's objectives and criteria for the fixing of cases. Maloney's return of the bribe was therefore more akin to a deal gone sour than an affirmative attempt to defeat the purposes of the conspiracy.5 In United States v. Pofahl, 990 F.2d 1456, 1484 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 266, 126 L.Ed.2d 218 and cert. denied, --- U.S. ----, 114 S.Ct. 560, 126 L.Ed.2d 460 (1993), a conspirator was scheduled to go to Guatemala to help arrange a shipment of drugs. After learning that a co-conspirator had been arrested, the conspirator canceled his scheduled trip. He argued that this was an affirmative act to withdraw from the conspiracy. The court disagreed, holding that "Nunn's decision to cancel his trip to Guatemala in the face of possible arrest is hardly an affirmative action to defeat the conspiracy." Id. It was an attempt to evade detection by canceling an act which was supposed to be in furtherance of the conspiracy, but this cannot equate to a withdrawal. By the same token Maloney may have canceled a bribe intended to be in furtherance of the RICO and extortion conspiracies, but this did not withdraw him from those conspiracies.

Maloney counters that the absence of any evidence of bribes after the return of the Hawkins bribe confirms that this was intended to signal a withdrawal. He admits that the inactivity itself cannot signal a withdrawal, see, Sax, 39 F.3d at 1386, but argues that it evidences his intent to withdraw when the bribe was returned. This ignores the intermittent character of the conspiracy. After the Greylord investigation became public knowledge in 1983, the conspirators waited almost three years before attempting another bribe. As long as Judge Maloney remained on the bench, "the central criminal purpose" of the conspiracy, to fix cases whenever feasible, had not yet ended or been accomplished. United States v. McKinney, 954 F.2d 471, 475 (7th Cir.), cert. denied, 506 U.S. 1023, 113 S.Ct. 662, 121 L.Ed.2d 587 (1992). After the aborted Hawkins bribe, Swano continued to practice before Judge Maloney, and McGee and Maloney continued to meet. Nothing distinguished this post-Hawkins bribe inactivity from the post-Jones bribe inactivity. Thus, it was not error to deny Maloney's proposed withdrawal instruction.

Maloney raises four arguments in support of reversing his obstruction of justice conviction under 18 U.S.C. Sec. 1503 or limiting the extent to which the obstruction of justice count can be used in conjunction with the other counts: (1) it was based upon insufficient evidence; (2) the jury was given an improper instruction on the issue; (3) the alleged conduct is not actionable under Sec. 1503; and (4) the obstruction of justice conviction is insufficient to extend the RICO conspiracy for statute of limitations purposes. We will address each argument in turn.

Section 1503 prohibits a person from endeavoring to obstruct or impede the "due administration of justice." To establish a violation of this section, courts require the government to establish that the defendant knew of a pending judicial proceeding and intended to impede its administration. See United States v. Aguilar, --- U.S. ----, ----, 115 S.Ct. 2357, 2362, 132 L.Ed.2d 520 (1995); United States v. Edwards, 36 F.3d 639, 645 (7th Cir.1994). Maloney argues that the evidence failed to establish either the existence of a pending judicial proceeding or his knowledge of it. We will reverse a conviction for insufficient evidence only if, after viewing the evidence in the light most favorable to the government, it is determined that no rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Brandon, 50 F.3d 464, 467 (7th Cir.1995).

There was substantial, unrebutted, evidence introduced to establish the existence of a pending judicial proceeding and Maloney's knowledge of it. Robinson stated that on May 5, 1988, before Maloney's first "standing tall" conversation with Swano, he testified before the grand jury and was asked questions about his passing of bribes to many specific judges, including Judge Maloney. In 1989, Robinson was summoned to again appear before the grand jury to testify on the same subject. On February 21, 1989, IRS investigator Dennis Czurylo specifically informed Maloney that he was the subject of a grand jury investigation and served him with subpoenas issued under the authority of this grand jury. Czurylo also testified that he served a total of approximately 300 grand jury subpoenas in his investigation of Judge Maloney.6 IRS Agent Rick Kozma testified that he was brought into the grand jury investigation of Maloney in September of 1989 to aid Czurylo in evaluating the information they received from these subpoenas. The owner of the Park West Currency Exchange and a representative of an investment advisory firm both testified to having received subpoenas for information during this period. With the wide sweep of this grand jury investigation, it was clear that Maloney was aware it was pending when he spoke with Swano in the summer of 1990. In fact, Swano told him at the time that "I hear they are trying to put a tax case on you." (Tr. 2765). Finally, Roby testified that in August of 1990, he was served by the FBI with a subpoena to appear before the grand jury to testify about his allegations that his case before Judge Maloney had been fixed, thus indicating that the grand jury proceeding was indeed still pending when Maloney had his second "standing tall" conversation with Swano. It is well established that investigations undertaken with the intention of presenting evidence before a grand jury are sufficient to constitute "the due administration of justice" under Sec. 1503. United States v. McComb, 744 F.2d 555, 561 (7th Cir.1984).7

Maloney contends that the district court committed reversible error in its charge to the jury on the obstruction of justice count. Although the court gave the Seventh Circuit pattern jury instruction for obstruction of justice under Sec. 1503,8 it added its own supplemental instruction. This instruction stated that "[f]or purposes of Racketeering Act 6 and Count Four, the government need not prove that an official proceeding was actually pending or about to be instituted at the time of the offense." The government concedes that this was not an accurate statement of the law, but argues that any error was harmless.

The Supreme Court's most recent pronouncement on the harmless error standard for jury instructions came in Sullivan v. Louisiana, 508 U.S. 275, ----, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). In holding that an erroneous reasonable doubt instruction could never constitute harmless error, the Court distinguished its case from erroneous jury instructions which erect a presumption about an element of the offense. Id. at ----, 113 S.Ct. at 2082. Thus, the Court's decision was consistent with the holding of Rose v. Clark, 478 U.S. 570, 580, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986), where the jury was erroneously instructed that malice, an element of the offense of second degree murder, could be presumed from the existence of the killing unless this presumption was rebutted by the defendant.

'[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.' Rose v. Clark, 478 U.S. 570, 580, [106 S.Ct. 3101, 3107, 92 L.Ed.2d 460] (1986). And when the latter facts 'are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed.' Carella v. California, 491 U.S. 263, 271 [109 S.Ct. 2419, 2423, 105 L.Ed.2d 218] (1989) (Scalia, concurring in judgment).

Sullivan, 508 U.S. at ----, 113 S.Ct. at 2082. In this situation, a reviewing court may find little difficulty in concluding that the presumption played no part in the jury's determination of the defendant's guilt beyond a reasonable doubt.

We had occasion to apply Sullivan 's harmless error standard for instructional errors in United States v. Parmelee, 42 F.3d 387, 392 (7th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 63, 133 L.Ed.2d 25 (1995). Parmelee involved the violation of a section of the immigration laws which prohibited a person from knowingly and willfully transporting an illegal alien within the United States. Although the district court instructed the jury that it must find that the defendant knew the alien he was transporting had entered the country illegally, it did not instruct the jury that it must find that the defendant did so willfully, in order to further the aliens illegal entry. Id. at 391. Although we recognized that "in theory" a jury could conclude that an individual knowingly but not willfully transported illegal aliens, we found that under the factual circumstances of the case, there was unrebutted evidence of the defendant's mental state in transporting the alien. Id. at 393. Thus, the instructional error was harmless. "[A] rational jury, which found that the defendants knew the aliens were illegal, also would have necessarily found that the defendants knew their activity furthered the aliens' violation of the law." Id.

The instant case is also well-suited for a harmless error determination under Sullivan. The district court through its supplemental instruction essentially permitted the jury to presume the existence of a pending judicial proceeding if it found an attempt to obstruct the due administration of justice. In order to find Maloney guilty of violating Sec. 1503 under the district court's erroneous instruction, though, the jury still had to find beyond a reasonable doubt that he made one or both of the statements to Swano in an attempt to obstruct justice. Although in theory a jury under this instruction could convict an individual for obstruction of justice without any evidence of a pending judicial proceeding, the factual circumstances of this case suggest that the actual verdict was not so influenced. See Parmelee, 42 F.3d at 393. The factual finding of obstruction of justice is so closely related to the ultimate and unrebutted fact of the existence of a pending grand jury proceeding that the error is harmless. For instance, Swano testified that after receiving Maloney's "standing tall" warning in the summer of 1990, he informed Maloney of his knowledge of the government's attempt to make out a tax case against him. Maloney therefore had knowledge that his statement to Swano could reasonably interfere with an investigation by the IRS. The only evidence introduced at trial of a "tax case," however, was the unrebutted testimony of IRS Agents Dennis Czurylo and Rick Kozma that they were investigating Maloney's financial records in aid of the grand jury investigation and had told Maloney of this fact. A finding that Maloney endeavored to obstruct the tax case against him is the same as a finding that he endeavored to obstruct the pending grand jury proceeding because the tax investigation was being pursued in aid of the grand jury investigation. Furthermore, it was unrebutted that a grand jury proceeding was pending between 1988 and 1990. There was no testimony that any investigation which took place during the period was somehow independent of the grand jury's authority.9 Thus, because the jury found that Maloney endeavored to obstruct the due administration of justice, and because no rational jury could have failed to find the existence of a pending grand jury proceeding during Maloney's attempts to obstruct justice, then the instructional error could not have "contribute[d] to the jury's verdict of guilty." Parmelee,