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NOW COMES the PLAINTIFF, by and through Horwitz, Richardson, & Baker LLC., and pursuant to this Complaint at Law, states the following against the above named Defendants,to wit CAPTAIN ANTON CUNDIFF (“CUNDIFF”), LIEUTENANT JOHN MILLER #1431 (“MILLER”), LIEUTENANT WILLIAM LUTZ (“LUTZ”), SERGEANT POPOVITS (“POPOVITS”), and KATHLEEN SIETH, (hereinafter, the “INDIVIDUAL DEFENDANTS”), KEITH NYGREN (“NYGREN”), individually and in his official capacity as SHERIFF OF MCHENRY COUNTY, and the COUNTY OF MCHENRY.

NATURE OF THE CASE

1. This case is about an individual who spoke out on a matter of public concern,
specifically, against racial profiling activities and policies within the McHenry County Sheriff’s Department. Instead of being commended, he was harassed, demoted, criminally investigated, placed on administrative leave, and eventually terminated. Plaintiff, Zane Seipler, has been deprived of his basic civil rights by government officials whose duties include upholding the law and protecting the civil rights of others.

JURISDICTION

2. The jurisdiction of the court is invoked pursuant to the Civil Rights Act, 42 U.S.C. §1983; the Judicial Code, 28 U.S.C. §1331 and §1343(a); the Constitution of the United States; and this Court’s supplementary jurisdiction powers.

PARTIES

3. PLAINTIFF is a resident of the State of Illinois and a citizen of the United States.

4. The INDIVIDUAL DEFENDANTS were at all times relevant hereto employed by and acting on behalf of the COUNTY OF MCHENRY.

5. KEITH NYGREN is, and was at all times relevant hereto, the SHERIFF OF MCHENRY COUNTY.

6. The COUNTY OF MCHENRY is a duly incorporated municipal corporation. The COUNTY OF MCHENRY is the employer and principal of the INDIVIDUAL DEFENDANTS as well as the other officers and/or employees referred to in this Complaint. At all times material to this Complaint, the DEFENDANT OFFICERS were acting under color of state law, ordinance and/or regulation, statutes, custom and usages of the COUNTY OF MCHENRY and the SHERIFF OF MCHENRY COUNTY.

FACTS

A. Background

7. Plaintiff was an employee of the SHERIFF OF MCHENRY COUNTY and the COUNTY OF MCHENRY.

8. PLAINTIFF was hired on or about October 25, 2004 to be a Sheriff’s Deputy for the SHERIFF OF MCHENRY COUNTY and the COUNTY OF MCHENRY.

9. During his training for employment with the SHERIFF OF MCHENRY COUNTY, PLAINTIFF witnessed what was, in essence, a “Code of Silence.” PLAINTIFF was told that he was not to speak out against fellow employees of the SHERIFF OF MCHENRY COUNTY.

10. PLAINTIFF, by his words and actions, made it clear to his supervisors and fellow officers of the SHERIFF OF MCHENRY COUNTY that he would not condone a “Code of Silence” if it meant compromising his professional and personal integrity or violating the law.

11. PLAINTIFF, by his words and actions, made it clear to his supervisors and fellow officers of the SHERIFF OF MCHENRY COUNTY that he would not condone practices involving racial profiling and subsequent cover-ups of such incidents. PLAINTIFF voiced his objections to such incidents and made it known he would not participate in such behavior.

12. Prior to his employment as a McHenry County Sheriff’s Deputy, PLAINTIFF was a deputy in the Cook County Sheriff’s Department for approximately five years. PLAINTIFF left his employment with the Cook County Sheriff’s Department on good terms.

13. During his employment with the SHERIFF OF MCHENRY COUNTY, PLAINTIFF has received multiple commendations and has been appointed to various duties pursuant to his excellent performance. Specifically, PLAINTIFF has been a member of the SWAT team, a defensive Tactics Instructor, a Field Training Officer, a Medic First Aid Instructor, and a cultural representative to the Guadalupe, Mexico police department.

B. Plaintiff Witnesses Incidents of Racial Profiling

14. On or about December 21, 2006, PLAINTIFF was on patrol and training a fellow officer. PLAINTIFF received a transmission from a Deputy of the SHERIFF OF MCHENRY COUNTY over his police radio directing him to pull over a black male operating a motor vehicle. The sole reason PLAINTIFF was given for effectuating the traffic stop was the race of the driver.

15. PLAINTIFF declined to effectuate the traffic stop.

16. The Deputy who had called for the traffic stop of the black male has since been promoted by the SHERIFF OF MCHENRY COUNTY.

17. On or about January 1, 2007, PLAINTIFF was on patrol with a fellow McHenry County Sheriff’s Deputy. While passing an apartment complex with a large Hispanic population, the passenger Deputy commented to PLAINTIFF that the location was an easy place to make arrests for driving without a valid driver’s license.

18. On or about November 18, 2007, PLAINTIFF was informed by a fellow Deputy of misconduct on behalf of employees of the SHERIFF OF MCHENRY COUNTY, to wit, PLAINTIFF was informed that traffic stops were being effectuated by McHenry County Deputies for “driving while black.”

C. Plaintiff Speaks Out Against the Incidents of Racial Profiling

19. On or about July 28, 2007, PLAINTIFF, along with other employees of the SHERIFF OF MCHENRY COUNTY, was given a Climate Assessment Questionnaire (“Questionnaire”).

20. In his responses to the Questionnaire, PLAINTIFF made the following comments:

“Civil rights violations are rampant,”

“Profiling and civil rights violations are prevalent,”and

“Profiling and civil rights violations are accepted practices among a number of deputies.”

Further PLAINTIFF commented that, “profiling and civil rights recognition” should be added to the training programs of the SHERIFF OF MCHENRY COUNTY. Although it was optional, PLAINTIFF provided his name on the Questionnaire.

21. A few hours after submitting his responses to the Questionnaire, PLAINTIFF was called in to have a closed door meeting with Defendant CUNDIFF.

22. During this meeting, PLAINTIFF explained to CUNDIFF that he believed fellow Deputies were engaging in racial profiling.

23. Later this same day, PLAINTIFF was called in to another meeting with Defendant SIETH, the Equal Employment Opportunity Officer for the SHERIFF OF MCHENRY COUNTY, and POPOVITS. This meeting was recorded. During this meeting, PLAINTIFF again voiced his concerns regarding racial profiling.

24. On or about November 18, 2007, PLAINTIFF wrote a memorandum to his supervisors regarding his concerns based on the information he received (supra ¶ 18). This memorandum expressed PLAINTIFF’s concerns that traffic stops had been effectuated by employees of the SHERIFF OF MCHENRY COUNTY for “driving while black.” Also mentioned in this memorandum were incidents where PLAINTIFF had overheard his fellow deputies making comments involving racial slurs.

D. Defendants Harass and Retaliate Against Plaintiff; Plaintiff Reports to Outside Agencies

25. On or about January 23, 2008, PLAINTIFF had a meeting with SEITH, the individual charged with investigating PLAINTIFF’s claims of police misconduct. During this meeting, SEITH informed PLAINTIFF, in a threatening manner, that one of the deputies PLAINTIFF had mentioned was inquiring about filing a harassment complaint against PLAINTIFF.

26. On or about January 25, 2008, notwithstanding his commended performance as a Deputy, PLAINTIFF received a mediocre evaluation by the SHERIFF OF MCHENRY COUNTY. In this evaluation, prepared by POPOVITS, reference was made to the fact that RLAINTIFF had voiced his concerns about officer misconduct and that the concerns were unfounded.PLAINTIFF rebutted this evaluation. Subsequent to the rebuttal hearing, PLAINTIFF’s evaluation scores were raised five and a half months later.

27. During his rebuttal hearing, PLAINTIFF was ordered by Defendant MILLER and POPOVITS to provide a list of names of fellow Deputies who had knowledge of Deputies engaged in police misconduct. Despite fear of alienating himself among his peers, PLAINTIFF complied with this request in his attempts to aid in the departmental investigation.

28. On our about January 25, 2008, PLAINTIFF found a roster of McHenry Deputies listed in order of seniority hanging in the common area of the patrol room. PLAINTIFF saw that his name had been scratched off of this list.

29. On January 29, 2008, PLAINTIFF was ordered by his supervisors at the SHERIFF OF MCHENRY COUNTY to undergo a psychological evaluation. The stated reason for this evaluation related to a shooting that occurred on or about September 16, 2008; this shooting had been investigated by both the Illinois State Police and the McHenry County State’s attorney and been determined a proper shooting. Further, PLAINTIFF had been cleared for duty by a psychologist pursuant to an examination on September 18, 2006.

30. Also, on or about January 29, 2008 the SHERIFF OF MCHENRY COUNTY issued certified letters to the individuals named by PLAINTIFF pursuant to MILLER’s and POPOVITS’ order of January 25, 2008. Following the issuance of these letters, fellow Deputies of the SHERIFF OF MCHENRY COUNTY became hostile towards PLAINTIFF. PLAINTIFF was subsequently told by fellow officers that employees of the SHERIFF OF MCHENRY COUNTY have stated that PLAINTIFF is “crazy” and/or “hated” by his fellow Deputies.

31. On or about February 2, 2008, SIETH, during an investigatory meeting regarding PLAINTIFF’s concerns of racial profiling, told one of PLAINTIFF’s co-workers that PLAINTIFF was disgruntled and starting rumors, intimating that PLAINTIFF’s concerns of racial profiling were without merit. During a similar meeting with another of PLAINTIFF’s coworkers, on or about February 5, 2008, SIETH intimated that PLAINTIFF’s concerns were a joke and that she was not seriously investigating them.

32. On or about February 19, 2008, PLAINTIFF was informed that he was no longer acandidate for Range Instructor though he was listed as the top candidate for the position.

33. On or about February 20, 2008 PLAINTIFF informed CUNDIFF in a memorandum that he believed SEITH was not handling the racial profiling investigation in a professional or ethical manner.

34. On or about February 21, 2008, PLAINTIFF contacted a Sergeant Master with the Illinois State Police Internal Affairs Division and related his claims of racial-profiling and the subsequent events stated above.

35. On or about February 22, 2008, the members of the SWAT team were informed by supervisors of the SHERIFF OF MCHENRY COUNTY that PLAINTIFF was untrustworthy. This information was then related to PLAINTIFF by members of the SWAT team during a hostile meeting with his fellow deputies.

36. Further on that same day, Defendant LUTZ informed PLAINTIFF, at his home and in front of his wife and children, that the SHERIFF OF MCHENRY COUNTY was engaged in an administrative/criminal complaint against PLAINTIFF regarding a statement he made while off duty on or about January 6, 2008.

37. On or about February 27, 2008, PLAINTIFF was officially removed from the SHERIFF OF MCHENRY COUNTY SWAT team. On that same day, PLAINTIFF was told by CUNDIFF that there is no validity to his claims of racial profiling and concerns regarding the subsequent investigation.

38. Further, on or about February 27, 2008, individuals other than PLAINTIFF are promoted to the positions of Sergeant, Range Instructor, and the apprehension unit. PLAINTIFF had previously been a top contender for all three positions.

39. On or about February 29, 2008, PLAINTIFF was informed by supervisors that all of his work related actions were under intense scrutiny.

40. On or about March 3, 2008, PLAINTIFF met with a Supervisory Special Agent with the Federal Bureau of Investigation regarding his claims of racial profiling and the subsequent events alleged above (supra ¶¶ 14-37).

41. On or about March 24, 2008, PLAINTIF received correspondence from MILLER informing him that his temporary suspension from the SWAT team has been upgraded to a permanent removal.

42. On or about March 30, 2008, during a meeting, MILLER confirmed to PLAINTIFF that supervising employees of the MCHENRY COUNTY SHERIFF’S DEPARTMENT had been making negative comments about PLAINTIFF as a result of his statements regarding racial profiling within the department.

43. On or about March 31, 2008, PLAINTIFF was replaced as a training officer for a standard patrol by a Deputy who was not a certified Field Training Officer.

44. On or about April 13, 2008 and April 14, 2008, a non-certified Deputy was assigned to a standard training patrol for training purposes in lieu of PLAINTIFF.

45. On or about April 15, 2008, PLAINTIFF was informed by Lt. Zinke that CUNDIFF had suspended PLAINTIFF from his duties as a Field Training Officer.

46. On or about April 23, 2008, PLAINTIFF was, yet again, passed over for a promotion and another Deputy is promoted to the position of Sergeant.

47. On or about April 30, 2008, MILLER told PLAINTIFF that he is aware that the retaliation against PLAINTIFF is illegal, but will never state as such in public. MILLER then stated that he was aware that racial profiling was happening but did not know how to stop it. MILLER further stated that, if PLAINTIFF ceased talking about the racial profiling concerns, MILLER would use his influence in the McHenry County Sheriff’s Department to help PLAINTIFF with his “problems.”

48. On or about May 2, 2008, PLAINTIFF filed a complaint with the Equal Employment Opportunity Commission regarding his claims of racial profiling and the subsequent retaliation by Defendants, requesting mediation.

49. On or about June 4, 2008, PLAINTIFF was notified that the MCHENRY COUNTY SHERIFF’S DEPARTMENT has denied his requests for mediation pursuant to his complaint with the Equal Employment Opportunity Commission. That same day, PLAINTIFF submitted writings to CUNDIFF regarding the meeting of April 30, 2008 between PLAINTIFF and MILLER and his suspension from field training. PLAINTIFF also requested a copy of his personnel file.

50. On or about June 5, 2008, PLAINTIFF had a meeting with CUNDIFF and MILLER during which his claims of racial profiling and the subsequent events (supra ¶¶ 14-50) were discussed. At said meeting, CUNDIFF stated to PLAINTIFF, words to the effect of,

"If I give you something will you drop your lawsuit?”

and before PLAINTIFF could answer

“Fuck you! Get the fuck out of my office!"

Several of PLAINTIFF’s co-workers overheard this verbal berating.

51. On or about June 18, 2008, PLAINTIFF had a meeting with CUNDIFF and MILLER. PLAINTIFF was given a written reprimand for his off-duty comment of January 6, 2008 supra ¶ 36).

52. On or about July 21, 2008, PLAINTIFF was placed on administrative leave by the MCHENRY COUNTY SHERIFF’S DEPARTMENT regarding a traffic stop effectuated by PLAINTIFF. Administrative and criminal investigations have been lodged against PLAINTIFF regarding this traffic stop. At this time, CUNDIFF stripped PLAINTIFF of his badge. Further, PLAINTIFF’s personal items, including a notebook containing information of a highly personal nature, were seized. LUTZ conducted this seizure.

53. Following this incident, on July 22, 2008, PLAINTIFF filed another complaint with the Equal Employment Opportunity Commission.

54. On or about July 23, 2008, PLAINTIFF was, again, passed up for a promotion to Sergeant. The eligibility list for Sergeant was then terminated, leaving PLAINTIFF as the only eligible deputy that was not promoted.

55. On July 24, 2008, PLAINTIFF filed a charge with the Illinois Department of Human Rights regarding the aforementioned events, specifically the events of July 23, 2008 (supra ¶56).

56. On or about July 29, 2008, PLAINTIFF was interrogated by MILLER and LUTZ. The subject matter of this interrogation involved a traffic stop where PLAINTIFF issued a violation to a Caucasian individual and used his discretion as a Sheriff’s Deputy to not issue a citation to a Hispanic individual. As of the date of this filing, this investigation is ongoing.

57. At this time, PLAINTIFF was further informed that the MCHENRY COUNTY SHERIFF’S DEPARTMENT intended to instigate further administrative and/or criminal investigations against PLAINTIFF regarding his previous traffic stops. The unofficial basis for these investigations was that PLAINTIFF was racially profiling Caucasians.

58. On or about November 17, 2008, PLAINTIFF was terminated by the MCHENRYCOUNTY SHERIFF’S DEPARTMENT.

E. Despite Defendants’ Harassment and Retaliation, Plaintiff Consistently Excelled in His Duties as a Sheriff’s Deputy

59. Throughout the period of the aforementioned events, PLAINTIFF received the following commendations by the MCHENRY COUNTY SHERIFF’S DEPARTMENT:

a. February 11, 2008: PLAINTIFF, along with other Deputies, was commended, in
writing, for traffic enforcement by MCHENRY COUNTY SHERIFF KEITH NYGREN.
b. May 7, 2008: PLAINTIFF, along with other Deputies, was commended, in writing, for traffic enforcement by MCHENRY COUNTY SHERIFF KEITH NYGREN.
c. May 21, 2008: Lt. Patenaude commended PLAINTIFF for his stellar performance of May 20, 2008 regarding the level of his work in conducting twenty-one (21) self-initiating contacts (seven seat belt violations, seven warning citations, multiple paper services) along with handling Area Three and responding to calls for service. PLAINTIFF also received a personal call from MCHENRY COUNTY SHERIFF KEITH NYGREN commending him on his performance of May 20, 2008.
d. From approximately May 5, 2008 to May 31, 2008, PLAINTIFF set a record for the MCHENRY COUNTY SHERIFF’S DEPARTMENT, issuing 125 traffic tickets, 75 traffic warnings, and effecting two arrests.
e. For the past twelve months, PLAINTIFF has consistently received commendations for traffic enforcement by his supervisors at the MCHENRY COUNTY SHERIFF’S DEPARTMENT every month.

F. The Actions of Defendants Have Caused Plaintiff Emotional and Pecuniary Damages.

60. Pursuant to the aforementioned events, PLAINTIFF has suffered the following damages:

f. PLAINTIFF was permanently suspended from the SWAT team causing PLAINTIFF’s salary to decrease;
g. PLAINTIFF was suspended as a Field Training Officer causing PLAINTIFF’s salary to decrease;
h. PLAINTIFF was suspended from his duties as a defensive tactics instructor causing PLAINTIFF’s salary to decrease;
i. PLAINTIFF has been passed over for numerous promotions/advancements;
j. PLAINTIFF has been stigmatized within the MCHENRY COUNTY SHERIFF’S DEPARTMENT causing PLAINTIFF emotional distress; and
k. PLAINTIFF has been criminally investigated causing PLAINTIFF emotional distress.
l. PLAINTIFF’s family has been intimidated by LUTZ and other supervisory personnel as a result of their unannounced visits to PLAINTIFF’s home causing PLAINTIFF emotional distress.
m. PLAINTIFF has lost his sole source of income as a result of his wrongful termination.

61. At all times relevant to this complaint, the INDIVIDUAL DEFENDANTS were duly appointed police officers and/or employees for the COUNTY OF MCHENRY. The INDIVIDUAL DEFENDANTS engaged in the conduct complained of in the course and scope of employment and while on duty. This action is being brought with regard to the individual capacity of the INDIVIDUAL DEFENDANTS.

CONSPIRACY ALLEGATIONS

62. Some or all of the INDIVIDUAL DEFENDANTS conspired to cause damage to
PLAINTIFF in the following manner:

a. agreeing to falsely institute administrative proceedings and/or criminal charges/proceedings against the PLAINTIFF;
b. agreeing not to report each other after instigating false administrative and/or criminal charge/proceedings against PLAINTIFF; and
c. generating false documentation and administrative and/or criminal proceedings against PLAINTIFF to cover-up for their own and each other’s misconduct.

63. In connection with the above conspiracy, the INDIVIDUAL DEFENDANTS entered into an express or implied agreement to participate in an unlawful act, namely the deprivation of PLAINTIFF’S First and Fourteenth Amendment rights under color of law in violation of §1983.

64. The INDIVIDUAL DEFENDANTS’ acts to deprive the PLAINTIFF of his First and Fourteenth Amendment rights were deliberately commmited in furtherance of a common scheme to harass and silence PLAINTIFF and to deprive him of his First and Fourteenth Amendment rights.

65. The conspiracy between the INDIVIDUAL DEFENDANTS’ was part of a broader custom or practice at the McHenry County Sheriff’s Department and the COUNTY OF MCHENRY and permeated the ranks of the McHenry County Sheriff’s Department employees.

66. As a result of this conspiracy, the INDIVIDUAL DEFENDANTS, by and through their conduct, proximately caused PLAINTIFF to, inter alia, suffer injury in the form of lost wages, loss of employment opportunities, emotional distress, humiliation, personal indignity, mental distress and suffering.

MONELL ALLEGATIONS

67. It is the custom, practice and/or police of the supervisors/agents and/or other employees of the McHenry County Sheriff’s Department and the COUNTY OF MCHENRY to perform the following acts or omissions:

a. generate false documentation to cover-up for the misconduct of McHenry County Sheriff’s Department officers;
b. fail to properly discipline officers from said police department who have committed act(s) of racial profiling;
c. fail to properly investigate a complaint of racial profiling perpetrated by McHenry County Sheriff’s Department police officers;
d. allow misconduct to occur in various types and severity such that police officers believe that they can engage in racial profiling without repercussions and/or significant repercussions;
e. fail to provide adequate sanctions/discipline to officers who engage in racial profiling, such that a permissive atmosphere exists among officers wherein they believe that they will not be disciplined (or significantly disciplined) for engaging in such behavior;
f. fail to properly investigate officers who engage in racial profiling, causing said officers to believe that they can engage in racial profiling and to not be disciplined or significantly disciplined for engaging in said behavior, which violates the rules, policies and/or procedures of the McHenry County Sheriff’s Department;
g. fail to take proper remedial measures to prevent and/or correct officers who engage in racial profiling, causing said officers to believe that they can engage in racial profiling and not be disciplined or significantly disciplined for engaging in illegal behavior;
h. fail to provide proper training to prevent officers from engaging in racial profiling and violating the rules, policies and procedures of the McHenry County Sheriff’s Department;
i. stigmatize employees of the McHenry County Sheriff’s Department who speak out against officers of the McHenry County Sheriff’s Department who engage in racial profiling;
j. issue verbal and written reprimands against employees of the McHenry County Sheriff’s Department who speak out against officers of the McHenry County Sheriff’s Department who engage in racial profiling;
k. instigate administrative and/or criminal proceedings against employees of the McHenry County Sheriff’s Department who speak out against officers of the McHenry County Sheriff’s Department who engage in racial profiling;
l. suspend from duty employees of the McHenry County Sheriff’s Department who speak out against officers of the McHenry County Sheriff’s Department who engage in racial profiling;
m. discredit employees of the McHenry County Sheriff’s Department who speak out against officers of the McHenry County Sheriff’s Department who engage in racial profiling; and
n. demote or otherwise retaliate against employees of the McHenry County Sheriff’s Department who speak out against officers of the McHenry County Sheriff’s Department who engage in racial profiling.

68. This practice and/or custom, as alleged above, has gone unchecked and been allowed to exist in the COUNTY OF MCHENRY for a significant period of time, so much so, that police officers for the COUNTY OF MCHENRY recognize that they will not be punished for committing said acts and that, in fact, said acts are either permitted or quietly consented to by superior officers of the McHenry County Sheriff’s Department in order to permit said conduct to re-occur.

69. A code of silence exists between officers of the Defendant Municipality. This code of silence obstructs the legal process (preventing the free flow of honest information with regard to acts of misconduct). This code of silence contributes to the generation of secrets, in the department, regarding police officer misconduct.

70. In an attempt to further strengthen this code of silence, when employees of the McHenry County Sheriff’s Department and the COUNTY OF MCHENRY attempt to break this code of silence, they are retaliated against and threatened with criminal investigations by supervising employees of the McHenry County Sheriff’s Department and the COUNTY OF MCHENRY, such that their employment is threatened, in an attempt to further strengthen this code of silence.

COUNT I

First Amendment Retaliation – Freedom of Speech

71. PLAINTIFF re-alleges paragraphs 1 – 70 as though fully set forth herein.

72. PLAINTIFF had a First Amendment right to free speech during and at all times relevant to this action.

73. PLAINTIFF exercised his right to free speech in the following ways:

n. commenting in the Departmental Questionnaire that he was concerned that civil rights violations and racial profiling were occurring in the McHenry County Sheriff’s Department;
o. making oral and written statements to various supervisors at the McHenry County Sheriff’s Department regarding his concerns of racial profiling;
p. making comments that officers engaging in racial profiling were untrustworthy; and
q. reporting his concerns of racial profiling to outside agencies.

74. The above referenced speech addressed matters of public concern.

75. The DEFENDANTS harassed and retaliated against PLAINTIFF for exercising his First
Amendment right to free speech.

76. As a result of said harassment and retaliation, PLAINTIFF suffered damages. PLAINTIFF’s injuries include lost wages, loss of employment opportunities, emotional distress, humiliation, personal indignity, mental distress and suffering.

WHEREFORE, PLAINTIFF demands compensatory damages from the DEFENDANTS. PLAINTIFF also demands punitive damages, costs and attorneys’ fees against the INDIVIDUAL DEFENDANTS. PLAINTIFF also demands whatever additional relief this Court deems equitable and just.

COUNT II

First Amendment Retaliation – Right to Petition Government for Redress

77. PLAINTIFF re-alleges paragraphs 1 – 70 as though fully set forth herein.

78. PLAINTIFF has rights secured to him by the Petition Clause of the First Amendment of the United States Constitution to exercise his First Amendment right to petition the government for redress.

79. PLAINTIFF exercised his First Amendment right to petition the government for redress by engaging in speech and activities that highlighted his concerns that the McHenry County Sheriff’s Department was engaging in and/or condoning, permitting, or turning a blind eye to racial profiling.

80. The above-referenced speech and activities involved matters of public concern.

81. The DEFENDANTS retaliated against PLAINTIFF for exercising his First Amendment right to petition the government for redress.

82. As a result of said retaliation, PLAINTIFF suffered damages. PLAINTIFF’s injuries
include lost wages, loss of employment opportunities, emotional distress, humiliation, personal indignity, mental distress and suffering.

WHEREFORE, PLAINTIFF demands compensatory damages from the DEFENDANTS. PLAINTIFF also demands punitive damages, costs and attorneys’ fees against the INDIVIDUAL DEFENDANTS. PLAINTIFF also demands whatever additional relief this Court deems equitable and just.

COUNT III

§ 1983 Conspiracy Claim

83. PLAINTIFF re-alleges paragraphs 1 – 70 as though fully set forth herein.

84. The aforementioned actions of the DEFENDANTS were the direct and proximate cause of the violations of the First Amendment of the Constitution of the United States of America.

WHEREFORE, PLAINTIFF demands compensatory damages from the DEFENDANTS. PLAINTIFF also demands punitive damages, costs and attorneys’ fees against the INDIVIDUAL DEFENDANTS. PLAINTIFF also demands whatever additional relief this Court deems equitable and just.

COUNT IV

Conspiracy Claim – State Law

85. PLAINTIFF re-alleges paragraphs 1 – 70 as though fully set forth herein.

86. The aforementioned actions of the DEFENDANTS were the direct and proximate cause of the violations of the First Amendment of the Constitution of the United States of America.

WHEREFORE, PLAINTIFF demands compensatory damages from the DEFENDANTS. PLAINTIFF also demands punitive damages, costs and attorneys’ fees against the INDIVIDUAL DEFENDANTS. PLAINTIFF also demands whatever additional relief this Court deems equitable and just.

COUNT VI

Monell

87. PLAINTIFF re-alleges paragraphs 1 – 70 as though fully set forth herein.

88. As a direct and proximate result of the aforementioned acts and omissions by the COUNTY OF MCHENRY and the McHenry County Sheriff’s Department there existed a custom, practice, policy, and/or pattern, either implicit or explicit, of the COUNTY OF MCHENRY and the McHenry County Sheriff’s Department in which officers were not held accountable for their wrongful and/or illegal acts and were retaliated against for speaking out against said acts.

89. Said custom, practice, policy, and/or pattern of the COUNTY OF MCHENRY and the McHenry County Sheriff’s Department encouraged, endorsed, created willful ignorance of, or otherwise promoted said wrongful acts of its employees.

90. As a direct and proximate result of said custom, practice, policy, and/or pattern, either implicit or explicit, of the COUNTY OF MCHENRY and the McHenry County Sheriff’s Department, PLAINTIFF was injured in a personal and pecuniary manner.

WHEREFORE, PLAINTIFF demands compensatory damages, costs and attorneys’ fees from the COUNTY OF MCHENRY. PLAINTIFF also demands whatever additional relief this Court deems equitable and just.

COUNT VII

745 ILCS 10/9-102 Claim Against the COUNTY OF MCHENRY

91. PLAINTIFF re-alleges paragraphs 1 – 70 as though fully set forth herein.

92. Defendant COUNTY OF MCHENRY is the employer of the INDIVIDUAL DEFENDANTS alleged above.

93. The INDIVIDUAL DEFENDANTS, as alleged above, committed the acts under color of law and in the scope of employment of the COUNTY OF MCHENRY.

WHEREFORE, should the DEFENDANTS be found liable for any of the alleged counts in this cause, PLAINTIFF demands that, pursuant to 745 ILCS 10/9-102, the COUNTY OF MCHENRY pay PLAINTIFF any judgment obtained against the INDIVIDUAL DEFENDANTS as a result of this Complaint.

COUNT VIII

Supplementary Claim for Respondeat Superior

94. PLAINTIFF re-alleges paragraphs 1 – 70 as though fully set forth herein.

95. The aforesaid acts of the INDIVIDUAL DEFENDANTS were in the scope of eemployment and therefore the Defendant COUNTY OF MCHENRY, as principal, is liable for the actions of its agent(s) under the doctrine of respondeat superior.

WHEREFORE, PLAINTIFF demands compensatory damages from the DEFENDANTS. PLAINTIFF also demands punitive damages, costs and attorneys’ fees against the INDIVIDUAL DEFENDANTS. PLAINTIFF also demands whatever additional relief this Court deems equitable and just.

JURY DEMAND

96. Plaintiff demands trial by jury.

Respectfully submitted,
s/ Blake Horwitz________
Attorney for the Plaintiff

Blake Horwitz
HORWITZ, RICHARDSON & BAKER LLC
Two First National Plaza
20 S. Clark St. Suite 500
Chicago, Illinois 60603
Ph (312) 676-2100
Fax (312) 372-7076

Labels: Anton Cundiff, Blake Horwitz Code of Silence, John Miller, Kathleen Seith, Keith Nygren, McHenry County Sheriff, Sgt. Popovits, William Lutz

McHenry County Community Foundation

P.0. Box 1844 Woodstock, IL 60098

815-338-GIVE (4483) phone 815-334-8613 fax

FOR IMMEDIATE RELEASE: Contact: Kate Halma, President/CEO

Phone: 815-338-GIVE (4483) Date: November 19, 2008

McHenry County Multi-Purpose Events Venue Finds a Home

November 19, 2008 – For nearly three years various interest groups have gathered to discuss all possible uses, designs, benefits and challenges associated with a multi-purpose events venue (MPEV). During recent months dedicated to site reviews, one has been identified within the corporate limits of the City of Woodstock, Illinois. The MPEV community partners are moving forward with an application to be considered before the City of Woodstock in weeks to come.

During this past year, representatives of Equity One Sports Development Corp. have joined forces with the McHenry County Community Foundation to identify, research, and evaluate a number of possible sites in McHenry County with the hope of securing a location that could provide all residents of McHenry County the opportunity to readily enjoy the benefits of such a facility.

“A highly comprehensive choice, the property located north of Route 14 across from Centegra Hospital in Woodstock continually rose to the top of the list,” stated Victor Narusis, Treasurer of the McHenry County Community Foundation Board of Directors who spearheaded the project on behalf of the Foundation. “Located in the central part of the County and along a regional traffic corridor, the site provides convenient access for all County residents and those who travel to McHenry County to enjoy one of the 50 home baseball games, or attend one of the many other events the venue will offer.”

In phase one of the developments of this 250+/- acre site would be the construction of a multi-million dollar state-of-the art, multi-use facility slated to be operational by spring of 2010 in time for opening day for a new Independent Professional Baseball team. The team will be owned and operated by McHenry/Lake Professional Baseball Group, LLC (MLPBG), and will be a member of the Frontier League which currently has twelve teams in seven Midwestern and Eastern states. “This unique facility will be designed to help us achieve our goal of creating inexpensive community entertainment through a fan-friendly atmosphere focusing on family, food and fun,” said Peter Heitman, Managing Partner for MLPBG. “This facility will not only enhance the quality of life for all of McHenry County, but will provide a positive economic impact to the entire area, as well.”

The proposed Woodstock facility is designed with an artificial turf allowing options for multi-sports and entertainment year-round use accommodating 6500 for field events and 10,000 for gatherings open to lawn seating. The long-term financial success of this venture is partly dependent on the non-team events to be held at the stadium. “More minor league facilities are being designed with amenities that promote non-team events,” said Mark Houser, President, Equity One Sports Development Corp. “In addition to youth, high school and college sporting events including baseball, softball, lacrosse, soccer and football, other programs that could take place in this multi-purpose facility include concerts, fund-raisers, festivals and trade shows.”

Narusis added, “Unlike similar facilities in the region, this stadium will be built with no request for public funding. Given the current state of the economy, and the limited resources available from most governmental entities, we are proud to present this project within this economic framework.”

Through a unique collaborative private/public partnership, the event center will be funded entirely through private donation and community investors. Beyond the immediate event center land donation by Tom Merryman of Woodstock, following completion of site preparation and grading operation, the remaining land will be made available to the McHenry County Community Foundation and the McHenry County Fair Board.

It is projected that the construction work during phase one will result in more than 60 jobs with over $3,000,000 in salaries pumped into the local economy. When phase one is completed, it is estimated that nearly 100 full and part-time jobs will be created with a local estimated economic impact of over $5,000,000 annually.

Additional organizations are interested in future plans to develop a fire museum, educational facilities (both indoors and out), a conservation site, and an exhibition hall that would provide for multiple uses including craft and trade fairs, farmers markets, antique shows, and regional organizational meeting facilities. Of significant importance is consideration by the McHenry County Fair Association to move the County Fair Grounds to the MPEV site. “A central location in McHenry County has always been our goal in relocating the Fair,” said McHenry County Fair Board President Dick Crone. “We need to be in a place where those who can benefit most from the experience of the Fair can get to it.”

Two unique natural features to the Woodstock site are a 53-acre quality wetland and a 22-acre oak savannah, both intended for preservation in the proposal with potential public access development for environmental education and leisure benefit to visitors. According to Kate Halma, President/CEO of the Community Foundation, Ken Koehler, Chairman of the McHenry County Board and Mayor Brian Sager of Woodstock have both expressed a strong desire to preserve the wetlands and oak savannah on the property. With assistance from the Foundation and their donors, the natural areas will be preserved from development impact.

Deliberation for a multi-purpose events venue resulted in the idea of a site that would support the unique cultures of McHenry County by providing proper amenities to stage agricultural, recreational, education and entertainment events while promoting positive environmental practices, and the importance of our non-profits – and then bringing it all together in one location. “This approach supports smart land use, economic resource planning, wise budget practices and would provide numerous resources with the many benefits of tourism,” said McHenry County Community Foundation Board Chairman Mark Ehlert.

“This unique public/private partnership provides a strong possibility for community favorites like Fall Diddley to return to McHenry County, and could allow the County Fair and the Midwest Fiber and Folk Art Festival to remain McHenry County traditions,” said Halma.

The Community Foundation has served as a local convener during the past year as a result of a grant received through the Grand Victoria Foundation of Chicago that encourages collaboration for the benefit of community improvements. Those wanting more information or wishing to participate in the McHenry County Multi-Purpose Events Venue are encouraged to contact the Community Foundation at 815-338-GIVE (4483) or GIVE@MCCFdn.org.

- end -

Labels: McHenry County Community Foundation

After I had edited and posted this first version of Ed Vrdolyak's plea agreement, I got the following email from Randall Samborne, the public information officer for the U.S. Attorney's Office. I am not up to starting over. Sorry.

Attached are the Vrdolyak plea agreement and superseding information – please note that the plea agreement handed out immediately after court was missing page 9. Also, please note that in the information, on page 2, paragraph 2, the words “no later than” were stricken. Sentencing was set for January 9, 2009 at 1:15 p.m. Thank you.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )
) No. 07 CR 298
vs. ) Judge Milton I. Shadur
)
EDWARD VRDOLYAK )

PLEA AGREEMENT

1. This Plea Agreement between the United States Attorney for the Northern
District of Illinois, PATRICK J. FITZGERALD, and defendant EDWARD VRDOLYAK, and his attorney, MICHAEL MONICO, is made pursuant to Rule 11 of the Federal Rules of Criminal Procedure and is governed in part by Rule 11(c)(1)(A) and Rule 11(c)(1)(B), as more fully set forth below. The parties to this Agreement have agreed upon the following:

Charge in This Case

2. The superseding information in this case charges defendant with conspiracy
to commit mail and wire fraud, in violation of Title 18, United States Code, Section 371.

3. Defendant has read the charge against him contained in the superseding
information, and that charge has been fully explained to him by his attorney.

4. Defendant fully understands the nature and elements of the crime with which he has been charged.

Charge to Which Defendant is Pleading Guilty

5. By this Plea Agreement, defendant agrees to enter a voluntary plea of guilty to the superseding information. The superseding information charges defendant with conspiracy to commit mail and wire fraud, in violation of Title 18, United States Code, Section 371.

Factual Basis

6. Defendant will plead guilty because he is in fact guilty of the charge contained in the superseding information. In pleading guilty, defendant admits the following facts and that those facts establish his guilt beyond a reasonable doubt:

Beginning in or about 2002 and continuing until at least January 2006, in the Northern District of Illinois, Eastern Division, and elsewhere, defendant and Stuart Levine, together with others known and unknown to the Grand Jury, did conspire and agree with each other to commit offenses against the United States, namely, to devise and participate in a scheme to defraud The Finch University of Health Sciences/Chicago Medical School (“CMS”) of money, property, and the intangible right to the honest services of Levine, by means of materially false and fraudulent pretenses, representations, and promises, and material omissions, and it was foreseeable that for the purposes of executing and attempting to execute such scheme, one or more members of the conspiracy did use and cause the use the use of private and commercial interstate carriers, and the transmission of wire communications in interstate commerce, in violation of Title 18, United States Code, Sections 1341, 1343, and 1346.

More specifically, in or about the summer of 2002, Levine contacted defendant about the potential sale of real estate at 1001 N. Dearborn Street, Chicago, Illinois “the Scholl Property”). At that time, as defendant knew, Levine was a member of the Board of Trustees of CMS and he was the chair of the CMS Board of Trustees’s Real Estate Committee.

Defendant knew that in those capacities, Levine owed a fiduciary duty and a duty of honest services to CMS.

Defendant and Levine discussed the Scholl Property, and defendant and Levine agreed that defendant would identify a purchaser for the Scholl Property who would pay a substantial fee for facilitating the purchase of the property, and that in turn Levine would steer the sale of the property to this purchaser and trigger payment of this fee.

Shortly thereafter, defendant told Levine that a real estate development firm called Smithfield Properties Development LLC (together, with multiple limited liability corporations formed in connection with Smithfield Properties Development LLC’s interest in acquiring the Scholl Property, referred to as “Smithfield Properties”) was interested in purchasing the Scholl Property, and defendant directed Levine to contact Smithfield Properties. Defendant knew that Levine met with representatives from Smithfield Properties, and Smithfield Properties then began to negotiate with CMS to purchase the Scholl Property.

Defendant and Levine later agreed that defendant would receive a payment from Smithfield Properties, and that defendant and Levine then would split this payment.

Defendant knew that in approximately March 2003, Levine used his position and influence with CMS to induce the CMS Board of Trustees to vote to negotiate an agreement with Smithfield Properties for Smithfield Properties to purchase the Scholl Property for approximately $9.5 million. Levine voted and spoke in favor of this negotiation. When competing proposals to purchase the Scholl Property for approximately $15 million and approximately $15.5 million, respectively, were subsequently made known to CMS, Levine caused these proposals to be disclosed to Smithfield Properties and defendant. Defendant and Levine further agreed that defendant would discuss these higher-priced proposals with Smithfield Properties.

In or about early June 2003, defendant told Levine that Smithfield Properties had determined to increase its offer for the Scholl Property to approximately $15 million.

Defendant and Levine agreed that Levine would use his position and influence with CMS to ensure that the CMS Board of Trustees accepted Smithfield Properties’s increased offer in order to ensure that defendant would receive the payment from Smithfield Properties and provide a portion to Levine.

Shortly before June 5, 2003, Smithfield Properties advised CMS of its offer to
purchase the Scholl Property for approximately $15 million. Defendant knew that Levine used his position and influence with CMS to induce the CMS Board of Trustees to vote to accept Smithfield Properties’s purchase offer and enter into a purchase agreement to sell the Scholl Property to Smithfield Properties for approximately $15 million. Defendant knew that Levine voted to approve this purchase agreement and Levine took steps to cause other CMS trustees to vote to approve the purchase agreement. Defendant also knew that Levine did not disclose to CMS that defendant and Levine had agreed that Levine would receive a kickback in connection with Smithfield Properties’s purchase of the Scholl Property and that defendant would receive the payment from Smithfield Properties and provide a portion to Levine.

After CMS agreed to sell the Scholl Property to Smithfield Properties, defendant entered into an agreement with Smithfield Properties wherein Smithfield Properties agreed to pay defendant a fee of 10% of its purchase price of the Scholl Property, for $1.5 million.

Defendant and Smithfield Properties agreed that the fee would be paid at a future date, upon the completion of the development of the Scholl Property and the repayment of certain expenses and financing.

On or about November 1, 2004, CMS and Smithfield Properties closed their purchase agreement transaction and Smithfield Properties acquired the Scholl Property. After that date and continuing through approximately January 2006, defendant and Levine had a series of discussions, regarding when defendant would receive the $1.5 million payment from Smithfield Properties and how defendant and Levine would arrange for Levine secretly to get his money from defendant. During this time period, defendant talked with Smithfield Properties about the timing of Smithfield Properties’s payment to defendant and defendant then shared this information with Levine.

Defendant knew that Levine intentionally concealed from and failed to disclose to CMS material facts relating to the financial arrangements for Smithfield Properties’s purchase of the Scholl Property, including the agreement between defendant and Levine that, notwithstanding Levine’s position as a member of the CMS board of trustees, Levine would misuse his position and influence as a CMS trustee and accept a kickback in connection with that transaction.

Defendant acknowledges that it was reasonably foreseeable to him that for the purposes of executing and attempting to execute the scheme, one or more members of the conspiracy would use and cause the use of private and commercial interstate carriers, and the transmission of wire communications in interstate commerce. Defendant further acknowledges that in furtherance of and to accomplish the objectives of the conspiracy, on or about June 9, 2003, defendant caused Smithfield Properties to send to a CMS attorney by a commercial interstate carrier an envelope containing four original executed signature pages of the purchase agreement between Smithfield Properties and CMS relating to Smithfield Properties’s purchase of the Scholl Property. Further, on or about March 11, 2004, defendant caused Smithfield Properties to wire transfer $200,000 from Smithfield Properties’s account at LaSalle National Bank in Chicago through New York, New York to CMS’s account at First Midwest Bank in Waukegan, Illinois, which was part of Smithfield Properties’s payment for the Scholl Property.

Maximum Statutory Penalties

7. Defendant understands that the charge to which he is pleading guilty carries the following statutory penalties:

a. A maximum sentence of 5 years' imprisonment. This offense also carries a maximum fine of $250,000. Defendant further understands that the judge also may impose a term of supervised release of not more than three years.
b. Defendant further understands that should the Court find that restitution is appropriate, the Court will order restitution to the victims of the offense in an amount to be determined by the Court at sentencing.
c. In accord with Title 18, United States Code, Section 3013, defendant will be assessed $100 on the charge to which he has pled guilty, in addition to any other penalty or restitution imposed.

Sentencing Guidelines Calculations

8. Defendant understands that in imposing sentence the Court will be guided by the United States Sentencing Guidelines. Defendant understands that the Sentencing
Guidelines are advisory, not mandatory, but that the Court must consider the Guidelines in determining a reasonable sentence.

9. For purposes of calculating the Sentencing Guidelines, the parties agree on the following points, except as specified below:

a. Applicable Guidelines. The Sentencing Guidelines to be considered in this case are those in effect at the time of sentencing. The following statements regarding the calculation of the Sentencing Guidelines are based on the Guidelines Manual currently in effect, namely the November 2007 Guidelines Manual.

b. Offense Level Calculations.

i. The base offense level for the charge in the superseding information is 6, pursuant to Guideline §2B1.1(a)(2);
ii. Pursuant to Guideline §2B1.1(b)(1)(I), because the loss was more than $1,000,000 but less than $2,500,000, the offense level is increased by 16 levels;
iii. The parties agree that defendant neither qualifies for a reduction in his offense level pursuant to Guideline §3B1.2 nor does defendant qualify for an increase in his offense level pursuant to Guideline §3B1.1.
iv. The parties agree that defendant does not qualify for an enhancement for obstruction of justice, pursuant to Guideline §3C1.1.
v. Defendant has clearly demonstrated a recognition and affirmative acceptance of personal responsibility for his criminal conduct. If the government does not
receive additional evidence in conflict with this provision, and if defendant continues to accept responsibility for his actions within the meaning of Guideline §3E1.1(a), including by furnishing the United States Attorney’s Office and the Probation Office with all requested financial information relevant to his ability to satisfy any fine or restitution that may be imposed in this case, a two-level reduction in the offense level is appropriate;
vi. Defendant did not timely notify the government of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the Court to allocate its resources efficiently, within the meaning of Guideline §3E1.1(b). Therefore, even if the Court determines the offense level to be 16 or greater prior to determining that defendant is entitled to a two-level reduction for acceptance of responsibility, defendant will not receive an additional one-level reduction in the offense level pursuant to Guideline §3E1.1(b).
vii.Anticipated Advisory Sentencing Guidelines Range.
viii. Therefore, based on the facts now known to the government, the anticipated offense level is 20, which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of 33 to 41 months’ imprisonment, in addition to any supervised release, fine, and restitution the Court may impose.

c. Criminal History Category. With regard to determining defendant's criminal history points and criminal history category, based on the facts now known to the government, defendant’s criminal history points equal zero and defendant’s criminal history category is I.

d. Defendant and his attorney and the government acknowledge that the above Guideline calculations are preliminary in nature and based on facts known to the parties as of the time of this Plea Agreement. Defendant understands that the Probation Office will conduct its own investigation and that the Court ultimately determines the facts and law relevant to sentencing, and that the Court's determinations govern the final Guideline calculation. Accordingly, the validity of this Agreement is not contingent upon the probation officer’s or the Court's concurrence with the above calculations, and defendant shall not have a right to withdraw his plea on the basis of the Court's rejection of these calculations.

e. Both parties expressly acknowledge that while none of the Guideline calculations set forth above are binding on the Court or the Probation Office, the parties have agreed pursuant to Fed.R.Crim.P. 11(c)(1)(B) that certain components of those calculations

– specifically, those set forth above in subparagraphs (b)(i)-(v) of this paragraph – are binding on the parties, and it shall be a breach of this Plea Agreement for either party to present or advocate a position inconsistent with the agreed calculations set forth in the identified subparagraphs.

f. Defendant understands that with the exception of the Guideline provisions identified above as binding on the parties, the Guideline calculations set forth above are non-binding predictions, upon which neither party is entitled to rely, and are not governed by Fed.R.Crim.P. 11(c)(1)(B). Errors in applying or interpreting any of the Sentencing Guidelines (other than those identified above as binding) may be corrected by either party prior to sentencing. The parties may correct these errors either by stipulation or by a statement to the Probation Office or the Court, setting forth the disagreement regarding the applicable provisions of the Guidelines. The validity of this Plea Agreement will not be affected by such corrections, and defendant shall not have a right to withdraw his plea, nor the government the right to vacate this Plea Agreement, on the basis of such corrections.

Agreements Relating to Sentencing

10. The government will recommend that defendant receive a term of
imprisonment of 41 months. Defendant is free to recommend any sentence.

11. It is understood by the parties that the sentencing judge is neither a party to nor bound by this Plea Agreement and may impose a sentence up to the maximum penalties as set forth above. Defendant further acknowledges that if the Court does not accept the sentencing recommendation of the parties, defendant will have no right to withdraw his guilty plea.

12. Regarding restitution, the parties acknowledge that any restitution shall be due immediately, and paid pursuant to a schedule to be set by the Court at sentencing.

13. Defendant agrees to pay the special assessment of $100 at the time of sentencing with a cashier’s check or money order payable to the Clerk of the U.S. District Court.

14. After sentence has been imposed on the count to which defendant pleads guilty as agreed herein, the government will move to dismiss the superseding indictment and indictment as to this defendant.

Presentence Investigation Report/Post-Sentence Supervision

15. Defendant understands that the United States Attorney's Office in its
submission to the Probation Office as part of the Pre-Sentence Report and at sentencing shall fully apprise the District Court and the Probation Office of the nature, scope and extent of defendant's conduct regarding the charge against him, and related matters. The government will make known all matters in aggravation and mitigation relevant to the issue of sentencing.

16. Defendant agrees to truthfully and completely execute a Financial Statement (with supporting documentation) prior to sentencing, to be provided to and shared among the Court, the Probation Office, and the United States Attorney’s Office regarding all details of his financial circumstances, including his recent income tax returns as specified by the probation officer. Defendant understands that providing false or incomplete information, or refusing to provide this information, may be used as a basis for denial of a reduction for acceptance of responsibility pursuant to Guideline §3E1.1 and enhancement of his sentence for obstruction of justice under Guideline §3C1.1, and may be prosecuted as a violation of Title 18, United States Code, Section 1001 or as a contempt of the Court.

17. For the purpose of monitoring defendant's compliance with his obligations to pay a fine and restitution during any term of supervised release or probation to which defendant is sentenced, defendant further consents to the disclosure by the IRS to the Probation Office and the United States Attorney’s Office of defendant's individual income tax returns (together with extensions, correspondence, and other tax information) filed subsequent to defendant's sentencing, to and including the final year of any period of supervised release or probation to which defendant is sentenced. Defendant also agrees that a certified copy of this Plea Agreement shall be sufficient evidence of defendant's request to the IRS to disclose the returns and return information, as provided for in Title 26, United States Code, Section 6103(b).

Acknowledgments and Waivers Regarding Plea of Guilty

Nature of Plea Agreement

18. This Plea Agreement is entirely voluntary and represents the entire agreement between the United States Attorney and defendant regarding defendant's criminal liability in case 07 CR 298.

19. This Plea Agreement concerns criminal liability only. Except as expressly set forth in this Agreement, nothing herein shall constitute a limitation, waiver or release by the United States or any of its agencies of any administrative or judicial civil claim, demand or cause of action it may have against defendant or any other person or entity. The obligations of this Agreement are limited to the United States Attorney's Office for the Northern District of Illinois and cannot bind any other federal, state or local prosecuting, administrative or regulatory authorities, except as expressly set forth in this Agreement.

Waiver of Rights

20. Defendant understands that by pleading guilty he surrenders certain rights, including the following:

a. Right to be charged by indictment. Defendant understands that he has a right to have the charge prosecuted by an indictment returned by a concurrence of twelve or more members of a grand jury consisting of not less than sixteen and not more than twenty-three members. By signing this Agreement, defendant knowingly waives his right to be prosecuted by indictment and to assert at trial or on appeal any defects or errors arising from the information, the information process, or the fact that he has been prosecuted by way of information.
b. Trial rights. Defendant has the right to persist in a plea of not guilty to the charge against him, and if he does, he would have the right to a public and speedy trial.

i. The trial could be either a jury trial or a trial by the judge sitting without a jury. Defendant has a right to a jury trial. However, in order that the trial be conducted by the judge sitting without a jury, defendant, the government, and the judge all must agree that the trial be conducted by the judge without a jury.
ii. If the trial is a jury trial, the jury would be composed of twelve citizens from the district, selected at random. Defendant and his attorney would participate in choosing the jury by requesting that the Court remove prospective jurors for cause where actual bias or other disqualification is shown, or by removing prospective jurors without cause by exercising peremptory challenges.
iii. If the trial is a jury trial, the jury would be instructed that defendant is presumed innocent, that the government has the burden of proving defendant guilty beyond a reasonable doubt, and that the jury could not convict him unless, after hearing all the evidence, it was persuaded of his guilt beyond a reasonable doubt. The jury would have to agree unanimously before it could return a verdict of guilty or not guilty.
iv. If the trial is held by the judge without a jury, the judge would find the facts and determine, after hearing all the evidence, whether or not the judge was persuaded that the government had established defendant's guilt beyond a reasonable doubt.
v. At a trial, whether by a jury or a judge, the government would be required to present its witnesses and other evidence against defendant. Defendant would be able to confront those government witnesses and his attorney would be able to crossexamine them.
vi. At a trial, defendant could present witnesses and other evidence in his own behalf. If the witnesses for defendant would not appear voluntarily, he could require their attendance through the subpoena power of the Court. A defendant is not required to present any evidence.
vii. At a trial, defendant would have a privilege against selfincrimination so that he could decline to testify, and no inference of guilt could be drawn from his refusal to testify. If defendant desired to do so, he could testify in his own behalf.

c. Appellate rights. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial, and may only appeal the validity of this plea of guilty and the sentence imposed. Defendant understands that any appeal must be filed within 10 days of the entry of the judgment of conviction.

d. Defendant understands that by pleading guilty he is waiving all the rights set forth in the prior paragraphs, with the exception of the appellate rights specifically preserved above. Defendant's attorney has explained those rights to him, and the consequences of his waiver of those rights.

Other Terms

21. Defendant agrees to cooperate with the United States Attorney’s Office in
collecting any unpaid fine and restitution for which defendant is liable, including providing financial statements and supporting records as requested by the United States Attorney’s Office.

22. The United States agrees not to seek additional criminal charges in the Northern District of Illinois against defendant relating to the events described in the indictment filed on October 30, 2008 in United States v. William Cellini, 08 CR 888 (N.D. Ill.). However, nothing in this Plea Agreement limits the United States in prosecution of defendant in other districts or for crimes not described herein, except as expressly set forth in this Agreement.

23. At or before the time of sentencing, defendant agrees to assign to Rosalind
Franklin University of Medicine and Sciences all rights and interest defendant has in the compensation agreement dated September 15, 2002 and signed by Robert Buono on behalf of Smithfield Properties Development LLC and by defendant relating to the purchase of the real estate at 1001 N. Dearborn Street, Chicago, Illinois.

Conclusion

24. Defendant understands that this Plea Agreement will be filed with the Court, will become a matter of public record and may be disclosed to any person.

25. Defendant understands that his compliance with each part of this Plea Agreement extends throughout the period of his sentence, and failure to abide by any term of the Agreement is a violation of the Agreement. Defendant further understands that in the event he violates this Agreement, the government, at its option, may move to vacate the Agreement, rendering it null and void, and thereafter prosecute defendant not subject to any of the limits set forth in this Agreement, or may move to resentence defendant or require defendant’s specific performance of this Agreement. Defendant understands and agrees that in the event that the Court permits defendant to withdraw from this Agreement, or defendant breaches any of its terms and the government elects to void the Agreement and prosecute defendant, any prosecutions that are not time-barred by the applicable statute of limitations on the date of the signing of this Agreement may be commenced against defendant in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of such prosecutions.

26. Should the judge refuse to accept defendant's plea of guilty, this Plea
Agreement shall become null and void and neither party will be bound thereto.

27. Defendant and his attorney acknowledge that no threats, promises, or representations have been made, nor agreements reached, other than those set forth in this Plea Agreement to cause defendant to plead guilty.

28. Defendant acknowledges that he has read this Plea Agreement and carefully reviewed each provision with his attorney. Defendant further acknowledges that he understands and voluntarily accepts each and every term and condition of this greement.


AGREED THIS DATE: _____________________
PATRICK J. FITZGERALD EDWARD VRDOLYAK
United States Attorney Defendant
CHRISTOPHER NIEWOEHNER MICHAEL MONICO
Assistant U.S. Attorney Attorney for Defendant
____________________________
KAARINA SALOVAARA
Assistant U.S. Attorney

Labels: Bill Cellini, Ed Vrdolyak, Smikthfield Properties Development, Stuart Levine