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United States v. Buncich

United States Court of Appeals, Seventh Circuit

June 5, 2019

United States of America, Plaintiff-Appellee,
v.
John Buncich, Defendant-Appellant.

          Argued March 26, 2019

          Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:16-cr-00161-JTM-JEM-1 - James T. Moody, Judge.

          Before Bauer, Rovner, and Brennan, Circuit Judges.

          Bauer, Circuit Judge.

         John Buncich was the Sheriff of Lake County, Indiana. He was charged by a grand jury with five counts of wire fraud and one count of accepting bribes. He was found guilty on all six counts. For the reasons that follow, we vacate his conviction on Counts I-III, affirm as to Counts IV-VI, and remand for resentencing.

         BACKGROUND

         John Buncich was elected Sheriff of Lake County, Indiana, and took office on January 1, 2011. He named Timothy Downs his Chief of Police, the highest ranking officer under the sheriff. The sheriff was responsible for providing the county police with towing services. Buncich created a list of twelve tow operators and assigned each to a defined territory. Some operators were assigned to specific police units and some were responsible for completing certain assignments such as heavy towing-the towing of semi trucks and other large vehicles. Buncich was the final decision maker regarding territories and assignments.

         Buncich held an annual campaign fundraiser called "Summer Fest" and directed Downs and other subordinates to sell tickets to the event. Towing companies were specifically targeted by the individuals selling tickets.[1] Downs collected the ticket sales revenue and gave it to Buncich; he testified that he would not have kept his job if he refused to sell tickets.

         The county's second largest tower was Willie Szarmach of CSA Towing. Szarmach and CSA contributed to Buncich to ensure a spot on the tow list. During the campaign Szarmach gave $500 cash to Buncich through an intermediary and CSA gave the campaign a check for $2, 000, the maximum allowed by Indiana law. (Szarmach also gave cash above that limit.) After the election, Buncich assigned Szarmach light and heavy towing territories near Gary, Indiana. CSA was assigned gang unit towing shortly after Szarmach gave $1, 000 cash to Buncich; CSA was also given towing territory assigned to other companies whose owners either paid only by check or declined to buy tickets entirely.

         Scott Jurgensen, who owned Samson Relocation & Towing, was assigned the auto theft towing detail. About five months after Samson began towing, Downs approached Jurgensen about making payments. The two largest towers told Jurgensen they were paying off Buncich.

         On April 8, 2014, Jurgensen met with Downs at a restaurant. (Unbeknownst to Downs, Jurgensen had become a confidential informant for the FBI.) Jurgensen told Downs he would pay "five hundred cash, two thousand dollar check like I did last time." He asked Downs if he could get a rival company's territory for another $2, 500. Downs told him everything was "fair game" after the upcoming Democratic primary in May. Jurgensen gave him a check and cash; Downs said that he would"still need more after May."

         In June, Jurgensen and Szarmach met with Downs and expressed an interest in increasing their territory. They asked if Buncich was planning on "trim[ming] down the flock." Downs said "some people that weren't very friendly [will] probably bite the dust," but they would likely have to wait until after the November election to get more of the auto detail. Szarmach said he could provide $10, 000 with no paper trail.

         The trio met again on October 8, 2014, when Downs told Jurgensen he was selling Democratic fundraiser tickets. Downs said he did not "like to pressure anybody into anything" and that a purchase "don't gotta be big." He also said he no longer sold tickets to S & S, another towing company, because he believed its owner tried to record him.

         The next day Downs informed Jurgensen and Szarmach that Buncich had decided to take all heavy towing away from S & S and give it to Szarmach. He also showed them fundraiser tickets that Buncich was "real interested in" and they agreed to pay $2, 500. On October 14, 2014, Jurgensen and Szarmach each gave Downs $500 cash and a check for $2, 000 made out to the Lake County Central Democratic Committee. When they asked how much the county's largest tower, Jerry Kundich had paid, Downs said that Kundich dealt with Buncich directly.

         Buncich sent out an email regarding "CSA's newly revised towing district" on June 1, 2015. Two days later Jurgensen provided Downs with $2, 500 cash for twenty-five tickets to Buncichs's campaign fundraiser. He asked if he would be "safe and left alone on the Lake County tow list" and Downs assured he would be until Downs himself ran for sheriff. After the meeting Downs was confronted by FBI agents and agreed to cooperate with the investigation.

         A few days later Downs met with Szarmach and Kundich who each gave him $2, 500 cash. On July 15, 2015, Downs gave $7, 500 he had collected from Jurgensen, Szarmach, and Kundich to Buncich. When Downs asked Buncich about Jurgensen he ...


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