                             2016 IL App (2d) 160076
                                  No. 2-16-0076
                         Opinion filed September 23, 2016
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 12-CF-1736
                                       )
DAVID M. TEPPER,                       ) Honorable
                                       ) Liam C. Brennan,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
       Justices McLaren and Zenoff concurred in the judgment and opinion.

                                            OPINION

¶1     This appeal from a judgment of conviction raises questions of first impression concerning

section 33E-17 of the Criminal Code of 1961 (Code) (720 ILCS 5/33E-17 (West 2012)). This

statute criminalizes a local government employee’s “unlawful participation” in a contract with

his or her government employer without the employer’s informed consent. Enacted in 1999 (see

Pub. Act 90-800, § 5 (eff. Jan. 1, 1999)), the statute provides as follows:

       “Whoever, being an officer, director, agent, or employee of, or affiliated in any capacity

       with any unit of local government or school district participates, shares in, or receiv[es][1]



       1
           Here, the legislature has used the word “receiving” rather than “receives.” We merely
2016 IL App (2d) 160076


       directly or indirectly any money, profit, property, or benefit through any contract with the

       unit of local government or school district, with the intent to defraud the unit of local

       government or school district is guilty of a Class 3 felony.” Id.

Although this is a question of first impression with respect to section 33E-17, we note that there

are similar prohibitions in other Illinois statutes (see 50 ILCS 105/3 (West 2012); 65 ILCS 5/3.1-

55-10 (West 2012)), as well as a rich history of precedent addressing undisclosed conflicts of

interest by government officials. See, e.g., People v. Scharlau, 141 Ill. 2d 180 (1990); Miller v.

County of Lake, 79 Ill. 2d 481 (1980); People v. Savaiano, 66 Ill. 2d 7 (1976). With that in mind,

we turn to the facts of this case, which may be stated simply.

¶2     In 2005, defendant, David M. Tepper, began working as the manager of the information

technology (IT) department of the Forest Preserve District of Du Page County (the District).

Defendant was the second-highest-ranking person in the District’s IT department. The director of

the IT department, and defendant’s immediate superior, was Mark McDonald. Like most

government agencies, the District has regulations in place that prohibit its employees from

obtaining supplemental employment without prior authorization from the District. See Du Page

County Forest Preserve District Ordinance No. 92-255 (approved Aug. 4, 1992). The purpose of

such rules is to protect against conflicts of interest or other forms of employment that might

reflect adversely on the government as an employer. See Miller, 79 Ill. 2d at 490. In September

2005, defendant signed a form acknowledging that he had received an employee handbook and

was aware of and would abide by the District’s regulations, including the prohibition on

unauthorized supplemental employment.




note the discrepancy, which in this case is immaterial.



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¶3     In June 2008, defendant became an “independent sales agent” for USA Digital, an

Oklahoma-based company that sells equipment and services for wide area networks. Wide area

networks, or WANs, are discrete telecommunications and broadband networks, which provide

phone service as well as Internet access. USA Digital’s agents earn commissions by closing sales

contracts for USA Digital’s bandwidth and services. In his agent agreement with USA Digital,

defendant directed USA Digital to pay his sales commissions not to him directly but instead to a

corporation named “Integrated Design Solutions” (IDS), which defendant had established some

years earlier. It is undisputed that defendant never disclosed his relationship with USA Digital or

IDS to the District.

¶4     In January 2009, the District Board held a planning meeting. There, McDonald

introduced defendant to the Board. Defendant then gave a presentation in which he told the

Board that the District’s three-year contract with its then-current WAN provider, Qwest, would

be expiring. Minutes from that meeting indicate that defendant told the Board that the District’s

network was around 0.8 megabytes per second and that “[s]taff would like to increase this speed

to 2.515 megabytes per second to accommodate [the] increased growth of *** applications and

requirements.” The minutes are ambiguous as to whether it was defendant or McDonald who

recommended that, in a new contract with Qwest, the District should seek to increase its network

speed by roughly 300%. The minutes indicate that “staff” would, at the Board’s next meeting,

propose a three-year contract with Qwest costing approximately $21,500 per month.

¶5     Inexplicably, the WAN contract was not competitively bid, even though, at the time,

competitive bidding was required under state law for all of the District’s contracts worth over

$20,000. See 70 ILCS 805/8(b) (West 2012). (The limit was recently raised to $25,000. See Pub.

Act 99-771, § 10 (eff. Aug. 12, 2016)). At any rate, in March 2009, McDonald and “staff”




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2016 IL App (2d) 160076


submitted to the Board a draft resolution seeking to enter into a contract with USA Digital—not

Qwest. The Board approved the resolution and in May 2009 the District executed a contract with

USA Digital, which ran from September 2009 to October 2012. Under the agreement, the

District would pay USA Digital around $28,600 a month, or $1,030,000, for three years of

broadband service. The Board’s president and a commissioner both testified that the resolution

would not have been adopted and the contract would not have been executed had the District

known of defendant’s connection to IDS or USA Digital.

¶6     Once the deal was closed with the District, USA Digital began to pay commissions to

IDS, including a $12,000 bonus for the contract itself and approximately $2,000 per month for

each month of the contract. A few months into the contract, a vice president from USA Digital

came to Du Page County to meet with defendant (who was “USA Digital’s sales agent”) and “the

client,” i.e., McDonald, who was the District’s “representative.” The vice president did not know

that defendant worked for the District, or that defendant worked with McDonald, or that

McDonald stood to gain anything from defendant’s commissions. The vice president thought he

was supervising defendant as a sales agent.

¶7     The scheme was discovered in November 2011. Shortly thereafter defendant and

McDonald left the District’s employment, and USA Digital ceased its commission payments to

IDS in July 2012, which was 29 months into the contract. By that time, IDS had received nearly

$80,000 in commissions, and evidence showed that both defendant and McDonald had made

withdrawals from IDS’s bank account.

¶8     The State charged defendant and McDonald with a number of offenses. Specifically,

defendant was charged with 29 counts of unlawful participation, one for each of the monthly

commission payments deposited into IDS’s bank account (the first three deposits included




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2016 IL App (2d) 160076


defendant’s $12,000 bonus), which were withdrawn by either defendant or McDonald.

Defendant opted for a severed bench trial at which the evidence we have discussed was

presented. In closing argument, defendant asserted that his participation in the USA Digital

contract was not “with the intent to defraud” as required under section 33E-17, because the

Forest Preserve “had not sustained any *** pecuniary loss.” Rather, defendant argued, the

District had received the telecom services for which it had contracted; furthermore, one of the

District’s commissioners even testified that the USA Digital contract seemed like “a good deal.”

Defendant also argued that a conviction of the offense of unlawful participation could not be

based on “an omission,” which is how defendant characterized his failure to disclose his

financial interests and his supplemental employment to the District. Instead, according to

defendant, a conviction of unlawful participation would have to be based on some “affirmative

act” of deception.

¶9     In finding defendant guilty, the trial court disagreed with both arguments, stating as

follows:

               “I think all the parties would have to agree that if a public employee in Tepper’s

       position disclosed to his [employer] a relationship such as the agency relationship with

       USA Digital and the Forest Preserve, nevertheless, went ahead with the contract, no one

       could argue an intent to defraud in that circumstance. But absent such a disclosure in this

       context, I find that Tepper’s actions do, in fact, constitute an intent to defraud. Indeed,

       Tepper’s intent to defraud can be more easily gleaned when one considers the fact that he

       is, essentially, sharing half of the USA Digital commissions with his boss, Director

       McDonald. Clearly, this transfer of Forest Preserve monies, albeit indirectly, is designed

       to defraud the Forest Preserve.”




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2016 IL App (2d) 160076


In addition, the court found that the victim need not sustain a pecuniary loss; rather, the court

found, “deception coupled with bringing financial gain to one’s self can equal the intent to

defraud” for purposes of the unlawful participation statute.

¶ 10   At sentencing, defendant argued that the court should enter only a single sentence for one

count of unlawful participation. The trial court disagreed and sentenced defendant to two years’

probation with 180 days to be served in the county jail on each of the 29 unlawful participation

counts. The court ordered defendant to pay a single $83,000 fine as opposed to restitution. The

court stated that, while the District might not have suffered a pecuniary loss, defendant was not

entitled to keep his “ill-[ ]gotten gains.” The court further stated that defendant’s sentence was

“necessary to deter other public employees from engaging in [similar] criminal conduct ***.”

¶ 11   Defendant timely appealed and requested a stay of his sentence, which we granted. As

noted, this is a case of first impression concerning section 33E-17, and it requires us to determine

whether the intent-to-defraud element in the unlawful participation statute requires that the

offender commit some affirmative act of deception and also whether it requires that the victim

suffer some sort of pecuniary loss. Now, with the benefit of full briefing, we determine that the

statute contains neither requirement and, accordingly, we lifted our stay by separate order.

¶ 12   Defendant’s primary contention is that his conviction was based on insufficient evidence

of his “intent to defraud” and that no reasonable trier of fact could have found otherwise. Cf.

Jackson v. Virginia, 443 U.S. 307, 318 (1979); People v. Siguenza-Brito, 235 Ill. 2d 213, 228

(2009); People v. Collins, 106 Ill. 2d 237, 261 (1985). But defendant’s sufficiency-of-the-

evidence argument puts the cart before the horse. The overarching question raised by his

argument concerns our construction of the phrase “with the intent to defraud” in section 33E-

17—whether it requires an “affirmative act” on the defendant’s part as opposed to “an omission”




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2016 IL App (2d) 160076


(again, these are defendant’s labels, not ours), and whether it also requires that the victim in an

unlawful participation scheme sustain some sort of concrete financial loss. These are questions

about what the statute requires, and not necessarily challenges to the State’s evidence. Therefore,

to the extent that defendant’s arguments present questions of statutory interpretation, we review

them de novo. People v. Cardamone, 232 Ill. 2d 504, 511 (2009).

¶ 13   We first address defendant’s contention that unlawful participation requires an

“affirmative act” of deceit as opposed to “mere silence.” According to defendant, he had no

“legal duty” to disclose his connections to IDS and USA Digital to the District and thus “an

omission” concerning his financial interests could not amount to fraud, or conduct undertaken

“with the intent to defraud,” under section 33E-17. For support, defendant relies on the

voluntary-act requirement in section 4-1 of the Code (720 ILCS 5/4-1 (West 2012)), which

plainly does not support defendant’s position. It is true that “a voluntary act” is a material

element of every criminal offense, but a voluntary act “includes an omission to perform a duty

which the law imposes on the offender.” (Emphasis added.) Id. And the duty “the law” imposed

on defendant was not fiduciary (see People v. Grever, 222 Ill. 2d 321, 337 (2006)); rather, the

duty “the law” imposed on defendant was not to violate “the law”—in this case, section 33E-17,

the statutory prohibition against unlawful participation—whether by voluntary act or (in this

case) by voluntary omission. Cf. People v. Banks, 161 Ill. 2d 119, 132-33 (1994) (rejecting

similar argument that charges were based on an “omission” to perform under “a legal duty” in a

case of child neglect).

¶ 14   True enough, defendant’s deception was carried out in large part by his silence, as

opposed to speech, concerning his supplemental employment, but in the context of fraud, that is

a distinction without a difference. Like speech, silence can be intentionally misleading, and when




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2016 IL App (2d) 160076


silence is intentional, it can be deemed “as much a fraud at law as an actual affirmative false

representation or act ***.” (Internal quotation marks omitted.) Henderson Square Condominium

Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 40 (collecting cases); see also People v.

Yarbrough, 128 Ill. 2d 460, 473 (1989) (explaining that fraud is any conduct that is “calculated

to deceive”). As another panel of this court recently wrote, “[f]raud encompasses anything

calculated to deceive, as in acts, omissions and concealment including silence if accompanied by

deceptive conduct or [the] suppression of material facts.” (Emphasis added; internal quotation

marks and omissions omitted.) People v. Oshana, 2012 IL App (2d) 101144, ¶ 36. So, to the

extent that section 33E-17 requires an affirmative act, silence meets that requirement.

¶ 15   Defendant also argues that a conviction of unlawful participation under section 33E-17

requires the State to plead and prove that a unit of local government sustained a concrete

pecuniary loss as a result of the defendant’s conduct. We hold that there is no such requirement.

¶ 16   Defendant’s argument is a variation on a common defense raised by criminal defendants

in theft-by-deception, fraud, and false-pretenses cases. In such cases:

       “The defendant sometimes urges in his defense that, when the transaction which his

       misrepresentations brought about was over, the victim had suffered no pecuniary loss.

       *** Of course, a civil suit would not lie against the defendant when the victim suffered

       no damage, at least if the victim made out as well financially as he bargained for.[ ] But on

       the criminal side, it is generally held that the lack of financial loss [to the victim] is no

       defense to false pretenses.” 3 Wayne R. LaFave, Substantive Criminal Law § 19.7(i)(3)

       (2d ed. 2003).

¶ 17   Illinois case law bears out Professor LaFave’s conclusion. It has been held that proof of a

victim’s lack of financial loss is no impediment to a conviction of odometer-rollback fraud




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2016 IL App (2d) 160076


(Yarbrough, 128 Ill. 2d at 479), or workers’ compensation fraud (Oshana, 2012 IL App (2d)

101144, ¶ 31), or theft by deception (People v. Haissig, 2012 IL App (2d) 110726, ¶ 23). This

no-loss-needed understanding of fraud and theft by deception is the prevailing view in most other

jurisdictions as well. See Haissig, 2012 IL App (2d) 110726, ¶¶ 36-43 (collecting cases); United

States v. Bush, 522 F.2d 641, 646 (7th Cir. 1975); LaFave, supra § 19.7(i)(3). Notably, however,

in Yarbrough, our supreme court stated that “[a]long with a wrongful intent, the elements of

fraud include making a false representation of a material fact, knowing or believing it to be false

and doing it for the purpose of inducing the other party to act.” Yarbrough, 128 Ill. 2d at 473.

While we would add to Yarborough that a false representation can be “ma[de]” silently as shown

above, conspicuously absent from the supreme court’s statement is any mention of a victim or

any requirement that the victim incur some tangible, pecuniary loss.

¶ 18   From these cases, we could deduce that, under the common-law understanding of fraud

and the phrase “with the intent to defraud,” it is not a condition precedent to a conviction under

section 33E-17 that the victim of the fraud suffer some proven pecuniary loss. But we need not

rest our interpretation of section 33E-17 on the common law alone, for article 17 of the Code,

which defines and proscribes other offenses based on fraud and deception, specifically defines

the phrase “with intent to defraud” as follows:

               “ ‘With intent to defraud’ means to act knowingly, and with the specific intent to

       deceive or cheat, for the purpose of [(1)] causing financial loss to another or [(2)]

       bringing some financial gain to oneself, regardless of whether any person was actually

       defrauded or deceived.” (Emphasis added.) 720 ILCS 5/17-0.5 (West 2012) (previously

       720 ILCS 5/17-1(A)(iii) (West 1998)).

Although the unlawful participation statute resides in article 33 of the Code, which addresses




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2016 IL App (2d) 160076


offenses pertaining to official misconduct and bribery, sections 33E-17 and 17-0.5 address the

same subject—fraud. And since these statutes address the same subject, under the in pari materia

canon, we read them together. See People v. Bingham, 2014 IL 115964, ¶ 42; People v. Rinehart,

2012 IL 111719, ¶ 26. Therefore, given the definition of “with intent to defraud” in article 17 of

the Criminal Code, we determine that defendant’s unlawful participation conviction under

section 33E-17 may be affirmed regardless of whether the State proved that the District suffered

any financial loss.

¶ 19    Defendant implies that this result is unfair; if the State did not prove that the District

suffered any “loss,” then there was no harm, and thus no foul. As we explained in Oshana,

however, a variety of criminal acts are so inherently or potentially harmful—conspiracy, perjury,

unlawful entry, attempt to commit a crime, and (in Oshana specifically) workers’ compensation

fraud—that they do not require that the crime is successful, or pays off, or results in any actual

harm to any identifiable victim. Oshana, 2012 IL App (2d) 101144, ¶ 39. Whether unlawful

participation fits within this category of no-loss-needed offenses is a matter for the General

Assembly, not this court. Id.

¶ 20    We also reject defendant’s argument that, just because the State did not prove that the

District suffered any pecuniary loss, it was proved that the District suffered no loss at all. The

harm in a no-financial-loss fraud case can be subtle in a sense, but its impact on fair commerce,

if undeterred, is self evident:

        “ ‘A man is none the less cheated out of his property, when he is induced to part with it

        by fraud, because he gets a quid pro quo of equal value. It may be impossible to measure

        his loss by the gross scales available to a court, but he has suffered a wrong; he has lost

        his chance to bargain with the facts before him.’ ” Haissig, 2012 IL App (2d) 110726, ¶




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2016 IL App (2d) 160076


       59 (quoting United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932) (Hand, J.)).

Put differently, when one “t[akes] advantage” of another through any scheme, “it is immaterial

that the scheme took the form of an ordinary business transaction.” People v. Keyes, 269 Ill. 173,

180 (1915).

¶ 21   But we cannot say as a practical matter that the District suffered no loss here. First, by

accepting the USA Digital contract and by committing revenue toward it, the District incurred

opportunity costs; i.e., it suffered the diminished opportunity to obtain a more financially

favorable contract. See, e.g., United States v. Castor, 558 F.2d 379, 384 (7th Cir. 1977). But

worse, the District, as a consumer, was forced on the basis of incomplete information to

subsidize defendant’s gains. If the District “and other public officials had known of [defendant’s]

interest they could have rightfully negotiated [a wide area network] contract which might have

earned those profits for the [District].” Bush, 522 F.2d at 648; see also Savaiano, 66 Ill. 2d at 14

(“[i]t appears that [the defendant’s personal] profit could have been due to his position of public

trust while negotiating for the sale”). The net result was that defendant, through his scheme,

hoodwinked the District into making a deal with USA Digital—and in so doing caused the

District to breach its own conflict-of-interest rules. “The deal may [even] have been a good one

for the [District]; the problem is that [defendant] deprived the [District] of making a better deal,

of the best deal possible, in order that he might share in the profits.” Id.; see also Haissig, 2012

IL App (2d) 110726, ¶ 59 (“ ‘Here, the State suffered a deprivation because, by [the defendant’s]

deceptive acts, it lost control over to whom its money was paid, even though the money paid was

used to purchase goods the State needed and otherwise would have purchased.’ ”) (quoting State

v. Bouchard, 2005 ME 106, ¶ 12, 881 A.2d 1130). And all of this says nothing about the

reputational damage done to the District by its employees’ betrayal of the public trust, or of the




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fact that the District’s revenues (which subsidized defendant’s commissions from USA Digital)

were derived from the property taxes the District levies on the citizens of Du Page County.

¶ 22   We determine that there was sufficient evidence for the trial court to conclude that

defendant acted with the intent to defraud the District. Defendant became a sales agent for USA

Digital in June 2008. Defendant’s failure to disclose his supplemental employment to the District

was effectively a misrepresentation that he, and by extension the District, had no undisclosed

conflicts when the District began its negotiations with USA Digital. But defendant’s “silence”

concerning his supplemental employment was not the State’s only evidence. There was also the

IDS bank account where defendant had USA Digital deposit his commissions, which allowed

defendant to split the commissions with McDonald without alerting the District or USA Digital

to McDonald’s involvement. Cf. People v. Haycraft, 3 Ill. App. 3d 974, 982 (1972) (noting that

the defendant’s “certain knowledge that large sums of money were being deposited in his ***

bank account [is] sufficient to constitute him an active wrongdoer” in a scheme to defraud).

Then, too, there was the lunch meeting where USA Digital’s vice president met with defendant

and McDonald; defendant and McDonald pretended as though they did not work together, and

defendant never let on that he worked for the District. It was not unreasonable to infer that

defendant and McDonald put on this lunchtime ruse to avoid tipping off USA Digital’s vice

president, who in turn might have notified the District. These were all “affirmative acts.”

¶ 23   It may well be that USA Digital and the District ultimately would have entered into the

exact same contract had both sides known of defendant’s conflict of interest; as the trial court

noted, that would have been a largely unobjectionable arm’s length transaction. But when the

evidence is taken together, a trier of fact could quite reasonably find that defendant’s actions

were neither isolated nor inadvertent, but rather were part and parcel of an intentionally




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fraudulent scheme undertaken for his (and McDonald’s) financial gain. See Yarbrough, 128 Ill.

2d at 473; Savaiano, 66 Ill. 2d at 19; Oshana, 2012 IL App (2d) 101144, ¶¶ 31-33.

¶ 24    That said, we agree with defendant that he should have been sentenced on only one

count of unlawful participation. Under the one-act, one-crime rule, a single sentence will be

entered for each completed crime. People v. Ramirez, 2012 IL App (1st) 093504, ¶ 46 (citing

People v. Rodriguez, 169 Ill. 2d 183, 186 (1996), and People v. King, 66 Ill. 2d 551, 566 (1977));

People v. Houston, 288 Ill. App. 3d 90, 100-02 (1997). The word “act” in the context of the one-

act, one-crime rule is a term of art. It does not mean any action, but only that which, for the

purpose of imposing a distinct sentence, constitutes a complete “ ‘unit of prosecution’ ” (People

v. Sedelsky, 2013 IL App (2d) 111042, ¶ 15 (quoting People v. Carter, 213 Ill. 2d 295, 302

(2004)), or is “capable of independently sustaining a complete criminal conviction” (People v.

Crespo, 203 Ill. 2d 335, 340 (2001)).

¶ 25   The State argues that the crime of unlawful participation was complete each time IDS

received a commission payment from USA Digital. Defendant argues that the crime was

complete once the District began to pay defendant “indirectly” through its contract with USA

Digital. As we explain, both interpretations are reasonable, and so the statute is ambiguous.

¶ 26   We start with the language of the statute. See Carter, 213 Ill. 2d at 301. Again, section

33E-17 states in relevant part, “Whoever, being an *** employee *** affiliated *** with any

unit of local government *** participates, shares in, or receiv[es] directly or indirectly any

money, profit, property, or benefit through any contract with the unit of local government ***

with the intent to defraud the unit of local government, *** is guilty of a Class 3 felony.” 720

ILCS 5/33E-17 (West 2012).

¶ 27   We agree with defendant that, insofar as the one-act, one-crime rule is concerned, section




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33E-17 is ambiguous. The principal problem with the statute in this regard is that it is unclear

what the phrase “with the intent to defraud” actually modifies, and thus what act must be

undertaken fraudulently. One does not, for example, “share[ ] in, or receive[ ]” money—whether

directly or indirectly, or through a contract—“with the intent to defraud,” because the receipt of

money in and of itself would not be “fraudulent”; the fraud lies in the act or representation that

induced the money to be paid. More importantly, the “fraud” in an official conflict-of-interest

case lies in the undisclosed conflict, because an undisclosed beneficiary to the contract was not

intended. In such situations, “[t]he evil exists because the official is able to influence the process

of forming a contract” (Savaiano, 66 Ill. 2d at 15 (emphasis added)), and that is true regardless of

how the performance of the contract is ultimately carried out.

¶ 28   The statute’s primary purpose is clear: it was intended to prevent conflicts of interest and

kickbacks. See generally 90th Ill. Gen. Assem., House Proceedings, Dec. 1, 1998, at 10-11. And,

“[l]ike most other conflict of interest provisions,” the statute “is aimed not only at the actual bad

faith abuse of power for [a public employee’s] own personal benefit, but is also designed to

prevent the creation of relationships which carry in them the potential of such abuse, by

removing the possibility of temptation.” Brown v. Kirk, 64 Ill. 2d 144, 151 (1976). And, as has

been pointed out on numerous occasions, when a government employee deceives his or her

employer, and participates in a kickback scheme, the employee has committed a quintessential

act of fraud. See Skilling v. United States, 561 U.S. 358, 413 (2010); United States v.

Blagojevich, 794 F.3d 729, 739 (7th Cir. 2015). But that sheds little light on whether the

legislature intended to punish each unlawfully-entered-into contract separately or each

unlawfully-received-payment separately.

¶ 29    We have carefully considered the statute, its legislative history, and related cases. Still,




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we can no more than guess (see People v. Gutman, 2011 IL 110338, ¶ 43) as to the unit of

prosecution under the statute. Accordingly, under lenity principles, “we must adopt a

construction that favors the defendant” (Carter, 213 Ill. 2d at 302), and, here, that construction

leads to the conclusion that the contract itself is the unit of prosecution, regardless of how many

payments the defendant indirectly received. Conversely, if, as the State has suggested, the

legislature intended to punish each receipt of proceeds from a conflicted contract separately, it

stands to reason that the legislature would have said so unambiguously. See Carter, 213 Ill. 2d at

302; People v. Segara, 126 Ill. 2d 70, 75 (1988); cf. People v. Almond, 2015 IL 113817, ¶ 39

(“the legislative intent to permit separate convictions for simultaneous possession of a firearm

and ammunition under the UUW by a felon statute could not be clearer”).

¶ 30   Our interpretation of section 33E-17 is supported by Houston, 288 Ill. App. 3d 90. There,

the defendant, whose telephone service in her own name had been disconnected for nonpayment,

obtained telephone service by twice reapplying under a different name. Id. at 92. She was

convicted of eight separate counts of telephone fraud, one count for each month that she obtained

service by reapplying under a different name. Id. The Fourth District remanded for resentencing,

noting that the defendant was guilty of, at most, two counts of telephone fraud, one for each

fraudulent misrepresentation of her name. Id. at 99-100. Accordingly, the State could not

apportion each of the defendant’s successful fraudulent misrepresentations into four criminal acts

simply “because [the phone company] chooses to bill its customers on a month-to-month basis.”

Id. at 100. So, too, the court said, “[t]he making of each call once telephone service has been

fraudulently obtained does not constitute a new offense, unless the defendant commits some

fresh fraud.” Id. at 100-01.

¶ 31   A similar result was reached by a panel of this court in People v. Patrick, 406 Ill. App. 3d




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548 (2010). There, it was held that a defendant could be sentenced on only one count of failing to

report an accident, because, although the accident had four victims, all of the convictions were

“based on the same physical act of leaving the scene of an accident.” Id. at 560.

¶ 32    The logic of Houston and Patrick applies to the unlawful participation statute with equal

force. We have determined that the unit of prosecution under section 33E-17 is the contract

itself. We note that the contract in this case had a yearly opt-out provision, and so it could be

argued that each year the contract was not terminated resulted in a new contract and thus a

separate unit of prosecution. See generally Lawrence v. Illinois Life & Health Guaranty Ass’n,

293 Ill. App. 3d 489, 491 (1997). But that was not how this case was charged, and the State

presented no evidence concerning defendant’s role, if any, in the District’s decision not exercise

its yearly option.

¶ 33    Since defendant received concurrent sentences, we need not remand this case for

resentencing. For the reasons stated, we affirm in part and vacate in part the judgment of the

circuit court of Du Page County. Twenty-eight of defendant’s convictions and sentences for

unlawful participation (counts 111-13, 115-38, 140) are hereby vacated. Defendant’s lone

remaining conviction and sentence for unlawful participation (count 110) are affirmed. In

addition, we grant the State’s request and hereby assess defendant statutory State’s Attorney fees

of $50 (55 ILCS 5/4-2002 (West 2012)) as part of our judgment.

¶ 34    Affirmed in part and vacated in part.




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