United States of America v. DUMITRU CURESCU and MARIO OLIVELLA

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3698, 11-2707
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DUMITRU CURESCU and MARIO OLIVELLA,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 08 CR 398-2, 398-7—Joan Humphrey Lefkow, Judge.
ARGUED FEBRUARY 15, 2012—DECIDED MARCH 21, 2012
Before POSNER, FLAUM, and MANION, Circuit Judges.
POSNER, Circuit Judge. The defendants were tried
together for bribery of an agency that receives federal
assistance, 18 U.S.C. § 666 (paying a bribe, in Curescu’s
case, in violation of section 666(a)(2), and soliciting
or accepting a bribe, in Olivella’s case, in violation of
section 666(a)(1)(B)), and for conspiracy to commit
these offenses, in violation of 18 U.S.C. § 371, the gen-
eral federal conspiracy statute. Olivella was convicted

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2 Nos. 10-3698, 11-2707
and sentenced to 41 months in prison. The jury hung
regarding Curescu, so he was retried, and this time con-
victed, and the judge sentenced him to 6 months in
prison. We have consolidated their appeals because
although the two cases involve different conspiracies,
the conspiracies are similar and their memberships over-
lap.
Catherine Romasanta, the government’s key witness
against Curescu (she testified against Olivella as well),
worked in Chicago as an “expediter”—someone who
helps building developers and contractors obtain con-
struction permits from the City. She admitted that
between 2004 and 2007 she had bribed between 25 and
30 City employees to overlook violations of the building
and zoning codes and to speed up action on permit
applications. Apprehended in 2007, she agreed to act as
an informant, recording telephone conversations and
meetings with her clients (developers and contractors)
and City employees.
It was after she became an informant that Curescu
hired her to obtain authorization for him to add two
residential units to the basement of a building that he
owned. The zoning code forbade the addition, so he
would have needed an amendment to the code, or a
variance, to be able to add the units lawfully. Instead of
going either route he became Romasanta’s client and
agreed to pay her $12,500 for her services. She paid an
$8,000 bribe to a zoning inspector for his falsely certifying
that the building, with the additional units, was never-
theless in compliance with the zoning code. The bribe

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Nos. 10-3698, 11-2707 3
money was supplied to her by the government—she
didn’t receive her fee from Curescu until after she had
paid the bribe. But Curescu, who of course didn’t know
that Romasanta was working for the government, would
have assumed that she had advanced the bribe money,
and that the $10,000 fee that he paid her upon receipt of
the certification (he had paid her $2,500 earlier) reim-
bursed her for the advance.
Curescu had now to construct the units. To add
the plumbing that was necessary to make them hab-
itable he hired an unlicensed plumber, a code violation.
A plumbing inspector discovered the violation and
told Curescu to redo the plumbing. Curescu paid an ac-
quaintance, Beny Garneata, a licensed plumber, $7,000,
and Garneata in turn paid defendant Olivella, another
plumbing inspector, a portion of that amount to certify
falsely that a licensed plumber had done the plumbing.
Curescu was charged both with the zoning bribe and
the plumbing bribe, but was acquitted of the latter
charge, probably because of the possibility, remote as
it seems, that Garneata, the actual payor of the bribe,
was doing an unsolicited “favor” for Curescu, or, more
plausibly, that Curescu thought he was paying Garneata
to redo the plumbing but Garneata decided to bribe an
official instead; for we’ll see that Garneata may have
pocketed $6,000 of the $7,000 without doing any
plumbing work, paying inspector Olivella only $1,000
to approve the existing plumbing. Convicted of accepting
the plumbing bribe, Olivella was not involved in the
zoning bribe.

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4 Nos. 10-3698, 11-2707
The defendants challenge a variety of the district
judge’s procedural and evidentiary rulings. We begin
with Curescu’s challenges.
Remember that Romasanta testified that she’d paid
a bribe of $8,000 to enable Curescu to add the two resi-
dential units to his building. The judge allowed her
also to testify that before she had become an informant
she had paid another $8,000 bribe to enable Curescu to
add two residential units to another property that he
owned, hence $4,000 a unit, just like the bribe for
which he was prosecuted. That evidence was admissible
under Rule 404(b) of the federal evidence rules because
it strengthened the inference that Curescu had known
that the money he had paid her for her services as an
expediter the second time, when he wanted to add the
same number of residential units to a different property,
included money for bribing a zoning inspector. But
during the trial it became apparent that the first $8,000
bribe had been to enable Curescu to add four units
rather than two to that first building. Curescu’s lawyer
argued to the jury that this showed that Romasanta was
a liar and the rest of her testimony should be disbe-
lieved—and, what is more important (for most of her
testimony was based on recorded conversations; nor
is there any doubt that she in fact bribed zoning and
plumbing inspectors with abandon), showed that the
“four grand per unit” that Curescu said in one of the
recorded conversations that he had paid Romasanta
was for obtaining by lawful means the City’s authoriza-
tion to add the four units, rather than being bribe

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Nos. 10-3698, 11-2707 5
money. For he had paid her, according to the government,
a total of only $14,500. At “four grand per unit” in bribes
alone, he would have had to pay her $16,000 and that
would have left nothing to compensate her for her time,
not to mention for her risking criminal punishment—yet
we know from their subsequent transaction that she
intended her fee to include compensation for herself, on
top of the amount paid in bribes.
Curescu argues that he’s entitled to a new trial
because the government knew that Romasanta’s testi-
mony that she had paid bribes of $4,000 per unit in
their first transaction was false. Prosecutors may
not use evidence that they know or should know is false
to obtain a conviction, Napue v. Illinois, 360 U.S. 264,
269 (1954); United States v. Freeman, 650 F.3d 673, 678
(7th Cir. 2011), and if they do so and there is a rea-
sonable likelihood that the evidence influenced the
jury, the defendant is entitled to a new trial. Id. at 679.
When confronted with the evidence that four units
had been involved in the earlier transaction rather
than two, Romasanta testified that her recollection was
that only two had been involved. This was not neces-
sarily inconsistent with four units’ having been
involved, because recollections are often mistaken, and
Romasanta was a very busy briber. But there’s no
doubt that the bribe indeed involved four rather than
two units, and so her testimony was false; whether it
was also perjurious is irrelevant. Id. at 680-81.
Not only was her mistake (maybe it was a lie) exposed
at trial, but given that exposure the error became ammuni-

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6 Nos. 10-3698, 11-2707
tion for the closing argument of the defense, as sketched
above, and thus may well have helped Curescu rather
than hurt him. Even if the government knew of the
error before Romasanta testified, yet let her testify,
hoping the error would not be caught, an error that
doesn’t reduce the defendant’s likelihood of being ac-
quitted can’t be a ground for reversal, because judges
are not to use reversal to punish governmental miscon-
duct. United States v. Hasting, 461 U.S. 499, 506-07 (1983);
United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995);
United States v. Derrick, 163 F.3d 799, 806-07 (4th Cir.
1998); see also Bank of Nova Scotia v. United States, 487
U.S. 250, 254-56 (1988).
And the fact that Romasanta’s fee to Curescu was
only $3,625 a unit for approval of four units ($14,500 ÷ 4)
but $6,250 per unit for the approval of two ($12,500 ÷ 2)
did not weaken the government’s case, though her er-
roneous testimony did. She may have done much less
work to get the first approval, while the risk the
building inspector had taken in giving that approval
(which would have affected the bribe he would de-
mand) may have been no greater for four units than
for two. And so the fact that the bribe per unit was
lower the first time would not undermine the inference
that Curescu had knowingly been paying bribe money
(indirectly through his “expediter”) rather than buying
a lawful expediting service.
Curescu also complains about the judge’s allowing
Romasanta to testify about her understanding of state-
ments that he made to her in the recorded conversations.

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Nos. 10-3698, 11-2707 7
For example, she testified that when he said “five and
five and two,” he meant that “he wanted to pay [a maxi-
mum of] $5000 per illegal dwelling unit as a bribe,” the
“two” referring to additional expense she would have
to incur to obtain permission for him to add the two
units, though in the end she asked for and received
$2,500 for that expense. (The question what her com-
pensation would be seems to have been left open. In
the end, because she was working for the government,
she made no effort to obtain a fee.) Another example is
her testimony that when Curescu said “I’ll go to
what’s necessary, but, you know, I don’t need to be
strangled,” she understood him to mean that “he would
pay the bribe payment, but he didn’t want it to be ex-
tremely high.”
Curescu argues that it is improper for a witness
to testify to what another person is thinking. That’s
incorrect. United States v. Locke, 643 F.3d 235, 240 (7th
Cir. 2011); United States v. Wantuch, 525 F.3d 505, 513
(7th Cir. 2008); Asplundh Mfg. Division v. Benton Harbor
Engineering, 57 F.3d 1190, 1197-98 (3d Cir. 1995); United
States v. Rea, 958 F.2d 1206, 1214-15 (2d Cir. 1992).
Rule 701(a) of the federal evidence rules allows a lay
witness to offer an opinion that is “rationally based on
the witness’s perception,” and though one can’t actually
read another person’s mind, one is often able to infer,
from what the person says or from the expression on
his face or other body language, what he is thinking.
Anyway Romasanta was testifying not to what Curescu
actually meant but to what she understood him to

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8 Nos. 10-3698, 11-2707
mean, which was probative of what he meant but was
based entirely on her mental processes rather than
his. Such testimony is unexceptionable, United States v.
Wantuch, supra, 525 F.3d at 515; United States v. Estrada,
39 F.3d 772, 772-73 (7th Cir. 1994) (per curiam), even
though it implies an opinion about what the speaker
was thinking, since such lay opinion testimony is itself,
as we said, permissible. United States v. Garcia, 291 F.3d
127, 140-41 (2d Cir. 2002).
The testimony about what Romasanta understood
Curescu to be referring to was important. Just as dealers
in illegal drugs do not name the drugs in their phone
conversations but instead use code words, so parties to
other illegal transactions often avoid incriminating
terms, knowing they may be overheard electronically. So
if they’re involved in bribery, they don’t use the words
“bribery,” “bribe,” or “bribes,” United States v. Maloney,
71 F.3d 645, 662 (7th Cir. 1995); United States v. Murphy,
768 F.2d 1518, 1535 (7th Cir. 1985); United States v. Page,
808 F.2d 723, 726 (10th Cir. 1987); United States v.
Tamura, 694 F.2d 591, 597 (9th Cir. 1982), but instead
use words that the other party to the conversation under-
stands to refer to bribes—without that understanding
there would be a failure of communication.
Anyone who’s overheard conversations on the street
or in a restaurant knows that conversations between
strangers are often unintelligible. There is the public
language we employ when talking to strangers and the
elliptical private language that we use when talking to
people whom we know. Strangers need an interpreter,

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Nos. 10-3698, 11-2707 9
and a party to the conversation is the obvious choice to
be that interpreter. There is no difference between using
a private language for the sake of brevity and using it
to conceal meaning from strangers—or the authorities.
Curescu might as well be arguing that a translator
can’t testify to the meaning of a statement in a foreign
language.
Notice also how damaging Curescu’s seemingly in-
nocuous statement that “I’ll go to what’s necessary,
but, you know, I don’t need to be strangled” would have
been to his defense even if left untranslated. Were
he negotiating with Romasanta just over her fee, he
would be unlikely to say “I’ll go to what’s necessary”;
“what’s necessary” must refer to some necessity
imposed on Romasanta by a third party—namely the
insistence by the City employee who could alter
records that he be paid to do so.
What Curescu didn’t say in any of the recorded con-
versations illustrates that silence like obliquity can
be eloquent. He never asked Romasanta what an “expe-
diter” does or what services he was receiving for
fees totaling $27,000 that he agreed to pay her with
respect to the two properties about which she testified.
Curescu’s other objections to the district judge’s
rulings, such as the judge’s refusal to admit evidence
that the workmanship used in building the illegal re-
sidential units was good (an irrelevance), or the
judge’s refusal to allow extrinsic evidence to bolster
impeachment of Romasanta’s testimony by reference to
her having testified in a trial of another developer that

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10 Nos. 10-3698, 11-2707
she had passed three bribes when actually she had
passed only two (a refusal that was a permissible
judgment call by the judge), do not merit discussion.
So we turn to Olivella’s appeal. Remember that
Curescu didn’t want to rip out the plumbing that
had been installed unlawfully in the new basement
apartments (unlawfully because an unlicensed plumber
had installed it) and thus have to bear the expense
of removing the old plumbing and replacing it, doubtless
at greater cost if he used a licensed plumber, as the
law required. He turned for help, as we mentioned, to
a licensed plumber, Garneata; and in a conversation
between Garneata and Olivella (a plumbing inspector,
remember), recorded pursuant to a court order, Olivella
told Garneata that the plumbing had to be removed
and Garneata replied “I really need to help this guy
because it’s one of my workers’ brothers.” (Actually a
brother-in-law.) Olivella suggested that rather than dis-
cuss the matter on the phone they get together to discuss
it. In a subsequent call Garneata told Olivella “I take
care of you royally, man. I take care of you royally”—and
that night Olivella was a guest in Garneata’s skybox to
watch a Chicago Bulls game. Later Garneata instructed
an associate of his to tell Curescu “that it will cost him
$7,000, that’s how much he [presumably Olivella] wants.”
The next day Curescu gave $7,000 in cash to Garneata
at a Starbucks. Garneata called Olivella and told him
he was on his way to his office. Olivella was videotaped
entering Garneata’s office building shortly afterward.
Olivella then certified falsely that the plumbing had

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Nos. 10-3698, 11-2707 11
been installed by a licensed plumber and that there
were no building-code violations (there were, on top of
Curescu’s failure to have used a licensed plumber).
The evidence of Olivella’s guilt in the plumbing con-
spiracy was stronger than the evidence of Curescu’s
guilt in the zoning conspiracy, because in the zoning
conspiracy Curescu had paid an “expediter” and argued
that he didn’t know that part (in fact most) of the money
he paid would go to bribe City employees. But in the
plumbing conspiracy Garneata, as a favor to Curescu,
paid Olivella for what can only have been Olivella’s
allowing the illegal plumbing in the added residential
units to remain.
Although the evidence was adequate to convict
Olivella of guilt beyond a reasonable doubt, we don’t
agree with the statement in the government’s brief
that “the jury’s verdict must stand unless Olivella can
show that the jury’s ‘take on the evidence was wholly
irrational,’ ” quoting United States v. Hoogenboom, 209
F.3d 665, 669 (7th Cir. 2000), and adding that showing
that a jury verdict was “wholly irrational” is a “nearly
insurmountable hurdle.” We can’t criticize lawyers for
quoting from opinions of this court that have not been
overruled, but to say that a jury verdict can be set aside
only if “wholly irrational” (which would indeed be a
“nearly insurmountable” proposition to establish) is
the kind of hyperbole that sometimes creeps into
opinions (and not just Hoogenboom—see, e.g., United States
v. Teague, 956 F.2d 1427, 1433 (7th Cir. 1992)), and it
should not be considered legal doctrine. A jury verdict

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12 Nos. 10-3698, 11-2707
of guilt can be set aside—must be set aside—if, even
though the verdict is not “wholly irrational,” the evi-
dence would not have justified a reasonable juror in
finding guilt beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 317-19 (1979); United States v.
Mojica, 185 F.3d 780, 789 (7th Cir. 1999); United States
v. Rahman, 34 F.3d 1331, 1337 (7th Cir. 1994); United States
v. DeCorte, 851 F.2d 948, 952 and n. 2 (7th Cir. 1988);
United States v. Brown, 776 F.2d 397, 402 (2d Cir. 1985)
(Friendly, J.). This is a heavy burden, but it is not
“nearly insurmountable.” That would imply that we
rubber stamp guilty verdicts.
The emphasis in the government’s brief on the suffi-
ciency of the evidence is unnecessary, because Olivella
doesn’t challenge its sufficiency as such; rather his argu-
ment is that “once th[e] improper propensity evidence
is set aside, there simply is not enough evidence from
which a jury could have found [Olivella] guilty beyond
a reasonable doubt.” So let’s consider what he calls
“propensity evidence.” The reference is to evidence of
prior bribes that Olivella received. But his brief also
attacks the district court’s refusal to sever his trial from
that of Curescu and to allow him to impeach some of
Garneata’s recorded statements with extrinsic evidence.
To be guilty of soliciting or accepting a bribe in
violation of section 666(a)(1)(B) requires knowing
that the money or other thing of value received was
indeed a bribe, which is to say an inducement to do
a corrupt act. Salinas v. United States, 522 U.S. 52, 57
(1997); United States v. Robinson, 663 F.3d 265, 271

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Nos. 10-3698, 11-2707 13
(7th Cir. 2011); United States v. Ford, 435 F.3d 204, 212-14
(2d Cir. 2006). The evidence that Olivella had received
three previous cash bribes (plus a $250 gift certif-
icate, a noncash bribe), averaging more than $5,000,
for overlooking code violations discovered in plumbing
inspections tended to rebut an inference that Olivella
had thought the money Garneata paid him was a gift
rather than a bribe. The use of evidence of prior crimes
to show “absence of mistake” is an express exception to
the prohibition of prior-crimes evidence. Fed. R. Evid.
404(b)(2).
Olivella challenges the judge’s refusal to sever
his trial from Curescu’s; remember that they were tried
together initially, and Olivella was convicted but
the jury couldn’t agree about Curescu, and so he was
retried and this time convicted. Although the zoning
and plumbing conspiracies were different, Curescu was
at the heart of both, for both were conspiracies to
obtain unlawful benefits for his building. Joinder was
therefore proper. Fed. R. Crim. P. 8(b). Olivella’s argu-
ment for severance is that “after hearing extensive evi-
dence of the zoning conspiracy . . . the jury must have
been left with the impression that City Hall and all
the inspectors working there were entirely corrupt and
deserving of punishment.” That is implausible; by the
same token one might think that the evidence of the
plumbing conspiracy would poison the jury against
Curescu, but apparently it didn’t because when he
was tried together with Olivella the jury hung; only
when he was retried by himself was he convicted.

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14 Nos. 10-3698, 11-2707
Olivella argues finally that his lawyer should have
been allowed, by cross-examination of either a postal
inspector or an FBI agent, to elicit a statement made by
Garneata to those officers after his arrest that “not every-
thing in the recordings were [sic] true,” the reference
being of course to the recordings the government had
made of his phone conversations. We quoted the
recorded conversation between Garneata and an
associate of his that provided the single most damaging
piece of evidence against Olivella (“it will cost him
$7,000, that’s how much he wants”). Olivella argues
that Garneata’s statement that “not everything in the
recordings were true” was a comment on that phone
conversation. He bases this surmise on Garneata’s ad-
mission (also excluded from the trial) that his statement
in the same conversation that the $7,000 was intended
for Olivella (probably to be split by Olivella with his
boss) was false—he meant to keep most of it for himself,
and in fact gave Olivella only $1,000. Yet at trial Olivella’s
lawyer said he didn’t want to get into the evidence of
Garneata’s admission that he had ripped off Curescu,
who “bought” a certification for $7,000 that had actually
cost only $1,000.
Garneata’s admission does not exonerate Olivella.
The crime of which Olivella was accused and convicted
was soliciting “anything of value . . . intending to be
influenced . . . in connection with any business, transac-
tion, or series of transactions . . . involving any thing of
value of $5,000 or more.” The fact that Curescu was
willing to pay $7,000, whether to redo the plumbing or to
avoid having to redo it, indicates that even if Olivella

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Nos. 10-3698, 11-2707 15
solicited merely a $1,000 bribe, that bribe was intended
to influence a transaction (redoing the plumbing—
a transaction the bribe was intended to prevent) that
involved value of at least $5,000. Garneata’s admission
that he paid Olivella “only” $1,000 was actually further
evidence of Olivella’s guilt.
The government had made some 3,000 recordings
of Garneata’s phone conversations. Obviously not every-
thing he said in them was true; in fact much must
have been false, since many of the conversations con-
cerned his criminal activities, about which he would
have been devious at best. We can’t see what
proper use Olivella could have made of the statement,
amounting to a truism, that “not everything in the re-
cordings were true,” in the absence of evidence—and
there is none—that Garneata had been referring to the
recorded conversation (“it will cost him $7,000, that’s
how much he wants”) that was so helpful to the pros-
ecution.
AFFIRMED.
3-21-12

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