GERAGOS 8 GERAGOS A PROFESSIONAL CORPORATION LAWYERS 644 SOUTH FIGUEROA STREET Los ANGELES. CALIFORNIA 9001 7 TELEPHONE (213) 625-3900 FACSIMILE (213) 232-3255 April 4, 2019 ViaE-Mail and ?.mil Edward N. Siskel City of Chicago Department of Law 121 N. LaSalle, Room 600 Chicago, IL 60602 Re: Demand for Repayment of In vestigation Costs to ussie Smollett Dear Mr. Siskel: Our ?rm represents Jussie Smollett in this matter. Please direct all future communications to our attention. We are in receipt of your March 28. 2019 letter. sent two days after all criminal charges against Mr. Smollett were dismissed. demanding that Mr. Smollett pay to the City of Chicago $130,106.15 for ?repayment of investigation costs? within seven (7) days; otherwise. you threaten to prosecute Mr. Smollett for making a false statement to the City pursuant to Municipal Code 1-21-010 or to pursue any other legal remedy available at law. Your letter constitutes part of a course of conduct intended to harass and irreparably injure Mr. Smollett. As explained below. your letter is both factually and legally ?awed. and Mr. Smollett will not be intimidated into paying the demanded sum. As you know, Mr. Smollett vehemently denies making any false statements to the City of Chicago. or to any individuals investigating the January 29, 2019 attack on him.1 All criminal charges against Mr. Smollett from this incident have been dismissed and his record has been sealed. Thus. your claim that Mr. Smollett ?led a false police report and orchestrated his own attack is false and defamatory. Furthermore. it is apparent that your threats were made maliciously and in bad faith, and without an honest belief that a cause of action against Mr. Smollett exists, even under the lesser preponderance of evidence standard. This is evident from 1) the dismissal of all charges against Mr. Smollett and the sealing of his record; 2) the lack of I The investigation revealed that Mr. Smollett's statements to police--that on January 29, 2019, two men attacked him while yelling racial and homophobic slurs--were, in fact, true. April 4, 2019 GERAGOS ?4 GERAGOS Page 2 any investigation between the dismissal of charges on March 26, 2019 and your demand for payment on March 28, 2019; 3) the lack of any independent corroboration of the Osundairo brothers' self-serving statements (made after 47 hours of interrogation, while detained, and only after guidance by their attorneys) that the January 29, 2019 attack on Mr. Smollett was a hoax; and 4) public statements expressly contradicting the theory that the attack was a hoax. As you should know, neither the threats in your letter, nor the defamatory statements they rely upon, are afforded First Amendment protection. Moreover, your unprecedented attempt to ?le a civil lawsuit against Mr. Smollett charging him with Municipal Code 1-21-010 for ?repayment of investigation costs? is unconstitutional as applied to Mr. Smollett. The Chicago False Claims Act, 1-21-010 through 1-22-060, was enacted on January 10, 2005 and modeled after the federal CA. These statutes are routinely used to bring civil lawsuits against corporations for deceptive business practices in order to prevent fraud and protect consumers, see, City of Chicago v. Purdue Pharma L.P., 211 F. Supp. 3d 1058 (ND. 111. 2016); People ex rel. Madigan v. United Const. ofAm., Inc, 2012 IL App (lst 2012) 120308, 981 404, or as qui tam whistleblower actions. Our research discloses no cases in which the municipal ordinance has been used to try to get a second bite at the apple once charges against a criminal defendant have been dismissed. Thus, despite your repeated claims that you want to treat Mr. Smollett like any other citizen, the 16-count indictment against him followed by your threats of ?thher prosecution clearly constitute disparate treatment.1 Application of 1-21-010 under the facts of this case is unconstitutional. Finally, any future prosecution of Mr. Smollett for making allegedly false statements about the January 29, 2019 attack would violate the federal3 and state4 ban against double jeopardy. The United States Supreme Court has held that successive prosecutions for the same offense5 by a State and by a municipality within that State are 2 See, (23-year old Columbia College student who police say falsely reported a robbery and stabbing in Grant Park has not been criminally charged). 3 The doublejeopardy clause of the Fifth Amendment to the United States Constitution provides no person shall ?be subject for the same offence to be twice put in jeopardy of life or limb.? US. Const., amend. V. 4 The Illinois Constitution of 1970 provides person shall . . . be twice put in jeopardy for the same offense.? Ill. Const.1970, art. 1., 10. 5 Here, the elements of ?ling a false report under Illinois Statutes as Mr. Smollett had been charged with in the now-dismissed indictment, and making a false statement to the City in violation of Municipal Code I?21r010, are virtually the same. April 4, 2019 GERAGOS c? GERAGOS Page 3 prohibited by the double jeopardy clause. See Waller v. Florida, 397 US. 387, 392-95 (1970). Moreover, the Illinois Supreme Court has explained that there is nothing ?in Waller to suggest that a municipal ordinance designed to provide only for a ?ne was not to be comprehended in the Supreme Court's holding.? People v. Allison, 46 Ill. 2d 147, 149, 263 80, 81 (1970). Here, the State Attorney's Office moved to nolle pros the charges against Mr. Smollett who, in turn, agreed to forfeit his $10,000 bail to the City of Chicago. Thus, any subsequent prosecution of Mr. Smollett under the Illinois Municipal Code based on the events of January 29, 2019 would violate Mr. Smollett's rights under the Illinois and federal constitutions. If, despite the de?ciencies above, you ?le a civil action against Mr. Smollett, please be advised that in addition to raising the appropriate legal defenses, 1) we will demand the prompt production of the entire investigation ?le in this matter, including the ?ll] discovery from the criminal action which was never provided to the defense; 2) we will demand that you produce for deposition Mayor Rahm Emanuel, Police Superintendent Eddie Johnson, Abimbola Osundairo, Olabinjo Osundairo, and attorneys Gloria Schmidt and Jorge Rodriguez; and 3) we will seek to have all records and hearings on this matter be open to the public. In light of their apparent vested interest in this matter, we are con?dent that Mayor Emanuel and Superintendent Johnson will not object to providing their testimony under oath. Mr. Smollett's preference remains, however, that this matter be closed and that he be allowed to move on with his life. We are available to discuss this matter further. b? - 6? GERAGOS cc: Tina Glandian