author: WOOD, Chief Judge.

text:
    Robert L. TATUM, Petitioner-Appellant, v. Brian FOSTER, Respondent-Appellee.
    No. 14-3343
    United States Court of Appeals, Seventh Circuit.
    Argued September 8, 2016
    Decided January 31, 2017
    Rehearing Denied March 1, 2017

      Keri A. Ambrosio, Attorney, Law Offices of Keri A. Ambrosio, P.C., Chicago, IL, for Petitioner-Appellant.
    Daniel J. O’Brien,' Assistant Attorney General, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.
    Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.
   WOOD, Chief Judge.

Although the Sixth Amendment to the U.S. Constitution gives every criminal defendant the right “to have the Assistance of Counsel for his defence,” the Supreme Court has recognized for more than 40 years that this does not mean that counsel can be shoved down an unwilling defendant’s throat. At least since the Court decided Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the constitutional language has been understood as a personal right to decide how to defend oneself. “[T]he right to self-representation,” Faretta pror claimed, “is thus necessarily implied by the structure of the Amendment.” 422 U.S. at 819, 95 S.Ct. 2525. This is true despite the fact that it is generally foolish for a person defending serious criminal charges to proceed without counsel. Trial judges are entitled — indeed encouraged — to warn defendants of the risks that attend self-representation. In the end, however, Far-etta requires them to honor the defendant’s wishes, assuming that the defendant is generally competent.

The present case raises the question whether the Wisconsin courts unreasonably applied Faretta when they refused to allow Robert Tatum to represent himself. The state trial court took this step after questioning Tatum not about his general competence, but about his educational level and understanding of the legal system. Tatum’s conviction was upheld in the state court system, and the district court denied his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. We reverse. Try as we might, we cannot reconcile the test the Wisconsin state courts used in assessing Tatum’s right to self-representation with the Supreme Court’s holding in Faretta.

I

Tatum faced the most serious charges possible: two counts of first-degree intentional homicide by use of a dangerous weapon, stemming from the shooting deaths of two of his roommates, Kyle Ip-politi and Ruhim Abdella. The details of the crimes can be found in the decision of the Wisconsin Court of Appeals, State v. Tatum, 2013 WL 322647, 346 Wis.2d 279, No. 2011AP2439-CR (Wis. Ct. App. Jan. 29, 2013), whose findings of fact are presumed to be correct, 28 U.S.C. § 2254(e)(1). For present purposes, however, the critical facts relate to the course of proceedings at trial.

After his arrest for the crimes, Tatum was arraigned. On July 20, 2010, represented by his first attorney, he demanded a speedy trial, and the case was set for a jury trial on November 29, 2010. On August 12, at Tatum’s request, counsel moved to withdraw. The court granted the motion and vacated the speedy trial demand because Tatum wanted a new lawyer. His wish for a new attorney was granted. On September 23, the second lawyer filed a motion to suppress evidence based on the fact that Tatum’s car had been searched, and evidence seized, without a warrant. Before the court was able to rule on the motion, Lawyer 2 moved to withdraw, on the ground that Tatum had shared confidential information with Tatum’s mother, a material witness, and had thereby compromised the lawyer’s position. Again the trial court granted the motion; the trial date remained November 29, 2010.

The court next appointed a third lawyer, Dianne Erickson, for Tatum. Erickson informed the court that she could not be prepared for a November 29 trial, and so the court reset the date for January 31, 2011. On January 18, Erickson requested a competence evaluation for Tatum. The next day the court held a hearing, at which it ordered that Tatum be evaluated by the Department of Health Services. Evidently this was done quickly; the parties returned to court on January 24 for the return of the evaluation. The report was inconclusive, because the examining psychologist was unable to form an opinion about Tatum’s competence. The court then sent Tatum to a state mental-health facility for an inpatient evaluation. Tatum protested mildly, saying that he would “rather just represent myself if [Erickson] finds that my competency is not up to her standards.” The court responded with a “we’ll see.”

On February 24, inpatient evaluation in hand, the parties returned to court. Dr. Laurence Trueman, the examining professional, found that Tatum was competent enough to understand the proceedings and assist in his defense, but that Tatum was likely to be “an extremely challenging defendant.” The state court described what happened next:

At the same hearing, Tatum asked the trial court to dismiss Attorney Erickson, stating that she was working with the State and not investigating his case in accordance with his standards, forcing him (Tatum) to investigate his case on his own. Tatum also acknowledged that he refused to meet with Attorney Erickson out of frustration with counsel’s competence challenge. The trial court asked Tatum whether he was requesting a new attorney or asking the trial court to allow him to represent himself. Tatum stated that he wished to represent himself. The trial court found Tatum competent to stand trial; however, after engaging in a colloquy with Tatum, denied his request to represent himself. The trial court stated that Tatum’s limited education would make it difficult for him to understand the difficulties and disadvantages of self-representation. The trial court also refused to dismiss Attorney Erickson. The trial was then calendared for a jury trial on April 4, 2011.

We need to look in greater detail at the colloquy to which the state court referred. The critical part occurred at the conclusion of the February 24 hearing. Initially, the court said “Okay. I think he’s competent. I’ve got a report that says he is. I’m satisfied based on my colloquy that he is knowingly, voluntarily and intelligently giving up his right to a hearing....” But the court made it clear that this was a finding that Tatum was competent to stand trial. It then went on to discuss Tatum’s request to dismiss counsel:

The Court: ... Mr. Tatum, do you want a new lawyer or do you want to represent yourself?
Tatum: I want to represent myself, Your Honor.

After further discussion, during which the judge expressed the concern that there was a total breakdown in communication between Tatum and Erickson, he returned to the topic of self-representation:

The Court: I understand he wants to represent himself. What’s your educational background, sir?
Tatum: I’m self-educated. I went to public school up until the tenth grade after which time I attended home school and—
The Court: Have you got a GED or HSED?
Tatum: I would say I have the equivalent of an HSED.
The Court: Do you have one?
Tatum: No, sir.
The'Court: A formal one?
Tatum: No, sir. I can easily obtain it. That hasn’t been my main goal. My main goal when it comes down to getting paper to prove it, I mean that’s less of a goal for me at least at this point in my life, but I’ve been studying as far as the statutes, Wisconsin statute, studying representation for court proceedings. I have a good working knowledge of how court proceeding work.
The Court: Tell me about that. How does a trial work, sir?
Tatum: I mean, basically like I say, there’s opening statements. You mean as far as proceedings before trial?
The Court: During trial.
Tatum: At the trial beginning?
The Court: Yeah.
Tatum: Basically opening statements.
The Court: What happens right before opening statements?
Tatum: I guess both parties states their appearance and things like that.
The Court: How do we get a jury?
Tatum: You do voir dire.
The Court: How does that work?
Tatum: You question — you question jurors, potential jurors—
The Court: About what?
Tatum: About various things.
The Court: What are we looking for in jurors?
Tatum: Fair people who are giving a fair determination as far as hearing evidence, not making biased decisions, make decisions based on the evidence that’s presented, not their own personal beliefs as far as, you know, bias and things like that.
You have a certain amount of strikes, preemptory and strikes for cause. You got strikes for cause and if I had — I wasn’t incarcerated at the facility where I had proper legal access I would be more prepared, I could prepare adequately. If I wasn’t harassed in the jail I could prepare a lot better that way.

The judge asked Tatum how he would go about representing himself.

The Court: What kind of difficulties would you imagine that you would have in self-representation?
Tatum: You mean like my present circumstances?
The Court: In your present circumstances.
Tatum: Mainly the impairment, based on the jail circumstances as far as them not providing me with reasonable access to the courts and legal materials.

Tatum and the judge then discussed how Tatum would go about investigating the case. Tatum said he would continue doing “what I’ve been doing all along,” by making phone calls and gathering evidence. The colloquy then continued:

The Court: What are you charged with, sir?
Tatum: Two counts of first-degree intentional homicide.
The Court: What’s the penalty — and two counts of what?
Tatum: Use of a dangerous weapon.
The Court: What’s the penalty?
Tatum: Class A felonies carry the maximum of life in prison.

Finally, the court summarized the holding of State v. Klessig, 211 Wis.2d 194, 564 N.W.2d 716 (1997), and concluded:

The Court: ... He’s made the choice, there’s no question about it. He’s aware of the seriousness of the charges. He’s aware of the general range of penalties but he is not aware of the difficulties and disadvantages of self-representation especially given his circumstances, • and given the fact that he’s only got a tenth-grade education therefore I deny his right to represent himself.

Tatum protested this decision and continued to press his objection to Erickson. The court overruled him, ordered Erickson to serve as trial counsel, and proceeded to the trial. The jury found him guilty of both counts of first-degree homicide and he was sentenced to life in prison without the possibility of release.

In state post-conviction proceedings (which in Wisconsin can occur simultaneously with a direct appeal, see Wis. Stat. § 974.06; Socha v. Pollard, 621 F.3d 667, 668 (7th Cir. 2010)), Tatum once again filed a motion to represent himself on appeal. The appellate court permitted him to do so. On direct appeal, he raised three grounds for relief, including that he had been denied his constitutional right to self-representation. The appellate court affirmed the trial court on all grounds. With respect to the self-representation claim, it ruled that Wisconsin law requires the use of a higher standard for self-representation than it does for competence to stand trial. The Wisconsin Supreme Court denied review.

Tatum then turned to the federal court and filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He included his Faretta claim as one of four grounds for relief, and the state conceded that he had exhausted and fairly presented this point. The district court rejected his argument on the merits, however, finding that the Wisconsin courts’ approach to the right to self-representation did not violate law clearly established by the Supreme Court of the United States. This court granted Tatum’s request for a certificate of appeal-ability, limited to the self-representation issue.

II

Our consideration of this case is governed by the standards of the Antiter-rorism and Effective Death Penalty Act (AEDPA), under which a federal court may issue the writ of habeas corpus only if the state court’s decision is “contrary to, or involves an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or if it “was based on an unreasonable determination of the facts in light of the evidence,” id. § 2254(d)(2). A decision is “contrary to” established precedent “if it applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result”’ Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). A state court’s decision “involves an unreasonable application of [the Supreme Court’s] clearly established precedents if the state court applies [the Supreme Court’s] precedents to the facts in an objectively unreasonable manner.” Id. This creates a high bar. The state court decision cannot be merely wrong; it must be so unreasonable that there is no possibility that “fairminded jurists could disagree on the correctness” (or lack thereof) of the decision. Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (internal quotations omitted). We turn to Tatum’s arguments with this demanding standard in mind.

Faretta established the basic principle that is at issue in this case. Acknowledging that the question was not an easy one, the Supreme Court held in 1975 that a state may not constitutionally “hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense.” 422 U.S. at 807, 95 S.Ct. 2525. The Court also addressed the question before us: what does it take for a waiver of' counsel to be effective? This is what it hadto say:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.

Id. at 835, 95 S.Ct. 2525 (internal citations and quotation marks omitted). It went on to hold that Faretta had “clearly and unequivocally declared ... that he wanted to represent himself and did not want counsel.” Id. Moreover, “[t]he record affirmatively show[ed] that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” Id. The Court found no need to assess “how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire,” because “his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.” Id. at 836, 95 S.Ct. 2525 (emphasis added).

The Court returned to the problem of self-representation in Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). The question there was “whether the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial.” 509 U.S. at 391, 113 S.Ct. 2680. The Court answered with a flat “no.” Its opinion shows that the critical question relates to the defendant’s mental functioning, not to any particular knowledge he may have:

Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights. Respondent suggests that a higher competency standard is necessary because a defendant who represents himself must have greater powers of comprehension, judgment, and reason than would be necessary to stand trial with the aid of an attorney.... But this argument has a flawed premise; the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.

Id. at 399, 113 S.Ct. 2680 (internal quotation marks and citations omitted). The Court wrapped up its opinion by reaffirming that the trial court must always satisfy itself that the waiver is knowing and voluntary. Only in this sense, it said, was more needed to waive the right to counsel than is necessary for a finding of basic competence to stand trial. See Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966).

In Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), the Court reiterated that the critical point that must be established is that the waiver of the right to counsel is the product of a “knowing, intelligent act done with sufficient awareness of the relevant circumstances.” Id. at 80,124 S.Ct. 1379 (internal quotation marks and alterations omitted). But Tovar holds that the Sixth Amendment does not compel a trial court specifically to warn a defendant about the substantive consequences of his waiver, including the risk that a potential defense might be overlooked and the loss of the chance to obtain an attorney’s independent opinion on the wisdom of a guilty plea. Id. at 81,124 S.Ct. 1379.

The state courts thought that Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), introduced the possibility of taking into account the defendant’s legal knowledge, but that is not what the case holds. In Edwards, the Court faced the problem of “a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself.” Id. at 167, 128 S.Ct. 2379. In that situation, it held, the state may insist that the defendant proceed to trial with counsel.

Mental competence, or mental functioning (as Faretta called it), the Court said, presents a distinct problem for self-representation. It acknowledged that Godinez had rejected the idea of a two-tier standard for competence in the circumstances presented there. “To put the matter more specifically, the Godinez defendant sought only to change his pleas to guilty, he did not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue.” Id. at 173, 128 S.Ct. 2379. In addition, Godinez “involved a State that sought to permit a gray-area defendant to represent himself’ — a decision the Court held was permissible. Id.

With respect'to the case before it, the Court began by “assuming] that a criminal defendant has sufficient mental competence to stand trial ... and that the defendant insists on representing himself during that trial. We ask whether the Constitution permits a State to limit that defendant’s self-representation right by insisting upon representation by counsel at trial — on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.” Id. at 174, 128 S.Ct. 2379. It answered that question affirmatively, stressing throughout its explanation that it was focusing on mental competence. Some people, states may conclude, are competent enough to stand trial with the assistance of counsel, but lack sufficient competence to conduct their own defense. One example the Court gave of such a person was someone suffering from mental derangement serious enough to deprive the person of a fair trial if he were to conduct his own defense. Id. at 175, 128 S.Ct. 2379. It concluded with this statement: “[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky [v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) ] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 178, 128 S.Ct. 2379.

Throughout the opinion, the emphasis is on competence, not on particular skill. The Court declined to accept Indiana’s invitation to adopt a more specific standard under which a defendant would not have the right to self-representation if he could-not communicate coherently with the court or a jury. Id. It also rejected Indiana’s request to overrule Faretta. Id.

Rather than focusing on this line of U.S. Supreme Court decisions, the Wisconsin courts in Tatum’s case relied on the state supreme court’s decision in State v. Kles-sig, supra at 463-64, for guidance. Klessig announced that “[j]ust as the right to the assistance of counsel is identical under the Wisconsin and United States Constitutions, the right to represent oneself also does not differ.” 564 N.W.2d at 720. As a matter of state-court administration, it established a mandatory colloquy for cases in which the defendant wants to waive counsel:

To prove such a valid waiver of counsel, the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him, and (4) was aware of the general range of penalties that could have been imposed on him.... If the circuit court fails to conduct such a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver of counsel.

Id. at 721-22 (internal citation omitted). It then discussed the standards for competence to stand trial and, citing Godinez, distinguished this from competence to represent oneself. Id. at 722-23.

Although we have some question about the fourth item on the Klessig list, which seems to address detailed knowledge rather than competence, the greater problem is that the state court, applying Klessig, strayed from the “mental functioning” sense of competence over to educational achievement and familiarity with the criminal justice system. As the Wisconsin Supreme Court put it, “[i]n making a determination on a defendant’s competency to represent himself, the circuit court should consider factors such as the defendant’s education, literacy, fluency in English, and any physical or psychological disability which may significantly affect his ability to communicate a possible defense to the jury.” Id. at 724 (internal quotation marks omitted). It is a short step from those factors to the state trial judge’s concern about the level of education Tatum had achieved (tenth grade) and his apparent lack of awareness of the difficulties of self-representation.

This is the third time in recent months that we have had to consider a habeas corpus petition based on Faretta and the application of Wisconsin’s Klessig decision. Although this court’s decisions are not authoritative for purposes of AEDPA, they can present useful examples. In that spirit, we find the decision in Imani v. Pollard, 826 F.3d 939 (7th Cir. 2016), helpful, as Imani also involved the compatibility of Wisconsin’s Klessig approach with the decisions of the U.S. Supreme Court. In Im-ani, the petitioner tried to exercise his right to self-representation in a Wisconsin trial court, but the judge prevented him from doing so. The judge dismissed as irrelevant and unconvincing Imani’s statement that he had been working on the case for 13 months. Instead, after learning that Imani had a tenth-grade education, that he read at a college level, and that he had appeared in at least five prior criminal cases, the judge announced that Imani did not have a “sufficiently rational basis” to justify self-representation. Id. at 942. The Wisconsin Supreme Court found that the trial court’s determination that Imani was not competent to proceed pro se was supported by the record, despite the absence of any evidence of mental illness or disability.

We reversed, finding that the state supreme court’s decision “was flatly contrary to Faretta and its progeny in three distinct ways.” Id. at 943. The first two dealt with burdens of proof, but the third is directly relevant here: “the state court imposed a competence standard much more demanding than Faretta and its progeny allow, as if the issue were whether Imani was an experienced criminal defense lawyer.” Id. at 944. We continued with the observation that “Imani’s education and communication abilities are materially indistinguishable from those in Faretta, and the Wisconsin courts identified no mental illness or impairment that might have rendered Imani incompetent as allowed by Indiana v. Edwards ....” Id.

The same problem arose in Tatum’s case. Nothing in the colloquy, most of which we have reproduced above, suggests that Tatum suffered from deficient mental functioning, as opposed to a limited education. In fact, he displayed relatively good knowledge of the criminal process: he gave a reasonable description of voir dire (which he correctly called by name), strikes for cause and peremptory strikes, opening statements, the nature of the charges against him, and the general range of penalties he faced. Faretta requires no more. The court’s failure to recognize this was compounded when it inappropriately placed the burden on Tatum to convince it that he understood, and accepted, the challenges of self-representation. This, too, was inconsistent with Faretta, which places the duty on the trial court to warn the defendant about what he is getting into, and then leave the defendant free to decide how he wants to proceed. Faretta, 422 U.S. at 834, 95 S.Ct. 2525 (the right to defend is personal, and so “[i]t is the defendant ... who must be free personally to decide whether in his particular case counsel is to his advantage”); see also Ima-ni, 826 F.3d at 944.

Jordan v. Hepp, 831 F.3d 837 (7th Cir. 2016), which raised a similar self-representation argument, provides a useful contrast to this case. The defendant, Jordan, was charged with reckless homicide and related charges that stemmed from a shooting death. Id ', at 841. The Wisconsin court denied Jordan’s request to represent himself because Jordan was nearly illiterate and had limited education. The court believed Jordan’s education would prevent him from making a meaningful defense because he would be unable to use written documents including police reports and a signed confession. Id. at 842.

In denying Jordan’s petition for a writ of habeas corpus, we recognized that the Supreme Court has not precluded state courts altogether from inquiring about a defendant’s ability to represent himself. Id. at 844 (citing Godinez and Edwards). We observed that “the Wisconsin court came close to making an unreasonable application of the Faretta line of cases,” but we concluded that the state court’s decision did not stray so far from Supreme Court precedent to warrant issuance of the writ. Id. at 843, 845.

It was possible in Jordan to view the state court’s inquiry as one into the defendant’s mental functioning, as permitted by the Faretta line of cases. By contrast, nothing cast doubt on Tatum’s competence in this sense of the term. Tatum’s education was not so limited that he would have been unable to defend himself. He told the judge that he attended public school until the tenth grade, after which he attended home school. He had been able to study court procedures and the Wisconsin statutes. That was enough. We note parenthetically that requiring defendants to have a high school diploma or its equivalent would preclude a great number of people from representing themselves and leave little left of Faretta. One recent study of adults in state and federal prisons estimated that some 30 percent of prisoners lack high school credentials. U.S. Dep’t of Educ., Nat’l Center for Educ. StatisTiCS, NCES 2016-040, U.S. Program for the Int’l Assessment of Adult Competencies, U.S. Nat’l Supplement: Prison Study 2014, Table 1.1, https://nces.ed.gov/pubs 2016/2016040.pdf.

We conclude that the way in which the Wisconsin courts implemented their Klessig test here was inconsistent with Faretta’s prohibition against resting the determination about the knowing and intelligent nature of the defendant’s choice on his “technical legal knowledge.” Faret-ta, 422 U.S. at 835-36, 95 S.Ct. 2525. This is apparent both from the state trial judge’s comments and from the Wisconsin appellate court’s concern that Tatum’s statements in court “reflect his limited understanding of the scope of a proper investigation for the defense of homicide charges” and its comment that he failed to appreciate “courtroom decorum and legal technicalities.”

None of this is to say that Tatum was making a wise choice when he tried so hard to win his right to self-representation. Faretta recognizes that “[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.” Id. at 834, 95 S.Ct. 2525. But Faretta protects the right of a criminal defendant to make this (usually) self-defeating choice. By failing to recognize that the Supreme Court’s Faretta line of cases focus only on competence as it relates to mental functioning, and forbids the consideration of competence in the sense of accomplishment, the Wisconsin courts reached a result that is contrary to, as well as an unreasonable application of, the Supreme Court’s rulings.

Ill

The judgment of the district court is Reveesbd and the case is Remanded for issuance of the writ of habeas corpus, unless the state within 90 days of issuance of this court’s mandate initiates steps to give Tatum a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Jan DOMANUS, et al., Plaintiffs-Appellants, v. LOCKE LORD LLP, et al., Defendants-Appellees.
    No. 15-3647
    United States Court of Appeals, Seventh Circuit.
    Argued September 8, 2016
    Decided January 31, 2017

      Robert S. Michaels, Attorney, Alan Francis Curley, Attorney, Robert L. Mar-golis, Attorney, Robinson, Curley & Clayton, P.C., Chicago, IL, for Plaintiffs-Appellants.
    Edward W. Feldman, Attorney, Marc Oliver Beem, Attorney, Kay L. Dawson, Attorney, William J. Katt, Attorney, Miller, Shakman & Beem LLP, Chicago, IL, for Defendants-Appellees Locke Lord LLP, Daniel I. Schlessinger, Martin W. Jaszczuk.
    Matthias A. Lydon, Attorney, Matthew Robert Carter, Attorney, Lawrence Desid-eri, Attorney, Tyler Johannes, Attorney, Winston & Strawn LLP, Chicago, IL, for Defendant-Appellee John A. Dienner, III.
    Stephanie Jones, Attorney, James R. Fi-gliulo, Attorney, Figliulo & Silverman, P.C., Chicago, IL, for Defendant-Appellee Kubasiak, Fylstra, Thorpe & Rotunno, P.C.
    Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.
   WOOD, Chief Judge.

If the allegations in the supplemental complaints filed in this case are to be believed, the defendant law firms and lawyers were involved in a hornet’s nest of ethical violations. The more difficult question, however, is whether the complaints state claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d), commonly known as RICO. Complicating matters is the fact that the alleged RICO violations all relate to a Polish company, Krakow Business Park Sp. z o.o. (Spólka z ograniczon§ od-powiedzialnosci§, which roughly means private limited company), and its affiliates and owners. See RJR Nabisco, Inc. v. European Community, — U.S.-, 136 S.Ct. 2090, 195 L.Ed.2d 476 (2016). The district court concluded, in an exhaustive opinion, that plaintiffs were estopped from asserting certain aspects of their claim and that nothing in the complaint plausibly asserted that the lawyer-defendants (which we will call them unless greater precision is needed) stepped over the line between representation of their clients and participation in a RICO conspiracy. We agree that the complaints do not state any federal claim, and so we affirm the district court’s judgment.

I

This is not the first time this court has encountered the problems of the Krakow Business Park. In Domanus v. Lewicki, 742 F.3d 290 (7th Cir. 2014) (Domanus I), we addressed a different slice of this litigation: a case brought (as this one is) by Jan Domanus and Andrew Kozlowski, two shareholders in the Business Park, against Adam Swiech, Richard Swiech, and Derek Lewicki, the other major shareholders. Domanus I reached us after a certification under- Federal Rule of Civil Procedure 54(b) to the effect that the judgment was final, separable from the remainder of the case, and there was no just reason for delaying the appeal. At thát time, the Swiechs and Lewicki challenged a default judgment of $413,000,000 that had been entered against them. The default was imposed as a sanction for discovery abuse. The plaintiffs offered evidence showing that they had suffered damages in the amount of $137,800,000. That number was then trebled to $413,000,000 pursuant to 18 U.S.C. § 1964(c).

Critically for the present appeal, the Swiechs and Lewicki argued in Domanus I that the district court should have stayed its determination of damages until the plaintiffs’ claims against nondefaulting defendants that were not involved in the appeal had been resolved — essentially, that there should have been no Rule 54(b) certification because the judgment was not sufficiently final. We responded as follows:

Though we have in the past prohibited district courts from holding a damages hearing against a defaulting defendant when the same claim remains pending against non-defaulting defendants, this rule- comes from concerns of judicial economy and inconsistent damages awards. In re Uranium Antitrust Litig., 617 F.2d 1248, 1262 (7th Cir. 1980). There is no concern for inconsistent awards here. The plaintiffs have committed — both in open court and in their briefs — to dismiss all claims against the nondefaulting defendants if the judgment against the Swiechs and Lewicki is affirmed. Accordingly, they will be judicially estopped from abandoning their firm commitment once we do so. See, e.g., Grochocinski v. Mayer Brown Rowe & Maw LLP, 719 F.3d 785, 795 (7th Cir. 2013).

The scope of the judicial estoppel on which we relied is one of the issues in the present appeal.

Before delving much further into the case now before us, it may help to set out the cast of characters, along with the shorthand designations we use in this opinion. The briefs present a bewildering alphabet soup of abbreviations, which we prefer to avoid.

Plaintiffs (collectively Domanus, unless context requires otherwise):

• Jan Domanus, shareholder in Krakow Business Park
• Andrew Kozlowski, shareholder in Krakow Business Park
• Krakow Business Park SP. z o.o. (now in bankruptcy in Poland) and its subsidiaries (ie., KBP-2 SP. z o.o., etc.), referred to collectively as the Business Park

Original Defendants (collectively the Swiech Group unless context requires otherwise):

• Adam Swiech, shareholder in the Business Park
• Richard Swiech, shareholder in the Business Park
• Derek Lewicki, shareholder in the Business Park

Supplemental Defendants (also referred to as the lawyer-defendants):

• Kubasiak, Fylstra, Thorpe & Rotun-no P.C. (“the Kubasiak Firm”)
• John Dienner III, a lawyer at the Kubasiak Firm
• Locke Lord, LLP
• Jay Safer, a lawyer with Locke Lord
• Daniel Schlessinger, a lawyer with Locke Lord
• Martin Jaszczuk, a lawyer with Locke Lord
Other Actors:
• Gordon & Karr, LLP, law firm initially representing the Swiech Group, called the Gordon firm
• Richard Karr, lawyer at the Gordon firm
• Janusz Dlugopolski, Polish lawyer for the Business Park, and also for Adam Swiech

At bottom, this litigation involves allegations that beginning in 1997 the Swiech Group undertook an extensive series of actions to loot the Business Park’s assets and thus to dilute the value of the firm and, by extension, the shares held by Do-manus and Kozlowski. Notably, all of the actions we are about to describe took place near Krakow, Poland. Several large office buildings make up the Business Park, which constructed and managed them. Among other things, the scheme involved tricking the Business Park to enter into sham contracts with members of the Swiech Group or companies they controlled, pursuant to which the Business Park paid for services that were never performed or paid inflated prices for land; causing the Business Park’s subsidiaries to lease office-building space at below-market rates to companies the Swiech Group controlled; misappropriating from the Business Park’s subsidiaries land worth about $28 million; and demanding and receiving kickbacks from building contractors the Business Park’s subsidiaries were using.

Some of the ill-gotten monies the Swiech Group received were then, Domanus asserted, funneled to Chicago-area businesses and properties that the Swiech Group managed. Adam Swiech also reinvested some of the stolen assets into the Business Park, thereby diluting Domanus’s and Kozlowski’s shares. The Swiech Group also killed a deal with an outside Luxem-bourgeois firm, Oreo, which had agreed to buy all of the Business Park’s outstanding shares.

In 2008 Adam’Swiech was arrested by the Polish authorities and charged with money laundering, forgery, tax evasion, and leading an organized crime ring, in connection with his conduct at the Business Park. Although he had to resign from his positions as president and sole management-board member of the Business Park, he allegedly maintained control by appointing family members and friends to key positions in his stead. He was convicted in 2014 on some charges, and apparently others were being prosecuted around the time this case was filed in the district court. Richard Swiech and Lewicki were also criminally charged in Poland for crimes related to the Business Park,,but the record does not reflect if or how those charges have been resolved.

All of this led to the lawsuit that came before us .in Domanus I, and that we are now revisiting. As we noted earlier, in this action Domanus and Kozlowski assert claims under RICO and state law. Their action against the original defendants (the Swiech Group) was resolved by a default judgment, which had been entered as a discovery sanction. We accepted that appeal on the representation that Domanus and Kozlowski would dismiss all claims against the non-defaulting defendants — a group that included Katarzyna Szuberfc-Lewicki (Lewicki’s wife), Bozena Sanecka-Swiech (Richard’s wife), and several companies. See Domanus I, 742 F.3d at 294 n.2. At that time, neither of the Supplemental Complaints had been filed, and so the Supplemental Defendants had not yet been added to the case.

Domanus I did not, however, spell the end to Domanus’s efforts to recover for the alleged RICO conspiracy. In August 2014, plaintiffs filed a Supplemental Complaint against Locke Lord and its attorneys, and in November 2014, they added a Second Supplemental Complaint against the Ku-basiak firm and Dienner. Both supplemental complaints, it is worth' noting, appeared well after February 4, 2014, when this court decided Domanus I. In them, plaintiffs accused the lawyers and law firms of facilitating the alleged RICO conspiracy and violating state law by means of ethical violations — principally by simultaneously representing both the Business Park (the actual client) and, surreptitiously, the Swiech Group (the allegedly disloyal insiders).

Although they were recruited by Richard Karr, an attorney at the Gordon firm who was representing the Swiech Group, Dienner and his firm were engaged to represent the Business Park. Domanus accused Dienner (and derivatively - the Ku-basiak firm) of fraudulent billing practices, through which the Business Park was tricked into paying for the Swiech Group’s legal services at a time when it was adverse to their client, the firm. Dienner was also accused of collaborating with the Swiech Group’s attorneys on a joint defense, in violation of the “neutrality rule” under which, plaintiffs assert, corporate insiders accused of disloyalty are forbidden from defending themselves at the company’s expense. For example, he consulted with Karr as he prepared a motion to quash service on the Business Park, as he worked on responses to discovery motions, and as he prepared a reply brief. Dienner also allegedly participated in a fraudulent billing scheme, pursuant to which he managed to make the Business Park pay the attorneys’ fees for the Swiech Group, who were by then adverse to the company. He did so by concealing the letterhead of the Gordon firm on its bills, by serving as an intermediary between the Business Park and the Gordon firm, and by vaguely referring to work that was actually performed by Karr for the Swiech Group as “additional legal services.” Dienner was involved with the case for 14 months — from July 2010 until October 2011, when he and his firm were replaced by Locke Lord.

The latter firm’s representation lasted about a year, from May 2011 until May 2012. (There seems to have been some overlap with Dienner at first; we describe the maximum possible time.) Locke Lord initially was asked to represent both the Business Park and the Swiech Group, but it concluded that doing so would raise questions in the Polish prosecutor’s mind about Locke Lord’s independence. Doma-nus accuses Locke Lord of accomplishing this joint representation by subterfuge, including by billing for services rendered to benefit the Swiech Group. He also asserts that Locke Lord helped the Swiech Group by attempting to intimidate Kozlowski, by concealing evidence of looting, by concealing evidence of the RICO conspiracy, by providing a defense on the merits through a cross-claim it filed, and by facilitating a fraudulent dilution of the Business Park’s shares.

All of the lawyer-defendants moved for dismissal of the claims against them under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motions. It concluded first that the plaintiffs’ agreement to drop all claims against the non-defaulting defendants in Domanus I necessarily included an undertaking not to seek the same damages against the supplemental parties, and so they were judicially estopped to the extent that they were still pursuing damages that overlapped with those at issue against the original defendants. Nothing in the commitment they made to this court supported a limitation to parties that were already involved in the lawsuit, as far as the district court could tell. Such an approach would, the court thought, be inconsistent with In re Uranium insofar as it would raise the problem of potentially inconsistent damage awards. It recognized, however, that “there may be new ‘direct’ claims for which damages have not yet been determined,” and there are also the derivative claims. It held that neither of those types of claims fell within the judicial estoppel bar.

Nevertheless, the court concluded that the remainder of Domanus’s case failed for other reasons. Reviewing both the complaint and the full texts of certain documents central to its allegations, it found nothing indicating that the lawyer-defendants agreed to join the alleged RICO conspiracy. Domanus’s only theory under RICO rested on 18 U.S.C. § 1962(d), which requires that the defendant agree to some type of participation in the affairs of a RICO “enterprise” through a pattern of racketeering activity, and that the defendant agree that someone commit at least two predicate acts in furtherance of the conspiracy. (Domanus does not argue that the complaint supports any different RICO claim, and so we do not need to concern ourselves with the fact that plaintiffs are not obliged to plead legal theories.) The requisite knowledge, it concluded, could not come solely from a reading of the various complaints filed in the case, or from the accusations of the Polish prosecutor, because knowledge of accusations is not the same as knowledge that the underlying allegations are true. Neither could Domanus rely on knowledge gained from a huge document-drop of some 60 gigabytes of electronically stored information that the lawyers received, since Domanus acknowledged that the lawyers never meaningfully reviewed those materials. Willful blindness was also out as a theory, the district court thought, because the complaint showed that the lawyers had a sound and straightforward reason for skipping a painstaking review of the documents — cost, plus the idea that a better strategy would be to focus on what the plaintiffs did and what they knew. Overall, the court thought that the lawyer-defendants had done no more than to provide legal services. If they violated the rules of legal ethics in doing so by serving adverse parties (a point the court did not decide), they were subject to discipline, but the court thought that more needed to be shown for a RICO conspiracy.

The court had little to say about several additional defenses raised by the lawyers, including the assertion that RICO does not reach this arrangement, which unfolded in Poland except for the disposition of some of the ill-gotten gains; that the lawyers’ actions were immune from civil liability under the Noen-Pennington doctrine, see Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); and that the supplemental complaints failed adequately to allege causation. It relinquished jurisdiction over the supplemental state-law claims, see 28 U.S.C. § 1367(c)(3), and otherwise dismissed the case.

II

Before turning to the merits of the appeal, we offer a word about our appellate jurisdiction, which, as in Domanus I, depends on a certification under Rule 54(b) and 28 U.S.C. § 1291. In the present case, the district court resolved the claims of all plaintiffs (Domanus, Kozlowski, and the Business Párk, realigned as a plaintiff in the- bankruptcy proceeding) against the lawyer-defendants. Remaining in the district court is the adjudication of the damages claims the Business Park (with its subsidiaries) has against the Swiech Group (the original defendants). The district court conciuded that the latter claims are separate from anything pertaining to the lawyers and that there is no just reason for delay for the present appeal.

Under Rule 54(b), when (as here) multiple parties or claims are involved, “the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” Otherwise, the partial resolution of the case must await a true final judgment — one that resolves all claims of all parties. See generally Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009); General Ins. Co. of Am. v. Clark Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011). It is not enough to resolve something that is designated as a separate claim, if other aspects of the case involve the same underlying subject matter. The claim resolved must dispose of a distinct issue; only then will there be “no just reason for delay” in the appellate process. In hindsight, we wonder whether Rule 54(b) was properly used in Domanus I. It is too late now, however, to do anything about that. We are limited to evaluating the propriety of appellate jurisdiction in the case now before us.

We can immediately set aside two problems that occasionally arise: timeliness and parties. Domanus filed this appeal within 30 days of the district court’s Rule 54(b) certification, and there are no claims. of any kind left in the district court against the lawyer-defendants. The difficult issue concerns the relation between these claims and those that the Business Park is attempting to resolve against the original defendants. If the original alleged conspiracy to loot the Business Park is distinct from the allegedly disloyal actions undertaken by the lawyers, then the appeal can go forward. If instead we are looking at one amorphous conspiracy to siphon money from the Business Park whenever, however, and by whomever, then we have a serious finality problem.

The district court understood the supplemental complaints to allege a series of actions undertaken in connection with the legal representation of the Business Park in connection with Domanus and Kozlow-ski’s 2008 RICO lawsuit. These actions, it thought, were qualitatively different from the various ways in which Adam Swiech, Richard Swiech, and Derek Lewicki were allegedly looting the firm and its subsidiaries — the actions at issue under the original complaints, as amended, and the actions that have given rise to criminal proceedings in Poland. The question of the scope of the complaint, it turns out, also has some bearing on our resolution of the merits of the appeal, but there is no avoiding this overlap when we are construing a Rule 54(b) certification.

Although the question is a close one, we conclude that the line drawn by the district court between the conduct at issue in the underlying legal proceedings (the original looting) and the conduct of the Business Park’s lawyers offers the best way to understand this case. It is in no one’s interest to define the alleged conspiracy so capaciously that it sweeps in conduct unlimited by time, purpose, and actors. We therefore conclude that we do have jurisdiction pursuant to Rule 54(b) and 28 U.S.C. § 1291, and we proceed to the merits.

Ill

Because the district court dismissed this case for failure to state a claim, we consider the issues de novo, accepting as true the factual allegations of the two supplemental complaints, drawing inferences in the plaintiffs’ favor, and asking whether they state a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We will focus on Domanus’s RICO theory, because if it survives, the supplemental claims will come back into the case, but if it was properly dismissed, then the district court had discretion under the supplemental jurisdiction statute, 28 U.S.C. § 1367(c)(3), to relinquish them. (It appears that there may be citizens of Illinois on both sides of the case, which would explain why there is no allegation of independent jurisdiction over the supplemental claims under the diversity statute, 28 U.S.C. § 1332.)

Domanus sued the lawyer-defendants under RICO’s conspiracy subsection, which provides in relevant part that:

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.

18 U.S.C. § 1962. Briefly puts a plaintiff proceeding under subsection (d) must allege that the defendant (1) agreed to'maintain an interest in or control of an enterprise, or to participate in an enterprise’s affairs, (2) through a pattern of racketeering activity, and (3) that the defendant agreed that some member of the conspiracy (not necessarily the defendant herself) would commit at least two predicate acts in furtherance of those goals. DeGuelle v. Camilli, 664 F.3d 192, 204 (7th Cir. 2011). The conspiracy provision is concerned with the agreement to participate in an- endeav- or, which if completed would violate a substantive provision of the Act. Goren v. New Vision Int’l, Inc., 156 F.3d 721, 731-32 (7th Cir. 1998). Subsection (c) is the relevant substantive provision here; it requires conduct of an enterprise through a pattern of racketeering activity. Gamboa v. Velez, 457 F.3d 703, 705 (7th Cir. 2006).

Everything hinges on whether, reading the supplemental complaints as favorably to the plaintiffs as we can, they allege that the lawyer-defendants agreed to join the longstanding alleged conspiracy among the Swiech Group to loot the assets of the Business Park and cover up their actions. The first step is to allege that each defendant — that is, the individual lawyers and the two firms — knew about this conspiracy. United States v. Muskovsky, 863 F.2d 1319, 1324 (7th Cir. 1988) (plaintiff must show that a defendant in a RICO conspiracy action “was aware of the essential nature and scope of the enterprise and intended to participate in it.”) (internal citation omitted). The district court concluded that the complaints fell short in this respect, even under the generous standard required by Rule 12(b)(6).

There are two ways in which the plaintiffs might have pleaded knowledge: actual knowledge or willful blindness. We consider these in turn.

Actual knowledge may be proven either by direct or circumstantial evidence; as we held in Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016), there is no reason to privilege one type of evidence over another. Circumstantial evidence involves drawing an inference from the circumstances, see Washington v. LaPorte Cnty. Sheriff’s Dept., 306 F.3d 515, 519 (7th Cir. 2002). Here, Domanus alleges that Locke Lord was aware of the conspiracy “because Defendants expressly asked them to engage in its core activity: taking money from [the Business Park] on false pretenses and using it to benefit [the Swiech Group], including by perpetuating their control of [the Business Park].” He supports this allegation by reference to the supposedly unsavory billing practices that were used, under which first Dienner, and later the Locke Lord attorneys, tucked services for the Swiechs and Lewicki inside their bills to the Business Park and thereby extracted money from the Business Park for the benefit of the allegedly disloyal individuals.

Although a conspirator does not need to know the intricacies and full dimensions of the scheme in order to be liable (or convicted in a criminal case), he must be aware of its essential scope and nature. See United States v. Volpendesto, 746 F.3d 273, 285 (7th Cir. 2014). Inappropriate though the billing practices may have been (and, like the district court, we do not need to reach this question), they do not get the plaintiffs where they need to go. Let’s assume that the lawyer-defendants should have smelled a rat from Lew-icki’s comments and the elaborate efforts to conceal the individual bills in their invoices. What kind of rat was it? More concretely, does their participation or acquiescence in this allegedly shady effort shed any light on whether they personally knew about the sham contracts, the leasing arrangements, and the other fraudulent activity that had occurred years before they were engaged — that is, about the RICO conspiracy that Domanus and Ko-zlowski, and later the company, originally attacked? Nothing in the complaints supports a conclusion that they had such knowledge. As to the lawyer-defendants, the complaints support only an inference that they misrepresented their failure to observe the alleged ethical restrictions on representing both a victim-corporation and its disloyal insiders under the version of the neutrality rule Domanus asserts is applicable. This is hardly admirable, but it is a far cry from participating in a RICO conspiracy based in Poland.

Domanus also pointed to the allegations in the Third Amended Complaint and certain statements from the Polish prosecutor as sources of the lawyer-defendants’ actual knowledge. But, as the district court pointed out, lawyers look at allegations every time they are engaged to respond to a lawsuit. They are not obliged to treat those allegations as true; to the contrary, they recognize that a plaintiff is asserting only that it proposes to prove them, and they evaluate the complaint to see what kind of a defense can be raised. Faced with a similar situation, the D.C. Circuit reached this commonsense conclusion in a case in which the plaintiff alleged that a defendant law firm knew about its client’s wrongdoing. RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 682 F.3d 1043 (D.C. Cir. 2012). There the plaintiff had alleged that the law firm knew about its client’s bribery conspiracy from news reports about the bribery and embezzlement scheme, the client’s reputation for wrongdoing, and a prior criminal conviction. Id. at 1048-50. The court concluded that “[t]hese allegations are insufficient to establish a plausible inference that [the defendant law firm] was aware of anything corrupt relevant to its provision of legal services other than accusations made by and on behalf of Global Petroleum’s litigation adversary and general reports of public corruption in Grenada.” Id. at 1050. The same idea applies here.

Domanus also argues that everything the lawyer-defendants saw, combined with the allegations in the Third Amended Complaint and the prosecutor’s statements, made it at least plausible that they actually knew about the conspiracy. We do not doubt that these materials raised a red flag, but that takes us from the realm of actual knowledge to that of willful blindness. The billing scheme and the efforts of the Swiech Group to get their litigation costs paid by the Business Park are troublesome. Nonetheless, the fact that someone should have known about a scheme or fraudulent activity is not enough to show that the person actually knew. See Frost Nat’l Bank v. Midwest Autohaus, Inc., 241 F.3d 862, 870-71 (7th Cir. 2001) (but noting that once the party became suspicious, it took steps to deal with the situation). Here, there are no allegations suggesting that the lawyers knew about the Swiech Group’s efforts to loot the business before the time of their engagement, and thus nothing plausibly suggesting that the lawyers joined any conspiracy related to those efforts.

Willful blindness might be a better theory for the plaintiffs, but it too falls short. An inference of knowledge through willful blindness requires that the defendant “believe that there is a high probability that a fact exists” and “take deliberate actions to avoid learning of that fact.” Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769, 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011). Only a subjective belief that there is a high probability that the fact is true, coupled with deliberate steps to avoid learning the fact, is equivalent to knowledge. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 240 (5th Cir. 2010) (“Neither awareness of some probability of illegal conduct nor a showing that the defendant should have known is enough” to constitute the legal equivalent of knowledge.).

The key to this, argument lies in an email that Jaszczuk (one of the Locke Lord attorneys) sent to his colleagues in the firm, proposing a strategy for the litigation. The email is central to the plaintiffs’ claims and was referred to in the supplemental complaints. The district court was therefore entitled to consider it in resolving the motion to dismiss. See 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002). In the email, Jaszczuk acknowledged that sifting through the voluminous discovery materials that the firm had received would be time-consuming and extremely expensive. He predicted that the Business Park “simply wouldn’t be able to (or wouldn’t want to) pay for this type of undertaking.” He accepted that if they did undertake such a review, “we might very well learn that certain of the allegations are technically true — i.e. that the transactions did occur and that they weren’t entirely above board. But, I also get the feeling that we might find that [plaintiffs] were well aware of what was going on.” He suggested that the firm focus on “what the Plaintiffs did and what they knew” when examining the discovery, and leave the rest to the prosecutor.

Taking this favorably to the plaintiffs, this does indicate that Jaszczuk at least suspected- that the Swiech Group defendants were up to something shady. What it does not indicate, however, is that he was avoiding the truth because he did not want to learn the answer. His decision, apparently adopted by Locke Lord, was to skip an exhaustive review of the 60 gigabytes of electronically stored information for the time being in order to save the client money; instead, he proposed what he painted as a more efficient strategy. This is not enough to show willful blindness. Indeed, the email as a whole, which is quoted in the district court’s opinion, does not imply that the documents, if read, would reveal evidence of a conspiracy; at most it says that Jaszczuk thought that some transactions “weren’t entirely above board.” He apparently thought that the plaintiffs might have been part of those deals, which would have put a very different spin on things.

Apart from the supplemental complaints’ shortcomings on the subject of knowledge, they are also deficient on the question of agreement — a critical element of a RICO conspiracy case. See Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir. 2000). We accept that Domanus presented allegations showing that the Swiech Group, with the assistance of its attorney, successfully persuaded first Dienner and then the Locke Lord attorneys to restructure their bills and to coordinate their litigation activities. But the allegations do not tie the story together to show how the lawyer-defendants would have understood these actions (dubious as they may have been, ethically) as an extension or part of the conspiracy to loot the Business Park.

In order to raise an allegation of a conspiracy prohibited by section 1962(d), the plaintiff must allege (1) that the defendant agreed to conduct or participate in the affairs of an “enterprise,” and (2) that he agreed to the commission of two predicate acts. Frost, 241 F.3d at 869; Goren, 156 F.3d at 732. The absence of either of these is fatal to the claim. Formal agreement is not necessary; when the acts performed by the alleged members of the conspiracy are unlikely to have been done alone, the court may infer agreement. Kunik v. Racine Cnty., 946 F.2d 1574, 1580 (7th Cir. 1991); see Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) (circumstantial evidence of anticompetitive agreement must tend to exclude the possibility that the alleged conspirators acted independently). In addition, we bear in mind that mere association with conspirators is not enough to establish an agreement. Goren, 156 F.3d at 732. Claims that lawyers have conspired with their clients are insufficient in the absence of allegations that the arrangement involves more than standard legal representation. See RSM, 682 F.3d at 1051-52.

The allegations against the lawyer-defendants are easily explained by their own self-interest: making money and keeping a client happy by avoiding excessive discovery costs. There is no indication that the lawyer-defendants earned any extra money for facilitating the Swiech Group’s efforts to have them bills paid by the Business Park, nor that they hatched the plan. But, Domanus insists, the lawyer-defendants were doing more than providing legal representation for their client, because they were simultaneously doing the bidding of their client’s adversary. Why would they have done this, without some agreement in place? The short answer is that there may have been some agreement, but it is not one that was ever tied to the RICO conspiracy alleged in the underlying lawsuit.

In the end, as we said in considering our appellate jurisdiction, whatever wrongdoings (if any) that occurred in the course of any of the representation furnished by any of the lawyer-defendants were outside the scope of the RICO conspiracy asserted in this case. Although the supplemental complaints paint a dismal picture of these attorneys’ behavior, assuming the truth of the allegations of disregard for the alleged neutrality principle, misleading billing statements, and the like, these problems must be addressed in a different forum.

The lawyer-defendants also have presented a number of alternative arguments in support of the district court’s decision. We see no reason to reach them, but we acknowledge them here to confirm that they were properly preserved. First, the lawyer-defendants argue that it is now clear that the conspiracy alleged throughout these proceedings falls outside the territorial scope of RICO, in the wake of RJR Nabisco, supra. Questions pertaining to the extraterritorial coverage of statutes normally go to the reach of the statute, not the court’s jurisdiction. See Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) (securities laws); Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012) (en banc) (antitrust). In RJR Nabisco, the Court held that RICO’s substantive prohibitions can apply extraterritorially, but just insofar as the predicate violations themselves have rebutted the presumption against extraterritoriality. The case before the Court involved 18 U.S.C. § 1962(c); with respect to that subsection, the Court held that there is no private right of action for injuries suffered outside the United States. Importantly for us, the Court expressly declined to reach the question whether the same rule should apply to RICO’s conspiracy subsection, § 1962(d), which is the one involved in our case. Because we have resolved the matter before us on other grounds, we are content to leave this for another day, although we suspect that a person asserting a private right under subsection (d) to recover for foreign injuries may have an uphill battle after RJR Nabisco.

We are also disinclined to rest our decision on judicial estoppel, even though we agree with the district court that there is at best a troubling inconsistency between plaintiffs’ commitments to this court at the time of Domanus I and their present position. Some aspects of the new claim may indeed be estopped, but to the extent that plaintiffs are now complaining about a different alleged conspiracy, the requirements for judicial estoppel might not be met. Rather than untangling all the threads, we elect not to rest on this point. Even under the district court’s view, not everything was barred by judicial estoppel, and so it is easier to set this aside.

We express no opinion on the applicability of the Noerr-Pennington doctrine to the lawyer-defendants’ actions. That doctrine — which initially appeared in the field of antitrust — recognizes that statutes should not be construed to cover the activity of petitioning government, if at all possible. Whether the branch of government is the legislature, the executive, or the courts, the right to present one’s viewpoint is protected by the First Amendment. There is a “sham” exception to Noerr-Pennington, see Prof. Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993), but it is difficult to show that litigation is so objectively baseless, or so clearly based on knowing and material falsehoods, that the exception applies. We note only that there are ihany tools available to discipline lawyers who foment frivolous litigation, and so our decision not to reach this point is of little consequence.

Finally, as we indicated at the outset, the district court has broad discretion over claims brought under its supplemental jurisdiction, 28 U.S.C. § 1367. Typically, when a case is dismissed under Rule 12(b)(6), the district court will relinquish jurisdiction over these claims and allow the state courts (or possibly in this case, the foreign court) to take over if that is proper under their rules. That is the choice the district court made here, and it is one that was comfortably within its discretion.

IV

No one, least of all the law firms and lawyers involved in these matters, covered himself with glory, accepting for present purposes the allegations in the two supplemental complaints. Nevertheless, we agree with the district court’s concluding comment: “Plaintiffs certainly provide a detailed claim of wrongdoing by the attorney defendants, and plaintiffs may not be without recourse. But their path to relief based on these allegations is not through RICO, and thus not in federal court.” We Affirm the judgment of the district court.

      . For the sake of argument, we will assume in this appeal that a corporate neutrality rule along the lines described by plaintiffs applied to the defendants. We must note, however, that the scope of such a duty is not defined sharply or universally in American corporate law. For American corporations, such duties are ordinarily a matter for the law of the state of incorporation under the internal affairs doctrine. See generally CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 89, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987) ("No principle of corporation law and practice is more firmly established than a State’s authority to regulate domestic corporations.... ”); Restatement (Second) of Conflict of Laws § 309. In this case Polish law would seem to govern such duties for those involved in the Business Park, yet plaintiffs have made no effort to inform us about applicable Polish law. See Fed. R. Civ. P. 44.1 (party who intends to raise issue about a foreign country’s law must give written notice).