United States of America v. Thomas J. Zajac

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 13, 2025*
Decided February 13, 2025
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-1224
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS J. ZAJAC,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:10-CR-00376(1)
Matthew F. Kennelly,
Judge.
O R D E R
Thomas Zajac, a federal prisoner, was convicted by a jury of bombing a train
station and using the mail to threaten additional bombings. He now appeals, asserting a
host of errors, ranging from violations of his right to a speedy trial to errors in
* We have agreed to decide the case without oral argument because the briefs and record
adequately present the facts and legal arguments, and oral argument would not significantly aid the
court. FED . R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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evidentiary rulings, faulty jury instructions, and insufficient evidence to convict. We
affirm.
I.
In September 2006, a pipe bomb exploded inside a trash can in the waiting room
of a Metra station in Hinsdale, Illinois. One month later, the Chief of the Hinsdale Police
Department received a letter that claimed credit for the pipe bomb, citing retribution for
misconduct by the Hinsdale police and threatening future deadlier bombs. The letter
contained information about certain components in the bomb that were not public
knowledge. That same month, a pipe bomb exploded in a public library in Salt Lake
City, Utah. The Chief of the Salt Lake City Police Department received a letter similar in
content to the one sent to the Hinsdale police. A forensic analysis of the letters and
bombs led to Zajac becoming a suspect in both bombings. One motivation for the
bombings appears to have been the 2005 arrest of Zajac’s son, who then was suffering
from a medical crisis. A search of Zajac’s apartment turned up other evidence tying him
to the bombings.
Zajac was then indicted in both the District of Utah and the Northern District of
Illinois. In 2010 he was convicted in the Utah case and ultimately sentenced to 258
months’ imprisonment. The Illinois case, however, stalled. A succession of attorneys
appointed to represent Zajac sought to withdraw because of conflicts with him, leading
him to proceed pro se in 2017. In the ensuing years, the district court resolved hundreds
of pretrial motions, and the COVID-19 pandemic delayed matters further.
The Illinois case finally went to trial in January 2023. Almost at the outset, the
district court declared a mistrial after two jurors fell sick—one from COVID-19—and
others asked to be excused based on fear of infection. Zajac did not object to excusing
the jurors or declaring a mistrial. With the parties’ agreement, the court rescheduled the
trial to begin September 5 and to last three weeks. The court ordered the intervening
time excluded from the calculation of the 70-day speedy trial period. 18 U.S.C.
§ 3161(h)(7)(A), (B)(iv). The court, however, did not put on the record any findings
regarding the excluded time.
A few weeks after the mistrial, Zajac moved to continue the trial based on his
paralegal’s schedule. The court agreed to move up the starting date a week, to August
29, 2023.

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In April 2023, Zajac moved under the Speedy Trial Act to dismiss the indictment
based on the new trial’s delayed start, adding that impermissible considerations—
namely, the court’s congested calendar—dictated its rulings on the mistrial and its
exclusions of time under the Speedy Trial Act. The court denied the motion. The court
explained that the mistrial stemmed from juror illnesses and related excusals, not the
anticipated length of trial, and that time had been excluded under the Speedy Trial Act
because of the complexity of the case, the need for continuity of standby counsel, and
the time for the parties to effectively prepare for trial.
On August 29, the second trial began. The government presented evidence and
testimony from 17 witnesses that Zajac built and detonated the pipe bomb and sent the
threatening letter to the Hinsdale Police Department. An employee of the Hinsdale
Metra Station, Gloria Dado, testified that the explosion was so powerful that it
perforated her eardrum and ignited a fire inside a trash can. Forensic testimony
described how the materials used in the bomb resembled materials found in Zajac’s
apartment. Fingerprint examiners testified that Zajac’s fingerprints matched the
fingerprints on the envelope of the letter sent to the Hinsdale Police Department. A
Hinsdale police officer also testified that Zajac went to the police station after his son’s
2005 arrest, became “irate,” tore items off the wall, and cursed at and threatened the
officers. Zajac, who presented 17 witnesses of his own, argued that his son had framed
him, that the government failed to prove that the bomb was an explosive, and that the
absence of damage to the train station meant that the bomb’s maker could not be
charged with attempt to damage the station.
During deliberations, the jury sent a note to the court asking three questions,
among them a request for a definition of “real and personal property.” The court
responded that the phrase in context referred to “the Hinsdale Metra Station or
accompanying railroad tracks.” Zajac endorsed the court’s response to the jury’s note.
The jury convicted Zajac on three counts: attempting to damage the Hinsdale Metra
Station (count one), 18 U.S.C. § 844(i); possession of an unregistered destructive device
(count three), 26 U.S.C. § 5861(d); and use of the mail to make a threat to the Hinsdale
Police Department (count four), 18 U.S.C. § 844(e).
Zajac moved for a judgment of acquittal as to count one, arguing that the
evidence failed to establish that the pipe bomb could damage the Hinsdale Metra
Station. The court disagreed and denied the motion.

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The court then sentenced Zajac to concurrent terms of 240 months’ imprisonment
on count one and 120 months’ imprisonment on counts three and four. The terms of
imprisonment were to run consecutive to the sentence imposed by the district court in
Utah.
II.
A. Speedy Trial Act
Zajac first argues that the court improperly excluded time under the Speedy Trial
Act. This Act, which contains a long list of exclusions, requires a new trial to begin
within seventy days from the date of a mistrial. 18 U.S.C. § 3161(e), (h). In Zajac’s view,
the district court impermissibly excluded time in the mistrial’s aftermath based on
reasons related to its busy calendar. See id. § 3161(h)(7)(C).
Zajac misapprehends the basis of the district court’s ruling. As the court
explained later (in its order denying Zajac’s motion to dismiss the indictment), it
excluded time based not on calendaring concerns but rather the case’s complexity, the
need for continuity of standby counsel, and the importance of giving the parties
reasonable time to prepare effectively for trial. See id. § 3161(h)(7)(A), (B)(iv). While it is
the “best practice, of course, for a district court to put its findings on the record at or
near the time when it grants the continuance,” we have held that a post-hoc
explanation, as here, can satisfy the on-the-record finding requirement, United States v.
Chanu, 40 F.4th 528, 547 (7th Cir. 2022) (discussing Zedner v. United States, 547 U.S. 489,
506–07 (2006)), and the district court here appropriately exercised its discretion to
exclude the seven-month delay after the mistrial. The court was right to highlight the
case’s complexity (spanning more than a thousand docket entries and involving large
numbers of witnesses and exhibits), the limited availability of standby counsel (only in
August and September), and the parties’ need for more time to prepare (the second trial
was anticipated to last three weeks with an expected 56 witnesses from at least 12
different states).
Even if the court had improperly exclude time under 18 U.S.C. § 3161(7)(A), the
Speedy Trial Act’s 70-day clock would not have expired because each of Zajac’s 29
pretrial motions triggered automatic time exclusions under § 3161(h)(1)(D), (H). United
States v. Avila, 106 F.4th 684, 698 (7th Cir. 2024) (discussing § 3161(h)(1)(D), (H)).

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No. 24-1224 Page 5
Accounting for those exclusions, the district court calculated that 59 days of unexcluded
time elapsed from the clock (the government, asserting that the court overlooked three
days that were automatically excluded because they were the dates on which the court
issued its rulings, calculates 54). To the extent Zajac believes that the district court
misapplied two motions (a motion to continue the trial and a motion to admit a police
report), they would not affect the speedy trial calculations because disregarding both
would still result in only 54 days of unexcluded time, given three other motions
pending at the same time.
B. Sufficiency of the Evidence
Zajac next challenges the sufficiency of the evidence at trial regarding count one,
concerning the damage the device caused to the train station’s structure or tracks. To
establish the element of attempt, the government had to prove that he intended and
took a substantial step to damage the Hinsdale Metra Station with an explosive device.
See United States v. States, 72 F.4th 778, 785 (7th Cir. 2023). Zajac maintains that the
evidence was insufficient to prove that he took a substantial step to damage the train
station with a bomb because the device’s explosion did not damage the train station’s
structure or tracks.
If we view the evidence in a light most favorable to the government,
see United States v. Page, 123 F.4th 851, 858 (7th Cir. 2024) (en banc), the evidence at trial
was sufficient for a rational jury to conclude that Zajac intended and took a substantial
step to damage the train station with an explosive device. Testimony from forensic
examiners and chemists, for instance, linked bomb-making materials with materials
found in Zajac’s apartment. Fingerprint experts testified that Zajac’s fingerprints were
on the letter sent to the Hinsdale police; that letter stated that the bomb was placed to
embarrass and punish the police department. A Hinsdale Police officer recalled how
Zajac became “irate” at the police station after his son’s arrest. A bomb reconstruction
expert testified that shrapnel from PVC pipe bombs have the capability to damage
windows and walls. A train station employee also testified that the explosion started a
fire in the trash can and that first responders had to remove the trash can and
extinguish the fire. And a forensic chemist recounted that she found unexploded
components of the device that had blown out of the trash can in the explosion.

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No. 24-1224 Page 6
C. Evidence of Employee’s Injured Ear
Zajac next challenges the district court’s decision to allow the government to
introduce evidence that the pipe bomb’s explosion perforated the eardrum of a ticket
agent for Hinsdale Metra, Gloria Dado. Zajac contends that the district court
constructively amended the indictment by admitting evidence of Dado’s injured ear
such that the jury convicted him for injuring a person rather than attempting to damage
property—the charged offense. Constructive amendment occurs when the court
broadens the possible bases for conviction beyond those presented by the grand jury.
United States v. Farmer, 38 F.4th 591, 606 (7th Cir. 2022).
The court here did not broaden the indictment. The evidence of Dado’ injury was
used not to prove a new or different crime but rather to show that Zajac placed the
explosive device in a trash can to cause property damage to the train station.
Relatedly, Zajac argues that Dado’s testimony and the government’s reference at
closing argument to it was unfairly prejudicial because it inflamed the jury to convict
him based on “heinous injury evidence” rather than the capability of the device to
damage the train station. But the risk of unfair prejudice did not substantially outweigh
the probative value of Dado’s testimony. See F ED. R. EVID. 403. Dado’s testimony was
probative because it tended to prove a key disputed element of the charged crime,
see United States v. Johnson, 89 F.4th 997, 1004 (7th Cir. 2024)—that a device that could
damage Dado’s eardrum was also capable of damaging property. As for the
government’s closing argument, the government drew permissible inferences from the
record when invoking Dado’s testimony to argue that the device was an explosive that
could have damaged the train station. See United States v. Chavez, 12 F.4th 716, 732
(7th Cir. 2021). Regardless, any error in admitting the testimony was harmless because
of the overwhelming evidence of guilt. United States v. Parker, 11 F.4th 593, 596 (7th Cir.
2021). The jury heard evidence from dozens of witnesses over three weeks showing that
Zajac built and detonated a pipe bomb for which he claimed responsibility in a letter to
the police.
D. Objections to Zajac’s Cross-Examination Questions
Zajac next argues that when the district court sustained objections to two
questions he asked of a bomb reconstruction expert, the court abused its discretion
because his questions were relevant. In the August 2023 trial, Zajac asked a bomb

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No. 24-1224 Page 7
reconstruction expert, “Given the lack of damage to the tracks and depot, do you have
an opinion as to whether an attempt was made to damage the tracks and depot walls?”
The government posed an objection, which the court sustained because an expert
witness may not opine on whether the construction and placement of the bomb was an
attempt. The court did not abuse its discretion in sustaining the objection because
Zajac’s question implicated Rule 704(b) of the Federal Rules of Evidence, which
prohibits expert witnesses from opining about whether a defendant had the requisite
mental state that constitutes an element of the crime charged. Diaz v. United States,
602 U.S. 526, 534 (2024). Any question about whether the bomb was an attempt to
damage the train station goes directly to the question of the maker’s intent.
Zajac also asked the bomb reconstruction expert, “Now, as it pertains to an
attempted damage and destruction of the depot and train tracks, are you aware of a
particular bomb that would be capable of destroying both the depot and the tracks?”
The government objected on relevancy grounds, and the district court sustained the
objection. The court was well within its discretion to find the question irrelevant under
Rule 403 of the Federal Rules of Evidence. The scope of damage caused by a larger
bomb says nothing about whether the device in the station was a bomb and provides no
insight into the maker’s intent.
E. Jury Note and Instructions
Zajac argues that the district court abused its discretion in responding to the
jury’s note requesting clarification about the meaning of “real or personal property” for
purposes of count one. He argues that the court’s response—that the employee’s injury
is not to be associated with property—negated the basis on which the court permitted
the evidence to be used. But Zajac waived any challenge to this response when he
affirmatively endorsed it and registered no objection. United States v. Protho, 41 F.4th
812, 832 (7th Cir. 2022). Regardless, the court did not plainly err because it accurately
restated the definition, consistent with the pattern jury instructions and indictment.
Zajac next argues that the pattern jury instructions limited the government’s
burden of proof because they instructed the jury to determine whether the defendant
committed the offense of “damaging or attempting to damage a building,” when the
indictment charged “damage and destroy and attempted to damage and destroy.” Zajac
objected to the pattern jury instructions’ use of the disjunctive “or” rather than the
conjunctive “and” that appears in the text of indictment. But a district court does not

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abuse its discretion when it gives jury instructions “in the disjunctive in the context of a
conjunctively worded indictment.” United States v. Rice, 520 F.3d 811, 817 (7th Cir. 2008)
(quotation omitted). And the instruction here accurately reflected the law. Section 844(i)
uses the disjunctive “or”: “[w]hoever maliciously damages or destroys, or attempts to
damage or destroy.”
Lastly, Zajac argues that it was an error to omit the word “destroy” from the jury
instructions. But this is not an error because when a jury returns a verdict on an
indictment charging multiple acts in the conjunctive, the verdict stands if the evidence
is sufficient with respect to one of the acts charged. Rice, 520 F.3d at 817.
We have considered Zajac’s other arguments, none merits discussion.
AFFIRMED

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