In my earlier “Week in Review” post, I discussed the Seventh Circuit’s new sentencing decisions. This post rounds out my review of the Seventh Circuit’s busy week.
In United States v. Turner (No. 07-1062), a jury convicted the defendant of wire fraud and making false statements to the FBI. Turner was a supervisor in the Illinois Secretary of State’s office. In that position, he assisted three janitors in a scheme to obtain compensation for work they did not perform. (Insert your favorite joke about corruption in Illinois state government here.) On appeal, Turner argued there was no evidence to establish that the fraud was committed by use of the wires. However, the Seventh Circuit (per Judge Sykes) held it was enough that the janitors’ fraudulently inflated paychecks were direct-deposited in their accounts. Turner also argued that, since he himself derived no benefit from the fraud, the evidence was insufficient to convict him of “honest services” fraud. However, the court indicated that the benefit received by the janitors would suffice, and, in any event, “honest services” was only one of two alternative wire fraud theories submitted to the jury. Finally, Turner argued that the evidence was insufficient to support the false statements conviction because, although he lied to FBI investigators, the investigators were not fooled by what he said. Again, the court disagreed:
A false statement neen not actually influence the agents to whom it is made in order to satisfy the materiality requirement for this offense; it need only have the possibility of influencing a reasonable agent under normal circumstances.
Turner’s convictions were thus affirmed in all respects.
In United States v. Vargas (No. 07-2026), a jury convicted the defendant of possessing cocaine with the intent to distribute. The cocaine was found in a hidden compartment in a trailer that Vargas was using to haul produce. On appeal, Vargas challenged the use of evidence that he had also transported drugs along with loads of produce on prior occasions. These prior acts were not themselves made the subject of criminal charges, but were introduced as evidence to counter Vargas’s contention at trial that he did not know the trailer contained cocaine.
As regular readers of “Week in Review” will immediately recognize, Vargas was raising an issue about the scope of Federal Rule of Evidence 404(b). There has been a flurry of recent 404(b) cases in the Seventh Circuit (discussed, e.g., here). Rule 404(b) prohibits evidence of prior crimes in order to show a defendant’s propensity to break the law, but permits such evidence to show, among other things, knowledge. In prior posts, I’ve been critical of the Seventh Circuit’s willingness to admit prior crimes evidence to show knowledge when knowledge is not really at issue; in such cases, it seems to me that the probative value of the evidence is outweighed by the high likelihood the evidence will be used by the jury for impermissible propensity purposes. But, in Vargas, knowledge really was at issue.
Still, I am a bit uncomfortable with how the trial court handled the evidence, giving only this cursory limiting instruction:
You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of knowledge. You should consider the evidence only for this limited purpose.
This vague instruction seems to me a wholly inadequate way to address the risks that the evidence would be used to establish propensity. A better instruction would have specifically identified what “the question of knowledge” was — this is a shorthand that makes sense to lawyers, but that is apt to mystify jurors — and also specifically identified what jurors were not supposed to do with the evidence, i.e., to establish the defendant’s bad character and propensity to commit crimes.
The Seventh Circuit (per Judge Kanne) nonetheless affirmed. I think this is the right result because, even excluding the prior acts, the evidence against Vargas was overwhelming. But I wish the court had used this opportunity to urge clearer jury instructions on prior acts evidence.
In United States v. Wooden (No. 08-1600), the court (per Chief Judge Easterbrook) affirmed that police may conduct a pat-down search of a suspect on the basis of an anonymous 911 call that reports an ongoing crime involving a gun.
In United States v. Hill (No. 07-3341), the defendant and prosecutor agreed at trial to a method of exercising peremptory strikes and selecting alternate jurors that was inconsistent with the process prescribed in Federal Rule of Criminal Procedure 24. After being convicted, the defendant appealed on the ground that the jury was improperly selected — a tough claim to advance, since he had expressly agreed to the jury-selection method. To overcome this difficulty, Hill argued that the Rule 24 procedures (like the right to a unanimous jury verdict) cannot be waived. However, the Seventh Circuit (per Judge Tinder) held (without much analysis) that the Rule 24 procedures are different than the unanimity requirement. The court nonetheless considered whether the Rule 24 violations counted as “plain error,” and held they did not.
Along the way, the court had occasion to comment critically on the scheme of a 30 Rock character to avoid jury service by showing up for jury duty dressed as Princess Leia and claiming to be able to read thoughts:
While such conduct may be amusing in a television sitcom, it is not seen as humorous by trial judges in real life. Anyone attempting to gain rejection from jury service by providing false or disruptive information during voir dire should keep in mind that they are under oath during the process and that the trial judge has contempt powers.
Take that, Tina Fey!