United States v. White, Robert ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1769
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT WHITE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 05 CR 79—Rudy Lozano, Judge.
____________
ARGUED SEPTEMBER 22, 2006—DECIDED DECEMBER 19, 2006
____________
Before EASTERBROOK, Chief Judge, and KANNE and
SYKES, Circuit Judges.
KANNE, Circuit Judge. The defendant appeals a con-
viction for multiple counts of mail fraud, wire fraud, and
money laundering. The underlying fraud alleged in the
indictment was a failure to disclose a potential conflict of
interest while serving as an elected public servant in
Gary, Indiana. The defendant argues on appeal that the
district court erred by preventing the defense from pre-
senting its theory of the case to the jury and by committing
various sentencing errors. Because we find no error, we
affirm.
2 No. 06-1769
I. HISTORY
At its heart, this case is about a corrupt politician
who got caught with his hand in the cookie jar. Robert
White was an elected official in Gary, Indiana, serving on
the city’s Common Council. In the Summer of 2003 there
was a drowning in Gary at the beach where Lake Street
arrives at the Lake Michigan shore. Sometime shortly
thereafter, White met with Gary’s Superintendent of
Parks and the conversation turned to the need to con-
struct a fence to prevent children from unauthorized
access to the beach in that area. The drowning, along
with the apparent ease with which children were able to
walk from a nearby school to the shore, made the project
a prime candidate for an emergency contract—that is, a
contract that would not be subject to competitive bidding
or other inconvenient scrutiny.
Fortunately for the City of Gary, White knew just the
builder for the job: a small minority-owned company
called Raycor. Unfortunately for the City of Gary, this
was all a shell game. Unbeknownst to the city, Raycor
was actually owned and operated by White’s nephew.
The $30,000 emergency fence contract was let to Raycor.
The actual fence builder, a subcontractor from across the
border in Illinois, received a mere $5,000 of the contract
amount for doing all of the work. The remaining $25,000
of profit was routed through White’s nephew and eventu-
ally back into White’s bank account.
The government indicted White for numerous counts
of wire and mail fraud as well as money laundering. The
underlying conduct that the government alleged to be
fraudulent was White’s depriving the citizens of Gary of
his honest services. Specifically, the government alleged
that Indiana law required a public servant such as White
to either refrain from deriving a profit from contracts
with the City of Gary, or to disclose the details of the
No. 06-1769 3
conflict of interest. See Ind. Code § 35-44-1-3. The govern-
ment’s theory was that White owed a duty of honest
services to Gary, that he defrauded Gary of his honest
services, and that he used interstate wires, banks, and
mail to accomplish that fraud.
White had stipulated that he did not file a conflict of
interest disclosure. The defense centered around an
argument that White had not owed a duty of honest
services to the Park District, which was the actual gov-
ernment entity that let the contract. In an apparent
effort to insulate the Park District from partisan politics,
the department is distinct from the city in various ways.
Testimony at trial included the following examples: the
Park District is overseen by a bipartisan board of com-
missioners who are appointed by the mayor; the district
is a special taxing district; in theory it has the ability
to raise money either through taxes or by issuing bonds;
it sets all policies for Gary parks; and it has the author-
ity to hire and fire all Park District employees except for
the supervisor of parks.
To support this theory of the defense, White sought
a jury instruction that would have reprinted, verbatim,
Indiana’s definition of “governmental entity,” which
includes not only cities such as Gary but also special
taxing districts, boards, bureaus, commissions, commit-
tees, departments, divisions, military units, and others.
See Ind. Code § 35-41-1-12. The government objected to
the proposed jury instruction on the grounds that the
indictment only mentioned one government entity, the
City of Gary, and that the indictment alleged that White
had breached a duty to “the city of Gary and its citizens.”
In the government’s view, reading the entirety of the
Indiana Code might have confused the jury.
The district court declined to give the proposed jury
instruction but told defense counsel that he could still
4 No. 06-1769
make the argument that White’s role as Common Council-
man was sufficiently disconnected from the actual Park
District decision makers. During White’s closing argu-
ment he made that argument. However, when White’s
counsel then attempted to read the statute (the same
statute that the district court had just decided not to
include as a jury instruction) the court sustained a govern-
ment objection and prevented him from reciting it. White
now appeals the exclusion of his proposed jury instruc-
tion and the refusal to let him read the statute to the jury.
The jury returned a verdict of guilty on all counts, and
the court sentenced White to 63 months’ imprisonment
and restitution in the amount of $30,000. On appeal,
White argues that various sentencing enhancements
were either unconstitutional or improper. He argues that
the district court’s findings of a leadership role in the
crime, obstruction of justice, and an amount of loss in
excess of $10,000 were made in violation of the Sixth
Amendment. He argues that a sentencing enhancement
for being an elected public official was an error.
II. ANALYSIS
A. The Disconnect Argument
We review jury instructions as a whole to determine
whether they fairly and adequately represent the issues
to the jury. See United States v. Alhalabi, 443 F.3d 605,
612 (7th Cir. 2006). We review a district court’s decision
to not instruct the jury on a theory of defense de novo.
United States v. Hendricks, 319 F.3d 993, 1005 (7th Cir.
2003). A defendant is entitled to an instruction on his
theory of the defense if four conditions are met. Id. at
1005-06. Only two of those four conditions are relevant
here: the instruction must reflect a theory that is sup-
ported by the evidence and failing to include the instruc-
No. 06-1769 5
tion must deny the defendant a fair trial. Id. at 1006. As
we set out below, neither of these two prerequisites are
met, and the failure to include White’s proffered instruc-
tion was not an error.
Under Indiana’s conflict of interest laws, it is a felony
if a “public servant . . . knowingly or intentionally: (1) has
a pecuniary interest in; or (2) derives a profit from; a
contract or purchase connected with an action by the
government entity served by the public servant.” Ind.
Code § 35-44-1-3. A government servant can escape
this by filing a conflict of interest disclosure. Ind. Code
§ 35-44-1-3(c). There is no dispute between the parties that
White was a public servant of the City of Gary within the
meaning of the statute. Nor is there any dispute that the
City of Gary is a government entity. For that matter, there
is no dispute on appeal that he had a pecuniary interest
in or derived a profit from the contract.
The only significant dispute is whether the contract
was “connected with an action by the governmental entity
served by” White. It is White’s theory of the case that
the Park District is a separate governmental entity from
the City of Gary and that the contract in question was
between Raycor and the Park District—not between
Raycor and the City of Gary. To that end, he wanted the
jury instructions to include the entire definition of “gov-
ernment entity” so that the jury would be informed that
the Park District is also a government entity.
At the outset, we should note that we are dubious that
the rote recitation of a statute can be construed as a
“theory of defense” under Hendricks. Assuming for the
moment that cutting and pasting the statute would have
constituted a theory, White’s argument is still wide of the
mark. It is logically flawed because it presupposes that a
contract can only be “connected to” one government
entity—that by being connected to the Park District the
6 No. 06-1769
contract could not possibly have been connected to the
City of Gary as a whole. There is no doubt that the fence
contract in question was connected to the Park District;
nor is there a dispute that White was not a public servant
of the Park District. But neither of those facts is relevant
to whether the contract was also connected to the City
of Gary. This connection to the City of Gary was the only
connection alleged in the indictment. In this sense, the
jury instruction that White offered, even if it were con-
strued as a theory, does not reflect a theory that has
any evidentiary support because it is entirely non-respon-
sive to the conduct that was alleged in the indictment.
White also fails to demonstrate how the exclusion of the
instruction resulted in a denial of a fair trial. White was
free to base his defense on the argument that there were
numerous ways that the Park District and the Raycor
contract were independent of the City of Gary. The district
court did not prevent him from making any of those
arguments. Unfortunately for White, the government
also provided evidence that would allow a jury to find
that the Raycor contract was connected to the City of
Gary. All of that evidence was relevant to the question of
whether White defrauded the City of Gary of his honest
services. What would not have been relevant would have
been to instruct the jury on any of a number of other
government entities that were not defrauded by White.
Given the conduct alleged in the indictment and the
issues that were contended between the parties, we be-
lieve that the district court did not improperly exclude
the proffered jury instruction because it would not have
reflected a theory that was supported by the other facts
and the law and because the court granted White the
latitude to make his argument to the jury orally. The
instructions as a whole fairly and adequately repre-
sented the issues to the jury. Therefore, excluding White’s
proposed jury instruction was not a reversible error.
No. 06-1769 7
We turn then to the district court’s decision to prevent
White’s counsel from reading the entire Indiana statute
regarding government entities to the jury. The trial
judge has the “discretion to limit argument over time
consuming peripheral issues in the interests of judicial
economy and reducing juror confusion.” United States v.
Mahone, 537 F.2d 922, 928 (7th Cir. 1976). Nevertheless,
“exercising tight control over the argument is undesir-
able when it precludes counsel from raising a significant
issue.” Id. The question is whether the trial court abused
its discretion in deciding to prevent the recitation of the
statute to the jury.
“It is a basic premise of our legal system that juries are
the triers of fact only; it is for the judge, not the jury, to
interpret the law.” United States v. Tokash, 282 F.3d 962,
968 (7th Cir. 2002). Jury instructions are the means that
the court uses to inform the jury of the law that is rele-
vant to the case. Although there are some circumstances
when reading the law, either statute or case law, might
be properly permitted by the court, there are few instances
where a party is entitled to read law to the jury. See
generally V. Woerner, Counsel’s Right in Criminal Prosecu-
tion to Argue Law or to Read Lawbooks to the Jury, 67
A.L.R. 2d 245; Jacob Stein, Closing Arguments § 1:69 (2d
ed. 2006). Although the selective use of statutes can be a
permissible aspect of argument, particularly when a
party might highlight certain parts of the instruction
that the jury will shortly receive from the court in written
form, a party is not entitled to read portions of the law
that the trial court has already determined to be irrele-
vant to the facts of the case at hand. See Wayne R.
LaFave, et al., 5 Criminal Procedure § 24.7(e) (2d ed. 1999)
(“More frequently, successful challenges to prosecutorial
argument have involved references (often accurate) to
aspects of the law that are beyond the elements con-
sidered in the judge’s charge. Indeed, those references
8 No. 06-1769
usually are to matters on which a judge would refuse to
charge a jury if requested because they detract from its
responsibility to decide the issue before it.”).
Such was the case here. The district court had already
decided to exclude the full extent of the Indiana statute
from the written jury instructions. As we noted above, that
decision was not an error. It would make little sense to
exclude a statute as potentially confusing for the jury
when provided in written form, but then allow that same
statute to be read to the jury when the potential for
confusion and misinterpretation is even greater. The court
properly provided the jury with the necessary interpreta-
tion of the law as it applied to the specific charges con-
tained in the indictment. White was not denied the
opportunity to tell the jury that the Park District was
also a government entity—although as we noted above
that fact was logically insufficient to escape criminal
liability. He was also free to make all manner of argu-
ments that the contract was not connected to the City
of Gary. But those arguments were met with other evi-
dence from the government. Therefore, we believe that
it was not an abuse of discretion to limit defense coun-
sel from reciting the statute during closing argument.
B. The Sentencing Enhancements
White also appeals his sentence. He argues that three
of the sentencing enhancements are unconstitutional and
that one enhancement was improper. We review argu-
ments on the constitutionality of the sentence de novo.
United States v. Peters, 462 F.3d 716, 717-18 (7th Cir.
2006). In the aftermath of United States v. Booker, 543
U.S. 220 (2005), we review allegations of non-constitu-
tional sentencing errors for reasonableness. United States
v. Cooper, 461 F.3d 850, 855 (7th Cir. 2006). If a district
court considers the factors of 18 U.S.C § 3553(a) and then
No. 06-1769 9
imposes a sentence within the correctly calculated ad-
visory range of the Sentencing Guidelines, the sentence
is entitled to a rebuttable presumption of reasonableness
on appeal. United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005).
The crimes for which White was convicted carry a
statutory maximum of thirty years’ imprisonment on
Count 1 and twenty years’ on Counts 2 through 9. White
had no criminal history. The base offense level for fraud
by a public official is 14. U.S.S.G. § 2C1.1. After adjusting
for specific offense characteristics (plus eight), the defen-
dant’s role in the offense (plus two), and obstruction of
justice (plus two), the district court concluded that
White’s total offense level was 26. The advisory range for
a crime with an offense level of 26 and a criminal history
category of I is 63 to 78 months. The court then sen-
tenced White to 63 months’ imprisonment.
White argues on appeal that this sentence is uncon-
stitutional under the Sixth Amendment as interpreted
by Blakely v. Washington, 542 U.S. 296 (2004) and
Apprendi v. New Jersey, 530 U.S. 466 (2000). He bases this
claim on the argument that the adjustments that brought
him from 14 to 26 were derived from enhancements
that the district court found by a preponderance of the
evidence and not found beyond a reasonable doubt by a
jury.
This is a frivolous argument and it ignores the effect
that Booker had on federal sentencing since Blakely. In the
aftermath of Booker, the sentencing guidelines are con-
strued as advisory, not mandatory. Booker, 543 U.S. at
259. We have repeatedly held, as the district court at-
tempted to clarify for defense counsel at the sentencing
hearing, that sentencing enhancements need not be
found by a jury beyond a reasonable doubt because they
10 No. 06-1769
no longer alter the statutory maximum.1 Because the
sentencing factors that he challenges did not increase the
sentence beyond the statutory maximum, it was not
unconstitutional for the district court to apply them.
Accordingly, the district court did not commit any error
when it adjusted White’s sentence for facts that had not
been found by a jury.
White also argues that the four-level enhancement for
committing the crime while being an elected public official
was an error because he was not an elected official of the
Park District. This argument mirrors the “disconnect”
argument that we considered above, and it fails for the
same reasons. The enhancement is imposed if the defen-
dant is “an elected public official.” U.S.S.G. § 2C1.1(b)(3).
The defendant stipulated that he was an elected official
of the City of Gary. The jury found him guilty of using
the wires and mail to defraud the City of Gary. It was not
an error for the district court to enhance the sentence
based on the fact that he was an elected public official.
The district court correctly calculated the advisory
Guidelines range and noted the effect that Booker had on
1
In the fifteen months that elapsed between the Supreme
Court’s decision in Booker and the date that the appellant filed
the brief on this appeal, this court had the occasion to consider
and explicitly reject this argument no less than four times. See,
e.g., United States v. LaShay, 417 F.3d 715 (7th Cir. 2005)
(decided three months before White went to trial); United States
v. Bryant, 420 F.3d 652 (7th Cir. 2005) (decided two months
before White went to trial); United States v. Robinson, 435 F.3d
699 (7th Cir. 2006) (decided two months before White was
sentenced); United States v. Owens, 441 F.3d 486 (7th Cir. 2006)
(decided one month before the appellant filed his brief with this
court). This is not inclusive of the number of opinions we have
published that implicitly recognized this point of law or the
dozens of unpublished orders during the same period that
reiterated exactly this same point.
No. 06-1769 11
its reasoning. The applicable sentencing range was 63 to
78 months. The court sentenced the defendant within
the range, and White has provided nothing on appeal to
rebut the presumption of reasonableness that a sentence
within the Guidelines is accorded. Accordingly, we will not
vacate the sentence.
C. The Appellant’s Brief before this Court
Having considered the merits of the appeal, we are left
with one remaining issue. Federal Rule of Appellate
Procedure 30 requires that the appellant must file an
appendix that contains “the relevant docket entries in the
proceeding below . . . the relevant portions of the plead-
ings, charge, findings, or opinion . . . the judgment, order,
or decision in question … [and] other parts of the record to
which the parties wish to direct the court’s attention.” Fed.
R. App. P. 30(a)(1). Our Circuit Rule 30 makes addi-
tional demands of the appellant. If the appellant chal-
lenges an oral ruling, such as sustaining the government’s
objection in this case, “the portion of the transcript
containing the judge’s rationale for that ruling must be
included in the appendix.” Cir. R. 30(b)(1). The appellant
is also required to include a “statement that all of the
materials required by parts (a) and (b) of this rule are
included.” Cir. R. 30(d).
The appellant in this case failed to accomplish any of the
above requirements. The appendix included in the appel-
lant’s brief contained a mere five pages of Indiana stat-
utes. There was no copy of the judgment being appealed.
There was no transcript of the rationale given by the
district court in the challenged oral decision. The appel-
lant’s counsel then compounded these errors by incor-
rectly certifying to this court that the appendix com-
plied with the procedural requirements.
12 No. 06-1769
The Federal Rule and our Circuit Rule are not created
for the purpose of imposing frivolous requirements on
attorneys who are already busy. The purpose of these
rules is to ensure that the court has “all necessary docu-
ments before it as it considers the parties’ arguments and
renders its decision.” Hill v. Porter Mem’l Hosp., 90 F.3d
220, 225-26 (7th Cir. 1996). The requirement embodied
in these rules “goes to the heart of this court’s
decision-making process.” Id. at 226. This is nothing new,
but we have become more insistent “on meticulous com-
pliance with rules sensibly designed to make appellate
briefs as valuable an aid to the decisional process as they
can be.” Id. (citations and quotations omitted). This court’s
workload increases dramatically if an appeal is trans-
formed into a scavenger hunt in search of a copy of the
judgment below or the transcript page where a chal-
lenged decision was explained by the district court.
We are not without remedies in this matter. In the past
we have dismissed the appeal. See Snipes v. Ill. Dep’t of
Corr., 291 F.3d 460 (7th Cir. 2002). We have refused to
consider issues that were not adequately addressed in the
briefs and appendices. See Bonds v. Coca-Cola Co., 806
F.2d 1324 (7th Cir. 1986). Some circuits have ordered
parties to resubmit their briefs with corrections. See
Alnajjar v. Ford Motor Co., 523 F.2d 6 (6th Cir. 1975). And
we have fined attorneys for their violations. See Hill, 90
F.3d at 226.
Ordering the appellant to resubmit the brief seems
counterproductive in this case. With some extra work we
have found the documents that were needed to reach a
decision on the merits. Meaningless re-submission of
documents would serve only to waste more time, albeit
the appellant’s counsel would be wasting time, not this
court. But this seems pointless. It seems likewise point-
less to dismiss the appeal or to judicially ignore those
No. 06-1769 13
portions of the appeal not supported by the appendix.
Having reached the merits, we would prefer to avoid the
appearance that the appeal was rejected over formalistic
rules, when in fact the appeal fails because it has no merit.
We are left then with the question of whether the court
should fine the appellant’s attorney for violating Rule 30.
In Hill we fined appellant’s counsel $1000 for failing to
comply with Rule 30. In accordance with the Hill line of
cases we will impose a fine of $1000 on counsel for White
unless they can show that such a fine would be inappropri-
ate under the circumstances of the case.
III. CONCLUSION
For the foregoing reasons, the judgment and sentence of
the district court are AFFIRMED. Furthermore, in accor-
dance with Federal Rule of Appellate Procedure 46(c)
appellant’s counsel of record, are ORDERED to show cause,
within 21 days of the date of this opinion, why they should
not jointly be sanctioned by this court in the amount of
$1000 for failure to comply with Federal Rule of Appellate
Procedure 30 and Circuit Rule 30.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-19-06