United States v. Christ, Matthew ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1634
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW CHRIST,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1093—John W. Darrah, Judge.
____________
ARGUED SEPTEMBER 26, 2007—DECIDED JANUARY 28, 2008
____________
Before MANION, EVANS, and SYKES, Circuit Judges.
MANION, Circuit Judge. From 1999 until 2001, Matthew
Christ served as a consular officer at the American Em-
bassy in Vilnius, Lithuania. A jury convicted Christ of one
count of conspiring to commit visa fraud, finding that he
used that position to fraudulently facilitate the issuance of
visas to certain Lithuanian citizens. Christ appeals, argu-
ing that there was insufficient evidence to support his
conviction, and that the district court abused its discre-
tion in admitting certain evidence and testimony. Christ
asserts that the district court further erred by failing to
give a missing witness instruction, and that it relied on
2 No. 07-1634
improper facts in enhancing his offense level at sen-
tencing, thereby rendering his sentence unreasonable. We
affirm Christ’s conviction and sentence.
I.
On March 23, 2006, Matthew Christ was charged in a
Fourth Superseding Indictment (“Indictment”) with two
counts of conspiracy to commit visa fraud in violation of
18 U.S.C. §§ 371 and 1546 and one count of bribery in
violation of 18 U.S.C. § 201(b)(2)(A). Prior to trial, the
government dismissed one of the visa fraud counts. The
case proceeded to trial on October 23, 2006, and the jury
was presented with evidence of the following. Christ is a
graduate of the United States Military Academy in West
Point, New York. After more than a decade of active
service in the United States Army, he became a Foreign
Service Officer with the Department of State and was
assigned to the American Embassy in Vilnius, Lithuania.
Christ held this position from August 1999 until July 2001,
during which time he was authorized to adjudicate visa
applications and submit favorable referrals. A visa is a
document issued to a non-citizen signifying that the
holder was screened by a consular officer who deter-
mined that there is no reason to deny travel to the United
States. In making this determination, consular officers
consider the applicant’s credibility and criminal back-
ground, as well as indicia that the applicant will return
from the United States after his visit. While an interview
is normally required as part of this review process, rules
in place during the period in question allowed consular
officers to waive the interview for individual applicants
or categories of applicants considered low risks for visa
No. 07-1634 3
violations.1 The interview requirement could also be
waived if an application was accompanied by a docu-
ment known as a Class A referral (“referral”). A referral is
a form submitted by a consular officer stating that the
applicant is well and favorably known to the officer, and
that expeditious processing of the application is in the
national interest of the United States. According to a
State Department memo introduced at trial, referrals are
appropriately submitted on behalf of influential persons
in government, business, science, and academia, or other
persons able to enhance diplomatic relations. After this
review process, the visa application is adjudicated, mean-
ing that the final decision to grant or deny the visa is made.
The government charged that Christ engaged in the visa
fraud conspiracy with four Lithuanians, Aivaras Grigaitis
(“Aivaras”), his brother Robertas Grigaitis (“Robertas”),
Mindaugas Masiliunas (“Masiliunas”), and Valdas Stauga
(“Stauga”). As a hobby, Aivaras restored antique motor-
cycles, which he then sold. After placing a newspaper
advertisement for the sale of a restored motorcycle, Aivaras
was contacted by Christ, who is an admirer and collector
of antique motorcycles. After meeting at Aivaras’s shop,
Christ purchased the advertised motorcycle, and Aivaras
delivered it to his home. During this transaction, Aivaras
learned of Christ’s employment at the Embassy. Aivaras
and his brother Robertas desired to live in the United States
because of the poor economic situation in Lithuania at
the time, and the two speculated that Christ’s employ-
1
Karen Christensen, a division chief with the Bureau of
Consular Affairs at the State Department, testified that follow-
ing the terrorist attacks of September 11, 2001, rule changes
were effected requiring that every visa applicant, without
exception, be interviewed.
4 No. 07-1634
ment at the Embassy might combine with his interest in
motorcycles to make him a helpful resource in obtaining
visas. Subsequently, Aivaras invited Christ back to his
shop to see another motorcycle he had restored. After
Christ expressed interest, Aivaras offered it to him in
exchange for help in obtaining visas. Aivaras testified that
Christ agreed to the offer. Christ told Aivaras that in
order to apply for visas he and Robertas needed pass-
ports, photos, and application fees. When Aivaras asked
if they should bring these items to the Embassy, Christ
responded that he would instead come to Aivaras’s shop
after business hours.
Christ arrived at Aivaras’s shop on the designated
evening with blank applications, which the Grigaitis
brothers then completed in his presence. On Christ’s
advice, Robertas stated on his application that he in-
tended to travel to the United States for tourism, al-
though he testified at trial that he also intended to
find employment here. Because Aivaras’s passport was
missing, he was unable to complete an application in his
name. He instead completed one for Masiliunas, a friend
of his, stating on Christ’s advice that Masiliunas’s purpose
for traveling to the United States was tourism. Upon com-
pleting the application, Aivaras signed it in Masiliunas’s
name. Christ took the applications back to the Embassy,
and adjudicated Robertas’s application in November 1999,
and Masiliunas’s application in December 1999. Ruta
Kundrotiene, a visa assistant at the Lithuanian Embassy
responsible for processing applications, testified that
each man was issued a ten-year visa allowing periodic
travel to the United States.
When Christ delivered these visas to Aivaras, Aivaras
requested additional assistance in obtaining a visa for
No. 07-1634 5
himself, as well as Stauga, his neighbor. Christ agreed and
subsequently returned to Aivaras’s shop with blank
applications. Aivaras completed his application, as well
as Stauga’s, in Christ’s presence. Instead of personally
adjudicating this second pair of visas, Christ submitted
each application with a referral. While the government
did not present the referral forms themselves at trial,
there was evidence of Christ’s conduct in the form of a
handwritten notation on each application stating, “Re-
ferred by Matt Christ.” In March 2000, Aivaras and Stauga
were issued visas of the same sort previously issued
to Robertas and Masiliunas. Kundrotiene testified that
Christ’s referrals allowed Aivaras and Stauga to receive
visas without being interviewed. Aivaras testified that
after the four visas were issued, he delivered the agreed-
upon motorcycle to Christ’s house, and Christ never
paid, nor offered to pay, for it.
In November 2000, Aivaras again contacted Christ and
requested his assistance in obtaining visas for Robertas’s
wife and two children. Aivaras told Christ that he was
restoring additional motorcycles he could offer Christ in
exchange for his help. Aivaras testified that Christ agreed,
and Robertas subsequently contacted him. The two ar-
ranged to meet at a gas station, and Robertas arrived
with completed applications he had obtained for his
family, as well as their passports. Christ submitted these
applications in February 2001 with referrals. The referral
forms, which were introduced at trial, stated that the
applicants were well and favorably known to Christ and
that expeditious processing of the applications was in the
national interest of the United States. Robertas testified,
however, that no one in his family had ever met Christ.
Notwithstanding Christ’s referrals, the visa assistant
6 No. 07-1634
processing the applications determined that Robertas’s
family should be interviewed because Robertas’s visa
had been so recently issued. The family was directed to
appear with, among other documents, Robertas’s pass-
port, which would allow consular officers to determine
whether he had traveled to the United States, and if so,
whether he had returned to Lithuania. When Robertas’s
family failed to arrive for their interview with the re-
quested documents, their applications were denied. These
events surrounding the family applications resulted in
an investigation of visa fraud at the Vilnius Embassy,
leading ultimately to Christ’s indictment and arrest.
In addition to the above, the jury heard testimony
regarding Christ’s financial transactions and motorcycle
interests around the time he received the second motor-
cycle from Aivaras. Roland Slabon, president of a group
known as Vintage BMW Motorcycle Owners, testified
that Christ contacted him in the Fall of 1999 inquiring
about certain types of antique BMW motorcycles, and
expressing interest in purchasing some that he had
come across in local markets. Additionally, Charles
Christ, the defendant’s father, testified that he had a
telephone conversation with his son in February 2000
during which Christ stated his intent to purchase a BMW
motorcycle for $1,000 in the coming weeks. Finally, an
auditor with the United States Attorney’s Office testified
regarding checks cashed by Christ at the Lithuanian
Embassy between August 1, 1999, and September 28, 2001.
While Christ cashed checks for amounts ranging from
$200.00 to $630.00 during that period, the jury’s atten-
tion was directed to two separate checks each for $500.00
cashed three days apart in early February 2000. The de-
fense argued in closing that these checks corroborated
No. 07-1634 7
the testimony of Charles Christ, and that the testimony,
taken as a whole, showed that Christ did not receive the
second motorcycle as a bribe from Aivaras, but rather
purchased it. The defense further argued that if the jury
found that Christ purchased that motorcycle, it followed
that he had no motive to engage in a conspiracy to com-
mit visa fraud, and the evidence was therefore insuf-
ficient to convict him of that charge.
On November 1, 2006, the jury returned a verdict of
guilty on the visa fraud charge, and not guilty on the
bribery charge. Thereafter, Christ moved for a judgment
of acquittal, or alternatively, for a new trial. In arguing
for a judgment of acquittal, Christ argued that insuf-
ficient evidence was presented to establish his guilt be-
yond a reasonable doubt. His motion for a new trial was
also based on the insufficiency of the evidence, as well as
his argument that the district court’s admission of cer-
tain evidence and failure to properly instruct the jury
deprived him of a fair trial. Specifically, Christ argued
that the district court should not have admitted the evi-
dence involving Robertas’s family because it amounted to
evidence of an uncharged conspiracy not intricately
intertwined with, or undertaken in furtherance of, the
charged conspiracy. Next, Christ argued that his trial
was unfair because the referral notations on Aivaras’s
and Stauga’s applications were inadmissible hearsay.
Christ also argued that the court should not have allowed
the government to question Roland Slabon regarding
Christ’s payment to him of witness fees. Finally, Christ
argued that his trial was rendered unfair by the district
court’s failure to give a missing witness instruction after
the government failed to call certain consular officials.
Christ’s motion was denied by the district court on Febru-
8 No. 07-1634
ary 21, 2007. The district court proceeded to sentencing
on March 1, 2007, at which point it determined Christ’s
Guideline range to be twenty-one to twenty-seven months.
This range was arrived at, in part, by including the
family visa applications in Christ’s relevant conduct.
Christ was sentenced to twenty-four months in prison. He
now appeals his conviction based upon the same grounds
as his post-trial motion. Additionally, he argues that his
sentence was unreasonable because the district court had
no basis to find that Christ’s crime involved more than
the four visas procured for the co-conspirators.
II.
We begin with Christ’s evidentiary challenges. First,
Christ argues that the district court erred in admitting the
evidence related to the family visa applications that
were rejected when Robertas’s family failed to show up
for their interview with the requested documents. He
asserts that the evidence was irrelevant, and not under-
taken in furtherance of, or intricately related to, the
charged conspiracy. The district court admitted the evi-
dence primarily under the theory that it was intricately
related to the conspiracy, and therefore admissible to
explain fully the circumstances related to the charged
crime. See United States v. Thompson, 286 F.3d 950, 968 (7th
Cir. 2002) (“Evidence that is so blended or connected that
it incidentally involves, explains the circumstances sur-
rounding, or tends to prove any element of, the charged
crime is excluded from Federal Rule of Evidence 404(b)’s
prohibition against other acts evidence admitted to show
action in conformity therewith and, therefore, may be
admitted at trial.”) (internal quotation omitted). Addition-
ally, the district court noted that its finding was sup-
No. 07-1634 9
ported by the fact that the conduct surrounding the
family applications was charged in the Indictment, and
alleged to have occurred in furtherance of the charged
conspiracy. We review the district court’s decision to ad-
mit this evidence for abuse of discretion. United States v.
Hale, 448 F.3d 971, 985 (7th Cir. 2006).
Christ argues that the district court abused its discretion
in admitting this evidence because the charged conspiracy
only involved Christ’s procurement of visas for the four
co-conspirators. Specifically, Christ relies on paragraph 4
of the Indictment which charged:
It was part of the conspiracy that defendant CHRIST,
together with Aivaras Grigaitis, Robertas G.,
Mindaugas M., and Valdas S., gave and caused to be
given something of value to CHRIST to induce him to
commit and omit acts in violation of his official duties
as a Foreign Service Officer for the Department of
State and to facilitate the commission of other crim-
inal offenses, such as immigration fraud and iden-
tification document fraud, in that they agreed to
provide a vintage BMW motorcycle directly to
CHRIST, to cause the issuance of non-immigrant visas to
the United States to Grigaitis, Robertas G., Mindaugas M.,
and Valdas S.
(Emphasis added.) While Christ argues that this language,
and particularly the emphasized phrase, establishes that
the charged conspiracy consisted only of the conduct
surrounding the issuance of visas to the four co-conspira-
tors, we find that his interpretation relies on an overly
narrow reading of this paragraph resulting from its being
taken out of context. By alleging that part of Christ’s role
in the conspiracy was to procure visas for the four co-
conspirators in exchange for a motorcycle, the govern-
10 No. 07-1634
ment in no way limited the charged conspiracy to that
conduct.
That the charges are broader than Christ argues is
plainly seen when the Indictment is considered in its
entirety. First, paragraph 3 of the Indictment charged that
Christ engaged in a conspiracy that continued “to at least
February 8, 2001.” Aivaras’s and Stauga’s visas were the
second two of the co-conspirator visas issued, and such
issuance occurred in March 2000. The family applica-
tions, however, were submitted with Christ’s referrals
on February 8, 2001, making clear that the government
intended to include that conduct in the charges set forth in
the Indictment. Next, the Indictment charged that Christ
and the four co-conspirators entered into an agreement and
engaged in conduct to “use, obtain, and receive . . . non-
immigrant visas, knowing them to have been procured
by means of materially false claims and statements.”
This language does not limit the agreement and conduct
of Christ and his co-conspirators to the procurement of
the co-conspirators’ visas, but alleges generally that they
were acting to obtain visas by fraudulent means. In fact,
when the Indictment listed the overt acts undertaken in
furtherance of the conspiracy, no less than five paragraphs
were devoted to setting forth the conduct surrounding
the family applications. The district court did not need to
resort to an “intricately related” analysis because, as the
government argued to the district court before trial,
“[n]othing could be more intricately related and inter-
twined than an allegation that is brought as a charge by
the government.” See United States v. Elizondo, 920 F.2d
1308, 1319 (7th Cir. 1990) (noting that “[e]vidence of overt
acts which occurred after a conspiracy was formed and
which were related to the object of the conspiracy is
No. 07-1634 11
admissible regardless of whether [they] are charged in the
indictment.”). Here, Christ’s conduct regarding the
family visas was charged in the Indictment. Based on
these circumstances, we conclude that the district court
did not abuse its discretion in admitting evidence of the
family visa applications.
Christ next argues that the district court abused its
discretion in admitting over his hearsay objection the
applications of Aivaras and Stauga, which contained
handwritten notations indicating that the applicants
were “Referred by Matt Christ.” Visa Assistant Ruta
Kundrotiene testified that these notations were made by
Foreign Service Officer and then Chief of the Consular
Section, Linda Eichblatt. Unlike the applications of
Robertas’s family, which contained similar notations but
were presented at trial with attached referral forms exe-
cuted by Christ, Aivaras’s and Stauga’s applications had
no accompanying documentation verifying Christ’s refer-
rals. This absence, argues Christ, makes the reference
notation inherently unreliable because there was no
evidence establishing whether, or how, Eichblatt re-
ceived that information. The government argues that the
documents were properly admitted as business records
because they were authenticated by Kundrotiene. Specifi-
cally, the government relies on Kundrotiene’s testimony
that she recognized Eichblatt’s handwriting, that in the
normal course of business Eichblatt recorded referrals
on the application contemporaneous with her review of
the same, and that it was the normal course of business
at the Embassy to discard a referral once noted. As with
the family application evidence, we review the district
court’s admission of the applications for abuse of dis-
cretion. Hale, 448 F.3d at 985.
12 No. 07-1634
While the admission of business records as an exception
to the hearsay rule is well established, see Fed. R. Evid.
803(6), “statements made by third parties in an otherwise
admissible business record cannot properly be admitted
for their truth unless they can be shown independently to
fall within a recognized hearsay exception.” Woods v. City
of Chicago, 234 F.3d 979, 986 (7th Cir. 2000). Accordingly,
the referral notations on Aivaras’s and Stauga’s applica-
tions must have their own independent grounds for
admissibility. The parties agree that the district court
admitted the notations pursuant to the business records
exception, which requires the government to “lay a proper
foundation establishing that the documents produced
were records kept in the course of regularly-conducted
activity and that ‘it was the regular practice of that busi-
ness to make [the document] as shown by the testimony of
the custodian or other qualified witness.’ ” United States v.
Lawrence, 934 F.2d 868, 870 (7th Cir. 1991) (quoting Fed. R.
Civ. P. 803(6) (emphasis added)). This exception, there-
fore, “clearly does not require that the witness have
personal knowledge of the entries in the records. The
witness need only have knowledge of the procedures
under which the records were created.” United States v.
Wables, 731 F.2d 440, 449 (7th Cir. 1984).
Kundrotiene testified that as a Visa Assistant, she
received applications, entered the information contained
therein into the Embassy’s data system, and then passed
the applications on for adjudication. Once an officer such
as Eichblatt received the application for processing,
Kundrotiene testified that the presence of any referral was
noted on the application, and the referral was then dis-
carded. Kundrotiene stated that an accompanying refer-
ral, signed by a qualified officer, was the only reason
No. 07-1634 13
such a notation was made, and that it was against policy
for an officer to make this notation without the requisite
referral. Kundrotiene stated she had no specific memory
of the notations being made on Aivaras’s and Stauga’s
applications. However, she stated she was confident
testifying to the process by which such notations were
made because of what she knew Embassy policy to be,
and because she worked in close physical proximity to
Eichblatt, which allowed Kundrotiene to observe her
practices. Finally, Kundrotiene testified that she was able
to identify the handwritten notations as being made by
Eichblatt because she recognized Eichblatt’s handwriting.
In addition to Kundrotiene’s testimony, the government
presented the three applications of Robertas’s family
members. These applications, which were introduced
with the referrals signed by Christ, had notations similar
to those on Aivaras’s and Stauga’s applications, even
though the latter were introduced at trial without signed
referrals. This evidence, taken as a whole, provided the
district court with sufficient grounds upon which to find
that Kundrotiene exhibited knowledge of the practices
and procedures that resulted in the referral notations
being made on Aivaras’s and Stauga’s applications.
Kundrotiene laid the foundation establishing the reli-
ability of the notations, and that reliability was con-
firmed by similar notations present on the applications of
Robertas’s family. Accordingly, we conclude that the
district court did not abuse its discretion in admitting
the applications of Aivaras and Stauga in their entirety.
Having concluded that the district court did not err by
admitting the evidence above, we turn to Christ’s argu-
ment that the government presented insufficient evid-
ence to support his conviction, and that the district court
14 No. 07-1634
should have granted him a judgment of acquittal. We
review the district court’s decision denying a judgment of
acquittal de novo. United States v. Jones, 222 F.3d 349, 351
(7th Cir. 2000) (citation omitted). When considering a
challenge of this sort, we “defer to the credibility determi-
nations made by the jury, and reverse only when no
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt.” United States v. Dumeisi,
424 F.3d 566, 581 (7th Cir. 2005). In asserting insufficiency
of the evidence, Christ “carries a heavy burden” because
“[w]e view the evidence in the light most favorable to
the prosecution.” United States v. Leahy, 464 F.3d 773, 794
(7th Cir. 2006) (citation omitted). Christ was convicted of
committing visa fraud in violation of 18 U.S.C. §§ 371 and
1546. Accordingly, we consider whether the government
presented sufficient evidence that he conspired to obtain
non-immigrant visas, acting willfully, and with knowl-
edge that the visas were obtained by a false statement,
or otherwise procured by fraud. When proof of a conspir-
acy is being considered, the government need not have
shown evidence of a formal agreement. United States v.
Carraway, 108 F.3d 745, 750 (7th Cir. 1997). Rather, “the
evidence must show both the existence of the conspiracy
and that the defendant knowingly participated in it.”
United States v. Hightower, 96 F.3d 211, 214 (7th Cir. 1996)
(citation omitted).
We conclude that the government presented evidence
sufficient for a rational jury to find beyond a reasonable
doubt that Christ engaged in a conspiracy to commit
visa fraud. First, the Grigaitis brothers testified that
Christ told them to complete the applications by stating
that the purpose of visiting the United States was tourism.
The jury heard testimony, however, that the men intended
No. 07-1634 15
to find work upon their arrival. Christ argues that this
evidence does not show intent on his part to commit
visa fraud because there was no evidence showing that
he knew his advice to be untrue. While that may be the
case, there also was no evidence showing that Christ had
any reason to think that the co-conspirators were, in fact,
traveling to the United States for tourism. Testimony
that Christ provided any reason to the Grigaitis brothers,
especially when the evidence showed that he had a rela-
tively unfamiliar relationship with them, was circum-
stantial evidence that Christ conspired to submit false
statements in an attempt to procure visas.
Next, Aivaras testified that he filled out an application
for himself, for Masiliunas, and for Stauga in Christ’s
presence. The evidence showed that Christ then adjudi-
cated or submitted referrals on those applications. There
was no evidence suggesting that Masiliunas or Stauga
filled out their own applications. The strongest attack the
defense mounted against Aivaras’s testimony on this point
was when defense counsel argued during closing that,
based upon his observation, the applications were not
written by the same person. While counsel invited the
jury to draw the same conclusion, we view all of the
evidence in the light most favorable to the government,
Leahy, 464 F.3d at 794, and conclude that a rational jury
could have accepted Aivaras’s testimony that Christ
submitted the three applications knowing them to have
been completed by the same person. A reasonable infer-
ence drawn from this evidence is that Christ was working
with his co-conspirators to procure visas by fraud. See
Carraway, 108 F.3d at 750 (holding that a “jury properly
may find an agreement to conspire based upon circum-
stantial evidence and reasonable inferences drawn there-
16 No. 07-1634
from concerning the relationship of the parties, their
overt acts, and the totality of their conduct.”).
The jury also heard evidence that Christ submitted
referrals with the applications of Robertas’s family mem-
bers stating that they were well and favorably known to
him, and that expeditious processing of their applica-
tions was in the United States’ national interest. As noted
above, however, Robertas testified that Christ had never
met any of his family members. Accordingly, evidence
that Christ submitted referrals on their behalf amounted
to strong evidence supporting the jury’s finding re-
garding his guilt. Additionally, the testimony and evidence
at trial consistently affirmed that referrals were to be
extended, if at all, to persons of a stature able to enhance
diplomatic relations, such as government officials, busi-
nessmen, and scientists. Christ, however, submitted
referrals on behalf of Robertas’s family, Stauga, and
Aivaras. With the exception of Aivaras, Christ had not
met any of these people, and there was no indication
that any of them fit the description of a suitable referral
recipient. This deviation from the referral policy pro-
vided the jury with additional evidence that Christ was
involved in a conspiracy to procure visas by fraudulent
means.
Although all of the evidence set forth above provided a
basis from which the jury could find that the govern-
ment met its burden in proving Christ’s guilt beyond a
reasonable doubt, Christ argues that his acquittal on the
bribery charge served to undercut this proof to such a
degree that it could not sustain his conviction. The con-
viction for visa fraud combined with the acquittal on
bribery, Christ asserts, amounts to a finding that he
engaged in the conspiracy, and used his hard-earned
No. 07-1634 17
position of influence at an American Embassy, for no
return benefit to himself. While holding a certain prac-
tical appeal by calling into question Christ’s motive,
this argument is of little legal import. There is no require-
ment under either 18 U.S.C. §§ 371 or 1546 that the gov-
ernment prove that Christ received anything of value in
exchange for his participation in the conspiracy. See, e.g.,
United States v. Soy, 545 F.3d 766, 768 (7th Cir. 2006). The
jury was free to weigh any lack of motive when it consid-
ered whether Christ engaged in visa fraud. Even though
they did not believe that Christ received the second
motorcycle as a bribe, the jury members were satisfied
that the substantial evidence presented by the govern-
ment established his guilt for conspiracy to commit visa
fraud, and we will “neither reweigh the evidence nor
substitute our judgment of the facts for that of the
factfinder.” United States v. LaShay, 417 F.3d 715, 718 (7th
Cir. 2005) (citation omitted). Furthermore, contrary to
Christ’s assertion, there was evidence in the record that
could have answered the question of why Christ en-
gaged in the criminal conduct for which he was con-
victed. It is undisputed, for example, that Christ was a
collector of antique motorcycles. Perhaps he viewed the
visa scheme as a means of developing relationships
with people who consistently dealt with such motor-
cycles. Additionally, there was testimony that fraud was
widespread at the Embassy in Vilnius. Perhaps the vol-
ume of fraudulent applications convinced Christ that he
could cultivate these relationships by adjudicating fraudu-
lent applications and submitting fraudulent referrals
with a reduced risk of detection. While the jury members
themselves may have been unsure as to why Christ en-
gaged in this conduct, questions regarding motive likely
became less and less important as the evidence mounted
18 No. 07-1634
that Christ engaged in this conduct. Accordingly, we are
confident that the evidence presented was sufficient to
support the jury’s verdict beyond a reasonable doubt and
conclude that the conviction was supported by sufficient
evidence. See Leahy, 464 F.3d at 796.
In addition to the issues already considered, Christ
argues that he was entitled to a missing witness jury in-
struction because the government failed to call Eichblatt
and another Foreign Service Officer, Sean Wiswesser, as
witnesses at trial. Eichblatt formulated the Embassy’s
referral policies, and both Eichblatt and Wiswesser had
knowledge of those policies. Additionally, Eichblatt
adjudicated Aivaras’s and Stauga’s applications, and
Wiswesser approved the issuance of visas for Robertas’s
family. Christ asserts, as he did at trial, that the testimony
of Eichblatt and Wiswesser would have illuminated for
the jury not only the referral procedure in place at the
Vilnius Embassy, but also the sufficiency of the specific
referrals upon which these officers relied in approving
the applications in question. In denying Christ’s request
for a missing witness instruction, the district court found
that ample testimony regarding the Embassy’s referral
policies had been presented, and that Eichblatt and
Wiswesser were available for Christ to call as witnesses if
he so chose. For a missing witness instruction to be given,
a defendant must show (1) that the absent witness was
peculiarly within the government’s power to produce, and
(2) that the testimony of the witness would elucidate
issues in the case without being cumulative in nature.
United States v. Romo, 914 F.2d 889, 893 (7th Cir. 1990). A
witness is peculiarly within the government’s power
to produce when the witness is physically available only
to the government, or where the witness’s relationship
No. 07-1634 19
with the government makes his testimony, in pragmatic
terms, available only to the government. Id. at 893-894. The
district court has broad discretion in deciding whether
to give a missing witness instruction, United States v.
Grant, 396 F.3d 906, 910 (7th Cir. 2005), and we will dis-
turb that decision only where serious error has occurred.
United States v. Addo, 989 F2d 238, 242 (7th Cir. 1993).
Regarding the unavailability of Eichblatt and Wiswesser,
Christ argued that their employment with the State De-
partment made them pragmatically unavailable to the
defense. Employment by a party has been found to be a
basis for pragmatic unavailability because “there is likeli-
hood of bias on the part of the person not called as a
witness in favor of one party . . . .” Yumich v. Cotter, 452
F.2d 59, 64 (7th Cir. 1971). In Yumich, this court concluded
that the district court erred in not giving a missing wit-
ness instruction where the municipal defendant called
only five of fifteen to twenty police officers who wit-
nessed an altercation between officers and the plaintiff.
While the district court found that the officers were
equally available to all parties, we held that the officers’
employment with the city, as well as their “strong per-
sonal interest in the success of the city’s defense of their
conduct on the occasion in question,” rendered them
unavailable to the plaintiff. Id.; see also United States v.
Mahone, 537 F.2d 922, 926-27 (7th Cir. 1976) (holding that an
officer who was involved in the arrest initiating the
case was pragmatically unavailable to the plaintiff be-
cause of his association with the United States in building
its case, as well as his “interest in seeing his police work
vindicated by a conviction of the defendant”).
Christ conceded during the charge conference that he
never asked the government to produce Eichblatt and
20 No. 07-1634
Wiswesser. Christ’s failure to interview the witnesses, or
even ask the government to produce them, leaves him at
a disadvantage in arguing that their testimony would
have exhibited bias rendering them pragmatically un-
available to him. See United States v. Montoya, 676 F.2d 428,
431 (10th Cir. 1982) (holding that the district court did not
abuse its discretion in deciding that a witness was equally
available to both sides where the defendant had not
followed up on attempts to contact the witness, and had
not asked for the government’s help in locating him). This
disadvantage notwithstanding, Christ attempts to liken
Eichblatt and Wiswesser to the witnesses in Yumin and
Mahone, relying on their employment with the State
Department and arguing that they would suffer profes-
sional and reputational damage if Christ was acquitted.
The case before us, however, is easily distinguishable
from Yumin and Mahone because Eichblatt and Wiswesser
did not have the personal stake in Christ’s conviction that
arises when an officer’s own conduct is the subject of the
suit, or where official conduct in making an arrest is an
issue upon which a conviction hinges. Put another way,
we fail to see how Eichblatt or Wiswesser was vin-
dicated by Christ’s conviction. Likewise, we fail to see
how they would have been implicated in any way by
Christ’s acquittal simply because they had knowledge of,
or even participated in the formation of, the Embassy’s
referral policy or relied on referrals submitted by Christ.
Accordingly, we conclude that the district court did not
err in finding that Eichblatt and Wiswesser were avail-
able to Christ.
While this is sufficient to affirm the district court for
declining to give a missing witness instruction, we fur-
ther conclude that the district court correctly decided
No. 07-1634 21
that any testimony Eichblatt and Wiswesser could have
offered on the referral policy, to the extent it was rele-
vant, would have been redundant. The referral policy
was testified to by Kundrotiene and Karen Christensen,
the latter a division chief with the Bureau of Consular
Affairs at the State Department. Additionally, the gov-
ernment introduced a State Department memo out-
lining referral policies, and particularly the stature of
the individuals to whom referrals should be given. How-
ever, confirmation that the relevant aspects of the referral
policy had been fully presented came from statements
attributed to Christ himself, and testified to by Diplo-
matic Security Service Agent Christopher McCormack.
McCormack was assigned to investigate allegations of
fraud at the Vilnius Embassy, and in the course of that
investigation, he interviewed Christ. During that inter-
view, Christ gave a description of the referral policy
which included the preferred stature of individuals
who receive referrals, how well known the applicant
should be to the referring officer, and the benefits af-
forded to an applicant who receives a referral. Christ’s
description matched up in all material respects with the
other evidence the government presented at trial. Upon
considering the evidence presented at trial as a whole,
we agree with the district court that there was nothing to
be gained by yet more testimony regarding the referral
policies. See Mahone, 537 F.2d at 927 (“In cases . . . where
it is debatable whether the absent witness’ testimony
would have elucidated the issues in the case, there
should be latitude for the judge to decide whether the
requested instruction would be unnecessary and time
consuming for the jury.”). Having determined that the
district court did not err in making its findings on either
factor of the relevant analysis, we conclude that it did not
22 No. 07-1634
abuse its discretion in declining to give the requested
missing witness instruction.
Christ’s remaining challenges on appeal can be resolved
based on our findings above. First, after the govern-
ment’s direct examination of Roland Slabon during
which he testified about Christ’s inquiries regarding
certain motorcycles and their costs, Christ elicited testi-
mony favorable to his defense during cross-examination.
Specifically, Slabon’s testimony called into question
whether Christ knew the value of the motorcycle he
allegedly received as a bribe when conspiring to com-
mit visa fraud. On re-direct, the government questioned
Slabon regarding a subpoena and a check for $975.00
he received from Christ. Christ objected on relevancy
grounds, arguing that it was improper to use this payment
to raise the specter of bias because it had been paid to
Slabon as required by Federal Rule of Criminal Proce-
dure 17.2 The district court overruled Christ’s objection,
and allowed the government to make the inquiry. We
review such evidentiary rulings for abuse of discretion,
and will only disturb the decision of the district court
where it had a substantial influence over the jury. United
States v. Hernandez-Rivas, 348 F.3d 595, 600 (7th Cir. 2003).
When considering the influence any erroneously ad-
mitted testimony had over the jury, we weigh “(1) the
importance of the witness’s testimony in the prosecu-
tion’s case; (2) whether the testimony was cumulative;
2
“A marshal, deputy marshal, or any nonparty who is at least
18 years old may serve a subpoena. The server must deliver a
copy of the subpoena to the witness and must tender to the
witness one day’s witness-attendance fee and the legal mileage
allowance.” Fed. R. Crim. P. 17(d).
No. 07-1634 23
(3) whether other evidence corroborated or contradicted
the witness’s material testimony; and (4) the overall
strength of the prosecution’s case.” Id. (citation omitted).
To the extent that the government’s questioning prej-
udiced Christ at all, it prejudiced him on the question
of whether he accepted the second motorcycle as a bribe.
Christ was acquitted of that charge, however, and we
therefore fail to see how any prejudice resulted from the
questioning. Moreover, the bribery charge has no effect
on the issues before us because, as we concluded above,
the government presented such substantial evidence of
Christ’s guilt regarding the visa fraud charge that it
withstands even acquittal on the bribery charge. Because
of the strength of the government’s case on the visa
fraud charge, the minimal importance of the challenged
testimony to the government’s case as a whole, and the
lack of any prejudice to Christ, we find that any error
the district court committed in allowing said testimony
was harmless.
Next, Christ argues that the district court erred in
denying his motion for a new trial based upon the insuf-
ficiency of the evidence, the court’s evidentiary rulings,
and its failure to give the jury a missing witness instruc-
tion. A district court may vacate a judgment and grant a
new trial if the interest of justice so requires, Fed. R. Crim.
P. 33(a), and we review that decision for an abuse of
discretion. United States v. Hendrix, 482 F.3d 962, 967 (7th
Cir. 2007). As set forth above, there was more than suffi-
cient evidence to support Christ’s conviction for con-
spiracy to commit visa fraud, and the district court did not
commit error in making the challenged evidentiary rul-
ings, nor in instructing the jury. That being that case,
there is no basis from which Christ can argue that the
24 No. 07-1634
interests of justice require that he be afforded a new trial.
Accordingly, we find that the district court did not abuse
its discretion in denying Christ’s motion for a new trial.
Finally, Christ argues that his sentence was unreason-
able because the district court imposed an enhancement
based on its unsupported finding that Christ’s crime
involved more than six visas. United States Sentencing
Guidelines § 2L2.1(a) establishes a base offense level of 11
for the visa fraud crime of which Christ was convicted.
The district court found that Christ’s abuse of a position
of public trust warranted a two-level enhancement pursu-
ant to U.S.S.G. § 3B1.3, and Christ does not challenge
this finding. The parties are therefore in agreement that
Christ had an offense level of at least 13. Their dispute,
however, centers on a second enhancement the district
court applied pursuant to U.S.S.G. § 2L2.1(b)(2)(A),
which allows a three-level increase when a defendant’s
crime involved between six and twenty-four documents.
An offense level of 13, when combined with Christ’s lack of
any prior criminal convictions, carries with it an advisory
guideline range of twelve to eighteen months. An offense
level of 16, however, carries with it an advisory guide-
line range of twenty-one to twenty-seven months. After
finding that Christ’s crime involved six or more visas,
and that he therefore had an offense level of 16, the dis-
trict court sentenced Christ to twenty-four months in
prison. While our review of a district court’s interpreta-
tion of the Guidelines is de novo, we review the factual
findings made in applying the Guidelines for clear error
and will reverse only if we are “left with the definite
and firm conviction that a mistake has been committed.”
United States v. Johnson, 227 F.3d 807, 812-13 (7th Cir. 2000)
(internal quotations and citations omitted).
No. 07-1634 25
The parties do not dispute that the visas of the co-
conspirators are attributable to Christ, but Christ argues
that there was no basis upon which the district court could
attribute more than those four visas to him. However,
we found above that the family application evidence was
not only admissible at trial, but that it amounted to evi-
dence of conduct undertaken in furtherance of the charged
conspiracy. Such evidence certainly qualifies as relevant
conduct under the Guidelines, which directs consideration
of “all acts . . . committed, . . . counseled, commanded,
induced, procured or willfully caused by the de-
fendant . . . . that occurred during the commission of
the offense of conviction . . . .” U.S.S.G. § 1B1.3(a)(1)(A).
While there was no special verdict form allowing us
to determine the jury’s specific finding regarding the
family application evidence, we see no clear error in the
district court’s finding by a preponderance of the evid-
ence that Christ’s crime involved the family’s visa ap-
plications. See United States v. Frith, 461 F.3d 914, 917 (7th
Cir. 2006) (noting that even conduct underlying an acquit-
ted charge may be considered as relevant conduct as long
as it is proved by a preponderance of the evidence). The
parties also dispute the district court’s inclusion of visas
other than those of the co-conspirators and Robertas’s
family, but we need not resolve that dispute because
there is no contention that their inclusion would estab-
lish that Christ’s crime involved more than twenty-four
visas, thereby allowing application of a six-level enhance-
ment. See U.S.S.G. § 2L2.1(b)(2)(B). Because the district
court was presented with sufficient evidence at trial to
support its finding at sentencing that Christ’s crime
involved between six and twenty-four visas, we con-
clude that it correctly applied a three-level enhancement
26 No. 07-1634
pursuant to U.S.S.G. § 2L2.1(b)(2)(A), and that the sen-
tence imposed was reasonable.
III.
We conclude that the prosecution presented sufficient
evidence to support Christ’s conviction beyond a reason-
able doubt. We further conclude that the district court’s
rulings regarding the admissibility of the challenged
evidence were not in error and that there was no abuse
of discretion by the district court in declining to give a
missing witness instruction. Based upon those findings,
it is clear that Christ was not entitled to a new trial, and
the district court did not abuse its discretion in denying
his request for one. Finally, because there was a suf-
ficient basis upon which the district court could properly
apply the challenged sentencing enhancement, we con-
clude that Christ’s sentence was not unreasonable. Accord-
ingly, we AFFIRM both Christ’s conviction and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-28-08