United States v. Michael Chaparro ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2513
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL L. CHAPARRO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:16-cr-50010-1 — Frederick J. Kapala, Judge.
____________________
ARGUED DECEMBER 11, 2019 — DECIDED APRIL 13, 2020
____________________
Before FLAUM, HAMILTON, and BARRETT, Circuit Judges.
HAMILTON, Circuit Judge. A jury found Michael Chaparro
guilty on three felony charges for viewing and transporting
child pornography. The charges arose from three crimes sep-
arated by significant gaps in time: viewing child pornography
on a hard drive in July 2013, transmitting child pornography
files over the Internet in August 2014, and viewing child por-
nography on a smartphone in November 2014. Chaparro was
sentenced to three concurrent prison terms of 210 months
2 No. 18-2513
each. On appeal he challenges his convictions on three distinct
grounds: the sufficiency of the evidence that he was the per-
son using the electronic devices; the admission at trial of a
statement that he made to Pretrial Services; and allegedly im-
proper remarks by the prosecutor during rebuttal.
The first and third challenges were not raised in the dis-
trict court and provide no basis to disturb the convictions.
Granted, the government’s case could have been stronger as
to the identity of the devices’ user. The computer forensics led
investigators to a home, not to an individual, and little evi-
dence showed that Chaparro resided at the relevant street ad-
dress before December 2014. Nevertheless, there was suffi-
cient evidence to sustain the convictions on plain-error re-
view. Any improper rebuttal comments did not affect Chap-
arro’s substantial rights.
The admission of Chaparro’s pretrial services statement
was an error, though. When Congress created Pretrial Ser-
vices, it made pretrial services information “confidential” and
specifically prohibited its admission “on the issue of guilt in a
criminal judicial proceeding.” 18 U.S.C. § 3153(c)(1) & (3).
This rule may protect some accused defendants, but its most
important benefits accrue to the judicial system as a whole.
Confidentiality helps pretrial services officers obtain the in-
formation needed to make quick and accurate recommenda-
tions about pretrial release and detention.
This case concerns a judge-made impeachment exception
to Congress’s mandate of confidentiality. In his pretrial inter-
view, Chaparro had said that he lived at the scene of the
crimes on all the relevant dates. The government left the rec-
ord blank on that key point during its case in chief. Chap-
arro’s lone witness, his uncle Eddie Ramos, then testified that
No. 18-2513 3
Chaparro did not live at the address until just before his ar-
rest. As rebuttal, the government sought to call the pretrial
services officer who interviewed Chaparro. The district court
allowed the testimony, over objection, relying on cases from
other circuits that have recognized an exception to pretrial
confidentiality for impeachment. See, e.g., United States v.
Griffith, 385 F.3d 124 (2d Cir. 2004).
Those precedents were inapposite, and it was a legal error
to admit Chaparro’s statement to Pretrial Services. Chaparro’s
words were not a prior inconsistent statement by Ramos, the
testifying witness. Instead, the government used them for
“impeachment by contradiction” against Ramos. Despite the
“impeachment” label, someone else’s contradictory statement
is relevant only if it is offered for the truth of the matter as-
serted. The statement by Chaparro was thus offered as evi-
dence of guilt, a purpose specifically prohibited by statute.
This error was not harmless for two of the three convictions.
Considered for its truth, Chaparro’s statement filled a key gap
in the government’s cases on the July 2013 and August 2014
charges. Those convictions must therefore be vacated. Chap-
arro is entitled to a new trial on those charges or, in the alter-
native, to resentencing on the remaining conviction.
I. Sufficiency of the Evidence
We first explain why the evidence was sufficient to sup-
port the jury’s guilty verdicts on all three charges. Our review
on this question is limited to “plain error.” Although Chap-
arro moved for a directed verdict under Rule 29 at the close of
the government’s case, he failed to renew that motion at the
close of all the evidence. He thus forfeited his sufficiency chal-
lenge, and we review for a “manifest miscarriage of justice.”
See United States v. Clark, 787 F.3d 451, 459 (7th Cir. 2015);
4 No. 18-2513
United States v. Natale, 719 F.3d 719, 743 (7th Cir. 2013); United
States v. Williams, 298 F.3d 688, 692 (7th Cir. 2002). Under this
standard, we will overturn the jury’s verdict “only if ‘the rec-
ord is devoid of evidence pointing to guilt, or if the evidence
on a key element of the offense was so tenuous that a convic-
tion would be shocking.’” Natale, 719 F.3d at 743, quoting
United States v. Turner, 551 F.3d 657, 662 (7th Cir. 2008).
We begin with some background common to all charges.
The investigation started in August 2014 when an undercover
detective in Pennsylvania, Robert Erdely, recorded the Inter-
net Protocol (IP) address of a computer transmitting child
pornography to him over the Internet. The IP address corre-
sponded to an AT&T account in the name of Eva Chaparro,
the defendant’s grandmother, with service at a home in
McHenry, Illinois.1 Based on Erdely’s tip, Detective Michelle
Asplund of the McHenry County Sheriff’s Office executed a
search warrant at the home on December 2, 2014. Accompa-
nying her was Zeus Flores, a forensic computer examiner with
the Illinois Attorney General’s Office. When law enforcement
arrived, only three people were in the house: Eva Chaparro,
her husband Hector Chaparro—that is, the defendant’s
grandfather—and Eddie Ramos, the defendant’s uncle.
Officers searched the home for computers and found two
Gateway-brand laptops and a Compaq-brand desktop. Flores
examined these computers on site and determined that the
1 “IP addresses identify computers on the Internet, enabling data
packets transmitted from other computers to reach them.” Nat’l Cable &
Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 987 n.1
(2005). Erdely testified that “as someone connects to me on the Internet …
I see his IP address,” allowing Erdely “to find out who the customer is, at
least the person paying the bill for that Internet service.”
No. 18-2513 5
desktop’s hard drive contained child pornography. During
the search, Michael Chaparro arrived at the home. The officers
seized an LG-brand smartphone from him. The smartphone
could not be examined on site, but Flores later determined
that it too had child pornography stored in its memory.
A grand jury indicted Michael Chaparro on three charges.
Count One charged him with transporting child pornography
over the Internet to Erdely in August 2014. Counts Two and
Three charged him with accessing child pornography with in-
tent to view it on the LG smartphone in November 2014 and
on the Compaq desktop in July 2013. For clarity, we address
the sufficiency of the evidence as to the charges in chronolog-
ical order rather than the order in the indictment.
A. Count Three – Accessing Material on the Hard Drive
Count Three charged Chaparro with accessing an image
of child pornography stored on the Compaq desktop’s hard
drive on July 30, 2013, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Chaparro concedes that the hard drive con-
tained child pornography. He argues that the government
failed to prove that he himself accessed any image on the hard
drive or that there was a connection to interstate commerce.
The forensic evidence showed that someone used the hard
drive to access child pornography on July 30, 2013. On the
date of the search, December 2, 2014, Flores, the computer ex-
aminer, removed the hard drive from the Compaq desktop
computer and analyzed it using special software. The desktop
had not been powered on in over fifteen months, since August
24, 2013. But Flores was able to recover records of Internet
searches for child pornography as well as images of child por-
6 No. 18-2513
nography from the drive. A user of the computer had down-
loaded a video on July 30, 2013 titled, in part, “11Yo Pe-
dofilia.” System logs indicated that folders containing child
pornography had been opened by a user. Chaparro does not
dispute these points.
The record also included circumstantial evidence that Mi-
chael Chaparro was the user of the hard drive on July 30, 2013.
Most directly, the Compaq desktop had a single user account
named “M1KEY.” In addition, the officers found the desktop
in an upstairs bedroom, and evidence suggested that this bed-
room belonged to Michael Chaparro—at least on the date of
the search. Detective Asplund testified without objection that
Eva Chaparro told her it was Michael’s bedroom. Photo-
graphs of the room showed video-gaming equipment and
sticks of men’s deodorant, items one might expect in the room
of a 26-year-old man rather than his grandmother. Another
photograph showed a partially obscured coffee mug with the
printed letters “ … hael” visible.
On the other hand, Ramos testified that the room with the
desktop computer was a “guest room/game room” and that
Michael slept in a basement bedroom. Ramos also testified
that the whole extended family, including his siblings, chil-
dren, and grandchildren, stayed overnight at the house from
time to time and used the computers. The jury was entitled to
discount Ramos’s testimony on these points. As the govern-
ment said in closing, the messy upstairs room—bed unmade,
half-empty water bottles on the dressers, video-gaming
equipment strewn about—did not resemble a guest bedroom.
Granted, there was little evidence of how long Michael
Chaparro had slept in the room with the desktop computer,
or even how long he had lived at his grandparents’ house. The
No. 18-2513 7
only direct evidence of Chaparro’s past residency was his
statement to Pretrial Services, admitted in the government’s
rebuttal case as purported “impeachment,” that he lived with
his grandparents from December 2011 to December 2014. As
explained below, the district court should not have admitted
that confidential statement because it provided substantive
evidence of guilt. But “a reviewing court must consider all of
the evidence admitted by the trial court when considering a
sufficiency of the evidence challenge, regardless of whether
that evidence was admitted erroneously.” United States v. Rah-
man, 805 F.3d 822, 839 (7th Cir. 2015), citing Lockhart v. Nelson,
488 U.S. 33, 39 (1988). Applying this principle, the record was
not “devoid of evidence pointing to guilt” as to the user of the
hard drive. Natale, 719 F.3d at 743.
Chaparro also argues that the government offered no evi-
dence that any image travelled through interstate commerce,
a distinct basis for legal insufficiency. The statute defines the
necessary connection to interstate commerce expansively: the
image must have been “mailed, or shipped or transported us-
ing any means or facility of interstate or foreign commerce or
in or affecting interstate or foreign commerce by any means,
including by computer” or “produced using materials that
have been mailed, or shipped or transported in or affecting
interstate or foreign commerce by any means, including by
computer.” 18 U.S.C. § 2252A(a)(5)(B). The government pre-
sented evidence that satisfied both paths to meet this test.
First, the images on the hard drive were downloaded from the
Internet, so the Internet transported them. The Internet is a
facility of interstate commerce. See United States v. Horne, 474
F.3d 1004, 1006 (7th Cir. 2007) (explaining in Hobbs Act case
that the Internet “crosses state and indeed international
8 No. 18-2513
boundaries”). Second, simply copying “computerized im-
ages” using “computer equipment” counts as “producing”
the images under this provision. See United States v. Anderson,
280 F.3d 1121, 1125 (7th Cir. 2002). The hard drive was manu-
factured in China, so the images were “produced” using ma-
terial transported in foreign commerce when they were cop-
ied onto the hard drive. The evidence was legally sufficient to
convict Chaparro on Count Three.
B. Count One – Transporting Material Through Interstate
Commerce
Count One charged Michael Chaparro with using the In-
ternet to transport images of child pornography on August 7,
2014, in violation of 18 U.S.C. § 2252A(a)(1). The forensics are
again undisputed. On that date, a device at the Chaparro
home in Illinois sent child pornography to Erdely, the under-
cover Pennsylvania detective, over the Internet. The device
specifically shared pieces of a “torrent” file named “817e.” As
explained at trial, the “BitTorrent” network allows anony-
mous users to combine multiple files and to share them with
one another as one electronic package called a “torrent file.”
Torrent 817e contained specific child pornography images
listed in the indictment.
Chaparro argues that there was insufficient evidence that
he was the user who shared pieces of torrent 817e with Erdely.
The device that transmitted to Erdely was never found, as the
government admitted at trial. (Recall that the Compaq desk-
top was not powered on after August 2013, so it was not the
device sharing child pornography on August 7, 2014.) Never-
theless, the record contained evidence that Michael Chaparro,
and not some other user of the home’s Internet connection,
No. 18-2513 9
shared torrent 817e in August 2014. First, the jury heard Chap-
arro’s inadmissible statement to Pretrial Services that he lived
at the home at that time. As noted, that statement must be con-
sidered in evaluating the sufficiency of the evidence.
In addition, two facts implied a single user of both the re-
covered hard drive and the unrecovered device that contacted
Erdely. Forensic investigation revealed that pieces of 817e had
also been downloaded to the recovered hard drive. And the
August 2014 device gained access to the BitTorrent network
using software called “Tixati,” a rare program that Erdely had
never encountered in hundreds of investigations. Tixati had
also been installed on the recovered hard drive. These simi-
larities were competent evidence, if not conclusive evidence,
that one person committed both crimes. See Fed. R. Evid.
404(b) (evidence of other acts admissible to prove identity
through modus operandi); United States v. Gomez, 763 F.3d 845,
854 (7th Cir. 2014) (en banc).
More generally, the evidence supporting the convictions
for accessing child pornography was admissible on this
charge to show that Chaparro had a propensity to transport
child pornography. See Fed. R. Evid. 414(a) (evidence of any
other child molestation crime “may be considered on any
matter to which it is relevant”), 414(d)(2)(B) (defining “child
molestation” to include all crimes under 18 U.S.C. § 2252A).
The government made this argument in closing: “the Defend-
ant is the one living in a room with a hard drive containing
child pornography and a phone containing child pornogra-
phy. The evidence shows that he was the one sharing child
pornography from that IP address … .” Because propensity
evidence was admissible, this argument was appropriate, and
10 No. 18-2513
the record was not “devoid of evidence” supporting a convic-
tion on Count One.
C. Count Two – Accessing Material on the Smartphone
Count Two charged Chaparro with accessing child por-
nography stored on an LG-brand cellular telephone on No-
vember 24, 2014, in violation of 18 U.S.C. § 2252A(a)(5)(B). As
with Count Three, Chaparro argues that the government
failed to prove that he was the person who accessed the im-
ages on the telephone or that a specific image travelled
through interstate commerce.
Again, the conduct and its connection to interstate com-
merce were amply supported. Forensic analysis of the
smartphone showed that a user performed searches for terms
related to child pornography on the morning of November 24,
2014. The smartphone had saved to its memory thumbnail
versions of child pornography images that a user viewed that
morning. The images arrived on the smartphone over the In-
ternet, and the smartphone was manufactured in South Ko-
rea. These facts satisfied the interstate or foreign commerce
element of the crime.
Sufficient evidence also showed that Chaparro was the
user of the smartphone on November 24, 2014. Officers seized
the device from him when he walked into the house during
the search on December 2, eight days after the charged con-
duct. The smartphone’s memory contained specific evidence
that Chaparro was also using it on the date of the crime. A text
message sent from the smartphone at 12:04 PM on November
24 read, “Hey alyssa its mike. Nick asked me to text ya.” Two
minutes earlier, a phone identified as “Nicksnew” had sent
Alyssa’s number to the smartphone. These messages imply
No. 18-2513 11
that Michael Chaparro was using the smartphone on Novem-
ber 24. The evidence was sufficient to sustain a guilty verdict
on Count Two.
II. Use of Statement to Pretrial Services to “Impeach by Contradic-
tion”
Chaparro next argues that the district court erred when it
allowed the government to impeach his only witness, Eddie
Ramos, using the statement that Chaparro himself had made
to Pretrial Services. The Pretrial Services Act provides that in-
formation from pretrial interviews is “not admissible on the
issue of guilt in a criminal proceeding” unless the charges
stem from conduct relating to Pretrial Services. 18 U.S.C.
§ 3153(c)(3). The question is whether this provision allows
one person’s account to Pretrial Services to be admitted to im-
peach a different person at trial by “specific contradiction.”
No court of appeals has decided this issue before, although
some have ruled that the government may impeach witnesses
using their own statements to Pretrial Services. We conclude
that the statute compels a different result here, especially
when interpreted in light of established evidence doctrine.
The admission of Chaparro’s statement was an error. Its ad-
mission was harmless as to Count Two (the smartphone
charge), but it was not harmless as to Counts One and Three.
A. Admission at Trial
We first summarize the proceedings in the district court
that gave rise to this question. Just before the close of evi-
dence, and without prior notice, the government called pre-
trial services officer James Wheatley as a rebuttal witness. Ed-
die Ramos had testified for the defense that Chaparro had
lived with a girlfriend from Easter 2013 to Thanksgiving 2014.
12 No. 18-2513
Since that time span covered all the charged conduct, Ramos’s
testimony would have severely damaged the government’s
case if the jury had credited it. The government called Officer
Wheatley, who would testify that Chaparro said in his pretrial
interview that he had been living at that home “for three years
prior to his arrest.” Attempting to distinguish the “issue of
guilt” statutory language, the government argued that it
wished to use Chaparro’s statement “for the purpose solely of
impeaching Mr. Ramos.” The prosecutor did not mention at
that time Ramos’s own statement to Pretrial Services.
Both the defense and Pretrial Services itself opposed hav-
ing Officer Wheatley testify about what Chaparro had told
him. The defense argued that Chaparro’s statement would in
fact go to “an issue of guilt” and more broadly that pretrial
communications “are supposed to be confidential.” Officer
Wheatley, who was already present in court, had spoken with
the chief of Pretrial Services and expressed “our position” that
“information obtained in the bond report should not be used
at trial.” Officer Wheatley also cited confidentiality regula-
tions promulgated by Pretrial Services that he believed barred
his testimony. See 8A Guide to Judiciary Policy § 240 (Sept.
23, 2019), formerly 8A Guide to Judiciary Policy app. 5A (Dec.
28, 2010). The current version of the regulations is attached as
an appendix to this opinion.2
The district court initially denied the government’s re-
quest, ruling that the statute “shields the Pretrial Services of-
ficer from having to give this testimony.” Minutes later, how-
ever, the court returned to the subject after discovering United
2
It is also publicly available online: https://www.uscourts.gov/sites/
default/files/guide-vol08a-ch02-sec240-confidentialityregs_0.pdf.
No. 18-2513 13
States v. Griffith, 385 F.3d 124 (2d Cir. 2004). That case held that
“a defendant’s statements to pretrial services are admissible
against the defendant when used to impeach the defendant’s
credibility.” Id. at 126. The district court acknowledged that
Chaparro’s case raised “the defendant’s witness’s credibility”
instead of “the defendant’s credibility,” but decided Griffith
was on point either way.
Officer Wheatley took the stand. Before his testimony be-
gan, the district court gave a limiting instruction to the jury:
“the testimony that Mr. Wheatley may give you regarding the
Defendant’s statements may be considered by you only insofar
as it may affect the credibility of Eddie Ramos and not for any
other purpose.” (Emphasis added.) Officer Wheatley then ex-
plained that he had interviewed Chaparro on March 3, 2016
to gather information for the bond report. Chaparro said that
he “had lived with his grandparents from approximately De-
cember of 2011 to December of 2014” and did not mention liv-
ing anywhere else. In a brief cross-examination, Officer
Wheatley acknowledged that he could not “say with 100 per-
cent certainty” that every defendant tells “the 100 percent cor-
rect truth” to Pretrial Services.
During redirect examination, the government without
warning asked Wheatley instead about statements Ramos had
made to Wheatley. The defense did not object to this expan-
sion during redirect. Officer Wheatley testified that he had
sought to verify Chaparro’s residence by interviewing Ramos,
whom Chaparro had named as a family member to contact.
Wheatley said that “Ramos confirmed what the defendant
had told me,” namely that Chaparro “lived with his grand-
parents” from “December 2011 to December 2014.”
14 No. 18-2513
After Officer Wheatley left the stand, the government
raised the issue of adding a jury instruction given the redirect
testimony: “the [original] instruction that we tendered to the
court is impeachment by contradiction. What the redirect
brought out from Mr. Wheatley was that Mr. Ramos made a
prior inconsistent statement.” (Emphasis added.) The govern-
ment gave the court a new jury instruction it had already pre-
pared, and the defense did not object. The new instruction as
given to the jury read: “You have heard evidence that before
the trial, Eddie Ramos made a statement that may be incon-
sistent with his testimony here in court. You may consider an
inconsistent statement made before the trial only to help you
decide how believable his testimony was here in court.” (Em-
phasis added.)
Thus, although the court had explicitly ruled on the ad-
mission of only Chaparro’s statement to Pretrial Services, the
jury also heard evidence of Ramos’s statement to Pretrial Ser-
vices. Confounding matters further, during the government’s
closing arguments, the prosecutor cited Chaparro’s statement
to Officer Wheatley—not Ramos’s—as proof that Ramos was
“a desperate liar.” On appeal, Chaparro challenges the admis-
sion only of his own statement; he emphasizes that he does
not appeal the admission of Ramos’s, which would fall within
the Griffith exception for impeachment. See Reply Br. at 4–6.
B. The Evidentiary Error
We review an evidentiary ruling for an abuse of discretion.
E.g., United States v. Driggers, 913 F.3d 655, 658 (7th Cir. 2019).
We review questions of statutory interpretation de novo,
however. E.g., Nielen-Thomas v. Concorde Inv. Servs., LLC, 914
F.3d 524, 527 (7th Cir. 2019). And a legal error is “an abuse of
discretion by definition.” Abu-Shawish v. United States, 898
No. 18-2513 15
F.3d 726, 736 (7th Cir. 2018). Using a defendant’s statements
to Pretrial Services to impeach a witness other than the de-
fendant by “specific contradiction” violates the confidential-
ity protections that Congress enacted. The district court made
a legal error and thus abused its discretion when it allowed
the government to use Chaparro’s confidential statement to
impeach Ramos.
1. The Statute and Implementing Regulations
We begin with the text of the Pretrial Services Act of 1982,
which established pretrial services agencies in each judicial
district and specified their functions and powers. See Pub. L.
No. 97-267, 96 Stat. 1136 (1982) (codified as amended at 18
U.S.C. §§ 3152–3155). Section 3153(c)(1) establishes a baseline
rule that pretrial services information should remain confi-
dential: “Except as provided in paragraph (2) of this subsec-
tion, information obtained in the course of performing pre-
trial services functions in relation to a particular accused shall
be used only for the purpose of a bail determination and shall
otherwise be confidential.” 18 U.S.C. § 3153(c)(1). Paragraph
(2) then directs Pretrial Services to issue regulations creating
five exceptions to the confidentiality bar, none of which ap-
plies to this case. See § 3153(c)(2); see also 8A Guide to Judici-
ary Policy § 240.20.30(b) (regulations promulgated under par-
agraph (2)).
This case instead concerns the third and final paragraph of
the subsection, which adds a further caveat:
Information made confidential under para-
graph (1) of this subsection is not admissible on
the issue of guilt in a criminal judicial proceeding
unless such proceeding is a prosecution for a
16 No. 18-2513
crime committed in the course of obtaining pre-
trial release or a prosecution for failure to ap-
pear for the criminal judicial proceeding with
respect to which pretrial services were pro-
vided.
18 U.S.C. § 3153(c)(3) (emphasis added). Under this provision,
Chaparro’s statement was not admissible “on the issue of
guilt” in his trial. The Eleventh Circuit, for example, has held
that allowing a pretrial services officer to identify the defend-
ant’s voice went to the issue of guilt and thus violated the Act.
See United States v. Perez, 473 F.3d 1147, 1151–52 (11th Cir.
2006) (nevertheless affirming on plain-error review).
The pretrial confidentiality mandated by Congress is de-
signed to help judges make prompt, accurate, and lawful pre-
trial release decisions. A core duty of Pretrial Services is to
“[c]ollect, verify, and report to the judicial officer, prior to the
pretrial release hearing, information pertaining to the pretrial
release of each individual charged with an offense.” 18 U.S.C.
§ 3154(1). Judges rely on these reports when deciding whether
to release defendants pending trial under the Bail Reform Act,
§ 3142. See, e.g., United States v. Mundy, No. 4:19-cr-00018-
TWP-VTW, 2019 WL 3729318, at *1, *3 (S.D. Ind. Aug. 8, 2019);
United States v. Gaunt, No. 1:18-cr-70-TLS, 2018 WL 5993885,
at *3 (N.D. Ind. Nov. 15, 2018); United States v. Khan, No. 1:15-
cr-00286, 2015 WL 4475537, at *4 (N.D. Ill. July 21, 2015).
Pretrial services officers often do not receive investigative
assignments until the defendant is arrested. They must pre-
pare their reports “in only a few hours,” according to a former
Chief Pretrial Services Officer for the District of Nevada. See
James R. Marsh, Performing Pretrial Services: A Challenge in the
Federal Criminal Justice System, Fed. Probation, Dec. 1994, at 3.
No. 18-2513 17
Chaparro’s case illustrates the required haste. He was in-
dicted on March 1, 2016; Officer Wheatley prepared an initial
report on March 2; Chaparro was arraigned on March 3; that
same day, Officer Wheatley interviewed Chaparro and Ra-
mos and prepared an addendum report. The magistrate judge
ordered Chaparro released on bond on March 7.
Pretrial confidentiality is essential to the reliability of this
rapid process. It would obviously discourage prompt and
candid interviews if defendants’ statements could later be
used to prove their guilt. Both the Senate and House Confer-
ence reports on the Act stressed this concern. The Senate Re-
port said that pretrial information “should be confidential
and only be used for a bail determination” in order “to pro-
mote candor and truthfulness by the defendant in bail inter-
views.” S. Rep. No. 97-77, at 12 (1981). The House Conference
Report explained that the goal of § 3153(c)(3) was to obtain
accurate information for the courts: “the limitation on admis-
sibility is necessary to further the objective of ensuring that
the court receives the most complete information possible.”
H.R. Rep. No. 97-792, at 9 (1982) (Conf. Rep.).
Practical experience has justified Congress’s concerns. In
the article cited above, Chief Officer Marsh noted that some
defense attorneys were “advising their clients not to answer
certain questions posed to them by pretrial services officers or
interview at all.” Marsh, supra, at 4. In 2005—the last year for
which such data are available—12.1 percent of defendants na-
tionwide refused to be interviewed. See Admin. Office of the
U.S. Courts, Judicial Business Table H-2: Interviews and
Types of Pretrial Services Reports (2005).3 This fact shows that
3 Available online at https://www.uscourts.gov/statistics-reports/judi-
cial-business-2005. “Judicial notice of historical documents, documents
18 No. 18-2513
a non-trivial minority of defendants already perceive danger
in cooperating with Pretrial Services. An overly permissive
reading of § 3153(c)(3) would likely corroborate these fears
and interfere with the proper operation of the courts in pre-
trial release and detention decisions. The regulations promul-
gated by Pretrial Services make this same point: “The disclo-
sure of pretrial services information for purposes other than
determining pretrial release, particularly for prosecution pur-
poses, would deter a person from cooperating with an officer
and deprive the court of necessary information.” 8A Guide to
Judiciary Policy § 240.10(b).4
Emphasizing the importance of this issue, the reliability of
pretrial release decisions has a constitutional dimension. To
comply with the Due Process Clause, pretrial detention au-
thorized by the Bail Reform Act must be “regulatory, not pe-
nal.” United States v. Salerno, 481 U.S. 739, 746 (1987). In up-
holding the Act, the Supreme Court underlined its reliability
safeguards: “the procedures by which a judicial officer evalu-
ates the likelihood of future dangerousness are specifically
contained in the public record, and reports of administrative bodies is
proper.” Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456
(7th Cir. 1998).
4Because Pretrial Services is an arm of the judiciary within the Ad-
ministrative Office of the U.S. Courts, see 18 U.S.C. § 3152(a), regulations
it promulgates do not receive Chevron deference in the traditional sense.
See Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837,
844 (1984) (“We have long recognized that considerable weight should be
accorded to an executive department’s construction of a statutory scheme it
is entrusted to administer … .” (emphasis added)). Nevertheless, Pretrial
Services had a congressional mandate to issue the confidentiality regula-
tions, and we give them due respect as the views of the office tasked with
a crucial function for the courts.
No. 18-2513 19
designed to further the accuracy of that determination.” Id. at
751. Pretrial confidentiality promotes this important aim.
In light of the strong policy favoring confidentiality of pre-
trial services information, we note the procedure district
courts should follow when asked to order its disclosure.
Judges may certainly order disclosure permitted by the Act in
appropriate circumstances. The pretrial services regulations
recognize this power, allowing officers to disclose pretrial in-
formation if “authorized by confidentiality regulations or di-
rected by a judge for good cause shown.” 8A Guide to Judiciary
Policy § 240.20.20(a) (emphasis added). In this case, none of
the authorized exceptions was relevant. See § 240.20.30 (list-
ing fourteen categories of authorized disclosures). Officer
Wheatley thus refused to testify at Chaparro’s trial until the
court ordered him to do so.
District courts should exercise this power in accordance
with the pretrial services regulations and any relevant local
rules. The regulations specify factors for a judge to consider
before finding good cause for disclosure: (1) any promise of
confidentiality made to the information’s source; (2) any harm
the disclosure might cause; (3) the overall policy in favor of
confidentiality; and (4) the purpose of the disclosure.
§ 240.20.30(i). The regulations also direct generally that any
disclosure “be limited to the minimum information necessary
to carry out the purpose of the disclosure.” § 240.20.30. The
local rules of the district court in this case similarly require
any disclosure to be supported by good cause and to be no
broader than necessary to accomplish its purpose. See N.D.
Ill. Local Crim. R. 46.4(b)(1) & (d). Even without a controlling
local rule, those are sensible standards.
20 No. 18-2513
Here, the district judge neither found that the government
had shown good cause to introduce the pretrial services state-
ments nor limited Officer Wheatley’s testimony to the mini-
mum information necessary for impeachment. Granted, not
every departure from the regulations and local rules neces-
sarily violates the Pretrial Services Act. But district courts can
minimize the risk of erroneously admitting evidence by re-
quiring litigants to show good cause for disclosure in the first
place. See, e.g., United States v. Mbirika, No. 1:12-cr-00602-
PKC, 2013 WL 5295195, at *2–3 (S.D.N.Y. Sept. 16, 2013) (find-
ing government failed to show good cause after considering
“(1) the kind and character of the information sought, (2) the
stated need for the information and (3) the availability of com-
parable information from other sources”). Such an inquiry
might have led the district court to limit Officer Wheatley’s
testimony and prevented this statutory dispute. At this stage,
however, our task is to evaluate whether the admission of
Chaparro’s statement violated the Act.
2. An Implied Impeachment Exception to Pretrial Confi-
dentiality
We thus return to the “issue of guilt” language in 18 U.S.C.
§ 3153(c)(3). Five circuits have held that, because the Act spe-
cifically bars pretrial services evidence “on the issue of guilt,”
it implicitly permits such evidence for impeachment pur-
poses. See United States v. Ackies, 918 F.3d 190, 206 (1st Cir.
2019); United States v. Griffith, 385 F.3d 124, 126 (2d Cir. 2004);
United States v. Stevens, 935 F.2d 1380, 1393–97 (3d Cir. 1991);
United States v. Wilson, 930 F.2d 616, 619 (8th Cir. 1991); United
No. 18-2513 21
States v. De La Torre, 599 F.3d 1198, 1205 (10th Cir. 2010).5
These decisions cite the traditional distinction between guilt
and impeachment evidence and then apply the canon that
“the expression of one thing suggests the exclusion of others.”
Exelon Generation Co., LLC v. Local 15, Int’l Bhd. of Elec. Workers,
676 F.3d 566, 571 (7th Cir. 2012) (in Latin, “expressio unius est
exclusio alterius”). Paragraph (1) of § 3153(c) makes strict con-
fidentiality the norm, but paragraph (3) adds a specific prohi-
bition against admitting pretrial information as guilt evi-
dence. The prior decisions concluded that Congress thus im-
plied an exception for impeachment evidence. See Griffith, 385
F.3d at 126; Stevens, 935 F.2d at 1395; Wilson, 930 F.2d at 619.
We have not interpreted § 3153(c) before, but we reached
an analogous result under a similar statute that barred evi-
dence from mental competency examinations “on the issue of
guilt in any criminal proceeding.” United States v. Castenada,
555 F.2d 605, 608 (7th Cir. 1977), quoting 18 U.S.C. § 4244
(1976). There, we allowed the impeachment of a testifying de-
fendant using statements he had made to a government psy-
chiatrist because they were “offered by the Government on
the limited issue of credibility rather than on the issue of
guilt.” Id. at 609. Our reasoning in Castenada comports with
other circuits’ analyses of the Pretrial Services Act.
As for the pretrial services regulations, no provision men-
tions the implied impeachment exception, either to endorse
or disparage it. The subsection on the use of pretrial services
information in prosecutions merely repeats the language of
the Act, including the “issue of guilt” proviso. 8A Guide to
5 See also United States v. Balogun, 463 Fed. Appx. 476, 483 (6th Cir.
2012) (same).
22 No. 18-2513
Judiciary Policy § 240.20.30(j). As noted above, a general
“good cause” exception recognizes that district judges may
order the disclosure of information after considering, among
other factors, “the purpose of the disclosure.” § 240.20.30(i).
The good cause provision could embrace an impeachment ex-
ception in some form.
That said, any negative inference carries risk. We cannot
be certain which concepts, if any, Congress was contrasting
with the language it included. See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 107
(2012) (negative-implication doctrine properly applies “only
when the unius (or technically, unum, the thing specified) can
reasonably be thought to be an expression of all that shares in
the grant or prohibition involved”); see also Alto Dairy v. Vene-
man, 336 F.3d 560, 566 (7th Cir. 2003) (“omissions are not en-
actments; and even deliberate omissions are often subject to
alternative interpretations”). Here, an alternative explanation
for the “issue of guilt” proviso in § 3153(c)(3) is that Congress
was exempting sentencing decisions. Indeed, the previous
paragraph expressly authorizes the release of pretrial services
information “for the purpose of compiling presentence re-
ports.” 18 U.S.C. § 3153(c)(2)(C); see United States v. Morrison,
778 F.3d 396, 400 (2d Cir. 2015) (holding that this provision
permits pretrial services information at sentencing). This
ready alternative, alongside the clear textual directive against
disclosure, casts some doubt on the inference that the statute
does not apply to impeachment.
But we need not resolve that issue here. For purposes of
this case, we assume without deciding that Congress in-
tended to create the impeachment exception found by other
circuits. Chaparro himself does not contest the existence of an
No. 18-2513 23
impeachment exception. He disputes only its scope. We must
classify use of his statement as either guilt or impeachment
evidence, so we turn to impeachment doctrine.
3. Specific Contradiction Distinguished from Other Meth-
ods of Impeachment
There are five general methods to impeach a witness:
(1) attacking character for truthfulness; (2) introducing a prior
inconsistent statement; (3) establishing bias; (4) showing im-
paired capacity to perceive, recall, or relate the events in ques-
tion; and (5) contradicting the substance of the testimony. See
United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996),
citing Charles Alan Wright & Victor James Gold, 27 Federal
Practice and Procedure: Evidence § 6094 (1990); see also 4
Mark S. Brodin et al., Weinstein’s Federal Evidence §§ 607.04–
.08 (2d ed. 2018) (listing same five methods). In this case, we
are concerned with methods (2) and (5): prior inconsistent
statements and specific contradiction. Only prior inconsistent
statements differ meaningfully from guilt evidence, and that
point of law shows the error here.
Nearly every case recognizing an impeachment exception
to pretrial services confidentiality approved impeaching a
witness by his or her own prior inconsistent statements to Pre-
trial Services—method (2). See Ackies, 918 F.3d at 206 (state-
ment of defense witness); Griffith, 385 F.3d at 125 (statement
of testifying defendant); Stevens, 935 F.3d at 1393 (statement
of defense witness); United States v. Hernandez-Espinoza, 890
F.3d 743, 746 (8th Cir. 2018) (statement of defendant at sen-
tencing); United States v. Issaghoolian, 42 F.3d 1175, 1177 (8th
Cir. 1994) (statement of testifying defendant); Wilson, 930 F.2d
at 619 (statement of testifying defendant); De La Torre, 599
24 No. 18-2513
F.3d at 1205 (statement of testifying defendant); see also Caste-
nada, 555 F.2d at 608–09 (statement of testifying defendant).6
In the only case that did not involve inconsistent statements,
the defendant had told a pretrial services officer that he was a
“hustler.” This was held admissible to show his lack of char-
acter for truthfulness—method (1). See United States v. Smith,
973 F.2d 1374, 1378–79 (8th Cir. 1992).
Impeachment by inconsistent statements attacks the gen-
eral credibility of a witness rather than the substantive truth
of specific testimony. “There is a crucial distinction between
the use of a prior inconsistent statement of a witness only to
impeach the credibility of the witness and its use to prove as
a fact what is contained in the statement.” United States v. Die-
trich, 854 F.2d 1056, 1062 n.5 (7th Cir. 1988), quoting United
States v. Ragghianti, 560 F.2d 1376, 1381 (9th Cir. 1977). The
critical point is this: a prior inconsistent statement casts doubt
on a witness’s reliability no matter which version, if either, is true.
“The attack by prior inconsistent statement is not based on the
theory that the present testimony is false and the former statement
true. Rather, the theory is that talking one way on the stand
and another way previously is blowing hot and cold, raising
a doubt as to the truthfulness of both statements.” 1 Kenneth S.
Brown et al., McCormick on Evidence § 34, at 209 (7th ed.
2013) (emphasis added). Federal Rule of Evidence 613(b) thus
allows admission of a prior inconsistent statement for im-
peachment even if the statement would be inadmissible for its
6
See also Balogun, 463 Fed. Appx. at 483 (statement of testifying de-
fendant).
No. 18-2513 25
truth. See United States v. Severson, 49 F.3d 268, 272 (7th Cir.
1995).7
The impeachment at issue in Chaparro’s case was differ-
ent. The district court allowed the admission of two pretrial
services statements, one by Chaparro and the other by Ramos.
Ramos’s was a prior inconsistent statement: whether or not
Ramos told the truth to Officer Wheatley, the fact that he said
different things at different times undermined his credibility.
As the government noted at trial, however, the admission of
Chaparro’s statement instead constituted “impeachment by
contradiction.” It undermined “the substance of [Ramos’s]
testimony”—method (5) in Lindemann, 85 F.3d at 1243—by
showing that someone else had said something different.
Chaparro rightly challenges this latter technique. To be
sure, introducing contradictory extrinsic evidence is a recog-
nized method of impeachment. See United States v. Kozinski,
16 F.3d 795, 805 (7th Cir. 1994) (“Impeachment by contradic-
tion is a valid method of impeachment and ‘simply involves
presenting evidence that part or all of a witness’ testimony is
incorrect.’”), quoting Simmons, Inc. v. Pinkerton’s, Inc., 762 F.2d
591, 604 (7th Cir. 1985). Although not expressly mentioned in
7 The same observation applies to most other instances of impeach-
ment. Evidence regarding a witness’s lack of character for truthfulness,
bias, or impaired capacity usually does not implicate substantive issues in
the case, so the line between guilt and impeachment is easy to draw. In
fact, the very concept of “impeachment” is commonly defined in terms of
the distinction between credibility and substantive truth. See Chiasson v.
Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993) (“Substantive
evidence is that which is offered to establish the truth of a matter to be
determined by the trier of fact … . Impeachment evidence, on the other
hand, is that which is offered to discredit a witness … .” (quotation marks
omitted)).
26 No. 18-2513
the Federal Rules of Evidence, “impeachment by contradic-
tion” existed at common law and “can be inferred from the
relevance rules and Rule 607.” Charles Alan Wright & Victor
James Gold, 27 Federal Practice and Procedure: Evidence
§ 6096, at 655 (2d ed. 2007); cf. United States v. Abel, 469 U.S.
45, 51 (1984) (reaching analogous conclusion regarding the le-
gal foundation of bias impeachment).
Notwithstanding its name, impeachment by contradic-
tion—also called “specific contradiction,” 1 Broun, McCor-
mick on Evidence § 45—differs in a fundamental respect from
most other impeachment: it seeks to establish substantive
facts. See United States v. Boswell, 772 F.3d 469, 476 (7th Cir.
2014) (impeachment by contradiction “involves presenting
evidence that the substance of a witness’s testimony is not to
be believed” (emphasis added)). The problem is that contrary
substantive evidence can “impeach” only if the jury accepts it
as substantively true. That characteristic undermines the
guilt-impeachment distinction for our purposes.8
A story from American legal lore illustrates this point. In
1858, Abraham Lincoln defended William “Duff” Armstrong,
a man accused of murder in Beardstown, Illinois. See Irving
Younger et al., Principles of Evidence 12–14 (5th ed. 2007). The
prosecution’s key witness testified that he saw the killing by
8The guilt-impeachment line can blur in other situations as well. For
instance, the use of prior convictions to impeach a defendant’s character
for truthfulness under Rule 609 can verge on impermissible propensity
evidence. See generally United States v. Thomas, 933 F.3d 685, 690 (7th Cir.
2019) (Rules 404 and 609 are meant to “ensure that a defendant is con-
victed based on the evidence relevant to the charged offenses, not a sup-
posed propensity to commit crimes”). We do not speculate on other cases
that might raise similar issues under the Pretrial Services Act.
No. 18-2513 27
the light of a full moon high overhead. Id. at 13. Lincoln im-
peached the witness by contradiction. He famously used an
almanac that reported a quarter-moon below the horizon at
the alleged time of the murder. Id.; see also 2 John Henry Wig-
more, Evidence in Trials at Common Law § 1000, at 1156
(1904) (giving this story as example of impeachment by con-
tradiction). Armstrong was acquitted. Note, however, that if
the lunar tables in the almanac had been inaccurate, they
would not have cast any doubt on the witness’s testimony.
Their effect depended on their truth.9
The Lincoln example shows that specific contradiction, ra-
ther than targeting a witness’s credibility, merely adds con-
trary evidence to the record. So “impeachment by contradic-
tion” is a bit of a misnomer, at least using the normal defini-
tion of impeachment that contrasts it with substantive evi-
dence. This point has long been recognized. In the original
1904 edition of his now-canonical treatise, Dean Wigmore ex-
plained that specific contradiction presents substantive evi-
dence in another guise. His analysis merits quoting at length:
[C]ontradiction in itself does nothing proba-
tively, no[t] unless the contradicting witness or
witnesses are believed in preference to the first
one, i. e. unless his error is established. It is not
the contradiction, but the truth of the contradict-
ing assertion as opposed to the first one, that
constitutes the probative end. Nevertheless, the
9 In a different account, the witness reported a three-quarters moon,
not a full moon. See John Evangelist Walsh, Moonlight: Abraham Lincoln
and the Almanac Trial 52–55 (2000). In John Ford’s version, Henry Fonda
induces the witness not only to recant his testimony but also to confess on
the stand. See Young Mr. Lincoln (Cosmopolitan Productions 1939).
28 No. 18-2513
contradiction, being the usual and prominent
feature of the process by which that end is
aimed at, has served as the common name to
designate the probative end itself. This is not
wrong, provided it be clearly understood what
that end is.
2 Wigmore, Evidence § 1000, at 1157.10
Wigmore’s advice to keep clear “what the probative end
is” guides us here. The government introduced Chaparro’s
pretrial services statement that he had been living with his
grandparents precisely because it contradicted Ramos’s testi-
mony on a key fact. The power of Chaparro’s statement to
“impeach” Ramos depended on its truth—just as Wigmore ex-
plained. Yet the Pretrial Services Act barred admitting Wheat-
ley’s testimony for its truth. Chaparro’s residency at the rele-
vant times was central to the government’s case, so the testi-
mony went to an “issue of guilt” under the Act. 18 U.S.C.
§ 3153(c)(3); see United States v. Perez, 473 F.3d 1147, 1151 (11th
Cir. 2006) (evidence implicated “the issue of guilt” because it
tended “to prove that [the defendant] had been involved in
the drug transactions for which he was charged”). Admitting
the statement violated the Act. Assuming an exception exists
under § 3153(c)(3) for other forms of impeachment, applying
10 For a more recent articulation of the same point, see James L.
Kainen, The Impeachment Exception to the Exclusionary Rules: Policies, Prin-
ciples, and Politics, 44 Stan. L. Rev. 1301, 1331 (1992) (in the hearsay context,
“impeachment proof is distinguished from substantive proof by its ability
to reflect on the credibility of a witness’s testimony, regardless of the ‘truth
of the matter asserted’ by the evidence. In this context, therefore, impeach-
ment-by-contradiction proof would be excluded from the rubric of im-
peachment.”).
No. 18-2513 29
that exception to include specific contradiction by a statement
from someone other than the witness is contrary to the confi-
dentiality protections Congress enacted.11
4. Comparisons to Other Areas of Law that Distinguish
Guilt from Impeachment
The line we draw is consistent with the lines of precedent
from which other circuits have drawn to allow use of a wit-
ness’s statement to Pretrial Services to impeach his or her own
testimony: (1) evidence suppressed under the Fourth, Fifth,
and Sixth Amendments; and (2) grand jury testimony. Both
categories of normally inadmissible evidence are subject to
impeachment exceptions. But for both categories, only a wit-
ness’s own statements—not some other person’s contradic-
tory account—can be used to impeach him or her at trial.
To begin with exclusionary rules, evidence suppressed to
remedy a constitutional violation can still be introduced to
impeach a testifying defendant’s credibility. See, e.g., Michi-
gan v. Harvey, 494 U.S. 344, 349–51 (1990) (statement by de-
fendant procured through Sixth Amendment violation);
United States v. Havens, 446 U.S. 620, 626–28 (1980) (evidence
suppressed as the fruit of an illegal search); Oregon v. Hass,
420 U.S. 714, 721–22 (1975) (statement by defendant procured
through Fifth Amendment violation). But the Supreme Court
11 Our analysis is consistent with the collateral evidence rule on im-
peachment. “[I]f a matter is collateral (that is, if it could not be introduced
into evidence as substantive proof) then it cannot be proven simply to con-
tradict the witness’ testimony for impeachment purposes.” Simmons, 762
F.2d at 604–05. “To put it another way, ‘one may not contradict for the
sake of contradiction; the evidence must have an independent purpose
and an independent ground for admission.’” United States v. Payne, 102 F.3d
289, 294 (7th Cir. 1996) (emphasis added), quoting Kozinski, 16 F.3d at 806.
30 No. 18-2513
has limited the scope of this impeachment exception to testi-
fying defendants; other defense witnesses cannot be im-
peached with suppressed evidence. See James v. Illinois, 493
U.S. 307, 313 (1990). “Expanding the class of impeachable wit-
nesses from the defendant alone to all defense witnesses,” the
Court explained, “would not promote the truthseeking func-
tion to the same extent as did creation of the original excep-
tion, and yet it would significantly undermine the deterrent
effect of the general exclusionary rule.” Id. at 313–14.
The rules for grand jury testimony are similar. The general
rule is that grand jury testimony is secret and cannot be used
in a later trial. See Fed. R. Crim. P. 6(e)(2); United States v.
Procter & Gamble Co., 356 U.S. 677, 681 (1958) (noting “long-
established policy that maintains the secrecy of the grand jury
proceedings in the federal courts”). But if a witness at trial
gave inconsistent testimony to a grand jury, that testimony
may be admitted against the witness. See United States v. Han-
dlin, 366 F.3d 584, 592 (7th Cir. 2004) (testifying defendant);
United States v. Cooper, 767 F.3d 721, 728 (7th Cir. 2014) (de-
fense witness). In fact, due to the rule that sworn prior incon-
sistent statements are not hearsay, a witness’s conflicting
grand jury testimony can often be admitted not only for im-
peachment but also as substantive proof. See Fed. R. Evid.
801(d)(1)(A); Cooper, 767 F.3d at 728. That result depends,
however, on the same witness testifying both before the grand
jury and at trial. We are aware of no authority permitting “im-
peachment by contradiction” of a witness using someone
else’s grand jury testimony.
The comparisons to constitutional violations and grand
jury testimony thus reinforce our conclusion that Chaparro’s
No. 18-2513 31
confidential statement to Pretrial Services could not be intro-
duced to impeach Ramos.
C. Harmless Error?
Improper admission of evidence does not call for reversal
if the error was harmless. The general test for harmless error
at trial is whether it is “clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent
the error.” United States v. Bonin, 932 F.3d 523, 538 (7th Cir.
2019), quoting Neder v. United States, 527 U.S. 1, 18 (1999). For
an incorrect evidentiary ruling, “we consider ‘whether the
prosecution’s case would have been significantly less persua-
sive in the mind of the average juror if the erroneously admit-
ted evidence had been excluded.’” United States v. Williams,
900 F.3d 486, 489 (7th Cir. 2018), quoting United States v. Saun-
ders, 826 F.3d 363, 370 (7th Cir. 2016). We will affirm if “the
error had no substantial influence on the verdict” because
“other untainted incriminating evidence is overwhelming.”
United States v. Zuniga, 767 F.3d 712, 717 (7th Cir. 2014), quot-
ing United States v. Dominguez, 992 F.2d 678, 681 (7th Cir.
1993).
Chaparro presents two distinct theories of the harm
caused by the admission of his statement to Officer Wheatley.
First, he argues, his statement undermined the credibility of
Ramos, his only witness, who had given testimony that
tended to exonerate Chaparro on several fronts. We reject this
theory. Chaparro challenges the admission only of his own
statement, but the jury heard an identical statement made by
Ramos. The final jury instructions mentioned only Ramos’s
prior inconsistent statement, not the “impeachment by con-
tradiction” via Chaparro. For impeaching Ramos, Chaparro’s
statement to Officer Wheatley was cumulative. “As a general
32 No. 18-2513
rule, errors in admitting evidence that is merely cumulative
of properly admitted evidence are harmless.” Jordan v. Binns,
712 F.3d 1123, 1138 (7th Cir. 2013). We are satisfied that ex-
cluding Chaparro’s statement would not have made Ramos
any more credible to the average juror.
Second, Chaparro argues that there is a risk that the jury
considered his statement as substantive evidence of guilt, not-
withstanding the limiting instruction, and that in this role his
admission bolstered the government’s case in chief. This the-
ory abandons Ramos’s testimony and refocuses on a weak-
ness in the government’s case noted above: the lack of any di-
rect evidence that Chaparro lived at his grandparents’ home
in the years before the search on December 2, 2014. To evalu-
ate whether Chaparro’s statement had a “substantial influ-
ence on the verdict” by this mechanism, Zuniga, 767 F.3d at
717, we must assess two nested risks: (1) whether the jury con-
sidered Officer Wheatley’s testimony on direct examination
for its truth; and (2) whether the testimony had a substantial
influence on the verdict.
The logic of impeachment by contradiction answers the
first question in Chaparro’s favor. Granted, we start from the
presumption that juries heed limiting instructions: though it
may be a “fiction,” the “usual view” is that “limiting instruc-
tions cure everything.” United States v. Myers, 892 F.2d 642,
645 (7th Cir. 1990). We have made clear, however, that this
presumption is rebuttable. See, e.g., Empress Casino Joliet Corp.
v. Balmoral Racing Club, Inc., 831 F.3d 815, 834 (7th Cir. 2016)
(“Absent indications to the contrary, we presume that juries
heed limiting instructions.” (emphasis added)), citing United
States v. Mallett, 496 F.3d 798, 802 (7th Cir. 2007).
No. 18-2513 33
The presumption is rebutted here because the limiting in-
struction did not even make sense as applied to Chaparro’s
own statement to Pretrial Services. The power of specific con-
tradiction evidence depends on the jury’s accepting its truth.
See above at 26–28; Kozinski, 16 F.3d at 805; 2 Wigmore, Evi-
dence § 1000, at 1157. That is why Chaparro’s statement went
to an “issue of guilt” under the Pretrial Services Act. Unless
the jury believed Chaparro’s statement that he lived with his
grandparents on the relevant dates, what doubt could it pos-
sibly have cast on Ramos’s contrary testimony?
We have great confidence in jurors, but we cannot fairly
expect them to obey contradictory or illogical instructions.
The jury was told to consider as “impeachment” evidence a
statement that was probative only if it was true, but also to
disregard the truth of the statement. That’s too much to ask.
No matter how diligent and attentive, the jury simply “could
not follow the court’s limiting instruction” and still treat
Chaparro’s statement as relevant. See Mallett, 496 F.3d at 802.
There is a substantial risk that the jury considered Officer
Wheatley’s testimony on direct examination as guilt evidence.
The second, more fact-specific question is whether the
government’s case would have been “significantly less per-
suasive in the mind of the average juror” without Chaparro’s
statement that he lived at the scene of the crime on all the rel-
evant dates. Williams, 900 F.3d at 489. The statement
amounted to an admission by the defendant—a defendant
who had exercised his constitutional right to remain silent—
to a crucial fact for the government on two of the three
charges.
In particular, Chaparro admitted that he lived at his
grandparents’ home on July 30, 2013, the date that someone
34 No. 18-2513
viewed child pornography on the hard drive, as charged in
Count Three of the indictment. The police did not search the
Chaparro home until over sixteen months later, in December
2014, at which point that desktop computer had not been
powered on for over fifteen months. As summarized above,
there was plenty of evidence that Michael Chaparro was liv-
ing in the bedroom with the desktop computer on the date of
the search. Eva Chaparro told Asplund the room was his, and
it contained a coffee mug labeled “ … hael.” Michael Chap-
arro showed up at the house while police were still there.
But the government needed to show that Chaparro was
the hard drive’s user on July 30, 2013. The record contained
no evidence, other than Chaparro’s inadmissible statement,
that he lived at his grandparents’ home in the summer of 2013.
Detective Asplund testified that she learned shortly before the
search that “an older couple” and “possibly two or three other
individuals” might live at the house. She also testified that
“you never really know who lives in a house until you get in
there and ask who lives there,” conceding that she could not
say whether Chaparro lived at the house before the search.
The government submitted no public records or anything else
to prove where Chaparro lived in the prior months and years.
The only admissible record evidence arguably probative of
Chaparro’s residency sixteen months prior appears to have
been the desktop’s user account name, “M1KEY.” That does
suggest that Chaparro at least configured the computer at
some point, but it does not place him in the home at any par-
ticular time. Given the government’s weak case on this point,
Chaparro’s admission of his residency, considered for its
truth, substantially strengthened the inference that he was the
user of the hard drive.
No. 18-2513 35
Chaparro also admitted to Officer Wheatley that he lived
at his grandparents’ home on August 7, 2014, the date that
someone at the house sent child pornography over the Inter-
net to Erdely, as charged in Count One. Although this crime
was closer in time to the search—four months prior—the gov-
ernment again presented no specific evidence that Chaparro
lived at his grandparents’ home at that time. As the defense
elicited on cross examination, Detective Erdely did not have
“any idea” who was present in the Chaparro home in early
August 2014. The computer that sent pornography to Erdely
was never recovered, so the government could present no di-
rect evidence of who used it. True, we concluded above that
the government presented sufficient evidence to sustain the
conviction on Count One on plain error review. But we relied
on the erroneously admitted pretrial services statement, spe-
cific similarities between the conduct charged in Counts One
and Three, and the propensity evidence allowed under Rule
414. See above at 8–10. The untainted evidence for Count One,
without a conviction on Count Three, was perhaps not even
sufficient, let alone “overwhelming.” Zuniga, 767 F.3d at 717.
Here, too, Chaparro’s admission of his residency helped the
government’s case significantly.
Even if considered for its truth, however, Chaparro’s state-
ment to Wheatley would not have had a substantial influence
on the verdict for viewing child pornography on the
smartphone. The smartphone conviction did not depend on
Chaparro’s living anywhere in particular. Officers seized the
smartphone from him when he walked into the house during
the search. The smartphone’s user had viewed child pornog-
raphy just eight days earlier and had identified himself in a
text message that day as “mike.” On Count Two, residence
was not particularly relevant. The exclusion of Chaparro’s
36 No. 18-2513
statement to Wheatley would not have made the govern-
ment’s case on County Two “significantly less persuasive” to
the average juror. Williams, 900 F.3d at 489. The error was
harmless as to that conviction.
Chaparro’s admission to Officer Wheatley provided by far
the best evidence of his presence at the scene of the crimes in
Counts One and Three. There is at least a reasonable doubt
whether, without the erroneous admission, the jury would
have found Chaparro guilty as to those charges. Those con-
victions must be reversed.
III. The Government’s Rebuttal Argument
Chaparro’s final argument is that improper comments by
the government during its closing rebuttal require a new trial.
Because the conviction as to Count Two remains intact, we
must address this argument as well. Chaparro did not object
to any of the statements he now challenges on appeal, so our
review is for plain error. In this context, plain error requires a
defendant to “demonstrate that the comments at issue were
‘obviously’ or ‘clearly’ improper … [such] that not only was
[he] deprived of a fair trial, but also that the outcome of the
trial probably would have been different absent the prosecu-
tion’s remarks.” United States v. Kelerchian, 937 F.3d 895, 917
(7th Cir. 2019) (alterations in original), quoting United States
v. Hills, 618 F.3d 619, 640 (7th Cir. 2010). “An error is not plain
unless it is of such an obvious nature that the trial judge and
prosecutor were ‘derelict in countenancing’ it, even absent the
defendant’s timely objection.” United States v. Turner, 651 F.3d
743, 751 (7th Cir. 2011), quoting United States v. Frady, 456 U.S.
152, 163 (1982).
No. 18-2513 37
Chaparro first argues that the government improperly
shifted the burden of proof by arguing that Chaparro could
have subpoenaed family members to corroborate Ramos and
brought forth exculpatory Internet activity records (“router
logs”) if they existed. These comments were permissible. Not
every criticism of a defendant’s case by the government raises
due process concerns: “If the evidence at issue does not impli-
cate a defendant’s right against self-incrimination, and the
jury has been properly instructed as to the burden of proof, a
prosecutor may comment on a defendant’s failure to present
evidence contradicting the government’s proof at trial.”
United States v. Glover, 479 F.3d 511, 520 (7th Cir. 2007); see
also United States v. Flournoy, 842 F.3d 524, 528 (7th Cir. 2016)
(“[A]s long as it is clear to jurors that the government carries
the burden of proof, the prosecutor may tell the jury that a
defendant has the power to subpoena witnesses.” (alteration
in original)), quoting United States v. Miller, 276 F.3d 370, 374–
75 (7th Cir. 2002). Neither of the prosecutor’s statements im-
plicated Chaparro’s right against self-incrimination, and the
district court properly instructed the jury on the burden of
proof. In addition, as in Flournoy, the prosecutor “explicitly
stated twice that the government bore the burden of proving
[Chaparro’s] guilt.” Id.
The other category of statements that Chaparro challenges
gives us more pause. Ostensibly upset that the defense had
cross-examined government witnesses, the prosecutor de-
manded: “why all the examination of Erdely and Rich? …
Why tear down Erdely and Rich? There is no reason. They
didn’t hurt him … . And same is really true with Zeus Flores.
What did he do to harm the Defendant?” Needless to say, the
accused has the right to cross-examine a government witness
38 No. 18-2513
whether or not that witness has “hurt” the accused. The pros-
ecutor then turned to testimony by Ramos that a police of-
ficer’s “machine gun” had frightened him during the search.
The prosecutor bristled at the suggestion that an officer had
acted inappropriately: “Did anybody tell you how the choices
and decisions are made by the planners before they do a
search warrant? Anybody? Anything? No, no questions
asked. Just criticism.” Most troubling, the prosecutor re-
framed this grievance in much broader terms: “So it seems
like we have to face it all the time, anybody that’s associated with
law enforcement in this country just seems to have to face it
every time they turn around. Somebody has got to say that law
enforcement behaved badly, they did bad things.” (Emphasis
added.)
“Taken as a whole, which is the right way to take a series
of questionable remarks by a prosecutor,” these comments
“exceeded the proper bounds of argument.” Hennon v. Cooper,
109 F.3d 330, 333 (7th Cir. 1997). The prosecutor’s appeal to
the hardships faced by “law enforcement in this country” in-
voked contemporary political controversies wholly unrelated
to the charges. He linked Chaparro with unnamed critics who
unfairly attack police officers generally and portrayed himself
as the defender of the police. But a prosecutor represents the
United States, not the government witnesses: “The United
States Attorney is the representative not of an ordinary party
to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern
at all.” Berger v. United States, 295 U.S. 78, 88 (1935). Accord-
ingly, prosecutors must not “appeal[] to jurors’ prejudices
and fears,” Hennon, 109 F.3d at 333, or make arguments that
are excessively “inflammatory or political.” United States v.
Boros, 668 F.3d 901, 911 n.9 (7th Cir. 2012).
No. 18-2513 39
Although the comments were improper, they do not re-
quire vacating the conviction on Count Two on plain-error re-
view. The government presented ample evidence to prove its
case on the smartphone charge. In any event, the comments
were irrelevant: the trial did not concern the propriety of the
search of the home. So we cannot say that “the outcome of the
trial probably would have been different absent the prosecu-
tion’s remarks.” Kelerchian, 937 F.3d at 917; see United States v.
Klemis, 859 F.3d 436, 442–43 (7th Cir. 2017) (upholding verdict
on plain error review despite the prosecutor’s “naked appeal
to passion rather than reason and evidence” because “the ev-
idence of [the defendant’s] guilt was plentiful and compel-
ling”).
IV. Remedy
The convictions as to Counts One and Three must be re-
versed because of the erroneous admission of Chaparro’s pre-
trial services statement. The Count Two conviction remains
intact. Chaparro was sentenced to three concurrent terms of
imprisonment of 210 months each, raising the question of
what remedy is required. Neither party objected to the district
court’s finding that each count carried an offense level of 37
under the Sentencing Guidelines. Indeed, all three counts nec-
essarily carried the same offense level because they were
grouped pursuant to Guideline 3D1.2. Because of our deci-
sion, however, it matters whether the guideline range for
Count Two would have been lower without the convictions
on Counts One and Three.
In addition, some of the specific characteristics that in-
creased Chaparro’s offense level likely would not apply to the
smartphone conviction on its own. A two-level increase for
40 No. 18-2513
distribution stemmed solely from the transportation convic-
tion. See U.S.S.G. § 2G2.2(b)(3)(F). A five-level increase ap-
plied because the offenses involved over 600 images in total,
but only two images were found on the smartphone. See
§ 2G2.2(b)(7)(D). It appears that, without Counts One and
Three, Count Two might have carried a substantially lower
offense level. Thus, if the government declines to retry Chap-
arro, he is still entitled to resentencing on Count Two with a
new guideline calculation.
The convictions as to Count One and Count Three of the
indictment are REVERSED, and the sentence on Count Two is
vacated. The case is remanded to the district court for a new
trial on Counts One and Three and/or resentencing on Count
Two in a manner consistent with this opinion.
No. 18-2513 41
APPENDIX
42 No. 18-2513
No. 18-2513 43
44 No. 18-2513
No. 18-2513 45
46 No. 18-2513
No. 18-2513 47
48 No. 18-2513
No. 18-2513 49
50 No. 18-2513
No. 18-2513 51
52 No. 18-2513