836 F.3d 849
7th Cir.2016Background
- Gregory Turner and Prince Asiel Ben Israel agreed (Nov 2008–Apr 2010) to provide public‑relations/lobbying services (arranging meetings, visa assistance, lobbying US officials) for named Zimbabwe Specially Designated Nationals (SDNs) in exchange for $3,405,000, without an OFAC license.
- A key government exhibit was a "Consulting Agreement" describing a distinctive four‑installment payment schedule tied to specific meetings/events; the government linked that document to actions by Turner, Ben Israel, and bank communications.
- Turner was indicted (Aug 27, 2013) on counts including acting as an unregistered agent (18 U.S.C. § 951) and conspiring to provide services to SDNs in violation of IEEPA and OFAC regs; jury acquitted on the §951 counts and convicted on the IEEPA conspiracy count.
- At trial, the district court provisionally admitted the Consulting Agreement as an authenticated coconspirator statement (Fed. R. Evid. 901, 801(d)(2)(E)); Turner did not object at the moment the government offered it.
- Turner challenged (on appeal) (1) admission/authentication of the Consulting Agreement, (2) jury instructions (willfulness definition, unanimity re: specific SDNs, inclusion of Mumbengegwi), and (3) post‑deliberation judge interactions with jurors (ex parte contact and replacement of a juror).
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Turner) | Held |
|---|---|---|---|
| Admission/authentication of Consulting Agreement as coconspirator statement | Document was authentic, had distinctive payment terms and was sent from an account used by Ben Israel; admissible under Fed. R. Evid. 901(b)(4) and non‑hearsay under 801(d)(2)(E). | Agreement was hearsay and insufficiently authenticated: declarant identity uncertain and events/payments not proven to match the document. | Court affirmed admission: prima facie authentication satisfied by content/circumstances; Rule 801(d)(2)(E) met because statement was in furtherance of conspiracy. |
| Definition of "willfully" in jury instructions | Traditional definition (intentional, purposeful, intent to do something the law forbids) is correct and consistent with Bryan v. United States. | Must require specific intent to provide services to SDNs (heightened willfulness). | Court upheld instruction as accurate under Bryan; even under heightened standard any error would be harmless given overwhelming evidence. |
| Jury unanimity as to which SDN was the object/target | The government need only prove conspiracy to provide services for an SDN; identity of particular SDN(s) is a means, not an element, so unanimity on which SDN is unnecessary. | Jury must unanimously agree on the specific SDN(s) for whom Turner conspired; at minimum identity is the conspiracy object and requires unanimity. | Court held specific SDN(s) are a means, not an element; no unanimity requirement. Richardson (CCE) not controlling. |
| Replacement of juror and ex parte contact after deliberations began | Court lawfully excused a juror who declared he would not return; alternate replaced and deliberations restarted. Ex parte communications were limited/non‑substantive and harmless. | Replacement and ex parte judge communications violated Rules and Turner’s presence rights; presumptively prejudicial. | Court found (i) replacement proper under Rule 24 and not abuse of discretion; (ii) Rule 43 presence right was technically violated but any ex parte contact was ministerial and the error was harmless. |
Key Cases Cited
- Bryan v. United States, 524 U.S. 184 (1998) (traditional willfulness definition—knowledge conduct is unlawful suffices)
- Richardson v. United States, 526 U.S. 813 (1999) (jury unanimity requirement for elements; analysis specific to CCE statute)
- United States v. Dobek, 789 F.3d 698 (7th Cir.) (discussion of heightened willfulness in export/regulation context)
- United States v. Griggs, 569 F.3d 341 (7th Cir.) (distinguishing elements from means; unanimity on means not required)
- United States v. De Gudino, 722 F.2d 1351 (7th Cir.) (authentication under Rule 901(b)(4) where declarant unknown but document contents and context corroborate)
- United States v. Phillips, 745 F.3d 829 (7th Cir.) (no constructive amendment where additional, similar evidence falls naturally within indictment)
- United States v. Bishawi, 272 F.3d 458 (7th Cir.) (ex parte contacts with jurors are presumptively prejudicial but presumptions are rebuttable; harmless‑error review)