Case Information
*1 Before W OOD , Chief Judge , E ASTERBROOK H AMILTON Circuit Judges .
W OOD Chief Judge Frank smart man has done some stupid things. Prominent among latter his plan beating felony drug indictment having prosecutor Drug Enforcement Administration agent murdered. A convicted his role plot, sentenced life plus twenty years. On ap peal, argues Fifth Amendment right *2 ‐ compelled testify against himself violated trial. He contends he prejudiced by improper structions. persuaded by either argument, and affirm judgment.
I accomplished and well ‐ published medical
researcher, but he succumbed lure illegal drug trade and began producing synthetic drugs, including than 70,000 pills MDMA (3,4 methylenedioxy N methylamphetamine), commonly known as ecstasy. DEA Special Agent Patrick Bagley, along with federal offic ers, caught wind side projects arrested him; later indicted on felony drug charges. After dictment, met with Assistant Attorney Shoshana Gillers (among others) five proffer sessions discuss plea bargain.
On December Attorney Tamara Holder contact ed Federal Bureau Investigation with disturbing information her clients, Ricardo Ruiz, had infor mation about kill AUSA Gillers Special Agent Bagley. FBI investigators met with Ruiz, told them had been recruited man named Jack Mann Gillers Bagley exchange kilograms cocaine lessons how make synthetic drugs. Ruiz provided agents with copies documents drug case, well as envelope had given him.
On January FBI arrested Mann, agreed cooperate. Two days later, Mann met with Caira a Panera restaurant while wearing a wire. Although wire malfunctioned and produced useful evidence, Caira was arrested walked home from meeting. agents seized cell phone, on they found sever al text messages between Caira and Mann. Based on text messages and testimony of Mann and Ruiz, Caira indicted two counts each of conspiracy commit murder a official violation U.S.C. § and solicitation a violent felony violation U.S.C. § 373.
At trial, government’s rested primarily Mann and Ruiz and text recovered phone. Mann and Ruiz testified Caira approached Mann about finding a hitman kill Gillers and Bagley, whereupon Mann recruited Ruiz. In text messages, Caira and Mann discussed plot coded language. “When can you get me paperwork names people be underwritten?” asked Mann point. Caira wrote back, “You names, you know big one,” Mann replied, “Pat be insured.” At trial, Caira testified Mann used term “underwritten” “refer[] contracts general, term having people underwritten killed came up with.” another message, plan “green light.” Asked later what this message meant, said, “He referring whole plan killing prosecutor saying, look, there’s green light[.]” these comments reveal, never disputed kill Gillers Bagley existed. Rather, defense *4 ‐
was that was all Mann’s idea and that Caira never intended that anyone should be hurt. Caira pointed to cajol ‐ ing text messages sent Mann and a threatening voicemail Ruiz as evidence that Mann and Ruiz driving forces behind plot. For his first witness, Caira attempted to call former attorney, Jeffrey Fawell, to testify that Caira shown him Mann’s panic. This evi dence, Caira argued, relevant show mind time, specifically, that he lacked murderous intent. government objected that Fawell’s testimony would be hear say, and agreed, stating “[Fawell’s] statement as what Mr. Caira said without some as person making statement would be rank hear say. … [T]here certain conditions precedent met order evidence come be hearsay.” After short recess, defense counsel announced Caira would testify, while attempting simultaneously preserve Fifth Amendment issue for appeal.
Caira stand for hours. He explained met Mann while trying purchase insurance. Mann discussed pending drug as part plan calling for Mann pay gang leader turn gang sters exchange for leniency for Caira (the called “gang member trade in”). It Mann, Caira asserted, himself, proposed idea killing Gillers Bagley—a plan claimed think lunacy. He said tried avoid months suggested Mann later Ruiz (whom knew only “Gomez”) threat ened him. conversation Fawell, testi fied: *5 ‐
I got text message from Jack saying there is green light, everything ready to go, you know, something like ball your he texted me. So as I got text message, I let [Fawell] read it, he said, you know, what’s about? And I explained him Jack’s plan to want to kill prosecutor. And I him this, [Fawell] is, like, just … stay away from Jack, just stay away from all shit, just don’t get involved Jack any more.
Caira nothing more say about conversation.
The government’s cross examination Caira devas tating. It elicited from admissions he manu factured drugs years; sold them hundreds thou sands dollars; lied IRS, court, wife; solicited (jokingly, maintained) kill lawyer’s dogs when lawyer moved withdraw case. The jury even learned dog’s name Jackson. admitted code Mann’s text referred plot. defense concluded put ting on witnesses, including Fawell, testified about message conversation.
At conclusion defense’s case, parties collaborated jury instructions. counsel objected inclusion list factors could corroborate intent, but object instructions’ discussion mental required convict. noted earlier, found guilty all counts sentenced life prison plus twenty years. *6 ‐
II Caira’s appeal relates only his conviction. He argues district court’s ruling his testimony a “condition precedent” Fawell’s testimony violated his Fifth Amendment right against compelled self ‐ incrimination. Second, argues instructions failed explain mental required convict for conspiracy commit solicitation murder, these erroneous instructions prejudiced substantial rights. We take up these arguments turn.
1. Fifth Amendment begin question whether district erred ruling a necessary predi cate Fawell’s proffered account. Ordinarily, we review propriety evidentiary ruling an abuse discretion. Wilson 2002). Caira, however, argues court’s ruling violated Fifth Amendment right remain silent. To extent person raises genuine constitutional claim, our review de novo but litigant has simply dressed evidentiary ruling constitutional clothing, we continue use abuse discretion standard. explain below, arguments do trigger than deferential review. Id.
Under Federal Rules Evidence, hearsay defined “a statement that: (1) declarant does make while testifying current trial hearing; (2) party offers evidence prove truth matter asserted statement.” F ED R. E VID . 801(c). statements issue here were made during conversation between Fawell Caira, they about received *7 from Mann. In those statements, supposedly Fawell that had received Mann’s messages; Fawell then advised him stay away from Mann. Neither nor Fawell made his statements “while testifying at the current trial,” so the part Rule 801(c)’s definition met. question is whether any the contested statements offered the truth, or instead it offered purpose. In our view, the natural interpretation these statements were offered show mind, not prove the point actually received should avoid Mann. Be cause statements not offered prove truth matter asserted, erred characterizing them as hearsay.
That conclusion in itself, however, does not compel ruling in favor. He urges this evidentiary error effect forcing him take stand, further this compelled necessarily violated rights under Fifth Amendment. But link between evidentiary constitutional violation cannot drawn readily. noted
United States Paladino
, 2005), Supreme Court has held there compulsion Fifth Amendment uses concept situation, because defendant retains option standing right testify seeking appellate correction evidentiary ruling.
Id.
citing
Luce
41–43 (1984). asks us overrule
Paladino
ground unjustifiably extends Supreme Court’s reasoning
Luce
defendant testify trial. con trast, both
Paladino
present case,
*8
8 12 2631 testify. is correct that
Luce
addresses the situation in which the defendant elects to testify in light of the trial court’s (erroneous) preliminary determination that the gov ‐
ernment would be permitted to introduce certain impeach ‐
ment evidence. See
Luce
,
As we noted Paladino , “there no compulsion such a case, since defendant has option refusing testi fy instead, if convicted, obtaining appellate cor rection erroneous evidentiary ruling with a new trial.” F.3d at We acknowledged “this rule puts defendant a hard tactical choice,” but con cerned “the alternative would give him bites at apple: testify, try win acquittal; fails, appeal get a new trial on basis judge’s ruling.” Id. ; see Wilson , 599–600 (rejecting defendant’s argument such a choice impermissibly puts defendant “on horns a dilemma”). see reason jettison logic. Cf. McGautha California (1971) (concluding “the policies privilege against com pelled self incrimination offended when defendant capital case yields pressure testify issue punishment risk damaging guilt”). Luce Paladino court’s decision here left difficult choice, but choice none *9 9 12 2631 theless. Caira’s decision voluntary, strategic fully informed—that is, it the antithesis compulsory. Had the jury believed him, he might free man today. But it did not. satisfied Caira’s decision testify based on much more than the court’s evidentiary rul ing. That not unusual: “an accused’s decision whether testify ‘seldom turns the resolution factor[.]’” Luce , U.S. (quoting New Jersey Portash U.S. (1979) (Blackmun, J., dissenting)).
Understood ordinary evidentiary error, the mistaken decision exclude Fawell’s testimony would not call reversal unless affected Caira’s substantial rights. See F ED R. C RIM . P. 52(a). It did not have such effect. First, the proffered testimony concerned only small part overall defense. Weighed against incriminating messages, fact targets alleged prosecutor DEA agent involved own case, testimony Ruiz, Fawell’s testimony would not have been likely influence jury’s verdict. addition, Caira elected testify before offering his witnesses. Cf. Brooks Tennessee 610– (1972) (striking down statute requiring defendant testify or all because rule prevented assessing necessity his testimony). When took stand, his touched only briefly conversation with Fawell went into much greater detail about his interactions with Mann. explains saying once decided take stand, testify about than conversation Fawell else would wondered why address rest government’s case. But fact remains used opportunity testify bolster side story *10 ‐ 2631 before jury. end, cannot show mistaken exclusion one line evidence necessary effect his rights.
Our conclusion is bolstered by fact if Fawell’s tes ‐ timony really so vital his case, could have di ‐ rectly challenged its exclusion appeal. Wrongful exclu ‐ sion material evidence can, some circumstances, amount Fifth Amendment violation deprives de ‐ fendant due process. This is distinct problem raised by compulsory self ‐ incrimination. We do not have before us defendant’s only exculpatory evidence than his own is wrongfully ex cluded by court, we express no opinion about situation. hold only because deci sion testify voluntary, under governing Supreme Court cases there is merit argument his testi mony compelled violation Fifth Amendment privilege against self incrimination. Moreover, eviden tiary error identified did affect substantial rights.
2. Jury Instructions second argument prejudiced ju ry instructions failed explain required mental states. But trial raise challenges now makes. Our review therefore only plain error. F ED . R. C RIM P. 30(d), 52(b); see United Jackson 2007). Supreme Court explained Puckett States, (2009), plain re view proceeds four steps: *11 11 12 2631
First, there must be error or defect—some sort “[d]eviation legal rule”—that has been intentionally relinquished or abandoned,
i.e.,
affirmatively waived, the appellant. … Second, the legal error must be clear or obvious, rather than subject reasonable dispute. … Third, error must have affected appellant’s substan ‐
tial rights, which ordinary means must demonstrate “affected outcome court proceedings.” … Fourth fi nally, if above three prongs satisfied, appeals has
discretion
remedy error—discretion which ought be exercised only error “ ‘seriously affect[s] fairness, integ rity public reputation judicial proceedings.’ “
government prove each following el ements beyond reasonable doubt: *12 First, defendant solicited, commanded, in ‐ duced, or endeavored persuade another en ‐ gage in conduct constituting violent felony in vi ‐ olation laws United States; Second, defendant intended that another per son engage in conduct constituting violent felo ny violation laws United States un der circumstances strongly corroborative that intent.
Strongly corroborative circumstances may include: [examples listed]. The above listed factors are exclusive factors consideration, nor these factors conclusive indicators intent. The sur rounding circumstances general must indicate defendant serious when solicited criminal conduct … find plain instruction. order meet its burden proof solicitation charge, gov ernment required establish (1) strongly corroborative circumstances intended arrange murders (2) solicited, commanded, induced, wise tried persuade another person carry out crime. U.S.C. § 373; Hale 2006). The instruction reproduced adequately conveys those statutory requirements. It informs must find defendant “intended” another person engage conduct constituting violent felony. It stresses “surrounding circumstances general indicate serious when solicited criminal conduct.” required include specific terms such “premeditated” “malice *13 13 12 2631 aforethought”—indeed, because crime charged so licitation violent crime, inclusion of such terms would been unnecessary and distracting. See United States v. Hill , F.3d 919, (7th Cir. 2001) (“Unless it is necessary give an instruction, it is necessary give it, important instructions stand out remembered.”).
The conspiracy instruction requires more discussion. On conspiracy, court had say:
A conspiracy an agreement between persons accomplish an unlawful purpose. To sustain charge conspiracy, govern ment must prove:
First, conspiracy charged Count ex isted,
Second, knowingly became a member conspiracy intention fur ther conspiracy,
Third, overt act committed least conspirator furtherance conspiracy … alleged conspiracy murder AUSA
Gillers Special Agent Bagley. This important, because “in order sustain judgment conviction charge conspiracy violate federal statute, [g]overnment prove least degree criminal intent necessary substantive offense itself.” United States Feola (1975). Yet never find necessary mind conviction—premeditation malice aforethought. See Brown 825–26 *14 14 12 2631 1975). On the hand, the instruction tracked Instruction 5.08(A) the 2012 pattern criminal jury instructions, which endeavor to keep instructions as simple as possible, while covering all essential points.
But instructional error alone is not enough to support re versal. Even if either instruction or the general failure instructions tell the jurors that a conspiracy to exists only if conspirators acted prescribed men tal erroneous, show that error prejudiced substantial rights “seriously affects fairness, integrity, or public reputation judicial proceed ings.”
Olano
,
When contends that an instruction defi cient, key question is effect error. United v. Kerley , 932, 938 1988). A jury charge fails properly describe an element crime is al ways considered reversible error. See Neder v. States, U.S. 1, 8–10 (1999) (holding instructional error subject harmless error review); Pope Illinois U.S. 497, 502–04 (1987). In Neder Court held verdict could stand face instruction omitted an ele ment crime it appeared “beyond reasonable doubt complained contribute verdict obtained.” U.S. citing Chapman California, (1967). That test will apply conviction. it needed find conspiracy, instructions defined “an agreement between persons accomplish unlawful purpose.”
There ample evidence permit find kill ADA Gillers Agent Bagley met definition. *15 finding that Caira “knowingly became member the con ‐ spiracy with intention further conspiracy,” the jury necessarily find that Caira joined conspiracy with intention further plan kill Gillers and Bagley. The testimony Mann and Ruiz, coupled Caira’s text messages, provide strong support finding Caira joined conspiracy knowing its object intending it succeed.
Especially under plain error review, we assess effect any instructional error against backdrop entire trial. Here, Caira’s intent was main focus both parties. own appellate brief indicates, “closing argu ments [made] clear Caira’s mental state primary point contention.” argues “juror read could easily thought … [Caira] some degree nebulous interest might constitute ‘agreement’” without realizing government needed show “manifest[ed] heightened mental malice aforethought premeditation.” But Caira’s hav ing “nebulous interest” not version events pre sented jury. Rather, jury heard distinct story lines: one which coordinated hits against Gillers Bagley, all Ruiz’s. knew exactly what being asked decide; it simply did buy Caira’s story.
Even error instructions prejudiced sub stantial rights, would reverse unless “the seri ously affects fairness, integrity, public reputation judicial proceedings.” Olano 736–37. It not. own undermines argument *16 No. never meant to any murders committed. For example, this exchange occurred during cross examination:
Q: The “people be underwritten” was code you were using Mr. Mann back forth refer Patrick Bagley Shoshana Gillers, isn’t right?
A: term underwritten, referring con tracts general, term having people underwritten be killed came up with.
Q: So it’s yes?
A: Yes. If enough, there exchange:
Q: Who they?
A: They reference Mann telling me had people research [ sic ] where these people lived.
Q: And according you direct examination, you no intention harming anybody, right? A: No intention all.
Q: Did you tell Jack December 7th: No people be underwritten? A: No, I not.
Q: Did you tell him Pat insured? A:
Q: Did you tell him do harm Shoshana Gillers?
No.
A:
Q: What you said is: You know big one. Right? A: Right, because he said he had done re search wanted money it, should have known these people already. Q: And you’re telling him “they get info,” right?
A: He me people, “they,” would got info whole murder thing. Q: thing you say you never want ed happen.
A: Exactly. light these incriminating admissions, even er roneous instruction prejudiced Caira, conviction does seriously affect fairness, integrity, public reputa tion judicial proceedings. therefore A FFIRM judg ment court. Handwritten notes mentioning Gillers’s Bagley’s names appeared envelope. Ruiz investigators never any contact Caira.