In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3816
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL M C G EE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07-CR-177—C.N. Clevert, Jr., Chief Judge.
A RGUED A PRIL 16, 2010—D ECIDED JULY 20, 2010
Before E ASTERBROOK, Chief Judge, FLAUM, Circuit Judge,
and H IBBLER, District Judge.^
E ASTERBROOK, Chief Judge. Michael McGee, Jr., was
elected to the Milwaukee Common Council in 2004.
Almost immediately he began to demand payments from
businesses that depend on liquor licenses and other
permits that he could control, because the Common
^
Of the Northern District of Illinois, sitting by designation.
2 No. 08-3816
Council allowed each Alderman to determine licensing
and zoning questions within his own district. Some of the
proprietors grumbled to their friends that McGee’s de-
mands had made their businesses unprofitable. One
proprietor’s friend contacted the FBI, which began a
criminal investigation that was assisted by a wiretap on
McGee’s phones. The recordings establish that McGee
used his public office to wring money from constituents.
He was arrested in May 2007 and charged with extor-
tion, 18 U.S.C. §1951(a); solicitation of bribes, 18 U.S.C.
§666(a)(1)(B); and structuring financial transactions to
evade reporting them, 31 U.S.C. §5324(a). The jury con-
victed on all nine counts, and the judge sentenced
McGee to 78 months’ imprisonment plus $107,433 in
restitution.
The evidence of guilt is strong and for the most part
undisputed. The victim who paid the most was Adel
“Jack” Kheirieh, who testified in detail to McGee’s de-
mands. Adel gave McGee cash, cell phones (liberally
stocked with air time), and other gifts, because McGee
threatened to terminate his liquor license, on which his
business depended. McGee contends that the evidence
on some counts is insufficient. The events underlying
these counts occurred during the investigation; many
of the encounters were recorded or even scripted by
federal agents. For example, the transaction in Count
2—Adel’s payment of $750 to McGee by money or-
der—was recorded. McGee says that the evidence is
insufficient because, although the recording proves that
McGee requested and received payment, it does not
prove that his intent was corrupt. Yet McGee mentioned
No. 08-3816 3
that, to raise what he called “seed money,” he had “sent”
a “message” to another business by having its liquor
license revoked. That’s a threat to do the same to Adel
unless he paid. McGee did not record the $750 as a cam-
paign contribution and can’t use that explanation for
taking the money. See United States v. Allen, 10 F.3d 405,
412–13 (7th Cir. 1993). Other details, such as whether
the FBI supplied this money order, do not matter. It is
not necessary to traipse through the record count by
count; the evidence supports all convictions.
McGee’s principal argument is that the trial’s first day
included a narration of his guilt based on hearsay—and
that’s indeed what happened. An FBI agent told the
jury that to obtain a warrant for a wiretap the
prosecutor had to establish, to a judge’s satisfaction, that
the telephone was being used to commit a crime. This
agent recounted what a preliminary investigation had
revealed and why the United States Attorney and high-
ranking officials at the Department of Justice thought it
enough to support audio interception of McGee’s phone
calls. Then the agent explained that District Judge
Adelman, who issued the warrant for the interception,
agreed with this conclusion. The warrant, which recites
some of this evidence (and the judge’s conclusion), was
introduced into evidence. Before the trial was two hours
old, the essence of the prosecutor’s case had been laid
before the jury. And not a word of this evidence was
from a witness with first-hand knowledge or subject
to cross-examination. The process violated both the
confrontation clause of the sixth amendment and the
hearsay rule.
4 No. 08-3816
The prosecutor’s stated rationale for exposing the jury
to this damning hearsay was that it “laid a foundation”
for admission of the wiretaps. Yet admissibility of evi-
dence is a preliminary question for the judge. See Fed.
R. Evid. 104(a); United States v. Martinez de Ortiz, 907 F.2d
629 (7th Cir. 1990) (en banc). There was no need to put
hearsay before the jury in order to make the inter-
cepted conversations admissible. In other cases, prose-
cutors have justified evidence of this kind by a sup-
posed need to explain that in real life, unlike the world
of movies and TV programs, employees of mysterious
“deniable” agencies can’t go around listening to other
people’s conversations on their own say-so. Federal
agents need to persuade politically visible and responsible
supervisors, then get judicial permission. It may be well
and good to inform juries that wiretaps need authoriza-
tion—but the means used in this trial is not the way
to do it. The right way is for the prosecutor (in an
opening statement) or the judge to tell the jury that judi-
cial permission is required and was received, and that
the process of listening is subject to statutory controls.
There was no legitimate reason to present hearsay about
the particulars of McGee’s activities or the findings of
the judge who issued the warrant. Evidence must be
submitted through witnesses with personal knowledge,
and subject to cross-examination.
Four years ago, we held in United States v. Cunningham,
462 F.3d 708 (7th Cir. 2006), that it is improper to intro-
duce hearsay under the rationale of assuaging jurors’
fears about uncontrolled snooping, and that the de-
fendant is entitled to a new trial if an objection is made
No. 08-3816 5
and overruled. The evidence smuggled in by a “how and
why we obtained a phone-intercept order” summary is
not only hearsay but also irrelevant (the validity of the
order is for the judge, not the jury, to determine). In two
cases in which the defense did not object, by contrast, we
concluded that the introduction of hearsay was not
plain error, because the evidence eventually came in
properly, by live testimony and the recordings them-
selves. See United States v. McMahan, 495 F.3d 410, 416–18
(7th Cir. 2007), vacated on other grounds under the
name Smith v. United States, 552 U.S. 1091 (2008); United
States v. Noel, 581 F.3d 490, 496–99 (7th Cir. 2009).
McGee’s trial occurred 22 months after our opinion in
Cunningham. The prosecutor should have known that he
was eliciting inadmissible testimony. The judge should
have known it too, yet did nothing. And defense counsel
likewise must have understood that the testimony was
out of bounds—yet he did not object. It is unlikely that
counsel was asleep; the hearsay rule is second nature to
any trial lawyer. Perhaps he viewed the prosecutor’s
misstep as a godsend. Evidence of McGee’s financial
exactions was going to come in from the victims, who
had personal knowledge, and their testimony would
be bolstered by recordings from wiretaps plus hidden
microphones and cameras. The main thing the hearsay
did was create an issue for appeal. A lawyer who knows
that the evidence is solidly against his client may see
strategic value in allowing error to occur, despite the
fact that the plain-error standard will make it hard to
upset the verdict on appeal.
6 No. 08-3816
Even if we are wrong in suspecting that counsel’s silence
was strategic (which would imply waiver and not just
forfeiture), the standard of plain-error review has not
been satisfied. As the Supreme Court reiterated only
a few weeks ago, the plain-error standard is hard to
satisfy. See United States v. Marcus, 130 S. Ct. 2159 (2010).
Defendant must establish, among other things, an ad-
verse effect on his “substantial rights,” which means
serious prejudice, and on this issue the defendant bears
the burden of persuasion. (This is one of several ways in
which plain-error review is more confined than harmless-
error review, the standard applicable when an objection
is made and erroneously denied.) McGee does not say
that any important part of the FBI agent’s narration
was left without support from admissible evidence in-
troduced later. That would be prejudice but did not occur
in this trial any more than in Noel or McMahan, and so
the plain-error standard has not been met.
The only way in which this case differs from McMahan
is that the wiretap orders were admitted into evidence.
These orders contained Judge Adelman’s finding that
McGee had committed, and was continuing to commit, the
sorts of acts for which he was on trial. A judicial finding
may have a strong influence on jurors—stronger than it
should, since the jurors may not appreciate that Judge
Adelman’s findings were based on a one-sided presenta-
tion by the Department of Justice. (Wiretaps must be kept
secret or they won’t be useful, so there cannot be an
adversarial presentation before the order is issued.) But
counsel was free to point out to the jury the limits of ex
parte probable-cause findings. Given the overwhelming
No. 08-3816 7
evidence at trial (all subject to cross-examination), which
showed that Judge Adelman’s findings were right, it is not
possible to treat the jurors’ knowledge of the intercept
warrants as undermining McGee’s substantial rights.
More than that: defense counsel said at trial that he had
“no objection” to the admission of the intercept orders
and so has waived this topic. Not even plain-error
review is possible.
Although McGee is not entitled to a new trial, we are
dismayed by the prosecutor’s conduct and disappointed
by the district judge’s failure to intervene. The extensive
hearsay did not slip in by accident, in the heat of the
moment; the prosecutor must have carefully planned
this line of testimony. The proper way to introduce
jurors to forthcoming wiretap evidence ought to be fea-
tured in the United States Attorney’s Manual. The
United States has not attempted to defend the propriety
of the prosecutor’s tactics. Waiver and the plain-error
doctrine may insulate judgments from reversal, but
recurrence of an episode such as this may lead to the
opening of a disciplinary proceeding for the lawyers
involved.
We turn to another of McGee’s arguments. The district
judge anticipated that the trial would be lengthy. At a
pretrial conference he told counsel that he was inclined
to permit both the prosecutor and defense counsel to
summarize the evidence occasionally, so that the jurors
could keep their bearings and maintain concentration.
Principle 13G of the American Bar Association’s Principles
for Juries and Jury Trials (2005), recommends that judges
8 No. 08-3816
allow such interim summaries in lengthy trials, whether
civil or criminal. The Seventh Circuit American Jury
Project tested seven of the ABA’s proposals in trials
before more than a dozen participating judges; mid-trial
summaries were among the tested proposals and were
used in 17 civil trials. Both the judges and counsel con-
cluded that the summaries had helped jurors organize
the evidence better, improving their attention and under-
standing. None of the participants thought the sum-
maries were hurtful, though 8% thought that they did not
help much either. American Jury Project, Final Report
32–35, 63–65 (2008). The district judge, persuaded by the
ABA’s proposals and the Jury Project’s favorable results,
decided to use this approach. McGee says that doing so
violated the due process clause of the fifth amendment
and entailed a “structural error” that requires reversal
without regard to whether any injury to the defendant
ensued.
Several decisions have concluded that mid-trial sum-
maries are permissible in civil trials. See, e.g., Consorti v.
Armstrong World Industries, Inc., 72 F.3d 1003, 1008 & n.1
(2d Cir. 1995), vacated on other grounds under the
name Consorti v. Owens-Corning Fiberglas Corp., 518 U.S.
1031 (1996); ACandS, Inc. v. Godwin, 340 Md. 334, 407–13,
667 A.2d 116, 152–54 (1995). But one court has held
that mid-trial summaries are unconstitutional and
amount to structural error in criminal trials—at least if
a summary follows each witness’s testimony and the
judge allows the summaries to be argumentative rather
than organizational. United States v. Yakobowicz, 427 F.3d
144 (2d Cir. 2005). McGee urges us to follow Yakobowicz.
No. 08-3816 9
Much of the reasoning in that decision responds to the
fact that the judge allowed argumentative summaries
after each witness’s testimony. The second circuit
thought that, because prosecutors usually present more
witnesses than defendants, the process is bound to tip
the scales in the prosecutor’s favor even though the
defense may use the opportunity to poke holes in the
testimony and the prosecutor’s case. The majority in
Yakobowicz also worried that witness-by-witness sum-
maries would force the defense to commit to a theory of
the case before the prosecutor was done, undermining the
defense’s entitlement to wait until the prosecutor rests
before announcing any theory (or deciding what evi-
dence, if any, to offer in reply). These concerns do not
arise when the district judge allows only non-argumenta-
tive summaries that are spaced days apart, so that they
do not reflect the number of witnesses each side presents.
In McGee’s case the district judge allowed just one
opportunity to each side, after the only weekend break.
(The trial concluded before the second weekend; it was
shorter than counsel had estimated.) The judge thought
that a refresher would help jurors regain their focus
after the break. The prosecutor spoke for seven min-
utes; his remarks cover five pages of the transcript. He
reminded the jury that the indictment had nine counts
and summarized in just a few sentences per count where
the evidence stood. He did not present argument, ask
rhetorical questions, or propose contestable infer-
ences. It was a simple “just the facts” recap of the sort
Joe Friday would have approved. We doubt that the
second circuit would see a problem with this procedure.
10 No. 08-3816
And if it would—well, we think that Yakobowicz over-
stated the risks and understated the potential benefits. The
majority in that decision seems to have been unaware
that the use of mid-trial summaries has been studied in
criminal as well as civil trials, and that the opinion’s
fears have not come to pass. The report of the Seventh
Circuit American Jury Project had not been released
when Yakobowicz was issued, but other reports predated
that decision. For example, a pilot program in Tennessee
used mid-trial summaries in both criminal and civil
cases, and the participants found that the summaries
helped jurors. See Neil P. Cohen & Daniel R. Cohen, Jury
Reform in Tennessee, 34 U. Mem. L. Rev. 1, 31–34 (2003). Two
psychologists concluded that mid-trial summaries
should reduce the prosecutor’s advantage in a criminal
trial by allowing the defense to undermine the prose-
cution’s case from the outset by narratives and not just
cross-examination. See Saul M. Kassin & Lawrence S.
Wrightsman, The American Jury on Trial: Psychological
Perspectives 136–37 (1988). They observed that the pros-
ecutor benefits from the primacy effect—that people give
extra weight to the first information they learn about a
subject. Summaries during trial may help jurors under-
stand that the first information is not necessarily the
best, and if so the summaries will improve the accuracy
of verdicts.
It is hard to see why mid-trial recaps should be allowed
in civil trials but categorically forbidden in criminal
trials, as McGee contends they should be. Support for
summaries in civil trials is widespread. See, in addition
to sources we’ve mentioned already, Federal Judicial
No. 08-3816 11
Center, Manual for Complex Litigation §§ 12.21, 12.34 (4th ed.
2004); New York State Bar Association, Committee on
Federal Courts, Improving Jury Comprehension in Complex
Civil Litigation, 62 St. John’s L. Rev. 549, 557–58 (1988); State
Bar of Texas, Report of the Court Administration Task
Force 54 (2008); B. Michael Dann, “Learning Lessons” and
“Speaking Rights": Creating Educated and Democratic Juries,
68 Ind. L.J. 1229, 1255–56 (1993); Tom M. Dees, III, Juries:
On the Verge of Extinction? A Discussion of Jury Reform, 54
SMU L. Rev. 1755, 1778–80 (2001); William W Schwarzer,
Reforming Jury Trials, 1990 U. Chi. Legal Forum 119, 144–45;
Douglas G. Smith, Structural and Functional Aspects of the
Jury: Comparative Analysis and Proposals for Reform, 48 Ala.
L. Rev. 441, 537 (1997). If there are skeptics, they have
kept their silence.
Yakobowicz thought that criminal trials are different
because juries are not supposed to reach conclusions
until all of the evidence is concluded. That’s true of both
civil and criminal trials, however. In both civil and
criminal trials jurors are exposed to persuasion from
the start: lawyers get to make opening statements, and
questions are asked in a way that lawyers hope will
influence jurors, who inevitably form tentative opinions
as they hear evidence. They must keep their minds open
so that opinions can change as more evidence comes in,
but this does not imply that jurors, civil or criminal, are
supposed to be empty vessels until they hear the judge’s
instructions at the very end. The sort of objections to
summaries advanced in Yakobowicz also have been
essayed against allowing jurors to take notes or ask
questions, but those procedures have been approved in
12 No. 08-3816
this circuit, and elsewhere. See SEC v. Koenig, 557 F.3d
736, 741–42 (7th Cir. 2009).
The second circuit observed that argumentative ques-
tions (and for that matter argumentative objections to
questions) are disallowed, but that’s true of both civil
and criminal trials—and the reason for keeping argu-
ment out of questions is to avoid harassing witnesses
and prevent an asymmetric and time-consuming pre-
sentation. Both sides can recapitulate the evidence; sum-
maries are not windy, unilateral harangues, as argumen-
tative questions can be. Yakobowicz also observed that
there is less discovery in criminal cases than in civil,
which is true, but defendants usually know more about
the prosecutor’s case than the prosecutor knows about
the defense case, and defendants can keep it that way
if they prefer. They need not use summaries to tip their
hands. It is hard to see how interim summaries could
change the relative informational differences estab-
lished by Fed. R. Crim. P. 16.
And we just don’t see why Yakobowicz perceived a
constitutional problem with mid-trial summaries. The due
process clause is not a code of trial procedure. Many
changes have occurred since 1791. One of the principal
changes is an increase in the length of trials. In the eigh-
teenth century multiple criminal trials were held in a
single day. See James D. Rice, The Criminal Trial Before
and After the Lawyers: Authority, Law, and Culture in Mary-
land Jury Trials, 1681–1837, 40 Am. J. Legal Hist. 455, 463
(1996); John H. Langbein, Shaping the Eighteenth-Century
Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L.
No. 08-3816 13
Rev. 1, 115–23 (1983). Today, by contrast, a single crim-
inal trial can last multiple weeks or months. When trials
are short, there’s no need for mid-trial recapitulations;
when trials are long, jurors’ attention and memory may
wane, and the opening and closing statements may be
too far apart. Nothing in the constitutional text, or the
original practice, implies that days or even months
must pass without any opportunity for the lawyers to
give the jurors their views about where the evidence
stands.
Summaries equally available to both sides are no more
objectionable than discovery, note-taking by juries, sending
written jury instructions to the jurors, and the many
changes to the rules of evidence that have accreted during
the 219 years since the fifth amendment was approved.
Some rules of trial procedure—juries, counsel, confronta-
tion, and cross-examination—are in the bill of rights.
Most are not. Living judges and legislatures may decide
that incremental changes in trial procedure are beneficial.
Finally, we are not persuaded by the second circuit’s
conclusion that any misstep with respect to interim
summaries is a structural error. Circuit Judge Sotomayor
was willing to assume that the district judge in Yakobowicz
erred by allowing argumentative summaries after each
witness. But she disagreed with the majority’s conclusion
that such an error is “structural.” See 427 F.3d at 154–58
(dissenting opinion). Judge Sotomayor’s view was vindi-
cated by the Supreme Court’s decision in Marcus, which
stressed that errors are “structural” only when they
change the fundamental framework of the trial—when, for
14 No. 08-3816
example, the judge is biased, the defendant lacks coun-
sel, or a vital phrase such as “reasonable doubt” is misde-
fined, so that the jurors do not understand their task. The
Justices regularly declare that errors of trial management
are not structural. See, e.g., Rivera v. Illinois, 129 S. Ct.
1446 (2009) (improper denial of peremptory challenge);
Washington v. Recuenco, 548 U.S. 212 (2006) (improper
failure to submit a sentencing factor to the jury); Arizona
v. Fulminante, 499 U.S. 279, 306–07 (1991) (collecting many
other examples). Allowing lawyers to be too argumen-
tative is a problem of trial management, and it is subject
to the usual doctrines of harmless error and plain error.
Yakobowicz is inapplicable to non-argumentative sum-
maries, is mistaken in concluding that criminal trials
differ categorically from civil trials with respect to mid-
trial summaries (both kinds of trials permit for the
exercise of wise discretion by district judges in jury man-
agement), and has been overtaken by the Supreme Court’s
decision in Marcus. It does not assist McGee. The district
judge did not abuse his discretion in allowing one short
non-argumentative summary as the trial resumed after
a weekend break.
One last issue: restitution. Restitution must be awarded
with respect to all crimes of which a person is convicted,
but it may not be awarded with respect to other losses
(“relevant conduct” in the Sentencing Guidelines’ parlance)
unless the defendant consents to this additional award.
See 18 U.S.C. §3663A(a)(2), (3); Hughey v. United States, 495
U.S. 411 (1990); United States v. Peterson, 268 F.3d 533, 534
(7th Cir. 2001); United States v. Webber, 536 F.3d 584, 601–02
No. 08-3816 15
(7th Cir. 2008). McGee contends that the award of restitu-
tion is defective because it includes not only the losses
attributable to the nine counts of conviction but also all
other payments to McGee that were established by evi-
dence at trial and included as relevant conduct in the
calculation of “loss” under U.S.S.G. §§ 1B1.3 and 2B1.1.
Once again the United States does not defend the
district court’s handling of this subject. Instead it
contends that McGee did not make an adequate appel-
late argument, because his brief does not cite §3663A(a)
or contain his own estimate of the appropriate award.
Neither step is necessary, however. It does not take a
long argument to point out an obvious gaffe. McGee’s
appellate brief cites Hughey; a pointer to dispositive
authority is all that is required to highlight the problem.
The United States also contends that McGee consented
to the additional award, or at least forfeited any objec-
tion to it, when his lawyer told the district court during
sentencing that “it seems like the restitution will follow
the loss amount that the court ultimately finds here.”
The prosecutor reads too much into this concession.
Restitution usually does “follow the loss amount” for the
counts of conviction. (There are exceptions, because
restitution is limited to what a victim could recover in a
civil suit, while “loss” includes attempted or anticipated
gains, see United States v. Behrman, 235 F.3d 1049 (7th Cir.
2000); United States v. George, 403 F.3d 470, 473–74 (7th Cir.
2005), but none of the differences is relevant here.) This
does not imply that restitution follows the loss calculated
for relevant conduct that did not lead to a conviction.
We don’t think that counsel meant to say otherwise; his
16 No. 08-3816
ambiguous statement does not sound like the consent
to pay additional restitution that is essential under Hughey
and the statute.
The prosecutor simplified the trial by charging only a
few discrete episodes of extortion. By the calculation in
the presentence report, the victims’ out-of-pocket loss
on the counts of conviction was $18,450. Additional
countable loss under the Guidelines came from relevant
conduct and attempted extortion, which counts for the
purpose of determining the severity of the sentence but
not for restitution. The award must be reduced—though
we do not know whether $18,450 is the right figure, as the
district judge did not decide whether it is appropriate.
Victims remain entitled to their entire loss and, if they
think that judgments will be collectable, can file civil
suits in which the criminal judgment against McGee will
have a preclusive effect, simplifying the civil litigation.
The judgment of conviction and sentence are affirmed,
except for the award of restitution, which is vacated. The
case is remanded for the entry of an award of restitution
limited to victims’ out-of-pocket loss on the counts of
conviction.
7-20-10