In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2631
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
FRANK CAIRA,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 35 — Suzanne B. Conlon, Judge.
____________________
ARGUED SEPTEMBER 10, 2013 — DECIDED DECEMBER 5, 2013
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
WOOD, Chief Judge. Frank Caira is a smart man who has
done some stupid things. Prominent among the latter was
his plan for beating a felony drug indictment by having the
prosecutor and Drug Enforcement Administration agent on
his case murdered. A jury convicted Caira for his role in that
plot, and he was sentenced to life plus twenty years. On ap‐
peal, he argues that his Fifth Amendment right not to be
2 No. 12‐2631
compelled to testify against himself was violated at trial. He
also contends that he was prejudiced by improper jury in‐
structions. We are not persuaded by either argument, and so
we affirm the judgment.
I
Caira was an accomplished and well‐published medical
researcher, but he succumbed to the lure of the illegal drug
trade and began producing synthetic drugs, including more
than 70,000 pills of MDMA (3,4‐methylenedioxy‐N‐
methylamphetamine), commonly known as ecstasy. DEA
Special Agent Patrick Bagley, along with other federal offic‐
ers, caught wind of Caira’s side projects and arrested him;
later he was indicted on felony drug charges. After his in‐
dictment, Caira met with Assistant United States Attorney
Shoshana Gillers (among others) at five proffer sessions to
discuss a plea bargain.
On December 21, 2009, Attorney Tamara Holder contact‐
ed the Federal Bureau of Investigation with the disturbing
information that one of her clients, Ricardo Ruiz, had infor‐
mation about a plot to kill AUSA Gillers and Special Agent
Bagley. FBI investigators met with Ruiz, who told them that
he had been recruited by a man named Jack Mann to murder
Gillers and Bagley in exchange for two kilograms of cocaine
and lessons on how to make synthetic drugs. Ruiz provided
the agents with copies of court documents from Caira’s drug
case, as well as an envelope that Mann had given to him.
Handwritten notes mentioning Gillers’s and Bagley’s names
appeared on the envelope. Ruiz told the investigators that he
had never had any contact with Caira.
No. 12‐2631 3
On January 13, 2010, the FBI arrested Mann, who also
agreed to cooperate. Two days later, Mann met with Caira at
a Panera restaurant while wearing a wire. Although the wire
malfunctioned and so produced no useful evidence, Caira
was arrested as he walked home from the meeting. The
agents seized Caira’s cell phone, on which they found sever‐
al text messages between Caira and Mann. Based on the text
messages and the testimony of Mann and Ruiz, Caira was
indicted on two counts each of conspiracy to commit murder
of a United States official in violation of 18 U.S.C. § 1117 and
solicitation of a violent felony in violation of 18 U.S.C. § 373.
At trial, the government’s case rested primarily on the
testimony of Mann and Ruiz and the text messages
recovered from Caira’s phone. Mann and Ruiz testified that
Caira approached Mann about finding a hitman to kill
Gillers and Bagley, whereupon Mann recruited Ruiz. In the
text messages, Caira and Mann discussed the murder plot in
coded language. “When can you get me the paperwork with
names of people to be underwritten?” asked Mann at one
point. Caira wrote back, “You have two names, and you
know the big one,” and Mann replied, “Pat is first to be
insured.” At trial, Caira testified that Mann used the term
“underwritten” to “refer[] to contracts in general, and that
was a term of having people underwritten to be killed that
he came up with.” In another text message, Mann told Caira
that the plan was a “green light.” Asked later what this
message meant, Caira said, “He was referring to this whole
plan of killing the prosecutor and saying, look, there’s a
green light[.]”
As these comments reveal, Caira never disputed that a
plot to kill Gillers and Bagley existed. Rather, his defense
4 No. 12‐2631
was that the plot was all Mann’s idea and that Caira never
intended that anyone should be hurt. Caira pointed to cajol‐
ing text messages sent by Mann and a threatening voicemail
from Ruiz as evidence that Mann and Ruiz were the driving
forces behind the plot. For his first witness, Caira attempted
to call his former attorney, Jeffrey Fawell, to testify that Caira
had shown him Mann’s text messages in a panic. This evi‐
dence, Caira argued, was relevant to show his state of mind
at the time, specifically, that he lacked murderous intent. The
government objected that Fawell’s testimony would be hear‐
say, and the district court agreed, stating that “[Fawell’s]
statement as to what Mr. Caira said without some testimony
as to the person making that statement would be rank hear‐
say. … [T]here are certain conditions precedent which must
be met in order to have that evidence come in and not be
hearsay.” After a short recess, defense counsel announced
that Caira would testify, while attempting simultaneously to
preserve the Fifth Amendment issue for appeal.
Caira was on the stand for hours. He explained that he
met Mann while trying to purchase insurance. Mann and he
first discussed Caira’s pending drug case as part of a plan
calling for Mann to pay a gang leader to turn in other gang‐
sters in exchange for leniency for Caira (the so‐called “gang
member trade‐in”). It was Mann, Caira asserted, not himself,
who proposed the idea of killing Gillers and Bagley—a plan
that Caira claimed to think was lunacy. He said that he had
tried to avoid Mann for months and suggested that Mann
and later Ruiz (whom Caira knew only as “Gomez”) threat‐
ened him. As for the conversation with Fawell, Caira testi‐
fied:
No. 12‐2631 5
I got a text message from Jack saying there is a
green light, everything is ready to go, you know,
something like the ball is in your court he texted
me. So as I got the text message, I let [Fawell] read
it, and he said, you know, what’s this about? And I
explained to him Jack’s plan to want to kill the
prosecutor. And as I told him this, [Fawell] is, like,
just … stay away from Jack, just stay away from all
that shit, just don’t get involved with Jack any‐
more.
Caira had nothing more to say about that conversation.
The government’s cross‐examination of Caira was devas‐
tating. It elicited from Caira admissions that he had manu‐
factured drugs for years; sold them for hundreds of thou‐
sands of dollars; lied to the IRS, the court, and his wife; and
solicited Mann (jokingly, he maintained) to kill one of Caira’s
lawyer’s dogs when the lawyer moved to withdraw from the
case. The jury even learned that the dog’s name was Jackson.
Caira also admitted that the code in Mann’s text messages
referred to the murder plot. The defense concluded by put‐
ting on two more witnesses, including Fawell, who testified
about the text‐message conversation.
At the conclusion of the defense’s case, the parties
collaborated on jury instructions. Caira’s counsel objected to
the inclusion of a list of factors that could corroborate intent,
but he did not object to the instructions’ discussion of the
mental state required to convict. As we noted earlier, the jury
found Caira guilty on all counts and he was sentenced to life
in prison plus twenty years.
6 No. 12‐2631
II
Caira’s appeal relates only to his conviction. He argues
first that the district court’s ruling that his testimony was a
“condition precedent” to Fawell’s testimony violated his
Fifth Amendment right against compelled self‐incrimination.
Second, he argues that the jury instructions failed to explain
the mental state required to convict for conspiracy to commit
murder and solicitation of murder, and that these erroneous
instructions prejudiced his substantial rights. We take up
these two arguments in turn.
1. Fifth Amendment
We begin with the question whether the district court
erred in ruling that Caira’s testimony was a necessary predi‐
cate for Fawell’s proffered account. Ordinarily, we review the
propriety of an evidentiary ruling for an abuse of discretion.
United States v. Wilson, 307 F.3d 596, 599 (7th Cir. 2002). Caira,
however, argues that the district court’s ruling violated his
Fifth Amendment right to remain silent. To the extent that a
person raises a genuine constitutional claim, our review is de
novo, but if the litigant has simply dressed an evidentiary
ruling in constitutional clothing, we continue to use the
abuse‐of‐discretion standard. As we explain below, Caira’s
arguments do not trigger more than deferential review. Id.
Under the Federal Rules of Evidence, hearsay is defined
as “a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers
in evidence to prove the truth of the matter asserted in the
statement.” FED. R. EVID. 801(c). The statements at issue here
were made during a conversation between Fawell and Caira,
and they were about text messages that Caira had received
No. 12‐2631 7
from Mann. In those statements, Caira supposedly told
Fawell that he had received Mann’s messages; Fawell then
advised him to stay away from Mann. Neither Caira nor
Fawell made his statements “while testifying at the current
trial,” and so the first part of Rule 801(c)’s definition was
met. The question is whether any of the contested statements
was offered for the truth, or if instead it was offered for an‐
other purpose. In our view, the more natural interpretation is
that these statements were offered to show Caira’s state of
mind, not to prove the point that he actually had received
text messages from Mann or that he should avoid Mann. Be‐
cause the statements were not offered to prove the truth of
the matter asserted, the district court erred by characterizing
them as hearsay.
That conclusion in itself, however, does not compel a
ruling in Caira’s favor. He urges that this evidentiary error
had the effect of forcing him to take the stand, and further
that this compelled testimony necessarily violated his rights
under the Fifth Amendment. But the link between an
evidentiary error and a constitutional violation cannot be
drawn so readily. As we noted in United States v. Paladino,
401 F.3d 471 (7th Cir. 2005), the Supreme Court has held that
there is no compulsion as the Fifth Amendment uses that
concept in this situation, because the defendant retains the
option of standing on his right not to testify and seeking
appellate correction of the evidentiary ruling. Id. at 477,
citing United States v. Luce, 469 U.S. 38, 41–43 (1984).
Caira asks us to overrule Paladino on the ground that it
unjustifiably extends the Supreme Court’s reasoning in Luce,
a case in which the defendant did not testify at trial. In con‐
trast, in both Paladino and the present case, the defendant
8 No. 12‐2631
did testify. Caira is correct that Luce addresses the situation
in which the defendant elects not 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, 469 U.S. at 43 (“We hold that to
raise and preserve for review the claim of improper im‐
peachment with a prior conviction, a defendant must testi‐
fy.”). The question is whether we were correct in Paladino to
apply the Luce principle (reaffirmed in Ohler v. United States,
529 U.S. 753, 759 (2000)) to cases in which the defendant does
testify in response to an evidentiary error by the district
court. We are satisfied that the answer is yes.
As we noted in Paladino, “there is no compulsion in such
a case, since the defendant has the option of refusing to testi‐
fy and instead, if he is convicted, of obtaining appellate cor‐
rection of the erroneous evidentiary ruling and with it a new
trial.” 401 F.3d at 477. We acknowledged that “this rule puts
the defendant to a hard tactical choice,” but we were con‐
cerned that “the alternative would be to give him two bites
at the apple: testify, and try to win an acquittal; if that fails,
appeal and get a new trial on the basis of the judge’s ruling.”
Id.; see also Wilson, 307 F.3d at 599–600 (rejecting defendant’s
argument that such a choice impermissibly puts defendant
“on the horns of a dilemma”). We see no reason to jettison
that logic. Cf. McGautha v. California, 402 U.S. 183, 217 (1971)
(concluding that “the policies of the privilege against com‐
pelled self‐incrimination are not offended when a defendant
in a capital case yields to the pressure to testify on the issue
of punishment at the risk of damaging his case on guilt”).
As in Luce and Paladino, the district court’s decision here
left the defendant with a difficult choice, but a choice none‐
No. 12‐2631 9
theless. Caira’s decision was voluntary, strategic and fully
informed—that is, it was the antithesis of compulsory. Had
the jury believed him, he might be a free man today. But it
did not. We are satisfied that Caira’s decision to testify was
based on much more than the district court’s evidentiary rul‐
ing. That is not unusual: “an accused’s decision whether to
testify ‘seldom turns on the resolution of one factor[.]’” Luce,
469 U.S. at 42 (quoting New Jersey v. Portash, 440 U.S. 450, 467
(1979) (Blackmun, J., dissenting)).
Understood as an ordinary evidentiary error, the
mistaken decision to exclude Fawell’s testimony would not
call for reversal unless it affected Caira’s substantial rights.
See FED. R. CRIM. P. 52(a). It did not have such an effect. First,
the proffered testimony concerned only a small part of
Caira’s overall defense. Weighed against the incriminating
text messages, the fact that the targets of the alleged plot
were the prosecutor and DEA agent involved in Caira’s own
case, and the testimony of Mann and Ruiz, Fawell’s
testimony would not have been likely to influence the jury’s
verdict. In addition, Caira elected to testify before offering
his other witnesses. Cf. Brooks v. Tennessee, 406 U.S. 605, 610–
11 (1972) (striking down state statute requiring defendant to
testify first or not at all because the rule prevented defendant
from assessing the necessity of his testimony). When Caira
took the stand, his testimony touched only briefly on the
conversation with Fawell and went into much greater detail
about his interactions with Mann. Caira explains this by
saying that once he decided to take the stand, he had to
testify about more than the conversation with Fawell or else
the jury would have wondered why he did not address the
rest of the government’s case. But the fact remains that Caira
used his opportunity to testify to bolster his side of the story
10 No. 12‐2631
before the jury. In the end, Caira cannot show that the
mistaken exclusion of one line of evidence had the necessary
effect on his rights.
Our conclusion is bolstered by the fact that if Fawell’s tes‐
timony were really so vital to his case, Caira could have di‐
rectly challenged its exclusion on appeal. Wrongful exclu‐
sion of material evidence can, in some circumstances,
amount to a Fifth Amendment violation if it deprives the de‐
fendant of due process. This is a distinct problem from the
one raised by compulsory self‐incrimination. We do not have
before us a case in which the defendant’s only exculpatory
evidence other than his own testimony is wrongfully ex‐
cluded by the district court, and so we express no opinion
about that situation. We hold only that because Caira’s deci‐
sion to testify was voluntary, under the governing Supreme
Court cases there is no merit to his argument that his testi‐
mony was compelled in violation of the Fifth Amendment
privilege against self‐incrimination. Moreover, the eviden‐
tiary error we have identified did not affect his substantial
rights.
2. Jury Instructions
Caira’s second argument is that he was prejudiced by ju‐
ry instructions that failed to explain the required mental
states. But at trial Caira did not raise the challenges that he
now makes. Our review is therefore only for plain error. FED.
R. CRIM. P. 30(d), 52(b); see also United States v. Jackson, 479
F.3d 485, 491 (7th Cir. 2007). As the Supreme Court explained
in Puckett v. United States, 556 U.S. 129 (2009), plain‐error re‐
view proceeds in four steps:
No. 12‐2631 11
First, there must be an error or defect—some sort
of “[d]eviation from a legal rule”—that has not
been intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. … Second,
the legal error must be clear or obvious, rather
than subject to reasonable dispute. … Third, the
error must have affected the appellant’s substan‐
tial rights, which in the ordinary case means he
must demonstrate that it “affected the outcome of
the district court proceedings.” … Fourth and fi‐
nally, if the above three prongs are satisfied, the
court of appeals has the discretion to remedy the
error—discretion which ought to be exercised only
if the error “ ‘seriously affect[s] the fairness, integ‐
rity or public reputation of judicial proceedings.’ “
556 U.S. at 135 (internal citations omitted; emphasis in origi‐
nal). Applying this test, which originated in United States v.
Olano, 507 U.S. 725 (1993), we have observed that “it is rare
that we reverse a conviction on the basis of an improper jury
instruction to which there was no objection.” United States v.
Wheeler, 540 F.3d 683, 689 (7th Cir. 2008); see also United
States v. Griffin, 84 F.3d 912, 925 (7th Cir. 1996) (“Our plain
error review is particularly light‐handed in the context of
jury instructions.”).
Caira’s complaints focus on the court’s instructions on so‐
licitation and conspiracy. We look first at the solicitation in‐
struction, which was as follows:
In order for the defendant to be found guilty, the
government must prove each of the following el‐
ements beyond a reasonable doubt:
12 No. 12‐2631
First, the defendant solicited, commanded, in‐
duced, or endeavored to persuade another to en‐
gage in conduct constituting a violent felony in vi‐
olation of the laws of the United States;
Second, the defendant intended that another per‐
son engage in conduct constituting a violent felo‐
ny in violation of the laws of the United States un‐
der circumstances strongly corroborative of that
intent.
Strongly corroborative circumstances may include:
[examples listed]. The above listed factors are not
exclusive factors for consideration, nor are these
factors conclusive indicators of intent. The sur‐
rounding circumstances in general must indicate
that the defendant was serious when he solicited
the criminal conduct … .
We find no plain error in this instruction. In order to
meet its burden of proof on the solicitation charge, the gov‐
ernment was required to establish (1) strongly corroborative
circumstances that Caira intended to arrange the murders
and (2) that Caira solicited, commanded, induced, or other‐
wise tried to persuade another person to carry out the crime.
18 U.S.C. § 373; United States v. Hale, 448 F.3d 971, 982 (7th
Cir. 2006). The instruction we have reproduced adequately
conveys those statutory requirements. It informs the jury
that it must find that the defendant “intended” that another
person engage in conduct constituting a violent felony. It
stresses that the “surrounding circumstances in general must
indicate that the defendant was serious when he solicited the
criminal conduct.” The court was not required to include
murder‐specific terms such as “premeditated” and “malice
No. 12‐2631 13
aforethought”—indeed, because the crime charged was so‐
licitation of violent crime, the inclusion of such terms would
have been unnecessary and distracting. See United States v.
Hill, 252 F.3d 919, 923 (7th Cir. 2001) (“Unless it is necessary
to give an instruction, it is necessary not to give it, so that the
important instructions stand out and are remembered.”).
The conspiracy instruction requires more discussion. On
conspiracy, the court had this to say:
A conspiracy is an agreement between two or
more persons to accomplish an unlawful purpose.
To sustain the charge of conspiracy, the govern‐
ment must prove:
First, that the conspiracy as charged in Count 1 ex‐
isted, and
Second, that the defendant knowingly became a
member of the conspiracy with an intention to fur‐
ther the conspiracy, and
Third, that an overt act was committed by at least
one conspirator in furtherance of the conspiracy
… .
The alleged conspiracy was the plot to murder AUSA
Gillers and Special Agent Bagley. This is important, because
“in order to sustain a judgment of conviction on a charge of
conspiracy to violate a federal statute, the [g]overnment
must prove at least the degree of criminal intent necessary
for the substantive offense itself.” United States v. Feola, 420
U.S. 671, 686 (1975). Yet the court never told the jury that it
had to find that Caira had the necessary state of mind for a
murder conviction—premeditation and malice aforethought.
See United States v. Brown, 518 F.2d 821, 825–26 (7th Cir.
14 No. 12‐2631
1975). On the other hand, the instruction tracked Instruction
5.08(A) of 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 this instruction or the general failure of
the instructions to tell the jurors that a conspiracy to murder
exists only if the conspirators acted with the prescribed men‐
tal state was erroneous, Caira must also show that the error
prejudiced his substantial rights and “seriously affects the
fairness, integrity, or public reputation of judicial proceed‐
ings.” Olano, 507 U.S. at 736. This is a heavy burden.
When a defendant contends that an instruction was defi‐
cient, the key question is the effect of the error. United States
v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988). A jury charge that
fails properly to describe an element of the crime is not al‐
ways considered reversible error. See Neder v. United States,
527 U.S. 1, 8–10 (1999) (holding that instructional error is
subject to harmless‐error review); Pope v. Illinois, 481 U.S.
497, 502–04 (1987). In Neder, the Court held that the verdict
could stand in the face of an instruction that omitted an ele‐
ment of the crime if it appeared “beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.” 527 U.S. at 15, citing Chapman v. California, 386
U.S. 18, 24 (1967). That is the test we will apply to Caira’s
conviction.
The jury was told that it needed to find a conspiracy,
which the instructions defined as “an agreement between
two or more persons to accomplish an unlawful purpose.”
There was ample evidence to permit it to find that the plot to
kill ADA Gillers and Agent Bagley met that definition. In
No. 12‐2631 15
finding that Caira “knowingly became a member of the con‐
spiracy with an intention to further the conspiracy,” the jury
necessarily had to find that Caira joined the conspiracy with
an intention to further the plan to kill Gillers and Bagley. The
testimony from Mann and Ruiz, coupled with Caira’s text
messages, provide strong support for the finding that Caira
joined the conspiracy knowing its object and intending it to
succeed.
Especially under plain‐error review, we must assess the
effect of any instructional error against the backdrop of the
entire trial. Here, Caira’s intent was the main focus for both
parties. As his own appellate brief indicates, “closing argu‐
ments [made] clear that Caira’s mental state was the primary
point of contention.” Caira argues that a “juror who read the
text messages could easily have thought … that [Caira] had
some degree of nebulous interest that might constitute
‘agreement’” without realizing that the government needed
to show that Caira “manifest[ed] the heightened mental state
of malice aforethought and premeditation.” But Caira’s hav‐
ing a “nebulous interest” was not a version of events pre‐
sented to the jury. Rather, the jury heard two distinct story‐
lines: one in which Caira coordinated hits against Gillers and
Bagley, and one in which the plot was all Mann and Ruiz’s.
The jury knew exactly what it was being asked to decide; it
simply did not buy Caira’s story.
Even if error in the instructions prejudiced Caira’s sub‐
stantial rights, we would not reverse unless “the error seri‐
ously affects the fairness, integrity, or public reputation of
judicial proceedings.” Olano, 507 U.S. at 736–37. It did not.
Caira’s own testimony undermines his argument that he
16 No. 12‐2631
never meant to have any murders committed. For example,
this exchange occurred during Caira’s cross‐examination:
Q: The “people to be underwritten” was a code
that you were using with Mr. Mann back and forth
in text messages to refer to Patrick Bagley and
Shoshana Gillers, isn’t that right?
A: The term underwritten, he was referring to con‐
tracts in general, and that was a term of having
people underwritten to be killed that he came up
with.
Q: So it’s a yes?
A: Yes.
If that were not enough, there was also this exchange:
Q: Who is they?
A: They is in reference to Mann telling me he had
people that had research [sic] where these people
lived.
Q: And according to you on direct examination,
you had no intention of harming anybody, right?
A: No intention at all.
Q: Did you tell Jack Mann on December 7th: No
more people to be underwritten?
A: No, I did not.
Q: Did you tell him Pat was not first to be insured?
A: No.
Q: Did you tell him do no harm to Shoshana
Gillers?
No. 12‐2631 17
A: No.
Q: What you said is: You know the big one. Right?
A: Right, because he had said that he had done re‐
search that he wanted money for it, so he should
have known who these people were already.
Q: And you’re telling him that “they get info,”
right?
A: He told me he had people, which is “they,” that
would have got info for this whole murder thing.
Q: The murder thing that you say you never want‐
ed to happen.
A: Exactly.
In light of these incriminating admissions, even if the er‐
roneous instruction prejudiced Caira, the conviction does
not seriously affect the fairness, integrity, or public reputa‐
tion of judicial proceedings. We therefore AFFIRM the judg‐
ment of the district court.