United States v. Scott, David

In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-3130, 00-3149, 00-3150

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID SCOTT, CARL BUCHHOLZ,
and GREGORY SUMPTER,

Defendants-Appellants.

Appeals from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 99-CR-30014--Jeanne E. Scott, Judge.

ARGUED FEBRUARY 27, 2001--DECIDED October 4, 2001

Before COFFEY, RIPPLE and EVANS, Circuit
Judges.

RIPPLE, Circuit Judge. A jury convicted
the defendants, David Scott, Carl
Buchholz and Gregory Sumpter, of
possession with intent to distribute
marijuana in violation of 21 U.S.C. sec.
841. Scott and Buchholz also were charged
with, and convicted of, carrying a
firearm during a drug trafficking
offense, in violation of 18 U.S.C. sec.
924(c). The defendants now appeal their
convictions on numerous grounds. For the
reasons set forth in the following
opinion, we affirm the judgments of the
district court.

I

BACKGROUND

A. Facts

In the summer of 1996, Chad Little and
friends, Tommy Smith and David Scott,
discussed the difficulty of obtaining
marijuana in the St. Louis area. Little
agreed to contact a college friend who
might be able to assist them in procuring
marijuana for their own use and for
resale. Little’s college friend,
unbeknownst to Little, was cooperating
with law enforcement agents and put
Little in touch with undercover officer
Kelly Cain of the Drug Enforcement
Administration. Little then engaged in
ongoing negotiations with Cain to obtain
up to 300 pounds of marijuana for
redistribution in the St. Louis area.

To fund the venture, Little enlisted the
assistance of Scott, Sumpter and
Buchholz. For his part, Little
contributed $500 and a motorcycle toward
the purchase. The remainder of the
purchase price was supplied by Scott
($500), Sumpter ($20,000) and Scott
Carver ($3,000). Also, as part of
thepurchase arrangements, Little, Scott
and Buchholz were to carry firearms to
protect both the collateral and the
contraband. On May 6, 1997, Little,
Scott, Buchholz and Sumpter traveled from
St. Louis, to Lincoln, Illinois to
purchase the marijuana. Upon arriving in
Lincoln and presenting the money and
other items, all were arrested.

After their arrest, both Buchholz and
Sumpter made statements concerning the
nature of the arrangement. Specifically,
Buchholz stated that he had assisted
Little in renting a trailer to transport
Little’s motorcycle and that he knew that
Little was going to use the motorcycle as
partial payment for a marijuana deal.
Buchholz, however, did not indicate when
he had learned that the motorcycle would
be used to purchase marijuana. According
to the interviewing officers’ testimony,
Buchholz also said that Little had told
him that he (Buchholz) might be needed to
drive Little’s vehicle and that his role
was to provide security.

Sumpter told the interviewing officers
that Little had been talking about the
marijuana deal for about a week, that the
deal was for a few hundred pounds, and
that the motorcycle and cash were to be
traded for marijuana. Sumpter stated that
his role was to inspect the marijuana.
Although Sumpter was unsure of his
compensation for these efforts, he
understood that Little would "take care
of him." Tr. 766.

All of the defendants subsequently were
charged with possession with intent to
distribute marijuana; Buchholz and Scott
also were charged with carrying a firearm
during a drug trafficking offense. Little
pleaded guilty to the charge, as well as
federal money laundering charges pending
in Missouri. The remaining defendants,
Scott, Buchholz and Sumpter, pleaded not
guilty and proceeded to trial.

B. District Court Proceedings

1. Voir dire

It came to the attention of the district
court that Juror 99 had expressed concern
that the defendants had access to the
information provided on the juror
questionnaires. Counsel for the
defendants requested that the court ques
tion Juror 99 about her comments, outside
the presence of the other jurors. The
district court granted the defendants’
request. During the questioning, Juror 99
stated that she did not "think concern is
the right word," but rather was curious
as to "[w]hy the defendants were able to
look through our questionnaires." Tr.
190. She further stated that the court
had satisfied her concern or curiosity,
and she believed that she could be fair
and impartial.

Following the juror’s questioning,
counsel for the defense, who had
exhausted their allotment of peremptory
challenges, requested that the juror be
removed for cause. The district court
first intimated that it might grant the
request if the defendants would agree to
a trial by eleven as the jury pool had
been exhausted. However, on
reexamination, the district court
determined that juror curiosity did not
support a "for cause" challenge.
Consequently, the court denied the
request.
2. Witness testimony

During the trial, the key evidence was
provided by Little and several drug
enforcement agents. As a result, the pri
mary defense strategy was to attack the
credibility of Little and the agents to
whom Buchholz and Sumpter had made their
statements.

To counter the attacks on Little’s
credibility and the suggestions that he
was biased in favor of the Government,
the Government introduced the testimony
of Special Agent William Scheitlin of the
Internal Revenue Service concerning
Little’s cooperation in an unrelated drug
and money laundering investigation in St.
Louis, Missouri ("the St. Louis
case")./1 Special Agent Scheitlin
testified, over objection, that Little
had cooperated in the prior case and
that, due in part to Little’s
cooperation, several persons were
indicted and one of the main targets of
the investigation had pleaded guilty to
various criminal offenses. Immediately
following Special Agent Scheitlin’s
testimony, the district court gave the
following instruction:

Ladies and gentlemen of the jury, the
testimony of this officer that as a
result of Mr. Little’s assistance certain
individuals entered pleas of guilty in
the Missouri investigation does not give
any rise to any inference that these
Defendants here on trial are guilty.
[T]he testimony is merely admitted to
substantiate some of what Mr. Little has
testified to. Again, it does not give
rise to any inference that these
defendants are, in fact, guilty.

Tr. 724-25.

The defendants also mounted an attack on
the credibility of the arresting
officers. Specifically, the defense
suggested that the substance of the
statements allegedly made by Buchholz and
Sumpter came from information that
thearresting officers had received in an
earlier briefing about the transaction,
and that the statements were not the
words of the defendants. The defense also
focused on the officers’ questioning
methods, their motivation in failing to
use audio or visual recording devices,
and their intent in discarding their
original notes after completing the final
report.

3. Instructions

At the instruction conference, the
defendants tendered Pattern Federal Jury
Instruction for the Seventh Circuit 5.11
("Pattern Instruction 5.11"). Pattern
Instruction 5.11 states:

(a)

A defendant’s presence at the scene of
a crime and knowledge that a crime is
being committed is not alone sufficient
to establish the defendant’s guilt.
 [A defendant’s association with
conspirators [or persons involved in a
criminal enterprise] is not by itself
sufficient to prove his/her participation
or membership in a conspiracy [criminal
enterprise].]

(b)

If a defendant performed acts that
advanced a criminal activity but had no
knowledge that a crime was being
committed or was about to be committed,
those acts alone are not sufficient to
establish the defendant’s guilt.

Pattern Fed. Jury Instruction for the 7th
Cir. 5.11. The court believed that either
the first or second paragraph of (a) was
appropriate, but not both. As a
compromise position, the district court
gave as its instruction the first
paragraph of (a) and all of (b).

4. Closing arguments

Prior to closing argument, the
Government sought permission from the
district court to argue to the jury that
Buchholz’s and Sumpter’s statements to
law enforcement agents were confessions.
The defendants objected, but the district
court allowed the Government to make the
argument to the jury. The defendants,
stated the court, were free to argue the
opposite. During closing arguments,
therefore, the Government’s attorney
attempted to characterize the statements
as confessions.

The Government also spent some time
during closing argument addressing the
defendants’ attack on the credibility of
Little and of the law enforcement
officers who testified. With respect to
the officers, the Government argued:

You can take--certainly take all three of
the defense closings that you’ve heard
today, lump them in to two areas:
incessant reference to Mr. Little, and
out and out perjury by four law
enforcement officers who testified before
you. Those are the two areas that have
been referred to over and over and over
and over again.

. . .

The clear implication from [Sumpter’s
counsel’s] closing, which has stemmed
from the very beginning, from the
opening, before any of these witnesses
even testified, was that Inspector Eck
and Officer Burke came in here, committed
crimes by perjuring themselves.

Tr. 1322. The defense did not object to
any of these statements.

The jury subsequently found the
defendants guilty as charged on all
counts.

II

DISCUSSION

A. Testimony of Special Agent Scheitlin

On appeal, the defendants first argue
that the district court allowed the
Government to engage in impermissible
"bolstering" of Little’s testimony that
deprived them of a fair trial.
Specifically, the defendants’ question
the district court’s admission of
testimony by Special Agent Scheitlin
concerning Little’s cooperation in the
St. Louis case; according to the agent’s
testimony, Little’s testimony in the St.
Louis case assisted in obtaining
convictions and indictments against those
involved. The district court found
controlling this court’s decision in
United States v. Lindemann, 85 F.3d 1232
(7th Cir. 1996), and therefore overruled
the defendants’ objection to the
testimony. We review the district court’s
admission of evidence for an abuse of
discretion. See United States v. Gibson,
170 F.3d 673, 680 (7th Cir. 1999).

"’Bolstering’ is the practice of
offering evidence solely for the purpose
of enhancing a witness’s credibility
before that credibility is attacked."
Lindemann, 85 F.3d at 1242. This type of
evidence is generally inadmissible
because of the potential for increasing
the length of trials and for dulling the
intensity with which a jury will evaluate
the underlying testimony. See id. The
same is not true, however, of evidence
offered to rehabilitate a witness after
his credibility has been questioned. See
id. at 1243. When a party has attacked a
witness’ credibility, rehabilitation
evidence is admissible. Id.
 In Lindemann, we addressed the operation
of bolstering and rehabilitation as they
apply to the testimony of a cooperating
witness. There, Lindemann had suggested
that a witness, Burns, "falsely
implicated [Lindemann] to obtain a plea
deal," that is, that Burns was biased in
favor of the Government. Id. We held
that, when the defense makes such an
attack, "the government [is] entitled to
introduce evidence to rehabilitate [the
witness] on the issue." Id. Furthermore,
because the Federal Rules of Evidence do
not consider bias a collateral issue, we
held that "it was permissible for
evidence on this issue to be extrinsic in
form." Id. The only limitations,
therefore, on this type of testimony was
the relevance standard set forth in
Federal Rule of Evidence 402/2 and the
prejudice standard set forth in Federal
Rule of Evidence 403./3 Applying these
standards to Burns’ testimony, we stated:

Here we conclude that the admission of
evidence regarding Burns’ cooperation in
other cases was relevant. The evidence
specifically rebutted the allegation that
Burns was biased out of self-interest in
Lindemann’s case: Burns’ successful
participation in numerous other cases
meant that at the time he was negotiating
over his plea deal, he had lots of
information to use as bargaining chips.
That fact was relevant under the
standards of [Federal Rule of Evidence]
402 because it made less probable the
assertion that Burns was lying in
Lindemann’s case out of self-interest.
Finally, the district court immediately
warned the jury that it was not to infer
Lindemann’s guilt from the fact that
other indicted individuals had pleaded
guilty. Thus the evidence was used only
to assess Burns’ credibility, not as
evidence of Lindemann’s guilt.

Id. at 1243-44.

In United States v. Curry, 187 F.3d 762
(7th Cir. 1999), we had another
opportunity to address the admissibility
of evidence concerning a witness’ prior
cooperative efforts. In Curry, as in
Lindemann, the defense had attacked the
credibility of a cooperating witness "by
suggesting that she had falsely
implicated [the defendant] in order to
obtain a favorable plea agreement." Id.
at 766-67. In light of this attack, the
Government "was permitted to explain to
the jury" that the witness’ testimony
also had implicated another co-
conspirator, who had pleaded guilty. Id.
at 767. On appeal, we held that the
district court’s admission of the
testimony and explanation was not an
abuse of discretion. We stated that, when
a cooperating witness’ testimony "will
help the Government obtain more than one
conviction (through a guilty plea or
otherwise),"

[t]hat is enough to create the multiple
"chips" to which Lindemann referred. In
addition, [the witness’] history of
successful cooperation was relevant
evidence under the standards of Federal
Rule of Evidence 402 because the fact
that she had cooperated against Pulley,
who then pleaded guilty, made it more
probable that she was telling the truth
about Curry.

Id.

We believe Lindemann and Curry control
the present case. Here, Little had
information to provide the Government
with respect to these defendants and to
the defendants in the St. Louis case;
consequently, Little had multiple
"bargaining chips" to use in his plea
negotiations. This fact, introduced
through Special Agent Scheitlin, made it
less probable that Little was lying out
of self-interest against the defendants.
See Lindemann, 85 F.3d at 1243. Because
it made a fact in issue more or less
probable, the evidence was relevant and,
therefore, presumptively admissible under
Federal Rule of Evidence 402.
Furthermore, because the district court
gave a cautionary instruction that
focused the jury on Little’s credibility
as opposed to the defendants’ guilt,
there is a diminished chance that the
evidence resulted in undue prejudice for
the purposes of Federal Rule of Evidence
403. Because the evidence was relevant
and because the district court took steps
to minimize any unfair prejudice, we do
not believe that the district court
abused its discretion in admitting the
evidence.

The defendants acknowledge the holdings
of Lindemann and Curry but claim that
they are distinguishable from the present
case on several grounds. First, the
defendants state that in Lindemann the
witness testified to his own prior
cooperative efforts whereas here an agent
was called to testify about Little’s
cooperation. "This is an important
difference . . .," claim the defendants,
"because the basis for allowing the
testimony about other cooperation is
related to the cooperating witness’ state
of mind." Appellants’ Br. at 27. We do
not believe that this is a material
distinction. In Lindemann, we approved
the use of "extrinsic" evidence to
establish a witness’ credibility after
attack; we did not limit it to extrinsic
evidence from the witness himself.
Lindemann, 85 F.3d at 1243. Furthermore,
other courts have approved the use of
evidence other than a witness’ own
testimony to bolster a witness’
credibility. See, e.g., United States v.
Martinez, 775 F.2d 31, 38 (2d Cir. 1985)
(approving the use of the witness’ own
testimony and letters from Government
attorneys to bolster the witness’
credibility after attack).

The defendants also attempt to
distinguish Lindemann on the ground that
Lindemann involved the cooperation of the
witness in the investigation of the same
scheme or conspiracy that led to charges
against the defendant. Again, there is no
basis in Lindemann or Curry for drawing
this distinction. Those cases hold that
the evidence of cooperation in other
cases is relevant "because the witness’s
’successful participation in numerous
other cases meant that at the time he was
negotiating over his plea deal he had
lots of information to use as bargaining
chips’ and thus was less likely to be
lying in [this particular] case out of
self-interest." Curry, 187 F.3d at 767
(quoting Lindemann, 85 F.3d at 1243). The
important aspect of those cases is that
the defendant had multiple "bargaining
chips" to use with the Government, not
that the "chips" are related to the same
case.

The defendants further urge that the
evidence was not valuable because Little
already had served his sentence in the
St. Louis case, but had not been
sentenced on the drug and firearm
charges. Consequently, they maintain,
there was nothing about his prior
cooperation that made it less likely that
he was lying about the defendants. Again,
Lindemann and Curry do not admit of such
a distinction. In Lindemann, we stated
that "Burns’ successful participation in
numerous other cases meant that at the
time he was negotiating over his plea
deal, he had lots of information to use
as bargaining chips." Lindemann, 85 F.3d
at 1243 (emphasis added). The operative
time frame is when the deal is struck,
not when the testimony is given. In the
present action, Little agreed to
cooperate in the St. Louis investigation
at the same time he agreed to cooperate
in the present case. Consequently, that
Little had served his sentence in the St.
Louis case at the time he testified is of
no consequence in determining the
admissibility of evidence to support his
credibility./4

Because the evidence was admissible and
not unduly prejudicial, we do not believe
the district court abused its discretion
in admitting Special Agent Scheitlin’s
testimony. However, even if we had
reached the opposite conclusion, any
error was harmless. Here, as in Curry,
"[t]he evidence against [the defendants]
was overwhelming, and there were a host
of corroborating witnesses whose
testimony would have helped the jury to
evaluate [Little’s] credibility." Curry,
187 F.3d at 767. Consequently, we find no
reversible error in the district court’s
ruling.

B. Instructional Error

The defendants next focus on alleged
instructional error. In the district
court, the defendants tendered
PatternInstruction 5.11, which states:

(a)

A defendant’s presence at the scene of
a crime and knowledge that a crime is
being committed is not alone sufficient
to establish the defendant’s guilt.

[A defendant’s association with
conspirators [or persons involved in a
criminal enterprise] is not by itself
sufficient to prove his/her participation
or membership in a conspiracy [criminal
enterprise].]

(b)
 If a defendant performed acts that
advanced a criminal activity but had no
knowledge that a crime was being
committed or was about to be committed,
those acts alone are not sufficient to
establish the defendant’s guilt.

The district court did not believe that
all of Pattern Instruction 5.11 was
warranted. It therefore agreed to give
the "mere presence" portion of paragraph
(a) together with paragraph (b). The
defendants’ maintain, however, that the
district court’s failure to include the
second paragraph of (a), the "mere
association" instruction, deprived them
of a fair trial.

With respect to a district court’s duty
to give a particular jury instruction,
this court has stated:

It is the well-settled law of this
Circuit that a defendant is entitled to a
jury instruction on his or her particular
theory of defense if: "(1) the
instruction represents an accurate
statement of the law; (2) the instruction
reflects a theory that is supported by
the evidence; (3) the instruction
reflects a theory which is not already
part of the charge; and (4) the failure
to include the instruction would deny the
appellant a fair trial."

United States v. Linwood, 142 F.3d 418,
422 (7th Cir. 1998) (quoting United
States v. Edwards, 36 F.3d 639, 645 (7th
Cir. 1994)). Although a district court’s
refusal to give an instruction on a
theory of the defense is reviewed de
novo, a district court has "’substantial
discretion’" regarding "’the specific
wording of the instructions, and in
rejecting a proposed instruction, so long
as the essential points are covered by
the instructions given.’" United States
v. Koster, 163 F.3d 1008, 1011 (7th Cir.
1998) (quoting United States v. Scott, 19
F.3d 1238, 1245 (7th Cir. 1994)).

Evaluating the instruction according to
these standards, we find no misstep on
the part of the district court. There is
no question that paragraph two of Pattern
Instruction 5.11(a) represents an
accurate statement of the law. See, e.g.,
United States v. Percival, 756 F.2d 600,
610 (7th Cir. 1985) (reaffirming the
proposition that "mere association" with
those involved in criminal activity is
not enough to prove guilt). Furthermore,
it is at least arguable that the instruc
tion was warranted by the evidence, given
that most of the defendants knew each
other socially before planning the
marijuana purchase./5 However, we do
not believe that the defendants have
established that "the instruction
reflects a theory which is not already
part of the charge" or that the failure
to include the precise language of the
instruction deprived them of a fair
trial. Linwood, 142 F.3d at 422.

The "mere association" instruction is
designed to inform the jury that guilt
should not follow from one’s association
with those who commit crimes; guilt may
only be found when the defendant
knowingly participated in the criminal
activity. In this case, the instructions
adequately apprised the jury of this
principle. The instructions given to the
jury made it clear both that the
defendants must have engaged in the
conduct knowingly, and that the
determination of knowing participation
must be individual to each defendant.
Specifically, the district court charged
that the jury must find that "the
defendants knowingly or intentionally
attempted to possess the marijuana."
R.91, Government’s Inst. 22. "To ’attempt,’"
the court continued, "means that the
defendants knowingly took a substantial
step toward the commission of the offense
with the intent to commit that offense."
Id., Government’s Inst. 24. The aiding
and abetting instruction also spoke to
the knowledge requirement; it stated:
"Any person who knowingly aids or abets
the commission of a crime is guilty of
that crime. However, that person must
knowingly associate himself with the
criminal venture, participate in it, and
try to make it succeed." Id.,
Government’s Inst. 31. "[K]nowingly," the
jury was informed, meant that the
"defendants realized what they were doing
and were aware of the nature of
theirconduct, and did not act through
ignorance, mistake or accident." Id.,
Government’s Inst. 28. Consequently, the
court further instructed, "[i]f a
defendant performed acts that advanced a
criminal activity but had no knowledge
that a crime was being committed or was
about to be committed, those acts alone
are not sufficient to establish the
defendant’s guilt." Id., Defendant’s
(Scott) Inst. 1 (as modified).

The district court also took pains to
ensure that each defendant’s conduct was
evaluated separately and that the acts of
one were not imputed to the other. It
informed the jury that it "must give
separate consideration both to each count
and to each defendant." Id., Government’s
Inst. 21. The court continued:

You must consider each count and the
evidence relating to it separate and
apart from every other count.

You should return a separate verdict as
to each defendant and as to each count.
Your verdict of guilty or not guilty of
an offense charged in one count should
not control your decision as to that
defendant under any other count.

Id.

We believe that these instructions,
taken together, accomplished the same
function as the "mere association"
instruction. They told the jury that it
was not enough that the defendants were
present at a crime scene or were
unwitting participants in a criminal
activity; they were guilty only if they
each knowingly participated in some part
of the criminal act./6

C. Prosecutorial Misconduct

1.
The defendants next maintain that
several of the Government’s statements in
closing arguments constituted
prosecutorial misconduct that resulted in
the defendants being denied a fair trial.
The defendants believe that the
Government’s argument posed an improper
alternative to the jury: In order to
convict the defendants, the jury had to
find that the investigating officers
committed perjury. Specifically, the
defendants point to two sections of the
Government’s closing argument, which
states:

You can take--certainly take all three of
the defense closings that you’ve heard
today, lump them in to two areas:
incessant reference to Mr. Little, and
out and out perjury by four law
enforcement officers who testified before
you. Those are the two areas that have
been referred to over and over and over
and over again.

. . .

The clear implication from [Sumpter’s
counsel’s] closing, which has stemmed
from the very beginning, from the
opening, before any of these witnesses
even testified, was that Inspector Eck
and Officer Burke came in here, committed
crimes by perjuring themselves.

Tr. 1322.

Usually, in reviewing improper comments
by a prosecutor, this court undertakes a
two-step inquiry. "[W]e first determine
if the comments, looked at in isolation,
were improper." United States v. Morgan,
113 F.3d 85, 89 (7th Cir. 1997) (citing
United States v. Severson, 3 F.3d 1005,
1014 (7th Cir. 1993); United States v.
Badger, 983 F.2d 1443, 1450 (7th Cir.
1993)). "If they are improper, we must
then examine the record as a whole to
determine if the comments deprived [the]
defendant[s] of a fair trial." Id. In
making this second determination, this
court considers: "1.) the nature and
seriousness of the misconduct; 2.) the
extent to which the comments were invited
by the defense; 3.) the extent to which
any prejudice was ameliorated by the
court’s instruction to the jury; 4.) the
defense’s opportunity to counter any
prejudice; and 5.) the weight of the
evidence supporting the conviction."
United States v. Amerson, 185 F.3d 676,
686 (7th Cir.) (citing United States v.
Kelly, 991 F.2d 1308, 1315) (7th Cir.
1993)), cert. denied, 120 S. Ct. 549
(1999). However, when, as here, counsel
has failed to object to the remarks at
the time they were made, the plain error
standard requires that the defendant
"establish ’not only that the remarks
denied him a fair trial, but also that
the outcome of the proceedings would have
been different absent the remarks.’"
United States v. Durham, 211 F.3d 437,
442 (7th Cir. 2000) (quoting United
States v. Granados, 142 F.3d 1016, 1022
(7th Cir. 1998)).

The defendants maintain that the
Government’s argument in this case is
indistinguishable from the argument we
found problematic in United States v.
Vargas, 583 F.2d 380 (7th Cir. 1978). In
that case, the prosecutor argued that
"these Federal agents have come in and
testified under oath as to what they
observed; and if you find the defendant
not guilty, I want you to write on there
that all of those people lied. Ricevuto
is a liar. Garcia is a liar. Collins is
a liar. Kowalski is a liar. Fanter is a
liar." Id. at 387 (internal quotation
marks omitted). The only other
alternative, stated the Government, was a
verdict of guilty. This court held that
these statements constituted misconduct:

Even assuming that the testimony of the
prosecution and defense witnesses
contained unavoidable contradictions, it
of course does not follow as a matter of
law that in order to acquit Vargas the
jury had to believe that the agents had
lied. If the jurors believed that the
agents probably were telling the truth
and that Vargas probably was lying or
even if the jury was convinced that all
of the agents save Garcia were telling
the truth and thought that Garcia
probably was telling the truth it would
have been proper to return a verdict of
not guilty because the evidence might not
be sufficient to convict [the] defendant
beyond a reasonable doubt. To tell the
jurors that they had to choose between
the two stories was error.

Id.

We believe that the remarks made by the
prosecution in this case are not
equivalent to those made in Vargas. In
the present case, the Government’s
attorney argued that "[t]he clear
implication from [the defense] closing, .
. . was that Inspector Eck and Officer
Burke came in here, committed a crime by
perjuring themselves," Tr. 1322, and that
there were "suggestions" that the
officers falsified the report and
committed perjury, Tr. 1327-28. However,
the prosecutor here stopped short of
giving the jury the ultimatum presented
to the jury in Vargas: The prosecutor did
not tell the jury that, if they returned
a verdict of not guilty, they had to
conclude that the officers lied. This
either/or proposition is what we found
most troubling in Vargas. We commented
that "[e]ven assuming that the testimony
of the prosecution and defense witnesses
contained unavoidable contradictions, it
of course does not follow as a matter of
law that in order to acquit Vargas the
jury had to believe that the agents had
lied." Vargas, 583 F.2d at 387. Although
the prosecutor here pointed out the
"unavoidable contradictions," he did not
state that "in order to acquit [the
defendants] the jury had to believe that
the agents had lied."

More recent cases have emphasized this
distinction. In United States v. Cornett,
232 F.3d 570, 574 (7th Cir. 2000), we
noted that "[w]e have revisited this
issue several times since Vargas,
distinguishing cases where the prosecutor
did not explicitly argue that the jury
must find a witness lied in order to
acquit." Id. (citations omitted); see
also United States v. Amerson, 185 F.3d
676, 687 (7th Cir. 1999) (stating that it
was not improper for the prosecutor to
comment that "[y]ou simply cannot believe
the testimony of these police officers
and believe the defendant’s testimony at
the same time" because the comments did
not force the jury to decide between
acquitting the defendant and believing
the police officers); United States v.
Marshall, 75 F.3d 1097, 1107-08 (7th Cir.
1996) (finding no impropriety when the
prosecutor commented that the jury should
acquit if it disbelieved an FBI agent
because the prosecutor did not state that
disbelieving the FBI agent was the only
way to acquit); United States v.
Hernandez, 865 F.2d 925, 929-30 (7th Cir.
1989) (same). Because the prosecutor did
not link directly the allegations of
perjury with a defense acquittal, we do
not believe that the prosecutor engaged
in any impropriety./7

2.

The defendants also claim prejudice from
the Government’s characterization of
Sumpter’s and Buchholz’s statements as
"confessions." Prior to his closing
argument, the attorney for the Government
requested that the district court allow
him to argue that, pursuant to 18 U.S.C.
sec. 3501,/8 the statements of Sumpter
and Buchholz were confessions. The
defendants objected, but the district
court acceded in the Government’s request
with the understanding that the
defendants could argue that the
statements did not constitute
confessions. The court also gave an
instruction directed to these statements.
The court charged the jury:

You have received evidence of statements
said to be made by defendants Sumpter and
Buchholz to law enforcement officers. You
must decide whether the defendants did in
fact make the statements. If you find
that the defendants did make the
statements, then you must decide what
weight, if any, you feel the statements
deserve. In making this decision, you
should consider all matters in evidence
having to do with the statements,
including those concerning the defendants
themselves and the circumstances under
which the statements were made.

R.91, Government’s Inst. 12.

Relying on United States v. Morsley, 64
F.3d 907 (4th Cir. 1995), the defendants
argue that the Government’s
characterization of these statements as
confessions was prosecutorial misconduct
that deprived them of a fair trial. In
Morsley, the Fourth Circuit held that two
statements made by the prosecutor in
closing argument were improper: 1) that
the defendant had pleaded guilty to one
of the counts (when no evidence of the
plea was before the jury) and 2) that the
defendant had confessed to his
involvement in the conspiracy. With
respect to the confession, the court
stated: "Although it is a closer
question, we believe the prosecutor also
acted improperly in referring to McKoy’s
statements to federal agents as a
’confession.’ McKoy certainly admitted
several aspects of his involvement in the
conspiracy, but he did not formally
’confess’ his guilt." Id. at 913. Despite
its finding that the combination of these
comments "reache[d] the limit of
tolerable trial error," the Fourth
Circuit held that the comments did not
deprive the defendant of a fair trial.
Id.

Even if we were to agree with our
colleagues on the Fourth Circuit that the
prosecutor’s characterization of
Buchholz’s and Sumpter’s statements
constituted "tolerable trial error," it
does not follow that the defendants were
deprived of a fair trial. See Morgan, 113
F.3d at 89 (identifying two-step process
for determining if prosecutorial
misconduct resulted in prejudice). Using
the criteria set forth above, we do not
believe that the comments of the
prosecutor resulted in prejudice to the
defendants. See Amerson, 185 F.3d at 686.
The use of the word "confession" without
more, as the defendants recognize, simply
is not "serious" misconduct, if
misconduct at all./9 See Appellants’
Br. at 45 (stating that, arguably, "the
use of the word ’confession’" by itself
did not require reversal). The court also
used the jury instructions as a means to
ameliorate the effect of the
characterization. The court gave an
explicit instruction explaining to the
jury how it should evaluate the
statements. The court also cautioned
against giving weight to the attorneys’
arguments. It stated that "[c]ertain
things are not evidence" including "the
lawyers’ statements." R.91, Government’s
Inst. 7. "The purpose of these
statements," the court continued, "is to
discuss the issues and the evidence. If
the evidence as you remember it differs
from what the lawyers said, your memory
is what counts." Id. As well, the defense
had at least some opportunity to respond
to the characterization and to explain
why the statements were not confessions.
See Tr. 1271, 1318. Finally, the weight
of the evidence supporting the conviction
was strong. Consequently, assuming some
error in the use of the term
"confession," no prejudice resulted, and
the jury’s verdict will not be reversed.

D. Jury Misconduct

Finally, the defendants characterize
Juror 99’s "curiosity" as "bias against
the Defendants," Appellants’ Br. at 48,
that undermines the validity of the
jury’s verdict. Because "’[t]he process
of empaneling a jury is firmly entrusted
to the sound discretion of the trial judge,’"
we shall not disturb the district court’s
decision in this arena "’absent an abuse
of this discretion.’" United States v.
Beasley, 48 F.3d 262, 267 (7th Cir. 1995)
(quoting United States v. Rubin, 37 F.3d
49, 54 (2d Cir. 1994)). We find none
here.

According to the juror’s own statement,
she had not meant to express concern,
only curiosity. Upon further questioning
by the court, she stated unequivocally
that she could be fair and impartial.
Given these responses and the district
court’s superior vantage point to
evaluate the juror’s credibility in
responding to its inquiries, we shall not
second guess its determination that Juror
99 could faithfully execute her oath.
Consequently, we shall not disturb the
district court’s decision to allow the
empaneled jury to sit and render
judgment. Cf. Thompson v. Altheimer &
Gray, 248 F.3d 621, 626 (7th Cir. 2001)
("Had the judge pushed Leiter and had she
finally given unequivocal assurances that
he deemed credible, his ruling could not
be disturbed.").

Conclusion

For the reasons set forth above, the
judgment of the district court is
affirmed.

AFFIRMED

FOOTNOTES

/1 Little had agreed to cooperate with the investi-
gation in St. Louis at the time he entered his
agreement with the Government to cooperate in
this matter. See Tr. 432-36.

/2 Federal Rule of Evidence 402 states: "All rele-
vant evidence is admissible, except as otherwise
provided by the Constitution of the United
States, by Act of Congress, by these rules, or by
other rules prescribed by the Supreme Court
pursuant to statutory authority. Evidence which
is not relevant is not admissible."

Federal Rule of Evidence 401 defines relevant
evidence as "evidence having any tendency to make
the existence of any fact that is of consequence
to the determination of the action more probable
or less probable than it would be without the
evidence." Fed. R. Evid. 401.

/3 Federal Rule of Evidence 403 states: "Although
relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the
danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless
presentation of cumulative evidence."

/4 The defendants also point to United States v.
Cheska, 202 F.3d 947 (7th Cir. 2000), in support
of their contention that the district court
abused its discretion in admitting Special Agent
Scheitlin’s testimony. We cannot agree. Cheska
did not involve the admission of evidence but
instead involved prosecutorial misconduct that
stemmed from a comment that a witness "had con-
victed 23 other people" when evidence of the
witness’ prior cooperation had not been admitted
into evidence. Cheska, 202 F.3d at 949. The
district court found that the statement was
objectively false and because the witness’ testi-
mony was critical to the Government’s case,
ordered a new trial based on the prosecutor’s
comment. At issue here is not the objectively
false commentary of a prosecutor, without support
in the record; we simply are presented with
evidence offered by a Government agent concerning
a witness’ prior cooperation. Consequently, we
believe Cheska is inapplicable to the facts as
they are before us.

/5 The comment to 5.11 states that "[t]he bracketed
paragraph in (a) may be used as additional or
substitute language in cases involving charges of
conspiracy, RICO or CCE." Furthermore, all of the
cases that the defendants cite in support of
their proposition that the instruction should be
given are conspiracy cases. See Appellants’ Br.
at 31. No conspiracy was charged in the present
case and, therefore, it is not clear that the
omitted language is applicable to these defen-
dants.

/6 Our conclusion also finds support in the commen-
tary to Pattern Instruction 5.11. The Committee
Comment to the instruction states: "As a general
rule, (a) and (b) are alternative instructions.
The bracketed paragraph in (a) may be used as
additional or substitute language in cases in-
volving charges of conspiracy, RICO or CCE." The
comment to the proffered instruction, therefore,
belies the defendants’ suggestion that the in-
struction, as given, was inadequate because
paragraphs (a) and (b) of 5.11 were designed to
be given in the alternative, and not the conjunc-
tive.

/7 Because we do not believe any prosecutorial
misconduct occurred, it is unnecessary for us to
engage in the second of the two-part inquiry--
whether prejudice occurred as a result of the
misconduct.

/8 18 U.S.C. sec. 3501 defines "confession" to
include "any self-incriminating statement made or
given orally or in writing." Cf. Dickerson v.
United States, 530 U.S. 428 (2000) (construing 18
U.S.C. sec. 3501 and holding that Miranda and its
progeny govern the admissibility of statements
made during custodial interrogation in both state
and federal courts).

/9 See United States v. Goodlow, 105 F.3d 1203, 1207
(8th Cir. 1997) (stating that the court was "not
entirely convinced that the prosecutor’s charac-
terization" of the defendant’s statements as a
confession "amounted to misconduct").