In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1869
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONALD MATTHEWS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30009–G. Patrick Murphy, Chief Judge.
____________
ARGUED APRIL 3, 2007—DECIDED OCTOBER 11, 2007
____________
Before MANION, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. During the fall of 2004,
Ronald Matthews, the Chief of Police of the East St. Louis,
Illinois Police Department, confronted an age-old question:
how far to go to help a friend? The friend, Ayoub (“Dave”)
Qattoum, was a gun-toting auxiliary officer of the De-
partment and a convicted felon. After an altercation with
another officer ended in Qattoum’s arrest and the seizure
of his firearm, Qattoum called Matthews for help, and
Matthews did not disappoint him. Over the next several
weeks, Matthews tried to help Qattoum avoid prosecution
by “losing” Qattoum’s weapon. Matthews even enlisted
the help of his secretary, Janerra Carson-Slaughter. But,
their efforts failed and Matthews, Qattoum, and Carson-
2 No. 06-1869
Slaughter were charged with conspiracy to obstruct
justice and attempted obstruction of justice. Matthews
was also charged with perjury before the grand jury.
While he went to trial, Qattoum and Carson-Slaughter
pled guilty and testified against Matthews. Matthews
was convicted on all counts and now appeals his con-
victions for obstruction of justice and conspiracy, claiming
that the obstruction instructions did not sufficiently
detail the elements of that offense. He also asserts that
the conspiracy instructions did not identify the object of
the conspiracy, failed to require unanimity as to the
conspiracy’s overt acts, and permitted the jury to convict
based on overt acts not in furtherance of the conspiracy.
Finding no prejudicial error in the instructions, we affirm.
I. BACKGROUND
Matthews’s convictions stem from his failed attempt
to thwart the prosecution of Dave Qattoum for federal
firearms offenses. Matthews met Qattoum in 2003 and
invited him to become an auxiliary police officer, an unpaid
civilian who assists in police work. As an auxiliary officer,
Qattoum participated in drug raids and provided event
security, all while openly carrying firearms. Yet, somehow,
no one discovered that Qattoum was a felon and possibly
an illegal alien, who, at the very least, remained in the
country beyond his period of authorization.1 Qattoum had
1
Qattoum was born in the West Bank and moved to East
St. Louis in approximately 1995. As of August 2004, Qattoum’s
immigration status was unclear to the Bureau of Immigration
and Customs Enforcement (“ICE”). ICE began investigating
Qattoum on the belief that he was present in the United States
illegally, making his possession of a firearm a felony. Only in
January 2005 did ICE determine that Qattoum was not techni-
(continued...)
No. 06-1869 3
prior convictions for felony receipt of counterfeit goods
and for misdemeanor domestic battery. Without question,
he was legally prohibited from carrying a firearm.
Qattoum cultivated close relationships with East St.
Louis councilmen and city officials, often using bribes to
advance his business interests. During Qattoum’s time as
an auxiliary officer, he and Matthews became close friends,
speaking on a daily or weekly basis. Qattoum lent
Matthews $500 so that Matthews could post bond for his
girlfriend and at Matthews’s request provided her with a
cellular phone. Qattoum also gave Matthews free food and
beverages at the convenience store and gas station he
owned.
While driving to an assignment on August 7, 2004,
Qattoum heard Detective Dan Hill radio for assistance
with a traffic stop of suspected drug dealers and offered
his assistance. Officer Lance Murphy replied that he
would assist and directed Qattoum not to respond.
Qattoum disregarded Murphy, stopped the vehicle, pointed
his revolver at the driver, and ordered him out of the
vehicle. After Hill arrested the driver, Murphy arrived on
the scene and ordered Qattoum to leave or face arrest.
Qattoum refused to leave and resisted Murphy’s attempts
to handcuff him. A physical altercation ensued, ending
in Qattoum’s arrest for aggravated battery of a police
officer and seizure of Qattoum’s .38 revolver.
Qattoum phoned Matthews from the police station for
assistance. They met outside the station with Deputy Chief
of Police Rudy McIntosh and two city officials. McIntosh,
who was then cooperating with the FBI on a corruption
investigation, reported this meeting to the FBI and later
recorded several incriminating conversations played at
1
(...continued)
cally present illegally because he had a pending petition to
change his immigration status.
4 No. 06-1869
trial. According to Qattoum, Matthews assured Qattoum
that the Department would handle the matter “in-house”
and that no charges would be brought. From that moment,
Matthews committed himself to fulfilling that promise.
Although Qattoum was facing serious felony charges,
that night Matthews ordered him released without bond.
Matthews assigned detectives for a criminal and an
internal investigation. The detective assigned to the
internal investigation testified that Matthews told him
not to speak with anyone about the investigation and not
to copy any documents pertaining to the investigation.
Both detectives quickly discovered Qattoum’s criminal
history and notified Matthews within the week. On
August 17, 2004, the criminal investigator spoke with the
Bureau of Immigration and Customs Enforcement (“ICE”)
about Qattoum’s immigration status. ICE informed her
that it needed the revolver to charge Qattoum as an illegal
alien in possession of a firearm, and she relayed this
information to Matthews. On August 20, Matthews was
recorded telling McIntosh that ICE was pursuing fed-
eral firearms charges and saying “if the key is the damn
weapon, we’ve got to get the weapon.”
On August 31 and September 1, 2004, Matthews was
recorded instructing his internal affairs officer to retrieve
the firearm and bring it directly to him. According to the
internal affairs officer, on September 1, Matthews said
he was not “going to help the INS fuck Dave [Qattoum].”
That day, the internal affairs officer retrieved the re-
volver from the East St. Louis Police Department and
turned it over to Matthews without requiring Matthews
to acknowledge receipt of the gun in writing. In a record-
ing on September 2, Matthews told McIntosh that “[t]he
biggest half of the worry is out of the way. We got the
gun.” Further, he claimed, “INS can’t do shit now. We
got the gun. It ain’t even in evidence.”
No. 06-1869 5
Meanwhile, Matthews continued his campaign to derail
the state prosecution. The St. Clair County State’s Attor-
ney testified that in late August, just days after a newspa-
per featured Qattoum’s story, Matthews called the
State’s Attorney to discuss Qattoum. During the con-
versation, Matthews told the State’s Attorney that he
was going to exercise his discretion to handle the incident
internally. Without describing the facts of the incident,
explaining his relationship to Qattoum, or informing the
State’s Attorney of Qattoum’s felon and immigration
status, Matthews asked for, and received, the State’s
Attorney’s approval of his decision to handle the matter
internally. Matthews then directed the officers conduct-
ing the internal and criminal investigations of Qattoum
to turn over all investigatory files to him, and he removed
them from the investigation. When the criminal investiga-
tor questioned the order to turn over her files, Matthews
threatened to suspend her. After giving up her files, the
criminal investigator was forced to abandon her plan to
pursue state charges against Qattoum.
In the middle of September, at the instigation of the FBI,
ICE stepped up its efforts to retrieve the revolver. When
ICE agents met with Matthews on September 30, 2004, he
turned over case files but refused to release the weapon
without a court order. He claimed the gun was needed
for the Department’s internal investigation. Carson-
Slaughter, Matthews’s secretary and co-defendant, testi-
fied that around this time Matthews approached her
for help altering reports concerning Qattoum and smug-
gling the gun out of the department. According to Carson-
Slaughter, Matthews explained that he could not dispose
of the gun himself because “he knew that the Feds
were snooping around” and he did not want to draw any
attention. Matthews instructed Carson-Slaughter to ask
McIntosh to get $1500 from Qattoum in exchange for the
gun. For her participation, Matthews promised to give
Carson-Slaughter $300.
6 No. 06-1869
After numerous discussions with McIntosh, all with
Matthews’s knowledge, Carson-Slaughter seized an
opportunity on October 11, 2004. While Matthews was
out of the office, she took the revolver from his desk
and delivered it to McIntosh. Carson-Slaughter testified
that she called Matthews and informed him of the ex-
change that evening. Later that week, she collected $1500
from McIntosh, gave Matthews $1200, and she kept $300.
Qattoum testified that after this happened Matthews
told him not to worry and that the firearm was gone.
However, unbeknownst to Matthews, McIntosh had
turned the revolver over to the FBI.
On October 19, 2004, ICE agents served Matthews with
a grand jury subpoena directing the East St. Louis Police
Department Custodian of Records to turn over the firearm.
On November 16, 2004, Matthews appeared before the
grand jury in response to the subpoena. That day, the
internal affairs investigator claims Matthews reaffirmed
that he was “not going to help INS fuck Dave [Qattoum].”
While testifying before the grand jury, Matthews made
a number of statements that formed the basis for his
perjury charge, including that he had last seen the re-
volver the day after he received the subpoena and that he
had not spoken with Qattoum about the August 7, 2004
incident or the grand jury subpoena.
As a result, Matthews was charged with, and convicted
of, conspiracy to obstruct justice, in violation of 18 U.S.C.
§ 371; attempted obstruction of justice, pursuant to
18 U.S.C. §§ 1512(c)(1) and 2; and perjury before the
grand jury, a violation of 18 U.S.C. § 1623. Matthews was
sentenced to thirty-three months’ incarceration and now
appeals his convictions for conspiracy to obstruct
justice and attempted obstruction of justice. Although
Matthews offers an alternate account of the events,
portraying McIntosh and Carson-Slaughter as the ones
who sought to protect Qattoum from prosecution by
No. 06-1869 7
concealing the gun, he does not challenge the sufficiency
of the evidence in support of his convictions. Instead, he
contends that his convictions arose from infirmities in the
jury instructions. We consider each of his arguments
below.
II. ANALYSIS
A. Standard of Review
“We review jury instructions de novo to determine
whether they provide fair and accurate summaries of the
law.” United States v. Darif, 446 F.3d 701, 709 (7th Cir.
2006) (quotation marks and citations omitted). Mindful
that the “formulation of jury instructions is not an exact
science,” we give the district court “substantial discretion
with respect to the precise wording of jury instructions,” so
long as the instructions represented a complete and cor-
rect statement of law. Id. (quotation marks and citations
omitted). And, we will reverse the jury’s verdict only if
the instructions, “viewed as a whole, misguide[d] the
jury to the litigant’s prejudice.” United States v. Ramsey,
406 F.3d 426, 431 (7th Cir. 2005) (quotation marks and
citations omitted).
B. The Attempted Obstruction of Justice Instruc-
tions Were Adequate
Matthews argues three errors in the instructions for
obstruction of justice under 18 U.S.C. § 1512(c)(1). First,
he contends the instructions contained an erroneous
definition of “corruptly.” Second, he believes the instruc-
tions failed to require proof of a sufficient nexus between
his acts and a particular official proceeding. Third,
Matthews says the instructions did not require the jury
to find that his efforts to conceal the gun were corrupt.
8 No. 06-1869
Common to each of these arguments is a suggestion that
the jury instructions understated the mens rea necessary
for an obstruction of justice conviction. For reasons
detailed below, we disagree.
Before proceeding to Matthews’s arguments, we set
forth the relevant statutory provisions and jury instruc-
tions. Section 1512(c)(1) provides that:
(c) Whoever corruptly–
(1) alters, destroys, mutilates, or conceals a record,
document, or other object, or attempts to do so,
with the intent to impair the object’s integrity or
availability for use in an official proceeding . . .
shall be fined under this title or imprisoned not
more than 20 years, or both.
The district court instructed the jury that to convict
Matthews of attempted obstruction of justice under
§ 1512(c)(1), it must be satisfied that the government
proved the following propositions:
First, Ronald Matthews attempted to destroy or
conceal an object; second, Ronald Matthews acted
with intent to impair the object’s availability for use
in an official proceeding; and third, Ronald Matthews
acted corruptly.
...
For purposes of these instructions an official pro-
ceeding need not be pending or about to be instituted
at the time of the offense.
The term “official proceeding” as used in these
instructions means the federal grand jury for the
Southern District of Illinois.
“Corruptly” as used in these instructions, means that
the defendant acted with the purpose of wrongfully
impeding the due administration of justice.
No. 06-1869 9
1. “Corruptly” Was Properly Defined
We begin with Matthews’s contention that the instruc-
tions provided a flawed definition of the word “corruptly.”
According to Matthews, the district court should have
defined “corruptly” to mean acting “with an improper
motive or with an evil or wicked purpose.” Matthews
says the district court’s failure to give this instruction
permitted him to be punished for innocent conduct. In
this instance, he contends, the word “corruptly” did not
serve its intended function of distinguishing innocent
obstructive acts—such as an attorney’s act of advising his
client to assert the right to remain silent—from corrupt
obstructive acts. Although this argument is not without
force, it ultimately fails.
For his argument, Matthews relies heavily on Arthur
Andersen LLP v. United States, 544 U.S. 696 (2005), where
the Court explained how the word “corruptly” serves to
separate criminal and innocent acts of obstruction. Arthur
Andersen concerned the elements of obstruction of
justice under 18 U.S.C. § 1512(b), which criminalizes
“knowingly . . . corruptly persuad[ing] another person . . .
with intent to . . . cause or induce any person
to . . . conceal an object with intent to impair the object’s
integrity or availability for use in an official proceeding.”
Id. at 703. Arthur Andersen was convicted of obstruct-
ing justice under that section because it destroyed docu-
ments related to its representation of Enron Corporation
after obtaining knowledge of an ongoing SEC investigation
of Enron. In reversing Arthur Andersen’s conviction, the
Court observed that it is not necessarily corrupt to per-
suade another person to withhold documents from a
government proceeding, even with the intent to impede
government factfinding. Id. at 703-04. If the intent to
impede a proceeding were corrupt per se, the Court
reasoned, an attorney who persuades his client to withhold
10 No. 06-1869
documents under a valid claim of privilege would be guilty
of obstruction. Id. at 704.
The Court then considered whether the district court’s
instructions were so broad as to prohibit innocent acts
of obstruction and concluded that they were. The Court
noted that the district court was initially inclined to
instruct the jury that “corruptly” meant “knowingly and
dishonestly, with the specific intent to subvert or under-
mine the integrity” of a proceeding. Id. at 706. However,
at the government’s request, the district court excluded
the word “dishonestly” from the definition, ultimately
instructing the jury “to convict if it found [the defendant]
intended to ‘subvert, undermine, or impede’ governmental
factfinding . . . .” Id. With that change, “[n]o longer was
any type of ‘dishonesty’ necessary to a finding of guilt, and
it was enough for petitioner to have simply ‘impeded’ the
Government’s factfinding ability.” Id. Stripped of any
requirement that the defendant act dishonestly, “[t]he
instructions diluted the meaning of ‘corruptly’ so that
it covered innocent conduct.” Id. Matthews claims that
the definition of “corruptly” in his instructions erred in
a similar fashion; we do not agree.
In this case, the district court’s definition of “corruptly”
did not create the misimpression that any act designed to
impede prosecution is inherently corrupt. Rather, citing
the Seventh Circuit’s pattern jury instructions verbatim,
the district court defined “corruptly” as acting “with the
purpose of wrongfully impeding the due administration of
justice.” See Seventh Circuit Pattern Criminal Federal
Jury Instructions for 18 U.S.C. § 1503 (1999) (emphasis
added).2 Unlike Arthur Andersen, where “the ‘corruptly’
2
In defining “corruptly,” the district court relied upon the
Seventh Circuit’s pattern jury instruction for 18 U.S.C. § 1503
(continued...)
No. 06-1869 11
instructions did no limiting work whatsoever,” id., the
instruction in this case specifically required a finding
that Matthews had the purpose to “wrongfully” impede.
Matthews protests that this was hardly enough. He urges
that “corruptly” means to act “with an improper motive
or with an evil or wicked purpose” and that “wrongfully”
fails to convey that meaning. But we do not think the
word “corruptly” need be read so narrowly.
First, in Arthur Andersen, the Court propounded a
definition of corruptly that is consistent with that provided
in this case. The Court noted that “ ‘[c]orrupt’ and
‘corruptly’ are normally associated with wrongful, im-
moral, depraved, or evil.” 544 U.S. at 705 (emphases
added); see United States v. Quattrone, 441 F.3d 153, 173
(2d Cir. 2006) (defining the “corrupt” intent required for a
§ 1503 conviction as a “ ‘wrongful’ or ‘immoral’ intent to
obstruct the grand jury’s administration of justice”).
Second, we think the word “wrongfully” performs the
“limiting work” discussed in Arthur Andersen. As ex-
plained in Arthur Andersen, under limited circumstances,
a defendant is privileged to obstruct the prosecution of
a crime. That privilege flows from the defendant’s en-
joyment of a legal right—such as the right to avoid
self-incrimination. By including the word “wrongfully” in
the definition of “corruptly” and criminalizing only the
act of “wrongfully impeding the due administration of
justice,” the instructions directed the jury to convict only
2
(...continued)
because no model instruction has been drafted for 18 U.S.C.
§ 1512. Because both sections prohibit similar types of conduct,
it was proper for the district court to reference § 1503 in arriving
at a definition for “corruptly” under § 1512. Matthews does not
suggest otherwise, and, in fact, he references § 1503 in making
several of his arguments.
12 No. 06-1869
those who have no legal right to impede justice. Cf. United
States v. Bohle, 445 F.2d 54, 60 (7th Cir. 1971) (explaining
that to seize a plane with a “wrongful intent” means to
act with “the general criminal intent present when one
seizes or exercises control of an aircraft without having
any legal right to do so.”) (emphasis added), overruled
on other grounds by United States v. Lawson, 653 F.2d
299, 303 n.12 (7th Cir. 1981). Thus, we see no reason to
narrow our definition of the word “corruptly,” particularly
when the Supreme Court has not retreated from our
formulation.
Moreover, even if we were to accept Matthews’s view
that the district court defined “corruptly” too broadly, he
still could not prevail. Matthews has simply failed to
show that he was prejudiced by the district court’s defini-
tion of “corruptly.” See Neder v. United States, 527 U.S. 1,
9-10 (1999) (harmless-error analysis applies when a
district court’s jury instructions omit or misstate an
element of an offense). Specifically, he does not explain
how he would have benefitted had the district court
defined corruptly in accordance with his wishes to mean
acting with “improper motive.” The overwhelming evid-
ence established that Matthews orchestrated a scheme
to conceal Qattoum’s revolver from federal investigators
in effort to thwart a federal firearms prosecution, and
the apparent motive for his obstructive acts—helping
a friend escape legitimate prosecution—is surely
improper. Therefore, we find, beyond a reasonable doubt,
that Matthews was not prejudiced by the district court’s
failure to offer Matthews’s proposed definition of “cor-
ruptly.” See United States v. Haddad, 462 F.3d 783, 793
(7th Cir. 2006) (An “error is harmless if it is ‘clear be-
yond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.’ ”) (quoting
Neder, 527 U.S. at 18).
No. 06-1869 13
2. The Instructions Linked the “Corruptly” Ele-
ment to the Other Elements of the Offense
On appeal, Matthews argues for the first time that the
instructions did not indicate that the word “corruptly” was
meant to modify the acts of destroying or concealing the
gun. The argument goes: because the attempted obstruc-
tion of justice instruction listed “corruptly” as an independ-
ent third element, the jury was led to convict based on
a finding that Matthews had acted corruptly in ways
unrelated to the first two elements of the offense. As he
failed to raise this argument below, we review only for
plain error. United States v. Allen, 390 F.3d 944, 952 (7th
Cir. 2004); Fed. R. Crim. P. 52(b).
Matthews’s interpretation unreasonably parses the
instruction. Contrary to his claim that the instructions
placed “ ‘corruptly’ conspicuously by itself, as a solitary
third element,” the “corruptly” element immediately
followed the other two elements of the offense; and all
three appeared in the same sentence. The first element
required a finding that “Matthews attempted to destroy
or conceal an object.” The next two elements refer back
to and modify the first. Both the clause that Matthews
challenges (“Matthews acted corruptly”) and the preceding
clause (“Matthews acted with the intent to impair the
object’s availability”) naturally describe the acts of at-
tempting to conceal or destroy the object. The instructions
fairly and adequately indicated that the jury needed to find
that Matthews corruptly attempted to conceal the firearm.
Furthermore, we note that this is a typical and
unproblematic structure for presenting mens rea elements.
See, e.g., Seventh Circuit Pattern Criminal Federal Jury
Instructions for 18 U.S.C. § 152(6) (“Third, the defendant
acted knowingly and fraudulently.”); Seventh Circuit
Pattern Criminal Federal Jury Instructions for 26 U.S.C.
§ 7203 (“Third, defendant acted willfully”); Seventh
14 No. 06-1869
Circuit Pattern Criminal Federal Jury Instructions for 18
U.S.C. § 286 (“Fourth, that the defendant acted with the
intent to defraud.”). We find no error in the structure of
the obstruction of justice instruction.
3. The Nexus Requirement Was Met
Matthews next contends that the district court erred in
failing to require a meaningful nexus between the grand
jury proceeding and his attempts to conceal the weapon.
The instructions, he claims, permitted the jury to convict
him even if it found that he only intended to impede an
investigation, rather than a proceeding. At times,
Matthews goes so far as to say that he should not have
been convicted unless he knew that a proceeding was
pending. As he preserved these arguments for appeal,
our review is de novo. See Darif, 446 F.3d at 709.
We begin by considering whether 18 U.S.C. § 1512(c)(1)
requires a showing of “nexus.” In Arthur Andersen, the
Court held that § 1512(b)(1) encompasses a “nexus”
requirement. 544 U.S. at 707-08. This means that to
convict a defendant of obstructing justice under that
subsection, “the [obstructive] act must have a relationship
in time, causation, or logic with the judicial proceedings.”
United States v. Aguilar, 515 U.S. 593, 599 (1995). The
government had argued against finding a “nexus” require-
ment under § 1512(b)(1), because to convict a defendant
under any of 18 U.S.C. § 1512’s subsections, “an official
proceeding ‘need not be pending or about to be instituted
at the time of the offense.’ ” Arthur Andersen, 544 U.S. at
707 (quoting 18 U.S.C. § 1512(e)(1), now codified at
§ 1512(f)(1)). However, the Court admonished: “It
is . . . one thing to say that a proceeding ‘need not be
pending or about to be instituted at the time of the of-
fense,’ and quite another to say a proceeding need not
even be foreseen. A ‘knowingly . . . corrupt persuader’
No. 06-1869 15
cannot be someone who persuades others to shred docu-
ments under a document retention policy when he does
not have in contemplation any particular official proceed-
ing in which those documents might be material.” Id.
at 707-08.
We believe that logic applies with equal force to
§ 1512(c)(1) because that subsection, like § 1512(b)(1),
speaks in terms of the relationship between obstructive
acts and a proceeding. Compare § 1512(b)(1) (requiring
that a defendant act “with intent to . . . influence, delay
or prevent the testimony of any person in an official
proceeding”), with § 1512(c)(1) (requiring that defendant
act “with the intent to impair the object’s integrity or
availability for use in an official proceeding”). Accordingly,
before a defendant may be convicted of obstruction under
§ 1512(c)(1), he must believe that his acts will be likely
to affect a pending or foreseeable proceeding. See Arthur
Andersen, 544 U.S. at 707; United States v. Kaplan, 490
F.3d 110, 125 (2d Cir. 2007) (“[A] ‘knowingly . . . corrupt
persuader’ must believe that his actions are likely to
affect a particular, existing or foreseeable official proceed-
ing.”).3
We think the jury instructions did an adequate job of
conveying the “nexus” required under § 1512(c)(1). The
3
In United States v. Aguilar, 515 U.S. 593 (1995), the Court
read a “nexus” requirement into the omnibus clause of 18 U.S.C.
§ 1503. “[S]ection 1503 as read by the Supreme Court requires
an attempt to obstruct a pending judicial proceeding; no such
requirement of a pending proceeding exists in section 1512.”
United States v. LeMoure, 474 F.3d 37, 43 (1st Cir. 2007)
(citations omitted). Given this important distinction between
§ 1503 and § 1512, Matthews’s reliance on Aguilar is misplaced,
and his contention that he should not have been convicted unless
he knew a proceeding was pending at the time he engaged
in obstructive acts is simply wrong.
16 No. 06-1869
instructions required the jury to find that “Matthews
attempted to conceal . . . an object,” and that he did so
“with intent to impair the object’s availability for use in
an official proceeding.” (Emphasis added). The district
court then specified that this “official proceeding” was “the
federal grand jury for the Southern District of Illinois.”
Under these instructions, the jury could only convict
Matthews if it found that he attempted to conceal the
gun with the intent to prevent its use in the federal grand
jury. Contrary to Matthews’s claim that the instruc-
tions eliminated any nexus, this instruction directly
connected his acts with the grand jury proceeding. And,
under these instructions, the jury could not have con-
victed Matthews without finding that he foresaw the
grand jury proceedings; Matthews could not have acted
with “intent” to impair the grand jury proceedings without
some inkling that those proceedings were upcoming. The
instructions did not misstate § 1512(c)(1)’s nexus re-
quirement.
C. The Conspiracy Instruction Was Adequate
Matthews also assigns several errors to the conspiracy
instruction. First, he contends that the instruction did
not identify the crime that Matthews was charged with
conspiring to commit; second, that the instruction failed
to require unanimity as to the overt act committed in
furtherance of the conspiracy; and third, that the jury
was permitted to identify as an overt act in furtherance
of the conspiracy, acts committed before the conspiracy’s
objective formed. As Matthews did not object to the
conspiracy instructions in the district court, we review
these arguments for plain error. Allen, 390 F.3d at 952;
Fed. R. Crim. P. 52(b).
Tracking verbatim the Seventh Circuit’s pattern jury
instruction for conspiracy, the district court told the jury
No. 06-1869 17
that to convict Matthews of conspiracy to obstruct justice,
the government had to prove:
First, that the conspiracy as charged in Count 1
existed; and
Second, that Ronald Matthews knowingly became a
member of the conspiracy with an intention to further
the conspiracy; and
Third, that an overt act was committed by at least
one conspirator in furtherance of the conspiracy.
If you find from your consideration of all the evi-
dence that each of these propositions has been proved
beyond a reasonable doubt, then you should find
Ronald Matthews guilty on Count 1.
See Seventh Circuit Pattern Criminal Federal Jury
Instructions 5.08.
1. The Jury Found At Least One Overt Act in
Furtherance of the Conspiracy
Matthews argues that the jury might have convicted
him of conspiracy to obstruct justice without agreeing
as to which overt act was committed in furtherance of
the conspiracy. The indictment charged eighteen overt
acts. The court gave a general unanimity instruction, but
it did not specify that the jurors had to be unanimous as
to which overt acts were performed. These facts, Matthews
says, imperiled his right to a unanimous jury verdict. See
United States v. Fawley, 137 F.3d 458, 470 (7th Cir. 1998)
(discussing federal criminal defendant’s right to a unani-
mous verdict). On the facts of this case, however, we
find no such risk.
We can be sure that the jury was unanimous as to at
least one overt act in furtherance of the conspiracy, and no
18 No. 06-1869
more is required. See United States v. Soy, 454 F.3d 766,
768 (7th Cir. 2006). Specifically, the jury unanimously
found Matthews guilty of the perjury count, and Matthews
does not challenge that conviction. As discussed below, the
facts underlying the perjury conviction are the same as
those alleged in Overt Act Q.
With respect to the perjury count, the indictment alleged
that, on November 16, 2004, Matthews testified that the
East St. Louis Police Department had seized a firearm
from Qattoum on August 7, 2004, but that the Depart-
ment could no longer locate the weapon. Further, the
indictment charged that Matthews falsely testified before
the grand jury that he had not spoken with Qattoum about
the case since August 7, and had never spoken with
Qattoum about the grand jury subpoena. He was also
alleged to have told the grand jury that he last saw the
weapon sometime around or about October 19, 2004, the
day he received the subpoena. However, the indictment
notes that, as of October 19, Matthews knew that the
firearm had been removed from the Department.
Overt Act Q of the conspiracy recites the exact same
allegations of perjury before the grand jury:
On or about November 16, 2004, RONALD
MATTHEWS appeared before the Federal grand jury
in East St. Louis, Illinois and testified that the East
St. Louis Police Department had, in fact, seized a
firearm from AYOUB S. QATTOUM on August 7,
2004, but that the Department could not locate the
actual physical weapon seized from AYOUB S.
QATTOUM. MATTHEWS falsely testified that he
had not discussed the case or the Federal grand jury
subpoena with QATTOUM. Further, MATTHEWS
falsely testified that he last saw the firearm on or
about October 19, 2004, when he was served with the
Federal grand jury subpoena by the ICE Special Agent.
No. 06-1869 19
Given the complete overlap between Overt Act Q and the
facts underlying Matthews’s perjury conviction, we find
that the jury did agree unanimously on at least one
overt act. Matthews attempted to argue against this
conclusion at oral argument, contending that his perjury
could not have furthered the conspiracy to conceal the
gun, because the government was in possession of the gun
at that time. This argument is legally flawed. “A conspir-
acy does not automatically terminate simply because the
Government, unbeknownst to some of the conspirators,
has ‘defeated’ the conspiracy’s ‘object.’ ” United States v.
Jimenez Recio, 537 U.S. 270, 274 (2003). When Matthews
testified, he was unaware that McIntosh had already
given the gun to the FBI. Even though his lies had no
hope of advancing the conspirators’ goals, they were
nonetheless acts legally “in furtherance” of the conspiracy.
See United States v. La Budda, 882 F.2d 244, 248 (7th Cir.
1989) (“[D]efendants can be found guilty of criminal
conspiracy even though the object of their conspiracy
is unattainable from the very beginning.” (citations
omitted)). The omission of a specific unanimity instruc-
tion on the overt acts was not plain error and did not
affect Matthews’s substantial rights.
We should note however that if either party had re-
quested a unanimity instruction or a special verdict
form on the overt acts, unanimity would not have been an
issue in this case. Counsel should seriously consider
making such requests in the future.
2. The Remaining Arguments Are Without Merit
Matthews asserts that it was legal error to allow the
jury to consider overt acts occurring before the initiation of
grand jury proceedings. He maintains that acts occurring
before he became aware of the grand jury proceed-
ings could not have furthered a conspiracy whose charged
20 No. 06-1869
object was “to impair the firearm’s availability for use
in an official proceeding.” We review this forfeited argu-
ment for plain error. Allen, 390 F.3d at 952; Fed. R. Crim.
P. 52(b).
In making this argument, Matthews all but ignores
§ 1512(f)(1), which provides that “an official proceeding
need not be pending or about to be instituted at the time
of the offense.” This plainly means that a defendant may
obstruct justice in violation of § 1512(c)(1) even before a
judicial proceeding is ongoing. As we stated above, a
defendant may obstruct justice under § 1512(c)(1) if he
believes that his acts will be likely to affect a foreseeable
proceeding. See Arthur Andersen, 544 U.S. at 707; Kaplan,
490 F.3d at 125. Since the government supplied ample
evidence—including Matthews’s own recorded
statements—to support its claim that Matthews thought
judicial proceedings likely if he did not dispose of the
firearm, it was not plain error to submit the challenged
overt acts to the jury for consideration.
Mathews also argues that the conspiracy instruction
was flawed because it did not specify the crime he con-
spired to commit or identify the object of the conspiracy.
Rather than simply excerpting the language of the indict-
ment, the instruction incorporates the counts of the
indictment by reference. As the jury had access to the
indictment, that was entirely proper.4
4
Further, Matthews contends that because the conspiracy to
obstruct justice offense incorporates the elements of obstruction
of justice, the conspiracy instruction inherited the infirmities
of the obstruction of justice instruction. Given our conclusion
that the district court gave a proper instruction on the obstruc-
tion of justice count, this derivative argument fails.
No. 06-1869 21
III. CONCLUSION
For the aforementioned reasons, the judgment of the
district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-11-07