In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1175
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
C. GREGORY TURNER,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division
No. 13 CR 572 — Elaine E. Bucklo, Judge.
____________________
ARGUED OCTOBER 26, 2015 — DECIDED SEPTEMBER 9, 2016
____________________
Before KANNE, ROVNER, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Defendant Gregory Turner was con‐
victed of willfully conspiring, with Prince Asiel Ben Israel, to
provide services for Zimbabwean Special Designated Nation‐
als (“SDNs”), a group of government officials and related in‐
dividuals deemed to be blocking the democratic processes or
institutions of Zimbabwe.
2 No. 15‐1175
On appeal, Turner raises several challenges against his
pre‐trial and trial proceedings. First, he argues that the district
court erred in admitting into evidence a document detailing
his agreement to provide services for the Zimbabwean SDNs,
called the “Consulting Agreement.” Second, he contends that
the district court erred in its instructions to the jury. Third,
Turner argues that the district court erred in its interactions
with the jury after deliberations had begun. We affirm.
Before turning to the case, we note that Turner also claims
that the evidence obtained pursuant to the Foreign Intelli‐
gence Surveillance Act (“FISA”) should have been sup‐
pressed. (Appellant Br. 35–39.) We have reviewed the classi‐
fied materials and find that the investigation did not violate
FISA. We shall issue a separate, classified opinion explaining
this conclusion. See United States v. Daoud, 755 F.3d 479, 485
(7th Cir. 2014), supplemented, 761 F.3d 678 (7th Cir. 2014).
I. BACKGROUND
We begin with a brief synopsis of the relevant legal frame‐
work for Turner’s case, including the statutes, executive or‐
ders, and regulations underlying the Zimbabwe sanctions.
Then, we summarize the pertinent factual background and
procedural history.
A. Legal Framework of Zimbabwe Sanctions
In 1977, Congress enacted the International Emergency
Economic Powers Act (“IEEPA”), Pub. L. 95‐223 (codified at
50 U.S.C. §§ 1701–07), which empowered the President to de‐
clare a “national emergency” during peace time “to deal with
any unusual and extraordinary threat, which has its source in
whole or substantial part outside the United States, to the na‐
tional security, foreign policy, or economy of the United
No. 15‐1175 3
States.” 50 U.S.C. § 1701(a). To counter this threat, the IEEPA
broadly authorized the President to:
[I]investigate, block during the pendency of an in‐
vestigation, regulate, direct and compel, nullify,
void, prevent or prohibit, any acquisition, holding,
withholding, use, transfer, withdrawal, transporta‐
tion, importation or exportation of, or dealing in, or
exercising any right, power, or privilege with re‐
spect to, or transactions involving, any property in
which any foreign country or a national thereof has
any interest by any person, or with respect to any
property, subject to the jurisdiction of the United
States.
Id. § 1702(1)(B). Additionally, violations of “any license, or‐
der, regulation, or prohibition” issued pursuant to the IEEPA
are unlawful and carry civil and criminal penalties. Id. § 1705.
In March 2003, President George W. Bush invoked the
IEEPA to issue Executive Order 13288, titled “Blocking Prop‐
erty of Persons Undermining Democratic Processes or Insti‐
tutions in Zimbabwe.” 68 Fed. Reg. 11457 (Mar. 6, 2003). This
order declared a “national emergency” in response to “an un‐
usual and extraordinary threat to the foreign policy of the
United States” arising from the actions and policies of certain
Zimbabwean government officials that were “undermin[ing]
Zimbabwe’s democratic processes or institutions, contrib‐
uting to the deliberate breakdown in the rule of law in Zim‐
babwe, to politically motivated violence and intimidation in
that country, and to political and economic instability in the
Southern African region.” Id.
To counter this threat, Executive Order 13288 prohibited
“[a]ny transaction or dealing by a United States person or
4 No. 15‐1175
within the United States in property or interests in property”
belonging to any of the special designated nationals (“SDNs”)
listed in the Annex. Id. Prohibited transactions or dealings in‐
clude “the making or receiving of any contribution of funds,
goods, or services to or for the benefit of any person listed in
the Annex.” Id. The order also prohibited “any conspiracy
formed to violate the prohibitions.” Id.
Among the seventy‐seven persons listed in the Annex
were Robert Gabriel Mugabe, the President; Simon Khaya
Moyo, the former Deputy‐Secretary for Legal Affairs (and
current Ambassador to South Africa); Emmerson
Mnangagwa, the Parliamentary Speaker; and Samuel Mum‐
bengegwi, the former Minister of Industry and International
Trade (and current Foreign Minister). Id. In November 2005,
President Bush issued Executive Order 13391, which reiter‐
ated the prohibitions described in Executive Order 13288 but
also took “additional steps,” such as expanding the list of
SDNs to include Gideon Gono, Governor of the Federal Re‐
serve Bank. See 70 Fed. Reg. 71201 (Nov 22, 2005). Both exec‐
utive orders remain in effect.
To effectuate these executive orders, the Department of
Treasury’s Office of Foreign Asset Control (“OFAC”) enacted
several regulations, commonly referred to as the “sanctions”
against the Zimbabwean SDNs. 31 C.F.R. § 541.101 et seq. Un‐
der 31 C.F.R. § 541.201(a)(1), property located within the
United States belonging to Zimbabwean SDNs is deemed
“blocked and may not be transferred, paid, exported, with‐
drawn, or otherwise dealt in.” Under 31 C.F.R. § 541.405, the
prohibited dealings with SDNs include “legal, accounting, fi‐
nancial, brokering, freight forwarding, transportation, public
No. 15‐1175 5
relations, or other services” and extend “to services per‐
formed in the United States or by U.S. persons, wherever lo‐
cated.” Pursuant to 31 C.F.R. § 541.204(b), “[a]ny conspiracy
formed to violate any of the prohibitions set forth in this part
is prohibited.” However, U.S. persons may apply for a license
from OFAC that, if granted, would permit them “to engage in
any transactions prohibited,” such as providing services to
SDNs, without violating these sanctions. 31 C.F.R.
§ 501.801(b).
B. Factual Background and Procedural History
From November 2008 until April 2010, Turner conspired
with Ben Israel to provide services to, or on behalf of, Zimba‐
bwean SDNs, without a license from the United States Treas‐
ury Department. Specifically, Turner and Ben Israel agreed to
provide public relations services—lobbying U.S. officials to
remove the sanctions, arranging for Zimbabwean officials to
meet with U.S. officials to discuss the removal of sanctions,
and assisting Zimbabwean officials in obtaining travel visas
to the United States, to meet with U.S. officials to discuss re‐
moving the sanctions. Turner and Ben Israel were promised
payment of $3,405,000 for their work.
On August 27, 2013, a grand jury returned an indictment
against Turner, charging the following: (1) Count One alleged
conspiring to act in the United States as an agent of a foreign
government without prior notification to the Attorney Gen‐
eral, in violation of 18 U.S.C. §§ 371 and 951(a); (2) Count Two
alleged acting in the United States as an agent of a foreign
government without prior notification to the Attorney Gen‐
eral, in violation of 18 U.S.C. § 951(a); and (3) Count Three al‐
leged willfully conspiring to provide services on behalf of, or
for the benefit of, Zimbabwean SDNs, in violation of IEEPA,
6 No. 15‐1175
50 U.S.C. § 1705(c), and 31 C.F.R. §§ 541.201, 541.204, and
541.405.1
A jury trial against Turner began on September 29, 2014.
During trial, the government presented evidence of Turner’s
and Ben Israel’s agreement with Zimbabwean SDNs to pro‐
vide lobbying services in exchange for $3,405,000. One key
piece of evidence was the Consulting Agreement, a document
which contained details of the arrangement and a distinctive
four‐installment payment structure keyed to specific events:
(1) $90,000 upon signing of the contract, (2) $1,105,000 upon
completion of a meeting in Zimbabwe, (3) $1,105,000 upon
completion of a meeting in South Africa, and (4) $1,105,000
upon completion of this project. The government then pre‐
sented evidence tying the Consulting Agreement to corre‐
sponding actions by Turner, Ben Israel, and the Zimbabwean
SDNs.
Additionally, the government presented evidence of
Turner’s and Ben Israel’s efforts to facilitate meetings and cor‐
respondence between U.S. officials and Zimbabwean SDNs.
The government also established that Turner never applied
for or received a license from the U.S. Treasury Department
to permit him to provide services to, or on behalf of, Zimba‐
bwean SDNs.
On October 10, 2014, the jury acquitted Turner on Counts
One and Two and convicted him on Count Three. The district
court held Turner’s sentencing hearing on January 20, 2015.
1 The August 27, 2013, indictment includes four counts, but only Counts
One, Two, and Four pertain to Turner. R. 38. Therefore, Count Four as
listed in the indictment is what is referred to as “Count Three” in Turner’s
case, for the purposes of his indictment, trial, and appeal.
No. 15‐1175 7
The district court determined that Turner’s advisory guide‐
lines range was 14 to 21 months, based on an offense level of
14 and a criminal history category of I. Subsequently, the dis‐
trict court sentenced Turner to a within‐guidelines range sen‐
tence of 15 months’ imprisonment and one year of supervised
release. Judgment was entered against Turner on January 21,
2015. Turner appealed.
II. ANALYSIS
On appeal, Turner raises several challenges to his pre‐trial
and trial proceedings. When necessary, we provide additional
factual background in order to fully address each claim.
First, Turner argues that the district court erred in admit‐
ting the Consulting Agreement into evidence as an authenti‐
cated coconspirator statement. Second, Turner contends that
the district court erred in its instructions to the jury for Count
Three, specifically contesting the court’s definition of “will‐
fulness,” its decision not to require unanimity with regard to
specific SDNs, and its inclusion of SDN Mumbengegwi.
Third, Turner argues that the district judge erred in his inter‐
actions with the jury after deliberations had begun, specifi‐
cally disputing the district judge’s replacement of juror Chism
and his ex parte communications with the jury.
A. Consulting Agreement
We begin by examining Turner’s challenge to the district
court’s admission of the Consulting Agreement into evidence
as a properly authenticated coconspirator statement, pursu‐
ant to Federal Rules of Evidence 901 and 801(d)(2)(E).
8 No. 15‐1175
On August 29, 2014, the government and Turner moved in
limine to admit and to bar, respectively, the Consulting Agree‐
ment—the document that the government argues outlined
Turner and Ben Israel’s agreement with officials to receive
$3,405,000 for their services.
The district court, on September 22, 2014, provisionally
granted the government’s motion “on the assumption that it
will introduce evidence at trial sufficient to support the fac‐
tual assertions made in its motion.” (R. 176 at 1–2.) The critical
facts included the following: “that (1) Ben Israel and Turner
acted in accordance with the Consulting Agreement’s distinc‐
tive payment structure and (2) Ben Israel, or someone acting
on his behalf, sent the Consulting agreement to [a National
City Bank employee] to explain the purpose of the incoming
wire from [Monica] Mutsvangwa.” (Id. at 14.) The district
court assessed that, assuming the government introduced ev‐
idence establishing these facts, the Consulting Agreement
was admissible as an authenticated coconspirator statement.
(Id. at 14–15)
Then, during trial, the government presented evidence for
these factual assertions and moved to admit the Consulting
Agreement into evidence as a coconspirator statement. (Trial
Tr. 57, Oct. 1, 2014.) Turner responded: “No objection.” (Id.)
On appeal, Turner argues that the district court erred in
admitting the Consulting Agreement as a properly authenti‐
cated coconspirator statement, pursuant to Federal Rules of
Evidence 901 and 801(d)(2)(E). Specifically, he contends that
the Consulting Agreement was hearsay and that it was not
properly authenticated because the government presented in‐
sufficient evidence that Ben Israel was the declarant and that
No. 15‐1175 9
the Zimbabwe meeting took place in accordance with the
agreement’s payment structure. We disagree.
This court reviews a district court’s interpretation of the
Federal Rules of Evidence de novo but the district court’s deci‐
sion to admit evidence for abuse of discretion. United States v.
Mendiola, 707 F.3d 735, 738 (7th Cir. 2013). In Turner’s case,
the district court did not have to interpret the Federal Rules
of Evidence; it merely determined whether the Consulting
Agreement met the requirements for Rules 901 and
801(d)(2)(E). Accordingly, we review the district court’s ad‐
mission of the Consulting Agreement for an abuse of discre‐
tion.
Federal Rule of Evidence 901(a) provides that “[t]o satisfy
the requirement of authenticating … an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” The
authentication requirement can be fulfilled in a variety of
ways, including by evaluating “[t]he appearance, contents,
substance, internal patterns, or other distinctive characteris‐
tics of the item, taken together with all the circumstances.”
Fed. R. Evid. 901(b)(4); see also United States v. Fluker, 698 F.3d
988, 999 (7th Cir. 2012). “Only a prima facie showing of genu‐
ineness is required; the task of deciding the evidence’s true
authenticity and probative value is left to the jury.” Fluker, 698
F.3d at 999.
This court has upheld the authentication of document ev‐
idence under Rule 901(b)(4) where the declarant’s specific
identity was unknown but the content, other distinctive char‐
acteristics, and circumstances support that the declarant was
a coconspirator. See, e.g., United States v. Mokol, 957 F.2d 1410,
1420 (7th Cir. 1992) (holding that handwritten bribe sheets
10 No. 15‐1175
found in the defendant’s home containing dates, names, ini‐
tials, and amounts corroborated by other evidence were
properly authenticated under Rule 901(b)(4), despite an un‐
known author). In United States v. De Gudino, 722 F.2d 1351,
1355–56 (7th Cir. 1984), in affirming an alien‐smuggling con‐
viction, this court held that lists of smuggled aliens were
properly authenticated under Rule 901(b)(4), even though the
lists’ author was unknown. The De Gudino court held that
there was “prima facie evidence of … authenticity” based on
the testimony outlining the conspiracy’s smuggling tech‐
niques, the fact that the lists were seized from the “headquar‐
ters of the [illegal alien smuggling] operation,” and the con‐
tents of the lists, which included “names of smuggled aliens
and their sponsors, dates, telephone numbers, dollar figures,
and records of payment.” Id.
Similar to De Gudino, here, the district court did not abuse
its discretion in finding that the Consulting Agreement was
properly authenticated under Rule 901(b)(4), despite uncer‐
tainty regarding the identity of the declarant, based on its con‐
tent detailing the distinctive payment structure and the cir‐
cumstances surrounding its receipt.
First, the district court found, based on the government’s
anticipated evidence (which was presented at trial), that Ben
Israel and Turner acted in accordance with the Consulting
Agreement’s distinctive structure. The court noted “the Con‐
sulting Agreement’s distinctive payment structure,” which
called for four payments keyed to specific events: (1) $90,000
upon signing of this contract, (2) $1,105,000 upon completion
of a meeting in Zimbabwe, (3) $1,105,000 upon completion of
a meeting in South Africa, and (4) $1,105,000 upon completion
of this project. (R. 176 at 3, 10.) The court observed, that this
No. 15‐1175 11
payment structure had a “high degree of correspondence”
with Ben Israel’s and Turner’s actions, including their at‐
tempts to receive the $90,000 initial payment, their activities
to arrange a South Africa meeting and “phase three visit to
Zimbabwe,” and their ongoing efforts to be paid by Zimba‐
bwean officials. (Id. at 10–11.)
Next, the district court determined, again based on the
government’s anticipated evidence (which was presented at
trial), that Ben Israel or a coconspirator sent the Consulting
Agreement to a bank employee to explain the incoming wire
from Monica Mutsvangwa. (Id. at 12–15.) It found that in re‐
sponse to a request from Ben Israel’s bank for documentation
to explain the incoming wire from Mutsvangwa’s account, the
Consulting Agreement was sent the next business day in an
email from the account “princeasiel@aol.com,” which was
used by Ben Israel. (Id. at 13–14.)
Taken together, the district court’s assessments relating to
the Consulting Agreement’s distinctive characteristics and re‐
ceipt in connection with a coconspirator are more than suffi‐
cient to constitute “prima facie evidence of … authenticity,”
despite uncertainty surrounding the specific declarant. De
Gudino, 722 F.2d at 1355. This is all that is required under Rule
901(b)(4). Fluker, 698 F.3d at 999.
In addition, Turner asserts that the Consulting Agreement
was inadmissible hearsay. Because the Consulting Agreement
was a coconspirator statement, we hold that it was properly
admitted as non‐hearsay, pursuant to Rule 801(d)(2)(E).
Federal Rule of Evidence 801(d)(2)(E) provides that “a
statement … is not hearsay” if it “is offered against an oppos‐
12 No. 15‐1175
ing party and … was made by the party’s coconspirator dur‐
ing and in furtherance of the conspiracy.” A statement is ad‐
missible under Rule 801(d)(2)(E) “if the government proves
by a preponderance of the evidence that (1) a conspiracy ex‐
isted; (2) the defendant and the declarant were members of
the conspiracy; and (3) the statement was made during the
course and in furtherance of the conspiracy.” United States v.
Cruz‐Rea, 626 F.3d 929, 937 (7th Cir. 2010).
In this case, the facts establishing the Consulting Agree‐
ment’s authenticity under Rule 901(b)(4) also satisfy Rule
801(d)(2)(E). See De Gudino, 722 F.2d at 1356 (“The contents of
the [authenticated documents] also establish the [authenti‐
cated documents] as co‐conspirator statements admissible
under rule 801(d)(2)(E) of the Federal Rules of Evidence.”). As
discussed, the government provided evidence, based on the
Consulting Agreement’s distinctive characteristics and the
circumstances surrounding its transmission, that the Consult‐
ing Agreement’s declarant was a coconspirator who shared
the document to help achieve payment for lobbying services,
a goal of the conspiracy. Moreover, Turner’s argument about
the uncertain identity of the Consulting Agreement’s declar‐
ant also fails in the context of Rule 801(d)(2)(E). This court has
explicitly held that it is “wrong to suggest that it is necessary
to know the precise identity of a coconspirator before state‐
ments can be admitted under Rule 801(d)(2)(E).” United States
v. Smith, 223 F.3d 554, 570 (7th Cir. 2000). Hence, the district
court did not abuse its discretion in admitting the authenti‐
cated Consulting Agreement as a coconspirator statement un‐
der Rule 801(d)(2)(E).
No. 15‐1175 13
B. Instructions to the Jury
Next, Turner contests the district court’s jury instructions
for Count Three on three grounds. First, he argues that the
court erred in its definition of “willfully” or “willfulness.”
Second, Turner contends that the court erred by not requiring
jury unanimity with regard to the specific Zimbabwean SDNs
for whom services were provided. Third, he argues that the
court constructively amended the indictment by including
SDN Mumbengegwi.
“We review de novo whether jury instructions accurately
summarize the law, but give the district court substantial dis‐
cretion to formulate the instructions provided that the in‐
structions represent a complete and correct statement of the
law.” United States v. Daniel, 749 F.3d 608, 613 (7th Cir. 2014)
(internal quotation marks omitted). If this court “determine[s]
that the instructions accurately summarize the law, [we] re‐
view[] the district court’s phrasing of the instruction for abuse
of discretion. Reversal is warranted only where the reviewing
court is left with the definite and firm conviction that a mis‐
take has been committed.” Id. (citation and internal quotation
marks omitted).
1. Willfulness Definition
Turner starts by disputing the district court’s definition of
“willfulness” or “willfully.”
The district court’s jury instructions stated: “Count Three
of the indictment charges [Turner] with willfully conspiring
to provide services on behalf of and for the benefit of certain
specially designated nationals, specifically Robert Mugabe,
Gideon Gono, Simon Moyo, or Samuel Simbarashe Mum‐
bengegwi, without first having obtained a license from the
14 No. 15‐1175
United States Department of the Treasury.” (Trial Tr. vol. VI,
130, Oct. 7, 2014.) The district court provided the following
definition for the term “willfully:”
As used in Count 3, the defendant acted willfully if
he acted intentionally and purposefully with the in‐
tent to do something the law forbids, that is, with
bad purpose to disobey or to disregard the law. The
defendant need not be aware of the specific law or
rule that … his conduct would violate. In other
words, the defendant does not have to know that his
conduct would violate a particular law, executive
order or federal regulation, but he must act with the
intent to do something the law forbids.
(Trial Tr. vol. VI, 131, Oct. 7, 2014.)
On appeal, Turner claims that the district court’s defini‐
tion misstates the law. He argues, instead, that the definition
of “willfulness” requires “that the government must show
that [Turner] acted with ‘the specific intent to do something
the law forbids … i.e. providing services to Specially Desig‐
nated Nationals.’” (Appellant Br. 27.)
In the present case, the district court’s definition of “will‐
fulness” accurately summarized the law because it is con‐
sistent with the Supreme Court’s decision in Bryan v. United
States, 524 U.S. 184 (1998).
In Bryan, the Supreme Court addressed the meaning of the
term “willfully” for a defendant convicted of “‘willfully’ deal‐
ing in firearms without a federal license.” Id. at 186. The Court
held that the traditional definition of “willfully” applied—
that the government only needed to prove “knowledge that
the conduct is unlawful.” Id. at 192. The court expressly re‐
jected the defendant’s arguments for “a more particularized
No. 15‐1175 15
showing”—that the defendant knew that a specific federal
law prohibited his conduct. Id. In reaching its conclusion, the
Court affirmed the district court’s explanation of the term
“willfully,” which read:
A person acts willfully if he acts intentionally and
purposely and with the intent to do something the
law forbids, that is, with the bad purpose to disobey
or to disregard the law. Now, the person need not be
aware of the specific law or rule that his conduct
may be violating. But he must act with the intent to
do something the law forbids.
Id. at 190 (internal quotation marks omitted).
Here, the district court did not commit any error. The dis‐
trict court accurately stated the law—its definition of “will‐
fully” is consistent with Bryan’s holding that, for willfulness,
“the traditional rule that ignorance of the law is no excuse;
knowledge that the conduct is unlawful is all that is re‐
quired.” Id. at 196. Turner’s argument for a specific intent re‐
quirement was the very argument rejected by the Bryan
Court. Id. at 192–96. Additionally, the district court did not
abuse its discretion with its phrasing—its definition of “will‐
fully” closely tracks the explanation of “willfully” upheld by
the Bryan Court.
Turner contends that this court has sometimes required a
more particularized definition of “willfulness,” relying pri‐
marily on United States v. Dobek, 789 F.3d 698 (7th Cir. 2015).
In Dobek, an engineer who sold canopy seals to the Venezue‐
lan Air Force was convicted of exporting munitions to Vene‐
zuela without a State Department license, in violation of 22
U.S.C. § 2778(b)(2), (c), and 22 C.F.R. §§ 121.1, 123.1, 127.1. Id.
at 699. In holding that “willfully” required “knowledge by the
16 No. 15‐1175
defendant … that he needed a license to export the munitions
that he exported,” the Dobek court provided the following rea‐
soning:
Ordinarily a person is conclusively presumed to
know the law … But this principle, sensible when a
person is bound to know that what he is doing is
wrong, breaks down when a person who does not
know of the law prohibiting what he does has no
reason to think that heʹs acting wrongfully. Espe‐
cially when the law is a regulation rather than a stat‐
ute. He may not be aware of a regulation imposing
an embargo on the export of a product to a particular
country when it is a product that is commonly ex‐
ported. The United States is the worldʹs largest ex‐
porter of munitions.
Id. at 700. The Dobek court, however, affirmed the defendant’s
conviction under harmless error review because “the evi‐
dence that the violation was willful was overwhelming,” even
under a heightened willfulness definition. Id. at 702.
In this case, even if we were to give Turner the benefit of a
heightened willfulness definition, similar to the standard in
Dobek, his claim would still fail under harmless error review,
similar to the outcome in Dobek. Turner arranged meetings
and correspondence between U.S. and Zimbabwean officials
in order to discuss the lifting of the “sanctions”—Executive
Orders 13288 and 13391 and 31 C.F.R. § 541.101 et seq. In other
words, he provided services to the SDNs to assist in lifting the
prohibitions against providing services to the SDNs. Turner
was clearly aware that his conduct was unlawful, even under
a heightened definition of willfulness, and therefore “the evi‐
dence that [Turner’s] violation was willful was overwhelm‐
ing.” Dobek, 789 F.3d at 702.
No. 15‐1175 17
Accordingly, the district court’s definition of “willfully”
was proper and there was no abuse of discretion in its phras‐
ing.
2. Jury Unanimity Regarding Specific SDNs
Turner also argues that “the jury should have had to unan‐
imously decide which Specially Designated National Turner
conspired to provide services on behalf of” (Appellant Br. 30.)
Turner had presented this argument as part of his proposed
jury instructions, which the court rejected.
Instead, the district court provided the following instruc‐
tions for the first element of Count Three: “To find the defend‐
ant guilty of the crime charged in Count 3, you must find that
the government has proven … that two or more U.S. persons
agreed to provide services on behalf of or for the benefit of a
specially designated national.” (Trial Tr. vol. VI, 130, Oct. 7,
2014.)
The Supreme Court has held that while jury unanimity is
required for each principal element of a crime, “‘a federal jury
need not always decide unanimously which of several possi‐
ble sets of underlying brute facts make up a particular ele‐
ment, say, which of several possible means the defendant used
to commit an element of the crime.’” Daniel, 749 F.3d at 613
(quoting Richardson v. United States, 526 U.S. 813, 817 (1999).
As a result, in Turner’s case, we must determine if the par‐
ticular SDN on whose behalf Turner conspired to provide ser‐
vices for constitutes an element or a means of the offense. We
conclude that it is a means, rather than an element, of Turner’s
offense.
We start by examining the language of the statute and reg‐
ulations underlying Turner’s offense. Turner was convicted
18 No. 15‐1175
of conspiring to provide services on behalf of, or for the ben‐
efit of, Zimbabwean SDNs, in violation of the IEEPA, 50
U.S.C. § 1705(c), and 31 C.F.R. §§ 541.201, 541.204, and
541.405.
The IEEPA makes it unlawful for “a person to violate, at‐
tempt to violate, conspire to violate, or cause a violation of
any license, order, regulation, or prohibition issued under this
chapter.” 50 U.S.C. § 1705(a). This offense does not mention
SDNs, let alone require a unanimous jury finding as an ele‐
ment the specific SDNs for whom services were performed.
We next consider 31 C.F.R. §§ 541.201, 541.204, and
541.405, which implement Executive Orders 13288 and 13391,
which, in turn, were issued pursuant to the IEEPA. Sec‐
tion 541.201(a)(1) prohibits transactions of all property be‐
longing to “[t]he persons listed in the Annex to Executive Or‐
der 13288 of March 6, 2003, as amended by Executive Order
13391 of November 22, 2005.” There, “persons” are the Zim‐
babwean SDNs. Section 541.204(b) prohibits “[a]ny conspir‐
acy formed to violate any of the prohibitions set forth in this
part.” Section 541.405(a)(1) prohibits “services performed” by
U.S. persons “[o]n behalf of or for the benefit of a person
whose property and interests in property are blocked pursu‐
ant to § 541.201(a).”
Again, there is nothing in the language of these regula‐
tions to indicate that the jury must unanimously find as an
element the specific SDNs for whom services were per‐
formed. In fact, the language of the regulations is worded
broadly, so as to encompass any combination or group of
SDNs—“[t]he persons listed in the Annex” and “a person whose
property and interests in property are blocked”
§§ 541.201(a)(1), 541.405(a)(1) (emphasis added). Thus, the
No. 15‐1175 19
relevant statutory and regulatory language indicates that the
specific SDN is a means, rather than an element, of Turner’s
offense.
Turner’s argument is similar to the one rejected by this
court in United States v. Griggs, 569 F.3d 341 (7th Cir. 2009). In
Griggs¸ a defendant convicted of conspiring to further a Ponzi
scheme challenged the jury instructions, arguing that the jury
should have been required to agree unanimously on an overt
act that at least one of the conspirators had committed. Id. at
342–43. Our decision in Griggs rejected the defendant’s argu‐
ment, holding that “[t]he law distinguishes between the ele‐
ments of a crime, as to which a jury must be unanimous, and
the means by which the crime is committed.” Id. at 343 (citing
Richardson, 526 U.S. at 817–18 and Schad v. Arizona, 501 U.S.
624, 631, 649 (1991)). Applying this rule, we determined that
the jurors had agreed unanimously on the defendant’s
crime—“that he had taken a step toward accomplishing the
goal of the conspiracy.” Id. at 344. We further held, in contrast,
that it was “inconsequential” that the jury might have disa‐
greed on the means of the crime, namely the overt acts or spe‐
cific steps taken in carrying out the offense. Id.2
Like Griggs, here, as the government points out, even if the
jurors in Turner’s case had disagreed on which particular SDN
that Turner conspired to provide services for, such disagree‐
ment would not mean that the jurors also disagreed on
2 We note that the Griggs court did assess that the jury “may not have been
unanimous about the elements of [defendant’s] crime” but then deter‐
mined it was harmless error. 569 F.3d at 344–45. However, this assessment
does not affect Griggs’s conclusion, pursuant to Richardson, that a crime
and its elements required jury unanimity, but the means of committing
the crime did not.
20 No. 15‐1175
whether Turner conspired to provide services for an SDN. (Ap‐
pellee Br. 32–33.) In other words, the identities of the particu‐
lar SDNs are a means, not an element, of Turner’s offense.
Therefore, it did not require jury unanimity.
Turner relies heavily on Richardson to support his argu‐
ment that the particular SDN for whom services were pro‐
vided is an element of the offense. In Richardson, the Supreme
Court interpreted the Continuing Criminal Enterprise
(“CCE”) statute, 21 U.S.C. § 848, holding that to convict a de‐
fendant, jurors must unanimously agree not only that the de‐
fendant committed some “continuing series of violations” but
also on “each individual violation” that made up the contin‐
uing series. 526 U.S. at 820, 824 (internal quotation marks
omitted). In reaching this conclusion, the Supreme Court ex‐
amined the language and legal tradition of the CCE statute in
order to determine congressional intent, as well as the poten‐
tial unfairness that would befall defendants if the predicate
offenses were not deemed to be elements. Id. at 818–24; see also
United States v. Pollock, 757 F.3d 582, 587 (7th Cir. 2014) (sum‐
marizing Richardson’s holding and reasoning).
Turner’s reliance on Richardson, however, is misplaced. In
United States v. Gibson, in declining to apply Richardson to re‐
quire that the specific form of pecuniary gain was an element
of murder‐for‐hire under 18 U.S.C. § 1958(a), this court held
that Richardson’s analysis was “specific to the CCE statute.”
530 F.3d 606, 611–12 (7th Cir. 2008). In the present case, Turner
was convicted of violating the IEEPA, not the CCE statute,
and therefore Richardson does not apply. Turner also fails to
present any cogent arguments for applying Richardson to the
IEEPA based on statutory language, legal tradition, or unu‐
No. 15‐1175 21
sual risk to defendants—the types of arguments found per‐
suasive in Richardson. See Pollock, 757 F.3d at 587 (declining to
extend Richardson to a felon in possession offense after analy‐
sis under the “Richardson factors”). Because Richardson’s anal‐
ysis was specific to the CCE statute, this court and our sister
circuits have routinely declined to apply it to other offenses.
See, e.g., id. (rejecting the argument that possession of a specific
firearm was an element of a felon in possession charge under
18 U.S.C. § 922(g)); United States v. Lee, 317 F.3d 26, 37–40 (1st
Cir. 2003) (rejecting the argument that the specific devices
possessed was an element of possession of counterfeit or un‐
authorized access devices under 18 U.S.C. § 1029(a)(3)). As
such, we decline to apply Richardson to Turner’s case.
In the alternative, Turner contends that “[a]t a minimum,
the particular SDN is an object of the conspiracy,” which also
requires jury unanimity. (Appellant Br. 33.) This contention is
meritless and simply repackages his previous argument. For
Count Three, Turner’s jury instructions named four SDNs—
Mugabe, Gono, Moyo, and Mumbengegwi—and required
that the government prove as an element “that two or more
US persons agreed to provide services on behalf of or for the
benefit of a specially designated national.” (Trial Tr. vol. VI,
130, Oct. 7, 2014 (emphasis added).) In other words, the object
of the conspiracy was providing services for any combination
of the named SDNs. As discussed, the identity of the particu‐
lar SDN is a means, not an element of Turner’s offense. There‐
fore, Turner’s contention fails.
3. Constructive Amendment
Turner also contends that the district court’s jury instruc‐
tions constructively amended his indictment because Count
Three of the indictment did not include SDN Mumbengegwi,
22 No. 15‐1175
but the court’s jury instructions for Count Three did include
this individual.
Turner raises his claim under the Fifth Amendment,
which provides that “[n]o person shall be held to answer for
a … crime, unless on a presentment or indictment of a Grand
Jury.” U.S. Const. amend. V. “A constructive amendment to
an indictment occurs when either the government …, the
court …, or both, broadens the possible bases for conviction
beyond those presented by the grand jury.” United States v.
Cusimano, 148 F.3d 824, 829 (7th Cir. 1998) (internal quotation
marks omitted). “However, not all variations in proof that
contradict or supplement verbiage in the indictment rise to
the level of constructive amendments.” United States v. Phil‐
lips, 745 F.3d 829, 832 (7th Cir. 2014) (internal quotation marks
omitted). Rather, the offense “charged in the indictment must
be materially different or substantially altered at trial, [so that]
it is impossible to know whether the grand jury would have
indicted for the crime actually proved.” Id. (alteration in orig‐
inal and internal quotation marks omitted).
In this case, Count Three of the indictment charged Turner
and Ben Israel with “willfully conspir[ing] to provide services
on behalf of and for the benefit of Specially Designated Na‐
tionals Robert Mugabe, Gideon Gono, and Simon Khaya
Moyo,” in violation of the IEEPA and implementing regula‐
tions. (R. 38 at 18.)
After closing arguments, however, the district court in‐
structed the jury that, “Count Three … charges the defendant
with willfully conspiring to provide services on behalf of and
for the benefit of certain specially designated nationals, spe‐
No. 15‐1175 23
cifically, Robert Mugabe, Gideon Gono, Simon Moyo, or Sam‐
uel Simbarashe Mumbengegwi.” (Trial Tr. 130, vol. VI, Oct. 7,
2014. (emphasis added))
Because Turner did not raise an objection below, this court
reviews his constructive amendment claim for plain error.
Cusimano, 148 F.3d at 828. In this circumstance, we will only
reverse if the constructive amendment constituted “a mistake
so serious that but for it the [defendant] probably would have
been acquitted in order for us to reverse.” Id. (alteration in
original and internal quotation marks omitted).
In this case, Turner’s argument fails because it is similar to
the one rejected by this court in Phillips. In Phillips, the defend‐
ant was charged with conspiracy to defraud the government
and presenting a false claim, and the indictment only men‐
tioned two fraudulent tax returns. 745 F.3d at 832. During
trial, however, the government introduced evidenced of two
additional fraudulent tax returns, arguing that “the unusual
similarities among the four returns were proof of the conspir‐
acy.” Id. On appeal, the defendant argued that a constructive
amendment had occurred.
The Phillips court rejected defendant’s constructive
amendment claim because “the indictment can be read natu‐
rally to include all four tax returns.” Id. The Phillips court fur‐
ther held that the fact that only two returns are mentioned in
the indictment “does not preclude the government from rely‐
ing upon extremely similar evidence that also falls within the
charged dates and of which [the defendant] clearly had no‐
tice.” Id. Consequently, the Phillips court held that no con‐
structive amendment occurred. Id. at 833.
24 No. 15‐1175
Similarly, there was no constructive amendment of
Turner’s indictment. As in Phillips, Count Three of Turner’s
indictment can be read naturally to include SDN Mumbeng‐
egwi. Count Three explicitly states, “Paragraphs 1(a), (b), (c),
(d) of Count One are reallaged here,” and Paragraph 1(b)(v)
of Count One specifically identifies Mumbengegwi as an
SDN. (R. 38 at 2, 18.) Furthermore, like in Phillips, the evidence
of Turner’s relationship with SDN Mumbengegwi was ex‐
tremely similar to the evidence of Turner’s relationship with
the other listed SDNs. And Turner clearly had notice regard‐
ing SDN Mumbengegwi, who was specifically identified in
Count One of the indictment. Phillips confirmed that the “ad‐
mission of evidence intricately related to the charged crimes
… does not constructively amend the indictment,” and we
hold that this principle firmly controls Turner’s claim. 745
F.3d at 832 (quoting United States v. Alhalabi, 443 F.3d 605, 614
(7th Cir. 2006). Thus, Turner’s indictment was not construc‐
tively amended.
C. Interactions with Jury after Deliberations Began
Lastly, Turner challenges the district court’s interactions
with the jury after deliberations had begun.
On October 7, 2014, at 3:05 p.m., the district judge asked
the jurors to begin deliberations. The district judge then told
the two alternate jurors that they could go home but were not
formally excused because it was possible their services might
still be needed. (Trial Tr. vol. VI, 137, Oct. 7, 2014.)
Approximately 45 minutes into deliberations, juror Chism
sent the district judge a note that stated: “I have a funeral to
go to tomorrow so I would like to know what you would like
me to do.” (Id. at 142.) The district judge discussed the note
No. 15‐1175 25
with the government and Turner, and they agreed that the
judge could confer with Chism about the situation ex parte in
the jury room.
As the judge was walking to the jury room, he received
another note from the jury inquiring about the schedule and
Chism’s request. (Id. at 145.) The judge then had an ex parte
conversation with Chism in front of the jury. Chism informed
the judge that that the funeral was for his cousin, it would take
place at 11 a.m. the following morning, and that he would not
be available to deliberate at all the following day. The judge
described Chism as “annoyed” and “angry.” (Id. at 146, 151.)
The judge returned to the courtroom and conferred with
the government and Turner. The judge decided not to excuse
Chism for the following reasons: he had not mentioned the
funeral until deliberations had begun, another juror had re‐
quested time off for an uncle’s funeral, and neither funeral
was for an immediate family member.
The district judge returned to the jury room and commu‐
nicated ex parte his decision with the jury, stating, “[w]eʹve de‐
cided that you need to go ahead and deliberate.” (Trial Tr. vol.
VII, 5, Oct. 8, 2014.) According to the judge, Chism responded
that “he would not return the following day regardless of the
court’s order.” (R. 233 at 1.)
Again, the judge went back to the courtroom and dis‐
cussed the situation with the government and Turner. Ulti‐
mately, the judge decided to excuse Chism. He reasoned that
“deliberations had barely begun (if at all)” and if he allowed
Chism to take off the following day, he would also have to
allow the other juror to go to a funeral, potentially extending
the deliberations for over a week. (Id. at 2.)
26 No. 15‐1175
On October 8, 2014, the next alternate juror, Timothy
Lambin, was called. After Lambin assured the district judge
that he had not discussed the case with anyone, the district
judge instructed the jury to begin deliberations from the be‐
ginning. On October 10, 2014, the jury reached its verdict.
On appeal, Turner argues that the district judge erred by:
(1) replacing juror Chism with an alternate and (2) engaging
in ex parte communications with the jury.
1. Replacement of Juror Chism with an Alternate
Turner first argues that the district judge improperly re‐
placed Chism with an alternate.
This court has held that a district court has discretion to
replace a deliberating juror, pursuant to Federal Rule of Crim‐
inal Procedure Rule 24(c)(3), which provides:
Retaining Alternate Jurors. The court may retain alter‐
nate jurors after the jury retires to deliberate. The
court must ensure that a retained alternate does not
discuss the case with anyone until that alternate re‐
places a juror or is discharged. If an alternate re‐
places a juror after deliberations have begun, the
court must instruct the jury to begin its deliberations
anew.
United States v. Warner, 498 F.3d 666, 688–89 (7th Cir. 2007).
Accordingly, this court reviews a district court’s replace‐
ment of a deliberating juror with an alternate for an abuse of
discretion. Id. at 690. If the district court has a “legitimate basis
for th[e] decision [to replace a juror], there is no abuse of dis‐
cretion.” Id. (alteration in original) (emphasis added and in‐
ternal quotation marks omitted).
No. 15‐1175 27
Here, the district judge had a legitimate basis for excusing
Chism. According to the district judge, Chism was “annoyed”
and “angry,” and he had declared that he would not return
the following day regardless of the district court’s order. This
court has stated, “there is hardly anything that would make a
juror less able to serve than his failure to show up.” United
States v. Almonacid, 70 F. App’x 390, 392 (7th Cir. 2003); see also
United States v. Peters, 617 F.2d 503, 505 (7th Cir. 1980) (“[I]t is
difficult to imagine a more complete disqualification than a
failure to appear.”). Thus, the district court did not abuse its
discretion in replacing Chism with an alternate.
Turner argues that the district court erred in not demon‐
strating “good cause” to dismiss Chism.3 This argument is
without merit because it is based on the incorrect Federal Rule
of Criminal Procedure. Turner’s “good cause” argument and
supporting cases are all premised on Rule 23(b)(3), which pro‐
vides: “[a]fter the jury has retired to deliberate, the court may
permit a jury of 11 persons to return a verdict, even without a
stipulation by the parties, if the court finds good cause to ex‐
cuse a juror.” See United States v. Araujo, 62 F.3d 930, 931 (7th
Cir. 1995); United States v. Patterson, 26 F.3d 1127, 1128 (D.C.
Cir. 1994); United States v. McFarland, 34 F.3d 1508, 1511 (9th
Cir. 1995) (discussing Rules 23 and 24 but analyzing the dis‐
missal of a juror for “just cause” under Rule 23); United States
v. Tabacca, 924 F.2d 906, 913–15 (9th Cir. 1991). In contrast,
3 Turner uses the term “just cause” in his argument. However, “[i]n cur‐
rent Rule 23(b), the term ‘just cause’ has been replaced with the more fa‐
miliar term ‘good cause,’ that appears in other rules. No change in sub‐
stance is intended.” Fed. R. Crim. P. 23(b), 2002 advisory committee note.
28 No. 15‐1175
here, the district judge replaced Chism pursuant to Rule
24(c)(3). Consequently, Turner’s argument fails.
2. Ex Parte Communications with the Jury
Turner next contends that the district judge had improper
ex parte communications with the jury. He raises his claim un‐
der the Sixth Amendment’s Confrontation Clause, the Four‐
teenth Amendment’s Due Process Clause, and Federal Rule
of Criminal Procedure 43.
This court has explained that a “defendant has a constitu‐
tional right to be present at all critical stages of a prosecution,
but this right does not extend to every interaction between the
court and the jury.” Winters v. Miller, 274 F.3d 1161, 1168 (7th
Cir. 2001) (citing United States v. Gagnon, 470 U.S. 522, 526
(1985)). The “mere occurrence of an ex parte conversation be‐
tween a trial judge and a juror does not constitute a depriva‐
tion of any constitutional right. The defense has no constitu‐
tional right to be present at every interaction between a judge
and a juror, nor is there a constitutional right to have a court
reporter transcribe every such communication.” United States
v. Bishawi, 272 F.3d 458, 461 (7th Cir. 2001) (quoting Rushen v.
Spain, 464 U.S. 114, 119 (1983) (Stevens, J., concurring in judg‐
ment)). Instead, “the constitutional right to presence … exists
where there is a reasonably substantial relation to the fullness
of opportunity to defend against the charge and to the extent
that a fair and just hearing would be thwarted by the defend‐
ant’s absence.” Id. at 461–62. (citing Gagnon, 470 U.S. at 526).
Additionally, “[t]he broader, procedural right to be present
afforded by Federal Rule of Criminal Procedure 43 is likewise
not without limits.” Id. at 462.
No. 15‐1175 29
In this case, Turner challenges the district judge’s ex parte
communications with the jury, including his “conversation
with the jury regarding replacing juror Chism” and his com‐
ment that “we are not going to be able to do this again …, it’s
only that you had just begun that I am going to excuse” some‐
body. (Appellant Br. 42.)
This court determines whether ex parte contact violates a
defendant’s constitutional or procedural right to presence un‐
der a harmless error standard. Bishawi, 272 F.3d at 462. Under
this standard, this court will only reverse if the error affects
the defendant’s “substantial rights,” which are those that af‐
fect the outcome of the case. Id. In other words, this court will
“look to see if the communications had a prejudicial effect on
the defendant and rendered the trial fundamentally unfair.”
Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004) (internal quo‐
tations marks omitted). We have held that “a right to presence
violation entitles the defendant to a new trial only if the ex
parte communication at issue likely affected the jury’s ver‐
dict.” Bishawi, 272 F.3d at 462.
In the present case, Turner’s claim does not survive harm‐
less error review because he fails to establish that the ex parte
communication likely affected the jury’s verdict.
As an initial matter, Turner persuasively asserts that his
procedural right to presence under Rule 43 was violated. Rule
43(a) “entitles a defendant to be present at all stages of his
trial,” and “[c]ommunication between the judge and the jury,
or a single juror, is one of those stages.” United States v. Press‐
ley, 100 F.3d 57, 59 (7th Cir. 1996) (citing Fed R. Crim P. 43(a)
and Rogers v. United States, 422 U.S. 35, 39 (1975)). Here, the
30 No. 15‐1175
district court engaged in ex parte communications with mem‐
bers of the jury without Turner or his counsel being present,
thereby violating Rule 43.
It is less clear, however, whether Turner has demonstrated
that he is entitled to a presumption of prejudice. We have held
that “[i]n a criminal case, any private communication … with
a juror during a trial about the matter pending before the jury is,
for obvious reasons, deemed presumptively prejudicial.”
Bishawi, 272 F.3d at 462. (alteration in original) (citing Remmer
v. United States, 347 U.S. 227, 229 (1954)). This presumption,
however, is “without question rebuttable.” Id. (citing Rushen,
464 U.S. at 118–19).
Here, the record shows that all of the district judge’s ex
parte communications with the jury pertained only to the re‐
placement of Chism, not the substance of the case. It is unclear
whether these communications relate to “the matter pending
before the jury” and at least one of our sister circuits has ex‐
pressly distinguished between ex parte contacts that are
“merely ministerial in nature” and those that constitute “sub‐
stantive communications.” United States v. Martin, 777 F.3d
984, 991 (8th Cir. 2015) (“A defendant is not prejudiced by ex
parte contacts between judge and jury that are merely minis‐
terial in nature and not substantive communications.”)
Regardless, even if Turner was entitled to a presumption
of prejudice, his claim fails to survive harmless error review
because these ex parte contacts did not likely affect the out‐
come of the case. The alleged ex parte conversations regarding
the replacement of Chism concerned a proper exercise of dis‐
cretion by the district court. And the district judge’s ex parte
comment had no determinable, much less a fundamentally
unfair, effect on the deliberations—Chism was replaced by an
No. 15‐1175 31
alternate and the jury subsequently returned a verdict. Thus,
there is nothing to suggest that these ex parte communications
impacted the outcome of the case.
Turner asserts that the other jurors might have disagreed
with Chism and the ex parte communications might have al‐
lowed them to effectuate his removal. His contention, how‐
ever, is pure speculation. Not only is this scenario unsup‐
ported, but it is unlikely given that the deliberations had
“barely begun (if at all)” and the jurors “had nothing to do
with making that decision [to replace Chism].” (Trial Tr. 7,
Oct. 8, 2014.)
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.