In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2562
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL R EESE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-01061—Virginia M. Kendall, Judge.
A RGUED O CTOBER 26, 2011—D ECIDED JANUARY 13, 2012
Before R IPPLE and H AMILTON, Circuit Judges, and
M YERSCOUGH, District Judge.
M YERSCOUGH, District Judge. On September 15, 2009,
a jury found Michael Reese, a supervising building in-
spector for the City of Chicago’s Department of Buildings,
guilty of one count of conspiracy to commit bribery
(18 U.S.C. § 371) and two counts of making false state-
Of the Central District of Illinois, sitting by designation.
2 No. 10-2562
ments to federal agents (18 U.S.C. § 1001(a)(2)). In
June 2010, the district court sentenced Reese to a total of
60 months’ imprisonment—51 months’ imprisonment
on Count I and 9 months’ imprisonment on each of
Counts 2 and 3, to be served concurrently.
Reese appeals, arguing the district court erred by admit-
ting testimony about the 2005 gift list of Beny Garneata,
a City of Chicago businessman, and admitting the list
itself. Reese also argues the court erred by barring the
admission of recordings between Reese and Catherine
Romasanta, one of the witnesses who testified against
him, which contained self-exculpatory statements.
Finally, Reese argues the court erred by holding him
accountable for more than $117,000 in bribes (the court
actually held him accountable for $112,500), which
resulted in an eight-level increase to Reese’s offense
level under the United States Sentencing Guidelines.
Although the district court erred by admitting the
2005 gift list as a business record, the error was harmless.
Further, the court did not err by admitting testimony
about the gift list and barring Reese from introducing
the recordings between Reese and Romasanta. Finally,
the court did not err by holding Reese accountable for
$112,500 in bribes. Therefore, we affirm.
I. BACKGROUND
In December 2008, the Government charged Reese, a
supervising building inspector in the City of Chicago’s
Department of Buildings, with one count of conspiracy to
No. 10-2562 3
commit bribery and two counts of making false state-
ments to federal agents. The conspiracy count alleged
that, between early 2005 and mid-December 2006, Reese
conspired with David Johnson, a building inspector
with the City of Chicago, Sorin Adrian Oros, a building
contractor, and others known and unknown. According
to the Government, Reese and Johnson accepted
money from individuals, including Oros, and referred
individuals to each other in exchange for providing
certain services, such as issuing certificates of occupancy,
expediting permit approvals, abating code violations,
and obtaining unit change approvals.
A. Summary of the Evidence Presented at the Septem-
ber 2009 Trial
Reese’s coconspirators testified at trial, including John-
son and Romasanta, who cooperated with the Govern-
ment, and Oros, who was found guilty of bribery and
testified under a grant of immunity. The Government
also played for the jury several recordings between
Reese and “Danny,” the confidential informant, between
Johnson and Danny, and between Reese and Johnson.
Johnson testified that over a number of years, he and
Reese referred individuals to each other to provide
certain official services in exchange for a bribe. These
services included building unit changes, code violation
changes, putting permits and plans through the system,
and removing stop work orders. Sometimes Johnson
and Reese shared the bribe money with each other.
4 No. 10-2562
Johnson introduced Greg Jackson, an investor and
contractor, to Reese. In February 2007, Jackson told
Johnson that Reese wanted $10,000 to take care of a
project on South Prairie. (The district court instructed
the jurors that they could only consider that testimony
as context for the February 2007 recording and not for
the truth of the matter asserted.) In a February 2007
recording between Defendant and Johnson, Reese told
Johnson, “Make that motherfucker come up with that
number.” Johnson understood that to mean that Reese
wanted Johnson to put pressure on Jackson to pay the
$10,000. Reese also stated, “[T]hat’s why I came in with
high because I know this motherfucker he gonna be
sitting.” Johnson explained Reese was referring to the
number that he gave Jackson on how much it would cost
to “take care of the problem.”
Johnson also testified that Reese introduced him to
Beny Garneata, an expeditor and electrical contractor. In
exchange for $4,000, Johnson helped Garneata get
certain permits and plans through the system.
Oros testified that he paid Reese a bribe several times
in exchange for Reese changing information in the City’s
computer system (also referred to as “mainframe
changes”) to reflect the number of units Oros had in his
buildings. In 2005, access rights to the computer system
were changed and only certain administrative personnel
had the ability to edit, update, and delete information
in the computer database. When Reese could no longer
make the changes for Oros, Reese introduced Oros to
Johnson, who knew an administrative assistant with
No. 10-2562 5
access to the computer system. Oros thereafter paid
Johnson to have the changes made in the computer
system. Oros also paid Johnson several times for ob-
taining zoning stamps.
In December 2006, Johnson and Oros were arrested
when Johnson met with Oros to pick up $12,000 in ex-
change for getting zoning approvals on architectural
plans. During the January 2007 conversation between
Johnson and Reese, Johnson told Reese he had “two
pieces” that he needed to get rid of, referring to the two
architectural drawings Johnson had received from
Oros. Reese asked Johnson if he wanted Reese to “holler
at him,” which Johnson understood to mean that
Reese would get in touch with Oros about returning
the drawings. Reese asked Johnson, “They done?” to
which Johnson responded, “They done. Darryl got them
stamped off at City Hall.”
Romasanta, a former expeditor who worked for
Garneata, testified that she took bribes from contractors
and developers and passed them on to City inspectors,
including Reese. (An expeditor is a private company
or a person employed by a private company who repre-
sents the building owner or investor and helps the
owner or investor obtain building permits more
quickly.) Romasanta also testified that on one occasion,
she handed Reese an easy permit application. Reese
handed the documents to Johnson and told him “to go do
his thing.” Romasanta gave Reese $1,500, and Johnson
returned with the approved application.
Romasanta testified about Garneata’s practice of distrib-
uting gift cards to City officials at Christmas. Garneata
6 No. 10-2562
told Romasanta that they “needed to take care of the
inspectors.” Between 2003 and 2005, Romasanta saw a
list reflecting gift cards for City inspectors. In 2005,
Romasanta delivered a gift card to Reese. In 2006, Reese
called Romasanta and asked her if Garneata was doing
anything for inspectors that year.
Romasanta also testified about Garneata’s hand-
written 2005 gift list, which the district court admitted
into evidence. One of the names on the 2005 gift list
was “Insp. Reesse[sic]—$200.” Romasanta identified the
individuals named on the list, including Reese.
Dwayne Pierre-Antoine testified that in October 2005,
he went to the building department regarding some
building violations on his property. Pierre-Antoine ex-
plained the situation to Reese and asked him what he
needed to do. Reese told Pierre-Antoine that he needed
to speak to someone else. That individual, later
identified as Johnson, spoke to Pierre-Antoine alone
in Reese’s office. Johnson told Pierre-Antoine that he
had to pay a $4,000 fee to get the violations on his
property removed. When Pierre-Antoine told Johnson
he could not do that, Johnson asked him how much he
had. Pierre-Antoine refused to pay anything. Pierre-
Antoine was ultimately able to resolve the issues within
two to three days for no cost. In November 2005, Pierre-
Antoine filed a complaint with the United States Postal
Inspection Service, which resulted in an investigation
of City of Chicago employees accepting bribes in return
for performing official acts related to their duties.
This evidence was further corroborated by the re-
cordings of conversations between Reese and the con-
No. 10-2562 7
fidential informant, Danny. In October 2006, Danny
called Reese looking to obtain a permit more quickly
than usual. Reese told Danny he knew someone who
could help Danny “get ‘em pushed through.” In Novem-
ber 2006, Reese told Danny that he might be able to talk
to an inspector “and maybe he will let you work you
know for a small fee.” Reese gave Johnson’s cell phone
number to Danny, and Johnson ultimately provided
Danny with a plumbing license letter of intent for $800.
Finally, the Government introduced a month-by-month
summary of the number and duration of calls between
Reese and his alleged coconspirators during 2005, 2006,
and part of 2007.
After deliberating, the jury found Reese guilty on all
three counts. In January 2010, the district court denied
Reese’s post-trial motions.
B. Verdict and Sentencing
In June 2010, the district court sentenced Reese to
51 months’ imprisonment on Count 1 and two 9-month
concurrent terms on Counts 2 and 3, to run consecutive
to Count 1. The district court held Reese accountable
for $112,500 in bribes, which increased Reese’s offense
level by eight. See United States Sentencing Guide-
lines Manual (U.S.S.G.) § 2B1.1(b)(1)(E), (F) (providing
for an 8-level increase where the amount of loss is more
than $70,000 but $120,000 or less).
8 No. 10-2562
II. DISCUSSION
On appeal, Reese argues the district court erred by:
(1) allowing testimony about the gift card list and ad-
mitting the 2005 gift card list; (2) barring evidence of re-
cordings between Reese and Romasanta during which
Reese declined Romasanta’s invitation to engage in
illegal conduct; and (3) holding Reese accountable
for $112,500 in bribes at sentencing, which resulted in
an eight-level increase in Reese’s offense level.
A. District Court Did Not Abuse Its Discretion by Admit-
ting Testimony About the Gift List, and Admission of
the Gift List as a Business Record Was Harmless Error
Reese argues the district court erred in admitting the
2005 gift list identifying Reese as a recipient of an
improper payment and testimony about the list because
(1) it was prejudicial Rule 404(b) evidence; (2) the 2005
gift list did not constitute a business record under
Rule 803(6); and (3) admission of the 2005 gift list
violated Reese’s Sixth Amendment right to confronta-
tion because the list’s author did not testify at trial.
1. Background Pertaining to the 2005 Gift List
Prior to trial, the district court held that the Govern-
ment could present certain other-acts evidence under
Federal Rule of Evidence 404(b). This evidence included
Romasanta’s testimony about Garneata’s practice of
giving gift cards to City officials during the holiday
No. 10-2562 9
season, Romasanta delivering a $200 gift card to Reese
in 2005, and Reese calling Romasanta in 2006 asking if
he would receive a gift card that year. The court found
that the evidence showed Reese’s intent, as well as the
interaction and ongoing relationship between Reese
and Romasanta. Moreover, the court stated, “I do not
think that it is anything but more conspiratorial
behavior regarding this process of working together as
a team to make sure that these individual inspectors
were paid off.”
The district court also, after hearing the testimony of
Stephan Lille and the voir dire of Romasanta, admitted
the 2005 gift list itself as a business record. Specifically,
Lille testified that he had worked for M3 Plumbing, one
of Garneata’s businesses, from October 2006 to Octo-
ber 2007. In the summer of 2007, Lille found the 2005
gift list handwritten on a notepad in the office Lille
shared with Garneata’s wife.
During voir dire, Romasanta testified that, beginning
in 2002, she and Garneata each would prepare lists of
names and discuss them. Romasanta believed she saw
Garneata’s list in 2003. Romasanta recognized the 2005
gift list as being written in Garneata’s handwriting and
recognized the majority of names on the list. Romasanta
did not know what Garneata did in terms of his record-
keeping practices. Romasanta also did not know
whether Garneata used the same list every year or made
a new one. In fact, Romasanta testified she did not know
whether Garneata actually wrote down his list or told
someone else who to make the cards out to.
10 No. 10-2562
The district court admitted the list, finding that
Romasanta identified the handwriting and the practice
of passing gratuities. The court found the relevance of
the evidence was not “overborne by prejudice” in light
of strong testimony regarding Romasanta’s contact with
Reese and Johnson and the passing of bribes. The court
did, however, redact the word “done” written next to
some of the names on the list.
2. Standard of Review Is for an Abuse of Discretion
This court reviews the district court’s decision to
admit other-acts evidence and the admission of a docu-
ment as a business record for an abuse of discretion.
See United States v. Price, 516 F.3d 597, 603 (7th Cir. 2008)
(Rule 404(b)); United States v. LeShore, 543 F.3d 935, 941
(7th Cir. 2008) (business record; also noting that the
district court’s interpretation of the rules of evidence is
reviewed de novo).
The district court’s evidentiary rulings are afforded
special deference and will be reversed “[o]nly where no
reasonable person could take the view adopted by the
trial court.” United States v. Vargas, 552 F.3d 550, 554 (7th
Cir. 2008).
3. District Court Did Not Abuse Its Discretion by Admit-
ting Testimony Pertaining to the Gift List
Federal Rule of Evidence 404(b) provides that evidence
of a “crime, wrong, or other act is not admissible to
No. 10-2562 11
prove a person’s character in order to show that on a
particular occasion the person acted in accordance with
the character.” Fed. R. Evid. 404(b) 1 . Other crimes
evidence is admissible, however, to prove “motive, op-
portunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id.; see also
United States v. Montani, 204 F.3d 761, 767 (7th Cir. 2000).
Whether other-acts evidence is admissible requires con-
sideration of whether:
(1) the evidence is directed toward establishing
a matter in issue other than the defendant’s pro-
pensity to commit the crime charged; (2) the
evidence shows that the other act is similar enough
and close enough in time to be relevant to the matter
in issue; (3) the evidence is sufficient to support a
jury finding that the defendant committed the
similar act; and (4) the probative value of the
evidence is not substantially outweighed by the
danger of unfair prejudice.
United States v. Baker, 655 F.3d 677, 681-82 (7th Cir. 2011).
Reese argues the evidence did not constitute admis-
sible conduct under Rule 404(b) because the conduct
was fundamentally different from the allegations of
bribery charged in the indictment. “[S]imilarity is
1
Effective December 1, 2011, and after oral argument in this
case, the amendments to the Federal Rules of Evidence went
in effect. The changes to Rule 404 (b), Rule 803(6), and Rule 106
are not integral to our analysis. Therefore, we use the amended
Rules herein.
12 No. 10-2562
relevant only insofar as the acts are sufficiently alike
to support an inference of criminal intent . . . . The prior
acts need not be duplicates of the one for which the defendant
is now being tried.” United States v. Lloyd, 71 F.3d 1256,
1265 (7th Cir. 1995) (alteration in original) (internal quota-
tion marks omitted).
Here, the testimony regarding the gift list was relevant
to show Reese’s intent, as well as the relationship
between Reese and Romasanta. The evidence that Reese
called Romasanta in 2006 was particularly probative of
Reese’s intent and involvement in the conspiracy. That
the gift card payments were made to “take care of the
inspectors” was sufficiently similar to the illegal conduct
charged in the indictment. See Vargas, 552 F.3d at 556
(explaining that other-acts evidence “was directed
toward establishing [the defendant’s] knowledge, and
was sufficiently similar to the charged offense to be
probative on that issue”).
Reese also argues the district court erred by finding
the probative value of the evidence outweighed the
prejudice. See Fed. R. Evid. 403 (relevant evidence may
be excluded “if its probative value is substantially out-
weighed by a danger of . . . unfair prejudice”). Reese
argues the evidence was highly prejudicial because pay-
ment in the form of holiday gifts was materially dif-
ferent from the illegal conduct charged in the indict-
ment and this evidence was the only instance in which
the Government could corroborate the testimony of a
convicted, cooperating witness that an improper pay-
ment of any kind was made to Reese. Reese also notes
No. 10-2562 13
that that prejudice was not mitigated by a limiting in-
struction.
Although the evidence was prejudicial, it was not
unfairly prejudicial. See, e.g., United States v. Andreas, 216
F.3d 645, 665 (7th Cir. 2000) (noting that “probative evi-
dence is always prejudicial, but the question remains
whether it is unfairly so”). “Evidence is unfairly
prejudicial only if it will induce the jury to decide the
case on an improper basis, commonly an emotional one,
rather than on the evidence presented.” United States v.
Wantuch, 525 F.3d 505, 518 (7th Cir. 2008); see, e.g., Andreas,
216 F.3d at 665 (finding no error in admitting evidence
where the evidence “was not so shocking, repulsive or
emotionally charged that its probative value was out-
weighed by its prejudicial effect”).
Here, the testimony regarding the gift list, particularly
Reese calling Romasanta in 2006 and asking if he was
going to receive a gift card that year, was probative of
Reese’s intent and not so prejudicial as to cause the jury
to decide the case on an improper basis. The resulting
prejudice of this evidence did not outweigh the proba-
tive value. Therefore, the district court did not abuse
its discretion by admitting the evidence. See Wantuch,
525 F.3d 505, 518 (7th Cir. 2008) (other crimes evidence
“outlined how the relationship of trust and cooperation”
developed between the coconspirators).
While the district court did not give the jury a limiting
instruction, the record does not reflect that defense
counsel requested one. See, e.g., United States v. Suggs,
14 No. 10-2562
374 F.3d 508, 517 (7th Cir. 2004) (a defendant who does
not request a limiting instruction forfeits any argument
that the court erred by failing to give a limiting instruc-
tion). Generally, this court reviews the failure to give
an unrequested limiting instruction for plain error, but
Reese does not argue plain error on appeal. See, e.g.,
United States v. Liefer, 778 F.2d 1236, 1244 (7th Cir.
1985). Nonetheless, even without the limiting instruc-
tion, the evidence was not unduly or unfairly prejudi-
cial. See, e.g., United States v. Wilson, 31 F.3d 510, 515 (7th
Cir. 1994) (evidence not unduly prejudicial, even in
absence of a limiting instruction, “because of its strong
similarity and close temporal proximity to the charged
crime”).
4. Admission of the 2005 Gift List as a Business Record
Was Harmless Error
Reese next argues that even if testimony about the
gift list was admissible under Rule 404(b), the gift list
itself was inadmissible because (1) the 2005 gift list
was not a business record; (2) no qualified witness
testified to the accuracy and authorship of the 2005 gift
list; (3) the 2005 gift list was more prejudicial than proba-
tive; and (4) the admission of the list violated Reese’s
Sixth Amendment right to confrontation because the
author of the list was not called to testify. We agree that
the district court erred by admitting the 2005 gift list as
a business record but find that error was harmless. See,
e.g., United States v. Thornton, 642 F.3d 599, 606 (7th
Cir. 2011).
No. 10-2562 15
“A party establishes a foundation for admission of
business records when it demonstrates through the testi-
mony of a qualified witness that the records were kept
in the course of a regularly conducted business activity,
and that it was the regular practice of that business to
make such records.” United States v. Given, 164 F.3d 389,
394 (7th Cir. 1999); see also Fed. R. Evid. 803(6) (business
record exception to the hearsay rule). A qualified wit-
ness need not be the author of the document but must
have personal knowledge of the procedure used to
create and maintain the document. See id.; see also United
States v. Muhammad, 928 F.2d 1461, 1469 (7th Cir. 1991).
Although Romasanta testified that she knew that
Garneata had a regular practice of giving holiday gift
cards, she lacked knowledge of the practice of creating
and maintaining the list. Romasanta testified that she
was not sure whether Garneata actually wrote down a
list, whether he made a list every year or used the
same one, or what he did in terms of recordkeeping.
Romasanta’s lack of personal knowledge concerning
the recordkeeping meant that the list failed to satisfy
what is now subsection (D) in Rule 803(6). The evidence
also failed to satisfy subsections (C) (“making the record
was a regular practice of that [regularly conducted]
activity”) and (E) (no indication of lack of trustworth-
iness). There was no adequate showing that it was a
regular practice to make this sort of record, to maintain
it, or to rely upon it. “The idea behind Rule 803(6) is
that when a record is kept with sufficient regularity, the
existence of an entry (or the absence of one) is good
16 No. 10-2562
evidence that the thing in question took place (or did
not take place). Business records are reliable to the
extent they are compiled consistently and conscien-
tiously.” United States v. Ramsey, 785 F.2d 184, 192 (7th
Cir. 1986) (district court erred by admitting notes on
businessman’s calendar as business records, though
error was harmless). The list here was found by accident
in an abandoned notepad, not in regular files that were
maintained, and Romasanta could not testify that it
was the regular practice to make these lists, let alone
maintain them and rely upon them. Therefore, the
district court abused its discretion by admitting the
2005 gift list as a business record. See, e.g., Collins v.
Kibort, 143 F.3d 331, 338 (7th Cir. 1998) (finding the
witness was not qualified to testify about medical bills
where he did not know anything about the hospital’s
billing practices).
Nonetheless, the error in admitting the 2005 gift list as
a business record was harmless error. “Errors in the
admission of evidence will be deemed to be harmless
unless they had a substantial and injurious effect or
influence on the jury’s verdict.” Datamatic Servs., Inc. v.
United States, 909 F.2d 1029, 1033 (7th Cir. 1990) (internal
quotations omitted).
Reese argues the error was not harmless because the
list was the only documentary evidence supporting the
existence of any improper payment to Reese. Reese
further argues that the prejudice from the admission
of the list was not mitigated by a limiting instruction.
No. 10-2562 17
However, Romasanta testified about Garneata’s prac-
tice of giving holiday gift cards, testimony this court
has found was admissible and not unduly prejudicial.
The actual gift list itself was merely cumulative of
that testimony.
Moreover, the evidence presented at trial overwhelm-
ingly demonstrated Reese’s participation in a conspiracy
with Johnson and Oros. The testimony of Johnson—a
cooperating witness—and Oros—who testified unwillingly
and under a grant of immunity—was further cor-
roborated by the telephone conversations between Reese
and Danny and between Reese and Johnson, as well as
the testimony of Pierre-Antoine, who testified about
his experience with Reese and Johnson. In light of the
evidence presented at trial, the admission of the actual
2005 gift list was harmless beyond a reasonable doubt.
See, e.g., Price, 516 F.3d at 605 (finding that the district
court’s error in admitting the document as a business
record was harmless where the jury “was presented
with substantially similar evidence”); United States v.
Franco, 874 F.2d 1136, 1141 n. 1 (7th Cir. 1989) (finding
that even if the court erred in admitting the records, the
error was harmless because of the substantial evidence
of the defendant’s role in the conspiracy).
Because we have concluded that the error was
harmless, we need not determine whether admission of
the 2005 gift list violated Reese’s right to confront the
author of the list. Coy v. Iowa, 487 U.S. 1012, 1021-22, 101
L.Ed.2d 857, 867, 108 S. Ct. 2798, 2803 (1988) (Confronta-
tion Clause violations are subject to harmless-error
review); Thornton, 642 F.3d at 606.
18 No. 10-2562
B. The District Court Did Not Abuse Its Discretion by
Excluding Recorded Conversations Between Reese
and Romasanta
Reese also challenges on appeal the district court’s
exclusion of recorded conversations between Reese and
Romasanta. The recordings were made in May,
June, July, and December 2007, after Romasanta began co-
operating with authorities and after the investigation
became known. During the conversations, Reese de-
clined Romasanta’s invitations to engage in illegal con-
duct. Specifically, Reese either referred Romasanta to
the appropriate supervisor or directed Romasanta
to follow proper procedures.
On appeal, Reese argues that the district court should
have admitted the recordings on the basis that (1) the
recordings were related recordings under Rule 106;
and (2) the refusal to allow Reese to cross-examine
Romasanta regarding the recorded conversations
violated Reese’s Confrontation Clause right and right to
a fair trial.
1. Standard of Review Is for an Abuse of Discretion
The district court’s rulings on evidentiary issues are
reviewed for an abuse of discretion. United States v.
McGee, 408 F.3d 966, 981 (7th Cir. 2005). “A court’s limita-
tion on a defendant’s cross-examination is reviewed for
an abuse of discretion, but whether the limitation
offends the confrontation clause is reviewed de novo.”
United States v. Mokol, 646 F.3d 479, 485 n. 4 (7th Cir. 2011)
No. 10-2562 19
(also noting that “[e]xposing witness bias directly impli-
cates the Sixth Amendment, and is reviewed de novo”).
2. District Court Did Not Err by Excluding the Recordings
Reese’s own statements in the recording were hearsay
when offered by Reese for the truth of the matter as-
serted. See United States v. Davenport, 929 F.2d 1169, 1175
(7th Cir. 1991) (noting that the defendants’ statements, to
the extent they were exculpatory, would not have been
admissible at their trial because the statements were
hearsay). Because we conclude that the district court
did not err by concluding that Reese’s statements were
inadmissible, we do not need to address Reese’s argu-
ment that Romasanta’s statements were not admissible
for their truth, but rather to give context to his statements.
On appeal, Reese argues the 2007 recordings between
Reese and Romasanta nonetheless should have been
admitted as related recordings under Federal Rule of
Evidence 106. Reese did not argue this ground before
the district court, although the Government raised
Rule 106 in its motion to exclude the recordings. How-
ever, even if Reese has forfeited this issue by failing to
raise it before the district court, the district court did
not commit error, let alone plain error, by excluding
the recordings.
Rule 106 provides that “[i]f a party introduces all or
part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any
other part—or any other writing or recorded statement—
20 No. 10-2562
that in fairness ought to be considered at the same
time.” Fed. R. Evid. 106. The purpose of the rule is “to
prevent a party from misleading the jury by allowing
into the record relevant portions of the excluded
testimony which clarify or explain the part already re-
ceived.” United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir.
1996); see also United States v. LeFevour, 798 F.2d 977, 981
(7th Cir. 1986) (otherwise inadmissible evidence may
be admissible under Rule 106 to correct a misleading
impression or else the misleading evidence must be
excluded). Rule 106 also applies to oral, nonrecorded
statements. Price, 516 F.3d at 604.
To admit evidence under Rule 106, a court must find
that the evidence is relevant to the issues of the case.
United States v. Velasco, 953 F.2d 1467, 1474-75 (7th Cir.
1992). If the evidence is relevant, the court considers
the following factors: whether (1) the proposed evidence
explains the admitted evidence; (2) the proposed evidence
places the admitted evidence in context; (3) admission
of the proposed evidence will avoid misleading the trier
of fact; and (4) admitting the proposed evidence will
insure a fair and impartial understanding of all of the
evidence. Id. at 1475; see also United States v. Sweiss, 814
F.2d 1208, 1211-12 (7th Cir. 1987).
Reese argues the recordings between Reese and
Romasanta are relevant to whether Reese conspired to
commit bribery because the recordings contain Reese’s
responses to Romasanta’s request that he change
permits and orders on her clients’ properties. Reese also
argues the recordings are relevant because they serve
No. 10-2562 21
to rebut the trust relationship the Government at-
tempted to prove between Reese and his coconspirators,
provide context to the recordings and phone records
used by the Government, and explain the recordings
that already had been introduced.
Even if the 2007 recordings between Romasanta
and Reese were relevant to the issues in the case, those
recordings were entirely separate and distinct from
the admitted recorded conversations between Reese and
Danny and between Reese and Johnson. “A statement
admitted on ‘completeness’ grounds must be connected
contextually to the previously introduced evidence, such
that the exclusion of that statement is likely to create
an incomplete, misleading, or distorted picture of the
evidence.” Price, 516 F.3d at 605. The 2007 recordings
between Reese and Romasanta were neither connected
contextually to any previously introduced statement
or recording nor was admission of those recordings
necessary to complete Reese’s earlier statements to
other individuals. Therefore, the district court did
not abuse its discretion by refusing to admit the 2007 re-
cordings between Romasanta and Reese. See, e.g.,
United States v. Lewis, 641 F.3d 773, 785 (7th Cir. 2011)
(finding that the testimony the defendant wanted
admitted was “merely explanatory of his theory of the
case” and not explanatory of or relevant to the admitted
testimony).
22 No. 10-2562
3. Exclusion of the Recordings Did Not Violate the Confron-
tation Clause
Reese next argues the district court’s decision to
exclude the recordings and preclude defense counsel
from cross-examining Romasanta about those re-
cordings violated his confrontation rights and right to a
fair trial. Reese argues the recordings would have
cast doubt on Romasanta’s veracity when she testified
that Reese had a working relationship with Romasanta
and Johnson in accepting bribes.
Reese did not raise this argument when the district
court considered whether to admit the recordings, al-
though he did make this argument in his post-trial motion.
Even if Reese forfeited the issue, Reese cannot show
the district court erred, let alone committed plain error,
by refusing to admit the recordings. See, e.g., United
States v. Wing, 104 F.3d 986, 988 (7th Cir. 1997) (issue
was forfeited where the defendant could have made a
contemporaneous objection but instead raised the issue
for the first time in his post-trial motion); Thornton, 642
F.3d at 605 (forfeited issues are reviewed for plain error).
The Confrontation Clause of the Sixth Amendment
protects the defendant’s right to face those who testify
against him and to conduct cross-examination. See
McGee, 408 F.3d at 974. However, “[t]he right to cross-
examination is not unlimited; trial courts have wide
latitude ‘to impose reasonable limits on such cross-ex-
amination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
No. 10-2562 23
marginally relevant.’ ” Id. at 975, (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 679, 89 L.Ed.2d 674, 683, 106
S. Ct. 1431, 1435 (1986)).
The district court did not err by limiting cross-exam-
ination here. The court imposed reasonable limits on
Reese’s cross-examination of Romasanta. Reese es-
sentially sought to elicit evidence of his failure to engage
in unlawful conduct during his cross-examination of
Romasanta. Evidence that a defendant acted lawfully
on other occasions is generally inadmissible to prove
he acted lawfully on the occasion alleged in the indict-
ment. See, e.g., United States v. Heidecke, 900 F.2d 1155, 1162
(7th Cir. 1990); United States v. Burke, 781 F.2d 1234, 1243
(7th Cir. 1985). The district court’s requirement that
Reese cross-examine Romasanta within the confines of
the rules of evidence was, therefore, not improper. See
Lewis, 641 F.3d at 785 (finding no violation of the Sixth
Amendment where the defendant was given the opportu-
nity to confront and cross-examine the agent but was
“required to do so within the rules of evidence”). More-
over, the district court did not limit defense counsel’s
cross-examination regarding Romasanta’s motives or
bias, both of which are core Confrontation Clause con-
cerns. Mokol, 646 F.3d at 485 (noting that a district
court may restrict cross-examination on issues such as
bias “so long as the defense still has an adequate oppor-
tunity to explore the witness’s motives and biases”).
Therefore, the district court did not err in preventing
defense counsel from cross-examining Romasanta
about the 2007 recordings.
24 No. 10-2562
C. District Court Did Not Commit Clear Error by
Holding Reese Responsible for $112,500 in Bribes
Reese last argues the district court committed clear
error by holding him responsible for more than $117,000
in bribes. However, although the presentence investiga-
tion report calculated the loss amount as $117,500, the
district court reduced the loss amount to $112,500
after considering the reliability of the supporting evi-
dence. Specifically, the court found that of the $10,000 the
Government believed should be attributed to Reese
for computer mainframe changes Reese made for Oros
($1,000 for each change), the court was “only going to
attribute $5,000 to the mainframe changes, based upon
the five properties that have been identified [by Oros]
as changed.” Sent. Tr. at 58.
In any event, Reese argues the district court erred by
(1) including bribes that were unknown and unforeseeable
to Reese, including the $12,000 bribe Johnson received
from Oros, the $4,000 bribe Garneata paid to Johnson,
and the $1,500 bribe Romasanta paid to Reese from devel-
oper Daniel Fema; (2) including the unsuccessful
attempts to solicit bribes in the loss calculation; and
(3) relying, in part, on the $99,497 in cash deposits by
Reese between January 2002 and December 2008 and
assuming the amount was the proceeds of illicit bribes.
1. Standard of Review Is for Clear Error
We review the district court’s calculation for clear
error. United States v. Alaka, 614 F.3d 368, 371 (7th Cir.
2010). A loss calculation is clearly erroneous if “we are
No. 10-2562 25
left with the definite and firm conviction that a mistake
has been committed.” United States v. Carani, 492 F.3d
867, 875 (7th Cir. 2007) (internal quotation marks
omitted). “Guideline interpretations are questions of
law, however, which we review de novo.” United States
v. Gee, 226 F.3d 885, 899 (7th Cir. 2000).
2. District Court Did Not Err by Holding Reese Liable
for Bribes Received by Reese’s Coconspirators
The district court held Reese responsible not only for
the bribes he personally received but also for the bribes
paid to Johnson by Oros, Garneata, and Danny. A con-
spirator is liable for “all reasonably foreseeable acts
and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B); see
also United States v. Bustamante, 493 F.3d 879, 887-88
(7th Cir. 2007). A defendant does not have to “personally
engage[ ] in or benefit from every transaction that
resulted in” the loss. Alaka, 614 F.3d at 371.
The district court’s finding that these payments were
reasonably foreseeable and in furtherance of the con-
spiracy was not clearly erroneous. The evidence
presented at trial showed an ongoing relationship
between Reese and Johnson by which the parties would
each provide services to individuals outside normal
channels. Reese and Johnson mutually benefitted
because of each other’s ability to manipulate the system
and referred individuals to each other for that purpose.
The payments made by Oros to Johnson were rea-
sonably foreseeable to Reese and were in furtherance of
26 No. 10-2562
the conspiracy. Reese referred Oros to Johnson when
Reese could no longer provide the system changes for
Oros. The $12,000 payment that Reese specifically chal-
lenges on appeal is further supported by the conversa-
tion between Reese and Johnson in January 2007 when
Reese offered to contact Oros about picking up some
plans Johnson had stamped for Oros.
The other payments Reese specifically challenges on
appeal also are supported by the evidence. The $4,000
payment by Garneata to Johnson was also foreseeable
because, according to Johnson’s testimony, Reese referred
Garneata to Johnson to provide the necessary services.
Additionally, Reese’s relationship with Garneata was
corroborated by the testimony of Romasanta.
Reese also specifically challenges the $1,500 payment
Romasanta gave to Reese on behalf of Daniel Fema,
claiming the payment was uncorroborated. (Reese claims
on appeal this payment was $3,000, but the record
reflects the payment was $1,500). Romasanta’s testi-
mony was corroborated by the phone contacts, showing
a large number of phone contacts between Reese and
Romasanta, and the testimony of the other individu-
als—Johnson, Oros, and Pierre-Antoine—supporting
her testimony about how the conspiracy worked.
3. District Court Did Not Err by Holding Reese Responsible
for Solicitations of Bribes
Reese also challenges the district court’s inclusion of
the solicitation of a bribe from Pierre-Antoine ($4,000)
and from Jackson ($10,000) in the calculation of the loss
No. 10-2562 27
amount. (Reese challenges the $10,000 solicitation as a
“payment,” but it was clearly a solicitation). At sen-
tencing, however, the solicitation of a bribe is treated the
same as a completed bribe. See U.S.S.G. § 2C1.1, cmt.
background (“[S]olicitations and attempts are treated as
equivalent to the underlying offense); United States v.
Muhammad, 120 F.3d 688, 701 (7th Cir. 1997) (using the
ascertainable benefit of an unsuccessful bribe to enhance
a sentence); United States v. Quinn, 359 F.3d 666, 680
(4th Cir. 2004) (“For purposes of sentencing, there is no
distinction between a solicitation of a bribe and a com-
pleted bribe”).
The evidence presented at trial indicated that Reese
solicited the $10,000 bribe from Jackson. Moreover, John-
son’s solicitation of a bribe from Pierre-Antoine was
foreseeable where Reese brought Johnson into Reese’s
office to talk to Pierre-Antoine. Therefore, the district
court properly included these solicitations in the calcula-
tion of the loss amount.
4. District Court Did Not Err by Relying on Cash
Deposits as Circumstantial Evidence
Finally, Reese claims that the district court improp-
erly relied upon the $99,497 in cash deposits between
January 2002 and December 2008. Reese argues that he
explained these deposits in his sentencing memoran-
dum, noting that he operated a beauty salon and re-
ceived rent in cash for properties he leased to others.
The district court did not include in the loss calcula-
tion the $99,497 in cash deposits presented as evidence
28 No. 10-2562
by the Government. The court merely pointed to
those cash deposits as circumstantial evidence in
support of the conspiracy between the parties. The
court did not err by doing so.
In sum, the district court did not err by holding
Reese responsible for a loss amount of $112,500, which
raised Reese’s offense level by eight levels.
A FFIRMED.
1-13-12