In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 16‐2253 UNITED STATES OF AMERICA, Plaintiff‐Appellee,
v.
ENKHCHIMEG ULZIIBAYAR “ENI” EDWARDS, Defendant‐Appellant. ____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR 421‐1 — Richard A. Posner, Circuit Judge, sitting by designation. ____________________
ARGUED MAY 17, 2017 — DECIDED AUGUST 24, 2017 ____________________
Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Defendant‐Appellant Enkhchimeg Ulziibayar Edwards goes by the nickname Eni Edwards. She was charged with two counts of witness tam‐ pering in violation of 18 U.S.C. § 1512(b)(3) (Counts I and II) and two counts of making false statements on an official ques‐ tionnaire for federal employment in violation of 18 U.S.C. 2 No. 16‐2253
§ 1001(a)(2) (Counts III and IV). A jury convicted Edwards on all four counts. The trial judge, who was skeptical about both the strength of the government’s evidence and whether the case merited criminal prosecution, imposed a below‐guide‐ line sentence of two years of probation and a $2,000 fine. Edwards has appealed her convictions, raising three is‐ sues. She argues that the witness tampering statute, § 1512(b)(3), is void for vagueness. She also argues that the evidence was insufficient to support any of the four counts of conviction. We reject both of these arguments and affirm Ed‐ wards’s false statement convictions, Counts III and IV. We address first, though, Edwards’s strongest argument, which is that the jury instructions for the witness tampering charges were faulty and that the error denied her a fair trial on Counts I and II. On that issue, we agree with Edwards. The trial judge refused both sides’ request to instruct the jury on one essential element of the charges. As this case was framed under § 1512(b)(3), Edwards could be convicted only if she “corruptly” attempted to persuade another person to hinder, delay, or prevent communication of information to federal criminal investigators. The instructions given at trial failed to include the corruption element. They could have allowed the jury to convict Edwards of engaging in conduct that, under Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), did not constitute corrupt persuasion and therefore did not amount to criminal witness tampering. We cannot say this er‐ ror was harmless, so we vacate Edwards’s convictions on Counts I and II and remand for a possible new trial on those witness tampering counts, if the government opts to pursue them. We also vacate Edwards’s sentence on all counts and remand for resentencing. No. 16‐2253 3
I. Factual Background and Procedural History To explain how this unusual prosecution came about, we first sketch Edwards’s personal history and her history of gov‐ ernment employment. Edwards is a naturalized United States citizen who emigrated from Mongolia in 1996. She applied in 2008 to become an officer with United States Customs and Border Protection (CBP). She was hired in 2009. Edwards went through a federal background investigation in 2009 and a reinvestigation in 2014. To facilitate these investigations, Edwards was required to submit Standard Form 86, Questionnaire for National Secu‐ rity Positions (SF‐86), and supplemental forms. The 2014 SF‐ 86 required her to answer truthfully, among many other things, whether she “EVER provided financial support for any foreign national.” Edwards answered no. A supplemental questionnaire asked Edwards in 2014 whether she “ever helped anyone enter or stay in the U.S. illegally.” Again Ed‐ wards answered no. The government charged, and the jury found, that both answers were false. The path to those find‐ ings began more than fifteen years ago. A. Tsasa Erdenekhuu and her Marriage to Michael Rosel Back in 2001, years before Eni Edwards applied to work for CBP, her Mongolian cousin Tsansanchimeg Erdenekhuu, known as “Tsasa” and sometimes as “Tasha,” entered the United States on a student visa. Tsasa violated the terms of her visa and was eventually arrested by immigration author‐ ities and placed in removal proceedings. Edwards posted a cash bond to secure Tsasa’s release, using funds from Ed‐ wards’s parents. Tsasa was released to Edwards’s custody. 4 No. 16‐2253
In early 2003, Edwards introduced Tsasa to her friend and co‐worker, Michael Rosel. According to Rosel’s later testi‐ mony at Edwards’s 2016 trial, he saw Tsasa casually a couple of times. Edwards then surprised him by asking him to marry Tsasa so she could remain in the United States. Rosel testified that when Edwards floated the idea of a marriage, he had no romantic interest in the much younger Tsasa, and she had ex‐ pressed no romantic interest in him. He also testified that he told Edwards he was concerned about the potential illegality of the arrangement, but that Edwards assured him he had nothing to worry about. According to Rosel’s testimony, Edwards badgered him over several months about marrying Tsasa. Eventually Rosel gave in. He and Tsasa were married in July 2003 in Las Vegas, Nevada. Shortly after the wedding, the couple applied for a “green card” for Tsasa to make her a lawful permanent resi‐ dent of the United States as the spouse of a U.S. citizen. The marriage did not last long, though. Rosel abandoned the green card petition and the couple filed for divorce. In May 2004 the marriage was dissolved and Tsasa and Rosel went their separate ways. B. The Visa Fraud Investigation and the Focus on Edwards We now turn to a completely different episode, but the one that first led to the investigation of Edwards and ultimately to her criminal trial. In 2008, a Chicago‐based organization called the American Mongolian Association (AMA) invited a group of Mongolian throat singers to perform at a cultural festival. Defendant Edwards had been volunteering with the organization, and many of the throat singers listed her contact information on their visa applications. Edwards communi‐ cated with the consular section at the United States embassy No. 16‐2253 5
in Ulaanbaatar, Mongolia. She identified herself as a vice president of the AMA and advocated for the applicants. Ulti‐ mately, the embassy official responsible for reviewing the pe‐ titions denied most of them. Based in part on his past experi‐ ence with the AMA, the official believed the organization was attempting to facilitate visa fraud. The embassy referred the matter to the Diplomatic Secu‐ rity Service, an investigative branch of the U.S. Department of State. In July 2012, Special Agent Douglas Miller got in touch with a contact at the Chicago office of CBP. That person intro‐ duced Miller to Edwards, who by that time was employed as a CBP officer at O’Hare International Airport. Unaware of Ed‐ wards’s past involvement with the AMA, Miller asked her whether she was willing to help with the visa fraud investiga‐ tion. Edwards agreed to help with English–Mongolian trans‐ lation. Some weeks later, just before a briefing with Edwards about the investigation, Special Agent Miller came across a file identifying Edwards as an AMA vice president. He was stunned. He later testified that “at no point in the investiga‐ tion” had Edwards informed the agency about her involve‐ ment with the AMA. Edwards did not attend the briefing. The investigation moved forward, but the focus then shifted to Ed‐ wards herself. Investigators acquired Edwards’s bank records and dis‐ covered that she maintained a joint account with her cousin Tsasa. By reviewing Tsasa’s immigration file, investigators learned of the 2003 marriage between Tsasa and Rosel, which Special Agent Miller described as having “significant indica‐ tors … for marriage fraud.” Miller located Rosel and inter‐ viewed him. In what later became the focus of the witness 6 No. 16‐2253
tampering charges in Counts I and II, Miller asked Rosel to call Edwards on a recorded line and to ask her questions that the investigators had prepared. Rosel reluctantly agreed. He made two such calls on January 8 and 9, 2013. C. The January 2013 Calls During the first call on January 8, Rosel told Edwards that State Department agents had contacted him and asked about Tsasa. Edwards did not immediately advise Rosel to cooper‐ ate fully. She advised Rosel to tell the agents that he and Tsasa “met at a common friend’s party, we dated, we got married, it didn’t work out … we got divorced, and I haven’t … talked to her or met with her at all since then.” Edwards repeated this advice many times in the 23‐minute call. She added: “It’s not like we’re lying, you know, we didn’t do anything … out of [the] ordinary. … Tell them … if I’m willing to answer I’ll an‐ swer, if I’m not willing to answer I’m not gonna answer, I wanna talk to my lawyer.” Edwards complained that she had become the target of the State Department investigation, a fact she attributed to her law‐enforcement position at CBP and her Mongolian origins. During the follow‐up call on January 9, Rosel told Ed‐ wards that he had spoken with Special Agent Miller and that the investigators “seem to know an awful lot of information.” Edwards repeated her advice from the previous call: “Tell them, hey, we legally got married, we are both adults, we had … mutual consent … we got divorced … . She didn’t get noth‐ ing out of me, I didn’t get nothing out of her. … We had a normal … relationship. Ups and downs. That’s it.” Rosel pressed Edwards, saying that “the truth was we got married so she wouldn’t get deported and I got the sex out of it, I just don’t wanna try to come up with a lie.” Edwards did not take No. 16‐2253 7
the bait to confirm that the marriage was fraudulent or that any story to the contrary would be a lie. She replied: “In any relationship, when somebody’s married or girlfriend/boy‐ friend, they have sex, okay, that’s a normal, legal thing. … If you want them to go away, you need to keep it simple.” Rosel asked Edwards whether he should avoid mention‐ ing her name to the investigators. Edwards said no: “No, it’s fine, tell them, hey, Eni’s my friend from my old job. … You don’t have to lie about that because we worked together. … And [tell them] I think she brought [Tsasa] to one of our par‐ ties … and that’s how we met.” As the call ended, Edwards cautioned: “Don’t let them intimidate you or try to put some stuff into your mouth. … Simple facts are simple facts, that’s it, and the less you talk to them and the less time you spend with them [the] better for you, Mike.” At trial, Rosel testified that Edwards did not accurately de‐ scribe the nature of his relationship with Tsasa during these recorded telephone conversations. He testified that if he had followed her advice and told investigators the relationship was normal, that would have been a lie. Rosel testified that Edwards was aware the marriage was a sham—that in fact she had arranged the marriage. However, he also admitted that he saw Tsasa on a few social occasions before their wedding, that the two had one romantic encounter, and that at the time of the marriage he hoped their relationship would evolve into something meaningful. Edwards testified in her own defense. She cast Rosel’s marriage to Tsasa in a very different light. Edwards said that she introduced Tsasa to Rosel, believing the connection would help Tsasa “lead a normal life here in this country.” She hoped the relationship would evolve. She said that Rosel and Tsasa 8 No. 16‐2253
“went out a couple of times” before their wedding and that the two had been intimate. She believed the couple had a sex‐ ual relationship, though Rosel had testified that they did not and that this was one of the reasons he and Tsasa agreed to end the marriage. As explained below, one essential element of the witness tampering charges was that Edwards must have acted “cor‐ ruptly” in trying to persuade Rosel how to answer questions from investigators. Edwards testified that she did not intend through the telephone conversations to pressure Rosel to change his story or to lie. Edwards said she felt she was “hav‐ ing [a] conversation with a friend, and … was trying to help him out.” Under cross‐examination, however, Edwards ad‐ mitted that she asked Rosel to marry Tsasa so she could stay in the country legally.1 D. Procedural History The government charged Edwards in July 2014 with two counts of witness tampering in violation of 18 U.S.C. § 1512(b)(3) stemming from her statements to Rosel during their January 2013 phone conversations. The government later added two counts of false statements in violation of 18
1 One can easily overstate the significance of this concession. We agree
with the trial judge’s explanation that a good‐faith marriage motivated only in part by immigration benefits is not illegal: “Only ‘a marriage en‐ tered into solely to obtain immigration benefits not otherwise available without the marriage has as its purpose the evasion of immigration laws.’” Dkt. No. 137 at 8, quoting Eid v. Thompson, 740 F.3d 118, 124 (3d Cir. 2014) (emphasis added in trial court order), and 8 U.S.C. § 1154(c) (an official finding that marriage was “entered into for the purpose of evading the immigration laws” results in lifetime bar on lawful entry into the United States). No. 16‐2253 9
U.S.C. § 1001(a)(2). Those latter counts were based on Ed‐ wards’s 2014 SF‐86 and supplemental questionnaire answers that she had never provided financial support for a foreign national and never helped anyone enter or stay illegally in the United States. The government viewed these statements as lies based on evidence that Edwards had supported Tsasa (a non‐resident alien) financially and arranged Tsasa’s marriage with Rosel. Edwards moved to dismiss the witness tampering counts on the theory that the statute, § 1512(b)(3), is void for vague‐ ness, both facially and as applied to Edwards. The district court denied that motion, and the case proceeded to trial. In February 2016, a jury convicted Edwards on all four counts. The court sentenced Edwards to serve two years of probation and to pay a $2,000 fine. Edwards appeals her convictions. II. Jury Instructions for Witness Tampering In her strongest argument on appeal, Edwards challenges the jury instructions for the witness tampering charges in Counts I and II. She argues that the instructions did not in‐ clude or define the term “corruptly,” which is an element of the charges. “We review de novo whether jury instructions ac‐ curately summarize the law, but give the district court sub‐ stantial discretion to formulate the instructions provided that the instructions represent a complete and correct statement of the law.” United States v. Daniel, 749 F.3d 608, 613 (7th Cir. 2014), quoting United States v. Dickerson, 705 F.3d 683, 688 (7th Cir. 2013). As we noted recently, 18 U.S.C. § 1512 “defies easy sum‐ mary.” United States v. Snyder, 865 F.3d 490, — (7th Cir. 2017). The statute makes it a crime to obstruct a federal investigation 10 No. 16‐2253
or prosecution in a wide variety of ways, ranging from cor‐ ruptly trying to persuade a witness not to tell the truth up to and including murder. Our focus here is § 1512(b)(3), which imposes criminal penalties on a person who “knowingly … corruptly per‐ suades another person, or attempts to do so … with intent to … hinder, delay, or prevent the communication to a law en‐ forcement officer … of information relating to the commission or possible commission of a Federal offense.” The Supreme Court has explained that only persons “conscious of wrong‐ doing can be said to ‘knowingly … corruptly persuad[e].’” Ar‐ thur Andersen LLP v. United States, 544 U.S. 696, 706 (2005) (re‐ viewing conviction under 18 U.S.C. § 1512(b)(2)(A)–(B)). Sim‐ ilarly, the pattern criminal jury instructions developed for use in this circuit define “corruptly” as acting “with the purpose of wrongfully impeding the due administration of justice.” See Committee on Federal Criminal Jury Instructions of the Seventh Circuit, Pattern Criminal Jury Instructions of the Sev‐ enth Circuit, at 453 (2012), http://www.ca7.uscourts.gov/pat‐ tern‐jury‐instructions/7th_criminal_jury_instr.pdf. Pattern instructions are not necessarily authoritative. The instructions and their accompanying commentary are “ap‐ proved in principle” by the Seventh Circuit Judicial Council, meaning that the Council has authorized their publication as an aid to judges and lawyers. But the Council has not ap‐ proved (and, as an administrative body, could not approve) their use in any particular case. See id. at i; United States v. Hill, 252 F.3d 919, 922 (7th Cir. 2001) (pattern instructions offer “model instructions for occasions when they are appropriate but do[] not identify those occasions; the need for an instruc‐ tion must be determined independently”); United States v. No. 16‐2253 11
Doherty, 969 F.2d 425, 429 (7th Cir. 1992) (pattern instructions, “while carrying some weight, were never intended to have the force of law in this Circuit”). Pattern instructions are not intended to be used mechani‐ cally and uncritically. Trial judges routinely decide to use dif‐ ferent language tailored more closely to the particular case be‐ fore them. Yet pattern instructions reflect the collective expe‐ rience of the judges and lawyers who crafted them and can serve as a helpful starting point to ensure that essential ele‐ ments of crimes and defenses are not overlooked. In this case, the government proposed jury instructions that tracked the Seventh Circuit pattern instructions for wit‐ ness tampering.2 The trial judge rejected the proposed instruc‐ tions during a pretrial conference because, in the judge’s view,
2 The pattern instruction states:
[The indictment charges the defendant[s] with; Count[s] __ of the indictment charge[s] the defendant[s] with] obstruction of justice. In order for you to find [a; the] defendant guilty of this charge, the government must prove each of the [four] following elements beyond a rea‐ sonable doubt: 1. The defendant [[attempted to] [use[d] intimidation, threaten[ed] or corruptly persuade[d] another person]] or [engaged in misleading conduct toward another person]; and 2. The defendant acted knowingly; and 3. The defendant acted with the intent to hinder, de‐ lay or prevent the communication of information to [a law enforcement officer of the United States or judge of the United States]; and 12 No. 16‐2253
they contained too much “legal jargon.” With respect to the term “corruptly,” the judge told the lawyers: “no one knows what ‘corruptly’ means. Then there’s a definition, a person acts corruptly if he or she acts with the purpose of wrongfully impeding the due administration of justice. Well, that doesn’t help. You don’t need ‘corruptly.” Defense counsel protested that “by eliminating some of this technical language which has been approved by the Seventh Circuit … it will weaken the burden that the government must meet in a criminal case.” The judge disagreed. In his view, omission of technical terms he deemed superfluous could not harm the defense
4. Such information related to the commission or pos‐ sible commission of a [[federal offense] or [violation of conditions of probation], [supervised release], or [release pending judicial proceedings]]. If you find from your consideration of all the evi‐ dence that the government has proved each of these ele‐ ments beyond a reasonable doubt [as to the charge you are considering], then you should find the defendant guilty [of that charge]. If, on the other hand, you find from your considera‐ tion of all the evidence that the government has failed to prove any one of these elements beyond a reasonable doubt [as to the charge you are considering], then you should find the defendant not guilty [of that charge]. Pattern Criminal Jury Instructions of the Seventh Circuit at 447. The com‐ mittee then advises: “The court should define ‘corruptly’ and ‘misleading’ when these terms are used in these instructions, using the pattern instruc‐ tions set forth below.” The pattern instructions then offer this definition: “A person acts ‘corruptly’ if he or she acts with the purpose of wrongfully impeding the due administration of justice.” Id. at 453.
No. 16‐2253 13
“unless you’re counting on obscurantism in leading [the jury] to acquit.” In the final instructions to the jury, the judge did not in‐ clude the term “corruptly” or any comparable language. He gave the following instruction for the elements of the witness tampering offenses: Remember that you can find the defendant guilty only if the government proves the follow‐ ing four things beyond a reasonable doubt: 1. The defendant attempted to persuade an‐ other person to interfere with the government’s investigation or prosecution of illegal activity; 2. She did this deliberately, knowing what she was doing rather than acting in ignorance or by mistake; 3. She intended to interfere with, delay, or pre‐ vent another person from giving information to a federal law enforcement officer; 4. That information related to a federal offense that someone had committed, may have com‐ mitted, or was planning to commit. To be sure, the final instructions required the jury to find that Edwards intentionally sought, through her conversation with Mike Rosel, to interfere with the State Department’s in‐ vestigation. But the instructions did not require the jury to find that Edwards acted corruptly. As in Arthur Andersen, they “simply failed to convey the requisite consciousness of wrongdoing.” 544 U.S. at 706. 14 No. 16‐2253
The Supreme Court explained the difference in Arthur An‐ dersen, recognizing that certain forms of interference with an investigation are “not inherently malign.” Id. at 704. “Con‐ sider, for instance,” the Court wrote, “a mother who suggests to her son that he invoke his right against compelled self‐in‐ crimination, or a wife who persuades her husband not to dis‐ close marital confidences. Nor is it necessarily corrupt for an attorney to ‘persuad[e]’ a client ‘with intent to … cause’ that client to ‘withhold’ documents from the Government.” Id. (ci‐ tations omitted). The district court in Arthur Andersen had instructed the jury that it should convict the accounting firm of obstruction of justice in the investigation of the Enron Corporation col‐ lapse if it found that the firm “intended to ‘subvert, under‐ mine, or impede’ governmental factfinding by suggesting to its employees that they enforce [a] document retention pol‐ icy.” Id. at 706. The instructions omitted any element of dis‐ honesty, and the Court concluded that they were “flawed in important respects” and reversed the conviction. Id. at 708. We have relied on Arthur Andersen to affirm an instruction that a defendant acted “corruptly” under § 1512 if he acted “wrongfully.” United States v. Matthews, 505 F.3d 698, 706 (7th Cir. 2007). In Matthews we affirmed a conviction for obstruc‐ tion of justice under § 1512(c), which also includes a “cor‐ ruptly” element. We found the pattern instruction use of “wrongfully” was sufficient: “As explained in Arthur Ander‐ sen, under limited circumstances, a defendant is privileged to obstruct the prosecution of a crime. … By including the word ‘wrongfully’ in the definition of ‘corruptly’ and criminalizing only the act of ‘wrongfully impeding the due administration No. 16‐2253 15
of justice,’ the instructions directed the jury to convict only those who have no legal right to impede justice.” Id. Similarly, in United States v. McKibbins, 656 F.3d 707 (7th Cir. 2011), we affirmed an obstruction of justice conviction un‐ der § 1512(c) where the focus on appeal was the evidence the government used to prove the “corruptly” element. We ex‐ plained: “The intent element is important here because the word ‘corruptly’ is what ‘serves to separate criminal and in‐ nocent acts of obstruction.’” Id. at 711 (citation omitted); see also United States v. Darif, 446 F.3d 701, 711 (7th Cir. 2006) (af‐ firming witness tampering conviction under § 1512(b)(1); jury instructions with statutory phrase “corruptly persuade” with‐ out further definition were sufficient under Arthur Andersen; instruction “adequately convey[ed] that the jury must find that Defendant acted dishonestly”). Following Arthur Andersen, courts have disagreed around the edges about just what does and does not count as corrupt persuasion, but there is no doubt that a knowingly corrupt mens rea (i.e., consciousness of wrongdoing) is an essential el‐ ement of the § 1512(b)(3) offenses charged here in Counts I and II. See United States v. Doss, 630 F.3d 1181, 1186–90 (9th Cir. 2011) (comparing interpretations of § 1512 and Arthur An‐ dersen). Some courts have suggested that an improper pur‐ pose, such as the intent to avoid criminal liability, may satisfy this requirement. Other courts require a more affirmative act of deception such as urging a witness to lie to investigators.3
3 As Doss recounted, the Second and Eleventh Circuits have held that
“that persuasion with an ‘improper purpose’ qualifies (such as self‐inter‐ est in impeding an investigation),” while the Third and Ninth Circuits have held that “there must be something more inherently wrongful about the persuasion (such as bribery or encouraging someone to testify 16 No. 16‐2253
Whatever the contours of the corrupt persuasion element, however, the error here was that the jury instructions did not say anything about wrongfulness at all: no reference to im‐ proper purpose, no requirement of deception, and no men‐ tion of conscious wrongdoing. The instructions left the door open for the jury to convict Edwards on the basis of innocent rather than corrupt persuasion. As the government acknow‐ ledged at oral argument, the instructions would not have per‐ mitted an attorney defending Arthur Andersen’s hypothetical mother who tells her son to invoke his Fifth Amendment priv‐ ilege or wife who asks her husband to invoke the spousal privilege to argue that her client did not thereby violate the statute. The fundamental rule when instructing a jury in a criminal case is that the instructions must identify for the jury all ele‐ ments of the offense that must be proved beyond a reasonable doubt. See Neder v. United States, 527 U.S. 1, 6–8 (1999) (gov‐ ernment conceded failure to instruct jury on essential element of materiality was constitutional error); see also United States
falsely).” 630 F.3d at 1186, 1189. Compare, e.g., United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996) (“The inclusion of the qualifying term ‘cor‐ rupt[ ]’ means that the government must prove that the defendant’s at‐ tempts to persuade were motivated by an improper purpose.”), and United States v. Shotts, 145 F.3d 1289, 1301 (11th Cir. 1998) (endorsing the reasoning of Thompson), with United States v. Farrell, 126 F.3d 484, 489 (3d Cir. 1997) (“[M]ore culpability is required for a statutory violation than that involved in the act of attempting to discourage disclosure in order to hinder an investigation”), and Doss, 630 F.3d at 1187‐89 (endorsing the reasoning of Farrell and disapproving Thompson and Shotts). Thompson and Shotts predate Arthur Andersen, and while the Supreme Court did not ex‐ pressly disapprove them, it is difficult to square their looser “improper purpose” standard with the Arthur Andersen emphasis on conscious wrongdoing and dishonesty. No. 16‐2253 17
v. Gaudin, 515 U.S. 506, 510 (1995) (Fifth and Sixth Amend‐ ments “require criminal convictions to rest upon a jury deter‐ mination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt”); Sullivan v. Louisiana, 508 U.S. 275, 277–78 (1993) (“prosecution bears the burden of proving all elements of the offense charged, and must persuade the factfinder ‘beyond a reason‐ able doubt’ of the facts necessary to establish each of those el‐ ements”) (citations omitted). This need to instruct the jury on all elements of the offense applies even when the trial judge believes an element may be confusing, ambiguous, or difficult to describe in terms that ju‐ rors will understand. In such situations, the trial judge may find that pattern jury instructions are inadequate. That’s fine: as noted above, pattern instructions are helpful resources, not holy writ. The trial judge is empowered to improve on the pattern language or even to start from scratch. But whether the judge uses a pattern instruction verbatim, adapts a pattern instruction to the specifics of the case, or drafts an instruction from scratch, the judge must ensure that the instructions con‐ vey each element of the charged crime. The instructions here did not. They failed to inform the jury about an essential ele‐ ment of the witness tampering charges—the corrupt mental state that distinguishes unlawful from innocent interference with an investigation.4
4 To the extent the pattern instruction for the “corruptly” element of
18 U.S.C. § 1512 seemed inadequate to the trial judge, Arthur Andersen it‐ self includes some amplifying language specific to the “knowingly … cor‐ ruptly” phrasing in § 1512(b): “‘Knowledge’ and ‘knowingly’ are normally associated with awareness, understanding, or consciousness. ‘Corrupt’ 18 No. 16‐2253
We therefore must vacate Edwards’s convictions under Counts I and II unless the instruction error was “harmless be‐ yond a reasonable doubt.” McDonnell v. United States, 579 U.S. —, —, 136 S. Ct. 2355, 2375 (2016), quoting Neder, 527 U.S. at 16; accord, United States v. Carter, 695 F.3d 690, 696–97 (7th Cir. 2012); United States v. Hatfield, 591 F.3d 945, 951 (7th Cir. 2010); United States v. Ramsey, 406 F.3d 426, 432 (7th Cir. 2005). We cannot treat this error as harmless. It’s true that the government’s evidence was legally sufficient to support guilty verdicts on Counts I and II, as we explain below. The jury might have disbelieved Edwards’s testimony, believed Rosel’s, and found that Edwards urged Rosel to lie to investi‐ gators. But the jury might also have believed Edwards’s testi‐ mony and found that she believed she was advising Rosel to do nothing more than tell the truth without volunteering in‐ formation. Under the instructions given in this case, a jury that believed Edwards could still have convicted her on the basis of that non‐criminal intent. At no point during the two January 2013 phone conversa‐ tions (which together took nearly an hour) did Edwards ad‐ mit that the marriage between Rosel and Tsasa was a sham, i.e., motivated solely to gain immigration benefits. Edwards insisted that the marriage had been normal: a wedding, a fall‐ ing out, an amicable divorce. Perhaps Edwards was simply trying to control the narrative. Perhaps she suspected that Ro‐ sel might cooperate with authorities against her. Or perhaps
and ‘corruptly’ are normally associated with wrongful, immoral, de‐ praved, or evil. Joining these meanings together … makes sense both lin‐ guistically and in the statutory scheme. Only persons conscious of wrong‐ doing can be said to ‘knowingly … corruptly persuade.’” Arthur Andersen, 544 U.S. at 705–06 (alterations and citations omitted). No. 16‐2253 19
she genuinely believed, as she testified, that Rosel and Tsasa had a real (albeit brief and disappointing) relationship. Per‐ haps she and Rosel both testified honestly about their very different recollections of and perspectives on the nature of Ro‐ sel’s brief relationship with Tsasa, which had ended almost ten years before the telephone calls and thirteen years before trial. These are questions for properly instructed jurors, not judges. We are not privy to the jurors’ deliberations, and the verdict form offers no clues. In considering the harmless error issue, we must also note that the trial judge viewed the government’s case on these counts as weak. The judge found only “with regret” that the evidence was legally sufficient to support conviction, and he did not think those counts should even have been charged. See Dkt. No. 137 at 9, 10 (also noting Rosel’s credibility prob‐ lems in characterizing relationship ten years earlier); Dkt. No. 157 at 51–52 (questioning whether Rosel–Tsasa marriage was a sham at the time they married, noting that no money had changed hands). Under these circumstances, we cannot say beyond a rea‐ sonable doubt that a properly instructed jury would still have convicted Edwards for witness tampering. See Neder, 527 U.S. at 15, citing Chapman v. California, 386 U.S. 18, 24 (1967). Ed‐ wards is entitled to a new trial on Counts I and II. III. Vagueness Challenge Edwards also argues that the district court erred when it denied her motion to dismiss the witness tampering counts on vagueness grounds. We review de novo the district court’s legal conclusion regarding the constitutionality of 18 U.S.C. § 1512(b)(3). See United States v. Novak, 841 F.3d 721, 726 (7th 20 No. 16‐2253
Cir. 2016). We must consider this issue because if Edwards were correct, she could not be retried on those charges. The crux of Edwards’s argument is that the term “cor‐ ruptly” in § 1512(b) is ambiguous and that the statute there‐ fore “does not sufficiently define prohibited conduct.” On this point, we agree with the trial judge’s comment that the argu‐ ment is a bit strange. After all, Edwards’s challenge to the jury instructions for Counts I and II was based on the absence of “corruptly” or similar language in those instructions. How‐ ever, no rule bars Edwards from arguing in the alternative both that the statute is unconstitutional and that if it is not, the instructions were flawed, so we turn to the merits of her vagueness argument. We find no constitutional flaw. Edwards relies on United States v. Poindexter, 951 F.2d 369, 379 (D.C. Cir. 1991), which held the term “corruptly” was unconstitutionally vague where the defendant was prosecuted under 18 U.S.C. § 1505, which made it a crime to attempt to influence Congress “cor‐ ruptly.” The defendant in Poindexter was accused of lying to a Congressional committee. The discussion of the term “cor‐ ruptly” in Poindexter does not undermine Edwards’s convic‐ tions here for several reasons. First, the Poindexter majority focused on the linguistic gymnastics needed to apply the phrase “corruptly . . . influ‐ ences, obstructs, or impedes” a Congressional inquiry to a person’s own false statements to Congress. 951 F.2d at 377–84. Even the Poindexter majority would have had no difficulty finding the term “corruptly” sufficiently clear as applied to a defendant’s efforts to persuade someone else to lie to Con‐ gress. Id. at 379 (“Narrowing the transitive interpretation to include only ‘corrupting’ another person by influencing him No. 16‐2253 21
to violate his legal duty would both take account of the context in which the term ‘corruptly’ appears and avoid the vague‐ ness inherent in words like ‘immorally.’”) (emphasis in origi‐ nal). Second, Poindexter construed a different obstruction stat‐ ute. In Poindexter, President Reagan’s National Security Advi‐ sor during the Iran/Contra Affair was charged with, among other things, corruptly obstructing a congressional investiga‐ tion by making false and misleading statements to Congress in violation of 18 U.S.C. § 1505. In reversing Poindexter’s con‐ victions, the court held that the term “corruptly” as used in § 1505 was “too vague to provide constitutionally adequate notice that it prohibits lying to the Congress.” Id. at 379. Based on the narrow reasoning used in Poindexter, other courts have cabined that vagueness holding to its unusual cir‐ cumstances. E.g., United States v. Shotts, 145 F.3d 1289, 1300 (11th Cir. 1998) (“We … decline to extend Poindexter to another section of the obstruction‐of‐justice statutes. We continue to believe that Poindexter must be read narrowly, and not as a broad indictment of the use of ‘corruptly’ in the various ob‐ struction‐of‐justice statutes.”); United States v. Brenson, 104 F.3d 1267, 1280 (11th Cir. 1997) (“The holding of unconstitu‐ tionality was closely tied to the alleged illegal conduct by Poindexter and the unique nature of § 1505.”). The District of Columbia Circuit itself has limited the Poindexter holding in a way that supports application of § 1512(b)(3) here. In United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996), the court affirmed a witness tampering conviction under § 1512(b) where the defendant tried to persuade another person to lie in court. Morrison found this was an example of what Poindex‐ ter had called “transitive” corruption. 22 No. 16‐2253
Third, Poindexter predated Arthur Andersen. The Supreme Court found in Arthur Andersen that the instructions in that case did not sufficiently inform the jury about the “corruptly” element, but the Court did not imply that the term was too vague.5 For these reasons, the term “corruptly” in § 1512(b)(3) is not unconstitutionally vague as applied to a person who tries to persuade another person to lie when the other person has a legal duty to tell the truth. While there may be some uncer‐ tainty around the edges of § 1512(b), as with many criminal statutes, all circuits that have considered the question have agreed that, “at a minimum, persuading a witness to affirma‐ tively lie to investigators would violate § 1512(b).” Doss, 630 F.3d at 1186 (citation omitted); see also United States v. Baldridge, 559 F.3d 1126, 1142 (10th Cir. 2009) (“[A] non‐coer‐ cive attempt to persuade a witness to lie to investigators con‐ stitutes a violation of § 1512(b). All circuits that have consid‐ ered the issue have concluded likewise.”) (citations omitted). Other circuits have also rejected the same vagueness argu‐ ment that Edwards raises here. E.g., Shotts, 145 F.3d at 1301; United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996). The government accused Edwards of pressuring Mike Ro‐ sel to lie to investigators about his relationship with Tsasa. Based largely on his testimony, a properly instructed jury could convict Edwards if it believed she acted dishonestly.
5 Poindexter was superseded in significant part by the False Statements
Accountability Act of 1996, Pub. L. No. 104‐292, 110 Stat. 3459. As codified at 18 U.S.C. § 1515(b), the Act provides that the term “corruptly” in § 1505 “means acting with an improper purpose, personally or by influencing an‐ other, including making a false or misleading statement.” (Emphasis added.) No. 16‐2253 23
While the corrupt‐persuasion element might raise vagueness questions at the margins, the wrongdoing alleged here falls comfortably within the ambit of the statute. The statute is not unconstitutionally vague as applied to Edwards. IV. Sufficiency of the Evidence Finally, Edwards contends that the evidence introduced at trial was insufficient to support any of her four counts of con‐ viction. “In a sufficiency of the evidence challenge, we view the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Salinas, 763 F.3d 869, 877 (7th Cir. 2014), citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). We neither reweigh evidence nor assess witness credibility. If there is a reasonable basis in the record supporting the ver‐ dict, then (absent other reversible error) the verdict must stand. United States v. Moshiri, 858 F.3d 1077, 1082 (7th Cir. 2017). A. Witness Tampering To convict Edwards under 18 U.S.C. § 1512(b)(3), the gov‐ ernment had to prove that she “knowingly … corruptly” at‐ tempted to persuade another person with intent to “hinder, delay, or prevent” the communication of information relating to the “commission or possible commission” of a federal of‐ fense to a federal law enforcement officer. Mapping the facts of this case onto those statutory elements, the government had to prove that Edwards “knowingly … corruptly” at‐ tempted to persuade Mike Rosel to “hinder, delay, or prevent” the communication of information relating to the allegedly 24 No. 16‐2253
fraudulent marriage between Rosel and Tsasa to State Depart‐ ment investigators. Even though the five‐year statute of limi‐ tations had long since run on any possible prosecution of al‐ leged marriage fraud itself, Rosel’s information might have assisted the agents as they conducted their broader investiga‐ tion into instances of Mongolian visa fraud and Edwards’s in‐ volvement, if any, in such fraud. As discussed above, while there is some disagreement among the circuits about the limits of conduct proscribed by § 1512(b)(3), all agree that persuading another person to lie to investigators violates the statute. The persuasion need not be explicit. We have recognized that corrupt persuasion may oc‐ cur “where a defendant tells a potential witness a false story as if the story were true, intending that the witness believe the story and testify to it.” United States v. LaShay, 417 F.3d 715, 718 (7th Cir. 2005) (citations omitted). The government offered sufficient evidence to support the convictions under Counts I and II. The jury heard the two rec‐ orded phone calls that are the basis for the witness tampering charges. The jury also heard extensive testimony from Rosel and Edwards concerning the substance of those calls. The jury could have believed Edwards’s account rather than Rosel’s. Given the jury instruction error, for all we know the jury did believe Edwards’s account. But the jury was also entitled to credit Rosel’s testimony, which supports a finding that Ed‐ wards was urging him to lie about his relationship with Tsasa. If the case is retried on remand, a properly instructed jury could conclude that Edwards’s persistent advice to Rosel— “Tell them hey, we dated, we got married, we lived together, it didn’t work out, we got divorced, we did everything accord‐ ingly by law”—amounted to witness tampering in violation No. 16‐2253 25
of § 1512(b)(3) if she did not honestly believe that account and acted with a corrupt purpose. B. False Statements To convict Edwards on Counts III and IV under 18 U.S.C. § 1001(a)(2), the government had to prove that she knowingly and willfully made materially false, fictitious, or fraudulent statements “within the jurisdiction of the executive … branch of the Government of the United States,” that is, in connection with her CBP background investigations. While the indictment described a number of statements Edwards made during the initial investigation and 2014 rein‐ vestigation that could be deemed false, Counts III and IV fo‐ cus on just two statements: Edwards’s declaration on the 2014 SF‐86 that she never provided financial support to a foreign national and her declaration on the 2014 supplemental ques‐ tionnaire that she never helped anyone enter or stay in the United States illegally. The government introduced sufficient evidence for the jury to conclude that Edwards made these statements willfully and knowing that they were false.6 As for Count III, ample evidence supports the jury’s con‐ clusion that Edwards falsely denied providing financial sup‐ port for a foreign national. In 2002, Edwards posted a $4,000
6 The government also offered evidence that the statements were ma‐
terial. Joseph Westmoreland, director of the Personnel Security Division at CBP’s Office of Internal Affairs, testified that CBP relies on truthful dis‐ closures on background check forms (particularly with respect to ques‐ tions about foreign contacts) in determining whether an applicant is suit‐ able for employment. Truthful disclosures are especially critical for sworn CBP officers, who are expected to testify in court and who occupy posi‐ tions potentially vulnerable to bribery and coercion. 26 No. 16‐2253
cash bond to secure Tsasa’s release from immigration deten‐ tion, though Edwards testified that her parents helped supply the funds. The bond was ultimately forfeited after Tsasa failed to appear for deportation. Edwards also acknowledged that Tsasa lived at Edwards’s house in Des Plaines, Illinois, for one or two months in 2002. On cross‐examination, Edwards ad‐ mitted that she provided Tsasa with food, shelter, and spend‐ ing money during that period. Bank records show that Ed‐ wards and Tsasa opened a joint account with survivorship rights in 2008. A series of checks and deposit slips showed that Tsasa paid $10,000 to Edwards in September 2008 and that Ed‐ wards paid $3,000 to Tsasa in December 2008. (Edwards claims she brought $10,000 in cash to Tsasa’s mother in Mon‐ golia to help finance a condominium and then brought the re‐ maining $3,000 back to Tsasa.) The jury was not required to find that Edwards knowingly and willfully falsified her SF‐ 86, but it heard sufficient evidence to support such a finding. As for Count IV, the same evidence that would allow the jury to convict Edwards for obstruction would allow it to con‐ vict her for falsely stating that she never helped anyone enter or stay in the country illegally. The jury could have believed Mike Rosel’s testimony that his marriage to Tsasa was a sham and that Edwards was not only aware of but instrumental in facilitating that sham for the purpose of securing a green card for Tsasa. The government’s case against Edwards was not a slam dunk, but the Jackson v. Virginia standard is deferential. See 443 U.S. at 319. The government introduced sufficient ev‐ idence to show that Edwards violated 18 U.S.C. § 1001(a)(2). V. Resentencing Though we vacate only two of Edwards’s four convictions, the district court on remand should reconsider all terms of her No. 16‐2253 27
sentence, including the length of probation and the fine. The trial judge imposed a below‐guideline sentence after finding under the Sentencing Guidelines a total offense level of 17 and a guideline range of 24 to 30 months in prison. The guideline calculation depended on the combination of all four crimes, see U.S.S.G. § 3D1.4, particularly since the witness tampering convictions were deemed the more serious crimes. If Edwards is not properly convicted of witness tampering, her total of‐ fense level would drop to 8. See U.S.S.G. § 3D1.3(a). With criminal history category I, the guideline range for a level 8 offense would be 0 to 6 months in prison. Of course, the trial judge did not sentence Edwards to any prison term. The judge sentenced her to two years of proba‐ tion on each of the four counts of conviction, to run concur‐ rently, and a $2,000 fine plus the mandatory special assess‐ ments of $100 for each of the four felony convictions. Still, the district court on remand may conclude that a reduction in the length of probation or a decrease in the fine is appropriate given the substantial decrease in the guideline range if Ed‐ wards is not ultimately convicted by a properly instructed jury on Counts I and II. If nothing else, the special assessments of $400 would be cut in half if Edwards is not convicted of witness tampering. * * * To summarize, then, we AFFIRM Edwards’s convictions under Counts III and IV but VACATE Edwards’s sentence on those counts and REMAND for resentencing. We VACATE Edwards’s convictions and sentences under Counts I and II and REMAND for further proceedings consistent with this opinion.