In the
United States Court of Appeals For the Seventh Circuit
No. 10-2297
U NITED STATES OF A MERICA, Plaintiff-Appellee, v.
O NDRAY McK NIGHT, Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07-cr-00263-4—Rebecca R. Pallmeyer, Judge.
On Petition for Rehearing En Banc
D ECIDED F EBRUARY 6, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER, FLAUM, R IPPLE, M ANION, K ANNE, R OVNER, W OOD , W ILLIAMS, S YKES, T INDER and H AMILTON, Circuit Judges. On consideration of the petition for rehearing with suggestion for rehearing en banc filed by defendant- appellant and the answer of plaintiff-appellee, all of the 2 No. 10-2297
judges on the original panel voted to deny rehearing and a majority of the judges in active service voted to deny rehearing en banc. Judge Posner dissented from the denial of rehearing en banc and filed an opinion which was joined by Judges Kanne and Williams. The petition for rehearing is denied.
P OSNER, Circuit Judge, with whom K ANNE and W ILLIAMS, Circuit Judges, join, dissenting from denial of rehearing en banc. The appeal presents an important question that deserves the attention of the full court: the propriety of gratuitous jury instructions in criminal cases, which is to say instructions that do not address an issue in the case. Such instructions are apt to confuse jurors, and when as in this case they are proposed by a party rather than given on the initiative of the trial judge, they may be intended to confuse, and in the present case to undermine the efficacy of an instruction desired by the opposing party and given by the judge. Before the trial in this drug conspiracy case began, the government filed a motion in limine to bar evidence or argument that would be likely in the government’s view to incline the jury to acquit the defendant even if his guilt had been proved beyond a reasonable doubt— No. 10-2297 3
what is called “jury nullification,” a legitimate concern of prosecutors because acquittals cannot be appealed. One of the government’s concerns arose from the fact that, as is typical in drug cases, the prosecution was intending to rely heavily, for proof of the defendant’s guilt, on wiretap and other surveillance evidence and on evidence provided by informers and undercover officers, including evidence based on controlled buys by the informers. It claimed to be worried that jurors might think such investigative techniques illegal or improper, and therefore might vote to acquit the defendant even if they were convinced of his guilt. So as part of the motion in limine the government asked that the defense be barred from challenging the legality or propriety of those investigative techniques. That part of the motion is only a page and a half long, and it provides no empirical or other grounding for believing that jurors would be apt to “nullify” on the basis of indignation at the use of such techniques. Con- cern is expressed from time to time that members of minority groups who believe themselves to be targets of police harassment would as jurors refuse to convict guilty defendants, but all the government said in support of its motion to prevent the defense in this case from making claims of “outrageous government con- duct” is that there is an “increasing tendency to interject themes of ‘government misconduct’ into a defense strat- egy.” The government presented no evidence to sup- port the claim of an “increasing tendency,” or indeed of any tendency, or to suggest that defense counsel might be planning to inject such “themes” into the trial of this case. 4 No. 10-2297
Nevertheless it certainly would be improper to permit defense counsel to challenge the propriety of the deceptive investigative techniques employed by the government in this case, for in fact they are entirely proper; and so the judge rightly granted the motion. During voir dire, no juror was asked whether he or she had a problem with evidence obtained by such tech- niques, and during the trial the defense scrupulously obeyed the judge’s order not to make an issue of the propriety of the government’s investigative techniques. Yet at the instructions conference at the end of the trial the government pulled a rabbit out of its hat by unex- pectedly asking the judge to instruct the jury that sometimes the government uses undercover agents and undercover informants who may conceal their true identities in order to investigate suspected vio- lations of law. In the effort to detect violations of the law, it is sometimes necessary for the govern- ment to use ruses, subterfuges and employ investiga- tive techniques that deceive. It is not improper or illegal for the government to use these techniques, which are a permissible and recognized means of criminal investigation. Whether or not you approve of such techniques, should not enter into your delib- erations. The judge gave the instruction—over the defendant’s objection—verbatim. The panel recognized that the giving of unnecessary instructions raises the distinct possibility of cluttering the instructions No. 10-2297 5
taken as a whole and, consequently, deflecting the jury’s attention from the most important aspects of its task. See, e.g., United States v. Hill, 252 F.3d 919, 923 (7th Cir. 2001) (“Unless it is necessary to give an instruction, it is necessary not to give it, so that the important instructions stand out and are remem- bered.”). There is also a possibility that singling out this aspect of the case might be interpreted by the jurors as at least indirect approval of the effec- tiveness of the Government’s management of the in- vestigation. The decision as to whether to give an in- struction such as the one in question, of course, must be the product of an affirmative act of judicial dis- cretion. Our difficulty here is that the district court did not elaborate on its reasons for giving the instruc- tion. These are sensible precepts; gratuitous instructions con- fuse, and should not be given. Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir. 1985) (en banc); Heater v. Chesapeake & Ohio Ry., 497 F.2d 1243, 1249 (7th Cir. 1974); Clark v. Burlington Northern, Inc., 726 F.2d 448, 452 (8th Cir. 1984); Michaud v. United States, 350 F.2d 131, 133 (10th Cir. 1965); 9C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2556, pp. 112-33 (3d ed. 2008). In Llaguno, a civil rights suit against police, we said: “The judge told the jury that in evaluating the de- fendants’ behavior it should ‘not use 20/20 hindsight,’ and ‘should consider the responsibility of the police to prevent crime, apprehend criminals, and to safeguard persons and property from criminal actions.’ These in- 6 No. 10-2297
structions were not wrong in the sense of stating untruths, but they were gratuitous and prejudicial. The term ‘20/20 hindsight’ is a derisory expression for an ex post facto judgment. The plaintiffs were entitled to ask the jury to make such a judgment, evaluating the conduct of the police long after the fact. And to remind the jury, quite unnecessarily one would have thought, that the police are responsible for protecting the public safety is to place the judge’s thumb on the balance in favor of a class of defendants already regarded sym- pathetically by most jurors.” 763 F.2d at 1569.
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In the
United States Court of Appeals For the Seventh Circuit
No. 10-2297
U NITED STATES OF A MERICA, Plaintiff-Appellee, v.
O NDRAY McK NIGHT, Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07-cr-00263-4—Rebecca R. Pallmeyer, Judge.
On Petition for Rehearing En Banc
D ECIDED F EBRUARY 6, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER, FLAUM, R IPPLE, M ANION, K ANNE, R OVNER, W OOD , W ILLIAMS, S YKES, T INDER and H AMILTON, Circuit Judges. On consideration of the petition for rehearing with suggestion for rehearing en banc filed by defendant- appellant and the answer of plaintiff-appellee, all of the 2 No. 10-2297
judges on the original panel voted to deny rehearing and a majority of the judges in active service voted to deny rehearing en banc. Judge Posner dissented from the denial of rehearing en banc and filed an opinion which was joined by Judges Kanne and Williams. The petition for rehearing is denied.
P OSNER, Circuit Judge, with whom K ANNE and W ILLIAMS, Circuit Judges, join, dissenting from denial of rehearing en banc. The appeal presents an important question that deserves the attention of the full court: the propriety of gratuitous jury instructions in criminal cases, which is to say instructions that do not address an issue in the case. Such instructions are apt to confuse jurors, and when as in this case they are proposed by a party rather than given on the initiative of the trial judge, they may be intended to confuse, and in the present case to undermine the efficacy of an instruction desired by the opposing party and given by the judge. Before the trial in this drug conspiracy case began, the government filed a motion in limine to bar evidence or argument that would be likely in the government’s view to incline the jury to acquit the defendant even if his guilt had been proved beyond a reasonable doubt— No. 10-2297 3
what is called “jury nullification,” a legitimate concern of prosecutors because acquittals cannot be appealed. One of the government’s concerns arose from the fact that, as is typical in drug cases, the prosecution was intending to rely heavily, for proof of the defendant’s guilt, on wiretap and other surveillance evidence and on evidence provided by informers and undercover officers, including evidence based on controlled buys by the informers. It claimed to be worried that jurors might think such investigative techniques illegal or improper, and therefore might vote to acquit the defendant even if they were convinced of his guilt. So as part of the motion in limine the government asked that the defense be barred from challenging the legality or propriety of those investigative techniques. That part of the motion is only a page and a half long, and it provides no empirical or other grounding for believing that jurors would be apt to “nullify” on the basis of indignation at the use of such techniques. Con- cern is expressed from time to time that members of minority groups who believe themselves to be targets of police harassment would as jurors refuse to convict guilty defendants, but all the government said in support of its motion to prevent the defense in this case from making claims of “outrageous government con- duct” is that there is an “increasing tendency to interject themes of ‘government misconduct’ into a defense strat- egy.” The government presented no evidence to sup- port the claim of an “increasing tendency,” or indeed of any tendency, or to suggest that defense counsel might be planning to inject such “themes” into the trial of this case. 4 No. 10-2297
Nevertheless it certainly would be improper to permit defense counsel to challenge the propriety of the deceptive investigative techniques employed by the government in this case, for in fact they are entirely proper; and so the judge rightly granted the motion. During voir dire, no juror was asked whether he or she had a problem with evidence obtained by such tech- niques, and during the trial the defense scrupulously obeyed the judge’s order not to make an issue of the propriety of the government’s investigative techniques. Yet at the instructions conference at the end of the trial the government pulled a rabbit out of its hat by unex- pectedly asking the judge to instruct the jury that sometimes the government uses undercover agents and undercover informants who may conceal their true identities in order to investigate suspected vio- lations of law. In the effort to detect violations of the law, it is sometimes necessary for the govern- ment to use ruses, subterfuges and employ investiga- tive techniques that deceive. It is not improper or illegal for the government to use these techniques, which are a permissible and recognized means of criminal investigation. Whether or not you approve of such techniques, should not enter into your delib- erations. The judge gave the instruction—over the defendant’s objection—verbatim. The panel recognized that the giving of unnecessary instructions raises the distinct possibility of cluttering the instructions No. 10-2297 5
taken as a whole and, consequently, deflecting the jury’s attention from the most important aspects of its task. See, e.g., United States v. Hill, 252 F.3d 919, 923 (7th Cir. 2001) (“Unless it is necessary to give an instruction, it is necessary not to give it, so that the important instructions stand out and are remem- bered.”). There is also a possibility that singling out this aspect of the case might be interpreted by the jurors as at least indirect approval of the effec- tiveness of the Government’s management of the in- vestigation. The decision as to whether to give an in- struction such as the one in question, of course, must be the product of an affirmative act of judicial dis- cretion. Our difficulty here is that the district court did not elaborate on its reasons for giving the instruc- tion. These are sensible precepts; gratuitous instructions con- fuse, and should not be given. Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir. 1985) (en banc); Heater v. Chesapeake & Ohio Ry., 497 F.2d 1243, 1249 (7th Cir. 1974); Clark v. Burlington Northern, Inc., 726 F.2d 448, 452 (8th Cir. 1984); Michaud v. United States, 350 F.2d 131, 133 (10th Cir. 1965); 9C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2556, pp. 112-33 (3d ed. 2008). In Llaguno, a civil rights suit against police, we said: “The judge told the jury that in evaluating the de- fendants’ behavior it should ‘not use 20/20 hindsight,’ and ‘should consider the responsibility of the police to prevent crime, apprehend criminals, and to safeguard persons and property from criminal actions.’ These in- 6 No. 10-2297
structions were not wrong in the sense of stating untruths, but they were gratuitous and prejudicial. The term ‘20/20 hindsight’ is a derisory expression for an ex post facto judgment. The plaintiffs were entitled to ask the jury to make such a judgment, evaluating the conduct of the police long after the fact. And to remind the jury, quite unnecessarily one would have thought, that the police are responsible for protecting the public safety is to place the judge’s thumb on the balance in favor of a class of defendants already regarded sym- pathetically by most jurors.” 763 F.2d at 1569. The panel in this case did not apply the precepts that it had enunciated. The district court had not just failed to “elaborate on its reason” for giving the instruction; it had given no reason; it had given an explanation devoid of reasons. And the instruction was indeed gratuitous, and so should have triggered the rule of the Hill case, quoted approvingly by the panel: “Unless it is necessary to give an instruction, it is necessary not to give it.” In urging the instruction, the government had not contended that something had occurred during the jury voir dire or the trial to suggest that one or more of the jurors disapproved of the government’s investiga- tive techniques, let alone would try to punish the gov- ernment for using them. One member of the venire said during voir dire that law enforcement had taken advantage of her stepsister and coerced her into con- fessing in a murder investigation, but that she (the venire member) did not blame the police. The reference to coercion could encompass deceptive interrogation No. 10-2297 7
techniques. But we don’t know whether this juror was empaneled, and the government doesn’t cite her remarks as a basis for the instruction. This would be a different case were there any artic- ulated reason, with some foundation in fact or theory, for believing that the jury might acquit a defendant whom it believed guilty, just because the government had used deceptive investigative techniques. All the government’s lawyer said in support of the motion, repeating in slightly different words the same empty statement in its motion in limine, was that “some jurors have issues with the government’s use of those tech- niques in general.” He didn’t say there was any indication that some jurors in this case had such issues. Nor did the district judge state or imply that she had noticed anything during the trial that would indicate a danger that some jurors had such issues. All she said was “I have given this instruction before. I don’t think it’s particularly problematic.” And so both the prosecutor and the judge treated the instruction as routine, as needing no supporting evidence either particular to the case at hand (for the judge said nothing about the facts of this case or the facts of any previous case in which she had given the instruction) or applicable to the generality of cases (per- haps evidence based on academic studies of juries). The implication was that the instruction is proper in any case in which the government relies on informers, or wire- tapping, or some other investigative method that some jurors might question. The panel opinion implies that 8 No. 10-2297
the instruction can be given in any case in which such techniques are used. A gratuitous instruction is likely to worry jurors, by making them think they must have missed something during the trial because the instruction addresses an issue that didn’t come up at trial. Jurors might think the instruction must relate to some issue in the trial, or else it would not have been given; the logical candidate for such an issue in this case is the credibility of the wiretap and informer testimony. The jurors may have put 2 and 2 together and gotten—5: since the techniques are proper and legal, the evidence they produce must be true. That would not be a sound logical inference, of course, but it is how jurors might respond to the con- fusing instruction. A related danger was that the instruction would under- mine another instruction the judge gave: that Shawn Denton, a member of the drug conspiracy who after being arrested became the government’s principal witness, was “hoping to receive benefits from the gov- ernment[,] namely, a reduced sentence in this case” and that the jurors should “give the testimony of Mr. Denton such weight as [they] feel it deserves, keeping in mind that it must be considered with caution and great care.” The testimony of a paid witness (paid with a lighter sentence—quite a valuable currency for criminals sub- ject to the possibility of a very long sentence) should indeed be considered with caution. But a juror might think that since the use of deceptive investigative tech- niques is legal and proper, their fruits shouldn’t be con- sidered with suspicion. No. 10-2297 9
All the panel says to counter this inference con- cerning interpretation of the challenged instruction is that Denton was not an undercover agent, and turned prosecution witness only after the government’s inves- tigation of the defendant was complete, and therefore the instruction about deceptive investigative tech- niques couldn’t have been referring to him. But Denton had been apprehended as a result of surveil- lance, a deceptive investigative technique, and had assisted the prosecution in its investigation by interpreting code words in phone conversations that he had had with the defendant that the government had secretly recorded—interpretive activity that was certainly part of the government’s pretrial inves- tigation. It is unrealistic to suppose that the jury would have thought the “deceptive technique” instruction unrelated to Denton’s testimony; and indeed it would have been wrong to think that. It is no answer that, as remarked in the panel opinion, jurors are “presumed” to obey their instructions. All that this bit of boilerplate means is that if instructions are legally correct, clear, and balanced, a judgment can’t be overturned by a challenge to them; they are fine. These instructions were not fine. In evaluating the clarity of instructions we need to be realistic about the limits of comprehension of jurors, as the panel was when it said that “the giving of unneces- sary instructions raises the distinct possibility of cluttering the instructions taken as a whole and, conse- quently, deflecting the jury’s attention from the most 10 No. 10-2297
important aspects of its task.” But the panel failed to follow through—to recognize that it is quite possible that the gratuitous instruction in this case was con- fusing and slanted the instructions in the government’s favor, and that the district judge may not have realized this. The obvious response to the defendant’s complaint about the instruction would have been for the panel to order a limited remand to enable the district judge to explain more fully why she gave the instruction; her explanation that she had given it previously and didn’t think it particularly problematic illustrates the difference between an explanation and a justification, as she failed even to indicate whether any or all of those cases had been ones in which the defense had tried to make an issue of the government’s investigative methods. No plausible justification for the instruction has yet been offered by anyone. The panel did remark: There will be times when circumstances arising during trial will counsel in favor of giving such an instruction. Some of these occurrences may be perceptible to us from the trial record; others, such as the facial expressions of the jurors or similar manifestations of disapproval, will be ap- parent only to the trial judge. At times, circumstances grounded in recent local events or local culture, of which the trial judge is especially cognizant, similarly might make the giving of such an instruction pru- No. 10-2297 11
dent. A trial court’s obligation includes taking note of all such situations and acting to preserve the integrity of the record. That’s fine as a generality, but it is beside the point in a case such as this in which there is no indication that the trial judge discharged her “obligation”—no indica- tion that she exercised an informed discretion in deciding to give the challenged instruction. A trial judge who gives no reason for a questionable ruling is not “acting to preserve the integrity of the record.” To the presumption that jurors understand their instructions the panel has added an apparently unrebuttable presump- tion that trial judges have a good reason, even if secret, for overruling objections to instructions that appear to be gratuitous.
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