United States v. Pearson, Douglas ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-4356, 03-1005 & 03-1232
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS N. PEARSON and
ARTHUR M. HAWKINS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 01 CR 30006—David R. Herndon, Judge.
____________
ARGUED MAY 27, 2003—DECIDED AUGUST 14, 2003
____________
Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Arthur Hawkins and Douglas
Pearson were convicted of wire fraud and conspiracy
to commit wire fraud based on their participation in a
bribery scheme that facilitated the distribution of their
company’s defective batteries. Hawkins and Pearson ap-
peal their convictions, arguing, among other things, that
they should not have been tried on a superceding indict-
ment that was filed outside the relevant statute of limita-
tions, their case should not have been tried in the Southern
District of Illinois, they were prejudiced by certain discovery
2 Nos. 02-4356, 03-1005 & 03-1232
rulings of the district court, and the district court improp-
erly limited their ability to examine a key witness at trial.
We reject all of their arguments and affirm the judgment of
the district court in all respects.
I. BACKGROUND
Arthur Hawkins and Douglas Pearson were officers of
Exide Corporation, a battery manufacturer. Hawkins was
the CEO and Chair of the Board of Directors, while Pearson
served as Executive Vice President of Sales and Marketing
and later as President of North American Operations. In
1993, Exide bid on a contract to manufacture DieHard bat-
teries for Sears. Exide’s bid contained a promise of “space
age technology,” and it stated that Exide’s DieHard batter-
ies would contain silvium II (silver additive), high utiliza-
tion paste, and one-inch breed lugs. In April 1994, Exide
was awarded the DieHard contract.
Despite Exide’s promises, the batteries it manufactured
contained only trace amounts of silver, the high utilization
paste did not add any value to the battery, and the one-inch
lug created a design flaw. As early as October 1994, soon
after the batteries were rolled out in Sears stores, Exide of-
ficials were warned of significant quality problems with the
batteries. As a result, Sears indicated to Exide that it was
in jeopardy of losing the DieHard business. By the end of
October, Exide went into approximately 700 stores nation-
wide to remove defective batteries from the shelves.
In order to keep the lucrative Sears contract, Exide
bribed Gary Marks, Sears’s battery buyer. Beginning in
March 1995 and continuing through February 1996, Exide
made several payments of approximately $10,000 each to
Marks. At first, Joseph Calio, Senior Vice President of
Sales and Marketing for Exide, gave the bribes to Marks.
After Calio complained about making the payments, Exide
sent the bribes to Marks’s phony consulting company,
Nos. 02-4356, 03-1005 & 03-1232 3
DG Consulting, by check or wire. Marks left Sears in July
1997.
In April 1998, Hawkins informed Marks that Calio had
implicated Marks in an investigation by the Florida At-
torney General’s Office into the Exide bribery scheme. In
order to cover up their arrangement, Hawkins and Marks
concocted a phony consulting agreement between Exide and
DG Consulting and created supporting backdated docu-
ments to substantiate the bribe payments. Hawkins paid
Marks $15,000 in spring of 1999 and an additional $10,000
later that fall for Marks’s participation in the cover-up
scheme and for his execution of the false cover-up docu-
ments.
In January 2001, Hawkins and Pearson were charged in
a two-count indictment with wire fraud and conspiracy to
commit wire fraud. The indictment, which was filed under
seal, charged that the batteries failed testing standards and
that Exide falsified internal quality assurance reports to
hide latent manufacturing defects. It also charged that
Exide supplied the defective batteries to Sears distribution
centers, causing defective batteries to be distributed nation-
wide to consumers, and defendants failed to recall batteries
that were known to be defective. In addition, there were
allegations that Exide falsely advertised that the batteries
were manufactured with certain “proprietary features”
when the batteries either did not contain the features or
they added nothing to the durability or quality of the
batteries. Finally, according to the indictment, after the
defective batteries were in the stores, defendants made
unlawful payments to Marks in an attempt to influence his
independent judgment and to promote the business ar-
rangement with Sears, and then concealed the unlawful
4 Nos. 02-4356, 03-1005 & 03-1232
payments by causing corporate financial records to be
falsified.1
After the original indictment was returned against
Hawkins and Pearson in January 2001, two superceding in-
dictments were filed in open court in March 2001, then in
July 2001. Hawkins and Pearson were tried on the second
superceding indictment beginning on March 18, 2002. Fol-
lowing approximately three months of trial, a jury convicted
Hawkins and Pearson on both counts. Hawkins was sen-
tenced to 120 months’ imprisonment, a three-year term of
supervised release, and a fine of $1 million, while Pearson
received a sentence of 64 months’ imprisonment, a two-year
term of supervised release, and a fine of $150,000. Defen-
dants appeal.
II. ANALYSIS
Hawkins and Pearson have taken a kitchen-sink approach
to their appeal, filing separate briefs (with voluminous
appendices) and together raising over a dozen distinct
issues, each with their own sub-contentions. Neither chal-
lenges the sufficiency of the evidence to support their con-
viction. In the face of the avalanche of issues they have
raised, we will focus here on defendants’ most substantive
contentions.
1
In March 2001, Marks and Calio pled guilty to wire fraud and
signed plea agreements with the government. In December 2001,
Sears Automotive Marketing Services, Inc., a subsidiary of Sears,
entered into a pretrial diversion agreement in which the U.S.
Attorney’s Office agreed not to prosecute it in exchange for a
payment of $62.6 million.
Nos. 02-4356, 03-1005 & 03-1232 5
A. Superceding Indictment
Defendants first argue they were tried under a second su-
perceding indictment that, because it was returned outside
the statute of limitations period and did not relate back to
the original indictment, was time-barred. We review the
district court’s ruling regarding the statute of limitations de
novo. United States v. Anderson, 188 F.3d 886, 888 (7th Cir.
1999). The original indictment against defendants, which
included a wire-fraud count for the wiring of money on
January 31, 1996, was filed January 19, 2001, within the
five-year statute of limitations. See 18 U.S.C. § 3282. Sub-
sequently, a first superceding indictment was returned on
March 22, 2001, and a second superceding indictment was
returned July 19, 2001. Although only the original indict-
ment was filed within the five-year limit, “a superceding in-
dictment that supplants a still-pending original indictment
relates back to the original indictment’s filing date so long
as it neither materially broadens nor substantially amends
the charges initially brought against the defendant.” United
States v. Ross, 77 F.3d 1525, 1537 (7th Cir. 1996). Defen-
dants have two statute of limitations complaints about
the indictments: the original indictment was filed under
seal and the later indictments do not relate back to the
original indictment.
We first address defendants’ concern that the original
indictment was sealed. Defendants argue that despite the
fact that filing an indictment within the statute of limita-
tions period tolls the running of the statute of limitations,
it should not have been tolled in this case because the orig-
inal indictment was filed under seal. Federal Rule of Crimi-
nal Procedure 6(e)(4) provides that a court “may direct that
the indictment be kept secret until the defendant is in
custody or has been released pending trial.” Rule 6 does not
require the statute of limitations analysis to be altered
when an indictment is sealed, and we see no reason why, in
a case such as this where an open indictment was filed only
6 Nos. 02-4356, 03-1005 & 03-1232
two months later, the statute of limitations should continue
to run after a sealed indictment has been returned. See
United States v. Thompson, 287 F.3d 1244, 1251 (10th Cir.
2002); United States v. Edwards, 777 F.2d 644, 647 (11th
Cir. 1985); United States v. Watson, 599 F.2d 1149, 1154
(2d Cir. 1979).
Hawkins also complains that because the original indict-
ment has remained under seal, his counsel has never been
able to determine whether the first superceding indictment
relates back to the original indictment. The district court
conducted an in camera comparison of the original indict-
ment to the first superceding indictment and determined
that the only difference between the two was the removal
in the latter of the identity of an unindicted coconspirator.
Our review confirms this minor change, which, since it does
not alter or amend the charges against the defendants in
any way, does not offend the statute of limitations.
This is not to say, however, that it was proper for the
indictment to indefinitely remain under seal in the district
court. Pearson and the government acknowledge that the
identity of the coconspirator named in the original indict-
ment has been publicly revealed. This court has repeatedly
recognized the paramount importance of providing public
access to court proceedings, especially in criminal matters.
See, e.g., In re Associated Press v. Ladd, 162 F.3d 503, 509-
10 (7th Cir. 1998); Grove Fresh Distribs., Inc. v. Everfresh
Juice Co., 24 F.3d 893, 897 (7th Cir. 1994). At the very
least, once the identity of the unindicted coconspirator
became known, the indictment should have been unsealed,
and it is, as of this date, unsealed.2
2
We remind litigants that under Seventh Circuit Operating
Procedure 10, “[e]xcept to the extent portions of the record are
required to be sealed by statute . . . every document filed in or by
(continued...)
Nos. 02-4356, 03-1005 & 03-1232 7
Defendants’ second statute of limitations argument is
that changes made to the conspiracy count in the second
superceding indictment materially broadened the charge,
preventing it from “relating back” to the original indict-
ment, and leaving it time-barred. The second superceding
indictment modified the end date of the conspiracy from
February 1996 to September 2000 and added three overt
acts which occurred during that time. Defendants argue
that the three acts—Hawkins’s preparation of Marks’s false
affidavit, his preparation of a phony consulting agreement,
and his false testimony about the consulting agreement—
were not part of the wire fraud conspiracy and thus ex-
panded the alleged crime. However, “the fact that the ‘cen-
tral objective’ of the conspiracy has been nominally attained
does not preclude the continuance of the conspiracy.” United
States v. Hickey, 360 F.2d 127, 141 (7th Cir. 1966). Here,
the uninterrupted success of the conspiracy turned on
defendants’ ability to continuously conceal the truth about
the defective batteries from consumers and Exide share-
holders. Hawkins’s acts to prop up the scheme were an
integral part of the continuing actions of deceit. We find
that defendants were on notice of the charges pending
against them because “the initial indictment informed ap-
pellant[s] in no uncertain terms that [they] would have to
account for essentially the same conduct with which [they
were] ultimately charged in the superceding indictment,”
United States v. O’Bryant, 998 F.2d 21, 24 (1st Cir. 1993),
and therefore the second superceding indictment did not
violate the statute of limitations.
2
(...continued)
this court (whether or not the document was sealed in the district
court) is in the public record unless a judge of this court orders it
to be sealed. Documents sealed in the district court will be main-
tained under seal in this court for 14 days, to afford time to re-
quest the approval required by . . . this procedure.”
8 Nos. 02-4356, 03-1005 & 03-1232
B. Venue
We next examine Pearson and Hawkins’s arguments that
venue was not proper in the Southern District of Illinois.
We review claims of improper venue to determine “whether
the government proved by a preponderance of the evidence
that the crimes occurred in the district charged, viewing the
evidence in the light most favorable to the government.”
United States v. Ochoa, 229 F.3d 631, 636 (7th Cir. 2000).
Article III of the Constitution stipulates that “the Trial of
all Crimes . . . shall be held in the State where the said
Crimes shall have been committed,” § 2, cl. 3, and the Sixth
Amendment similarly requires that “[i]n all criminal prose-
cutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district
wherein the crime shall have been committed.” These
Constitutional conditions also are echoed in Federal Rule of
Criminal Procedure 18, which dictates that a criminal
prosecution must occur “in a district in which the offense
was committed.” Because the wire fraud statute does not
contain a specific statutory venue provision, the general
venue provision for offenses that occur in more than one
state or district, 18 U.S.C. § 3237(a), applies here: “any
offense against the United States begun in one district and
completed in another, or committed in more than one dis-
trict, may be inquired of and prosecuted in any district in
which such offense was begun, continued, or completed.”
Defendants contend that the substantive wire fraud count
should not have been tried in the Southern District of
Illinois because the basis for that count, a wire transfer
from a bank in the Eastern District of Pennsylvania to a
bank in the Northern District of Illinois, did not originate
in, pass through, or terminate in the Southern District of
Illinois. In cases interpreting the application of § 3237(a),
this court has held that “venue is only improper ‘if the only
acts that occurred in that district do not provide evidence of
the elements of the charged crime.’ ” United States v.
Nos. 02-4356, 03-1005 & 03-1232 9
Ringer, 300 F.3d 788, 792 (7th Cir. 2002) (quoting Ochoa,
229 F.3d at 636).
In Ringer, the defendant was charged with making false
statements to federal officers in the Eastern District of
Kentucky and was tried in the Southern District of Indiana.
Id. at 790. We held that venue was proper in the Southern
District of Indiana because, although the statements
occurred elsewhere, they were intended to influence a
trial set to occur in the Southern District of Indiana, and
the materiality of the statements was an element of the
crime. Id. at 792. Similarly, in United States v. Frederick,
835 F.2d 1211, 1212 (7th Cir. 1987), venue was proper in
the Northern District of Illinois when a defendant was
charged with witness tampering that occurred in the
Southern District of Florida but was intended to affect a
trial in the Northern District of Illinois. We explained that
“[p]roper venue is not limited to districts where the defen-
dants were physically present when they committed
unlawful acts. So long as an overt act is intended to have an
effect in the district where the case is finally brought, venue
is proper.” Id. at 1215.
In the instant case, defendants intended to defraud
customers in the Southern District of Illinois. They were
charged with wire fraud, including use of the wires to pro-
mote the sale of defective batteries through false adver-
tising in the Southern District of Illinois. Moreover, the de-
fective batteries themselves were distributed and sold in
that district, and an audit of the battery quality conducted
in the Southern District of Illinois initially uncovered the
defects in the product. The Exide Corporation, a defendant
in a companion case, was charged with similar crimes and
pled guilty in the Southern District of Illinois.
These fraudulent activities conducted in the Southern
District of Illinois provided critical evidence of the “in-
tent to defraud,” an element of the crime of wire fraud. See
10 Nos. 02-4356, 03-1005 & 03-1232
United States v. O’Brien, 119 F.3d 523, 532 (7th Cir. 1997);
see also 18 U.S.C. § 1343. The Supreme Court has empha-
sized that when analyzing venue, courts must inquire into
the nature of the offense, see United States v. Rodriguez-
Moreno, 526 U.S. 275, 280 (1999) (upholding venue in pros-
ecution of firearm offense where crime of violence, an
essential element of the firearm offense, occurred in the
trial district), and Pearson and Hawkins’s crime of wire
fraud focused on defrauding and concealing their deceit
of consumers, including those in the Southern District
of Illinois.3
Hawkins also complains that venue was improper as to
the conspiracy count. Both the sale of defective batteries
and the broadcasting of advertisements in the Southern
District of Illinois were overt acts that supported the charge
of conspiracy to commit mail fraud. “As long as one overt
act in furtherance of the conspiracy was committed in a
district, venue is proper there.” United States v. Molt, 772
F.2d 366, 369 (7th Cir. 1985). Venue for both the conspiracy
and substantive wire fraud counts was proper in the
Southern District of Illinois.
C. Discovery and Pretrial Rulings
Defendants also raise several objections to pretrial rul-
ings by the district court, and we review their complaints
keeping in mind that “[d]istrict courts have broad discretion
in discovery matters.” Packman v. Chicago Tribune Co., 267
3
Although neither party discusses the case, in United States v.
Pace, 314 F.3d 344, 350 (9th Cir. 2002), the Ninth Circuit held
that venue for a wire fraud offense may only “lie where there is
a direct or causal connection to the . . . wires.” This approach
differs with the rubric we have established for analyzing venue in
Frederick, Ochoa, and Ringer, and we decline to adopt the
analysis outlined by the Ninth Circuit in Pace.
Nos. 02-4356, 03-1005 & 03-1232 11
F.3d 628, 646 (7th Cir. 2001). We review discovery chal-
lenges for abuse of discretion, and “[w]e shall not reverse
the district court’s ruling absent a clear showing that the
denial of discovery resulted in actual and substantial
prejudice to [defendants].” Id. at 646; see also United States
v. Avery, 208 F.3d 597, 601 (7th Cir. 2000). We note at the
outset that the government maintained an open-file policy
in this case, by which defendants, through their copy ven-
dor, could copy all of the government’s records, and the
district court observed that defendants had “extraordinary
access” to documents in this case. Furthermore, defendants
have failed to show actual prejudice from any of the issues
they have raised with the discovery process. Despite this
fatal flaw, we will briefly discuss their contentions for the
sake of completeness.
We first review the district court’s rejection of defen-
dants’ motion for a continuance. In late January 2002,
Pearson moved for a trial continuance, the third such re-
quest made by defendants. Defendants argue that they
needed more time to prepare for trial because 86 boxes of
discovery material had not yet been copied by defendants’
copy vendor, and because of the large volume of documents.
Importantly, defendants do not argue that the government
did not make the 86 boxes of documents available to them,
only that the log maintained by the U.S. Postal Inspector’s
Office to account for the government boxes being taken for
copying by defendants’ copy vendor indicated that 86 boxes
had not yet been copied.4 After providing defendants free
and open access to the documents through its open-file
policy, the government was under no obligation to ensure
4
Defendants also complain about an additional 23 boxes that the
log indicates were received by defendants’ copy vendor, but of
which defendants did not receive copies. This seems to be a prob-
lem more properly addressed to the copy vendor, not to the court.
12 Nos. 02-4356, 03-1005 & 03-1232
that defendants took advantage of the open files by actually
copying or reviewing each box. Further, although there was
a large amount of discovery to review in preparation for
trial, defendants had one year from the date of the first
superceding indictment and seven and one-half months
from the date of the second superceding indictment to pre-
pare for trial. We do not find any abuse of discretion in the
district court’s denial of defendants’ motion for a con-
tinuance, as defendants had adequate time and access to
discovery in order to prepare for trial.
Second, we consider defendants’ argument that the dis-
trict court should have required the government to provide
defendants with a list of potential witnesses and a list of its
trial exhibits. Despite the fact that Federal Rule of Crim-
inal Procedure 16 addresses many of the defendants’ con-
cerns, their briefs are noticeably silent as to the Rule’s
provisions. Federal Rule of Criminal Procedure 16(a)(1)(E)
provides:
Upon a defendant’s request, the government must
permit the defendant to inspect and to copy or
photograph books, papers, documents . . . or copies
or portions of any of these items, if the item is with-
in the government’s possession, custody, or control
and: (i) the item is material to preparing the de-
fense; (ii) the government intends to use the item in
its case-in-chief at trial; or (iii) the item was ob-
tained from or belongs to the defendant.
As we have noted before, the law is clear that neither the
Constitution nor Rule 16 entitles a defendant to a list of
all prospective witnesses before trial in a noncapital case.
See United States v. Napue, 834 F.2d 1311, 1317 (7th Cir.
Nos. 02-4356, 03-1005 & 03-1232 13
1987).5 The district court may require the government to
provide a witness list, see United States v. Edwards, 47
F.3d 841, 843 (7th Cir. 1995); United States v. Jackson, 508
F.2d 1001, 1006 (7th Cir. 1975), but, as Congress recog-
nized when it declined to include such a requirement in
Rule 16, a district court may also choose not to exercise
that prerogative, since providing a witness list might
in some cases discourage witnesses from testifying or lead
to “ ‘improper contact directed at influencing their testi-
mony.’ ” Napue, 834 F.2d at 1317 (quoting H.R. CONF. REP.
NO. 94-414 (1975), reprinted in U.S.S.C.A.N. 674, 713, 716).
With respect to the provision of an exhibit list, defendants
admit that they received copies of the exhibits themselves,
and they limit their complaint to the lack of a list of the
exhibits to aid in their organization for trial. As noted
earlier, Rule 16 requires the government to make certain
physical objects and documents available for inspection and
copying, but it is silent as to any responsibility by the
government to provide an organizational guide to those
materials for defendants. Although provision of an exhibit
list likely would have made this trial more efficient for all
involved, and we certainly encourage parties to exchange
them pretrial, we cannot find the district court abused its
discretion for failing to order the government to furnish
lists that Rule 16 does not require it to provide.6
5
We note that defendants do not argue that the government
failed to comply with the Jencks Act, 18 U.S.C. § 3500(b), which
requires the government, upon defendants’ motion, to produce
statements made by any of its witnesses which the particular
witnesses signed, adopted, or approved, and which pertain to their
testimony at trial. Instead, defendants’ argument focuses on the
provision of a list of witnesses before they took the stand.
6
Because the government did provide the district court with a
courtesy copy of an exhibit list, defendants also argue that the
(continued...)
14 Nos. 02-4356, 03-1005 & 03-1232
Next, defendants argue that the district court erred in re-
jecting their motion to compel the production of approxi-
mately 3800 allegedly-defective batteries that the govern-
ment obtained from Sears. Defendants allege that, despite
the fact that the batteries were never introduced at trial,
the government’s refusal to turn over the batteries compro-
mised their ability to defend against the accusation that
the batteries were defective because they could not have
the batteries tested to determine their quality. The batter-
ies were never analyzed by any party, and the government
contends that they could not have been tested because their
condition had deteriorated to a point that made reliable
testing impossible. Defendants disagree and argue that tes-
ting would have been merely difficult, not impossible. Rule
16 requires the government to provide access to objects
“which are material to the preparation of the defendant’s
defense or are intended for use by the government as evi-
dence in chief at trial.” In United States v. Armstrong, 517
U.S. 456, 462 (1996), the Court held that “material to the
preparation of the defendant’s defense” means “the defen-
dant’s response to the Government’s case in chief,” and does
not include materials deemed by defendants to be necessary
to prove their own defense theory or to challenge the pros-
6
(...continued)
government’s failure to provide them with the same list consti-
tuted ex parte communication in violation of United States v. Culp,
7 F.3d 613 (7th Cir. 1993). Culp rightly noted that the government
has a professional obligation under ABA Model Rule of Profes-
sional Conduct 3.5(b) to provide a copy to defense counsel of “any
papers, documents or exhibits he files with the court in order to
avoid an ex parte contact with the judge.” Id. at 616 n.1. Despite
the fact that defendants’ ex parte argument misses the mark—no
information was hidden from them since they had copies of the
exhibits themselves—we emphasize that simply providing a copy
of the exhibit list to the defendants would have avoided this
unnecessary dispute.
Nos. 02-4356, 03-1005 & 03-1232 15
ecutor’s conduct of the case. Defendants argue that even
though the 3800 batteries were not part of the govern-
ment’s case, test results could have been used to respond
generally to the government’s allegations that the batteries
were defective. But even if we assume that the batteries
could have been tested and we assume that defendants
could have used test results to defend against the govern-
ment’s case in chief under Armstrong, it is difficult to imag-
ine how defendants could have suffered actual prejudice
from the lack of access to the batteries. When Exide pled
guilty, it stipulated that the batteries were manufactured
and distributed with latent defects. On the other hand, we
fail to see what harm could have come from the government
turning over the batteries. But given the uncertainty about
the condition of the batteries and Exide’s stipulation that
the batteries were in fact defective, we do not think the
district court’s denial of defendants’ motion to compel the
batteries rises to an abuse of discretion.7
Finally, defendants allege that the government improp-
erly failed to turn over several documents in violation of
Brady v. Maryland, 373 U.S. 83 (1963). In order to establish
a Brady violation, defendants must show “(1) that the pro-
secution suppressed evidence; (2) that the evidence was
favorable to the defense; and (3) that the evidence was
material to an issue at trial.” United States v. Silva, 71 F.3d
667, 670 (7th Cir. 1995). Defendants offer three “examples”
of Brady violations, but in each case fail to articulate why
the evidence sought was not available to defendants
7
Defendants also object to the district court’s refusal to compel
production of a CD-Rom holding battery data. The CD-Rom con-
tained an inventory of manufacturing codes and internal serial
numbers that were placed on the batteries. We do not see how this
information is relevant to defendants’ case, and we find no error
in the district court’s decision to deny defendants’ motion to
compel.
16 Nos. 02-4356, 03-1005 & 03-1232
through the exercise of due diligence. See United States v.
O’Hara, 301 F.3d 563, 569 (7th Cir. 2002). They first point
to the government’s refusal to turn over the grand jury tes-
timony of Tim Findlay, who, according to Pearson, coordi-
nated an Exide management buy-out plan to purchase
Kmart’s auto centers. Putting aside their failure to explain
the relevance of Findlay’s grand jury testimony to the case
at bar, the district court found, and defendants do not
dispute, that Findlay was available to be called as a wit-
ness for the defense. Defendants’ other Brady allegations
are equally unconvincing. They posit that the government
should have turned over the debriefing notes of a co-de-
fendant who pled guilty and agreed to cooperate with the
government, and that it should have provided the grand
jury testimony of defendant Hawkins’s son, Lee Hawkins.
These strike us as witnesses who would be easily available
to defendants, and defendants have not explained to the
contrary. Under these circumstances, we find no error
under Brady in the district court’s refusal to order the
government to turn over these materials.
D. Impeachment Evidence
Defendants further contend that the district court erred
when it did not allow defendants to introduce certain docu-
ments in their cross-examination of Joseph Calio. Evi-
dentiary rulings by the district court are reviewed by this
court for abuse of discretion. United States v. Nedza, 880
F.2d 896, 903 (7th Cir. 1989). Calio generally testified that
he was obtaining money for bribes through wire transfers
from Exide and covering it up by signing backdated docu-
ments that provided false reasons for the wires. He was
also a key witness against Pearson, and he described
Pearson’s active role in the conspiracy. At trial, defendants
attempted to introduce documents that they claim would
have provided a legitimate explanation for the wire trans-
Nos. 02-4356, 03-1005 & 03-1232 17
fers that Calio testified were fictitious. These documents
included airline tickets for European travel in 1995, a pass-
port showing that Calio landed in London in 1995, and an
American Express statement including a charge for plane
tickets, which defendants apparently sought to support a
theory that Calio used the money wired to him by Exide to
purchase a personal vacation to Europe rather than to bribe
Marks. The government argued that there was no connec-
tion between the documents and the bribe money wired to
Calio. The district court agreed, finding the documents
would be very misleading to the jury, and relied on Federal
Rules of Evidence 403 and 608(b) to exclude them. Given
the district court’s factual finding that the documents were
unrelated to the fraudulent transfer, we find no abuse of
discretion in the district court’s exclusion of the potentially
misleading documents. See United States v. Thomas, 321
F.3d 627, 630 (7th Cir. 2003) (“The balancing of probative
value and prejudice is a highly discretionary assessment,
and we accord the district court’s discretion great deference,
only disturbing it if no reasonable person could agree with
the ruling.”); Chase v. Consol. Foods Corp., 744 F.2d 566,
571 (7th Cir. 1984) (“Since the trial judge has the feel of the
jury in a way that the appellate court cannot, his ruling
[excluding potentially misleading evidence] will rarely be
disturbed on appeal.”).
Defendants also contend that the court erred in
ending the defense’s examination of Calio. The court ex-
cused Calio from the witness stand after a hearing in
chambers in which the government argued that Pearson’s
attorney suggested to Calio’s counsel that Calio may have
breached his plea agreement with the government, that he
should assert his Fifth Amendment privilege against self-
incrimination, and the defense would then move to strike
all of Calio’s testimony. At the time the district court ended
Calio’s testimony, Calio had testified as a government wit-
ness for three days, including substantial cross-examination
18 Nos. 02-4356, 03-1005 & 03-1232
by defendants, and had then been recalled by defendants as
a witness for the defense. Defendants claim that, as a result
of the court’s ruling, they did not have the opportunity to
examine Calio as to certain conversations he had with
government witness Rick Randalls, although defendants do
not explain the significance of this evidence or why it had
not been discussed with the witness earlier.
During the three and one-half days Calio had been on
the stand, the defense had ample opportunities to impeach
Calio on many different issues. “Merely cumulative evi-
dence is excludable, as having little probative value, Fed. R.
Evid. 403; merely cumulative impeachment evidence like-
wise.” United States v. Boyd, 55 F.3d 239, 246 (7th Cir.
1995). Defendants thoroughly questioned Calio on issues
including discrepancies in his accounts of alleged meetings
with the defendants, misstatements in a deposition with the
Florida Attorney General, tax evasion, his possible
bias against Pearson including statements that he “hated
Pearson” and had commented on Pearson’s sexual orienta-
tion, and the fact that he received a deal from the govern-
ment for his testimony. They do not explain why additional
testimony from Calio would have been anything but cumu-
lative. “Determining whether testimony is cumulative rests
within the sound discretion of the district court,” United
States v. Gardner, 211 F.3d 1049, 1055 (7th Cir. 2000), and
we find no abuse of discretion by the district court in ending
Calio’s testimony.
Hawkins and Pearson raised a number of other issues in
their appeals, and although we have considered each of
these arguments, we conclude that they are without merit
and are of insufficient importance to discuss here.
Nos. 02-4356, 03-1005 & 03-1232 19
III. CONCLUSION
Accordingly, we AFFIRM the convictions and sentences of
the defendants.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-14-03