United States v. Roman, Frank ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3450
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK ROMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 327—Matthew F. Kennelly, Judge.
____________
ARGUED MAY 21, 2007—DECIDED JUNE 28, 2007
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Before RIPPLE, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Frank Roman was a full-time
police officer who had a part-time job working a security
detail at a “gentlemen’s club” (or, more accurately, a
strip joint) called “Heavenly Bodies” in Elk Grove, Illinois.
Heavenly Bodies paid Roman in cash—some $37,000 in
1998 and 1999. And like a lot of “cash” that changes
hands in the underground economy, Heavenly Bodies’
payments to Roman did not find their way onto his fed-
eral income tax returns for those years. This state of
affairs led to his indictment on two counts of filing a false
tax return.
Eventually, a jury convicted Roman on both counts, and
the district judge, Matthew F. Kennelly, sentenced him to
2 No. 06-3450
a term of three years probation. Roman appeals, arguing
that the government failed to prove beyond a reasonable
doubt that he willfully filed false tax returns and that the
government committed prosecutorial misconduct when it
elicited from him, during cross-examination, that as a
police officer he took an oath to uphold and enforce the
law. Finally, Roman contends that Judge Kennelly abused
his discretion by precluding an argument based on what
he characterizes as a “golden rule” appeal. Finding insuf-
ficient merit to any of these arguments, we affirm Roman’s
conviction.
The “facts” are undisputed. Roman received cash in
payment for his work at Heavenly Bodies, but he didn’t
report any of it as income on his tax returns. During
the trial, while testifying in his own behalf, Roman
explained that he didn’t think he was required to report
the cash he received at Heavenly Bodies as income on his
returns. His “defense,” if one can call it that, is that he
made a “mistake” and did not act willfully to violate the
law.
As we have said many times, a defendant who challenges
his conviction based upon an alleged insufficiency of
evidence “bears a heavy burden.” United States v. Gonza-
lez, 933 F.2d 417, 436 (7th Cir. 1991). A jury verdict must
be upheld unless the record contains no evidence, regard-
less of how it is weighed, from which the jury could find
guilt beyond a reasonable doubt. See United States v.
Cunningham, 108 F.3d 120, 121 (7th Cir. 1997).
Roman falls miles short of overcoming his “nearly
insurmountable hurdle” of establishing that the evidence
against him was insufficient. See United States v.
Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003). The jury
obviously rejected Roman’s claim that failing to report
his income from Heavenly Bodies was a “mistake.” He
knew it was “income.” He simply had no conceivable
No. 06-3450 3
defense to the charge. So we move to the final two claims
Roman raises on this appeal.
During opening statement, the AUSA prosecuting the
case for the government remarked that Roman, as a police
officer, violated his oath to uphold the law by failing to
truthfully report all of his earned income on his tax
returns:
Now, as a police officer, the defendant took an oath to
uphold and enforce the law. As a taxpayer, the defen-
dant took an oath to truthfully report all of his in-
come. The defendant broke his oath, and the defendant
broke the law, and that is what brings us here today.
....
The defendant willfully filed a false tax return, two,
one in 1998 and one in 1999. The defendant did not
report his cash income. He broke his oath.
No objection was offered to these statements.
Subsequently, on cross-examination, the AUSA again
asked about Roman’s understanding of oaths:
AUSA: You took an oath at the beginning of
today to tell the truth, didn’t you?
Defendant: Yes, I did.
AUSA: And you understand your duty to
tell the truth, don’t you?
Defendant: Yes, ma’am.
AUSA: You took an oath as a police officer,
didn’t you?
Defendant Yes, I did.
AUSA: That was an oath to uphold the law,
right?
4 No. 06-3450
Defendant: Yes, ma’am.
AUSA: That means all of the laws, right, state,
and federal, is that correct?
Defendant: Yes, ma’am.
AUSA: And that includes the tax laws, correct?
At this point, Judge Kennelly requested a sidebar, during
which the following exchange ensued:
Judge: You anticipated something I was going to
raise before closing arguments, and
I recognize there has not been an objec-
tion, but plain error rule being what it
is, one of the things that was said in
opening was essentially a suggestion
that, as a police officer, he may have
had some higher duty than other people.
And that resonated a little bit because
of a discussion that had come up I think
with one of the jurors back in chambers.
I don’t think it is a proper argument, and
I think that’s where this is going. So this
part finishes right now.
AUSA: I am sorry. I was trying to get to truth-
telling.
Judge: All right.
Nothing more was said on the point until Roman filed a
post-trial motion for judgment of acquittal or new trial,
arguing that the AUSA made improper remarks in refer-
ring to the fact that, as a police officer, Roman took an
oath to uphold the law. Judge Kennelly rejected the
argument, explaining:
At sidebar, the Court advised the prosecutor that we
did not believe her last inquiry was proper because it
suggested that Mr. Roman somehow had a higher duty
than other citizens to obey the tax laws. Government
No. 06-3450 5
counsel advised that was not her intent. The Court
had (and has) no reason to doubt her veracity. We
advised the government, however, that we would not
permit further inquiry along these lines. Following the
sidebar, the Court struck the law question and
answer—the one concerning whether Mr. Roman’s oath
as a police officer to uphold the law included the tax
laws—and directed the jury to disregard that question
and answer. The government made no reference to the
point thereafter, including during closing and rebuttal
argument.
We think Judge Kennelly could not have perceived or
handled the matter any better than he did. It was a model
of how an unobjected to, but arguably erroneous, (1)
comment made during opening statement, and (2) ques-
tions asked during cross-examination, should be handled.
We perceive no error on this record even if the areas of
inquiry were improper, a point we need not pursue because
at best it could never amount to anything above the
category of harmless.
Which brings us to the final issue Roman raises on this
appeal. Before the trial kicked off, the government filed a
motion in limine to preclude Roman from making a so-
called “Golden Rule” appeal, i.e., that the jury should
place itself in his shoes. In support of its motion, the
government relied on United States v. Teslim, 869 F.2d
316, 328 (7th Cir. 1989), for the proposition that such
arguments are improper. Judge Kennelly agreed and
granted the government’s motion.
Teslim ironically involved an improper “Golden Rule”
argument by the government: “[I]f it happened to you and
you had nothing to hide—” Here, Roman was rebuffed
when he sought to argue that the jurors should put
themselves in his shoes and consider “There but for the
grace of God go I.”
6 No. 06-3450
This proposed argument was correctly foreclosed by
Judge Kennelly. As we explained in Teslim, a “Golden
Rule” appeal in which the jury is asked to put itself in
the defendant’s position “is universally recognized as
improper because it encourages the jury to depart from
the neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.”
869 F.2d at 328.
In his brief, Roman writes:
In a tax evasion case such as this, it is a logical exten-
sion to ask the jury to think about evil versus stupid,
to speculate what they would do, were they to be
placed in the subjective shoes of the defendant. This
is precisely what “there, but for the grace of God”
requests. No more no less than the objective discern-
ment of evil as viewed from the defendant’s subjec-
tive eyes. “God” in this context being a surrogate for
the all knowing introspective “See,” the diviner of
the secrets in men and women’s heart.
Whatever can be said about this contention, one thing is
certain: it’s not persuasive. We see no reason why the
rule against arguing about the Golden Rule should be
reconsidered in this case.
For these reasons, the judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-07