United States v. Darif, Anouar ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3377
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANOUAR DARIF,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 40047—Joe Billy McDade, Chief Judge.
____________
ARGUED MARCH 30, 2006—DECIDED MAY 3, 2006
____________
Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Defendant-Appellant Anouar
Darif (“Defendant”), was charged in a three-count super-
ceding indictment with conspiracy to commit marriage
fraud, in violation of 18 U.S.C. § 371, marriage fraud, in
violation of 8 U.S.C. § 1325(c), and witness tampering, in
violation of 18 U.S.C. § 1512(b)(1). The first two counts were
based on allegations that Defendant, a native of Morocco,
paid $3000 to Dianna Kirklin (“Kirklin”), an American
citizen, to marry him and help him obtain a United States
visa. The third count was based on a letter that Defendant
sent to Kirklin while he was in jail pending trial, in which
2 No. 05-3377
he urged Kirklin to contradict testimony she gave before the
grand jury in Defendant’s case.
Before proceeding to trial, Defendant filed a motion in
limine seeking to prevent the government from introduc-
ing into evidence letters he had written to Kirklin. Defen-
dant also filed a motion to dismiss for improper selective
prosecution. The district court denied both of Defendant’s
motions. The district court also rejected several of De-
fendant’s proposed jury instructions. A jury found Defen-
dant guilty on all three counts. Defendant appeals. For the
following reasons, we affirm.
I. Background
In November 2000, Ouaffa Melliani offered Dianna
Kirklin a deal: Kirklin would receive $3000 if she flew to
Morocco, married Defendant, and helped Defendant ob-
tain paperwork necessary to stay in the United States.
Melliani had known Defendant while she was also living in
Morocco, but Kirklin and Defendant were strangers.
Defendant had tried and failed on two previous occasions to
obtain a United States visa. Kirklin accepted Melliani’s
offer. Melliani provided Kirklin with detailed written
instructions about how to behave when she arrived in
Morocco, especially when dealing with the American
Embassy. Melliani also gave Kirklin $1000, with the
remaining $2000 to be paid when Kirklin returned from
Morocco.
Kirklin flew to Morocco, arriving on Saturday, November
25, 2000. Defendant met Kirklin at the airport, holding
a sign with her name written on it, and greeted her with a
handshake. The following Monday, Defendant and Kirklin
began visiting various government offices in Morocco to
obtain the paperwork necessary to marry. On December 5,
2000, Defendant and Kirklin were married. They celebrated
at a party with Defendant’s family and friends. They did not
No. 05-3377 3
consummate the marriage and stayed in separate rooms for
the remainder of Kirklin’s trip. Defendant helped Kirklin
fill out an I-130 Petition for Alien Relative form, which
Kirklin would later submit to the Immigration and Natural-
ization Service (“INS”) to begin the process of obtaining a
visa for Defendant.
Kirklin left Morocco on December 14, 2000. Defendant
remained in Morocco, waiting to obtain a United States
visa. Melliani paid Kirklin the remaining $2000. On
December 26, 2000, Kirklin submitted the Petition for Alien
Relative form to the INS. The INS approved the petition on
April 14, 2001.
On November 8, 2001, Defendant submitted to the United
States Consulate in Morocco an application for a visa to
enter the United States, based on his status as a spouse of
a United States citizen. The consulate issued Defendant a
visa that day. On December 10, 2001, Defendant presented
the visa to United States Immigration in Chicago and was
admitted into the United States as a spouse of a United
States citizen. Defendant went to Kirklin’s home in Rock
Island, Illinois, where he allegedly believed he would be
living. Kirklin initially told Defendant that he could not
stay with her. She claims to have felt sorry for him, how-
ever, and let him live with her for three months before she
asked him to leave. Defendant then moved into an apart-
ment with Melliani. He later took a job as a long-distance
truck driver, which required him to be on the road for long
stretches of time. While living apart from Kirklin, Defen-
dant claims to have corresponded with her on a regular
basis, taken her out to dinner numerous times, and at-
tended her family functions. The couple filed joint federal
and state tax returns and opened a joint bank account.
Defendant and Kirklin, however, did not consummate their
marriage, and there was evidence that Defendant had a
sexual relationship with another woman during the time he
was married to Kirklin.
4 No. 05-3377
On June 16, 2004, Defendant and Melliani were jointly
charged with conspiracy to commit marriage fraud. Defen-
dant also was charged with a substantive count of marriage
fraud. Both counts against Defendant were based on his
marriage to Dianna Kirklin in December 2000. Melliani was
charged with a substantive count of marriage fraud. Both
counts against Melliani were based on Melliani’s marriage
to Jeremy Cozadd (“Cozadd”) in January 2002. The charge
alleged that Melliani paid Cozadd $5000 to marry her after
her United States visa expired.
On September 10, 2004, Melliani plead guilty to Count
Four and was sentenced to time served and two years
supervised release. Defendant’s case remained scheduled
for trial on January 24, 2005. On December 16, 2004, the
government filed a superceding indictment against De-
fendant. The new indictment included the conspiracy to
commit marriage fraud and marriage fraud counts, and
added a new count for witness tampering, which allegedly
occurred in October 2004.
Defendant filed a motion to dismiss due to selective
prosecution, arguing that the government acted improperly
by prosecuting Defendant and Melliani, who were Arabs,
and not charging the two alleged American co-conspirators,
Kirklin and Cozadd. The district court denied the motion.
Defendant also filed a motion in limine regarding the
marital communications privilege. Defendant requested
that the district court prohibit the government from
introducing correspondence between Defendant and Kirklin.
The content of one of those letters was the basis for the
witness tampering offense added to Defendant’s
superceding indictment. The district court found that the
marital privilege did not apply and denied the motion.
Defendant’s case went to trial on April 25, 2005. During
the government’s case in chief, the district court granted the
government’s motion to give Kirklin immunity in return for
No. 05-3377 5
her testimony. The district court then stated, in response to
a question by defense counsel, that the marital testimonial
privilege was not available to Kirklin and that she was
required to testify against Defendant.
After the close of the government’s evidence, the district
court denied Defendant’s renewed motions regarding
selective prosecution and marital privilege and denied
Defendant’s motion for judgment of acquittal. The district
court also rejected several of Defendant’s proposed jury
instructions on the marriage fraud counts. On April 27,
2005, the jury convicted Defendant on all three counts.
On August 5, 2005, the district court sentenced Defendant
to 21 months imprisonment on each count, to run concur-
rently, three years supervised release, and a $300 special
assessment.
II. Discussion
A. Marital Privileges
Defendant raises two challenges related to marital
privilege: first, that the district court erred by finding that
the marital communications privilege did not prevent
disclosure of letters Defendant wrote to Kirklin while he
was in jail; and second, that the district court erred by
finding that Kirklin could not assert the marital testimonial
privilege and refuse to testify as a witness for the govern-
ment.
“We review the trial court’s resolution of a marital
privilege issue for an abuse of discretion.” United States v.
Westmoreland, 312 F.3d 302, 306 (7th Cir. 2002). “[S]pecial
deference is given to the evidentiary rulings of the district
court.” United States v. Lea, 249 F.3d 632, 641 (7th Cir.
2001). If we find that evidence barred by a marital privilege
was improperly admitted, “we must determine whether the
error was harmless.” Westmoreland, 312 F.3d at 309.
6 No. 05-3377
1. Marital communications privilege
The marital communications privilege, which Defendant
attempted to assert before the district court, “applies only to
communications made in confidence between the spouses
during a valid marriage.” Lea, 249 F.3d at 641. The privi-
lege may be asserted by either spouse. Id. It “exists to
ensure that spouses generally, prior to any involvement in
criminal activity or a trial, feel free to communicate their
deepest feelings to each other without fear of eventual
exposure in a court of law.” Westmoreland, 312 F.3d at 307
n.3.
Prior to trial, Defendant filed a motion in limine seek-
ing to prevent the government from introducing into
evidence several letters written between Defendant and
Kirklin. One of these letters, written by Defendant and
postmarked October 12, 2004, formed the basis of the
witness tampering count. The letter stated, in relevant part:
Dianna Don’t be scared for no body
I know [the INS agent] told you “in stade to have two
person in prison we will have three”. see just for those
words that is unconstitutional. there is nothing nothing
they will do to you nothing. even if you change the hole
thing you told them, One: you can say I was under
pressure; two: you can say that at that time you for-
got to take your medecin. three: you can just say
that my husband and I we were having a family
problemes at the time and after that we worked it out
and we are just fine now. the maximum points you will
have if you lie or change what you said in front of the
grand jury is 4 point wich means 3 to 4 months in
prison or 6 month pro or 2,500 Dollars fine. that’s
according to the “federal sentencing gide line” and that
No. 05-3377 7
for a normal person, not some one who has a permanent
brain damage. and that for a crimmel case, like murder.
The district court found that the letters were not subject
to the marital communications privilege because the
marriage was entered into fraudulently. The district
court also found the marital communications privilege
inapplicable because the spouses were joint participants
in the underlying marriage fraud.
We affirm the district court’s decision that the marital
communications privilege does not apply, based on the
court’s reasoning that Defendant and Kirklin were joint
participants in the marriage fraud scheme. The marital
communications privilege “places a limitation on truthful
disclosure.” Westmoreland, 312 F.3d at 307. However, “we
have recognized an exception to the privilege when spouses
are joint participants in the underlying offense.” Id. (citing
United States v. Short, 4 F.3d 475, 478 (7th Cir. 1993)).
“[W]e do not value criminal collusion between spouses, so
any confidential statements concerning a joint criminal
enterprise are not protected by the privilege.” Short, 4 F.3d
at 478.
In this case, the superceding indictment alleged that
Kirklin was a co-conspirator with Defendant in the underly-
ing marriage fraud offense. In his October 12, 2004 letter to
Kirklin, Defendant tried to persuade Kirklin to testify
differently than she did before the grand jury and suggested
certain stories Kirklin could tell. He also tried to persuade
Kirklin that if she “lie[d] or change[d] what [she] said in
front of the grand jury,” she would receive only a short
prison sentence.
Defendant maintains that the privilege was not destroyed
by the joint crime exception because the October 12, 2004
letter “had nothing to do with the alleged joint criminal
activity that occurred in December 2000”—i.e., commission
of the underlying marriage fraud. Defendant’s point seems
8 No. 05-3377
to be that in the letter he suggested a whole new crime—
witness tampering—which Kirklin had not contemplated or
agreed to. According to Defendant, the joint crime exception
would apply only if the letter discussed and attempted to
further the marriage fraud. Defendant fails to recognize
that the letter does relate to the underlying marriage fraud:
in it, Defendant urged Kirklin to change her testimony at
his trial to evade the marriage fraud charges and specifi-
cally referenced the grand jury proceedings at which Kirklin
testified that she entered into the marriage fraudulently.1
In sum, we find that the October 12, 2004 letter was
admissible under the joint crime exception to the marital
communications privilege. We therefore find it unnecessary
to determine whether the privilege would also be inapplica-
ble because Defendant and Kirklin’s marriage was fraudu-
lent.
2. Marital testimonial privilege
The marital testimonial privilege protects an individual
from being forced to testify against his or her spouse. “The
testimonial privilege looks forward with reference to the
particular marriage at hand: the privilege is meant to
protect against the impact of the testimony on the mar-
riage.” Westmoreland, 312 F.3d at 307 n.3. Only the testi-
fying spouse can assert the privilege, and the privilege may
be waived.
1
Our analysis would be different if in fact the letter had no
relation to the marriage fraud charges, and the letter represented
the first time that Defendant suggested that Kirklin change her
testimony. “The initial disclosure of a crime to one’s spouse,
without more, is covered by the marital communica-
tions privilege.” Westmoreland, 312 F.3d at 308. However, “[i]f the
spouse later joins the conspiracy, communications from that point
certainly should not be protected.” Id.
No. 05-3377 9
At Defendant’s trial, Kirklin informed the district court
that, if called to testify, she would assert her Fifth Amend-
ment right to refuse to answer any questions on the ground
that a truthful answer would tend to incriminate her. The
government informed the court that it intended to offer
Kirklin immunity and moved for an immunity order,
pursuant to 18 U.S.C. §§ 6001 to 6003. The district court
granted the motion.
Defendant’s attorney then asked the district court
whether “someone [has] the obligation to advise Miss
Kirklin of her marital privilege.” The district court re-
sponded that Kirklin could not assert the marital testimo-
nial privilege for the same reasons Defendant could not
assert the marital communications privilege: the mar-
riage was fraudulent and Defendant and Kirklin were
joint participants in the fraud. The district court ex-
plained this ruling to Kirklin and told her that it had
“already decided that in this case you do not have a privi-
lege not to testify.” Kirklin responded, “I understand.”
Defendant argues that it was error for the district court
to instruct Kirklin that she could not assert the marital
testimonial privilege. Defendant asserts that “Ms. Kirklin
exclusively held the right not to testify against her hus-
band; she should not have been compelled to testify as a
government witness.”
Defendant’s argument mischaracterizes what actually
happened at his trial. Kirklin was not “compelled to testify”
against Defendant. She asserted her Fifth Amendment
privilege against self incrimination, was offered immunity
to testify, and accepted immunity. Only after she had
already agreed to testify, and only at the prompting of
defense counsel, did the district court inform her that the
marital testimonial privilege was not available. Kirklin
never attempted to assert the marital testimonial privilege
herself. Defendant cannot assert the right for her, because
10 No. 05-3377
the testimonial privilege, unlike the communications
privilege, can be waived by either spouse. Thus, we find
that the district court did not commit reversible error by
telling Kirklin that the privilege was unavailable to her.
B. Selective Prosecution
Prior to trial, Defendant filed a motion to dismiss due
to selective prosecution and, in the alternative, requested
an opportunity to conduct discovery regarding the United
States Attorney’s charging decision. Defendant argued
that it was improper for the government to prosecute
only Defendant and Melliani, who were Arab, and not
their United States citizen co-conspirators, Kirklin or
Cozadd.
The district court denied the motion to dismiss and the
discovery request. The district court emphasized that the
government enjoys broad discretion in deciding who to
prosecute. The district court found that the government
reasonably concluded that Defendant and Melliani were
more culpable than Kirklin and Cozadd, because they
solicited Kirklin and Cozadd to effect marriage fraud.
On appeal, Defendant once again asserts that the gov-
ernment’s decision to prosecute only Defendant and
Melliani was “based upon an unjustifiable standard—the
defendant’s race and nationality.” Defendant maintains that
“the four persons involved in the alleged conspiracy were
similarly situated in terms of criminal culpability,” and the
“only difference between the four persons was that two were
Arabs, and two were U.S. citizens.” Defendant asks this
Court to remand his case to the district court, either to be
dismissed or to allow discovery.
To show that the government engaged in improper
selective prosecution, Defendant “must demonstrate that
the federal prosecutorial policy ‘had a discriminatory ef-
No. 05-3377 11
fect and that it was motivated by a discriminatory purpose.’
”
United States v. Armstrong, 517 U.S. 456, 465 (1996)
(quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).
To make out a prima facie case of selective prosecution,
which a defendant must do in order to receive an eviden-
tiary hearing, Defendant must show that he “(1) . . . [was]
singled out for prosecution while other violators similarly
situated were not prosecuted; and (2) the decision to
prosecute was based on an arbitrary classification such as
race, religion, or the exercise of constitutional rights.”
United States v. Monsoor, 77 F.3d 1031, 1034 (7th Cir.
1996) (quoting United States v. Cyprian, 23 F.3d 1189, 1195
(7th Cir. 1994)) (internal quotation marks omitted).
Under this standard, we find that the district court did
not abuse its discretion in denying Defendant’s motion to
dismiss and discovery request. The district court reasoned:
Clearly, Defendant and Ms. Melliani, regardless of their
ethnicity or religion, who solicited the marriages, paid
for the marriages, and sought to gain immigra-
tion status by entering into the marriages were most
culpable of the four, and it was within the discretion
of the Government to prosecute them for that reason.
“We review a district court’s decision to deny a motion to
dismiss an indictment for an abuse of discretion.” United
States v. Alanis, 265 F.3d 576, 584 (7th Cir. 2001). We find
that the district court did not abuse its discretion by
determining that Defendant and Melliani were not similarly
situated to the two American co-conspirators. Defendant
and Melliani were arguably more culpable because they
sought to gain immigration status through the fraudulent
marriages. Additionally, there is evidence that the govern-
ment would have prosecuted Kirklin and Cozadd, had they
not agreed to accept immunity in exchange for testimony
against Defendant and Melliani. Kirklin and Cozadd’s
decision to cooperate with the government rendered them
12 No. 05-3377
not “similarly situated” to Defendant and Melliani. See
Alanis, 265 F.3d at 585 (“While a criminal defendant is
certainly not required to cooperate with the government, it
is axiomatic that an individual who decides not to cooperate
with the government is not similarly situated to one who
does cooperate.”). The government’s decision to offer the
United States citizen spouses immunity for testifying
against the foreign spouses, who the government deemed to
be more culpable, falls within the government’s broad
prosecutorial discretion. See, e.g., United States v. Blake,
415 F.3d 625, 627 (7th Cir. 2005).
C. Jury Instructions
Defendant argues that the district court should have
accepted his proposed jury instructions on the marriage
fraud charge. Without those instructions, Defendant
contends, the jury was not informed of all the elements
of the marriage fraud offense and he was thereby preju-
diced. Additionally, Defendant argues that the district court
should have provided a definition of “corruptly persuades”
in relation to the witness tampering count.
“We review jury instructions de novo to determine
whether they provide fair and accurate summaries of the
law.” Savino v. C.P. Hall Co.,199 F.3d 925, 934 (7th Cir.
1999) (citing United States v. Tingle, 183 F.3d 719, 729 (7th
Cir. 1999)). However,
recognizing that the formulation of jury instructions
is not an exact science, the district court is given
substantial discretion with respect to the precise
wording of jury instructions, so long as the instruction
completely and correctly states the law. Notably, the
district court is under no obligation to adopt the word-
ing of any of the litigants’ proposed instructions.
Reversal is warranted on this point only if an instruc-
No. 05-3377 13
tion misstates the law and this error misguides the jury
so much that one party is prejudiced.
Savino,199 F.3d at 934 (citing Tingle, 183 F.3d at 729;
Russell v. Nat’l R.R. Passenger Corp., 189 F.3d 590, 594 (7th
Cir. 1999); Wichmann v. Bd. of Trustees of S. Ill. Univ., 180
F.3d 791, 804 (7th Cir. 1999)).
Defendant must satisfy a four-part test to demonstrate
that he was entitled to his proposed jury instructions.
Defendant is required to show that: “(1) the proposed
instruction is a correct statement of the law; (2) the evi-
dence in the case supports the theory of defense; (3) the
theory of defense is not already part of the charge; and
(4) failure to include the proposed instruction would deny
the defendant a fair trial.” United States v. Chavis, 429 F.3d
662, 671 (7th Cir. 2005).
1. Marriage Fraud
The district court instructed the jury that the government
must prove the following to find Defendant guilty of
marriage fraud:
First, that the defendant knowingly entered into a
marriage with Dianna Kirklin;
Second, that the defendant knowingly entered into a
marriage for the purpose of evading any provision of the
immigration laws;
Third, the defendant knew or had reason to know that
his conduct was unlawful.
Prior to trial, Defendant requested that the district
court include the following additional instructions:
1. That at the time of the marriage, Anouar Darif
did not have the intent to establish a life with
Dianna Kirklin.
14 No. 05-3377
2. Marriage fraud may be committed by one party
to the marriage, or a person who arranged the
marriage, yet the other spouse may genuinely
intend to marry. If one spouse intended the mar-
riage to be fraudulent, when the ceremony took
place, but the other spouse intended it to be gen-
uine, then the one committed marriage fraud but
not the other.
3. The marriage is legitimate so long as Anouar Darif
intended to establish a life with his spouse at
the time he married her, even if securing an immi-
gration benefit was one of the factors that led him
to marry her.
4. A marriage between a foreign person and a United
States citizen is not required to be more conven-
tional, or successful, than a marriage between U.S.
citizens.
The district court denied the inclusion of all four instruc-
tions. Defendant argues that this was error because all
of the instructions are necessary to provide the jury with a
full and accurate statement of the marriage fraud offense.
Defendant bases this argument on several cases from other
federal circuit courts, but none from the Seventh Circuit.
See United States v. Orellana-Blanco, 294 F.3d 1143, 1151
(9th Cir. 2002); United States v. Tagalicud, 84 F.3d 1180,
1185 (9th Cir. 1996); Cho v. Gonzalez, 404 F.3d 96, 102-03
(1st Cir. 2005); Bark v. Immigration & Naturalization
Service, 511 F.2d 1200, 1201-02 (9th Cir. 1975).
We find that Defendant’s proposed jury instructions
are not supported by the language of the statute defin-
ing the marriage fraud offense, 8 U.S.C. § 1325(c), nor by
this Circuit’s case law. The statute provides that “[a]ny
individual who knowingly enters into a marriage for the
purpose of evading any provision of the immigration laws
No. 05-3377 15
shall be imprisoned for not more than 5 years, or fined
not more than $250,000, or both.” 8 U.S.C. § 1325(c).
Defendant’s first and third proposed jury instructions are
misstatements of the law. Under this Circuit’s precedent,
the government is not required to show that Defendant
lacked intent to establish a life with Kirklin; it need only
show that Defendant entered into the marriage with Kirklin
for the purpose of evading immigration laws. Additionally,
even if Defendant “intended to establish a life with” Kirklin,
he still could have entered into the marriage for purposes of
evading the immigration laws—especially since Defendant
and Kirklin would have to appear before the INS several
years into their marriage in order for Defendant to receive
a permanent green card.
The second instruction proposed by Defendant is al-
ready encompassed in the directions the district court
approved. The district court instructed the jury that it must
find “that the defendant knowingly entered into a marriage
for the purpose of evading any provision of the immigration
laws.” (Emphasis added.) If the jury agreed with Defen-
dant’s argument that he thought he was entering a valid
marriage even though Kirklin did not, then it would find,
under the existing jury instructions, that defendant had not
“knowingly entered into” the marriage for fraudulent
purposes.
The fourth instruction proposed by Defendant is simply
irrelevant. Neither the government nor the district court
ever suggested that a marriage between a foreign citizen
and a U.S. citizen is fraudulent unless it is conven-
tional and successful. The key inquiry, which is reflected in
the jury instructions that were used at Defendant’s trial, is
whether Defendant entered into the marriage for the
purpose of evading the immigration laws. If the answer is
yes, it does not matter how conventional or successful the
marriage is, Defendant has committed marriage fraud.
16 No. 05-3377
Likewise, if the answer is no, it does not matter how
unconventional or unsuccessful the marriage is, Defendant
is innocent.
2. Witness Tampering
Defendant asserts that he asked the district court to
include a definition of “corruptly persuade” in the jury
instructions, but that the court refused to do so. Defendant
never claims that he offered his own definition of the
phrase.
The witness tampering offense is defined at 18 U.S.C.
§ 1512(b):
(b) Whoever knowingly uses intimidation, threatens, or
corruptly persuades another person, or attempts to do
so, or engages in misleading conduct toward another
person, with intent to—
(1) influence, delay, or prevent the testimony of any
person in an official proceeding[ ]
...
shall be fined under this title or imprisoned not more
than ten years, or both.
The district court instructed the jury that in order to
find Defendant guilty of witness tampering, it must find
that
1. On or about October 12, 2004, Dianna Kirklin was
a prospective witness;
2. That the defendant attempted to corruptly persuade
Kirklin to provide false testimony;
3. That the defendant acted knowingly with the intent
to influence Kirklin’s testimony.
No. 05-3377 17
Defendant argues that under the Supreme Court’s re-
cent decision in Arthur Andersen LLP v. United States,
544 U.S. 696, 125 S. Ct. 2129 (2005), the district court’s
failure to define “corruptly persuade” for the jury consti-
tutes reversible error. In Arthur Andersen, the Court
found that a jury instruction on a witness tampering charge
was insufficient because it failed to adequately convey 1)
that the statute contains an intent element; and 2) that the
statute requires proof of a nexus between the corrupt
persuasion and a particular proceeding. See
Arthur Andersen, 125 S. Ct. at 2136-37.
We find that Defendant has waived his right to chal-
lenge the omission of the definition of “corruptly persuade,”
because he did not raise it before the district court. At trial,
Defendant agreed to the proposed jury instructions for the
witness tampering charge. Indeed, the district court used
instructions that Defendant himself proposed. Cf. United
States v. Gonzalez, 319 F.3d 291, 298 (7th Cir. 2003)
(challenge to jury instruction waived when defendants
accepted challenged instruction). Defendant did ask the
district court whether the jury might be confused by the
term “corruptly persuade” and whether there was a stan-
dard definition of the term. The district court responded
that there was not, and told Defendant to file a proposed
definition if he wanted one to be included. Defendant did
not file a proposed instruction, and cannot now complain
that the district court erred by not including its own
definition.
Finally, we note that the jury instructions used by the
district court were sufficient under Arthur Andersen, 125 S.
Ct. 2129. In that case, the defendant was charged with
witness tampering based on its order to employees to
shred certain documents. The Supreme Court found that
the jury instructions on the charge were insufficient
because they “required no type of dishonesty and required
18 No. 05-3377
no nexus between the persuasion used to destroy documents
and any particular proceeding.” Id. at 2136.
Those problems are absent here. The district court’s jury
instructions adequately convey that the jury must find that
Defendant acted dishonestly. They state that the jury must
find that Defendant “attempted to corruptly persuade
Kirklin to provide false testimony” and “acted knowingly
with intent to influence Kirklin’s testimony.” (Emphasis
added.) It was also sufficiently clear to the jury that the
witness tampering charge was related to “a particular
proceeding.” They jury instructions state that the jury must
find that “on or about October 12, 2004, Dianna Kirklin was
a prospective witness.” On October 12, 2004, Defendant was
in jail awaiting trial on the marriage fraud charges. Kirklin
was a prospective witness at his trial on those charges.
Thus, in this case, failure to include a definition of the term
“corruptly persuade” did not deny Defendant a fair trial.
III. Conclusion
For the foregoing reasons, we AFFIRM the rulings of the
district court.
No. 05-3377 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-06