United States v. Wantuch, Rafal ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3681
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAFAL WANTUCH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 165—Elaine E. Bucklo, Judge.
____________
ARGUED JANUARY 25, 2008—DECIDED MAY 1, 2008
____________
Before BAUER, WOOD and EVANS, Circuit Judges.
BAUER, Circuit Judge. Rafal Wantuch was indicted
on charges of conspiracy to defraud the United States,
bribery of a public official, fraudulent receipt of temporary
Alien Registration Stamps, and making false statements
to the (now defunct) Immigration and Naturalization
Service (“INS”). Much of the evidence admitted at trial
consisted of various recorded conversations between
Wantuch and a cooperating witness, his co-conspirators,
and undercover officers, from March of 1999 to October
of 2000. A jury convicted Wantuch on all four counts. The
district court sentenced Wantuch to 63 months’ imprison-
2 No. 06-3681
ment on each count, to be served concurrently. Wantuch
appeals, challenging various evidentiary rulings by the
district court and the jury instructions. We affirm.
I. Background
In 1998, the FBI, INS and Social Security Administra-
tion initiated a joint investigation called “Operation
Golden Schemes,” which focused on the criminal activities
within Chicago’s Eastern European community, particu-
larly the marketing of fraudulent immigration documents.
The FBI opened an undercover travel agency called G.S.
Golden Travel (“GSGT”), located in a small two-story
building on Belmont Avenue in Chicago. GSGT had a
sign on the door that read “By appointment only,” and
was wired for audio and video surveillance. The FBI
monitored GSGT from an adjacent storefront, and enlisted
the services of several individuals: cooperating witness
Gregory Sienkiewicz, a convicted felon with important
connections within the eastern European Chicago com-
munity; undercover INS official Clarence Robinson, posing
as a corrupt INS official who sold authentic green cards
to illegal immigrants in exchange for bribes; Tommy
Stevens, another undercover INS official who assisted
clients in obtaining fingerprints for the green card applica-
tions; and (among others) FBI agents Michael Rogers
and Robert Kowalski, who conducted surveillance at
GSGT.
As part of the investigation, Sienkiewicz spread the word
(with the help of official business cards) throughout
the criminal community that he had plenty of financial
resources to spend on contraband and stolen goods,
and that he was running an illegal green card operation
No. 06-3681 3
out of GSGT. (The business card was less explicit about the
illegal aspects of the business). The cover story was that
Sienkiewicz made an INS connection while he was in
prison, which led him to partner with a crooked INS
official (Robinson) who was willing to accept a bribe of
$5,000 in order to issue green cards to illegal immigrants.
After word got out in the community about GSGT,
“brokers” began contacting Sienkiewicz, seeking green
cards for their illegal immigrant “clients” in Chicago.
Brokers and their clients would make appointments at
GSGT, bringing with them identification, fingerprints
(obtained from Tommy Stevens) and medical examina-
tion records. Sienkiewicz acted as a liaison between the
brokers and Robinson, and took a portion of the payments
that the brokers received from their clients. Sienkiewicz
would take them to Robinson’s office, where Robinson
would conduct an interview and pretend to sell green
cards. He instructed the client to make false representa-
tions on INS forms, namely that the client was being
sponsored by an immediate family member who was a
United States citizen, and to state that the interview
was not conducted at GSGT, but at the INS office at
10 West Jackson, in downtown Chicago. At the end of the
interview, he placed an official INS I-551 stamp on each
client’s passport.
In March of 1999, the FBI received information that a
man had thirty boxes of contraband cigarettes for sale,
and he was looking for a buyer. Sienkiewicz met the
seller, who turned out to be Wantuch, at a building in
northwest Chicago. (Wantuch, a native of Poland, legally
obtained a green card when he came to the United States
in 1993.) Wantuch offered to sell the cigarettes for $15,000.
Wantuch and Sienkiewicz went back to GSGT where
4 No. 06-3681
Sienkiewicz gave Wantuch the cash. Wantuch told
Sienkiewicz that he had “other merchandise,” if
Sienkiewicz needed anything, and that Wantuch would
call him to conduct business in the future.
On May 19, 1999, Wantuch sold another box of contra-
band cigarettes to Sienkiewicz for $250. Wantuch also
offered to sell Sienkiewicz stolen cars, liquor and other
hot merchandise. Wantuch lamented that he was broke
and needed to make more money, and asked Sienkiewicz
if he needed or wanted anything. The discussion turned
to green cards, and Wantuch lowered his voice and in-
quired about whether there were “bugs.” He discussed
the possibility of working with Sienkiewicz to bring in
clients to obtain green cards. They talked about details,
confirming that Sienkiewicz’s “partner” Robinson re-
quired $5,000 and Sienkiewicz would receive fifty percent
of the profits. Wantuch said that he already had a client
lined up who would pay $12,000 for a green card.
Wantuch soon became quite the successful broker,
acquiring as many as fourteen clients from July of 1999 to
April of 2000, to purchase green cards.1 He charged his
clients between $5,000 to $13,000 in cash, above and
beyond the $5,000 bribe paid to Robinson. Wantuch
attended the interviews with his clients at GSGT, where
Robinson gave blank INS forms to Wantuch’s clients,
instructed them to falsely claim that they were spon-
sored by immediate family members who were United
States citizens and told them that they were already
approved by the INS. During these interviews (caught on
1
Wantuch’s clients paid a total of $70,000 in bribes to Robinson.
Wantuch paid Sienkiewicz a total of $14,500 in “kickbacks.”
No. 06-3681 5
videotape by the FBI), Wantuch assisted in coaching his
clients to make the false representations.
Jurgita Savickiene was one of Wantuch’s clients. She
and her sister, Lina, were illegal immigrants from Lithua-
nia. In October of 1999, they heard about Wantuch’s
INS connection, and went to Wantuch’s apartment to fill
out the paperwork. Jurgita asked Wantuch how the pro-
cess worked, and Wantuch explained to her that she
would have to obtain fingerprints, a medical examination,
and go to GSGT to meet the immigration officer who
would place a stamp on her passport. Wantuch told
Jurgita that it did not matter what her actual immigration
status was, and that she was “pretty much safe.” Jurgita
said she would think about it, and Wantuch responded
that the “immigration guy” would be raising his prices.
Jurgita eventually agreed to pay Wantuch for a green card.
She went to Wantuch’s apartment on November 3, 1999,
to fill out the paperwork, and they agreed on a price of
$13,000. Jurgita gave Wantuch $3,000 as a down payment.
Wantuch later called her to say he had made an appoint-
ment for her at GSGT and to bring the remaining $10,000
in cash with her.
On December 13, 1999, Wantuch and Jurgita arrived
at GSGT with the paperwork. Jurgita testified that she
knew that the travel agency was not an INS facility. During
the meeting, in which Sienkiewicz was present, Wantuch,
Jurgita, and Robinson went over her paperwork. Robinson
told her that if she was ever asked, to say that her sister
was a U.S. citizen and her immigration interview was
conducted downtown at the INS office. Wantuch agreed,
and also told her, “Just don’t worry about anything, just
go to the line for the U.S. citizens in the airport . . . just
don’t go to the visitor’s . . . everything is going to be in
6 No. 06-3681
the computer.” Robinson stamped her passport. Wantuch
took the cash from Jurgita, gave $5,000 to Robinson and
$2,000 to Sienkiewicz, and placed the remainder of the
cash in his sock.
Gregorz Gudanowski, an illegal immigrant from
Poland, was Wantuch’s fourteenth and final client.
Gudanowski was introduced to Wantuch by a friend,
and met with him in February of 2000 to discuss
Gudanowski’s immigration problems.2 Wantuch told
Gudanowski that he could get a green card in six months
for $20,000. Gudanowski thought the price was too high.
Wantuch lowered his price to $16,000, and Gudanowski
agreed to pay. On March 10, 2000, Gudanowski met
Wantuch at the INS fingerprint office where Tommy
Stevens worked, and gave Wantuch a down payment of
$2,000. Wantuch set up an appointment at GSGT on
April 19, 2000, and instructed Gudanowski to bring
$10,000 cash, his paperwork, and passport. During the
meeting in Robinson’s office, Robinson stamped Gudanow-
ski’s passport and told him that, if anyone asked, he
was interviewed at the INS office on Jackson. Wantuch
told Gudanowski that “in case anyone ever asks you,
you were at . . . West Jackson . . . downtown, Chicago.
That’s where you got this stamp.” Wantuch told Robinson
2
Gudanowski had exhausted all legal means to obtain docu-
ments. In 1994, he hired an attorney and attempted to obtain
employer sponsorship, but his efforts failed. He voluntarily
left the United States in 1999, and returned illegally in January
of 2000. When he was told by an attorney that it would cost
$6,000 and take about five or six years to obtain a green card,
he sought other, faster ways to obtain a green card. Enter:
Wantuch.
No. 06-3681 7
that Gudanowski did not have any relatives in the United
States, to which Robinson responded, “Yes you do . . .
you’re his brother” and gestured to Wantuch. Wantuch
agreed, stating “yeah, ok” and “in case anyone asks
you, then say brother.” Sienkiewicz told Wantuch to
explain everything to Gudanowski later, to which Wantuch
responded, “yeah.” Gudanowski placed $10,000 on the
chair and left. Wantuch paid Robinson $5,000, Sienkiewicz
$2,500, and pocketed the remaining $2,500. Gudanowski
never received his green card, and in 2003, he received
a notice of deportation from the INS.
In mid-2000, Wantuch attempted to contact Sienkiewicz,
who did not return Wantuch’s phone calls for two months.
They finally spoke on September 9, 2000. In a recorded
conversation, Wantuch anxiously told Sienkiewicz that
he had procured many new clients, some of whom already
gave him a down payment for green cards. Sienkiewicz
told Wantuch that he had put the INS business on hold,
and to stop contacting Tommy Stevens. Wantuch promised
to stop, explaining that he only contacted Stevens be-
cause he had not heard from Sienkiewicz.
In October of 2000, the FBI recorded a meeting with
Wantuch and Robinson at GSGT. Wantuch complained
that he could not reach Robinson since the business had
slowed down, and he told Robinson that he had six
more clients. Robinson explained that the INS was con-
ducting an audit, but he was still in business, just taking
things slowly. Robinson told Wantuch that “we don’t
want nobody goin’ to jail.” Wantuch responded, “Of
course!”
On February 17, 2005, Wantuch was charged in a four
count indictment: (1) conspiracy to defraud the United
States in violation of 18 U.S.C. § 371; (2) bribery of a public
8 No. 06-3681
official in violation of 18 U.S.C. § 201(b)(1)(A) and (2);
(3) fraudulent receipt of temporary alien registration
stamps, in violation of 18 U.S.C. § 1546; and (4) making
false statements to the INS, in violation of 18 U.S.C. § 1001(a)(2) and (2).
The government’s theory was that between March of
1999 and April of 2000, Wantuch conspired with
Gudanowski and his other “clients” to defraud the govern-
ment by obtaining temporary green card stamps through
bribes to an INS officer and false statements on green
card applications. Prior to trial, the government sub-
mitted a written Santiago3 proffer, which set forth the facts
supporting the admission of relevant portions of the tape
recorded conversations from 1999 to 2000 depicting
Wantuch’s involvement in Operation Golden Schemes,
pursuant to the Federal Rule of Evidence 801(d)(2)(E).
Wantuch filed no objections.
At trial, the aforementioned facts were introduced
through nine witnesses called by the government, includ-
ing Sienkiewicz, Robinson, Jurgita, and Gudanowski. The
3
Under United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978),
overruled on other grounds by Bourjaily v. United States, 483 U.S.
171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), the statements of
unindicted coconspirators are admissible as non-hearsay if
the government proves prior to trial that a conspiracy existed,
that the defendant and the declarant were members of the
conspiracy, and that the statements were made during the
course and in furtherance of the conspiracy. The admissibility
of the coconspirator statements is subject to the trial court’s
“later determination that the government proved these foun-
dational elements at trial.” United States v. Blanding, 53 F.3d
773, 777 (7th Cir. 1995).
No. 06-3681 9
government also successfully moved to admit into evi-
dence the audio and video taped conversations involving
Wantuch, recorded on March 17, 1999, May 19, 1999,
September 22, 1999, December 13, 1999, April 19, 2000,
September 9, 2000, and October 4, 2000.
Wantuch testified in his own defense. He denied any
wrongdoing, claiming that Sienkiewicz hired him to
work for GSGT as an interpreter and office helper, and
that Sienkiewicz told him that the INS wanted to sell
immigration benefits on the black market in order to raise
funds for the modernization of its computers for Y2K.
Wantuch denied he was committing a crime during the
March 17, 1999 and May 19, 1999 cigarette transactions,
claiming he was moving the cigarettes for a friend. He also
denied that he offered to get or sell Sienkiewicz guns or
other stolen merchandise. He was shown video footage
of the meetings at GSGT with his “clients” and Robinson,
and admitted that he instructed and encouraged his
clients to lie about having a United States citizen relative
as green card sponsors, and to lie about having received
their I-551 stamps at 10 West Jackson. However, Wantuch
claimed that he only told his clients to lie because
Sienkiewicz and Robinson told him to do so.
When asked about the payment of money on the
video between Wantuch, Robinson and Sienkiewicz,
Wantuch claimed that he was merely acting as a go-
between for his clients. He denied making payoffs to
Sienkiewicz, and said Sienkiewicz was actually paying
Wantuch, since he was on the payroll at the office. He
also admitted that he knew the proper location to obtain
a green card was 10 West Jackson, and not GSGT, as
he went through the application process and obtained a
legal green card in 1993 when he immigrated to the
10 No. 06-3681
United States. He also testified that he paid much less than
$16,000—the amount he charged Gudanowski—to legally
obtain his green card.
A jury convicted Wantuch on all four counts of the
indictment. Wantuch was sentenced to 63 months’ impris-
onment on each count, to be served concurrently. This
timely appeal followed.
II. Discussion
Wantuch raises four issues on appeal that we will
address: (1) whether the district court erred by allowing
Sienkiewicz and Robinson to testify as to their opinion
of Wantuch’s intent under Federal Rule of Evidence 701;
(2) whether the court erred in admitting testimony about
a confrontation between Gudanowski and Wantuch in
2003; (3) whether the court erred in admitting evidence of
the cigarette sales between Wantuch and Sienkiewicz; and
(4) whether the evidence of a conspiracy was sufficient to
warrant a Pinkerton instruction.4 We address each argu-
ment in turn.
A. Opinion Testimony
At trial, Sienkiewicz testified about Wantuch’s role in
the green card scheme, including Wantuch’s acquisition
of fourteen clients, and a total of $70,000 paid to Robinson
in exchange for the green cards. The jurors were presented
4
Wantuch makes other arguments pertaining to the ade-
quacy of the jury instructions. We have considered all of his
challenges and have found them to be without merit.
No. 06-3681 11
with audio and video recordings of all of the conversa-
tions between Wantuch and Sienkiewicz from March of
1999 to September of 2000. Near the end of his testimony,
the government asked:
Q: Mr. Sienkiewicz, at all times that you were dealing
with Wantuch, was he aware that paying [Robin-
son] those $5,000 in exchange for the green cards
was illegal?
Defense counsel objected, and after the court heard argu-
ments from both sides on whether to allow the opinion
testimony at a sidebar, the court overruled the objection
and Sienkiewicz answered:
A: I think we must be kidding here. This gentleman
knew all the time that everything that he was
doing was illegal. One does not buy a green card
on the street for money. Come on, let’s stop pre-
tending here. We are not little people, are we?
Robinson also testified about his dealings with Wantuch
and the clients that Wantuch brought into GSGT. The
government played the video recording from December 13,
1999, the day that Wantuch brought Jurgita into GSGT
for an interview. After the jury watched the video, the
government handed Robinson a transcript of the recording:
Q: I want to refer you to line 37, still on page 6. Did
Wantuch say “If somebody asked you?”
A: Yes.
Q: And in response to that, you said: “If anybody
asked you, because when you’re in our airports,
sometimes they ask you, you know, and you come
to the U.S. citizen’s line.”
A: Yes.
12 No. 06-3681
Q: What was your understanding of what Wantuch
was doing during that conversation?
A: He was saying that—telling her that she did have
a sister . . . that petitioned for her.
Defense counsel objected after Robinson answered,
stating “the words speak for themselves.” The court asked
the government to repeat the question, but the govern-
ment moved on to another line of questioning. Later, the
government asked Robinson:
Q: Some of the procedures in the interview that we
watched on that video were the same as some
of the procedures that are followed legitimately at
10 West Jackson, correct?
A: Yes they [were].
Q: Now, when you use the word “legitimate,” is it
your understanding that the brokers, specifically
Wantuch, understood that this was a legitimate
transaction?
A: No he did not.
Defense counsel failed to object to this testimony.
Wantuch argues that Sienkiewicz and Robinson’s testi-
mony as to Wantuch’s state of mind should have been
excluded because it was not rationally based on their
perception of Wantuch, and their testimony was neither
helpful to the jury nor necessary for the jury’s review of
the evidence, under Federal Rule of Evidence 701. He also
argues that the unfair prejudice of the testimony vastly
outweighed any probative value it had under Rule 403.
We have held that lay opinion testimony regarding
mental states is admissible under Rule 701. United States v.
No. 06-3681 13
Bogan, 267 F.3d 614, 619 (7th Cir. 2001); United States v.
Guzzino, 810 F.2d 687, 699 (7th Cir. 1987); Bohannon v.
Pegelow, 652 F.2d 729, 732 (7th Cir. 1981). However, there
are limits to its admissibility. Rule 701 provides:
If the witness is not testifying as an expert, the witness’
testimony in the form of opinions of inferences is
limited to those opinions or inferences which are
(a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of the wit-
ness’ testimony or the determination of a fact in issue.
See also Fed. R. Evid. 704(a) (“Testimony in the form of
an opinion or inference otherwise admissible is not objec-
tionable because it embraces an ultimate issue to be
decided by the trier of fact.”). The considerations outlined
in Rule 403 also apply—lay opinions may be excluded if
the opinion would be a waste of time or its probative value
is substantially outweighed by its prejudicial nature.
Bohannon, 652 F.2d at 732; Fed. R. Evid. 704 Advisory
Committee Note on 1972 Proposed Rules.
Rule 701(a)’s requirement that the opinion be rationally
based on the witness’s perception is “the familiar require-
ment of first-hand knowledge or observation.” Rule 701(a)
Advisory Committee Note; see also Fed. R. Evid. 602 (“A
witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness
has personal knowledge of the matter.”). Rule 701(b)
assures against the admission of opinions which would
merely tell the jury what result to reach. Fed. R. Evid. 704
Advisory Committee Note on 1972 Proposed Rules. Lay
opinion testimony is admissible only to help the jury or
the court to understand the facts about which the witness
is testifying. United States v. Conn, 297 F.3d 548, 554
(7th Cir. 2002).
14 No. 06-3681
A decision to admit lay opinion testimony is com-
mitted to the district court’s discretion and is reversed
only for abuse of that discretion. United States v. Espino,
32 F.3d 253, 257 (7th Cir. 1994); United States v. Stormer,
938 F.2d 759, 761 (7th Cir. 1991). A determination made
by a trial judge regarding the admissibility of evidence is
treated with great deference because of the trial judge’s
first hand exposure to the witnesses and the evidence as a
whole, and because of her familiarity with the case and
ability to gauge the likely impact of the evidence in the
context to the entire proceeding. Bogan, 267 F.3d at 619.
Further, even erroneous evidentiary rulings will not be
overturned if any resulting error was harmless. United
States v. Chavis, 429 F.3d 662, 667 (7th Cir. 2005). With those
standards in mind, we turn first to Wantuch’s argument
that the admission of Sienkiewicz’s testimony violated
Rule 701.
Because Wantuch properly objected to Sienkiewicz’s
testimony, we review the portion of his testimony for an
abuse of discretion. The evidence sufficiently demonstrated
that Sienkiewicz’s opinion testimony was rationally
based on his perception. Prior to Sienkiewicz’s comment
that Wantuch was aware his conduct was “illegal,” the
government elicited testimony from Sienkiewicz about his
interactions with Wantuch from March of 1999 to Septem-
ber of 2000. Sienkiewicz was deeply involved in the green
card scheme; he was Wantuch’s contact every step of the
way. Sienkiewicz testified about his initial meetings
with Wantuch in March and May of 1999, in which
Wantuch sold Sienkiewicz contraband cigarettes, and
discussed details of the scheme to obtain green cards in
exchange for paying bribes to an INS official. Sienkiewicz
was present at the meetings with Robinson, Wantuch, and
No. 06-3681 15
Wantuch’s clients and observed Wantuch coach his clients
to make false statements on the INS forms and to make
further false statements if they were ever questioned by
INS officials. Sienkiewicz also observed Wantuch accept
money from his clients, hand over payments to Robinson
in exchange for stamping his clients’ passports, and share
the profits with Sienkiewicz. Therefore we find that
Sienkiewicz’s opinion testimony about Wantuch’s knowl-
edge of the illegality of his actions was rationally based on
his perception. See United States v. Rea, 958 F.2d 1206,
1216 (2d Cir. 1992) (“Lay opinion testimony regarding a
defendant’s knowledge will, in most cases, only satisfy
the rationally-based requirement if the witness has per-
sonal knowledge of one or more objective factual bases
from which it is possible to infer with some confidence
that a person knows a given fact . . . includ[ing] what the
person was told directly, what he was in a position to see
or hear, what statements he himself made to others,
conduct in which he engaged, and what his background
and experience were.”) (internal quotations omitted).
But this testimony was unhelpful to the jury under
Rule 701(b). Attempts to introduce meaningless asser-
tions which amount to little more than choosing up sides
require exclusion for lack of helpfulness by Rule 701.
Rule 701(b) Advisory Committee Note on 1972 Proposed
Rules. The question posed to Sienkiewicz to opine as to
Wantuch’s knowledge of whether his actions were “legal,”
demanded a conclusion as to the legality of Wantuch’s
conduct, which is unhelpful to the jury under Rule 701. See
United States v. Espino, 32 F.3d 253, 257 (7th Cir. 1994)
(finding that the question posed to a defendant, “you’re
admitting to a conspiracy, aren’t you,” was unhelpful
testimony under Rule 701); United States v. Baskes, 649
16 No. 06-3681
F.2d 471, 478 (7th Cir. 1980) (when a witness is asked
whether the conduct in issue was “unlawful” or “willful”
or whether the defendants “conspired,” terms that demand
an understanding of the nature and scope of the criminal
law, the trial court may properly conclude that any re-
sponse would not be helpful to the trier of fact under
Rule 701(b)).
We note that the question posed by the government was
unnecessary, in light of all of the evidence against Wantuch
that the government presented through Sienkiewicz’s
testimony. The jury was just as capable as Sienkiewicz
of inferring that Wantuch knew he was committing a
crime, without Sienkiewicz opining as to whether Wantuch
was aware that his conduct was illegal. See Rea, 958 F.2d
at 1216.
Nevertheless, reversal, the relief which Wantuch seeks,
is not required where the error is harmless. Fed. R. Crim.
Pro. 52(a). We see no reasonable possibility that
Sienkiewicz’s statement had a substantial and injurious
effect or influence on the jury’s verdict, United States v.
Douglas, 408 F.3d 922, 929 (7th Cir. 2005), in light of the
overwhelming evidence presented against Wantuch,
including video and audio tapes of seven different en-
counters in which Wantuch could be seen or heard partici-
pating in illegal activity, interlocking testimony of nine
government witnesses, and Wantuch’s own admissions.
When viewed in the context of the entire trial and the
totality of the evidence, the jury heard substantial evidence
to support the government’s theory at trial, and although
the district court erred in admitting Sienkiewicz’s state-
ment, the error was harmless.
Wantuch makes the same arguments under Rule 701
regarding the admission of Robinson’s testimony. Because
No. 06-3681 17
Wantuch failed to contemporaneously object (or state
specific grounds for his objections) to any of Robinson’s
testimony of which he now complains, we review Robin-
son’s testimony for plain error. See Fed. R. Evid. 103(a)(1);
United States v. Swan, 486 F.3d 260, 263 (7th Cir. 2007).
Under plain error review, an error must be “clear or
obvious” and “affect substantial rights” in order to warrant
reversing the district court’s decision to admit the evi-
dence. United States v. Schalk, 515 F.3d 768, 776 (7th Cir.
2008) (citation omitted). We will not correct any error
unless it “seriously affect[s] the fairness, integrity, or public
reputation of the judicial proceedings.” Id. at 777 (citations
omitted).
The district court did not plainly err in admitting
the testimony of Robinson. In short, under Rule 701,
Robinson had sufficient first-hand knowledge of the
conversation with Wantuch and Jurgita, that was based on
his direct participation, as well as his perception and
observation of Wantuch. The jurors were presented with
the entire video-recorded conversation between Robinson
and Wantuch on December 13, 1999. Robinson specifically
told Wantuch’s clients to lie on the INS forms, and he
observed Wantuch assist him in coaching his clients to
make false representations. See United States v. Estrada, 39
F.3d 772, 773 (7th Cir. 1994) (per curiam) (holding that a
participant in a conversation may testify as to his under-
standing of the conversation to satisfy Rule 701(a)’s
requirement that the testimony be rationally based on the
witness’s perceptions); United States v. Lizardo, 445 F.3d 73,
83 (1st Cir. 2006) (holding that a witness may testify
about his subjective interpretation of a conversation
in which he is participating as long as his opinion is
rationally based on his perception and is helpful either to
18 No. 06-3681
an understanding of his testimony or to the determina-
tion of a fact in issue).
Unlike Sienkiewicz’s testimony, Robinson did not
comment on the illegality of Wantuch’s actions. He merely
testified to what he understood Wantuch’s comments to
mean—and repeated what Wantuch told Jurgita—that
if she was ever questioned by the INS, she was to say
that she had a sister who was a legal U.S. citizen who
petitioned for her. Such testimony also could prove helpful
to a jury to interpret what Wantuch and Robinson were
communicating to Jurgita during the meeting. Further-
more, even if Wantuch was correct, the overwhelming
weight of the case against him makes it clear that these
alleged errors did not affect the outcome of the proceedings
such that we should consider invoking our discretion
under Fed. R. Crim. Pro. 52(a). United States v. Jumah, 493
F.3d 868, 875 (7th Cir. 2007) (citing United States v. Olano,
507 U.S. 725, 732, 113 S.Ct. 1170, 123 L.Ed.2d 508 (1993)).
B. Gudanowski’s Confrontation with Wantuch in 2003
Near the end of his testimony, Gudanowski stated that
in 2003, after he received a deportation letter from the
INS, he confronted Wantuch at a local tavern. The follow-
ing colloquy took place between the government and
Gudanowski:
Q: What happened once you got to [the tavern]?
A: Well, when I got there, he was sitting there and he
was kind of very thin, unbalanced, and when
I saw him, I was—basically, all my anger went
away. And I asked him why he did this to me, he
knew that it was illegal, and, you know, he was
No. 06-3681 19
like on strong medication or something, and then
he even offered me his own green card.
Q: Now when you approached Mr. Wantuch and
told him this, including why did he do this,
what did he say in response?
...
A: He didn’t basically give me a sensible answer.
He was basically sitting there kind of looking
guilty, and that was about it.
Defense counsel moved to strike the term “guilty,” and the
district court sustained the motion and instructed the
jury accordingly.
Wantuch sees error in the admission of Gudanowski’s
description of his confrontation with Wantuch in 2003,
which he characterizes as post-conspiracy statements
that were irrelevant and prejudicial. Wantuch failed to
object to the admission of this evidence at trial, therefore
we review for plain error. United States v. Powers, 75
F.3d 335, 338 (7th Cir. 1996).
Because Wantuch has presented no evidence to con-
vince us otherwise, we presume that the jury limited its
consideration of the testimony in accordance with the
court’s instruction, and disregarded Gudanowski’s use
of the term “guilty.” United States v. Mallett, 496 F.3d
798, 802 (7th Cir. 2007). Errors that are the subject of
corrective instructions to the jury are presumed harmless.
United States v. Moore, 115 F.3d 1348, 1358 (7th Cir. 1998);
see also Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S.Ct. 3102,
97 L.Ed.2d 618 (1987) (“We normally presume that a
jury will follow an instruction to disregard inadmissible
evidence inadvertently presented to it, unless there is an
20 No. 06-3681
overwhelming probability that the jury will be unable to
follow the court’s instructions, and a strong likelihood
that the effect of the evidence would be devastating to
the defendant.”).5
C. Introduction of Evidence of Cigarette Sales
Wantuch argues that the court erred in admitting (1) the
evidence of the contraband cigarette sales between
Wantuch and Sienkiewicz, and (2) the related conversa-
tions about other stolen merchandise. In Wantuch’s view,
the evidence does not prove an element of any of the
charged offenses, and thus is not inextricably inter-
twined with the charged crimes.
5
Wantuch fails to develop his argument on the other aspects
of Gudanowski’s testimony, nor does he cite any substantive
legal authority to support his contention. It is not the obliga-
tion of this court to research and construct the legal arguments
open to parties, especially when they are represented by coun-
sel. United States v. McLee, 436 F.3d 751, 760 (7th Cir. 2006)
(internal quotations omitted). Thus his argument is waived. See
Perez v. Illinois, 488 F.3d 773, 776-77 (7th Cir. 2007); United
States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“We
repeatedly have made clear that perfunctory and undeveloped
arguments . . . are waived [on appeal].”). In any event, we
find the admission, if error, to be harmless, failing to have “a
substantial and injurious effect or influence on the jury’s
verdict.” United States v. Thomas, 86 F.3d 647, 655 (7th Cir. 1996).
The government presented overwhelming evidence of
Wantuch’s guilt on the conspiracy and bribery charges, and
did not attempt to use this portion of Gudanowski’s testimony
in its closing argument. Thus, we are convinced that any
erroneous admission of this evidence did not affect the jury’s
ultimate decision.
No. 06-3681 21
Prior to trial, the government filed a motion in limine to
introduce (1) evidence of Wantuch’s sale of contraband
cigarettes to Sienkiewicz, and (2) conversations between
Sienkiewicz and Wantuch in May of 1999, in which
Wantuch offered to sell Sienkiewicz other stolen mer-
chandise. Wantuch filed a written objection to the introduc-
tion of the evidence of the cigarette sales. During a
pretrial hearing, the district court held that evidence of
the cigarette sales was admissible because it was “intrinsi-
cally connected with the case” (or intricately related),
and therefore the court did not have to “deal with [the
admissibility of the evidence] under Rule 404(b).” The
government then asked the court for a ruling on the
admissibility of the other conversations between Wantuch
and Sienkiewicz about the stolen liquor and cars. The
court gave Wantuch a few days to raise any objections,
but Wantuch raised none. On the first day of trial, the
government requested a ruling on the admissibility of
the conversations related to the stolen merchandise. The
court stated to Wantuch, “It doesn’t sound like there’s an
issue,” to which Wantuch responded, “No.” Wantuch
subsequently failed to raise any objections during trial.
First, we address Wantuch’s argument regarding the
admission of the evidence of other stolen merchandise. The
district court gave Wantuch a number of days to file any
objections, which Wantuch failed to do. The court also
directed a question to Wantuch, giving him another
chance to object to the evidence, but Wantuch affirmatively
stated on the record that he had no objection to the ad-
mission of this evidence of other stolen merchandise.
Therefore we find that Wantuch waived his objections to
this evidence, and we decline to review the district court’s
decision. United States v. Murry, 395 F.3d 712, 718-19 (7th
Cir. 2005).
22 No. 06-3681
Next, we turn to the admission of the evidence of
the contraband cigarette sales. The district court ad-
mitted this evidence solely under the theory that it was
intricately related to the conspiracy. This court has a well-
established line of precedent that allows evidence of
uncharged acts to be introduced at trial if the evidence is
“intricately related” to the acts charged in the indictment.
Bogan, 267 F.3d at 621. We review the district court’s
decision to admit the evidence of the contraband cigarette
sales under the intricately related doctrine for an abuse
of discretion. United States v. Strong, 485 F.3d 985, 989 (7th
Cir. 2007). Under this doctrine, whether instances of
uncharged conduct are “intricately-related” (or “inextrica-
bly intertwined”) to the case at hand depends on whether
“they complete the story of the crime on trial; their
absence would create a chronological or conceptual void
in the story of the crime; or they are so blended or con-
nected that they incidentally involve, explain the circum-
stances surrounding, or tend to prove any element of,
the charged crime.” United States v. Gougis, 432 F.3d
735, 742 (7th Cir. 2005) (citation omitted). The admissibility
of such evidence is limited only by the balancing test set
forth in Rule 403 and does not implicate the character/
propensity prohibition of Rule 404(b). United States v.
Griffin, 493 F.3d 856, 867 (7th Cir. 2007); McLee, 436 F.3d
at 760; United States v. Ramirez, 45 F.3d 1096, 1102-03 (7th
Cir. 1995).
Wantuch contends that the discussion of illegal sales
of cigarettes has nothing to do with immigration docu-
ments or elements of the charged offenses; however,
uncharged criminal activity need not be identical to the
charged crime in order to be admitted under the intricately
related doctrine. Gougis, 432 F.3d at 743. Here, the evid-
No. 06-3681 23
ence of the sale of contraband cigarettes showed how
Wantuch’s relationship with Sienkiewicz “began, its basis
and structure, and how the relationship blossomed into
the charged conspiracy.” United States v. Zarnes, 33 F.3d
1454, 1469 (7th Cir. 1994). It outlined how the relationship
of trust and cooperation between Sienkiewicz and
Wantuch was born, developed and eventually led to their
respective roles in the conspiracy. See United States v.
Spaeni, 60 F.3d 313, 316 (7th Cir. 1995); see also United States
v. Richmond, 222 F.3d 414, 417 (7th Cir. 2000) (holding that
evidence was intricately related because it explained the
circumstances surrounding the relationships of the
people involved in the conspiracy). Further, the evidence
showed that Wantuch was a willing participant in the
sale of illegal goods (and eventually the green card
scheme), demonstrating that he was ready to pursue any
avenue in order to make money by offering to provide
Sienkiewicz with any merchandise that he required.
Wantuch argues that any probative value of the evidence
was substantially outweighed by the danger of unfair
prejudice under Fed. R. Evid. 403. The district court’s
admission of evidence under Rule 403 is entitled to
special deference. “Only in an extreme case are appellate
judges competent to second-guess the judgment of the
person on the spot, the trial judge.” Strong, 485 F.3d at
991 (citation omitted). Evidence is unfairly prejudicial
only if it will induce the jury to decide the case on an
improper basis, commonly an emotional one, rather
than on the evidence presented. Id. The evidence was
probative to counter Wantuch’s defense that he was
simply hired by Sienkiewicz to work in the office at GSGT
and help the INS by new computers for the Y2K, and
that he did not commit a crime when he sold the contra-
24 No. 06-3681
band to Sienkiewicz. Additionally, to minimize the risk of
unfair prejudice, the court ensured that the jury used the
evidence only for a legitimate purpose—Wantuch’s
intent—when it gave a limiting instruction in the final
jury instructions. See United States v. Whitlow, 381 F.3d 679,
686 (7th Cir. 2004). The evidence was properly admitted.
D. The Pinkerton Instruction
Wantuch further argues that the district court erred in
giving the Pinkerton6 instruction, because the evidence at
trial was insufficient to support the conspiracy count.
During the jury instruction conference, the government
proposed the pattern Pinkerton instruction:
A conspirator is responsible for offenses committed
by his fellow conspirators if he was a member of
the conspiracy when the offenses were committed
and if the offenses were committed in furtherance of
and as a foreseeable consequence of the conspiracy.
Therefore, if you find the defendant guilty of the
conspiracy charged in Count 1 of the indictment and
if you find beyond a reasonable doubt that while he
was a member of the conspiracy, his fellow conspira-
tors committed the offenses in Count Two, Three, and
Four in furtherance of or as a reasonable consequence
of that conspiracy, then you should also find the
defendant guilty of Counts Two, Three, and Four.
6
Under Pinkerton, a coconspirator may be held criminally liable
for the foreseeable overt acts of others in furtherance of a
conspiracy. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180,
90 L.Ed. 1489 (1946); United States v. Frazier, 213 F.3d 409,
416 (7th Cir. 2000).
No. 06-3681 25
Because Wantuch makes this objection for the first time
on appeal, we review the argument for plain error. United
States v. Matthews, 505 F.3d 698, 709 (7th Cir. 2007); Fed. R.
Crim. P. 52(b). “Defendants challenging the quantum of
evidence supporting a jury verdict face a daunting task.”
United States v. Wortman, 488 F.3d 752, 754 (7th Cir. 2007).
When we review the sufficiency of the evidence, we ask
only if, after viewing all of the evidence in a light most
favorable to the government, and drawing all reasonable
inferences therefrom, a rational trier of fact could not
have found the essential elements of the crime, beyond
a reasonable doubt. United States v. Moore, 446 F.3d 671,
677 (7th Cir. 2006).
To sustain a conviction for conspiracy under 18 U.S.C.
§ 371, the government must prove: (1) an agreement to
commit an offense against the United States; (2) an overt
act in furtherance of the conspiracy; and (3) knowledge
of the conspiratorial purpose. United States v. Soy, 454
F.3d 766, 768 (7th Cir. 2006). Wantuch argues that the
evidence failed to show, beyond a reasonable doubt, any
agreement between Wantuch and Gudanowski. The
evidence proves otherwise. The nub of a conspiracy is
an agreement, and the government can prove the agree-
ment by showing “an understanding—explicit or implicit—
among coconspirators to work together to commit the
offense.” United States v. Bailey, 510 F.3d 726, 735 (7th
Cir. 2007). A jury is not limited to direct evidence and
may find an agreement to conspire based upon circum-
stantial evidence and reasonable inferences drawn from
the relationship of the parties, their overt acts, and the
totality of their conduct. United States v. Macedo, 406 F.3d
778, 791-92 (7th Cir. 2005) (citation omitted). The record
strongly supports the notion that Wantuch entered into
26 No. 06-3681
an agreement with Gudanowski to defraud the United
States by any one of the substantive counts in the indict-
ment. From the moment Gudanowski joined forces
with Wantuch, he had exhausted his legal means of
obtaining a green card, and his only hope for a speedy
solution was to enlist Wantuch’s services. Wantuch’s
actions as a broker constituted a continuing relationship
with Gudanowski, based on the common purpose and
agreement—to obtain green cards by paying bribes to an
INS official. Gudanowski agreed to pay, and Wantuch
agreed to facilitate appointments to undergo medical
exams and obtain fingerprints, and to arrange meetings at
GSGT with Robinson. The jury watched on video as
Wantuch assisted Robinson in instructing Gudanowski to
make false representations on the INS forms, such as
claiming to have a relative who would sponsor him, and
that if he was ever questioned, his interview took place
at 10 West Jackson, and not at GSGT. On the stand,
Gudanowski admitted that he lied on his application and
that he knew GSGT was not an INS facility. Wantuch
argues that Gudanowski’s testimony proved that he
lacked criminal intent, but credibility determinations are
for the jury. United States v. Williams, 298 F.3d 688, 692 (7th
Cir. 2002) (coconspirator’s testimony sufficient to prove
existence of a conspiracy). The jury was entitled to be-
lieve that Gudanowski was in cahoots with Wantuch to
illegally obtain a green card, therefore we find that the
evidence was sufficient to find that Wantuch participated
in the charged conspiracy.
A Pinkerton instruction informs the jury that if they
initially determine beyond a reasonable doubt that a
conspiracy existed, and the defendant was a member of
the conspiracy, then they may find him responsible for
offenses committed by other coconspirators in the fur-
No. 06-3681 27
therance of the conspiracy. The evidence presented in this
case sufficiently establishes Wantuch’s participation in
the conspiracy, therefore it was appropriate for the dis-
trict court to give the jury a Pinkerton instruction.
III. Conclusion
For the aforementioned reasons, the judgments of the
district court are affirmed and the verdict against Wantuch
stands.
USCA-02-C-0072—5-1-08