United States v. Carter, Morris ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2412
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MORRIS CARTER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 04 CR 104—Rudy Lozano, Judge.
____________
ARGUED JANUARY 25, 2008—DECIDED JUNE 19, 2008
____________
Before FLAUM, ROVNER, and SYKES, Circuit Judges.
FLAUM, Circuit Judge. Defendant Morris Carter, who
served as the elected Recorder for Lake County, Indi-
ana, was convicted for three counts of extortion in viola-
tion of the Hobbs Act, 18 U.S.C. § 1951(a), and sentenced
to 51 months’ incarceration. Carter now raises three
issues before this Court on appeal. First, Carter chal-
lenges the sufficiency of the evidence for his convic-
tions, claiming that the government failed to prove that
his actions affected interstate commerce or that he acted
under color of right. Carter’s second claim is that the
Government engaged in an improper line of questioning
2 No. 06-2412
during his cross-examination. For the reasons discussed
below, we affirm the district court’s judgments on these
two issues, but remand for resentencing based on
Carter’s final claim that the district court misapplied
the proper post-Booker standards for sentencing.
I. Background
A. Defendant’s Criminal Conduct
Carter was elected to two consecutive terms as the
Lake County Recorder, with his second term concluding
in December 2004. The acts of extortion for which Carter
was convicted all occurred during the summer of his last
year in this office. Central to the Government’s case was
the assistance it received from Peter Livas, an FBI infor-
mant. Livas owned three Indiana-based Subchapter
S corporations—GIN Development, B & L Construction,
and API Construction, Inc.—all of which were real
estate rehab and development companies. Livas first
came into contact with Carter through a mutual acquain-
tance, Javier Miranda, a subcontractor. During a con-
versation between Livas and Miranda in 2004, Livas told
Miranda that he was trying to refinance his personal
residence in order to free up more money for him to
purchase properties. When Livas explained that this
process had stalled due to a lien on the house, Miranda
indicated that he would be able to help him with that.
Miranda then set up a lunch meeting with Carter and
Livas. During this meeting, Livas discussed the lien on
his house with Carter, as well as his interest in buying
vacant land in Gary, Indiana. The three individuals also
discussed becoming partners based on what they each
could do for each other, with Carter having an inside
No. 06-2412 3
connection to foreclosure sales, Miranda and Livas
having rehab expertise, and Livas having the funds to
purchase properties. Carter, however, testified at trial
that he told Livas and Miranda that due to his position as
Lake County Recorder, he could only be brought in as a
consultant on retainer. After this lunch meeting, Livas
contacted the FBI about the matter. Livas agreed to cooper-
ate with the FBI and for the rest of the investigation, he
wore a wire or a video recorder during all face-to-face
communications with Carter.
The first audio recorded meeting between Carter,
Livas, and Miranda occurred on June 2, 2004 in Gary,
Indiana, where Carter had arranged for Livas to look at
some properties. During this meeting, the three dis-
cussed two things Livas sought: a contractor’s license for
building in unincorporated areas of Lake County, and
lists of homes in foreclosure that would be placed on
sheriff’s tax and commissioner’s sales. With respect to
the lists of homes, Carter maintained that he could get
“the first look at the list” since he was “taking care of” a
woman working in the department that had access to the
lists. Livas was later told that these lists would cost $1,000.
Carter, Livas, and Miranda next met on June 11, 2004.
This conversation was videotaped by the Government.
At this meeting, Livas paid Carter $1,000, which Livas
testified at trial was for the property lists, although Carter
maintained that this money was for work he had already
done as part of their consulting relationship. Carter then
supplied Livas with the tax and commissioner’s lists.
Carter explained to Livas that he had access to the list
because “[t]he girl who’s got the list is a personal friend
of mine,” and when told by Livas to “treat her nice,”
Carter stated that “what I do is, I always kick these people
4 No. 06-2412
out . . . what they ask for.” Although at trial, Carter
claimed that these lists were publicly available at the
time, at the June 11 meeting, Carter told Livas that
“[n]obody has this list.” Additionally, Livas later told FBI
Agent Bradley Showalter, who testified at trial, that he
gave the lists to Livas before they were made public,
and that his connection with the woman in the Auditor’s
Office who provided him with the lists stemmed from
his work resolving a conflict between the Auditor’s
Office and the Recorder’s Office.
The other matter discussed at the June 11 meeting
was the county contractor’s license Livas sought, the
receipt of which partially depended upon passing a writ-
ten test. Carter instructed Livas to report to Carter’s office
on June 16, 2004, where Carter would “hook up” Livas
with a “guy,” who Livas later found out was Jan
Donald Allison, the person who administered the test
and served as the Assistant Lake County Building Ad-
ministrator. Carter instructed Livas not to discuss money
with the “guy,” but instructed Livas to bring $500 to
Carter’s office at the June 16 meeting.
The June 16 meeting at Carter’s office was also video-
taped. Once both Miranda and Livas had arrived, Carter
started the meeting by warning them not to use his
name when calling him, and pointed out a recent newspa-
per article discussing criminal charges related to tax sales
in Lake County. Carter made clear that “things have to be
done a certain way” because he “don’t want nobody to
get the wrong impression” and “ain’t trying to go to jail.”
The three then turned to discussing Carter’s contractor’s
license. With respect to the $500 Carter was charging
Livas for the license (the license itself only cost $150),
Livas explained that he would have the money after he
No. 06-2412 5
got paid for one of his rehabbing projects. In response,
Carter instructed Livas to pay him by giving the money
to Miranda, who would then pass it along to Carter. Carter
then called Allison and sent Livas and Miranda upstairs
to meet with him, instructing Livas not to mention money
with Allison. Carter had told Allison that Livas was a
“friend” and asked if Allison could “help” Livas get a
contractor’s license. During the meeting with Allison,
Livas received a license application, which he later com-
pleted on behalf of B & L Construction and submitted
along with a $50 application fee drawn from B & L’s
bank account.
On June 24, a hidden camera captured Livas paying
Miranda the $500 for the contractor’s license, which
Miranda then passed along in full to Carter. Approximately
one month later, on July 23, Livas took the contractor’s
license exam. Livas intentionally failed the exam and
Allison, when grading it, filled out a new examination
with a passing score. Later that day, Allison went to
Carter’s office to tell Carter that Livas had passed the
test. Carter later sent Allison a thank you card which
included $100 in cash.
Less than a week after taking the contractor’s exam, on
July 28, Carter and Livas had a videotaped discussion
regarding the lien on Livas’s home. Carter conceded at
trial that he had asked the Recorder’s Office in-house
counsel to research Livas’s lien (although the attorney
never knew Carter was doing this for money), since the
Recorder’s Office was already dealing with a flurry of
similar cases due to the refinancing craze at the time.
Based on this research, Livas informed Carter at their
meeting that the lien had expired and all that was re-
quired was a purge of lien document that would reflect
6 No. 06-2412
its expiration. The two then agreed that Livas would
stop by Carter’s office the next day to pick up the Purge
of Lien Notice, and the meeting ended with Livas paying
Carter $400 in cash. The next day, Livas picked up and
signed the Purge of Lien Notice that Carter had prepared.
Carter and Livas then took the document to a woman at
the office who filed the Purge of Lien Notice. Carter told
Livas that he would take care of the $17 filing fee, and
Livas received a receipt stating that the fee had been paid.
The Purge of Lien Notice did not actually purge the
lien, however, but instead only provided notice that it
had apparently expired. When Livas later hired an attor-
ney to validly purge the lien, it was discovered that the
lien had never been valid to begin with.
B. Trial
On December 1, 2004, Carter was indicted on three
counts for violations of the Hobbs Act, 18 U.S.C. § 1951(a),
and aiding and abetting under 18 U.S.C. § 2. The first
count charged Carter with extorting $400 from Livas,
under color of right, for purging the lien. Count 2 was
against both Carter and Allison, charging them with
extorting $500 in exchange for them, under color of right,
providing Livas with a contractor’s license. The final count
charged Carter with extorting $1,000 in exchange for
property lists that Carter held out as being unavailable
to the general public.
Allison pled guilty to Count 2 in the indictment on March
9, 2005, and as part of his plea agreement, agreed to
cooperate with the Government in its case against
Carter. Allison detailed his and Carter’s involvement in
procuring Livas’s license to the FBI after Allison found out
No. 06-2412 7
from the FBI that Carter, unbeknownst to him, had re-
ceived $500 from Livas for the license.
Carter’s three-day jury trial went from January 17-19,
2006. Livas testified against Carter, with his testimony
interspersed with presentations to the jury of the video-
taped conversations between him and Carter. Miranda
and Allison also were called to testify by the Govern-
ment, as was the Government case agent, Agent Bradley
Bookwalter, and Carolyn Pollard, the Chief Deputy
Recorder for Lake County, who testified to certifying
the Purge of Lien Notice. In order to establish that
Carter’s extortion actions affected interstate commerce,
as is required by the Hobbs Act, the Government also
called Donald Cook, an employee at an Indiana paint
store, who testified that the store’s paints were ordered
from Ohio and that Livas, as a contractor, had main-
tained an account at the paint store for over three years.
Carter testified in his own defense, arguing that he
was working in a consulting capacity, and that the
three payments Carter had received—for $1,000, $500,
and $400—were nothing more than payments towards
an agreed to $2,000 consulting retainer fee. During the
Government’s cross-examination of Carter, he was asked
about the credibility of the Government’s witnesses. This
began when the Government pressed Carter on his
claim that the $500 was not for the contractor’s license,
but was instead part of a $2,000 consulting retainer. When
the Government inquired as to whether Carter remem-
bered that Livas had testified to the Government’s ver-
sion of events, Carter responded, “Yes, he told a lie.” This
then prompted the Government to ask, “Pete [Livas]’s
lying, right?” to which Carter replied, “Absolutely.” The
same question and response followed with respect to
8 No. 06-2412
Allison and Miranda. Questioning on this issue con-
tinued, with Carter stating when asked that he didn’t
know Don Cook, the paint store employee, enough to
know whether he was lying, but opined that all the Gov-
ernment witnesses had an incentive to lie. Carter offered
that he was “speaking the truth, because my life is on the
line here,” and then, when prompted by the Govern-
ment, again stated “absolutely,” that Agent Bookwalter
had lied. Finally, when the Government began inquiring
whether Carolyn Pollard, the Lake County Recorder’s
Office employee, had lied, Defense counsel objected to
these credibility questions. The district court overruled
the objection, but the Government at that point moved
on to another line of questioning.
The issue of witness credibility came up again later
in cross-examination. When the Government asked
Carter whether he remembered Miranda testifying that
morning on the stand that Livas “was paying $400 to get a
lien removed,” Carter replied, “Yes, he told a lie this
morning.” Then, when the Government was concluding
its questioning into the $400 payment, the Government
asked Carter about his position on the matter, stating, “the
$400 that was paid had nothing to do with the lien . . . and
you were just trying to collect on your $2,000 retainer,
correct?” When Carter responded, “Every step of the
way,” the Government followed up by asking, “So Javier
[Miranda] and Pete [Livas] are both lying, correct?” Carter
replied, “You know they are.” The Government asked
Carter to reiterate his position that the Government
knew Miranda and Livas were lying, which Carter did,
all without objection by Defense counsel.
At the close of both the Government’s case in chief and
Defendant’s evidence, Defense counsel made a motion
No. 06-2412 9
for judgment of acquittal, which was denied by the dis-
trict court on both occasions. The case thus went to the
jury, with the Government proceeding solely on an at-
tempted extortion theory of the case. The jury was in-
structed that it was its role to determine the credibility
of the witnesses, and after deliberations, returned a
guilty verdict on all three counts.
C. Sentencing
A sentencing hearing was held on May 8, 2006. The
Presentence Investigation Report (“PSR”) calculated a
Guidelines range sentence of 51-63 months, based in part
upon a two-level enhancement for being an organizer,
leader, manager, or supervisor of less than five people
under U.S.S.G. § 3B1.1(c). Carter objected to this enhance-
ment, but the district court found that the evidence
showed Carter was a leader in the conduct.
When the time came for sentencing, Defense counsel
requested that Carter be given a below-Guidelines sen-
tence. Defense counsel first argued that the district court
should consider the fact that not all of Carter’s interac-
tions with Livas involved illegal activity or his connec-
tion to the Lake County Recorder’s Office. Counsel then
requested a below-Guidelines sentence based on Carter’s
long history of public service in the Recorder’s Office
prior to these charges. The district court inquired as to
whether public service had ever been utilized as a valid
grounds for departure. The court then went on to state
that it did not “have a problem with the departure,” but
in light of apparent pressure from Congress regarding
adherence to the Guidelines, was unwilling to do so
without some authority. Defense counsel conceded that
10 No. 06-2412
he had not found any case allowing this as a grounds for
departure, but continued pressing the point, ultimately
urging the court to award a sentence of 41 months,
which would have been the Guideline minimum range
if the two-point enhancement for being a leader had not
been included.
After Carter himself made a statement, the district
court explained its reasoning behind the sentence. The
court noted that it had spent a lot of time on the case,
including independent research into whether a grounds
for departure existed for service in public office. The
district court then went on to say that it had looked at
the Guidelines and found them “to be fair and reason-
able.” The court also discussed the need to deter public
corruption, along with Carter’s particular circumstances,
which included his family as well as his lack of remorse.
The court then sentenced Carter to 51 months, the low
end of the Guidelines range.
II. Analysis
Carter now appeals, bringing three issues before this
Court. He first appeals the district court’s denial of his
motion for judgment of acquittal, arguing that there
was insufficient evidence to find that his alleged con-
duct affected interstate commerce or was performed
under color of right. His second challenge concerns the
Government’s cross-examination of Carter with respect to
the credibility of other witnesses. Finally, Carter argues
that the district court failed to recognize the discretionary
role the Guidelines are to play at sentencing.
No. 06-2412 11
A. Sufficiency of the Evidence
Turning to the first issue appealed, we review the dis-
trict court’s denial of Carter’s motion for judgment of
acquittal de novo. United States v. Lee, 439 F.3d 381, 384 (7th
Cir. 2006). We examine the evidence in the light most
favorable to the Government to determine whether any
rational juror could have found the elements for a con-
viction under the Hobbs Act satisfied beyond a reason-
able doubt. United States v. Henningsen, 387 F.3d 585, 589
(7th Cir. 2004).
The Hobbs Act makes it a criminal offense to obstruct,
delay, or affect interstate commerce by actual or at-
tempted extortion. 18 U.S.C. § 1951(a). “Extortion” under
this Act is defined in part as “the obtaining of property
from another, with his consent, . . . under color of official
right.” 18 U.S.C. § 1951(b)(2). Carter contends that the
Government failed to provide sufficient evidence to
show that interstate commerce was affected or that the
extortion occurred under color of right.
While the Hobbs Act requires that the extortion must
have an effect on interstate commerce, this Court has
repeatedly held that only a de minimis effect must be
shown. United States v. Peterson, 236 F.3d 848, 851-52 (7th
Cir. 2001). Furthermore, because the Hobbs Act also
criminalizes attempted crimes, it is not required that
there be an actual effect on interstate commerce; a
showing that the conduct “had the potential to impact
commerce” is sufficient. United States v. Re, 401 F.3d 828,
835 (7th Cir. 2005).
The Government in this case sought to satisfy the inter-
state commerce requirement through the “depletion of
assets” theory. Under this method, it is sufficient for the
12 No. 06-2412
Government to show that a business that customarily
purchases items through interstate commerce had its assets
depleted through the acts of extortion, thus limiting its
ability to purchase goods in interstate commerce. Peterson,
236 F.3d at 854. There is no requirement that the business
directly purchase its items through interstate commerce,
rather, it is enough if the business purchases such items
through a wholesaler or other intermediary. United States
v. Hocking, 860 F.2d 769, 777 (7th Cir. 1988). Moreover, it
is of no consequence if the money used was the FBI’s,
rather than that of the business itself. Id. (citing United
States v. Rindone, 631 F.2d 491, 492-93 (7th Cir. 1980)).
The applicability of the depletion of assets theory in
this case largely turns on whether the Government pro-
vided sufficient evidence showing that Carter’s three
Indiana-based corporations purchased items through
interstate commerce. To establish this link, the Government
called Donald Cook as a witness, Store Manager of ICI
Paints in Hammond, Indiana. Cook testified that ICI
Paints purchases its paints from Huron, Ohio, and that
Livas was a “contractor customer” at ICI Paints, having
held an account at the store for more than three years.
Additionally, Livas himself testified that as part of his
work rehabbing homes, he purchased paint from ICI
Paints. Nonetheless, Carter argues on appeal that there
was no evidence presented to specifically show that
Livas’s businesses purchased the paint from ICI Paints,
rather than Livas purchasing the supplies in his individual
capacity. While this distinction was not specifically ad-
dressed in the trial testimony, given the standard of
review for sufficiency of the evidence, this is certainly a
reasonable inference for the jury to have drawn. Livas
testified that he purchased paint from ICI Paints for his
No. 06-2412 13
rehabbing projects, and Cook testified that he knew Livas
as a “contractor customer.” Given that Livas’s corporations
were all engaged in developing and rehabbing homes, a
jury could reasonably conclude that the paint purchases
were made for these businesses.
Carter additionally argues, however, that even if the
paint purchases were made by Livas’s corporations,
there was insufficient evidence for a jury to conclude
that the payments made to Carter would have depleted
Livas’s corporate assets, rather than his own personal
accounts. This argument also fails. Again, to the extent
this money was provided by the FBI, this is of no conse-
quence to the depletion of assets theory’s applicability.
See Rindone, 631 F.2d at 494. Turning specifically to the
$1,000 Livas paid for the property lists, given that it is
reasonable to infer that any property purchased through
these lists would then be developed by Livas’s com-
panies, it is also reasonable to infer that the $1,000, if not
provided by the FBI, would have come from Livas’s
corporate funds. Similarly, the contractor’s license Livas
received was for B & L Construction, one of Livas’s compa-
nies, and the $500 Livas paid to Carter for this license
came from his receipt of funds from a “side job.” Here too,
there was sufficient evidence for the jury to link the
payment to a depletion of Livas’s corporate assets.
With respect to the Purge of Lien Notice Livas paid
Carter $400 for, Carter argues that because the lien was
on Livas’s personal residence, the payment was not
associated with Livas’s corporations and thus no effect
on interstate commerce can be shown. In making this
argument, Carter relies heavily upon this Court’s opinion
in United States v. Mattson, 671 F.2d 1020 (7th Cir. 1982).
In that case, this Court held that the depletion of assets
14 No. 06-2412
theory was inapplicable, since the extortion payment
clearly came from the personal assets of the license seeker,
not the corporate assets of the licensee’s employer, when
it was the corporate assets that were also used to pur-
chase goods in interstate commerce. Id. at 1024-25. Here,
the jury could reasonably infer that the benefit of the
lien being purged on Livas’s personal residence would
ultimately benefit Livas’s business ventures, since he
hoped to refinance his residence in order to provide him
with more money to purchase properties. This link to
Livas’s businesses, however, is somewhat weaker than it
was for the lists and the license, as is the connection
between the $400 paid to Carter to have the lien purged
and Livas’s corporate assets.
Regardless, although this link between the $400 and
Livas’s corporate accounts may not be particularly
strong, it is not nonexistent as was the case in Mattson.
There, the evidence clearly showed that the money ex-
torted came from the licensee’s personal accounts and a
personal loan, and moreover, that his employee never
reimbursed him for the sum. Id. at 1022, 1024. Here,
however, there is no evidence in the record definitively
showing whether the $400, if it did not come from the
FBI, would have come from Livas’s personal or business
assets. Furthermore, because Livas’s companies were all
Subchapter S Corporations, it is more difficult to distin-
guish between Livas’s personal and corporate funds,
since, as Livas testified at trial, any earnings made by
the corporations were reported on Livas’s personal
income taxes, rather than separate corporate tax returns.
Although Carter points out that this mingling of funds
for tax purposes focuses on earnings, and not expenditures
as is considered for the depletion of assets analysis, this
No. 06-2412 15
link, given money’s fungibility, see United States v. Spano,
401 F.3d 837, 841 (7th Cir. 2005) (quoting Sabri v. United
States, 541 U.S. 600, 606 (2004)), and the lack of other
evidence conclusively showing that the $400 came from
Livas’s personal accounts, was relevant evidence for
the jury to consider.
Although the depletion of assets theory’s application to
these three counts depends upon the jury drawing infer-
ences from the evidence presented by the Government,
this is by no means fatal to satisfying this element of the
Hobbs Act. This Court has held that when challenging
the sufficiency of the evidence for the Hobbs Act’s inter-
state commerce requirement, the jury is entitled to make
inferences in the absence of direct evidence presented by
the Government. Re, 401 F.3d at 835-36. Accordingly,
although finding the interstate commerce element satis-
fied in this case required that the jury draw inferences in
the Government’s favor, particularly with respect to the
Purge of Lien Notice, these were inferences the jury
was entitled to make, and thus the evidence was suf-
ficient with respect to this element.
Carter also argues on appeal that there was insufficient
evidence to show that the alleged extortion for the property
lists or the Purge of Lien Notice occurred under color
of right. To satisfy this element, the Government needed
to “show that a public official has obtained a payment
to which he was not entitled, knowing that the payment
was made in return for official acts.” United States v.
Marshall, 75 F.3d 1097, 1112 (7th Cir. 1996) (quoting
Evans v. United States, 504 U.S. 255, 268 (1992)). Carter
argues that his conduct in providing the property lists
and drafting the Purge of Lien Notice did not implicate
his duties as Recorder of Deeds and thus cannot be said
16 No. 06-2412
to have occurred under color of right. See Ind. Code § 36-2-
11-1 et al. (containing duties and responsibilities of the
County Recorder). Specifically, Carter contends that his
position as Recorder of Deeds did not provide him
with any special access to the property lists, and that
with respect to the Purge of Lien Notice, there is no
formal prohibition on the Recorder of Deeds drafting a
document to be filed with the office, and moreover, that
there was no evidence presented that Livas actually
believed Carter could affect the lien.
Carter’s arguments, however, overlook the fact that “it
is immaterial whether the questioned transaction
involves a promise by the official to undertake acts unre-
lated to his duties[,] ‘[s]o long as the motivation for the
payment focuses on the recipient’s office.’ ” United States
v. Rindone, 631 F.2d 491, 495 (7th Cir. 1980) (quoting
United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974)).
Indeed, as Carter himself acknowledges, this Court has
held that “[de] jure ability to perform the promised act
need not be present; sufficient is ‘a reasonable belief
that the state system so operated that the power in fact
of the defendant’s office included the effective authority’
to fulfill the promise.” Id. (quoting United States v. Mazzei,
521 F.2d 639, 643 (3d Cir. 1975)). Moreover, the Hobbs
Act’s application is not dependent upon the success of
the public official in carrying out his promised acts.
Instead, the Act is violated when “one attempts to induce
a victim engaged in interstate commerce to part with
property,” and thus, the relevant inquiry here is “whether
[Livas] would have reasonably believed, at the time of the
extortionate act, that [Carter] could deliver the power of
his office for the victim’s benefit.” United States v. Nedza,
880 F.2d 896, 902 (7th Cir. 1989) (emphasis in original)
(internal citations and quotations omitted).
No. 06-2412 17
Accordingly, it is irrelevant whether providing the
property lists or the Purge of Lien Notice did in fact
fall under the Recorder of Deeds’s duties and responsibili-
ties, or whether Carter did in fact deliver what he prom-
ised. Instead, the question is whether sufficient evidence
was presented for the jury to conclude that Livas, when
he provided Carter with the payments, reasonably be-
lieved that Carter could deliver these items based on his
position as the Recorder of Deeds. The Government
made the requisite showing on this front at trial. With
respect to the property lists, when Carter and Livas met
on June 11 to exchange the money for the lists, Livas
specifically asked Carter how he got the list. Although it
was understood by Livas that the list did not come from
the Recorder’s Office, Carter’s response was that the
woman in possession of the list was “a personal friend of
mine.” While this alone would not necessarily be enough
to establish that it was Carter’s position as the Recorder
of Deeds that granted him access to the list, Carter
then went on to state that he treated her and others in the
Lake County offices “nice” because Carter “always kick[s]
these people out . . . what they ask for.” A reasonable
jury could infer that this latter comment caused Livas to
reasonably believe that Carter’s access to the list
stemmed from favors he performed for others in his
capacity as the Recorder of Deeds. Indeed, that this was
the thrust of Carter’s comment was confirmed by Agent
Bookwalter’s testimony, when he testified that Carter
had told him that his access to the lists began after he
had resolved an inter-office issue by arranging for the
Auditor’s Office to not have to pay Recorder Office fees.
There was also sufficient evidence for the jury to con-
clude that Livas reasonably believed when he paid $400
18 No. 06-2412
to Carter, that Carter could purge the lien on his property
due to his position as the Recorder of Deeds. Livas’s
original contact with Carter stemmed from Miranda’s
assurance that Carter could help Livas with this issue.
Additionally, on July 28, when Carter paid Livas the
$400, their conversation reflected that Carter had others
do research (at trial it was discovered this was the in-house
counsel for the Recorder’s Office) on what was needed
to purge the lien. That Livas could reasonably believe
Carter was providing this Purge of Lien Notice through
the power of his office as Recorder of Deeds was only
strengthened by the fact that Carter instructed Livas to
come to his office to finalize the lien issue, and that
once there, Carter arranged for the $17 filing fee to be
waived. Regardless of whether the Purge of Lien Notice
actually purged the lien, or whether the Recorder of
Deeds was in fact prohibited from drafting the document,
the jury could reasonably have concluded that Livas
reasonably believed that the Purge of Lien Notice was
provided due to Carter’s position as Recorder of Deeds.
B. Questioning Witness Credibility
The second issue appealed by Carter concerns the
Government’s line of questioning during his cross-exami-
nation, where he was asked whether each of the wit-
nesses called by the Government was lying. The
parties dispute the proper standard of review to be ap-
plied, with Carter claiming that this Court should
review the district court’s decision to allow this line of
questioning for an abuse of discretion, while the Govern-
ment claims Defense counsel failed to issue a timely
objection, thus subjecting the matter to plain error
review. United States v. Thomas, 453 F.3d 838, 844-45 (7th
No. 06-2412 19
Cir. 2006). It is unnecessary, however, for this Court to
determine whether the objection raised towards the end
of this line of questioning was timely, because even under
an abuse of discretion standard, any error committed
was harmless. See United States v. Owens, 424 F.3d 649,
653 (7th Cir. 2005) (harmless error analysis applies to
review for an abuse of discretion); United States v. Mansoori,
480 F.3d 514, 523 (7th Cir. 2006) (“The key distinction
between the harmless error and plain error analyses lies
in the assignment of the burden of persuasion—in plain
error cases, it is the defendant’s burden to prove that
the error was prejudicial, whereas in harmless error cases
it is the government’s burden to prove that the error was
not prejudicial.”) (emphasis in original). For the same
reason, it is unnecessary for this Court to determine
whether, as the Government argues, Carter’s earlier
responses to questions “invited” this error, see United
States v. Johnson, 26 F.3d 669, 777 (7th Cir. 1994) (“A party
may not ‘invite’ error and then argue on appeal that
the error for which he was responsible entitles him to
relief.”); but see United States v. Napue, 834 F.2d 1311, 1324
(7th Cir. 1987) (“if defense counsel exceeds proper
bounds in eliciting evidence, the prosecutor can object
and can even ask that defense counsel be held in con-
tempt; the prosecutor may not, however, fight fire with
fire”), thus excusing the Government from the general
proposition that “it is improper to ask one witness to
comment on the veracity of the testimony of another
witness.” Thomas, 453 F.3d at 846 (quoting United States
v. McKee, 389 F.3d 697, 699 (7th Cir. 2004)).
This Court will only find that an error was not harmless
“if the error had a substantial influence over the jury,
and the result reached was inconsistent with substantial
20 No. 06-2412
justice.” Owens, 424 F.3d at 653 (quoting United States v.
Hernandez, 330 F.3d 964, 969 (7th Cir. 2003)). We note at
the outset that this Court, in reviewing similar improper
questioning on the credibility of other witnesses for
plain error, has placed considerable weight on “the cura-
tive effect of jury instructions.” See McKee, 389 F.3d at
699; Thomas, 453 F.3d at 846. Here, the district court
instructed the jury that, “You are to decide whether
the testimony of each of the witnesses is truthful and
accurate in part, in whole, or not at all, as well as what
weight, if any, you give to the testimony of each witness,”
thus mitigating any potential prejudice to Carter
stemming from the Government’s line of questioning.
Furthermore, by Carter’s own admission, many of the
other factors relied upon by this Court in making a harm-
less error determination cut in the Government’s favor.
This Court has stated that in evaluating whether an
error was harmless, it looks to the following factors:
“(1) the importance of the witnesses’s testimony in the
prosecution’s case; (2) whether the testimony was cumula-
tive; (3) whether other evidence corroborated or con-
tradicted the witness’s material testimony; and (4) the
overall strength of the prosecution’s case.” United States
v. Ochoa, 229 F.3d 631, 640 (7th Cir. 2000). Carter, how-
ever, apparently misconstruing in whose favor these
factors are to be read, argues with respect to the first
factor that Carter’s statements as to the other wit-
nesses’ credibility were not important for the Govern-
ment’s case, and similarly for the second factor, argues
that the testimony was cumulative given the other testi-
mony provided by the Government’s own witnesses. While
Carter apparently believed that these factors cut in his
favor, a review of this Court’s discussion of these factors
No. 06-2412 21
in Ochoa makes clear that the less important the evidence
was to the Government, and the greater the degree to
which the evidence was cumulative in nature, the
stronger the argument that the error was harmless. Id.; see
also United States v. Hernandez-Rivas, 348 F.3d 595, 600 (7th
Cir. 2003). Given these concessions, particularly when
coupled with the district court’s curative instructions
and the amount of video evidence against Carter, we
find that the jury would have convicted Carter beyond a
reasonable doubt even in the absence of his testimony
regarding other witnesses’ credibility, and thus the
error was harmless.
C. Sentencing
Carter also appeals his sentence to this Court, claiming
that the district court erred by treating the Guidelines as
mandatory, particularly in light of the following, as
claimed by Carter: 1) facts mitigating in his favor; 2)
the weak evidence supporting the enhancement under
U.S.S.G. § 3B1.1(c) for serving as a leader; and 3) his
history in public service.
With respect to the district court’s application of the
sentencing enhancement for Carter’s serving as a leader,
to the extent Carter challenges the enhancement’s ap-
plicability, the district court’s finding was not clearly
erroneous. See United States v. Emerson, 501 F.3d 804, 815
(7th Cir. 2007) (stating that this Court reviews district
court applications of sentencing enhancements and down-
ward adjustments for clear error). The two-point enhance-
ment under U.S.S.G. § 3B1.1(c) applies to defendants
who were “an organizer, leader, manager, or supervisor
in any criminal activity” of less than five participants. At
22 No. 06-2412
the sentencing hearing, the district court heard extensive
arguments from both sides regarding the enhance-
ment’s applicability. In the end, the district court made a
finding that it was Carter who arranged for Livas to
meet with Allison, and that in exchange for providing
Livas with the contractor’s license, Carter accepted the
full payment of $500, later doling out $100 of that sum
to Allison for having changed Livas’s test score. Based
upon this arrangement, the district court found that
Carter was Allison’s leader in this crime. See U.S.S.G.
§ 3B1.1(c) cmt. n.4 (one factor to consider in determining
whether the defendant was a leader is the defendant’s
“claimed right to a larger share of the fruits of the
crime”). While Carter offered a differing interpretation of
the facts at the sentencing hearing, the district court’s
findings were supported by the evidence and the applica-
tion of the sentencing enhancement cannot be said to
have been clearly erroneous.
Still, Carter’s argument that the district court erred in
treating the Guidelines as mandatory does have merit. In
reviewing sentences, this Court first addresses whether
the district court committed a procedural error, such as
“treating the Guidelines as mandatory,” before then
considering “the substantive reasonableness of the sen-
tence under an abuse of discretion standard.” United
States v. Gordon, 513 F.3d 659, 666 (7th Cir. 2008) (citing
Gall v. United States, 128 S. Ct. 586, 597 (2007)). This thresh-
old procedural issue, concerning whether the district
court failed to properly recognize the advisory nature
of the Guidelines, is reviewed de novo. United States v.
Schmitt, 495 F.3d 860, 864 (7th Cir. 2007).
At the sentencing hearing, Defense counsel requested
that the district court consider Carter’s lengthy career in
No. 06-2412 23
public service as a reason for reducing Carter’s sentence.
The district court inquired as to whether public service
had ever been provided as a valid reason for “departure”
from the Guidelines in the past, to which Defense counsel
answered no. As this Court has held, the use of the term
“departure” is not in and of itself problematic, but there
is error in using this term when it makes a “substan-
tive difference” on the proper role of the Guidelines, as
was the case here. United States v. Dale, 498 F.3d 604, 611
n.6 (7th Cir. 2007); United States v. Rosby, 454 F.3d 670, 676-
77 (7th Cir. 2006). Here, the district court stated:
I attended a conference last year with regards to the
Guidelines. And I was put on notice by the Congress,
and by their staff members. As you know there has
been a controversy where there was a Supreme Court
case that talks about the Guidelines only being advi-
sory. And we were put on notice by Congress that if
we departed from them on a regular basis for no
valid reason—I say valid, because I was looking to
see if there is authority for doing that—that what
Congress was going to do is come back and have
mandatory minimums and everything. . . . So I don’t
have a problem with the departure, but I have to
find some authority, some basis for it before I’m
going to do it. Otherwise, I’m going to have some
reluctance to go through with it.
Later, when the district court was providing the basis for
its sentence, it reiterated that, “I, too, looked for public
officials doing their jobs for a basis of departure, and
was not able to find anything that gave me a basis by
itself to come down.”
The district court in this case appeared to place too
much weight on the Guidelines. The Guidelines are but
24 No. 06-2412
one factor among those listed in 18 U.S.C. § 3553(a), and
regardless of whether courts have previously recognized
public service as a ground for departure from the Guide-
lines, sentencing courts are charged with considering
as part of the § 3553(a) factors “the history and charac-
teristics of the defendant,” which would include a defen-
dant’s public service. § 3553(a)(1); see Rita v. United States,
127 S. Ct. 2456, 2473 (2007) (Stevens, J., concurring)
(“Matters such as age, education, mental or emotional
condition, medical condition (including drug or alcohol
addiction), employment history, lack of guidance as a
youth, family ties, or military, civic, charitable, or
public service are not ordinarily considered under the
Guidelines. These are, however, matters that § 3553(a)
authorizes the sentencing judge to consider.”) (internal
citations omitted). This factor, of course, must be
balanced with the other § 3553(a) considerations, in-
cluding the need to avoid unwarranted sentencing dis-
parities under § 3553(a)(6). We offer no opinion at this
time as to how these § 3553(a) factors should be measured
in this case, but remand for resentencing so the district
court can make this determination with the Guidelines
being given their appropriate post-Booker weight. See
United States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008)
(“A sentence is reasonable if the district court gives mean-
ingful consideration to the factors enumerated in 18
U.S.C. § 3553(a), including the advisory sentencing guide-
lines, and arrives at a sentence that is objectively reason-
able in light of the statutory factors and the individual
circumstances of the case.”).
No. 06-2412 25
III. Conclusion
For the foregoing reasons, we AFFIRM Defendant’s
convictions on all counts, but VACATE Defendant’s sen-
tence and REMAND for resentencing.
USCA-02-C-0072—6-19-08