United States v. Knox, Prince S. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2552
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P RINCE S. K NOX,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 917—Suzanne B. Conlon, Judge.
____________
A RGUED M AY 9, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before F LAUM, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Appellant Prince Solomon Knox
entered the United States as part of a refugee resettlement
program. He was later indicted and convicted essentially
for lying to the United States government by denying
involvement with armed rebel groups in connection
with his admittance into the country. We address three
main issues in this appeal—a venue question; Knox’s
request, which the district court denied, to go to Africa
2 No. 07-2552
for investigation/depositions; and two challenges to the
sufficiency of the evidence.
I. Background
During the 1990s Liberia was in the midst of several
civil conflicts. The Department of State, the Office of
United Nations High Commissioner for Refugees, and the
Department of Homeland Security (“DHS”) began a
United States resettlement program for Liberians in
Côte d’Ivoire (a.k.a. the Ivory Coast) who could not
return to Liberia or remain in Côte d’Ivoire because of the
civil unrest. Eligible individuals could apply to enter
the United States as refugees. Defendant Prince Solomon
Knox was from Sierra Leone, but his wife, Elizabeth
Knox, from Liberia, could apply for her entire family.
Knox, Elizabeth Knox, and their daughter applied under
this program. Of course, to be admitted, applicants had to
meet the qualifications, one of which, relevant here,
deemed persons who had belonged to or assisted
disfavored armed groups ineligible.
There are three such rebel groups we concern ourselves
with in this case: the National Patriotic Front of Liberia
(“NPFL”), the Independent National Patriotic Front of
Liberia (“INPFL”), and the Revolutionary United Front
(“RUF”). The RUF was known for grievous human rights
violations, the disturbing details of which are unnecessary
to recount for our present purposes. See Revolutionary
United Front, http://en.wikipedia.org/wiki/ Revolutionary_
United_Front (last visited Aug. 4, 2008); see also Kamara
v. Attorney General of the United States, 420 F.3d 202, 207
No. 07-2552 3
(3d Cir. 2005) (describing some of the RUF’s “grievous
human rights violations”). The State Department has
designated the RUF as a terrorist organization on the
terrorist exclusion list since December 2001.
On December 9, 2003, a State Department employee
interviewed the Knox family in Abidjan, Côte d’Ivoire.
At that time, in response to questions from DHS immigra-
tion officer David Radel, Knox denied that he had ever
been a member of disfavored armed groups, denied that
he had assisted them, and denied having served or par-
ticipated in military service or armed conflict. Similarly,
on Form I-590, Registration for Classification as Refugee,
Knox answered that he had no membership in and pro-
vided no aid to armed groups. He also answered “none”
when directed on the form to list “political, professional
or social organizations of which I am now or have been
a member or with which I am now or have been
affiliated with since my 16th birthday.” Radel also com-
pleted Form G-646, Sworn Statement of Refugee Applying
for Admission, into the United States on Knox’s behalf.
Knox answered “no” to the following questions: “Have
you ever provided support, including housing, transporta-
tion, communications, funds, documents, weapons or
training for any person or organization that has ever
engaged in or conspired to engage in sabotage, kidnaping,
assassination, hijacking, or any other form of terrorist
activity?” and “Have you ever been a representative
or member of a terrorist organization or a member of a
group which endorses terrorist activity?” These and other
similar statements are also confirmed in Radel’s written
notes of the interview.
4 No. 07-2552
Radel recommended that Knox be resettled in the United
States on or about December 9, 2003. Knox entered the
United States on April 14, 2004, through the Chicago
O’Hare international airport. He presented the I-590 Form
stamped by Radel to the DHS officer at O’Hare. Knox
then moved to St. Louis, Missouri. It was in Missouri that
Knox was arrested on December 21, 2006. The government
had come to believe that Knox had belonged to or sup-
ported the RUF, NPFL, and/or INPFL, and therefore,
lied on the forms and to Radel.
Knox was charged in a four-count indictment—two
counts for making materially false statements to fed-
eral agents and two counts for visa fraud, in violation of
18 U.S.C. §§ 1001 and 1546. The first count addressed
lying under oath on Form I-590, which was submitted
at O’Hare to gain entry. The second was for false state-
ments on Form G-646. Count Three was for making similar
false statements to Radel in Côte d’Ivoire. Count Four
was for lying to an Immigration and Customs Enforce-
ment agent on or about March 29, 2006, “in the Eastern
District of Missouri and Northern District of Illinois.” (It
appears that this “lie” was Knox claiming he had never
held a gun, a statement made in a recorded telephone
call between Knox and a government agent.) The district
court found Knox indigent and appointed counsel.
The factual crux of the case is whether Knox lied about
his involvement in these rebel groups. The majority of the
events related to the charges occurred in Sierra Leone,
Liberia, and Côte d’Ivoire. Accordingly, the defense
sought to investigate and possibly depose potential wit-
No. 07-2552 5
nesses in West Africa. Knox filed a written application for
authorization of extraordinary and substantial travel
and expert witness expenses with the intent to ultimately
take foreign depositions under Federal Rule of Criminal
Procedure 15. The district judge denied the application
without prejudice due to “vagueness” and a “failure to
address the legal basis for taking foreign depositions
in three unidentified West African countries.”
Knox filed another motion for leave to take foreign
depositions and identified four prospective witnesses by
name and address who were believed to have personal
first-hand knowledge concerning whether the defendant
was a member of any of the relevant groups. Knox also
pointed out that the government would be bringing
over witnesses from Africa. The court gave Knox an
opportunity to supply additional information (costs, etc.),
including in camera disclosures of the basis for
believing the witnesses would appear voluntarily, how
they would be contacted, etc. The government also filed
its opposition to Knox’s request(s). The court concluded
that the defense did not provide enough detailed infor-
mation, Knox having only explained that travel to West
Africa was necessary to investigate, locate, and interview
these individuals and that then more information would
be available. The court found this “problematic and
unworkable.” The defense could not provide the requisite
notice of when and where the depositions would occur.
The district court also faulted Knox for failing to address
the legality of the proposed investigations under the
sovereign laws of the relevant foreign nations or the
diplomatic implications to the United States. The court
6 No. 07-2552
found it “speculative” that Knox’s proposed depositions
would ever even occur or that they would preserve mate-
rial evidence under these unreliable circumstances. The
court, in a separate ruling, also denied expenses for
travel and expert services in Africa. Knox persisted none-
theless, filing an emergency motion and an amended
emergency motion for the district court to reconsider. The
district court was not persuaded, and the court denied
the motions for reconsideration.
At trial the government’s witnesses testified to the
following: they saw Knox serving as a bodyguard for an
RUF leader, saw him carrying an AK-47 rifle, saw him
at RUF meetings, observed him with RUF members, heard
him go by the name of a leader of the INPFL, saw him
in RUF apparel, heard him brag about being a rebel
fighter, overheard him tell about killing a family, and
knew that he was having an affair with an RUF leader’s
wife. Knox’s only trial witness was his estranged wife,
who hadn’t met him until 1996 or 1997 (a government
witness testified regarding events dating as far back as
1992). She denied ever seeing him in rebel garb or associat-
ing with the rebel groups. She admitted to a 7-8 month
separation and admitted that Knox never took her to his
home and that he told her it was none of her business
who his people were when she asked. The government
also elicited testimony that Knox hit her and threatened
to take their daughter shortly before their interviews
with the State Department.
At the close of the government’s case the defendant
made a Rule 29 motion for acquittal, but cited no specific
No. 07-2552 7
grounds. He renewed the motion after closing arguments.
The jury convicted on all four counts. Knox was sen-
tenced to 12 months’ imprisonment and three years of
supervised release. His sentence was completed on or
about December 14, 2007. Knox is currently in custody
with the Bureau of Immigration and Customs Enforce-
ment, which has initiated removal proceedings.
Knox now appeals. There are three major aspects to his
appeal that we will take up in turn: a question about
proper venue; a review of the district court’s decision to
deny Knox’s request to go to West Africa to investigate
and depose potential witnesses; and two sufficiency-of-the-
evidence challenges.
II. Venue
Knox argues that venue in the Northern District of
Illinois was improper with respect to Counts Three and
Four. The general rule is that we review de novo a
district court’s denial of a motion for judgment of acquittal
due to improper venue. See United States v. Ringer, 300 F.3d
788, 790 (7th Cir. 2002). However, this itself presents us
with a hurdle—whether Knox preserved this issue with
his generic Rule 29 motion for acquittal, as to either or
both counts, and if not preserved, whether that failure
was waiver or forfeiture.
Conventionally, a waiver is a knowing and intentional
relinquishment of a right, while forfeiture is the result of
unintentional relinquishment. E.g., United States v. Charles,
476 F.3d 492, 495 (7th Cir. 2007). Waiver precludes review,
8 No. 07-2552
whereas forfeiture permits review for plain error. Id. In
Ringer we found that “[a] claim of improper venue is
waived if the issue is apparent on the face of the indict-
ment and an objection is not made before the close of the
government’s case.” Ringer, 300 F.3d at 790. We continued,
“[I]f the indictment does not provide notice of a possible
defect in venue and the government rests without
proving that the crimes occurred in the district charged,
the defendant may then file a venue objection in a
motion for acquittal.” Id.
A. Count Three
We begin with Count Three. The alleged violation of
18 U.S.C. § 1001 occurred “in Abidjan, Ivory Coast”
according to the indictment. The indictment did not in
any way plead that the alleged false statements with
which Knox was charged had any impact in the Northern
District of Illinois. Therefore, we conclude, without
much difficulty, that notice of a possible defect in venue
was “apparent on the face of the indictment.” Accordingly,
Knox waived the argument by not making an objection
before the close of the government’s case. Id.; United
States v. Brandon, 50 F.3d 464, 469 (7th Cir. 1995); United
States v. John, 518 F.2d 705, 709 (7th Cir. 1975); United States
v. Bohle, 445 F.2d 54, 58-59 (7th Cir. 1971) (explaining that
“where the fact of improper venue is apparent on the
face of the indictment, it has been uniformly held that the
objection is waived if not presented before the close of the
Government’s case” (citing Wright’s Federal Practice &
Procedure: Criminal § 306)), overruled on other grounds by
No. 07-2552 9
United States v. Lawson, 653 F.2d 299, 303 n.12 (7th Cir.
1981); see also United States v. McDonough, 603 F.2d 19, 22
n.1 (7th Cir. 1979).
Knox urges us to discard Ringer’s application of the
waiver standard and apply the distinction we now draw
between waiver and forfeiture—which Knox believes
would result in our finding that he only forfeited, rather
than waived, the argument. We disagree, however, with
Knox’s premise that our court’s more recent applications
of the waiver/forfeiture distinction are inconsistent with
Ringer. Where venue was not adequately pleaded from
the outset and the potential defect is apparent on the
face of the indictment (such as this case where the only
location mentioned is in Africa), failing to raise such an
obvious issue is logically considered a knowing and
intentional relinquishment. Therefore, consistent with
both our traditional waiver/forfeiture distinction and
our governing case law, Knox waived any venue argu-
ment with respect to Count Three by not raising a venue
objection before the close of the government’s case.1
1
Even if we were to reject Ringer as Knox requests and some-
how conclude that he had until the end of the government’s
case to raise a venue objection, we would nevertheless find
that he waived the argument, because his “objection” at the
close of the government’s case, discussed infra in Part B, was
inadequate and did not preserve the venue issue for appeal.
10 No. 07-2552
B. Count Four
The venue issue regarding Count Four is more difficult.
Count Four of the indictment alleged that the 18 U.S.C.
§ 1001 violation occurred “in the eastern District of Mis-
souri and the Northern District of Illinois.” Therefore,
unlike Count Three that only mentioned Côte d’Ivoire,
we cannot say that any potential venue defect presented
itself on the face of the indictment. As we said in Ringer,
“if the indictment does not provide notice of a possible
defect in venue . . . the defendant may then file a venue
objection in a motion for acquittal” at the end of the govern-
ment’s case. Ringer, 300 F.3d at 790. Thus we are presented
with the question of whether the bare Rule 29 motion,
which did not mention venue (or anything else) specifi-
cally, was sufficient to preserve the venue issue.2
The government has the burden of proving venue by
a preponderance of the evidence. E.g., United States v.
Muhammad, 502 F.3d 646, 652 (7th Cir. 2007). In United
2
The relevant exchanges were brief indeed. At the end of the
government’s case, counsel for Knox addressed the court:
“I would make a rule 29 motion for judgment of acquittal on all
four counts of the indictment, but I will waive any argument at
this time.” The judge responded at once, first noting his con-
struction of the evidence in a light most favorable to the
government, then finding “[T]he government has established a
prima facie case as to all four counts.” Later, after closing
arguments, Knox’s counsel again requested “[C]ould the
record reflect a renewal of my Rule 29 motion of acquittal, and
I will waive argument?” The court responded: “All right. Your
motion is noted and denied.”
No. 07-2552 11
States v. Jones, we found that “the motion for acquittal
made at the conclusion of all the evidence properly raised
the question of venue in the court below.” 174 F.2d 746,
748 (7th Cir. 1949). We explained that it was a challenge
that the government failed in its proof and that the rules
do not require specifics in the motion. The government has
a duty to prove its case, including venue, and if it “is
challenged as to sufficiency by a general motion for
acquittal, it is the Government’s duty to require the
defendant to be specific in his objection, and a failure to
do so will not enable the Government on appeal to say
that the question was not specifically raised below.” Id.
However, thirty years later we expressed doubt about
Jones and have continued to move away from that holding.
McDonough, 603 F.2d at 22 (“[W]e have some question
about the continued viability of the Jones rule . . . .”). In
McDonough, distinguishing without overruling Jones, we
focused on the district judge’s question asking if there
was anything specific that would justify a directed acquit-
tal, and found that “the failure to urge the matter
[of venue] when asked to be specific forecloses, in our
opinion, raising the question on this appeal.” Id. We
criticized the defendant’s interpretation of Jones which
would give “the defendant the right to conceal possible
reversible error, even . . . when the grounds for objection
would have been . . . easily discovered.” Id. We also
went on to discuss the unique nature of venue, explaining
that while part of the government’s case, it can be
waived, is not part of the charged offense, and need only
be proved by a preponderance of the evidence. Id.
12 No. 07-2552
Similarly in United States v. Todosijevic, 161 F.3d 479, 482
(7th Cir. 1998), we found a Rule 29 motion insufficient to
preserve an issue “because [the defendant] rests her
current challenge on grounds different from those she
relied on in her motion to the trial court.” Id. We high-
lighted, as in McDonough, the defendant’s failure to raise
additional issues in response to the judge’s query as to
whether there were other possible grounds. See also id. at
482 n.3 (mentioning another case in which we had ex-
plained in dicta that “the defendant waived the suf-
ficiency of evidence argument on all grounds except that
which he relied upon at the trial court level”). And in
United States v. Rodriguez, we concluded, in dicta, that the
defendant’s “contention with respect to venue [wa]s
untimely” because his “motion for acquittal did not raise
the venue issue.” 67 F.3d 1312, 1317-18 (7th Cir. 1995).
Other circuits seem to follow approaches more akin to
our recent cases rather than the approach in Jones. Many
cases conclude, similar to our approach in Todosijevic, that
if specific issues are argued with the motion for acquittal,
the ones that are not asserted are waived. See, e.g., United
States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007) (finding
when a defendant asserts, in a Rule 29 motion, specific
grounds for a specific element of a specific count, he
waives all others for that count); United States v. Chance, 306
F.3d 356, 369 (6th Cir. 2002) (“Although specificity in a
Rule 29 motion is not required, where the defendant
makes a Rule 29 motion on specific grounds, all grounds
not specified in the motion are waived.”). Others conclude
more directly that an objection to venue is waived when
not specifically raised in the Rule 29 motion. See, e.g.,
No. 07-2552 13
United States v. Rommy, 506 F.3d 108, 119 (2d Cir. 2007)
(“[T]he law treats objections to venue as waived ‘unless
specifically articulated in defense counsel’s motion for
acquittal.’ ”); United States v. Carbajal, 290 F.3d 277, 289 n.19
(5th Cir. 2002) (“[The defendant] failed to preserve this
issue for appeal by specifically raising the issue in his
motion for acquittal or by requesting a jury instruction
on venue.”); United States v. Potamitis, 739 F.2d 784, 791
(2d Cir. 1984) (“A general motion for a judgment of
acquittal . . . is not sufficient to raise and preserve for
appeal the question of venue.”). But see United States v.
Zidell, 323 F.3d 412, 421 (6th Cir. 2003) (concluding that
a general Rule 29 motion preserved the venue challenge).
In reaching these conclusions, these courts focused, as
we have in this circuit, on the unusual status of venue.
While very important—as the defendant notes, it’s in
the Constitution twice, U.S. Const. art. III, § 2, cl. 3; amend.
VI—venue is universally recognized as waivable. It is
not an element of the charged crimes. And, as such,
while the burden does rest with the prosecution, that
burden of proof is only a preponderance of the evidence
(unlike the “beyond a reasonable doubt” standard for
the elements of the crime itself). Furthermore, a
defendant should not be permitted to hide in the weeds
with an objection (especially on a waivable issue with a
lower proof burden) only to pounce on appeal just in
case things do not go as desired in the court below. The
take-away message is that venue can be waived and a
defendant needs to be specific in a motion for acquittal
in order to preserve a venue argument for appeal.
14 No. 07-2552
Unlike McDonough and Todosijevic, the record here does
not reflect any inquiry on the part of the judge inviting
the defendant to argue specific grounds of the Rule 29
motion. Therefore, we cannot simply distinguish Jones.
Given the move in our own circuit away from Jones and
the similar treatment in cases from our sister circuits,
we take this opportunity to clarify our position and in
doing so overrule Jones.3 We now make explicit that a
bare Rule 29 motion for acquittal that does not even
mention venue waives the venue argument and fails to
preserve the issue for appeal.4 Applying this to the facts
of the instant case we find that Knox did not preserve
the venue challenge. Thus, the issue is waived, and
nothing more need be said.
3
This opinion has been circulated among all judges of this court
in regular active service under Circuit Rule 40(e). No judge
favored a rehearing en banc on the question of overruling
United States v. Jones.
4
This conclusion is analogous to our discussion supra explain-
ing that where a venue issue is obvious on the face of the
indictment, the failure to raise the issue is a knowing relinquish-
ment (especially since venue is waivable anyway). See Ringer,
300 F.3d at 790. Once the government reaches the end of its
case without proving venue, then it’s just as if the deficiency
is obvious on the face of the indictment, and a defendant’s
failure to raise a venue objection by that time is logically
considered knowing and intentional.
No. 07-2552 15
III. Foreign Funding
Knox applied for funds to travel to West Africa to
investigate and depose witnesses under 18 U.S.C.
§ 3006A(e)(1) and Federal Rule of Criminal Procedure 15;
the district judge denied his requests. 18 U.S.C.
§ 3006A(e)(1) authorizes investigative and expert ex-
penditures on behalf of indigent defendants when neces-
sary for adequate representation. We review a district
court’s decision to grant or deny such funds under
18 U.S.C. § 3006A(e)(1) for abuse of discretion. See United
States v. Smith, 502 F.3d 680, 686 (7th Cir. 2007). Rule 15
of the Federal Rules of Criminal Procedure also permits
a defendant to make a motion to depose witnesses—an
unusual occurrence in a criminal case—when “excep-
tional circumstances” warrant it. This is also reviewed for
abuse of discretion. See, e.g., United States v. Thomas, 62 F.3d
1332, 1340 (11th Cir. 1995); United States v. Kelley, 36 F.3d
1118, 1125 (D.C. Cir. 1994).
In Smith, the defendant sought funds for a fingerprint
expert. We explained that under 18 U.S.C. § 3006A(e)(1)
“[t]he government will give an indigent defendant access
to expert services adequate to facilitate the defendant’s
representation if the court finds that the services are
necessary” and that they should be provided “where ‘a
reasonable attorney would engage such services for a
client having the independent financial means to pay for
them.’ ” Smith, 502 F.3d at 686 (citing United States v.
Cravens, 275 F.3d 637, 639 (7th Cir. 2001)). Furthermore,
before granting the expenditures, the court may consider
whether the defendant has a “plausible defense” as the
16 No. 07-2552
government does not have to “finance a fishing expedi-
tion.” United States v. King, 356 F.3d 774, 778 (7th Cir. 2004)
(internal quotation omitted).
We addressed the Rule 15 “exceptional circumstances”
requirement briefly in United States v. Morrison, 946
F.2d 484, 490 (7th Cir. 1991), where we affirmed a district
court’s denial of a request for money to travel to Puerto
Rico to interview witnesses, take depositions, and investi-
gate the scene of a drug ring’s alleged operations. We
explained that “a showing of exceptional circumstances
must be considerably more concrete and particularized
than mere speculation about the possible need for deposi-
tions in the future.” Id. Beyond this brief treatment in
Morrison, we have not had the occasion to outline any
“test” for when the “exceptional circumstances” threshold
would be met justifying authorization of foreign deposi-
tions; therefore we take note of some factors considered
relevant by other circuits. The Ninth Circuit considered
whether the deponent would be available at the proposed
location of the deposition, whether the deponent would
be willing to testify, and the safety of United States offi-
cials in going to the foreign location. See United States v.
Olafson, 203 F.3d 560, 567 (9th Cir. 2000). The Eleventh
Circuit focused on the materiality of the proposed testi-
mony, the availability of the witness, whether injustice
will otherwise result without the material testimony
that the deposition could provide, and whether counter-
vailing factors would make the deposition unjust to the
nonmoving party. See Thomas, 62 F.3d at 1340-41. The D.C.
Circuit listed as critical factors the materiality of the
testimony and the unavailability of the witness to testify
No. 07-2552 17
at trial and also noted that there is “typically some show-
ing, beyond ‘unsubstantiated speculation,’ that the evi-
dence exculpates the defendant.” Kelley, 36 F.3d at 1125
(citing cases from the Third, Fifth, and Ninth Circuits).
As we described, Knox made many attempts to obtain
authorization for expenses to investigate and depose
witnesses in the West African countries of Sierra Leone,
Liberia, and Côte d’Ivoire. We are not unsympathetic to
his desire to investigate and depose witnesses there—he
is correct that many of the events relevant to his case
occurred there. However, we do not find that the
district court abused its discretion in denying funds for
a proposal accurately characterized by the district court
as “problematic and unworkable.”
Specifically, addressing Rule 15’s requirements, we
conclude Knox’s request was not sufficiently “concrete
and particularized” to justify authorizing the expenditures.
Morrison, 946 F.2d at 490. Moreover, Knox’s request would
fail under nearly all of the factors we cited from other
circuits. Knox could not provide when or where
the potential witnesses would be found. He had their
addresses but offered nothing to establish the indi-
viduals would be present at any given date or time—or
how he would get over the hurdle of no phone or
email availability. For example, one witness’s address
was in Sierra Leone, but Knox indicated that the witness
was also believed to spend time in Côte d’Ivoire and
that he might be found there; plans for tracking this
witness down were not offered. Considering this search
would involve crossing international borders, it is not
18 No. 07-2552
an insignificant question. Such an absence of attention to
detail pervaded Knox’s entire request.5 Similarly, the
materiality of the potential testimony seemed based
entirely on conjecture and speculation. No details were
given regarding the expected substance of their testi-
mony or how it would exculpate Knox. Knox also did not
disclose any basis, other than a familial relation to the
defendant, for why these individuals would be willing
to testify voluntarily. There was also a rather cavalier
attitude toward international law and diplomatic con-
cerns raised by the district judge. Knox argued that such
matters were not his concern; nevertheless, surely he
cannot expect a United States court to authorize such
expenses to engage in investigating terrorist group mem-
bership without detail on the legality of investigating and
taking depositions in these countries. In the end Knox
simply did not demonstrate the requisite “exceptional
circumstances” for Rule 15 depositions.
Knox argues that he may have been able to furnish
these answers if he had been given investigative funding
under § 3006A(e)(1). He asserts that his request was a two-
step process and that he could have been given funds to
5
In essence, Knox was seeking funds to first find these individ-
uals, then to interview them, and only after that to announce
whether he would seek to depose them. If nothing else was
flawed about this request, the holding pattern that would be
imposed on the attorney for the government raises serious
concerns. Government counsel would need to be in a position
to be in an unspecified location in West Africa, perhaps on
short notice, for an indefinite period.
No. 07-2552 19
go investigate, after which he could satisfy the Rule 15
requirements. But we conclude his § 3006A(e)(1) requests
failed for many of the same reasons. He could not pro-
vide sufficient details for the trip regarding when,
where, and how he would make contact with the wit-
nesses. We understand that there were difficulties
given the undeveloped communications infrastructure
in some areas; however, Knox did not suggest how he
intended to overcome this challenge. He provided only a
vague trip itinerary, and the estimated expenses were
equally broad and without detail, as well as possibly in
excess of the statutory amount. See 18 U.S.C. § 3006A(e)(3)
(“Compensation to be paid to a person for services ren-
dered by him to a person under this subsection, or to be
paid to an organization for services rendered by an em-
ployee thereof, shall not exceed $1,600, exclusive of reim-
bursement for expenses reasonably incurred, unless
payment in excess of that limit is certified by the
court . . . .”). His “spreadsheet” for the 12-day trip had
only six itemized entries and totaled $34,565.30. (Al-
though in a later motion he did indicate the costs would
be less.) Knox did not make a convincing showing that
these expenses were “necessary” for adequate representa-
tion and that “a reasonable attorney would engage such
services for a client having the independent financial
means to pay for them.”
To recap, while Knox was persistent in his requests,
those requests simply did not provide enough informa-
tion to justify granting them. He had not contacted poten-
tial witnesses; he could not provide a proposed itinerary;
he did not sufficiently address the practical or diplomatic
20 No. 07-2552
issues inherently related to going to foreign countries
for these purposes. He could not provide the government
with notice of when or where such depositions might
occur or even a proposal of how this might be arranged.
While some difficulties making arrangements to inter-
view and depose these witnesses may be understandable
given the remote areas being dealt with, it is those very
circumstances and the nature of this case (involving
terrorist activities and rebel groups) which heightened
the concerns and made the need for planning more acute.
Too many unknowns remained unresolved and unre-
searched for the government to foot the bill for what
appeared a bit like a “fishing expedition” into seemingly
unknown and potentially shark-infested waters. Knox has
not shown on appeal that the district court abused its
discretion in denying the requests.
We also note that Knox presented a constitutional
argument on this issue, specifically raising his Sixth
Amendment right to present a defense. However, as Knox
admitted in his brief, this right “is not unlimited and may
‘bow to accommodate other legitimate interests in the
criminal trial process.’ ” Horton v. Litscher, 427 F.3d 498, 504
(7th Cir. 2005) (quoting Chambers v. Mississippi, 410 U.S.
284, 295 (1973)). Requiring more from Knox in this
instance to support his requests was quite reasonable and
clearly in furtherance of other legitimate interests. Cer-
tainly, there are occasionally situations where procedural
rules must bend to the demands of the Constitution. See,
e.g., Chambers, 410 U.S. at 302-03. Knox, however, has
presented no compelling reason that the rules applied here,
Rule 15 and § 3006A, should bend to accommodate his
No. 07-2552 21
“fishing expedition,” and he has presented no persuasive
argument that the rules were “arbitrary” or “dispropor-
tionate to the purposes they are designed to serve.” Horton,
427 F.3d at 503 (“[R]ules ‘designed to assure both fair-
ness and reliability in the ascertainment of guilt and
innocence’ . . . do not abridge an accused’s right to
present a defense so long as they are not ‘arbitrary or
disproportionate to the purposes they are designed to
serve.’ ” (quoting Chambers, 410 U.S. at 302 and Rock v.
Arkansas, 483 U.S. 44, 56 (1987)). We do not find that his
constitutional rights were violated, especially since he
fell short in establishing the materiality of the potential
testimony and the availability of any of the potential
witnesses and did not establish the “necessity” of the
funding, as we discussed supra. Cf. United States v. Loggins,
486 F.3d 977, 982 (7th Cir. 2007) (finding the evidence
at issue “lack[ed] th[e] exculpatory significance and the
reliability necessary to support a Sixth Amendment
violation”).
IV. Sufficiency of the Evidence
Lastly, Knox challenges the sufficiency of the evidence
with respect to Counts One and Two. We review de novo
and will reverse a conviction only when no rational trier
of fact, viewing the evidence in the light most favorable
to the prosecution, could have found the essential ele-
ments of the crime beyond a reasonable doubt. E.g., United
States v. Mendoza, 510 F.3d 749, 752 (7th Cir. 2007). This
standard is “highly deferential” and “nearly insurmount-
able.” Id. (internal quotations omitted).
22 No. 07-2552
Count One charged Knox in connection with re-
sponding “none” when asked to list political, professional,
or social organizations of which he was now or has been
a member or with which he was or had been affiliated
since his 16th birthday on Form I-590. He argues that the
government never proved that the RUF or any other
armed rebel group at issue was a “political, professional, or
social organization.” He makes an analogy to the United
States Army, expressing doubt that a United States
soldier would say he belonged to a “political, professional,
or social organization.” The RUF and related groups were
described as terrorist organizations, not groups with
political or social agendas. Knox agrees the evidence
supported a finding that he belonged to an armed group,
but he points out that was not what the government had
to show.
Knox’s argument with respect to Count Two is similar.
Count Two alleges two knowing false statements of
material fact: First, that Knox lied on Form G-646 denying
he ever provided support, including housing, transporta-
tion, communications, funds, weapons, documents, etc.
for any person or organization that has engaged in or
conspired to engage in sabotage, kidnaping, assassination,
hijacking, or any other form of terrorist activity; Second,
that he lied on Form G-646 when he denied ever being
a representative or member of a terrorist organization or
a member of a group which endorses terrorist activity.
Knox argues that while he stipulated at trial that the
RUF is on the terrorist exclusion list, the government did
not establish that Knox knew any of this when he was
responding to Radel’s questions. He asserts that the
No. 07-2552 23
testimony from the government’s witnesses establishing
Knox’s connection with these groups (serving as an
armed guard at a speech, wearing rebel garb, etc.) falls
short of acts (kidnaping, assassination, hijacking, etc.)
referred to in the form and does not establish that Knox
knew that the RUF was a terrorist organization engaged
in such acts.
The government, in response to the Count One argu-
ment, notes that testimony from multiple witnesses
established that the RUF was a political or social organiza-
tion. Specifically an expert testified that there were social,
political, and military aspects to the organization. Testi-
mony from other witnesses included references to “battling
the government” and other similar comments. The gov-
ernment’s response with respect to Count Two is that
Knox’s claim that he did not know RUF engaged in terror-
ist activities, etc. is incredible. Witnesses testified that
Liberia and Côte d’Ivoire were war-torn countries experi-
encing severe civil conflict with armed groups burning
whole villages and massacring civilians. In fact, these
circumstances are what prompted the creation of the
refugee program to which the Knox family applied.
Given a defendant’s “uphill battle” in mounting a
sufficiency-of-the-evidence challenge, we conclude the
evidence was sufficient for any trier of fact to find Knox
guilty of visa fraud as charged in Counts One and Two.
The testimony collectively was sufficient to enable a jury
to reasonably conclude that the rebel groups at issue
would accurately be described as “political, professional,
or social” organizations. Witnesses also testified that Knox
24 No. 07-2552
served as a bodyguard for a RUF leader, was seen at RUF
meetings, was seen carrying a gun, had said he killed a
family, and went by the name of an INPFL leader, among
other things. Given this involvement and the state of civil
unrest generally, a jury could reasonably infer, with little
effort, that Knox could not help but be aware of the group’s
terrorist bent. Thus, Knox does not prevail on these
sufficiency-of-the-evidence challenges.
V. Conclusion
For the foregoing reasons, the judgment of conviction
is A FFIRMED.
9-2-08