United States v. Mickey Dooley ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4131
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICKEY L. D OOLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:08-cr-30010-GPM-PMF-1—G. Patrick Murphy, Judge.
A RGUED M AY 27, 2009—D ECIDED A UGUST 20, 2009
Before C UDAHY, R IPPLE and W OOD , Circuit Judges.
R IPPLE, Circuit Judge. Mickey L. Dooley was convicted
in the United States District Court for the Southern
District of Illinois on charges arising out of thefts from
the evidence locker of the municipal police department
where he was employed. The district court sentenced
him to 120 months’ imprisonment, followed by three
years of supervised release. Mr. Dooley filed this timely
appeal challenging both his conviction and his sentence.
For the reasons discussed in this opinion, we affirm his
2 No. 08-4131
conviction in part and reverse it in part. Because we
are reversing his conviction on one count, we also must
vacate his sentence and remand his case to the district
court for resentencing.
I
BACKGROUND
Mr. Dooley was a police officer employed by the Alton
(Illinois) Police Department (“APD”). During the time
period relevant to this case, Mr. Dooley was the evi-
dence custodian for the APD; in this capacity, he was
responsible for collecting and processing evidence at
the scenes of major crimes committed within the APD’s
jurisdiction. He was also in charge of receiving, maintain-
ing and preserving the evidence that was stored in
the APD’s evidence vault.
The APD’s evidence vault was subject to strict security
measures. Only five members of the APD, including
Mr. Dooley, had access cards allowing entry to the vesti-
bule area outside the evidence vault. Entry to the vault
itself required a special secure key; only two copies of
that key existed. One was assigned to Mr. Dooley; the
second was stored in a secure area in the administration
wing of the APD. The cash locker inside the vault
required another key for access; only two copies existed.
One was assigned to Mr. Dooley and the other was
stored in the secured administration wing.
In June 2006, the Olin Community Credit Union in Alton
was robbed (the “OCU robbery”). In October 2006, a
No. 08-4131 3
local branch of the US Bank was robbed (the “US Bank
robbery”). The APD investigated the robberies; it ulti-
mately was able to recover $4,115 in proceeds from the
June robbery and $20,029 from the October robbery.
Mr. Dooley participated in both investigations and per-
sonally deposited the money into the APD evidence
vault. On Friday, April 6, 2007, FBI Special Agent Melanie
Jiminez contacted Mr. Dooley’s supervisor to request
that evidence from the OCU robbery be turned over to
the FBI for use in the federal prosecution in that case.
That same day, Mr. Dooley’s supervisor sent him an e-
mail to inform him that the FBI wished to retrieve that
evidence the following week. On Sunday, April 8—one
of Mr. Dooley’s days off—surveillance cameras recorded
Mr. Dooley inside the evidence vault removing the
box containing evidence from the OCU robbery.
On the following Monday, April 9, Special Agent
Jiminez called Mr. Dooley to arrange to pick up the evi-
dence. Mr. Dooley told Jiminez that he would provide
a container in which to carry the evidence. He also
asked her to delay the evidence pickup until the
following day. Jiminez agreed. When Jiminez arrived
the next day, Mr. Dooley gave her an inventory list to
check off while he handled the evidence packages. While
Jiminez was looking at the list, the surveillance camera
captured Mr. Dooley placing one of the packages under
another; as a result, Jiminez never examined the contents
of the concealed package. Mr. Dooley then carried the
evidence out to Jiminez’s car.
Jiminez took the evidence directly to the FBI’s secure
evidence room, where it remained until Friday, April 13,
4 No. 08-4131
2007. On that day, the FBI discovered that most of
the money recovered from the OCU robbery was
missing and that the original seals on the evidence enve-
lopes had been compromised. Jiminez notified her direct
supervisor and the APD. In response, APD Police Chief
Chris Sullivan ordered an inventory of the APD evidence
vault. He also ordered APD personnel not to enter the
vault until after the inventory was completed on the
following Monday. Despite Chief Sullivan’s order to stay
out, Mr. Dooley was recorded entering the vault on
both Saturday and Sunday. On Sunday, the cameras
also recorded him accessing the APD’s cash locker.
The APD conducted an audit of the evidence vault on
Monday, April 16, 2007. As a result, the APD discovered
that bags containing evidence from the US Bank robbery
had been tampered with and that $18,608 was missing
from the evidence in that case. Investigators later dis-
covered that an evidence bag containing $9,460 had
been cut open, re-sealed, and initialed by Mr. Dooley.
Handwriting analysis confirmed that the initials were
written by Mr. Dooley.
The APD then terminated its internal investigation
and turned the matter over to the Illinois State Police and
the FBI. Investigators performed a full audit of the
APD’s cash locker and discovered that a total of $38,749.58
was missing. Some of the missing currency had been
replaced with poor-quality counterfeit bills. The investi-
gation also revealed that Mr. Dooley had removed evi-
dence, including cash, a computer and marijuana, from the
scene of a death investigation. He had not booked that
evidence or documented its existence in any way.
No. 08-4131 5
After discovering the counterfeit currency in the evi-
dence vault, the investigators asked Mr. Dooley if they
could search any computers he owned. Mr. Dooley told
the investigators that he owned two computers, and he
signed a form titled “CONSENT TO SEARCH BY
OWNER,” which represented that he had ownership and
authority over both computers. Investigators discovered
that the serial number of one of the computers, an Apple
Macintosh laptop, matched the serial number of a com-
puter that had been taken from the home of Lee Fielding,
one of the perpetrators of the US Bank robbery.
The investigators then interviewed Mr. Dooley again
and asked him if he had stolen the laptop. Mr. Dooley
initially denied having stolen it; he insisted that he
had bought the laptop from the Apple Store at the
Galleria mall in St. Louis, Missouri, for $2,000 in cash. He
claimed that he had a receipt at home that would prove
his ownership. After about thirty minutes of questioning,
however, Mr. Dooley changed his story and admitted
that he had stolen the laptop. A forensic examination
revealed that he had entered ownership information on
the laptop as if it were his own and had used the
computer for personal purposes. The examiners also
discovered that Mr. Dooley had used the laptop to con-
duct a Google search on the phrase “financial ruin.” R.125
at 959.
Further investigation revealed that Mr. Dooley was in
serious financial trouble. He owed tens of thousands of
dollars in back taxes; he was the subject of several IRS tax
levies and a wage garnishment. The investigators also
6 No. 08-4131
uncovered massive gambling losses: In 2006, Mr. Dooley’s
take-home pay totaled $35,955, but his losses at the
Alton Belle Casino totaled $48,424.95. Investigators also
discovered that Mr. Dooley did not file a 2006 federal tax
return until October 31, 2007, well after he became
aware that he was under investigation by the IRS.
On May 22, 2008, the Government brought an eight-
count indictment against Mr. Dooley in the United States
District Court for the Southern District of Illinois. The
crimes alleged were: (1) two counts of making a false
statement, 18 U.S.C. § 1001(a)(2); (2) one count of wire
fraud, 18 U.S.C. §§ 1343, 1346; (3) one count of attempting
to conceal evidence, 18 U.S.C. § 1512(c)(1); (4) two counts
of disposal of money stolen from a bank, 18 U.S.C.
§ 2113(c); (5) one count of misapplication of property
under the control of a local government, 18 U.S.C. § 666;
and (6) one count of failure to file a tax return, 26 U.S.C.
§ 7203. Mr. Dooley filed a motion to dismiss the indict-
ment, which the district court denied.
After a two-week trial, a jury convicted Mr. Dooley on
all counts. The district court imposed an above-guidelines
sentence of 120 months in prison. Mr. Dooley then filed
this appeal, in which he challenges the indictment, his
conviction and his sentence.
II
DISCUSSION
Mr. Dooley raises five points of error. He challenges the
sufficiency of the evidence at trial, the sufficiency of
No. 08-4131 7
the indictment, the district court’s decision to exclude
certain evidence at trial, the district court’s refusal to
give a requested jury instruction and the reasonableness
of his sentence. We shall address each of his arguments
in turn.
A. Sufficiency of the Evidence
Mr. Dooley submits that the evidence presented by the
Government on each of the eight counts was insufficient
to permit any rational trier of fact to conclude that he
was guilty beyond a reasonable doubt. He also contends
that the district court “rushed” his defense by requiring
him to counter two weeks of government evidence in
only one day.1 Appellant’s Br. 18.
“A challenge to the sufficiency of the evidence is a
difficult task for a defendant. We shall reverse only if,
after viewing all of the evidence in a light most favorable
1
This latter assertion is not supported by the record. The
portion of the trial transcript to which Mr. Dooley cites does
not substantiate his assertion that the court forced him to take
less time than he needed to put on his defense. According to
the transcript, the court simply asked Mr. Dooley’s counsel how
much time he would need to present his case. Mr. Dooley’s
counsel replied, “I would say the better part of the day, your
Honor,” to which the court responded, “Very well.” R.126 at
1401. Mr. Dooley does not claim that he ever asked for more
time. Furthermore, he has made no attempt to explain what
additional evidence he would have presented if he had more
time to put on his defense.
8 No. 08-4131
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. Hearn, 534 F.3d 706,
714 (7th Cir. 2008) (alteration in original) (citation and
quotation marks omitted).
Mr. Dooley points to several pieces of evidence that
could have provided a basis for reasonable doubt if the
jury had decided to credit them. For seven of the eight
counts, however, he fails to identify any element of any
of the crimes for which the Government failed to
present evidence sufficient to support the jury’s verdict.
Rather, he simply takes issue with the weight the jury
chose to assign to the Government’s evidence. This is not
an adequate basis on which to challenge a conviction. See
United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008)
(“It is up to the jury to weigh the evidence and determine
the credibility of the witnesses; we do not second-guess
the jury’s assessment of the evidence.”).
On one of the eight counts, however, Mr. Dooley’s
challenge has merit. Count 3 of the indictment alleges
that Mr. Dooley committed wire fraud in violation of 18
U.S.C. §§ 1343 and 1346. The wire fraud statute makes it
a crime to “transmit[] or cause[] to be transmitted by
means of wire . . . in interstate or foreign commerce, any
writings, signs, signals, pictures or sounds for the pur-
pose of executing [a fraudulent] scheme or artifice.”
18 U.S.C. § 1343. Count 3 of the indictment alleges that
Mr. Dooley engaged in a “scheme to defraud the City
of Alton Police Department and the citizens of the South-
No. 08-4131 9
ern District of Illinois out of the right to honest services
of the evidence officer of the Alton Police Department to
preserve the integrity of evidence being stored in con-
nection with criminal investigations and prosecu-
tions.” R.25 at 2. The indictment alleges that Mr.
Dooley’s scheme violated the wire fraud statute by
causing an e-mail to be sent from Mr. Dooley’s super-
visor, David Hayes, to Mr. Dooley on April 6, 2007. In
that e-mail, Hayes directed Mr. Dooley “to gather
evidence being held in the [APD] evidence vault to
return to the [FBI] for a federal bank robbery prosecu-
tion.” Id. at 3-4. The indictment further alleges that
Mr. Dooley’s “concealment of his misappropriation of
evidence was incidental to an essential part of his
scheme to continue his employment and further misap-
propriate evidence,” and adds that Mr. Dooley “knew
that the F.B.I. would be seeking the return of the evidence
in the ordinary course of business and therefore that
the use of telephones or email transmissions would occur
in the ordinary course of business.” Id. at 4. The Gov-
ernment’s theory is that the e-mail put Mr. Dooley on
notice that the FBI would be coming to take possession
of the evidence from the OCU robbery and that this
information helped him conceal the fact that he had
stolen most of the money from that robbery.
We have held that, under certain circumstances, a
communication is made “for the purpose of executing” a
fraud when the communication facilitates concealment
of an ongoing fraudulent scheme. See, e.g., United States
v. Turner, 551 F.3d 657, 668 (7th Cir. 2008) (“Use of the
mails to lull victims into a false sense of security, we
10 No. 08-4131
have held, violates the mail fraud statute, even if
it occurs after the money has been fraudulently ob-
tained.” 2 (quoting United States v. Brocksmith, 991 F.2d
1363, 1367-68 (7th Cir. 1993))). We need not consider
whether the evidence supports a concealment theory in
this case, however, because it is clear that the Govern-
ment failed to prove another requirement of the wire
fraud statute: that the defendant “transmit[ted] or
cause[d] to be transmitted” a wire communication. 18
U.S.C. § 1343.
The Government based the wire fraud charge on an e-
mail message sent by Hayes to Mr. Dooley on April 6,
2007. In that message, Hayes informed Mr. Dooley that
FBI Special Agent Jiminez would be coming to collect
the evidence from the OCU robbery. The Government
submits that, although Mr. Dooley did not send that
message himself, he nevertheless “caused” it to be sent
because he “acted with knowledge that the use of a
wire was reasonably foreseeable.” Appellee’s Br. 33
(citing United States v. Ratliff-White, 493 F.3d 812, 818
(7th Cir. 2007)). To support this theory, the Government
relies on the Supreme Court’s decision in Pereira v.
United States, 347 U.S. 1 (1954). In Pereira, the Court held
2
The federal mail fraud statute, 18 U.S.C. § 1341, is worded
almost identically to the wire fraud statute and is part of the
same chapter of the United States Code. We have held that
“[c]ases construing the mail-fraud statute are equally
applicable to cases involving violations of the wire-fraud
statute.” United States v. Turner, 551 F.3d 657, 666 n.4 (7th
Cir. 2008) (citation omitted).
No. 08-4131 11
that “[w]here one does an act with knowledge that the
use of the mails will follow in the ordinary course of
business, or where such use can reasonably be foreseen,
even though not actually intended, he ‘causes’ the mails
to be used.” Id. at 8-9. The Government submits that,
because Mr. Dooley could foresee that Hayes would send
him an e-mail directing him to get the evidence ready
for pickup, he therefore “caused” the April 6 e-mail to
be sent.
The Government’s position is based on a misreading of
Pereira and an untenable reading of the wire fraud
statute. Pereira says that the defendant “caused” a com-
munication when he acted with the knowledge (or reason-
able foresight) that such a communication would “follow”
from his action. The Government seems to take the view
that by “follow,” the Court simply meant “occur after.”
Although this is one meaning of the word “follow,” it
plainly cannot be the one the Court intended, for such
an interpretation would read the word “causes” com-
pletely out of the statute. Rather, it is clear that the
Court meant that the communication must occur not
only after the defendant’s act, but as a result of that act. The
statute requires a causal connection between the defen-
dant’s actions and the communication, not simply a
temporal one.
This reading is borne out by the facts in Pereira itself. In
that case, the defendants had conspired to defraud a
widow by falsely representing that one of them was a
successful oil speculator. The scheme was successful,
and it resulted in the mailing of a $35,000 check from a
12 No. 08-4131
bank in Texas to a bank in California. This mailing, which
occurred as a direct result of the defendant’s scheme
and would not have occurred in its absence, was the
basis for the defendants’ mail fraud conviction, which
the Supreme Court affirmed. The mailing did not
simply occur after the defendants’ fraudulent actions; it
occurred because of them. See id. at 8 (“To constitute a
violation of these provisions, it is not necessary to show
that petitioners actually mailed or transported anything
themselves; it is sufficient if they caused it to be done.”
(emphasis added)).
Cases in this circuit and others confirm the require-
ment that the defendant’s actions and the communica-
tion at issue must be causally connected.3 In each of
3
Several of our recent cases illustrate this point. In United States
v. Adcock, 534 F.3d 635 (7th Cir. 2008), the defendant acquired a
government painting contract by concealing his financial
interest in the contractor. This resulted in interstate wire
transfers of funds from the United States Treasury to the bank
account of the operator of the facility being painted; the facility
operator then used those funds to pay the contractor. The wire
transfers not only were foreseeable to the defendant, but
they also would not have occurred in the absence of the defen-
dant’s misrepresentations.
In United States v. Turner, 551 F.3d 657 (7th Cir. 2008), the
defendant supervised janitors who were employed by the
State of Illinois. The defendant helped the janitors falsify their
time cards to collect wages for time they did not actually
work. As a result, the interstate wire transfers of their pay-
(continued...)
No. 08-4131 13
these cases, the mailing or wire transmission on which
the conviction was based either would not have
occurred, or would have occurred in a substantially
different form, in the absence of the defendant’s fraud-
ulent conduct.
3
(...continued)
checks were for an inflated amount. If not for the defendant’s
misconduct, no wire transfers in those amounts ever would
have occurred.
In United States v. Ratliffe-White, 493 F.3d 812 (7th Cir. 2007),
the defendant was convicted of wire fraud based on a com-
munication sent from the United States Department of the
Treasury in Maryland to the Federal Reserve Bank in Dallas; that
communication instructed that payment be made to the defen-
dant’s fraudulent business. Id. at 815-16. This court held that
the defendant caused a wire transmission in furtherance
of her scheme because she knew that payments would be
electronically transmitted to her account and therefore “she
clearly foresaw that her fraud . . . would result in wire transmis-
sions.” Id. at 819 (emphasis added).
Language in cases from other circuits also reflects the neces-
sity of a causal connection. See, e.g., United States v. Edelmann, 458
F.3d 791, 812 (8th Cir. 2006) (“The statute provides that a
defendant must ‘cause’ the use of mails, but a defendant will
be deemed to have ‘caused’ the use of mails . . . if the use was
the reasonably foreseeable result of his actions.” (emphasis
added) (citation and quotation marks omitted)); United States
v. Bruckman, 874 F.2d 57, 60 (1st Cir. 1989) (holding that a
defendant satisfies the causation requirement by “doing some
act from which it is reasonably foreseeable that the mails will
be used”) (emphasis added) (citation and quotation marks
omitted)).
14 No. 08-4131
That causal connection is absent in this case. Even if
Mr. Dooley never had committed any theft, the FBI still
would have asked to take possession of the OCU money
in order to use it in the federal prosecution for that bank
robbery, and Hayes would have sent Mr. Dooley exactly
the same e-mail message asking him to prepare that
evidence for the FBI. Mr. Dooley’s conduct had no effect
on either the existence of that wire transmission or its
content. He did not “cause” it to be sent in any sense of
the word. Compare United States v. Kwiat, 817 F.2d 440, 443-
44 (7th Cir. 1987) (reversing a mail fraud conviction
where “honest services would have produced the same
sort of mailings” as the ones the defendants made), with
United States v. Mitchell, 744 F.2d 701, 704 (9th Cir. 1984)
(affirming a mail fraud conviction where the mailings
“would not have occurred except as a step in the scheme”).
Because he did not transmit or cause the transmission of
any interstate wire communication, Mr. Dooley is not
guilty of wire fraud. His conviction on Count 3 therefore
must be reversed, and an order of acquittal must be
entered on that count.
B. Sufficiency of the Indictment
Mr. Dooley submits that the case against him should
have been dismissed because the indictment was inade-
quate under Rule 7(c)(1) of the Federal Rules of Criminal
Procedure. Rule 7(c)(1) provides that “[t]he indictment or
information must be a plain, concise, and definite
written statement of the essential facts constituting the
offense charged . . . .” Mr. Dooley contends that none of the
No. 08-4131 15
counts in the indictment were “suffic[i]ent enough to
provide any factual particulars to fully, directly and
without any ambiguity inf[or]m [him] of what he must
be prepared to meet.” Appellant’s Br. 12.
An indictment is sufficient if it meets three require-
ments: “First, it must state each element of the crimes
charged; second, it must provide the defendant with
adequate notice of the nature of the charges so that the
accused may prepare a defense; and third, it must allow
the defendant to raise the judgment as a bar to future
prosecutions for the same offense.” United States v. Castaldi,
547 F.3d 699, 703 (7th Cir. 2008) (citation omitted). To
mount a successful challenge to the sufficiency of an
indictment, a defendant must show that the indictment
failed to satisfy one or more of these requirements.
“Moreover, the defendant must demonstrate prejudice
from the alleged deficiency in the indictment.” Id.
Mr. Dooley appears to argue that the indictment failed
to satisfy the second requirement. We cannot agree.
Contrary to Mr. Dooley’s claims, each of the counts in the
indictment contained sufficient detail to put him on
notice about the nature of the Government’s accusations.
The only count that even comes close to falling short of
this requirement is Count 7, which states that Mr. Dooley
“intentionally misapplied property valued at $5000 or
more.” R.25 at 5. The description accompanying that
count does not provide specific information about the
property or how it was misapplied. This omission, how-
ever, does not render the indictment insufficient. Indict-
ments are to be read “practically and as a whole, rather
16 No. 08-4131
than in a ‘hypertechnical manner.’ ” Castaldi, 547 F.3d at
703 (quoting United States v. Fassnacht, 332 F.3d 440, 444-45
(7th Cir. 2003)). When the indictment is read as a whole,
it is clear that the property described in Count 7 is the
cash and the laptop, the misapplication of which are
described in detail in the previous counts.
In any event, Mr. Dooley has not alleged, much less
proved, that he suffered any prejudice from the alleged
infirmities in the indictment. Indeed, he never asked for
a bill of particulars. Nor does he deny that the Govern-
ment had an “open file” policy. It is clear from the
record that Mr. Dooley and his counsel understood the
Government’s allegations and were able to mount a
vigorous, albeit unsuccessful, defense at trial.
C. Exclusion of Evidence about Possible Previous
Robberies
Prior to Mr. Dooley’s appointment as the APD’s evidence
custodian, the Department moved from its old depart-
ment building to a newly constructed building—the
same building that it occupies today. The evidence vault
in the old building lacked many of the security and sur-
veillance features present in the new building. After the
move, but before Mr. Dooley became evidence custodian,
the APD conducted an evidence audit to ensure an accu-
rate accounting of all the evidence in the new vault.
This audit revealed that some items listed in the APD’s
records were not physically present in the inventory,
which raised the possibility that they might have been
stolen from the old evidence facility.
No. 08-4131 17
At trial, Mr. Dooley sought to introduce evidence
about these missing items. The court excluded the
evidence for two reasons. First, the court noted that the
inventory documents were undated and unsigned, and
therefore lacked proper foundation. The court further
concluded that, even if a foundation could be laid, the
“real problem” was that the evidence was irrelevant: The
fact that thefts might have occurred at a different, less-
secure facility, years before Mr. Dooley became evidence
custodian, had no bearing on the allegations against
Mr. Dooley. R.127 at 1494.
Mr. Dooley also sought to present evidence related to
the possible theft of some guns that once had been in the
vault but went missing after being moved to another, less-
secure part of the building. The guns had been properly
checked out of the evidence locker and slated for destruc-
tion, but no record could be found indicating that the
destruction actually took place. The court rejected this
evidence, too, because it concluded that, even if Mr. Dooley
could prove that thefts of evidence from outside of the
vault had occurred, such thefts were irrelevant to whether
someone besides Mr. Dooley could have stolen evidence
from inside the secure vault.
Mr. Dooley submits that the exclusion of this evidence
was erroneous. The Government argues that the court
did not err in excluding the evidence, and that if there
was any error, it was harmless in light of the “overwhelm-
ing” evidence of Mr. Dooley’s guilt. Appellee’s Br. 31.
We review a district court’s relevance determinations
for abuse of discretion. United States v. Gill, 58 F.3d 334,
18 No. 08-4131
337 (7th Cir. 1995). We do not believe that the court
abused its discretion in excluding evidence about the
alleged prior thefts. Mr. Dooley’s theory of defense
was that someone else had stolen the cash from the evi-
dence vault. Given the extreme security measures that
were in place in the evidence vault, it is difficult to see
how the possibility of thefts at some undetermined time
in the past from other, less-secure facilities would have
any bearing on whether Mr. Dooley’s explanation for the
theft of the money was possible. The district court there-
fore acted reasonably in excluding the proffered evidence
as irrelevant. See Fed. R. Evid. 401. Moreover, any
minimal relevance that the evidence of the alleged thefts
might have had was likely outweighed by the risk that it
would waste time and distract the jury from the central
issues in the case. See Fed. R. Evid. 403 (“Although rele-
vant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”). Given
these circumstances, the district court did not abuse its
discretion in excluding mention of the alleged prior thefts.
D. Proposed Jury Instruction
Mr. Dooley next challenges the district court’s refusal to
give a proposed jury instruction with respect to Count 2
of the indictment. Count 2 alleged that Mr. Dooley vio-
lated 18 U.S.C. § 1001(a)(2) by making a false statement
to FBI agents in an interview on May 18, 2007. In that
No. 08-4131 19
interview, the FBI agents asked Mr. Dooley if he had
stolen the Apple Macintosh laptop. Mr. Dooley told them
that he had not stolen the laptop but, rather, had pur-
chased it from the St. Louis Apple Store for $2,000 cash.
Approximately 30 minutes later, however, Mr. Dooley
changed his story and admitted to having stolen the
laptop.
At trial, Mr. Dooley requested the following jury in-
struction:
The defendant recants his false declaration when, in
the same continuous interview, he admits to investiga-
tors that his earlier declaration was false. However,
in order for the defendant to recant his testimony,
he must admit the falsities: before the interview has
been substantially affected by the statement, or
before it has become manifest to the defendant that
the false declaration has been or will be exposed to
the investigators.
R.142. The district court declined to give the requested
instruction. The jury found Mr. Dooley guilty on Count 2.
He submits that it was error for the court to decline to
give the instruction.
A defendant is entitled to a theory-of-defense jury
instruction if:
(1) the instruction represents an accurate statement of
the law; (2) the instruction reflects a theory that is
supported by the evidence; (3) the instruction
reflects a theory which is not already part of the
charge; and (4) the failure to include the instruction
would deny the appellant a fair trial.
20 No. 08-4131
United States v. Eberhart, 467 F.3d 659, 666 (7th Cir. 2006)
(quoting United States v. Buchmeier, 255 F.3d 415, 426 (7th
Cir. 2001)). Mr. Dooley’s proposed instruction fails to
satisfy the first and second requirements. The proposed
instruction was not an accurate statement of the law in
this circuit. In United States v. Beaver, 515 F.3d 730, 742 (7th
Cir. 2008), we expressly held that Ҥ 1001 contains no
recantation defense.” Mr. Dooley’s instruction also was
unsupported by the evidence in the case. The instruction
proposed a recantation defense when the defendant
recants “before it has become manifest to the defendant
that the false declaration has been or will be exposed to
the investigators.” R.142. The undisputed evidence in this
case, however, establishes that Mr. Dooley recanted his
statement about the laptop only after investigators con-
fronted him with a receipt proving that the laptop
had been purchased by the bank robber, Larry Fielding.
Thus, the facts in this case did not support the proposed
instruction.
For these reasons, the district court did not err in declin-
ing to deliver the proposed instruction.
E. Sentencing
Because we are reversing Mr. Dooley’s conviction on
Count 3, we must vacate his sentence and remand the case
for resentencing. See United States v. Shah, 559 F.3d 643,
644 (7th Cir. 2009) (“[A]lthough he received concurrent
sentences . . . , [the defendant] is entitled to a shot at
persuading the judge to give him a lighter sentence in
view of the acquittal that we are directing.”). Accordingly,
No. 08-4131 21
we need not address Mr. Dooley’s objection to the rea-
sonableness of his original sentence.
Conclusion
For the reasons set forth above, we affirm Mr. Dooley’s
conviction on all of the counts in the indictment except
Count 3. We reverse his conviction on Count 3 and remand
to the district court with instructions to enter an order
of acquittal on that count. Mr. Dooley’s sentence is
vacated and the case is remanded to the district court
for resentencing.
A FFIRMED in P ART, R EVERSED in P ART,
V ACATED and R EMANDED with INSTRUCTIONS
8-20-09