United States v. Thomas, Sheila , 510 F.3d 714 ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-Appellant,
v.
SHEILA THOMAS, JESSE LEWIS,
and KELVIN ELLIS,
Defendants-Appellants,
and
CHARLES POWELL, JR.,
Defendant-Appellant/Cross-Appellee.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30044—G. Patrick Murphy, Judge.
____________
ARGUED FEBRUARY 21, 2007—DECIDED DECEMBER 17, 2007
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
SYKES, Circuit Judges.
SYKES, Circuit Judge. The defendants in this case—four
Democratic precinct committeemen in East St. Louis,
Illinois—were convicted of election fraud crimes for
their participation in a vote-buying conspiracy during
the November 2004 election. They argue on appeal that
the evidence was insufficient to establish the existence
2 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
of a single conspiracy, and that the admission of a DVD of
a political speech given by a key government witness
was reversible error. We reject these arguments and
affirm.
The government brings a cross-appeal regarding the
district court’s refusal to apply the two-level sentencing
guidelines enhancement in U.S.S.G. § 3B1.3 for abuse of
a position of trust by defendant Charles Powell, the
chairman of the Democratic precinct committee in East
St. Louis. Powell argued in the district court that the
enhancement should not apply because the increased
Democratic voter turnout brought about by the vote-
buying scheme cannot have abused the trust of the Demo-
cratic Party, which would have desired that result. Who’s
to say, counsel argued at sentencing, “that the Democratic
Party got anything less from Mr. Powell than what [it]
expected?”
The district court did not fully credit this extraordinary
argument but rejected the enhancement anyway, based
on a variant of it; that is, the judge thought the govern-
ment should have produced a Democratic Party official to
establish that Powell was acting against the party’s
interests. This was unnecessary. One who uses a position
of trust to commit a crime has necessarily abused that
trust; the government need not prove actual harm to
the interests of those whose trust has been abused.
Stated differently, the enhancement presupposes greater
punishment is justified based on the exploitation inher-
ent in the use of a position of trust to commit a crime.
This is so regardless of the type or degree of harm caused
or the identity or even the existence of a victim. Here,
Powell’s coordination of the vote-buying scheme through
his chairmanship of the local Democratic precinct com-
mittee significantly facilitated the commission of the
crime and therefore was an abuse of a position of trust
within the meaning of § 3B1.3 of the sentencing guide-
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 3
lines. Accordingly, we vacate Powell’s sentence and
remand for application of the enhancement and resen-
tencing.
I. Background
Sheila Thomas, Jesse Lewis, Kelvin Ellis, and Charles
Powell were charged with conspiracy to commit election
fraud in violation of 18 U.S.C. § 371 and 42 U.S.C.
§ 1973i(c).1 All four defendants were Democratic precinct
committeemen in East St. Louis, Illinois. Two also held
leadership positions in the precinct committee: Powell
was committee chairman and Thomas was committee
secretary. According to the superseding indictment, the
conspiracy existed for the purpose of “knowingly and
willfully pay[ing] and offer[ing] to pay voters for voting
in the [ ] November 2, 2004 general election . . . to secure
the election of certain candidates for elective office
whom the defendants and their co-conspirators
favored . . . .” The indictment alleged that in the course
of chairing committee meetings, Powell directed com-
mitteemen to submit election-day budgets to the St. Clair
County Democratic Committee for funds to pay voters
in their precincts to vote for Democratic candidates. The
other defendants attended these meetings and partic-
ipated in the vote-buying activities as directed. In addi-
tion to the conspiracy count, Thomas, Lewis, and Ellis
were also charged with aiding and abetting election fraud
in violation of 18 U.S.C. § 2 and 42 U.S.C. § 1973i(c) for
paying and offering to pay voters on election day, Novem-
ber 2, 2004. The case proceeded to a 17-day jury trial on
these charges. We summarize the key evidence below.
1
The indictment also included charges against Yvette Johnson,
who did not proceed to trial and is not a party to this appeal.
4 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
A. Rudy McIntosh
The bulk of the prosecution’s case came from an infor-
mant named Rudy McIntosh, who at the time of the
November 2004 election was a 12-year veteran of the
East St. Louis Police Department and a newly elected
Democratic precinct committeeman. He was working
with the FBI on an unrelated investigation into certain
committeemen; in connection with that investigation, he
surreptitiously recorded an October 12, 2004 committee
meeting chaired by Powell. During the meeting, the
following discussion took place between Powell and
the committeemen present:
POWELL: [I] got people in my precinct gonna’ run
over me to come in there to vote on . . .
UNKNOWN MALE: (Laughs).
POWELL: It’s for the presidential election, you can’t
hold ’em at home, they gonna’, knock me down runnin’
up there to vote.
RUDY2: (Laughs).
POWELL: I ain’t gotta give ’em nothin. Okay. Ain’t
gotta give ’em nothin. But what you do is there are
people who you know expect something, you take
care of ’em all the time because you gonna’ need ’em
all the time.
ELLIS: That’s right.
POWELL: Now that’s the strategy behind the busi-
ness.
ELLIS: Yeah.
2
The FBI transcripts of the recordings use last names for all
individuals except the FBI informants.
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 5
POWELL: You take care of ’em all the time because
you gonna’ need ’em all the time. Look at your voters
records.
LEWIS: Right, that’s what I do.
POWELL: And that’s the purpose of handlin’ it the
way we do.
UNKNOWN MALE: It sure is.
POWELL: Now, if they expect somethin’ and you don’t
give ’em nothing, they hold it against you for life. The
rest of your life they’ll hold it against you. (Laughter)
Later in the same meeting, Powell explained to committee-
men how to prepare a budget to cover election-day voter
payments:
POWELL: Now if you’re a hundred and fifty vote
getter, add that one hundred and fifty times five
dollars. Let me tell you how they [the St. Clair County
Democratic Committee] figure it. They figure about
five dollars a vote and they know you gonna’ pay
everybody who come vote. They know you don’t
spend that amount of money recruiting voters. They
already know this but they’re willing ta’ pay it.
After this meeting, McIntosh spoke briefly about his
election-day budget with Ellis, who acknowledged the vote-
payment practice and encouraged McIntosh to “ask for
the max” in that portion of his budget.
After hearing this recording, the FBI shifted its investi-
gation to focus on the vote-buying activity in the Demo-
cratic precinct committee and worked with McIntosh to
record additional meetings and conversations. One such
conversation took place between McIntosh and Lewis on
October 18, 2004:
RUDY: . . . What are we payin’ these people to vote?
Now they in the other night talkin’ about five dollars.
I cain’t see that.
6 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
LEWIS: Usually . . . well, I’m askin’ ’em for fifteen
hundred dollars . . . fuck that. I uh—, I, I normally . . .
RUDY: (Laughs).
LEWIS: . . . said thousand. Well, hey, I’m askin’ for
fifteen hundred. Them people don’t take five dollars
no more.
....
LEWIS: Uh, you voted how many people last time and,
when you ran?
RUDY: I got close to two hundred votes.
LEWIS: Yeah.
RUDY: Right at two hundred.
LEWIS: You should ask, you figure this time you
got about two hundred fifty people.
RUDY: Easy.
LEWIS: Yeah. And ask for twelve hundred. Twelve
hundred to fifteen hundred, whatever you can make
your mouth say.
RUDY: Okay, but I’m sayin’ at that poin’, so what
are we payin’ ’em for each vote? That’s . . .
LEWIS: You pay ’em what you wanna pay ’em? You
pay ’em what, uh, you decide to pay ’em.
RUDY: Okay.
LEWIS: It ain’t ’bout that.
RUDY: Okay.
LEWIS: But I’m sayin’, you figure five dollars a vote,
at two hundred and fifty dollars a vote. That’s twelve
hundred dollars, twelve hundred fifty dollars.
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 7
After the election McIntosh also recorded a conversa-
tion with Thomas, who had been present at the earlier
committee meetings when the voter-payment plans for
the November 2 election were discussed. This conversa-
tion took place on November 10, 2004:
RUDY: Did they, ‘eh, okay, so them people out there
just blatant out voted for him or you had to take
care of them. You had to pay them?
THOMAS: We paid everybody.
....
THOMAS: Uh, Charlie [Powell’s son] took care of the
money part. Everybody schooled me on my little money
thing and now on I take care of my own money thing.
In these and other recordings, the defendants refer-
enced paying voters $5 or $10 to vote for Democratic
candidates. Beyond the recorded conversations, McIntosh
also testified about his own activities on election day
and during the weeks preceding the election. During
extensive cross-examination, McIntosh repeatedly con-
tradicted himself and was discredited on many subjects.
One such subject was his own campaign for township
supervisor in the April 2005 local election, which took
place shortly after the initial indictment in this case
was returned and McIntosh’s role in the investigation
became publicly known. McIntosh was asked on cross-
examination whether he had claimed during that elec-
tion that the FBI was supporting him; he denied it. In
response, the defense introduced a portion of a four-minute
campaign speech during which McIntosh appeared to
suggest that the FBI supported his candidacy. The govern-
ment then asked that the entire DVD of the speech be
admitted and played for the jury for purposes of provid-
ing context. The prosecutor contended that McIntosh’s
reference to the FBI was only meant to highlight the
8 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
ongoing FBI investigation and suggest that the FBI
supported lawful elections in East St. Louis.
Judge Murphy accepted the government’s characteriza-
tion of the speech and allowed the DVD to be played for
the jury in its entirety. When it became clear that the
rest of the speech was about other campaign issues and
had little to do with the prior inconsistent statements,
Powell moved to strike all but the portion that had been
used for impeachment. The judge reserved ruling, and
parts of the taped speech were replayed during the bal-
ance of the trial.
B. Dannita Youngblood
The prosecution’s other key witness, Dannita Young-
blood, also recorded conversations with Democratic
committeemen and those working with them in the
November 2004 election. Youngblood was married to
Kelvin Ellis’s nephew, and around the time the voter-
payment investigation was getting underway, she went
to the FBI to report that Ellis was engaged in fraudulent
activities in his job in the East St. Louis Office of Reg-
ulatory Affairs, where she also worked. Youngblood had
worked with Ellis in a previous election, so the FBI asked
her to record conversations while assisting him with his
voter activities in the November 2004 election. In one
of these conversations, Ellis is heard giving Youngblood
specific directions about how to instruct and pay voters
on election day. Ellis describes what Youngblood should
tell voters about which candidates to choose (including,
where necessary, teaching them how to spell “Democrat”),
and then summarizes his payment instructions as follows:
ELLIS: But I want them to initial that they under-
stand [who to vote for].
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 9
DANNITA: Okay they will initial on the precinct sheet.
Or initial this?
ELLIS: This. And you keep all those. Now why am
I havin’ them initial that?
DANNITA: I don’t know. Why?
ELLIS: So when they come back.
DANNITA: I can go in there and pay ’em. Okay.
ELLIS: Uh huh.
DANNITA: But that’s gonna’ be hard for me to keep,
oh, that’s gonna’ be hard for me to keep up with.
ELLIS: Uh huh. ’cause if their initials ain’t nowhere
they didn’t see you, they don’t see you they ain’t got
nothin’ coming.
Ellis also cautioned Youngblood to use a fake name when
dealing with voters.
In addition to the recorded conversations, Youngblood
testified she was present at the precinct committee
meetings at which the voter-payment budgets were
discussed, and also testified that she saw Ellis personally
pay numerous voters on election day. She testified
about other activities Ellis and his precinct workers
engaged in during the course of the election, including
trying to obtain additional party funds to pay voters
more than the going rate to vote for a particularly unpopu-
lar Democratic candidate, and mailing an anonymous
racist letter to Republican precinct judges in an effort
to discourage them from entering East St. Louis on
election day.
C. Other Evidence
Although the recordings and testimony of McIntosh and
Youngblood were the heart of the government’s case, the
10 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
prosecution presented other evidence to corroborate the
voter-payment scheme. The government introduced
Thomas’s grand jury testimony, in which she admitted
attending the committee meetings chaired by Powell and
submitting a voter-payment budget to him in accordance
with the methods described at the committee meetings.
Three voters testified to receiving payments from Powell
or one of his precinct workers after voting in the November
2004 election. One voter testified to receiving a payment
in Thomas’s precinct, although he couldn’t identify
Thomas by name or face. Three witnesses testified to
being present at the committee meetings chaired by
Powell in the weeks prior to the election and said they
understood Powell to be encouraging them to submit
budgets for paying voters for their votes. One committee-
man also testified that Powell brought a speaker to a
2002 precinct committee meeting to instruct committee-
men how to pay voters without getting caught.3
FBI Agent John Jimenez also testified about his role
in the investigation into the vote-buying conspiracy. He
testified that he interviewed Lewis, who admitted to
using his party election-day budget money to pay voters
directly or buy them items such as cigarettes, alcohol, and
medicine in exchange for voting. Jimenez also interviewed
Powell, who attempted to explain away the $5- or $10-per-
voter amounts that precinct workers were told to in-
clude in their election-day budgets. He initially said the
$5 or $10 figure meant that each voter was considered
an election worker. Later he said that amount actually
represented $5 or $10 per household because one member
of each household was responsible for ensuring all other
3
As the indictment concerned only the 2004 election, this
evidence was submitted for the limited purpose of demonstrat-
ing that Powell’s activities and instructions had not been
misunderstood.
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 11
members of the household voted. Powell then denied he
ever directed or encouraged committeemen or party
workers to pay voters for their votes.
D. Conclusion of Trial
During closing argument, the government replayed the
DVD of McIntosh’s 2005 campaign speech. The defendants
objected, and this time the judge held that the speech
should not have been admitted in its entirety:
The idea that this was just played to the jury to show
context was ludicrous. What this is is an attempt to
bolster the credibility of this particular witness by
his bias[ed], self-serving, political statements. It has
nothing to do with showing the context of the prior
inconsistent statement. . . . [T]here is nothing I can do.
The Court committed error.
The court gave the jury the following instruction on
evidence of multiple conspiracies:
You may judge the defendants only on the charges
alleged in the Superseding Indictment. You may not
convict them of any other conspiracy in the event you
should conclude that they have engaged in some
other conspiracy. Therefore, if you are not convinced
beyond a reasonable doubt that a particular defen-
dant knowingly and willfully joined the conspiracy
alleged in the Superceding Indictment, you must find
that defendant not guilty of the charge contained in
Count 1.
Even if you find that a particular defendant know-
ingly and willfully joined a conspiracy other than that
alleged in the Superseding Indictment, you should,
nevertheless, find that defendant guilty of the
charge alleged in the Superseding Indictment if you
12 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
are convinced beyond a reasonable doubt that the
defendant knowingly and willfully joined the single
overall conspiracy that is alleged in the Supersed-
ing Indictment and the elements of which are other-
wise contained in these instructions.
The defendants were convicted on all counts. They moved
for a new trial on numerous grounds, all of which were
rejected. On the issue of the DVD of McIntosh’s campaign
speech, the judge reiterated his conclusion that playing
the DVD in its entirety was error as it “did not in any
way explain or give context to the inconsistent state-
ment. Rather, it was a self-congratulatory stemwinder of
a political speech.” There was no prejudice, however; the
judge thought McIntosh had been so extensively and
effectively cross-examined that the erroneous introduc-
tion of the campaign speech could not have made a differ-
ence in the jury’s assessment of his credibility. In the
district court’s view, the case turned not on McIntosh’s
credibility but on the defendants’ own statements in the
recorded conversations.
E. Powell’s Sentencing4
Powell was the last defendant to be sentenced. He
objected to the application of a two-level enhancement
under U.S.S.G.§ 3B1.3 for abuse of a position of trust—an
enhancement all his codefendants had received. Powell
argued that the enhancement should not apply because
his chairmanship of the East St. Louis Democratic
precinct committee made him responsible to the Demo-
cratic Party, and he had not abused its trust because
he acted in accordance with the party’s interests by
4
Only Powell challenges his sentence; we will not address
the details of the other defendants’ sentences.
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 13
increasing Democratic voter turnout. Initially the judge
disagreed and said the enhancement would apply. Sen-
tencing was then recessed to give Powell time to present
a witness in support of a lower sentence.
When Powell’s sentencing hearing resumed two weeks
later, the issue of the abuse-of-trust enhancement was
revisited. Powell’s counsel reiterated his position that
the vote-buying conspiracy did not amount to an abuse
of the Democratic Party’s trust:
The Democratic Party sent money down there [to East
St. Louis]. The Republican Party sent money down
there. And they darn well know how that money is
used, and with respect to poor people. . . . [T]here
is nothing wrong with people voting, and, as a matter
of fact, it should be encouraged. A reward was given.
That’s the evidence before you. A reward was given
to people who exercised their franchise. Not only
didn’t [Powell] violate any trust, there is nothing
immoral about what he did. . . . Okay, what is the
trust? Who[’s] to say . . . if [the prosecutor] wants to
argue that [a trust was abused,] he should call Demo-
cratic Party officials to say we didn’t give Mr. Powell
the money for the reason that it be distributed.
After this argument, the judge announced he would not
apply the § 3B1.3 enhancement after all:
[A]s to the legal issue itself on whether the defen-
dant should get the two points for the position of trust.
I’ve changed my mind. He doesn’t get it. . . . Whether
it’s a trust or not there’s no showing that there was
any breach of trust. The government has the burden
on that. Somebody would have to come in here
I suppose and say we didn’t want Powell to do that. . . .
In the alterative I note, too, that he has been marked
up for being a leader and while he can be given points
for both it is not required. And I just think that any
14 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
points he gets for a leader to include on top of that that
he violated a position of public trust and it furthered
the crime would be double counting, and he doesn’t get
it.
Removing the § 3B1.3 enhancement reduced Powell’s
advisory sentencing guidelines range from 27-33 months’
imprisonment to 21-27 months’ imprisonment. Powell
was then sentenced to 21 months in prison, the bottom of
the advisory range.
II. Discussion
Thomas challenges her convictions on three grounds:
(1) there was a fatal variance between the indictment
and the conspiracy evidence introduced at trial; (2) the
district court committed reversible error in admitting the
DVD of McIntosh’s political speech; and (3) there was
insufficient evidence to support her conviction for aiding
and abetting election fraud. Powell, Ellis, and Lewis join
Thomas’s first two arguments. The government cross-
appeals on the issue of Powell’s sentence, arguing that the
district court miscalculated the advisory sentencing
guidelines range by refusing to apply the two-level en-
hancement in U.S.S.G. § 3B1.3 for abuse of a position of
trust.
A. Variance and Sufficiency-of-the-Evidence Claims
“[A] conspiracy variance claim amounts to a challenge
to the sufficiency of the evidence supporting the jury’s
finding that each defendant was a member of the same
conspiracy.” United States v. Townsend, 924 F.2d 1385,
1389 (7th Cir. 1991). As with all sufficiency-of-the-evidence
claims, we consider the evidence supporting the charged
conspiracy in the light most favorable to the government.
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 15
See United States v. Handlin, 366 F.3d 584, 589 (7th Cir.
2004).
The defendants maintain they were not all members of
a single conspiracy because the evidence regarding Ellis’s
activities beyond the charged vote-buying conspiracy—such
as trying to intimidate Republican precinct judges from
coming to East St. Louis and seeking additional voter-
payment funds to elect a particular unpopular Democratic
candidate—did not implicate them. This does not estab-
lish a fatal variance from the indictment. “ ‘[E]ven if the
evidence arguably establishe[d] multiple conspiracies,
there [is] no material variance from an indictment charg-
ing a single conspiracy if a reasonable trier of fact could
have found beyond a reasonable doubt the existence of the
single conspiracy charged in the indictment.’ ” Townsend,
924 F.2d at 1389 (quoting United States v. Prince, 883
F.2d 953, 959 (11th Cir. 1989)). The district court properly
instructed the jury on the law regarding multiple con-
spiracies, see United States v. Severson, 3 F.3d 1005, 1011
(7th Cir. 1993), so the jury’s verdict will stand as long
as there is sufficient evidence to prove each defendant
participated in the charged conspiracy—that is, the
conspiracy to pay voters in East St. Louis on election day,
November 2, 2004.
We begin with Powell. While chairing multiple Demo-
cratic precinct committee meetings in the weeks before
the election, Powell spoke openly of how to “take care” of
voters who “expect something” in exchange for their vote.
He instructed committeemen how to calculate election-day
budgets to be submitted to the St. Clair County Democratic
Committee based on “about five dollars a vote” to “pay
everybody who come vote.” Committeemen present at those
meetings testified that they understood Powell to be
instructing them to use election-day budget funds from the
Democratic Party to pay voters in their precincts to vote
for the party’s candidates, and many acted in accordance
16 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
with his instructions. Powell maintains he did not know he
was being interpreted in this way, but this claim is utterly
implausible—on its own, based on the words he used and
context in which he spoke, and also in light of the corrobo-
rating evidence presented at trial. The latter includes: (1)
the conflicting and unlikely explanations he gave the FBI
about the use of election-day budget funds; (2) testimony
that Powell himself paid people to vote in his precinct; and
(3) testimony that he had presented a speaker at a 2002
precinct committee meeting to instruct committeemen how
to pay voters without getting caught. The evidence against
Powell was overwhelming, easily sufficient to support the
jury’s conclusion that he knowingly conspired with East
St. Louis Democratic committeemen to pay voters for the
purpose of increasing the vote for Democratic candidates
in the November 2004 election.
The evidence against Lewis is also overwhelming. He
was present and participated in the precinct committee
meetings at which election-day budgets for vote buying
were discussed. On one of the recordings he can be heard
saying, “Right, that’s what I do,” in response to Powell’s
instructions about committeemen “tak[ing] care of ” their
voters. In another recording he instructs McIntosh: “You
pay [voters] what you wanna pay ’em. . . . [Y]ou figure
five dollars a vote.” As if this were not enough, Lewis
admitted to Agent Jimenez that he used his election-day
budget money to pay voters or buy them items of value
after they voted in his precinct. The evidence was more
than sufficient to establish Lewis’s participation in the
East St. Louis vote-buying conspiracy in the November
2004 election.
The same can be said of Ellis. He was also present at
the precinct committee meetings and can be heard on one
recording agreeing with Powell’s instructions about “taking
care of ” voters. During a recorded conversation with
Youngblood, Ellis is heard giving her detailed directions
about the precinct committee’s vote-buying practices,
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 17
including specific instructions on how to keep track of
voters who were entitled to payment: “[I]f their initials
ain’t nowhere they didn’t see you [before voting], they
don’t see you [before voting] they ain’t got nothin’ comin.”
Although there was additional evidence about Ellis’s
involvement in other questionable election practices,
the jury was properly instructed regarding evidence of
multiple conspiracies, and the evidence establishing
Ellis’s participation in the charged vote-buying conspiracy
was substantial.
Finally, ample evidence supports Thomas’s conspiracy
conviction. In her grand jury testimony, properly admitted
at trial, Thomas admitted she was present at the precinct
committee meetings in October 2004 at which Powell
discussed the payment of voters and also acknowledged
submitting an election-day budget in accordance with
Powell’s instructions. Thomas’s recorded statements—“we
paid everybody” on election day and “everybody schooled
me on my little money thing and [from] now on I take
care of my own money thing”—are not susceptible of an
innocent explanation. Thomas also raises a separate
challenge to the sufficiency of the evidence to support her
conviction for aiding and abetting election fraud by pay-
ing voters in her East St. Louis precinct. We will “defer[ ]
to the credibility determinations of the jury, and . . .
overturn a verdict only when ‘the record contains no
evidence, regardless of how it is weighed, upon which a
rational trier of fact could find guilt beyond a reasonable
doubt.’ ” United States v. Cummings, 395 F.3d 392, 397
(7th Cir. 2005) (quoting United States v. Starks, 309
F.3d 1017, 1021 (7th Cir. 2002)). Thomas’s grand jury
testimony and recorded statements—“we paid everybody”
and references to “my little money thing”—can only be
understood as admissions that she paid voters to vote for
the Democratic Party’s candidates in the November 2004
election. Add in the testimony of the East St. Louis voters
18 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
who received payments from Democratic precinct com-
mitteemen or volunteers working for them, and the
evidence is easily sufficient to sustain Thomas’s convic-
tion for aiding and abetting election fraud.
B. Admission of McIntosh’s Political Speech
The defendants next maintain that the admission of
McIntosh’s full campaign speech constituted reversible
error because it improperly bolstered McIntosh’s testi-
mony. Generally, improper bolstering occurs when evi-
dence is introduced with the intent of lending official
credibility to the government’s witnesses or case. See, e.g.,
United States v. Cunningham, 462 F.3d 708 (7th Cir. 2006)
(admission of DEA agent’s testimony regarding extensive
procedural checks necessary to obtain a wiretap was
reversible error because it improperly implied numerous
other government officials believed the defendant guilty).
The only portion of McIntosh’s speech that comes even
remotely close to lending him official credibility as a
witness is the passage in which he suggests the FBI
supported his candidacy, and this is the portion the
defendants admitted as a prior inconsistent statement.
The balance of the speech—that is, the part the defend-
ants objected to—contains nothing but McIntosh’s own
self-serving statements about campaign issues com-
pletely outside the scope of the trial.
Although these statements were irrelevant and hardly
necessary for context, as the prosecution had suggested,
we agree with the district court that they were not prej-
udicial. McIntosh’s credibility had already taken a beat-
ing in a lengthy and effective cross-examination. Nothing
about his political speech served to rehabilitate him as a
witness. His main role in this case was to capture the
defendants’ conversations on tape and authenticate
the recordings at trial; whether the jury found his inde-
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 19
pendent accounting of the recorded events credible was
not nearly as important as the defendants’ own words on
the recordings. Indeed, although the district judge found it
“impossible to imagine that the jurors credited
Mr. McIntosh’s testimony beyond what was absolutely
compelled by other corroborated evidence,” he correctly
held that the erroneous admission of McIntosh’s speech
was harmless.
C. Abuse-of-Trust Enhancement
The sentencing guidelines call for a two-level increase
in offense level “[i]f the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the of-
fense . . . .” U.S.S.G. § 3B1.3. We review the district
court’s interpretation of § 3B1.3 de novo and its factual
findings for clear error. See United States v. Stewart, 33
F.3d 764, 768 (7th Cir. 1994). The enhancement applies
if Powell: (1) occupied a position of public or private
trust; and (2) abused the position of trust to significantly
facilitate or conceal the commission of the crime. United
States v. Andrews, 484 F.3d 476, 479 (7th Cir. 2007).
As an initial matter, we do not share the district court’s
concern about double counting if both the abuse-of-trust
and the leadership enhancements are applied. Powell
received a leadership enhancement under U.S.S.G. § 3B1.1
for his role in the conspiracy; the guidelines explicitly
contemplate that an abuse-of-trust enhancement may
be applied on top of a leadership enhancement. See
U.S.S.G. § 3B1.3 (“If this adjustment is based upon an
abuse of a position of trust, it may be employed in addi-
tion to an adjustment under § 3B1.1 [which includes
leadership enhancements].”). Application of both cannot
be considered double counting as long as each is war-
ranted. The government did not seek the leadership
20 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
enhancement on account of Powell’s leadership role in
the committee, but rather on account of his leadership
role in the conspiracy. Whether he used his position as
chairman of the Democratic precinct committee to perpe-
trate this crime is distinct from his leadership role in
the offense; these separate attributes of Powell’s crime
may result in separate offense-level sentencing enhance-
ments.
Although the district court expressed some uncertainty
regarding whether Powell held a position of public trust,
there is no doubt he at least held a position of private
trust as the elected chairman of the East St. Louis Demo-
cratic precinct committee. See Andrews, 484 F.3d at 479(“The § 3B1.3 adjustment applies not only to public
positions of trust, but also to private positions of trust.”);
see, e.g., United States v. Ellis, 440 F.3d 434, 437 (7th Cir.
2006) (bishop holds private position of trust toward
church); United States v. Bhagavan, 116 F.3d 189, 193 (7th
Cir. 1997) (president of corporation holds private posi-
tion of trust toward shareholders). It is clear as well that
Powell used his position as chairman to instruct other
committeemen to pay voters on election day and to submit
budgets reflecting $5 or $10 per vote for that purpose. This
“significantly facilitated” the offense within the meaning
of § 3B1.3 by “ma[king] it substantially easier to commit
or conceal the crime.” United States v. Sierra, 188 F.3d
798, 802 (7th Cir. 1999).
Nonetheless, the district court rejected the enhancement
on the theory that there was no proof that Powell abused
his position of trust. Powell’s counsel argued that the
enhancement should not apply because the vote-buying
conspiracy in the East St. Louis Democratic precinct
committee was consistent with the interests of the Demo-
cratic Party in that it increased Democratic voter turnout.
Judge Murphy initially rejected this argument but later
changed his mind, believing that the government was
Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900 21
required to present testimony from a Democratic Party
official to establish that Powell’s activities were contrary
to the party’s interests. There is no such requirement in
§ 3B1.3. A position of trust carries with it an assumption
that the person entrusted with the position will act
in accordance with the law. Indeed, we have described
a position of trust as one in which the defendant was
“trusted [by others] to act in their interests and in accor-
dance with law.” Andrews, 484 F.3d at 480 (emphasis
added). The enhancement presupposes that one who
uses a position of trust to significantly facilitate the
commission of a crime has abused that trust—that is, has
acted contrary to the interests of those who have en-
trusted him with the position. Lawbreaking in the exer-
cise of a position of public or private trust is necessarily
an abuse of that position.
We have previously held that the abuse-of-trust enhance-
ment “does not require a particular ‘victim’ relationship
between the criminal and the person or group whose trust
has been abused.” Ellis, 440 F.3d at 437 (affirming en-
hancement for bishop who committed tax fraud despite
evidence that his church benefitted financially from his
actions); see also United States v. Cruz, 317 F.3d 763, 766
(7th Cir. 2003) (“Courts may apply the abuse of trust
enhancement even if the defendant did not occupy a
position of trust in relation to the victim of the offense of
conviction . . . .”). Accordingly, the government need not
prove actual harm to the interests of those whose trust
has been abused in order for § 3B1.3 to apply; in some
cases, the harm may be visited upon someone outside
the trust relationship. Cf. United States v. Fife, 471 F.3d
750, 753 (7th Cir. 2006) (although federal government
was direct victim of a city official’s tax fraud, official
abused city’s trust by committing the crime); Cruz, 317
F.3d at 766-67 (affirming application of the enhance-
ment where defendant used her position as office man-
22 Nos. 06-1381, 06-1488, 06-1555, 06-1601 & 06-1900
ager of a small company to defraud the company’s banks.).
In other cases, the harm from the abuse of trust may be
intangible. That is certainly the case here. But there is
nothing in § 3B1.3 that requires the government to prove
that the defendant’s conduct “victimized” those whose trust
he abused in the commission of the crime.
Accordingly, the government was not required to produce
a Democratic Party official to specifically disavow Powell’s
flagrantly illegal mode of increasing Democratic voter
turnout in East St. Louis. The district court misinter-
preted § 3B1.3 in holding to the contrary. Powell used his
position as chairman of the East St. Louis Democratic
precinct committee to direct a vote-buying conspiracy
in connection with the November 2004 election. That is
an abuse of a position of trust within the meaning of
§ 3B1.3; the two-level enhancement should have been
applied.
Accordingly, we VACATE Powell’s sentence and REMAND
for resentencing with application of the §3B1.3 enhance-
ment. In all other respects, the defendants’ convictions
and sentences are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-17-07