United States v. Ondray McKnight , 665 F.3d 786 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2297
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
O NDRAY McK NIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cr-00263-4—Rebecca R. Pallmeyer, Judge.
A RGUED S EPTEMBER 29, 2011—D ECIDED N OVEMBER 22, 2011
Before R IPPLE, M ANION and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. After a four-year investigation
by the Drug Enforcement Administration (“DEA”) and
the Chicago Police Department, a grand jury indicted
Ondray McKnight and six codefendants for various
offenses arising from the organized distribution of con-
trolled substances. Mr. McKnight was charged with one
count of conspiracy to distribute a controlled substance,
21 U.S.C. § 846, and two counts of using a communication
2 No. 10-2297
facility (a telephone) to distribute a controlled sub-
stance, 21 U.S.C. § 843(b). Mr. McKnight pleaded not
guilty, and a jury convicted him on the conspiracy and one
of the communication counts. He was acquitted of the
other communication count. The district court sen-
tenced Mr. McKnight to 300 months’ imprisonment to be
followed by a ten-year term of supervised release. It also
imposed a fine of $1,000, which it ordered paid through
the Inmate Financial Responsibility Program (“IFRP”).
Mr. McKnight now appeals. He claims that a jury in-
struction relating to the Government’s use of deceptive
investigative practices was improper and confusing.
He also challenges the district court’s order that he par-
ticipate in the IFRP. We conclude that the district court
acted within its discretion in giving the instruction and
that, in any event, the instruction was not prejudicial to
Mr. McKnight. Further, the parties correctly agree that
participation in the IFRP is voluntary and that the sentence
must be modified in that respect. Accordingly, we affirm
Mr. McKnight’s conviction and modify his sentence
with regard to the IFRP.
I
BACKGROUND
A. Facts
In 2003, a confidential informant provided information
to the DEA that led to an investigation of Victor Thomp-
son, a high-ranking member of the Gangster Disciples
gang. Thompson managed a drug distribution network
No. 10-2297 3
that operated in a residential neighborhood on the south
side of Chicago.1 Thompson’s network included various
other individuals—some gang members, some not—who
worked as dealers selling heroin, cocaine base and mari-
juana; suppliers providing drugs either directly to
dealers or to Thompson for repackaging; and lookouts
to warn other members of the conspiracy of nearby
police officers. Members of Thompson’s network fre-
quently carried firearms and allegedly were involved in,
although not indicted for, theft, robbery, kidnapping and
other crimes.
During their four-year investigation into Thompson’s
network, DEA agents and officers of the Chicago Police
Department gathered evidence by using techniques that
have become common in the drug context: confidential
informants, undercover officers, controlled buys, sur-
veillance and wiretapping. As part of that effort, the
Government obtained wiretap warrants in 2006 for
several phones, including one belonging to Shawn
Denton, who later became the Government’s chief wit-
ness in this case. Law enforcement agents intercepted
hundreds of phone calls related to the conspiracy. They
also conducted controlled buys from numerous
members of Thompson’s network, including Denton,
but none from Mr. McKnight.
1
Thompson’s network was based near the intersection of
116th Street and Stewart Avenue, but extended south from
115th Street to 119th Street and east from Halsted Street to
Wentworth Avenue.
4 No. 10-2297
The investigation ended in 2007, with the Government’s
filing a criminal complaint against eight individuals. A
grand jury returned a thirty-count indictment against
Mr. McKnight and six codefendants that included charges
of conspiracy, narcotics distribution, using telephones
in furtherance of the conspiracy and weapons offenses.
Thompson and Mr. McKnight’s other codefendants
accepted plea agreements at various points in the pro-
ceedings. Mr. McKnight pleaded not guilty and proceeded
to trial.
B. District Court Proceedings
At Mr. McKnight’s trial, the Government introduced
the testimony of three witnesses: DEA Agent Fernando
Cervantes, who testified about the investigation of the
Thompson drug operation; DEA chemist Robert Krefft,
who testified very briefly and generally about cocaine
and cocaine base (or “crack”); and Denton. Denton, who
had been indicted on six charges, was cooperating with
the Government in exchange for a favorable sentencing
recommendation. As the Government’s principal witness
at trial, Denton provided testimony about the Gangster
Disciples, Thompson’s drug operation and Mr. McKnight’s
specific role in it, as well as his interpretation of the
wiretap recordings.
Denton testified that Mr. McKnight began supplying
Thompson’s network with drugs in 2006. Mr. McKnight
originally paid Thompson a weekly fee of $1,500 to pro-
vide Thompson’s dealers with heroin, cocaine base
and marijuana. After three months, Thompson sought to
No. 10-2297 5
increase his share of the profit by having Mr. McKnight
supply him with wholesale quantities of heroin, which
he would then repackage and distribute to his dealers.
Mr. McKnight continued to supply Thompson’s dealers
directly with cocaine base and marijuana.
During Denton’s direct examination, the Government
played for the jury (and provided transcripts of) thirty-
seven phone calls related to the conspiracy. Denton
testified that he and other members of Thompson’s net-
work spoke in code to avoid detection by police; he
deciphered these recorded conversations for the jury.2
Denton also identified Mr. McKnight as a participant in
twenty-eight of the calls and a topic of conversa-
tion in another seven calls, all of which implicated
Mr. McKnight in illegal activity.
The Government also played recordings from several
controlled buys in which an informant purchased drugs
from Denton while wearing a hidden microphone.
Denton identified Mr. McKnight as the source of the
drugs he sold to the informant in those transactions.
Counsel for Mr. McKnight sought to undermine
Denton’s testimony as self-serving and unreliable.
Throughout the trial, counsel focused on Denton’s crim-
inal activities and the favorable sentencing recommenda-
2
For example, Denton testified that the phrase “our side”
referred to crack. Trial Tr. vol. 2, 193, 203, Oct. 6, 2009.
Similarly, Denton testified that “on the other side” meant
heroin, id. at 202-03, and “personal” and “girlfriend” were
code words for a firearm, id. at 221-23.
6 No. 10-2297
tion he expected to receive from the Government in
exchange for his testimony. Mr. McKnight did not put on
any evidence.
During the jury instruction conference, the Govern-
ment proposed the following jury instruction:
Sometimes the government uses undercover
agents and undercover informants who may
conceal their true identities in order to investigate
suspected violations of law. In the effort to
detect violations of the law, it is sometimes neces-
sary for the government to use ruses, subterfuges
and employ investigative techniques that deceive.
It is not improper or illegal for the government
to use these techniques, which are a permissible
and recognized means of criminal investigation.
Whether or not you approve of such techniques[]
should not enter into your deliberations
in any way.
R.227 at 38.
Mr. McKnight’s attorney objected, contending that
the principal case on which the Government relied to
support the instruction, Lewis v. United States, 385 U.S. 206(1966), was inapposite and that the defense had not
called the Government’s investigative techniques into
question. The Government responded, “Judge, this is in
here because, of course, the government did put on evi-
dence of wiretaps and undercover agents and informants.
And some jurors have issues with the government’s
use of those techniques in general.” Trial Tr. vol. 3, 394,
Oct. 7, 2009. Without further discussion, the district court
No. 10-2297 7
overruled the objection, stating, “I have given this in-
struction before. I don’t think it’s particularly problem-
atic.” Id. The district court included the language, with
minor technical and grammatical adjustments, in its
final instructions to the jury.
The jury convicted Mr. McKnight of conspiracy to dis-
tribute a controlled substance and of one count of using
a communication facility to distribute a controlled sub-
stance. After denying Mr. McKnight’s motion for judg-
ment of acquittal and subsequent motion for reconsidera-
tion, the district court sentenced him to 300 months’
imprisonment for conspiracy and 48 months’ imprison-
ment for the communication count, to be served concur-
rently, followed by a ten-year term of supervised re-
lease. The court further imposed a special assessment
of $200, due immediately, and a fine of $1,000 to be
paid from prison earnings through the IFRP.
II
DISCUSSION
Mr. McKnight raises two arguments on appeal. First,
he claims that the district court erred by giving the Gov-
ernment’s proposed “deceptive investigative tech-
niques” jury instruction and that the error was suf-
ficiently substantial to have prejudiced the outcome of
his trial. Second, he challenges the district court’s order
that he participate in the IFRP.
8 No. 10-2297
A. Deceptive Investigative Techniques Instruction
At issue is the instruction that advised the jury that
deceptive investigative techniques are lawful and that
forbade jurors from letting their personal disapproval of
such techniques influence their deliberations in any way.
Mr. McKnight contends that the instruction is not an
accurate statement of the law and is unsupported by the
record. He claims that giving the instruction prejudiced
his defense by confusing the jury about its obliga-
tion to evaluate Denton’s credibility. The Government
counters that the instruction is supported by Lewis, 385
U.S. at 208-09, and that, in any event, the instruction did
not prejudice Mr. McKnight’s defense.
We engage in a limited review of jury instructions,
asking only “ ‘if the instructions as a whole were
sufficient to inform the jury correctly of the applicable
law.’ ” United States v. Curry, 538 F.3d 718, 731 (7th Cir.
2008) (quoting United States v. Woods, 148 F.3d 843, 849 (7th
Cir. 1998)). “We . . . review de novo whether a particular
instruction was appropriate as a matter of law.” United
States v. Borrasi, 639 F.3d 774, 781 (7th Cir. 2011). “ ‘If the
instructions are adequately supported by the record and
are fair and accurate summaries of the law, the instruc-
tions will not be disturbed on appeal.’ ” Curry, 538 F.3d at
731 (quoting United States v. Lanzotti, 205 F.3d 951, 956
(7th Cir. 2000)). We review the district court’s decision to
give a particular instruction for an abuse of discretion,
United States v. Tanner, 628 F.3d 890, 904 (7th Cir. 2010),
affording substantial discretion to its choice of wording,
United States v. Noel, 581 F.3d 490, 499 (7th Cir. 2009).
No. 10-2297 9
Reversal is warranted “only if it appears both that the
jury was misled and that the instructions prejudiced the
defendant.” Curry, 538 F.3d at 731; see also Borrasi, 639
F.3d at 781.
1.
Mr. McKnight contends that our decision in United
States v. Childs, 447 F.3d 541 (7th Cir. 2006), demonstrates
that the jury instruction in question is an inaccurate
statement of the law. He submits Childs as support for
the proposition that the jury may consider the investiga-
tive techniques of law enforcement in its deliberations.
We cannot accept this reading of Childs.
In Childs, the Government relied on the testimony of
several informants who, after purchasing drugs in con-
trolled buys at the behest of law enforcement, had con-
cealed some of the drugs for their own use. Although the
prosecutor knew of this well in advance of trial, the
Government failed to share that impeachment informa-
tion with the defendant before trial. Id. at 542-44. We
held that the prosecutor had failed to turn over Brady
material, but concluded that the defendant was not preju-
diced by the failure. Id. at 545. Despite the prosecutor’s
complicity, the information came out at trial, and the
defendant was able to use it to impeach the Govern-
ment’s witnesses. Id. The issue of whether the jury can
consider the Government’s use of deceptive investigative
techniques simply was not before us in Childs.
The Government relies primarily on Lewis, 385 U.S. at
208-09, to support the legal accuracy of the instruction.
10 No. 10-2297
In Lewis, the Supreme Court held that a federal
narcotics agent did not violate the Fourth Amendment
when he misrepresented his identity and conducted
an undercover purchase of narcotics from the defendant
in the defendant’s home. Id. at 206-07. The Supreme
Court noted that “it has long been acknowledged . . . that,
in the detection of many types of crime, the Government
is entitled to use decoys and to conceal the identity of
its agents.” Id. at 208-09 (internal citations and footnote
omitted); see also United States v. Peters, 153 F.3d 445, 464
(7th Cir. 1998) (Easterbrook, J., concurring) (“Police
engage in deceit all the time in order to induce suspects
to reveal evidence. . . . Deception plays an important
and legitimate role in law enforcement.”).
We believe that the Government’s position is correct.
Although Lewis did not address specifically jury instruc-
tions, we believe the Supreme Court’s holding makes
quite clear that the statement of law contained in the
instruction before us is correct.
2.
We now turn to Mr. McKnight’s further contention
that the instruction, even if a correct statement of the
law, was not appropriate in the context of this case.
In Mr. McKnight’s view, the instruction barred
the jury from evaluating fully the credibility of Denton’s
testimony about Thompson’s operations and about the
meaning of coded telephone calls recorded during the
investigation. He submits that the instruction effectively
No. 10-2297 11
permitted Denton to lie about Thompson’s operations
and about the interpretation of the phone calls. The
jury was prohibited from considering, Mr. McKnight
continues, that Denton could have been lying about the
interpretation of those calls because his interpretation
was also part of the investigation.
For its part, the Government takes the view that
the district court simply recognized that the jurors were
aware of the deceptive techniques employed by the
Government and that some jurors might be expected
to have negative opinions about the Government’s en-
gaging in such practices. It contends that the district
court acted well within its discretion in giving the in-
struction in order to ensure that the jurors understood
that their disapproval of the Government’s methodo-
logies was not relevant to their task.
We approach our review of the district court’s decision
mindful that tailoring jury instructions to ensure that
the case is submitted to the jury in a full and fair manner
is a quintessential task of the trial court. See Noel, 581
F.3d at 499 (“We . . . give the district court substantial
discretion to formulate the instructions . . . .”). The
judicial officer who presides over the entire trial pro-
ceedings, observes the witnesses, hears the substance
and tone of counsels’ arguments and both watches and
assesses the jury’s reactions is in the best position to
determine the need for, and the scope of, any cautionary
instructions with respect to the evidence. See Curry, 538
F.3d at 728.
We think that the decision as to whether to give this
particular instruction is especially within the province
12 No. 10-2297
of the presiding trial judge. There will be times when
circumstances arising during trial will counsel in favor
of giving such an instruction. Some of these occurrences
may be perceptible to us from the trial record; others,
such as the facial expressions of the jurors or similar
manifestations of disapproval, will be apparent only to
the trial judge. At times, circumstances grounded in
recent local events or local culture, of which the trial
judge is especially cognizant, similarly might make the
giving of such an instruction prudent. A trial court’s
obligation includes taking note of all such situations
and acting to preserve the integrity of the record.
As the Government notes, this type of instruction is not
new to this Circuit. In United States v. Shields, No. 90 CR
1044, 1992 WL 43239 (N.D. Ill. Feb. 20, 1992), Judge Rovner
gave a similar instruction 3 and, on a post-trial motion
3
The relevant instructions in Shields were as follows:
The government has offered evidence in the form
of tape recordings of conversations with the defen-
dants. These recordings were made without the knowl-
edge of the defendants, but (1) either with the consent
and agreement of one or the other parties to the con-
versations, (2) by order of a judge in this building.
The use of these procedures to gather evidence is
perfectly lawful and the government is entitled to use
the tape recordings in this case.
***
You have heard testimony from a cooperating
witness who was employed by the government in an
(continued...)
No. 10-2297 13
for acquittal, determined that the instruction was appro-
priate because
[t]he defendants themselves tended to place the
propriety of the government’s investigative tech-
niques in issue at trial through their repeated ad
hominem attacks upon [the Government’s cooperat-
ing witness], references to him being “pro-
grammed” by the government, and description of
[a lawsuit filed by the FBI to ferret out corruption
in the Illinois judicial system] as a “phony case.”
Id. at *19.4 In Shields, the defendant challenged the Gov-
3
(...continued)
undercover capacity. There is nothing improper or
illegal with the government using these techniques.
Indeed, certain types of evidence would be extremely
difficult to detect without the use of such witnesses.
Whether or not you approve of the use of undercover
work to defect [sic: detect] unlawful activities is not
to enter into your deliberations in any way. If you are
satisfied beyond a reasonable doubt that the defendants
committed the offenses charged in the indictment, the
circumstance that the government made use of under-
cover work is irrelevant to your determination.
United States v. Shields, 90 CR 1044, 1992 WL 43239, at *19 (N.D.
Ill. Feb. 20, 1992) (alterations in original).
4
The parties have identified no appellate case where a similar
instruction has been evaluated against a similar challenge.
The closest instruction appears to be in United States v. Carona,
(continued...)
14 No. 10-2297
ernment’s use of deceptive investigative techniques. That
factor no doubt constituted a more obvious case for
judicial guidance to the jury. Yet the absence of such a
factor in the present case does not, of course, absolve the
presiding judicial officer from deciding whether the
jury’s knowledge of the use of such techniques might
affect the integrity of the jury’s deliberations.
At first glance, it might appear that the decision to
give this instruction would be a rather straightforward
one. After all, the techniques employed by the Govern-
ment in this case are common investigative practices,
4
(...continued)
630 F.3d 917, 924 (9th Cir. 2011), amended by No. 09-50235, ___
F.3d ___, 2011 WL 5041911 (9th Cir. Oct. 25, 2011), in which
the jury was informed “that the government ‘is not precluded
from engaging in stealth and deception, such as the use of
informants, in order to apprehend persons who have engaged
in criminal activities.’ ” The defendant in Carona had alleged
prosecutorial misconduct, specifically, that a confidential
informant was used to obtain information from the defendant
after the defendant retained an attorney to represent him
during the investigation and prosecution. The appellate court
found that there was no misconduct, and, therefore, that the
district court did not abuse its discretion in limiting the de-
fendant’s request to introduce evidence of the alleged mis-
conduct. The Ninth Circuit held that it was “[s]imilarly” not
an abuse of discretion for the district court in that case to
instruct the jury that the Government may lawfully engage
in deceptive investigation techniques. Id.No. 10-2297 15
used to investigate all manner of crimes.5 Such tech-
niques are particularly prevalent in dealing with “orga-
nized criminal activities that are characterized by covert
dealings with victims who either cannot or do not pro-
test.” Lewis, 385 U.S. at 210. Narcotics trafficking is a
“prime example.” Id. Surreptitious investigatory practices
are frequently used to gather evidence of the manufacture
5
See, e.g., Lewis v. United States, 385 U.S. 206, 209 (1966) (“[I]n
the detection of many types of crime, the Government is
entitled to use decoys and to conceal the identity of its agents.”);
see also United States v. Rogers, 587 F.3d 816, 818 (7th Cir. 2009)
(describing a police officer pretending, over the Internet, to be
a 13-year-old to gather evidence of a defendant’s attempts
to entice a minor to engage in sexual activity); United States
v. Watson, 525 F.3d 583, 585-86 (7th Cir. 2008) (discussing the
FBI’s use of an informant to elicit incriminating statements
from a robbery suspect); United States v. Balistrieri, 779 F.2d
1191, 1206-07 (7th Cir. 1985) (noting the use of confidential
informants, surveillance, undercover law enforcement, wire-
taps and surreptitious recordings in an organized crime in-
vestigation). Further, law enforcement officials are permitted
to, and often do, use “strategic deception” to elicit confessions.
Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Ploys to mislead a
suspect or lull him into a false sense of security that do not rise
to the level of compulsion or coercion to speak are not within
Miranda’s concerns.”); see also United States v. Montgomery, 555
F.3d 623, 632 (7th Cir. 2009) (“[P]recedent holds that a police
officer may actively mislead a suspect prior to obtaining
a statement or confession so long as a rational decision [to
confess] remains possible.” (internal quotation marks omitted)).
16 No. 10-2297
or distribution of controlled substances.6 Given the preva-
lence of deceptive investigative practices, it might be
argued that an instruction on their permissibility should
be given as a matter of course. There can be no doubt
that, in some instances, the instruction can serve as a
useful, or even necessary, tool to focus the jury on its
task and to remind it that, like the presiding judge, it has
no roving commission to express disapproval of law
enforcement techniques that are acceptable under estab-
lished legal principles.
There are, however, countervailing considerations. We
have recognized, for instance, that the giving of unneces-
sary instructions raises the distinct possibility of clut-
tering the instructions taken as a whole and, consequently,
deflecting the jury’s attention from the most important
aspects of its task. See, e.g., United States v. Hill, 252 F.3d
919, 923 (7th Cir. 2001) (“Unless it is necessary to give
an instruction, it is necessary not to give it, so that the
important instructions stand out and are remembered.”).
There is also a possibility that singling out this aspect
of the case might be interpreted by the jurors as at least
6
See, e.g., United States v. Childs, 447 F.3d 541, 542 (7th Cir. 2006)
(“As is fairly common in drug cases, a part of the government’s
evidence . . . came from codefendants who flipped on [the
defendant] and confidential informants who made controlled
buys of drugs from [the defendant] or his cohorts.”); see
also United States v. Freeman, 650 F.3d 673, 676 (7th Cir. 2011)
(discussing a drug investigation involving “video surveil-
lance, garbage pulls, controlled buys, and confidential infor-
mants”).
No. 10-2297 17
indirect approval of the effectiveness of the Govern-
ment’s management of the investigation.
The decision as to whether to give an instruction such
as the one in question, of course, must be the product of
an affirmative act of judicial discretion. Our difficulty
here is that the district court did not elaborate on its
reasons for giving the instruction. It is clear, however,
that the court had the opportunity to focus on the possi-
bility of juror prejudice from the Government’s use of
wiretaps in its investigation upon the Government’s
earlier submission of a motion to forbid defense counsel
from suggesting jury nullification based on “[o]utrageous
Government [c]onduct.” R.229 at 6. In considering the
instruction in question, the court was alerted specifically
to the Government’s specific concern about the effect
of wiretap evidence.
Although the record provides very little affirmative
information on the district court’s reasoning for giving
the instruction in question, we see nothing in this
record to indicate that its decision to give the instruction
constitutes an abuse of discretion. As Mr. McKnight
forcefully argues, Denton’s testimony was central to
the Government’s case. We do not share, however,
Mr. McKnight’s concern that jurors might have under-
stood the challenged instruction to mean that they
must take Denton’s testimony at face value. First, the
district court explicitly instructed the jurors that Denton
was “hoping to receive benefits from the government[,]
namely, a reduced sentence in this case” and that they
should “give the testimony of Mr. Denton such weight
18 No. 10-2297
as [they] feel it deserves, keeping in mind that it must be
considered with caution and great care.” Trial Tr. vol. 4,
458, Oct. 8, 2009. This instruction underscored information
the jury already had been provided; Denton testified about
the terms of his deal with the Government on both direct
and cross-examination, and Mr. McKnight’s counsel
questioned his credibility repeatedly and aggressively.
Second, the challenged instruction refers to “undercover
agents and undercover informants who may conceal
their true identities” and to “ruses, subterfuges, and . . .
investigative techniques that deceive.” Id. at 465-66.
Denton was neither an undercover agent nor an
informant, nor did he assist in any Government ruse or
subterfuge.7 He was arrested for his role in the con-
spiracy and cooperated only after the Government had
concluded its investigation and initiated the prosecu-
tions. We therefore cannot conclude that the challenged
instruction prejudiced Mr. McKnight’s defense.
B. Compelled Participation in the IFRP
At sentencing, the district court imposed a fine of $1,000
and directed Mr. McKnight to make payments through
the IFRP. Because Mr. McKnight did not challenge this
portion of his sentence before the district court, we
review for plain error. See United States v. Munoz, 610 F.3d
7
We note that Denton sold drugs to a confidential informant
on several occasions. However, this activity makes Denton a
target of the Government’s investigation, not an accessory to
the Government’s subterfuge.
No. 10-2297 19
989, 997 (7th Cir. 2010). The Government concedes that
sentencing Mr. McKnight to participate in the IFRP consti-
tutes plain error. We agree.
We have described the IFRP as a program
under which staff members from the Bureau of
Prisons assist inmates in developing plans to
meet their financial obligations. See 28 C.F.R.
§ 545.10. Inmates who do not participate may
lose a number of privileges identified in 28 C.F.R.
§ 545.11(d), which include participating in [a
certain] prison job training program, furloughs,
and outside work details, and having higher
commissary spending limits, access to higher-
status housing, and access to community-based
programs.
United States v. Boyd, 608 F.3d 331, 333 (7th Cir. 2010). We
have held that the IFRP is a voluntary program, and,
therefore, an order compelling an inmate’s participation
is plain error. See Munoz, 610 F.3d at 997; Boyd, 608
F.3d at 334 (“The IFRP can be an important part of
a prisoner’s efforts toward rehabilitation, but strictly
speaking, participation in the program is voluntary. . . .
[A]n inmate in the Bureau of Prisons’ custody may lose
certain privileges by not participating in the IFRP, but
the inmate’s participation cannot be compelled.”).
To correct this error, Mr. McKnight requests only modi-
fication of his sentence. Such action is consistent with
Munoz and Boyd. In both cases, we modified the sentence
rather than remanding it to the district court. Munoz, 610
F.3d at 997; Boyd, 608 F.3d at 335. We also modify the
20 No. 10-2297
sentence here by striking the mandatory requirement
that Mr. McKnight participate in the IFRP.
Conclusion
We conclude that the district court did not commit
reversible error by issuing the deceptive investigative
practices jury instruction in this case. We therefore
affirm Mr. McKnight’s conviction. However, the dis-
trict court should not have ordered Mr. McKnight’s
participation in the IFRP. Accordingly, we modify his
sentence by striking that requirement.
A FFIRMED as M ODIFIED
11-22-11