United States v. Jon Burge , 711 F.3d 803 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1277
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JON B URGE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08-CR-846—Joan Humphrey Lefkow, Judge.
A RGUED M ARCH 29, 2012—D ECIDED A PRIL 1, 2013
Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Former Chicago Police Com-
mander Jon Burge presided over an interrogation
regime where suspects were suffocated with plastic
bags, electrocuted until they lost consciousness, held
down against radiators, and had loaded guns pointed
at their heads during rounds of Russian roulette. The
use of this kind of torture was designed to inflict
pain and instill fear while leaving minimal marks.
2 No. 11-1277
When Burge was asked about these practices in civil in-
terrogatories served on him years later, he lied and
denied any knowledge of, or participation in, torture
of suspects in police custody. But the jury heard over-
whelming evidence to contradict that assertion and
convicted Burge for obstruction of justice and perjury.
Burge raises several challenges to his convictions on
appeal, which we do not find persuasive because the
evidence shows that he lied when he answered the inter-
rogatories, his false statements impeded an official pro-
ceeding, and they were material to the outcome of the
civil case. Overall, we conclude that no errors were com-
mitted by the court and Burge received a fair trial. Finally,
Burge objects to the district court’s reference to a victim
impact letter at his sentencing, but it is well established
that hearsay is admissible at sentencing hearings, so
we affirm.
I. BACKGROUND
For many years a cloud of suspicion loomed over
the violent crimes section of the Area 2 precinct of the
Chicago Police Department (CPD) located on Chicago’s
south side. Jon Burge joined the CPD in 1970 and rose
to commanding officer of the violent crimes section in
the 1980s, but his career was marked by accusations
from over one hundred individuals who claimed that
he and officers under his command tortured suspects in
order to obtain confessions throughout the 1970s and
1980s. Burge was fired in 1993 after the Office of Profes-
sional Standards investigated the allegations, but he was
No. 11-1277 3
not criminally charged. Years later the Circuit Court of
Cook County appointed special prosecutors to investi-
gate the allegations of torture, but due to statutes of
limitation, prosecutors never brought direct charges of
police brutality against Burge. Eventually, the City of
Chicago began to face a series of civil lawsuits from
victims seeking damages for the abuse they endured.
In one lawsuit filed in 2003, Madison Hobley sought
damages for being physically beaten and suffocated with
a typewriter cover while being interrogated at Area 2 in
1987. Hobley v. Burge, et al., No. 03 C 3678 (N.D. Ill.).
Although Hobley did not allege that Burge had per-
sonally participated in his abuse, he sought to prove that
the CPD had a policy and practice of torturing confes-
sions from suspects. He also claimed that Burge was
aware of this practice and requested discovery from
Burge related to this policy.
During discovery, Burge responded to two sets of in-
terrogatories regarding his involvement in alleged abuse
at Area 2. Question 13 of the first set of interrogatories
asked Burge to state if he had ever used or was aware
of any other officers using “any form of verbal or physical
coercion of suspects” including “deprivation of sleep,”
“physical beatings or hangings; the use of racial slurs or
profanity,” or “the use of physical objects to inflict pain,
suffering or fear, such as firearms, telephone books,
typewriter covers, radiators or machines that deliver an
electric shock.” Burge objected to this question, but re-
sponded, “I have never used any techniques set forth
above as a means of improper coercion of suspects while
4 No. 11-1277
in detention or during interrogation.” Question 14 con-
tained similar language to Question 13, and asked Burge
to state if he was “aware of any Chicago Police
Officer, including but not limited to officers under [his]
command” ever using these techniques. Again, Burge
objected to this question, but responded, “I am not aware
of any.” Burge signed his name at the end of the last
answer, but the document did not contain an oath.
Question 3 in the second set of interrogatories focused
on Hobley’s allegations that he was beaten and suf-
focated with a typewriter cover and asked whether
such practices were “consistent with other examples of
physical abuse and/or torture on the part of Chicago
Police officers at A2 which [Burge] observed or had
knowledge of.” Burge answered, “I have not observed
nor do I have knowledge of any other examples of
physical abuse and/or torture on the part of Chicago
police officers at Area 2.” The answers from this second
set of interrogatories were signed by Burge, notarized,
and given under the following oath: “I, Jon Burge, after
first being duly sworn, state on oath that I have read
the foregoing . . . and that the answers therein are true
and correct to the best of my knowledge and belief.”
This second set of answers was signed by Burge and
given under oath.
On October 18, 2008, the government alleged that
Burge’s responses to the interrogatories were false and
indicted him on two counts of obstruction of an official
proceeding under 18 U.S.C. § 1512(c)(2) and one count
of perjury under 18 U.S.C. § 1621(1). At trial, the govern-
No. 11-1277 5
ment called multiple witnesses to testify about the
methods of torture and abuse used by Burge and others
at Area 2 in order to establish that Burge lied when
he answered the interrogatories in the Hobley case.
While the issues in this appeal do not turn on the
specific details of suffering caused under Burge’s
watch, the witnesses at trial detailed a record of decades
of abuse that is unquestionably horrific. The witnesses
described how they were suffocated with plastic bags,
electrocuted with homemade devices attached to their
genitals, beaten, and had guns forced into their mouths
during questioning. Burge denied all allegations of
abuse, but other witnesses stated that he bragged in
the 1980s about how suspects were beaten in order to
extract confessions. Another witness testified that Burge
told her that he did not care if those tortured were
innocent or guilty, because as he saw it, every suspect
had surely committed some other offense anyway. On
June 28, 2010, the jury convicted Burge on all counts.
He was sentenced to 54 months’ imprisonment. This
appeal followed.
II. ANALYSIS
A. Section 1512(c)(2) Obstructive Conduct Need Not
Occur Before a Court
Before trial, Burge moved to dismiss Counts 1 and 3
in the indictment for failure to state an offense and he
renewed the argument in a subsequent motion for judg-
ment of acquittal. We review questions of law in a
district court’s ruling on a motion to dismiss an indict-
6 No. 11-1277
ment de novo. United States v. Greve, 490 F.3d 566, 570
(7th Cir. 2007).
Counts 1 and 3 of the indictment charged Burge with
violating 18 U.S.C. § 1512(c)(2). Section 1512(c) provides:
Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a
record, document, or other object, or at-
tempts to do so, with the intent to impair
the object’s integrity or availability for use
in an official proceeding; or
(2) otherwise obstructs, influences, or
impedes any official proceeding, or at-
tempts to do so,
shall be fined under this title or imprisoned
not more than 20 years, or both.
This section is a product of the Sarbanes-Oxley Act of
2002, Pub. L. 107-204, 116 Stat. 745, and represents a
relatively new addition to the obstruction of justice
statutes described in §§ 1501, 1503, 1512, and 1519.
To be liable under § 1512(c)(2), a defendant must
obstruct or impede an “official proceeding.” A separate
section of the statute defines “official proceeding” as “a
proceeding before a judge or court of the United States . . .
or a Federal grand jury.” 18 U.S.C. § 1515(a)(1)(A) (empha-
sis added). The parties do not contest that Hobley’s
civil suit qualifies as an “official proceeding” within the
meaning of the statute. Nevertheless, Burge contends
that his conviction cannot stand because his obstructive
No. 11-1277 7
conduct—false interrogation responses—did not occur
“before” a judge.
Since Burge gave his false responses to written inter-
rogatories and was not physically in court or being de-
posed, he maintains that the indictment does not state
an offense under § 1512(c)(2).1 Burge reaches this con-
clusion by transplanting § 1515(a)(1)(A)’s definition of
“official proceeding” into the text of § 1512(c)(2), and
then reads the two provisions as one. He reasons that
the proper way to interpret the word “before” when
reading the two provisions together is that § 1512(c)(2)
requires obstructive conduct to occur in or during the
official proceeding before a judge or court. In advancing
this interpretation, Burge relies on Dunn v. United States,
where the Supreme Court interpreted a perjury statute,
18 U.S.C. § 1623, as applying only to “statements given
in . . . formal contexts,” meaning, at minimum, in deposi-
tions taken under oath. 442 U.S. 100, 111 (1979) (em-
phasis added).
This is a novel interpretation of the statute, but one
we must reject. Though § 1515(a)(1)(A) defines an official
proceeding as one “before a judge or court,” it does not
require that obstructive conduct occur in the same loca-
tion. How do we know this? First, the phrase “before a
judge or court” in § 1515(a)(1)(A) only describes which
types of proceedings can be considered “official,” not
where the criminal obstruction must occur. Obstruction
1
Burge’s argument does not turn on the fact that the first
set of interrogatories was not given under oath.
8 No. 11-1277
of justice occurs when a defendant acts to impede the
types of proceedings that take place before judges or
grand juries. But the defendant need not interfere while
court is actually in session to be held liable. Burge asks
us to plug the phrase “before a judge or court” from one
section of the statute into another and interpret it as
applying to the location of the obstructive conduct.
This construction is too strained.
Second, Burge’s reading of § 1512(c)(2) is contradicted
by the express language of another provision, § 1512(f),
which provides: “For purposes of this section . . . an official
proceeding need not be pending or about to be instituted
at the time of the offense.” We cannot infer a location
requirement into § 1512(c)(2) when Congress has ex-
plicitly instructed that an official proceeding need not
even be pending for a defendant to violate the provision.
It makes little sense to ignore the plain meaning of the
text for at least one other reason. Section 1512(c)(1) covers
obstructive conduct in the form of physical destruction
of documents and records. Burge’s counsel conceded at
oral argument that it would be absurd to presume
that Congress only intended to cover document destruc-
tion actually committed in a proceeding before a judge.
Very few defendants shred incriminating papers in
plain view of a presiding judge. Obviously, the statute
must apply to destruction of documents performed
in advance of an official proceeding.
Even though Burge’s obstruction was of a different
kind, his conduct still falls within the scope of § 1512(c)(2),
which applies to a defendant who “otherwise obstructs,
No. 11-1277 9
influences, or impedes any official proceeding” (em-
phasis added). The expansive language in this provision
operates as a catch-all to cover “otherwise” obstructive
behavior that might not fall within the definition of docu-
ment destruction. See United States v. Aguilar, 515 U.S.
593, 598 (1995) (interpreting similar language in 18 U.S.C.
§ 1503 as an “Omnibus Clause . . . prohibiting persons
from endeavoring to influence, obstruct, or impede the
due administration of justice” and concluding that the
language is “general in scope”). Sections 1512(c)(1) and
(2) are linked with the word “otherwise,” so we can safely
infer that Congress intended to target the same type of
pretrial misconduct that might “otherwise” obstruct a
proceeding beyond simple document destruction. See
Erlenbaugh v. United States, 409 U.S. 239, 244 (1972) (stating
that generally “individual sections of a single statute
should be construed together”). False statements made
during an official proceeding may be obstructive. But
so too can misconduct that occurs in advance of the
proceeding as long as the defendant “believe[s] that his
acts will be likely to affect a pending or foreseeable pro-
ceeding.” United States v. Matthews, 505 F.3d 698, 708 (7th
Cir. 2007); see also United States v. Reich, 479 F.3d 179, 185
(2d Cir. 2007). In either situation, the defendant remains
liable.
Very few circuit courts of appeal have addressed what
qualifies as an “official proceeding” under § 1512(c)(2),
but none (at least of which we are aware) has adopted
10 No. 11-1277
Burge’s reading of the statute.2 In fact, several of our
2
After briefing was completed, Burge’s counsel submitted a
Fed. R. App. P. 28(j) letter citing United States v. Binette, 828
F. Supp. 2d 402 (D. Mass. 2011) as supplemental authority. In
that case, the Securities and Exchange Commission initiated a
preliminary investigation into the defendant’s suspicious
trading activity. The defendant made several false statements
to the investigators, but argued that he was not guilty of
obstructing an “official proceeding” under §1512(c)(2). The
district court agreed, reasoning that the disputed phone call
between the SEC investigators and the defendant was not a
“’formal convocation’ called by the agency where Defendant
was directed to appear. Instead, the agency’s investigators
chose to give their conversations with Defendant a far
more casual appearance.” 828 F. Supp. 2d at 404. There was
nothing “casual” about the interrogatories Burge received here
in a pending federal lawsuit, and unlike the defendant’s
responses in Binette, Burge’s answers to the second set of
interrogatories were given under oath. Moreover, the court
in Binette did not address Burge’s claim that the obstructive
conduct at issue must occur in front of a judge or court, and
gave no indication that the statute should be read in such a way.
Burge also argues that the government did not establish
that he took an “oath” when he answered the second set of
interrogatories because the notary public testified that she did
not “administer” an oath, but rather notarized Burge’s signature.
But the evidence at trial showed that the notary showed him
the document containing the oath, directed his attention to
the oath, and then asked him to confirm that it was correct. As
the district court pointed out, he signed his name below the
oath in the presence of the notary, and so no more formality
(continued...)
No. 11-1277 11
sister circuits have upheld convictions under § 1512(c)(2)
for defendants whose conduct occurred well in advance
of any official proceeding. See, e.g., United States v.
Townsend, 630 F.3d 1003, 1014 (11th Cir. 2011) (phone calls
warning co-defendant that a search warrant was about
to be executed were sufficient to support § 1512(c)(2)
conviction); United States v. Phillips, 583 F.3d 1261, 1263-64
(10th Cir. 2009) (affirming conviction for disclosing an
undercover officer’s identity to the subject of a grand
jury investigation). In a case strikingly similar to this one,
the Second Circuit held that false answers given by
prison guards on a “Use of Force Report” could constitute
obstruction of a Bureau of Prisons civil investigation
attempting to uncover prisoner abuse. United States v.
Perez, 575 F.3d 164, 169 (2d Cir. 2009).
And Dunn, a case that involved a different statute
with different elements, does not support Burge’s posi-
tion. Section 1623 is titled “false declarations before grand
jury or court” and it encompasses perjury made “in any
proceeding” (emphasis added). Section 1512(c)(2)’s lan-
guage is simply not comparable. Burge’s challenge to
Counts 1 and 3 on these grounds must therefore fail.
2
(...continued)
was needed. See United States v. Yoshida, 727 F.2d 822, 823 (9th
Cir. 1983) (“No particular formalities are required for there to
be a valid oath under [§ 1621]. It is sufficient that, in the pres-
ence of a person authorized to administer an oath, . . . the affiant
by an unequivocal act consciously takes on himself the obliga-
tion of an oath, and the person undertaking the oath under-
stood that what was done is proper for the administration of
the oath . . . .”).
12 No. 11-1277
B. Merits of Civil Suit Irrelevant to Burge’s Criminal
Liability
On June 3, 2010, the government disclosed to Burge
during trial that an Assistant United States Attorney
had held a 2008 interview with Hobley’s cellmate while
the two were both in prison. The cellmate, Darryl Simms,
told prosecutors that Hobley treated Simms as a con-
fidant and admitted to being guilty of the arson and
murder for which he had been imprisoned. According to
the cellmate, Hobley said he had confessed to police due
to guilt about accidentally killing his son in an arson he
had intended would only kill his wife. Simms said that
Hobley never mentioned in these conversations that he
had been tortured or abused while under arrest.
After this disclosure, Burge moved for a mistrial or in
the alternative to introduce Simms’s testimony to the
jury. The district court denied these requests. Burge
argues on appeal that mistrial should have been granted
on the grounds that Hobley’s civil suit “was a fraud.”
We review a district court’s exclusion of evidence and
denial of a motion for a mistrial for abuse of discretion.
United States v. Powell, 652 F.3d 702, 709 (7th Cir. 2011).
Burge cites Napue v. Illinois and related cases for the
proposition that a “conviction obtained through the use
of false evidence, known to be such by representatives
of the State, must fall.” 360 U.S. 264, 269 (1959). But Burge
misapprehends the import of the rule he relies upon.
Burge is correct that prosecutors cannot advance false
evidence to the jury in order to get a conviction. However,
there is no indication that prosecutors relied upon false
evidence in trying Burge since Hobley did not testify
No. 11-1277 13
at trial. The government never took a position in the
indictment or before the jury on whether Hobley had
been tortured or whether he was lying. The jury was
simply advised that the civil suit was brought to deter-
mine, in part, whether a policy or practice of torture
existed in the Chicago Police Department. We cannot
consider the conviction “tainted” when Burge fails to
identify any false evidence actually introduced by the
government.3
Furthermore, the relevant question for the jury was
not whether Hobley’s allegations were well-founded,
but whether Burge lied when he responded to the inter-
rogatories. Burge’s criminal liability for the charges in
the indictment was the same whether the underlying
civil suit was true or false. Therefore, Simms’s testimony
was immaterial and not “of consequence to the deter-
mination of the action.” See Fed. R. Evid. 401. The district
court appropriately excluded evidence regarding the
merits of Hobley’s suit since it had no bearing on
the government’s charges.
3
We also note that Simms’s account does not establish the
falsity of Hobley’s torture allegations because Simms simply
claimed that Hobley admitted to the crime and never men-
tioned torture in their conversation. Even if we accepted
Simms’s testimony at face value, the account would not
directly contradict Hobley’s allegations because he could
have been guilty of arson, yet still have been tortured by
Chicago police officers. Under such circumstances, it is
difficult to characterize the government as “knowingly us[ing]
false evidence” to obtain a conviction. Napue, 360 U.S. at
269 (emphasis added).
14 No. 11-1277
To the extent that Burge suggests that his culpability
is diminished because his responses were given in the
context of a civil interrogatory, we reject the assertion.
See United States v. Holland, 22 F.3d 1040, 1047 (11th
Cir. 1994) (“[W]e categorically reject any suggestion,
implicit or otherwise, that perjury is somehow less
serious when made in a civil proceeding.”). Perjury and
obstruction of justice are offenses against the integrity
of the judicial system—not solely injuries to opposing
parties in a civil suit. See United States v. Dunnigan, 507
U.S. 87, 97 (1993) (discussing role of perjury statutes in
“uphold[ing] the integrity of our trial system”). Suspicion
of Hobley’s allegations did not grant Burge a license to
invent whatever answers he preferred during discovery.
A civil judicial proceeding is designed, in part, to deter-
mine the truth of what occurred between the parties in
a dispute. If witnesses were free to lie whenever they
believed a plaintiff’s allegations were false, it would
totally undermine the crucial mediating role of the
courts. A basic irony also underlies Burge’s claim that
the civil suit was “a fraud” since his own misconduct
has contributed to uncertainty regarding the confessions
of Area 2 suspects like Hobley. See Hinton v. Uchtman, 395
F.3d 810, 821-22 (7th Cir. 2005) (Wood, J., concurring)
(detailing the “mountain of evidence indicat[ing] that
torture was an ordinary occurrence at [ ] Area Two”).
We therefore reject any assertion that the indictment
was grounded in falsity.
No. 11-1277 15
C. Burge’s False Statements Were Material
To be guilty of perjury under 18 U.S.C. § 1621(1), a
defendant’s false statement must be material. See Dun-
nigan, 507 U.S. at 94 (“A witness testifying under oath
or affirmation violates [§ 1621(1)] if she gives false testi-
mony concerning a material matter with the willful
intent to provide false testimony . . . .”). A false state-
ment is material if it has “a natural tendency to influ-
ence, or [is] capable of influencing, the decision of the
decisionmaking body to which it was addressed.” Neder
v. United States, 527 U.S. 1, 16 (1999) (citation omitted);
see also United States v. Howard, 560 F.2d 281, 284 (7th
Cir. 1977) (defining materiality for purposes of § 1621).4
In convicting Burge under § 1621(1), the jury was re-
quired to find that his false interrogatory responses
were material—that is, that they had the “natural ten-
dency” to influence the outcome of the Hobley case.
Burge seeks a judgment of acquittal on this count, arguing
that the evidence was insufficient to support the jury’s
finding for two reasons. First, the government provided
no evidence that his misrepresentations were used or
relied upon in the Hobley suit. Second, Burge’s answers
were immaterial because the government failed to
prove conclusively that Hobley actually suffered
any constitutional injury. Both of these contentions
are meritless.
4
There is no materiality requirement for obstruction under
§ 1512(c); the defendant must have only acted with corrupt
intent to obstruct. See United States v. McKibbins, 656 F.3d
707, 712 (7th Cir. 2011).
16 No. 11-1277
The materiality of a false statement is evaluated at the
time the statement is made. Howard, 560 F.2d at 284.
Materiality does not depend on the ultimate decision
reached by the body to which the false statement is ad-
dressed. See United States v. Wesson, 478 F.2d 1180, 1181
(7th Cir. 1973) (“[I]f a false utterance potentially inter-
feres with the grand jury’s line of inquiry, materiality is
thereby established even though the perjured testi-
mony does not actually impede the investigations.”); see
also United States v. DeLeon, 603 F.3d 397, 404 (7th Cir. 2010).
The question of whether the Chicago Police Department
had a policy or practice of torturing suspects was a core
component of Hobley’s civil suit. In covering up
Burge’s record of torture, the false interrogatory re-
sponses withheld key evidence relevant to the civil
suit. Therefore, materiality does not turn on whether
Burge’s answers were “used” in the Hobley trial. His
false statements could not be introduced precisely
because he had concealed relevant evidence. And while
Burge is correct that Hobley had to prove constitutional
injury to prevail in his suit, that issue is irrelevant to the
materiality of Burge’s lies. Whether the City of Chicago
could be held liable for a policy or practice of torture
is plainly distinct from whether evidence in the form of
an interrogatory answer is material to determining
whether the contested policy or practice exists. So the
question before the jury was whether Burge’s false state-
ment had “the natural tendency to impede, influence
or dissuade” the outcome of Hobley’s civil suit—not
whether the suit’s outcome actually turned on the
Burge’s lies. Howard, 560 F.2d at 284. Hobley alleged a
No. 11-1277 17
policy or practice of torture. Burge’s false responses
regarding these very accusations are plainly material.5
D. No Constructive Amendment of Indictment
At the close of trial, the government requested and
received a jury instruction on materiality that differed
from language in the indictment. The indictment charged:
It was material to the outcome of the civil law-
suit whether in fact JON BURGE knew or partici-
pated in torture and physical abuse of persons
in Chicago Police Department custody.
The instruction to the jury read:
An answer to an interrogatory is material if a
truthful answer might reasonably be calculated
to lead to the discovery of evidence admissible at
5
Burge also objects to the exclusion of his expert witness,
Daniel Locallo, who would have testified that Burge’s state-
ments would not have been material unless and until Hobley
could prove he had suffered a constitutional injury. But experts
do not instruct the jury on the law; the district court must do
so itself. See United States v. Sinclair, 74 F.3d 753, 758 n.1 (7th
Cir. 1996) (“Federal Rules of Evidence 702 and 704 prohibit
experts from offering opinions about legal issues that will
determine the outcome of a case. . . . [Experts] cannot testify
about legal issues on which the judge will instruct the jury.”).
Locallo’s characterization of materiality was incorrect and
the district court acted properly in excluding his testimony
on this point.
18 No. 11-1277
trial of the underlying lawsuit or otherwise affect
its outcome. It is not necessary that the answer
actually have that effect so long as it had the
potential or capability of doing so.
Burge does not suggest that this instruction was an
inaccurate statement of the law. Instead, he maintains
that the district court constructively amended the indict-
ment by improperly expanding the bases upon which the
jury could convict beyond the indictment’s charges. In
other words, he says that the indictment limited its
scope to only those responses relevant to the outcome
in Hobley, but the jury’s instructions were not so restricted.
This issue presents a somewhat closer question that
turns on the distinction between a constructive amend-
ment and a variance. A constructive amendment of an
indictment occurs if jury instructions support a convic-
tion for “a crime other than that charged.” United States
v. Ratliff-White, 493 F.3d 812, 820 (7th Cir. 2007) (citations
and quotations omitted); see also United States v. Trennell,
290 F.3d 881, 888 (7th Cir. 2002) (“In order to rise to
the level of constructive amendment, the change must
establish offenses different from or in addition to those
charged in by the grand jury.”). A variance, on the other
hand, does not “alter the essential substance of the
charged offense.” United States v. Pigee, 197 F.3d 879, 886
(7th Cir. 1999). In other words, “not every minor variance
[between an indictment and jury instructions] constitutes
a constructive amendment.” Id.; see also Trennell, 290
F.3d at 888 (explaining that there is no constructive amend-
ment “when the court’s description of the indictment
No. 11-1277 19
alters the terms of the indictment in an insignificant
manner”), and cases cited therein; United States v.
Kuna, 760 F.2d 813, 817 (7th Cir. 1985) (explaining that
“variances may be subject to the harmless error rule”).
When read comprehensively, the district court’s materi-
ality instruction represents only a variance from the
language of the indictment. In Burge’s view, the district
court’s inclusion of “discovery of evidence admissible
at trial” in the instruction arguably permitted the jury
to find the materiality element satisfied based on a
ground not charged in the indictment. He urges that the
indictment required that his statements be material to
the outcome, but the instruction additionally defined
materiality as an answer leading only to the discovery
of evidence. However, the distinction Burge attempts
to draw may not be a meaningful one because any
evidence admissible at trial would necessarily need to
be relevant in the first place under Federal Rules
Evidence 402. See Fed. R. Evid. 402 (“Evidence which is
not relevant is not admissible.”). But see United States v.
Arambula, 238 F.3d 865, 868 (7th Cir. 2001) (suggesting that
false testimony is “material when it [is] crucial to the
question of guilt or innocence”); see also United States v.
McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (discussing
different standards for determining materiality of state-
ments). And while we need not delve too deeply into
the various ways of determining materiality, we note
that we have previously observed that “a lie influencing
a pretrial issue, will, in an attenuated sense, influence
the ultimate outcome of the case itself.” United States
v. Galbraith, 200 F.3d 1006, 1014 (7th Cir. 2000).
20 No. 11-1277
But more importantly, if a defendant is convicted of
the same offense for which he was charged in the indict-
ment, then any variance between the indictment and
instructions is often benign. Pigee, 197 F.3d at 886; see also
United v. Willoughby, 27 F.3d 263 (7th Cir. 1994). As we
have explained before, “we are primarily concerned
with changes made to the indictment that affect the
elements of the crime.” United States v. Krilich, 159 F.3d
1020, 1027 (7th Cir. 1998). Burge does not contest that he
was convicted of the same charges for which he was
indicted: violations of 18 U.S.C. § 1512(c)(2) and 18 U.S.C.
§ 1621(1). The instruction here did not change the
elements of the crime, nor did it affect the evidence the
jury would have relied upon to hold Burge liable for
obstruction of justice and perjury. Moreover, Burge has
failed to show any prejudice from this variance, as he
clearly had reasonable notice of the charges against him
and an adequate opportunity to prepare his defense. See
Ratliff-White, 493 F.3d at 823; Kuna, 760 F.2d at 819. As a
result, we find that any variance between the language
of the indictment and jury instructions was harmless.
E. No Abuse of Discretion for Exclusion of Hearsay
Testimony
At trial, the government presented a great deal of
evidence related to Andrew Wilson, who was arrested
for the murder of two police officers in 1982. Wilson
alleged that while at Area 2, officers beat him, suffocated
him with a plastic bag, electrocuted him and held his
body against a radiator. Wilson died in prison before
No. 11-1277 21
Burge’s trial, but the government introduced his testi-
mony from three previous proceedings under Federal
Rule of Evidence 804(b)(1).
Burge sought to introduce prior testimony of several
officers whom Wilson had accused of participating in
his torture. Officers John Yucaitis and Patrick O’Hara
died before Burge’s trial but Burge sought to introduce
their prior testimony from Wilson’s civil trial. Other
officers, Thomas McKenna, Lawrence Hyman, and
Fred Hill, had asserted the Fifth Amendment and Burge
sought to compel their testimony. The district court
declined to admit their testimony under the catch-all
hearsay exception in Federal Rule of Evidence 807 or to
compel the testimony of these witnesses.
There was no abuse of discretion in excluding this
testimony. Rule 807 permits evidence to be admitted if
it has sufficient “circumstantial guarantees of trustworthi-
ness.” Fed. R. Evid. 807(a)(1). In other words, hearsay
testimony that does not fall under an exception may still
be excluded under Rule 807 unless there are substantial
indications of its reliability. The district court correctly
concluded the contrary in this case. The officers accused
of participating in Wilson’s abuse would have had a
motive to testify falsely to exculpate themselves. And
Burge was permitted to challenge Wilson’s allegations
of abuse with a range of other witnesses who were able to
testify directly and did not invoke the Fifth Amendment.
Furthermore, the excluded witnesses would have only
testified as to the abuse of Wilson. Their testimony
would have had no effect on the evidence of the other
22 No. 11-1277
victims of abuse, so any error was harmless. None of
the district court’s evidentiary rulings denied Burge the
right to a fair trial.
F. No Error in Referencing Victim Impact Letter at
Sentencing
At sentencing, the district court engaged in a lengthy,
eight-page discussion of the factors supporting the above-
guidelines sentence of 54 months that she imposed.
After concluding that Burge had shown no remorse or
respect for the law, the court briefly discussed a victim
impact letter from an unnamed victim who was impris-
oned at age 17 for a crime he says he did not commit.
The court used this letter to demonstrate how Burge’s
crimes had undermined the integrity of our system
of justice.
Burge objects that he was sentenced on the basis of
unreliable evidence—a letter from an unnamed victim.
This objection fails. At sentencing, Burge’s attorney
only raised an objection that the letter was inadmissible
hearsay. It is well-established that hearsay is admissible
at sentencing hearings. United States v. Johnson, 227 F.3d
807, 813 (7th Cir. 2000). District courts cannot make
sentencing determinations on the basis of guesswork,
but that is not what the trial court did here. The victim
impact letters were included in the presentencing infor-
mation distributed to Burge and he never specifically
challenged the reliability of any of the victim impact
letters. And in any event, the trial court devoted only a
No. 11-1277 23
very small portion of a lengthy colloquy to discussing the
victim impact letter.
III. CONCLUSION
For the foregoing reasons, we A FFIRM Burge’s convic-
tion and the district court’s sentence.
4-1-13