                              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.



               On Petition for Rehearing En Banc



 A RGUED S EPTEMBER 29, 2011—D ECIDED N OVEMBER 22, 2011




   Before E ASTERBROOK, Chief Judge, and P OSNER, FLAUM,
R IPPLE, M ANION, K ANNE, R OVNER, W OOD , W ILLIAMS,
S YKES, T INDER and H AMILTON, Circuit Judges.
  On consideration of the petition for rehearing with
suggestion for rehearing en banc filed by defendant-
appellant and the answer of plaintiff-appellee, all of the
2                                            No. 10-2297

judges on the original panel voted to deny rehearing
and a majority of the judges in active service voted to
deny rehearing en banc. Judge Posner dissented from
the denial of rehearing en banc and filed an opinion
which was joined by Judges Kanne and Williams.
    The petition for rehearing is denied.




  P OSNER, Circuit Judge, with whom K ANNE and W ILLIAMS,
Circuit Judges, join, dissenting from denial of rehearing
en banc. The appeal presents an important question that
deserves the attention of the full court: the propriety
of gratuitous jury instructions in criminal cases, which
is to say instructions that do not address an issue
in the case. Such instructions are apt to confuse jurors,
and when as in this case they are proposed by a party
rather than given on the initiative of the trial judge,
they may be intended to confuse, and in the present
case to undermine the efficacy of an instruction desired
by the opposing party and given by the judge.
  Before the trial in this drug conspiracy case began,
the government filed a motion in limine to bar evidence
or argument that would be likely in the government’s
view to incline the jury to acquit the defendant even if
his guilt had been proved beyond a reasonable doubt—
No. 10-2297                                              3

what is called “jury nullification,” a legitimate concern
of prosecutors because acquittals cannot be appealed.
One of the government’s concerns arose from the fact
that, as is typical in drug cases, the prosecution was
intending to rely heavily, for proof of the defendant’s
guilt, on wiretap and other surveillance evidence and on
evidence provided by informers and undercover officers,
including evidence based on controlled buys by the
informers. It claimed to be worried that jurors might
think such investigative techniques illegal or improper,
and therefore might vote to acquit the defendant even
if they were convinced of his guilt. So as part of the
motion in limine the government asked that the defense
be barred from challenging the legality or propriety
of those investigative techniques.
  That part of the motion is only a page and a half long,
and it provides no empirical or other grounding for
believing that jurors would be apt to “nullify” on the
basis of indignation at the use of such techniques. Con-
cern is expressed from time to time that members of
minority groups who believe themselves to be targets
of police harassment would as jurors refuse to convict
guilty defendants, but all the government said in
support of its motion to prevent the defense in this case
from making claims of “outrageous government con-
duct” is that there is an “increasing tendency to interject
themes of ‘government misconduct’ into a defense strat-
egy.” The government presented no evidence to sup-
port the claim of an “increasing tendency,” or indeed
of any tendency, or to suggest that defense counsel
might be planning to inject such “themes” into the trial
of this case.
4                                              No. 10-2297

  Nevertheless it certainly would be improper to
permit defense counsel to challenge the propriety of
the deceptive investigative techniques employed by the
government in this case, for in fact they are entirely
proper; and so the judge rightly granted the motion.
  During voir dire, no juror was asked whether he or
she had a problem with evidence obtained by such tech-
niques, and during the trial the defense scrupulously
obeyed the judge’s order not to make an issue of the
propriety of the government’s investigative techniques.
Yet at the instructions conference at the end of the trial
the government pulled a rabbit out of its hat by unex-
pectedly asking the judge to instruct the jury that
     sometimes the government uses undercover agents
     and undercover informants who may conceal their
     true identities in order to investigate suspected vio-
     lations of law. In the effort to detect violations of
     the law, it is sometimes necessary for the govern-
     ment to use ruses, subterfuges and employ investiga-
     tive 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 delib-
     erations.
The judge gave the instruction—over the defendant’s
objection—verbatim.
    The panel recognized that
     the giving of unnecessary instructions raises the
     distinct possibility of cluttering the instructions
No. 10-2297                                                    5

    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 remem-
    bered.”). There is also a possibility that singling out
    this aspect of the case might be interpreted by
    the jurors as at least indirect approval of the effec-
    tiveness of the Government’s management of the in-
    vestigation. The decision as to whether to give an in-
    struction such as the one in question, of course, must
    be the product of an affirmative act of judicial dis-
    cretion. Our difficulty here is that the district court
    did not elaborate on its reasons for giving the instruc-
    tion.
These are sensible precepts; gratuitous instructions con-
fuse, and should not be given. Llaguno v. Mingey, 763 F.2d
1560, 1569 (7th Cir. 1985) (en banc); Heater v. Chesapeake &
Ohio Ry., 497 F.2d 1243, 1249 (7th Cir. 1974); Clark v.
Burlington Northern, Inc., 726 F.2d 448, 452 (8th Cir.
1984); Michaud v. United States, 350 F.2d 131, 133 (10th
Cir. 1965); 9C Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 2556, pp. 112-33 (3d ed.
2008). In Llaguno, a civil rights suit against police, we
said: “The judge told the jury that in evaluating the de-
fendants’ behavior it should ‘not use 20/20 hindsight,’
and ‘should consider the responsibility of the police to
prevent crime, apprehend criminals, and to safeguard
persons and property from criminal actions.’ These in-
6                                              No. 10-2297

structions were not wrong in the sense of stating
untruths, but they were gratuitous and prejudicial. The
term ‘20/20 hindsight’ is a derisory expression for an
ex post facto judgment. The plaintiffs were entitled to
ask the jury to make such a judgment, evaluating the
conduct of the police long after the fact. And to remind
the jury, quite unnecessarily one would have thought,
that the police are responsible for protecting the public
safety is to place the judge’s thumb on the balance
in favor of a class of defendants already regarded sym-
pathetically by most jurors.” 763 F.2d at 1569.
   The panel in this case did not apply the precepts that
it had enunciated. The district court had not just failed
to “elaborate on its reason” for giving the instruction; it
had given no reason; it had given an explanation devoid
of reasons. And the instruction was indeed gratuitous,
and so should have triggered the rule of the Hill case,
quoted approvingly by the panel: “Unless it is necessary
to give an instruction, it is necessary not to give it.”
  In urging the instruction, the government had not
contended that something had occurred during the
jury voir dire or the trial to suggest that one or more of
the jurors disapproved of the government’s investiga-
tive techniques, let alone would try to punish the gov-
ernment for using them. One member of the venire
said during voir dire that law enforcement had taken
advantage of her stepsister and coerced her into con-
fessing in a murder investigation, but that she (the
venire member) did not blame the police. The reference
to coercion could encompass deceptive interrogation
No. 10-2297                                              7

techniques. But we don’t know whether this juror was
empaneled, and the government doesn’t cite her
remarks as a basis for the instruction.
  This would be a different case were there any artic-
ulated reason, with some foundation in fact or theory,
for believing that the jury might acquit a defendant
whom it believed guilty, just because the government
had used deceptive investigative techniques. All the
government’s lawyer said in support of the motion,
repeating in slightly different words the same empty
statement in its motion in limine, was that “some jurors
have issues with the government’s use of those tech-
niques in general.” He didn’t say there was any indication
that some jurors in this case had such issues. Nor did
the district judge state or imply that she had noticed
anything during the trial that would indicate a danger
that some jurors had such issues. All she said was
“I have given this instruction before. I don’t think it’s
particularly problematic.”
  And so both the prosecutor and the judge treated
the instruction as routine, as needing no supporting
evidence either particular to the case at hand (for the
judge said nothing about the facts of this case or the
facts of any previous case in which she had given the
instruction) or applicable to the generality of cases (per-
haps evidence based on academic studies of juries). The
implication was that the instruction is proper in any case
in which the government relies on informers, or wire-
tapping, or some other investigative method that some
jurors might question. The panel opinion implies that
8                                              No. 10-2297

the instruction can be given in any case in which such
techniques are used.
  A gratuitous instruction is likely to worry jurors, by
making them think they must have missed something
during the trial because the instruction addresses an
issue that didn’t come up at trial. Jurors might think the
instruction must relate to some issue in the trial, or else
it would not have been given; the logical candidate
for such an issue in this case is the credibility of the
wiretap and informer testimony. The jurors may have
put 2 and 2 together and gotten—5: since the techniques
are proper and legal, the evidence they produce must
be true. That would not be a sound logical inference, of
course, but it is how jurors might respond to the con-
fusing instruction.
  A related danger was that the instruction would under-
mine another instruction the judge gave: that Shawn
Denton, a member of the drug conspiracy who after
being arrested became the government’s principal
witness, was “hoping to receive benefits from the gov-
ernment[,] namely, a reduced sentence in this case” and
that the jurors should “give the testimony of Mr. Denton
such weight as [they] feel it deserves, keeping in mind
that it must be considered with caution and great care.”
The testimony of a paid witness (paid with a lighter
sentence—quite a valuable currency for criminals sub-
ject to the possibility of a very long sentence) should
indeed be considered with caution. But a juror might
think that since the use of deceptive investigative tech-
niques is legal and proper, their fruits shouldn’t be con-
sidered with suspicion.
No. 10-2297                                             9

  All the panel says to counter this inference con-
cerning interpretation of the challenged instruction is
that Denton was not an undercover agent, and turned
prosecution witness only after the government’s inves-
tigation of the defendant was complete, and therefore
the instruction about deceptive investigative tech-
niques couldn’t have been referring to him. But
Denton had been apprehended as a result of surveil-
lance, a deceptive investigative technique, and had
assisted the prosecution in its investigation by
interpreting code words in phone conversations that
he had had with the defendant that the government
had secretly recorded—interpretive activity that
was certainly part of the government’s pretrial inves-
tigation. It is unrealistic to suppose that the jury would
have thought the “deceptive technique” instruction
unrelated to Denton’s testimony; and indeed it would
have been wrong to think that.
  It is no answer that, as remarked in the panel opinion,
jurors are “presumed” to obey their instructions. All
that this bit of boilerplate means is that if instructions
are legally correct, clear, and balanced, a judgment can’t
be overturned by a challenge to them; they are fine.
These instructions were not fine.
  In evaluating the clarity of instructions we need to be
realistic about the limits of comprehension of jurors, as
the panel was when it said that “the giving of unneces-
sary instructions raises the distinct possibility of
cluttering the instructions taken as a whole and, conse-
quently, deflecting the jury’s attention from the most
10                                               No. 10-2297

important aspects of its task.” But the panel failed to
follow through—to recognize that it is quite possible
that the gratuitous instruction in this case was con-
fusing and slanted the instructions in the government’s
favor, and that the district judge may not have realized
this.
  The obvious response to the defendant’s complaint
about the instruction would have been for the panel to
order a limited remand to enable the district judge to
explain more fully why she gave the instruction; her
explanation that she had given it previously and
didn’t think it particularly problematic illustrates the
difference between an explanation and a justification,
as she failed even to indicate whether any or all of
those cases had been ones in which the defense had
tried to make an issue of the government’s investigative
methods.
  No plausible justification for the instruction has yet
been offered by anyone.
 The panel did remark:
     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 ap-
     parent 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 pru-
No. 10-2297                                             11

   dent. A trial court’s obligation includes taking note of
   all such situations and acting to preserve the integrity
   of the record.
That’s fine as a generality, but it is beside the point in
a case such as this in which there is no indication that
the trial judge discharged her “obligation”—no indica-
tion that she exercised an informed discretion in
deciding to give the challenged instruction. A trial judge
who gives no reason for a questionable ruling is not
“acting to preserve the integrity of the record.” To the
presumption that jurors understand their instructions
the panel has added an apparently unrebuttable presump-
tion that trial judges have a good reason, even if secret,
for overruling objections to instructions that appear to
be gratuitous.




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