                              NONPRECEDENTIAL DISPOSITION
                                 To be cited only in accordance with
                                         Fed. R. App. P. 32.1



                     United States Court of Appeals
                                     For the Seventh Circuit
                                     Chicago, Illinois 60604

                                    Submitted October 7, 2010∗
                                     Decided October 12, 2010


                                                Before

                                FRANK H. EASTERBROOK , Chief Judge

                                MICHAEL S. KANNE , Circuit Judge

                                TERENCE T. EVANS, Circuit Judge


No. 10-1964                                                       Appeal from the United
                                                                  States District Court for the
UNITED STATES OF AMERICA,                                         Northern District of Illinois,
      Plaintiff-Appellee,                                         Eastern Division.

                v.                                                No. 03 CR 126 – 1,2
                                                                  Ruben Castillo, Judge.
ROSS A. C APUTO and ROBERT M. RILEY,
      Defendants-Appellants.


                                                 Order

       Well after the trial ended, the prosecutor informed Ross Caputo and Robert
Riley that Shayne Gad, one of the witnesses, had committed perjury by falsely claiming
military experience and decorations. The witness’s testimony did not involve his
military service (he testified as a toxicologist), but the false claim of extra credentials
may have made him more believable in the jurors’ eyes. Caputo and Riley then filed a
motion for a new trial. The district judge denied this motion, remarking that even if the
witness had never testified, the jury’s verdict could not have been affected.


∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 10-1964                                                                    Page 2



       The principal argument on appeal is that the district judge used the wrong
standard by asking whether there was a “reasonable probability” that Gad’s lies about
his military service affected the verdict. The proper inquiry, appellants contend, is
whether there was “some likelihood” that truthful testimony would have changed the
verdict. We need not decide which standard should have been used, because the district
judge sensibly concluded that there was no chance of an effect.

        Defendants were charged with lying to the Food and Drug Administration and
selling a misbranded medical device. Our opinion affirming their convictions provides
details. United States v. Caputo, 517 F.3d 935 (7th Cir. 2008). In addition to denying the
charges made in the indictment, defendants offered what they called a “good-faith
defense”: that they honestly believed that the device was safe for the uses they
promoted. The prosecutor asked the district judge to rule out this line of evidence and
argument, contending that good faith is not a defense to a charge of fraud. The judge
allowed defendants to present this defense. Gad testified in rebuttal, in an effort to
show that defendants could not reasonably have held the belief they claimed to have
held.

       On appeal, defendants contended that the jury instructions on this “good-faith
defense” favored the prosecutor unduly. We rejected that argument on the ground that
“good faith” is not a defense to fraud, and that the district judge erred by submitting
this question to the jury in the first place. 517 F.3d at 942. Since Gad’s testimony was
relevant only to a defense that should not have been allowed, the overstatement of his
credentials is not a reason to hold a new trial.

       Defendants observe that the defense was allowed in fact, and they insist that, if
the jurors had known the truth about Gad’s background (or if he had not testified),
they might have voted to acquit on at least some counts. But no defendant is entitled to
a better shot at talking jurors (or judges) into making a legal error. See, e.g., Lockhart v.
Fretwell, 506 U.S. 364 (1993). No litigant has a vested right to hold onto the benefits of
an error. Yet Caputo and Riley not only want to hold onto the benefits of the error but
also seek to increase them, using the unduly favorable decision at the trial as a fulcrum
for obtaining an acquittal at a second trial. Had this case been properly handled at trial,
“good faith” would not have been an issue and Gad would not have testified. It would
be pointless to hold a second trial at which good faith will not be allowed as a defense,
and neither Gad nor any substitute will testify.

                                                                                   AFFIRMED
