In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1691

United States of America,

Plaintiff-Appellee,

v.

Darwin Montana,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 54--Milton I. Shadur, Judge.


Argued October 29, 1999--Decided December 16, 1999




  Before Posner, Chief Judge, and Flaum and Diane P.
Wood, Circuit Judges.

  Posner, Chief Judge. The defendant was convicted
of bank robbery and related offenses and given a
very long sentence--almost 30 years. James Dodd
committed the actual robbery; Montana drove the
getaway car. Dodd pleaded guilty, and testified
at Montana’s trial, as Montana’s witness, that
Montana had not known that Dodd was planning to
rob the bank. Shortly before the end of the
trial, Dodd gave Montana’s lawyer a note for
Montana’s mother, who after she read it told the
lawyer that the note demanded money in exchange
for Dodd’s having testified favorably to Montana.
The following morning, a deputy U.S. marshal
heard Dodd tell Montana to tell Montana’s father
that "it’s going to be $10,000" for the favorable
testimony. The district judge allowed the marshal
to testify to what he had heard. He also
permitted the jury to learn that Dodd had passed
a note to Montana’s mother, but not that
Montana’s lawyer had been the courier.

  Montana complains primarily about his lawyer’s
having passed the note from Dodd, which he says
made the lawyer’s representation of him
incompetent, and about the marshal’s being
permitted to testify to Dodd’s out-of-court
statement, which he claims was inadmissible
hearsay. The note has a twofold significance so
far as the adequacy of Montana’s representation
was concerned. First, had the jury learned that
Montana’s lawyer had conveyed a demand for a
bribe, it might have inferred that the lawyer was
complicit in the demand, and this would have
totally discredited him in the jurors’ eyes. This
danger was averted by the judge’s refusal to
allow the jury to discover the lawyer’s role in
the passing of the note. Second, however, the
lawyer’s discovery that he had been the
instrument for conveying a bribe demand might
conceivably have intimidated him into providing
less than vigorous representation for Montana,
fearing that if he were too effective the
government would retaliate by accusing him of
being complicit in the bribe demand, that is, of
knowing what was in the note. In so arguing
Montana is appealing to a line of cases which
hold that a lawyer who is under investigation by
the Department of Justice has a conflict of
interest in representing a person whom the
Department is prosecuting if the lawyer is afraid
of retaliation should he press his client’s
defense too vigorously. Thompkins v. Cohen, 965
F.2d 330, 332 (7th Cir. 1992); cf. United States
v. Levy, 25 F.3d 146, 156 (2d Cir. 1994); United
States v. Cancilla, 725 F.2d 867, 870 (2d Cir.
1984).

  The mere fact of being under investigation by
the prosecutors of the lawyer’s client does not
create a fatal conflict, we have held, United
States v. Hubbard, 22 F.3d 1410, 1418 (7th Cir.
1994); Thompkins v. Cohen, supra, 965 F.2d at
332; Cerro v. United States, 872 F.2d 780, 785-86
(7th Cir. 1989), though the Eleventh Circuit
appears to differ. See United States v. McLain,
823 F.2d 1457, 1464 (11th Cir. 1987)
(acknowledged, on other grounds, as defunct, in
United States v. Watson, 866 F.2d 381, 385 n. 3
(11th Cir. 1989)). An actual fear of retaliation
must be shown. See Thompkins v. Cohen, supra, 965
F.2d at 332. It was not shown here and anyway
Montana’s lawyer was not under investigation. He
may have feared that he would be investigated if
he didn’t pull his punches, but this is pure
speculation which Montana has made no effort to
substantiate. There is not only no indication
that the lawyer pulled his punches; there is no
hint that anyone suspected him of having read the
note before transmitting it to Montana’s mother.
It may seem, may indeed be, irregular for a
lawyer to be conveying a message from a jailhouse
inmate not his client to his client’s mother,
since prisons rightly insist on inspecting
ongoing mail that is not privileged. But remember
that Dodd was a friendly witness, whose testimony
had sought to exonerate Montana. It was natural
though inappropriate and quite possibly improper
for Montana’s lawyer to want to accommodate Dodd
to the extent of carrying a note from him. He had
no reason to believe that the note was a demand
for a bribe, and so far as appears he was not in
jeopardy of being prosecuted for having passed
the note. As in Stoia v. United States, 109 F.3d
392, 395 (7th Cir. 1997), there is no basis for
an inference that he was intimidated by a threat
of prosecution if he didn’t pull his punches in
defending his client.

  Montana also complains about his lawyer’s
decision to call Dodd as a witness, for he proved
to be uncontrollable and while attempting to
exonerate Montana made various inculpatory
statements. He also repeated statements that
Montana had made to him, and this opened the door
for the government to impeach the out-of-court
declarant (Montana) with his extensive criminal
record. United States v. Stefonek, 179 F.3d 1030,
1036 (7th Cir. 1999); United States v. Robinson,
783 F.2d 64, 67 (7th Cir. 1986); United States
v. Moody, 903 F.2d 321, 328 (5th Cir. 1990). But
to criticize Montana’s lawyer for calling Dodd is
rank Monday morning quarterbacking. Dodd was the
only witness Montana had, and he tried to
exonerate him. Had Montana’s lawyer failed to
call Dodd, Montana would have a stronger case of
ineffective assistance of counsel than he has.
Dodd’s testimony actually helped Montana, at
least a little, for the jury acquitted him of the
charge of having conspired with Dodd to rob the
bank.

  The only other issue that requires discussion
(Montana’s challenge to the sentence has no
possible merit) is the admissibility of the
marshal’s testimony that Dodd had told Montana
that the price of Dodd’s favorable testimony was
$10,000. The government argues that it was
admissible as a "verbal act," see, e.g., United
States v. Thomas, 86 F.3d 647, 653 n. 12 (7th
Cir. 1996); United States v. Robinzine, 80 F.3d
246, 252 (7th Cir. 1996); Twin City Fire Ins. Co.
v. Country Mutual Ins. Co., 23 F.3d 1175, 1182
(7th Cir. 1994); United States v. Murphy, No. 98-
2035, 1999 WL 756846, at *3-*4 (1st Cir. Sept.
30, 1999); United States v. Roach, 164 F.3d 403,
410 (8th Cir. 1998), thus echoing the linguist’s
distinction between performative and
illocutionary utterances. The latter narrate,
describe, or otherwise convey information, and so
are judged by their truth value (information is
useful only if true--indeed is information only
if it is true); the former--illustrated by a
promise, offer, or demand--commit the speaker to
a course of action. Performative utterances are
not within the scope of the hearsay rule, because
they do not make any truth claims. Had the
marshal overheard Dodd tell Montana, "your father
has promised me $10,000," Dodd’s overheard
statement would have been hearsay, because its
value as evidence would have depended on its
being truthful, that is, on such a promise having
actually been made. But what in fact was
overheard was merely a demand--in effect, "give
me $10,000"--and so the only issue of credibility
was whether the marshal was reporting the demand
correctly, and his testimony was not hearsay.

Affirmed.
