                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-4230
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

STEVEN J. DELLA ROSE,
                                           Defendant-Appellant.

                         ____________
         Appeal from the United States District Court for
        the Northern District of Illinois, Eastern Division.
             No. 02 CR 466—David H. Coar, Judge.
                         ____________
      ARGUED JUNE 7, 2004—DECIDED APRIL 8, 2005
                     ____________



  Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. A grand jury charged Chicago
attorney Steven J. Della Rose with conspiracy to commit
mail fraud and producing a false identification document in
or affecting interstate commerce, alleging that Della Rose
had arranged for an associate to obtain false identification
in the name of Della Rose’s client and use that identifica-
tion to fraudulently cash a settlement check made payable
to that client and turn the proceeds over to Della Rose. A
petit jury subsequently convicted Della Rose on these
charges, although the district judge later granted him a
2                                                No. 03-4230

judgment of acquittal on the false identification card charge.
The judge ordered Della Rose to serve a prison term of 41
months. Della Rose appeals, contending among other things
that the district judge erred in excluding so-called “reverse
404(b)” evidence that Della Rose’s associate had previously
trafficked in phony identifications, which evidence was
offered in part to show that it was the associate, rather than
Della Rose, who was the likely perpetrator of the scheme.
Fed. R. Evid. 404(b); see United States v. Wilson, 307 F.3d
596, 601 (7th Cir. 2002). Because the core of this evidence
was hearsay not subject to any exception that would render
it admissible, we conclude that the district judge did not
abuse his discretion in excluding this evidence. Finding no
other error sufficient to warrant a new trial, we affirm Della
Rose’s conviction. However, we direct a limited remand of his
sentence so that the district court may determine whether
it would have sentenced Della Rose differently had it
realized that the Sentencing Guidelines are advisory rather
than mandatory. See United States v. Booker, 125 S. Ct. 738
(2005).


                             I.
  In July 1994, James George retained Della Rose to rep-
resent him in connection with a workers’ compensation claim
against the Chicago Housing Authority (“CHA”). George
was employed by the CHA as a janitor. In June 1994, George
injured his shoulder, back, and hip as he was removing trash
from a CHA high-rise building. Initially, George attempted
to continue working but found that he could not handle the
more physically demanding aspects of his job. A series of
medical examinations and x-rays ultimately would reveal
that George had a torn rotator cuff. After one to two weeks
of rest and therapy, doctors told George that he could re-
turn to work so long as he did not do any heavy lifting. But
George’s supervisor told George that unless he returned to
No. 03-4230                                                3

unrestricted duty, he faced termination. At that point,
George retained Della Rose (with whom he had no prior
relationship) to pursue compensation for his workplace in-
jury. At Della Rose’s request, George signed both a retainer
agreement and a worker’s compensation claim form. In the
meantime, the CHA put George on disability leave and
George began to receive weekly disability checks amounting
to 70 percent of his standard pay at the CHA.
  George, it turns out, had a number of problems beyond
his injury at the CHA. Since the early 1970s, George had
been using cocaine in both its powder and crack forms; he
had also experimented with heroin and marijuana as well
as various other controlled substances. By the late 1980s,
George was addicted to both drugs and alcohol, and his al-
cohol abuse caused him to suffer occasional blackouts and
memory loss. He also suffered from mental difficulties that
included a history of suicide attempts. By 1989, his prob-
lems were causing him to miss so much work that Illinois
Bell, where he had worked for more than 19 years, fired
him for job abandonment.
  After spending 13 months in a Veterans Administration
hospital, George was discharged when he tested positive for
morphine. George went to live with his mother and began
to work for Motorola. Eventually, he lost his job with that
company because of his tardiness.
  It was in 1991 that George was hired by the CHA. During
his employment with the CHA, his personal difficulties
persisted. In or about 1993, he telephoned one of his ther-
apists and announced that he was thinking about blowing
up a CHA apartment building; he then locked himself inside
of a CHA building, drank a pint of whiskey and swallowed
a handful of sleeping pills in an effort to kill himself, and
passed out. Tipped off to his bomb threat, police arrived and
took him away in handcuffs. He was subsequently taken to
a hospital psychiatric unit.
4                                               No. 03-4230

  Similar episodes occurred in the years after George was
injured and he retained Della Rose to pursue the workers’
compensation claim. George’s drug and alcohol abuse con-
tinued, and by his own account it was severe. He was in and
out of hospitals for psychiatric treatment, entertained
thoughts of both suicide and homicide, and suffered from
auditory and possibly visual hallucinations. By 1998, George
was in arrears in payments on his house and car and lost
both to creditors. A friend took him in until he could find
somewhere else to live.
  On or about April 17, 1998, George telephoned Della Rose’s
office to let him know that he had found an apartment in
Hammond, Indiana; he left his new contact information
with Della Rose’s secretary. Soon thereafter, George learned
that Della Rose had sent him a letter in care of his mother,
advising George that he had been contacted by the CHA and
asking George to call him. (George previously had given
Della Rose his mother’s contact information for use in case
George could not be contacted directly.) On or about April
28, 1998, George spoke with Della Rose by telephone. At
that time, Della Rose advised George that his case against
the CHA remained pending but that the CHA was dragging
its feet and that it likely would be some time before it was
resolved.
  That same month, the CHA stopped issuing disability
payments to George. When George contacted Ben Geach, a
claims supervisor at the CHA, to find out why he had not
received two of the benefits checks he was expecting, Geach
told him that his worker’s compensation suit had been set-
tled. George immediately followed up with Della Rose’s office
but was not able to speak with Della Rose at that time.
  George would later testify that Della Rose never had a
conversation with him in 1998 about settling his case, that
he never received a copy of the settlement, and that he
never signed the settlement documents. In addition, and
No. 03-4230                                                5

more to the point for purposes of this case, George testified
that he did not receive a settlement check, let alone endorse
it.
  But Della Rose had, in fact, negotiated a settlement of
George’s suit. Pursuant to the settlement agreement, George
was to be paid a total of $80,000 in compensation for a
permanent partial disability. Of that amount, Della Rose
was to be paid $16,000, a figure amounting to 20 percent of
George’s recovery (the maximum percentage permitted). An
arbitrator for the Illinois Industrial Commission (“IIC”),
which handles workers’ compensation claims, approved the
settlement on May 1, 1998. Among other signatures, the ap-
proved agreement—known in IIC parlance as a settlement
contract—bore what purported to be George’s signature. A
forensic document examiner would later testify that this
was not, in fact, George’s natural signature but rather a
series of “drawings” or “attempted drawings.” Tr. 410. Based
on the evidence available to her, the examiner was not able
to identify who executed that signature; George, of course,
would testify that he did not.
  Pursuant to the settlement, a check in the amount of
$80,000 was issued to “James George & Atty. Steven J.
Della Rose.” Gov. Ex. 6. As noted, Della Rose was to take
$16,000 of that amount for his fees and George was to
receive the balance of $64,000. An endorsement purporting
to be George’s was made on the back of the $80,000 check.
The government’s document examiner would testify that
the endorsement was not George’s natural signature, and
George would later deny endorsing the check. The proceeds
of this check were deposited into Della Rose’s account. Della
Rose then prepared a second check in the amount of
$64,000 payable to George. He also prepared a closing state-
ment dated May 16, 1998, reflecting the division of the
settlement proceeds between himself and George. The
statement also included an acknowledgment by George that
he had received the $64,000 check, and a signature purport-
6                                               No. 03-4230

ing to be George’s is found immediately below that state-
ment. Again, the document examiner would later testify
that it was not George’s natural signature, and George
himself would deny having signed the statement. On
May 22, 1998, that check, bearing what purported to be
George’s endorsement, was cashed. However, the same doc-
uments examiner who reviewed the other documents would
testify that the endorsement was not George’s natural
signature, and George himself would deny ever having en-
dorsed and cashed the $64,000 check.
  The individual who actually endorsed George’s check was
Dennis Ilenfeld, a man who worked part-time in Della Rose’s
office. Ilenfeld and Della Rose had met in 1995. Ilenfeld,
who at one time had operated a laundromat in a building he
owned, helped Della Rose install laundry facilities in a
building that Della Rose owned. In exchange for Ilenfeld’s
assistance, Della Rose agreed to represent Ilenfeld in an
acrimonious divorce and custody battle. Ilenfeld later began
to manage one building, and then a second, that Della Rose
owned. Eventually, Ilenfeld was spending 20 hours per
week managing Della Rose’s buildings and in that capacity
he worked out of Della Rose’s office several days per week.
For his part, Della Rose continued to represent Ilenfeld in
the much-prolonged divorce action until 2001. Ilenfeld
never charged Della Rose for his management services and
Della Rose never formally billed Ilenfeld for his legal work,
although on one occasion Ilenfeld did pay Della Rose
$11,000 from a settlement he obtained in another case.
  Ilenfeld was somewhat of a shady character. In 1992,
prior to Della Rose’s involvement in the divorce action, he
had put together $5,000 with the intent that a politically-
connected lawyer use the money to have his connections
“influence” the presiding judge’s forthcoming decision re-
garding custody of Ilenfeld’s daughter. For a time, Ilenfeld
carried a driver’s license bearing a social security number
that was off by one digit from his actual number. Ilenfeld
No. 03-4230                                                  7

used the incorrect social security number, as well as another
incorrect version (this one off by a different digit) on a num-
ber of occasions, including one instance in which his wife
attempted to garnish his wages for unpaid child support. An
incorrect social security number was also used in 1992 to
(improperly) cash a $19,000 check belonging to Ilenfeld’s ex-
wife; Ilenfeld denied having cashed the check, but a cur-
rency transaction report indicated that he was the one who
did so. In 1996, Ilenfeld used the name of a friend to obtain
telephone service for his own residence. In 1997, Ilenfeld
was held in contempt of court for failure to pay child
support. When he declared bankruptcy that same year, he
was over $700,000 in debt. Lawrence Starkopf, his ex-wife’s
attorney, based on his exposure to Ilenfeld over the 13-year
life of the divorce action and on conversations with others
about Ilenfeld, opined that Ilenfeld was not truthful at all.
  In May 1998, Della Rose met with Ilenfeld and asked him
to cash a check payable to a client who had recently died.
Della Rose identified the deceased client as James George.
Della Rose explained that he wanted the check cashed so
that George’s family could have access to funds and
Della Rose could have his fee paid without having to wait
for George’s financial affairs to be settled in court. Ilenfeld
balked at first but Della Rose persisted, reminding Ilenfeld
of the “craziness” he had put up with in Ilenfeld’s divorce.
Tr. 287. Ilenfeld eventually agreed to do as Della Rose asked.
On May 20, Della Rose again met with Ilenfeld and told him
that he had a contact in the Illinois Secretary of State’s
Office who could provide a fake identification card for
Ilenfeld to use in cashing George’s check. At that meeting,
Della Rose showed Ilenfeld documents bearing George’s
signature, and Ilenfeld began to practice that signature.
Della Rose had him sign George’s name to a couple of doc-
uments. When asked at trial, Ilenfeld could not recall
whether two of those documents might have been the
$80,000 settlement check and the closing statement in-
8                                                No. 03-4230

dicating the division of that amount between Della Rose
and George, although he acknowledged that the signature
on the closing statement looked like his work.
  On May 21, at Della Rose’s instruction, Ilenfeld (wearing
a wig) went to the Ford City, Illinois Secretary of State’s
Office and asked to see Mary Romanski. Ilenfeld had never
before met or spoken with Romanski. He introduced himself
to her as “Dennis” and told her that Della Rose had sent
him. Romanski took his picture and asked him to sign an
already-completed application for an identification card in
George’s name. Ilenfeld signed George’s name to the form,
and Romanski in turn supplied him with an identification
card prepared in the name of James George but bearing
Ilenfeld’s likeness. Ilenfeld testified that he did not pay
Romanski for the card. Della Rose paged Ilenfeld later that
day to see how things went. In reply, Ilenfeld told Della Rose
that all had gone smoothly. Della Rose remarked to Ilenfeld
that Romanski was “very good” and that she took care of
getting licenses for his “DUI clients.” Tr. 296. Phone records
indicated that someone in Della Rose’s office made four
phone calls to Romanski that day—one to her home, one to
her pager, and two to her office.
  On May 22, Ilenfeld stopped by Della Rose’s office and
picked up a check in the amount of $64,000, drawn on Della
Rose’s account and payable to George. When Ilenfeld saw
the amount and voiced doubt that the bank would cash a
check that large, Della Rose assured him that he would be
in his office and advised him to have the bank call him if
there were any problems.
  Ilenfeld, again wearing the wig, proceeded to Della Rose’s
bank and presented the check along with the fake identifi-
cation card. When tellers advised Ilenfeld that they could
not cash the check without additional identification, Ilenfeld
asked them to call Della Rose. The supervising teller of the
bank did so, and in the course of her conversation with
No. 03-4230                                                 9

Della Rose she verified the amount of the check as well
as Della Rose’s social security number, date of birth, and
mother’s maiden name. She did not advise Della Rose that
the man presenting the check was white (George is African-
American) or that he was wearing a wig (as was apparently
evident to bank personnel). At the bank’s request, Della Rose
faxed the bank a letter on his office letterhead authorizing
the bank to cash the check. Relying on that authorization,
the bank cashed the check and gave Ilenfeld $64,000 in
$100 bills, which he put into a briefcase. The bank also made
a photocopy of the identification card Ilenfeld had presented.
  Ilenfeld then returned to Della Rose’s office and handed
the cash over to him. After counting the money twice, Della
Rose gave Ilenfeld $50 to reimburse him for parking.
Ilenfeld would later testify that he left the fake identifi-
cation card with Della Rose. (He would also acknowledge,
however, that he may have told government agents that he
destroyed the card himself.) Della Rose later told Ilenfeld
that the situation with the check had worked out well—
that George’s family members had gotten their money and
that he (Della Rose) was happy.
   Needless to say, it did not escape the real James George’s
attention that although his suit had been settled, he had
not seen any of the proceeds. On June 2, 1998, George sent
Della Rose a telegram in which he said, “I am aware you
cashed my check. Where is my money?” Gov. Ex. 12. Ap-
parently no answer was forthcoming. Within several months
of the settlement, Della Rose received a letter from the
Illinois Attorney Registration and Disciplinary Commission
(“ARDC”) forwarding to him a copy of a complaint that
George had filed alleging that he had received no money
from Della Rose. Della Rose wrote a letter to the ARDC
in response in which he stated, among other things, that
George had accepted the settlement, signed the settlement
contract, and picked up the settlement check from
Della Rose’s office; that Della Rose “was always under the
10                                               No. 03-4230

impression throughout the case that Mr. George was at-
tempting to ‘gold brick’ the CHA”; that George had a history
of psychiatric problems; that George had once threatened to
blow up CHA property and had been arrested or detained in
the possession of plastic explosives; and that Della Rose had
been “astonished” to learn from Geach at the CHA that
George was claiming not only that he had not approved the
settlement but that he had never received any money.
Gov. Ex. 29.
     I have no idea nor reason as to why James George
     would stage this incident, except that he is attempting
     to blame others for the problems he suffers. Should he
     have lost or had his settlement funds misappropriated,
     perhaps his home owners or other insurance can fully
     restore him. I am truly sorry for Mr. George’s situation,
     but I do not know what else my office can do for
     him. . . .
Id. Interestingly, although Della Rose made photocopies of
the documents in his file on George for the ARDC, he sub-
sequently destroyed all of the originals in that file, includ-
ing the cancelled settlement check payable to George, not-
withstanding his awareness of George’s ARDC complaint.
  In 1999, George filed a civil suit against Della Rose, al-
leging that Della Rose had stolen the $64,000 he was owed
under the settlement contract. George ultimately agreed to
settle the case for $64,000. Before the suit was resolved,
however, George’s attorney took Della Rose’s deposition. Por-
tions of that deposition were read into evidence during the
trial in this case. In sum, Della Rose testified that George
had both approved the settlement of his worker’s compensa-
tion claim and received the $64,000 check for his portion of
the settlement. According to Della Rose, George had stopped
by his office twice in April and May of 1998: on April 23,
1998, George had signed the settlement contract; and on
May 16, 1998, George had endorsed the $80,000 settlement
No. 03-4230                                                11

check, signed the closing statement reflecting division of the
proceeds between himself and Della Rose, and accepted
Della Rose’s check for $64,000 (post-dated May 21, 1998, in
order to allow the $80,000 check to clear).
  Eventually, the dispute over what happened with the
$64,000 check ripened into a federal criminal investigation.
In the fall of 2001, federal agents contacted Della Rose’s
former secretary. She agreed to cooperate with their inves-
tigation, and at their behest she telephoned Ilenfeld and
had a conversation with him that was, unbeknownst to him,
recorded. She told Ilenfeld that investigators were making
inquiries regarding the check; she also asked him how it
was that his picture had been placed on an identification
card in George’s name and why two bank employees had
identified him as the person who had cashed George’s check.
Ilenfeld essentially deflected her questions and advised her
not to tell investigators anything she did not know. But the
phone call caused him to contact an attorney.
  Ultimately Ilenfeld, Romanski, and Della Rose were in-
dicted. By this time, Ilenfeld and Della Rose had had a fal-
ling out. Della Rose had sued Ilenfeld early in 2001 (the
record does not tell us why). Ilenfeld entered into an agree-
ment with the government in which he agreed to plead guilty
to conspiring to produce a false identification card and to
cooperate with the government; the government in turn
agreed that it would advise the court of his cooperation but
would not make any sentencing recommendation. As it turned
out, Ilenfeld served no time in prison, but was instead sen-
tenced to a three-year term of supervised release. Romanski
also pled guilty prior to trial. However, the record before us
does not reflect the terms, if any, of her plea.
  At trial, Ilenfeld was the government’s star witness against
Della Rose: it was he who outlined Della Rose’s scheme to
cash George’s settlement check using falsified identification.
Romanski, the source of the fake identification card, did not
12                                                No. 03-4230

testify. George testified, confirming that he had never
received any of the settlement proceeds. George was
questioned at length by attorneys for both the government
and Della Rose regarding his troubled history. Pursuant to
Federal Rule of Evidence 404(b), the district court also al-
lowed the government to elicit testimony about a previous
occasion on which Della Rose had helped someone obtain a
false identification card. Richard Britz, a former client of
Della Rose, testified that in 1995 or 1996, his driver’s license
was suspended. Della Rose sent him to Romanski in order to
obtain a state identification card under a false name. Accord-
ing to Britz, when he met Romanski at the Secretary of
State’s office, he told her his real name and that Della Rose
had sent him. Romanski, after inquiring what name he
wanted to use on the new identification card, proceeded to
prepare the card. He was subsequently able to use the
identification card to obtain a driver’s license at a different
Secretary of State facility, after Della Rose told him whom
to see at that second facility. Britz testified that he had not
met Romanski previously and did not pay her anything
for the false identification card she provided. He did pay
Della Rose $500 for his assistance.
  Following his conviction, the district court ordered
Della Rose to serve a prison term of 41 months, the high
end of the sentencing range called for by the Sentencing
Guidelines.


                              II.
A. Testimony of DeFrancesco
  As noted, Britz testified that in 1995 or 1996, Della Rose
had arranged for him to obtain a false identification card
from Romanski. The district court admitted this testimony
pursuant to Federal Rule of Evidence 404(b) in order to
explain the relationship between Della Rose and Romanski
and to provide context for Ilenfeld’s instruction to see
No. 03-4230                                                13

Romanski at the Secretary of State’s office and tell her that
Della Rose had sent him. R. 88-2 at 6. In response, Della Rose
wanted to elicit testimony from Frank DeFrancesco, an ac-
quaintance of Britz, to the effect that Britz told DeFrancesco
he had obtained the false identification card not through
Della Rose, but through Ilenfeld. DeFrancesco would have
further testified that he contacted Ilenfeld and attempted
to obtain a false identification card for himself, but that
Ilenfeld wanted too much money and consequently they
never reached an agreement. The district court excluded the
first portion of DeFrancesco’s proposed testimony (what
Britz told him about obtaining a false identification card
from Ilenfeld) as hearsay and the second part (regarding
DeFrancesco’s own unsuccessful effort to obtain an identifi-
cation card from Ilenfeld) as irrelevant. Tr. 552-57.
Della Rose portrays the exclusion as both incorrect and a
devastating blow to his defense. It was Della Rose’s theory of
the case that the fraud perpetrated on George was one of
Ilenfeld’s doing. Testimony that Britz had previously ob-
tained a false identification card from Ilenfeld was, in Della
Rose’s view, both admissible and essential for two purposes:
first, to impeach Britz’s own testimony that Della Rose had
made the arrangements for his phony identification, and
second, to prove substantively that Ilenfeld, having previ-
ously arranged for a false identification card, was the likely
culprit in this case.
   We begin with a word about the precise content of the
first portion of DeFrancesco’s excluded testimony. Through-
out his briefs, Della Rose represents that DeFrancesco
would have testified that Britz told him that he (Britz)
obtained his fake identification card from Ilenfeld. But this
is not what DeFrancesco actually said on the witness stand
before his testimony was cut off and ultimately stricken by
the district court. What DeFrancesco testified was that in
1995 or 1996 (which was the same time period during which
Britz testified he had obtained a phony identification card
14                                               No. 03-4230

through Della Rose and Romanski), his driver’s license had
been suspended for driving under the influence. Aware that
Britz himself had lost his license and had obtained a
falsified replacement, DeFrancesco asked Britz how he
(DeFrancesco) could get a fake driver’s license for himself.
Tr. 551. According to DeFrancesco, Britz gave him the tele-
phone number of Della Rose’s office and told him he should
speak with someone named Dennis (presumably Ilenfeld)
and that Dennis would take care of getting him a license.
Tr. 552-53. Nowhere in DeFrancesco’s limited testimony,
nor in his attorney’s discussion of his proposed testimony
with the district judge, do we find the representation that
Britz identified Ilenfeld as the source of Britz’s own phony
driver’s license. (The record does not contain an affidavit
from DeFrancesco shedding further light on what the con-
tent of his testimony would have been.) No doubt one may
logically draw that inference from Britz telling DeFrancesco
that Ilenfeld was the person to speak with about a fake
license. But it is not what DeFrancesco actually testified,
and as we shall see, the distinction might matter in evalu-
ating the admissibility of this portion of DeFrancesco’s testi-
mony. Nonetheless, recognizing that DeFrancesco’s testi-
mony was cut short, we shall give Della Rose the benefit of
the doubt and assume that, had his testimony been admit-
ted in full, DeFrancesco would have testified that Britz
identified Ilenfeld as the source of his falsified drivers’s
license.
   That testimony would have been relevant in both of the
ways Della Rose has identified. First, and most obviously,
it would have impeached Britz. Britz’s testimony was that
he obtained false identification from Romanski through
Della Rose. DeFrancesco’s testimony would have squarely
contradicted Britz on that point. We reject the government’s
suggestion that this would have amounted to impeachment
on a collateral point. Della Rose’s defense was that Ilenfeld
was the true culprit in the scheme to cash George’s settle-
No. 03-4230                                                15

ment check (and that possibly George himself was involved,
with the hope of being compensated more than once) and
that the scheme had been perpetrated without Della Rose’s
knowledge or involvement. Britz’s testimony tended to un-
dermine that notion by showing that Della Rose had the
means (including a willing accomplice at the Secretary of
State’s office) to obtain fraudulent identification to use in
the scheme. The government itself, in its closing argument
to the jury, described Britz as “a very important witness.”
Tr. 621. While we are on the subject, we also reject
Della Rose’s contention, in passing, that Britz’s testimony
amounted to improper evidence of his propensity and
should have been excluded under Rule 404(b). As we have
mentioned, the district court admitted this testimony to
explain the relationship between Della Rose and Romanski
with regard to obtaining false identification, a matter that
was relevant in view of the instruction that Della Rose gave
to Ilenfeld to see Romanski and tell her that Della Rose had
sent him. R. 88-2 at 6. It was within the district court’s
discretion to admit Britz’s testimony for this purpose. See
United States v. Hughes, 310 F.3d 557, 565 (7th Cir. 2002)
(evidence that co-defendants previously had been involved
in different criminal scheme was admissible under Rule 404(b)
to establish that they had a working relationship prior to
charged crime, “a matter that might have been of some
interest to the jury in light of the finger-pointing that took
place between the defendants”).
  Second, DeFrancesco’s testimony would have supplied the
jury with some basis to believe that Ilenfeld, rather than
Della Rose, may have been the perpetrator of the scheme,
as the defense posited. In the same way that Britz’s testi-
mony lent credence to the government’s case, by revealing
that Della Rose had previously arranged for Romanski to
issue false identification cards for his clients and thus
establishing that Della Rose had ready means to carry out
the scheme just as Ilenfeld recounted it, DeFrancesco’s tes-
16                                                 No. 03-4230

timony would have bolstered the defense case by showing
that Ilenfeld himself was capable of arranging for phony
i.d.’s and was willing to do so. Rule 404(b), though typically
invoked by the government as authority for introducing
evidence of the defendant’s prior bad acts, is a rule that
may be invoked by the defendant as well. United States v.
Reed, 259 F.3d 631, 634 (7th Cir. 2001); Agushi v. Duerr,
196 F.3d 754, 760 (7th Cir. 1999).
     Under what has come to be known as “reverse 404(b)
     evidence,” a defendant can introduce evidence of some-
     one else’s conduct if it tends to negate the defendant’s
     guilt. The trial court is entitled to exclude this kind of
     evidence if, upon a balancing of the evidence’s probative
     value against considerations such as prejudice, undue
     waste of time, and confusion of the issues under Rules
     401 and 403 of the Federal Rules of Evidence, it con-
     cludes that the evidence would not be beneficial. Such
     404(b) rulings, like other evidentiary rulings, are
     reviewed with deference. . . .
United States v. Wilson, supra, 307 F.3d at 601 (citations
omitted).
  But the relevance of DeFrancesco’s testimony was not
enough to circumvent the obvious hearsay problem. See
United States v. Brown, 31 F.3d 484, 491 n.8 (7th Cir. 1994)
(“even ‘other acts’ evidence is inadmissible if it is also
hearsay”). DeFrancesco’s putative testimony that Britz had
identified Ilenfeld as the source of phony i.d.’s in Della Rose’s
office was an out-of-court statement offered for its truth.
This is so whether we consider what DeFrancesco actually
testified in the district court (“[Britz] told me to call some-
body named Dennis and that he would take care of getting
me a license.” Tr. 552 (emphasis ours)), or what Della Rose
represents DeFrancesco would have said had he been al-
lowed to testify in full (“Britz told [DeFrancesco] that Ilenfeld
had done it for Britz.” Della Rose Br. at 22 (emphasis ours));
No. 03-4230                                                 17

either way, Della Rose was relying on the substance of
Britz’s statement to DeFrancesco. At trial, Della Rose’s
counsel never identified an exception to the hearsay rule
that would have allowed the admission of the evidence.
On appeal, he has suggested that Britz’s statement to
DeFrancesco was against his penal interest. That is true if
we assume that DeFrancesco would have testified that Britz
identified Ilenfeld as the source of his own false i.d.. That
Britz’s statement may have been against his penal interest,
however, does not by itself suffice, for Rule of Evidence
804(b)(3) renders such statements admissible only if the
declarant is unavailable. See, e.g., United States v. Ochoa,
229 F.3d 631, 637-38 (7th Cir. 2000). Britz was not literally
unavailable (he testified in the government’s case); and
Della Rose has made no attempt to establish that Britz was
unavailable in any of the other senses listed in Rule 804(a).
  In his briefs and at oral argument, Della Rose has sug-
gested that DeFrancesco’s testimony presented no more of
a hearsay problem than did Britz’s testimony, such that turn-
about was only fair play. That is not quite right, however.
To the extent that Britz recounted anyone’s out-of-court
statements other than his own, they were statements made
by Della Rose. Della Rose’s statements, to the extent they
were elicited from Britz for their truth, constitute admis-
sions that the Rules of Evidence deem to be non-hearsay.
Fed. R. Evid. 801(d)(2)(A); e.g., United States v. Spiller, 261
F.3d 683, 690 (7th Cir. 2001); United States v. Emenogha,
1 F.3d 473, 480 (7th Cir. 1993) (quoting United States v.
Thompson, 944 F.2d 1331, 1341 (7th Cir. 1991)).
  Della Rose rightly points out that the second part of
DeFrancesco’s proposed testimony was not hearsay. That
aspect of his testimony concerned his own efforts to procure
a falsified driver’s license from Ilenfeld. The district court
believed that portion of DeFrancesco’s testimony to be
irrelevant, but we think it relevant for the same reason that
his testimony as a whole was relevant—if Ilenfeld was
18                                               No. 03-4230

willing and able to arrange for false identifications without
Della Rose’s involvement, then that might have been what
occurred vis-à-vis George, as Della Rose himself posits. Of
course, standing alone, DeFrancesco’s testimony that he and
Ilenfeld had negotiated over a phony identification but had
been unable to agree on a price would not have provided
particularly compelling support for Della Rose’s defense. No
doubt for that reason, Della Rose contends that the balance
of DeFrancesco’s testimony, even if hearsay, should have
been admitted to explain why DeFrancesco sought out
Ilenfeld. Certainly DeFrancesco could have been permitted
to explain that he contacted Ilenfeld at Britz’s suggestion.
But assuming that DeFrancesco would have testified that
Britz had identified Ilenfeld as the source of his own false
i.d., we are not convinced that the need for context would
have compelled the admission of that hearsay statement.
   There may have been another basis for the admission of
Britz’s out-of-court statement about the source of his false
i.d., however. Because Britz testified, his statement to
DeFrancesco was potentially admissible under Rule 613(b),
which permits extrinsic evidence of a prior inconsistent
statement by a witness. To the extent Britz’s out-of-court
statement suggested that he had procured his phony iden-
tification through Ilenfeld rather than Della Rose, it was
inconsistent with his testimony. The government contends
that Della Rose’s attorney failed to lay the appropriate
groundwork for the admission of Britz’s out-of-court state-
ment. Rule 613(b) conditions the admissibility of a prior
inconsistent statement on the witness being afforded the
opportunity to explain or deny the statement. The govern-
ment assumes that Britz was never given that opportunity,
because when Britz was on the witness stand, Della Rose’s
counsel asked him only whether he knew Ilenfeld and
whether he had obtained his false identification from Ilenfeld
(Britz answered no to both questions); Britz was never asked
about what, if anything, he told DeFrancesco about his iden-
No. 03-4230                                                 19

tification. But the rule itself says only that the witness must
have the opportunity to explain or deny his prior statement;
it does not say that he must be given that opportunity
before extrinsic evidence of the statement is admitted.
See Fed. R. Evid. 613, Advisory Committee Note. Thus, the
fact that Britz had not been asked about his statement to
DeFrancesco on cross-examination did not necessarily pre-
clude the defense from eliciting testimony from DeFrancesco
about the statement; the government could have brought
Britz back to the stand in its rebuttal case and asked him
about the statement at that time. See, e.g., United States v.
Schnapp, 322 F.3d 564, 570-71 (8th Cir. 2003); United
States v. Young, 86 F.3d 944, 949 (9th Cir. 1996); United
States v. McCall, 85 F.3d 1193, 1196-97 (6th Cir. 1996); see
also United States v. Valencia, 913 F.2d 378, 385 (7th Cir.
1990) (assuming arguendo that district court may have
“technically erred” in barring extrinsic evidence of witness’s
prior inconsistent statement on ground that witness had not
been asked about the statement first, but finding any error
harmless); but see 3 Christopher B. Mueller and Laird C.
Kirkpatrick, Federal Evidence, § 332 at 519-20 (2nd ed.
1994) (“Occasionally, however, courts still insist on laying
the foundation first, and it seems probable that they have
authority to do so under FRE 611.”).
  But even if we assume that the district court abused its
discretion in barring DeFrancesco’s testimony, the error was
harmless. As we have noted, the defense sought to intro-
duce this evidence in support of the notion that Ilenfeld
perpetrated the scheme without Della Rose’s knowledge or
complicity. The defense posited that Ilenfeld somehow got
his hands on George’s check (possibly with George’s coop-
eration), procured a false identification card in George’s
name through his own means, and cashed the check using
that phony i.d. Although it was Della Rose himself who
authorized the bank to cash the check, Della Rose had (in
the defense view) no way of knowing that it was Ilenfeld
20                                               No. 03-4230

rather than George who was standing at the bank teller’s
window awaiting the proceeds. Evidence that Ilenfeld had
previously trafficked in false identification documents argu-
ably would have made it somewhat more likely that Ilenfeld
could have pulled this off without Della Rose knowing
anything about it.
   But the evidence at once makes plain both that the
fraudulent scheme began well before Della Rose wrote the
settlement check out to George and that Della Rose was
complicit in that scheme. According to Della Rose’s own
deposition testimony, Della Rose met with George in his
office on April 23, 1998; and after discussing the proposal to
settle the worker’s compensation claim for $80,000, George
signed the settlement contract in Della Rose’s presence.
Gov. Ex. 13 at 94-97. Yet, according to the government’s
document examiner, the signature on that contract was not
in George’s natural writing. After the settlement contract
was approved, a check in the amount of $80,000 was issued
payable to George and Della Rose jointly. Della Rose testi-
fied that George again came to his office on May 16, 1998,
and endorsed that check over to Della Rose in Della Rose’s
presence. Id. at 112. Again, however, the signature was not
in George’s natural writing. Della Rose maintained that he
then wrote a post-dated check to George in the amount of
$64,000 and gave it to George. Della Rose also prepared a
closing statement reflecting that he issued the check for
$64,000 to George and retained the balance of $16,000 for
himself. According to Della Rose, George signed that state-
ment as well, again in Della Rose’s presence. Id. at 110. Yet
again, the signature was not in George’s natural writing. In-
deed, a visual inspection of the signatures on the settlement
contract, the $80,000 check, and the closing statement
readily reveals them to be distinct from George’s natural
signature. The compelling inference raised by this evidence
is that George did not sign these documents and that
Della Rose knew full well he did not. Indeed, it is worth not-
No. 03-4230                                                 21

ing that although the unnatural signatures on the settle-
ment contract, the $80,000 check, and the closing statement
are visibly inconsistent with George’s natural signature,
they are remarkably consistent with one another and, not
coincidentally, consistent with the signature that Ilenfeld
forged on the $64,000 check payable to George. See Gov. Ex.
Moran 2. Which suggests that Ilenfeld signed the entire set
of documents—something he could not have done without
Della Rose’s knowledge and complicity.
  We also reject Della Rose’s contention that the exclusion
of DeFrancesco’s testimony deprived him of due process.
Although DeFrancesco’s testimony would have lent some
support to the defense theory, it was neither direct nor
compelling proof that Ilenfeld, rather than Della Rose, was
the perpetrator of the scheme. In any case, even constitu-
tional errors may be deemed harmless, e.g., United States
v. Souffront, 338 F.3d 809, 836 (7th Cir. 2003), cert. denied,
540 U.S. 1201 (2004), and cert. denied, 124 S. Ct. 2893 (2004),
and for the reasons we have just discussed, any error in the
exclusion of this testimony indeed was harmless.


B. Exclusion of Extrinsic Proof as to Ilenfeld and George
  Della Rose also challenges the exclusion of extrinsic evi-
dence concerning both Ilenfeld and George. With respect to
Ilenfeld, Della Rose sought to introduce additional testimony
that Ilenfeld had used multiple social security numbers. He
also sought to introduce evidence that during the divorce and
custody litigation with his ex-wife, Ilenfeld covertly tape-
recorded some 13 telephone conversations with his wife and
then dubbed portions of them together to produce an
unflattering amalgam that he either used or attempted to
use against her in the custody proceeding. With respect to
George, Della Rose sought to establish that, several years
before his settlement with the CHA, George was spending
some $10,000 per month on his drug habit.
22                                               No. 03-4230

  We find no abuse of discretion in the district court’s de-
cision not to allow extrinsic proof on these points, even
assuming that the proffered evidence was admissible in form
and relevant in some way. During his testimony, Ilenfeld
admitted to having used social security numbers other than
his actual number; extrinsic proof that he used multiple
numbers thus would not have materially contributed to the
jury’s assessment of his veracity or of the possibility that it
was he alone, and not Della Rose, who defrauded George. As
for the tape that Ilenfeld purportedly dubbed for use against
his ex-wife, Ilenfeld was asked about this on cross-examina-
tion and denied having made such a tape. The district court
was entitled to conclude, pursuant to Federal Rule of
Evidence 403, that whatever marginal probative value
extrinsic evidence on this subject might have was sub-
stantially outweighed by the prospect of a sideshow as to
what occurred during Ilenfeld’s divorce. As for the extent of
George’s drug habit, the jury was well aware that George
had a serious drug problem; George admitted as much in
his testimony. George had been asked at his deposition in
the civil suit whether he had ever spent as much as $10,000
on his habit and had denied it. The same question was put
to him again at trial and again he answered no. In view of
the fact that the jury was aware that George had a serious
drug habit, the district court was entitled to cut off further
inquiry into this subject.


C. Cross-examination of Lawrence Starkopf
  As we noted earlier, attorney Lawrence Starkopf testified
in the defense case regarding Ilenfeld’s character for
truthfulness, opining that “Mr. Ilenfeld is not truthful at
all.” Tr. 538. On cross-examination, the government began
to explore Starkopf’s familiarity with Della Rose and
ultimately asked Starkopf whether he had an opinion as to
Della Rose’s reputation for truthfulness and honesty within
No. 03-4230                                                 23

the legal community. Tr. at 542. Della Rose’s counsel ob-
jected to the question and the court sustained the objection.
Tr. 546. Although Starkopf never answered the question, in
Della Rose’s view “the cat was out of the bag at that point
and it was perfectly clear to the jury what the Government
expected Starkopf to say.” Della Rose Br. at 35. Because
general evidence of the defendant’s character is not admis-
sible in a criminal case unless the defense has opened the
door to this subject, see Fed. R. Evid. 404(a); United States
v. Bonner, 302 F.3d 776, 781 (7th Cir. 2002), Della Rose
contends that the improper question and the apparently
negative answer the government expected Starkopf to give
prejudiced him.
  We disagree. Whatever opinion Starkopf had about
whether Della Rose was honest, and whatever expectation
the government had as to what Starkopf would have said,
the fact is that Starkopf did not answer the question. Any
inference as to Starkopf’s opinion derives solely from the
fact that the government posed the question to him. But, as
in every case, the jury was instructed not to give any evi-
dentiary weight to the questions and statements of attorneys,
Tr. 669, and we presume that the jury followed that instruc-
tion, e.g. United States v. Eberhart, 388 F.3d 1043, 1050
(7th Cir. 2004). As the district court aptly observed,
“Expectations are not evidence, nor are lawyer’s questions . . .
As there was no prejudicial evidence admitted against
Defendant during the cross-examination of Starkopf,
Defendant’s objection at this point is misplaced.” R. 104 at
11.


D. Government’s closing arguments
  Della Rose cites five instances during the government’s
closing arguments in which he believes the prosecutors
made inappropriate remarks that were prejudicial to him.
24                                               No. 03-4230

No objection was raised as to four of the remarks, meaning
that our review is limited to one for plain error alone. In
order to establish plain error, Della Rose must show “not
only that the remarks denied [him] a fair trial, but also that
the outcome of the proceedings would have been different
absent the remarks.” United States v. Sandoval, 347 F.3d
627, 631 (7th Cir. 2003) (internal quotation marks and
citations omitted).
  We detect in the prosecutors’ remarks no error sufficient
to warrant a new trial. The one statement to which a timely
objection was made concerned the prosecutor’s previous
experiences with Della Rose’s counsel, whom he said was
“really good,” had “intimidated me in the past in other
cases,” and had “smack[ed] me around.” Tr. 658. The pros-
ecutor promptly moved on once the defense objected. Al-
though Della Rose rightly observes that these remarks had
nothing to do with the evidence and tended to cast the trial
in terms of a “joust between the prosecutor and defense
counsel,” Della Rose Br. at 38, we can see no way in which
Della Rose’s rights were materially harmed by the remarks.
   As for the other remarks, none rise to the level of plain
error. When the prosecution asked the jury, “Do you believe
James George and all the corroborative evidence that sup-
ports his testimony, or do you believe Steven Della Rose
and all the lies he told Ben Geach and the ARDC and at a
civil deposition under oath to cover his tracks?”, Tr. 610, he
was echoing a view of the case posited by defense counsel
himself, who had previously suggested to the jury that the
case would come down to whom the jurors believed. Tr. 53,
57-58. We do not think that the remark can reasonably be
construed as an invitation automatically to acquit Della Rose
if jurors thought that George or another prosecution wit-
ness had lied or conversely to convict him unless it could
identify a government witness who had lied. Cf. United
States v. Vargas, 583 F.3d 380, 386-87 (7th Cir. 1978). Nor
do we believe that the prosecutor improperly remarked on
No. 03-4230                                                25

the defendant’s decision not to testify in this case when he
contended that there was no evidence other than the “self-
serving statements in Mr. Della Rose’s testimony [in the civil
litigation] and Mr. Della Rose’s letter [to the A.R.D.C.]” that
George had visited Della Rose’s office in April or May, as
the defense posited. Tr. 614. As there is no reason to believe
that Della Rose was the only witness who could have
testified as to when George stopped by Della Rose’s office
(Della Rose had a secretary, for example), we do not think
the remark can be understood as an implicit comment on the
fact that Della Rose himself did not testify. The prosecutor’s
characterization of something that Della Rose had said in
his letter to the A.R.D.C. as “the most ridiculous statement
I’ve ever heard,” Tr. 623, could be understood in part as a
legitimate comment, based on the trial evidence and
reasonable inferences therefrom, on the credibility of the
letter’s assertions. See United States v. Patterson, 23 F.3d
1239, 1250-51 (7th Cir. 1994). To the extent that the “I’ve
ever heard” portion of the remark verged on the prosecutor
offering a personal opinion on credibility, see id. at 1250, it
was not so serious as to have deprived Della Rose of a fair
trial. Finally, the prosecutor’s suggestion that Della Rose,
“a former prosecutor himself,” produced to the A.R.D.C.
photocopies rather than originals of the documents in
George’s file, and destroyed the original settlement check
payable to George, in order to make it more difficult for a
handwriting expert to detect a forged signature, Tr. 660-61,
was an argument with a basis in inferences that could rea-
sonably be drawn from the testimony. It was therefore
within the realm of proper argument.
E. Sentencing
  Della Rose was sentenced in December 2003, more than
a year in advance of the Supreme Court’s recent watershed
decision in United States v. Booker, supra, 125 S. Ct. 738.
At sentencing, the district court made a number of factual
26                                               No. 03-4230

determinations independent of the jury’s verdict which, pur-
suant to the pertinent provisions of the Sentencing Guide-
lines, elevated Della Rose’s offense level and the corre-
sponding sentencing range. Specifically, the court found
that: (1) Della Rose had endeavored to obstruct justice by
attempting (unsuccessfully) to convince an acquaintance to
give false testimony on his behalf, see U.S.S.G. § 3C1.1
(Nov. 2003); (2) that Della Rose knew or should have known
George was a vulnerable victim, in view of his history of
mental and drug problems and the perception that his
charge of fraud would not be credible as a result, see
§ 3A1.1(b)(1); (3) that Della Rose, in defrauding George, had
abused the position of trust that he occupied as George’s
lawyer, see § 3B1.3; and (4) that Della Rose had acted as a
manger or supervisor vis-à-vis Ilenfeld and Romanski, see
§ 3B1.1(c). These enhancements had the effect of increasing
Della Rose’s offense level from an initial level of 12, with a
corresponding sentencing range of 10 to 16 months, to level
20, with a sentencing range of 33 to 41 months. Although
the Booker decision does not preclude a sentencing judge
from making factual findings that have the effect of increas-
ing the Guidelines sentencing range, it does render the
Guidelines advisory rather than mandatory.
  Della Rose did not make a Booker-type objection to the
sentencing methodology that the district court followed, so
our review of the sentence imposed is for plain error. See
Booker, 125 S. Ct. at 769. The district court sentenced Della
Rose believing that the Sentencing Guidelines were manda-
tory, so in retrospect the sentence was erroneous in that
respect. However, in order to establish that the error rises
to the level of plain error, Della Rose must also show that
the error “affect[ed] substantial rights,” Fed. R. Crim. P.
52(b), “which is to say that it made [him] worse off,” United
States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005). We cannot
determine whether Della Rose was prejudiced by the error
without knowing whether the district court would have
No. 03-4230                                                 27

been inclined to sentence him more leniently had it known
that the Guidelines were advisory rather than mandatory.
United States v. Paladino, Nos. 03-2296, et al., 2005 WL
435430, at *8 (7th Cir. Feb. 25, 2005). It has not escaped our
attention that the district court sentenced Della Rose at the
high end of the Guidelines range, but that alone does not
rule out the possibility that the judge might have imposed
a lesser sentence had he known that the Guidelines did not
bind him. The judge picked a sentence at the top of the
range believing that his discretion was confined to the
range specified by the Guidelines; had he realized that his
discretion was broader than that, and had he thought that
the Guidelines range as a whole was too high, then he
conceivably might have sentenced Della Rose to a lesser
term. Id. at *9.
  Pursuant to the course we outlined in Paladino, we there-
fore order a limited remand of the sentence to the district
court so that the court may consider whether it would reim-
pose the original sentence if it were directed to resentence
Della Rose in light of Booker. Paladino, 2005 WL 435430, at
*10. If the district court answers that question in the
negative, indicating that it would have imposed a lesser
sentence had it known that the Guidelines were merely ad-
visory, then plain error will have been established and we
shall vacate the sentence in order to permit resentencing.
Id. If, on the other hand, the district court concludes that it
would reimpose the same sentence, then we shall proceed
to consider whether that sentence is plainly erroneous in
the sense of being unreasonable. Id., citing Booker, 125 S.
Ct. at 765.


                             III.
  For the reasons discussed above, we AFFIRM Della Rose’s
conviction but direct a limited REMAND of the sentence so
that the district court may determine whether it would have
sentenced Della Rose differently had it known that the
28                                            No. 03-4230

Sentencing Guidelines are advisory rather than mandatory.
We retain appellate jurisdiction pending the outcome of the
limited remand we have ordered.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—4-8-05
