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

No. 04-3478
UNITED STATES     OF   AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

RICHARD S. CONNORS,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 01 CR 326—Ronald A. Guzmán, Judge.
                          ____________
   ARGUED OCTOBER 27, 2005—DECIDED MARCH 21, 2006
                    ____________


 Before EASTERBROOK, EVANS, and WILLIAMS, Circuit
Judges.
  EVANS, Circuit Judge. Divorce rates are disturbingly
high. Sometimes, marital splits get nasty when an ex-
spouse decides to dish out a little dose of discomfort to
his or her former partner. And as far as dishing out discom-
fort is concerned, the havoc visited on Chicago lawyer
Richard Connors by his ex-wife would win a gold medal for
creativity. With substantial assistance from his ex, Connors
stands convicted in federal court of (among other things)
violating a law we seldom encounter, the Trading with the
Enemy Act (TWEA), 50 U.S.C. App. §§ 5(b)(1) and 16.
Today, we resolve Connors’s appeal from that conviction.
2                                                No. 04-3478

  After an 11-day jury trial, Connors was found guilty of
smuggling Cuban cigars into the United States in viola-
tion of 18 U.S.C. § 545; one count of conspiracy, 18 U.S.C.
§ 371; one count of making a false statement on a passport
application, 18 U.S.C. § 1542; and violating the TWEA.1 He
was sentenced to a 37-month prison term.
  At the trial, the government’s star witness was Special
Agent John Sheridan of the U.S. Customs Service. Sheridan
spent more than 3 years investigating Connors’s activities.
Only after the trial did Connors learn that Agent Sheridan
had an inside source of information— Connors’s ex-wife,
Nicole Chakalis. Connors now argues that Chakalis’s
involvement in the investigation violated the Fourth
Amendment and that the prosecution’s failure to disclose
the details of her activities before trial deprived him of due
process under Brady v. Maryland, 373 U.S. 83 (1963).
  Sheridan began his investigation in early 1996 after
Chakalis contacted him about one of her ex-husband’s
upcoming trips to Cuba. (Her motives are not entirely
clear—she says she was concerned because Connors
was planning on taking their son with him and getting
him in trouble, but there also appears to have been an
element of spite involved.) Thanks to the information
Chakalis provided, Connors was stopped at the Canadian
border on his way back to the United States, and a
trunkload of Cuban cigars (46 boxes in 4 suitcases—
evidence suggests that they could be sold for something
in the area of $350 per box) was seized along with Connors’s
passport (for which he soon obtained a replacement—more
on that later). Over the next 3 years, Chakalis continued to



1
  Cuba, since shortly after Fidel Castro’s assumption of power
in 1959, has been one of the major targets of the 1917 Act
which, as applicable to this case, imposes an embargo on bring-
ing Cuban products into the United States.
No. 04-3478                                                3

provide Sheridan with information about Connors’s travels,
dealings, and associates—information she was able to
obtain by renewing her relationship with Connors and
spending weekends at his house.
  Chakalis’s information, and other evidence gathered in
the investigation, disclosed that Connors ran a fairly
lucrative Cuban cigar smuggling operation. Traveling
from places like Toronto and Cancun, he made some 31
trips to Cuba between 1996 and 1999. And Cuban cigars
have a definite cachet:2 Despite some controversy over
the degree to which Cuba (where tobacco was first en-
countered by European explorers) has been able to maintain
the quality of its cigars under communist rule, it is undis-
puted that the leaves grown in the fertile soil of the Vuelta
Abajo, in the western province of Pinar del Río, cultivated
and prepared according to centuries-old traditions, produce
an incomparably smooth, pungent, and full-bodied smoke.
See James Suckling, “On the Road to Tobacco Country: A
journey into the Vuelta Abajo, land of the world’s best cigar
leaves,” Cigar Aficionado magazine, May/June 2001.
  Connors was unaware of his ex-wife’s cooperation until
after the trial when, apparently remorseful, she told him
what she had done. At a post-trial hearing, she testified
that Sheridan not only asked her to cozy up to Connors
but also suggested that she obtain incriminating documents
from his house and place them in the trash for Sheridan to
retrieve. Connors argues that this amounted to an illegal
search under the Fourth Amendment, with Chakalis, in
effect, acting as Sheridan’s agent. See Coolidge v. New
Hampshire, 403 U.S. 443, 487 (1971); United States v.
Shahid, 117 F.3d 322, 325 (7th Cir. 1997). But Sheridan,


2
  Actually, all cigars do; as Rudyard Kipling noted in The
Betrothed, “[A] woman is only a woman, but a good cigar is a
Smoke.”
4                                                No. 04-3478

although acknowledging that he recovered a number of
pieces of evidence from Connors’s garbage, denied urging
Chakalis to put the pieces there for him to find.
   The district court found no Fourth-Amendment viola-
tion. For one thing, the court was uncertain that the
activities Chakalis described even amounted to an illegal
search, given that Connors himself welcomed her into his
home. More important, the court didn’t believe that things
unfolded the way Chakalis described. The court found
particularly suspicious the documentation Chakalis pro-
duced to corroborate her story—a printout of a computer-
ized journal recounting her dealings with Sheridan, includ-
ing his suggestion that she convey documents to
him through the trash. Chakalis claimed that the print-
out reflected the journal in its original form without any
later editing, but the court found numerous entries that
referred to events after the dates on which they were
supposedly written. Also, when testifying about the
journal at the hearing, Chakalis could not recall basic
facts about it, such as the name of the computer file in
which it was kept. Finding the journal an unreliable source
of corroboration, the court credited Agent Sheridan’s
testimony that he was neither involved in nor aware of any
illegal search that Chakalis may have undertaken.
  Connors renews his argument that Chakalis’s participa-
tion in Sheridan’s investigation violated the Fourth Amend-
ment and that all of the evidence recovered as a result of
her participation should have been suppressed. The fact
that Chakalis was spying on Connors and exploiting his
misplaced trust in her does not by itself amount to a
constitutional violation, even if it was at the behest of the
government. See Hoffa v. United States, 385 U.S. 293, 302
(1966). When a friend is false, blame the friend, not the
government. Rummaging through Connors’s private files for
incriminating documents, however, may be another matter,
see id. at 301, but only if Sheridan directed or acquiesced in
No. 04-3478                                                5

it, see Shahid, 117 F.3d at 325. The district court concluded
that Sheridan did not know of any illegal rummaging and
that Chakalis’s contrary testimony was not credible; the
question for us is whether that was a reasonable conclusion.
Connors argues that it wasn’t. He suggests that Sheridan
must have realized Connors was too cautious to throw away
incriminating documents and therefore must have known
the items he found in the trash were put there by Chakalis.
Maybe Sheridan could have drawn that inference, but
criminal investigators are not required to assume that their
targets always act prudently. The only evidence that
Sheridan knew of Connors’s cautiousness comes from
Chakalis’s journal, in which she reports telling Sheridan
that Connors “never throws anything out.” But the district
court found, as we said, the contents of that journal to be
unreliable, and Connors has given us no reason to reject
that finding.
  Connors also argues that the government violated his
right to due process by withholding any inkling about
Chakalis’s involvement in the investigation. In general,
however, the government is not required to reveal the
identity of nontestifying confidential informants unless the
information is relevant and helpful to the defense. See
Rovario v. United States, 353 U.S. 53, 59-62 (1957); United
States v. Banks, 405 F.3d 559, 564 (7th Cir. 2005). Connors
doesn’t argue that knowing the informant’s identity
would have helped his defense, but rather that there was
other material in Sheridan’s confidential informant file that
would have allowed him to impeach Sheridan’s trial
testimony. Specifically, the file shows that Chakalis at
one point told Sheridan that Connors was able to devote
himself to his cigar-related activities because of a large
settlement he had won several years earlier in a personal-
injury lawsuit, thus freeing him from the need to work for
a living. But at trial, Sheridan denied knowing that
Connors had any source of income other than cigar import-
6                                                No. 04-3478

ing. According to Connors, if he had been given access to
Sheridan’s C.I. file he would have been able to show that
this was a lie. But in order to present a concern under
Brady, the withheld information must be material to the
issue at trial. See Ienco v. Angarone, 429 F.3d 680, 683
(7th Cir. 2005). Connors argues that Sheridan’s testimony
may have led the jury to believe that he had no legitimate
income and thus needed cash from his illegal cigar import-
ing to get by. But Sheridan didn’t testify that there was
no settlement, only that he didn’t know about it. Sheridan’s
knowledge of the settlement has no bearing on Connors’s
guilt or innocence, and Connors was not inhibited from
presenting to the jury the fact of the settlement itself. The
withholding of the confidential informant file did not
prejudice the trial’s outcome.
  While the arguments Connors advanced so far have merit,
his remaining claims are borderline frivolous. He says the
evidence was insufficient to convict him of smuggling
“Cuban” cigars because the government didn’t perform an
analysis to prove that the cigars seized from him actually
came from Cuba. He argues that it is not enough that the
cigars themselves were marked as having been made in
Cuba. He cites Kennedy v. United States, 44 F.2d 131, 133
(9th Cir. 1930), for the proposition that “the court may not
take judicial notice of the fact that the labels [on allegedly
contraband merchandise] are what they purport to be.” But
there was no judicial notice here—the evidence was submit-
ted to a jury (the cigars themselves, along with the evidence
of Connors’s frequent trips to Cuba), and the jury permissi-
bly concluded that one plus one equals two and the cigars
must have come from Cuba.
  Connors similarly challenges his conviction for making a
false statement on a passport application. After customs
officials took his passport from him at the Canadian border,
Connors applied for a replacement. On the application,
No. 04-3478                                                7

under the heading “Lost/Stolen Passport Information,”
Connors wrote: “My passport is missing since 4-7-96 while
I was visiting friends in Canada and returning to
the United States.” He now argues that this was literally
true—that “missing” means nothing more than “no longer
possessed”—and therefore his statement cannot support
a conviction under 18 U.S.C. §1542. Make this claim to
a nonlawyer and you’re liable to get a “you can’t be serious”
response. The jury obviously got it right: Connors’s passport
was retained by U.S. government authorities; it was not
“missing” in any common sense understanding of the word.
  Finally, Connors raises an argument based on United
States v. Booker, 543 U.S. 220 (2005), pointing out that the
district court enhanced his sentence based on several
factual findings of its own making. Normally, such a
situation calls for a limited remand under United States
v. Paladino, 401 F.3d 471 (7th Cir. 2005), with the possibil-
ity of eventual resentencing. But Connors goes further,
arguing that resentencing under the remedial holding
of Booker would violate the Constitution’s ex post facto
clause and that we should therefore simply reduce his
sentence to the maximum available under the sentenc-
ing guidelines in the absence of the prohibited enhance-
ments, which in his case is 6 months. We rejected a similar
argument in United States v. Jamison, 416 F.3d 538, 539
(7th Cir. 2005), and we see no reason why we should
reconsider that argument here. Therefore, with respect to
Connors’s sentence we order a LIMITED REMAND in accor-
dance with Paladino, retaining jurisdiction over the case. In
all other respects the judgment of the district court
is AFFIRMED.
8                                         No. 04-3478

A true Copy:
      Teste:

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




               USCA-02-C-0072—3-21-06
