U.S. v. Cook, 96-1814

• Decision Date: 05 December 1996
• Docket Number: No. 96-1814,96-1814
• Citation: 102 F.3d 249
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert E. COOK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 249

102 F.3d 249

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. COOK, Defendant-Appellant.

No. 96-1814.

United States Court of Appeals Seventh Circuit.

Argued Oct. 28, 1996.

Decided Dec. 5, 1996.

Mel S. Johnson (argued) and Mario Gonzales, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

John A. Ward, Kenosha, WI, for Defendant-Appellant.

Before POSNER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

While employed by Wisconsin Armored Transport, Robert Cook hijacked an armored car containing some $260,000 bound for a federally-insured bank. He parked some of the proceeds in a Cayman Islands bank under an assumed name for use in raising a private army to wage war on abortion clinics. Cook attempted to hire Joseph Martino to serve in the campaign, which as Cook recounted into Martino's tape recorder (he was in the pay of the FBI) would include a raid on a National Guard Armory to obtain military weapons, to be used to slaughter workers and patients at the clinics. By the time he was arrested, Cook had amassed an arsenal including two AR-15 assault rifles, four handguns, four crossbows, and plenty of ammunition. Martino was the star witness against Cook at trial, which ended in three convictions (bank larceny, money laundering, and solicitation to commit murder) and a sentence of 176 months' imprisonment.

Cook's objection to the sentence does not occasion much discussion. The guideline for solicitation of murder, U.S.S.G. 2A1.5, sets a base offense level of 28, plus 4 if something of value was offered for the deed. The district judge departed from level 32 to level 34 on account of Cook's weapons cache. Other provisions of the Sentencing Guidelines provide a two-level increase for weapons possessed in connection with the crime, e.g., § 2B5.1(b)(3), § 2D1.1(b)(1), and omission of such a provision from § 2A1.5 does not reflect a decision by the Sentencing Commission that adjustments are inappropriate. Possession of weapons that can be used to commit the murders was not considered, one way or the other, by the Commission, so a departure on this basis is permissible. Koon v. United States, --- U.S. ----, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); U.S.S.G. 5K2.6. Two levels is a modest adjustment--what the Guidelines specify for a single pistol, while Cook had more, and more deadly, weapons. He was substantially more dangerous than the usual person who sets out to hire someone else to commit a murder: he had both a ready cash reserve and a hoard of guns for use in a lethal campaign. The crime that produced the cash did not contribute to the length of the sentence, and this too could have been a basis of departure. Bank larceny and solicitation to commit murder were placed in separate groups under U.S.S.G. 3D1.2. Because the offense level of the solicitation offense was more than nine levels greater than that of the larceny, the larceny dropped out of the calculation. U.S.S.G. 3D1.4(c). As the Background Note to this section observes, the crime thus disregarded may be so serious that departure is justified to reflect its gravity. So the district court could have added additional levels for the theft. Cook should count himself fortunate; a higher sentence could have been imposed within the Guidelines' framework.

Cook's more substantial argument concerns the instructions to the jury. Martino received a total of $3,500 for his role in the investigation. After Cook tried to recruit Martino, the FBI asked him to record future negotiations and paid $500 for this service. When Cook later concluded that Martino was aiding the FBI and threatened violent retaliation, agents told him to get out of town quickly and gave him $3,000 for expenses during six weeks' absence. These payments were brought out at trial, and Cook asked the judge to instruct the jury that Martino's testimony must be "weighed ... with greater care than the testimony of a witness who is not so motivated." This is the full instruction he proposed:

The testimony of an informant, someone who provides evidence against someone else for money, or to escape punishment for his own misdeeds or crimes, or for other personal reason or advantage, must be examined and weighed by the jury with greater care than the testimony of a witness who is not so motivated.

Joseph Martino may be considered to be an informant in this case.

The jury must determine whether the informer's testimony has been affected by self-interest, or by the agreement he has with the government, or by his own interest in the outcome of this case, or by prejudice against the defendant.

The district judge declined to give this instruction for two reasons. First, the judge stated, an informant instruction is appropriate only when the witness has "a need or an interest in escaping punishment for his own misdeeds or crimes." Martino did not rat on Cook for a combination of money and lenience; instead he was a volunteer compensated for lost employment opportunities and expenses necessitated by Cook's dangerousness. Second, the judge concluded, the general credibility instruction offered Cook's lawyer ample scope to argue that Martino's testimony should be discounted. Here is the instruction the court gave, derived from 1 Federal Criminal Jury Instructions of the Seventh Circuit § 1.02 (1980):

You are the sole judges of the credibility of the witnesses, and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his or her intelligence, his or her ability and opportunity to observe, his or her age, his or her memory, his or her manner while testifying, any interests, bias, prejudice he or she may have and the reasonableness of his or her testimony considered in light of all the evidence in the case.

The prosecutor urges us to affirm for both of the district court's reasons.

We have substantial doubt about the first. Although Cook's proposed instruction, based on Edward J. Devitt, Charles B. Blackmar, Michael A. Wolff & Kevin F. O'Malley, 1 Federal Jury Practice & Instructions § 15.02 (1992), mentions a motive of escaping punishment, this is the result of combining topics usually handled separately. This circuit's pattern jury instruction 3.20 (1 Federal Criminal Jury Instructions of the Seventh Circuit) zeroes in on informers:

You have heard testimony that ______________ has received benefits from the government in connection with this case.

You may give his testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care.

Instruction 25 in Pattern Criminal Jury Instructions (Federal Judicial Center 1987) is similar in scope but concentrates the jury's attention on the reason for being skeptical:

You have heard the testimony of ____________. He has an arrangement with the government under which he gets paid for providing information about criminal activity. The government may present the testimony of such a person. Some people who get paid for providing information about criminal activity are entirely truthful when testifying. Still, you should consider the testimony of ____________ with more caution than the testimony of other witnesses. Since he may believe that he will continue to be paid only if he produces evidence of criminal conduct, he may have reason to make up stories or to exaggerate what others did. In deciding whether you believe ____________'s testimony, you should keep these comments in mind.

What Instruction 3.20, Instruction 25, and the Devitt & Blackmar instruction have in common--and what differentiates them from the general credibility instruction the court gave--is the idea that testimony from witnesses who have been paid for assistance should be received with greater skepticism ("greater care" or "caution and great care" or "more caution") than the testimony of other witnesses. Cum grano salis follows from payment, and not solely from the prospect of a reduction in exposure to criminal punishment, as the district judge believed. Lower punishment is one coin in which witnesses may be paid, but not the only coin.

The argument for giving an informant instruction appears in the text of the Federal Judicial Center's version: an informant may invent or exaggerate matters to obtain extra compensation. Greed may affect not only reports of crime but also reports of threats afterward. Perhaps Martino wanted a paid vacation and attributed threats to Cook in order to get a bankroll. But the argument against giving such an instruction is equally straightforward: the informant's motive can be spelled out by counsel (if it is not admitted on cross-examination) and considered under the general credibility instruction. Jury instructions should be as short as possible in order to focus jurors' attention on what really matters. Repetition of things jurors already know may lead them to nod while the judge says something important, or to assume that the instructions contain nothing but bromides. An instruction that does not convey valuable information should not be given. Both Seventh Circuit Instruction 3.20 and Federal Judicial Center Instruction 25 are preferable to the Devitt & Blackmar instruction--Instruction 3.20 because it is shorter, and Instruction 25 because it asks the jury to consider the reason why an informant may lie. But should either instruction be given?

A special instruction about informants implies that their testimony remains less reliable than that of other witnesses even after all arguments pro and con about bias have been considered. Yet why should that be so? Many witnesses in criminal cases are unreliable--they are the defendant's confederates in crime, or live in the shadows of the law. Many are convicted felons who have demonstrated unwillingness to abide by the law, including the law against perjury. Even victim eyewitnesses may give unreliable...