U.S. v. Pryor, 94-1442

• Decision Date: 22 August 1994
• Docket Number: No. 94-1442,94-1442
• Citation: 32 F.3d 1192
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyrone PRYOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1192

32 F.3d 1192

UNITED STATES of America, Plaintiff-Appellee, v. Tyrone PRYOR, Defendant-Appellant.

No. 94-1442.

United States Court of Appeals, Seventh Circuit.

Argued Aug. 2, 1994.

Decided Aug. 22, 1994.

Daniel P. Bach, Asst. U.S. Atty., Madison, WI (argued), for plaintiff-appellee.

Peter L. Steinberg, King Street Alternative Law Office, Inc., Madison, WI (argued), for defendant-appellant.

Before COFFEY, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Tyrone Pryor drove Rochelle Mallit and her children to a social security office, where she was arrested for making false statements in an effort to obtain a social security number and card. Mallit's arrest raised the question what was to become of her children, still in the parking lot with Pryor. The agents who arrested Mallit could not simply ignore the children. See White v. Rochford, 592 F.2d 381 (7th Cir.1979). They did not know whether the man in the parking lot would care for them. So they asked him (and the children) to come inside, where they posed a few questions.

Pryor told John Isely, an agent of the Inspector General's Office of the Department of Health and Human Services, that he was "Michael Recob." He produced a driver's license and social security card in the name "Michael Scott Recob." Although Isely and his companion Deputy U.S. Marshal John Donahue did not know it yet, Michael Scott Recob had died in 1964, and Pryor had procured the social security card by deceit and used it to obtain a driver's license. Pryor was not carrying a license in his own name because it had been suspended, and he could not legally drive. Isely wrote the name and social security number in his notebook; Donahue checked and found that Recob was not a fugitive. Mallit said that her children could stay with "Recob" until her release, and he left with them while Isely and Donahue took Mallit to be booked. The entire procedure lasted less than 15 minutes. After Isely discovered that the real Michael Scott Recob had been buried long ago (at the age of seven days), Pryor was tracked down through a telephone number he had given to Mallit and charged with using a social security number obtained on the basis of false information. 42 U.S.C. Sec. 408(a)(7)(A). A jury convicted him of this offense, and the court sentenced him to eight months' imprisonment plus three years of supervised release.

Section 408(a)(7)(A) condemns

willfully, knowingly, and with intent to deceive, [using] a social security account number, assigned by the Secretary ... on the basis of false information furnished to the Secretary....

According to Pryor, the evidence is insufficient because the prosecutor did not establish the mental state essential to the offense. When Isely asked for identification, Pryor contends, he pulled out of his pocket whatever happened to be there. Although these documents had been obtained by fraud, he did not present them to Isely "willfully, knowingly, and with intent to deceive". As his lawyer put it at oral argument, Pryor believes that he was "unlucky": he planned to cozen traffic police rather than federal officials. But this "explanation" shows that deceit was the only reason for obtaining and carrying these documents. That Pryor planned to bilk local rather than federal officials is no defense. Cf. United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). Isely and Donahue wanted to find out whether Mallit's children safely could be entrusted to Pryor; he furnished credentials that prevented an accurate inquiry. Pryor readily could have told them his true name; he could have left the papers in his pocket; instead he lied and backed up the falsehood with fraudulently obtained documents. A jury could conclude, without departing from rationality, that Pryor acted "willfully, knowingly, and with intent to deceive".

At trial Pryor also argued that he had not employed "a social security account number, assigned by the Secretary". Isely's notebook records the name "Michael Scott Recob" and a social security number one digit different from Recob's. If the number in the notebook was the number on the card, then, Pryor believes, his conduct falls outside the statute. Isely testified that he had recorded the number incorrectly. Pryor asked the judge to instruct the jury that:

If a party offers weaker or less satisfactory evidence when stronger or more satisfactory evidence could have been produced at trial, you may, but are not required to consider this fact in your deliberations.

Notes are weak evidence, Pryor argued, when Isely could have made and produced a photocopy of the documents. The judge declined to give this instruction, lifted from a formulary. He might have declined on the ground that it is pabulum. Telling the jury that it may, but needn't, "consider" a fact is not informative. Of course the jury may consider the strength of the evidence. Why give vapid instructions that add nothing to the arguments of counsel? What Pryor may have had in mind is a parallel to a missing-witness instruction, which tells the jury it may draw an inference that the evidence not produced would have been adverse to the party who could have, but did not, produce it. We have discouraged the giving of such instructions on the ground that they, too, duplicate arguments of counsel and breed unnecessary disagreements about when evidence was indeed peculiarly within the control of a given party. See United States v. Sblendorio, 830 F.2d 1382, 1390-94 (7th Cir.1987). At all events, an adverse-inference instruction is appropriate only if there is other evidence. If Isely had made a photocopy and the prosecution failed to produce it, Pryor could have asked the jury to infer that the photocopy would have undercut the case against him. See Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 474, 83 L.Ed. 610 (1939). But Isely did not copy the documents, so there was no basis for such an inference, and the judge acted well within his discretion in rejecting the banal instruction Pryor proposed.

Having denied guilt and put the prosecution to its proof on every element of the offense, and having argued even on appeal that he is not guilty, Pryor also contends that the district judge erred by withholding a two-level reduction for acceptance of responsibility. He did not accept responsibility; to this day he denies guilt. The reduction provided by U.S.S.G. Sec. 3E1.1 is designed to differentiate defendants whose pleas of guilty not only save judicial and prosecutorial time but also presage a lower risk of recidivism. Extending the reduction to persons such as Pryor who deny every element of the offense would prevent the achievement of these objectives. Frivolous arguments such as this may color an appellate court's perception of the defendant's other contentions. See United States v. Gomez, 24 F.3d 924, 926 (7th Cir.1994). Counsel must recognize that confining their presentation to...