United States v. McKnight

• Decision Date: 06 February 2012
• Docket Number: No. 10–2297.,10–2297.
• Citation: 671 F.3d 664
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ondray McKNIGHT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

671 F.3d 664

UNITED STATES of America, Plaintiff–Appellee,

v.Ondray McKNIGHT, Defendant–Appellant.

No. 10–2297.

United States Court of Appeals, Seventh Circuit.

Feb. 6, 2012.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07–cr–00263–4—Rebecca R. Pallmeyer, Judge.Lindsay Jenkins, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Jonathan E. Hawley, Federal Public Defender, Andrew J. McGowan, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, RIPPLE, MANION, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER and HAMILTON, Circuit Judges.

On Petition for Rehearing En Banc

On consideration of the petition for rehearing with suggestion for rehearing en banc filed by defendant-appellant and the answer of plaintiff-appellee, all of the judges on the original panel voted to deny rehearing and a majority of the judges in active service voted to deny rehearing en banc. Judge Posner dissented from the denial of rehearing en banc and filed an opinion which was joined by Judges Kanne and Williams.

The petition for rehearing is denied.

POSNER, Circuit Judge, with whom KANNE and WILLIAMS, Circuit Judges, join, dissenting from denial of rehearing en banc.

The appeal presents an important question that deserves the attention of the full court: the propriety of gratuitous jury instructions in criminal cases, which is to say instructions that do not address an issue in the case. Such instructions are apt to confuse jurors, and when as in this case they are proposed by a party rather than given on the initiative of the trial judge, they may be intended to confuse, and in the present case to undermine the efficacy of an instruction desired by the opposing party and given by the judge.

Before the trial in this drug conspiracy case began, the government filed a motion in limine to bar evidence or argument that would be likely in the government's view to incline the jury to acquit the defendant even if his guilt had been proved beyond a reasonable doubt—what is called “jury nullification,” a legitimate concern of prosecutors because acquittals cannot be appealed. One of the government's concerns arose from the fact that, as is typical in drug cases, the prosecution was intending to rely heavily, for proof of the defendant's guilt, on wiretap and other surveillance evidence and on evidence provided by informers and undercover officers, including evidence based on controlled buys by the informers. It claimed to be worried that jurors might think such investigative techniques illegal or improper, and therefore might vote to acquit the defendant even if they were convinced of his guilt. So as part of the motion in limine the government asked that the defense be barred from challenging the legality or propriety of those investigative techniques.

That part of the motion is only a page and a half long, and it provides no empirical or other grounding for believing that jurors would be apt to “nullify” on the basis of indignation at the use of such techniques. Concern is expressed from time to time that members of minority groups who believe themselves to be targets of police harassment would as jurors refuse to convict guilty defendants, but all the government said in support of its motion to prevent the defense in this case from making claims of “outrageous government conduct” is that there is an “increasing tendency to interject themes of ‘government misconduct’ into a defense strategy.” The government presented no evidence to support the claim of an “increasing tendency,” or indeed of any tendency, or to suggest that defense counsel might be planning to inject such “themes” into the trial of this case.

Nevertheless it certainly would be improper to permit defense counsel to challenge the propriety of the deceptive investigative techniques employed by the government in this case, for in fact they are entirely proper; and so the judge rightly granted the motion.

During voir dire, no juror was asked whether he or she had a problem with evidence obtained by such techniques, and during the trial the defense scrupulously obeyed the judge's order not to make an issue of the propriety of the government's investigative techniques. Yet at the instructions conference at the end of the trial the government pulled a rabbit out of its hat by unexpectedly asking the judge to instruct the jury that

sometimes the government uses undercover agents and undercover informants who may conceal their true identities in order to investigate suspected violations of law. In the effort to detect violations of the law, it is sometimes necessary for the government to use ruses, subterfuges and employ investigative techniques that deceive. It is not improper or illegal for the government to use these techniques, which are a permissible and recognized means of criminal investigation. Whether or not you approve of such techniques, should not enter into your deliberations.

The judge gave the instruction—over the defendant's objection—verbatim.

The panel recognized that

the giving of unnecessary instructions raises the distinct possibility of cluttering the instructions taken as a whole and, consequently, deflecting the jury's attention from the most important aspects of its task. See, e.g., United States v. Hill, 252 F.3d 919, 923 (7th Cir.2001) (“Unless it is necessary to give an instruction, it is necessary not to give it, so that the important instructions stand out and are remembered.”). There is also a possibility that singling out this aspect of the case might be interpreted by the jurors as at least indirect approval of the effectiveness of the Government's management of the investigation. The decision as to whether to give an instruction such as the one in question, of course, must be the product of an affirmative act of judicial discretion. Our difficulty here is that the district court did not elaborate on its reasons for giving the instruction.

These are sensible precepts; gratuitous instructions confuse, and should not be given. Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir.1985) (en banc); Heater v. Chesapeake & Ohio Ry., 497 F.2d 1243, 1249 (7th Cir.1974); Clark v. Burlington Northern, Inc., 726 F.2d 448, 452 (8th Cir.1984); Michaud v. United States, 350 F.2d 131, 133 (10th Cir.1965); 9C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2556, pp. 112–33 (3d ed.2008). In Llaguno, a civil rights suit against police, we said: “The judge told the jury that in evaluating the defendants' behavior it should ‘not use 20/20 hindsight,’ and ‘should consider the responsibility of the police to prevent crime, apprehend criminals, and to safeguard persons and property from criminal actions.’ These instructions were not wrong in the sense of stating...