United States v. Darif, Anouar

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3377

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANOUAR DARIF,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04 CR 40047—Joe Billy McDade, Chief Judge.

____________

ARGUED MARCH 30, 2006—DECIDED MAY 3, 2006

____________

Before FLAUM, Chief Judge, and MANION and WILLIAMS,

Circuit Judges.

FLAUM, Chief Judge. Defendant-Appellant Anouar

Darif (“Defendant”), was charged in a three-count super-

ceding indictment with conspiracy to commit marriage

fraud, in violation of 18 U.S.C. § 371, marriage fraud, in

violation of 8 U.S.C. § 1325(c), and witness tampering, in

violation of 18 U.S.C. § 1512(b)(1). The first two counts were

based on allegations that Defendant, a native of Morocco,

paid $3000 to Dianna Kirklin (“Kirklin”), an American

citizen, to marry him and help him obtain a United States

visa. The third count was based on a letter that Defendant

sent to Kirklin while he was in jail pending trial, in which

2 No. 05-3377

he urged Kirklin to contradict testimony she gave before the

grand jury in Defendant’s case.

Before proceeding to trial, Defendant filed a motion in

limine seeking to prevent the government from introduc-

ing into evidence letters he had written to Kirklin. Defen-

dant also filed a motion to dismiss for improper selective

prosecution. The district court denied both of Defendant’s

motions. The district court also rejected several of De-

fendant’s proposed jury instructions. A jury found Defen-

dant guilty on all three counts. Defendant appeals. For the

following reasons, we affirm.

I. Background

In November 2000, Ouaffa Melliani offered Dianna

Kirklin a deal: Kirklin would receive $3000 if she flew to

Morocco, married Defendant, and helped Defendant ob-

tain paperwork necessary to stay in the United States.

Melliani had known Defendant while she was also living in

Morocco, but Kirklin and Defendant were strangers.

Defendant had tried and failed on two previous occasions to

obtain a United States visa. Kirklin accepted Melliani’s

offer. Melliani provided Kirklin with detailed written

instructions about how to behave when she arrived in

Morocco, especially when dealing with the American

Embassy. Melliani also gave Kirklin $1000, with the

remaining $2000 to be paid when Kirklin returned from

Morocco.

Kirklin flew to Morocco, arriving on Saturday, November

25, 2000. Defendant met Kirklin at the airport, holding

a sign with her name written on it, and greeted her with a

handshake. The following Monday, Defendant and Kirklin

began visiting various government offices in Morocco to

obtain the paperwork necessary to marry. On December 5,

2000, Defendant and Kirklin were married. They celebrated

at a party with Defendant’s family and friends. They did not

No. 05-3377 3

consummate the marriage and stayed in separate rooms for

the remainder of Kirklin’s trip. Defendant helped Kirklin

fill out an I-130 Petition for Alien Relative form, which

Kirklin would later submit to the Immigration and Natural-

ization Service (“INS”) to begin the process of obtaining a

visa for Defendant.

Kirklin left Morocco on December 14, 2000. Defendant

remained in Morocco, waiting to obtain a United States

visa. Melliani paid Kirklin the remaining $2000. On

December 26, 2000, Kirklin submitted the Petition for Alien

Relative form to the INS. The INS approved the petition on

April 14, 2001.

On November 8, 2001, Defendant submitted to the United

States Consulate in Morocco an application for a visa to

enter the United States, based on his status as a spouse of

a United States citizen. The consulate issued Defendant a

visa that day. On December 10, 2001, Defendant presented

the visa to United States Immigration in Chicago and was

admitted into the United States as a spouse of a United

States citizen. Defendant went to Kirklin’s home in Rock

Island, Illinois, where he allegedly believed he would be

living. Kirklin initially told Defendant that he could not

stay with her. She claims to have felt sorry for him, how-

ever, and let him live with her for three months before she

asked him to leave. Defendant then moved into an apart-

ment with Melliani. He later took a job as a long-distance

truck driver, which required him to be on the road for long

stretches of time. While living apart from Kirklin, Defen-

dant claims to have corresponded with her on a regular

basis, taken her out to dinner numerous times, and at-

tended her family functions. The couple filed joint federal

and state tax returns and opened a joint bank account.

Defendant and Kirklin, however, did not consummate their

marriage, and there was evidence that Defendant had a

sexual relationship with another woman during the time he

was married to Kirklin.

4 No. 05-3377

On June 16, 2004, Defendant and Melliani were jointly

charged with conspiracy to commit marriage fraud. Defen-

dant also was charged with a substantive count of marriage

fraud. Both counts against Defendant were based on his

marriage to Dianna Kirklin in December 2000. Melliani was

charged with a substantive count of marriage fraud. Both

counts against Melliani were based on Melliani’s marriage

to Jeremy Cozadd (“Cozadd”) in January 2002. The charge

alleged that Melliani paid Cozadd $5000 to marry her after

her United States visa expired.

On September 10, 2004, Melliani plead guilty to Count

Four and was sentenced to time served and two years

supervised release. Defendant’s case remained scheduled

for trial on January 24, 2005. On December 16, 2004, the

government filed a superceding indictment against De-

fendant. The new indictment included the conspiracy to

commit marriage fraud and marriage fraud counts, and

added a new count for witness tampering, which allegedly

occurred in October 2004.

Defendant filed a motion to dismiss due to selective

prosecution, arguing that the government acted improperly

by prosecuting Defendant and Melliani, who were Arabs,

and not charging the two alleged American co-conspirators,

Kirklin and Cozadd. The district court denied the motion.

Defendant also filed a motion in limine regarding the

marital communications privilege. Defendant requested

that the district court prohibit the government from

introducing correspondence between Defendant and Kirklin.

The content of one of those letters was the basis for the

witness tampering offense added to Defendant’s

superceding indictment. The district court found that the

marital privilege did not apply and denied the motion.

Defendant’s case went to trial on April 25, 2005. During

the government’s case in chief, the district court granted the

government’s motion to give Kirklin immunity in return for

No. 05-3377 5

her testimony. The district court then stated, in response to

a question by defense counsel, that the marital testimonial

privilege was not available to Kirklin and that she was

required to testify against Defendant.

After the close of the government’s evidence, the district

court denied Defendant’s renewed motions regarding

selective prosecution and marital privilege and denied

Defendant’s motion for judgment of acquittal. The district

court also rejected several of Defendant’s proposed jury

instructions on the marriage fraud counts. On April 27,

2005, the jury convicted Defendant on all three counts.

On August 5, 2005, the district court sentenced Defendant

to 21 months imprisonment on each count, to run concur-

rently, three years supervised release, and a $300 special

assessment.

II. Discussion

A. Marital Privileges

Defendant raises two challenges related to marital

privilege: first, that the district court erred by finding that

the marital communications privilege did not prevent

disclosure of letters Defendant wrote to Kirklin while he

was in jail; and second, that the district court erred by

finding that Kirklin could not assert the marital testimonial

privilege and refuse to testify as a witness for the govern-

ment.

“We review the trial court’s resolution of a marital

privilege issue for an abuse of discretion.” United States v.

Westmoreland, 312 F.3d 302, 306 (7th Cir. 2002). “[S]pecial

deference is given to the evidentiary rulings of the district

court.” United States v. Lea, 249 F.3d 632, 641 (7th Cir.

2001). If we find that evidence barred by a marital privilege

was improperly admitted, “we must determine whether the

error was harmless.” Westmoreland, 312 F.3d at 309.

6 No. 05-3377

1. Marital communications privilege

The marital communications privilege, which Defendant

attempted to assert before the district court, “applies only to

communications made in confidence between the spouses

during a valid marriage.” Lea, 249 F.3d at 641. The privi-

lege may be asserted by either spouse. Id. It “exists to

ensure that spouses generally, prior to any involvement in

criminal activity or a trial, feel free to communicate their

deepest feelings to each other without fear of eventual

exposure in a court of law.” Westmoreland, 312 F.3d at 307

n.3.

Prior to trial, Defendant filed a motion in limine seek-

ing to prevent the government from introducing into

evidence several letters written between Defendant and

Kirklin. One of these letters, written by Defendant and

postmarked October 12, 2004, formed the basis of the

witness tampering count. The letter stated, in relevant part:

Dianna Don’t be scared for no body

I know [the INS agent] told you “in stade to have two

person in prison we will have three”. see just for those

words that is unconstitutional. there is nothing nothing

they will do to you nothing. even if you change the hole

thing you told them, One: you can say I was under

pressure; two: you can say that at that time you for-

got to take your medecin. three: you can just say

that my husband and I we were having a family

problemes at the time and after that we worked it out

and we are just fine now. the maximum points you will

have if you lie or change what you said in front of the

grand jury is 4 point wich means 3 to 4 months in

prison or 6 month pro or 2,500 Dollars fine. that’s

according to the “federal sentencing gide line” and that

No. 05-3377 7

for a normal person, not some one who has a permanent

brain damage. and that for a crimmel case, like murder.

The district court found that the letters were not subject

to the marital communications privilege because the

marriage was entered into fraudulently. The district

court also found the marital communications privilege

inapplicable because the spouses were joint participants

in the underlying marriage fraud.

We affirm the district court’s decision that the marital

communications privilege does not apply, based on the

court’s reasoning that Defendant and Kirklin were joint

participants in the marriage fraud scheme. The marital

communications privilege “places a limitation on truthful

disclosure.” Westmoreland, 312 F.3d at 307. However, “we

have recognized an exception to the privilege when spouses

are joint participants in the underlying offense.” Id. (citing

United States v. Short, 4 F.3d 475, 478 (7th Cir. 1993)).

“[W]e do not value criminal collusion between spouses, so

any confidential statements concerning a joint criminal

enterprise are not protected by the privilege.” Short, 4 F.3d

at 478.

In this case, the superceding indictment alleged that

Kirklin was a co-conspirator with Defendant in the underly-

ing marriage fraud offense. In his October 12, 2004 letter to

Kirklin, Defendant tried to persuade Kirklin to testify

differently than she did before the grand jury and suggested

certain stories Kirklin could tell. He also tried to persuade

Kirklin that if she “lie[d] or change[d] what [she] said in

front of the grand jury,” she would receive only a short

prison sentence.

Defendant maintains that the privilege was not destroyed

by the joint crime exception because the October 12, 2004

letter “had nothing to do with the alleged joint criminal

activity that occurred in December 2000”—i.e., commission

of the underlying marriage fraud. Defendant’s point seems

8 No. 05-3377

to be that in the letter he suggested a whole new crime—

witness tampering—which Kirklin had not contemplated or

agreed to. According to Defendant, the joint crime exception

would apply only if the letter discussed and attempted to

further the marriage fraud. Defendant fails to recognize

that the letter does relate to the underlying marriage fraud:

in it, Defendant urged Kirklin to change her testimony at

his trial to evade the marriage fraud charges and specifi-

cally referenced the grand jury proceedings at which Kirklin

testified that she entered into the marriage fraudulently.1

In sum, we find that the October 12, 2004 letter was

admissible under the joint crime exception to the marital

communications privilege. We therefore find it unnecessary

to determine whether the privilege would also be inapplica-

ble because Defendant and Kirklin’s marriage was fraudu-

lent.

2. Marital testimonial privilege

The marital testimonial privilege protects an individual

from being forced to testify against his or her spouse. “The

testimonial privilege looks forward with reference to the

particular marriage at hand: the privilege is meant to

protect against the impact of the testimony on the mar-

riage.” Westmoreland, 312 F.3d at 307 n.3. Only the testi-

fying spouse can assert the privilege, and the privilege may

be waived.

1

Our analysis would be different if in fact the letter had no

relation to the marriage fraud charges, and the letter represented

the first time that Defendant suggested that Kirklin change her

testimony. “The initial disclosure of a crime to one’s spouse,

without more, is covered by the marital communica-

tions privilege.” Westmoreland, 312 F.3d at 308. However, “[i]f the

spouse later joins the conspiracy, communications from that point

certainly should not be protected.” Id.

No. 05-3377 9

At Defendant’s trial, Kirklin informed the district court

that, if called to testify, she would assert her Fifth Amend-

ment right to refuse to answer any questions on the ground

that a truthful answer would tend to incriminate her. The

government informed the court that it intended to offer

Kirklin immunity and moved for an immunity order,

pursuant to 18 U.S.C. §§ 6001 to 6003. The district court

granted the motion.

Defendant’s attorney then asked the district court

whether “someone [has] the obligation to advise Miss

Kirklin of her marital privilege.” The district court re-

sponded that Kirklin could not assert the marital testimo-

nial privilege for the same reasons Defendant could not

assert the marital communications privilege: the mar-

riage was fraudulent and Defendant and Kirklin were

joint participants in the fraud. The district court ex-

plained this ruling to Kirklin and told her that it had

“already decided that in this case you do not have a privi-

lege not to testify.” Kirklin responded, “I understand.”

Defendant argues that it was error for the district court

to instruct Kirklin that she could not assert the marital

testimonial privilege. Defendant asserts that “Ms. Kirklin

exclusively held the right not to testify against her hus-

band; she should not have been compelled to testify as a

government witness.”

Defendant’s argument mischaracterizes what actually

happened at his trial. Kirklin was not “compelled to testify”

against Defendant. She asserted her Fifth Amendment

privilege against self incrimination, was offered immunity

to testify, and accepted immunity. Only after she had

already agreed to testify, and only at the prompting of

defense counsel, did the district court inform her that the

marital testimonial privilege was not available. Kirklin

never attempted to assert the marital testimonial privilege

herself. Defendant cannot assert the right for her, because

10 No. 05-3377

the testimonial privilege, unlike the communications

privilege, can be waived by either spouse. Thus, we find

that the district court did not commit reversible error by

telling Kirklin that the privilege was unavailable to her.

B. Selective Prosecution

Prior to trial, Defendant filed a motion to dismiss due

to selective prosecution and, in the alternative, requested

an opportunity to conduct discovery regarding the United

States Attorney’s charging decision. Defendant argued

that it was improper for the government to prosecute

only Defendant and Melliani, who were Arab, and not

their United States citizen co-conspirators, Kirklin or

Cozadd.

The district court denied the motion to dismiss and the

discovery request. The district court emphasized that the

government enjoys broad discretion in deciding who to

prosecute. The district court found that the government

reasonably concluded that Defendant and Melliani were

more culpable than Kirklin and Cozadd, because they

solicited Kirklin and Cozadd to effect marriage fraud.

On appeal, Defendant once again asserts that the gov-

ernment’s decision to prosecute only Defendant and

Melliani was “based upon an unjustifiable standard—the

defendant’s race and nationality.” Defendant maintains that

“the four persons involved in the alleged conspiracy were

similarly situated in terms of criminal culpability,” and the

“only difference between the four persons was that two were

Arabs, and two were U.S. citizens.” Defendant asks this

Court to remand his case to the district court, either to be

dismissed or to allow discovery.

To show that the government engaged in improper

selective prosecution, Defendant “must demonstrate that

the federal prosecutorial policy ‘had a discriminatory ef-

No. 05-3377 11

fect and that it was motivated by a discriminatory purpose.’

”

United States v. Armstrong, 517 U.S. 456, 465 (1996)

(quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).

To make out a prima facie case of selective prosecution,

which a defendant must do in order to receive an eviden-

tiary hearing, Defendant must show that he “(1) . . . [was]

singled out for prosecution while other violators similarly

situated were not prosecuted; and (2) the decision to

prosecute was based on an arbitrary classification such as

race, religion, or the exercise of constitutional rights.”

United States v. Monsoor, 77 F.3d 1031, 1034 (7th Cir.

1996) (quoting United States v. Cyprian, 23 F.3d 1189, 1195

(7th Cir. 1994)) (internal quotation marks omitted).

Under this standard, we find that the district court did

not abuse its discretion in denying Defendant’s motion to

dismiss and discovery request. The district court reasoned:

Clearly, Defendant and Ms. Melliani, regardless of their

ethnicity or religion, who solicited the marriages, paid

for the marriages, and sought to gain immigra-

tion status by entering into the marriages were most

culpable of the four, and it was within the discretion

of the Government to prosecute them for that reason.

“We review a district court’s decision to deny a motion to

dismiss an indictment for an abuse of discretion.” United

States v. Alanis, 265 F.3d 576, 584 (7th Cir. 2001). We find

that the district court did not abuse its discretion by

determining that Defendant and Melliani were not similarly

situated to the two American co-conspirators. Defendant

and Melliani were arguably more culpable because they

sought to gain immigration status through the fraudulent

marriages. Additionally, there is evidence that the govern-

ment would have prosecuted Kirklin and Cozadd, had they

not agreed to accept immunity in exchange for testimony

against Defendant and Melliani. Kirklin and Cozadd’s

decision to cooperate with the government rendered them

12 No. 05-3377

not “similarly situated” to Defendant and Melliani. See

Alanis, 265 F.3d at 585 (“While a criminal defendant is

certainly not required to cooperate with the government, it

is axiomatic that an individual who decides not to cooperate

with the government is not similarly situated to one who

does cooperate.”). The government’s decision to offer the

United States citizen spouses immunity for testifying

against the foreign spouses, who the government deemed to

be more culpable, falls within the government’s broad

prosecutorial discretion. See, e.g., United States v. Blake,

415 F.3d 625, 627 (7th Cir. 2005).

C. Jury Instructions

Defendant argues that the district court should have

accepted his proposed jury instructions on the marriage

fraud charge. Without those instructions, Defendant

contends, the jury was not informed of all the elements

of the marriage fraud offense and he was thereby preju-

diced. Additionally, Defendant argues that the district court

should have provided a definition of “corruptly persuades”

in relation to the witness tampering count.

“We review jury instructions de novo to determine

whether they provide fair and accurate summaries of the

law.” Savino v. C.P. Hall Co.,199 F.3d 925, 934 (7th Cir.

1999) (citing United States v. Tingle, 183 F.3d 719, 729 (7th

Cir. 1999)). However,

recognizing that the formulation of jury instructions

is not an exact science, the district court is given

substantial discretion with respect to the precise

wording of jury instructions, so long as the instruction

completely and correctly states the law. Notably, the

district court is under no obligation to adopt the word-

ing of any of the litigants’ proposed instructions.

Reversal is warranted on this point only if an instruc-

No. 05-3377 13

tion misstates the law and this error misguides the jury

so much that one party is prejudiced.

Savino,199 F.3d at 934 (citing Tingle, 183 F.3d at 729;

Russell v. Nat’l R.R. Passenger Corp., 189 F.3d 590, 594 (7th

Cir. 1999); Wichmann v. Bd. of Trustees of S. Ill. Univ., 180

F.3d 791, 804 (7th Cir. 1999)).

Defendant must satisfy a four-part test to demonstrate

that he was entitled to his proposed jury instructions.

Defendant is required to show that: “(1) the proposed

instruction is a correct statement of the law; (2) the evi-

dence in the case supports the theory of defense; (3) the

theory of defense is not already part of the charge; and

(4) failure to include the proposed instruction would deny

the defendant a fair trial.” United States v. Chavis, 429 F.3d

662, 671 (7th Cir. 2005).

1. Marriage Fraud

The district court instructed the jury that the government

must prove the following to find Defendant guilty of

marriage fraud:

First, that the defendant knowingly entered into a

marriage with Dianna Kirklin;

Second, that the defendant knowingly entered into a

marriage for the purpose of evading any provision of the

immigration laws;

Third, the defendant knew or had reason to know that

his conduct was unlawful.

Prior to trial, Defendant requested that the district

court include the following additional instructions:

1. That at the time of the marriage, Anouar Darif

did not have the intent to establish a life with

Dianna Kirklin.

14 No. 05-3377

2. Marriage fraud may be committed by one party

to the marriage, or a person who arranged the

marriage, yet the other spouse may genuinely

intend to marry. If one spouse intended the mar-

riage to be fraudulent, when the ceremony took

place, but the other spouse intended it to be gen-

uine, then the one committed marriage fraud but

not the other.

3. The marriage is legitimate so long as Anouar Darif

intended to establish a life with his spouse at

the time he married her, even if securing an immi-

gration benefit was one of the factors that led him

to marry her.

4. A marriage between a foreign person and a United

States citizen is not required to be more conven-

tional, or successful, than a marriage between U.S.

citizens.

The district court denied the inclusion of all four instruc-

tions. Defendant argues that this was error because all

of the instructions are necessary to provide the jury with a

full and accurate statement of the marriage fraud offense.

Defendant bases this argument on several cases from other

federal circuit courts, but none from the Seventh Circuit.

See United States v. Orellana-Blanco, 294 F.3d 1143, 1151

(9th Cir. 2002); United States v. Tagalicud, 84 F.3d 1180,

1185 (9th Cir. 1996); Cho v. Gonzalez, 404 F.3d 96, 102-03

(1st Cir. 2005); Bark v. Immigration & Naturalization

Service, 511 F.2d 1200, 1201-02 (9th Cir. 1975).

We find that Defendant’s proposed jury instructions

are not supported by the language of the statute defin-

ing the marriage fraud offense, 8 U.S.C. § 1325(c), nor by

this Circuit’s case law. The statute provides that “[a]ny

individual who knowingly enters into a marriage for the

purpose of evading any provision of the immigration laws

No. 05-3377 15

shall be imprisoned for not more than 5 years, or fined

not more than $250,000, or both.” 8 U.S.C. § 1325(c).

Defendant’s first and third proposed jury instructions are

misstatements of the law. Under this Circuit’s precedent,

the government is not required to show that Defendant

lacked intent to establish a life with Kirklin; it need only

show that Defendant entered into the marriage with Kirklin

for the purpose of evading immigration laws. Additionally,

even if Defendant “intended to establish a life with” Kirklin,

he still could have entered into the marriage for purposes of

evading the immigration laws—especially since Defendant

and Kirklin would have to appear before the INS several

years into their marriage in order for Defendant to receive

a permanent green card.

The second instruction proposed by Defendant is al-

ready encompassed in the directions the district court

approved. The district court instructed the jury that it must

find “that the defendant knowingly entered into a marriage

for the purpose of evading any provision of the immigration

laws.” (Emphasis added.) If the jury agreed with Defen-

dant’s argument that he thought he was entering a valid

marriage even though Kirklin did not, then it would find,

under the existing jury instructions, that defendant had not

“knowingly entered into” the marriage for fraudulent

purposes.

The fourth instruction proposed by Defendant is simply

irrelevant. Neither the government nor the district court

ever suggested that a marriage between a foreign citizen

and a U.S. citizen is fraudulent unless it is conven-

tional and successful. The key inquiry, which is reflected in

the jury instructions that were used at Defendant’s trial, is

whether Defendant entered into the marriage for the

purpose of evading the immigration laws. If the answer is

yes, it does not matter how conventional or successful the

marriage is, Defendant has committed marriage fraud.

16 No. 05-3377

Likewise, if the answer is no, it does not matter how

unconventional or unsuccessful the marriage is, Defendant

is innocent.

2. Witness Tampering

Defendant asserts that he asked the district court to

include a definition of “corruptly persuade” in the jury

instructions, but that the court refused to do so. Defendant

never claims that he offered his own definition of the

phrase.

The witness tampering offense is defined at 18 U.S.C.

§ 1512(b):

(b) Whoever knowingly uses intimidation, threatens, or

corruptly persuades another person, or attempts to do

so, or engages in misleading conduct toward another

person, with intent to—

(1) influence, delay, or prevent the testimony of any

person in an official proceeding[ ]

...

shall be fined under this title or imprisoned not more

than ten years, or both.

The district court instructed the jury that in order to

find Defendant guilty of witness tampering, it must find

that

1. On or about October 12, 2004, Dianna Kirklin was

a prospective witness;

2. That the defendant attempted to corruptly persuade

Kirklin to provide false testimony;

3. That the defendant acted knowingly with the intent

to influence Kirklin’s testimony.

No. 05-3377 17

Defendant argues that under the Supreme Court’s re-

cent decision in Arthur Andersen LLP v. United States,

544 U.S. 696, 125 S. Ct. 2129 (2005), the district court’s

failure to define “corruptly persuade” for the jury consti-

tutes reversible error. In Arthur Andersen, the Court

found that a jury instruction on a witness tampering charge

was insufficient because it failed to adequately convey 1)

that the statute contains an intent element; and 2) that the

statute requires proof of a nexus between the corrupt

persuasion and a particular proceeding. See

Arthur Andersen, 125 S. Ct. at 2136-37.

We find that Defendant has waived his right to chal-

lenge the omission of the definition of “corruptly persuade,”

because he did not raise it before the district court. At trial,

Defendant agreed to the proposed jury instructions for the

witness tampering charge. Indeed, the district court used

instructions that Defendant himself proposed. Cf. United

States v. Gonzalez, 319 F.3d 291, 298 (7th Cir. 2003)

(challenge to jury instruction waived when defendants

accepted challenged instruction). Defendant did ask the

district court whether the jury might be confused by the

term “corruptly persuade” and whether there was a stan-

dard definition of the term. The district court responded

that there was not, and told Defendant to file a proposed

definition if he wanted one to be included. Defendant did

not file a proposed instruction, and cannot now complain

that the district court erred by not including its own

definition.

Finally, we note that the jury instructions used by the

district court were sufficient under Arthur Andersen, 125 S.

Ct. 2129. In that case, the defendant was charged with

witness tampering based on its order to employees to

shred certain documents. The Supreme Court found that

the jury instructions on the charge were insufficient

because they “required no type of dishonesty and required

18 No. 05-3377

no nexus between the persuasion used to destroy documents

and any particular proceeding.” Id. at 2136.

Those problems are absent here. The district court’s jury

instructions adequately convey that the jury must find that

Defendant acted dishonestly. They state that the jury must

find that Defendant “attempted to corruptly persuade

Kirklin to provide false testimony” and “acted knowingly

with intent to influence Kirklin’s testimony.” (Emphasis

added.) It was also sufficiently clear to the jury that the

witness tampering charge was related to “a particular

proceeding.” They jury instructions state that the jury must

find that “on or about October 12, 2004, Dianna Kirklin was

a prospective witness.” On October 12, 2004, Defendant was

in jail awaiting trial on the marriage fraud charges. Kirklin

was a prospective witness at his trial on those charges.

Thus, in this case, failure to include a definition of the term

“corruptly persuade” did not deny Defendant a fair trial.

III. Conclusion

For the foregoing reasons, we AFFIRM the rulings of the

district court.

No. 05-3377 19

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-3-06