United States v. Christ, Matthew

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1634

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MATTHEW CHRIST,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 1093—John W. Darrah, Judge.

____________

ARGUED SEPTEMBER 26, 2007—DECIDED JANUARY 28, 2008

____________

Before MANION, EVANS, and SYKES, Circuit Judges.

MANION, Circuit Judge. From 1999 until 2001, Matthew

Christ served as a consular officer at the American Em-

bassy in Vilnius, Lithuania. A jury convicted Christ of one

count of conspiring to commit visa fraud, finding that he

used that position to fraudulently facilitate the issuance of

visas to certain Lithuanian citizens. Christ appeals, argu-

ing that there was insufficient evidence to support his

conviction, and that the district court abused its discre-

tion in admitting certain evidence and testimony. Christ

asserts that the district court further erred by failing to

give a missing witness instruction, and that it relied on

2 No. 07-1634

improper facts in enhancing his offense level at sen-

tencing, thereby rendering his sentence unreasonable. We

affirm Christ’s conviction and sentence.

I.

On March 23, 2006, Matthew Christ was charged in a

Fourth Superseding Indictment (“Indictment”) with two

counts of conspiracy to commit visa fraud in violation of

18 U.S.C. §§ 371 and 1546 and one count of bribery in

violation of 18 U.S.C. § 201(b)(2)(A). Prior to trial, the

government dismissed one of the visa fraud counts. The

case proceeded to trial on October 23, 2006, and the jury

was presented with evidence of the following. Christ is a

graduate of the United States Military Academy in West

Point, New York. After more than a decade of active

service in the United States Army, he became a Foreign

Service Officer with the Department of State and was

assigned to the American Embassy in Vilnius, Lithuania.

Christ held this position from August 1999 until July 2001,

during which time he was authorized to adjudicate visa

applications and submit favorable referrals. A visa is a

document issued to a non-citizen signifying that the

holder was screened by a consular officer who deter-

mined that there is no reason to deny travel to the United

States. In making this determination, consular officers

consider the applicant’s credibility and criminal back-

ground, as well as indicia that the applicant will return

from the United States after his visit. While an interview

is normally required as part of this review process, rules

in place during the period in question allowed consular

officers to waive the interview for individual applicants

or categories of applicants considered low risks for visa

No. 07-1634 3

violations.1 The interview requirement could also be

waived if an application was accompanied by a docu-

ment known as a Class A referral (“referral”). A referral is

a form submitted by a consular officer stating that the

applicant is well and favorably known to the officer, and

that expeditious processing of the application is in the

national interest of the United States. According to a

State Department memo introduced at trial, referrals are

appropriately submitted on behalf of influential persons

in government, business, science, and academia, or other

persons able to enhance diplomatic relations. After this

review process, the visa application is adjudicated, mean-

ing that the final decision to grant or deny the visa is made.

The government charged that Christ engaged in the visa

fraud conspiracy with four Lithuanians, Aivaras Grigaitis

(“Aivaras”), his brother Robertas Grigaitis (“Robertas”),

Mindaugas Masiliunas (“Masiliunas”), and Valdas Stauga

(“Stauga”). As a hobby, Aivaras restored antique motor-

cycles, which he then sold. After placing a newspaper

advertisement for the sale of a restored motorcycle, Aivaras

was contacted by Christ, who is an admirer and collector

of antique motorcycles. After meeting at Aivaras’s shop,

Christ purchased the advertised motorcycle, and Aivaras

delivered it to his home. During this transaction, Aivaras

learned of Christ’s employment at the Embassy. Aivaras

and his brother Robertas desired to live in the United States

because of the poor economic situation in Lithuania at

the time, and the two speculated that Christ’s employ-

1

Karen Christensen, a division chief with the Bureau of

Consular Affairs at the State Department, testified that follow-

ing the terrorist attacks of September 11, 2001, rule changes

were effected requiring that every visa applicant, without

exception, be interviewed.

4 No. 07-1634

ment at the Embassy might combine with his interest in

motorcycles to make him a helpful resource in obtaining

visas. Subsequently, Aivaras invited Christ back to his

shop to see another motorcycle he had restored. After

Christ expressed interest, Aivaras offered it to him in

exchange for help in obtaining visas. Aivaras testified that

Christ agreed to the offer. Christ told Aivaras that in

order to apply for visas he and Robertas needed pass-

ports, photos, and application fees. When Aivaras asked

if they should bring these items to the Embassy, Christ

responded that he would instead come to Aivaras’s shop

after business hours.

Christ arrived at Aivaras’s shop on the designated

evening with blank applications, which the Grigaitis

brothers then completed in his presence. On Christ’s

advice, Robertas stated on his application that he in-

tended to travel to the United States for tourism, al-

though he testified at trial that he also intended to

find employment here. Because Aivaras’s passport was

missing, he was unable to complete an application in his

name. He instead completed one for Masiliunas, a friend

of his, stating on Christ’s advice that Masiliunas’s purpose

for traveling to the United States was tourism. Upon com-

pleting the application, Aivaras signed it in Masiliunas’s

name. Christ took the applications back to the Embassy,

and adjudicated Robertas’s application in November 1999,

and Masiliunas’s application in December 1999. Ruta

Kundrotiene, a visa assistant at the Lithuanian Embassy

responsible for processing applications, testified that

each man was issued a ten-year visa allowing periodic

travel to the United States.

When Christ delivered these visas to Aivaras, Aivaras

requested additional assistance in obtaining a visa for

No. 07-1634 5

himself, as well as Stauga, his neighbor. Christ agreed and

subsequently returned to Aivaras’s shop with blank

applications. Aivaras completed his application, as well

as Stauga’s, in Christ’s presence. Instead of personally

adjudicating this second pair of visas, Christ submitted

each application with a referral. While the government

did not present the referral forms themselves at trial,

there was evidence of Christ’s conduct in the form of a

handwritten notation on each application stating, “Re-

ferred by Matt Christ.” In March 2000, Aivaras and Stauga

were issued visas of the same sort previously issued

to Robertas and Masiliunas. Kundrotiene testified that

Christ’s referrals allowed Aivaras and Stauga to receive

visas without being interviewed. Aivaras testified that

after the four visas were issued, he delivered the agreed-

upon motorcycle to Christ’s house, and Christ never

paid, nor offered to pay, for it.

In November 2000, Aivaras again contacted Christ and

requested his assistance in obtaining visas for Robertas’s

wife and two children. Aivaras told Christ that he was

restoring additional motorcycles he could offer Christ in

exchange for his help. Aivaras testified that Christ agreed,

and Robertas subsequently contacted him. The two ar-

ranged to meet at a gas station, and Robertas arrived

with completed applications he had obtained for his

family, as well as their passports. Christ submitted these

applications in February 2001 with referrals. The referral

forms, which were introduced at trial, stated that the

applicants were well and favorably known to Christ and

that expeditious processing of the applications was in the

national interest of the United States. Robertas testified,

however, that no one in his family had ever met Christ.

Notwithstanding Christ’s referrals, the visa assistant

6 No. 07-1634

processing the applications determined that Robertas’s

family should be interviewed because Robertas’s visa

had been so recently issued. The family was directed to

appear with, among other documents, Robertas’s pass-

port, which would allow consular officers to determine

whether he had traveled to the United States, and if so,

whether he had returned to Lithuania. When Robertas’s

family failed to arrive for their interview with the re-

quested documents, their applications were denied. These

events surrounding the family applications resulted in

an investigation of visa fraud at the Vilnius Embassy,

leading ultimately to Christ’s indictment and arrest.

In addition to the above, the jury heard testimony

regarding Christ’s financial transactions and motorcycle

interests around the time he received the second motor-

cycle from Aivaras. Roland Slabon, president of a group

known as Vintage BMW Motorcycle Owners, testified

that Christ contacted him in the Fall of 1999 inquiring

about certain types of antique BMW motorcycles, and

expressing interest in purchasing some that he had

come across in local markets. Additionally, Charles

Christ, the defendant’s father, testified that he had a

telephone conversation with his son in February 2000

during which Christ stated his intent to purchase a BMW

motorcycle for $1,000 in the coming weeks. Finally, an

auditor with the United States Attorney’s Office testified

regarding checks cashed by Christ at the Lithuanian

Embassy between August 1, 1999, and September 28, 2001.

While Christ cashed checks for amounts ranging from

$200.00 to $630.00 during that period, the jury’s atten-

tion was directed to two separate checks each for $500.00

cashed three days apart in early February 2000. The de-

fense argued in closing that these checks corroborated

No. 07-1634 7

the testimony of Charles Christ, and that the testimony,

taken as a whole, showed that Christ did not receive the

second motorcycle as a bribe from Aivaras, but rather

purchased it. The defense further argued that if the jury

found that Christ purchased that motorcycle, it followed

that he had no motive to engage in a conspiracy to com-

mit visa fraud, and the evidence was therefore insuf-

ficient to convict him of that charge.

On November 1, 2006, the jury returned a verdict of

guilty on the visa fraud charge, and not guilty on the

bribery charge. Thereafter, Christ moved for a judgment

of acquittal, or alternatively, for a new trial. In arguing

for a judgment of acquittal, Christ argued that insuf-

ficient evidence was presented to establish his guilt be-

yond a reasonable doubt. His motion for a new trial was

also based on the insufficiency of the evidence, as well as

his argument that the district court’s admission of cer-

tain evidence and failure to properly instruct the jury

deprived him of a fair trial. Specifically, Christ argued

that the district court should not have admitted the evi-

dence involving Robertas’s family because it amounted to

evidence of an uncharged conspiracy not intricately

intertwined with, or undertaken in furtherance of, the

charged conspiracy. Next, Christ argued that his trial

was unfair because the referral notations on Aivaras’s

and Stauga’s applications were inadmissible hearsay.

Christ also argued that the court should not have allowed

the government to question Roland Slabon regarding

Christ’s payment to him of witness fees. Finally, Christ

argued that his trial was rendered unfair by the district

court’s failure to give a missing witness instruction after

the government failed to call certain consular officials.

Christ’s motion was denied by the district court on Febru-

8 No. 07-1634

ary 21, 2007. The district court proceeded to sentencing

on March 1, 2007, at which point it determined Christ’s

Guideline range to be twenty-one to twenty-seven months.

This range was arrived at, in part, by including the

family visa applications in Christ’s relevant conduct.

Christ was sentenced to twenty-four months in prison. He

now appeals his conviction based upon the same grounds

as his post-trial motion. Additionally, he argues that his

sentence was unreasonable because the district court had

no basis to find that Christ’s crime involved more than

the four visas procured for the co-conspirators.

II.

We begin with Christ’s evidentiary challenges. First,

Christ argues that the district court erred in admitting the

evidence related to the family visa applications that

were rejected when Robertas’s family failed to show up

for their interview with the requested documents. He

asserts that the evidence was irrelevant, and not under-

taken in furtherance of, or intricately related to, the

charged conspiracy. The district court admitted the evi-

dence primarily under the theory that it was intricately

related to the conspiracy, and therefore admissible to

explain fully the circumstances related to the charged

crime. See United States v. Thompson, 286 F.3d 950, 968 (7th

Cir. 2002) (“Evidence that is so blended or connected that

it incidentally involves, explains the circumstances sur-

rounding, or tends to prove any element of, the charged

crime is excluded from Federal Rule of Evidence 404(b)’s

prohibition against other acts evidence admitted to show

action in conformity therewith and, therefore, may be

admitted at trial.”) (internal quotation omitted). Addition-

ally, the district court noted that its finding was sup-

No. 07-1634 9

ported by the fact that the conduct surrounding the

family applications was charged in the Indictment, and

alleged to have occurred in furtherance of the charged

conspiracy. We review the district court’s decision to ad-

mit this evidence for abuse of discretion. United States v.

Hale, 448 F.3d 971, 985 (7th Cir. 2006).

Christ argues that the district court abused its discretion

in admitting this evidence because the charged conspiracy

only involved Christ’s procurement of visas for the four

co-conspirators. Specifically, Christ relies on paragraph 4

of the Indictment which charged:

It was part of the conspiracy that defendant CHRIST,

together with Aivaras Grigaitis, Robertas G.,

Mindaugas M., and Valdas S., gave and caused to be

given something of value to CHRIST to induce him to

commit and omit acts in violation of his official duties

as a Foreign Service Officer for the Department of

State and to facilitate the commission of other crim-

inal offenses, such as immigration fraud and iden-

tification document fraud, in that they agreed to

provide a vintage BMW motorcycle directly to

CHRIST, to cause the issuance of non-immigrant visas to

the United States to Grigaitis, Robertas G., Mindaugas M.,

and Valdas S.

(Emphasis added.) While Christ argues that this language,

and particularly the emphasized phrase, establishes that

the charged conspiracy consisted only of the conduct

surrounding the issuance of visas to the four co-conspira-

tors, we find that his interpretation relies on an overly

narrow reading of this paragraph resulting from its being

taken out of context. By alleging that part of Christ’s role

in the conspiracy was to procure visas for the four co-

conspirators in exchange for a motorcycle, the govern-

10 No. 07-1634

ment in no way limited the charged conspiracy to that

conduct.

That the charges are broader than Christ argues is

plainly seen when the Indictment is considered in its

entirety. First, paragraph 3 of the Indictment charged that

Christ engaged in a conspiracy that continued “to at least

February 8, 2001.” Aivaras’s and Stauga’s visas were the

second two of the co-conspirator visas issued, and such

issuance occurred in March 2000. The family applica-

tions, however, were submitted with Christ’s referrals

on February 8, 2001, making clear that the government

intended to include that conduct in the charges set forth in

the Indictment. Next, the Indictment charged that Christ

and the four co-conspirators entered into an agreement and

engaged in conduct to “use, obtain, and receive . . . non-

immigrant visas, knowing them to have been procured

by means of materially false claims and statements.”

This language does not limit the agreement and conduct

of Christ and his co-conspirators to the procurement of

the co-conspirators’ visas, but alleges generally that they

were acting to obtain visas by fraudulent means. In fact,

when the Indictment listed the overt acts undertaken in

furtherance of the conspiracy, no less than five paragraphs

were devoted to setting forth the conduct surrounding

the family applications. The district court did not need to

resort to an “intricately related” analysis because, as the

government argued to the district court before trial,

“[n]othing could be more intricately related and inter-

twined than an allegation that is brought as a charge by

the government.” See United States v. Elizondo, 920 F.2d

1308, 1319 (7th Cir. 1990) (noting that “[e]vidence of overt

acts which occurred after a conspiracy was formed and

which were related to the object of the conspiracy is

No. 07-1634 11

admissible regardless of whether [they] are charged in the

indictment.”). Here, Christ’s conduct regarding the

family visas was charged in the Indictment. Based on

these circumstances, we conclude that the district court

did not abuse its discretion in admitting evidence of the

family visa applications.

Christ next argues that the district court abused its

discretion in admitting over his hearsay objection the

applications of Aivaras and Stauga, which contained

handwritten notations indicating that the applicants

were “Referred by Matt Christ.” Visa Assistant Ruta

Kundrotiene testified that these notations were made by

Foreign Service Officer and then Chief of the Consular

Section, Linda Eichblatt. Unlike the applications of

Robertas’s family, which contained similar notations but

were presented at trial with attached referral forms exe-

cuted by Christ, Aivaras’s and Stauga’s applications had

no accompanying documentation verifying Christ’s refer-

rals. This absence, argues Christ, makes the reference

notation inherently unreliable because there was no

evidence establishing whether, or how, Eichblatt re-

ceived that information. The government argues that the

documents were properly admitted as business records

because they were authenticated by Kundrotiene. Specifi-

cally, the government relies on Kundrotiene’s testimony

that she recognized Eichblatt’s handwriting, that in the

normal course of business Eichblatt recorded referrals

on the application contemporaneous with her review of

the same, and that it was the normal course of business

at the Embassy to discard a referral once noted. As with

the family application evidence, we review the district

court’s admission of the applications for abuse of dis-

cretion. Hale, 448 F.3d at 985.

12 No. 07-1634

While the admission of business records as an exception

to the hearsay rule is well established, see Fed. R. Evid.

803(6), “statements made by third parties in an otherwise

admissible business record cannot properly be admitted

for their truth unless they can be shown independently to

fall within a recognized hearsay exception.” Woods v. City

of Chicago, 234 F.3d 979, 986 (7th Cir. 2000). Accordingly,

the referral notations on Aivaras’s and Stauga’s applica-

tions must have their own independent grounds for

admissibility. The parties agree that the district court

admitted the notations pursuant to the business records

exception, which requires the government to “lay a proper

foundation establishing that the documents produced

were records kept in the course of regularly-conducted

activity and that ‘it was the regular practice of that busi-

ness to make [the document] as shown by the testimony of

the custodian or other qualified witness.’ ” United States v.

Lawrence, 934 F.2d 868, 870 (7th Cir. 1991) (quoting Fed. R.

Civ. P. 803(6) (emphasis added)). This exception, there-

fore, “clearly does not require that the witness have

personal knowledge of the entries in the records. The

witness need only have knowledge of the procedures

under which the records were created.” United States v.

Wables, 731 F.2d 440, 449 (7th Cir. 1984).

Kundrotiene testified that as a Visa Assistant, she

received applications, entered the information contained

therein into the Embassy’s data system, and then passed

the applications on for adjudication. Once an officer such

as Eichblatt received the application for processing,

Kundrotiene testified that the presence of any referral was

noted on the application, and the referral was then dis-

carded. Kundrotiene stated that an accompanying refer-

ral, signed by a qualified officer, was the only reason

No. 07-1634 13

such a notation was made, and that it was against policy

for an officer to make this notation without the requisite

referral. Kundrotiene stated she had no specific memory

of the notations being made on Aivaras’s and Stauga’s

applications. However, she stated she was confident

testifying to the process by which such notations were

made because of what she knew Embassy policy to be,

and because she worked in close physical proximity to

Eichblatt, which allowed Kundrotiene to observe her

practices. Finally, Kundrotiene testified that she was able

to identify the handwritten notations as being made by

Eichblatt because she recognized Eichblatt’s handwriting.

In addition to Kundrotiene’s testimony, the government

presented the three applications of Robertas’s family

members. These applications, which were introduced

with the referrals signed by Christ, had notations similar

to those on Aivaras’s and Stauga’s applications, even

though the latter were introduced at trial without signed

referrals. This evidence, taken as a whole, provided the

district court with sufficient grounds upon which to find

that Kundrotiene exhibited knowledge of the practices

and procedures that resulted in the referral notations

being made on Aivaras’s and Stauga’s applications.

Kundrotiene laid the foundation establishing the reli-

ability of the notations, and that reliability was con-

firmed by similar notations present on the applications of

Robertas’s family. Accordingly, we conclude that the

district court did not abuse its discretion in admitting

the applications of Aivaras and Stauga in their entirety.

Having concluded that the district court did not err by

admitting the evidence above, we turn to Christ’s argu-

ment that the government presented insufficient evid-

ence to support his conviction, and that the district court

14 No. 07-1634

should have granted him a judgment of acquittal. We

review the district court’s decision denying a judgment of

acquittal de novo. United States v. Jones, 222 F.3d 349, 351

(7th Cir. 2000) (citation omitted). When considering a

challenge of this sort, we “defer to the credibility determi-

nations made by the jury, and reverse only when no

rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt.” United States v. Dumeisi,

424 F.3d 566, 581 (7th Cir. 2005). In asserting insufficiency

of the evidence, Christ “carries a heavy burden” because

“[w]e view the evidence in the light most favorable to

the prosecution.” United States v. Leahy, 464 F.3d 773, 794

(7th Cir. 2006) (citation omitted). Christ was convicted of

committing visa fraud in violation of 18 U.S.C. §§ 371 and

1546. Accordingly, we consider whether the government

presented sufficient evidence that he conspired to obtain

non-immigrant visas, acting willfully, and with knowl-

edge that the visas were obtained by a false statement,

or otherwise procured by fraud. When proof of a conspir-

acy is being considered, the government need not have

shown evidence of a formal agreement. United States v.

Carraway, 108 F.3d 745, 750 (7th Cir. 1997). Rather, “the

evidence must show both the existence of the conspiracy

and that the defendant knowingly participated in it.”

United States v. Hightower, 96 F.3d 211, 214 (7th Cir. 1996)

(citation omitted).

We conclude that the government presented evidence

sufficient for a rational jury to find beyond a reasonable

doubt that Christ engaged in a conspiracy to commit

visa fraud. First, the Grigaitis brothers testified that

Christ told them to complete the applications by stating

that the purpose of visiting the United States was tourism.

The jury heard testimony, however, that the men intended

No. 07-1634 15

to find work upon their arrival. Christ argues that this

evidence does not show intent on his part to commit

visa fraud because there was no evidence showing that

he knew his advice to be untrue. While that may be the

case, there also was no evidence showing that Christ had

any reason to think that the co-conspirators were, in fact,

traveling to the United States for tourism. Testimony

that Christ provided any reason to the Grigaitis brothers,

especially when the evidence showed that he had a rela-

tively unfamiliar relationship with them, was circum-

stantial evidence that Christ conspired to submit false

statements in an attempt to procure visas.

Next, Aivaras testified that he filled out an application

for himself, for Masiliunas, and for Stauga in Christ’s

presence. The evidence showed that Christ then adjudi-

cated or submitted referrals on those applications. There

was no evidence suggesting that Masiliunas or Stauga

filled out their own applications. The strongest attack the

defense mounted against Aivaras’s testimony on this point

was when defense counsel argued during closing that,

based upon his observation, the applications were not

written by the same person. While counsel invited the

jury to draw the same conclusion, we view all of the

evidence in the light most favorable to the government,

Leahy, 464 F.3d at 794, and conclude that a rational jury

could have accepted Aivaras’s testimony that Christ

submitted the three applications knowing them to have

been completed by the same person. A reasonable infer-

ence drawn from this evidence is that Christ was working

with his co-conspirators to procure visas by fraud. See

Carraway, 108 F.3d at 750 (holding that a “jury properly

may find an agreement to conspire based upon circum-

stantial evidence and reasonable inferences drawn there-

16 No. 07-1634

from concerning the relationship of the parties, their

overt acts, and the totality of their conduct.”).

The jury also heard evidence that Christ submitted

referrals with the applications of Robertas’s family mem-

bers stating that they were well and favorably known to

him, and that expeditious processing of their applica-

tions was in the United States’ national interest. As noted

above, however, Robertas testified that Christ had never

met any of his family members. Accordingly, evidence

that Christ submitted referrals on their behalf amounted

to strong evidence supporting the jury’s finding re-

garding his guilt. Additionally, the testimony and evidence

at trial consistently affirmed that referrals were to be

extended, if at all, to persons of a stature able to enhance

diplomatic relations, such as government officials, busi-

nessmen, and scientists. Christ, however, submitted

referrals on behalf of Robertas’s family, Stauga, and

Aivaras. With the exception of Aivaras, Christ had not

met any of these people, and there was no indication

that any of them fit the description of a suitable referral

recipient. This deviation from the referral policy pro-

vided the jury with additional evidence that Christ was

involved in a conspiracy to procure visas by fraudulent

means.

Although all of the evidence set forth above provided a

basis from which the jury could find that the govern-

ment met its burden in proving Christ’s guilt beyond a

reasonable doubt, Christ argues that his acquittal on the

bribery charge served to undercut this proof to such a

degree that it could not sustain his conviction. The con-

viction for visa fraud combined with the acquittal on

bribery, Christ asserts, amounts to a finding that he

engaged in the conspiracy, and used his hard-earned

No. 07-1634 17

position of influence at an American Embassy, for no

return benefit to himself. While holding a certain prac-

tical appeal by calling into question Christ’s motive,

this argument is of little legal import. There is no require-

ment under either 18 U.S.C. §§ 371 or 1546 that the gov-

ernment prove that Christ received anything of value in

exchange for his participation in the conspiracy. See, e.g.,

United States v. Soy, 545 F.3d 766, 768 (7th Cir. 2006). The

jury was free to weigh any lack of motive when it consid-

ered whether Christ engaged in visa fraud. Even though

they did not believe that Christ received the second

motorcycle as a bribe, the jury members were satisfied

that the substantial evidence presented by the govern-

ment established his guilt for conspiracy to commit visa

fraud, and we will “neither reweigh the evidence nor

substitute our judgment of the facts for that of the

factfinder.” United States v. LaShay, 417 F.3d 715, 718 (7th

Cir. 2005) (citation omitted). Furthermore, contrary to

Christ’s assertion, there was evidence in the record that

could have answered the question of why Christ en-

gaged in the criminal conduct for which he was con-

victed. It is undisputed, for example, that Christ was a

collector of antique motorcycles. Perhaps he viewed the

visa scheme as a means of developing relationships

with people who consistently dealt with such motor-

cycles. Additionally, there was testimony that fraud was

widespread at the Embassy in Vilnius. Perhaps the vol-

ume of fraudulent applications convinced Christ that he

could cultivate these relationships by adjudicating fraudu-

lent applications and submitting fraudulent referrals

with a reduced risk of detection. While the jury members

themselves may have been unsure as to why Christ en-

gaged in this conduct, questions regarding motive likely

became less and less important as the evidence mounted

18 No. 07-1634

that Christ engaged in this conduct. Accordingly, we are

confident that the evidence presented was sufficient to

support the jury’s verdict beyond a reasonable doubt and

conclude that the conviction was supported by sufficient

evidence. See Leahy, 464 F.3d at 796.

In addition to the issues already considered, Christ

argues that he was entitled to a missing witness jury in-

struction because the government failed to call Eichblatt

and another Foreign Service Officer, Sean Wiswesser, as

witnesses at trial. Eichblatt formulated the Embassy’s

referral policies, and both Eichblatt and Wiswesser had

knowledge of those policies. Additionally, Eichblatt

adjudicated Aivaras’s and Stauga’s applications, and

Wiswesser approved the issuance of visas for Robertas’s

family. Christ asserts, as he did at trial, that the testimony

of Eichblatt and Wiswesser would have illuminated for

the jury not only the referral procedure in place at the

Vilnius Embassy, but also the sufficiency of the specific

referrals upon which these officers relied in approving

the applications in question. In denying Christ’s request

for a missing witness instruction, the district court found

that ample testimony regarding the Embassy’s referral

policies had been presented, and that Eichblatt and

Wiswesser were available for Christ to call as witnesses if

he so chose. For a missing witness instruction to be given,

a defendant must show (1) that the absent witness was

peculiarly within the government’s power to produce, and

(2) that the testimony of the witness would elucidate

issues in the case without being cumulative in nature.

United States v. Romo, 914 F.2d 889, 893 (7th Cir. 1990). A

witness is peculiarly within the government’s power

to produce when the witness is physically available only

to the government, or where the witness’s relationship

No. 07-1634 19

with the government makes his testimony, in pragmatic

terms, available only to the government. Id. at 893-894. The

district court has broad discretion in deciding whether

to give a missing witness instruction, United States v.

Grant, 396 F.3d 906, 910 (7th Cir. 2005), and we will dis-

turb that decision only where serious error has occurred.

United States v. Addo, 989 F2d 238, 242 (7th Cir. 1993).

Regarding the unavailability of Eichblatt and Wiswesser,

Christ argued that their employment with the State De-

partment made them pragmatically unavailable to the

defense. Employment by a party has been found to be a

basis for pragmatic unavailability because “there is likeli-

hood of bias on the part of the person not called as a

witness in favor of one party . . . .” Yumich v. Cotter, 452

F.2d 59, 64 (7th Cir. 1971). In Yumich, this court concluded

that the district court erred in not giving a missing wit-

ness instruction where the municipal defendant called

only five of fifteen to twenty police officers who wit-

nessed an altercation between officers and the plaintiff.

While the district court found that the officers were

equally available to all parties, we held that the officers’

employment with the city, as well as their “strong per-

sonal interest in the success of the city’s defense of their

conduct on the occasion in question,” rendered them

unavailable to the plaintiff. Id.; see also United States v.

Mahone, 537 F.2d 922, 926-27 (7th Cir. 1976) (holding that an

officer who was involved in the arrest initiating the

case was pragmatically unavailable to the plaintiff be-

cause of his association with the United States in building

its case, as well as his “interest in seeing his police work

vindicated by a conviction of the defendant”).

Christ conceded during the charge conference that he

never asked the government to produce Eichblatt and

20 No. 07-1634

Wiswesser. Christ’s failure to interview the witnesses, or

even ask the government to produce them, leaves him at

a disadvantage in arguing that their testimony would

have exhibited bias rendering them pragmatically un-

available to him. See United States v. Montoya, 676 F.2d 428,

431 (10th Cir. 1982) (holding that the district court did not

abuse its discretion in deciding that a witness was equally

available to both sides where the defendant had not

followed up on attempts to contact the witness, and had

not asked for the government’s help in locating him). This

disadvantage notwithstanding, Christ attempts to liken

Eichblatt and Wiswesser to the witnesses in Yumin and

Mahone, relying on their employment with the State

Department and arguing that they would suffer profes-

sional and reputational damage if Christ was acquitted.

The case before us, however, is easily distinguishable

from Yumin and Mahone because Eichblatt and Wiswesser

did not have the personal stake in Christ’s conviction that

arises when an officer’s own conduct is the subject of the

suit, or where official conduct in making an arrest is an

issue upon which a conviction hinges. Put another way,

we fail to see how Eichblatt or Wiswesser was vin-

dicated by Christ’s conviction. Likewise, we fail to see

how they would have been implicated in any way by

Christ’s acquittal simply because they had knowledge of,

or even participated in the formation of, the Embassy’s

referral policy or relied on referrals submitted by Christ.

Accordingly, we conclude that the district court did not

err in finding that Eichblatt and Wiswesser were avail-

able to Christ.

While this is sufficient to affirm the district court for

declining to give a missing witness instruction, we fur-

ther conclude that the district court correctly decided

No. 07-1634 21

that any testimony Eichblatt and Wiswesser could have

offered on the referral policy, to the extent it was rele-

vant, would have been redundant. The referral policy

was testified to by Kundrotiene and Karen Christensen,

the latter a division chief with the Bureau of Consular

Affairs at the State Department. Additionally, the gov-

ernment introduced a State Department memo out-

lining referral policies, and particularly the stature of

the individuals to whom referrals should be given. How-

ever, confirmation that the relevant aspects of the referral

policy had been fully presented came from statements

attributed to Christ himself, and testified to by Diplo-

matic Security Service Agent Christopher McCormack.

McCormack was assigned to investigate allegations of

fraud at the Vilnius Embassy, and in the course of that

investigation, he interviewed Christ. During that inter-

view, Christ gave a description of the referral policy

which included the preferred stature of individuals

who receive referrals, how well known the applicant

should be to the referring officer, and the benefits af-

forded to an applicant who receives a referral. Christ’s

description matched up in all material respects with the

other evidence the government presented at trial. Upon

considering the evidence presented at trial as a whole,

we agree with the district court that there was nothing to

be gained by yet more testimony regarding the referral

policies. See Mahone, 537 F.2d at 927 (“In cases . . . where

it is debatable whether the absent witness’ testimony

would have elucidated the issues in the case, there

should be latitude for the judge to decide whether the

requested instruction would be unnecessary and time

consuming for the jury.”). Having determined that the

district court did not err in making its findings on either

factor of the relevant analysis, we conclude that it did not

22 No. 07-1634

abuse its discretion in declining to give the requested

missing witness instruction.

Christ’s remaining challenges on appeal can be resolved

based on our findings above. First, after the govern-

ment’s direct examination of Roland Slabon during

which he testified about Christ’s inquiries regarding

certain motorcycles and their costs, Christ elicited testi-

mony favorable to his defense during cross-examination.

Specifically, Slabon’s testimony called into question

whether Christ knew the value of the motorcycle he

allegedly received as a bribe when conspiring to com-

mit visa fraud. On re-direct, the government questioned

Slabon regarding a subpoena and a check for $975.00

he received from Christ. Christ objected on relevancy

grounds, arguing that it was improper to use this payment

to raise the specter of bias because it had been paid to

Slabon as required by Federal Rule of Criminal Proce-

dure 17.2 The district court overruled Christ’s objection,

and allowed the government to make the inquiry. We

review such evidentiary rulings for abuse of discretion,

and will only disturb the decision of the district court

where it had a substantial influence over the jury. United

States v. Hernandez-Rivas, 348 F.3d 595, 600 (7th Cir. 2003).

When considering the influence any erroneously ad-

mitted testimony had over the jury, we weigh “(1) the

importance of the witness’s testimony in the prosecu-

tion’s case; (2) whether the testimony was cumulative;

2

“A marshal, deputy marshal, or any nonparty who is at least

18 years old may serve a subpoena. The server must deliver a

copy of the subpoena to the witness and must tender to the

witness one day’s witness-attendance fee and the legal mileage

allowance.” Fed. R. Crim. P. 17(d).

No. 07-1634 23

(3) whether other evidence corroborated or contradicted

the witness’s material testimony; and (4) the overall

strength of the prosecution’s case.” Id. (citation omitted).

To the extent that the government’s questioning prej-

udiced Christ at all, it prejudiced him on the question

of whether he accepted the second motorcycle as a bribe.

Christ was acquitted of that charge, however, and we

therefore fail to see how any prejudice resulted from the

questioning. Moreover, the bribery charge has no effect

on the issues before us because, as we concluded above,

the government presented such substantial evidence of

Christ’s guilt regarding the visa fraud charge that it

withstands even acquittal on the bribery charge. Because

of the strength of the government’s case on the visa

fraud charge, the minimal importance of the challenged

testimony to the government’s case as a whole, and the

lack of any prejudice to Christ, we find that any error

the district court committed in allowing said testimony

was harmless.

Next, Christ argues that the district court erred in

denying his motion for a new trial based upon the insuf-

ficiency of the evidence, the court’s evidentiary rulings,

and its failure to give the jury a missing witness instruc-

tion. A district court may vacate a judgment and grant a

new trial if the interest of justice so requires, Fed. R. Crim.

P. 33(a), and we review that decision for an abuse of

discretion. United States v. Hendrix, 482 F.3d 962, 967 (7th

Cir. 2007). As set forth above, there was more than suffi-

cient evidence to support Christ’s conviction for con-

spiracy to commit visa fraud, and the district court did not

commit error in making the challenged evidentiary rul-

ings, nor in instructing the jury. That being that case,

there is no basis from which Christ can argue that the

24 No. 07-1634

interests of justice require that he be afforded a new trial.

Accordingly, we find that the district court did not abuse

its discretion in denying Christ’s motion for a new trial.

Finally, Christ argues that his sentence was unreason-

able because the district court imposed an enhancement

based on its unsupported finding that Christ’s crime

involved more than six visas. United States Sentencing

Guidelines § 2L2.1(a) establishes a base offense level of 11

for the visa fraud crime of which Christ was convicted.

The district court found that Christ’s abuse of a position

of public trust warranted a two-level enhancement pursu-

ant to U.S.S.G. § 3B1.3, and Christ does not challenge

this finding. The parties are therefore in agreement that

Christ had an offense level of at least 13. Their dispute,

however, centers on a second enhancement the district

court applied pursuant to U.S.S.G. § 2L2.1(b)(2)(A),

which allows a three-level increase when a defendant’s

crime involved between six and twenty-four documents.

An offense level of 13, when combined with Christ’s lack of

any prior criminal convictions, carries with it an advisory

guideline range of twelve to eighteen months. An offense

level of 16, however, carries with it an advisory guide-

line range of twenty-one to twenty-seven months. After

finding that Christ’s crime involved six or more visas,

and that he therefore had an offense level of 16, the dis-

trict court sentenced Christ to twenty-four months in

prison. While our review of a district court’s interpreta-

tion of the Guidelines is de novo, we review the factual

findings made in applying the Guidelines for clear error

and will reverse only if we are “left with the definite

and firm conviction that a mistake has been committed.”

United States v. Johnson, 227 F.3d 807, 812-13 (7th Cir. 2000)

(internal quotations and citations omitted).

No. 07-1634 25

The parties do not dispute that the visas of the co-

conspirators are attributable to Christ, but Christ argues

that there was no basis upon which the district court could

attribute more than those four visas to him. However,

we found above that the family application evidence was

not only admissible at trial, but that it amounted to evi-

dence of conduct undertaken in furtherance of the charged

conspiracy. Such evidence certainly qualifies as relevant

conduct under the Guidelines, which directs consideration

of “all acts . . . committed, . . . counseled, commanded,

induced, procured or willfully caused by the de-

fendant . . . . that occurred during the commission of

the offense of conviction . . . .” U.S.S.G. § 1B1.3(a)(1)(A).

While there was no special verdict form allowing us

to determine the jury’s specific finding regarding the

family application evidence, we see no clear error in the

district court’s finding by a preponderance of the evid-

ence that Christ’s crime involved the family’s visa ap-

plications. See United States v. Frith, 461 F.3d 914, 917 (7th

Cir. 2006) (noting that even conduct underlying an acquit-

ted charge may be considered as relevant conduct as long

as it is proved by a preponderance of the evidence). The

parties also dispute the district court’s inclusion of visas

other than those of the co-conspirators and Robertas’s

family, but we need not resolve that dispute because

there is no contention that their inclusion would estab-

lish that Christ’s crime involved more than twenty-four

visas, thereby allowing application of a six-level enhance-

ment. See U.S.S.G. § 2L2.1(b)(2)(B). Because the district

court was presented with sufficient evidence at trial to

support its finding at sentencing that Christ’s crime

involved between six and twenty-four visas, we con-

clude that it correctly applied a three-level enhancement

26 No. 07-1634

pursuant to U.S.S.G. § 2L2.1(b)(2)(A), and that the sen-

tence imposed was reasonable.

III.

We conclude that the prosecution presented sufficient

evidence to support Christ’s conviction beyond a reason-

able doubt. We further conclude that the district court’s

rulings regarding the admissibility of the challenged

evidence were not in error and that there was no abuse

of discretion by the district court in declining to give a

missing witness instruction. Based upon those findings,

it is clear that Christ was not entitled to a new trial, and

the district court did not abuse its discretion in denying

his request for one. Finally, because there was a suf-

ficient basis upon which the district court could properly

apply the challenged sentencing enhancement, we con-

clude that Christ’s sentence was not unreasonable. Accord-

ingly, we AFFIRM both Christ’s conviction and sentence.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-28-08