United States v. Reese

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2562

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

M ICHAEL R EESE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cr-01061—Virginia M. Kendall, Judge.

A RGUED O CTOBER 26, 2011—D ECIDED JANUARY 13, 2012

Before R IPPLE and H AMILTON, Circuit Judges, and

M YERSCOUGH, District Judge.Œ

M YERSCOUGH, District Judge. On September 15, 2009,

a jury found Michael Reese, a supervising building in-

spector for the City of Chicago’s Department of Buildings,

guilty of one count of conspiracy to commit bribery

(18 U.S.C. § 371) and two counts of making false state-

Œ

Of the Central District of Illinois, sitting by designation.

2 No. 10-2562

ments to federal agents (18 U.S.C. § 1001(a)(2)). In

June 2010, the district court sentenced Reese to a total of

60 months’ imprisonment—51 months’ imprisonment

on Count I and 9 months’ imprisonment on each of

Counts 2 and 3, to be served concurrently.

Reese appeals, arguing the district court erred by admit-

ting testimony about the 2005 gift list of Beny Garneata,

a City of Chicago businessman, and admitting the list

itself. Reese also argues the court erred by barring the

admission of recordings between Reese and Catherine

Romasanta, one of the witnesses who testified against

him, which contained self-exculpatory statements.

Finally, Reese argues the court erred by holding him

accountable for more than $117,000 in bribes (the court

actually held him accountable for $112,500), which

resulted in an eight-level increase to Reese’s offense

level under the United States Sentencing Guidelines.

Although the district court erred by admitting the

2005 gift list as a business record, the error was harmless.

Further, the court did not err by admitting testimony

about the gift list and barring Reese from introducing

the recordings between Reese and Romasanta. Finally,

the court did not err by holding Reese accountable for

$112,500 in bribes. Therefore, we affirm.

I. BACKGROUND

In December 2008, the Government charged Reese, a

supervising building inspector in the City of Chicago’s

Department of Buildings, with one count of conspiracy to

No. 10-2562 3

commit bribery and two counts of making false state-

ments to federal agents. The conspiracy count alleged

that, between early 2005 and mid-December 2006, Reese

conspired with David Johnson, a building inspector

with the City of Chicago, Sorin Adrian Oros, a building

contractor, and others known and unknown. According

to the Government, Reese and Johnson accepted

money from individuals, including Oros, and referred

individuals to each other in exchange for providing

certain services, such as issuing certificates of occupancy,

expediting permit approvals, abating code violations,

and obtaining unit change approvals.

A. Summary of the Evidence Presented at the Septem-

ber 2009 Trial

Reese’s coconspirators testified at trial, including John-

son and Romasanta, who cooperated with the Govern-

ment, and Oros, who was found guilty of bribery and

testified under a grant of immunity. The Government

also played for the jury several recordings between

Reese and “Danny,” the confidential informant, between

Johnson and Danny, and between Reese and Johnson.

Johnson testified that over a number of years, he and

Reese referred individuals to each other to provide

certain official services in exchange for a bribe. These

services included building unit changes, code violation

changes, putting permits and plans through the system,

and removing stop work orders. Sometimes Johnson

and Reese shared the bribe money with each other.

4 No. 10-2562

Johnson introduced Greg Jackson, an investor and

contractor, to Reese. In February 2007, Jackson told

Johnson that Reese wanted $10,000 to take care of a

project on South Prairie. (The district court instructed

the jurors that they could only consider that testimony

as context for the February 2007 recording and not for

the truth of the matter asserted.) In a February 2007

recording between Defendant and Johnson, Reese told

Johnson, “Make that motherfucker come up with that

number.” Johnson understood that to mean that Reese

wanted Johnson to put pressure on Jackson to pay the

$10,000. Reese also stated, “[T]hat’s why I came in with

high because I know this motherfucker he gonna be

sitting.” Johnson explained Reese was referring to the

number that he gave Jackson on how much it would cost

to “take care of the problem.”

Johnson also testified that Reese introduced him to

Beny Garneata, an expeditor and electrical contractor. In

exchange for $4,000, Johnson helped Garneata get

certain permits and plans through the system.

Oros testified that he paid Reese a bribe several times

in exchange for Reese changing information in the City’s

computer system (also referred to as “mainframe

changes”) to reflect the number of units Oros had in his

buildings. In 2005, access rights to the computer system

were changed and only certain administrative personnel

had the ability to edit, update, and delete information

in the computer database. When Reese could no longer

make the changes for Oros, Reese introduced Oros to

Johnson, who knew an administrative assistant with

No. 10-2562 5

access to the computer system. Oros thereafter paid

Johnson to have the changes made in the computer

system. Oros also paid Johnson several times for ob-

taining zoning stamps.

In December 2006, Johnson and Oros were arrested

when Johnson met with Oros to pick up $12,000 in ex-

change for getting zoning approvals on architectural

plans. During the January 2007 conversation between

Johnson and Reese, Johnson told Reese he had “two

pieces” that he needed to get rid of, referring to the two

architectural drawings Johnson had received from

Oros. Reese asked Johnson if he wanted Reese to “holler

at him,” which Johnson understood to mean that

Reese would get in touch with Oros about returning

the drawings. Reese asked Johnson, “They done?” to

which Johnson responded, “They done. Darryl got them

stamped off at City Hall.”

Romasanta, a former expeditor who worked for

Garneata, testified that she took bribes from contractors

and developers and passed them on to City inspectors,

including Reese. (An expeditor is a private company

or a person employed by a private company who repre-

sents the building owner or investor and helps the

owner or investor obtain building permits more

quickly.) Romasanta also testified that on one occasion,

she handed Reese an easy permit application. Reese

handed the documents to Johnson and told him “to go do

his thing.” Romasanta gave Reese $1,500, and Johnson

returned with the approved application.

Romasanta testified about Garneata’s practice of distrib-

uting gift cards to City officials at Christmas. Garneata

6 No. 10-2562

told Romasanta that they “needed to take care of the

inspectors.” Between 2003 and 2005, Romasanta saw a

list reflecting gift cards for City inspectors. In 2005,

Romasanta delivered a gift card to Reese. In 2006, Reese

called Romasanta and asked her if Garneata was doing

anything for inspectors that year.

Romasanta also testified about Garneata’s hand-

written 2005 gift list, which the district court admitted

into evidence. One of the names on the 2005 gift list

was “Insp. Reesse[sic]—$200.” Romasanta identified the

individuals named on the list, including Reese.

Dwayne Pierre-Antoine testified that in October 2005,

he went to the building department regarding some

building violations on his property. Pierre-Antoine ex-

plained the situation to Reese and asked him what he

needed to do. Reese told Pierre-Antoine that he needed

to speak to someone else. That individual, later

identified as Johnson, spoke to Pierre-Antoine alone

in Reese’s office. Johnson told Pierre-Antoine that he

had to pay a $4,000 fee to get the violations on his

property removed. When Pierre-Antoine told Johnson

he could not do that, Johnson asked him how much he

had. Pierre-Antoine refused to pay anything. Pierre-

Antoine was ultimately able to resolve the issues within

two to three days for no cost. In November 2005, Pierre-

Antoine filed a complaint with the United States Postal

Inspection Service, which resulted in an investigation

of City of Chicago employees accepting bribes in return

for performing official acts related to their duties.

This evidence was further corroborated by the re-

cordings of conversations between Reese and the con-

No. 10-2562 7

fidential informant, Danny. In October 2006, Danny

called Reese looking to obtain a permit more quickly

than usual. Reese told Danny he knew someone who

could help Danny “get ‘em pushed through.” In Novem-

ber 2006, Reese told Danny that he might be able to talk

to an inspector “and maybe he will let you work you

know for a small fee.” Reese gave Johnson’s cell phone

number to Danny, and Johnson ultimately provided

Danny with a plumbing license letter of intent for $800.

Finally, the Government introduced a month-by-month

summary of the number and duration of calls between

Reese and his alleged coconspirators during 2005, 2006,

and part of 2007.

After deliberating, the jury found Reese guilty on all

three counts. In January 2010, the district court denied

Reese’s post-trial motions.

B. Verdict and Sentencing

In June 2010, the district court sentenced Reese to

51 months’ imprisonment on Count 1 and two 9-month

concurrent terms on Counts 2 and 3, to run consecutive

to Count 1. The district court held Reese accountable

for $112,500 in bribes, which increased Reese’s offense

level by eight. See United States Sentencing Guide-

lines Manual (U.S.S.G.) § 2B1.1(b)(1)(E), (F) (providing

for an 8-level increase where the amount of loss is more

than $70,000 but $120,000 or less).

8 No. 10-2562

II. DISCUSSION

On appeal, Reese argues the district court erred by:

(1) allowing testimony about the gift card list and ad-

mitting the 2005 gift card list; (2) barring evidence of re-

cordings between Reese and Romasanta during which

Reese declined Romasanta’s invitation to engage in

illegal conduct; and (3) holding Reese accountable

for $112,500 in bribes at sentencing, which resulted in

an eight-level increase in Reese’s offense level.

A. District Court Did Not Abuse Its Discretion by Admit-

ting Testimony About the Gift List, and Admission of

the Gift List as a Business Record Was Harmless Error

Reese argues the district court erred in admitting the

2005 gift list identifying Reese as a recipient of an

improper payment and testimony about the list because

(1) it was prejudicial Rule 404(b) evidence; (2) the 2005

gift list did not constitute a business record under

Rule 803(6); and (3) admission of the 2005 gift list

violated Reese’s Sixth Amendment right to confronta-

tion because the list’s author did not testify at trial.

1. Background Pertaining to the 2005 Gift List

Prior to trial, the district court held that the Govern-

ment could present certain other-acts evidence under

Federal Rule of Evidence 404(b). This evidence included

Romasanta’s testimony about Garneata’s practice of

giving gift cards to City officials during the holiday

No. 10-2562 9

season, Romasanta delivering a $200 gift card to Reese

in 2005, and Reese calling Romasanta in 2006 asking if

he would receive a gift card that year. The court found

that the evidence showed Reese’s intent, as well as the

interaction and ongoing relationship between Reese

and Romasanta. Moreover, the court stated, “I do not

think that it is anything but more conspiratorial

behavior regarding this process of working together as

a team to make sure that these individual inspectors

were paid off.”

The district court also, after hearing the testimony of

Stephan Lille and the voir dire of Romasanta, admitted

the 2005 gift list itself as a business record. Specifically,

Lille testified that he had worked for M3 Plumbing, one

of Garneata’s businesses, from October 2006 to Octo-

ber 2007. In the summer of 2007, Lille found the 2005

gift list handwritten on a notepad in the office Lille

shared with Garneata’s wife.

During voir dire, Romasanta testified that, beginning

in 2002, she and Garneata each would prepare lists of

names and discuss them. Romasanta believed she saw

Garneata’s list in 2003. Romasanta recognized the 2005

gift list as being written in Garneata’s handwriting and

recognized the majority of names on the list. Romasanta

did not know what Garneata did in terms of his record-

keeping practices. Romasanta also did not know

whether Garneata used the same list every year or made

a new one. In fact, Romasanta testified she did not know

whether Garneata actually wrote down his list or told

someone else who to make the cards out to.

10 No. 10-2562

The district court admitted the list, finding that

Romasanta identified the handwriting and the practice

of passing gratuities. The court found the relevance of

the evidence was not “overborne by prejudice” in light

of strong testimony regarding Romasanta’s contact with

Reese and Johnson and the passing of bribes. The court

did, however, redact the word “done” written next to

some of the names on the list.

2. Standard of Review Is for an Abuse of Discretion

This court reviews the district court’s decision to

admit other-acts evidence and the admission of a docu-

ment as a business record for an abuse of discretion.

See United States v. Price, 516 F.3d 597, 603 (7th Cir. 2008)

(Rule 404(b)); United States v. LeShore, 543 F.3d 935, 941

(7th Cir. 2008) (business record; also noting that the

district court’s interpretation of the rules of evidence is

reviewed de novo).

The district court’s evidentiary rulings are afforded

special deference and will be reversed “[o]nly where no

reasonable person could take the view adopted by the

trial court.” United States v. Vargas, 552 F.3d 550, 554 (7th

Cir. 2008).

3. District Court Did Not Abuse Its Discretion by Admit-

ting Testimony Pertaining to the Gift List

Federal Rule of Evidence 404(b) provides that evidence

of a “crime, wrong, or other act is not admissible to

No. 10-2562 11

prove a person’s character in order to show that on a

particular occasion the person acted in accordance with

the character.” Fed. R. Evid. 404(b) 1 . Other crimes

evidence is admissible, however, to prove “motive, op-

portunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Id.; see also

United States v. Montani, 204 F.3d 761, 767 (7th Cir. 2000).

Whether other-acts evidence is admissible requires con-

sideration of whether:

(1) the evidence is directed toward establishing

a matter in issue other than the defendant’s pro-

pensity to commit the crime charged; (2) the

evidence shows that the other act is similar enough

and close enough in time to be relevant to the matter

in issue; (3) the evidence is sufficient to support a

jury finding that the defendant committed the

similar act; and (4) the probative value of the

evidence is not substantially outweighed by the

danger of unfair prejudice.

United States v. Baker, 655 F.3d 677, 681-82 (7th Cir. 2011).

Reese argues the evidence did not constitute admis-

sible conduct under Rule 404(b) because the conduct

was fundamentally different from the allegations of

bribery charged in the indictment. “[S]imilarity is

1

Effective December 1, 2011, and after oral argument in this

case, the amendments to the Federal Rules of Evidence went

in effect. The changes to Rule 404 (b), Rule 803(6), and Rule 106

are not integral to our analysis. Therefore, we use the amended

Rules herein.

12 No. 10-2562

relevant only insofar as the acts are sufficiently alike

to support an inference of criminal intent . . . . The prior

acts need not be duplicates of the one for which the defendant

is now being tried.” United States v. Lloyd, 71 F.3d 1256,

1265 (7th Cir. 1995) (alteration in original) (internal quota-

tion marks omitted).

Here, the testimony regarding the gift list was relevant

to show Reese’s intent, as well as the relationship

between Reese and Romasanta. The evidence that Reese

called Romasanta in 2006 was particularly probative of

Reese’s intent and involvement in the conspiracy. That

the gift card payments were made to “take care of the

inspectors” was sufficiently similar to the illegal conduct

charged in the indictment. See Vargas, 552 F.3d at 556

(explaining that other-acts evidence “was directed

toward establishing [the defendant’s] knowledge, and

was sufficiently similar to the charged offense to be

probative on that issue”).

Reese also argues the district court erred by finding

the probative value of the evidence outweighed the

prejudice. See Fed. R. Evid. 403 (relevant evidence may

be excluded “if its probative value is substantially out-

weighed by a danger of . . . unfair prejudice”). Reese

argues the evidence was highly prejudicial because pay-

ment in the form of holiday gifts was materially dif-

ferent from the illegal conduct charged in the indict-

ment and this evidence was the only instance in which

the Government could corroborate the testimony of a

convicted, cooperating witness that an improper pay-

ment of any kind was made to Reese. Reese also notes

No. 10-2562 13

that that prejudice was not mitigated by a limiting in-

struction.

Although the evidence was prejudicial, it was not

unfairly prejudicial. See, e.g., United States v. Andreas, 216

F.3d 645, 665 (7th Cir. 2000) (noting that “probative evi-

dence is always prejudicial, but the question remains

whether it is unfairly so”). “Evidence is unfairly

prejudicial only if it will induce the jury to decide the

case on an improper basis, commonly an emotional one,

rather than on the evidence presented.” United States v.

Wantuch, 525 F.3d 505, 518 (7th Cir. 2008); see, e.g., Andreas,

216 F.3d at 665 (finding no error in admitting evidence

where the evidence “was not so shocking, repulsive or

emotionally charged that its probative value was out-

weighed by its prejudicial effect”).

Here, the testimony regarding the gift list, particularly

Reese calling Romasanta in 2006 and asking if he was

going to receive a gift card that year, was probative of

Reese’s intent and not so prejudicial as to cause the jury

to decide the case on an improper basis. The resulting

prejudice of this evidence did not outweigh the proba-

tive value. Therefore, the district court did not abuse

its discretion by admitting the evidence. See Wantuch,

525 F.3d 505, 518 (7th Cir. 2008) (other crimes evidence

“outlined how the relationship of trust and cooperation”

developed between the coconspirators).

While the district court did not give the jury a limiting

instruction, the record does not reflect that defense

counsel requested one. See, e.g., United States v. Suggs,

14 No. 10-2562

374 F.3d 508, 517 (7th Cir. 2004) (a defendant who does

not request a limiting instruction forfeits any argument

that the court erred by failing to give a limiting instruc-

tion). Generally, this court reviews the failure to give

an unrequested limiting instruction for plain error, but

Reese does not argue plain error on appeal. See, e.g.,

United States v. Liefer, 778 F.2d 1236, 1244 (7th Cir.

1985). Nonetheless, even without the limiting instruc-

tion, the evidence was not unduly or unfairly prejudi-

cial. See, e.g., United States v. Wilson, 31 F.3d 510, 515 (7th

Cir. 1994) (evidence not unduly prejudicial, even in

absence of a limiting instruction, “because of its strong

similarity and close temporal proximity to the charged

crime”).

4. Admission of the 2005 Gift List as a Business Record

Was Harmless Error

Reese next argues that even if testimony about the

gift list was admissible under Rule 404(b), the gift list

itself was inadmissible because (1) the 2005 gift list

was not a business record; (2) no qualified witness

testified to the accuracy and authorship of the 2005 gift

list; (3) the 2005 gift list was more prejudicial than proba-

tive; and (4) the admission of the list violated Reese’s

Sixth Amendment right to confrontation because the

author of the list was not called to testify. We agree that

the district court erred by admitting the 2005 gift list as

a business record but find that error was harmless. See,

e.g., United States v. Thornton, 642 F.3d 599, 606 (7th

Cir. 2011).

No. 10-2562 15

“A party establishes a foundation for admission of

business records when it demonstrates through the testi-

mony of a qualified witness that the records were kept

in the course of a regularly conducted business activity,

and that it was the regular practice of that business to

make such records.” United States v. Given, 164 F.3d 389,

394 (7th Cir. 1999); see also Fed. R. Evid. 803(6) (business

record exception to the hearsay rule). A qualified wit-

ness need not be the author of the document but must

have personal knowledge of the procedure used to

create and maintain the document. See id.; see also United

States v. Muhammad, 928 F.2d 1461, 1469 (7th Cir. 1991).

Although Romasanta testified that she knew that

Garneata had a regular practice of giving holiday gift

cards, she lacked knowledge of the practice of creating

and maintaining the list. Romasanta testified that she

was not sure whether Garneata actually wrote down a

list, whether he made a list every year or used the

same one, or what he did in terms of recordkeeping.

Romasanta’s lack of personal knowledge concerning

the recordkeeping meant that the list failed to satisfy

what is now subsection (D) in Rule 803(6). The evidence

also failed to satisfy subsections (C) (“making the record

was a regular practice of that [regularly conducted]

activity”) and (E) (no indication of lack of trustworth-

iness). There was no adequate showing that it was a

regular practice to make this sort of record, to maintain

it, or to rely upon it. “The idea behind Rule 803(6) is

that when a record is kept with sufficient regularity, the

existence of an entry (or the absence of one) is good

16 No. 10-2562

evidence that the thing in question took place (or did

not take place). Business records are reliable to the

extent they are compiled consistently and conscien-

tiously.” United States v. Ramsey, 785 F.2d 184, 192 (7th

Cir. 1986) (district court erred by admitting notes on

businessman’s calendar as business records, though

error was harmless). The list here was found by accident

in an abandoned notepad, not in regular files that were

maintained, and Romasanta could not testify that it

was the regular practice to make these lists, let alone

maintain them and rely upon them. Therefore, the

district court abused its discretion by admitting the

2005 gift list as a business record. See, e.g., Collins v.

Kibort, 143 F.3d 331, 338 (7th Cir. 1998) (finding the

witness was not qualified to testify about medical bills

where he did not know anything about the hospital’s

billing practices).

Nonetheless, the error in admitting the 2005 gift list as

a business record was harmless error. “Errors in the

admission of evidence will be deemed to be harmless

unless they had a substantial and injurious effect or

influence on the jury’s verdict.” Datamatic Servs., Inc. v.

United States, 909 F.2d 1029, 1033 (7th Cir. 1990) (internal

quotations omitted).

Reese argues the error was not harmless because the

list was the only documentary evidence supporting the

existence of any improper payment to Reese. Reese

further argues that the prejudice from the admission

of the list was not mitigated by a limiting instruction.

No. 10-2562 17

However, Romasanta testified about Garneata’s prac-

tice of giving holiday gift cards, testimony this court

has found was admissible and not unduly prejudicial.

The actual gift list itself was merely cumulative of

that testimony.

Moreover, the evidence presented at trial overwhelm-

ingly demonstrated Reese’s participation in a conspiracy

with Johnson and Oros. The testimony of Johnson—a

cooperating witness—and Oros—who testified unwillingly

and under a grant of immunity—was further cor-

roborated by the telephone conversations between Reese

and Danny and between Reese and Johnson, as well as

the testimony of Pierre-Antoine, who testified about

his experience with Reese and Johnson. In light of the

evidence presented at trial, the admission of the actual

2005 gift list was harmless beyond a reasonable doubt.

See, e.g., Price, 516 F.3d at 605 (finding that the district

court’s error in admitting the document as a business

record was harmless where the jury “was presented

with substantially similar evidence”); United States v.

Franco, 874 F.2d 1136, 1141 n. 1 (7th Cir. 1989) (finding

that even if the court erred in admitting the records, the

error was harmless because of the substantial evidence

of the defendant’s role in the conspiracy).

Because we have concluded that the error was

harmless, we need not determine whether admission of

the 2005 gift list violated Reese’s right to confront the

author of the list. Coy v. Iowa, 487 U.S. 1012, 1021-22, 101

L.Ed.2d 857, 867, 108 S. Ct. 2798, 2803 (1988) (Confronta-

tion Clause violations are subject to harmless-error

review); Thornton, 642 F.3d at 606.

18 No. 10-2562

B. The District Court Did Not Abuse Its Discretion by

Excluding Recorded Conversations Between Reese

and Romasanta

Reese also challenges on appeal the district court’s

exclusion of recorded conversations between Reese and

Romasanta. The recordings were made in May,

June, July, and December 2007, after Romasanta began co-

operating with authorities and after the investigation

became known. During the conversations, Reese de-

clined Romasanta’s invitations to engage in illegal con-

duct. Specifically, Reese either referred Romasanta to

the appropriate supervisor or directed Romasanta

to follow proper procedures.

On appeal, Reese argues that the district court should

have admitted the recordings on the basis that (1) the

recordings were related recordings under Rule 106;

and (2) the refusal to allow Reese to cross-examine

Romasanta regarding the recorded conversations

violated Reese’s Confrontation Clause right and right to

a fair trial.

1. Standard of Review Is for an Abuse of Discretion

The district court’s rulings on evidentiary issues are

reviewed for an abuse of discretion. United States v.

McGee, 408 F.3d 966, 981 (7th Cir. 2005). “A court’s limita-

tion on a defendant’s cross-examination is reviewed for

an abuse of discretion, but whether the limitation

offends the confrontation clause is reviewed de novo.”

United States v. Mokol, 646 F.3d 479, 485 n. 4 (7th Cir. 2011)

No. 10-2562 19

(also noting that “[e]xposing witness bias directly impli-

cates the Sixth Amendment, and is reviewed de novo”).

2. District Court Did Not Err by Excluding the Recordings

Reese’s own statements in the recording were hearsay

when offered by Reese for the truth of the matter as-

serted. See United States v. Davenport, 929 F.2d 1169, 1175

(7th Cir. 1991) (noting that the defendants’ statements, to

the extent they were exculpatory, would not have been

admissible at their trial because the statements were

hearsay). Because we conclude that the district court

did not err by concluding that Reese’s statements were

inadmissible, we do not need to address Reese’s argu-

ment that Romasanta’s statements were not admissible

for their truth, but rather to give context to his statements.

On appeal, Reese argues the 2007 recordings between

Reese and Romasanta nonetheless should have been

admitted as related recordings under Federal Rule of

Evidence 106. Reese did not argue this ground before

the district court, although the Government raised

Rule 106 in its motion to exclude the recordings. How-

ever, even if Reese has forfeited this issue by failing to

raise it before the district court, the district court did

not commit error, let alone plain error, by excluding

the recordings.

Rule 106 provides that “[i]f a party introduces all or

part of a writing or recorded statement, an adverse

party may require the introduction, at that time, of any

other part—or any other writing or recorded statement—

20 No. 10-2562

that in fairness ought to be considered at the same

time.” Fed. R. Evid. 106. The purpose of the rule is “to

prevent a party from misleading the jury by allowing

into the record relevant portions of the excluded

testimony which clarify or explain the part already re-

ceived.” United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir.

1996); see also United States v. LeFevour, 798 F.2d 977, 981

(7th Cir. 1986) (otherwise inadmissible evidence may

be admissible under Rule 106 to correct a misleading

impression or else the misleading evidence must be

excluded). Rule 106 also applies to oral, nonrecorded

statements. Price, 516 F.3d at 604.

To admit evidence under Rule 106, a court must find

that the evidence is relevant to the issues of the case.

United States v. Velasco, 953 F.2d 1467, 1474-75 (7th Cir.

1992). If the evidence is relevant, the court considers

the following factors: whether (1) the proposed evidence

explains the admitted evidence; (2) the proposed evidence

places the admitted evidence in context; (3) admission

of the proposed evidence will avoid misleading the trier

of fact; and (4) admitting the proposed evidence will

insure a fair and impartial understanding of all of the

evidence. Id. at 1475; see also United States v. Sweiss, 814

F.2d 1208, 1211-12 (7th Cir. 1987).

Reese argues the recordings between Reese and

Romasanta are relevant to whether Reese conspired to

commit bribery because the recordings contain Reese’s

responses to Romasanta’s request that he change

permits and orders on her clients’ properties. Reese also

argues the recordings are relevant because they serve

No. 10-2562 21

to rebut the trust relationship the Government at-

tempted to prove between Reese and his coconspirators,

provide context to the recordings and phone records

used by the Government, and explain the recordings

that already had been introduced.

Even if the 2007 recordings between Romasanta

and Reese were relevant to the issues in the case, those

recordings were entirely separate and distinct from

the admitted recorded conversations between Reese and

Danny and between Reese and Johnson. “A statement

admitted on ‘completeness’ grounds must be connected

contextually to the previously introduced evidence, such

that the exclusion of that statement is likely to create

an incomplete, misleading, or distorted picture of the

evidence.” Price, 516 F.3d at 605. The 2007 recordings

between Reese and Romasanta were neither connected

contextually to any previously introduced statement

or recording nor was admission of those recordings

necessary to complete Reese’s earlier statements to

other individuals. Therefore, the district court did

not abuse its discretion by refusing to admit the 2007 re-

cordings between Romasanta and Reese. See, e.g.,

United States v. Lewis, 641 F.3d 773, 785 (7th Cir. 2011)

(finding that the testimony the defendant wanted

admitted was “merely explanatory of his theory of the

case” and not explanatory of or relevant to the admitted

testimony).

22 No. 10-2562

3. Exclusion of the Recordings Did Not Violate the Confron-

tation Clause

Reese next argues the district court’s decision to

exclude the recordings and preclude defense counsel

from cross-examining Romasanta about those re-

cordings violated his confrontation rights and right to a

fair trial. Reese argues the recordings would have

cast doubt on Romasanta’s veracity when she testified

that Reese had a working relationship with Romasanta

and Johnson in accepting bribes.

Reese did not raise this argument when the district

court considered whether to admit the recordings, al-

though he did make this argument in his post-trial motion.

Even if Reese forfeited the issue, Reese cannot show

the district court erred, let alone committed plain error,

by refusing to admit the recordings. See, e.g., United

States v. Wing, 104 F.3d 986, 988 (7th Cir. 1997) (issue

was forfeited where the defendant could have made a

contemporaneous objection but instead raised the issue

for the first time in his post-trial motion); Thornton, 642

F.3d at 605 (forfeited issues are reviewed for plain error).

The Confrontation Clause of the Sixth Amendment

protects the defendant’s right to face those who testify

against him and to conduct cross-examination. See

McGee, 408 F.3d at 974. However, “[t]he right to cross-

examination is not unlimited; trial courts have wide

latitude ‘to impose reasonable limits on such cross-ex-

amination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

No. 10-2562 23

marginally relevant.’ ” Id. at 975, (quoting Delaware v.

Van Arsdall, 475 U.S. 673, 679, 89 L.Ed.2d 674, 683, 106

S. Ct. 1431, 1435 (1986)).

The district court did not err by limiting cross-exam-

ination here. The court imposed reasonable limits on

Reese’s cross-examination of Romasanta. Reese es-

sentially sought to elicit evidence of his failure to engage

in unlawful conduct during his cross-examination of

Romasanta. Evidence that a defendant acted lawfully

on other occasions is generally inadmissible to prove

he acted lawfully on the occasion alleged in the indict-

ment. See, e.g., United States v. Heidecke, 900 F.2d 1155, 1162

(7th Cir. 1990); United States v. Burke, 781 F.2d 1234, 1243

(7th Cir. 1985). The district court’s requirement that

Reese cross-examine Romasanta within the confines of

the rules of evidence was, therefore, not improper. See

Lewis, 641 F.3d at 785 (finding no violation of the Sixth

Amendment where the defendant was given the opportu-

nity to confront and cross-examine the agent but was

“required to do so within the rules of evidence”). More-

over, the district court did not limit defense counsel’s

cross-examination regarding Romasanta’s motives or

bias, both of which are core Confrontation Clause con-

cerns. Mokol, 646 F.3d at 485 (noting that a district

court may restrict cross-examination on issues such as

bias “so long as the defense still has an adequate oppor-

tunity to explore the witness’s motives and biases”).

Therefore, the district court did not err in preventing

defense counsel from cross-examining Romasanta

about the 2007 recordings.

24 No. 10-2562

C. District Court Did Not Commit Clear Error by

Holding Reese Responsible for $112,500 in Bribes

Reese last argues the district court committed clear

error by holding him responsible for more than $117,000

in bribes. However, although the presentence investiga-

tion report calculated the loss amount as $117,500, the

district court reduced the loss amount to $112,500

after considering the reliability of the supporting evi-

dence. Specifically, the court found that of the $10,000 the

Government believed should be attributed to Reese

for computer mainframe changes Reese made for Oros

($1,000 for each change), the court was “only going to

attribute $5,000 to the mainframe changes, based upon

the five properties that have been identified [by Oros]

as changed.” Sent. Tr. at 58.

In any event, Reese argues the district court erred by

(1) including bribes that were unknown and unforeseeable

to Reese, including the $12,000 bribe Johnson received

from Oros, the $4,000 bribe Garneata paid to Johnson,

and the $1,500 bribe Romasanta paid to Reese from devel-

oper Daniel Fema; (2) including the unsuccessful

attempts to solicit bribes in the loss calculation; and

(3) relying, in part, on the $99,497 in cash deposits by

Reese between January 2002 and December 2008 and

assuming the amount was the proceeds of illicit bribes.

1. Standard of Review Is for Clear Error

We review the district court’s calculation for clear

error. United States v. Alaka, 614 F.3d 368, 371 (7th Cir.

2010). A loss calculation is clearly erroneous if “we are

No. 10-2562 25

left with the definite and firm conviction that a mistake

has been committed.” United States v. Carani, 492 F.3d

867, 875 (7th Cir. 2007) (internal quotation marks

omitted). “Guideline interpretations are questions of

law, however, which we review de novo.” United States

v. Gee, 226 F.3d 885, 899 (7th Cir. 2000).

2. District Court Did Not Err by Holding Reese Liable

for Bribes Received by Reese’s Coconspirators

The district court held Reese responsible not only for

the bribes he personally received but also for the bribes

paid to Johnson by Oros, Garneata, and Danny. A con-

spirator is liable for “all reasonably foreseeable acts

and omissions of others in furtherance of the jointly

undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B); see

also United States v. Bustamante, 493 F.3d 879, 887-88

(7th Cir. 2007). A defendant does not have to “personally

engage[ ] in or benefit from every transaction that

resulted in” the loss. Alaka, 614 F.3d at 371.

The district court’s finding that these payments were

reasonably foreseeable and in furtherance of the con-

spiracy was not clearly erroneous. The evidence

presented at trial showed an ongoing relationship

between Reese and Johnson by which the parties would

each provide services to individuals outside normal

channels. Reese and Johnson mutually benefitted

because of each other’s ability to manipulate the system

and referred individuals to each other for that purpose.

The payments made by Oros to Johnson were rea-

sonably foreseeable to Reese and were in furtherance of

26 No. 10-2562

the conspiracy. Reese referred Oros to Johnson when

Reese could no longer provide the system changes for

Oros. The $12,000 payment that Reese specifically chal-

lenges on appeal is further supported by the conversa-

tion between Reese and Johnson in January 2007 when

Reese offered to contact Oros about picking up some

plans Johnson had stamped for Oros.

The other payments Reese specifically challenges on

appeal also are supported by the evidence. The $4,000

payment by Garneata to Johnson was also foreseeable

because, according to Johnson’s testimony, Reese referred

Garneata to Johnson to provide the necessary services.

Additionally, Reese’s relationship with Garneata was

corroborated by the testimony of Romasanta.

Reese also specifically challenges the $1,500 payment

Romasanta gave to Reese on behalf of Daniel Fema,

claiming the payment was uncorroborated. (Reese claims

on appeal this payment was $3,000, but the record

reflects the payment was $1,500). Romasanta’s testi-

mony was corroborated by the phone contacts, showing

a large number of phone contacts between Reese and

Romasanta, and the testimony of the other individu-

als—Johnson, Oros, and Pierre-Antoine—supporting

her testimony about how the conspiracy worked.

3. District Court Did Not Err by Holding Reese Responsible

for Solicitations of Bribes

Reese also challenges the district court’s inclusion of

the solicitation of a bribe from Pierre-Antoine ($4,000)

and from Jackson ($10,000) in the calculation of the loss

No. 10-2562 27

amount. (Reese challenges the $10,000 solicitation as a

“payment,” but it was clearly a solicitation). At sen-

tencing, however, the solicitation of a bribe is treated the

same as a completed bribe. See U.S.S.G. § 2C1.1, cmt.

background (“[S]olicitations and attempts are treated as

equivalent to the underlying offense); United States v.

Muhammad, 120 F.3d 688, 701 (7th Cir. 1997) (using the

ascertainable benefit of an unsuccessful bribe to enhance

a sentence); United States v. Quinn, 359 F.3d 666, 680

(4th Cir. 2004) (“For purposes of sentencing, there is no

distinction between a solicitation of a bribe and a com-

pleted bribe”).

The evidence presented at trial indicated that Reese

solicited the $10,000 bribe from Jackson. Moreover, John-

son’s solicitation of a bribe from Pierre-Antoine was

foreseeable where Reese brought Johnson into Reese’s

office to talk to Pierre-Antoine. Therefore, the district

court properly included these solicitations in the calcula-

tion of the loss amount.

4. District Court Did Not Err by Relying on Cash

Deposits as Circumstantial Evidence

Finally, Reese claims that the district court improp-

erly relied upon the $99,497 in cash deposits between

January 2002 and December 2008. Reese argues that he

explained these deposits in his sentencing memoran-

dum, noting that he operated a beauty salon and re-

ceived rent in cash for properties he leased to others.

The district court did not include in the loss calcula-

tion the $99,497 in cash deposits presented as evidence

28 No. 10-2562

by the Government. The court merely pointed to

those cash deposits as circumstantial evidence in

support of the conspiracy between the parties. The

court did not err by doing so.

In sum, the district court did not err by holding

Reese responsible for a loss amount of $112,500, which

raised Reese’s offense level by eight levels.

A FFIRMED.

1-13-12