United States v. Jon Burge

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1277

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JON B URGE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08-CR-846—Joan Humphrey Lefkow, Judge.

A RGUED M ARCH 29, 2012—D ECIDED A PRIL 1, 2013

Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. Former Chicago Police Com-

mander Jon Burge presided over an interrogation

regime where suspects were suffocated with plastic

bags, electrocuted until they lost consciousness, held

down against radiators, and had loaded guns pointed

at their heads during rounds of Russian roulette. The

use of this kind of torture was designed to inflict

pain and instill fear while leaving minimal marks.

2 No. 11-1277

When Burge was asked about these practices in civil in-

terrogatories served on him years later, he lied and

denied any knowledge of, or participation in, torture

of suspects in police custody. But the jury heard over-

whelming evidence to contradict that assertion and

convicted Burge for obstruction of justice and perjury.

Burge raises several challenges to his convictions on

appeal, which we do not find persuasive because the

evidence shows that he lied when he answered the inter-

rogatories, his false statements impeded an official pro-

ceeding, and they were material to the outcome of the

civil case. Overall, we conclude that no errors were com-

mitted by the court and Burge received a fair trial. Finally,

Burge objects to the district court’s reference to a victim

impact letter at his sentencing, but it is well established

that hearsay is admissible at sentencing hearings, so

we affirm.

I. BACKGROUND

For many years a cloud of suspicion loomed over

the violent crimes section of the Area 2 precinct of the

Chicago Police Department (CPD) located on Chicago’s

south side. Jon Burge joined the CPD in 1970 and rose

to commanding officer of the violent crimes section in

the 1980s, but his career was marked by accusations

from over one hundred individuals who claimed that

he and officers under his command tortured suspects in

order to obtain confessions throughout the 1970s and

1980s. Burge was fired in 1993 after the Office of Profes-

sional Standards investigated the allegations, but he was

No. 11-1277 3

not criminally charged. Years later the Circuit Court of

Cook County appointed special prosecutors to investi-

gate the allegations of torture, but due to statutes of

limitation, prosecutors never brought direct charges of

police brutality against Burge. Eventually, the City of

Chicago began to face a series of civil lawsuits from

victims seeking damages for the abuse they endured.

In one lawsuit filed in 2003, Madison Hobley sought

damages for being physically beaten and suffocated with

a typewriter cover while being interrogated at Area 2 in

1987. Hobley v. Burge, et al., No. 03 C 3678 (N.D. Ill.).

Although Hobley did not allege that Burge had per-

sonally participated in his abuse, he sought to prove that

the CPD had a policy and practice of torturing confes-

sions from suspects. He also claimed that Burge was

aware of this practice and requested discovery from

Burge related to this policy.

During discovery, Burge responded to two sets of in-

terrogatories regarding his involvement in alleged abuse

at Area 2. Question 13 of the first set of interrogatories

asked Burge to state if he had ever used or was aware

of any other officers using “any form of verbal or physical

coercion of suspects” including “deprivation of sleep,”

“physical beatings or hangings; the use of racial slurs or

profanity,” or “the use of physical objects to inflict pain,

suffering or fear, such as firearms, telephone books,

typewriter covers, radiators or machines that deliver an

electric shock.” Burge objected to this question, but re-

sponded, “I have never used any techniques set forth

above as a means of improper coercion of suspects while

4 No. 11-1277

in detention or during interrogation.” Question 14 con-

tained similar language to Question 13, and asked Burge

to state if he was “aware of any Chicago Police

Officer, including but not limited to officers under [his]

command” ever using these techniques. Again, Burge

objected to this question, but responded, “I am not aware

of any.” Burge signed his name at the end of the last

answer, but the document did not contain an oath.

Question 3 in the second set of interrogatories focused

on Hobley’s allegations that he was beaten and suf-

focated with a typewriter cover and asked whether

such practices were “consistent with other examples of

physical abuse and/or torture on the part of Chicago

Police officers at A2 which [Burge] observed or had

knowledge of.” Burge answered, “I have not observed

nor do I have knowledge of any other examples of

physical abuse and/or torture on the part of Chicago

police officers at Area 2.” The answers from this second

set of interrogatories were signed by Burge, notarized,

and given under the following oath: “I, Jon Burge, after

first being duly sworn, state on oath that I have read

the foregoing . . . and that the answers therein are true

and correct to the best of my knowledge and belief.”

This second set of answers was signed by Burge and

given under oath.

On October 18, 2008, the government alleged that

Burge’s responses to the interrogatories were false and

indicted him on two counts of obstruction of an official

proceeding under 18 U.S.C. § 1512(c)(2) and one count

of perjury under 18 U.S.C. § 1621(1). At trial, the govern-

No. 11-1277 5

ment called multiple witnesses to testify about the

methods of torture and abuse used by Burge and others

at Area 2 in order to establish that Burge lied when

he answered the interrogatories in the Hobley case.

While the issues in this appeal do not turn on the

specific details of suffering caused under Burge’s

watch, the witnesses at trial detailed a record of decades

of abuse that is unquestionably horrific. The witnesses

described how they were suffocated with plastic bags,

electrocuted with homemade devices attached to their

genitals, beaten, and had guns forced into their mouths

during questioning. Burge denied all allegations of

abuse, but other witnesses stated that he bragged in

the 1980s about how suspects were beaten in order to

extract confessions. Another witness testified that Burge

told her that he did not care if those tortured were

innocent or guilty, because as he saw it, every suspect

had surely committed some other offense anyway. On

June 28, 2010, the jury convicted Burge on all counts.

He was sentenced to 54 months’ imprisonment. This

appeal followed.

II. ANALYSIS

A. Section 1512(c)(2) Obstructive Conduct Need Not

Occur Before a Court

Before trial, Burge moved to dismiss Counts 1 and 3

in the indictment for failure to state an offense and he

renewed the argument in a subsequent motion for judg-

ment of acquittal. We review questions of law in a

district court’s ruling on a motion to dismiss an indict-

6 No. 11-1277

ment de novo. United States v. Greve, 490 F.3d 566, 570

(7th Cir. 2007).

Counts 1 and 3 of the indictment charged Burge with

violating 18 U.S.C. § 1512(c)(2). Section 1512(c) provides:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a

record, document, or other object, or at-

tempts to do so, with the intent to impair

the object’s integrity or availability for use

in an official proceeding; or

(2) otherwise obstructs, influences, or

impedes any official proceeding, or at-

tempts to do so,

shall be fined under this title or imprisoned

not more than 20 years, or both.

This section is a product of the Sarbanes-Oxley Act of

2002, Pub. L. 107-204, 116 Stat. 745, and represents a

relatively new addition to the obstruction of justice

statutes described in §§ 1501, 1503, 1512, and 1519.

To be liable under § 1512(c)(2), a defendant must

obstruct or impede an “official proceeding.” A separate

section of the statute defines “official proceeding” as “a

proceeding before a judge or court of the United States . . .

or a Federal grand jury.” 18 U.S.C. § 1515(a)(1)(A) (empha-

sis added). The parties do not contest that Hobley’s

civil suit qualifies as an “official proceeding” within the

meaning of the statute. Nevertheless, Burge contends

that his conviction cannot stand because his obstructive

No. 11-1277 7

conduct—false interrogation responses—did not occur

“before” a judge.

Since Burge gave his false responses to written inter-

rogatories and was not physically in court or being de-

posed, he maintains that the indictment does not state

an offense under § 1512(c)(2).1 Burge reaches this con-

clusion by transplanting § 1515(a)(1)(A)’s definition of

“official proceeding” into the text of § 1512(c)(2), and

then reads the two provisions as one. He reasons that

the proper way to interpret the word “before” when

reading the two provisions together is that § 1512(c)(2)

requires obstructive conduct to occur in or during the

official proceeding before a judge or court. In advancing

this interpretation, Burge relies on Dunn v. United States,

where the Supreme Court interpreted a perjury statute,

18 U.S.C. § 1623, as applying only to “statements given

in . . . formal contexts,” meaning, at minimum, in deposi-

tions taken under oath. 442 U.S. 100, 111 (1979) (em-

phasis added).

This is a novel interpretation of the statute, but one

we must reject. Though § 1515(a)(1)(A) defines an official

proceeding as one “before a judge or court,” it does not

require that obstructive conduct occur in the same loca-

tion. How do we know this? First, the phrase “before a

judge or court” in § 1515(a)(1)(A) only describes which

types of proceedings can be considered “official,” not

where the criminal obstruction must occur. Obstruction

1

Burge’s argument does not turn on the fact that the first

set of interrogatories was not given under oath.

8 No. 11-1277

of justice occurs when a defendant acts to impede the

types of proceedings that take place before judges or

grand juries. But the defendant need not interfere while

court is actually in session to be held liable. Burge asks

us to plug the phrase “before a judge or court” from one

section of the statute into another and interpret it as

applying to the location of the obstructive conduct.

This construction is too strained.

Second, Burge’s reading of § 1512(c)(2) is contradicted

by the express language of another provision, § 1512(f),

which provides: “For purposes of this section . . . an official

proceeding need not be pending or about to be instituted

at the time of the offense.” We cannot infer a location

requirement into § 1512(c)(2) when Congress has ex-

plicitly instructed that an official proceeding need not

even be pending for a defendant to violate the provision.

It makes little sense to ignore the plain meaning of the

text for at least one other reason. Section 1512(c)(1) covers

obstructive conduct in the form of physical destruction

of documents and records. Burge’s counsel conceded at

oral argument that it would be absurd to presume

that Congress only intended to cover document destruc-

tion actually committed in a proceeding before a judge.

Very few defendants shred incriminating papers in

plain view of a presiding judge. Obviously, the statute

must apply to destruction of documents performed

in advance of an official proceeding.

Even though Burge’s obstruction was of a different

kind, his conduct still falls within the scope of § 1512(c)(2),

which applies to a defendant who “otherwise obstructs,

No. 11-1277 9

influences, or impedes any official proceeding” (em-

phasis added). The expansive language in this provision

operates as a catch-all to cover “otherwise” obstructive

behavior that might not fall within the definition of docu-

ment destruction. See United States v. Aguilar, 515 U.S.

593, 598 (1995) (interpreting similar language in 18 U.S.C.

§ 1503 as an “Omnibus Clause . . . prohibiting persons

from endeavoring to influence, obstruct, or impede the

due administration of justice” and concluding that the

language is “general in scope”). Sections 1512(c)(1) and

(2) are linked with the word “otherwise,” so we can safely

infer that Congress intended to target the same type of

pretrial misconduct that might “otherwise” obstruct a

proceeding beyond simple document destruction. See

Erlenbaugh v. United States, 409 U.S. 239, 244 (1972) (stating

that generally “individual sections of a single statute

should be construed together”). False statements made

during an official proceeding may be obstructive. But

so too can misconduct that occurs in advance of the

proceeding as long as the defendant “believe[s] that his

acts will be likely to affect a pending or foreseeable pro-

ceeding.” United States v. Matthews, 505 F.3d 698, 708 (7th

Cir. 2007); see also United States v. Reich, 479 F.3d 179, 185

(2d Cir. 2007). In either situation, the defendant remains

liable.

Very few circuit courts of appeal have addressed what

qualifies as an “official proceeding” under § 1512(c)(2),

but none (at least of which we are aware) has adopted

10 No. 11-1277

Burge’s reading of the statute.2 In fact, several of our

2

After briefing was completed, Burge’s counsel submitted a

Fed. R. App. P. 28(j) letter citing United States v. Binette, 828

F. Supp. 2d 402 (D. Mass. 2011) as supplemental authority. In

that case, the Securities and Exchange Commission initiated a

preliminary investigation into the defendant’s suspicious

trading activity. The defendant made several false statements

to the investigators, but argued that he was not guilty of

obstructing an “official proceeding” under §1512(c)(2). The

district court agreed, reasoning that the disputed phone call

between the SEC investigators and the defendant was not a

“’formal convocation’ called by the agency where Defendant

was directed to appear. Instead, the agency’s investigators

chose to give their conversations with Defendant a far

more casual appearance.” 828 F. Supp. 2d at 404. There was

nothing “casual” about the interrogatories Burge received here

in a pending federal lawsuit, and unlike the defendant’s

responses in Binette, Burge’s answers to the second set of

interrogatories were given under oath. Moreover, the court

in Binette did not address Burge’s claim that the obstructive

conduct at issue must occur in front of a judge or court, and

gave no indication that the statute should be read in such a way.

Burge also argues that the government did not establish

that he took an “oath” when he answered the second set of

interrogatories because the notary public testified that she did

not “administer” an oath, but rather notarized Burge’s signature.

But the evidence at trial showed that the notary showed him

the document containing the oath, directed his attention to

the oath, and then asked him to confirm that it was correct. As

the district court pointed out, he signed his name below the

oath in the presence of the notary, and so no more formality

(continued...)

No. 11-1277 11

sister circuits have upheld convictions under § 1512(c)(2)

for defendants whose conduct occurred well in advance

of any official proceeding. See, e.g., United States v.

Townsend, 630 F.3d 1003, 1014 (11th Cir. 2011) (phone calls

warning co-defendant that a search warrant was about

to be executed were sufficient to support § 1512(c)(2)

conviction); United States v. Phillips, 583 F.3d 1261, 1263-64

(10th Cir. 2009) (affirming conviction for disclosing an

undercover officer’s identity to the subject of a grand

jury investigation). In a case strikingly similar to this one,

the Second Circuit held that false answers given by

prison guards on a “Use of Force Report” could constitute

obstruction of a Bureau of Prisons civil investigation

attempting to uncover prisoner abuse. United States v.

Perez, 575 F.3d 164, 169 (2d Cir. 2009).

And Dunn, a case that involved a different statute

with different elements, does not support Burge’s posi-

tion. Section 1623 is titled “false declarations before grand

jury or court” and it encompasses perjury made “in any

proceeding” (emphasis added). Section 1512(c)(2)’s lan-

guage is simply not comparable. Burge’s challenge to

Counts 1 and 3 on these grounds must therefore fail.

2

(...continued)

was needed. See United States v. Yoshida, 727 F.2d 822, 823 (9th

Cir. 1983) (“No particular formalities are required for there to

be a valid oath under [§ 1621]. It is sufficient that, in the pres-

ence of a person authorized to administer an oath, . . . the affiant

by an unequivocal act consciously takes on himself the obliga-

tion of an oath, and the person undertaking the oath under-

stood that what was done is proper for the administration of

the oath . . . .”).

12 No. 11-1277

B. Merits of Civil Suit Irrelevant to Burge’s Criminal

Liability

On June 3, 2010, the government disclosed to Burge

during trial that an Assistant United States Attorney

had held a 2008 interview with Hobley’s cellmate while

the two were both in prison. The cellmate, Darryl Simms,

told prosecutors that Hobley treated Simms as a con-

fidant and admitted to being guilty of the arson and

murder for which he had been imprisoned. According to

the cellmate, Hobley said he had confessed to police due

to guilt about accidentally killing his son in an arson he

had intended would only kill his wife. Simms said that

Hobley never mentioned in these conversations that he

had been tortured or abused while under arrest.

After this disclosure, Burge moved for a mistrial or in

the alternative to introduce Simms’s testimony to the

jury. The district court denied these requests. Burge

argues on appeal that mistrial should have been granted

on the grounds that Hobley’s civil suit “was a fraud.”

We review a district court’s exclusion of evidence and

denial of a motion for a mistrial for abuse of discretion.

United States v. Powell, 652 F.3d 702, 709 (7th Cir. 2011).

Burge cites Napue v. Illinois and related cases for the

proposition that a “conviction obtained through the use

of false evidence, known to be such by representatives

of the State, must fall.” 360 U.S. 264, 269 (1959). But Burge

misapprehends the import of the rule he relies upon.

Burge is correct that prosecutors cannot advance false

evidence to the jury in order to get a conviction. However,

there is no indication that prosecutors relied upon false

evidence in trying Burge since Hobley did not testify

No. 11-1277 13

at trial. The government never took a position in the

indictment or before the jury on whether Hobley had

been tortured or whether he was lying. The jury was

simply advised that the civil suit was brought to deter-

mine, in part, whether a policy or practice of torture

existed in the Chicago Police Department. We cannot

consider the conviction “tainted” when Burge fails to

identify any false evidence actually introduced by the

government.3

Furthermore, the relevant question for the jury was

not whether Hobley’s allegations were well-founded,

but whether Burge lied when he responded to the inter-

rogatories. Burge’s criminal liability for the charges in

the indictment was the same whether the underlying

civil suit was true or false. Therefore, Simms’s testimony

was immaterial and not “of consequence to the deter-

mination of the action.” See Fed. R. Evid. 401. The district

court appropriately excluded evidence regarding the

merits of Hobley’s suit since it had no bearing on

the government’s charges.

3

We also note that Simms’s account does not establish the

falsity of Hobley’s torture allegations because Simms simply

claimed that Hobley admitted to the crime and never men-

tioned torture in their conversation. Even if we accepted

Simms’s testimony at face value, the account would not

directly contradict Hobley’s allegations because he could

have been guilty of arson, yet still have been tortured by

Chicago police officers. Under such circumstances, it is

difficult to characterize the government as “knowingly us[ing]

false evidence” to obtain a conviction. Napue, 360 U.S. at

269 (emphasis added).

14 No. 11-1277

To the extent that Burge suggests that his culpability

is diminished because his responses were given in the

context of a civil interrogatory, we reject the assertion.

See United States v. Holland, 22 F.3d 1040, 1047 (11th

Cir. 1994) (“[W]e categorically reject any suggestion,

implicit or otherwise, that perjury is somehow less

serious when made in a civil proceeding.”). Perjury and

obstruction of justice are offenses against the integrity

of the judicial system—not solely injuries to opposing

parties in a civil suit. See United States v. Dunnigan, 507

U.S. 87, 97 (1993) (discussing role of perjury statutes in

“uphold[ing] the integrity of our trial system”). Suspicion

of Hobley’s allegations did not grant Burge a license to

invent whatever answers he preferred during discovery.

A civil judicial proceeding is designed, in part, to deter-

mine the truth of what occurred between the parties in

a dispute. If witnesses were free to lie whenever they

believed a plaintiff’s allegations were false, it would

totally undermine the crucial mediating role of the

courts. A basic irony also underlies Burge’s claim that

the civil suit was “a fraud” since his own misconduct

has contributed to uncertainty regarding the confessions

of Area 2 suspects like Hobley. See Hinton v. Uchtman, 395

F.3d 810, 821-22 (7th Cir. 2005) (Wood, J., concurring)

(detailing the “mountain of evidence indicat[ing] that

torture was an ordinary occurrence at [ ] Area Two”).

We therefore reject any assertion that the indictment

was grounded in falsity.

No. 11-1277 15

C. Burge’s False Statements Were Material

To be guilty of perjury under 18 U.S.C. § 1621(1), a

defendant’s false statement must be material. See Dun-

nigan, 507 U.S. at 94 (“A witness testifying under oath

or affirmation violates [§ 1621(1)] if she gives false testi-

mony concerning a material matter with the willful

intent to provide false testimony . . . .”). A false state-

ment is material if it has “a natural tendency to influ-

ence, or [is] capable of influencing, the decision of the

decisionmaking body to which it was addressed.” Neder

v. United States, 527 U.S. 1, 16 (1999) (citation omitted);

see also United States v. Howard, 560 F.2d 281, 284 (7th

Cir. 1977) (defining materiality for purposes of § 1621).4

In convicting Burge under § 1621(1), the jury was re-

quired to find that his false interrogatory responses

were material—that is, that they had the “natural ten-

dency” to influence the outcome of the Hobley case.

Burge seeks a judgment of acquittal on this count, arguing

that the evidence was insufficient to support the jury’s

finding for two reasons. First, the government provided

no evidence that his misrepresentations were used or

relied upon in the Hobley suit. Second, Burge’s answers

were immaterial because the government failed to

prove conclusively that Hobley actually suffered

any constitutional injury. Both of these contentions

are meritless.

4

There is no materiality requirement for obstruction under

§ 1512(c); the defendant must have only acted with corrupt

intent to obstruct. See United States v. McKibbins, 656 F.3d

707, 712 (7th Cir. 2011).

16 No. 11-1277

The materiality of a false statement is evaluated at the

time the statement is made. Howard, 560 F.2d at 284.

Materiality does not depend on the ultimate decision

reached by the body to which the false statement is ad-

dressed. See United States v. Wesson, 478 F.2d 1180, 1181

(7th Cir. 1973) (“[I]f a false utterance potentially inter-

feres with the grand jury’s line of inquiry, materiality is

thereby established even though the perjured testi-

mony does not actually impede the investigations.”); see

also United States v. DeLeon, 603 F.3d 397, 404 (7th Cir. 2010).

The question of whether the Chicago Police Department

had a policy or practice of torturing suspects was a core

component of Hobley’s civil suit. In covering up

Burge’s record of torture, the false interrogatory re-

sponses withheld key evidence relevant to the civil

suit. Therefore, materiality does not turn on whether

Burge’s answers were “used” in the Hobley trial. His

false statements could not be introduced precisely

because he had concealed relevant evidence. And while

Burge is correct that Hobley had to prove constitutional

injury to prevail in his suit, that issue is irrelevant to the

materiality of Burge’s lies. Whether the City of Chicago

could be held liable for a policy or practice of torture

is plainly distinct from whether evidence in the form of

an interrogatory answer is material to determining

whether the contested policy or practice exists. So the

question before the jury was whether Burge’s false state-

ment had “the natural tendency to impede, influence

or dissuade” the outcome of Hobley’s civil suit—not

whether the suit’s outcome actually turned on the

Burge’s lies. Howard, 560 F.2d at 284. Hobley alleged a

No. 11-1277 17

policy or practice of torture. Burge’s false responses

regarding these very accusations are plainly material.5

D. No Constructive Amendment of Indictment

At the close of trial, the government requested and

received a jury instruction on materiality that differed

from language in the indictment. The indictment charged:

It was material to the outcome of the civil law-

suit whether in fact JON BURGE knew or partici-

pated in torture and physical abuse of persons

in Chicago Police Department custody.

The instruction to the jury read:

An answer to an interrogatory is material if a

truthful answer might reasonably be calculated

to lead to the discovery of evidence admissible at

5

Burge also objects to the exclusion of his expert witness,

Daniel Locallo, who would have testified that Burge’s state-

ments would not have been material unless and until Hobley

could prove he had suffered a constitutional injury. But experts

do not instruct the jury on the law; the district court must do

so itself. See United States v. Sinclair, 74 F.3d 753, 758 n.1 (7th

Cir. 1996) (“Federal Rules of Evidence 702 and 704 prohibit

experts from offering opinions about legal issues that will

determine the outcome of a case. . . . [Experts] cannot testify

about legal issues on which the judge will instruct the jury.”).

Locallo’s characterization of materiality was incorrect and

the district court acted properly in excluding his testimony

on this point.

18 No. 11-1277

trial of the underlying lawsuit or otherwise affect

its outcome. It is not necessary that the answer

actually have that effect so long as it had the

potential or capability of doing so.

Burge does not suggest that this instruction was an

inaccurate statement of the law. Instead, he maintains

that the district court constructively amended the indict-

ment by improperly expanding the bases upon which the

jury could convict beyond the indictment’s charges. In

other words, he says that the indictment limited its

scope to only those responses relevant to the outcome

in Hobley, but the jury’s instructions were not so restricted.

This issue presents a somewhat closer question that

turns on the distinction between a constructive amend-

ment and a variance. A constructive amendment of an

indictment occurs if jury instructions support a convic-

tion for “a crime other than that charged.” United States

v. Ratliff-White, 493 F.3d 812, 820 (7th Cir. 2007) (citations

and quotations omitted); see also United States v. Trennell,

290 F.3d 881, 888 (7th Cir. 2002) (“In order to rise to

the level of constructive amendment, the change must

establish offenses different from or in addition to those

charged in by the grand jury.”). A variance, on the other

hand, does not “alter the essential substance of the

charged offense.” United States v. Pigee, 197 F.3d 879, 886

(7th Cir. 1999). In other words, “not every minor variance

[between an indictment and jury instructions] constitutes

a constructive amendment.” Id.; see also Trennell, 290

F.3d at 888 (explaining that there is no constructive amend-

ment “when the court’s description of the indictment

No. 11-1277 19

alters the terms of the indictment in an insignificant

manner”), and cases cited therein; United States v.

Kuna, 760 F.2d 813, 817 (7th Cir. 1985) (explaining that

“variances may be subject to the harmless error rule”).

When read comprehensively, the district court’s materi-

ality instruction represents only a variance from the

language of the indictment. In Burge’s view, the district

court’s inclusion of “discovery of evidence admissible

at trial” in the instruction arguably permitted the jury

to find the materiality element satisfied based on a

ground not charged in the indictment. He urges that the

indictment required that his statements be material to

the outcome, but the instruction additionally defined

materiality as an answer leading only to the discovery

of evidence. However, the distinction Burge attempts

to draw may not be a meaningful one because any

evidence admissible at trial would necessarily need to

be relevant in the first place under Federal Rules

Evidence 402. See Fed. R. Evid. 402 (“Evidence which is

not relevant is not admissible.”). But see United States v.

Arambula, 238 F.3d 865, 868 (7th Cir. 2001) (suggesting that

false testimony is “material when it [is] crucial to the

question of guilt or innocence”); see also United States v.

McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (discussing

different standards for determining materiality of state-

ments). And while we need not delve too deeply into

the various ways of determining materiality, we note

that we have previously observed that “a lie influencing

a pretrial issue, will, in an attenuated sense, influence

the ultimate outcome of the case itself.” United States

v. Galbraith, 200 F.3d 1006, 1014 (7th Cir. 2000).

20 No. 11-1277

But more importantly, if a defendant is convicted of

the same offense for which he was charged in the indict-

ment, then any variance between the indictment and

instructions is often benign. Pigee, 197 F.3d at 886; see also

United v. Willoughby, 27 F.3d 263 (7th Cir. 1994). As we

have explained before, “we are primarily concerned

with changes made to the indictment that affect the

elements of the crime.” United States v. Krilich, 159 F.3d

1020, 1027 (7th Cir. 1998). Burge does not contest that he

was convicted of the same charges for which he was

indicted: violations of 18 U.S.C. § 1512(c)(2) and 18 U.S.C.

§ 1621(1). The instruction here did not change the

elements of the crime, nor did it affect the evidence the

jury would have relied upon to hold Burge liable for

obstruction of justice and perjury. Moreover, Burge has

failed to show any prejudice from this variance, as he

clearly had reasonable notice of the charges against him

and an adequate opportunity to prepare his defense. See

Ratliff-White, 493 F.3d at 823; Kuna, 760 F.2d at 819. As a

result, we find that any variance between the language

of the indictment and jury instructions was harmless.

E. No Abuse of Discretion for Exclusion of Hearsay

Testimony

At trial, the government presented a great deal of

evidence related to Andrew Wilson, who was arrested

for the murder of two police officers in 1982. Wilson

alleged that while at Area 2, officers beat him, suffocated

him with a plastic bag, electrocuted him and held his

body against a radiator. Wilson died in prison before

No. 11-1277 21

Burge’s trial, but the government introduced his testi-

mony from three previous proceedings under Federal

Rule of Evidence 804(b)(1).

Burge sought to introduce prior testimony of several

officers whom Wilson had accused of participating in

his torture. Officers John Yucaitis and Patrick O’Hara

died before Burge’s trial but Burge sought to introduce

their prior testimony from Wilson’s civil trial. Other

officers, Thomas McKenna, Lawrence Hyman, and

Fred Hill, had asserted the Fifth Amendment and Burge

sought to compel their testimony. The district court

declined to admit their testimony under the catch-all

hearsay exception in Federal Rule of Evidence 807 or to

compel the testimony of these witnesses.

There was no abuse of discretion in excluding this

testimony. Rule 807 permits evidence to be admitted if

it has sufficient “circumstantial guarantees of trustworthi-

ness.” Fed. R. Evid. 807(a)(1). In other words, hearsay

testimony that does not fall under an exception may still

be excluded under Rule 807 unless there are substantial

indications of its reliability. The district court correctly

concluded the contrary in this case. The officers accused

of participating in Wilson’s abuse would have had a

motive to testify falsely to exculpate themselves. And

Burge was permitted to challenge Wilson’s allegations

of abuse with a range of other witnesses who were able to

testify directly and did not invoke the Fifth Amendment.

Furthermore, the excluded witnesses would have only

testified as to the abuse of Wilson. Their testimony

would have had no effect on the evidence of the other

22 No. 11-1277

victims of abuse, so any error was harmless. None of

the district court’s evidentiary rulings denied Burge the

right to a fair trial.

F. No Error in Referencing Victim Impact Letter at

Sentencing

At sentencing, the district court engaged in a lengthy,

eight-page discussion of the factors supporting the above-

guidelines sentence of 54 months that she imposed.

After concluding that Burge had shown no remorse or

respect for the law, the court briefly discussed a victim

impact letter from an unnamed victim who was impris-

oned at age 17 for a crime he says he did not commit.

The court used this letter to demonstrate how Burge’s

crimes had undermined the integrity of our system

of justice.

Burge objects that he was sentenced on the basis of

unreliable evidence—a letter from an unnamed victim.

This objection fails. At sentencing, Burge’s attorney

only raised an objection that the letter was inadmissible

hearsay. It is well-established that hearsay is admissible

at sentencing hearings. United States v. Johnson, 227 F.3d

807, 813 (7th Cir. 2000). District courts cannot make

sentencing determinations on the basis of guesswork,

but that is not what the trial court did here. The victim

impact letters were included in the presentencing infor-

mation distributed to Burge and he never specifically

challenged the reliability of any of the victim impact

letters. And in any event, the trial court devoted only a

No. 11-1277 23

very small portion of a lengthy colloquy to discussing the

victim impact letter.

III. CONCLUSION

For the foregoing reasons, we A FFIRM Burge’s convic-

tion and the district court’s sentence.

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