Petition for Writ of Certiorari — Todd Sheffler, Petitioner v. United States
Supreme Court briefMay 6, 2025
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No. __________________
In the
Supreme Court of the United States
____________________
Todd Sheffler,
Petitioner,
v.
United States of America,
Respondent.
____________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
____________________
APPENDIX
____________________
Jeremiah R. Newhall
Counsel of Record
1630 Empire Blvd., Suite 3
Webster, NY 14580
Jeremiah@newhallfirm.com
585-865-5441
Counsel for Petitioner Todd Sheffler
INDEX TO APPENDICES
APPENDIX A – United States Court of Appeals for the Seventh
Circuit, Final Opinion (Jan. 8, 2025) ……...……………………………..
App. 1
APPENDIX B – United States District Court of Appeals for the
Central District of Illinois Circuit, Order Denying Motion for Directed
Verdict (Feb. 6, 2025) ………………………..………….
App. 30
APPENDIX C – United States Court of Appeals for the Seventh
Circuit, Order Denying Petition for Rehearing and Rehearing En Banc
(Feb. 6, 2025) ………………………..………….
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1557
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TODD SHEFFLER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:19-CR-30067 — Sue E. Myerscough, Judge.
____________________
ARGUED SEPTEMBER 4, 2024 — DECIDED JANUARY 8, 2025
____________________
Before ROVNER, BRENNAN, and LEE, Circuit Judges.
BRENNAN, Circuit Judge. Correctional officers at an Illinois
state prison brutally beat inmate Larry Earvin, who died from
his injuries. For their part in his killing and its cover-up, Todd
Sheffler and two others were charged with various federal
crimes. Following a mistrial, Sheffler was retried and a jury
found him guilty.
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On appeal, Sheffler argues there was not a reasonable likelihood that an incident report he wrote and an interview he
gave to the state police would reach federal officials. So, he
submits, he could not have violated two federal statutes underlying some of his convictions: 18 U.S.C. § 1512, prohibiting
witness tampering, and 18 U.S.C. § 1519, forbidding falsifying
records in a federal investigation.
Sheffler also asserts the district court incorrectly ruled that
he had breached a proffer agreement, as well as erroneously
allowed a biased juror to sit on his trial. He further maintains
that in the rebuttal closing argument, the prosecutor impermissibly attacked his lawyer, misconstrued evidence, and inappropriately commented on his right to silence. For all these
reasons, Sheffler challenges the district court’s denial of his
motion for a new trial.
We affirm because sufficient evidence supported Sheffler’s
convictions, and neither the district court nor the prosecutor
committed any reversible errors.
I. Background
Sheffler appeals his criminal convictions after a jury trial,
so we review the evidence in the light most favorable to the
prosecution. United States v. Resnick, 823 F.3d 888, 893 (7th Cir.
2016). We describe the beatings Earvin suffered that led to his
death, Sheffler’s actions during the subsequent investigation,
the charges against him, a proffer agreement into which he
entered before his first jury trial, and the events and rulings at
his second jury trial.
The beatings. The events in this case took place at the Western Illinois Correctional Center in Mt. Sterling, Illinois. On
May 17, 2018, Earvin refused to lock up at a correctional
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officer’s request. In response, officers attempted to handcuff
Earvin. He resisted and a scuffle ensued in which an officer
received a minor injury. This occurred in the prison’s R1
building in the D Wing.
An alert was called out that staff was in distress, and more
than 20 officers arrived on the scene. Earvin was escorted out
of D Wing with officers Alex Banta and Willie Hedden holding his arms. They walked into the R1 vestibule, a “blind spot”
not covered by security cameras. There, Banta began to kick
and punch Earvin. Hedden bent over and struck Earvin three
times with a closed fist, while a third officer kicked Earvin
around the thigh.
Another inmate saw this beating as he spoke to his girlfriend on the phone. He narrated: “They beatin’ him up; they
stompin’ this man.” Officers then picked Earvin up and led
him out of the R1 vestibule and toward the segregation unit.
At this point the injured Earvin needed assistance to walk.
Sheffler stepped in to relieve another officer and take over
the escort. At that point five officers were assisting, and a sixth
officer was following them. They approached the entryway to
segregation, which like the R1 vestibule had no security cameras. It was known that “beatdowns” happened there.
In this second blind spot the officers again assaulted
Earvin. The parties dispute Sheffler’s precise involvement,
but multiple officers testified to his participation. Hedden
opened the exterior door to segregation and the interior door
remained closed. Then Hedden saw Sheffler shove Earvin
through the exterior door into the interior door. Earvin landed
headfirst at the base of the interior door. Hedden then saw
Banta and Sheffler “stomping and kicking” Earvin, as well as
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Banta repeatedly “dropping himself with both knees” onto
Earvin. Another officer’s recollection differed somewhat, with
Banta throwing Earvin into the door, punching him, and
jumping on his rib cage. In that officer’s version, Sheffler
played a more passive role, not visibly throwing or kicking
Earvin. A third officer saw kicks and punches aimed at Earvin
but could not tell who struck which blows. In contrast, a
fourth officer observed Banta and Sheffler “stomping” Earvin
with their feet as he lay handcuffed on the floor.
After these assaults, Earvin could no longer walk, was covered in blood, and appeared unconscious. He was carried
from the segregation entryway to a holding cell. Staff then
moved Earvin to the prison’s health care unit, and soon after
transferred him to the hospital. Forty days after the assault
Earvin died from his injuries.
False statements. Following the assault, Sheffler immediately prepared an incident report that was false. It recounted
that “Inmate Earvin dropped to his knees and tried to pull
away while being escorted.” Sheffler did not mention any incident in the segregation unit, let alone a beating. The next
day, the state police interviewed numerous correctional officers, including Sheffler. None of them mentioned an assault in
segregation. Sheffler denied seeing any “physical altercation”
between Earvin and staff: “[W]e kept pulling him up off the
ground. That was about it.” Sheffler also denied hearing any
“rumors” about officers getting “a little aggressive” with
Earvin. Sheffler named only one other officer from Earvin’s
escort, Banta, whom he described as “decent” and a “good officer.”
Federal criminal charges. For their roles in the beatings and
the investigation, a grand jury indicted Sheffler, Hedden, and
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Banta with numerous federal crimes. Sheffler was named in
five counts:
1. Conspiracy to Deprive Civil Rights in violation
of 18 U.S.C. § 241 and 18 U.S.C. § 2;
2. Deprivation of Civil Rights in violation of 18
U.S.C. § 242;
3. Conspiracy to Engage in Misleading Conduct in
violation of 18 U.S.C. § 1512(k), 18 U.S.C.
§ 1512(b) and 18 U.S.C. § 2;
4. Obstruction–Falsification of Document in violation of 18 U.S.C. § 1519; and
5. Obstruction–Misleading Conduct in violation
of 18 U.S.C. § 1512(b)(3). 1
Proffer agreement. Before his first trial, Sheffler requested
and signed a proffer agreement with the government. He
agreed to “be completely truthful about the facts” and not to
“conceal or minimize his own actions or involvement in any
offense.” Violation of the agreement carried harsh consequences. If Sheffler knowingly made any false statements or
omissions, the government would be entitled to use those
statements to start and support a criminal prosecution. After
signing the agreement, Sheffler answered questions in several
FBI interviews.
The first jury trial for Sheffler and Banta occurred in March
and April 2022. At that trial the government did not elicit Sheffler’s statements during the interviews. Banta was found
guilty of several crimes, including Counts 1–3 listed above,
but the jury hung on the charges against Sheffler. The
1 Hedden pleaded guilty to Counts 1–3 of the indictment in March
2021, before the first jury trial of Sheffler and Banta.
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government subsequently moved to revoke the proffer agreement, seeking to admit Sheffler’s interview statements at the
second trial. The district court granted this motion, pointing
to three ways Sheffler had obfuscated during the FBI interviews.
First, Sheffler said that “through his peripheral vision,” he
saw Banta jumping and landing on Earvin. This conflicted
with a later statement that Sheffler did not see Banta land
blows on Earvin, but it was “possible” Banta did so. It also
conflicted with Sheffler’s claim that the incident could be an
“honest mistake.” The court saw these three statements as
mutually exclusive, demonstrating that Sheffler did not tell
the truth. Second, Sheffler denied knowledge of any injuries
to Earvin before other staff took him to the health care unit.
Given the extent of Earvin’s injuries, the court concluded that
it was impossible for Sheffler to be completely blind to them.
Third, Sheffler denied contacting Banta after the beatings. But
phone records show he called Banta that day and twice more
in the coming days, with two of the three calls being answered.
As a consequence of these false denials, the district court
ruled that Sheffler had violated the proffer agreement and
that his statements during the FBI interviews could be admitted into evidence at the second jury trial.
Juror bias allegations. During Sheffler’s second trial in August 2022, his wife claimed she overheard a conversation
among prospective jurors and one of them say: “Two of them
have already been convicted.” Sheffler’s wife identified one of
the prospective jurors as Juror 31. The magistrate judge who
conducted voir dire had previously questioned Juror 31, who
denied having any discussions about the case.
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Later during the second trial, the government learned that
a juror from the first trial was watching the second trial from
an overflow room. After the first jury hung on the charges
against Sheffler, that former juror had called the outcome a
“travesty” and said that Sheffler should have been convicted.
Of particular concern, the government learned that the former
juror may have spoken to Juror 31 after the first trial. Such a
conversation could threaten the second jury’s impartiality.
The government followed up with the former juror and
learned that after the first trial was over, she had shared texts
and phone calls about the first trial with Juror 31’s wife, but
that she had not spoken with Juror 31 himself. The district
judge then heard statements from the parties and questioned
Juror 31 apart from the other jurors:
THE COURT: … Did you have any prior awareness about anything about this case?
JUROR NUMBER 31: No.
THE COURT: Have you ever had any discussions about this case with anyone?
JUROR NUMBER 31: No.
THE COURT: Including your family, your
wife?
JUROR NUMBER 31: Correct.
THE COURT: … Did you have any conversations with any of the other jurors about this
case, either before being sworn in or after?
JUROR NUMBER 31: No. I have not. 2
2 The magistrate judge questioned Juror 31 on August 2, 2022. The
government raised with the district judge the former juror’s contact with
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After this exchange, Sheffler’s counsel expressed concern that
the former juror’s statements may have influenced Juror 31
and asked to reserve the juror bias issue for additional research. The district judge rejected this request: “I think the issue has already been blown, quite frankly. You didn't assert it
for cause at the time. I certainly, hearing this colloquy, got
nothing that would permit an excuse for cause.” Juror 31 remained on the jury throughout the second jury trial.
Prosecution’s rebuttal argument. The second jury trial lasted
15 days. Toward the end, the prosecution began its rebuttal
closing argument by recounting defense counsel’s opening
statement:
[A]t the beginning of this trial, right after you
took an oath, [defense counsel] stood before you
and asked you to imagine … having your
grandmother accused of robbery, and she
equated that to the presumption of innocence,
which drew an objection that the Court sustained.
Defense counsel had asked the jurors to think of Sheffler as
their “best friend” or “grandma,” drawing another sustained
objection. Then defense counsel said: “What would it take to
convince you of someone you love of their guilt?” and again
drew a sustained objection.
In the rebuttal the prosecutor recounted each of these sustained objections. Defense counsel objected, asking “Am I on
trial, or is Mr. Sheffler on trial?” The objection was overruled,
Juror 31’s wife on August 4, 2022. The district judge questioned Juror 31
on August 5, 2022.
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and the prosecutor continued: “There is nothing more unsupported or discrediting of an attorney’s statements than when
the Court instructs a jury to disregard them. But that is how
the defense of Todd Sheffler began.”
Later in the rebuttal, the prosecutor again looked back to
the defense opening statement, in which defense counsel had
claimed guards beat Earvin while leading him out of D Wing.
According to the prosecution, this turned out to be false, as
“[t]here was no beating or assaulting of Mr. Earvin on D
Wing.”
Toward the end of the rebuttal, the prosecution spoke to
Sheffler’s FBI interviews. Defense counsel had previously argued that Sheffler could not intervene to stop the beating, as
his “back was to everything that was happening” and Sheffler
“consistently said that.” The prosecutor argued the defense’s
interpretation of events contradicted Sheffler’s past statements:
This business … about he didn’t have an opportunity to intervene is just not supported by what
he said when he was interviewed by the State
Police and by the FBI. Over and over again. He
had multiple opportunities. He had the … obligation to be complete and truthful. He had
months prior to the Indictment to come forward, as he was obligated to do, to provide complete and truthful information.
In response, defense counsel objected to the government undermining the defendant’s right to silence. The court sustained the objection and asked the prosecutor to “wrap it up.”
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Convictions. At the end of the second trial the jury found
Sheffler guilty of the five counts with which he was charged.
He moved for a judgment of acquittal and for a new trial. The
district court denied both motions, and Sheffler appeals.
II. Discussion
Sheffler offers several arguments on appeal. First, he contends the government introduced no evidence from which a
jury could find a reasonable likelihood that his incident report
or interview with the state police would reach federal officials. Insufficient evidence therefore existed, he says, for his
convictions under the federal statutes he was charged with
violating in Counts 3–5 of the indictment.
His other arguments concern his second trial. He submits
the district court should not have permitted the government
to revoke his proffer agreement, allowing his interview statements to be used. Further, Juror 31 should have been
dismissed, he says, because of suspicions that Juror 31 had
discussed the case with others, as well as due to contacts a
juror from the first trial had with Juror 31’s wife. Sheffler also
alleges the prosecutor engaged in misconduct during the rebuttal closing argument by disparaging his attorney, misrepresenting evidence, and commenting on his right to remain
silent.
Sheffler believes these errors—either individually or cumulatively—denied him a fair trial and should result in his
acquittal.
A. Sufficiency of the Evidence
Sheffler first challenges the district court’s rejection of his
motion for a judgment of acquittal, which we review de novo.
United States v. Griffin, 76 F.4th 724, 741 (7th Cir. 2023). This
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review is highly deferential. We will overturn the jury verdict
only if “the record contains no evidence, regardless of how it
is weighted, from which the jury could find guilt beyond a
reasonable doubt.” United States v. Rivera, 901 F.3d 896, 900–
01 (7th Cir. 2018) (quoting United States v. Peterson, 823 F.3d
1113, 1120 (7th Cir. 2016)).
In Counts 3 and 5 of the indictment Sheffler was convicted
of violating 18 U.S.C. § 1512(b)(3) and (k), provisions in this
witness tampering statute. Section 1512(b)(3) makes it a federal offense to: “engage[] in misleading conduct toward another person, with intent to … hinder, delay, or prevent the
communication to a law enforcement officer or judge of the
United States of information relating to the commission or
possible commission of a Federal offense.” Section 1512(k)
makes it a federal offense to “conspire[] to commit any offense
under this section.”
At issue is what § 1512 requires to implicate a federal
investigation. Fowler v. United States, 563 U.S. 668 (2011), is important to this interpretation. There, the Supreme Court evaluated a different part of the same statute—§ 1512(a)(1)(C)—
which criminalizes “kill[ing] another person, with intent to …
prevent the communication by any person to a law enforcement officer … of the United States.” Fowler, 563 U.S. at 670.
The defendant intended to prevent communication “to law
enforcement officers in general rather than to some specific
law enforcement officer or set of officers which the defendant
has in mind.” Id. at 672 (emphasis omitted). Though the defendant killed to prevent communication to all officials, he
lacked the particular intent to prevent communication to federal officials. See id. The Court held that such “broad indefinite
intent” is not enough. Id. at 674. Rather, where the defendant
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acts without particular officers in mind, “the Government
must show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant
communication would have been made to a federal law enforcement officer.” Id. at 677 (emphasis in original).
This reasonable likelihood requirement elucidates the statute and its application. Given the broad scope of federal
crimes, a more permissive standard “would transform a federally oriented statute into a statute that would deal with
crimes, investigations, and witness tampering that, as a practical matter, are purely state in nature.” Id. Despite these
guardrails, Fowler’s bar is low: “the Government must show
that the likelihood of communication to a federal officer was
more than remote, outlandish, or simply hypothetical,” although how much more has been left to the lower courts. Id. at
678; see United States v. Smith, 723 F.3d 510, 517–18 (4th Cir.
2013) (reiterating that “reasonable likelihood” in this context
is “a relatively low bar”); Bruce v. Warden Lewisburg USP, 868
F.3d 170, 185 (3d Cir. 2017) (same).
The relevant question for us is whether, when Sheffler
made false statements in his incident report and during the
police interviews, there was a reasonable likelihood they
would reach federal officials.
Before answering that question, though, a preliminary issue arises. Fowler addressed only § 1512(a)(1)(C), which criminalizes witness tampering by murder. 563 U.S. at 670. Does
Fowler’s reasonable likelihood standard also guide our interpretation of the statute under which Sheffler was convicted—
§ 1512(b)(3)—which criminalizes misleading conduct?
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We first compare the text of each statute. The subsection in
Fowler, § 1512(a)(1)(C), criminalizes (1) “kill[ing] or attempt[ing] to kill another person” (2) “with intent to” (3) “prevent the communication by any person to a law enforcement
officer or judge of the United States of information relating to
the commission or possible commission of a Federal offense
… .” (bolded numbered parentheses supplied).
The statute here, § 1512(b)(3), similarly criminalizes (1)
us[ing] intimidation, threaten[ing], or corruptly persuad[ing]
another person, or attempt[ing] to do so, or engag[ing] in misleading conduct toward another person” (2) “with intent to”
(3) “hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information
relating to the commission or possible commission of a Federal offense … .” (bolded numbered parentheses supplied).
These parallel provisions—composed of similar elements
and situated next to each other in the criminal code—are
properly evaluated under the same standard. See Ortiz-Santiago v. Barr, 924 F.3d 956, 961–62 (7th Cir. 2019) (a phrase
appearing multiple times in a statute is intended to have a
consistent meaning); ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012)
(under the presumption of consistent usage, words and
phrases are “presumed to bear the same meaning throughout
a text”).
This conclusion is consistent with the reasoning of other
circuits, which have deemed § 1512(a)(1)(C) and § 1512(b)(3)
“investigation-related provision[s] aimed at protecting the
communication of information to law enforcement.” United
States v. Shavers, 693 F.3d 363, 378–79 (3d Cir. 2012); see also
United States v. Veliz, 800 F.3d 63, 74 (2d Cir. 2015) (using the
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same “investigation-related provision” language); United
States v. Johnson, 874 F.3d 1078, 1081 (9th Cir. 2017) (same).
These investigation–related statutory provisions fall within
the same “line[] of jurisprudence,” so courts should evaluate
them under the same test. Shavers, 693 F.3d at 379; see also Lobbins v. United States, 900 F.3d 799, 802 (6th Cir. 2018) (holding
that “reasonable likelihood” standard applies to
§ 1512(a)(2)(C) just as it applies to § 1512(a)(1)(C), because
“absent good reason to do otherwise, we give the same words
the same meaning throughout the same statute”).
Based on the analogous text in the two provisions, the contextual canon of the presumption of consistent usage, and the
decisions of other circuits, the reasoning in Fowler as to
§ 1512(a)(1)(C) can be extended to § 1512(b)(3). The reasonable likelihood standard thus applies to Sheffler’s case. We return then to the question of whether sufficient evidence was
introduced at trial under that standard to support his convictions on Counts 3–5.
This court has addressed this standard from Fowler only
once, in United States v. Snyder, 865 F.3d 490 (7th Cir. 2017).
There, the defendant conspired to murder a potential witness
to cover up a convenience store robbery. Id. at 493–94. Though
initially charged in state court, that case was dismissed after
federal officials pursued federal charges, including Hobbs Act
robbery under 18 U.S.C. § 1951(a) and conspiring to kill a witness in violation of 18 U.S.C. § 1512(a)(1) and (k). Id. at 494.
Snyder pleaded guilty to robbery and other crimes, but he
took the conspiracy to murder a federal witness charge to jury
trial and was convicted. Id. at 494–95.
Snyder “outline[d] two separate paths the government can
take to show the required federal nexus under § 1512 … .” Id.
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at 497. “First, if the underlying crime … would have been
prosecuted in federal court, then it is reasonably likely that
the witness would have spoken with a federal officer during
the course of that prosecution.” Id. “Second, even if the underlying crime would not have been prosecuted in federal
court, the government can still satisfy § 1512 by showing a
reasonable likelihood that the victim would have communicated with a federal officer who was assisting the state prosecution of the underlying crime.” Id. The district court in
Snyder relied on the second path to deny Snyder’s motion for
judgment of acquittal. Id.
This court reversed, concluding that the evidence was insufficient on either path. Id. at 497–99. First, though the robbery could be prosecuted in state or federal court, that does
not satisfy § 1512, because out of hundreds of commercial robberies in that federal district, only six were prosecuted federally. Id. at 498. Second, state police and the FBI shared office
space and could possibly discuss an armed robbery, and federal officials provided technical investigative assistance. But
that did not show a reasonable likelihood that the deceased
would have communicated with a federal employee. Id.
In Snyder, the federal offense of killing a witness happened
after the underlying felonies, including the robbery, had been
completed. In contrast, here the crime remained the same—
Sheffler’s participation in the beating and then covering it up.
This case travels the first of the two paths laid out in Snyder,
inquiring whether the underlying crime would have been
prosecuted in federal court, and then asking if it is reasonably
likely that the witness would have communicated with a federal officer during that federal prosecution.
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This is where the facts in Snyder fall short of the stronger
federal nexus the government provided at Sheffler’s second
trial. Consider that Sheffler’s incident report was written on
an official Department of Corrections form, which was
reviewed by supervisors and kept in the regular course of
business. A false report therefore would be preserved for any
potential investigation, including a federal one. Further, Illinois corrections officers including Sheffler took an oath to
obey “all state and federal laws” and to “uphold the Constitution of the United States.” Their code of conduct explicitly
stated they must comply with “state and federal laws.” This
placed Sheffler on notice that civil rights violations could be
investigated. And Sheffler’s federal crime—the beating to
death of a prisoner while on duty as a corrections officer—
was both severe and intimately tied to his position of authority. This is the type of especially serious prison assault that
regularly forms the basis for federal civil rights investigations.
Witness testimony also provided this link. At trial, an FBI
agent explained that deprivation of a person’s civil rights under color of law is a federal offense. It was “not unusual at
all,” another agent testified, for the Illinois State Police to communicate with the FBI about potential federal-law violations.
That agent added: the “FBI investigates violations of federal
law. State Police investigates violations of state law. Sometimes they intersect; sometimes they don’t. But we work with
state and locals a lot, particularly on areas where there’s an
overlay between both systems.”
FBI cooperation with state authorities came quickly here.
The state police contacted the FBI about a potential federal investigation in early June 2018, within a few weeks of Earvin’s
assault and before Earvin died. The FBI promptly opened an
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investigation. Four days before Earvin died, an FBI agent tried
to interview him. He was on “breathing assistance,” and
could communicate “very minimally.” When the agent questioned him about the incident, “he would kind of grimace in
pain and cringe up toward one side.” Although the key question remains the likelihood of federal involvement at the time
of the misleading conduct, rapid federal investigation provides additional evidence of that likelihood. See Veliz, 800 F.3d
at 75 (recognizing “the very fact that communication with federal officials” eventually took place may “lend[] some support
to a finding that the communications were reasonably likely
at the time of the [misleading conduct]”). And Sheffler’s false
incident report and untruthful statements during his state police interview reached the FBI in the natural progression of its
investigation, not in some “remote, outlandish, or simply hypothetical” manner, as Fowler prohibits. 563 U.S. at 678.
From all this evidence, a jury could fairly conclude that an
inmate’s death at the hands of state correctional officials
would be investigated by federal authorities. 3 Sheffler used
his government authority to kill a person under his supervision. Crimes of great severity committed under state control
are more likely to yield a federal investigation. So, it was reasonably likely that relevant communications in Sheffler’s case
would reach federal law enforcement.
3 This court has promulgated pattern jury instructions for crimes al-
leged under 18 U.S.C. §§ 1512 and 1519. COMMITTEE ON FEDERAL CRIMINAL
JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT, THE WILLIAM J. BAUER
PATTERN CRIMINAL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT (2020 ed.).
The district court gave four of those instructions to the jury. Jury Instrs.
77–81, ECF No. 402.
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Courts are also inclined to find reasonable likelihood of
communication reaching federal officials when there is evidence of state-federal cooperation. See United States v. Tyler,
956 F.3d 116, 120 (3d Cir. 2020) (murdered witness had
worked with a state agent who met with the DEA multiple
times a month and frequently referred cases); United States v.
Smith, 723 F.3d 510, 518 (4th Cir. 2013) (city police department
worked closely with DEA and was major source of information, with testimony that even street-level drug cases came
to DEA attention); United States v. Ramos-Cruz, 667 F.3d 487,
498–99 (4th Cir. 2012) (federal officials were previously focused on the group involved, and local officials investigating
the underlying crime were actively cooperating with federal
officials). The FBI agent’s testimony here about “work[ing]
with state and locals a lot” supports this conclusion.
Indeed, when courts decline to find reasonable likelihood
that a relevant communication would make it to a federal officer, the evidence is noticeably weaker than that which the
government offered here. See United States v. Gatlin, 90 F.4th
1050, 1064–66 (11th Cir. 2024) (defendant’s misleading statements given to state public defender’s office to influence state
prosecution; defendant thought he faced a state law charge);
Lobbins, 900 F.3d at 803 (federal detainee assaulted another
federal detainee who had relayed information to a state prosecutor; that did not support inference that cooperating detainee was likely to talk to a federal official).
Sheffler points to United States v. Johnson, 874 F.3d 1078
(9th Cir. 2017), in which a § 1512(b)(3) conviction was reversed
because “the Government presented minimal evidence of a
federal nexus.” Id. at 1083. Both this case and Johnson involved
a state correctional officer using force against an inmate and
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19
then failing to truthfully document the encounter. Id. at 1079–
80. In Johnson, the government presented evidence of a “use
of force” policy incorporating federal constitutional law. Id. at
1083. The officer also received training on the policy, so he
knew that excessive force violates the Constitution, which he
swore to uphold. Id. Aside from that, the government provided no evidence of a federal nexus. See id. The Ninth Circuit
concluded in Johnson that this evidence was insufficient under
Fowler’s reasonable likelihood standard. Id.
But Johnson differs from this case. In Johnson the jury knew
that a state employee had committed a federal crime, but the
likelihood of federal involvement remained nebulous. There
is no such problem here. The government provided crucial
evidence of federal involvement, including the testimony
from the FBI agents as detailed above.
The reasonable likelihood standard of Fowler is not onerous. It requires “more than [a] remote, outlandish, or simply
hypothetical” possibility of federal involvement, but declines
to set the bar higher than that. 563 U.S. at 678. And when reviewing for sufficiency of the evidence, we ask whether any
reasonable jury had the evidence to find guilt beyond a reasonable doubt. Rivera, 901 F.3d at 900–01. Given these permissive standards, each of which Sheffler must satisfy, we are not
persuaded that his convictions should be reversed on Counts
3 and 5 under 18 U.S.C. § 1512(b)(3) and (k).
A related topic remains. Sheffler was convicted in Count 4
of violating 18 U.S.C. § 1519, which provides:
Whoever knowingly alters, destroys, mutilates,
conceals, covers up, falsifies, or makes a false
entry in any record, document, or tangible
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object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any
department or agency of the United States …
shall be fined … imprisoned … or both.
(emphasis supplied). We have not previously addressed what
standard applies when determining whether a matter falls
“within the jurisdiction of” the federal government. Sheffler
argues that Fowler’s reasonable likelihood standard applies to
§ 1519, the same as it does to § 1512.
“The most natural grammatical reading of the statute is
that the term ‘knowingly’ in § 1519 modifies only the surrounding verbs: ‘alters, destroys, mutilates, conceals, covers
up, falsifies, or makes a false entry.’” United States v. Yielding,
657 F.3d 688, 714 (8th Cir. 2011). The term “knowingly” adds
no requirement to the jurisdictional language later in § 1519.
It is enough for the defendant to intend to obstruct an investigation, and on an unrelated note, for the investigation to be
within federal jurisdiction.
This lines up with the usual understanding of jurisdictional elements, which typically lack a mens rea requirement.
See United States v. Feola, 420 U.S. 671, 677 n.9 (1975) (“[T]he
existence of the fact that confers federal jurisdiction need not
be one in the mind of the actor at the time he perpetrates the
act made criminal by the federal statute.”); United States v.
Ringer, 300 F.3d 788, 791 (7th Cir. 2002) (under 18 U.S.C.
§ 1001, “made knowingly and willingly” and “concerned a
matter within the jurisdiction of a federal department or
agency” are independent elements). See also United States v.
Cooper, 482 F.3d 658, 664–65 (4th Cir. 2007) (“It is well settled
that mens rea requirements typically do not extend to the
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jurisdictional elements of a crime[.]”); United States v. Campa,
529 F.3d 980, 1006 (11th Cir. 2008) (“[N]o proof of mens rea is
necessary for elements that are ‘jurisdictional only.’”(quoting
Feola, 420 U.S. at 676 n.9)); United States v. McRae, 702 F.3d 806,
835 (5th Cir. 2012) (“[T]he mens rea of a federal criminal statute does not ordinarily extend to the statute’s jurisdictional
elements.”).
Other circuits considering this issue have unanimously
reached the same conclusion. See United States v. Hassler, 992
F.3d 243, 247 (4th Cir. 2021) (“Every circuit to address [§ 1519]
… has concluded that knowledge of a federal investigation
under § 1519 is a jurisdictional element and not a separate
mens rea requirement that the jury must specifically find.”);
United States v. Gonzalez, 906 F.3d 784, 795 (9th Cir. 2018) (“To
sustain a conviction under § 1519, it is enough for the government to prove that the defendant intended to obstruct the investigation of any matter as long as that matter falls within
the jurisdiction of a federal department or agency.”); United
States v. Gray, 692 F.3d 514, 519 (6th Cir. 2012) (same); United
States v. Moyer, 674 F.3d 192, 208–09 (3d Cir. 2012) (same);
Yielding, 657 F.3d at 714 (same).
We join these other circuits in reading § 1519 as containing
a pure jurisdictional requirement, with no federal intent component. Fowler’s reasonable likelihood standard therefore
does not apply to Sheffler’s conviction under § 1519.
Sheffler conspired to and engaged in misleading conduct
by knowingly filing a false incident report describing Earvin’s
escort, as well as by falsely denying he knew about, witnessed, and participated in the assault of Earvin during his
interview with the Illinois State Police. So, Sheffler’s convictions on Counts 3–5 stand.
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B. Proffer Agreement
Sheffler also disputes the district court’s revocation of his
proffer agreement with the government before the first jury
trial. He says he provided truthful and complete information
during his FBI interviews, so the court erred when it found
that Sheffler breached the agreement and permitted the government to introduce the proffered statements at his second
jury trial.
A proffer agreement is “considered to be a contract,” and,
like any other contract, “must be enforced according to its
terms.” United States v. Reed, 272 F.3d 950, 954 (7th Cir. 2001).
Breach permits the government to use proffered statements at
trial. Absent breach, those statements remain excluded. The
district court concluded that Sheffler was not truthful in three
ways—about his knowledge and participation in the assault,
that he knew Earvin was injured, and about Sheffler’s contacts
with Banta after the incident. Sheffler disputes these conclusions. As with any other contract, breach is a factual determination, so we review the district court’s conclusions for clear
error. See id. at 953.
Sheffler says he spoke truthfully when he denied he saw
Banta assault Earvin. Sheffler correctly points out that witnesses recalled the assault with varying details and precision.
Indeed, Sheffler himself describes the incident in different
ways. Seeing something through one’s “peripheral vision” is
not far from being unsure something occurred, especially
during a heated incident. And when asked for his opinion,
Sheffler described Banta’s actions as a potentially “honest
mistake.” That statement about Banta’s state of mind does not
directly contradict Sheffler’s other statements.
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But as to Sheffler’s insistence that he did not observe
Earvin’s injuries, there is little room for honest disagreement.
After the assault, other officers saw Earvin unconscious with
blood on his shirt. Many of Earvin’s injuries from the officers
kicking him and jumping on his chest were internal. Yet, given
Sheffler’s close proximity to Earvin during the assault, the extent of the injuries, and others’ recollection of bleeding, Sheffler’s wholesale denial of seeing injuries is untenable.
That Sheffler falsely denied contacting Banta post-incident
is even more clean cut. Sheffler claims on appeal that it makes
“perfect sense” not to “recall two fleeting calls over a year
later.” But these phone calls took place the day of the assaults
and immediately afterward, when Sheffler and Banta had a
pressing need to coordinate a consistent story. The district
court’s finding that Sheffler made false statements about the
phone calls follows naturally from the context of those calls.
The government provided ample evidence that Sheffler
was not truthful in his FBI interviews, at least about Earvin’s
injuries and his phone calls with Banta. The district court did
not clearly err in concluding that Sheffler had breached the
proffer agreement, and by allowing the government to offer
Sheffler’s statements at trial.
C. Juror Bias
Sheffler next argues that the district court erred by not dismissing a juror he contends was biased, depriving him of his
right to a fair trial. We “review a district court’s decisions concerning jury impartiality for an abuse of discretion.” United
States v. Howard, 692 F.3d 697, 707 (7th Cir. 2012). That review
is deferential to the district court, which is best equipped to
assess the credibility and demeanor of jurors. United States v.
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Brodnicki, 516 F.3d 570, 574 (7th Cir. 2008); see also United States
v. Granger, 70 F.4th 408, 411 (7th Cir. 2023) (noting that trial
judges “can hear the prospective juror’s tone of voice” and
“see the prospective juror’s facial expressions and body language,” credibility indicators unavailable on appellate review). As a remedy Sheffler requests a new trial.
Twice questions arose as to whether a juror who sat on the
second trial may be biased.
The record shows that during jury selection, Juror 31 was
questioned and denied discussing the case with others. There
is no basis for us to question the magistrate judge’s handling
of this topic during voir dire, or for us to conclude that the
juror was untruthful or harbored any bias against Sheffler.
Then, early in the second trial, new information was
brought to the court prompting further investigation. The
court was informed that a juror from the first trial had communicated with Juror 31’s spouse. The government investigated and told the court that the former juror admitted to texting about and discussing the case with Juror 31’s wife. But
the former juror denied discussing the case with Juror 31.
When the district judge questioned Juror 31 on this point, he
confirmed he had not discussed the case with anyone, including his wife. Sheffler has not provided any basis to assume
Juror 31’s answers were unreliable.
The district judge spoke directly with Juror 31 and was in
the best position with the best information to assess his credibility. The district judge saw “nothing that would permit an
excuse for cause” and declined to remove Juror 31. None of
the information gleaned raised concerns about bias. These
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circumstances were carefully and properly handled, including the questioning of Juror 31.
Sheffler also contends the district court incorrectly rejected
his jury bias concerns as untimely. The court stated, “the issue
has already been blown, quite frankly.” This could be interpreted as a failure to timely move to strike Juror 31 before
trial. If so, this could raise a problem, as the former juror’s
concerning statements arose only after the second trial had
started. But the court investigated those new concerns and
concluded that there was no evidentiary basis to dismiss Juror
31. This shows Sheffler’s allegation of juror bias was fairly and
reasonably considered on the merits.
The circumstances involving Juror 31 were serious. A
court faced with a similar situation must be careful about any
possible intrusion into juror fairness, including a potential juror’s discussions with a spouse exposed to extra-record information. Still, we conclude that the district court here thoroughly vetted this matter and did not abuse its discretion.
D. Prosecutorial Misconduct
Sheffler next contends the district court erred in refusing
to grant his motion for a new trial based on prosecutorial misconduct. He criticizes three statements by the prosecutor during the rebuttal closing argument, the final words the jury
heard from either party. According to Sheffler, the prosecutor
disparaged defense counsel, misrepresented evidence by
denying an assault in D Wing, and undermined Sheffler’s
right to remain silent. These comments deprived him of a fair
trial, Sheffler submits. To prevail, he must show the district
court abused its discretion by not granting a new trial. United
States v. Bloom, 846 F.3d 243, 254 (7th Cir. 2017).
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A claim of prosecutorial misconduct is reviewed in two
steps. Initially, we “determine whether the prosecutor’s remark was improper.” United States v. Hale, 448 F.3d 971, 986
(7th Cir. 2006). Then, if misconduct is found, the court assesses whether the conduct prejudiced the defendant. Id. at
986; United States v. Washington, 417 F.3d 780, 786 (7th Cir.
2005).
First, Sheffler takes issue with the prosecutor highlighting
objections that had been sustained during the defense closing
argument. Defense counsel misstated the presumption of innocence by asking the jury to think of Sheffler as a close friend
or relative. The prosecutor addressed this topic on rebuttal,
clarifying that defense counsel’s statements were incorrect, as
confirmed by the court sustaining objections to those statements.
Though “[a]ttorneys should not attack opposing counsel
personally … they may criticize opposing counsel’s tactics
and the strength of the evidence.” United States v. Gan, 54 F.4th
467, 480 (7th Cir. 2022). For example, prosecutors may go so
far as to call opposing counsel’s argument “made up” or “ludicrous.” Id. (quoting Washington, 417 F.3d at 786–87). The
prosecutor’s reminder to the jury about the sustained objections is problematic, and we do not encourage such a comment. Still, the prosecutor’s critique was limited to defense
counsel’s particular statements; it did not extend to personal
attacks. For that reason, there was no prosecutorial misconduct.
Even if this statement by the prosecutor was improper, it
did not prejudice Sheffler. At the trial’s beginning and end,
the district court instructed the jury that the lawyers’ statements, arguments, and objections are not evidence. And the
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rebuttal argument came at the close of a 15-day trial, in which
multiple witnesses testified to Sheffler’s participation in the
fatal beating. So, brief comments about defense counsel’s
credibility are unlikely to have affected the jury’s verdict.
Sheffler’s second claim—that in the rebuttal argument the
prosecutor misrepresented the evidence—fares no better.
Sheffler contends the prosecutor claimed Earvin was not
beaten or assaulted in D Wing of the prison. But Sheffler overlooks the distinction between D Wing and the R1 entryway.
The prosecutor never disputed that an assault occurred in the
R1 entryway. But as to D Wing, where video footage is unclear and witness memories less certain, the assault was disputed. The prosecutor’s denial of an assault precisely in D
wing is not necessarily inconsistent with the evidence.
Prosecutors “may argue reasonable inferences from the
evidence that the jury has seen and heard.” United States v.
Waldemer, 50 F.3d 1379, 1383 (7th Cir. 1995); Evans v. Jones, 996
F.3d 766, 775 (7th Cir. 2021). If the inferences are weak, the
jury is free to disregard the prosecutor’s claims. As noted, the
jury was instructed that lawyer’s statements are not evidence,
and “the evidence is what counts.” So, even if during the
rebuttal the government misrepresented where the beating
occurred, there was no prejudice. The jury could recall the evidence, as instructed, and give evidence about a D Wing beating its proper weight. Our review is also for plain error, as
Sheffler did not object to the prosecutor’s statement. See
United States v. Echols, 104 F.4th 1023, 1025 (7th Cir. 2024).
Given the amount of inculpatory evidence at trial, Sheffler
cannot show that this statement made his trial fundamentally
unfair.
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Third, Sheffler claims the prosecutor undermined his right
to remain silent by arguing he had “multiple opportunities”
to intervene and an “obligation to be complete and truthful.”
But in context, the prosecutor’s statements did not undermine
Sheffler’s right to silence. Rather, the prosecutor was pointing
to the conflict between Sheffler’s arguments at trial and his
statements before trial. During closing arguments, Sheffler’s
counsel said that Sheffler’s “back was to everything that was
happening” and he “consistently said that” to the FBI. By
making this claim, Sheffler opened the door to questions on
his statements in the FBI interviews. The prosecutor was permitted to set the record straight as to what Sheffler shared—
and failed to share—when speaking with law enforcement.
The prosecutor was speaking to commentary and statements
by the defense. That is not commenting on Sheffler’s constitutionally protected silence.
Even if the prosecutor’s statement was construed as commenting on Sheffler’s silence, any error would be harmless.
The district court instructed the jury on the defendant’s right
not to testify, which would address any concerns about this
statement. Further, we do not consider the rebuttal argument
in isolation. It is viewed in the context of the entire trial and
numerous witnesses who testified to Sheffler’s conduct. The
prosecutor’s brief and somewhat cryptic comment about
Sheffler’s silence cannot hold up to the overwhelming amount
of evidence inculpating him.
The prosecutor committed no misconduct during the rebuttal argument. And we cannot see how the prosecutor’s
comments would have swayed the jury’s verdict. The denial
of a motion for a new trial on this contention was not an abuse
of discretion.
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Finally, Sheffler asserts cumulative error at his second
trial. To succeed on such a claim, he must show “(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to have rendered his
trial fundamentally unfair.” United States v. Powell, 652 F.3d
702, 706 (7th Cir. 2011). We reject this assertion, not just because we have found no reversible errors at trial, but in “light
of the quantity and quality of evidence of [the defendant’s]
guilt adduced at trial.” Id. at 707.
III. Conclusion
The evidence at trial was sufficient to show a reasonable
likelihood that Sheffler’s statements would reach federal officials, and thus that he violated 18 U.S.C. § 1512, prohibiting
witness tampering, and 18 U.S.C. § 1519, forbidding falsifying
records in a federal investigation.
The district court also did not clearly err in concluding that
Sheffler had breached the proffer agreement, and by allowing
the government to offer Sheffler’s statements at trial. Nor did
the district court abuse its discretion by denying his motion
for a new trial. For all these reasons, we AFFIRM.
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E-FILED
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RESTRICTED
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01/30/2024
Pages:
116
23 December,
2022
10:12:05 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
TODD SHEFFLER,
Defendant.
Case No. 19-30067
ORDER
SUE E. MYERSCOUGH, United States District Judge:
Before the Court are Defendant Todd Sheffler’s amended motion
for judgment of acquittal [d/e 423] and motion for new trial [d/e 424].
Because the Government presented sufficient evidence on each count
and the interests of justice do not require a new trial, the Court will
deny both motions.
Defendant Todd Sheffler was charged along with co-Defendants
Willie Hedden and Alex Banta in a ten-count Indictment with
conspiracy to deprive civil rights, deprivation of civil rights,
conspiracy
to
engage
in
misleading
conduct,
obstruction—
falsification of document, and obstruction—misleading conduct.
1
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Defendant Hedden pled guilty to certain charges and testified at the
trials of Defendants Sheffler and Banta. On April 25, 2022, a jury
found Defendant Banta guilty of all charges but did not reach
unanimous verdicts as to Defendant Sheffler. Following a retrial,
Defendant Sheffler was convicted of all counts in the Indictment on
August 23, 2022.
In his amended motion for judgment of acquittal under Federal
Rule of Criminal Procedure 29, Defendant Sheffler alleges the
Government has failed to present sufficient evidence to prove beyond
a reasonable doubt that Defendant Sheffler ever knowingly became a
part of a conspiracy to deprive Larry Earvin of his constitutional
rights. See d/e 423, at 2. Defendant Sheffler further alleges that the
Government has not presented sufficient evidence to prove beyond a
reasonable doubt that Sheffler himself ever knowingly used excessive
force on Mr. Earvin or, alternatively, that Sheffler knew another
correctional officer was using excessive force, Sheffler had a
reasonable opportunity to intervene to prevent harm, and Sheffler
failed to do so, resulting in harm to Mr. Earvin. Id. at 2-3. Defendant
Sheffler asserts that the Government has also failed to prove beyond
2
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a reasonable doubt that Defendant Sheffler conspired to obstruct
justice, falsified a document, and obstructed justice as alleged in
Counts 3, 4, and 5 of the Indictment. Id. at 3.
In his motion for new trial pursuant to Federal Rule of Criminal
Procedure 33, Defendant Sheffler alleges the Government failed to
prove him guilty beyond a reasonable doubt as to each charge. See
d/e 424, at 2. The Defendant reasserts each of the arguments made
in Defendant’s motion for judgment of acquittal.
Id. at 2.
Additionally, the Defendant claims that a new trial is necessary
because of prosecutorial misconduct throughout the trial. Id. at 3.
Specifically, the Defendant alleges (1) the prosecutor engaged in
misconduct by commenting on Defendant’s exercise of his Fifth
Amendment right to discontinue communication with government
agents after being admonished of that right and making an
unambiguous election to exercise that right; (2) the prosecutor
engaged in misconduct by misrepresenting to the Court that the
proffer agreement superseded the Fifth Amendment, in that a breach
of the cooperation agreement allowed the Government to introduce
not only Defendant’s pre-invocation statements, but also his post-
3
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invocation silence and argue to the jury that Defendant remained
obligated both before and after the Indictment to come forward and
provide complete and truthful information; (3) the prosecutor
engaged in misconduct by repeatedly attacking defense counsel,
particularly during rebuttal closing arguments; and (4) the
prosecutor committed plain error in arguing that Defendant had
confessed his guilt to most of the charges asserted against him. Id.
at 3-6. The Defendant also claims that the Court erred in denying
that portion of Defendant’s motion in limine no. 10 seeking the
exclusion of Defendant Sheffler’s proffer agreement from evidence at
trial. Id. at 6. The Defendant further asserts the Court erred in
denying that portion of Defendant’s motion in limine no. 10 seeking
to exclude reference to the identity of Government counsel (Mr. Bass)
and Defense counsel (Mr. Vig) during interviews of Defendant or other
witnesses. Id. Finally, the Defendant contends that these errors,
individually and cumulatively, deprived Defendant of the right to a
fair trial such that a new trial must be granted. Id.
The Government claims that Defendant Sheffler’s arguments
are waived and/or are without merit. See d/e 433.
4
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Under Rule 29, a defendant may move for judgment of acquittal
on the basis that the “evidence is insufficient to sustain a conviction.”
Fed. R. Crim. P. 29(a).
In considering a motion for judgment of
acquittal, courts determine “whether there was sufficient evidence,
when viewed in the light most favorable to the government, to allow
a rational trier of fact to find all of the essential elements of an offense
beyond a reasonable doubt.” United States v. Rahman, 805 F.3d
822, 837 (7th Cir. 2015).
Rule 33 authorizes a defendant to move for a new trial which
the Court may grant “if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). Under Rule 33, the question is “whether the verdict
is so contrary to the weight of the evidence that a new trial is required
in the interests of justice.” United States v. Chambers, 642 F.3d 588,
592 (7th Cir. 2011).
The Court has reviewed the trial record and finds that, upon
viewing the evidence in a light most favorable to the Government, a
rational jury could find all of the essential elements of each count: (1)
conspiracy to deprive civil rights which resulted in the death of Mr.
Earvin; (2) deprivation of civil rights which resulted in Mr. Earvin
5
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suffering bodily injury and death; (3) conspiracy to engage in
misleading conduct; (4) obstruction--falsification of a document; and
(5) obstruction—misleading conduct. Consequently, there is no basis
for a judgment of acquittal.
Additionally, the verdict is not so
contrary to the weight of the evidence that the interests of justice
require a new trial. The Court further finds that Defendant Sheffler’s
allegations concerning prosecutorial misconduct are without merit.
None of those allegations—standing alone or cumulatively—warrant
a new trial in the interest of justice.
For these reasons, Defendant Todd Sheffler’s Amended Motion
for Judgment of Acquittal [d/e 423] and Motion for New Trial
pursuant to Federal Rule of Criminal Procedure 33 [d/e 424] are both
DENIED.
ENTER: December 22, 2022
FOR THE COURT:
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT COURT
6
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Filed: 02/06/2025
Pages: 1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 6, 2025
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1557
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TODD SHEFFLER,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 3:19-CR-30067
Sue E. Myerscough,
Judge.
ORDER
On consideration of the petition for rehearing and for rehearing en banc filed by
Defendant-Appellant on January 22, 2025, no judge in active service has requested a vote on
the petition for rehearing en banc, and the judges on the original panel have voted to deny
rehearing.
Accordingly, the petition for rehearing is DENIED.
App. 36
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.