Appendix — Christ v. United States (No. 08-112)

la

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 07-1634

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

MATTHEW CHRIST,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois,

Eastern Division.

No. 03 CR 1093—John W. Darrah, Judge.

ARGUED SEPTEMBER 26, 2007—

DECIDED JANUARY 28, 2008

2a

Before MANION, EVANS, and SYKES,

Circuit Judges.

MANION, Circuit Judge. From 1999 until 2001,

Matthew Christ served as a consular officer at

the American Embassy in Vilnius, Lithuania. A

jury convicted Christ of one count of conspiring

to commit visa fraud, finding that he used that

position to fraudulently facilitate the issuance of

visas to certain Lithuanian citizens. Christ

appeals, arguing that there was insufficient evi-

dence to support his conviction, and that the dis-

trict court abused its discretion in admitting

certain evidence and testimony. Christ asserts

that the district court further erred by failing to

give a missing witness instruction, and that it

relied on improper facts in enhancing his offense

level at sentencing, thereby rendering his sen-

tence unreasonable. We affirm Christ’s conviction

and sentence.

a

On March 23, 2006, Matthew Christ was

charged in a Fourth Superseding Indictment

(“Indictment”) with two counts of conspiracy to

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

and 1546 and one count of bribery in violation of

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

ernment dismissed one of the visa fraud counts.

The case proceeded to trial on October 23, 2006,

and the jury was presented with evidence of the

following. Christ is a graduate of the United

States Military Academy in West Point, New

York. After more than a decade of active service

3a

in the United States Army, he became a Foreign

Service Officer with the Department of State and

was assigned to the American Embassy in Vil-

nius, Lithuania. Christ held this position from

August 1999 until July 2001, during which time

he was authorized to adjudicate visa applications

and submit favorable referrals. A visa is a docu-

ment issued to a non-citizen signifying that the

holder was screened by a consular officer who

determined that there is no reason to deny travel

to the United States. In making this determina-

tion. consular officers consider the applicant’s

credibility and criminal background, as well as

indicia that the applicant will return from the

United States after his visit. While an interview

is normally required as part of this review pro-

cess, rules in place during the period in question

allowed consular officers to waive the interview

for individual applicants or categories of appli-

cants considered low risks for visa violations. !

The interview requirement could also be waived

if an application was accompanied by a document

known as a Class A referral (“referral”). A refer-

ral is a form submitted by a consular officer stat-

ing that the applicant is well and favorably

known to the officer, and that expeditious pro-

cessing of the application is in the national inter-

est of the United States. According to a State

Department memo introduced at trial, referrals

are appropriately submitted on behalf of influ-

l

Karen Christensen, a division chief with the Bureau

of Consular Affairs at the State Department, testified that

following the terrorist attacks of September 11, 2001, rule

changes were effected requiring that every visa applicant.

without exception, be interviewed.

4a

ential persons in government, business, science,

and academia, or other persons able to enhance

diplomatic relations. After this review process,

the visa application is adjudicated, meaning that

the final decision to grant or deny the visa is

made.

The government charged that Christ engaged

in the visa fraud conspiracy with four Lithuani-

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

Robertas Grigaitis (“Robertas”), Mindaugas

Masiliunas (“Masiliunas”), and Valdas Stauga

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

motorcycles, which he then sold. After placing a

newspaper advertisement for the sale of a

restored motorcycle, Aivaras was contacted by

Christ, who is an admirer and collector of

antique motorcycles. After meeting at Aivaras’s

shop, Christ purchased the advertised motorcy-

cle, and Aivaras delivered it to his home. During

this transaction, Aivaras learned of Christ’s

employment at the embassy. Aivaras and his

brother Robertas desired to live in the United

States because of the poor economic situation in

Lithuania at the time, and the two speculated

that Christ’s employment at the Embassy might

combine with his interest in motorcycles to make

him a helpful resource in obtaining visas. Sub-

sequently, Aivaras invited Christ back to his

shop to see another motorcycle he had restored.

After Christ expressed interest, Aivaras offered

it to him in exchange for help in obtaining visas.

Aivaras testified that Christ agreed to the offer.

Christ told Aivaras that in order to apply for

visas he and Robertas needed passports, photos,

and application fees. When Aivaras asked if they

5a

should bring these items to the Embassy, Christ

responded that he would instead come to

Aivaras’s shop after business hours.

Christ arrived at Aivaras’s shop on the desig-

nated evening with blank applications, which the

Grigaitis brothers then completed in his pres-

ence. On Christ’s advice, Robertas stated on his

application that he intended to travel to the

United States for tourism, although he testified

at trial that he also intended to find employment

here. Because Aivaras’s passport was missing, he

was unable to complete an application in his

name. He instead completed one for Masiliunas,

a friend of his, stating on Christ’s advice that

Masiliunas’s purpose for traveling to the United

States was tourism. Upon completing the appli-

cation, Aivaras signed it in Masiliunas’s name.

Christ took the applications back to the

Embassy, and adjudicated Robertas’s application

in November 1999, and Masiliunas’s application

in December 1999. Ruta Kundrotiene, a visa

assistant at the Lithuanian Embassy responsible

for processing applications, testified that each

man was issued a ten-year visa allowing periodic

travel to the United States.

When Christ delivered these visas to Aivaras,

Aivaras requested additional assistance in

obtaining a visa for himself, as well as Stauga,

his neighbor. Christ agreed and subsequently

returned to Aivaras’s shop with blank applica-

tions. Aivaras completed his application, as well

as Stauga’s, in Christ’s presence. Instead of per-

sonally adjudicating this second yair of visas,

Christ submitted each application with a refer-

ral. While the government did not present the

6a

referral forms themselves at trial, there was evi-

dence of Christ’s conduct in the form of a hand-

written notation on each application stating,

“Referred by Matt Christ.” In March 2000,

Aivaras and Stauga were issued visas of the

same sort previously issued to Robertas and

Masiliunas. Kundrotiene testified that Christ’s

referrals allowed Aivaras and Stauga to receive

visas without being interviewed. Aivaras testi-

fied that after the four visas were issued, he

delivered the agreed-upon motorcycle to Christ’s

house, and Christ never paid, nor offered to pay,

for it.

In November 2000, Aivaras again contacted

Christ and requested his assistance in obtaining

visas for Robertas’s wife and two children.

Aivaras told Christ that he was restoring addi-

tional motorcycles he could offer Christ in

exchange for his help. Aivaras testified that

Christ agreed, and Robertas subsequently con-

tacted him. The two arranged to meet at a gas

station, and Robertas arrived with completed

applications he had obtained for his family, as

well as their passports. Christ submitted these

applications in February 2001 with referrals. The

referral forms, which were introduced at trial,

stated that the applicants were well and favor-

ably known to Christ and that expeditious pro-

cessing of the applications was in the national

interest of the United States. Robertas testified,

however, that no one in his family had ever met

Christ. Notwithstanding Christ’s referrals, the

visa assistant processing the applications deter-

mined that Rovertas’s family should be inter-

viewed because Robertas’s visa had been so

7a

recently issued. The family was directed to

appear with, among other documents, Robertas’s

passport, which would allow consular officers to

determine whether he had traveled to the United

States, and if so, whether he had returned to

Lithuania. When Robertas’s family failed to

arrive for their interview with the requested doc-

uments, their applications were denied. These

events surrounding the family applications

resulted in an investigation of visa fraud at the

Vilnius Embassy, leading ultimately to Christ’s

indictment and arrest.

In addition to the above, the jury heard testi-

mony regarding Christ’s financial transactions

and motorcycle interests around the time he

received the second motorcycle from Aivaras.

Roland Slabon, president of a group known as

Vintage BMW Motorcycle Owners, testified that

Christ contacted him in the Fall of 1999 inquir-

ing about certain types of antique BMW motor-

cycles, and expressing interest in purchasing

some that he had come across in local markets.

Additionally, Charles Christ, the defendant’s

father, testified that he had a telephone conver-

sation with his son in February 2000 during

which Christ stated his intent to purchase a

BMW motorcycle for $1,000 in the coming weeks.

Finally, an auditor with the United States Attor-

ney’s Office testified regarding checks cashed by

Christ at the Lithuanian Embassy between

August 1, 1999, and September 28, 2001. While

Christ cashed checks for amounts ranging from

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

attention was directed to two separate checks

each for $500.00 cashed three days apart in early

Sa

February 2000. The defense argued in closing

that these checks corroborated the testimony of

Charles Christ, and that the testimony, taken as

a whole, showed that Christ did not receive the

second motorcycle as a bribe from Aivaras, but

rather purchased it. The defense further argued

that if the jury found that Christ purchased that

motorcycle, it followed that he had no motive to

engage in a conspiracy to commit visa fraud, and

the evidence was therefore insufficient to convict

him of that charge.

On November 1, 2006, the jury returned a ver-

dict of guilty on the visa fraud charge, and not

guilty on the bribery charge. Thereafter, Christ

moved for a judgment of acquittal, or alterna-

tively, for a new trial. In arguing for a judgment

of acquittal, Christ argued that insufficient evi-

dence was presented to establish his guilt beyond

a reasonable doubt. His motion for a new trial

was also based on the insufficiency of the evi-

dence, as well as his argument that the district

court’s admission of certain evidence and failure

to properly instruct the jury deprived him of a

fair trial. Specifically, Christ argued that the dis-

trict court should not have admitted the evidence

involving Robertas’s family because it amounted

to evidence of an uncharged conspiracy not intri-

cately intertwined with, or undertaken in fur-

therance of, the charged conspiracy. Next, Christ

argued that his trial was unfair because the

referral notations on Aivaras’s and Stauga’s

applications were inadmissible hearsay. Christ

also argued that the court should not have

allowed the government to question Roland

Slabon regarding Christ’s payment to him of wit-

9a

ness fees. Finally, Christ argued that his trial

was rendered unfair by the district court’s failure

to give a missing witness instruction after the

government failed to call certain consular offi-

cials. Christ’s motion was denied by the district

court on February 21, 2007. The district court

proceeded to sentencing on March 1, 2007, at

which point it determined Christ’s Guideline

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

This range was arrived at, in part, by including

the family visa applications in Christ’s relevant

conduct. Christ was sentenced to twenty-four

months in prison. He now appeals his conviction

based upon the same grounds as his post-trial

motion. Additionally, he argues that his sentence

was unreasonable because the district court had

no basis to find that Christ’s crime involved more

than the four visas procured for the co-conspir-

ators.

II.

We begin with Christ’s evidentiary challenges.

First, Christ argues that the district court erred

in admitting the evidence related to the family

visa applications that were rejected when Rober-

tas’s family failed to show up for their interview

with the requested documents. He asserts that

the evidence was irrelevant, and not undertaken

in furtherance of, or intricately related to, the

charged conspiracy. The district court admitted

the evidence primarily under the theory that it

was intricately related to the conspiracy, and

therefore admissible to explain fully the cir-

cumstances related to the charged crime. See

10a

United States v. Thompson, 286 F.3d 950, 968

(7th Cir. 2002) (“Evidence that is so blended or

connected that it incidentally involves, explains

the circumstances surrounding, or tends to prove

any element of, the charged crime is excluded

from Federal Rule of Evidence 404(b)’s prohibi-

tion against other acts evidence admitted to show

action in conformity therewith and, therefore,

may be admitted at trial.”) (internal quotation

omitted). Additionally, the district court noted

that its finding was supported by the fact that

the conduct surrounding the family applications

was charged in the Indictment, and alleged to

have occurred in furtherance of the charged con-

spiracy. We review the district court’s decision to

admit this evidence for abuse of discretion.

United States v. Hale, 448 F.3d 971, 985 (7th Cir.

2006).

Christ argues that the district court abused its

discretion in admitting this evidence because the

charged conspiracy only involved Christ’s pro-

curement of visas for the four co-conspirators.

Specifically, Christ relies on paragraph 4 of the

Indictment which charged:

It was part of the conspiracy that defendant

CHRIST, together with Aivaras Grigaitis,

Robertas G., Mindaugas M., and Valdas S.,

gave and caused to be given something of

value to CHRIST to induce him to commit

and umit acts in violation of his official

duties as a Foreign Service Officer for the

Department of State and to facilitate the

commission of other criminal offenses, such

as immigration fraud and identification doc-

lla

ument fraud, in that they agreed to provide a

vintage BMW motorcycle directly to CHRIST,

to cause the issuance of non-immigrant visas

to the United States to Grigaitis, Robertas G.,

Mindaugas M., and Valdas S.

(Emphasis added.) While Christ argues that this

language, and particularly the emphasized

phrase, establishes that the charged conspiracy

consisted only of the conduct surrounding the

issuance of visas to the four co-conspirators, we

find that his interpretation relies on an overly

narrow reading of this paragraph resulting from

its being taken out of context. By alleging that

part of Christ’s role in the conspiracy was to

procure visas for the four co-conspirators in

exchange for a motorcycle, the government in no

way limited the charged conspiracy to that con-

duct.

That the charges are broader than Christ

argues is plainly seen when the Indictment is

considered in its entirety. First, paragraph 3 of

the Indictment charged that Christ engaged in a

conspiracy that continued “to at least February

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

second two of the co-conspirator visas issued, and

such issuance occurred in March 2000. The fam-

ily applications, however, were submitted with

Christ’s referrals on February 8, 2001, making

clear that the government intended to include

that conduct in the charges set forth in the

Indictment. Next. the Indictment charged that

Christ ar.d the four co-conspirators entered into

an agreement and engaged in conduct to “use,

obtain, and recwive ... non-immigrant visas,

knowing them to have been procured by means of

12a

materially false claims and statements.” This

language does not limit the agreement and con-

duct of Christ and his co-conspirators to the pro-

curement of the co-conspirators’ visas, but

alleges generally that they were acting to obtain

visas by fraudulent means. In fact, when the

Indictment listed the overt acts undertaken in

furtherance of the conspiracy, no less than five

paragraphs were devoted to setting forth the con-

duct surrounding the family applications. The

district court did not need to resort to an “intri-

cately related” analysis because, as the govern-

ment argued to the district court before trial,

“(njothing could be more intricately related and

intertwined than an allegation that is brought as

a charge by the government.” See United States

v. Elizondo, 920 F.2d 1308, 1319 (7th Cir. 1990)

(notir.g that “[e]vidence of overt acts which

occurred after a cospiracy was formed and

which were related to the object of the conspiracy

is admissible regardless of whether [they] are

charged in the indictment.”). Here, Christ’s con-

duct regarding the family visas was charged in

the Indictment. Based on these circumstances,

we conclude that the district court did not abuse

its discretion in admitting evidence of the family

visa applications.

Christ next argues that the district court

abused its discretion in admitting over his

hearsay objection the applications of Aivarus and

Stauga, which contained handwritten notations

indicating that the applicants were “Referred by

Matt Christ.” Visa Assistant Ruta Kundrotiene

testified that these notations were made by For-

eign Service Officer and then Chief of the Con-

13a

sular Section, Linda Eichblatt. Unlike the appli-

cations of Robertas’s family, which contained

similar notations but were presented at trial

with attached referral forms executed by Christ,

Aivaras’s and Stauga’s applications had no

accompanying documentation verifying Christ’s

referrals. This absence, argues Christ, makes the

reference notation inherently unreliable because

there was no evidence establishing whether, or

how, Eichblatt received that information. The

government argues that the documents were

properly admitted as business records because

they were authenticated by Kundrotiene. Specif-

ically, the government relies on Kundrotiene’s

testimony that she recognized Eichblatt’s hand-

writing, that in the normal course of business

Eichblatt recorded referrals on the application

contemporaneous with her review of the same,

and that it was the normal course of business at

the Embassy to discard a referral once noted. As

with the family application evidence, we review

the district court’s admission of the applications

for abuse of discretion. Hale, 448 F.3d at 985.

While the admission of business records as an

exception to the hearsay rule is well established,

see Fed. R. Evid. 803(6), “statements made by

third parties in an otherwise admissible business

record cannot properly be admitted for their

truth unless they can be shown independently to

fall within a recognized hearsay exception.”

Woods v. City of Chicago, 234 F.3d 979, 986 (7th

Cir. 2000). Accordingly, the referral notations on

Aivaras’s and Stauga’s applications must have

their own independent grounds for admissibility.

The parties agree that the district court admitted

l4a

the notations pursuant to the business records

exception, which requires the government to “lay

a proper foundation establishing that the docu-

ments produced were records kept in the course

of regularly-conducted activity and that ‘it was

the regular practice of that business to make [the

document] as shown by the testimony of the cus-

todian or other qualified witness.’” United States

v. Lawrence, 934 F.2d 868, 870 (7th Cir. 1991)

(quoting Fed. R. Civ. P. 803(6) (emphasis

added)). This exception, therefore, “clearly does

not require that the witness have personal

knowledge of the entries in the records. The wit-

ness need only have knowledge of the procedures

under which the records were created.” United

States v. Wables, 731 F.2d 440, 449 (7th Cir.

1984).

Kundrotiene testificd that as a Visa Assistant,

she received applications, entered the informa-

tion contained therein into the Embassy’s data

system, and then passed the applications on for

adjudication. Once an officer such as Eichblatt

received the application for processing, Kundro-

tiene testified that the presence of any referral

was noted on the application, and the referral

was then discarded. Kundrotiene stated that an

accompanying referral, signed by a qualified offi-

cer, was the only reason such a notation was

made, and that it was against policy for an offi-

cer to make this notation without the requisite

referral. Kundrotiene stated she had no specific

memory of the notations being made on Aivaras’s

and Stauga’s applications. However, she stated

she was confident testifying to the process by

which such notations were made because of what

15a

she knew Embassy policy to be, and because she

worked in close physical proximity to Eichblatt,

which allowed Kundrotiene to observe her prac-

tices. Finally, Kundrotiene testified that she was

able to identify the handwritten notations as

being made by Eichblatt because she recognized

Eichblatt’s handwriting. In addition to Kundro-

tiene’s testimony, the government presented the

three applications of Robertas’s family members.

These applications, which were introduced with

the referrals signed by Christ, had notations sim-

ilar to those on Aivaras’s and Stauga’s applica-

tions, even though the latter were introduced at

trial without signed referrals. This evidence,

taken as a whole, provided the district court with

sufficient grounds upon which to find that Kun-

drotiene exhibited knowledge of the practices and

procedures that resulted in the referral notations

being made on Aivaras’s and Stauga’s applica-

tions. Kundrotiene laid the foundation estab-

lishing the reliability of the notations, and that

reliability was confirmed by similar notations

present on the applications of Robertas’s family.

Accordingly, we conclude that the district court

did not abuse its discretion in admitting the

applications of Aivaras and Stauga in their

entirety.

Having concluded that the district court did

not err by admitting the evidence above, we turn

to Christ’s argument that the government pre-

sented insufficient evidence to support his con-

viction, and that the district court should have

granted him a judgment of acquittal. We review

the district court’s decision denying a judgment

of acquittal de novo. United States v. Jones, 222

16a

F.3d 349, 351 (7th Cir. 2000) (citation omitted).

When considering a challenge of this sort, we

“defer to the credibility determinations made by

the jury, and reverse only when no rational trier

of fact could find the essential elements of the

crime beyond a reasonable doubt.” United States

v. Dumeisi, 424 F.3d 566, 581 (7th Cir. 2005). In

asserting insufficiency of the evidence, Christ

“carries a heavy burden” because “[wle view the

evidence in the light most favorable to the pros-

ecution.” United States v. Leahy, 464 F.3d 773,

794 (7th Cir. 2006) (citation omitted). Christ was

convicted of committing visa fraud in violation of

18 U.S.C. §§ 371 and 1546. Accordingly, we con-

sider whether the government presented suffi-

cient evidence that he conspired to obtain

non-immigrant visas, acting willfully, and with

knowledge that the visas were obtained by a false

statement, or otherwise procured by fraud. When

proof of a conspiracy is being considered, the gov-

ernment need not have shown evidence of a for-

mal agreement. United States v. Carraway, 108

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

dence must show both the existence of the con-

spiracy and that the defendant knowingly

participated in it.” United States v. Hightower,

96 F.3d 211, 214 (7th Cir. 1996) (citation omit-

ted).

We conclude that the government presented

evidence sufficient for a rational jury to find

beyond a reasonable doubt that Christ engaged

in a conspiracy to commit visa fraud. First, the

Grigaitis brothers testified that Christ told them

to complete the applications by stating that the

purpose of visiting the United States was

17a

tourism. The jury heard testimony, however, that

the men intended to find work upon their arrival.

Christ argues that this evidence does not show

intent on his part to commit visa fraud because

there was no evidence showing that he knew his

advice to be untrue. While that may be the case,

there also was no evidence showing that Christ

had any reason to think that the co-conspirators

were, in fact, traveling to the United States for

tourism. Testimony that Christ provided any rea-

son to the Grigaitis brothers, especially when the

evidence showed that he had a relatively unfa-

miliar relationship with them, was circumstan-

tial evidence that Christ conspired to submit

false statements in an attempt to procure visas.

Next, Aivaras testified that he filled out an

application for himself, for Masiliunas, and for

Stauga in Christ’s presence. The evidence showed

that Christ then adjudicated or submitted refer-

rals on those applications. There was no evidence

suggesting that Masiliunas or Stauga filled out

their own applications. The strongest attack the

defense mounted against Aivaras’s testimony on

this point was when defense counsel argued dur-

ing closing that, based upon his observation, the

applications were not written by the same per-

son. While counsel invited the jury to draw the

same conclusion, we view all of the evidence in

the light most favorable to the government,

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

rational jury could have accepted Aivaras’s tes-

timony that Christ submitted the three applica-

tions knowing them to have been completed by

the same person. A reasonable inference drawn

from this evidence is that Christ was working

18a

with his co-conspirators to procure visas by

fraud. See Carraway, 108 F.3d at 750 (holding

that a “jury properly may find an agreement to

conspire based upon circumstantial evidence and

reasonable inferences drawn therefrom concern-

ing the relationship of the parties, their overt

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

The jury also heard evidence that Christ sub-

mitted referrals with the applications of Rober-

tas’s family members stating that they were well

and favorably known to him, and that expedi-

tious processing of their applications was in the

United States’ national interest. As noted above,

however, Robertas testified that Christ had never

met any of his family members. Accordingly, evi-

dence that Christ submitted referrals on their

behalf amounted to strong evidence supporting

the jury’s finding regarding his guilt. Addition-

ally, the testimony and evidence at trial consis-

tently affirmed that referrals were to be

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

enhance diplomatic relations, such as govern-

ment officials, businessmen, and scientists.

Christ, however, submitted referrals on behalf of

Robertas’s family, Stauga, and Aivaras. With the

exception of Aivaras, Christ had not met any of

these people, and there was no indication that

any of them fit the description of a suitable refer-

ral recipient. This deviation from the referral

policy provided the jury with additional evidence

that Christ was involved in a conspiracy to pro-

cure visas by fraudulent means.

Although all of the evidence set forth above

provided a basis from which the jury could find

that the government met its burden in proving

19a

Christ’s guilt beyond a reasonable doubt, Christ

argues that his acquittal on the bribery charge

served to undercut this proof to such a degree

that it could not sustain his conviction. The con-

viction for visa fraud combined with the acquit-

tal on bribery,: Christ asserts, amounts to a

finding that he engaged in the conspiracy, and

used his hard-earned position of influence at an

American Embassy, for no return benefit to him-

self. While holding a certain practical appeal by

calling into question Christ’s motive, this argu-

ment is of little legal import. There is no require-

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

the government prove that Christ received any-

thing of value in exchange for his participation in

the conspiracy. See, e.g., United States v. Soy,

545 F.3d 766, 768 (7th Cir. 2006). The jury was

free to weigh any lack of motive when it consid-

ered whether Christ engaged in visa fraud. Even

though they did not believe that Christ received

the second motorcycle as a bribe, the jury mem-

bers were satisfied that the substantial evidence

presented by the government established his

guilt for conspiracy to commit visa fraud, and we

will “neither reweigh the evidence nor substitute

our judgment of the facts for that of the

factfinder.” United States v. LaShay, 417 F.3d

715, 718 (7th Cir. 2005) (citation omitted). Fur-

thermore, contrary to Christ’s assertion, there

was evidence in the record that could have

answered the question of why Christ engaged in

the criminal conduct for which he was convicted.

It is undisputed, for example, that Christ was a

collector of antique motorcycles. Perhaps he

viewed the visa scheme as a means of developing

20a

relationships with people who consistently dealt

with such motorcycles. Additionally, there was

testimony that fraud was widespread at the

Embassy in Vilnius. Perhaps the volume of

fraudulent applications convinced Christ that he

could cultivate these relationships by adjudi-

cating fraudulent applications and submitting

fraudulent referrals with a reduced risk of detec-

tion. While the jury members themselves may

have been unsure as to why Christ engaged in

this conduct, questions regarding motive likely

became less and less important as the evidence

mounted that Christ engaged in this conduct.

Accordingly, we are confident that the evidence

presented was sufficient to support the jury's

verdict beyond a reasonable doubt and conclude

that the conviction was supported by sufficient

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

In addition to the issues already considered,

Christ argues that he was entitled to a missing

witness jury instruction because the government

failed to call Eichblatt and another Foreign Ser-

vice Officer, Sean Wiswesser, as witnesses at

trial. Eichblatt formulated the Embassy’s refer-

ral policies, and both Eichblatt and Wiswesser

had knowledge of those policies. Additionally,

Eichblatt adjudicated Aivaras’s and Stauga’s

applications, and Wiswesser approved the

issuance of visas for Robertas’s family. Christ

asserts, as he did at trial, that the testimony of

Eichblatt and Wiswesser would have illuminated

for the jury not only the referral procedure in

place at the Vilnius Embassy, but also the suffi-

ciency of the specific referrals upon which these

officers relied in approving the applications in

21a

question. In denying Christ’s request for a miss-

ing witness instruction, the district court found

that ample testimony regarding the Embassy’s

referral policies had been presented, and that

Eichblatt and Wiswesser were available for

Christ to call as witnesses if he so chose. For a

missing witness instruction to be given, a defen-

dant must show (1) that the absent witness was

peculiarly within the government’s power to pro-

duce, and (2) that the testimony of the witness

would elucidate issues in the case without being

cumulative in nature. United States v. Rome, 914

F.2d 889, 893 (7th Cir. 1990). A witness is pecu-

liarly within the government’s power to produce

when the witness is physically available only to

the government, or where the witness’s rela-

tionship with the government makes his testi-

mony, in pragmatic terms, available only to the

government. /d. at 893-894. The district court

has broad discretion in deciding whether to give

a missing witness instruction, United States v.

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

will disturb that decision only where serious

error has occurred. United States v. Addo, 989

F2d 238, 242 (7th Cir. 1993).

Regarding the unavailability of Eichblatt and

Wiswesser, Christ argued that their employment

with the State Department made them prag-

matically unavailable to the defense. Employ-

ment by a party has been found to be a basis for

pragmatic unavailability because “there is like-

lihood of bias on the part of the person not called

as a witness in favor of one party....” Yumich uv.

Cotter, 452 F.2d 59, 64 (7th Cir. 1971). In

Yumich, this court concluded that the district

22a

court erred in not giving a missing witness

instruction where the municipal defendant called

only five of fifteen to twenty police officers who

witnessed an altercation between officers and the

plaintiff. While the district court found that the

officers were equally available to all parties, we

held that the officers’ employment with the city,

as well as their “strong personal interest in the

success of the city’s defense of their conduct on

the occasion in question,” rendered them unavail-

able to the plaintiff. Jd.; see also United States v.

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

(holding that an officer who was involved in the

arrest initiating the case was pragmatically

unavailable to the plaintiff because of his asso-

ciation with the United States in building its

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

work vindicated by a conviction of the defen-

dant”).

Christ conceded during the charge conference

that he never asked the government to produce

Eichblatt and Wiswesser. Christ’s failure to

interview the witnesses, or even ask the govern-

ment to produce them, leaves him at a disad-

vantage in arguing that their testimony would

have exhibited bias rendering them pragmat.-

cally unavailable to him. See United States uv.

Montoya, 676 F.2d 428, 431 (10th Cir. 1982)

(holding that the district court did not abuse its

discretion in deciding that a witness was equally

available to both sides where the defendant had

not followed up on attempts to contact the wit-

ness, and had not asked for the government's

help in locating him). This disadvantage notwith-

standing, Christ attempts to liken Eichblatt and

23a

Wiswesser to the witnesses in Yumin and

Mahone, relying on their employment with the

State Department and arguing that they would

suffer professional and reputational damage if

Christ was acquitted. The case before us, how-

ever, is easily distinguishable from Yumin and

Mahone because Eichblatt and Wiswesser did not

have the personal stake in Christ’s conviction

that arises when an officer’s own conduct is the

subject of the suit, or where official conduct in

making an arrest is an issue upon which a con-

viction hinges. Put another way, we fail to see

how Eichblatt or Wiswesser was vindicated by

Christ’s conviction. Likewise, we fail to see how

they would have been implicated in any way by

Christ’s acquittal simply because they had

knowledge of, or even participated in the forma-

tion of, the Embassy’s referral policy or relied on

referrals submitted by Christ. Accordingly, we

conclude that the district court did not err in

finding that Eichblatt and Wiswesser were avail-

able to Christ.

While this is sufficient to affirm the district

court for declining to give a missing witness

instruction, we further conclude that the district

court correctly decided that any testimony Ejich-

blatt and Wiswesser could have offered on the

referral policy, to the extent it was relevant,

would have been redundant. The referral policy

was testified to by Kundrotiene and Karen Chris-

tensen, the latter a division chief with the

Bureau of Consular Affairs at the State Depart-

ment. Additionally, the government introduced a

State Department memo outlining referral poli-

cies, and particularly the stature of the individ-

4

'

- re

24a

uals to whom referrals should be given. However,

confirmation that the relevant aspects of the

referral policy had been fully presented came

from statements attributed to Christ himself,

and testified to by Diplomatic Security Service

Agent Christopher McCormack. McCormack was

assigned to investigate allegations of fraud at the

Vilnius Embassy, and in the course of that inves-

tigation, he interviewed Christ. During that

interview, Christ gave a description of the refer-

ral policy which included the preferred stature of

individuals who receive referrals, how well

known the applicant should be to the referring

officer, and the benefits afforded to an applicant

wno receives a referral. Christ’s description

matched up in all material respects with the

other evidence the government presented at trial.

Upon considering the evidence presented at trial

as a whole, we agree with the district court that

there was nothing to be gained by yet more tes-

timony regarding the referral policies. See

Mahone, 537 F.2d at 927 (“In cases ... where it is

debatable whether the absent witness’ testimony

would have elucidated the issues in the case,

there should be latitude for the judge to decide

whether the requested instruction would be

unnecessary and time consuming for the jury.”).

Having determined that the district court did not

err in making its findings on either factor of the

relevant analysis, we conclude that it did not

abuse its discretion in declining to give the

requested missing witness instruction.

Christ’s remaining challenges on appeal can be

resolved based on our findings above. First, after

the government's direct examination of Roland

25a

Slabon during which he testified about Christ’s

inquiries regarding certain motorcycles and their

costs, Christ elicited testimony favorable to his

defense during cross-examination. Specifically,

Slabon’s testimony called into question whether

Christ knew the value of the motorcycle he

allegedly received as a bribe when conspiring to

commit visa fraud. On re-direct, the government

questioned Slabon regarding a subpoenz and a

check for $975.00 he received from Christ. Christ

objected on relevancy grounds, arguing that it

was improper to use this payment to raise the

specter of bias because it had been paid to Slabon

as required by Federal Rule of Criminal Proce-

dure 17.” The district court overruled Christ's

objection, and allowed the government to make

the inquiry. We review such evidentiary rulings

for abuse of discretion, and will only disturb the

decision of the district court where it had a sub-

stantial influence over the jury. United States v.

Hernandez-Rivas, 348 F.3d 595, 600 (7th Cir.

2003). When considering the influence any erro-

neously admitted testimony had over the jury, we

weigh “(1) the importance of the witness's testi-

mony in the prosecution’s case; (2) whether the

testimony was cumulative; (3) whether other evi-

dence corroborated or contradicted the witness’s

material testimony; and (4) the overall strength

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

To the extent that the government’s questioning

o

. “A marshal, deputy marshal, or any nonparty who is

at least 18 years old may serve a subpoena. The server must

deliver a copy of the subpoena to the witness and must ten-

der to the witness one day’s witness-attendance fee and the

legal mileage allowance.” Fed. R. Crim. P. 17(d)

26a

prejudiced Christ at all, it prejudiced him on the

question of whether he accepted the secon”

motorcycle as a bribe. Christ was acquitted of

that charge, however, and we therefore fail to see

how any prejudice resulted from the questioning.

Moreover, the bribery charge has no effect on the

issues before us because, as we concluded above,

the government presented such substantial evi-

dence of Christ’s guilt regarding the vis” fraud

charge that it withstands even acquittal on the

bribery charge. Because of the strength of the

government's case on the visa fraud charge, the

minimal importance of the challenged testimony

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

of any prejudice to Christ, we find that any error

the district court committed in allowing said tes-

timony was harmless.

Next, Christ argues that the district court

erred in denying his motion for a new trial based

upon the insufficiency of the evidence, the court’s

evidentiary rulings, and its failure to give the

jury a missing witness instruction. A district

court may vacate a judgment and grant a new

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

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

abuse of discretion. United States v. Hendrix, 482

F.3d 962, 967 (7th Cir. 2007). As set forth above,

there was more than sufficient evidence to sup-

port Christ’s conviction for conspiracy to commit

visa fraud, and the district court did not commit

error in making the challenged evidentiary rul-

ings, nor in instructing the jury. That being that

case, there is no basis from which Christ can

argue that the interests of justice require that he

be afforded a new trial. Accordingly, we find that

27a

the district court did not abuse its discretion in

denying Christ’s motion for a new trial.

Finally, Christ argues that his sentence was

unreasonable because the district court imposed

an enhancement based on its unsupported find-

ing that Christ’s crime involved more than six

visas. United States Sentencing Guidelines

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

for the visa fraud crime of which Christ was con-

victed. The district court found that Christ’s

abuse of a position of public trust warranted a

two-level enhancement pursuant to U.S.S.G.

§ 3B1.3, and Christ does not challenge this find-

ing. The parties are therefore in agreement that

Christ had an offense level of at least 13. Their

dispute, however, centers on a second enhance-

ment the district court applied pursuant to

U.S.S.G. $ 2L2.1(b)(2)(A), which allows a three-

level increase when a defendant’s crime involved

between six and twenty-four documents. An

offense level of 13, when combined with Christ’s

lack of any prior criminal convictions, carries

with it ar advisory guideline range of twelve to

eighteen months. An offense level of 16, however,

carries with it an advisory guideline range of

twenty-one to twenty-seven months. After finding

that Christ’s crime involved six or more visas,

and that 21e therefore had an offense level of 16.

the district court sentenced Christ to twenty-four

months in prison. While our review of a district

court’s interpretation of the Guidelines is de

novo, we review the factual findings made in

applying the Guidelines for clear error and will

reverse oily if we are “left with the definite and

firm conviction that a mistake has been com-

28a

mitted.” United States v. Johnson, 227 F.3d 807,

812-13 (7th Cir. 2000) (internal quotations and

citations omitted).

The parties do not dispute that the visas of the

coconspirators are attributable to Christ, but

Christ argues that there was no basis upon which

the district court could attribute more than those

four visas to him. However, we found above that

the family application evidence was not only

admissible at trial, but that it amounted to evi-

dence of conduct undertaken in furtherance of

the charged conspiracy. Such evidence certainly

qualifies as relevant conduct under the Guide-

lines, which directs consideration of “all acts..

committed, ... counseled, commanded, induced,

procured or willfully caused by the defendant

.... that occurred during the commission of the

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

While there was no special verdict form allowing

us to determine the jury’s specific finding regard-

ing the family application evidence, we see no

clear error in the district court’s finding by a pre-

ponderance of the evidence that Christ’s crime

involved the family’s visa applications. See

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

Cir. 2006) (noting that even conduct underlying

an acquitted charge may be considered as rele-

vant conduct as long as it is proved by a prepon-

derance of the evidence). The parties also dispute

the district court’s inclusion of visas other than

those of the co-conspirators and Robertas’s

family, but we need not resolve that dispute

because there is no contention that their inclu-

sion would establish that Christ’s crime involved

more than twenty-four visas, thereby allowing

29a

application of a six-level enhancement. See

U.S.8.G. § 2L2.1(b)(2)(B). Because the district

court was presented with sufficient evidence at

trial to support its finding at sentencing that

Christ’s crime involved between six and twenty-

four visas, we conclude that it correctly applied a

three-level enhancement pursuant to U.S.S.G.

§ 2L2.1(b)(2)(A) and that the sentence imposed

was reasonable.

ITI.

We conclude that the prosecution presented

sufficient evidence to support Christ’s conviction

beyond a reasonable doubt. We further conclude

that the district court’s rulings regarding the

admissibility of the challenged evidence were not

in error and that there was no abuse of discretion

by the district court in declining to give a miss-

ing witness instruction. Based upon those find-

ings, it is clear that Christ was not entitled toa

new trial, and the district court did not abuse its

discretion in denying his request for one. Finally,

because there was a sufficient basis upon which

the district court could properly apply the chal-

lenged sentencing enhancement, we conclude

chat Christ’s sentence was not unreasonable.

Accordingly, we AFFIRM both Christ’s conviction

and sentence.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

30a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 03 CR 1093

Judge John W. Darrah

UNITED STATES OF AMERICA

MATTHEW CHRIST

MEMORANDUM OPINION AND ORDER

Defendant, Matthew Christ, was convicted,

after a jury trial, of conspiring to commit visa

fraud, 18 U.S.C. § 371, Count I of the Fourth

Superseding indictment, Defendant was acquit-

ted of bribery, 18 U.S.C. § 210(b)(2)(A), (13), and

(C), Count II of the Fourth Superseding Indict-

ment. Presently before the Court are Defendant’s

Motion for Judgment of Acquittal, Motion for a

New Trial, and Motion for an Arrest of Judg-

ment.

3la

Defendant moves for a judgment of acquittal,

arguing that the Government failed to prove his

guilt beyond a reasonable doubt.

A motion for judgment of acquittal should only

be granted if there is insufficient evidence to sus-

tain the conviction. See United States v. O'Hara,

301 F.3d 563, 569 (7th Cir. 2002) (O’Hara). The

evidence is viewed in the light most favorable to

the prosecution, and a conviction will only be

overturned if the record contains no evidence on

which a rational jury could have returned a

guilty verdict. See O’Hara, 301 F.3d at 569-70.

The court does not re-weigh the evidence or judge

the credibility of the witnesses. See United States

v. Galati, 230 F.3d 254, 258 (7th Cir. 2000)

(Galati).

Defendant argues that the Government failed

to prove the conspiracy charge, specifically, an

agreement to commit the charged conspiracy.

To prove a violation of Section 271, the Gov-

ernment must establish: (1) an agreement to

commit an offense against the United States, (2)

an overt act in furtherance of the conspiracy, and

(3) knowledge of the conspiratorial purpose. See

United States v. Soy, 454 F.3d 766, 768 (7th Cir.

2006) (Soy). On a charge of conspiracy to violate

a federal statute, the Government must establish

the degree of criminal intent necessary for the

substantive offense. See Soy, 454 F.3d at 768.

However, the overt act necessary for the con-

spiracy conviction does not need to be the under-

lying substantive crime or an element of that

crime. See Soy, 454 F.3d at 768.

Defendant argues that the Government failed

to prove part of the alleged conspiracy, specifi-

32a

cally, that Defendant conspired with Aivaras

Grigaitis (“Aivaras”), Robertas Grigaitis (“Rober-

tas”), Mindaugas Masiliunas (“Mindaugas”), and

Valdas Stauga (“Stauga”); and these co-conspir-

ators agreed to provide Defendant with a vintage

motorcycle to cause Defendant to cause the

issuance of non-immigrant visas through immi-

gration and identification document fraud. While

the Fourth Superseding Indictment does allege

that the co-conspirators agreed to provide Defen-

dant with a vintage motorcycle, the Fourth

Superseding Indictment also charges Defendant

with conspiring with the above-named individu-

als to use, obtain, and receive non-immigrant

visas, knowing them to be procured by means of

false claims and statements in violation of 18

U.S.C. § 1546. Thus, the Government has pled

and could establish the first element of the con-

Spiracy charge, an agreement to commit an

offense against the United States, by proving

that the Defendant and the above co-conspirators

agreed to use, obtain, and receive non-immigrant

visas, knowing them to be procured by means by

means of false claims and statements in violation

of 18 U.S.C. § 1546. The Government need not

prove that the co-conspirators agreed to provide

Defendant with a vintage motorcycle to establish

an agreement to commit an offense against the

United States.

Furthermore, there was sufficient evidence for

the jury to find that Defendant conspired to com-

mit visa fraud.

The evidence at trial included testimony that

Defendant (a Foreign Service Officer in Vilnius,

Lithuania) met with Aivaras and Robertas at

33a

Aivaras’s workplace in Lithuania to complete the

visa applications for Robertas and Mindaugas.

Defendant brought blank visa applications with

him to the meeting and assisted in the comple-

tion of the visa applications. At Defendant’s

direction, Aivaras and Robertas reported false

information on the visa applications. Defendant

took the visa applications and other required doc-

umentation from the meeting and, as promised,

later returned to Aivaras’s workplace with Rober-

tas’s and Mindaugas’s passports, including

United States visas. Robertas’s and Mindaugas’s

visa applications were adjudicated by Defendant.

A few weeks later, Defendant again went to

Aivaras’s workplace with blank visa applications.

At Defendant’s direction, visa applications that

contained false information were completed for

Aivaras and Stauga. Defendant took the visa

applications and other required documentation,

from the meeting and, as promised, later

returned to Aivaras’s workplace with Aivaras’s

and Stauga’s passports, including United States

visas. The visa applications, the Department of

State records, and other evidence proved that

Aivaras’s and Stauga’s visas were approved

based upon referrals from Defendant where

Defendant personally vouched for Aivaras and

Stauga and submitted that their travel was in

the national interest of the United States. In

2000, Robertas, Mindaugas, Aivaras, and Stauga

used their visas to enter the United States.

Defendant disputes much of the above evi-

dence, arguing that the evidence “came in the

form of highly biased and inconsistent testimony”

of Aivaras. In essence, Defendant argues that

34a

Aivaras’s testimony was not credible because his

testimony was highly biased in light of his plea

agreement with the Government and because his

testimony was not believable due to inconsis-

tencies in his explanation of the events during

the investigation and at trial. However, the facts

pertaining to Aivaras’s plea agreement and

inconsistencies in his explanation of the events

during the investigation and the trial were fully

developed and presented to the jury at trial.

Defendant impermissibly seeks to have the Court

re-weigh the evidence and/or judge the credibil-

ity of the witnesses. See Galati, 230 F.3d at 258.

Based on the evidence at trial, a rational trier

of fact could have found that Defendant had an

agreement to commit an offense against the

United States, specifically, a violation of 18

U.S.C. § 1546; engaged in an overt act in fur-

therance of the conspiracy; and had knowledge of

the conspiratorial purpose. Accordingly, Defen-

dant’s Motion for Judgment of Acquittal is

denied.

Defendant also moves for a new trial, arguing

that the admission of certain evidence and the

exclusion of certain evidence and a jury instruc-

tion deprived Defendant of a fair trial. Specifi-

cally, Defendant argues that evidence related to

Defendant’s attempts to procure visas for Rober-

tas’s wife and children was improperly admitted,

the admission of Lithuanian newspaper adver-

tisements was improperly denied, the Govern-

ment improperly questioned an expert witness

regarding witness fees, the admission of visa

applications constituted hearsay and violated

Defendant's constitutional rights, and the Court

35a

improperly denied a missing-witness jury

instruction.

A court may grant a motion for a new trial “if

the interests of justice so require.” See Fed. R.

Crim. P. 33. The decision to grant such a motion

is within the sound discretion of the trial court.

See United States v. Reed, 875 F.2d 107, 113 (7th

Cir. 1989) (Reed). A new trial is in the interest of

justice where “the substantial rights of the defen-

dant have been jeopardized by errors or omis-

sions during trial.” United States v. Kuziar, 881

F.2d 466, 470 (7th Cir. 1989). In making this

analysis, the court may not re-weigh the evidence

and set aside a verdict because the court feels

that some other result would be more reasonable.

“the evidence must preponderate heavily against

a verdict, such that it would be a miscarriage of

justice to let the verdict stand.” Such motions are

granted “sparingly and with caution, doing so

only in those really ‘exceptional cases.” Reed,

875 F.3d at 113, quoting United States v. Mar-

tinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985).

All of the grounds Defendant asserts in support

of his Motion for a New Trial were fully argued

by the parties and considered, addressed, and

ruled upon by the Court at the time of trial;

these rulings have not been shown to be erro-

neous. Accordingly, Defendant’s Motion for a

New Trial is denied.

Defendant also summarily moves for an arrest

of judgment, “for the same reasons described

elsewhere and in the arguments and objections

made prior to verdict.” Federal Rule of Criminal

Procedure 34 provides that an arrest of judgment

is to be granted if the indictment does not charge

36a

an offense or if the court does not have jurisdic-

tion of the charged offense. Defendant’s unsup-

ported conclusory statement is insufficient to

grant a motion pursuant to Rule 34. See United

States v. Wimberly, 60 F.3d 281, 287 (7th Cir.

1995) (perfunctory and undeveloped arguments

unsupported by pertinent authority are waived).

Accordingly, Defendant’s Motion for an Arrest of

Judgment is denied.

For the foregoing reasons, Defendant’s Motion

for Judgment of Acquittal, Motion for a New

Trial, and Motion for an Arrest of Judgment are

denied.

Dated: 2-21-07

/si_ John W. Darrah

JOHN W. DARRAH

United States District Court Judge

37a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

No. 03 CR 1093 - 9

October 23, 2006

Judge John W. Darrah

vs.

CHRIST

Defendant’s Motion in Limine is denied and the

Government’s Motion in Limine to Admit

Evidence as Intricately Related to the Charged

offense is granted.

STATEMENT

Defendant, Matthew Christ, is charged with

conspiracy, 18 U.S.C. § 371, bribery, 18 U.S.C.

§ 201(b)(2)(A), (B), (C), and visa fraud, 18 U.S.C.

§ 1546), in relation to alleged bribes he received

in exchange for issuing visas dursing his tenure

38a

as a Foreign Service Officer in Vilnius, Lithua-

nia. The Fourth Superceding Indictment, alleges,

in relevant part, that Defendant accepted

antique BMW motorcycles in exchange ior fraud-

ulently providing visas to four individuals,

including Aivaras Grigaitis and his brother,

Roberta Grigaitis. Included in the allegations is

Defendant’s attempt to assist Roberta Grigaitis’s

wife and two children in receiving visas to the

United States. Defendant seeks to preclude tes-

timony relating to Roberta Grigaiti’s family

members attempt to receive visas with Defen-

dant’s assistance. The Government seeks to

introduce the testimony as intricately related to

the charged criminal conduct.

Evidence that is “so blended or connected that

it incidentally involves, explains the circum-

stances surrounding, or tends to prove any ele-

ment of, the charged crime” is excluded from

Federal Rule of Evidence 404(b)’s prohibition

against other acts evidence admitted to show

“action in conformity therewith” and may be

admitted at trial if such evidence is admissible

under the balancing test of Rule 403. See United

States v. Owens, 424 F.3d 649, 655 (7th Cir.

2005; United States v. Thompson, 286 F.3d 950,

968 (7th Cir. 2002) (Thompson). lf the evidence is

“intricately related”, “connected”, or “inter-

twined” in this manner, the court does not abuse

its discretion by admitting such evidence. See

Thompson, 286 F.3d at 968. Acts satisfy the inex-

tricably intertwined doctrine if they complete the

story of the crime, if their absence would create

a chronological or conceptual void in the story of

the crime, or if they are so blended or connected

39a

that they incidentally involve or explain the cir-

cumstances surrounding or tend to prove any ele-

ment of the crime charged. See United States v.

Gibson, 170 F.3d 673, 681 (7th Cir. 1999), quot-

ing United States v. Ramirez, 45 F.3d 1096, 1102

(7th Cir. 1995).

The challenged evidence is intricately inter-

twined with the evidence that explains the cir-

cumstances surrounding, or tends to prove, the

crimes Defendant is charged with. The disputed

evidence arises out of the same transactions as

those charged and place the charged offenses in

context. Furthermore, as charged in the Super-

ceding Indictment and as set forth in the Gov-

ernment’s Santiago proffer, the conversations

between Defendant and the Grigaitis about

Defendant obtaining visas for Robertas’s wife

and children were in furtherance of the charged

conspiracy to illegally obtain visas.

Nor is the introduction of the disputed evidence

prohibited under Federal Rule of Evidence 403,

which excludes evidence if its probative value is

substantially outweighed by the danger of unfair

prejudice. While Defendant makes a general

statement that the prejudicial effect of intro-

duction of the disputed evidence would outweigh

its probative value, Defendant has not demon-

strated such prejudicial effect Furthermore,

Defendant may propose a proper limiting instruc-

tion to insure that the disputed evidence is prop-

erly considered by the jury. See United States v.

Miller, 573 F.2d 388, 392-93 (7th Cir. 1978) (evi-

dence of past financial statements admitted

under Rule 404(b) and any prejudicial effect was

reduced by limiting instruction).

40a

Based on the above, Defendant’s Motion in

Limine is denied and the Government's Motion in

Limine to Admit Evidence as Intricately Related

to the Charged offense is granted.

/s/ JOHN W. DARRAH 10/23/06

John W. Darrah, Judge

4la

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

No. 03 CR 1093

April 24, 2008

John W. Darrah, Judge.

No. 07-1634

United States of America,

Plaintiff-Appellee,

Matthew Christ,

Defendant-Appellant.

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division

42a

Before

Daniel A. Manion, Circuit Judge

Terence T. Evans, Circuit Judge

Diane S. Sykes, Circuit Judge

ORDER

On consideration of the petition for rehearing

filed by appellant, all of the judges on the origi-

nal panel have voted to deny rehearing. The peti-

tion is therefore DENIED.