CHICAGO (CN) – A starkly divided 7th Circuit decided not rehear arguments that an instruction about government investigation techniques improperly prejudiced a jury in a drug conspiracy case, voting to leave the conviction intact.
Ondray McKnight was indicted along with six codefendants in a drug distribution network operated by the Gangster Disciples in Chicago’s south side.
During a four-year investigation, Chicago police used informants, undercover officers, controlled buys, surveillance, and wiretapping. When the investigation ended in 2007, the grand jury returned a thirty-count indictment that included charges of conspiracy, narcotics distribution, using telephones in furtherance of the conspiracy, and weapons offenses.
Though McKnight’s codefendants accepted plea agreements, he pleaded not guilty and proceeded to trial. McKnight was convicted by a jury and sentenced to twenty-five years in prison, followed by ten years of supervised release.
He appealed the conviction, arguing, among other things, that U.S. District Judge Rebecca Pallmeyer had given unnecessary and prejudicial jury instructions at the request of the prosecution.
Fearing that members of the jury would vote to acquit McKnight even if they were convinced of his guilt because they thought the government’ s investigative techniques illegal or improper, the prosecution filed a motion in limine to prevent the defense from challenging the techniques at trial. Pallmeyer granted the motion and the defense “scrupulously obeyed” the order.
But at the instructions conference, the prosecution asked for a special jury instruction to be read: “sometimes the government uses undercover agents and undercover informants who may conceal their true identities in order to investigate suspected violations of law. In the effort to detect violations of the law, it is sometimes necessary for the government to use ruses, subterfuges and employ investigative techniques that deceive. It is not improper or illegal for the government to use these techniques, which are a permissible and recognized means of criminal investigation; Whether or not you approve of such techniques, should not enter into your deliberations.”
Over the defense’s objection, Pallmeyer accepted the instruction and read it verbatim. McKnight argued that the instruction was unnecessary and had prejudiced the jury. But on November 22nd, a three-judge panel of the 7th Circuit declined to overturn McKnight’s conviction.
Though the panel acknowledged the potential problems with such an instruction, the court deferred to Pallmeyer’s judgment that the circumstances of the case warranted the controversial instruction.
McKnight filed a motion requesting a rehearing en banc by the entire 7th Circuit, which the court voted to deny.
Judges Richard Posner, Michael Kanne, and Ann Claire Williams dissented. A passionate dissent penned by Posner cautioned that the case sets the precedent that such instructions can be used in any case with questionable investigation techniques.
“The panel recognized that ‘the giving of unnecessary instructions raises the distinct possibility of cluttering the instructions taken as a whole and, consequently, deflecting the jury’s attention from the most important aspects of its tasks,” Posner wrote.
But, “the panel in this case did not apply the precepts that it had enunciated. This district court had no just failed to ‘elaborate on its reason’ for giving the instruction; it had given no reason; it had given an explanation devoid of reasons.”
According to Posner, Pallmeyer explained her reasoning only by saying, “I have given this instruction before. I don’t think it’s particularly problematic.”
In addition, Posner argued, the prosecutor did not proffer any reason why the jury in this particular case would be susceptible to jury nullification; rather he argued that juries generally could be apt to question government techniques.
“This would be a different case were there any articulated reason, with some foundation in fact or theory, for believing that the jury might acquit a defendant whom it believed guilty, just because the government had used deceptive investigative techniques,” he wrote.
The instruction was sufficient to establish prejudice, the dissenting judges concluded, because “jurors might think the instruction must relate to some issue in the trial, or else it would not have been given; the logical candidate for such an issue in this case is the credibility of the wiretap and informer testimony. The jurors may have put 2 and 2 together and gotten-5: since the techniques are proper and legal, the evidence they produce must be true.”
The dissent concluded by cautioning against the ruling’s precedent. “The implication was that the instruction is proper in any case in which the government relies on informers, or wiretapping, or some other investigative method that some jurors might question. The panel opinion implies that the instruction can be given in any case in which such techniques are used,” Posner wrote.It is unknown whether or not McKnight will now appeal to the Supreme Court – now his last possible recourse.