October 26, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division No. 13 CR 572, Elaine
E. Bucklo, Judge.
D. Tunick, for Defendant-Appellant.
Jonas, for Plaintiff-Appellee.
KANNE, ROVNER, and SYKES, Circuit Judges.
Gregory Turner was convicted of willfully conspiring, with
Prince Asiel Ben Israel, to provide services for Zimbabwean
Special Designated Nationals ("SDNs"), a group of
government officials and related individuals deemed to be
blocking the democratic processes or institutions of
appeal, Turner raises several challenges against his
pre-trial and trial proceedings. First, he argues that the
district court erred in admitting into evidence a document
detailing his agreement to provide services for the
Zimbabwean SDNs, called the "Consulting Agreement."
Second, he contends that the district court erred in its
instructions to the jury. Third, Turner argues that the
district court erred in its interactions with the jury after
deliberations had begun. We affirm.
turning to the case, we note that Turner also claims that the
evidence obtained pursuant to the Foreign Intelligence
Surveillance Act ("FISA") should have been
suppressed. (Appellant Br. 35-39.) We have reviewed the
classified materials and find that the investigation did not
violate FISA. We shall issue a separate, classified opinion
explaining this conclusion. See United States v.
Daoud, 755 F.3d 479, 485 (7th Cir. 2014),
supplemented, 761 F.3d 678 (7th Cir. 2014).
begin with a brief synopsis of the relevant legal framework
for Turner's case, including the statutes, executive
orders, and regulations underlying the Zimbabwe sanctions.
Then, we summarize the pertinent factual background and
Legal Framework of Zimbabwe Sanctions
1977, Congress enacted the International Emergency Economic
Powers Act ("IEEPA"), Pub. L. 95-223 (codified at
50 U.S.C. §§ 1701-07), which empowered the
President to declare a "national emergency" during
peace time "to deal with any unusual and extraordinary
threat, which has its source in whole or substantial part
outside the United States, to the national security, foreign
policy, or economy of the United States." 50 U.S.C.
§ 1701(a). To counter this threat, the IEEPA broadly
authorized the President to:
[I]investigate, block during the pendency of an
investigation, regulate, direct and compel, nullify, void,
prevent or prohibit, any acquisition, holding, withholding,
use, transfer, withdrawal, transportation, importation or
exportation of, or dealing in, or exercising any right,
power, or privilege with respect to, or transactions
involving, any property in which any foreign country or a
national thereof has any interest by any person, or with
respect to any property, subject to the jurisdiction of the
Id. § 1702(1)(B). Additionally, violations of
"any license, order, regulation, or prohibition"
issued pursuant to the IEEPA are unlawful and carry civil and
criminal penalties. Id. § 1705.
March 2003, President George W. Bush invoked the IEEPA to
issue Executive Order 13288, titled "Blocking Property
of Persons Undermining Democratic Processes or Institutions
in Zimbabwe." 68 Fed. Reg. 11457 (Mar. 6, 2003). This
order declared a "national emergency" in response
to "an unusual and extraordinary threat to the foreign
policy of the United States" arising from the actions
and policies of certain Zimbabwean government officials that
were "undermin[ing] Zimbabwe's democratic processes
or institutions, contributing to the deliberate breakdown in
the rule of law in Zimbabwe, to politically motivated
violence and intimidation in that country, and to political
and economic instability in the Southern African
counter this threat, Executive Order 13288 prohibited
"[a]ny transaction or dealing by a United States person
or within the United States in property or interests in
property" belonging to any of the special designated
nationals ("SDNs") listed in the Annex.
Id. Prohibited transactions or dealings include
"the making or receiving of any contribution of funds,
goods, or services to or for the benefit of any person listed
in the Annex." Id. The order also prohibited
"any conspiracy formed to violate the
the seventy-seven persons listed in the Annex were Robert
Gabriel Mugabe, the President; Simon Khaya Moyo, the former
Deputy-Secretary for Legal Affairs (and current Ambassador to
South Africa); Emmerson Mnangagwa, the Parliamentary Speaker;
and Samuel Mumbengegwi, the former Minister of Industry and
International Trade (and current Foreign Minister).
Id. In November 2005, President Bush issued
Executive Order 13391, which reiterated the prohibitions
described in Executive Order 13288 but also took
"additional steps," such as expanding the list of
SDNs to include Gideon Gono, Governor of the Federal Reserve
Bank. See 70 Fed. Reg. 71201 (Nov 22, 2005). Both
executive orders remain in effect.
effectuate these executive orders, the Department of
Treasury's Office of Foreign Asset Control
("OFAC") enacted several regulations, commonly
referred to as the "sanctions" against the
Zimbabwean SDNs. 31 C.F.R. § 541.101 et seq.
Under 31 C.F.R. § 541.201(a)(1), property located within
the United States belonging to Zimbabwean SDNs is deemed
"blocked and may not be transferred, paid, exported,
withdrawn, or otherwise dealt in." Under 31 C.F.R.
§ 541.405, the prohibited dealings with SDNs include
"legal, accounting, financial, brokering, freight
forwarding, transportation, public relations, or other
services" and extend "to services performed in the
United States or by U.S. persons, wherever located."
Pursuant to 31 C.F.R. § 541.204(b), "[a]ny
conspiracy formed to violate any of the prohibitions set
forth in this part is prohibited." However, U.S. persons
may apply for a license from OFAC that, if granted, would
permit them "to engage in any transactions
prohibited," such as providing services to SDNs, without
violating these sanctions. 31 C.F.R. § 501.801(b).
Factual Background and Procedural History
November 2008 until April 2010, Turner conspired with Ben
Israel to provide services to, or on behalf of, Zimbabwean
SDNs, without a license from the United States Treasury
Department. Specifically, Turner and Ben Israel agreed to
provide public relations services-lobbying U.S. officials to
remove the sanctions, arranging for Zimbabwean officials to
meet with U.S. officials to discuss the removal of sanctions,
and assisting Zimbabwean officials in obtaining travel visas
to the United States, to meet with U.S. officials to discuss
removing the sanctions. Turner and Ben Israel were promised
payment of $3,405,000 for their work.
August 27, 2013, a grand jury returned an indictment against
Turner, charging the following: (1) Count One alleged
conspiring to act in the United States as an agent of a
foreign government without prior notification to the Attorney
General, in violation of 18 U.S.C. §§ 371 and
951(a); (2) Count Two alleged acting in the United States as
an agent of a foreign government without prior notification
to the Attorney General, in violation of 18 U.S.C. §
951(a); and (3) Count Three alleged willfully conspiring to
provide services on behalf of, or for the benefit of,
Zimbabwean SDNs, in violation of IEEPA, 50 U.S.C. §
1705(c), and 31 C.F.R. §§ 541.201, 541.204, and
trial against Turner began on September 29, 2014. During
trial, the government presented evidence of Turner's and
Ben Israel's agreement with Zimbabwean SDNs to provide
lobbying services in exchange for $3,405,000. One key piece
of evidence was the Consulting Agreement, a document which
contained details of the arrangement and a distinctive
four-installment payment structure keyed to specific events:
(1) $90,000 upon signing of the contract, (2) $1,105,000 upon
completion of a meeting in Zimbabwe, (3) $1,105,000 upon
completion of a meeting in South Africa, and (4) $1,105,000
upon completion of this project. The government then
presented evidence tying the Consulting Agreement to
corresponding actions by Turner, Ben Israel, and the
the government presented evidence of Turner's and Ben
Israel's efforts to facilitate meetings and
correspondence between U.S. officials and Zimbabwean SDNs.
The government also established that Turner never applied for
or received a license from the U.S. Treasury Department to
permit him to provide services to, or on behalf of,
October 10, 2014, the jury acquitted Turner on Counts One and
Two and convicted him on Count Three. The district court held
Turner's sentencing hearing on January 20, 2015. The
district court determined that Turner's advisory
guidelines range was 14 to 21 months, based on an offense
level of 14 and a criminal history category of I.
Subsequently, the district court sentenced Turner to a
within-guidelines range sentence of 15 months'
imprisonment and one year of supervised release. Judgment was
entered against Turner on January 21, 2015. Turner appealed.
appeal, Turner raises several challenges to his pre-trial and
trial proceedings. When necessary, we provide additional
factual background in order to fully address each claim.
Turner argues that the district court erred in admitting the
Consulting Agreement into evidence as an authenticated
coconspirator statement. Second, Turner contends that the
district court erred in its instructions to the jury for
Count Three, specifically contesting the court's
definition of "willfulness," its decision not to
require unanimity with regard to specific SDNs, and its
inclusion of SDN Mumbengegwi. Third, Turner argues that the
district judge erred in his interactions with the jury after
deliberations had begun, specifically disputing the district
judge's replacement of juror Chism and his ex
parte communications with the jury.
begin by examining Turner's challenge to the district
court's admission of the Consulting Agreement into
evidence as a properly authenticated coconspirator statement,
pursuant to Federal Rules of Evidence 901 and 801(d)(2)(E).
August 29, 2014, the government and Turner moved in
limine to admit and to bar, respectively, the Consulting
Agreement-the document that the government argues outlined
Turner and Ben Israel's agreement with officials to
receive $3,405,000 for their services.
district court, on September 22, 2014, provisionally granted
the government's motion "on the assumption that it
will introduce evidence at trial sufficient to support the
factual assertions made in its motion." (R. 176 at 1-2.)
The critical facts included the following: "that (1) Ben
Israel and Turner acted in accordance with the Consulting
Agreement's distinctive payment structure and (2) Ben
Israel, or someone acting on his behalf, sent the Consulting
agreement to [a National City Bank employee] to explain the
purpose of the incoming wire from [Monica] Mutsvangwa."
(Id. at 14.) The district court assessed that,
assuming the government introduced evidence establishing
these facts, the Consulting Agreement was admissible as an
authenticated coconspirator statement. (Id. at
during trial, the government presented evidence for these
factual assertions and moved to admit the Consulting
Agreement into evidence as a coconspirator statement. (Trial
Tr. 57, Oct. 1, 2014.) Turner responded: "No
appeal, Turner argues that the district court erred in
admitting the Consulting Agreement as a properly
authenticated coconspirator statement, pursuant to Federal
Rules of Evidence 901 and 801(d)(2)(E). Specifically, he
contends that the Consulting Agreement was hearsay and that
it was not properly authenticated because the government
presented insufficient evidence that Ben Israel was the
declarant and that the Zimbabwe meeting took place in
accordance with the agreement's payment structure. We
court reviews a district court's interpretation of the
Federal Rules of Evidence de novo but the district
court's decision to admit evidence for abuse of
discretion. United States v. Mendiola, 707 F.3d 735,
738 (7th Cir. 2013). In Turner's case, the district court
did not have to interpret the Federal Rules of Evidence; it
merely determined whether the Consulting Agreement met the
requirements for Rules 901 and 801(d)(2)(E). Accordingly, we
review the district court's admission of the Consulting
Agreement for an abuse of discretion.
Rule of Evidence 901(a) provides that "[t]o satisfy the
requirement of authenticating ... an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it
is." The authentication requirement can be fulfilled in
a variety of ways, including by evaluating "[t]he
appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with
all the circumstances." Fed. R. Evid. 901(b)(4); see
also United States v. Fluker,698 F.3d 988, 999 (7th
Cir. 2012). "Only a prima facie showing of genuineness