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United States v. Turner

United States Court of Appeals, Seventh Circuit

September 9, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
C. GREGORY TURNER, Defendant-Appellant.

          Argued October 26, 2015

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 13 CR 572, Elaine E. Bucklo, Judge.

          James D. Tunick, for Defendant-Appellant.

          Barry Jonas, for Plaintiff-Appellee.

          Before KANNE, ROVNER, and SYKES, Circuit Judges.

          KANNE, Circuit Judge.

         Defendant 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 Zimbabwe.

         On 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.

         Before 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).

         I. BACKGROUND

         We 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 procedural history.

         A. Legal Framework of Zimbabwe Sanctions

         In 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 United States.

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.

         In 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 region." Id.

         To 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 prohibitions." Id.

         Among 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.

         To 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).

         B. Factual Background and Procedural History

         From 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.

         On 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 541.405.[1]

         A jury 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 Zimbabwean SDNs.

         Additionally, 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, Zimbabwean SDNs.

         On 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.

         II. ANALYSIS

         On 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.

         First, 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.

         A. Consulting Agreement

         We 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).

         On 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.

         The 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 14-15)

         Then, 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 objection." (Id.)

         On 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 disagree.

         This 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.

         Federal 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 ...


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