In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4538

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ADAM BABUL,

Defendant-Appellant.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 CR 548—Joan B. Gottschall, Judge.

____________

ARGUED JANUARY 16, 2007—DECIDED FEBRUARY 9, 2007

____________

Before EASTERBROOK, Chief Judge, and POSNER and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. Both the written and the

practical tests for commercial drivers’ licenses in Illinois

are given only in English; the state does not allow translators to assist applicants. Adam Babul operated Bamba,

Inc., which offered a service to recent immigrants in

Illinois who wanted to drive trucks for a living but didn’t

speak or write English: for $2,000, he would help them

secure licenses in Wisconsin, which allows translators to

accompany applicants. Babul’s service employed deceit

from beginning to end. First he obtained bogus addresses for the applicants, so that they appeared to be

residents of Wisconsin (and thus eligible for licenses there)
2 No. 05-4538

even though they lived in Illinois. Second he recruited

translators who told the applicants what answers to give,

not just what the questions meant in their native tongues.

Third Babul directed his clients to David Becker, who

was authorized to administer over-the-road tests in

Wisconsin. For a fee four times the lawful maximum for

giving a road test, Becker promised to assign the applicants passing grades no matter how badly they drove. At

least 200 people obtained commercial licenses through

Babul’s scheme, for which he has been convicted of violating 18 U.S.C. §1014. This statute forbids making false

statements to banks and other financial institutions; the

statements in question were used to obtain documents

that falsely showed the applicants to be residents of

Wisconsin. Babul has been sentenced to 41 months’ imprisonment.

Although the evidence of guilt was overwhelming and

the jury instructions impeccable, Babul contends that he

is entitled to another trial because Magdalena Jelic, one

of Babul’s employees at Bamba who had detailed knowledge of its operations, testified for the prosecution without

first taking an oath to tell the truth, as Fed. R. Evid. 603

requires. When the judge realized what had happened, she

asked counsel how they wished to proceed. The Assistant

United States Attorney suggested recalling Jelic and

asking her under oath whether she stands by her answers.

Babul’s lawyer—apparently thinking that this procedure

would just emphasize Jelic’s testimony, which had been

damaging to his client—formally waived any objection. He

told the judge that he had no doubt that Jelic would

reaffirm her testimony under oath, and that although he

wanted the jury to disbelieve her story he saw no point

in having her return to the stand. The judge accepted this

waiver, and the trial proceeded.

Waiver means that there was no error; even plain-error

review is unavailable. See United States v. Olano, 507 U.S.
No. 05-4538 3

725, 732-33 (1993). This leads Babul’s appellate lawyer

to contend that his trial lawyer lacked the authority to

waive Jelic’s return to the stand. Only the defendant

personally may waive the requirement that testimony

be taken under oath, Babul now maintains. Established

doctrine has it that some rights are so important that

only the defendant may waive them. The right to trial by

jury is in this category; so is the right to testify in one’s

own defense. See Rock v. Arkansas, 483 U.S. 44 (1987);

Jones v. Barnes, 463 U.S. 745 (1983); Taylor v. United

States, 287 F.3d 658 (7th Cir. 2002). What these rights

have in common is that exercising, bypassing, or using

these rights as bargaining chips in negotiations with the

prosecutor are the most important decisions in the case.

The elections are discrete, and one does not need a legal

education to appreciate the issues. By contrast, choices

about trial practice and management—should a given

witness’s testimony be presented? should a hearsay

objection be made? what language should be proposed

for the jury instructions?—are committed to counsel, not

only because they are numerous (asking the defendant

each time would be impractical) but also because they

are the sort of choices for which legal training and experience are most helpful. A defendant may act as his own

advocate, see Faretta v. California, 422 U.S. 806 (1975),

but when he chooses to have a lawyer conduct the defense,

the lawyer gets to conduct the defense and not just whisper advice in the defendant’s ear each time a decision

must be made.

Babul insists that whether to allow testimony without

an oath must be grouped with core decisions such as

whether to testify (and whether to have a trial at all). As

far as we can see, however, no appellate decision supports

that proposition. Although the absence of authority (no

appellate decision supports the prosecutor, either) may

be attributable to the situation’s rarity—not very often
4 No. 05-4538

will judge, court reporter, deputy clerk, and every lawyer

in the courtroom overlook a failure to administer the

oath—we are not at all tempted by Babul’s invitation to

establish a new principle. Babul observes that United

States v. Odom, 736 F.2d 104, 115-16 (4th Cir. 1984), and

United States v. Wilcoxon, 231 F.2d 384 (10th Cir. 1956),

which treated counsel’s waivers of the oath as conclusive,

both noted that the defendant either approved counsel’s

decision or stood silent when counsel chose; in this case

the record does not reflect whether defendant was present when his lawyer waived having Jelic recalled to the

stand. To hold that a defendant’s acquiescence is sufficient is not to imply that it is necessary, however.

Having a witness under oath facilitates cross-examination, which is part of the constitutional right to confront

one’s accusers. See Wigmore on Evidence §1362 at 10

(Chadbourn rev. 1974). But this relation between oath

and cross-examination does not imply that decisionmaking rests exclusively in the accused’s hands. After a

witness testifies, counsel rather than the client decides

whether to cross-examine, and, if so, what lines of inquiry

to pursue. If counsel could have elected to limit or forego

cross-examination of Jelic, he was equally entitled to

forego placing Jelic under an oath that facilitates crossexamination. No appellate decision of which we are

aware holds that the decision whether (and to what extent) to cross-examine a witness belongs exclusively to

the defendant—and this absence of authority can’t be

chalked up to the fact that the subject rarely arises. Who

decides about cross-examination is a question potentially

at issue in every criminal trial. The check on counsel’s

decisions is not the defendant’s assent at each step along

the way, but the doctrine of ineffective assistance, which

ensures that counsel’s work as a whole satisfies professional standards. Babul does not contend that trial counsel furnished substandard assistance; we think it likely,
No. 05-4538 5

however, that if counsel had demanded that Jelic return

to the stand, Babul would now be arguing that counsel

undermined his case by enabling the prosecutor to reinforce damaging evidence against him.

The remaining arguments concern two sentencing adjustments—one the district court made and one it did not.

The one not made is a reduction on account of Babul’s

status as an alien who will be removed from the United

States as soon as he is released from prison. Babul observes that his impending removal will preclude any

possibility of early release from prison to a half-way house

and may change the mix of programs and services offered

while he is in prison.

Before United States v. Booker, 543 U.S. 220 (2005), we

had held that these differences never justify sentences

below the appropriate ranges under the Sentencing

Guidelines. See United States v. Meza-Urtado, 351 F.3d

301 (7th Cir. 2004). Now that the Guidelines are advisory, however, Babul maintains that he is entitled to

a reduction to avoid unwarranted disparities between

the effective punishment meted out to citizens and the

punishment of aliens. See 18 U.S.C. §3553(a)(6). This line

of argument does not reckon with United States v.

Boscarino, 437 F.3d 634 (7th Cir. 2006), which observed

that sentences within the Guideline ranges are the surest

way to comply with §3553(a)(6), for the Guidelines are

designed to ensure like treatment of like situations, and

thus to avoid unjustified disparities. Thus we held in

Boscarino that “[a] sentence within a properly ascertained

range . . . cannot be treated as unreasonable by reference to §3553(a)(6).” 437 F.3d at 638. The lack of an

“alienage discount” promotes rather than undermines the

objective of §3553(a)(6).

This is not to say that a district judge must sentence

within the Guideline range in order to comply with
6 No. 05-4538

§3553(a)(6). Judges have more flexibility now than they

did when we decided Meza-Urtado. Cf. United States v.

Gama-Gonzalez, 469 F.3d 1109 (7th Cir. 2006). As we

observed in United States v. Mallon, 345 F.3d 943 (7th Cir.

2003), under the Strasburg Convention most aliens are

entitled to transfer to prisons in their home nations, where

they will receive the benefit of any programs (and release

opportunities) limited to citizens. Babul does not argue

that he is ineligible for such a transfer. He remains in the

United States by choice and cannot complain that he is

serving the same sentence that would be meted out to a

U.S. citizen for committing the same offense.

Whether that sentence has been determined correctly

depends on the application of U.S.S.G. §2B1.1(b)(12)(A).

Guideline 2B1.1 deals with fraud and theft offenses, and

the principal determinant of offense severity is financial

loss. Subsection (b)(1) is a table of loss amounts, with

higher offense levels attached to higher losses. The

demonstrable financial loss from Babul’s scam was relatively low, producing a correspondingly low offense level

by application of this table. The district court concluded,

however, that one of the specific offense characteristics

justified an increase. Subsection (b)(12)(A) provides for a

minimum offense level of 14 if the offense involved “the

conscious or reckless risk of death or serious bodily injury”.

The district judge concluded that putting 200 incompetent truck drivers on the road created such a risk and

adjusted the offense level accordingly.

Whether “effectively untested” truck drivers is the

same thing as “incompetent” truck drivers is an empirical

question, on which the record is silent. Does Wisconsin’s

licensing system (or that of Illinois), when implemented

honestly, ensure that drivers are safe? Or does anyone

who applies eventually get a license (applicants may

take the test over and over until they pass), leaving safety

to be achieved in other ways—through supervision by
No. 05-4538 7

drivers’ employers, or through the insurance and tort

systems (drivers who build up records of moving violations and small accidents may be priced out of the market,

through higher insurance premiums, before they cause

death or serious injury on the road). States interfere

with market-based means to achieve safety—assignedrisk pools and other devices keep accident-prone drivers

on the road even when no private insurer is willing to

accept the risk for a price the driver is willing to pay, and

even repeat drunk drivers often are allowed back behind

the wheel—so perhaps one must fall back on the licensure

decision. Yet the fact that few people who want to drive

have not been able to obtain licenses, and that more

than 40,000 persons die in vehicular collisions annually,

implies that the system falls short at filtering out bad

drivers.

Whether evading the state’s testing system creates an

incremental risk of death or serious bodily injury is an

empirical question, on which both sides of this litigation

have remained silent. They have offered lawyers’ arguments—talk about what might be, rather than data

about what is. Yet data are readily available, either from

comparing accident rates of licensed and unlicensed

drivers or from analysis of the driving records of Babul’s

clients. Even if many of Babul’s clients never found work

as truck drivers, the rest drove for years before Babul

was caught, convicted, and sentenced; if they are especially dangerous, this would show up in both public and

private records (convictions for moving violations and

insurance experience). Yet no one thought to examine

these records.

Many parts of the Guidelines, in addition to statutes

such as 18 U.S.C. §16(b), pose the question whether a

particular activity creates a risk of bodily injury or death.

Numbers rather than words must supply the answers.

Yet time after time counsel provide only talk, as if a
8 No. 05-4538

classroom-style “it could be argued that . . .” were sufficient. Although pertinent data sometimes are available

in governmental compilations or scholarly publications,

and we have used what we could find, e.g., United States

v. Howze, 343 F.3d 919 (7th Cir. 2003), usually we must

rely on the records compiled in the district court. Lawyers’

persistent failure to assemble data that bear on the

evaluation of risks has led us to express frustration and

call on the bar to be more diligent, and on the Sentencing

Commission to quantify risks using its own databases. See,

e.g., United States v. Boyd, No. 06-2431 (7th Cir. Jan. 30,

2007), slip op. 6-7; United States v. Chambers, No. 06-2405

(7th Cir. Jan. 9, 2007), slip op. 5-6. In this litigation,

however, words will have to suffice.

Tempting as it is to say that the prosecutor, as the

proponent of the increase under subsection (b)(12)(A),

must lose because no data were presented, we do not think

that fiddling with the burdens of production and persuasion is a satisfactory solution. Judges are entitled to

approach many empirical issues with a set of prior beliefs

based on experience, and when the record is silent they

may make decisions based on those priors. That incompetent drivers create risks of injury is a fact that no one

contests; the annual death toll on the roads greatly

exceeds the number of murders and military fatalities.

Drivers who elect to use bribery and fraud to obtain

licenses identify themselves as more likely to be incompetent than drivers who obtain licenses the honest way.

Published studies conclude that unlicensed drivers are

involved in substantially more collisions than licensed

drivers. See, e.g., David J. DeYoung, Raymond C. Peck &

Clifford J. Helander, Estimating the exposure and fatal

crash rates of suspended/revoked and unlicensed drivers

in California, 29 Accident Analysis & Prevention 17 (1997)

(unlicensed drivers have 4.9 times as many fatal crashes

apiece as licensed drivers, while people driving on sus-
No. 05-4538 9

pended or revoked licenses are “only” 3.7 times as likely

as licensed drivers to be involved in fatal crashes). Although the published studies are limited to drivers of

personal rather than commercial vehicles, and do not

rule out the possibility that people who have valid personal licenses are competent truck drivers without holding valid commercial licenses, they provide support for a

belief that all drivers who do not hold valid licenses

pose extra risk of injury or death.

Subsection (b)(12)(A) speaks of “risk” rather than “substantial” or even “material” risk, and Babul’s crime

must have created some risk. The omission of qualifiers

such as “substantial” makes sense. Guideline 2B1.1 as a

whole deals with theft and fraud, crimes that generally

cause only financial injury. When a fraud creates the risk

of physical injury or death, a longer sentence is appropriate. The table of equivalence tells us that not much

risk of physical injury is required: subsection (b)(12)(A)

raises the offense level to 14, the same level that is

appropriate for embezzling $70,000. (The base offense

level under §2B1.1 is 6, to which extra levels are added

as the loss increases. A loss between $70,000 and $120,000

adds 8 levels, for a total of 14.) A single death in a road

accident imposes losses much greater than $70,000; many

bodily injuries also exceed that level. Even a 1-in-50

chance of death or serious injury equates to a financial

loss in the $70,000 range. Plunking 200 potentially incompetent drivers behind the wheel of heavy trucks

readily could create much greater risks, so in the absence

of evidence quantifying the danger the judge was entitled to invoke this enhancement. Babul’s crime put

strangers at greater risk than if he had pilfered $70,000

from a corporation’s treasury. A sentence of 41 months

cannot be thought unreasonably high. It may well be

unduly favorable to Babul—for if the district court had

treated as “loss” the $2,000 paid by each of his clients (on
10 No. 05-4538

the theory that they paid for commercial licenses but

received only worthless paper), then the offense level

would have been even higher.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-9-07