In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4131

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICKEY L. DOOLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:08-cr-30010-GPM-PMF-1—G. Patrick Murphy, Judge.

ARGUED MAY 27, 2009—DECIDED AUGUST 20, 2009

Before CUDAHY, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. Mickey L. Dooley was convicted

in the United States District Court for the Southern

District of Illinois on charges arising out of thefts from

the evidence locker of the municipal police department

where he was employed. The district court sentenced

him to 120 months’ imprisonment, followed by three

years of supervised release. Mr. Dooley filed this timely

appeal challenging both his conviction and his sentence.

For the reasons discussed in this opinion, we affirm his
2 No. 08-4131

conviction in part and reverse it in part. Because we

are reversing his conviction on one count, we also must

vacate his sentence and remand his case to the district

court for resentencing.

I

BACKGROUND

Mr. Dooley was a police officer employed by the Alton

(Illinois) Police Department (“APD”). During the time

period relevant to this case, Mr. Dooley was the evidence custodian for the APD; in this capacity, he was

responsible for collecting and processing evidence at

the scenes of major crimes committed within the APD’s

jurisdiction. He was also in charge of receiving, maintaining and preserving the evidence that was stored in

the APD’s evidence vault.

The APD’s evidence vault was subject to strict security

measures. Only five members of the APD, including

Mr. Dooley, had access cards allowing entry to the vestibule area outside the evidence vault. Entry to the vault

itself required a special secure key; only two copies of

that key existed. One was assigned to Mr. Dooley; the

second was stored in a secure area in the administration

wing of the APD. The cash locker inside the vault

required another key for access; only two copies existed.

One was assigned to Mr. Dooley and the other was

stored in the secured administration wing.

In June 2006, the Olin Community Credit Union in Alton

was robbed (the “OCU robbery”). In October 2006, a
No. 08-4131 3

local branch of the US Bank was robbed (the “US Bank

robbery”). The APD investigated the robberies; it ultimately was able to recover $4,115 in proceeds from the

June robbery and $20,029 from the October robbery.

Mr. Dooley participated in both investigations and personally deposited the money into the APD evidence

vault. On Friday, April 6, 2007, FBI Special Agent Melanie

Jiminez contacted Mr. Dooley’s supervisor to request

that evidence from the OCU robbery be turned over to

the FBI for use in the federal prosecution in that case.

That same day, Mr. Dooley’s supervisor sent him an email to inform him that the FBI wished to retrieve that

evidence the following week. On Sunday, April 8—one

of Mr. Dooley’s days off—surveillance cameras recorded

Mr. Dooley inside the evidence vault removing the

box containing evidence from the OCU robbery.

On the following Monday, April 9, Special Agent

Jiminez called Mr. Dooley to arrange to pick up the evidence. Mr. Dooley told Jiminez that he would provide

a container in which to carry the evidence. He also

asked her to delay the evidence pickup until the

following day. Jiminez agreed. When Jiminez arrived

the next day, Mr. Dooley gave her an inventory list to

check off while he handled the evidence packages. While

Jiminez was looking at the list, the surveillance camera

captured Mr. Dooley placing one of the packages under

another; as a result, Jiminez never examined the contents

of the concealed package. Mr. Dooley then carried the

evidence out to Jiminez’s car.

Jiminez took the evidence directly to the FBI’s secure

evidence room, where it remained until Friday, April 13,
4 No. 08-4131

2007. On that day, the FBI discovered that most of

the money recovered from the OCU robbery was

missing and that the original seals on the evidence envelopes had been compromised. Jiminez notified her direct

supervisor and the APD. In response, APD Police Chief

Chris Sullivan ordered an inventory of the APD evidence

vault. He also ordered APD personnel not to enter the

vault until after the inventory was completed on the

following Monday. Despite Chief Sullivan’s order to stay

out, Mr. Dooley was recorded entering the vault on

both Saturday and Sunday. On Sunday, the cameras

also recorded him accessing the APD’s cash locker.

The APD conducted an audit of the evidence vault on

Monday, April 16, 2007. As a result, the APD discovered

that bags containing evidence from the US Bank robbery

had been tampered with and that $18,608 was missing

from the evidence in that case. Investigators later discovered that an evidence bag containing $9,460 had

been cut open, re-sealed, and initialed by Mr. Dooley.

Handwriting analysis confirmed that the initials were

written by Mr. Dooley.

The APD then terminated its internal investigation

and turned the matter over to the Illinois State Police and

the FBI. Investigators performed a full audit of the

APD’s cash locker and discovered that a total of $38,749.58

was missing. Some of the missing currency had been

replaced with poor-quality counterfeit bills. The investigation also revealed that Mr. Dooley had removed evidence, including cash, a computer and marijuana, from the

scene of a death investigation. He had not booked that

evidence or documented its existence in any way.
No. 08-4131 5

After discovering the counterfeit currency in the evidence vault, the investigators asked Mr. Dooley if they

could search any computers he owned. Mr. Dooley told

the investigators that he owned two computers, and he

signed a form titled “CONSENT TO SEARCH BY

OWNER,” which represented that he had ownership and

authority over both computers. Investigators discovered

that the serial number of one of the computers, an Apple

Macintosh laptop, matched the serial number of a computer that had been taken from the home of Lee Fielding,

one of the perpetrators of the US Bank robbery.

The investigators then interviewed Mr. Dooley again

and asked him if he had stolen the laptop. Mr. Dooley

initially denied having stolen it; he insisted that he

had bought the laptop from the Apple Store at the

Galleria mall in St. Louis, Missouri, for $2,000 in cash. He

claimed that he had a receipt at home that would prove

his ownership. After about thirty minutes of questioning,

however, Mr. Dooley changed his story and admitted

that he had stolen the laptop. A forensic examination

revealed that he had entered ownership information on

the laptop as if it were his own and had used the

computer for personal purposes. The examiners also

discovered that Mr. Dooley had used the laptop to conduct a Google search on the phrase “financial ruin.” R.125

at 959.

Further investigation revealed that Mr. Dooley was in

serious financial trouble. He owed tens of thousands of

dollars in back taxes; he was the subject of several IRS tax

levies and a wage garnishment. The investigators also
6 No. 08-4131

uncovered massive gambling losses: In 2006, Mr. Dooley’s

take-home pay totaled $35,955, but his losses at the

Alton Belle Casino totaled $48,424.95. Investigators also

discovered that Mr. Dooley did not file a 2006 federal tax

return until October 31, 2007, well after he became

aware that he was under investigation by the IRS.

On May 22, 2008, the Government brought an eightcount indictment against Mr. Dooley in the United States

District Court for the Southern District of Illinois. The

crimes alleged were: (1) two counts of making a false

statement, 18 U.S.C. § 1001(a)(2); (2) one count of wire

fraud, 18 U.S.C. §§ 1343, 1346; (3) one count of attempting

to conceal evidence, 18 U.S.C. § 1512(c)(1); (4) two counts

of disposal of money stolen from a bank, 18 U.S.C.

§ 2113(c); (5) one count of misapplication of property

under the control of a local government, 18 U.S.C. § 666;

and (6) one count of failure to file a tax return, 26 U.S.C.

§ 7203. Mr. Dooley filed a motion to dismiss the indictment, which the district court denied.

After a two-week trial, a jury convicted Mr. Dooley on

all counts. The district court imposed an above-guidelines

sentence of 120 months in prison. Mr. Dooley then filed

this appeal, in which he challenges the indictment, his

conviction and his sentence.

II

DISCUSSION

Mr. Dooley raises five points of error. He challenges the

sufficiency of the evidence at trial, the sufficiency of
No. 08-4131 7

This latter assertion is not supported by the record. The 1

portion of the trial transcript to which Mr. Dooley cites does

not substantiate his assertion that the court forced him to take

less time than he needed to put on his defense. According to

the transcript, the court simply asked Mr. Dooley’s counsel how

much time he would need to present his case. Mr. Dooley’s

counsel replied, “I would say the better part of the day, your

Honor,” to which the court responded, “Very well.” R.126 at

1401. Mr. Dooley does not claim that he ever asked for more

time. Furthermore, he has made no attempt to explain what

additional evidence he would have presented if he had more

time to put on his defense.

the indictment, the district court’s decision to exclude

certain evidence at trial, the district court’s refusal to

give a requested jury instruction and the reasonableness

of his sentence. We shall address each of his arguments

in turn.

A. Sufficiency of the Evidence

Mr. Dooley submits that the evidence presented by the

Government on each of the eight counts was insufficient

to permit any rational trier of fact to conclude that he

was guilty beyond a reasonable doubt. He also contends

that the district court “rushed” his defense by requiring

him to counter two weeks of government evidence in

only one day. Appellant’s Br. 18.

1

“A challenge to the sufficiency of the evidence is a

difficult task for a defendant. We shall reverse only if,

after viewing all of the evidence in a light most favorable
8 No. 08-4131

to the government, and drawing all reasonable inferences

therefrom, . . . a rational trier of fact could not have

found the essential elements of the crime, beyond a

reasonable doubt.” United States v. Hearn, 534 F.3d 706,

714 (7th Cir. 2008) (alteration in original) (citation and

quotation marks omitted).

Mr. Dooley points to several pieces of evidence that

could have provided a basis for reasonable doubt if the

jury had decided to credit them. For seven of the eight

counts, however, he fails to identify any element of any

of the crimes for which the Government failed to

present evidence sufficient to support the jury’s verdict.

Rather, he simply takes issue with the weight the jury

chose to assign to the Government’s evidence. This is not

an adequate basis on which to challenge a conviction. See

United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008)

(“It is up to the jury to weigh the evidence and determine

the credibility of the witnesses; we do not second-guess

the jury’s assessment of the evidence.”).

On one of the eight counts, however, Mr. Dooley’s

challenge has merit. Count 3 of the indictment alleges

that Mr. Dooley committed wire fraud in violation of 18

U.S.C. §§ 1343 and 1346. The wire fraud statute makes it

a crime to “transmit[] or cause[] to be transmitted by

means of wire . . . in interstate or foreign commerce, any

writings, signs, signals, pictures or sounds for the purpose of executing [a fraudulent] scheme or artifice.”

18 U.S.C. § 1343. Count 3 of the indictment alleges that

Mr. Dooley engaged in a “scheme to defraud the City

of Alton Police Department and the citizens of the South-
No. 08-4131 9

ern District of Illinois out of the right to honest services

of the evidence officer of the Alton Police Department to

preserve the integrity of evidence being stored in connection with criminal investigations and prosecutions.” R.25 at 2. The indictment alleges that Mr.

Dooley’s scheme violated the wire fraud statute by

causing an e-mail to be sent from Mr. Dooley’s supervisor, David Hayes, to Mr. Dooley on April 6, 2007. In

that e-mail, Hayes directed Mr. Dooley “to gather

evidence being held in the [APD] evidence vault to

return to the [FBI] for a federal bank robbery prosecution.” Id. at 3-4. The indictment further alleges that

Mr. Dooley’s “concealment of his misappropriation of

evidence was incidental to an essential part of his

scheme to continue his employment and further misappropriate evidence,” and adds that Mr. Dooley “knew

that the F.B.I. would be seeking the return of the evidence

in the ordinary course of business and therefore that

the use of telephones or email transmissions would occur

in the ordinary course of business.” Id. at 4. The Government’s theory is that the e-mail put Mr. Dooley on

notice that the FBI would be coming to take possession

of the evidence from the OCU robbery and that this

information helped him conceal the fact that he had

stolen most of the money from that robbery.

We have held that, under certain circumstances, a

communication is made “for the purpose of executing” a

fraud when the communication facilitates concealment

of an ongoing fraudulent scheme. See, e.g., United States

v. Turner, 551 F.3d 657, 668 (7th Cir. 2008) (“Use of the

mails to lull victims into a false sense of security, we
10 No. 08-4131

The federal mail fraud statute, 18 U.S.C. § 1341, is worded 2

almost identically to the wire fraud statute and is part of the

same chapter of the United States Code. We have held that

“[c]ases construing the mail-fraud statute are equally

applicable to cases involving violations of the wire-fraud

statute.” United States v. Turner, 551 F.3d 657, 666 n.4 (7th

Cir. 2008) (citation omitted). 

have held, violates the mail fraud statute, even if

it occurs after the money has been fraudulently obtained.” (quoting United States v. Brocksmith, 991 F.2d 2

1363, 1367-68 (7th Cir. 1993))). We need not consider

whether the evidence supports a concealment theory in

this case, however, because it is clear that the Government failed to prove another requirement of the wire

fraud statute: that the defendant “transmit[ted] or

cause[d] to be transmitted” a wire communication. 18

U.S.C. § 1343.

The Government based the wire fraud charge on an email message sent by Hayes to Mr. Dooley on April 6,

2007. In that message, Hayes informed Mr. Dooley that

FBI Special Agent Jiminez would be coming to collect

the evidence from the OCU robbery. The Government

submits that, although Mr. Dooley did not send that

message himself, he nevertheless “caused” it to be sent

because he “acted with knowledge that the use of a

wire was reasonably foreseeable.” Appellee’s Br. 33

(citing United States v. Ratliff-White, 493 F.3d 812, 818

(7th Cir. 2007)). To support this theory, the Government

relies on the Supreme Court’s decision in Pereira v.

United States, 347 U.S. 1 (1954). In Pereira, the Court held
No. 08-4131 11

that “[w]here one does an act with knowledge that the

use of the mails will follow in the ordinary course of

business, or where such use can reasonably be foreseen,

even though not actually intended, he ‘causes’ the mails

to be used.” Id. at 8-9. The Government submits that,

because Mr. Dooley could foresee that Hayes would send

him an e-mail directing him to get the evidence ready

for pickup, he therefore “caused” the April 6 e-mail to

be sent.

The Government’s position is based on a misreading of

Pereira and an untenable reading of the wire fraud

statute. Pereira says that the defendant “caused” a communication when he acted with the knowledge (or reasonable foresight) that such a communication would “follow”

from his action. The Government seems to take the view

that by “follow,” the Court simply meant “occur after.”

Although this is one meaning of the word “follow,” it

plainly cannot be the one the Court intended, for such

an interpretation would read the word “causes” completely out of the statute. Rather, it is clear that the

Court meant that the communication must occur not

only after the defendant’s act, but as a result of that act. The

statute requires a causal connection between the defendant’s actions and the communication, not simply a

temporal one.

This reading is borne out by the facts in Pereira itself. In

that case, the defendants had conspired to defraud a

widow by falsely representing that one of them was a

successful oil speculator. The scheme was successful,

and it resulted in the mailing of a $35,000 check from a
12 No. 08-4131

Several of our recent cases illustrate this point. In United States 3

v. Adcock, 534 F.3d 635 (7th Cir. 2008), the defendant acquired a

government painting contract by concealing his financial

interest in the contractor. This resulted in interstate wire

transfers of funds from the United States Treasury to the bank

account of the operator of the facility being painted; the facility

operator then used those funds to pay the contractor. The wire

transfers not only were foreseeable to the defendant, but

they also would not have occurred in the absence of the defendant’s misrepresentations.

In United States v. Turner, 551 F.3d 657 (7th Cir. 2008), the

defendant supervised janitors who were employed by the

State of Illinois. The defendant helped the janitors falsify their

time cards to collect wages for time they did not actually

work. As a result, the interstate wire transfers of their pay-

(continued...)

bank in Texas to a bank in California. This mailing, which

occurred as a direct result of the defendant’s scheme

and would not have occurred in its absence, was the

basis for the defendants’ mail fraud conviction, which

the Supreme Court affirmed. The mailing did not

simply occur after the defendants’ fraudulent actions; it

occurred because of them. See id. at 8 (“To constitute a

violation of these provisions, it is not necessary to show

that petitioners actually mailed or transported anything

themselves; it is sufficient if they caused it to be done.”

(emphasis added)).

Cases in this circuit and others confirm the requirement that the defendant’s actions and the communication at issue must be causally connected. In each of 3
No. 08-4131 13

(...continued) 3

checks were for an inflated amount. If not for the defendant’s

misconduct, no wire transfers in those amounts ever would

have occurred.

In United States v. Ratliffe-White, 493 F.3d 812 (7th Cir. 2007),

the defendant was convicted of wire fraud based on a communication sent from the United States Department of the

Treasury in Maryland to the Federal Reserve Bank in Dallas; that

communication instructed that payment be made to the defendant’s fraudulent business. Id. at 815-16. This court held that

the defendant caused a wire transmission in furtherance

of her scheme because she knew that payments would be

electronically transmitted to her account and therefore “she

clearly foresaw that her fraud . . . would result in wire transmissions.” Id. at 819 (emphasis added).

Language in cases from other circuits also reflects the necessity of a causal connection. See, e.g., United States v. Edelmann, 458

F.3d 791, 812 (8th Cir. 2006) (“The statute provides that a

defendant must ‘cause’ the use of mails, but a defendant will

be deemed to have ‘caused’ the use of mails . . . if the use was

the reasonably foreseeable result of his actions.” (emphasis

added) (citation and quotation marks omitted)); United States

v. Bruckman, 874 F.2d 57, 60 (1st Cir. 1989) (holding that a

defendant satisfies the causation requirement by “doing some

act from which it is reasonably foreseeable that the mails will

be used”) (emphasis added) (citation and quotation marks

omitted)).

these cases, the mailing or wire transmission on which

the conviction was based either would not have

occurred, or would have occurred in a substantially

different form, in the absence of the defendant’s fraudulent conduct.
14 No. 08-4131

That causal connection is absent in this case. Even if

Mr. Dooley never had committed any theft, the FBI still

would have asked to take possession of the OCU money

in order to use it in the federal prosecution for that bank

robbery, and Hayes would have sent Mr. Dooley exactly

the same e-mail message asking him to prepare that

evidence for the FBI. Mr. Dooley’s conduct had no effect

on either the existence of that wire transmission or its

content. He did not “cause” it to be sent in any sense of

the word. Compare United States v. Kwiat, 817 F.2d 440, 443-

44 (7th Cir. 1987) (reversing a mail fraud conviction

where “honest services would have produced the same

sort of mailings” as the ones the defendants made), with

United States v. Mitchell, 744 F.2d 701, 704 (9th Cir. 1984)

(affirming a mail fraud conviction where the mailings

“would not have occurred except as a step in the scheme”).

Because he did not transmit or cause the transmission of

any interstate wire communication, Mr. Dooley is not

guilty of wire fraud. His conviction on Count 3 therefore

must be reversed, and an order of acquittal must be

entered on that count.

B. Sufficiency of the Indictment

Mr. Dooley submits that the case against him should

have been dismissed because the indictment was inadequate under Rule 7(c)(1) of the Federal Rules of Criminal

Procedure. Rule 7(c)(1) provides that “[t]he indictment or

information must be a plain, concise, and definite

written statement of the essential facts constituting the

offense charged . . . .” Mr. Dooley contends that none of the
No. 08-4131 15

counts in the indictment were “suffic[i]ent enough to

provide any factual particulars to fully, directly and

without any ambiguity inf[or]m [him] of what he must

be prepared to meet.” Appellant’s Br. 12.

An indictment is sufficient if it meets three requirements: “First, it must state each element of the crimes

charged; second, it must provide the defendant with

adequate notice of the nature of the charges so that the

accused may prepare a defense; and third, it must allow

the defendant to raise the judgment as a bar to future

prosecutions for the same offense.” United States v. Castaldi,

547 F.3d 699, 703 (7th Cir. 2008) (citation omitted). To

mount a successful challenge to the sufficiency of an

indictment, a defendant must show that the indictment

failed to satisfy one or more of these requirements.

“Moreover, the defendant must demonstrate prejudice

from the alleged deficiency in the indictment.” Id.

Mr. Dooley appears to argue that the indictment failed

to satisfy the second requirement. We cannot agree.

Contrary to Mr. Dooley’s claims, each of the counts in the

indictment contained sufficient detail to put him on

notice about the nature of the Government’s accusations.

The only count that even comes close to falling short of

this requirement is Count 7, which states that Mr. Dooley

“intentionally misapplied property valued at $5000 or

more.” R.25 at 5. The description accompanying that

count does not provide specific information about the

property or how it was misapplied. This omission, however, does not render the indictment insufficient. Indictments are to be read “practically and as a whole, rather
16 No. 08-4131

than in a ‘hypertechnical manner.’ ” Castaldi, 547 F.3d at

703 (quoting United States v. Fassnacht, 332 F.3d 440, 444-45

(7th Cir. 2003)). When the indictment is read as a whole,

it is clear that the property described in Count 7 is the

cash and the laptop, the misapplication of which are

described in detail in the previous counts.

In any event, Mr. Dooley has not alleged, much less

proved, that he suffered any prejudice from the alleged

infirmities in the indictment. Indeed, he never asked for

a bill of particulars. Nor does he deny that the Government had an “open file” policy. It is clear from the

record that Mr. Dooley and his counsel understood the

Government’s allegations and were able to mount a

vigorous, albeit unsuccessful, defense at trial.

C. Exclusion of Evidence about Possible Previous

Robberies

Prior to Mr. Dooley’s appointment as the APD’s evidence

custodian, the Department moved from its old department building to a newly constructed building—the

same building that it occupies today. The evidence vault

in the old building lacked many of the security and surveillance features present in the new building. After the

move, but before Mr. Dooley became evidence custodian,

the APD conducted an evidence audit to ensure an accurate accounting of all the evidence in the new vault.

This audit revealed that some items listed in the APD’s

records were not physically present in the inventory,

which raised the possibility that they might have been

stolen from the old evidence facility.
No. 08-4131 17

At trial, Mr. Dooley sought to introduce evidence

about these missing items. The court excluded the

evidence for two reasons. First, the court noted that the

inventory documents were undated and unsigned, and

therefore lacked proper foundation. The court further

concluded that, even if a foundation could be laid, the

“real problem” was that the evidence was irrelevant: The

fact that thefts might have occurred at a different, lesssecure facility, years before Mr. Dooley became evidence

custodian, had no bearing on the allegations against

Mr. Dooley. R.127 at 1494.

Mr. Dooley also sought to present evidence related to

the possible theft of some guns that once had been in the

vault but went missing after being moved to another, lesssecure part of the building. The guns had been properly

checked out of the evidence locker and slated for destruction, but no record could be found indicating that the

destruction actually took place. The court rejected this

evidence, too, because it concluded that, even if Mr. Dooley

could prove that thefts of evidence from outside of the

vault had occurred, such thefts were irrelevant to whether

someone besides Mr. Dooley could have stolen evidence

from inside the secure vault.

Mr. Dooley submits that the exclusion of this evidence

was erroneous. The Government argues that the court

did not err in excluding the evidence, and that if there

was any error, it was harmless in light of the “overwhelming” evidence of Mr. Dooley’s guilt. Appellee’s Br. 31.

We review a district court’s relevance determinations

for abuse of discretion. United States v. Gill, 58 F.3d 334,
18 No. 08-4131

337 (7th Cir. 1995). We do not believe that the court

abused its discretion in excluding evidence about the

alleged prior thefts. Mr. Dooley’s theory of defense

was that someone else had stolen the cash from the evidence vault. Given the extreme security measures that

were in place in the evidence vault, it is difficult to see

how the possibility of thefts at some undetermined time

in the past from other, less-secure facilities would have

any bearing on whether Mr. Dooley’s explanation for the

theft of the money was possible. The district court therefore acted reasonably in excluding the proffered evidence

as irrelevant. See Fed. R. Evid. 401. Moreover, any

minimal relevance that the evidence of the alleged thefts

might have had was likely outweighed by the risk that it

would waste time and distract the jury from the central

issues in the case. See Fed. R. Evid. 403 (“Although relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”). Given

these circumstances, the district court did not abuse its

discretion in excluding mention of the alleged prior thefts.

D. Proposed Jury Instruction

Mr. Dooley next challenges the district court’s refusal to

give a proposed jury instruction with respect to Count 2

of the indictment. Count 2 alleged that Mr. Dooley violated 18 U.S.C. § 1001(a)(2) by making a false statement

to FBI agents in an interview on May 18, 2007. In that
No. 08-4131 19

interview, the FBI agents asked Mr. Dooley if he had

stolen the Apple Macintosh laptop. Mr. Dooley told them

that he had not stolen the laptop but, rather, had purchased it from the St. Louis Apple Store for $2,000 cash.

Approximately 30 minutes later, however, Mr. Dooley

changed his story and admitted to having stolen the

laptop.

At trial, Mr. Dooley requested the following jury instruction:

The defendant recants his false declaration when, in

the same continuous interview, he admits to investigators that his earlier declaration was false. However,

in order for the defendant to recant his testimony,

he must admit the falsities: before the interview has

been substantially affected by the statement, or

before it has become manifest to the defendant that

the false declaration has been or will be exposed to

the investigators.

R.142. The district court declined to give the requested

instruction. The jury found Mr. Dooley guilty on Count 2.

He submits that it was error for the court to decline to

give the instruction.

A defendant is entitled to a theory-of-defense jury

instruction if:

(1) the instruction represents an accurate statement of

the law; (2) the instruction reflects a theory that is

supported by the evidence; (3) the instruction

reflects a theory which is not already part of the

charge; and (4) the failure to include the instruction

would deny the appellant a fair trial.
20 No. 08-4131

United States v. Eberhart, 467 F.3d 659, 666 (7th Cir. 2006)

(quoting United States v. Buchmeier, 255 F.3d 415, 426 (7th

Cir. 2001)). Mr. Dooley’s proposed instruction fails to

satisfy the first and second requirements. The proposed

instruction was not an accurate statement of the law in

this circuit. In United States v. Beaver, 515 F.3d 730, 742 (7th

Cir. 2008), we expressly held that “§ 1001 contains no

recantation defense.” Mr. Dooley’s instruction also was

unsupported by the evidence in the case. The instruction

proposed a recantation defense when the defendant

recants “before it has become manifest to the defendant

that the false declaration has been or will be exposed to

the investigators.” R.142. The undisputed evidence in this

case, however, establishes that Mr. Dooley recanted his

statement about the laptop only after investigators confronted him with a receipt proving that the laptop

had been purchased by the bank robber, Larry Fielding.

Thus, the facts in this case did not support the proposed

instruction.

For these reasons, the district court did not err in declining to deliver the proposed instruction.

E. Sentencing

Because we are reversing Mr. Dooley’s conviction on

Count 3, we must vacate his sentence and remand the case

for resentencing. See United States v. Shah, 559 F.3d 643,

644 (7th Cir. 2009) (“[A]lthough he received concurrent

sentences . . . , [the defendant] is entitled to a shot at

persuading the judge to give him a lighter sentence in

view of the acquittal that we are directing.”). Accordingly,
No. 08-4131 21

we need not address Mr. Dooley’s objection to the reasonableness of his original sentence.

Conclusion

For the reasons set forth above, we affirm Mr. Dooley’s

conviction on all of the counts in the indictment except

Count 3. We reverse his conviction on Count 3 and remand

to the district court with instructions to enter an order

of acquittal on that count. Mr. Dooley’s sentence is

vacated and the case is remanded to the district court

for resentencing.

AFFIRMED in PART, REVERSED in PART,

VACATED and REMANDED with INSTRUCTIONS

8-20-09