In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1691

United States of America,

Plaintiff-Appellee,

v.

Darwin Montana,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 CR 54--Milton I. Shadur, Judge.

Argued October 29, 1999--Decided December 16, 1999

 Before Posner, Chief Judge, and Flaum and Diane P.

Wood, Circuit Judges.

 Posner, Chief Judge. The defendant was convicted

of bank robbery and related offenses and given a

very long sentence--almost 30 years. James Dodd

committed the actual robbery; Montana drove the

getaway car. Dodd pleaded guilty, and testified

at Montana’s trial, as Montana’s witness, that

Montana had not known that Dodd was planning to

rob the bank. Shortly before the end of the

trial, Dodd gave Montana’s lawyer a note for

Montana’s mother, who after she read it told the

lawyer that the note demanded money in exchange

for Dodd’s having testified favorably to Montana.

The following morning, a deputy U.S. marshal

heard Dodd tell Montana to tell Montana’s father

that "it’s going to be $10,000" for the favorable

testimony. The district judge allowed the marshal

to testify to what he had heard. He also

permitted the jury to learn that Dodd had passed

a note to Montana’s mother, but not that

Montana’s lawyer had been the courier.

 Montana complains primarily about his lawyer’s

having passed the note from Dodd, which he says

made the lawyer’s representation of him

incompetent, and about the marshal’s being

permitted to testify to Dodd’s out-of-court

statement, which he claims was inadmissible

hearsay. The note has a twofold significance so
far as the adequacy of Montana’s representation

was concerned. First, had the jury learned that

Montana’s lawyer had conveyed a demand for a

bribe, it might have inferred that the lawyer was

complicit in the demand, and this would have

totally discredited him in the jurors’ eyes. This

danger was averted by the judge’s refusal to

allow the jury to discover the lawyer’s role in

the passing of the note. Second, however, the

lawyer’s discovery that he had been the

instrument for conveying a bribe demand might

conceivably have intimidated him into providing

less than vigorous representation for Montana,

fearing that if he were too effective the

government would retaliate by accusing him of

being complicit in the bribe demand, that is, of

knowing what was in the note. In so arguing

Montana is appealing to a line of cases which

hold that a lawyer who is under investigation by

the Department of Justice has a conflict of

interest in representing a person whom the

Department is prosecuting if the lawyer is afraid

of retaliation should he press his client’s

defense too vigorously. Thompkins v. Cohen, 965

F.2d 330, 332 (7th Cir. 1992); cf. United States

v. Levy, 25 F.3d 146, 156 (2d Cir. 1994); United

States v. Cancilla, 725 F.2d 867, 870 (2d Cir.

1984).

 The mere fact of being under investigation by

the prosecutors of the lawyer’s client does not

create a fatal conflict, we have held, United

States v. Hubbard, 22 F.3d 1410, 1418 (7th Cir.

1994); Thompkins v. Cohen, supra, 965 F.2d at

332; Cerro v. United States, 872 F.2d 780, 785-86

(7th Cir. 1989), though the Eleventh Circuit

appears to differ. See United States v. McLain,

823 F.2d 1457, 1464 (11th Cir. 1987)

(acknowledged, on other grounds, as defunct, in

United States v. Watson, 866 F.2d 381, 385 n. 3

(11th Cir. 1989)). An actual fear of retaliation

must be shown. See Thompkins v. Cohen, supra, 965

F.2d at 332. It was not shown here and anyway

Montana’s lawyer was not under investigation. He

may have feared that he would be investigated if

he didn’t pull his punches, but this is pure

speculation which Montana has made no effort to

substantiate. There is not only no indication

that the lawyer pulled his punches; there is no

hint that anyone suspected him of having read the

note before transmitting it to Montana’s mother.

It may seem, may indeed be, irregular for a

lawyer to be conveying a message from a jailhouse

inmate not his client to his client’s mother,

since prisons rightly insist on inspecting

ongoing mail that is not privileged. But remember

that Dodd was a friendly witness, whose testimony

had sought to exonerate Montana. It was natural

though inappropriate and quite possibly improper

for Montana’s lawyer to want to accommodate Dodd
to the extent of carrying a note from him. He had

no reason to believe that the note was a demand

for a bribe, and so far as appears he was not in

jeopardy of being prosecuted for having passed

the note. As in Stoia v. United States, 109 F.3d

392, 395 (7th Cir. 1997), there is no basis for

an inference that he was intimidated by a threat

of prosecution if he didn’t pull his punches in

defending his client.

 Montana also complains about his lawyer’s

decision to call Dodd as a witness, for he proved

to be uncontrollable and while attempting to

exonerate Montana made various inculpatory

statements. He also repeated statements that

Montana had made to him, and this opened the door

for the government to impeach the out-of-court

declarant (Montana) with his extensive criminal

record. United States v. Stefonek, 179 F.3d 1030,

1036 (7th Cir. 1999); United States v. Robinson,

783 F.2d 64, 67 (7th Cir. 1986); United States

v. Moody, 903 F.2d 321, 328 (5th Cir. 1990). But

to criticize Montana’s lawyer for calling Dodd is

rank Monday morning quarterbacking. Dodd was the

only witness Montana had, and he tried to

exonerate him. Had Montana’s lawyer failed to

call Dodd, Montana would have a stronger case of

ineffective assistance of counsel than he has.

Dodd’s testimony actually helped Montana, at

least a little, for the jury acquitted him of the

charge of having conspired with Dodd to rob the

bank.

 The only other issue that requires discussion

(Montana’s challenge to the sentence has no

possible merit) is the admissibility of the

marshal’s testimony that Dodd had told Montana

that the price of Dodd’s favorable testimony was

$10,000. The government argues that it was

admissible as a "verbal act," see, e.g., United

States v. Thomas, 86 F.3d 647, 653 n. 12 (7th

Cir. 1996); United States v. Robinzine, 80 F.3d

246, 252 (7th Cir. 1996); Twin City Fire Ins. Co.

v. Country Mutual Ins. Co., 23 F.3d 1175, 1182

(7th Cir. 1994); United States v. Murphy, No. 98-

2035, 1999 WL 756846, at *3-*4 (1st Cir. Sept.

30, 1999); United States v. Roach, 164 F.3d 403,

410 (8th Cir. 1998), thus echoing the linguist’s

distinction between performative and

illocutionary utterances. The latter narrate,

describe, or otherwise convey information, and so

are judged by their truth value (information is

useful only if true--indeed is information only

if it is true); the former--illustrated by a

promise, offer, or demand--commit the speaker to

a course of action. Performative utterances are

not within the scope of the hearsay rule, because

they do not make any truth claims. Had the

marshal overheard Dodd tell Montana, "your father

has promised me $10,000," Dodd’s overheard
statement would have been hearsay, because its

value as evidence would have depended on its

being truthful, that is, on such a promise having

actually been made. But what in fact was

overheard was merely a demand--in effect, "give

me $10,000"--and so the only issue of credibility

was whether the marshal was reporting the demand

correctly, and his testimony was not hearsay.

Affirmed.