In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3450

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANK ROMAN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 327—Matthew F. Kennelly, Judge.

____________

ARGUED MAY 21, 2007—DECIDED JUNE 28, 2007

____________

Before RIPPLE, WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Frank Roman was a full-time

police officer who had a part-time job working a security

detail at a “gentlemen’s club” (or, more accurately, a

strip joint) called “Heavenly Bodies” in Elk Grove, Illinois.

Heavenly Bodies paid Roman in cash—some $37,000 in

1998 and 1999. And like a lot of “cash” that changes

hands in the underground economy, Heavenly Bodies’

payments to Roman did not find their way onto his federal income tax returns for those years. This state of

affairs led to his indictment on two counts of filing a false

tax return.

Eventually, a jury convicted Roman on both counts, and

the district judge, Matthew F. Kennelly, sentenced him to
2 No. 06-3450

a term of three years probation. Roman appeals, arguing

that the government failed to prove beyond a reasonable

doubt that he willfully filed false tax returns and that the

government committed prosecutorial misconduct when it

elicited from him, during cross-examination, that as a

police officer he took an oath to uphold and enforce the

law. Finally, Roman contends that Judge Kennelly abused

his discretion by precluding an argument based on what

he characterizes as a “golden rule” appeal. Finding insufficient merit to any of these arguments, we affirm Roman’s

conviction.

The “facts” are undisputed. Roman received cash in

payment for his work at Heavenly Bodies, but he didn’t

report any of it as income on his tax returns. During

the trial, while testifying in his own behalf, Roman

explained that he didn’t think he was required to report

the cash he received at Heavenly Bodies as income on his

returns. His “defense,” if one can call it that, is that he

made a “mistake” and did not act willfully to violate the

law.

As we have said many times, a defendant who challenges

his conviction based upon an alleged insufficiency of

evidence “bears a heavy burden.” United States v. Gonzalez, 933 F.2d 417, 436 (7th Cir. 1991). A jury verdict must

be upheld unless the record contains no evidence, regardless of how it is weighed, from which the jury could find

guilt beyond a reasonable doubt. See United States v.

Cunningham, 108 F.3d 120, 121 (7th Cir. 1997).

Roman falls miles short of overcoming his “nearly

insurmountable hurdle” of establishing that the evidence

against him was insufficient. See United States v.

Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003). The jury

obviously rejected Roman’s claim that failing to report

his income from Heavenly Bodies was a “mistake.” He

knew it was “income.” He simply had no conceivable
No. 06-3450 3

defense to the charge. So we move to the final two claims

Roman raises on this appeal.

During opening statement, the AUSA prosecuting the

case for the government remarked that Roman, as a police

officer, violated his oath to uphold the law by failing to

truthfully report all of his earned income on his tax

returns:

Now, as a police officer, the defendant took an oath to

uphold and enforce the law. As a taxpayer, the defendant took an oath to truthfully report all of his income. The defendant broke his oath, and the defendant

broke the law, and that is what brings us here today.

. . . .

The defendant willfully filed a false tax return, two,

one in 1998 and one in 1999. The defendant did not

report his cash income. He broke his oath.

No objection was offered to these statements.

Subsequently, on cross-examination, the AUSA again

asked about Roman’s understanding of oaths:

AUSA: You took an oath at the beginning of

today to tell the truth, didn’t you?

Defendant: Yes, I did.

AUSA: And you understand your duty to

tell the truth, don’t you?

Defendant: Yes, ma’am.

AUSA: You took an oath as a police officer,

didn’t you?

Defendant Yes, I did.

AUSA: That was an oath to uphold the law,

right?
4 No. 06-3450

Defendant: Yes, ma’am.

AUSA: That means all of the laws, right, state,

and federal, is that correct?

Defendant: Yes, ma’am.

AUSA: And that includes the tax laws, correct?

At this point, Judge Kennelly requested a sidebar, during

which the following exchange ensued:

Judge: You anticipated something I was going to

raise before closing arguments, and

I recognize there has not been an objection, but plain error rule being what it

is, one of the things that was said in

opening was essentially a suggestion

that, as a police officer, he may have

had some higher duty than other people.

And that resonated a little bit because

of a discussion that had come up I think

with one of the jurors back in chambers.

I don’t think it is a proper argument, and

I think that’s where this is going. So this

part finishes right now.

AUSA: I am sorry. I was trying to get to truthtelling.

Judge: All right.

Nothing more was said on the point until Roman filed a

post-trial motion for judgment of acquittal or new trial,

arguing that the AUSA made improper remarks in referring to the fact that, as a police officer, Roman took an

oath to uphold the law. Judge Kennelly rejected the

argument, explaining:

At sidebar, the Court advised the prosecutor that we

did not believe her last inquiry was proper because it

suggested that Mr. Roman somehow had a higher duty

than other citizens to obey the tax laws. Government
No. 06-3450 5

counsel advised that was not her intent. The Court

had (and has) no reason to doubt her veracity. We

advised the government, however, that we would not

permit further inquiry along these lines. Following the

sidebar, the Court struck the law question and

answer—the one concerning whether Mr. Roman’s oath

as a police officer to uphold the law included the tax

laws—and directed the jury to disregard that question

and answer. The government made no reference to the

point thereafter, including during closing and rebuttal

argument.

We think Judge Kennelly could not have perceived or

handled the matter any better than he did. It was a model

of how an unobjected to, but arguably erroneous, (1)

comment made during opening statement, and (2) questions asked during cross-examination, should be handled.

We perceive no error on this record even if the areas of

inquiry were improper, a point we need not pursue because

at best it could never amount to anything above the

category of harmless.

Which brings us to the final issue Roman raises on this

appeal. Before the trial kicked off, the government filed a

motion in limine to preclude Roman from making a socalled “Golden Rule” appeal, i.e., that the jury should

place itself in his shoes. In support of its motion, the

government relied on United States v. Teslim, 869 F.2d

316, 328 (7th Cir. 1989), for the proposition that such

arguments are improper. Judge Kennelly agreed and

granted the government’s motion.

Teslim ironically involved an improper “Golden Rule”

argument by the government: “[I]f it happened to you and

you had nothing to hide—” Here, Roman was rebuffed

when he sought to argue that the jurors should put

themselves in his shoes and consider “There but for the

grace of God go I.”
6 No. 06-3450

This proposed argument was correctly foreclosed by

Judge Kennelly. As we explained in Teslim, a “Golden

Rule” appeal in which the jury is asked to put itself in

the defendant’s position “is universally recognized as

improper because it encourages the jury to depart from

the neutrality and to decide the case on the basis of

personal interest and bias rather than on the evidence.”

869 F.2d at 328.

In his brief, Roman writes:

In a tax evasion case such as this, it is a logical extension to ask the jury to think about evil versus stupid,

to speculate what they would do, were they to be

placed in the subjective shoes of the defendant. This

is precisely what “there, but for the grace of God”

requests. No more no less than the objective discernment of evil as viewed from the defendant’s subjective eyes. “God” in this context being a surrogate for

the all knowing introspective “See,” the diviner of

the secrets in men and women’s heart.

Whatever can be said about this contention, one thing is

certain: it’s not persuasive. We see no reason why the

rule against arguing about the Golden Rule should be

reconsidered in this case.

For these reasons, the judgment of the district court is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-28-07