In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2297

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ONDRAY McKNIGHT,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:07-cr-00263-4—Rebecca R. Pallmeyer, Judge.

ARGUED SEPTEMBER 29, 2011—DECIDED NOVEMBER 22, 2011

Before RIPPLE, MANION and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. After a four-year investigation

by the Drug Enforcement Administration (“DEA”) and

the Chicago Police Department, a grand jury indicted

Ondray McKnight and six codefendants for various

offenses arising from the organized distribution of controlled substances. Mr. McKnight was charged with one

count of conspiracy to distribute a controlled substance,

21 U.S.C. § 846, and two counts of using a communication
2 No. 10-2297

facility (a telephone) to distribute a controlled substance, 21 U.S.C. § 843(b). Mr. McKnight pleaded not

guilty, and a jury convicted him on the conspiracy and one

of the communication counts. He was acquitted of the

other communication count. The district court sentenced Mr. McKnight to 300 months’ imprisonment to be

followed by a ten-year term of supervised release. It also

imposed a fine of $1,000, which it ordered paid through

the Inmate Financial Responsibility Program (“IFRP”).

Mr. McKnight now appeals. He claims that a jury instruction relating to the Government’s use of deceptive

investigative practices was improper and confusing.

He also challenges the district court’s order that he participate in the IFRP. We conclude that the district court

acted within its discretion in giving the instruction and

that, in any event, the instruction was not prejudicial to

Mr. McKnight. Further, the parties correctly agree that

participation in the IFRP is voluntary and that the sentence

must be modified in that respect. Accordingly, we affirm

Mr. McKnight’s conviction and modify his sentence

with regard to the IFRP.

I

BACKGROUND

A. Facts

In 2003, a confidential informant provided information

to the DEA that led to an investigation of Victor Thompson, a high-ranking member of the Gangster Disciples

gang. Thompson managed a drug distribution network
No. 10-2297 3

Thompson’s network was based near the intersection of 1

116th Street and Stewart Avenue, but extended south from

115th Street to 119th Street and east from Halsted Street to

Wentworth Avenue.

that operated in a residential neighborhood on the south

side of Chicago. Thompson’s network included various 1

other individuals—some gang members, some not—who

worked as dealers selling heroin, cocaine base and marijuana; suppliers providing drugs either directly to

dealers or to Thompson for repackaging; and lookouts

to warn other members of the conspiracy of nearby

police officers. Members of Thompson’s network frequently carried firearms and allegedly were involved in,

although not indicted for, theft, robbery, kidnapping and

other crimes.

During their four-year investigation into Thompson’s

network, DEA agents and officers of the Chicago Police

Department gathered evidence by using techniques that

have become common in the drug context: confidential

informants, undercover officers, controlled buys, surveillance and wiretapping. As part of that effort, the

Government obtained wiretap warrants in 2006 for

several phones, including one belonging to Shawn

Denton, who later became the Government’s chief witness in this case. Law enforcement agents intercepted

hundreds of phone calls related to the conspiracy. They

also conducted controlled buys from numerous

members of Thompson’s network, including Denton,

but none from Mr. McKnight.
4 No. 10-2297

The investigation ended in 2007, with the Government’s

filing a criminal complaint against eight individuals. A

grand jury returned a thirty-count indictment against

Mr. McKnight and six codefendants that included charges

of conspiracy, narcotics distribution, using telephones

in furtherance of the conspiracy and weapons offenses.

Thompson and Mr. McKnight’s other codefendants

accepted plea agreements at various points in the proceedings. Mr. McKnight pleaded not guilty and proceeded

to trial.

B. District Court Proceedings

At Mr. McKnight’s trial, the Government introduced

the testimony of three witnesses: DEA Agent Fernando

Cervantes, who testified about the investigation of the

Thompson drug operation; DEA chemist Robert Krefft,

who testified very briefly and generally about cocaine

and cocaine base (or “crack”); and Denton. Denton, who

had been indicted on six charges, was cooperating with

the Government in exchange for a favorable sentencing

recommendation. As the Government’s principal witness

at trial, Denton provided testimony about the Gangster

Disciples, Thompson’s drug operation and Mr. McKnight’s

specific role in it, as well as his interpretation of the

wiretap recordings.

Denton testified that Mr. McKnight began supplying

Thompson’s network with drugs in 2006. Mr. McKnight

originally paid Thompson a weekly fee of $1,500 to provide Thompson’s dealers with heroin, cocaine base

and marijuana. After three months, Thompson sought to
No. 10-2297 5

For example, Denton testified that the phrase “our side” 2

referred to crack. Trial Tr. vol. 2, 193, 203, Oct. 6, 2009.

Similarly, Denton testified that “on the other side” meant

heroin, id. at 202-03, and “personal” and “girlfriend” were

code words for a firearm, id. at 221-23.

increase his share of the profit by having Mr. McKnight

supply him with wholesale quantities of heroin, which

he would then repackage and distribute to his dealers.

Mr. McKnight continued to supply Thompson’s dealers

directly with cocaine base and marijuana.

During Denton’s direct examination, the Government

played for the jury (and provided transcripts of) thirtyseven phone calls related to the conspiracy. Denton

testified that he and other members of Thompson’s network spoke in code to avoid detection by police; he

deciphered these recorded conversations for the jury.2

Denton also identified Mr. McKnight as a participant in

twenty-eight of the calls and a topic of conversation in another seven calls, all of which implicated

Mr. McKnight in illegal activity.

The Government also played recordings from several

controlled buys in which an informant purchased drugs

from Denton while wearing a hidden microphone.

Denton identified Mr. McKnight as the source of the

drugs he sold to the informant in those transactions.

Counsel for Mr. McKnight sought to undermine

Denton’s testimony as self-serving and unreliable.

Throughout the trial, counsel focused on Denton’s criminal activities and the favorable sentencing recommenda-
6 No. 10-2297

tion he expected to receive from the Government in

exchange for his testimony. Mr. McKnight did not put on

any evidence. 

During the jury instruction conference, the Government proposed the following jury instruction:

Sometimes the government uses undercover

agents and undercover informants who may

conceal their true identities in order to investigate

suspected violations of law. In the effort to

detect violations of the law, it is sometimes necessary for the government to use ruses, subterfuges

and employ investigative techniques that deceive.

It is not improper or illegal for the government

to use these techniques, which are a permissible

and recognized means of criminal investigation.

Whether or not you approve of such techniques[]

should not enter into your deliberations

in any way.

R.227 at 38.

Mr. McKnight’s attorney objected, contending that

the principal case on which the Government relied to

support the instruction, Lewis v. United States, 385 U.S. 206

(1966), was inapposite and that the defense had not

called the Government’s investigative techniques into

question. The Government responded, “Judge, this is in

here because, of course, the government did put on evidence of wiretaps and undercover agents and informants.

And some jurors have issues with the government’s

use of those techniques in general.” Trial Tr. vol. 3, 394,

Oct. 7, 2009. Without further discussion, the district court
No. 10-2297 7

overruled the objection, stating, “I have given this instruction before. I don’t think it’s particularly problematic.” Id. The district court included the language, with

minor technical and grammatical adjustments, in its

final instructions to the jury.

The jury convicted Mr. McKnight of conspiracy to distribute a controlled substance and of one count of using

a communication facility to distribute a controlled substance. After denying Mr. McKnight’s motion for judgment of acquittal and subsequent motion for reconsideration, the district court sentenced him to 300 months’

imprisonment for conspiracy and 48 months’ imprisonment for the communication count, to be served concurrently, followed by a ten-year term of supervised release. The court further imposed a special assessment

of $200, due immediately, and a fine of $1,000 to be

paid from prison earnings through the IFRP.

II

DISCUSSION

Mr. McKnight raises two arguments on appeal. First,

he claims that the district court erred by giving the Government’s proposed “deceptive investigative techniques” jury instruction and that the error was sufficiently substantial to have prejudiced the outcome of

his trial. Second, he challenges the district court’s order

that he participate in the IFRP.
8 No. 10-2297

A. Deceptive Investigative Techniques Instruction

At issue is the instruction that advised the jury that

deceptive investigative techniques are lawful and that

forbade jurors from letting their personal disapproval of

such techniques influence their deliberations in any way.

Mr. McKnight contends that the instruction is not an

accurate statement of the law and is unsupported by the

record. He claims that giving the instruction prejudiced

his defense by confusing the jury about its obligation to evaluate Denton’s credibility. The Government

counters that the instruction is supported by Lewis, 385

U.S. at 208-09, and that, in any event, the instruction did

not prejudice Mr. McKnight’s defense.

We engage in a limited review of jury instructions,

asking only “ ‘if the instructions as a whole were

sufficient to inform the jury correctly of the applicable

law.’ ” United States v. Curry, 538 F.3d 718, 731 (7th Cir.

2008) (quoting United States v. Woods, 148 F.3d 843, 849 (7th

Cir. 1998)). “We . . . review de novo whether a particular

instruction was appropriate as a matter of law.” United

States v. Borrasi, 639 F.3d 774, 781 (7th Cir. 2011). “ ‘If the

instructions are adequately supported by the record and

are fair and accurate summaries of the law, the instructions will not be disturbed on appeal.’ ” Curry, 538 F.3d at

731 (quoting United States v. Lanzotti, 205 F.3d 951, 956

(7th Cir. 2000)). We review the district court’s decision to

give a particular instruction for an abuse of discretion,

United States v. Tanner, 628 F.3d 890, 904 (7th Cir. 2010),

affording substantial discretion to its choice of wording,

United States v. Noel, 581 F.3d 490, 499 (7th Cir. 2009).
No. 10-2297 9

Reversal is warranted “only if it appears both that the

jury was misled and that the instructions prejudiced the

defendant.” Curry, 538 F.3d at 731; see also Borrasi, 639

F.3d at 781.

1.

Mr. McKnight contends that our decision in United

States v. Childs, 447 F.3d 541 (7th Cir. 2006), demonstrates

that the jury instruction in question is an inaccurate

statement of the law. He submits Childs as support for

the proposition that the jury may consider the investigative techniques of law enforcement in its deliberations.

We cannot accept this reading of Childs.

In Childs, the Government relied on the testimony of

several informants who, after purchasing drugs in controlled buys at the behest of law enforcement, had concealed some of the drugs for their own use. Although the

prosecutor knew of this well in advance of trial, the

Government failed to share that impeachment information with the defendant before trial. Id. at 542-44. We

held that the prosecutor had failed to turn over Brady

material, but concluded that the defendant was not prejudiced by the failure. Id. at 545. Despite the prosecutor’s

complicity, the information came out at trial, and the

defendant was able to use it to impeach the Government’s witnesses. Id. The issue of whether the jury can

consider the Government’s use of deceptive investigative

techniques simply was not before us in Childs.

The Government relies primarily on Lewis, 385 U.S. at

208-09, to support the legal accuracy of the instruction.
10 No. 10-2297

In Lewis, the Supreme Court held that a federal

narcotics agent did not violate the Fourth Amendment

when he misrepresented his identity and conducted

an undercover purchase of narcotics from the defendant

in the defendant’s home. Id. at 206-07. The Supreme

Court noted that “it has long been acknowledged . . . that,

in the detection of many types of crime, the Government

is entitled to use decoys and to conceal the identity of

its agents.” Id. at 208-09 (internal citations and footnote

omitted); see also United States v. Peters, 153 F.3d 445, 464

(7th Cir. 1998) (Easterbrook, J., concurring) (“Police

engage in deceit all the time in order to induce suspects

to reveal evidence. . . . Deception plays an important

and legitimate role in law enforcement.”).

We believe that the Government’s position is correct.

Although Lewis did not address specifically jury instructions, we believe the Supreme Court’s holding makes

quite clear that the statement of law contained in the

instruction before us is correct.

2.

We now turn to Mr. McKnight’s further contention

that the instruction, even if a correct statement of the

law, was not appropriate in the context of this case.

In Mr. McKnight’s view, the instruction barred

the jury from evaluating fully the credibility of Denton’s

testimony about Thompson’s operations and about the

meaning of coded telephone calls recorded during the

investigation. He submits that the instruction effectively
No. 10-2297 11

permitted Denton to lie about Thompson’s operations

and about the interpretation of the phone calls. The

jury was prohibited from considering, Mr. McKnight

continues, that Denton could have been lying about the

interpretation of those calls because his interpretation

was also part of the investigation.

For its part, the Government takes the view that

the district court simply recognized that the jurors were

aware of the deceptive techniques employed by the

Government and that some jurors might be expected

to have negative opinions about the Government’s engaging in such practices. It contends that the district

court acted well within its discretion in giving the instruction in order to ensure that the jurors understood

that their disapproval of the Government’s methodologies was not relevant to their task.

We approach our review of the district court’s decision

mindful that tailoring jury instructions to ensure that

the case is submitted to the jury in a full and fair manner

is a quintessential task of the trial court. See Noel, 581

F.3d at 499 (“We . . . give the district court substantial

discretion to formulate the instructions . . . .”). The

judicial officer who presides over the entire trial proceedings, observes the witnesses, hears the substance

and tone of counsels’ arguments and both watches and

assesses the jury’s reactions is in the best position to

determine the need for, and the scope of, any cautionary

instructions with respect to the evidence. See Curry, 538

F.3d at 728.

We think that the decision as to whether to give this

particular instruction is especially within the province
12 No. 10-2297

The relevant instructions in Shields were as follows: 3

The government has offered evidence in the form

of tape recordings of conversations with the defendants. These recordings were made without the knowledge of the defendants, but (1) either with the consent

and agreement of one or the other parties to the conversations, (2) by order of a judge in this building.

The use of these procedures to gather evidence is

perfectly lawful and the government is entitled to use

the tape recordings in this case.

* * *

You have heard testimony from a cooperating

witness who was employed by the government in an

(continued...)

of the presiding trial judge. There will be times when

circumstances arising during trial will counsel in favor

of giving such an instruction. Some of these occurrences

may be perceptible to us from the trial record; others,

such as the facial expressions of the jurors or similar

manifestations of disapproval, will be apparent only to

the trial judge. At times, circumstances grounded in

recent local events or local culture, of which the trial

judge is especially cognizant, similarly might make the

giving of such an instruction prudent. A trial court’s

obligation includes taking note of all such situations

and acting to preserve the integrity of the record.

As the Government notes, this type of instruction is not

new to this Circuit. In United States v. Shields, No. 90 CR

1044, 1992 WL 43239 (N.D. Ill. Feb. 20, 1992), Judge Rovner

gave a similar instruction and, on a post-trial motion 3
No. 10-2297 13

(...continued) 3

undercover capacity. There is nothing improper or

illegal with the government using these techniques.

Indeed, certain types of evidence would be extremely

difficult to detect without the use of such witnesses.

Whether or not you approve of the use of undercover

work to defect [sic: detect] unlawful activities is not

to enter into your deliberations in any way. If you are

satisfied beyond a reasonable doubt that the defendants

committed the offenses charged in the indictment, the

circumstance that the government made use of undercover work is irrelevant to your determination.

United States v. Shields, 90 CR 1044, 1992 WL 43239, at *19 (N.D.

Ill. Feb. 20, 1992) (alterations in original).

The parties have identified no appellate case where a similar 4

instruction has been evaluated against a similar challenge.

The closest instruction appears to be in United States v. Carona,

(continued...)

for acquittal, determined that the instruction was appropriate because

[t]he defendants themselves tended to place the

propriety of the government’s investigative techniques in issue at trial through their repeated ad

hominem attacks upon [the Government’s cooperating witness], references to him being “programmed” by the government, and description of

[a lawsuit filed by the FBI to ferret out corruption

in the Illinois judicial system] as a “phony case.”

Id. at *19. In Shields, the defendant challenged the Gov- 4
14 No. 10-2297

(...continued) 4

630 F.3d 917, 924 (9th Cir. 2011), amended by No. 09-50235, ___

F.3d ___, 2011 WL 5041911 (9th Cir. Oct. 25, 2011), in which

the jury was informed “that the government ‘is not precluded

from engaging in stealth and deception, such as the use of

informants, in order to apprehend persons who have engaged

in criminal activities.’ ” The defendant in Carona had alleged

prosecutorial misconduct, specifically, that a confidential

informant was used to obtain information from the defendant

after the defendant retained an attorney to represent him

during the investigation and prosecution. The appellate court

found that there was no misconduct, and, therefore, that the

district court did not abuse its discretion in limiting the defendant’s request to introduce evidence of the alleged misconduct. The Ninth Circuit held that it was “[s]imilarly” not

an abuse of discretion for the district court in that case to

instruct the jury that the Government may lawfully engage

in deceptive investigation techniques. Id.

ernment’s use of deceptive investigative techniques. That

factor no doubt constituted a more obvious case for

judicial guidance to the jury. Yet the absence of such a

factor in the present case does not, of course, absolve the

presiding judicial officer from deciding whether the

jury’s knowledge of the use of such techniques might

affect the integrity of the jury’s deliberations.

At first glance, it might appear that the decision to

give this instruction would be a rather straightforward

one. After all, the techniques employed by the Government in this case are common investigative practices,
No. 10-2297 15

See, e.g., Lewis v. United States, 385 U.S. 206, 209 (1966) (“[I]n 5

the detection of many types of crime, the Government is

entitled to use decoys and to conceal the identity of its agents.”);

see also United States v. Rogers, 587 F.3d 816, 818 (7th Cir. 2009)

(describing a police officer pretending, over the Internet, to be

a 13-year-old to gather evidence of a defendant’s attempts

to entice a minor to engage in sexual activity); United States

v. Watson, 525 F.3d 583, 585-86 (7th Cir. 2008) (discussing the

FBI’s use of an informant to elicit incriminating statements

from a robbery suspect); United States v. Balistrieri, 779 F.2d

1191, 1206-07 (7th Cir. 1985) (noting the use of confidential

informants, surveillance, undercover law enforcement, wiretaps and surreptitious recordings in an organized crime investigation). Further, law enforcement officials are permitted

to, and often do, use “strategic deception” to elicit confessions.

Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Ploys to mislead a

suspect or lull him into a false sense of security that do not rise

to the level of compulsion or coercion to speak are not within

Miranda’s concerns.”); see also United States v. Montgomery, 555

F.3d 623, 632 (7th Cir. 2009) (“[P]recedent holds that a police

officer may actively mislead a suspect prior to obtaining

a statement or confession so long as a rational decision [to

confess] remains possible.” (internal quotation marks omitted)).

used to investigate all manner of crimes. Such tech- 5

niques are particularly prevalent in dealing with “organized criminal activities that are characterized by covert

dealings with victims who either cannot or do not protest.” Lewis, 385 U.S. at 210. Narcotics trafficking is a

“prime example.” Id. Surreptitious investigatory practices

are frequently used to gather evidence of the manufacture
16 No. 10-2297

See, e.g., United States v. Childs, 447 F.3d 541, 542 (7th Cir. 2006) 6

(“As is fairly common in drug cases, a part of the government’s

evidence . . . came from codefendants who flipped on [the

defendant] and confidential informants who made controlled

buys of drugs from [the defendant] or his cohorts.”); see

also United States v. Freeman, 650 F.3d 673, 676 (7th Cir. 2011)

(discussing a drug investigation involving “video surveillance, garbage pulls, controlled buys, and confidential informants”). 

or distribution of controlled substances. Given the preva- 6

lence of deceptive investigative practices, it might be

argued that an instruction on their permissibility should

be given as a matter of course. There can be no doubt

that, in some instances, the instruction can serve as a

useful, or even necessary, tool to focus the jury on its

task and to remind it that, like the presiding judge, it has

no roving commission to express disapproval of law

enforcement techniques that are acceptable under established legal principles.

There are, however, countervailing considerations. We

have recognized, for instance, that the giving of unnecessary instructions raises the distinct possibility of cluttering the instructions taken as a whole and, consequently,

deflecting the jury’s attention from the most important

aspects of its task. See, e.g., United States v. Hill, 252 F.3d

919, 923 (7th Cir. 2001) (“Unless it is necessary to give

an instruction, it is necessary not to give it, so that the

important instructions stand out and are remembered.”).

There is also a possibility that singling out this aspect

of the case might be interpreted by the jurors as at least
No. 10-2297 17

indirect approval of the effectiveness of the Government’s management of the investigation.

The decision as to whether to give an instruction such

as the one in question, of course, must be the product of

an affirmative act of judicial discretion. Our difficulty

here is that the district court did not elaborate on its

reasons for giving the instruction. It is clear, however,

that the court had the opportunity to focus on the possibility of juror prejudice from the Government’s use of

wiretaps in its investigation upon the Government’s

earlier submission of a motion to forbid defense counsel

from suggesting jury nullification based on “[o]utrageous

Government [c]onduct.” R.229 at 6. In considering the

instruction in question, the court was alerted specifically

to the Government’s specific concern about the effect

of wiretap evidence.

Although the record provides very little affirmative

information on the district court’s reasoning for giving

the instruction in question, we see nothing in this

record to indicate that its decision to give the instruction

constitutes an abuse of discretion. As Mr. McKnight

forcefully argues, Denton’s testimony was central to

the Government’s case. We do not share, however,

Mr. McKnight’s concern that jurors might have understood the challenged instruction to mean that they

must take Denton’s testimony at face value. First, the

district court explicitly instructed the jurors that Denton

was “hoping to receive benefits from the government[,]

namely, a reduced sentence in this case” and that they

should “give the testimony of Mr. Denton such weight
18 No. 10-2297

We note that Denton sold drugs to a confidential informant 7

on several occasions. However, this activity makes Denton a

target of the Government’s investigation, not an accessory to

the Government’s subterfuge. 

as [they] feel it deserves, keeping in mind that it must be

considered with caution and great care.” Trial Tr. vol. 4,

458, Oct. 8, 2009. This instruction underscored information

the jury already had been provided; Denton testified about

the terms of his deal with the Government on both direct

and cross-examination, and Mr. McKnight’s counsel

questioned his credibility repeatedly and aggressively.

Second, the challenged instruction refers to “undercover

agents and undercover informants who may conceal

their true identities” and to “ruses, subterfuges, and . . .

investigative techniques that deceive.” Id. at 465-66.

Denton was neither an undercover agent nor an

informant, nor did he assist in any Government ruse or

subterfuge. He was arrested for his role in the con- 7

spiracy and cooperated only after the Government had

concluded its investigation and initiated the prosecutions. We therefore cannot conclude that the challenged

instruction prejudiced Mr. McKnight’s defense.

B. Compelled Participation in the IFRP

At sentencing, the district court imposed a fine of $1,000

and directed Mr. McKnight to make payments through

the IFRP. Because Mr. McKnight did not challenge this

portion of his sentence before the district court, we

review for plain error. See United States v. Munoz, 610 F.3d
No. 10-2297 19

989, 997 (7th Cir. 2010). The Government concedes that

sentencing Mr. McKnight to participate in the IFRP constitutes plain error. We agree.

We have described the IFRP as a program

under which staff members from the Bureau of

Prisons assist inmates in developing plans to

meet their financial obligations. See 28 C.F.R.

§ 545.10. Inmates who do not participate may

lose a number of privileges identified in 28 C.F.R.

§ 545.11(d), which include participating in [a

certain] prison job training program, furloughs,

and outside work details, and having higher

commissary spending limits, access to higherstatus housing, and access to community-based

programs.

United States v. Boyd, 608 F.3d 331, 333 (7th Cir. 2010). We

have held that the IFRP is a voluntary program, and,

therefore, an order compelling an inmate’s participation

is plain error. See Munoz, 610 F.3d at 997; Boyd, 608

F.3d at 334 (“The IFRP can be an important part of

a prisoner’s efforts toward rehabilitation, but strictly

speaking, participation in the program is voluntary. . . .

[A]n inmate in the Bureau of Prisons’ custody may lose

certain privileges by not participating in the IFRP, but

the inmate’s participation cannot be compelled.”).

To correct this error, Mr. McKnight requests only modification of his sentence. Such action is consistent with

Munoz and Boyd. In both cases, we modified the sentence

rather than remanding it to the district court. Munoz, 610

F.3d at 997; Boyd, 608 F.3d at 335. We also modify the
20 No. 10-2297

sentence here by striking the mandatory requirement

that Mr. McKnight participate in the IFRP.

Conclusion

We conclude that the district court did not commit

reversible error by issuing the deceptive investigative

practices jury instruction in this case. We therefore

affirm Mr. McKnight’s conviction. However, the district court should not have ordered Mr. McKnight’s

participation in the IFRP. Accordingly, we modify his

sentence by striking that requirement.

AFFIRMED as MODIFIED

11-22-11