United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 7, 2010∗

 Decided October 12, 2010

Before

FRANK H. EASTERBROOK, Chief Judge

MICHAEL S. KANNE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 10-1964

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROSS A. CAPUTO andROBERT M. RILEY,

Defendants-Appellants.

Appeal from the United 

States District Court for the 

Northern District of Illinois, 

Eastern Division.

No. 03 CR 126 – 1,2

Ruben Castillo, Judge.

Order

Well after the trial ended, the prosecutor informed Ross Caputo and Robert 

Riley that Shayne Gad, one of the witnesses, had committed perjury by falsely claiming 

military experience and decorations. The witness’s testimony did not involve his 

military service (he testified as a toxicologist), but the false claim of extra credentials 

may have made him more believable in the jurors’ eyes. Caputo and Riley then filed a 

motion for a new trial. The district judge denied this motion, remarking that even if the 

witness had never testified, the jury’s verdict could not have been affected.

 

∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After 

examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. 

App. P. 34(a); Cir. R. 34(f).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 10-1964 Page 2

The principal argument on appeal is that the district judge used the wrong 

standard by asking whether there was a “reasonable probability” that Gad’s lies about 

his military service affected the verdict. The proper inquiry, appellants contend, is 

whether there was “some likelihood” that truthful testimony would have changed the 

verdict. We need not decide which standard should have been used, because the district 

judge sensibly concluded that there was no chance of an effect.

Defendants were charged with lying to the Food and Drug Administration and 

selling a misbranded medical device. Our opinion affirming their convictions provides 

details. United States v. Caputo, 517 F.3d 935 (7th Cir. 2008). In addition to denying the 

charges made in the indictment, defendants offered what they called a “good-faith 

defense”: that they honestly believed that the device was safe for the uses they 

promoted. The prosecutor asked the district judge to rule out this line of evidence and 

argument, contending that good faith is not a defense to a charge of fraud. The judge 

allowed defendants to present this defense. Gad testified in rebuttal, in an effort to 

show that defendants could not reasonably have held the belief they claimed to have 

held.

On appeal, defendants contended that the jury instructions on this “good-faith 

defense” favored the prosecutor unduly. We rejected that argument on the ground that 

“good faith” is not a defense to fraud, and that the district judge erred by submitting 

this question to the jury in the first place. 517 F.3d at 942. Since Gad’s testimony was 

relevant only to a defense that should not have been allowed, the overstatement of his 

credentials is not a reason to hold a new trial.

Defendants observe that the defense was allowed in fact, and they insist that, if 

the jurors had known the truth about Gad’s background (or if he had not testified), 

they might have voted to acquit on at least some counts. But no defendant is entitled to 

a better shot at talking jurors (or judges) into making a legal error. See, e.g., Lockhart v. 

Fretwell, 506 U.S. 364 (1993). No litigant has a vested right to hold onto the benefits of 

an error. Yet Caputo and Riley not only want to hold onto the benefits of the error but 

also seek to increase them, using the unduly favorable decision at the trial as a fulcrum 

for obtaining an acquittal at a second trial. Had this case been properly handled at trial, 

“good faith” would not have been an issue and Gad would not have testified. It would 

be pointless to hold a second trial at which good faith will not be allowed as a defense, 

and neither Gad nor any substitute will testify.

AFFIRMED