In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1769

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT WHITE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 05 CR 79—Rudy Lozano, Judge.

____________

ARGUED SEPTEMBER 22, 2006—DECIDED DECEMBER 19, 2006

____________

Before EASTERBROOK, Chief Judge, and KANNE and

SYKES, Circuit Judges.

KANNE, Circuit Judge. The defendant appeals a conviction for multiple counts of mail fraud, wire fraud, and

money laundering. The underlying fraud alleged in the

indictment was a failure to disclose a potential conflict of

interest while serving as an elected public servant in

Gary, Indiana. The defendant argues on appeal that the

district court erred by preventing the defense from presenting its theory of the case to the jury and by committing

various sentencing errors. Because we find no error, we

affirm.
2 No. 06-1769

I. HISTORY

At its heart, this case is about a corrupt politician

who got caught with his hand in the cookie jar. Robert

White was an elected official in Gary, Indiana, serving on

the city’s Common Council. In the Summer of 2003 there

was a drowning in Gary at the beach where Lake Street

arrives at the Lake Michigan shore. Sometime shortly

thereafter, White met with Gary’s Superintendent of

Parks and the conversation turned to the need to construct a fence to prevent children from unauthorized

access to the beach in that area. The drowning, along

with the apparent ease with which children were able to

walk from a nearby school to the shore, made the project

a prime candidate for an emergency contract—that is, a

contract that would not be subject to competitive bidding

or other inconvenient scrutiny.

Fortunately for the City of Gary, White knew just the

builder for the job: a small minority-owned company

called Raycor. Unfortunately for the City of Gary, this

was all a shell game. Unbeknownst to the city, Raycor

was actually owned and operated by White’s nephew.

The $30,000 emergency fence contract was let to Raycor.

The actual fence builder, a subcontractor from across the

border in Illinois, received a mere $5,000 of the contract

amount for doing all of the work. The remaining $25,000

of profit was routed through White’s nephew and eventually back into White’s bank account.

The government indicted White for numerous counts

of wire and mail fraud as well as money laundering. The

underlying conduct that the government alleged to be

fraudulent was White’s depriving the citizens of Gary of

his honest services. Specifically, the government alleged

that Indiana law required a public servant such as White

to either refrain from deriving a profit from contracts

with the City of Gary, or to disclose the details of the
No. 06-1769 3

conflict of interest. See Ind. Code § 35-44-1-3. The government’s theory was that White owed a duty of honest

services to Gary, that he defrauded Gary of his honest

services, and that he used interstate wires, banks, and

mail to accomplish that fraud.

White had stipulated that he did not file a conflict of

interest disclosure. The defense centered around an

argument that White had not owed a duty of honest

services to the Park District, which was the actual government entity that let the contract. In an apparent

effort to insulate the Park District from partisan politics,

the department is distinct from the city in various ways.

Testimony at trial included the following examples: the

Park District is overseen by a bipartisan board of commissioners who are appointed by the mayor; the district

is a special taxing district; in theory it has the ability

to raise money either through taxes or by issuing bonds;

it sets all policies for Gary parks; and it has the authority to hire and fire all Park District employees except for

the supervisor of parks.

To support this theory of the defense, White sought

a jury instruction that would have reprinted, verbatim,

Indiana’s definition of “governmental entity,” which

includes not only cities such as Gary but also special

taxing districts, boards, bureaus, commissions, committees, departments, divisions, military units, and others.

See Ind. Code § 35-41-1-12. The government objected to

the proposed jury instruction on the grounds that the

indictment only mentioned one government entity, the

City of Gary, and that the indictment alleged that White

had breached a duty to “the city of Gary and its citizens.”

In the government’s view, reading the entirety of the

Indiana Code might have confused the jury.

The district court declined to give the proposed jury

instruction but told defense counsel that he could still
4 No. 06-1769

make the argument that White’s role as Common Councilman was sufficiently disconnected from the actual Park

District decision makers. During White’s closing argument he made that argument. However, when White’s

counsel then attempted to read the statute (the same

statute that the district court had just decided not to

include as a jury instruction) the court sustained a government objection and prevented him from reciting it. White

now appeals the exclusion of his proposed jury instruction and the refusal to let him read the statute to the jury.

The jury returned a verdict of guilty on all counts, and

the court sentenced White to 63 months’ imprisonment

and restitution in the amount of $30,000. On appeal,

White argues that various sentencing enhancements

were either unconstitutional or improper. He argues that

the district court’s findings of a leadership role in the

crime, obstruction of justice, and an amount of loss in

excess of $10,000 were made in violation of the Sixth

Amendment. He argues that a sentencing enhancement

for being an elected public official was an error.

II. ANALYSIS

A. The Disconnect Argument

We review jury instructions as a whole to determine

whether they fairly and adequately represent the issues

to the jury. See United States v. Alhalabi, 443 F.3d 605,

612 (7th Cir. 2006). We review a district court’s decision

to not instruct the jury on a theory of defense de novo.

United States v. Hendricks, 319 F.3d 993, 1005 (7th Cir.

2003). A defendant is entitled to an instruction on his

theory of the defense if four conditions are met. Id. at

1005-06. Only two of those four conditions are relevant

here: the instruction must reflect a theory that is supported by the evidence and failing to include the instruc-
No. 06-1769 5

tion must deny the defendant a fair trial. Id. at 1006. As

we set out below, neither of these two prerequisites are

met, and the failure to include White’s proffered instruction was not an error.

Under Indiana’s conflict of interest laws, it is a felony

if a “public servant . . . knowingly or intentionally: (1) has

a pecuniary interest in; or (2) derives a profit from; a

contract or purchase connected with an action by the

government entity served by the public servant.” Ind.

Code § 35-44-1-3. A government servant can escape

this by filing a conflict of interest disclosure. Ind. Code

§ 35-44-1-3(c). There is no dispute between the parties that

White was a public servant of the City of Gary within the

meaning of the statute. Nor is there any dispute that the

City of Gary is a government entity. For that matter, there

is no dispute on appeal that he had a pecuniary interest

in or derived a profit from the contract.

The only significant dispute is whether the contract

was “connected with an action by the governmental entity

served by” White. It is White’s theory of the case that

the Park District is a separate governmental entity from

the City of Gary and that the contract in question was

between Raycor and the Park District—not between

Raycor and the City of Gary. To that end, he wanted the

jury instructions to include the entire definition of “government entity” so that the jury would be informed that

the Park District is also a government entity.

At the outset, we should note that we are dubious that

the rote recitation of a statute can be construed as a

“theory of defense” under Hendricks. Assuming for the

moment that cutting and pasting the statute would have

constituted a theory, White’s argument is still wide of the

mark. It is logically flawed because it presupposes that a

contract can only be “connected to” one government

entity—that by being connected to the Park District the
6 No. 06-1769

contract could not possibly have been connected to the

City of Gary as a whole. There is no doubt that the fence

contract in question was connected to the Park District;

nor is there a dispute that White was not a public servant

of the Park District. But neither of those facts is relevant

to whether the contract was also connected to the City

of Gary. This connection to the City of Gary was the only

connection alleged in the indictment. In this sense, the

jury instruction that White offered, even if it were construed as a theory, does not reflect a theory that has

any evidentiary support because it is entirely non-responsive to the conduct that was alleged in the indictment.

White also fails to demonstrate how the exclusion of the

instruction resulted in a denial of a fair trial. White was

free to base his defense on the argument that there were

numerous ways that the Park District and the Raycor

contract were independent of the City of Gary. The district

court did not prevent him from making any of those

arguments. Unfortunately for White, the government

also provided evidence that would allow a jury to find

that the Raycor contract was connected to the City of

Gary. All of that evidence was relevant to the question of

whether White defrauded the City of Gary of his honest

services. What would not have been relevant would have

been to instruct the jury on any of a number of other

government entities that were not defrauded by White.

Given the conduct alleged in the indictment and the

issues that were contended between the parties, we believe that the district court did not improperly exclude

the proffered jury instruction because it would not have

reflected a theory that was supported by the other facts

and the law and because the court granted White the

latitude to make his argument to the jury orally. The

instructions as a whole fairly and adequately represented the issues to the jury. Therefore, excluding White’s

proposed jury instruction was not a reversible error.
No. 06-1769 7

We turn then to the district court’s decision to prevent

White’s counsel from reading the entire Indiana statute

regarding government entities to the jury. The trial

judge has the “discretion to limit argument over time

consuming peripheral issues in the interests of judicial

economy and reducing juror confusion.” United States v.

Mahone, 537 F.2d 922, 928 (7th Cir. 1976). Nevertheless,

“exercising tight control over the argument is undesirable when it precludes counsel from raising a significant

issue.” Id. The question is whether the trial court abused

its discretion in deciding to prevent the recitation of the

statute to the jury.

“It is a basic premise of our legal system that juries are

the triers of fact only; it is for the judge, not the jury, to

interpret the law.” United States v. Tokash, 282 F.3d 962,

968 (7th Cir. 2002). Jury instructions are the means that

the court uses to inform the jury of the law that is relevant to the case. Although there are some circumstances

when reading the law, either statute or case law, might

be properly permitted by the court, there are few instances

where a party is entitled to read law to the jury. See

generally V. Woerner, Counsel’s Right in Criminal Prosecution to Argue Law or to Read Lawbooks to the Jury, 67

A.L.R. 2d 245; Jacob Stein, Closing Arguments § 1:69 (2d

ed. 2006). Although the selective use of statutes can be a

permissible aspect of argument, particularly when a

party might highlight certain parts of the instruction

that the jury will shortly receive from the court in written

form, a party is not entitled to read portions of the law

that the trial court has already determined to be irrelevant to the facts of the case at hand. See Wayne R.

LaFave, et al., 5 Criminal Procedure § 24.7(e) (2d ed. 1999)

(“More frequently, successful challenges to prosecutorial

argument have involved references (often accurate) to

aspects of the law that are beyond the elements considered in the judge’s charge. Indeed, those references
8 No. 06-1769

usually are to matters on which a judge would refuse to

charge a jury if requested because they detract from its

responsibility to decide the issue before it.”).

Such was the case here. The district court had already

decided to exclude the full extent of the Indiana statute

from the written jury instructions. As we noted above, that

decision was not an error. It would make little sense to

exclude a statute as potentially confusing for the jury

when provided in written form, but then allow that same

statute to be read to the jury when the potential for

confusion and misinterpretation is even greater. The court

properly provided the jury with the necessary interpretation of the law as it applied to the specific charges contained in the indictment. White was not denied the

opportunity to tell the jury that the Park District was

also a government entity—although as we noted above

that fact was logically insufficient to escape criminal

liability. He was also free to make all manner of arguments that the contract was not connected to the City

of Gary. But those arguments were met with other evidence from the government. Therefore, we believe that

it was not an abuse of discretion to limit defense counsel from reciting the statute during closing argument.

B. The Sentencing Enhancements

White also appeals his sentence. He argues that three

of the sentencing enhancements are unconstitutional and

that one enhancement was improper. We review arguments on the constitutionality of the sentence de novo.

United States v. Peters, 462 F.3d 716, 717-18 (7th Cir.

2006). In the aftermath of United States v. Booker, 543

U.S. 220 (2005), we review allegations of non-constitutional sentencing errors for reasonableness. United States

v. Cooper, 461 F.3d 850, 855 (7th Cir. 2006). If a district

court considers the factors of 18 U.S.C § 3553(a) and then
No. 06-1769 9

imposes a sentence within the correctly calculated advisory range of the Sentencing Guidelines, the sentence

is entitled to a rebuttable presumption of reasonableness

on appeal. United States v. Mykytiuk, 415 F.3d 606, 608

(7th Cir. 2005).

The crimes for which White was convicted carry a

statutory maximum of thirty years’ imprisonment on

Count 1 and twenty years’ on Counts 2 through 9. White

had no criminal history. The base offense level for fraud

by a public official is 14. U.S.S.G. § 2C1.1. After adjusting

for specific offense characteristics (plus eight), the defendant’s role in the offense (plus two), and obstruction of

justice (plus two), the district court concluded that

White’s total offense level was 26. The advisory range for

a crime with an offense level of 26 and a criminal history

category of I is 63 to 78 months. The court then sentenced White to 63 months’ imprisonment.

White argues on appeal that this sentence is unconstitutional under the Sixth Amendment as interpreted

by Blakely v. Washington, 542 U.S. 296 (2004) and

Apprendi v. New Jersey, 530 U.S. 466 (2000). He bases this

claim on the argument that the adjustments that brought

him from 14 to 26 were derived from enhancements

that the district court found by a preponderance of the

evidence and not found beyond a reasonable doubt by a

jury.

This is a frivolous argument and it ignores the effect

that Booker had on federal sentencing since Blakely. In the

aftermath of Booker, the sentencing guidelines are construed as advisory, not mandatory. Booker, 543 U.S. at

259. We have repeatedly held, as the district court attempted to clarify for defense counsel at the sentencing

hearing, that sentencing enhancements need not be

found by a jury beyond a reasonable doubt because they
10 No. 06-1769

1 In the fifteen months that elapsed between the Supreme

Court’s decision in Booker and the date that the appellant filed

the brief on this appeal, this court had the occasion to consider

and explicitly reject this argument no less than four times. See,

e.g., United States v. LaShay, 417 F.3d 715 (7th Cir. 2005)

(decided three months before White went to trial); United States

v. Bryant, 420 F.3d 652 (7th Cir. 2005) (decided two months

before White went to trial); United States v. Robinson, 435 F.3d

699 (7th Cir. 2006) (decided two months before White was

sentenced); United States v. Owens, 441 F.3d 486 (7th Cir. 2006)

(decided one month before the appellant filed his brief with this

court). This is not inclusive of the number of opinions we have

published that implicitly recognized this point of law or the

dozens of unpublished orders during the same period that

reiterated exactly this same point.

no longer alter the statutory maximum.1 Because the

sentencing factors that he challenges did not increase the

sentence beyond the statutory maximum, it was not

unconstitutional for the district court to apply them.

Accordingly, the district court did not commit any error

when it adjusted White’s sentence for facts that had not

been found by a jury.

White also argues that the four-level enhancement for

committing the crime while being an elected public official

was an error because he was not an elected official of the

Park District. This argument mirrors the “disconnect”

argument that we considered above, and it fails for the

same reasons. The enhancement is imposed if the defendant is “an elected public official.” U.S.S.G. § 2C1.1(b)(3).

The defendant stipulated that he was an elected official

of the City of Gary. The jury found him guilty of using

the wires and mail to defraud the City of Gary. It was not

an error for the district court to enhance the sentence

based on the fact that he was an elected public official.

The district court correctly calculated the advisory

Guidelines range and noted the effect that Booker had on
No. 06-1769 11

its reasoning. The applicable sentencing range was 63 to

78 months. The court sentenced the defendant within

the range, and White has provided nothing on appeal to

rebut the presumption of reasonableness that a sentence

within the Guidelines is accorded. Accordingly, we will not

vacate the sentence.

C. The Appellant’s Brief before this Court

Having considered the merits of the appeal, we are left

with one remaining issue. Federal Rule of Appellate

Procedure 30 requires that the appellant must file an

appendix that contains “the relevant docket entries in the

proceeding below . . . the relevant portions of the pleadings, charge, findings, or opinion . . . the judgment, order,

or decision in question ... [and] other parts of the record to

which the parties wish to direct the court’s attention.” Fed.

R. App. P. 30(a)(1). Our Circuit Rule 30 makes additional demands of the appellant. If the appellant challenges an oral ruling, such as sustaining the government’s

objection in this case, “the portion of the transcript

containing the judge’s rationale for that ruling must be

included in the appendix.” Cir. R. 30(b)(1). The appellant

is also required to include a “statement that all of the

materials required by parts (a) and (b) of this rule are

included.” Cir. R. 30(d).

The appellant in this case failed to accomplish any of the

above requirements. The appendix included in the appellant’s brief contained a mere five pages of Indiana statutes. There was no copy of the judgment being appealed.

There was no transcript of the rationale given by the

district court in the challenged oral decision. The appellant’s counsel then compounded these errors by incorrectly certifying to this court that the appendix complied with the procedural requirements.
12 No. 06-1769

The Federal Rule and our Circuit Rule are not created

for the purpose of imposing frivolous requirements on

attorneys who are already busy. The purpose of these

rules is to ensure that the court has “all necessary documents before it as it considers the parties’ arguments and

renders its decision.” Hill v. Porter Mem’l Hosp., 90 F.3d

220, 225-26 (7th Cir. 1996). The requirement embodied

in these rules “goes to the heart of this court’s

decision-making process.” Id. at 226. This is nothing new,

but we have become more insistent “on meticulous compliance with rules sensibly designed to make appellate

briefs as valuable an aid to the decisional process as they

can be.” Id. (citations and quotations omitted). This court’s

workload increases dramatically if an appeal is transformed into a scavenger hunt in search of a copy of the

judgment below or the transcript page where a challenged decision was explained by the district court.

We are not without remedies in this matter. In the past

we have dismissed the appeal. See Snipes v. Ill. Dep’t of

Corr., 291 F.3d 460 (7th Cir. 2002). We have refused to

consider issues that were not adequately addressed in the

briefs and appendices. See Bonds v. Coca-Cola Co., 806

F.2d 1324 (7th Cir. 1986). Some circuits have ordered

parties to resubmit their briefs with corrections. See

Alnajjar v. Ford Motor Co., 523 F.2d 6 (6th Cir. 1975). And

we have fined attorneys for their violations. See Hill, 90

F.3d at 226.

Ordering the appellant to resubmit the brief seems

counterproductive in this case. With some extra work we

have found the documents that were needed to reach a

decision on the merits. Meaningless re-submission of

documents would serve only to waste more time, albeit

the appellant’s counsel would be wasting time, not this

court. But this seems pointless. It seems likewise pointless to dismiss the appeal or to judicially ignore those
No. 06-1769 13

portions of the appeal not supported by the appendix.

Having reached the merits, we would prefer to avoid the

appearance that the appeal was rejected over formalistic

rules, when in fact the appeal fails because it has no merit.

We are left then with the question of whether the court

should fine the appellant’s attorney for violating Rule 30.

In Hill we fined appellant’s counsel $1000 for failing to

comply with Rule 30. In accordance with the Hill line of

cases we will impose a fine of $1000 on counsel for White

unless they can show that such a fine would be inappropriate under the circumstances of the case.

III. CONCLUSION

For the foregoing reasons, the judgment and sentence of

the district court are AFFIRMED. Furthermore, in accordance with Federal Rule of Appellate Procedure 46(c)

appellant’s counsel of record, are ORDERED to show cause,

within 21 days of the date of this opinion, why they should

not jointly be sanctioned by this court in the amount of

$1000 for failure to comply with Federal Rule of Appellate

Procedure 30 and Circuit Rule 30.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-19-06