UNITED STATES OF AMERICA v. ONDRAY McKNIGHT. No. 10-2297.

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 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.

The district court sentenced Mr. McKnight to 300 months' imprisonment to be followed by a ten-year term of supervised release.

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. 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.

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.

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.

A. Deceptive Investigative Techniques Instruction

Mr. McKnight raises two arguments on appeal. First, 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) . "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. 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). 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.

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.

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. 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.

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.

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.

For its part, the Government takes the view 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 . . . .").

We think that the decision as to whether to give this particular instruction is especially within the province 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.

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 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.

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.

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.

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