Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 CR 1093-John W. Darrah, Judge.
The opinion of the court was delivered by: Manion, Circuit Judge.
ARGUED SEPTEMBER 26, 2007
Before MANION, EVANS, and SYKES, Circuit Judges.
From 1999 until 2001, Matthew Christ served as a consular officer at the American Embassy in Vilnius, Lithuania. A jury convicted Christ of one count of conspiring to commit visa fraud, finding that he used that position to fraudulently facilitate the issuance of visas to certain Lithuanian citizens. Christ appeals, arguing that there was insufficient evidence to support his conviction, and that the district court abused its discretion in admitting certain evidence and testimony. Christ asserts that the district court further erred by failing to give a missing witness instruction, and that it relied on improper facts in enhancing his offense level at sentencing, thereby rendering his sentence unreasonable. We affirm Christ's conviction and sentence.
On March 23, 2006, Matthew Christ was charged in a Fourth Superseding Indictment ("Indictment") with two counts of conspiracy to commit visa fraud in violation of 18 U.S.C. §§ 371 and 1546 and one count of bribery in violation of 18 U.S.C. § 201(b)(2)(A). Prior to trial, the government dismissed one of the visa fraud counts. The case proceeded to trial on October 23, 2006, and the jury was presented with evidence of the following. Christ is a graduate of the United States Military Academy in West Point, New York. After more than a decade of active service in the United States Army, he became a Foreign Service Officer with the Department of State and was assigned to the American Embassy in Vilnius, Lithuania. Christ held this position from August 1999 until July 2001, during which time he was authorized to adjudicate visa applications and submit favorable referrals. A visa is a document issued to a non-citizen signifying that the holder was screened by a consular officer who determined that there is no reason to deny travel to the United States. In making this determination, consular officers consider the applicant's credibility and criminal background, as well as indicia that the applicant will return from the United States after his visit. While an interview is normally required as part of this review process, rules in place during the period in question allowed consular officers to waive the interview for individual applicants or categories of applicants considered low risks for visa violations.*fn1 The interview requirement could also be waived if an application was accompanied by a document known as a Class A referral ("referral"). A referral is a form submitted by a consular officer stating that the applicant is well and favorably known to the officer, and that expeditious processing of the application is in the national interest of the United States. According to a State Department memo introduced at trial, referrals are appropriately submitted on behalf of influential persons in government, business, science, and academia, or other persons able to enhance diplomatic relations. After this review process, the visa application is adjudicated, meaning that the final decision to grant or deny the visa is made.
The government charged that Christ engaged in the visa fraud conspiracy with four Lithuanians, Aivaras Grigaitis ("Aivaras"), his brother Robertas Grigaitis ("Robertas"), Mindaugas Masiliunas ("Masiliunas"), and Valdas Stauga ("Stauga"). As a hobby, Aivaras restored antique motorcycles, which he then sold. After placing a newspaper advertisement for the sale of a restored motorcycle, Aivaras was contacted by Christ, who is an admirer and collector of antique motorcycles. After meeting at Aivaras's shop, Christ purchased the advertised motorcycle, and Aivaras delivered it to his home. During this transaction, Aivaras learned of Christ's employment at the Embassy. Aivaras and his brother Robertas desired to live in the United States because of the poor economic situation in Lithuania at the time, and the two speculated that Christ's employ- ment at the Embassy might combine with his interest in motorcycles to make him a helpful resource in obtaining visas. Subsequently, Aivaras invited Christ back to his shop to see another motorcycle he had restored. After Christ expressed interest, Aivaras offered it to him in exchange for help in obtaining visas. Aivaras testified that Christ agreed to the offer. Christ told Aivaras that in order to apply for visas he and Robertas needed passports, photos, and application fees. When Aivaras asked if they should bring these items to the Embassy, Christ responded that he would instead come to Aivaras's shop after business hours.
Christ arrived at Aivaras's shop on the designated evening with blank applications, which the Grigaitis brothers then completed in his presence. On Christ's advice, Robertas stated on his application that he intended to travel to the United States for tourism, although he testified at trial that he also intended to find employment here. Because Aivaras's passport was missing, he was unable to complete an application in his name. He instead completed one for Masiliunas, a friend of his, stating on Christ's advice that Masiliunas's purpose for traveling to the United States was tourism. Upon completing the application, Aivaras signed it in Masiliunas's name. Christ took the applications back to the Embassy, and adjudicated Robertas's application in November 1999, and Masiliunas's application in December 1999. Ruta Kundrotiene, a visa assistant at the Lithuanian Embassy responsible for processing applications, testified that each man was issued a ten-year visa allowing periodic travel to the United States.
When Christ delivered these visas to Aivaras, Aivaras requested additional assistance in obtaining a visa for himself, as well as Stauga, his neighbor. Christ agreed and subsequently returned to Aivaras's shop with blank applications. Aivaras completed his application, as well as Stauga's, in Christ's presence. Instead of personally adjudicating this second pair of visas, Christ submitted each application with a referral. While the government did not present the referral forms themselves at trial, there was evidence of Christ's conduct in the form of a handwritten notation on each application stating, "Referred by Matt Christ." In March 2000, Aivaras and Stauga were issued visas of the same sort previously issued to Robertas and Masiliunas. Kundrotiene testified that Christ's referrals allowed Aivaras and Stauga to receive visas without being interviewed. Aivaras testified that after the four visas were issued, he delivered the agreed-upon motorcycle to Christ's house, and Christ never paid, nor offered to pay, for it.
In November 2000, Aivaras again contacted Christ and requested his assistance in obtaining visas for Robertas's wife and two children. Aivaras told Christ that he was restoring additional motorcycles he could offer Christ in exchange for his help. Aivaras testified that Christ agreed, and Robertas subsequently contacted him. The two arranged to meet at a gas station, and Robertas arrived with completed applications he had obtained for his family, as well as their passports. Christ submitted these applications in February 2001 with referrals. The referral forms, which were introduced at trial, stated that the applicants were well and favorably known to Christ and that expeditious processing of the applications was in the national interest of the United States. Robertas testified, however, that no one in his family had ever met Christ. Notwithstanding Christ's referrals, the visa assistant processing the applications determined that Robertas's family should be interviewed because Robertas's visa had been so recently issued. The family was directed to appear with, among other documents, Robertas's passport, which would allow consular officers to determine whether he had traveled to the United States, and if so, whether he had returned to Lithuania. When Robertas's family failed to arrive for their interview with the requested documents, their applications were denied. These events surrounding the family applications resulted in an investigation of visa fraud at the Vilnius Embassy, leading ultimately to Christ's indictment and arrest.
In addition to the above, the jury heard testimony regarding Christ's financial transactions and motorcycle interests around the time he received the second motorcycle from Aivaras. Roland Slabon, president of a group known as Vintage BMW Motorcycle Owners, testified that Christ contacted him in the Fall of 1999 inquiring about certain types of antique BMW motorcycles, and expressing interest in purchasing some that he had come across in local markets. Additionally, Charles Christ, the defendant's father, testified that he had a telephone conversation with his son in February 2000 during which Christ stated his intent to purchase a BMW motorcycle for $1,000 in the coming weeks. Finally, an auditor with the United States Attorney's Office testified regarding checks cashed by Christ at the Lithuanian Embassy between August 1, 1999, and September 28, 2001. While Christ cashed checks for amounts ranging from $200.00 to $630.00 during that period, the jury's attention was directed to two separate checks each for $500.00 cashed three days apart in early February 2000. The defense argued in closing that these checks corroborated the testimony of Charles Christ, and that the testimony, taken as a whole, showed that Christ did not receive the second motorcycle as a bribe from Aivaras, but rather purchased it. The defense further argued that if the jury found that Christ purchased that motorcycle, it followed that he had no motive to engage in a conspiracy to commit visa fraud, and the evidence was therefore insufficient to convict him of that charge.
On November 1, 2006, the jury returned a verdict of guilty on the visa fraud charge, and not guilty on the bribery charge. Thereafter, Christ moved for a judgment of acquittal, or alternatively, for a new trial. In arguing for a judgment of acquittal, Christ argued that insufficient evidence was presented to establish his guilt beyond a reasonable doubt. His motion for a new trial was also based on the insufficiency of the evidence, as well as his argument that the district court's admission of certain evidence and failure to properly instruct the jury deprived him of a fair trial. Specifically, Christ argued that the district court should not have admitted the evidence involving Robertas's family because it amounted to evidence of an uncharged conspiracy not intricately intertwined with, or undertaken in furtherance of, the charged conspiracy. Next, Christ argued that his trial was unfair because the referral notations on Aivaras's and Stauga's applications were inadmissible hearsay. Christ also argued that the court should not have allowed the government to question Roland Slabon regarding Christ's payment to him of witness fees. Finally, Christ argued that his trial was rendered unfair by the district court's failure to give a missing witness instruction after the government failed to call certain consular officials. Christ's motion was denied by the district court on Febru- ary 21, 2007. The district court proceeded to sentencing on March 1, 2007, at which point it determined Christ's Guideline range to be twenty-one to twenty-seven months. This range was arrived at, in part, by including the family visa applications in Christ's relevant conduct. Christ was sentenced to twenty-four months in prison. He now appeals his conviction based upon the same grounds as his post-trial motion. Additionally, he argues that his sentence was unreasonable because the district court had no basis to find that Christ's crime involved more than the four visas procured for the co-conspirators.
We begin with Christ's evidentiary challenges. First, Christ argues that the district court erred in admitting the evidence related to the family visa applications that were rejected when Robertas's family failed to show up for their interview with the requested documents. He asserts that the evidence was irrelevant, and not undertaken in furtherance of, or intricately related to, the charged conspiracy. The district court admitted the evidence primarily under the theory that it was intricately related to the conspiracy, and therefore admissible to explain fully the circumstances related to the charged crime. See United States v. Thompson, 286 F.3d 950, 968 (7th Cir. 2002) ("Evidence that is so blended or connected that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime is excluded from Federal Rule of Evidence 404(b)'s prohibition against other acts evidence admitted to show action in conformity therewith and, therefore, may be admitted at trial.") (internal quotation omitted). Additionally, the district court noted that its finding was sup- ported by the fact that the ...