In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2511

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

S ORIN A DRIAN O ROS,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 07 CR 00125—Amy J. St. Eve, Judge.



      A RGUED A PRIL 8, 2009—D ECIDED A UGUST 25, 2009




 Before EASTERBROOK, Chief              Judge, and KANNE           and
WILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. At around midnight on Decem-
ber 12, 2006, Chicago police officers spotted a Lexus
and a Lincoln Navigator parked in a dark corner of a
Shell gas station. Inside the Lexus were two men: Sorin
Adrian Oros, a real estate developer, and David Johnson,
the Supervisor of Building Inspectors for the City of
Chicago Department of Buildings. The officers, believing
2                                               No. 08-2511

they were about to foil a drug deal, approached the
vehicle to investigate. After searching both men and the
vehicle, the officers found no drugs but Johnson had
over $19,000 in his pocket, $12,000 of which came from
Oros. They also found blueprints—architectural drawings
of three properties. Oros told the officers that he had
paid Johnson the $12,000 to have his plans “expedited”
through the City’s rigorous approval process. The gov-
ernment called it bribery, and the jury agreed, convicting
Oros of bribery, in violation of 18 U.S.C. § 666(a)(2). Oros
now appeals his conviction and sentence. Because the
testimony and circumstantial evidence presented at trial
support his conviction as well as the district court’s
findings at sentencing, we affirm both.


                   I. BACKGROUND
  In 2006, New City Builders (“New City”), a condo-
minium conversion company, contracted with Algin
Construction and Development to prepare architectural
plans for two rental properties it planned to convert to
condominiums. New City sought to add two units to
each property, and Algin agreed to complete the steps
necessary to obtain permits for both projects. This
included scheduling intake meetings with the City of
Chicago Department of Construction and Permits
(“DCAP”) and making any required changes to the plan
if the original version did not meet the Department’s
requirements.
 In an effort to get New City’s plans approved, Oros, who
was working for Algin Construction at the time, contacted
No. 08-2511                                              3

David Johnson, the Supervisor of Building Inspectors
for the Department of Buildings. The two men met at a
Shell gas station at around midnight, and Oros gave
Johnson $12,000 in cash while both men sat in the front
seat of Oros’s Lexus. Three Chicago police officers on
narcotics patrol, who had been watching the activities
at the gas station, proceeded to intercept what they
thought was a drug deal. The officers ordered both
men out of the car and patted them down, finding $19,301
in Johnson’s pockets. The officers then searched Oros’s
car and found three sets of architectural drawings for
three different properties.1 Both men accompanied the
officers to the police station where Oros was placed
under arrest. During a post-arrest interview, Oros told
officers that he gave Johnson $12,000 and the architectural
drawings “for the purpose of having them expedited,”
and that he had met with Johnson 20 to 30 times over
the past two to three years to pay him cash for ex-
pedited approvals of other projects. As a result, the In-
spector General filed a criminal complaint, and a
federal grand jury returned a two-count indictment
charging Oros with conspiracy to commit bribery, in
violation of 18 U.S.C. §§ 371, 372 and bribery, in viola-
tion of 18 U.S.C. § 666(a)(2).
 At trial, Oros argued that the payments to Johnson
were not bribes because he thought Johnson was a legiti-



1
  Two of the blueprints were for properties owned by New
City, but the owner of the third property is unclear from
the record.
4                                               No. 08-2511

mate “expediter.” In order to fully comprehend Oros’s
defense, it is important to have a basic understanding of
Chicago’s building permit approval process as it existed
in 2006, and the role of an expediter in this system. 2 At
that time, obtaining approval for standard building
projects in the City of Chicago was a complicated, tedious
process. Each applicant’s building plans were subjected
to the scrutiny of three main departments: the Depart-
ment of Zoning, DCAP, and the Department of Buildings.
The Department of Zoning examined the applicant’s
plans or architectural drawings to ensure that they com-
plied with the zoning and landscape ordinance. DCAP
also inspected the plans and issued permits prior to
construction if the project satisfied the city’s building
code requirements. During its review, nine examiners of
different disciplines (architectural, electrical, plumbing,
ventilation, refrigeration, fire, accessibility, structural,
and environmental) reviewed the plans and the corre-
sponding code requirements for each area. Finally, build-
ing inspectors at the Department of Buildings physically
inspected the properties to ensure that the completed
projects were consistent with the building codes and with
the architectural drawings that DCAP had approved.
 Shepherding one’s project through all three depart-
ments required a significant investment of time (i.e.,



2
  The process for obtaining approval for building projects
has changed since 2006. Most notably, the Department of
Construction and Permits and the Department of Buildings
merged.
No. 08-2511                                             5

meetings with DCAP employees, making corrections or
adjustments to conform with the building codes, re-
viewing the adjustments with DCAP, etc.), so much so that
some building owners were willing to pay expediters
to help them navigate the process. The expediters’ duties
often included preparing the application beforehand
to minimize errors, setting up appointments and
meeting with DCAP employees, and even standing
in line if necessary. Expediters were required by the
Departments, but not under city or state law, to register
and to indicate all who worked for them.
  During trial, the government presented a number of
witnesses and exhibits to demonstrate that Oros had
been involved in a conspiracy to obtain approval of his
building projects by offering bribes to employees from
different Departments, and that he knew the people
he paid were not expediters. First, Johnson testified that
Oros paid him and other city employees multiple times
to get building plans approved, along with other
various favors. One such favor included manipulating
the Department of Buildings’ mainframe computer
which stored the different zoning ordinances’ require-
ments. To determine whether a building project com-
plied with the zoning and landscape ordinance for
the area, the Department of Zoning generally compared
the building plans to the requirements in the mainframe
computer, and rarely, if ever, looked to the actual ordi-
nance. So if one altered the requirements in the
computer, a building that did not comply with the
zoning ordinance still could have been approved by the
zoning department, as long as it complied with the
6                                             No. 08-2511

new, doctored restrictions—it would not matter that it
was inconsistent with the actual ordinance because the
department rarely looked to it. The government also
presented summary charts of telephone calls made from
June 1, 2005, to December 12, 2006, between Oros, Johnson,
and other individuals whom Johnson claimed were
involved in the bribery scheme. Finally, on a number of
occasions, the government highlighted the “clandestine”
nature of Oros and Johnson’s gas station meeting,
which, it claimed, resembled a drug deal more so than
a legitimate business transaction.
  The jury acquitted Oros of the conspiracy charge but
convicted him of bribery, in violation of 18 U.S.C.
§ 666(a)(2). At the sentencing hearing, the district court
found, based on Johnson’s testimony, that Oros paid a
total of approximately $59,000 in bribes and sentenced
him to 33 months’ imprisonment, two years’ supervised
release, 200 hours of community service, a $5,000 fine,
and a $100 special assessment. Oros appeals his con-
viction and sentence.


                     II. ANALYSIS
A. Admission of the Summary Charts Was Harmless
   Error
  The first issue we address is whether the district court
erred in allowing the government to present charts to
the jury summarizing telephone and bank records that
were not properly admitted, and, if so, whether that
error requires a reversal. We review the district court’s
No. 08-2511                                                     7

interpretation of the Federal Rules of Evidence de novo,
United States v. LeShore, 

, 941 (7th Cir.
2008), and the decision to admit the summaries for
an abuse of discretion, United States v. Turner, 

, 498 (7th Cir. 2005).3 We will not reverse the district
court’s ruling “if we are convinced that the error did not
influence the jury . . . and can say with fair assurance . . .
that the judgment was not substantially swayed by the
error.” United States v. Reyes, 

, 593 (7th Cir.
2008) (citing United States v. Dennis, 

, 769-70
(7th Cir. 2007)). At trial, the government informed the
court that it intended to introduce summaries of volumi-
nous bank and telephone records under Federal Rule


3
  The government suggests in its brief that Oros’s initial
objection to the summaries was based on the government’s
failure to admit the underlying records. It claims that Oros
changed the nature of his objection in his post-trial motion
when he asserted that the government did not lay a proper
foundation. After reviewing the trial transcript, it appears
that Oros’s initial objection was also based on the lack of
foundation for the underlying records. At one point, one of
Oros’s attorney said, “Well if the proper foundation is laid, then
I’m not going to challenge the [summaries].” Later on in the
discussion, Oros’s other attorney said, “the records, themselves,
are hearsay unless they’re non-testimonial hearsay, unless
there’s an exception to the hearsay rule. And they can lay that
foundation if it’s true.” From these statements and others,
we conclude that Oros’s initial objection was based, at least
in part, on the absence of a proper foundation for the under-
lying records, and not just the failure to admit them. As a
result, abuse of discretion is the appropriate standard of review.
8                                                No. 08-2511

of Evidence 1006. The parties then debated over
whether the underlying records needed to be certified,
or whether a custodian had to take the stand to lay the
proper foundation for the records. The district court
sided with the government, finding that because the
government was only introducing the summary (and not
the underlying records themselves), no certification or
testimony from a custodian was required.
  Federal Rule of Evidence 1006 allows a party to
present, and enter into evidence, a summary of
voluminous writings, recordings, or photographs. This
provision, however, is not an end around to introducing
evidence that would otherwise be inadmissible; there-
fore, in applying this rule, we require the proponent
of the summary to demonstrate that the underlying
records are accurate and would be admissible as evi-
dence. Judson Atkinson Candies, Inc. v. Latini-Hohberger
Dhimantec, 

, 382 (7th Cir. 2008) (citing United
States v. Briscoe, 

, 1495 (7th Cir. 1990)). It is
the latter requirement (that the underlying records
be admissible) that created much confusion at trial.
  Both parties agree that the underlying records were
hearsay, and therefore inadmissible unless they satisfied
one of the hearsay exceptions. The government presented
Inspector David Hodapp to testify as to how he obtained
the records (via trial subpoena), and it believes that
was sufficient to demonstrate admissibility. The govern-
ment appears to argue that since it was not required to
admit the records, the district court was within
its discretion to determine, based on Inspector
No. 08-2511                                               9

Hodapp’s testimony, that the records were of the type
“commonly viewed as trustworthy” that would have
been admissible under the business records exception,
Federal Rule of Evidence 803(6). The problem with this
argument is that Inspector Hodapp’s testimony falls
short of the requirements set by Rule 803(6). Under that
provision, the following is not excluded by the hearsay
rule:
   A memorandum, report, [or] record . . . made at or
   near the time by, or from information trans-
   mitted by, a person with knowledge, if kept in the
   course of a regularly conducted business activity,
   and if it was the regular practice of that business
   activity to make the [record] . . . all as shown by
   the testimony of a custodian or other qualified wit-
   ness, or by certification that complies with
   Rule 902(11), Rule 902(12) or a statute permitting
   certification . . . .
Fed. R. Evid. 803(6) (emphasis added). The government
did not present any testimony to establish that the
records were kept in the course of a regularly con-
ducted business activity, nor did it provide a certifica-
tion. Without these steps, the government could not
have laid the foundation necessary to demonstrate the
admissibility, under the business records exception, of
the underlying records or the summaries of those re-
cords. See United States v. Samaniego, 

, 1224
(10th Cir. 1999) (finding that the district court erred by
allowing the government to admit summaries without
“lay[ing] a foundation for application of the business
10                                                  No. 08-2511

records exception”); see also 29A Am. Jur. 2d Evidence
§ 1079 (2009) (“Since the proponent [of a summary] must
establish that the underlying documents are themselves
admissible, the same general foundation must be laid as
if the underlying materials were actually being offered
in evidence . . . .”). Indeed, there may be some
instances where the foundation for admissibility under
Rule 803(6) can be established by “judicial notice of the
nature of the business and ‘the nature of the records as
observed by the court . . .,’ ” 

n.1
(citing United States v. Johnson, 

, 571 (10th
Cir. 1992) (emphasis added)); however, that is not what
happened here. The district court did not examine the
records, nor did it give any indication that it was
taking judicial notice of them. Instead, the court main-
tained that the government was not required to lay
the proper foundation for the underlying records
because they were not being admitted into evidence.
The government did not satisfy Rule 803(6)’s founda-
tional requirements, and there is simply no basis for
the assumption that the court would have taken judicial
notice of the underlying documents’ admissibility.4


4
  The government relies on Coates v. Johnson & Johnson, 

, 549-50 (7th Cir. 1985), to argue that the district court
was within its discretion to admit the underlying records,
based on Inspector Hodapp’s testimony as to how he ob-
tained the records. In Coates, we affirmed the district court’s
decision to admit an employer’s disciplinary memoranda
under Rule 803(6) because we knew that the memoranda were
                                                    (continued...)
No. 08-2511                                                 11

See 

summary charts should not have
been admitted.
  This does not entitle the defendant to a new trial, how-
ever, if we determine that the error was harmless, United
States v. Lee, 

, 649 (7th Cir. 2009), or, in
other words, if it did not have a “substantial and
injurious effect or influence on the jury’s verdict.” United
States v. Jarrett, 

, 529 (7th Cir. 1998) (citing
United States v. Hanson, 

, 407 (7th Cir. 1993)).
The government submitted a chart that listed all of
Oros’s properties to show the jury that Oros was an
experienced property owner. From this the jury was to
infer that he could not have been duped so easily into
believing Johnson was an expediter. The chart was
based largely on the unauthenticated bank records, but
also, in part, on the City of Chicago building permits,
which were admitted into evidence. Even without the
bank records, the evidence at trial demonstrated that
Oros had obtained building permits for at least six of his


4
  (...continued)
prepared by the plaintiff, “were part of the systematic conduct
of running a business; and were kept according to a regular
procedure [ ] for a routine business purpose.” 

In
other words, we noted that the memoranda essentially met the
requirements of the business records exception. Here, nothing
from Inspector Hodapp’s testimony tells us whether the
records were kept in accordance with regularly conducted
business activity, and rightfully so because he doesn’t work
for the bank or phone company. Coates does not alleviate the
government’s burden to lay the proper foundation.
12                                              No. 08-2511

properties, three of which were twenty-dwelling units.
The inference that Oros was an experienced property
owner could easily have been drawn from these proper-
ties—the jury did not need to delve any further
to reach that conclusion. Admitting the property sum-
mary chart in this case caused no prejudice to the defen-
dant.
  The admission of the telephone summary charts was
equally harmless. The charts showed the total number of
phone calls between Oros, Johnson, and the other
alleged conspirators from June 1, 2005, through Decem-
ber 12, 2006 (chart 1); the total number of calls broken
down by the month (chart 2); the number of calls Oros
made to Michael Reese, one of the co-conspirators (chart 3),
and Johnson (chart 4) each month; and the phone calls
made on December 12, 2006, the day of the alleged bribe
(chart 5). The primary purpose of this evidence was to
demonstrate the existence of a conspiracy between Oros,
Johnson, and others—a charge of which Oros was ulti-
mately acquitted. This was clear at closing arguments
where the government first addressed the phone call
summary charts by stating, “[l]et’s start, first of all,
by talking about the conspiracy . . . [w]hat other evi-
dence have you seen and heard during this trial
that proves to you that those details—who the members
were . . . —w[ere] true? Ladies and gentlemen, the
phone records.” Oros argues, however, that the sum-
mary charts also suggested that he knew Johnson
was a government employee taking a bribe, and not an
expediter, because it showed they had frequent contact.
No. 08-2511                                              13

While a juror could plausibly have made this inference, the
presence of other incriminating evidence weighs heavily
against Oros’s claims of prejudice. In short, the police
found Oros in a Lexus, at a gas station, at midnight,
exchanging thousands of dollars in cash with a govern-
ment employee who later testified against him. With
these damaging facts, Oros faced an uphill battle on the
bribery charge. It is highly unlikely that a call log
unfairly tipped the scales for the jury; therefore, any
error the district court committed was harmless and a
reversal is not warranted.


B. Sufficient Evidence Supported Oros’s Conviction
  Oros next argues that the evidence presented at trial was
insufficient to find him guilty of bribery beyond a reason-
able doubt. A defendant who challenges the sufficiency
of the evidence to sustain his conviction faces a “nearly
insurmountable hurdle.” United States v. Woods, 

, 621 (7th Cir. 2009) (citation omitted). The defen-
dant must demonstrate that “no rational trier of fact,
viewing the evidence in the light most favorable to
the prosecution, could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Knox, 

, 719 (7th Cir. 2008). “We do not
reweigh the evidence, nor do we second-guess the jury’s
credibility determinations.” United States v. Boisture, 

, 298 (7th Cir. 2009). And “we uphold convictions
based on uncorroborated testimony of an accomplice
unless the testimony is incredible as a matter of law.”

(citing United States v. Van Wyhe,

(7th Cir. 1992)).
14                                               No. 08-2511

  Johnson’s testimony and the suspicious circumstances
surrounding Oros’s arrest easily support his conviction
for bribery in violation of 18 U.S.C. § 666(a)(2). The
statute imposes criminal penalties on a defendant who:
     corruptly gives, offers, or agrees to give anything
     of value to any person, with intent to influence or
     reward an agent of an organization or of a State,
     local or Indian tribal government, or any agency
     thereof, in connection with any business, transac-
     tion, or series of transactions of such organization,
     government, or agency involving anything of
     value of $5,000 or more.
18 U.S.C. § 666(a)(2). Here, the government presented
testimony that Oros paid Johnson $12,000 (which Oros
does not deny), and Johnson testified that he was paid
to subvert the permit application process and obtain
approval for Oros’s architectural plans. Johnson pro-
vided details about the amounts he had been paid in
the past by Oros, and the other government employees
he had used to facilitate his scheme. He also stated that
he obtained zoning approval for buildings that were
otherwise in violation of the zoning ordinance. Still, Oros
argues that he believed Johnson was a legitimate
expediter, and that Johnson’s testimony cannot support
a conviction. Specifically, Oros claims that Johnson
lacked credibility because he was convicted of perjury
in 1989 (for unlawfully obtaining employment benefits),
and that he lied about reporting some of the cash he
received from bribes on his income taxes.
  Oros’s claims amount to nothing more than an attack
on the jury’s credibility determination, which we have
No. 08-2511                                                  15

repeatedly refused to revisit on appeal. See, e.g., United
States v. Bowman, 

, 552 (7th Cir. 2003). A
witness’s testimony is not per se incredible simply
because he once committed perjury; instead, the prior
conviction informs the jury’s credibility determination.
See Allen v. Chicago Transit Auth., 

, 703
(7th Cir. 2003); cf. United States v. Zizzo, 

, 1347
(7th Cir. 1997) (holding that a witness’s “penchant for
perjury” is not a reason to exclude his testimony, but
provides the defense with an opportunity to undermine
his credibility on cross-examination). The jury was well
aware of Johnson’s 1989 perjury conviction and still
chose to believe his story—that the midnight gas station
exchange was not a legitimate business deal—so its
credibility determination shall remain undisturbed.
The record is replete with evidence to support Oros’s
conviction.


C. Sufficient Evidence Supported the Loss Calculation
  Oros also challenges his sentence, arguing that the
district court erred in calculating the amount of loss,
which, in turn, determined his offense level. Once again,
Oros attacks Johnson’s credibility, arguing that Johnson’s
testimony was inadequate to support the court’s loss
calculation. In assessing the total loss amount, the court
may consider the conduct of conviction as well as other
relevant conduct. United States v. Frith, 

, 917
(7th Cir. 2006). This may include uncharged or
acquitted conduct as long as the court makes specific
findings identifying the relevant conduct based on a
16                                               No. 08-2511

preponderance of the evidence. United States v. Schaefer,

, 938-39 (7th Cir. 2002). Further, during sen-
tencing, courts “may consider relevant information with-
out regard to its admissibility under the rules of
evidence . . . provided that the information has sufficient
indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3 (2004). We review the district court’s
loss calculation for clear error and “will only reverse if
we are left with a definite and firm conviction that a
mistake has been made.” United States v. Radziszewski,

, 486 (7th Cir. 2007) (internal quotation
marks and citations omitted).
  At sentencing, the district court determined that the
amount of loss for Oros’s offense was $59,000, which
resulted in an adjusted offense level of 20. In reaching
this amount, the court relied primarily on Johnson’s
testimony which revealed that Oros paid $45,000 to get
his architectural drawings “approved through Zoning,”
including the $12,000 police recovered, and $1,000 on
four or five different occasions to alter the data in
the mainframe computer to reflect a larger number of
permissible residential units than what the zoning ordi-
nance actually allowed. Johnson also testified that Oros
made payments to his coworker, Michael Reese, for
additional “favors” in the Department of Buildings,
which the court estimated to be approximately $10,000.5



5
  The court arrived at this estimate from Johnson’s testimony
that he and Reese shared $20,000 in cash bribes. Johnson
                                                (continued...)
No. 08-2511                                                   17

The court found this testimony to be credible and ex-
plained its reasons for doing so. Namely, Oros told an
officer that he had met Johnson 20 to 30 times and paid
him for rapid approvals of construction projects, and, in
the court’s view, this corroborated Johnson’s testimony
concerning the bribe payments. The court also noted the
additional corroborative weight of the property and
phone summary charts, both of which were permissible
for the court to consider during sentencing, even if they
were inadmissible at trial. See U.S.S.G. § 6A1.3; see also
United States v. Goodwin, 

, 642 (7th Cir. 2007)
(“For sentencing purposes, the Federal Rules of Evidence
do not apply . . . .”). For the same reasons mentioned in
the previous section, Oros’s attacks on Johnson’s
credibility do not carry much weight here. The district
court found Johnson’s testimony credible after con-
sidering all of the additional corroborating evidence
presented at trial. Because we find no clear error in its
determination, we defer to the district court’s sen-
tencing decision.




5
  (...continued)
later testified that Oros paid him a total of $45,000 in cash for
six unit changes. It appears that the district court assumed
Johnson included his share of the $20,000 in this tally, presum-
ably to avoid double counting. Therefore, only Reese’s share
of the payment was added to Johnson’s $45,000 total.
Assuming that both men divided the $20,000 in half, Reese’s
share of the payment was approximately $10,000, which is
what the court added to Johnson’s total.
18                                        No. 08-2511

                 III. CONCLUSION
  For these reasons, we A FFIRM Oros’s conviction and
sentence.




                        8-25-09