Judges: Ripple
Filed: Aug. 25, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-2799 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANIEL DVORKIN, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12-cr-00500-1 — Edmond E. Chang, Judge. _ ARGUED JANUARY 7, 2015 — DECIDED AUGUST 25, 2015 _ Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges. RIPPLE, Circuit Judge. Daniel Dvorkin was convicted on five counts of using, or cau
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-2799 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANIEL DVORKIN, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12-cr-00500-1 — Edmond E. Chang, Judge. _ ARGUED JANUARY 7, 2015 — DECIDED AUGUST 25, 2015 _ Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges. RIPPLE, Circuit Judge. Daniel Dvorkin was convicted on five counts of using, or caus..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2799
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DANIEL DVORKIN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12‐cr‐00500‐1 — Edmond E. Chang, Judge.
____________________
ARGUED JANUARY 7, 2015 — DECIDED AUGUST 25, 2015
____________________
Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Daniel Dvorkin was convicted on
five counts of using, or causing another person to use, a fa‐
cility of interstate commerce with the intent to commit a
murder for hire, in violation of 18 U.S.C. § 1958, and on one
count of soliciting another to commit a crime of violence, in
violation of 18 U.S.C. § 373. He timely appealed his convic‐
tions on various grounds. For the reasons set forth in this
opinion, we affirm the judgment of the district court.
2 No. 14‐2799
I
BACKGROUND
A.
This case arises out of Mr. Dvorkin’s failed efforts to hire
a hitman to kill a creditor named Larry Meyer. Meyer was
the manager of Texas 1845, LLC (“Texas 1845”). In December
2010, Texas 1845 acquired two distressed loans guaranteed
by Mr. Dvorkin and his company, Dvorkin Holdings, LLC.
Shortly afterward, Texas 1845 filed an action in Illinois state
court against Mr. Dvorkin and his company to recover on
the debt. On February 26, 2012, the state court entered
judgment for Texas 1845 for approximately $8.2 million. On
April 2, 2012, the parties attempted, but ultimately failed, to
negotiate a settlement of the debt. The judgment became en‐
forceable on May 4, 2012.
1. April 5 Voicemail and April 6 Meeting
On April 5, 2012, Mr. Dvorkin called and left a voicemail
for Robert Bevis. Bevis owned and operated a firearms store,
which had leased space from one of Mr. Dvorkin’s compa‐
nies, Dan Development, LLC (“Dan Development”). Bevis
also worked as a private detective and process server. In his
voicemail, Mr. Dvorkin identified himself, stated that he
“ha[d] an idea,” and asked Bevis to call him back.1
The next day, Bevis visited the offices of Dan Develop‐
ment. There, Mr. Dvorkin approached him in the reception
1 R.146‐1.
No. 14‐2799 3
area and asked Bevis to accompany him to the parking lot.
Once they were alone, Mr. Dvorkin told Bevis that “he had a
problem” and handed Bevis a copy of the February 26
judgment in favor of Texas 1845.2 Mr. Dvorkin stated “that
he wanted this guy to stop breathing” and that he was will‐
ing to pay $50,000 for Meyer’s murder.3 He then reached in‐
to his pocket and brandished a large wad of cash. He ex‐
plained that he was appealing the judgment and that he
could prevail if Meyer were unable to respond.
In response, Bevis told Mr. Dvorkin that he knew some‐
one in Florida who might be willing to accept Mr. Dvorkin’s
offer. Bevis later testified that this statement was a lie, which
he told to end quickly an uncomfortable conversation.
After their conversation, Mr. Dvorkin escorted Bevis back
inside Dan Development’s offices, where he gave Bevis a
printout of Meyer’s LinkedIn profile. At the top of the
printout was a handwritten note, stating, “Not sure if this
[is] your guy!”4 This note was written by Mr. Dvorkin’s ad‐
ministrative assistant, who had printed the profile after
Mr. Dvorkin had asked her to find information on Meyer’s
whereabouts.
Bevis left Dan Development with copies of both the Feb‐
ruary 26 judgment and Meyer’s LinkedIn profile. Later that
day, Bevis contacted the Oakbrook Terrace, Illinois, Chief of
Police to report his encounter with Mr. Dvorkin. The police,
2 R.174 at 19.
3 Id. at 21.
4 R.146‐9.
4 No. 14‐2799
in turn, set up a meeting with the FBI. After hearing Bevis’s
story, the FBI asked Bevis to become a cooperating witness
and to record his conversations with Mr. Dvorkin. Bevis
agreed.
2. April 18 Phone Call and Meeting
On April 18, 2012, at the direction of federal agents, Bevis
called Mr. Dvorkin to arrange an in‐person meeting. The call
was recorded. During the call, Mr. Dvorkin stated that he
“still ha[d] that problem” and asked Bevis if he had traveled
down to Florida.5 Bevis responded that he had but that he
would prefer to talk about it in person. The two agreed to
meet later that day.
During their meeting, which was recorded, Bevis told
Mr. Dvorkin that the Florida hitman had offered to kill Mey‐
er for approximately $80,000, half of which he required in
advance. Mr. Dvorkin responded that he had $50,000 in un‐
traceable funds and would “have to figure out how to get
the rest.”6 After discussing the issue further, Mr. Dvorkin
offered to loan Bevis $50,000 on favorable terms if he could
negotiate with the hitman to accept $50,000 for killing Mey‐
er. Bevis agreed.
5 R.146‐2 at 1.
6 R.146‐3 at 4.
No. 14‐2799 5
3. April 30 and May 3 Phone Calls
On April 30, 2012, Mr. Dvorkin called Bevis and told him
“[t]hat he had a different avenue that he may want to take”
with respect to Meyer.7 Bevis testified that he understood
this statement to mean that Mr. Dvorkin had “found some‐
body else to kill Larry Meyer at a cheaper rate than” the fic‐
tional Florida hitman.8 Mr. Dvorkin also told Bevis that his
last court date “didn’t go well.”9 The two men made plans to
speak again soon. On May 3, Mr. Dvorkin called Bevis and
made arrangements to meet on May 7.
4. May 7 Meeting and Phone Call
On May 7, 2012, Bevis drove to Mr. Dvorkin’s office. In a
recorded conversation, Mr. Dvorkin elaborated on the “other
avenues” that he had mentioned on April 30. He told Bevis
that he had hired someone else to kill Meyer for less than
half of the price of the Florida hitman and with only a ten‐
percent down payment. Further, he explained, this other in‐
dividual had promised to finish the task by Friday, May 18.
Consequently, Mr. Dvorkin initially instructed Bevis to dis‐
continue negotiations with the Florida hitman and to “tell
him [that] it fell through.”10 After discussing the issue fur‐
ther, however, Mr. Dvorkin instructed Bevis to inquire
whether the Florida hitman would accept a lower price and
7 R.174 at 92.
8 Id.
9 Id.
10 R.146‐4 at 2.
6 No. 14‐2799
to tell him that they had found someone else willing to do
the job for $20,000. Bevis agreed to do so.
Later in the day on May 7, Bevis, at the direction of the
FBI, called Mr. Dvorkin to report that the Florida hitman
would accept the lower price. In response, Mr. Dvorkin ex‐
plained that his plan to use the “other avenue” hitman was
already in motion and that he could not do anything until
May 18. The two agreed to discuss the issue again on that
date.
Following this call, the FBI placed Meyer and his family
under twenty‐four‐hour surveillance. Further, on that same
day, law enforcement officers confronted Mr. Dvorkin in the
parking lot outside his office. They told him that they were
aware of his plot to kill Meyer and that, if Meyer were
harmed, he would be the primary suspect.
5. May 8 Meeting
On May 8, 2012, Mr. Dvorkin called and told Bevis that
he was on his way to Bevis’s gun store. He arrived ten to fif‐
teen minutes later. Their meeting was not recorded. Upon
his arrival, Mr. Dvorkin told Bevis that law enforcement had
confronted him and had reported that someone had taken “a
shot at Larry Meyer.”11 Mr. Dvorkin asked Bevis to search
online for news concerning Meyer because he did not want
to use his own computer. FBI computer analysts later con‐
firmed that a Google search for Meyer’s name was made on
Bevis’s computer at approximately 10:16 a.m. on May 8.
11 R.175 at 31.
No. 14‐2799 7
6. May 11 Phone Call and July 5 Arrest
On May 11, 2012, Bevis called Mr. Dvorkin to determine
whether the FBI’s intervention had stymied his plan to use
the “other avenue” hitman. Bevis started the conversation,
which was recorded, by telling Mr. Dvorkin that the FBI had
stopped by his gun store and had questioned him about
Mr. Dvorkin. After agreeing on what they would say if con‐
fronted by the FBI in the future, Bevis inquired whether Mr.
Dvorkin still intended to follow through with his plan to kill
Meyer:
BEVIS: … I mean is, is everything over?
Did you, is everything stopped? I
mean ‘cause if anything does hap‐
pen—
… .
DVORKIN: As far as I know it’s all legal. It’s
all stopped. I am gonna file, ah, ah,
a Chapter 11 reorganization. The
only thing I do now is through at‐
torneys and, ah, I don’t know this
guy, this guy sounds like a nut to
me.
… .
DVORKIN: … I’m just gonna get on with my
life we’re appealing the case.
BEVIS: Yeah.
8 No. 14‐2799
DVORKIN: I’m just doin’ legal things.[12]
FBI agents arrested Mr. Dvorkin on June 5,
2012.
B.
In August 2012, a grand jury returned a six‐count in‐
dictment, charging Mr. Dvorkin with five counts of using or
causing another person to use a facility of interstate com‐
merce with the intent to commit a murder for hire, in viola‐
tion of 18 U.S.C. § 1958, and one count of soliciting another
to do the same, in violation of 18 U.S.C. § 373.
Mr. Dvorkin was tried before a jury approximately one
year later. During the six‐day trial, the Government intro‐
duced evidence of the facts just recited. Prior to the submis‐
sion of the case to the jury, Mr. Dvorkin moved for acquittal.
The court denied the motion. Shortly afterward, the jury
found Mr. Dvorkin guilty on all counts. Mr. Dvorkin then
filed a renewed motion for acquittal and a motion for a new
trial. The court denied both motions. Mr. Dvorkin timely
appealed.13
12 R.146‐7 at 4–5.
13 The district court’s jurisdiction was premised on 18 U.S.C. § 3231. Our
jurisdiction is secure under 28 U.S.C. § 1291.
No. 14‐2799 9
II
DISCUSSION
Mr. Dvorkin raises four arguments on appeal. He first
contends that the evidence of record is insufficient to sustain
any of his convictions. Second, he submits that the evidence
shows that he had renounced his criminal intent with re‐
spect to his solicitation charge and, consequently, that the
district court erred in denying his motion for acquittal.
Third, he asserts that the court improperly restricted his
cross‐examination of Bevis. Finally, he contends that the
court erred by allowing the Government to make an im‐
proper argument during its rebuttal at closing. We address
these issues in turn.
A.
We begin with Mr. Dvorkin’s sufficiency of the evidence
arguments. See United States v. Douglas, 874 F.2d 1145, 1150
(7th Cir. 1989), abrogated on other grounds by United States v.
Durrive, 902 F.2d 1221 (7th Cir. 1990). “In considering such a
challenge, we view the evidence in the light most favorable
to the Government, defer to the credibility determination[s]
of the jury, and overturn a verdict only when the record con‐
tains no evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a reasonable doubt.”
United States v. Carter, 695 F.3d 690, 698 (7th Cir. 2012) (alter‐
ations omitted) (internal quotation marks omitted).
10 No. 14‐2799
1.
Mr. Dvorkin first challenges the sufficiency of the evi‐
dence supporting his convictions under 18 U.S.C. § 1958.14
As relevant here, § 1958 prohibits traveling in, or using a fa‐
cility of, interstate commerce, or causing another person to
do so, “with intent that a murder be committed … as consid‐
eration for a promise or agreement to pay[] anything of pe‐
cuniary value.” 18 U.S.C. § 1958(a). Mr. Dvorkin’s challenge
is a focused one. He does not contend that his conduct
lacked the necessary connection to interstate commerce,15
14 The jury convicted Mr. Dvorkin on each of the five § 1958 counts
charged against him in the indictment. Those counts each corresponded
to a different “use” of interstate commerce by either Bevis or Mr.
Dvorkin. Those “uses” include (1) Mr. Dvorkin’s April 5 voicemail for
Bevis, (2) Mr. Dvorkin’s April 18 telephone call with Bevis, (3) Bevis’s
April 18 drive to Mr. Dvorkin’s office, (4) Bevis’s May 7 drive to
Mr. Dvorkin’s office, and (5) Mr. Dvorkin’s May 7 telephone call with
Bevis.
15 The phrase “facility of interstate or foreign commerce,” as used in this
provision, “includes [both] means of transportation and communica‐
tion.” 18 U.S.C. § 1958(b)(2). Automobiles and interstate telephone carri‐
ers are well recognized examples of “facilities of inter‐
state … commerce.” See United States v. Mandel, 647 F.3d 710, 716, 721
(7th Cir. 2011); United States v. Richeson, 338 F.3d 653, 660–61 (7th Cir.
2003). Section 1958 requires only “that the facility, and not its use, be in
interstate or foreign commerce.” Richeson, 338 F.3d at 660. Consequently,
a defendant’s intrastate use of a facility of interstate commerce is alone
sufficient to satisfy the statute’s jurisdictional element. See id. (“[I]t is suf‐
ficient under § 1958 that the defendant used an interstate commerce facil‐
ity in an intra state fashion.” (alteration omitted) (emphasis in original)
(internal quotation marks omitted)); Mandel, 647 F.3d at 721 (“The stat‐
ute … does not require that a facility of interstate commerce actually be
used in interstate commerce.”).
No. 14‐2799 11
nor does he dispute the evidence of his criminal intent.16 Ra‐
ther, he submits that the statute requires an additional ele‐
ment, which the Government has failed to prove, namely,
that he actually entered into a murder‐for‐hire agreement.
The Government in response submits that § 1958 “does not
require evidence of a mutual agreement, but instead requires
only that [the] defendant possess [the] ‘intent that a murder
be committed … as consideration for a promise or agree‐
ment to pay.’”17
In assessing these positions, we begin, as we always do,
with the text of the statute. That provision reads, in relevant
part, as follows:
Whoever travels in or causes another (in‐
cluding the intended victim) to travel in inter‐
state or foreign commerce, or uses or causes
another (including the intended victim) to use
the mail or any facility of interstate or foreign
commerce, with intent that a murder be com‐
mitted in violation of the laws of any State or
the United States as consideration for the re‐
16 In his reply brief, Mr. Dvorkin does contend, for the first time, that the
evidence of record is insufficient to show that he ever “actually harbored
the intent to have Larry Meyer … killed in exchange for something of
pecuniary value.” Reply Br. 4–5. Because Mr. Dvorkin raised this argu‐
ment for the first time in his reply brief, we consider it waived. See United
States v. Kennedy, 726 F.3d 968, 974 n.3 (7th Cir. 2013). Moreover, waiver
aside, we note that the evidence of Mr. Dvorkin’s criminal intent is more
than sufficient to sustain his § 1958 convictions.
17 Appellee’s Br. 33 (third alteration in original) (quoting 18 U.S.C.
§ 1958(a)).
12 No. 14‐2799
ceipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value,
or who conspires to do so, shall be [guilty of a
crime against the United States.]
18 U.S.C. § 1958(a).
In our view, the plain wording of this statute supports
the position of the Government. On its face, the statute sets
forth two elements of proof: (1) traveling in, or using a facili‐
ty of, interstate or foreign commerce, or causing another per‐
son to do so, (2) with the intent that a murder for hire be
committed. As for the nexus between these elements, we
have held that § 1958 requires that the defendant’s travel in,
or use of a facility of, interstate or foreign commerce be use‐
ful to, or in furtherance of, his murder‐for‐hire scheme. See
United States v. Richeson, 338 F.3d 653, 659 (7th Cir. 2003); see
also United States v. Weathers, 169 F.3d 336, 343 (6th Cir. 1999);
United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996).
In reaching this conclusion, we join the overwhelming
majority of circuits that have addressed the issue in holding
that the plain language of § 1958 does not require the exist‐
ence of an actual murder‐for‐hire agreement. See United
States v. Preacher, 631 F.3d 1201, 1203 (11th Cir. 2011) (per cu‐
riam) (“[O]nce the defendant uses an instrument of interstate
commerce with the intent that a murder‐for‐hire be commit‐
ted, the crime is completed.”); United States v. Driggers, 559
F.3d 1021, 1024 (9th Cir. 2009) (defining “the elements of a
section 1958 violation as ‘1) to cause another to travel in in‐
terstate commerce, 2) with the intent that a murder be com‐
mitted’ for hire” (alteration omitted) (emphasis in original)
(quoting United States v. Ritter, 989 F.2d 318, 321 (9th Cir.
1993)); Ng v. Att’y Gen. of the United States, 436 F.3d 392, 397
No. 14‐2799 13
(3d Cir. 2006) (noting that § 1958 requires “only proof of in‐
tent to enter into a murder‐for‐hire agreement and not of an
actual agreement”); United States v. Delpit, 94 F.3d 1134, 1149
(8th Cir. 1996) (“[Section 1958] outlaws using interstate‐
commerce facilities with the intent that murder‐for‐hire be
committed. Once the interstate‐commerce facility is used
with the required intent the crime is complete.”); United
States v. Ransbottom, 914 F.2d 743, 746 (6th Cir. 1990) (“On its
face, the statute at issue allows a conviction if the govern‐
ment proves that a defendant traveled in interstate com‐
merce with the intent that a contract murder be commit‐
ted. … [T]he statute gives no indication that [a] contract
must be in existence … at the time of the travel.”); see also
United States v. Bredimus, 352 F.3d 200, 207 (5th Cir. 2003)
(noting, in dicta, that “[s]ection 1958 requires only that the
government prove the defendant traveled in interstate or
foreign commerce with the intent that a murder be commit‐
ted for hire”). As these courts recognize, the statutory phrase
“consideration for a promise or agreement to pay” does not
create a separate “agreement element,” but rather modifies
the type of intent which a defendant must possess, namely,
the intent to commit a murder for hire. See, e.g., United States
v. Smith, 755 F.3d 645, 647 (8th Cir. 2014) (“To be convicted
of violating 18 U.S.C. § 1958(a) an individual need only trav‐
el or use a facility of interstate commerce, or cause another to
do so, intending a murder be committed for hire. … [Section]
1958(a) does not require that the offer have been made or ac‐
cepted before the statute is violated.” (emphasis in original)).
Our understanding of the plain wording of § 1958 is con‐
firmed by its statutory and legislative history. Section 1958
14 No. 14‐2799
was modeled on, and intended to supplement, the Travel
Act, 18 U.S.C. § 1952(a),18 which reads as follows:
(a) Whoever travels in interstate or foreign
commerce or uses the mail or any facility in in‐
terstate or foreign commerce, with intent to—
(1) distribute the proceeds of any un‐
lawful activity; or
(2) commit any crime of violence to fur‐
ther any unlawful activity; or
(3) otherwise promote, manage, estab‐
lish, carry on, or facilitate the promotion,
management, establishment, or carrying
on, of any unlawful activity,
and thereafter performs or attempts to per‐
form—
(A) an act described in paragraph
(1) or (3) shall be fined under this ti‐
tle, imprisoned not more than 5 years,
or both; or
(B) an act described in paragraph
(2) shall be fined under this title, im‐
18 See United States v. Marek, 238 F.3d 310, 317 n.29 (5th Cir. 2001) (en
banc) (noting “that it is appropriate to interpret § 1958 in light of § 1952
given that the two sections employ similar language, and that § 1958 was
intended to supplement § 1952”); S. Rep. No. 98‐225, at 306 (1984), as re‐
printed in 1984 U.S.C.C.A.N. 3182, 3485 (noting that § 1958 “follows the
format” of the Travel Act).
No. 14‐2799 15
prisoned for not more than 20 years,
or both, and if death results shall be
imprisoned for any term of years or
for life.
18 U.S.C. § 1952. A Travel Act violation consists of three
basic elements: (1) traveling in, or using a facility of, inter‐
state or foreign commerce, (2) with the intent to commit a
specified unlawful act, and (3) thereafter performing or at‐
tempting to perform that act. See United States v. Raineri, 670
F.2d 702, 715 (7th Cir. 1982).
Notably, unlike the Travel Act, § 1958 contains no re‐
quirement that a defendant carry out or otherwise attempt to
accomplish his criminal intent. That is, it contains no explicit
requirement that a defendant actually enter into a murder‐
for‐hire agreement. Because § 1958 was modeled on the
Travel Act, this omission is significant. “It is generally pre‐
sumed that Congress acts intentionally and purposefully
when it includes particular language in one section of a stat‐
ute but omits it in another.” City of Chicago v. Envtl. Def.
Fund, 511 U.S. 328, 338 (1994) (alteration omitted) (internal
quotation marks omitted). Here, this omission suggests that
Congress intended for § 1958 to require only that a defendant
travel in, or use a facility of, interstate commerce with the
requisite criminal intent. This understanding of the statute
accords with its legislative history, which indicates that
“[t]he gist of the offense is the travel in interstate commerce
or the use of the facilities of interstate commerce or of the
mails with the requisite intent … .” S. Rep. No. 98‐225, at 306
(1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3485.
Despite the clear import of the statute’s text and history,
Mr. Dvorkin nonetheless contends that our previous cases
16 No. 14‐2799
require a different result. He points to our decisions in Riche‐
son and United States v. Gibson, 530 F.3d 606 (7th Cir. 2008),
which, he asserts, interpret the word “consideration” in
§ 1958 as requiring proof that “the solicitor and the murder‐
er” reached “a promise or agreement.”19 Those decisions,
however, do not require proof of a separate agreement ele‐
ment (i.e., that an offer was made or accepted), but rather
merely clarify the meaning of “consideration” within the
context of § 1958’s intent element. See Gibson, 530 F.3d at 609
(“The issues Gibson raises involve the meaning of ‘consider‐
ation for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value.’”); Richeson,
338 F.3d at 657, 659 (addressing the defendant’s “argu[ment]
that the government never established his intent to pay for
the murders” and concluding that the “evidence plainly re‐
veal[ed his] intent to compensate his coconspirators”). In
neither case did we squarely face, or decide, whether § 1958
requires as an element that the defendant actually enter into
a murder‐for‐hire agreement. Similarly, although we stated
in United States v. Mandel, 647 F.3d 710 (7th Cir. 2011), that
§ 1958 requires proof that “something of pecuniary value
was promised or agreed to be paid in consideration of the
murder,” that statement clearly was dictum and was not
central to our holding, which merely addressed whether the
defendant “was entrapped into using a facility of interstate
commerce in furtherance of [a murder‐for‐hire] plot.”20 Id. at
19 Appellant’s Br. 17 (internal quotation marks omitted).
20 Indeed, Mandel’s citation to the Eleventh Circuit’s decision in Preacher
makes clear that we intended no disagreement with that court’s holding
that § 1958 requires only the use of an interstate commerce facility with
(continued…)
No. 14‐2799 17
717, 719. In sum, a close reading of our previous cases makes
clear that we never have had the occasion to address square‐
ly this precise issue.21
(…continued)
the necessary intent. See 647 F.3d at 717 (citing United States v. Preacher,
631 F.3d 1201, 1203 (11th Cir. 2011)); see also id. at 716 (noting, in dicta,
that “what section 1958 prohibits is the use of a facility of interstate
commerce … with the intent to commit a murder for hire”).
21 We note that the Second Circuit previously has made statements
which could be construed as inconsistent with the position we take here
today. See United States v. Hardwick, 523 F.3d 94, 99 (2d Cir. 2008) (“The
federal murder‐for‐hire statute proscribes a very limited category of be‐
havior; only those instances in which one party agrees to commit a mur‐
der in exchange for another party’s provision (or future promise) of
payment are punishable under § 1958.” (quoting United States v. Framp‐
ton, 382 F.3d 213, 217 (2d Cir. 2004))). Nevertheless, the Second Circuit’s
stance on this issue is not entirely clear. Although both Hardwick and
Frampton seem to indicate that § 1958 requires proof of an actual murder‐
for‐hire agreement, neither case squarely addresses that issue. Rather,
the disputed question in both cases was whether a given item or service
qualified as something of “pecuniary value” under § 1958. See Hardwick,
523 F.3d at 101 (addressing whether the defendant “intended the gun he
provided Trujillo to serve as consideration … for Trujillo’s promise to
murder the intended victim”); Frampton, 382 F.3d at 217–19 (addressing
whether an “unspecified future ‘favor’” could qualify as something of
“pecuniary value”). Further, both cases at times appear to recognize that
the statute’s reference to consideration merely modifies the type of intent
which a defendant must possess (i.e., the intent that a murder for hire be
committed). See Hardwick, 523 F.3d at 99 (reviewing whether the defend‐
ant “intended the gun he provided [a hitman] to serve as considera‐
tion”); Frampton, 382 F.3d at 218 (noting that “the relevant inquiry [was]
whether the evidence was sufficient to establish that [the defendants]
intended that [a] murder … take place in exchange for the provision of, or
a promise to pay, anything of pecuniary value” (emphasis added)). Un‐
(continued…)
18 No. 14‐2799
Given the text and history of the statute, we now hold
squarely that § 1958 does not require proof of an actual
murder‐for‐hire agreement, but rather only that the defend‐
ant act with the intent that a murder for hire be committed.
Because the Government was not required to prove the ex‐
istence of such an agreement, Mr. Dvorkin’s sufficiency of
the evidence claim must fail.
2.
Mr. Dvorkin also challenges his conviction under 18
U.S.C. § 373(a). That section reads, in relevant part, as fol‐
lows:
Whoever, with intent that another person en‐
gage in conduct constituting a felony that has
as an element the use, attempted use, or threat‐
ened use of physical force against property or
against the person of another in violation of the
laws of the United States, and under circum‐
stances strongly corroborative of that intent,
solicits, commands, induces, or otherwise en‐
deavors to persuade such other person to en‐
gage in such conduct, shall be [guilty of a
crime against the United States.]
18 U.S.C. § 373(a). To prove a violation of § 373(a), “the gov‐
ernment must establish (1) with strongly corroborative cir‐
(…continued)
der these circumstances, it is unclear where the Second Circuit stands on
this issue.
No. 14‐2799 19
cumstances that a defendant intended for another person to
commit a violent federal crime, and (2) that a defendant so‐
licited or otherwise endeavored to persuade the other person
to carry out the crime.” United States v. White, 610 F.3d 956,
959 (7th Cir. 2010) (per curiam).
Here, Mr. Dvorkin was charged with, and convicted of,
soliciting Bevis to violate § 1958. Therefore, the Government
was required to prove (1) that Mr. Dvorkin solicited Bevis to
use, or cause another to use, a facility of interstate commerce
with the intent that a murder for hire be committed, and (2)
that he actually intended Bevis to commit the offence, as ev‐
idenced by “strongly corroborative” circumstances.
Mr. Dvorkin challenges his conviction on both grounds.22
First, he submits that he “never reached any economic un‐
derstanding or agreement with Bevis” and “[t]hus [that] he
never solicited, commanded, induced, or otherwise endeav‐
ored to persuade Bevis to actually put any violent plan in
motion.”23 Second, he asserts that, although he “voiced his ill
will toward” Meyer, “he never consummated [that] ill will
with anything that was ‘strongly corroborative’ of his intent
to have Bevis actually put a plan into motion.”24
22 Notably, Mr. Dvorkin does not dispute that § 1958 is an offense “that
has as an element the use, attempted use, or threatened use of physical
force against property or against the person of another.” 18 U.S.C.
§ 373(a). We therefore assume without deciding that § 1958 qualifies as
such an offense.
23 Appellant’s Br. 12 (emphasis omitted).
24 Id. at 16 (internal quotation marks omitted).
20 No. 14‐2799
These contentions miss the mark. Starting with the solici‐
tation element, neither § 373(a) nor § 1958 requires that a de‐
fendant reach an economic understanding or agreement in
order to solicit a violation of § 1958. See Smith, 755 F.3d at 647
(noting that Ҥ 1958(a) does not require that [an] offer have
been made or accepted before the statute is violated”); Unit‐
ed States v. Barefoot, 754 F.3d 226, 238 (4th Cir. 2014) (noting
that “a straightforward request or directive fulfills the [solic‐
itation] element of § 373(a)”).25 Rather, the Government
merely was required to show that Mr. Dvorkin requested or
“endeavor[ed] to persuade” Bevis to engage in conduct pro‐
scribed by § 1958. 18 U.S.C. § 373(a). At trial, the Govern‐
ment argued that Mr. Dvorkin solicited Bevis to violate
§ 1958 on two occasions: (1) on April 6, when he offered Bev‐
is $50,000 to procure the murder of Meyer and gave him in‐
formation on Meyer’s Texas whereabouts, and (2) on April
18, when Mr. Dvorkin instructed Bevis to convince the Flor‐
ida hitman to accept $50,000 in exchange for killing Meyer.
These communications are each more than sufficient to sus‐
tain the jury’s finding of solicitation.
As for the intent element, the evidence of record amply
supports the jury’s finding that Mr. Dvorkin intended for
Bevis to engage in conduct proscribed by § 1958 “under cir‐
cumstances strongly corroborative of that intent.” Id. Evi‐
dence sufficient to strongly corroborate a defendant’s intent
includes, but is not limited to,
25 See also 2 Wayne R. LaFave, Substantive Criminal Law § 11.1 (2d ed.
2003) (“[T]he crime of solicitation requires no agreement or action by the
person solicited, and thus the solicitation is complete when the solicitor,
acting with the requisite intent, makes the command or request.”).
No. 14‐2799 21
evidence showing that the defendant: (1) of‐
fered or promised payment or some other ben‐
efit to the person solicited; (2) threatened to
punish or harm the solicitee for failing to
commit the offense; (3) repeatedly solicited the
commission of the offense or expressly stated
his seriousness; (4) knew or believed that the
person solicited had previously committed a
similar offense; or (5) acquired weapons, tools
or information, or made other preparations,
suited for use by the solicitee.
United States v. White, 698 F.3d 1005, 1015 (7th Cir. 2012) (per
curiam). Such circumstantial evidence is present here.
Mr. Dvorkin repeatedly solicited Bevis to arrange for the
contract killing of Meyer. He put together $50,000 in un‐
traceable funds to pay for the killing and, at one point, of‐
fered Bevis a $50,000 low‐interest loan in exchange for nego‐
tiating a lower price with the Florida hitman. Lastly, he ac‐
quired information on Meyer’s whereabouts (i.e., his
LinkedIn profile) for use in committing the offense. Togeth‐
er, these circumstances strongly corroborate Mr. Dvorkin’s
criminal intent. Accordingly, we conclude that the evidence
is sufficient to uphold his conviction under § 373(a).26
26 Mr. Dvorkin alternatively contends that the jury’s verdict is against
the manifest weight of the evidence for the same reasons asserted in his
sufficiency of the evidence challenges. We again disagree. As we have
explained, Mr. Dvorkin’s sufficiency arguments all proceed from an er‐
roneous understanding of §§ 1958 and 373 and, therefore, do not show
that the jury’s verdict is so weak as to warrant a new trial.
22 No. 14‐2799
B.
Mr. Dvorkin next contends that he presented sufficient
evidence to establish a renunciation defense under 18 U.S.C.
§ 373(b) and, consequently, that the district court erred in
denying his motion for acquittal with respect to his solicita‐
tion charge. We review a district court’s denial of a defend‐
ant’s motion for acquittal de novo. United States v. Mohamed,
759 F.3d 798, 803 (7th Cir. 2014). “[U]nlike a typical challenge
to the sufficiency of the evidence, [a] defendant’s burden is
even greater” where, as here, he contends that acquittal is
warranted based on an affirmative defense. United States v.
Waagner, 319 F.3d 962, 964 (7th Cir. 2003). To prevail on such
a claim, the defendant must show that the evidence, even
when viewed in the light most favorable to the Government,
is “so one‐sided that” a rational jury could not reach “any
decision [other than] a finding of not guilty” based on the
defense asserted. Id.; see also United States v. Sax, 39 F.3d
1380, 1385 (7th Cir. 1994).
Section 373(b) of Title 18 provides a renunciation defense
for defendants charged with violating § 373(a).27 To establish
27 Section 373(b) reads as follows:
It is an affirmative defense to a prosecution under this
section that, under circumstances manifesting a volun‐
tary and complete renunciation of his criminal intent,
the defendant prevented the commission of the crime so‐
licited. A renunciation is not “voluntary and complete”
if it is motivated in whole or in part by a decision to
postpone the commission of the crime until another time
or to substitute another victim or another but similar ob‐
jective. If the defendant raises the affirmative defense at
(continued…)
No. 14‐2799 23
the defense, a defendant must show (1) that he “prevented
the commission of the crime solicited,” and (2) that he did so
“under circumstances manifesting a voluntary and complete
renunciation of his criminal intent.” 18 U.S.C. § 373(b). A re‐
nunciation is not “complete” if it is tentative, conditional, or
otherwise “motivated in whole or in part by a decision to
postpone the commission of the crime until another time.”
Id. Relatedly, a renunciation “is not voluntary if it is moti‐
vated, in whole or in part, by circumstances, not present or
apparent at the inception of the actor’s course of conduct,
that increase the probability of detection or apprehen‐
sion … .” Model Penal Code § 5.01(4); accord United States v.
Dworken, 855 F.2d 12, 22 (1st Cir. 1988); 21 Am. Jur. 2d Crimi‐
nal Law § 157 (2008); 4 Charles E. Torcia, Wharton’s Criminal
Law § 700 (15th ed. 1996); 22 C.J.S. Criminal Law § 161 (2006).
Mr. Dvorkin submits that he renounced his criminal in‐
tent on three different occasions: (1) on April 30, when he
told Bevis that he had a “different avenue” that he wanted to
take with regard to killing Meyer,28 (2) on May 7, when he
instructed Bevis to tell the Florida hitman that “it fell
through,”29 and (3) on May 11, when he told Bevis that the
plan was “all stopped” and that he was “just gonna get on
(…continued)
trial, the defendant has the burden of proving the de‐
fense by a preponderance of the evidence.
18 U.S.C. § 373(b).
28 R.174 at 92.
29 R.146‐4 at 2.
24 No. 14‐2799
with [his] life” and deal with Meyer through legal means.30
In response, the Government contends that Mr. Dvorkin
cannot establish this defense because Bevis already had
completed the solicited § 1958 offense well before April 30
and, in any event, none of his alleged renunciations were
voluntary and complete.31
We agree with the Government on both of its conten‐
tions. First, to invoke § 373(b)’s renunciation defense, a de‐
fendant must “actually prevent[] the commission of the
crime [solicited] (not merely ma[k]e efforts to prevent it).” S.
Rep. No. 98‐225, at 309 (1984), as reprinted in 1984
U.S.C.C.A.N. 3182, 3489. “[O]nce a crime is complete[], it
logically can no longer be” prevented. Preacher, 631 F.3d at
1204. Here, as far as Mr. Dvorkin knew, Bevis had completed
the solicited § 1958 offense as early as April 18, when he told
Mr. Dvorkin that he had traveled to Florida to arrange for a
hitman to kill Meyer. Because, for solicitation purposes, a
“defendant’s culpability is to be measured by the circum‐
stances as he believes them to be,” United States v. Devorkin,
159 F.3d 465, 467 n.2 (9th Cir. 1998) (quoting 2 Wayne R.
LaFave & Austin W. Scott Jr., Substantive Criminal Law § 6.1
(1st ed. 1986)), a reasonable jury easily could conclude that
Mr. Dvorkin had failed to “prevent[] the commission of the
crime solicited,” 18 U.S.C. § 373(b).
30 R.146‐7 at 4–5.
31 The Government also contends that Mr. Dvorkin waived, or at least
forfeited, his renunciation defense by failing to assert it at trial. Because
we conclude that this defense fails on its merits, we need not decide
whether it was preserved. See United States v. Gonzalez‐Mendoza, 584 F.3d
726, 730 n.7 (7th Cir. 2009).
No. 14‐2799 25
Second, regardless of timing, the record does not estab‐
lish, as a matter of law, that Mr. Dvorkin voluntarily and
completely renounced his criminal intent. With respect to his
April 30 and May 7 statements, a jury viewing those com‐
munications reasonably could conclude that Mr. Dvorkin
merely had put his plan to use the Florida hitman on hold.
Although he did, on May 7, instruct Bevis to tell the Florida
hitman that “it fell through,” after discussing the issue fur‐
ther, he ultimately asked Bevis to negotiate a lower price
with the Florida hitman. When Bevis later did so,
Mr. Dvorkin, far from abandoning his criminal plan, indicat‐
ed that he would use the Florida hitman if the “other ave‐
nue” killer failed to complete the task by May 18. Given
these facts, we cannot say, as a matter of law, that
Mr. Dvorkin’s April 30 and May 7 communications with
Bevis constitute a “complete” renunciation of his criminal
intent.
The only statement by Mr. Dvorkin that comes anywhere
close to evincing a “complete” renunciation of his criminal
intent was his May 11 phone conversation with Bevis. That
renunciation, however, occurred four days after the FBI had
confronted Mr. Dvorkin about his plan to kill Meyer. Under
these circumstances, a reasonable jury certainly could con‐
clude that Mr. Dvorkin’s May 11 renunciation was not vol‐
untary.
In sum, we cannot say that the evidence in favor of
Mr. Dvorkin’s renunciation defense was so one‐sided as to
require his acquittal as a matter of law. The district court
properly upheld his conviction for solicitation.
26 No. 14‐2799
C.
We next consider Mr. Dvorkin’s contention that the dis‐
trict court improperly restricted his cross‐examination of
Bevis in violation of Federal Rule of Evidence 608(b). “We
review the district court’s decision to limit the scope of
cross‐examination for an abuse of discretion.” United States
v. Holt, 486 F.3d 997, 1000–01 (7th Cir. 2007). “If an error is
found, the verdict will not be reversed if the error was harm‐
less.” United States v. Del Valle, 674 F.3d 696, 702 (7th Cir.
2012).
1.
Before trial, Mr. Dvorkin filed a motion in limine seeking
to admit documentary evidence which, he claimed,
“show[ed] a history of dishonest conduct by Bevis.”32 In par‐
ticular, Mr. Dvorkin sought to admit (1) a 2011 order from
the Illinois Secretary of State finding that Bevis unlawfully
had sold unregistered securities and, as a result, permanent‐
ly barring him from offering or selling securities in the state
(the “2011 order”), and (2) a 2012 civil complaint filed
against Bevis in Illinois state court based on that same un‐
lawful conduct (the “2012 complaint”).
The district court held a hearing on Mr. Dvorkin’s mo‐
tion. At the hearing, the court determined that Mr. Dvorkin
could neither introduce nor cross‐examine Bevis about the
2011 order or the 2012 complaint. The court, however, did
clarify that Mr. Dvorkin could “inquire into [the] specific in‐
32 R.56 at 6.
No. 14‐2799 27
stances of misconduct underlying the” 2011 order and 2012
complaint provided that he did so “without mentioning” ei‐
ther piece of evidence.33 The court explained its reasoning
for this distinction as follows:
[U]nder [Rule] 608, if you are going to try to
get in specific instances of conduct that go to
truthfulness or untruthfulness, you cannot in‐
troduce extrinsic evidence.
And by asking questions about a lawsuit or
a Secretary of State finding, that is a way of in‐
troducing extrinsic evidence through the wit‐
ness himself.
So it basically tucks into the—tucks into the
question of extrinsic evidence, and that is
barred under 608.[34]
At trial, defense counsel cross‐examined Bevis about the
specific instances of misconduct underlying both the 2011
order and the 2012 complaint. In response, Bevis acknowl‐
edged that, in 2006, he had sold unregistered securities of a
company that he had jointly founded. Defense counsel then
inquired whether Bevis had “been barred from issuing any
stock by the State of Illinois.”35 The Government objected to
this question, and the court sustained the objection. Later, at
33 R.67 at 7.
34 R.106 at 26.
35 R.175 at 108.
28 No. 14‐2799
a sidebar, the court asked defense counsel what basis he had
for asking the question, triggering the following exchange:
MR. FRANKEL: I think it goes directly back to
the representations he made
about the issuance of the
stock, and it shows that, you
know, it corroborates that
there was no stock ever regis‐
tered or issued.
THE COURT: So that’s extrinsic evidence of
a third‐party, a government
agency’s view of—a view of
the—some finding that
Mr. Bevis must not register
any other securities; but I
said that that was barred.
MR. FRANKEL: That specific issue was
barred. I don’t think that you
said that that was barred.
THE COURT: Yes, third‐party, essentially,
opinion evidence that the—
that the witness made a false
statement is extrinsic, and I
barred it in the form of the Il‐
linois Secretary of State find‐
ings, as well as even the
complaint, you know, that
others made. …
… .
No. 14‐2799 29
THE COURT: … [G]oing forward, … you
must not refer to a third‐
party, either the complaint
on or about the finding. The
exception being, you may
generically refer to the filing
of a civil case against Mr.
Bevis in 2009, where he made
the accusation that his oppo‐
nent had asked him to plant
drug evidence. So that, for
foundation purposes, that
can come in, but not—no ref‐
erences to, you know, Secre‐
tary of State findings or any
other third‐party complaints.
… .
MR. WALLIN: One other thing as a point of
clarification. Can we ask
whether or not he was aware
that the law in Illinois re‐
quired him to register securi‐
ties?
THE COURT: No. This 608 impeachment
has to be cabined fairly be‐
cause of its potential for mis‐
chief and to distract the jury,
as is happening right now,
and so that doesn’t get the
specific, you know, falsities
or not of a representation
30 No. 14‐2799
that you made to someone
else.
MR. WALLIN: Okay.[36]
Upon resuming his cross‐examination, defense counsel did
not again reference the 2011 order or 2012 complaint.
2.
Rule 608(b) provides that “extrinsic evidence is not ad‐
missible to prove specific instances of a witness’s conduct in
order to attack or support the witness’s character for truth‐
fulness,” but that a “court may, on cross‐examination, allow
them to be inquired into if they are probative of the [wit‐
ness’s] character for truthfulness or untruthfulness.” Fed. R.
Evid. 608(b). As we previously have recognized, Rule 608(b)
“only prohibits the use of extrinsic evidence, not lines of
questioning.” Holt, 486 F.3d at 1002; accord United States v.
Dawson, 434 F.3d 956, 958–59 (7th Cir. 2006). Consequently,
the rule “does not mandate the prohibition of questions re‐
garding the punishment imposed on a witness for a given
course of conduct,” Holt, 486 F.3d at 1002, nor does it pre‐
clude cross‐examination “about a third party’s opinion of [a
witness’s] credibility,” Dawson, 434 F.3d at 959. “[S]uch ques‐
tions,” we have explained, “are outside the scope of Rule
608(b).” Id.
This, of course, does not mean “that every question a
lawyer might want to ask [on these matters] would be prop‐
er cross‐examination.” Id. “Rule 608(b) leaves the trial judge
36 Id. at 112–14. We have reformatted the trial transcript for readability.
No. 14‐2799 31
with broad discretion to limit such questioning, stating only
that prior instances of conduct ‘may’ be inquired of …, if
probative of truthfulness or untruthfulness.” Holt, 486 F.3d
at 1002 (internal quotation marks omitted). Put differently,
such questioning often will be subject to exclusion on other
grounds, such as hearsay or Rule 403. See id.; see also Thomp‐
son v. City of Chicago, 722 F.3d 963, 977 (7th Cir. 2013).
Here, Mr. Dvorkin contends that the district court abused
its discretion by limiting his cross‐examination of Bevis
based on an incorrect interpretation of Rule 608(b). In light
of this circuit’s precedent, we must agree. Under Dawson and
Holt, the district court’s only stated reason for barring Mr.
Dvorkin from questioning Bevis about the 2011 order and
the 2012 complaint was erroneous.37 Rule 608(b) does not
prohibit “lines of questioning,” including those “regarding
the punishment imposed on a witness for a given course of
conduct.” Holt, 486 F.3d at 1002.38
37 The Government contends that the district court offered other reasons,
aside from Rule 608(b), for limiting Mr. Dvorkin’s cross‐examination of
Bevis and, consequently, that the district court did not abuse its discre‐
tion. Although we agree that the district court would not have abused its
discretion had it offered a legitimate, independent reason for its ruling,
see United States v. Holt, 486 F.3d 997, 1002 (7th Cir. 2007), the record here
clearly shows that it never did so.
38 As the Government correctly notes, our interpretation of Rule 608(b) in
United States v. Dawson, 434 F.3d 956 (7th Cir. 2006), conflicts with the
position of both the Advisory Committee and the Third Circuit, see Fed.
R. Evid. 608 advisory committee’s note to 2003 amendment; United States
v. Davis, 183 F.3d 231, 257 n.12 (3d Cir.), amended by 197 F.3d 662 (3d Cir.
1999), and has been criticized and not followed by some commentators,
see 4 Michael H. Graham, Handbook of Federal Evidence § 608:4 (7th ed.
(continued…)
32 No. 14‐2799
That the court erred in excluding this evidence, however,
does not end our analysis. “[E]videntiary errors are subject
to harmless error review.” United States v. Vargas, 689 F.3d
867, 875 (7th Cir. 2012); see also United States v. Useni, 516
F.3d 634, 651–52 (7th Cir. 2008) (noting that we will only re‐
verse a conviction based on a nonharmless evidentiary er‐
ror). “To determine whether an evidentiary error is harm‐
less, we consider whether, to the average juror, the prosecu‐
tion’s case would have been significantly less persuasive ab‐
sent the error.” United States v. DeMarco, 784 F.3d 388, 394
(7th Cir. 2015); see also United States v. Gomez, 763 F.3d 845,
863 (7th Cir. 2014) (en banc).
Here, the evidence of Mr. Dvorkin’s guilt was substantial
and would not have been any less so had he been allowed to
cross‐examine Bevis about the 2011 order or the 2012 com‐
plaint. Almost every conversation between Bevis and
Mr. Dvorkin was proven by audio recordings; those that
were not recorded were substantiated by other physical evi‐
dence. Moreover, on cross‐examination, Bevis admitted to
(…continued)
2012) (criticizing our holding in Dawson); 1 Kenneth S. Broun et al.,
McCormick on Evidence § 41 (7th ed. 2013) (endorsing the interpretation of
the Advisory Committee). However, the other circuits to have ruled on
the matter agree with our view. See United States v. Woodard, 699 F.3d
1188, 1195 (10th Cir. 2012); United States v. Cedeño, 644 F.3d 79, 82–83 (2d
Cir. 2011); United States v. Whitehead, 618 F.2d 523, 529 (4th Cir. 1980); see
also Peter Walkingshaw, Note, Prior Judicial Findings of Police Perjury:
When Hearsay Presented as Character Evidence Might Not Be Such a Bad
Thing, 47 Colum. J.L. & Soc. Probs. 1, 20 (2013) (noting that “the con‐
sistent trend among the Circuits has been to … allow cross‐examination
into the consequences of prior conduct by a witness that tends to show
dishonesty (at least in the absence of a hearsay objection)”).
No. 14‐2799 33
the specific instances of misconduct underlying the 2011 or‐
der and the 2012 complaint (i.e., selling unregistered securi‐
ties). Given these circumstances, the fact that Bevis was sanc‐
tioned and later sued for his misconduct is of de minimis
probative value and certainly would not have rendered the
Government’s case “significantly less persuasive.” See De‐
Marco, 784 F.3d at 394; see also United States v. Cavender, 228
F.3d 792, 799 (7th Cir. 2000) (“An error in the refusal to ad‐
mit evidence is harmless if the evidence of guilt was over‐
whelming and the defendant was allowed to put on a de‐
fense, even if that defense was not as complete as the de‐
fendant might have preferred.”). We therefore conclude that
the district court’s error was harmless and thus does not
warrant reversal.
D.
Finally, Mr. Dvorkin submits that the Government made
an improper argument during its rebuttal at closing, thereby
depriving him of a fair trial. “In reviewing a claim of prose‐
cutorial misconduct, we consider first whether the chal‐
lenged remark by the prosecutor was improper, and second,
whether it prejudiced the defendant.” United States v. Wes‐
cott, 576 F.3d 347, 355 (7th Cir. 2009). A prosecutorial com‐
ment during closing arguments is improper if it is “aimed at
inflaming the passions of the jury.” United States v. Caliendo,
910 F.2d 429, 436 (7th Cir. 1990).
Here, Mr. Dvorkin contends that the following remarks
made by the Government during its rebuttal argument were
improper:
34 No. 14‐2799
[GOVERNMENT]: The victim here is Larry
Meyer. And it is—it is of‐
fensive to think that
Mr. Dvorkin gets out of
the responsibility of his ac‐
tions, of his words, of his
choices—
MR. FRANKEL: Objection, Judge. Getting
out of responsibility, that’s
an improper argument. It’s
about the facts and the ev‐
idence, Judge.
THE COURT: Overruled.
[GOVERNMENT]: That he gets out of the re‐
sponsibility of his own ac‐
tions and words and
choices here because
Mr. Bevis didn’t just walk
away in that parking lot
meeting. It’s offensive.
MR. FRANKEL: Objection, Judge.
THE COURT: Overruled.[39]
According to Mr. Dvorkin, the prosecutor’s suggestion that
he was attempting to get out of responsibility for his actions
was “designed to appeal to the passions, fears, and vulnera‐
bilities of the jury.”40 For its part, the Government submits
39 R.178 at 81. We have reformatted the trial transcript for readability.
40 Appellant’s Br. 38.
No. 14‐2799 35
that these statements properly were made in response to the
following argument by the defense at closing:
April 6th. This is the very first meeting,
supposedly, between Bevis, where Bevis sup‐
posedly claims Dvorkin asked him about find‐
ing a hit man. Bevis says that Dan told him he
wanted Larry Meyer to stop breathing. And
here’s what we know. Bevis does not tell Dan
it’s a bad idea. He does not tell Dan to drop it.
He does not tell Dan he is asking him to do
something illegal and is going to go to the po‐
lice. He doesn’t behave—we’re talking normal
here. Mr. Perconte used the word normal. He
does not behave normally.
Instead, he says he knows a hit
man … .And as of April 6th, there’s no solicita‐
tion; there’s no agreement; there’s no money;
and nobody is hired. On April 6th there was no
solicitation. There’s no agreement, no money,
and nobody hired.[41]
We do not perceive any impropriety in the Government’s
remarks. The prosecutor merely stated that Mr. Dvorkin
cannot avoid liability for his actions simply because Bevis
did not “walk away” from Mr. Dvorkin’s proposal. This
statement is neither inaccurate, nor likely to invite the jury to
decide the case on an improper basis. Further, even if these
statements were improper (and they are not), they were not
41 R.178 at 63–64.
36 No. 14‐2799
so prejudicial as to deprive Mr. Dvorkin of a fair trial. These
comments were brief, isolated, and made in direct response
to defense counsel’s insinuation that Bevis’s failure to dis‐
sent from Mr. Dvorkin’s proposal was somehow probative
of Mr. Dvorkin’s innocence. See Bartlett v. Battaglia, 453 F.3d
796, 803 (7th Cir. 2006) (“Where defense counsel has ‘invited’
a response, a prosecutor’s otherwise improper remarks will
not warrant reversal of a conviction if they do nothing more
than ‘right the scale.’” (quoting United States v. Young, 470
U.S. 1, 12–13 (1985)). In sum, because the contested remarks
were neither improper nor prejudicial, they did not deprive
Mr. Dvorkin of a fair trial.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
