author: HAMILTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael “Mickey” DAVIS, Defendant-Appellant.
    No. 15-3671
    United States Court of Appeals, Seventh Circuit.
    Argued September 27, 2016
    Decided December 30, 2016

      Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Thomas Anthony Durkin, Robin V. Waters, Attorneys, Durkin & Roberts, Christopher Grohman, Attorney, Duane Morris LLP, Chicago, IL, John D. Cline, Attorney, Law Office of John D. Cline, San Francisco, CA, for Defendant-Appellant.
    Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

In June 2012, defendant Michael “Mickey” Davis made a $300,000 start-up loan to Ideal Motors, Inc., a car dealership in Melrose Park, Illinois, owned by R.J. Ser-pico and his father Joseph Serpico. Within a matter of months, Joseph had gambled the money away and Ideal Motors had fallen deep in arrears. The following summer, a man named “Mickey” conspired to have R.J. Serpico’s legs broken. Though the scheme was never carried out, defendant Davis was eventually convicted at trial of attempted extortion and using extortionate means to collect a loan.

Davis has appealed, raising five issues. The first is whether the district court erred by admitting against Davis the out-of-court statements by several people involved in the conspiracy to hurt Serpico. The second is whether the district court abused its discretion in allowing the prosecutors to impeach the testimony of a key prosecution witness with his prior inconsistent statements to government agents. Those two issues are substantial, but we find no reversible error. Davis raises three other issues concerning witness immunity, the scope of cross-examination, and the government’s closing argument. Those issues also provide no grounds for setting aside the convictions. We affirm Davis’s convictions and sentence.

I. Co-Conspirator Statements

A. The Government’s Case

To set the stage for the legal issues, we first summarize the government’s theory that Davis became angry with the Serpicos and turned to violent means to punish R.J. Serpico for the default on the outstanding debt. The scheme came to light when Paul Carparelli, a reputed Chicagoland mobster, contacted George Brown, his long-time associate. Brown was then cooperating with the FBI and recorded a number of relevant telephone calls. Carparelli told Brown that their mutual “friend ... in Burr Ridge” — a restaurant owner named Gigi Rovito — had a “job” for them. During a series of conversations.among Carparelli, Brown, and Gigi’s brother John Rovito, the details of the job came into focus. The target; R.J. Serpico, the manager of a local Ford dealership. The mission: a “thorough” beating. The payout: “ten thousand clams.” And the client? The mysterious “Mickey,” a “partner” of a man named Solly DeLaurentis.

The scheme was not just talk. On July 11,2013, “Mickey” delivered a $5000 down-payment to Gigi Rovito, who forwarded the payment to Carparelli via John Rovito. On July 16, Carparelli told Brown that their client was “breathin’ down my f* * *in’ neck.” Later that day, John Rovito told Brown that he would place an “anonymous phone call” to the Ford dealership to investigate R.J. Serpico’s working hours. Rovito . said that he would tell their client the job would be “handled” by the following .weekend. On July 17, at the direction of the FBI, Brown told Carparelli that he had identified Serpico’s home address. On July 21, in an effort to stall for time, Brown told Carparelli that two (fictitious) hit-men he had hired to attack Serpico had visited his home and spotted Serpico but had called off the attack after Serpico’s wife and children appeared. Fortunately for Serpico, the scheme ended two days later when FBI agents arrested Carparelli and seized the $5000 down-payment from his residence.

The defendant in this case, Mickey Davis, was never recorded on any of the calls, but the government convinced a jury that Davis was the “Mickey” who had ordered the beating of R.J. Serpico and advanced the $5000 down-payment. The jury found Davis guilty of using extortionate means to collect a debt in violation of 18 U.S.C. § 894 and attempting to affect commerce by extortion in violation of 18 U.S.C. § 1951.

B. The Co-Conspirator Statements

To prove that Davis was the mysterious “Mickey,” the government relied in large part on recorded conversations among George Brown, John Rovito, and Paul Carparelli. These recordings were admitted as co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E). Davis contends the district court erred by admitting these statements because the government failed to lay a sufficient foundation to support a finding that Davis was a member of the conspiracy. We review the district court’s evidentiary rulings for abuse of discretion, with any findings of fact reviewed for clear error. United States v. Pust, 798 F.3d 597, 602 (7th Cir. 2015).

Under Rule 801(d)(2)(E), co-conspirator statements are admissible against a defendant if the trial judge finds by a preponderance of the evidence that (1) a conspiracy existed, (2) the defendant and the declarant were involved in the conspiracy, and (3) the statements were made during and in furtherance of the conspiracy. E.g., United States v. Haynie, 179 F.3d 1048, 1050 (7th Cir. 1999), citing United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997). Under long-settled circuit law, a district court may admit co-conspirator statements conditionally based on the government’s pretrial proffer, known in this circuit as a “Santiago proffer.” See United States v. Santiago, 582 F.2d 1128, 1130-31 (7th Cir. 1978), overruled in part on other grounds by Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). “If at the close of its case the prosecution has not met its burden to show that the statements are admissible, the defendant can move for a mistrial or to have the statements stricken.” Haynie, 179 F.3d at 1050.

In considering whether to admit alleged co-conspirator statements conditionally, the district court may consider the contents of the statements themselves. See Bourjaily, 483 U.S. at 180, 107 S.Ct. 2775. However, the record must also contain independent evidence corroborating the existence of the conspiracy and the participation of defendant and declarant. Standing alone, the statements themselves will not suffice. United States v. Harris, 585 F.3d 394, 399 (7th Cir. 2009).

The Santiago procedure requires the government to close the evidentiary loop at trial. The procedure assumes the government knows what its witnesses will say at trial. Cooperating witnesses, however, can be unpredictable. This case poses the problem of a Santiago proffer that the government could not satisfy completely.

In this case, the government’s detailed Santiago proffer described the evidence it intended to introduce at trial to show that Davis conspired with the men whose telephone calls were recorded. The proffer highlighted the expected testimony from John Rovito, including the following:

• That Gigi Rovito asked John Rovito to recruit Carparelli to conduct the beating, and that John did so;
• That John Rovito observed Davis at Gigi Rovito’s restaurant on the night of the down-payment; and
• That Carparelli told John Rovito that “the beating was in relation to a car dealership.”

Rovito’s trial testimony differed from the government’s proffer in several respects. He testified, for instance, that he first learned about the beating conspiracy from either Carparelli or Brown and that he did not recall “having a conversation with Gigi about a beating or his friend Mickey about a beating.” John Rovito acknowledged that Gigi had introduced him to a “Mickey” at one point, but he testified that he did not recall seeing “Mickey” at Gigi’s restaurant the night he retrieved the down-payment. John Rovito later repeated that he “recalled] meeting the gentleman one time,” perhaps as early as two weeks before he retrieved the down-payment. Most significant, Rovito flatly denied any knowledge that the beating had anything to do with a car dealership, testifying variously that he did not know “what was going on, what it was for,” that he had “no knowledge” of “Mickey’s” and R.J. Serpico’s involvement with a car dealership, that he did not “recall any dealership,” and that he did not recall telling the FBI any differently.

When the government’s evidence does not fulfill its Santiago proffer in key respects, the trial judge must take a fresh look at the admissibility of co-conspirator statements to decide whether the evidence actually offered at trial satisfies the government’s burden under Rule 801(d)(2)(E). At various points during Davis’s trial, in response to defense objections, the judge determined that the government had carried its burden. Those determinations were not an abuse of discretion. Even without John Rovito’s testimony on those several points the government had expected from him, the government offered sufficient evidence to support the district court’s finding that Rule 801(d)(2)(E) was satisfied so as to allow the co-conspirator evidence.

First, it is beyond dispute that somebody called “Mickey” wanted R.J. Serpi-co’s legs broken and that a group had formed to carry out the attack. John Rovi-to and Paul Carparelli were unquestionably part of the conspiracy, and they implicated Gigi Rovito. George Brown acted the part, though as noted above he was an FBI cooperator. In a July 16, 2013 call, John Rovito told Brown that he expected to see their “friend” shortly and that he would tell the friend the job would be handled by the following weekend. At trial, John Rovito testified that he had been referring in that conversation to “Gigi’s friend ... Mickey.” John also testified that Gigi told him “Mickey” was the person who wanted the beating. In another call, Carparelli told Brown that the client was “Solly D’s partner-Mickey, partner, Mickey, Solly DeLaurentis.” Davis himself acknowledged in a statement to the FBI that he frequented Gigi’s restaurant, that he knew both Rovitos, and that DeLaurentis was his good friend.

The government also offered evidence of Davis’s motive to pursue the beating. Davis lost $200,000 on the Ideal Motors loan, and he told the FBI himself that he was “extremely pissed off.” He demonstrated that anger on at least two occasions. In January 2013, Davis confronted R.J. Serpico in his office at the Ideal Motors facility. As Serpico described it, Davis had “what looked to be like a sheet of ... gambling bets in his hand and he put it down on [the] desk and leaned over and sa[id] this wasn’t the f* * *ing agreement.” (Recall that Serpico’s father Joseph had gambled away the loan proceeds.) Davis then asked a series of personal questions about Serpico’s wife and children. The questions showed that Davis knew a great deal about Serpico’s family and their activities and movements that Serpico had never told him. For instance, Davis asked whether the Serpicos still lived in Park Ridge; he also asked about the ages of Serpico’s children and whether his wife still owned a beauty salon in a particular suburb. Serpico testified that he had never told Davis where he lived, how old his children were, or where his wife’s salon was located. Serpico perceived that he was “getting threatened,” and that his “wife and ... kids were getting threatened.”

Later, after Serpico left Ideal Motors and alerted another creditor about vehicles that Davis had arranged to have towed to a different lot, Davis called Serpico and demanded an explanation. The conversation ended cryptically, with Davis saying: “If that’s the way it is going to be, then, okay, fíne, f*1 * * it, that’s the way it is going to be.”

Additional circumstantial evidence tied Davis to the conspiracy. Cell phone records indicate that he and Gigi Rovito were in frequent, increasing contact from January through July 2013, with 113 calls during that period and 47 in July alone. On July 2, 2013 — the same day that Carparelli first contacted Brown about the “job”— Davis and Gigi had multiple phone conversations; John Rovito and Carparelli wei’e in close contact that day as well. Historic cell site location data placed Davis in the general vicinity of Gigi’s restaurant on the evening of July 11, 2013, the night that Gigi delivered the down-payment to John Rovito. At 8:54 that evening and again at 9:19, Gigi spoke with Davis. At 9:27, John Rovito called Gigi. Minutes later, John called Carparelli — and at 9:50, while Davis was still within a couple of miles of Gigi’s restaurant, Carparelli texted George Brown to tell him that “the package” had been delivered. These phone records were not conclusive by themselves, but they added weight to the government’s theory.

Finally, although the government never asked John Rovito to identify Davis in court as the “Mickey” with whom he was familiar, Rovito did testify concerning “Mickey’s” appearance, describing him as a “big guy .., like a body builder,” with “slick black hair” and a tan complexion. Davis, of course, was sitting in court, and the jury and the district judge had an opportunity to observe him and to compare his appearance with Rovito’s description of the “Mickey” in the conspiracy. (Consistent with Rovito’s testimony, the presen-tence investigation report described Davis as six feet tall and weighing 232 pounds.)

To be sure, none of the evidence we have just recounted proves definitively Davis’s role in the beating conspiracy. But definitive proof or proof beyond a reasonable doubt is not the standard for admissibility under Rule 801(d)(2)(E), nor is the judge’s consideration limited to the independent evidence of the conspiracy and the defendant’s role in it. Rather, the district judge must be persuaded by a preponderance of the evidence that both the defendant and the declarant were involved in a conspiracy and that the out-of-court statements were made in furtherance of that conspiracy. Bourjaily, 483 U.S. at 176,107 S.Ct. 2775; Haynie, 179 F.3d at 1050. The government is entitled to have the judge consider the contents of the alleged co-conspirator statements in making the preliminary determination under Rule 801(d)(2)(E). Bourjaily, 483 U.S. at 181, 107 S.Ct. 2775 (rejecting “bootstrapping” rule that would bar consideration of statements themselves in deciding their admissibility).

The government’s case would have been stronger if John Rovito had testified in a manner entirely consistent with the government’s pretrial Santiago proffer. Still, the evidence supporting admission of the co-conspirator statements was strong enough to survive Rovito’s often evasive testimony. The circumstantial evidence was substantial — and the out-of-court co-conspirator statements themselves, coupled with that circumstantial evidence, provided a sufficient foundation from which the district judge could conclude that Davis was more likely than not a member of the conspiracy to beat R.J. Serpico. Those out-of-court statements, spanning 76 pages of telephone transcripts, cast light on the membership, scope, and objectives of the conspiracy. The conspirators spoke about their victim’s identity, his home and workplace, and his schedule; about their client, “Mickey,” the “partner” of Solly DeLaurentis; about the “thorough” beating that “Mickey” had ordered and the (fictitious) hit-men George Brown claimed to have hired; about the $10,000 fee and how it would be apportioned; and about the increasing urgency of the assignment and the potential consequences of failure.

Considering the independent evidence that the conspiracy existed and tending to show that Davis participated in it, as well as the out-of-court statements themselves, there was a sufficient basis to justify placing the out-of-court statements before the jury. The district judge did not err in admitting the co-conspirators’ statements into evidence under Rule 801(d)(2)(E).

II. Impeachment of John Rovito

Davis next argues that the district court erred in allowing the government to question John Rovito about his prior inconsistent statements to law enforcement and compounded its error by failing to issue a contemporaneous limiting instruction. We review these decisions for abuse of discretion. See United States v. Spiller, 261 F.3d 683, 689 (7th Cir. 2001).

John Rovito was, to put it mildly, a difficult witness for the government. During his two days of testimony, he answered the government’s questions over one hundred times with some variation of “I don’t recall,” “I’m not 100 percent sure,” or an ambivalent “it’s possible.” At certain points, his testimony departed materially from statements he had given earlier to FBI investigators. Three of these differences were discussed in Part I above in connection with the government’s Santiago proffer (whether Gigi Rovito asked John Rovito to recruit Carparelli; whether John observed Davis at Gigi’s restaurant the night of the down-payment; and whether John understood that the beating concerned a car dealership). Other inconsistencies emerged at trial. For example, Ro-vito denied using a special term to refer to broken legs when he had previously told the FBI that “the big guy” (the client) wanted “lowers.” To impeach some of his testimony, the government questioned Ro-vito about some of his out-of-court statements, which were memorialized in FBI FD-302 reports. Davis objected to the use of those out-of-court statements at trial, and he maintains that objection on appeal.

Under Federal Rule of Evidence 607, any party — including the party that called a witness — may attack the witness’s credibility. See United States v. Bileck, 776 F.2d 195, 198 (7th Cir. 1985) (“[T]he government had no choice in whom the defendant chose as his compatriots, and should not be required to vouch for their credibility.”). We have long recognized, however, that it would be an abuse of Rule 607 for the prosecution to “call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence — or, if it didn’t miss it, would ignore it.” United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984); see also United States v, Kane, 944 F.2d 1406, 1411 (7th Cir. 1991) (“Impeachment of one’s own witness cannot be permitted where employed as a mere subterfuge to present to the jury evidence not otherwise admissible.”). The exception identified in Webster and Kane is a narrow one. The test is “whether the prosecution calls the witness in bad faith.” United States v. Burt, 495 F.3d 733, 737 (7th Cir. 2007), citing Kane, 944 F.2d at 1412, and Webster, 734 F.2d at 1193.

In this case, before John Rovito took the stand, his own lawyer advised the court, the prosecution, and defense counsel that Rovito disagreed with some of the material in the FD-302 reports. According to his lawyer, Rovito feared a “perjury trap.” Davis argues that the prosecution acted in bad faith in questioning Rovito on matters he discussed with the FBI despite knowing he would dispute the contents of the FD-302 reports. After Rovito’s first day of testimony, however, the government told the district court that Rovito’s lawyer had provided just one example of a statement with which Rovito disagreed. That statement concerned Paul Carparelli’s alleged drug dealing, a topic that was never broached at trial and that had nothing to do with Davis’s case. The defense conceded that Carparelli’s drug dealing was the only example the lawyer had provided, and the district judge rightly concluded that there was “no issue there.” Moreover, Rovito had refused to meet with government counsel during the weeks leading up to trial. Although the prosecutors might have hoped and expected that he would testify consistently with his prior statements, they had no opportunity to review the proposed line of questioning with him or to address any concerns he might have raised.

Since the government did not know in advance the particular aspects of the FD-302s that John Rovito would disclaim, we find no evidence that the government acted in bad faith by calling him as a witness. Despite Rovito’s evasiveness, he provided helpful testimony on several critical aspects of the government’s case. For instance, he described retrieving an envelope from Gigi Rovito at the restaurant and then forwarding the envelope to Paul Car-parelli, and he acknowledged that the envelope contained the $5000 down-payment for the beating. He described how the $10,000 total fee was to be allocated— $2000 each to himself, to George Brown, to Carparelli, and to any others involved in the conspiracy. He also corroborated Brown’s testimony that the client was a man named “Mickey,” an especially salient detail since so much of the evidence against Davis was circumstantial or indirect.

John Rovito was much less cooperative on other points. Perhaps most problematic for the government’s case, Rovito insisted — even when confronted with his out-of-court statements to the contrary— that he was not aware that the beating conspiracy had anything to do with a car dealership. But even if the prosecution had been on notice that Rovito might vacillate, it “cannot be that any time the government suspects that a witness will lie on some aspect of his testimony that it is barred from using the witness.” Burt, 495 F.3d at 737. Rather, the government may elicit testimony from its witnesses in good faith and may use the impeachment tools that are available to any litigant if a witness becomes uncooperative. See Kane, 944 F.2d at 1412 (“When a government witness provides evidence both helpful and harmful to the prosecution, the government should not be forced to choose between the Scylla of [forgoing] impeachment and the Charybdis of not calling the witness at all.”).

As a fallback, Davis argues that if the judge did not err by allowing the government to question John Rovito about his out-of-court statements, then at the very least the judge should have given a contemporaneous limiting instruction telling the jury that it could not consider those statements as substantive evidence. If we had been presiding over the trial, we might well have agreed that á contemporaneous instruction would have been preferable, though the judge did properly advise the jury on the use of impeachment evidence during final instructions the next day. Our precedents make clear, however, that whether to give a contemporaneous limiting instruction is “committed to the discretion of the district court ... and our review is deferential.” United States v. Van Waeyenberghe, 481 F.3d 951, 956 (7th Cir. 2007) (citations and internal quotation marks omitted); see also United States v. Oxford, 735 F.2d 276, 280 (7th Cir. 1984) (“[T]he trial judge must determine on the facts of each case whether interim instructions are necessary..,, Once the judge makes a determination regarding instructions, we will reverse that decision only on a showing of an abuse of discretion”).

In this case, in denying Davis’s request for a contemporaneous limiting instruction, the judge explained that he preferred not to “bring- to. the attention of jurors as the fact finders” that he thought somebody was “lying or is inconsistent.” While a contemporaneous instruction might have been helpful, we cannot say that the judge abused his discretion in declining to give one. He was, after all, in a “better position than we to determine whether a contemporaneous instruction would unduly emphasize the evidence in the minds of the jury,” United States v. Dabish, 708 F.2d 240, 243 (6th Cir. 1983). The district court did not commit a reversible error by allowing the government to impeach John Rovito with his prior statements to the FBI and by deferring its limiting instruction until the close of trial.

III. Additional Issues

A. Use Immunity

Davis makes three additional arguments on appeal. None has merit. Davis first contends that his due process rights were violated when the government granted immunity to John Rovito but not to John’s brother Gigi. After learning that Gigi Rovi-to had invoked his Fifth Amendment privilege, Davis filed a “Motion for Defense Immunity” asking the district court to grant use immunity to Gigi. In denying that motion, the district judge explained that the decision whether to grant immunity is one for the government, not the court.

The judge was right. Prosecutors have “significant discretion to decline immunity to a witness, especially when it is likely that the witness will perjure himself.” United States v. Lake, 500 F.3d 629, 633 (7th Cir. 2007). That prosecutorial discretion is cabined only by the requirement that a prosecutor may not “immunize witnesses with the intention of distorting the fact-finding process.” United States v. Burke, 425 F.3d 400, 411 (7th Cir. 2005). Even in a case involving such distortion, a district court cannot simply order the government to immunize a defense witness. While the court could theoretically dismiss the indictment as a sanction, id., Davis cites no case in which any court in this circuit has taken that drastic step. Cf. United States v. Chapman, 765 F.3d 720, 732 (7th Cir. 2014) (“As far as we can tell, this court has never found that the failure to grant immunity to a defense witness deprived the defendant of due process.”).

We see no evidence that the government acted improperly here. During his FBI interviews on March 26 and May 6, 2014, Gigi Rovito denied any knowledge of the beating conspiracy, and he specifically denied forwarding the down-payment from Davis to his brother John. Those denials are inconsistent with other evidence that the government acquired, including the extensive testimony by George Brown and John Rovito and the inculpatory cell phone records. The government reasonably presumed that if Gigi took the stand, he would likely perjure himself. The government acted well within its discretion in declining an immunity deal that would have only facilitated such perjury. See United States v. Wright, 634 F.3d 917, 921 (7th Cir. 2011) (“[Avoiding future violations of the law, such as potential perjury, is hardly an unjustifiable and illegitimate government objective.”).

B. Scope of Cross-Examination

Davis next argues that the district court erred when it precluded him from cross-examining George Brown about his past extortion tactics. As with the other evidentiary issues in this appeal, we review the district court’s ruling for abuse of discretion. United States v. Williamson, 202 F.3d 974, 977 (7th Cir. 2000).

The defense theory was that the planned beating of R.J. Serpico, discussed in such detail in the recorded phone calls, had nothing to do with debt collection. That theory would not only tend to refute elements of both counts of the superseding indictment but also remove Davis’s apparent motive for participating in the conspiracy: anger about the money lost on the Ideal Motors loan. The defense wanted to question Brown about his past practices because, the defense said, Brown would testify that he typically “sent very specific messages to the victims to pay back the debt they owed,” and that in several cases he had performed these extortions on commission. In this case, by contrast, the job paid a flat $10,000, and the only message the conspirators were asked to deliver was a puzzling invective: “This is what you get for f* * *in’ my sister.”

The district court disallowed the proposed line of inquiry, noting that the details of Brown’s prior extortions were collateral matters and that the defense theory was merely speculative. On appeal, Davis argues that the excluded evidence was “vital to the defense theory of its case.” We disagree. While the excluded evidence might have bolstered Davis’s position, the evidence was not so critical that it was an abuse of discretion to exclude it. The defense asked Brown whether he knew the purpose behind the planned beating of R.J. Serpico:

DEFENSE COUNSEL: [Y]ou certainly weren’t going to collect money from this man, correct?
BROWN: As per my instruction from Paul [Carparelli], no, sir.
DEFENSE COUNSEL: Right. You were just — this was just going to be a beating, correct?
BROWN: That’s correct, sir.

Brown’s admission that the conspiracy, as he understood it, had nothing to do with debt collection provided direct support for the defense theory that the excluded evidence might have supported at best indirectly. Under these circumstances, the district judge did not abuse his discretion by limiting the scope of cross-examination.

C. Government’s Rebuttal Argument

Finally, Davis contends that the government constructively amended the superseding indictment during its rebuttal argument by implying that the loan from Davis to Ideal Motors was an extortionate extension of credit in violation of 18 U.S.C. § 892. We review this question de novo. See United States v. Pigee, 197 F.3d 879, 885 (7th Cir. 1999).

Davis points to several statements by the government that he interprets as an attack on the loan agreement itself. Early in his rebuttal argument, the prosecutor commented on the “math” associated with the loan deal, observing that Davis anticipated over $480,000 in profit during the three-year loan period. Several minutes later, the prosecutor said, “Who loans a known gambler $300,000 and just steps away? Of course not. He was in this all the way.” The prosecutor later said that the “man named Mickey loaned $300,000 to a known gambler” and “expected to ... doublet] his money in three years.” Davis contends that these statements amounted to an argument that the “loan agreement was, for all intents and purposes, a, ‘juice loan.’ ”

While it is possible for the government to broaden the bases for conviction impermissibly through its closing argument, see United States v. Cusimano, 148 F.3d 824, 829, 830 (7th Cir. 1998) (finding no constructive amendment of indictment), that did not happen here. The prosecutor’s reference to the lucrative loan terms helped him illustrate why Davis was so angry with R.J. Serpico and why Davis might have resorted to such extraordinary and extortionate tactics as the planned attack to break Serpico’s legs. Context makes this clear. During the initial portion of the closing argument, the government argued that the “evidence establishes beyond a reasonable doubt that the defendant Mickey Davis attempted to extort R.J. Serpico and Ideal Motors” and that Davis “used extortionate means to collect an extension of credit.” Later, the government characterized the beating conspiracy as the last in a series of steps by Davis to collect from Serpico:

In January, he’s playing off ... the fear of future violence. He threatened R.J. Serpico in that conversation. He played off that fear for months. And then when that stopped being productive ... he decided to follow up on that threat. He decided to escalate it, he decided to get violent but it’s just more of the same. It’s more about collecting what he’s owed.

The prosecutor echoed those remarks at the close of his rebuttal, saying: “We are a country of laws. We are not a country of men who get to choose how they will collect their debts, what means they will use to intimidate, to threaten violence.”

Even assuming for the sake of discussion that the prosecutor’s rebuttal language could have created some ambiguity, the judge corrected matters at the time. Defense counsel objected to each of the statements Davis now complains about. In response, the judge reminded the jury that attorneys’ statements are “not evidence” and that the jury would be “given a copy of the indictment and a copy of the Court’s instructions as to the law.” Then, during his final instructions to the jury, the district judge explained that Davis was charged in two counts, and he described the elements of each count. At no point did the judge suggest that the Ideal Motors loan was extortionate from the outset or, as Davis puts it now, a “juice loan.” Viewing the government’s closing arguments in their totality and in context, we find no indication of a constructive amendment to the indictment.

The judgment of the district court is

AFFIRMED.

      . John Rovito’s testimony on this point, like much of his testimony, was equivocal. At first, he implausibly testified that the "friend” was Gigi Rovito; he then said that he had been referring to "Gigi's friend ... Mickey.” When the prosecutor pressed him to clarify whether the "friend” he expected to see was in fact “Mickey,” Rovito said; "It is possible, yes. I’m not 100 percent sure.”

      . The government highlights a series of actions Davis took after the Serpicos fell behind on their payments. For example, Davis directed R J. Serpico to fire his father Joseph; Davis had his assistant monitor the Ideal Motors bank statements and inventory; he required Ideal Motors to conduct business using a bank account that he jointly owned; and he seized a 1971 Chevrolet that RJ. Serpico had purchased and restored. The government characterizes these measures as escalating steps culminating in the extortion conspiracy. We express no specific view on the legality or contractual propriety of these actions, but we do not believe that Davis's exercise of rights as a secured creditor adds any weight to the government’s case that he later engaged in the criminal conspiracy to beat R J. Serpico.

      . Davis identifies one instance where the government's impeachment effort plainly was improper. In what the district judge treated as an unfortunate slip of the tongue, the prosecutor asked John Rovito whether he recalled telling the FBI about a conversation between "Davis” and Gigi Rovito. John Rovito never mentioned Davis's surname to the FBI. He testified that he learned the surname only when he was subpoenaed to appear in court. If the district judge had ignored this error, Davis's argument on appeal would have greater force. But the judge handled the mistake appropriately, instructing the jury to disregard both-the question and any reference by the prosecutor to Davis’s surname. The judge also reminded the jury that "lawyers' statements are not evidence.” Given the judge’s prompt response to the government’s error, we do not think Davis was unduly prejudiced by the error.

      . Davis argues in the alternative that the district court should have either admitted Gigi Rovito's FD-302 reports or given a missing witness instruction. But as substantive evidence, the FD-302s were plainly inadmissible hearsay. Whether to give a missing witness instruction rests within the sound discretion of the district court. "To 'establish entitlement to a missing witness instruction, a defendant must prove two things: first, that the absent witness was peculiarly within the government's power to produce; and second, that the testimony would have elucidated issues in the case and would not merely have been cumulative.’ ” United States v. Foster, 701 F.3d 1142, 1154 (7th Cir. 2012), quoting United States v. Gant, 396 F.3d 906, 910 (7th Cir. 2005). We do not see how Gigi Rovito was "peculiarly within the government’s power to produce” any more than any other witness who is closely connected to criminal activity and is therefore reluctant to testify. See id. at 1155 ("[T]he government’s ability to grant immunity does not make a witness who invokes the Fifth Amendment privilege peculiarly available to the govemment[.]”). Given the strong likelihood that Gigi (if he had testified consistently with his statements to the FBI) would have perjured himself, we do not see how his presence would have "elucidated issues in the case.”


source: Caselaw Access Project

author: FLAUM, Circuit Judge.

license: Public Domain

text:
    Duane E. TURNER, Petitioner-Appellant, v. Richard BROWN, Respondent-Appellee.
    No. 15-1592
    United States Court of Appeals, Seventh Circuit.
    Argued October 26, 2016
    Decided January 3, 2017

      Brian James Paul, Attorney, Faegre Baker Daniels LLP, Indianapolis, IN, El-din Hasic, Attorney, Faegre Baker Daniels LLP, Fort Wayne, IN, for Petitioner-Appellant.
    Kelly A. Loy, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.
    Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges.
   FLAUM, Circuit Judge.

Duane E. Turner has filed a petition for a writ of habeas corpus in federal court raising claims of ineffective assistance of counsel in challenging his sentence for murder. The district court denied his petition as untimely, concluding that the last day on which Turner could have filed his federal habeas petition was September 23, 1998, one year after his murder conviction and sentence became final. We granted a certificate of appealability, asking the parties to address whether Turner’s petition was timely filed under Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009). For the reasons that follow, we affirm the district court’s denial of the petition as untimely.

I. Background

In 1995, a jury found Turner guilty of murder, criminal confinement, and class A felony attempted robbery resulting in serious bodily injury. Turner was sentenced on those counts to life imprisonment without parole, twenty years’ imprisonment, and forty-five years’ imprisonment, respectively. Turner appealed to the Indiana Supreme Court, which affirmed his convictions. He did not seek a writ of certiorari to the United States Supreme Court, and his opportunity to do so expired ninety days later, on September 22,1997.

In 2000, Turner filed a pro se petition for post-conviction relief in state trial court. In 2011, the trial court dismissed all of Turner’s claims for relief, and Turner appealed. The Indiana Court of Appeals affirmed in part and reversed in part, finding that Turner’s counsel had been ineffective in failing to raise on appeal the double jeopardy issue of a single victim’s death forming the basis of both the murder and attempted robbery with serious bodily injury convictions. The Court of Appeals remanded the case with instructions to reduce Turner’s Class A felony robbery conviction to a Class B felony robbery conviction. On July 1, 2013, the trial court did so, and resentenced Turner on this count from forty-five years’ to ten years’ imprisonment. The 2013 order did. not reference or alter Turner’s other convictions or sentences for murder and criminal confinement.

On January 31, 2014, Turner filed a pro se petition for habeas relief in’ the Southern District of Indiana seeking resentenc-ing on his murder conviction. Turner asserted two separate grounds for relief: (1) that his life sentence for murder was unconstitutional under Apprendi; and (2) that Turner had been denied effective assistance of counsel because his counsel during trial and appeal had made multiple errors that had prejudiced Turner’s case. On February 4, 2014, the district court issued a sua sponte order requiring Turner to show that his petition for writ of habeas corpus was timely under 28 U.S.C. § 2244(d)(1)(A). In response, Turner argued, among other things, that he had not had access to a law library from 1997 to 2000, and that his case had been pending in state collateral review from 2000 to 2013. Respondent argued that the petition was untimely and lacked merit, and submitted an affidavit from a prison official challenging Turner’s claim that he had lacked library access.

On February 18, 2014, the district court ruled that the deadline for Turner to file his habeas petition had expired on September 23,1998, one year after the last day on which he could have filed a petition for writ of certiorari. The district court held that the state post-conviction relief process could not toll the federal deadline because Turner’s time under The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) had expired before he had filed for post-conviction relief. As a result, the court denied the petition and dismissed it with prejudice as untimely, and without considering the merit of Turner’s claims.

In March 2015, Turner filed a notice of appeal, and the district court denied Turner’s request for a certificate of appealability on the ground that the appeal was not taken in good faith. In April 2015, Turner attempted to appeal that decision but incorrectly filed his motion in the district court, which denied the motion and instructed him to re-file it in this Court if that was his intent. In May 2015, we issued a final order dismissing the appeal. In July 2015, Turner filed a pro se motion to recall the mandate, which we granted, vacating our earlier final order, and reinstating Turner’s appeal. On December 3, 2015, we entered an order finding that Turner “has made a substantial showing of the denial of his right to effective assistance of counsel” pursuant to 28 U.S.C. § 2253(c), and instructing the parties to also address whether Turner’s petition was timely filed under Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009). We granted Turner a certificate of appeal-ability and the right to proceed in forma pauperis, and appointed counsel to assist with the appeal.

II. Discussion

AEDPA establishes a one-year time limitation for a state prisoner to file an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). That year runs from the latest of four specified dates, only one of which is relevant to this case: “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A).

Turner contends that in his case, “the date on which the judgment became final” was altered by the state court’s grant of relief and resentencing on the robbery count during collateral review. He argues that because the judgment that “became final in 1997 was ... changed in 2013, ... the date for calculating the timeliness of Turner’s habeas petition changed with it.” He relies on Burton v. Stewart, 549 U.S. 147, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007), as confirming that the new judgment renders his petition timely. There, the Supreme Court explained that AEDPA’s one-year statute of limitations period does not begin until a petitioner’s conviction and sentence become final “by the conclusion of direct review or the expiration of the time for seeking such review.” Id. at 156-57,127 S.Ct. 793.

At oral argument, Turner also relied on the Supreme Court’s decision in Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). The petitioner in Magwood was sentenced to death for murder; and after the Alabama courts denied relief on direct appeal and in post-conviction proceedings, he filed a federal habeas petition challenging his conviction and death sentence. Id. at 323-26, 130 S.Ct. 2788. The district court conditionally granted the writ as to the sentence, mandating that the petitioner either be released or resentenced. Id. at 326, 130 S.Ct. 2788. The state trial court then conducted a resentencing hearing and again imposed a death sentence. Id. The petitioner filed another habeas petition challenging the new death sentence, and the district court again conditionally granted the writ, finding the new sentence constitutionally defective. Id. at 327-29, 130 S.Ct. 2788. The Eleventh Circuit reversed, holding in relevant part that the second-in-time habeas petition was an unreviewable “second or successive” challenge to the death sentence under 28 U.S.C. § 2244(b), because the petitioner could have mounted the same challenge to his original death sentence. Id. at 329, 130 S.Ct. 2788. The Supreme Court reversed, holding that because the petitioner’s habeas application challenged his new death sentence — an intervening judgment — for the first time, it was not “second or successive.” Id. at 331, 342, 130 S.Ct. 2788. The Court declined to address whether a petitioner who obtained a conditional writ as to his sentence could then file a subsequent application challenging not only his new sentence but also his original, undisturbed conviction. Id. at 342, 130 S.Ct. 2788.

Just as the intervening sentence in Mag-wood reset the habeas counter for purposes of counting the number of petitions, Turner contends that his 2013 resentenc-ing reset the clock for calculating AED-PA’s statute of limitations. The problem with Turner’s position, however, is that the relief he was granted in 2013 was limited to his robbery conviction, whereas his ha-beas petition challenges his conviction and life sentence for murder. Thus, the judgment that is relevant for purposes of his present petition is the one from 1995, and the clock has long since run out on this habeas petition.

When confronted with this issue at oral argument, Turner pointed to Pace v. Di-Guglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), and claimed that because AEDPA speaks of only one judgment, his resentencing on his robbery conviction ought to have restarted the clock on his judgment as a whole. In Pace, the Supreme Court observed in a footnote that § 2244(d)(1) “provides one means of calculating the limitation with regard to the application as a whole, § 2244(d)(1)(A) (date of final judgment); but three others that require claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate).” 544 U.S. at 416 n.6, 125 S.Ct. 1807 (internal quotation marks omitted). Turner presumably interpreted the Court’s explanation of § 2244(d)(1)(A) to mean that there could only be one judgment from which AEDPA’s statute of limitations could be calculated. Pace, however, referred only to one whole “application,” not to one whole judgment. See id. As Turner’s case evidences, the state may pursue convictions on as many crimes as it likes, and it may then seek as many judgments as it likes. AEDPA’s one-year time limit will then run from each judgment. Turner’s 2013 resentencing led the state to enter another judgment, .but the timeliness of his habeas petition is calculated based on the date of the final judgment that his petition challenges — that is, his 1995 judgment for murder. To hold otherwise would allow appellate review of each and every one of Turner’s convictions and sentences when the state only resentenced him on robbery, and would clearly undermine the finality of the state court’s 1995 decision. Cf. Fielder v. Varner, 379 F.3d 113, 119-20 (3d Cir. 2004) (Alito, J.) (concluding that Congress could not have wanted to “permit[ ] a late-accruing federal habeas claim [e.g., under subsections (C) or (D) of § 2244(d)(1)] to open the door for the assertion of other claims that had become time-barred years earlier”); Davis v. United States, 817 F.3d 319, 328 (7th Cir. 2016) (“The simple fact that Davis might have one timely claim to make ... based on a Supreme Court precedent issued years after his conviction otherwise became final does not allow him to tack on additional, otherwise untimely claims to that one timely claim.”)- While Turner is correct that the state court disturbed the finality of its own judgment through resentencing, it only did so with respect to his robbery conviction. Turner’s murder conviction and sentence were entered two decades ago and were never altered or amended.

Indeed, the Magwood Court noted that several federal appellate courts, ours included, have held that “ ‘a petitioner who succeeds on a first habeas application and is resentenced may challenge only the portion of a judgment that arose as a result of a previous successful action.’ ” 561 U.S. at 342 n.16,130 S.Ct. 2788 (citations omitted). For example, in Walker v. Roth, 133 F.3d 454 (7th Cir. 1997), we held that a habeas petition attacking for the first time the constitutionality of a newly imposed sentence was not “second or successive,” id. at 455, but also noted that “had Walker sought to challenge aspects of his conviction [as opposed to his new sentence,] the district court would have been correct in dismissing his petition as successive.” Id. at 455 n.l (citation omitted); see also Esposito v. United States, 135 F.3d 111, 113 (2d Cir. 1997) (holding that petitioner’s § 2255 petition was a “second” petition even though his first petition successfully amended his terms of supervised release, “because the later petition raised no challenge to the new supervised release term and concerned instead the conviction and the components of his sentence that were not amended”); Lang v. United States, 474 F.3d 348, 351-52 (6th Cir. 2007) (holding that later petition challenging “a judgment or portion of a judgment that arose as a result of a previous successful action” was not second or successive) (emphasis added). Further, in Dahler v. United States, 259 F.3d 763 (7th Cir. 2001), we adopted our dicta from Walker in holding that the petitioner was barred from challenging in a second habeas petition an alleged constitutional error that had not been introduced by his resentencing and could have been raised before resentencing. Id. at 764-65. This remains the law of the Circuit post-Magwood. In Suggs v. United States, 705 F.3d 279 (7th Cir. 2013), we again confronted the issue of whether a second-in-time habeas petition is barred as “second or successive” when the petitioner has been resentenced pursuant to a successful first motion, and the new motion challenges only the underlying conviction and not the resentencing. We acknowledged that the Magwood Court had left this question open, and then concluded that under our Circuit’s precedent, see, e.g., Dahler, 259 F.3d at 765, such a second motion was barred as “second or successive.” Id. at 284.

Under the same reasoning, although a challenge to Turner’s robbery conviction may be timely, the challenge to his sentence for murder is not. His murder conviction and life sentence were unaffected by the 2013 resentencing and thus remained final. Turner’s argument under Jimenez is of no avail, as the Supreme Court explicitly limited its decision in that case to situations where state courts grant a defendant the right to file an out-of-time direct appeal, which is not the case for Turner. See Jimenez, 555 U.S. at 121, 129 S.Ct. 681 (“Our decision today is a narrow one. We hold that, where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A).”). Moreover, the petitioner in Jimenez had been convicted and sentenced only for burglary; thus, the out-of-time direct appeal was not limited to a certain count or conviction. See id. at 115, 129 S.Ct. 681. Turner’s reliance on Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286 (11th Cir. 2007), a pre-Magwood case, and the dissent from our decision to deny rehearing en banc in Griffith v. Rednour, 623 F.3d 1166 (7th Cir. 2010) (Hamilton, J., dissenting), is misplaced for the same reason.

As the petition is time-barred, we need not address the merits of Turner’s ineffective-assistance claims.

III. Conclusion

For the foregoing reasons, we Affirm the district court’s denial of the petition for a writ of habeas corpus.

       This concern is especially apt in the case at hand, because Indiana does not set a time limit for filing a petition for post-conviction relief after direct appeal is concluded. See Ind. R. P.C. Rem. § 1(b). Under Turner’s proposed outcome, petitioners in Indiana- — or other states without time limits for post-conviction petitions — could challenge one of their sentences or convictions decades after the fact, and if they obtained any relief or resen-tencing, they would be able to retroactively revive previously time-barred federal habeas claims.


author: PER CURIAM.

text:
    Ning WANG, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 16-1526
    United States Court of Appeals, Seventh Circuit.
    Argued November 15, 2016
    Decided January 3, 2017

      Pengtian Ma, Attorney, Chicago, IL, for Petitioner.
    Aaron D. Nelson, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.
   PER CURIAM.

Ning Wang, a 25-year-old Chinese citizen (from Shenyang, the capital of the northeastern province of Liaoning), petitions for review of the denial of his applications for asylum and withholding of removal based on his fear of religious persecution for attending unsanctioned Christian gatherings. Wang also challenges the Immigration Judge’s finding that his application was frivolous — a consequential finding that bars him from obtaining any future immigration benefits. We deny the petition with regard to the denial of his applications for immigration relief, but grant the petition with regard to the finding of frivolousness.

Wang came to the United States in December 2010 on a student visa he obtained to attend Benedictine University at Springfield College in Springfield, Illinois. Wang never attended the school, however, and instead worked part-time at various restaurants in Chicago.

In October 2011, Wang applied for asylum with the Department of Homeland Security, but the asylum officer denied his application, and DHS initiated removal proceedings against him. Wang was charged with removability based on his failure to comply with the conditions of the nonimmigrant status under which he was admitted. At a hearing before the IJ, Wang conceded his removability and renewed his application for asylum.

At a later hearing, Wang testified that he sought asylum based on his fear of persecution for being a practicing Christian. Wang said that he started practicing Christianity after recovering from a month-long illness at age 17 thanks, in his eyes, to the daily prayers of his Christian grandmother. He then began accompanying his grandmother to Christian gatherings at a local pastor’s home. He preferred attending these gatherings to those at the government-sanctioned church, which he said was “controlled by the Communists.”

Wang testified that he was injured in late 2009 during a police raid on one of the pastor’s gatherings. He said that he was hit three times with a police baton, necessitating medical treatment — first at the small clinic near his home, and then a few days later at a larger hospital.

A couple months later, in March 2010, Wang again got caught up in a police raid during a Christian gathering, and this time he was arrested and detained for a week. During this detention, he said, he was interrogated, kicked, punched, struck with a “leather whip,” and beaten with a baton. His parents paid a fine to get him released, and he sought treatment at the hospital for “bruises” and a skin “rash.” Later, the police continued to “beat [him] up” every time they spotted him on the street.

The IJ wholly disbelieved Wang’s testimony, and denied his applications for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ found Wang’s testimony “riddled” with discrepancies, “extremely implausible, incredible, and inconsistent,” and the judge did not believe that Wang “even attended an underground gathering or was a practicing Christian in China.” The IJ went so far as to impose a frivolous filing bar against Wang, concluding that Wang’s documentation was “fabricated to support his already-filed request for asylum.” A frivolous finding bar has the effect of permanently disqualifying an alien from any “benefits” under the immigration laws. See 8 U.S.C.A. § 1158(d)(6).

The IJ based his adverse credibility finding in large part on inconsistencies between Wang’s in-court testimony and his submitted documents. These inconsistencies included the following: (1) The medical record Wang submitted to the court was from the village health department and not from the hospital, as Wang testified; (2) Wang’s application for asylum stated that 10 police officers showed up at the 2009 raid, but he testified at his hearing that there were 17; (3) Wang stated in his asylum application that he suffered a concussion as a result of the 2010 beatings, but at his hearing he testified that the concussion occurred during the 2009 incident; (4) A letter Wang submitted from his father stated that Wang suffered a bone fracture as a result of the police beatings, but Wang testified at the hearing that his father’s reference to the bone fracture may have been “exaggerate^] a little bit”; and (5) Wang’s father wrote in his letter that he, too, was a pious Christian, but Wang denied at the hearing that his father attended services with him.

The IJ also partially based his adverse credibility finding on Wang’s lack of evidence that he was a practicing Christian. The IJ acknowledged a letter from one of Wang’s friends recounting their meeting at a Chicago church, but the IJ noted that Wang did not claim that he had been baptized or otherwise confirm that he was a practicing Christian.

The IJ also took a step further and ruled that Wang had filed a frivolous asylum application. The IJ based this finding on the same inconsistencies upon which he found Wang not credible, as well as Wang’s failure to supplement his initial asylum application in 2011 with medical evidence, a detention warrant, or other documents to corroborate his mistreatment in 2009 and 2010. The IJ concluded that Wang’s documentation “was fabricated to support his already-filed request for asylum.”

The Board of Immigration Appeals upheld both the IJ’s adverse credibility finding as well as his conclusion that Wang’s asylum application was frivolous. According to the Board, the IJ had identified significant inconsistencies in his testimony, and Wang did not provide “persuasive, reliable corroborating evidence” that could have “rehabilitate^] his incredible testimony.” Regarding the IJ’s decision to impose a frivolous filing bar, the Board accepted the IJ’s finding that Wang “knowingly misrepresented that he was a practicing Christian in China, that he attended an underground religious gather-mg, and that he was detained and mistreated by authorities in China.”

In his petition for review, Wang argues that the IJ erred in his adverse credibility finding because all of the identified inconsistencies were either minor or sufficiently explained. For example, to the extent there were minor discrepancies between his testimony and his written statement over the harm he suffered while in detention, Wang asserts that his testimony “did not simply parrot” his written statement and instead provided “a more detailed description of his abuse.” Wang also discounts the “mistake” in his father’s letter about his injuries as “minor,” and points out that the IJ failed to acknowledge that Wang corroborated his testimony by submitting a Warrant of Detention.

But the Board’s reasons for upholding the IJ’s adverse credibility finding are sufficient to support its conclusion that Wang’s application for relief should be denied. An adverse credibility finding can be supported by any non-trivial inconsistencies in the applicant’s story. See Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). Wang’s testimony regarding his injuries, medical records, and police encounters was inconsistent. While too much should not be made of either minor memory lapses, see Kadia v. Gonzales, 501 F.3d 817, 822 (7th Cir. 2007), or trivial discrepancies (such as whether the home of Wang’s pastor was raided by 10 or by 17 police officers, or whether he suffered his concussion in 2009 or 2010), Wang’s inconsistent testimony about the source of his medical records and the information in his father’s letters supports the IJ’s conclusion that he was not credible.

Wang also challenges the determination that the frivolous-application bar applied. See 8 U.S.C. § 1158(d)(6). According to Department of Justice regulations, an application is frivolous if “any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20; Albu v. Holder, 761 F.3d 817, 821 (7th Cir. 2014). Wang argues that the IJ made the “astounding” logical leap that his submission of additional supporting documents after applying for asylum meant that his submitted documentation was deliberately fabricated.

The IJ’s frivolous-application finding is unsupported by the record. The IJ addressed his finding in only conclusory terms and nowhere explained how he determined that Wang had deliberately fabricated material elements of his claim:

This Court believes that the respondent’s alleged torture and mistreatment was deliberately fabricated to enhance his asylum filing. When respondent was given opportunity to explain this, he simply could not change his story and suggested more harm in 2009. When asked about the discrepancies in the medical evidence that he allegedly had at the time he was treated in China, he could not even answer the questions concerning where the medical evidence came from and the nature of his treatment. In short, I find the respondent’s request for asylum is frivolous. This Court does not believe that he was mistreated by the authorities in China because of attending an underground gathering.

We, as well as our sister circuits, generally have required much more indisputable evidence of deliberate fabrication to uphold findings of frivolousness. See, e.g., Siddique v. Mukasey, 547 F.3d 814, 815 (7th Cir. 2008) (petitioner confessed that he had lied about police murdering his family by forging police and autopsy reports); Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (medical records submitted by the alien were identified by the hospital as fraudulent); Selami v. Gonzales, 423 F.3d 621, 626-27 (6th Cir. 2005) (documents provided by the alien were clear forgeries when compared to true copies of the originals); Barreto-Claro v. U.S. Atty. Gen., 275 F.3d 1334, 1339 (11th Cir. 2001) (alien admittedly lied in his prior asylum application). In contrast, the IJ here seemed to base his frivolousness finding on a lack of credible evidence rather than any evidence that Wang had made deliberate falsehoods. To the extent the IJ based his finding on discrepancies between Wang’s account and documentary evidence, an adverse credibility determination alone is insufficient to support a frivolousness finding. See Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 115 (2d Cir. 2006) (error for IJ to “parlay an ordinary adverse credibility decision into a finding of frivolousness”); Scheerer v. U.S. Atty. Gen., 445 F.3d 1311, 1318 (11th Cir. 2006). Given “the severity of the consequences” that result from a frivolousness finding, an IJ must provide “cogent and convincing reasons” for finding that an asylum applicant knowingly and deliberately fabricated material elements of the claim. Matter of Y-L-, 24 I. & N. Dec. 151, 158 (BIA 2007). The IJ’s reasons here do not satisfy that standard.

Because substantial evidence supports the IJ’s conclusions that Wang was not credible and did not adequately corroborate his account, we deny the petition with respect to the denial of his applications for immigration relief. Substantial evidence, however, does not support the IJ’s finding that Wang deliberately fabricated material elements of his application, so we grant Wang’s petition with regard to the finding of frivolousness.


author: EASTERBROOK, Circuit Judge.

text:
    PATRIOTIC VETERANS, INC., Plaintiff-Appellant, v. Greg ZOELLER, Attorney General of Indiana, Defendant-Appellee.
    No. 16-2059
    United States Court of Appeals, Seventh Circuit.
    Argued November 1, 2016
    Decided January 3, 2017

      Mark J. Crandley, Christopher Bayh, Attorneys, Barnes & Thornburg LLP, Indianapolis, IN, for Plaintiff-Appellant.
    Thomas M. Fisher, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.
    Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Plaintiff, a veterans’ group, contends that an anti-robocall statute, Ind. Code § 24-5-14-5, violates the First Amendment to the Constitution, applied to the states by the Fourteenth Amendment. The Telephone Consumer Protection Act, 47 U.S.C. § 227, which contains a similar limit, has been sustained by two circuits. See Gomez v. Campbell-Ewald, Co., 768 F.3d 871 (9th Cir. 2014), affirmed on other grounds, — U.S. —, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016); Van Bergen v. Minnesota, 59 F.3d 1541, 1549-56 (8th Cir. 1995); Moser v. FCC, 46 F.3d 970 (9th Cir. 1995). The same circuits have approved state laws as well. See Van Bergen (sustaining a Minnesota law in addition to § 227); Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) (California law). But relying on Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015), which found South Carolina’s anti-robocall law to be unconstitutional, plaintiff maintains that Reed v. Gilbert, — U.S.—, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), made these decisions obsolete and dooms both state and federal anti-robocall statutes as instances of content discrimination. We disagree with that contention and conclude that Indiana’s law is valid.

Indiana forbids recorded phone messages placed by automated dialing machines unless “(1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or (2) the message is immediately preceded by a live operator who obtains the subscriber’s consent before the message is delivered.” Ind. Code § 24-5-14-5(b). Plaintiff maintains that the option given by subsection (b)(2) is prohibitively expensive, so that as a practical matter the statute forbids robocalls in the absence of advance consent by the recipient. We shall assume that this is so. Yet the requirement of consent is not content discrimination, so plaintiff focuses attention on three statutory exceptions:

This section does not apply to any of the following messages:
(1) Messages from school districts to students, parents, or employees.
(2) Messages to subscribers with whom the caller has a current business or personal relationship.
(3) Messages advising employees of work schedules.

Ind. Code § 24-5-14-5(a). The district court concluded that these exceptions do not constitute content discrimination and held that the law is constitutional. 177 F.Supp.3d 1120 (S.D. Ind. 2016). The district court had earlier deemed the Indiana statute preempted, but we reversed, 736 F.3d 1041 (7th Cir. 2013), leaving only the constitutional challenge.

Plaintiff tells us that the statute as a whole disfavors political speech and therefore entails content discrimination, as Reed understood that phrase. We don’t get it. Nothing in the statute, including the three exceptions, disfavors political speech. The statute as a whole disfavors cold calls (that is, calls to strangers), but if a recipient has authorized robocalls then the nature of the message is irrelevant. The three exceptions in § 24-5-14-5(a) likewise depend on the relation between the caller and the recipient, not on what the caller proposes to say. Our first opinion described these exceptions as a form of implied consent, 736 F.3d at 1047, adding to the express consent exception in § 24-5-14-5(b)(1). The exceptions collectively concern who may be called, not what may be said, and therefore do not establish content discrimination.

That’s not quite true of § 24-5-14-5(a)(3), which deals with messages “advising employees of work schedules.” If plaintiff proposed to make automated calls to its own employees, it could contend that the restriction — the calls must concern work schedules — blocked it from including political speech. But, when asked at argument, counsel for plaintiff stated that the organization does not feel inhibited in communicating with its own employees — who, after all, may have given express consent under § 24-5-14-5(b)(1). So if we were to hold that employers may say anything they like in automated calls to employees, this would do plaintiff no good. Nor would an injunction striking subsection (a)(3) from the statute. Such an injunction would make plaintiff worse off by making it harder to get in touch with its staff, and plaintiff understandably has not asked for that relief. What it wants is an order preventing Indiana from enforcing § 24-5-14-5(b). Potential problems with how subsection (a)(3) affects other persons do not give plaintiff standing to complain about subsection (b), its target in this suit.

Plaintiffs other line of argument is that the statute is excessive in relation to its goal of protecting phone subscribers’ peace and quiet, and that the First Amendment thus requires Indiana to make an exception for political speech. That exception, if created, would be real content discrimination, and Reed then would prohibit the state from forbidding robocall advertising and other non-political speech. That’s the conclusion of Cahaly. South Carolina’s anti-robocall statute “applies to calls with a consumer or political message but does not reach calls made for any other purpose.” Cahaly, 796 F.3d at 405. The Fourth Circuit concluded that drawing lines on the basis of the message, presented, rather than (as Indiana’s law does) consent by the person to be called, is content discrimination prohibited by the First Amendment. Plaintiff wants us to take a content-neutral law and make it invalid by creating message-based distinctions. That’s out of the question. Indiana’s law must stand or fall as written. Thus the remaining question is not whether Indiana must allow automated politicking by phone, but whether it is entitled to make advance consent (express or implied) a condition of any automated phone call, regardless of subject.

No one can deny the legitimacy of the state’s goal: Preventing the phone ■ (at home or in one’s pocket) from frequently ringing with unwanted calls; Every call uses some of the phone owner’s time and mental energy, both of which are precious. Most members of the public want to limit calls, especially cell-phone calls, to family and acquaintances, and to get their political information (not to mention their advertisements) in other ways. Federal law severely limits unsolicited calls to cell phones, 47 U.S.C. § 227(b)(1)(A)(iii), and the FTC maintains a do-not-call registry for landline phones, just as the Postal Service maintains a no-junk-mail list. These devices have been sustained against constitutional challenge. See, e.g., Rowan v. Post Office, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) (junk-mail list); Mainstream Marketing Services, Inc. v. FTC, 358 F.3d 1228 (10th Cir. 2004) (do-not-call registry). Limits on unsolicited faxes have been sustained on similar reasoning. See, e.g., Missouri ex rel. Nixon v. American Blast Fax, Inc., 323 F.3d 649 (8th Cir. 2003).

But number porting has made it increasingly hard to distinguish cell numbers from landline numbers, and many callers disregard (or are exempt from) the do-not-call registry because it is expensive to check the FTC’s list against lists of potential call recipients. That’s why the national government and states such as Indiana have adopted limits on a particular calling technology, the robocall, that many recipients find obnoxious because there’s no live person at the other end of the line. The lack of a live person makes the call frustrating for the recipient but cheap for the caller, which multiplies the number of these aggravating calls in the absence of legal controls. Anyone proposing to queue up a robocall knows its own technology, even if it does not know whether the potential recipient is a cell phone or landline phone, or is on or off the do-not-call list.

Everyone has plenty of ways to spread messages: TV, newspapers and magazines (including ads), websites, social media (Fa-cebook, Twitter, and the like), calls from live persons, and even recorded spiels if a live operator first secures consent. Plaintiff can ask its donors and potential donors to agree to receive robocalls. Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid time, place, and manner restriction. Other circuits’ decisions, which we have cited, spell out the reasoning; repetition would be otiose. Because Indiana does not discriminate by content — the statute determines who may be called, not what message may be conveyed — these decisions have not been called into question by Reed.

Affirmed


author: SHADID, Chief District Judge.

text:
    Yumin XIANG, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 16-2189
    United States Court of Appeals, Seventh Circuit.
    Argued December 7, 2016
    Decided January 3, 2017

      Pengtian Ma, Attorney, Chicago, IL, for Petitioner.
    Kimberly A. Burdge, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before BAUER and FLAUM, Circuit Judges, and SHADID, Chief District Judge.

       Of the Central District of Illinois, sitting by designation.

   SHADID, Chief District Judge.

Yumin Xiang is a 46-year-old female citizen of the People’s Republic of China petitioning for review of an order upholding the denial of her application for asylum and withholding of removal. Her request for asylum was denied both initially by the Immigration Judge (“IJ”) and on appeal to the Board of Immigration Appeals (“BIA”) based on the IJ’s finding that Xiang’s written request and oral testimony contained inconsistencies. Xiang now seeks review of the BIA’s decision.

Yumin Xiang came to the United States on a visa as a visitor for business on September 5, 2011, with authorization to remain for a temporary period not to exceed March 4, 2012. She submitted an application for asylum and withholding of removal with the United States Citizenship and Immigration Services (“USCIS”) on January 30, 2012. She alleged that prior to coming to' the United States, she and her husband' had a son in 1992. As a result, Xiang was given a single-son certification by the family planning office, and was told to follow birth control guidelines. Xiang stated that she suffered persecution under China’s strict family planning policies. She alleged that she had been forced to have an abortion when she became pregnant after her first son was born. Further, she had been forced to have intrauterine devices (“IUD”) involuntarily inserted on multiple occasions, which caused serious medical issues and loss of her fertility. USCIS denied her application and the Department of Homeland Security issued a Notice to Appear, charging Xiang with removal from the United States for overstaying her visa.

On April 12, 2012, Xiang appeared before the IJ, admitted the charges against her, conceded removability, and renewed her request for asylum and withholding of removal. On June 16, 2014, Xiang appeared with counsel and testified before the IJ.

Xiang testified that she suffered persecution for her opposition to China’s family planning policy and fears future persecution if she returns to China. According to her testimony, soon after the birth of her son, Xiang became pregnant again. Although she and her family wanted to take the pregnancy to term, the family planning office was informed of her illegal pregnancy through a neighbor. Three women came to her home and forced her to come with them to the hospital. She testified that her mother-in-law was pushed and fell to the ground. Xiang was then placed in a car with the words “District Family Planning Office” on the outside and driven to Sujia-tun District Hospital, where her pregnancy was confirmed. Although she resisted and told the officials and doctor that she did not want to have an abortion, the officials dragged her into the surgical room. Xiang stated that she asked the doctor not to perform the abortion. According to Xiang, he told her that she could not escape because the officials were outside the door. He also told her that if she did not have the abortion now, she would have to have the abortion the next day. She then testified that the doctor ordered her to sit on a surgical chair and he performed a painful abortion procedure. After the abortion, she was taken home and used over-the-counter pain medication because she was not given any medication.

Xiang testified that a month later, family planning officials visited her home and informed her she had to get an IUD inserted, or she would “suffer and have more trouble.” Xiang complied, but experienced side effects such as pain and longer menstrual periods. When she sought medical help at the hospital, a doctor confirmed that the IUD caused her symptoms, but that he was unable to remove the IUD without a certified letter from the family planning office. Xiang had the device removed at a private clinic.

Xiang testified that she became pregnant again in winter of 1995, and the family planning officials forced her to have a second abortion. Shortly thereafter she was forced to have another IUD inserted. She had it removed by a private clinic when it caused her adverse side effects. During a required annual check-up, required for women of child-bearing age, the doctor ordered another IUD inserted. Because of her complaints of the side effects from the M-ring IUDs, the doctor inserted a T-ring IUD. Xiang once more had this IUD removed at a private clinic.

Xiang then testified that she became pregnant again in the summer of 1998. Although she considered moving away, she was reluctant to do so because her son was still in school. Family planning officials discovered her third pregnancy, and she was forced to have a third abortion and subsequently forced to have another IUD inserted. She testified that she did not remove the IUD until 2003 because she was afraid of having any more procedures. Her last IUD was inserted in 2003, but in 2010 she wished to remove it due to a pelvic inflammatory disease and blocked fallopian tubes. Because she needed to obtain a certified letter from the family planning office to remove the IUD, Xiang again sought to have it removed at a private clinic.

Xiang testified that she did not have the records of her visits to the private clinic because those clinics do not issue documentation. She also stated that she mailed the original 2010 medical report but it never reached its destination, so she had to provide a copy. When asked why the 2010 medical report only mentions one abortion, Xiang answered: “I was so young. To me, the memory was so fresh, and the suffering was so high.” Xiang testified that she told the doctor that she had had three forced abortions, although he noted only one.

The IJ concluded that Xiang was not credible due to her vague and inconsistent testimony. An IJ may properly base credibility determinations on “the consistency between the applicant’s ... written and oral statements ... [and] the internal consistency of each such statement,” as well as any inconsistencies between the two. 8 U.S.C. § 1158(b)(1)(B)(ii); Long-Gang Lin v. Holder, 630 F.3d 536, 544 (7th Cir. 2010); Hassan v. Holder, 571 F.3d 631, 637 (7th Cir. 2009). The IJ asked why her husband stated that her abortion occurred in October and she testified that it occurred in summer. Xiang responded that her husband is old, although the IJ observed that her husband was around 50-years-old and found this explanation insufficient. Prior to Xiang’s testimony, she did not mention the three family planning officials who came to her home, or the presence of her mother-in-law when they arrived at her home. When asked about the discrepancies and new facts that were not asserted before her testimony, Xiang responded that “she did not write in such minute detail.”

The IJ also found that Xiang did not provide sufficient corroborative evidence to meet her burden to establish eligibility for asylum or withholding of removal. An applicant for asylum meets her burden of proof without corroboration if her testimony is credible, persuasive, and contains sufficient, specific facts. 8 U.S.C. § 1158(b)(1)(B)(ii). Corroborating evidence is necessary when the applicant’s testimony is found not credible. Lin v. Ashcroft, 386 F.3d 748, 751 (7th Cir. 2004). Xiang provided copies of her passport, visa, medical records from Shenyang City Hospital, a letter from her husband in China, her and her son’s birth certificates, her marriage certificate, and accompanying English translations for each document. The 2010 medical report refers to one past abortion and repeated IUD insertions. The IJ determined that Xiang should have provided more medical records of other routine procedures and annual checkups. Although the testimony is unclear as to whether Xiang could obtain these records, and the IJ acknowledged that the hospital would not keep records of forced abortions, the IJ ultimately concluded that Xiang could have requested or reasonably obtained these medical records. The IJ also found that the husband’s letter gave little detail of the abortion and IUD insertions and removals.

The BIA affirmed the IJ’s decision that Xiang did not meet her burden on April 29, 2016. What is left unclear in the IJ’s decision, however, is a finding of whether Xiang actually had at least one forced abortion. If so, a different analysis would have been required.

Congress has expressly addressed forced abortions in 8 U.S.C. § 1101(a)(42), which provides that a person who has been forced to abort a pregnancy “shall be deemed to have been persecuted on account of political opinion.” If an individual seeking asylum is found to have suffered such past persecution, that individual is also entitled to a presumption of a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(B); 8 C.F.R. § 1208.13(a)-(b); Lin v. Ashcroft, 385 F.3d 748, 752-53 (7th Cir. 2004). The burden then shifts and the government must properly rebut this presumption by a preponderance of the evidence. See 8 C.F.R. §§ 1208.13(b)(1)(i), 1208.16(b)(1)(i).

An applicant can further meet her burden for withholding of removal if she can show a clear probability that her life or freedom would be threatened on account of political opinion. Borovsky v. Holder, 612 F.3d 917, 921 (7th Cir. 2010); Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005). If she can establish past persecution, the applicant meets her burden and her life or freedom is presumed to be threatened. 8 C.F.R. § 1208.16(b)(1)(i).

Thus, if the IJ had credited Xiang’s claim that she had at least one forced abortion, she would automatically be entitled to a rebuttable presumption of a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(B); 8 C.F.R. § 1208.13(a)-(b); Zheng, 409 F.3d at 809.

Xiang’s first alleged forced abortion in 1994 was mentioned in her application, the medical record she provided, and in her husband’s letter. Although the IJ discussed these exhibits and their contents, the IJ was silent on whether she found that Xiang’s first forced abortion actually occurred. The IJ found that the testimony about the two other abortions impaired her credibility. The IJ discussed the discrepancies between the details of the first abortion that Xiang and her husband provide, without providing a finding of whether this first abortion actually occurred.

During oral argument, counsel for the government conceded that the IJ made no determination with respect to whether Xiang had been forced to abort a pregnancy. The government also conceded that a finding of at least one forced abortion would have entitled Xiang to a presumption of past persecution.

Because that finding has not been made, or is not clearly stated, we remand for a finding of whether Xiang had at least one forced abortion and then, depending on the finding, the appropriate analysis to follow. Accordingly, we vacate the IJ’s decision, and remand to the BIA for further proceedings consistent with this opinion.

      . Xiang also requested withholding of removal and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (''CAT”). However, she has since abandoned her request for protection under CAT.


author: POSNER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Christopher R. GATES, Defendant-Appellant.
    No. 16-2193
    United States Court of Appeals, Seventh Circuit.
    Argued December 13, 2016
    Decided January 4, 2017

      Antonio M. Trillo, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
    Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
    Before POSNER, KANNE, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

The defendant pleaded guilty to being a felon in possession of a firearm, namely a Glock 22 .40 caliber pistol with a capacity of more than 15 rounds; such possession is a felony, see 18 U.S.C. § 922(g)(1), punishable by a fine and also by imprisonment for a maximum of 10 years (there is no minimum term of imprisonment). 18 U.S.C. § 924(a)(2). The judge increased the defendant’s guidelines range by four levels, pursuant to U.S.S.G. § 2K2.1(b)(6)(B), for possessing the firearm in connection with another felony offense, namely the distribution of an illegal drug. The result was a guideline range of 57 to 71 months. But the judge sentenced the defendant to only 36 months, which was within the guideline range only if the four-level enhancement and the gun’s high-capacity magazine were ignored; the judge thought the shorter sentence appropriate.

We don’t think the judge was correct to rule that the defendant had possessed the gun in connection with two other alleged felony offenses, both being drug transactions. The first transaction involved a person who, being short of cash to pay for the synthetic marijuana that he’d just bought from the defendant, pawned his Glock (the Glock we mentioned earlier) to the defendant pending payment for the marijuana. It’s not known when Gates expected to be paid. What we do know is that a few days after the transaction he sold the gun, to someone who happened to be a confidential informant, for $300, allegedly with his marijuana customer’s consent to that method of clearing the customer’s debt; the $300 adequately compensated Gates for the marijuana that he had sold the customer.

Gates had sequestered the Glock in his garage during the brief interim before he sold it; he had not used the gun or even touched it except for carrying it to, and later (when he had a customer) from, the garage. The Glock was thus as “dangerous” in the defendant’s “use” of it as if the pawn had instead been a Patek Philippe watch. The government argues that the gun had facilitated the sale of the drug, but we don’t know whether, had the defendant not had the gun, he would have obtained some substitute pawn from the buyer of the drugs from him, or if not would have trusted the buyer to pay him eventually — for he hadn’t asked the buyer to give him a gun as collateral. Indeed he hadn’t asked for any collateral; it was the buyer’s idea to offer collateral in lieu of immediate payment, and also for the collateral to be a gun. There is no evidence that had it not been for the collateral the defendant would have cancelled his transaction with the buyer. It is common for drug buyers to be short of cash and therefore take some time before they can pay for the drugs they buy.

The government cites our decision in United States v. Doody, 600 F.3d 752, 755 (7th Cir. 2010), where we said that “receiving a gun in exchange for drugs — whether as payment or collateral — facilitates the drug transaction.” But that was not said (as the government mistakenly asserts) in regard to the four-level guideline enhancement of U.S.S.G. § 2K2.1(b)(6)(B); it was said in relation to 18 U.S.C. § 924(c), which establishes mandatory minimum sentences for using or carrying a gun in relation to a crime of violence or a drug trafficking crime — and neither “use” nor “carry” accurately describes the defendant’s relation to the Glock. For there is as we said no evidence that he demanded collateral, let alone collateral in the form of a gun, from the purchaser of synthetic marijuana from him.

Missing also from the case is evidence that the synthetic marijuana that the defendant sold was at the time of the sale a “scheduled” (that is, an illegal) drug. And if not, then the gun had no possible relation to a drug crime. Later, it’s true, the defendant sold the gun, to the confidential informant, and so pleased was the defendant with the sale that he gave the confidential informant a gift (worth $40) of approximately 16 grams of scheduled synthetic marijuana. The gift, following as it did the sale of the gun, did not facilitate that sale; and bear in mind that the defendant was punished only for alleged improper use of a gun, and not for selling (let alone giving away) illegal drugs.

Although the sentence imposed was within the guideline range for the offense of being a felon in possession of a gun, the judge’s remarks at sentencing suggest that his real concern was that the gun had been used in an illegal-drug transaction. But it hadn’t been; the defendant hadn’t used the gun to facilitate either the first transaction, which so far as appears was legal because the synthetic marijuana that he sold had not yet been “scheduled” (i.e., classified illegal), or the second transaction. And while the defendant did plead guilty to being a felon in possession of a firearm, his sentence was based not on that crime but instead on his having “used” a gun in connection with an illegal drug transaction, namely the first transaction, the sale to the owner of the gun. But the defendant had not used the gun; nor is there evidence that the sale was of an illegal drug, as distinguished from unscheduled synthetic marijuana. Nor is there the slightest indication that the gun pawned to him by the first buyer (the buyer of the unscheduled synthetic marijuana) facilitated his gift of the scheduled synthetic marijuana to the second buyer (the buyer of the gun).

The government argues that even if the judge made mistakes in sentencing they were harmless. The judge did say “it seems to me that if I were to relieve [the defendant] from the effect of the enhancements, we end up with a sentence that’s just about right.” But he also said that “the sentence ... reflects the seriousness of the offense.... It was a dangerous weapon that was possessed and it was possessed in connection with the dealing of drugs.” As far as the defendant was concerned, the gun was not “dangerous,” because he held it as collateral, with no intention of using it as a weapon. We can’t see the legal significance of the gun, taken as collateral, secreted in the garage, and then sold.

The judgment of the district court is therefore vacated and the case remanded to that court for further proceedings consistent with this opinion.