author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. George LINDEMANN, Jr., Defendant-Appellant.
    No. 96-1188.
    United States Court of Appeals, Seventh Circuit.
    Argued April 12, 1996.
    Decided June 4, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied July 1, 1996.

      Barry Rand Elden, Chief of Appeals, R. Christopher Cook (argued), Office of U.S. Atty., Crim. Appellate Div., Chicago, IL, for U.S.
    Dan K. Webb (argued), Thomas J. Frederick, Todd J. Ehlman, Bruce L. Bower, Winston & Strawn, Chicago, IL, Jay Goldberg, New York City, for George Lindemann, Jr.
    Before CUMMINGS, COFFEY and MANION, Circuit Judges.
   CUMMINGS, Circuit Judge.

“Charisma,” a show horse, died in its stall on the night of December 15, 1990. The insurance company that had issued a policy on Charisma’s life concluded that the death was the result of natural causes and paid the $250,000 value of the policy. Subsequently, the Federal Bureau of Investigation uncovered an alleged conspiracy between Tommy Burns and Barney Ward to kill horses for pay, allowing the horses’ owners to collect insurance proceeds. Burns gave the FBI information indicating that George Lindemann, Jr. (“Lindemann”), a partial owner of Charisma, had arranged the horse’s death in order to gain the proceeds of its life insurance policy. Lindemann was tried and convicted of three counts of wire fraud in violation of 18 U.S.C. § 1343. He appeals that conviction and we affirm.

I.

The following is a synopsis of Burns’ testimony at trial. Ward had arranged for Burns to kill fourteen horses for pay prior to Charisma’s death. On December 13, 1990, Ward called Bums in Chicago and told him that he could make a lot of money by coming to New York to kill a horse for a man Ward identified as “Lindemann.” Burns then called Ward’s travel agent in New York to book a flight from Chicago to White Plains, New York. Burns arrived in White Plains at 10:18 a.m. on December 15, 1990, and made his way by car to Ward’s residence in Brewster, New York — “Castle Hill.” The trip took him longer than expected because of icy road conditions. Upon his arrival, Ward told him to call “Cellular Farms,” the horse farm of the Lindemann family, and to speak to Marion Hulick, Lindemann’s horse trainer and a co-defendant in this action. Two sequential calls were then made by Burns to Hulick at Cellular Farms.

Hulick told Burns that “they had a horse which needed to be killed at their farm.” One of Ward’s employees drove Bums to Cellular Farms at around 4:00 p.m. where he was taken directly to Huliek’s apartment. In the apartment, Burns met Gerald Shepard, an acquaintance who was inquiring about a position at Cellular Farms. Outside of Shepard’s hearing, Hulick told Bums that the killing had to be completed that day because “George” wanted it done while he was in Asia and because Charisma was scheduled to travel to Florida the next day. Hulick told Bums that the amount of the insurance policy was $250,000 and Burns demanded ten percent of the proceeds in exchange for the killing. Hulick responded that “George” would pay whatever it took.

Burns, Huliek and Shepard then drove to a remote area of the farm so that Hulick could point out a back road by which Burns could enter the premises that night. The three then went to the stable area. To indicate which horse was to be killed, Hulick entered the stall of only one horse, whose name plate read “Charisma.” Prior to Burns’ departure, Hulick assured him that she would see to it that the staff was out that night and that she would lock up the dogs so that his presence would not be detected. Bums then checked into a nearby hotel and purchased electrical cords and other equipment. At about 10:00 p.m. that night, he entered Cellular Farms by way of the back road and electrocuted Charisma in its stall.

Burns’ testimony was corroborated through the following testimony and evidence. A colleague of Bums, Harlow Arlie, testified that prior to December 15, 1990, Burns told him that he had arranged a profitable horse killing for “a man in New York who owned a phone corporation.” Lindemann’s father, George Lindemann, Sr., is a successful businessman in the cellular telephone industry, and Lindemann owns 20 percent of his father’s corporation. Weather records confirmed that there were ice storms in the area around Cellular Farms on December 15, 1990. Phone records confirmed that two calls were made from Castle Hill to Cellular Farms at the time identified by Burns. Two of Lindemann’s employees confirmed Burns’ detailed description of the Cellular Farms premises, including the specifics of a statue in the courtyard and a description of the brass poles containing electrical outlets in each of the horses’ stalls. Shepard testified that when Bums arrived at Cellular Farms, Bums and Hulick had a conversation out of his hearing. He also testified that Huliek then drove him and Burns to a remote area of the farm and told Bums, “This is a seldom used road. You can park here and come back.” Shepard further confirmed that on the tour of the stables, Hulick entered the stall of only one horse — Charisma. Records confirmed that Lindemann was in Asia from November 28, 1990, to December 22,1990, and that Charisma was scheduled to travel to Florida on December 16,1990. Colleen Reed, an employee at Cellular Farms, testified that she was taken out to dinner by Hulick on the night of December 15, 1990. She testified that this was odd because it broke a strictly enforced Cellular Farms rule requiring someone to remain on the premises at all times. Reed testified that when she pointed out to Hulick that no one would be left to monitor the stables, Hulick brushed this fact aside. Reed then found Charisma dead in its stall the morning of December 16, 1990 and observed blood in its nostrils and manure. Finally, it was generally known at Cellular Farms that both Lyman Whitehead and Molly Ash had ridden Charisma in competitions. However, after Lindemann filed the insurance claim for Charisma’s death, he specifically told Reed and another employee to lie to the insurance investigators by telling them that Lindemann and his sister were the only people who had ridden Charisma. Lindemann then told the investigators the same thing.

II.

Lindemann argues that his conviction should be reversed for four reasons. First, he claims that the evidence was insufficient to establish that it was he who ordered Charisma’s killing. Second, he argues that even if it was sufficiently established that he ordered the killing, the evidence was still insufficient to prove that the use of interstate wires in furtherance of the scheme to defraud was reasonably foreseeable to him. Third, he argues that the government improperly bolstered Burns’ credibility. Finally, he argues that the government engaged in improper conduct during closing argument, depriving him of his right to a fair trial. We address each argument in turn.

A.

The government’s case against Lindemann was as follows: (1) Lindemann defrauded his insurance carrier by ordering Hulick to have Charisma killed; (2) Hulick carried out this order by bringing in Ward to aid in hiring a killer; (3) Ward brought in Burns; and (4) Burns admitted that he did the killing. Burns’ testimony regarding his conversations with Ward, his meeting with Hulick at Cellular Farms, and his electrocution of Charisma was corroborated by other testimony and evidence. Furthermore, Lindemann stipulated to Burns’ long relationship with Ward regarding the killing of numerous horses for pay. Thus the evidence strongly indicated that a conspiracy to kill Charisma existed, and that it contained the following members: (1) Bums, who did the killing; (2) Ward, who set up the contact between Cellular Farms and Bums; (3) Hulick, who pointed out to Burns the method of entrance to Cellular Farms and which of the horses was Charisma; and (4) some unknown conspiracy member, who ordered the killing and planned to pay Burns for doing it. Lindemann’s contention is that the government presented insufficient evidence to prove that he was that unknown member.

Identification of the defendant as the person who committed the crime is certainly an essential element of any offense. United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir.1995), certiorari denied, — U.S. -, 116 S.Ct. 210, 133 L.Ed.2d 142 (1995). However, in making a challenge to the sufficiency of the evidence, one bears a “heavy burden.” United States v. James, 923 F.2d 1261, 1267 (7th Cir.1991). This Court will reverse a conviction for insufficient evidence only if, after reviewing the evidence in a light most favorable to the government, it is determined that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Brandon, 50 F.3d 464, 467 (7th Cir.1995).

The evidence identifying Lindemann as the unknown member rested specifically on the following testimony of Burns: (1) Ward told Burns that he could make a lot of money coming to New York to kill a horse for a man named “Lindemann”; (2) Hulick told Burns that “George” wanted the killing done while he was in Asia; and (3) Hulick told Burns that “George” would pay whatever it took. Lindemann asserts that these statements were improperly admitted into evidence. If he is wrong, these statements clearly constitute sufficient evidence for the jury to conclude that it was indeed Lindemann who ordered the killing. Unfortunately for Lindemann, because he waived this issue by failing to object when the statements were admitted in the district court, we must review the decision to admit the statements for plain error only. United States v. Olano, 507 U.S. 725, 732-734, 113 S.Ct. 1770, 1776-1778, 123 L.Ed.2d 508 (1993). Under this standard, Lindemann must prove that there was an error, that it was plain, and that it affected his substantial rights and the fairness, integrity or public reputation of the judicial proceedings as a whole. United States v. Penny, 60 F.3d 1257, 1264 (7th Cir.1995), certiorari denied, — U.S. -, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).

We pause initially to address Lindemann’s contention that the statements were inadmissible because they did not satisfy the personal knowledge requirement of Fed. R.Evid. 602. Lindemann contends that pursuant to Rule 602, the government was required to introduce evidence to prove that Ward and Hulick, as the declarants of the statements, had personal knowledge that it was Lindemann who ordered the killing. However, the Advisory Committee Notes to Rule 801(2)(d)(E) specifically refute this contention:

No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed ... from the restrictive influence of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility, (emphasis added).

Furthermore, every court that has addressed the issue has held that coconspirator statements are not subject to the requirements of Rule 602. United States v. Saccoccia, 58 F.3d 754, 782 (1st Cir.1995) (holding that the personal knowledge requirement of Rule 602 does not apply to coconspirator statements admissible under Rule 801(d)(2)(E)), certiorari denied, — U.S. -, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996); United States v. Goins, 11 F.3d 441, 443-444 (4th Cir.1993) (same), certiorari denied, — U.S. -, 114 S.Ct. 2107, 128 L.Ed.2d 668 (1994); United States v. McLernon, 746 F.2d 1098, 1106 (6th Cir.1984) (same); United States v. Ammar, 714 F.2d 238, 254 (3d Cir.1983) (same), certiorari denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); cf. Brookover v. Mary Hitchcock Memorial Hosp., 893 F.2d 411, 415-418 (1st Cir.1990) (personal knowledge requirement does not apply to an admission under Fed.R.Evid. 801(d)(2)(D)). Thus, Rule 602 did not require the government to present specific evidence of Ward’s and Huliek’s personal knowledge.

With that aside, we turn now to whether it was plain error to admit the statements pursuant to Fed.R.Evid. 801(d)(2)(E). The basis for excluding, hearsay evidence is the notion that statements made while not under oath and while not subject to cross-examination are inherently unreliable. However, the Rules except admissions from the hearsay definition because it is disingenuous for a party to claim that a statement that he himself made is unreliable. This justification loses force in conspiracy situations, however, where the declarant is not the party against whom the statement is offered. But two concerns unrelated to reliability favor admission in conspiracy situations. First is the basic agency principle that acts by one conspirator are chargeable against all those who conspired. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Thus one conspirator’s statements are admissible as evidence against the others. The second concern is necessity:

Conspiracies are secretive; often their aim is to commit destructive crimes (drug dealing, kidnapping, extortion, murder); often they raise social costs and risks more than individual crimes; live testimony by active participants is hard to get. These reasons account for the crime of conspiracy, the leeway given to the government in prosecuting, and the [coeonspirator] exception itself. Mueller and Kirkpatrick, Federal Evidence § 425 (2d ed.1994).

Because of these concerns, the Federal Rules of Evidence treat coeonspirator statements as non-hearsay, despite the fact that the declarant is not the party against whom they are offered. Thus a court may admit such statements if it determines that the declarant and the defendant were involved in an existing conspiracy, and that the statement was made during and in furtherance of that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175-176, 107 S.Ct. 2775, 2778-2779, 97 L.Ed.2d 144 (1987). The standard to be applied is a preponderance of the evidence. Id. Furthermore, in making its determination, the court may consider all non-privileged evidence, Fed.R.Evid. 104(a) (“[The court] is not bound by the rules of evidence except those with respect to privileges.”), including the statements themselves. Id. at 181, 107 S.Ct. at 2781-2782. However, to ensure an element of reliability in the statements, courts have required that some evidence, independent of the statements, exist to corroborate the conspiracy’s existence.

Given these principles, Judge Marovich’s determination that the statements at issue were made in furtherance of a conspiracy between Lindemann, Hulick, Ward, and Bums, and thus admissible pursuant to Fed. R.Evid. 801(d)(2)(E), was not plain error. The evidence sufficiently demonstrated that Burns killed Charisma and was involved in a conspiracy with others in doing so: Bums admitted to being in the “horse killing business”; he admitted to killing Charisma for pay; Arlie testified that prior to leaving, Bums mentioned being paid to go kill a horse in New York; and Shepard testified that Burns was at Cellular Farms on December 15, 1990. Furthermore, there was sufficient evidence that the conspiracy involved both Hulick and Ward: Burns testified at length to the specific roles of both Hulick and Ward in the conspiracy; phone records confirm telephone calls from Ward’s residence to Cellular Farms at the times indicated by Burns; Shepard corroborated that Hulick and Burns had a secretive conversation on December 15, 1990, and that Hulick pointed out to Bums a seldom used back road that he could use “to come back” that night; and Shepard further corroborated that while they were in the stables, Hulick entered Charisma’s stall, and no other.

Finally, there is evidence that the conspiracy involved Lindemann. Most important, of course, are the statements themselves, which involved Ward and Huliek referring specifically to “George” and “Lindemann” as the unknown conspiracy member. But the evidence does not end there. The government offered evidence corroborating many of the facts contained in the statements. Bourjaily, 483 U.S. at 180, 107 S.Ct. at 2781 (“[A] piece of evidence, unreliable in isolation, may become quite probative when corroborated by other evidence.”). One of Hulick’s statements was that Burns had to kill Charisma on December 15, 1990, because “George want[ed] it done while he [wa]s in Asia,” and because Charisma was scheduled to travel to Florida the next day. The government introduced independent evidence proving that Lindemann was in fact in Asia on December 15, 1990, and that he would return a few days later. It also introduced independent evidence that Charisma was scheduled to travel to Florida on December 16, 1990. Proving that particular elements of the statement did in fact occur satisfies the function of the independent evidence requirement: ensuring an element of reliability in the statement as a whole. Bourjaily, 483 U.S. at 179-180, 107 S.Ct. at 2781 (“[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it.”); see also United States v. Blevins, 960 F.2d 1252, 1256 (4th Cir.1992) (admitting coconspirator statements detailing defendant’s role in a conspiracy where independent evidence established that the defendant was at a specific location at the time the coconspirator had stated); United States v. Brown, 940 F.2d 1090, 1093 (7th Cir.1991) (same).

In addition, Arlie testified that prior to leaving for New York, Bums told him that he was going to New York to kill a horse for “a man who owned a phone company.” The government offered proof that Lindemann owned 20 percent of his father’s large cellular phone corporation. The government also introduced evidence that after Charisma’s death, Lindemann intentionally lied, and ordered his employees to lie, to insurance investigators so that the insurance company would not be able to apply one of the policy’s exceptions. While these actions did take place after Charisma’s death, they aid in making it “more likely than not” that Lindemann was involved in the fraud. See United States v. Testa, 548 F.2d 847, 852 (9th Cir.1977) (“Even if a conspiracy has terminated, evidence of subsequent acts may be admitted to elucidate the nature of the prior conspiracy”).

Given the multiple statements referring to “George Lindemann,” the evidence corroborating facts contained in the statements, and Bums’ corroborated testimony regarding the rest of the conspiracy, Judge Marovieh was entitled to conclude that, more likely than not, Ward and Huliek were involved in a conspiracy with Lindemann to kill Charisma. Judge Marovieh was also entitled to conclude that the statements were made in furtherance of that conspiracy. Each statement was made to identify for Burns the party who would pay him for the killing. Such identifications facilitated Bums’ decision to kill Charisma and were therefore in furtherance of the conspiracy. See United States v. Nevils, 897 F.2d 300, 308 (8th Cir.1990) (naming of eoeonspirators held to be in furtherance of conspiracy), certiorari denied, 498 U.S. 844, 111 S.Ct. 125, 112 L.Ed.2d 93 (1990). Thus Judge Marovich’s determination that the statements were admissible pursuant to Fed.R.Evid. 801(d)(2)(E) was not plain error.

B.

Next, Lindemann argues that there was insufficient evidence that he caused the use of interstate wires in furtherance of the conspiracy to defraud the insurance company, and thus insufficient evidence that he violated 18 U.S.C. § 1343. There are two elements to the offense of wire fraud under Section 1343: (1) a scheme to defraud; and (2) the use of a wire communication in furtherance of that scheme. United States v. Strickland, 935 F.2d 822, 828 (7th Cir.1991), certiorari denied, 502 U.S. 917, 112 S.Ct. 324, 116 L.Ed.2d 265 (1991). As discussed above, the government introduced sufficient evidence to establish that Lindemann, Huliek, Ward, and Burns were involved in a conspiracy to kill Charisma. It further introduced evidence that the conspiracy members knew that the purpose of the killing was to defraud the insurance company: Burns testified that when he asked Huliek the value of the insurance policy, she stated that it was $250,000 and that Lindemann would pay Burns 10 percent as his share. This evidence was sufficient to establish a scheme to defraud and the first element was met.

For the second element, Lindemann must have caused the use of interstate wires in furtherance of the scheme to defraud. However, he need not have made the calls himself: As a member of a conspiracy, he is criminally responsible for wire communications “caused by other [conspiracy] members, whether or not he knew of or agreed to any specific” communication. United States v. Wormick, 709 F.2d 454, 461 (7th Cir.1983). The government introduced evidence that Burns and Ward made interstate calls in furtherance of the conspiracy: Ward’s telephone call from New York to Burns in Ulinois to bring him into the conspiracy; Bums’ return of that call the same day; and Bums’ call from Illinois to Ward’s travel agent in New York to arrange his trip to Cellular Farms to do the killing. Lindemann cannot be held criminally responsible for those calls unless he acted with knowledge that the calls would follow in the ordinary course of business of the scheme, or the calls could have been reasonably foreseen by the defendant. United States v. Brandon, 50 F.3d at 467.

Viewed in the light most favorable to the government, the evidence indicated that Lindemann ordered Hulick to have Charisma killed while he was in Asia. Whether he had already spoken to Ward on the issue of hiring a killer, or whether Hulick called in Ward herself, it is reasonably foreseeable that Ward would have to make telephone calls to arrange the hiring. Lindemann does not really dispute this. Rather, he argues that the government did not prove that he could have reasonably foreseen that his actions would result in interstate calls. Lindemann has confused what must be proven to satisfy the second element. The government must only prove:

(1) either:
(a) he acted with knowledge that telephone calls would be made in furtherance of the scheme to defraud; or
(b) it was reasonably foreseeable that telephone calls would be made in furtherance of the scheme to defraud; and
(2) that the calls that were actually made in furtherance of that scheme were of an interstate nature.

It need not prove that the interstate nature of the calls was foreseeable. United States v. Blackmon, 839 F.2d 900, 907 (2d Cir.1988) (conviction for violation of wire fraud statute does not require knowledge of the interstate nature of the calls made); United States v. Bryant, 766 F.2d 370, 375 (8th Cir.1985) (same), certiorari denied, 474 U.S. 1054, 106 S.Ct. 790, 88 L.Ed.2d 768 (1986) This is so because the element of an “interstate nexus” in Section 1343 is included in the statute not because making interstate calls is more “wrong” in a moral sense than making intrastate calls, but because Congress’s power over intrastate activities is limited by the Commerce Clause. Whether the defendant knows that his conduct involves an “interstate nexus” adds nothing to the gravity of the offense that he is committing. Thus it has consistently been held that for statutes in which Congress included an “interstate nexus” for the purpose of establishing a basis for its authority, the government must prove that the defendant knew he was involved in the wrongful conduct, but need not prove that the defendant knew the “interstate nexus” of his actions. See United States v. Feola, 420 U.S. 671, 685, 95 S.Ct. 1255, 1264, 43 L.Ed.2d 541 (1975) (conspiracy to assault a federal officer, 18 U.S.C. § 111); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir.1994) (use of interstate wires to threaten individuals, 18 U.S.C. § 875(c)); United States v. Muza, 788 F.2d 1309, 1311-1312 (8th Cir.1986) (arson on building used in interstate activities, 18 U.S.C. § 844(i)); United States v. Roglieri, 700 F.2d 883, 885 (2d Cir.1983) (possession of material stolen from the mail, 18 U.S.C. § 1708); United States v. LeFaivre, 507 F.2d 1288, 1298 (4th Cir.1974) (use of interstate facilities in gambling activity, 18 U.S.C. § 1952), certiorari denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975); Overton v. United States, 405 F.2d 168, 169 (5th Cir.1968) (receiving a stolen vehicle in interstate commerce, 18 U.S.C. § 2313).

This lack of a mens rea requirement with regard to the “interstate nexus” is in no way unfair. Defendants who use interstate wires in schemes to defraud are not involved in conduct that, other than the interstate aspect of their calls, is legitimate in nature. Thus they cannot claim unfair surprise in finding out that they were violating the law. The only surprise they experience is in learning that not only were they violating state law, they were violating federal law as well. Feola, 420 U.S. at 685, 95 S.Ct. at 1264 (“The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum.”).

Thus we reject Lindemann’s claim that there was insufficient evidence that he violated 18 U.S.C. § 1343. The government proved each of the required elements of the statute: It introduced sufficient evidence for the jury to conclude that Lindemann was involved in a conspiracy to defraud; it introduced sufficient evidence that it was reasonably foreseeable to Lindemann that telephone calls would be made in furtherance of that scheme; and it introduced sufficient evidence that interstate telephone calls were actually made in furtherance of the scheme. Nothing more was required.

C.

Lindemann next challenges the admission of evidence regarding Bums’ cooperation with the government on other cases. During Burns’ cross-examination, Lindemann attacked the credibility of his testimony by suggesting that he would not have gotten a plea deal if he hadn’t come up with the name of a “big fish” like Lindemann. Naturally, the government wanted to offer evidence to rebut Lindemann’s assertion. Specifically, it wanted to explain to the jury that Lindemann’s indictment and Bums’ cooperation were the result of a much larger investigation involving the killing of 15 horses, including Charisma. Thus the government elicited from Bums the following testimony:

Q: Now, Mr. Burns, when the federal agents came down to Florida after you were arrested for killing a horse, Streetwise, they asked you a lot of questions about your crimes; is that right?
A: Yes, they did.
Q: Were those agents focused on George Lindemann?
A: No, they weren’t. They basically focused on Helen Brach.
Q: During the course of your cooperation, Mr. Bums, you cooperated against other wealthy people; isn’t that right?
A: Oh yeah.
Q: And you’ve cooperated, have you not, ■ Mr. Bums, with respect to other famous equestrians?
A: Yes, I have.
^ ‡ :{: % ‡ ‡
Q: Is George Lindemann a big part of your cooperation or a small part of your cooperation?
A: They never treated him like he was a big part.
Q: In fact, Mr. Burns, you told the government about many, many people that you killed horses for. To your knowledge, how many people did you discuss with the government, roughly?
A: 30.
Q: And how many of those people have pleaded guilty?
A: 90 percent of them.

[Tr. 594-595]. Immediately following this testimony, the court instructed the jury as follows:

This testimony may be considered by you solely for the purpose of understanding the scope of Tom Burns’ cooperation with the government. The fact that other subjects in the investigation may have pled guilty must not be considered by you to infer that the defendants are, therefore, guilty of the crimes with which they are charged.

[Tr. 596]. We review the district court’s decision to admit this testimony under an abuse of discretion standard. United States v. Gill, 58 F.3d 334, 337 (7th Cir.1995).

Lindemann argues that Bums’ testimony was inadmissible because it was essentially “bolstering.” “Bolstering” is the practice of offering evidence solely for the purpose of enhancing a witness’s credibility before that credibility is attacked. Such evidence is inadmissible because it “has the potential for extending the length of trials enormously, ... asks the jury to take the witness’s testimony on faith, ... and may ... reduce the care with which jurors listen for inconsistencies and other signs of falsehood or inaccuracy.” United States v. LeFevour, 798 F.2d 977, 983 (7th Cir.1986). Once a witness’s credibility has been attacked, however, the non-attacking party is permitted to admit evidence to “rehabilitate” the witness. United States v. McKinney, 954 F.2d 471, 478 (7th Cir.1992), certiorari denied, 506 U.S. 1023, 113 S.Ct. 662, 121 L.Ed.2d 587 (1992).

Lindemann’s suggestion that Bums falsely implicated him to obtain a plea deal was certainly an attack on the credibility of Burns’ testimony. More specifically, it was an attempt to show that Bums had a bias:

Bias is the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. United States v. Abel, 469 U.S. 45, 53, 105 S.Ct. 465, 469-470, 83 L.Ed.2d 450 (1984) (emphasis added).

Bias is one of the five acceptable methods of attacking the credibility of a witness’s testimony: (1) attacking the witness’s general character for truthfulness; (2) showing that, prior to trial, the witness has made statements inconsistent with his testimony; (3) showing that the witness is biased; (4) showing that the witness has an impaired capacity to perceive, recall, or relate the event about which he is testifying; and (5) contradicting the substance of the witness’s testimony. Wright & Gold, Federal Practice and Procedure § 6094 (1990). Thus Lindemann was perfectly entitled to suggest his theory that Bums was lying about Lindemann in order to better the parameters of his plea deal. Abel, 469 U.S. at 53, 105 S.Ct. at 469-470. However, the direct consequence of the attack was that the government was entitled to introduce evidence to rehabilitate Burns on the issue. United States v. McKinney, 954 F.2d at 478.

The Federal Rules of Evidence specifically address the bolstering/rehabilitation aspect of only two of the five attack methods: Character for truthfulness and prior inconsistent statements. The admissibility of evidence regarding a witness’s bias, diminished capacity, and contradictions in his testimony is not specifically addressed by the Rules, and thus admissibility is limited only by the relevance standard of Rule 402. Wright & Gold, Federal Practice and Procedure § 6092 (1990). Therefore, because the attack at issue was on Burns’ bias, and not on his character for truthfulness in general, Lindemann’s contention that the limitations of Rule 608 should have applied is incorrect. Moreover, because bias is not a collateral issue, it was permissible for evidence on this issue to be extrinsic in form. United States v. Brown, 547 F.2d 438 (8th Cir.1977) (extrinsic evidence admissible to rebut evidence of bias); see also United States v. Beauchamp, 986 F.2d 1, 4 (1st Cir.1993); United States v. Capozzi, 883 F.2d 608, 615 (8th Cir.1989), certiorari denied, 495 U.S. 918, 110 S.Ct. 1947, 109 L.Ed.2d 310 (1990); United States v. James, 609 F.2d 36, 46 (2d Cir.1979), certiorari denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980).

Here we conclude that the admission of evidence regarding Burns’ cooperation in other cases was relevant. The evidence specifically rebutted the allegation that Bums was biased out of self-interest in Lindemann’s case: Bums’ successful participation in numerous other cases meant that at the time he was negotiating over his plea deal, he had lots of information to use as bargaining chips. That fact was relevant under the standards of Fed.R.Evid. 402 because it made less probable the assertion that Burns was lying in Lindemann’s case out of self-interest. See United States v. Lochmondy, 890 F.2d 817, 821 (6th Cir.1989); United States v. Sanchez, 790 F.2d 1561 (11th Cir.1986); United States v. Martinez, 775 F.2d 31 (2d Cir.1985); United States v. Fusco, 748 F.2d 996 (5th Cir.1984). Finally, the district court immediately warned the jury that it was not to infer Lindemann’s guilt from the fact that other indicted individuals had pleaded guilty. Thus the evidence was used only to assess Burns’ credibility, not as evidence of Lindemann’s guilt.

In conclusion, because Lindemann attacked the credibility of Bums’ testimony by asserting that Burns had a bias in Lindemann’s case, the government was permitted to rebut that assertion by introducing evidence of its own. Furthermore, because that evidence was relevant according to Fed. R.Evid. 402, the district court’s decision to admit it was not an abuse of discretion.

D.

Finally, Lindemann contends that the government’s improper conduct in closing argument deprived him of his right to a fair trial. We apply a two-part test for assessing such allegations. First, we consider the prosecutor’s disputed remarks in isolation to determine whether they are improper. If so, we then consider the remarks in the context of the entire record and assess whether they had the effect of denying the defendant a fair trial. United States v. Johnson-Dix, 54 F.3d 1295, 1304 (7th Cir.1995). Lindemann cites numerous prosecution statements as being prejudicial, most of which he did not object to. Only a few of those statements warrant discussion.

First, Lindemann argues that the government made improper closing arguments by referring to facts not in evidence. Specifically, the government stated, “George Lindemann and Marion Hulick were not indicted because they are rich [or] because they are well known in the equestrian industry. They were indicted because information came to the government which it was able to corroborate a hundred different ways.” Lindemann argues that the government should not have been allowed to make this statement because it did not introduce the “hundred different” pieces of evidence to which it was referring.

Considering the prosecution’s statements in isolation, it is not clear that they were improper. Lindemann had consistently argued that he was indicted only because of his wealth and social stature. The prosecution was entitled to rebut this assertion by telling the jury that the reason for his indictment had nothing to do with his status, but was because of corroborated evidence. Informing the jury that the government obtains corroborated evidence prior to issuing its indictments is hardly a revelation. Referring to specific pieces of evidence that were not admitted at trial would have been improper. See United States v. Fearns, 501 F.2d 486, 489 (7th Cir.1974). However, the “hundred different ways” comment was not a reference to one hundred individual pieces of evidence, it was just hyperbole. The U.S. Attorney could just as easily have chosen to say a “million different ways.” However, even if we were to conclude that the statement was somehow improper, Lindemann has not demonstrated that he was denied a fair trial in the context of the entire record.

Lindemann’s next challenge arises out of the same suggestion that Lindemann was only indicted because of his stature. To rebut the suggestion, the government introduced evidence that its investigation had been extremely large in nature and that Lindemann was just one of the many individuals indicted. In eliciting testimony to this effect, it was mentioned in the jury’s presence that investigators had originally contacted Burns in reference to the investigation of Helen Brach’s disappearance. The district court made the following decision regarding the mention of this other investigation:

I have no problem with ... the defense ... indicating that because of [Lindemann’s] special stature he is the prize that the government seeks. But, on the other hand, the government has an opportunity to respond to that, it seems in all fairness, and say that this is a more far-ranging investigation than that involving Mr. Lindemann.
The name Helen Brach is already before the jury. And, therefore, some direct question about who else was involved in this investigation or who was the primary focus [will be permitted]. If the answer to that is Helen Brach, take the answer and move no further in exploring the answer. And at some time when you think it is appropriate, I am going to instruct the jury that there is no suggestion, none, that either George Lindemann or Marion Hulick were in any way involved with the disappearance of Helen Brach, and that this testimony may only be considered by [the jury] solely for the purpose of understanding the scope of Tom Bums’ cooperation with the government. [Tr. 527].

During the rest of the trial, Bums mentioned being contacted regarding the Helen Brach case several times. However, he was never questioned any further on the issue, and the jury was instructed just as the judge stated. Given the court’s instruction, the jury was not affected by the mention of the Brach investigation. Thus the statements did not deny Lindemann a fair trial.

Finally, in closing argument, Lindemann’s counsel suggested that the government’s lack of medical evidence as to Charisma’s cause of death supported Lindemann’s innocence. In criticizing the alleged lack of evidence, he referred to the government’s “power” and “resources,” implying that the government could have presented such evidence if it existed. To respond to this suggestion, the prosecution reminded the jury that it was Lindemann, and not the government, who, in opening argument, had promised medical evidence to establish Charisma’s cause of death. The prosecution then made the following statement:

This is what they told you the evidence would prove. Again, did they present any evidence that the horse died of a cardiac arrhythmia? Don’t their resources at least equal those of Peter Cullen, the one-man band who solved the Helen Brach case.

Mr. Cullen was one of the federal investigators who worked on Lindemann’s and the other horse-killing cases. The district court immediately struck the prosecutor’s last sentence and instructed the jury as follows:

Ladies and Gentlemen, [the reference to Mr. Cullen was] one of the remarks that I told you to ignore — and I really want to make sure, because it is inappropriate. I don’t care, nor should you, who solved the Helen Brach murder. That’s not a part of this trial. Whether he is the hero or anybody is the hero is immaterial. It is particularly so since he hasn’t even testified in this trial. [Tr. 1757].

Again, given the district court’s immediate and proper instruction to the jury that it was to ignore any references to the Brach case, and Mr. Cullen’s involvement specifically, Lindemann has not demonstrated that he was denied a fair trial.

III.

For the foregoing reasons, the decision of the district court is Affirmed.

      . Ward was a co-defendant in the original indictment, but his trial was severed from the trial of Lindemann and Hulick.

      . Prior to the trial, the government filed a written proffer and motion in limine requesting that the statements be admitted pursuant to Fed. R.Evid. 801(d)(2)(E). The district court then held a hearing on the motion and specifically asked, "[I]s there anything that is in dispute or any question about the government’s meeting its obligation to show the conspirators and the co-conspirators as required by United States v. Santiago, [582 F.2d 1128 (7th Cir.1978)]?” Counsel for Hulick answered in the negative and counsel for Lindemann remained silent. The court then granted the motion. Furthermore, neither Lindemann nor Hulick.objected or requested a limiting instruction when the statements were elicited at trial.
      Lindemann concedes that he did not object to the admission of the statements. He argues that he did not do so because "the statements were admissible to show a conspiracy between certain alleged participants in the fraud scheme." However, he claims that his failure to object does not mean that he abandoned his claim that the statements were inadmissible to identify him as a participant in that scheme. Unfortunately, that is exactly what it means. Attempting to draw a distinction between admissibility regarding the conspiracy and admissibility regarding identification does not eliminate the most basic tenet of the law of waiver: If one would like to preserve error regarding the admission of evidence, one must make a specific objection to that evidence at the time when it is offered. See, e.g., United States v. Maholias, 985 F.2d 869, 877 (7th Cir.1993).

      . Rule 602 states that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602.

      . Although the Supreme Court expressly declined to decide whether a trial court could rely “solely upon [the declarant’s] hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence," Bourjaily, 483 U.S. at 181, 107 S.Ct. at 2781, nearly every Circuit Court of Appeals has answered the question in the negative and required some independent evidence to corroborate the conspiracy. See United States v. Clark, 18 F.3d 1337, 1340-1341 (6th Cir.1994), certiorari denied, - U.S. -, 115 S.Ct. 152, 130 L.Ed.2d 91 (1994); United States v. Sepulveda, 15 F.3d 1161, 1181 (1st Cir.1993), certiorari denied, - U.S. -, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994); United States v. Byrom, 910 F.2d 725, 736 (11th Cir.1990); United States v. Garbett, 867 F.2d 1132, 1134 (8th Cir.1989); United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir.1988); United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.1988), certiorari denied, 488 U.S. 821, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988); United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir.1987), certiorari denied, 494 U.S. 1059, 110 S.Ct. 1532, 108 L.Ed.2d 771 (1990).

      . We cannot take seriously Lindemann’s argument that the government failed to meet its burden of proving that the "George Lindemann” referred to was not his father, George Lindemann, Sr.: “Even assuming that these were references to 'George Lindemann,' there were at least two George Lindemanns to whom the name could have reasonably referred: George Lindemann, Sr. as well as George Lindemann, Jr." [Def. Br. 24]. Furthermore, Lindemann took no steps to raise this theory of defense below, consistently referring to himself in argument and in stipulations as simply "George Lindemann.”

      . The government argues that Lindemann was vicariously liable for the calls of Ward and Bums such that Lindemann's conviction could stand as long as the government proved that the calls were foreseeable to either Ward or Bums. This may have been true if the juiy was instructed on vicarious liability. However, the government did not argue this theory to the jury. The jury was specifically instructed that the reasonable foreseeability of the calls was an element of each count that had to be proven with respect to Lindemann. Thus the government is precluded from advancing the vicarious liability theory on appeal. United States v. Manzella, 791 F.2d 1263, 1267-1269 (7th Cir.1986).

      . We address the reference to the Helen Brach investigation below in Part D.

      . Following the traditional rule against bolstering, Fed.R.Evid. 608 states that “evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked....” Furthermore, Rule 608 provides specific limitations on the admissibility of rehabilitation evidence: Once a witness’s character for truthfulness has been attacked, evidence is admissible "in the form of opinion or reputation” (608(a)) or non-extrinsic evidence elicited on cross-examination (608(b)). Fed.R.Evid. 801(d)(1)(B) contains the bolstering/rehabilitation rule by defining as nonhearsay only those prior consistent statements that are offered "to rebut an express or implied charge" against a witness of "recent fabrication or improper influence or motive."

      . Helen Vorhees Brach, widow of one of the Brach candy family and a horse aficionado, disappeared in 1977, resulting in a publicized investigation.


source: Caselaw Access Project

author: TERENCE T. EVANS, Circuit Judge.

license: Public Domain

text:
    Robert PARRILLO, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellee.
    No. 95-3947.
    United States Court of Appeals, Seventh Circuit.
    Argued April 4, 1996.
    Decided June 5, 1996.
    Rehearing Denied July 8, 1996.

      Michael J. O’Halloran, Thomas M. En-right, Keely Truax (argued), Parrillo, Weiss & O’Halloran, Chicago, IL; for Plaintiff-Appellant.
    Steven B. Belgrade, John A. O’Donnell, Joseph G. Howard (argued), Belgrade & O’Donnell, Chicago, IL, for Defendant-Appellee.
    Before POSNER, Chief Judge, and KANNE and EVANS, Circuit Judges.
   TERENCE T. EVANS, Circuit Judge.

Robert Parrillo, the senior partner in the Chicago law firm of Parrillo, Weiss & O’Halloran, owned a beauty of a boat. Actually, “boat” doesn’t do it justice; it was a yacht— and a 77-footer no less. Parrillo had it custom built in 1985 in Ziarregio, Italy, at a cost of one million dollars. He christened it the Lascia Fare, Italian for the French laissez-faire.

According to Parrillo, nothing on his million-dollar yacht was “off-the-shelf’; everything was “custom, custom, custom.” Parrillo’s pursuit of perfection is perhaps epitomized by the wood paneling and veneer throughout the vessel. All of the woodwork was of “the same finely grained wood, probably from the same tree.” Despite his firm belief that the Lascia Fare had attained the desired state of perfection, Parrillo put her up for sale in 1990. His initial asking price of $1.5 million was lowered at least once, but still no buyer could be found. Parrillo began leasing a different boat, the Doubloon, while the Lascia Fare remained in wet storage at Bradford Marine in Florida. In the spring of 1993, Parrillo decided to resume using the Lascia Fare and told the captain to prepare the vessel for use. A week later, the Lascia Fare caught fire, suffering extensive damage. The disagreement between Parrillo and his insurance company over the price tag to put on that damage is the origin of the case before us.

From 1985 until the time of the fire, the Lascia Fare was insured by Commercial Union Insurance Company. The “agreed value” of the yacht under the annually renewed policy was a million dollars, and the policy carried a $100,000 deductible. After the fire, Commercial Union hired a surveying company, Pascoe & Associates, to determine the extent of the damage to the Lascia Fare, and to solicit bids for necessary repairs to the vessel. At the request of the parties, a total of four shipyards submitted bids. Bradford Marine, the marina which housed the Lascia Fare for the past few years, submitted a bid of $881,892.56. Chinook Marine, owned by an acquaintance of Parrillo, bid $906,767. Glass-Tech bid $520,000, but did not provide a detailed breakdown of its bid. The winning bid, “guaranteed not to exceed” $532,236.53, came from Cable Marine, Inc. of Fort Lauderdale, Florida.

Parrillo wanted Commercial Union to accept the Bradford bid. He felt it was impossible to restore the Lascia Fare for only half a million dollars, and preferred Bradford because “they take the attitude that the customer is always right.” Of the Cable Marine bid, he said, “The bid is a joke. In the marine circles I know of, the ones I travel in, the bid is a joke.” Commercial Union refused to pay more than the amount of the Cable bid, and offered Parrillo a choice between the three options set forth in his insurance policy. He could have Cable Marine do the work for the “not to exceed” price; he could pay someone else to do the work and be reimbursed up to the amount of the Cable bid; or he could sell the boat for salvage and take the amount of the Cable bid in cash. Parrillo found none of these options acceptable. Concerned that Cable would leave his boat looking “like a Winnebago,” Parrillo wanted Commercial Union to guarantee that he would be “100 percent satisfied” with Cable’s work, and to bear the cost of having the work completely redone if it didn’t measure up to his expectations. Commercial Union refused to make a guarantee of personal satisfaction.

Cable Marine suggested that Parrillo hire his own surveyor to assuage his doubts about the quality of Cable’s work, and recommended Gerald Slakoff. Parrillo took the recommendation, though he appears to have done so with an eye more toward litigation than toward restoring his boat. He asked Slakoff to take a look at the Lascia Fare, but to “only do a complete survey if you believe that you can render Cable’s bid incomplete or if you believe that the survey will materially assist me in my law suit against Commercial Union.” Slakoff testified that all of the bidders were reputable boatyards, and that Cable Marine had the facilities, expertise, and access to materials to do a good job on the Lascia Fare. He estimated that repairs would cost about $843,027, and that the salvage value of the boat was between $150,-000 and $200,000.

Soon after Slakoffs survey, on August 25, 1993, Parrillo sold the boat for a salvage value of $312,000, and accepted payment in the amount of the Cable bid (minus a $100,-000 deductible) from Commercial Union. After selling the boat and collecting the insurance (bagging $744,236.53), he claimed that the boat should have been declared a total loss. If it was a total loss Parrillo would be entitled to the full agreed value of the boat— one million dollars.

Parrillo sued Commercial Union, raising a number of claims based on what he said was misconduct by the insurer. He claimed breach of contract on the theory that the Lascia Fare was a constructive total loss under the terms of the policy. He alleged that Commercial Union violated the Illinois Consumer Fraud and Deceptive Practices Act by engaging in a “deceptive and malicious scheme” to defraud its insureds by deliberately procuring lowball bids. Finally, he sought damages of $15,000 per week for loss of use of the boat.

Commercial Union moved for summary judgment and the district court granted the motion on all counts. Specifically, the court found there was no evidence to support the “malicious conspiracy to defraud” claim, that Parrillo could not recover for loss of use, and that Commercial Union complied with the plain language of the insurance contract. Parrillo moved to vacate the judgment. The court denied the motion to vacate as “a document that seems to [have been] filed more out of disappointment ... than a reasoned attempt to take a look at what might have been wrong in the first place.” This appeal followed.

We review the district court’s grant of summary judgment de novo, Smith v. Shawnee Library System, 60 F.3d 317 (7th Cir.1995), drawing all reasonable inferences in favor of the losing party. Bratton v. Roadway Package System, Inc., 77 F.3d 168 (7th Cir.1996). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Roger v. Yellow Freight Systems, Inc., 21 F.3d 146 (7th Cir.1994). Despite the glamorous yacht at the factual center of this ease, the legal issues revolve around the less-than-glamorous task of interpreting an insurance policy. In Illinois, the interpretation of insurance contracts is a matter of law, Baker v. America’s Mortgage Servicing, Inc., 58 F.3d 321 (7th Cir.1995), and insurance cases are therefore often appropriate for summary judgment. Security Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377 (7th Cir.1995). But even cases that hinge largely on contract interpretation may not be decided on summary judgment if the court is presented with disputed, material facts.

The district court stated that “Parrillo’s failure to comply with Local Rule 12(n) means there are no material facts in dispute.” Judge Zagel, who heard the case in the district court, was correct in noting that, had Parrillo failed to comply with the requirements of Rule 12(h), he would be deemed to have admitted the facts as presented by Commercial Union. LaSalle Bank Lake View v. Seguban, 54 F.3d 387 (7th Cir.1995). This statement, however, led to considerable dispute over the question of whether Parrillo had complied with Rule 12(n), whether Commercial Union had complied with Local Rule 12(m), and, if one or both of the parties had failed to comply, who could be deemed to have admitted what.

Fortunately, it is not necessary for us to determine whether one or both of the parties failed to comply with the local pleading rules. Judge Zagel, in denying Parrillo’s motion to reconsider, clearly stated that his “aside” about Rule 12 compliance was “not cruda! to the court’s opinion.” More important, a thorough examination of the entire record reveals that however the Rule 12 question is decided, no genuine issue of material fact exists in this case. This is not to say that the parties agree on the facts here. On the contrary, many facts are disputed. But factual disputes will only prevent summary judgment if the disputed issues are material, and in this case none of them are. A disputed issue of fact is considered material for the purpose of summary judgment “only if it might affect the outcome of the case under governing law.” Anweiler v. American Elec. Power Serv. Corp., 3 F.3d 986, 990 (7th Cir.1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Once the legal issues in this case are defined, it becomes clear that none of the factual disputes are material as they would need to be to defeat summary judgment.

Parrillo’s primary argument on appeal is that he should have received the full million dollars from Commercial Union because the boat was a constructive total loss. He claims that by failing to declare the Lascia Fare a total loss, Commercial Union breached its contract with him. In support of this argument, Parrillo cites definitions of “constructive total loss” from a number of sources, including surveyor Slakoff and Black’s Law Dictionary. But strangely, Parrillo fails to discuss the truly relevant definition of the term — the one found in the insurance policy itself. The language of the contract is plain: “There shall be no recovery for a constructive Total Loss hereunder unless the expense of recovering and repairing the Vessel would exceed the Agreed Value.” There is no dispute over the agreed value of the Lascia Fare. It is also undisputed that four boatyards and Parrillo’s own witness agreed the Lascia Fare could be restored for less than the agreed value. The range of estimates is broad, but not one of the bids crossed the million-dollar threshold, and at least two of them fell well below it. According to the plain language of the policy, the Lascia Fare was not a constructive total loss. To argue that it was borders on the frivolous.

Parrillo attempts to stir up a genuine issue of material fact by arguing that the Lascia Fare could never be restored for the amount of the Cable bid. In support of his argument, he cites the Slakoff survey, the Bradford and Chinook bids, and testimony that the new owner of the Lascia Fare spent over $900,000 on renovations. The problem with this argument is that whether it was possible to restore the Lascia Fare for $532,236.53 is not relevant to the outcome of this case. While that factual question is certainly disputed, it is not material; Cable guaranteed it would restore the Lascia Fare for an amount not to exceed $532,236.53. Cable Marine was obligated to do the work for that price. Whether Cable Marine could make a profit on the job, just break even, or lose its shirt on the job is not material to the question of whether Commercial Union fulfilled its contractual obligation to Parrillo. Commercial Union’s duties under the insurance contract were satisfied by offering to pay the guaranteed full cost of restoration. Parrillo tried to extend the insurer’s contractual duties, demanding guarantees of personal satisfaction. As Judge Zagel put it, these “obligations of personal satisfaction sprang only from Parrillo’s imagination, not the policy’s terms.”

To buttress his argument that the Cable bid was inadequate, Parrillo turns to a clause in the policy which states that the “cost of repairs [is] to be paid without deduction. ‘New for Old’ except as follows: ... (2) On any plywood, metal, or fiberglass portions of the Yacht, this company shall not be liable for more than: (a) The cost of making repairs in accordance with the customary and generally accepted repair practices[.]” Parrillo argues that the district court mistakenly believed that “Commercial Union was not liable for more than ‘the cost of making repairs in accordance with ... generally accepted repair practices.’” Basing its decision on this erroneous standard, Parrillo argues, the district court found that Commercial Union had indeed fulfilled its contractual obligations. But a “litigant wanting to challenge the core of the district court’s holding must do so in its opening brief and not hold its fire until after the appellee has filed its only brief.” Horn v. Transcon Lines, Inc., 7 F.3d 1305, 1308 (7th Cir.1993). This argument is raised for the first time in Parrillo’s reply brief, and therefore it is waived. Circuit Rule 28(f), Giffin v. Summerlin, 78 F.3d 1227 (7th Cir.1996) (per curiam). We cannot allow an appellant to circumvent the adversarial process by raising new arguments in reply. To do so would be prejudicial not only to the appellee, but potentially to the appellant as well. The appellee would have no opportunity to re.spond to the new claims, and the court would be in an awkward position. We could either accept wholesale an “argument” that had never been fully briefed or argued, or we could put ourselves in the position of the appellee, doing her research and seeking out counter-arguments on her behalf. Either way, the court would be (or would seem to be) choosing sides before ever looking at the substance or the merits of an argument. Because Parrillo failed to raise his “New for Old” argument until way too late, we will say nothing about it except that it is waived.

Parrillo also appeals the district court’s disposition of his fraud claim. The essence of this claim is that it was not possible to restore the Lascia Fare for $532,-236.53; therefore Commercial Union must be involved in a conspiracy to procure fraudulent bids and underpay claims. First, we repeat that whether it was possible for Cable to restore the boat at a profit for the amount of the bid is irrelevant. Cable guaranteed that it would be restored for that amount. According to Parrillo’s own witness, Cable is a reputable boatyard with the facilities and expertise to restore the Lascia Fare. Next we turn to the facts that Parrillo relies on to support his allegations of fraud. His “evidence” consists of: the fact that Commercial Union selected Cable’s detailed guaranteed bid over Glass-Tech’s lower but open-ended bid; Commercial Union’s hiring of a lawyer before Parrillo filed his complaint; and one quotation taken entirely out of context. In deciding a case on summary judgment, the court is not required to draw every possible inference in favor of the non-movant, only all reasonable inferences. Donohoe v. Consolidated Operating & Prod. Corp., 982 F.2d 1130, 1137 (7th Cir.1992). Conclusory allegations are not enough to defeat summary judgment, Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928, 931 (7th Cir.1995), and conclusory allegations are all Parrillo has to offer.

The final claim Parrillo raisés is that he is entitled to $15,000 per week in damages for loss of use of his boat. The district court correctly pointed out that there is no recovery for loss of use of pleasure boats. The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937 (1897); Snavely v. Lang, 592 F.2d 296 (6th Cir.1979). Parrillo argues that the Lascia Fare was not strictly a pleasure boat; he chartered it out from time to time for $15,000 per week. There are a number of bars to this claim. First, he no longer owns the boat, so even if we accept as fact his claim that the boat was occasionally chartered out, he could only recover up to the date of sale. Second, the boat was inactive at the time of the fire. It had been in storage for way over a year, and was in. fact required to be in storage as a condition of coverage under the Commercial Union poliey. In order to recover for loss of use, “ ‘[t]here must be actual loss, and reasonable proof of the amount.’ In other words, there must be a loss of profits in its commercial sense.” The Conqueror, 166 U.S. at 133, 17 S.Ct. at 519. Parrillo asserts that, at some point in the future, an unspecified entity might have offered him $15,000 a week to charter the Lascia Fare, and he might have accepted. This is only speculation, not an allegation of actual loss. There is no evidence that, during the time he retained ownership of the Lascia Fare, Parrillo lost any commercial use of the boat. The district court was correct to enter summary judgment in favor of Commercial Union on the loss of use claim.

Recently, in addressing the claims of a pro se litigant, we expressed the view that “[o]ne of the real dangers in representing yourself is that you sometimes get to believe that your ease is better than it actually is.” In re CLDC Management Corp., 72 F.3d 1347, 1348 (7th Cir.1996). This case perhaps demonstrates that there may be a similar danger when an attorney-plaintiff is represented by a firm in which he is the senior partner. The decision of the district court is

Affirmed.

      . Northern District of Illinois Local Rule 12(n) states that
      [e]ach party opposing a motion filed pursuant to F.R.Civ.P. 56(e) shall serve and file (1) any opposing affidavits and other materials referred to in F.R.Civ.P. 56(e); (2) a supporting memorandum of law; and (3) a concise response to the movant’s statement that shall contain; (a) a response to each numbered paragraph in the moving party’s statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and (b) a statement, consisting of short numbered paragraphs, of any additional facts that require denial of summary judgment____ All material facts set forth in the statement of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.

      . Northern District of Illinois Local Rule 12(m) states that
      [i]f additional material facts are submitted by the opposing party pursuant to section N of this rule, the moving party may submit a concise reply in the form prescribed in section N for the response. All material facts set forth pursuant to section N(3)(b) will be deemed admitted unless controverted by the statement of the moving party.

      . Slakoff did testify that he considered the Lascia Fare a total loss. He defined that term, however, as the cost of repairing the boat plus the salvage value. This definition is far more inclusive than the definition set forth in the contract. It is interesting to note that even if we were to ignore the clearly defined terms in the policy itself in favor of the Slakoff definition, the boat would not be a constructive total loss. Adding the actual salvage value of $312,000 to the guaranteed cost of repairs, we come up with $844,236.53, precisely the amount collected by Mr. Parrillo (minus his deductible). The boat would only be a total loss under Slakoff's broader definition if the insurer were somehow required to pay more than the lowest guaranteed cost of repairs.

      . If Cable failed to restore the Lascia Fare at its guaranteed price, Parrillo knew that he would not be without recourse. As he noted in a fax to Slakoff, Parrillo “decided to sue the insurance company directly rather than risk an unhappy repair experience with Cable, against whom I would have only ordinary contract rights and not those special rights that inure to an insured."

      . This quotation was so grossly distorted we feel compehed to put it in context ourselves. Parrillo’s appellate brief charges "Commercial Union admitted that it routinely required arbitration for the purpose of coercing a claimant to ‘give up.' ” (Plaintiff's brief at 19.) (Emphasis in original.) When we turn to the deposition of Commercial Union's Kent Smith, cited in support of this alleged admission, we see that the testimony says the opposite of what Parrillo would have us believe. Parrillo's glaring misrepresentation of this testimony can only be appreciated by reading the testimony itself:
      Q: The way you administer your claims, Mr. Smith, I'm gathering from the way you answer your questions here that you offer arbitration and if it’s not accepted, you agree not to arbitrate or forget the arbitration somehow? Is that basically how you do business?
      A: The claimant may give it up. They're still entitled to do it.
      Q: But in other words, you leave it to the choice of the claimant whether or not to arbitrate?
      A: Right____

      . For example, the inference Parrillo asks us to draw — that the hiring of an attorney is an admission of wrongdoing — is an unreasonable one.

      . While he asks us to engage in this speculation, Parrillo himself testified that he planned to re-tum the Lascia Fare to active service specifically for use by his family.


author: COFFEY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stephen L. SHLATER, Defendant-Appellant.
    No. 95-1964.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 11, 1996.
    Decided June 5, 1996.

      David H. Miller, Andrew Baker (argued), Office of the U.S. Atty., Fort Wayne, IN, for plaintiff-appellee.
    Harold W. Myers, Wyss, McNellis, Riebenack & Myers, Fort Wayne, IN, Kenneth M. Waterman (argued), Fort Wayne, IN, for defendant-appellant.
    Before ESCHBACH, COFFEY and EVANS, Circuit Judges.
   COFFEY, Circuit Judge.

On December 15, 1993, a federal grand jury indicted Stephen L. Shlater for extortion, in violation of 18 U.S.C. § 1951. Shlater entered a plea of not guilty and was found guilty of the crime charged before a jury. On April 13, 1995, the district court sentenced Shlater to 48 months’ imprisonment to be followed by three years of supervised release and 150 hours of community service. The court also imposed a $50 special assessment fee and mandated mental health counseling. Shlater appeals his conviction and sentence. We Affirm.

I. BACKGROUND

On November 20, 1993, employees at Scott’s Food Store in the Pine Valley Shopping Mall of Fort Wayne, Indiana received a typewritten extortion note. The note contained a threat to detonate explosive devices planted at other Scott’s stores unless $150,-000 was delivered to the extortionists. The note instructed that two employees of Scott’s Food Stores must bring $150,000 to a local gas station at 9 PM that evening and wait at a designated pay phone there for further instructions. The employees notified the Allen County Police Department. The store was evacuated and several managers and employees were placed in protective custody at a nearby hotel.

An undercover police team (consisting of a male and female officer, Nicholas Litwinko and Michele Waldron, posing as the store manager and female employee required by the note) arrived at the gas station in an unmarked van at 9 PM, the time specified in the note, and waited at the designated pay phone. A third officer, Brian Gore, hid covertly in the van. The officers carried a duffel bag stuffed with Scott’s coupons to represent the money. The undercover officers received a call at the pay phone; the caller instructed them to proceed to another pay phone where they would find a written note. The officers followed the caller’s instructions and found the note, directing them to another note located in a local state park, which led them in turn to a secluded lane in the woods where they were supposed to drop off the money.

Officer Waldron dropped off the duffel bag at the specified location, while Officer Gore slipped out of the vehicle and concealed himself nearby. Waldron and Litwinko drove off in the van; thirty seconds later an individual dressed in army fatigues and a face mask emerged from the woods and picked up the duffel bag. Announcing that he was a police officer, Officer Gore stepped forward from his hiding place and confronted the individual who immediately dropped the bag and raised his hands in the air and said: “Don’t hurt me. They’re making me do this.”

Officer Gore instructed the individual, who turned out to be Stephen Shlater, the defendant, to lie prone on the ground. Shlater complied. As Officer Gore handcuffed him, the defendant repeatedly stated that “they’re making me do this.” Shlater then explained to Officer Gore that a letter in the dresser drawer of his bedroom could prove his innocence and invited the officer to search his home and find it. Officer Gore called his depot for back-up units, and they arrived shortly thereafter.

The officers took Shlater in custody and conveyed him to the local police station. From this point on, all interactions between the police and Shlater were recorded on videotape. The police removed Shlater’s handcuffs and confirmed his identification and home address. Before asking Shlater any questions regarding the events of the evening, Officer Roy Stevens inquired of Shlater whether he understood English and was literate. The officer then explained to Shlater his constitutional rights, including the right to remain silent and the right to have a lawyer present while being interviewed or to terminate the interview at any time. Shlater read over a form describing these rights and signed it, expressing that he understood his rights. At this time, Shlater stated that he wished to consult with an attorney before answering any further questions. The officers stopped interrogating Shlater about the events of the evening.

The officers then reminded Shlater of his previous requests of Officer Gore, inviting the police to search his home and find the exculpatory note. At that point, the defendant immediately told the officers, “That’s no problem whatsoever,” but warned the officers to take care of his dog that was locked in the garage. However, before allowing Shlater to consent to the search, Officer Stevens made sure that Shlater understood his constitutional rights. He explained to Shlater that the police could not search his home without a search warrant unless Shlater consented to the search. He also explained to Shlater that he had the right to refuse to consent to the search and had the right to consult with an attorney before granting the officers consent to search. Shlater stated that he understood his rights and voluntarily consented to the search of his home, repeating that “I don’t have any problem with searching it.” Shlater also signed a written form, confirming that his consent was freely given and authorizing the police to remove any items of evidence that the officers deemed relevant to the investigation. Furthermore, while at the police station, Shlater asked the officers to unplug his coffee pot which he had accidently left on that evening, further reflecting Shlater’s voluntary consent (or even encouragement) to the search.

Shlater willingly accompanied the police officers to his home where they conducted a search of his dwelling in his presence. At no time did the defendant object to the officers’ presence or to the search. The officers took a number of items from the house, including a typewriter, the coercive letter the defendant told them he had received, and a crumpled draft of a note similar to that found at Scott’s Food Stores that evening.

On December 15, 1994, a federal grand jury indicted Shlater for extortion in violation of 18 U.S.C. § 1951. On December 21, Shlater’s attorney filed a motion for judicial determination of the defendant’s mental competency to stand trial, pursuant to 18 U.S.C. § 4241. The district court granted the motion and deferred Shlater’s arraignment pending the results of a psychiatric examination. Dr. Jay Fawver, a local psychiatrist, performed the examination and submitted a sealed report to the court. After a hearing in March 1994, the district court determined that Shlater was mentally competent to stand trial. Shlater was then arraigned and filed a plea of not guilty, informing the court and the government that he intended to rely upon the defense of insanity.

The government filed a motion for a pretrial psychiatric examination pursuant to 18 U.S.C. § 4242, which was granted by the district court. In September 1994, Shlater was transferred to Federal Correctional Institution at Butner, North Carolina for evaluation by federal psychiatrists. In October 1994, Shlater filed a motion to suppress the evidence found at Shlater’s home. After an evidentiary hearing in December 1994, the district court denied Shlater’s suppression motion, ruling that Shlater had voluntarily consented to the search of his home. A jury trial commenced in January of 1995.

At trial, Shlater entered a plea of not guilty by reason of insanity. To that end, Shlater’s father and brother testified that Shlater had acted strangely at Thanksgiving three weeks before the extortion incident, appearing preoccupied and talking to himself. Dr. Larry M. Davis, a psychiatrist, testified on behalf of Shlater as an expert witness under Federal Rule of Evidence 702. Dr. Davis stated that in his opinion Shlater, on the date of the extortion, was suffering from a “severe” delusional disorder that affected his ability to distinguish right from wrong.

Shlater also sought to admit the testimony of a second psychiatrist, Dr. Fawver. The trial court held a hearing outside the presence of the jury to determine the admissibility of Dr. Fawver’s testimony. During the hearing, Dr. Fawver testified that Shlater suffered from a “mild to moderate” delusional disorder and had some paranoid personality traits. Dr. Fawver went on to state that Shlater “very much understood what he was doing at the time was wrong, so by definition he wasn’t insane as I understand it as a psychiatrist.” The trial judge excluded Dr. Fawver’s testimony on the grounds that it was immaterial to Shlater’s defense of insanity because the statutory definition of insanity required a “severe” mental condition that affects the individual’s capacity to distinguish right from wrong; Dr. Fawver, however, testified that the defendant suffered only a mild to moderate mental disorder and was capable of distinguishing right from wrong.

Edward Landis, a clinical psychologist, testified for the government. Landis examined Shlater at the Federal Correctional Institution in Butner, North Carolina. Landis stated that in his belief, Shlater did not suffer from a psychological illness or delusional disorder. Dr. Ralph Newman, staff psychiatrist at the Federal Correctional Institution, also testified that he personally evaluated Shlater and determined that Shlater was not suffering from a mental disorder.

The jury rejected the defendant’s plea of not guilty by reason of insanity and found him guilty as charged.

II. DISCUSSION

A. Seizure of the Letter

Shlater argues that the district court erred in denying his motion to suppress the evidence discovered by the police in his home. According to Shlater, the police obtained his consent to search after he had affirmatively requested an attorney pursuant to his Fifth Amendment rights under Miranda. The district court, relying on the videotape as well as the testimony of the officers at the scene, ruled that Shlater’s consent to the search of his home was voluntarily and freely given and did not violate any of Shlater’s constitutional rights.

“Consent searches are valid only if the consent was freely and voluntarily given. The question of whether a consent was voluntary, as opposed to the product of duress or coercion, is a question of fact from the totality of the circumstances.” United States v. Duran, 957 F.2d 499, 502 (7th Cir.1992). “We will not reverse a district court’s finding on this issue unless clearly erroneous.” Id.

In Miranda v. Arizona, the Supreme Court held that before the police can initiate custodial interrogation of a defendant, they must advise the defendant of certain rights, including but not limited to the right to remain silent and the right to counsel. Once an accused asks to be represented by counsel he “is not subject to further interrogation by the authorities until counsel has been made available to him....” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) (emphasis added). However, Miranda only applies to the “custodial interrogation” of a defendant. In Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980), the Supreme Court defined “interrogation” to include “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.”

Shlater argues that the police request to search was reasonably likely to elicit an incriminating response because the police believed incriminating evidence could be found at Shlater’s home. We disagree. First, the defendant told the police at the time of his apprehension that he had been coerced by others and that a letter in his dresser drawer at home would exonerate him. Brian Gore, the arresting officer, testified that Shlater repeated to him several times at the scene of his arrest that “they made me do it” and told him of the specific location where the evidence of the “others” could be found. Second and more importantly, we have held that a consent to search is not an interrogation within the meaning of Miranda. United States v. Saadeh, 61 F.3d 510, 515 (7th Cir.1995); see also United States v. Smith, 3 F.3d 1088, 1098 (7th Cir.1993) (‘We have held that a consent to search is not a self-incriminating statement, and therefore, a request to search does not amount to interrogation. This view comports with the view taken by every court of appeals to have addressed the issue.”). Thus we hold that the consent to search was not a custodial interrogation triggering the previously invoked Miranda right to counsel.

Shlater accompanied the police to his home and at no time did he make any objection to the search. Indeed, it is clear from the videotape that the defendant specifically understood that he had a right to consult counsel concerning the search of his home, but he waived that right (both orally and in writing) and consented to the search. Even though Shlater stated that he wished to have counsel present for any interrogation regarding the specific events of the evening, the law provides that a request for counsel during the interrogation does not apply to the subsequent request for a consent to search. United States v. LaGrone, 43 F.3d 332, 336 (7th Cir.1994) (“[t]he Supreme Court has held that a defendant’s invocation of his right to counsel for one purpose is not automatically an invocation of his right to counsel for other purposes.”) (citing McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). Having had his right to counsel concerning the search of his home explained to him, the record makes clear that the defendant waived that right and encouraged the police to search his home. See United States v. Baker, 78 F.3d 1241, 1245 (7th Cir.1996) (noting that a consent to search is voluntary and constitutional even where a defendant is not told of his right to counsel).

B. Exclusion of Psychiatrist’s Testimony

The defendant contends that the district court abused its discretion in excluding the testimony of Dr. Fawver. According to Shlater, Dr. Fawver’s proffered testimony that the defendant Shlater suffered from a mild to moderate delusional disorder was relevant to the issue of the defendant’s insanity.

Rule 702 of the Federal Rules of Evidence provides, with emphasis added:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

However, not all expert testimony is admissible; the evidence must be relevant to a fact in issue, and the district court retains the discretion to make that determination. United States v. Sinclair, 74 F.3d 753, 758 (7th Cir.1996); United States v. Anderson, 61 F.3d 1290, 1297 (7th Cir.1995). This rule applies to the relevance of expert testimony concerning a defendant’s sanity. United States v. Davis, 772 F.2d 1339, 1344 (7th Cir.1985).

“An appellate reversal of a decision to limit an expert’s testimony requires more than bare arguments that the expert is qualified and his testimony is relevant. Indeed the abuse of discretion standard requires the challenging party to show that ‘no reasonable person would have agreed with the district court[’s ruling].’ ” Matter of Sheridan, 57 F.3d 627, 635 (7th Cir.1995) (quoting Holmes v. Elgin, Joliet & Eastern R. Co., 18 F.3d 1393, 1397 (7th Cir.1994)).

We have described the issue of insanity as follows:

Insanity, for our purposes, is a legal term. We do not ask whether [the defendant] is insane by psychiatric or psychological standards. Rather we ask only whether [the defendant] has established insanity as defined by the Legal Insanity Defense Reform Act (the “Act”). 18 U.S.C. § 17. Under that Act, [the defendant] can establish the affirmative defense of legal insanity only if he proves two facts by clear and convincing evidence. 18 U.S.C. § 17. First, [the defendant] must prove that he suffered from a severe mental disease or defect. Proof that he had a mental disorder is not enough. The Act requires that the mental disorder be severe. United States v. Salava, 978 F.2d 320, 322 (7th Cir.1992). Second, if [the defendant] proves this first element, the Act requires that he prove that his severe mental disorder rendered him unable at the time of the crime to appreciate the nature and quality or the wrongfulness of his acts. Id.

United States v. Reed, 997 F.2d 332, 334 (7th Cir.1993).

In Shlater’s case, the fact in issue was whether the defendant, at the time of the extortion incident, suffered from a severe mental disorder that affected his ability to distinguish right from wrong. Dr. Fawver testified that Shlater suffered a mild to moderate personality disorder. The district court excluded the testimony because the federal statute and caselaw defining insanity require that a defendant suffer from a “severe” mental disorder. The court concluded that it “would not permit a medical opinion ... that didn’t fall within the parameters of the statute.” Although Dr. Fawver’s testimony that Shlater suffered a mild to moderate mental disorder was relevant in a general sense to the defendant’s mental state, the Legal Insanity Defense Reform Act is clear that the defense of insanity requires that the defendant suffer a “severe” mental disorder. See Reed, 997 F.2d at 334. Had Dr. Fawver testified, his testimony would have served to confuse the jury as to the requisite mental state of severe mental disorder required under the federal statute for criminal insanity. The trial judge did allow the defendant to present a psychiatrist, Dr. Davis, who testified that Shlater had a severe mental disorder; thus, the trial judge did not clearly abuse his discretion in excluding the testimony of Dr. Fawver.

C. Sentencing

The district court calculated Shlater’s guideline imprisonment range to be 41 to 51 months. The judge sentenced Shlater to 48 months’ imprisonment. Shlater now argues that the sentencing court erred in failing to depart downwards from the guideline range to account for Shlater’s exemplary military and employment record.

We have held that under guidelines section 5H1.6, “a district court may depart from an applicable guidelines range once it finds that a defendant’s family ties and responsibilities or community ties are so unusual that they may be characterized as extraordinary.” United States v. Canoy, 38 F.3d 893, 906 (7th Cir.1994). A major in the Indiana National Guard Reserves, Shlater argues that his twenty-five year military record and twenty-eight year employment record are extraordinary, warranting departure.

By statutory command our review of sentencing is limited to cases in which a sentence was (1) “imposed in violation of law,” (2) “imposed as a result of an incorrect application of the sentencing guidelines,” (3) “outside the applicable guideline range,” or (4) “unreasonable.” 18 U.S.C. § 3742(e), (f); United States v. Prevatte, 66 F.3d 840, 843 (7th Cir.1995). As a consequence, “we lack jurisdiction to review a district court’s discretionary rejection of a downward departure from a sentence within the applicable guideline range.” United States v. Yahne, 64 F.3d 1091, 1094 (7th Cir.1995). See United States v. Blackwell, 49 F.3d 1232, 1241 (7th Cir.1995); United States v. Burrows, 48 F.3d 1011, 1019 (7th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2632, 132 L.Ed.2d 872 (1995). “However, if the district court’s denial of a downward departure is based on a conclusion that it lacked authority to depart, that decision is a legal conclusion over which we have appellate jurisdiction.” Yahne, 64 F.3d at 1094 (citing Canoy, 38 F.3d at 903).

In Shlater’s case, his sentence was within the applicable guideline range. Thus, we are without jurisdiction to review Shlater’s sentence. See United States v. Solis, 923 F.2d 548, 551 (7th Cir.1991).

III. CONCLUSION

The conviction and sentence of Stephen Shlater are

Affirmed.

      . The note, in its entirety, reads:
      Scotts,
      Three explosive devices have been located at various locations of your employees or relatives of your upper management. These are not necessarily employees from this store. We picked different stores in your operational area. We want 150,000 in 50’s, 20’s, and 10’s. You will have the manager of this store and one of his female employees deliver the money to us in a large gym bag. They need to be at the Speedway gas station, located at Dupont and 1-69 by 9:00 pm tonite. They will wait at the outside phone for further instructions. Now, we have photographed your employees, so no tricks. They will be observed during different points of the delivery. We insure that no harm will come to them as long as instructions are followed. Make sure that they have a flashlight so that they can find materials along the way. Now, Mr. Wright, we hope that you understand that any attempts by you to prevent the payment, will result in certain loss of life. This is not a threat, its [sic] a promise. Just simply follow instructions, and we guarantee no one will be hurt. We have also prepared statements to the news media, in case you decide to do something stupid. We are very well armed in case of intervention by the authorities. Please understand that we will detonate, and use you as a future example if we have to. After the money is delivered we will remove the explosive devices, if no attempts are made to obstruct us. Remember have your people wait at the phone until we contact them. Make sure they do not have any communication devices in [the] vehicle.

      . A copy of the videotape is part of the record on appeal.

      . An FBI laboratory determined that the typewriter used to type the extortion note delivered to Scott’s was identical to the typewriter used to type the threatening letter allegedly received by Shlater. Shlater's allegedly threatening letter provides:
      Mr. Shlater, We need you to collect something for us. You will do what we request or we will cause harm to your son’s family on Thaxton Street. Be at the public phone located at Marathon Station at Dupont and Leo Road at 6:00 p.m. tonite. We will give you your instructions at that time. Do anything stupid and you put your family in great danger.

      .Title 18 U.S.C. § 17(a) provides, with emphasis added:
      It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

      . Dr. Fawver was originally appointed by the district court to examine Shlater in order to determine whether he was mentally competent to stand trial.

      . For purposes of the insanity defense, the defendant's mental condition may be evaluated by either psychiatric or psychological examination. See 18 U.S.C. § 4242(a).