7th Circuit reverses conviction handed down by Posner

In overturning the conviction of a Mongolian immigrant on the basis that the term “corrupt” should have been included in the jury instructions, a 7^th Circuit Court of Appeals panels upended the outcome of a trial in which their colleague Richard Posner was the judge.

Enkhchimeg Ulziibayer “Eni” Edwards was charged with two counts of witness tampering and two counts of making false statement on an official questionnaire for federal employment. The charges stem from a marriage Edwards is believed to have arranged so her cousin, Tsansanchimeg Erdenekhuu, known as Tsasa, could remain in the United States.

Several years after the marriage ended in divorce, the federal government began investigating. The agents then had the former husband call Edwards twice to discuss the investigation. During the conversations, Edwards advised him to tell the government the marriage did not work and the couple decided to divorce. At no point did she say the marriage was a lie.

At trial, Edwards testified she did not intend to pressure the former husband into lying. However, under cross-examination, she did admit she asked her co-worker to get married so her cousin could become a legal resident. After a trial in the U.S. District Court for the Northern District of Illinois, Eastern Division, of which Posner was the presiding judge sitting by designation, Edwards was convicted on all four counts.

On appeal, Edwards challenged the jury instructions for the witness tampering charges, arguing the instructions did not include or define the term “corruptly,” which is an element of the charges. Posner has rejected the proposed instructions, saying they contained too much legal jargon and “no one knows what ‘corruptly’ means.”

Posner’s final instructions required the jury to find Edwards intentionally sought to interfere with the federal investigation but the instructions did not require the jury find that Edwards acted corruptly. The 7^th Circuit noted pattern instructions not intended to be blindly followed. But while judges routinely tailor the language to the particular case, here the tailoring failed to convey the requisite consciousness of wrongdoing.

“Whatever the contours of the corrupt persuasion element, however, the error here was that the jury instructions did not say anything about the wrongfulness at all: no reference to improper purpose, no requirement of deception, and no mention of conscious wrongdoing,” Judge David Hamilton wrote for the court. “The instructions left the door open for the jury to convict Edwards on the basis of innocence rather than corrupt persuasion.”

The appellate panel noted Posner was skeptical about the strength of the government’s evidence and whether the case merited criminal prosecution. After the verdict, he imposed a below-guideline sentence of two years of probation and a $2,000 fine.

In United States of America v. Enkhchimeg Ulziibayar “Eni” Edwards, 16-2253, the 7^th Circuit overturned her conviction for witness tampering and remanded for a possible new trial. The appellate judges affirmed her conviction for making false statements but vacated her sentence on all counts and remanded for resentencing.