United States of America v. C. Gregory Turner

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1175
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
C. G REGORY T URNER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division
No. 13 CR 572 — Elaine E. Bucklo, Judge.
____________________
A RGUED OCTOBER 26, 2015 — D ECIDED SEPTEMBER 9, 2016
____________________
Before KANNE , R OVNER , and SYKES, Circuit Judges.
KANNE , Circuit Judge. Defendant Gregory Turner was
convicted of willfully conspiring, with Prince Asiel Ben Isra-
el, to provide services for Zimbabwean Special Designated
Nationals (“SDNs”), a group of government officials and re-
lated individuals deemed to be blocking the democratic pro-
cesses or institutions of Zimbabwe.

-- 1 of 31 --

2 No. 15-1175
On appeal, Turner raises several challenges against his
pre-trial and trial proceedings. First, he argues that the dis-
trict court erred in admitting into evidence a document de-
tailing his agreement to provide services for the Zimbabwe-
an SDNs, called the “Consulting Agreement.” Second, he
contends that the district court erred in its instructions to the
jury. Third, Turner argues that the district court erred in its
interactions with the jury after deliberations had begun. We
affirm.
Before turning to the case, we note that Turner also
claims that the evidence obtained pursuant to the Foreign
Intelligence Surveillance Act (“FISA”) should have been
suppressed. (Appellant Br. 35–39.) We have reviewed the
classified materials and find that the investigation did not
violate FISA. We shall issue a separate, classified opinion
explaining this conclusion. See United States v. Daoud, 755
F.3d 479, 485 (7th Cir. 2014), supplemented, 761 F.3d 678 (7th
Cir. 2014).
I. BACKGROUND
We begin with a brief synopsis of the relevant legal
framework for Turner’s case, including the statutes, execu-
tive orders, and regulations underlying the Zimbabwe sanc-
tions. Then, we summarize the pertinent factual background
and procedural history.
A. Legal Framework of Zimbabwe Sanctions
In 1977, Congress enacted the International Emergency
Economic Powers Act (“IEEPA”), Pub. L. 95-223 (codified at
50 U.S.C. §§ 1701–07), which empowered the President to
declare a “national emergency” during peace time “to deal
with any unusual and extraordinary threat, which has its

-- 2 of 31 --

No. 15-1175 3
source in whole or substantial part outside the United States,
to the national security, foreign policy, or economy of the
United States.” 50 U.S.C. § 1701(a). To counter this threat, the
IEEPA broadly authorized the President to:
[I]investigate, block during the pendency of an in-
vestigation, regulate, direct and compel, nullify,
void, prevent or prohibit, any acquisition, holding,
withholding, use, transfer, withdrawal, transporta-
tion, importation or exportation of, or dealing in, or
exercising any right, power, or privilege with re-
spect to, or transactions involving, any property in
which any foreign country or a national thereof has
any interest by any person, or with respect to any
property, subject to the jurisdiction of the United
States.
Id. § 1702(1)(B). Additionally, violations of “any license, or-
der, regulation, or prohibition” issued pursuant to the
IEEPA are unlawful and carry civil and criminal penalties.
Id. § 1705.
In March 2003, President George W. Bush invoked the
IEEPA to issue Executive Order 13288, titled “Blocking
Property of Persons Undermining Democratic Processes or
Institutions in Zimbabwe.” 68 Fed. Reg. 11457 (Mar. 6, 2003).
This order declared a “national emergency” in response to
“an unusual and extraordinary threat to the foreign policy of
the United States” arising from the actions and policies of
certain Zimbabwean government officials that were “un-
dermin[ing] Zimbabwe’s democratic processes or institu-
tions, contributing to the deliberate breakdown in the rule of
law in Zimbabwe, to politically motivated violence and in-
timidation in that country, and to political and economic in-
stability in the Southern African region.” Id.

-- 3 of 31 --

4 No. 15-1175
To counter this threat, Executive Order 13288 prohibited
“[a]ny transaction or dealing by a United States person or
within the United States in property or interests in property”
belonging to any of the special designated nationals
(“SDNs”) listed in the Annex. Id. Prohibited transactions or
dealings include “the making or receiving of any contribu-
tion of funds, goods, or services to or for the benefit of any
person listed in the Annex.” Id. The order also prohibited
“any conspiracy formed to violate the prohibitions.” Id.
Among the seventy-seven persons listed in the Annex
were Robert Gabriel Mugabe, the President; Simon Khaya
Moyo, the former Deputy-Secretary for Legal Affairs (and
current Ambassador to South Africa); Emmerson Mnangag-
wa, the Parliamentary Speaker; and Samuel Mumbengegwi,
the former Minister of Industry and International Trade (and
current Foreign Minister). Id. In November 2005, President
Bush issued Executive Order 13391, which reiterated the
prohibitions described in Executive Order 13288 but also
took “additional steps,” such as expanding the list of SDNs
to include Gideon Gono, Governor of the Federal Reserve
Bank. See 70 Fed. Reg. 71201 (Nov 22, 2005). Both executive
orders remain in effect.
To effectuate these executive orders, the Department of
Treasury’s Office of Foreign Asset Control (“OFAC”) enact-
ed several regulations, commonly referred to as the “sanc-
tions” against the Zimbabwean SDNs. 31 C.F.R. § 541.101 et
seq. Under 31 C.F.R. § 541.201(a)(1), property located within
the United States belonging to Zimbabwean SDNs is deemed
“blocked and may not be transferred, paid, exported, with-
drawn, or otherwise dealt in.” Under 31 C.F.R. § 541.405, the
prohibited dealings with SDNs include “legal, accounting,

-- 4 of 31 --

No. 15-1175 5
financial, brokering, freight forwarding, transportation, pub-
lic relations, or other services” and extend “to services per-
formed in the United States or by U.S. persons, wherever lo-
cated.” Pursuant to 31 C.F.R. § 541.204(b), “[a]ny conspiracy
formed to violate any of the prohibitions set forth in this part
is prohibited.” However, U.S. persons may apply for a li-
cense from OFAC that, if granted, would permit them “to
engage in any transactions prohibited,” such as providing
services to SDNs, without violating these sanctions. 31 C.F.R.
§ 501.801(b).
B. Factual Background and Procedural History
From November 2008 until April 2010, Turner conspired
with Ben Israel to provide services to, or on behalf of, Zim-
babwean SDNs, without a license from the United States
Treasury Department. Specifically, Turner and Ben Israel
agreed to provide public relations services—lobbying U.S.
officials to remove the sanctions, arranging for Zimbabwean
officials to meet with U.S. officials to discuss the removal of
sanctions, and assisting Zimbabwean officials in obtaining
travel visas to the United States, to meet with U.S. officials to
discuss removing the sanctions. Turner and Ben Israel were
promised payment of $3,405,000 for their work.
On August 27, 2013, a grand jury returned an indictment
against Turner, charging the following: (1) Count One al-
leged conspiring to act in the United States as an agent of a
foreign government without prior notification to the Attor-
ney General, in violation of 18 U.S.C. §§ 371 and 951(a); (2)
Count Two alleged acting in the United States as an agent of
a foreign government without prior notification to the At-
torney General, in violation of 18 U.S.C. § 951(a); and (3)
Count Three alleged willfully conspiring to provide services

-- 5 of 31 --

6 No. 15-1175
on behalf of, or for the benefit of, Zimbabwean SDNs, in vio-
lation of IEEPA, 50 U.S.C. § 1705(c), and 31 C.F.R. §§ 541.201,
541.204, and 541.405.1
A jury trial against Turner began on September 29, 2014.
During trial, the government presented evidence of Turner’s
and Ben Israel’s agreement with Zimbabwean SDNs to pro-
vide lobbying services in exchange for $3,405,000. One key
piece of evidence was the Consulting Agreement, a docu-
ment which contained details of the arrangement and a dis-
tinctive four-installment payment structure keyed to specific
events: (1) $90,000 upon signing of the contract, (2)
$1,105,000 upon completion of a meeting in Zimbabwe, (3)
$1,105,000 upon completion of a meeting in South Africa,
and (4) $1,105,000 upon completion of this project. The gov-
ernment then presented evidence tying the Consulting
Agreement to corresponding actions by Turner, Ben Israel,
and the Zimbabwean SDNs.
Additionally, the government presented evidence of
Turner’s and Ben Israel’s efforts to facilitate meetings and
correspondence between U.S. officials and Zimbabwean
SDNs. The government also established that Turner never
applied for or received a license from the U.S. Treasury De-
partment to permit him to provide services to, or on behalf
of, Zimbabwean SDNs.
On October 10, 2014, the jury acquitted Turner on Counts
One and Two and convicted him on Count Three. The dis-
1 The August 27, 2013, indictment includes four counts, but only Counts
One, Two, and Four pertain to Turner. R. 38. Therefore, Count Four as
listed in the indictment is what is referred to as “Count Three” in
Turner’s case, for the purposes of his indictment, trial, and appeal.

-- 6 of 31 --

No. 15-1175 7
trict court held Turner’s sentencing hearing on January 20,
2015. The district court determined that Turner’s advisory
guidelines range was 14 to 21 months, based on an offense
level of 14 and a criminal history category of I. Subsequently,
the district court sentenced Turner to a within-guidelines
range sentence of 15 months’ imprisonment and one year of
supervised release. Judgment was entered against Turner on
January 21, 2015. Turner appealed.
II. A NALYSIS
On appeal, Turner raises several challenges to his pre-
trial and trial proceedings. When necessary, we provide ad-
ditional factual background in order to fully address each
claim.
First, Turner argues that the district court erred in admit-
ting the Consulting Agreement into evidence as an authenti-
cated coconspirator statement. Second, Turner contends that
the district court erred in its instructions to the jury for
Count Three, specifically contesting the court’s definition of
“willfulness,” its decision not to require unanimity with re-
gard to specific SDNs, and its inclusion of SDN Mumbeng-
egwi. Third, Turner argues that the district judge erred in
her interactions with the jury after deliberations had begun,
specifically disputing the district judge’s replacement of ju-
ror Chism and her ex parte communications with the jury.
A. Consulting Agreement
We begin by examining Turner’s challenge to the district
court’s admission of the Consulting Agreement into evi-
dence as a properly authenticated coconspirator statement,
pursuant to Federal Rules of Evidence 901 and 801(d)(2)(E).

-- 7 of 31 --

8 No. 15-1175
On August 29, 2014, the government and Turner moved
in limine to admit and to bar, respectively, the Consulting
Agreement—the document that the government argues out-
lined Turner and Ben Israel’s agreement with officials to re-
ceive $3,405,000 for their services.
The district court, on September 22, 2014, provisionally
granted the government’s motion “on the assumption that it
will introduce evidence at trial sufficient to support the fac-
tual assertions made in its motion.” (R. 176 at 1–2.) The criti-
cal facts included the following: “that (1) Ben Israel and
Turner acted in accordance with the Consulting Agreement’s
distinctive payment structure and (2) Ben Israel, or someone
acting on his behalf, sent the Consulting agreement to [a Na-
tional City Bank employee] to explain the purpose of the in-
coming wire from [Monica] Mutsvangwa.” (Id. at 14.) The
district court assessed that, assuming the government intro-
duced evidence establishing these facts, the Consulting
Agreement was admissible as an authenticated coconspira-
tor statement. (Id. at 14–15)
Then, during trial, the government presented evidence
for these factual assertions and moved to admit the Consult-
ing Agreement into evidence as a coconspirator statement.
(Trial Tr. 57, Oct. 1, 2014.) Turner responded: “No objection.”
(Id.)
On appeal, Turner argues that the district court erred in
admitting the Consulting Agreement as a properly authenti-
cated coconspirator statement, pursuant to Federal Rules of
Evidence 901 and 801(d)(2)(E). Specifically, he contends that
the Consulting Agreement was hearsay and that it was not
properly authenticated because the government presented
insufficient evidence that Ben Israel was the declarant and

-- 8 of 31 --

No. 15-1175 9
that the Zimbabwe meeting took place in accordance with
the agreement’s payment structure. We disagree.
This court reviews a district court’s interpretation of the
Federal Rules of Evidence de novo but the district court’s de-
cision to admit evidence for abuse of discretion. United States
v. Mendiola, 707 F.3d 735, 738 (7th Cir. 2013). In Turner’s
case, the district court did not have to interpret the Federal
Rules of Evidence; it merely determined whether the Con-
sulting Agreement met the requirements for Rules 901 and
801(d)(2)(E). Accordingly, we review the district court’s ad-
mission of the Consulting Agreement for an abuse of discre-
tion.
Federal Rule of Evidence 901(a) provides that “[t]o satisfy
the requirement of authenticating … an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” The
authentication requirement can be fulfilled in a variety of
ways, including by evaluating “[t]he appearance, contents,
substance, internal patterns, or other distinctive characteris-
tics of the item, taken together with all the circumstances.”
Fed. R. Evid. 901(b)(4); see also United States v. Fluker, 698
F.3d 988, 999 (7th Cir. 2012). “Only a prima facie showing of
genuineness is required; the task of deciding the evidence’s
true authenticity and probative value is left to the jury.”
Fluker, 698 F.3d at 999.
This court has upheld the authentication of document ev-
idence under Rule 901(b)(4) where the declarant’s specific
identity was unknown but the content, other distinctive
characteristics, and circumstances support that the declarant
was a coconspirator. See, e.g., United States v. Mokol, 957 F.2d
1410, 1420 (7th Cir. 1992) (holding that handwritten bribe

-- 9 of 31 --

10 No. 15-1175
sheets found in the defendant’s home containing dates,
names, initials, and amounts corroborated by other evidence
were properly authenticated under Rule 901(b)(4), despite an
unknown author). In United States v. De Gudino, 722 F.2d
1351, 1355–56 (7th Cir. 1984), in affirming an alien-
smuggling conviction, this court held that lists of smuggled
aliens were properly authenticated under Rule 901(b)(4),
even though the lists’ author was unknown. The De Gudino
court held that there was “prima facie evidence of … authen-
ticity” based on the testimony outlining the conspiracy’s
smuggling techniques, the fact that the lists were seized
from the “headquarters of the [illegal alien smuggling] oper-
ation,” and the contents of the lists, which included “names
of smuggled aliens and their sponsors, dates, telephone
numbers, dollar figures, and records of payment.” Id.
Similar to De Gudino, here, the district court did not
abuse its discretion in finding that the Consulting Agree-
ment was properly authenticated under Rule 901(b)(4), de-
spite uncertainty regarding the identity of the declarant,
based on its content detailing the distinctive payment struc-
ture and the circumstances surrounding its receipt.
First, the district court found, based on the government’s
anticipated evidence (which was presented at trial), that Ben
Israel and Turner acted in accordance with the Consulting
Agreement’s distinctive structure. The court noted “the Con-
sulting Agreement’s distinctive payment structure,” which
called for four payments keyed to specific events: (1) $90,000
upon signing of this contract, (2) $1,105,000 upon completion
of a meeting in Zimbabwe, (3) $1,105,000 upon completion of
a meeting in South Africa, and (4) $1,105,000 upon comple-
tion of this project. (R. 176 at 3, 10.) The court observed, that

-- 10 of 31 --

No. 15-1175 11
this payment structure had a “high degree of correspond-
ence” with Ben Israel’s and Turner’s actions, including their
attempts to receive the $90,000 initial payment, their activi-
ties to arrange a South Africa meeting and “phase three visit
to Zimbabwe,” and their ongoing efforts to be paid by Zim-
babwean officials. (Id. at 10–11.)
Next, the district court determined, again based on the
government’s anticipated evidence (which was presented at
trial), that Ben Israel or a coconspirator sent the Consulting
Agreement to a bank employee to explain the incoming wire
from Monica Mutsvangwa. (Id. at 12–15.) It found that in re-
sponse to a request from Ben Israel’s bank for documenta-
tion to explain the incoming wire from Mutsvangwa’s ac-
count, the Consulting Agreement was sent the next business
day in an email from the account “princeasiel@aol.com,”
which was used by Ben Israel. (Id. at 13–14.)
Taken together, the district court’s assessments relating
to the Consulting Agreement’s distinctive characteristics and
receipt in connection with a coconspirator are more than suf-
ficient to constitute “prima facie evidence of … authentici-
ty,” despite uncertainty surrounding the specific declarant.
De Gudino, 722 F.2d at 1355. This is all that is required under
Rule 901(b)(4). Fluker, 698 F.3d at 999.
In addition, Turner asserts that the Consulting Agree-
ment was inadmissible hearsay. Because the Consulting
Agreement was a coconspirator statement, we hold that it
was properly admitted as non-hearsay, pursuant to Rule
801(d)(2)(E).
Federal Rule of Evidence 801(d)(2)(E) provides that “a
statement … is not hearsay” if it “is offered against an op-

-- 11 of 31 --

12 No. 15-1175
posing party and … was made by the party’s coconspirator
during and in furtherance of the conspiracy.” A statement is
admissible under Rule 801(d)(2)(E) “if the government
proves by a preponderance of the evidence that (1) a con-
spiracy existed; (2) the defendant and the declarant were
members of the conspiracy; and (3) the statement was made
during the course and in furtherance of the conspiracy.”
United States v. Cruz-Rea, 626 F.3d 929, 937 (7th Cir. 2010).
In this case, the facts establishing the Consulting Agree-
ment’s authenticity under Rule 901(b)(4) also satisfy Rule
801(d)(2)(E). See De Gudino, 722 F.2d at 1356 (“The contents
of the [authenticated documents] also establish the [authen-
ticated documents] as co-conspirator statements admissible
under rule 801(d)(2)(E) of the Federal Rules of Evidence.”).
As discussed, the government provided evidence, based on
the Consulting Agreement’s distinctive characteristics and
the circumstances surrounding its transmission, that the
Consulting Agreement’s declarant was a coconspirator who
shared the document to help achieve payment for lobbying
services, a goal of the conspiracy. Moreover, Turner’s argu-
ment about the uncertain identity of the Consulting Agree-
ment’s declarant also fails in the context of Rule 801(d)(2)(E).
This court has explicitly held that it is “wrong to suggest that
it is necessary to know the precise identity of a coconspirator
before statements can be admitted under Rule 801(d)(2)(E).”
United States v. Smith, 223 F.3d 554, 570 (7th Cir. 2000).
Hence, the district court did not abuse its discretion in ad-
mitting the authenticated Consulting Agreement as a cocon-
spirator statement under Rule 801(d)(2)(E).

-- 12 of 31 --

No. 15-1175 13
B. Instructions to the Jury
Next, Turner contests the district court’s jury instructions
for Count Three on three grounds. First, he argues that the
court erred in its definition of “willfully” or “willfulness.”
Second, Turner contends that the court erred by not requir-
ing jury unanimity with regard to the specific Zimbabwean
SDNs for whom services were provided. Third, he argues
that the court constructively amended the indictment by in-
cluding SDN Mumbengegwi.
“We review de novo whether jury instructions accurately
summarize the law, but give the district court substantial
discretion to formulate the instructions provided that the in-
structions represent a complete and correct statement of the
law.” United States v. Daniel, 749 F.3d 608, 613 (7th Cir. 2014)
(internal quotation marks omitted). If this court “deter-
mine[s] that the instructions accurately summarize the law,
[we] review[] the district court’s phrasing of the instruction
for abuse of discretion. Reversal is warranted only where the
reviewing court is left with the definite and firm conviction
that a mistake has been committed.” Id. (citation and internal
quotation marks omitted).
1. Willfulness Definition
Turner starts by disputing the district court’s definition
of “willfulness” or “willfully.”
The district court’s jury instructions stated: “Count Three
of the indictment charges [Turner] with willfully conspiring
to provide services on behalf of and for the benefit of certain
specially designated nationals, specifically Robert Mugabe,
Gideon Gono, Simon Moyo, or Samuel Simbarashe Mum-
bengegwi, without first having obtained a license from the

-- 13 of 31 --

14 No. 15-1175
United States Department of the Treasury.” (Trial Tr. vol. VI,
130, Oct. 7, 2014.) The district court provided the following
definition for the term “willfully:”
As used in Count 3, the defendant acted willfully if
he acted intentionally and purposefully with the in-
tent to do something the law forbids, that is, with
bad purpose to disobey or to disregard the law. The
defendant need not be aware of the specific law or
rule that … his conduct would violate. In other
words, the defendant does not have to know that
his conduct would violate a particular law, execu-
tive order or federal regulation, but he must act
with the intent to do something the law forbids.
(Trial Tr. vol. VI, 131, Oct. 7, 2014.)
On appeal, Turner claims that the district court’s defini-
tion misstates the law. He argues, instead, that the definition
of “willfulness” requires “that the government must show
that [Turner] acted with ‘the specific intent to do something
the law forbids … i.e. providing services to Specially Desig-
nated Nationals.’” (Appellant Br. 27.)
In the present case, the district court’s definition of “will-
fulness” accurately summarized the law because it is con-
sistent with the Supreme Court’s decision in Bryan v. United
States, 524 U.S. 184 (1998).
In Bryan, the Supreme Court addressed the meaning of
the term “willfully” for a defendant convicted of “‘willfully’
dealing in firearms without a federal license.” Id. at 186. The
Court held that the traditional definition of “willfully” ap-
plied—that the government only needed to prove
“knowledge that the conduct is unlawful.” Id. at 192. The
court expressly rejected the defendant’s arguments for “a

-- 14 of 31 --

No. 15-1175 15
more particularized showing”—that the defendant knew
that a specific federal law prohibited his conduct. Id. In
reaching its conclusion, the Court affirmed the district
court’s explanation of the term “willfully,” which read:
A person acts willfully if he acts intentionally and
purposely and with the intent to do something the
law forbids, that is, with the bad purpose to diso-
bey or to disregard the law. Now, the person need
not be aware of the specific law or rule that his
conduct may be violating. But he must act with the
intent to do something the law forbids.
Id. at 190 (internal quotation marks omitted).
Here, the district court did not commit any error. The
district court accurately stated the law—its definition of
“willfully” is consistent with Bryan’s holding that, for will-
fulness, “the traditional rule that ignorance of the law is no
excuse; knowledge that the conduct is unlawful is all that is
required.” Id. at 196. Turner’s argument for a specific intent
requirement was the very argument rejected by the Bryan
Court. Id. at 192–96. Additionally, the district court did not
abuse its discretion with its phrasing—its definition of “will-
fully” closely tracks the explanation of “willfully” upheld by
the Bryan Court.
Turner contends that this court has sometimes required a
more particularized definition of “willfulness,” relying pri-
marily on United States v. Dobek, 789 F.3d 698 (7th Cir. 2015).
In Dobek, an engineer who sold canopy seals to the Venezue-
lan Air Force was convicted of exporting munitions to Vene-
zuela without a State Department license, in violation of 22
U.S.C. § 2778(b)(2), (c), and 22 C.F.R. §§ 121.1, 123.1, 127.1. Id.
at 699. In holding that “willfully” required “knowledge by

-- 15 of 31 --

16 No. 15-1175
the defendant … that he needed a license to export the muni-
tions that he exported,” the Dobek court provided the follow-
ing reasoning:
Ordinarily a person is conclusively presumed to
know the law … But this principle, sensible when a
person is bound to know that what he is doing is
wrong, breaks down when a person who does not
know of the law prohibiting what he does has no
reason to think that he's acting wrongfully. Espe-
cially when the law is a regulation rather than a
statute. He may not be aware of a regulation im-
posing an embargo on the export of a product to a
particular country when it is a product that is
commonly exported. The United States is the
world's largest exporter of munitions.
Id. at 700. The Dobek court, however, affirmed the defend-
ant’s conviction under harmless error review because “the
evidence that the violation was willful was overwhelming,”
even under a heightened willfulness definition. Id. at 702.
In this case, even if we were to give Turner the benefit of
a heightened willfulness definition, similar to the standard
in Dobek, his claim would still fail under harmless error re-
view, similar to the outcome in Dobek. Turner arranged
meetings and correspondence between U.S. and Zimbabwe-
an officials in order to discuss the lifting of the “sanctions”—
Executive Orders 13288 and 13391 and 31 C.F.R. § 541.101 et
seq. In other words, he provided services to the SDNs to as-
sist in lifting the prohibitions against providing services to
the SDNs. Turner was clearly aware that his conduct was
unlawful, even under a heightened definition of willfulness,
and therefore “the evidence that [Turner’s] violation was
willful was overwhelming.” Dobek, 789 F.3d at 702.

-- 16 of 31 --

No. 15-1175 17
Accordingly, the district court’s definition of “willfully”
was proper and there was no abuse of discretion in its phras-
ing.
2. Jury Unanimity Regarding Specific SDNs
Turner also argues that “the jury should have had to
unanimously decide which Specially Designated National
Turner conspired to provide services on behalf of” (Appel-
lant Br. 30.) Turner had presented this argument as part of
his proposed jury instructions, which the court rejected.
Instead, the district court provided the following instruc-
tions for the first element of Count Three: “To find the de-
fendant guilty of the crime charged in Count 3, you must
find that the government has proven … that two or more
U.S. persons agreed to provide services on behalf of or for
the benefit of a specially designated national.” (Trial Tr. vol.
VI, 130, Oct. 7, 2014.)
The Supreme Court has held that while jury unanimity is
required for each principal element of a crime, “‘a federal
jury need not always decide unanimously which of several
possible sets of underlying brute facts make up a particular
element, say, which of several possible means the defendant
used to commit an element of the crime.’” Daniel, 749 F.3d at
613 (quoting Richardson v. United States, 526 U.S. 813, 817
(1999).
As a result, in Turner’s case, we must determine if the
particular SDN on whose behalf Turner conspired to pro-
vide services for constitutes an element or a means of the of-
fense. We conclude that it is a means, rather than an element,
of Turner’s offense.

-- 17 of 31 --

18 No. 15-1175
We start by examining the language of the statute and
regulations underlying Turner’s offense. Turner was con-
victed of conspiring to provide services on behalf of, or for
the benefit of, Zimbabwean SDNs, in violation of the IEEPA,
50 U.S.C. § 1705(c), and 31 C.F.R. §§ 541.201, 541.204, and
541.405.
The IEEPA makes it unlawful for “a person to violate, at-
tempt to violate, conspire to violate, or cause a violation of
any license, order, regulation, or prohibition issued under
this chapter.” 50 U.S.C. § 1705(a). This offense does not men-
tion SDNs, let alone require a unanimous jury finding as an
element the specific SDNs for whom services were per-
formed.
We next consider 31 C.F.R. §§ 541.201, 541.204, and
541.405, which implement Executive Orders 13288 and
13391, which, in turn, were issued pursuant to the IEEPA.
Section 541.201(a)(1) prohibits transactions of all property
belonging to “[t]he persons listed in the Annex to Executive
Order 13288 of March 6, 2003, as amended by Executive Or-
der 13391 of November 22, 2005.” There, “persons” are the
Zimbabwean SDNs. Section 541.204(b) prohibits “[a]ny con-
spiracy formed to violate any of the prohibitions set forth in
this part.” Section 541.405(a)(1) prohibits “services per-
formed” by U.S. persons “[o]n behalf of or for the benefit of
a person whose property and interests in property are
blocked pursuant to § 541.201(a).”
Again, there is nothing in the language of these regula-
tions to indicate that the jury must unanimously find as an
element the specific SDNs for whom services were per-
formed. In fact, the language of the regulations is worded
broadly, so as to encompass any combination or group of

-- 18 of 31 --

No. 15-1175 19
SDNs—“[t]he persons listed in the Annex” and “a person
whose property and interests in property are blocked”
§§ 541.201(a)(1), 541.405(a)(1) (emphasis added). Thus, the
relevant statutory and regulatory language indicates that the
specific SDN is a means, rather than an element, of Turner’s
offense.
Turner’s argument is similar to the one rejected by this
court in United States v. Griggs, 569 F.3d 341 (7th Cir. 2009).
In Griggs¸ a defendant convicted of conspiring to further a
Ponzi scheme challenged the jury instructions, arguing that
the jury should have been required to agree unanimously on
an overt act that at least one of the conspirators had commit-
ted. Id. at 342–43. Our decision in Griggs rejected the defend-
ant’s argument, holding that “[t]he law distinguishes be-
tween the elements of a crime, as to which a jury must be
unanimous, and the means by which the crime is commit-
ted.” Id. at 343 (citing Richardson, 526 U.S. at 817–18 and
Schad v. Arizona, 501 U.S. 624, 631, 649 (1991)). Applying this
rule, we determined that the jurors had agreed unanimously
on the defendant’s crime—“that he had taken a step toward
accomplishing the goal of the conspiracy.” Id. at 344. We fur-
ther held, in contrast, that it was “inconsequential” that the
jury might have disagreed on the means of the crime, name-
ly the overt acts or specific steps taken in carrying out the
offense. Id.2
2 We note that the Griggs court did assess that the jury “may not have
been unanimous about the elements of [defendant’s] crime” but then de-
termined it was harmless error. 569 F.3d at 344–45. However, this as-
sessment does not affect Griggs’s conclusion, pursuant to Richardson, that
a crime and its elements required jury unanimity, but the means of
committing the crime did not.

-- 19 of 31 --

20 No. 15-1175
Like Griggs, here, as the government points out, even if
the jurors in Turner’s case had disagreed on which particular
SDN that Turner conspired to provide services for, such dis-
agreement would not mean that the jurors also disagreed on
whether Turner conspired to provide services for an SDN.
(Appellee Br. 32–33.) In other words, the identities of the
particular SDNs are a means, not an element, of Turner’s of-
fense. Therefore, it did not require jury unanimity.
Turner relies heavily on Richardson to support his argu-
ment that the particular SDN for whom services were pro-
vided is an element of the offense. In Richardson, the Su-
preme Court interpreted the Continuing Criminal Enterprise
(“CCE”) statute, 21 U.S.C. § 848, holding that to convict a de-
fendant, jurors must unanimously agree not only that the
defendant committed some “continuing series of violations”
but also on “each individual violation” that made up the
continuing series. 526 U.S. at 820, 824 (internal quotation
marks omitted). In reaching this conclusion, the Supreme
Court examined the language and legal tradition of the CCE
statute in order to determine congressional intent, as well as
the potential unfairness that would befall defendants if the
predicate offenses were not deemed to be elements. Id. at
818–24; see also United States v. Pollock, 757 F.3d 582, 587 (7th
Cir. 2014) (summarizing Richardson’s holding and reason-
ing).
Turner’s reliance on Richardson, however, is misplaced. In
United States v. Gibson, in declining to apply Richardson to re-
quire that the specific form of pecuniary gain was an ele-
ment of murder-for-hire under 18 U.S.C. § 1958(a), this court
held that Richardson’s analysis was “specific to the CCE stat-
ute.” 530 F.3d 606, 611–12 (7th Cir. 2008). In the present case,

-- 20 of 31 --

No. 15-1175 21
Turner was convicted of violating the IEEPA, not the CCE
statute, and therefore Richardson does not apply. Turner also
fails to present any cogent arguments for applying Richard-
son to the IEEPA based on statutory language, legal tradi-
tion, or unusual risk to defendants—the types of arguments
found persuasive in Richardson. See Pollock, 757 F.3d at 587
(declining to extend Richardson to a felon in possession of-
fense after analysis under the “Richardson factors”). Because
Richardson’s analysis was specific to the CCE statute, this
court and our sister circuits have routinely declined to apply
it to other offenses. See, e.g., id. (rejecting the argument that
possession of a specific firearm was an element of a felon in
possession charge under 18 U.S.C. § 922(g)); United States v.
Lee, 317 F.3d 26, 37–40 (1st Cir. 2003) (rejecting the argument
that the specific devices possessed was an element of posses-
sion of counterfeit or unauthorized access devices under 18
U.S.C. § 1029(a)(3)). As such, we decline to apply Richardson
to Turner’s case.
In the alternative, Turner contends that “[a]t a minimum,
the particular SDN is an object of the conspiracy,” which al-
so requires jury unanimity. (Appellant Br. 33.) This conten-
tion is meritless and simply repackages his previous argu-
ment. For Count Three, Turner’s jury instructions named
four SDNs—Mugabe, Gono, Moyo, and Mumbengegwi—
and required that the government prove as an element “that
two or more US persons agreed to provide services on behalf
of or for the benefit of a specially designated national.” (Trial
Tr. vol. VI, 130, Oct. 7, 2014 (emphasis added).) In other
words, the object of the conspiracy was providing services
for any combination of the named SDNs. As discussed, the
identity of the particular SDN is a means, not an element of
Turner’s offense. Therefore, Turner’s contention fails.

-- 21 of 31 --

22 No. 15-1175
3. Constructive Amendment
Turner also contends that the district court’s jury instruc-
tions constructively amended his indictment because Count
Three of the indictment did not include SDN Mumbengegwi,
but the court’s jury instructions for Count Three did include
this individual.
Turner raises his claim under the Fifth Amendment,
which provides that “[n]o person shall be held to answer for
a … crime, unless on a presentment or indictment of a Grand
Jury.” U.S. Const. amend. V. “A constructive amendment to
an indictment occurs when either the government …, the
court …, or both, broadens the possible bases for conviction
beyond those presented by the grand jury.” United States v.
Cusimano, 148 F.3d 824, 829 (7th Cir. 1998) (internal quota-
tion marks omitted). “However, not all variations in proof
that contradict or supplement verbiage in the indictment rise
to the level of constructive amendments.” United States v.
Phillips, 745 F.3d 829, 832 (7th Cir. 2014) (internal quotation
marks omitted). Rather, the offense “charged in the indict-
ment must be materially different or substantially altered at
trial, [so that] it is impossible to know whether the grand ju-
ry would have indicted for the crime actually proved.” Id.
(alteration in original and internal quotation marks omitted).
In this case, Count Three of the indictment charged
Turner and Ben Israel with “willfully conspir[ing] to provide
services on behalf of and for the benefit of Specially Desig-
nated Nationals Robert Mugabe, Gideon Gono, and Simon
Khaya Moyo,” in violation of the IEEPA and implementing
regulations. (R. 38 at 18.)

-- 22 of 31 --

No. 15-1175 23
After closing arguments, however, the district court in-
structed the jury that, “Count Three … charges the defend-
ant with willfully conspiring to provide services on behalf of
and for the benefit of certain specially designated nationals,
specifically, Robert Mugabe, Gideon Gono, Simon Moyo, or
Samuel Simbarashe Mumbengegwi.” (Trial Tr. 130, vol. VI, Oct.
7, 2014. (emphasis added))
Because Turner did not raise an objection below, this
court reviews his constructive amendment claim for plain
error. Cusimano, 148 F.3d at 828. In this circumstance, we will
only reverse if the constructive amendment constituted “a
mistake so serious that but for it the [defendant] probably
would have been acquitted in order for us to reverse.” Id.
(alteration in original and internal quotation marks omitted).
In this case, Turner’s argument fails because it is similar
to the one rejected by this court in Phillips. In Phillips, the de-
fendant was charged with conspiracy to defraud the gov-
ernment and presenting a false claim, and the indictment on-
ly mentioned two fraudulent tax returns. 745 F.3d at 832.
During trial, however, the government introduced evi-
denced of two additional fraudulent tax returns, arguing
that “the unusual similarities among the four returns were
proof of the conspiracy.” Id. On appeal, the defendant ar-
gued that a constructive amendment had occurred.
The Phillips court rejected defendant’s constructive
amendment claim because “the indictment can be read natu-
rally to include all four tax returns.” Id. The Phillips court
further held that the fact that only two returns are men-
tioned in the indictment “does not preclude the government
from relying upon extremely similar evidence that also falls
within the charged dates and of which [the defendant] clear-

-- 23 of 31 --

24 No. 15-1175
ly had notice.” Id. Consequently, the Phillips court held that
no constructive amendment occurred. Id. at 833.
Similarly, there was no constructive amendment of
Turner’s indictment. As in Phillips, Count Three of Turner’s
indictment can be read naturally to include SDN Mumbeng-
egwi. Count Three explicitly states, “Paragraphs 1(a), (b), (c),
(d) of Count One are reallaged here,” and Paragraph 1(b)(v)
of Count One specifically identifies Mumbengegwi as an
SDN. (R. 38 at 2, 18.) Furthermore, like in Phillips, the evi-
dence of Turner’s relationship with SDN Mumbengegwi was
extremely similar to the evidence of Turner’s relationship
with the other listed SDNs. And Turner clearly had notice
regarding SDN Mumbengegwi, who was specifically identi-
fied in Count One of the indictment. Phillips confirmed that
the “admission of evidence intricately related to the charged
crimes … does not constructively amend the indictment,”
and we hold that this principle firmly controls Turner’s
claim. 745 F.3d at 832 (quoting United States v. Alhalabi, 443
F.3d 605, 614 (7th Cir. 2006). Thus, Turner’s indictment was
not constructively amended.
C. Interactions with Jury after Deliberations Began
Lastly, Turner challenges the district court’s interactions
with the jury after deliberations had begun.
On October 7, 2014, at 3:05 p.m., the district judge asked
the jurors to begin deliberations. The district judge then told
the two alternate jurors that they could go home but were
not formally excused because it was possible their services
might still be needed. (Trial Tr. vol. VI, 137, Oct. 7, 2014.)
Approximately 45 minutes into deliberations, juror
Chism sent the district judge a note that stated: “I have a fu-

-- 24 of 31 --

No. 15-1175 25
neral to go to tomorrow so I would like to know what you
would like me to do.” (Id. at 142.) The district judge dis-
cussed the note with the government and Turner, and they
agreed that the judge could confer with Chism about the sit-
uation ex parte in the jury room.
As the judge was walking to the jury room, she received
another note from the jury inquiring about the schedule and
Chism’s request. (Id. at 145.) The judge then had an ex parte
conversation with Chism in front of the jury. Chism in-
formed the judge that that the funeral was for his cousin, it
would take place at 11 a.m. the following morning, and that
he would not be available to deliberate at all the following
day. The judge described Chism as “annoyed” and “angry.”
(Id. at 146, 151.)
The judge returned to the courtroom and conferred with
the government and Turner. The judge decided not to excuse
Chism for the following reasons: he had not mentioned the
funeral until deliberations had begun, another juror had re-
quested time off for an uncle’s funeral, and neither funeral
was for an immediate family member.
The district judge returned to the jury room and commu-
nicated ex parte her decision with the jury, stating, “[w]e've
decided that you need to go ahead and deliberate.” (Trial Tr.
vol. VII, 5, Oct. 8, 2014.) According to the judge, Chism re-
sponded that “he would not return the following day re-
gardless of the court’s order.” (R. 233 at 1.)
Again, the judge went back to the courtroom and dis-
cussed the situation with the government and Turner. Ulti-
mately, the judge decided to excuse Chism. She reasoned
that “deliberations had barely begun (if at all)” and if she al-

-- 25 of 31 --

26 No. 15-1175
lowed Chism to take off the following day, she would also
have to allow the other juror to go to a funeral, potentially
extending the deliberations for over a week. (Id. at 2.)
On October 8, 2014, the next alternate juror, Timothy
Lambin, was called. After Lambin assured the district judge
that he had not discussed the case with anyone, the district
judge instructed the jury to begin deliberations from the be-
ginning. On October 10, 2014, the jury reached its verdict.
On appeal, Turner argues that the district judge erred by:
(1) replacing juror Chism with an alternate and (2) engaging
in ex parte communications with the jury.
1. Replacement of Juror Chism with an Alternate
Turner first argues that the district judge improperly re-
placed Chism with an alternate.
This court has held that a district court has discretion to
replace a deliberating juror, pursuant to Federal Rule of
Criminal Procedure Rule 24(c)(3), which provides:
Retaining Alternate Jurors. The court may retain al-
ternate jurors after the jury retires to deliberate. The
court must ensure that a retained alternate does not
discuss the case with anyone until that alternate
replaces a juror or is discharged. If an alternate re-
places a juror after deliberations have begun, the
court must instruct the jury to begin its delibera-
tions anew.
United States v. Warner, 498 F.3d 666, 688–89 (7th Cir. 2007).
Accordingly, this court reviews a district court’s replace-
ment of a deliberating juror with an alternate for an abuse of
discretion. Id. at 690. If the district court has a “legitimate basis
for th[e] decision [to replace a juror], there is no abuse of dis-

-- 26 of 31 --

No. 15-1175 27
cretion.” Id. (alteration in original) (emphasis added and in-
ternal quotation marks omitted).
Here, the district judge had a legitimate basis for excus-
ing Chism. According to the district judge, Chism was “an-
noyed” and “angry,” and he had declared that he would not
return the following day regardless of the district court’s or-
der. This court has stated, “there is hardly anything that
would make a juror less able to serve than his failure to
show up.” United States v. Almonacid, 70 F. App’x 390, 392
(7th Cir. 2003); see also United States v. Peters, 617 F.2d 503,
505 (7th Cir. 1980) (“[I]t is difficult to imagine a more com-
plete disqualification than a failure to appear.”). Thus, the
district court did not abuse its discretion in replacing Chism
with an alternate.
Turner argues that the district court erred in not demon-
strating “good cause” to dismiss Chism.3 This argument is
without merit because it is based on the incorrect Federal
Rule of Criminal Procedure. Turner’s “good cause” argu-
ment and supporting cases are all premised on Rule 23(b)(3),
which provides: “[a]fter the jury has retired to deliberate, the
court may permit a jury of 11 persons to return a verdict,
even without a stipulation by the parties, if the court finds
good cause to excuse a juror.” See United States v. Araujo, 62
F.3d 930, 931 (7th Cir. 1995); United States v. Patterson, 26 F.3d
1127, 1128 (D.C. Cir. 1994); United States v. McFarland, 34 F.3d
1508, 1511 (9th Cir. 1995) (discussing Rules 23 and 24 but an-
3 Turner uses the term “just cause” in his argument. However, “[i]n cur-
rent Rule 23(b), the term ‘just cause’ has been replaced with the more
familiar term ‘good cause,’ that appears in other rules. No change in sub-
stance is intended.” Fed. R. Crim. P. 23(b), 2002 advisory committee
note.

-- 27 of 31 --

28 No. 15-1175
alyzing the dismissal of a juror for “just cause” under Rule
23); United States v. Tabacca, 924 F.2d 906, 913–15 (9th Cir.
1991). In contrast, here, the district judge replaced Chism
pursuant to Rule 24(c)(3). Consequently, Turner’s argument
fails.
2. Ex Parte Communications with the Jury
Turner next contends that the district judge had improp-
er ex parte communications with the jury. He raises his claim
under the Sixth Amendment’s Confrontation Clause, the
Fourteenth Amendment’s Due Process Clause, and Federal
Rule of Criminal Procedure 43.
This court has explained that a “defendant has a constitu-
tional right to be present at all critical stages of a prosecu-
tion, but this right does not extend to every interaction be-
tween the court and the jury.” Winters v. Miller, 274 F.3d
1161, 1168 (7th Cir. 2001) (citing United States v. Gagnon, 470
U.S. 522, 526 (1985)). The “mere occurrence of an ex parte
conversation between a trial judge and a juror does not con-
stitute a deprivation of any constitutional right. The defense
has no constitutional right to be present at every interaction
between a judge and a juror, nor is there a constitutional
right to have a court reporter transcribe every such commu-
nication.” United States v. Bishawi, 272 F.3d 458, 461 (7th Cir.
2001) (quoting Rushen v. Spain, 464 U.S. 114, 119 (1983) (Ste-
vens, J., concurring in judgment)). Instead, “the constitution-
al right to presence … exists where there is a reasonably sub-
stantial relation to the fullness of opportunity to defend
against the charge and to the extent that a fair and just hear-
ing would be thwarted by the defendant’s absence.” Id. at
461–62. (citing Gagnon, 470 U.S. at 526). Additionally, “[t]he
broader, procedural right to be present afforded by Federal

-- 28 of 31 --

No. 15-1175 29
Rule of Criminal Procedure 43 is likewise not without lim-
its.” Id. at 462.
In this case, Turner challenges the district judge’s ex parte
communications with the jury, including her “conversation
with the jury regarding replacing juror Chism” and her
comment that “we are not going to be able to do this
again …, it’s only that you had just begun that I am going to
excuse” somebody. (Appellant Br. 42.)
This court determines whether ex parte contact violates a
defendant’s constitutional or procedural right to presence
under a harmless error standard. Bishawi, 272 F.3d at 462.
Under this standard, this court will only reverse if the error
affects the defendant’s “substantial rights,” which are those
that affect the outcome of the case. Id. In other words, this
court will “look to see if the communications had a prejudi-
cial effect on the defendant and rendered the trial funda-
mentally unfair.” Moore v. Knight, 368 F.3d 936, 940 (7th Cir.
2004) (internal quotations marks omitted). We have held that
“a right to presence violation entitles the defendant to a new
trial only if the ex parte communication at issue likely affect-
ed the jury’s verdict.” Bishawi, 272 F.3d at 462.
In the present case, Turner’s claim does not survive
harmless error review because he fails to establish that the ex
parte communication likely affected the jury’s verdict.
As an initial matter, Turner persuasively asserts that his
procedural right to presence under Rule 43 was violated.
Rule 43(a) “entitles a defendant to be present at all stages of
his trial,” and “[c]ommunication between the judge and the
jury, or a single juror, is one of those stages.” United States v.
Pressley, 100 F.3d 57, 59 (7th Cir. 1996) (citing Fed R. Crim P.

-- 29 of 31 --

30 No. 15-1175
43(a) and Rogers v. United States, 422 U.S. 35, 39 (1975)). Here,
the district court engaged in ex parte communications with
members of the jury without Turner or his counsel being
present, thereby violating Rule 43.
It is less clear, however, whether Turner has demonstrat-
ed that he is entitled to a presumption of prejudice. We have
held that “[i]n a criminal case, any private communication …
with a juror during a trial about the matter pending before the
jury is, for obvious reasons, deemed presumptively prejudi-
cial.” Bishawi, 272 F.3d at 462. (alteration in original) (citing
Remmer v. United States, 347 U.S. 227, 229 (1954)). This pre-
sumption, however, is “without question rebuttable.” Id. (cit-
ing Rushen, 464 U.S. at 118–19).
Here, the record shows that all of the district judge’s ex
parte communications with the jury pertained only to the re-
placement of Chism, not the substance of the case. It is un-
clear whether these communications relate to “the matter
pending before the jury” and at least one of our sister cir-
cuits has expressly distinguished between ex parte contacts
that are “merely ministerial in nature” and those that consti-
tute “substantive communications.” United States v. Martin,
777 F.3d 984, 991 (8th Cir. 2015) (“A defendant is not preju-
diced by ex parte contacts between judge and jury that are
merely ministerial in nature and not substantive communi-
cations.”)
Regardless, even if Turner was entitled to a presumption
of prejudice, his claim fails to survive harmless error review
because these ex parte contacts did not likely affect the out-
come of the case. The alleged ex parte conversations regard-
ing the replacement of Chism concerned a proper exercise of
discretion by the district court. And the district judge’s ex

-- 30 of 31 --

No. 15-1175 31
parte comment had no determinable, much less a fundamen-
tally unfair, effect on the deliberations—Chism was replaced
by an alternate and the jury subsequently returned a verdict.
Thus, there is nothing to suggest that these ex parte commu-
nications impacted the outcome of the case.
Turner asserts that the other jurors might have disagreed
with Chism and the ex parte communications might have al-
lowed them to effectuate his removal. His contention, how-
ever, is pure speculation. Not only is this scenario unsup-
ported, but it is unlikely given that the deliberations had
“barely begun (if at all)” and the jurors “had nothing to do
with making that decision [to replace Chism].” (Trial Tr. 7,
Oct. 8, 2014.)
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.

-- 31 of 31 --