Federal Corner: A Judge’s Erroneous Ruling Does Not Always Implicate the Fifth Amendment – By F. R. Buck Files Jr.


On December 5, 2013, a panel of the United States Court of Appeals for the Seventh Circuit did not send Frank Caira an early Christmas present; instead, they affirmed his convictions for conspiracy to commit murder of a United States official and solicitation of a violent felony. United States. v. Caira, ___F3d___, 2013 WL 6326589 (7th Cir. 2013) [Panel: Chief Judge Wood and Circuit Judges Easterbrook and Hamilton. Opinion by Chief Judge Wood].

The Court held that:

  • The testimony of the defendant’s former attorney that the defendant was in a panic when he showed his former attorney text messages that the defendant had received from his alleged co-conspirator was not hearsay;
  • The district court’s erroneous ruling that the testimony was hearsay and would not be admissible without the defendant’s testimony concerning the conversation did not com­pel the defendant to testify in violation of the Fifth Amendment; and,
  • The district court’s ruling did not affect the defendant’s substantial rights.

Over the years, I have enjoyed reading opinions written by the judges of the Seventh Circuit—and the opinion in Caira was no exception. Judge Wood began his opinion with this sentence:

Frank Caira is a smart man who has done some stupid things. Prominent among the latter was his plan for beating a felony drug indictment by having the prosecutor and Drug Enforcement Administration agent on his case murdered.

When I read that, I knew that this was going to be an interesting case.

A Synopsis of the Facts in the Case

Caira was “an accomplished and well-published medical researcher” who decided to get into the illegal drug business and eventually produced more than 70,000 pills of ecstasy. DEA Special Agent Patrick Bagley and other federal officers arrested Caira. After he was indicted, Caira met and his lawyer met with Assistant United States Attorney Shoshana Gillers and several federal agents on five occasions to discuss his cooperation and a resolution of his case.

Another lawyer—Tamara Holder—contacted the Federal Bureau of Investigation with information that one of her clients, Ricardo Ruiz, had information about a plot to kill Bagley and Gillers. FBI agents met with Ruiz, who gave them information that Jack Mann had recruited him to murder Bagley and Gillers. He was to be paid two kilograms of cocaine and given lessons on how to make synthetic drugs. Ruiz had in his possession copies of court documents from Caira’s drug case as well as an envelope that Mann had given to him. Handwritten notes containing Bagley’s and Giller’s names were on the envelope. Ruiz informed the investigators that he had never had any contact with Caira.

FBI agents arrested Mann, who agreed to cooperate. The agents provided Mann with a recording device that he wore to a meeting with Caira. Although the device malfunctioned, Caira was arrested by these agents, who also seized his cell phone. A forensic examination of the cell phone revealed text messages between Caira and Mann. Based on these text messages and the testimony of Mann and Ruiz, Caira was indicted for violations of 18 U.S.C. §§ 1117 and 373. After a jury trial, Caira was convicted on all counts and sentenced to life in prison plus 20 years; thereafter, he gave timely notice of appeal.

Returning to Judge Wood’s opinion, he writes:

[The Guts of the Government’s Case]

[T]he government’s case rested primarily on the testimony of Mann and Ruiz and the text messages recovered from Caira’s phone. Mann and Ruiz testified that Caira approached Mann about finding a hitman to kill Gillers and Bagley, whereupon Mann recruited Ruiz. In the text messages, Caira and Mann discussed the murder plot in coded language. “When can you get me the paperwork with names of people to be underwritten?” asked Mann at one point. Caira wrote back, “You have two names, and you know the big one,” and Mann replied, “Pat is first to be insured.”

[The Testimony at Trial]

At trial, Caira testified that Mann used the term “underwritten” to “refer[ ] to contracts in general, and that was a term of having people underwritten to be killed that he came up with.” In another text message, Mann told Caira that the plan was a “green light.” Asked later what this message meant, Caira said, “He was referring to this whole plan of killing the prosecutor and saying, look, there’s a green light[.]”

[The Defendant’s Theory of the Case]

Caira never disputed that a plot to kill Gillers and Bagley existed. Rather, his defense was that the plot was all Mann’s idea and that Caira never intended that anyone should be hurt. Caira pointed to cajoling text messages sent by Mann and a threatening voicemail from Ruiz as evidence that Mann and Ruiz were the driving forces behind the plot.

[The Defense’s Case Begins to Crater]

For his first witness, Caira attempted to call his former lawyer, Jeffrey Fawell, to testify that Caira had shown him Mann’s text messages in a panic. This evidence, Caira argued, was relevant to show his state of mind at the time, specifically, that he lacked murderous intent. The government objected that Fawell’s testimony would be hearsay, and the district court agreed, stating that “[Fawell’s] statement as to what Mr. Caira said without some testimony as to the person making that statement would be rank hearsay. . . . [T]here are certain conditions precedent which must be met in order to have that evidence come in and not be hearsay.” After a short recess, defense counsel announced that Caira would testify, while attempting simultaneously to preserve the Fifth Amendment issue for appeal.

        Caira was on the stand for hours.


The government’s cross-examination of Caira was devastating.

[Judge Conlon’s Erroneous Ruling in Response to the Government’s Hearsay Objection]

Under the Federal Rules of Evidence, hearsay is defined as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). The statements at issue here were made during a conversation between Fawell and Caira, and they were about text messages that Caira had received from Mann. In those statements, Caira supposedly told Fawell that he had received Mann’s messages; Fawell then advised him to stay away from Mann. Neither Caira nor Fawell made his statements “while testifying at the current trial,” and so the first part of Rule 801(c)’s definition was met. The question is whether any of the contested statements was offered for the truth, or if instead it was offered for another purpose. In our view, the more natural interpretation is that these statements were offered to show Caira’s state of mind, not to prove the point that he actually had received text mes­sages from Mann or that he should avoid Mann. Because the statements were not offered to prove the truth of the matter asserted, the district court erred by characterizing them as hearsay.

[Judge Conlon’s Error Does Not Result in a Win for Caira]

That conclusion in itself, however, does not compel a ruling in Caira’s favor. He urges that this evidentiary error had the effect of forcing him to take the stand, and further that this compelled testimony necessarily violated his rights under the Fifth Amendment. But the link between an evidentiary error and a constitutional violation cannot be drawn so readily. As we noted in United States v. Paladino, 401 F.3d 471 (7th Cir.2005), the Supreme Court has held that there is no compulsion as the Fifth Amendment uses that concept in this situation, because the defendant retains the option of standing on his right not to testify and seeking appellate correction of the evidentiary ruling. Id. at 477, citing United States v. Luce, 469 U.S. 38, 41–43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).


As we noted in Paladino, “there is no compulsion in such a case, since the defendant has the option of refusing to testify and instead, if he is convicted, of obtaining appellate correction of the erroneous evidentiary ruling and with it a new trial.” 401 F.3d at 477. We acknowledged that “this rule puts the defendant to a hard tactical choice,” but we were concerned that “the alternative would be to give him two bites at the apple: testify, and try to win an acquittal; if that fails, appeal and get a new trial on the basis of the judge’s ruling.” Id.; see also Wilson, 307 F.3d at 599–600 (rejecting defendant’s argument that such a choice impermissibly puts defendant “on the horns of a dilemma”). We see no reason to jettison that logic.

[Caira’s Difficult Choice]

As in Luce and Paladino, the district court’s decision here left the defendant with a difficult choice, but a choice nonetheless. Caira’s decision was voluntary, strategic and fully informed—that is, it was the antithesis of compulsory. Had the jury believed him, he might be a free man today. But it did not. We are satisfied that Caira’s decision to testify was based on much more than the district court’s evidentiary ruling. That is not unusual: “an accused’s decision whether to testify ‘seldom turns on the resolution of one factor[.]’” Luce, 469 U.S. at 42, 105 S.Ct. 460 (quoting New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979) (Blackmun, J., dissenting)).

[Judge Conlon’s Erroneous Ruling Did Not Affect Caira’s Substantial Rights]

Understood as an ordinary evidentiary error, the mistaken decision to exclude Fawell’s testimony would not call for reversal unless it affected Caira’s substantial rights. See Fed. R. Crim. P. 52(a). It did not have such an effect. First, the proffered testimony concerned only a small part of Caira’s overall defense. Weighed against the incriminating text messages, the fact that the targets of the alleged plot were the prosecutor and DEA agent involved in Caira’s own case, and the testimony of Mann and Ruiz, Fawell’s testimony would not have been likely to influence the jury’s verdict. In addition, Caira elected to testify before offering his other witnesses.


In the end, Caira cannot show that the mistaken exclusion of one line of evidence had the necessary effect on his rights.


Our conclusion is bolstered by the fact that if Fawell’s testimony were really so vital to his case, Caira could have directly challenged its exclusion on appeal.

[The Court’s Limited Holding]

We hold only that because Caira’s decision to testify was voluntary, under the governing Supreme Court cases there is no merit to his argument that his testimony was compelled in violation of the Fifth Amendment privilege against self-incrimination. Moreover, the evidentiary error we have identified did not affect his substantial rights.

My Thoughts

  • This is the only case that I have ever seen where a hit-man’s compensation was to include instructions on how to make synthetic drugs.
  • No matter how long someone has been a trial lawyer or a trial judge, there is always that hearsay issue that has the potential to sneak up on the lawyer or the judge. That should never surprise us. Brett Harrison—my colleague for the last eight and a half years in the practice of criminal law—and I just finished a murder case during which we kept drawing hearsay objections when we were not offering the statements to prove the truth of the matter asserted. Such a common problem—and the judge didn’t always rule with us.
  • I’m always amused at coincidences. When I discovered this case, Brett and I had been discussing a pending case and the issue of whether a district judge’s ruling could require our client to take the stand and testify. After reading Caira, we determined that in at least our case, this would not be a good strategy. Thank you, Judge Wood!
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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