“Promoting the Enactment of Legislation” Qualifies as an Official Act; No Per Se Miranda Rule During Warrant Stops; No Duty to Delay Sentencing for Pending Guidelines Amendments — Commentary on United States v. Weiss (7th Cir. 2025)

Introduction

This appeal arises from a federal public corruption prosecution centered on efforts to legalize “sweepstakes” gambling machines in Illinois. James T. Weiss, whose company manufactured such machines, was convicted after a jury trial of wire fraud, mail fraud, and bribery. The government’s case showed that Weiss funneled payments through former Illinois Representative Luis Arroyo to spur legislative action favorable to sweepstakes machines and that Arroyo, with Weiss’s support, attempted to enlist State Senator Terrence Link’s help to push a “trailer bill” during the veto session. Unbeknownst to Weiss, Link was cooperating with the FBI.

On appeal to the Seventh Circuit, Weiss challenged: (1) admission of his statements to FBI agents on Miranda grounds; (2) admission of Arroyo’s recorded statements to Link as co-conspirator statements under Rule 801(d)(2)(E); (3) a jury instruction declaring that “promoting the enactment of legislation related to the sweepstakes industry by the Illinois General Assembly is an official act”; and (4) his sentence, including the district court’s refusal to delay sentencing to await amendments to the Sentencing Guidelines and the substantive reasonableness of a 66-month term (an upward variance).

The Seventh Circuit affirmed on all issues. The opinion clarifies several important points of law: (a) there is no per se Miranda requirement just because agents stop a suspect to execute a search warrant; (b) recorded statements made to a government cooperator are admissible as co-conspirator statements when the conspiracy is between other actors (here, Weiss and Arroyo); (c) after McDonnell, a district court does not commit plain error by instructing that “promoting the enactment of legislation” is an “official act,” provided the jury is also told that mere meetings, calls, or hosting are not sufficient; and (d) trial courts need not delay sentencing for prospective Guidelines amendments, though they may consider them under § 3553(a).

Summary of the Judgment

• Miranda/Custody: The court held Weiss was not “in custody” during a 100-minute roadside interview inside an FBI vehicle. He was told he was not under arrest, was not restrained, voluntarily joined the agents in their car, briefly exited and returned, and the interview’s length was largely attributable to his cooperation. The agents’ uncommunicated plan to execute a search warrant at the interview’s end did not transform the encounter into custody.
• Fourth Amendment: Any argument to suppress the phone contents was waived at oral argument; in any event, the encounter was consensual and not unduly prolonged by the agents.
• Rule 801(d)(2)(E): The district court did not abuse its discretion in admitting Arroyo’s recorded statements to Link. The conspiracy was between Weiss and Arroyo; Link’s status as a government informant did not bar admission of Arroyo’s statements made in furtherance of that conspiracy.
• Jury Instructions — “Official Act”: Under plain-error review, no reversible error occurred when the court instructed that “promoting the enactment of legislation” is an official act, especially because companion instructions tracked McDonnell and excluded mere scheduling, hosting, or calls as official acts.
• Sentencing: The district court properly applied the Guidelines in effect at the time of sentencing, permissibly considered likely future amendments under § 3553(a), and did not abuse its discretion by refusing to delay sentencing. The 66-month sentence was substantively reasonable and adequately explained.

Analysis

Precedents Cited and Their Role

• Miranda/Custody Framework
  • Miranda v. Arizona, 384 U.S. 436 (1966): Warnings required only when a suspect is both in custody and interrogated.
  • Howes v. Fields, 565 U.S. 499 (2012): Custody turns on whether a reasonable person would feel free to terminate questioning and leave.
  • Berkemer v. McCarty, 468 U.S. 420 (1984): Officers’ unarticulated plans are irrelevant; the focus is on the suspect’s reasonable perception.
  • Seventh Circuit applications: United States v. Budd, 549 F.3d 1140 (7th Cir. 2008); United States v. Lennick, 917 F.2d 974 (7th Cir. 1990); United States v. Madoch, 149 F.3d 596 (7th Cir. 1998).
  • Other circuits cited: United States v. Kim, 292 F.3d 969 (9th Cir. 2002) (custody found); United States v. Mittel-Carey, 493 F.3d 36 (1st Cir. 2007) (affirming custody finding). The Seventh Circuit emphasized that all such cases turn on fact-specific custody analysis.
• Fourth Amendment/Consensual Encounters
  • United States v. Figueroa-Espana, 511 F.3d 696 (7th Cir. 2007): Consensual encounters do not implicate the Fourth Amendment.
  • Waiver at oral argument: Anchor Glass Container Corp. v. Buschmeier, 426 F.3d 872 (7th Cir. 2005).
• Rule 801(d)(2)(E) — Co-conspirator Statements
  • Fed. R. Evid. 801(d)(2)(E): Statements by a co-conspirator during and in furtherance of a conspiracy are not hearsay when offered against a party.
  • United States v. Mahkimetas, 991 F.2d 379 (7th Cir. 1993): Government informant’s participation in a conversation does not bar admission of the other speaker’s statements if that other speaker is in a conspiracy with the defendant. Conspiracy requires an agreement to commit an illegal act and knowledge of the general scope/objective.
  • United States v. Davis, 845 F.3d 282 (7th Cir. 2016): Santiago proffer procedure and reliance on circumstantial evidence given conspiracies’ secrecy.
  • United States v. Medrano, 83 F.4th 1073 (7th Cir. 2023): Abuse-of-discretion review for evidentiary admissions; proffered statements can be considered but not be the sole basis.
  • United States v. Cruz-Rea, 626 F.3d 929 (7th Cir. 2010): Recruitment statements can be “in furtherance” of a conspiracy.
• “Official Act” After McDonnell; Jury Instructions
  • McDonnell v. United States, 579 U.S. 550 (2016): Defines “official act” under the federal bribery statute; excludes mere access-providing acts like setting up meetings, hosting events, or calls unless tied to a decision/act on a specific “question, matter, cause, suit, proceeding or controversy.”
  • Persuasive authority post-McDonnell:
    • United States v. Burnette, 65 F.4th 591 (11th Cir. 2023) (legislative votes plainly official acts).
    • United States v. Roberson, 998 F.3d 1237 (11th Cir. 2021) (vote indisputably official; meetings attempting to influence decisions can be official depending on facts).
    • United States v. Boyland, 862 F.3d 279 (2d Cir. 2017) (no plain error where official acts encompassed decisions needed to secure grants, award contracts, enact zoning changes).
    • United States v. Lindberg, 39 F.4th 151 (4th Cir. 2022) (error to tell jury that reassigning a regulator would constitute an official act; the Fourth Circuit treats the “official act” determination as one for the jury on the specific conduct).
  • Seventh Circuit’s plain-error framework: United States v. Javell, 695 F.3d 707 (7th Cir. 2012); United States v. Lawson, 810 F.3d 1032 (7th Cir. 2016); United States v. Sloan, 939 F.2d 499 (7th Cir. 1991).
• Sentencing
  • Procedural review de novo; harmless-error doctrine: United States v. Wilcher, 91 F.4th 864 (7th Cir. 2024).
  • Substantive reasonableness; abuse-of-discretion: United States v. Campbell, 37 F.4th 1345 (7th Cir. 2022); United States v. Hatch, 909 F.3d 872 (7th Cir. 2018) (per curiam).
  • Guidelines in effect at sentencing; consideration of future amendments under § 3553(a) is permissible but not mandatory.

Legal Reasoning

1) Miranda/Custody: A fact-intensive, objective inquiry; no per se rule during warrant stops

The court framed the Miranda question as whether a reasonable person in Weiss’s position would have felt free to terminate the interview and leave. Several factors supported a “not in custody” finding:

• Location and visibility: The stop occurred on a public street.
• Non-restraint: Agents told Weiss he was not under arrest, did not handcuff him, and allowed him to leave and re-enter their vehicle to retrieve his phone.
• Duration: The 100-minute length was driven by Weiss’s cooperation, not police coercion.
• Uncommunicated intent: The plan to execute a search warrant after the interview did not matter because it was not conveyed to Weiss, consistent with Berkemer.

The court rejected the notion of a categorical Miranda trigger when agents conduct or anticipate executing a search warrant. Instead, the classic custody factors govern. It also rejected a Fourth Amendment “unduly prolonged” stop argument insofar as the encounter was consensual; and, critically, Weiss waived any claim to suppress cell-phone contents at oral argument.

2) Rule 801(d)(2)(E) Admission of Arroyo’s Statements: Conspiracy between Weiss and Arroyo; Link’s informant status immaterial

The district court used the Seventh Circuit’s Santiago proffer process and preliminarily admitted Arroyo’s recorded statements to Link (the cooperator). On post-verdict review, the court reaffirmed that Weiss and Arroyo “worked together to attempt to purchase the support of Senator Link through corrupt means.”

On appeal, the court:

• Applied deferential standards (abuse of discretion for admission; clear error for factual findings on the existence/membership/scope of the conspiracy).
• Held that Link’s role as a government informant did not bar admission of Arroyo’s statements because the conspiracy was between Weiss and Arroyo. Under Mahkimetas, a conspirator’s statements to an informant may be admitted against a co-conspirator if made during and in furtherance of the conspiracy.
• Found ample circumstantial evidence: regular payments from Weiss’s company to Arroyo’s firm; Arroyo’s relentless advocacy; the August 2 and August 22 meetings; the blank-payee check from Weiss’s company completed to “Katherine Hunter,” a fictitious payee supplied by the FBI; Weiss’s subsequent email of draft legislation; and Weiss’s knowledge of “Katherine Hunter” despite her being fictitious.
• Deemed Arroyo’s assurances to Link (compensation “the same way” Arroyo was paid) as recruitment/advancement statements in furtherance of the conspiracy (Cruz-Rea).

3) “Official Act” Jury Instruction: No plain error in identifying “promoting the enactment of legislation” as an official act when paired with McDonnell-compliant limitations

The district court instructed jurors that “promoting the enactment of legislation related to the sweepstakes industry by the Illinois General Assembly is an official act,” and immediately cautioned that mere meetings, hosting events, or phone calls are not official acts (tracking McDonnell). Weiss, under plain-error review, argued this invaded the jury’s role and was overbroad, relying heavily on the Fourth Circuit’s Lindberg.

The Seventh Circuit:

• Observed that McDonnell itself supplied concrete examples of “official acts”—suggesting courts may identify qualifying actions in instructions when appropriate.
• Noted other circuits have recognized that quintessential legislative functions (like voting) indisputably are “official acts” (Burnette, Roberson).
• Distinguished Lindberg on multiple grounds:
  • Granularity: “Promotion” of legislation is broader and more context-dependent than a binary, administrative reassignment decision; the jury still had work to do determining what “promotion” occurred and whether it exceeded mere access-providing acts.
  • Litigation posture: In Lindberg, the trial court barred argument that the act was not “official.” Here, Weiss was free to argue—and did argue—that no official act occurred.
• Emphasized the plain-error standard: Weiss did not demonstrate that the single sentence affected the outcome, given the companion McDonnell limitation, the evidence (e.g., pushing to amend a comprehensive gaming statute), and defense arguments.

Bottom line: While not announcing a blanket rule, the Seventh Circuit held that—on these facts and under plain-error review—telling jurors that “promoting the enactment of legislation” can constitute an official act, coupled with the McDonnell carve-outs, is not reversible error.

4) Sentencing: Apply current Guidelines; no obligation to delay for pending amendments; upward variance was reasonable

The court rejected Weiss’s claim that the district judge ambiguously applied future Guidelines or punished him for not waiting. The record showed the judge:

• Applied the Guidelines in effect at sentencing (yielding 51–63 months).
• Expressly considered forthcoming amendments as mitigators under § 3553(a) but did not apply them retroactively.
• Denied a continuance to await amendments, noting the practical and administrative pitfalls of deferring sentencing for possible changes.
• Imposed a 66-month sentence, explaining the upward variance in terms of specific deterrence (concern Weiss had not internalized the criminality and might reoffend), general deterrence (public corruption concerns), Weiss’s greater expected gain relative to Arroyo, and the fact that Weiss was convicted on seven counts while Arroyo pleaded to one.

This was neither procedurally erroneous nor substantively unreasonable.

Impact

• Official-Act Instructions Post-McDonnell
  • Trial courts in the Seventh Circuit have guidance that they may, consistent with McDonnell and under appropriate circumstances, identify certain categories of conduct—such as promoting legislation—as capable of constituting official acts, so long as they also instruct jurors that mere access-providing acts are insufficient.
  • Defense counsel should preserve specific objections and propose pinpointed alternative instructions to avoid plain-error review. If preserved, a future case might test the boundaries more sharply than this plain-error disposition.
• Miranda and Warrant Stops
  • Law enforcement: Telling a suspect they are not under arrest, avoiding restraints, and selecting a public location can support a non-custodial finding, even when a search warrant will be executed later.
  • Defendants: A roadside interview inside an agent’s vehicle is not automatically “custodial.” Statements made in such settings may be admissible absent Miranda warnings if the overall circumstances do not convey restraint akin to formal arrest.
• Conspiracy and Cooperator Conversations
  • Rule 801(d)(2)(E) remains robust in the Seventh Circuit. Statements made to a cooperator are admissible if the conspiracy is between the defendant and the declarant, and the statements further the scheme (including recruitment and assurances of payment).
• Sentencing Practice
  • District courts are not required to postpone sentencing to await pending Guidelines amendments. They should apply the current Guidelines and may consider impending changes under § 3553(a). Litigants seeking a delay face an uphill battle absent exceptional circumstances.
• Appellate Preservation
  • Weiss’s waiver of the phone-suppression issue at oral argument underscores the importance of preserving and clearly articulating appellate claims. Precision matters, both in briefing and at argument.

Complex Concepts Simplified

• Miranda “Custody”
  • Warnings are required only if a suspect is both in custody and interrogated. Custody = a reasonable person would not feel free to end the interview and leave. Factors: location, duration, restraints, what officers said, and what actually happened.
• Consensual Encounter
  • An interaction with police that a person is free to end at any time. Such encounters do not trigger Fourth Amendment scrutiny.
• Rule 801(d)(2)(E) and the Santiago Proffer
  • Co-conspirator statements offered against a defendant are admissible if the government shows a conspiracy existed, the declarant and defendant were members, and the statement was made during and in furtherance of the conspiracy. The Seventh Circuit often uses a pretrial “Santiago proffer,” allowing the judge to preliminarily admit such statements subject to proof at trial.
• “Official Act” (after McDonnell)
  • An official’s decision or action on a specific “question, matter, cause, suit, proceeding, or controversy.” Setting up a meeting, hosting an event, or placing a call is not itself an official act unless it is part of influencing an actual decision on a specific matter.
• Plain Error
  • A demanding standard of appellate review applied when an argument differs from or goes beyond what was raised below. The error must be obvious and must have affected the outcome and the fairness or integrity of the proceedings.
• 18 U.S.C. § 3553(a) Sentencing Factors
  • A list of considerations guiding sentencing: the nature of the offense, the defendant’s history and characteristics, deterrence, protection of the public, avoiding unwarranted disparities, and more. Judges may consider impending Guidelines amendments as part of these factors, but must apply the Guidelines in effect at sentencing.
• “Trailer Bill” in Legislation
  • A follow-on bill that amends an already-enacted statute, often used to fine-tune or add provisions after passage of a comprehensive law.

Conclusion

United States v. Weiss is a consequential Seventh Circuit decision knitting together several strands of contemporary federal criminal law. First, it reinforces that Miranda custody remains a fact-specific inquiry: even when agents plan to execute a warrant, an interview may be non-custodial if the setting and agent conduct do not resemble formal arrest. Second, it underscores the vitality of Rule 801(d)(2)(E) in public corruption cases, clarifying that statements to a cooperator are admissible when the conspiracy is between other actors and the statements further that conspiracy. Third, it provides pragmatic guidance for “official act” jury instructions in the post-McDonnell era: a court may identify “promoting the enactment of legislation” as an official act when paired with instructions that exclude mere access-providing activities, at least under plain-error review. Finally, it confirms that district courts are not required to delay sentencing to await potential Guidelines amendments; applying the current Guidelines and then considering impending changes within the § 3553(a) analysis is permissible and prudent.

For prosecutors and trial courts, the opinion offers a roadmap for structuring corruption trials and instructions that accord with McDonnell while capturing core legislative decision-making. For defense counsel, it is a reminder to preserve granular objections to jury instructions and suppression issues to avoid the rigors of plain-error review and inadvertent waivers. And for sentencing, it stabilizes practice by declining to impose a duty to await uncertain Guidelines changes, while endorsing thoughtful consideration of imminent amendments as part of individualized sentencing.

In sum, Weiss meaningfully refines Seventh Circuit law on official-act instructions, conspirator statements to informants, Miranda custody in warrant-stop contexts, and the timing of sentencing in light of evolving Guidelines—doctrines that will recur in public corruption and white-collar prosecutions across the circuit.