                                In the

    United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
Nos. 15-3830 and 16-1471
UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,

                                   v.

DAVID JOHNSON and REGINALD T. WALTON,

                                               Defendants-Appellants.

                      ____________________

         Appeals from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
          No. 13-CR-00104 — William T. Lawrence, Judge.
                      ____________________

  ARGUED FEBRUARY 6, 2017 — DECIDED NOVEMBER 3, 2017
               ____________________

   Before ROVNER and WILLIAMS, Circuit Judges, and CONLEY,
District Judge.*
   WILLIAMS, Circuit Judge. The Indianapolis Land Bank was
created to improve the quality of life in Indianapolis neigh-
borhoods by returning tax-delinquent and other troubled

   * Of the Western District of Wisconsin, sitting by designation.
2                                       Nos. 15-3830 and 16-1471

properties into productive use. But, in 2011, Reginald Walton,
the manager of the Land Bank, began scheming with others,
including David Johnson, to use the Land Bank as a personal
piggy bank by orchestrating the sale and resale of the City’s
properties through a nonprofit loophole and pocketing the
profits. The total loss to the city was $282,782.38. For their role
in this scheme, Johnson and Walton were indicted and found
guilty of honest services wire fraud, wire fraud, and conspir-
acy to engage in money laundering. Walton was also con-
victed of receiving bribes.
    On appeal, Walton and Johnson challenge the sufficiency
of the evidence, arguing that the government failed to prove
that either Walton or Johnson had the requisite intent for a
fraud conviction. We find the government provided substan-
tial evidence that Walton and Johnson had specific intent, in-
cluding evidence of kickbacks and making false statements.
Walton and Johnson also challenge their money laundering
convictions, but there was sufficient evidence to support
those convictions as well.
    Walton also challenges the district court’s jury instruc-
tions, arguing that the court’s instruction on 10 U.S.C. § 666
permitted the jury to convict him of accepting a gratuity and
not a bribe, and that § 666 should only permit conviction for
bribes. We find no clear error in the § 666 instruction. The
court’s instruction and record evidence made clear that Wal-
ton was convicted for accepting bribes, not gratuities, and we
decline Walton’s invitation to overturn precedent to recon-
sider the construction of § 666. Johnson and Walton’s assertion
that the district court erred by failing to provide a good faith
instruction is also incorrect. Their convictions required proof
Nos. 15-3830 and 16-1471                                      3

of their bad intent (specific intent to commit fraud), so a good
faith jury instruction was unnecessary.
    Finally, Walton and Johnson challenge their sentences.
Both were subject to a sentencing enhancement because their
offenses involved a public official in a high-level decision-
making position (Walton). We find this enhancement was
proper, because as the manager of the Land Bank, Walton was
in a sensitive position. We also find no error in the district
court’s decision to enhance Walton and Johnson’s sentences
because they victimized vulnerable families.
                   I.      BACKGROUND
   A. The Land Bank
    In 2011, Reginald Walton was the manager of the Indian-
apolis Land Bank, a public agency authorized by Indiana law
to acquire abandoned, tax delinquent, and other problem
properties. Walton’s official title was Assistant Administrator
for the Department of Metropolitan Development (“DMD”),
but his specific position gave him primary authority over ac-
quiring and selling properties in the Land Bank. Once a prop-
erty was in the Land Bank, Walton was responsible for getting
it sold. He drafted resolutions that instructed when and to
whom the properties would be sold. The resolutions he
drafted were reviewed by his direct supervisor, Jennifer Fults,
and submitted to the Metropolitan Development Commission
(“MDC”), where they were usually approved without ques-
tion. Once the MDC approved a transaction, Walton had his
team draft the deed and sales disclosure on behalf of the
DMD, and ultimately the Land Bank conveyed the property
as Walton proposed and he signed on behalf of the City.
4                                      Nos. 15-3830 and 16-1471

    Under the state laws regulating the Land Bank, there were
two ways for Land Bank property to be sold. If property was
sold to a for-profit entity or private buyer, two appraisals had
to be prepared, and the property could then be offered in a
public sale at a minimum price of the average of the two ap-
praisals. A secondary process was available only for nonprofit
organizations that met specified criteria. A nonprofit was eli-
gible to purchase through the second process if it had been in
existence for at least one year, had the mission of housing, and
aimed to benefit people with low to moderate incomes. Eligi-
ble nonprofits could purchase Land Bank properties for set
rates of $2,500 if the property had a clean title or $1,000 if the
property did not have a clean title. No appraisal was required,
nor was a public sale. But, because of the criteria, few non-
profits were qualified to take advantage of the lower pricing
scheme. There was no prohibition on eligible nonprofits re-
selling their acquired properties.
    B. Walton’s Land Bank Transactions
    For some time, Walton operated the Land Bank as it was
intended. However, in May 2011, Walton met Aaron Reed, a
laid off graphic designer who was seeking financial opportu-
nities in real estate. At the meeting, Walton explained that he
ran the City department that oversaw abandoned homes.
Reed and Walton discussed the Land Bank as an opportunity
to make money. Soon thereafter, Reed established Naptown
Housing Group (“Naptown”), a property development com-
pany and went into business with Walton. The two spoke with
an accountant who suggested that Walton start a consulting
firm to handle his private real estate deals. However, Walton
Nos. 15-3830 and 16-1471                                                5

rejected this idea because of conflicts with his work and his
marital problems. Walton wanted to remain a silent partner.
     That’s how the scheme began. Walton then started to iden-
tify valuable properties in the Land Bank and invited select
nonprofit organizations to purchase these properties for ei-
ther $1,000 or $2,500. He worked with nonprofits that he knew
would immediately transfer the properties back to Reed, Nap-
town, or a chosen private buyer and turn over the profits of
the sales. Once the property was purchased for $1,000 or
$2,500, Naptown either sold the property to a private buyer,
renovated it for sale, or prepared it as a rental. Reed’s profit
margin was high and, as agreed upon, he paid half of the prof-
its to Walton in cash.
    The first properties Reed and Walton partnered to sell in-
volved 2806 and 2810 Delaware. Walton told Reed that the
properties had generated interest from potential buyers, and
they agreed to sell it together and split the profit. The prop-
erty was purchased through TM&J Youth Foundation, a non-
profit operated by Shela Amos, which paid $2,501 for 2806
                                              1
Delaware and $601 for 2810 Delaware. Naptown then resold
the property in a $65,000 cash deal. For his part in the deal,
Reed gave Walton $27,500 cash. Walton said he had to be paid
in cash due to his position with the City. Reed gave money to
Walton as a “kickback” for “push[ing] the property through
his department” at the DMD. Reed knew they were breaking
the law.

    1 The combined price of the two properties was lower than the stand-
ard nonprofit rate for both properties because one was a parking lot.
6                                         Nos. 15-3830 and 16-1471

    Reed and Walton’s partnership continued with the sale of
at least ten additional Land Bank properties, including the
sales of 3905 North Carrollton Avenue, 3253 and 3249 North
Ruckle Street, and the “Indianapolis duplexes,” four sets of
duplexes on Indianapolis Avenue. Reed testified that Walton
gave him “right–to-enter forms” for properties they intended
to purchase, so that Reed could inspect them before buying.
While they made profit from each of their sales, some of the
properties Reed and Walton bought were still owned by Nap-
town with plans to rent or sell when Reed and Walton’s arrests
ended the scheme.
    In addition to working with Reed, Walton also began
working with John Hawkins, a former Special Assistant to the
Mayor of Indianapolis and a project manager at the DMD.
Hawkins noticed Walton was getting money back for helping
people. When he asked about it, Walton told him that they
were “love offerings.” Hawkins asked to get involved, and he
did. Hawkins brought at least two potential buyers to Walton.
In one of the sales, the buyer paid Walton and Hawkins $7,200
cash before the property was transferred from MDC to the co-
operating nonprofit. In text messages referencing this deal,
Walton indicated that if there were any “heat” from the MDC,
he would be able to handle it. Walton gave Hawkins $1,600
cash for bringing in the deal.
    Walton also had dealings with Randall Sargent and under-
                                    2
cover FBI agent “Jay Foreman.” Walton helped Sargent buy
six properties from the Land Bank in exchange for a “top shelf
fee” for ushering the properties through the Land Bank. Once

    2 Foreman testified using his undercover name as he is involved in
other ongoing investigations.
Nos. 15-3830 and 16-1471                                      7

the DMD transferred the properties to a nonprofit Sargent op-
erated, Sargent gave Walton a blank $500 money order. Fore-
man also sought to acquire Land Bank property through Wal-
ton and agreed to “take care of” him for pushing property
through the DMD. Walton showed Foreman some Land Bank
properties and told him about his dealings with Aaron Reed.
Walton also told Foreman that he did government consulting
and received kickbacks for his help. Walton accepted $500
from Foreman, and told Foreman he would go to his office
and start working on a deal.
   C. Johnson and IMAC’s role
    Some of the nonprofits Walton and Reed used for their ear-
lier real estate transactions became unavailable, so they incor-
porated a new partner, David Johnson. Johnson ran the Indi-
anapolis Minority Aids Coalition (“IMAC”), an eligible non-
profit purchaser under the Land Bank rules, and he quickly
became a necessary part of the scheme. Walton knew Johnson
through Johnson’s earlier work with the City and recruited
him to help acquire properties.
    Reed and Walton went to Johnson’s office to propose the
partnership. They told Johnson how the process worked, and
explained that they would split proceeds. Reed and Walton
told Johnson there was an additional party, a broker. But, this
was a lie allowing Walton and Reed to receive a larger portion
of the profits. Walton and Reed emphasized Walton’s position
with the City, and warned Johnson it was important not to
disclose their dealings. Johnson agreed to become involved,
and he began using IMAC to acquire Land Bank properties to
sell for profit for Walton and others involved in the scheme.
8                                     Nos. 15-3830 and 16-1471

    On their first deal, Walton and Reed intended to sell a
property to a private buyer for $17,500. The property was sold
to IMAC, then to the private buyer. Johnson took $2,500 to
cover IMAC’s purchase cost, retained an additional $1,000 for
himself, and then wrote a $14,000 check to Naptown, falsely
indicating on the IMAC check that the money was for a grant.
On the second deal, Walton and Reed purchased a property
that had garnered interest from investor groups. Walton or-
chestrated the sale to IMAC, but used his position to defer the
City’s collection of the property purchase price. IMAC never
paid the City for the property. However, Reed paid Johnson
for serving as a middleman. On the third deal, Walton ob-
tained approval of another property, and again got the City to
defer IMAC’s payment for the property. The property was
sold for $12,500 and Johnson retained $1,500 to pay DMD for
IMAC’s purchase, retained $1,000 for himself, wrote Naptown
a $5,500 check, and paid Walton a $4,500 cash kickback.
    Johnson was also integral in the Land Bank property sales
involving John Hawkins. In each of those transactions, IMAC
served as the middleman nonprofit buyer. In fact, on the day
the City transferred a property at 3516 Salem Street to IMAC
at the arrangement of Walton and Hawkins, Johnson wrote an
IMAC check to Hawkins for $1,000 which falsely indicated
that the payment was for “Payroll: Consulting: 2013 Gala.”
Hawkins never performed any consulting work for an IMAC
gala in 2013. Johnson later sold the property to a private de-
veloper for $8,000.
    D. Amos Fraud Victims
   In August 2012, the Marion County Prosecutor’s Office
charged Sheila Amos with fraudulently selling properties she
did not own to unsuspecting victims, mostly poor Hispanic
Nos. 15-3830 and 16-1471                                      9

families who spoke little or no English. Some of the properties
Amos “sold” were actually properties in the Land Bank, and
the prosecutor and two detectives on the case approached the
City about helping the victims remain in these properties.
They met with Walton, and he agreed on behalf of the City to
arrange for some of the victims to purchase and stay in their
homes (those owned by the Land Bank). At a later meeting,
Walton told the Amos victims that they would be able to pur-
chase their homes for either $1,000 or $2,500 through a non-
profit.
    Walton pushed a sale of the properties through IMAC to
get the nonprofit price of $1,000 for each property. At closing,
however, Walton told the victims the price for each property
was $4,000, and must be paid in cash. When asked why the
price had increased, Walton said that the difference was
meant to benefit IMAC. However, after the purchase, Johnson
kept a portion of the money and paid the rest to Walton.
   E. Indictment and Trial
    On May 14, 2013 the government filed an eight-count in-
dictment naming Walton, Johnson, Reed, Hawkins, and Sar-
gent. A week later, the defendants were arrested. On October
16, 2013, an eleven-count Superseding Indictment was filed.
Counts 1-4 alleged honest services wire fraud by all of the de-
fendants, Count 5 alleged additional wire fraud by Walton
and Johnson in connection with the Amos fraud victims,
Counts 6-10 alleged that Walton received bribes, and Count
11 alleged that Walton and Johnson conspired to commit
money laundering.
   Reed, Hawkins, and Sargent each pled guilty and testified
against Walton and Johnson as government witnesses. After
10                                     Nos. 15-3830 and 16-1471

an eleven-day trial, the jury found both Walton and Johnson
guilty. Walton was convicted on Counts 1-5, 8, 10, and 11, and
was sentenced to 108 months in prison, which was below the
guidelines range of 135-168 months. Johnson was convicted
on Counts 2, 3, 5, and 11 and sentenced to 66 months, which
was below the guidelines range of 87-108 months. On appeal,
they challenge the sufficiency of the evidence supporting
their convictions, the jury instructions, and their sentences.
                        II. ANALYSIS
     A. Sufficient Evidence for Honest Services Fraud, Wire
        Fraud, and Money Laundering Convictions
    Appellants raising insufficiency challenges face “a nearly
insurmountable hurdle.” United States v. Tucker, 737 F.3d
1090, 1092 (7th Cir. 2013) (quoting United States v. Pulido, 69
F.3d 192, 205 (7th Cir.1995)). We review a trial court’s ruling
on a Rule 29 motion de novo, asking only “whether evidence
exists from which any rational trier of fact could have found
the essential elements of a crime beyond a reasonable doubt.”
United States v. Doody, 600 F.3d 752, 754 (7th Cir. 2010). Rever-
sal under this standard is rare because we defer heavily to the
jury’s findings and review evidence in the light most favora-
ble to the government. Id. We reverse only where “no rational
trier of fact could have found the defendant guilty… .” Id.
           1. Evidence of Walton’s Intent
    For a conviction of wire fraud, the government was re-
quired to prove that Walton was “(1) involved in a scheme to
defraud; (2) had an intent to defraud; and (3) used the wires
in furtherance of that scheme.” United States v. Weimert, 819
F.3d 351, 355 (7th Cir. 2016) (quoting United States v Faruki,
803 F.3d 847, 852 (7th Cir. 2015)). Evidence proves intent
Nos. 15-3830 and 16-1471                                        11

where it shows that a defendant acted “with the specific intent
to deceive or cheat, usually for the purpose of getting finan-
cial gain for one's self or causing financial loss to another.” Id.
at 355 (quoting Faruki, 803 F.3d at 853).
   Walton argues there is no evidence he had the specific in-
tent to commit fraud. He argues he was “a little cog in a big
machine” and could not acquire property from the Land Bank
without his resolutions being reviewed and approved by his
superiors and the DMD. He claims that he was under pres-
sure to get Land Bank properties sold and selling through
nonprofits was beneficial to the City. He also asserts that there
was absolutely nothing wrong with a for-profit company buy-
ing property from a nonprofit, and highlights evidence that a
few coworkers purchased property from the Land Bank. He
concludes that the evidence shows he did not get paid for do-
ing anything he would not otherwise do.
   Even if Walton were able to paint some interpretation of
the facts that would render him without fraudulent intent, he
would not be entitled to relief. We do not review evidence to
determine whether any rational factfinder could have de-
cided in favor of a defendant. The standard demands that we
find whether a reasonable juror could find guilt. Considering
the evidence in the light most favorable to the government,
the answer to that question is overwhelmingly yes.
    The government offered extensive evidence that Walton
intended to commit fraud. At trial, Walton admitted he in-
tended to earn money from Land Bank sales. He admits in his
brief that he knew profiting from the sales of Land Bank prop-
erties was “questionable ethically,” which is why he got paid
in cash and tried to be the silent partner. But, he claims that
he did not know his actions were illegal. However, a mistake
12                                     Nos. 15-3830 and 16-1471

of law is not a defense to honest services fraud. United States
v. Blagojevich, 794 F.3d 729, 738-39 (7th Cir. 2015). Walton’s
Land Bank scheme partners testified with details about each
of the Land Bank transactions Walton pushed through. The
jury was well within reason to infer from this evidence that
Walton knew he was cheating “for the purpose of getting fi-
nancial gain for [him]self” and intended to commit fraud.
Weimert, 819 F.3d at 355. We find no reason to question the
jury’s verdict for want of evidence.
    Walton also argues that honest services fraud requires
proof of a quid pro quo, and that a mere breach of a fiduciary
duty is not enough to support his conviction. While a correct
statement of law, this argument fails to undermine Walton’s
conviction. In Skilling v. United States, 561 U.S. 358 (2010), the
Supreme Court made clear that an honest services fraud pros-
ecution requires proof of a kickback or bribe. This Circuit has
followed that directive. See Weimert, 819 F. 3d at 367; see also
United States v. Nayak, 769 F.3d 978, 980–81 (7th Cir. 2014) (af-
firming mail fraud conviction of doctor who paid bribes and
kickbacks to encourage referrals); see also United States v.
Vrdolyak, 593 F.3d 676, 678 (7th Cir. 2010) (explaining guilty
plea based on hidden kickback from buyer to seller's director).
    But here, Walton’s argument fails because the govern-
ment’s case against Walton showed a straightforward quid pro
quo scheme. Walton intended to deprive the City of his honest
services by accepting bribes and kickbacks from third-party
partners who relied on Walton to facilitate transfers of valua-
ble Land Bank properties at low cost. These actions estab-
lished a violation of 18 U.S.C. §§ 1343 and 1346. See Skilling,
561 U.S. at 404 (“[F]raudulent schemes to deprive another of
honest services through bribes or kickbacks supplied by a
Nos. 15-3830 and 16-1471                                     13

third party who has not been deceived” violate 18 U.S.C.
§§ 1343 and 1346); see also Hawkins, 777 F.3d. at 883–84 (“A
plan to take money in exchange for an official act constitutes
a scheme to defraud.”). Evidence of an illegal quid pro quo was
abundant. At least three individuals who paid kickbacks,
Reed, Sargent, and Hawkins, detailed how Walton sought,
and was paid, cash kickbacks. Influenced by these kickbacks,
Walton would draft resolutions assuring his partners could
acquire Land Bank properties at nonprofit prices. Walton’s
supervisors testified that Walton did not disclose his self-
dealing to the City, despite being a trusted City employee.
This evidence allowed a reasonable jury to infer an intentional
quid pro quo.
    Walton also challenges his conviction for wire fraud
(Count Five), arguing that the details of the transaction were
disclosed and the fraud stemmed from the fraud of Sheila
Amos. The evidence underlying this count reflected that Wal-
ton and Johnson worked with the Marion County Prosecu-
tor’s office to secure low-priced homes for individuals who
risked homelessness and had been victims of a fraud by Sheila
Amos (the “Amos Victims”). Walton told the Amos Victims
they would be able to obtain the properties for $1,000 and ar-
ranged for Land Bank properties to be sold through IMAC.
However, at the last minute he and Johnson told them the
properties cost $4,000 each. Walton and Johnson pocketed
$3,000 from each sale.
    Walton argues that all of the terms of this transaction were
disclosed and the “only fact… omitted was the full negotia-
tion position of the parties, in that Mr. Walton would not gain
anything on the transaction.” There is no question Walton in-
tended to benefit from the inflated price of the Amos Victim’
14                                     Nos. 15-3830 and 16-1471

properties, and this constituted fraud. Walton was not sup-
posed to be a party to the transaction. Cf. Weimert 819 F.3d. at
367–68 (finding no fraud where there was no undisclosed self-
dealing and all parties were aware of the defendant’s conflict
of interest). He, together with Johnson, purposefully swin-
dled the Amos Victims for personal gain. So, there was suffi-
cient evidence underlying this conviction.
          2. Evidence of Johnson’s Intent
    Johnson also argues that the government failed to provide
evidence of his intent. As we have noted, “[i]t is exceedingly
difficult to win on this basis, once a jury has weighed the evi-
dence and found guilt beyond a reasonable doubt.” United
States v. Dingle, 862 F.3d 607, 614 (7th Cir. 2017). Because John-
son focuses on intent, this “makes our job relatively easy.” Id.
We review whether any rational trier of fact could have found
intent based on the government’s evidence. Id. (quoting Jack-
son v. Virginia, 443 U.S. 307, 319 (1979).
    A reasonable juror could conclude that Johnson intended
to engage in fraud. Such a conclusion was supported by testi-
mony that Johnson knew the Land Bank properties belonged
to the City, knew Walton’s position with the City and poten-
tial conflicts, paid Walton a $4,500 cash kickback, and partici-
pated and personally benefitted from Land Bank property
sales. Evidence also showed that he made at least one large
deposit into his personal bank account and purchased a Volvo
with ill-gotten gains. He actively concealed the scheme by
writing false entries in the memo line of kickback checks and
removing Walton’s name from property lists he forwarded to
potential purchasers. While Johnson asks us to disregard gov-
ernment witness Reed’s testimony and consider evidence
Nos. 15-3830 and 16-1471                                     15

which he claims shows his lack of intent, the standard of re-
view does not permit us to do so. Determining credibility of
witnesses and weight of the evidence is the prerogative of the
jury. While we acknowledge that IMAC’s mission, serving
AIDS and HIV-afflicted people, is commendable, that is no
reason for us to assume, as Johnson requests us to do, that
Johnson’s sole motivation in the Land Bank scheme was to
help as many AIDS and HIV afflicted people as possible get
subsidized housing. In fact, evidence contradicts this, and a
reasonable juror could reject such an interpretation of the rec-
ord. The jury was reasonable to infer that Johnson had specific
intent.
    Defendants, citing United States v. Pettigrew, 77 F.3d 1500
(5th Cir. 1996), argue that if we vacate their convictions for
fraud, we should also vacate their related money laundering
convictions. But, since we decline to vacate Walton or Jon-
son’s convictions for fraud, we will decline their invitation to
vacate related convictions for money laundering.
   B. No Error in Jury Instructions
    “We have repeatedly held that approval of a jury instruc-
tion in the district court extinguishes any right to appellate
review of the instruction.” United States v. Trudeau, 812 F.3d
578, 589 (7th Cir. 2016), cert. denied, 137 S. Ct. 566 (quoting
United States v. Yu Tian Li, 615 F.3d 752, 757 (7th Cir. 2010)).
Here, when the district court asked defense counsel whether
he had reviewed the district court’s final proposed instruc-
tions and had any objections to these instructions, counsel in-
dicated that he read the instructions and had no objections.
The government argues that this approval waived Walton
16                                     Nos. 15-3830 and 16-1471

and Johnson’s right to now bring a challenge. The defendants
provide no counter to this argument.
    Distinguishing purposeful waiver from negligent forfei-
ture is tricky where, as here, defense counsel approves jury
instructions in a “rote call-and-response colloquy with the
district judge.” United States v. Natale, 719 F.3d 719, 731 (7th
Cir. 2013). Recent decisions in this circuit recognize the harsh-
ness of waiver and hesitate to determine blanket approvals
“knowing and intentional decision[s]” to forego a challenge
without further analysis. Id. at 729 (quoting United States v.
Jaimes–Jaimes, 406 F.3d 845, 848 (7th Cir. 2005); see also United
States v. Ajayi, 808 F.3d 1113, 1121–22 (7th Cir. 2015) (applying
plain error review even though counsel stated “no objection”
during colloquy). Analyzing whether defendants’ approval of
the final instructions was knowing and intentional is further
complicated because they do not provide any argument
against waiver.
    In any event, even if defendants’ challenges were not
waived, they are at the very least forfeited, and we review for-
feited arguments for plain error. United States v. Christian, 673
F.3d 702, 708 (7th Cir. 2012). We find plain error only where
the instructions do not fairly and adequately represent the is-
sues. United States v. Davis, 471 F. 3d 783, 791 (7th Cir. 2006).
Plain error requires an “obvious” error that is “clear under
current law.” Natale, 719 F.3d at 731 (quoting United States v.
McGee, 60 F.3d 1266, 1271–72). We will find plain error only
where the error affected defendant’s substantive rights.
Jaimes-Jaimes, 406 F.3d at 848. Defendants’ challenges fail to
show any error, much less plain error.
Nos. 15-3830 and 16-1471                                       17

          1. Bribery Instruction Not Erroneous
    Walton argues that the jury instructions relating to his 18
U.S.C. § 666 bribery charges were erroneous because they per-
mitted the jury to convict him of accepting a “gratuity” and
not a bribe. The challenged instruction stated that Walton
could be found guilty if he “accepted anything of value from
another person” and “acted corruptly with the intention to be
influenced or rewarded in connection with some transaction
or series of transactions… .” The instruction further clarified
that a “person acts corruptly when that person acts with the
understanding that something of value is to be offered or
given to reward or influence him in connection with his offi-
cial duties.” Walton now asserts that this jury instruction al-
lowed him to be convicted for a “gratuity” offense and argues
we should overturn precedent to hold that 18 U.S.C. § 666 ex-
cludes criminalization of receipt of a gratuity.
    Walton’s “gratuities” argument does not fly as a matter of
law. As Walton acknowledges in his brief, this court has ruled
that the word “reward” in § 666 criminalizes the receipt of
bribes and gratuities. United States v. Hawkins, 777 F.3d 880,
881 (7th Cir. 2015) (“§ 666 forbids taking gratuities as well as
taking bribes.”). So, the district court’s instruction, even if it
permitted conviction for taking a gratuity, certainly was not
clearly erroneous under current law.
    Further, the jury instruction Walton challenges did not, in
fact, permit conviction based on a gratuity. Walton makes a
long argument focused on the word “reward” in the jury in-
struction and argues that “reward” could be read to constitute
a gratuity offense separate from a bribery offense. He argues
against such a construction of the statute. Citing United States
v. Anderson, 517 F.3d 953 (7th Cir. 2008), Walton highlights
18                                      Nos. 15-3830 and 16-1471

that unlike a gratuity, a bribe must be made with a corrupt
purpose, such as inducing a public official to influence his of-
ficial action. He also notes that the penalty for gratuities (un-
der § 201) is significantly lower than potential penalties under
§ 666. And, he argues that this court should explicitly exclude
gratuity offenses from § 666 and only criminalize bribery.
    However, the challenged instruction did not criminalize
gratuities. To the contrary, the challenged instruction made
Walton’s conviction contingent on whether he “acted cor-
ruptly with the intent to be influenced… .” In other words, the
jury instructions permitted conviction only if the jury found
Walton had accepted bribes. Walton’s attack on a hypothet-
ical “gratuities” instruction lacks any merit, and we need not
entertain it.
    Walton’s argument is also inconsistent with the facts of
this case. The evidence at trial exposed Walton’s receipt of
kickbacks (bribes), not gratuities. The record established that
Walton passed specific properties through specific channels
at specific times to chosen parties for the purpose of getting a
prearranged payment. Walton again asserts that these were
not bribes, because he did not do anything he would not oth-
erwise have done. We disagree. Evidence indicates that Wal-
ton steered properties toward partners who promised pay-
ments in favor a person who would not. Because Walton’s in-
tent to be paid for his official acts existed before he transferred
Land Bank properties, this is simply not a gratuities case.
           2. Good Faith Jury Instruction Not Required
   Both Walton and Johnson argue that they were entitled to
a “good faith” jury instruction, which they claim was their
Nos. 15-3830 and 16-1471                                      19

theory of defense. Neither defendant can show any plain er-
ror here. Seventh Circuit precedent, including the case cited
by defendants, United States v. Manjarrez, 258 F.3d 618 (7th
Cir. 2001), makes clear that it “is unnecessary to give a par-
ticular defense instruction if its essential points are covered
in another instruction.” Id. at 626. A good faith instruction is
not required where lack of good faith is part of the charge.
United States v. Kokenis, 662 F.3d 919, 930 (7th Cir. 2011). Be-
cause Johnson and Walton were convicted of crimes that re-
quired the jury to find bad faith, and specifically the intent to
commit fraud, they were not entitled to an additional in-
struction for good faith.
   C. No Errors in Sentencing
    Walton and Johnson both bring challenges to the sen-
tences they were given in the district court. A district court’s
legal interpretation of the sentencing Guidelines is reviewed
de novo, and factual findings are reviewed for clear error.
United States v. Hayes, 872 F.3d 843, 845 (7th Cir. 2017) (quot-
ing United States v. Harris, 718 F.3d 698, 703 (7th Cir. 2013).
Both of the challenges brought by defendants are based on
fact, so we review for clear error. Because Johnson’s counsel
did not object to his sentencing enhancements in the district
court, his claim on appeal is reviewed for plain error. Id. at
847.
          1. Enhancement for Walton’s Sensitive Position
             Not Erroneous
    The defendants first argue that the district court erred by
enhancing their sentences based on Walton’s role as a public
official in a high-level decision making process. Whether an
individual is a public figure in a high-level decision making
20                                    Nos. 15-3830 and 16-1471

or sensitive position is a factual determination, reviewable for
clear error. See Hawkins, 777 F.3d at 884-85.
    The sentencing guidelines provide that “if the offense in-
volved an elected public official or any public official in a
high-level decision making or sensitive position, increase by
4 levels.” U.S.S.G. § 2C1.1(b)(3). Application Note 4 to § 2C.1
states that “[h]igh level decision-making or sensitive position
means a position characterized by a direct authority to make
decisions for, or on behalf of a government, department,
agency, or other government entity, or by a substantial influ-
ence over, the decision making process.” At Walton’s sentenc-
ing hearing, the district court found that “Walton had sub-
stantial influence over the decision-making process of the
Land Bank based upon [its] review of the testimony.” The
court further found that “[t]he fact that others could review
Mr. Walton’s decision does not negate the fact that he held a
sensitive position.” Analogizing this case to United States v.
Hill, 645 F.3d 900, 906-07 (7th Cir. 2011), the district court
found that Walton was in a sensitive position under U.S.S.G.
§ 2C1.1(b)(3), and applied this enhancement to both Walton
and Johnson’s sentences.
    We find no clear error here. Walton was the director of the
Land Bank, and in that capacity he had an inordinate amount
of discretion over the transfer of Land Bank properties. He
started and oversaw the process, drafted the resolutions that
were rarely questioned, and generally determined who
would acquire the City’s properties and whether the sale
would be through a cooperative nonprofit like IMAC. Even
though Walton was not the top of the DMD organizational
chart, he was one of 16-20 assistant administrators. While he
had supervisors that technically outranked him, his authority
Nos. 15-3830 and 16-1471                                                    21

over the Land Bank was unique, and he certainly had substan-
tial influence over the decision making process.
    The district court was correct to analogize this case to Hill,
645 F.3d at 906-07. In Hill, the deputy liquor commissioner in
East St. Louis (named Hill), was given the ability to accept and
review applications for liquor licenses and conduct back-
ground checks by the mayor. Id. at 904. The mayor had the
ultimate authority for the issuance and renewal of liquor li-
censes, and in Hill’s position, he could not establish policy,
did not supervise other employees, and was subject to the
mayor’s supervision. Such factors did not foreclose a finding
that a sentencing enhancement should apply. The district
court acknowledged that while Hill did not have a particu-
larly high-level position, he held a sensitive post and had
“substantial influence over the licensing process.” Id. at 907.
The same can be said for Walton’s position at the Land Bank.
While Walton did not have a high rank or title within the City,
he drafted resolutions recommending transfers of Land Bank
properties to specific buyers for specific prices at specific
times. Walton did not have overt influence over his superiors,
but his resolutions were scarcely scrutinized, giving him de
facto control over how and to whom Land Bank Properties
were sold. The record supports that Walton’s position was
sensitive, so the district court’s application of an enhancement
                                                                       3
pursuant to U.S.S.G. § 2C1.1 was not clearly erroneous.

    3 We review for plain error whether the district court made a sentenc-
ing error as to Johnson. The plain error standard is more deferential to the
district court than clear error analysis, and because we find that the de-
fendants’ challenge to the district court’s application of U.S.S.G. § 2C1.1
fails to demonstrate clear error, it certainly fails under plain error analysis
as well.
22                                     Nos. 15-3830 and 16-1471

           2. Amos Victims Were Vulnerable Victims
   The defendants also argue that the district court erred by
applying the “vulnerable victim” enhancement of U.S.G. §
31A1.1(b)(I). A “vulnerable victim” is a victim who is “partic-
ularly susceptible to the criminal conduct.” United States v.
Sims, 329 F.3d 937, 944 (7th Cir. 2003).
    In concluding that the Amos Victims were vulnerable, the
district court stated:
     The victims in this scheme, as we all know, were 14
     Hispanic families who spoke little or no English. Some
     were undocumented … and all had minimal experi-
     ence in conducting real estate transactions in the
     United States … [E]ach had previously been the victim
     of real estate fraud perpetrated by a different person,
     and that made them particularly susceptible to this
     type of fraud … They were told to bring cash, and they
     would only accept cash. Again, the Court heard the tes-
     timony of these individuals and feels that they were in-
     deed vulnerable victims and the two-level enhance-
     ment should apply.
    During the sentencing process, several victims testified re-
garding the extent of the harm they suffered due to the fraud
inflicted upon them. Neither Walton nor Johnson refuted that
they should have known that the Amos Victims were vulner-
able.
    Now, according to the Defendants, the Amos Victims
were not vulnerable because they were afforded the services
of an interpreter through the Marion County prosecutor’s of-
fice and got decent prices on their homes. We disagree. In fact,
the involvement of the prosecutor’s office likely bolstered the
Nos. 15-3830 and 16-1471                                        23

Amos Victims’ trust, making them more susceptible. And, the
so-called decent prices of the homes were 300% higher than
they should have been and higher than the cost originally
quoted by Walton – highlighting the desperation of the fami-
lies to secure a home and avoid homelessness. We find no er-
ror in the district court’s finding of vulnerability.
    The record makes clear that the Amos Victims were vul-
nerable for all of the reasons enumerated by the district court.
They were undocumented, had poor (if any) English fluency,
had been previously victimized, were extremely low-income,
and were facing the threat of homelessness. The defendants
argue that the Amos Victims’ lack of English fluency did not
make them vulnerable. However, we agree with the district
court that the Amos Victims’ poor command of the English
language was one of many factors weighing toward vulnera-
bility. C.f. United States v. Esterman, 324 F.3d 565, 574 (7th Cir.
2003) (finding it was clear error to consider the linguistic fac-
tor in isolation in determining that a savvy businessperson
was a vulnerable victim). Other factors included that they did
not have the bargaining power or real estate sophistication to
negotiate Walton and Johnson’s inflated price and they were
desperate to secure housing for their families. We find no er-
ror in the district court finding the Amos Victims vulnerable
for the purposes of Walton and Johnson’s sentences.
                   III. CONCLUSION
   For the foregoing reasons, the judgment of the district
court is AFFIRMED.


                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0225n.06
                            Filed: March 24, 2009

                                 United States Court of Appeals
                                      FOR THE SIXTH CIRCUIT
                                           ___________

                                           No. 07-5680
                                           ___________

Tammie Thompson, individually and on              *
behalf of the Estate of Jeffrey Odell             *
Thompson (deceased), and as parent                *
and next friend of Destiny Machea                 *
Thompson, a minor, Erica Lynn                     *
Thompson, a minor, and Lee Austin                 *
Thompson, a minor,                                *
                                                  *
       Plaintiff - Appellee,                      *   On Appeal from the United States
                                                  *   District Court for the Middle
       v.                                         *   District of Tennessee
                                                  *
Rutherford County, Tennessee, et al.,             *
                                                  *
       Defendant,                                 *
                                                  *
Rishi K. Saxena,                                  *
                                                  *
       Defendant - Appellant.                     *

Before: KEITH, GRIFFIN, and JOHN R. GIBSON,* Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

       Rishi K. Saxena appeals from the district court's denial of his motion to expunge the record

of a medical malpractice claim filed against him. We affirm the district court's denial of his motion.

       *
       The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
No. 07-5680
Thompson v. Rutherford County, et al.

       Tammie Thompson filed a section 1983 action following her husband's death while

incarcerated at the Rutherford County, Tennessee, Adult Detention Center. Thompson alleged

deliberate indifference to her husband's medical needs when he did not receive his prescribed

medication for a heart condition. Thompson named Dr. Saxena, a physician at the hospital where

Thompson was treated, as a defendant. Dr. Saxena had seen Thompson one time for a hospital

cardiology consultation but had nothing to do with Thompson's failure to receive his medication.

Saxena was never served with a summons or complaint and was voluntarily dismissed from the case

four months later.

       Thompson and Rutherford County eventually settled the suit. Several months after that,

Saxena filed a petition for an order expunging his name from the record. The petition included a

proposed order, agreed to by Thompson's counsel, which would remove Saxena's name from the

court's record wherever "referenced in the Court's file, including in the Complaint and in any

subsequent pleadings, orders or other documents, and in the Court's electronic database." The court

denied the motion without explanation, and this appeal followed.1

       Saxena concedes that there is no federal or state authority which expressly permits or forbids

expungement in this circumstance. Nevertheless, he argues that the district court abused its

discretion in failing to use its equitable power to return him to the position he enjoyed before the

filing of this suit. He contends that this is an extraordinary situation appropriate for expungement

       1
           Thompson's counsel did not file a brief in opposition.

                                                  -2-
No. 07-5680
Thompson v. Rutherford County, et al.

because if his name is not expunged from the record, he will be required to report Thompson's claim

to his insurance company forever and the claim could affect his ability to practice medicine.

       Saxena compares his entitlement to expungement in federal criminal cases which have

indicated that a district court has broad equitable power to expunge a defendant's name from the

record in extraordinary circumstances. See United States v. Doe, 556 F.2d 391, 393 (6th Cir. 1977).

"If the dangers of unwarranted adverse consequences to the individual outweigh the public interest

in maintenance of the records, then expungement may be appropriate." United States v. Janik, 10

F.3d 470, 472 (7th Cir. 1993). Following the Supreme Court's decision in Kokkonen v. Guardian

Life Insurance Company of America, 511 U.S. 375, 377-80 (1994), however, there is substantial

authority that a district court has no jurisdiction to expunge records of criminal convictions based

solely on equitable grounds. See United States v. Coloian, 480 F.3d 47, 51-52 (1st Cir. 2007)

(discussing cases).

       The Sixth Circuit has not addressed the jurisdictional issue, and we need not decide it here

because Saxena has not come close to establishing an extraordinary circumstance. Even those courts

that have recognized an equitable power to expunge have concluded that the power is one of

exceedingly narrow scope, and "the balance very rarely tips in favor of expungement." United States

v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004).

       Saxena's counsel conceded at oral argument that there is "no concrete proof" that Saxena has

been or will be adversely affected by this malpractice claim, just that it would be illogical to rule

otherwise. The possibility of an adverse employment action does not constitute a sufficient interest

                                                 -3-
No. 07-5680
Thompson v. Rutherford County, et al.

to warrant expungement. See id. at 740; see also Scruggs v. United States, 929 F.2d 305, 306 (7th

Cir. 1991). Although Saxena's interests are understandable, we believe they are even less compelling

than those of a criminal defendant. The records of Thompson's suit accurately reflect that Saxena

was named as a defendant and then voluntarily dismissed from the case.

       Saxena also directs us to two Tennessee cases which he says show that Tennessee courts have

granted expungement to medical doctors in similar circumstances. Saxena's argument itself

demonstrates the problem in granting expungement as we have no way of confirming the

circumstances of those cases. "The judicial editing of history is likely to produce a greater harm than

that sought to be corrected." Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972) (per curium).

       For these reasons, the district court did not abuse its discretion in denying Saxena's motion

to expunge the record and we affirm the judgment of the district court.

                                                 -4-
No. 07-5680
Thompson v. Rutherford County, et al.

        KEITH, J., dissenting. Based on the factual record, I can come to no other conclusion than

the district court abused its discretion by failing to expunge Dr. Saxena’s name from the record. The

majority opinion now affirms this glaring error and undeniable injustice.

        The facts at issue in this case are not in dispute. As the majority opinion outlines, Dr. Saxena

only saw Thompson one time for a consultation that had nothing to do with Thompson’s later failure

to receive his medication. Thompson subsequently voluntarily removed Dr. Saxena from the lawsuit

and Thompson’s counsel later agreed to a proposed order that would remove Dr. Saxena’s name

from the court’s record. Despite Dr. Saxena’s clear lack of involvement in the matter at issue in

Thompson’s malpractice lawsuit, Saxena now faces the following potential damages: (1) an increase

in malpractice insurance; (2) a loss of hospital privileges; and (3) a loss of HMO contracts.

        While there are no federal or state civil rights cases directly on-point that permit or prohibit

records from being expunged, it is clear that federal courts have the inherent authority to expunge

records in appropriate circumstances. “It is within the inherent equitable powers of a federal court

to order the expungement of a record in an appropriate case.” United States v. Doe, 556 F.2d 391,

393 (6th Cir. 1977). Federal courts have often exercised this discretion in the criminal context. See

United States v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004) (stating that “district courts do have

jurisdiction to expunge records maintained by the judicial branch”). It is true, as cited in the majority

opinion, that following the Supreme Court’s decision in Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994), several circuits, namely the First, Third, Eighth and Ninth, have found that

district courts do not have ancillary jurisdiction to expunge records of criminal convictions based

                                                  -5-
No. 07-5680
Thompson v. Rutherford County, et al.

solely upon equitable grounds. See United States v. Coloian, 480 F.3d 47, 52 (1st Cir. 2007); United

States v. Dunegan, 251 F.3d 477, 478 (3rd Cir. 2001); United States v. Meyer, 439 F.3d 855, 859-60

(8th Cir. 2006); United States v. Sumner, 226 F.3d 1005, 1014-15 (9th Cir. 2000). Nevertheless, the

Second, Seventh, Tenth and D.C. Circuits have “concluded that district courts do have ancillary

jurisdiction to expunge records based on equitable considerations.” United States v. Coloian, 480

F.3d at 51-52 (footnote omitted) (citing, but attempting to distinguish, United States v. Flowers, 389

F.3d 737, 739 (7th Cir. 2004); United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977);

Livingston v. United States Dep’t of Justice, 759 F.2d 74, 78 (D.C. Cir. 1985); United States v. Linn,

513 F.2d 925, 927 (10th Cir. 1975)). With a circuit split and silence on this issue in our Court, the

case at bar presents an extraordinary circumstance, compelling us to address this jurisdictional issue

and to find that we have ancillary jurisdiction to expunge a record in an appropriate case.

       In contrast, the majority opinion holds that this situation does not constitute an exceptional

circumstance warranting expungement, and states that “[e]ven those courts that have recognized an

equitable power to expunge have concluded that the power is one of exceedingly narrow scope, and

‘the balance very rarely tips in favor of expungement.’” Op. at 3. It is hard to imagine a situation,

outside of one in which a defendant was named purely by accident, that would more fittingly fall

within this narrow exception. If this exception is to have any meaning at all, it must be applied here.

Both parties concede that Dr. Saxena was named by accident, and that he had no part whatsoever in

the circumstances at issue in the malpractice lawsuit. Therefore, to subject him to severe potential

losses -- even if only potential -- and to willingly choose to forego the equitable power we have to

                                                 -6-
No. 07-5680
Thompson v. Rutherford County, et al.

correct this injustice, violates the very integrity of the judicial system, and renders any “equitable

power” we have farcical.

       Applying a balancing test to the facts of the instant case, a method borrowed from the

Seventh Circuit, demonstrates that expunging the record is appropriate here. In Flowers, the Seventh

Circuit held in determining whether an individual’s name should be expunged from the record, that

the court is to review whether, “the dangers of unwarranted adverse consequences to the individual

outweigh the public interest in maintenance of the records,” and if so, “then expunction is

appropriate.” Flowers, 389 F.3d at 739 (citations and quotation marks omitted); see also In re

Twobears, 2007 U.S. Dist. LEXIS 31005, at *8 (W.D. Tenn. April 26, 2007) (stating expunction is

typically only an appropriate remedy “when a defendant is factually innocent and can demonstrate

that the continued public availability of the record will cause great harm that outweighs the public

and governmental interest in maintaining the record.”) (emphasis in original). In this case, Dr.

Saxena faces serious consequences to his professional well-being as a result of the district court’s

and our Court’s refusal to expunge his name from the record. In contrast, there is no harm to the

plaintiff, who agrees that Dr. Saxena’s name should be expunged. Additionally, the government has

not cited any legitimate reason why it needs to maintain information about Dr. Saxena, a mistakenly

named individual, in this lawsuit. This is a much easier case than many presented in the criminal

context where expungement has been allowed. The hard cases are those in which the defendant

seeks expungement because he or she has been rehabilitated and wants a fresh start. See Flowers,

389 F.3d at 738. Here, we have an individual wholly and unequivocally without fault.

                                                 -7-
No. 07-5680
Thompson v. Rutherford County, et al.

       Additionally, even if we were to concede that the majority’s fear about judicial editing was

legitimate, any such negative consequences could be easily mitigated. By merely omitting Dr.

Saxena’s name but retaining the essential facts of the case on the record, we can prevent a mistakenly

named party from suffering potentially debilitating consequences to his professional well-being,

while allowing the judicial branch to maintain what may be considered critical information. Doe,

556 F.2d at 393.

       Why should this man be penalized for a mistake made by others? Accordingly, because this

an extraordinary case where both parties concede that Dr. Saxena was named by accident, I would

reverse the district court’s decision and grant Dr. Saxena’s motion to have his name expunged from

the record.

                                                 -8-


725 F.2d 139
99 Lab.Cas.  P 34,494
NEW ENGLAND APPLE COUNCIL, et al., Plaintiffs, Appellees,v.Raymond J. DONOVAN, Secretary of Labor, Defendant, Appellant.
No. 83-1400.
United States Court of Appeals,First Circuit.
Argued Nov. 7, 1983.Decided Jan. 18, 1984.

Nicholas S. Zeppos, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., William F. Weld, U.S. Atty., Boston, Mass., Leonard Schaitman, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Sofia P. Petters and Richard T. Galgay, Attys., U.S. Dept. of Labor, Washington, D.C., were on brief, for defendant, appellant.
S. Steven Karalekas, Washington, D.C., with whom John B. Beaty, and Charles, Karalekas, McCahill & Wilson, Washington, D.C., were on brief, for plaintiffs, appellees.
Before COFFIN, Circuit Judge, SWYGERT,* Senior Circuit Judge, and BREYER, Circuit Judge.
COFFIN, Circuit Judge.

1
This case requires us to construe the scope of the personal privacy exemption of the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552(b)(7)(C).  Plaintiffs-appellees, the New England Apple Council (NEAC) and its member growers, seek release of the names of individuals variously involved in an investigation of NEAC conducted in 1979 by the Office of the Inspector General (OIG) of the Department of Labor.  NEAC is an organization of east coast apple growers.  The grand jury investigation conducted by OIG personnel focused on the activities of the NEAC in its hiring of foreign workers.  After several months of investigation, the United States Attorney declined prosecution.

2
NEAC subsequently filed a FOIA request for all records possessed by the Labor Department concerning the grand jury investigation of NEAC and its member growers.  The Labor Department released some documents, but withheld all or portions of others.  NEAC then filed suit under FOIA in federal district court to gain access to the withheld information.  As part of the court proceedings, the Labor Department filed a Vaughn index affidavit specifying the documents available, those withheld, and the reasons for withholding.   Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

3
For the purposes of this appeal, the withheld material falls into two groups:  (1) the names of OIG non-supervisory law enforcement personnel who participated in the grand jury investigation of NEAC;  and (2) the name of one individual who provided information to law enforcement personnel during the investigation.  The Labor Department claims that the names of its investigators merit the protection of FOIA exemption 7(C), 5 U.S.C. Sec. 552(b)(7)(C), and that the name of the individual who supplied information to the investigators falls within FOIA exemptions 7(C) and 7(D), 5 U.S.C. Sec. 552(b)(7)(C) & (D).1

4
After the parties submitted cross-motions for summary judgment with supporting materials, the district court ordered the release of all information at stake in this appeal.   See New England Apple Council, Inc. v. Donovan, 560 F.Supp. 231 (D.Mass.1983).  The court ruled that exemption 7(C) provided no basis for withholding the names of OIC law enforcement personnel involved in the investigation.  The court also rejected the Labor Department's claim that the identity of the individual who supplied information to law enforcement officials was protected from disclosure under exemptions 7(C) or 7(D).2

I. FOIA

5
This court begins from the familiar premise that FOIA exemptions are to be narrowly construed, Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976), to effectuate FOIA's basic policy in favor of disclosure of government-held information.   FBI v. Abramson, 456 U.S. 615, 630-31, 102 S.Ct. 2054, 2063-64 (1982).  To preserve certain necessary functions of government and to protect individuals who would be damaged by disclosure, FOIA contains nine explicit exemptions from the general rule of disclosure.  5 U.S.C. Sec. 552(b)(1)-(9).  These exemptions represent "the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses".   EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973);  see also Baldrige v. Shapiro, 455 U.S. 345, 352, 102 S.Ct. 1103, 1108, 71 L.Ed.2d 199 (1982).

6
II. Disclosure of Identities of Law Enforcement Personnel

7
As stated above, the district court rejected the Labor Department's contention that the names of the non-supervisory law enforcement personnel who participated in the grand jury investigation of the NEAC should fall within exemption 7(C), which protects from disclosure "investigatory records compiled for law enforcement purposes ... to the extent that the production of such records would ... constitute an unwarranted invasion of personal privacy".  The court rejected what it perceived to be the government's attempt to read exemption 7(C) as providing "an absolute bar to court ordered disclosure of the names of criminal law enforcement personnel".  560 F.Supp. at 235.  The court held that exemption 7(C) protected government officials only from disclosure of "private facts" such as "legitimacy, medical condition, receipt of governmental assistance, or other personal details which an individual generally does not reveal to the public at large".  Id.

8
This interpretation of exemption 7(C) runs against the grain of substantial precedent from other circuits.   See Ingle v. Department of Justice, 698 F.2d 259, 269 (6th Cir.1983);  Miller v. Bell, 661 F.2d 623, 629-30 (7th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982);  Lesar v. United States Department of Justice, 636 F.2d 472, 487 (D.C.Cir.1980);  Nix v. United States, 572 F.2d 998, 1005-06 (4th Cir.1978).  We agree with the following description, subscribed to by the Seventh and Fourth Circuits, of the privacy interests retained by government officials:

9
"One who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties.  Public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives."

10
Miller v. Bell, 661 F.2d at 630 (quoting Nix v. United States, 572 F.2d at 1006).  Contrary to the position taken by the district court and NEAC, the protection of exemption 7(C) is not limited to cases involving "private facts" or an actual showing of harassment or other harm to government officials.   See Miller v. Bell, 661 F.2d at 629-30;  Lesar, 636 F.2d at 487.3

11
NEAC contends that the circuit court decisions listed above protected the identities of agents of the Federal Bureau of Investigation (FBI) and that those cases cannot be extended to protect the identities of Labor Department OIG officials.  NEAC would have this court distinguish typical FBI activities--including dangerous and sensitive tasks such as arrests, searches, and undercover work--from the typical activities of the OIG officials.  NEAC would then have this court conclude that OIG officials have a lesser need than FBI agents to have their names withheld.

12
The functions of OIG investigators are not so different from the functions of FBI agents as to warrant divergent treatment under FOIA exemption 7(C).  Both types of officials investigate federal crimes, serve in undercover capacities, perform surveillance, and conduct investigatory interviews.  In the course of a criminal investigation, OIG officials may be deputized to make arrests or execute search warrants.  See 28 C.F.R. Sec. 0.112 (1983).  These officials must often investigate violent and other crimes in the course of combatting organized crime and labor racketeering, see 18 U.S.C. Sec. 1951 (Hobbs Act) (interference with commerce by threats or violence);  18 U.S.C. Sec. 664 (embezzlement of employee benefit plan funds), and the kind of farm-labor problems investigated in this case.

13
Even though OIG investigations into white collar criminal activity (of the sort investigated in this case to no avail) might not invite the type of animosity and motivation for reprisal activated by FBI searches and arrests pursuant to violent crimes, the individual officer's interest in retaining the capability to perform his tasks effectively by avoiding untoward annoyance or harassment is no less significant.  The potential for this annoyance or harassment need not rise to the level of physical endangerment before the protection of 7(C) may be invoked.   See Miller v. Bell, 661 F.2d at 630;  Nix v. United States, 572 F.2d at 1006 & n. 8.4   OIG officials who regularly investigate either businesses or unions could be neutralized if the industry trade association or labor union could obtain the names of investigators whenever those investigators probed the practices of their targets.

14
The district court's overly narrow interpretation of the OIG officials' privacy interest is compounded by the court's failure to balance the individuals' interest in having the government withhold their names and the public interest in disclosure.  Exemption 7(C) permits the government to withhold law enforcement investigatory records only if disclosure would "constitute an unwarranted invasion of personal privacy".  (Emphasis added).  The modifier "unwarranted" requires courts to balance the competing interests at stake.   See, e.g., Diamond v. FBI, 707 F.2d 75, 77 (2d Cir.1983) (balancing test mandated under exemption 7(C)), petition for cert. filed, 52 U.S.L.W. 3141 (U.S. Aug. 11, 1983);  Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 862 (D.C.Cir.1981) (exemption 7(C) requires balancing privacy interest against public interest in disclosure);  Sands v. Murphy, 633 F.2d 968, 971 n. 4 (1st Cir.1980) (exemption 7(C) invites balancing);  Providence Journal Co. v. FBI, 602 F.2d 1010, 1013 (1st Cir.1979) (exemption 7(C) requires balancing), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 752 (1980).

15
As discussed above, the OIG investigators do not lose all of their privacy concerns simply by serving as public officials.  But this privacy interest is not the sort of intimate detail or extremely compromising fact that would create a substantial barrier to disclosure.  The nature of the information sought here hardly presents plaintiffs with a heavy burden.  Yet they have failed to present any meaningful evidence of how disclosure of this information would serve the public interest.

16
In the circumstances of this case, the public does not care whether an OIG law enforcement official involved in the grand jury investigation of NEAC is named John Doe or Jane Roe.  NEAC has not alleged any wrongdoing by these OIG investigators, see Miller v. Bell, 661 F.2d at 630;  cf. Columbia Packing Co. v. United States Department of Agriculture, 563 F.2d 495, 499 (1st Cir.1977) (disclosure of USDA employees' personnel files warranted by employees' involvement in criminal activity), and the public interest in knowing the nature and extent of the investigation of NEAC has been satisfied by the disclosure of most of the information, including most of the names, sought by NEAC.   Cf. Kurzon v. Department of Health & Human Services, 649 F.2d 65, 68 (1st Cir.1981) (public interest served by disclosure of information concerning government grant process).  That NEAC might some day bring suit against these OIG investigators does not transform NEAC's request into one that serves the public interest.  "[I]t is settled that the disclosure provisions of FOIA are not a substitute for discovery and a party's asserted need for documents in connection with litigation will not affect, one way or the other, a determination of whether disclosure is warranted under FOIA".   Columbia Packing Co., 563 F.2d at 499 (citations omitted);  see Nix v. United States, 572 F.2d at 1003 (FOIA not designed to supplement rules of civil discovery).

17
The balance between the OIG officials' privacy interest and the public interest in disclosure tips in favor of nondisclosure.  Given that the district court characterized the government's position as one that sought an "absolute bar" to FOIA disclosure of the names of criminal law enforcement personnel, we should emphasize the limited nature of our holding.  We would not accept any argument that NEAC or any other interested citizens have no business inquiring into the procedures and product of a federal criminal investigation.  The public has a significant, enduring interest in remaining informed about actions taken by public officials in the course of their duties.  But Congress has specifically limited access to government-held information where disclosure would "constitute an unwarranted invasion of personal privacy".  Exemption 7(C) requires a court to mediate between the public interest in disclosure and the individual's privacy interest in nondisclosure;  plaintiffs' mere curiosity does not suffice to overcome the privacy interest asserted by the law enforcement officials in this case.

18
III. Identity of an Individual Who Provided Information to

Labor Department Law Enforcement Officials

19
The district court held that neither exemption 7(C) nor 7(D) justified withholding the name of an individual who provided information to Labor Department OIG law enforcement officials during the grand jury investigation of NEAC.  In rejecting the government's 7(C) claim as to this individual, the district court stated that exemption 7(C) "was designed to protect individuals against the disclosure of only that information which is embarrassing or injurious to their reputation;  it does not provide a complete shield for all persons questioned by the government".  The court also noted that the government's position "would allow the government to conceal the names of anyone who provided information and would render superfluous the confidential source exemption, [section 7(D) ]".  560 F.Supp. at 235 (emphasis in original).

20
This restricted reading of the scope of exemption 7(C) finds no support in prior cases from this circuit.  In Providence Journal Co. v. FBI, supra, we upheld a district court that had employed exemption 7(C) to withhold, inter alia, the names of FBI informants.  602 F.2d at 1012.  We found no need to probe into the probable effects of disclosure on the informants' reputations.  Rather, we ordered withholding of all the information at stake in the appeal, because the information was the fruit of illegal wiretapping, and Congress had already tipped the 7(C) balance against disclosure of information obtained by such means.  See id. at 1013;  Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. Secs. 2510-2520.  Thus, while we did not focus on typical 7(C) privacy concerns--the substance of the material or the effect that disclosure of the informants' identities might have on their private or professional lives or their willingness to cooperate with government investigators in the future--we held against disclosure without making the specific findings that the district court below would require in cases concerning informants' identities.5

21
Moreover, substantial authority from other circuits indicates that the district court in this case erred in placing such a heavy burden on the government.6   See e.g., White v. IRS, 707 F.2d 897, 901-02 (6th Cir.1983) (withholding names under 7(C) of persons who indicated willingness to provide information relevant to investigation of White);  Lesar, 636 F.2d at 488 (withholding informants' names under 7(C) to minimize public exposure or possible harassment);  Scherer v. Kelley, 584 F.2d 170, 176 (7th Cir.1978) (quoting Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir.1977)) (withholding under 7(C) and 7(D) names of interviewees), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979);  Nix, 572 F.2d at 1006 (withholding under 7(C) name of physician who reported to FBI on prisoner's medical condition and treatment);  Diamond v. FBI, 532 F.Supp. 216, 225 (S.D.N.Y.1981) (noting that courts have withheld interviewees' names under 7(C) to insure that individuals may freely talk with FBI officials without fear of subsequent disclosure and possible reprisal), aff'd, 707 F.2d 75 (2d Cir.1983), petition for cert. filed, 52 U.S.L.W. 3141 (U.S. Aug. 11, 1983).

22
Contrary to the district court's reading, we do not interpret the government's position to be an assertion of absolute authority to withhold the name of any interviewee in any law enforcement investigation.  Rather, the government has argued only that the privacy interests of this source outweigh the asserted public interest in disclosure.  The government in fact released the names of some other individuals who provided information to OIG investigators during the NEAC investigation.

23
The balancing required by exemption 7(C) tips against disclosure of this source's identity.  Having read both the Vaughn affidavit and the in camera affidavit filed in district court by the Labor Department in support of its claim to withhold the source's identity under exemption 7(D) because of an assurance of confidentiality, we hold that this individual has a strong privacy interest in nondisclosure of identity under 7(C).  Disclosure could have a significant, adverse effect on this individual's private or professional life.  On the public interest side of the balance, NEAC can again present nothing beyond mere curiosity.

24
We do not share the district court's fear that invocation of exemption 7(C) to withhold the identity of this informant will render superfluous the 7(D) exemption for confidential informants.  Exemption 7(D) provides greater protection to a narrower class of persons than does 7(C).  To invoke 7(D), the government must show that the informant provided information to government officials under an express or implied assurance of confidentiality.  If the government can make this showing, it need not then demonstrate, as it must under 7(C), that privacy interests outweigh the public interest in disclosure.   See Sands v. Murphy, 633 F.2d at 971 & n. 4.  Thus, 7(D) shields from disclosure some identities that 7(C) does not, and vice versa.

IV. Conclusion

25
We hold that the district court erred in ordering both the disclosure of the identities of the Labor Department non-supervisory law enforcement officials involved in the grand jury investigation of NEAC and the disclosure of the identity of an individual who provided information to the Labor Department officials in the course of the investigation.

26
Reversed.  Costs to appellant.

*
 Of the Seventh Circuit, sitting by designation

1
 The relevant portions of the statute provide for exemption from disclosure of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy, [or] (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, ... confidential information furnished only by the confidential source"

2
 Appellees incorrectly state that this court may reverse the district court only if its conclusions are "clearly erroneous".  In summary judgment there can be no review of factual issues, because Rule 56(c) bars the district court from resolving any disputed factual issues at the summary judgment stage.  Assuming the absence of genuine issues of material fact, the issue on appeal from a grant of summary judgment concerns whether the movant was entitled to judgment as a matter of law.  10 C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure Civil 2d Sec. 2716, at 643 (1983)

3
 The district court cited two district court decisions that provide scant support for its constricted interpretation of exemption 7(C).  The court first cited Ferguson v. Kelley, 448 F.Supp. 919, 923 (N.D.Ill.1977), in which the district court had ordered the release of the names of FBI agents and local police officers involved in a criminal investigation.  On reconsideration, the district court reversed its earlier ruling and ordered the names withheld following a 7(C) balancing analysis.   Ferguson v. Kelly, 455 F.Supp. 324, 327 (N.D.Ill.1978)
The court below also relied on Canadian Javelin, Ltd. v. SEC, 501 F.Supp. 898 (D.D.C.1980), in which the court ordered the release of the identities of SEC investigators.    Canadian Javelin does not, however, share the view put forward by the court below that law enforcement officials suffer no privacy invasion upon release of their names.  The Canadian Javelin court balanced privacy interests against the public interest in disclosure and concluded, on the facts of that case, that disclosure was warranted.   Id. at 904.  Further, Canadian Javelin also involved a civil, not a criminal, investigation.  Although exemption 7(C) applies to both civil and criminal investigations, the privacy concerns of law enforcement officials are usually more significant following a criminal investigation.  Finally, to the extent that Canadian Javelin might be read to support the interpretation of exemption 7(C) propounded by the court below, Canadian Javelin strays from precedent handed down in its circuit.   See Baez v. United States Department of Justice, 647 F.2d 1328, 1339 (D.C.Cir.1980);  Lesar, 636 F.2d at 487.   But see Iglesias v. CIA, 525 F.Supp. 547, 563 (D.D.C.1981) (relying solely on Canadian Javelin in finding no 7(C) privacy protection for investigatory officials).

4
 Another FOIA exemption, 7(F), justifies withholding of law enforcement investigatory records if disclosure would "endanger the life or physical safety of law enforcement personnel".  5 U.S.C. Sec. 552(b)(7)(F).  Exemption 7(C) protects law enforcement officials from disclosures that would be potentially harmful to the officials' privacy interests in situations that would not warrant the invocation of exemption 7(F)

5
 In Sands v. Murphy, 633 F.2d at 970-71, we reserved decision of whether 7(C) protected the identities of informants, but noted in discussion of exemption 7(D) that "loss of privacy" could result if an individuals' cooperation with law enforcement officials were disclosed

6
 Because we reverse under 7(C), we need not decide whether the district court correctly rejected the government's argument that the confidential source exemption, 7(D), justifies withholding this individual's identity