United States v. Jackson, Eddie ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3848, 06-4124, & 06-4399
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E DDIE JACKSON, IEANIS S HAW, AND P AMELA Y OUNG,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 247—Ruben Castillo, Judge.
____________
A RGUED JANUARY 17, 2008—D ECIDED A UGUST 29, 2008
____________
Before R IPPLE, R OVNER, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Defendants Angela Hubbard,
Ieanis Shaw, Eddie Jackson, Pamela Young, and Bruce
Jones were charged in a three-count indictment with
bank fraud in violation of 18 U.S.C. §§ 1344 and 2. The
government alleged that Ms. Shaw and Ms. Hubbard
generated false mortgage loan documents in order to
wire transfer mortgage loan proceeds to the personal
bank accounts of friends and family. One count was
2 Nos. 06-3848, 06-4124, & 06-4399
dismissed against Ms. Shaw, and a superseding indict-
ment was returned, adding money laundering charges
under 18 U.S.C. § 1957 against all defendants except
Mr. Jones.
Defendants Shaw, Jackson, and Young were tried by a
jury and convicted on all counts. After denying motions
for a new trial, the district court sentenced the de-
fendants to terms of imprisonment and ordered them
to pay restitution. Defendants Shaw, Jackson, and Young
appealed. Their appeals were consolidated.
The defendants raise three issues on appeal. They
first challenge the district court’s decision to exclude
hearsay evidence that Ms. Hubbard lied to the govern-
ment about Ms. Shaw’s role in one of the wire transfers
involved in the bank fraud scheme. They also challenge
the sufficiency of the evidence of their guilt at trial. Lastly,
they contend that in rebuttal argument government
counsel improperly commented on their decisions not
to testify in violation of their Fifth Amendment right to
remain silent. For the following reasons, we affirm.
I. Background
Washington Mutual Bank (“Washington Mutual” or the
“bank”) is the nation’s largest savings and loans. Its
deposits are insured by the Federal Deposit Insurance
Corporation. Washington Mutual provides mortgages to
its customers who are buying or refinancing homes. In
2003 its mortgage loans were processed at three sites,
including Downers Grove, Illinois.
Nos. 06-3848, 06-4124, & 06-4399 3
The mortgage loan processing was compartmentalized
into discrete job functions similar to an assembly line.
First, the loans were solicited by mailings to existing
Washington Mutual customers. If a customer completed
certain paperwork and returned it, employees at the
Downers Grove facility put the customer’s personal
information into a loan processing computer system
called “Pronto.” The mortgage loan application then
went to “openers,” employees who were responsible for
compiling required forms and documents for a particular
loan and sending the loan on to the next stage of the
process. The loan file next moved on to the underwriting
department, where underwriters decided whether to
approve, decline, or suspend the loan based on credit
information in the loan file. If a loan was approved, then
the loan file moved on to the processing department.
Employees in that department were responsible for
gathering any additional information needed to complete
the mortgage loan process. Once all these steps were
completed, the file moved to the closing department
where employees called “closers” worked with title
agents and attorneys to reconcile loan fees and balance
and fund the mortgage loan. Closers were responsible
for preparing all legal documents for loan closing, many
of which were prepared using the Pronto system. Openers
and closers had no business reason to interact in order
to complete their respective job functions.
One type of document that the closers were responsible
for preparing was the “wire transfer worksheet.” These
worksheets were used to initiate the actual transfer
of funds from the bank to the specific closing location in
4 Nos. 06-3848, 06-4124, & 06-4399
order to fund a mortgage loan. The wire transfer
worksheets contained information such as the loan ap-
plicant’s name, the loan number, the amount of the
loan, and the location where the funds were to be sent.
In 2002 and 2003, after the closer prepared the wire transfer
worksheet, Washington Mutual’s procedures required
that two persons sign the worksheet before it moved on
to the wire room for funding. The first person was the
closer who had finalized the loan paperwork; the second
was a manager at the Downers Grove facility. In 2002
and 2003, at the height of the mortgage refinancing
boom, Washington Mutual employed full-time closers,
who were regular employees, and contract closers, who
were brought in on a part-time basis to assist with the
increased volume of loan applications. Full-time closers
were authorized to sign wire transfer worksheets; con-
tract closers were not. Once the wire transfer worksheet
had the required signatures, it was faxed from the Down-
ers Grove facility to the Washington Mutual wire room
in New York. Employees in the wire room reviewed the
worksheet for approvals and authorizing signatures
and generated the actual disbursement or wire of bank
funds to the settlement agent, usually a title company
or attorney. Wire transfers of bank funds for mortgage
loans were almost never sent to the bank account of an
individual borrower.
The Pronto system also maintained an accounting of
loans that had been approved and of bank funds that had
been dispersed to fund those loans. Pronto allowed wire
transfer requests to be “reversed.” This could be neces-
sary where a loan funding document was not executed
Nos. 06-3848, 06-4124, & 06-4399 5
properly or where a home sales transaction fell through at
the last minute. The process of reversing a wire transfer
was easy and only required a “couple clicks of a button.”
The process could also be used to conceal a fraud. In this
case, the defendants reversed wire transfers in Pronto
before the system completed its daily accounting, which
allowed them to conceal their fraud for some time. But
the process of reversing wire transfers left forensic evi-
dence. One could determine which Washington Mutual
employee reversed a wire transfer in Pronto by examining
the funding screen for that wire reversal and matching
up the user identification number associated with the
reversal with the master list of identification numbers
for bank employees. Every employee who reversed a
wire transfer in Pronto left a digital fingerprint of that
activity.
In early May 2003, TCF Bank notified the loss preven-
tion team at the Downers Grove facility of a large wire
transfer of mortgage loan funds from Washington
Mutual into the personal bank account of TCF Bank
customer Yvette Hulet. The May 8, 2003 wire transfer to
Ms. Hulet’s account was in the amount of $345,943.80.
The wiring of such a large sum of mortgage money into
a personal bank account immediately raised red flags.
The loss prevention team began an investigation into
the wire transfer and determined that no one with the
name Yvette Hulet had a pending mortgage loan ap-
plication with Washington Mutual. The team then found
the wire transfer worksheet used to generate the Hulet
wire. Examination of the worksheet revealed that it had
been printed on the then-pending mortgage loan applica-
6 Nos. 06-3848, 06-4124, & 06-4399
tion of a person named Percy Williams. In other words,
the worksheet had Mr. Williams’s name and loan
number on it, but Ms. Hulet’s name was listed as the
beneficiary of the wire and her TCF Bank account was
the account to be credited.
Further examination of the worksheet revealed addi-
tional evidence of fraud. One of the authorizing signatures
on the worksheet was Stan Zotas, who was no longer
employed by Washington Mutual at the time of the “loan.”
The Washington Mutual investigators determined that
whoever generated the fraudulent wire transfer had cut
and pasted the authorization signatures from a legitimate
wire transfer worksheet onto the same section of the
fraudulent Hulet worksheet and then sent it to the wire
room for funding. The investigators concluded that the
fraud was an inside job because the hard copies of legiti-
mate wire transfer worksheets were only accessible to
any current Washington Mutual employee. The investiga-
tors also discovered that six wire transfers in Hulet’s
name had been printed through Pronto in early May
2003, though only one wire transfer worksheet had been
faxed to the wire room in New York. In addition, these
six wire transfers had been printed using Ms. Hulet’s
personal and bank information and a pending loan ap-
plication, and the wires had been reversed in Pronto.
Washington Mutual attempted to determine whether
any other similar fraudulent wire transfers had occurred
from the Downers Grove facility. An investigation dis-
closed that wire transfers of mortgage loan funds had
been made from Washington Mutual to the personal
Nos. 06-3848, 06-4124, & 06-4399 7
bank accounts of Pamela Young, Eddie Jackson, and Bruce
Jones. First, on January 28, 2003, a wire transfer of
$194,471.70 was made into Ms. Young’s personal checking
account at Bank One. The wire transfer sheet contained
Ms. Young’s name, the name of her bank and her bank
account number. The Young wire transfer sheet had
been printed on the pending loan application of Washing-
ton Mutual customer Beverly Emon, also a Washington
Mutual employee. Next, on April 1, 2003, a wire transfer
of $250,641.40 was made into Mr. Jackson’s personal bank
account at TCF Bank. The wire transfer had been printed
on the pending loan application of Washington Mutual
customer Frank Knoll. Then on April 29, 2003, a wire
transfer of $187,134 was made into Mr. Jones’s personal
bank account at Bank One. This wire transfer had been
printed on the pending loan application of Washington
Mutual customer Mark Corvo. Four other wires were
printed with Mr. Jones’s name, but were not sent to the
wire room for funding and were reversed before a wire
transfer took place. The Washington Mutual investigators
also discovered five wires in Pronto that had been
printed in April 2003 in the name of George Davis, Defen-
dant Shaw’s husband, for amounts ranging from $90,000
to a bit over $100,000. None of the Davis wires were sent
to the wire room for funding.
The Washington Mutual investigators took steps to
determine whether the Young, Jackson, and Jones wires
were legitimate and found similar evidence of fraud in
each of them. Neither Young, Jackson, nor Jones was a
Washington Mutual mortgage loan customer in the
winter or spring of 2003, and the authorization signa-
8 Nos. 06-3848, 06-4124, & 06-4399
tures on each wire had been cut and pasted from
legitimate worksheets. Washington Mutual’s investiga-
tion led to Angela Hubbard and Ieanis Shaw. Ms. Hubbard
had been a contract closer at the Downers Grove facility
from September 2002 until April 28, 2003, her last day
of employment. Ms. Shaw was hired as a contract opener
at the Downers Grove facility in late August 2002 and
then made a full-time employee in March 2003. Her last
day of employment with Washington Mutual was May 20,
2003.
Before the January 28 wire transfer of $194,471.70 into
Ms. Young’s personal bank account, Ms. Young’s
checking account had maintained very low or negative
balances. Her bank records show that the day after the
transfer, January 29, 2003, she opened a new savings
account at Bank One in Texas and transferred $94,243.58
from her checking account into her new savings account.
Bank records further show that on January 30, 2003,
$45,207.12 was withdrawn from this new savings account.
Also on January 29, Ms. Young wrote a personal check to
Bank One to obtain a cashier’s check made payable to
Angela Hubbard in the amount of $97,000. The cashier’s
check later was endorsed by Ms. Hubbard. Bank Calumet
records reflect that on February 3, 2003, Ms. Hubbard
deposited $46,000 into her checking account, used $50,000
to open a new savings account, and received $1,000 cash.
Ms. Young and Ms. Hubbard are sisters. Telephone
records revealed that from January 1 through January 24,
2003, they spoke on the phone only three times for a
total of forty-two minutes. But during the ten days from
Nos. 06-3848, 06-4124, & 06-4399 9
January 25 through February 3, 2003, the period surround-
ing the wire transfer, they spoke on the phone thirty-six
times for a total of 228 minutes. In the remainder of
February 2003, they spoke eleven times for a total of 108
minutes.
On April 1, 2003, $250,641.40 was wired from Wash-
ington Mutual to a personal checking account at TCF
Bank opened by Mr. Jackson on March 23, 2003. The
account had very low or negative balances before the
transfer. The same day as the wire transfer, Mr. Jackson
wrote a personal check on the account in the amount of
$125,000 payable to Angela Hubbard. On April 3, 2003,
that check was deposited into Ms. Hubbard’s personal
checking account at Bank Calumet and Ms. Hubbard
wrote a personal check on her account payable to
Ms. Shaw for $10,000. This check was later deposited into
Ms. Shaw’s bank account. A week later Ms. Hubbard wrote
another personal check for $10,000 payable to Ms. Shaw.
This check also was deposited into Ms. Shaw’s account.
Mr. Jackson ran through the money he retained rather
quickly on cash withdrawals, furniture, vehicles, and gifts
to family and friends. On June 23, 2003, less than three
months after the wire transfer, his account balance was
near $0.
Telephone records of calls between Mr. Jackson and
Ms. Hubbard reveal a spike in activity in the time period
surrounding the April 1 wire transfer. In January and
February 2003, Mr. Jackson and Ms. Hubbard spoke nine
and seven times, respectively, for a total of fifty-three
minutes each month. From March 1 through March 25,
10 Nos. 06-3848, 06-4124, & 06-4399
2003, they had sixteen telephone conversations for a total
of sixty-six minutes. However, during the ten days from
March 26 through April 4, 2003, they had seventy-three
telephone conversations for a total of 222 minutes.
In April 2003, Ms. Shaw purchased two wedding rings
from the Jewelry Exchange, valued at $3,225.64 and
$2,312.21, respectively. That same month Ms. Shaw and
her husband went on a honeymoon to Jamaica at the cost
of $3,306. Then on May 8, 2003, Ms. Shaw purchased
approximately $12,500 in furniture from Harlem Furniture.
On April 29, 2003, $187,134 was transferred by wire
from Washington Mutual to Mr. Jones’s personal checking
account at Bank One. On May 1, Mr. Jones obtained two
cashier’s checks. The first, in the amount of $63,567, was
made payable to Ms. Hubbard; the second, in the amount
of $60,000, was made payable to Ms. Shaw. Mr. Jones
testified that Ms. Hubbard had instructed him to divide
the proceeds of the wire transfer three ways and to
obtain two cashier’s checks, one for her and one for Ms.
Shaw. He also testified that he had never met Ms. Shaw
before. Mr. Jones used his share of the proceeds to buy
some vehicles and pay off some bills. Ms. Shaw’s bank
records show that on May 2, 2003, she opened a new
savings account at TCF Bank with the $60,000 cashier’s
check. She then transferred $30,000 from that account
into her checking account.
Washington Mutual’s investigation revealed that the
authorizing signatures on the Jones wire transfer were
identical to those on the worksheet involved in the Hulet
wire transfer that had prompted the investigation. Five
Nos. 06-3848, 06-4124, & 06-4399 11
wires had been printed in Mr. Jones’s name, but four were
reversed before the real wire took place. Ms. Hubbard’s
user identification number was used to reverse the
first four Jones wires in Pronto. Ms. Shaw’s user iden-
tification number was used to reverse the real wire
transfer on April 29, the day after Ms. Hubbard’s em-
ployment at Washington Mutual ended. Ms. Shaw’s user
identification number also was used to reverse all five
wires printed in her husband’s name and all of the Hulet
wires as well. The investigation also revealed that two
wires had been printed in Mr. Jackson’s name. The first
was printed and reversed in Pronto on March 28, 2003;
Ms. Shaw’s user identification number was used to
reverse the wire. Ms. Hubbard’s user identification num-
ber was used to reverse the real wire transfer on April 1,
2003.
On March 17, 2005, Defendants Hubbard, Shaw, Jackson,
Young, and Jones were charged in a three-count indict-
ment with a scheme to defraud Washington Mutual and
to obtain monies and funds owned by and under the
custody and control of the bank in violation of 18 U.S.C.
§§ 1344 and 2. The government alleged that Ms. Shaw and
Ms. Hubbard generated false mortgage loan documents
in order to wire transfer mortgage loan proceeds to the
personal bank accounts of friends and family, including
Ms. Hubbard’s sister, Ms. Young, and Ms. Hubbard’s long-
time friend, Mr. Jackson. Mr. Jones and Ms. Hubbard
entered into written plea agreements. On August 30,
2005, Mr. Jones pled guilty to count three of the indict-
ment which alleged the fraudulent wire transfer into
his account. On October 25, 2005, pursuant to a written
12 Nos. 06-3848, 06-4124, & 06-4399
plea agreement, Ms. Hubbard pled guilty to count one
of the indictment alleging the fraudulent Young wire
transfer.
As part of her plea agreement, Ms. Hubbard agreed
to cooperate with the government and to provide
complete and truthful information during its investiga-
tion and in preparation for trial of the co-defendants.
Both in her proffer of her involvement in the scheme
and in her plea agreement, Ms. Hubbard implicated Ms.
Shaw in the Young wire transfer. Specifically, Ms. Hubbard
admitted certain facts as a basis for her plea: In January
2003 she and Ms. Shaw “began talking about the possi-
bility of attempting to fraudulently wire money from
Washington Mutual into someone else’s bank account”;
they “agreed they would first attempt this scheme by
wiring money to [Ms. Hubbard’s] sister, co-defendant
Pamela Young”; after Ms. Young provided Ms. Shaw with
her personal and banking information, “Shaw generated
fraudulent mortgage loan documents in Young’s name and
sent a wire request for mortgage loan funds to be dis-
bursed to Young’s personal bank account”; and Ms.
Hubbard, Ms. Shaw, and Ms. Young executed the
scheme on January 28, 2003, by causing a wire transfer of
loan funds to Ms. Young’s checking account and subse-
quently agreed on how to divide the proceeds from the
scheme, with Ms. Young keeping half and Ms. Hubbard
and Ms. Shaw dividing the other half.
On January 20, 2006, shortly before the start of the
scheduled jury trial, Ms. Hubbard told the government
that she had not been truthful in her proffer and plea
Nos. 06-3848, 06-4124, & 06-4399 13
agreement. She claimed that Ms. Shaw had no active role
in the Young wire transfer. More specifically, Ms. Hubbard
said that it was she who contacted Ms. Young about
participating in the fraud scheme, obtained Ms. Young’s
bank account information, and generated the fraudulent
wire transfer worksheet. However, Ms. Hubbard also
said that she and Ms. Shaw had conversations about
wiring money into people’s bank accounts and that
Ms. Shaw knew Ms. Hubbard was involved in the wire
transfer to Ms. Young’s account. Ms. Hubbard added that
after learning how much money Ms. Hubbard and Ms.
Young received, Ms. Shaw said she would like to get
involved.
The morning that trial was to commence, the govern-
ment informed the court that Ms. Hubbard had advised
that information she previously had provided was not
truthful. The government took the position that Ms.
Hubbard had lied in her proffers and in open court during
her plea hearing and was no longer usable as a witness.
The government moved to revoke Ms. Shaw’s plea agree-
ment and vacate her guilty plea. The district court granted
these motions and continued the trial date. The govern-
ment then moved to dismiss count one of the indictment
(involving the Young wire transfer) as to Ms. Shaw. The
district court granted this motion. On March 1, 2006, the
grand jury returned a nine count superseding indict-
ment against all defendants except Mr. Jones, who by
then had already pled guilty. The superseding indict-
ment added money laundering charges in violation of
18 U.S.C. § 1957.
14 Nos. 06-3848, 06-4124, & 06-4399
After the superseding indictment was filed, the gov-
ernment filed a supplemental evidentiary proffer to
admit co-conspirator statements. (The district court
previously had granted the government’s motion to
admit co-conspirator statements based on a proffer that
relied heavily, but not exclusively, on Ms. Hubbard’s
statements.) The supplement proffered that Mr. Jones
would testify that Ms. Hubbard told him that Ms. Shaw
was orchestrating the fraud and that Ms. Hubbard could
wire him money only if “Ieanis would do it.”
Defendants Shaw, Jackson, and Young were tried by a
jury and convicted on all counts. During trial, the gov-
ernment moved to preclude the defense from presenting
evidence about Ms. Hubbard’s January 20th partial recan-
tation through the cross-examination of the government
agent, Mike Clifford. Ms. Shaw’s counsel argued that the
evidence that Ms. Hubbard recanted statements she had
made to the government about Ms. Shaw’s involvement
in the Young wire transfer was admissible as statements
against interest under Fed. R. Evid. 804(b)(3).1 The district
judge cautioned, “Just before me Miss Hubbard has
said conflicting things. So for me to allow in some type
of hearsay statement that Miss Hubbard made is going
to take a lot of corroborating circumstances for that to
come in.” The court ultimately found insufficient corrobo-
1
Only Ms. Shaw’s counsel sought the admission at trial of
Ms. Hubbard’s January 20 partial recantation. Mr. Jackson’s
counsel did not take a position on the statements’ admissibility,
and Ms. Young’s counsel actually objected to their admission.
Nos. 06-3848, 06-4124, & 06-4399 15
rating circumstances to admit the hearsay, sustained the
government’s objection and thus excluded the evidence.
At trial, consistent with the government’s proffer, Mr.
Jones testified that he knew Ms. Shaw was involved in the
fraud scheme because Ms. Hubbard had told him so. He
also testified that when he asked Ms. Hubbard if he
could get some money wired to him, she said that she
could not do it, but she would check with Ieanis to see
if Ieanis could do it.
Ms. Shaw and Ms. Young moved for a new trial. The
district court treated the motions as made by all defend-
ants and denied the motions. The defendants were sen-
tenced to terms of imprisonment and ordered to pay
restitution. At sentencing, Ms. Shaw again raised the
issue of Hubbard’s recanted statements. Judge Castillo
said with respect to Ms. Hubbard, “I think her credibility
is zero at this point, as I’ve seen her take inconsistent
positions before this Court during plea allocutions that
occurred on the record under oath, and so I could not
in good conscience admit any of her out-of-court state-
ments, and so that was the basis for that ruling . . . .” Shaw,
Jackson, and Young timely appealed their convictions.
Their appeals were consolidated and are before us now.
II. Discussion
On appeal, the defendants raise three challenges to
their convictions. They first contend that the district
court erred in excluding hearsay evidence that Ms. Hub-
bard lied to the government about Ms. Shaw’s role in the
16 Nos. 06-3848, 06-4124, & 06-4399
Young wire transfer. They also challenge the sufficiency
of the evidence of their guilt at trial. Finally, the defendants
contend that in rebuttal the government improperly
commented on their decisions not to testify in violation
of their Fifth Amendment right to remain silent. Each of
these challenges fails, as explained below, so we affirm.
A. Exclusion of Ms. Hubbard’s Statements
The defendants contend that the district court erred by
excluding evidence that Ms. Hubbard recanted prior
statements and lied to the government about Ms. Shaw’s
involvement in the Young wire transfer. They assert that
the excluded evidence was essential to their case and, as
a result, its exclusion denied them a fair trial. This court
generally reviews a district court’s decision regarding
the admission of evidence for an abuse of discretion.
United States v. Swan, 486 F.3d 260, 263 (7th Cir. 2007). As
noted, however, only Ms. Shaw sought admission of Ms.
Hubbard’s January 20th recanting statements; Mr. Jackson
did not address the evidence and Ms. Young actually
objected to their admission. This is a clear case of waiver
by Ms. Young of any right to challenge the exclusion of
the statements, see United States v. Clements, 522 F.3d 790,
793 (7th Cir. 2008) (“Waiver occurs when a criminal
defendant intentionally relinquishes a known right.”), and
a forfeiture by Mr. Jackson of any such right, see id.
(“Forfeiture occurs when a defendant negligently fails
to assert a right in a timely fashion.”). Waiver ex-
tinguishes any error, precluding appellate review; forfei-
ture, however, allows for plain error review. Id. A plain
Nos. 06-3848, 06-4124, & 06-4399 17
error “must be clear or obvious and affect substantial
rights in order to warrant reversing the district court’s
decision” as to the admissibility of evidence. United
States v. Schalk, 515 F.3d 768, 776 (7th Cir. 2008) (citation
omitted). Thus, we review the exclusion of this evidence
for an abuse of discretion as to Ms. Shaw and for plain
error as to Mr. Jackson. And because of Ms. Young’s
waiver, our review is precluded as to her.
Prior to analyzing admissibility under Rule 804(b)(3), we
observe that by offering Ms. Hubbard’s recanting state-
ments, Ms. Shaw sought, in effect, to impeach Ms. Hub-
bard on a collateral matter. “[C]ontradiction is a valid
method of impeachment, [but] it is well-settled that one
may not impeach by contradiction regarding collateral or
irrelevant matters and that a party may not contradict
for the sake of contradiction.” United States v. Bitterman,
320 F.3d 723, 727 (7th Cir. 2003) (quoting United States v.
Kozinski, 16 F.3d 795, 805-06 (7th Cir. 1994)). We note
that this rule ordinarily is utilized when a witness is
testifying, and Ms. Hubbard never testified as a witness.
However, in our view, the rule is equally applicable
where a party attempts to put a non-testifying person’s
statement before the trier of fact solely to impeach that
person. The jury was not asked to determine whether
Ms. Shaw participated in the Young wire transfer: before
trial the government had dismissed the Young wire
transfer count against Ms. Shaw. Furthermore, Ms. Hub-
bard’s earlier statements that Ms. Shaw participated in
the Young wire transfer were not before the jury. Thus,
in order for the jury to find that Ms. Hubbard lied about
Ms. Shaw’s participation in the Young wire transfer, the
18 Nos. 06-3848, 06-4124, & 06-4399
jury would also have to hear evidence that Ms. Hubbard
had made statements implicating Ms. Shaw in that trans-
action. Such evidence was irrelevant because Ms. Shaw
was no longer charged with any offense arising out of the
Young wire transfer. The only purpose of presenting
evidence that Ms. Hubbard recanted prior statements
implicating Ms. Shaw in the Young wire transfer was
to prove that Ms. Hubbard was lying. But “[m]erely
attempting to prove that a witness is lying is not a proper
purpose of impeachment by contradiction.” Kozinski, 16
F.3d at 807. And the district judge could have excluded
this collateral and irrelevant evidence under Fed. R. Evid.
403 because its tendency to mislead and confuse the jury
outweighed its negligible probative value. All that said,
we move on to consider whether the district court abused
its discretion in excluding the evidence under Rule
804(b)(3).
Under Fed. R. Evid. 804(b)(3), hearsay statements are
not excluded by the hearsay rule if “(1) the declarant is
unavailable as a witness, (2) the statement was against
the declarant’s penal interest when made, and (3) cor-
roborating circumstances clearly suggest that the state-
ment is trustworthy.” United States v. Loggins, 486 F.3d
977, 981 (7th Cir. 2007), cert. denied, 128 S. Ct. 805 (2007);
see also United States v. Leahy, 464 F.3d 773, 797-98 (7th
Cir. 2006), cert. denied sub nom. Duff v. United States, 128
S. Ct. 46 (2007). The proponent of the hearsay statement
bears the burden of demonstrating that each of these
elements is satisfied. United States v. Robbins, 197 F.3d 829,
838 (7th Cir. 1999). Here, the district court found—and the
government does not dispute—that Ms. Hubbard was
Nos. 06-3848, 06-4124, & 06-4399 19
unavailable to testify because she would assert her Fifth
Amendment right against self-incrimination. The govern-
ment also concedes, and we accept, that Ms. Hubbard’s
recantation of her prior statements implicating Ms. Shaw
in the Young wire transfer were against Ms. Hubbard’s
penal interest. Ms. Hubbard stood to and did, in fact,
lose the benefits of a favorable plea agreement and ex-
posed herself to additional criminal charges. Thus, the
only issue is whether the defendants have shown that
corroborating circumstances clearly suggest that Ms.
Hubbard’s January 20 statements were trustworthy.2
The district judge’s determination as to the trustworthi-
ness of an out-of-court statement is entitled to con-
siderable deference and should be upheld unless “clearly
erroneous.” United States v. Amerson, 185 F.3d 676, 684
(7th Cir. 1999); see also United States v. Hall, 165 F.3d 1095,
1112 (7th Cir. 1999). We have emphasized that Rule
804(b)(3) “expressly requires the exclusion of out-of-court
statements offered to exculpate the accused unless there
are corroborating circumstances that ‘clearly indicate’ the
trustworthiness of the statement.” Hall, 165 F.3d at 1112
(quoting United States v. Garcia, 897 F.2d 1413, 1420 (7th
Cir. 1990)). The defendants submit that the statements
in question were admissible based on consideration of
2
Ms. Hubbard’s recanting hearsay statements concern only
the first wire transfer into Ms. Young’s account. The recantation
has no relevance as to either Ms. Shaw or Mr. Jackson who
were not charged under the count arising from that wire
transfer.
20 Nos. 06-3848, 06-4124, & 06-4399
the factors from United States v. Nagib, 56 F.3d 798 (7th
Cir. 1995). In Nagib we identified three factors for district
courts to consider when determining whether corroborat-
ing circumstances exist for Rule 804(b)(3) purposes: (1) the
relationship between the declarant and the exculpated
party; (2) whether the statement was voluntary and given
after Miranda warnings; and (3) whether there is any
evidence the statement was made to curry favor with
authorities. Id. at 805 (citing United States v. Garcia, 986
F.2d 1135, 1140 (7th Cir. 1993)).
These factors might seem to provide some weight in
favor of finding corroborating circumstances here. Ms.
Hubbard and Ms. Shaw did not have a close personal
relationship which one would expect for Ms. Hubbard
to be motivated to falsely exculpate Ms. Shaw—though
they were close enough to be involved in the fraudulent
scheme together. Ms. Hubbard had been advised of her
Miranda rights and made the statements in the presence
of her counsel. It seems that her statements were
voluntary; the government does not suggest otherwise.
Nor is there anything in the record to suggest that Ms.
Hubbard recanted her prior statements in order to curry
favor with the government. To the contrary, Ms. Hubbard
would have known that recanting her prior statements
and admitting to having lied to the government in
pretrial preparation, in her plea agreement, and even
under oath at her plea hearing would result in the with-
drawal of her plea agreement, at the least, and expose her
to additional criminal charges.
We have never said, however, that the considerations
we identified in Nagib were the only factors to be
Nos. 06-3848, 06-4124, & 06-4399 21
weighed in determining whether corroborating circum-
stances exist. See Am. Auto. Accessories, Inc. v. Fishman, 175
F.3d 534, 541 (7th Cir. 1999) (stating that the factors to
consider in determining whether corroborating circum-
stances exist “include” the factors identified in Nagib);
Garcia, 986 F.3d at 1140 (indicating that the case law
identifies some circumstances relevant to determining
whether corroborating circumstances clearly indicate
trustworthiness). Other circumstances in this case
strongly detract from any corroboration raised by the
Nagib factors. Ms. Hubbard’s statements that Ms. Shaw
was not directly involved in the Young wire transfer
clearly contradicted her several prior statements to the
government, in her plea, and affirmed under oath, that
Ms. Shaw was involved in the Young wire transfer. We
have concluded that similar circumstances justified the
conclusion that a statement lacked the requisite trust-
worthiness for admission under Rule 804(b)(3). United
States v. Groce, 999 F.2d 1189, 1190-91 (7th Cir. 1993)
(upholding district court’s conclusion that out-of-court
statement lacked the trustworthiness required under
804(b)(3) where the declarant “gave several conflicting
statements, most of which contradicted the statement
[sought to be admitted]”).
The defendants argue that Ms. Hubbard’s statements
recanting her prior statements about the fraud scheme
were corroborated by other evidence, but her prior state-
ments implicating Ms. Shaw were not. We disagree.
Specifically, the defendants point to the evidence that
none of the co-defendants other than Ms. Hubbard
knew Ms. Shaw. While the government did not have
22 Nos. 06-3848, 06-4124, & 06-4399
evidence to suggest that Ms. Shaw would risk being
charged with a crime solely to benefit persons she did not
know, it did offer evidence that Ms. Shaw herself benefit-
ted from her participation in the scheme. The evidence
allowed a reasonable jury to find that Ms. Shaw received
$80,000 for her role in the Jackson and Jones wire transfers.
This, and other evidence, for example, the use of Ms.
Shaw’s user identification number in fraudulent wire
transfers, and the timing of the Jones wire transfer and
Hulet wire transfers after Ms. Hubbard had left Wash-
ington Mutual’s employ, corroborated Ms. Hubbard’s
earlier statements as to Ms. Shaw’s involvement in the
scheme to defraud.
As Judge Castillo explained, because Ms. Hubbard made
conflicting statements before him, “a lot of corroborating
circumstances” would be required to admit her
recanting hearsay statements. In effect, he was saying
that her statements were so conflicting that her
recanting hearsay statements were untrustworthy. The
judge later reiterated that Ms. Hubbard’s credibility was
“zero” and he “could not in good conscience admit any
of her out-of-court statements.” The district judge did not
err in finding that Ms. Hubbard’s recanting hearsay
statements lacked trustworthiness. And we cannot dis-
agree with his conclusion that a lot of corroboration
would be needed to admit the recanting hearsay state-
ments of an incredible and untrustworthy declarant.
Ultimately, Judge Castillo did not find sufficient corrobo-
rating circumstances to admit the statements. That was
well within his discretion based on the entire record before
him. And, as we have noted, Rule 804(b)(3) explicitly
Nos. 06-3848, 06-4124, & 06-4399 23
requires a judge to exclude an out-of-court statement
unless there are sufficient corroborating circumstances.
Hall, 165 F.3d at 1112. We thus uphold the judge’s
decision to exclude Ms. Hubbard’s recanting hearsay
statements.
The defendants suggest that the district court relied on
its inherent powers to exclude Ms. Hubbard’s hearsay
statements. They are incorrect. As explained supra, we
do not quarrel with the district court’s conclusion that
there were insufficient corroborating circumstances to
indicate the trustworthiness of Ms. Hubbard’s hearsay
statements. Thus, Rule 804(b)(3) expressly required the
exclusion of those statements. See id. Accordingly, the
basis for the district court’s ruling was Rule 804(b)(3), not
its inherent powers.
The defendants cite Taylor v. Illinois, 484 U.S. 400 (1988),
for the well-established proposition that it is the jury’s
role to assess the credibility of witnesses. But it is the
judge’s role to determine the admissibility of evidence.
See Fed. R. Evid. 104(a) (“Preliminary questions con-
cerning . . . the admissibility of evidence shall be deter-
mined by the court.”); United States v. Collins, 966 F.2d 1214,
1223 (7th Cir. 1992) (“[I]t is the judge’s role to determine
admissibility of evidence.”). A defendant’s right to offer
testimony is not absolute. See United States v. Scheffer, 523
U.S. 303, 308 (1998) (holding military rule of evidence
making polygraph evidence inadmissible in court martial
proceedings did not violate the accused’s right to present
a defense); Taylor, 484 U.S. at 410 (“The accused does not
have an unfettered right to offer testimony that is . . .
24 Nos. 06-3848, 06-4124, & 06-4399
inadmissible under standard rules of evidence.”);
Malinowski v. Smith, 509 F.3d 328, 338 (7th Cir. 2007)
(concluding the district court did not violate petitioner’s
right to present a defense by excluding victim’s school
counselor’s testimony at trial); Tyson v. Trigg, 50 F.3d 436,
444 (7th Cir. 1995) (“A court does not violate the Con-
stitution every time it sustains an objection to the testi-
mony of one of the defense witnesses, or for that matter
every time it excludes one of those witnesses altogether.”).
Finally, the defendants’ reliance on United States v. Peak,
856 F.2d 825 (7th Cir. 1988), is misplaced. The hearsay
exception at issue there was the state of mind exception
under Rule 803(3). Id. at 834. Rule 803(3) does not
expressly require the exclusion of evidence absent cor-
roborating circumstances clearly indicating the trust-
worthiness of the statement. Rule 804(b)(3) does.
The defendants argue that the exclusion of Ms. Hub-
bard’s statements recanting her prior statements violated
their Sixth Amendment right to confrontation. This
court reviews de novo evidentiary rulings that affect a
defendant’s Sixth Amendment right to confront wit-
nesses. United States v. Gilbertson, 435 F.3d 790, 794 (7th
Cir. 2006). The Confrontation Clause guarantees a defen-
dant an opportunity for effective cross-examination.
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam);
United States v. Ghilarducci, 480 F.3d 542, 548 (7th Cir.), cert.
denied sub nom. Richardson v. United States, 128 S. Ct.
159, and cert. denied, 128 S. Ct. 252 (2007). There is no
guarantee of cross-examination “to whatever extent[] the
defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986) (quoting Fensterer, 474 U.S. at 20). A district
Nos. 06-3848, 06-4124, & 06-4399 25
judge has wide discretion to impose reasonable limits on
cross-examination, and may do so based on concerns
about, inter alia, prejudice, confusion of the issues, or
questioning that is only marginally relevant. Id.; United
States v. Smith, 454 F.3d 707, 714 (7th Cir. 2006). The
defendants had the opportunity to effectively cross-
examine Agent Clifford, and did so. The district judge was
well within his discretion in prohibiting Ms. Shaw from
questioning Agent Clifford about Ms. Hubbard’s recanta-
tion of her earlier statements about Ms. Shaw’s role in the
Young wire transfer. Ms. Shaw was not charged with
participating in the Young wire transfer. Thus, testimony
that Ms. Hubbard originally implicated Ms. Shaw in that
wire transfer and later said she had been untruthful about
that would be only marginally, if at all, relevant. Such
testimony also had a strong potential for confusing the
issues because Ms. Shaw was not charged with the Young
wire transfer and Ms. Hubbard’s credibility was not
directly at issue.
Furthermore, Ms. Hubbard did not recant all of her
prior statements regarding Ms. Shaw’s role in the fraudu-
lent scheme. Had the district court allowed evidence of
Ms. Hubbard’s statements that were exculpatory as to
Ms. Shaw with respect to the Young wire transfer, the
other statements that Ms. Hubbard made to Agent
Clifford implicating Ms. Shaw in the overall scheme
may have been admissible on redirect. See United States v.
Glover, 101 F.3d 1183, 1189 (7th Cir. 1996) (indicating
that where a fragmentary statement is introduced, Fed. R.
Evid. 106 allows an adverse party to require the admission
of any other part of the statement to clarify or explain the
26 Nos. 06-3848, 06-4124, & 06-4399
part already received so as to avoid any misleading
impression created by offering the statement outside of
context). Additional statements made by Ms. Hubbard,
including other things she said on January 20th, could
have been offered to put the recanting statements in their
proper context and to avoid misleading the jury into
believing that Ms. Shaw had no involvement in the fraudu-
lent scheme. During the same January 20th recantation
exculpating Ms. Shaw in the Young wire transfer, Ms.
Hubbard reconfirmed that she and Ms. Shaw had had
several discussions about wiring money into other’s
accounts and Ms. Shaw knew that Ms. Hubbard wired
money into Ms. Young’s account. Ms. Hubbard further
stated that after seeing that the wire transfer was suc-
cessful and knowing how much money Ms. Young and
Ms. Hubbard received, Ms. Shaw said she wanted to get
some money through a wire transfer. Ms. Hubbard made
several very damaging statements about Ms. Young’s
involvement in the scheme in the January 20th statement
as well. The admission of the remainder of Ms. Hubbard’s
statements to Agent Clifford may have been highly preju-
dicial to Ms. Young and would have raised concerns
about Ms. Young’s confrontation rights. See Crawford v.
Washington, 541 U.S. 36, 54, 59 (2004) (defendant’s right
to confrontation violated by admission of testimonial
statements if declarant was unavailable to testify at trial
and defendant did not have a prior opportunity to
cross-examine the declarant); United States v. James, 487
F.3d 518, 525 (7th Cir. 2007) (citing Crawford).
The defendants assert that it was inconsistent for the
district court to allow Ms. Hubbard’s out-of-court state-
Nos. 06-3848, 06-4124, & 06-4399 27
ments to come in through Mr. Jones’s testimony but to
preclude cross-examination of Agent Clifford about Ms.
Hubbard’s recantation of her prior statements about Ms.
Shaw. The Confrontation Clause is not violated by the
admission of co-conspirator statements made in further-
ance of the conspiracy; such statements are not hearsay
under Fed. R. Evid. 801(d)(2)(E) and not “testimonial.”
United States v. Hargrove, 508 F.3d 445, 448-49 (7th Cir.
2007); United States v. Jenkins, 419 F.3d 614, 618 (7th Cir.
2005). The government’s evidence supported the con-
clusion that Ms. Hubbard and the defendants on trial were
involved in a scheme to defraud Washington Mutual. Ms.
Hubbard’s statements to Mr. Jones about Ms. Shaw’s
role in the scheme were statements of a co-conspirator
made during the course of and in the furtherance of a
conspiracy. Thus, those statements were admissible
under Rule 801(d)(2)(E). Ms. Hubbard’s recanting state-
ments were not made during the course of or in further-
ance of the conspiracy and thus do not fall within
Rule 801(d)(2)(E). Moreover, a critical difference exists
between Rule 801(d)(2)(E) and Rule 804(b)(3). The
former, unlike the latter, does not expressly require
corroborating circumstances indicating a statement’s
trustworthiness for admissibility. Therefore, the district
court did not make inconsistent rulings on the admissibil-
ity of Ms. Hubbard’s various out-of-court statements.3
Further, Ms Hubbard’s statements testified to by Mr. Jones
3
The defendants suggest that the district court was biased
against them and made rulings simply based on whether the
proponent was the government or a defendant. The record
does not support this claim.
28 Nos. 06-3848, 06-4124, & 06-4399
were the only co-conspirator statements introduced at
trial and were a relatively small piece of evidence at trial.
The admission of Ms. Hubbard’s statements through
Mr. Jones’s testimony did not violate the Confrontation
Clause.
The district court was well within its discretion to
limit the cross-examination of Agent Clifford by preclud-
ing inquiry into Ms. Hubbard’s statements recanting her
earlier statements about Ms. Shaw’s role in the Young
wire transfer. The decision to exclude this evidence did
not violate the defendants’ rights under the Confrontation
Clause. We find no error, plain or otherwise, in the dis-
trict court’s decision to exclude the evidence.
Even if the district court erred in excluding such evi-
dence, we will not reverse if the error was harmless.
Smith, 454 F.3d at 715. The question is whether the er-
roneous exclusion of evidence “had a substantial
influence over the jury and the result reached was incon-
sistent with substantial justice.” United States v. Savage,
505 F.3d 754, 762 (7th Cir. 2007) (quoting United States
v. Seals, 419 F.3d 600, 607 (7th Cir. 2005)). In deter-
mining whether an error was harmless, we consider
factors such as the importance of the witness’s testimony
in the government’s case, whether the testimony was
cumulative, the presence or absence of corroborating or
contradicting evidence, and the overall strength of the
government’s case. Smith, 454 F.3d at 715.
According to the defendants, Ms. Hubbard was essen-
tial to the government’s case. They contend that the gov-
ernment’s vehement argument to exclude her statements
Nos. 06-3848, 06-4124, & 06-4399 29
strongly suggests it knew the statements would undermine
its case. It is difficult to discern how Ms. Hubbard was
essential to the government’s case when she never even
testified. It seems likely that the government strenuously
opposed introduction of evidence of her January 20
statements because it believed then, as it argues now,
that the statements were irrelevant. It is also difficult to
see how the evidence of Ms. Hubbard’s statements was
essential to the defendants’ case when the jury was not
charged with deciding whether Ms. Shaw—the only co-
defendant about whom Ms. Hubbard recanted any state-
ment—was guilty with respect to the Young wire
transfer—the only wire transfer to which the statements
at issue pertained. The excluded statements would not
have been the only—or even primary—evidence as to the
defendants’ knowledge or intent.
Here, the government’s case against Ms. Shaw was
overwhelming.4 The government offered evidence that Ms.
Shaw’s user identification number was used to reverse
several wire transfers in Pronto, including the Jones wire
transfer, the Hulet wire transfers, and the five wires
printed in her husband’s name. Furthermore, the evidence
also included Ms. Hubbard’s two checks for $10,000
payable to Ms. Shaw shortly after the Jackson wire
transfer and the $60,000 check from Mr. Jones, who testi-
fied he had never met Ms. Shaw. The evidence of Ms.
Hubbard’s statements about Ms. Shaw’s involvement in
4
As discussed below, see infra II.B, the evidence against the
other defendants was overwhelming as well.
30 Nos. 06-3848, 06-4124, & 06-4399
the scheme introduced through Mr. Jones’s testimony was
helpful, but not necessary to the government’s case. This
circumstantial evidence corroborated Ms. Hubbard’s
statements about the scheme, particularly Ms. Shaw’s
direct participation in it. Therefore, the exclusion of Ms.
Hubbard’s January 20 statements recanting her prior
statements of Ms. Shaw’s involvement in the Young wire
transfer, even if erroneous, was harmless.
B. Sufficiency of the Evidence
The defendants contend that the evidence at trial was
insufficient to prove their knowledge and intent to de-
fraud. Their burden in doing so is heavy. United States v.
Useni, 516 F.3d 634, 646 (7th Cir. 2008). When the suffi-
ciency of the evidence is challenged, we review the evi-
dence and all reasonable inferences from it in the light
most favorable to the verdict. Id. We “will reverse only
if no rational trier of fact could find the defendants
guilty beyond a reasonable doubt.” United States v. DeSilva,
505 F.3d 711, 715 (7th Cir. 2007); see also Useni, 516 F.3d
at 646.
A conviction for bank fraud under 18 U.S.C. § 1344
requires proof of, inter alia, the defendant’s knowing
participation in a scheme to defraud a bank, see United
States v. Yoon, 128 F.3d 515, 523 (7th Cir. 1997); United
States v. Ross, 502 F.3d 521, 530-31 (6th Cir. 2007), cert.
denied, 128 S. Ct. 1723 (2008), and the defendant’s intent
to defraud the bank, United States v. Lamarre, 248 F.3d 642,
649 (7th Cir. 2001). “Intent to defraud” means that the
Nos. 06-3848, 06-4124, & 06-4399 31
defendant “acted willfully and with specific intent to
deceive or cheat, usually for financial gain for one’s self
or the causing of financial loss to another.” Id.; see also
United States v. Sloan, 492 F.3d 884, 891 (7th Cir. 2007). The
intent to defraud may be proven by circumstantial evi-
dence and inferences drawn from the scheme itself.
Lamarre, 248 F.3d at 649. Falsifying information on
loan documents is circumstantial evidence of intent to
defraud. Id.
The government offered some direct evidence of the
defendants’ knowledge of the scheme and intent to de-
fraud the bank, that is, it produced Mr. Jones’s testimony
that Ms. Hubbard had identified “Ieanis” as an insider
involved in the scheme. And we agree with the
district court that the circumstantial evidence was over-
whelming. The evidence against Ms. Young established
that she was the sister of Ms. Hubbard, one of the
insiders at Washington Mutual. Ms. Young’s checking
account had very low or negative balances in late 2002
and early 2003. But on January 28, $194,471.70 was trans-
ferred from Washington Mutual, the bank where her
sister worked, into Ms. Young’s checking account in
Texas, even though she was not a Washington Mutual
mortgage loan customer. The wire transfer sheet used to
request the transfer contained Ms. Young’s name, the
name of her bank, Bank One, and her bank account num-
ber. The jury reasonably could infer that Ms. Young’s
personal information was on the wire transfer sheet
because she had given that information to Ms. Hubbard.
Phone records support the inference that Ms. Young and
32 Nos. 06-3848, 06-4124, & 06-4399
Ms. Hubbard discussed the scheme to defraud Washington
Mutual and that Ms. Young gave her account informa-
tion to Ms. Hubbard in the days leading up to the wire
transfer. Their telephone conversations increased signifi-
cantly during the ten days surrounding the wire transfer.
Ms. Young’s actions following the inexplicable transfer
of $194,471.70 into her account provided additional
circumstantial evidence of her knowledge and intent. Ms.
Young never attempted to determine why she received
such a large sum of money from Washington Mutual—the
bank where her sister worked. Nor did she attempt to
notify her bank or Washington Mutual that a mistake
apparently had been made involving her account. Instead,
the day after the wire transfer, as her bank records show,
Ms. Young opened a new savings account and transferred
$94,243.58 into that new account. She also obtained
a cashier’s check made payable to Ms. Hubbard for
$97,000—a little more than half of the money that had been
transferred into her account the day before. It was reason-
able for the jury to infer that this was a kickback to Ms.
Hubbard for her role in the fraudulent wire transfer. The
bank records also show that the following day, $45,207.12
was withdrawn from Ms. Young’s new savings account.
Ms. Young argues that the government had little evi-
dence of her activities after the wire transfer on January 28.
But the government was not required to prove what
Ms. Young did with the money she received in order to
prove her guilty of bank fraud. See 18 U.S.C. § 1344; United
States v. Abboud, 438 F.3d 554, 590 (6th Cir. 2006); United
States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000); see also
Federal Criminal Jury Instructions of the Seventh Circuit 266
Nos. 06-3848, 06-4124, & 06-4399 33
(1999). The fact that Ms. Young did not go on a spending
spree or purchase big ticket items does not exculpate her.
Nor does it negate the reasonable inference of her knowl-
edge of the scheme and intent to defraud the bank. Quite
possibly, Ms. Young restrained her spending so as not
to draw attention to her new-found riches.
With respect to Ms. Shaw, the evidence was more than
sufficient to allow a reasonable jury to conclude that she
had the requisite knowledge and intent to defraud.
The evidence supported a reasonable inference that Ms.
Shaw was an insider at Washington Mutual and a key
player in the fraudulent scheme. As an opener, her job
responsibilities would not have included accessing wire
transfers in Pronto. But nonetheless, the evidence raises
a reasonable inference that she accessed wire trans-
fers—repeatedly. Every Washington Mutual employee
who reversed a wire transfer in Pronto left a digital
fingerprint. The investigation revealed that Ms. Shaw’s
user identification number was used to reverse the
March 28 wire to Mr. Jackson, which preceded the real
wire transfer of April 1; the April 29 wire transfer to
Mr. Jones and all the Hulet wires, which occurred after
Ms. Hubbard had left Washington Mutual’s employ;
and lastly, the five wires printed in Ms. Shaw’s husband’s
name. While it is possible that another Washington
Mutual employee used Ms. Shaw’s identification number
to reverse the wire transfers, the jury properly could infer
that it was Ms. Shaw using her own identification num-
ber. The timing of the Jones wire transfer and all of the
Hulet wires after Ms. Hubbard had left the bank meant
that Ms. Hubbard was no longer in a position to reverse
34 Nos. 06-3848, 06-4124, & 06-4399
these wire transfers, yet Ms. Shaw remained at the bank
where she could. In addition, the Jones wire transfer
was effected in a way similar to that of the other wire
transfers in the scheme, and the authorizing signatures
on the Jones wire transfer were identical to those on the
worksheet for the Hulet wire transfer. The jury could
reasonably infer Ms. Shaw’s intent to defraud from her
creation of fraudulent wire transfers and wire reversals.
See Lamarre, 248 F.3d at 649.
And there was more. Shortly after the Jackson wire
transfer, Ms. Shaw received two personal checks for
$10,000 from Ms. Hubbard who had just received a per-
sonal check from Mr. Jackson for $125,000. The jury could
reasonably infer these $10,000 checks were payment for
Ms. Shaw’s role in the Jackson wire transfer. As the
government argues, it is highly unusual for one co-
worker to give another co-worker $20,000, for no appar-
ent reason. The evidence was that Ms. Shaw actually
received these suspicious checks—they were deposited
into her own bank account. Moreover, the evidence
established that after the Jones wire transfer, Mr. Jones
obtained a cashier’s check payable to Ms. Shaw, whom
he had never met, in the amount of $60,000. Mr. Jones
testified that Ms. Hubbard had instructed him to divide
the proceeds of the wire transfer three ways and to obtain
two cashier’s checks, one for her and one for Ms. Shaw.
And the evidence raised an inference that someone other
than Ms. Hubbard caused the Jones wire transfer; Ms.
Hubbard had left Washington Mutual the day before.
Thus, the jury reasonably could infer that the $60,000
cashier’s check was payment for Ms. Shaw’s knowing
and intentional role in the Jones wire transfer.
Nos. 06-3848, 06-4124, & 06-4399 35
Yet Ms. Shaw argues that there was no evidence as to
what she was told about the checks she received from
Mr. Jones and Ms. Hubbard. Like Ms. Young, Ms. Shaw
did not spend all of the money she obtained immediately.
But as stated, quick spending of ill-gotten gains is not an
element of bank fraud. See Abboud, 438 F.3d at 590;
Dadi, 235 F.3d at 950. Anyway there was evidence that Ms.
Shaw spent a good deal of the money in a short period
of time on frills such as expensive jewelry, a honeymoon
to a resort in Jamaica, and new furniture. The fact that
she did not spend all of the money does not negate the
reasonableness of the inference of her knowledge and
intent to defraud. The jury could have inferred that Ms.
Shaw did not spend more of the money more quickly
in order to avoid calling too much attention to her
sudden windfall.
Finally, Mr. Jackson’s close friendship with Ms. Hubbard
was not the only evidence regarding his knowledge and
intent. Mr. Jackson was not a Washington Mutual cus-
tomer, yet he received a wire transfer of $250,641.40 into
his newly opened bank account. This account had carried
a very low and even negative balance right before the
transfer. There was no evidence that Mr. Jackson ever
questioned the wire transfer or notified the bank that an
error had been made. Importantly, the wire transfer
worksheet contained Mr. Jackson’s name, his bank name,
and his personal checking account number. As with Ms.
Young, the jury could draw a reasonable conclusion
from this evidence that Mr. Jackson had given this infor-
mation to Ms. Hubbard. Also as with Ms. Young, telephone
records showed a marked increase in the number and
36 Nos. 06-3848, 06-4124, & 06-4399
duration of telephone calls between Ms. Hubbard and
Mr. Jackson in the ten days surrounding the wire transfer.
From this evidence, the jury could reasonably infer that
they were planning and discussing the fraudulent wire
transfer to Mr. Jones’s account. The evidence of what
Mr. Jackson did with the money wired to his account
also raises an inference of knowledge and intent. He
quickly wrote a personal check for $125,000 payable to
Ms. Hubbard. The jury could infer that this was
Ms. Hubbard’s kickback for her role in the wire transfer.
Mr. Jackson spent the money he fraudulently obtained
almost as soon as it hit his account, for cash, furniture,
vehicles, and gifts to family and friends. His bank account
was back to a near $0 balance in less than three months.
Mr. Jackson’s extraordinary spending spree raises a
reasonable inference of his knowing participation in the
scheme and intent to defraud.5
In sum, the documentary evidence of the defendants’
knowing participation in the scheme to defraud and
intent to defraud Washington Mutual as corroborated
by Mr. Jones’s testimony as to how the scheme worked
while he was involved was overwhelming. Therefore, the
defendants’ challenge to the sufficiency of the evidence
fails.
5
As noted, a spending spree is not a required element of
bank fraud. Nonetheless, a spending spree may typically
follow such fraudulent behavior.
Nos. 06-3848, 06-4124, & 06-4399 37
C. Prosecutor’s Remarks in Rebuttal
The defendants argue that during closing argument
the government improperly commented on their deci-
sions not to testify. The prosecutor may comment on the
weakness of the defense case in closing arguments. United
States v. Stark, 507 F.3d 512, 519 (7th Cir. 2007). But the
prosecutor may not make direct or indirect comments
that invite the jury to draw an adverse inference from a
defendant’s decision not to testify. Griffin v. California, 380
U.S. 609, 614 (1965); Stark, 507 F.3d at 519. Improper
indirect comments occur “only if (1) the prosecutor mani-
festly intended to refer to the defendant’s silence or (2) a
jury would naturally and necessarily take the remark for
a comment on the defendant’s silence.” United States v.
Mietus, 237 F.3d 866, 871 (7th Cir. 2001).
Where, as here, the defendants failed to object to the
allegedly improper comment when made, this court
reviews the comments for plain error. DeSilva, 505 F.3d
at 717. Under this standard, the defendants have the
burden of demonstrating that the remark was improper,
that it denied them a fair trial, and that the outcome
would have been different absent the remark. Id. at 718-19.
If the remark is improper, the court determines whether
the comment, considered in context of the record as a
whole, denied the defendants a fair trial. Id. at 719. In so
doing, we consider “(1) the nature and seriousness of the
statement; (2) whether the statement was invited by the
conduct of defense counsel; (3) whether the district court
sufficiently instructed the jury to disregard such state-
ment; (4) whether the defense could counter the improper
38 Nos. 06-3848, 06-4124, & 06-4399
statement through rebuttal; and (5) whether the weight
of the evidence was against the defendant.” Id.
The defendants have not shown that the prosecutor’s
single comment in rebuttal that he was not sure he
heard any explanation “from her” about where the $60,000
came from was improper. We agree that with the gov-
ernment that its attorney, Mr. Hotaling, did not refer to
Ms. Shaw’s silence but rather to the lack of explanation
by her counsel, Ms. Winslow. The context of the rebuttal
argument surrounding the remark supports this view. The
prosecutor prefaced his rebuttal by stating that he was
going “to talk a little bit about all of the different things
that [the jurors] have heard from all of the different
attorneys during the course of the trial—during the
course of closing arguments. So I will just take it in the
order that you heard it.”
In her closing argument Ms. Winslow talked about the
two wire transfers with which Ms. Shaw was alleged
to have been involved, the typical patterns of money
flow into and out of accounts in a fraudulent scheme,
and the absence of such a pattern with Ms. Shaw’s account.
She addressed Ms. Shaw’s alleged “spending spree,” the
computers, wire transfers and reversals, and electronic
fingerprints. Ms. Winslow specifically discussed the two
$10,000 checks from Ms. Hubbard to Ms. Shaw that the
government had attempted to show were a kickback for
the Jackson wire transfer. This discussion fills one page
of the trial transcript. Then Ms. Winslow moved on to the
$60,000 check, saying: “There’s a lot to be said about this
check and Bruce Jones . . . .” But while Ms. Winslow later
Nos. 06-3848, 06-4124, & 06-4399 39
talked about Mr. Jones, she did not say much about the
$60,000 check. The prosecutor merely pointed this out. We
cannot conclude that the prosecutor was referring to the
lack of evidence presented by Ms. Shaw herself (and
inferentially the other defendants).
But even if the prosecutor’s remark is viewed as im-
proper, the defendants must show that it denied them
a fair trial and that the outcome would have been different
but for the remark. This burden proves insurmountable
for them. The remark was not inflammatory. It was not a
direct reference to the defendants’ failure to testify. The
remark could be understood as a response to Ms. Wins-
low’s statement in closing that “there was a lot to be said
about” the $60,000 check and Mr. Jones. Ms. Winslow
really did not say much about why Mr. Jones gave Ms.
Shaw the check. Her comments discussed what the evi-
dence showed or did not show about what happened
after Ms. Shaw received the money. No objection was
made and no curative instruction was given at the time.
Since the remark was made in rebuttal argument, the
defendants had no opportunity to counter it. But this
single remark was made in passing and certainly was not
the emphasis of the government’s arguments.
Furthermore, the district court instructed the jury—both
at the beginning and at the end of trial—that the govern-
ment has the burden of proving the defendants’ guilt
beyond a reasonable doubt and that this burden remains
with the government throughout the case. The court
further instructed that the defendants are never required
to prove their innocence or to produce any evidence at
40 Nos. 06-3848, 06-4124, & 06-4399
all. The court specifically instructed: “A defendant has an
absolute right not to testify. The fact that the defendants
did not testify should not be considered by you in any
way in arriving at your verdict.” Generally we may
presume that the jury followed the court’s instructions.
United States v. Warner, 498 F.3d 666, 683 (7th Cir. 2007),
reh’g and suggestion for reh’g en banc denied, 506 F.3d 517 (7th
Cir. 2007); United States v. Puckett, 405 F.3d 589, 599 (7th
Cir. 2005). Nothing in this record suggests that the jury
was unable, or chose not, to follow these instructions.
And, significantly, as explained supra, the evidence
against all defendants was overwhelming. Thus, even if
the prosecutor improperly commented on Ms. Shaw’s
right to remain silent, when viewed in context of the
record as a whole, we cannot say that the remark deprived
the defendants of a fair trial or that the outcome would
have been different absent the remark.
III. Conclusion
For the foregoing reasons, we A FFIRM the defendants’
convictions.
8-29-08