United States v. Louis Javell , 695 F.3d 707 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3044
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
L OUIS L. JAVELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 233—John W. Darrah, Judge.
A RGUED M ARCH 26, 2012—D ECIDED A UGUST 30, 2012
Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
B AUER, Circuit Judge. On March 12, 2009, a federal
Grand Jury indicted Louis L. Javell and his co-defendant,
Aysha Arroyo, on two counts of mortgage-based wire
fraud in violation of Title 18 U.S.C. § 1343. Both de-
fendants pleaded not guilty and proceeded to trial and
on February 22, 2011, a jury returned guilty verdicts
against both defendants. Javell filed a motion for a new
2 No. 11-3044
trial; it was denied, and he was sentenced to a term of
12 months and one day in prison on each count, ordered
to run concurrently. This appeal followed. We affirm.
I. BACKGROUND
In December 2005, the FBI began an undercover in-
vestigation into mortgage fraud, specifically targeting
real estate professionals who were willing to prepare
false mortgage loan applications or secure the required
documentation to be included with loan applications
that they knew to be fraudulent.
In 2007, a cooperating individual (“CI”) working with
the FBI got in touch with a man named Abraham Skaff,
an accountant and tax preparer in the Chicago area. The
CI informed Skaff that he had control over a specific
parcel of real estate known as the Everett Property.
Though he did not own it, the CI told Skaff that he had
control over its owner via a power of attorney. The CI
explained that he had recruited a straw buyer named
Hussein who would purchase the Everett Property
using a fake identity known as Emad Adham. Unknown
to Skaff, Hussein was actually an undercover agent
(“UC”) for the FBI. The CI enlisted Skaff to help him
find a mortgage company that would assemble and
submit a fraudulent loan application to a lender for the
purchase of the Everett Property. The CI explained that
he planned to sell the property for as much as possible,
then let it fall into foreclosure. With this knowledge,
Skaff referred the CI to Louis Javell, the owner of a mort-
gage brokerage company called Bell Capital.
No. 11-3044 3
Toward the end of June 2007, a loan processor and
employee of Javell’s named Aysha Arroyo began
assisting the CI in assembling a loan application in
Adham’s name. A few weeks later on July 25, the CI, the
UC, Javell, Arroyo, and Skaff met at the Bell Capital
offices, which were under surveillance by the FBI, to
discuss a problem with Adham’s loan application. At the
meeting, Javell and Arroyo explained that Adham’s
bank account had not been opened for the requisite
number of days, and that this would be grounds for
the lender’s rejection of the application. As a solution,
Arroyo suggested Adham find someone with a seasoned
bank account who would be willing to temporarily add
Adham’s name to it. Alternatively, Arroyo offered to
contact someone she knew at a local bank who, for a
fee, would be willing to back-date an account with
Adham’s name on it. The CI and the UC opted for the
latter option, but when Arroyo’s contact did not pan
out, the FBI added Adham’s name to the seasoned
bank account of another fictitious identity created by
the FBI. Soon after, the completed application was sub-
mitted by Bell Capital.
On August 1, the loan having been approved for
$150,000, the CI and the UC closed on the Everett
Property and Javell was issued a check for $5,234 which
was deposited into Bell Capital’s business account.
In March 2009, Javell and Arroyo were indicted. After
Arroyo’s arrest, she waived her Miranda rights and was
interviewed by the FBI. During the interview, Arroyo
admitted she had worked with Skaff on prior occasions,
4 No. 11-3044
that she knew that some of the tax returns and subse-
quent documents provided by Skaff were fraudulent,
and that she submitted them to lenders anyway. The
agents played for Arroyo portions of surveillance re-
cordings from inside the Bell Capital offices; Arroyo
identified herself on one of the recordings. When the
agents asked what she was discussing in the recording,
Arroyo admitted to speaking with a new customer
and explaining to him, as she did for the CI and the UC,
that she had a contact at a bank who would open a
new bank account for him, back-date it, and issue him
a fraudulent Verification of Deposit.
Both Javell and Arroyo pleaded not guilty and a jury
trial was scheduled. Prior to trial, the government in-
formed both defendants that it intended to introduce
Arroyo’s post-arrest statements through the testimony
of Agent Secor, the FBI agent who had interviewed
Arroyo and composed a post-interview report. Javell
argued that the admission of Arroyo’s post-arrest state-
ments via Agent Secor violated the Confrontation Clause
of the Sixth Amendment. On Javell’s motion, the district
court granted a Bruton hearing and ordered the govern-
ment to submit a Bruton statement detailing exactly
what they intended to introduce at trial. See Bruton v.
United States, 391 U.S. 123 (1968). The government com-
plied. The statement specified the exact information
from the post-arrest report Agent Secor would testify to,
with any facially incriminating references to Javell or
Bell Capital redacted. The district court reviewed the
government’s Bruton statement and made further
redactions in an effort to remove any indirect references
to Javell or Bell Capital.
No. 11-3044 5
At trial, the government’s Bruton statement was
never published to the jury, but the government did
elicit testimony from Agent Secor which comported
with the Bruton statement approved by the district
court; neither the government nor Agent Secor made
any references to the redacted portions at trial. Ulti-
mately, the jury found Javell and Arroyo guilty.
II. ANALYSIS
Javell claims the district court violated Bruton, its prog-
eny, and Javell’s Sixth Amendment rights by admitting
the post-arrest statements made by Arroyo and by
failing to properly instruct the jury about the rules of non-
imputation. According to Javell, Arroyo’s post-arrest
statements directly implicated Javell and had the jury
not heard those statements, Javell would not have
been convicted. We disagree.
A. Javell’s Bruton Claim
Although this Court typically reviews a district court’s
evidentiary rulings for an abuse of discretion, a district
court’s application of the principles promulgated in
Bruton and its progeny is reviewed de novo. United States
v. Green, 648 F.3d 569, 574 (7th Cir. 2011); United States v.
McGowan, 590 F.3d 446, 453 (7th Cir. 2009).
The Sixth Amendment to the United States Constitution
declares, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted by witnesses against
him . . . .” U.S. C ONST. amend. VI.
6 No. 11-3044
To review: in Bruton v. United States, Bruton and his
accomplice had been charged with armed postal robbery,
and at joint-trial, a postal inspector testified that the
accomplice had orally confessed to having committed the
crime with Bruton, but the accomplice himself never
took the stand. Bruton, 391 U.S. at 124. Both Bruton and
the accomplice were convicted. Id. On appeal to the
Eighth Circuit, the accomplice’s conviction was set
aside because the court ruled the confession had been
obtained in violation of his Miranda rights. Id. “However,
[the Eighth Circuit] . . . affirmed Bruton’s conviction
because the trial judge instructed the jury that although
[the accomplice]’s confession was competent evidence
against [the accomplice,] it was inadmissible hearsay
against [Bruton] and therefore had to be disregarded
in determining [Bruton]’s guilt or innocence.” Bruton,
391 U.S. at 124-25. See also, Delli Paoli v. United States,
352 U.S. 232 (1957) (holding that inadmissible hearsay
against a defendant could still be entered into evidence
as long as the declarant was the co-defendant and the
jury was given proper limiting instructions not to
consider the statements against the defendant). On retrial,
the accomplice was acquitted. Id. at 125-26. On certiorari,
the Supreme Court held that “because of the substantial
risk that the jury, despite instructions to the contrary,
looked to the incriminating extrajudicial statements in
determining [Bruton]’s guilt, admission of [the accom-
plice]’s confession in this joint trial violated petitioner’s
right of cross-examination secured by the Confrontation
Clause of the Sixth Amendment.” Id. at 126.
Twenty-one years later, Richardson v. Marsh refined
Bruton. In that case, a defendant and his co-defendant
No. 11-3044 7
were charged with murder and assault. Richardson v.
Marsh, 481 U.S. 200, 202 (1987). At trial, the co-defendant
did not testify but his confession was admitted into
evidence. Richardson, 481 U.S. at 203-04. All references to
the defendant and his participation in the crime were
redacted from the confession and the jury was in-
structed not to consider the co-defendant’s confession
with regard to the defendant. Id. However, the de-
fendant’s subsequent testimony linked him to the co-
defendant’s confession and the defendant was con-
victed. Id. at 205. The defendant’s appeal was denied by
the Michigan Court of Appeals, and his writ of habeas
corpus was denied by the district court. Id. However,
the Sixth Circuit reversed, relying on Bruton, and ruled
that an omission or redaction of a reference to the de-
fendant was effectively diminished if forthcoming
evidence would ultimately connect the defendant to the
non-testifying co-defendant’s “powerfully incriminating”
confession. Id. at 205-06 (quoting Marsh v. Richardson,
781 F.2d 1201, 1213 (6th Cir. 1986)).
On certiorari, the Supreme Court upheld the admissi-
bility of the co-defendant’s confession and stated, “[t]he
Confrontation Clause is not violated by the admission of
a non-testifying co-defendant’s confession with a
proper limiting instruction when, . . . the confession is
redacted to eliminate not only the [defendant]’s name,
but any reference to his or her existence.” Richardson,
481 U.S. at 211.
In Gray v. Maryland, Gray and Bell were indicted for
beating a man to death. Gray v. Maryland, 523 U.S. 185, 188
8 No. 11-3044
(1998). At trial, the prosecution sought to enter Bell’s
confession which implicated Gray. Gray, 523 U.S. at 188.
The court ordered the confession be redacted and it
was subsequently read into evidence during trial and
published in written form to the jury. Id. However, the
confession’s redactions only went as far as inserting a
blank space or the word “deleted” or “deletion” where
Gray’s name otherwise would have been. Id. The con-
fession was accompanied by an instruction to the jury
that the confession be considered only with respect to
Bell, and that it was not to be considered with respect
to Gray. Id. at 189. Both Bell and Gray were convicted
and Gray appealed. Id. The Maryland Court of Special
Appeals set aside Gray’s conviction, ruling that admit-
ting the confession violated Bruton. Id. However, Mary-
land’s supreme court reinstated the conviction. Id. On
certiorari, the U.S. Supreme Court found that Bell’s con-
fession contained inferences and implications which
were distinguishable from Bruton and Richardson
because they directly incriminated Gray, as opposed to
incriminating him “only when linked with evidence
introduced later at trial.” Id. at 196 (citing Richardson,
481 U.S. at 208 (quotations omitted)). “Moreover,” the
Court continued, “the redacted confession with the
blank prominent on its face . . . facially incriminates
[Gray] . . . and the accusation that the redacted confes-
sion makes is more vivid than inferential incrimination,
and hence more difficult to thrust out of mind.” Gray,
523 U.S. at 196 (citing Richardson, 481 U.S. at 208-09 (inter-
nal quotations omitted)). In other words, so long as it
was accompanied by a proper limiting instruction to
No. 11-3044 9
the jury and it did not facially incriminate the de-
fendant, the co-defendant’s redacted confession was
admissible at trial.
Similarly in the recent mortgage-fraud case United
States v. Green, the government introduced the confes-
sion of a co-defendant with the defendant’s name
redacted and replaced with “straw buyer.” United States
v. Green, 648 F.3d 569, 573 (7th Cir. 2011). Later, evidence
was introduced making it clear to the jury that “straw
buyer” was a substitute for the defendant’s name.
Green, 648 F.3d at 573. The defendant moved for a
mistrial but the district court denied the motion. Id. at
574. On appeal, this Court affirmed the district court’s
ruling that the use of “straw buyer” in the redacted
confession “was not so obvious a reference to the defen-
dant as to violate Bruton,” and that “[t]aken alone,
nothing in the [co-defendant]’s statement . . . suggest[ed]
that the [defendant] was the straw buyer.” Id. at 575-76.
Despite Javell’s repeated arguments to the contrary,
not one of the cases above support his position that
the government’s Bruton statement violated his Sixth
Amendment rights. Each of the aforementioned cases
dealt with redacted confessions which facially incrim-
inated or indirectly implicated the defendant. The fact
remains that in Javell’s case, nothing in the govern-
ment’s Bruton statement was facially incriminating, nor
did any part of the statement even reference Javell indi-
rectly, as for instance in Greene, by redacting and replacing
his name with a more innocuous phrase. Instead, any
reference to Javell or Bell Capital that was not already
10 No. 11-3044
redacted by the government, was redacted by the
district court at the Bruton hearing.
For example, the government’s original Bruton state-
ment included a sentence which read, “[a]s a Loan Pro-
cessor, it is Arroyo’s responsibility to take loan applica-
tions and other mortgage-related paperwork from the
Loan Officers at [redacted] and ensure the paper is in
order prior to submitting the paperwork for loan ap-
proval.” (Emphasis added.) The district court ordered
the word “at” to be redacted because the court thought
it ran “the risk of facially calling attention to Bell [Capi-
tal],” and the district court knew that such a redaction
would prevent a Gray scenario from occurring. The
district court made four more similar redactions to
the government’s Bruton statement which resulted in a
statement that if presented in isolation from other evi-
dence, would prevent a jury from knowing anyone
other than Arroyo was involved; after the final redac-
tions were made, there was no indication that Javell or
Bell Capital even existed.
This poses the question: What if the government had
never introduced their Bruton statement or any other
evidence of Arroyo’s confession? Could a reasonable
juror still have concluded that Javell was guilty of
mortgage-based wire fraud? Yes. The government
properly introduced a plethora of other evidence
against Javell, including recordings of Javell discussing
the fraudulent mortgage application and the need
for Adham to secure a seasoned bank account. Addi-
tionally, the government also presented evidence to
No. 11-3044 11
show that after closing on the Everett property, Javell
advised the CI and the UC on how best to let the
property fall into foreclosure; that failing to make the
first few mortgage payments could raise red flags with
the FBI, who Javell had heard was investigating such
things.
The government’s Bruton statement did not violate
Bruton or its progeny and the district court was correct
to admit it. Javell’s Sixth Amendment rights were not
affected. We find no error.
B. Javell’s Jury Instruction Claim
Next, Javell argues that the district court erred by
failing to instruct the jury to only consider Arroyo’s post-
arrest statements with respect to Arroyo; that they
should not be imputed to Javell.
At trial, Javell never objected to the district court’s jury
instructions, nor did he request that the judge give a
specific, clarifying instruction. As such, we review for
plain error. See United States v. Courtright, 632 F.3d 363,
371 (7th Cir. 2011). “To establish plain error, [Javell]
must show that there was an actual error, that the
error was plain, that the error affected [his] substantial
rights, and that the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.”
Courtright, 632 F.3d at 371 (citing United States v. Canady,
578 F.3d 665, 670 (7th Cir. 2009) (internal quotations
omitted)). To be considered plain, an error must be “so
obvious, crucial, and egregious, that we may and
12 No. 11-3044
should correct it even if no objection was made below.”
Courtright, 632 F.3d at 371 (quoting Backwater, Inc. v. Penn-
American Ins. Co., 448 F.3d 962, 965 (7th Cir. 2006)). Fur-
thermore, “[p]lain error review of jury instructions is
particularly light handed, and we will reverse only if
the error was of such a great magnitude that it prob-
ably changed the outcome of the trial.” Courtright, 632
F.3d at 371 (citing United States v. Moore, 115 F.3d 1348,
1362 (7th Cir. 1997) (internal quotations omitted)).
At the Bruton hearing prior to trial, the district court
summarized Bruton and its progeny and noted the need
for proper limiting instructions. At trial, when Agent
Secor testified as to Arroyo’s post-arrest statements, the
district court instructed the jury “to accept the last
answer made by Agent Secor regarding the seasoned
bank account only insofar as it bears on the issues in
this case regarding Ms. Arroyo.” Later, prior to jury
deliberations, the district court instructed the jury as
to Seventh Circuit Pattern Jury Instruction 3.02:
You have received evidence of a statement said
to be made by Defendant Aysha Arroyo to law en-
forcement officers. You must decide whether the
defendant did in fact make the statement.
Notably, and as Javell ardently calls to our attention,
the district court omitted the last line of the instruction,
which reads, “[y]ou may not consider this statement
as evidence against any defendant other than the one
who made it.”
It is possible that by singling out only one of the state-
ments made by Agent Secor the district court inad-
No. 11-3044 13
vertently communicated to the jury that the remainder
of Agent Secor’s testimony could be properly imputed
to Javell and it is unclear why the district court chose
to omit the last sentence of 3.02. Nevertheless, both
the instruction regarding Agent Secor’s testimony and
the omission of 3.02’s last sentence are of little conse-
quence. “In reviewing the sufficiency of jury instruc-
tions, we look to the instructions as a whole to deter-
mine whether the jury was misled in any way and
whether it had understanding of the issues and its duty
to determine those issues.” United States v. Johnson, 584
F.3d 731, 739 (7th Cir. 2009) (citing United States v.
Berndt, 530 F.3d 553, 555 (7th Cir. 2008) (internal quota-
tions omitted)). “We would only reverse if the instruc-
tions viewed in their entirety, mislead the jurors to
[Javell]’s prejudice.” Johnson, 584 F.3d at 739 (citing United
States v. Smith, 223 F.3d 554, 556 (7th Cir. 2000) (internal
quotations omitted)). Though juries often benefit from
hearing concrete instructions that specify exactly which
evidence and testimony should be considered with
respect to each co-defendant, neither party found it
necessary to request such definition at trial, and nor did
we, upon review of the instructions and record as a
whole, find that the jury was misled or misinformed
as to their responsibilities.
Furthermore, the omission did not result in such preju-
dice to Javell that would require us to reverse for a
finding of injustice. As we previously mentioned, plenty
of evidence was properly introduced at trial, in-
dependent of Arroyo’s post-arrest statements, which
implicated Javell.
14 No. 11-3044
Javell has not met his burden. Finding no plain error
by the district court, we conclude that not only were
Javell’s substantial rights unharmed, but that the fair-
ness, integrity, and public reputation of these judicial
proceedings are intact.
III. CONCLUSION
For the reasons stated herein, we A FFIRM the judgment
of the district court.
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