United States v. Locke, 2011 U.S. App. LEXIS 12464

Locke, a real estate agent, was indicted in 2008 on 14 counts including wire fraud and conspiracy; government pursued five counts where Locke was the principal offender.
At trial, evidence focused on five transactions in 2005 involving false loan applications and forged documents; seven lenders/mortgage professionals testified to the materiality of the misrepresentations using terms like fraud or misrepresentation.
Locke testified in her own defense alleging good faith reliance on a credit-repair book and denied forging documents or knowingly deceiving lenders.
The jury convicted Locke on all five wire fraud counts; the district court later sentenced her to 71 months and about $2.36 million in restitution, including conduct not tied to convicted counts.
On appeal Locke challenged (i) the district court’s failure to strike certain witnesses’ testimony and (ii) the sentencing decisions based on unconvicted conduct; the Seventh Circuit addressed these issues.
The court ultimately vacated Locke’s sentence and restitution order and remanded for resentencing, while affirming the conviction on the five counts of wire fraud.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of lay witness opinions	Locke contends witnesses’ use of ‘fraud’/‘misrepresentation’ were improper lay opinions and could mislead on intent.	The government argues testimony helped explain materiality and was not a legal conclusion; the court properly instructed the jury.	No plain error; conviction affirmed.
Use of unconvicted conduct for offense level	Locke argues the district court erred by treating unconvicted counts as relevant conduct to raise the offense level.	The government contends the unconvicted acts are relevant conduct under the case law and should influence the level.	District court clearly erred; remand for resentencing with explicit findings.
Restitution tied to unconvicted conduct	Restitution was based on losses not connected to the convicted counts; MVRA limits restitution to proven scheme elements.	The government maintains MVRA allows restitution for victims harmed by the overall scheme, even if some counts were dismissed.	District court erred; remand for restitution findings consistent with the scheme and MVRA.

Neder v. United States, 527 U.S. 1 (U.S. 1999) (materiality of misrepresentations in fraud cases)
United States v. Powell, 576 F.3d 482 (7th Cir. 2009) (materiality and elements in fraud context)
United States v. Roberts, 534 F.3d 560 (7th Cir. 2008) (materiality in wire fraud cases)
United States v. Noel, 581 F.3d 490 (7th Cir. 2009) (limit of lay opinion as legal conclusions; helpfulness requirement)
United States v. Van Eyl, 468 F.3d 428 (7th Cir. 2006) (lay opinion testimony and intent considerations)
United States v. Hach, 162 F.3d 937 (7th Cir. 1998) (elements and permissible testimony in fraud cases)
United States v. Belk, 435 F.3d 817 (7th Cir. 2006) (restitution context and scheme considerations)
United States v. Smith, 218 F.3d 777 (7th Cir. 2000) (relevant conduct and sentencing considerations)
United States v. Ojomo, 332 F.3d 485 (7th Cir. 2003) (relevant conduct analysis requirements)