United States v. Phillips
2014 U.S. App. LEXIS 4898
7th Cir.2014Background
- Betty and Wayne Phillips filed multiple fraudulent trust tax returns for 2008–2009 claiming large refunds; the IRS issued a $352,528 refund check that the couple endorsed and deposited into a joint account.
- The IRS served summonses in December 2009; shortly thereafter the couple withdrew most of the refund funds in multiple rapid cash withdrawals.
- Betty submitted trust returns under her own name and later under the name Samara Beth El Bey; some of those returns were not referenced by name in the indictment.
- Betty and Wayne were indicted in early 2011; Betty proceeded pro se, was convicted of conspiracy to defraud (18 U.S.C. § 286) and making a false claim (18 U.S.C. § 287), and was sentenced to 41 months and restitution of $352,528.
- On appeal Betty challenged (1) constructive amendment of the indictment, (2) admission of the Betty Phillips Trust returns, and (3) a Fifth Amendment comment on her silence; the Seventh Circuit affirmed.
Issues
| Issue | Phillips' Argument | Government's/Respondent's Argument | Held |
|---|---|---|---|
| Constructive amendment of the indictment | Introduction and reliance on Betty Phillips Trust returns expanded charges beyond the grand jury’s indictment | Indictment’s time frame and conspiracy language encompassed all returns; defendant had notice | No constructive amendment; evidence fit within charged conspiracy timeframe |
| Admissibility of Betty Phillips Trust returns | Returns were other-act evidence and should be excluded (or limited) under Rule 404(b) | Returns were direct evidence of the conspiracy (same pattern) and admissible; no limiting instruction requested | Admission was not an abuse of discretion; returns were direct evidence and properly admitted |
| Failure to give a limiting instruction | District court erred by not giving a limiting instruction regarding other-act evidence | No request was made; limiting instructions are not mandatory absent request | No reversible error; defendant did not request instruction |
| Comment on defendant’s silence (Fifth Amendment) | Agent’s testimony and prosecutor’s closing implied refusal to speak, violating Fifth Amendment | Testimony and argument legitimately highlighted suspicious conduct/timing, not silence; record did not show refusal | No plain-error: remarks were not manifestly intended or naturally taken as comments on silence |
Key Cases Cited
- United States v. Presbitero, 569 F.3d 691 (7th Cir. 2009) (plain-error review and notice importance in constructive amendment claims)
- United States v. Pigee, 197 F.3d 879 (7th Cir. 1999) (definition of constructive amendment)
- United States v. Trennell, 290 F.3d 881 (7th Cir. 2002) (material difference requirement for constructive amendment)
- United States v. Alhalabi, 443 F.3d 605 (7th Cir. 2006) (admission of related uncharged acts that fit charged scheme does not necessarily amend indictment)
- United States v. Vargas, 689 F.3d 867 (7th Cir. 2012) (abuse of discretion standard for evidentiary rulings)
- United States v. Harris, 542 F.2d 1283 (7th Cir. 1976) (overt acts after formation of conspiracy admissible even if uncharged)
- United States v. Elizondo, 920 F.2d 1308 (7th Cir. 1990) (similar rule on admissibility of overt acts)
- United States v. Akinrinade, 61 F.3d 1279 (7th Cir. 1995) (limiting instructions not required unless requested)
- United States v. Della Rose, 403 F.3d 891 (7th Cir. 2005) (plain-error review for Fifth Amendment comment claims)
- United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987) (defendant’s right to remain silent)
- United States v. Andreas, 216 F.3d 645 (7th Cir. 2000) (standard for whether government remarks are taken as comment on silence)