Case Information
*1 Before P OSNER R IPPLE Circuit Judges , G ILBERT , District Judge .
G ILBERT District Judge
On January jury found Gregory guilty two counts wire fraud viola tion U.S.C. § 1343. On appeal, makes fol lowing three arguments: failure obtain turn Of Southern District Illinois, sitting designation. ‐
over Walker’s seized items from a previous unrelated state case constitutes a Brady violation and prevented Walker presenting his theory defense; (2) district erred when refused give Walker’s proposed buyer instruction jury; and erred in ordering restitution. For following reasons, we affirm court.
In sum, Walker involved mortgage fraud scheme encompassing at least ten different loans and seven different properties Chicago area. Throughout scheme, Walker served as both fraudulent buyer and sell er. He also used his then girlfriend, co defendant Tanya McChristion, as straw purchaser some transactions. With respect two wire fraud counts went trial, Walker fraudulently caused Long Beach Mortgage loan money on two different occasions with properties located Kingston, Chicago, Illinois (“the Kingston prop erty”) Allegheny Street, Park Forest, Illinois (“the Park Forest property”) serving as collateral.
In role as fraudulent buyer, first obtained fraudulent loan Kingston property on May 2005, when submitted loan application through co Carol Simmons, loan processor. Simmons prepared submitted loan application containing false information about Walker’s employment, assets, rental income. Thereafter, sold Kingston McChris tion on January 2006. This transaction, role as fraudulent seller, subject Count Two. To obtain January mortgage on Kingston property, Simmons submitted loan applications behalf McChristion Long Beach Mortgage. application replete false *3 3 2145 information regarding McChristion’s assets, employment, income, earnest money payments. obtained con ‐ trol portion loan proceeds through check made payable Real Deal Construction, company owned Walker. loan Park Forest property, subject
Count Three, was obtained through Walker’s use McChristion as straw buyer. This loan was obtained in similar manner as Kingston loan, wherein Simmons prepared submitted fraudulent loan docu ments in McChristion’s name. In addition listing McChris tion’s fraudulent income information, loan application stated sale price was $137,000; however, trial testified negotiated sale price $86,000. Eventually, loans went into default properties were fore closed on. In sum, Walker’s conduct relating ten fraudulent transactions caused an estimated $956,300 loss Long Beach Mortgage. trial counsel entered his appearance stant case just few weeks prior trial. Counsel filed mo tion continue citing need conduct an investigation determine whether had Sil verthorne claim. Specifically, counsel concerned il legally seized material unrelated state case, possession Police Department, may have been used form the basis the instant federal case. That evidence stems from Walker’s arrest by Secret Service and others for possession gun. During that ar rest, law enforcement seized property from Walker’s home, including third parties’ state identification cards, social secu rity numbers, and credit histories; electronic storage devices; and documents and ledgers. state court held that search was violation Walker’s Fourth Amendment rights and suppressed evidence his state case.
Throughout proceedings, govern ment maintained that evidence for instant case came from lenders, title companies, financial institutions and eye witness testimony, from state search. It further maintained only investigating agency was Housing Urban Development, Secret Service.
During October hearing motion for return subpoena directed Police Department, clarified information sought Walker. Specifically, defense counsel said, “All I’m asking for disclosure police as what they did with this stuff,” “I want know what they did with stuff. That’s all, what police did with stuff.” De fense counsel further explained he was no longer seek ing production seized because “it would be little unwise criminal attorney ask for crimes he wasn’t charged with.” Defense counsel then clarified request alternative, alternatively requesting, pursuant Brady “a disclosure as what Federal Government state authorities” seized property.
The directed the government inquire as the status and location the seized property. As such, the government filed a status report October detailing contact with the South Holland Police De ‐ partment. Specifically, government found seized property still South Holland Police Department’s possession no one had made claim seized prop ‐ erty since seizure. The government further ‐ formed South Police De ‐ partment affirmed had no connection or knowledge instant federal case. Thereafter, not ‐ tempt obtain custody Hol ‐ land Police Department proceeded trial.
At jury instruction conference, proposed following buyer seller instruction:
The existence simpler buyer seller rela tionship between defendant another per son, without more, is sufficient establish criminal enterprise, even where buyer tends resell property. fact de fendant may have bought property other person sufficient without more establish member charged criminal enterprise. In considering whether criminal enter prise simple buyer relationship ex isted, you should consider all evidence, including following factors: Whether transactions involved large quantities properties; ‐ (2) Whether parties had a standardized way doing business over time; (3) Whether sales were on credit or on con signment;
(4) Whether parties had a continuing rela tionship;
(5) Whether seller had a financial stake a resale by buyer; Whether parties had an understanding or properties would be re
sold. No single factor necessarily indicates itself was was engaged simple buyer ‐ seller relationship.
The district court rejected Walker’s proposed buyer ‐ seller instruction.
Ultimately, jury found guilty on both Counts Two and Three indictment. filed motion new trial judgment N.O.V. arguing there was insufficient court’s refusal give buyer ‐ instruction reversible error. The denied motion.
Based on offense level twenty three criminal history category four, sentencing guidelines range seventy eight seven months’ imprisonment. The imposed below guideline sentence six ty months each count run concurrently. Court fur ther imposed three year term supervised release $200 special assessment.
The presentence report (“PSR”) recommended the Court impose restitution in the amount of $956,300 compensate Long Beach mortgage for losses. The Government’s Ver sion of Offense put forth the methodology by which the government calculated loss amount. The loss amounts for various properties were obtained by subtracting sale price victim lender received after recovering posses sion from amount fraudulent loan. Walker objected PSR’s restitution amount only extent he stated unfair impose restitution in amount representing losses caused others scheme evidence showed Walker had made pay ments on mortgages for properties purchased. not, however, object present evidence contrary loss calculations contained PSR. district adopted PSR’s actual loss calculation $956,300 dered restitution joint several with Walker’s co defendants.
We will now consider each arguments turn.
1. Brady Violation
First, argues Brady violation stemming from government’s failure provide him Police Department evidence. He further argues this alleged Brady violation prevented him presenting his theory defense because question contained evidence relevant defense. We review court’s denial motion for new trial based Brady violation for abuse discretion. Wilson 831–32 Where fails preserve Brady violation claim before court, we review plain *8 8 13 2145 error. United States v. Mota , 685 F.3d 644, 648 (7th Cir. 2012). “That means that ‘the alleged Brady violation must be an ob ‐ vious error that affected [the defendant’s] substantial rights and created substantial risk of convicting innocent per ‐ son.” Id. (quoting United States v. Daniel , F.3d 772, 774 (7th Cir. 2009)) (internal quotations omitted).
Here, Walker made it clear to that simply wanted know “what police stuff” government satisfied request when it found that evidence still at Police Depart ‐ ment. After receipt of information, no longer pursued evidence issue. Accordingly, it is appropriate review Walker’s Brady claim plain error. However, claim fails under either plain error or abuse discretion review.
Brady explained failure disclose favorable evi dence upon defendant’s request “violates due process where evidence is material either guilt punish ment, irrespective good faith bad faith prose cution.” Brady v. Maryland U.S. 83, (1963). To succeed Brady claim, bears burden proving evidence is “(1) favorable, suppressed, (3) mate rial defense.” v. Wilson, F.3d (7th Cir. 2001). government’s duty disclose favorable evidence extends beyond evidence its immediate posses sion evidence possession other actors assisting government investigation. Fields Wharrie However, even if govern ment failed disclose material evidence, evidence “suppressed” if knew could have obtained through exercise reasonable diligence. Dimas 1018–19
Walker fails to establish Brady violation for two rea sons. First, the evidence suppressed in the state case was in the control the government or any actors assisting the government in its federal investigation. While Walker has repeatedly contended the suppressed evidence was in some way connected to the instant federal prosecution, Walker has failed show government any actors assisting government investigation had any access knowledge suppressed evidence. To contra ry, government repeatedly denied any knowledge suppressed evidence. government further explained sole investigating agency involved instant investi gation was Housing Urban Development, South Holland Police Department reported had no knowledge instant case. As such, Walker fails establish government suppressed any evidence violation Brady .
Second, Walker failed exercise reasonable diligence obtaining suppressed evidence South Holland Police Department. As was made clear oral argument, Walker never even asked South Department Police De partment provide him evidence. At minimum, would have ask for law enforcement turn over his before he can claim he has made reasonably diligent effort obtain it. Accordingly, South Holland Police Department suppressed within meaning Brady
To extent argues denied due process when failed issue subpoena Police Department evidence, claim fails. ‐ counsel ultimately withdrew his request to obtain evidence. Instead, he sought simply to learn location of evidence. This move was indeed a strategic move by counsel as he acknowledged before district “it would be a little unwise for a criminal attorney to ask for ev ‐ idence crimes he wasn’t charged with.” As such, Walker waived any due process claim involving district court’s failure to issue a subpoena Po ‐ lice Department evidence.
2. Proposed Buyer ‐ Seller Instruction Next, Walker argues he was denied an opportunity present his theory defense when refused give his proposed buyer ‐ seller jury instruction. While Walker not go trial on conspiracy charge, gov ernment still argued involved scheme de fraud. contends entitled his proposed buy er ‐ instruction, an instruction given conspiracy context, because scheme theory relies conspiracy con cepts. We review court’s refusal give requested theory defense jury instruction de novo . United States v. Choiniere F.3d (7th Cir. 2008).
Defendants are automatically entitled any particu lar theory defense jury instruction. Id A is only entitled jury instruction encompasses theory defense if “(1) instruction represents accurate state ment law; (2) instruction reflects theory is supported evidence; (3) instruction reflects theo ry which already part charge; failure include instruction would deny [defendant] fair trial.” Swanquist *11 11 13 ‐ 2145
As indicated in Committee Comment to buyer seller instruction contained in Seventh Circuit Pattern Jury Instruction, “[t]his instruction should be used only in cases in which a jury reasonably could find there only a buyer ‐ seller relationship rather than a conspiracy.” This makes sense. To prove a conspiracy, government must prove more than a buyer ‐ seller agreement. United States v. Gee , F.3d 885, 893–94 (7th Cir. 2000). Specifically, a conspiracy “is an agreement a particular kind ob ject—an agreement to commit a crime … What is required for conspiracy such a case is an agreement to commit some other crime beyond crime constituted agreement itself.” United States v. Lechuga , F.2d 346, (7th Cir. 1993). Accordingly, a mere buyer ‐ seller relationship provides a defense to a conspiracy charge because negates an essential element, agreement to commit crime, a conspiracy. See United States v. Turner F.3d (7th Cir. 1996) (In context drug conspiracy charge, “[t]he purpose ‘mere buyer ‐ seller instruction’ is to ensure jury understands an agreement purchase contraband, without any other agreement achieve another criminal objective, is conspiracy.”)
The buyer seller instruction, however, does provide defense an element contained charge wire fraud. government must prove following elements con vict defendant wire fraud: “(1) defendant participat ed scheme defraud; (2) intended de fraud; use interstate wire furtherance fraudulent scheme.” Turner argues buyer instruc tion encompasses defense scheme defraud ele ment. However, “a scheme defraud conduct intended *12 12 13 ‐ 2145 or reasonably calculated to deceive a person of ordinary prudence comprehension.” United States v. Hanson , 41 F.3d 580, (10th Cir. 1994). It does not involve an agree ‐ ment another to commit crime. Accordingly, ex ‐ istence of mere buyer ‐ seller relationship is not defense scheme ‐ defraud element of wire fraud. As such, failure include buyer instruction deny fair trial error for district court reject that instruction.
3. Restitution
Finally, contends district court’s restitution order erroneous. Specifically, alleges meth odology employed district determining restitution failed accurately determine amount of actual loss identity of victims. We review legality of an award restitution de novo district court’s restitu tion calculation abuse discretion. United States v. Rob ers , F.3d (7th Cir. 2012). However, where de fendant fails raise specific arguments regarding restitu tion award district court, we employee plain error re view. United States v. Berkowitz F.3d Under plain error review, we will overturn district court’s restitution order only if committed error would deprive substantial rights. Id 852–53.
The Mandatory Victims Restitution Act (“MVRA”) pro vides “shall order” defendants convicted specified offenses “make restitution victim offense.” U.S.C. § 3663A(a)(1). purpose MVRA “ensure victims recover full amount their losses, but nothing more.” Newman *13 13 (7th Cir. 1998). Where the crime involves “damage or loss or destruction of property of victim of the of fense” the restitution order must order the defendant
(A) return the property the owner of the property or someone designated by the owner; or
(B) if return of the property under subpara graph (A) is impossible, impracticable, or inadequate, pay amount equal — (i) the greater of —
(I) the value of the property on date of damage, loss, destruction; (II) value property on date sentencing, less (ii) value (as date property is returned) any part property is returned. U.S.C. § 3663A(b)(1). Loss mortgage fraud cases is de termined “subtract[ing] sale price lender received after recovered possession amount original loan … .” United States v. Green F.3d (7th Cir. 2011). may adopt actual loss amount con
tained PSR. Berkowitz 853–54 When opts adopt PSR’s restitution calculation, burden then falls defendant demonstrate amount unreliable. Id “When has failed produce any call ing the report’s accuracy into question district court may rely entirely on the PSR.” Taylor
Here, Walker failed to object at sentencing to the PSR’s restitution amount victim identification. As such, the dis ‐ trict court’s restitution order subject plain error review. Walker failed produce any contradicting either the PSR’s restitution amount methodology. Rather, ap ‐ pears that the government’s proposed loss amount used the appropriate calculation by subtracting the sale price after Long Beach Mortgage recovered the property the amount loan. As such, court did not com mit plain error relying entirely on restitution amounts contained PSR which Walker did not object.
Finally, Walker argues court improperly failed quire into identity victims. Specifically, ar gues that improperly relied on govern ment’s identification victim as Long Beach Mortgage when records reflect that at least two proper ties were foreclosed lenders other than Long Beach Mortgage. Walker, however, failed make any objection identification victim trial fails provide any indication Long Beach Mortgage not victim. Indeed, does not argue Long Beach Mortgage did not make loans him. Rather, simply argues Long Beach Mortgage did not initiate foreclosure pro cess. As such, did not err adopting identifi cation victim contained PSR which object. judgment A FFIRMED Huffington Post, http://www.huffingtonpost.com/2009/12/21/at long beach mortgage a_n_399295.html (last visited March
[1] In Silverthorne , Supreme Court explained “a grand jury must be denied access plainly relevant but illegally seized papers.” United States v. Calandra U.S. (citing Silverthorne Lumber Co. U.S. (1920)).
[2] It does surprise us Long Beach Mortgage initiate foreclosure process. Long Beach Mortgage owner, Washington Mutual, collapsed prior referenced foreclosure proceedings. See