Case Information
*1 Before P OSNER R OVNER , W ILLIAMS , Circuit Judges . W ILLIAMS Circuit Judge
. Randall part conspiracy preyed on novice real estate investors during housing bubble 2005–06, defrauding both borrowers lenders alike. A five day trial revealed his co conspirators do just anything com plete sale make profit, whether making prom ises they no intention keeping or falsifying receipts, incomes information loan forms. Causey, *2 ‐ was the only co conspirator plead guilty, was convicted and sentenced for his role the fraud.
Causey raises five issues—four evidentiary and sen ‐ tencing—on appeal. First, argues the improperly admitted irrelevant and prejudicial photographs taken of the houses around the time of trial rather than at the time of the sale. We reject this argument because photographs gave jurors a sense size, location and style of house, and jurors were repeatedly reminded pictures taken. Second, a fraudulent sale took place outside conspiracy was properly admitted be ‐ cause placed his intent defraud and knowledge fraudulent issue claiming was an inno ‐ cent pawn, and this sale demonstrated his fraudulent knowledge intent. Third, a defense witness’s testimony was properly excluded as undisclosed expert testimony cause witness no personal knowledge transac tions issue was asked instead about industry norms, which only permissible witness qualified as an ex pert. Fourth, erred allow ing an unqualified co conspirator give broad expert testi mony allowing her testify as both fact expert witness without limiting instruction. Since witness was never referred expert front jury, there extensive cross examination her credentials basis for opinion, her opinion significant government’s case, reject arguments. Finally, level sentencing enhancement being “organizer, leader, manager, supervisor conspiracy” properly assessed responsible re cruiting buyers into conspiracy exercised control over them during their involvement, included submit *3 ting fraudulent paperwork during closings, and some buyers were also uncharged criminally responsible parties.
We affirm each these issues.
I. BACKGROUND
Sheila Chandler learned how falsify documents and close fraudulent loans as a mortgage broker in Gary, Indiana. She became familiar Gary real estate market, in cluding a house’s actual value, and, more importantly purposes, what house would appraise after a little cosmetic work. Sensing opportunity, she devised a scheme defraud both lenders and buyers. As part scheme, she approached Gordon Rainey and sug gested start a construction company make minimal changes houses and then charge inflated amounts would be pocketed at closing. Defendant Randall living Rainey’s house time and asked could involved, and Rainey subsequently co founded jointly owned construction company called Netlink. With that, conspiracy off running. By time three were arrested, they executed mortgage scheme twenty five times between July August around Gary area. worked follows: First, group needed
buyers who real estate novices. used charm false promises recruit five seven buyers purchased eighteen twenty five Gary properties listed indictment. With buyer place, would fill out mortgage application, falsifying income, down pay ments any information make buyer viable loan candidate. She then order appraisals, title work, *4 ‐ pre ‐ approval from the lender. The conspirators would use “trainee” appraiser Henry Sterk appraise most the houses greatly inflated price. next step was close on house. Chandler gave false information the lenders on HUD statements, itemize all charges im posed upon borrower seller for transaction. Once amounts on HUD paid, title company told Chandler how much remained loan. Chandler then made up false construction invoices for remainder. After closing, conspirators divvied up money paid for false invoices. received $2,000 cash per house, while Causey received somewhere between $3,000 $5,000.
Causey was directly indirectly responsible for recruit ing five buyers, but highlight experiences purchasers relevant appeal, Beatrice Mengich Toi Lisa Mark. Beatrice Mengich brought into her aunt, Lillian Kimutai, met singles telephone line. After Kimutai bought into sales pitch, but before she realized she had been defrauded, Kimutai recommended Mengich Mengich also invest Gary real estate. It until Mengich, twenty three years old, flown up from North Carolina Northwest Indiana closing she learned for first time arrangements had been buy four houses ra ther than one, she had previously told.
Toi Lisa Mark originally from Gary mutu al friend with named George Hawkins. Hawkins suggested Mark invest Causey. Like with buyers, told Mark she bought houses, would fix them up, Netlink handle all property manage *5 ment issues, and she could rent out houses. Causey said he was looking out her of their mutual friend, and promised her least $7,000 cash back. Mark eventually bought houses in May sight unseen. At closing, Mark pointed with concern paperwork showing she a “major down payment,” she knew she had not, and Causey responded he had taken care of it. Once Mark purchased home, Causey became non responsive.
As scheme with Chandler and Rainey was winding down, began recruiting buyers a different scheme running with of Chandler’s former coworkers. One of those buyers Kristen Dudley bought house November she eighteen years old, sight unseen. When Dudley reached out later, stopped taking her calls.
Ultimately, authorities figured out grand jury returned nine count indictment against Causey, Chandler Rainey, among others. They charged conspiring commit wire fraud violation U.S.C. § eight counts aiding abetting commission of, committing offenses of, wire fraud violation U.S.C. § 1343. All except pled guilty.
At trial, government introduced twenty five group exhibits pictures properties taken between 2012. The jury repeatedly reminded photo graphs represented houses near time trial how they appeared time conspiracy. government called testify role fraud. She also disclosed before trial po *6 tential expert on real estate closings. Chandler testified about the market conditions Gary, one point saying the Gary housing market inflated by 400%. Defense counsel object this estimate, but cross examined ex ‐ tensively about qualifications give such opinion regarding the facts on that opinion based.
The government also called Mark, Mengich Dudley testify about their purchases. Defense counsel objected Dudley’s testimony as improper under Federal Rule Evi ‐ dence 404(b), arguing it propensity evidence. The dis trict allowed the testimony, reasoning it went intent, knowledge, absence mistake pro bative value substantially outweighed by preju dicial value.
Once government rested, defense counsel called Douglas Kvachkoff, owner Indiana Title Network Company. He began testify as contents a closing folder him, but Kvachkoff admitted “did personally obtain funding number” on folder defense counsel began asking how some industry would get a funding number, barred responses as improper expert testimony. Defense counsel proffered Kvachkoff testified funding number issued lender once has reviewed settlement statement ( e.g. HUD necessary precondition disbursement loan. jury returned verdict finding guilty all
counts. At sentencing, judge adopted Presentence In vestigative Report prepared Probation office, ap plied level enhancement under Sentenc ing Guidelines (“U.S.S.G.”) § 3B1.1(c) role *7 7 13 ‐ 1321 “organizer, leader, manager, or supervisor conspira cy.” Causey objected, arguing only minor par ticipant instead deserved two level reduction. dis trict found level enhancement proper because Causey major player crime sen tenced 108 months’ imprisonment be fol lowed by three years supervised release.
This appeal follows.
II. ANALYSIS
A. Evidentiary Rulings challenges four evidentiary rulings district court. We review decision allow exclude evidence an abuse discretion. United States v. Garcia Avila , 737 F.3d 484, (7th Cir. 2013). “The district court’s evidentiary rulings are afforded special deference will reversed ‘only where no reasonable person could take view adopted trial court.’” Id. (quoting United States v. Reese , F.3d 1007, (7th Cir. 2012)). “Even abuse discretion occurs, however, reversal only follows admission affected defendant’s substan tial rights.” Id. (quoting United States v. Richard (7th Cir. 2013)). We ask “whether average juror find prosecution’s case significantly less persuasive without improper evidence.” Id. (quoting Miller 2012)).
1. No Abuse Discretion Admitting Photographs improperly admit
ted irrelevant overly prejudicial photographs homes they taken between three six years *8 13 1321 after the conspiracy ended. “To be relevant, evidence need conclusively decide the ultimate issue in the case, nor make the proposition appear more probable, but must in some degree advance the inquiry.” Thompson v. City Chi. (7th Cir. 2006) (internal citations omitted); see Fed. R. Evid. 401. While there is question whether defense counsel preserved proper objections all the exhib ‐ its—and therefore whether the plain error abuse discre ‐ tion test applies—it does affect our analysis because these photographs were relevant under either test. See Cheek (applying plain error test when no timely objection). Although pho ‐ tographs were taken after conspiracy over, they were relevant because they presented jury lay out, size, location composition houses, also aided various witnesses explaining their experiences. That is enough advance inquiry. Rule argument is stronger, but fails
any potential prejudice mitigated parties’ actions. argues photographs were prejudicial cause they showed houses various states disrepair therefore given jury distorted percep tion houses’ worth, claims important factor government estimates flated. Federal Rule Evidence permits ex clude otherwise relevant “if its probative value substantially outweighed danger … unfair prejudice, confusing issues, [or] misleading jury … .” Fed. R. Evid. 403. Here, there little, any, prejudice, cer tainly enough substantially outweigh pictures’ probative value. government said its opening state ment, photographer reiterated during direct *9 9 No. cross examination, the photographs were taken around the time of the trial; the government introduced chart, without objection, detailing photos were taken and when; various witnesses testified to the differences be tween houses as depicted the photographs the houses purchased. Any prejudice danger mis leading jury mitigated by these numerous reminders photographs depicted houses around time trial not near time sale.
We understand from statements government at oral argument least one mitigation effort, chart, necessary jurors allowed to take notes during trial. While decision whether allow jurors to take notes remains discretion trial court, see SEC v. Koenig , F.3d 736, (7th Cir. 2009), have consist ently encouraged practice allowing jurors take notes have acknowledged much incorporating practice into Seventh Circuit Pattern Criminal Jury In structions. See 7th Cir. Pattern Criminal Jury Instruction 3.18 (2012 ed); see also, e.g., v. McGee 633–34 (7th Cir. 2010) (stating taking notes way avoid jurors’ attention memories from waning); Moore Knight (reversing denial writ habeas corpus noting jurors’ faulty memories could have influenced, part, their ina
2. No Abuse of Discretion Admitting Dudley Transaction
Next, argues that district erred ad mitting evidence of Dudley transaction, a house sale which occurred after conspiracy with Chandler Rainey had ended. that this transaction used to show he a propensity to commit fraud therefore should have excluded under Federal Rule of Evidence 404(b).
While evidence of another “bad act” is “not admissible to prove a person’s character order show that a particu lar occasion person acted accordance charac ter,” is admissible prove motive, opportunity, prepara tion, plan, knowledge, identity, absence mistake, lack accident, intent. Fed. R. Evid. 404. We previously used, applied, a four part test states that Rule 404(b) evidence is admissible if: (1) evi dence is directed towards establishing matter other than defendant’s propensity commit crimes charged; (2) other act is similar close enough time relevant; (3) evidence sufficient support jury finding defendant committed act; (4) probative value evidence substantially outweighed danger unfair prejudice. See, e.g., Torres Chavez ____ ___, U.S. App. LEXIS *6 2013). defense trial Rainey masterminds conspiracy pawn know part fraudulent scheme. government sought introduce Dudley transaction show spearheaded anoth *11 11 13 1321 er fraudulent scheme without Chandler and Rainey and knew what doing he entered into mort ‐ gage operation with Chandler Rainey. While line be tween propensity intent/knowledge can sometimes blurry, Dudley transaction directly relevant to whether Causey intended to defraud buyers in Chandler Rainey whether Causey knew scheme’s fraudulent nature. See, e.g., Jannotta v. Subway Sandwich Shops, Inc. , 125 F.3d 503, 517 (7th Cir. 1997) (affirm ing decision to admit evidence fraudulent state ments outside alleged fraud).
Moreover, Dudley transaction sufficiently similar those in Rainey conspiracy demon strate Causey’s knowledge fraudulent intent. While highlights ways which Dudley transaction different—no falsified financial forms or promises find tenants give cash back—“[w]hen is presented show intent, ‘[s]imilarity relevant only insofar acts are sufficiently alike support inference criminal tent.’” United States v. Howard , 692 F.3d 697, 705 (7th Cir. 2012) (quoting United States v. Reese , F.3d 1007, (7th Cir. 2012)). Both schemes involved recruitment novice female buyers, false promises, purchases without see ing houses, cutting off communication buyers shortly after closings. Additionally, Dud ley recruitment began six months after recruited Mark, previously found close enough time permit introduction 404(b) evidence. See, e.g., United States v. Chapman , F.3d (7th Cir. 2012) (finding years close enough time admit Rule 404(b) evidence); Kreiser (seven years); Howard 705–06 (over *12 12 13 1321 year). Because characteristics of schemes suffi ciently alike, they support an inference criminal intent.
Next, Dudley seller both testified to Causey’s role fraudulent transaction, sufficient evi dence show he committed act. Howard , 692 F.3d 706 (finding witness testimony sufficient).
Finally, an act demonstrating intent knowledge was especially probative given govern ment needed prove both prevail its causes action. United States v. Anderson , 580 F.3d 639, 646 (7th Cir. 2009) (noting U.S.C. § 1343 wire fraud requires proof de fendant “knowingly participated fraudulent specific intent deceive cheat scheme’s vic tims” conspiracy requires proof defendant “knew essential nature scope charged conspiracy he intended participate it”). himself Dudley transaction even more probative when put his intent issue claiming was innocent pawn Rainey’s game. United States v. Miller , F.3d 688, (7th Cir. (“[E]vidence tending prove intent becomes more probative [] defense actually works deny intent”); see also United States v. Stokes (7th Cir. 2013). While probative value high, there minimal prejudice testimony brief part trial, describe any details already discussed, “alleviated any unfair prejudice giving limiting instruction.” Moore 2008). admission Dudley transaction abuse discretion.
3. Kvachkoff’s Expert Testimony Was Properly Barred
Causey argues that district court erred barring Kvachkoff’s testimony as expert opinion testimony not disclosed pretrial Federal Rule Criminal Procedure notice. Testimony is based on “scientific, technical, specialized knowledge” expert testimo ny, Fed. R. Evid. written summary must be disclosed pretrial criminal case when certain conditions are met. Fed. R. Crim. P. 16(b) (defendant must provide ex pert summaries when government first discloses its sum maries requests defendant’s). admits he did not disclose Kvachkoff’s testimony before trial, but he did need expert testimony. correct Kvachkoff began as occurrence witness testified contents folder sitting on his lap. But once Kvachoff said “no recollection this closing” referred on folder defense counsel began asking about industry practice procuring closing numbers, testimony crossed into expert testimony. See Fed. R. Evid. 702; United States v. Pansier 737– (finding testimony characteristics forged banking forms expert testimony). These ques tions required testimony based “specialized knowledge” industry therefore necessitated expert opinion. Because admittedly file required Rule disclosure, within its discretion ex clude expert testimony. See Fed. R. Crim. P. 16(d)(2)(C) (noting party fails comply Rule 16’s disclo sure requirements, may “prohibit party from introducing undisclosed evidence”); Hof *14 14 13 1321 feckner , F.3d 185 (3d Cir. 2008) (“Courts of appeals have upheld exclusion of experts [under Fed. R. Crim. P. 16] defendants fail serve timely notice their intent call them as witnesses.”).
4. Admission Chandler’s Expert Testimony Was Harmless Error Next erred in allowing testify as expert. He specifically challenges her statement Gary housing market inflated 400%, contends erred letting tes tify dual expert/lay testimony capacity without limit ing instruction.
The parties dispute proper standard review. Cau sey claims we should review for abuse discretion because counsel objected foundation Chandler’s opinions, whereas government claims should review for plain error because no objection raised Chandler’s qual ifications expert or, specifically, 400% question answer. We need make this determination argument ultimately fails under either standard since any error might have been admitting this testimony harmless. See Cheek , F.3d (analyzing for harm less error under plain error review); York (analyzing harmless error under abuse discretion review). test harmless er ror “whether, mind average juror, prose cution’s case been ‘significantly less persuasive’ improper excluded.” York (internal quotations omitted). *15 that Chandler was qualified to give expert testimony the 400% comment was beyond the scope the government’s pretrial Rule disclosure, which said Chandler would testify the process real estate closings. Even if it was error admit Chandler’s testimo ny even such testimony exceeded the scope the government’s disclosure, the error was harmless. Chandler’s expert testimony was little value the government’s case. The government had prove co conspirators de frauded purchasers with false promises defrauded lend ers with false information. Chandler’s occurrence testimony went these facts. However, extent hous ing market Gary was inflated was beside point; 400% estimate was only relevant explain how profitable was higher appraisal, higher loan, more wiggle room there submit false invoices. The government even mention 400% figure its closing.
Moreover, government’s case so strong without Chandler’s expert testimony cannot find prosecution’s case been “significantly less per suasive” had it been excluded. Id . government put testimony from Causey’s co conspirators who described involvement scheme, along witnesses purchasers had defrauded, presented physical showed extent nature conspiracy.
Additionally, any potential harm error miti gated defense counsel’s thorough cross examination Chandler regarding qualifications. Defense counsel pointed out appraiser, done no *16 time span analysis, never compared the Gary mar ‐ ket to areas. This reduced the chance that the jury would attach undue weight to Chandler’s testimony. Admit ting Chandler’s expert testimony, specifically 400% comment, therefore harmless error.
Finally, argument that district court erred in allowing Chandler testify in dual capacity fails. The dis trict did not err its handling such testimony cause even an expert, it is unlikely that any juror have been confused such testimony since took “precautions ensure jury [understood] its function evaluating this evidence.” Id. at 425. gov ernment “did not explicitly present [Chandler] jury as an expert . Consequently, there little risk jury might have confused [Chandler’s] ‘dual roles’ as both expert lay witness, [her] status expert might overawe jury, jury might mistak enly believed [her] expert opinions were based facts defendant presented trial.” Cheek at (emphasis original). Other precautionary measures included government’s foundational question—“[w]hat information you need make assessment”—and defense counsel’s thorough cross examination. York (finding “government’s establishing proper foun dation witness’s expert opinions court’s allowing defense rigorously cross examine expert” constituted precautions). While limiting instruction way ensure jury understands how properly evaluate presented, only way. Here, such instruction necessary there ade quate precautionary measures already place. *17 17 13 1321
Even if we assume admitting Chandler’s expert testimo ‐ ny admitted error, need not address ar ‐ gument he prejudiced cumulative trial error be ‐ cause “we find [defendant] did not identify more than one error, [and so] cumulative error doctrine does apply.” United States v. Moore , F.3d 812, 830 (7th Cir. 2011). We affirm district court’s evidentiary rulings.
B. No Error Applying Two Level Sentencing En ‐ hancement
Lastly, qualify for two level sentencing enhancement under U.S.S.G. § 3B1.1(c) cause “organizer, leader, manager, or supervi sor” of conspiracy. We disagree.
We review court’s application Sentenc ing Guidelines de novo its findings facts for clear er ror. United States v. Harmon , F.3d 877, (7th Cir. 2013). “Factual findings are overturned ‘only our review all leaves us definite firm conviction mistake has been made.’” Id. (quoting United States v. Bennett (7th Cir. 2013)). We may affirm application U.S.S.G. § 3B1.1 any grounds are sup ported record. Fox 2008).
Section 3B1.1(c) Sentencing Guidelines allows level enhancement “[i]f defendant organizer, leader, manager, or supervisor any criminal activity.” U.S.S.G. § 3B1.1(c). “defendant must or ganizer, leader, manager, supervisor or more participants.” U.S.S.G. § 3B1.1 cmt. n.2. A “participant” “person criminally responsible commission *18 the offense, but need not convicted.” Id. cmt. n.1.
Causey the enhancement was improper three reasons: (1) he only recruited three of the seven buyers; (2) district improperly considered whether he “essential” to offense; (3) enhancement requires that defendant exercise control over least one other par ticipant in scheme, Causey did not. First, did err in finding that factors that made Causey “organizer, leader, manager, or supervisor” that he recruited Mark Mengich, addition to three buyers he admitting recruiting. U.S.S.G. § 3B1.1 cmt. n. (noting “recruitment accomplices” “degree participation planning or organizing offense” are fac tors consider determining someone leader organizer); Robertson (finding recruitment charged uncharged buyers fraudulent real estate scheme supported applica tion enhancement). While Hawkins re introduced Mark Causey, Mark clear that Causey brought her into scheme, told what business proposal was, what role she would play, how she would receive kickback, how Netlink rehabilitate house. It clear error find recruited Mark into scheme. Furthermore, while Lillian introduced Mengich scheme, there are facts weigh heavily against argument he recruit Mengich. He troduced Lillian therefore indirectly caused Mengich become part conspiracy. More tell ingly, believed owed money result Mengich purchase, thereby taking credit sale. This demonstrates himself believed brought *19 19 1321 Mengich scheme. It was not plain error find that Causey recruited both Mark Mengich, therefore find him responsible for five seven buyers. next that district court’s finding that was “essential” scheme contravenes our
statement in United States v. Leiskunas that “playing neces ‐ sary role does not definitively prevent that same role from being minor.” F.3d (7th Cir. 2011). However, district court Leiskunas did not consider defendant’s role as whole. Id. Here, did consid ‐ er context gave numerous reasons outside Cau ‐ sey’s “essential” nature that he qualified for level enhancement, including Causey’s position co owner Netlink, his recruitment buyers, broken promises buyers he recruited. Because just consideration among many, did not err noting an “essential” player. final argument could “or
ganizer, leader, manager, or supervisor” because “Chandler Rainey were true organizers leaders” Cau sey exercise control over any criminally re sponsible party. This argument fails repeat edly held defendant can exercise control over “crim inally responsible” party enhancement purposes even individual never charged, convicted indicted “criminally responsible” act. See, e.g., Robertson (defendants exerted control over “participants who charged” fraudulent real estate scheme); Knox (finding de fendant exercised control over individual “nev er criminally charged, [but] admitted she knowingly *20 participated scheme”). Mark was such a “criminally responsible” party. She admitted fraudulent activities when she signed a HUD statement showing she had a “major down payment” on house, she knew was true. That she also victim does not prevent her from being “criminally responsible” party sentencing purposes. Vivit (finding enhancement proper because some victims fraudulent scheme also uncharged criminally respon sible parties submitted fraudulent paperwork). It also clear exercised control over her. He only brought Mark into convinced her buy houses, but she listened told worry fraudulent information forms she sign ing had taken care it. Because therefore control over Mark she criminally responsible party, enhancement proper.
III. CONCLUSION
For foregoing reasons, AFFIRM judgment court. bility take notes trial). A judge try bench trial without ability take notes, even though trial transcript can generated post trial. It difficult under stand why jurors should same opportunity take notes.