February 15, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 11 CR 502-1 -
Charles R. Norgle, Judge.
Bauer, Easterbrook, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
Avalon Betts-Gaston was convicted at trial on two counts of
wire fraud. In this appeal, she raises numerous challenges to
both her convictions and sentence. We affirm the convictions
Factual and Procedural Background
challenges the sufficiency of the evidence, so we recount the
facts in the light most favorable to the government.
United States v. Morris, 576 F.3d 661, 666 (7th Cir.
2009), citing United States v. Richardson, 208 F.3d
626, 631 (7th Cir. 2000).
Betts-Gaston and co-defendant Dimona Ross together formed a
company that operated a scheme to defraud homeowners and
mortgage lenders. Betts-Gaston and Ross found homeowners
facing foreclosure and convinced them to participate in what
the defendants said was a program to help them keep their
homes. Betts-Gaston had the homeowners sign documents that
deeded their homes to a trust the defendants controlled. Ross
then arranged for straw buyers to obtain mortgages to buy the
homes. Working with Betts-Gaston, she filled out loan
applications that inflated the buyers' incomes and
misrepresented the purpose of the purchases. Once a sale was
completed, the buyer deeded the property back to the
defendants' trust. When the dust on these transactions
settled, the defendants had both the mortgage proceeds and
title to the properties. The homeowners initially still lived
in the homes but no longer had title to them or equity in
them. At least two homeowners were eventually evicted.
trial the government offered evidence of three such
transactions, which we refer to according to the streets
where the homes were located: the Ravengate property, the
Trumbull property, and the Howard property. Ross's mother
was the straw buyer for the Ravengate and Howard properties;
Betts-Gaston's father played that role for the Trumbull
and Ross were indicted for this scheme in 2011. Count I
described the scheme, identified the Trumbull and Howard
transactions as part of the scheme, and charged both
defendants with wire fraud in connection with wiring the
mortgage funds for the Trumbull transaction. Count II charged
the defendants with wire fraud in connection with wiring
mortgage funds for the Howard property.
pled guilty and agreed to cooperate with the government.
Betts-Gaston proceeded to a jury trial at which the
government presented evidence of the Howard, Ravengate, and
Trumbull transactions. She was convicted on both counts. A
fourth transaction, called the Hermosa transaction, was
introduced at sentencing. Betts-Gaston was ultimately
sentenced to a fifty-seven month term in prison.
Challenges to the Convictions
challenges her convictions on five grounds: (A) the
government concealed the terms of its plea agreement with her
co-defendant, in violation of its Brady obligations;
(B) the district court's limited questioning of
prospective jurors violated her right to an impartial jury;
(C) evidence on the materiality of her misrepresentations was
excluded, impairing her right to present a defense; (D)
insufficient evidence supported her conviction on Count II;
and (E) the district judge was hostile to her in front of the
jury, impairing her right to a fair trial.
Compliance with Brady
v. Maryland, 373 U.S. 83 (1963), "requires the
government to disclose evidence materially favorable to the
accused, " including "evidence that tends to
impeach a government witness." United States v.
Salem, 578 F.3d 682, 685 (7th Cir. 2009)
(citations omitted). Such impeachment evidence often includes
plea agreements between cooperating witnesses and the
government. Giglio v. United States, 405 U.S. 150,
155 (1972) ("[E]vidence of any understanding or
agreement as to a future prosecution would be relevant to [a
witness's] credibility ... .").
case, the government had a written plea agreement with Dimona
Ross, who testified against Betts-Gaston. It gave that
agreement to defense counsel, and Ross testified to its terms
at trial. The plea agreement indicated that, pursuant to 18
U.S.C. § 3561, Ross could not be sentenced to a term of
probation. It also left Ross free to argue for any sentence.
At Ross's sentencing hearing, held ten months after
Betts-Gas-ton's trial, her counsel asked for a sentence
of probation. At that time, Ross had been on pretrial release
for about five years, had been compliant with conditions, was
caring for her elderly parents and her daughter, and was
about to take a good job out of the state. In the court's
view, Ross was "well on the path to
rehabilitation." The court sentenced her to two years of
believes the government agreed to secretly change the
probation-eligibility term of the plea agreement, violating
Brady. No evidence supports this theory. Moreover,
the government's claim about Ross's probation
eligibility did not describe a term of their agreement that
could be modified. It was simply a description of the
relevant law, complete with citation. The government might
have misunderstood or misstated the law, but could not have
suppressed it, as required for a Brady violation.
Cf. United States v. Shields, 789 F.3d 733, 747 (7th
Cir. 2015) (no Brady violation in failing to
disclose publicly available information). There was no
Brady error here.
judges have "substantial discretion regarding the manner
in which" they conduct voir dire, the questioning of
prospective jurors. United States v. Harris, 542
F.2d 1283, 1295 (7th Cir. 1976). This appellate court does
not interfere "unless there has been a clear abuse of
that discretion, " but defendants "must be
permitted sufficient inquiry into the background and
attitudes of prospective jurors to enable them to exercise
intelligently their peremptory challenges." Id.
Voir dire must be conducted to provide "a reasonable
assurance that prejudice would be discovered if
present." United States v. Bellinger, 472 F.2d
340, 367 (7th Cir. 1972). That standard will often require
"go[ing] beyond asking the venirepersons only a few ...
'stock questions.'" Art Press, Ltd. v.
Western Printing Machinery Co., 791 F.2d 616, 619 (7th
Cir. 1986), quoting Fietzer v. Ford Motor Co., 622
F.2d 281, 285 (7th Cir. 1980).
district judge questioned the prospective jurors after
soliciting proposed questions from both parties. The court
briefly explained the nature of the case and the burden of
proof, then questioned the jurors individually. The questions
generally explored the jurors' backgrounds: their jobs,
families, hobbies, and experience with the legal system. The
court also asked whether the jurors had experience with
property ownership or as crime victims, whether they knew
anyone in the federal government, and generally whether they
could be fair to the parties.
contends that the inquiries were insufficient for two
reasons. First, she says the court should have asked all
potential jurors about the burden of proof and presumption of
innocence. While that may usually be the better course, we
have held that district judges are not required to ask
potential jurors about the burden of proof and presumption of
innocence. See United States v. Sababu, 891 F.2d
1308, 1324 (7th Cir. 1989) (holding that "the district
court's refusal to question potential jurors during
voir dire on the issues of burden of proof and the
presumption of innocence" did not "deprive[
defendants] of a fair trial").
Betts-Gaston argues the trial judge "permitted no
inquiry designed to elicit ... attitudes toward the general
nature or particular facts of the case." Art
Press, 791 F.2d at 619; see also United States v.
Hastings, 739 F.2d 1269, 1273 (7th Cir. 1984)
("This court will not find that a trial court abused its
discretion in conducting voir dire where there is
'sufficient questioning to produce, in light of the
factual situation involved in the particular trial, some
basis for a reasonably knowledgeable exercise of the right of
challenge.'"), quoting United States v.
Martin, 507 F.2d 428, 432 (7th Cir. 1974). That
criticism overstates the situation. The district court asked
about jurors' experiences as crime victims and property
owners and their attitudes toward federal government
employees-all questions that bore on Betts-Gaston's
asked the court to cover two topics it did not ask about:
jurors' experience with "'Foreclosure
Rescue' businesses" and their attitudes toward
lawyers. There is "no generally accepted formula for
determining the appropriate breadth and depth of the voir
dire, except that the court's discretion is 'subject
to the essential demands of fairness.'"
Dellinger, 472 F.2d at 367, quoting Aldridge v.
United States, 283 U.S. 308, 310 (1931). Refusal to ask
questions may be an error if they concern "matters where
the likelihood of prejudice is so great that not to inquire
would risk failure in assembling an impartial jury."
Dellinger, 472 F.2d at 368 (reversing convictions of
Chicago Seven where district court refused to question about
attitudes toward Vietnam War and anti-war protest movement,
toward "the so-called youth culture-hippies, yippies,
and freaks, " and toward law enforcement); see also
United States v. Robinson, 475 F.2d 376, 381 (D.C.
Cir. 1973) ("[T]here is ... need for a searching voir
dire examination [on] matters concerning which either the
local community or the population at large is commonly known
to harbor strong feelings that... significantly skew
addition to the examples from Dellinger, we have
applied that rule to, for example: attitudes toward media and
advocacy groups "employing the anticipated chief
witnesses, where the testimony stemmed from work done ... on
behalf of those organizations, " United States v.
Lewin, 467 F.2d 1132, 1138 (7th Cir. 1972), and racial
prejudice in the trial of a black defendant, United
States v. Robinson, 466 F.2d 780, 782 (7th Cir. 1972).
Lawyers and foreclosure rescue do not incite comparable
passions. We think the district court "could safely
assume, without inquiry that the veniremen had no serious
prejudice on this subject, or could recognize such prejudices
and lay them aside." Dellinger, 472 F.2d at
368. The district court did not abuse its discretion in
conducting voir dire.