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United States v. Betts-Gaston

United States Court of Appeals, Seventh Circuit

June 20, 2017

United States of America, Plaintiff-Appellee,
Avalon Betts-Gaston, Defendant-Appellant.

          Argued February 15, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 CR 502-1 - Charles R. Norgle, Judge.

          Before Bauer, Easterbrook, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Defendant 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 and sentence.

         I. Factual and Procedural Background

         Betts-Gaston 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).

         Avalon 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.

         At 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 property.

         Betts-Gaston 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.

         Ross 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.

         II. Challenges to the Convictions

         Betts-Gaston 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.

         A. Compliance with Brady

         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 ... .").

         In this 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 probation.

         Betts-Gaston 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.[1]

         B. Voir Dire

         Trial 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).

         The 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.

         Betts-Gaston 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").

         Second, 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 specific situation.

         Betts-Gaston 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 deliberations.").

         In 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.

         C. Evidence ...

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