United States v. Brian McGowan ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1384
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
B RIAN D. M C G OWAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 350—John F. Grady, Judge.
A RGUED F EBRUARY 24, 2009—D ECIDED D ECEMBER 22, 2009
Before R OVNER, W OOD and SYKES, Circuit Judges.
R OVNER, Circuit Judge. A jury convicted Brian D.
McGowan of eighteen counts of wire fraud, in violation
of 18 U.S.C. § 1343, and one count of investment
advisor fraud, in violation of 15 U.S.C. §§ 80b-6(2) and 80b-
17. He was sentenced to a term of sixty-six months’
imprisonment and was ordered to pay restitution in
the amount of $182,470.12. On appeal, he disputes the
district court’s decision to allow the main witness
2 No. 08-1384
against him to testify by videotaped deposition. He
also challenges the charges against him on statute-of-
limitations grounds. We affirm.
I.
In 1986, when working as a warehouse manager in a
discount department store, Camille LaMie was hit by a
forklift. Although her injuries prevented her from re-
turning to that job, she attempted to work at another
store for a brief time as a customer service representa-
tive. Because her injuries made walking difficult, she left
that job as well. Ultimately, she underwent spinal surgery
and bone grafts, spending a year in a body cast. She was
unable to collect workers’ compensation because the
discount store had declared bankruptcy. From the time
of her injury until her father’s death in 1993, LaMie lived
on food stamps, Social Security Supplemental Income
and Medicaid. After her father died, she inherited ap-
proximately $266,000 and a house in Chicago. All of
her public assistance ended with her receipt of the inheri-
tance and LaMie relied entirely on that money for her
support.
By 1997, LaMie was fifty-four years old, unemployed,
medically uninsured, and suffering from a variety of
chro n ic m ed ica l p ro blem s includ ing diabetes,
hypothyroidism, chronic obstructive pulmonary disease,
cirrhosis of the liver caused by an autoimmune disorder,
clinical depression, diabetic neuropathy and hepatic
failure. Her luck was about to get worse. Because she
lacked health insurance, she became increasingly con-
No. 08-1384 3
cerned about her declining health and her ability to pay
her ongoing medical expenses. She had been investing
her money conservatively in certificates of deposit, but
now sought to increase her rate of return and obtain a
steady monthly income while at the same time keeping
her principal safe. In September 1997, a friend intro-
duced LaMie to Brian McGowan, a financial advisor.
LaMie told McGowan that she needed no-risk invest-
ments and that she also needed health insurance.
McGowan told her he would keep her principal safe and
obtain health insurance for her. He told LaMie that his
clients included Walter Payton, Michael Jordan and
Michael Jordan’s mother. In fact, he had never
represented any of these people.
LaMie researched McGowan’s background to the best
of her ability and decided to invest the bulk of her inheri-
tance with him. She paid him an up-front “consulting fee”
of $2,500 and signed a customer agreement. Between
September and December of 1997, LaMie invested
$260,000 with McGowan. Needless to say, McGowan did
not keep LaMie’s principal safe. He told her he was
placing $100,000 in Cypress Bioscience, a drug company
that he characterized as “safe.” He invested $8,200 in a
commodities account that he intended to trade daily,
which he told LaMie eliminated any risk. He banked
$30,000 of her money in a “no risk” real estate deal,
and told her he was placing $60,000 in Chicago Capital
Holdings. He claimed to invest another $60,000 in an
unspecified manner. McGowan did invest some of
LaMie’s money in real estate: he bought a house for
himself in New Mexico. He invested $90,000 in Cypress
4 No. 08-1384
Bioscience and placed $8200 in a commodities account,
but did not protect LaMie’s principal or make any other
investments. Nor did he obtain health insurance for her
as he promised. When LaMie tried to obtain financial
statements from McGowan to check on the status of
her investments, he promised to send them but never
did. The information he did provide was misleading
and uninformative.
LaMie became increasingly suspicious as McGowan
continued to evade her questions and requests for
reports on the status of her investments. After con-
sulting several friends regarding her problems with
McGowan, she contacted the FBI in April 1998. The
FBI directed her to call McGowan and record her con-
versations with him. FBI agents scripted questions for
LaMie to ask and supplied her with blank tapes and
recording equipment. Between April and July of 1998,
LaMie recorded nineteen telephone calls with McGowan.
During those calls, McGowan lied repeatedly about the
status of LaMie’s investments. He told her that her
money had been invested in a number of ventures in-
cluding Cypress Bioscience, Maximum Video, Navarre,
Chicago Capital Holdings, and a Ramada Inn. He
also told her a small amount of her money was in a com-
modities account, and in perhaps his most creative lie,
he told her some of her money was invested in a new
production of the musical “Annie.” Although McGowan
had placed some of LaMie’s money in Cypress Bioscience,
the investment was not in the amount he promised.
Everything else, except for the commodities account, was
a pure fabrication, as he admitted at trial. McGowan
No. 08-1384 5
also lied when he told LaMie that he was keeping her
principal safe and that her investments were generating
interest income. He lied when she asked him to liquidate
her investments and return her money, and he lied
about obtaining health insurance for her.
All of the testimony from LaMie came into the trial
through Federal Rule of Criminal Procedure 15(a) video-
taped depositions that were recorded because of
LaMie’s precarious health. LaMie resided in South
Carolina at the time of the trial, which was held in Chi-
cago. LaMie’s doctors believed that both travel and testi-
fying at trial presented great risks to her health. The
district court found that she was unavailable for trial
because of her health problems, and her videotaped
deposition testimony was admitted over McGowan’s
objections. A jury found McGowan guilty of eighteen
counts of wire fraud based on the misrepresentations
he made during phone calls spanning from April 13,
1998 to June 29, 1998. The jury also found McGowan guilty
of one count of investment advisor fraud. McGowan
appeals.
II.
On appeal, McGowan contends that the admission of
LaMie’s videotaped depositions violated Federal Rule
of Evidence 804(a)(4) and his constitutional rights under
the Confrontation Clause. He also argues that the
court erred when it denied his motion to dismiss the
indictment on statute-of-limitations grounds. He main-
tains that his crimes were complete more than five years
6 No. 08-1384
prior to the filing of the indictment, and that 18 U.S.C.
§3282 requires that prosecutions for wire fraud be
brought within five years of the offense.
A.
The grand jury returned the indictment against
McGowan on April 3, 2003. In March 2004, because LaMie
suffered from poor health, the government moved to
preserve her testimony pursuant to Federal Rule of Crimi-
nal Procedure 15(a). That rule provides:
A party may move that a prospective witness be
deposed in order to preserve testimony for trial. The
court may grant the motion because of exceptional
circumstances and in the interest of justice. If the court
orders the deposition to be taken, it may also require
the deponent to produce at the deposition any desig-
nated material that is not privileged, including any
book, paper, document, record, recording, or data.
Fed. R. Crim. P. 15(a). In support of the motion, the gov-
ernment submitted a letter from LaMie’s physician, Dr.
George Sandoz, describing her medical conditions. Dr.
Sandoz, a neurologist and opthamologist, had been
treating LaMie since 2001. According to Dr. Sandoz,
LaMie was “almost bedridden,” required oxygen twenty-
four hours a day, and suffered from severe diabetes,
diabetic neuropathy and biliary cirrhosis, among other
things. LaMie took long-acting narcotics to control
her pain, according to Dr. Sandoz. He opined that it
would not be safe for LaMie to travel because of her
No. 08-1384 7
medical conditions. After a hearing, the court granted
the government’s motion.
LaMie was deposed on May 6, 7, 26, and 27, 2004, in
South Carolina. McGowan and his lawyer were present
at the videotaped depositions and McGowan’s lawyer
cross-examined LaMie extensively. At a June 9, 2004
status call, the parties discussed LaMie’s availability
for trial. McGowan’s lawyer intended to challenge any
suggestion that LaMie was unavailable for trial. During
the depositions, he learned that LaMie owned a car and
had recently renewed her driver’s license. Based on this
and other information from the depositions, he believed
that prior representations about LaMie’s health were
exaggerated. He told the court he wished to have
another physician review Dr. Sandoz’s assessment
of LaMie. The government maintained that LaMie
could not travel to Chicago to testify because of her
extensive health-related limitations. The government
also clarified that LaMie had renewed her driver’s
license by mail and had driven the car only once in the
past year, and only a very short distance. The court or-
dered briefing on the issue.
Along with its brief, the government submitted two
affidavits from LaMie’s physicians, one from Dr. Sandoz
and one from Dr. Charles Busse. Dr. Sandoz again
asserted that several chronic health conditions made it
medically unsafe for LaMie to travel or to testify at a
trial. Dr. Sandoz described LaMie’s severe diabetes and
opined that stress and changes in schedule could cause
serious problems with her insulin treatment, and that she
8 No. 08-1384
could lose consciousness or even lapse into a coma as a
result. Her diabetic neuropathy caused her constant
pain that could be exacerbated by stress or physical
activity. A disease called diffuse lipomatosis affected
her lungs and required her to use oxygen all day every
day, a condition that could also be worsened by stress
or by the physical exertion required in travel. LaMie
also had chronic liver problems, according to Dr. Sandoz,
that could progress to the point of a life-threatening
illness if she experienced increased emotional or physical
stress. Dr. Sandoz stressed that LaMie’s conditions were
chronic, and that there was no reasonable likelihood that
her condition would improve to a degree that would
render travel safe.
Dr. Busse, a general practitioner who treated LaMie and
had examined her two months prior to signing his affida-
vit, also characterized LaMie’s conditions as chronic.
According to Dr. Busse, LaMie suffered from diabetes,
hypothyroidism, chronic obstructive pulmonary disease,
cirrhosis of the liver and clinical depression. He stated
that LaMie had also been diagnosed as suffering from
multiple sclerosis but conceded that he had not treated
her for that condition and could not assess whether
that additional condition would affect her ability to
travel. Given the conditions for which he did treat LaMie,
Dr. Busse believed she could travel to Chicago with
appropriate accommodations. He declined to express
an opinion on whether those arrangements were prac-
ticable. However, he also asserted that courtroom testi-
mony would likely aggravate her chronic medical condi-
tions. The government also submitted portions of LaMie’s
No. 08-1384 9
deposition testimony describing her multiple health
issues including allergies, asthma, lung failure, heart
failure, cirrhosis of the liver, multiple sclerosis, a blocked
heart valve, diabetes and other conditions.
In response to the government’s submission, McGowan
conceded that LaMie was “unavailable” as that term is
used in Federal Rule of Evidence 804(b)(1). Federal Rule
of Evidence 804(a) states that a person who “is unable to
be present or to testify at the hearing because of death or
then existing physical or mental illness or infirmity” is
unavailable as a witness. Rule 804(b)(1) provides that
certain out-of-court statements are not excluded by the
hearsay rule if the declarant is “unavailable as a witness.”
As applicable here, Rule 804(b) states that “[t]estimony
given as a witness at another hearing of the same or a
different proceeding, or in a deposition taken in compli-
ance with law in the course of the same or another pro-
ceeding, if the party against whom the testimony
is now offered, or, in a civil action or proceeding, a prede-
cessor in interest, had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect
examination” is not excluded by the hearsay rule if the
declarant is unavailable as a witness. But having
conceded LaMie’s unavailability, McGowan argued that
the use of LaMie’s deposition at his trial would violate
his Sixth Amendment right to confront a witness against
him because he had not had an opportunity to question
LaMie regarding additional documents produced by the
government. McGowan also complained that he was still
waiting for the government to produce further documents
from the FBI documenting the agency’s directions to LaMie
10 No. 08-1384
in carrying out the recorded phone calls. McGowan
acknowledged that the confrontation problems could be
cured by further depositions. On August 5, 2004, the
court granted the government’s motion to admit LaMie’s
deposition at trial and denied McGowan’s motion to
take a further deposition of LaMie.
In December 2004, McGowan renewed his objection to
the court’s unavailability ruling. LaMie had taken a four-
hour interstate car trip with friends, and McGowan
argued again that LaMie’s health problems had been
exaggerated. The court held an evidentiary hearing where
one of the friends who accompanied LaMie on the trip
testified. The court found that testimony consistent
with the declarations of Drs. Sandoz and Busse. The
court then allowed McGowan to depose Drs. Sandoz and
Busse, but did not grant McGowan’s request for an inde-
pendent medical examination of LaMie. Dr. Sandoz
testified that LaMie’s health had deteriorated in the last
year, that she was not capable of traveling by plane to
Chicago, and that minimal changes in her routine could
have “devastating effects” on her condition. On June 7,
2005, the court again found LaMie unavailable for trial,
but invited McGowan to move for an additional deposi-
tion of LaMie.
After the government produced additional records, the
court allowed a December 5, 2005 deposition of LaMie.
On October 16, 2006, with trial approaching, McGowan
moved for a current determination of LaMie’s avail-
ability for trial, and renewed a previously filed
motion to suppress LaMie’s deposition testimony. On
No. 08-1384 11
November 22, 2006, the court ordered a current report on
LaMie’s health, noting that in order to use LaMie’s deposi-
tion in lieu of her personal appearance, the court must
determine that the use of the deposition was still
medically necessary. In response to McGowan’s motion
to suppress, the court allowed yet another deposition of
LaMie. The deposition took place on December 18, 2006,
and on January 3, 2007, the government submitted a
report on LaMie’s current health status. That report
included a December 11, 2006 letter from Dr. Sandoz
opining that LaMie’s condition had only deteriorated
since his last report and that any trip would be
detrimental to her health.
On January 8, 2007, the first day of trial, the parties again
discussed LaMie’s unavailability. Noting that Dr. Sandoz
had originally characterized most of LaMie’s medical
conditions as chronic with no reasonable likelihood that
they would improve, the court found that the most recent
letter from Dr. Sandoz indicated that LaMie had not
improved since the July 2004 report. The court con-
cluded again that LaMie was unavailable for trial:
It is clear from Dr. Sandoz’ recent letter that he
regards Ms. LaMie as not having improved at all
from the time of his July 2004 report. His opinion is
the same. There is no surprise about it. . . . If I was
right in 2005, I’m still right. I’m satisfied with that.
And I say that knowing that there will be surgical
attention paid to my ruling on appeal should an
appeal be necessary. But I see no alternative. I think
that the alternative would be cruel to this woman
12 No. 08-1384
to require her to come here in light of this danger to
her health. And I’m not talking about discomfort,
I’m not talking about inconvenience; I’m talking
about the risk of serious damage to her health that
is clearly reflected in this doctor’s analysis.
Tr. at 19, January 8, 2007. The court therefore allowed the
government to use LaMie’s videotaped deposition at trial.
McGowan objected to the use of the depositions through-
out the trial, contesting the finding of unavailability and
also arguing that the use of the videotaped depositions
violated his Sixth Amendment confrontation rights. The
court rejected those claims each time. On one occasion,
the court noted that “the jury is just as able to
evaluate [LaMie’s] demeanor from this videotape as
they would be if she were present live in the courtroom
giving this same testimony.” Tr. at 810. See also Tr. at 811
(where the court remarked, “I don’t think the
jury would have any better view of her behavior while
testifying if she were doing this same thing here in open
court that she’s doing on the videotape.”). McGowan’s
attorney requested a mistrial later in the proceedings
when he believed his client was prejudiced by technical
difficulties with the videotapes. The court responded to
his objections thoroughly and thoughtfully:
This is a very attentive jury. They are taking notes,
they’re reading these transcripts along with the tapes,
they’re paying close attention to the videotape. I’ve
never seen a jury that was more attentive. . . . There
isn’t a single juror here, and I have been looking at
all of them, who is anything other than completely
No. 08-1384 13
absorbed in what is being seen and heard in this
courtroom. They are taking these glitches with the
same good humor the rest of us are, and they’re
intelligent enough to realize that there is a great
difference between the technical difficulties
attending the playing of the video and the substance
and the merits of the testimony that’s being portrayed
on the video. . . . I am pleased and in fact a little bit
surprised at how good the video is in terms of giving
one a real feel for Ms. LaMie. It’s almost—not quite,
I agree—but it’s almost like having her here in the
courtroom. I mean, she’s just as life-like as she can
be. . . . [T]he jury is getting substantially the same
look and feel for her as they would if she were here
in person testifying in the courtroom.
Tr. at 968-69. The court remarked that the technical diffi-
culties were minimal albeit annoying, but did not under-
mine the defense’s cross-examination of LaMie. The
court therefore denied the motion for a mistrial.
On a third objection during trial, the court found again
that the videotaped depositions provided an adequate
substitute for LaMie’s live testimony:
I’ve watched very carefully, and I’ve listened very
carefully, and I’ve come to certain conclusions, and I’ve
given you some of them. I think that her presence
here in person would have been essentially no
different than having her present virtually life-size on
that tape recorder. I don’t know what would have
been shown that wasn’t shown on the tape. You can
see every facial expression, you can see her eyes[.] . . .
14 No. 08-1384
What more would have been gained by having
her hobble in here and get up on the witness stand
and do the same thing? I frankly don’t see anything
that would have been gained. The video deposition
was as good as her physical presence in the court-
room, in my opinion[.]
Tr. at 1590. The court concluded that “the defendant was
not prejudiced by use of the deposition.” Tr. at 1590.
On appeal, McGowan argues that the district court
violated Federal Rule of Evidence 804(a)(4) and the Con-
frontation Clause in declaring LaMie “unavailable” for
trial, admitting her deposition testimony into evidence,
denying his requests for an independent medical exam-
ination of LaMie, and denying a request for an
evidentiary hearing on the question of LaMie’s unavail-
ability at the time of trial. We review a district court’s
decision to admit deposition testimony based on unavail-
ability for abuse of discretion. United States v. Donaldson,
978 F.2d 381, 392 (7th Cir. 1992). Interpretation of the
Confrontation Clause is a legal question that we review de
novo. United States v. Van Sach, 458 F.3d 694, 701 (7th Cir.
2006); United States v. Smith, 454 F.3d 707, 714 (7th Cir.
2006). When testimonial evidence is at issue, the Confron-
tation Clause of the Sixth Amendment requires that the
government demonstrate that the witness is unavailable
for trial and that the defendant had a prior opportunity
for cross-examination. Crawford v. Washington, 541 U.S. 36,
68 (2004).
We begin with the timeliness and soundness of the
district court’s determination that LaMie was unavailable
No. 08-1384 15
to testify due to “then existing physical or mental illness
or infirmity.” Fed. Evid. 804(a)(4). The government
bears the burden of demonstrating that its witness is
unavailable to testify at trial. Donaldson, 978 F.2d at 392;
Burns v. Clusen, 798 F.2d 931, 936-37 (7th Cir. 1986).
McGowan first complains that the district court relied
on a finding of unavailability made in 2005 to hold that
LaMie was unavailable for trial on January 8, 2007. On
the morning that the trial was scheduled to begin,
McGowan requested an evidentiary hearing based on
what he characterized as new evidence regarding LaMie’s
medical condition. Citing observations of LaMie at her
December 18, 2006 deposition, the much earlier letter from
Dr. Busse, and the out-of-state car trip that LaMie took in
2004, McGowan claimed that LaMie’s condition had
improved to such an extent that she was available for
trial. According to McGowan’s counsel, LaMie was able
to walk into her attorney’s office for the December 18
deposition and was even able to scale nine steps to do
so. Additionally, counsel remarked that LaMie no longer
required oxygen and was in fact smoking during breaks
in the deposition. The government confirmed that
LaMie smoked during breaks, but argued that LaMie
entered the building with great difficulty and with assis-
tance. Relying on the Burns case, McGowan argued that
a new evidentiary hearing was required to demonstrate
that LaMie remained unavailable to testify. The court, as
we noted above, had already ordered the government
to procure another report from Dr. Sandoz regarding
LaMie’s current condition. Dr. Sandoz’s resultant letter
was signed on December 11, 2006, approximately four
16 No. 08-1384
weeks prior to the beginning of the trial and one week
prior to the deposition. Dr. Sandoz had most recently
examined LaMie on October 31, 2006, approximately two
months prior to the start of the trial. As we noted above,
Dr. Sandoz reaffirmed his earlier diagnoses of LaMie’s
multiple chronic conditions, and opined that she was
unable to take any kind of trip, and had only deteriorated
since the time of his 2005 assessment of her to the court.
He remarked that her mobility was so impaired that it
was now almost impossible for her to visit her local
doctors every few months for the treatment of her condi-
tions.
The court did not abuse its discretion in determining
that LaMie was unavailable to testify at the January 2007
trial. As the district court repeatedly noted, LaMie’s
medical problems were severe and chronic. Her doctors
did not expect her condition to improve and in fact twice
indicated that, as time passed, LaMie had grown even
more ill and less able to endure the rigors of interstate
travel and live testimony. No evidentiary hearing was
needed on the day of trial because, even assuming that
all of the assertions made by McGowan’s counsel con-
cerning LaMie’s abilities at the December 18 deposition
were true, the government still met its burden of demon-
strating that LaMie was not able to travel from her home
in South Carolina to Chicago and endure the rigors of
testifying at trial without seriously damaging her
already precarious health. The court did not rely on stale
information in reaching this conclusion but rather relied
on the consistency of the reports regarding LaMie’s
deteriorating health over time, including a report of her
No. 08-1384 17
condition a few months before trial. See Donaldson, 978
F.2d at 393. Two months before trial, LaMie was
morbidly obese, suffering from brittle diabetes, peripheral
neuropathy, biliary cirrhosis, lipomatosis and other
severe and chronic conditions. By all accounts, her
mobility was severely limited. Her many problems were
not expected to improve in a few months’ time. See United
States v. Campbell, 845 F.2d 1374, 1377-78 (6th Cir. 1988)
(court did not abuse its discretion in finding without a
hearing that an elderly witness was unavailable to
testify when the court had found two weeks earlier
that exceptional circumstances justified taking the wit-
ness’s deposition; “it was highly unlikely that an elderly
invalid would undergo a miraculous rejuvenation
during the two-week interval”). LaMie’s ability to travel
locally to her lawyer’s office for a deposition did not
change the analysis of her ability to travel interstate and
endure courtroom testimony. There was nothing to be
gained by delaying the trial to hold an additional eviden-
tiary hearing on an issue over which there was no serious
dispute. The court had already conducted an evidentiary
hearing into the 2004 out-of-state car trip and there was
no new information to examine regarding that trip.
McGowan’s lawyer had been allowed an opportunity
earlier to cross-examine Dr. Sandoz, and his opinion had
not changed. In short, the district court’s January 8, 2007
assessment of LaMie, based on the 2005 assessment and
supplemented by Dr. Sandoz’s December 11, 2006 letter,
was timely and sound given the severe, chronic and
deteriorating nature of the medical problems from which
LaMie suffered.
18 No. 08-1384
McGowan’s reliance on Burns is misplaced. The
witness in that case was deemed unavailable to testify
because of mental illness. At a hearing on the issue, the
witness’s doctor referred to the applicable disorder as
both acute schizophreniform disorder and schizophrenia,
conditions with markedly different prognoses. As we
observed on appeal, the former is an acute condition
expected to last more than two weeks and less than six
months while the latter could last considerably longer.
The witness had been admitted to a hospital psychiatric
ward in September 1980 in a “catatonic stupor with
hallucinations and delusions.” Burns, 798 F.2d at 938. The
trial court found in January 1981 that the witness
suffered from acute schizophreniform disorder. By the
time of the March 1981 trial, a different judge had been
assigned to hear the case. That judge simply adopted
the earlier finding and determined that the witness re-
mained unavailable, even though six months had passed
since the initial diagnosis and the illness was not
expected to last more than six months. Moreover, new
information had become available regarding the
witness’s mental state but the trial court made no up-to-
date findings before concluding the witness remained
unavailable. Burns, 798 F.2d at 938-39.
We noted in Burns that in determining unavailability
of a witness, the court must consider both the severity
and the duration of the illness. 798 F.2d at 937. “The
duration of the illness need only be in probability long
enough so that, with proper regard to the importance of
the testimony, the trial cannot be postponed.” Id. We also
indicated in Burns the importance of making a final
No. 08-1384 19
determination regarding witness availability based on up-
to-date evidence about the witness’s physical or mental
condition at or near the time of trial. 798 F.2d at 939. If
the witness’s condition is temporary or of a short-term
nature, we remarked that the court should consider
whether to grant a continuance to allow the witness to
testify. Id.Unlike the witness in Burns, LaMie’s illnesses are both
severe and chronic. Her doctors’ opinions never changed:
she was seriously ill when the case began and her condi-
tion only deteriorated over time. The doctors advised
and the court found that the stress of travel and testifying
could seriously worsen her condition. Unlike the
diagnosis of a temporary mental illness, LaMie’s illnesses
were chronic, unlikely to change over time except to
worsen, and in fact did worsen over the time that passed
between the indictment and trial. In this context, the
court’s finding of LaMie’s unavailability was timely,
sound, and well within the court’s discretion.
Nor was McGowan’s Sixth Amendment right to
confront the witnesses against him compromised by
the procedure employed by the district court. We have
already concluded that the court did not err in finding
LaMie unavailable for trial. McGowan could not
seriously challenge the other part of the analysis, whether
he had an adequate opportunity for cross-examination.
Crawford, 541 U.S. at 68. McGowan was able to fully cross-
examine LaMie on several different occasions, during
depositions to preserve her core testimony and during
later depositions to address issues raised when addi-
20 No. 08-1384
tional documents were produced to the defense.
Moreover, the district court noted several times that the
videotapes allowed the jury to fully experience LaMie’s
testimony, to view her demeanor, to hear her voice and to
determine her credibility. We have already held that
there is no Confrontation Clause violation when ad-
mitting fully cross-examined testimony preserved by a
properly conducted Rule 15 deposition, and that this
holding had not changed after Crawford. United States v.
Cannon, 539 F.3d 601, 604 (7th Cir. 2008), cert. denied, 129
S. Ct. 2013 (2009); Donaldson, 978 F.2d at 392-93. We thus
see no error in the court’s decision to allow the use of
the videotapes nor in the court’s conclusion that
McGowan was not prejudiced by the use of the videotapes.
See United States v. Presbitero, 569 F.3d 691, 703-04 (7th
Cir. 2009) (errors arising under the Confrontation Clause
are subject to harmless error analysis).1
1
The government argued that, if we found that the district
court erred in admitting the tapes, the error was harmless
considering the evidence against McGowan. In assessing the
strength of the case against McGowan, the government asked us
to consider the videotapes themselves. We are hard-pressed to
understand this circular argument. In determining whether
evidence admitted in error is harmless, we consider the
strength of the remaining evidence against the defendant, among
other things. “An error is harmless when the reviewing court
is convinced that the jury would have convicted even absent the
error.” United States v. Conner, 583 F.3d 1011, 1025 (7th Cir. 2009)
(emphasis added); United States v. Ozuna, 561 F.3d 728, (7th Cir.
2009) (same). The government contends that a videotaped
(continued...)
No. 08-1384 21
B.
McGowan next argues that the district court erred when
it denied his motion to dismiss the indictment under
18 U.S.C. § 3282. McGowan contends that the indictment
was returned more than five years after the completion
of the crime, exceeding the five-year limitations period.
We review de novo the district court’s denial of a motion
to dismiss based on statute-of-limitations grounds, defer-
ring to the district court’s factual determinations. United
States v. Useni, 516 F.3d 634, 655 (7th Cir. 2008); United
States v. Are, 498 F.3d 460, 464 (7th Cir. 2007); United
States v. Barnes, 230 F.3d 311, 314 (7th Cir. 2000). The
statute of limitations for wire fraud is five years. United
States v. Tadros, 310 F.3d 999, 1006 (7th Cir. 2002).
The government filed the indictment on April 3, 2003,
charging McGowan with eighteen counts of wire fraud
and one count of investment advisor fraud. The indictment
alleged that McGowan’s scheme to defraud LaMie ran
from approximately September 1997 through July 1998. In
1
(...continued)
deposition should be exempt from this well-worn rule because
of its unique value. We see no reason to change this well-
established rule to create an exception for videotaped deposi-
tions. If they were admitted in error, they may not be con-
sidered in assessing the strength of the case against the defen-
dant. See also Neder v. United States, 527 U.S. 1, 18 (1999) (the
harmless-error inquiry must be essentially: “Is it clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error?”).
22 No. 08-1384
furtherance of that scheme, the indictment alleged that
McGowan made eighteen telephone calls between
April 13, 1998 and June 29, 1998 to LaMie, all within
five years of the filing of the indictment. Those eighteen
calls serve as the basis for the eighteen counts of wire
fraud. McGowan argues that the indictment came too
late because LaMie contacted the FBI in March 1998,
after she had invested her money with him. All of the
phone calls took place after the government knew about
the fraud and after McGowan had obtained LaMie’s
money. McGowan maintains that the calls could not have
been made in furtherance of a scheme about which the
authorities were already aware. According to McGowan,
because LaMie was already suspicious and had already
contacted law enforcement, nothing he said in those calls
could have lulled LaMie into a false sense of security
regarding her investments, and thus could not have
furthered a scheme to defraud LaMie.
In order to prove its wire fraud case against McGowan,
the government was obliged to prove McGowan’s partici-
pation in a scheme to defraud, his intent to defraud, and
his use of the wires in furtherance of the fraudulent
scheme. United States v. Roberts, 534 F.3d 560, 569 (7th Cir.
2008), cert. denied, 129 S. Ct. 1028 (2009); Tadros, 310 F.3d
at 1006. Wire communications that lull a victim into a
false sense of security after the victim’s money had
already been obtained, or that assist the defendant in
avoiding detection may be sufficient to further a scheme.
United States v. O’Connor, 874 F.2d 483, 486-87 (7th Cir.
1989). Both the Supreme Court and this circuit have
recognized “that calls made after the time that goods
No. 08-1384 23
have been fraudulently obtained can nevertheless
further the fraudulent scheme by making detection or
apprehension less likely.” O’Connor, 874 F.2d at 486 (citing
United States v. Lane, 474 U.S. 438, 451-52 (1986); United
States v. Sampson, 371 U.S. 75, 81 (1962); United States v.
Eckhardt, 843 F.2d 989, 994 (7th Cir. 1988)). The Supreme
Court has also rejected the contention that a mailing that
actually contributes to uncovering the fraudulent scheme
cannot supply the mailing element of the mail fraud
offense. Schmuck v. United States, 489 U.S. 705, 715 (1989).
Nor does it matter whether the scheme succeeds. Tadros,
310 F.3d at 1006. Rather, the relevant question is whether
the wire communication “is part of the execution of the
scheme as conceived by the perpetrator at the time,
regardless of whether the [wire communication]
later, through hindsight, may prove to have been counter-
productive and return to haunt the perpetrator of the
fraud.” Schmuck, 489 U.S. at 715.
Under those standards, the eighteen calls, which were
designed by McGowan to lull LaMie into a false sense
of security, were sufficient to meet the element of fur-
thering the scheme. The lulling was part of McGowan’s
investment advisor fraud, and so the eighteen calls bring
that count well within the period of limitations. Because
those calls all came within five years of the filing of the
indictment, the court was correct to reject McGowan’s
motion to dismiss on statute of limitation grounds.
A FFIRMED.
12-22-09