United States v. Jackson, Essie

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-1449 & 07-1577
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
E SSIE JACKSON and
JOE JACKSON,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division
No. 06 CR 32—Robert L. Miller, Jr., Chief Judge.
A RGUED JANUARY 25, 2008—D ECIDED O CTOBER 14, 2008
Before F LAUM, R OVNER, and SYKES, Circuit Judges.
R OVNER, Circuit Judge. Defendants-appellants Essie
Jackson and Joe Jackson were convicted of mail fraud and
conspiring to commit mail fraud along with their co-
defendant, Angela Blackwell Jackson, who is not a party
to this appeal. They appeal their convictions on a variety
of grounds. Finding no merit in any of their challenges,
we affirm.
2 Nos. 07-1449 & 07-1577
I.
The defendants were convicted of engaging in a con-
spiracy to defraud insurance companies by submitting
inflated claims in connection with three different motor
vehicles that were stolen or damaged. In each instance,
Angela Jackson (“Angela”) was the claimant as the owner
of the vehicle and the insured. And in each instance,
Angela represented that she had purchased the vehicle
from Essie Jackson (“Essie”) and was still indebted to her
for the purchase. Angela married Joe Jackson (“Joe”),
Essie’s son, during the course of the conspiracy. Joe
participated in the scheme by acquiring each of the vehi-
cles in Essie’s name; Essie then sold them to Angela. Joe
also supplied the receipts in support of a claim for
custom rims, tires, and electronic equipment reported
damaged or stolen from one of the vehicles.
The first of the three vehicles was a 1999 Ford Expedition
sport utility vehicle (“SUV”). Joe Jackson purchased that
vehicle on his mother’s behalf from Morgan’s Auto in
Paoli, Indiana. The vehicle had been involved in an acci-
dent and was a salvage vehicle. Generally speaking, a
salvage vehicle is one that previously has been damaged so
extensively that it has been declared a “total loss” for
insurance purposes, because the cost of repair is too
high in relation to the value of the vehicle—usually
around 75% or more of the vehicle’s worth—to justify
paying for the necessary repairs. Joe paid approximately
$6,800 for the Expedition.
Following the purchase, Jeff Lee restored the vehicle
with parts purchased by Joe. Lee testified that he was
Nos. 07-1449 & 07-1577 3
paid between $3,000 and $4,000 for his work, but that
if the repairs had been performed in a body shop, they
would have cost about $10,000. Joe testified that he put
a total of $13,000 to $14,000 into the restoration of the
SUV using money that his mother had given him—pre-
sumably, $10,000 for the necessary parts plus the $3,000 to
$4,000 that Lee said he was paid for his labor. However,
when Lee filled out the Affidavit of Restoration for a
Salvage Motor Vehicle that the Indiana Bureau of Motor
Vehicles (“BMV”) requires for issuance of a new title, he
reported using parts worth only about $1,100. Lee
testified that the rebuilt Expedition could have been
worth between $18,000 and $19,000.
Essie Jackson drove the restored Expedition for one
week, and then she agreed to sell the vehicle to her future
daughter-in-law, purportedly for the rather substantial
price of $33,000. Essie would later testify that this was a
non-negotiable, “take it or leave it” price (Tr. 567) that
Angela had accepted, making a down payment of $3,000
and agreeing to make monthly payments of $400 there-
after. The purchase price was close to what the Expedition
would have been worth as a new and undamaged vehicle.
“That was my price,” Essie testified. Tr. 588. But
Terry Morgan, the salvage dealer who sold the damaged
Expedition to Joe Jackson, testified that a restored salvage
vehicle is typically worth 35 percent less than a compara-
ble vehicle that was never damaged. Essie and Angela did
not enter into a written purchase agreement, and Angela
made the monthly payments to Essie in cash. Notably, the
application for title that Angela submitted to the Indiana
BMV, rather than reflecting a purchase price of $33,000,
4 Nos. 07-1449 & 07-1577
indicated that Essie had gifted the car to Angela. Angela
insured the car through GoAmerica Auto Insurance
(“GoAmerica”).
On September 29, 2001, Angela Jackson reported to
GoAmerica that the Expedition had been stolen from a
Days Inn in Hazlewood, Missouri, near St. Louis. Angela
subsequently completed an affidavit of vehicle theft
indicating that she had purchased the vehicle from Essie
for $33,000, had made a down payment of $3,000, was
making monthly payments of $400, and that she still
owed Essie $28,000 for the vehicle. In the affidavit, Angela
also represented that certain electronic equipment, along
with custom rims and tires, had been installed on the
vehicle. She claimed a total loss in the amount of $32,750
for the stolen Expedition.
GoAmerica claims adjuster Marc Eichenauer handled
Angela’s claim for the 1999 Expedition. On investigating
the theft of the SUV, Eichenauer learned that it had
been a salvage vehicle. Eichenauer subsequently took a
recorded statement from Angela in which she disclaimed
any knowledge at the time she purchased the vehicle
from Essie that it previously had been involved in
an accident.
Eichenauer also spoke with Essie Jackson about the
Expedition on several occasions. Essie made slightly
different statements about the vehicle on each occasion.
Essie at first claimed that the Expedition had been pur-
chased at auction for $10,500 and was in “great” condition.
Tr. 164. When Eichenauer asked her whether she had
bought the vehicle as a wreck, she said no, although she
Nos. 07-1449 & 07-1577 5
allowed that she had put a lot of money into the vehicle.
Eichenauer asked Essie to provide receipts for the work
she had done on the SUV along with documentation of
the title transfer. But Essie told him that she could give
him nothing because all of the paperwork had been
inside the Expedition when it was stolen. When Eichenauer
spoke with Essie a second time, she said that she had paid
between $15,000 and $16,000 for the SUV and had paid
additional sums to have it fixed but could not recall
how much.
At this point, Eichenauer, his suspicions aroused, turned
the claim over to GoAmerica’s fraud unit. An attorney
for GoAmerica took a sworn statement from Angela on
December 13, 2001. In her statement, Angela again repre-
sented that she had purchased the Expedition from Essie
for a total of $33,000. She again indicated that she had
made a down payment of $3,000 on the vehicle and had
been making monthly payments to Essie on the remainder.
She added that she had made both the down payment
and her monthly installment payments in cash, as she
did not have a checking account at that time. Angela
acknowledged that at the time she acquired the Expedition
from Essie, she learned that it previously had been dam-
aged. She did not know what Essie had paid for the
vehicle. Angela reported that she worked for Liberty
Mutual Insurance as a customer service representative
and earned approximately $700 for each two-week pay
period.
The Expedition was never recovered, and GoAmerica
ultimately paid Angela $21,511.25 for the loss, which it
6 Nos. 07-1449 & 07-1577
deemed to represent the fair market value of the vehicle.
The company paid nothing for the electronic equipment
or the custom tires and rims, as Angela lacked the
requisite supplemental coverage for such items. Essie
Jackson released her lien on the Expedition, and
GoAmerica mailed the settlement check to Angela Jackson.
Joe Jackson used the proceeds of this check to purchase
a 1999 GMC Suburban on June 13, 2002 at the Greater
Kalamazoo (Michigan) Auto Auction. He paid $13,920
in cash for the vehicle, to Azteca Auto Sales. The sales
invoice identified Essie Jackson as the purchaser. But
Essie immediately re-sold the vehicle to Angela. This time,
the two women entered into a form contract memori-
alizing Angela’s purchase of the vehicle. That agreement,
dated June 13, 2002, reflected that Angela agreed to pay
Essie $28,000 for the Suburban with no money down and
payments of $250 per month. Essie would later testify that
the purchase price was determined by Angela’s outstand-
ing debt to her on the stolen Expedition. But the applica-
tion for title that Angela filed with the Indiana BMV
reflected a sales price of only $1,000. Angela insured the
vehicle through AAA Insurance (“AAA”) on July 25, 2002,
and then, nearly nine months later, added specialized
coverage for both custom rims and tires as well as after-
market electronic equipment.
On May 29, 2003, the Suburban was struck and damaged
by a vehicle owned by the City of South Bend, Indiana at
a location near Essie Jackson’s house. There is no conten-
tion that the accident was staged or that the reported
damage was misrepresented. The damage to the vehicle
Nos. 07-1449 & 07-1577 7
prevented it from being driven, so Joe had the vehicle
towed down the street and left in Essie Jackson’s yard. On
the following day, Joe telephoned the South Bend police
to report that electronic equipment had been stolen
from inside the vehicle. Angela later filed a claim with
AAA for the damage to the Suburban’s body, including
one set of the custom rims and tires, and for the
stolen electronic equipment.
The Suburban subsequently was taken to a Chevrolet
dealership in South Bend, Gates Chevy World (“Gates
Chevrolet”), which was an authorized repair company
for AAA, so that the costs of repair could be estimated.
Because one of the wheels on the vehicle had been dam-
aged in the collision and required replacement and the
electronic equipment had been stolen, and because
Angela had purchased specialized coverage to cover those
items, AAA required documentation establishing their
cost. The manager of the Gates Chevrolet body shop,
Dennis J. R. Prenkert, who handled the estimates, advised
Joe Jackson to bring in receipts for those items. Joe pro-
vided Prenkert with a copy of an invoice from a Perfor-
mance Plus Tire & Automotive Centers warehouse
(“Performance Plus”) for the custom rims and tires on
the Suburban. The invoice had been altered in the
copying process: the phone number of the purchaser
had been whited-out, and the (smaller) cash register
receipt for the items had been placed on top of the invoice
in such a way as to obscure the purchaser’s name and
contact information on the photocopy. It also turned out
that the purchase reflected on the invoice had been
made using a stolen Discover Card number. Records
8 Nos. 07-1449 & 07-1577
showed that the rims and tires purchased in this transac-
tion had been shipped to Mishawaka, Indiana, a suburb of
South Bend. Joe provided two additional receipts from
Elmo’s Stereo Center for the electronic equipment. One
was a receipt that was dated May 15, 2003 (although it
appears the year was altered from 2002 to 2003), and was
made out to Joe Jackson and reflected a purchase of four
television screens for the amount of $4,004; the second
was a receipt for the purchase of a DVD player and other
equipment dated October 29, 2002, that was made out
to Angela Jackson in the amount of $3,280.
Ultimately AAA decided to declare the Suburban a total
loss rather than pay for its repair due to the costs associ-
ated with the damage to the vehicle and replacement of
the electronic equipment reported stolen from its interior.
In June 2003, AAA mailed two settlement checks to
Angela Jackson: one for the vehicle, including the
damaged tire and rim, in the amount of $21,533.49, made
out to both Angela and Essie Jackson, and a second check
in the amount of $3,500 payable to Angela Jackson only
for the electronic equipment. After Essie and Angela each
endorsed the first of these checks, and Angela endorsed
the second, the proceeds of the two checks were deposited
into the joint checking account of Angela and Joe.
Joe Jackson purchased the third vehicle, a 2001 Chevrolet
Suburban, on July 14, 2003, from Sunburst Car Company
in Arizona. Joe and Angela had found the vehicle on the
Internet and decided to buy it, notwithstanding the
distance involved, because it was in excellent condition
and the listed price was the lowest they had seen. Joe
Nos. 07-1449 & 07-1577 9
flew out to Arizona and paid for the vehicle with a cash-
ier’s check in the amount of $16,625, using the proceeds of
the checks issued by AAA for the GMC Suburban. Once
again, Joe purchased the vehicle in Essie Jackson’s name.
On the same date, Essie sold the vehicle to Angela Jackson,
and the two of them entered into a written agreement
reflecting a purchase price of $28,000 with no money
down and monthly payments of $500. Four days later,
on July 18, Essie and Angela Jackson jointly applied for
title on the vehicle. Once again, the application for title
filed with the Indiana BMV reflected a different purchase
price—$16,500—than the one that Angela purportedly
had agreed to pay Essie for the vehicle. Angela insured
this vehicle with AAA as she had the former, and she
renewed her coverage for custom rims, tires, and electronic
equipment after spending additional sums to install
these items on the vehicle. She later increased the
coverage for electronic equipment to $4,500.
On July 4, 2004, Angela reported that the Suburban had
been stolen while she was in Chicago attending the fire-
works show at the Taste of Chicago food festival. When
Angela submitted her proof of loss claim forms for the
theft, she included receipts for custom tires and rims
and electronic equipment totaling $6,006. She also
included a written sales agreement between herself and
Essie Jackson for the vehicle dated July 23, 2004—a date
nearly three weeks after the vehicle was stolen.
AAA turned the claim over to its fraud investigator,
who took a sworn statement from Angela Jackson. When
Angela appeared for the statement, she brought with
10 Nos. 07-1449 & 07-1577
her a different version of the sales agreement between
herself and Essie, this one dated July 14, 2003. Angela
explained that when she had entered into the agreement
with Essie, she had prepared two original copies of the
agreement, one for herself and one for Essie; one of
those copies bore the erroneous 2004 date and the other
bore the correct 2003 date. In the course of making her
statement, Angela stated that she was present to watch
the fireworks at the Taste of Chicago on July 4, 2004,
and that when she returned to the spot where she had
left her car, it was gone. (A U.S. postal inspector would
later testify that the Taste of Chicago fireworks show
always takes place on July 3 rather than July 4.) Angela
identified a receipt from Alltronics in the amount of
$6,006.34 as one that she had submitted in support of her
claim for the loss of electronic equipment in the vehicle.
She identified the signature on the receipt as her own
and confirmed that the items listed on the receipt had
been purchased on April 18, 2004, and installed on her
vehicle at Alltronics. However, subsequent investigation
by AAA’s fraud investigator and later by a U.S. Postal
Inspector would reveal that the Alltronics receipt was
counterfeit. The receipt reflected the purchase of
electronic equipment that Alltronics did not carry in its
store. Moreover, the owner of the store indicated that,
according to store records, the receipt number corre-
sponded to a purchase in the amount of $66.78.
Smelling fraud in the air, AAA denied Angela’s claim
and referred the matter to the authorities. An investigation
by the U.S. Postal Inspection Service led the government
to conclude that the insurance claims submitted by
Nos. 07-1449 & 07-1577 11
Angela Jackson on all three of the vehicles were fraudu-
lent. On March 6, 2006, a grand jury indicted Essie Jackson,
Angela Jackson, and Joe Jackson. Count One of the indict-
ment charged the three defendants with conspiring to
commit mail fraud in violation of 18 U.S.C. § 371. Counts
Two through Six charged six acts of mail fraud in viola-
tion of 18 U.S.C. § 1341 corresponding to various mailings
that occurred in connection with the insurance claims.
A jury convicted all three defendants on all counts of the
indictment. Essie Jackson was ordered to serve a term of
fifteen months in prison. Angela Jackson received a
sentence of thirteen months. Joe Jackson was ordered to
serve the longest prison term of twenty-four months.
Essie and Joe Jackson appeal their convictions (no
objection is raised as to their sentences). Angela has
not pursued an appeal.
II.
Essie Jackson
A. Sufficiency of Evidence as to Essie Jackson on Count
One Conspiracy Charge
Essie Jackson challenges her conviction on the charge
that she engaged in a conspiracy with her son and
daughter-in-law to commit mail fraud. A conspiracy, of
course, is an agreement among two or more persons to
engage in a criminal act. E.g., United States v. Gilmer, 534
F.3d 696, 701 (7th Cir. 2008). Here, the criminal act was
mail fraud, defined as the use of the mails to carry out a
12 Nos. 07-1449 & 07-1577
“scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises.” 18 U.S.C. § 1341. Establish-
ing the offense of mail fraud entails proof that the de-
fendant participated in a scheme to defraud involving
one or more material misrepresentations, that she acted
with the intent to defraud, and that the mails were used
in furtherance of the scheme. E.g., United States v. Sorich,
523 F.3d 702, 708 (7th Cir. 2008), petition for cert. filed (U.S.
Sept. 26, 2008) (No. 08-410); see also Neder v. United States,
527 U.S. 1, 25, 119 S. Ct. 1827, 1841 (1999). Proof that a
defendant conspired to commit mail fraud—an offense
distinct from mail fraud itself, see United States v. Lanas, 324
F.3d 894, 900 (7th Cir. 2003)—demands proof that there
was conspiratorial agreement to commit mail fraud, that
the defendant became a member of that conspiracy with
the intent to further its aim, and that at least one member
of the conspiracy committed an overt act in furtherance
of the conspiracy. E.g., United States v. Sims, 329 F.3d 937,
943 (7th Cir. 2003). Essie contends that there is inadequate
proof that she had any knowledge that a conspiracy to
defraud the insurance companies existed. In her view, the
jury’s verdict could only have been based on conjecture
and speculation. In assessing the sufficiency of the evi-
dence, we are of course obliged to view the evidence in
the light most favorable to the government, and we will
sustain Essie’s challenge only if no jury reasonably could
have found beyond a reasonable doubt that she was a
knowing participant in the conspiracy. See, e.g., United
States v. Farris, 532 F.3d 615, 618 (7th Cir. 2008).
We begin by noting that the evidence was more than
sufficient to establish the existence of a conspiracy to
Nos. 07-1449 & 07-1577 13
defraud the insurers of the three vehicles. Each of the
defendants played a consistent role in the conspiracy: Joe
Jackson arranged the acquisition of each of the three
vehicles; Essie Jackson was the lienholder and seller (to
Angela) of all three vehicles; and Angela Jackson was in
each instance the purchaser (from Essie) of the vehicle as
well as the insured.
Although the three vehicles differed in their market
value, the figure of $28,000 recurred in each of the three
sales agreements between Essie and Angela: in the first
instance, $28,000 was the outstanding balance that Angela
purportedly owed on the 1999 Expedition, and in the
second and third instances, $28,000 was the price for
which Essie had agreed to sell the 1999 GMC Suburban
and 2001 Chevrolet Suburban to Angela.
Yet, the actual cost of the vehicle in all three instances,
including in particular the first, was significantly less
than $28,000. The Expedition was purchased as a salvage
vehicle for $6,800, and was repaired at a likely cost some-
where between the $1,100 worth of parts reported on the
BMV restoration form plus the $3,000 to $4,000 that Lee
was paid for his work and the $10,000 Lee said a body
shop would have charged. Even if the Jacksons had spent
$13,000 to $14,000 to restore the vehicle, as Joe Jackson
testified, as a salvage vehicle it would never have been
worth the $33,000 (close to its original market price as a
new vehicle, without the 35% reduction for restored
salvage vehicles) that Essie Jackson purportedly charged
Angela Jackson for the vehicle. The 1999 GMC Suburban
was purchased for $13,920, and yet Essie allegedly sold it
14 Nos. 07-1449 & 07-1577
to Angela Jackson for double that amount. The 2001 Chevy
Suburban was purchased for $16,600, but again Essie
agreed to sell it to Angela for much more than
that—$28,000. In short, Essie Jackson was purportedly
selling vehicles to Angela for far more than they were
actually worth. The notion that the sales price for the
second and third vehicles was tied to Angela’s indebted-
ness of $28,000 on the first vehicle is implausible, given
that the salvaged 1999 Expedition was never worth that
amount, let alone the $33,000 price Essie purportedly
charged Angela for the SUV.
Moreover, the Jacksons left a document trail revealing
that they reported wildly different values for the vehicles
depending on their immediate purpose. Angela Jackson’s
application for title on the 1999 Ford Expedition
reported that Essie Jackson was making a gift of the
Expedition to her, which is, to say the least, inconsistent
with the notion that Essie was charging her $33,000 for
the vehicle. Angela’s application for title on the 1999
GMC Suburban reported that Essie had sold that vehicle
to her for $1,000. And her application for title on the
2001 Chevrolet Suburban reported that Essie was selling
that vehicle to her for $16,500. All three values were
much lower than the price the defendants later claimed
Essie had sold the vehicles to Angela for: $33,000 for the
Ford Expedition, $28,000 for the GMC Suburban, and
$28,000 for the Chevrolet Suburban.
There were other signs of fraud as well. Following the
theft of the 1999 Expedition, Angela and Essie both made
statements evincing an intent to hide the fact that the
Nos. 07-1449 & 07-1577 15
Expedition had been a salvage vehicle. The original sales
agreement that Angela submitted to her insurer in
support of her third claim, for the 2001 Suburban, bore a
date that followed the theft of that vehicle by more than
two weeks. And, finally, the receipts that Joe and Angela
Jackson submitted to support their claim for damage to
or theft of the specialized rims, tires, and electronic equip-
ment on the two Suburbans bore multiple and persuasive
indicia that they had been doctored to reflect purchases
that had not actually occurred.
The evidence was also more than sufficient to establish
Essie Jackson’s knowing participation in and intent to
further this conspiracy. As we have noted, Essie assumed
the role of the seller/lienholder of the three vehicles. She
was a key co-conspirator in that regard, as it was her
purported sales agreements with Angela that the con-
spirators relied upon to establish the value of the vehicles
for insurance purposes. As the seller of each car, Essie
signed the title applications and other paperwork atten-
dant to her acquisition of the vehicles and sales to Angela.
Those documents, as we have noted, typically assigned a
much lower value to the cars (and in the case of the
Expedition, the parts used to restore the vehicle) than the
price for which she later sold the vehicles to Angela. Essie
was also the lienholder on each vehicle (and shared title
with Angela on the third). And last but not least, Essie
also endorsed the insurance checks that were issued to
her on the first two vehicles as the lienholder. The jury
could readily and reasonably infer from such evidence
that Essie was a knowing participant in the conspiracy.
16 Nos. 07-1449 & 07-1577
B. Due Process
Essie Jackson contends that she was deprived of due
process when the government purportedly suppressed
evidence relevant to the purchase of the first vehicle, the
1999 Ford Expedition, and otherwise misled the jury as to
what the facts revealed concerning her ability to pay for
the purchase and restoration of that vehicle. Cf. Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963)
(government violates due process when it suppresses
material evidence favorable to accused); Napue v. Illinois,
360 U.S. 264, 269, 79 S. Ct. 1173, 1177 (1959) (conviction
obtained through evidence known to be false violates due
process). Pursuant to Federal Rule of Criminal Procedure
33(b)(1), she requested a second trial on the basis of newly
discovered evidence that would have put her ability to
pay for the Expedition in a different light, but the
district court denied her motion. The decision whether to
grant the parties a new trial is one committed to the
district court’s discretion, United States v. Woolfolk, 197
F.3d 900, 904-05 (7th Cir. 1999), and our review of that
decision is deferential, id. at 904-05.
The parties agree that the Expedition was purchased
from Morgan’s Auto for a total of $6,800. A down payment
of $500 was made via a cashier’s check dated April 18,
2000; that check was made payable either to Morgan’s
Auto or to Joe Jackson. An additional payment in the
amount of $2,000 was made by means of a cashier’s check
dated May 2, 2000, and payable either to Morgan’s Auto
or to Essie Jackson. A final balance of over $4,000 was
paid in cash to Morgan’s Auto by Joe Jackson on May 16,
Nos. 07-1449 & 07-1577 17
2000. Both Joe and Essie Jackson testified that the money
for all three payments came from Essie.
Essie Jackson had bank accounts at both the Teachers
Credit Union (“TCU”) and the Notre Dame Federal Credit
Union (“NDFCU”). At trial, both in cross-examining Essie
and in reviewing her bank statements with representatives
of the two credit unions, the government sought to estab-
lish that she did not have the resources to pay for the
Expedition and/or did not pay for that vehicle. Proof
along those lines would have bolstered the government’s
view that Essie was never the true owner of the vehicle and
that her sale of the Expedition to Angela was a sham.
Essie’s NDFCU bank statement from May 2000 readily
supported the inference that she did make the second
payment of $2,000 for the Expedition on May 2. The
statement indicated that on that date, Essie had appeared
at the credit union with $2,365 in cash. $2,000 was used
to obtain a cashier’s check payable to Morgan’s Auto, and
the remaining $365 was deposited into her account. But
the May statements from neither the NDFCU nor the
TCU account bore any comparable evidence directly
supporting the notion that Essie was the source of the
subsequent cash payment of $4,000-plus on May 16. In
particular, neither statement reflected withdrawals of
$4,000 or more in the weeks preceding that payment. This
led to the following dialogue during the government’s
cross-examination of Essie at trial:
Q. Okay. Now, you also heard that they [Morgan’s
Auto] needed another $4,000 in cash right?
A. Yes.
18 Nos. 07-1449 & 07-1577
Q. That was your cash?
A. Yeah that was mine.
Q. That was your cash?
A. Yes.
Q. All right. Now we looked at your bank statement
remember, for May 2000. Do you remember look-
ing at that?
***
A. Yes. Yes.
Q. Okay. And we didn’t see $4,000 in cash coming out
of your Notre Dame Credit Union account, did we?
A. No.
Q. And we didn’t see that money coming out of your
Teachers Credit Union account either?
A. No.
Q. So that cash you just left—you keep at home?
A. Yes, I do.
Tr. 564-65. Based on the lack of indicia in the May bank
statements that a $4,000-plus withdrawal had been made,
the government was clearly skeptical of the notion that
Essie Jackson could have been the source of the final
payment on the 1999 Expedition.
Mrs. Jackson contends that the government’s case on
this point was misleading by omission, because had her
April 2000 TCU statement been presented to the jury, it
would have been clear that withdrawals from her
Nos. 07-1449 & 07-1577 19
accounts in both April and May were sufficient to
enable her to make the final cash payment on the Expedi-
tion on May 16 as well as the $2,000 payment (via cashier’s
check) on May 2. She notes that her May statement
from TCU reflects total withdrawals of just under $5,700
that month, and her April TCU statement reflects two
withdrawals in mid-April totaling over $2,700. Added to
the $2,000 cashier’s check purchased from NDFCU on
May 2, these withdrawals demonstrate that Mrs. Jackson
had over $10,000 in proceeds available to her in the
weeks preceding the final payment for the Expedition
made on May 16. She chastises the government for “sup-
pressing” the April statement and for focusing the jury’s
attention on her May statements alone.
The fact that the government did not present the April
statement to the jury cannot be characterized as the
suppression of evidence in violation of its duties under the
Due Process Clause. The April statement was one from
Essie Jackson’s own account, and as such it was as accessi-
ble to her as it was to the government. See United States
v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996) (“the govern-
ment will not be found to have suppressed material
information if that information also was available to a
defendant through the exercise of reasonable diligence”)
(coll. cases). If she wanted to bring the April withdrawals
to the jury’s attention, she was free to do so. The gov-
ernment cannot be faulted for not doing so on its own.
In the same vein, the government did not hide exculpa-
tory evidence from the jury when it neglected to have the
bank employee who testified concerning the May TCU
statement point out that there were withdrawals from
20 Nos. 07-1449 & 07-1577
that account in May that, collectively, exceeded $4,000.
Those withdrawals were, of course, reflected on the bank
statement, and Essie’s own counsel could have elicited
that information from the bank employee. Indeed, the
statement itself was admitted into evidence, and so the
jury itself would have seen those withdrawals. Nothing
was hidden from the jury. In any case, Essie seemed to
indicate in her testimony that the $4,000-plus for the final
payment came from cash she kept at home rather than her
credit union accounts. Tr. 565. So the notion that any of the
bank statements were critical evidence appears to be
inconsistent with Essie’s own testimony.
In any case, it is doubtful that any of this would have
made a difference. Two of the withdrawals that Essie
relies on from May took place after the May 16 payment.
Moreover, much of the money in these accounts was from
rental income on three different homes that Mrs. Jackson
owned in South Bend, and Mrs. Jackson used the rental
payments to cover the mortgages with little or nothing
left to spare. And beyond the rents from her properties,
Mrs. Jackson’s income was limited. She worked as a
housekeeper for Notre Dame University and earned just
under fourteen dollars per hour. So the notion that
the withdrawals in April and May were available to fund
the $4,000-plus cash payment to Morgan’s Auto on May 16
is dubious—or, to use the district court’s phrase, “ex-
tremely speculative.” R. 106 at 2. And finally, as we have
noted, Essie Jackson herself indicated that the final pay-
ment was made from cash she kept at home.
For all of these reasons, the district court did not abuse
its discretion in rejecting Essie Jackson’s contention that
Nos. 07-1449 & 07-1577 21
the government had violated her due process rights and
that she was entitled to a new trial.
C. Ineffective Assistance of Counsel
Essie Jackson contends that she was deprived of the
effective assistance of trial counsel, but we may make
short work of this argument. She contends that her
counsel should have cross-examined a number of the
government’s witnesses more thoroughly so as to elicit
information that would have supported her defense. As
to the funds in her bank accounts, for example, she argues
that her counsel should have elicited testimony from the
TCU representative acknowledging that there had been
withdrawals from her TCU account in May that might
have funded the May 16 payment on the Expedition. She
also suggests that counsel might have gotten GoAmerica’s
claims adjuster, Marc Eichenauer, who recounted the
conflicting statements that she had made concerning
what she had paid for the Expedition and the condition
it was in, to acknowledge that based on the documents
in the company’s possession, GoAmerica was well aware
that the Expedition had been a salvage vehicle and what
she had paid for it. But deciding what questions to ask a
prosecution witness on cross-examination is a matter of
strategy, see United States v. Hirschberg, 988 F.2d 1509, 1513
(7th Cir. 1993); see also United States v. Smith, 62 F.3d 1073,
1078 (8th Cir. 1995), and as this is a direct appeal, we
have no record as to what counsel’s thinking was in opting
not to cross-examine these witnesses in the way Mrs.
Jackson asserts that he should have. See Massaro v. United
22 Nos. 07-1449 & 07-1577
States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694 (2003) (noting
that raising a claim of ineffective assistance on collateral
review is preferable to direct appeal in most instances);
see also, e.g., United States v. Cruz-Velasco, 224 F.3d 654, 664
(7th Cir. 2000); United States v. Godwin, 202 F.3d 969, 973
(7th Cir. 2000). In any case, even if we were to leap past
this problem and assume that counsel’s cross-examination
was deficient, Essie has not established a reasonable
likelihood that additional cross-examination along the
lines she has suggested might have resulted in her acquit-
tal. Id. at 973-74.
Joe Jackson
D. Sufficiency of the Evidence as to Mail Fraud Charges
Count Five
Count Five of the indictment was based on the mailing
of the $21,533.49 settlement check from AAA to Angela
and Essie Jackson for the damaged 1999 GMC Suburban,
which the insurance company had declared a total loss.
That settlement included the damage to one of the four
sets of specialty tires and rims resulting from the collision
with the city vehicle. The cost of the damaged rim and tire
was covered by supplemental coverage that Angela
Jackson had obtained on the vehicle. And it was Joe
Jackson who supplied the photocopied invoice from
Performance Plus that was used to establish the value of
the rim and tire. This was the only instance in which Joe
was directly responsible for a misrepresentation made
in support of an insurance claim. Recall that Joe was
asked to supply the receipt for the custom tires and rims to
Nos. 07-1449 & 07-1577 23
J. R. Prenkert, the manager of the Gates Chevrolet body
shop who prepared an estimate on the damage to the
vehicle as an agent of AAA. The invoice turned out to
have been altered, and the underlying purchase had been
made with a stolen credit card number. The invoice also
indicated that the rims and tires were purchased in
April 2002, although the Suburban was not purchased
until June 2002. Joe contends that any representation as
to this receipt was immaterial, because there was no
dispute that the custom rims and tires were in fact on the
Suburban and that one pair of the rims and tires was
actually damaged in the collision. Under the terms of
Angela Jackson’s custom equipment coverage on the car,
AAA was obliged to compensate her either for the cash
value of the damaged rim and tire or the cost of repair
or replacement, whichever was less. Consequently, he
reasons, the insurance company was obliged to reimburse
his wife for the cash value of the damaged items, regard-
less of the fraudulent nature of the receipt he presented
to Prenkert and any representation by him as to where
he purchased the rims and tires or what he paid for them.
But the jury reasonably could have found that the
receipt was material in the sense that it had a “natural
tendency to influence, or [was] capable of influencing”
AAA in its decision to reimburse Angela Jackson
pursuant to the insurance policy. Neder v. United States,
supra, 527 U.S. at 16, 119 S. Ct. at 1837 (internal quotation
marks and citations omitted); United States v. Henningsen,
387 F.3d 585, 589 (7th Cir. 2004) (“A false statement is
material [for purposes of a mail fraud charge] if it has ‘a
natural tendency to influence, or is capable of influencing,
24 Nos. 07-1449 & 07-1577
the decision of the decisionmaking body to which it is
addressed.’ ”) (quoting United States v. Fernandez, 282 F.3d
500, 508 (7th Cir. 2002)). The undisputed testimony at trial
was that AAA would reimburse the insured for items
covered under specialized coverage only upon verifica-
tion of the cost of the lost or damaged items. Tr. 492. That
is why Prenkert demanded a receipt for the damaged
custom rim and tire from Joe Jackson. And Prenkert
testified that he relied on the receipt that Joe provided in
preparing the damage estimate for the vehicle. (He divided
the total reported cost of the rims and tires by four and
reported the resulting figure as the estimated value of the
damaged rim and tire.) Even if, as Joe suggests, the
Jacksons’ cost in acquiring the rims and tires was not
dispositive of the amount AAA was required to pay under
the specialized coverage, the receipt could still be viewed
as material. An insurer may reasonably insist on a receipt
and rely on that receipt for any of several reasons: as one
source, if not the exclusive source, of information as to the
value of the damaged or stolen item, to establish the
insured’s legitimate possession of the item (to confirm
that it was not stolen from someone else, for example—see
the cases cited infra at 31-32), and to document the nature
and authenticity of the item (all that glitters is not gold).
Cf. United States v. Chandler, 752 F.2d 1148, 1151 (6th Cir.
1985) (18 U.S.C. § 1001 false statement case) (altered
receipt was the type of false statement that could have a
tendency to affect tax determination, and thus was mate-
rial, even if it did not actually affect IRS’s decision). This
is particularly true as to specialized coverage, which by
its nature is designed to insure items that are not de rigeur
on automobiles.
Nos. 07-1449 & 07-1577 25
Counts Two, Three, and Four
The mail fraud charges set forth in Counts Two, Three,
and Four all were based on mailings related to the insur-
ance claim that Angela submitted to GoAmerica for the
stolen 1999 Ford Expedition. Joe Jackson did not
himself make any of the fraudulent misrepresentations
concerning that vehicle. Even so, co-schemers are jointly
responsible for one another’s acts in furtherance of the
scheme; so upon finding that Joe was a knowing partici-
pant in the scheme, the jury was free to hold him to
account for any fraudulent misrepresentations that were
made by Essie and/or Angela after he joined the scheme.
See United States v. Adeniji, 221 F.3d 1020, 1026 (7th Cir.
2000) (citing, among other authorities, United States v.
Wilson, 506 F.2d 1252, 1257 (7th Cir. 1974)); see also
Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S. Ct.
1180, 1183-84 (1946) (participant in conspiracy is liable
for foreseeable acts of his co-conspirators in furtherance
of conspiracy); United States v. Macey, 8 F.3d 462, 468 (7th
Cir. 1993) (“In a mail fraud case, a defendant is liable
for the acts of his co-conspirator even if the indictment
did not charge conspiracy.”). Jackson does not dispute
that point, but as with Count Five, he maintains that the
evidence was insufficient to establish that any of his co-
defendants’ misrepresentations were material.
The misrepresentations concerning the Expedition had
to do with the price that Essie Jackson paid for the Expedi-
tion and the condition that the vehicle was in when she
acquired it. Marc Eichenauer, GoAmerica’s representative,
testified that the condition of the vehicle factors into the
26 Nos. 07-1449 & 07-1577
claims adjustment process as a measure of what the
insurer owes the insured for the vehicle; and the purchase
price of the vehicle is in turn something that the insurer
takes into account as an indicator of what condition the
vehicle was in when acquired. But as Joe points out,
Eichenauer went on to note that GoAmerica also relies
on published information on the value of used cars to
assess the worth of a vehicle which previously had been
damaged and declared a loss, and that GoAmerica had
done precisely that with the Expedition:
I believe, in this particular case, we looked at used-car
guides to come up with a value and used the loan
value on this particular vehicle, and that’s a value
that we use in cases where the vehicle had been a
total loss before. So even though there were some
questions that we didn’t get answered on the claim, we
did know that the vehicle had, in fact, been in an
accident before, and, therefore, we didn’t rate it at
retail value.
Tr. 170. Based on this testimony, Joe argues that any
representations Essie or Angela Jackson made to
GoAmerica concerning the condition and price paid for the
Expedition could not have been material, because
GoAmerica was aware of the prior history of the vehicle
and ultimately relied on publicly available data about
the value of the vehicle rather than on anything the
Jacksons told the company about its worth.
But here again Joe exhibits an unduly narrow view of
materiality. That GoAmerica ultimately did not actually
rely on the defendants’ representations as to the value
Nos. 07-1449 & 07-1577 27
and condition of the vehicle does not render their state-
ments immaterial. Neder, 527 U.S. at 24-25, 119 S. Ct. at
1841; see also United States v. Rosby, 454 F.3d 670, 674 (7th
Cir.) (“Reliance is not . . . an ordinary element of federal
criminal statutes dealing with fraud. Neder so holds for
§ 1341 in particular.”), cert. denied, 127 S. Ct. 607 (2006);
United States v. Reynolds, 189 F.3d 521, 525 (7th Cir. 1999)
(charge of bank fraud pursuant to 18 U.S.C. § 1344) (“A
statement is material if it would be capable of influencing
the decisionmaker’s decision; . . . there is no requirement
that the statement must in fact influence the decision-
maker (that would be reliance).”). Joe does not dispute
that the purchase price and condition of the insured
vehicle are highly material to the insurer. It is unsurprising
that insurers like GoAmerica routinely will look first to
the insured for information on such subjects: the insured
is in the best position to know what he paid for the
vehicle and what condition the vehicle was in when he
bought it. Nor is it surprising that when the insurer
receives conflicting or otherwise suspicious information,
as GoAmerica did from Angela and Essie Jackson, it will
look elsewhere for more reliable information about the
true value of the vehicle. The fact that GoAmerica ulti-
mately relied on used-car guides to assess the value of the
Expedition does not detract from the materiality of the
fraudulent statements that Essie and Angela made about
the acquisition of the Expedition. Those were statements
that the Jacksons hoped would deceive GoAmerica into
paying nearly full retail price on a salvaged vehicle, they
were statements on material subjects that insurers rou-
tinely take into account in the claims process, and they
28 Nos. 07-1449 & 07-1577
were statements upon which the insurer might have
relied to its detriment had the Jacksons been more adept
at covering their tracks.
Count Seven
The mail fraud charge set forth in Count Seven was
founded on the vehicle theft claim form and supporting
document that Angela Jackson sent to AAA in connection
with the 2001 Chevrolet Suburban. Included among the
documentation was Angela Jackson’s proof of loss affida-
vit, which averred that she had purchased the Suburban
from Essie Jackson for $28,000, a purchase agreement
between Angela and Essie Jackson reflecting the same
purchase price, and a receipt from Alltronics for electronic
equipment that allegedly was in the Suburban at the
time of the theft. The $28,000 purchase price reported
on the affidavit and purchase agreement was inconsistent
with the $16,650 that Joe Jackson paid to the Arizona
car dealership for the Suburban and the $16,500 reported
to the Indiana BMV when Angela and Essie Jackson
jointly applied for a title to the Suburban; the date of the
purchase agreement between Angela and Essie Jackson
was July 23, 2004, several weeks after the Suburban was
reportedly stolen; and the Alltronics receipt was not
genuine in that it reflected the purchase of electronic
equipment that an Alltronics employee would testify
was not carried by Alltronics.
Although AAA was not deceived by these representa-
tions (they paid nothing on the claim for the 2001 Chevy
Suburban), they were material nonetheless. Again, an
Nos. 07-1449 & 07-1577 29
insurance company looks first to the insured for informa-
tion about a stolen vehicle, and information that the
insured provides about the price she paid for the vehicle
helps the insurer gauge the condition and value of the
vehicle. Likewise, as we have discussed, it is routine for
insurance companies to insist on receipts for electronic
and other items insured through supplemental coverage;
insurers look to such receipts for confirmation that the
items were genuine and actually were in or on the
stolen vehicle. That an insurer may not ultimately rely (or
rely exclusively) on such information does not render
them immaterial.
E. Evidence concerning commission of credit card fraud
in the purchase of the custom tires and rims
As discussed, following the collision that damaged the
1999 GMC Suburban and one of the custom tires and rims
on the vehicle, Joe Jackson submitted a receipt reflecting
the purchase of a set of four custom rims and tires in
April 2002 from Performance Plus for just over $4,000. The
rims and tires had been purchased over the telephone
from a Performance Plus warehouse in Long Beach,
California using a Discover Card. And it turned out that
these items had been purchased using a stolen credit card
number. A field investigation manager for Discover
Financial Services, David Ostertag, testified that the
purchase had been made without the knowledge of the
credit card holder, who lived in Florida. When the card
holder reported the unauthorized charge, Discover had
looked into the matter and determined that someone had
30 Nos. 07-1449 & 07-1577
managed to have the address associated with the card
changed just before this purchase was made; the custom
rims and tires were then shipped to the new address,
which was located in Mishawaka, Indiana, a South Bend
suburb. Ostertag recounted all of this for the jury and
his written report, which reflected his determination that
the purchase of the tires and rims was fraudulent, was
admitted into evidence over Joe Jackson’s objection.
Joe, by the way, later testified that he did not purchase
the custom tires and rims directly from Performance Plus.
Instead, according to his account, he purchased them on
the street from a woman unknown to him who
happened to drive by his home while he was outside
washing the Suburban. She offered to sell him the tires
and rims, he agreed to pay her $4,000 in cash for the
items, and she provided him with a copy of the Perfor-
mance Plus invoice and receipt, after deleting or
obscuring personal information on the invoice that she
did not want him to have.
Joe contends that the prejudicial impact of Ostertag’s
testimony and report outweighed its probative value and
that the district court should have sustained his objection
and excluded the report pursuant to Federal Rule of
Evidence 403. (In a footnote, he suggest that Ostertag’s
testimony “may have” violated Rules 404(b) and 702, and
that admission of Ostertag’s report may also have run afoul
of Rule 608(b). But he did not object on these grounds
below, and his mere mention of these rules is insufficient
to require our attention. E.g., United States v. Acosta, 534
F.3d 574, 590 (7th Cir. 2008).) Joe reasons that although
Nos. 07-1449 & 07-1577 31
he was not charged with defrauding the credit card
company, and the government conceded it had no proof
that he committed credit card fraud, Ostertag’s testimony
and report implicated him in the fraud against Discover
and likely tainted the jury’s assessment of his guilt on
Count Five, if not all of the charges. We review the district
court’s decision to admit this evidence for abuse of dis-
cretion. E.g., United States v. Samuels, 521 F.3d 804, 813
(7th Cir. 2008).
Like the district court, we agree that this evidence was
prejudicial to Joe, but we cannot say that it was so lacking
in probative worth as to render it inadmissible under Rule
403. Joe had presented the Performance Plus invoice as
proof of the identity and cost of the custom rims and tires
that he and his wife had acquired and installed on the
GMC Suburban. A jury could reasonably view the facts
underlying the purchase memorialized in that invoice as
relevant in assessing his intent to defraud the insurer. That
the tires and rims were obtained by fraud—whether or not
the fraud was committed by Joe himself—makes it more
likely that he and his co-defendants, in demanding com-
pensation for the damaged rim and tire, were seeking
compensation for a loss that they had not actually incurred.
The jury was not required to believe Joe’s story that he
had innocently paid $4,000 in cash for the tires and rims
to a stranger who happened by his house and offered them
for sale; the jury reasonably could have inferred that he
was involved in their fraudulent purchase from Perfor-
mance Plus. This was not collateral evidence, but evidence
that the Jacksons had not legitimately acquired the items
for which they were now seeking recompense. See Claflin v.
32 Nos. 07-1449 & 07-1577
Commonwealth Ins. Co. of Boston, 110 U.S. 81, 94-97, 3 S. Ct.
507, 514-16 (1884) (false statements concerning purchase
of insured property were material to extent they related
to whether insured actually had insurable interest in
property); Wagnon v. State Farm Fire & Cas. Co., 146 F.3d
764, 769 (10th Cir. 1998) (same); cf. Level 3 Communications,
Inc. v. Fed. Ins. Co., 272 F.3d 908, 911 (7th Cir. 2001) (insured
incurs no loss for which it is entitled to compensation
when it is compelled to return property that was stolen).
F. Admission of Mr. Jackson’s prior conviction
Joe Jackson testified in his own defense. Pursuant to
Federal Rule of Evidence 609(a)(1), the district court
permitted the government to introduce evidence that in
1996 he had been convicted of receiving stolen property.1
At the time of the trial, the conviction was just a few
weeks shy of being ten years old. Had the conviction
been more than ten years old, of course, it would have
been presumptively inadmissible under subsection (b) of
Rule 609 absent a finding by the district court that its
probative worth substantially outweighed its potential
for prejudice so as to warrant its admission in the interest
of justice. See, e.g., United States v. Rogers, — F.3d —,
2008 WL 4072542, at *3 (7th Cir. Sept. 4, 2008). But the
conviction was not yet ten years old, and so there was
no presumption against its admission. The district judge,
1
After the court overruled Joe Jackson’s objection to this
evidence, his counsel elicited this information himself on
direct examination.
Nos. 07-1449 & 07-1577 33
weighing each of the pertinent factors identified by this
court in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.
1976) (citing Gordon v. United States, 383 F.2d 936, 940 (D.C.
Cir. 1967) (Burger, J.)), found that the probative worth of
the conviction vis-à-vis Mr. Jackson’s truthfulness ex-
ceeded its potential for prejudice. Tr. 597-99. Joe contends
that the court abused its discretion in permitting the
evidence over his objection, given the age of the conviction
and the likelihood that the jury may have surmised from
the conviction that he was the probable perpetrator of the
credit card fraud in the purchase of custom tires and rims
from Performance Plus. Once again, we review the
district court’s decision for abuse of discretion. United
States v. Hernandez, 106 F.3d 737, 740 (7th Cir. 1997).
The court did not abuse its discretion in allowing this
evidence. Although the conviction was close to ten years
old, it was not yet at that mark and consequently under
the terms of Rule 609 there was no presumption against
its admission. Any perception of arbitrariness in that
regard is the inevitable result of a rule that conditions the
admissibility of evidence on its age. As it was, the court
weighed the age of Joe’s conviction as a factor against
admission. Tr. 598. As for the probative value of the
conviction, the court reasonably concluded it reflected
conduct that did bear on Joe ‘s truthfulness, see Varhol v.
Nat’l R.R. Passenger Corp., 909 F.2d 1557, 1567 (7th Cir.
1990) (en banc) (receipt and use of stolen property suffi-
ciently probative of witness’s credibility to permit cross-
examination about such conduct pursuant to Rule 608(b)),
although the crime of receiving stolen property is not a
crime of dishonesty per se, see id. The court also noted that
34 Nos. 07-1449 & 07-1577
the nature of the charges rendered Joe‘s intent and state
of mind central issues in the case; and his credibility as a
witness would be a key factor in assessing his testimony as
to those issues. We have no reason to question that assess-
ment, and although we agree with Joe that the evidence
held some potential to prejudice him, we cannot say that
the possibility was so strong as to compel the exclusion of
this evidence. In that regard, we note that the district court
gave the standard instruction admonishing jurors that
they were to consider the conviction solely in evaluating
Joe Jackson’s truthfulness as a witness and for no other
purpose. Tr. 699-700. That instruction, which we presume
that the jury followed, e.g., United States v. Jackson, 540
F.3d 578, 598 (7th Cir. 2008), mitigated the prejudicial
impact of the testimony concerning the conviction, United
States v. Montgomery, 390 F.3d 1013, 1016 (7th Cir. 2004)
(citing United States v. Nururdin, 8 F.3d 1187, 1192 (7th
Cir. 1993)).
G. Mr. Jackson’s Rule 33 Motion for New Trial
Pursuant to Federal Rule of Criminal Procedure 33(b)(1),
Joe asked the district court to grant him a new trial based
on newly discovered evidence. The evidence in question
related to Count Six of the indictment. That count, as we
have discussed, related to the claim that Angela Jackson
submitted for electronic equipment that had been stolen
from the 1999 GMC Suburban—namely, a video player
and multiple television display screens for the use
of passengers. In support of that claim, Joe had sub-
mitted two different receipts from Elmo’s Stereo Center in
Nos. 07-1449 & 07-1577 35
South Bend: the first, which became Government Exhibit
14A, reflecting the purchase of four television screens on
May 15, 2003 for $4,004, and the second, which became
Government Exhibit 14B, reflecting the purchase of a DVD
player and related equipment on October 29, 2002,
for $3,280.
It was the testimony concerning Exhibit 14B on which
Joe would later focus his motion for a new trial. At trial,
Alan Vernasco, the owner of Elmo’s, testified that he
had not sold the DVD player and other equipment listed
on the receipt to Angela Jackson. Vernasco said that he
had searched his records and could find no evidence of
such a sale. He explained that the receipt the Jacksons had
tendered was just an estimate prepared after the theft on
the basis of the Jacksons’ representations to him about
what they had purportedly purchased. Following his
conviction, Joe contacted Gates Chevrolet to inquire
whether it had any record of a purchase from Elmo’s on
the Jacksons’ behalf. Gates’s comptroller would later
prepare a letter and declaration to the effect that
although Gates could not locate a copy of an invoice
from Elmo’s, it had discovered evidence confirming a
purchase by Gates in the amount of $3,280 from Elmo’s in
January 2003 on the Jacksons’ behalf for a 1995 Chevrolet
Blazer.2 (We shall have more to say about the Blazer in a
2
The comptroller referred to the vehicle as a Chevrolet
“[p]ickup” rather than a Blazer (R. 127, Murray Affidavit ¶ 4),
but there appears to be no dispute that he was referring to
a Blazer SUV.
36 Nos. 07-1449 & 07-1577
moment.) During the trial, J. R. Prenkert, the Gates Chevro-
let body shop manager, had conceded the possibility that
the replacement electronic equipment purchased for the
Blazer could have been installed on the 1999 GMC Subur-
ban instead. Jackson contended that the belatedly-discov-
ered proof of Gates’ $3,280 purchase from Elmo’s gave lie
to Vernasco’s insistence that no such purchase had been
made: either his records were incomplete, or he had only
searched for proof of a sale to Angela Jackson directly
rather than to (or through) Gates Chevrolet.
The district court agreed that this was newly discov-
ered evidence, that Joe could not have discovered it
previously, and that it was material in the sense that the
jury could have concluded that the Elmo’s receipt or
estimate the Jacksons had submitted to AAA reflected
the actual purchase of the equipment listed. R. 146 at 12-13.
Still, the court was unconvinced that the evidence likely
would have made a difference to the outcome of the trial.
Id. at 13-14. The court reasoned that the evidence related
only to a discrete piece of the government’s case against
Joe and did nothing to undermine the abundant other
evidence of his guilt. Id.
We review the court’s ruling on the motion for abuse
of discretion, United States v. Gillaum, 372 F.3d 848, 857 (7th
Cir. 2004), and we have no reason to quarrel with the
court’s assessment that the new evidence would not have
made a difference to the outcome of the trial. The evidence
related to one count, and to only one of the two receipts
underlying the mail fraud charge in that count. Joe has
given us no reason to believe that even if the jury was
Nos. 07-1449 & 07-1577 37
persuaded that Exhibit 14B reflected an actual purchase,
contrary to Vernasco’s testimony, that it likely would
have acquitted him on Count Six, let alone any other
charge.
And the notion that the Gates evidence proved the
authenticity of Exhibit 14B as proof of what was stolen
from the 1999 GMC Suburban requires a series of leaps
that Joe has failed to address in his brief. As the Gates
comptroller’s letter and affidavit reveal, the $3,280 worth
of equipment that Gates obtained from Elmo’s was pur-
chased not for the 1999 GMC Suburban, but the 1995
Chevrolet Blazer. It turns out that in October 2002, the
Jacksons had had the Blazer towed to Gates Chevrolet
in order to repair damage that occurred incurred in a hit-
and-run collision in front of their home. While the
pickup was stored in the Gates lot, it was broken into
and the electronic equipment inside (including a CD/DVD
player and television display screens) was stolen. That
theft led to the order of replacement equipment from
Elmo’s through Gates. Prenkert, as we have noted, con-
ceded that this equipment could have been installed in
the Suburban instead of the Blazer, although he could not
recall whether this is what had occurred. So the evidence
requires the leap that specialty electronic equipment
ordered for the Chevrolet Blazer either was installed in
the Suburban instead or was later transferred from the
Blazer to the Suburban. More importantly, perhaps, it
would have required the jury to consider the evidence
concerning the Blazer solely for its exculpatory worth vis-
à-vis Exhibit 14B and to ignore the inculpatory inferences
that could be drawn from the facts surrounding the
Blazer. This was the second incident in which someone
38 Nos. 07-1449 & 07-1577
had broken into one of the Jacksons’ automobiles
following an accident, and it was the fourth incident in
which the Jacksons were seeking reimbursement for
expensive electronic equipment that purportedly had been
stolen from or along with their vehicle. A jury possibly
could have thought that the Jacksons, having had four
vehicles stolen or broken into within a three-year period,
were among the most unlucky automobile owners in
South Bend; but the jury might also have concluded that
this fourth incident bore too many similarities to the
other three to be coincidental. Indeed, after the defense
had briefly raised the Blazer in cross-examining Prenkert
at trial, the government itself had sought leave to intro-
duce evidence concerning the 1995 Blazer as further
proof of the fraudulent scheme, which the district court
had disallowed. The court might well have reconsidered
that ruling and allowed all of the details concerning the
collision and break-in into evidence if the defense had
more fully developed the theory that the electronic equip-
ment stolen from the 1999 GMC Suburban originally had
been purchased by Gates for the 1995 Chevrolet Blazer. It
is far from clear that this would have been a net gain
for Joe Jackson’s defense.
III.
For the foregoing reasons, we find the evidence suf-
ficient to support the convictions of Essie and Joe Jackson
and discern no error that required a new trial. We
therefore A FFIRM their convictions.
10-14-08