United States v. Green

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 09-3098, 09-3482 & 09-3681

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

JAMES G REEN, JOSEPH M ILLER, AND
A LONZO B RAZIEL,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-00107—Elaine E. Bucklo, Judge.

A RGUED M ARCH 29, 2011—D ECIDED A UGUST 9, 2011

Before R OVNER, W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Appellants Alonzo Braziel,
Joseph Miller, and James Green were found guilty of
participating in a fraudulent scheme to obtain mortgage
loans by providing false information to lenders. The
scheme involved a complex web of players: Recruiters
enlisted buyers to buy properties with fraudulently
obtained mortgage funds. Financiers provided funds to
2 Nos. 09-3098, 09-3482 & 09-3681

the buyers to facilitate the transactions. Administrators
bought fake documents to enable the buyers to obtain
mortgages. Loan officers prepared fraudulent mortgage
applications and sent them to the lenders. Between 2003
and 2005, the group acquired over seventy properties
in the Chicago area for which lenders provided
$7.2 million in loans. Most of the properties went into
foreclosure when the buyers could not make the
mortgage payments, resulting in losses to the lenders
of $2.2 million.
On February 5, 2008, a grand jury indicted Braziel,
Miller, Green, and fifteen others for mail fraud and wire
fraud in violation of 18 U.S.C. §§ 1341 and 1343. Braziel
and Miller were tried with two of their co-defendants. A
jury convicted Braziel of three counts of mail fraud and
Miller of three counts of wire fraud and three counts
of mail fraud. Defendant Green was tried separately
and was found guilty of three counts of wire fraud. The
defendants now challenge various aspects of their con-
victions and sentences in these consolidated appeals.
We consider the issues for each defendant, and we
affirm all of their convictions and sentences.

I. Alonzo Braziel
Alonzo Braziel first became involved in the scheme
in 2004 as a buyer applying for mortgage loans at the
direction of others. The indictment charged that Braziel
participated in fraud surrounding the purchases of
three residential properties in the Chicago area located at
1430 Portland Avenue, 14820-22 South Hoyne Street, and
7321 South Evans Avenue.
Nos. 09-3098, 09-3482 & 09-3681 3

Braziel raises two issues on appeal. He argues that the
district court erred by admitting a statement made
by one of his co-defendants in which Braziel was impli-
cated, in violation of Bruton v. United States, 391 U.S.
123 (1968). Second, Braziel asserts that the district court
should not have applied a two-level sophisticated
means enhancement in calculating his guideline sentence.

A. The Bruton Issue
In Bruton v. United States, the Supreme Court held that
a defendant’s Sixth Amendment right to confront wit-
nesses against him is violated when the confession of a
nontestifying co-defendant implicating the defendant as
a participant in the crime is admitted in a joint trial of
both defendants. 391 U.S. at 137. A Bruton violation may
be avoided, however, by redacting the reference to the
defendant and substituting a generic reference such as
“another person” or “another member of the group.” The
issue here is whether the redaction used by the govern-
ment, substituting for Braziel’s name the words “straw
buyer,” was sufficient to solve the Confrontation Clause
problem. Braziel argues that, despite the redaction, the
“straw buyer” reference still pointed to him as a partici-
pant in the crime. Although this is a close case, we con-
clude that the use of the edited statement with the
“straw buyer” reference did not violate Bruton here.

1. The Co-Defendant’s Statement
The government sought a pretrial ruling on the admissi-
bility of statements made by Braziel’s co-defendants,
4 Nos. 09-3098, 09-3482 & 09-3681

as well as an order to limit defense counsel from eliciting
portions of these statements that would give rise to a
violation of Bruton. The motion stated that the govern-
ment would call as a witness FBI Special Agent Donald
Kaiser who would relate co-defendant Donald Thomas’
confession. Thomas, also on trial with Braziel and
Miller, would not testify and thus would not be subject
to cross-examination on the statement. The motion sum-
marized the statement that the government would
elicit from Special Agent Kaiser. It included a description
of the property transaction, but it did not mention that
Braziel was incriminated in that section, nor did it
provide any description of the redaction that the gov-
ernment intended to use.
The day before Special Agent Kaiser’s testimony at trial,
the government discussed with defense counsel and
the court how it had redacted Thomas’ statement to
conceal Braziel’s identity. The prosecutors noted that
the original statement referred to Braziel as the pur-
chaser of 14820-22 South Hoyne Avenue, but they had
replaced his name with the term “straw buyer.” Braziel’s
counsel made no objection at that time. At trial the next
day, Special Agent Kaiser offered his testimony:
Q: Did Donald Thomas tell you about getting money
for any particular properties?
A: Yes, he told me that he received $20,000 for the
sale of 14822 South Hoyne in Harvey.
Q: Did he tell you anything else about that transac-
tion?
Nos. 09-3098, 09-3482 & 09-3681 5

A: Yes. Mr. Thomas explained to me that he had
found a straw buyer, his term, for that property,
and he explained the arrangement he had with
that straw buyer. Specifically, he stated that the
agreement was the straw buyer would purchase
the property and then deed the property back to
Mr. Thomas. Mr. Thomas would, had agreed
to then purchase the property from that straw
buyer several months later, and in that time
frame Mr. Thomas was supposed to make the
mortgage payments until he was able to repur-
chase that property.
Q: Did Donald Thomas say whether he had paid the
straw buyer?
A: Yes, he indicated that he had agreed to and that
he actually did pay that straw buyer $5,000 for the
purchase of that property.
Several minutes later, Braziel’s counsel objected and
requested a mistrial, claiming that the jury could identify
Braziel as the straw buyer, so that admitting Thomas’
incriminating statement without the opportunity to cross-
examine him violated Braziel’s Confrontation Clause
rights under Bruton.1

1
The government asserts that Braziel forfeited any objection
to the use of the statement when he did not object on two
occasions before trial when it was discussed, nor did he im-
mediately object when the statement came in at trial. We defer
to the district court’s discretionary judgment, however, that
(continued...)
6 Nos. 09-3098, 09-3482 & 09-3681

Although the Thomas statement was redacted, the jury
heard other witnesses read mortgage and bank records
naming Braziel as the purchaser of 14820-22 South
Hoyne Avenue. Heather McCartney, an employee of
lender Fremont Investment & Loan, read the following
from a real estate contract in Fremont’s loan application
for the South Hoyne property as part of her testimony:
Q: Who is the buyer?
A: Alonzo Braziel.
Q: What is the street address of the property at issue?
A: 14820 and 22 South Hoyne, Harvey, Illinois 60426.
A few minutes before Special Agent Kaiser read from
Thomas’ statement, he had testified about bank records
he had reviewed as part of his investigation:
A. The first real estate transaction is 14822 Hoyne
Avenue in Harvey, and that transaction closed
or funded on 12/20/2004. The seller was the
Marquette Bank Trust 16575, and the [buyer] was
Alonzo Braziel.2

1
(...continued)
Braziel sufficiently preserved his objection by raising it shortly
after the introduction of the statement during Special Agent
Kaiser’s testimony.
2
We have inserted “[buyer]” where the trial transcript says
“lawyer.” The summary chart from which Special Agent Kaiser
was reading names Braziel as the buyer. In context it is clear
that Special Agent Kaiser must have said “buyer.”
Nos. 09-3098, 09-3482 & 09-3681 7

Putting these pieces together, the jury could have
inferred that Braziel was the straw buyer to whom
Thomas referred.
The court deferred ruling on Braziel’s mistrial motion
until later that day when it reviewed the transcript from
the conference the day before. Acknowledging some
potential confusion in their prior discussion, the court
then denied the mistrial motion. Braziel renewed his
motion at the close of the trial, and the court again
denied the motion.

2. Analysis
On appeal, Braziel maintains that the district court
erred by denying his motion for a mistrial. We review the
district court’s denial for an abuse of discretion, United
States v. Tanner, 628 F.3d 890, 898 (7th Cir. 2010), but
we begin by reviewing the court’s application of Bruton
de novo. See United States v. McGowan, 590 F.3d 446, 453
(7th Cir. 2009); United States v. Nash, 482 F.3d 1209, 1218
(10th Cir. 2007).
After the Supreme Court’s further refinement of Bruton
in Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v.
Maryland, 523 U.S. 185 (1998), it is clear that a redacted
confession of a nontestifying co-defendant may be ad-
mitted as long as the redaction does not “obviously”
refer to the defendant. This determination, focusing on
the minutiae of the substituted word or phrase and sur-
rounding context, is not always easy to make. See Gray,
523 U.S. at 195-96. A district court’s evaluation be-
8 Nos. 09-3098, 09-3482 & 09-3681

comes especially difficult when the defendant’s identity
can be established through other evidence offered at trial,
as here. Statements that “despite redaction, obviously
refer directly to someone, often obviously the defendant,
and which involve inferences that a jury ordinarily
could make immediately” are prohibited under Bruton.
Id. at 196; see also United States v. Brooks, 125 F.3d 484,
501 (7th Cir. 1997) (describing the Richardson Court’s
distinction between “specific testimony” identifying
the defendant and an “inferential incrimination”). This
case falls close to that subtle line.
We have navigated these murky waters in several of
our prior cases. In United States v. Stockheimer, 157 F.3d
1082, 1086-87 (7th Cir. 1998), we found no Bruton viola-
tion where the altered statement did not incriminate
the nontestifying defendants by itself. In that case, the
government used an open-ended reference (“inner cir-
cle”) that avoided a one-to-one correspondence be-
tween the statement and the defendant, even if other
evidence at trial incriminated the defendants as those
members of the inner circle. See also United States v.
Souffront, 338 F.3d 809, 829 (7th Cir. 2003) (finding
no Bruton violation where there was no one-to-one cor-
respondence between the redacted statement and the
defendant). In contrast, a more obvious one-to-one cor-
respondence such as an alias or pseudonym is too trans-
parent to pass muster. For example, in United States
v. Hoover, 246 F.3d 1054, 1059 (7th Cir. 2001), we con-
cluded that substituting “incarcerated leader” and
“unincarcerated leader” for the names of the two defen-
dants did not solve the Bruton problems because
Nos. 09-3098, 09-3482 & 09-3681 9

those were “obvious stand-ins” for the names of the
defendants. The jury in that case heard that one of the
two leaders of the gang operated the gang’s activities
from state prison, while another served as acting leader
on the outside. The Hoover court found that “incarcerated
leader” and “unincarcerated leader” functioned the
same way “deleted” or another similarly obvious indica-
tion of alteration would. 246 F.3d at 1059. Those terms “so
closely resemble Bruton’s unredacted statements that . . .
the law must require the same result.” Id., quoting Gray,
523 U.S. at 192. As a general matter, we have recognized
that such a delicate determination requires case-by-case
consideration rather than a brightline rule. See id. (noting
that “little evidence is incriminating when viewed in
isolation” and that to adopt a “four-corners rule” would
defeat the point of Bruton).
Here, we do not find the use of “straw buyer” in the
Thomas confession to be so obvious a reference to
Braziel as to violate Bruton. First, unlike an alias or a
pseudonym used to disguise a single individual, “straw
buyer” is more similar to an anonymous reference such
as “another person” or “an individual.” We agree with
Braziel that “straw buyer” is not neutral insofar as it
connotes some illicit activity, but the substituted word
or phrase need not be neutral. In context, the Thomas
statement was describing a transaction with a straw
buyer, so using the phrase was not much different from
using “the buyer” or “the person.” The statement was
highly incriminating to Thomas, but his statement was
not used to show that Braziel was the buyer. Most im-
portant for our analysis, the use of “straw buyer” did not
10 Nos. 09-3098, 09-3482 & 09-3681

facially incriminate Braziel as clearly as the terms “incar-
cerated leader” and “unincarcerated leader” did in Hoo-
ver. The “straw buyer” term could refer to anyone. Taken
alone, nothing in Thomas’ statement as told by Special
Agent Kaiser suggests that Braziel was the straw buyer.
Second, although a reasonable jury member could have
concluded that Braziel was the straw buyer to which
Thomas referred by comparing other evidence pre-
sented at trial, the evidence required to make that con-
nection was farther removed from the redacted state-
ment than the clear correspondences present in Gray
and Hoover. The Supreme Court has distinguished this
type of acceptable indirect inference from an unac-
ceptable immediate inference. See Gray, 523 U.S. at 195-96;
Richardson, 481 U.S. at 208 (reiterating that only those
statements that “expressly implicate” the defendant or
are “powerfully incriminating” trigger Bruton). Though
the case came very close to the Bruton line, the dis-
trict court did not run afoul of Bruton by admitting
the statement and did not abuse its discretion by
denying a mistrial.

B. Sophisticated Means
At sentencing, Braziel objected to the two-level upward
adjustment for sophisticated means recommended
by the presentence investigation report. See U.S.S.G.
§ 2B1.1(b)(9)(C). The district court rejected Braziel’s
arguments, applied the adjustment, and imposed a within-
guidelines sentence of 40 months in prison on each of
Nos. 09-3098, 09-3482 & 09-3681 11

his three counts of mail fraud. The court stated that it
was applying the sophisticated means enhancement to
Braziel, as it had to every other defendant involved in
the scheme, because “the whole scheme was sophisti-
cated.” We review the district court’s finding for clear
error. United States v. Wayland, 549 F.3d 526, 528 (7th Cir.
2008).
Braziel argues on appeal that the district court erred by
applying the enhancement to him on the basis of the
sophistication of the general scheme rather than his
activities in particular. This argument is not consistent
with the guidelines definition of relevant conduct. See
U.S.S.G. § 1B1.3(a)(1)(B). Under the guideline rule for
“relevant conduct,” Braziel is responsible for “all rea-
sonably foreseeable acts and omissions of others in fur-
therance of the jointly undertaken criminal activity,” even
if not charged as a conspiracy. Id. Therefore, a sophisti-
cated means enhancement could be applied to Braziel so
long as the use of sophisticated means by other crim-
inal associates was reasonably foreseeable to him. See
United States v. Cosgrove, 637 F.3d 646, 666 (6th Cir. 2011)
(affirming use of enhancement based on activities of
others); United States v. Jenkins-Watts, 574 F.3d 950, 965
(5th Cir. 2009) (same).
The district court did not err by finding this whole
scheme to be sophisticated. The application note
defines “sophisticated means” as “especially complex or
especially intricate offense conduct pertaining to the
execution or concealment of an offense.” U.S.S.G. § 2B1.1,
note 8(B). We have upheld the use of the enhancement
12 Nos. 09-3098, 09-3482 & 09-3681

“when the conduct shows a greater level of planning or
concealment than a typical fraud of its kind.” United States
v. Landwer, 640 F.3d 769, 771 (7th Cir. 2011), quoting United
States v. Knox, 624 F.3d 865, 871 (7th Cir. 2010). The com-
mentary provides several examples of such conduct,
illustrating the wide variety of criminal behavior cov-
ered by the theft and fraud guideline. See also Wayland,
549 F.3d at 528 (elaborating on the meaning of the com-
mentary). Here, the defendants’ overall scheme lasted
three years and involved numerous complex fraudulent
transactions, the creation of fake documents, and the
participation of nearly twenty individuals. The district
court did not err in deeming it sophisticated.
Nor did the district court err by applying the enhance-
ment on the basis of its finding that the whole scheme
was sophisticated. The evidence showed that Braziel
spoke with his co-defendants about several aspects of
the general scheme — from the falsifications of rent and
employment records to the concealment of financial
transfers among the participants. On the basis of this
evidence, the conspiracy’s sophisticated criminal conduct
was reasonably foreseeable to him. We affirm Braziel’s
sentence.

II. Joseph Miller
The government charged Joseph Miller with three
counts of wire fraud and three counts of mail fraud, each
related to a separate property transaction for which he
acted as the loan officer. From 2001 to 2006, Miller
served as a loan officer for the mortgage broker Integrity
Nos. 09-3098, 09-3482 & 09-3681 13

Home Mortgage, a name that seems a little ironic under
the circumstances. In that position, he was responsible
for compiling loan documentation on behalf of borrowers
and submitting those materials to lenders. According
to testimony at trial, Miller served as the loan officer
for multiple home purchases arranged by co-defendants
Jonathon Marchetti, Alfredo Hilado, and Larry Skrobot.
In each of these transactions, Marchetti set up the sale
by recruiting Hilado to serve as the buyer and sending
him to Miller to obtain a loan. Skrobot provided the
necessary financing for Hilado to make the purchase
while Miller prepared the documentation and secured
the mortgage for Hilado.
Miller makes two arguments on appeal. First, he con-
tends that the evidence against him was not sufficient to
prove his guilt beyond a reasonable doubt because testi-
mony offered by two of his co-defendants was unreli-
able. Second, Miller claims that the district court erred
by finding that he was involved in a single conspiracy.
We disagree on both issues and affirm Miller’s conviction.

A. Sufficient Evidence
A defendant challenging the sufficiency of the evi-
dence against him must show “that no reasonable jury
could have found his guilt beyond a reasonable doubt.”
United States v. Tavarez, 626 F.3d 902, 906 (7th Cir. 2010).
Under this already high standard, we consider the evi-
dence in the light most favorable to the government.
United States v. Huddleston, 593 F.3d 596, 601 (7th Cir.
2010). If any rational trier of fact could have found the
14 Nos. 09-3098, 09-3482 & 09-3681

essential elements of the crime beyond a reasonable
doubt, we will uphold the conviction. United States v.
Durham, ___ F.3d ___, ___, 2011 WL 2535801, at *5 (7th Cir.
June 28, 2011).
As a preliminary matter, we note that while Miller
makes general claims about the insufficiency of the evi-
dence against him, he discusses only the evidence re-
garding his participation in wire fraud. By not developing
any argument regarding the sufficiency of evidence to
support his mail fraud conviction, he waives that argu-
ment on appeal. See United States v. Collins, 604 F.3d 481,
487 n.2 (7th Cir. 2010). We address only Miller’s wire
fraud convictions and conclude that the jury could rea-
sonably have reached its guilty verdict on the evidence
presented. To establish wire fraud, the government
must prove (1) that the defendant participated in a
scheme to defraud; (2) with the intent to defraud; (3) and
used interstate wire communications in furtherance of
the fraud. See United States v. Howard, 619 F.3d 723, 727
(7th Cir. 2010). Miller concedes that the two primary
witnesses against him — Marchetti and Hilado — testified
that he directed them to submit false documents to
him that he then forwarded to the lenders. Marchetti
testified that he began working with Miller in 2004. He
regularly used Miller as a loan officer in his Chicago-area
property transactions, three of which were the subject
of the wire fraud charges against Miller: 1920 Circle
Court; 24 East 23rd Street; and 594 Andover Drive.
Marchetti stated that Miller filled out false “seller sec-
ond” mortgage forms for the properties at 24 East 23rd
Nos. 09-3098, 09-3482 & 09-3681 15

Street and 594 Andover Drive and that the two discussed
creating false construction receipts for the Andover Drive
property, as well.3
Hilado also testified that Miller was the loan officer
for eleven properties he managed. The jury heard that
Miller told Hilado to come up with names of people
who would lease from Hilado at both the East 23rd Street
property and the Circle Court property, even though
Miller knew that he did not plan to have any tenants,
to make the loans look more secure. These false lease
forms as well as the false seller second forms were ad-
mitted into evidence. The government also provided
evidence that Miller’s income from commissions on
loans he administered rose from $38,500 in 2002 to
$49,000 in 2004, to $82,000 in 2005.
The gist of Miller’s contention is that Marchetti’s
and Hilado’s testimony cannot support proof of his guilt
beyond a reasonable doubt because they were unreliable
as witnesses. This argument invites us to disregard
the standard of review and to substitute our judgment
for that of the jury. We do not weigh the evidence on
review or second-guess the jury’s credibility determina-
tions. See id. at 726; Tavarez, 626 F.3d at 906; United
States v. Anderson, 580 F.3d 639, 646 (7th Cir. 2009) (ac-
knowledging that this court has repeatedly refused to
question the credibility of witnesses when reviewing
challenges to sufficiency of the evidence). We overturn

3
“Seller second” mortgages are junior mortgage loans, sub-
ordinate to a first mortgage on a property, taken by the buyer
from the seller. See Black’s Law Dictionary 1103 (9th ed. 2009).
16 Nos. 09-3098, 09-3482 & 09-3681

a conviction based on a credibility determination only
if the witnesses’ testimony was incredible as a matter of
law, see United States v. Carraway, 612 F.3d 642, 645 (7th
Cir. 2010), a high standard not met by the testimony
here. The jury, aware of Marchetti’s and Hilado’s status
as cooperating co-defendants and properly instructed to
consider their testimony with great care, nevertheless
credited the testimony they offered. We see no reason
to disturb that determination.
Though the evidence against Miller was not over-
whelming, his conviction is supported by witness testi-
mony, the documentary evidence, and the reasonable
inferences drawn from all of that evidence. His insuffi-
ciency of the evidence argument fails.

B. Single Conspiracy Determination
Miller also argues that the district court mistook several
distinct conspiracies for a single conspiracy. Although
Miller was not charged with a conspiracy, the court
allowed the government to introduce statements made
by co-conspirators based on a single conspiracy theory.
We review the district court’s single conspiracy deter-
mination for clear error, viewing the evidence in the
light most favorable to the government. See United States
v. Ceballos, 302 F.3d 679, 688 (7th Cir. 2002).
A single conspiracy exists if “the co-conspirators
joined to effectuate a common design or purpose,” id.,
with the focus of the court’s inquiry on that common
purpose. The government must demonstrate that the
Nos. 09-3098, 09-3482 & 09-3681 17

defendant joined the agreement alleged, not just the
group. See United States v. Longstreet, 567 F.3d 911, 919 (7th
Cir. 2009). So long as the co-conspirators embraced a
common criminal objective, a single conspiracy existed
even if a participant did not know all of his co-conspirators
and did not participate in every aspect of the scheme.
United States v. Mojica, 185 F.3d 780, 786-87 (7th Cir. 1999).
The evidence here was consistent with a single conspir-
acy theory. It showed an agreement to carry out a plan
designed to generate income to the individuals involved
by means of fraud. Over three years and the dozens of
sales they completed, the schemers embraced this
common goal, carrying out their different roles and
responsibilities. Evidence of frequent and repeated trans-
actions can support a single conspiracy theory. Cf. United
States v. Blanding, 53 F.3d 773, 780 (7th Cir. 1995). The
cohorts’ cooperation and coordination also indicate the
same. See United States v. Handlin, 366 F.3d 584, 590 (7th
Cir. 2004) (trust, cooperation, and delineation of duties
among participants in a common scheme “overcomes
any doubt that this was anything other than a single,
broad conspiracy”). Miller was a key player in at
least six transactions, each of which furthered the
broader scheme. Because the district court did not err in
its single-conspiracy determination, this challenge to
Miller’s conviction also fails.

III. James Green
The government charged defendant James Green
with four counts of wire fraud. Like Braziel, Green was
18 Nos. 09-3098, 09-3482 & 09-3681

a buyer. His cousin, co-defendant Joseph Green, recruited
Green to purchase properties in exchange for cash.4
Throughout the trial, Green argued that he was a victim
of the fraudulent scheme, left holding the bag as the
purchaser of properties that were supposed to be rehab-
ilitated but were not. Green now raises five issues re-
garding his conviction. He also argues that the district
court erred by sentencing him based on an improper
loss calculation. We address each issue in turn.

A. Admissibility of Business Records
Green appeals the district court’s admission of certain
loan documents under Federal Rule of Evidence 902(11).
Rule 902(11) streamlines the admission of certain inher-
ently reliable documents by allowing a party to intro-
duce a record of regularly conducted activity without
live testimony from a records custodian so long as the
record is accompanied by a proper written certifica-
tion from a custodian or otherwise qualified person. See
Fed. R. Evid. 902(11). The Rule requires that the record
be admissible under Rule 803(6), which creates a
hearsay exception for business records and reports
“unless the source of information or the method or cir-
cumstances of preparation indicate lack of trustworthi-
ness.” Fed. R. Evid. 803(6).
In advance of trial, the government filed notice of its
intent to offer evidence pursuant to Rule 902(11). Green

4
We refer to defendant James Green as Green and when
necessary refer to his cousin as Joseph Green.
Nos. 09-3098, 09-3482 & 09-3681 19

and his co-defendants objected, claiming that the rec-
ords did not meet the Rule’s requirements. Relevant to
this appeal, they objected to the introduction of records
certified by Charlene Batalla, a former employee of
Equity Express mortgage brokerage firm, who was also
a defendant in the scheme. They argued that Batalla, as
a co-defendant, was not trustworthy as a custodian. In
2008, Batalla pled guilty to falsifying documents in the
defendants’ conspiracy. In 2009, Batalla certified as
records made in the regular course of business the
Equity Express loan files for five Chicago-area properties:
8544 South Givins Court, 1418 Portland Avenue, 155
East 153rd Street, 6851 South Prairie Avenue, and
1436 Parnell Avenue. Defendant Green was charged for
his involvement in the purchases of the first four of
those properties.
At a pretrial conference, the district court reviewed
the certificates and overruled the objection, finding the
certificates to be sufficient under Rule 902(11). After
severance, Green renewed his trustworthiness objection
to the Batalla certification. At a second pretrial con-
ference, Green’s counsel further argued that he had a
right to cross-examine Batalla about “the fact that
James Green didn’t put any of this information on these
papers.” The government replied that if Batalla were to
testify, she would answer only three questions — “Were
these documents created in the ordinary course, were
they maintained, and were they created at or near
the time of the documents?” — and that anything else
regarding the documents would be outside the scope
of her testimony. The district court again overruled the
20 Nos. 09-3098, 09-3482 & 09-3681

objection and admitted the documents and certification.
Despite all this attention to the certification and attached
loan files, they were hardly used at trial. The govern-
ment moved the files into evidence at the start of trial
but never referred to them.
Rule 902(11) is a powerful and efficient short-cut, but
it includes important built-in safeguards that cannot be
taken lightly. Those safeguards include providing op-
posing counsel with advance notice of any Rule 902(11)
certifications to give that party “a fair opportunity to
challenge” the certifications, which could involve
calling the certificate’s signer to testify as Green de-
manded here. See Fed. R. Evid. 902(11); see also United
States v. Adefehinti, 510 F.3d 319, 327-28 (D.C. Cir. 2008)
(amended opinion). We have noted that in some circum-
stances a Rule 902(11) certification will not implicate
a defendant’s Confrontation Clause rights because the
certificate itself is not testimonial. See United States
v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006). But the Rule
does not give a party license to dump business records
into evidence without giving an adverse party an oppor-
tunity to question the certificate’s signer where such
questioning may be warranted. See Adefehinti, 510 F.3d
at 328 (commenting that “[i]n an appropriate case,” the
Rule’s “opportunity to challenge” may include cross-
examination, while also noting that the Rule 902(11)
certificate does not fall within the guarantee provided by
the Confrontation Clause). The government was treading
on dangerous ground by using Rule 902(11) here to
introduce not just these but hundreds of other records
to prove the truth of the matters asserted without re-
Nos. 09-3098, 09-3482 & 09-3681 21

gard to the many layers of hearsay and the Confrontation
Clause rights that those records may have implicated.5
In any event, we need not decide whether the district
court erred by admitting evidence based on the Batalla
certification because any such error would have been
harmless. At oral argument, we asked the government
to file a supplemental memorandum identifying the
portions of the record that addressed counsel’s objec-
tions to the Batalla certification, as well as the portions of
the record that corroborate or support the contents of
the Equity Express documents admitted based on her
certification. The parties’ supplemental materials show
that many of the documents within each file were dupli-
cates of business records maintained by other lenders
that were also admitted without objection. The most
relevant loan application materials (the applications
purportedly signed by Green containing false informa-
tion) were also included in other exhibits that came
in through trustworthy certifications to which Green
did not object. Given this overlap and the limited use of
the files, Green has not shown that he was prejudiced
by the Equity Express records certified by Batalla. In
the absence of prejudice, we need not reach Green’s
arguments that Batalla’s certificate of authenticity failed

5
Our caution does not apply when records, especially of
fraudulent activity, are introduced not to prove the truth of the
matters asserted in the records but to show the course of the
transaction or scheme, such as the communication of false
information. Such uses are outside the scope of the definition
of hearsay. Fed. R. Evid. 801(c).
22 Nos. 09-3098, 09-3482 & 09-3681

to meet the requirements of Rules 803(6) and 902(11) or
that its use violated his Sixth Amendment right.

B. Sworn Statements in Loan Applications
Green also contends that certain testimony offered
by witnesses for the government prejudiced him by
misleading the jury about the charges against him. The
jury heard three government witnesses read slight varia-
tions of the following passage from loan applica-
tion materials submitted in connection with Green’s
loans: “Borrower understands that it is a federal crime
punishable by fine or imprisonment or both to knowingly
make any false statement concerning any of the above
facts, as applicable under the provisions of Title 18 USC,
Section 1014. I declare that the foregoing agreement is
true and correct . . . .” At its first mention, defense
counsel requested a limiting instruction directing the
jury that Green had not been charged with violating
Section 1014. After the government responded that it
was offering the evidence to show Green’s knowledge,
the court asked both counsel to review the issue
overnight and raised the possibility of striking the refer-
ence or giving a limiting instruction the following day.
The next morning, prosecutors and defense counsel
agreed on an instruction that the court gave the jury. The
court told the jury that it had “heard some evidence
regarding statements in loan documents about that it’s
unlawful to violate particular statutes. That evidence,
the particular statute actually isn’t at issue here other
than it’s — the government is offering it with respect to
Nos. 09-3098, 09-3482 & 09-3681 23

knowledge and intent.” Similar passages referencing
18 U.S.C. § 1014 were read and referenced again by
two witnesses and by the government during closing
argument.
On appeal, Green argues that the government’s re-
peated references to section 1014 confused the jury.
He contends that, as a result of this testimony, the jury
convicted Green based on statutory violations not
charged. But Green forfeited this argument by not ob-
jecting to the admissibility of the statements when they
were offered. Rather, upon their introduction, Green’s
counsel requested, and the court gave, a limiting instruc-
tion to avoid the very confusion Green claims still perme-
ated his trial.
In light of Green’s forfeiture, we review the introduc-
tion of the testimony for plain error only. United States
v. Jaimes-Jaimes, 406 F.3d 845, 847 (7th Cir. 2005). We
find none. Although the references to another provision
of law perhaps posed some risk of confusing the jury,
the court’s limiting instruction alleviated that risk. The
references were not so prejudicial so as to render the
instruction ineffectual. See United States v. Curry, 538
F.3d 718, 728 (7th Cir. 2008) (noting that we assume a
jury follows an instruction unless the evidence is so
“powerfully incriminating that they cannot reasonably
be expected to put it out of their minds”). Even if Green
had not forfeited his objection, we would have little
trouble agreeing with the district court that the passages
were admissible to help prove that Green knew he was
required to provide true information and knew it was
wrong to provide false information, and finding that
24 Nos. 09-3098, 09-3482 & 09-3681

the limiting instruction was sufficient to protect against
any potential prejudice.

C. Ostrich Instruction
Green next contests the “ostrich” instruction given by
the court at the government’s request. The instruction
explained to the jury members that in their considera-
tion of Green’s knowledge about the fraud, the
legal definition of knowledge includes the deliberate
avoidance of knowledge — “a combination of suspicion
and indifference to the truth.” We review a decision to
give an ostrich instruction for abuse of discretion,
viewing all evidence in the light most favorable to the
government. United States v. Severson, 569 F.3d 683, 689
(7th Cir. 2009).
A district court may give an ostrich instruction “where
(1) a defendant claims to lack guilty knowledge, i.e.,
knowledge of her conduct’s illegality, and (2) the gov-
ernment presents evidence from which a jury could
conclude that the defendant deliberately avoided the
truth.” United States v. Garcia, 580 F.3d 528, 537 (7th Cir.
2009). The purpose of an ostrich instruction is to inform
the jury “that a person may not escape criminal liability
by pleading ignorance if he knows or strongly suspects
he is involved in criminal dealings but deliberately
avoids learning more exact information about the nature
or extent of those dealings.” United States v. Carani, 492
F.3d 867, 873 (7th Cir. 2007), quoting United States v.
Carrillo, 435 F.3d 767, 780 (7th Cir. 2006). In Garcia, we
explained that a case in which a defendant admits his
Nos. 09-3098, 09-3482 & 09-3681 25

association with a group but denies knowledge of its
illegal activity despite circumstantial evidence to the
contrary is a “paradigm case” for use of the instruction.
580 F.3d at 537.
The evidence presented at Green’s trial could be inter-
preted to show exactly that: Green deliberately avoided
determining conclusively that he was engaged in
criminal activity. Green was aware that his co-defendants
had offered to obtain false documents for him and that
they had done so for others in the past. In fact, Green
testified that he questioned his co-defendants about the
legality of what they were doing on several occasions.
This evidence alone, demonstrating knowledge of his
cohorts’ involvement in suspicious activities, warranted
an ostrich instruction. See United States v. Ramirez, 574
F.3d 869, 877 (7th Cir. 2009). Green did more. He also
signed blank loan applications and accompanied his co-
defendants to banks where they would withdraw money
and obtain cashier’s checks in an effort to make it
appear as though Green was presenting his own money
for the properties. He did not inspect the properties
before he bought them, and he never met some of the
individuals who he represented on his loan materials
would be renting the properties. On the basis of this
ample evidence, the district court acted well within its
discretion to provide an ostrich instruction.

D. Cumulative Error
Green asserts that the cumulative effect of the errors
made by the district court deprived him of a fair trial.
26 Nos. 09-3098, 09-3482 & 09-3681

Since we find no error on the part of the district court,
the cumulative error doctrine does not apply.

E. Sufficiency of Evidence
The jury convicted Green of fraud in connection with
the property transactions at 8544 South Givins Court,
1418 Portland Avenue, and 155 East 153rd Street,
and acquitted him of the charge in connection with
6851 South Prairie Avenue. He argues that the govern-
ment failed to prove that he had the intent to defraud
any lender and that therefore he should have been ac-
quitted on all counts. He concedes that he partici-
pated in the scheme and that a wire fraud occurred,
but he contends he was actually a victim of the
scheme — unaware of the illegality of the transactions
and not intending to defraud the lenders. Green’s chal-
lenge fails because the testimony at trial, along with
the documentary evidence, was sufficient for a jury to
find beyond a reasonable doubt that Green engaged in
wire fraud for each of the three properties underlying
his convictions.
Early on, Green worked through his cousin and
recruiter Joseph Green. Joseph Green testified that he
told defendant Green in their earliest conversations
about real estate that Green would be paid for his trans-
actions and that he could get assistance obtaining false
pay stubs and W-2s when necessary. The jury heard that
one of Green’s co-schemers, James Robert Thomas, told
Green that he had to purchase false documents to
qualify for a loan for the South Givins property in early
Nos. 09-3098, 09-3482 & 09-3681 27

2005. James Robert Thomas also told Green that Green
did not have to repay the “seller second” mortgage that
had been arranged for him and that was listed on his
loan application for the South Givins house.
Beginning with the transaction at 1418 Portland
Avenue, Green worked more closely with the financiers
of the scheme rather than through his cousin. James
Robert Thomas testified that he paid Green after the
closings at the Portland property and East 153rd Street
in April and May 2005. At trial, Green himself admitted
that he accepted money for his role as the purchaser of
all three properties without notifying lenders about
these transactions. Further, the jury heard that, at
his cousin’s instruction, Green falsely represented to
lenders that he worked for a company called The Art of
Construction. Viewing this testimony in the light most
favorable to the prosecution, a reasonable fact finder
could have found that Green intended to defraud
lenders through his participation in the scheme.

F. Loss Calculation in Sentencing
Green was sentenced to 37 months in prison based in
part on an aggregate loss amount of $189,500. He con-
tests the district court’s calculation of the loss amount
attributable to him. We review loss calculations for clear
error. See United States v. Powell, 576 F.3d 482, 497 (7th Cir.
2009). We have stated on many occasions that loss calcula-
tions need only be a reasonable estimate of the loss. See
United States v. Borrasi, 639 F.3d 774, 783 (7th Cir. 2011);
U.S.S.G. § 2B1.1, note 3(C) (“The court need only make
28 Nos. 09-3098, 09-3482 & 09-3681

a reasonable estimate of the loss.”). For Green to succeed,
he must show that the court’s loss calculations “were not
only inaccurate but outside the realm of permissible
computations.” United States v. Radziszewski, 474 F.3d
480, 486 (7th Cir. 2007), quoting United States v. Lopez,
222 F.3d 428, 437 (7th Cir. 2000).
At his sentencing hearing, Green introduced evidence
showing that some of the properties involved in the
fraud were sold at public auction and requested that
proceeds from the sales, at which the lenders were the
highest bidders, be credited against the loss. The district
court rejected Green’s calculations. Green re-asserts his
argument on appeal, claiming that the district court
improperly calculated the loss amount by not using
the prices at which the lenders obtained title to the prop-
erties at the public auctions.
Green’s suggested calculation misses the mark. Where
a lender forecloses and acquires the property at public
auction by making a credit bid (i.e., a bid that offers to
cancel the outstanding principal, interest, and related
fees in return for title to the property), the credit bid is
not a reliable measure of the actual market value of the
property. See generally River Road Hotel Partners, LLC v.
Amalgamated Bank, ___ F.3d ___, ___, 2011 WL 2547615,
at *7 (7th Cir. June 28, 2011); In re Philadelphia Newspapers,
LLC, 599 F.3d 298, 320-21 (3d Cir. 2010) (Ambro, J., dis-
senting) (explaining credit bidding in Chapter 11 bank-
Nos. 09-3098, 09-3482 & 09-3681 29

ruptcy context).6 In a typical fraudulent mortgage
scheme, a credit bid is highly likely to overvalue the
property. The whole point of the fraud was to fool the
lender into lending far more than the market value of the
property, and then to disappear, leaving the lender with
a property worth far less than the loan. Using a credit
bid based on the fraudulently inflated loan amount
to measure loss would surely understate the actual loss.
Thus, in this situation, it would have been an error for
the district court to use Green’s proposed method of
calculating loss.
Here, the district court correctly determined the appro-
priate loss amount using the formula we outlined in
United States v. Radziszewski. The court subtracted the
sale price the lender received after it recovered posses-
sion of the property from the amount of its original loan, as
in Radziszewski. See 474 F.3d at 486-87; see also United
States v. Serfling, 504 F.3d 672, 679 (7th Cir. 2007) (up-
holding district court’s loss calculation which subtracted
the price obtained for collateral from the amount of loan
proceeds, and rejecting calculation proposed by defendant
based on fraudulent appraisal); U.S.S.G. § 2B1.1, note
3(E)(ii) (loss shall be reduced by “the amount the victim
has recovered at the time of sentencing from disposi-
tion of the collateral, or if the collateral has not been
disposed of by that time, the fair market value of the
collateral at the time of sentencing”). The district court

6
In River Road Partners, we agreed with Judge Ambro’s
dissent in Philadelphia Newspapers.
30 Nos. 09-3098, 09-3482 & 09-3681

used this method that we have previously upheld for
the same situation and that properly captures the loss
suffered by the lenders. We find no error and uphold
Green’s sentence.

III. Conclusion
The convictions and sentences of defendants Braziel,
Miller, and Green are A FFIRMED.

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