In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1188 & 10-2156
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSEPH R. P ERSFULL and JAMES P ERSFULL,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
Nos. 08 CR 50025-1 and 08 CR 50025-2—Frederick J. Kapala, Judge.
A RGUED A PRIL 12, 2011—D ECIDED O CTOBER 6, 2011
Before K ANNE and E VANS , Circuit Judges, and C LEVERT,
District Judge.
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
The Honorable Charles N. Clevert, Jr., Chief Judge of the
United States District Court for the Eastern District of Wiscon-
sin, sitting by designation.
2 Nos. 10-1188 & 10-2156
C LEVERT, District Judge. The same day that James
Persfull discharged his debts in a Chapter 7 bankruptcy,
his mother, Eileen Persfull, died, leaving James and
his brother, Joseph, equal shares in the estate.1 James
signed a disclaimer of his interest, but never told the
trustee about his inheritance. Following a series of trans-
actions between James, Joseph, and various accounts,
the United States Attorney’s office launched an investiga-
tion, and the brothers were charged with bankruptcy
fraud. James was also charged with impeding a bank-
ruptcy trustee in the course of his duties and fraudulently
concealing assets. Throughout their trial, neither James
nor Joseph disputed the post-bankruptcy financial trans-
actions that led to James’s possession of portions of the
inheritance. Instead, they argued that it was brotherly
love—not a sinister scheme—that led to the transfers.
Following their convictions, James and Joseph appealed.
We affirm.
I. BACKGROUND
On March 14, 2003, James Persfull filed a Chapter 7
Bankruptcy Petition, Schedules of Assets and Liabilities,
and Statement of Financial Affairs. At the initial meeting
of creditors on April 21, 2003, the following exchange
took place between James, his attorney Donald Sullivan,
and the bankruptcy trustee, James Stevens:
1
For the sake of clarity, we will refer to the members of the
Persfull family by their first names.
Nos. 10-1188 & 10-2156 3
Stevens: Are you currently entitled to receive any
type of inheritance at all?
Persfull: No, sir.
Stevens: You understand that if you are notified
within the next six months that you are
entitled to receive an inheritance that your
[sic] are required to notify your attorney
and the Trustee?
Persfull: Yes, sir.
Sullivan: Now, we would point out that his mother
is very ill and he’s explained that to me, and
I’ve also explained that if he does get an
inheritance or an interest in property that
he has to disclose that to my office.
Stevens: Good, good. Alright with that I’ll conclude
your meeting. Thank you.
Two days after that meeting Eileen died testate ap-
pointing James and Joseph to serve as executors with
equal shares in the estate, and Stevens filed a No Asset
Report discharging James’s debts. James, who never
notified Stevens that he was entitled to an inheritance,
signed two documents (1) declining to serve as executor
of his mother’s estate; and (2) disclaiming his interest
in any type of property that he would receive as a
result of his mother’s death. The irrevocable disclaimer
stated that it had been delivered to Joseph.
Over a year and a half later, Stevens learned that James
may have an interest in two parcels of real estate and was
4 Nos. 10-1188 & 10-2156
entitled to an inheritance. Stevens reopened the bank-
ruptcy on January 19, 2005, and was reappointed trustee
before meeting with James and his attorney on February 1.
When asked whether he had brought a mortgage
current or paid it off, James admitted that he received
two loans from Joseph—one for approximately $28,000
and the other which allowed him to retire the mortgage
on his Briar Cliff residence. However, later in the con-
versation James told Stevens to check with Joseph
about the source of the money because he wasn’t sure if
it was a loan or had something to do with his inheritance.
For the first time, James mentioned that his mother
had died, but he denied knowing anything about his
mother’s estate.
After obtaining copies of the will, declination, and the
disclaimer, Stevens requested that James quit claim his
interest in the Briar Cliff residence to Stevens as trustee.
James never complied with this request or otherwise
amended his bankruptcy schedules to disclose any in-
heritance, life insurance benefits, annuity interests, joint
interests in stocks, T-bills, or savings bonds. Instead,
knowing that Stevens wanted to sell the Briar Cliff
home, James obtained a mortgage loan on the home and
deposited the proceeds ($79,908.90) in his Amcore
Bank account on March 18, 2005. He used approximately
$15,000 of the proceeds to buy a car, and transferred
$55,000 to an E*Trade account he owned.
Stevens unsuccessfully attempted to contact Joseph by
phone. By letter dated April 20, 2005, Stevens informed
Joseph that he had filed a lien again Eileen’s 5215
Nos. 10-1188 & 10-2156 5
South Massasoit Avenue home. Joseph did not respond.
James, on the other hand, requested a meeting and asked
how much money he needed to pay the creditors in full.
James informed Stevens that the Briar Cliff home was
worth something less than $175,000 and that there was
a lien on the home. James informed Stevens that he
had $50,000 to pay creditors.
By November 2005, James had transferred money from
his E*Trade account back to his Amcore account and
paid Stevens $50,000. Stevens received an additional
$8,231.86 in December from the proceeds of the sale of
Eileen’s South Massasoit Avenue home. During the
closing of that sale, James and Joseph provided a signed,
handwritten document indicating that the proceeds
were to be split between them equally. In addition, an
attorney helped prepare a handwritten “Affidavit of
Heirship” falsely stating that Eileen died “leaving no
last will and testament.” James provided the informa-
tion for the affidavit and signed the same.
James and Joseph were charged in a six-count super-
seding indictment on December 16, 2008. Both were
charged in count one with bankruptcy fraud in violation
of 18 U.S.C. § 157(3). James was charged in counts two,
four, and five with bankruptcy fraud in violation of 18
U.S.C. § 152(1), and in count three with obstruction of
justice in violation of 18 U.S.C. § 1503. Joseph was
charged in count six with making a false statement in
violation of 18 U.S.C. § 1001. Trial began on September 14,
2009, and James was convicted on all counts charged.
Joseph was convicted on count one. Counts three and six
were eventually dismissed.
6 Nos. 10-1188 & 10-2156
At trial, the government introduced evidence re-
garding the inconsistent use of the disclaimer and assets
that were not disclosed in James’s bankruptcy schedules.
For example, James and Joseph submitted separate
claims as the beneficiaries of Eileen’s two whole-life
insurance policies issued by Metropolitan Life Insurance
Company. Using the same Naperville, Illinois, address
on their respective claim forms, each son received an
identical benefit payments check from Metropolitan.
Joseph’s check and James’s check (which was endorsed
by James and Joseph) were deposited into the same
account—a TCF bank account owned jointly by Eileen
and Joseph prior to Eileen’s death. Although Metropoli-
tan’s records contained copies of the declaration and
disclaimer, Metropolitan did not distribute the policy
benefits in accordance with the disclaimer.
In addition, on May 5, 2003 Joseph notified Phoenix
Mutual Life Insurance of Eileen’s death. He submitted
two claim forms later that month—one signed by him
and the other signed by James. With those forms, Joseph
provided copies of the disclaimer and declination. The
letter stated in part: “[E]nclosed with these forms is a
‘Disclaimer of Inheritance’ form which was signed by
my brother ‘James’ to exclude him from any dealings
with the estate, due to him going thru a bankruptcy
presently.” Phoenix honored the disclaimer and Joseph’s
request for the proceeds and issued a check for the full
benefits to Joseph. That check was deposited at the
same time and to the same account as the Metropolitan
proceeds checks.
Nos. 10-1188 & 10-2156 7
Meanwhile, on October 2, 2003, Joseph telephoned
Jackson National Life Insurance to notify them of his
mother’s death. Separate packages of claim forms for
the individual fixed annuity death benefit policy were
sent to James and Joseph at the same Naperville ad-
dress. James and Joseph submitted separate claims
for the Jackson Life benefits on October 14, 2003, each
of which elected a lump sum distribution, and both
claim forms bore the signature of the same witness.
Jackson Life routinely honored disclaimers of benefits,
but the records relating to Eileen’s annuity policy did not
contain any disclaimer documents or references to any
disclaimer.
Jackson Life mailed separate letters dated October 30,
2003, to James and Joseph at the Naperville address
confirming that the benefits had been deposited
into their beneficiary access accounts at Jackson Bank.
James’s beneficiary access account was opened at Jack-
son Bank on October 29, 2003, with the deposit of the
policy proceeds, $29,307.78. Joseph’s Naperville address
was the address on the account. James signed each of
the three checks that were written on the account,
totaling more than $29,000, and all were deposited into
one of James’s accounts at Amcore Bank.
On December 4, 2003, James used the funds in his
Amcore Bank account to pay $22,095.75 on his mortgage
loan and stop foreclosure proceedings on his Briar Cliff
home. The source of the funds in the Amcore account
was three checks written by James on his Jackson Fed-
eral beneficiary account. Further, on February 13, 2004,
8 Nos. 10-1188 & 10-2156
Amcore received a TCF Bank official check in the
amount of $140,000 that was applied to the Briar Cliff
loan payment to reduce the balance from $148,406.54
to $8,406.54. The source of the funds was the TCF
Bank account jointly owned by Joseph and Eileen prior
to her death. The funds in the TCF deposit account
came from various sources, but the most significant were
the proceeds of the Metropolitan policies, the Phoenix
policy, proceeds from an American Funds account
owned jointly by Eileen and Joseph, and redemption
proceeds from T-bills owned by Eileen with James and
Joseph.
Specifically, James and Eileen owned five T-bills as
joint tenants with the right of survivorship. Each had a
thirteen-week term and was rolled over one or more
times. Some occurred because specific rollovers were
scheduled at the time of purchase whereas others
occurred when someone directed the rollover. On seven
occasions after Eileen’s death, the Bureau of Public
Debt was directed to roll over the T-bills owned jointly by
Eileen and James. Between November 2003 and Janu-
ary 2004, the five T-bills were redeemed automatically
and the $48,000 in proceeds was deposited into the
same TCF Bank account where the Metropolitan and
Phoenix policy proceeds had been deposited.
Joseph changed the address associated with the
Eileen/Joseph T-bills telephonically on May 29, 2003,
from Eileen’s South Massasoit Avenue address to
Joseph’s Naperville address. The address associated with
the Eileen/James T-bills was also changed to Joseph’s
Nos. 10-1188 & 10-2156 9
Naperville address. Bureau of Public Debt records reveal
that on June 2, 2003, a person using the name “Jim”
telephoned to confirm the address change request and
that only an account owner could make such a request.
Eileen owned savings bonds with James as the joint
owner or the beneficiary, and she owned bonds with
Joseph as well. The registered ownership of those
savings bonds remained unchanged at the time of trial.
James and Joseph applied to cash out other savings
bonds approximately 15 months after Eileen’s death.
James and Joseph were identified as the people having
an interest in the estate and the application sought
separate lump sum distributions. James provided his
Briar Cliff address, and Joseph provided his Naperville
address. James’s distribution check was deposited to
his Amcore account on September 29, 2004.
In addition, Eileen owned shares of stock in AT&T, Bell
South, Verizon, and Comcast, with James and Joseph
as joint tenants with the right of survivorship. Approxi-
mately 11 months after Eileen’s death, James submitted
change of ownership documents to change ownership of
the shares he had jointly owned with Eileen to joint
ownership with Joseph. Under oath in those documents,
James stated he was a “survivor in joint tenancy” as a
result of Eileen’s death. The change of ownership
requests used James’s Briar Cliff address as the address
for the share accounts. Except for the use of his Naperville
address for the account, Joseph handled the ownership
of his jointly owned shares identically by transferring
ownership to James and Joseph as joint tenants with
right of survivorship. Records of the company that
10 Nos. 10-1188 & 10-2156
handled the share transfers contained no reference to a
disclaimer of inheritance.
Several E*Trade accounts were not disclosed by James
in his schedules. The first account, opened on April 12,
2000, used James’s Briar Cliff address and had a balance
of one cent at the time of the petition. The second
E*Trade account was opened on April 10, 2002, using
Joseph’s name and Naperville address. The account was
still open when the petition was filed. No activity
occurred until less than one month prior to the filing of
the bankruptcy petition, when, on February 24, 2003, a
$5,000 deposit was made. James admitted that he
handled all the trading in the account and signed
Joseph’s name to an application for checks and an ATM
card for the account. James’s Statement of Financial
Affairs denied controlling any property owned by
another person.
Four checks were used to withdraw available funds
from the second E*Trade account. Between March and
August of 2004, James wrote the checks for his personal
benefit, and three of the checks bore his signature. He
was not authorized to sign checks on the account.
Joseph’s name was on the fourth check’s signature line,
but James admitted he signed the name Joseph Persfull
on the check.
Additionally, in the years prior to the bankruptcy
James had filed federal income tax returns that reported
income from electrical work he performed. His 2004 and
2005 returns reflected this type of income as well. James
never reported income from any electrical work in 2003,
Nos. 10-1188 & 10-2156 11
the year he filed for bankruptcy, even though he was
paid once—possibly twice—for work performed for
third parties. The first payment of $1,275 was made by
check dated December 4, 2003, for work performed on
November 19, 2003. The second was a check dated
January 4, 2004, for $1,365 for work that may have been
done prior to the end of 2003. He operated the business
outside of his regular working hours, but no income was
disclosed on his Statement of Financial Affairs. That
document, signed under penalty of perjury, required
disclosure of income received during the two years prior
to the March 2003 Chapter 7 bankruptcy filing.
James did not list Lazer Electric on his tax returns, but
used that name when he opened the account at Amcore
Bank in March 2002. The account, with an approxi-
mate balance of $240, was not closed until Decem-
ber 2003. While his bankruptcy schedules required
that trade names used during the prior six years be
listed, none were. Further, the schedules required that
all bank accounts be listed, but only one checking and
one savings account at Amcore Bank were. Neither be-
longed to Lazer Electric. The petition and the schedules
were signed under penalty of perjury.
II. ANALYSIS
On appeal, James and Joseph argue that the govern-
ment presented insufficient evidence to prove beyond a
reasonable doubt that they schemed to defraud a bank-
ruptcy trustee. Both maintain that their innocence was
more probable than any theory of guilt. Alternatively,
12 Nos. 10-1188 & 10-2156
they argue that counsel was ineffective in failing to
move for judgment of acquittal on this ground. James
further submits that the evidence was insufficient on
the concealment counts, and that the government
violated Bruton v. United States, 391 U.S. 123 (1968), by
referencing Joseph’s statement from an FBI interview
during opening argument. Joseph adds that the district
court erred by allowing an aiding and abetting instruc-
tion to be considered by the jury, and that counsel was
ineffective in failing to seek a modified instruction.
The standard of review is dictated by the manner in
which James and Joseph preserved their argument for
appeal. Neither defendant filed a motion for judgment
of acquittal or otherwise cited a rule in support of the
acquittal. Nevertheless, they did move for a new trial,
and, to the extent they made the argument in their
motion, the district court’s decision not to grant a new
trial is reviewed for abuse of discretion. United States
v. Useni, 516 F.3d 634, 650 (7th Cir. 2008).
Specifically, in his motion for a new trial, Joseph
asserted that the government failed to produce direct
evidence that he knowingly participated in bankruptcy
fraud. The district court denied this motion as untimely.
However, even if timely, the district court ruled that
proof of knowledge is typically accomplished through
circumstantial evidence and that the argument lacked
merit. Implicit in this decision is that there was suf-
ficient circumstantial evidence to sustain the conviction.
James argued that the government failed to present
sufficient evidence in support of counts one through four.
Nos. 10-1188 & 10-2156 13
The district court determined that James waived this
argument by failing to provide any rationale or
authority in support.2
In count one, James and Joseph were charged with
devising a scheme to defraud the trustee by concealing
James’s inheritance interests through the creation and
use of a sham disclaimer. A defendant is guilty of bank-
ruptcy fraud where the person:
who, having devised or intending to devise a scheme
or artifice to defraud and for the purpose of executing
or concealing such a scheme or artifice or attempting
to do so—
(3) makes a false or fraudulent representation, claim,
or promise concerning or in relation to a pro-
ceeding under title 11, at any time before or after the
filing of the petition, or in relation to a proceeding
falsely asserted to be pending under such title.
18 U.S.C. § 157(3). “[B]ecause direct evidence of a de-
fendant’s fraudulent intent is typically not avail-
able, specific intent to defraud may be established
by circumstantial evidence and by inferences drawn
from examining the scheme itself. . . .” United States
v. Howard, 619 F.3d 723, 727 (7th Cir. 2010) (citation omit-
ted).
2
The government argues that failure to preserve a challenge
to the sufficiency of the evidence results in a plain error
review of the issue. Because we conclude that there was no
error under the more demanding abuse of discretion standard,
we need not conduct a plain error review.
14 Nos. 10-1188 & 10-2156
As to the remaining counts, concealment of assets,
false oaths and claims, and bribery, the statute reads
as follows:
A person who—(1) knowingly and fraudulently
conceals from a custodian, trustee, marshal, or other
officer of the court charged with the control or
custody of property, or, in connection with a case
under Title 11 . . . shall be fined under this title, im-
prisoned not more than 5 years, or both.
18 U.S.C. § 152(1). This statute is a congressional attempt
to cover all the possible methods by which a debtor or
any other person may attempt to defeat the intent and
effect of the bankruptcy law through any type of effort
to keep assets from being equitably distributed among
creditors. United States v. Ellis, 50 F.3d 419, 422 (7th Cir.
1995) (citing United States v. Goodstein, 883 F.2d 1362,
1369 (7th Cir. 1989)).
On this record, there was no abuse of discretion in
denying the motions for a new trial. The circumstantial
evidence admitted at trial allows a reasonable jury to
find that the brothers engaged in a fraudulent scheme.
That evidence established that Joseph knew that James
was keeping his inheritance from being administered
by the bankruptcy trustee. The disclaimer states that a
copy was served on Joseph, and Joseph wrote a letter to
Phoenix Mutual Insurance stating “enclosed with these
forms is a ‘Disclaimer of Inheritance’ form which was
signed by my brother ‘James’ to exclude him from any
dealings with the estate, due to him going thru a bank-
ruptcy . . . .” James also testified that he asked an
attorney, in Joseph’s presence, whether he could keep his
Nos. 10-1188 & 10-2156 15
inheritance out of the bankruptcy estate, and that the
attorney indicated the disclaimer would fulfill that goal.
In addition, there was evidence of intent to use the
disclaimer as a ruse. Joseph utilized the disclaimer to
obtain 100% of the benefits from Phoenix and, therefore,
knew he could use it to receive other benefits and
property interests from his mother. However, Joseph
made additional claims for Eileen’s property that were
inconsistent with the disclaimer. James admitted he
received and used various proceeds for his own benefit
after discharge of his debt, including the $29,000 claim
on the annuity policy. Joseph also made a claim on the
annuity policy but no disclaimer was provided. Mean-
while, James made claims on the savings bonds and
stock interests he jointly owned with his mother, yet he
failed to provide the disclaimer in those transactions.
Moreover, James represented to the Bureau of Public
Debt that he had an interest in his mother’s estate. He
made similar misrepresentations when he submitted
affidavits to change ownership in the stocks, stated
that he was the surviving joint tenant, and signed an
Affidavit of Heirship indicating that his mother had
no will.
In addition, the jury was entitled to assess credibility
and the circumstances surrounding James’s and Joseph’s
failure to make timely notifications of their mother’s
death. James learned of his mother’s death two days
after being told he must disclose an inheritance
interest, but he never amended his bankruptcy
schedules or notified the bankruptcy trustee of his in-
heritance interests. James represented that he had an
16 Nos. 10-1188 & 10-2156
interest, made direct claims, and used the money for
his own benefit, while Joseph used the disclaimer on a
limited basis, waited over a year to notify the Bureau
of Public Debt of his mother’s death, and failed to
respond to inquiries by the bankruptcy trustee after
being threatened with legal action. While James and
Joseph focus on the absence of direct evidence, circum-
stantial evidence is sufficient to prove fraudulent intent
and to support a conviction. See United States v. Webster,
125 F.3d 1024, 1034 (7th Cir. 1997). Here, the circum-
stantial evidence allowed a reasonable juror to find the
essential elements beyond a reasonable doubt.
Joseph and James rely upon a line of cases holding that,
“[w]here the evidence as to an element of a crime is
equally consistent with a theory of innocence as with a
theory of guilt, that evidence necessarily fails to estab-
lish guilt beyond a reasonable doubt.” United States v.
Delay, 440 F.2d 566, 568 (7th Cir. 1971); see also United
States v. Harris, 942 F.2d 1125, 1129-30 (7th Cir. 1991). The
government responds by citing United States v. Keck, 773
F.2d 759, 769 (7th Cir. 1985), where we held that a re-
viewing court will not disturb a defendant’s convic-
tion when any rational juror could have found the defen-
dant guilty beyond a reasonable doubt after viewing
the evidence and all the inferences in the light most
favorable to the government. Notably, the line of cases
cited by James and Joseph applies when “the evidence
is woefully inadequate” to establish an element of the
offense. Delay, 440 F.2d at 568. In Delay, there was no
direct or circumstantial evidence that the defendant
possessed the requisite knowledge to support a finding
of guilt. In contrast, the circumstantial evidence in this
Nos. 10-1188 & 10-2156 17
record is more than adequate to support a guilty verdict.
Because the brothers knew of the disclaimer, used it
inconsistently, and concealed assets from the estate,
their convictions on count one will be affirmed.
Similarly, the evidence was more than sufficient on
the concealment charges. The evidence established that
James knew he was required to disclose an inheritance
and used the money as his own irrespective of the dis-
claimer. In addition, James failed to disclose the Lazer
Electric account, the existence of the E*Trade account
from which he wrote checks, his business’s trade name,
and previous income. As a general rule, in bankruptcy
proceedings “[d]ebtors have an absolute duty to report
whatever interests they hold in property, even if they
believe the assets are worthless or are unavailable to
the bankruptcy estate.” United States v. Van Allen, 524
F.3d 814, 822 (7th Cir. 2008). Hence, the jury is entitled
to assess James’s credibility on these failures to comply
with the bankruptcy law and factor that into a deter-
mination of guilt. The jury could reasonably infer guilt
consistent with the government’s theory of the case. On
appeal, it is a monumental task to mount a successful
sufficiency claim, and James and Joseph are light years
away from meeting that burden. We will not disturb
the jury’s determination.3
3
Joseph alternatively argues that the evidence was so
tenuous that it renders his conviction “shocking” and therefore
constitutes plain error. Because there was no abuse of discre-
tion, there was no plain error.
18 Nos. 10-1188 & 10-2156
James and Joseph maintain that regardless of the
ruling on their motions for a new trial, counsel was inef-
fective in failing to move for judgment of acquittal.
When assessing claims of ineffective assistance of
counsel the court evaluates whether counsel’s per-
formance fell below an objective standard of reasonable-
ness and whether defendant was prejudiced by coun-
sel’s deficient performance. Strickland v. Washington,
466 U.S. 668, 687 (1984). Counsel’s performance is pre-
sumed to fall within a wide range of reasonable profes-
sional assistance and that the challenged act or omis-
sion might have been considered sound trial strategy.
United States v. Allen, 390 F.3d 944, 951 (7th Cir. 2004). The
court will find prejudice where there is “a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
Id. In cases such as this, where there was no abuse of
discretion regarding sufficiency of the evidence, and
certainly no plain error, defendants cannot satisfy the
prejudice prong of Strickland, 466 U.S. at 687.
Next, James argues that the government committed
a Bruton violation by “twice recounting an out-of-
court statement allegedly made by Joseph Persfull
during the Government’s opening argument as means
of establishing James Persfull’s guilt.” A trial court’s
ruling that impacts a defendant’s Sixth Amendment
right to confrontation is reviewed de novo. United States
v. Scott, 145 F.3d 878, 887-88 (7th Cir. 1998).
Joseph was charged in count six of the superseding
indictment with making false statements to FBI agents
Nos. 10-1188 & 10-2156 19
during an October 2006 interview in violation of 18
U.S.C. § 1001. Although that count was dismissed at the
end of the government’s case in chief, several state-
ments were made during the government’s opening.
Specifically, James refers to the following:
[Y]ou might ask yourselves in listening to the
evidence whether or not, well, maybe the disclaimer
was real, and it’s just brother Joseph decided to be
generous to his brother James and give him some
of that property. Even if it did happen to be about
the same amount of what his inheritance would
be, it was just a gift or a loan. But you’ll hear the
testimony that Joseph told the FBI in the investiga-
tion of this case that between the time of his
mother’s death and the time that he was interviewed
in 2006, he gave no gifts or loans to his brother James.
The one thing that we do think he told the truth about
is that there were no gifts or loans to his brother
because his brother took the inheritance property
directly. Some was transferred by Joseph, but
James himself claimed and took the money without
it ever passing through Joseph’s hands.
Counsel did not object during the opening.
At the beginning of the second day of trial, James
argued that Joseph’s statement was inadmissible. The
government responded that the statement was ad-
missible against Joseph as evidence of his participation
in a scheme, and it would not object to an instruction
that the statement could only be considered against
Joseph. Later that day, James moved for a mistrial
20 Nos. 10-1188 & 10-2156
based on the alleged Bruton violation. The district court
denied the motion on the ground that the statement
was neither facially incriminating nor inconsistent with
James’s innocence and that a limiting instruction
would suffice. In addition to the opening instructions
cautioning that statements were not evidence, the
court gave the following instruction at the end of the
government’s case in chief:
I’m going to give you an instruction. The United
States has moved and I have agreed to dis-
miss Count 6, which charged only defendant
Joseph Persfull with making a false statement to
the FBI. I have dismissed that allegation because
the government has failed to produce any evidence
supporting it. While the government has not offered
any evidence of making a false statement, it was
referred to in opening statement. As I told you then,
opening statements by the attorneys are only pre-
dictions of what the parties expect the evidence to
be and are not evidence. I further instructed you to
rely on the evidence you hear from the witness
stand, the exhibits admitted into evidence, and any
stipulations between the parties and not on what
the parties’ predictions in their opening statements
might have been. I now instruct you to disregard
entirely any statements made by the parties con-
cerning the false statement count which is now dis-
missed, including references to any statements alleg-
edly made by Joseph Persfull concerning gifts or
loans to his brother James. As I have said, those state-
Nos. 10-1188 & 10-2156 21
ments are not evidence and should not be con-
sidered by you in any way.
The defendants had no objection to the final instruction
as given.
Under Bruton, “[a] defendant is deprived of his rights
under the Confrontation Clause when his nontestifying
codefendant’s confession naming him as a participant
in the crime is introduced at their joint trial, even if
the jury is instructed to consider that confession only
against the codefendant.” Richardson v. Marsh, 481 U.S.
200, 201-02 (1987). However, in Frazier v. Cupp, 394 U.S.
731, 735 (1969), the Supreme Court held that a Bruton
error did not occur where the prosecutor in his opening
statement summarized inculpatory testimony he ex-
pected the defendant’s accomplice to give, and the ac-
complice later refused to testify.
Joseph’s statement was never admitted into evidence
and was not facially incriminating. James argues that
the statement contradicted his position that the money
was a gift, but the statement alone did not implicate
him in a crime. As such, James’s Sixth Amendment
rights were not compromised. As the Court said in
Bruton, “Not every admission of inadmissible hearsay
or other evidence can be considered to be reversible
error unavoidable through limiting instructions; in-
stances occur in almost every trial where inadmissible
evidence creeps in, usually inadvertently.” Bruton, 391
U.S. at 135.
Moreover, the jury was given a limiting instruction
to disregard the statement. Although Bruton made clear
22 Nos. 10-1188 & 10-2156
that in certain circumstances a limiting instruction
cannot cure the harm caused by the admission of
improper evidence, we believe that under the circum-
stances of this case, the limiting instruction was
sufficient to safeguard any possible infringement of
James’s constitutional rights. See Frazier, 394 U.S. at 735.
As the Supreme Court observed in Frazier, although it
may be “unreasonable to assume that a jury can
disregard a coconspirator’s statement when introduced
against one of two joint defendants, it does not seem at
all remarkable to assume that the jury will ordinarily
be able to limit its consideration to the evidence
introduced during the trial.” Id. at 736. Under these
circumstances and in the face of substantial evidence
apart from any statement made in the opening, there
is no basis for reversing the district court’s decision.
Joseph additionally contends that the record did not
support an aiding and abetting instruction, and/or that
counsel was ineffective in failing to seek a modified
instruction. The district court gave the following
Seventh Circuit Criminal Pattern Jury Instruction:
A person who knowingly aids the commission of an
offense may be found guilty of that offense. The
person must knowingly associate with the criminal
activity, participate in the activity, and try to make
it succeed.
Joseph’s only objection at trial was based on the fact
that he was charged as a principal rather than an aider
and abetter. In his motion for a new trial, he argued that
the jury instruction was incomplete and should have
Nos. 10-1188 & 10-2156 23
included additional language. For the first time on
this appeal, Joseph submits that there was insufficient
evidence to support giving the instruction to the jury.
To preserve an objection to a proposed jury instruc-
tion for appellate review, “a party must object to the
instructions, ‘stating distinctly the matter to which the
party objects and the grounds of the objection.’ ” United
States v. O’Neill, 116 F.3d 245, 247 (7th Cir. 1997) (quoting
F ED. R. C RIM. P. 30). Because Joseph did not preserve
this claim below, it is waived on appeal, and his argu-
ment is reviewed for plain error.
Joseph now faces an uphill battle because it is rare that
we reverse a conviction on the basis of an improper jury
instruction to which there was no objection. United States
v. Wheeler, 540 F.3d 683, 689 (7th Cir. 2008). An error is
“plain” if it was “(1) clear and uncontroverted at the
time of appeal and (2) affected substantial rights, which
means the error affected the outcome of the district
court proceedings.” United States v. Fernandez, 282 F.3d
500, 509 (7th Cir. 2002).
As stated in the instruction, aiding and abetting
requires knowledge of the crime being aided and abetted.
Joseph argues that the “evidence did not establish that
Joseph even knew James was violating the bankruptcy
laws much less that Joseph assisted James in his wrong-
doing.” However, the government introduced evidence
that Joseph knew James was using a disclaimer to keep
his inheritance out of the bankruptcy estate while
making claim to and using the funds as his own. Under
such circumstances there was no error, let alone plain
24 Nos. 10-1188 & 10-2156
error, in the district court giving the aiding and
abetting instruction.
Joseph again submits that counsel was ineffective
in failing to request the following additional language in
the aiding and abetting instruction:
However, that person must knowingly associate
with the criminal activity, participate in the activity,
and act in a way that the person knows will help
the activity succeed. In other words, it is not enough
that a person happens to act in a way that advances
the criminal activity if that person has no knowledge
that a crime is being committed or is about to be
committed.
See United States v. Ortega, 44 F.3d 505 (7th Cir. 1995).
Because there was sufficient evidence in the record to
support the conviction based on the instruction given, it
cannot be said that the failure to make this request
resulted in prejudice. Nothing in the record provides
a basis for second guessing counsel’s decision.
Ultimately, “when an ineffective-assistance claim is
brought on direct appeal, appellate counsel and the
court must proceed in a trial record not developed pre-
cisely for the object of litigating or preserving the claim
and thus often incomplete or inadequate for this pur-
pose.” Massaro v. United States, 538 U.S. 500, 504-05
(2003). “After Massaro, only the rarest and most
patently egregious of ineffective assistance claims are
appropriately brought on direct appeal because there
is no risk to delaying until a fully developed record
is made.” United States v. Harris, 394 F.3d 543, 558 (7th
Nos. 10-1188 & 10-2156 25
Cir. 2005). Joseph’s claim of attorney error does not
qualify “for this aggressive treatment.” See id.
III. Conclusion
We A FFIRM the judgment of the district court.
10-6-11