United States v. Walker, 13–2145.

Decision Date30 June 2014
Docket NumberNo. 13–2145.,13–2145.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Gregory WALKER, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Jessica Romero, Attorney, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee.

Sarah O'Rourke Schrup, Attorney, Northwestern University School of Law, Chicago, IL, for DefendantAppellant.

Before POSNER and RIPPLE, Circuit Judges, and GILBERT, District Judge.**

GILBERT, District Judge.

On January 16, 2013, a jury found Gregory Walker guilty of two counts of wire fraud in violation of 18 U.S.C. § 1343. On appeal, Walker makes the following three arguments: (1) the failure to obtain and turn over Walker's seized items from a previous unrelated state case constitutes a Brady violation and prevented Walker from presenting his theory of defense; (2) the district court erred when it refused to give Walker's proposed buyer-seller instruction to the jury; and (3) the district erred in ordering restitution. For the following reasons, we affirm the district court.

In sum, Walker was involved in a mortgage fraud scheme encompassing at least ten different loans and seven different properties in the Chicago area. Throughout the scheme, Walker served as both a fraudulent buyer and seller. He also used his then-girlfriend, co-defendant Tanya McChristion, as a straw purchaser in some transactions. With respect to the two wire fraud counts that went to trial, Walker fraudulently caused Long Beach Mortgage to loan money on two different occasions with properties located at 9023 South Kingston, Chicago, Illinois (“the Kingston property”) and 277 Allegheny Street, Park Forest, Illinois (“the Park Forest property”) serving as collateral.

In his role as a fraudulent buyer, Walker first obtained a fraudulent loan for the Kingston property on May 19, 2005, when he submitted a loan application through co-defendant Carol Simmons, a loan processor. Simmons prepared and submitted the loan application containing false information about Walker's employment, assets, and rental income. Thereafter, Walker sold the Kingston property to McChristion on January 31, 2006. This transaction, in Walker's role as a fraudulent seller, is the subject of Count Two. To obtain the January 2006 mortgage on the Kingston property, Simmons submitted loan applications on behalf of McChristion to Long Beach Mortgage. The application was replete with false information regarding McChristion's assets, employment, income, and earnest money payments. Walker obtained control of a portion of the loan proceeds through a check made payable to Real Deal Construction, a company owned by Walker.

The loan for the Park Forest property, the subject of Count Three, was obtained through Walker's use of McChristion as a straw buyer. This loan was obtained in a similar manner as the Kingston property loan, wherein Simmons prepared and submitted fraudulent loan documents in McChristion's name. In addition to listing McChristion's fraudulent income information, the loan application stated the sale price was $137,000; however, at trial the seller testified the negotiated sale price was $86,000. Eventually, the loans went into default and the properties were foreclosed on. In sum, Walker's conduct relating to the ten fraudulent transactions caused an estimated $956,300 in loss to Long Beach Mortgage.

Walker's trial counsel entered his appearance in the instant case just a few weeks prior to trial. Counsel filed a motion to continue citing his need to conduct an investigation of the evidence to determine whether Walker had a Silverthorne claim.1 Specifically, counsel was concerned that illegally seized material from an unrelated state case, in the possession of the South Holland Police Department, may have been used to form the basis of the instant federal case. That evidence stems from Walker's 2006 arrest by Secret Service and others for possession of a gun. During that arrest, law enforcement seized property from Walker's home, including third parties' state identification cards, social security numbers, and credit histories; electronic storage devices; and documents and ledgers. The state court held that the search was in violation of Walker's Fourth Amendment rights and suppressed the evidence in his state case.

Throughout the district court proceedings, the government maintained that its evidence for the instant case came from lenders, title companies, financial institutions and eyewitness testimony, not from the 2006 state search. It further maintained that the only investigating agency was Housing and Urban Development, not the Secret Service.

During an October 17, 2012, hearing on Walker's motion for return of a subpoena directed at the South Holland Police Department, the district court clarified the information sought by Walker. Specifically, defense counsel said, “All I'm asking for is disclosure from the police as to what they did with this stuff,” and “I want to know what they did with the stuff. That's all, what the police did with the stuff.” Defense counsel further explained that he was no longer seeking production of the seized property because “it would be a little unwise for a criminal attorney to ask for evidence of crimes that he wasn't charged with.” Defense counsel then clarified that his request was in the alternative, and he was alternatively requesting, pursuant to Brady, “a disclosure as to what the Federal Government or the state authorities did with the seized property.

The district court directed the government to inquire as to the status and location of the seized 2006 property. As such, the government filed a status report on October 24, 2012, detailing its contact with the South Holland Police Department. Specifically, the government found that the seized property was still in the South Holland Police Department's possession and no one had made a claim to the seized property since the 2006 seizure. The government further informed the district court that the South Holland Police Department affirmed it had no connection with or knowledge of the instant federal case. Thereafter, Walker did not attempt to obtain the evidence in the custody of the South Holland Police Department and proceeded to trial.

At the jury instruction conference, Walker proposed the following buyer-seller instruction:

The existence of a simpler buyer-seller relationship between a defendant and another person, without more, is not sufficient to establish a criminal enterprise, even where the buyer intends to resell the property. The fact that a defendant may have bought property from another person is not sufficient without more to establish that the defendant was a member of the charged criminal enterprise.

In considering whether a criminal enterprise or a simple buyer-seller relationship existed, you should consider all of the evidence, including the following factors:

(1) Whether the transactions involved large quantities of property or properties;

(2) Whether the parties had a standardized way of doing business over time;

(3) Whether the sales were on credit or on consignment;

(4) Whether the parties had a continuing relationship;

(5) Whether the seller had a financial stake in a resale by the buyer;

(6) Whether the parties had an understanding that the property or properties would be resold.

No single factor necessarily indicates by itself that a defendant was or was not engaged in a simple buyer-seller relationship.

The district court rejected Walker's proposed buyer-seller instruction.

Ultimately, the jury found Walker guilty on both Counts Two and Three of the indictment. Walker filed a motion for a new trial or judgment N.O.V. arguing there was insufficient evidence and that the court's refusal to give his buyer-seller instruction was reversible error. The district court denied the motion.

Based on an offense level of twenty-three and a criminal history category of four, Walker's sentencing guidelines range was seventy to eight-seven months' imprisonment. The district court imposed a below-guideline sentence of sixty months on each count to run concurrently. The Court further imposed a three-year term of supervised release and a $200 special assessment.

The presentence report (“PSR”) recommended the Court impose restitution in the amount of $956,300 to compensate Long Beach mortgage for its losses. The Government's Version of the Offense put forth the methodology by which the government calculated the loss amount. The loss amounts for the various properties were obtained by subtracting the sale price the victim-lender received after recovering possession of the property from the amount of the fraudulent loan. Walker objected to the PSR's restitution amount only to the extent that he stated it was unfair to impose restitution in an amount representing losses caused by others in the scheme and that the evidence showed that Walker had made payments on the mortgages for properties he purchased. Walker did not, however, object to or present evidence contrary to the loss calculations contained in the PSR. The district court adopted the PSR's actual loss calculation of $956,300 and ordered restitution joint and several with Walker's co-defendants.

We will now consider each of Walker's arguments in turn.

1. Brady Violation

First, Walker argues a Brady violation stemming from the government's failure to provide him with the South Holland Police Department evidence. He further argues this alleged Brady violation prevented him from presenting his theory of defense because the evidence in question contained evidence relevant to his defense. We review a district court's denial of a motion for a new trial based on a Brady violation for abuse of discretion. United States v. Wilson, 237 F.3d 827, 831–32 (7th Cir.2001). Where a defendant fails to preserve a Brady violation claim before the...

To continue reading

Request your trial
30 cases
  • United States v. Shields
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 15 Junio 2015
    ...the settlement at any point before the suppression hearing and trial through the exercise of due diligence. See United States v. Walker, 746 F.3d 300, 307 (7th Cir.2014) (noting that the defendant “never even asked the South [Holland] Police Department to provide him with the evidence”); Un......
  • United States v. Griffin
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 7 Agosto 2023
    ...defendant failed to raise a specific argument regarding a restitution award in the district court, we employ plain-error review. See Walker, 746 F.3d at 308 (citing United States v. Berkowitz, 732 F.3d 852 (7th Cir. 2013)). The Mandatory Victim Restitution Act ("MVRA") requires the defendan......
  • United States v. Edwards
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 16 Mayo 2022
    ...suppressed, and (3) material to the defense." United States v. Walter , 870 F.3d 622, 629 (7th Cir. 2017) (quoting United States v. Walker , 746 F.3d 300, 306 (7th Cir. 2014) ). Edwards has failed to satisfy these elements.1. Favorable Evidence Evidence is "favorable" if it is exculpatory o......
  • United States v. Cruse, s. 13–2929
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 3 Noviembre 2015
    ...(7th Cir.2013). “Defendants are not automatically entitled to any particular theory-of-defense jury instruction.” United States v. Walker, 746 F.3d 300, 307 (7th Cir.2014). Rather,[a] defendant is only entitled to a jury instruction that encompasses [a] theory of the defense if (1) the inst......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT