U.S. v. Bonner, 01-2192.

• Decision Date: 13 September 2002
• Docket Number: No. 01-2192.,01-2192.
• Citation: 302 F.3d 776
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vernon BONNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 776

302 F.3d 776

UNITED STATES of America, Plaintiff-Appellee, v. Vernon BONNER, Defendant-Appellant.

No. 01-2192.

United States Court of Appeals, Seventh Circuit.

Argued January 11, 2002.

Decided September 13, 2002.

COPYRIGHT MATERIAL OMITTED

Diane L. Berkowitz (argued), Office of the United States Attorney, Hammond, IN, for plaintiff-appellee.

Thomas J. Organ (argued), Arlington Heights, IL, for defendant-appellant.

Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

A jury found Vernon Bonner guilty of four counts of mail fraud and one count of theft of government funds, after he swindled a widow out of her spousal and dependent Veterans Administration (VA) benefit payments. The court denied his motion for a new trial. On this direct appeal, Bonner contends that the district court committed several errors in the handling of testimony at trial. Finding no error, we affirm his conviction.

I

While living in Brazil, James Kettles, an expatriate American armed forces veteran, met a Brazilian national, Angelita. The two were eventually married and lived mainly on James's VA benefit payments. After James's death in 1992, Angelita was entitled to receive survivor and dependent benefits from the VA as the widow of a war veteran with dependent children. For some reason, however, after it learned of James's death, the VA failed to begin making the proper survivor/dependent payments (although it did terminate his direct benefits). Concerned, Angelita traveled to the United States to find out what was wrong and to secure the benefits she was due. In part because of her limited command of English, she was helped in this process by Dean Blake, a family friend. The trip proved fruitless, and Angelita returned to Brazil and went on with her life, relying chiefly on savings that her husband had left in a New York bank account.

Enter Vernon Bonner. Before James and Angelita were married, they met Bonner, who was visiting Brazil. In 1993, Bonner was again vacationing in Brazil, and he paid a visit to Angelita. At that time, he learned of James's death and of Angelita's problems with the VA benefits. Bonner offered to help her get the benefits reinstated. During another trip to Brazil in 1994, Bonner asked Angelita to provide him with copies of her marriage certificate and license, James's burial documents, and the children's birth certificates. To further her cause with the VA, Bonner also asked Angelita to sign several papers, including a power of attorney, that were written in English.

In 1994, Angelita started receiving checks from the VA once again. She received an $8,000 check for benefit payments that were overdue as well as one more check. Then, from her point of view, the checks again ceased arriving. This was because Bonner, armed with the power of attorney, asked the VA in August of 1994 to send all benefits due Angelita to a post office box that he had set up in Gary, Indiana. In 1995, Bonner filed a request that Angelita's benefit payments be directly deposited in his bank account in Chicago.

In 1995, Bonner notified Angelita that she would be receiving a check for approximately $33,000 from the VA. He asked for a 20% cut of that check for his expenses. Not suspecting anything yet, when she received the check in November 1995 she sent Bonner some $3,000 in compensation. Bonner then contacted the VA, fraudulently claiming that the $33,000 check made out to Angelita had been lost and should be re-sent to his address in Indiana. The VA took him at his word and sent him another check on November 20, 1995, which he deposited in his Chicago bank account.

Angelita thought it odd that after she received the $33,000 check, she was once again no longer receiving any current benefits. Instead of going through Bonner, this time she asked the VA directly about the cessation of her benefit payments. The VA responded that her benefit payments were being sent to her attorney-in-fact, Vernon Bonner. Angelita took another trip to the VA in New York to sort matters out, and for a time she again was receiving the check due to her. In March 1996, the VA noticed that two copies of the same $33,000 check had been cashed and asked Bonner for an explanation as well as repayment of the amount improperly deposited. (Angelita was not notified at that time that two copies of the check had been deposited.) Bonner suggested to the VA that it should merely suspend sending further checks to Angelita until the overpayment had been recouped. The VA agreed and stopped sending the checks to Angelita in July 1996. That was the first time it told Angelita about the double cashing of the $33,000 check. The VA opened a criminal investigation into the matter, and Angelita received no more checks until December 1999.

In conjunction with the investigation over the cashing of both checks, Bonner and Angelita were both asked to provide handwriting exemplars. Bonner declined to speak with investigators, but he did produce the handwriting exemplars in response to a grand jury subpoena. He did this on April 14, 1998, at the Hines VA medical center in Illinois. Agent Bryan Penton, who was present during those proceedings, had earlier received a mail package from Bonner, which contained postal receipts, the power of attorney, and a letter from Bonner to the VA concerning the status of Angelita's inquiries. Bonner declined to discuss these items with Agent Penton.

At trial, the jury heard competing tales of these events. Bonner painted himself as a friend of the family who had had an intimate relationship with Angelita and who loaned her substantial sums of money over the years. He contended that he was merely helping her receive her benefits and repaying himself for the loans along the way. Angelita's story was that Bonner was a casual acquaintance of her husband who occasionally would stop by the couple's place in Brazil. Upon her husband's death, she contended, Bonner took advantage of his position as a supposed friend of the deceased to bilk her, convincing her that he was going to help her with the benefits and instead robbing her of what she was due. While Angelita acknowledged that Bonner had, at one point, made her a $150 loan, she contended that she had repaid it with interest.

A string of witnesses took the stand, some of whom figure in Bonner's appeal. Angelita's character was bolstered improperly, he claims, by the testimony of Claudia Grahamm, an acquaintance of Angelita's who on occasion helped her write letters in English to the VA and who attested at trial to Angelita's honesty. Mr. Blake, who also helped Angelita during her visits to the United States and to the VA, also testified as to her honesty and reliability. Agent Penton testified that Angelita's benefits had been restored once she was cleared of this investigation. He further testified that Bonner behaved deceitfully upon their first encounter and refused to answer questions regarding certain exculpatory documents he had produced. Mr. Farrell Tate, a common acquaintance of Bonner and the Kettleses, expressed doubts as to Bonner's reputation for honesty and truthfulness and claimed that Bonner was not a generous person. Clariva Miranda, an acquaintance of Bonner who would have testified that he had gone to Bonner's house to translate a telephone conversation into Portuguese, was not allowed to testify.

II

On this appeal, Bonner takes issue with several evidentiary rulings of the district court, and asks for a new trial. When a defendant has objected at trial to the admission or exclusion of evidence, we review the district court's ruling only for abuse of discretion. United States v. Montani, 204 F.3d 761, 765 (7th Cir.2000) (admission of evidence); United States v. Lane, 267 F.3d 715, 719 (7th Cir.2001) (exclusion of evidence). When no such objection has been made, the point is forfeited and the defendant may prevail only upon a showing of plain error. United States v. Curtis, 280 F.3d 798, 801 (7th Cir.2002). Even if plain error occurred, the defendant is entitled to a new trial only if she "probably would not have been convicted but for the erroneously admitted evidence." United States v. Kellum, 42 F.3d 1087, 1092 (7th Cir.1994) (quotations omitted).

A. Introduction of Evidence about Angelita's Character

Angelita was the government's principal witness. The prosecution sought to introduce several statements that were aimed at bolstering her trustworthiness, including the statements from Claudia Grahamm and Dean Blake, and a statement from Agent Penton that Angelita's benefits had been restored in 1999.

"Witness bolstering," or "offering evidence solely for the purpose of enhancing a witness's credibility before that credibility is attacked," United States v. Scott, 267 F.3d 729, 734 (7th Cir.2001) (quotations omitted), is impermissible, at least in the first instance. Once the credibility of the witness has been challenged, however, such evidence may be offered to rehabilitate a witness in the eyes of the jury. See id.; see also FED. R. EVID. 608(a)(2) ("evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked"). The district court found that Angelita's character had been challenged and thus that rehabilitation evidence was proper.

Bonner disagrees. Because he did not object on this specific ground to the witnesses we are considering, we review this part of the case only for plain error. In fact, it would not matter if we were reviewing for abuse of discretion, because we find ample evidence in the record to support the district court's view. In his opening statement, after setting out his version of the events, Bonner's counsel stated: "Now, I don't expect Ms. Kettles to agree to that, because now she is receiving government benefits again, and she had been cut off in the past." He also suggested that Angelita would not confirm Bonner's story because she...