In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1384

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRIAN D. MCGOWAN,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 03 CR 350—John F. Grady, Judge.

ARGUED FEBRUARY 24, 2009—DECIDED DECEMBER 22, 2009

Before ROVNER, WOOD and SYKES, Circuit Judges.

ROVNER, Circuit Judge. A jury convicted Brian D.

McGowan of eighteen counts of wire fraud, in violation

of 18 U.S.C. § 1343, and one count of investment

advisor fraud, in violation of 15 U.S.C. §§ 80b-6(2) and 80b17. He was sentenced to a term of sixty-six months’

imprisonment and was ordered to pay restitution in

the amount of $182,470.12. On appeal, he disputes the

district court’s decision to allow the main witness
2 No. 08-1384

against him to testify by videotaped deposition. He

also challenges the charges against him on statute-oflimitations grounds. We affirm.

I.

In 1986, when working as a warehouse manager in a

discount department store, Camille LaMie was hit by a

forklift. Although her injuries prevented her from returning to that job, she attempted to work at another

store for a brief time as a customer service representative. Because her injuries made walking difficult, she left

that job as well. Ultimately, she underwent spinal surgery

and bone grafts, spending a year in a body cast. She was

unable to collect workers’ compensation because the

discount store had declared bankruptcy. From the time

of her injury until her father’s death in 1993, LaMie lived

on food stamps, Social Security Supplemental Income

and Medicaid. After her father died, she inherited approximately $266,000 and a house in Chicago. All of

her public assistance ended with her receipt of the inheritance and LaMie relied entirely on that money for her

support.

By 1997, LaMie was fifty-four years old, unemployed,

medically uninsured, and suffering from a variety of

chronic medical problems including diabetes,

hypothyroidism, chronic obstructive pulmonary disease,

cirrhosis of the liver caused by an autoimmune disorder,

clinical depression, diabetic neuropathy and hepatic

failure. Her luck was about to get worse. Because she

lacked health insurance, she became increasingly con-
No. 08-1384 3

cerned about her declining health and her ability to pay

her ongoing medical expenses. She had been investing

her money conservatively in certificates of deposit, but

now sought to increase her rate of return and obtain a

steady monthly income while at the same time keeping

her principal safe. In September 1997, a friend introduced LaMie to Brian McGowan, a financial advisor.

LaMie told McGowan that she needed no-risk investments and that she also needed health insurance.

McGowan told her he would keep her principal safe and

obtain health insurance for her. He told LaMie that his

clients included Walter Payton, Michael Jordan and

Michael Jordan’s mother. In fact, he had never

represented any of these people.

LaMie researched McGowan’s background to the best

of her ability and decided to invest the bulk of her inheritance with him. She paid him an up-front “consulting fee”

of $2,500 and signed a customer agreement. Between

September and December of 1997, LaMie invested

$260,000 with McGowan. Needless to say, McGowan did

not keep LaMie’s principal safe. He told her he was

placing $100,000 in Cypress Bioscience, a drug company

that he characterized as “safe.” He invested $8,200 in a

commodities account that he intended to trade daily,

which he told LaMie eliminated any risk. He banked

$30,000 of her money in a “no risk” real estate deal,

and told her he was placing $60,000 in Chicago Capital

Holdings. He claimed to invest another $60,000 in an

unspecified manner. McGowan did invest some of

LaMie’s money in real estate: he bought a house for

himself in New Mexico. He invested $90,000 in Cypress
4 No. 08-1384

Bioscience and placed $8200 in a commodities account,

but did not protect LaMie’s principal or make any other

investments. Nor did he obtain health insurance for her

as he promised. When LaMie tried to obtain financial

statements from McGowan to check on the status of

her investments, he promised to send them but never

did. The information he did provide was misleading

and uninformative.

LaMie became increasingly suspicious as McGowan

continued to evade her questions and requests for

reports on the status of her investments. After consulting several friends regarding her problems with

McGowan, she contacted the FBI in April 1998. The

FBI directed her to call McGowan and record her conversations with him. FBI agents scripted questions for

LaMie to ask and supplied her with blank tapes and

recording equipment. Between April and July of 1998,

LaMie recorded nineteen telephone calls with McGowan.

During those calls, McGowan lied repeatedly about the

status of LaMie’s investments. He told her that her

money had been invested in a number of ventures including Cypress Bioscience, Maximum Video, Navarre,

Chicago Capital Holdings, and a Ramada Inn. He

also told her a small amount of her money was in a commodities account, and in perhaps his most creative lie,

he told her some of her money was invested in a new

production of the musical “Annie.” Although McGowan

had placed some of LaMie’s money in Cypress Bioscience,

the investment was not in the amount he promised.

Everything else, except for the commodities account, was

a pure fabrication, as he admitted at trial. McGowan
No. 08-1384 5

also lied when he told LaMie that he was keeping her

principal safe and that her investments were generating

interest income. He lied when she asked him to liquidate

her investments and return her money, and he lied

about obtaining health insurance for her.

 All of the testimony from LaMie came into the trial

through Federal Rule of Criminal Procedure 15(a) videotaped depositions that were recorded because of

LaMie’s precarious health. LaMie resided in South

Carolina at the time of the trial, which was held in Chicago. LaMie’s doctors believed that both travel and testifying at trial presented great risks to her health. The

district court found that she was unavailable for trial

because of her health problems, and her videotaped

deposition testimony was admitted over McGowan’s

objections. A jury found McGowan guilty of eighteen

counts of wire fraud based on the misrepresentations

he made during phone calls spanning from April 13,

1998 to June 29, 1998. The jury also found McGowan guilty

of one count of investment advisor fraud. McGowan

appeals.

II.

On appeal, McGowan contends that the admission of

LaMie’s videotaped depositions violated Federal Rule

of Evidence 804(a)(4) and his constitutional rights under

the Confrontation Clause. He also argues that the

court erred when it denied his motion to dismiss the

indictment on statute-of-limitations grounds. He maintains that his crimes were complete more than five years
6 No. 08-1384

prior to the filing of the indictment, and that 18 U.S.C.

§3282 requires that prosecutions for wire fraud be

brought within five years of the offense.

A.

The grand jury returned the indictment against

McGowan on April 3, 2003. In March 2004, because LaMie

suffered from poor health, the government moved to

preserve her testimony pursuant to Federal Rule of Criminal Procedure 15(a). That rule provides: 

A party may move that a prospective witness be

deposed in order to preserve testimony for trial. The

court may grant the motion because of exceptional

circumstances and in the interest of justice. If the court

orders the deposition to be taken, it may also require

the deponent to produce at the deposition any designated material that is not privileged, including any

book, paper, document, record, recording, or data.

Fed. R. Crim. P. 15(a). In support of the motion, the government submitted a letter from LaMie’s physician, Dr.

George Sandoz, describing her medical conditions. Dr.

Sandoz, a neurologist and opthamologist, had been

treating LaMie since 2001. According to Dr. Sandoz,

LaMie was “almost bedridden,” required oxygen twentyfour hours a day, and suffered from severe diabetes,

diabetic neuropathy and biliary cirrhosis, among other

things. LaMie took long-acting narcotics to control

her pain, according to Dr. Sandoz. He opined that it

would not be safe for LaMie to travel because of her
No. 08-1384 7

medical conditions. After a hearing, the court granted

the government’s motion.

LaMie was deposed on May 6, 7, 26, and 27, 2004, in

South Carolina. McGowan and his lawyer were present

at the videotaped depositions and McGowan’s lawyer

cross-examined LaMie extensively. At a June 9, 2004

status call, the parties discussed LaMie’s availability

for trial. McGowan’s lawyer intended to challenge any

suggestion that LaMie was unavailable for trial. During

the depositions, he learned that LaMie owned a car and

had recently renewed her driver’s license. Based on this

and other information from the depositions, he believed

that prior representations about LaMie’s health were

exaggerated. He told the court he wished to have

another physician review Dr. Sandoz’s assessment

of LaMie. The government maintained that LaMie

could not travel to Chicago to testify because of her

extensive health-related limitations. The government

also clarified that LaMie had renewed her driver’s

license by mail and had driven the car only once in the

past year, and only a very short distance. The court ordered briefing on the issue.

Along with its brief, the government submitted two

affidavits from LaMie’s physicians, one from Dr. Sandoz

and one from Dr. Charles Busse. Dr. Sandoz again

asserted that several chronic health conditions made it

medically unsafe for LaMie to travel or to testify at a

trial. Dr. Sandoz described LaMie’s severe diabetes and

opined that stress and changes in schedule could cause

serious problems with her insulin treatment, and that she
8 No. 08-1384

could lose consciousness or even lapse into a coma as a

result. Her diabetic neuropathy caused her constant

pain that could be exacerbated by stress or physical

activity. A disease called diffuse lipomatosis affected

her lungs and required her to use oxygen all day every

day, a condition that could also be worsened by stress

or by the physical exertion required in travel. LaMie

also had chronic liver problems, according to Dr. Sandoz,

that could progress to the point of a life-threatening

illness if she experienced increased emotional or physical

stress. Dr. Sandoz stressed that LaMie’s conditions were

chronic, and that there was no reasonable likelihood that

her condition would improve to a degree that would

render travel safe.

Dr. Busse, a general practitioner who treated LaMie and

had examined her two months prior to signing his affidavit, also characterized LaMie’s conditions as chronic.

According to Dr. Busse, LaMie suffered from diabetes,

hypothyroidism, chronic obstructive pulmonary disease,

cirrhosis of the liver and clinical depression. He stated

that LaMie had also been diagnosed as suffering from

multiple sclerosis but conceded that he had not treated

her for that condition and could not assess whether

that additional condition would affect her ability to

travel. Given the conditions for which he did treat LaMie,

Dr. Busse believed she could travel to Chicago with

appropriate accommodations. He declined to express

an opinion on whether those arrangements were practicable. However, he also asserted that courtroom testimony would likely aggravate her chronic medical conditions. The government also submitted portions of LaMie’s
No. 08-1384 9

deposition testimony describing her multiple health

issues including allergies, asthma, lung failure, heart

failure, cirrhosis of the liver, multiple sclerosis, a blocked

heart valve, diabetes and other conditions.

In response to the government’s submission, McGowan

conceded that LaMie was “unavailable” as that term is

used in Federal Rule of Evidence 804(b)(1). Federal Rule

of Evidence 804(a) states that a person who “is unable to

be present or to testify at the hearing because of death or

then existing physical or mental illness or infirmity” is

unavailable as a witness. Rule 804(b)(1) provides that

certain out-of-court statements are not excluded by the

hearsay rule if the declarant is “unavailable as a witness.”

As applicable here, Rule 804(b) states that “[t]estimony

given as a witness at another hearing of the same or a

different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony

is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive

to develop the testimony by direct, cross, or redirect

examination” is not excluded by the hearsay rule if the

declarant is unavailable as a witness. But having

conceded LaMie’s unavailability, McGowan argued that

the use of LaMie’s deposition at his trial would violate

his Sixth Amendment right to confront a witness against

him because he had not had an opportunity to question

LaMie regarding additional documents produced by the

government. McGowan also complained that he was still

waiting for the government to produce further documents

from the FBI documenting the agency’s directions to LaMie
10 No. 08-1384

in carrying out the recorded phone calls. McGowan

acknowledged that the confrontation problems could be

cured by further depositions. On August 5, 2004, the

court granted the government’s motion to admit LaMie’s

deposition at trial and denied McGowan’s motion to

take a further deposition of LaMie.

In December 2004, McGowan renewed his objection to

the court’s unavailability ruling. LaMie had taken a fourhour interstate car trip with friends, and McGowan

argued again that LaMie’s health problems had been

exaggerated. The court held an evidentiary hearing where

one of the friends who accompanied LaMie on the trip

testified. The court found that testimony consistent

with the declarations of Drs. Sandoz and Busse. The

court then allowed McGowan to depose Drs. Sandoz and

Busse, but did not grant McGowan’s request for an independent medical examination of LaMie. Dr. Sandoz

testified that LaMie’s health had deteriorated in the last

year, that she was not capable of traveling by plane to

Chicago, and that minimal changes in her routine could

have “devastating effects” on her condition. On June 7,

2005, the court again found LaMie unavailable for trial,

but invited McGowan to move for an additional deposition of LaMie.

After the government produced additional records, the

court allowed a December 5, 2005 deposition of LaMie.

On October 16, 2006, with trial approaching, McGowan

moved for a current determination of LaMie’s availability for trial, and renewed a previously filed

motion to suppress LaMie’s deposition testimony. On
No. 08-1384 11

November 22, 2006, the court ordered a current report on

LaMie’s health, noting that in order to use LaMie’s deposition in lieu of her personal appearance, the court must

determine that the use of the deposition was still

medically necessary. In response to McGowan’s motion

to suppress, the court allowed yet another deposition of

LaMie. The deposition took place on December 18, 2006,

and on January 3, 2007, the government submitted a

report on LaMie’s current health status. That report

included a December 11, 2006 letter from Dr. Sandoz

opining that LaMie’s condition had only deteriorated

since his last report and that any trip would be

detrimental to her health.

On January 8, 2007, the first day of trial, the parties again

discussed LaMie’s unavailability. Noting that Dr. Sandoz

had originally characterized most of LaMie’s medical

conditions as chronic with no reasonable likelihood that

they would improve, the court found that the most recent

letter from Dr. Sandoz indicated that LaMie had not

improved since the July 2004 report. The court concluded again that LaMie was unavailable for trial:

It is clear from Dr. Sandoz’ recent letter that he

regards Ms. LaMie as not having improved at all

from the time of his July 2004 report. His opinion is

the same. There is no surprise about it. . . . If I was

right in 2005, I’m still right. I’m satisfied with that.

And I say that knowing that there will be surgical

attention paid to my ruling on appeal should an

appeal be necessary. But I see no alternative. I think

that the alternative would be cruel to this woman
12 No. 08-1384

to require her to come here in light of this danger to

her health. And I’m not talking about discomfort,

I’m not talking about inconvenience; I’m talking

about the risk of serious damage to her health that

is clearly reflected in this doctor’s analysis. 

Tr. at 19, January 8, 2007. The court therefore allowed the

government to use LaMie’s videotaped deposition at trial.

McGowan objected to the use of the depositions throughout the trial, contesting the finding of unavailability and

also arguing that the use of the videotaped depositions

violated his Sixth Amendment confrontation rights. The

court rejected those claims each time. On one occasion,

the court noted that “the jury is just as able to

evaluate [LaMie’s] demeanor from this videotape as

they would be if she were present live in the courtroom

giving this same testimony.” Tr. at 810. See also Tr. at 811

(where the court remarked, “I don’t think the

jury would have any better view of her behavior while

testifying if she were doing this same thing here in open

court that she’s doing on the videotape.”). McGowan’s

attorney requested a mistrial later in the proceedings

when he believed his client was prejudiced by technical

difficulties with the videotapes. The court responded to

his objections thoroughly and thoughtfully:

This is a very attentive jury. They are taking notes,

they’re reading these transcripts along with the tapes,

they’re paying close attention to the videotape. I’ve

never seen a jury that was more attentive. . . . There

isn’t a single juror here, and I have been looking at

all of them, who is anything other than completely
No. 08-1384 13

absorbed in what is being seen and heard in this

courtroom. They are taking these glitches with the

same good humor the rest of us are, and they’re

intelligent enough to realize that there is a great

difference between the technical difficulties

attending the playing of the video and the substance

and the merits of the testimony that’s being portrayed

on the video. . . . I am pleased and in fact a little bit

surprised at how good the video is in terms of giving

one a real feel for Ms. LaMie. It’s almost—not quite,

I agree—but it’s almost like having her here in the

courtroom. I mean, she’s just as life-like as she can

be. . . . [T]he jury is getting substantially the same

look and feel for her as they would if she were here

in person testifying in the courtroom.

Tr. at 968-69. The court remarked that the technical difficulties were minimal albeit annoying, but did not undermine the defense’s cross-examination of LaMie. The

court therefore denied the motion for a mistrial.

On a third objection during trial, the court found again

that the videotaped depositions provided an adequate

substitute for LaMie’s live testimony:

I’ve watched very carefully, and I’ve listened very

carefully, and I’ve come to certain conclusions, and I’ve

given you some of them. I think that her presence

here in person would have been essentially no

different than having her present virtually life-size on

that tape recorder. I don’t know what would have

been shown that wasn’t shown on the tape. You can

see every facial expression, you can see her eyes[.] . . .
14 No. 08-1384

What more would have been gained by having

her hobble in here and get up on the witness stand

and do the same thing? I frankly don’t see anything

that would have been gained. The video deposition

was as good as her physical presence in the courtroom, in my opinion[.] 

Tr. at 1590. The court concluded that “the defendant was

not prejudiced by use of the deposition.” Tr. at 1590.

On appeal, McGowan argues that the district court

violated Federal Rule of Evidence 804(a)(4) and the Confrontation Clause in declaring LaMie “unavailable” for

trial, admitting her deposition testimony into evidence,

denying his requests for an independent medical examination of LaMie, and denying a request for an

evidentiary hearing on the question of LaMie’s unavailability at the time of trial. We review a district court’s

decision to admit deposition testimony based on unavailability for abuse of discretion. United States v. Donaldson,

978 F.2d 381, 392 (7th Cir. 1992). Interpretation of the

Confrontation Clause is a legal question that we review de

novo. United States v. Van Sach, 458 F.3d 694, 701 (7th Cir.

2006); United States v. Smith, 454 F.3d 707, 714 (7th Cir.

2006). When testimonial evidence is at issue, the Confrontation Clause of the Sixth Amendment requires that the

government demonstrate that the witness is unavailable

for trial and that the defendant had a prior opportunity

for cross-examination. Crawford v. Washington, 541 U.S. 36,

68 (2004).

We begin with the timeliness and soundness of the

district court’s determination that LaMie was unavailable
No. 08-1384 15

to testify due to “then existing physical or mental illness

or infirmity.” Fed. Evid. 804(a)(4). The government

bears the burden of demonstrating that its witness is

unavailable to testify at trial. Donaldson, 978 F.2d at 392;

Burns v. Clusen, 798 F.2d 931, 936-37 (7th Cir. 1986).

McGowan first complains that the district court relied

on a finding of unavailability made in 2005 to hold that

LaMie was unavailable for trial on January 8, 2007. On

the morning that the trial was scheduled to begin,

McGowan requested an evidentiary hearing based on

what he characterized as new evidence regarding LaMie’s

medical condition. Citing observations of LaMie at her

December 18, 2006 deposition, the much earlier letter from

Dr. Busse, and the out-of-state car trip that LaMie took in

2004, McGowan claimed that LaMie’s condition had

improved to such an extent that she was available for

trial. According to McGowan’s counsel, LaMie was able

to walk into her attorney’s office for the December 18

deposition and was even able to scale nine steps to do

so. Additionally, counsel remarked that LaMie no longer

required oxygen and was in fact smoking during breaks

in the deposition. The government confirmed that

LaMie smoked during breaks, but argued that LaMie

entered the building with great difficulty and with assistance. Relying on the Burns case, McGowan argued that

a new evidentiary hearing was required to demonstrate

that LaMie remained unavailable to testify. The court, as

we noted above, had already ordered the government

to procure another report from Dr. Sandoz regarding

LaMie’s current condition. Dr. Sandoz’s resultant letter

was signed on December 11, 2006, approximately four
16 No. 08-1384

weeks prior to the beginning of the trial and one week

prior to the deposition. Dr. Sandoz had most recently

examined LaMie on October 31, 2006, approximately two

months prior to the start of the trial. As we noted above,

Dr. Sandoz reaffirmed his earlier diagnoses of LaMie’s

multiple chronic conditions, and opined that she was

unable to take any kind of trip, and had only deteriorated

since the time of his 2005 assessment of her to the court.

He remarked that her mobility was so impaired that it

was now almost impossible for her to visit her local

doctors every few months for the treatment of her conditions.

The court did not abuse its discretion in determining

that LaMie was unavailable to testify at the January 2007

trial. As the district court repeatedly noted, LaMie’s

medical problems were severe and chronic. Her doctors

did not expect her condition to improve and in fact twice

indicated that, as time passed, LaMie had grown even

more ill and less able to endure the rigors of interstate

travel and live testimony. No evidentiary hearing was

needed on the day of trial because, even assuming that

all of the assertions made by McGowan’s counsel concerning LaMie’s abilities at the December 18 deposition

were true, the government still met its burden of demonstrating that LaMie was not able to travel from her home

in South Carolina to Chicago and endure the rigors of

testifying at trial without seriously damaging her

already precarious health. The court did not rely on stale

information in reaching this conclusion but rather relied

on the consistency of the reports regarding LaMie’s

deteriorating health over time, including a report of her
No. 08-1384 17

condition a few months before trial. See Donaldson, 978

F.2d at 393. Two months before trial, LaMie was

morbidly obese, suffering from brittle diabetes, peripheral

neuropathy, biliary cirrhosis, lipomatosis and other

severe and chronic conditions. By all accounts, her

mobility was severely limited. Her many problems were

not expected to improve in a few months’ time. See United

States v. Campbell, 845 F.2d 1374, 1377-78 (6th Cir. 1988)

(court did not abuse its discretion in finding without a

hearing that an elderly witness was unavailable to

testify when the court had found two weeks earlier

that exceptional circumstances justified taking the witness’s deposition; “it was highly unlikely that an elderly

invalid would undergo a miraculous rejuvenation

during the two-week interval”). LaMie’s ability to travel

locally to her lawyer’s office for a deposition did not

change the analysis of her ability to travel interstate and

endure courtroom testimony. There was nothing to be

gained by delaying the trial to hold an additional evidentiary hearing on an issue over which there was no serious

dispute. The court had already conducted an evidentiary

hearing into the 2004 out-of-state car trip and there was

no new information to examine regarding that trip.

McGowan’s lawyer had been allowed an opportunity

earlier to cross-examine Dr. Sandoz, and his opinion had

not changed. In short, the district court’s January 8, 2007

assessment of LaMie, based on the 2005 assessment and

supplemented by Dr. Sandoz’s December 11, 2006 letter,

was timely and sound given the severe, chronic and

deteriorating nature of the medical problems from which

LaMie suffered.
18 No. 08-1384

McGowan’s reliance on Burns is misplaced. The

witness in that case was deemed unavailable to testify

because of mental illness. At a hearing on the issue, the

witness’s doctor referred to the applicable disorder as

both acute schizophreniform disorder and schizophrenia,

conditions with markedly different prognoses. As we

observed on appeal, the former is an acute condition

expected to last more than two weeks and less than six

months while the latter could last considerably longer.

The witness had been admitted to a hospital psychiatric

ward in September 1980 in a “catatonic stupor with

hallucinations and delusions.” Burns, 798 F.2d at 938. The

trial court found in January 1981 that the witness

suffered from acute schizophreniform disorder. By the

time of the March 1981 trial, a different judge had been

assigned to hear the case. That judge simply adopted

the earlier finding and determined that the witness remained unavailable, even though six months had passed

since the initial diagnosis and the illness was not

expected to last more than six months. Moreover, new

information had become available regarding the

witness’s mental state but the trial court made no up-todate findings before concluding the witness remained

unavailable. Burns, 798 F.2d at 938-39.

We noted in Burns that in determining unavailability

of a witness, the court must consider both the severity

and the duration of the illness. 798 F.2d at 937. “The

duration of the illness need only be in probability long

enough so that, with proper regard to the importance of

the testimony, the trial cannot be postponed.” Id. We also

indicated in Burns the importance of making a final
No. 08-1384 19

determination regarding witness availability based on upto-date evidence about the witness’s physical or mental

condition at or near the time of trial. 798 F.2d at 939. If

the witness’s condition is temporary or of a short-term

nature, we remarked that the court should consider

whether to grant a continuance to allow the witness to

testify. Id.

Unlike the witness in Burns, LaMie’s illnesses are both

severe and chronic. Her doctors’ opinions never changed:

she was seriously ill when the case began and her condition only deteriorated over time. The doctors advised

and the court found that the stress of travel and testifying

could seriously worsen her condition. Unlike the

diagnosis of a temporary mental illness, LaMie’s illnesses

were chronic, unlikely to change over time except to

worsen, and in fact did worsen over the time that passed

between the indictment and trial. In this context, the

court’s finding of LaMie’s unavailability was timely,

sound, and well within the court’s discretion.

Nor was McGowan’s Sixth Amendment right to

confront the witnesses against him compromised by

the procedure employed by the district court. We have

already concluded that the court did not err in finding

LaMie unavailable for trial. McGowan could not

seriously challenge the other part of the analysis, whether

he had an adequate opportunity for cross-examination.

Crawford, 541 U.S. at 68. McGowan was able to fully crossexamine LaMie on several different occasions, during

depositions to preserve her core testimony and during

later depositions to address issues raised when addi-
20 No. 08-1384

The government argued that, if we found that the district 1

court erred in admitting the tapes, the error was harmless

considering the evidence against McGowan. In assessing the

strength of the case against McGowan, the government asked us

to consider the videotapes themselves. We are hard-pressed to

understand this circular argument. In determining whether

evidence admitted in error is harmless, we consider the

strength of the remaining evidence against the defendant, among

other things. “An error is harmless when the reviewing court

is convinced that the jury would have convicted even absent the

error.” United States v. Conner, 583 F.3d 1011, 1025 (7th Cir. 2009)

(emphasis added); United States v. Ozuna, 561 F.3d 728, (7th Cir.

2009) (same). The government contends that a videotaped

(continued...)

tional documents were produced to the defense.

Moreover, the district court noted several times that the

videotapes allowed the jury to fully experience LaMie’s

testimony, to view her demeanor, to hear her voice and to

determine her credibility. We have already held that

there is no Confrontation Clause violation when admitting fully cross-examined testimony preserved by a

properly conducted Rule 15 deposition, and that this

holding had not changed after Crawford. United States v.

Cannon, 539 F.3d 601, 604 (7th Cir. 2008), cert. denied, 129

S. Ct. 2013 (2009); Donaldson, 978 F.2d at 392-93. We thus

see no error in the court’s decision to allow the use of

the videotapes nor in the court’s conclusion that

McGowan was not prejudiced by the use of the videotapes.

See United States v. Presbitero, 569 F.3d 691, 703-04 (7th

Cir. 2009) (errors arising under the Confrontation Clause

are subject to harmless error analysis).1
No. 08-1384 21

(...continued) 1

deposition should be exempt from this well-worn rule because

of its unique value. We see no reason to change this wellestablished rule to create an exception for videotaped depositions. If they were admitted in error, they may not be considered in assessing the strength of the case against the defendant. See also Neder v. United States, 527 U.S. 1, 18 (1999) (the

harmless-error inquiry must be essentially: “Is it clear beyond a

reasonable doubt that a rational jury would have found the

defendant guilty absent the error?”).

B.

McGowan next argues that the district court erred when

it denied his motion to dismiss the indictment under

18 U.S.C. § 3282. McGowan contends that the indictment

was returned more than five years after the completion

of the crime, exceeding the five-year limitations period.

We review de novo the district court’s denial of a motion

to dismiss based on statute-of-limitations grounds, deferring to the district court’s factual determinations. United

States v. Useni, 516 F.3d 634, 655 (7th Cir. 2008); United

States v. Are, 498 F.3d 460, 464 (7th Cir. 2007); United

States v. Barnes, 230 F.3d 311, 314 (7th Cir. 2000). The

statute of limitations for wire fraud is five years. United

States v. Tadros, 310 F.3d 999, 1006 (7th Cir. 2002).

The government filed the indictment on April 3, 2003,

charging McGowan with eighteen counts of wire fraud

and one count of investment advisor fraud. The indictment

alleged that McGowan’s scheme to defraud LaMie ran

from approximately September 1997 through July 1998. In
22 No. 08-1384

furtherance of that scheme, the indictment alleged that

McGowan made eighteen telephone calls between

April 13, 1998 and June 29, 1998 to LaMie, all within

five years of the filing of the indictment. Those eighteen

calls serve as the basis for the eighteen counts of wire

fraud. McGowan argues that the indictment came too

late because LaMie contacted the FBI in March 1998,

after she had invested her money with him. All of the

phone calls took place after the government knew about

the fraud and after McGowan had obtained LaMie’s

money. McGowan maintains that the calls could not have

been made in furtherance of a scheme about which the

authorities were already aware. According to McGowan,

because LaMie was already suspicious and had already

contacted law enforcement, nothing he said in those calls

could have lulled LaMie into a false sense of security

regarding her investments, and thus could not have

furthered a scheme to defraud LaMie.

In order to prove its wire fraud case against McGowan,

the government was obliged to prove McGowan’s participation in a scheme to defraud, his intent to defraud, and

his use of the wires in furtherance of the fraudulent

scheme. United States v. Roberts, 534 F.3d 560, 569 (7th Cir.

2008), cert. denied, 129 S. Ct. 1028 (2009); Tadros, 310 F.3d

at 1006. Wire communications that lull a victim into a

false sense of security after the victim’s money had

already been obtained, or that assist the defendant in

avoiding detection may be sufficient to further a scheme.

United States v. O’Connor, 874 F.2d 483, 486-87 (7th Cir.

1989). Both the Supreme Court and this circuit have

recognized “that calls made after the time that goods
No. 08-1384 23

have been fraudulently obtained can nevertheless

further the fraudulent scheme by making detection or

apprehension less likely.” O’Connor, 874 F.2d at 486 (citing

United States v. Lane, 474 U.S. 438, 451-52 (1986); United

States v. Sampson, 371 U.S. 75, 81 (1962); United States v.

Eckhardt, 843 F.2d 989, 994 (7th Cir. 1988)). The Supreme

Court has also rejected the contention that a mailing that

actually contributes to uncovering the fraudulent scheme

cannot supply the mailing element of the mail fraud

offense. Schmuck v. United States, 489 U.S. 705, 715 (1989).

Nor does it matter whether the scheme succeeds. Tadros,

310 F.3d at 1006. Rather, the relevant question is whether

the wire communication “is part of the execution of the

scheme as conceived by the perpetrator at the time,

regardless of whether the [wire communication]

later, through hindsight, may prove to have been counterproductive and return to haunt the perpetrator of the

fraud.” Schmuck, 489 U.S. at 715.

Under those standards, the eighteen calls, which were

designed by McGowan to lull LaMie into a false sense

of security, were sufficient to meet the element of furthering the scheme. The lulling was part of McGowan’s

investment advisor fraud, and so the eighteen calls bring

that count well within the period of limitations. Because

those calls all came within five years of the filing of the

indictment, the court was correct to reject McGowan’s

motion to dismiss on statute of limitation grounds.

AFFIRMED.

12-22-09