### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 2532

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

B ETTY P HILLIPS

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 CR 34

— James B. Zagel

, Judge

.

____________________

A RGUED F EBRUARY 12, 2014

— D ECIDED M ARCH 14, 2014

____________________

Before P OSNER

, F LAUM

, and H AMILTON

, Circuit Judges

.

F LAUM

, Circuit Judge

. Betty Phillips and her husband

Wayne perpetrated a tax fraud scheme in 2009 and 2010, in

which they filed tax returns claiming that they had overpaid

the IRS and were entitled to more than $800,000 in refunds.

In response to one of these tax returns, the IRS issued a re

‐

fund check for about $350,000, which the couple cashed. A

jury convicted both of them. This appeal concerns only Betty

Phillips. She challenges her conviction, arguing that the dis

‐2 No. 12

‐ 2532

trict court improperly admitted evidence, and that the gov

‐

ernment constructively amended the indictment and violat

‐

ed her right against self

‐ incrimination. We affirm.

I. Background

In 2009 and 2010, Betty and Wayne Phillips perpetrated a

partly successful tax fraud scheme. For tax year 2008, they

submitted two tax returns to the IRS. They submitted the

first return in March 2009 on behalf of a Betty Jean Phillips

Trust. Mrs. Phillips signed this tax return, and she was listed

as the trustee. This trust claimed income of $47,997. The

couple filed the second return in April on behalf of a Wayne

Phillips Trust. Wayne Phillips signed this tax return, but Bet

‐

ty Phillips was again listed as the trustee. This return report

‐

ed income of $1,057,585. Both returns claimed that all of the

trusts’ income had gone to pay fiduciary or trustee fees,

which meant that the trusts had no taxable income. Accord

‐ ingly, the returns claimed that the trusts had overpaid feder

‐

al taxes and were entitled to refunds. For 2008, the Wayne

Phillips Trust claimed a refund of $352,528, and the Betty

Phillips Trust claimed $15,999. In May 2009, the IRS issued a

refund check for $352,528. The check was made out to

“Wayne Phillips, Betty Jean Phillips—TTEE.” (TTEE stands

for trustee.) That month, Mr. and Mrs. Phillips both en

‐

dorsed the check and deposited it into a joint bank account.

These tax returns were fraudulent. The IRS had no record

of any taxes being paid by these trusts. On December 3, 2009,

the IRS served summonses on Mr. and Mrs. Phillips, requir

‐ ing them to give testimony and produce documents. During

the rest of the month, the couple withdrew from their bank

account the $244,137 remaining from their refund proceeds

by making withdrawals from thirteen different locations.No. 12

‐ 2532 3

The couple followed the same strategy for tax year 2009.

In April 2010, Wayne Phillips filed a 2009 tax return on be

‐

half of the Wayne Phillips Trust, this time naming himself as

trustee. This return listed income of $1,056,000 and claimed a

$352,000 refund. Betty Phillips changed her name to Samara

Beth El Bey and submitted a return in April on behalf of the

Samara Beth El Bey Trust. She again listed herself as trustee.

(For simplicity, we will refer to both returns in her name as

“the Betty Phillips Trust returns.”) This return claimed in

‐

come of $441,000 and sought a refund of $147,000.

The IRS never paid refunds to the Betty Phillips Trust for

2008 or 2009, nor to the Wayne Phillips Trust for 2009. The

IRS has no record of either Mr. or Mrs. Phillips inquiring in

‐

to the status of the refunds when the checks were not sent.

Betty and Wayne Phillips were indicted in early 2011 and

both proceeded to trial pro se. A jury convicted Betty Phil

‐ lips of conspiracy to defraud the government with respect to

claims in violation of 18 U.S.C. § 286, and of knowingly mak

‐ ing a false claim to the government in violation of 18 U.S.C.

§ 287. 1 The district court sentenced her to forty

‐ one months’

imprisonment and ordered her to pay (jointly with her hus

‐ band) $352,528 in restitution. She appealed.

II. Discussion

A. Constructive amendment

Betty Phillips argues that the government violated the

Grand Jury Clause of the Fifth Amendment by introducing

1 Wayne Phillips was also convicted of these two counts and of another

violation of 18 U.S.C. § 287. He appealed as well, but we dismissed his

appeal for failure to prosecute after he did not file an opening brief.4 No. 12

‐ 2532

evidence that invited the jury to convict her on different ba

‐

ses than those set forth in the indictment. She neither object

‐

ed below to any relevant statement by the government nor

raised the issue of constructive amendment to the indict

‐

ment, so we review only for plain error. United States v. Pres

‐

bitero

, 569 F.3d 691, 698 (7th Cir. 2009). For Betty Phillips to

prevail on a constructive amendment argument on plain

‐

error review, she must demonstrate that she probably would

have been acquitted if not for the amendment. Id.

A constructive amendment of an indictment occurs when

the evidence at trial “goes beyond the parameters of the in

‐

dictment in that it establishes offenses different from or in

addition to those charged by the grand jury.” United States v.

Pigee

, 197 F.3d 879, 886 (7th Cir. 1999) (citation omitted).

Such an amendment violates the Fifth Amendment and can

occur during the government’s presentation of evidence,

through faulty jury instructions, or both. Id. However, “not

all variations in proof that contradict or supplement verbi

‐

age in the indictment rise to the level of constructive

amendments.” Id. (citation omitted). Instead, the crime

charged in the indictment must be “materially different or

substantially altered at trial, [so that] it is impossible to

know whether the grand jury would have indicted for the

crime actually proved.” United States v. Trenell

, 290 F.3d 881,

888 (7th Cir. 2002) (citation omitted).

Mrs. Phillips was charged in counts one and two of the

indictment, which charged a conspiracy to defraud the gov

‐

ernment and presenting a false claim, respectively. The first

count specifically mentioned the Wayne Phillips Trust re

‐

turns from 2008 and 2009, and the second mentioned only

the 2008 Wayne Phillips Trust return. The indictment did notNo. 12

‐ 2532 5

mention the Betty Phillips Trust returns. The government

introduced all four tax returns during trial, however. And

during closing arguments, the government contended that

the conspiracy in count one included all four tax returns. The

government argued that the scheme inherent in all four re

‐

turns was the same, and that the unusual similarities among

the four returns were proof of the conspiracy. Mrs. Phillips

argues that the indictment was too narrow to permit intro

‐

duction of the returns for the Betty Phillips Trust, because it

specifically mentioned only the Wayne Phillips Trust.

This argument is unpersuasive because the indictment

can be read naturally to include all four tax returns. The first

sentence of the indictment describes a conspiracy to “submit

false, fictitious, and fraudulent claims” that lasted from

March 2009 to April 2010. These dates include the returns

submitted for both the Wayne Phillips Trust and the Betty

Phillips Trust. The fact that the Wayne Phillips Trust returns

are mentioned in the indictment does not preclude the gov

‐

ernment from relying upon extremely similar evidence that

also falls within the charged dates and of which Betty Phil

‐ lips clearly had notice. See Presbitero

, 569 F.3d at 700 (empha

‐ sizing importance of notice to defendant in constructive

amendment context). Therefore, this was not a situation

where “the proof at trial establish[ed] offenses different from

or in addition to those charged by the grand jury.” Pigee

, 197

F.3d at 886. Indeed, “admission of evidence intricately relat

‐

ed to the charged crimes

... does not constructively amend

the indictment.” United States v. Alhalabi

, 443 F.3d 605, 614

(7th Cir. 2006). This case is similar to Alhalabi

, a wire fraud

case in which the government presented evidence about

wire transfers other than the ones charged in the indictment,

but which followed the same fraudulent pattern. Id. We6 No. 12

‐ 2532

found that no constructive amendment occurred because

“[t]he government simply supplied more technical details

that easily fit with the allegations in the indictment.” Id.

Here, Betty and Wayne Phillips each submitted two returns

that followed the same fraudulent pattern, and the Betty

Phillips Trust returns merely supplied “more technical de

‐

tails” about the mechanics and depth of the conspiracy. Ac

‐ cordingly, we reject Mrs. Phillips’ argument that the gov

‐

ernment constructively amended the indictment.

B. Admission of the Betty Phillips Trust tax returns

The government moved in limine to admit the Betty Phil

‐ lips Trust returns. It argued that the returns were direct evi

‐

dence of the conspiracy, or in the alternative, that they were

admissible pursuant to Federal Rule of Evidence 404(b),

which prohibits evidence of a defendant’s other acts to show

her propensity for bad behavior, but permits such evidence

when offered to show motive, intent, knowledge, etc. Mrs.

Phillips objected to the admission of the returns at trial, but

the district court summarily overruled her objection.

We review evidentiary decisions for abuse of discretion

and reverse only for harmful errors. United States v. Vargas

,

689 F.3d 867, 873, 875 (7th Cir. 2012). The Betty Phillips Trust

returns were direct evidence of the conspiracy. As noted

above, the indictment charged a conspiracy between March

2009 and April 2010. It does not matter here that the Betty

Phillips Trust returns were not mentioned in the indictment,

because they still pointed directly towards the existence of a

conspiracy by virtue of their similarities to the Wayne Phil

‐ lips Trust returns. “Evidence of overt acts which occurred

after a conspiracy was formed and which were related to the

object of the conspiracy is admissible regardless of whetherNo. 12

‐ 2532 7

the overt acts are charged in the indictment.” United States v.

Harris

, 542 F.2d 1283, 1300 (7th Cir. 1976); accord United States

v. Elizondo

, 920 F.2d 1308, 1319 (7th Cir. 1990). Of course, di

‐

rect evidence is almost always admissible, and Betty Phillips

does not make the Rule 403 argument that would be re

‐ quired to exclude direct evidence. Thus, she could prevail

only if we found—contrary to our conclusion above—that

the Betty Phillips Trust returns were exclusively 404(b) evi

‐

dence and not direct evidence at all.

Finally, Mrs. Phillips objects to the district court’s failure

to give a limiting instruction. This argument is unpersuasive

for multiple reasons. Most elementally, she did not request a

limiting instruction below, and limiting instructions are not

required until they are requested. United States v. Akinrinade

,

61 F.3d 1279, 1284 (7th Cir. 1995). In sum, the district court

did not abuse its discretion in admitting the tax returns.

C. Betty Phillips’ right against self

‐ incrimination

IRS Special Agent Gregory Howard served a summons

on Wayne Phillips on December 3, 2009, requesting records

and documentation. Agent Howard testified that he asked

two other IRS agents to serve a summons on, and interview,

Betty Phillips. Both summonses were returned in the same

envelope on December 8, he testified. These dates corre

‐ sponded to the couple’s dash to drain their joint bank ac

‐

count. During closing arguments, the government contend

‐

ed that Betty and Wayne Phillips would not have made rap

‐

id withdrawals if they had had nothing to hide.

Mrs. Phillips claims that the government’s questioning of

Agent Howard commented on her silence in violation of her

Fifth Amendment right against self

‐ incrimination. She ar

‐8 No. 12

‐ 2532

gues that Agent Howard spoke of sending agents to “at

‐ tempt” to interview her, which Mrs. Phillips claims subtly

implied that she had refused to speak. She did not object to

Howard’s testimony or to the prosecutor’s statement at clos

‐ ing, so we review only for plain error. United States v. Della

Rose

, 403 F.3d 891, 906 (7th Cir. 2005). Of course, a defendant

has “a constitutional right to say nothing at all about the al

‐ legations.” United States ex rel. Savory v. Lane

, 832 F.2d 1011,

1017 (7th Cir. 1987). But the government violated her right

only if it “manifestly intended to refer to [her] silence, or

... [if] the remark was of such a character that the jury would

naturally and necessarily take it to be a comment on [her]

silence.” United States v. Andreas

, 216 F.3d 645, 674 (7th Cir.

2000) (citation and internal quotation mark omitted).

In light of what happened at Mrs. Phillips’ trial, her ar

‐

gument is unconvincing. The government’s explanation for

Agent Howard’s testimony—to establish that the couple

started withdrawing cash as soon as they became aware of

the IRS investigation—is logical and is reflected in the gov

‐

ernment’s closing argument. The government intended to,

and did, point out suspicious conduct and timing, rather

than comment on Mrs. Phillips’ invocation of her right

against self

‐ incrimination. Nor would a jury be likely to

view Agent Howard’s testimony as commenting on her si

‐

lence. Indeed, the evidence does not even tell us whether the

agents actually spoke to Mrs. Phillips, and if they did, what

she did or did not say. Nor did the record clearly suggest

that she was silent. We therefore conclude that the govern

‐

ment did not violate her right against self

‐ incrimination.

III. Conclusion

We A FFIRM Betty Phillips’ conviction.