In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-1449 & 07-1577

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ESSIE JACKSON and

JOE JACKSON,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Indiana, South Bend Division

No. 06 CR 32—Robert L. Miller, Jr., Chief Judge.

ARGUED JANUARY 25, 2008—DECIDED OCTOBER 14, 2008

Before FLAUM, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge. Defendants-appellants Essie

Jackson and Joe Jackson were convicted of mail fraud and

conspiring to commit mail fraud along with their codefendant, Angela Blackwell Jackson, who is not a party

to this appeal. They appeal their convictions on a variety

of grounds. Finding no merit in any of their challenges,

we affirm.
2 Nos. 07-1449 & 07-1577

I.

The defendants were convicted of engaging in a conspiracy to defraud insurance companies by submitting

inflated claims in connection with three different motor

vehicles that were stolen or damaged. In each instance,

Angela Jackson (“Angela”) was the claimant as the owner

of the vehicle and the insured. And in each instance,

Angela represented that she had purchased the vehicle

from Essie Jackson (“Essie”) and was still indebted to her

for the purchase. Angela married Joe Jackson (“Joe”),

Essie’s son, during the course of the conspiracy. Joe

participated in the scheme by acquiring each of the vehicles in Essie’s name; Essie then sold them to Angela. Joe

also supplied the receipts in support of a claim for

custom rims, tires, and electronic equipment reported

damaged or stolen from one of the vehicles.

The first of the three vehicles was a 1999 Ford Expedition

sport utility vehicle (“SUV”). Joe Jackson purchased that

vehicle on his mother’s behalf from Morgan’s Auto in

Paoli, Indiana. The vehicle had been involved in an accident and was a salvage vehicle. Generally speaking, a

salvage vehicle is one that previously has been damaged so

extensively that it has been declared a “total loss” for

insurance purposes, because the cost of repair is too

high in relation to the value of the vehicle—usually

around 75% or more of the vehicle’s worth—to justify

paying for the necessary repairs. Joe paid approximately

$6,800 for the Expedition.

Following the purchase, Jeff Lee restored the vehicle

with parts purchased by Joe. Lee testified that he was
Nos. 07-1449 & 07-1577 3

paid between $3,000 and $4,000 for his work, but that

if the repairs had been performed in a body shop, they

would have cost about $10,000. Joe testified that he put

a total of $13,000 to $14,000 into the restoration of the

SUV using money that his mother had given him—presumably, $10,000 for the necessary parts plus the $3,000 to

$4,000 that Lee said he was paid for his labor. However,

when Lee filled out the Affidavit of Restoration for a

Salvage Motor Vehicle that the Indiana Bureau of Motor

Vehicles (“BMV”) requires for issuance of a new title, he

reported using parts worth only about $1,100. Lee

testified that the rebuilt Expedition could have been

worth between $18,000 and $19,000.

Essie Jackson drove the restored Expedition for one

week, and then she agreed to sell the vehicle to her future

daughter-in-law, purportedly for the rather substantial

price of $33,000. Essie would later testify that this was a

non-negotiable, “take it or leave it” price (Tr. 567) that

Angela had accepted, making a down payment of $3,000

and agreeing to make monthly payments of $400 thereafter. The purchase price was close to what the Expedition

would have been worth as a new and undamaged vehicle.

“That was my price,” Essie testified. Tr. 588. But

Terry Morgan, the salvage dealer who sold the damaged

Expedition to Joe Jackson, testified that a restored salvage

vehicle is typically worth 35 percent less than a comparable vehicle that was never damaged. Essie and Angela did

not enter into a written purchase agreement, and Angela

made the monthly payments to Essie in cash. Notably, the

application for title that Angela submitted to the Indiana

BMV, rather than reflecting a purchase price of $33,000,
4 Nos. 07-1449 & 07-1577

indicated that Essie had gifted the car to Angela. Angela

insured the car through GoAmerica Auto Insurance

(“GoAmerica”).

On September 29, 2001, Angela Jackson reported to

GoAmerica that the Expedition had been stolen from a

Days Inn in Hazlewood, Missouri, near St. Louis. Angela

subsequently completed an affidavit of vehicle theft

indicating that she had purchased the vehicle from Essie

for $33,000, had made a down payment of $3,000, was

making monthly payments of $400, and that she still

owed Essie $28,000 for the vehicle. In the affidavit, Angela

also represented that certain electronic equipment, along

with custom rims and tires, had been installed on the

vehicle. She claimed a total loss in the amount of $32,750

for the stolen Expedition.

GoAmerica claims adjuster Marc Eichenauer handled

Angela’s claim for the 1999 Expedition. On investigating

the theft of the SUV, Eichenauer learned that it had

been a salvage vehicle. Eichenauer subsequently took a

recorded statement from Angela in which she disclaimed

any knowledge at the time she purchased the vehicle

from Essie that it previously had been involved in

an accident.

Eichenauer also spoke with Essie Jackson about the

Expedition on several occasions. Essie made slightly

different statements about the vehicle on each occasion.

Essie at first claimed that the Expedition had been purchased at auction for $10,500 and was in “great” condition.

Tr. 164. When Eichenauer asked her whether she had

bought the vehicle as a wreck, she said no, although she
Nos. 07-1449 & 07-1577 5

allowed that she had put a lot of money into the vehicle.

Eichenauer asked Essie to provide receipts for the work

she had done on the SUV along with documentation of

the title transfer. But Essie told him that she could give

him nothing because all of the paperwork had been

inside the Expedition when it was stolen. When Eichenauer

spoke with Essie a second time, she said that she had paid

between $15,000 and $16,000 for the SUV and had paid

additional sums to have it fixed but could not recall

how much.

At this point, Eichenauer, his suspicions aroused, turned

the claim over to GoAmerica’s fraud unit. An attorney

for GoAmerica took a sworn statement from Angela on

December 13, 2001. In her statement, Angela again represented that she had purchased the Expedition from Essie

for a total of $33,000. She again indicated that she had

made a down payment of $3,000 on the vehicle and had

been making monthly payments to Essie on the remainder.

She added that she had made both the down payment

and her monthly installment payments in cash, as she

did not have a checking account at that time. Angela

acknowledged that at the time she acquired the Expedition

from Essie, she learned that it previously had been damaged. She did not know what Essie had paid for the

vehicle. Angela reported that she worked for Liberty

Mutual Insurance as a customer service representative

and earned approximately $700 for each two-week pay

period.

The Expedition was never recovered, and GoAmerica

ultimately paid Angela $21,511.25 for the loss, which it
6 Nos. 07-1449 & 07-1577

deemed to represent the fair market value of the vehicle.

The company paid nothing for the electronic equipment

or the custom tires and rims, as Angela lacked the

requisite supplemental coverage for such items. Essie

Jackson released her lien on the Expedition, and

GoAmerica mailed the settlement check to Angela Jackson.

Joe Jackson used the proceeds of this check to purchase

a 1999 GMC Suburban on June 13, 2002 at the Greater

Kalamazoo (Michigan) Auto Auction. He paid $13,920

in cash for the vehicle, to Azteca Auto Sales. The sales

invoice identified Essie Jackson as the purchaser. But

Essie immediately re-sold the vehicle to Angela. This time,

the two women entered into a form contract memorializing Angela’s purchase of the vehicle. That agreement,

dated June 13, 2002, reflected that Angela agreed to pay

Essie $28,000 for the Suburban with no money down and

payments of $250 per month. Essie would later testify that

the purchase price was determined by Angela’s outstanding debt to her on the stolen Expedition. But the application for title that Angela filed with the Indiana BMV

reflected a sales price of only $1,000. Angela insured the

vehicle through AAA Insurance (“AAA”) on July 25, 2002,

and then, nearly nine months later, added specialized

coverage for both custom rims and tires as well as aftermarket electronic equipment.

On May 29, 2003, the Suburban was struck and damaged

by a vehicle owned by the City of South Bend, Indiana at

a location near Essie Jackson’s house. There is no contention that the accident was staged or that the reported

damage was misrepresented. The damage to the vehicle
Nos. 07-1449 & 07-1577 7

prevented it from being driven, so Joe had the vehicle

towed down the street and left in Essie Jackson’s yard. On

the following day, Joe telephoned the South Bend police

to report that electronic equipment had been stolen

from inside the vehicle. Angela later filed a claim with

AAA for the damage to the Suburban’s body, including

one set of the custom rims and tires, and for the

stolen electronic equipment.

The Suburban subsequently was taken to a Chevrolet

dealership in South Bend, Gates Chevy World (“Gates

Chevrolet”), which was an authorized repair company

for AAA, so that the costs of repair could be estimated.

Because one of the wheels on the vehicle had been damaged in the collision and required replacement and the

electronic equipment had been stolen, and because

Angela had purchased specialized coverage to cover those

items, AAA required documentation establishing their

cost. The manager of the Gates Chevrolet body shop,

Dennis J. R. Prenkert, who handled the estimates, advised

Joe Jackson to bring in receipts for those items. Joe provided Prenkert with a copy of an invoice from a Performance Plus Tire & Automotive Centers warehouse

(“Performance Plus”) for the custom rims and tires on

the Suburban. The invoice had been altered in the

copying process: the phone number of the purchaser

had been whited-out, and the (smaller) cash register

receipt for the items had been placed on top of the invoice

in such a way as to obscure the purchaser’s name and

contact information on the photocopy. It also turned out

that the purchase reflected on the invoice had been

made using a stolen Discover Card number. Records
8 Nos. 07-1449 & 07-1577

showed that the rims and tires purchased in this transaction had been shipped to Mishawaka, Indiana, a suburb of

South Bend. Joe provided two additional receipts from

Elmo’s Stereo Center for the electronic equipment. One

was a receipt that was dated May 15, 2003 (although it

appears the year was altered from 2002 to 2003), and was

made out to Joe Jackson and reflected a purchase of four

television screens for the amount of $4,004; the second

was a receipt for the purchase of a DVD player and other

equipment dated October 29, 2002, that was made out

to Angela Jackson in the amount of $3,280.

Ultimately AAA decided to declare the Suburban a total

loss rather than pay for its repair due to the costs associated with the damage to the vehicle and replacement of

the electronic equipment reported stolen from its interior.

In June 2003, AAA mailed two settlement checks to

Angela Jackson: one for the vehicle, including the

damaged tire and rim, in the amount of $21,533.49, made

out to both Angela and Essie Jackson, and a second check

in the amount of $3,500 payable to Angela Jackson only

for the electronic equipment. After Essie and Angela each

endorsed the first of these checks, and Angela endorsed

the second, the proceeds of the two checks were deposited

into the joint checking account of Angela and Joe.

Joe Jackson purchased the third vehicle, a 2001 Chevrolet

Suburban, on July 14, 2003, from Sunburst Car Company

in Arizona. Joe and Angela had found the vehicle on the

Internet and decided to buy it, notwithstanding the

distance involved, because it was in excellent condition

and the listed price was the lowest they had seen. Joe
Nos. 07-1449 & 07-1577 9

flew out to Arizona and paid for the vehicle with a cashier’s check in the amount of $16,625, using the proceeds of

the checks issued by AAA for the GMC Suburban. Once

again, Joe purchased the vehicle in Essie Jackson’s name.

On the same date, Essie sold the vehicle to Angela Jackson,

and the two of them entered into a written agreement

reflecting a purchase price of $28,000 with no money

down and monthly payments of $500. Four days later,

on July 18, Essie and Angela Jackson jointly applied for

title on the vehicle. Once again, the application for title

filed with the Indiana BMV reflected a different purchase

price—$16,500—than the one that Angela purportedly

had agreed to pay Essie for the vehicle. Angela insured

this vehicle with AAA as she had the former, and she

renewed her coverage for custom rims, tires, and electronic

equipment after spending additional sums to install

these items on the vehicle. She later increased the

coverage for electronic equipment to $4,500.

On July 4, 2004, Angela reported that the Suburban had

been stolen while she was in Chicago attending the fireworks show at the Taste of Chicago food festival. When

Angela submitted her proof of loss claim forms for the

theft, she included receipts for custom tires and rims

and electronic equipment totaling $6,006. She also

included a written sales agreement between herself and

Essie Jackson for the vehicle dated July 23, 2004—a date

nearly three weeks after the vehicle was stolen.

AAA turned the claim over to its fraud investigator,

who took a sworn statement from Angela Jackson. When

Angela appeared for the statement, she brought with
10 Nos. 07-1449 & 07-1577

her a different version of the sales agreement between

herself and Essie, this one dated July 14, 2003. Angela

explained that when she had entered into the agreement

with Essie, she had prepared two original copies of the

agreement, one for herself and one for Essie; one of

those copies bore the erroneous 2004 date and the other

bore the correct 2003 date. In the course of making her

statement, Angela stated that she was present to watch

the fireworks at the Taste of Chicago on July 4, 2004,

and that when she returned to the spot where she had

left her car, it was gone. (A U.S. postal inspector would

later testify that the Taste of Chicago fireworks show

always takes place on July 3 rather than July 4.) Angela

identified a receipt from Alltronics in the amount of

$6,006.34 as one that she had submitted in support of her

claim for the loss of electronic equipment in the vehicle.

She identified the signature on the receipt as her own

and confirmed that the items listed on the receipt had

been purchased on April 18, 2004, and installed on her

vehicle at Alltronics. However, subsequent investigation

by AAA’s fraud investigator and later by a U.S. Postal

Inspector would reveal that the Alltronics receipt was

counterfeit. The receipt reflected the purchase of

electronic equipment that Alltronics did not carry in its

store. Moreover, the owner of the store indicated that,

according to store records, the receipt number corresponded to a purchase in the amount of $66.78.

Smelling fraud in the air, AAA denied Angela’s claim

and referred the matter to the authorities. An investigation

by the U.S. Postal Inspection Service led the government

to conclude that the insurance claims submitted by
Nos. 07-1449 & 07-1577 11

Angela Jackson on all three of the vehicles were fraudulent. On March 6, 2006, a grand jury indicted Essie Jackson,

Angela Jackson, and Joe Jackson. Count One of the indictment charged the three defendants with conspiring to

commit mail fraud in violation of 18 U.S.C. § 371. Counts

Two through Six charged six acts of mail fraud in violation of 18 U.S.C. § 1341 corresponding to various mailings

that occurred in connection with the insurance claims.

A jury convicted all three defendants on all counts of the

indictment. Essie Jackson was ordered to serve a term of

fifteen months in prison. Angela Jackson received a

sentence of thirteen months. Joe Jackson was ordered to

serve the longest prison term of twenty-four months.

Essie and Joe Jackson appeal their convictions (no

objection is raised as to their sentences). Angela has

not pursued an appeal.

II.

Essie Jackson

A. Sufficiency of Evidence as to Essie Jackson on Count

One Conspiracy Charge

Essie Jackson challenges her conviction on the charge

that she engaged in a conspiracy with her son and

daughter-in-law to commit mail fraud. A conspiracy, of

course, is an agreement among two or more persons to

engage in a criminal act. E.g., United States v. Gilmer, 534

F.3d 696, 701 (7th Cir. 2008). Here, the criminal act was

mail fraud, defined as the use of the mails to carry out a
12 Nos. 07-1449 & 07-1577

“scheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses,

representations, or promises.” 18 U.S.C. § 1341. Establishing the offense of mail fraud entails proof that the defendant participated in a scheme to defraud involving

one or more material misrepresentations, that she acted

with the intent to defraud, and that the mails were used

in furtherance of the scheme. E.g., United States v. Sorich,

523 F.3d 702, 708 (7th Cir. 2008), petition for cert. filed (U.S.

Sept. 26, 2008) (No. 08-410); see also Neder v. United States,

527 U.S. 1, 25, 119 S. Ct. 1827, 1841 (1999). Proof that a

defendant conspired to commit mail fraud—an offense

distinct from mail fraud itself, see United States v. Lanas, 324

F.3d 894, 900 (7th Cir. 2003)—demands proof that there

was conspiratorial agreement to commit mail fraud, that

the defendant became a member of that conspiracy with

the intent to further its aim, and that at least one member

of the conspiracy committed an overt act in furtherance

of the conspiracy. E.g., United States v. Sims, 329 F.3d 937,

943 (7th Cir. 2003). Essie contends that there is inadequate

proof that she had any knowledge that a conspiracy to

defraud the insurance companies existed. In her view, the

jury’s verdict could only have been based on conjecture

and speculation. In assessing the sufficiency of the evidence, we are of course obliged to view the evidence in

the light most favorable to the government, and we will

sustain Essie’s challenge only if no jury reasonably could

have found beyond a reasonable doubt that she was a

knowing participant in the conspiracy. See, e.g., United

States v. Farris, 532 F.3d 615, 618 (7th Cir. 2008).

We begin by noting that the evidence was more than

sufficient to establish the existence of a conspiracy to
Nos. 07-1449 & 07-1577 13

defraud the insurers of the three vehicles. Each of the

defendants played a consistent role in the conspiracy: Joe

Jackson arranged the acquisition of each of the three

vehicles; Essie Jackson was the lienholder and seller (to

Angela) of all three vehicles; and Angela Jackson was in

each instance the purchaser (from Essie) of the vehicle as

well as the insured.

Although the three vehicles differed in their market

value, the figure of $28,000 recurred in each of the three

sales agreements between Essie and Angela: in the first

instance, $28,000 was the outstanding balance that Angela

purportedly owed on the 1999 Expedition, and in the

second and third instances, $28,000 was the price for

which Essie had agreed to sell the 1999 GMC Suburban

and 2001 Chevrolet Suburban to Angela.

Yet, the actual cost of the vehicle in all three instances,

including in particular the first, was significantly less

than $28,000. The Expedition was purchased as a salvage

vehicle for $6,800, and was repaired at a likely cost somewhere between the $1,100 worth of parts reported on the

BMV restoration form plus the $3,000 to $4,000 that Lee

was paid for his work and the $10,000 Lee said a body

shop would have charged. Even if the Jacksons had spent

$13,000 to $14,000 to restore the vehicle, as Joe Jackson

testified, as a salvage vehicle it would never have been

worth the $33,000 (close to its original market price as a

new vehicle, without the 35% reduction for restored

salvage vehicles) that Essie Jackson purportedly charged

Angela Jackson for the vehicle. The 1999 GMC Suburban

was purchased for $13,920, and yet Essie allegedly sold it
14 Nos. 07-1449 & 07-1577

to Angela Jackson for double that amount. The 2001 Chevy

Suburban was purchased for $16,600, but again Essie

agreed to sell it to Angela for much more than

that—$28,000. In short, Essie Jackson was purportedly

selling vehicles to Angela for far more than they were

actually worth. The notion that the sales price for the

second and third vehicles was tied to Angela’s indebtedness of $28,000 on the first vehicle is implausible, given

that the salvaged 1999 Expedition was never worth that

amount, let alone the $33,000 price Essie purportedly

charged Angela for the SUV.

Moreover, the Jacksons left a document trail revealing

that they reported wildly different values for the vehicles

depending on their immediate purpose. Angela Jackson’s

application for title on the 1999 Ford Expedition

reported that Essie Jackson was making a gift of the

Expedition to her, which is, to say the least, inconsistent

with the notion that Essie was charging her $33,000 for

the vehicle. Angela’s application for title on the 1999

GMC Suburban reported that Essie had sold that vehicle

to her for $1,000. And her application for title on the

2001 Chevrolet Suburban reported that Essie was selling

that vehicle to her for $16,500. All three values were

much lower than the price the defendants later claimed

Essie had sold the vehicles to Angela for: $33,000 for the

Ford Expedition, $28,000 for the GMC Suburban, and

$28,000 for the Chevrolet Suburban.

There were other signs of fraud as well. Following the

theft of the 1999 Expedition, Angela and Essie both made

statements evincing an intent to hide the fact that the
Nos. 07-1449 & 07-1577 15

Expedition had been a salvage vehicle. The original sales

agreement that Angela submitted to her insurer in

support of her third claim, for the 2001 Suburban, bore a

date that followed the theft of that vehicle by more than

two weeks. And, finally, the receipts that Joe and Angela

Jackson submitted to support their claim for damage to

or theft of the specialized rims, tires, and electronic equipment on the two Suburbans bore multiple and persuasive

indicia that they had been doctored to reflect purchases

that had not actually occurred.

The evidence was also more than sufficient to establish

Essie Jackson’s knowing participation in and intent to

further this conspiracy. As we have noted, Essie assumed

the role of the seller/lienholder of the three vehicles. She

was a key co-conspirator in that regard, as it was her

purported sales agreements with Angela that the conspirators relied upon to establish the value of the vehicles

for insurance purposes. As the seller of each car, Essie

signed the title applications and other paperwork attendant to her acquisition of the vehicles and sales to Angela.

Those documents, as we have noted, typically assigned a

much lower value to the cars (and in the case of the

Expedition, the parts used to restore the vehicle) than the

price for which she later sold the vehicles to Angela. Essie

was also the lienholder on each vehicle (and shared title

with Angela on the third). And last but not least, Essie

also endorsed the insurance checks that were issued to

her on the first two vehicles as the lienholder. The jury

could readily and reasonably infer from such evidence

that Essie was a knowing participant in the conspiracy.
16 Nos. 07-1449 & 07-1577

B. Due Process

Essie Jackson contends that she was deprived of due

process when the government purportedly suppressed

evidence relevant to the purchase of the first vehicle, the

1999 Ford Expedition, and otherwise misled the jury as to

what the facts revealed concerning her ability to pay for

the purchase and restoration of that vehicle. Cf. Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963)

(government violates due process when it suppresses

material evidence favorable to accused); Napue v. Illinois,

360 U.S. 264, 269, 79 S. Ct. 1173, 1177 (1959) (conviction

obtained through evidence known to be false violates due

process). Pursuant to Federal Rule of Criminal Procedure

33(b)(1), she requested a second trial on the basis of newly

discovered evidence that would have put her ability to

pay for the Expedition in a different light, but the

district court denied her motion. The decision whether to

grant the parties a new trial is one committed to the

district court’s discretion, United States v. Woolfolk, 197

F.3d 900, 904-05 (7th Cir. 1999), and our review of that

decision is deferential, id. at 904-05.

The parties agree that the Expedition was purchased

from Morgan’s Auto for a total of $6,800. A down payment

of $500 was made via a cashier’s check dated April 18,

2000; that check was made payable either to Morgan’s

Auto or to Joe Jackson. An additional payment in the

amount of $2,000 was made by means of a cashier’s check

dated May 2, 2000, and payable either to Morgan’s Auto

or to Essie Jackson. A final balance of over $4,000 was

paid in cash to Morgan’s Auto by Joe Jackson on May 16,
Nos. 07-1449 & 07-1577 17

2000. Both Joe and Essie Jackson testified that the money

for all three payments came from Essie.

Essie Jackson had bank accounts at both the Teachers

Credit Union (“TCU”) and the Notre Dame Federal Credit

Union (“NDFCU”). At trial, both in cross-examining Essie

and in reviewing her bank statements with representatives

of the two credit unions, the government sought to establish that she did not have the resources to pay for the

Expedition and/or did not pay for that vehicle. Proof

along those lines would have bolstered the government’s

view that Essie was never the true owner of the vehicle and

that her sale of the Expedition to Angela was a sham.

Essie’s NDFCU bank statement from May 2000 readily

supported the inference that she did make the second

payment of $2,000 for the Expedition on May 2. The

statement indicated that on that date, Essie had appeared

at the credit union with $2,365 in cash. $2,000 was used

to obtain a cashier’s check payable to Morgan’s Auto, and

the remaining $365 was deposited into her account. But

the May statements from neither the NDFCU nor the

TCU account bore any comparable evidence directly

supporting the notion that Essie was the source of the

subsequent cash payment of $4,000-plus on May 16. In

particular, neither statement reflected withdrawals of

$4,000 or more in the weeks preceding that payment. This

led to the following dialogue during the government’s

cross-examination of Essie at trial:

Q. Okay. Now, you also heard that they [Morgan’s

Auto] needed another $4,000 in cash right?

A. Yes.
18 Nos. 07-1449 & 07-1577

Q. That was your cash?

A. Yeah that was mine.

Q. That was your cash?

A. Yes.

Q. All right. Now we looked at your bank statement

remember, for May 2000. Do you remember looking at that?

* * *

A. Yes. Yes.

Q. Okay. And we didn’t see $4,000 in cash coming out

of your Notre Dame Credit Union account, did we?

A. No.

Q. And we didn’t see that money coming out of your

Teachers Credit Union account either?

A. No.

Q. So that cash you just left—you keep at home?

A. Yes, I do.

Tr. 564-65. Based on the lack of indicia in the May bank

statements that a $4,000-plus withdrawal had been made,

the government was clearly skeptical of the notion that

Essie Jackson could have been the source of the final

payment on the 1999 Expedition.

Mrs. Jackson contends that the government’s case on

this point was misleading by omission, because had her

April 2000 TCU statement been presented to the jury, it

would have been clear that withdrawals from her
Nos. 07-1449 & 07-1577 19

accounts in both April and May were sufficient to

enable her to make the final cash payment on the Expedition on May 16 as well as the $2,000 payment (via cashier’s

check) on May 2. She notes that her May statement

from TCU reflects total withdrawals of just under $5,700

that month, and her April TCU statement reflects two

withdrawals in mid-April totaling over $2,700. Added to

the $2,000 cashier’s check purchased from NDFCU on

May 2, these withdrawals demonstrate that Mrs. Jackson

had over $10,000 in proceeds available to her in the

weeks preceding the final payment for the Expedition

made on May 16. She chastises the government for “suppressing” the April statement and for focusing the jury’s

attention on her May statements alone.

The fact that the government did not present the April

statement to the jury cannot be characterized as the

suppression of evidence in violation of its duties under the

Due Process Clause. The April statement was one from

Essie Jackson’s own account, and as such it was as accessible to her as it was to the government. See United States

v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996) (“the government will not be found to have suppressed material

information if that information also was available to a

defendant through the exercise of reasonable diligence”)

(coll. cases). If she wanted to bring the April withdrawals

to the jury’s attention, she was free to do so. The government cannot be faulted for not doing so on its own.

In the same vein, the government did not hide exculpatory evidence from the jury when it neglected to have the

bank employee who testified concerning the May TCU

statement point out that there were withdrawals from
20 Nos. 07-1449 & 07-1577

that account in May that, collectively, exceeded $4,000.

Those withdrawals were, of course, reflected on the bank

statement, and Essie’s own counsel could have elicited

that information from the bank employee. Indeed, the

statement itself was admitted into evidence, and so the

jury itself would have seen those withdrawals. Nothing

was hidden from the jury. In any case, Essie seemed to

indicate in her testimony that the $4,000-plus for the final

payment came from cash she kept at home rather than her

credit union accounts. Tr. 565. So the notion that any of the

bank statements were critical evidence appears to be

inconsistent with Essie’s own testimony.

In any case, it is doubtful that any of this would have

made a difference. Two of the withdrawals that Essie

relies on from May took place after the May 16 payment.

Moreover, much of the money in these accounts was from

rental income on three different homes that Mrs. Jackson

owned in South Bend, and Mrs. Jackson used the rental

payments to cover the mortgages with little or nothing

left to spare. And beyond the rents from her properties,

Mrs. Jackson’s income was limited. She worked as a

housekeeper for Notre Dame University and earned just

under fourteen dollars per hour. So the notion that

the withdrawals in April and May were available to fund

the $4,000-plus cash payment to Morgan’s Auto on May 16

is dubious—or, to use the district court’s phrase, “extremely speculative.” R. 106 at 2. And finally, as we have

noted, Essie Jackson herself indicated that the final payment was made from cash she kept at home.

For all of these reasons, the district court did not abuse

its discretion in rejecting Essie Jackson’s contention that
Nos. 07-1449 & 07-1577 21

the government had violated her due process rights and

that she was entitled to a new trial.

C. Ineffective Assistance of Counsel

Essie Jackson contends that she was deprived of the

effective assistance of trial counsel, but we may make

short work of this argument. She contends that her

counsel should have cross-examined a number of the

government’s witnesses more thoroughly so as to elicit

information that would have supported her defense. As

to the funds in her bank accounts, for example, she argues

that her counsel should have elicited testimony from the

TCU representative acknowledging that there had been

withdrawals from her TCU account in May that might

have funded the May 16 payment on the Expedition. She

also suggests that counsel might have gotten GoAmerica’s

claims adjuster, Marc Eichenauer, who recounted the

conflicting statements that she had made concerning

what she had paid for the Expedition and the condition

it was in, to acknowledge that based on the documents

in the company’s possession, GoAmerica was well aware

that the Expedition had been a salvage vehicle and what

she had paid for it. But deciding what questions to ask a

prosecution witness on cross-examination is a matter of

strategy, see United States v. Hirschberg, 988 F.2d 1509, 1513

(7th Cir. 1993); see also United States v. Smith, 62 F.3d 1073,

1078 (8th Cir. 1995), and as this is a direct appeal, we

have no record as to what counsel’s thinking was in opting

not to cross-examine these witnesses in the way Mrs.

Jackson asserts that he should have. See Massaro v. United
22 Nos. 07-1449 & 07-1577

States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694 (2003) (noting

that raising a claim of ineffective assistance on collateral

review is preferable to direct appeal in most instances);

see also, e.g., United States v. Cruz-Velasco, 224 F.3d 654, 664

(7th Cir. 2000); United States v. Godwin, 202 F.3d 969, 973

(7th Cir. 2000). In any case, even if we were to leap past

this problem and assume that counsel’s cross-examination

was deficient, Essie has not established a reasonable

likelihood that additional cross-examination along the

lines she has suggested might have resulted in her acquittal. Id. at 973-74.

Joe Jackson

D. Sufficiency of the Evidence as to Mail Fraud Charges

Count Five

Count Five of the indictment was based on the mailing

of the $21,533.49 settlement check from AAA to Angela

and Essie Jackson for the damaged 1999 GMC Suburban,

which the insurance company had declared a total loss.

That settlement included the damage to one of the four

sets of specialty tires and rims resulting from the collision

with the city vehicle. The cost of the damaged rim and tire

was covered by supplemental coverage that Angela

Jackson had obtained on the vehicle. And it was Joe

Jackson who supplied the photocopied invoice from

Performance Plus that was used to establish the value of

the rim and tire. This was the only instance in which Joe

was directly responsible for a misrepresentation made

in support of an insurance claim. Recall that Joe was

asked to supply the receipt for the custom tires and rims to
Nos. 07-1449 & 07-1577 23

J. R. Prenkert, the manager of the Gates Chevrolet body

shop who prepared an estimate on the damage to the

vehicle as an agent of AAA. The invoice turned out to

have been altered, and the underlying purchase had been

made with a stolen credit card number. The invoice also

indicated that the rims and tires were purchased in

April 2002, although the Suburban was not purchased

until June 2002. Joe contends that any representation as

to this receipt was immaterial, because there was no

dispute that the custom rims and tires were in fact on the

Suburban and that one pair of the rims and tires was

actually damaged in the collision. Under the terms of

Angela Jackson’s custom equipment coverage on the car,

AAA was obliged to compensate her either for the cash

value of the damaged rim and tire or the cost of repair

or replacement, whichever was less. Consequently, he

reasons, the insurance company was obliged to reimburse

his wife for the cash value of the damaged items, regardless of the fraudulent nature of the receipt he presented

to Prenkert and any representation by him as to where

he purchased the rims and tires or what he paid for them.

But the jury reasonably could have found that the

receipt was material in the sense that it had a “natural

tendency to influence, or [was] capable of influencing”

AAA in its decision to reimburse Angela Jackson

pursuant to the insurance policy. Neder v. United States,

supra, 527 U.S. at 16, 119 S. Ct. at 1837 (internal quotation

marks and citations omitted); United States v. Henningsen,

387 F.3d 585, 589 (7th Cir. 2004) (“A false statement is

material [for purposes of a mail fraud charge] if it has ‘a

natural tendency to influence, or is capable of influencing,
24 Nos. 07-1449 & 07-1577

the decision of the decisionmaking body to which it is

addressed.’ ”) (quoting United States v. Fernandez, 282 F.3d

500, 508 (7th Cir. 2002)). The undisputed testimony at trial

was that AAA would reimburse the insured for items

covered under specialized coverage only upon verification of the cost of the lost or damaged items. Tr. 492. That

is why Prenkert demanded a receipt for the damaged

custom rim and tire from Joe Jackson. And Prenkert

testified that he relied on the receipt that Joe provided in

preparing the damage estimate for the vehicle. (He divided

the total reported cost of the rims and tires by four and

reported the resulting figure as the estimated value of the

damaged rim and tire.) Even if, as Joe suggests, the

Jacksons’ cost in acquiring the rims and tires was not

dispositive of the amount AAA was required to pay under

the specialized coverage, the receipt could still be viewed

as material. An insurer may reasonably insist on a receipt

and rely on that receipt for any of several reasons: as one

source, if not the exclusive source, of information as to the

value of the damaged or stolen item, to establish the

insured’s legitimate possession of the item (to confirm

that it was not stolen from someone else, for example—see

the cases cited infra at 31-32), and to document the nature

and authenticity of the item (all that glitters is not gold).

Cf. United States v. Chandler, 752 F.2d 1148, 1151 (6th Cir.

1985) (18 U.S.C. § 1001 false statement case) (altered

receipt was the type of false statement that could have a

tendency to affect tax determination, and thus was material, even if it did not actually affect IRS’s decision). This

is particularly true as to specialized coverage, which by

its nature is designed to insure items that are not de rigeur

on automobiles.
Nos. 07-1449 & 07-1577 25

Counts Two, Three, and Four

The mail fraud charges set forth in Counts Two, Three,

and Four all were based on mailings related to the insurance claim that Angela submitted to GoAmerica for the

stolen 1999 Ford Expedition. Joe Jackson did not

himself make any of the fraudulent misrepresentations

concerning that vehicle. Even so, co-schemers are jointly

responsible for one another’s acts in furtherance of the

scheme; so upon finding that Joe was a knowing participant in the scheme, the jury was free to hold him to

account for any fraudulent misrepresentations that were

made by Essie and/or Angela after he joined the scheme.

See United States v. Adeniji, 221 F.3d 1020, 1026 (7th Cir.

2000) (citing, among other authorities, United States v.

Wilson, 506 F.2d 1252, 1257 (7th Cir. 1974)); see also

Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S. Ct.

1180, 1183-84 (1946) (participant in conspiracy is liable

for foreseeable acts of his co-conspirators in furtherance

of conspiracy); United States v. Macey, 8 F.3d 462, 468 (7th

Cir. 1993) (“In a mail fraud case, a defendant is liable

for the acts of his co-conspirator even if the indictment

did not charge conspiracy.”). Jackson does not dispute

that point, but as with Count Five, he maintains that the

evidence was insufficient to establish that any of his codefendants’ misrepresentations were material.

The misrepresentations concerning the Expedition had

to do with the price that Essie Jackson paid for the Expedition and the condition that the vehicle was in when she

acquired it. Marc Eichenauer, GoAmerica’s representative,

testified that the condition of the vehicle factors into the
26 Nos. 07-1449 & 07-1577

claims adjustment process as a measure of what the

insurer owes the insured for the vehicle; and the purchase

price of the vehicle is in turn something that the insurer

takes into account as an indicator of what condition the

vehicle was in when acquired. But as Joe points out,

Eichenauer went on to note that GoAmerica also relies

on published information on the value of used cars to

assess the worth of a vehicle which previously had been

damaged and declared a loss, and that GoAmerica had

done precisely that with the Expedition:

I believe, in this particular case, we looked at used-car

guides to come up with a value and used the loan

value on this particular vehicle, and that’s a value

that we use in cases where the vehicle had been a

total loss before. So even though there were some

questions that we didn’t get answered on the claim, we

did know that the vehicle had, in fact, been in an

accident before, and, therefore, we didn’t rate it at

retail value.

Tr. 170. Based on this testimony, Joe argues that any

representations Essie or Angela Jackson made to

GoAmerica concerning the condition and price paid for the

Expedition could not have been material, because

GoAmerica was aware of the prior history of the vehicle

and ultimately relied on publicly available data about

the value of the vehicle rather than on anything the

Jacksons told the company about its worth.

But here again Joe exhibits an unduly narrow view of

materiality. That GoAmerica ultimately did not actually

rely on the defendants’ representations as to the value
Nos. 07-1449 & 07-1577 27

and condition of the vehicle does not render their statements immaterial. Neder, 527 U.S. at 24-25, 119 S. Ct. at

1841; see also United States v. Rosby, 454 F.3d 670, 674 (7th

Cir.) (“Reliance is not . . . an ordinary element of federal

criminal statutes dealing with fraud. Neder so holds for

§ 1341 in particular.”), cert. denied, 127 S. Ct. 607 (2006);

United States v. Reynolds, 189 F.3d 521, 525 (7th Cir. 1999)

(charge of bank fraud pursuant to 18 U.S.C. § 1344) (“A

statement is material if it would be capable of influencing

the decisionmaker’s decision; . . . there is no requirement

that the statement must in fact influence the decisionmaker (that would be reliance).”). Joe does not dispute

that the purchase price and condition of the insured

vehicle are highly material to the insurer. It is unsurprising

that insurers like GoAmerica routinely will look first to

the insured for information on such subjects: the insured

is in the best position to know what he paid for the

vehicle and what condition the vehicle was in when he

bought it. Nor is it surprising that when the insurer

receives conflicting or otherwise suspicious information,

as GoAmerica did from Angela and Essie Jackson, it will

look elsewhere for more reliable information about the

true value of the vehicle. The fact that GoAmerica ultimately relied on used-car guides to assess the value of the

Expedition does not detract from the materiality of the

fraudulent statements that Essie and Angela made about

the acquisition of the Expedition. Those were statements

that the Jacksons hoped would deceive GoAmerica into

paying nearly full retail price on a salvaged vehicle, they

were statements on material subjects that insurers routinely take into account in the claims process, and they
28 Nos. 07-1449 & 07-1577

were statements upon which the insurer might have

relied to its detriment had the Jacksons been more adept

at covering their tracks.

Count Seven

The mail fraud charge set forth in Count Seven was

founded on the vehicle theft claim form and supporting

document that Angela Jackson sent to AAA in connection

with the 2001 Chevrolet Suburban. Included among the

documentation was Angela Jackson’s proof of loss affidavit, which averred that she had purchased the Suburban

from Essie Jackson for $28,000, a purchase agreement

between Angela and Essie Jackson reflecting the same

purchase price, and a receipt from Alltronics for electronic

equipment that allegedly was in the Suburban at the

time of the theft. The $28,000 purchase price reported

on the affidavit and purchase agreement was inconsistent

with the $16,650 that Joe Jackson paid to the Arizona

car dealership for the Suburban and the $16,500 reported

to the Indiana BMV when Angela and Essie Jackson

jointly applied for a title to the Suburban; the date of the

purchase agreement between Angela and Essie Jackson

was July 23, 2004, several weeks after the Suburban was

reportedly stolen; and the Alltronics receipt was not

genuine in that it reflected the purchase of electronic

equipment that an Alltronics employee would testify

was not carried by Alltronics.

Although AAA was not deceived by these representations (they paid nothing on the claim for the 2001 Chevy

Suburban), they were material nonetheless. Again, an
Nos. 07-1449 & 07-1577 29

insurance company looks first to the insured for information about a stolen vehicle, and information that the

insured provides about the price she paid for the vehicle

helps the insurer gauge the condition and value of the

vehicle. Likewise, as we have discussed, it is routine for

insurance companies to insist on receipts for electronic

and other items insured through supplemental coverage;

insurers look to such receipts for confirmation that the

items were genuine and actually were in or on the

stolen vehicle. That an insurer may not ultimately rely (or

rely exclusively) on such information does not render

them immaterial.

E. Evidence concerning commission of credit card fraud

in the purchase of the custom tires and rims

As discussed, following the collision that damaged the

1999 GMC Suburban and one of the custom tires and rims

on the vehicle, Joe Jackson submitted a receipt reflecting

the purchase of a set of four custom rims and tires in

April 2002 from Performance Plus for just over $4,000. The

rims and tires had been purchased over the telephone

from a Performance Plus warehouse in Long Beach,

California using a Discover Card. And it turned out that

these items had been purchased using a stolen credit card

number. A field investigation manager for Discover

Financial Services, David Ostertag, testified that the

purchase had been made without the knowledge of the

credit card holder, who lived in Florida. When the card

holder reported the unauthorized charge, Discover had

looked into the matter and determined that someone had
30 Nos. 07-1449 & 07-1577

managed to have the address associated with the card

changed just before this purchase was made; the custom

rims and tires were then shipped to the new address,

which was located in Mishawaka, Indiana, a South Bend

suburb. Ostertag recounted all of this for the jury and

his written report, which reflected his determination that

the purchase of the tires and rims was fraudulent, was

admitted into evidence over Joe Jackson’s objection.

Joe, by the way, later testified that he did not purchase

the custom tires and rims directly from Performance Plus.

Instead, according to his account, he purchased them on

the street from a woman unknown to him who

happened to drive by his home while he was outside

washing the Suburban. She offered to sell him the tires

and rims, he agreed to pay her $4,000 in cash for the

items, and she provided him with a copy of the Performance Plus invoice and receipt, after deleting or

obscuring personal information on the invoice that she

did not want him to have.

Joe contends that the prejudicial impact of Ostertag’s

testimony and report outweighed its probative value and

that the district court should have sustained his objection

and excluded the report pursuant to Federal Rule of

Evidence 403. (In a footnote, he suggest that Ostertag’s

testimony “may have” violated Rules 404(b) and 702, and

that admission of Ostertag’s report may also have run afoul

of Rule 608(b). But he did not object on these grounds

below, and his mere mention of these rules is insufficient

to require our attention. E.g., United States v. Acosta, 534

F.3d 574, 590 (7th Cir. 2008).) Joe reasons that although
Nos. 07-1449 & 07-1577 31

he was not charged with defrauding the credit card

company, and the government conceded it had no proof

that he committed credit card fraud, Ostertag’s testimony

and report implicated him in the fraud against Discover

and likely tainted the jury’s assessment of his guilt on

Count Five, if not all of the charges. We review the district

court’s decision to admit this evidence for abuse of discretion. E.g., United States v. Samuels, 521 F.3d 804, 813

(7th Cir. 2008).

Like the district court, we agree that this evidence was

prejudicial to Joe, but we cannot say that it was so lacking

in probative worth as to render it inadmissible under Rule

403. Joe had presented the Performance Plus invoice as

proof of the identity and cost of the custom rims and tires

that he and his wife had acquired and installed on the

GMC Suburban. A jury could reasonably view the facts

underlying the purchase memorialized in that invoice as

relevant in assessing his intent to defraud the insurer. That

the tires and rims were obtained by fraud—whether or not

the fraud was committed by Joe himself—makes it more

likely that he and his co-defendants, in demanding compensation for the damaged rim and tire, were seeking

compensation for a loss that they had not actually incurred.

The jury was not required to believe Joe’s story that he

had innocently paid $4,000 in cash for the tires and rims

to a stranger who happened by his house and offered them

for sale; the jury reasonably could have inferred that he

was involved in their fraudulent purchase from Performance Plus. This was not collateral evidence, but evidence

that the Jacksons had not legitimately acquired the items

for which they were now seeking recompense. See Claflin v.
32 Nos. 07-1449 & 07-1577

After the court overruled Joe Jackson’s objection to this 1

evidence, his counsel elicited this information himself on

direct examination.

Commonwealth Ins. Co. of Boston, 110 U.S. 81, 94-97, 3 S. Ct.

507, 514-16 (1884) (false statements concerning purchase

of insured property were material to extent they related

to whether insured actually had insurable interest in

property); Wagnon v. State Farm Fire & Cas. Co., 146 F.3d

764, 769 (10th Cir. 1998) (same); cf. Level 3 Communications,

Inc. v. Fed. Ins. Co., 272 F.3d 908, 911 (7th Cir. 2001) (insured

incurs no loss for which it is entitled to compensation

when it is compelled to return property that was stolen).

F. Admission of Mr. Jackson’s prior conviction

Joe Jackson testified in his own defense. Pursuant to

Federal Rule of Evidence 609(a)(1), the district court

permitted the government to introduce evidence that in

1996 he had been convicted of receiving stolen property.

1

At the time of the trial, the conviction was just a few

weeks shy of being ten years old. Had the conviction

been more than ten years old, of course, it would have

been presumptively inadmissible under subsection (b) of

Rule 609 absent a finding by the district court that its

probative worth substantially outweighed its potential

for prejudice so as to warrant its admission in the interest

of justice. See, e.g., United States v. Rogers, — F.3d —,

2008 WL 4072542, at *3 (7th Cir. Sept. 4, 2008). But the

conviction was not yet ten years old, and so there was

no presumption against its admission. The district judge,
Nos. 07-1449 & 07-1577 33

weighing each of the pertinent factors identified by this

court in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.

1976) (citing Gordon v. United States, 383 F.2d 936, 940 (D.C.

Cir. 1967) (Burger, J.)), found that the probative worth of

the conviction vis-à-vis Mr. Jackson’s truthfulness exceeded its potential for prejudice. Tr. 597-99. Joe contends

that the court abused its discretion in permitting the

evidence over his objection, given the age of the conviction

and the likelihood that the jury may have surmised from

the conviction that he was the probable perpetrator of the

credit card fraud in the purchase of custom tires and rims

from Performance Plus. Once again, we review the

district court’s decision for abuse of discretion. United

States v. Hernandez, 106 F.3d 737, 740 (7th Cir. 1997).

The court did not abuse its discretion in allowing this

evidence. Although the conviction was close to ten years

old, it was not yet at that mark and consequently under

the terms of Rule 609 there was no presumption against

its admission. Any perception of arbitrariness in that

regard is the inevitable result of a rule that conditions the

admissibility of evidence on its age. As it was, the court

weighed the age of Joe’s conviction as a factor against

admission. Tr. 598. As for the probative value of the

conviction, the court reasonably concluded it reflected

conduct that did bear on Joe ‘s truthfulness, see Varhol v.

Nat’l R.R. Passenger Corp., 909 F.2d 1557, 1567 (7th Cir.

1990) (en banc) (receipt and use of stolen property sufficiently probative of witness’s credibility to permit crossexamination about such conduct pursuant to Rule 608(b)),

although the crime of receiving stolen property is not a

crime of dishonesty per se, see id. The court also noted that
34 Nos. 07-1449 & 07-1577

the nature of the charges rendered Joe‘s intent and state

of mind central issues in the case; and his credibility as a

witness would be a key factor in assessing his testimony as

to those issues. We have no reason to question that assessment, and although we agree with Joe that the evidence

held some potential to prejudice him, we cannot say that

the possibility was so strong as to compel the exclusion of

this evidence. In that regard, we note that the district court

gave the standard instruction admonishing jurors that

they were to consider the conviction solely in evaluating

Joe Jackson’s truthfulness as a witness and for no other

purpose. Tr. 699-700. That instruction, which we presume

that the jury followed, e.g., United States v. Jackson, 540

F.3d 578, 598 (7th Cir. 2008), mitigated the prejudicial

impact of the testimony concerning the conviction, United

States v. Montgomery, 390 F.3d 1013, 1016 (7th Cir. 2004)

(citing United States v. Nururdin, 8 F.3d 1187, 1192 (7th

Cir. 1993)).

G. Mr. Jackson’s Rule 33 Motion for New Trial

Pursuant to Federal Rule of Criminal Procedure 33(b)(1),

Joe asked the district court to grant him a new trial based

on newly discovered evidence. The evidence in question

related to Count Six of the indictment. That count, as we

have discussed, related to the claim that Angela Jackson

submitted for electronic equipment that had been stolen

from the 1999 GMC Suburban—namely, a video player

and multiple television display screens for the use

of passengers. In support of that claim, Joe had submitted two different receipts from Elmo’s Stereo Center in
Nos. 07-1449 & 07-1577 35

The comptroller referred to the vehicle as a Chevrolet 2

“[p]ickup” rather than a Blazer (R. 127, Murray Affidavit ¶ 4),

but there appears to be no dispute that he was referring to

a Blazer SUV.

South Bend: the first, which became Government Exhibit

14A, reflecting the purchase of four television screens on

May 15, 2003 for $4,004, and the second, which became

Government Exhibit 14B, reflecting the purchase of a DVD

player and related equipment on October 29, 2002,

for $3,280.

It was the testimony concerning Exhibit 14B on which

Joe would later focus his motion for a new trial. At trial,

Alan Vernasco, the owner of Elmo’s, testified that he

had not sold the DVD player and other equipment listed

on the receipt to Angela Jackson. Vernasco said that he

had searched his records and could find no evidence of

such a sale. He explained that the receipt the Jacksons had

tendered was just an estimate prepared after the theft on

the basis of the Jacksons’ representations to him about

what they had purportedly purchased. Following his

conviction, Joe contacted Gates Chevrolet to inquire

whether it had any record of a purchase from Elmo’s on

the Jacksons’ behalf. Gates’s comptroller would later

prepare a letter and declaration to the effect that

although Gates could not locate a copy of an invoice

from Elmo’s, it had discovered evidence confirming a

purchase by Gates in the amount of $3,280 from Elmo’s in

January 2003 on the Jacksons’ behalf for a 1995 Chevrolet

Blazer. (We shall have more to say about the Blazer in a 2
36 Nos. 07-1449 & 07-1577

moment.) During the trial, J. R. Prenkert, the Gates Chevrolet body shop manager, had conceded the possibility that

the replacement electronic equipment purchased for the

Blazer could have been installed on the 1999 GMC Suburban instead. Jackson contended that the belatedly-discovered proof of Gates’ $3,280 purchase from Elmo’s gave lie

to Vernasco’s insistence that no such purchase had been

made: either his records were incomplete, or he had only

searched for proof of a sale to Angela Jackson directly

rather than to (or through) Gates Chevrolet.

The district court agreed that this was newly discovered evidence, that Joe could not have discovered it

previously, and that it was material in the sense that the

jury could have concluded that the Elmo’s receipt or

estimate the Jacksons had submitted to AAA reflected

the actual purchase of the equipment listed. R. 146 at 12-13.

Still, the court was unconvinced that the evidence likely

would have made a difference to the outcome of the trial.

Id. at 13-14. The court reasoned that the evidence related

only to a discrete piece of the government’s case against

Joe and did nothing to undermine the abundant other

evidence of his guilt. Id.

We review the court’s ruling on the motion for abuse

of discretion, United States v. Gillaum, 372 F.3d 848, 857 (7th

Cir. 2004), and we have no reason to quarrel with the

court’s assessment that the new evidence would not have

made a difference to the outcome of the trial. The evidence

related to one count, and to only one of the two receipts

underlying the mail fraud charge in that count. Joe has

given us no reason to believe that even if the jury was
Nos. 07-1449 & 07-1577 37

persuaded that Exhibit 14B reflected an actual purchase,

contrary to Vernasco’s testimony, that it likely would

have acquitted him on Count Six, let alone any other

charge.

And the notion that the Gates evidence proved the

authenticity of Exhibit 14B as proof of what was stolen

from the 1999 GMC Suburban requires a series of leaps

that Joe has failed to address in his brief. As the Gates

comptroller’s letter and affidavit reveal, the $3,280 worth

of equipment that Gates obtained from Elmo’s was purchased not for the 1999 GMC Suburban, but the 1995

Chevrolet Blazer. It turns out that in October 2002, the

Jacksons had had the Blazer towed to Gates Chevrolet

in order to repair damage that occurred incurred in a hitand-run collision in front of their home. While the

pickup was stored in the Gates lot, it was broken into

and the electronic equipment inside (including a CD/DVD

player and television display screens) was stolen. That

theft led to the order of replacement equipment from

Elmo’s through Gates. Prenkert, as we have noted, conceded that this equipment could have been installed in

the Suburban instead of the Blazer, although he could not

recall whether this is what had occurred. So the evidence

requires the leap that specialty electronic equipment

ordered for the Chevrolet Blazer either was installed in

the Suburban instead or was later transferred from the

Blazer to the Suburban. More importantly, perhaps, it

would have required the jury to consider the evidence

concerning the Blazer solely for its exculpatory worth visà-vis Exhibit 14B and to ignore the inculpatory inferences

that could be drawn from the facts surrounding the

Blazer. This was the second incident in which someone
38 Nos. 07-1449 & 07-1577

had broken into one of the Jacksons’ automobiles

following an accident, and it was the fourth incident in

which the Jacksons were seeking reimbursement for

expensive electronic equipment that purportedly had been

stolen from or along with their vehicle. A jury possibly

could have thought that the Jacksons, having had four

vehicles stolen or broken into within a three-year period,

were among the most unlucky automobile owners in

South Bend; but the jury might also have concluded that

this fourth incident bore too many similarities to the

other three to be coincidental. Indeed, after the defense

had briefly raised the Blazer in cross-examining Prenkert

at trial, the government itself had sought leave to introduce evidence concerning the 1995 Blazer as further

proof of the fraudulent scheme, which the district court

had disallowed. The court might well have reconsidered

that ruling and allowed all of the details concerning the

collision and break-in into evidence if the defense had

more fully developed the theory that the electronic equipment stolen from the 1999 GMC Suburban originally had

been purchased by Gates for the 1995 Chevrolet Blazer. It

is far from clear that this would have been a net gain

for Joe Jackson’s defense.

III.

For the foregoing reasons, we find the evidence sufficient to support the convictions of Essie and Joe Jackson

and discern no error that required a new trial. We

therefore AFFIRM their convictions.

10-14-08