In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3044

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LOUIS L. JAVELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CR 233—John W. Darrah, Judge.

ARGUED MARCH 26, 2012—DECIDED AUGUST 30, 2012

Before EASTERBROOK, Chief Judge, and BAUER and

WOOD, Circuit Judges.

BAUER, Circuit Judge. On March 12, 2009, a federal

Grand Jury indicted Louis L. Javell and his co-defendant,

Aysha Arroyo, on two counts of mortgage-based wire

fraud in violation of Title 18 U.S.C. § 1343. Both defendants pleaded not guilty and proceeded to trial and

on February 22, 2011, a jury returned guilty verdicts

against both defendants. Javell filed a motion for a new
2 No. 11-3044

trial; it was denied, and he was sentenced to a term of

12 months and one day in prison on each count, ordered

to run concurrently. This appeal followed. We affirm.

I. BACKGROUND

In December 2005, the FBI began an undercover investigation into mortgage fraud, specifically targeting

real estate professionals who were willing to prepare

false mortgage loan applications or secure the required

documentation to be included with loan applications

that they knew to be fraudulent.

In 2007, a cooperating individual (“CI”) working with

the FBI got in touch with a man named Abraham Skaff,

an accountant and tax preparer in the Chicago area. The

CI informed Skaff that he had control over a specific

parcel of real estate known as the Everett Property.

Though he did not own it, the CI told Skaff that he had

control over its owner via a power of attorney. The CI

explained that he had recruited a straw buyer named

Hussein who would purchase the Everett Property

using a fake identity known as Emad Adham. Unknown

to Skaff, Hussein was actually an undercover agent

(“UC”) for the FBI. The CI enlisted Skaff to help him

find a mortgage company that would assemble and

submit a fraudulent loan application to a lender for the

purchase of the Everett Property. The CI explained that

he planned to sell the property for as much as possible,

then let it fall into foreclosure. With this knowledge,

Skaff referred the CI to Louis Javell, the owner of a mortgage brokerage company called Bell Capital.
No. 11-3044 3

Toward the end of June 2007, a loan processor and

employee of Javell’s named Aysha Arroyo began

assisting the CI in assembling a loan application in

Adham’s name. A few weeks later on July 25, the CI, the

UC, Javell, Arroyo, and Skaff met at the Bell Capital

offices, which were under surveillance by the FBI, to

discuss a problem with Adham’s loan application. At the

meeting, Javell and Arroyo explained that Adham’s

bank account had not been opened for the requisite

number of days, and that this would be grounds for

the lender’s rejection of the application. As a solution,

Arroyo suggested Adham find someone with a seasoned

bank account who would be willing to temporarily add

Adham’s name to it. Alternatively, Arroyo offered to

contact someone she knew at a local bank who, for a

fee, would be willing to back-date an account with

Adham’s name on it. The CI and the UC opted for the

latter option, but when Arroyo’s contact did not pan

out, the FBI added Adham’s name to the seasoned

bank account of another fictitious identity created by

the FBI. Soon after, the completed application was submitted by Bell Capital.

On August 1, the loan having been approved for

$150,000, the CI and the UC closed on the Everett

Property and Javell was issued a check for $5,234 which

was deposited into Bell Capital’s business account.

In March 2009, Javell and Arroyo were indicted. After

Arroyo’s arrest, she waived her Miranda rights and was

interviewed by the FBI. During the interview, Arroyo

admitted she had worked with Skaff on prior occasions,
4 No. 11-3044

that she knew that some of the tax returns and subsequent documents provided by Skaff were fraudulent,

and that she submitted them to lenders anyway. The

agents played for Arroyo portions of surveillance recordings from inside the Bell Capital offices; Arroyo

identified herself on one of the recordings. When the

agents asked what she was discussing in the recording,

Arroyo admitted to speaking with a new customer

and explaining to him, as she did for the CI and the UC,

that she had a contact at a bank who would open a

new bank account for him, back-date it, and issue him

a fraudulent Verification of Deposit.

Both Javell and Arroyo pleaded not guilty and a jury

trial was scheduled. Prior to trial, the government informed both defendants that it intended to introduce

Arroyo’s post-arrest statements through the testimony

of Agent Secor, the FBI agent who had interviewed

Arroyo and composed a post-interview report. Javell

argued that the admission of Arroyo’s post-arrest statements via Agent Secor violated the Confrontation Clause

of the Sixth Amendment. On Javell’s motion, the district

court granted a Bruton hearing and ordered the government to submit a Bruton statement detailing exactly

what they intended to introduce at trial. See Bruton v.

United States, 391 U.S. 123 (1968). The government complied. The statement specified the exact information

from the post-arrest report Agent Secor would testify to,

with any facially incriminating references to Javell or

Bell Capital redacted. The district court reviewed the

government’s Bruton statement and made further

redactions in an effort to remove any indirect references

to Javell or Bell Capital.
No. 11-3044 5

At trial, the government’s Bruton statement was

never published to the jury, but the government did

elicit testimony from Agent Secor which comported

with the Bruton statement approved by the district

court; neither the government nor Agent Secor made

any references to the redacted portions at trial. Ultimately, the jury found Javell and Arroyo guilty.

II. ANALYSIS

Javell claims the district court violated Bruton, its progeny, and Javell’s Sixth Amendment rights by admitting

the post-arrest statements made by Arroyo and by

failing to properly instruct the jury about the rules of nonimputation. According to Javell, Arroyo’s post-arrest

statements directly implicated Javell and had the jury

not heard those statements, Javell would not have

been convicted. We disagree.

A. Javell’s Bruton Claim

Although this Court typically reviews a district court’s

evidentiary rulings for an abuse of discretion, a district

court’s application of the principles promulgated in

Bruton and its progeny is reviewed de novo. United States

v. Green, 648 F.3d 569, 574 (7th Cir. 2011); United States v.

McGowan, 590 F.3d 446, 453 (7th Cir. 2009).

The Sixth Amendment to the United States Constitution

declares, “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted by witnesses against

him . . . .” U.S. CONST. amend. VI.
6 No. 11-3044

To review: in Bruton v. United States, Bruton and his

accomplice had been charged with armed postal robbery,

and at joint-trial, a postal inspector testified that the

accomplice had orally confessed to having committed the

crime with Bruton, but the accomplice himself never

took the stand. Bruton, 391 U.S. at 124. Both Bruton and

the accomplice were convicted. Id. On appeal to the

Eighth Circuit, the accomplice’s conviction was set

aside because the court ruled the confession had been

obtained in violation of his Miranda rights. Id. “However,

[the Eighth Circuit] . . . affirmed Bruton’s conviction

because the trial judge instructed the jury that although

[the accomplice]’s confession was competent evidence

against [the accomplice,] it was inadmissible hearsay

against [Bruton] and therefore had to be disregarded

in determining [Bruton]’s guilt or innocence.” Bruton,

391 U.S. at 124-25. See also, Delli Paoli v. United States,

352 U.S. 232 (1957) (holding that inadmissible hearsay

against a defendant could still be entered into evidence

as long as the declarant was the co-defendant and the

jury was given proper limiting instructions not to

consider the statements against the defendant). On retrial,

the accomplice was acquitted. Id. at 125-26. On certiorari,

the Supreme Court held that “because of the substantial

risk that the jury, despite instructions to the contrary,

looked to the incriminating extrajudicial statements in

determining [Bruton]’s guilt, admission of [the accomplice]’s confession in this joint trial violated petitioner’s

right of cross-examination secured by the Confrontation

Clause of the Sixth Amendment.” Id. at 126.

Twenty-one years later, Richardson v. Marsh refined

Bruton. In that case, a defendant and his co-defendant
No. 11-3044 7

were charged with murder and assault. Richardson v.

Marsh, 481 U.S. 200, 202 (1987). At trial, the co-defendant

did not testify but his confession was admitted into

evidence. Richardson, 481 U.S. at 203-04. All references to

the defendant and his participation in the crime were

redacted from the confession and the jury was instructed not to consider the co-defendant’s confession

with regard to the defendant. Id. However, the defendant’s subsequent testimony linked him to the codefendant’s confession and the defendant was convicted. Id. at 205. The defendant’s appeal was denied by

the Michigan Court of Appeals, and his writ of habeas

corpus was denied by the district court. Id. However,

the Sixth Circuit reversed, relying on Bruton, and ruled

that an omission or redaction of a reference to the defendant was effectively diminished if forthcoming

evidence would ultimately connect the defendant to the

non-testifying co-defendant’s “powerfully incriminating”

confession. Id. at 205-06 (quoting Marsh v. Richardson,

781 F.2d 1201, 1213 (6th Cir. 1986)).

On certiorari, the Supreme Court upheld the admissibility of the co-defendant’s confession and stated, “[t]he

Confrontation Clause is not violated by the admission of

a non-testifying co-defendant’s confession with a

proper limiting instruction when, . . . the confession is

redacted to eliminate not only the [defendant]’s name,

but any reference to his or her existence.” Richardson,

481 U.S. at 211.

In Gray v. Maryland, Gray and Bell were indicted for

beating a man to death. Gray v. Maryland, 523 U.S. 185, 188
8 No. 11-3044

(1998). At trial, the prosecution sought to enter Bell’s

confession which implicated Gray. Gray, 523 U.S. at 188.

The court ordered the confession be redacted and it

was subsequently read into evidence during trial and

published in written form to the jury. Id. However, the

confession’s redactions only went as far as inserting a

blank space or the word “deleted” or “deletion” where

Gray’s name otherwise would have been. Id. The confession was accompanied by an instruction to the jury

that the confession be considered only with respect to

Bell, and that it was not to be considered with respect

to Gray. Id. at 189. Both Bell and Gray were convicted

and Gray appealed. Id. The Maryland Court of Special

Appeals set aside Gray’s conviction, ruling that admitting the confession violated Bruton. Id. However, Maryland’s supreme court reinstated the conviction. Id. On

certiorari, the U.S. Supreme Court found that Bell’s confession contained inferences and implications which

were distinguishable from Bruton and Richardson

because they directly incriminated Gray, as opposed to

incriminating him “only when linked with evidence

introduced later at trial.” Id. at 196 (citing Richardson,

481 U.S. at 208 (quotations omitted)). “Moreover,” the

Court continued, “the redacted confession with the

blank prominent on its face . . . facially incriminates

[Gray] . . . and the accusation that the redacted confession makes is more vivid than inferential incrimination,

and hence more difficult to thrust out of mind.” Gray,

523 U.S. at 196 (citing Richardson, 481 U.S. at 208-09 (internal quotations omitted)). In other words, so long as it

was accompanied by a proper limiting instruction to
No. 11-3044 9

the jury and it did not facially incriminate the defendant, the co-defendant’s redacted confession was

admissible at trial.

Similarly in the recent mortgage-fraud case United

States v. Green, the government introduced the confession of a co-defendant with the defendant’s name

redacted and replaced with “straw buyer.” United States

v. Green, 648 F.3d 569, 573 (7th Cir. 2011). Later, evidence

was introduced making it clear to the jury that “straw

buyer” was a substitute for the defendant’s name.

Green, 648 F.3d at 573. The defendant moved for a

mistrial but the district court denied the motion. Id. at

574. On appeal, this Court affirmed the district court’s

ruling that the use of “straw buyer” in the redacted

confession “was not so obvious a reference to the defendant as to violate Bruton,” and that “[t]aken alone,

nothing in the [co-defendant]’s statement . . . suggest[ed]

that the [defendant] was the straw buyer.” Id. at 575-76.

Despite Javell’s repeated arguments to the contrary,

not one of the cases above support his position that

the government’s Bruton statement violated his Sixth

Amendment rights. Each of the aforementioned cases

dealt with redacted confessions which facially incriminated or indirectly implicated the defendant. The fact

remains that in Javell’s case, nothing in the government’s Bruton statement was facially incriminating, nor

did any part of the statement even reference Javell indirectly, as for instance in Greene, by redacting and replacing

his name with a more innocuous phrase. Instead, any

reference to Javell or Bell Capital that was not already
10 No. 11-3044

redacted by the government, was redacted by the

district court at the Bruton hearing.

For example, the government’s original Bruton statement included a sentence which read, “[a]s a Loan Processor, it is Arroyo’s responsibility to take loan applications and other mortgage-related paperwork from the

Loan Officers at [redacted] and ensure the paper is in

order prior to submitting the paperwork for loan approval.” (Emphasis added.) The district court ordered

the word “at” to be redacted because the court thought

it ran “the risk of facially calling attention to Bell [Capital],” and the district court knew that such a redaction

would prevent a Gray scenario from occurring. The

district court made four more similar redactions to

the government’s Bruton statement which resulted in a

statement that if presented in isolation from other evidence, would prevent a jury from knowing anyone

other than Arroyo was involved; after the final redactions were made, there was no indication that Javell or

Bell Capital even existed.

This poses the question: What if the government had

never introduced their Bruton statement or any other

evidence of Arroyo’s confession? Could a reasonable

juror still have concluded that Javell was guilty of

mortgage-based wire fraud? Yes. The government

properly introduced a plethora of other evidence

against Javell, including recordings of Javell discussing

the fraudulent mortgage application and the need

for Adham to secure a seasoned bank account. Additionally, the government also presented evidence to
No. 11-3044 11

show that after closing on the Everett property, Javell

advised the CI and the UC on how best to let the

property fall into foreclosure; that failing to make the

first few mortgage payments could raise red flags with

the FBI, who Javell had heard was investigating such

things.

The government’s Bruton statement did not violate

Bruton or its progeny and the district court was correct

to admit it. Javell’s Sixth Amendment rights were not

affected. We find no error.

B. Javell’s Jury Instruction Claim

Next, Javell argues that the district court erred by

failing to instruct the jury to only consider Arroyo’s postarrest statements with respect to Arroyo; that they

should not be imputed to Javell.

At trial, Javell never objected to the district court’s jury

instructions, nor did he request that the judge give a

specific, clarifying instruction. As such, we review for

plain error. See United States v. Courtright, 632 F.3d 363,

371 (7th Cir. 2011). “To establish plain error, [Javell]

must show that there was an actual error, that the

error was plain, that the error affected [his] substantial

rights, and that the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings.”

Courtright, 632 F.3d at 371 (citing United States v. Canady,

578 F.3d 665, 670 (7th Cir. 2009) (internal quotations

omitted)). To be considered plain, an error must be “so

obvious, crucial, and egregious, that we may and
12 No. 11-3044

should correct it even if no objection was made below.”

Courtright, 632 F.3d at 371 (quoting Backwater, Inc. v. PennAmerican Ins. Co., 448 F.3d 962, 965 (7th Cir. 2006)). Furthermore, “[p]lain error review of jury instructions is

particularly light handed, and we will reverse only if

the error was of such a great magnitude that it probably changed the outcome of the trial.” Courtright, 632

F.3d at 371 (citing United States v. Moore, 115 F.3d 1348,

1362 (7th Cir. 1997) (internal quotations omitted)).

At the Bruton hearing prior to trial, the district court

summarized Bruton and its progeny and noted the need

for proper limiting instructions. At trial, when Agent

Secor testified as to Arroyo’s post-arrest statements, the

district court instructed the jury “to accept the last

answer made by Agent Secor regarding the seasoned

bank account only insofar as it bears on the issues in

this case regarding Ms. Arroyo.” Later, prior to jury

deliberations, the district court instructed the jury as

to Seventh Circuit Pattern Jury Instruction 3.02:

You have received evidence of a statement said

to be made by Defendant Aysha Arroyo to law enforcement officers. You must decide whether the

defendant did in fact make the statement. 

Notably, and as Javell ardently calls to our attention,

the district court omitted the last line of the instruction,

which reads, “[y]ou may not consider this statement

as evidence against any defendant other than the one

who made it.”

It is possible that by singling out only one of the statements made by Agent Secor the district court inad-
No. 11-3044 13

vertently communicated to the jury that the remainder

of Agent Secor’s testimony could be properly imputed

to Javell and it is unclear why the district court chose

to omit the last sentence of 3.02. Nevertheless, both

the instruction regarding Agent Secor’s testimony and

the omission of 3.02’s last sentence are of little consequence. “In reviewing the sufficiency of jury instructions, we look to the instructions as a whole to determine whether the jury was misled in any way and

whether it had understanding of the issues and its duty

to determine those issues.” United States v. Johnson, 584

F.3d 731, 739 (7th Cir. 2009) (citing United States v.

Berndt, 530 F.3d 553, 555 (7th Cir. 2008) (internal quotations omitted)). “We would only reverse if the instructions viewed in their entirety, mislead the jurors to

[Javell]’s prejudice.” Johnson, 584 F.3d at 739 (citing United

States v. Smith, 223 F.3d 554, 556 (7th Cir. 2000) (internal

quotations omitted)). Though juries often benefit from

hearing concrete instructions that specify exactly which

evidence and testimony should be considered with

respect to each co-defendant, neither party found it

necessary to request such definition at trial, and nor did

we, upon review of the instructions and record as a

whole, find that the jury was misled or misinformed

as to their responsibilities.

Furthermore, the omission did not result in such prejudice to Javell that would require us to reverse for a

finding of injustice. As we previously mentioned, plenty

of evidence was properly introduced at trial, independent of Arroyo’s post-arrest statements, which

implicated Javell.
14 No. 11-3044

Javell has not met his burden. Finding no plain error

by the district court, we conclude that not only were

Javell’s substantial rights unharmed, but that the fairness, integrity, and public reputation of these judicial

proceedings are intact.

III. CONCLUSION

For the reasons stated herein, we AFFIRM the judgment

of the district court.

8-30-12