In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3014

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT L. WILSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 CR 638—James B. Moran, Judge.

____________

ARGUED JANUARY 14, 2002—DECIDED OCTOBER 3, 2002

____________

Before POSNER, RIPPLE, and DIANE P. WOOD, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. A jury found Robert

Wilson guilty of participation in a wire fraud scheme,

and he was sentenced to 23 months’ imprisonment. He

claimed at trial that he should have been allowed to

introduce some exculpatory evidence without opening

the door to the government’s use of evidence of his postarrest silence. He is now before this court on a direct

appeal of his conviction. Finding no error in the district

court’s rulings, we affirm.
2 No. 01-3014

I

Robert Wilson worked at the relevant time for Designer

Financial, a mortgage company. Between 1997 and 1999,

his annual income never exceeded $36,000, and he did not

report substantial real estate commissions on his tax

returns.

In August 2000, Wilson had a joint account and an

individual account at Bank One. As of August 1, 2000, the

joint account had a negative balance of $13,330, and the

individual account had a negative balance of $21. Two

days later, Homeside Lending (his mortgagee) began foreclosure proceedings on Wilson’s home, because Homeside

had not received any payments for about a year. Atlantic

National Trust was in worse shape; it held a second mortgage and had not been paid by Wilson since November

1998.

On August 4, 2000, a mysterious $180,000 was deposited

by wire transfer into Wilson’s personal account, originating from Citibank in New York. The transfer came from a

“Mr. Bean” account at Charles Schwab. The history of this

transfer is at the basis of the charges against Wilson.

On July 26, a Schwab employee received a call from a

man who identified himself as John Bean, who asked to

change his daytime phone number. The number was

changed to a cell phone. Records for that cell phone number show that a call was placed from the same telephone

to Designer Financial—where Wilson worked—on the

same day.

On August 3, Schwab received a wire transfer authorization form requesting a $180,000 transfer from the

account of John and Olga Bean to Wilson’s account. It

purported to be signed by the Beans, but they testified

at trial that they did not sign the form. It also contained

a Schwab authorization stamp, bearing the signature of

a Mr. Earl King. King, who at the time was a Vice Pres-
No. 01-3014 3

ident of Schwab, testified at trial that the authorizing

signature was not his.

After the money reached Wilson’s account, he transferred the $180,000 from the joint account into the individual account. He then transferred $35,000 back into

the joint account. The effect of these transfers was to

make the funds available immediately. On August 5,

Wilson made at least two withdrawals from the individual

account: a check for $16,000 to Homeside Lending and one

to R.J. and Tressy Stowers for $5,500. The Stowerses’

check was a repayment of earnest money on a house

purchase that was never completed. Bank One did not

honor this check, and when the Stowerses called Wilson

to complain, he said they should have cashed it at a currency exchange office.

On August 7, Wilson requested Bank One to transfer

$90,000 from his individual account into that of Head

Jerk House at TCF Bank. On the same day, Wilson obtained from his individual account three cashier’s checks

for a total of $23,542. One check was made payable to

Scott Gillespie, and the other two were for an apparently

fictitious William Emlund. A fingerprint on an Emlund

check matched that of Robert Mitchell, a convicted felon,

who testified that he received the check from Tim Mars,

a friend, who offered him $500 to cash the check and

provided him with a phony Emlund identification. When

Mitchell presented the Emlund check and the ID to a

teller, he was asked to put his fingerprint on the check.

While the teller checked it out, Mitchell became nervous

and left the bank, leaving behind both the check and the

fake ID. (The second of the Emlund checks was cashed at

a currency exchange office in September, endorsed in the

name of Robert Wilson.)

On the same day, an employee of Bank One received

a call from someone identifying himself as Robert Wilson,
4 No. 01-3014

who asked for the return of the Emlund check and the ID.

Telephone records showed a call placed to Bank One from

a telephone registered in Wilson’s wife’s name; other records showed that the same telephone later called a number registered to Tim Mars.

The next day, August 8, a man identifying himself as

Robert Wilson called Bank One, asking what the problem was with cashing the cashier’s check and why the bank

was holding up a $90,000 wire transfer. A bank representative asked Wilson to come to the bank the next day to

discuss the issue.

On August 9, FBI Agent Dale Shelton posed as a Bank

One employee and met with Wilson to discuss the activity on the account. During the meeting, Wilson stated

that the $180,000 wire transfer represented his and his

partner’s commission on a real estate development project in the Bahamas valued at $60 million, and stated that

it originated from the account of a certain Bean. (In December 1999, Wilson had sent a fax to Ace Capital Corporation (Ace), asking for a $2 million financial guarantee

bond for the development of property in the Bahamas. Ace

did not issue the guarantee.)

At the end of this meeting, Agent Shelton arrested Wilson and gave him his Miranda warnings. Wilson orally

waived his rights (though he refused to sign a written

waiver) and allowed Agent Shelton to interview him. In

the course of that interview, Wilson answered a number

of questions about the wire transfer. He stated that he

had been working with an associate on a real estate project related to the transfer, but when asked, expressly

refused to provide the name of that associate. He was

also questioned about the Emlund checks. He told Agent

Shelton that they were going to be used to purchase

vehicles from Mr. Emlund, whom he had met through a

friend. As to the Gillespie check, he stated that he owed a
No. 01-3014 5

friend a debt, and the friend had directed that the payment be made to a Scott Gillespie. He also stated that the

$180,000 had been wire-transferred by someone named

Bean, who was an investor with a project in the Bahamas.

Prior to Wilson’s trial, the defense made an oral motion

to preclude the government from introducing evidence

of Wilson’s post-arrest selective silence. The district court

granted the motion in part, ruling that the government

could not use this evidence in its case in chief. At trial,

Agent Shelton testified about Wilson’s statements regarding the Emlund and Gillespie checks. The prosecutor then

asked him: “And what if anything did [Wilson] say about

an associate of his?” Shelton began to reply as follows: “He

stated that an associate of his had—I am not clear on the

question actually,” after which the government withdrew the question.

Later in the trial, the defense proposed calling Agent

Shelton to the stand to introduce Wilson’s statement with

respect to the purported associate. The defense argued that

the earlier exchange with Agent Shelton had placed the

issue of the associate in front of the jury and completeness required that the defense fill in the story, but somehow without the government’s bringing in the selective

silence.

The trial court held that if Wilson brought up the matter of the associate, then the government would be allowed at that time to introduce evidence of his refusal to

name the associate during the interview with Agent

Shelton. Given this choice, the defense decided not to

bring in its story. This meant that the jury never heard

part of Wilson’s alibi, but it also never heard the government’s evidence of Wilson’s refusal to answer the more

specific questions.

The defense also sought to introduce the testimony of

an agent from the Securities and Exchange Commission

(SEC) and the introduction of a Consent Order and Com-
6 No. 01-3014

plaint relating to a Mr. Alan Gibbons. The idea behind

this was that Gibbons had entered into a Consent Order

with the SEC because he had defrauded investors for a

total of approximately $172,000; he had later submitted

a sworn statement that he had no funds; and on July 12,

2000, Gibbons had opened a Schwab account with a

$41,000 check drawn on a Bahamian corporation. On July

26, an account of Gibbons’s in the name of his corporation received a fraudulent wire transfer of $160,000 out

of the John Bean account. The SEC witness would have

testified that it would have the right under the terms of

the consent order to seize any funds owed by Gibbons up

to $172,000. This rather peripheral information, Wilson

believed, would have helped his case.

II

Wilson contends that his Fifth Amendment right to

remain silent was violated by the district court’s decision

conditionally to allow the government to introduce evidence of Wilson’s “selective silence,” if Wilson himself

decided to refer to the “associate” he had originally mentioned to Agent Shelton. He further argues that the trial

court violated his Sixth Amendment rights by refusing to

allow the SEC witness to testify and by refusing to permit the introduction of the Gibbons documents.

The propriety of a ruling allowing the introduction of

evidence is reviewed for abuse of discretion if the defendant objected at trial. United States v. Miller, 159 F.3d

1106, 1112 (7th Cir. 1998). Whether the court’s evidentiary

ruling (taking into account the permissible scope of the

court’s discretion) had the effect of infringing the defendant’s constitutional rights is a question of law we consider de novo. United States v. Hernandez, 84 F.3d 931,

933 (7th Cir. 1996).
No. 01-3014 7

A

The first question we must consider is whether we

should be looking at the proposed use of Wilson’s silence

at all. Wilson was given a choice by the district court.

This choice, he argues, put him on the horns of a dilemma:

he could either explore the issue of his alleged associate,

at the price of having the jury hear about his invocation

of his right to silence, or he could say nothing about

the associate and keep out the testimony about the selective silence. At the trial, Wilson resolved the problem

by declining to introduce the part of his post-arrest statement that related to an associate; thus, the government

never introduced the other part of the statement in

which Wilson declined to name the associate. The government now argues that having elected not to risk the

admission, Wilson waived the right to challenge the ruling on the issue. It relies on Wilson v. Williams, 182 F.3d

562 (7th Cir. 1999) (en banc) for this proposition. It contends that a “good example of a conditional ruling is a

judge’s statement that, if a litigant testifies, then the

adverse party will be entitled to cross-examine in such-andsuch a way. Until the condition has been satisfied by

the testimony, the ruling has no effect.” Id. at 565.

In Luce v. United States, 469 U.S. 38, 41 (1984), the

Supreme Court recognized the difficulty a trial court

faces when it is asked to make a ruling in the abstract

about the consequences of a defendant’s testimony. Luce,

on trial in federal court on drug charges, moved to preclude the government from introducing evidence of his

prior conviction to impeach him if he testified. Like Wilson, he did not commit to testifying if the motion was

granted, and no adequate proffer was made as to what the

testimony would be if it indeed took place. Id. at 39. Luce

ended up not testifying and was convicted. The trial

court had made a conditional ruling that the evidence

would have been admissible. The Supreme Court agreed
8 No. 01-3014

that the ruling could not be reviewed, because it was

speculative whether the government’s impeaching evidence would even have been introduced, and it could not

assume that the conditional ruling was the reason for the

defendant’s decision not to testify. Id. at 41-42. As the

government’s evidence never came in, it was impossible

to determine whether it had negatively and impermissibly affected the jury. In order to preserve the right to

challenge the evidentiary ruling, Luce would have had to

introduce his evidence, object to the government’s evidence (if indeed it was brought in), and then appeal if he

was convicted.

Other circuits have extended the Luce principle beyond

its original context of FEDERAL RULE OF EVIDENCE 609. See

United States v. DiMatteo, 759 F.2d 831, 832 (11th Cir.

1985) (applying Luce where the defendant’s witness would

be impeached with evidence offered under Rule 608). See

also United States v. Goldman, 41 F.3d 785, 788 (1st Cir.

1994) (“Although Luce involved impeachment by conviction under Rule 609, the reasons given by the Supreme

Court for requiring the defendant to testify apply with full

force to the kind of Rule 403 and 404 objections that are

advanced by Goldman in this case.”); Palmieri v. DeFaria,

88 F.3d 136, 140-41 (2d Cir. 1996) (where the plaintiff

decided to take an adverse judgment rather than challenge an advance ruling by putting on evidence at trial,

the in limine ruling would not be reviewed on appeal);

United States v. Ortiz, 857 F.2d 900, 905 (2d Cir. 1988)

(where uncharged misconduct is ruled admissible if the

defendant pursues a certain defense, the defendant must

actually pursue that defense at trial in order to preserve

a claim of error on appeal); United States v. Bond, 87 F.3d

695, 701 (5th Cir. 1996) (where the trial court rules in

limine that the defendant would waive his fifth amendment

privilege were he to testify, the defendant must take the

stand and testify in order to challenge that ruling on

appeal).
No. 01-3014 9

Following this line of cases, we agree that it is inappropriate for us to review Wilson’s claim on the merits here.

He exercised his constitutional right to refrain from introducing certain evidence at the trial and cannot now

attack a potential introduction of evidence by the government in response to his potential testimony. We therefore

do not address his arguments with respect to the alleged

violation of his Fifth Amendment rights.

B

Wilson also appeals the trial court’s decision to exclude

the testimony of an SEC agent regarding the consent

and stipulation of Alan Gibbons. Defense counsel’s offer of

proof indicates that the agent would have testified that

Gibbons risked having funds up to $172,000 seized if

the money had been found in one of his accounts. Wilson

then would have had to tell the jury that Gibbons had a

reason not to transfer the $180,000 in his own account

for fear of seizure. Accordingly, he had a reason to transfer

the amount into a third party’s account (that is, Wilson’s).

Under what has come to be known as “reverse 404(b)

evidence,” a defendant can introduce evidence of someone

else’s conduct if it tends to negate the defendant’s guilt.

The trial court is entitled to exclude this kind of evidence

if, upon a balancing of the evidence’s probative value

against considerations such as prejudice, undue waste of

time, and confusion of the issues under Rules 401 and 403

of the Federal Rules of Evidence, it concludes that the

evidence would not be beneficial. United States v. Reed,

259 F.3d 631, 634 (7th Cir. 2001). Such reverse 404(b)

rulings, like other evidentiary rulings, are reviewed with

deference. United States v. Walton, 217 F.3d 443, 450 (7th

Cir. 2000). Because the evidence that Wilson wished to

offer would not have played a major role in disproving

his guilt, there is no basis for disturbing the trial court’s
10 No. 01-3014

ruling on this matter. Its exclusion did not violate Wilson’s Sixth Amendment right to present a defense.

IV

For these reasons, we AFFIRM Wilson’s conviction.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-00-R-006—10-3-02