In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2192

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VERNON BONNER,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division.

No. 00 CR 55—Rudy Lozano, Judge.

____________

ARGUED JANUARY 11, 2002—DECIDED SEPTEMBER 13, 2002

____________

Before EASTERBROOK,KANNE, and DIANE P.WOOD, Circuit

Judges.

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

Bonner guilty of four counts of mail fraud and one count

of theft of government funds, after he swindled a widow

out of her spousal and dependent Veterans Administration (VA) benefit payments. The court denied his motion

for a new trial. On this direct appeal, Bonner contends

that the district court committed several errors in the

handling of testimony at trial. Finding no error, we affirm

his conviction.
2 No. 01-2192

I

While living in Brazil, James Kettles, an expatriate

American armed forces veteran, met a Brazilian national,

Angelita. The two were eventually married and lived

mainly on James’s VA benefit payments. After James’s

death in 1992, Angelita was entitled to receive survivor

and dependent benefits from the VA as the widow of a

war veteran with dependent children. For some reason,

however, after it learned of James’s death, the VA failed

to begin making the proper survivor/dependent payments (although it did terminate his direct benefits).

Concerned, Angelita traveled to the United States to

find out what was wrong and to secure the benefits she

was due. In part because of her limited command of English, she was helped in this process by Dean Blake, a

family friend. The trip proved fruitless, and Angelita returned to Brazil and went on with her life, relying

chiefly on savings that her husband had left in a New

York bank account.

Enter Vernon Bonner. Before James and Angelita were

married, they met Bonner, who was visiting Brazil. In

1993, Bonner was again vacationing in Brazil, and he

paid a visit to Angelita. At that time, he learned of James’s

death and of Angelita’s problems with the VA benefits.

Bonner offered to help her get the benefits reinstated.

During another trip to Brazil in 1994, Bonner asked

Angelita to provide him with copies of her marriage certificate and license, James’s burial documents, and the

children’s birth certificates. To further her cause with the

VA, Bonner also asked Angelita to sign several papers,

including a power of attorney, that were written in English.

In 1994, Angelita started receiving checks from the VA

once again. She received an $8,000 check for benefit

payments that were overdue as well as one more check.

Then, from her point of view, the checks again ceased
No. 01-2192 3

arriving. This was because Bonner, armed with the power

of attorney, asked the VA in August of 1994 to send all

benefits due Angelita to a post office box that he had set

up in Gary, Indiana. In 1995, Bonner filed a request

that Angelita’s benefit payments be directly deposited in

his bank account in Chicago.

In 1995, Bonner notified Angelita that she would be

receiving a check for approximately $33,000 from the VA.

He asked for a 20% cut of that check for his expenses.

Not suspecting anything yet, when she received the check

in November 1995 she sent Bonner some $3,000 in compensation. Bonner then contacted the VA, fraudulently

claiming that the $33,000 check made out to Angelita

had been lost and should be re-sent to his address in

Indiana. The VA took him at his word and sent him another check on November 20, 1995, which he deposited

in his Chicago bank account.

Angelita thought it odd that after she received the

$33,000 check, she was once again no longer receiving

any current benefits. Instead of going through Bonner, this

time she asked the VA directly about the cessation of her

benefit payments. The VA responded that her benefit

payments were being sent to her attorney-in-fact, Vernon

Bonner. Angelita took another trip to the VA in New

York to sort matters out, and for a time she again was

receiving the check due to her. In March 1996, the VA

noticed that two copies of the same $33,000 check had

been cashed and asked Bonner for an explanation as

well as repayment of the amount improperly deposited.

(Angelita was not notified at that time that two copies

of the check had been deposited.) Bonner suggested to

the VA that it should merely suspend sending further

checks to Angelita until the overpayment had been recouped. The VA agreed and stopped sending the checks

to Angelita in July 1996. That was the first time it

told Angelita about the double cashing of the $33,000
4 No. 01-2192

check. The VA opened a criminal investigation into the

matter, and Angelita received no more checks until December 1999.

In conjunction with the investigation over the cashing

of both checks, Bonner and Angelita were both asked

to provide handwriting exemplars. Bonner declined to

speak with investigators, but he did produce the handwriting exemplars in response to a grand jury subpoena.

He did this on April 14, 1998, at the Hines VA medical

center in Illinois. Agent Bryan Penton, who was present

during those proceedings, had earlier received a mail

package from Bonner, which contained postal receipts,

the power of attorney, and a letter from Bonner to the

VA concerning the status of Angelita’s inquiries. Bonner

declined to discuss these items with Agent Penton.

At trial, the jury heard competing tales of these events.

Bonner painted himself as a friend of the family who

had had an intimate relationship with Angelita and who

loaned her substantial sums of money over the years. He

contended that he was merely helping her receive her

benefits and repaying himself for the loans along the way.

Angelita’s story was that Bonner was a casual acquaintance of her husband who occasionally would stop by the

couple’s place in Brazil. Upon her husband’s death, she

contended, Bonner took advantage of his position as a

supposed friend of the deceased to bilk her, convincing her

that he was going to help her with the benefits and instead robbing her of what she was due. While Angelita

acknowledged that Bonner had, at one point, made her

a $150 loan, she contended that she had repaid it with

interest.

A string of witnesses took the stand, some of whom figure

in Bonner’s appeal. Angelita’s character was bolstered

improperly, he claims, by the testimony of Claudia Grahamm, an acquaintance of Angelita’s who on occasion
No. 01-2192 5

helped her write letters in English to the VA and who

attested at trial to Angelita’s honesty. Mr. Blake, who

also helped Angelita during her visits to the United

States and to the VA, also testified as to her honesty

and reliability. Agent Penton testified that Angelita’s

benefits had been restored once she was cleared of this

investigation. He further testified that Bonner behaved

deceitfully upon their first encounter and refused to answer questions regarding certain exculpatory documents

he had produced. Mr. Farrell Tate, a common acquaintance of Bonner and the Kettleses, expressed doubts as

to Bonner’s reputation for honesty and truthfulness and

claimed that Bonner was not a generous person. Clariva

Miranda, an acquaintance of Bonner who would have

testified that he had gone to Bonner’s house to translate

a telephone conversation into Portuguese, was not allowed to testify.

II

On this appeal, Bonner takes issue with several evidentiary rulings of the district court, and asks for a new trial.

When a defendant has objected at trial to the admission

or exclusion of evidence, we review the district court’s

ruling only for abuse of discretion. United States v.

Montani, 204 F.3d 761, 765 (7th Cir. 2000) (admission

of evidence); United States v. Lane, 267 F.3d 715, 719 (7th

Cir. 2001) (exclusion of evidence). When no such objection has been made, the point is forfeited and the defendant may prevail only upon a showing of plain error.

United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).

Even if plain error occurred, the defendant is entitled to

a new trial only if she “probably would not have been

convicted but for the erroneously admitted evidence.”

United States v. Kellum, 42 F.3d 1087, 1092 (7th Cir.

1994) (quotations omitted).
6 No. 01-2192

A. Introduction of Evidence about Angelita’s Character

Angelita was the government’s principal witness. The

prosecution sought to introduce several statements that

were aimed at bolstering her trustworthiness, including

the statements from Claudia Grahamm and Dean Blake,

and a statement from Agent Penton that Angelita’s benefits had been restored in 1999.

“Witness bolstering,” or “offering evidence solely for the

purpose of enhancing a witness’s credibility before that

credibility is attacked,” United States v. Scott, 267 F.3d 729,

734 (7th Cir. 2001) (quotations omitted), is impermissible,

at least in the first instance. Once the credibility of the

witness has been challenged, however, such evidence

may be offered to rehabilitate a witness in the eyes of the

jury. See id.; see also FED. R. EVID. 608(a)(2) (“evidence

of truthful character is admissible only after the character

of the witness for truthfulness has been attacked”). The

district court found that Angelita’s character had been

challenged and thus that rehabilitation evidence was

proper.

Bonner disagrees. Because he did not object on this

specific ground to the witnesses we are considering, we

review this part of the case only for plain error. In fact,

it would not matter if we were reviewing for abuse of

discretion, because we find ample evidence in the record

to support the district court’s view. In his opening statement, after setting out his version of the events, Bonner’s

counsel stated: “Now, I don’t expect Ms. Kettles to agree

to that, because now she is receiving government benefits again, and she had been cut off in the past.” He also

suggested that Angelita would not confirm Bonner’s

story because she had recently been cleared of the investigation. On cross-examination, Angelita was questioned

by the defense about her receipt of money from the VA

in connection with the fact that she “would have to tes-
No. 01-2192 7

tify against Mr. Bonner.” These were all statements that

implied that Angelita might have gained some advantage

from cooperating with the government’s case, and as

such, they are precisely the kind that allow for testimony aimed at rehabilitation of the witness’s character.

See, e.g., United States v. Lindemann, 85 F.3d 1232, 1242

(7th Cir. 1996). Given these attacks on her credibility,

the district court did not err in admitting the evidence

Bonner has challenged.

One supposedly improper statement came from

Grahamm, who testified positively about “what kind of

woman Mrs. Kettles is.” Dean Blake also testified that

Angelita was “an honest mother, she was a good wife, and

she is a friend of mine” in response to a question about

Angelita’s reputation for truthfulness and honesty. Defense

counsel objected, but on the issue of foundation, not on

the propriety of bolstering. The district court directed

that the question be made more precise, and defense

counsel did not object to the reformulated question that

elicited the challenged response.

Bonner also challenges Agent Penton’s testimony that

Angelita’s benefits were restored prior to trial after she

was exonerated, claiming that this was a bolstering statement given that Penton was sitting at the prosecution’s

table. It is true that the behavior of a witness, like

an investigator who sits at the prosecution’s table, can be

scrutinized in light of the inference the jury may draw

from the close nexus between the witness and the prosecutor. See, e.g., United States v. Davis, 532 F.2d 22, 28

(7th Cir. 1976) (it was improper for prosecution witness

seated at prosecutor’s table to rear back and laugh during cross-examination of defendant). But here, we can

detect no impropriety in the admission of the agent’s

testimony. The fact standing alone that Agent Penton sat

at the prosecution’s table is not a reason to exclude this

statement, especially in the absence of a specific objection.
8 No. 01-2192

B. Introduction of Bonner’s Character Evidence

Bonner also objects to the introduction by the prosecution

of negative “character evidence” about himself. General

evidence of the defendant’s character is inadmissible in

criminal cases. See United States v. Romero, 189 F.3d 576,

587 (7th Cir. 1999); FED. R. EVID. 404(a). Such evidence

becomes admissible, however, where the defendant has

introduced evidence aimed at portraying his own character

in a positive light, and the prosecution is merely trying

to counter the inferences to be drawn from such statements.

See FED. R. EVID. 404(a)(1). The prosecution may, for instance, introduce evidence of a defendant’s bad reputation

after a defendant has put her reputation at issue. See, e.g.,

United States v. Marrero, 486 F.2d 622, 626 (7th Cir. 1973).

Here, the defense chose to introduce evidence of Bonner’s honesty and generosity. Bonner’s counsel harped

on the bonds of trust between Bonner and Angelita as

well as Bonner’s generosity, pointing out that Bonner

did things for Angelita that no one else bothered to do.

Counsel’s opening statement also lauded Bonner’s character, thus “opening the door” to the prosecution’s evidence.

United States v. Jordan, 722 F.2d 353, 358 (7th Cir. 1983);

see also United States v. Pacione, 950 F.2d 1348, 1353

(7th Cir. 1992).

To respond to Bonner’s benevolent picture of himself, the

prosecution elicited the testimony of Mr. Tate, a government lawyer who had known Bonner for over a decade.

Tate testified that despite their long acquaintance, he

did not know anything about Bonner’s reputation for

truthfulness and honesty. To the question “Do you know

if the Defendant is a generous person?” Tate replied “No.”

We do not dispute that Tate’s testimony was quite damning, but it was fair game under the circumstances. Once

again, although the lack of a timely and specific objection

leaves us with only plain error review, the standard

makes little difference. Under any standard, we are satis-
No. 01-2192 9

fied that defense counsel sufficiently brought into issue

Bonner’s good character to allow the government to counter

by presenting Tate’s testimony.

Bonner similarly challenges the following colloquy

with Agent Penton, which occurred in the course of discussing the handwriting samples:

Q. That’s the first one he did. At the time he started

providing these exemplars, how is he seated?

A. He was seated directly across from me.

Q. What did you observe him to be doing as he’s

writing these exemplars?

A. As he was providing the handwriting exemplars,

I don’t know if I should use the word or not—Mr.

Bonner appeared to be acting very deceptive in

providing these—.

DEFENSE COUNSEL: Objection, your Honor.

THE COURT: I’m sorry.

DEFENSE COUNSEL: Not responsive to the question.

THE COURT: Repeat the question again.

Q. Agent Penton, what did you observe Mr. Bonner to

be doing as he was providing the handwriting

exemplars?

. . . 

THE COURT: The last answer before is ordered

stricken. The jury will disregard the

last answer [. . .] I’m sorry, Mr.

Schlesinger [Defense Counsel], there

was an objection. Does that satisfy

you, Mr. Schlesinger?

DEFENSE COUNSEL: Yes.
10 No. 01-2192

As the district court sustained the objection and asked the

jury to disregard the comment, Bonner has little to complain about. Absent truly unusual circumstances, errors

that are the subject of curative instructions are deemed

harmless. See Greer v. Miller, 483 U.S. 756, 767 (1987);

United States v. Robbins, 197 F.3d 829, 836 (7th Cir. 1999).

There is a very strong presumption that a jury has understood and followed the trial court’s limiting instruction,

erasing the improper influence that might have been

caused by the stricken statement. See United States v.

Moore, 115 F.3d 1348, 1358 (7th Cir. 1997). We have no

reason to believe that the jury disregarded the corrective instruction or that it was inadequate to address the

problem.

C. Evidence that Bonner Declined To Speak to an Agent

Bonner also argues that the admission of testimony about

his silence during the handwriting exemplar procedure at

Hines violated his Fifth Amendment right against compulsory self-incrimination. The prosecution attempted to

introduce evidence of Bonner’s pre-arrest silence through

the following exchanges:

Q. And at the time you served that subpoena, did you

speak with him at all?

A. No, I asked him—I handed him the subpoena and

told him that he was a subject of a criminal investigation and asked if he understood what he read in

the subpoena and he said yes. I asked him if he was

willing to talk to me at that time, and he stated no.

Penton went on to describe the meeting during which

Bonner provided the handwriting exemplars:

Q. By the way, does he talk to you at all, does he want

to discuss the investigation with you when he

comes in to give you the handwriting exemplars?
No. 01-2192 11

A. No, Ma’am. At that time, I asked him if he was

willing to talk—specifically I asked him about these

documents also. I asked him if he was willing to be

interviewed at that time.

DEFENSE COUNSEL: Objection. May we approach?

After a side bar, Penton’s testimony continued as follows:

Q. Agent Penton, can you resume your answer?

A. Yes, Ma’am. I asked Mr. Bonner if he was willing to

talk to me. Specifically, I wanted to talk to him

about the exhibit here, Exhibit 47, and ask him if

he was willing to speak to me about the investigation and possible involvement in the fraud scheme.

At that time he evoked [sic] his right to an attorney.

Bonner argues that such explicit testimony about his

silence was inadmissible under Grunewald v. United States,

353 U.S. 391 (1957). Grunewald held that it was improper

to admit testimony about a defendant’s refusal to speak

to a grand jury pursuant to a subpoena. Id. at 424. Where

a prosecutor on her own initiative asks the jury to draw

an adverse inference from a defendant’s silence, Griffin

v. California, 380 U.S. 609, 613 (1965) holds that the

Fifth Amendment privilege against self-incrimination is

violated. A defendant’s right to silence, coupled with her

right not to have any reference to her silence made at trial,

exists even before the defendant receives Miranda warnings. United States ex rel. Savory v. Lane, 832 F.2d 1011,

1017-18 (7th Cir. 1987). The government suggests that

we need not consider Bonner’s argument for the simple

reason that he was not yet “in custody” during his encounter with Agent Penton; we prefer, however, not to

resolve that point, since it is clear in any event that

there was nothing wrong with the reference to Bonner’s

selective silence.
12 No. 01-2192

As the government does not dispute the applicability of

Savory v. Lane to Bonner, we will assume that his silence

is equivalent to the silence of a defendant who is first

approached by a prosecutorial body. We also assume for

the sake of argument that Bonner is asserting that the

reference to his silence was, on these facts, an implicit

invitation to the jury to draw a negative inference from

that silence. (Note that it is only the latter that Griffin

addresses. If Bonner is not saying that, then Griffin cannot help him anyway.) But all these assumptions favorable

to Bonner do not lead to the conclusion that his rights

were violated. The government argues, and we agree,

that Bonner’s words and conduct fell within the rule of

United States v. Davenport, 929 F.2d 1169, 1174 (7th Cir.

1991), which holds that if a defendant starts down an

exculpatory path by providing statements, and then

clams up and refuses to expand on those statements, the

latter silence may be introduced at trial. Davenport rests

on two propositions. On the one hand, it would be unseemly or dishonest if a prosecutor could purport to respect

the silence of an accused at one stage and then use

that same silence at a later stage of the same prosecution to create an inference of guilt. Conversely, it would

not serve the criminal justice system to allow defendants

to use the Fifth Amendment both as a shield and as a

sword, answering questions selectively and preventing

the prosecution from mentioning such selectiveness at

trial. See also McGahee v. Massey, 667 F.2d 1357, 1364

(11th Cir. 1982) (“[T]he law does not provide a sword by

which the defendant may selectively testify as to the

merits of his prosecution, yet shield himself from comment on his failure to explain incriminating evidence

properly admitted prior to his testimony.”).

We have a Davenport situation here because Bonner

voluntarily provided documents to Agent Penton aimed

at dispelling any incriminating evidence the government
No. 01-2192 13

had. Once he did that, the government was entitled to

mention at trial that Bonner refused to talk about

those same documents when he became concerned that

he might incriminate himself. We acknowledge that Bonner’s case is a bit different from the Davenport pattern,

insofar as Bonner merely presented his documents (without oral commentary) and then refused to answer questions. But this is a distinction without a difference. The

defendant in Davenport tried to tell an exculpatory story,

and when pressed for details, invoked the Fifth Amendment. Bonner’s proffer of documents beyond the scope of

the subpoena was exactly the same kind of attempt to

exculpate as the defendant’s initial oral statements in

Davenport. Unlike the handwriting samples that Bonner

was compelled under subpoena to supply (and thus which

were not testimonial under Schmerber v. California, 384

U.S. 757, 765 (1966)), his offer of the power of attorney

and the letter he wrote to the VA on Angelita’s behalf

were not compelled. Instead, his act of producing them

was designed to support his story, and that act was the

equivalent of testimony. Davenport controls here, and

thus Bonner’s rights were not violated when Agent

Penton testified about his unwillingness to discuss those

particular documents.

D. Exclusion of Proposed Testimony of a Defense Witness

The last arrow in Bonner’s quiver is the trial court’s

decision to exclude the testimony of Clariva Miranda.

According to defense counsel’s offer of proof, Miranda, an

acquaintance of Bonner who spoke Portuguese, would

have testified that he had had two phone conversations

in Portuguese with a person who identified herself as

Angelita Kettles.

The prosecution objected to Miranda’s proposed testimony, contending that it was not tied to an identifiable
14 No. 01-2192

time period and was being offered solely in an attempt

to impeach a government witness. Defense counsel basically conceded the point about the purpose of Miranda’s

contribution, noting that it would impeach Angelita’s

testimony that she had not spoken to Miranda on the

telephone. Counsel repeated several times that Miranda’s

testimony was “only offered for the limited purpose

of impeachment.” Based on this, the trial court sustained

the objection, after having given defense counsel ample

opportunity to argue why the testimony was proper.

The district court correctly recognized that Miranda’s

proposed evidence ran afoul of FED. R. EVID. 608(b), which

provides that extrinsic evidence of a witness’s conduct

cannot be introduced solely for the purpose of impeachment.

While impeachment testimony is allowed, and indeed is

indispensable for the adversary criminal system, “one may

not contradict for the sake of contradiction; the evidence

must have . . . an independent ground for admission.”

United States v. Kozinski, 16 F.3d 795, 806 (7th Cir. 1994).

Bonner has shown no such independent ground, “the

impeaching fact could not have been introduced into

evidence for any purpose other than contradiction.” Id.

Miranda’s testimony was thus collateral and properly

excluded. See Taylor v. National R.R. Passenger Corp., 920

F.2d 1372, 1375 (7th Cir. 1990). See also United States v.

Goot, 894 F.2d 231, 239 (7th Cir. 1990); United States v.

Rovetuso, 768 F.2d 809, 817 (7th Cir. 1985).

Bonner now argues that independent grounds for admission existed because Miranda’s statement would have

shown that Bonner took steps to communicate with

Angelita to help her resolve the VA troubles and would

make it likely that Angelita knew of and approved the

transaction. It is hard to see how all this could be shown

through evidence that a third party spoke on the telephone with a woman who identified herself as Angelita.

In any event, he made no such argument to the district
No. 01-2192 15

court, and we are satisfied that the district court did not

abuse its discretion in its ruling.

V

For these reasons, we AFFIRM Bonner’s conviction.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—9-13-02