United States v. Bonner, Vernon

Court Case Details
  • Case Name: United States v. Bonner, Vernon
  • Court: Court of Appeals for the Seventh Circuit
  • Filed: September 13, 2002
  • Precedential Status: Published
  • Docket #: 01-2192
  • Judges: Per Curiam
  • Nature: criminal
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-2192

U

S

A

,

NITED

TATES OF

MERICA

Plaintiff-Appellee,

v.

V

B

,

ERNON

ONNER

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 00 CR 55—Rudy Lozano, Judge.

____________

A

J

11,

2002—D

S

13,

2002

RGUED

ANUARY

ECIDED

EPTEMBER

____________

Before E

,

K

, and D

P.

W

, Circuit

ASTERBROOK

ANNE

IANE

OOD

Judges.

D

P.

W

, Circuit Judge. A jury found Vernon

IANE

OOD

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 Administra-
tion (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 pay-
ments (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 Eng-
lish, she was helped in this process by Dean Blake, a
family friend. The trip proved fruitless, and Angelita re-
turned 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 cer-
tificate 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 com-
pensation. 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 an-
other 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 re-
couped. 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 De-
cember 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 hand-
writing 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 acquain-
tance 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 in-
stead 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 Gra-
hamm, 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 an-
swer questions regarding certain exculpatory documents
he had produced. Mr. Farrell Tate, a common acquain-
tance 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 al-
lowed to testify.

II

On this appeal, Bonner takes issue with several eviden-

tiary 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 objec-
tion has been made, the point is forfeited and the defen-
dant 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 bene-
fits 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 F

.

R.

E

. 608(a)(2) (“evidence

ED

VID

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 state-
ment, 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 bene-
fits 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 inves-
tigation. 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 testi-
mony 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 state-
ment 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 pros-
ecutor. 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 dur-
ing 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); F

.

R.

E

. 404(a). Such evidence

ED

VID

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 F

.

R.

E

. 404(a)(1). The prosecution may, for in-

ED

VID

stance, 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 Bon-

ner’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 charac-
ter, 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 govern-
ment 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 damn-
ing, 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 discuss-
ing 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 ques-

tion.

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 com-
plain 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 under-
stood 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 correc-
tive 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 compul-
sory 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 investi-
gation 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 investiga-
tion 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 warn-
ings. 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 en-
counter 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 can-
not 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 unseem-
ly 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 prosecu-
tion 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 com-
ment 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 Bon-
ner’s case is a bit different from the Davenport pattern,
insofar as Bonner merely presented his documents (with-
out oral commentary) and then refused to answer ques-
tions. 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 Amend-
ment. 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 testi-

mony, 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 basic-
ally 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 F

.

R.

E

. 608(b), which

ED

VID

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 ad-

mission 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 tele-
phone 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 A

Bonner’s conviction.

FFIRM

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—9-13-02

Referenced Cases

  1. United States v. William L. Curtis
  2. United States v. Ronald L. Davenport and Betty L. Davenport
  3. United States v. Charles Stanley Jordan
  4. United States v. Donald K. Lane
  5. United States v. John J. Montani
  6. United States v. Ernest T. Davis
  7. United States v. Carol Kozinski
  8. United States v. Mario Marrero
  9. United States v. Nicholas Tyrone Moore
  10. United States v. Richard Romero
  11. United States v. Stephen Goot
  12. United States v. Victor E. Robbins
  13. United States of America Ex Rel. Johnnie L. Savory v. Michael Lane
  14. United States v. Flakes Kellum and Lynetta P. Durr
  15. United States v. George Lindemann, Jr.
  16. United States v. Sam R. Rovetuso
  17. United States v. Ronald J. Pacione
  18. United States v. David Scott
  19. Robert McGahee v. Raymond D. Massey
  20. Griffin v. California
  21. Schmerber v. California
  22. Grunewald v. United States
  23. Greer v. Miller