Date: 06-06-2018

Case Style:

Case Number: 17-2244

Judge: Flaum

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: Charlise Williams was charged in a
five‐count indictment for bankruptcy fraud. After a weeklong
jury trial, she was found guilty on all counts and sentenced
to a below‐Guidelines prison term of 46 months. On
appeal, Williams argues that the district court erred by: (1) restricting
her ability to cross‐examine witnesses in violation of
the Confrontation Clause; and (2) applying certain Guidelines
2 No. 17‐2244
offense‐level enhancements based upon the total loss amount
and number of victims. We affirm.
I. Background
A. Factual Background
On December 14, 1999, Williams purchased two combined
condominium units (collectively, the “condominium”) overseen
by the South Commons Condominium Association
(“SCCA”). Williams financed the purchase with a mortgage,
and refinanced twice. By 2003, Williams fell behind on payments
to various creditors, including to SCCA for condominium
association fees.
On January 30, 2003, Williams filed the first, of eventually
five, Chapter 13 Bankruptcy petitions in the Bankruptcy
Court for the Northern District of Illinois. Importantly, when
an individual files a bankruptcy petition, all creditors are automatically
stayed from initiating debt collection activities.
Her scheme was generally as follows. After filing for bankruptcy,
Williams would fail to make all required payments as
required by her Chapter 13 payment plan. As a result, the
bankruptcy court would dismiss the case. After the dismissal,
SCCA would often file eviction and collection suits. Williams
would then file a new Chapter 13 bankruptcy petition in order
to stay the action. Again, Williams would fail to make most of
the required plan payments, and the cycle would continue.
Notably, after voluntarily dismissing her second bankruptcy
petition, Williams arranged to temporarily transfer the
condominium to a companion, Ekkehard Wilke. On March 21,
2005, Williams and Wilke signed two documents: a warranty
deed by which Williams transferred the condominium to
Wilke, and a quitclaim deed that returned title to Williams.
No. 17‐2244 3
Williams recorded the warranty deed on April 12, 2005 and
the quitclaim deed on May 12, 2005. At Williams’s trial, Wilke
testified that he provided nothing of value in exchange for title
and never lived in the condominium. With title in his
name, Wilke obtained two mortgage loans secured by the condominium.
Neither Williams nor Wilke made all the required
payments. Moreover, in her bankruptcy petitions that followed,
Williams failed to disclose the transfers of her condominium
to and from Wilke. Additionally, she told the bankruptcy
court that Wilke was a co‐debtor and agreed to contribute
$1,324 a month toward the mortgage. However, at
trial, Wilke testified this was not true.
After dismissing Williams’s fifth and final petition, on December
4, 2009, the bankruptcy court also barred Williams
from filing a new bankruptcy case for 180 days. As a result,
SCCA’s eviction suits could proceed. However, in January
2010, Williams and Wilke agreed to a plan that Williams believed
could prevent eviction: Williams would transfer title of
the condominium to Wilke, and Wilke would file for bankruptcy
in his name. Like in 2005, Williams prepared two
deeds—a warranty deed transferring title from Williams to
Wilke, and a quitclaim deed transferring title back to Williams.
Wilke and Williams signed both deeds, which were
later notarized. The warranty deed was recorded on February
1, 2010. The quitclaim deed was not recorded until March 4,
2011.
On February 9, 2010, Wilke filed a Chapter 13 bankruptcy
petition stating the condominium was his property. Because
neither Wilke nor Williams made the required plan payments,
Wilke’s attorney suggested converting the bankruptcy to a
Chapter 7 case. Wilke testified Williams opposed this change
4 No. 17‐2244
because she would lose ownership of the condominium. In
April 2010, an attorney filed a motion on behalf of Wilke requesting
an order staying SCCA’s eviction proceedings and
seeking sanctions against SCCA. The motion stated that Wilke
owned the condominium and Williams rented from Wilke. At
trial, however, Wilke testified that he did not retain this attorney
or ask him to file the motion. On May 11, 2010, Wilke admitted
to the bankruptcy court that he testified falsely to benefit
Williams, and the court dismissed his bankruptcy case.
B. Procedural Background
On October 2, 2014, Williams and Wilke were charged in a
five‐count indictment for bankruptcy fraud under 18 U.S.C.
§§ 157(1) and (2). Wilke pled guilty to a misdemeanor and
agreed to cooperate with the government in its prosecution of
Williams. Williams proceeded to trial, which began on June
13, 2016. The government called several witnesses, including
SCCA board member Carrolyn Patterson, SCCA attorney David
Sugar, and Wilke.
Relevant to this appeal, on cross‐examination, defense
counsel sought to ask Patterson and Sugar about a class action
lawsuit Williams had filed against SCCA in order to show that
SCCA had strong negative feelings about Williams. Additionally,
Williams sought to ask the witnesses about SCCA’s treatment
of Williams relative to other tenants, and specifically,
whether SCCA offered her a payment plan. The government
raised a Federal Rule of Evidence 403 objection to this line of
questioning. The court, while recognizing that Williams could
cross‐examine the witnesses to show bias, restricted questioning
as to these topics. It permitted defense counsel to ask the
witnesses whether they were aware of Williams’s role in filing
the class action and the related legal fees, but barred further
No. 17‐2244 5
inquiry into the substance of her allegations. It reasoned that
the topics “raise[d] a jury nullification issue” because they
were an attack on the underlying debt, which was irrelevant
to the elements of bankruptcy fraud.
On June 20, 2016, after a week‐long jury‐trial, Williams
was found guilty on all five counts charged in the indictment;
on December 14, the district court denied Williams’s motion
for acquittal or a new trial. The court held a sentencing hearing
on May 30, 2017. It determined Williams had a base offense‐
level of 6 and criminal history category of I. The government
sought several offense‐level enhancements, two of
which are relevant to this appeal: ten levels for causing a total
loss greater than $150,000 and two levels because the offense
involved ten or more victims. The government calculated total
loss at $193,291—“the increase in the amount of money
that defendant owed to her creditors (and which the creditors
were prevented from trying to collect) between when she filed
her first bankruptcy case and when she filed her fifth one.” It
determined that Williams’s offense involved more than ten
victims because in 2009, Williams had over thirty creditors she
did not have in 2003. Williams, on the other hand, maintained
that “the sole purpose of the scheme was for Ms. Williams to
maintain control of her condominium” and therefore, “liability
should be limited … to the loss that directly relates to
[SCCA].” She estimated that loss as $45,694—which warrants
only a six‐level increase—and claimed the only victim was
SCCA—which warrants no victim enhancement. The court
sided with the government. It explained:
[T]he fraudulent invocation of the automatic
stay stayed all creditors from … barking at her
6 No. 17‐2244
door. So each time the stays were filed, … anyone
that was in the queue waiting to be paid
would be considered both a victim of the stays
as well as for the loss amount.
With the enhancements, Williams’s adjusted offense level
was 24; combined with a criminal history category of I, the
Guidelines Range was 51–63 months’ imprisonment. Ultimately,
the district court imposed a below‐Guidelines prison
term of 46 months.
II. Discussion
A. Cross‐Examination
Williams first argues the district court erred in limiting the
scope of cross‐examination of witnesses Patterson and Sugar.
The Sixth Amendment’s Confrontation Clause guarantees
criminal defendants the right to confront witnesses at trial.
United States v. Linzy, 604 F.3d 319, 323 (7th Cir. 2010). It “reflects
the belief that adversarial proceedings are essential to
the truth‐seeking function.” United States v. Khan, 508 F.3d 413,
418 (7th Cir. 2007). Thus, “a district court must allow effective
cross‐examination.” Linzy, 604 F.3d at 323. But effective crossexamination
is not akin to unlimited cross‐examination. See
id.
“[W]hen deciding whether limits on cross‐examination
are permissible, we must first distinguish between the core
values of the Confrontation Clause and more peripheral concerns
which remain within the trial court’s ambit.” Id. (alteration
in original) (quoting United States v. Reyes, 542 F.3d 588,
593 (7th Cir. 2008)). “[O]ne such core value is the ability to expose
a witness’s motivation for testifying, his bias, or his posNo.
17‐2244 7
sible incentives to lie … .” Id. (quoting United States v. Recendiz,
557 F.3d 511, 530 (7th Cir. 2009)); see also United States
v. Manske, 186 F.3d 770, 778 (7th Cir. 1999) (“[E]xposing witness
bias is at the ‘core’ of the confrontation right.”). Thus, if
“‘the defense is completely forbidden from exposing the witness’s
bias or motive to testify,’ then the constitution is implicated.”
Manske, 184 F.3d at 778 (quoting United States v. Sasson,
62 F.3d 874, 883 (7th Cir. 1995)).
Critically, however, “the Sixth Amendment is not implicated
every time a limit is placed on a defendant’s right to expose
bias.” Id. Indeed, “once a trial court permits a defendant
to expose a witness’s motivation, it is of peripheral concern to
the Sixth Amendment how much opportunity defense counsel
gets to hammer that point home to the jury.” Linzy, 604
F.3d at 323 (internal quotation marks omitted) (quoting Recendiz,
556 F.3d at 530). Put another way, “the Confrontation
Clause guarantees only an opportunity for effective cross‐examination,
not cross‐examination that is effective in whatever
way, and to whatever extent, the defense might wish.” Id. (internal
quotation marks omitted) (quoting Kentucky v. Stincer,
482 U.S. 730, 739 (1987)).
We first review, de novo, “whether the limit foreclosed an
opportunity to expose biased or false testimony, thereby affecting
the ‘core functions’ of the Confrontation Clause.”
Khan, 508 F.3d at 418 (quoting United States v. Smith, 454 F.3d
707, 714 (7th Cir. 2006)). Then, to the extent “the ‘core functions’
of the Confrontation Clause remain intact, [we] ensure[]
merely that the district court’s exercise of its ‘wide discretion’
in limiting cross‐examination was not abusive.” Id. (quoting
Smith, 454 F.3d at 714).
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Williams argues her Confrontation Clause rights were violated
because “[t]he jury was deprived of the ability to observe
Ms. Patterson’s and Mr. Sugar’s demeanor when confronted
with questioning as to their bias against Ms. Williams
or motives to lie.” Specifically, she maintains that defense
counsel was barred from asking about the class action filed
against SCCA and about SCCA’s treatment of Williams compared
to other tenants. We disagree. To be sure, the court limited
the extent to which Williams could question Patterson
and Sugar as to these issues. But contrary to Williams’s claim,
defense counsel “was not entirely precluded from delving
into the discussion.” See Reyes, 542 F.3d at 594.
First, the district court permitted defense counsel to ask
Patterson and Sugar a series of questions relating to the class
action. Patterson testified on cross that she was aware of the
lawsuit, that SCCA paid legal fees to defend the lawsuit, and
that Williams attempted to recruit other tenants to join the
class. The court reasoned:
I think that there’s some area of cross available
for that, which is that [Patterson has] come here
as a government witness, her testimony is for
the purpose of proving the government’s case,
and she has this history with the defendant that
might make her biased against her and more biased
for the government. Bias is always an area
of cross.
Likewise, the court allowed Williams to pose questions about
the class action, including legal fees, to Sugar. It told defense
counsel:
No. 17‐2244 9
[T]he fact that [Williams and SCCA are] in litigation
and the fact that [Sugar] is actually the
attorney that defended the person that [Williams]
sued, I think that can be an angle of bias.
You can explore it only for that purpose, but not
for relevancy to the charge, because you haven’t
articulated a defense theory yet as to how it
could be.1
Second, the court allowed defense counsel to ask several
questions about SCCA’s treatment of Williams relative to
other tenants, and specifically, about the availability of payment
plans. As the court wrote in rejecting Williams’s motion
for a new trial:
In truth, the Court permitted numerous questions
regarding whether others were given payment
plans and whether the defendant was offered
one. The Court also permitted the line of
questions that elicited that Williams may have
been treated differently because she had filed a
lawsuit, encouraged others to join her in her
lawsuit, and was not offered a payment plan. As
such, the defense was given the materials that it
needed to argue, if it wanted, that Williams was
treated differently by [SCCA] due to her filing
of the lawsuit.
1 As the district court noted in denying Williams’s motion for acquittal or
a new trial, defense counsel’s questioning of Sugar “fell flat because Sugar
testified that no lawsuit was filed.”
10 No. 17‐2244
In short, the district court allowed Williams to “establish that
[Ptterson and Sugar] may have had a motive to lie”; it is therefore
permissible that the court’s “limitations denied [Williams]
the opportunity to add extra detail to that motive.” See
Linzy, 604 F.3d at 324 (quoting Recendiz, 556 F.3d at 530).2
Because the court’s cross‐examination limitations did not
impact the “core functions” of the Confrontation Clause, we
review only for abuse of discretion. We “give[] district courts
‘wide latitude’ and ‘allow[] [them] to set reasonable limits on
the scope and extent of cross‐examination based on concerns
about … harassment, prejudice, confusion of the issues, the
witness’s safety [and] marginal[] relevance.’” Manske, 186 F.3d
at 777 (first and second alterations added) (quoting United
States v. Graffia, 120 F.3d 706, 712 (7th Cir. 1997)).
The district court did not abuse its discretion. It limited
cross‐examination of issues relating to the class action and
2 Williams’s citation to Davis v. Alaska, 415 U.S. 308 (1974) is not persuasive.
In Davis, the Court found a Confrontation Clause violation because
“[w]hile counsel was permitted to ask [the witness] whether he was biased,
counsel was unable to make a record from which to argue why [the
defendant] might have been biased or otherwise lacked that degree of impartiality
expected of a witness at trial.” Id. at 318. The Court explained
that “[o]n the basis of the limited cross‐examination that was permitted,
the jury might well have thought that defense counsel was engaged in a
speculative and baseless line of attack on the credibility of an apparently
blameless witness.” Id. Here, in contrast, the district court did not just allow
defense counsel to ask Patterson and Sugar if they were biased. Instead,
it allowed counsel to ask the witnesses, for example, whether they
knew about the class action and about legal fees. Thus, unlike in Davis,
defense counsel was “permitted to expose to the jury the facts from which
jurors … could appropriately draw inferences relating to the reliability of
the witness.” See id.
No. 17‐2244 11
SCCA’s treatment of Williams because it determined that such
testimony had minimal‐to‐no relevance and imposed a risk of
prejudicing and confusing the jury. Specifically, the court explained
that “any kind of battle that [Williams] had with
[SCCA] regarding the assessments raises a jury nullification
issue” because:
It’s essentially saying that the debts that she’s
presenting in the bankruptcy are debts that
shouldn’t have been debts in the first place, so
it’s like a collateral attack on a debt that is the
debt that [Williams is] trying to get rid of,
whereas the elements of bankruptcy fraud have
nothing to do with [determining] whether the
debt is a valid debt.
In other words, “it isn’t a defense for this jury to unilaterally
… look at the problem in the underlying debt and
say … that’s not a good debt.” The court did not want the jury
“to believe that they [could] reach a conclusion that says
[SCCA] didn’t treat [Williams] well, so we’re going to acquit
because that was bad for her.” The court acted well within its
discretion in recognizing the “marginal relevance” of the testimony
and concerns about “prejudice” and “confusion of issues.”
See Manske, 186 F.3d at 777.
B. Sentencing Guidelines
Next, Williams challenges the district court’s application
of two specific offense characteristics used to determine her
Guidelines adjusted offense level. She argues the district court
erred in: (1) calculating the total loss amount; and (2) determining
the number of total victims. We review the court’s factual
findings related to its Guidelines calculation—including
12 No. 17‐2244
its determination of total loss and number of victims—for
clear error. United States v. Rosen, 726 F.3d 1017, 1024 (7th Cir.
2013); United States v. Harris, 718 F.3d 698, 703 (7th Cir. 2013).
1. Loss Calculation
“The Sentencing Guidelines provide for an increase in offense
level based upon the amount of loss resulting from an
offense.” Rosen, 726 F.3d at 1024; see U.S.S.G. § 2B1.1(b)(1). For
purposes of this provision, “loss” means “the greater of actual
loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). Actual
loss, which is what the government sought to prove here, is
defined as “the reasonably foreseeable pecuniary harm that
resulted from the offense.” Id. To be “reasonably foreseeable,”
the defendant must have known, or reasonably should have
known, that the pecuniary harm “was a potential result of the
offense.” Id. “It is the government’s burden to prove the loss
amount by a preponderance of the evidence.” United States v.
Johns, 686 F.3d 438, 454 (7th Cir. 2012).
“[T]he calculation of loss in a bankruptcy fraud case can
be rather complicated.” United States v. Edgar, 971 F.2d 89, 93
(8th Cir. 1992). Thus, “the district court need only make ‘a reasonable
estimate of the loss’ in applying the enhancement.”
United States v. White, 737 F.3d 1121, 1142 (7th Cir. 2013) (quoting
U.S.S.G. § 2B1.1 cmt. n.3(C)). “[O]n appeal, a defendant
must ‘show that the court’s loss calculations were not only inaccurate
but outside the realm of permissible computations.’”
Id. (quoting United States v. Love, 680 F.3d 994, 999 (7th Cir.
2012)). We reverse “only when we are ‘left with the definite
and firm conviction that a mistake has been made.’” Id. (quoting
United States v. Cruz‐Rea, 626 F.3d 929, 938 (7th Cir. 2010));
see also United States v. Gordon, 495 F.3d 427, 431 (7th Cir. 2007)
(“The district court judge is in the best position to assess the
No. 17‐2244 13
evidence and estimate the loss based on that evidence and
thus this court must defer to the district court’s determination
of loss—and of course, its determination that the government
has met its burden of providing a reasonable estimate of
loss.”).
Here, the court reasonably adopted the government’s calculation
to impose a ten‐level sentencing enhancement. See
U.S.S.G. § 2B1.1(b)(1). It estimated, based on the “losses that
[Williams] herself admitted to in the filings … for the bankruptcy
relief,” that her increase in liabilities from 2003 to 2009
was $193,291. And it rejected Williams’s proposed alternate
calculation of $45,694 that was based solely on the loss directly
related to SCCA. The court’s determination is not
clearly erroneous and is supported by evidence at trial. Williams’s
liabilities increased from $233,605 to $426,896 between
her first and final bankruptcies, and her fraudulent use of
Chapter 13 caused the loss to her creditors.3 In fact, as the district
court stated, its total loss estimate was quite “conservative.”
Williams’s fraudulent activity occurring after 2009—
namely, transferring the condominium to Wilke so he could
file a Chapter 13 bankruptcy—resulted in additional loss to
Williams’s creditors.
Williams maintains the district court erred because “there
was no evidence presented—either at trial or at sentencing—
3 Williams’s citation to United States v. Whiting, 471 F.3d 792 (7th Cir. 2006)
is misplaced. There, the district court “correctly” acknowledged that the
standard required causation and stated that the defendant’s “misrepresentations
… caused the total loss,” but conceded certain facts were “not really
causal of losses.” Id. at 802. We thus held that “the district court improperly
applied the loss causation standard by finding both no causation
and causation.” Id. Here, however, there was no such mixed finding.
14 No. 17‐2244
that the underlying debts or the increase in debts, were the
results of criminal or unlawful conduct.” See United States v.
Schaefer, 291 F.3d 932, 939–40 (7th Cir. 2002) (noting the government
must demonstrate that the alleged fraudulent activities
“were unlawful”). This argument is not persuasive. Here,
the relevant question is not whether the debt was lawfully incurred.
Rather, what is pertinent is that by convicting Williams
of bankruptcy fraud, a jury determined that she filed
multiple Chapter 13 bankruptcy petitions in bad faith. As the
district court explained, Williams “fraudulent[ly]
invo[ked] … the automatic stay” to hide from her creditors
and prevent them from recovering their debts.
Williams also argues the district court failed to address
whether creditors other than SCCA were impacted. We disagree.
“[W]hen we evaluate the entirety of the sentencing transcript
and review the district court’s conclusion in context,” it
is clear the district court “made sufficient findings for us to
meaningfully review its decision.” See White, 737 F.3d at 1140.
The district judge explained that she understood the difference
between Williams’s and the government’s arguments;
Williams believed liability was limited to loss related to
SCCA, while the government thought Williams also caused
loss to other creditors. In siding with the government, the
court explained that Williams’s scheme impacted “all creditors.”
Even Williams concedes that the indictment against her
“alleged loss to multiple creditors.” Therefore, the district
court’s loss calculation was certainly within “the realm of permissible
computations.” See id. at 1142.
2. Number of Victims
The Sentencing Guidelines provide for a two‐level increase
in the offense level “[i]f the offense … involved 10 or
No. 17‐2244 15
more victims.” U.S.S.G. § 2B1.1(b)(2)(A)(i). For purposes of
the Guidelines, “victim” means “any person who sustained
any part of the actual loss determined under subsection
(b)(1).” Id. § 2B1.1 cmt. n.1. The burden is on the government
to show that “the individuals suffered pecuniary harm.”
United States v. Sutton, 582 F.3d 781, 785 (7th Cir. 2009).
Again, the district court adopted the government’s view
and imposed a two‐level sentencing enhancement. It reasoned
that even if the purpose of Williams’s scheme was “primarily
to keep herself within the condominium, there were so
many other people that were owed that did not get paid as a
result.” Indeed, the court emphasized that Williams had sixty
creditors in 2009 compared to just thirty‐one in 2003.
Williams contends “[t]he district court erred when it
counted each of Ms. Williams’ creditors as victims for purposes
of U.S.S.G. § 2B1.1.” Specifically, she maintains the government
“failed to show any pecuniary harm to creditors
other than SCCA.” Not so. The district court explained why it
rejected Williams’s argument that SCCA was the only victim:
[T]he fraudulent invocation of the automatic
stay stayed all creditors from … barking at her
door. So each time the stays were filed, … anyone
that was in the queue waiting to be paid
would be considered … a victim of the stays as
well as for the loss amount.
Courts have consistently recognized that creditors can be considered
victims in bankruptcy fraud cases for purposes of a
Guidelines offense‐level increase. See United States v. Middlebrook,
553 F.3d 572, 575 (7th Cir. 2009); see also United States v.
Longwell, 410 F. App’x 684, 691 (4th Cir. 2011); United States v.
16 No. 17‐2244
Saacks, 131 F.3d 540, 543 (5th Cir. 1997); United States v. Shadduck,
112 F.3d 523, 531 (1st Cir. 1997); United States v. Nazifpour,
944 F.2d 472, 474 (9th Cir. 1991). Thus, the district court did
not clearly err in determining there were more than ten victims.

* * *

4 Williams’s reliance on United States v. Sutton is not helpful. Sutton is a
health care fraud case, where we held that a district court erred in imposing
an offense‐level increase based on the number of victims because “it
[was] not immediately apparent how [the] harms translate[d] to the monetary
harm clearly required under § 2B1.1.” 582 F.3d at 785. Here, as discussed
above, the district court reasonably concluded that Williams’s
fraudulent bankruptcy scheme did cause her creditors’ monetary harm.

Outcome: For the foregoing reasons, we AFFIRM the judgment of the
district court.

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