United States of America v. Gregory Walker

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2145
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
G REGORY WALKER ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11‐cr‐00004‐3 — Harry D. Leinenweber, Judge.
____________________
A RGUED J ANUARY 23, 2014 — D ECIDED MARCH 25, 2014
____________________
Before P OSNER and R IPPLE , Circuit Judges, and G ILBERT,
District Judge.
G ILBERT , District Judge. On January 16, 2013, a jury found
Gregory Walker guilty of two counts of wire fraud in viola‐
tion of 18 U.S.C. § 1343. On appeal, Walker makes the fol‐
lowing three arguments: (1) the failure to obtain and turn
 Of the Southern District of Illinois, sitting by designation.

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2 No. 13‐2145
over Walker’s seized items from a previous unrelated state
case constitutes a Brady violation and prevented Walker
from presenting his theory of defense; (2) the district court
erred when it refused to give Walker’s proposed buyer‐seller
instruction to the jury; and (3) the district erred in ordering
restitution. For the following reasons, we affirm the district
court.
In sum, Walker was involved in a mortgage fraud
scheme encompassing at least ten different loans and seven
different properties in the Chicago area. Throughout the
scheme, Walker served as both a fraudulent buyer and sell‐
er. He also used his then‐girlfriend, co‐defendant Tanya
McChristion, as a straw purchaser in some transactions.
With respect to the two wire fraud counts that went to trial,
Walker fraudulently caused Long Beach Mortgage to loan
money on two different occasions with properties located at
9023 South Kingston, Chicago, Illinois (“the Kingston prop‐
erty”) and 277 Allegheny Street, Park Forest, Illinois (“the
Park Forest property”) serving as collateral.
In his role as a fraudulent buyer, Walker first obtained a
fraudulent loan for the Kingston property on May 19, 2005,
when he submitted a loan application through co‐defendant
Carol Simmons, a loan processor. Simmons prepared and
submitted the loan application containing false information
about Walker’s employment, assets, and rental income.
Thereafter, Walker sold the Kingston property to McChris‐
tion on January 31, 2006. This transaction, in Walker’s role as
a fraudulent seller, is the subject of Count Two. To obtain the
January 2006 mortgage on the Kingston property, Simmons
submitted loan applications on behalf of McChristion to
Long Beach Mortgage. The application was replete with false

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No. 13‐2145 3
information regarding McChristion’s assets, employment,
income, and earnest money payments. Walker obtained con‐
trol of a portion of the loan proceeds through a check made
payable to Real Deal Construction, a company owned by
Walker.
The loan for the Park Forest property, the subject of
Count Three, was obtained through Walker’s use of
McChristion as a straw buyer. This loan was obtained in a
similar manner as the Kingston property loan, wherein
Simmons prepared and submitted fraudulent loan docu‐
ments in McChristion’s name. In addition to listing McChris‐
tion’s fraudulent income information, the loan application
stated the sale price was $137,000; however, at trial the seller
testified the negotiated sale price was $86,000. Eventually,
the loans went into default and the properties were fore‐
closed on. In sum, Walker’s conduct relating to the ten
fraudulent transactions caused an estimated $956,300 in loss
to Long Beach Mortgage.
Walker’s trial counsel entered his appearance in the in‐
stant case just a few weeks prior to trial. Counsel filed a mo‐
tion to continue citing his need to conduct an investigation
of the evidence to determine whether Walker had a Sil‐
verthorne claim.1 Specifically, counsel was concerned that il‐
legally seized material from an unrelated state case, in the
possession of the South Holland Police Department, may
1 In Silverthorne, the Supreme Court explained that “a grand jury must be
denied access to plainly relevant but illegally seized papers.” United
States v. Calandra, 414 U.S. 338, 361 (1974) (citing Silverthorne Lumber Co.
v. United States, 251 U.S. 385 (1920)).

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4 No. 13‐2145
have been used to form the basis of the instant federal case.
That evidence stems from Walker’s 2006 arrest by Secret
Service and others for possession of a gun. During that ar‐
rest, law enforcement seized property from Walker’s home,
including third parties’ state identification cards, social secu‐
rity numbers, and credit histories; electronic storage devices;
and documents and ledgers. The state court held that the
search was in violation of Walker’s Fourth Amendment
rights and suppressed the evidence in his state case.
Throughout the district court proceedings, the govern‐
ment maintained that its evidence for the instant case came
from lenders, title companies, financial institutions and eye‐
witness testimony, not from the 2006 state search. It further
maintained that the only investigating agency was Housing
and Urban Development, not the Secret Service.
During an October 17, 2012, hearing on Walker’s motion
for return of a subpoena directed at the South Holland Police
Department, the district court clarified the information
sought by Walker. Specifically, defense counsel said, “All
I’m asking for is disclosure from the police as to what they
did with this stuff,” and “I want to know what they did with
the stuff. That’s all, what the police did with the stuff.” De‐
fense counsel further explained that he was no longer seek‐
ing production of the seized property because “it would be a
little unwise for a criminal attorney to ask for evidence of
crimes that he wasn’t charged with.” Defense counsel then
clarified that his request was in the alternative, and he was
alternatively requesting, pursuant to Brady, “a disclosure as
to what the Federal Government or the state authorities” did
with the seized property.

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No. 13‐2145 5
The district court directed the government to inquire as
to the status and location of the seized 2006 property. As
such, the government filed a status report on October 24,
2012, detailing its contact with the South Holland Police De‐
partment. Specifically, the government found that the seized
property was still in the South Holland Police Department’s
possession and no one had made a claim to the seized prop‐
erty since the 2006 seizure. The government further in‐
formed the district court that the South Holland Police De‐
partment affirmed it had no connection with or knowledge
of the instant federal case. Thereafter, Walker did not at‐
tempt to obtain the evidence in the custody of the South Hol‐
land Police Department and proceeded to trial.
At the jury instruction conference, Walker proposed the
following buyer‐seller instruction:
The existence of a simpler buyer‐seller rela‐
tionship between a defendant and another per‐
son, without more, is not sufficient to establish
a criminal enterprise, even where the buyer in‐
tends to resell the property. The fact that a de‐
fendant may have bought property from an‐
other person is not sufficient without more to
establish that the defendant was a member of
the charged criminal enterprise.
In considering whether a criminal enter‐
prise or a simple buyer‐seller relationship ex‐
isted, you should consider all of the evidence,
including the following factors:
(1) Whether the transactions involved large
quantities of property or properties;

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6 No. 13‐2145
(2) Whether the parties had a standardized
way of doing business over time;
(3) Whether the sales were on credit or on con‐
signment;
(4) Whether the parties had a continuing rela‐
tionship;
(5) Whether the seller had a financial stake in a
resale by the buyer;
(6) Whether the parties had an understanding
that the property or properties would be re‐
sold.
No single factor necessarily indicates by itself
that a defendant was or was not engaged in a
simple buyer‐seller relationship.
The district court rejected Walker’s proposed buyer‐seller
instruction.
Ultimately, the jury found Walker guilty on both Counts
Two and Three of the indictment. Walker filed a motion for a
new trial or judgment N.O.V. arguing there was insufficient
evidence and that the court’s refusal to give his buyer‐seller
instruction was reversible error. The district court denied the
motion.
Based on an offense level of twenty‐three and a criminal
history category of four, Walker’s sentencing guidelines
range was seventy to eight‐seven months’ imprisonment.
The district court imposed a below‐guideline sentence of six‐
ty months on each count to run concurrently. The Court fur‐
ther imposed a three‐year term of supervised release and a
$200 special assessment.

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No. 13‐2145 7
The presentence report (“PSR”) recommended the Court
impose restitution in the amount of $956,300 to compensate
Long Beach mortgage for its losses. The Government’s Ver‐
sion of the Offense put forth the methodology by which the
government calculated the loss amount. The loss amounts
for the various properties were obtained by subtracting the
sale price the victim‐lender received after recovering posses‐
sion of the property from the amount of the fraudulent loan.
Walker objected to the PSR’s restitution amount only to the
extent that he stated it was unfair to impose restitution in an
amount representing losses caused by others in the scheme
and that the evidence showed that Walker had made pay‐
ments on the mortgages for properties he purchased. Walker
did not, however, object to or present evidence contrary to
the loss calculations contained in the PSR. The district court
adopted the PSR’s actual loss calculation of $956,300 and or‐
dered restitution joint and several with Walker’s co‐
defendants.
We will now consider each of Walker’s arguments in
turn.
1. Brady Violation
First, Walker argues a Brady violation stemming from the
government’s failure to provide him with the South Holland
Police Department evidence. He further argues this alleged
Brady violation prevented him from presenting his theory of
defense because the evidence in question contained evidence
relevant to his defense. We review a district court’s denial of
a motion for a new trial based on a Brady violation for abuse
of discretion. United States v. Wilson, 237 F.3d 827, 831–32
(7th Cir. 2001). Where a defendant fails to preserve a Brady
violation claim before the district court, we review for plain

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8 No. 13‐2145
error. United States v. Mota, 685 F.3d 644, 648 (7th Cir. 2012).
“That means that ‘the alleged Brady violation must be an ob‐
vious error that affected [the defendant’s] substantial rights
and created a substantial risk of convicting an innocent per‐
son.” Id. (quoting United States v. Daniel, 576 F.3d 772, 774
(7th Cir. 2009)) (internal quotations omitted).
Here, Walker made it clear to the district court that he
simply wanted to know “what the police did with the stuff”
and the government satisfied that request when it found that
the evidence was still at the South Holland Police Depart‐
ment. After receipt of that information, Walker no longer
pursued the evidence at issue. Accordingly, it is appropriate
to review Walker’s Brady claim for plain error. However,
Walker’s claim fails under either plain‐error or abuse‐of‐
discretion review.
Brady explained that failure to disclose favorable evi‐
dence upon a defendant’s request “violates due process
where the evidence is material either to guilt or to punish‐
ment, irrespective of the good faith or bad faith of the prose‐
cution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). To succeed
on a Brady claim, Walker bears the burden of proving that
the evidence is “(1) favorable, (2) suppressed, and (3) mate‐
rial to the defense.” United States v. Wilson, 237 F.3d 827, 832
(7th Cir. 2001). The government’s duty to disclose favorable
evidence extends beyond evidence in its immediate posses‐
sion to evidence in the possession of other actors assisting
the government in its investigation. Fields v. Wharrie, 672
F.3d 505, 513 (7th Cir. 2012). However, even if the govern‐
ment failed to disclose material evidence, the evidence is not
“suppressed” if the defendant knew of the evidence and
could have obtained it through the exercise of reasonable

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No. 13‐2145 9
diligence. United States v. Dimas, 3 F.3d 1015, 1018–19 (7th
Cir. 1993).
Walker fails to establish a Brady violation for two rea‐
sons. First, the evidence suppressed in the state case was not
in the control of the government or any actors assisting the
government in its federal investigation. While Walker has
repeatedly contended that the suppressed evidence was in
some way connected to the instant federal prosecution,
Walker has failed to show that the government or any actors
assisting the government in its investigation had any access
to or knowledge of the suppressed evidence. To the contra‐
ry, the government repeatedly denied any knowledge of the
suppressed evidence. The government further explained that
the sole investigating agency involved in the instant investi‐
gation was Housing and Urban Development, and the South
Holland Police Department reported it had no knowledge of
the instant case. As such, Walker fails to establish that the
government suppressed any evidence in violation of Brady.
Second, Walker failed to exercise reasonable diligence in
obtaining the suppressed evidence from the South Holland
Police Department. As was made clear at oral argument,
Walker never even asked the South Department Police De‐
partment to provide him with the evidence. At a minimum,
Walker would have to ask for law enforcement to turn over
his property before he can claim he has made a reasonably
diligent effort to obtain it. Accordingly, the South Holland
Police Department evidence was not suppressed within the
meaning of Brady.
To the extent Walker argues he was denied due process
when the district court failed to issue a subpoena for the
South Holland Police Department evidence, his claim fails.

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10 No. 13‐2145
Walker’s counsel ultimately withdrew his request to obtain
the evidence. Instead, he sought simply to learn the location
of the evidence. This move was indeed a strategic move by
counsel as he acknowledged before the district court “it
would be a little unwise for a criminal attorney to ask for ev‐
idence of crimes that he wasn’t charged with.” As such,
Walker waived any due process claim involving the district
court’s failure to issue a subpoena for the South Holland Po‐
lice Department evidence.
2. Proposed Buyer‐Seller Instruction
Next, Walker argues he was denied an opportunity to
present his theory of defense when the district court refused
to give his proposed buyer‐seller jury instruction. While
Walker did not go to trial on the conspiracy charge, the gov‐
ernment still argued Walker was involved in a scheme to de‐
fraud. Walker contends he was entitled to his proposed buy‐
er‐seller instruction, an instruction given in a conspiracy
context, because the scheme theory relies on conspiracy con‐
cepts. We review a district court’s refusal to give a requested
theory‐of‐defense jury instruction de novo. United States v.
Choiniere, 517 F.3d 967, 970 (7th Cir. 2008).
Defendants are not automatically entitled to any particu‐
lar theory‐of‐defense jury instruction. Id. A defendant is only
entitled to a jury instruction that encompasses his theory of
defense if “(1) the instruction represents an accurate state‐
ment of the law; (2) the instruction reflects a theory that is
supported by the evidence; (3) the instruction reflects a theo‐
ry which is not already part of the charge; and (4) the failure
to include the instruction would deny the [defendant] a fair
trial.” United States v. Swanquist, 161 F.3d 1064, 1075 (7th Cir.
1998).

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No. 13‐2145 11
As indicated in the Committee Comment to the buyer‐
seller instruction contained in the Seventh Circuit Pattern
Jury Instruction, “[t]his instruction should be used only in
cases in which a jury reasonably could find that there was
only a buyer‐seller relationship rather than a conspiracy.”
This makes sense. To prove a conspiracy, the government
must prove more than a buyer‐seller agreement. United
States v. Gee, 226 F.3d 885, 893–94 (7th Cir. 2000). Specifically,
a conspiracy “is an agreement with a particular kind of ob‐
ject—an agreement to commit a crime … . What is required
for conspiracy in such a case is an agreement to commit
some other crime beyond the crime constituted by the
agreement itself.” United States v. Lechuga, 994 F.2d 346, 349
(7th Cir. 1993). Accordingly, a mere buyer‐seller relationship
provides a defense to a conspiracy charge because it negates
an essential element, the agreement to commit a crime, of a
conspiracy. See United States v. Turner, 93 F.3d 276, 285 (7th
Cir. 1996) (In the context of a drug conspiracy charge, “[t]he
purpose of the ‘mere buyer‐seller instruction’ is to ensure
that the jury understands that an agreement to purchase the
contraband, without any other agreement to achieve another
criminal objective, is not a conspiracy.”)
The buyer‐seller instruction, however, does not provide a
defense to an element contained in a charge for wire fraud.
The government must prove the following elements to con‐
vict a defendant of wire fraud: “(1) the defendant participat‐
ed in a scheme to defraud; (2) the defendant intended to de‐
fraud; and (3) a use of an interstate wire in furtherance of the
fraudulent scheme.” United States v. Turner, 551 F.3d 657, 664
(7th Cir. 2008). Walker argues that the buyer‐seller instruc‐
tion encompasses his defense to the scheme‐to‐defraud ele‐
ment. However, “a scheme to defraud is conduct intended

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12 No. 13‐2145
or reasonably calculated to deceive a person of ordinary
prudence or comprehension.” United States v. Hanson, 41
F.3d 580, 583 (10th Cir. 1994). It does not involve an agree‐
ment with another to commit a crime. Accordingly, the ex‐
istence of a mere buyer‐seller relationship is not a defense to
the scheme‐to‐defraud element of wire fraud. As such, the
failure to include Walker’s buyer‐seller instruction did not
deny Walker a fair trial and it was not error for the district
court to reject that instruction.
3. Restitution
Finally, Walker contends the district court’s restitution
order was erroneous. Specifically, he alleges that the meth‐
odology employed by the district in determining restitution
failed to accurately determine the amount of actual loss or
the identity of the victims. We review the legality of an
award of restitution de novo and the district court’s restitu‐
tion calculation for abuse of discretion. United States v. Rob‐
ers, 698 F.3d 937, 941 (7th Cir. 2012). However, where a de‐
fendant fails to raise specific arguments regarding a restitu‐
tion award in the district court, we employee plain‐error re‐
view. United States v. Berkowitz, 732 F.3d 850, 852 (7th Cir.
2013). Under plain‐error review, we will overturn the district
court’s restitution order only if the district court committed
an error that would deprive a defendant of his substantial
rights. Id. at 852–53.
The Mandatory Victims Restitution Act (“MVRA”) pro‐
vides that a district court “shall order” defendants convicted
of specified offenses to “make restitution to the victim of the
offense.” 18 U.S.C. § 3663A(a)(1). The purpose of the MVRA
is to “ensure that victims recover the full amount of their
losses, but nothing more.” United States v. Newman, 144 F.3d

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No. 13‐2145 13
531, 542 (7th Cir. 1998). Where the crime involves “damage
to or loss or destruction of property of a victim of the of‐
fense” the restitution order must order the defendant to
(A) return the property to the owner of the
property or someone designated by the
owner; or
(B) if return of the property under subpara‐
graph (A) is impossible, impracticable, or
inadequate, pay an amount equal to —
(i) the greater of —
(I) the value of the property on
the date of the damage, loss, or
destruction; or
(II) the value of the property on
the date of sentencing, less
(ii) the value (as of the date the property
is returned) of any part of the property
that is returned.
18 U.S.C. § 3663A(b)(1). Loss in mortgage fraud cases is de‐
termined by “subtract[ing] the sale price the lender received
after it recovered possession of the property from the
amount of its original loan … .” United States v. Green, 648
F.3d 569 (7th Cir. 2011).
The district court may adopt the actual loss amount con‐
tained in the PSR. United States v. Berkowitz, 732 F.3d 850,
853–54 (7th Cir. 2013). When the district court opts to adopt
the PSR’s restitution calculation, the burden then falls on the
defendant to demonstrate the amount is unreliable. Id.
“When a defendant has failed to produce any evidence call‐

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14 No. 13‐2145
ing the report’s accuracy into question a district court may
rely entirely on the PSR.” United States v. Taylor, 72 F.3d 533,
543 (7th Cir. 1995).
Here, Walker failed to object at sentencing to the PSR’s
restitution amount or victim identification. As such, the dis‐
trict court’s restitution order is subject to plain‐error review.
Walker failed to produce any evidence contradicting either
the PSR’s restitution amount or methodology. Rather, it ap‐
pears that the government’s proposed loss amount used the
appropriate calculation by subtracting the sale price after
Long Beach Mortgage recovered the property from the
amount of the loan. As such, the district court did not com‐
mit plain error in relying entirely on the restitution amounts
contained in the PSR to which Walker did not object.
Finally, Walker argues the court improperly failed to in‐
quire into the identity of the victims. Specifically, Walker ar‐
gues that the district court improperly relied on the govern‐
ment’s identification of the victim as Long Beach Mortgage
when property records reflect that at least two of the proper‐
ties were foreclosed on by lenders other than Long Beach
Mortgage. Walker, however, failed to make any objection to
the identification of the victim at trial and fails to provide
any indication that Long Beach Mortgage was not the victim.
Indeed, Walker does not argue that Long Beach Mortgage
did not make the loans to him. Rather, he simply argues that
Long Beach Mortgage did not initiate the foreclosure pro‐
cess.2 As such, the court did not err in adopting the identifi‐
2 It does not surprise us that Long Beach Mortgage did not initiate the
foreclosure process. Long Beach Mortgage and its owner, Washington
Mutual, collapsed prior to the referenced foreclosure proceedings. See

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No. 13‐2145 15
cation of the victim contained in the PSR to which Walker
did not object.
The judgment of the district court is A FFIRMED.
Huffington Post, http://www.huffingtonpost.com/2009/12/21/at‐long‐
beach‐mortgage‐a_n_399295.html (last visited March 13, 2014).

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