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U.S. v Persfull

Case No. 10-1188 (C.A. 7, Oct. 6, 2011)

The same day that James Persfull discharged his debts in a Chapter 7 bankruptcy, his mother, Eileen Persfull, died, leaving James and his brother, Joseph, equal shares in the estate. James signed a disclaimer of his interest, but never told the trustee about his inheritance. Following a series of transactions between James, Joseph, and various accounts, the United States Attorney’s office launched an investigation, and the brothers were charged with bankruptcy fraud. James was also charged with impeding a bankruptcy trustee in the course of his duties and fraudulently concealing assets. Throughout their trial, neither James nor Joseph disputed the post-bankruptcy financial transactions that led to James’s possession of portions of the inheritance. Instead, they argued that it was brotherly love—not a sinister scheme—that led to the transfers. Following their convictions, James and Joseph appealed. We affirm.


On March 14, 2003, James Persfull filed a Chapter 7 Bankruptcy Petition, Schedules of Assets and Liabilities, and Statement of Financial Affairs. At the initial meeting of creditors on April 21, 2003, the following exchange took place between James, his attorney Donald Sullivan, and the bankruptcy trustee, James Stevens:

Stevens: Are you currently entitled to receive any type of inheritance at all?

Persfull: No, sir.

Stevens: You understand that if you are notified within the next six months that you are entitled to receive an inheritance that your [sic] are required to notify your attorney and the Trustee?

Persfull: Yes, sir.

Sullivan: Now, we would point out that his mother is very ill and he’s explained that to me, and I’ve also explained that if he does get an inheritance or an interest in property that he has to disclose that to my office.

Stevens: Good, good. Alright with that I’ll conclude your meeting. Thank you.

Two days after that meeting Eileen died testate appointing James and Joseph to serve as executors with equal shares in the estate, and Stevens filed a No Asset Report discharging James’s debts. James, who never notified Stevens that he was entitled to an inheritance, signed two documents (1) declining to serve as executor of his mother’s estate; and (2) disclaiming his interest in any type of property that he would receive as a result of his mother’s death. The irrevocable disclaimer stated that it had been delivered to Joseph.



Judge(s): Charles Clevert, Jr.
Jurisdiction: U.S. Court of Appeals, Seventh Circuit
Related Categories: Criminal Justice
Circuit Court Judge(s)
Charles Clevert, Jr.
Michael Kanne

Trial Court Judge(s)
Frederick Kapala

Appellant Lawyer(s) Appellant Law Firm(s)
Ronald Neville Neville Pappas & Mahoney

Appellee Lawyer(s) Appellee Law Firm(s)
Michael Love U.S. Department of Justice



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joseph additionally contends that the record did not contain any disclaimer documents or references to any nos. 10-1188 & 10-2156 25 the fbi. i have dismissed that allegation because argument by failing to provide any rationale or the government has failed to produce any evidence a bruton violation by "twice recounting an out-of- government responded that the statement was ad- sufficiency claim, and james and joseph are light years joseph again submits that counsel was ineffective joseph was charged in count six of the superseding on their respective claim forms, each son received an policy proceeds, $29,307.78. joseph's naperville address next, james argues that the government committed bruton, "not every admission of inadmissible hearsay fendant's fraudulent intent is typically not avail- the one thing that we do think he told the truth about plaintiff-appellee, card for the account. james's statement of financial justice in violation of 18 u.s.c. 1503. joseph was delay, 440 f.2d 566, 568 (7th cir. 1971); see also united claimer. in addition, james failed to disclose the lazer for the seventh circuit end of the government's case in chief, several state- affidavits to change ownership in the stocks, stated instruction. the district court gave the following ownership to james and joseph as joint tenants with states v. o'neill, 116 f.3d 245, 247 (7th cir. 1997) (quoting dress. james and joseph submitted separate claims mother's estate. with the estate, due to him going thru a bankruptcy for the share accounts. except for the use of his naperville may have an interest in two parcels of real estate and was filing of the petition, or in relation to a proceeding $8,231.86 in december from the proceeds of the sale of $55,000 to an e*trade account he owned. and act in a way that the person knows will help stevens: you understand that if you are notified v. wheeler, 540 f.3d 683, 689 (7th cir. 2008). an error is $15,000 of the proceeds to buy a car, and transferred offense may be found guilty of that offense. the u.s.c. 152(1), and in count three with obstruction of to the sufficiency of the evidence results in a plain error of guilt. in contrast, the circumstantial evidence in this failure to make timely notifications of their mother's error under the more demanding abuse of discretion standard, support an aiding and abetting instruction, and/or that against the codefendant." richardson v. marsh, 481 u.s. had $50,000 to pay creditors. edly made by joseph persfull concerning gifts or government's case in chief: tion for the affidavit and signed the same. united states district court for the eastern district of wiscon- my brother `james' to exclude him from any dealings party objects and the grounds of the objection.' " united specifically, in his motion for a new trial, joseph was three checks written by james on his jackson fed- in any type of property that he would receive as a however, that person must knowingly associate was keeping his inheritance from being administered evidence creeps in, usually inadvertently." bruton, 391 discretion regarding sufficiency of the evidence, and bonds approximately 15 months after eileen's death. and the circumstances surrounding james's and joseph's james and joseph applied to cash out other savings further submits that the evidence was insufficient on laws much less that joseph assisted james in his wrong- the government argues that failure to preserve a challenge2 (2003). "after massaro, only the rarest and most equally consistent with a theory of innocence as with a the defendants had no objection to the final instruction sullivan: now, we would point out that his mother sufficient to safeguard any possible infringement of versation james told stevens to check with joseph joint tenants with the right of survivorship. each had a during opening argument. joseph adds that the district made additional claims for eileen's property that were id. in cases such as this, where there was no abuse of f.2d 759, 769 (7th cir. 1985), where we held that a re- ii. analysis the statement contradicted his position that the money fraud. james was also charged with impeding a bank- deposited the proceeds ($79,908.90) in his amcore heritance interests. james represented that he had an ber 2003. while his bankruptcy schedules required that evidence established that joseph knew that james joseph even knew james was violating the bankruptcy argued that joseph's statement was inadmissible. the scheduled at the time of purchase whereas others ineffective in failing to seek a modified instruction. in addition, eileen owned shares of stock in at&t, bell sional assistance and that the challenged act or omis- eileen/joseph t-bills telephonically on may 29, 2003, see united states v. ortega, 44 f.3d 505 (7th cir. 1995). two claim forms later that month--one signed by him cannot be said that the failure to make this request same tcf bank account where the metropolitan and joseph's naperville address. the address associated with were to be split between them equally. in addition, an or concealing such a scheme or artifice or attempting in count one, james and joseph were charged with instructions, `stating distinctly the matter to which the united states court of appeals of acquittal or otherwise cited a rule in support of the is that there were no gifts or loans to his brother joseph's name was on the fourth check's signature line, after discharge of his debt, including the $29,000 claim claim forms bore the signature of the same witness. 1995) (citing united states v. goodstein, 883 f.2d 1362, cisely for the object of litigating or preserving the claim last will and testament." james provided the informa- the same amount of what his inheritance would as joint tenants with the right of survivorship. approxi- states has moved and i have agreed to dis- ruptcy on january 19, 2005, and was reappointed trustee (3) makes a false or fraudulent representation, claim, mination of guilt. the jury could reasonably infer guilt violation of 18 u.s.c. 1001. trial began on september 14, affairs denied controlling any property owned by to keep assets from being equitably distributed among any evidence of making a false statement, it was joseph. signed a disclaimer of his interest, but never told the nos. 10-1188 & 10-2156 23 acquittal. nevertheless, they did move for a new trial, totaling more than $29,000, and all were deposited into such circumstances there was no error, let alone plain be able to limit its consideration to the evidence and the $48,000 in proceeds was deposited into the clevert, district judge. the same day that james report discharging james's debts. james, who never united states of america, closing of that sale, james and joseph provided a signed, telephoned to confirm the address change request and his mother, eileen persfull, died, leaving james and entirely any statements made by the parties con- he has to disclose that to my office. inconsistently, and concealed assets from the estate, was neither facially incriminating nor inconsistent with tion to be considered by the jury, and that counsel was reasonable doubt that they schemed to defraud a bank- used that name when he opened the account at amcore stances occur in almost every trial where inadmissible court gave the following instruction at the end of the actions that led to james's possession of portions of the proceeds from t-bills owned by eileen with james and dant guilty beyond a reasonable doubt after viewing eileen's south massasoit avenue home. during the and was not facially incriminating. james argues that result of his mother's death. the irrevocable disclaimer we affirm. of his mother's estate; and (2) disclaiming his interest in the amcore bank account to pay $22,095.75 on his mortgage supporting it. while the government has not offered joseph's statement was never admitted into evidence custody of property, or, in connection with a case on december 4, 2003, james used the funds in his the jury's determination.3 were eventually dismissed. on march 14, 2003, james persfull filed a chapter 7 in addition, the jury was entitled to assess credibility be, it was just a gift or a loan. but you'll hear the briar cliff address, and joseph provided his naperville mately 11 months after eileen's death, james submitted based on the alleged bruton violation. the district court stantial evidence allowed a reasonable juror to find the stances of this case, the limiting instruction was committed. the year he filed for bankruptcy, even though he was inheritance. instead, they argued that it was brotherly received and used various proceeds for his own benefit south, verizon, and comcast, with james and joseph persfull: yes, sir. james himself claimed and took the money without but james admitted he signed the name joseph persfull in failing to request the following additional language in debt that he had an interest in his mother's estate. he separate lump sum distributions. james provided his for the first time, james mentioned that his mother when asked whether he had brought a mortgage that trade names used during the prior six years be however, even if timely, the district court ruled that is made." united states v. harris, 394 f.3d 543, 558 (7th the proceeds of the metropolitan policies, the phoenix never reported income from any electrical work in 2003, favorable to the government. notably, the line of cases complice later refused to testify. owner or the beneficiary, and she owned bonds with tan's records contained copies of the declaration and into their beneficiary access accounts at jackson bank. effect of the bankruptcy law through any type of effort entitled to receive an inheritance that your they argue that counsel was ineffective in failing to within the next six months that you are v. this appeal, joseph submits that there was insufficient falsely asserted to be pending under such title. during the government's opening argument as means benefits to joseph. that check was deposited at the the district court determined that james waived this from eileen's south massasoit avenue address to debt was directed to roll over the t-bills owned jointly by ted). address for the account, joseph handled the ownership proceeds checks. by circumstantial evidence and by inferences drawn district judge. 125 f.3d 1024, 1034 (7th cir. 1997). here, the circum- probability that, but for counsel's unprofessional errors, james's beneficiary access account was opened at jack- proceedings "[d]ebtors have an absolute duty to report the united states attorney's office launched an investiga- pointing james and joseph to serve as executors with is no risk to delaying until a fully developed record the evidence and all the inferences in the light most when assessing claims of ineffective assistance of [sic] are required to notify your attorney the activity succeed. in other words, it is not enough handwritten document indicating that the proceeds all bank accounts be listed, but only one checking and bankruptcy petition, schedules of assets and liabilities, was real, and it's just brother joseph decided to be joseph changed the address associated with the done prior to the end of 2003. he operated the business as given. appeal, it is a monumental task to mount a successful that on june 2, 2003, a person using the name "jim" owned jointly by eileen and joseph, and redemption nos. 10-1188 & 10-2156 3 interest, made direct claims, and used the money for for the jackson life benefits on october 14, 2003, each the concealment counts, and that the government sel's deficient performance. strickland v. washington, merit. implicit in this decision is that there was suf- ness and whether defendant was prejudiced by coun- check dated december 4, 2003, for work performed on handled all the trading in the account and signed longed to lazer electric. the petition and the schedules denying the motions for a new trial. the circumstantial i've also explained that if he does get an we affirm the judgment of the district court. from the second e*trade account. between march and home, james obtained a mortgage loan on the home and inconsistent with the disclaimer. james admitted he tion, and the brothers were charged with bankruptcy a lien on the home. james informed stevens that he as the supreme court observed in frazier, although it of which elected a lump sum distribution, and both appeals from the united states district court person must knowingly associate with the criminal error unavoidable through limiting instructions; in- ruptcy trustee in the course of his duties and fraudulently that joseph knew james was using a disclaimer to keep stevens: good, good. alright with that i'll conclude because his brother took the inheritance property 22 nos. 10-1188 & 10-2156 was the address on the account. james signed each of as stated in the instruction, aiding and abetting cir. 2005). joseph's claim of attorney error does not court erred by allowing an aiding and abetting instruc- stevens: are you currently entitled to receive any support the conviction based on the instruction given, it improper evidence, we believe that under the circum- schedules or notified the bankruptcy trustee of his in- stevens unsuccessfully attempted to contact joseph by joseph's only objection at trial was based on the fact eileen and james. between november 2003 and janu- is very ill and he's explained that to me, and disregard a coconspirator's statement when introduced sufficient evidence in support of counts one through four. four checks were used to withdraw available funds against one of two joint defendants, it does not seem at attorney helped prepare a handwritten "affidavit of evidence admitted at trial allows a reasonable jury to may be "unreasonable to assume that a jury can the bankruptcy petition, when, on february 24, 2003, a the jury instruction was incomplete and should have it was a loan or had something to do with his inheritance. paid once--possibly twice--for work performed for 12 nos. 10-1188 & 10-2156 james, on the other hand, requested a meeting and asked who, having devised or intending to devise a scheme instruction to which there was no objection. united states to cover all the possible methods by which a debtor or devising a scheme to defraud the trustee by concealing of his jointly owned shares identically by transferring court will find prejudice where there is "a reasonable would suffice. in addition to the opening instructions persfull family by their first names. over a year and a half later, stevens learned that james made similar misrepresentations when he submitted jackson life routinely honored disclaimers of benefits, annuity policy but no disclaimer was provided. mean- is no basis for reversing the district court's decision. v. useni, 516 f.3d 634, 650 (7th cir. 2008). 731, 735 (1969), the supreme court held that a bruton ments were made during the government's opening. heirship" falsely stating that eileen died "leaving no 16 nos. 10-1188 & 10-2156 appeal. neither defendant filed a motion for judgment ment presented insufficient evidence to prove beyond a 2000, used james's briar cliff address and had a balance and used the money as his own irrespective of the dis- 466 u.s. 668, 687 (1984). counsel's performance is pre- referred to in opening statement. as i told you then, united states v. allen, 390 f.3d 944, 951 (7th cir. 2004). the the jury is instructed to consider that confession only company. using the same naperville, illinois, address missed, including references to any statements alleg- joseph that he had filed a lien again eileen's 5215 outside of his regular working hours, but no income was with the bankruptcy law and factor that into a deter- mother's death. separate packages of claim forms for nos. 10-1188 & 10-2156 persfull discharged his debts in a chapter 7 bankruptcy, direct or circumstantial evidence that the defendant to assess james's credibility on these failures to comply claims as the beneficiaries of eileen's two whole-life generous to his brother james and give him some insurance policies issued by metropolitan life insurance an interest in the estate and the application sought by james and joseph) were deposited into the same u.s.c. 1001. although that count was dismissed at the bank account on march 18, 2005. he used approximately similarly, the evidence was more than sufficient on stand, the exhibits admitted into evidence, and any court must proceed in a trial record not developed pre- account--a tcf bank account owned jointly by eileen and joseph prior to eileen's death. although metropoli- and the other signed by james. with those forms, joseph denied the motion on the ground that the statement november 19, 2003. the second was a check dated this claim below, it is waived on appeal, and his argu- to her death. the funds in the tcf deposit account for the northern district of illinois, western division. before kanne and evans , circuit judges, and clevert, codefendant's confession naming him as a participant occurred when someone directed the rollover. on seven was a gift, but the statement alone did not implicate how much money he needed to pay the creditors in full. directly. some was transferred by joseph, but is woefully inadequate" to establish an element of the the individual fixed annuity death benefit policy were james knew he was required to disclose an inheritance two days after that meeting eileen died testate ap- because the brothers knew of the disclaimer, used it activity, participate in the activity, and try to make of 18 u.s.c. 157(3). james was charged in counts two, savings bonds remained unchanged at the time of trial. naperville address. bureau of public debt records reveal [y]ou might ask yourselves in listening to the his own benefit, while joseph used the disclaimer on a seventh circuit criminal pattern jury instruction: nos. 10-1188 & 10-2156 21 2003, to james and joseph at the naperville address to disregard the statement. although bruton made clear with the criminal activity, participate in the activity, south massasoit avenue home. joseph did not respond. inheritance out of the bankruptcy estate, and that the eral beneficiary account. further, on february 13, 2004, of creditors on april 21, 2003, the following exchange missible against joseph as evidence of his participation after being told he must disclose an inheritance nos. 10-1188 & 10-2156 5 violated bruton v. united states, 391 u.s. 123 (1968), by that were not disclosed in james's bankruptcy schedules. formance fell below an objective standard of reasonable- garding the inconsistent use of the disclaimer and assets his inheritance out of the bankruptcy estate while joseph persfull with making a false statement to january 4, 2004, for $1,365 for work that may have been included additional language. for the first time on testimony that joseph told the fbi in the investiga- referencing joseph's statement from an fbi interview his brother, joseph, equal shares in the estate. james1 disclosed on his statement of financial affairs. that proof of knowledge is typically accomplished through circumstances and in the face of substantial evidence tion, there was no plain error. evidence to support giving the instruction to the jury. letter stated in part: "[e]nclosed with these forms is a 500, 509 (7th cir. 2002). we reverse a conviction on the basis of an improper jury during an october 2006 interview in violation of 18 benefit, and three of the checks bore his signature. he two loans from joseph--one for approximately $28,000 viewing court will not disturb a defendant's convic- phone. by letter dated april 20, 2005, stevens informed electric account, the existence of the e*trade account of that property. even if it did happen to be about under the confrontation clause when his nontestifying death. james learned of his mother's death two days ary 2004, the five t-bills were redeemed automatically but the records relating to eileen's annuity policy did not income from electrical work he performed. his 2004 and loan payment to reduce the balance from $148,406.54 policy, proceeds from an american funds account the bankruptcy estate." united states v. van allen, 524 ruling that impacts a defendant's sixth amendment more probable than any theory of guilt. alternatively, certainly no plain error, defendants cannot satisfy the or artifice to defraud and for the purpose of executing conceals from a custodian, trustee, marshal, or other government responds by citing united states v. keck, 773 14 nos. 10-1188 & 10-2156 forms is a `disclaimer of inheritance' form which was participate in the decision of this case, which is being lish guilt beyond a reasonable doubt." united states v. nos. 10-1188 & 10-2156 9 brought on direct appeal, appellate counsel and the four, and five with bankruptcy fraud in violation of 18 the concealment charges. the evidence established that attorney indicated the disclaimer would fulfill that goal. 24 nos. 10-1188 & 10-2156 actions between james, joseph, and various accounts, nos. 10-1188 & 10-2156 19 nos. 08 cr 50025-1 and 08 cr 50025-2--frederick j. kapala, judge. in the crime is introduced at their joint trial, even if joseph as well. the registered ownership of those to preserve an objection to a proposed jury instruc- james and joseph were charged in a six-count super- knowing that stevens wanted to sell the briar cliff a person who knowingly aids the commission of an for the sake of clarity, we will refer to the members of the1 from which he wrote checks, his business's trade name, listed, none were. further, the schedules required that court proceedings." united states v. fernandez, 282 f.3d disclosure of income received during the two years prior constitutes plain error. because there was no abuse of discre- $5,000 deposit was made. james admitted that he miss count 6, which charged only defendant james's inheritance interests through the creation and nos. 10-1188 & 10-2156 15 joseph alternatively argues that the evidence was so3 find that the brothers engaged in a fraudulent scheme. his e*trade account back to his amcore account and times. some occurred because specific rollovers were 4 nos. 10-1188 & 10-2156 resulted in prejudice. nothing in the record provides e*trade account was opened on april 10, 2002, using ownership with joseph. under oath in those documents, still open when the petition was filed. no activity and previous income. as a general rule, in bankruptcy motion, the district court's decision not to grant a new james had filed federal income tax returns that reported respond to inquiries by the bankruptcy trustee after cerning the false statement count which is now dis- and to support a conviction. see united states v. webster, heritance, life insurance benefits, annuity interests, joint joseph's check and james's check (which was endorsed by november 2005, james had transferred money from rights were not compromised. as the court said in making claim to and using the funds as his own. under benefits in accordance with the disclaimer. pose." massaro v. united states, 538 u.s. 500, 504-05 amended his bankruptcy schedules to disclose any in- james and joseph were identified as the people having that a crime is being committed or is about to be creditors. united states v. ellis, 50 f.3d 419, 422 (7th cir. provided copies of the disclaimer and declination. the bank in march 2002. the account, with an approxi- stock interests he jointly owned with his mother, yet he in addition, there was evidence of intent to use the james and joseph maintain that regardless of the 200, 201-02 (1987). however, in frazier v. cupp, 394 u.s. under bruton, "[a] defendant is deprived of his rights counsel was ineffective in failing to seek a modified and thus often incomplete or inadequate for this pur- joseph's name to an application for checks and an atm asserted that the government failed to produce direct fraud. the district court denied this motion as untimely. 18 u.s.c. 157(3). "[b]ecause direct evidence of a de- of public debt of his mother's death, and failed to disclaimer, metropolitan did not distribute the policy attorney, in joseph's presence, whether he could keep his being threatened with legal action. while james and in addition, on may 5, 2003 joseph notified phoenix "plain" if it was "(1) clear and uncontroverted at the came from various sources, but the most significant were the parties' predictions in their opening statements joseph r. persfull and james persfull, that he was the surviving joint tenant, and signed an signed two documents (1) declining to serve as executor and statement of financial affairs. at the initial meeting officer of the court charged with the control or 18 nos. 10-1188 & 10-2156 f.3d 814, 822 (7th cir. 2008). hence, the jury is entitled about the source of the money because he wasn't sure if document, signed under penalty of perjury, required joseph focus on the absence of direct evidence, circum- it succeed. offense. delay, 440 f.2d at 568. in delay, there was no that in certain circumstances a limiting instruction stated that it had been delivered to joseph. a person who--(1) knowingly and fraudulently right to confrontation is reviewed de novo. united states before meeting with james and his attorney on february 1. current or paid it off, james admitted that he received or other evidence can be considered to be reversible under title 11 . . . shall be fined under this title, im- as to the remaining counts, concealment of assets, fective in failing to move for judgment of acquittal. joseph and james rely upon a line of cases holding that, circuit judge evans died on august 10, 2011, and did not believe the assets are worthless or are unavailable to fed. r. crim. p. 30). because joseph did not preserve 10 nos. 10-1188 & 10-2156 jackson life mailed separate letters dated october 30, several e*trade accounts were not disclosed by james disclaimer of inheritance. ruptcy . . . ." james also testified that he asked an cited by james and joseph applies when "the evidence persfull: no, sir. sent to james and joseph at the same naperville ad- as follows: ruptcy trustee. both maintain that their innocence was indictment with making false statements to fbi agents bank account jointly owned by joseph and eileen prior from examining the scheme itself. . . ." united states that the statement could only be considered against amcore received a tcf bank official check in the a basis for second guessing counsel's decision. james never complied with this request or otherwise defendants-appellants. all remarkable to assume that the jury will ordinarily counsel did not object during the opening. loan and stop foreclosure proceedings on his briar cliff one of james's accounts at amcore bank. the criminal activity if that person has no knowledge able, specific intent to defraud may be established stantial evidence is sufficient to prove fraudulent intent by the bankruptcy trustee. the disclaimer states that a means the error affected the outcome of the district were signed under penalty of perjury. because there was sufficient evidence in the record to 10-6-11 property interests from his mother. however, joseph be and are not evidence. i further instructed you to 2005 returns reflected this type of income as well. james iii. conclusion phoenix policy proceeds had been deposited. specifically, james refers to the following: sidered by you in any way. james stated he was a "survivor in joint tenancy" as a james's innocence and that a limiting instruction the three checks that were written on the account, nos. 10-1188 & 10-2156 17 was not authorized to sign checks on the account. rely on the evidence you hear from the witness his amcore account on september 29, 2004. the shares he had jointly owned with eileen to joint 20 nos. 10-1188 & 10-2156 `disclaimer of inheritance' form which was signed by statement summarized inculpatory testimony he ex- joseph now faces an uphill battle because it is rare that and, to the extent they made the argument in their seding indictment on december 16, 2008. both were authority in support.2 another person. trial is reviewed for abuse of discretion. united states nos. 10-1188 & 10-2156 7 him in a crime. as such, james's sixth amendment ments are not evidence and should not be con- time of appeal and (2) affected substantial rights, which limited basis, waited over a year to notify the bureau in his schedules. the first account, opened on april 12, took place between james, his attorney donald sullivan, james informed stevens that the briar cliff home was move for judgment of acquittal on this ground. james i. background eileen owned savings bonds with james as the joint v. scott, 145 f.3d 878, 887-88 (7th cir. 1998). abetting instruction. error, in the district court giving the aiding and the standard of review is dictated by the manner in cannot cure the harm caused by the admission of home. the source of the funds in the amcore account address. james's distribution check was deposited to concealing assets. throughout their trial, neither james to do so-- had died, but he denied knowing anything about his sion might have been considered sound trial strategy. signed by my brother `james' to exclude him from any prisoned not more than 5 years, or both. son bank on october 29, 2003, with the deposit of the cautioning that statements were not evidence, the your meeting. thank you. we need not conduct a plain error review. that a person happens to act in a way that advances 6 nos. 10-1188 & 10-2156 confirming that the benefits had been deposited to the march 2003 chapter 7 bankruptcy filing. joseph's name and naperville address. the account was requires knowledge of the crime being aided and abetted. dealings with the estate, due to him going thru a bank- might have been. i now instruct you to disregard court statement allegedly made by joseph persfull that he was charged as a principal rather than an aider theory of guilt, that evidence necessarily fails to estab- or promise concerning or in relation to a pro- essential elements beyond a reasonable doubt. review of the issue. because we conclude that there was no thirteen-week term and was rolled over one or more any other person may attempt to defeat the intent and august of 2004, james wrote the checks for his personal disclaimer, stevens requested that james quit claim his circumstantial evidence and that the argument lacked obtain 100% of the benefits from phoenix and, therefore, doing." however, the government introduced evidence interest in the briar cliff residence to stevens as trustee. at the beginning of the second day of trial, james qualify "for this aggressive treatment." see id. ficient circumstantial evidence to sustain the conviction. affidavit of heirship indicating that his mother had evidence that he knowingly participated in bankruptcy moreover, james represented to the bureau of public 18 u.s.c. 152(1). this statute is a congressional attempt of establishing james persfull's guilt." a trial court's disclaimer. pected the defendant's accomplice to give, and the ac- patently egregious of ineffective assistance claims are tion for appellate review, "a party must object to the away from meeting that burden. we will not disturb prejudice prong of strickland, 466 u.s. at 687. joseph. later that day, james moved for a mistrial on the annuity policy. joseph also made a claim on the ruling on their motions for a new trial, counsel was inef- same time and to the same account as the metropolitan ment is reviewed for plain error. worth something less than $175,000 and that there was request for the proceeds and issued a check for the full equal shares in the estate, and stevens filed a no asset entitled to an inheritance. stevens reopened the bank- charged in count one with bankruptcy fraud in violation type of inheritance at all? their convictions on count one will be affirmed. in 2006, he gave no gifts or loans to his brother james. of one cent at the time of the petition. the second record is more than adequate to support a guilty verdict. joseph argues that the "evidence did not establish that use of a sham disclaimer. a defendant is guilty of bank- charged in count six with making a false statement in i'm going to give you an instruction. the united tion of this case that between the time of his and the bankruptcy trustee, james stevens: interest, but he never amended his bankruptcy right of survivorship. records of the company that the result of the proceeding would have been different." inheritance or an interest in property that counsel the court evaluates whether counsel's per- the honorable charles n. clevert, jr., chief judge of the the aiding and abetting instruction: ceeding under title 11, at any time before or after the on his briar cliff residence. however, later in the con- 2 nos. 10-1188 & 10-2156 knew he could use it to receive other benefits and nos. 10-1188 & 10-2156 11 disclaimer as a ruse. joseph utilized the disclaimer to resolved by a quorum of the panel under 28 u.s.c. 46(d). and the other which allowed him to retire the mortgage nor joseph disputed the post-bankruptcy financial trans- love--not a sinister scheme--that led to the transfers. argued april 12, 2011--decided october 6, 2011 the eileen/james t-bills was also changed to joseph's specifically, james and eileen owned five t-bills as failed to provide the disclaimer in those transactions. sin, sitting by designation. and the trustee? it ever passing through joseph's hands. opening statements by the attorneys are only pre- tion when any rational juror could have found the defen- after obtaining copies of the will, declination, and the for example, james and joseph submitted separate james did not list lazer electric on his tax returns, but meanwhile, on october 2, 2003, joseph telephoned on this record, there was no abuse of discretion in phoenix mutual insurance stating "enclosed with these evidence whether or not, well, maybe the disclaimer paid stevens $50,000. stevens received an additional ultimately, "when an ineffective-assistance claim is dictions of what the parties expect the evidence to loans to his brother james. as i have said, those state- u.s. at 135. "[w]here the evidence as to an element of a crime is handled the share transfers contained no reference to a no will. occasions after eileen's death, the bureau of public 1369 (7th cir. 1989)). introduced during the trial." id. at 736. under these notified stevens that he was entitled to an inheritance, tenuous that it renders his conviction "shocking" and therefore consistent with the government's theory of the case. on result of eileen's death. the change of ownership that only an account owner could make such a request. presently." phoenix honored the disclaimer and joseph's mother's death and the time that he was interviewed one savings account at amcore bank were. neither be- joseph was convicted on count one. counts three and six interests in stocks, t-bills, or savings bonds. instead, on the check. states v. harris, 942 f.2d 1125, 1129-30 (7th cir. 1991). the jackson national life insurance to notify them of his error did not occur where the prosecutor in his opening while, james made claims on the savings bonds and stipulations between the parties and not on what mate balance of $240, was not closed until decem- third parties. the first payment of $1,275 was made by occurred until less than one month prior to the filing of and abetter. in his motion for a new trial, he argued that amount of $140,000 that was applied to the briar cliff to $8,406.54. the source of the funds was the tcf 2009, and james was convicted on all counts charged. james argued that the government failed to present 8 nos. 10-1188 & 10-2156 change of ownership documents to change ownership of in a scheme, and it would not object to an instruction whatever interests they hold in property, even if they mutual life insurance of eileen's death. he submitted moreover, the jury was given a limiting instruction identical benefit payments check from metropolitan. sumed to fall within a wide range of reasonable profes- requests used james's briar cliff address as the address nos. 10-1188 & 10-2156 13 copy was served on joseph, and joseph wrote a letter to james's constitutional rights. see frazier, 394 u.s. at 735. appropriately brought on direct appeal because there possessed the requisite knowledge to support a finding trustee about his inheritance. following a series of trans- v. howard, 619 f.3d 723, 727 (7th cir. 2010) (citation omit- apart from any statement made in the opening, there false oaths and claims, and bribery, the statute reads following their convictions, james and joseph appealed. additionally, in the years prior to the bankruptcy on appeal, james and joseph argue that the govern- at trial, the government introduced evidence re- which james and joseph preserved their argument for ruptcy fraud where the person:

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