USA v. Jaime C. Lopez
Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge, dissenting; and David F. Hamilton, Circuit Judge. [6864973-1]  [16-2269]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
JAIME C. LOPEZ,
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:15-cr-00069-TWP-DML-1 — Tanya Walton Pratt, Judge.
ARGUED JUNE 1, 2017 — DECIDED AUGUST 29, 2017
Before BAUER, POSNER, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. A jury convicted Jaime Lopez of
fifteen counts of wire fraud, four counts of money laundering,
and one count of securities fraud in connection with his
participation in a fraudulent investment scheme. Lopez
challenges his conviction based on various evidentiary rulings
that he argues deprived him of a fair trial. We affirm.
In 2009, Lopez, a self-described financial advisor, began
creating financial investment business entities and soliciting
startup capital from family and friends. These entities were
named JCL Interest Plus, JCL Capital Inc., JCL & Company,
and JCL Direct. Between December 2009 and January 2011,
Lopez received approximately $450,000 total from Thomas
Holsworth, Jerry Wilson, Colleen Wilson, and Danny Cole.
Aside from Lopez’s father-in-law, these were the only four
individuals who invested with Lopez.
Lopez directed those four individuals to transfer their
retirement funds from their personal accounts into selfdirected individual retirement accounts administered by a
company called Entrust IRA, later known as Midland IRA.
Lopez told them that he would then move the funds from
the Midland IRAs into one or more of the JCL entities for
further investment. Each of the individuals executed promissory notes, providing for various rates of return at various
maturity dates. Through personal conversations, brochures,
and his company’s website, Lopez told his investors that he
intended to secure their returns through investments in
companies such as Coca-Cola, ExxonMobil, Wells Fargo, Visa,
American Express, and Procter & Gamble. The documents the
investors signed, however, did not specify particular investments that would be made and reserved Lopez’s discretion to
invest where he saw fit.
Each of the investors transferred their funds to Midland
IRA, per Lopez’s instruction, and Lopez then deposited the
funds into various bank accounts that he controlled under the
names of the various JCL entities. None of that money,
however, was ever invested in any of the companies Lopez
listed in his advertising materials. Lopez used $45,000 of
Danny Cole’s money to open an E*Trade stock-trading
account, but eventually lost all of that money. The remainder
of the investors’ capital either remained in the JCL bank
accounts or was placed into an account under the name
413 Solutions, Inc.—Lopez’s wife’s management consulting
business, which she ran out of their family home.
Lopez used a significant portion of these funds to pay for
personal expenses including $70,574 in home mortgage
payments; $41,208 on automobiles; and $45,870 on landscaping
for his home. Some of those payments were made with checks
from the JCL entities’ accounts, while some of them were paid
out of the 413 Solutions, Inc. account. It was Lopez’s theory at
trial that these amounts were business expenses for his wife’s
company and that the funds in the 413 Solutions, Inc. account
were investments made with a return expected at a later date.
The government’s theory was that Lopez was simply using the
investors’ capital to pay for his lifestyle.
Between mid-2011 and early 2012, Lopez unilaterally
changed the terms of each investors’ promissory note. At trial,
each of the investors testified that they were not aware of these
changes, did not give Lopez permission to make them, and did
not sign any documents authorizing them. In each case, Lopez
made the investment term longer and the rate of return lower
than what the investors agreed to in the original notes.
In early 2013, after confronting Lopez about the use of his
investments, Danny Cole complained to the Indiana Secretary
of State Securities Division, and the Internal Revenue Service
eventually began investigating Lopez’s businesses. On
January 13, 2016, the government filed a superseding indictment charging Lopez with fifteen counts of wire fraud, in
violation of 18 U.S.C. § 1343; four counts of money laundering,
in violation of 18 U.S.C. § 1957; and one count of securities
fraud, in violation of 15 U.S.C. §§ 78j(b) and 77ff(a). On
March 14, 2016, a jury found Lopez guilty on all counts. He
Lopez raises four issues on appeal, each of which, he
argues, constitutes grounds for a new trial. First, he argues
that the district court erred in allowing a government witness
to testify that payments Lopez made to his investors were
“lulling payments.” Second, Lopez contends that the government’s references to Bernie Madoff in its closing argument
denied him a fair trial. Third, he argues that the court erred in
denying his request to label his witness, Michael Aldering, an
“expert” in front of the jury. Finally, Lopez contends that the
court improperly prevented him from introducing extrinsic
evidence of a prior inconsistent statement by a government
witness. We address each argument in turn.
A. Use of the Term “Lulling Payments”
The government called IRS Agent Janet DeLancey to testify
as a summary witness regarding the investigative efforts to
trace money through Lopez’s accounts. At various points in
her testimony, over Lopez’s objection, Agent DeLancey used
the term “lulling payments” to refer to money that Lopez
periodically paid back to his investors. According to Agent
DeLancey, Lopez led the investors to believe that these
payments were derived from interest earned on investments he
made with their money when, in fact, he simply used other
investors’ principal funds to make those payments.
Lopez argues that Agent DeLancey’s testimony regarding
“lulling payments” allowed her to draw conclusions and
express opinions about Lopez’s intent that fell outside the
permissible scope of her testimony as a summary witness. We
review a district court’s decision to admit or exclude evidence
for an abuse of discretion. United States v. Causey, 748 F.3d 310,
315–316 (7th Cir. 2014) (citation omitted).
Contrary to Lopez’s contention, Agent DeLancey did not
offer any improper opinions or conclusions with her use of the
term “lulling payments.” She first used the term in response to
a direct-examination question on how Lopez used the funds he
received from investors:
A portion of those funds, a significant portion,
was also used to make payments back to [the
investors’ accounts at] Midland, what I refer to
as those are lulling payments, because the
records show instead of using the funds, investing them in a third party as he represented to
Mr. Cole and Mr. Holsworth and the Wilsons,
those funds actually would go into like the JCL
account. And they would sit there, and then
they would just be used to pay back to Midland
to make the interest payments.
At this point, Lopez objected to the use of the term “lulling
payments” and was overruled. Throughout the remainder of
the direct examination, Agent DeLancey continued to reference
“lulling payments” as she summarized the bank account
exhibits that the government entered into evidence.
At no time, however, did she offer any testimony or
opinion as to why Lopez made those payments. She did not,
and was not asked to, testify as to the intent behind those
payments or the effect they might have had on the investors.
She simply used the term to describe payments that appeared
to be derived from interest on investments, when, in fact, they
were derived from other investors’ capital. This was information that she gathered from her review of the documents she
was called to summarize, and is appropriate testimony for a
summary witness to offer. See United States v. Pree, 408 F.3d
855, 869 (7th Cir. 2005) (“It is well established that the nature
of a summary witness’ testimony requires that he draw
conclusions from the evidence presented at trial.” (citation,
quotation marks, and alteration omitted)).
In addition, Lopez’s argument loses some of its force in
light of the fact that his counsel cross-examined Agent DeLancey on her characterization of the payments as “lulling payments.” He contends that the court denied him a full opportunity to address this issue on cross, but we are not persuaded by
that argument after reviewing the transcript. In his brief, Lopez
states that he sought to establish that the “lulling payments”
to which Agent DeLancey referred were payments he was
required to make by the terms of the investor agreements, but
that the court did not allow him to do so. The following
exchange belies that contention:
Q: Now, in your testimony, you referred to
payments to the lenders as lulling payments; is
Q: But the terms of this agreement actually
require Mr. Lopez to make payments on a
monthly basis to Ms. Wilson of $210; is that
Q: So when you refer to some of these as lulling
payments, you’re actually referring to payments
that Mr. Lopez made to lenders per these written contracts?
A: Right. When I refer to them as lulling payments, I’m referring to the fact that those are just
the investor’s funds that are being used to pay
back—to make the payments that he’s required
to make as interest payments, but—
Q: But they are payments that Mr. Lopez was
required to make to the lender by these contracts?
A: Yes, that JCL Direct is required to make, yes.
Q: So he was adhering to the terms of this contract when he was making those payments to
Lopez contends that subsequent government objections
caused confusion and cut short his ability to make his point to
the jury. But, as the above exchange demonstrates, it is simply
not true that Lopez’s counsel was not permitted to question
Agent DeLancey’s use of the term, nor that she failed to answer
the question of whether Lopez was required to make regular
payments under the terms of the contract.
Agent DeLancey did not offer any improper opinions or
conclusions in association with her use of the term “lulling
payments.” Lopez was given ample opportunity to crossexamine Agent DeLancey, as well as make his arguments to
the jury regarding the use and meaning of that term. Therefore,
the district court did not abuse its discretion in allowing its use.
B. References to Bernie Madoff
Next, Lopez takes issue with references to Bernie Madoff
that the government made during its closing argument. The
first reference came when the government was discussing
the payments Lopez made to Danny Cole. The government
attorney stated: “The fact that through the gift of Jaime Lopez’s
father-in-law that [Cole] got money back doesn’t mean he
wasn’t defrauded. I would suggest to you, you may know the
Bernie Madoff case.” At this point, Lopez’s attorney objected
and was overruled. The government continued, “Lots of
people got money back through Bernie Madoff.”
The second reference came during the discussion of Agent
DeLancey’s testimony regarding lulling payments: “These are
not interest payments. … This is just lulling. It’s, in the fraud
scheme, it’s a way of making sure you don’t get caught. Just
like, again, Bernie Madoff paid people for 15, 20 years or more,
hundreds of thousands of peopleS.” Lopez’s attorney then
objected again and was overruled. The government finished its
argument, referencing Madoff’s victims: “They were getting
lulling payments designed to keep this from being revealed,
and that’s exactly what these payments are.”
Lopez argues that these references served only to inflame
the passions of the jury and that because the comparisons
between Lopez and Madoff were not justified by the evidence,
he was denied a fair trial. The court’s decision to overrule an
objection to comments in a closing argument is reviewed for an
abuse of discretion. United States v. Richards, 719 F.3d 746, 764
(7th Cir. 2013) (citation omitted). “As a general matter, improper comments during closing arguments rarely rise to the
level of reversible error, and considerable discretion is entrusted to the district court to supervise the arguments of
counsel.” United States v. McMath, 559 F.3d 657, 667 (7th Cir.
2009) (citation and quotation marks omitted). We employ a
two-part test, which is “difficult to satisfy,” to determine
whether a prosecutor’s comments rise to the level of reversible
error. United States v. Bell, 624 F.3d 803, 811 (7th Cir. 2010)
(citation omitted). We first determine whether the comments
are improper standing alone, and if they are, we then “consider
the remarks in the context of the record as a whole and assess
whether they denied the defendant his right to a fair trial.” Id.
As an initial matter, we are not convinced that the references to Madoff were improper standing alone. The prosecutor
did not make a direct comparison between Lopez and Madoff;
he did not suggest that the two shared any personal traits or
that the scope of Lopez’s crimes was similar to that of Madoff’s. Instead, as a way to demonstrate to the jury the purpose
of the payments Lopez made to his investors, the prosecutor
made a specific and limited comparison to the lulling payments
Madoff used to disguise his scheme.
We recognize, however, that even a passing reference to a
criminal like Madoff has the potential to inflame the passions
of a jury. So, if we assume that the comments were improper
in isolation, we then consider them in the context of the entire
record and determine whether they denied Lopez a fair trial.
This prong of the analysis requires us to weigh the following
factors: “(1) whether the prosecutor misstated the evidence;
(2) whether the statements implicate a specific right of the
defendant; (3) whether the defense invited the prosecutor’s
remarks; (4) the trial court’s instructions; (5) the weight of
the evidence against the defendant; and (6) the defendant’s
opportunity to rebut.” Richards, 719 F.3d at 766.
Only two of these factors weigh in Lopez’s favor. First,
there is no contention that Lopez invited the Madoff comments. Second, the district court did not provide any instruction directly related to the comments because it ruled that they
were proper in the context of closing argument. When considered against the other factors, however, neither of these is
sufficient to establish that the comments constitute reversible
As to the first factor, by referencing Madoff, the prosecutor
did not misstate the evidence. Through Agent DeLancey, the
government demonstrated that Lopez’s payments to investors
were not interest payments, as he led them to believe. Thus, the
analogy to Madoff’s lulling payments was not an inaccurate
one, based on DeLancey’s testimony. As we noted, the prose-
cutor did not attempt to compare the scope of the two schemes
and limited his reference to the similar use of lulling payments.
The second factor also weighs in favor of the government,
as Lopez concedes that these comments did not implicate one
of his specific trial rights. As to the sixth factor, Lopez clearly
had an opportunity to rebut the government’s argument, as the
Madoff comments came in the first portion of the government’s closing. Lopez submits that he did not rebut the
argument because he did not want to “re-ring the bell” by
mentioning Madoff again, but that is a matter of strategy, not
Finally, and most importantly, the weight of the evidence
against Lopez was overwhelming. See United States v. Hale, 448
F.3d 971, 986 (7th Cir. 2006) (noting that the weight of the
evidence is the “most important” factor). The government’s
evidence showed that Lopez used the vast majority of the
funds his investors gave him for personal expenses, including
home mortgage payments, landscaping bills, and vehicle
purchases. Lopez created new promissory notes, with less
favorable terms than the original notes, without the investors’
consent or knowledge. His advertising materials suggested
that he planned to invest in companies such as Coca-Cola,
ExxonMobil, Wells Fargo, Visa, American Express, and
Procter & Gamble, but there was no evidence of any such
investments. Moreover, as discussed above, Lopez led his
investors to believe he was paying them back with interest on
investments, when in fact he was simply using principal funds
from other investors.
Clearly, there was significant evidence of Lopez’s guilt, and
when considered in combination with the other factors
weighing in the government’s favor, we cannot say that the
prosecutor’s two references to Madoff denied Lopez a fair trial.
Therefore, we conclude that the district court did not abuse its
discretion in overruling Lopez’s objections.
C. Alerding’s Status as Expert Witness
Lopez’s next argument concerns his witness Michael
Alerding, a certified public accountant. Lopez submitted an
expert report from Alerding, which the government sought to
bar. The district court issued a written order holding that
Alerding’s proposed testimony, including his opinion testimony, was admissible. The same order, however, prohibited
the parties from referring to Alerding as an “expert” during
trial. Lopez argues this ruling constitutes reversible error.
We review de novo whether the district court correctly
followed the procedures required by Federal Rule of Evidence
702, “but once we determine those procedures were followed,
we review the decisions to admit or exclude expert testimony
for an abuse of discretion only.” United States v. Glover, 479
F.3d 511, 517 (7th Cir. 2007). We find no error in the court’s
analysis under Rule 702. The court’s pretrial order on this issue
applied the standards for Rule 702 set forth in Kumho Tire Co.
v. Carmichael, 526 U.S. 137 (1999), and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Applying those
standards, the court found that it was not appropriate to refer
to Alerding as an “expert witness.” As a practical matter,
however, the court held that Alerding’s proposed testimony
was admissible, and even stated that Lopez was permitted to
refer to Alerding’s testimony as “opinion testimony.”
Because the court’s order did not bar any of Alerding’s
opinions or proposed testimony, Lopez’s only remaining
argument can be that the court abused its discretion by
prohibiting him from referring to Alerding as an “expert” in
front of the jury. The court reasoned that such a label could
confuse the jury and inappropriately elevate the status of
Alerding’s testimony in the jury’s eyes. It also noted that this
is the standard practice for all cases in that court and is the
typical practice of other judges in that district.
We find no abuse of discretion in the court’s reasoning. This
is not a situation in which the court allowed the government
to use the “expert witness” label, but refused Lopez that
opportunity. There is a danger in every case that upon hearing
the title “expert”—particularly if it comes from the court
itself—a jury may assign inappropriate weight and credibility
to that witness’s testimony in comparison to that of others. To
combat that danger, courts instruct juries, as the court did in
this case, that witnesses who testify based on specialized
knowledge are to be judged the same as any other witness.
Precluding the use of the “expert” title is simply another
safeguard against that danger.
However, even if the court erred in denying use of the
“expert” label, it was harmless, given that the court allowed
Lopez to establish Alerding’s credentials and elicit his opinions
in front of the jury. It is significant that Lopez cannot point to
any evidence or testimony that the court’s ruling prevented
him from eliciting. He contends that the court’s order created
“confusion among the parties as to the scope and limits of
Alerding’s testimony,” which ultimately hindered his ability to
fully elicit Alerding’s opinions. Upon review, however, the
order provides little room for any such confusion.
The court’s order notes that Alerding’s report contained
two opinions: (1) that Lopez operated closely-held businesses
and that the payment of personal expenses through those
businesses is not atypical; and (2) that Lopez operated profitable businesses, in which he deposited investors’ funds. The
order then clearly states that Alerding’s proposed testimony is
admissible and permits the parties to refer to it as opinion
testimony. There is nothing in the order to suggest that
Alerding would be prevented from offering any opinions or
proposed testimony, nor does Lopez contend that the court
prevented him from doing so with any rulings at trial.1 Thus,
Lopez was free to elicit Alerding’s opinions, and any confusion
Lopez experienced cannot be attributed to an error or abuse of
discretion by the court. Thus, there is no reversible error in the
court’s rulings regarding Alerding.
D. Danny Cole’s Prior Inconsistent Statement
Lopez’s final argument is that the district court committed
reversible error when it declined to allow him to introduce
extrinsic evidence of a prior inconsistent statement to impeach
Lopez suggests that Alerding was prevented from offering an opinion on
the future viability and profitability of Lopez’s wife’s business. However,
while the court did not list this specific opinion in its order, the order
explicitly deemed admissible Alerding’s testimony without qualification.
Moreover, there is nothing in the record to suggest that Lopez attempted to
elicit this opinion at trial and was prevented from doing so.
government witness Danny Cole. We review a district court’s
decision to exclude evidence for an abuse of discretion. Causey,
748 F.3d at 315–316.
In 2014, Cole told IRS Agent Jimmy Shivers that the
signature on his initial investment documents was not his own.
Cole did not, however, tell Agent Shivers that he had given
Lopez permission to sign Cole’s name on those documents.
That omission surfaced for the first time during his crossexamination by Lopez’s counsel. During that exchange, Cole
acknowledged that he led Agent Shivers to believe that Lopez
had signed those documents without Cole’s permission, which
was not true.
The next day, Lopez’s counsel sought to perfect Cole’s
impeachment by calling Agent Shivers to testify regarding
Cole’s prior inconsistent statement, i.e. his omission of the fact
that he authorized Lopez to sign his name. The government
objected, arguing that because Cole admitted to the omission
on the witness stand the impeachment had been perfected, and
the extrinsic evidence was therefore inadmissible. The court
agreed, holding that Cole’s admission meant there was no
longer any inconsistency to attack through additional testimony from Agent Shivers.
As Lopez points out, we have held that, even when a
witness admits to making a prior inconsistent statement,
Federal Rule of Evidence 613(b) should be read broadly to
allow a party “to introduce extrinsic evidence to emphasize the
fact that the witness made the prior statement[.]” United States
v. Lashmett, 965 F.2d 179, 182 (7th Cir. 1992); see also United
States v. Wimberly, 60 F.3d 281, 286 (7th Cir. 1995) (“Prior
inconsistent statements are admissible even though the witness
admits making the prior inconsistency.” (citation omitted)).
The district court erred, therefore, in denying Lopez’s request
to call Agent Shivers to highlight the inconsistency.
However, that decision is still subject to harmless error
review and we will “only overturn a conviction on evidentiary
grounds if the error had a substantial influence over the jury.”
Wimberly, 60 F.3d at 286 (citation and quotation marks omitted). The error in this case did not have a substantial influence
on the jury. The inconsistency that Lopez intended to highlight
was put on full display for the jury through repeated questions
during his cross-examination of Cole, as well as during his
closing argument, when he discussed Cole’s inconsistencies at
length. Additionally, the government’s case did not rely on the
statements that Cole made to Agent Shivers, nor was the
inconsistency in those statements central to Lopez’s defense.
See id. at 286–87 (highlighting the government’s reliance on the
witness’s statements and potential impairment to a theory of
defense as considerations in harmless error analysis). The jury
was made aware of the inconsistencies in Cole’s version of
events and was able to weigh his credibility accordingly.
Therefore, we find the district court’s error to be harmless.
For the foregoing reasons, the conviction is AFFIRMED.
POSNER, Circuit Judge, dissenting. The defendant, convicted by
a jury of multiple violations of wire fraud and related financial
offenses, see 15 U.S.C. §§ 78j(b), 78ff(a), and 18 U.S.C. §§ 1343,
1957, was sentenced to 57 months in prison to be followed by
three years of supervised release, and to pay $293,171.84 in restitution. But because the district judge committed serious errors in
the defendant's criminal trial, we should vacate the defendant’s
conviction and order a new trial.
He had started an investment company, called JCL & Company, Inc., in 2008. He claims that his business plan, put into effect at
the beginning of the following year, was to borrow money from
investors (a minimum of $25,000 per investor) and invest the borrowed money in businesses in the hope that the investments
would yield sufficient profits to compensate the investors generously for lending money to his company, as well as yielding profits for himself.
His business plan began to falter in 2011; he failed to make the
investments that he’d promised his investors—instead mostly
putting money in his wife’s consulting firm—and is accused by
the government of having forged signatures on the promissory
notes that he received from the investors, in particular one named
Danny Cole. Cole told one of the government investigators that
his apparent signature on one of the promissory notes was a
fraud, because it omitted his middle initial—and he said he never
omits his middle initial in writing his name. Yet at trial he testified
without contradiction that he’d verbally authorized the defendant
to sign the promissory note in question. It is not forgery to copy a
person’s name spelled as dictated by the person. Cole’s omission of
this crucial detail during the government's investigation suggests
that Cole was at best not a reliable witness and, much worse, may
have intentionally deceived the government into thinking that
Lopez had committed more serious crimes than Lopez had committed. Despite the significance of Cole’s omissions, the judge un-
accountably barred the investigator from testifying about Cole’s
misstatements in order to undermine his credibility further. That
was error by the judge. United States v. Lashmett, 965 F.2d 179, 182
(7th Cir. 1992).
The defense presented an expert witness at trial, Michael
Alerding, whom the judge allowed to testify—but not as an expert
witness. Yet Alerding, the defense pointed out at the trial without
contradiction, is a certified public accountant with 43 years of experience in auditing and accounting and 25 years as a consultant
and expert witness in litigation involving his specialties, which encompass the present case; and he was prepared to testify that the
defendant’s business was basically sound. The judge, however,
has a rule that an expert witness is not to be called an expert in
front of the jury, lest the jurors be awed and think the witness infallible. Our court has not considered this rule as yet, but it has
been accepted by other courts, see United States v. Johnson, 488
F.3d 690, 697 (6th Cir. 2007); United States v. Bartley, 855 F.2d 547,
552 (8th Cir. 1988), and the ABA likewise recommends that trial
courts not endorse witnesses as “experts.” American Bar Association, Civil Trial Practice Standards (August 2007), 29.
But the judge confused her rule about calling Alerding an “expert” in the presence of the jury with the question whether he
could testify as an expert at all under governing Rule 702 of the
Federal Rules of Evidence, which provides that a "witness who is
qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if: (a)
the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts
or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles
and methods to the facts of the case." As a result of this confusion
the judge permitted Alerding to give only lay testimony and pre-
vented him from discussing typical small businesses (which he
wanted to compare to the defendant’s business) on the ground
that by doing so he would be straying into “expert witness” territory. By substituting its muddled admissibility standard for the
Rule 702 framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court again erred.
A government agent named Janet DeLancey testified that
payments made by the defendant to the investors in his business
were “lulling payments,” that is, payments designed to lull the
investors into thinking they were receiving the money to which
they were entitled, when they were not. But they were; the defendant’s firm was contractually obligated to make the payments
to its investors. The district judge had acknowledged before trial
that terming a payment a “lulling payment” was “argumentative
and ha[d] the potential to prejudicially influence the jury” if used
in summary evidence. But inconsistently, at the trial she permitted
DeLancey to repeat her fraud accusation more than a dozen times.
Agent DeLancey, a lay summary witness, should not have been
permitted to offer such opinion testimony. The conclusion regarding intent was the jury’s to make. United States v. Marzano, 537
F.2d 257, 268 (7th Cir. 1976).
The judge’s worst mistake, however, was to allow the government in closing argument to compare the defendant to Bernard
Madoff. It was like comparing Judge Pratt to Pontius Pilate. The
defendant does not challenge the amount of restitution that he
was ordered to pay to those investors whom he had defrauded:
$293,171.84; but the infamous Madoff is estimated to have defrauded his investors of between $12 billion and $20 billion (see
his Wikipedia entry, https://en.wikipedia.org/wiki/Bernard_
Madoff#size_of_loss_to_investors). At $12 billion that is 40,000
times the fraud committed by Lopez; at $20 billion it is more than
68,000 times Lopez’s fraud. There is no comparison; it’s no surprise that Madoff was sentenced to 150 years [i.e., life] in prison,
compared to the 57 months of prison to which our defendant was
sentenced. The only purpose and effect of bringing Madoff into
the picture in this case were to exaggerate the defendant’s crime.
That was disreputable conduct by the Justice Department.
The defendant’s convictions should be vacated and the case
remanded for a new trial.
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