                             In the
United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 01-3014
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

ROBERT L. WILSON,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 00 CR 638—James B. Moran, Judge.
                          ____________
   ARGUED JANUARY 14, 2002—DECIDED OCTOBER 3, 2002
                    ____________


 Before POSNER, RIPPLE, and DIANE P. WOOD, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. A jury found Robert
Wilson guilty of participation in a wire fraud scheme,
and he was sentenced to 23 months’ imprisonment. He
claimed at trial that he should have been allowed to
introduce some exculpatory evidence without opening
the door to the government’s use of evidence of his post-
arrest silence. He is now before this court on a direct
appeal of his conviction. Finding no error in the district
court’s rulings, we affirm.
2                                             No. 01-3014

                            I
  Robert Wilson worked at the relevant time for Designer
Financial, a mortgage company. Between 1997 and 1999,
his annual income never exceeded $36,000, and he did not
report substantial real estate commissions on his tax
returns.
  In August 2000, Wilson had a joint account and an
individual account at Bank One. As of August 1, 2000, the
joint account had a negative balance of $13,330, and the
individual account had a negative balance of $21. Two
days later, Homeside Lending (his mortgagee) began fore-
closure proceedings on Wilson’s home, because Homeside
had not received any payments for about a year. Atlantic
National Trust was in worse shape; it held a second mort-
gage and had not been paid by Wilson since November
1998.
  On August 4, 2000, a mysterious $180,000 was deposited
by wire transfer into Wilson’s personal account, originat-
ing from Citibank in New York. The transfer came from a
“Mr. Bean” account at Charles Schwab. The history of this
transfer is at the basis of the charges against Wilson.
  On July 26, a Schwab employee received a call from a
man who identified himself as John Bean, who asked to
change his daytime phone number. The number was
changed to a cell phone. Records for that cell phone num-
ber show that a call was placed from the same telephone
to Designer Financial—where Wilson worked—on the
same day.
  On August 3, Schwab received a wire transfer author-
ization form requesting a $180,000 transfer from the
account of John and Olga Bean to Wilson’s account. It
purported to be signed by the Beans, but they testified
at trial that they did not sign the form. It also contained
a Schwab authorization stamp, bearing the signature of
a Mr. Earl King. King, who at the time was a Vice Pres-
No. 01-3014                                            3

ident of Schwab, testified at trial that the authorizing
signature was not his.
  After the money reached Wilson’s account, he trans-
ferred the $180,000 from the joint account into the indi-
vidual account. He then transferred $35,000 back into
the joint account. The effect of these transfers was to
make the funds available immediately. On August 5,
Wilson made at least two withdrawals from the individual
account: a check for $16,000 to Homeside Lending and one
to R.J. and Tressy Stowers for $5,500. The Stowerses’
check was a repayment of earnest money on a house
purchase that was never completed. Bank One did not
honor this check, and when the Stowerses called Wilson
to complain, he said they should have cashed it at a cur-
rency exchange office.
   On August 7, Wilson requested Bank One to transfer
$90,000 from his individual account into that of Head
Jerk House at TCF Bank. On the same day, Wilson ob-
tained from his individual account three cashier’s checks
for a total of $23,542. One check was made payable to
Scott Gillespie, and the other two were for an apparently
fictitious William Emlund. A fingerprint on an Emlund
check matched that of Robert Mitchell, a convicted felon,
who testified that he received the check from Tim Mars,
a friend, who offered him $500 to cash the check and
provided him with a phony Emlund identification. When
Mitchell presented the Emlund check and the ID to a
teller, he was asked to put his fingerprint on the check.
While the teller checked it out, Mitchell became nervous
and left the bank, leaving behind both the check and the
fake ID. (The second of the Emlund checks was cashed at
a currency exchange office in September, endorsed in the
name of Robert Wilson.)
  On the same day, an employee of Bank One received
a call from someone identifying himself as Robert Wilson,
4                                             No. 01-3014

who asked for the return of the Emlund check and the ID.
Telephone records showed a call placed to Bank One from
a telephone registered in Wilson’s wife’s name; other rec-
ords showed that the same telephone later called a num-
ber registered to Tim Mars.
  The next day, August 8, a man identifying himself as
Robert Wilson called Bank One, asking what the prob-
lem was with cashing the cashier’s check and why the bank
was holding up a $90,000 wire transfer. A bank represen-
tative asked Wilson to come to the bank the next day to
discuss the issue.
  On August 9, FBI Agent Dale Shelton posed as a Bank
One employee and met with Wilson to discuss the activ-
ity on the account. During the meeting, Wilson stated
that the $180,000 wire transfer represented his and his
partner’s commission on a real estate development proj-
ect in the Bahamas valued at $60 million, and stated that
it originated from the account of a certain Bean. (In De-
cember 1999, Wilson had sent a fax to Ace Capital Corpora-
tion (Ace), asking for a $2 million financial guarantee
bond for the development of property in the Bahamas. Ace
did not issue the guarantee.)
  At the end of this meeting, Agent Shelton arrested Wil-
son and gave him his Miranda warnings. Wilson orally
waived his rights (though he refused to sign a written
waiver) and allowed Agent Shelton to interview him. In
the course of that interview, Wilson answered a number
of questions about the wire transfer. He stated that he
had been working with an associate on a real estate proj-
ect related to the transfer, but when asked, expressly
refused to provide the name of that associate. He was
also questioned about the Emlund checks. He told Agent
Shelton that they were going to be used to purchase
vehicles from Mr. Emlund, whom he had met through a
friend. As to the Gillespie check, he stated that he owed a
No. 01-3014                                                5

friend a debt, and the friend had directed that the pay-
ment be made to a Scott Gillespie. He also stated that the
$180,000 had been wire-transferred by someone named
Bean, who was an investor with a project in the Bahamas.
  Prior to Wilson’s trial, the defense made an oral motion
to preclude the government from introducing evidence
of Wilson’s post-arrest selective silence. The district court
granted the motion in part, ruling that the government
could not use this evidence in its case in chief. At trial,
Agent Shelton testified about Wilson’s statements regard-
ing the Emlund and Gillespie checks. The prosecutor then
asked him: “And what if anything did [Wilson] say about
an associate of his?” Shelton began to reply as follows: “He
stated that an associate of his had—I am not clear on the
question actually,” after which the government with-
drew the question.
  Later in the trial, the defense proposed calling Agent
Shelton to the stand to introduce Wilson’s statement with
respect to the purported associate. The defense argued that
the earlier exchange with Agent Shelton had placed the
issue of the associate in front of the jury and complete-
ness required that the defense fill in the story, but some-
how without the government’s bringing in the selective
silence.
  The trial court held that if Wilson brought up the mat-
ter of the associate, then the government would be al-
lowed at that time to introduce evidence of his refusal to
name the associate during the interview with Agent
Shelton. Given this choice, the defense decided not to
bring in its story. This meant that the jury never heard
part of Wilson’s alibi, but it also never heard the govern-
ment’s evidence of Wilson’s refusal to answer the more
specific questions.
  The defense also sought to introduce the testimony of
an agent from the Securities and Exchange Commission
(SEC) and the introduction of a Consent Order and Com-
6                                             No. 01-3014

plaint relating to a Mr. Alan Gibbons. The idea behind
this was that Gibbons had entered into a Consent Order
with the SEC because he had defrauded investors for a
total of approximately $172,000; he had later submitted
a sworn statement that he had no funds; and on July 12,
2000, Gibbons had opened a Schwab account with a
$41,000 check drawn on a Bahamian corporation. On July
26, an account of Gibbons’s in the name of his corpora-
tion received a fraudulent wire transfer of $160,000 out
of the John Bean account. The SEC witness would have
testified that it would have the right under the terms of
the consent order to seize any funds owed by Gibbons up
to $172,000. This rather peripheral information, Wilson
believed, would have helped his case.


                            II
  Wilson contends that his Fifth Amendment right to
remain silent was violated by the district court’s decision
conditionally to allow the government to introduce evi-
dence of Wilson’s “selective silence,” if Wilson himself
decided to refer to the “associate” he had originally men-
tioned to Agent Shelton. He further argues that the trial
court violated his Sixth Amendment rights by refusing to
allow the SEC witness to testify and by refusing to per-
mit the introduction of the Gibbons documents.
  The propriety of a ruling allowing the introduction of
evidence is reviewed for abuse of discretion if the defen-
dant objected at trial. United States v. Miller, 159 F.3d
1106, 1112 (7th Cir. 1998). Whether the court’s evidentiary
ruling (taking into account the permissible scope of the
court’s discretion) had the effect of infringing the defen-
dant’s constitutional rights is a question of law we con-
sider de novo. United States v. Hernandez, 84 F.3d 931,
933 (7th Cir. 1996).
No. 01-3014                                               7

                             A
  The first question we must consider is whether we
should be looking at the proposed use of Wilson’s silence
at all. Wilson was given a choice by the district court.
This choice, he argues, put him on the horns of a dilemma:
he could either explore the issue of his alleged associate,
at the price of having the jury hear about his invocation
of his right to silence, or he could say nothing about
the associate and keep out the testimony about the selec-
tive silence. At the trial, Wilson resolved the problem
by declining to introduce the part of his post-arrest state-
ment that related to an associate; thus, the government
never introduced the other part of the statement in
which Wilson declined to name the associate. The govern-
ment now argues that having elected not to risk the
admission, Wilson waived the right to challenge the rul-
ing on the issue. It relies on Wilson v. Williams, 182 F.3d
562 (7th Cir. 1999) (en banc) for this proposition. It con-
tends that a “good example of a conditional ruling is a
judge’s statement that, if a litigant testifies, then the
adverse party will be entitled to cross-examine in such-and-
such a way. Until the condition has been satisfied by
the testimony, the ruling has no effect.” Id. at 565.
  In Luce v. United States, 469 U.S. 38, 41 (1984), the
Supreme Court recognized the difficulty a trial court
faces when it is asked to make a ruling in the abstract
about the consequences of a defendant’s testimony. Luce,
on trial in federal court on drug charges, moved to pre-
clude the government from introducing evidence of his
prior conviction to impeach him if he testified. Like Wil-
son, he did not commit to testifying if the motion was
granted, and no adequate proffer was made as to what the
testimony would be if it indeed took place. Id. at 39. Luce
ended up not testifying and was convicted. The trial
court had made a conditional ruling that the evidence
would have been admissible. The Supreme Court agreed
8                                              No. 01-3014

that the ruling could not be reviewed, because it was
speculative whether the government’s impeaching evi-
dence would even have been introduced, and it could not
assume that the conditional ruling was the reason for the
defendant’s decision not to testify. Id. at 41-42. As the
government’s evidence never came in, it was impossible
to determine whether it had negatively and impermis-
sibly affected the jury. In order to preserve the right to
challenge the evidentiary ruling, Luce would have had to
introduce his evidence, object to the government’s evi-
dence (if indeed it was brought in), and then appeal if he
was convicted.
  Other circuits have extended the Luce principle beyond
its original context of FEDERAL RULE OF EVIDENCE 609. See
United States v. DiMatteo, 759 F.2d 831, 832 (11th Cir.
1985) (applying Luce where the defendant’s witness would
be impeached with evidence offered under Rule 608). See
also United States v. Goldman, 41 F.3d 785, 788 (1st Cir.
1994) (“Although Luce involved impeachment by convic-
tion under Rule 609, the reasons given by the Supreme
Court for requiring the defendant to testify apply with full
force to the kind of Rule 403 and 404 objections that are
advanced by Goldman in this case.”); Palmieri v. DeFaria,
88 F.3d 136, 140-41 (2d Cir. 1996) (where the plaintiff
decided to take an adverse judgment rather than chal-
lenge an advance ruling by putting on evidence at trial,
the in limine ruling would not be reviewed on appeal);
United States v. Ortiz, 857 F.2d 900, 905 (2d Cir. 1988)
(where uncharged misconduct is ruled admissible if the
defendant pursues a certain defense, the defendant must
actually pursue that defense at trial in order to preserve
a claim of error on appeal); United States v. Bond, 87 F.3d
695, 701 (5th Cir. 1996) (where the trial court rules in
limine that the defendant would waive his fifth amendment
privilege were he to testify, the defendant must take the
stand and testify in order to challenge that ruling on
appeal).
No. 01-3014                                                9

  Following this line of cases, we agree that it is inapprop-
riate for us to review Wilson’s claim on the merits here.
He exercised his constitutional right to refrain from in-
troducing certain evidence at the trial and cannot now
attack a potential introduction of evidence by the govern-
ment in response to his potential testimony. We therefore
do not address his arguments with respect to the alleged
violation of his Fifth Amendment rights.


                             B
  Wilson also appeals the trial court’s decision to exclude
the testimony of an SEC agent regarding the consent
and stipulation of Alan Gibbons. Defense counsel’s offer of
proof indicates that the agent would have testified that
Gibbons risked having funds up to $172,000 seized if
the money had been found in one of his accounts. Wilson
then would have had to tell the jury that Gibbons had a
reason not to transfer the $180,000 in his own account
for fear of seizure. Accordingly, he had a reason to transfer
the amount into a third party’s account (that is, Wilson’s).
   Under what has come to be known as “reverse 404(b)
evidence,” a defendant can introduce evidence of someone
else’s conduct if it tends to negate the defendant’s guilt.
The trial court is entitled to exclude this kind of evidence
if, upon a balancing of the evidence’s probative value
against considerations such as prejudice, undue waste of
time, and confusion of the issues under Rules 401 and 403
of the Federal Rules of Evidence, it concludes that the
evidence would not be beneficial. United States v. Reed,
259 F.3d 631, 634 (7th Cir. 2001). Such reverse 404(b)
rulings, like other evidentiary rulings, are reviewed with
deference. United States v. Walton, 217 F.3d 443, 450 (7th
Cir. 2000). Because the evidence that Wilson wished to
offer would not have played a major role in disproving
his guilt, there is no basis for disturbing the trial court’s
10                                           No. 01-3014

ruling on this matter. Its exclusion did not violate Wil-
son’s Sixth Amendment right to present a defense.


                           IV
 For these reasons, we AFFIRM Wilson’s conviction.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




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