United States v. Christian Peterson ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3716
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTIAN PETERSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 12-cr-87-bbc — Barbara B. Crabb, Judge.
____________________
ARGUED SEPTEMBER 28, 2015 — DECIDED MAY 25, 2016
____________________
Before FLAUM, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Before running into legal trouble,
Christian Peterson, an entrepreneur doing business in
Madison, Wisconsin, owned several manufacturing and real-
estate development firms. He misused corporate finances,
frequently making unauthorized intercompany loans and
occasionally using corporate funds to pay off his personal
gambling debts. Eventually all of his business ventures
failed, his companies defaulted, and federal agents launched
2 No. 14-3716
an investigation. Peterson was indicted on thirteen criminal
counts—bank fraud, making false statements to banks,
money laundering, and pension theft—and a jury found him
guilty of eight of those crimes. On Peterson’s motion the
district judge entered judgment of acquittal on two counts
and at sentencing imposed a within-guidelines prison term
of 84 months on the remaining six.
Peterson has appealed, raising many issues for review.
His arguments for judgment of acquittal or a new trial have
no merit; the evidence was easily sufficient to support the
jury’s verdict. We also reject his claims of evidentiary and
instructional error. Peterson next challenges the joinder of
the pension-theft count for trial with the others, but this
claim too is meritless. Regarding the sentence, the judge
correctly calculated the gross receipts Peterson derived from
his fraud; because he was the sole perpetrator, all proceeds
of the fraud were properly attributed to him. But Peterson
repaid in full a $300,000 wire transfer prior to detection of
his fraud, so that sum should not have been included in the
total loss amount. We affirm the convictions but vacate the
sentence and remand for resentencing.
I. Background
Two of Peterson’s businesses are relevant to this case.
The first is Maverick, Inc., which supplied polyurethane
scrap-foam material to carpet-pad manufacturers. Peterson
originally was the sole owner of Maverick, but in 2006 he
acquired a partner, Dr. James Shapiro, who owned a 25%
interest in the company. The other business relevant here is
Peterson Properties of Chicago, LLC, which Peterson created
to develop a parcel of land in Fitchburg, Wisconsin. Peterson
had two partners in this venture: his Maverick partner,
No. 14-3716 3
Shapiro, and James Spahr, each of whom held a one-third
interest in the company. Maverick and Peterson Properties
each maintained lending agreements with different banks;
these loan agreements figured prominently in the charges
the government brought against Peterson.
A. Maverick’s Line of Credit at Marshall & Ilsley Bank
Beginning in 2003, Maverick maintained a line of credit
and a checking account at Marshall & Ilsley Bank (“M&I”).
The credit line and checking account were linked through a
“sweep” arrangement meant to provide flexibility for
Maverick. Under this arrangement the credit line would
automatically compensate for insufficient funds in the
checking account. Conversely when the checking-account
balance rose above a certain level, funds from that account
were automatically applied to Maverick’s credit balance. By
2008 Maverick’s line of credit at M&I had increased from
$1.5 million to $6.25 million.
Although the M&I credit line was limited by its terms to
use for Maverick’s business purposes, Peterson drew on it to
fund his other companies. In March 2006 M&I banker Randy
Paulson asked Peterson to discontinue this practice in light
of the risks that it posed to M&I. Peterson agreed and prom-
ised to pay off any debts that his other companies owed to
Maverick. However, when Peterson met with Paulson in
May 2007 to discuss renewal of Maverick’s credit line, the
debt owed to Maverick by Peterson’s other companies had
increased by almost $2 million. Peterson again promised to
stop using Maverick’s credit line for anything other than
purchasing scrap foam and to pay off all outstanding debts
by the end of the year.
4 No. 14-3716
Peterson also drew on the M&I credit line to support his
gambling habit. On April 5, 2006, Peterson had his office
assistant contact M&I to request a $300,000 wire transfer to
the MGM Grand casino in Las Vegas. When Paulson ques-
tioned why he wanted money wired to a casino, Peterson
forwarded an e-mail from a commercial real-estate broker
listing properties that he and the broker planned to visit the
next day. Peterson sent a follow-up e-mail to Paulson a few
minutes later stating, “This is my itinerary. I would not use
Maverick funds for personal use and I certainly wouldn’t
spend $300k!!!” M&I wired the requested funds to the
casino, and Peterson promptly used the money to pay off
debts he had incurred at the blackjack tables.
All the while Maverick was experiencing a sharp down-
turn in business. It lost one of its main purchasers of scrap
foam, and another of its major clients reduced its orders by
87% between 2006 and 2007. Maverick eventually defaulted
on its credit, went into receivership, and ceased operations.
In February 2009 Peterson terminated the 401(k) plan that
Maverick had maintained for its employees since 2002 and
instructed the plan’s administrator to send him any remain-
ing funds. Peterson subsequently received a check for just
over $29,000, which he used for personal expenses. After
learning that the plan had been terminated, one of the three
participating employees confronted Peterson. Peterson
reimbursed the plan in full.
B. Loan from Greenwoods Bank to Peterson Properties
In late 2007 Peterson Properties, the other Peterson com-
pany relevant here, obtained a loan from Greenwoods State
Bank in Lake Mills, Wisconsin. The company had previously
borrowed approximately $7 million from a different bank to
No. 14-3716 5
purchase and develop a tract of land in Fitchburg. By fall of
2007, the company was looking to refinance its existing loan
and obtain additional funds for development.
To that end Peterson met with bankers at Greenwoods,
giving them a personal financial statement. Greenwoods, in
turn, offered Peterson Properties a $1.1 million loan. On
Peterson’s behalf, Greenwoods president Michael Weber
filled out a loan application identifying the loan’s purpose as
land and site improvements for the Fitchburg property. On
December 5, 2007, Peterson signed a closing statement and
repayment note for the loan, both of which likewise identi-
fied land and site improvements as the loan’s purpose.
All three partners in Peterson Properties personally
guaranteed the Greenwoods loan. Spahr’s guarantee was
conditioned on his company, Landmark Building Systems,
receiving the contract for any improvements that the
Fitchburg tract required. On December 7, 2007, Peterson
Properties entered into a contract with Landmark Building
Systems to this effect. The contract, which Peterson signed
on behalf of Peterson Properties, provided that Landmark
would receive $893,580 to perform all site construction.
Peterson made three draws on the Greenwoods loan. The
first occurred on December 6, 2007, and totaled $871,168.57.
Of this amount Peterson paid $155,000 to Spahr for the
starting costs of site construction. Peterson used the rest of
the first draw to pay debts owed by Peterson Properties,
$300,000 of his personal gambling debts, and a $250,000
developer’s fee to himself. A week later, Peterson made a
second draw of $100,000, which he deposited into Maver-
ick’s checking account at M&I. Another week later, Peterson
made a third draw of $128,931.43 for legal fees associated
6 No. 14-3716
with the Fitchburg tract. This third draw completely ex-
hausted the Greenwoods loan. Like Maverick, Peterson
Properties soon collapsed and defaulted on its loan.
C. Indictment and Trial
After Peterson’s companies defaulted, federal agents be-
gan a criminal investigation, and he was eventually indicted
on 13 counts: engaging in a scheme to defraud banks in
violation of 18 U.S.C. § 1344 (Counts 1–4); making false
statements to a bank in violation of 18 U.S.C. § 1014
(Counts 5–8); money laundering in violation of 18 U.S.C.
§ 1957 (Counts 9–12); and pension theft in violation of
18 U.S.C. § 664 (Count 13). The case was tried to a jury,
which was instructed that a bank’s negligence is not a
defense to fraud. The jury returned a verdict of guilty on 8 of
the 13 counts.
Peterson filed a posttrial motion for judgment of acquit-
tal, see FED. R. CRIM. P. 29(c), arguing that the evidence was
insufficient to support the jury’s verdict. The judge granted
this motion in part, entering judgment of acquittal on one
count of bank fraud and a related money-laundering count.
Peterson then moved for a new trial on the remaining
counts, see FED. R. CRIM. P. 33, and renewed an earlier mo-
tion regarding severance of the pension-theft count. The
judge denied both motions. Peterson thus stood convicted of
6 of the 13 counts: the bank-fraud and false-statement counts
arising from M&I’s $300,000 wire transfer to the MGM
Grand; the bank-fraud, false-statement, and money-
laundering counts arising from the Greenwoods loan to
Peterson Properties; and the pension-theft count in connec-
tion with the Maverick 401(k) plan.
No. 14-3716 7
At sentencing the judge applied two guideline enhance-
ments that are relevant here. First, she found that Peterson
derived $1,116,169 in gross receipts from his fraud: $300,000
from the M&I wire transfer to the MGM Grand and $816,169
from the Greenwoods loan. Based on this same calculation,
the judge found that M&I and Greenwoods suffered losses
in excess of $1 million as a result of Peterson’s fraud. Given a
base offense level of 7, a 16-level increase for total loss
exceeding $1 million, and a 2-level increase for gross receipts
exceeding $1 million, Peterson’s total offense level was 25.
See U.S.S.G. § 2B1.1 (2014). 1 Combined with Peterson’s
criminal-history category of III, this yielded a guidelines
sentencing range of 70 to 87 months. The judge imposed an
84-month prison term on the M&I and Greenwoods fraud
counts and a concurrent term of 60 months on the pension-
theft count. This appeal followed.
II. Discussion
A. Rule 29(c) Motion for Judgment of Acquittal
Peterson first argues that the evidence on the M&I and
Greenwoods fraud counts was insufficient for a reasonable
jury to find guilt beyond a reasonable doubt. De novo
review applies to the denial of a motion for judgment of
acquittal; practically speaking, however, the standard of
review is that for sufficiency of the evidence. United States v.
Johns, 686 F.3d 438, 446 (7th Cir. 2012). We consider the
evidence in the light most favorable to the government and
affirm the conviction if any rational trier of fact could find
the defendant guilty beyond a reasonable doubt. Id.; see also
1All citations to the guidelines in this opinion are to the 2014 version
under which Peterson was sentenced.
8 No. 14-3716
FED. R. CRIM. P. 29(c). Our task is not to “reweigh the evi-
dence or invade the jury’s province of assessing credibility”;
rather, we will “overturn the jury’s verdict only when the
record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable
doubt.” United States v. Pribble, 127 F.3d 583, 590 (7th Cir.
1997) (quotation marks omitted).
Four of the five counts challenged here were brought
under §§ 1014 and 1344(2), both of which require proof of a
false or fraudulent statement.2 United States v. Doherty,
969 F.2d 425, 428 (7th Cir. 1992). Regarding the M&I fraud
counts, Peterson argues that the government failed to prove
that the statements he made to the bank were false. Regard-
ing the Greenwoods fraud counts, he argues that the gov-
ernment failed to prove that he made any statement to the
bank.
1. M&I Fraud Counts
For the M&I fraud counts, the false statement at issue is
Peterson’s e-mailed representation that the $300,000 wire
transfer to the MGM Grand was not for personal expenses.
Peterson does not dispute that he made this statement; he
argues instead that the government failed to prove that it
was false. Peterson’s contention at trial was that the wire
transfer was a distribution to himself in his capacity as a
2 The fifth count charged money laundering under 18 U.S.C. § 1957 in
connection with the false statements that Peterson made to Greenwoods.
Because the money-laundering count is derivative of the false-statement
count, judgment of acquittal on the latter requires judgment of acquittal
on the former. Peterson does not raise an independent challenge to the
evidence on the money-laundering count.
No. 14-3716 9
Maverick shareholder—a legitimate business expenditure
under the terms of the M&I credit line. The jury rejected this
claim, and reasonably so.
The government introduced substantial evidence that
the wire transfer was not a shareholder distribution but
instead was a direct use of Maverick funds to cover Peter-
son’s personal gambling debts. First, Peterson did not identi-
fy the transfer as a distribution when he requested it; to the
contrary, he told the bank that the money would be used to
purchase real estate on behalf of Maverick. Second, Peterson
did not treat the requested funds as a distribution: instead of
depositing the $300,000 into a personal account, he had the
money wired directly from Maverick’s checking account to
the MGM Grand. Finally, in a 2007 e-mail to Paulson, Peter-
son stated that Maverick did not make any shareholder
distributions in 2006.
Peterson points to evidence that he claims supports his
contention that the wire transfer was really a shareholder
distribution, notably later-prepared financial records pur-
portedly showing a $900,000 distribution in April 2006, one
component of which was a $300,000 wire transfer. But the
jury was entitled to disregard these financial records as a
post hoc recharacterization intended to cover his tracks and
rely instead on Peterson’s conduct and statements at the
time of the transfer. At bottom, Peterson’s argument asks us
to reweigh the evidence, which ignores the standard of
review. See United States v. Johnson, 729 F.3d 710, 714 (7th Cir.
2013) (“We will ‘overturn a conviction based on insufficient
evidence only if the record is devoid of evidence from which
a reasonable jury could find guilt beyond a reasonable
doubt.’” (quoting United States v. Hill, 618 F.3d 619, 637 (7th
10 No. 14-3716
Cir. 2010))). A reasonable jury could easily conclude that
Peterson lied when he assured M&I that he would not use
the requested funds for personal expenses. The judge
properly denied his motion for judgment of acquittal on the
M&I fraud counts.
2. Greenwoods Fraud Counts
On the Greenwoods fraud counts, the false statement at
issue is the representation contained in Peterson Properties’
loan application that the purpose of the loan was “land
improvement and site improvement” for the Fitchburg tract.
Peterson doesn’t argue that this statement was true; after all,
he used nearly the entire loan for purposes other than land
and site improvements, including paying off debts owed by
Peterson Properties, debts owed by Maverick, and personal
gambling debts. He argues instead that the government
didn’t prove that he made any of the representations con-
tained in the loan application. We disagree.
It’s true that Peterson didn’t fill out the loan application
himself; that was done by Greenwoods president Michael
Weber. The government’s position at trial was that Weber
did so at Peterson’s direction and based on Peterson’s oral
representations. Weber testified to that effect, telling the jury
that he filled out the application at Peterson’s behest and
based on information Peterson provided. The government
also pointed to the fact that Peterson signed the closing
statement and the note setting forth the terms of repayment
just one day after Weber filled out the loan application,
supporting an inference that Peterson directed Weber to
complete the application and gave him the information to do
so.
No. 14-3716 11
Peterson argues that Weber’s testimony was too unrelia-
ble to support a finding of guilt because Weber admitted
that his memory of this time period was “very sketchy” and
he “couldn’t remember any specific conversation with
Peterson.” Weber also testified that Peterson’s business
partner, Sweeney, could have been the person who provided
the information he used to fill out the loan application.
While these are plausible jury arguments, they don’t carry
the day on appeal. The jury considered these arguments and
instead chose to credit Weber’s testimony that it was Peter-
son who called the shots and provided the information for
the loan application. Peterson’s argument on appeal simply
invites us to “second-guess the jury’s credibility determina-
tions.” See United States v. Green, 648 F.3d 569, 578 (7th Cir.
2011). That we won’t do. See id. (“We [will] overturn a
conviction based on a credibility determination only if the
witnesses’ testimony was incredible as a matter of law … .”).
Finally, Peterson relies on the Fifth Circuit’s decision in
United States v. Jobe, 101 F.3d 1046 (5th Cir. 1996), abrogated on
other grounds by United States v. Ochoa-Gomez, 777 F.3d 278
(5th Cir. 2015), but that reliance is misplaced. In Jobe the Fifth
Circuit concluded that a defendant who guaranteed a loan
and then endorsed and accepted loan proceeds on the
pretense that the funds would be used to purchase commer-
cial inventory had not himself made a false statement for
purposes of § 1014. Id. at 1054, 1064–65. The stated purpose
of the loan in Jobe was set forth in a “loan presentation”
prepared by bank staff, which the defendant never signed.
Critically, however, it was undisputed in Jobe that the de-
fendant “made no direct representations concerning the
loan.” Id. at 1064–65. Here, in contrast, Weber testified that
Peterson provided the information contained in the loan
12 No. 14-3716
application. That testimony is sufficient to support the jury’s
verdict.
B. Rule 33 Motion for a New Trial
Peterson next argues that the jury’s verdict on the M&I
fraud counts was contrary to the manifest weight of the
evidence, requiring a new trial. Rule 33 of the Federal Rules
of Criminal Procedure permits a court to “vacate any judg-
ment and grant a new trial if the interest of justice so re-
quires.” See also United States v. Reed, 875 F.2d 107, 114 (7th
Cir. 1989) (indicating that a new trial is warranted “where
the evidence preponderates so heavily against the defendant
that it would be a manifest injustice to let the guilty verdict
stand”). Because the district judge is best positioned to make
this determination, our review is highly deferential. United
States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998). We review
the judge’s decision for abuse of discretion, recognizing that
“the exercise of power conferred by Rule 33 is reserved for
only the most ‘extreme cases.’” Id. (quoting United States v.
Morales, 902 F.2d 604, 606 (7th Cir. 1990)).
This is not “one of those rare cases in which considera-
tion of the evidence leaves a strong doubt as to the defend-
ant’s guilt of the charged offense.” United States v. Washing-
ton, 184 F.3d 653, 658 (7th Cir. 1999). As we’ve already
explained, the government introduced substantial evidence
from which the jury could conclude that Peterson lied when
he told M&I that he would not use the $300,000 wire transfer
for personal expenses. This evidence was neither incredible
nor inherently unreliable. See id. (holding that the defendant
was entitled to a new trial where the only evidence support-
ing his conviction was testimony that the district court had
No. 14-3716 13
expressly deemed incredible). We find no abuse of discre-
tion.
C. Exclusion of Evidence/Right to Present a Defense
Alternatively, Peterson asks us to order a new trial on the
M&I fraud counts because the judge deprived him of a
meaningful opportunity to present a defense by limiting the
testimony of Maverick’s accountant, Rick Vanden Heuvel.
We review this constitutional claim de novo, “taking into
account the permissible scope of the district court’s discre-
tion in evidentiary matters.” United States v. Laguna, 693 F.3d
727, 730 (7th Cir. 2012) (quotation marks omitted). The
constitutional right to present a defense—guaranteed to all
criminal defendants as a matter of due process, the Sixth
Amendment confrontation right, or both, see Holmes v. South
Carolina, 547 U.S. 319, 324 (2006)—is not absolute; a judge
may exclude evidence that is cumulative or only marginally
relevant, Laguna, 693 F.3d at 730.
The judge allowed Peterson’s counsel to question
Vanden Heuvel about Maverick’s 2006 financial records, and
this examination included specific questions about a
$900,000 shareholder distribution recorded for that year. But
counsel was not permitted to ask Vanden Heuvel about the
breakdown of that distribution—specifically, whether the
$900,000 figure included a $300,000 wire transfer—because
this line of inquiry lacked foundation. Vanden Heuvel
testified that he had never seen Maverick’s general ledger,
which is the only record that would have identified the
individual components of the $900,000 distribution.
Peterson’s counsel presented other evidence on this point,
including the testimony of Monika Buhler (Maverick’s
14 No. 14-3716
bookkeeper who was responsible for maintaining the gen-
eral ledger) and the general ledger itself.
The judge’s limitation on Vanden Heuvel’s testimony
was entirely appropriate; the witness had never seen the
general ledger and had no first-hand knowledge of the
distribution or its subsidiary parts. The limitation did not in
any event deprive Peterson of his right to present a complete
defense, not least because he was allowed to make his point
through another witness.
D. Jury Instruction on Bank Fraud
Over Peterson’s objection the judge gave the following
jury instruction on bank fraud: “A bank’s negligence or lack
of diligence in uncovering the fraud is not a defense to the
crime charged.” Peterson renews his objection on appeal. We
review de novo whether the jury instruction was an accurate
statement of the law; the judge’s decision to give a particular
instruction gets deferential review, for abuse of discretion
only. United States v. McKnight, 665 F.3d 786, 790–91 (7th Cir.
2011). “If the instructions are adequately supported by the
record and are fair and accurate summaries of the law, the
instructions will not be disturbed on appeal.” Id. at 790
(quotation marks omitted).
Peterson does not argue that the instruction inaccurately
stated the law, nor could he. See, e.g., United States v. Berman,
21 F.3d 753, 757 (7th Cir. 1994) (“[C]ontributory negligence is
not a defense to fraud.”). Instead he claims the instruction
was unnecessary because he never raised negligence as a
possible defense to bank fraud. He insists that it was the
prosecutor who put the conduct of the banks at issue by
eliciting testimony from bank employees that they made
No. 14-3716 15
mistakes in approving the various draw requests. To the
extent that his own counsel also explored the circumstances
surrounding the draw requests, Peterson says it was solely
for the purpose of demonstrating that “he sought, and spent,
loan money according to the rules, not that the bank officials
were negligent in failing to discover otherwise.”
This argument rests on a distinction without a difference.
Peterson put the conduct of the banks at issue throughout
the trial, emphasizing the fact that his draw requests were
routinely approved and suggesting that the bank’s approval
showed that his conduct was proper. This implicitly left the
impression that negligence was a possible defense. The
judge was right to give the instruction.
E. Joinder of the Pension-Theft Count
Finally, Peterson challenges joinder of the pension-theft
count for trial with the other counts in the indictment. He
claims that joinder was improper because pension theft is a
distinct statutory offense and in this case involved different
victims and occurred during a different time period than the
other counts. He also argues that even if joinder were prop-
er, the judge should have granted his motion to sever the
pension-theft count because a joint trial risked undue preju-
dice.
Whether joinder was proper is a question of law subject
to de novo review. United States v. Quilling, 261 F.3d 707, 713
(7th Cir. 2001). Rule 8(a) of the Federal Rules of Criminal
Procedure permits joinder of two or more offenses in a
single indictment if the offenses are “of the same or similar
character, or are based on the same act or transaction, or are
connected with or constitute part of a common scheme or
16 No. 14-3716
plan.” Offenses may be “of similar character” even if they
are not connected in time or by evidence. United States v.
Coleman, 22 F.3d 126, 133 (7th Cir. 1994) (“This language in
Rule 8(a) is a rather clear directive to compare the offenses
charged for categorical, not evidentiary similarities.”). Here
the pension-theft count—like each of the other counts
charged in the indictment—involved Peterson’s use of his
business ventures to obtain money by dishonest means. This
categorical similarity is sufficient to support joinder under
Rule 8(a).
When the initial joinder is proper, we review the district
court’s denial of a motion to sever for abuse of discretion.
United States v. Turner, 93 F.3d 276, 283 (7th Cir. 1996).
Rule 14 of the Federal Rules of Criminal Procedure allows a
district judge to order separate trials where joinder of charg-
es would result in prejudice. The defendant “bears a heavy
burden on appeal when arguing that … prejudice warranted
severance.” United States v. Ervin, 540 F.3d 623, 629 (7th Cir.
2008). It is not sufficient that the defendant would have had
a better chance of acquittal in separate trials; rather, the
defendant must demonstrate actual prejudice by showing
that he was unable to obtain a fair trial without severance. Id.
One way in which joinder may result in actual prejudice
is “by creating a ‘spill-over effect’—that is, that the jury
relies on evidence presented on one set of counts when
reaching a conclusion on the other set.” Id. at 628. To show
prejudicial spillover, a defendant “must overcome the dual
presumptions that a jury will capably sort through the
evidence and will follow limiting instructions from the court
to consider each count separately.” Turner, 93 F.3d at 284.
No. 14-3716 17
Peterson cannot overcome either of these presumptions.
The judge properly instructed the jury to separately consider
each charge and the evidence supporting it. We have said
that instructions of this type provide “an adequate safeguard
against the risk of prejudice in the form of jury confusion,
evidentiary spillover and cumulation of evidence.” United
States v. Berardi, 675 F.2d 894, 901 (7th Cir. 1982). We have
also recognized that where, as here, the jury returns a guilty
verdict on only some of the counts charged in the indict-
ment, we can be confident that the jurors were able “to sift
the evidence and to weigh the merits of each count separate-
ly.” Id. at 902. Accordingly, severance of the pension-theft
count under Rule 14 was not necessary to avoid unduly
prejudicial spillover effect.
F. Gross-Receipts and Total-Loss Calculations
Moving now to sentencing arguments, Peterson chal-
lenges the judge’s calculations of the gross receipts and total
loss associated with his fraud for purposes of arriving at his
recommended sentence range under the guidelines. We
review the judge’s application of the guidelines de novo but
defer to her findings of fact unless they are clearly errone-
ous. United States v. Irby, 240 F.3d 597, 599 (7th Cir. 2001).
1. Gross Receipts
Section 2B1.1(b)(16)(A) of the Sentencing Guidelines pro-
vides for a two-level enhancement where “the defendant
derived more than $1,000,000 in gross receipts from one or
more financial institutions as a result of the offense.” To
calculate a defendant’s gross receipts, application note 12
states that “the defendant shall be considered to have de-
rived more than $1,000,000 in gross receipts if the gross
18 No. 14-3716
receipts to the defendant individually, rather than to all partici-
pants, exceeded $1,000,000.” (Emphasis added.)
Based on Peterson’s misappropriation of the $300,000
wire transfer from M&I and $816,169 of the Greenwoods
loan, the judge determined that Peterson’s gross receipts
from the fraud totaled $1,116,169. Peterson accepts that the
money he used to pay off personal gambling debts (the
entire $300,000 wire transfer from M&I and $300,000 of the
Greenwoods loan) was properly attributed to him individu-
ally. He maintains, however, that the funds he used to pay
debts owed by Peterson Properties and Maverick—$516,169
of the Greenwoods loan—should not have been included in
his total gross receipts from the fraud.
This argument is flawed. By its terms application note 12
contemplates a fraud with multiple participants. The policy
underlying this note is that “each dollar count once” when
allocating fraud proceeds between the defendants for sen-
tencing purposes. See United States v. Castellano, 349 F.3d 483,
487 (7th Cir. 2003). Here Peterson is the sole perpetrator of
the fraud, so the application note doesn’t apply.
Peterson relies on Castellano, but the fraud in that case
involved multiple participants. There three codefendants—
two individuals and their closely held corporation—were
charged with wire fraud. The defendants used fraudulently
obtained loans to finance the construction costs necessary to
keep their home-building business afloat. All loan proceeds
went directly to the corporation, and the individual defend-
ant who challenged his sentence received less than $200,000
of the funds as either salary or reimbursement of expenses
from the corporation. The district court attributed all of the
ill-gotten proceeds to the individual defendant solely be-
No. 14-3716 19
cause he was the founder and manager of the corporation. In
vacating that defendant’s sentence, we emphasized that the
district court improperly disregarded corporate formalities
for purposes of calculating gross receipts while recognizing
the corporation as a separately charged entity. Id. at 487.
Here, in contrast, Peterson was the sole participant in the
fraud perpetrated on Greenwoods and maintained complete
control over the distribution of all of the proceeds of his
fraud. That he chose to spend some of the money he fraudu-
lently obtained to pay off debts owed by Maverick and
Peterson Properties is irrelevant for purposes of calculating
his gross receipts. Cf. United States v. Edelkind, 467 F.3d 791,
801 (1st Cir. 2006) (holding that fraud proceeds are attribut-
able to a defendant who controls disbursement of those
proceeds even if he causes legal ownership to be lodged in
another person or entity). The judge correctly determined
that Peterson’s gross receipts totaled more than $1 million
and thus appropriately applied a two-level sentencing
enhancement under § 2B1.1(b)(16)(A).
2. Total Loss
Under U.S.S.G. § 2B1.1(b)(1)(I), a 16-level enhancement
applies to a fraud that results in total loss of more than
$1 million. Application note 3(E)(i) explains that “[t]he
money returned … by the defendant or other persons acting
jointly with the defendant, to the victim before the offense
was detected” should be subtracted from the total loss
amount. See also United States v. Hausmann, 345 F.3d 952, 960
(7th Cir. 2003).
The judge applied the 16-level enhancement based on a
total loss amount of $1,116,169—again, the sum of the
20 No. 14-3716
$300,000 loss from the M&I wire transfer and the $816,169
loss from the Greenwoods loan. Peterson argues that the
$300,000 wire transfer should not have been included be-
cause he repaid that amount in full prior to detection of his
fraud.
The government now concedes that this repayment oc-
curred before Peterson’s fraud was detected. Subtracting
$300,000 from the total loss calculation leaves only $816,169.
A 14-level enhancement applies to this total loss amount. See
U.S.S.G. § 2B1.1(b)(1)(H). Peterson is entitled to resentenc-
ing.
Accordingly, we VACATE the sentence and REMAND for
resentencing. In all other respects the judgment is AFFIRMED.