United States v. Baldwin, Lloyd ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3721
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LLOYD BALDWIN,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 CR 294—Blanche M. Manning, Judge.
____________
ARGUED NOVEMBER 3, 2004—DECIDED JULY 12, 2005
____________
Before FLAUM, Chief Judge, and EASTERBROOK and SYKES,
Circuit Judges.
SYKES, Circuit Judge. Lloyd Baldwin was convicted of
four counts of wire fraud for his involvement in a phony
“prime bank funding program” that successfully separated
Joe Piscopo from $3 million of his money. Baldwin’s first
contention on appeal is that one count of the indictment
was returned one day after the statute of limitations on that
offense had expired. No one noticed this at the time,
although the parties now agree that Count 1 was untimely.
Because the statute of limitations argument was never
2 No. 03-3721
raised in the district court, our review is for plain error.
Baldwin’s sentence on Count 1 is concurrent to the other
counts, so the only additional punishment imposed on the
admittedly untimely count is the $100 special assessment,
which is not serious enough to warrant correction as plain
error. See United States v. McCarter, 406 F.3d 460, 464 (7th
Cir. 2005).
Baldwin also challenges the sufficiency of the evidence to
convict, but he has not carried his heavy burden on this
argument. Finally, Baldwin challenges aspects of his sen-
tence and the district court’s restitution order. The district
court initially sentenced Baldwin to four concurrent 78-
month terms of imprisonment, well below the 20-year
statutory maximum in effect when Baldwin was before the
court. But Baldwin’s frauds occurred in the mid-1990s when
the statutory maximum for wire fraud was only five years.
Realizing its mistake, the court corrected the sentence, but
it did so well beyond the seven-day time period for correct-
ing an erroneous sentence under Federal Rule of Criminal
Procedure 35(a). We therefore vacate Baldwin’s sentence
and remand for resentencing. Not everything needs to be
redone, however. We reject Baldwin’s challenge to the
district court’s imposition of a two-level sentence enhance-
ment under the Sentencing Guidelines for abuse of a
position of trust. We also reject his argument that the
district court’s $3 million restitution order violates the
Ex Post Facto Clause of the Constitution.
I. Background
Joseph Piscopo met Lloyd Baldwin at a trade show in the
early 1970s when both men were working in the computer
software industry. Piscopo later hired Baldwin as a vice
president in the firm he owned; after two years in that
position, Baldwin left on good terms. The two men kept in
touch and in 1993 Baldwin approached Piscopo with an
No. 03-3721 3
investment opportunity that he called a “prime bank
funding program.” The pitch was simple and, it turned out,
completely fraudulent. Baldwin said he would raise $40
million from various individuals and loan the money to
unnamed “large-scale” European banks, which would use it
to fund their cash reserves. Baldwin promised Piscopo that
if he agreed to invest, he would reap a 12% return on a
three-week investment or a 36% return on a nine-week
investment. Baldwin offered his “personal guarantee” of the
investment and assured Piscopo that his principal would
“never be at risk.” Baldwin also told Piscopo that by
channeling the proceeds through various corporate entities
Baldwin set up in the Cayman Islands, profits on the plan
would be tax free. Piscopo fell for it.
Piscopo signed a joint venture agreement with one Floyd
Reeves, an associate of Baldwin, and agreed to invest
$1 million in the “program” for a minimum of three weeks
and a maximum of nine weeks, for an expected maximum
return of 36%. He wired the funds to a bank account in
Spain owned by Reeves. Within days more than $950,000 of
the money was transferred from Reeves’ account to two
accounts in New York, and within a week only 8¢ remained
in the Spanish bank account. Where the money went from
there is unclear.
As the end of the investment period approached, Baldwin
told Piscopo that the “program” had done even better than
expected and that Piscopo stood to earn a 40.4% profit.
Encouraged by the good news, Piscopo agreed to reinvest
his $1,404,000 and invest an additional $2 million in a new
“program” on the same terms. To that end Piscopo signed
another joint venture agreement, this time with Daric
Corporation, one of the Cayman Islands companies set up
and controlled by Baldwin. The terms of the agreement
were the same as before. In addition, Piscopo was promised
that the $2 million principal was guaranteed by a company
called Equity Funding, another entity controlled by
4 No. 03-3721
Baldwin. On October 20, 1993, Piscopo wired $2 million
from a bank account in Chicago to an offshore European
bank account owned by Daric Corporation. Unbeknownst to
Piscopo, the funds were then immediately wired to a bank
account controlled by Baldwin in the Cayman Islands. No
money was ever invested in European bank reserve funds.
Near the end of the second investment period, in January
1994, Piscopo told Baldwin that he did not want to roll over
his earnings again and instructed Baldwin to return the
funds. Over the next 21 months Baldwin prevaricated,
offering Piscopo a slew of excuses why the money, though
perfectly “safe,” could not yet be returned. Near the end of
1995 Piscopo told Baldwin that he was considering legal
action and Baldwin then disappeared. Piscopo never re-
ceived a return of his $3 million investment.
A grand jury was convened to investigate Baldwin’s
activities. The investigation required evidence from Spain,
so the government requested a court order pursuant to 18
U.S.C. § 3292 suspending the five-year statute of limita-
tions prescribed by 18 U.S.C. § 3282. See 18 U.S.C. § 3292(empowering the district courts to suspend statutes of
limitations during the time required for the United States
to gather evidence from foreign countries). On October 29,
1998, Acting Chief Judge Charles Kocoras issued a sealed,
ex parte order suspending the running of the statute of
limitations from September 29, 1997 (the date the govern-
ment formally requested Spain’s assistance), to June 1,
1998 (the date on which Spain took final action on the
government’s request). On April 21, 1999, the grand jury
issued an indictment charging Baldwin with four counts of
wire fraud in violation of 18 U.S.C. § 1343 in connection
with his scheme to defraud Piscopo. The offense charged in
Count 1 occurred on October 20, 1993; Count 2 on April 14,
1994; Count 3 on May 24, 1994; and Count 4 on July 15,
1994. As the government now concedes, and as will be
No. 03-3721 5
discussed more fully below, the indictment was returned
one day after the expiration of the extended statute of
limitations on Count 1.
Baldwin did not raise the statute of limitations argument
in the district court. He waived a jury trial and the case was
tried to the court, United States District Judge Blanche
Manning, presiding. On May 30, 2003, Judge Manning
issued a written decision convicting Baldwin on all four
counts. On October 2, 2003, the case proceeded to sentenc-
ing and the court applied U.S.S.G. § 2F1.1 (1995), applica-
ble to offenses involving fraud or deceit. To a base offense
level of 6 the judge added 13 levels for the amount of loss (it
being more than $2.5 million but less than $5 million). The
judge also added two levels each for Baldwin’s role in the
offense, more than minimal planning, violation of a position
of trust, and providing false testimony at trial, yielding a
total adjusted offense level of 27. In light of Baldwin’s
criminal history category of I, the Guidelines prescribed a
sentencing range of 70 to 87 months. Declining the govern-
ment’s request for an upward departure based on un-
charged relevant conduct, the district court selected a
sentence roughly in the middle of the guidelines range and
imposed four concurrent 78-month terms of imprisonment
followed by a three-year term of supervised release.
Although this sentence was far below the 20-year maxi-
mum set by the version of 18 U.S.C. § 1343 in effect at the
time he was sentenced, Baldwin’s convictions stemmed from
acts that occurred when the statutory maximum was only
five years. See 18 U.S.C. § 1343 (1995); Pub. L. No. 107-204,
§ 903(b) (2002). Baldwin’s sentence was therefore illegal.
The government informed the court of the mistake; on
January 16, 2004, the judge amended the sentence. She
imposed a 60-month term of imprisonment on Count 1 and
three concurrent 18-month terms of imprisonment on the
remaining counts, to run consecutive to the 60 months on
Count 1. In this way the judge preserved the original total
6 No. 03-3721
of 78 months’ imprisonment while staying within the stat-
utory maximum on each count. Baldwin timely appealed.
II. Discussion
A. Challenges to Convictions
1. Statute of Limitations on Count 1
The statute of limitations for wire fraud is five years and
begins to run on the date the illegal communication is sent.
18 U.S.C. § 3282; United States v. Tadros, 310 F.3d 999,
1006 (7th Cir. 2002) (each wire is a separate offense). Count
1 of Baldwin’s indictment was based on Baldwin’s October
20, 1993, wire transmission of the $2 million he frau-
dulently induced Piscopo to transfer to the Daric Corpora-
tion account. As noted earlier, Acting Chief Judge Kocoras
ordered a suspension of the statute of limitations pursuant
to 18 U.S.C. § 3292 for a period of approximately seven
months. Under 18 U.S.C. § 3292(c)(2), however, when
foreign authorities take final action on the United States’
request for evidence before the untolled statute of limita-
tions would have expired, the judicial suspension cannot
exceed six months. The Spanish authorities took final
action on the government’s request before the statute of
limitations would otherwise have expired, so the limitations
period on Baldwin’s wire fraud of October 20, 1993, was
suspended for six months.
As the government now concedes, the $2 million wire
transfer that Piscopo sent on October 20, 1993, occurred five
years, six months and one day before the grand jury
returned its indictment on April 21, 1999.1 Expiration of the
1
Baldwin also contends that the statute of limitations expired on
Count 2 of the indictment, but he has apparently miscalculated.
Count 2 charged wire fraud in connection with a letter sent by
Baldwin to Piscopo on April 14, 1994. The indictment was re-
(continued...)
No. 03-3721 7
statute of limitations is an affirmative defense, not a bar to
jurisdiction, United States v. Meeker, 701 F.2d 685, 687 (7th
Cir. 1983), so Baldwin’s failure to raise the issue before trial
means that he is at best entitled only to plain-error review.2
See United States v. Ross, 77 F.3d 1525, 1537 (7th Cir. 1996)
(according plain-error review to an unraised statute of
limitations objection but finding no error in case before the
court). As we have noted, Baldwin was originally sentenced
to four concurrent 78-month terms of imprisonment, an
1
(...continued)
turned five years and one week later, well within the statute of
limitations as lengthened by virtue of Acting Chief Judge Kocoras’
order.
2
We say “at best” because there is an argument, not made by the
government, that under FED. R. CRIM. P. 12(b)(3) Baldwin has
waived and not merely forfeited his statute of limitations defense.
Rule 12(b)(3) specifies motions that must be made before trial; the
rule includes motions “alleging a defect in instituting the prosecu-
tion” or “a defect in the indictment or information.” Rule 12(e)
provides that matters covered by Rule 12(b)(3) that are not raised
by the pretrial motion deadline set by the court are waived,
subject to the district court’s authority to grant relief from the
waiver “[f]or good cause.” Other circuits apply Rule 12(b)(3) and
the waiver rule of (e) to statute of limitations arguments. United
States v. Ramirez, 324 F.3d 1225, 1228-29 (11th Cir. 2003); United
States v. Gallup, 812 F.2d 1271, 1280 (10th Cir. 1987). In this
circuit, statute of limitations arguments not timely raised in the
district court are considered forfeited, not waived, and are
accorded plain-error review. United States v. Ross, 77 F.3d 1525,
1536 (7th Cir. 1996). The holding in Ross is premised upon certain
language in the advisory committee note to Rule 12(b) suggesting
that a statute of limitations defense is among those matters that
may, not must, be raised by pretrial motion. Id. The government
has not argued that Ross should be revisited in light of the clear
text of the rule and the apparent conflict with other circuits; the
government cited Ross for the proposition that Baldwin’s statute
of limitations argument should be considered forfeited and
reviewed for plain error.
8 No. 03-3721
illegal sentence because each count was subject to a five-
year statutory maximum. The district court later corrected
the error, but (as we will discuss in a moment) the order
correcting the sentence came too late and the district court
lacked authority to enter it. See Part B.1., infra.
Accordingly, we have before us the original concurrent
sentences; under this court’s recent decision in McCarter,
406 F.3d at 464, an error that results only in a concurrent
sentence does not warrant correction as a plain error.
We acknowledged in McCarter that “because a defendant
must pay a separate $100 ‘special assessment’ (paid into the
Crime Victims Fund) for each felony, concurrent prison sen-
tences do now result in additional punishment.” Id. (cita-
tions omitted). But we held that the assessment is “a trivial
fee,” the erroneous imposition of which “is not a serious
enough error to be described as a miscarriage of justice and
thus constitute plain error.” Id.Baldwin argues that allowing a tardy prosecution under
the circumstances of this case raises concerns about the
witnesses’ memories and only serves to encourage dilatory
investigations by law enforcement, thereby implicating the
fairness and integrity of the judicial proceeding within the
meaning of the plain-error test of United States v. Olano,
507 U.S. 725, 736 (1993). These arguments are unpersua-
sive given that the indictment was only one day late.
McCarter applies here, and the statute of limitations vio-
lation does not qualify as plain error warranting correction
under the circumstances of this case.
2. Sufficiency of the Evidence
Baldwin challenges the sufficiency of the evidence used to
convict him—a tough row to hoe considering that we will
affirm a conviction if “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
No. 03-3721 9
(1979); see also United States v. Seawood, 172 F.3d 986, 988
(7th Cir. 1999) (characterizing burden of proof on challenges
to sufficiency of the evidence “a nearly insurmountable
hurdle”). To establish a violation of the federal wire fraud
statute, the government must prove that the defendant: (1)
participated in a scheme to defraud; (2) had an intent to
defraud; and (3) used the wires in furtherance of the
fraudulent scheme. United States v. Masten, 170 F.3d 790,
794 (7th Cir. 1999). Baldwin contends that the government
presented insufficient evidence to prove that he intended to
defraud Piscopo.
The contention is without merit. The government’s case
consisted of documentary evidence, expert testimony, and
witnesses with firsthand knowledge of Baldwin’s fraudulent
activities. The court saw bank records detailing the various
transactions involved. A law professor with expertise in
commercial and financial fraud examined the documents
and agreements and testified that Baldwin’s scheme had
many of the hallmarks of a “prime investment scam.” He
explained that it is not possible to instruct banks to desig-
nate funds for their reserves. Banks (including European
banks) do not solicit short-term deposits from private in-
vestors to keep their reserves up; they borrow from other
banks and government institutions. The government also
presented the testimony of John Mathewson, chairman of
the Cayman Islands bank where Piscopo’s $2 million were
deposited after initially being wired to the offshore
European bank. The district court found Mathewson’s
testimony credible because it was supported by documents
admitted into evidence, despite the fact that Mathewson
had himself pleaded guilty to money laundering and tax
evasion in a separate proceeding. Mathewson testified
about his relationship with Baldwin and Yolanda Wong, one
of Baldwin’s confederates who received $100,000 of
Piscopo’s money. Mathewson testified that Baldwin and
Wong were the only people with access to the account into
10 No. 03-3721
which Piscopo’s $2 million had been deposited, and he de-
tailed the various payments they made with that money—
payments to Baldwin’s friends, to credit card companies,
and payments for other personal expenses.
Baldwin testified in his own defense and offered a litany
of excuses that the district court judge characterized as “not
only incredible but border[ing] on the absurd.” Baldwin
claimed to have been a victim of the fraud rather than its
perpetrator; he continued to blame various unnamed indi-
viduals who supposedly orchestrated the scheme and had
true control over Piscopo’s money. For instance, Baldwin
claimed that the money was held in trust by a man known
to him only as “Mr. 24.” Baldwin insisted that he had no
real knowledge of financial matters, despite having talked
up his skill with money to Piscopo on multiple occasions.
We find not the slightest reason to question the conclusion
of the district court that the government proved its case
against Baldwin beyond a reasonable doubt.
B. Sentencing Issues
1. Correction of Sentence
Rule 35(a) of the Federal Rules of Criminal Procedure
provides that “[w]ithin 7 days after sentencing, the court
may correct a sentence that resulted from arithmetical,
technical, or other clear error.” FED. R. CRIM. P. 35(a).
Federal Rule of Criminal Procedure 45(b)(2) further states:
“The court may not extend the time to take any action
under Rules 29, 33, 34, and 35, except as stated in those
rules.” There is no provision in Rule 35 for an extension of
the seven-day period for correcting a sentence. The Supreme
Court has held that these rules operate to deprive the court
of authority to act after the time period specified in the rule
has elapsed. See Carlisle v. United States, 517 U.S. 416, 428
(1996) (district courts have no “inherent power” to act in
contravention of applicable rules of procedure).
No. 03-3721 11
The district court sentenced Baldwin on October 2, 2003.
Excluding two intermediate weekends (as Federal Rule of
Criminal Procedure 45(a) requires), the seven-day period for
correcting the court’s “clear error”—and there is no dispute
that the 78-month sentences constituted clear error— ended
on October 13, 2003. The court had no authority to correct
Baldwin’s sentence beyond that date. We therefore vacate
the revised sentence imposed on January 16, 2004, and
remand for resentencing.3
2. Sentence Enhancement for Abuse of Position of
Trust
The Sentencing Guidelines provide for a two-level en-
hancement if the defendant “abused a position of public or
private trust, or used a special skill, in a manner that
significantly facilitated the commission or concealment of
the offense.” United States v. Gould, 983 F.2d 92, 94 (7th
Cir. 1993); see also U.S.S.G. § 3B1.3. The district court ap-
plied this enhancement because it found that Baldwin held
himself out to be a legitimate investment broker and that
3
In supplemental briefing to this court, the parties debated the
effect on Baldwin’s sentence of United States v. Booker, 125 S. Ct.
738 (2005). Baldwin did not raise a Booker-type argument in the
district court and therefore plain-error review would apply. United
States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005). Had there
been no basis to disturb Baldwin’s sentence for other reasons, we
would have remanded the case to the district court for a statement
on whether under the now-advisory Sentencing Guidelines the
court would have imposed a lesser sentence. Id. at 483-84. But
Baldwin must be resentenced because his original sentence
exceeded the statutory maximum and the district court’s correc-
tion of the erroneous sentence came too late. Upon resentencing,
of course, the district court will be operating under the new
sentencing regime in which the Sentencing Guidelines are
advisory. Booker, 125 S. Ct. at 765.
12 No. 03-3721
he represented the prime bank lending “program” as a
legitimate and safe investment vehicle.
Whether Baldwin occupied a position of trust is a ques-
tion of fact that we review for clear error. United States v.
Boyle, 10 F.3d 485, 489 (7th Cir. 1993); see also
United States v. Beith, 407 F.3d 881, 891 (7th Cir. 2005)
(factual findings under Sentencing Guidelines continue to
be reviewed for clear error after United States v. Booker,
125 S. Ct. 738 (2005)). However, the interpretation of the
term “position of trust” is a legal question that we deter-
mine without deference to the district court. Boyle, 10 F.3d
at 489. In determining whether the defendant abused a
position of trust, we analyze the circumstances from the
perspective of the victim. United States v. Hathcoat, 30 F.3d
913, 919 (7th Cir. 1994) (citing United States v. Hill, 915
F.2d 502, 506 n.3 (9th Cir. 1990)). In addition, “the sentenc-
ing court must look beyond formal labels to the relationship
between the victim and the defendant and the responsibility
entrusted by the victim to the defendant.” United States v.
Davuluri, 239 F.3d 902, 908 (7th Cir. 2001).
Baldwin contends that applying the enhancement under
the facts of this case is tantamount to applying it to every
case of fraud because fraud by definition involves an abuse
of the victim’s trust. Baldwin cites the commentary to
§ 3B1.3, which indicates that the enhancement may only be
applied when the defendant abuses a position of public or
private trust “characterized by professional or managerial
discretion (i.e., substantial discretionary judgment that is
ordinarily given considerable deference).” U.S.S.G. § 3B1.3,
cmt. n.1. Baldwin argues that he was not a member of any
professional organization and the joint venture agreements
conferred no discretion on him regarding how Piscopo’s
“investments” were to be handled. He says he was only
empowered to “move Piscopo’s money from A to B and back
again with interest, nothing more.”
No. 03-3721 13
The government defends the application of the enhance-
ment by citing a different section of the commentary which
provides that the § 3B1.3 enhancement is warranted in
cases where the defendant “provides sufficient indicia to the
victim that the defendant legitimately holds a position of
private or public trust when, in fact, the defendant does
not.” U.S.S.G. § 3B1.3, cmt. n.2. As an example of such false
pretenses, the commentary cites the case of a defendant
who “perpetrates a financial fraud by leading an investor to
believe the defendant is a legitimate investment broker.” Id.
The government argues that Baldwin held himself out to
Piscopo as a legitimate investment broker and that the
district so found in sentencing him.
In the district court’s findings and conclusions issued in
connection with the judgment of conviction, the court never
explicitly found that Baldwin held himself out as a “broker,”
although the court did enter this finding at the sentencing
hearing. In her written decision after trial, the judge found
that Baldwin offered Piscopo his “personal guarantee” that
the investments were risk free and that Piscopo agreed to
invest the money because of his faith in a 20-year friend-
ship with Baldwin and his belief that Baldwin was honest.
The question before us is whether Baldwin’s exploitation of
his long-standing personal relationship with Piscopo
put him in a “position of trust” upon which the sentence
enhancement may be based. We hold that it does.
In United States v. Dorsey, 27 F.3d 285, 289 (7th Cir.
1994), we reversed the imposition of an abuse of trust
enhancement because the defendant’s relationship with his
victim was “a standard commercial agreement between a
lending institution, a bank and an automobile dealership.”
Dorsey, the owner of an automobile dealership, defrauded
the bank that supplied the “floor plan” loan financing for his
stock by concealing from the bank the sale of some cars. We
held that “to impose a sentence enhancement for abuse of
a position of trust, there must be something more than a
14 No. 03-3721
mere contractual relationship between the parties.” Id.Baldwin tries to bring himself within this holding in Dorsey
by emphasizing the limited nature of the joint venture
agreements signed by Baldwin. The agreements, he argues,
were “mere contracts” akin to those in Dorsey.
But Baldwin’s relationship with Piscopo went far beyond
the joint venture agreements. There is no question that
Baldwin succeeded in defrauding Piscopo by making reas-
suring representations and a “personal guarantee” that
specifically traded on the two men’s long-standing personal
relationship. Under the terms of the guideline, a sentence
enhancement is warranted for abuses of public or private
trust. Abuse of a purely personal relationship of trust in
furtherance of a fraudulent scheme is a legitimate ground
for imposition of the enhancement. See United States v.
Strang, 80 F.3d 1214, 1220 (7th Cir. 1996) (affirming
application of abuse of trust enhancement where defendant,
although not a licensed investment broker, convinced vic-
tims to invest in a fraudulent scheme by befriending them).
More fundamentally, Baldwin is wrong that the applica-
tion of the enhancement here would effectively extend the
enhancement to all frauds. It is true that all frauds involve
deceit, but they may or may not involve the abuse of a
position of trust. Application of the enhancement turns not
on whether the scheme involved deceit, but whether the
defendant exploited a particular sort of relationship with
the victim. In Davuluri we observed that the consistent em-
phasis in our § 3B1.3 cases has been on the victim’s confer-
ral of substantial discretion on the defendant to act on his
or her behalf. Davuluri, 239 F.3d at 909 (citing United
States v. Hernandez, 231 F.3d 1087, 1091 (7th Cir. 2000));
see also United States v. Gellene, 182 F.3d 578, 596 (7th Cir.
1999); United States v. Hoogenboom, 209 F.3d 665, 671 (7th
Cir. 2000). In this sense, the joint venture agreements cited
by Baldwin undermine his position on appeal. The agree-
ments (actually, the addenda setting forth the structure of
No. 03-3721 15
the investment “programs”) give the Daric Corpora-
tion—controlled by Baldwin—complete control over the
management of Piscopo’s “investment.” One term of the
agreement, in fact, forbids Piscopo from initiating any con-
tact with the financial institutions that would be involved
in the “program.” By the terms of these agreements and
based upon the long-standing personal relationship of trust
between the two men, Piscopo conferred upon Baldwin total
control over a large amount of his money. The district court
did not err in applying the two-level enhancement for abuse
of a position of trust.
3. Restitution Order
The district court ordered Baldwin to pay $3 million
in restitution to Piscopo. Baldwin contends that the resti-
tution order amounts to an ex post facto law in violation of
Section 10 of Article I of the Constitution. The restitution
order was issued pursuant to 18 U.S.C. § 3663A, which be-
came effective in 1996, after Baldwin committed his crimes.
See Mandatory Victim Restitution Act, Pub. L. No. 104-132,
Title II, § 204(a) (effective April 24, 1996). The law makes
restitution mandatory for certain crimes, including wire
fraud; the previous restitution statute gave courts discre-
tion and required consideration of the financial resources of
the defendant. Baldwin is broke and could not pay even the
$400 special assessment, which the district court therefore
waived. Baldwin argues that if the district court took into
consideration his financial situation under the old law, it
would never have ordered $3 million in restitution.
Baldwin acknowledges that we have already rejected the
argument that § 3663A violates the Ex Post Facto Clause.
See United States v. Newman, 144 F.3d 531, 537-38 (7th
Cir. 1998) (restitution is an equitable device for restoring
victims to their condition prior to when the crime took place
rather than a criminal sanction); see also United States v.
16 No. 03-3721
Dawson, 250 F.3d 1048, 1052 (7th Cir. 2001). He asks us to
overrule Newman and adopt the contrary reasoning of other
circuits. We decline the invitation—and not for the first
time. In United States v. Lopez, 222 F.3d 428, 440 (7th Cir.
2000), we refused to reconsider Newman despite the
disagreement of several other circuits. See also Dawson, 250
F.3d at 1052. Baldwin presents no compelling justification
for us to revisit this issue.
III. Conclusion
For the foregoing reasons, we reject Baldwin’s contention
that the statute of limitations violation on Count 1 consti-
tutes plain error. Because the evidence is sufficient to sus-
tain the defendant’s convictions for wire fraud, we AFFIRM
Baldwin’s conviction on all counts. We reject Baldwin’s
challenge to the imposition of a two-level enhancement
under U.S.S.G. § 3B1.3 for abuse of a position of trust, as
well as his challenge to the restitution order. However,
because Baldwin’s original sentence exceeded the statutory
maximum and the district court lacked authority to correct
the error after the seven-day period specified in Rule 35(a)
had expired, we VACATE the sentence and REMAND for
resentencing.
No. 03-3721 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-12-05