United States v. Swanson, David H. ( 2007 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-4432
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    DAVID H. SWANSON,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
    No. 1:01CR00083—Sarah Evans Barker, Judge.
    ____________
    ARGUED MAY 8, 2006Œ—DECIDED APRIL 20, 2007
    ____________
    Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. For the second time David
    Swanson, who worked as an independent consultant
    and briefly as the chief executive officer of Countrymark
    Cooperative, Inc., appeals his prison sentence and the
    restitution and forfeiture orders entered on his convic-
    tions arising from a fraudulent scheme to siphon funds
    for his personal use from his consulting clients and
    Countrymark. We remanded previously, instructing the
    Œ
    Pursuant to Operating Procedure 6(b), this successive appeal
    has been submitted to the same panel that decided Case No.
    03-1863.
    2                                             No. 05-4432
    district court to reconsider the amounts it ordered as
    restitution and forfeiture, and for recalcuation of the
    guidelines imprisonment range using the 1998 version of
    the guidelines, which the parties agreed should apply. We
    also recognized that aspects of Swanson’s sentence under
    the guidelines might be affected by the then-forthcoming
    decision in United States v. Booker, 
    543 U.S. 220
    (2005).
    Now in this second appeal, Swanson renews his disagree-
    ments with the district court’s calculation of the fraud
    loss and the amount of restitution, and he also presses a
    new contention that in formulating his guidelines sen-
    tence the court erroneously applied an upward adjust-
    ment for his role as an organizer or leader of extensive
    criminal activity. We are not persuaded by these argu-
    ments—or by others that rest on views about Booker that
    we have rejected in other cases—and accordingly affirm
    the judgment of the district court.
    I.
    We presume familiarity with our prior opinion, United
    States v. Swanson, 
    394 F.3d 520
    (7th Cir. 2005) (“Swanson
    I”). Briefly, as an independent consultant and as the CEO
    of Countrymark, Swanson managed the acquisitions of
    related agricultural enterprises. He used his positions for
    personal gain, however, by obtaining “reimbursement” for
    phony expenses and by inflating the reported purchase
    price of one acquisition and keeping the extra money for
    himself. After a three-week trial, a jury found Swanson
    guilty of wire fraud, money laundering, interstate trans-
    portation of stolen funds, and income tax evasion. At the
    first sentencing, the district court found that Swanson’s
    fraud led to $6.7 million in losses; that conclusion was
    based in part on what the court characterized as “the
    government’s proof at trial that the jury accepted.” The
    court also entered orders of restitution and forfeiture
    No. 05-4432                                               3
    but failed to consider whether the restitution figure
    should have been offset by money repaid to the victim
    corporations and by the value, if any, they received from
    Swanson’s work on the acquisitions. The court also
    neglected to ensure that the forfeiture figure encom-
    passed only proceeds from Swanson’s illegal activities.
    Because of these errors, we remanded for resentencing.
    We noted that the jury returned general verdicts and thus
    did not make any findings relevant to the fraud loss;
    accordingly, we instructed the district court to revisit the
    loss determination and, if necessary depending on the
    outcome in Booker, other guidelines findings as well. See
    Swanson 
    I, 394 F.3d at 526
    n.1. We also directed the
    district court to reconsider the amounts of restitution and
    forfeiture after making additional factual findings, and
    to recalculate the imprisonment range using the 1998
    guidelines rather than the 2001 version that the court
    employed. 
    Id. at 530.
      At resentencing the parties and the district court all
    agreed that Swanson should be sentenced using the 1998
    version of the guidelines. The government, however,
    argued that our remand in Swanson’s first appeal did not
    require the district court to recalculate the fraud loss for
    purposes of the guidelines. In a memorandum supported
    by an extensive compilation of trial exhibits, the gov-
    ernment offered revised calculations for the amounts of
    restitution and forfeiture. For his part, Swanson argued
    that our remand did require a recalculation of the
    fraud loss, and that the government failed to support its
    revised calculation with adequate evidence. He also
    objected that he had acted alone and thus a four-level
    upward adjustment under U.S.S.G. § 3B1.1 for organiz-
    ing and leading the criminal activity should not be reim-
    posed. This was not an argument he made at the first
    sentencing hearing or that he raised in his prior appeal.
    Swanson further objected to the government’s proposed
    4                                              No. 05-4432
    restitution figure. He argued that the requested amount
    still failed to account for the value that his work, even if
    fraudulent in part, may have conferred on the victims, but
    he refused to suggest an alternative figure for restitu-
    tion or produce any evidence that part of what he did for
    his victims was legitimate.
    The district court recalculated the fraud loss using the
    government’s new itemization but still arrived at $6.7
    million, just as before. The court used this figure in
    applying U.S.S.G. § 2F1.1, the applicable offense guideline
    from the 1998 version of the guidelines, and once again
    added four levels under § 3B1.1(a). The court then sen-
    tenced Swanson to 151 months of imprisonment, the high
    end of the resulting range of 121 to 151 months. In addi-
    tion, with no proposed restitution figure from Swanson,
    the court adopted the government’s calculations, which
    credited Swanson for repayments made to Countrymark,
    and ordered Swanson to pay $2.2 million in restitution.
    II.
    A. Fraud Loss Amount
    Swanson first argues that the district court erred in
    calculating a $6.7 million fraud loss. The court’s calcula-
    tion subjected Swanson to a 14-level upward adjustment
    under the 1998 version of the guidelines. See U.S.S.G.
    § 2F1.1(b)(1)(O), (P) (1998) (increasing offense level by 14
    if loss caused by fraud totals more than $5 million but
    less than $10 million). The two largest components of
    the loss stem from Swanson’s conduct during Country-
    mark’s acquisition of Malta Clayton, an agriculture feed
    company, and his role in promoting a start-up company
    called GreenHeat, LLC. He says the loss figure is over-
    stated since it includes (1) amounts that even now he
    characterizes as “closing costs” for the Malta Clayton
    No. 05-4432                                                5
    acquisition, (2) investments in GreenHeat that Swanson
    says were lost because the company failed and not be-
    cause of his fraud, and (3) losses stemming from conduct
    not charged in his indictment.
    As to the acquisition, Swanson told Countrymark’s
    board of directors that acquiring Malta Clayton would cost
    $33 million. In fact, as Swanson knew, the actual cost
    was only $31 million, but he collected a total of $35 million
    for the deal from Countrymark and another investor.
    Swanson left the $4 million surplus in a bank account
    that he alone controlled, and from that account he di-
    verted half to his personal use before he was discovered. At
    trial the chairman of Countrymark’s board confirmed
    that Swanson misrepresented the acquisition cost to be
    $33 million. The government also introduced phony
    invoices that Swanson created to convince Countrymark
    that nearly all of the $2 million he used for personal
    expenses and funneled to his private accounts had gone to
    Vickers and Allen, Inc., a consulting firm, for “closing
    costs” associated with the acquisition. Swanson did not
    disclose to the board that he controlled this firm, and its
    two named principals testified that they were unaware
    of any work performed in connection with the Malta
    Clayton acquisition.
    After Countrymark discovered it had been bilked and
    forced Swanson to resign, he began promoting a start-up
    company called GreenHeat, LLC, which purportedly was
    developing an environmentally friendly fuel derived from
    soybeans. Swanson amassed a sizable amount of capital for
    the venture, including a $1.13 million investment by
    Archer Daniels Midland Company (“ADM”). But instead of
    using this money to develop GreenHeat, Swanson used
    it to pay for personal expenditures and to make several
    installment payments to Countrymark under the terms of
    a settlement agreement the company reached with
    Swanson. Ultimately, ADM and the other investors lost
    6                                             No. 05-4432
    all of the money they contributed to GreenHeat. At trial an
    ADM representative testified that he reviewed some of
    GreenHeat’s financial information provided by Swanson
    shortly before writing off the investment and could detect
    no misstatements. But at Swanson’s first sentencing
    hearing, an agent from the Internal Revenue Service
    (“IRS”) testified that she had reviewed GreenHeat’s
    bank and tax records and concluded that the start-up
    was never viable and that Swanson converted the com-
    pany’s funds to his personal use.
    All of this was adequately established, and at
    resentencing the district court found that the “amount put
    at risk” by Swanson included the entire $4 million he
    diverted during the Malta Clayton acquisition. The court
    likewise included ADM’s investment in GreenHeat.
    Although the GreenHeat swindle was not alleged in the
    indictment, the court noted that loss for guidelines pur-
    poses encompasses other acts that are part of a “common
    scheme or course of conduct.” And, the court reasoned,
    Swanson’s theft of ADM’s $1.13 million investment in
    GreenHeat was just another step in his scheme of “obtain-
    ing funds through mergers, acquisitions and joint ven-
    tures.”
    Swanson first challenges the district court’s loss find-
    ing because, he asserts, some of the extra $4 million he
    took for the Malta Clayton acquisition might really have
    been used for legitimate closing costs. To support this
    position, Swanson points to trial testimony by an Ernst &
    Young accountant (and government witness) who stated
    during cross-examination that the fees charged by Vickers
    and Allen for the Malta Clayton acquisition fell within
    the range calculated under a standard formula used to
    determine broker’s fees.
    A district court need only make a reasonable estimate of
    the loss flowing from a fraudulent scheme, see U.S.S.G.
    No. 05-4432                                                7
    § 2B1.1 cmt. n.3(C); United States v. Vivit, 
    214 F.3d 908
    ,
    915 (7th Cir. 2000), and we will not disturb the court’s loss
    calculation—a factual finding—unless it is clearly errone-
    ous, United States v. Berheide, 
    421 F.3d 538
    , 540 (7th Cir.
    2005). Loss cannot include the value of services a defen-
    dant legitimately performed for the victims of his fraud,
    
    Vivit, 214 F.3d at 915
    , but it does include the “amount
    that the defendant placed at risk by misappropriating
    money or other property,” United States v. Lauer, 
    148 F.3d 766
    , 768 (7th Cir. 1998) (counting all money placed in
    Ponzi scheme as intended loss, even though portion was
    recovered, because entire amount was placed at risk); see
    also Swanson 
    I, 394 F.3d at 527
    .
    The district court did not commit clear error. The court
    properly concluded that Swanson put the surplus funds
    for the Malta Clayton acquisition at risk. He obtained
    control over the $4 million by intentionally overstating the
    acquisition cost of Malta Clayton, and once he had the
    money he placed it in a bank account over which he
    maintained sole control. Swanson then created false
    invoices to cover the diversion of $2 million from that
    account, and the remaining $2 million was at risk of a
    similar fate. Moreover, defense counsel’s unsupported
    assertion that Swanson might have legitimately spent
    some of the $4 million on closing costs is frivolous. See
    Swanson 
    I, 394 F.3d at 527
    (“[A] defendant’s wholly
    unsubstantiated statements are not enough to counter or
    even question the court’s acceptance of the government’s
    proof of loss as outlined in the presentence investigation
    report.”); Campania Mgmt. Co., Inc. v. Rooks, Pitts &
    Poust, 
    290 F.3d 843
    , 853 (7th Cir. 2002) (stating that
    counsel’s representations are not evidence); United States
    v. Krankel, 
    164 F.3d 1046
    , 1054-55 (7th Cir. 1998) (holding
    that “bald, unsupported assertions” by defendant cannot
    refute presentence investigation report). The Ernst &
    Young accountant’s testimony is irrelevant. The purported
    8                                              No. 05-4432
    closing costs might have been reasonable had Vickers
    and Allen actually performed work on the acquisition, but
    the principals of that firm denied doing any such work,
    and they would know. There is no mystery about what
    Swanson did with the funds he diverted; he sent a sizable
    amount to a lawyer in Switzerland and moved the rest to
    his personal bank account.
    Swanson also contests the inclusion in the fraud loss of
    ADM’s $1.13 million investment in GreenHeat. Swanson
    still insists that GreenHeat was a legitimate venture that
    simply failed; he points to the testimony of the ADM
    representative who reviewed the financial information
    Swanson provided and found nothing suspect. But that
    is the point: Swanson was the source of the information,
    and it was false. That is why the IRS agent, after studying
    tax and bank records, concluded that Swanson once again
    siphoned company funds for personal use, and that
    GreenHeat was never viable.
    Swanson also argues that the district court should have
    excluded the GreenHeat swindle from the fraud loss
    because it was not charged in the indictment. But relevant
    conduct not charged in the indictment is always fair
    game at sentencing. The court was required to include
    the GreenHeat losses if they were “part of the same
    course of conduct or common scheme or plan as the offense
    of conviction.” U.S.S.G. § 1B1.3(a)(2); see United States v.
    Firth, 
    461 F.3d 914
    , 917-18 (7th Cir. 2006). An offense
    is part of a “common scheme or plan” if it is “substantially
    connected” to the offense of conviction “by at least one
    common factor, such as common victims, common accom-
    plices, common purpose, or similar modus operandi.”
    U.S.S.G. § 1B1.3 cmt. n.9(A); see United States v.
    Delatorre, 
    406 F.3d 863
    , 867 (7th Cir. 2005). Here, the
    court found that the common scheme was defined by a
    similar modus operandi: “obtaining funds through merg-
    ers, acquisitions and joint ventures.” Swanson specialized
    No. 05-4432                                                9
    in misusing his positions to convert to his own use funds
    invested in the agricultural businesses he was promoting.
    He followed this scheme in procuring ADM’s investment
    in GreenHeat, just as he did in promoting Countrymark’s
    acquisition of Malta Clayton. The district court’s inclu-
    sion of this fraud as relevant conduct is not clearly errone-
    ous.
    Under the 1998 guidelines used by the district court at
    resentencing, Swanson’s imprisonment range is sustain-
    able with a fraud loss of between $5 and $10 million, see
    U.S.S.G. § 2F1.1(b)(1)(O), (P) (1998), and the losses to
    Countrymark ($4 million) and ADM ($1.13 million) are
    enough to put Swanson within this range.
    B. Aggravating Role Adjustment
    Swanson also argues that, because he allegedly acted
    alone, the district court clearly erred when it increased his
    guidelines offense level by four based on his role as an
    “organizer or leader of criminal activity that . . . was
    otherwise extensive.” U.S.S.G. § 3B1.1(a). But as we have
    previously held, “any issue that could have been but was
    not raised on appeal is waived and thus not remanded.”
    United States v. Husband, 
    312 F.3d 247
    , 250-51 (7th Cir.
    2002); see also United States v. Morris, 
    259 F.3d 894
    , 898
    (7th Cir. 2001).
    In sentencing Swanson the first time, the district court
    applied this upward adjustment, but Swanson did not
    challenge its application during his first appeal. In
    Swanson I we mentioned this adjustment in a footnote,
    explaining that at resentencing the district court might
    need to reconsider its application depending on the
    outcome of 
    Booker. 394 F.3d at 526
    n.1. We were con-
    cerned that the Supreme Court might decide that ad-
    justments such as this must be determined by a jury
    10                                             No. 05-4432
    rather than the sentencing court, see 
    id., but that
    contin-
    gency did not come to pass. See 
    Booker, 543 U.S. at 245-46
    ; United States v. White, 
    472 F.3d 458
    , 464 (7th Cir.
    2006); United States v. Owens, 
    441 F.3d 486
    , 490 (7th Cir.
    2006). Consequently, the district court did not have
    to revisit its decision to impose the aggravating role
    adjustment in Swanson’s case—any factual dispute as to
    its application was beyond the scope of our remand. In
    an abundance of caution the district court entertained
    and rejected defense counsel’s contention that this ad-
    justment is inapplicable because Swanson purportedly
    acted alone, but we will not similarly indulge Swanson’s
    argument on appeal. Swanson “cannot use the accident of
    a remand to raise in a second appeal an issue that he could
    just as well have raised in the first appeal.” United States
    v. Parker, 
    101 F.3d 527
    , 528 (7th Cir. 1996). Swanson
    waived this issue by failing to raise it during his first
    appeal.
    C. Restitution
    In this appeal, Swanson again argues that in calculating
    restitution the government failed to meet its burden of
    sorting out the financial benefit his victims purportedly
    received from his fraudulent activities. In Swanson I, we
    explained that, as part of its burden to prove a restitution
    amount, the government must deduct any value that a
    defendant’s fraudulent scheme imparted to the 
    victims. 394 F.3d at 527-28
    . Accordingly, at resentencing the
    government recalculated the restitution amount and
    submitted a supporting memorandum that cites exten-
    sively to trial testimony and to a compilation of trial
    exhibits. This time around the government’s restitution
    figure excluded Swanson’s repayments to Countrymark
    and losses arising from any uncharged relevant conduct.
    The government largely based its restitution figure on
    No. 05-4432                                               11
    Swanson’s conduct in Countrymark’s acquisition of Malta
    Clayton and its earlier acquisition of another company,
    Buckeye Feed Mills.
    The government’s memorandum directed the district
    court to evidence that Swanson took $2 million of
    $4 million he diverted during the acquisition of Malta
    Clayton. The memorandum also pointed to the following
    evidence about Countrymark’s acquisition of Buckeye.
    Selig Ziess, a venture capitalist, testified at trial that he
    loaned Swanson $284,000 during Swanson’s failed effort
    to buy Buckeye before he was hired by Countrymark as
    its CEO. Swanson promised that he would return the
    money at the closing of Buckeye’s sale and, in fact, did so.
    At trial the government introduced an invoice submitted
    on behalf of Swanson to Buckeye for $284,000 payable to
    Associated Capital, a firm run by Ziess. The itemized
    invoice represents that payment was required for various
    services, including an industry review performed by
    Vickers and Allen. Both Ziess and representatives of
    Vickers and Allen testified that they knew nothing
    about the Buckeye closing or the fees listed in the Associ-
    ated Capital invoice. Swanson requested an additional
    $247,392 in reimbursements from Buckeye related to the
    closing, and this itemized request was also introduced at
    trial. The CFO of Buckeye testified that many of the
    listed expenses were duplicative or for work that was not
    performed. Many of the people Swanson claimed to have
    paid for services related to the closing testified that they
    had performed no work on the acquisition.
    Swanson did not propose an alternative restitution
    figure, but argued that the government failed to meet its
    burden of sorting out the benefit received from his fraudu-
    lent activities from the losses. Given the evidentiary
    support provided by the government, the district court
    found that these amounts were “sufficiently authoritative”
    and adopted the government’s recommendation, ordering
    12                                            No. 05-4432
    Swanson to pay Countrymark $1.662 million and Buckeye
    $531,392 in restitution.
    Here, Swanson essentially refashions his argument
    regarding the fraud loss figure and contends that some of
    the restitution awarded to Countrymark for losses associ-
    ated with the Malta Clayton and Buckeye acquisitions
    were actually legitimate closing costs. And like his argu-
    ment regarding the court’s fraud-loss calculation, this
    argument is doomed. Restitution is subject to a preponder-
    ance standard, and we review the court’s calculation for
    abuse of discretion. See United States v. Danford, 
    435 F.3d 682
    , 689 (7th Cir. 2005). The evidence shows that the
    requested reimbursements were not for actual services
    related to the closing of the business transactions, but
    that they were false requests for work that was never
    performed.
    D. Constitutional Issues
    The remaining issues, raised by Swanson only to pre-
    serve Supreme Court review, are without merit. First,
    Swanson argues that the application of the remedial
    holding of Booker, which renders the guidelines advisory,
    violates the limitations on ex post facto judicial
    decisionmaking inherent in the idea of due process. We
    have previously rejected this argument, noting that Booker
    affected neither what conduct was considered criminal
    nor the statutory maximum penalties, and we do so again
    here. See United States v. Jamison, 
    416 F.3d 538
    , 539 (7th
    Cir. 2005). Lastly, Swanson argues that he was entitled to
    a jury finding beyond a reasonable doubt regarding his
    forfeiture and restitution amounts. But because restitution
    is a civil remedy, rather than a criminal punishment, it
    may be determined by a judge using a preponderance of
    the evidence standard and remains unaffected by Booker.
    See United States v. LaGrou, 
    466 F.3d 585
    , 593 (7th Cir.
    No. 05-4432                                           13
    2006); 
    Danford, 435 F.3d at 689
    ; United States v. George,
    
    403 F.3d 470
    , 473 (7th Cir. 2005). Similarly, the Sixth
    Amendment and Booker do not apply to forfeiture orders
    because there is no statutorily prescribed maximum
    amount of forfeiture. Swanson 
    I, 394 F.3d at 526
    ; United
    States v. Tedder, 
    403 F.3d 836
    , 841 (7th Cir. 2005).
    III.
    Accordingly, the judgment of the district court is
    AFFIRMED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—4-20-07