United States v. Gregory Wolfe ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3281
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
G REGORY W OLFE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:10-cr-00207-RL-PRC-2—Rudy Lozano, Judge.
A RGUED S EPTEMBER 19, 2012—D ECIDED D ECEMBER 5, 2012
Before B AUER, K ANNE, and W OOD , Circuit Judges.
B AUER, Circuit Judge. Gregory Wolfe was convicted on
one count of bank theft and one count of interstate trans-
portation of stolen goods under 18 U.S.C. §§ 2113(b) and
2314 for his role in a copper theft scheme. The district
court sentenced Wolfe to eighty-eight months’ impris-
onment on each count, to be served concurrently,
followed by concurrent three-year terms of supervised
release. The district judge also ordered restitution in the
2 No. 11-3281
amount of $3,028,011.29. Wolfe appeals, contending that
he was deprived of a fair trial because of statements the
prosecutor made during closing argument. Wolfe also
challenges the sentence he received and the restitution
order imposed. Finding that Wolfe’s contentions lack
merit, we affirm.
I. BACKGROUND
Wolfe began working at Katoen Natie (“KTN”) in
May 2008. KTN is an international company involved in
the packaging and storing of plastics and various com-
modities, including aluminum and copper. It has U.S.
warehouses in Gary, Indiana; Texas; New Jersey; Louisi-
ana; and California. Wolfe worked at the Gary ware-
house where his stepfather, Gregory Harris, was the
operations manager. Wolfe was hired in 2008 as a
forklift operator but was later given more of a super-
visory role.
In late 2008 to early 2009, KTN began storing
copper for Henry Bath, LLC, at the Gary warehouse.
Henry Bath’s copper arrived at the warehouse in
bundles of approximately sixteen to twenty-six copper
sheets. Each copper sheet was approximately three feet
long by three feet wide and weighed roughly 330 pounds,
and the top sheet of every bundle had a sticker
identifying which lot it was from. The copper is traded
on the London Metal Exchange (“LME”) by the warrant;
one warrant is equal to ten bundles. The weight of each
bundle is an important component of the trading
process, so LME regulations require each bundle to
be secured by two bands at all times.
No. 11-3281 3
Shortly after KTN began storing copper for Henry Bath,
Harris became the facilities manager, which put him
in charge of the entire Gary warehouse, and Wolfe
became the point of contact for the Henry Bath account.
In 2009, Wolfe had an in-depth conversation
with Kenneth England, manager of Henry Bath’s
U.S. operations, about the protocol for banding the
copper bundles. England informed Wolfe that it was
KTN’s responsibility to make sure that any bands that
had become severed during the copper’s transportation
to the Gary warehouse were immediately repaired. He
emphasized to Wolfe the importance of each bundle
being secured by two bands at all times, as per LME
regulations, in order to prevent copper from being
stolen from a bundle. England also told Wolfe that
KTN was not to move any copper in the Gary warehouse
from the location where it was originally placed—known
as the “place of rest”—unless it was being shipped out
or moved to save space within the warehouse.
Wolfe was also told that, before any copper shipment
could occur, Henry Bath was required to inform KTN
about the particular items that would be removed from
the warehouse and loaded onto a truck. And once a
truck was loaded but before it left the warehouse, Henry
Bath was to create a receipt—the “bill of lading”—that
would be given to the truck driver. Wolfe was also on
notice that Henry Bath would only generate a bill of
lading during its normal business hours of 8:00 a.m. to
4:30 p.m. EST. These copper-shipping procedures were
reiterated to Wolfe during a seminar at Henry Bath’s
Baltimore, Maryland, headquarters in January 2010.
4 No. 11-3281
The first copper shipments out of the Gary ware-
house occurred in December 2009. Harris instructed
Wolfe, who in turn called and directed Craig Olds and
Jose Morales (lower-level employees at KTN who per-
formed tasks at Wolfe’s direction), to arrive at the ware-
house at 3:00 a.m. When Wolfe, Olds, and Morales were
at the warehouse, two trucks arrived, and the three em-
ployees loaded certain copper bundles onto the trucks.
The trucks then left the warehouse. Wolfe testified at
trial that he participated in two copper shipments like
this during December 2009.
During the summer of 2010, Wolfe asked at least five
KTN employees—regular employees (Olds, Morales, and
Noel Santos) and temporary help (Julio Virtes and
Robert Martinez)—whether they would be willing to
assist with copper re-bundling. 1 Wolfe told the indi-
viduals that the copper bundles contained too many
sheets, and they should take the top piece off, remove
the next sheet or sheets from the stack, and then put the
top piece back on the stack. This resulted in the creation
of entirely new copper bundles. The initial plan was to re-
1
Olds was the first KTN employee to assist Wolfe with this re-
bundling process. Harris asked Olds if he would be willing to
work overtime, to which Olds said yes, and then instructed
him to speak to Wolfe. Olds assisted Wolfe at 3:00 a.m. on the
next Saturday morning for roughly twelve hours and the
next Sunday morning beginning around 3:00 a.m. to 6:00 a.m.
The two men were able to create roughly five new bundles
of copper that weekend.
No. 11-3281 5
band the original bundles, but when that proved
too difficult, the KTN employees simply left the bundles
with broken bands. The new bundles were moved to
the back of the warehouse, away from the original
copper bundles.2
The KTN employees referred to the copper re-bundling
as “G-Money’s Project,” “G-Money” being Wolfe’s nick-
name. Regardless of which employees were assisting at
the time, some employees removed copper sheets from
the bundles while others were responsible for moving
the newly-formed bundles to a different location.
Wolfe maintained a piece of paper with file num-
bers—jokingly referred to as Wolfe’s “little black
book”—that he used to keep track of which copper
bundles had sheets removed from them. The “project”
was never completed during normal KTN business
hours; employees either arrived early or stayed late
on weekdays or completed the work on week-
ends. Wolfe told employees who asked him about the
copper re-bundling that they were “fixing a problem
for the customer to keep the customer happy” or “not
to ask questions.”
2
The original copper bundles were banded with a “manufac-
turing band.” These bands were marked with the initials of
the company factory where the bundles were made. The bands
on the newly-formed bundles often did not have any manufac-
turer marks. Wolfe explained this difference by stating that
the forklift used to move bundles often caused the bands
to break, so they had to re-band the bundles with new bands.
6 No. 11-3281
Michael Cohen, who purchased the copper directly
from Harris on behalf of his business, Team Alliance
Plastics, sent trucks to the Gary warehouse to pick up
the copper. The trucks typically arrived at the Gary
warehouse between 3:00 a.m. and 4:00 a.m. to receive
the copper loads. Eron Titsworth, a truck driver for
Team Alliance Plastics, testified that he had a dif-
ficult time getting through KTN’s security gates on one
occasion, but after calling Harris, Morales arrived at
the gate in less than two minutes, and he never again
had trouble with security. Once the trucks were past
security, Olds and Morales loaded the trucks in confor-
mance with the instructions they had received from
Wolfe regarding which copper bundles to load. The
truck drivers never received any paperwork from KTN
in connection with the copper pickups; they created
their own bills of lading in case they were stopped by
law enforcement personnel.
After the copper bundles were loaded onto the trucks,
the truck drivers transported them from the Gary ware-
house to the Team Alliance Plastics warehouse in Spring-
field, Michigan. Upon receipt of the copper shipments,
Cohen would remove the bands and return them to
Harris. The copper was then repackaged and sold to
Stiana, a company located in Toronto, Canada. Cohen
received approximately $500,000 from Stiana for the
copper; he paid Harris approximately $360,000. Cohen
testified that he purchased roughly eleven to fourteen
trucks’ worth of copper between the first shipment
of copper in December 2009 and the last shipment
in September 2010.
No. 11-3281 7
In late August 2010, Henry Bath conducted a random
audit of the copper at the Gary warehouse. The auditors
discovered that the weight of certain warrants was too
light. Harris was notified of the discrepancies and in-
formed that the auditors would return in a few
days to reweigh all of the copper stored in the
Gary warehouse.
When the Henry Bath employees returned to the
Gary warehouse in September 2010, they discovered
that many of the copper bundles had broken bands and
were missing at least one sheet of copper. They
also noticed that seven complete warrants of copper
that had been at the warehouse during the August 2010
audit were now missing. Approximately $2,900,000 worth
of copper—390 metric tons—was missing.3 A review of
Henry Bath’s records revealed that no copper left the
Gary warehouse legitimately between August 2009 and
September 2010. Two days after Henry Bath learned of
the missing copper, Harris failed to show up for work;
instead, he sent Frank Vingerhoets, the president
of KTN, a text message saying he believed he would
be fired.
Wolfe was told that day to leave the Gary warehouse
premises, and Harris and Wolfe were fired.
On November 18, 2010, a Grand Jury returned a two-
count indictment against Wolfe and Harris for violating
18 U.S.C. §§ 2113(b) and 2314—bank theft and interstate
3
This was a relatively small percentage of the 12,000 metric
tons of copper that were stored in the Gary warehouse.
8 No. 11-3281
transportation of stolen goods.4 A four-day jury trial
was later held for Wolfe.
During the trial, Wolfe claimed he had no knowledge
of the copper theft scheme; he was simply following
Harris’ orders and directions. To rebut this defense, the
Government offered the testimony of Ashby Gurgon,
Wolfe’s on-and-off girlfriend. Gurgon described Harris
and Wolfe as living extravagantly during the summer
of 2010. Gurgon, Wolfe, Harris, and Harris’ mistress
(Shantel Cottew) frequented bars and clubs in Chicago
and spent the night at the Peninsula Hotel. They flew
first class on trips to Puerto Rico and Las Vegas, and rode
in limousines and party buses. Harris, whose salary was
approximately $70,000, paid for everything. Examples of
his expenses during the summer of 2010 include the
following: $800 in one night for Jäger bomb shots;5 $10,000
a month for his mistress’ rent in Ogden Dunes, Indiana;
$2,000 for Gurgon to play a dice game; $2,000 for
Gurgon’s mortgage; $14,800 (in $100 bills) for a down
payment on a 2010 Chevrolet Tahoe; $18,000 for a 2007
Ford Mustang; and “thousands of dollars” for Wolfe’s
sister Deanna’s wedding.
4
At some point in time, JPMorgan Chase purchased Henry
Bath and, therefore, was the owner of the copper stolen during
the scheme. As discussed at oral argument, this is the reason
for the “bank theft” count.
5
A Jäger bomb is a cocktail made by dropping a shot (1.5
ounces) of the alcoholic beverage Jägermeister into a pint
glass containing half a can of the caffeinated energy drink
Red Bull.
No. 11-3281 9
Gurgon also described what she knew about “the busi-
ness.” 6 She said Wolfe told her that Harris was the leader
and he was a partner, though he was later demoted and
called a “soldier” for messing up. When discussing the
time period after the first audit, Gurgon said that Wolfe
began working “really hard” during the midnight hours.
She then described how, after a night out drinking, Wolfe
told her that Henry Bath would find out what was missing
and that he could get in a lot of trouble. Gurgon testified
that Wolfe described the plan for Harris to take all the
blame and to “go big or go home” before the second audit.
Additionally, Gurgon said that, after Wolfe was suspended
from his job with KTN, he spoke to her about his meeting
with a lawyer and having nothing to worry about because
he was not in charge of the operation. For Wolfe’s role in
the business, Gurgon said that Harris agreed to match
whatever payment Wolfe received from KTN.7 Gurgon also
said that Wolfe, Harris, and Nick Chorak—another
KTN employee at the Gary warehouse—were the only
people who received direct compensation from the
copper theft.
6
Gurgon testified that Wolfe, Harris, and Harris’ mistress
referred to whatever scheme or illegitimate work they were
involved in at the Gary warehouse as “the business.”
7
Harris paid Wolfe approximately $310 to $350 per week in
addition to Wolfe’s KTN paycheck. Wolfe claimed Harris
offered to pay him this amount in order to entice him to work
at the Gary warehouse, despite the low hourly wage, after
graduating from high school in 2008.
10 No. 11-3281
The Government also played a surveillance video
from the Gary warehouse taken on August 23, 2010, at
approximately 3:45 a.m. The video showed two trucks
being loaded and an individual walking along the edge
of the loading dock. Four witnesses for the Government
testified that Wolfe was more than likely the man in
the video; one Government witness said he could not
identify the man. Wolfe was unable to tell whether he
was the disputed man in the video, stating, “I— I don’t
know. I don’t know if it was me. I can’t make a—I don’t
know.” This was a central issue because Wolfe did not
punch in until 4:00 a.m.8 Additionally, the video did
not show any copper in the trucks; it only showed
dunnage in the back.9
During closing argument, the Government lawyer
argued that Wolfe was a knowing participant of the
scheme from the beginning and his testimony was not
to be trusted. The prosecutor supported this contention
by highlighting the fact that Wolfe would not even
identify himself on the video.
8
KTN maintained a timekeeping system to record its em-
ployee’s arrival and departure times at the Gary warehouse.
Some employees, including Wolfe, were required to punch
in; Harris was not.
9
Wolfe also instructed Olds and Morales to load dunnage—i.e.,
waste-like cardboard, broken bands, or old pallets—onto the
trucks and around the copper bundles to keep the bundles
from moving during transport. Olds and Morales thought
this was out of the ordinary given the weight of the bundles.
No. 11-3281 11
The jury convicted Wolfe on both counts.
At Wolfe’s sentencing hearing on September 29, 2011,
the district court accepted the Presentence Investigation
Report (“PSR”) over Wolfe’s objection and sentenced
Wolfe to eighty-eight months’ imprisonment on each
count, to be served concurrently, followed by concurrent
three-year terms of supervised release. Restitution in
the amount of $3,028,011.29 was also imposed.
II. DISCUSSION
Wolfe challenges statements made by the prosecutor
during his closing argument, the district court’s deter-
mination of the victim loss amount attributed to him,
and the district court’s restitution order. We address
each challenge in turn.
A. Closing Argument
Wolfe claims two categories of improper remarks
during the Government’s closing argument denied him
a fair trial: (1) credibility-vouching for the Government’s
witness, Gurgon; and (2) misstating trial testimony.
These statements were not objected to at trial, so our
review is limited to plain error.
A review of comments by a prosecutor involves a two-
part inquiry. First, we consider whether the challenged
remark was improper, and second, whether the remark
deprived the defendant of a fair trial. United States
v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011). We
12 No. 11-3281
consider five factors to determine whether the remarks
prejudiced the defendant: “(1) the nature and seriousness
of the misconduct; (2) the extent to which the comments
were invited by the defense; (3) the extent to which
any prejudice was ameliorated by the court’s instruction
to the jury; (4) the defense’s opportunity to counter
any prejudice; and (5) the weight of the evidence sup-
porting the conviction.” United States v. Adams, 628 F.3d
407, 418-19 (7th Cir. 2010). The plain error review
requires Wolfe to demonstrate that the trial’s outcome
would have been different absent the prosecutor’s re-
marks. Wolfe faces an uphill battle in making this chal-
lenge as improper statements during closing argu-
ment rarely constitute reversible error. United States
v. Nunez, 532 F.3d 645, 654 (7th Cir. 2008); United States v.
Anderson, 303 F.3d 847, 854 (7th Cir. 2002).
1. Credibility Vouching Comments
We have recognized two types of impermissible vouch-
ing: “a prosecutor may not express her personal belief
in the truthfulness of a witness, and a prosecutor may
not imply that facts not before the jury lend a witness
credibility.” United States v. Alviar, 573 F.3d 526, 542
(7th Cir. 2009). A prosecutor may, however, comment on
a witness’ credibility as long as “the comment reflects
reasonable inferences from the evidence adduced at
trial rather than personal opinion.” Nunez, 532 F.3d at 654(quotations omitted). Wolfe identifies three examples
of improper vouching, which we now consider.
No. 11-3281 13
Wolfe’s first challenge is to the following remark:
I think [Ms. Gurgon] was—and I think you would agree
with me, hopefully you’ll agree with me, one of the clear-
est, sharpest witnesses on trial. Obviously she’s a
very bright person. (emphasis added).
The Government acknowledges that vouching occurs
when a prosecutor expresses his own personal belief
regarding a witness’ credibility. That is exactly what we
have here. In fact, it is telling that the Government never
even mentions in its brief the first part of the quote;
it only mentions the “one of the clearest, sharpest wit-
nesses on trial” portion. But we still must consider
whether the improper statement affected the fairness
of the trial overall, and if so, whether the outcome
would have been different but for the remark.
We believe that, at worst, the prosecutor’s comment
that he hopes the jury will agree with his assessment of
Gurgon’s testimony was “borderline” inappropriate. See
United States v. McMath, 559 F.3d 657, 667 (7th Cir.
2009) (concluding that the prosecutor’s comment that
the police officers were “ ‘really credible,’ while tech-
nically improper vouching, also seem[ed] fairly inno-
cuous in context.”). Here, the prosecutor immediately
followed his comment with a reference to Gurgon’s
trial testimony: “On cross examination, when [defense
counsel] asked her about the double life, she actually
said, you know, it wasn’t just a double life; it was a triple
life. It was the life with me, the life with Ms. Yaw and
then his life at the warehouse.” Gurgon also testified at
length and in detail about the summer of 2010 with
14 No. 11-3281
Wolfe and Harris, in addition to what Wolfe told her
about the business. In short, the prosecutor should not
have injected his own personal beliefs into the trial, but
the evidence supported his characterization and this
misstep in the context of the entire case does not sup-
port a finding that Wolfe was denied a fair trial. A
full discussion of the relevant factors for prejudice
is unnecessary.
Wolfe’s next challenge is to the following statement
in which the prosecutor characterized Gurgon as an
innocent bystander of the scheme whose testimony
should be given more weight:
And unlike Mr. Morales, and unlike Craig Olds, and
unlike Noel Santos, Ms. Gurgon has no reason to
shade the truth in this case or to shade her testi-
mony. She doesn’t have to worry about getting
charged with anything. She was working—she
wasn’t working at KTN. She wasn’t involved in this.
Wolfe contends these statements were improper be-
cause the Government was implying that it had inde-
pendently investigated Gurgon’s role in the copper theft
and cleared her of any wrongdoing, neither of which
was a fact in evidence, and we agree. The evidence pre-
sented at trial does not support an inference that Gurgon
was entirely guilt-free because she did not work at
KTN—e.g., testimony demonstrated that she benefitted
from the crime’s financial fruits—but again, this does
not end the inquiry.
All of the relevant factors except factor number two
tip the scale in favor of a finding that Wolfe was not
prejudiced by the remark. Credibility was a focus of the
No. 11-3281 15
trial, but whether Gurgon was criminally involved in the
scheme did not make her testimony any more or less
believable because she was not testifying pursuant to
any agreement with the Government. She had no
extra incentive to testify a certain way. See United States
v. Clarke, 227 F.3d 874, 885 (7th Cir. 2000) (describing
how both sides may argue the competing inferences
resulting from a witness testifying pursuant to a plea
agreement). The prosecutor’s comments were neither
serious nor substantial mistakes.
Moreover, Wolfe had an opportunity to respond to
the remark during his closing argument (the Govern-
ment did not reference it during its rebuttal), and the
district court instructed the jury before and after
closing arguments that the attorneys’ statements were
not to be taken as evidence. (There was no instruction
immediately following the remark because Wolfe did
not contemporaneously object at trial.)
Lastly, the evidence supporting the conviction was
more than sufficient. Gurgon’s testimony was no doubt
important, but the testimony of the other witnesses—
namely, Olds and Morales—firmly establishes Wolfe’s
knowledge of and participation in the scheme. They
both described taking orders from Wolfe and being
told not to question him about the copper. Morales addi-
tionally described Wolfe as indicating a guilty conscience
once KTN began to investigate the missing copper, testi-
fying that Wolfe said, “We’re screwed,” and, “[W]e
need to get our stories together and make sure we are
doing the same thing, that we were doing our jobs.”
16 No. 11-3281
In short, we are not persuaded that Wolfe was prej-
udiced by the remark, even when considered with the
first challenged statement.
Wolfe’s third challenge is to the Government’s descrip-
tion of Gurgon’s memory:
And you heard [Gurgon] say she’s got no hard
feelings against the defendant despite what hap-
pened in their relationship. Her kids still ask about
him. She obviously has a memory for detail.
These remarks lack any indicia of impermissibility, as
the prosecutor made them shortly after his description
of Gurgon’s testimony explaining Wolfe’s triple life
(discussed above). That “triple life” comment alone was
sufficient to support the inference that Gurgon had a
memory for detail. See Nunez, 532 F.3d at 654. Wolfe
nevertheless directs our attention to United States v.
Francis, 170 F.3d 546 (6th Cir. 1999), to avoid this conclu-
sion. Id. at 552 (concluding that the prosecutor’s comments
about the defendant’s credibility were impermissible
because the prosecutor did not provide evidentiary
examples supporting the inference). He contends
the sentence about Gurgon’s kids does not support the
“more general, powerful statement” that Gurgon has a
memory for detail. We do not read the rule regarding the
use of trial evidence to support a closing argument charac-
terization as requiring an attorney to make “bookend”
comments. An inference made during closing argument
need not always be introduced, nor immediately
followed, by a direct reference to the trial record. See
Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008) (“At-
No. 11-3281 17
torneys have more leeway in closing arguments to
suggest inferences based on the evidence, highlight
weaknesses in the opponent’s case, and emphasize the
strengths in their own case.”). References to evidence
supporting an inference are sufficient if they are made
contemporaneously; that occurred here.
2. Trial Testimony Comments
Misstatement of evidence may be improper prosecu-
torial conduct. See United States v. Badger, 983 F.2d 1443,
1450-51 (7th Cir. 1993). When discussing the video at
trial and why Wolfe would not admit he is in the video,
the prosecution explained that “all the other witnesses”
identified the man on the video as Wolfe. Wolfe correctly
points out this was a misstatement of the evidence:
Titsworth, a truck driver who transported the stolen
copper on a few occasions, testified that he could not
positively identify the man at issue in the video. The
Government argues in response that it did not misstate
the evidence because, “[n]otwithstanding Titsworth,
every government witness who could identify the
first individual shown in the video testified that it
was Wolfe.” We interpret this clarification as a conces-
sion that the prosecutor’s remark was indeed a misstate-
ment of the evidence.
Again, however, Wolfe is unable to demonstrate that
he was prejudiced by the prosecutor’s remark. The only
witness familiar with Wolfe’s appearance who could not
conclusively identify Wolfe in the video was Wolfe
himself. The four Government witnesses who identified
18 No. 11-3281
Wolfe in the video were his boss (Vingerhoets), his
co-workers (Olds and Morales), and his girlfriend
(Gurgon)—i.e., the four Government witnesses who
knew Wolfe well. It is not all that surprising that
Titsworth, who testified that he had only met Wolfe on
one prior occasion and incorrectly thought Wolfe’s
first name was Justin, could not identify who was in
the video. The Government did not take a “No” and
turn it into a “Yes;” it merely failed to mention the unfa-
miliar witness who could not identify the man in the
video. Even Wolfe’s counsel conceded in his closing
argument, “And it probably is him [in the video].” We
do not believe that the remark justifies a new trial.
B. Victim Loss Amount
The district court found the victim loss amount attribut-
able to Wolfe to be $2,947,348. U.S.S.G § 2B1.1(b)(1)(J) calls
for an 18-level increase if the victim loss is between
$2,500,000 and $7,000,000, so Wolfe’s offense level cal-
culation was increased 18 levels. Wolfe claims the victim
loss calculation was improper because, he says, the evi-
dence did not support a calculation above $2,500,000.
Therefore, his offense level should have been 2 levels
lower. Specifically, Wolfe contends that he was unaware
of the copper theft in 2009, that the value of the copper
stolen in 2010 is likely $2,500,000 or less, and that he
only loaded four trucks. We review the challenged victim
loss calculation for clear error. United States v. Reese,
666 F.3d 1007, 1021 (7th Cir. 2012).
No. 11-3281 19
The Government called Olds as a witness at the sen-
tencing hearing. Olds testified that during the 2010 sum-
mer, copper was loaded, at a minimum, on fifteen
to eighteen trucks. 1 0 Each truck was believed to transport
seven bundles of copper, with each bundle weighing
approximately 6,500 pounds.1 1 Based on these numbers,
approximately 370 metric tons of copper were stolen
from the KTN warehouse during the 2010 summer.
The district court found this testimony credible, as well
as the testimony that all of the truck loading was done
at Wolfe’s direction. Wolfe contends this was improper
because: (1) Olds’ testimony was contested (other testi-
mony could be interpreted to show 40 metric tons was
stolen in 2009 and Olds said the total number of metric
tons stolen during the 2010 summer was 390); (2) the
district court relied on information from Harris (who
even the Government acknowledged was not credible);
(3) and the district court failed to consider Wolfe’s inter-
pretation of the record.
We decline to disturb the district court’s credibility
determinations in this matter. See United States v.
Smith, 576 F.3d 681, 687 (7th Cir. 2009) (“[W]e do not
‘second-guess the trial judge’s credibility determina-
tions.’ ” (quoting United States v. French, 291 F.3d 945,
951 (7th Cir. 2002))).
10
Olds described one additional occasion when Wolfe and
Harris personally loaded three trucks, but he could not see
what they were loading onto the trucks.
11
Six thousand five hundred pounds is equal to approximately
2.948 metric tons.
20 No. 11-3281
Furthermore, it did not matter how many trucks
Wolfe personally loaded. Section 1B1.3(a)(1)(B) provides
that a defendant is accountable for others’ conduct that
is in furtherance of the criminal activity and reasonably
foreseeable. See United States v. Sheneman, 682 F.3d 623,
631 (7th Cir. 2012). And regardless of how much copper
was stolen in December 2009, the district court deter-
mined Wolfe was a knowing participant from the outset.
The evidence was sufficient to support a conclusion
that $2,947,348 of copper (391.941 metric tons) was
stolen during the entire copper theft scheme and Wolfe
was a knowing participant from the beginning. The
losses were reasonably foreseeable to Wolfe, and the
district court acted reasonably when it accepted the
PSR’s victim loss calculation.
C. Restitution
The district court imposed a restitution order totaling
$3,028,011.29. Wolfe challenges this amount on the
ground that it was not supported by the jury’s factual
findings, a violation of the Sixth Amendment under
Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically,
he contends that the recent Supreme Court decision in
Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct.
2344 (2012), first, requires us to overturn our long-
standing jurisprudence that restitution is not a criminal
penalty, and second, mandates that all restitution
amounts be supported by the jury’s verdict.
A discussion of the rule of Apprendi and the Southern
Union decision is necessary to give context to Wolfe’s
No. 11-3281 21
claims. Apprendi stands for the proposition that, “[o]ther
than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
“Statutory maximum” has been defined as “the maxi-
mum sentence a judge can impose without additional
jury findings.” United States v. Seymour, 519 F.3d 700,
709 (7th Cir. 2008) (citing Blakely v. Washington, 542 U.S.
296, 303-04 (2004)). Other sentencing facts can be found
by the district court using a preponderance of the
evidence standard. United States v. Kriegler, 628 F.3d
857, 863 (7th Cir. 2010). The recent trend, in order
to circumvent later constitutional concerns, has been to
submit more facts to the jury. See United States v. Booker,
543 U.S. 220, 277-78 (2005) (Stevens, J., dissenting) (“In
many cases, prosecutors could avoid an [Apprendi]
problem simply by alleging in the indictment the facts
necessary to reach the chosen Guidelines sentence.”).
The Supreme Court continued this trend in Southern
Union. A jury convicted Southern Union, a natural gas
distributor, on one count of violating the Resource Con-
servation and Recovery Act of 1976, which allowed for
the imposition of a fine not more than $50,000 per
day of violating the Act. Southern Union, 132 S. Ct. at
2349. The probation office determined Southern Union
had violated the Act for 762 days, so a maximum fine
of $38.1 million was appropriate. Id. The district court
imposed a $6 million fine, plus a “community service
obligatio[n]” of $12 million. Id. Southern Union argued
that Apprendi applied to criminal fines, and because
22 No. 11-3281
the jury was only required to find a violation for one
day (the jury verdict form only listed the violation’s
start date), the district court’s imposition of a fine
greater than the $50,000 single-day penalty required
extra fact-finding in violation of Apprendi. Id. The Gov-
ernment contended that Apprendi did not apply to
criminal fines. Id. The U.S. Court of Appeals for the
First Circuit accepted the Government’s argument and
upheld the fine. Id.The Supreme Court reversed, holding that “the rule
of Apprendi applies to the imposition of criminal fines.”
Id. at 2357. The Court stated that it had never dis-
tinguished between types of punishments—e.g., sen-
tences, penalties, or punishments—and “[w]here a fine
is substantial enough to trigger a party’s [Sixth Amend-
ment jury trial right], Apprendi applies in full.” Id. at 2351-
52. In response to the Government’s policy concerns,
the Court concluded that applying Apprendi to criminal
fines was simply an expected extension of the doctrine.
Id. at 2357.
We review an Apprendi challenge de novo. Seymour,
519 F.3d at 709. However, Wolfe failed to object to the
restitution order on Apprendi grounds in the district
court, so the Government argues we should review his
argument for plain error. See United States v. Fluker,
Nos. 11-1013, 11-3008 & 11-3082, 2012 U.S. App. LEXIS
22219, at *34 (7th Cir. Oct. 26 2012) (stating that we
review a sentencing challenge for plain error if it was not
made in the district court). Wolfe points out, and a
review of our case law demonstrates, a disputed question
No. 11-3281 23
as to which standard should be applied to an Apprendi
challenge if the issue was not raised in the district court.
Citing United States v. Kamoga, 177 F.3d 617, 622 n.5 (7th
Cir. 1999), Wolfe contends we should apply a de novo
review because the question before us is purely legal—i.e.,
whether restitution is a criminal penalty, subject to
Apprendi.
An Apprendi challenge is reviewed for plain error if it
was not made in the district court.1 2 See United States v.
Hernandez, 330 F.3d 964, 979 (7th Cir. 2003). Accordingly,
we review Wolfe’s Apprendi argument for plain error.
Now to the merits of Wolfe’s argument:
Wolfe argues that his restitution order is similar to the
criminal fine in Southern Union because the order is a “life-
long payment burden.” Yet, the only way Southern
Union may affect the outcome of this case is if we first
conclude restitution is a criminal penalty. (If so, the
issue becomes whether Southern Union’s holding that
Apprendi applies to criminal fines should extend to
another type of criminal penalty: restitution.) Reaching
12
To the extent Wolfe believes that we should create an excep-
tion to this rule because of the Government’s contention that
a legal argument on appeal based on a subsequent Supreme
Court case can never present a “clear or obvious” error, we
do not need to decide this issue because the result here is the
same regardless of which standard of review is applied. See
United States v. Boden, 854 F.2d 983, 990 n.2 (7th Cir. 1988)
(stating that “[i]n almost all cases, including this one, the
result will be the same under any standard”).
24 No. 11-3281
such a conclusion, however, would be in direct opposi-
tion to this Circuit’s well-established precedent that
restitution is not a criminal penalty. See United States
v. Bonner, 522 F.3d 804, 807 (7th Cir. 2008); see also
United States v. LaGrou Distrib. Sys., Inc., 466 F.3d 585,
593 (7th Cir. 2006) (“We reiterate: restitution is not a
penalty for a crime for Apprendi purposes since restitu-
tion for harm done is a classic civil remedy that is ad-
ministered for convenience by the courts that have
entered criminal convictions.” (internal quotation marks
omitted)). Wolfe admitted this at oral argument and
conceded that we would have to overrule our precedent
to find in his favor.
Having examined our sister circuits who have
addressed whether restitution is civil or criminal in
nature, we find ourselves in the minority. Only the
Eighth and Tenth Circuits, like us, have found restitution
to be civil in nature. See United States v. Millot, 433 F.3d
1057, 1062 (8th Cir. 2006) (stating that restitution orders
“are not in the nature of a criminal penalty.” (quoting
United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005)));
United States v. Nichols, 169 F.3d 1255, 1279-80 (10th Cir.
1999) (stating that the purpose of restitution under
the Victim Witness Protection Act “is not to punish de-
fendants or provide a windfall for crime victims but
rather to ensure that victims, to the greatest extent possi-
ble, are made whole for their losses.” (quoting United
States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir. 1993))).
But a “compelling reason” is required to overrule our
Circuit’s precedent. United States v. Kendrick, 647 F.3d 732,
No. 11-3281 25
734 (7th Cir. 2011). Being in the minority is not enough.
This is true even if the trend is against us. See Patel v.
Holder, 563 F.3d 565, 569-71 (7th Cir. 2009) (Ripple, J.,
concurring) (agreeing with the court’s judgment because
it was based on this Circuit’s precedent but writing
separately to discuss how our interpretation of the
statute “puts us on the distinct minority side of an
intercircuit split”); but see Russ v. Watts, 414 F.3d 783,
788 (7th Cir. 2005) (describing why we may overturn our
Circuit precedent if no other circuit accepts it (quoting
United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995))).
Wolfe’s only other arguments as to why we should treat
restitution as a criminal penalty are that the Supreme
Court referred to restitution as a “criminal punishment”
in Pasquantino v. United States, 544 U.S. 349, 365 (2005),
the restitution order is a “significant infringement
on [his] freedom,” and Apprendi should be “extended
broadly.”
We have already rejected the Pasquantino argument,
so that argument is unavailing. See Bonner, 522 F.3d at
807. Likewise, whether a court judgment infringes
upon someone’s life does not make the judgment inher-
ently criminal. For example, a defendant who is found
liable in a civil tort case could also be on the hook for
a significant damage award. See, e.g., Kimberlin v. DeLong,
637 N.E.2d 121, 129 (Ind. 1994) (upholding a $1,610,000
jury verdict against the defendant in an intentional tort
case). That type of award would surely infringe upon
an individual’s financial freedom, but no one would
argue that the damage award, imposed under the
same preponderance of the evidence standard Wolfe
26 No. 11-3281
essentially contests, invokes any Sixth Amendment con-
cerns. And the degree to which Apprendi is extended
has little value when answering the initial question
before us: whether restitution is a criminal penalty. As
we stated, Southern Union and the scope of Apprendi
only come into consideration if we first conclude resti-
tution is a criminal penalty. We decline to reach such
a conclusion.
Wolfe has not provided us with a compelling reason
as to why the holding in Southern Union—or this case
in general— should be used as the vehicle to overturn
our long-standing Circuit precedent that restitution
is not a criminal penalty. The district court’s restitu-
tion order was not required to be supported by the
jury’s fact-finding, and therefore, it did not violate
Wolfe’s Sixth Amendment rights.
III. CONCLUSION
We A FFIRM the judgment of the district court for the
reasons discussed above.
12-5-12