United States v. Sushil Sheth ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2741
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SUSHIL A. SHETH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:09-cr-00069-1 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED JANUARY 16, 2019 — DECIDED MAY 13, 2019
____________________
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Dr. Sushil Sheth amassed signifi-
cant wealth as a cardiologist, but, as he later admitted in a plea
agreement, he did so in a scheme to overbill government and
private insurers by approximately $13 million. In his plea
agreement he agreed to forfeit $13 million in assets as a con-
dition of his plea. The United States, in turn, allowed that it
would apply the proceeds of the forfeited property to any res-
titution judgment resulting from his conviction. Sheth now
2 No. 17-2741
disputes that the United States gave him the appropriate
credit for some of the forfeited assets. We agree with Sheth
that he did not receive the proper credit for certain bank ac-
count funds, but affirm the district court’s decision as to the
valuation of the real property he contests.
I.
The specifics of Sheth’s crimes are not relevant to this ap-
peal other than that they resulted in a loss to Medicare of
about $9 million in payments for services Sheth did not render
between 2002 and 2007, and a loss of about $4 million to pri-
vate healthcare insurers for the same conduct.1 After the gov-
ernment detected the fraud, in June 2007, it initiated an ad-
ministrative proceeding in which the United States seized
funds from four Harris Bank accounts that the government
believed were the proceeds of Sheth’s fraud.2 Harris Bank re-
leased those funds to the United States Marshal Service on
September 11, 2007. Although the district court opinion did
1 Sheth’s conduct was also the subject of a qui tam civil action filed under
the False Claims Act, 31 U.S.C. §§ 3729–3733, see United States et. al. v.
Sushil A. Sheth, M.D., No. 1:06-cv-02191 (N.D. Ill., filed April 19, 2006), and
for which there was a $20 million civil judgment. This action is not rele-
vant here but played some role in the first appeal of Sheth’s criminal case,
particularly in the discussion of restitution, as the $12.37 million criminal
judgment was a subset of the losses in the $20 million civil judgment. See
United States v. Sheth, 759 F.3d 711, 712–13 (7th Cir. 2014).
2 There was one Harris Bank investment account that the government later
relinquished to Sheth’s wife, Anita Sheth, and to the Sheths’ children
which is not relevant to this matter. Anita Sheth successfully petitioned
the court, asserting that the funds in that account belonged to her and that
she added her husband’s name to the account solely for estate-planning
purposes. When we refer to the Harris Bank accounts, we refer only to the
remaining accounts which are at issue in this case.
No. 17-2741 3
not explicitly so state, the parties do not dispute that the Mar-
shals Service held those seized assets in an interest-bearing
account.
Meanwhile, in January 2009, the government charged
Sheth with healthcare fraud in violation of 18 U.S.C. § 1347.
The information sought forfeiture of certain real property,
personal property, and funds alleged to be the proceeds of the
fraud scheme. Sheth pleaded guilty in August 2009 and
agreed to forfeit $13 million in assets. On the other side of the
plea agreement, the United States agreed to apply the pro-
ceeds of the forfeited property to any restitution agreement.
Restitution is a loss-based penalty which seeks to compensate
a victim for losses it has incurred, while forfeiture seeks to
rectify the ill-gotten gains of the defendant. See United States
v. Swanson, 394 F.3d 520, 527–28 (7th Cir. 2005).3
In this case the government entered into a plea agreement
with Sheth which stated:
Defendant further understands that while for-
feiture of property is not typically treated as sat-
isfaction of any fine, restitution, cost of impris-
onment, or any other penalty the Court may im-
pose, it is agreed by the parties that any pay-
ments made in satisfaction of the forfeiture
judgment shall be credited to any outstanding
restitution judgment.
3 For example, one might imagine a scenario in which a defendant stole a
painting worth $1 million but sold it on the black market for $5,000. The
loss to the owner of the painting is $1 million dollars for which she may
be paid restitution (if the painting is never recovered), although the de-
fendant can only forfeit the $5,000.
4 No. 17-2741
Plea Agreement, R. 35 at 15. In short, the government agreed
to apply the forfeited property to whatever Sheth owed as res-
titution for his crime. The district court then sentenced Sheth
to 60 months’ imprisonment and found him liable for
$12,376,310 in restitution to Medicare and the private
healthcare insurers.
On August 11, 2010, the court entered a preliminary for-
feiture order stating that “all right, title, and interest of de-
fendant Sushil Sheth in the following [enumerated] property
is hereby forfeit[ed] to the United States of America for dispo-
sition according to law.” R. 66 at 5. Between the date that the
government seized the Harris Bank funds and the time those
funds were forfeited in 2010, they had accrued $225,000 in in-
terest. Government Reply Brief in Support of its Motion to
Ratify Turnover Order, R. 270 at 5 (the government conced-
ing, “[t]he United States tendered discovery to Sheth showing
that the Marshals Service calculated such interest to be about
$225,000.”). That interest was forfeited and turned over to the
government along with the principal. In this appeal, Sheth ar-
gues that the government failed to give him credit toward res-
titution for this approximately $225,000 in interest that had
accrued on the $6.5 million in assets seized from the four Har-
ris Bank accounts and turned over to United States coffers.
Sheth also contests the value credited to him for his pri-
mary residence in Burr Ridge, Illinois. Sheth owned two par-
cels of real estate in Burr Ridge. The first, and the subject of
this appeal, was the Sheths’ residence on Crown Court (“the
residence”). The other, not contested here, was an apartment
also located in Burr Ridge. After the court issued the prelimi-
nary order of forfeiture, Sheth’s then wife, Anita Sheth, and
their children, filed a petition in 2011, claiming some of the
No. 17-2741 5
forfeited property as their own, including these two parcels
of real estate. During the 2011 discussions with Anita Sheth
about this contested property, the United States erred in as-
sessing the value of the family residence. The United States
relied on a 2010 appraisal that the Marshals Service obtained
in connection with the forfeiture proceedings which showed
that the property was worth $1,086,000 and was encumbered
by a $1,559,500 mortgage—in other words, the property was
underwater and worthless to the government. The United
States therefore relinquished the property to Anita Sheth. It
turned out, however, that the government was mistaken
about the mortgage indebtedness on the property and the res-
idence, in fact, held significant equity.
The dispute over the value of these assets and others came
to a head in September 2012, when the government filed a
motion attesting that Sheth was $1,699,941 shy of fulfilling his
restitution order and asking the court to issue turnover orders
for five retirement accounts worth a total of $300,738 (The
government claimed that the forfeited assets satisfied
$10,709,309 of the $12,376,301 judgment).4 See Motion to Rat-
ify Turnover Order, R. 259. Sheth objected, arguing that the
assets in the government’s possession were sufficient to sat-
isfy the restitution order. The district court ruled for the gov-
ernment, and Sheth appealed. This court held that whether
the United States gave Sheth all credits he was due “is a fac-
tual dispute that the district court, after allowing for discov-
ery, should have resolved before ruling on the turnover
4 The numbers do not add up exactly, because the unpaid judgment was
always accruing interest. At the time of the motion to ratify turnover or-
ders, on October 10, 2014, Sheth owed approximately $33,000 in interest.
See Motion to Ratify Turnover Order, R. 259 at 2.
6 No. 17-2741
motion,” allowing Sheth the opportunity for “discovery and
an evidentiary hearing when he asserted a defense to the gov-
ernment’s collection effort.” United States v. Sheth, 759 F.3d
711, 718 (7th Cir. 2014). Notably, we held the government
firmly to its promise in the plea agreement that “any pay-
ments made in satisfaction of the forfeiture judgment shall be
credited to any outstanding restitution judgment.” Id. at 717
(quoting plea agreement) (emphasis in opinion). We re-
manded the case to the district court for these purposes.
It was during these hearings that Sheth contended that he
was entitled to the interest earned on the Harris Bank ac-
counts from the time of seizure to forfeiture. The United States
stipulated that if Sheth was entitled to credit, the interest was
worth $225,000, but argued that he was not so entitled. The
district court agreed.
Sheth also asserted that he was entitled to credit for equity
in the Burr Ridge residence. During supplemental filings on
remand, Sheth informed the United States that the Sheths had
paid down $900,000 of the mortgage and, therefore, there was
significant equity in the home released to Anita Sheth. With
this new information at hand, the United States agreed to re-
evaluate the property and concluded that it had been mis-
taken about the outstanding amount of the mortgage indebt-
edness when it relinquished the property to Anita Sheth. If
the government had used the corrected mortgage indebted-
ness amount ($697,914) and a July 2010 estimate of the value
of the property ($1,086,000), the resulting equity in the house
would have been $388,086 and the estimated net equity, after
estimated costs of sale, $215,466.33. The government con-
cluded that the resolution of the error was to give Sheth
“credit for half the net equity of the property, relating back to
No. 17-2741 7
2011 and assuming a sale for its fully appraised value, with
reasonable closing costs, and the net proceeds divided with
Anita Sheth who had a half-interest in the property.” Govt’s
Supp. Brief in Support of its Motion to Ratify Turnover Order,
R. 294 at 4. The United States calculated that amount to be
$107,773. Sheth declined the offer.
At a hearing about how much credit Sheth should receive
for the residence, Sheth did not contest the appraisal value in
July 2010, but argued that the court instead should have used
the 2015 sale price when his former wife sold the property.
This would have given him a $510,000 credit rather than the
$107,733 he received. The government argued that the 2010
appraised value was the more appropriate date as it was
closer to when the United States relinquished the property to
Anita Sheth, or, if it had not relinquished the property, ap-
proximately when it would have sold the property. The court
agreed with the government. Sheth appeals both holdings.
II.
A. Interest on the Harris Bank accounts
The arguments have unnecessarily complicated a simple
contractual matter. A plea agreement is, of course, nothing
more than a contract between two parties—the defendant and
the government. United States v. Brown, 779 F.3d 486, 492 (7th
Cir. 2015). To oversimplify (for just a moment until we ad-
dress the details), we boil Sheth’s argument on this issue
down to its elements in the following hypothetical (hypothet-
ical A): Suppose the government suspected that a defendant
had committed a crime and seized his bank account contain-
ing $100 until such time as a court could make its final deter-
mination. In the meantime, the defendant and the
8 No. 17-2741
government entered into an agreement that stated as follows:
should the court find the defendant guilty and impose any
kind of financial penalty, the government will take whatever
is in that bank account at the time of forfeiture and apply it to
the financial penalty. At the time the court made the determi-
nation of guilt, imposed the financial penalty, and forfeited
the bank account to the government, the account had earned
interest and now contained $110. According to the terms of
the agreement, the government would take whatever was in
that account—now $110—and apply it to the financial penalty
imposed.
Sheth’s case is no different. The government has turned
the argument into one about whether it is required to pay in-
terest on seized funds. But that question is not presented on
these facts. The question is not whether the government must
keep forfeited funds in an interest-bearing account (or
whether the government is otherwise responsible for interest
on forfeited funds it holds). Rather, the question is whether
already-accrued interest that has been forfeited to the govern-
ment must be credited toward a restitution judgment where
the government previously has agreed to credit all forfeited
funds toward the restitution judgment. We need not decide
the broader issue because, in this case, the forfeited funds
were, in fact, in an interest-bearing account. Consequently, at
the time of forfeiture, there was approximately $225,000 more
in the account that had to be applied to the restitution
amount. The government, by its own agreement, was re-
quired to take whatever was in the account at the time of the
forfeiture and apply it to the amount that Sheth owed in fi-
nancial penalty.
No. 17-2741 9
The government’s primary argument is that because of the
doctrine of sovereign immunity, the United States is not re-
quired to pay interest, in the absence of a statute or an express
provision of a contract. Again, we need not address this asser-
tion one way or the other, as it is irrelevant to this case. To
understand the difference between the issue the government
argues and the facts of the current case, we compare the fol-
lowing hypothetical B to the one above: Suppose the govern-
ment suspected that a defendant had committed a crime and
seized $100 in cash until such time as a court could make its
determination of guilt or innocence. The agents representing
the United States took the $100 and placed it in a safe. In the
meantime, the defendant and the government entered into an
agreement that stated as follows: should the court find the de-
fendant guilty and impose any kind of financial penalty, the
government will take whatever cash it has seized and apply
it to the financial penalty. At the time the court made the de-
termination of guilt, imposed the financial penalty, and for-
feited the funds, the government had $100 in a safe that it was
required to put toward any financial penalty imposed. Pursu-
ant to the agreement, the government was not required to pay
interest.5 All of the government’s arguments are geared to-
ward the type of scenario in hypothetical B, but those argu-
ments simply do not address the facts presented in this case.
5 In reality, regulations and guidelines require that the government de-
posit seized assets into the Seized Asset Deposit Fund where it is held un-
til resolution of the forfeiture proceeding and then deposited in the Asset
Forfeiture Fund. See 28 C.F.R. § 8.5 (2012); U.S. Dept. of Justice, United
States Attorney’s Manual 9-111.600 (2018); U.S. Dept. of Justice, Office of
the Inspector General, Audit of the Assets Forfeiture Fund and Seized As-
set Deposit Fund Annual Financial Statements Fiscal Year 2018.
10 No. 17-2741
In this case, the plea agreement and forfeiture order gov-
ern the distribution of the interest. The government, by the
plain language of the plea agreement, agreed to take all for-
feited funds and apply them to any restitution amount. (Re-
call that the agreements stated, “it is agreed by the parties that
any payments made in satisfaction of the forfeiture judgment
shall be credited to any outstanding restitution judgment.”
Plea Agreement, R. 35 at 15. The order of forfeiture, relying
on the plea agreement between Sheth and the government,
states that “all right, title, and interest of defendant Sushil
Sheth in the” funds from the four Harris Bank accounts “is
hereby forfeit[ed] to the United States of America.” Prelimi-
nary Order of Forfeiture, R. 66 at 5. To put this all together
and summarize: (1) The parties agreed that “all right, title and
interest” in the Harris Bank funds at issue would be forfeited
to the government. (2) The parties agreed that any forfeited
funds would be applied to the restitution amount. Therefore,
(3) all of the money in the Harris Bank funds had to be applied
to the restitution amount. By the time the court ordered the
forfeiture and “all right, title, and interest” in those Harris
Bank funds was forfeited to and transferred to the United
States, those accounts included $225,000 in accrued interest
which had to be applied to the restitution amount.
Any other solution, of course, would not only violate the
agreements, but would be nonsensical. The government did
not, after all, return the $225,000 in interest to Sheth, or to Har-
ris Bank, or donate it to charity. It took that interest along with
the $6.5 million in principal and placed it into its own cof-
fers—coffers that it uses to pay restitution to victims of crime.6
6 The United States Marshals Service held the funds until July 2013 when
it turned those funds over to the Clerk of the Court for disbursement to
No. 17-2741 11
And that was the logical action. The government cites no au-
thority to state that it was entitled to keep the interest as some
kind of windfall. It was entitled to keep the interest because
the interest was forfeited along with the principal assets. The
usual and general rule is that any interest on an interpleaded
and deposited fund follows the principal and is to be allo-
cated to those who are ultimately to be the owners of that
principal.” Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449
U.S. 155, 162 (1980); See also Cerajeski v. Zoeller, 735 F.3d 577,
580 (7th Cir. 2013) (“If you own an apple tree, you own the
apples; and if you own a deposit account that pays interest,
you own the interest, whether or not state law calls interest
property.”); United States v. $277,000 U.S. Currency, 69 F.3d
1491, 1496 (9th Cir. 1995) (“If the government seized, for ex-
ample, a pregnant cow and was ultimately found not to be en-
titled to the cow after it had given birth, it could hardly be
contended that the government had fulfilled its duty by re-
turning the now-barren cow, but retaining the calf.”)
We also need not delve into the realm of what would have
happened to the interest if Sheth had been found not guilty at
trial and been entitled to have the accounts returned. We can
save that discussion for a case involving those facts. See
United States v. Rand Motors, 305 F.3d 770, 774 (7th Cir. 2002)
(“We will not consider whether in the abstract the United
States has some duty to pay interest on seized funds that are
later returned.”). What matters in these cases is the
the non-federal victims, and to the Department of Justice Debt Accounting
and Operations Group for disbursement to the government victims. The
Government’s Motion for an Order Directing the U.S. Marshals Service to
Release Funds to Partially Satisfy the Restitution Judgment, R. 199; Order,
R. 201.
12 No. 17-2741
contractual agreement between the parties. Id. And in this
case, the government agreed to take the forfeited funds and
credit them toward the restitution judgment. Those funds in-
cluded $225,000 in interest.
The error below appears to have resulted from the district
court’s misunderstanding about the nature of the funds asso-
ciated with the Harris Bank accounts. In the initial case below,
Sheth argued about miscalculations and inequities in the cal-
culation of many different assets. The specific details about
the Harris Bank accounts may have gotten lost in the fray in a
case where so many assets, accounts, and funds were at issue.
Below, Sheth simply had argued that he was “entitled to in-
terest earned on” the Harris Bank accounts “from 2007 until
2010.” Response to Govt’s Motion to Ratify Turnover Orders,
R. 266 at 1. The government maintained its refusal to credit
Sheth with interest on these accounts. It seems that it may not
have been clear to the district court that the interest on those
accounts already existed. The district court, in its opinion, did
not seem to be aware that the Harris Bank funds were being
held in an interest-bearing account. The district court judge
stated that she was “uncertain why the United States Marshal
Service would forgo interest on funds within its possession.”
D. Ct. Op. at 11 (R. 282 at 11). The court held that Sheth was
not entitled to credit for such interest because, the district
court explained, “there is no provision in the plea agreement
for paying Sheth post-seizure interest.” Id. at 12. The court
juxtaposed the Harris Bank accounts with other accounts that
had “in fact earned” interest—implying that the court thought
that these Harris Bank accounts had not. Id. (emphasis in orig-
inal).
No. 17-2741 13
The district court’s statement that “[t]here is no provision
in the plea agreement for paying Sheth post-seizure interest,”
(R. 282 at 12), demonstrates that it was considering facts not
relevant to resolution of the matter before it. The court seems
to be describing a hypothetical scenario C: Suppose the gov-
ernment suspected that a defendant had committed a crime
and seized $100 in cash until such time as a court could make
its determination of guilt or innocence. The agents represent-
ing the United States took the $100 and placed it in a safe. In
the meantime, the defendant and the government entered
into an agreement that stated as follows: should the court find
the defendant guilty and impose any kind of financial pen-
alty, the government will take whatever funds it seized and
apply it to the financial penalty. In the meantime, during the
pendency of the case, the government will hold the funds in an in-
terest-bearing account. According to the terms of the agree-
ment, the government would have been required to place the
$100 in an interest-bearing account, and, at the time of forfei-
ture, take whatever was in that account, interest and all—now
$110—and apply it to the financial penalty imposed. This is
the scenario that existed in United States v. Kingsley, 851 F.2d
16 (1st Cir. 1988), to which both parties turn. In Kingsley, the
district court specifically ordered the government to place the
funds in an interest-bearing account and the government
failed to do so. Id. at 18. The court in Kingsley noted that the
defendant had relied on the court’s order requiring interest
when entering his plea agreement, and therefore the court
held the government to the terms of its contractual agree-
ment. This case is not about resolving whether the govern-
ment was required by law or agreement to hold funds in an
interest-bearing account. It is undisputed that those funds
were indeed held in an interest-bearing account and earned
14 No. 17-2741
$225,000. Our analysis begins with a recognition of this fact
(one that the district court may have misunderstood) and
moves forward from there.
Once the proper facts are acknowledged, and extraneous
scenarios are omitted, the resolution is simple. The govern-
ment agreed to apply all of the forfeited funds in the Harris
Bank accounts to the restitution amount. That amount in-
cluded the already-earned interest. We need not consider
what would have occurred had the interest not been in an in-
terest-bearing account, or had the government been required
to return the assets, or any other scenario not associated with
the facts of this case. Sheth is merely asking the court to take
all of the money it received from the forfeited accounts, at the
time it was forfeited, and put it toward Sheth’s restitution
amount as was the agreement of the parties.
The district court’s misunderstanding that the funds had
not already earned interest (and one that is understandable
given the number of accounts and funds of which the court
had to keep track) is further highlighted by its differing treat-
ment of funds located in Oppenheimer, Bright Start, and First
Bank accounts. Those funds also earned interest between the
time they were first frozen by the government and the time
they were forfeited by court order, and the district court ap-
plied that earned interest to the amount of restitution.7 The
United States gave Sheth credit for the interest noting, “With
regard to these funds, Sheth was credited with whatever in-
terest accrued on those funds while at the respective third-
7 Rather than seize the funds in the Oppenheimer, Bright Start, and First
Bank accounts, on February 26, 2008, the government obtained a restrain-
ing order freezing those accounts pending resolution of the case.
No. 17-2741 15
party depository institution.” Government’s Memorandum
Supporting its Motion to Ratify Turnover Orders, R. 260 at 8.
Moreover, the district court, when explaining the discrepancy
between the handling of the interest for the Harris Account
funds and these other funds stated, “the government credited
Sheth with the interest in fact earned on the Oppenheimer,
Bright Start and First Bank accounts between 2007 and 2010
before they were actually turned over to the Marshals.” D. Ct.
at 12 (R. 282 at 12) (emphasis in original). The district court
seemed to think that the interest earned in the Oppenheimer,
Bright Start, and First Bank accounts could be applied to the
restitution amount because it had been “in fact earned,” but
that no interest could be applied for the Harris bank accounts
because the “United States Marshal service [had] forgo[ne] in-
terest” on those funds. Id. at 11. This was simply an oversight,
and one that is understandable given the complexity and
number of parts in play in this case. The Harris Bank funds
had earned interest just as the Oppenheimer, Bright Start, and
First Bank accounts had. This interest was forfeited to the gov-
ernment, just as it was for the Oppenheimer, Bright Start, and
First Bank accounts, and should have been applied to the res-
titution amount, just as it was for the other funds.
It is not entirely clear whether the district court’s error was
one of fact or law. Did the district court not know that the
Harris Bank accounts had earned interest? Or did the district
court make a legal error about when to value accounts—
which would ordinarily be at the date of the actual forfeiture
when the government takes possession of the funds, rather
than the date of the preliminary seizure. Title to forfeited
property relates back to the United States from the time of the
commission of the crime, but this reversion occurs only after
forfeiture is effected, which, in the criminal context, occurs
16 No. 17-2741
only after a conviction and determination that the assets were
the product of illicit activities. Kingsley, 851 F.2d at 19–20; see
also United States v. De Ortiz, 910 F.2d 376, 379–80 (7th Cir.
1990). In the meantime, seized property is in a kind of limbo—
belonging totally to neither the defendant nor the government
until the underlying criminal matter is finally concluded.
Kingsley, 851 F.2d at 20.
In this case, we need not decide if the error was factual or
legal. Under either standard of review, the district court’s de-
termination on this issue cannot stand. See United States v.
Adame-Hernandez, 763 F.3d 818, 827 (7th Cir. 2014) (The Court
of Appeals reviews the district court’s interpretation of a plea
agreement de novo.); Soc'y of Lloyd's v. Estate of McMurray, 274
F.3d 1133, 1135 (7th Cir. 2001) (The Court of Appeals reviews
the final disposition of a turnover order on questions of law
de novo.); United States v. Collins, 503 F.3d 616, 618 (7th Cir.
2007) (factual determinations about plea agreements, “like
factual determinations in general, should be reviewed for
clear error.”). The district court should have credited Sheth
for the interest earned on the Harris Bank funds
B. The Real Property
The resolution over the value of the real property on
Crown Court in Burr Ridge is also not inherently a complex
matter but muddied by a few errors and misunderstandings.
The first occurred when the United States erred in assessing
the value of the family residence. The United States failed to
include a $900,000 payment toward the mortgage when it cal-
culated the value of the residence. In other words, the govern-
ment initially presented to the court the value of the residence
as follows:
No. 17-2741 17
2010 appraised value $1,086,000
mortgage debt ($1,559,50)
Net equity ($473,000)
In reality, the value of the residence was as follows:
2010 appraised value $1,086,000
mortgage debt ($697,915)
costs and expenses ($172,619)
Net equity $215,466
During proceedings surrounding the turnover order, the
United States conceded its error and suggested that the ap-
propriate resolution was to give Sheth “credit for half the net
equity of the property, relating back to 2011 and assuming a
sale for its fully appraised value, with reasonable closing
costs, and the net proceeds divided with Anita Sheth who had
a half-interest in the property.” R. 294 at 8–9 (emphasis in
original). The United States calculated that amount to be half
of $215,466 or $107,773. Sheth declined the offer. The court
agreed with the government, stating that “Whatever the value
of it then [when it was conveyed to Mrs. Sheth] … net of the
mortgage obligation is the amount that should be properly—
half of that should be properly credited to Dr. Sheth. … I think
the way the government treated this property makes perfect
sense under the circumstances.” Tr. 8/21/17, R. 303 at 7.
At the turnover order hearing in the district court regard-
ing the amount of credit Sheth should receive for the resi-
dence, Sheth did not contest the accuracy of the 2010 ap-
praisal, but rather argued that the court should have used the
price the property fetched on the market in 2015 when his for-
mer wife sold the property for approximately $1.7 million.
This would have allowed him to claim a $510,000 credit rather
18 No. 17-2741
than the $107,733. The government argued that the 2010 ap-
praised value was the more appropriate date as it was closer
to when the United States relinquished the property to Anita
Sheth (only one year before the transfer, as opposed to four
years after), or, if it had not relinquished the property, ap-
proximately when it would have sold the property. The gov-
ernment argued that it would be inappropriate to look at the
value of the house four years later, after the real estate market
had recovered, and long after the United States would have
liquidated it.
On appeal, Sheth makes a different argument. Rather than
arguing that the court should have used the 2015 sale price,
he argues that the court should have used a 2011 valuation of
the property rather than a 2010 valuation. The property was
appraised in July 2010, and it was relinquished to Anita Sheth
in June 2011. Sheth is technically correct that the government
proposed giving Sheth “credit for half the net equity of the
property, relating back to 2011.” Govt’s Supp. Brief in Support
of its Motion to Ratify Turnover Orders, R. 294 at 8–9, 10 (em-
phasis ours). And the court agreed with the government’s
proposal that Sheth would get credit for half of the value of
the property when it was conveyed back to Anita Sheth. Tr.
8/21/17, R. 303 at 7.
There are two problems with Sheth’s argument on appeal.
First, Sheth never raised it in the district court. There he ar-
gued only that the court should have used the 2015 sale price.
This argument, therefore, has been forfeited.8 A party forfeits
8 Once again, see Sansone v. Brennan, 917 F.3d 975, 983 (7th Cir. 2019), for
a discussion of the difference between waiver and forfeiture, the latter of
which is at issue here.
No. 17-2741 19
an argument by failing to raise it below, or by raising it in a
perfunctory or general manner. Sansone v. Brennan, 917 F.3d
975, 983 (7th Cir. 2019).
Moreover, Sheth, who had the burden of proof, never of-
fered an appraised value of the residence in 2011. Sheth cites
the record to show that the mortgage indebtedness in July
2010 was $697,914 (R. 289-1 at 4); (R. 294 at 4); in December
2010 it was $690, 282 (R. 289-1 at 4); and it was only $667,933
as of August 2012. (R. 294 at 9). See Defendant-Appellant’s
Opening Brief at 33. Interestingly, even now Sheth does not
provide an accurate valuation for July 2011, when the prop-
erty was relinquished to Anita Sheth.
Even had Sheth not forfeited this argument nor dropped
the ball on pointing to evidence in the record of a 2011 valua-
tion, we would still not find error in the district court’s appli-
cation of the 2010 appraisal of the residence. The evaluation
of real property can be complicated. It is particularly compli-
cated in this case, because the government did not actually
have a chance to sell the property—the ultimate evidence of
what the property is worth. Instead, falsely believing that it
was underwater, it relinquished the property to Sheth’s for-
mer wife. This makes it difficult to ascertain at what date and
amount the court should have valued the property. The value
of the residence in 2010, when the government had it ap-
praised, was a reasonable estimate of its value one year later,
in 2011.
20 No. 17-2741
We remand to the district court so that it may consider the
value of the forfeited interest on the relevant Harris Bank ac-
counts as credit toward Sheth’s outstanding restitution judg-
ment. We affirm the district court’s holding as to the residence
on Crown Point in Burr Ridge.
AFFIRMED IN PART, REVERSED IN PART.