United States v. Swanson, David H.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1863
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. IP 01-83-CR-B/F—Sarah Evans Barker, Judge.
____________
ARGUED MAY 28, 2004—DECIDED JANUARY 7, 2005
____________
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted the defendant,
David H. Swanson, of wire fraud, money laundering, inter-
state transport of converted funds, and tax evasion stemming
from a complex scheme of financial manipulations through
which Swanson was able to siphon funds for his own per-
sonal use as he assisted large agricultural corporations in
their various acquisitions and investments. On appeal he
challenged the district court’s choice of sentencing guide-
lines as well as its calculations for amount of loss, restitution,
and forfeiture. After the parties submitted their initial briefs
to this court, two events altered the landscape of this appeal.
2 No. 03-1863
First, the government conceded that the district court used
the improper sentencing guidelines and second, the Supreme
Court accepted certiorari in two cases which question the
constitutionality of the current federal sentencing practices
allowing judges to enhance sentences based on factual
determinations made using the preponderance of the evi-
dence standard. United States v. Booker, 375 F.3d 508 (7th
Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004)
(No. 04-104) and United States v. Fanfan, No. 03-47, 2004
WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S.
Ct. 12 (U.S. Aug. 2, 2004) (No. 04-105). The parties sub-
mitted supplemental briefs as to the applicability of Booker
and Fanfan. Because we agree with both parties that the
district court used the improper guidelines, we remand the
case for resentencing under the proper guidelines and/or in
accordance with the forthcoming United States Supreme
Court decisions in Booker and Fanfan. We also remand for
new findings as to the proper amount of restitution and
forfeiture.
I.
David Swanson is a highly-educated businessman who,
between 1991 and 2001, held various executive positions at
midwestern businesses involved in agriculture. Swanson
also dabbled in his own business ventures, seeking to buy
and sell companies through various corporate enterprises
he created on his own. The government charged Swanson
with wire fraud, money laundering, interstate transport of
converted funds, and tax evasion stemming from schemes
wherein Swanson would convince a large corporation to ac-
quire another company, and then would, in short, skim
funds from the transaction for his own personal use.
The indictment provided a lengthy description of four
schemes, but alleged executions of the scheme related to only
two of these four episodes. The other two were included
primarily for context and background.
No. 03-1863 3
In the first scheme, Swanson, as a self-employed consul-
tant, approached Archer Daniels Midland (ADM) with the
idea of buying Central Soya Corporation—an entity for
which he had formerly served as CEO. Swanson billed ADM
for $1,358,000 for his work on the acquisition. The indict-
ment charged that this figure included requests for reim-
bursement of expenses that Swanson did not incur, including
a request for $278,000 to the consulting firm of Vickers &
Allen, an entity that had no formal existence at the time
and did not perform any work.
The second scheme involved Countrymark Cooperative,
Inc.’s acquisition of Buckeye Feed Mills, Inc. In 1995,
Swanson, through a company he formed, attempted to
purchase Buckeye. That initial negotiation failed for lack of
financing, but Swanson resurrected the deal by giving his
guarantee that he would be personally liable for a $100,000
penalty if the acquisition did not close within sixty days.
Shortly thereafter, Swanson accepted a position as chief
executive officer of Countrymark and convinced the
Countrymark board of directors to purchase Buckeye. The
indictment alleged that Swanson claimed and received
reimbursement expenses from Countrymark for expendi-
tures Swanson made during his personal efforts to acquire
Buckeye and that he again sought payment for services
Vickers &Allen did not actually perform.
After the completion of the Buckeye acquisition, Swanson
also convinced Countrymark’s board of directors to acquire
Malta Clayton, an agricultural feed business in Mexico—
the third scheme alleged in the indictment. Before the mat-
ter had been presented to the Countrymark board, however,
Swanson signed an agreement with Malta Clayton obligat-
ing Countrymark to purchase Malta Clayton via the Project
Explorer Mark II Corporation—an entity for which
Swanson was the sole director and one that, at the time,
had not been incorporated. Swanson initially informed the
4 No. 03-1863
board that Countrymark’s share of the acquisition costs
would be $5 million. Ultimately and through various routes,
Countrymark spent $25 million to purchase Malta Clayton
(another corporation, Growmark, contributed $10 million).
The actual acquisition cost of Malta Clayton was $31 million.
After the acquisition, $4 million dollars remained in Project
Explorer Mark II’s account, at the defendant’s sole disposal.
The government alleged that Swanson took $2 million for
his personal use. In addition, once again, Swanson submit-
ted invoices from Vickers & Allen.
Finally, in scheme four, the indictment alleged that
Swanson unlawfully requested and received reimbursement
for expenses he claimed to have incurred when Countrymark
sold a portion of its stock in Buckeye. Swanson took the
$400,000 facilitation fee generated by the sale and trans-
ferred it to a bank account under his exclusive control.
Swanson later told the Countrymark board that the $400,000
facilitation fee was being used for expenses on a new project
in New York City. When Countrymark attempted to re-
trieve the $400,000, they found that only $300,000 re-
mained. Swanson claimed that Countrymark owed him
$168,557.42 of the funds as reimbursement for various ex-
penses—$113,000 of which he had already received. He di-
rected the treasurer of Countrymark to deposit an addi-
tional $55,000 in his personal bank account to make up the
difference.
Although count 1 of the indictment described all four
schemes, the indictment alleged executions only of schemes
three and four—the Malta Clayton acquisition and
Countrymark’s sale of Buckeye stock. Counts two through
eight alleged the transportation of the stolen money from
scheme three—the Malta Clayton acquisition—across state
lines. Count 9 alleged that Swanson committed wire fraud
when he transferred $400,000 from Countrymark to an ac-
count he controlled during the commission of scheme four—
No. 03-1863 5
Countrymark’s sale of Buckeye stock. And counts 10 through
13 alleged the transportation of stolen funds from scheme
four across state lines. Counts 14 through 17 charged money
laundering incident to scheme three and count 18 charged
tax evasion. None of the counts focused on the events in-
volved in fraud schemes one and two described above.
A jury convicted Swanson on all counts on October 10,
2002. Swanson failed to appear for his scheduled sentencing
hearing on January 24, 2003. He was apprehended as a
fugitive on February 14, and sentenced on March 20, 2003,
under the 2001 version of the Sentencing Guidelines.
On appeal, Swanson argued first, that the district court
should have enlisted the 1998 United States Sentencing
Commission Guidelines Manual rather than the 2001 ver-
sion; second, that the district court was required to make an
independent judgment as to the amount of loss when
calculating the sentencing guidelines range and the amount
of restitution; and third, that the district court erred by or-
dering a $54 million forfeiture, arguing instead that Swanson
was convicted of laundering only $1.9 million.
Two days prior to the scheduled oral argument on appeal
to this court, the government filed a letter of supplemental
authority pursuant to Federal Rule of Appellate Procedure
28(j), conceding that the district court should have used the
1998 version of the Sentencing Guidelines Manual because
the last count of conviction occurred in 1998 and mail fraud
is not considered a continuing offense for purposes of decid-
ing which version of the guidelines to apply. The govern-
ment further conceded that the error was not harmless be-
cause the 1998 version would have resulted in a sentencing
range of 121-151 months rather than 151-188 months. The
government urged this court to remand the case for the
limited purpose of recalculating the sentence pursuant to
the 1998 Guidelines.
6 No. 03-1863
After argument, the parties submitted briefs on the ap-
plicability of Blakely v. Washington, 124 S. Ct. 2531 (2004)
to the sentencing matters in this case. The government ar-
gued that where the jury found a fraud scheme as alleged
in the indictment, the jury’s verdict covered all of the facts
on which the court made rulings for sentencing enhance-
ments. Swanson argued, on the other hand, that pursuant
to Blakely, his sentence could not be enhanced without a
specific jury determination on the amount of loss, and that,
in any case, the jury verdict established a loss of no more
than $35,000.
We agree with the government’s and Swanson’s asses-
sment that this case must be remanded to recalculate the
sentence. We are not, however, convinced that the remand
should be limited to recalculation using the 1998 Guidelines.
We remand for recalculation of Swanson’s sentence using
the 1998 Guidelines or for any recalculation that might be
applicable in light of the pending decisions in Booker and
Fanfan, and for further factual findings on restitution and
forfeiture amounts consistent with this opinion.
II.
As the parties and this court are acutely aware, since the
time of Swanson’s sentencing hearing, the machinery of
federal sentencing has been called into question by the
United States Supreme Court. In Blakely v. Washington, 124
S. Ct. 2531 (2004), the United States Supreme Court over-
turned a Washington state court criminal sentence first re-
iterating the holding of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), that 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.
Blakely, 124 S. Ct. at 2536. It then expanded that holding
by concluding that the relevant statutory maximum is not
the maximum the judge may impose after finding additional
No. 03-1863 7
facts, but rather the maximum a judge may impose without
any additional findings. Id. at 2537. In other words, the
Supreme Court clarified that it is the province of the jury to
make the findings of fact that bear upon the length of a
defendant’s sentence. Following the Supreme Court’s
decision in Blakely, which of course, spoke only to the State
of Washington’s sentencing scheme, this court held in Booker,
375 F.3d at 513, 514, that the reasoning of Blakely must
also apply to sentences determined under the federal sen-
tencing guidelines—specifically, that it gave Booker the
right to have a jury determine how much cocaine he pos-
sessed and whether he obstructed justice—two factors upon
which the sentencing judge had relied when increasing his
sentence. The Supreme Court accepted certiorari in the
Booker case along with a companion case, United States v.
Fanfan, and the country awaits a final decision from the high
court. United States v. Booker, 125 S. Ct. 11 (U.S. Aug. 2,
2004) (No. 04-104) and United States v. Fanfan, 125 S.
Ct. 12 (U.S. Aug. 2, 2004) (No. 04-105). On remand to cor-
rect the error in choice of Sentencing Guidelines, Swanson
will in all likelihood be standing before the court in a post-
Booker/Fanfan world. We urge the district court to hold the
case for resentencing until our high court has illuminated
the process and standards by which criminal defendants
should be sentenced. It is true, as the government pointed
out in its supplemental briefing, that Swanson failed to
make a Booker-like argument in the district court, but on
remand Swanson may raise a new argument based on stat-
utes or opinions that post-date the original sentencing and
are not logically foreclosed by the appellate decision. United
States v. Malik, 385 F.3d 758, 761 (7th Cir. 2004).
In order to avoid unnecessary successive appeals, how-
ever, there are some issues that we will resolve without
knowledge of the ultimate outcome in Booker and Fanfan.
These include certain questions regarding the jury’s finding
of loss, and the lower court’s determination of restitution
and forfeiture.
8 No. 03-1863
If the Supreme Court ultimately determines that Swanson
had the right to have the jury determine the amount of loss
he caused to his victims, Swanson is correct in his conclu-
sion that the jury did not do so. The jury convicted Swanson
on all nineteen counts of the indictment, but never made
specific factual finding as to the amount of loss. At most,
the members of the jury made a factual finding regarding
the minimum amount of loss. For counts one and nine, the
jury did not have to find any specific amount of loss. It was
enough that the jury found that the defendant had devised
and executed a scheme to defraud using wire transmissions.
For counts two through eight and ten through thirteen, the
jury needed to find only that Swanson received stolen money
in the amount of $5,000 or more for each count. To convict
on counts fourteen through seventeen the jury had to find
that Swanson “laundered” more than $10,000. Counts eigh-
teen and nineteen alleged tax fraud and did not require any
specific monetary findings by the jury. The jury returned its
verdict form, finding Swanson guilty on each count. (R. at
111). We know, for example, that on count two, the jury
found that Swanson received stolen money in the amount
of $5,000 or more. Id. How much more, we do not know.
Swanson now argues that taking the instructions and ver-
dicts together, the maximum amount of loss established by
the jury is $35,000. The government, on the other hand,
maintains that when the jury rendered a guilty verdict on
all counts of the indictment, they were, by necessity, accept-
ing the entire amount of loss alleged in the indictment and
submitted into evidence at trial—including the amount of
loss described in the background information. The jury ver-
dict form, however, makes clear that the jury never came to
any conclusions regarding a specific amount of loss. Id.It is not enough, at any rate, that the indictment con-
tained specific allegations regarding the amount of loss and
that the jury convicted on all counts of the indictment.
Indictments often contain superfluous background informa-
No. 03-1863 9
tion that is not essential to the elements of the charge.
Allegations in an indictment that are not essential to prove
the crime charged are mere surplusage and need not be
proved nor addressed in instructions to the jury. United
States v. Liparota, 735 F.2d 1044, 1048 (7th Cir. 1984), rev’d
on other grounds, 471 U.S. 419 (1985); see also United States
v. LaBudda, 882 F.2d 244, 249-50 (7th Cir. 1989) (“any lan-
guage in the conspiracy count of the indictment stating that
the bonds were in fact stolen is mere surplusage, which the
government did not need to prove at trial”); United States v.
Kuenstler, 325 F.3d 1015, 1022 (8th Cir. 2003), cert. denied,
540 U.S. 1112 (2004) (noting that inclusion of an allegation
in the indictment that the object of the offenses was the
production of fifty or more grams of methamphetamine was
not a constructive amendment of indictment, but was merely
a superfluous allegation which could be disregarded). It
follows, therefore, that we cannot assume that a jury has
made any factual findings regarding non-essential elements
of a crime merely by finding a defendant guilty of a par-
ticular count described in an indictment. In short, should
the Supreme Court conclude that a jury must determine the
amount of loss for sentencing purposes (including enhance-
ments), we note that this jury’s verdict alone does not sup-
port the amount of loss determined by the district court
below.1
The decisions in Blakely, Booker, and Fanfan, however do
not affect the manner in which findings of restitution or for-
1
Furthermore, depending on the Court’s ultimate conclusion in
Booker and Fanfan, the district court also may need to reconsider
the other sentencing enhancements included in the pre-sentence
investigation report (PSI) including the enhancement for the
sophisticated means employed during the commission of the crime
(U.S.S.G. § 2B1.1(b)(8)(C)), for abuse of a position of trust
(U.S.S.G. § 3B1.3)), and for extensive criminal activity (U.S.S.G.
§ 3B1.1(a)) (R. at 122).
10 No. 03-1863
feiture amounts must be made. See United States v.
Messino, 382 F.3d 704, 713 (7th Cir. 2004); United States v.
DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004) (finding res-
titution order unaffected by Blakely); United States v.
Wooten, 377 F.3d 1134, 1144, n.1 (10th Cir. 2004) (same)
cert. denied, 125 S. Ct. 510 (2004). This follows logically
from our reasoning in United States v. Vera, 278 F.3d 672,
673 (7th Cir. 2002) where we determined that forfeiture and
restitution orders do “not come within Apprendi’s rule,
because there is no ‘prescribed statutory maximum’ and no
risk that the defendant has been convicted de facto of a more
serious offense.” We can assume, therefore, that whatever
decision the Supreme Court comes to in Booker and Fanfan
will not affect our review of the restitution and forfeiture
orders in this case.2
Disputes regarding the proper amount of restitution must
be resolved by the court using a preponderance of the evi-
dence standard. 18 U.S.C. § 3664(e). We review a district
court’s calculation of the amount of restitution for abuse of
discretion. United States v. Minneman, 143 F.3d 274, 286
(7th Cir. 1998). Swanson created a challenging situation for
the district court by insisting at trial that, consistent with
his continued claim of innocence, he owed no restitution
whatsoever to the various victimized companies. Although
the burden is on the government to prove loss, a defendant’s
2
We held in United States v. Patel, 131 F.3d 1195, 1200 (7th Cir.
1997), that because criminal forfeiture (and consequently restitu-
tion) are elements of the defendant’s sentence rather than of the
underlying crime, the government need only establish its right to
forfeiture by a preponderance of the evidence rather than by proof
beyond a reasonable doubt. Whether this reasoning survives the
court’s decision in Booker and Fanfan remains to be seen and
offers yet another reason why the district court would be well-
advised to wait and see what the Supreme Court decision brings
before resentencing Swanson.
No. 03-1863 11
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 pre-sentence investigation
report (PSI). United States v. Sensmeier, 361 F.3d 982, 989
(7th Cir. 2004). A conundrum arises because, on the one
hand we have the defendant’s bold objection to the amount
of restitution without any specific argument or evidence re-
garding how the amount should be altered (other than to
make it zero). On the other hand, however, the government’s
proffer of evidence of loss lacked any specific detail or expla-
nation and bears some obvious flaws that shall be discussed
in more detail below. Consequently, it was not sufficient to
bear the burden of proof.
Unlike a determination of the amount of loss for sen-
tencing purposes, which can include the amount that the
defendant placed at risk (United States v. Lauer, 148 F.3d
766, 768 (7th Cir. 1998)), a restitution order compensates a
victim only for losses it has incurred. United States v.
Genova, 333 F.3d 750, 761, 762 (7th Cir. 2003). For this reason
the district court below had to tease from the complex web
of transactions in this case which portion of those transac-
tions represented actual losses to the victims—a task made
extraordinarily difficult by the muddled explanation of the
details of the transactions of these crimes. For example,
from the record we can not comprehend the source of the
$2.4 million restitution order to Countrymark. The govern-
ment’s Statement of Significant Facts Concerning Sentenc-
ing—the substance of which was largely adopted in the PSI,
contains a detailed and complicated chart indicating where
funds went during Countrymark’s acquisition of Buckeye.
We cannot discern from that chart, however, which of those
transfers of funds resulted from illegal activity or, more
importantly, which of those transfers constituted a loss to
Countrymark. (R. at 114, Ex. B). It is similarly futile to at-
tempt to link the other specific amounts found in the PSI’s
12 No. 03-1863
list of restitution amounts with the numbers incorporated in
the narrative description of Swanson’s offenses. (R. at 122).
Nor should we or the district court have to. It was the gov-
ernment’s burden to make those specific connections as part
of its burden to prove loss. It is not our responsibility to root
through the thousands of pages that make up the record in
this case in order to dissect legitimate expenditures from
illegitimate, and the amounts placed at risk from amounts
lost to the victims. See Corley v. Rosewood Care Ctr., Inc. of
Peoria, 388 F.3d 990, 1001 (7th Cir. 2004) (refusing to root
through thousands of pages of record to support a litigant’s
position).
At sentencing, the district court asked the government to
justify just one of the many restitution amounts suggested
in the PSI—the $1,161,000 for the Buckeye acquisition. (R.
at 181, Sent. Trans. at p.45). Although the government
presented evidence regarding the amount of each allegedly
fraudulent transfer, it failed to explain how these transfers
resulted in loss to the victim or whether these transfers
were part of the illegal activity. Id.3 The PSI is no more
helpful in deciphering these matters. (R. at 122). It was
Swanson’s position, after all, that at least some (if not all)
of the transactions described in the indictment were legit-
imate business transactions between sophisticated commer-
cial entities. And it is possible, after all, that Countrymark—
to name just one victim—received some value by acquiring
working, viable businesses or other assets during these
commercial transactions. To the extent that the acquisition
3
Furthermore, the government’s numbers proffered at the sen-
tencing hearing add up to $1,036,074.41, not $1,161,000 as orig-
inally claimed by the government and stated in the PSI. Id. This
discrepancy of $124,296 gives us little confidence either in these
calculations or the other claims for restitution for which there was
no explanation by the government at sentencing.
No. 03-1863 13
of these commercial entities added value to the respective
victims’ businesses, that value must be deducted from the
restitution award. See United States v. Shepard, 269 F.3d
884, 887-888 (7th Cir. 2001) (bilked funds later used by
defendant to make improvements to victim’s home consti-
tuted returned property for purposes of restitution award);
Sensmeier, 361 F.3d at 989 (noting that defendants had the
opportunity (but waived it) to present evidence of the value
of property that the victimized business received as part of
the scheme as a means of lowering the restitution amount).
Similarly, the restitution statute requires the court to
deduct the value of any part of the property that has been
returned. 18 U.S.C. § 3663A(b)(1)(B)(i)(II). We cannot be
certain that the court considered the $120,000 that was re-
turned to Countrymark in 1997 (R. at 114, Ex. E) nor the
$400,000 that Swanson repaid to Countrymark before the
return of the indictment (R. at 181, Sent. Tr. at p.72; R. at
122, ¶ 25).
We hesitate to criticize the district court on this point as
it was faced with a most complex case involving intricate
commercial transactions that Swanson purposefully obfus-
cated to hide his illicit activity. Nevertheless, we simply
cannot determine from the record that Swanson’s victims
incurred $5,526,392 in losses. And since we must remand
this case for application of the proper guidelines, it seems
appropriate for the district court to either clarify its rea-
soning for the amount of restitution chosen or to recalculate
the amount of restitution (with the government’s aid)
verifying the value of loss to the companies victimized by
Swanson’s actions and subtracting the value of any funds or
property returned.
We turn now to the claims regarding restitution’s alter
ego—forfeiture. Although restitution is loss-based, forfeiture
is gain-based. Genova, 333 F.3d at 761. We review factual
findings regarding forfeiture for clear error and review de novo
14 No. 03-1863
whether those facts adduced at a forfeiture hearing consti-
tute proper forfeiture. United States v. Baker, 227 F.3d 955,
967 (7th Cir. 2000).
At oral argument the government spent a great deal of
time discussing the funds Swanson placed at risk in response
to questions regarding the forfeiture amount. Including the
amount a defendant placed at risk is indeed appropriate
when calculating the amount of intended loss for sentencing
purposes (see Lauer, 148 F.3d at 768), but it is not the
standard by which to calculate forfeiture. The criminal for-
feiture statute states that “[t]he court, in imposing sentence
on a person convicted of an offense in violation of section . . .
1957 [money laundering] . . . of this title, shall order that
the person forfeit to the United States any property, real or
personal, involved in such offense, or any property traceable
to such property.” 18 U.S.C. § 982(a)(1).
It is true that “money does not need to be derived from
the crime to be forfeited. It can be forfeited if it is involved
in the crime.” Baker, 227 F.3d at 969. “Clean” money in a
bank account, for example, may help to mask the criminal
proceeds passing through. United States v. Trost, 152 F.3d
715, 721 (7th Cir. 1988). As we have noted before, however,
“the presence of one illegal dollar in an account does not
taint the rest—as if the dollar obtained from fraud were like
a drop of ink falling into a glass of water.” United States v.
$448,342.85, 969 F.2d 474, 476 (7th Cir. 1992).
The government relies on Baker for the proposition that
all funds can be forfeited if they are involved in the criminal
scheme. In Baker, the district court ordered the defendant
to forfeit all of the money and property involved in his il-
legal prostitution business, and not merely the funds that
had passed over interstate wires in violation of federal law.
All of the funds from Baker’s prostitution business, this
court concluded, both the credit card transactions and cash
No. 03-1863 15
proceeds, were illegal and part of the money laundering
process, and therefore, all of the funds were “involved in”
the money laundering conspiracy—not just the specific
funds that were proved by the government at trial. Id. at
969. In contrast, it is not explicitly clear that all of the
funds listed in the government’s forfeiture submission in
this case were from illegal activity. In fact, as we noted
above, Swanson maintains that some of the transactions—
or at least some portions of the transactions—were above-
board, arm’s length sales negotiations between sophisticated
companies. For example, Countrymark and Growmark’s
acquisition of Malta Clayton was not an illegal transaction.
Swanson’s appropriation of funds for his personal use was.
The former legitimate transaction was not “involved in” the
illegal activity and Swanson gained nothing from it. And
forfeiture is, after all, “gain based.” Genova, 333 F.3d at
761.
The Genova, case illustrates how a district court must
focus on a defendant’s gains for purposes of calculating for-
feiture. Id. at 761. In Genova, a corrupt Public Works
Commissioner paid his employees (via overtime and com-
pensatory time) to perform unlawful political services for
the crooked mayor of Calumet City, Illinois. Id. at 754. This
court determined that money that the City paid to employ-
ees to perform these unlawful political services was not
forfeitable to the mayor who did not receive a penny and
thus had no proceeds from the illegal activity, despite the
fact that he received some “political capital” from the city
workers’ time spent on political duties. Id. at 762. It is true
that Genova involved forfeiture under a RICO statute, but
the philosophy is no different here. Genova makes clear that
money that a defendant caused a victim to lose is properly
accounted for by an order of restitution; only assets gained
by the defendant can be collected via a forfeiture order.
16 No. 03-1863
Genova, 333 F. 3d at 762.4 Swanson received no benefit
from the $35 million that Countrymark and Growmark used
to purchase their respective shares of the Malta Clayton
business. He did, however, receive plenty of benefit from the
portion of that money that he diverted from that acquisition
to his own personal use. The latter funds should have been
identified separately for purposes of computing forfeiture.
The defendant argues that the court cannot order a crim-
inal forfeiture of property that does not belong to the
defendant. The $31 million that Countrymark and Growmark
spent to acquire Malta Clayton belonged to those companies
and not to Swanson. This argument is but a variation on
the theme discussed above. Those funds actually spent by
Countrymark and Growmark to acquire Malta Clayton
never became assets in Swanson’s hands.
On remand the district court should make specific find-
ings teasing those funds which were “involved in” Swanson’s
illegal activity (and which constituted a gain to Swanson)
from those funds that were not.
In sum, we remand this case to the district court for re-
sentencing in light of the forthcoming United States Supreme
Court opinions in Booker and Fanan. This may or may not
involve application of the 1998 Sentencing Guidelines
4
It is worth noting, however, that a change in the form of pro-
ceeds obtained from the crime does not prevent forfeiture, provided
that the proceeds were involved in the crime as required by
18 U.S.C. §982(a)(1). Section 982(b)(1) allows the government to
obtain substitute assets if it cannot find property “involved in” or
“traceable to” the offense of conviction. 21 U.S.C. § 853(p) (incorp-
orated into 18 U.S.C. § 982(b)(1) by reference). For example, if
Swanson used the funds skimmed from the Malta Clayton acqui-
sition to purchase his home in New York, the home would then be
forfeitable as well.
No. 03-1863 17
Manual, but will certainly require some recalculation and
additional findings on restitution and forfeiture.5
REVERSED and REMANDED
RIPPLE, Circuit Judge, concurring in part and dissenting
in part. I agree entirely with my colleagues with respect to
all substantive matters addressed in the opinion of the
court. I also agree that the ultimate disposition of sentenc-
ing matters in this case must await the Supreme Court’s
decisions in United States v. Booker, 375 F.3d 508 (7th Cir.
2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004)
(No. 04-104) and United States v. Fanfan, No. 03-47, 2004
WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S.
Ct. 12 (U.S. Aug. 2, 2004) (No. 4-105). I would therefore hold
our decision in this case until the Supreme Court decides
5
Our colleague’s comment about awaiting the outcome of United
States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S.
Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan,
No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted,
125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 04-105) for the sake of ju-
dicial economy would ordinarily hold sway. In this case, however,
the matter must be remanded for reasons unrelated to Booker and
Fanfan—that is to unravel the issues regarding forfeiture and
restitution. For this reason judicial economy will be served best by
allowing the parties immediately to begin their efforts to clarify
the forfeiture and restitution issues for the district court. Further-
more, by remanding this matter now the district court will have
the first opportunity to apply the holdings of Booker and Fanfan
while allowing for later appellate review if necessary.
18 No. 03-1863
those matters or, in the alternative, I would issue the opin-
ion, but stay our mandate, until those cases are decided and
we can give the district court a more definitive ruling on
how it ought to proceed in a resentencing proceeding. I can
see no judicial economy in placing this case back on the
docket of a busy district court until we can say how that
court ought to proceed. To this limited extent, I respectfully
dissent from the otherwise thoughtful opinion of the court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-7-05