United States v. Heon Seok Lee

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-1687 & 18-1950
UNITED STATES OF AMERICA,
Plaintiff-Appellee/
Cross-Appellant,
v.
HEON SEOK LEE,
Defendant-Appellant/
Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cr-00109-1 — Sharon Johnson Coleman, Judge.
____________________
ARGUED APRIL 9, 2019 — DECIDED AUGUST 21, 2019
____________________
Before KANNE, BARRETT, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Crowbar in hand, U.S. Customs
Officer Jorge Parra spent December 8, 2010 “cracking open
containers” at a warehouse near the Los Angeles seaport.
Parra pried open one from South Korea to inspect its freight.
Inside he found a fully assembled, five-foot tall industrial fan
2 Nos. 18-1687 & 18-1950
called a turbo blower. A placard riveted to the side read, “As-
sembled in USA.”
Presented with a fully assembled machine fresh off the
boat from South Korea, which brazenly advertised its assem-
bly in the United States, little sleuthing was required to deter-
mine something was amiss. Parra’s discovery kicked off a
federal investigation that traced back to the defendant in this
case, Heon Seok Lee. Prosecutors eventually charged Lee with
executing a scheme to defraud local governments by falsely
representing that his company manufactured its turbo blow-
ers in the United States.
A grand jury indicted Lee on five counts of wire fraud and
three counts of smuggling. After a trial, the jury found Lee
guilty on all counts. Lee now appeals his convictions and the
restitution ordered, and the government cross-appeals Lee’s
prison sentence. We find no fault in the trial or the sentence.
I. Background
A. The Recovery Act
This criminal case has an atypical origin: an economic
stimulus package. Congress passed the American Recovery
and Reinvestment Act, Pub. L. No. 111-5, 123 Stat. 115
(2009)—which we will simply call the “Recovery Act”—to
jumpstart the flagging domestic economy during the Great
Recession. See Kameron Hillstrom, The American Recovery and
Reinvestment Act: A Fitting Future for Recovery Legislation, 44
PUB. CONTRACT L. J. 285, 288 (2015). The Recovery Act ear-
marked billions to fund public infrastructure projects. Id. at
289 (noting the Recovery Act made $261.2 billion available for
such projects).
Nos. 18-1687 & 18-1950 3
Relevant to this case, Congress allocated $6.4 billion to the
EPA for water-infrastructure improvements. The EPA did not
spend the money directly; instead it awarded grants to “re-
volving funds” administered by the States. After receiving
EPA grants, the revolving funds then issued low-interest
loans to local municipalities or agencies sponsoring specific
projects. Those local governments were then responsible for
hiring contractors to perform the work.
To achieve Congress’s objective of bolstering the Ameri-
can economy, the Recovery Act included the following do-
mestic purchasing requirement, commonly known as the
“Buy American” provision:
None of the funds appropriated or otherwise
made available by this Act may be used for a
project for the construction, alteration, mainte-
nance, or repair of a public building or public
work unless all of the iron, steel, and manufac-
tured goods used in the project are produced in
the United States.
Recovery Act § 1605(a), 123 Stat. 303.1
At first glance, this requirement seems straightforward.
But federal agencies struggled to pin down what it means for
a product to have been “produced in the United States.” Dif-
ferent agencies used different tests. See Thomas D. Blanford,
Navigating the Recovery Act’s Buy American Rule in State and
Local Government Construction, 46 PROCUREMENT LAWYER 3, 4
(Fall 2010) (listing five tests used by different agencies). The
1 The Recovery Act’s Buy American provision should not be confused
with the separate, much older, Buy American Act of 1933,
41 U.S.C. §§ 8301–8305.
4 Nos. 18-1687 & 18-1950
EPA adopted the “substantial transformation” standard to
administer the Recovery Act, and it developed a three-part
test to assess whether a manufacturer substantially trans-
formed a product within the United States.
As a condition to receiving Recovery Act funding, local
governments and their contractors were required to abide by
the Buy American provision. Federal agencies like the EPA
audited projects to ensure compliance. Local governments re-
quired their suppliers to complete “Buy American certifica-
tions” representing that their products complied with the stat-
ute.
B. KTurbo’s Initial Plan
Heon Seok Lee founded KTurbo Inc. in his homeland of
South Korea. KTurbo manufactures centrifugal turbo blow-
ers—large industrial fans used to provide oxygen for biologi-
cal water treatments in wastewater facilities. Turbo blowers
are sophisticated and expensive pieces of equipment, requir-
ing on-site programming, testing, and calibration.
Lee saw the Recovery Act as a growth opportunity for
KTurbo, whose penetration into the United States market was
limited at the time. The Recovery Act earmarked billions for
products like KTurbo’s turbo blowers. But KTurbo would be
unable to tap into those funds unless it demonstrated compli-
ance with the Buy American provision. So, Lee and his sister,
Trinity Lee,2 developed a Recovery Act plan. They researched
regulatory guidance from the EPA and monitored larger com-
petitors’ responses. KTurbo leadership discussed Buy
2We refer to the defendant, Heon Seok Lee, as “Lee” and Trinity Lee by
her full name. Trinity Lee served as KTurbo’s general manager for North
America.
Nos. 18-1687 & 18-1950 5
American compliance for months, with several in-depth
meetings that lasted hours.
KTurbo enlisted independent sales representatives around
the country to market its turbo blowers to local governments
pursuing Recovery Act projects. KTurbo also consulted with
several sales representatives in the early stages of its Buy
American planning. One sales representative, Dick Koch, dis-
couraged KTurbo from pursuing a plan to make turbo blow-
ers in South Korea, ship them to the United States, take them
apart, and then reassemble stateside. Koch warned Lee and
KTurbo in an email that such evasive practices could be
deemed criminal:
The [EPA] webcast specifically excludes Heon
Seok’s idea of sending the equipment to the US
and taking it apart and putting it back together.
In fact the webcast says that if you say that is
[Buy American] you are committing criminal
fraud.
Trinity Lee reassured Koch that KTurbo would use compo-
nents from both South Korea and the United States and as-
semble the turbo blowers in greater Chicago. Other sales rep-
resentatives who inquired about KTurbo’s Buy American
compliance plan were told the same thing, including by Lee
himself.
At that point, KTurbo formed an Illinois subsidiary,
KTurbo USA Inc.,3 leased a warehouse in Batavia, Illinois, and
hired three American technicians. KTurbo’s sales
3 The legal distinction between KTurbo Inc. and KTurbo USA Inc. does
not matter for purposes of this opinion, so we refer to the two companies
collectively as “KTurbo.”
6 Nos. 18-1687 & 18-1950
representatives landed several contracts for Recovery Act
projects. In its bids, KTurbo highlighted its domestic presence
and promised Buy American compliance. For example,
KTurbo submitted a bid to South Burlington, Vermont in the
summer of 2009, which included the following Buy American
certification:
By this letter, KTurbo USA certifies that it will
manufacture and deliver KTurbo brand blower
packages and equipment in compliance with
the final requirements of the 2009 U.S. economic
stimulus law, The American Recovery and Re-
investment Act of 2009.
KTurbo sent nearly identical compliance letters for projects in
California, Massachusetts, Nevada, and Oregon.
These representations—a South Korean company certify-
ing its product was “produced in the United States”—did not
go unnoticed. A competitor that lost a bid to KTurbo filed a
complaint with the EPA in the fall of 2009. In response, EPA
officials visited KTurbo’s Batavia facility on October 30, 2009.
During that visit, Lee gave a PowerPoint presentation
detailing KTurbo’s plans to comply with the Buy American
provision. He represented that KTurbo would assemble its
turbo blowers at the Batavia facility. Slides in Lee’s presenta-
tion indicated fifty percent of the total input costs would be
attributable to American components, assembly, and testing.
Trinity Lee sent the EPA a letter confirming these details a few
weeks later.
KTurbo manufactured its first turbo blower at the Batavia
facility in January 2010. It built nine more there over the next
three months, at a rate of one to two weeks per blower.
Nos. 18-1687 & 18-1950 7
C. The Revised Plan
It did not take long for Lee to abandon that original plan
to produce turbo blowers in Batavia. By April 2010, Lee con-
cluded production costs in the United States were prohibi-
tively expensive, and he decided to go back to importing
turbo blowers from South Korea. Employees pushed back
with concerns about KTurbo’s Recovery Act compliance, but
Lee forged ahead. At trial, one of KTurbo’s technicians ex-
plained how the component parts from South Korea began
arriving more and more fully assembled, until completely as-
sembled blowers started showing up. No new components
were added to the turbo blowers once they reached Batavia.
Technicians simply plugged them in and ran performance ef-
ficiency tests.
Lee’s revised plan depended on its secrecy. He instructed
KTurbo employees not to disclose to customers the fact that
their turbo blowers were made in South Korea. To evade de-
tection, KTurbo (with Lee’s knowledge) went out of its way to
avoid shipping the machines from South Korea directly to
customers. When municipalities questioned KTurbo about
Recovery Act compliance, KTurbo simply lied. Take KTurbo’s
May 20, 2010 response to Lowell, Massachusetts: “The blower
will be assembled and tested at KTurbo’s Chicago location.”
Lee himself participated, emailing a sales representative sim-
ilar misrepresentations in September 2010: “We assemble and
test in Chicago. Only motor and VFD comes from Korea. It is
almost Made In USA.”
But this scheme unraveled quickly. Jorge Parra’s shipyard
discovery in December 2010 was the beginning of the end.
When U.S. Customs detained KTurbo’s products at the bor-
der, the company fell behind on its deliveries. This required
8 Nos. 18-1687 & 18-1950
more lies to hide that the turbo blowers were coming from
overseas and needed to clear U.S. Customs. When a Lowell,
Massachusetts general contractor contacted KTurbo about the
delays, Joel Schomo (a KTurbo engineer) told him the Batavia
facility was waiting for parts to begin final assembly, even
though KTurbo had discontinued all assembly operations in
Batavia months earlier. At trial, Schomo testified he told this
lie because the Recovery Act funded Lowell’s project and he
did not want to raise any “red flags” that KTurbo “might not
be complying with the Recovery Act requirements.”
Within two months, federal investigators executed a
search warrant at the Batavia facility. Lee was present. During
the search, Lee admitted he was aware that the turbo blowers
were for Recovery Act projects, that KTurbo shipped them
fully assembled from South Korea, and that it was “wrong”
to do so.
D. Lee’s Prosecution
About a year later, a grand jury returned an indictment
against Lee. It alleged he falsely represented that KTurbo’s
turbo blowers complied with the Buy American provision
when Lee knew KTurbo “did not perform and did not intend
to perform substantial transformation of the turbo blowers at
the KTURBO facility in Batavia, Illinois, before delivery of the
turbo blowers to municipal wastewater treatment facilities re-
ceiving Recovery Act stimulus funds.” The indictment also
charged Lee “knew that turbo blowers were substantially as-
sembled before their arrival in the United States and did not
require meaningful assembly or manufacturing in the United
States.”
Nos. 18-1687 & 18-1950 9
By this point, Lee had fled the country. It took three years
to extradite him from South Korea. When the government fi-
nally brought Lee back to appear, he responded to the indict-
ment with a series of motions to dismiss, each of which the
district court denied.
During an eight-day trial, the government presented doz-
ens of witnesses: U.S. Customs officers, federal agents,
KTurbo employees, sales representatives, general contractors,
and employees of municipal customers. Lee elected to take
the stand, and he adamantly denied any knowledge that
KTurbo imported fully assembled blowers into the United
States. On cross-examination, the government battered Lee’s
credibility, impeaching him with documentary evidence and
other witnesses’ testimony. The jury ultimately convicted Lee
on all counts.
E. Post-Trial Proceedings
Lee filed a series of post-trial motions seeking to vacate the
jury’s verdict; the district court denied each. The district court
held three sentencing hearings over several months, which
centered on the parties’ dispute about how to calculate Lee’s
guideline range. For wire fraud convictions, the Sentencing
Guidelines instruct district courts to begin with a base offense
level of seven and then to add levels based on the amount of
the “loss” caused by the defendant. U.S. SENTENCING
GUIDELINES MANUAL § 2B1.1(a)–(b) (U.S. SENTENCING
COMM’N Nov. 2018). In this case, the parties disputed whether
Lee should receive credit in the loss calculation for the market
value of KTurbo blowers sold to customers.
The district court initially ruled that the loss equaled the
total amount KTurbo received from defrauded municipalities
10 Nos. 18-1687 & 18-1950
(about $180,000), putting Lee’s guideline range at 46–57
months. But the court gave Lee a below-guidelines prison sen-
tence of 20 months, plus restitution. Two weeks later, Lee filed
a notice of appeal and a motion asking the district court to
correct its judgment under FED. R. CRIM. P. 35(a). The district
court held a hearing on Lee’s Rule 35(a) motion, where it
agreed with Lee’s argument on the guideline calculation and
resentenced Lee to 12 months. After the district court entered
its final judgment on March 14, 2018, Lee filed a second notice
of appeal on March 28, 2018. Thirty days later, the govern-
ment cross-appealed Lee’s sentence.
II. Discussion
A. Wire Fraud Convictions
We begin with Lee’s wire fraud convictions. He asks us to
vacate them because the government’s trial evidence con-
structively amended the indictment and failed to prove all the
elements of the crime.
1. Did the government’s case at trial impermissibly
deviate from the indictment?
“No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury … .” U.S. CONST. amend. V. The Founders
adopted this grand jury requirement from English tradition,
in which lay grand jurors considered whether a crime should
be charged while also protecting the accused from prosecuto-
rial overreach. See Wood v. Georgia, 370 U.S. 375, 390 (1962); see
also Andrew D. Leipold, Grand Jury Requirement, in THE
HERITAGE GUIDE TO THE CONSTITUTION 431 (David F. Forte &
Matthew Spalding eds., 2d ed. 2014). The Supreme Court has
explained “that a court cannot permit a defendant to be tried
Nos. 18-1687 & 18-1950 11
on charges that are not made in the indictment against him.”
Stirone v. United States, 361 U.S. 212, 217 (1960).
Two related doctrines arise out of this Fifth Amendment
requirement: constructive amendment and variance. Both
explain differences between the government’s case in the in-
dictment and the government’s case at trial. Constructive
amendment occurs where the trial evidence supports (or the
court’s jury instructions charge) an offense not alleged in the
indictment. United States v. Burge, 711 F.3d 803, 813 (7th Cir.
2013). Variance refers to situations where the government’s
trial evidence “proves facts materially different from those al-
leged in the indictment.” United States v. Ajayi, 808 F.3d 1113,
1125 (7th Cir. 2015) (quotation marks omitted). The distinction
between the two doctrines is subtle, but significant. Where a
different crime has been proved (constructive amendment), it
is error per se and the verdict must be vacated. United States
v. Ratliff-White, 493 F.3d 812, 820 (7th Cir. 2007).4 But where
the same crime is proved, only through evidence different
than the factual allegations in the indictment (variance), the
defendant must demonstrate prejudice to his substantial
rights. Id.
Lee contends the government constructively amended the
indictment by presenting evidence of misrepresentations be-
yond KTurbo’s Buy American certifications. He claims the in-
dictment confined itself to the falsity of the certifications,
while the government’s trial evidence focused on other lies,
4 This assumes the defendant properly preserved the error in the district
court. If the issue was waived or forfeited, we review only for plain error.
United States v. Remsza, 77 F.3d 1039, 1043–44 (7th Cir. 1996) (assessing de-
fendant’s constructive amendment argument under a plain error standard
due to defendant’s failure to raise it in the district court).
12 Nos. 18-1687 & 18-1950
such as false statements in sales presentations, misrepresen-
tations to sales representatives, and misleading emails to
general contractors.
Even if we accept as true Lee’s interpretation of the indict-
ment and his characterization of the trial evidence, it would
not rise to the level of a constructive amendment. The govern-
ment did not attempt to prove a crime different from the one
alleged. See United States v. Khilchenko, 324 F.3d 917, 920 (7th
Cir. 2003) (“To effect a constructive amendment, the evidence
at trial must establish offenses different from or in addition to
those charged by the grand jury.”). Prosecutors did not argue
Lee committed mail fraud when the indictment charged wire
fraud. The government’s case at trial did not attempt to prove
a fraud in the air compressor market after alleging a scheme
in the turbo blower market. Constructive amendments arise
“where there is a ‘complex of facts distinctly different from
those set forth in the charging instrument and not where there
is a single set of facts.’” United States v. Galiffa, 734 F.2d 306,
314 (7th Cir. 1984) (quoting United States v. Von Stoll, 726 F.2d
584, 586 (9th Cir. 1984)). Here, the government consistently
maintained that Lee committed wire fraud by selling turbo
blowers made in South Korea as if they were made in the
United States.
Lee’s argument is more aptly characterized as one of vari-
ance, although he does not frame it that way. Even if the crime
charged remains consistent, it is a problem if the government
materially alters the factual underpinnings of that charge. See
United States v. Cina, 699 F.2d 853, 857–58 (7th Cir. 1983)
(defendant may establish reversible error where the variance
altered an essential or material element of the charge). But
variance claims are subject to harmless error review—we will
Nos. 18-1687 & 18-1950 13
not disturb a conviction on account of “a technical deficiency
of no prejudice to the defendant.” Id. (quoting Russell v. United
States, 369 U.S. 749, 763 (1962)). No prejudice exists in this
case.
First, despite Lee’s characterization, the indictment did
tailor its fraud allegations to KTurbo’s failure to manufacture
its turbo blowers at the Batavia facility. Paragraph 3 of the in-
dictment alleged KTurbo “did not perform and did not intend
to perform substantial transformation of the turbo blowers at
the KTURBO facility in Batavia, Illinois, before delivery of the
turbo blowers to municipal wastewater treatment facilities
receiving Recovery Act stimulus funds.” It also expressly al-
leged that Lee knew the turbo blowers were already assem-
bled before arriving in the United States. The government
proved those allegations at trial with evidence that Lee knew
KTurbo made its turbo blowers in South Korea and lied about
that fact. Such evidence matches the indictment’s fraud alle-
gations.
Second, even if these misrepresentations were not ex-
pressly covered by the indictment’s text, they were “part and
parcel” of the same scheme described by the indictment. Nye
& Nissen, Corp. v. United States, 336 U.S. 613, 617 (1949) (no
variance where indictment alleged a single scheme to defraud
executed in various ways). Additional evidence regarding
technical details about how a defendant executed an alleged
scheme does not constitute an impermissible variance. Ajayi,
808 F.3d at 1125 (presentation of “more detailed” facts at trial
not an impermissible variance). Lee cannot demonstrate his
Fifth Amendment rights were violated because the govern-
ment’s trial evidence concerned “the same elaborate scheme
to defraud … as was described in the indictment.”
14 Nos. 18-1687 & 18-1950
Ratliff-White, 493 F.3d at 821 (quoting United States v. Dupre,
462 F.3d 131, 140–41 (2d Cir. 2006)).
Two concerns underlie the constructive amendment and
variance doctrines: ensuring criminal defendants have ade-
quate notice of the charges against them and avoiding the risk
of double jeopardy. Neither is present here. The indictment
notified Lee of the allegations against him: that he committed
wire fraud by importing turbo blowers from South Korea
while representing they were made in Batavia. See United
States v. Corrigan, 912 F.3d 422, 428 (7th Cir. 2019) (indictment
provided valid notice despite listing wrong name of victim);
United States v. Kuna, 760 F.2d 813, 819 (7th Cir. 1985) (alleged
variance in mail fraud prosecution was harmless because the
defendant “was able to identify with great certainty the acts
for which he was placed in jeopardy”).
The indictment also included specific details about the
scheme alleged, alleviating any double jeopardy concerns. See
United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009) (hold-
ing specificity in the indictment would “avoid any later dou-
ble jeopardy concerns”). It described the Recovery Act’s Buy
American provision, how KTurbo leased a warehouse in
Batavia, KTurbo’s Recovery Act contracts, the fact KTurbo
failed “to perform substantial transformation of the turbo
blowers at the KTURBO facility in Batavia,” Lee’s knowledge
“that turbo blowers were substantially assembled before their
arrival in the United States and did not require meaningful
assembly or manufacturing in the United States,” and Lee’s
misrepresentations and concealment of KTurbo’s true opera-
tions. Such detail in the indictment protected Lee from expo-
sure to double jeopardy. See United States v. Scheuneman, 712
F.3d 372, 378 (7th Cir. 2013) (indictment sufficient where it
Nos. 18-1687 & 18-1950 15
“presented enough detail to allow [the defendant] to plead
double jeopardy to avoid future prosecution based on the
same conduct alleged”).
Because the indictment afforded Lee ample notice of the
case the government presented at trial and included specific
details of the crimes alleged to avoid double jeopardy risk, no
impermissible constructive amendment or variance occurred
in this case.5
2. Did the government present enough evidence to
convict Lee of wire fraud?
Lee appeals the district court’s denial of his motion for ac-
quittal under FED. R. CRIM. P. 29. We review such decisions de
novo, asking if the evidence—viewed in the light most favor-
able to the prosecution—could support a rational finding of
all the essential elements of the crime beyond a reasonable
doubt. United States v. Mohamed, 759 F.3d 798, 803 (7th Cir.
2014). Put differently, we reverse only if the trial record “is
devoid of evidence from which a jury could conclude guilt
beyond a reasonable doubt.” United States v. Alhalabi, 443 F.3d
605, 613 (7th Cir. 2006). Given this deference to the jury ver-
dict, Lee’s hurdle on appeal is high, as “we rarely reverse a
conviction for mail or wire fraud due to insufficient evi-
dence.” United States v. Weimert, 819 F.3d 351, 354 (7th Cir.
2016).
5Lee’s concerns are also mitigated because the district court gave the jury
a copy of the indictment and instructed jurors to convict only if the gov-
ernment had proved the crimes it alleged. See United States v. Cusimano,
148 F.3d 824, 830–31 (7th Cir. 1998) (district court’s provision of the indict-
ment to the jury and proper instruction on it “establish[ed] that there was
no constructive amendment to the indictment”).
16 Nos. 18-1687 & 18-1950
To convict a defendant of wire fraud, the government
must prove three elements: (1) a scheme to defraud, (2) the
defendant’s intent to defraud, and (3) the defendant’s use of
interstate wires in furtherance of the scheme. United States v.
Jackson, 860 F.3d 438, 446 (7th Cir. 2017). Lee challenges the
government’s proof on the first element, the scheme to de-
fraud. The wire fraud statute, 18 U.S.C. § 1343, reaches “any
scheme to deprive another of money or property by means of
false or fraudulent pretenses, representations, or promises.”
Carpenter v. United States, 484 U.S. 19, 27 (1987).
On appeal, Lee argues that KTurbo’s Buy American certi-
fications were not false. He claims KTurbo’s turbo blowers
complied with the Buy American provision because they were
made in South Korea. That claim is not as self-contradictory
as it first sounds, given the text of Recovery Act § 1605(d),
which requires the statute to be “applied in a manner con-
sistent with United States obligations under international
agreements.” Both the United States and South Korea have
joined the World Trade Organization’s Agreement on Gov-
ernment Procurement (WTO-GPA), which requires all signa-
tories to provide all other signatories’ exports “treatment no
less favourable than the treatment the Party, including its pro-
curing entities, accords to: (a) domestic goods, services and
suppliers; and (b) goods, services and suppliers of any other
Party.” WTO-GPA art. 4 § 1, Apr. 6, 2014, 3008 U.N.T.S. Reg.
Nos. 18-1687 & 18-1950 17
No. A-31874.6 In other words, the WTO-GPA is a multi-lateral
“most favored nation” clause for government purchasing. Lee
interprets Recovery Act § 1605(d) to mean the WTO-GPA’s
most favored nation clause supersedes the Buy American
provision, such that South Korean products must be given the
same treatment as American products for purposes of the
Recovery Act.7
Critically however, when the Recovery Act was enacted
the EPA publicly rejected the interpretation Lee now offers.
An April 2009 EPA memorandum explained that the agency
interpreted Recovery Act § 1605(d) to apply to direct pur-
chases by the federal government and the specific state and
local agencies expressly listed in the WTO-GPA’s appendices,
but not “to procurement initiated by local entities ([state re-
volving fund] assistance recipients), unless they are listed in
the appendix.” U.S. ENVTL. PROT. AGENCY, Memorandum on
6 By its terms, the WTO-GPA covers purchases made by the EPA above
certain dollar thresholds. WTO-GPA, Coverage Schedules, United States
ann. 1. Coverage of purchases made by States themselves, state agencies,
and local municipalities is more complicated, varying from State to State
and from agency to agency within a State. WTO-GPA, Coverage Sched-
ules, United States ann. 2–3; see also Hong-Sik Chung, Government Procure-
ment in the United States–Korea Free Trade Agreement: Great Opportunities for
Both Sides?, 34 NW. J. INT’L L. & BUS. 299, 303 (2014). But the WTO-GPA
provides that where a covered entity “requires persons not covered under
a Party’s annexes to Appendix I to procure in accordance with particular
requirements, Article IV shall apply mutatis mutandis to such require-
ments.” WTO-GPA art. 2 § 5.
7 Federal purchasing regulations provide that where an international
agreement applies, the “restrictions of section 1605 of the Recovery Act do
not apply to designated country iron, steel, and/or other manufactured
goods.” 2 C.F.R. § 176.160(b)(ii). South Korea is listed as a “designated
country” based on its membership in the WTO-GPA. 2 C.F.R. § 176.160(a).
18 Nos. 18-1687 & 18-1950
Implementation of Buy American provisions of P.L. 111-5
(Apr. 28, 2009), https://www.epa.gov/sites/production/files/2
014-12/documents/buy_am.pdf (last visited August 13, 2019).
In the nature of a “smoking gun,” federal agents found a copy
of this EPA memorandum in KTurbo’s Batavia facility, with
the relevant paragraph flagged by handwritten markings.
Reasonable jurors could thus conclude Lee was aware that the
EPA did not consider South Korean products Buy American
compliant.
As a result, even if one accepts Lee’s interpretation of Re-
covery Act § 1605(d), the EPA’s express rejection of it makes
KTurbo’s South Korean manufacturing a “material” fact for
wire fraud purposes. Neder v. United States, 527 U.S. 1, 16
(1999) (holding a statement is “material” if it has “a natural
tendency to influence, or is capable of influencing, the deci-
sion of the decisionmaking body to which it was addressed”)
(quoting United States v. Gaudin, 515 U.S. 506, 509 (1995)).
KTurbo could not legitimately certify its Buy American com-
pliance, at least not without disclosing to customers that the
turbo blowers were made in South Korea. Federal fraud stat-
utes reach such misleading omissions of material information.
United States v. Stephens, 421 F.3d 503, 507 (7th Cir. 2005).
A reasonable purchaser in this scenario—one who re-
ceived funds from the EPA pursuant to the Recovery Act and
was bound to comply with the Buy American provision—
would deem it highly relevant whether a supplier based its
Buy American certification on an interpretation of the statute
expressly rejected by the EPA. A series of trial witnesses con-
sistently testified that Recovery Act compliance was “abso-
lutely vital,” given it was a legal requirement of the project
funding. Without Buy American compliance, municipalities
Nos. 18-1687 & 18-1950 19
jeopardized losing all Recovery Act funding from the EPA. As
one customer testified, his municipality considered KTurbo’s
representations that the turbo blowers were “Assembled in
USA” to be “extremely important” because “it bolstered
[their] belief that [the turbo blower] was substantially
transformed in the United States.” Municipal employees also
testified they would not have purchased KTurbo’s blowers
without KTurbo’s Recovery Act assurances.
Where the fraud alleged deals with a half truth or material
omission, we generally require proof of an act of concealment
on the part of the defendant. See Stephens, 421 F.3d at 507. The
record in this case unmistakably reflects such concealment.
Trial evidence showed KTurbo’s repeated misrepresentations
to its customers about where KTurbo made its turbo blowers.
For example, KTurbo sent the City of Pendleton, Oregon a
Buy American certification in April 2010—shortly after Lee
decided to stop all domestic manufacturing operations—rep-
resenting that KTurbo had “established an assembly facility
in Batavia, Illinois, where partial manufacturing and assem-
bly of all units sold in North America will be complete[d].”
No one at KTurbo ever corrected that misrepresentation. At
the beginning of 2011, KTurbo sent the City of Ottawa, Illinois
a similar Buy American certification, signed by Trinity Lee,
which stated: “All assembly of the completed unit will be ex-
ecuted domestically. The assembly process includes wiring
and panel assembly, riveted frame assembly, total assembly
including all internal connections and power wiring, tubing
and final calibration will be perofrmaned [sic] at KTurbo USA
in Batavia, IL.” None of that certification was truthful, but it
was emblematic of KTurbo’s fraudulent scheme. United States
v. Betts-Gaston, 860 F.3d 525, 533 (7th Cir. 2017) (jurors are per-
mitted to infer fraudulent methodologies from evidence of
20 Nos. 18-1687 & 18-1950
similar fraudulent transactions). KTurbo repeatedly assured
municipalities and their general contractors of its Recovery
Act compliance. Several customers testified at trial about their
belief that KTurbo made its turbo blowers in the United
States.
KTurbo also misled its own sales representatives into
thinking KTurbo manufactured turbo blowers in Batavia, not
South Korea. These sales representatives testified they told
customers—based on KTurbo’s representations to them—that
KTurbo complied with the Buy American provision because
it manufactured and assembled its blowers in Batavia. Lee
masterminded these material misrepresentations, even if he
used sales representatives to pass them on to the ultimate cus-
tomers. See United States v. Seidling, 737 F.3d 1155, 1160 (7th
Cir. 2013) (“Nothing in the statutory text of 18 U.S.C. § 1341
requires a scheme to defraud to involve deception of the same
person or entity whose money or property is the intended ob-
ject of the scheme.”). He is responsible for misrepresentations
he commanded or willfully caused others to make as
KTurbo’s chief executive. 18 U.S.C. § 2; see also United States v.
Gunning, 984 F.2d 1476, 1483 (7th Cir. 1993) (“One who coun-
sels or commands another to commit a crime, and knowingly
and actively contributes toward its success, is guilty of that
crime under 18 U.S.C. § 2.”).
But Lee himself also actively participated in the cover up.
During his trial cross-examination, Lee acknowledged he
knew that KTurbo’s customers and the EPA cared about Buy
American compliance. But he admitted he told customers that
KTurbo blowers were manufactured and assembled in the
United States. When a sales representative asked Lee about
Buy American compliance in a September 2010 email, Lee
Nos. 18-1687 & 18-1950 21
responded: “We assemble and test in Chicago. Only motor
and VFD comes from Korea. It is almost Made In USA.” Lee
made that statement months after KTurbo stopped assembly
in the United States. Even as the scheme began to unravel in
early 2011, Lee persisted in his lies. On January 28, 2011, a
sales representative directly asked Lee about a rumor that fed-
eral agents were investigating KTurbo. Lee responded by en-
suring him that KTurbo faced no Recovery Act issues: “Most
important parts is [sic] final assembly and testing. We are do-
ing those, so we are compliant.” Then, on February 8, 2011,
when representatives of Pendleton, Oregon, asked KTurbo
where its turbo blowers would be assembled, Lee wrote: “In
Chicago the blowers will be finalized and tested and
shipped.”
Lee also challenges the government’s proof of his intent to
defraud. A defendant acts with an intent to defraud where he
acts “willfully and with specific intent to deceive or cheat,
usually for the purpose of getting financial gain for himself or
causing financial loss to another.” United States v. Pust, 798
F.3d 597, 600 (7th Cir. 2015) (quoting United States v. Paneras,
222 F.3d 406, 410 (7th Cir. 2000)). Lee claims the government
failed to prove he intended to defraud anyone because the
trial evidence showed KTurbo took concrete steps toward
manufacturing turbo blowers in the United States.
Lee’s intent argument ignores that his misrepresentations
continued well beyond April 2010, when he decided to stop
KTurbo’s American manufacturing operations. That Lee kept
telling people KTurbo assembled its turbo blowers in Batavia
months after KTurbo ceased doing so is strong circumstantial
evidence of Lee’s intent to defraud. Pust, 798 F.3d at 600–01
(specific intent to defraud may be established by
22 Nos. 18-1687 & 18-1950
circumstantial evidence and examination of the scheme it-
self). Agents’ discovery of copies of the EPA’s guidance mem-
oranda on the Buy American provision, as well as testimony
from other KTurbo employees about the extent of KTurbo’s
Recovery Act meetings and planning, support the conclusion
that Lee willfully attempted to circumvent the law.
A jury also could reasonably conclude that Lee never in-
tended to make turbo blowers in Batavia long term, but rather
set up the facility as part of his scheme to mislead the EPA,
sales representatives, and customers. Cf. United States v. Freed,
921 F.3d 716, 724 (7th Cir. 2019) (holding a promise made
without a present intention to keep it can be fraudulent). After
all, Lee did not wait even a full three months before putting
the kibosh on the entire operation. Viewing the evidence in
the light most favorable to the prosecution, there is more than
enough to conclude Lee intended to deceive and defraud
KTurbo’s customers.
The trial evidence presented over the course of eight days
adequately supports Lee’s participation in a scheme to de-
fraud and his intent to do so. Lee does not challenge his use
of interstate wires as a part of that scheme. With all three ele-
ments of wire fraud adequately established in the trial record,
we affirm the jury’s verdict.
B. Smuggling Convictions
We turn now from Lee’s wire fraud convictions to his three
smuggling convictions under 18 U.S.C. § 545. The statute pro-
vides, in part:
Whoever fraudulently or knowingly imports or
brings into the United States, any merchandise
Nos. 18-1687 & 18-1950 23
contrary to law … Shall be fined under this title
or imprisoned not more than 20 years, or both.
Over a century ago, when dealing with the predecessor to
§ 545, the Supreme Court held the words “contrary to law”
refer to legal provisions outside the statute itself. Keck v.
United States, 172 U.S. 434, 437 (1899). A violation of § 545 re-
quires a violation of another law—the predicate offense if you
will—done with a fraudulent or knowing mindset. In this
case, the government claimed Lee violated 19 U.S.C. § 1304(a):
[E]very article of foreign origin … imported into
the United States shall be marked in a conspic-
uous place as legibly, indelibly, and perma-
nently as the nature of the article (or container)
will permit in such manner as to indicate to an
ultimate purchaser in the United States the Eng-
lish name of the country of origin of the article.
Lee asserts that a violation of § 1304(a) cannot serve as a
predicate offense for a § 545 conviction. According to Lee, the
words “imports … merchandise contrary to law” in § 545
mean that the merchandise itself is per se illegal to import, not
merely that the merchandise was imported in a condition
noncompliant with some federal law or regulation some-
where.
In making this argument, Lee stresses the title of § 545:
“Smuggling goods into the United States.” He contends the
word “smuggling” refers exclusively to bringing on shore
goods whose importation is categorically prohibited. Lee ef-
fectively says he could not have “smuggled” the turbo blow-
ers into the United States because turbo blowers are allowed
in the United States.
24 Nos. 18-1687 & 18-1950
Even accepting Lee’s narrow interpretation of the word
“smuggling,”8 the text of the statute is not so cabined when
examined in its entirety. Section 545 contains two separate
prohibitions; we must consider both when assessing the stat-
ute’s meaning. See United States v. Fisher, 6 U.S. 358, 386 (1805)
(Marshall, C.J.) (“It is undoubtedly a well established
principle in the exposition of statutes, that every part is to be
considered, and the intent of the legislature to be extracted
from the whole.”). Section 545’s first paragraph, which is not
at issue, criminalizes “knowingly and willfully …
smuggl[ing], or clandestinely introduc[ing] … into the United
States any merchandise which should have been in-
voiced … .” That language criminalizes smuggling goods into
the United States, and the statute’s title summarizes that pro-
hibition. But § 545’s second paragraph—the one that is at is-
sue—is broader. It criminalizes “fraudulently or knowingly
import[ing] … any merchandise contrary to law … .” The text
of the second paragraph of § 545 makes no mention of the
word “smuggling.”
A statute’s title or heading is a permissible indicator of the
meaning of its text. Yates v. United States, 135 S. Ct. 1074, 1083
(2015); see also ANTONIN SCALIA AND BRYAN A. GARNER,
8 We have some doubt that the term is quite so limited. Cf. Smuggling,
BLACK’S LAW DICTIONARY (11th ed. 2019) (“The crime of importing or ex-
porting illegal articles or articles on which duties have not been paid.”);
Smuggling, BALLENTINE’S LAW DICTIONARY (3d ed. 2010) (“The criminal of-
fense of knowingly and willfully, with intent to defraud the United States,
clandestinely introducing into the United States any merchandise which
should have been declared for customs duty.”); Smuggle, AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2019) (“To
bring into a country (a prohibited item) secretively and intentionally in
violation of the law.”).
Nos. 18-1687 & 18-1950 25
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 221 (2012).
But a title cannot override the statutory text itself. Bhd. of R.R.
Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528–29
(1947). Although § 545—true to its title—outlaws smuggling
goods into the United States, the statute also criminalizes the
fraudulent or knowing importation of “merchandise contrary
to law.” Lee’s construction of that language as equating with
“smuggling” renders the two provisions of § 545 duplicative,
a heavily disfavored result. Kungys v. United States, 485 U.S.
759, 778 (1988) (discussing the “cardinal rule of statutory in-
terpretation that no provision should be construed to be en-
tirely redundant”); see also SCALIA & GARNER, supra, at 175.
The better reading of the second paragraph of § 545 is that it
makes it a crime to fraudulently or knowingly import mer-
chandise in any manner contrary to law. Section 545’s title
cannot save Lee from its text.
Lee next argues the case law is on his side. He claims the
cases only address scenarios where the defendant imported
goods that are illegal per se—barred entirely from importa-
tion into the United States. That might be true, but it would
not change the meaning of § 545. The scope of a statute cannot
be altered based on the fact patterns of cases that happen to
be charged and end up in the Federal Reporter. In any event,
Lee’s assertions about the state of the case law are inaccurate.
His cited authorities, Babb v. United States, 218 F.2d 538 (5th
Cir. 1955) and Steiner v. United States, 229 F.2d 745 (9th Cir.
1956), dealt with indictments that failed to identify an under-
lying violation to serve as the predicate for § 545 liability. The
indictments simply lacked any predicate offense undergird-
ing the § 545 charge. We do not have that here: the govern-
ment’s indictment specifically accused Lee of violating
§ 1304(a).
26 Nos. 18-1687 & 18-1950
And despite Lee’s attempts, we do not see how this case is
distinguishable from United States v. Kuipers, 49 F.3d 1254 (7th
Cir. 1995).9 In Kuipers, we affirmed the defendant’s § 545 con-
viction for attempting to import the horns of a protected spe-
cies under false paperwork. Id. at 1256. It was legal to import
the horns into the United States with the proper paperwork,
but the defendant used forged documentation to circumvent
the law. Here, Lee essentially did the same thing. Nothing
prohibited Lee from importing turbo blowers into the United
States, but he needed to do so with a proper country-of-origin
designation under § 1304(a). Lee circumvented that require-
ment in a fraudulent fashion, similar to the defendant in
Kuipers.
Lee also claims he could not have violated § 545 because
U.S. Customs detained the turbo blowers at the border, such
that the machines were never imported into the country. But
Lee fails to provide any reason to exclude domestic U.S. Cus-
toms facilities from the definition of the “United States,” as
used in § 545. If anything, the text supports the opposite con-
clusion, specifically excluding other areas but not U.S.
Customs offices. 18 U.S.C. § 545 (“The term ‘United States’, as
used in this section, shall not include the Virgin Island, Amer-
ican Samoa, Wake Island, Midway Islands, Kingman Reef,
Johnston Island, or Guam.”); see also 19 U.S.C. § 1304(j) (refer-
ring to merchandise held by U.S. Customs for inspection as
an “imported article”).
9 Lee’s claim that Kuipers dealt with only the first paragraph of § 545, and
not the second, is not correct. 49 F.3d at 1256 (“Kuipers was indicted on
March 1, 1994 for … (2) fraudulently and knowingly importing the Desert
Bighorn Sheep into the United States contrary to law
(18 U.S.C. § 545) … .”).
Nos. 18-1687 & 18-1950 27
Lee notes that federal law allows mismarked goods, after
their markings are corrected, to be imported. 19 U.S.C.
§ 1304(j); see also 19 C.F.R. § 134.51. He emphasizes that § 1304
does not itself purport to criminalize mismarking a product’s
country of origin, despite providing criminal sanctions for
other violations. 19 U.S.C. § 1304(l) (penalizing anyone who
“defaces, destroys, removes, alters, covers, obscures, or oblit-
erates” a country-of-origin mark with intent to conceal that
information). Yet one federal statute does not preempt
another. Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir. 2004).
Section 1304(l)’s silence cannot override the text of § 545. The
fact § 1304(l) does not separately criminalize conduct already
outlawed under § 545 is not a basis for limiting the scope of
§ 545. Cf. United States v. Hassanzadeh, 271 F.3d 574, 576–79
(4th Cir. 2001) (affirming § 545 conviction based on underly-
ing § 1304 labeling violation).10
Finally, Lee claims treating § 1304 violations as predicate
offenses for § 545 liability will criminalize a vast array of in-
nocent behavior in international commerce. This policy argu-
ment fails to account for § 545’s high scienter bar—fraudulent
or knowing misbehavior. Such a scienter requirement ensures
10 Lee’s invocation of United States ex rel. Huangyan Import v. Nature’s Farm
Prods., 370 F. Supp. 2d 993 (N.D. Cal. 2005), is not well received, particu-
larly his selective and misleading quotation. Although the opinion states
federal regulations “permit the importation of mismarked goods,” Lee
leaves out the important qualifying language about the monetary penal-
ties imposed in such circumstances. Id. at 1001. And, as the underlying
statute makes clear, goods originally mismarked upon arrival may be
withheld until their country-of-origin markings are corrected. 19 U.S.C.
§ 1304(i)–(j). Nothing in the Huangyan Import opinion suggests that at-
tempting to import merchandise with false country-of-origin designations
is anything but “contrary to law.”
28 Nos. 18-1687 & 18-1950
the statute does not criminalize innocent commercial mis-
takes. See Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019)
(“The cases in which we have emphasized scienter’s
importance in separating wrongful from innocent acts are le-
gion.”). And this case involves no mere administrative over-
sight. KTurbo’s mislabeling served an important function in
Lee’s broader scheme to deceive KTurbo customers about the
origin of the turbo blowers.
For all these reasons, we affirm Lee’s three smuggling con-
victions.
Having affirmed all Lee’s convictions, we now proceed to
the sentencing issues presented by the parties. We first ad-
dress the government’s cross-appeal regarding Lee’s prison
sentence, before resolving Lee’s challenge to the restitution
ordered by the district court.
C. The Government’s Cross-Appeal
The government asks us to reinstate the 20-month
sentence the district court originally imposed. It claims the
district court lacked authority under FED. R. CRIM. P. 35(a) to
reduce Lee’s sentence to 12 months. But before we reach the
merits of the government’s cross-appeal, we must resolve two
jurisdictional questions.
1. Is there statutory jurisdiction for the government’s
cross-appeal?
The government may appeal an adverse decision in a
criminal case only if expressly authorized by statute. United
States v. Martin Linen Supply Co., 430 U.S. 564, 568 (1977). Here,
the government cites 18 U.S.C. § 3731. But that provision does
not apply—the government is not appealing a dismissal of its
indictment, a new trial order, or any of the other issues listed
Nos. 18-1687 & 18-1950 29
in § 3731. See United States v. Spilotro, 884 F.2d 1003, 1005–06
(7th Cir. 1989) (holding § 3731 does not provide jurisdiction
for appeals challenging “a district court order reducing a sen-
tence”); see also CHARLES ALAN WRIGHT, ET AL., 15B FED. PRAC.
& PROC. § 3919.8 (2d ed. April 2019 supp.) (“Ordinarily the
government cannot rely upon either § 1291 or § 3731 to sup-
port appeal from a criminal sentence … .”).
The relevant statute is 18 U.S.C. § 3742(b), which author-
izes the government to appeal a defendant’s sentence on spe-
cific grounds. A district court’s modification of a sentence
without authority to do so, as the government argues here, is
one such ground. 18 U.S.C. § 3742(b)(1) (providing the gov-
ernment the ability to appeal sentences “imposed in violation
of law”). The government’s errant citation is not insignificant,
given that timeliness is an issue for its cross-appeal (as dis-
cussed below). Section 3731 contains a 30-day deadline for fil-
ing a notice of appeal that § 3742(b) lacks. See CHARLES ALAN
WRIGHT, ET AL., 16A FED. PRAC. & PROC. § 3950.8 (4th ed. April
2019 supp.); see also In re Grand Jury Proceedings, 616 F.3d 1186,
1195–99 (10th Cir. 2010) (discussing the interplay between
§ 3731 and FED. R. APP. P. 4(b)). Nevertheless, where the rec-
ord provides enough information to establish appellate juris-
diction, we may exercise such jurisdiction despite the parties’
failure to direct us to its proper statutory source. See NewPage
Wis. Sys. Inc. v. United Steel Workers Int’l Union, 651 F.3d 775,
778 (7th Cir. 2011) (if the jurisdictional statute cited by a party
is inaccurate, the “court still must inquire whether another
statute supplies jurisdiction”); see also In re Sealed Case, 449
F.3d 118, 121 (D.C. Cir. 2006) (holding the appellant’s failure
30 Nos. 18-1687 & 18-1950
to cite § 3742, “while bothersome to a court, is not necessarily
fatal”).
One issue remains: Section 3742(b) requires the govern-
ment to obtain “the personal approval of the Attorney
General, the Solicitor General, or a deputy solicitor general
designated by the Solicitor General” in order to appeal. Be-
cause the government did not rely on § 3742(b) in its briefing,
it has not provided proof of its compliance with that statutory
requirement. But our circuit precedent does not treat
§ 3742(b)’s approval requirement as jurisdictional. United
States v. Hendrickson, 22 F.3d 170, 172 n.1 (7th Cir. 1994).11
Nothing in the record suggests the government lacks author-
ization to pursue its cross-appeal, and Lee never raised the
issue.
11 See also United States v. Jackson, 544 F.3d 1176, 1181–82 (11th Cir. 2008)
(personal approval requirement in § 3742(b) is non-jurisdictional), abro-
gated on different grounds by United States v. DiFalco, 837 F.3d 1207, 1216
(11th Cir. 2016); United States v. Ruiz-Alonso, 397 F.3d 815, 818 (9th Cir.
2005) (same); United States v. Zamudio, 314 F.3d 517, 520 (10th Cir. 2002)
(same); United States v. Gonzalez, 970 F.2d 1095, 1102 (2d Cir. 1992) (same);
but see United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per
curiam) (dismissing the government’s sentencing appeal for failure to es-
tablish the requisite approval); United States v. Smith, 910 F.2d 326, 328 (6th
Cir. 1990) (holding the approval is not jurisdictional but requiring proof
that it has been obtained as part of the court’s “exercise of its supervisory
authority”); cf. Greenlaw v. United States, 554 U.S. 237, 246 (2008) (explain-
ing that an appellate court may not increase a defendant’s sentence absent
a cross-appeal because “Congress … entrusted to named high-ranking of-
ficials within the Department of Justice responsibility for determining
whether the Government, on behalf of the public, should seek a sentence
higher than the one imposed”).
Nos. 18-1687 & 18-1950 31
2. Did the government file its notice of appeal in time?
The next jurisdictional question concerns the timeliness of
the government’s notice of appeal. In a criminal case like this,
FED. R. APP. P. 4(b)(1)(B) provides the government’s deadline:
When the government is entitled to appeal, its
notice of appeal must be filed in the district
court within 30 days of the later of:
(i) the entry of the judgment or order be-
ing appealed; or
(ii) the filing of a notice of appeal by any
defendant.
The government must file its own notice of appeal to pursue
a sentencing increase following a conviction; it cannot piggy-
back on the defendant’s notice. Greenlaw, 554 U.S. at 252–53.
Here, the relevant timeline looks like this:
 February 28, 2018: The district court orally sen-
tenced Lee to 20 months in prison.
 March 11, 2018: Lee filed his first notice of appeal
and a Rule 35(a) motion to correct his sentence.
 March 14, 2018: The district court modified Lee’s
sentence to 12 months in prison and entered its
written judgment.
 March 28, 2018: Lee filed his second notice of ap-
peal.
 April 27, 2018: The government cross-appealed.
The government does not rely on the date of judgment un-
der Rule 4(b)(1)(B)(i). It cannot, as it filed its notice of appeal
45 days after the district court’s judgment. But what about
32 Nos. 18-1687 & 18-1950
Rule 4(b)(1)(B)(ii)? The government’s notice of appeal came
30 days after Lee’s second notice of appeal, but 48 days after
Lee’s first notice. Which of Lee’s notices triggered the govern-
ment’s deadline clock?
As with any matter of statutory interpretation, the text
controls. Cochise Consultancy, Inc. v. United States ex rel. Hunt,
139 S. Ct. 1507, 1512–13 (2019); see also SCALIA & GARNER,
supra, at 56 (“The words of a governing text are of paramount
concern, and what they convey, in their context, is what the
text means.”). Notably, Rule 4(b)(1)(B)(ii) refers to “a notice of
appeal by any defendant” rather than “the first notice of ap-
peal by any defendant.” That is important because the analo-
gous rule for civil cases triggers a party’s deadline to initiate
a cross-appeal on “the date when the first notice [of appeal]
was filed … .” FED. R. APP. P. 4(a)(3) (emphasis added). The
drafters could have used the same language for the criminal
rule, but they chose different words. We must respect that de-
cision and give such variations effect. Murphy v. Smith, 138 S.
Ct. 784, 787–88 (2018); see also SCALIA & GARNER, supra, at 170
(“[A] material variation in terms suggests a variation in mean-
ing.”).
Lee offers no persuasive reason to interpret “a notice of
appeal by any defendant” to mean “the first notice of appeal
by any defendant.” The text of the rule already contemplates
there may be multiple notices of appeal, and it allows the gov-
ernment to file its cross-appeal within thirty days of the “later
of” such notices. The only authority Lee offers, Cyrak v. Lemon,
919 F.2d 320 (5th Cir. 1990), is a civil case addressing Rule 4(a),
which expressly refers to the “first notice.” Rather than
simply analogize criminal cases to civil cases, as Lee asks us
Nos. 18-1687 & 18-1950 33
to do, we give effect to the different text of the different pro-
visions and apply the rules as written.
Rule 4(b) permits the government to file its notice of ap-
peal within thirty days of “a notice of appeal by any defend-
ant.” Lee timely filed “a notice of appeal” on March 28, 2018.
And the government filed its notice exactly thirty days later,
on April 27, 2018, so the government’s appeal is timely under
the plain meaning of FED. R. APP. P. 4(b)(1)(B)(ii).
3. In reducing Lee’s sentence, did the district court ex-
ceed its authority?
Now we arrive at the substance of the government’s cross-
appeal. The government claims district courts lack authority
to revisit advisory guideline calculations on a motion brought
under FED. R. CRIM. P. 35(a). It does not challenge the merits
of the district court’s ruling, only the court’s authority to
make it. Rule 35(a) states: “Within 14 days after sentencing,
the court may correct a sentence that resulted from arithmet-
ical, technical, or other clear error.”
In sentencing Lee, the district court struggled with how to
calculate the “loss” caused by Lee’s crimes for purposes of
U.S.S.G. § 2B1.1. Where the loss cannot be determined, the
Guidelines permit courts to look at the defendant’s gain as an
alternative. U.S.S.G. § 2B1.1 app. n. 3(B). The district court
originally found Lee’s gain to be the $180,392 in Recovery Act
funds paid to KTurbo by municipalities. That put Lee’s guide-
line range at 46–57 months, although the district court de-
parted down from that range and sentenced Lee to 20 months.
The district court abandoned that math on Lee’s Rule 35(a)
motion. Based on United States v. Giovenco, 773 F.3d 866, 871
(7th Cir. 2014), the court determined it needed to assess net
34 Nos. 18-1687 & 18-1950
profit, rather than KTurbo’s gross revenue, and that it lacked
the evidentiary record to do so. It therefore decided not to ap-
ply any sentencing enhancement based on Lee’s gain under
U.S.S.G. § 2B1.1. Using a guideline range of 12–18 months, the
court sentenced Lee to 12 months plus one day.
The government emphasizes that a district court’s author-
ity on a Rule 35(a) motion is “narrow.” As we have said, the
“Rule does not give the district court a second chance to exer-
cise its ‘discretion with regard to the application of the sen-
tencing guidelines,’ nor does it allow for changes to a sentence
based on the court’s change of mind.” United States v. Clark,
538 F.3d 803, 809 (7th Cir. 2008) (quoting FED. R. CRIM. P. 35
advisory committee’s note to 1991 amendments). Still, Rule
35(a) is not the straitjacket the government suggests. It does
allow district courts to correct “clear errors” and avoid waste-
ful appeals by fixing obvious sentencing issues. United States
v. Schenian, 847 F.3d 422, 424 (7th Cir. 2017). This extends to
clear errors that produce mistakenly high sentences. Id. If the
judge identifies an aspect of the sentence that is objectively
erroneous—whether on a factual matter or a point of law—
the judge may use Rule 35(a) to address the problem.
Here, the district court realized that its gain calculation
needed to assess net profit, not gross revenue, see Giovenco,
773 F.3d at 871, and that it lacked an evidentiary basis to do
so. It also determined nothing in the record showed how
much Lee personally gained from KTurbo’s sales. The govern-
ment bore the burden to establish a “loss” or “gain” under
U.S.S.G. § 2B1.1. United States v. Johns, 686 F.3d 438, 454 (7th
Cir. 2012). Sentencing Lee without a supporting evidentiary
record would have constituted clear error. Id. at 456–57. Rule
35(a)’s entire purpose is to correct errors otherwise destined
Nos. 18-1687 & 18-1950 35
to be reversed. Schenian, 847 F.3d at 424; Clark, 538 F.3d at 809.
The district court was thus well within its authority to modify
Lee’s sentence on his Rule 35(a) motion.
D. Restitution
Finally, we return to Lee’s appeal, specifically his chal-
lenge to the restitution ordered by the district court.
Under the Mandatory Victims Restitution Act, courts must
order restitution to any victim of “an offense against property
under this title, … including any offense committed by fraud
or deceit.” 18 U.S.C. § 3663A(c)(1)(A)(ii). The statute sets the
restitution amount at the value of the victim’s lost property
on the date of loss or the date of sentencing (whichever is
greater) minus the value of any returned property. 18 U.S.C.
§ 3663A(b)(1)(B); see also United States v. Malone, 747 F.3d 481,
485 (7th Cir. 2014).
On appeal, Lee objects to paying any restitution, denying
that any municipality sustained a loss. He acknowledges that
two municipalities, Mishawaka, Indiana and Redmond,
Oregon, paid KTurbo a total of $180,392 for turbo blowers
manufactured in South Korea. But Lee points out that the EPA
subsequently authorized Mishawaka and Redmond to con-
tinue using the KTurbo blowers without returning the Recov-
ery Act funds. So Lee argues neither municipality sustained
any loss: each paid for turbo blowers to use on its project, and
each received turbo blowers that it is using on its project.
But Lee waived this argument in the district court. The
probation office recommended the court order $180,392 in
restitution based on the sums paid by Mishawaka and
36 Nos. 18-1687 & 18-1950
Redmond.12 The government agreed with probation’s recom-
mendation. Despite the fact the district court held three
sentencing hearings, Lee failed to raise the issue of restitution,
even once. Lee failed to object in his written sentencing mem-
orandum, and he failed to raise the issue in his Rule 35(a) mo-
tion. Indeed, Lee’s entire argument regarding restitution in
the district court comprised two sentences in a supplemental
brief requested by the court on a different topic, with no cita-
tions to any statutory authority or case law supporting his po-
sition.13 That is insufficient to preserve an objection.
The closer question is whether Lee affirmatively waived
the restitution arguments he now pursues on appeal, or
whether he only forfeited them. Waiver requires the inten-
tional relinquishment of a known right, while forfeiture is a
mere accidental or neglectful failure to assert a right. United
States v. Hathaway, 882 F.3d 638, 641 (7th Cir. 2018). The dis-
tinction is important, as waiver precludes appellate review al-
together, while forfeited rights may be vindicated on appeal
through plain-error review. Id. In making this determination,
12 Neither of these municipal contracts served as a basis for any of the five
counts of wire fraud in the indictment. Ordinarily restitution is limited to
the losses caused by the specific conduct underlying the defendant’s con-
victions. United States v. Locke, 759 F.3d 760, 765 (7th Cir. 2014). But where
the offense “involves as an element a scheme, conspiracy, or pattern of
criminal activity,” such as the scheme to defraud necessary for a wire
fraud conviction, the applicable statute permits courts to award restitution
to “any person directly harmed by the defendant’s criminal conduct in the
course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663(a)(2).
13 In the district court Lee argued: “Since the loss amount is zero, the res-
titution amount is also zero. And the government’s motion to use Heon
Seok Lee’s bond deposit to pay restitution (Dkt # 239) should therefore be
denied.”
Nos. 18-1687 & 18-1950 37
we look to whether the defendant “chose, as a matter of strat-
egy, not to present the argument.” Id. (quoting United States v.
Garcia, 580 F.3d 528, 541 (7th Cir. 2009)).
After reviewing the extensive sentencing transcripts in
this case, we conclude Lee and his counsel made a strategic
decision to not press objections to restitution in the district
court, and thus waived the issue. The main event during the
sentencing was the loss calculation under U.S.S.G. § 2B1.1. Yet
restitution did come up. At the first hearing, Lee’s counsel in-
terjected, “I would also just note since restitution is brought
up—been brought up, that the restitution amount I don’t
think needs to be above 180.” Rather than argue the district
court should not order restitution because there was no loss,
as he does now, Lee asked the district court to not go above
the $180,392 figure recommended by the probation office.14
Although Lee did include a two-sentence objection to restitu-
tion in his supplemental memorandum before the second
hearing, he never raised the issue at the second hearing itself,
despite the prosecution addressing the topic. Lee never men-
tioned restitution in his Rule 35(a) motion. And, at the third
sentencing hearing, when the district court noted its intention
to enter the same $180,392 in restitution (despite reducing
Lee’s prison term on account of the government’s failure to
prove the loss amount), Lee’s counsel represented, “I think
that’s correct as to what should—what would be in the judg-
ment.” These repeated decisions to press other arguments,
and not address restitution, evinced a “tactical choice” on
14 Lee made this point in the context of a debate about whether the loss
figure under the Sentencing Guidelines should be the $1.6 million face
value of KTurbo’s Recovery Act contracts. Lee’s incentive to push the dis-
trict court toward a figure substantially lower than that was clear.
38 Nos. 18-1687 & 18-1950
Lee’s part, constituting waiver. United States v. Jin Hua Dong,
675 F.3d 698, 702 (7th Cir. 2012).
We realize there is some logical tension between the dis-
trict court’s restitution award, and its conclusion that it lacked
a sufficient evidentiary basis to determine victims’ “loss” for
purposes of U.S.S.G. § 2B1.1.15 But the appropriate forum for
addressing that issue was the district court in the first in-
stance. Calculating restitution in an atypical fraud case such
as this one is difficult, as the losses caused by a scheme to cir-
cumvent governmental purchasing preferences are “inher-
ently difficult to quantify.” United States v. Leahy, 464 F.3d 773,
794 (7th Cir. 2006). The district court was entitled to the bene-
fit of the parties’ best arguments on how restitution should be
calculated. By strategically choosing to forego his challenge to
the restitution figure in the district court, Lee waived the is-
sue: “A defendant cannot squirrel away objections, revealing
them only upon successive appeals.” Kuipers, 49 F.3d at 1258.
III. Conclusion
Heon Seok Lee repeatedly lied about where his company
manufactured its products in order to profit off a federal stim-
ulus package. Such a fraudulent scheme is wire fraud and
prohibited by 18 U.S.C. § 1343. To execute his scheme, Lee di-
rected his company to mislabel the country of origin for its
15 Although the restitution amount typically tracks the loss amount under
the Sentencing Guidelines, United States v. McGee, 612 F.3d 627, 635 (7th
Cir. 2010), courts must be careful not to confuse the two given the differ-
ences between the definitions of “loss” under U.S.S.G. § 2B1.1 and restitu-
tion under 18 U.S.C. § 3663A(b)(1)(B). United States v. Hussein, 664 F.3d
155, 161 n.2 (7th Cir. 2011) (“The amount of restitution does not always
correspond to guidelines loss because the rules for calculating each dif-
fer.”).
Nos. 18-1687 & 18-1950 39
products and attempt to import them with those incorrect
designations. This violated 19 U.S.C. § 1304(a) and the federal
prohibition against smuggling, 18 U.S.C. § 545, and evidence
supported the jury’s verdict on those counts. As to Lee’s sen-
tence, although the government timely appealed, the district
court did not exceed its authority when it revisited Lee’s sen-
tencing guidelines range and modified Lee’s prison sentence
accordingly. Finally, Lee waived any objection to how the dis-
trict court calculated restitution. We therefore AFFIRM the
judgment of the district court in full.