United States v. Wheeler, James R. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1816
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES R. W HEELER,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Indiana, South Bend Division.
No. 06 CR 59—Robert L. Miller, Jr., Chief Judge.
____________
A RGUED A PRIL 15, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before C UDAHY, K ANNE and S YKES, Circuit Judges.
C UDAHY, Circuit Judge. A jury convicted James Wheeler
of embezzling, stealing or otherwise converting employee
contributions to his company’s health insurance and 401(k)
funds in violation of 18 U.S.C. §§ 669 and 664. The district
court sentenced him to concurrent 63 and 60 month
sentences and three years’ supervised release. On appeal,
Wheeler raises two challenges to his conviction. First, he
contends that the district court erred in defining the mens
2 No. 07-1816
rea element of the offense under § 669. He also argues that
the court admitted impermissible prior act evidence in
violation of Federal Rule of Evidence 404(b). In addition to
challenging his conviction, Wheeler challenges his sentence
on the grounds that the district court imposed an en-
hancement that lacked evidentiary support. We affirm
Wheeler’s conviction and sentence.
I. Background
James Wheeler is a former paper salesman with an
entrepreneurial streak. His enterprising spirit motivated
him to invest in several financially troubled printing
companies. By his account, he hoped to turn the com-
panies around and make a profit. A more cynical view,
advanced by the government, is that he used at least one
of the companies as a personal piggybank, paying himself
large managerial fees while the struggling company
failed to make good on its debts and obligations to its
employees. Wheeler’s conduct with respect to that com-
pany, Gallery Graphics, was the subject of the criminal
prosecution leading to this appeal.
Wheeler’s foray into the corporate turnaround business
began in 2001 when he purchased Hiney Printing, a family-
run business in Akron, Ohio. In April 2002, Wheeler leased
Fortran Printing (Fortran), another printing company
facing a doubtful financial future. That same year, Wheeler
and his business partner, James Lundquist, approached
First Business Capital (FBC) seeking financing to pur-
chase Peterson Printing, a medium-sized family-operated
company in South Bend, Indiana. Wheeler and Lundquist
No. 07-1816 3
reached an agreement with FBC under which Wheeler
would personally guarantee $900,000 of a $3,000,000 line
of credit from FBC and would contribute $200,000 of
paper stock as capital to Peterson Printing. After the
Peterson Printing sale closed in June 2002, Wheeler and
Lundquist became managers of the new venture, which
they renamed Gallery Graphics South Bend (Gallery
Graphics). The day-to-day operations at Gallery Graphics
were handled by its president, Michael Kile, and its chief
financial officer (CFO), Larry Parks. The financial situation
of Gallery Graphics declined quickly after the sale to
Wheeler. Wheeler had pledged to provide $200,000 of
paper stock pursuant to his agreement with FBC, but he
never did so. He withdrew $150,000 from Gallery Graphics
less than one month after purchasing the company,
ostensibly in order to purchase paper for the company.
Gallery Graphics never received the paper. The company
also paid him $148,000 in management fees and $28,000
to pay legal bills and credit card expenses. In early 2003,
FBC stopped funding Gallery Graphics due to Wheeler’s
repeated failure to fulfill promises to provide money and
paper to the company.
Beginning in December 2002, as Gallery Graphics’
financial situation grew increasingly precarious, Wheeler
became more involved in the day-to-day operations of
the company, directing Kile and Parks as to which bills
to pay. In early 2003, Wheeler directed Gallery Graphics
not to pay either the health or the retirement plan. But
employees who participated in the company health plan
authorized Gallery Graphics to withhold contributions
from their paychecks. Likewise, the contributions of
4 No. 07-1816
employees who participated in the company’s 401(k) plan
were automatically withheld from their paychecks. These
funds were placed in Gallery Graphics’ general operating
account and were supposed to be forwarded by check
to the insurance and retirement plans. Starting in 2003,
however, the funds that were withheld from employees’
paychecks to pay the premiums for those plans were
diverted for other purposes.
Based on the company’s nonpayment of premiums,
the health insurance company that carried the health
insurance plan cancelled the company’s coverage in
May 2003, retroactive to January 2003. In total, approxi-
mately $42,000 of employee health insurance contribu-
tions and $11,000 of employee 401(k) contributions that
had been withheld from employees’ paychecks never
reached the coffers of the respective plans. By late spring
of 2003, Gallery Graphics was on its last legs. On May 12,
2003, Wheeler wired $100,000 to the company to help fund
its final payroll. Two days later, on May 14, the health
insurance company sent employees a notice stating that
their insurance coverage had been cancelled. Around this
time, FBC installed a receiver and began liquidating
Gallery Graphics’ assets.
In May 2006, Wheeler was indicted for embezzling his
employees’ premiums. Count I of the indictment charged
him with knowingly and willfully embezzling $42,020.26
in health insurance premiums in violation of 18 U.S.C.
§ 669. Count II charged him with willfully embezzling
$11,702.53 of his employees’ 401(k) contributions in
contravention of 18 U.S.C. § 664. Wheeler’s jury trial
No. 07-1816 5
began on September 18, 2006. During the trial, the govern-
ment introduced evidence relating to Wheeler’s nonpay-
ment of employee contributions at Fortran. The evidence
showed that when Wheeler was in charge at Fortran,
insurance premiums were deducted from employees’
paychecks but were never remitted to the insurance plan,
resulting in cancellation of coverage. Ultimately, Fortran
went into receivership. The court permitted the introduc-
tion of this evidence (the Fortran evidence) over defense
counsel’s objection. After a five-day trial, the jury con-
victed Wheeler on both counts.
At sentencing, Wheeler objected to the amount of loss
calculation in the Pre-Sentence Investigation Report (PSR).
The amount of loss represented the sum of the unpaid
insurance premiums, unpaid 401(k) contributions and
medical claims that were incurred by employees but went
unpaid due to the cancellation of their health insurance
coverage. The PSR included in the loss amount all
unpaid medical claims from the time Wheeler acquired
Gallery Graphics in June 2002 through June 2003. Wheeler
objected to the inclusion of claims incurred by employees
in June 2003 on the grounds that the company “was
dissolved in late April, early May 2003.” The govern-
ment responded to his objection by suggesting that the
court use May 12, 2003 as the cut-off date. That is, the
government urged the court to include all unpaid claims
that arose prior to the date Wheeler funded the company’s
final payroll. The court accepted the government’s recom-
mendation as to the cut-off date. Using May 12, 2003 as the
cut-off date eliminated $3,073 from the amount of loss
figure in the PSR, yielding a total loss of $210,902.84. Under
6 No. 07-1816
the Sentencing Guidelines, a loss in excess of $200,000
corresponds to a twelve-level increase in a defendant’s
base offense level. U.S.S.G. § 2B1.1. After accounting for
adjustments to Wheeler’s base offense level, the district
court concluded that Wheeler’s total offense level was 26.
When considered alongside a criminal history category
of I, his offense level yielded a guideline range of 63 to 78
months’ incarceration. After reviewing the sentencing
factors set forth in 18 U.S.C. § 3553(a), the court sentenced
Wheeler to 63 and 60 months on Counts I and II respec-
tively, to be served concurrently, as well as three years’
supervised release and restitution of $210,902.84. Wheeler
filed a timely notice of appeal on March 28, 2007.
II. Analysis
Wheeler raises three challenges to his conviction and
sentence. First, he argues that the district court erred in
failing to instruct the jury that conduct done “knowingly
and willfully” under 18 U.S.C. § 669 must be done in
contravention of a known legal duty. Second, he con-
tends that the district court abused its discretion when
it permitted the government to introduce the Fortran
evidence. Finally, Wheeler argues that the court’s adop-
tion of the amount of loss included in the PSR is clearly
erroneous. We take up each of his challenges in turn.
A. Jury instructions
Wheeler contends that the district court erred in failing
to instruct the jury that in order to find Wheeler guilty, in
No. 07-1816 7
the statutory language, of “knowingly and willfully”
misappropriating his employees’ health insurance premi-
ums, they must conclude that he knew he was violating
the law. As a threshold matter, we must clarify the stan-
dard of review, which the parties dispute. The govern-
ment asserts that Wheeler did not object to the proposed
definition of “knowingly and willfully,” and thus our
review is for plain error. Wheeler protests that he did
challenge the definition, although he concedes that he
may have done so unartfully. In order to preserve an
objection to a proposed jury instruction for appellate
review, “a party must object to the instructions, ‘stating
distinctly the matter to which the party objects and the
grounds of the objection.’ ” United States v. O’Neill, 116 F.3d
245, 247 (7th Cir. 1997) (quoting FED. R. C RIM. P. 30). “The
purpose of Rule 30 is to alert the district court to
potential problems in jury instructions and thereby avert
any error in the first place.” Id.The district court did not define “knowingly and will-
fully” as a single defined term. Rather, after setting out
the elements of each offense, the district court provided
the jury with separate definitions of each term, defining
“knowingly” and “willfully” as follows:
The word “knowingly” means that the defendant
realized what he was doing and was aware of the
nature of his conduct, and did not act through igno-
rance, mistake, or accident. Knowledge may be proved
by the defendant’s conduct, and by all the facts and
circumstances surrounding the case.
When the word “willfully” is used in these instruc-
tions, it means that an act is done deliberately and
8 No. 07-1816
intentionally, as distinguished from something that is
merely careless, inadvertent, or negligent. Conduct
may be willful even if the actor had a good faith intent
to return the funds or had basically good intentions,
such as keeping the company afloat or preserving jobs.
Wheeler objected to the final sentence of the “willfully”
definition on the grounds that the defense had not sug-
gested that Wheeler had acted in good faith and conse-
quently, the sentence might confuse the jury. This objection
is substantively different from the objection Wheeler
now raises and could not be expected to focus the court’s
attention on the alleged error that Wheeler now seeks to
correct, namely that “knowingly and willfully” requires
proof that the defendant violated a known legal duty. See
Schobert v. Ill. Dep’t of Transp., 304 F.3d 725, 729 (7th Cir.
2002) (discussing sufficiency of objection under F ED. R.
C IV . P. 51 and explaining that “[t]he objection must be
specific enough that the nature of the error is brought
into focus”). Because Wheeler did not explain to the
district court the objection he raises on appeal, he has
not preserved it. Id. at 730. Thus, we review his claim for
plain error. United States v. Jackson, 479 F.3d 485, 491 (7th
Cir.), cert. denied, 128 S. Ct. 49 (2007).
Wheeler faces an uphill battle since it is rare that we
reverse a conviction on the basis of an improper jury
instruction to which there was no objection. Id; United
States v. Griffin, 84 F.3d 912, 925 (7th Cir. 1996) (“Our plain
error review is particularly light-handed in the context of
jury instructions.”). An error is “plain” if it was “(1) clear
and uncontroverted at the time of appeal and (2) affected
No. 07-1816 9
substantial rights, which means the error affected the
outcome of the district court proceedings.” United States
v. Fernandez, 282 F.3d 500, 509 (7th Cir. 2002).
18 U.S.C. § 669 provides:
Whoever knowingly and willfully embezzles, steals, or
otherwise without authority converts to the use of any
person other than the rightful owner, or intentionally
misapplies any of the moneys, funds, securities,
premiums, credits, property, or other assets of a health
care benefit program, shall be fined under this title
or imprisoned not more than 10 years, or both . . . .
Neither the parties nor this court have been able to
identify a case interpreting “knowingly and willfully” in
the context of § 669. “ ‘Willful[ ]’ . . . is a ‘word of many
meanings,’ and ‘its construction [is] often . . . influenced by
its context.’ ” Ratzlaf v. United States, 510 U.S. 135, 141
(1994) (quoting Spies v. United States, 317 U.S. 492, 497
(1943)). It may refer to a defendant’s “awareness of his
conduct (i.e., that it be intentional),” or to his “conscious
awareness of both his conduct and its illegality.” Griffin, 84
F.3d at 925. Where a defendant is accused of violating a
technical statute, such as a criminal tax statute or a statute
prohibiting the structuring of financial transactions,
“willfully” has been construed to require proof that the
defendant acted with knowledge that his conduct violated
a legal duty. See, e.g., Ratzlaf, 510 U.S. at 144-46 (structur-
ing); Cheek v. United States, 498 U.S. 192, 201 (1991) (viola-
tion of tax laws); United States v. Kelley, 864 F.2d 569, 573
(7th Cir. 1989) (same). Unlike the statutes at issue in Ratzlaf
10 No. 07-1816
or Cheek, § 669 is not the kind of technical statute that the
Supreme Court has found to be an “exception to the
traditional rule that ignorance of the law is no excuse.”
Bryan v. United States, 524 U.S. 184, 195 (1998) (internal
quotation marks and citation omitted). The prohibition
on stealing or converting employee health insurance
funds does not involve the kind of complex statutory
scheme at issue in the federal tax or structuring laws
that may create a trap for the unwary.
Still, there is some support for the argument that in
general, “willfully” means more than acting intentionally
when it is used conjunctively with “knowingly.” See United
States v. Ill. Cent. R.R. Co., 303 U.S. 239, 243 (1938) (“ ‘Will-
fully’ means something not expressed by ‘knowingly,’ else
both would not be used conjunctively.”) (citation omitted);
United States v. Stockheimer, 157 F.3d 1082, 1088 (7th Cir.
1998); United States v. Bates, 96 F.3d 964, 970 (7th Cir. 1996),
aff’d, 522 U.S. 23 (1997) (construing 20 U.S.C. § 1097(a), a
statute that makes it a crime to “knowingly and willfully”
misapply federally insured student loan funds, to
require proof that the defendant knew his conduct was
unlawful). In general, courts are reluctant to treat
statutory terms as “mere surplusage,” and the Supreme
Court has observed that “resistance should be
heightened when the words describe an element of a
criminal offense.” Ratzlaf, 510 U.S. at 140-41; see also Potter
v. United States, 155 U.S. 438, 446 (1894). Thus, there is a
plausible argument that the use of “knowingly and will-
fully” in § 669 may require that a defendant know that
his conduct was in some way unlawful.
No. 07-1816 11
Even if the court’s instruction on the mens rea element of
§ 669 may have been erroneous, in order for an error to
be “plain,” it must “be sufficiently certain and sufficiently
prejudicial that the trial judge and prosecutor were
derelict in countenancing it.” United States v. Caputo, 978
F.2d 972, 975 (7th Cir. 1992). Here, the absence of control-
ling case law on the question of § 669’s mens rea and the
fact that “ ‘[w]illfully’ is a notoriously slippery term,”
United States v. Ladish Malting Co., 135 F.3d 484, 487 (7th
Cir. 1998), weigh against the plainness of any error.
Moreover, even if the jury instructions were erroneous,
Wheeler cannot satisfy the third requirement of plain error
analysis, i.e., “that the error affected the defendant’s
‘substantial rights.’ ” United States v. Ross, 77 F.3d 1525,
1540 (7th Cir. 1996) (citation omitted). This prong of our
plain error analysis “calls for the same inquiry as ‘harm-
less error’ analysis, except that here the defendant bears
the burden of persuasion with respect to prejudice.” Id. As
applied to this case, in order to show that the alleged
error warrants reversal of his conviction, Wheeler must
show “that the jury verdict in this case was actually
affected by the district court’s faulty instruction.” Id. He
must establish that the error is “likely to have made a
difference in the judgment, so that failure to correct it
could result in a miscarriage of justice, that is, in the
conviction of an innocent person.” United States v.
Newman, 965 F.2d 206, 213 (7th Cir. 1992).
Although in general, the failure to instruct the jury
clearly on an element of the crime is plain error, this is
not always the case. See United States v. Kerley, 838 F.2d 932,
12 No. 07-1816
938 (7th Cir. 1988). “[T]he effect rather than the
character of an instructional error is what is important.”
United States v. Perez, 43 F.3d 1131, 1139 (7th Cir. 1994).
Wheeler contends that the court’s error created a presump-
tion as to the disputed element of intent. We disagree. The
dispute over intent at trial focused on whether Wheeler
knew that the premiums were not being remitted as
required. Rather than creating a presumption as to this
disputed issue, the instructions required the jury to find
that Wheeler knew that the premiums were not being
applied to pay for the company’s insurance coverage.
Moreover, the underlying acts themselves subsume a
finding of bad purpose. The jury was required to find
that Wheeler “did knowingly and willfully . . . embezzle,
steal, otherwise without authority convert to the use of
any person other than the rightful owner or intentionally
misapply” assets of the health insurance program. “Em-
bezzle” was defined as “the fraudulent appropriation
of property by one lawfully entrusted with its possession”
and “convert” as “the use of property in an unauthorized
manner or to an unauthorized extent.” Wheeler
essentially contends that the jury may have concluded
that he embezzled or converted without authorization
the employees’ premiums but that he thought doing so
was lawful. This seems rather implausible and is further
undermined by Wheeler’s own testimony. At trial, Wheeler
admitted that he knew the premiums were supposed to
be paid and claimed that he believed they were being
remitted. Thus, his own testimony evinces an awareness
of the wrongfulness of the failure to pay them. Assuming,
without deciding, that the court erred in its instruction
No. 07-1816 13
to the jury, its error was not so outrageous as to cast
doubt on the fairness, integrity or reputation of the pro-
ceedings and does not require remand for a new trial.1
B. Fortran evidence
Wheeler contends that the admission of the Fortran
evidence violated Federal Rule of Evidence 404(b). We
review the admission of prior act evidence for abuse of
discretion. United States v. Mallett, 496 F.3d 798, 801 (7th
Cir. 2007). “Rule 404(b) prohibits the use of evidence of
other bad acts to show that a defendant has a propensity
to commit a crime and that he acted in accordance with
that propensity on the occasion in question.” United States
v. Chavis, 429 F.3d 662, 667 (7th Cir. 2005). To ensure that
prior act evidence is not admitted to prove “the defen-
dant’s character or that he acted in conformity with that
character on a given occasion,” United States v. Ross, 510
F.3d 702, 713 (7th Cir. 2007), such evidence may be admit-
ted only if the following criteria are satisfied:
1
In a footnote in his opening brief, Wheeler invites us to
interpret “willfully” to require the violation of a known legal
duty as it applies to the entirety of Chapter 31 of the Criminal
Code and, in doing so, to vacate Wheeler’s conviction under
18 U.S.C. § 664. Wheeler does not provide any support or
argument for his suggestion that “willfully” as set forth through-
out Chapter 31 means the violation of a known legal duty.
We decline to take up a contention raised as a skeletal argu-
ment. APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d
624, 631 (7th Cir. 2002) (“[C]onclusory analysis will be con-
strued as waiver.”).
14 No. 07-1816
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity
to commit the crime charged; (2) the evidence shows
that the other act is similar enough and close enough in
time to be relevant to the matter in issue; (3) the
evidence is sufficient to support a jury finding that
the defendant committed the similar act; and (4) the
evidence has probative value that is not substantially
outweighed by the danger of unfair prejudice.
Mallett, 496 F.3d at 801. The district court permitted the
government to introduce evidence of the nonpayment of
employee health insurance premiums at Fortran in order
to show that Wheeler knew how insurance premium
withholdings must be handled and to show the absence
of mistake or accident. Wheeler concedes that the
Fortran evidence served these non-propensity purposes.
Wheeler argues that the Fortran evidence fails to satisfy
the second prong of our Rule 404(b) test because it was
not similar enough to his alleged conduct at Gallery
Graphics to be probative of knowledge or lack of mistake.
The similarity “prong of our Rule 404(b) analysis need not
be unduly rigid: we have stated that ‘when evidence is
offered to prove intent, the degree of similarity is
relevant only insofar as the acts are sufficiently alike to
support an inference of criminal intent.’ ” United States v.
Long, 86 F.3d 81, 84 (7th Cir. 1996) (quoting United States v.
Lloyd, 71 F.3d 1256, 1264-65 (7th Cir. 1995)) (emphasis in
original). Whether the prior conduct is similar enough to
the acts for which the defendant is being tried “depend[s]
on the theory that makes the evidence admissible, and
No. 07-1816 15
must be reached on a case-by-case basis.” Id. (quoting
United States v. Torres, 977 F.2d 321, 326 (7th Cir. 1992)).
Wheeler points out that he owned Gallery Graphics
for almost one year but only leased Fortran for approxi-
mately two months, and that the incident at Fortran
involved bounced checks rather than a complete failure
to attempt to send premiums to the insurance company.
These differences are “distinction[s] without substance.”
United States v. Jones, 455 F.3d 800, 809 (7th Cir. 2006)
(quoting United States v. Puckett, 405 F.3d 589, 597 (7th
Cir. 2005)). Wheeler also contends that he was much
more involved in the operations at Gallery Graphics
than at Fortran. The extent of his involvement in
Fortran was established in part by the testimony of Mark
Dottore, the individual who was appointed to be the
receiver for Fortran. Dottore testified that Wheeler con-
trolled the day-to-day operations at Fortran and that
funds withheld from Fortran employees’ paychecks to
pay their health insurance premiums stopped being sent to
the insurance company shortly after Wheeler leased
Fortran. In sum, at both Fortran and Gallery Graphics—
two companies controlled by Wheeler—employees’ health
insurance premiums were withheld from their pay-
checks but were never paid to the insurance company,
resulting in cancellation of the employees’ insurance
coverage. The events at Fortran and Gallery Graphics
are sufficiently similar to satisfy the second prong of our
Rule 404(b) analysis.
Wheeler also contends that there is insufficient
evidence to support a jury finding that he was responsible
16 No. 07-1816
for the mishandling of employee premiums at Fortran. To
satisfy the third prong of our Rule 404(b) analysis, the
government is not required to produce smoking gun
evidence of the defendant’s culpability in the prior con-
duct. The third prong is satisfied if the evidence
presented is such that “the jury can reasonably conclude
that the act occurred and that the defendant was the actor.”
Huddleston v. United States, 485 U.S. 681, 689 (1988); see also
United States v. Burke, 425 F.3d 400, 410 (7th Cir. 2005). As
we have noted, Dottore testified that Wheeler con-
trolled Fortran. Lundquist, Wheeler’s former partner,
testified that Wheeler directed the cash disbursements
at Fortran. Thus, even in the absence of direct evidence
that Wheeler ordered the nonpayment of premiums at
Fortran, the government adduced sufficient evidence
that a jury could reasonably find that he was responsible
for the nonpayment of premiums. The evidence was
properly admitted under the third prong of the test.
Finally, Wheeler argues that the prejudicial effect of
the evidence substantially outweighed its probative
value. It is significant to our analysis of the prejudice
prong that Wheeler refused a limiting instruction. We
have noted that the risk of unfair prejudice can be miti-
gated by a limiting instruction. See, e.g., Jones, 455 F.3d at
809 (limiting instructions “are effective in reducing or
eliminating any possible unfair prejudice from the intro-
duction of Rule 404(b) evidence”) (citation omitted); United
States v. Best, 250 F.3d 1084, 1093 (7th Cir. 2001). Wheeler
was twice offered a limiting instruction and twice
declined it. Because Wheeler waived the opportunity to
alleviate the risk of unfair prejudice, we decline to
No. 07-1816 17
reverse the district court’s evidentiary ruling on the
grounds that the Fortran evidence was unfairly prejudicial.
See Goetz v. Cappelen, 946 F.2d 511, 514 (7th Cir. 1991)
(defendants’ declination of limiting instruction waived
their claim of prejudice).
C. Amount of loss
Wheeler’s final challenge is to the district court’s amount
of loss determination, which we review for clear error.
United States v. Lopez, 222 F.3d 428, 436 (7th Cir. 2000).
A defendant who challenges a district court’s loss cal-
culation carries a heavy burden, for he must show “that the
calculation was not only inaccurate, but also outside the
realm of permissible computation.” United States v. Mantas,
274 F.3d 1127, 1131 (7th Cir. 2001). At his sentencing
hearing, Wheeler argued that because Gallery Graphics
closed down “in late April, early May, depending on what
you determine to be the final day,” it was inappropriate
to include medical claims that employees incurred after
the company closed down. After the company closed in
late April or early May, he reasoned, employees could not
reasonably expect their health insurance coverage to
continue into June.
Wheeler contends that the district court’s selection of
May 12, 2003 as the cut-off date for unpaid medical
claims was arbitrary. He asserts that Gallery Graphics
had closed its doors well before May 12, 2003. Although
the company’s former CFO, Parks, testified that the
facility stopped producing product toward the end of
April 2003 and closed, he also testified that he continued
18 No. 07-1816
to work with Wheeler to reopen the facility. In addition,
Parks testified that Wheeler told him that the 401(k) and
health insurance premiums would be paid once he ob-
tained funding. The company had a payroll date in May
2003 and Wheeler testified at trial that employees were
ready to walk out the door before he wired the $100,000
on May 12, suggesting that the company had not closed
for good as of that date. On May 14, 2003, the insurance
company gave employees notice that their coverage
had been cancelled. The court’s selection of a date two
days before that official notice was sent was a reasonable
estimate of the date after which no employee could
have reasonably believed he had insurance coverage.
Wheeler also argues that the evidence on which the
court relied did not support its loss determination. At
sentencing, the government introduced a spreadsheet that
showed the claims that were submitted to the health
insurance company and the dates of service for those
claims. Wheeler contends that this evidence is insuf-
ficient to support the amount of loss found by the
district court because the document did not list the
names of the employees who submitted claims. Wheeler
argues that some of these employees may have left the
company before they submitted claims and that it would
be unfair to include in the amount of loss calculation
claims an employee submitted after he was no longer
employed at the company, i.e., when he could not rea-
sonably expect to have insurance coverage through
Gallery Graphics. Wheeler does not cite any evidence
that supports his bare speculation and the court’s reliance
on evidence of employees’ claims that were accrued
No. 07-1816 19
before the insurance company cancelled coverage was not
“outside the realm of permissible computations.” United
States v. Radziszewski, 474 F.3d 480, 486 (7th Cir. 2007)
(quoting Lopez, 222 F.3d at 437).
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
9-2-08