United States v. Robert Nelson , 774 F.3d 1104 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2648
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT G. NELSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 792 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED OCTOBER 8, 2014 — DECIDED DECEMBER 19, 2014
____________________
Before POSNER, FLAUM, and SYKES, Circuit Judges.
PER CURIAM. Robert Nelson was convicted of mail fraud,
18 U.S.C. § 1341, sentenced within the guidelines range to
66 months’ imprisonment, and ordered to pay about $2.6
million in restitution. Although the number of victims
exceeds 30, more than $1 million of the $2.6 million total loss
found by the district court was attributed to just three of
them. Those victims and their individual losses are at the
center of this appeal, in which Nelson argues that the district
2 No. 13-2648
court significantly overstated the total loss by crediting
unreliable evidence and failing to resolve discrepancies
between the parties’ positions on the victims’ losses. We
conclude that the record adequately supports the district
court’s findings, and thus we affirm the judgment.
Nelson entered into a plea agreement admitting that he
masterminded a Ponzi scheme in which he falsely promised
investors that he would put their money into real estate and
promptly earn them a significant return, sometimes as high
as 45%. According to the presentence investigation report,
Nelson’s investors lost approximately $2.597 million. Be-
cause that figure exceeds $2.5 million, the probation officer
recommended an 18-level increase to Nelson’s offense level,
resulting in a guidelines imprisonment range of 63 to
78 months. See U.S.S.G. § 2B1.1(b)(1)(J). Nelson conceded
that the loss was at least $1 million but disagreed that it had
reached $2.5 million. If, as Nelson asserted, the loss was
more than $1 million but shy of $2.5 million, then the in-
crease in offense level would have been 16 instead of 18,
see id. § 2B1.1(b)(1)(I), and the imprisonment range would
have dropped to 51 to 63 months.
The government and Nelson agreed about who was on
the list of victims. For all but three of the victims on that list,
they also agreed on amount of loss, which totaled approxi-
mately $1.5 million. So the district court’s choice between an
increase of 16 or 18 offense levels came down to three vic-
tims: 3G Developments, DKW Investments, and JNL Finan-
cial. According to the government, 3G lost $507,000; DKW
lost $372,000; and JNL lost $235,000. Nelson’s position was
that 3G lost $73,500; DKW lost $34,000; and JNL lost nothing.
No. 13-2648 3
For guidelines purposes the loss attributable to mail
fraud excludes money obtained by deception but then
returned before the crime was detected. Id. § 2B1.1 cmt.
n.3(E); United States v. Peugh, 675 F.3d 736, 741 (7th Cir.
2012), rev’d on other grounds, 133 S. Ct. 2072 (2013); United
States v. Brownell, 495 F.3d 459, 463–64 (7th Cir. 2007); United
States v. Snelling, 768 F.3d 509, 513–14 (6th Cir. 2014). The
parties agreed that Nelson had repaid $348,000 to 3G, but
they disagreed about the size of 3G’s investment. The gov-
ernment asserted that 3G invested $855,000; Nelson main-
tained that the figure was $421,500. Nelson’s bank state-
ments indeed documented $421,500 in transfers from 3G, but
the government asserted that the balance was paid in cur-
rency.
In support of that assertion, the government submitted
two receipts bearing the signatures of both Nelson and Steve
Galvin, 3G’s principal. The first receipt states, “I, Robert
Nelson, have received a total loan amount of $805,000 over
the past few years in various installments from
3G Developments and Steve Galvin.” The second receipt
states, “I, Robert Nelson, received a loan in the amount of
$50,000 from Steve Galvin.” The government also called
Galvin as a witness. Galvin testified that 3G had given
Nelson approximately $855,000—in principal investments,
excluding purported earnings that 3G allowed Nelson to
retain and reinvest—through “bank transfers” and “cash
transactions.” He also testified that Nelson had issued
promissory notes documenting the currency transactions.
Defense counsel argued that the government proved no
more than the $421,500 in deposits corroborated by Nelson’s
bank statements and also that the two loan receipts the
4 No. 13-2648
government submitted reflected accrued but unpaid
“interest upon interest upon interest,” which is excluded
from the calculation of loss. See U.S.S.G. § 2B1.1 cmt.
n.3(D)(i); Peugh, 675 F.3d at 741; United States v. Alexander,
679 F.3d 721, 731 (8th Cir.), cert. denied, 133 S. Ct. 379 (2012);
United States v. Kennedy, 554 F.3d 415, 419 (3d Cir. 2009);
but see United States v. Hsu, 669 F.3d 112, 122 (2d Cir. 2012).
The district court rejected these arguments, credited Galvin’s
testimony, and concluded that the government’s “documen-
tary exhibits and testimony” substantiated that 3G’s initial
investment was $855,000 for a net loss of $507,000.
Regarding DKW’s loss, the parties agreed on the amount
of the initial investment but disputed whether that entire
amount was procured by Nelson through fraud. The evi-
dence showed that DKW invested $938,000 and that Nelson
returned $566,000, but Nelson disputed whether the entire
investment related to the charged scheme. Christopher
Kuzlik, DKW’s owner, told investigators that the govern-
ment’s loss calculation of $372,000 ($938,000 less $566,000)
“sounded about right,” and the government submitted the
investigators’ memorandum detailing that interview. In
response defense counsel proffered that Kuzlik told him that
only “around $600,000” was related to the fraudulent
scheme and the rest concerned other deals in Kuzlik’s ongo-
ing business relationship with Nelson. But defense counsel
did not back up the proffer with evidence, so the district
court accepted the prosecutor’s loss figure, explaining that it
was substantiated by the “memorandum of interview show-
ing that during the relevant time period, DKW loaned the
defendant $938,000 relating to the scheme in this case.”
No. 13-2648 5
Finally, the parties agreed that JNL’s owner, Philip
Lagori, invested approximately $505,000 but thought that
Nelson had repaid him in full. The government maintained,
however, that $235,000 of that amount was not returned to
JNL but to Maxim Mortgage, another business owned by
Lagori, and that Nelson should not receive credit for pay-
ments to Maxim Mortgage because it was a distinct entity
from JNL. The district court accepted the government’s
argument.
The court then adopted the presentence report without
change, sentenced Nelson to 66 months in prison, and
ordered him to pay about $2.6 million in restitution to the
victims of his fraud.
On appeal Nelson argues that the district court violated
his right to due process by basing the loss amount on unreli-
able evidence and failing to resolve discrepancies in the
parties’ positions concerning losses suffered by 3G, DKW,
and JNL. We disagree.
“A defendant is entitled to have sentencing determina-
tions made based on reliable evidence rather than specula-
tion or unfounded allegations.” Warren v. Baenen, 712 F.3d
1090, 1104 (7th Cir. 2013); see United States v. England,
555 F.3d 616, 622 (7th Cir. 2009). The district court’s loss
findings are supported by reliable evidence. The court
accepted the government’s calculation of 3G’s loss because
that figure was substantiated by loan receipts and Galvin’s
testimony that 3G had given Nelson more than $400,000 in
addition to the amounts documented in bank statements.
Likewise, the court credited the government’s calculation of
DKW’s loss because the number was supported by the
investigators’ memorandum of an interview with Kuzlik.
6 No. 13-2648
(Although this memorandum is not part of the record on
appeal, Nelson’s appellate counsel assured us at oral argu-
ment that his predecessor had a copy at sentencing.) Finally,
the court sided with the government concerning JNL’s loss
because the government submitted a chart showing JNL’s
transactions with Nelson and proffered, without contradic-
tion from defense counsel, that Maxim Mortgage was unre-
lated to JNL.
The district court did not clearly err in crediting the gov-
ernment’s evidence despite Nelson’s insistence that Galvin
was an unreliable witness, that Kuzlik had inconsistently
reported the amount of his investment in the fraud, and that
Lagori may have used both JNL and Maxim Mortgage to
invest in the fraud. A loss calculation is clearly erroneous
only if it is “outside the realm of permissible computations.”
See United States v. Littrice, 666 F.3d 1053, 1060 (7th Cir. 2012)
(citation and internal quotation marks omitted). The district
court’s loss calculation has adequate evidentiary support
and is well within the realm of permissible computations.
Because the court did not clearly err in calculating the loss
amount, Nelson’s due-process argument also fails.
AFFIRMED.