United States v. Victoria Biks ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-3754 & 07-3781
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARJORIE V ENTURELLA
and V ICTORIA B IKS,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 168—John C. Shabaz, Judge.
A RGUED N OVEMBER 4, 2008—D ECIDED O CTOBER 27, 2009
Before B AUER, F LAUM, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Victoria Biks and Marjorie
Venturella pled guilty to one count of mail fraud and
agreed to pay a criminal forfeiture money judgment and
restitution. They now claim that the forfeiture amount
should have been limited to the amount of the mailing in
the count of conviction, and that anything higher was
tantamount to an illegal sentence. After reviewing the
2 Nos. 07-3754 & 07-3781
record, we find no error in the forfeiture calculation. The
mail fraud count that the defendants were convicted of also
alleged a broader scheme to defraud numerous govern-
ment agencies of hundreds of thousands of dollars in
benefits. As a result, the forfeiture is not limited to the
amount of the particular mailing but extends to the
entire scheme. Biks also argues, separately, that she
should not have to pay the full restitution amount
because the loss figures stated in the Presentence Report
(“PSR”) were inaccurate, and that restitution should be
offset by the amount of the forfeiture to avoid a potential
double recovery and double jeopardy. We reject Biks’s
challenges to the loss figures used in calculating
restitution because she withdrew her objections to the
PSR during sentencing and waived her right to raise
those same challenges on appeal. Finally, we find nothing
amiss in imposing forfeiture and restitution because
restitution is not a criminal penalty that implicates double
jeopardy, and Biks has not alleged that the victims in this
case are also the recipients of the forfeiture, so there is no
possibility of double recovery. Therefore, we affirm Biks’s
and Venturella’s sentences.
I. BACKGROUND
On August 22, 1980, Victoria Biks gave birth to Paul
Venturella, during which he sustained a number of inju-
ries. Paul suffered from permanent brain damage, cerebral
palsy, epilepsy, lesion of facial nerves, loss of motor power,
and loss of sensory perception all because, the defendants
allege, the doctor used forceps to extract him at birth. The
Nos. 07-3754 & 07-3781 3
injuries left Paul completely disabled and unable to
function without full-time care. As a result, Paul’s family
filed a medical negligence suit, which the parties settled
for $1,237,000.
The Circuit Court of Cook County, Probate Division, had
appointed Harris Trust and Savings Bank as guardian
of Paul’s estate, and the proceeds from the settlement
were deposited with the bank into a trust fund with
instructions to disburse $2,500 a month for Paul’s care
and maintenance. The court also instructed the bank to
distribute: $100,000 to Joseph and Marjorie Venturella
(Paul’s maternal grandparents), and $50,000 to Victoria
Biks, Paul’s mother, to compensate them for services
related to Paul’s care; $50,000 to Biks for expenses made
on Paul’s behalf; and $20,000 to Biks to purchase a bed and
van for Paul (based on 1983 prices).
The government alleged that Biks and her mother
committed mail fraud by obtaining government benefits
for Paul’s care, without disclosing that Paul’s trust fund
had already disbursed funds for the same purpose. Biks
and Venturella applied for various federal and state
social security benefits, including: Supplemental Security
Income (“SSI”) from the Social Security Administration
(“SSA”), a federal cash assistance program for disabled
persons, among others, that was only available to those
with assets worth less than $2,000; Wisconsin Supplemen-
tal Security Income, which had similar requirements to the
federal program; and Medicaid. They obtained these
benefits by falsely representing that Paul was indigent,
4 Nos. 07-3754 & 07-3781
hiding the fact that Paul had a sizable estate in Illinois as
a result of his $1,237,000 settlement.
A grand jury returned an indictment against the defen-
dants on September 14, 2006, charging them with 30
counts of mail fraud, in violation of 18 U.S.C. § 1341. Biks
was charged with two additional counts of social security
fraud, in violation of 42 U.S.C. § 1383(a)(3), and Venturella
with one count. The indictment also included a forfeiture
charge against both defendants for two mail fraud
schemes: $114,313 for counts 1-26, and $301,491 for
counts 27-30. The defendants entered into a plea agree-
ment, and pled guilty to Count One, which stated that
they received a SSI check for $477.90 from the Social
Security Administration that was mailed to Biks “for the
purpose of executing [the mail fraud] scheme.” The rest of
the counts, to which the defendants did not plead, listed
similar mailings, all for the purpose of executing the
scheme as well. The defendants also agreed to a criminal
forfeiture judgment of $114,313, and to pay restitution
with the amount to be agreed upon by the parties or
determined by the court.
Before sentencing, however, Biks and Venturella objected
to the fraud loss and restitution calculations in the
Presentence Report (“PSR”), citing mathematical errors and
a lack of evidentiary support for the computations. The
probation office issued a PSR Addendum which corrected
the mathematical errors, and the government filed a
sentencing memorandum with fifteen exhibits providing
additional evidentiary support for the loss calculations.
Both defendants withdrew their objections. The district
Nos. 07-3754 & 07-3781 5
court sentenced Biks and Venturella to twenty-four
months’ imprisonment, but stayed Venturella’s term of
incarceration until Biks was released from custody. The
court also ordered the defendants to pay $391,740 in
restitution jointly and severally, and issued a criminal
forfeiture money judgment of $114,313 against each
defendant. Biks and Venturella both appeal the court’s
forfeiture calculation, and Biks also appeals the restitution
order.
II. ANALYSIS
A. Forfeiture Calculation
The government sought forfeiture under 18 U.S.C.
§ 981(a)(1)(c) and 28 U.S.C. § 2461(c). Section 2461 “autho-
rizes criminal forfeiture of the proceeds of any offense
for which there is no specific statutory basis for criminal
forfeiture as long as civil forfeiture is permitted [for
that offense].” United States v. Sivilious, 512 F.3d 364, 369
(7th Cir. 2008). We have recognized that section 981(a)(1)(c)
permits civil forfeiture of the proceeds of basic mail fraud,
see id., and, as a result, the government may seek criminal
forfeiture for this offense under section 2461(c). See
Silvious, 512 F.3d at 369 (citing United States v. Vampire
Nation, 451 F.3d 189, 200 (3d Cir. 2006)); see also United
States v. Jennings, 487 F.3d 564, 584 (8th Cir. 2007).
Although the defendants recognize that they agreed to
pay $114,313 in forfeiture in their plea agreements, they
now claim that the penalty is excessive. The defendants
argue that a criminal forfeiture must be limited to the
6 Nos. 07-3754 & 07-3781
amount associated with the count of conviction. They both
pled guilty to Count One, which, according to the defen-
dants, only alleged fraud for the mailing of a check for
$477.90 from the Social Security Administration. As a
result, the defendants believe that the district court
erred by imposing forfeiture for a larger amount, and that
it is tantamount to an illegal sentence which we can
correct on appeal despite the terms of the plea agreement.
See United States v. Gibson, 356 F.3d 761, 766 (7th Cir. 2004)
(“[E]ven when a defendant, prosecutor, and court agree
on a sentence, the court cannot give the sentence effect if
it is not authorized by law.”). Because the defendants did
not raise this objection in the district court, however, we
review the forfeiture calculation for plain error. See id.
at 765.
From the structure of the indictment, it is clear that
Counts One through Twenty-Six each allege a mail fraud
scheme. The indictment begins with the heading “Counts
1-26,” and the subheading “Background.” It then sets out,
in numbered paragraphs, the factual background and
general allegations of the entire scheme, starting from the
date of Paul’s birth, up to the Sawyer County
Guardianship proceedings. Following the factual back-
ground and general allegations, the indictment provides
a chart that specifies the mailings corresponding with each
count, which the defendants made “for the purpose of
executing” the fraudulent scheme. In other words, each
count, from one through twenty-six, alleges that the
defendants obtained over $267,000 from their scheme to
defraud various government agencies, and each mailing
Nos. 07-3754 & 07-3781 7
was a separate act in furtherance of that scheme. The
government need not prove each instance of mail fraud
in order to demonstrate that the defendants participated
in a fraudulent scheme; rather, “the mailings need only be
‘incident to an essential part of the scheme’ or a ‘step in
[the] plot.’ ” United States v. Mooney, 401 F.3d 940, 946 (8th
Cir. 2005) (citing Schmuck v. United States, 489 U.S. 705, 710
(1989)). The defendants pled guilty to one count of mail
fraud that also alleged a fraudulent scheme, and the
amount of the mailing, by itself, does not adequately
account for the proceeds obtained from their crime of
conviction.
Furthermore, contrary to the defendants’ claims, forfei-
ture is not limited solely to the amounts alleged in the
count(s) of conviction. 18 U.S.C. § 981(a)(1)(C) authorizes
forfeiture for “[a]ny property, real or personal, which
constitutes or is derived from proceeds traceable to” the
commission of certain specified offenses, including mail
fraud. 18 U.S.C. § 981(a)(2)(A) defines “proceeds” as
“property of any kind obtained directly or indirectly, as
the result of the commission of the offense giving rise
to forfeiture, and any property traceable thereto, and is
not limited to the net gain or profit realized from the
offense.” The plain language of the section 981(a)(1)(C)
along with the expansive definition of “proceeds” indicates
that the statute contemplates the forfeiture of property
other than the amounts alleged in the count(s) of convic-
tion.
We have also interpreted other statutes authorizing
forfeiture to include the total amount gained by the crime
8 Nos. 07-3754 & 07-3781
or criminal scheme, even for counts on which the defen-
dant was acquitted. See United States v. Genova, 333 F.3d
750, 762-63 (7th Cir. 2003) (noting that a defendant who
was convicted of violating RICO, but was acquitted of
certain counts, was still eligible for a forfeiture based on
those activities). For instance, in United States v. Baker, 227
F.3d 955 (7th Cir. 2000), the defendant was convicted of
fifteen counts of money laundering based on a number
of credit card transactions totaling $2,950. The district
court, however, ordered the defendant to forfeit $4.4
million, which included the proceeds from the defendant’s
“adult” businesses. Id. at 959. We affirmed the district
court ruling because all of the funds from the defendant’s
illicit businesses were laundered, which made them
eligible for forfeiture, id. at 969, and “just as the amounts of
the specific credit card transactions [did] not limit
[the defendant’s] relevant conduct, they [did] not limit
the amount of property that [was] forfeitable.” Id.; see
also United States v. Trost, 152 F.3d 715, 721 (7th Cir. 1998)
(upholding forfeiture of $57,412 even though the
five convicted counts only alleged that defendant laun-
dered $23,000).
The defendants cite United States v. Garcia-Guizar, 160
F.3d 511 (9th Cir. 1998), and United States v. Cherry, 330
F.3d 658 (4th Cir. 2003), in support of their argument that
the forfeiture should be limited to the amount of the
single mailing. Their reliance on these cases is misplaced.
In Garcia-Guizar, the defendant was charged with
multiple drug offenses, and the government sought the
forfeiture of $43,070 found during a search of the defen-
dant’s storage locker. Garcia-Guizar, 160 F.3d at 515-16. In
Nos. 07-3754 & 07-3781 9
vacating the criminal forfeiture verdict (for the entire
amount found in the locker), the Ninth Circuit held that
aside from the $4,300 used by law enforcement in under-
cover drug transactions, the government provided no
evidence that the other funds were proceeds from the
drug offenses for which the defendant was convicted. Id.
at 518. In other words, had the government presented
evidence to show that the rest of the money came from
drug transactions, those additional amounts too may
have been forfeitable. The difference here is that we are
not concerned with the sufficiency of the evidence. The
defendants already pled guilty to a mail fraud scheme that
netted them proceeds in excess of $267,000, and nothing
in Garcia-Guizar suggests that forfeiture is limited to
the amounts specified in the counts of conviction. Nor
does Cherry provide any support for the defendants’
claims. The court in Cherry vacated the forfeiture
judgment only because it had vacated the conviction
upon which the forfeiture was based. Cherry, 330 F.3d at
670. Since the mail fraud conviction remains the basis
for the forfeiture in this case, Cherry does little to
advance the defendants’ claims. We find no error in the
district court’s forfeiture calculation.
B. Restitution Calculation
Defendant Biks argues separately that the restitution
calculation is inaccurate due to a number of inconsistencies
in the evidence. Biks points to discrepancies between the
total unauthorized payments calculated in the PSR and
the calculations in the PSR Addendum. For example, the
10 Nos. 07-3754 & 07-3781
PSR states that the amount of SSI paid out was $110,918,
but the addendum lists this amount as $100,918; and
the amount of state SSI subject to restitution was $13,395
in the PSR but only $12,825 in the addendum. Biks
also claims that the PSR contains additional conflicting
information about the number of unauthorized monthly
payments for Ensure that Venturella received, and over-
estimated the total loss by $136 (approximately one
month’s payment).
The government contends that Biks has waived this
argument and we agree. Waiver is the intentional relin-
quishment or abandonment of a known right, and forfei-
ture is the failure to make a timely assertion of a right.
United States v. Irby, 558 F.3d 651, 655 (7th Cir. 2009) (citing
United States v. Olano, 507 U.S. 725, 733 (1993)) (quotations
ommitted). The waiver of a right precludes appellate
review, but when the right is merely forfeited, we may
review the district court ruling for plain error. Id. Before
sentencing, Biks filed objections to the PSR challenging
the loss and restitution calculations. She later withdrew
these objections in a revised sentencing memorandum
and reiterated during sentencing that she agreed with
the figures in the PSR Addendum. The government opines
that Biks withdrew her objections to improve her
chances of obtaining a sentencing reduction for acceptance
of responsibility. And the timing of Biks’s attorney’s
statement to the court (reiterating that Biks had withdrawn
her objections) in response to the sentencing judge’s
statement concerning sentencing reductions for “admission
of relevant conduct,” certainly supports the government’s
argument. See United States v. Brodie, 507 F.3d 527, 532 (7th
Nos. 07-3754 & 07-3781 11
Cir. 2007) (finding waiver where defense counsel had
strategic reasons for not raising additional objections to the
PSR).
Notwithstanding what may have been Biks’s strategy to
obtain an acceptance of responsibility reduction, we
have recognized that the withdrawal of an objection
generally results in a waiver of that argument on appeal.
See, e.g., United States v. Cunningham, 405 F.3d 497, 502 (7th
Cir. 2005) (finding that withdrawal of objection to admis-
sion of photos resulted in a waiver of the argument that
the government had failed to set forth sufficient
foundation for the evidence); United States v. Scanga, 225
F.3d 780, 783 (7th Cir. 2000) (finding waiver where defen-
dant first objected to PSR calculations but withdrew
objection after calculations were revised in PSR adden-
dum); United States v. Redding, 104 F.3d 96, 99 (7th Cir.
1996) (finding waiver where defendant objected to the
calculations before sentencing, but accepted them
during the sentencing hearing); see also United States v.
Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (“[A] party
who identifies an issue, and then explicitly withdraws
it, has waived the issue.”). Biks objected to the PSR,
later withdrew her objections, and has not identified
any valid reason why we should treat her case differently
from the examples above. Therefore, we decline to review
the forfeiture calculations on appeal.
C. Imposing Restitution and Forfeiture
Biks next argues that imposing restitution and forfeiture
for the same crime is an improper double payment,
12 Nos. 07-3754 & 07-3781
which constitutes double jeopardy. But she did not
raise this argument before the district court so we review
her sentence for plain error. Gibson, 356 F.3d at 765.
We have rejected the theory that forfeiture and
restitution cannot be imposed for the same offense. See, e.g.,
United States v. Leahy, 464 F.3d 773, 793 n. 8 (7th Cir. 2006)
(“[T]o the untrained eye, this might appear to be a
‘double dip,’[but] restitution and forfeiture serve different
goals . . .”); United States v. Emerson, 128 F.3d 557, 566-67
(7th Cir. 1997) (rejecting the defendant’s argument that
imposing forfeiture and restitution amounted to “double
punishment”). Still, Biks contends that these cases were
wrongly decided, and cites an Eighth Circuit case, United
States v. Ruff, 420 F.3d 772 (8th Cir. 2005), in support of her
argument that the overlap of the forfeiture and restitution
amounts constitute double jeopardy and an improper
double payment.
Ruff presented a unique situation where restitution,
which normally goes to the victim, was payable to a law
enforcement agency. Ruff, 420 F.3d at 775. The defendant
argued that the agency would also receive the proceeds
from the forfeiture proceedings, thus creating double
recovery. Id. As a result, the court remanded the case to the
district court to determine whether the law enforcement
agency received any of the forfeited funds, and, if so, to
modify the restitution order to prevent double recovery.
Id. at 776. Ruff did not question the district court’s author-
ity to impose restitution and forfeiture; rather, the court
was solely concerned with preventing double recovery
for the law enforcement agency.
Nos. 07-3754 & 07-3781 13
As we noted in Emerson, “forfeiture seeks to punish a
defendant for his ill-gotten gains by transferring those
gains . . . to the United States Department of Justice
[“DOJ”],” 128 F.3d at 567-68, while restitution seeks to
make the victim whole—in this case, the federal and
state agencies that the defendants defrauded. Id. The
victims here are separate entities from the DOJ, and Biks
has not identified any real threat of double recovery.
Furthermore, outside the rare occasion where the
same party stands to benefit from both payments, Biks
does not cite to any authority which holds that restitu-
tion must be offset by the forfeiture amount. Contra
United States v. Hoffman-Vaile, 568 F.3d 1335, 1344 (11th
Cir. 2009) (rejecting defendant’s argument that forfeiture
should be reduced because she paid restitution); United
States v. Bright, 353 F.3d 1114, 1123 (9th Cir. 2004) (rejecting
argument that district court should have “offset his
forfeited funds against his restitution obligation”). We
see no reason to overrule Emerson, therefore we find no
error in the district court’s forfeiture and restitution order.
III. CONCLUSION
For these reasons, we A FFIRM the defendants’ sentences.
10-27-09