United States v. Verna Pilon , 734 F.3d 649 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3159
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VERNA PILON,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 129 — Virginia M. Kendall, Judge.
ARGUED SEPTEMBER 19, 2013 — DECIDED OCTOBER 30, 2013
Before MANION, KANNE, and SYKES, Circuit Judges.
MANION, Circuit Judge. After eight witnesses had testified
at her jury trial, Verna Pilon pleaded guilty to five counts of
wire fraud in connection with a Ponzi scheme she ran with her
husband. At sentencing, the district court denied credit for
acceptance of responsibility, applied an enhancement for abuse
of a position of trust, and sentenced her to 78 months’ incarcer-
ation. On appeal, Pilon argues that the district court erred in
denying credit for acceptance of responsibility, in applying an
2 No. 12-3159
enhancement for abuse of a position of trust, and by ignoring
mitigation arguments that her attorney made at sentencing. In
addition to these procedural arguments, Pilon also argues that
her 78-month sentence was substantively unreasonable. We
affirm.
I. Factual Background
Through companies they operated and controlled, Verna
Pilon and her husband James Pilon offered two investment
opportunities: the “Mortgage Acceleration Program” and the
“Private Placement Program.” Pilon falsely represented that
the Mortgage Acceleration Program would generate significant
returns for investors on their money, such that she would pay
the investors’ monthly home mortgage payments going
forward, completely pay off the outstanding balance on the
investors’ mortgages within two years, and make a bonus cash
payment to investors at the end of the two-year period. Many
of the investors in the Mortgage Acceleration Program were
already financially struggling so they refinanced their mort-
gages to get the money necessary to invest in the program,
resulting in a higher monthly mortgage payment. With respect
to the Private Placement Program, Pilon falsely represented to
investors that she would invest their money in a high-yield
fund and that the investors would receive between a hundred
percent or more on their investments within 90 days or a
slightly longer period as a result of the Private Placement
Program.
Pilon roped in investors not just by the promise of returns,
but also by hinting at religious and humanitarian purposes.
Among her companies were “Prayer International” and “Owe
No. 12-3159 3
No One International Ministry.” Pilon perpetuated the Mort-
gage Acceleration Program by paying early investors’ mort-
gages with later investors’ money (a Ponzi scheme) and she
kept the Private Placement Program alive by telling the
investors that the program was generating significant returns
when it was not. Approximately forty people were lured by
Pilon into investing amounts ranging from $4,000 to $110,000.
Investors entrusted a total of $1,027,900 to the Pilons. The
investment programs were frauds; $967,702 of the investors’
funds were lost.
Pilon did not invest the money she received from her
investors, but instead used the money in a manner inconsistent
with her representations to investors. For instance, she used
the money to pay for a 2004 Cadillac Escalade, a $14,000
diamond ring, a $125,000 earnest money payment on a $21
million home in California (purportedly to use as a temple for
the Washitaw Nation), hotel stays, airline tickets, and to pay off
personal debt. In March 2005, the Illinois Department of
Securities ordered Pilon to cease offering investments; she
ignored the order. As was inevitable, Pilon’s programs
eventually unraveled. Her investors—at this point, vic-
tims—lost the money they had given her. Additionally, many
who had refinanced their mortgages to fund the investments
lost their homes.
Pilon was indicted for wire fraud on February 17, 2010.
Pilon was a member of a sovereign citizen movement called
the Washitaw Nation. As such, Pilon moved to dismiss the
indictment against her because she believed that she was not
subject to the laws of the United States or to the jurisdiction of
its courts. The motion was denied and a jury trial was set for
4 No. 12-3159
May 22, 2012. The morning of May 22, right before jury
selection was to begin, Pilon informed the district court of her
intent to plead guilty to the indictment. The district court
conducted a change of plea hearing, and began by informing
Pilon of her rights and explaining the statutory guidelines and
the maximum penalties. However, when the government
proffered the factual basis of her offense, Ms. Pilon denied
everything; she denied any knowledge of the fraud, she denied
making any representations to investors (stating instead that
she followed a script), and she denied knowing that any of the
representations were false. The district court told Pilon that she
had not admitted guilt and thus the court would not accept her
guilty plea. The court then proceeded to select a jury and
adjourned for the day.
On May 23, 2012, the district court convened for the first
day of Pilon’s jury trial. Before the trial began, Pilon’s attorney
informed the court that Pilon would like to “revisit a possible
change of plea,” but that the attorney thought it could wait
until lunch. The court advised Pilon that, to plead guilty, she
would have to admit facts that show guilt. Pilon requested to
speak, and the court advised her to consult with her attorney.
After speaking with Pilon, her attorney stated they would try
the plea at lunch. The parties proceeded to give their opening
statements to the jury and eight of the government’s wit-
nesses—victims of Pilon’s scheme—testified. No change of
plea was attempted at lunch. Instead, at the end of the day, the
court undertook a second change of plea hearing. The district
court again explained Pilon’s rights and the sentencing process,
and the government proffered the same facts, but this time
No. 12-3159 5
Pilon admitted to the scheme and successfully pleaded guilty
to the indictment.
On September 6, 2012, the district court held Pilon’s
sentencing hearing. In calculating Pilon’s guideline range, the
court applied an enhancement for abuse of a position of trust.
Pilon’s counsel stated that there was no objection to the
enhancement (as he had also represented in Pilon’s sentencing
memorandum). The district court also declined to credit Pilon
for acceptance of responsibility, finding that she did not accept
responsibility “until the 11th hour, and that it was not based on
true remorse but, rather, upon the reality that she would be
convicted.” After hearing the sentencing arguments, the court
sentenced Pilon to 78 months’ incarceration, within the middle
of the guideline range, and imposed $967,702 in restitution.
II. Discussion
On appeal, Pilon contends that the district court erred by
(1) denying credit for acceptance of responsibility; (2) applying
an enhancement for abuse of a position of trust; (3) failing to
adequately consider her mitigation arguments; and (4) sentenc-
ing her to a term of incarceration that is substantively unrea-
sonable.
A. Acceptance of Responsibility
We review the district court’s application of the guidelines
de novo and review its factual determinations for clear error.
United States v. Walsh, 723 F.3d 802, 807 (7th Cir. 2013). Our
precedent is clear that not accepting responsibility until the
eleventh hour is a sufficient reason for a district court to deny
a defendant credit for acceptance of responsibility. See United
6 No. 12-3159
States v. Redmond, 667 F.3d 863, 874 (7th Cir. 2012). Pilon clearly
pleaded guilty well past the eleventh hour, but she attempts to
skirt our holdings by contending that the district court’s denial
of credit was not based on the lateness of her plea, but rather
on a clearly erroneous finding of fact. See United States v.
Ritsema, 31 F.3d 559, 568 (7th Cir. 1994) (reversing where the
district court erroneously denied acceptance-of-responsibility
credit based on the defendant’s refusal to accept responsibility
for conduct that was not relevant to the conviction). Specifi-
cally, Pilon contends that the district court erred in finding that
she did not accept responsibility until after hearing the
testimony against her during the first day of trial.
At sentencing, Pilon’s attorney relayed to the court that
Pilon’s first attempt to plead guilty failed because she became
angry and upset at her husband when hearing the govern-
ment’s proffer of facts. He stated that Pilon knew that she had
inappropriately denied the facts, but that she was ready to
plead guilty the morning of May 23, before hearing the
testimony against her. Pilon’s attorney informed the court that
the only reason she did not plead guilty the morning of the
second day was to let the government proceed with its out-of-
town witnesses who were already present. Nevertheless, the
court stated:
I do think, from what I observed at the trial,
the fact that it was after the seven witnesses1
who testified each were bringing her closer
1
There were eight, not seven, witnesses, as clarified later by the district
court.
No. 12-3159 7
and closer into the ambit of the criminal
scope of activity that she was becoming more
and more aware that there was going to be a
conviction.
And so as much as I sympathize with your
challenges, I don’t think that she accepted
responsibility until the 11th hour, and that it
was not based upon true remorse but, rather,
upon the reality that she would be convicted.
Pilon contends that this finding was clearly erroneous
because she had decided to plead guilty, and conveyed that
decision to the court through her attorney, the morning of the
second day—before hearing any testimony against her.
This contention is meritless. The district court heard Pilon’s
argument about when she made the decision to plead guilty,
but nonetheless found, based on the court’s observations of
Pilon, that she pleaded guilty only after the testimony of her
victims made her face the reality of conviction, not because of
remorse. The district court is in the best position to make this
determination and, especially given that Pilon had decided to
plead guilty the day before, but then denied all the facts, the
court’s finding is not clearly erroneous.
B. Abuse of a Position of Trust
Pilon asserts that the district court applied too broad a
definition of “position of trust” and therefore erred in finding
Pilon occupied such a position. Pilon waived this argument
when her attorney stated explicitly on the record that there
were no objections to the abuse of trust enhancement and,
8 No. 12-3159
instead, focused her argument on acceptance of responsibility.
See United States v. Vasquez, 673 F.3d 680, 684 (7th Cir. 2012)
(“Forfeiture takes place when counsel or a defendant negli-
gently bypasses a valid argument. Waiver, on the other hand,
involves an intentional abandonment of a known right.”)
(citations omitted). The record shows that Pilon abandoned
any argument that the enhancement did not apply in the face
of an uphill battle for acceptance of responsibility credit. In
addition to stating that there were no objections to the en-
hancement at sentencing, Pilon’s sentencing memorandum
explicitly says, “The PSR has found that ‘… the defendant
abused a position of public or private trust, or used a special
skill, in a manner that significantly facilitated the commission
or concealment of the offense.’ Therefore, two levels are added
to the offense level. The defendant accepts this upward
adjustment.” Taken as a whole, these circumstances evince an
intent to abandon the argument that the enhancement did not
apply, and it is therefore waived.
Even if this argument was merely forfeited, application of
the enhancement was not plain error. The guidelines instruct
a district court that, if a defendant “abused a position of public
or private trust … in a manner that significantly facilitated the
commission … of the offense,” the court should increase the
offense level by two. U.S.S.G. § 3B1.3. In reviewing a decision
to apply the enhancement, we must consider “(1) whether the
defendant occupied a position of trust; and (2) whether his
abuse of the position of trust significantly facilitated the
crime.” United States v. Sierra, 188 F.3d 798, 802 (7th Cir. 1999).
Application Note 1 to § 3B1.3 clarifies that a position of “public
or private trust” is one characterized by “substantial discre-
No. 12-3159 9
tionary judgment that is ordinarily given considerable defer-
ence,” and, to clarify what is meant by discretion, the note
gives the example of “a bank executive’s fraudulent loan
scheme,” as opposed to “embezzlement or theft by an ordinary
bank teller.” Id. Further, Application Note 3 states that the
abuse of a position of trust enhancement “also applies in a case
in which the defendant provides sufficient indicia to the victim
that the defendant legitimately holds a position of private or
public trust, when in fact, the defendant does not.” Id. That
note provides the example of a “defendant who … perpetrates
a financial fraud by leading an investor to believe the defen-
dant is a legitimate investment broker.” Id.
Here, the record shows that Pilon held herself out to her
victims as operating and controlling the companies that offered
the investment programs, she represented that she had made
money for other individuals through the programs, and she
promised that if the investors would invest the necessary
funds, she would provide them with astronomical returns. Her
victims placed their money in her and her husband’s programs
and their faith in her and her husband’s management of the
programs. This faith was akin to the trust placed in any
investment manager or broker’s management of investments.
Further, the investors in the Mortgage Acceleration Program
relied on Pilon to make their home mortgage payments for
them from the investment proceeds.
The district court adopted the presentence report’s sum-
mary that Pilon “assumed a fiduciary duty in relation to those
investors by causing them to believe that they were entering
into a contractual agreement with the defendant's business
entities.” This is an apt summary; her victims entrusted their
10 No. 12-3159
money to her discretion, for their benefit. Pilon’s other argu-
ments on this enhancement do not require discussion as they
do not come close to demonstrating error—plain or other-
wise—in the district court’s application of the enhancement.
See Vasquez, 673 F.3d at 684-85 (“Under plain error review, the
court reverses only when there is: ‘(1) an error or defect (2) that
is clear or obvious (3) affecting the defendant’s substantial
rights (4) and seriously impugning the fairness, integrity, or
public reputation of judicial proceedings.’” (quoting United
States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010))).
C. Consideration of Mitigation Arguments
Pilon also argues that the district court did not adequately
consider her mitigation arguments in determining her sen-
tence. Specifically, Pilon argued that her poor health and the
burden her incarceration would have on her family called for
a lower sentence. While the sentencing guidelines are advisory,
the district court must apply the sentencing factors. United
States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007). Two such
factors that the court must consider are the “history and
characteristics of the defendant” and “the need … to provide
the defendant with needed … medical care … in the most
effective manner.” 18 U.S.C. §3553(a)(1); (a)(2)(d). However,
the district court “need not comment on every argument the
defendant raises.” Miranda, 505 F.3d at 792. Rather, “arguments
clearly without merit can, and for the sake of judicial economy
should, be passed over in silence.” United States v. Cunningham,
429 F.3d 673, 678 (7th Cir. 2005) “But when a court gives little
or no attention to the defendant’s principal argument when
that argument ‘was not so weak as not to merit discussion,’ we
cannot have confidence that the judge adequately considered
No. 12-3159 11
the section 3553(a) factors.” Miranda, 505 F.3d at 792 (quoting
Cunningham, 429 F.3d at 679). “Mitigating arguments about …
general hardships typically do not require any discussion at
all.” United States v. Gary, 613 F.3d 706, 710 (7th Cir. 2010).
However, “a sentencing court cannot summarily disregard a
defendant’s potentially meritorious argument as it relates to
extraordinary family circumstances.” Id. at 711. That is not
what happened here.
At the time of her sentencing, Pilon was 60 years old and
was suffering from sarcoidosis, asthma, an irregular heartbeat,
and fused vertebrae in her spine. She had growths in her eyes
that were causing pain and vision problems. Further, she had
two high school-age children, one of whom was 19 and had
cancer. With her husband also incarcerated, care for these
children was left to her eldest daughter, who had three
children of her own and was facing a divorce. Before sentenc-
ing, Pilon’s counsel filed a sentencing memorandum which
referenced an attached letter from Pilon containing this
information (the specifics of her illness were in her pre-
sentence report); this information was, however, a small part
of Pilon’s sentencing argument. At her sentencing hearing,
Pilon’s attorney’s argument focused almost entirely on her
loyalty to her husband, her loyalty to the Washitaw Nation,
and the claim that Pilon may have thought there was a chance
of returning the money to her investors. The hardship on her
family was only mentioned in passing at the beginning of her
counsel’s argument.
The district court was not persuaded by Pilon’s arguments
for leniency. After conducting an analysis of the sentencing
12 No. 12-3159
factors, and then pronouncing its sentence, the court further
explained:
I also note that some of the very same things
that you seek the Court to be sympathetic
regarding, for example, the fact that the
primary caregiver will now be imprisoned
and that there’s limited financial means for
your family, those were considerations that
you didn’t give to the victims in the case
earlier on when they were in limited financial
places.
This statement demonstrates that the district court consid-
ered Pilon’s arguments about her age, her role as caregiver,
and the hardship on her family, but found that these consider-
ations were outweighed by the need for her sentence to reflect
the seriousness of her offense. See 18 U.S.C. § 3553(a)(2)(A).
This court has recognized that a sick, young child who
requires special care presents an extraordinary family circum-
stance that the court must consider in selecting its sen-
tence—and a statement that the circumstance is the defen-
dant’s fault is not adequate consideration. United States v.
Schroeder, 536 F.3d 746, 756 (7th Cir. 2008). Nonetheless, Pilon’s
family hardship argument was not a major part of her sentenc-
ing strategy, and the district court gave consideration commen-
surate with the argument that was made. The district court
demonstrated that it had read her letter and considered her
family hardship, but thought that the circumstances did not
outweigh the seriousness of her offense. Cf. Schroeder, 536 F.3d
at 751 (holding that summarily blaming the family hardship on
No. 12-3159 13
the defendant was insufficient consideration where the
defendant made family hardship a focal point by providing
medical documentation, offering testimony about the family’s
hardship, and making the circumstances a key point of
argument at sentencing).
Further, by Pilon’s own admission, her older daughter has
cared for her son with cancer for some time. Her son is not a
minor. Cf. Schroeder, 536 F.3d at 750-51 (child was daycare age).
Further, when Pilon was finally arrested for her crime, she was
found in North Carolina (for medical reasons) far from her son
in Illinois. The district court adequately considered Pilon’s
mitigation arguments. See United States v. Diekemper, 604 F.3d
345, 355 (7th Cir. 2010) (“the fact that the district court ac-
knowledged this argument is dispositive—as long as a
sentencing court considers the arguments made in mitigation,
even if implicitly and imprecisely, the sentence imposed will
be found reasonable”); cf. Schroeder, 536 F.3d at 756 (holding
that a district court’s rejection of an argument for an inappro-
priate reason was error). Finally, Pilon’s arguments about her
health and age were not exceptional. See United States v.
Moreland, 703 F.3d 976, 991 (7th Cir. 2012) (“As for age and
infirmity, age 59 is not elderly in our society; the elderly do not
have a license to commit crime, and adequate medical care is
available in federal prisons.”) (citations omitted). While the
court is sympathetic to the tragedy of leaving the care of a son
with cancer to an already burdened family member, the district
court did not fail to adequately consider Pilon’s arguments.
14 No. 12-3159
D. Substantive Reasonableness of Pilon’s Sentence
Pilon’s last argument builds upon her mitigation arguments
by adding an argument that her personal characteristics and
low criminal history put her, statistically, at a very low risk of
recidivism, and all things considered a sentence of 78 months’
incarceration was substantively unreasonable. “A correctly
calculated, within-Guidelines sentence is entitled to a pre-
sumption of reasonableness.” United States v. Barnes, 660 F.3d
1000, 1010 (7th Cir. 2011). “To sustain the presumption, a
district court need provide only a justification for its sentence
‘adequate to allow for meaningful appellate review and to
promote the perception of fair sentencing.’” Id. (quoting United
States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009)).
Here, Pilon argues that her age and health, her family ties,
her nonexistent criminal history, and her statistically low
chance of recidivism make her sentence substantively unrea-
sonable. But the district court found that her crime was very
serious, and the fact that it involved “preying upon weak
people” who “were targeted for their vulnerability to be
gullible enough to think that this was going to save them
during some challenging times and, instead, it was exactly the
thing that pushed them over the cliff” was “an extremely
aggravating factor.” See 18 U.S.C. § 3553(a)(2)(A) (the court
must consider the need for the sentence “to reflect the serious-
ness of the offense, to promote respect for the law, and to
provide just punishment for the offense”). Moreover, while
Pilon argues from statistics about recidivism, the court as-
sessed her individually, and considering her refusal to recog-
nize the jurisdiction of the court and the laws of the United
States in the context of her loyalty to her husband and the
No. 12-3159 15
Washitaw Nation found that Pilon was “someone who is prone
to recidivism and not acceptance, someone who is prone to
hiding the reality of the situation rather than accepting the
remorseful reality of it.” Finally, the district court noted that
Pilon’s scheme:
went on for a period of years, it had a broad
base with numerous victims, [and so it]
requires a sentence that will both be a sanc-
tion for the defendant as well as a message to
others who would consider such a scheme,
that they shouldn’t do it, because the sen-
tence will be one that is serious enough to
deter the conduct of others in the future.
Accordingly, the district court believed that Pilon’s sen-
tence was justified by the need for general and special deter-
rence and because of the seriousness of her offense. The district
court’s findings and rationales were not erroneous and they
provide a sufficient justification for Pilon’s presumptively
reasonable sentence.
III.
For the foregoing reasons, Pilon’s sentence is AFFIRMED.