United States v. William Marr ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2204
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM P. MARR, also known as
BILL MARR, JR.,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 24 — Rubén Castillo, Chief Judge.
ARGUED FEBRUARY 19, 2014 — DECIDED JULY 29, 2014
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. A jury found William P. Marr, also
known as Bill Marr, Jr. (“Marr”), guilty of six counts of wire
fraud. Marr appeals his conviction, arguing that he did not
receive a fair trial because the government relied upon im-
proper propensity evidence to convict him, and that three jury
instructions incorrectly explained the law. He also contends
2 No. 13-2204
that the district court lacked the authority to order restitution.
For the reasons that follow, we affirm.
I. BACKGROUND
In July 2000, William C. Marr, the defendant’s father,
founded Equipment Source USA, LLC (“Equipment Source”),
which sold used forklifts. The defendant Marr managed
forklift sales and daily operations for the family business.
Marr advertised forklifts for sale online and sold them online
or over the phone.
In April 2001, the defendant’s father opened a checking
account for Equipment Source at Palos Bank and Trust1 (“Palos
Bank”) and named Marr as a signatory. In January 2002, the
defendant’s father opened a second account at Palos Bank, a
merchant account, which allowed Equipment Source to process
credit card transactions. Marr was a signatory on the merchant
account as well. Checks withdrawn from these accounts are at
the heart of Marr’s propensity argument.
From 2001 to 2003, Marr used Equipment Source to sell
forklifts that he never actually owned or possessed. Marr’s
modus operandi was to advertise forklifts for sale online,
collect credit card payments from out-of-state customers, and
then purport to deliver the product without ever doing so.
When customers did not receive the forklifts they ordered,
they would contact Marr. Typically, a customer would com-
1
Palos Bank and Trust Company closed on August 13, 2010, when it was
acquired by First Midwest Bank. Federal Deposit Insurance Corporation, Failed
Bank List, http://www.fdic.gov/bank/individual/failed/banklist.html (Last
visited July 18, 2014).
No. 13-2204 3
plain that he received an invoice and a notice of shipment, and
that Equipment Source charged his credit card, but that he
never actually received the forklift he ordered. While Marr
gave varying explanations to his unhappy customers, he rarely
refunded their money or delivered the forklifts. Instead, his
customers were forced to contact their credit card companies
to dispute the charges. A customer’s credit card company
would then send notice of the dispute to Palos Bank, where the
customer’s payment was sent. Next, Palos Bank would notify
Equipment Source that a customer disputed a charge and
would request a response. Sandra Lecik handled all of the
credit card disputes at Palos Bank, and she dealt exclusively
with Marr when there were issues raised by Equipment Source
customers. If Marr did not respond or the inquiry was resolved
in the customer’s favor, Palos Bank refunded the amount of the
original charge back to the customer’s credit card account by
debiting Equipment Source’s merchant account. When this
occurred, it was called a “chargeback.”
In 2002, Thomas Hullinger, Senior Vice President at Palos
Bank, noticed a high incidence of chargebacks on Equipment
Source’s merchant account. Hullinger estimated that forty
percent of Equipment Source’s credit card transactions in 2002
resulted in chargebacks. The other 300-350 merchant accounts
at Palos Bank had chargeback rates of less than two percent the
same year.
In June 2002, Mr. Hullinger met with Marr to discuss the
excessive chargebacks on the Equipment Source merchant
account. The two men discussed Palos Bank’s requirement that
Equipment Source ship its products prior to charging its
customers’ credit cards. Marr said he would comply with Palos
4 No. 13-2204
Bank’s requirement, but the high rate of chargebacks contin-
ued. From July through October 2002, the chargebacks on
Equipment Source’s merchant account totaled almost $200,000.
At the end of October, Mr. Hullinger called a second meeting,
this time with both Marr and his father. He informed them that
they must maintain a reserve of over $90,000 in their merchant
account to cover any overdrafts and must provide proof of
delivery before Palos Bank would release funds from the
credit card sales into their account.
Equipment Source failed to maintain the required reserve,
so Palos Bank froze the company’s accounts a few days after
the second meeting. Nevertheless, chargebacks from custo-
mers continued to be debited from the merchant account.
In November, twenty-eight chargebacks occurred, totaling
$153,930. Palos Bank applied the approximately $40,000
remaining in the merchant account to the balance. In Decem-
ber, another twenty-eight chargebacks occurred, totaling
$172,697; Palos Bank applied the approximately $13,000
remaining in Equipment Source’s checking account to the
negative balance. The final balance of Equipment Source’s
checking account was zero and the final negative balance of
Equipment Source’s merchant account was $328,881.89—a loss
that Palos Bank paid to Equipment Source customers. Palos
Bank mailed Marr a letter requesting payment for the loss, but
no payment was remitted.
Although the record does not fully describe how, the
government was informed of the suspicious activity at Equip-
ment Source. In January 2003, the FBI executed a search
warrant at Equipment Source’s offices and seized documents
No. 13-2204 5
and office equipment. Equipment Source ceased doing busi-
ness shortly thereafter.
Eight years later, the government filed an information
charging Marr with six counts of wire fraud related to his
fraudulent forklift sales.
A. The Trial Proceedings
At trial, the government presented testimony from fourteen
Equipment Source customers who paid for forklifts but never
received them. One of the defrauded customers testified that
he went to Equipment Source’s office to get his money back
and met with Marr. Marr told him that he would refund the
money, but needed to talk to his lawyer first. Marr never sent
a refund. The customer identified Marr in the courtroom as the
person he talked with during the visit. The government then
called Ms. Lecik and Mr. Hullinger, the two employees from
Palos Bank, who explained the chargebacks on the merchant
account and identified Marr as having a significant role in the
management of Equipment Source’s bank accounts. As its final
witness, the government called its financial expert witness,
Bruce Killian, who analyzed the Equipment Source merchant
account and confirmed the $328,881.89 loss to Palos Bank. The
government introduced no evidence that Marr wrote checks
from the Equipment Source accounts to “cash” or to the “Four
Seasons Currency Exchange.”
Marr then presented his case and called Lee Williams, a
former IRS agent, to testify as an expert witness. He stated that
he had reviewed Equipment Source’s financial records and
calculated that Marr and his wife had loaned Equipment
Source over $1.1 million, but had been reimbursed less than
6 No. 13-2204
$900,000. Williams explained that the personal funds in the
company accounts mainly came from Marr and his wife’s
home equity line of credit account and their personal money
market account. Williams concluded that Marr deposited over
$200,000 more into the Equipment Source accounts than he
withdrew. Williams also described checks written from the
Equipment Source account to cash or a currency exchange in
October 2002. For example, Williams said one check was
written to “cash” in the amount of $266 for “office supplies,”
another was written to a “currency exchange” for “license and
permits,” and another was written to “cash” in the amount of
$2,450, this time for “cost of goods sold.”
On cross-examination, the government questioned Williams
about checks that had been written from the Equipment Source
checking account to cash or to the currency exchange. Williams
stated that the memo line of the checks often noted that the
withdrawal was for the “cost of goods sold,” but admitted that
he did not consider these checks in his calculations at all
because he was only hired to analyze the net amount Marr and
his wife loaned the business from their personal accounts. He
also conceded that writing checks to cash was an unusual
business practice because the IRS will deny a business expense
if it cannot be verified by an invoice or receipt of some sort.
When the prosecutor asked, “So the problem with all these
checks to cash is you don’t know where that money went, do
you?” Williams responded, “No one does.” Marr’s lawyer
objected twice during the cross-examination. First, to scope,
which the judge overruled and then to facts not in evidence,
which the judge sustained. Marr’s lawyer never objected on
Rule 404(b) grounds.
No. 13-2204 7
The government recalled its financial expert witness Killian
to rebut Williams’ testimony. Since Williams’ testimony
introduced information about checks being converted to cash,
Killian addressed this issue. The government introduced an
exhibit that summarized the checks written to cash or to
the currency exchange as compared to cash deposits. The chart
documented the Equipment Source checking account from
January 7, 2002, through October 30, 2002. Killian noted that
the cash withdrawals totaled over $1.3 million and the cash
deposits totaled only about $700,000, leaving the net cash
withdrawals around $600,000. The government also introduced
an exhibit summarizing the amount of chargebacks for
all twelve months of 2002, which totaled about $600,000;
approximately fifty percent of Equipment Source’s credit card
sales. Again, Marr’s lawyer never objected on Rule 404(b)
grounds.
Marr’s lawyer cross-examined Killian. On redirect, the
prosecutor asked only one question, it was about what was
written on the memo line of two checks dated October 29, 2002:
Mr. Killian, in your experience as a revenue agent,
would that entry in the memo line, cost of goods sold,
would that be the kind of sufficient documentation that
would have allowed those checks to be accepted as
business deductions in an audit?
Killian responded, “No.” Marr’s lawyer then objected “about
anything to do with taxes” and asked for a sidebar. The judge
denied the sidebar because it was the government’s last
question on redirect and he overruled the objection. After-
wards, the government rested.
8 No. 13-2204
The next day, Marr’s lawyer renewed her objection about
the introduction of evidence relating to taxes and moved for a
mistrial. She argued that Killian’s “line of questioning [had]
injected into a wire fraud case the possibility that there could
have been tax fraud.” The judge denied the motion.
In closing argument, the prosecutor relied on the Equip-
ment Source checks that had been written to cash or to the
currency exchange and stated that the checking withdrawals
did not reflect a “legitimate business” practice. And in rebuttal
argument, the prosecutor questioned Marr’s honesty and
called Equipment Source a “sneaky, dirty business.” Marr’s
lawyer made no objection.
At the jury instruction conference, Marr objected to Jury
Instructions Nos. 25, 31, and 32. The judge overruled Marr’s
objections to all three instructions and tendered the instruc-
tions to the jury.
The jury found Marr guilty on all six counts of wire fraud
in violation of 18 U.S.C. § 1343. The district court sentenced
Marr to a term below the advisory guideline range of 57 to 71
months. Marr received 3 years’ imprisonment, followed by
2 years of supervised release, and was ordered to pay
$328,881.89 in restitution to Palos Bank.
II. DISCUSSION
On appeal, Marr raises three issues. He contends that (1)
the government improperly introduced and relied on evidence
implying that he had a propensity to commit illegitimate tax
practices; (2) the jury instructions given at trial were legally
No. 13-2204 9
erroneous; and (3) the district court erroneously ordered him
to pay restitution to Palos Bank. We address each issue in turn.
A. Propensity Evidence
Marr argues that the government’s references to Equipment
Source checks that were written to “cash” or to the “currency
exchange” violated Rule 404(b). He contends that on three
occasions the government referred to these checks to suggest
that he had a propensity to commit illegitimate tax practices:
(1) when the government cross-examined Williams; (2) when
the government questioned Killian on redirect; and (3) when
the government relied on the evidence in its closing arguments.
We review the district court’s evidentiary ruling for an
abuse of discretion. United States v. Collins, 715 F.3d 1032, 1037
(7th Cir. 2013). To preserve an issue for appeal, counsel must
“make a timely objection or motion to strike; and state[] the
specific ground, unless it was apparent from the context.” Fed.
R. Evid. 103(a). A terse motion in limine is not specific enough
to meet the requirements of Fed. R. Evid 103(a). United States
v. Gulley, 722 F.3d 901, 906 (7th Cir. 2013). We review issues not
properly raised before the district court for plain error. Id. A
plain error seriously affects the “fairness, integrity, or public
reputation of judicial proceedings” because it deprives the
defendant of a fair trial, to the point that “the defendant would
have been acquitted otherwise,” and the error “was so obvious
and so prejudicial that a district judge should have intervened
without being prompted by an objection from defense coun-
sel.” United States v. Haldar, 751 F.3d 450, 456 (7th Cir. 2014).
Marr contends that we should review all three of his Rule
404(b) arguments using an abuse of discretion standard,
10 No. 13-2204
claiming that his pre-trial motion in limine objection preserved
the issue for appeal. We disagree.
Marr’s motion related to prospective testimony from a
witness who never actually testified at trial; not Williams. Marr
did object twice during Williams’ testimony, but never on
propensity grounds. Therefore, Marr’s objections did not
preserve the issue and so we review the checks evidence
introduced during the cross-examination of Williams for plain
error.
1. The Government’s Cross-Examination of Williams
Evidence is not admissible for propensity purposes—a prior
crime, wrong, or bad act that is introduced to show that a
person repeated his or her bad character on this particular
occasion. Fed. R. Evid. 404(b)(1). The evidence is admissible for
other purposes, however, if the prosecutor: (1) offered it for a
purpose other than propensity, (2) it was similar and close
enough in time to be relevant to the matter at issue, (3) it was
supported by sufficient preliminary evidence for a jury to find
that the defendant committed the prior act, and (4) it had a
probative value that was not substantially outweighed by the
danger of unfair prejudice, as required by Fed. R. Evid. 403.
Gulley, 722 F.3d at 906 (citing United States v. Hicks, 635 F.3d
1063, 1069 (7th Cir. 2011)).
Applying this test to Williams’ testimony relating to the
checks written to cash or to the currency exchange, we find
that Williams’ testimony was permissible under Rule 404(b).
First, the evidence was used for a purpose other than propen-
sity; the government cross-examined Williams to call into
question the accuracy of his analysis. Williams admitted that
No. 13-2204 11
his analysis did not include the net $600,000 of withdrawals
from the Equipment Source checking account. He also admit-
ted that writing checks to cash or a currency exchange was
an unusual business practice. The government questioned
Williams to prove Marr’s intent to commit wire fraud, not to
show that Marr committed tax fraud in the past and had done
so again on this occasion.
Second, Williams’ testimony about the Equipment Source
checks being converted to cash was extremely relevant. The
government alleged that Marr used the Equipment Source
bank accounts at Palos Bank to evade $328,881.89 in charge-
backs and that the scheme took place from November 2001 to
May 2003. Williams testified about the same Equipment Source
bank accounts and described transactions that occurred at the
same time as Marr’s wire fraud.
Marr makes a decent argument that the evidence does not
support a finding that he was the one who converted the
Equipment Source checks to cash, since he did not sign
the Equipment Source checks converted to cash (his father,
William C. Marr did) and there is no evidence that he either
cashed any of the checks or received any of the money.
However, the amount of evidence needed to link a defendant
to a prior bad act, is light; any evidence of the defendant’s
participation in the prior act beyond his mere presence
is sufficient. United States v. Coleman, 179 F.3d 1056, 1061 (7th
Cir. 1999). Here, the government showed that Marr managed
daily operations for Equipment Source, he was a signatory on
the merchant account, and he deposited substantial amounts
of money from his and his wife’s home equity line of credit
account and their personal money market account into the
12 No. 13-2204
Equipment Source accounts. Therefore, the jury could reason-
ably conclude that Marr participated in the scheme to convert
Equipment Source checks to cash.
Finally, though Marr asserts that the evidence of the $1.3
million in checking withdrawals converted to cash prejudiced
him because the jury could have harbored a bias against him
due to his wealth, he has pointed to no evidence in support of
this assertion. The evidence of the Equipment Source checks
converted to cash is highly probative of Marr’s intent to
commit wire fraud, and substantially outweighed any risk
that the jury would convict Marr for uncharged tax fraud
offenses instead of wire fraud charges.
For the reasons discussed above, Williams’ testimony about
the checks being converted to cash was permissible under Fed.
R. Evid. 404(b). The district court did not commit plain error by
allowing Williams to answer the government’s questions.
2. Killian’s Rebuttal Testimony Regarding the
Checks Converted to Cash
Marr contends that he timely objected on Rule 404(b)
grounds during Killian’s rebuttal testimony, so our standard
of review should be for an abuse of discretion. We agree.
Though Marr did not object until the close of Killian’s
rebuttal testimony, an objection does not have to be “perfectly
contemporaneous with the challenged testimony” to preserve
an issue for appeal. Jones v. Lincoln Elec. Co., 188 F.3d 709, 727
(7th Cir. 1999). An objection at the “close of that witness’s
testimony or prior to the start of proceedings the very next
day” would suffice to allow the court to cure “any error by
No. 13-2204 13
issuing a limiting or curative instruction while the testimony is
still relatively fresh in the mind of the jurors.” Id. Therefore, we
review the district court’s evidentiary ruling for an abuse of
discretion.
Essentially, Marr makes the same argument he did about
Williams’ testimony; he contends that the government intro-
duced improper tax fraud evidence at trial when it questioned
Killian about the checks converted to cash. Killian testified
about the same evidence Williams discussed during his direct
and cross-examination. Marr cannot now “complain on appeal
[because] the opposing party subsequently introduce[d]
evidence on the same subject.” United States v. Touloumis, 771
F.2d 235, 241 (7th Cir. 1985). It was Marr who first introduced
evidence of the checks converted to cash when his expert
witness, Williams, testified about it. The evidence of checks
being converted to cash was permissible under Rule 404(b).
The district court did not abuse its discretion when it overruled
Marr’s objection to Killian’s rebuttal testimony or when it
denied Marr’s motion for a mistrial after the close of evidence.
3. Prosecutor’s Statements
Marr argues that the government improperly relied on the
checks-to-cash evidence for propensity purposes in its closing
and rebuttal arguments as well. Since Marr did not object to
the government’s statements at trial, our review is for plain
error. United States v. Bell, 624 F.3d 803, 811 (7th Cir. 2010). To
prevail, Marr must establish that the government’s remarks
were improper and show that he was denied a fair trial
because of them. Id.14 No. 13-2204
Marr contends that the prosecutor’s remarks in his case
were comparable to the improper propensity comments made
by the prosecutor in United States v. Richards, 719 F.3d 746 (7th
Cir. 2013). In Richards, the prosecutor repeatedly called the
defendant a “drug-dealer” in his closing argument and said,
“[c]learly the defendant's drug dealing is not limited to
California. It happens here too.” Id. at 764. The court held that
the comments were improper because the prosecutor made
“the [propensity] argument ‘once a drug dealer, always a drug
dealer.’” Id. (citing United States v. Jones, 389 F.3d 753, 757 (7th
Cir. 2004)). Here, the government made no such propensity
argument.
In closing argument, the prosecutor referred to the checks
that were converted to cash and asked, “what legitimate
business does that? What legitimate business writes $1.3
million to cash and to a currency exchange?” These remarks
were “reasonable inferences from the evidence adduced at
trial.” See United States v. Nunez, 532 F.3d 645, 654 (7th Cir.
2008). We find no impropriety in the government’s closing
argument.
None of the prosecutor’s remarks during rebuttal closing
were improper either. The prosecutor remarked that Equip-
ment Source was a “sneaky, dirty business.” Prosecutors are
allowed to comment on the weakness of the defense’s theory.
Id. at 654; see also United States v. Glover, 479 F.3d 511, 520 (7th
Cir. 2007). The prosecutor’s remarks were in response to
Marr’s defense that he honestly tried to rescue his failing
business. Therefore, we find no impropriety in the govern-
ment’s rebuttal argument either.
No. 13-2204 15
B. Jury Instructions
Marr also challenges Jury Instructions Nos. 25, 31, and 32.
He argues that the instructions were erroneous because they
did not require the government to prove that Marr specifically
intended to defraud a financial institution, i.e., Palos Bank.
We review challenges to jury instructions de novo. United
States v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009). “The district
court ‘is afforded substantial discretion with respect to the
precise wording of instructions so long as the final result, read
as a whole, completely and correctly states the law.’” Id.(quoting United States v. Gibson, 530 F.3d 606, 609 (7th Cir.
2008)). We reverse only if the instructions as a whole do not
correctly inform the jury of the applicable law and the jury is
misled. Id.In this case, the district court tendered the following
instructions to the jury over Marr’s objections:
Instruction 25
As used in these instructions, the phrase “intent to
defraud” means that the acts charged were done
knowingly with the intent to deceive customers of
Equipment Source USA in order to cause a gain of
money or property to the defendant or the potential loss
of money or property to another.
Instruction 31
A scheme “affected” a financial institution if it exposed
the financial institution to a new or increased risk of
loss.
16 No. 13-2204
Instruction 32
The government must show that the defendant engaged
in a scheme to defraud with a specific intent to defraud
and that the scheme affected a financial institution. The
government is not required to prove that the defendant
intended to defraud a financial institution.
“To convict a defendant of wire fraud, the government
must prove three elements: (1) the defendant participated in a
scheme to defraud; (2) the defendant intended to defraud; and
(3) a use of an interstate wire in furtherance of the fraudulent
scheme.” 18 U.S.C. § 1343; United States v. Turner, 551 F.3d 657,
664 (7th Cir. 2008). Marr’s argument focuses solely on the
second element of the offense, the required mens rea.
To convict Marr of wire fraud, the government was not
required to prove that Marr specifically intended to defraud
Palos Bank. While our circuit has yet to specifically address this
issue, the Third Circuit held that 18 U.S.C. § 1343 requires a
jury to find only that the defendant “had the intent to defraud”
and need not find that the defendant intended to defraud a
financial institution because “the object of the fraud is not an
element of the offense.” United States v. Pelullo, 964 F.2d 193,
216 (3d Cir. 1992). In a recent wire fraud case in the First
Circuit, the court “flatly rejected the idea that the government
is obliged to prove that the defrauders intended to defraud
a specific victim.” United States v. Tum, 707 F.3d 68, 76 (1st Cir.
2013). We join the reasoning of our sister circuits and hold that
the wire fraud statute only requires the government to prove
that a defendant intended for his or her scheme to defraud
No. 13-2204 17
someone, a financial institution does not need to be the intended
victim.
Here, the district court modeled Instruction 25 after the
Pattern Criminal Jury Instruction for the Seventh Circuit that
defines the “intent to defraud” for 18 U.S.C. § 1343. We
presume that the Pattern Criminal Jury Instructions for the
Seventh Circuit correctly state the law, United States v. Leahy,
464 F.3d 773, 796 (7th Cir. 2006), and Marr does not argue that
the formulation of the pattern instruction was in error. At trial,
the government showed that both Equipment Source custom-
ers and Palos Bank fell victim to Marr’s scheme. Therefore,
naming the Equipment Source customers as the intended
victim of Marr’s scheme in Instruction 25 correctly informed
the jury on the applicable law.
There is not a Pattern Criminal Jury Instruction for the
Seventh Circuit directly applicable to Instruction 31. However,
there is a Seventh Circuit case. In United States v. Serpico, 320
F.3d 691, 694 (7th Cir. 2003), we approved a jury instruction in
a wire fraud case which stated that “schemes affected the
banks if they ‘exposed the financial institution[s] to a new or
increased risk of loss.’” (citing the jury instruction). While the
precise wording of Instruction 31 is not the same as the
instruction in Serpico, it does completely and correctly state the
law.
There is not a Pattern Criminal Jury Instruction for the
Seventh Circuit for when a wire fraud scheme affects a
financial institution either. However, we find that Instructi-
on 32 correctly informed the jury of the applicable law. To
convict Marr of wire fraud, the government needed only to
18 No. 13-2204
prove that Marr’s scheme to defraud affected Palos Bank, not
that Marr intended to defraud Palos Bank. As we clarified
above, in a wire fraud case the “object of fraud is not an
element of offense.” Pelullo, 964 F.2d at 216. Therefore, we hold
that the district court properly instructed the jury on the mens
rea required to support Marr’s wire fraud conviction.
C. Restitution Order
Marr’s final argument is that the district court did not have
authority to order restitution to Palos Bank. He contends
that Palos Bank does not qualify as a victim under the Manda-
tory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663. We
review de novo the district court’s authority to order restitution.
United States v. Hosking, 567 F.3d 329, 331 (7th Cir. 2009).
The MVRA requires the court to order a “defendant [to]
make restitution to the victim of the offense” and defines a
victim as “any person directly harmed by the defendant's
criminal conduct in the course of the scheme.” 18 U.S.C.
§ 3663A(a)(1)-(2). The purpose of the MVRA is to compensate
victims for harm “caused by the specific conduct that was the
basis of the offense of conviction.” See United States v. Donaby,
349 F.3d 1046, 1052 (7th Cir. 2003) (citing Hughey v. United
States, 495 U.S. 411 (1990)). The court determines who is a
victim by a preponderance of the evidence during sentencing.
Id. at 1053.
Palos Bank easily qualifies as a victim under the MVRA
definition of a victim. The record contains ample evidence
showing that Palos Bank was directly harmed by Marr’s wire
fraud scheme. Marr charged Equipment Source customers for
forklifts he neither owned nor delivered. The customers
No. 13-2204 19
received refunds paid out of Equipment Source’s merchant
account. Marr depleted the funds below the reserve required
to maintain the merchant account. Chargebacks continued to
accrue after Palos Bank suspended the Equipment Source
accounts. Afterwards, Palos Bank paid the $328,881.89 deficit
to Equipment Source customers and was never reimbursed by
Marr. Therefore, the district court had the authority to order
restitution payable to Palos Bank.
III. CONCLUSION
The district court properly admitted evidence regarding
Equipment Source checks written to cash or to the currency
exchange, the three challenged jury instructions were proper,
and the district court had the statutory authority necessary to
order restitution payable to Palos Bank. The judgment of the
district court is AFFIRMED.