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7th Circuit upholds $3M restitution order for copper theft

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The 7th Circuit Court of Appeals rejected a defendant’s argument that the court should go against its precedent that restitution is not a criminal penalty and that a recent U.S. Supreme Court holding means the jury should determine the amount of restitution he should pay for his role in copper theft.

Gregory Wolfe worked as a supervisor at Katoen Natie in Gary. The company packages and stores commodities including copper. Henry Bath LLC began storing its copper at the warehouse in early 2009. Wolfe and his stepfather, Gregory Harris, who was operations manager, began stealing sheets of copper and repackaging them to sell. This work was done before and after regular business hours.

An independent audit discovered the missing copper – approximately $2.9 million worth, totaling 390 metric tons. Harris and Wolfe were fired and charged with bank theft and interstate transportation of stolen goods. Wolfe argued at trial he had no knowledge of the theft scheme and was just following Harris’ orders. The government rebutted this defense with testimony by Wolfe’s sometimes girlfriend Ashby Gurgon.

Wolfe was convicted and sentenced to 88 months imprisonment on each count, to be served consecutively, followed by three-year terms of supervised release. The court also ordered him to pay more than $3 million in restitution.

In United States of America v. Gregory Wolfe, 11-3281, Wolfe argued that he was deprived of a fair trial because of statements the prosecutor made during closing argument. He also challenged his sentence and the restitution order.

Reviewing under plain error, the 7th Circuit found the prosecutor made improper remarks by credibility vouching for Gurgon, but Wolfe was not prejudiced or denied a fair trial.  The prosecutor did misstate trial testimony by saying “all the other witnesses” identified Wolfe on video, but Wolfe was unable to demonstrate that he was prejudiced by that remark.

The judges affirmed the 18-level increase to Wolfe’s sentence because the government was able to show the victim’s loss was at least $2.5 million. He argued that the value of the copper stolen in 2010 was less than that amount and he was unaware of any theft in 2009.

The 7th Circuit also affirmed the restitution order, refusing to find that Southern Union Co. v. United States, U.S. 132 S. Ct. 2344 (2012) requires the Circuit Court to overturn its longstanding jurisprudence that restitution is not a criminal penalty, and second, mandates that all restitution amounts be supported by the jury’s verdict, Judge William Bauer wrote. Southern Union and Apprendi v. New Jersey, 530 U.S. 466 (2000), only come into consideration if the court concludes restitution is a criminal penalty. Bauer noted that the 7th Circuit is in the minority among circuits by not finding restitution is a criminal penalty.

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  1. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  3. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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