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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. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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