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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. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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