United States v. Gregory Wolfe
2012 U.S. App. LEXIS 24937
| 7th Cir. | 2012Background
- Wolfe was convicted on bank theft and interstate transportation of stolen goods for a copper theft scheme; district court sentenced him to 88 months on each count, concurrent, with concurrent 3-year supervised release and restitution of $3,028,011.29.
- Wolfe worked at the Gary, Indiana Katoen Natie warehouse; his stepfather Harris was the warehouse’s facilities manager and Wolfe acted as the Henry Bath account contact.
- Copper for Henry Bath was stored in bundles with two bands per LME regulations and a “place of rest” for each bundle; shipments required Henry Bath to provide itemized removal details and a bill of lading during business hours.
- Wolfe, with Harris and others, initiated a “G-Money” re-bundling scheme in 2010 (removing sheets from bundles and creating new bundles), moving bundles to the back of the warehouse.
- The copper was trucked to Team Alliance Plastics in Michigan and then sold to Stiana in Toronto; after an August 2010 audit, extensive missing copper (approximately $2.9 million) was discovered and Wolfe and Harris were fired; an indictment followed.
- At trial Wolfe claimed no knowledge of the scheme; the Government presented Gurgon’s testimony and surveillance video; Wolfe was convicted on both counts and later sentenced with restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Closing argument plain error | Wolfe claimed prosecutor comments biased the jury | Wolfe argues statements vouching for credibility and misstating evidence biased trial | Not reversible plain error; no prejudice shown under five-factor test |
| Victim loss amount | Loss amount supported by evidence exceeded $2.5 million | Only $2.5 million or less; foreseen losses limited to 2009 events | District court’s loss finding and 18-level increase affirmed; supported by evidence |
| Restitution and Apprendi | restitution is a criminal penalty; Apprendi applies to jury findings | Restitution not a criminal penalty; Southern Union not controlling here | Restitution not treated as criminal penalty; Apprendi not violated; Ramos (Sixth Amendment) not triggered |
Key Cases Cited
- United States v. Lathrop, 634 F.3d 931 (7th Cir. 2011) (plain-error review for closing arguments factors)
- United States v. Adams, 628 F.3d 407 (7th Cir. 2010) (prejudice factors for prosecutorial comments on witness)
- United States v. Nunez, 532 F.3d 645 (7th Cir. 2008) (limits on prosecutorial vouching; credibility inferences from evidence)
- United States v. Clarke, 227 F.3d 874 (7th Cir. 2000) (witness testimony and incentives without plea agreements)
- Soltys v. Costello, 520 F.3d 737 (7th Cir. 2008) (closing arguments may rely on contemporaneous evidentiary references)
- United States v. Badger, 983 F.2d 1443 (7th Cir. 1993) (misstatements of evidence during closing arguments)