United States v. Lloyd Robl
8 F.4th 515
| 7th Cir. | 2021Background
- Lloyd Robl operated AAS, an unlicensed and uninsured asbestos‑abatement business in MN/WI from ~2011–2016, fraudulently representing he was licensed and insured and providing unsafe abatement (including burning asbestos).
- A federal grand jury returned a 17‑count indictment; Robl pleaded guilty to one count of wire fraud (false licensing/insurance representations) and one count of knowingly releasing asbestos; sentencing was 144 months imprisonment (Sept. 16, 2019).
- The district court deferred setting a final restitution amount at sentencing and scheduled a restitution hearing under 18 U.S.C. § 3664(d)(5); Robl asked to postpone the hearing while his direct appeal was pending, then voluntarily dismissed that appeal.
- The district court cancelled a later in‑person restitution hearing after a telephonic status conference at which Robl was absent but represented by counsel; the court entered restitution of $94,031.41 based on government documentation of customer checks.
- Robl appealed, arguing (1) the court lacked jurisdiction to enter restitution after sentencing/appeal; (2) the restitution amount was unsupported and the court failed to require a complete victim accounting; and (3) his rights under Fed. R. Crim. P. 43(a) and 32(i)(4) (to be present and speak/cross‑examine) were violated.
Issues
| Issue | Robl's Argument | Government's Argument | Held |
|---|---|---|---|
| Court jurisdiction to enter delayed restitution | §3664(d)(5) permits delay only if losses were "not ascertainable" and the gov't or probation notified the court; here amount was ascertainable so court lost jurisdiction | Court retained authority because it clearly reserved restitution at sentencing and §3664 deadline is directory per Dolan | Held: Court had jurisdiction; §3664 deadline is not jurisdictional where court reserved restitution (Dolan) |
| Right to be present and to speak/cross‑examine (Rule 43 & 32(i)(4)) | Robl should have been personally present and allowed to cross‑examine victims to contest check purposes/amounts | §3664(c) makes Rule 32(c) the only applicable rule for restitution proceedings and Congress displaced Rules 43/32(i)(4); moreover Robl offered only speculative challenges | Held: No Rule‑43/32 violation; statutory scheme precludes those rules for delayed restitution; denial of a live hearing was not a due‑process abuse given speculative, unsupported objections (Stivers precedent) |
| Sufficiency of evidence for restitution amount ($94,031.41) | Government’s check schedules insufficiently tied each payment to asbestos work; needed individual victim accounting and live testimony | Government produced detailed schedules (payor, address, amounts); preponderance standard met; defendant produced no affidavits or specific contrary evidence | Held: Restitution amount upheld; preponderance of circumstantial evidence supports the award and defendant waived or failed to develop more specific accounting objections |
| Offset for value of services performed (reduce restitution to zero) | Restitution must reflect actual loss; value of services provided should be deducted so victims’ net loss could be zero | Defendant offered no evidence quantifying value retained by victims; defendant was best positioned to prove any mitigation | Held: No plain error; defendant failed to prove value retained so no deduction warranted |
Key Cases Cited
- Dolan v. United States, 560 U.S. 605 (2010) (§3664(d)(5) deadline is directory, not jurisdictional; court may order restitution after the 90‑day deadline if it reserved restitution at sentencing)
- United States v. Stivers, 996 F.3d 800 (7th Cir. 2021) (Congress, via §3664(c), limited applicable federal rules for restitution proceedings, displacing Rules 43 and 32(i)(4) for delayed restitution)
- United States v. Orillo, 733 F.3d 241 (7th Cir. 2013) (government must prove restitution by a preponderance; appellate review of restitution for abuse of discretion)
- United States v. Locke, 759 F.3d 760 (7th Cir. 2014) (restitution is narrower than Guideline loss and must reflect actual losses caused by the offense)
- United States v. Webber, 536 F.3d 584 (7th Cir. 2008) (district court authority to order restitution reviewed de novo)
- United States v. Olano, 507 U.S. 725 (1993) (plain‑error review requires error that is plain and affects substantial rights)