901 F.3d 883
7th Cir.2018Background
- Robert E. Stochel was appointed receiver for Tip Top Supermarkets, Inc., and was required to marshal assets and report actions to the state court.
- Between 1999 and 2004 Stochel embezzled $331,840 from the receivership and thereafter used about $216,000 from other sources to cover legitimate receivership disbursements and conceal the shortfall.
- The state court repeatedly ordered accountings; Stochel submitted a false Rule 60(B) motion on March 12, 2012, mailed to the court, falsely representing available funds and seeking more time to assemble records.
- The court partially granted the motion but later removed Stochel as receiver and appointed an auditor; the audit revealed the embezzlement and account closure years earlier.
- A federal grand jury indicted Stochel for mail fraud based on the mailed Rule 60(B) motion; he was convicted after trial and sentenced to 24 months imprisonment.
- On appeal Stochel challenged (1) sufficiency of the evidence (mailing in furtherance of the scheme/statute of limitations), and three sentencing rulings: denial of acceptance-of-responsibility credit, intended-loss calculation, and a two-level enhancement for violating a judicial order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for mail fraud (mailing in furtherance) | The mailed Rule 60(B) motion was intended to lull victims and delay discovery, thus it furthered the scheme. | The fraudulent scheme ended years earlier (2004/2006); the 2012 mailing was not in furtherance and indictment is untimely. | Affirmed conviction: mailings that preserve appearance of propriety and postpone investigation can further a scheme; evidence supported jury inferences. |
| Acceptance of responsibility credit under U.S.S.G. §3E1.1(a) | Credit denied by government because Stochel contested an essential element (use of the mails). | Stochel: he admitted stealing and only disputed the mailing’s nexus to the scheme, so he accepted responsibility. | Denial affirmed: contesting the mail-use element precludes the reduction. |
| Loss amount / intended loss for Guidelines §2B1.1(b)(1)(G) | Government: intended loss equals $331,840 drained; cover-up payments are part of scheme and not offsets. | Stochel: $216,000 of later payments were legitimate receivership expenses and offset loss; also seeks credit for receiver services. | Affirmed: intended loss is amount placed at risk; cover-up payments are costs of perpetuating fraud and not offset; service-value claim unsupported. |
| Two-level §2B1.1(b)(9)(C) enhancement for violating a judicial order | Government: state-court order to marshal assets and report was a specific order; Stochel violated it. | Stochel: order was not specific enough to trigger enhancement. | Affirmed: order required reporting and remaining subject to court directions—sufficiently specific; Stochel’s admitted violations support enhancement. |
Key Cases Cited
- United States v. Lane, 474 U.S. 438 (U.S. 1986) (mailings intended to lull victims and postpone authorities can be within the mail-fraud statute)
- United States v. Mankarious, 151 F.3d 694 (7th Cir. 1998) (mailings that preserve appearance of propriety further fraudulent schemes)
- United States v. Leahy, 464 F.3d 773 (7th Cir. 2006) (elements of mail fraud include scheme, intent, and use of the mails in furtherance)
- United States v. Tadros, 310 F.3d 999 (7th Cir. 2002) (statute of limitations for mail fraud runs from date of mailing of fraudulent material)
- United States v. Swanson, 483 F.3d 509 (7th Cir. 2007) (loss cannot include value of legitimately performed services)