In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-4093

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFF PAWLINSKI,

Defendant-Appellant.

____________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 03-CR-51—Charles N. Clevert, Jr., Judge.

____________

ARGUED MAY 26, 2004—DECIDED JULY 2, 2004

____________

Before BAUER, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge. Jeff Pawlinski, who was then a

Milwaukee alderman, pleaded guilty to having defrauded

contributors to the campaign fund maintained by the

“Pawlinski for Alderman” campaign committee of approximately $40,000, in violation of the federal mail fraud statute,

18 U.S.C. § 1341, by using the contributors’ money for purposes unrelated to the campaign. As part of his sentence,

Pawlinski was ordered to pay restitution of $39,324.03, with

the money to be deposited in the first instance in the district

court; and he did this. The court then notified the contribu-
2 No. 03-4093

tors to the campaign fund that they might be entitled to

reimbursement. None of the contributors, as far as we

know, has been accused of any impropriety in having

contributed to Pawlinski’s campaign, even though the plea

agreement states that the campaign fund received corporate

contributions and Wisconsin law forbids corporations to

make campaign contributions. Wis. Stat. §§ 11.38(1)(a)(1),

.38(4). But only a handful of contributors stepped forward

and their claims added up to a mere $1,850.

Pawlinski’s lawyer suggested that the unclaimed balance

be returned to the “Pawlinski for Alderman” campaign

fund, which would then be dissolved and the money in it

distributed in accordance with Wisconsin law. Pawlinksi

disclaimed any right to the money himself. The government

expressed indifference between the court’s returning the

money to the campaign fund and giving it to the Crime

Victims Fund of the U.S. Treasury. 42 U.S.C. § 10601(a). The

Crime Victims Fund, which finances services to victims of

crime, 42 U.S.C. §§ 10602-10603, is funded by criminal fines,

forfeited bail bonds, penalty fees, and special assessments

collected by the Department of Justice, the federal courts,

and other federal agencies. 42 U.S.C. § 10601(b);

http://www.ojp.usdoj.gov/ovc/ncvrw/cvfa/2002/

fundawards.html.The judge amended the order of restitution to direct that the money go to the Fund.

Pawlinski appeals from the amended order and is met at

the threshold by the government’s contention that he has no

standing to challenge the amended judgment because he has

no stake in the money that had been deposited in the district

court, having renounced, as we noted, any claim to it. It is

true that he has no ownership interest in the money. But it

is untrue that he has no financial interest in who receives the

money. Under Wisconsin law, money obtained by a political

campaign in violation of the prohibition against corporate
No. 03-4093 3

contributions (acceptance of such contributions being a

violation of Wis. Stat. § 11.38(1)(b)) must either be returned

to the contributors or donated to the state’s “common school

fund” or to a charitable organization. Wis. Stat. § 11.38(6).

(Another option was added by 2001 Wis. Laws 109, but the

statute was held unconstitutional, Wisconsin Realtors Ass’n

v. Ponto, 233 F. Supp. 2d 1078, 1093 (W.D. Wis. 2002); see

also Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 490-

92 (7th Cir. 2004), so we ignore that option.)

In addition, and in some tension with section 11.38(6),

a candidate who wants to wind up his campaign fund

may not do so until the campaign’s debts are paid in full.

Wis. Stat. § 11.19(1). When that is done, the fund can be

terminated and any balance remaining upon termination

“may be used for any political purpose not prohibited by

law, returned to the donors in an amount not exceeding the

original contribution, transferred to the [election] board for

deposit in the Wisconsin election campaign fund or donated

to a charitable organization or the common school fund.” Id.

Pawlinski acknowledges that he violated Wisconsin law—

not only the prohibition against accepting corporate corporations, but also and more fundamentally the prohibition

in Wis. Stat. § 11.25(2)(a) against using “moneys solicited for

political purposes for a purpose which is other than

political”—as well as federal law (the mail fraud statute).

And though we cannot find a case on point, or a pertinent

statute or regulation, it is highly unlikely that the fact that

the fund is now empty would relieve him from any of the

financial consequences of his illegalities. He stole the

$39,324.03 that he has been ordered to make restitution of,

and presumably he has to make that loss good so that the

fund’s assets can be put to their statutorily designated uses.

We cannot be absolutely certain of this; there are civil

fines and criminal penalties for violations of Wisconsin

campaign-finance laws, see Wis. Stat. §§ 11.60, .61, and
4 No. 03-4093

conceivably they’re intended to be exclusive. And it is almost certainly too late for any more contributors, corporate

or otherwise, to claim restitution, in view of the time limits

in 18 U.S.C. § 3664(d)(5), though those limits can sometimes

be bent. United States v. Grimes, 173 F.3d 634, 638-40 (7th Cir.

1999); United States v. Zakhary, 357 F.3d 186, 191-93 (2d Cir.

2004); United States v. Terlingo, 327 F.3d 216, 218-23 (3d Cir.

2003); United States v. Dando, 287 F.3d 1007, 1009-11 (10th

Cir. 2002); United States v. Vandeberg, 201 F.3d 805, 813-14

(6th Cir. 2000). Anyway the district court’s coffer is empty

except for the slight amount set aside for the contributors

who have applied for reimbursement—the Crime Victims

Fund has the rest. But all that’s important is that the state

may be able to order Pawlinski to restore the stolen money

to the fund.

He has an additional financial interest in having the unclaimed balance of the amount he deposited in the district

court returned to the campaign fund rather than sequestered by the Crime Victims Fund. He has campaign debts,

and we know from Wis. Stat. § 11.19(1) that the campaign’s

debts must be paid before the fund is terminated. Again,

there is uncertainty. There are no assets in the campaign

fund any more, and we do not know whether the debts are a

personal obligation of the candidate. Maybe the only liable

entity is the “Pawlinski for Alderman” campaign committee; that might depend on the terms of the contracts between

the committee and its creditors, a matter on which the

record is silent. Still a further wrinkle is that Wisconsin may

consider the Crime Victims Fund an appropriate charity to

receive the unclaimed balance in the terminated campaign

fund. See Wis. Stat. § 11.01(2), defining “charitable organization” to include the United States and “any political subdivision thereof.”

Amidst this welter of uncertainty the fact remains that if

the money originally deposited in the district court and not
No. 03-4093 5

claimed by the contributors isn’t returned to the campaign

fund, then any money that Pawlinski owes by virtue of

Wisconsin law, as a consequence of either his fraud or

simply his campaign debts, may come out of his pocket. The

fact that the injury done him by the amended judgment is

probabilistic rather than certain does not deprive him of

standing. E.g., Cook Inc. v. Boston Scientific Corp., 333 F.3d

737, 743-44 (7th Cir. 2003). The probability does not seem

negligible, though no stronger statement is possible—an

additional doubt being whether the U.S. Treasury will

return the money that the judge sent to the Crime Victims

Fund if the judge’s order is reversed.

Having satisfied ourselves that Pawlinski has standing to

maintain this appeal, we turn to the merits, where the issue

is the lawfulness of the judge’s shipping to the Crime

Victims Fund the unclaimed balance of the amount that

Pawlinski had been ordered to pay by way of restitution.

The original order of restitution was based on the

Mandatory Victims Restitution Act of 1996, which requires

restitution in the case of certain federal crimes, including

mail fraud. 18 U.S.C. § 3663A(c)(1)(A)(ii); United States v.

Grice, 319 F.3d 1174, 1177 (9th Cir. 2003) (per curiam). An

order of restitution under that statute (and no other basis for

the order is suggested) must go to victims of the defendant’s

crimes, and the Crime Victims Fund is neither a victim of

Pawlinski nor a representative of his victims. There are only

two exceptions, other than for certain drug crimes, see 18

U.S.C. § 3663(c): if the order is imposed pursuant to a plea

agreement which provides for restitution to nonvictims, or

if the victims assign their right to restitution to the Crime

Victims Fund. 18 U.S.C. §§ 3663A(a)(3), 3664(g)(2). Neither

exception is applicable to this case. There has been no assignment, and the defendant merely “agree[d] to pay restitution as ordered by the court.” Compare United States

v. Peterson, 268 F.3d 533 (7th Cir. 2001), where the defendant
6 No. 03-4093

“promised to pay restitution for ‘all losses relating to the

offense of conviction and all losses covered by the same

course of conduct or common scheme or plan as the offense

of conviction.’ ” Id. at 533-34.

The government argues that “in the absence of a clear

statutory directive, the sentencing court was free to ‘exercise

its discretion in fashioning a restitution order,’ 18 U.S.C.

§ 3664(a).” But the quotation is cropped and misleading.

With context restored, its irrelevance and the baselessness

of arguing that the district court has discretion to order

restitution to nonvictims other than as authorized by the

statute become evident. Here is the sentence in which the

quotation appears: “For orders of restitution under this title,

the court shall order the probation officer to obtain and

include in its presentence report, or in a separate report, as

the court may direct, information sufficient for the court to

exercise its discretion in fashioning a restitution order.” The

discretion goes to the form of the order—the identity of the

victims, the amount owed each, and similar details necessary to the formulation of a specific order. E.g., United States

v. Sensmeier, 361 F.3d 982, 988 (7th Cir. 2004); United States

v. Rhodes, 330 F.3d 949, 953 (7th Cir. 2003); United States v.

Wood, 364 F.3d 704, 714 (6th Cir. 2004); United States v.

Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003). It is not

discretion to ignore the statutory limits on when nonvictims

may be included in a restitution order. Federal courts

cannot order restitution in a criminal case without a statutory basis. United States v. Randle, 324 F.3d 550, 555 (7th Cir.

2003); United States v. Hensley, 91 F.3d 274, 276 (1st Cir.

1996); United States v. Snider, 957 F.2d 703, 706 (9th Cir. 1992)

(per curiam).

The sentence was illegal. United States v. Wolf, 90 F.3d 191,

194 (7th Cir. 1996). The government even acknowledges, in

its brief, that the judge’s amended order is “afield from the
No. 03-4093 7

statutory framework governing restitution”; but it argues

that if the sentence was therefore unlawful, still the judge’s

error was not a “plain error” and can therefore be forgiven.

We do not understand the argument. The doctrine of plain

error is meant for cases in which a defendant forfeits a

ground in the district court yet then presents it to the

appellate court (or maybe the appellate court notices it on

its own) as a basis for reversal. E.g., United States v. Cotton,

535 U.S. 625, 631-32 (2002); United States v. Olano, 507 U.S.

725, 732-37 (1993). Remember that in the district court, after

it was discovered that most of the victims of Pawlinski’s

fraud would not be asking for restitution, Pawlinski urged

that the money be returned to the campaign fund. He never

suggested that it should go to the Crime Victims Fund

instead. When the government proposed that as an alternative destination (while expressing indifference between it

and the campaign fund), Pawlinski repeated that he wanted

the money to go to the campaign fund instead of to the

Crime Victims Fund. There was thus no forfeiture of the

argument against sending the money to the Crime Victims

Fund, and hence there is no occasion to consider whether

the judge’s error was not merely error, but plain error. In

fact it was plain error, because there was not even an

arguable basis for what he did and because the entry of an

illegal sentence is a serious error routinely corrected on

plain-error review. E.g., United States v. Randle, supra, 324

F.3d at 558; United States v. Noble, 246 F.3d 946, 955-56 (7th

Cir. 2001); United States v. Ubakanma, 215 F.3d 421, 427-29

(4th Cir. 2000); United States v. Rodriguez, 938 F.2d 319, 320-

22 (1st Cir. 1991).

The judge erred in directing that the money that Pawlinski

stole from his campaign fund be given to the Crime Victims

Fund. The order of restitution must be vacated as to the

remaining balance because, as we have emphasized, the

conditions for restitution to nonvictims have not been
8 No. 03-4093

satisfied. What happens to the money that the judge

dispatched to the Crime Victims Fund will be an issue

between Wisconsin, the U.S. Department of Justice, which

administers the Fund, 42 U.S.C. § 10605, and possibly the

U.S. Treasury as well.

REVERSED AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-2-04