In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1459

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS G. ADCOCK, JR.,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04-CR-30065—Jeanne E. Scott, Judge.

____________

ARGUED JANUARY 16, 2008—DECIDED JULY 16, 2008

____________

Before MANION, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. For at least a decade, Thomas

Adcock, Jr., worked for a nonprofit corporation in Pana,

Illinois, that provides housing for persons of low income

and senior citizens. His company, the Housing Authority

of Christian County (“HACC”), received most of its funds

from the federal government. Adcock ran into trouble

when, in his capacity as Maintenance Supervisor for

one facility, he orchestrated a contract for painting the

individual units and failed to disclose his own substantial economic interest in that contract. When his involvement in the company to which the contract had been
2 No. 07-1459

awarded came to light, he was indicted and charged

with six counts of wire fraud, three counts of theft of

government funds, three counts of embezzlement of

government funds, two counts of submitting false documents, and one count of making a false statement. See 18

U.S.C. §§ 1343, 666A, 641, and 1001. The government

dismissed the embezzlement counts, but a jury found

Adcock guilty on the remaining 12 charges. The district

court sentenced him to 21 months in prison and ordered

him to pay $41,174.09 in restitution. We affirm.

I

HACC operates housing facilities throughout Christian

County, Illinois; it relies primarily on funds from the

U.S. Department of Housing and Urban Development

(“HUD”), some of which come in the form of a monthly

subsidy and others as particular grants. Among its funding

sources is a capital grant that requires it to create a fiveyear plan for the maintenance of its facilities. Like other

federal grantees, HACC must follow certain federal rules

about spending. Of particular importance for this case are

HUD’s conflict-of-interest regulations, which require

grantees to avoid conflicts in the award and administration of contracts. No employee, officer, or agent of a

grantee may participate in the selection, the award, or

the administration of a contract supported by federal

funds if a conflict of interest (either direct or indirect)

would be involved. These rules appeared, among other

places, in a series of employee handbooks that HACC

published in 1993, 1996, and 2000. HACC gave copies of

these handbooks to its employees.

Adcock first began working for HACC in 1994, when

he was hired to be the live-in custodian for a facility
No. 07-1459 3

called Pana Towers. In 1997, he was promoted to the

position of Maintenance Supervisor for HACC. In this

new job, he worked with HACC’s Executive Director,

Reva Woolard, her successor, Richard Deere, and the Board

of Commissioners of HACC. As Maintenance Supervisor,

Adcock was responsible for deciding which maintenance

projects needed to be included in the five-year plan. The

plan itself was revised every year and was subject to HUD

approval. After a plan received HUD approval, HUD

funded it by allocating accounts on which HACC was

authorized to draw to pay invoices. The payments were

accomplished through wire transfers of funds from the

United States Treasury to HACC’s bank account in Pana,

Illinois.

From time to time, HUD evaluated the condition of the

apartment units that it was subsidizing. In the course of

these evaluations, it criticized HACC for failing to keep up

with painting its occupied units. Adcock passed this

criticism along to Woolard and told her that his staff

was too busy to undertake the painting. He recommended

that the project should be awarded to an outside contractor, after a bidding process. Woolard agreed to do so.

When HACC opened the bids in March of 1999, one

of the lowest that it found was from a company then

called “A-1 Maintenance.” (Later, the company changed

its name to A+ Maintenance, but we refer to it as A-1.)

Adcock told Woolard and the Assistant Executive Director that A-1 had been created by Naidean Miller, a

person who had done other community service projects

for HACC. Adcock did not mention that he was actually

the person who had written and submitted the bid in

the name of A-1 Maintenance. He also made no mention

of the fact that he had signed the name of his son, Justin,
4 No. 07-1459

to the contract before he showed it to Miller. The bid

from A-1 listed three references: Adcock himself, Dale

Myers (Adcock’s father-in-law), and Jim Dressen, an

employee in HACC’s maintenance department who was

not aware that his name was being used. Indeed, Dressen

and a few other employees had asked Adcock if they

could bid on the project, but he told them that, as employees, they were ineligible.

When the A-1 contract was presented to the Board of

Commissioners for its approval on March 30, 1999,

Woolard recommended that it be accepted. Adcock was

present at that meeting. In response to a question from a

Board Member, he falsely represented that Miller was

the owner of A-1. He said nothing about the fact that

either he or any of his family members might have an

interest in the arrangement. Under the contract, A-1

agreed to the following schedule of payments: $190 for

painting an efficiency apartment; $390 for painting a

one-bedroom apartment; and $490 for painting a twobedroom apartment.

After the Board awarded the contract to A-1, Adcock

told Miller that his son, Justin, had won the contract, and

that Justin wanted to hire her to perform the actual painting. She signed a paper agreeing to work as a subcontractor for Justin. Under that agreement, Miller agreed

to accept $190 for painting a one-bedroom apartment

(giving “Justin” a nice $200 profit for that work) and

$240 for a two-bedroom apartment ($250 less than the

amount specified in the A-1 contract). Over the next

two years, Miller painted approximately 132 units for

HACC. Adcock told her which ones to do, and she

then reported back to him, listing the units she had completed. She was paid by checks signed in the name of
No. 07-1459 5

Justin Adcock, although she dealt only with defendant

Thomas Adcock. Justin was vaguely aware of what was

going on. He painted a few units; he opened a bank

account in the name of A-1 at his father’s request; but

otherwise he paid no attention to the company, since

he was away at college. Woolard at one point wondered

what Justin was doing, because Justin’s name appeared

on the contract and the insurance certificate. Adcock told

her that Justin was just helping out Miller, who could

not obtain insurance in her own name.

Adcock personally typed and submitted all of the

invoices for A-1’s work to HACC. When he submitted an

invoice, HACC’s bookkeeper first ensured that it was

approved, and then took the necessary steps to draw

the funds from HUD. After the funds were wire-transferred from HUD to HACC’s bank account, the bookkeeper cut a check payable to A-1. Adcock would then

pick up that check and deposit it in the bank account

that Justin had opened for A-1 (to which only Adcock

had access). From April 1999 through March 2001, HACC

paid A-1 $73,060; out of that total, Adcock paid Miller

$27,500. The remaining $45,000 represented his profits

from the deal, although he urges us to recall that he

was performing some administrative functions for A-1

and thus some of that money was remunerative.

Near the end of 2000, all of HACC’s contractors had to

submit a certificate to the U.S. Department of Labor

attesting that they were complying with all applicable

regulations. Adcock prepared and signed each certificate

on file for A-1; his forms did not reflect that he or any of

his family members were involved with the contract.

Instead, the forms continued the fiction that Miller was

the owner of A-1. Miller never saw those forms.
6 No. 07-1459

In March 2001, the Board of Commissioners learned

from some anonymous letters that Adcock was the true

owner of A-1. The Board called him in to address both a

double-billing issue and the alleged conflict during an

executive session, but he denied having any financial

interest in the business. Deere, by then Executive Director,

instructed the bookkeeper to make future payments to

“Naidean Miller Painting.” Shortly thereafter, Adcock

presented an invoice for $6,660, dated March 30, 2001,

in the name of A-1 Maintenance. The bookkeeper processed the invoice, but as instructed she made the check

payable to “Naidean Miller Painting.” Knowing that

Miller was in the building that day, she took it personally to Miller. Miller was surprised in every way:

she knew nothing of the invoice, thought that the amount

was very high, and refused to accept the check. Minutes

later, Adcock picked up the check and asked Miller to

come to his office. There he asked her if she would

sign the check over to him, and she did. Not long thereafter, Miller took over the contract in earnest for a

short time. Happy to be earning so much more money,

she performed under the terms of the A-1 contract until

May or early June 2001, when the contract was cancelled

by HACC.

II

Adcock challenges both his conviction and his sentence on appeal. He asserts that the evidence on the

wire fraud counts was insufficient in two ways: first, it

did not demonstrate that he acted knowingly or intentionally to defraud HACC, and second, the government

failed to prove that he “knowingly caused” a wire transmission. His sentence was too high, he contends, because
No. 07-1459 7

the court should have used the prices specified in the A-1

contract as the best evidence of the market value of the

services that actually were rendered to HACC. He also

argues for other offsets, and he claims that the court

miscalculated the amount of restitution.

A

In United States v. Ratliff-White, we held that “[a] defendant commits wire fraud under 18 U.S.C. § 1343, if she:

(1) participates in a scheme to defraud; (2) intends to

defraud; and (3) causes a wire transmission in furtherance

of the fraudulent scheme.” 493 F.3d 812, 817 (7th Cir. 2007).

In his challenge to his convictions on the six wire fraud

counts, Adcock does not argue that the evidence failed to

support the first of those elements. He claims, however,

that the government did not meet its burden of proving

the second or third. We address these two points in turn.

Adcock’s primary support for the proposition that he

could not have acted with the requisite knowledge or

intent to defraud is essentially that HACC was a hotbed of conflicts of interest, and in the face of such widespread malfeasance, he (a mere Maintenance Supervisor)

would have had no way of knowing that his use of A-1

was impermissible. His brief details a depressing tale

of nepotism and self-dealing at HACC, but it also demonstrates that this evidence was all before the jury. So, on

the one hand, the jury learned that Woolard regularly

granted contracts for the purchase of paint to a hardware

store partly owned by her husband; that Deere (the later

Executive Director) regularly conducted business with

People’s Bank, for which his son was a controller; that the

chair of HACC’s Board of Commissioners also served on
8 No. 07-1459

the Pana City Council as an elected official; that bidding

procedures were regularly mismanaged; and more. On

the other hand, the jury could infer that Adcock had

the employee handbook setting forth the conflict-of-interest rules from the evidence showing that it was distributed

to all employees; it heard that Adcock had informed his

own employees that they were not eligible to bid on the

painting contract; it learned that Adcock repeatedly

misrepresented to the Board the precise relationship

between Miller, his son Justin, and A-1 Maintenance; and

it saw that Adcock filled out the Department of Labor

certificates and failed to disclose his family’s interest in

the contract.

When reviewing a challenge to the sufficiency of the

evidence, our task is not to see whether there is some

evidence that might have supported an acquittal; it is to

decide whether there is any evidence from which the

jury could have found guilt beyond a reasonable doubt.

See United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.

1997). From that perspective, we have no trouble concluding that the jury’s verdict was adequately supported.

The jury was not required to accept Adcock’s argument

that the permissive atmosphere of HACC rendered him

unaware of the HUD regulations or of HACC’s own

policies on conflicts of interest. The evidence we have

just reviewed about the handbook, Adcock’s advice, and

his lies amply supports the opposite conclusion. Adcock

has offered no reason why the jury would not have been

entitled to credit those items of evidence and to draw

negative inferences against Adcock from his extensive

efforts to conceal the true nature of his involvement

with A-1. We could review more of the evidence, but this

is enough to show that the jury’s finding that Adcock intended to defraud HACC was supported by the evidence.
No. 07-1459 9

Adcock’s attack on the third element required for a

wire fraud conviction—that he caused a wire transmission in furtherance of the scheme—takes too narrow a

view. The government is entitled to prove this element

either by showing that the defendant himself personally

performed the wire transfer or (more commonly) that he

acted with knowledge that the use of a wire would

follow in the ordinary course of business or that such use

could reasonably be foreseen. As we noted in Ratliff-White,

“[a] defendant can ‘cause’ a wire transmission without

personally sending a transmission.” 493 F.3d at 817 (citing

Am. Auto. Accessories, Inc. v. Fishman, 175 F.3d 534, 542

(7th Cir. 1999); United States v. Alexander, 135 F.3d 470, 474

(7th Cir. 1998)). The government argues that its evidence

here showed that the use of the wires was reasonably

foreseeable to someone in Adcock’s position.

The evidence showed that Adcock, as Maintenance

Supervisor, was responsible for working with the Board

to develop the five-year plan, which HACC updated every

year and which HUD funded. As we noted earlier, once

HUD approved the plans, it allocated accounts to fund

them; HACC was then able to draw on those accounts to

pay invoices as they were received. The draws were

accomplished through a series of wire transfers. The

question is whether these wire transfers were reasonably

foreseeable to Adcock. A reasonable person certainly

would have foreseen the need to create some manner

of transferring money from HUD, located in Washington,

D.C., to HACC, located in central Illinois. The days of

Pony Express riders galloping across the countryside

with large satchels of cash are long gone. Shipping cash

by railroad or truck over such a distance is only slightly

less foolhardy. Even if HUD had mailed U.S. Treasury
10 No. 07-1459

checks to HACC in Illinois, those checks would have

had to clear by means of the wires through the interbank

system, before the funds reached an account in Pana.

Here, the jury knew that Adcock was instrumental in

developing the five-year plans, that he held a supervisory position at HACC, and that he submitted A-1’s

invoices to HACC and waited to hear if the funds had

cleared. This is enough, we believe, to permit the jury to

find that the use of the wires was reasonably foreseeable

to Adcock. Given the standard of review that binds us,

we must reject both of his challenges to the sufficiency

of the evidence.

B

With respect to his sentence, Adcock asserts that the

district court miscalculated the amount of loss for which

he is responsible under U.S. Sentencing Guideline § 2B1.1,

and that the loss calculation should also be reduced for

purposes of the restitution order. The government responds that Adcock waived the first of these points and

that the district court’s calculations were correct in any

event, whether used for the sentence or the restitution

order.

The Supreme Court has emphasized the difference

between waiver and forfeiture. See United States v. Olano,

507 U.S. 725, 730-34 (1993). There the Court wrote that

“[w]aiver is different from forfeiture. Whereas forfeiture

is the failure to make the timely assertion of a right,

waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Id. at 733 (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)). We do not lightly find

waiver, but in this case we think that the record can be
No. 07-1459 11

read in only one way, and that is as a waiver. At the

sentencing hearing, the following colloquy occurred

between Adcock’s counsel and the court:

COUNSEL: Your honor, I think Mr. Kistner did an

excellent job of putting the pre-sentence investigation together. I think for purposes of the dollar

amount for purposes of criminal liability under the

sentencing guidelines, the calculation is correct.

We would argue and will argue to the Court that

essentially the Government suffered no loss for restitution purposes. That is that it received value for the

monies expended.

I understand and I believe he correctly states the 41,000

dollar amount puts it within the range of 30 to 70,000

dollars. But my point is as to the objection that appears on page 23, we don’t have—I’m not withdrawing it, I’m just advising the Court of what if [sic]

is. I don’t see it as an objection that needs to be fleshed

out.

THE COURT: All right.

COUNSEL: You understand my point, Judge?

THE COURT: You’re arguing it as to the restitution

figure, not for the calculation of amount of loss for

guideline purposes?

COUNSEL: Correct. Because I believe the value

received—in fact, quite frankly, they did it lower than

anyone else could have done it. The Government

received value for it. Now, how they received it and

what was done incorrectly, that’s what we’re arguing.

Do you understand that issue?

THE COURT: Yes, I understand.
12 No. 07-1459

The district court concluded by saying, “There is now

no objection to the amount of loss calculation for loss

purposes,” and it repeated the same point in its written

post-sentencing order.

This is as square a waiver as one could find. As the

government notes, it is almost identical to the waiver

we found in United States v. Sensmeier, 361 F.3d 982, 986-

87 (7th Cir. 2004); see also United States v. Cunningham,

405 F.3d 497, 502 (7th Cir. 2005) (“. . . Cunningham’s

attorney’s affirmative decision to withdraw his objection

to the admission of the pictures as exhibits resulted in a

waiver of any argument that the government failed to

set forth a sufficient foundation for their admission.”).

Adcock offers two ways around this explicit waiver.

First, he attempts to rely on a pro se objection to the calculation of loss in the Presentence Investigation Report.

He included this among 12 pro se objections that he added

to the three that his attorney raised. But the court was

under no obligation to consider that pro se objection, even

if it had been explicit enough to alert the judge to the

argument (and we agree with the district court that it

was not), because Adcock was represented. Adcock also

briefly suggests that counsel rendered ineffective assistance

on this point, since he can imagine no strategic reason why

someone would concede an amount of loss for purposes

of sentencing but try to contest it for restitution. This

argument, however, is too abbreviated for us to assess

counsel’s effectiveness at this stage. Adcock may pursue

this point, if he wishes, in a petition under 28 U.S.C. § 2255.

But as we shall see in a moment, there may well be reasonable strategic reasons why an attorney would pursue a

challenge to a restitution amount without also quibbling

over the loss calculation under the guidelines.
No. 07-1459 13

Turning to the order requiring Adcock to pay HACC

$41,174.09 in restitution, we are met again with a

waiver argument from the government. Here, it complains only that Adcock did not spend much time in his

brief focusing on this issue. Indeed, a speed-reader might

skip right over the five lines that address restitution

directly. But, fairly read, we think that the general arguments Adcock made about the amount of loss were intended to address that calculation both for sentencing

purposes and for restitution purposes. Rather than dismiss this point on the ground of waiver on appeal,

we prefer to reach the merits.

At the outset, it is important to note that the definition

of loss for purposes of § 2B1.1(b)(1) is different from the

definition of loss for restitution purposes. Under the

Sentencing Guidelines, the court typically applies the

greater of actual or intended loss. See § 2B1.1(b)(1), cmt.

n.3(A). The comments to § 2B1.1 further specify that “[i]n

a case involving government benefits . . . loss shall be

considered to be not less than the value of the benefits

obtained by unintended recipients or diverted to unintended uses . . . .” Cmt. n.3(F)(ii). Adcock was certainly not

an intended recipient of HACC’s funds, regardless of

whether he might have taken those funds and done

with them something useful for HACC. Thus, it seems to

us that Adcock’s attorney made a reasonable strategic

decision to forego any challenge to the loss calculation

for guidelines purposes.

Because Adcock was convicted of a crime of fraud, he

was subject to the Mandatory Victim Restitution Act of

1996 (“MVRA”), 18 U.S.C. § 3663A(c)(1)(A)(ii). We described the scope of that statute in United States v. Havens,

424 F.3d 535 (7th Cir. 2005):
14 No. 07-1459

In the case of an offense resulting in damage to

property, the MVRA requires the defendant to return

the property to the victim or if that is not possible, to

pay the victim an amount equal to the loss of value

of the property. See § 3663A(b)(1). We have noted

that “[t]his measure of relief is less generous than

common law damages, since it does not extend to

consequences beyond the diminution of the value of

the property stolen or damaged.” United States v. Scott,

405 F.3d 615, 618 (7th Cir. 2005). This is because criminal restitution refers only “to the restoration of something that the defendant had taken from the plaintiff,

including a profit.” Id. at 619 (citations omitted).

424 F.3d at 537. Adcock argues that he did not take anything from the government. Instead, he points out, HACC

awarded A-1 the painting contract because it was the

low bidder; A-1 painted the apartments; and HACC

paid the agreed price. The contract price established, by

definition, the fair market value of the services that HACC

was seeking. Ergo, Adcock concludes, HACC suffered

no harm.

The district court saw things differently. The record

contained more evidence than that of the prices established in the contract between HACC and A-1 of the

value of the services. It contained both the evidence of

the nominal A-1 contract price and the evidence of what

the actual painter, Miller, was willing to accept for the

services she was rendering. Here is how the district court

put it:

The Housing Authority paid 70 some thousand

dollars or thereabouts for this painting contract. The

woman who did all the painting got 29,000 and some

dollars. You really were the force behind A-1 or A+
No. 07-1459 15

maintenance, got the rest. You didn’t do any of the

work. A little bit of money went for paint, a little bit

of money went for insurance, but a whole lot of

money went to you, and you didn’t do the work.

* * *

Well, if Naiden Miller was willing to do the work for

29,000 dollars, if only she had submitted a bid in her

own name, they wouldn’t have paid 70,000 for

what somebody would do for 29,000. They got 29,000

plus of painting, they didn’t get full value. To say that

they got full value says it is okay for you to pocket

38,000 dollars for virtually doing nothing except

pocketing the money through your bank accounts

for A-1.

In the end, the district court concluded that Adcock had

to pay $41,174.09 in restitution to HACC. It reached that

amount by adding up the $38,155.34 that it determined

Adcock had received in the scheme and an additional

$3,018.75 that HACC had to pay for an audit that uncovered his wrongdoing. The $38,155.34 figure, it is worth

noting, is lower than the total Adcock reaped from the

scheme. From April 1999 through March 2001, HACC

paid invoices from A-1 totaling $73,060. Subtracting

the $27,500 that Adcock paid Miller, that leaves $45,000

in profit to Adcock. The extra $7,400 or so was a reasonable amount to hold back for Adcock’s administrative

contributions. HACC paid directly for most of the paint,

and Miller purchased most of her own supplies, and so

there was little need to create an allowance for those

purposes. It was Adcock’s responsibility to present some

evidence to that effect, in response to the government’s

showing, and we can find nothing that undermines the

government’s numbers.
16 No. 07-1459

In a case involving loss of property, like this one, the

MVRA requires the defendant to pay an amount equal to

the value of that which was taken. See 18 U.S.C.

§ 3663A(b)(1)(B). It also requires the court to reimburse

the victim for “other expenses incurred during participation in the investigation or prosecution of the offense . . . .”

Id. § 3663A(b)(4).

We conclude that the district court’s factual conclusion

that Adcock’s services were minimal in value was not

clearly erroneous. The court reasonably found that the

bulk of the payments HACC made that did not find their

way to Miller were properly the subject of restitution, as

was the cost of the audit.

For these reasons, we AFFIRM the judgment of the district court, with respect to both Adcock’s convictions and

his sentence.

USCA-02-C-0072—7-16-08