In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1816

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES R. WHEELER,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Indiana, South Bend Division.

No. 06 CR 59—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED APRIL 15, 2008—DECIDED SEPTEMBER 2, 2008

____________

Before CUDAHY, KANNE and SYKES, Circuit Judges.

CUDAHY, Circuit Judge. A jury convicted James Wheeler

of embezzling, stealing or otherwise converting employee

contributions to his company’s health insurance and 401(k)

funds in violation of 18 U.S.C. §§ 669 and 664. The district

court sentenced him to concurrent 63 and 60 month

sentences and three years’ supervised release. On appeal,

Wheeler raises two challenges to his conviction. First, he

contends that the district court erred in defining the mens
2 No. 07-1816

rea element of the offense under § 669. He also argues that

the court admitted impermissible prior act evidence in

violation of Federal Rule of Evidence 404(b). In addition to

challenging his conviction, Wheeler challenges his sentence

on the grounds that the district court imposed an enhancement that lacked evidentiary support. We affirm

Wheeler’s conviction and sentence.

I. Background

James Wheeler is a former paper salesman with an

entrepreneurial streak. His enterprising spirit motivated

him to invest in several financially troubled printing

companies. By his account, he hoped to turn the companies around and make a profit. A more cynical view,

advanced by the government, is that he used at least one

of the companies as a personal piggybank, paying himself

large managerial fees while the struggling company

failed to make good on its debts and obligations to its

employees. Wheeler’s conduct with respect to that company, Gallery Graphics, was the subject of the criminal

prosecution leading to this appeal.

Wheeler’s foray into the corporate turnaround business

began in 2001 when he purchased Hiney Printing, a familyrun business in Akron, Ohio. In April 2002, Wheeler leased

Fortran Printing (Fortran), another printing company

facing a doubtful financial future. That same year, Wheeler

and his business partner, James Lundquist, approached

First Business Capital (FBC) seeking financing to purchase Peterson Printing, a medium-sized family-operated

company in South Bend, Indiana. Wheeler and Lundquist
No. 07-1816 3

reached an agreement with FBC under which Wheeler

would personally guarantee $900,000 of a $3,000,000 line

of credit from FBC and would contribute $200,000 of

paper stock as capital to Peterson Printing. After the

Peterson Printing sale closed in June 2002, Wheeler and

Lundquist became managers of the new venture, which

they renamed Gallery Graphics South Bend (Gallery

Graphics). The day-to-day operations at Gallery Graphics

were handled by its president, Michael Kile, and its chief

financial officer (CFO), Larry Parks. The financial situation

of Gallery Graphics declined quickly after the sale to

Wheeler. Wheeler had pledged to provide $200,000 of

paper stock pursuant to his agreement with FBC, but he

never did so. He withdrew $150,000 from Gallery Graphics

less than one month after purchasing the company,

ostensibly in order to purchase paper for the company.

Gallery Graphics never received the paper. The company

also paid him $148,000 in management fees and $28,000

to pay legal bills and credit card expenses. In early 2003,

FBC stopped funding Gallery Graphics due to Wheeler’s

repeated failure to fulfill promises to provide money and

paper to the company.

Beginning in December 2002, as Gallery Graphics’

financial situation grew increasingly precarious, Wheeler

became more involved in the day-to-day operations of

the company, directing Kile and Parks as to which bills

to pay. In early 2003, Wheeler directed Gallery Graphics

not to pay either the health or the retirement plan. But

employees who participated in the company health plan

authorized Gallery Graphics to withhold contributions

from their paychecks. Likewise, the contributions of
4 No. 07-1816

employees who participated in the company’s 401(k) plan

were automatically withheld from their paychecks. These

funds were placed in Gallery Graphics’ general operating

account and were supposed to be forwarded by check

to the insurance and retirement plans. Starting in 2003,

however, the funds that were withheld from employees’

paychecks to pay the premiums for those plans were

diverted for other purposes.

Based on the company’s nonpayment of premiums,

the health insurance company that carried the health

insurance plan cancelled the company’s coverage in

May 2003, retroactive to January 2003. In total, approximately $42,000 of employee health insurance contributions and $11,000 of employee 401(k) contributions that

had been withheld from employees’ paychecks never

reached the coffers of the respective plans. By late spring

of 2003, Gallery Graphics was on its last legs. On May 12,

2003, Wheeler wired $100,000 to the company to help fund

its final payroll. Two days later, on May 14, the health

insurance company sent employees a notice stating that

their insurance coverage had been cancelled. Around this

time, FBC installed a receiver and began liquidating

Gallery Graphics’ assets.

In May 2006, Wheeler was indicted for embezzling his

employees’ premiums. Count I of the indictment charged

him with knowingly and willfully embezzling $42,020.26

in health insurance premiums in violation of 18 U.S.C.

§ 669. Count II charged him with willfully embezzling

$11,702.53 of his employees’ 401(k) contributions in

contravention of 18 U.S.C. § 664. Wheeler’s jury trial
No. 07-1816 5

began on September 18, 2006. During the trial, the government introduced evidence relating to Wheeler’s nonpayment of employee contributions at Fortran. The evidence

showed that when Wheeler was in charge at Fortran,

insurance premiums were deducted from employees’

paychecks but were never remitted to the insurance plan,

resulting in cancellation of coverage. Ultimately, Fortran

went into receivership. The court permitted the introduction of this evidence (the Fortran evidence) over defense

counsel’s objection. After a five-day trial, the jury convicted Wheeler on both counts.

At sentencing, Wheeler objected to the amount of loss

calculation in the Pre-Sentence Investigation Report (PSR).

The amount of loss represented the sum of the unpaid

insurance premiums, unpaid 401(k) contributions and

medical claims that were incurred by employees but went

unpaid due to the cancellation of their health insurance

coverage. The PSR included in the loss amount all

unpaid medical claims from the time Wheeler acquired

Gallery Graphics in June 2002 through June 2003. Wheeler

objected to the inclusion of claims incurred by employees

in June 2003 on the grounds that the company “was

dissolved in late April, early May 2003.” The government responded to his objection by suggesting that the

court use May 12, 2003 as the cut-off date. That is, the

government urged the court to include all unpaid claims

that arose prior to the date Wheeler funded the company’s

final payroll. The court accepted the government’s recommendation as to the cut-off date. Using May 12, 2003 as the

cut-off date eliminated $3,073 from the amount of loss

figure in the PSR, yielding a total loss of $210,902.84. Under
6 No. 07-1816

the Sentencing Guidelines, a loss in excess of $200,000

corresponds to a twelve-level increase in a defendant’s

base offense level. U.S.S.G. § 2B1.1. After accounting for

adjustments to Wheeler’s base offense level, the district

court concluded that Wheeler’s total offense level was 26.

When considered alongside a criminal history category

of I, his offense level yielded a guideline range of 63 to 78

months’ incarceration. After reviewing the sentencing

factors set forth in 18 U.S.C. § 3553(a), the court sentenced

Wheeler to 63 and 60 months on Counts I and II respectively, to be served concurrently, as well as three years’

supervised release and restitution of $210,902.84. Wheeler

filed a timely notice of appeal on March 28, 2007.

II. Analysis

Wheeler raises three challenges to his conviction and

sentence. First, he argues that the district court erred in

failing to instruct the jury that conduct done “knowingly

and willfully” under 18 U.S.C. § 669 must be done in

contravention of a known legal duty. Second, he contends that the district court abused its discretion when

it permitted the government to introduce the Fortran

evidence. Finally, Wheeler argues that the court’s adoption of the amount of loss included in the PSR is clearly

erroneous. We take up each of his challenges in turn.

A. Jury instructions

Wheeler contends that the district court erred in failing

to instruct the jury that in order to find Wheeler guilty, in
No. 07-1816 7

the statutory language, of “knowingly and willfully”

misappropriating his employees’ health insurance premiums, they must conclude that he knew he was violating

the law. As a threshold matter, we must clarify the standard of review, which the parties dispute. The government asserts that Wheeler did not object to the proposed

definition of “knowingly and willfully,” and thus our

review is for plain error. Wheeler protests that he did

challenge the definition, although he concedes that he

may have done so unartfully. In order to preserve an

objection to a proposed jury instruction for appellate

review, “a party must object to the instructions, ‘stating

distinctly the matter to which the party objects and the

grounds of the objection.’ ” United States v. O’Neill, 116 F.3d

245, 247 (7th Cir. 1997) (quoting FED. R. CRIM. P. 30). “The

purpose of Rule 30 is to alert the district court to

potential problems in jury instructions and thereby avert

any error in the first place.” Id.

The district court did not define “knowingly and willfully” as a single defined term. Rather, after setting out

the elements of each offense, the district court provided

the jury with separate definitions of each term, defining

“knowingly” and “willfully” as follows:

The word “knowingly” means that the defendant

realized what he was doing and was aware of the

nature of his conduct, and did not act through ignorance, mistake, or accident. Knowledge may be proved

by the defendant’s conduct, and by all the facts and

circumstances surrounding the case.

When the word “willfully” is used in these instructions, it means that an act is done deliberately and
8 No. 07-1816

intentionally, as distinguished from something that is

merely careless, inadvertent, or negligent. Conduct

may be willful even if the actor had a good faith intent

to return the funds or had basically good intentions,

such as keeping the company afloat or preserving jobs.

Wheeler objected to the final sentence of the “willfully”

definition on the grounds that the defense had not suggested that Wheeler had acted in good faith and consequently, the sentence might confuse the jury. This objection

is substantively different from the objection Wheeler

now raises and could not be expected to focus the court’s

attention on the alleged error that Wheeler now seeks to

correct, namely that “knowingly and willfully” requires

proof that the defendant violated a known legal duty. See

Schobert v. Ill. Dep’t of Transp., 304 F.3d 725, 729 (7th Cir.

2002) (discussing sufficiency of objection under FED. R.

CIV. P. 51 and explaining that “[t]he objection must be

specific enough that the nature of the error is brought

into focus”). Because Wheeler did not explain to the

district court the objection he raises on appeal, he has

not preserved it. Id. at 730. Thus, we review his claim for

plain error. United States v. Jackson, 479 F.3d 485, 491 (7th

Cir.), cert. denied, 128 S. Ct. 49 (2007).

Wheeler faces an uphill battle since it is rare that we

reverse a conviction on the basis of an improper jury

instruction to which there was no objection. Id; United

States v. Griffin, 84 F.3d 912, 925 (7th Cir. 1996) (“Our plain

error review is particularly light-handed in the context of

jury instructions.”). An error is “plain” if it was “(1) clear

and uncontroverted at the time of appeal and (2) affected
No. 07-1816 9

substantial rights, which means the error affected the

outcome of the district court proceedings.” United States

v. Fernandez, 282 F.3d 500, 509 (7th Cir. 2002).

18 U.S.C. § 669 provides:

Whoever knowingly and willfully embezzles, steals, or

otherwise without authority converts to the use of any

person other than the rightful owner, or intentionally

misapplies any of the moneys, funds, securities,

premiums, credits, property, or other assets of a health

care benefit program, shall be fined under this title

or imprisoned not more than 10 years, or both . . . .

Neither the parties nor this court have been able to

identify a case interpreting “knowingly and willfully” in

the context of § 669. “ ‘Willful[ ]’ . . . is a ‘word of many

meanings,’ and ‘its construction [is] often . . . influenced by

its context.’ ” Ratzlaf v. United States, 510 U.S. 135, 141

(1994) (quoting Spies v. United States, 317 U.S. 492, 497

(1943)). It may refer to a defendant’s “awareness of his

conduct (i.e., that it be intentional),” or to his “conscious

awareness of both his conduct and its illegality.” Griffin, 84

F.3d at 925. Where a defendant is accused of violating a

technical statute, such as a criminal tax statute or a statute

prohibiting the structuring of financial transactions,

“willfully” has been construed to require proof that the

defendant acted with knowledge that his conduct violated

a legal duty. See, e.g., Ratzlaf, 510 U.S. at 144-46 (structuring); Cheek v. United States, 498 U.S. 192, 201 (1991) (violation of tax laws); United States v. Kelley, 864 F.2d 569, 573

(7th Cir. 1989) (same). Unlike the statutes at issue in Ratzlaf
10 No. 07-1816

or Cheek, § 669 is not the kind of technical statute that the

Supreme Court has found to be an “exception to the

traditional rule that ignorance of the law is no excuse.”

Bryan v. United States, 524 U.S. 184, 195 (1998) (internal

quotation marks and citation omitted). The prohibition

on stealing or converting employee health insurance

funds does not involve the kind of complex statutory

scheme at issue in the federal tax or structuring laws

that may create a trap for the unwary.

Still, there is some support for the argument that in

general, “willfully” means more than acting intentionally

when it is used conjunctively with “knowingly.” See United

States v. Ill. Cent. R.R. Co., 303 U.S. 239, 243 (1938) (“ ‘Willfully’ means something not expressed by ‘knowingly,’ else

both would not be used conjunctively.”) (citation omitted);

United States v. Stockheimer, 157 F.3d 1082, 1088 (7th Cir.

1998); United States v. Bates, 96 F.3d 964, 970 (7th Cir. 1996),

aff’d, 522 U.S. 23 (1997) (construing 20 U.S.C. § 1097(a), a

statute that makes it a crime to “knowingly and willfully”

misapply federally insured student loan funds, to

require proof that the defendant knew his conduct was

unlawful). In general, courts are reluctant to treat

statutory terms as “mere surplusage,” and the Supreme

Court has observed that “resistance should be

heightened when the words describe an element of a

criminal offense.” Ratzlaf, 510 U.S. at 140-41; see also Potter

v. United States, 155 U.S. 438, 446 (1894). Thus, there is a

plausible argument that the use of “knowingly and willfully” in § 669 may require that a defendant know that

his conduct was in some way unlawful.
No. 07-1816 11

Even if the court’s instruction on the mens rea element of

§ 669 may have been erroneous, in order for an error to

be “plain,” it must “be sufficiently certain and sufficiently

prejudicial that the trial judge and prosecutor were

derelict in countenancing it.” United States v. Caputo, 978

F.2d 972, 975 (7th Cir. 1992). Here, the absence of controlling case law on the question of § 669’s mens rea and the

fact that “ ‘[w]illfully’ is a notoriously slippery term,”

United States v. Ladish Malting Co., 135 F.3d 484, 487 (7th

Cir. 1998), weigh against the plainness of any error.

Moreover, even if the jury instructions were erroneous,

Wheeler cannot satisfy the third requirement of plain error

analysis, i.e., “that the error affected the defendant’s

‘substantial rights.’ ” United States v. Ross, 77 F.3d 1525,

1540 (7th Cir. 1996) (citation omitted). This prong of our

plain error analysis “calls for the same inquiry as ‘harmless error’ analysis, except that here the defendant bears

the burden of persuasion with respect to prejudice.” Id. As

applied to this case, in order to show that the alleged

error warrants reversal of his conviction, Wheeler must

show “that the jury verdict in this case was actually

affected by the district court’s faulty instruction.” Id. He

must establish that the error is “likely to have made a

difference in the judgment, so that failure to correct it

could result in a miscarriage of justice, that is, in the

conviction of an innocent person.” United States v.

Newman, 965 F.2d 206, 213 (7th Cir. 1992).

Although in general, the failure to instruct the jury

clearly on an element of the crime is plain error, this is

not always the case. See United States v. Kerley, 838 F.2d 932,
12 No. 07-1816

938 (7th Cir. 1988). “[T]he effect rather than the

character of an instructional error is what is important.”

United States v. Perez, 43 F.3d 1131, 1139 (7th Cir. 1994).

Wheeler contends that the court’s error created a presumption as to the disputed element of intent. We disagree. The

dispute over intent at trial focused on whether Wheeler

knew that the premiums were not being remitted as

required. Rather than creating a presumption as to this

disputed issue, the instructions required the jury to find

that Wheeler knew that the premiums were not being

applied to pay for the company’s insurance coverage.

Moreover, the underlying acts themselves subsume a

finding of bad purpose. The jury was required to find

that Wheeler “did knowingly and willfully . . . embezzle,

steal, otherwise without authority convert to the use of

any person other than the rightful owner or intentionally

misapply” assets of the health insurance program. “Embezzle” was defined as “the fraudulent appropriation

of property by one lawfully entrusted with its possession”

and “convert” as “the use of property in an unauthorized

manner or to an unauthorized extent.” Wheeler

essentially contends that the jury may have concluded

that he embezzled or converted without authorization

the employees’ premiums but that he thought doing so

was lawful. This seems rather implausible and is further

undermined by Wheeler’s own testimony. At trial, Wheeler

admitted that he knew the premiums were supposed to

be paid and claimed that he believed they were being

remitted. Thus, his own testimony evinces an awareness

of the wrongfulness of the failure to pay them. Assuming,

without deciding, that the court erred in its instruction
No. 07-1816 13

In a footnote in his opening brief, Wheeler invites us to 1

interpret “willfully” to require the violation of a known legal

duty as it applies to the entirety of Chapter 31 of the Criminal

Code and, in doing so, to vacate Wheeler’s conviction under

18 U.S.C. § 664. Wheeler does not provide any support or

argument for his suggestion that “willfully” as set forth throughout Chapter 31 means the violation of a known legal duty.

We decline to take up a contention raised as a skeletal argument. APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d

624, 631 (7th Cir. 2002) (“[C]onclusory analysis will be construed as waiver.”).

to the jury, its error was not so outrageous as to cast

doubt on the fairness, integrity or reputation of the proceedings and does not require remand for a new trial.1

B. Fortran evidence

Wheeler contends that the admission of the Fortran

evidence violated Federal Rule of Evidence 404(b). We

review the admission of prior act evidence for abuse of

discretion. United States v. Mallett, 496 F.3d 798, 801 (7th

Cir. 2007). “Rule 404(b) prohibits the use of evidence of

other bad acts to show that a defendant has a propensity

to commit a crime and that he acted in accordance with

that propensity on the occasion in question.” United States

v. Chavis, 429 F.3d 662, 667 (7th Cir. 2005). To ensure that

prior act evidence is not admitted to prove “the defendant’s character or that he acted in conformity with that

character on a given occasion,” United States v. Ross, 510

F.3d 702, 713 (7th Cir. 2007), such evidence may be admitted only if the following criteria are satisfied:
14 No. 07-1816

(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propensity

to commit the crime charged; (2) the evidence shows

that the other act is similar enough and close enough in

time to be relevant to the matter in issue; (3) the

evidence is sufficient to support a jury finding that

the defendant committed the similar act; and (4) the

evidence has probative value that is not substantially

outweighed by the danger of unfair prejudice.

Mallett, 496 F.3d at 801. The district court permitted the

government to introduce evidence of the nonpayment of

employee health insurance premiums at Fortran in order

to show that Wheeler knew how insurance premium

withholdings must be handled and to show the absence

of mistake or accident. Wheeler concedes that the

Fortran evidence served these non-propensity purposes.

Wheeler argues that the Fortran evidence fails to satisfy

the second prong of our Rule 404(b) test because it was

not similar enough to his alleged conduct at Gallery

Graphics to be probative of knowledge or lack of mistake.

The similarity “prong of our Rule 404(b) analysis need not

be unduly rigid: we have stated that ‘when evidence is

offered to prove intent, the degree of similarity is

relevant only insofar as the acts are sufficiently alike to

support an inference of criminal intent.’ ” United States v.

Long, 86 F.3d 81, 84 (7th Cir. 1996) (quoting United States v.

Lloyd, 71 F.3d 1256, 1264-65 (7th Cir. 1995)) (emphasis in

original). Whether the prior conduct is similar enough to

the acts for which the defendant is being tried “depend[s]

on the theory that makes the evidence admissible, and
No. 07-1816 15

must be reached on a case-by-case basis.” Id. (quoting

United States v. Torres, 977 F.2d 321, 326 (7th Cir. 1992)).

Wheeler points out that he owned Gallery Graphics

for almost one year but only leased Fortran for approximately two months, and that the incident at Fortran

involved bounced checks rather than a complete failure

to attempt to send premiums to the insurance company.

These differences are “distinction[s] without substance.”

United States v. Jones, 455 F.3d 800, 809 (7th Cir. 2006)

(quoting United States v. Puckett, 405 F.3d 589, 597 (7th

Cir. 2005)). Wheeler also contends that he was much

more involved in the operations at Gallery Graphics

than at Fortran. The extent of his involvement in

Fortran was established in part by the testimony of Mark

Dottore, the individual who was appointed to be the

receiver for Fortran. Dottore testified that Wheeler controlled the day-to-day operations at Fortran and that

funds withheld from Fortran employees’ paychecks to

pay their health insurance premiums stopped being sent to

the insurance company shortly after Wheeler leased

Fortran. In sum, at both Fortran and Gallery Graphics—

two companies controlled by Wheeler—employees’ health

insurance premiums were withheld from their paychecks but were never paid to the insurance company,

resulting in cancellation of the employees’ insurance

coverage. The events at Fortran and Gallery Graphics

are sufficiently similar to satisfy the second prong of our

Rule 404(b) analysis.

Wheeler also contends that there is insufficient

evidence to support a jury finding that he was responsible
16 No. 07-1816

for the mishandling of employee premiums at Fortran. To

satisfy the third prong of our Rule 404(b) analysis, the

government is not required to produce smoking gun

evidence of the defendant’s culpability in the prior conduct. The third prong is satisfied if the evidence

presented is such that “the jury can reasonably conclude

that the act occurred and that the defendant was the actor.”

Huddleston v. United States, 485 U.S. 681, 689 (1988); see also

United States v. Burke, 425 F.3d 400, 410 (7th Cir. 2005). As

we have noted, Dottore testified that Wheeler controlled Fortran. Lundquist, Wheeler’s former partner,

testified that Wheeler directed the cash disbursements

at Fortran. Thus, even in the absence of direct evidence

that Wheeler ordered the nonpayment of premiums at

Fortran, the government adduced sufficient evidence

that a jury could reasonably find that he was responsible

for the nonpayment of premiums. The evidence was

properly admitted under the third prong of the test.

Finally, Wheeler argues that the prejudicial effect of

the evidence substantially outweighed its probative

value. It is significant to our analysis of the prejudice

prong that Wheeler refused a limiting instruction. We

have noted that the risk of unfair prejudice can be mitigated by a limiting instruction. See, e.g., Jones, 455 F.3d at

809 (limiting instructions “are effective in reducing or

eliminating any possible unfair prejudice from the introduction of Rule 404(b) evidence”) (citation omitted); United

States v. Best, 250 F.3d 1084, 1093 (7th Cir. 2001). Wheeler

was twice offered a limiting instruction and twice

declined it. Because Wheeler waived the opportunity to

alleviate the risk of unfair prejudice, we decline to
No. 07-1816 17

reverse the district court’s evidentiary ruling on the

grounds that the Fortran evidence was unfairly prejudicial.

See Goetz v. Cappelen, 946 F.2d 511, 514 (7th Cir. 1991)

(defendants’ declination of limiting instruction waived

their claim of prejudice).

C. Amount of loss

Wheeler’s final challenge is to the district court’s amount

of loss determination, which we review for clear error.

United States v. Lopez, 222 F.3d 428, 436 (7th Cir. 2000).

A defendant who challenges a district court’s loss calculation carries a heavy burden, for he must show “that the

calculation was not only inaccurate, but also outside the

realm of permissible computation.” United States v. Mantas,

274 F.3d 1127, 1131 (7th Cir. 2001). At his sentencing

hearing, Wheeler argued that because Gallery Graphics

closed down “in late April, early May, depending on what

you determine to be the final day,” it was inappropriate

to include medical claims that employees incurred after

the company closed down. After the company closed in

late April or early May, he reasoned, employees could not

reasonably expect their health insurance coverage to

continue into June.

Wheeler contends that the district court’s selection of

May 12, 2003 as the cut-off date for unpaid medical

claims was arbitrary. He asserts that Gallery Graphics

had closed its doors well before May 12, 2003. Although

the company’s former CFO, Parks, testified that the

facility stopped producing product toward the end of

April 2003 and closed, he also testified that he continued
18 No. 07-1816

to work with Wheeler to reopen the facility. In addition,

Parks testified that Wheeler told him that the 401(k) and

health insurance premiums would be paid once he obtained funding. The company had a payroll date in May

2003 and Wheeler testified at trial that employees were

ready to walk out the door before he wired the $100,000

on May 12, suggesting that the company had not closed

for good as of that date. On May 14, 2003, the insurance

company gave employees notice that their coverage

had been cancelled. The court’s selection of a date two

days before that official notice was sent was a reasonable

estimate of the date after which no employee could

have reasonably believed he had insurance coverage.

Wheeler also argues that the evidence on which the

court relied did not support its loss determination. At

sentencing, the government introduced a spreadsheet that

showed the claims that were submitted to the health

insurance company and the dates of service for those

claims. Wheeler contends that this evidence is insufficient to support the amount of loss found by the

district court because the document did not list the

names of the employees who submitted claims. Wheeler

argues that some of these employees may have left the

company before they submitted claims and that it would

be unfair to include in the amount of loss calculation

claims an employee submitted after he was no longer

employed at the company, i.e., when he could not reasonably expect to have insurance coverage through

Gallery Graphics. Wheeler does not cite any evidence

that supports his bare speculation and the court’s reliance

on evidence of employees’ claims that were accrued
No. 07-1816 19

before the insurance company cancelled coverage was not

“outside the realm of permissible computations.” United

States v. Radziszewski, 474 F.3d 480, 486 (7th Cir. 2007)

(quoting Lopez, 222 F.3d at 437).

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.

9-2-08