## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Universal Public Transpor tation , Inc. , 2012 IL App (1st) 073303- B

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. UNIVERSAL PUBL I C TRANSPORTATI ON, I NC., Def

endantAppellant.

District & N o. First District, Third Division Docke t No. 1-07-3303

Filed May 23, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In the prosec ution of defe ndant cor poration for the fraudulent bi lling of the State of I llinoi s for transporting public aid rec ipients to medical
ap pointments, the State proved that the corpor ation’s de facto offic er s committed vendor frau d
, t h eft and money laundering and the evidenc e supported the corpor ation’s co n victions for those crimes, the
corpor ation’s convictions did not conf l i ct with the acquittal of the nominal owner of the corpor ation for the same charg es, and the admission of cer tain exhibi t s as business rec ords was not an abuse of discretion; howeve r, the restitution order was reve rsed and the cause was rema nded
to establis h an appropr iate amount for restitution, since the trial court failed to consider the value of the service s defe ndant rende red in order ing restitution.

Dec ision Under Review Appea l from the Circuit Court of C o o k C ounty , No. 04-CR-2262; the Hon. J ames B . L inn, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d.Counsel on

Appea l Delgado, Adam, Robertson & Tierna n, P.C., of Chicag o (R o b er t Robertson, of counse l), for a ppellant.

L isa M ad i gan, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and Ka rl R. Triebe l, Assistant Attorney s Gene ral, of c ounsel), for the People.

Panel J USTI CE NEVI L L E delivere d the judg ment of the c ourt, with opinion.
J ustices Salone and Ster

ba conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Our supreme court direc ted us to vacate the judgme nt we filed in this case on Marc h 31, 2010, and to rec onsider the case in l ight of People v. Gutman
, 2011 I L 110338. We now

vacate the earlier judgme nt and substitut e this opinion in its place

. People v. Un i ve rsal Public Transportat ion, Inc. , 401 I ll. App. 3d 179 (2010), appeal denied, No. 110326 (Jan. 25, 2012). ¶ 2 Following a b en ch t ri al
, t h e t ri al co u rt fo u n d t h e defe ndant, Universa l Publi c Transpor tation, Inc. (UPT), guilty of vendor fr aud (305 I L CS 5/8A-3 (West 2000)), theft (720 I L CS 5/16-1 (West 2 0 0 0 ))
, and money launder ing (720 I L CS 5/29B-1 (West 2000)). The court sentenc ed UPT to one-y ea r co n d itional discharg e and order ed it to pay $2,966,187.38 in r estitution and $200,000 in f ines. On appea l, U PT presents the f ollowing issues for our revie w: (1) w h et h er the State proved UPT guilty beyond a reasonable doubt of vendor fra

ud, theft and m o n ey l aundering ; (2) whether UPT’s convictions wer e leg ally inconsistent with the acquittal o f UPT’s owner on the same char g es; (3) whether the trial
court err ed in admitting financi al rec ords from the I llinois Depa rtment of Public Aid (De partment) as business rec ords; and (4) whether the t rial court err ed in order ing UPT to pay in restitution the total amount the State paid to UPT, without any offse t for the value of the servic es that UPT provided to the State. ¶ 3 On t h e i n i t i al appea l, we aff irmed the convictions for vendor fra ud and theft, b u t we

reve rsed the conviction for mon ey l aundering and rema nded for rec onsideration of the
sentenc e, including restitution. Our supreme court, in Gutman
, reje cted the interpre tation of the money launder ing s t at u t e t hat we relied on in our ear lier decision in this case

. Upon

rec onsideration in light of Gutman
, we find that t h e State proved UPT’s de facto office rs committed vendor fraud, theft and money launder ing in the c ourse of their work on behalf

o f UP T, and there fore the evidenc e supports the convictions of UPT for all three crimes. Be cause the de facto office rs, and not the nominal owner of UPT, con t ro l l ed UP T, the acquittal of the nominal owner does not conflict with the convictions of UPT for the crimes

-2-char g ed. UPT waived revie w of the issue conce rning business rec ords. The trial court should

have considere d the value of the service s UPT provided in deter mining the amount of restitution UPT owed to the State. There fore
, we aff irm UPT’s convictions, vacate the order for r estitution, and remand f or re assessment of r estitution.

¶ 4 BA CKGROUND ¶ 5 I ly a L

ubenskiy met Irit Gutm an i n 1 9 9 3 wh en t h ey wo rk ed fo r A. K. M edical Transpor tation Company (A.K.)

. In 1995, Lubenskiy and Gutman opened Eg ra Medica l Transpor tation, which provided transportation for public aid rec ipients who neede d help to g et to their medical appointments. Recipients called the public aid office to ask for transportation, and if the rec ipient had an up-to-date medical rec ord and doctor’s approva l, the public aid office would schedule the transportation with a medical tr an s p o rt at ion
company , like UPT. The public aid office would then complete a prior a pproval for

m. The prior approva l form consisted of two copies–a white copy and a y ellow copy

. The public aid office kept t he white copy for its rec ords an d the m edica l transportation provider rec eived the yellow copy

. ¶ 6 T h e fo rm i n cl u d ed a n u mber used to indicate the cate g ory of service the medic al transp ortation company provided to the public aid rec ipient. Providing transportation to a whee lchair- bound rec ipient had a differ ent code from providing transportation t o an ambulatory

rec ipient. The code for the w heelc hair-bound r ecipient trig g ere d a hig her le vel of compensation t o the transportation provider. The form also included space for the transportation provider to indi ca t e t he distance of the trip. The medical transportation
company rec eived greater c ompensation for long er trips. ¶ 7 In 1999, the public aid office sent Eg ra a prior approva l form with an incorre ct code. The code indicated that the rec ipient could walk, but UPT actua lly had to transport the rec ipient in a whee lchair. Gutman protested the use of the wrong code. The person from the public aid office instructed Gutman to delete the incorre ct code and insert the corr ect code. Gutman and Lubenskiy
, for Egra, beg an to make simil ar chang es on other prior approva l forms, and Eg ra order ed blank prior approva l forms. In order to incre ase pay ments to Eg ra, Gutman and Lubenskiy altere d destinations, chang ed the cate g ories of service
, and incre ased the number of miles trave led as shown on the forms. Eg ra billed the public aid office for the work shown

on the forms, with false information about destinations and cate g ories of service

. The public aid offic e paid some of

the bills before discoveringthe fra ud. ¶ 8 In Dec ember 1999, Lubenskiy and Gutman agree d to a perma nent ban preve nting them from participating in the M edica re prog ram, all other fede ral he althcar e programs, and the I llinois Medica l Assistance Prog ram. Under the terms of the agree ment, Lubenskiy and Gutman could not direc tly or indirectly own 5% or more of a corpor ate vendor or provider, they could not order

g oods or service s from a provider, and they could not r ender g oods or service s as an e mploy ee of a vendor

. ¶ 9 Rather than sell Eg ra’ s assets, Lubenskiy and Gutman decide d to defy the ban by trying
to continue to operate Eg ra cover tly

. They ch o s e t o rename the company and find a third

-3-partne r to pose as t h e s o le owner of the newly named company

. In Dec ember 2000,

Lubenskiy and Gutman a g ree d to g ive M ike Ti shel one-third of the company and a salary
, and Tishel agree d to pose as the sole owner of the company

. Lubenskiy
, Gutman and Tishel named the ne w company

UPT. ¶ 10 UP T b ega n d o i n g b u siness on J anuar y 16, 2001. Ex cept for the name chang e, t h e business rema ined the same: it had the same vehicles, the same drivers, the same employ ees and the same office space as Eg ra. Fr om J anuar y 16, 2001, until Fe bruar

y 2002, UPT billed the State of I llinois approximately $6 milli on and the State paid UPT almost $3 milli on. In Fe bruar y 2002, Lubenskiy and Gutman sold the business to Arik Amzaleg and Tishel for $600,000. ¶ 11 On J anuar

y 20, 2004, prosec utors char g ed UP T
, Gu t m an, Tishel and Lubenskiy with vendor fraud, theft, and money launder ing. On November 3, 2004, Lubenskiy

enter ed int o

a plea agree ment with the State, agree ing to plead guilty to vendor fra ud and to testify ag ainst Gutman, Tishel, and UPT in exchang e for dismiss al of charg es of theft and money launder ing and a reduc ed sentenc e for vendor fra ud. On April 25, 2005, Gutm an fi l ed a m o tion for

sever ance , and the trial court gra n t ed t h e motion and held simult aneous bench trials that involved Gutman, Tishel, and UPT.

¶ 12 The State’s Case ¶ 13 Lubenskiy testified that he kept UPT’s books, an d Gut man manag ed the business and talked with the public aid office on UPT’s behalf
, using an alias. UPT, like Eg ra, submitt ed false bills to the State. L

ubenskiy admitted that on prior approva l forms he sent to the State

on UPT’s behalf

, he chang ed service cate g ories, chang ed tr i p d es tinations, overstate d mileag es and inc rea sed the number of trips billed, all to make ser vices more expensive. ¶ 14 On cross-e x amination, Lubenskiy tes t i fi ed t h at T i shel did not know about the fa lse billings. Specifica lly
, Lubenskiy explained that Tishel ran a leg itimate business out o f the UPT office location while Lubenskiy ran a second business from a second office

. Lubenskiy could not guess what perc entag e of the bills s en t t o t h e S tate acc urate ly ref lected service s UPT provided. ¶ 15 Alla Den i s en k i o , an employ ee of UPT, testified t hat s he took order s for tra nsportation services and rela

y ed the order s to other employ ees, who helped provide the reque sted service s. Denisenkio swore that she neve r cr eate d false billing s. ¶ 16 Robert Kramer, of the Depa rtment, testified that the public aid office could not locate a ll of UPT’s prior approva l forms. Kramer prese nted in court a box that co n t ai n ed some of UPT’s prio r approva l forms that the public aid office reta ined. Kramer testified that the Depa rtment kept the c ontents of the box in the re gular c ourse of business. ¶ 17 An investiga t o r fo r the I llinois State Police found that on many of its prior appr oval forms, UPT overstate d the mileag e betwee n the service rec ipients’ homes and their destinations for medical service s. The investigator testified that he compiled the information into an investigative repor t and g ave the repor

t to Virma Rodrigue z, an auditor for the I llinois State Police and the De partment.

-4-¶ 18 Rodrigue z testified that she and t h e De p ar tment’s data control manag er compar ed the

prior approval forms Kramer found with the bills UPT submitt ed to the Depa rtment from J anuar y 2001 to Fe bruar

y 2002. I f the rec ipient’s name, identification number or service date from the Depa

rtment’s copy of the prior approva l form did not match the information from UPT’s bill, Rodrigue z considere d the billing false. Rodrigue z testified that of the $71,280.40 UPT billed the State of I llinois on the forms she revie wed, $67,798.18 came from false billings. ¶ 19 Rodrigue z also compar ed mileag es claimed on some of UPT’s bills with proper mileag es for the reque sted transportation to and from cer tain addre sses from J anuar y 2001 until Fe bruar y 2002. Rodrigue z found that the State paid UPT $235,106.01 for trips that should have c ost the State $67,769.70. ¶ 20 Arik Amzaleg
, who boug ht a 50% interest in UPT on Fe bruar y 27, 2002, estimated that UPT’s leg itimate billi ng s aver ag ed about $70,000 or $100,000 per month. ¶ 21 T h e De p ar t ment’s data control manag er testified that from J anuary 1
, 2 0 0 1
, u n t i l Fe bruar y 28, 2002, the State paid UPT $2,966,187.38. ¶ 22 The trial court rea d Tishel’s bond hear ing testimony into the rec ord. When asked at the bond rehe aring if he was the owner of UPT, Tishel responde d, “I was the only one on paper

. God what they

did to me.” Tishel said Gutman e ffe ctively owned the busine ss.

¶ 23 UPT’s Case ¶ 24 Meir Rothstein testified that he was a rea l es ta te a g e nt and broker ed businesses. Rothstein
went to UPT on a daily basis and saw Tishel run the business. During this time, he never saw Lubenskiy at UPT. Lubenskiy was not involved in the neg otiations for the purcha se of UPT. Rothstein testified that he has known Tishel for approximately 22 y ear s and that Tishel has

a re putation for beinga man of his word. ¶ 25 Moshe Tishel, codef end a nt Tishel’s son, testified that he was responsible for maintaining
t h e company vehicles when his fathe r owned UPT. Moshe testified that ther e wa s n o kickbac k scheme

. Finally
, Moshe testified that the only contac t he had with L ubenskiy was when L ubenskiy lease d a vehic le to UPT.

¶ 26 Trial Court’s F indings ¶ 27 On April 19, 2007, the trial cour t dismi ssed the cha

rg es ag ainst Tishel, but found UPT
guilty of vendor fra

ud, theft and money launder ing. The trial court found that UPT came into exis tence for one rea son: to allow Lubenskiy and Gutman to continue in a business endea vor afte r the fede ral go v er n ment barr ed them from eng ag ing in that business. Lubenskiy and Gu t m an n eeded a front man for UPT, and Tishel “agree d to be the straw man for t h em knowing that they wer e barr ed from doing business.” The trial court further found that Lubenskiy and Gutman preva iled upon Tishel to put the business in his name, but the State failed to prove that Tishel took part in the irre gularities that took place at UPT.

-5-¶ 28 Posttrial Motions

¶ 29 On May 16, 2007, UPT made a motion to vacate the finding s of guilt. On J une 11, 2007, UPT filed a supplemental m otion for reconsider ation or, i n the alternative, a new trial. On J une 12, 2007, at a hear ing on the motions, the court reiter ated its finding that Gutman and Lubenskiy acte d as the de facto office rs of UPT. The court added that treating Tishel as the sole office r would “stand ever y thing on its head.” On J uly 24, 2007, the co u rt denied the
po s t t ri al motions and order ed UPT to pay restitution of $2,966,187.38, and fines of $200,000. ¶ 30 On August 21, 2007, UPT filed a motion to reco n s i d er o r m o d i fy t h e sentenc e. On October 23, 2007, the trial court denied UPT’s motion to rec onsider or modify its sentenc e, amende d the sentenc e to include a one-year conditional discharg e, and aff irmed its J une 24, 2007, order direc ting UPT to pay restitution of $2,966,187.38 and fines of $200,000. Finally
, on November

20, 2007, UPT filed a notice of appe al.

¶ 31 ANALYSI S ¶ 32 Sufficienc y of the Evidenc e ¶ 33 UPT contends that t h e S t ate failed to prove it guilty of vendor fra ud, theft and money launder ing be yond a reasonable doubt. A reviewing court, when revie wing the suffic iency of t he evidence, must deter mine “ ‘ “whe ther, after viewing the evidence in the l i gh t m ost favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime beyond a re asonable doubt.” (Emphasis in orig inal.)’ ” People v . Cardamone
, 232 I ll. 2d 504, 511 (2009) (quo t i n g People v. Bush
, 214 I ll. 2d 318, 326 (2005), quoting Jack son v. Virginia
, 443 U.S. 307, 319 (1979)) ; People v. Colli ns , 10 6 I l l

. 2 d 2 3 7, 261 (1985). A revie wing court must also allow all rea sonable infere nces from the rec ord in favor of t he prosecution

. Ca rd

a mone , 232 I ll. 2d at 511 (quoting Bush
, 214 I ll. 2d at 326, citing People v. Cunningham
, 212 I ll. 2d 274, 280 (2004)). A reviewing court will not substitut e its judgme nt for that of the trier of fac t. People v. Sutherl a n d
, 2 2 3 I l l. 2d 187, 242 (2006) (citing People v . Colli ns , 214 I ll. 2d 206, 217 (2005)). The trier of fa ct must determine the witnesses’ cre dibility , d ec i d e h o w much weight to g ive eac h witness’s testimony
, resolve conflicts in the evidenc e, and draw rea sonable infere nces from the testimony

. Sutherl a n d
, 223 I ll. 2d at 242 (citing People v. Milka
, 211 I ll. 2d 150, 178 (2004), and People v. Evans
, 209 I ll. 2d 194, 211 (2004) ). W e wi l l reverse a trier of fac t’s finding s and cre dibilit y deter min at i o n s o n l y if they are ag ainst the manifest weight of the evidenc e. People v. Richardson
, 234 I ll. 2d 233, 251 (2009) (citing People v. Slater
, 228 I ll. 2d 137, 149 (2008), and In re Christopher K. , 217 I ll. 2d 348, 373 (2005)). ¶ 34 UP T ar gues that we should reve rse the convictions beca use the State’s case ag ainst i t depende d on the inhere n t l y i n credible testimony of Lubenskiy

. Howeve r, the trier of fac t knew of Lubenskiy ’s admitted participation in the illega l activities in this case , but the trier of fac t found Lubenskiy cre dible. This court finds no adequate g rounds for disturbing the trial court’s assessment of Lubenskiy ’s cre dibil i ty

. See Sutherland
, 223 I ll. 2d at 242 (citing Colli ns , 214 I ll. 2d at 217).

-6-¶ 35 Next, UPT contends that the State failed to pr ove all of the elements neede d to suppor t

a conviction of a corpor ation for the crimes char g ed. A corpor ation can act only throug h its
ag ents. People v. Bohne
, 312 I ll. App. 3d 705, 708 (2000). Section 5-4 of the Criminal Code of 1961 (Criminal Code) explains that the State may prosec ute a corpor ation for the commission of an offe nse if: (1) a high manag eria l ag ent, (2) acting within the scope of his

or her employ

ment, and (3) i n b eh al f of the corpor ation, (4) authorized, reque sted, commanded, or perf

ormed the offe nse. 720 I L CS 5/5-4(a) (2) (West 2000). Section 5-4(c )(2) of the Criminal Code define s a “hig h manag eria l ag ent” as “an office r of the corpor ation, or any other ag ent who has a position of compar able authority for the formulation of corpor ate policy or the supervision of subordinate employ ees in a manag eria l capa city .” 720 I L CS 5/5- 4(c) (2) ( West 2000). ¶ 36 W e t ak e j udicial notice of Gutman’s convictions for vendor fra ud, theft an d m o n ey launder ing, and of our s upreme court’s decision aff irming those convictions on appea l. Gutman , 2011 I L 110338, ¶ 46. Also, Lubenskiy pled guilty

to vendor fr aud in conne ction with the inflated bills he submitt ed to the State of I llinois on behalf of UPT. I f Gutman and Lubenskiy serve d as high manag eria l ag ents of UPT, and they acte d within the scope of their employ ment and on beha lf of UPT when they committed the crimes of vendor fra ud, theft and money launder ing, then the convictions of UPT for tho s e crimes must also stand. See 720 I L CS 5/5-4(a) (2) (West 2000). UPT argues that the State failed to prove (1) that Gutman and Lubenskiy serve d as high manag eria l ag ents of UPT, (2) that Gutman and Lubenskiy
acte d within the scope of their employ ment with U PT, a

nd (3) that Gutman and Lubenskiy
acte d on behalf

of UPT when the y

committed their crimes. ¶ 37 The trial court found that Gutman and Lubenskiy serve d as de facto office rs of UPT. We will not re verse the trial cour t’s finding s of fac t unle ss the manifest weight of the evidenc e require s contra

ry finding s. Richardson
, 234 I ll. 2d at 2 5 1 (citi ng Slater
, 228 I ll. 2d at 149, and In re Christ opher K.
, 217 I ll. 2d at 373). The evidenc e established that: (1) Gutman and Lubenskiy owned and operated Eg ra; (2) afte r acc epting a ban from operating Egra and from participating in any medical transportation provider, Lubenskiy and Gutman offe red Tishel part of the company and ex p l ai n ed that they would run the company and Tishel would

rec eive a salary ; (3) ex cept for t he name chang e from Eg ra to UPT, the bus iness rema ined the same, with the same vehicles, th e s ame drivers, the same employ ees and office rs perf orming the same duties in the same off ice space ; a

nd (4) Gutman continued to ma nag e the business and to talk with the public aid office as a repr esentative of UPT and Lubenskiy continued to perf

orm the bookkeeping for UPT. We find that the evidenc e supports the trial court’s conclusion that Gutman and Lubenskiy acte d as the de facto office rs of UPT, eff ectively controlling its operations, just as they serve d as the office rs and owner s of Eg ra. See Richardson
, 234 I ll. 2d at 251 (citing Slater
, 228 I ll. 2d at 149, and In re Christ opher K.
, 217 I ll. 2d at 373). ¶ 38 Next, we must deter mine whe t h er t h e ev i dence supports the finding that Gutman and Lubenskiy wer e acting withi n t h e s cope of their employ ment for UPT when Gutman committed the offe nses of vendor fra ud, theft and money launder ing, an d Lub enskiy committed the offe nse of vendor fra ud. 720 I L CS 5/5-4(a) (2) (West 2000). An employ ee acts

-7-within the scope o f h i s or her employ ment when he (1) perf

orms acts of the kind his employ er hired him to perf orm, (2) intending, at least in part, to serve the employ er, (3) while working within “ ‘authorized time and space limit s.’ ” Restatement (Second) of Ag ency § 2 28(1)(b) (1958), quoted i n Bagent v. Blessing Care Corp.
, 224 I ll. 2d 154, 16 4 (2 0 0 7 ). The evidenc e prese nted at trial established that: (1) Gutman and L ubenskiy formed UPT for the purpose of falsely billing the State of I llinois and obtaining excessive pay ments for UPT’s servic es; (2) that Gutman manag ed the business a nd spoke for

UPT with the public aid office and the rec ipients; (3) that Lubenskiy kept UPT’s books and submitt ed bills to the State of I llinois in the name of UPT; a nd (4) that Gutman and Lubenskiy submitt ed bills to the State of I lli n o i s o n behalf of UPT for $6 milli on and UPT rec eived $3 milli on, which exceede d the amount the State should have paid UPT for its service s. The actions of Gutman and Lubenskiy acc orded with the kinds of acts UPT meant for them to perf orm, and their acts

serve d the purpose for which they cre ated UPT. There fore
, we hold that the State prese nted sufficie nt evidence to establish that Gutman and L ubenskiy acte d within the scope of their employ ment for UPT from J anuar y 16, 2001, until Fe b ru ar y 2002, when they committed vendor f raud, the ft and money

launder ing. 720 I L CS 5/ 5-4(a )(2) (West 2000). ¶ 39 Next, we m u s t d et erm ine whether the evidenc e supports the finding that Gutman and Lubenskiy also ac t ed o n behalf of UPT when Gutman committed the offe nses of vendor fra ud, theft and money launder ing and Lubenskiy comm itted the offe nse of vendor fra ud. 720 I L CS 5/5-4(a) (2) (West 2000). The evidenc e prese nted at trial established that Gutman and Lubenskiy billed the State of I llinois in UPT’s name for approximately $6 milli on and UPT

rec eived $3 milli on, due to the acts of Gutman and Lubenskiy betwee n J anuar y 16, 2001, and Fe bruar y 2002. There fore
, Gutman and Lubenskiy also acte d in behalf of UPT, further ing its business interests, when they committed vendor fra ud, theft and money laundering. S ee Milton v. Illinois Bell Telephone Co.
, 101 I ll. App. 3d 75, 79-80 (1981). Thus, under section 5-4 of the Criminal Code, the State proved that UPT committed the offe nses of vendor fra ud, theft, and mone y

laundering. 720 I L CS 5/ 5-4(a )(2) (West 2000). ¶ 40 In conclusion, beca use we have found that Gutman and L ubenskiy wer e high ma

nag eria l
ag ents of UPT, acting within the scope of their employ ment, and acting on b eh al f of the
corpor ati on when Gutman committed the offe nses of vendor fra ud, theft and money launder ing and Lubenskiy committed the offe nse of vendor fra ud, we hold that the trial court did not err when it found UPT gu i l t y of the offe nses of vendor fra ud, theft and money launder ing, the same offe nses committed by its hig h ma n a g eria l ag ents. 720 I L CS 5/5-4(a) (2) (West 2000); see a lso Bohne , 312 I ll. App. 3d at 708.

¶ 41 L eg ally Inconsistent Ver dicts ¶ 42 UPT argues that the trial court enter ed leg ally inconsistent ve rdicts when it f ound UPT
guilty of vendor fra

ud and theft but acquitted Tishel of the same offe nses. We disag ree

. UPT bases its arg

ument on the assumption that only Tishel serve d as a high manag eria l a g ent of UPT, beca

use UPT listed Tishel as its sole owner

. Howeve r, the evidenc e supports the trial court’s f inding that UPT a lso acted through its de facto office rs, Gutman and L ubenskiy

.

-8-¶ 43 UPT cites People v. O’Neil
, 194 I ll. App. 3d 79 (1990), in support of its po s i t i o n

. I n

O’Neil
, the court found all of the three i n d i v i du al defe ndants guilty of the murder of a

cowor ker, and the court found two corpor ate defe ndants guilty of the in v o l u n tary manslaughter of t h e s ame cowor ker. O’Neil
, 194 I ll. App. 3d at 80-81. On appea l, the defe ndants arg

ued that the j udg ments for murder and involuntary man s l au gh ter conflicted beca use the offe nse of murder require s a knowing and intentional act while rec kless conduct does not. O’Neil
, 194 I ll. App. 3d at 84. The defe ndants further argued that both convictions

arose from the same acts of the individual defe ndants. O’Neil
, 194 I ll. App. 3d at 8 4

. The O’Neil court held that the judgme nts rende red for the offe nses wer e leg ally i n co n s i s tent beca use the court used the same conduct to support both finding s of guilt, but t he off enses had mutually

exclusive mental states. O’Neil , 194 I ll. App. 3d at 96. ¶ 44 Her e, the court convicted UP T and i t s h igh manag eria l ag ents of t he same offe nses. In this case , unlike O’Neil
, the trial court attributed the same mental state to the corpor ation and its office rs. O’Neil does not require reve rsal here

. There fore
, we hold that the trial court did
not enter leg ally inconsistent verdic ts when it acquitted Tishel and convicted UPT of vendor fra ud, theft and money launder ing based on the actions of UPT’s high manag eria l agen t s , Gutman and L

ubenskiy

.

¶ 45 Financ ial Records A dmitted Under the B usiness Records Exception ¶ 46 Next, UPT contends that the trial court err ed in admitting finan ci al rec ords under the business rec ords exception beca use the prosec ution laid an insufficient foundation for their admission and the State destroyed the bulk of the rele vant under lying r ecor ds. ¶ 47 Section 115-5(a ) of the C ode of Criminal Procedur e of 1963, comm only ref err ed to as the business rec ords exception to the hear say rule, provides that “[a]ny writing or rec ord *** made as a memorandum or rec ord of any act, transac tion, occur renc e, or ev en t , shall be admissible as evidenc e of such act, transac tion, occur renc e, or event, if made in regular

course of any business, and if it was the regular co u rs e o f s u ch business to make such

mem o randum or record at the t ime of such act, transaction, occurre nce, or event or within

a rea sonable time there afte r.” 725 I L CS 5/115-5(a) (West 2006). Section 115-5(c )(2) of the Code of C riminal Procedur e of 1 9 63 further provides that “[n] o writing or record made i n the regular course of any business shall become admissible as ev i dence *** if *** [s] uch writing or rec ord has been made by anyone during an investigation of an alleg ed offe nse or during any investigation rela ting to pending or anticipated litigation of any kind.” 725 I L CS 5/115-5(c) (2) (West 2006); see also People v. McClanahan
, 191 I ll. 2d 127, 133 (2000). The trial court may admit into evidenc e summaries of voluminous documents wher e the underlying data upon which the proponent bases the summary satisfies the ordinary business exception, and the trier of fac t cannot convenie ntly examine the contents of the voluminous writing s in court. People v . W iesneske , 234 I ll. App. 3d 29, 41 (1992). ¶ 48 The par t y s ee k i n g t o ad m i t a purported business rec ord into evidenc e must lay an adequate foundation for the business rec ord, including “a showing that the rec ord was made

as a memorandum or rec ord of the act; the rec ord was made in the regular course of business;

-9-and that it was the reg ular course of the business to make such a rec ord at the time of the act

or within a rea sonable time there afte r.” People v. Morrow
, 256 I ll. App. 3d 392, 397 (1993) (citing People v. Tsombanidis
, 235 I ll. App. 3d 823, 835 (1992))

. “In the case of computerg ener ated rec ords, a proper foundation additionally require s a showing that: st an d ard equipment was used; the particula r computer g ener ates acc urate rec o rd s when used
appropr iately ; the computer was used appropr iately ; and the source s of the information, the method o f re co rd ing utiliz ed, and the time of prepa ration indicate that the rec ord is trustworthy and should be admitted into evidenc e.” Morrow
, 256 I ll. App. 3d at 397 (citing Riley v. Jones Brothers Construction Co.
, 198 I ll. App. 3d 822, 829 (1990), and Michae l H. Gra ham, Cleary & Gra

ham’s Handbook of I llinois Evidenc e § 8 03.10, at 654-55 (5th ed. 1990)). Opposing counsel may object if the evidenc e prese nted fails to support introduction of the evidenc e being offe red or lacks a sufficie nt foun d at i o n

. See Michae l H. Gra ham, C l ear y & Gra ham’s Handbook of I llinois Evidence § 611.18, at 546 (7th ed. 1999). “L ike other evidentiar

y ruling s, th e d e te rmination of whether or not business rec ords are admissible is within the sound discretion of the trial judge
, and such deter minations will not be reve rsed absent an abuse of discretion.” Morrow
, 256 I ll. App. 3d at 396 (citing Tsombanidis
, 235 I ll. App. 3d at 833, and People v . Boclair , 129 I ll. 2d 458, 476-77 (1989)). ¶ 49 In support of its c laim that it prese rved this issue for revie w, UPT ref ers to the pag es in the rec ord wher e it g ener ally objected to the admission of unspecifie d exhibi ts in the rec ord. But apar t from that ref

ere nce, UPT (1) fails to cite to the pag es in the rec ord wher e the State introduced the exhibi ts UPT now seeks to challeng e; (2) fails t o cit e to the pag es in the

rec ord wher e witnesses identified and discussed the exhibi ts; (3) fails to cite to the pag es in the rec ord wher e witnesses allege d l y t es t ified that they prepa red the exhibi ts solely for litigation purposes; and (4) fails to cite to the pag es in t h e rec ord wher e UPT alleg edly objected to the admission of the exhibi ts on the basis of an improper foundation. Be cause UPT failed to cite to the pag es in the rec ord wher e the witnesses discussed the exhibi ts and wher e UPT made its objections, this court cannot deter mine whether the State laid a proper foundation for the exhibi ts. We cannot determ i n e: (1 ) whether the exhibi ts qualify as b u siness rec ords, made as memoranda or rec ords of transac tions; (2) whether the ex h i b i t s qualify as business rec ords made in the reg ular course of business; and (3) whethe r t he exhibi ts qualify as business rec ords cre ated in the regular course of the business at the time of the acts rec orded or within a rea sonable time the rea fter. See Morrow
, 256 I ll. App. 3d at 397 (citing Tsombanidis
, 235 I ll. App. 3d at 835). Simi larly
, beca use UP T failed to cite to the pag es in the rec ord wher e the witnesses discussed the exhibi ts, this court cannot deter mine whether the State laid proper foundations for the com puter rec ords. We cannot deter mine: (1) whether the Depa rtment used standard computer equipment; (2) whether the computer g ener ated acc urate records when used appropr iately ; and (3) whether the Depa rtment used the computer appropr iately

. There fore
, we cannot tel l wh et h er the trial
court should have found the rec ords trustworthy and admissible. See Morrow
, 256 I ll. App. 3d at 397 (c iting Riley , 198 I ll. App. 3d at 829). ¶ 50 S up re m e C o u rt Rule 341(h)( 7) provides that the appellant’ s brief shall incl u d e an argument containing the appellant’s contentions, the rea sons there for, citation of the

-10-authorities, and the pag es of the rec ord on which the appellant relies. I ll. S. Ct. R. 341(h)( 7)

(ef f. J uly 1, 2008). S up re m e Court Rule 341(h)( 7) further provides that parties waive any points not a

rgued. I ll. S. Ct. R. 341(h)( 7) (ef f. J uly 1, 2008). We find that, by failing to cite
to the pag es in the rec ord relied upon in support of the contentions in its brief as require d by Rule 341(h)( 7), UPT forf

eited its argument that the trial court err ed when it admitted various exhibi ts pursuant to the business rec ords exception. I ll. S. Ct. R. 341(h)( 6), (h)( 7) (ef f. J uly 1, 2008). “A revie wing court is entitled to have issues clea rly define d with pertinent authority cited and cohesive arguments prese nted [citation]
, and i t i s n o t a repository into which an appellant may foist the burden of argument and rese arc h [citation] ; it is neither the function

nor the obligation of this court to act as an advocate or sear ch the rec ord for err or [citation] .” Obert v. Saville
, 253 I ll. App. 3d 677, 682 (1993). Also, we must presume that the trial court judge would not have a dmitted the exhi bits if the State had not laid proper foundations for them, beca

use “[w]e ordinarily presume that the trial judge knows and follows the law unless the rec ord indicates otherwise.” People v. Gaultn ey , 1 7 4 I ll. 2d 410, 420 (1996) (citing People v. Terrell
, 132 I ll. 2d 178, 219 (1989))

. Acc ording ly
, we hold that UPT has not shown
t h at the trial court abused its discretion when it admitted the exhibi ts that the defe ndan t complains about in this appeal.

¶ 51 Restituti on ¶ 52 Fi n al l y , UP T contends that the trial court err ed in order ing it to pay $2,966,187.38 i n restitution. Specifica lly
, UPT contends that the trial court err ed when it failed to require the State to prove the actua l amount of loss and fa iled to reduc e the restitution by the value of the leg itimate service s UPT provided. We revie w the trial court’s restitution order for abuse of discre tion. People v . Stites , 344 I ll. App. 3d 1123 (2003). ¶ 53 Section 5-5-6 of the Unified Code of

Correc tions provides:
“I f the co u rt d et ermines that an order direc ting the offe nder to make restitution is
appropr iate, the offe nder may be sentenc ed to make restitution. *** I f the offe nder is
sentenc ed to make restitution the Court shall deter mine the restitution as here inafter set forth: (a) At the sentenc e hear ing, the court shall deter mine *** whether the defe ndant should be require d to make restitution in cash, for out-of-poc ket expenses, damag es, losses
, o r injuries found to have been proxi mately cause d by the conduct of the defe ndant ***. (b) In fi x i n g the amount of restitution to be paid in cash, the court shall allow

cre dit f or proper ty returne d in kind, for proper ty damag es order ed to be repa ired by the defe ndant, and for proper ty order ed t o b e re s t ored by the defe ndant; and afte r g rantingthe cr edit, the court shall assess the actua l out-of-poc ket ex penses, losses, damag es, and injuries suffe red b y t he victim named in the char g e and any other victims who may also have suffe red out-of-poc ket expenses, losses
, d am age s, and injuries proxi mately cause d by the same criminal conduct of the defe ndant ***.” 730 I L CS 5/ 5-5-6 ( West 2000).

-11-¶ 54 The State candidly admits that it has found no case in which t h e co u rt i n t erprete d this

section of the Code in a simil ar context. UPT compar es this case to People v. Jones
, 145 I ll. App. 3d 835 (1986), in which the trial court order ed t h e d ef en dant to pay restitution for criminal damag e to a car , without considering the scra p v al u e o f t h e car the defe ndant damag ed. The appellate court reve rsed for the trial court to reduc e the amount of restitution by the value of the scra

p. We agree with the Stat e t hat the fac t that UPT, as a front for Gutman and Lubenskiy
, could not leg ally rec eive any compensati o n from the State for medical transport service s makes this case distinguishable from Jones

. L ike the parties, we found no usef

ul leg islative history

for se ction 5-5-6. ¶ 55 We seek guidance from case s from other jurisdictions, and espec ially from fede ral c ases interpre ting the Mandatory Victims Restituti on Act of 1996 (18 U.S.C. § 3663(a) ( 2006)). In United States v. Maurello
, 76 F.3d 1304 (3d C i r. 1996), the defe ndant provided leg al service s to severa l persons despite his la ck of an attorney ’s license . The c ourt held that the defe ndant did not need to pay restitution of the leg al fee s he rec eived from persons he serve d satisfac torily

. Maurello
, 76 F.3d at 1311-12. Other courts followed Maurello and formulated the g ener al rule that courts order ing restitution from one who f raudule ntly offe rs profe ssional service s should allow a cre dit ag ainst the restitution for the value of th e s ervices the unlicensed person perf

ormed. See Van Zanen v. Qwest W ireless, L.L

. C.
, 522 F.3d 1127, 1131 (10th Cir. 2008). ¶ 56 The United States C o u rt o f Ap p ea l s fo r t h e S ev enth Circuit applied the principle espoused in Maurello to United States v. Vivit
, 214 F.3d 908 (7th Cir. 2000), a case in which

a medical service provider fr au dulently overbilled the g overnme nt for service s. The Vivit court he ld:
“ ‘[I ]n calc ulating loss, the dist ri ct co urt should g ive cre dit for any leg itimate service s rende red to the victims.’ [ United States v. Sayakhom
, 186 F.3d 928, 946 (9th Cir. 1999)].
*** [I ]n fra

uds wher e the item misrepre sented has some value, the value of this item should be netted ag ainst the price offe red to deter mine the amount of loss. Whil e we have traditionally applied this netting theory i n the fra udulent sale of g oods, [citation]
, we have also applied this theory to the fra udulent misrepre sentation of other items of value, when some value has actua lly been t ra nsfer red. [C itation.] Despite the g overnme nt’s contention that the overwhelming majority of Vivit’s billing was based on unperf ormed

or unnece ssary servi ce s , the evidenc e prese nted demonstrates that Vivit did perf orm

some leg itimate medical service s. For t h i s re as o n , we calc ulate the amount of loss suffe red by the insurers by netting the total costs submitt ed by Vivit, minus the leg itimate medical se rvice s that he provided.” Vivit , 214 F.3d at 915. ¶ 57 The amount of har m re s u l t i ng from a defe ndant’s fra ud aff ects both the length of the defe ndant’s sentenc e and the amount of restitution order ed. In re s p o n s e to Maurello
, the United States SentencingCommi ssion added a note to the sentenc ing guidelines to state:
“In a case invol ving a scheme i n which *** service s wer e fraudulently rende red to the victim by persons falsely po s i n g as licensed profe ssionals *** loss shall include the
amount paid for the proper ty , service s or g oods transfe rre d, rende red, or misrepre sented,

-12-with no cre dit provided for the value of those items or service s. ” Uni ted States SentencingGuidelines Manua l § 2B1.1, Commentary , Application Note 3( F) (v) (Nov. 1, 2011). Section 2B1.1 applies only to the calc ulation of loss for purposes of deter mining the leng th

o f a defe ndant’s sentenc e. The Sentencing Commi ssion added no simil ar comm en t t o t h e guidelines on restitution. United States Sentencing Guideli nes Manual § 5E1.1 (Nov. 1, 2001); see United St ates v. All en , 529 F.3d 390, 396 ( 7th Cir. 2008). Since the Sentenc ing Commi ssion added the note about loss calc ulation for sentenc ing purposes, most fede ral
courts have co n t i n u ed to offse t the value of any service s perf ormed ag ainst the pay

ments illega lly rec eived for purposes of calc ulating restitution. See Allen
, 5 2 9 F.3d at 396-97; United States v. Bryant
, 655 F.3d 232, 254 (3d Cir. 2011) ; but see United States v. Hunter
, 618 F.3d 1062, 1064- 66 (9th Cir. 2010)

. Finally
, we note the court held in United States v. Dokich
, 614 F.3d 314, 320 (7th Cir. 2010), “in the context of restitution awa rds, the
g overnme nt’s evidenc e of actua l loss must de duct any financ ial benef it rea liz ed by victims of the fr aud.” ¶ 58 W e fo u n d o n l y o n e fe dera l case since the chang e in the sentenc ing guidelines t h at disallowed an offse t a g ainst the loss f or ser vices pe rfor

med. In Hunter , Northstar B orough hired Hunter to work as a nurse afte r she mailed to Northstar false documents ref lecting fictitious nursing cre dentials. The trial court order ed her to pay in restitution all of the wag es Northstar and the Depa

rtment of L abor paid her, without any deduction for the service s Hunter a ctually

perf ormed. The Ninth Circuit affirme d, holding:
“B oth Northstar Bor oug h and the Depa rtment of L abor wer e dir ec tly and proxi mately harme d by Hunter’ s mail fra ud beca use they paid for the service s of a licensed nurse that

wer e neve r re ceive d. ***
*** Northstar and the Depa rtment of L abor paid for nursing service s that Hunter was not qualified to perf

orm, and s o d i d not g et what they paid for.” Hunter
, 618 F.3d at 1064-65. ¶ 59 Her e, the State paid UP T for transporting public aid recip i ents in need of assistance to their medical service provid ers. The testimony of the State’s witnesses shows that UPT provided the nece ssary service s the State soug ht for a number of persons in need of medical service s. L

ubenskiy
, Tishel and Denisenkio all testified that Tishel ran UPT as a leg itimate b u s i n es s , providing transportation service s to public aid rec ipients. In acc ord with Allen
, Dokich
, and Vivit
, we find that in calc ulating the amount of restitution, the trial court should have a llowed UPT a c redit for the leg itimate service s it provided to the State. ¶ 60 For the burden of pro o f, we ad o p t t h e re as o n i n g o f t he court in United States v. Sheinbaum , 136 F.3d 443, 448 ( 5th Cir. 1998), where the cour t said:
“L og ically
, the burden of proving an offse t should lie with the defe ndant. The statute allocate s the various burdens of proof among the parties who are best able to satisfy those burdens and who have the s trong est incentive to litigate t he particular issues involved. *** [T] he defe ndant should know the value of any compensation he has alre ady provided
to the victim in civil proce eding s, so the burden should fall on him to ar gu e for a

-13-reduc tion in his restitution order by that amount.”
See also United States v. Elson
, 577 F.3d 713, 734 (6th Cir. 2009); Bryant
, 655 F.3d at 254. We sug g est that United States v. Austin
, 54 F.3d 394, 402 (7th Cir. 1995), which permits the

u s e o f sampling to estimate the total loss a defe ndant cause d, may provide some u s ef u l
guidance for de terminingthe prope r amount of r estitution.

¶ 61 CONCLUSI ON ¶ 62 The State proved that UPT’s de facto office rs, Lubenskiy and Gut ma n , c o mm itted vendor fra ud, theft and money launder ing in the course of their work on behalf of UPT, and there fore the evidenc e supports the convictions of UPT for those three crimes. The convictions of UPT on the basis of the a cts of its de facto office rs does not c onflict with the acquittal of UPT’s nominal owner for the same char g es. UPT failed to show that the t ri al co u rt abused its discretion when it admitted cer tain exhibi ts into evidenc e as business rec ords. The trial court should have considere d the value of the service s UPT rende red when it order ed UPT to pay restitution. Acc ording ly
, we aff irm the convictions, reve rse the restitution order and rema nd for f urther pr ocee dings to e stablish an appropriate amount of r estitution.

¶ 63 Affir

med in part a

nd reve rsed in par

t; cause r emande d.

-14-