In the

United States Court of Appeals

For the Seventh Circuit

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Nos. 04-4232, 05-1539 

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

DANIEL E. DANFORD,

 Defendant-Appellant.

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Appeals from the United States District Court

for the Western District of Wisconsin

No. 04-CR-28—Barbara B. Crabb, Chief Judge.

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ARGUED SEPTEMBER 13, 2005—DECIDED DECEMBER 20, 2005

AMENDED JANUARY 18, 2006

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Before BAUER, MANION, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Defendant-Appellant Daniel E.

Danford appeals his convictions on three counts of mail

fraud under 18 U.S.C. § 1341 and two counts of interstate

transportation of a security taken by fraud under 18 U.S.C.

§ 2314. Danford argues that the district court abused its

discretion in four ways: (1) by denying his motion for

mistrial; (2) in admitting evidence under the FRE 803

exception to the hearsay rule; (3) by responding to jurors’

questions during their deliberations; and (4) in calculating
2 Nos. 04-4232, 05-1539

restitution. Further, Danford contends that his sentence

was unreasonable. We affirm the decision of the district

court and find that Danford’s sentence was reasonable. 

 Background

Danford was the owner of Danford Jewelers, a jewelry

store in Madison, Wisconsin. On June 18, 1998, police

responded to an alarm at the store, where Danford reported

that he had been robbed at gunpoint. Danford told the

police that the robber had taken almost all of the store’s

inventory. 

Danford said that early the morning of June 18, 1998, he

went to his office alone. Danford’s office was located in the

same building as Danford Jewelers, but the office was on

the second-floor and was not connected to the store. He said

that a robber came into his second-floor office and forced

him at gunpoint to go downstairs and unlock the store.

Danford said that the robber forced him to disarm the

alarm system, open the safe, and empty the jewelry from

the safe into a bag. 

Normally, Danford did not open the store nor deactivate

the alarm. A few weeks prior to the reported robbery,

Danford had asked the store manager to refresh him on

how to disarm the alarm because he had lost his password.

 After reporting the robbery, Danford filed an insurance

claim. The store employees compiled a list of all the stolen

items. The final list of stolen items was signed under oath

by Danford in front of his attorney, notarized, and then

mailed to the insurance company to support his claim. 

For reasons not pertinent to this appeal, the insurance

company did not pay Danford’s claim immediately. After

some litigation, in March of 1999 the insurance company

finally paid Danford for the entire claim amount, totaling

$1,235,464.
Nos. 04-4232, 05-1539 3

Starting about eight months after the claim was paid,

during the busy holiday shopping season in November of

1999, Danford began slipping into the store’s inventory

items that had been reported stolen. When Danford reintroduced these items he did not follow the store’s typical

inventory procedures. Instead, Danford brought the jewelry

back to the store in batches and directed his bookkeeper to

put them in inventory. Unlike the standard procedures for

new inventory at the store, these batches of jewelry had no

accompanying invoices. Moreover, the re-introduced items

did not have their original inventory tags. Thus, nothing on

the jewelry pieces indicated that they had ever been in the

store before.

From time to time, as a shareholder of Danford Jewelers,

Danford had borrowed money from the company. With the

re-introduced batches, Danford gave his bookkeeper a

handwritten list (rather than the typical invoice), with

dollar amounts listed that Danford had assigned to the

pieces himself. Explaining that the items came either from

him personally or from a partnership that Danford and his

father-in-law had established to buy jewelry at estate sales,

he directed the bookkeeper to “trade” the value of the

jewelry against the shareholder debt that he owed to the

company.

Each time Danford re-introduced a batch of jewelry with

the handwritten sheet, the bookkeeper would put the item

back into inventory, give it a new number, and then offset

the value of each item against the debt that Danford owed

to the business. In total, Danford introduced more than

$170,000 of the stolen jewelry back into the store and

directed his bookkeeper to credit the outstanding debt on

his account with the “new” pieces.

During the holiday season of 1999 employees began

recognizing that some items previously reported stolen were

re-appearing in the store. Some employees started to talk
4 Nos. 04-4232, 05-1539

about these suspicions. Finally, Danford heard about the

rumors and called an employee into his office to confront

her about the accusations. She explained to an angry

Danford that she was not accusing him of robbing the store

but rather she was confused as to where the jewelry that

had been reported stolen was coming from. Danford lied to

his employee and explained that he had bought the jewelry

items from the store himself so that the books would look

good for the bank.

Danford strung together several other lies to cover-up his

scheme. He even went so far as to threaten a goldsmith who

was leaving the company, warning him not to say anything

about what went on in the store. Eventually, in the spring

of 2000, Danford went an extra step and began melting

down some jewelry in the store’s goldsmith shop after work

hours. 

In June of 2000, agents executed federal search warrants

at both Danford Jewelers and Danford’s house. They found

several items of jewelry in both locations and found the

inventory records at the store. Not remarkably, the items

recovered at Danford’s home and his store matched the

items described on Danford’s list of stolen items. Further,

at trial, several vendors testified that some of the recovered

jewelry carried unique serial numbers or were one-of-a-kind

items, making identification of these items as pre-robbery

pieces easy.

Danford first argues that the district court abused its

discretion by denying his motion for a mistrial. He contends

that prejudicial evidence was published to the jury and that

the district court failed to determine fully what jurors were

exposed to that evidence. Further, Danford asserts the

district court failed to give a proper curative instruction to

the jury regarding the prejudicial information.

We review a district court’s denial of a motion for mistrial

under an abuse of discretion standard. United States v.
Nos. 04-4232, 05-1539 5

Smith, 308 F.3d 726, 739 (7th Cir. 2002). Our review is

highly deferential because the trial judge “is in the best

position to determine the seriousness of the incident in

question, particularly as it relates to what has transpired

in the course of the trial.” United States v. Clarke, 227 F.3d

874, 881 (7th Cir. 2000). We will reverse a district court’s

denial of a mistrial only if “we have a strong conviction that

the district court erred.” Id. The ultimate inquiry “is

whether the defendant was deprived of a fair trial.” Id.

After the prosecutor inadvertently published to the jury

a letter containing the prejudicial (but irrelevant) information, defense counsel moved for a mistrial, contending

that the mistake prejudiced the entire jury. The district

court judge surveyed the jury in an attempt to resolve the

problem. The letter was re-published in redacted form and

the judge inquired as to whether any of the jurors had read

the letter in its entirety. One juror responded that she had

read the entire letter; the judge admonished her not to

discuss that information with any of the jurors and to

disregard its content completely. Further, the judge offered

to strike the juror in question and replace her with an

alternate juror but Danford declined.

This Court has noted before “that jurors are presumed to

follow limiting and curative instructions unless the matter

improperly before them is so powerfully incriminating that

they cannot reasonably be expected to put it out of their

minds.” Smith, 308 F.3d at 739 (citing Richardson v. Marsh,

481 U.S. 200, 207-08 (1987)). In this case, we assume no

different. The irrelevant information was before the jury for

a relatively short period of time (about one minute) and was

published during testimony of the prosecution’s witness.

Additionally, the judge gave a curative and limiting instruction to the jury and even offered to remove the juror who

had read the irrelevant information. From this vantage

point we see no abuse of discretion on the district court’s

part when it denied Danford’s motion for mistrial. 
6 Nos. 04-4232, 05-1539

Danford contends that the district court erred when it

admitted hearsay evidence at his trial that was testimonial

in nature and violated his Sixth Amendment right to

confront a witness under the Supreme Court’s holding in

Crawford v. Washington, 541 U.S. 36 (2004). We review de

novo district court rulings that affect a defendant’s Sixth

Amendment right to confront a witness. United States v.

Castelan, 219 F.3d 690, 694 (7th Cir. 2000).

At trial, Stephanie Kurka, a former Danford Jewelers

employee, testified that approximately two weeks before the

robbery occurred she witnessed the Danford Jewelers store

manager with Danford talking in front of the store’s alarm

system. Immediately following that conversation (less than

60 seconds later), Kurka asked the manager what had

happened. The manager explained that she was demonstrating to Danford how to disarm the alarm because

Danford had lost his password.

While the Court in Crawford declined to “spell out a

comprehensive definition of ‘testimonial,’” it did offer

clarifying examples of what testimonial hearsay covers.

Crawford, 541 U.S. at 68. Testimonial hearsay includes

prior testimony from a preliminary hearing or testimony in

response to police interrogations. Id. When nontestimonial

hearsay is offered, however, the Court maintains that a

judicial determination of reliability is sufficient. Id. See also

Ohio v. Roberts, 448 U.S. 56 (1980). The Court further noted

that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who

makes a casual remark to an acquaintance does not.”

Crawford, 541 U.S. at 51. 

In this case, the conversation between Ms. Kurka and the

store manager is more akin to a casual remark than it is to

testimony in the Crawford-sense. Id. Accordingly, we hold

that the district court did not err in admitting this testi-
Nos. 04-4232, 05-1539 7

mony under FED. R. EVID. 803(1), the present-sense impression exception to the hearsay rule.

Danford next argues that the district court abused its

discretion when it answered questions posed by the jury

during deliberations. The jury sent two questions to the

judge seeking clarification of the initial instructions.

Danford contends that the district court’s answers were

inconsistent, and thus served to confuse the jury. He

objected to the district court’s answer to the jury’s first

question; the second answer, however, Danford approved.

The Court reviews a district court’s response to jury

questions for abuse of discretion. United States v. Young,

316 F.3d 649, 661 (7th Cir. 2000). His “right to object to jury

instructions on appeal is waived if the record illustrates

that the defendant approved of the instructions at issue.”

United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996).

Therefore, Danford waived his right to appeal the second

answer.

When reviewing supplemental instructions given by a

district court to the jury, this Court examines three factors:

(1) whether the instructions as a whole fairly and adequately treat the issues; (2) whether the supplemental

instruction is a correct statement of the law; and (3)

whether the district court answered the jury’s questions

specifically. United States v. Sims, 329 F.3d 937, 943 (7th

Cir. 2003); Young, 316 F.3d at 662. 

The jury specifically sought clarification of whether

Danford’s scheme had to begin on the date charged in the

indictment. In response, the judge issued two instructions

telling the jury that the scheme did not have to begin on the

date alleged in the indictment. But, the judge explained,

before convicting Danford on any specific count, the jury

must find that a scheme was in existence at the time of the

mailing at issue. This is a correct statement of law. Further,

since the jury did not read the answers in a vacuum, when
8 Nos. 04-4232, 05-1539

the supplemental instructions are read together with the

original instructions, it is clear that the court did not abuse

its discretion in its answers to the jury.

Danford next argues that his case should be remanded for

resentencing in light of United States v. Booker, 125 S. Ct.

738 (2005). He contends that his sentence was unreasonable. Under Booker, this Court reviews a defendant’s

sentence for reasonableness. Id. at 765-66.

The district court, however, understood the potential

problems posed by the Supreme Court’s pending Booker

decision. The district judge proceeded by viewing the

Sentencing Guidelines as suggestive rather than mandatory. After determining proper restitution and finding of

loss, the district judge sentenced Danford to a 60-month

sentence. If the court had followed the Guidelines, it would

have sentenced Danford to the statutory range of 70 to 87

months. Danford does not argue that there was any basis

for a downward departure.

Booker did not precisely define “reasonableness,” but it

did state that the factors listed in 18 U.S.C. § 3553(a)

should guide appellate courts in ascertaining if a sentence

is unreasonable. As this Court has held, “Judges need not

rehearse on the record all of the considerations that 18

U.S.C. § 3553(a) lists; it is enough to calculate the range

accurately and explain why (if the sentence lies outside it)

this defendant deserves more or less.” United States v.

George, 403 F.3d 470, 472-73 (7th Cir. 2005). 

Here, the district judge found several important factors

that led to the sentence she imposed: the substantial loss to

the insurance company, Danford’s attempts to obstruct

justice (which included at least one threat to a witness and

false trial testimony), Danford’s staging of the robbery, his

highly sophisticated and carefully planned course of conduct

in planning the scheme, and his prior criminal conduct.

Because of the judge’s thorough record at sentencing, we
Nos. 04-4232, 05-1539 9

feel a Paladino remand is unnecessary. United States v.

Paladino, 401 F.3d 471, 482-83 (7th Cir. 2005). When these

factors are combined with the district judge’s use of the

guidelines as suggestive rather than mandatory, we find

that Danford’s sentence is reasonable. 

Lastly, Danford challenges the district court’s calculation

of restitution. According to Danford, the restitution amount

should have been between $120,000 and $200,000 based on

the jury’s post-verdict finding. Instead, the district court

awarded restitution equal to the insurer’s loss, which was

$1,235,464. This Court reviews the district court’s calculation of restitution for abuse of discretion. United States v.

Swanson, 394 F.3d 520, 526 (7th Cir. 2005). 

Danford’s argument is wrong. As this Court has noted,

restitution “is not a criminal punishment but a civil remedy

administered for convenience by courts that have entered

criminal convictions.” United States v. George, 403 F.3d 470,

473 (7th Cir. 2005). Restitution is determined by the judge

using the lower preponderance of the evidence standard.

See Swanson, 394 F.3d at 526; 18 U.S.C. § 3664(e). As a

result, the jury’s post-verdict findings were not binding on

the district court. A civil remedy included with a criminal

judgment does not make it a “penalty of a crime” that must

be established by a jury beyond a reasonable doubt. United

States v. Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000). 

In this case, Danford was convicted of mail fraud based on

a scheme to defraud. The district court, using a preponderance of the evidence standard, found that Danford staged

the robbery as part of an elaborate scheme to defraud his

insurance company. The district court determined that

Danford ultimately fleeced the insurance company of

$1,235,464. Given these findings, we do not believe the

judge abused her discretion in setting the restitution

amount. 
10 Nos. 04-4232, 05-1539

Conclusion

For the reasons stated above, we AFFIRM Danford’s

conviction and sentence.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-18-06