United States v. Earl Miller

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 27, 2025
• Docket: 23-3324
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-3324 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

EARL MILLER, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:20CR00048-1 — Jon E. DeGuilio, Judge. ____________________

ARGUED SEPTEMBER 17, 2024 — DECIDED AUGUST 27, 2025 ____________________

Before EASTERBROOK, HAMILTON, and MALDONADO, Cir- cuit Judges. MALDONADO, Circuit Judge. A federal jury convicted Earl Miller, owner of several real-estate investment companies, of wire fraud and securities fraud for stealing millions of dollars from his investors. The district court sentenced Miller to a be- low-guidelines term of 97 months’ imprisonment. As part of its guidelines calculation, the district court determined that the intended loss caused by Miller’s fraud was approximately 2 No. 23-3324

$4.5 million. That loss amount led to an 18-level sentencing enhancement. The district court further ordered that Miller pay restitution of $2.3 million to the victims of his scheme. Miller now appeals his sentence. He argues that the dis- trict court committed reversible error in its loss-enhancement and restitution calculations and asks that we vacate the judg- ment and remand for resentencing. We find no such errors and therefore affirm Miller’s sentence. I. Background A. Factual Background of Offenses In 2009, Miller was hired by a childhood friend, Matthew Gingerich, to raise money for Gingerich’s real estate invest- ment firm, 5 Star Investments. 5 Star raised capital to finance the rehabilitation of properties, mostly in Northern Indiana where the company was based, by issuing promissory notes to investors in exchange for their contributions. These notes promised investors around 10% in returns paid out in monthly installments over 30 months, at which time the in- vestors were promised to be paid their principal investment. By 2011, Miller co-owned 5 Star with Gingerich and was solely responsible for the investor side of the business. In this role, Miller, with the assistance of 5 Star’s legal counsel, pre- pared 5 Star’s Private Placement Memoranda (PPMs), which served as investment contracts. The PPMs generally assured investors that 5 Star planned to use the funds for residential real estate investments and would not allocate them to non- real estate ventures without prior agreement. The PPMs in- cluded various other promises, including that Miller would not be paid a salary, that 5 Star would not advertise invest- ment opportunities through general solicitation, and that No. 23-3324 3

securities would be sold only to “accredited” or “sophisti- cated” investors. In July 2014, Miller bought out Gingerich for $2.5 million and became the sole owner of 5 Star. By that time the business had grown into 15 related LLCs operating under the 5 Star name and expanded to include properties outside of Indiana. As the sole owner, Miller was responsible for both the invest- ment and operations sides of the business. He also became the sole signatory on company checks and the sole decisionmaker regarding the spending of investor funds. Shortly after Miller took over 5 Star, he began diverting investor funds for personal purposes contrary to the terms in the PPMs. Between July 2014 and August 2015, Miller used over $645,000 in investor money to help pay off his debt to Gingerich; he paid over $214,000 to a personal spiritual advi- sor; and he personally pocketed over $914,000 directly out of 5 Star accounts. Also contrary to the PPMs, Miller ran advertising cam- paigns, which he mainly targeted toward the Amish commu- nity in Indiana. Many of the Amish investors that Miller tar- geted had an eighth-grade education and limited or no invest- ing experience. Miller himself was raised in an Amish com- munity. Starting in February 2015, Miller also began to wire inves- tor funds to various “green products” companies that were operated by his friends. Miller did no due diligence on these businesses, nor did he seek investor permission before mak- ing payments. Miller eventually developed and issued a new PPM in March 2015, which stated that 5 Star was expanding its business into green energy products, though, by then, he 4 No. 23-3324

had already transferred hundreds of thousands of dollars. Further, the new PPM included false statements about 5 Star’s plans for those investments. For example, the PPM repre- sented that 5 Star would use investor money to distribute green products for which 5 Star owned the patent. But 5 Star held no such patents and never had plans to distribute any such products. Miller ultimately wired over $1.7 million of in- vestor money to his friends’ companies, and the payments made little to no returns for investors. By July 2015, 5 Star was struggling financially and it had stopped paying out returns to its investors, though Miller continued to solicit and accept new investments anyway. Around this time, Miller again used investor funds without authorization to hire a company, Global Impact, to take over the day-to-day management of 5 Star and turn the company around. Miller also used investor funds to hire a law firm, Cozen O’Connor, to handle legal issues. Soon after Global Im- pact was hired, with investors calling 5 Star’s offices asking for their unpaid interest checks, Miller left town and took his family to Florida. While he was away, Miller continued to make wire transfers between and out of 5 Star accounts. Global Impact continued to run 5 Star until early 2016 when Miller filed for bankruptcy and a trustee assumed control of the 5 Star entities. B. Trial Proceedings In June 2020, a grand jury charged Miller with engaging in a scheme to commit wire fraud from July 2014 through Au- gust 2015 by misappropriating investor money. Counts 1 through 6 of the indictment alleged wire fraud in violation of 18 U.S.C. § 1343 and identified six victims whose investments were misused as part of Miller’s scheme. The grand jury also No. 23-3324 5

charged Miller with securities fraud and making a false state- ment during 5 Star’s bankruptcy proceedings. At trial, in addition to presenting testimony from victims and former 5 Star employees, the government called an FBI forensic accountant, Heather Teagarden, to testify as to 5 Star’s books, investor funds, and expenditures. Teagarden testified that, based on her examination of 5 Star’s records, Miller diverted $4,524,137.57 to himself or outside entities contrary to the terms of the PPMs. This $4.5 million figure in- cluded Miller’s unauthorized payments to Gingerich, his spir- itual advisor, his friends’ green energy entities, Global Im- pact, Cozen O’Connor, and himself. A jury convicted Miller on one count of securities fraud and five counts of wire fraud. It acquitted him on one wire fraud count relating to one victim who did not testify and on the false statement charge in connection with the bankruptcy proceedings. Miller filed a post-trial motion for acquittal, which the district court denied. C. Sentencing Proceedings During the sentencing phase, the district court considered the application of § 2B1.1(b) of the Sentencing Guidelines, which adds escalating enhancements based on the amount of loss caused by the defendant’s fraud. The Probation Depart- ment’s presentence report (PSR) recommended a $30 million loss amount based on the total principal investments 5 Star had taken in and held at the time it went bankrupt. This would have resulted in a 22-level increase to the advisory guideline range. See U.S.S.G. § 2B1.1(b)(1)(L). Miller raised numerous objections to the loss amount in the PSR including, as relevant here, that the government had not shown that he 6 No. 23-3324

had the intent to defraud investors of the entire claimed loss amount. Miller instead argued that the loss amount should have been limited to the losses of the victims specifically charged in the counts of conviction and proven at trial, which he argued amounted to roughly $600,000 for a 14-level en- hancement. See U.S.S.G. § 2B1.1(b)(1)(H). In a written decision, the district court rejected both sides’ proposed loss amounts and came to its own determination. The court calculated the intended loss at $4.5 million, the amount Teagarden testified that Miller had misappropriated. It emphasized that Miller made no attempt during trial to dis- pute Teagarden’s calculation of his misspending, which was supported by 5 Star’s bank records. The district court con- cluded that this figure represented the intended financial harm caused by Miller’s offense, because it reflected the money that Miller fraudulently spent in violation of the terms of the PPMs. This loss amount led to an 18-level sentencing enhancement. See U.S.S.G. § 2B1.1(b)(1)(J). At that time, the district court deferred setting a restitution amount until the government provided more information identifying the particular investors who lost money from Mil- ler’s misspending, and whether they had been reimbursed at all. The government then supplemented the record with this additional evidence and sought restitution in the amount of $2,313,873.28 for forty-five victims. The government prof- fered that Teagarden would testify that she had traced the in- vestments of those forty-five investors to the money that Mil- ler misspent, and that the $2.3 million figure represented those victims’ net loss after accounting for any money they had received back in interest payments or from the bank- ruptcy proceedings. Miller stipulated to the $2.3 million No. 23-3324 7

figure as factually accurate but nonetheless objected to paying restitution. Miller maintained, similar to his loss amount ar- gument, that the evidence did not support restitution for any victims beyond those identified in the indictment and specif- ically proven at trial. The court rejected Miller’s objection, not- ing that the evidence at trial established that Miller was de- frauding clients over the lifetime of the fraudulent scheme, and that he was responsible for restitution to all the victims harmed during that scheme. The district court ultimately determined that Miller’s sen- tencing range under the Guidelines was 168 to 210 months’ imprisonment. The district court varied downward five levels based on historical sentencing data for comparable crimes and sentenced Miller to a term of 97 months’ imprisonment. The court then imposed the stipulated restitution figure of $2.3 million. II. Analysis Miller challenges the district court’s loss calculation of $4.5 million and the corresponding 18-level sentencing enhance- ment as unsupported by the record. He also appeals the evi- dentiary basis of the court’s $2.3 restitution award. We ad- dress each issue in turn. A. Calculation of Loss Section 2B1.1(b)(1) of the Sentencing Guidelines provides that, for certain crimes such as wire fraud, the defendant's base offense level is increased according to the “actual loss” or “intended loss” associated with the crime, whichever amount is greater. United States v. Newton, 76 F.4th 662, 672 (7th Cir. 2023) (citations omitted). Actual loss is defined as “the reasonably foreseeable pecuniary harm that resulted 8 No. 23-3324

from the offense.” Id. (citing U.S.S.G. § 2B1.1(b)(1) cmt. n.3(A)(i) (2021)). Intended loss, on the other hand, is “the pe- cuniary harm that the defendant purposely sought to inflict.” U.S.S.G. § 2B1.1(b)(1) cmt. n.3(A)(ii) (2021). “Because the of- fense of wire fraud is a scheme, the loss amount can include losses incurred in the entire scheme, not just losses from the individual transactions specified in the indictment.” United States v. Meza, 983 F.3d 908, 916 (7th Cir. 2020). Courts will therefore “aggregate losses to victims of the same course of conduct or common scheme or plan as the offense of convic- tion.” Id. at 915–16 (cleaned up). The government bears the burden of establishing the loss amount at sentencing by a preponderance of the evidence, but the district court is only obligated to make a “reasonable esti- mate” of loss based on the available evidence. See Newton, 76 F.4th at 672; U.S.S.G. § 2B1.1 cmt. n.3(C) (2021). We review the district court’s methodology for calculating loss de novo, but we review its ultimate calculation for clear error. See, e.g., United States v. Yihao Pu, 814 F.3d 818, 823 (7th Cir. 2016). “A defendant challenging a loss calculation bears a heavy bur- den: he must show that the court's loss calculations were not only inaccurate but outside the realm of permissible compu- tations.” United States v. Kyereme, 127 F.4th 702, 706 (7th Cir. 2025) (cleaned up). Here the district court correctly concluded that the in- tended loss caused by Miller’s fraudulent scheme was $4.5 million, the amount of money that Teagarden testified Miller misappropriated from 5 Star accounts. This figure—which Miller concedes was all misspent—strikes us as an eminently reasonable estimate of the harm that Miller sought to inflict on investors. Miller solicited funds from inexperienced No. 23-3324 9

investors in his own community who expected their money would not be used for any purpose other than real-estate in- vestments pursuant to the terms of the PPMs. And yet Miller intentionally diverted $4.5 million from 5 Star to himself and to unauthorized third parties for his own purposes and to en- rich his friends. Even when Miller eventually distributed a new PPM informing his clients about the green product in- vestments, he still deceived investors about the nature and purpose of the investments. We struggle to see a more straightforward and sensible estimate of the harm that Miller intended to cause than the total amount of money that he stole and misused contrary to his promises to investors. See, e.g., United States v. Moose, 893 F.3d 951, 955 (7th Cir. 2018) (affirm- ing loss calculation of $480,000 as “easy to understand” where the defendant “invested only $200,000 as promised of the $680,000 he persuaded investors to entrust to him and pock- eted the other $480,000”). Miller’s arguments to the contrary are unconvincing. First, he argues that the $4.5 million figure is inflated because it in- cludes money that was invested in 5 Star before he took over as sole owner on July 29, 2014, the date that the indictment alleges he began his scheme to deceive investors. As Miller sees it, 5 Star was operating as a legitimate business before this point, so any money invested during this period should not be considered as part of the loss amount, even though he later misspent that money during his fraudulent scheme. But this argument faces obstacles in our case law. We take it as true that some of the misspent money came into the business before Miller took over sole ownership in July 2014. But that does not matter to our analysis. We have repeatedly held that we generally calculate intended loss “by 10 No. 23-3324

considering the amount the defendant placed at risk with the fraudulent scheme.” United States v. Klund, 59 F.4th 322, 327 (7th Cir. 2023) (citing United States v. Durham, 766 F.3d 672, 687 (7th Cir. 2014) (collecting cases)); see also United States v. Lauer, 148 F.3d 766, 768 (7th Cir. 1998) (“[T]he amount of the intended loss, for purposes of sentencing, is the amount that the defendant placed at risk by misappropriating money or other property. That amount measures the gravity of his crime.”). We look to the entire amount placed at risk because “the purpose of fraud statutes is to punish the scheme, not simply the unlawful taking of money or property.” United States v. Stochel, 901 F.3d 883, 890 (7th Cir. 2018) (cleaned up); see also United States v. Mei, 315 F.3d 788, 792 (7th Cir. 2003) (noting that we look to the amount placed at risk in fraud cases “because the actual amount of money or property ob- tained generally understates the true financial loss”). It therefore makes no difference whether some of the $4.5 million in misspent funds was originally invested in 5 Star for legitimate purposes, because Miller undoubtably placed that money at the same risk of loss as the investments that came in after July 2014. That is, Miller intentionally placed the entire $4.5 million at risk of loss through his same unlawful common course of conduct of misappropriating investor money for un- authorized purposes. That entire amount is thus properly considered intended loss. See Lauer, 148 F.3d at 768. At the very least, it is a reasonable estimate of the loss, which is all that is required. See Newton, 76 F.4th at 672. 1

1 In fact, $4.5 million may be a conservative estimate of the amount

that Miller placed at risk. Recall that probation recommended a loss amount of $30 million, equating to the value of investments 5 Star had No. 23-3324 11

Second, Miller argues that the district court failed to trace the entire $4.5 million in misspent funds back to the individ- ual investors from whom the money originated. He contends that the district court needed to conduct an individualized in- quiry to determine whether he defrauded each investor at the time they made their investment. Without such findings, Mil- ler maintains that the evidence supports a loss amount only tied to the investments of the five victims proven at trial, which he estimates as no more than approximately $500,000. Our case law squarely rejects this contention. In calculat- ing the amount placed at risk for purposes of intended loss, “neither the text of the Guidelines nor the relevant case law requires the government or the court to identify who, or what entity, was at risk.” See United States v. Tartareanu, 884 F.3d 741, 745 (7th Cir. 2018) (citing United States v. Betts–Gaston, 860 F.3d 525, 539 (7th Cir. 2017)). To be sure, identification of spe- cific victims is necessary when it comes to calculation of res- titution awards, which must be based on the victims’ “actual loss.” See infra at 13. But there is no such requirement for

taken in from 470 investors over the life of the business at the time of its bankruptcy. Those investors received only a small portion of their contri- butions back though returns or bankruptcy. The district court found this larger loss figure unsupported because the government had not ade- quately shown that Miller’s embezzlement caused the business to col- lapse. But it is at least arguable that Miller’s fraud placed $30 million at risk. Alternatively, the record also indicates that 5 Star took in approxi- mately $10 million from some 70 investors during the indictment period alone. Teagarden was only able to trace $4.5 million of that to misspend- ing, but given the evidence that Miller was defrauding investors during the lifetime of his scheme, it could again be argued that he placed $10 mil- lion at risk. At a minimum, these higher figures show that the district court exercised considerable restraint in limiting loss to that which could be con- clusively tied to unauthorized expenditures. 12 No. 23-3324

intended loss, which is aimed at measuring the gravity of the fraudulent scheme as a whole, not the particular loss of money or property by individual victims. See, e.g., Meza, 983 F.3d at 915. The district court was therefore not required, when calculating loss, to identify individual victims or find that each one was specifically defrauded when they made their investment. Miller resists this conclusion by pointing to our precedent, but the principal cases he relies on, United States v. Schaefer, 291 F.3d 932, 937–40 (7th Cir. 2002), and United States v. Chube II, 538 F.3d 693, 702 (7th Cir. 2008), are inapposite. In both, we reversed and remanded sentencing enhancements because the district courts failed to adequately explain the basis of their decisions and to cite facts demonstrating that the en- hancements were based solely on conduct that was unlawful. These concerns are not present here where the district court adequately explained how it reached its conservative $4.5 million loss figure, which it reasonably concluded reflected the amount of money misspent as part of the same unlawful course of conduct. Finally, to the extent that Miller suggests that his unau- thorized spending—such as his investments with his friends’ green energy companies or his other legitimate real estate in- vestments—might have yielded sufficient returns to investors to cover what he misspent, that does not impact the intended loss analysis. We have previously explained that “[m]any em- bezzlers intend to pay back the money they have stolen,” but such an individual is “nevertheless an embezzler to the full extent of the amount he took, no matter how golden his inten- tions or happy the consequences.” Moose, 893 F.3d at 956 (quoting Lauer, 148 F.3d at 768). Of course, any returns to No. 23-3324 13

victims must be accounted for in restitution (which it was here). But intended loss is different. Whatever Miller hoped to gain by diverting money to his friends’ businesses or out- side firms like Global Impact, the intended loss includes the full amount of money he spent in violation of his promises to investors. In sum, we find no error in the district court’s calculation of $4.5 million in intended loss, which represents a reasonable estimate of the amount placed at risk by Miller’s fraudulent scheme. B. Restitution Amount Miller also challenges the district court’s restitution award. The Mandatory Victim Restitution Act mandated res- titution “in the full amount of each victim’s losses” because Miller was found guilty of wire fraud. 18 U.S.C. §§ 3663A(c)(1)(A)(ii), 3664(f)(1)(A). For restitution purposes, the district court may only use the actual loss amount, which accounts for funds already returned to victims or received through mechanisms such as bankruptcy proceedings. See United States v. Allen, 529 F.3d 390, 396–97 (7th Cir. 2008). Res- titution is appropriate not only for the victims identified in the charges of conviction but also for victims of the overall scheme. United States v. Locke, 643 F.3d 235, 247 (7th Cir. 2011) (“As long as the sentencing court can adequately demarcate the scheme, it can order restitution for any victim harmed by the defendant's conduct during the course of that scheme.”) (cleaned up). We review the district court’s restitution award for abuse of discretion. United States v. Betts, 99 F.4th 1048, 1060 (7th Cir. 2024). The government bears the burden of showing by a 14 No. 23-3324

preponderance of the evidence that the victim’s actual losses were “directly and proximately caused” by the defendant’s scheme. Id. at 1061. Miller’s arguments challenging the restitution figure are difficult to follow, given his concession that $2.3 million accu- rately reflects the investments made during the indictment period (after accounting for any returns or bankruptcy pay- ments received by investors). As best as we can tell, Miller raises essentially the same argument as above, faulting the district court for not making findings that Miller intentionally defrauded each of the proposed restitution victims at the time of their investment. Here too, this argument fails. The district court appropriately found, based on the evi- dence accepted by the jury, that Miller perpetrated a scheme to defraud investors between July 2014 and August 2015 by spending some $4.5 million contrary to the promises made to investors in the PPMs. Miller was therefore liable to pay res- titution to all victims that were harmed by his same scheme of misspending money, not just to those five victims who tes- tified at trial and for whom Miller’s fraud was specifically proven. See Locke, 643 F.3d at 247. Again, the purpose of the fraud statutes is to punish the entire scheme to defraud, “not just the isolated iterations of wire transmissions or mailings,” which is why “restitution for victims of the overall scheme is required.” Id. Miller does not argue that the district court erred in how it described his scheme, nor does he dispute the accuracy of Teagarden’s proffered testimony that all forty- five victims’ investments were traced to his $4.5 million in embezzled funds. Instead, he essentially suggests that the government must prove all the same elements necessary for No. 23-3324 15

conviction for each individual victim before they can receive restitution. That is not the law. See id. (“[W]here a defendant is con- victed of defrauding person X and a fraudulent scheme is an element of that conviction, the sentencing court has power to order restitution for the loss to defrauded person Y directly caused by the defendant's criminal conduct, even where the defendant is not convicted of defrauding Y.” (quoting United States v. Kones, 77 F.3d 66, 70 (3d Cir. 1996))). It was enough that the district court found that all forty-five victims were harmed by Miller’s same unlawful conduct of misappropriat- ing investor funds, a finding that was amply supported by the record. The district court therefore did not abuse its discretion in its restitution award. III. Conclusion For the foregoing reasons, we find no errors in the district court’s loss amount or restitution calculation. Accordingly, we AFFIRM the judgment of the district court.