United States v. Loving

588 F. App'x 494
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 6, 2015
DocketNo. 14-2562
StatusPublished

This text of 588 F. App'x 494 (United States v. Loving) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Loving, 588 F. App'x 494 (7th Cir. 2015).

Opinion

Kenneth Loving falsely claimed to be unemployed and, over the course of 16 months, received roughly $25,000 in unemployment insurance benefits from the Illinois Department of Employment Security. Federal prosecutors charged him with one count each of mail fraud, 18 U.S.C. § 1341, and theft of funds belonging to the United States, id. § 641. Loving pleaded guilty to the § 641 charge. As provided in his written plea agreement, he waived the right to appeal his conviction and sentence except on narrow grounds not relevant here. The district court calculated a guidelines imprisonment range of 10 to 16 months and sentenced Loving to 10 months.

Loving filed a notice of appeal, but his appointed attorney, who also represented him in the district court, asserts that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Loving to comment on counsel’s motion, but he hasn’t done so. See Cir. R. 51(b). Counsel’s submission explains the nature of the case and adequately addresses the points that an appeal of this kind might be expected to involve. We thus limit our review to the subjects that the lawyer discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996).

In his Anders brief, counsel represents that Loving has no interest in challenging his guilty plea, and thus the lawyer refrains from discussing the adequacy of the plea colloquy, see FED. R. CRIM. P. 11(b), or the voluntariness of the plea. We accept counsel’s representation, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002), despite the unusual lack of detail in the government’s factual basis for the § 641 count.

That charge alleges that Loving stole federal funds, not from a federal agency, but from the Illinois Department of Employment Security, which runs the Illinois Unemployment Insurance Program in coordination with the federal government. An essential element of § 641 is that the stolen property belong to the United States. See 18 U.S.C. § 641; United States v. Garcia-Pastrana, 584 F.3d 351, 369-70 (1st Cir.2009); United States v. Barnes, 761 F.2d 1026, 1033 (5th Cir.1985). Most funds disbursed to claimants through the unemployment insurance program come from employers, not federal taxpayers. See 820 ILCS 405/1500, 405/2100(A); Paschal v. Jackson, 936 F.2d 940, 942 (7th Cir.1991). Although the federal government does help defray the program’s administrative costs, see 42 U.S.C. § 1101; 820 ILCS 405/2100, 405/2103, funds contributed to state or local agencies retain their character as federal property under § 641 only if the federal government continues to exercise sufficient supervision and control over those funds. See United States v. Wheadon, 794 F.2d 1277, 1283-85 (7th Cir.1986); United States v. Mitchell, 625 F.2d 158, 161 (7th Cir.1980); United States v. Sussman, 709 F.3d 155, 167 (3d Cir.2013); Garcia-Pastrana, 584 F.3d at [496]*496369. It is debatable whether that qualification can be met for purposes of § 641 if federal money is used indirectly in administering a state program. Compare United States v. Holmes, 111 F.3d 463, 464-66 (6th Cir.1997) (concluding that claimant who lies to obtain unemployment benefits from state agency that receives federal money for administrative costs cannot be prosecuted under 18 U.S.C. § 1001 unless benefits themselves are traceable to federal funds), and United States v. Facchini, 874 F.2d 638 (9th Cir.1989) (en banc) (same), with United States v. Herring, 916 F.2d 1543, 1546-47 (11th Cir.1990) (rejecting Faechini and concluding that lying to state unemployment insurance agency violates § 1001 even if federal contributions to state agency are used solely for administrative costs). Even so, the federal government also kicks in money to supplement employer contributions during times of high unemployment. See 42 U.S.C. § 1321; 820 ILCS 405/2100(C). Additionally, the federal government funds a portion of extended benefits when Congress appropriates money to augment regular benefits that end after 26 weeks. See 26 U.S.C. § 3304(a)(ll); Federal-State Extended Unemployment Compensation Act of 1970, Pub.L. No. 91-373, 84 Stat. 695, § 204(a)(1) (reprinted in statutory and historical notes to § 3304); American Recovery and Reinvestment Act of 2009, Pub.L. No. 111-5,123 Stat. 115, § 2005(a).

The record before us does not illuminate the government’s theory that Loving stole from the United States by fraudulently obtaining unemployment insurance benefits from the Illinois Department of Employment Security. Nonetheless, a guilty plea admits all essential elements of the charged crime. See United States v. Kilcrease, 665 F.3d 924, 929 (7th Cir.2012); United States v. Phillips, 645 F.3d 859, 863 (7th Cir.2011). Loving acknowledged in the plea agreement and again during the plea colloquy that federal ownership is an element of § 641, and with that understanding he still signed a “Stipulation of Facts” agreeing that the money he received “belonged to the United States of America and was administered by the Illinois Department of Employment Security.” That factual assertion, although con-clusory, is at least plausible; Loving could have received federal money because his thefts occurred during periods of “high unemployment,” see U.S. Dep’t of Labor, Emp’t & Training Admin.,

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Phillips
645 F.3d 859 (Seventh Circuit, 2011)
United States v. Sakellarion
649 F.3d 634 (Seventh Circuit, 2011)
United States v. Ronald Mitchell
625 F.2d 158 (Seventh Circuit, 1980)
United States v. A. Wendell Wheadon
794 F.2d 1277 (Seventh Circuit, 1986)
United States v. Facchini
874 F.2d 638 (Ninth Circuit, 1989)
United States v. Dennis D. Herring
916 F.2d 1543 (Eleventh Circuit, 1990)
United States v. Kilcrease
665 F.3d 924 (Seventh Circuit, 2012)
United States v. James R. Wagner
103 F.3d 551 (Seventh Circuit, 1996)
Garrie L. Stanback v. United States
113 F.3d 651 (Seventh Circuit, 1997)
United States v. Larry D. Knox
287 F.3d 667 (Seventh Circuit, 2002)
United States v. Chad Konczak
683 F.3d 348 (Seventh Circuit, 2012)
United States v. Barry Sussman
709 F.3d 155 (Third Circuit, 2013)
United States v. Ronald Zitt
714 F.3d 511 (Seventh Circuit, 2013)
United States v. Bey
748 F.3d 774 (Seventh Circuit, 2014)

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Bluebook (online)
588 F. App'x 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-loving-ca7-2015.