United States of America v. Elbea Edward Malone

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2432
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
ELBEA EDWARD MALONE ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 12‐CR‐40053 — Sara Darrow, Judge.
____________________
A RGUED J ANUARY 21, 2014 — D ECIDED MARCH 31, 2014
____________________
Before KANNE and S YKES , Circuit Judges, and G ILBERT , Dis‐
trict Judge.
G ILBERT, District Judge. Elbea Edward Malone is a cattle
farmer who got in over his head when the cost of running
his cattle business began exceeding its income. For a while
he kited checks with his codefendant Richard Anderson to
 Honorable J. Phil Gilbert, District Judge of the United States District
Court for the Southern District of Illinois, sitting by designation.

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2 No. 13‐2432
keep his business afloat, but when that plan fell apart, he
and Anderson turned to fraud, specifically, selling non‐
existent cattle to Larry O’Hern. Malone eventually confessed
and pled guilty to bank fraud and money laundering. As
part of his sentence, the district judge ordered Malone to pay
restitution to O’Hern. Malone now challenges that compo‐
nent of his sentence. For the following reasons, we affirm the
district judge’s restitution order.
I. Background
Malone owned and ran a cattle feedlot where he housed
and cared for other people’s cattle, including some owned by
Galesburg Livestock Sales, Inc. (GLS). Anderson was GLS’s
president, but the company was owned by two other indi‐
viduals. Malone also worked as an agent of GLS to buy cattle
to fatten up and sell later. GLS’s cattle served as collateral for
its loans.
In 2008, the feedlot started losing money due, in part, to a
higher than usual rate of cattle death, environmental prob‐
lems at the feedlot, and other economic challenges to the cat‐
tle industry generally. This jeopardized Malone’s business as
well as GLS’s business loans for which its cattle served as
collateral. Malone and Anderson, on behalf of GLS, turned to
check kiting to keep their respective accounts from being
overdrawn; one would write a check to the other, and before
it was collected, the other would write a check back to the
first, so it appeared there were funds in Malone’s and GLS’s
bank accounts when there really were none. The details of
the check kiting scheme between Malone and Anderson are
not relevant, but the manner in which Malone sought to ex‐
tricate himself from debt once the banks involved detected
the check‐kiting scheme is.

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No. 13‐2432 3
Malone was overdrawn by $400,000 in late 2009 when his
bank threw a wrench into the check kiting scheme. To obtain
funds to cover the debt, Malone and Anderson arranged to
sell O’Hern 700 cattle that they said GLS had acquired for a
buyer who had backed out of the deal. O’Hern paid $400,000
for the cattle, which Malone deposited into his overdrawn
bank account. In reality, there were no cattle, no reneging
buyer, and, ultimately, a very angry O’Hern. Malone gave
O’Hern $115,000 in an effort to appease him.
O’Hern was not appeased and instead turned to self‐
help. In February 2010, he visited Malone’s feedlot and re‐
moved an undetermined number of cattle from the lot. The
cattle, of course, did not belong to Malone, who only kept
other people’s cattle—including some belonging to
O’Hern—on his feedlot. O’Hern also obtained liens on real
property owned by Malone and Anderson. Eventually
O’Hern filed a civil suit in state court seeking to sort out,
among other things, who owed what to whom as a result of
Malone’s cattle selling antics and O’Hern’s resorting to self‐
help. That case is ongoing.
In the meantime, Malone and Anderson came to the at‐
tention of law enforcement. Malone was indicted in July
2012 on ten counts of bank fraud and one count of money
laundering. In January 2013, he pled guilty to one bank
fraud charge and the money laundering charge.
At sentencing, Malone urged the district judge to refrain
from ordering restitution to O’Hern on the theory that
O’Hern had already received a full recovery for his losses
from the cattle he took from Malone’s feedlot, from fees
O’Hern still owed Malone for care of his (real) cattle, and
from the liens on Malone’s real property. Malone also asked

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4 No. 13‐2432
the district judge to exercise her discretion under 18 U.S.C.
§ 3663A(c)(3)(B), often referred to as the “complexity excep‐
tion,” not to order restitution because the need to compen‐
sate O’Hern was outweighed by the burden of determining
complex issues regarding the amount of his losses.
Despite Malone’s request, the district judge imposed res‐
titution in the amount of $285,000, the difference between
the $400,000 O’Hern paid for the non‐existent cattle and the
$115,000 Malone refunded him, to be paid jointly and sever‐
ally with Anderson.
In doing so, the district judge made some comments that
Malone argues reflected a misunderstanding of her obliga‐
tion to impose restitution. First, with respect to the complexi‐
ty exception, 1 she stated:
I guess I looked at that as if it would—if, in order
for the Court to determine restitution, the instant mat‐
ters—the sentencing in this instant matter would have
to be continued, then that would trigger the applica‐
tion of that, not necessarily because it would be com‐
plicated, therefore you wouldn’t have to enter the or‐
der.
And I don’t think there is any request to continue
this sentencing hearing until the state court case has
resolved.
(R. 51, Sent. Tr. 11) Later, the district judge also stated she
had no discretion as to whether to impose restitution. (R. 51,
1 The judge cited 18 U.S.C. § 3663(a)(1)(B)(ii), a similar provision in the
Victim and Witness Protection Act of 1982, the statute addressing non‐
mandatory restitution.

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No. 13‐2432 5
Sent. Tr. 22) Malone argues that these statements show the
district judge did not understand she had discretion to re‐
frain from ordering restitution under the complexity excep‐
tion even where a continuance of the sentencing had not
been requested.
With reference to the state court litigation regarding
debts between O’Hern and Malone, if there are any, the dis‐
trict judge stated:
While the Court is mindful of the fact that there is
a pending state court proceeding in which many of
these subissues will be determined by a different trier
of fact, as to whether or nor Mr. [O’Hern] has actual‐
ly—is still actually owed $285,000 or a sum that’s been
offset by the different cattle that was taken off of the
lot and perhaps not paying for care of cattle, different
cattle, that he already had on the Malone farm, I feel
that those—those are issues a little bit farther down in
the weeds than are necessary for the Court to have the
benefit of at this time in determining whether or not
restitution should be ordered as part of this case.
(R. 51, Sent. Tr. 21) She further stated she believed she could
“offset [the amount of restitution] by any payments already
then made by the defendant towards the victim up until to‐
day’s date,” but that she did not think she could “offset [her]
judgment of restitution by any future or contemplated pay‐
ments.” (R. 51, Sent. Tr. 16) Malone argues that the first of
these two statements shows the district judge did not appre‐
ciate her ability to consider the pendency of the state court
proceedings when deciding whether to refrain from order‐
ing restitution under the complexity exception.

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6 No. 13‐2432
Malone also argues the Government failed to prove by a
preponderance of the evidence, and the district judge failed
to find, the amounts owed to O’Hern considering the value
of his self‐help measures. Finally, Malone argues the district
judge erred by failing to delay entry of the restitution order
pursuant to 18 U.S.C. § 3664(d)(5) in light of the inability to
ascertain O’Hern’s losses at least ten days before sentencing.
II. Discussion
A. Mandatory Victims Restitution Act
Restitution in this case is governed by the Mandatory
Victims Restitution Act of 1996 (MVRA), codified largely at
18 U.S.C. §§ 3663A and 3664. The MVRA applies to property
crimes achieved by fraud or deceit where there is an identi‐
fiable victim, 18 U.S.C. § 3663A(c)(1), and provides that the
Court “shall order” the defendant to make restitution to the
victim, 18 U.S.C. § 3663A(a)(1); see 18 U.S.C. § 3664(f)(1)(A)
(“In each order of restitution, the court shall order restitution
to each victim in the full amount of each victim’s losses as
determined by the court and without consideration of the
economic circumstances of the defendant.”). Congress in‐
tended the MVRA to ensure victims are compensated for the
full amount of their losses caused by a defendant’s criminal
conduct. United States v. Robers, 698 F.3d 937, 943 (7th Cir.
2012), cert. granted, 134 S. Ct. 470 (2013). The MVRA supple‐
mented the earlier Victim and Witness Protection Act of
1982, 18 U.S.C. § 3663 (VWPA), which had required courts to
consider the defendant’s economic condition before ordering
restitution and allowed courts discretion to refrain from or‐
dering a defendant to make restitution.

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No. 13‐2432 7
Under the MVRA, 18 U.S.C. § 3663A(b)(1), an order of
restitution for property loss must require the defendant to
return the property to the victim or to return the value of the
property minus “the value (as of the date the property is re‐
turned) of any part of the property that is returned.” 18
U.S.C. § 3663A(b)(1)(A)(ii). Any amount the victim has re‐
ceived from the defendant in a civil suit as of the time of sen‐
tencing qualifies as “property that is returned” and must be
used to reduce the restitution amount to prevent double re‐
covery by the victim. See United States v. Gallant, 537 F.3d
1202, 1250 (8th Cir. 2008). However, while sums received
from the defendant before sentencing are fair game,
amounts received or due from third parties are not. The
MVRA prohibits courts from considering “the fact that a vic‐
tim has received or is entitled to receive compensation with
respect to a loss from insurance or any other source.” 18 U.S.C.
§ 3664(f)(1)(B) (emphasis added). Thus, when determining
the restitution amount the court is confined to considering
(1) the property or value of property lost by the victim and
(2) the value of property returned from the defendant to the
victim, but not the victim’s receipt of property from third
parties.
The Government bears the burden of proving the loss
amount by a preponderance of the evidence, while other
burdens are to be allocated as justice requires. 18 U.S.C.
§ 3664(e). Courts have decided it is appropriate to place on
the defendant the burden of proving that the loss amount
should be reduced by compensation received by the victim
from the defendant. United States v. Scheinbaum, 136 F.3d 443,
449 (5th Cir. 1998). This is because the defendant is in the
best position to know what he has returned to the victim and
has the strongest incentive to litigate the issue. Id.

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8 No. 13‐2432
If the victim’s losses cannot be ascertained ten days be‐
fore the sentencing hearing, after notification by the Gov‐
ernment or the Probation Office, the court must set a date to
determine the loss within ninety days after the sentencing
hearing. 18 U.S.C. § 3664(d)(5). If later losses are discovered,
the victim may petition the court for an amended restitution
order. Id. By the same token, if a victim later recovers in a
civil suit some of his loss as compensatory damages, the
court may reduce the restitution amount. 18 U.S.C.
§ 3664(j)(2).
Malone seeks refuge in a narrow exception to the
MVRA’s mandatory restitution in cases where determining
the amount of restitution would be unduly burdensome—
the so‐called complexity exception:
This section shall not apply … if the court finds, from
facts on the record, that—
* * *
(B) determining complex issues of fact related to the
cause or amount of the victim’s losses would compli‐
cate or prolong the sentencing process to a degree
that the need to provide restitution to any victim is
outweighed by the burden on the sentencing process.
18 U.S.C. § 3663A(c)(3). The complexity exception creates a
balancing test where a court must weigh the need to provide
restitution to a victim against the burden on the sentencing
process posed by determining complex issues of fact. By en‐
acting this provision, Congress intended district courts to
use streamlined processes to make restitution decisions
quickly and to “not become embroiled in intricate issues of
proof.” United States v. Reifler, 446 F.3d 65, 136 (2d Cir. 2006);

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No. 13‐2432 9
see FED. R. C RIM. P. 32(b)(1) (“The Court must impose sen‐
tence without unnecessary delay.”). For example, in Reifler,
the Court of Appeals for the Second Circuit suggested the
complexity exception might apply where a restitution order
would require determining complex issues of causation and
value of losses to shareholders of a company involved in
criminal fraud because the shareholders bought and sold
shares for various reasons and at various times. Id. at 139.
In applying the complexity exception’s balancing test to
determine whether to award restitution, 2 the court is not
prohibited from considering the existence of a separate civil
suit involving the defendant that may provide a full or par‐
tial recovery to the victim. Such a suit, of course, could con‐
ceivably lessen the “need to provide restitution to any vic‐
tim” in the criminal proceeding because relief may be avail‐
able in the civil proceeding. Gallant, 537 F.3d at 1254. How‐
ever, “[a] district court should not place great weight on this
factor. The mere fact that a victim has filed a civil suit, or the
possibility that the victim could in the future file such a suit,
is of little—and, typically, no—relevance.” Id. (emphasis in
original). The main concern of the complexity exception is
avoiding a burden on the court that would bog down a sen‐
tencing proceeding. Id. Generally, if determining a victim’s
loss creates a minimal burden on the sentencing court, the
existence of a separate civil proceeding that would address
the same issues will not be relevant.
2 Once the court decides to order restitution in spite of the complexity
exception, as noted above it may not consider a victim’s entitlement to
receive compensation from another source—such as a civil proceeding
against a third party—in determining the amount of restitution to order.
18 U.S.C. § 3664(f)(1)(B); Gallant, 537 F.3d at 1253‐54.

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10 No. 13‐2432
The Court of Appeals generally reviews the district
court’s decision to order restitution de novo and its calcula‐
tion of the amount for abuse of discretion. United States v.
Rand, 403 F.3d 489, 493 (7th Cir. 2005). However, a district
court’s decision regarding application of the complexity ex‐
ception is reviewed for abuse of discretion. United States v.
Gushlak, 728 F.3d 184, 192 (2d Cir. 2013); see United States v.
Wirth, 719 F.3d 911, 918 (8th Cir. 2013).
B. Application to Malone’s Sentencing
The district judge properly understood her authority un‐
der the MVRA and did not abuse her discretion when she
ordered Malone to pay $285,000 in restitution to O’Hern. In
coming to this conclusion, we keep in mind that we must
consider the record as a whole rather than plucking the dis‐
trict judge’s statements out of context to create confusion or
misunderstanding where none exists. See, e.g., United States
v. Black, 116 F.3d 198, 202 (7th Cir. 1997) (record as a whole
demonstrated district judge was aware of his discretion de‐
spite isolated comment to the contrary). Judges do not al‐
ways speak as clearly as they would write, and it would be
wrong to interpret imperfection in oral expression to mean
more than the context suggests it means.
The record as a whole shows that the district judge cor‐
rectly understood her obligation to order restitution and did
not abuse her discretion in declining to apply the complexity
exception. She understood that any order of restitution was
governed by the mandatory restitution provisions of the
MVRA rather than the VWPA. She further demonstrated she
was aware of the complexity exception (although she once
cited the statutory citation for the VWPA’s similar complexi‐
ty exception) but declined to apply the exception because

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No. 13‐2432 11
she thought the issue of restitution was simple and did not
require a complicated or prolonged sentencing process. She
noted that no party thought prolonging the proceedings by
moving for a continuance was necessary, and acknowledged
that the complicated issues in the state court litigation were
“a little bit farther down in the weeds” than she needed to
go to order restitution to O’Hern. Thus, although she did not
expressly explain her balancing of the relevant complexity
exception factors, she clearly considered those factors and
exercised her discretion not to apply the exception in this
case. Having done so, her statement that she did not have
discretion as to whether to impose restitution was correct
and did not reflect a misunderstanding of her authority or
discretion under the MVRA.
Even if the district judge had misunderstood her discre‐
tion, it would have been an abuse of that discretion to apply
the complexity exception because the calculation of the
amount of restitution was simple. It could not, under any
stretch of the imagination, have required a complicated or
prolonged sentencing process, much less one so complicated
or prolonged that it could have outweighed O’Hern’s need
for restitution, even considering the existence of the state
court civil suit. Under 18 U.S.C. § 3663A(b)(1), the calcula‐
tion involved consideration of two, and only two, things: (1)
the property O’Hern lost or its value (which are essentially
the same thing when, as here, the property is cash), see 18
U.S.C. § 3663A(b)(1)(A) and (B)(i), and (2) “the value (as of
the date the property is returned) of any part of the property
that is returned,” 18 U.S.C. § 3663A(b)(1)(A)(ii). The value of
the property O’Hern lost was $400,000, the amount he paid
for the non‐existent cattle, and the value of the part of that
property that Malone returned was $115,000, the refund

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12 No. 13‐2432
Malone gave O’Hern after O’Hern learned of the fraud. The
difference between the two, $285,000, was the proper restitu‐
tion amount, and the district judge did not abuse her discre‐
tion in so finding.
The cattle O’Hern obtained through self‐help, the cattle
care services for which O’Hern had not paid Malone, and
the liens O’Hern obtained on Malone’s real property were
irrelevant to the restitution calculation.
First, at least some of those items did not qualify as “any
part of the property that is returned,” 18 U.S.C.
§ 3663A(b)(1)(A)(ii), such that they could have reduced the
restitution payment due to O’Hern. We have recently held
that “property” under this provision means “the property
stolen,” that is, property of the same type as the property
lost by the victim. United States v. Robers, 698 F.3d 937, 942
(7th Cir. 2012), cert. granted, 134 S. Ct. 470 (2013). In Robers,
we held that a district court could not consider the return of
real property to lower the restitution amount where the vic‐
tim lost cash through a mortgage fraud scheme (at least not
until the real property had been converted into cash). Id.
Here, cash was stolen from O’Hern, and cattle, cattle care
services, and liens are clearly not cash. Therefore, the district
court could not have considered O’Hern’s receipt of those
items to reduce the restitution amount unless they were con‐
verted to cash.
With respect to the cattle O’Hern took from Malone’s
feedlot and sold to convert into cash, that amount could not
be considered to offset the loss amount if it came from a
source other than Malone or his codefendant Anderson, who
is jointly and severally liable for the restitution ordered.
Since Malone did not keep his own cattle on the feedlot, the

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No. 13‐2432 13
cattle O’Hern took belonged either to third parties or to
O’Hern himself. To the extent it was O’Hern’s own cattle, it
would be absurd to reduce the amount of restitution Malone
owed O’Hern based on O’Hern’s repossession of his own
cattle. To the extent it belonged to third parties other than
Anderson, the MVRA is clear that receipt of, or entitlement
to receive, compensation from any source other than the de‐
fendant cannot be considered in determining the amount of
restitution. 18 U.S.C. § 3664(f)(1)(B).
To the extent O’Hern may have taken and sold Ander‐
son’s cattle, the proceeds of such a sale could have been used
to reduce the restitution amount since Malone and Anderson
were jointly and severally liable for the restitution ordered.
However, Malone failed to prove any of the cattle O’Hern
took and sold belonged to Anderson. It is true that he point‐
ed to evidence that some of the cattle O’Hern sold belonged
to GLS but none of that evidence showed the cattle belonged
to Anderson.3 If the cattle were not Anderson’s, proceeds from
their sale could not be used to offset O’Hern’s loss, and the
district judge was correct not to factor them into the restitu‐
tion amount.
In sum, the district judge’s restitution award was sup‐
ported by the preponderance of the evidence regarding
O’Hern’s loss and the cash that was returned to him, the only
two relevant factors. It would have been error for the district
judge to consider other amounts O’Hern may be adjudged to
owe Malone or Anderson in a forthcoming state court deci‐
3 Malone inaccurately referred to those cattle in his brief and at oral ar‐
gument as Anderson’s, but the evidence he offered in support indicated
they were GLS’s.

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14 No. 13‐2432
sion. 4 Since those other amounts were irrelevant, the district
judge did not err in failing to postpone the determination of
restitution under 18 U.S.C. § 3664(d)(5) to allow time to de‐
termine those amounts. Nor did she misunderstand her dis‐
cretion to apply the complexity exception or abuse her dis‐
cretion by not doing so where the restitution calculation was
straightforward. Accordingly, the district judge’s restitution
decision is
A FFIRMED.
4 This does not mean, however, that O’Hern will get a windfall if things
go his way in the state court case. If the state court makes a finding that
Malone believes entitles him to a set‐off under the MVRA, he may peti‐
tion the Court to reduce the restitution award amount at that time. See 18
U.S.C. § 3664(j)(2).

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