USA v. Christopher Eberts
Filing
Filed opinion of the court PER CURIAM. AFFIRMED. William J. Bauer, Circuit Judge; Daniel A. Manion, Circuit Judge and Michael S. Kanne, Circuit Judge. [6769679-1] [6769679] [15-2596]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2596
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CHRISTOPHER EBERTS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 13‐10070‐001 — Joe Billy McDade, Judge.
____________________
ARGUED JUNE 8, 2016 — DECIDED JULY 22, 2016
____________________
Before BAUER, MANION, and KANNE, Circuit Judges.
PER CURIAM. Christopher Eberts, a Canadian citizen and
U.S. permanent resident, is a film producer whose notable
credits include Lord of War (2005) and Lucky Number Slevin
(2006). But after producing a string of failed movies, in 2009
he filed for bankruptcy. He also convinced a novice author
from Illinois to wire him over $600,000 so that Eberts could
adapt his book into a movie. Eberts instead used that money
to buy lavish personal items, and his actions led to criminal
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charges. He pleaded guilty to seven counts of wire fraud,
see 18 U.S.C. § 1343, and three counts of money laundering,
see id. § 1957, and he was sentenced to 46 months’ imprison‐
ment. He argues that the district court failed to consider the
18 U.S.C. § 3553(a) sentencing factors or Eberts’s mitigation
arguments and instead based the sentence on unsupported
facts. We disagree and affirm the judgment.
I. BACKGROUND
Around the time that Eberts filed for bankruptcy in Cali‐
fornia, he was introduced by a mutual acquaintance to Illinois
resident Jeff Elliott. Elliott was interested in adapting into a
movie a book he had written several years earlier about his
son’s recovery from a brain tumor. Eberts and Elliott formed
a limited liability company in April 2009. Both men agreed to
invest money toward producing the movie, but Eberts did not
disclose his insolvency. Over the next year Elliott wired about
$615,000 to accounts controlled by Eberts. Eberts applied only
10% of that money toward the movie; he paid his father and
bankruptcy attorney thousands of dollars and spent the rest
on personal items like art, furniture, designer clothing, cus‐
tom shoes, luxury watches, cosmetic medicine, and fine
wines. Eberts also solicited and received a $25,000 loan from
Elliott for an unrelated project and never repaid it.
After Elliott discovered the scam in December 2010, he
severed ties with Eberts and sued him for fraud in federal
court.1 Eberts did not appear for the bench trial in that civil
1 Elliott later found other producers for the movie, which was released in
January 2015. See Hoovey, IMDB, http://www.imdb.com/title/tt2828884/
(last visited July 20, 2016).
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suit, and the district court ordered him to pay Elliott over
$1 million in compensatory and punitive damages. See Elliott
v. Eberts, No. 11‐1163 (C.D. Ill. May 22, 2012). Almost three
years later Eberts (via his mother) paid Elliott $400,000, and
Elliott agreed to forgo the remaining balance.
In the meantime Eberts was charged with seven counts of
wire fraud (for seven wire transfers from Elliott to Eberts),
see 18 U.S.C. § 1343, and three counts of money laundering
(for Eberts’s wire transfers to an art gallery, his father, and his
bankruptcy attorney), see id. § 1957. The district court released
him on bond but revoked the bond after Eberts tested positive
for cocaine and opiate use, failed to disclose an October 2014
state forgery conviction, and solicited $250,000 from an un‐
dercover FBI agent by pitching an unrealistic business invest‐
ment. A couple of weeks after Eberts had paid Elliott in the
civil suit, he pleaded guilty without a plea agreement to all
ten counts of wire fraud and money laundering.
A probation officer calculated a guidelines range of 37 to
46 months’ imprisonment. The total loss amount of $578,500
resulted in Eberts’s base offense level being increased by 14,
see U.S.S.G. § 2B1.1(b)(1)(H), and his total offense level thus
was 21 with a criminal‐history category of I. Eberts initially
objected to the loss calculation and the denial of an adjust‐
ment for acceptance of responsibility. But at the sentencing
hearing, he withdrew those objections and instead argued
that he deserved a below‐guidelines sentence because he had
demonstrated an “extraordinary acceptance of responsibil‐
ity” based on his willingness to plead guilty, the $400,000 he
had paid Elliott in the civil suit, and the likelihood of his re‐
moval to Canada after serving his sentence.
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Elliott and Eberts both testified at the sentencing hearing.
Elliott described how Eberts repeatedly lied to him, stole from
him, and put his family through a great deal of pain while
Eberts was off “having a good time partying in Greece, Spain,
[and] St. Barts.” For his part, Eberts apologized to Elliott and
his family and declared that he had “been overwhelmed by
feelings of remorse, guilt, sadness, [and] fear.” He insisted
that his “intentions going into the project to begin with were
all good” but that he had gotten “sidetracked to a certain
point for a variety of reasons.”
The district judge sentenced Eberts to 46 months’ impris‐
onment—the top of the guidelines range—and 3 years’ super‐
vised release, and ordered him to pay $178,500 in restitution.
The judge suspected that Eberts “saw an opportunity to capi‐
talize on someone’s vulnerability to make some money” when
he approached Elliott about making the movie. Eberts had
been living a “fast” and “glamorous” Hollywood lifestyle, the
judge said, and had used his “power of persuasion to sell a
con job to” Elliott even though Eberts “never had any inten‐
tions of making that movie.” The judge acknowledged that he
“could be wrong about that” but emphasized that Eberts had
spent only about $61,000 on producing the movie while
spending hundreds of thousands of dollars on “luxury items”
for himself. The judge also noted that Eberts’s actions while
released on bond—including fraudulently soliciting money
from an undercover FBI agent—showed that he was “not
trustworthy.” There existed a “substantial likelihood” that
Eberts would commit additional crimes because, the judge
continued, “I don’t think there is anything else you know how
to do.” The judge also rejected Eberts’s request for a lower sen‐
tence based on acceptance of responsibility, explaining that
the $400,000 payment was not “voluntary”—it merely was a
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settlement and a “good business deal” in a civil case where
Eberts owed over $1 million. Finally, the judge expressed his
desire to communicate to Eberts and others thinking of com‐
mitting similar crimes that they cannot “take advantage of
vulnerable people like that.”
II. ANALYSIS
On appeal Eberts challenges his within‐guidelines sen‐
tence. He first argues that the district court procedurally erred
because it did not “specifically address” the § 3553(a) factors
and instead forced the parties to “ascribe some connection im‐
plicitly.” But a district judge need not explicitly mention each
(or any) of the § 3553(a) factors, so long as the judge’s reason‐
ing is consistent with the applicable sentencing factors.
See United States v. Leiva, 821 F.3d 808, 822 (7th Cir. 2016);
United States v. Washington, 739 F.3d 1080, 1081–82 (7th Cir.
2014). The district judge’s reasoning easily satisfies that stand‐
ard: the judge considered the nature and circumstances of the
offense (highlighting that Eberts took advantage of Elliott by
selling him a “con job” to maintain his “glamorous” and
“fast” lifestyle), Eberts’s history and characteristics (stressing
that he continued his fraudulent behavior while out on bond),
the need to protect the community (finding a “substantial
likelihood” that Eberts would reoffend), and the need to pro‐
mote respect for the law and provide just punishment (noting
that the sentence should convey to Eberts and anyone think‐
ing of committing similar crimes that they “can’t take ad‐
vantage of vulnerable people like that”).
Eberts next argues that the district court failed to consider
his arguments in mitigation. First, he faults the court for not
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acknowledging that he faces removal to Canada upon his re‐
lease from prison. But the judge was not required to specifi‐
cally address Eberts’s undeveloped contention that he had
pleaded guilty in spite of his likely removal; while a district
court may consider a defendant’s immigration status, it need
not explicitly discuss a stock argument like the painful conse‐
quences of removal. See United States v. Mendoza, 576 F.3d 711,
721–22 (7th Cir. 2009). Second, Eberts faults the court for fail‐
ing to recognize that the $400,000 he paid Elliott in restitution
before pleading guilty represented an “extraordinary ac‐
ceptance of responsibility.” But, as explained by the district
court, Eberts’s payment was not even voluntary, let alone ex‐
traordinary—he waited to settle the civil suit with Elliott until
just days before he pleaded guilty, three years after he had
been ordered to pay over $1 million. See United States v.
Grasser, 312 F.3d 336, 340 (7th Cir. 2002) (concluding that de‐
fendant who, on day of sentencing, pledged 42% of amount
owed to plaintiff in civil suit did nothing extraordinary). And
the judge did take this payment into consideration by order‐
ing Eberts to pay restitution of only $178,500, the sum left over
after $400,000 was subtracted from the total loss amount.
Finally, Eberts argues that the district court based its sen‐
tence on “unsupported information.” In his view, the court
incorrectly found, for instance, that he had approached Elliott
about making the movie and that he never intended to make
the movie. But Elliott told the court that Eberts and their mu‐
tual acquaintance had raised the movie idea with him, and the
court was entitled to credit that characterization.
See United States v. Harris, 791 F.3d 772, 779 (7th Cir. 2015).
Moreover, Eberts pleaded guilty to wire fraud, which requires
a specific intent to defraud, see United States v. Weimert,
819 F.3d 351, 355 (7th Cir. 2016), and he acknowledged that he
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had “misrepresented [his] actions” to Elliott and spent only
10% of Elliott’s money on the movie. There was ample evi‐
dence to support the sentence imposed by the district court.
AFFIRMED.
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