United States v. Baldwin (414 F.3d 791, 2005)

SYKES, Circuit Judge.

Lloyd Baldwin was convicted of four counts of wire fraud for his involvement in a phony “prime bank funding program” that successfully separated Joe Piscopo from $3 million of his money. Baldwin’s first contention on appeal is that one count of the indictment was returned one day after the statute of limitations on that offense had expired. No one noticed this at the time, although the parties now agree that Count 1 was untimely. Because the statute of limitations argument was never raised in the district court, our review is for'plain error. Baldwin’s sentence on Count 1 is concurrent to the other counts, so the only additional punishment imposed on the admittedly untimely count is the $100 special assessment, which is not serious enough to warrant correction as plain error. See United States v. McCarter, 406 F.3d 460, 464 (7th Cir.2005).

Baldwin also challenges the sufficiency of the evidence to convict, but he has not carried his heavy burden on this argument. Finally, Baldwin challenges aspects of his sentence and the district court’s restitution order. The district court initially sentenced Baldwin to four concurrent 78-month terms of imprisonment, well below the 20-year statutory maximum in effect when Baldwin was before the court. But Baldwin’s frauds occurred in the mid-1990s when the statutory maximum for wire fraud was only five years. Realizing its mistake, the court corrected the sentence, but it did so well beyond the seven-day time period for correcting an erroneous sentence under Federal Rule of Criminal Procedure 35(a). We therefore vacate Baldwin’s sentence and remand for resen-tencing. Not everything needs to be redone, however. We reject Baldwin’s challenge to the district court’s imposition of a two-level sentence enhancement under the Sentencing Guidelines for abuse of a position of trust. We also reject his argument that the district court’s $3 million restitution order violates the Ex Post Facto Clause of the Constitution.

I. Background

Joseph Piscopo met Lloyd Baldwin at a trade show in the early 1970s when both men were working in the computer software industry. Piscopo later hired Baldwin as a vice president in the firm he owned; after two years in that position, Baldwin left on good terms. The two men kept in touch and in 1993 Baldwin approached Piscopo with an investment opportunity that he called a “prime bank funding program.” The pitch was simple and, it turned out, completely fraudulent. Baldwin said he would raise $40 million from various individuals and loan the money to unnamed “large-scale” European banks, which would use it to fund their cash reserves. Baldwin promised Piscopo that if he agreed to invest, he would reap a 12% return on a three-week investment or a 36% return on a nine-week investment. Baldwin offered his “personal guarantee” of the investment and assured Piscopo that his principal would “never be at risk.” Baldwin also told Piscopo that by channeling the proceeds through various corporate entities Baldwin set up in the Cayman Islands, profits on the plan would be tax free. Piscopo fell for it.

Piscopo signed a joint venture agreement with one Floyd Reeves, an associate of Baldwin, and agreed to invest $1 million in the “program” for a minimum of three weeks and a maximum of nine weeks, for an expected maximum return of 36%. He wired the funds to a bank account in Spain owned by Reeves. Within days more than $950,000 of the money was transferred from Reeves’ account to two accounts in New York, and within a week only 8