NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 19, 2010
Decided June 29, 2010
Before
SANDRA DAY O’CONNOR, Associate Justice*
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐2600
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District
of Wisconsin.
v.
No. 04‐CR‐00023
NEAL K. ALLEN,
Defendant‐Appellant. Barbara B. Crabb,
Judge.
O R D E R
Neal Allen pled guilty to one count of mail fraud, in violation of 18 U.S.C. § 1341, and
was ordered to pay restitution in the amount of $363,038 at his initial sentencing hearing. This
Court vacated the restitution order and remanded for recalculation because the District Court
*
The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme
Court (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a).
No. 09‐2600 Page 2
failed to calculate the actual loss suffered by Allen’s victims. United States v. Allen, 529 F.3d 390,
397 (7th Cir. 2008). On remand, the District Court held an evidentiary hearing and recalculated
the amount of restitution owed by Allen. The case now comes to this Court a second time, with
Allen again challenging the District Court’s restitution calculation.
This Court has previously recounted the details of Allen’s fraudulent scheme, id. at
391–93, so we provide only a brief account here. Allen falsely advertised himself as an expert
in mold testing and mold remediation. He used falsified credentials claiming various degrees
and prior positions that he never actually attained. Based on his advertisements, an attorney
for the Lac du Flambeau (“LdF”) Band of Lake Superior Chippewa Indians hired Allen to
provide mold testing services. The tribe wanted the testing done to evaluate a potential legal
claim against the United States and to assess a potential claim for federal funding. Based on
Allen’s advice, LdF contracted with him to provide air sampling and analysis of possible mold
in approximately 400 LdF homes. Allen was also to provide remediation training and expert
testimony for LdF. For his services, LdF paid Allen a total of $286,342. In the District Court’s
previous restitution calculation, it ordered Allen to pay that amount to LdF plus several
thousand dollars that LdF paid to house Allen and his employees, for a total of slightly more
than $290,000. The District Court also ordered Allen to pay an additional $71,345 in restitution
to Aerotech Laboratories, which he owed for lab testing.
This Court vacated and remanded the restitution order because the District Court did not
calculate the actual loss suffered by LdF. Id. at 397. That is to say, the District Court was
required to, but did not, “take into account (and deduct) pecuniary value the victim(s) gained
by way of the defendant’s conduct” in its restitution calculation. Id. This Court did not express
any opinion as to whether Allen’s victims gained any pecuniary value from his services, but
simply instructed the District Court to undertake that inquiry.
On remand, the parties agreed that Allen owed Aerotech $71,345, but disputed how
much actual loss LdF suffered. The District Court held an evidentiary hearing to determine that
amount. The Government argued that the initial restitution order should be discounted by
approximately $55,000. The bulk of this deduction was based on the value of visual inspections
that Allen performed of LdF homes and the remediation training he provided. In the
Government’s estimation, after this discount, Allen owed LdF approximately $238,000 in
restitution. Allen argued that he owed less than that, believing that he should also get credit for
air testing services he performed. The Government presented the live testimony of one expert,
Daniel Feldt, and reports from three others, all concluding that the air testing was unnecessary
and valueless to LdF. Feldt opined that visual inspections for mold are a sufficient detecting
mechanism and that air testing is only advisable to measure the effects of remediation efforts
or when a physician instructs that it is needed. Allen presented his own expert, who concluded
No. 09‐2600 Page 3
that the air testing had some value, although he did not specify how much. The District Court
agreed with the Government’s experts that the air testing was of no value to LdF, and
determined that LdF was owed $238,362 in restitution.
Allen argues on appeal that the District Court abused its discretion because it made its
restitution calculation based on a clearly erroneous finding that the air testing was worthless.
See id. (“We will review for an abuse of discretion whatever determination the district court
makes about the actual loss suffered by the LdF”); United States v. Adcock, 534 F.3d 635, 643 (7th
Cir. 2008) (reviewing factual determinations in support of restitution calculation for clear error).
Allen’s argument is little more than an assertion that his own expert was more credible than the
four Government experts. We will not revisit the District Court’s determination that, under
these circumstances, the air testing was unnecessary and worthless to LdF because there is
sufficient support in the record and the determination was not clearly erroneous. While Allen
suggests that LdF would not have requested the air testing unless it was valuable, this overlooks
the District Court’s finding that the request itself was based on Allen’s flawed and misleading
advice. We reject Allen’s argument that the District Court abused its discretion in making its
restitution calculation.
There is one remaining issue, raised by the Government. The District Court ruled, both
from the bench and in a subsequent opinion, that Allen owed restitution to LdF in the amount
of $238,362 in addition to the $71,345 he owed Aerotech. But the Court’s judgment did not
reflect this ruling. The judgment provided that Allen owed a total of $238,362, consisting of
$167,017 owed to LdF and the $71,345 owed to Aerotech. This was clearly a clerical error,
mistakenly subtracting Aerotech’s award from LdF’s award, as Allen’s counsel admitted at oral
argument. We therefore remand the case to the District Court to correct the error. See United
States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005) (ordering district court to amend its written
judgment in light of a calculation error). The District Court’s judgment should reflect that Allen
owes LdF $238,362, and owes Aerotech $71,345, for a total of $309,707.
We AFFIRM in part, VACATE in part, and REMAND the case to the District Court for
correction of its clerical error.