United States of America v. Sushil A. Sheth

Dr. Sushil Sheth amassed significant

wealth as a cardiologist, but, as he later admitted in a plea

agreement, he did so in a scheme to overbill government and

private insurers by approximately $13 million. In his plea

agreement he agreed to forfeit $13 million in assets as a condition

of his plea. The United States, in turn, allowed that it

would apply the proceeds of the forfeited property to any restitution

judgment resulting from his conviction. Sheth now

2 No. 17-2741

disputes that the United States gave him the appropriate

credit for some of the forfeited assets. We agree with Sheth

that he did not receive the proper credit for certain bank account

funds, but affirm the district court’s decision as to the

valuation of the real property he contests.

I.

The specifics of Sheth’s crimes are not relevant to this appeal

other than that they resulted in a loss to Medicare of

about $9 million in payments for services Sheth did not render

between 2002 and 2007, and a loss of about $4 million to private

healthcare insurers for the same conduct.1 After the government

detected the fraud, in June 2007, it initiated an administrative

proceeding in which the United States seized

funds from four Harris Bank accounts that the government

believed were the proceeds of Sheth’s fraud.2 Harris Bank released

those funds to the United States Marshal Service on

September 11, 2007. Although the district court opinion did

1 Sheth’s conduct was also the subject of a qui tam civil action filed under

the False Claims Act, 31 U.S.C. §§ 3729–3733, see United States et. al. v.

Sushil A. Sheth, M.D., No. 1:06-cv-02191 (N.D. Ill., filed April 19, 2006), and

for which there was a $20 million civil judgment. This action is not relevant

here but played some role in the first appeal of Sheth’s criminal case,

particularly in the discussion of restitution, as the $12.37 million criminal

judgment was a subset of the losses in the $20 million civil judgment. See

United States v. Sheth, 759 F.3d 711, 712–13 (7th Cir. 2014).

2 There was one Harris Bank investment account that the government later

relinquished to Sheth’s wife, Anita Sheth, and to the Sheths’ children

which is not relevant to this matter. Anita Sheth successfully petitioned

the court, asserting that the funds in that account belonged to her and that

she added her husband’s name to the account solely for estate-planning

purposes. When we refer to the Harris Bank accounts, we refer only to the

remaining accounts which are at issue in this case.

No. 17-2741 3

not explicitly so state, the parties do not dispute that the Marshals

Service held those seized assets in an interest-bearing

account.

Meanwhile, in January 2009, the government charged

Sheth with healthcare fraud in violation of 18 U.S.C. § 1347.

The information sought forfeiture of certain real property,

personal property, and funds alleged to be the proceeds of the

fraud scheme. Sheth pleaded guilty in August 2009 and

agreed to forfeit $13 million in assets. On the other side of the

plea agreement, the United States agreed to apply the proceeds

of the forfeited property to any restitution agreement.

Restitution is a loss-based penalty which seeks to compensate

a victim for losses it has incurred, while forfeiture seeks to

rectify the ill-gotten gains of the defendant. See United States

v. Swanson, 394 F.3d 520, 527–28 (7th Cir. 2005).3

In this case the government entered into a plea agreement

with Sheth which stated:

Defendant further understands that while forfeiture

of property is not typically treated as satisfaction

of any fine, restitution, cost of imprisonment,

or any other penalty the Court may impose,

it is agreed by the parties that any payments

made in satisfaction of the forfeiture

judgment shall be credited to any outstanding

restitution judgment.

3 For example, one might imagine a scenario in which a defendant stole a

painting worth $1 million but sold it on the black market for $5,000. The

loss to the owner of the painting is $1 million dollars for which she may

be paid restitution (if the painting is never recovered), although the defendant

can only forfeit the $5,000.

4 No. 17-2741

Plea Agreement, R. 35 at 15. In short, the government agreed

to apply the forfeited property to whatever Sheth owed as restitution

for his crime. The district court then sentenced Sheth

to 60 months’ imprisonment and found him liable for

$12,376,310 in restitution to Medicare and the private

healthcare insurers.

On August 11, 2010, the court entered a preliminary forfeiture

order stating that “all right, title, and interest of defendant

Sushil Sheth in the following [enumerated] property

is hereby forfeit[ed] to the United States of America for disposition

according to law.” R. 66 at 5. Between the date that the

government seized the Harris Bank funds and the time those

funds were forfeited in 2010, they had accrued $225,000 in interest.

Government Reply Brief in Support of its Motion to

Ratify Turnover Order, R. 270 at 5 (the government conceding,

“[t]he United States tendered discovery to Sheth showing

that the Marshals Service calculated such interest to be about

$225,000.”). That interest was forfeited and turned over to the

government along with the principal. In this appeal, Sheth argues

that the government failed to give him credit toward restitution

for this approximately $225,000 in interest that had

accrued on the $6.5 million in assets seized from the four Harris

Bank accounts and turned over to United States coffers.

Sheth also contests the value credited to him for his primary

residence in Burr Ridge, Illinois. Sheth owned two parcels

of real estate in Burr Ridge. The first, and the subject of

this appeal, was the Sheths’ residence on Crown Court (“the

residence”). The other, not contested here, was an apartment

also located in Burr Ridge. After the court issued the preliminary

order of forfeiture, Sheth’s then wife, Anita Sheth, and

their children, filed a petition in 2011, claiming some of the

No. 17-2741 5

forfeited property as their own, including these two parcels

of real estate. During the 2011 discussions with Anita Sheth

about this contested property, the United States erred in assessing

the value of the family residence. The United States

relied on a 2010 appraisal that the Marshals Service obtained

in connection with the forfeiture proceedings which showed

that the property was worth $1,086,000 and was encumbered

by a $1,559,500 mortgage—in other words, the property was

underwater and worthless to the government. The United

States therefore relinquished the property to Anita Sheth. It

turned out, however, that the government was mistaken

about the mortgage indebtedness on the property and the residence,

in fact, held significant equity.

The dispute over the value of these assets and others came

to a head in September 2012, when the government filed a

motion attesting that Sheth was $1,699,941 shy of fulfilling his

restitution order and asking the court to issue turnover orders

for five retirement accounts worth a total of $300,738 (The

government claimed that the forfeited assets satisfied

$10,709,309 of the $12,376,301 judgment).4 See Motion to Ratify

Turnover Order, R. 259. Sheth objected, arguing that the

assets in the government’s possession were sufficient to satisfy

the restitution order. The district court ruled for the government,

and Sheth appealed. This court held that whether

the United States gave Sheth all credits he was due “is a factual

dispute that the district court, after allowing for discovery,

should have resolved before ruling on the turnover

4 The numbers do not add up exactly, because the unpaid judgment was

always accruing interest. At the time of the motion to ratify turnover orders,

on October 10, 2014, Sheth owed approximately $33,000 in interest.

See Motion to Ratify Turnover Order, R. 259 at 2.

6 No. 17-2741

motion,” allowing Sheth the opportunity for “discovery and

an evidentiary hearing when he asserted a defense to the government’s

collection effort.” United States v. Sheth, 759 F.3d

711, 718 (7th Cir. 2014). Notably, we held the government

firmly to its promise in the plea agreement that “any payments

made in satisfaction of the forfeiture judgment shall be

credited to any outstanding restitution judgment.” Id. at 717

(quoting plea agreement) (emphasis in opinion). We remanded

the case to the district court for these purposes.

It was during these hearings that Sheth contended that he

was entitled to the interest earned on the Harris Bank accounts

from the time of seizure to forfeiture. The United States

stipulated that if Sheth was entitled to credit, the interest was

worth $225,000, but argued that he was not so entitled. The

district court agreed.

Sheth also asserted that he was entitled to credit for equity

in the Burr Ridge residence. During supplemental filings on

remand, Sheth informed the United States that the Sheths had

paid down $900,000 of the mortgage and, therefore, there was

significant equity in the home released to Anita Sheth. With

this new information at hand, the United States agreed to reevaluate

the property and concluded that it had been mistaken

about the outstanding amount of the mortgage indebtedness

when it relinquished the property to Anita Sheth. If

the government had used the corrected mortgage indebtedness

amount ($697,914) and a July 2010 estimate of the value

of the property ($1,086,000), the resulting equity in the house

would have been $388,086 and the estimated net equity, after

estimated costs of sale, $215,466.33. The government concluded

that the resolution of the error was to give Sheth

“credit for half the net equity of the property, relating back to

No. 17-2741 7

2011 and assuming a sale for its fully appraised value, with

reasonable closing costs, and the net proceeds divided with

Anita Sheth who had a half-interest in the property.” Govt’s

Supp. Brief in Support of its Motion to Ratify Turnover Order,

R. 294 at 4. The United States calculated that amount to be

$107,773. Sheth declined the offer.

At a hearing about how much credit Sheth should receive

for the residence, Sheth did not contest the appraisal value in

July 2010, but argued that the court instead should have used

the 2015 sale price when his former wife sold the property.

This would have given him a $510,000 credit rather than the

$107,733 he received. The government argued that the 2010

appraised value was the more appropriate date as it was

closer to when the United States relinquished the property to

Anita Sheth, or, if it had not relinquished the property, approximately

when it would have sold the property. The court

agreed with the government. Sheth appeals both holdings.

II.

A. Interest on the Harris Bank accounts

The arguments have unnecessarily complicated a simple

contractual matter. A plea agreement is, of course, nothing

more than a contract between two parties—the defendant and

the government. United States v. Brown, 779 F.3d 486, 492 (7th

Cir. 2015). To oversimplify (for just a moment until we address

the details), we boil Sheth’s argument on this issue

down to its elements in the following hypothetical (hypothetical

A): Suppose the government suspected that a defendant

had committed a crime and seized his bank account containing

$100 until such time as a court could make its final determination.

In the meantime, the defendant and the

8 No. 17-2741

government entered into an agreement that stated as follows:

should the court find the defendant guilty and impose any

kind of financial penalty, the government will take whatever

is in that bank account at the time of forfeiture and apply it to

the financial penalty. At the time the court made the determination

of guilt, imposed the financial penalty, and forfeited

the bank account to the government, the account had earned

interest and now contained $110. According to the terms of

the agreement, the government would take whatever was in

that account—now $110—and apply it to the financial penalty

imposed.

Sheth’s case is no different. The government has turned

the argument into one about whether it is required to pay interest

on seized funds. But that question is not presented on

these facts. The question is not whether the government must

keep forfeited funds in an interest-bearing account (or

whether the government is otherwise responsible for interest

on forfeited funds it holds). Rather, the question is whether

already-accrued interest that has been forfeited to the government

must be credited toward a restitution judgment where

the government previously has agreed to credit all forfeited

funds toward the restitution judgment. We need not decide

the broader issue because, in this case, the forfeited funds

were, in fact, in an interest-bearing account. Consequently, at

the time of forfeiture, there was approximately $225,000 more

in the account that had to be applied to the restitution

amount. The government, by its own agreement, was required

to take whatever was in the account at the time of the

forfeiture and apply it to the amount that Sheth owed in financial

penalty.

No. 17-2741 9

The government’s primary argument is that because of the

doctrine of sovereign immunity, the United States is not required

to pay interest, in the absence of a statute or an express

provision of a contract. Again, we need not address this assertion

one way or the other, as it is irrelevant to this case. To

understand the difference between the issue the government

argues and the facts of the current case, we compare the following

hypothetical B to the one above: Suppose the government

suspected that a defendant had committed a crime and

seized $100 in cash until such time as a court could make its

determination of guilt or innocence. The agents representing

the United States took the $100 and placed it in a safe. In the

meantime, the defendant and the government entered into an

agreement that stated as follows: should the court find the defendant

guilty and impose any kind of financial penalty, the

government will take whatever cash it has seized and apply

it to the financial penalty. At the time the court made the determination

of guilt, imposed the financial penalty, and forfeited

the funds, the government had $100 in a safe that it was

required to put toward any financial penalty imposed. Pursuant

to the agreement, the government was not required to pay

interest.5 All of the government’s arguments are geared toward

the type of scenario in hypothetical B, but those arguments

simply do not address the facts presented in this case.

5 In reality, regulations and guidelines require that the government deposit

seized assets into the Seized Asset Deposit Fund where it is held until

resolution of the forfeiture proceeding and then deposited in the Asset

Forfeiture Fund. See 28 C.F.R. § 8.5 (2012); U.S. Dept. of Justice, United

States Attorney’s Manual 9-111.600 (2018); U.S. Dept. of Justice, Office of

the Inspector General, Audit of the Assets Forfeiture Fund and Seized Asset

Deposit Fund Annual Financial Statements Fiscal Year 2018.

10 No. 17-2741

In this case, the plea agreement and forfeiture order govern

the distribution of the interest. The government, by the

plain language of the plea agreement, agreed to take all forfeited

funds and apply them to any restitution amount. (Recall

that the agreements stated, “it is agreed by the parties that

any payments made in satisfaction of the forfeiture judgment

shall be credited to any outstanding restitution judgment.”

Plea Agreement, R. 35 at 15. The order of forfeiture, relying

on the plea agreement between Sheth and the government,

states that “all right, title, and interest of defendant Sushil

Sheth in the” funds from the four Harris Bank accounts “is

hereby forfeit[ed] to the United States of America.” Preliminary

Order of Forfeiture, R. 66 at 5. To put this all together

and summarize: (1) The parties agreed that “all right, title and

interest” in the Harris Bank funds at issue would be forfeited

to the government. (2) The parties agreed that any forfeited

funds would be applied to the restitution amount. Therefore,

(3) all of the money in the Harris Bank funds had to be applied

to the restitution amount. By the time the court ordered the

forfeiture and “all right, title, and interest” in those Harris

Bank funds was forfeited to and transferred to the United

States, those accounts included $225,000 in accrued interest

which had to be applied to the restitution amount.

Any other solution, of course, would not only violate the

agreements, but would be nonsensical. The government did

not, after all, return the $225,000 in interest to Sheth, or to Harris

Bank, or donate it to charity. It took that interest along with

the $6.5 million in principal and placed it into its own coffers—

coffers that it uses to pay restitution to victims of crime.6

6 The United States Marshals Service held the funds until July 2013 when

it turned those funds over to the Clerk of the Court for disbursement to

No. 17-2741 11

And that was the logical action. The government cites no authority

to state that it was entitled to keep the interest as some

kind of windfall. It was entitled to keep the interest because

the interest was forfeited along with the principal assets. The

usual and general rule is that any interest on an interpleaded

and deposited fund follows the principal and is to be allocated

to those who are ultimately to be the owners of that

principal.” Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, 162 (1980); See also Cerajeski v. Zoeller, 735 F.3d 577,

580 (7th Cir. 2013) (“If you own an apple tree, you own the

apples; and if you own a deposit account that pays interest,

you own the interest, whether or not state law calls interest

property.”); United States v. $277,000 U.S. Currency, 69 F.3d

1491, 1496 (9th Cir. 1995) (“If the government seized, for example,

a pregnant cow and was ultimately found not to be entitled

to the cow after it had given birth, it could hardly be

contended that the government had fulfilled its duty by returning

the now-barren cow, but retaining the calf.”)

We also need not delve into the realm of what would have

happened to the interest if Sheth had been found not guilty at

trial and been entitled to have the accounts returned. We can

save that discussion for a case involving those facts. See

United States v. Rand Motors, 305 F.3d 770, 774 (7th Cir. 2002)

(“We will not consider whether in the abstract the United

States has some duty to pay interest on seized funds that are

later returned.”). What matters in these cases is the

the non-federal victims, and to the Department of Justice Debt Accounting

and Operations Group for disbursement to the government victims. The

Government’s Motion for an Order Directing the U.S. Marshals Service to

Release Funds to Partially Satisfy the Restitution Judgment, R. 199; Order,

R. 201.

12 No. 17-2741

contractual agreement between the parties. Id. And in this

case, the government agreed to take the forfeited funds and

credit them toward the restitution judgment. Those funds included

$225,000 in interest.

The error below appears to have resulted from the district

court’s misunderstanding about the nature of the funds associated

with the Harris Bank accounts. In the initial case below,

Sheth argued about miscalculations and inequities in the calculation

of many different assets. The specific details about

the Harris Bank accounts may have gotten lost in the fray in a

case where so many assets, accounts, and funds were at issue.

Below, Sheth simply had argued that he was “entitled to interest

earned on” the Harris Bank accounts “from 2007 until

2010.” Response to Govt’s Motion to Ratify Turnover Orders,

R. 266 at 1. The government maintained its refusal to credit

Sheth with interest on these accounts. It seems that it may not

have been clear to the district court that the interest on those

accounts already existed. The district court, in its opinion, did

not seem to be aware that the Harris Bank funds were being

held in an interest-bearing account. The district court judge

stated that she was “uncertain why the United States Marshal

Service would forgo interest on funds within its possession.”

D. Ct. Op. at 11 (R. 282 at 11). The court held that Sheth was

not entitled to credit for such interest because, the district

court explained, “there is no provision in the plea agreement

for paying Sheth post-seizure interest.” Id. at 12. The court

juxtaposed the Harris Bank accounts with other accounts that

had “in fact earned” interest—implying that the court thought

that these Harris Bank accounts had not. Id. (emphasis in original).

No. 17-2741 13

The district court’s statement that “[t]here is no provision

in the plea agreement for paying Sheth post-seizure interest,”

(R. 282 at 12), demonstrates that it was considering facts not

relevant to resolution of the matter before it. The court seems

to be describing a hypothetical scenario C: Suppose the government

suspected that a defendant had committed a crime

and seized $100 in cash until such time as a court could make

its determination of guilt or innocence. The agents representing

the United States took the $100 and placed it in a safe. In

the meantime, the defendant and the government entered

into an agreement that stated as follows: should the court find

the defendant guilty and impose any kind of financial penalty,

the government will take whatever funds it seized and

apply it to the financial penalty. In the meantime, during the

pendency of the case, the government will hold the funds in an interest-

bearing account. According to the terms of the agreement,

the government would have been required to place the

$100 in an interest-bearing account, and, at the time of forfeiture,

take whatever was in that account, interest and all—now

$110—and apply it to the financial penalty imposed. This is

the scenario that existed in United States v. Kingsley, 851 F.2d

16 (1st Cir. 1988), to which both parties turn. In Kingsley, the

district court specifically ordered the government to place the

funds in an interest-bearing account and the government

failed to do so. Id. at 18. The court in Kingsley noted that the

defendant had relied on the court’s order requiring interest

when entering his plea agreement, and therefore the court

held the government to the terms of its contractual agreement.

This case is not about resolving whether the government

was required by law or agreement to hold funds in an

interest-bearing account. It is undisputed that those funds

were indeed held in an interest-bearing account and earned

14 No. 17-2741

$225,000. Our analysis begins with a recognition of this fact

(one that the district court may have misunderstood) and

moves forward from there.

Once the proper facts are acknowledged, and extraneous

scenarios are omitted, the resolution is simple. The government

agreed to apply all of the forfeited funds in the Harris

Bank accounts to the restitution amount. That amount included

the already-earned interest. We need not consider

what would have occurred had the interest not been in an interest-

bearing account, or had the government been required

to return the assets, or any other scenario not associated with

the facts of this case. Sheth is merely asking the court to take

all of the money it received from the forfeited accounts, at the

time it was forfeited, and put it toward Sheth’s restitution

amount as was the agreement of the parties.

The district court’s misunderstanding that the funds had

not already earned interest (and one that is understandable

given the number of accounts and funds of which the court

had to keep track) is further highlighted by its differing treatment

of funds located in Oppenheimer, Bright Start, and First

Bank accounts. Those funds also earned interest between the

time they were first frozen by the government and the time

they were forfeited by court order, and the district court applied

that earned interest to the amount of restitution.7 The

United States gave Sheth credit for the interest noting, “With

regard to these funds, Sheth was credited with whatever interest

accrued on those funds while at the respective third-

7 Rather than seize the funds in the Oppenheimer, Bright Start, and First

Bank accounts, on February 26, 2008, the government obtained a restraining

order freezing those accounts pending resolution of the case.

No. 17-2741 15

party depository institution.” Government’s Memorandum

Supporting its Motion to Ratify Turnover Orders, R. 260 at 8.

Moreover, the district court, when explaining the discrepancy

between the handling of the interest for the Harris Account

funds and these other funds stated, “the government credited

Sheth with the interest in fact earned on the Oppenheimer,

Bright Start and First Bank accounts between 2007 and 2010

before they were actually turned over to the Marshals.” D. Ct.

at 12 (R. 282 at 12) (emphasis in original). The district court

seemed to think that the interest earned in the Oppenheimer,

Bright Start, and First Bank accounts could be applied to the

restitution amount because it had been “in fact earned,” but

that no interest could be applied for the Harris bank accounts

because the “United States Marshal service [had] forgo[ne] interest”

on those funds. Id. at 11. This was simply an oversight,

and one that is understandable given the complexity and

number of parts in play in this case. The Harris Bank funds

had earned interest just as the Oppenheimer, Bright Start, and

First Bank accounts had. This interest was forfeited to the government,

just as it was for the Oppenheimer, Bright Start, and

First Bank accounts, and should have been applied to the restitution

amount, just as it was for the other funds.

It is not entirely clear whether the district court’s error was

one of fact or law. Did the district court not know that the

Harris Bank accounts had earned interest? Or did the district

court make a legal error about when to value accounts—

which would ordinarily be at the date of the actual forfeiture

when the government takes possession of the funds, rather

than the date of the preliminary seizure. Title to forfeited

property relates back to the United States from the time of the

commission of the crime, but this reversion occurs only after

forfeiture is effected, which, in the criminal context, occurs

16 No. 17-2741

only after a conviction and determination that the assets were

the product of illicit activities. Kingsley, 851 F.2d at 19–20; see

also United States v. De Ortiz, 910 F.2d 376, 379–80 (7th Cir.

1990). In the meantime, seized property is in a kind of limbo—

belonging totally to neither the defendant nor the government

until the underlying criminal matter is finally concluded.

Kingsley, 851 F.2d at 20.

In this case, we need not decide if the error was factual or

legal. Under either standard of review, the district court’s determination

on this issue cannot stand. See United States v.

Adame-Hernandez, 763 F.3d 818, 827 (7th Cir. 2014) (The Court

of Appeals reviews the district court’s interpretation of a plea

agreement de novo.); Soc'y of Lloyd's v. Estate of McMurray, 274

F.3d 1133, 1135 (7th Cir. 2001) (The Court of Appeals reviews

the final disposition of a turnover order on questions of law

de novo.); United States v. Collins, 503 F.3d 616, 618 (7th Cir.

2007) (factual determinations about plea agreements, “like

factual determinations in general, should be reviewed for

clear error.”). The district court should have credited Sheth

for the interest earned on the Harris Bank funds

B. The Real Property

The resolution over the value of the real property on

Crown Court in Burr Ridge is also not inherently a complex

matter but muddied by a few errors and misunderstandings.

The first occurred when the United States erred in assessing

the value of the family residence. The United States failed to

include a $900,000 payment toward the mortgage when it calculated

the value of the residence. In other words, the government

initially presented to the court the value of the residence

as follows:

No. 17-2741 17

2010 appraised value $1,086,000

mortgage debt ($1,559,50)

Net equity ($473,000)

In reality, the value of the residence was as follows:

2010 appraised value $1,086,000

mortgage debt ($697,915)

costs and expenses ($172,619)

Net equity $215,466

During proceedings surrounding the turnover order, the

United States conceded its error and suggested that the appropriate

resolution was to give Sheth “credit for half the net

equity of the property, relating back to 2011 and assuming a

sale for its fully appraised value, with reasonable closing

costs, and the net proceeds divided with Anita Sheth who had

a half-interest in the property.” R. 294 at 8–9 (emphasis in

original). The United States calculated that amount to be half

of $215,466 or $107,773. Sheth declined the offer. The court

agreed with the government, stating that “Whatever the value

of it then [when it was conveyed to Mrs. Sheth] … net of the

mortgage obligation is the amount that should be properly—

half of that should be properly credited to Dr. Sheth. … I think

the way the government treated this property makes perfect

sense under the circumstances.” Tr. 8/21/17, R. 303 at 7.

At the turnover order hearing in the district court regarding

the amount of credit Sheth should receive for the residence,

Sheth did not contest the accuracy of the 2010 appraisal,

but rather argued that the court should have used the

price the property fetched on the market in 2015 when his former

wife sold the property for approximately $1.7 million.

This would have allowed him to claim a $510,000 credit rather

18 No. 17-2741

than the $107,733. The government argued that the 2010 appraised

value was the more appropriate date as it was closer

to when the United States relinquished the property to Anita

Sheth (only one year before the transfer, as opposed to four

years after), or, if it had not relinquished the property, approximately

when it would have sold the property. The government

argued that it would be inappropriate to look at the

value of the house four years later, after the real estate market

had recovered, and long after the United States would have

liquidated it.

On appeal, Sheth makes a different argument. Rather than

arguing that the court should have used the 2015 sale price,

he argues that the court should have used a 2011 valuation of

the property rather than a 2010 valuation. The property was

appraised in July 2010, and it was relinquished to Anita Sheth

in June 2011. Sheth is technically correct that the government

proposed giving Sheth “credit for half the net equity of the

property, relating back to 2011.” Govt’s Supp. Brief in Support

of its Motion to Ratify Turnover Orders, R. 294 at 8–9, 10 (emphasis

ours). And the court agreed with the government’s

proposal that Sheth would get credit for half of the value of

the property when it was conveyed back to Anita Sheth. Tr.

8/21/17, R. 303 at 7.

There are two problems with Sheth’s argument on appeal.

First, Sheth never raised it in the district court. There he argued

only that the court should have used the 2015 sale price.

This argument, therefore, has been forfeited.8 A party forfeits

8 Once again, see Sansone v. Brennan, 917 F.3d 975, 983 (7th Cir. 2019), for

a discussion of the difference between waiver and forfeiture, the latter of

which is at issue here.

No. 17-2741 19

an argument by failing to raise it below, or by raising it in a

perfunctory or general manner. Sansone v. Brennan, 917 F.3d

975, 983 (7th Cir. 2019).

Moreover, Sheth, who had the burden of proof, never offered

an appraised value of the residence in 2011. Sheth cites

the record to show that the mortgage indebtedness in July

2010 was $697,914 (R. 289-1 at 4); (R. 294 at 4); in December

2010 it was $690, 282 (R. 289-1 at 4); and it was only $667,933

as of August 2012. (R. 294 at 9). See Defendant-Appellant’s

Opening Brief at 33. Interestingly, even now Sheth does not

provide an accurate valuation for July 2011, when the property

was relinquished to Anita Sheth.

Even had Sheth not forfeited this argument nor dropped

the ball on pointing to evidence in the record of a 2011 valuation,

we would still not find error in the district court’s application

of the 2010 appraisal of the residence. The evaluation

of real property can be complicated. It is particularly complicated

in this case, because the government did not actually

have a chance to sell the property—the ultimate evidence of

what the property is worth. Instead, falsely believing that it

was underwater, it relinquished the property to Sheth’s former

wife. This makes it difficult to ascertain at what date and

amount the court should have valued the property. The value

of the residence in 2010, when the government had it appraised,

was a reasonable estimate of its value one year later,

in 2011.

20 No. 17-2741

We remand to the district court so that it may consider the

value of the forfeited interest on the relevant Harris Bank accounts

as credit toward Sheth’s outstanding restitution judgment.

We affirm the district court’s holding as to the residence

on Crown Point in Burr Ridge.

AFFIRMED IN PART, REVERSED IN PART.