                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-1249
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

LESLIE J. HAMILTON,
                                           Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 03-C-170—J. P. Stadtmueller, Judge.
                        ____________
     ARGUED APRIL 18, 2007—DECIDED AUGUST 29, 2007
                        ____________


  Before POSNER, COFFEY, and FLAUM, Circuit Judges.
  POSNER, Circuit Judge. A jury found the defendant
guilty of multiple counts of mail and wire fraud in further-
ance of a classic Ponzi scheme that swindled investors out
of $14 million. The judge sentenced him to 300 months. The
defendant complains about a jury instruction proposed
by the government and given by the judge which states
that “if money or property is obtained through knowingly
false representations, the scheme to defraud is established,
regardless of whether the defendant hoped, intended, or
even expected that the victims would eventually be
satisfied.” He contends that although this is a Seventh
2                                                 No. 06-1249

Circuit pattern instruction, it is erroneous in light of our
decision in United States v. Bessesen, 445 F.2d 463 (7th Cir.
1971).
  The defendant did not object to the giving of the instruc-
tion, and the government says that by not objecting he
waived any objection to it. He replies that, no, it was just a
forfeiture—an accidental blunder—leaving him free to
argue on appeal that the giving of the instruction was a
plain error. If it was waiver—the intentional relinquish-
ment of a known right—rather than forfeiture, he cannot
challenge it even as plain error. United States v. Olana, 507
U.S. 725, 733 (1993); United States v. Babul, 476 F.3d 498, 499
(7th Cir. 2007). Otherwise forfeiture and waiver would
be equated.
   The judge had ordered the parties to prepare jointly a
pretrial order that would contain proposed jury instruc-
tions and to indicate in the order any objections to the
other side’s proposed instructions. Each party objected
to some of the other party’s proposals but, as we said, the
defendant did not object to the government’s proposed
instruction on intent. The government says the “instruction
was jointly submitted by the parties,” but this is misleading
and indeed disingenuous. The instruction appears in a
section of the pretrial report captioned “Government’s
Requested Jury Instructions.” Had it been one of the
defendant’s requested instructions, any objection to giving
it would indeed have been waived, e.g., United States v.
Bennafield, 287 F.3d 320, 325 (4th Cir. 2002); United States v.
Giovanelli, 464 F.3d 346, 351 (2d Cir. 2006) (per curiam);
Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998)—it
would be a case of “invited error,” as the cases say. And
likewise if it had been the substantial equivalent of the
instruction that was given, United States v. Muskovesky, 863
No. 06-1249                                                  3

F.2d 1319, 1329 (7th Cir. 1988), or if the defendant had
agreed to the instruction or it had appeared in a section of
the pretrial report captioned “Instructions Agreed to by
Both Parties” or some equivalent formulation. United States
v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005). But a
failure to object, which for all we know was inadver-
tent—there were nearly fifty pages of instructions, and
while the judge invited objections he didn’t ask the defen-
dant’s lawyer whether the lawyer agreed to the instruc-
tions to which he did not object, or ask the lawyer
specifically about the intent instruction—is not an “inten-
tional relinquishment of a known right,” the canonical
definition of waiver. E.g., United States v. Olana, supra, 507
U.S. at 733; United States v. Woods, 301 F.3d 556, 560 (7th
Cir. 2002).
  The government asks us to pick through the record
with a fine-tooth comb and infer that the defendant’s
lawyer must have thought the instruction okay, in which
event his failure to object would be deliberate and there-
fore a waiver. United States v. Salerno, 108 F.3d 730, 738-40
(7th Cir. 1999); Governor of the Virgin Islands v. Rosa, 399
F.3d 283, 291 (3d Cir. 2005); United States v. Perez, 116
F.3d 840, 845 (9th Cir. 1997). But we cannot find any
indication of that, and doubts should be resolved against a
finding of waiver, United States ex rel. Atkinson v. Pennsylva-
nia Shipbuilding Co., 473 F.3d 506, 517 (3d Cir. 2007); Texaco
Exploration & Production Co. v. AmClyde Engineered Products
Co., 243 F.3d 906, 911 (5th Cir. 2001); Cabinet Vision v.
Cabnetware, 129 F.3d 595, 601 (Fed. Cir. 1997), for by
precluding judicial review it invites a challenge that the
lawyer’s failure to object constituted ineffective assistance
of counsel. Here, for example, we can head off that chal-
lenge by noting once we get past the waiver question that
4                                                No. 06-1249

there is no basis for such a challenge because there was no
error (let alone plain error) in the instruction.
   If you embezzle from your employer you are not ex-
cused just because you had an honest intention of replac-
ing the money, maybe with interest—just because you
embezzled the money to gamble and were honestly
convinced that you were on a lucky streak and would
win enough to cover the defalcation comfortably. United
States v. Radziszewski, 474 F.3d 480, 485 (7th Cir. 2007);
United States v. Daniel, 329 F.3d 480, 488 (6th Cir. 2003);
United States v. Karro, 257 F.3d 112, 118 (2d Cir. 2001). You
imposed a risk of loss on the employer—deliberately,
fraudulently, and without a shadow of excuse or just-
ification—and that is harm enough to trigger criminal
liability even though in the rare case the harm proves
harmless because the money is replaced.
  The same principle that covers embezzlement covers
fraud. But against a mountain of authority in this and other
circuits thus approving the intent instruction given in this
case, or its equivalent, e.g., United States v. Mabrook, 301
F.3d 503, 509 (7th Cir. 2002); United States v. Brandon, 50
F.3d 464, 468 (7th Cir. 1995); United States v. Daniel, supra,
329 F.3d at 490; United States v. Benny, 786 F.2d 1410, 1417
(9th Cir. 1986), the defendant has only the lone case of
United States v. Bessesen, supra, to cite. The defendants in
that case were accused of check kiting. “Taking ad-
vantage of the fact that it takes several days to clear checks
between banks in different cities and the fact that often
banks will honor checks drawn against uncollected funds
and accept overdrafts for a period of time, the defendants
drew checks upon one bank where there were no or
insufficient funds in favor of another bank; before the
checks reached the drawee bank for payment other checks
No. 06-1249                                                5

were drawn against another bank where there were no
or insufficient funds and deposited in the drawee bank.”
445 F.2d at 466. But there was evidence that the defendants
expected a third person, who had covered their over-
drafts in the past, to cover these overdrafts, and the court
held that the defendants were entitled to an instruction that
would present this theory to the jury. The decision is
distinguishable from the embezzlement and fraud cases
that approve the challenged instruction and from this
case as well. If the defendants in Bessesen thought their
overdrafts would be covered they weren’t intending to
separate the banks from any of the banks’ money, even—as
in the embezzlement case that we put and conceivably in
this case as well—temporarily. In this case persons were
persuaded by the defendant’s fraudulent representations
to give him money, and so he got money from them by
fraud even if he intended to pay them back eventually,
whereas in Bessesen the defendants claimed that they
didn’t intend to take any money from the banks, even
temporarily.
  Bessesen is in any event inconsistent with the later cases
in this and the other circuits, which emphasize the risk of
loss that a fraud creates. Even if the Bessesen defendants’
version of the facts were accepted, they put the banks at
risk of loss and an intention to do that by deceptive means
(by writing checks back and forth between the banks, the
defendants were concealing their overdrafts) is all that
is required to prove mail or wire fraud. United States v.
Morales, 978 F.2d 650, 653 (11th Cir. 1992). To avoid future
attempts to rely on Bessesen, we hereby overrule it. The
opinion has therefore been circulated to the full court in
advance of publication, in accordance with 7th Cir. R. 40(e).
No judge in regular active service voted to hear the case
en banc.
6                                          No. 06-1249

                                            AFFIRMED.
A true Copy:
      Teste:

                     _____________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




               USCA-02-C-0072—8-29-07
