United States of America v. Jan R. Kowalski

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2374
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JAN R. K OWALSKI ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cr-00226-2 — Virginia M. Kendall, Judge.
____________________
A RGUED A PRIL 3, 2024 — DECIDED J UNE 6, 2024
____________________
Before ST. EVE, K IRSCH , and LEE, Circuit Judges.
ST. EVE, Circuit Judge. Jan Kowalski used and abused her
position as an attorney to shield her brother’s assets in bank-
ruptcy, hiding approximately $357,000 in her attorney trust
account. She then obfuscated the concealment by invoking at-
torney-client privilege, lying under oath, and fabricating doc-
uments. She now appeals her within-Guidelines sentence of
37 months’ imprisonment, arguing that the district court
erred in applying two enhancements in calculating her

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2 No. 23-2374
Sentencing Guidelines range: the § 2B1.1(b)(10)(C) sophisti-
cated-means enhancement, and the § 3B1.3 abuse of position
of trust enhancement. She also argues her sentence is substan-
tively unreasonable. We affirm.
I. Background
A. Factual Background
Jan Kowalski, an Illinois attorney, came to her brother
Robert Kowalski’s aid after he filed for bankruptcy in 2018—
first concealing Robert’s assets and later lying to the bank-
ruptcy court.
1. Concealing Assets
Kowalski’s involvement in Robert’s bankruptcy proceed-
ings began around the summer of 2018. Using her Interest on
Lawyers Trust Account (“IOLTA”)—a trust account designed
for lawyers to hold clients’ and third parties’ property sepa-
rate from their own assets—Kowalski concealed approxi-
mately $357,000 of her brother’s assets from his creditors and
the bankruptcy trustee.
Kowalski accomplished this feat through dozens of IOLTA
transactions. Between August and October 2018, she depos-
ited around $350,000 in cashier’s checks that almost always
listed Robert as both remitter and payee, and thousands more
in checks and money orders payable to either Robert or one
of his business entities for “rent.” She also withdrew thou-
sands of dollars to purchase property on two occasions. On
the first, she withdrew around $2,500 to use as earnest money
in a failed attempt to purchase property in the name of a ficti-
tious trust of which Robert was the beneficiary. And on the
second, she withdrew around $75,000 to successfully pur-
chase property in Robert’s name. Later, she used yet more

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No. 23-2374 3
funds from her IOLTA to purchase another $350,000 of cash-
ier’s checks payable to or for the benefit of Robert. Over the
next several months, she redeposited around $325,000 into
her IOLTA, and then withdrew another $240,000 after that.
2. Bankruptcy Proceeding Misconduct
After entering an appearance on Robert’s behalf in the
bankruptcy proceedings in November 2018, Kowalski took
steps to hide her concealment of Robert’s assets.
Kowalski’s deceitful activities before the bankruptcy court
were numerous. She began with an array of written and ver-
bal false statements. In a motion to quash subpoenas seeking
records from her IOLTA, for example, she falsely represented
that the IOLTA funds “represent[ed] both her earned fees, set-
tlement funds, and her clients’ security retainers,” and further
invoked attorney-client privilege to insist that “[a]ny financial
transaction between … [her] and her clients” was protected.
She reiterated similar false statements in a later filing.
Kowalski continued her false statements in a hearing be-
fore the bankruptcy court. Under oath, she testified that the
cashier’s checks were legitimate attorney’s fees stemming
from agreements with Robert’s business entities; that the
withdrawn-then-redeposited cashier’s checks were loans she
intended to, but did not, make to Robert; and that she with-
drew more than $200,000 from her IOLTA as part of her regu-
lar practice of zeroing out the account at the end of the year.
Then, compounding this deception, Kowalski introduced
exhibits purporting to be IOLTA client ledgers and retention
agreements to support her false statements. She later admit-
ted to fabricating these documents.

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4 No. 23-2374
In subsequent proceedings, the bankruptcy trustee con-
fronted Kowalski with the inconsistencies between her per-
sonal bank records and earlier testimony. Again under oath,
Kowalski testified that she gave the withdrawn IOLTA funds
to an unidentified “client” or “business partner.” She refused
to identify the individual, and the district court placed her in
contempt. She ultimately named Lawrence Lis several weeks
later. Lis, however, denied ever receiving funds from Kow-
alski.
Kowalski failed to appear at a bankruptcy court hearing
the next month. Her attorney informed the court that Kow-
alski was at her law office with the police, filing a report that
money had been stolen from her office.
Finally, in a hearing a few months later, Kowalski again
lied under oath, insisting she had given the withdrawn funds
to Lis. But this time, she added that Lis later returned the
money, which she put in a lockbox in her office. She testified
that she later discovered the money had been stolen, specu-
lating that “it was agents of the trustee.” And once more, she
insisted that the money did not belong to the trustee but was
instead money she had “earned.”
B. Procedural Background
A grand jury charged Kowalski and several others in a 37-
count indictment. For her part, Kowalski faced four counts of
bankruptcy fraud in violation of 18 U.S.C. § 157(1)–(3), and
one count of concealing assets from the bankruptcy trustee in
violation of 18 U.S.C. § 152(1). She pleaded guilty only to the
concealing assets charge.
The United States Probation Office prepared a presentence
investigation report, which recommended applying four

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No. 23-2374 5
sentencing enhancements. Two are relevant here: a two-level
enhancement under U.S.S.G. § 2B1.1(b)(10)(C), on the ground
that Kowalski employed “sophisticated means” in commit-
ting the offense, and a two-level enhancement under U.S.S.G.
§ 3B1.3, on the ground that she abused a position of trust or
used a special skill to facilitate or conceal the offense.
Kowalski objected to both enhancements. As to the former,
she argued that her conduct was neither particularly complex
nor intricate, and that she did not know her brother’s trusts
were fictitious. As to the latter, she argued that she had no
bankruptcy law expertise and thus did not use any special
skills. The district court overruled the objections. It found
Kowalski employed sophisticated means by fabricating false
client ledgers and retention agreements and providing false
testimony to support those documents. And it found that
Kowalski abused a position of trust by relying on her status
and credibility as an attorney to cover up the offense
Based on Kowalski’s offense level of 21 and criminal his-
tory category of I, the court calculated a Sentencing Guide-
lines range of 37 to 46 months’ imprisonment. It ultimately
imposed a 37-month sentence, which Kowalski now appeals.
II. Analysis
Kowalski lodges three challenges to her sentence: two pro-
cedural and one substantive.
When a defendant challenges a sentence both procedur-
ally and substantively, “[w]e review a district court’s sentenc-
ing decision in two steps.” United States v. Oregon, 58 F.4th
298, 301 (7th Cir. 2023). First, we assess de novo whether the
district court committed any “significant procedural error,”
including whether it correctly calculated the applicable

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6 No. 23-2374
Guidelines range. United States v. Davis, 43 F.4th 683, 687 (7th
Cir. 2022) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Second, if the sentence is procedurally sound, we “review the
substantive reasonableness of [the] sentence under an abuse
of discretion standard.” United States v. Walsh, 47 F.4th 491,
496 (7th Cir. 2022).
A. Procedural Challenges
We begin with Kowalski’s procedural challenges. She ar-
gues that the district court erred by improperly applying the
§§ 2B1.1(b)(10)(C) and 3B1.3 enhancements.
In assessing these challenges, we review the district
court’s underlying factual findings for clear error, but review
de novo whether those findings “adequately support the im-
position of the enhancement[s].” United States v. Barker, 80
F.4th 827, 834 (7th Cir. 2023) (quoting United States v. Brown,
843 F.3d 738, 742 (7th Cir. 2016)). A finding of fact is clearly
erroneous only when, after considering all the evidence, we
are “left with the definite and firm conviction that a mistake
has been made.” United States v. Dickerson, 42 F.4th 799, 804
(7th Cir. 2022) (quoting United States v. Cruz-Rea, 626 F.3d 929,
938 (7th Cir. 2010)).
1. Sophisticated-Means Enhancement
The sophisticated-means enhancement applies where the
offense “involved sophisticated means and the defendant in-
tentionally engaged in or caused the conduct constituting so-
phisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). “‘[S]ophisti-
cated means’ means especially complex or especially intricate
offense conduct pertaining to the execution or concealment of
an offense.” § 2B1.1 cmt. n.9(B). The enhancement “does not
require a brilliant scheme, just one that displays a greater level

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No. 23-2374 7
of planning or concealment than the usual fraud case.” United
States v. Lundberg, 990 F.3d 1087, 1097 (7th Cir. 2021) (cleaned
up).
Kowalski argues that merely using her own bank account
to conceal her brother’s assets was unsophisticated and “on
par with a typical bankruptcy fraud.” The district court did
not err in rejecting this argument. Indeed, Kowalski’s scheme
surely “exceeded the garden-variety scheme” to conceal
bankruptcy assets, United States v. Friedman, 971 F.3d 700, 716
(7th Cir. 2020), which requires only that the defendant “know-
ingly and fraudulently conceal[] from a … trustee … any
property belonging to the estate of a debtor,” see 18 U.S.C.
§ 152(1). Kowalski deposited and then withdrew dozens of
cashier’s checks from her IOLTA to conceal huge sums of
money from the bankruptcy trustee. She then attempted to
use these funds to purchase property in the name of a ficti-
tious trust benefiting her brother. This conduct alone justifies
the enhancement. See § 2B1.1 cmt. n.9(B) (“[H]iding assets or
transactions … through the use of fictitious entities … ordi-
narily indicates sophisticated means.”).
Yet Kowalski’s conduct went much further. She concocted
an elaborate and continually evolving story to cover up her
activity: invoking the attorney-client privilege to shield her
IOLTA funds from discovery, testifying falsely in multiple
hearings, and fabricating documents to support her false tes-
timony. She then insisted that she gave $250,000 to an uniden-
tified individual, but later that the money had been stolen.
Together, these facts amply support the finding that Kow-
alski employed sophisticated means to conceal her brother’s
assets. See Lundberg, 990 F.3d at 1098 (finding the enhance-
ment proper where the defendant falsified tax forms to

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8 No. 23-2374
support a lease application); Friedman, 971 F.3d at 717 (same
where the defendant created “phony corporate resolution
documents”); United States v. Ghaddar, 678 F.3d 600, 603 (7th
Cir. 2012) (same where the defendant used “elaborate tactics
to conceal the source of … money”).
It makes no difference that Kowalski did not—as in some
of our cases—receive a pecuniary benefit, conceal the source
of the cashier’s checks, disguise herself, or use foreign bank
accounts. These are simply examples of tactics that may jus-
tify the sophisticated-means enhancement, but they are not
necessary to its application. Rather, the “essence of the defini-
tion” of “sophisticated means” is “merely deliberate steps
taken to make the offense … difficult to detect.” United States
v. O’Doherty, 643 F.3d 209, 220 (7th Cir. 2011) (quoting United
States v. Kontny, 238 F.3d 815, 821 (7th Cir. 2001)). Kowalski
layered deceit upon deceit: she obscured the source of the
money by continually shifting it in and out of her IOLTA and
attempting to purchase property, and covered up that activity
with a series of elaborate false statements and documents.
The district court did not err in applying the sophisticated-
means enhancement.
2. Abuse of a Position of Trust Enhancement
Section 3B1.3 provides for a two-level enhancement “[i]f
the defendant abused a position of public or private trust, or
used a special skill, in a manner that significantly facilitated
the commission or concealment of the offense.” U.S.S.G.
§ 3B1.3. “Public or private trust” refers to a position “charac-
terized by professional or managerial discretion,” meaning
“substantial discretionary judgment that is ordinarily given
considerable deference.” § 3B1. cmt. n.1. For the enhancement

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No. 23-2374 9
to apply, “the position of public or private trust must have
contributed in some significant way to facilitating the com-
mission or concealment of the offense (e.g., by making the de-
tection of the offense or the defendant’s responsibility for the
offense more difficult).” Id. In short, the enhancement is ap-
propriate if the defendant (1) occupied a position of trust, and
(2) abused the position in a manner that significantly facili-
tated the offense. United States v. Gellene, 182 F.3d 578, 596 (7th
Cir. 1999).
We have little trouble concluding both criteria are satisfied
here. Kowalski, as a lawyer representing her brother before
the bankruptcy court, occupied a position of public trust. See
id.; United States v. Harrington, 114 F.3d 517, 519 (5th Cir. 1997)
(“The integrity of our judicial system inextricably is inter-
twined with the integrity of our trial lawyers. Consequently,
it cannot be gainsaid that lawyers occupy a position of public
trust.”). Indeed, we already held as much in Gellene, 182 F.3d
at 596–97 (holding that “a bankruptcy lawyer representing a
large corporate client in bankruptcy.… held a position of con-
siderable professional discretion” and thus “occupied a posi-
tion of trust”). That Kowalski was not specifically a bankruptcy
lawyer is of no moment. Lawyers enter the courtroom as of-
ficers of the court with professionally bestowed levels of cred-
ibility and discretion and thus occupy a position of public
trust.*
* Kowalski focuses her argument on why she did not “use[] a special
skill” for purposes of the § 3B1.3 enhancement. But the enhancement ap-
plies disjunctively if the defendant either “abused a position of public or
private trust, or used a special skill.” See § 3B1.3 (emphasis added). In any
event, Kowalski’s arguments in this regard are likewise fruitless. See

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10 No. 23-2374
Nor did the district court err in finding that Kowalski
abused this position of public trust in a manner that signifi-
cantly facilitated the offense. Kowalski hid hundreds of thou-
sands of dollars in her IOLTA—an account uniquely available
to lawyers and dubbed, after all, “trust account.” She then in-
voked the attorney-client privilege to avoid disclosing IOLTA
records that would expose this concealment. She also twice
filed documents containing false statements with the bank-
ruptcy court—representing first that the funds held within
her account were earned fees, and second that a deposit into
her IOLTA was not the property of Robert’s bankruptcy es-
tate.
The district court did not err in applying the abuse of trust
enhancement. Kowalski’s sentence is procedurally sound.
B. Substantive Reasonableness
Kowalski last argues that her 37-month sentence is sub-
stantively unreasonable. In reviewing for substantive reason-
ableness, “[t]he ultimate question is whether the district judge
‘imposed a sentence for logical reasons that are consistent
with the § 3553(a) factors’ that govern sentencing.” United
States v. Creek, 95 F.4th 484, 492 (7th Cir. 2024) (quoting United
States v. Miles, 86 F.4th 734, 743 (7th Cir. 2023)). Kowalski
“bears a heavy burden, for we review challenges to the sub-
stantive reasonableness of a sentence only for abuse of discre-
tion.” Id. Where, as here, a sentence falls within the properly
calculated Guidelines range, “our review is even more
§ 3B1.3, cmt. n.4 (“‘Special skill’ refers to a skill not possessed by members
of the general public and usually requiring substantial education, training
or licensing. Examples would include pilots, lawyers, doctors, accountants,
chemists, and demolition experts.” (emphasis added)).

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No. 23-2374 11
deferential: we presume that the sentence is reasonable.”
United States v. Taylor, 907 F.3d 1046, 1051 (7th Cir. 2018).
Kowalski fails to overcome this presumption. She argues
that her sentence is unreasonable given the nature and cir-
cumstances of her offense and her history and characteristics.
See 18 U.S.C. § 3553(a)(1). But, despite Kowalski’s attempts to
minimize her conduct, the district court clearly and thor-
oughly tailored the sentence to the unique nature and circum-
stances of the offense. The need for the sentence imposed to
“reflect the seriousness of the offense” and “promote respect
for the law”—key factors for a sentencing court to consider,
see 18 U.S.C. § 3553(a)(2)(A)—weighed heavily on the district
court’s mind in fashioning Kowalski’s sentence. The court
correctly observed that Kowalski’s crime was “extremely se-
rious” because she attempted to conceal more than $350,000
from the bankruptcy trustee, and did so at great public ex-
pense given the months it took to unwind the criminal con-
duct and related deceit. The court further found that the
“most important[]” aggravating aspect of Kowalski’s conduct
was that it had undermined the integrity of the court, faith in
the judiciary, the reputation of lawyers, and the rule of law.
The court also gave more than fair consideration to Kow-
alski’s mitigating family circumstances. See United States v.
Wood, 31 F.4th 593, 601 (7th Cir. 2022) (“Sentencing courts
‘need not mention every potential mitigating factor in detail.’”
(quoting United States v. Ballard, 12 F.4th 734, 745 (7th Cir.
2021))). Indeed, the court specifically discussed these circum-
stances, which undoubtedly played a role in its decision to
impose a low-end-of-the-Guidelines sentence.
In sum, the court’s sentence reflected its balancing of the
mitigating and aggravating circumstances as required by

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12 No. 23-2374
§ 3553(a). “The law required no more of the district court.”
United States v. Elmer, 980 F.3d 1171, 1178 (7th Cir. 2020). That
Kowalski’s selective review of the facts leads her to believe
her conduct warranted a lesser sentence does not undermine
the district court’s exercise of its broad discretion at sentenc-
ing: We will not “substitute our judgment for that of the dis-
trict court, which ‘is better situated to make individualized
sentencing decisions.’” Wood, 31 F.4th at 600 (quoting United
States v. Daoud, 980 F.3d 581, 591 (7th Cir. 2020)).
Kowalski’s bottom-of-the-Guidelines sentence is substan-
tively reasonable.
* * *
The judgment of the district court is
A FFIRMED.

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