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United States v. Fischer

decided: November 9, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
DORIS FISCHER, ET AL., DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 CR 329, Harry D. Leinenweber, Judge.

Posner and Coffey, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Grant

GRANT, Senior District Judge.

The United States of America has appealed the district court's granting of appellee's motion for reimbursement of funds out of the escrowed proceeds being restrained subject to forfeiture. Since that decision by the district court and the subsequent appeal, appellee Doris Fischer has been sentenced pursuant to a plea agreement, and has been ordered to forfeit the escrowed proceeds to the United States. We therefore now find the issue of reimbursement to be moot, and dismiss the appeal.

I

The grand jury indictment, returned on April 23, 1986, charged Fischer and others with conspiring to operate a prostitution business which served customers who placed "orders" by telephone and paid with cash or credit cards. It further charged that Fischer had obtained $1,053,894 as proceeds from her one-half interest in the enterprise, and that she concealed her cash income via a bookkeeping system coordinated by a co-defendant accountant. The indictment sought forfeiture of her interest in (1) the Buffalo Grove, Illinois house allegedly used in the prostitution business; (2) other assets used in the enterprise; and (3) the proceeds from her one-half interest in the business.

Orders had been issued, both before and after the indictment, pursuant to 18 U.S.C. ยง 1963(d)(1)(A) and (2), restraining Fischer from selling, transferring, or assigning her interest in those assets and proceeds. However, the court allowed the sale of the Buffalo Grove house, and placed the proceeds of that sale in escrow.

On July 29, 1986, Fischer moved for reimbursement of $5,307.12 that she had paid out for "ordinary and necessary expenses."*fn1 The motion was granted on August 26, 1986; the government appealed. It is that appeal which is presently before us.

However, on May 20, 1987, appellee signed a plea agreement in which she pled guilty to Counts 1 (including forfeiture), 24 and 25 of the indictment. Pursuant to that agreement, Fischer was sentenced, on August 17, 1987, to two years of imprisonment and five years of probation, and was ordered by Order and Judgment of Forfeiture filed August 28, 1987, to forfeit to the United States all right, title and interest to the property being restrained. Because we find that appellant's motion for reimbursement has now become moot, we dismiss the appeal.*fn2

II

The Supreme Court established the standard test for mootness in Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982) (per curiam):

In general a case becomes moot "'when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980), quoting Powell v. McCormack, 395 U.S. 486, 496, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969).

455 U.S. at 481, 102 S. Ct. at 1183. And, to paraphrase the Court's conclusion, it would seem clear that under this general rule Fischer's claim for reimbursement of funds was moot once forfeiture of those funds was established under the plea agreement. Indeed, once the appellee pled guilty to the count that included forfeiture, was sentenced under that plea agreement, and was ordered to forfeit all the escrowed assets and proceeds to the government, the issue of reimbursement could no longer be considered a "live" issue. Fischer relinquished her claim by agreeing to forfeiture.

And yet, a case cannot be moot if it is "capable of repetition, yet evading review." This situation is found only ...


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