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UNITED STATES v. AHERN

October 14, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDRE W. AHERN, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 This memorandum opinion and order deals with the latest of several motions that Andre Ahern ("Ahern") has filed seeking to overturn the $ 1.466 million restitution order that this Court imposed on him at the time of his sentencing on March 23, 1992. On December 10, 1991 Ahern had entered a guilty plea before this Court's colleague Honorable James Moran (who was handling this Court's motion call and other matters of course in this Court's absence), and the usual thorough presentence investigation report ("PSI") had been generated by this District Court's Probation Office before the sentencing date. *fn1" Just before the March 23 sentencing hearing the then counsel for Ahern tendered a quite minor proposed correction to the PSI.

 At the sentencing hearing itself this Court fully apprised Ahern of all of his rights under Fed. R. Crim. P. ("Rule") 32(a)(1), and Ahern exercised his right of allocution (statements were also made by Ahern's counsel on his behalf and by the prosecutor). Based on the parties' presentations, this Court ordered that several corrections be made to the PSI (those corrections were implemented by the Probation Officer two days later). As for the sentence, this Court imposed the three-year custodial sentence that had been recommended by the United States (this was a pre-Sentencing Guidelines case), to be served concurrently with another sentence that had been imposed on Ahern in the Southern District of Illinois in October 1991, and it ordered the restitution amount that Ahern and his counsel and the government had expressly agreed in Plea Agreement P 15 that Ahern could be ordered to pay to the three victims of his crimes:

 
15. The parties agree that the amount of restitution which the defendant could be ordered to pay to Monthco, TIFCO, and Casualty Insurance Company, if able, is $ 1,466,000. The defendant understands that Title 18, United States Code, Sections 3663 and 3664 set forth the factors to be weighed in setting restitution in this case. The defendant agrees to provide truthful information to the Court and United States Probation Officer regarding all details of his economic circumstances in order to determine the proper restitution which the defendant may be ordered to pay. Defendant understands that providing false or incomplete information may be prosecuted as a violation of Title 18, United States Code, Section 1001, or as a contempt of the Court.

 Several months after his sentencing Ahern submitted a pro se set of papers seeking a reduction of his sentence--both the custodial and restitutive components--that was timely filed under the version of Rule 35 that applied to pre-Guidelines sentences. In part that motion backed away from his already-quoted express agreement as to the permissible restitution requirement by stating cryptically (Mem. 10):

 
While defendant agreed that the potential restitution could be the $ 1,466,000 assessed by the plea agreement he did not agree that was the figure.

 After Ahern's self-prepared motion was supplemented by a filing by new out-of-state counsel acting on Ahern's behalf, on March 30, 1993 this Court did reduce the custodial part of Ahern's sentence from 36 months to 27 months, but it left the rest of his original sentence (including the restitution obligation) intact.

 Next Ahern filed a self-prepared 28 U.S.C. ยง 2255 ("Section 2255") motion to vacate his once-reduced sentence. This Court dismissed that motion summarily for the reasons stated in its September 7, 1993 memorandum opinion and order (836 F. Supp. 492). Ahern promptly moved for reconsideration, and this Court just as promptly denied that motion on September 23, 1993 (836 F. Supp. at 501). Yet on October 15, 1993 Ahern filed a memorandum and a set of bulky exhibits (the total submission was about one and one-half inches thick) in support of his motion to reconsider--obviously reflecting that he had not received the denial of that motion. But at that point the case was already at an end, and this Court therefore issued the attached October 22, 1993 memorandum opinion and order.

 Nothing daunted, Ahern--this time acting through the same out-of-state lawyer who had supplemented his Rule 35 motion--filed still another motion (captioned Motion To Vacate, Set Aside or Correct Restitution Sentence) nearly three months later (the Motion was dated January 17, 1994). That motion bore the same case number as the Section 2255 action that had already become final and non-appealable after this Court's September 7, 1993 dismissal and its September 23 denial of the motion for reconsideration. Whether because the new filing was submitted in an already-closed case or for some other reason, the motion was misplaced in the filing process and it took some follow-up efforts to locate it. After some further delays the government filed its response on September 28, 1994, and this Court has found that response wholly persuasive.

 Most fundamentally, the most recent motion (unlike Ahern's original pro se Section 2255 motion, which at least advanced some claimed--albeit wholly meritless--constitutional deprivations) does not fit at all under Section 2255 in the current circumstances. Here is how Ahern's counsel captions the Argument section of his Memorandum at 3:

 
THIS COURT, THROUGH NO FAULT OF ITS OWN, DETERMINED RESTITUTION WITHOUT THE NECESSARY AND CORRECT INFORMATION TO MAKE SUCH A DECISION.

 That is mirrored in the Argument itself (Mem. at 3-4, 6):

 
This Court, when making its restitution determination in this case, was presented with incorrect and inadequate information to determine properly the appropriate amount of restitution. Movant now seeks ...

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