U.S. v. GLOVER

The opinion of the court was delivered by: William T. Hart, District Judge

MEMORANDUM OPINION AND ORDER

Defendant Paul Glover was formerly the Vice-President and General Counsel of the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) (the "Union"). Defendant was charged with a number of federal offenses involving a series of investments that he arranged to be made with money from the Union's benefit funds. He entered into these transactions on the Union's behalf for the purpose of obtaining kickbacks for himself and others. Defendant's first trial ended in a mistrial. Following a second jury trial, defendant was found guilty of one count of a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d); 11 counts of soliciting and receiving kickbacks in violation of 18 U.S.C. § 1954; two counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and four counts of tax evasion in violation of 26 U.S.C. § 7206. Defendant was sentenced to concurrent terms of incarceration with the longest term being 84 months. The term of incarceration is to be followed by three years' supervised release. Additionally, defendant was required to forfeit $325,000. Defendant's conviction and sentence were affirmed on direct appeal, where he was represented by the same counsel who represented him at trial. See United States v. Glover, 101 F.3d 1183 (7th Cir. 1996) ("Glover I"). Two issues were raised on direct appeal: (1) whether the district court abused its discretion by admitting portions of defendant's trial testimony from his first trial instead of admitting all of his prior testimony and (2) whether, pursuant to U.S.S.G. § 3C1.1, it was appropriate to increase defendant's base offense level by two levels for obstruction of justice.

Following the affirmance on direct appeal, pursuant to 28 U.S.C. § 2255, defendant timely moved to vacate his sentence.*fn1 Defendant contended his guideline sentencing range was incorrectly calculated because his money laundering offenses should have been grouped with his conspiracy and kickback offenses. At the time of sentencing, it had been determined that defendant's total offense level was 28 and his criminal history was Category I for a guideline range of 78 to 97 months. In his motion, defendant alleged that grouping would have resulted in a total offense level of 26 and a guideline range of 63 to 78 months, which would have resulted in a sentence of incarceration of 6 to 21 months less than the 84 months to which he had been sentenced. In the presentence report ("PSR"), the probation officer had recommended grouping all the offenses, but the government successfully argued otherwise. In his § 2255 motion, defendant further alleged that his attorneys provided ineffective assistance by failing to adequately argue the grouping issue at the time of sentencing and by failing to raise the issue at all on direct appeal. In arguing that grouping was appropriate, defendant relied in part on United States v. Wilson, 98 F.3d 281 (7th Cir. 1996) ("Wilson I"), which was issued after defendant's direct appeal was argued, but approximately one and one-half months before Glover I was issued.

In response to the § 2255 motion, the government contended that defendant's attorneys were not ineffective because they had adequately urged grouping at the time of sentencing and were not ineffective for failing to raise the issue on appeal because, according to the government, the Seventh Circuit had not yet ruled on the issue and all other circuits had reached holdings that grouping of money laundering with other offenses was inappropriate. As to the prejudice prong of an ineffective assistance of counsel claim, the government contended that a one-or-two-level decrease to the offense level was insufficient to satisfy the prejudice prong. The government made no argument that grouping was improper following Wilson I, but did contend that grouping would result in a total offense level of 27 (not 26) and a guideline range of 70 to 87 months.

In ruling on the § 2255 motion, this court rejected the government's contention that grouping would have resulted in only a one-level change. United States v. Glover, 1998 WL 611451 *1 & n.1 (N.D. Ill. Sept. 8, 1998) ("Glover II"). The government's brief was construed as containing an implicit concession that, in light of Wilson I, grouping was appropriate. See Glover II, 1998 WL 611451 at *1. However, it was unnecessary to decide whether counsel's performance was deficient at sentencing or on appeal, because it was held that defendant could not satisfy the prejudice prong. Following Seventh Circuit precedent, see Martin v. United States, 109 F.3d 1177, 1178 (7th Cir. 1996), cert. denied, 522 U.S. 931 (1997); Durrive v. United States, 4 F.3d 548, 551 (7th Cir. 1993), it was held that the two-level adjustment to defendant's offense level was not significant enough to satisfy the prejudice prong of an ineffective assistance of counsel claim. Id. at *2-3.

Still proceeding pro se, defendant appealed the denial of § 2255 relief. The government's brief before the Seventh Circuit focused entirely on whether the prejudice prong could be satisfied by the potential decrease in defendant's sentence. See Glover v. United States, 2000 WL 1673207 *1a-21a (U.S. Oct. 27, 2000) (petitioner's reply brief, appendix A*fn2). See also Glover v. United States, 121 S.Ct. 696, 699-700 (2001) ("Glover IV"). On direct appeal before the Seventh Circuit, the government made no argument that grouping would have resulted in an increase in the guideline range, nor did it repeat its argument that there would be only a one-level decrease. The Seventh Circuit affirmed on the ground that, under its precedents, the potential decrease in defendant's sentence was not sufficiently significant to satisfy the prejudice prong. Glover v. United States, 182 F.3d 921, 1999 WL 511523 (7th Cir. July 15, 1999) (unpublished order).

The Supreme Court granted certiorari.*fn3 Before the Supreme Court, the government conceded that the Seventh Circuit's rule that satisfying the prejudice prong requires a significant change in a sentence was inconsistent with Supreme Court precedent. See Glover v. United States, 2000 WL 1469341 *18-24 (U.S. Sept. 27, 2000) (respondent's brief) ("Resp. Br."); Glover IV, 121 S.Ct. at 700. Instead, the government again argued, as it had in the district court, that counsel's performance was not deficient. Resp. Br., 2000 WL 1469341 at *24-34. For the first time, the government also argued that there was no prejudice because (a) defendant's offenses should not be grouped, id. at *38-44, and (b) even if they should be grouped under U.S.S.G. § 3D1.2(d), such grouping would have resulted in a total offense level of 30 and a lengthier guideline range, id. at *44-47.

As was conceded by the government, the Supreme Court held that the Seventh Circuit requirement of a significant change of sentence was error. Glover IV, 121 S.Ct. at 700-01. The Supreme Court declined to consider the arguments regarding counsel's performance, the appropriateness of grouping, or grouping's effects on the guideline range because these arguments had not been raised in nor passed upon by the Seventh Circuit and they were outside the questions presented by the petition for certiorari. Id. at 701. "Whether these issues remain open, and if so whether they have merit, are questions for the Court of Appeals or the District Court to consider and determine in the first instance." Id. The case was reversed and remanded for further proceedings consistent with Glover IV.

On remand before the Seventh Circuit, the government argued that the denial of § 2255 relief should be affirmed on the same alternative grounds that were argued before the Supreme Court. Defendant requested that the case be remanded to the district court for expedited proceedings. Defendant represents that, without any change to his sentence, he is projected to complete his term of incarceration in January 2002. If successful on his § 2255 motion, he may have already fully served a new sentence of incarceration that might be imposed. On March 13, 2001, the Seventh Circuit issued the following order; "The Supreme Court having reversed the judgment of this Court and remanded this case for reconsideration in light of its opinion in Glover v. United States. This case is REMANDED for further proceedings consistent with the aforesaid Supreme Court opinion. Because of the possibility of mootness, the district court should expedite its reconsideration."

On remand before this court, the parties requested permission to file additional briefs rather than have this court rule upon the originally filed briefs. Defendant moved for summary judgment and the government again seeks to raise the alternative grounds for affirmance. As to the government's contentions regarding lack of prejudice, defendant contends these arguments are waived because not raised until the case was before the Supreme Court and, as to the contention that grouping results in a higher sentence, also waived because it was not raised at the time of sentencing.*fn4

In Wilson I, defendant Wilson was found guilty of both mail fraud and money laundering. Calculated separately, each had an offense level of 23, with the money laundering calculation being based solely on the amount of money laundered, not on the additional amounts involved in the mail fraud. Pursuant to U.S.S.G. § 3D1.4, two levels were added for having multiple offenses. Also, three levels were subtracted for acceptance of responsibility for a total offense level of 22 and a guideline range of 41 to 51 months. Wilson was sentenced to 51 months' incarceration. See Wilson I, 98 F.3d at 282. On direct appeal, it was held that Wilson's mail fraud and money laundering offenses should have been grouped together pursuant to § 3D1.2(d) and the case was remanded for resentencing. Id. at 283-84. On remand, the district court determined that, once grouped under § 3D1.2(d), mail fraud became relevant conduct for the money laundering offense and therefore the offense level for money laundering was computed using a higher dollar figure for the value of the laundered funds, that is by also including the amounts involved in the mail fraud. See U.S.S.G. § 2S1.1(b)(2). Thus, on remand, Wilson's total offense level was 25 which produced a guideline range of 57 to 71 months. Wilson was sentenced to 71 months' incarceration, 20 months longer than before the remand. See United States v. Wilson, 131 F.3d 1250, 1251 (7th Cir. 1997) ("Wilson II"). Wilson again appealed and Wilson II holds that the government waived the contention that there was additional relevant conduct for the money laundering offense because the government did not raise such an objection before the first sentencing. Id. at 1253-54. See also United States v. Wyss, 147 F.3d 631, 633 (7th Cir. 1998). Wilson II specifically holds that it did not matter that the district court originally held otherwise as to grouping because the same relevant conduct arguments could have been made regardless of the ruling on grouping. See Wilson II, 131 F.3d at 1253. As regards the government's present contention that grouping under § 3D1.2(d) would have resulted in a higher guideline range, Wilson II is directly on point. The government is precluded from presently raising that contention.

The issue of whether grouping is appropriate is in a different posture. The government did make such an argument at the time of sentencing and this court ruled in the government's favor based on the then-existing precedents that were cited. However, in response to defendant's § 2255 motion, the government made no such argument in light of the then-existing Seventh Circuit case law and this court construed the government's brief as containing an implicit concession that grouping was appropriate in light of Wilson I. See Glover II, 1998 WL 611451 at *1. On the § 2255 appeal, there was also no such argument made to the Seventh Circuit. The argument was raised for the first time before the Supreme Court.

The issues available on remand may be limited by directions contained in the mandate of the higher court. United States v. Polland, 56 F.3d 776, 777-78 (7th Cir. 1995). Here, though, the Supreme Court left it to this court or the Seventh Circuit to determine whether the additional issues "remain open" and, "if so," to address the merits. Glover IV, 121 S.Ct. at 701. The Seventh Circuit's judgment left it for this court to decide that issue in the first instance. The mandate itself, therefore, does not limit the issues that may be considered. Instead, rules of law of the case and waiver must be considered. See Polland, 56 F.3d at 779 & n.1; Shore v. Warden, Stateville Prison, 942 F.2d 1117, 1123-24 (7th Cir. 1991), cert. denied, 504 U.S. 922 (1992); Heller International Corp. v. Sharp,, 1994 WL 386421 *5 (N.D. Ill. July 19, 1994). The law ...