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U.S. v. GLOVER
May 7, 2001
UNITED STATES OF AMERICA, PLAINTIFF,
v.
PAUL L. GLOVER, DEFENDANT.
The opinion of the court was delivered by: William T. Hart, District Judge
On Remand from the United States Court of Appeals for the Seventh
Circuit, No. 98-4021, there heard on remand from the United States
Supreme Court, No. 98-8576
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 ...