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Skrzypek v. United States

April 20, 2010


The opinion of the court was delivered by: Wayne R. Andersen United States District Judge

Wayne R. Andersen District Judge


This case is before the Court on the amended petitions of James and Janice Skrzypek (the "Skrzypeks"), as prisoners in federal custody, for a writ of habeas corpus to correct their sentences pursuant to 28 U.S.C. § 2255. Before this court are also several motions relating to the appointment of counsel, production of files and documents, and other topics. For the reasons set forth below, the petitions are denied, and the remaining motions are ruled on as explained in this opinion.


I. Factual Background

The Skrzypeks operated various security guard companies during the 1990s and committed numerous offenses using these companies and their employees. Through Federal Security, Inc., one of the companies, the Skrzypeks defrauded the Chicago Housing Authority ("CHA") of at least $1.1 million through false billings with inflated guard hours. (Government's Resp. to Defs.' Pet. at 11.) As the government explained, "James Skrzypek first obtained a contract by falsely telling the CHA that Federal Security had fifty guards when it had none," and "virtually every employee of Federal Security was involved in some way, wittingly or unwittingly, in furthering the creation of time sheets which falsely represented that Federal Security guards were present at CHA residences." (Id. at 12, 13.) Furthermore, the Skrzypeks "also authorized the use of Federal Security funds to pay bribes to CHA employees responsible for overseeing Federal Security's performance in return for promises that the CHA would reduce oversight of Federal Security, award Federal Security additional contracts and pay Federal Security's fraudulent bills." (Id. at 15.) Meanwhile, as the Skrzypeks overstated the size of their workforce to the CHA, they understated the size of their workforce to the providers of their liability and workers compensation insurance policies, in order to reduce the insurance premiums they were required to pay. (Id. at 15-16.) "The Skrzypeks also withheld taxes from the wages of their guards, and then diverted this and other funds of their companies for their own benefit," spending the money on such personal items as jewelry, a large home, luxury autos, and extravagant trips. (Id. at 16.)

After the investigation was underway, the Skrzypeks concealed 70 to 80 boxes of previously subpoenaed records, and they submitted affidavits to the grand jury which falsely represented that they had produced all subpoenaed records. (Id. at 17.) The manner in which these records were discovered is at the heart of the Skrzypeks' petitions, and must be explained in more detail.

On July 23, 1997, FBI agents executed a search and seizure warrant that had been issued by the Honorable Marvin E. Aspen. The warrant authorized the agents to search for and seize a 1993 Porsche 968 Cabriolet, which had been named in the indictment as forfeitable proceeds of the charged RICO violations, and which the agents believed to be located in the unattached twocar garage located behind the Skrzypeks' residence. (Government's Resp. to Defs.' Pet. at 17; Mem. in Supp. of Am. Pet. at 1, Ex. 1.) Special Agent John Diwik entered the garage and immediately observed the aforementioned Porsche. (Mem. in Supp. of Am. Pet. Ex. 2.) Agent Diwik then observed "pull-down stairs to climb up . . . in the attic of the garage that were down." (Mem. in Supp. of Am. Pet. at 4; Government's Resp. to Defs.' Pet. at 17 (both citing Tr. at 2001).) He described his next steps as follows: "So all I did was go up about four steps and just stick my head up there to see what was there or if anyone was there." (Mem. in Supp. of Am. Pet. at 4; Government's Resp. to Defs.' Pet. at 17 (both citing Tr. at 2001).) Diwik then observed, in plain view, numerous boxes with labels such as "CHA Contract" and "Telephone Bills Federal." (Mem. in Supp. of Am. Pet. at 4; Government's Resp. to Defs.' Pet. at 18.) Agent Diwik "recognized these records as evidence of financial crimes being investigated as similar boxes of records had been obtained by the execution of prior search warrants." (Government's Resp. to Defs.' Pet. at 18.) He did not proceed all the way up the staircase or move or open the boxes. (Id.) Instead, Diwik relayed the information to other agents, who then obtained another search warrant to search the garage, this time for the records in the garage attic. (Mem. in Supp. of Am. Pet. at 4; Government's Resp. to Defs.' Pet. at 18.)

The government asserts that Agent Diwik's actions leading to the discovery of the boxes were part of a valid "protective sweep." The Skrzypeks argue that Agent Diwik exceeded the scope of the search authorized by the original warrant, and therefore that the discovery of the boxes was the result of an illegal search. These arguments will be discussed more fully below.

II. Procedural Background

A. Original Trial

The Skrzypeks were charged with racketeering, mail and wire fraud, false claims, bribery of public officials, money laundering, obstruction of justice, and other charges. The criminal case (97 CR 516) included a total of 10 defendants, consisting of 5 individuals and 5 business entities. The Skrzypeks entered a plea of not guilty, and a jury trial was held in early 2002. At the conclusion of the trial, the Skrzypeks were convicted of all but one money laundering charge, and they were each sentenced to a total of 90 months imprisonment and ordered to pay restitution in the amount of $3,488,391, payable immediately.

B. Direct Appeal

The Skrzypeks filed timely notices of appeal on March 17, 2005. They made one argument on appeal, contending that the district court erred by failing to impose a payment schedule for restitution. United States v. Skrzypek, 219 Fed. Appx. 577, 579 (7th Cir. 2007). The Seventh Circuit affirmed the convictions and sentences of both of the Skrzypeks, but remanded the cases for the limited purpose of allowing the district court to set a payment schedule for restitution. Id.

On July 31, 2007, the Skrzypeks filed a petition for certiorari with the United States Supreme Court, which was denied on October 1, 2007. (Mem. in Supp. of Original Pet. at 1.)

C. Original and Amended Habeas Petitions

James and Janice Skrzypek both filed petitions for relief pursuant to 28 U.S.C. § 2255 on October 10, 2007, in cases 07 C 5753 (James) and 07 C 5754 (Janice). The dockets of both cases have largely mirrored one another since that time, with both petitioners generally filing identical motions simultaneously.

In their petitions, the Skrzypeks challenge their convictions by making a claim of ineffective assistance of counsel. The defense attorneys failed to present motions to suppress evidence -- namely, the boxes discovered in the Skrzypeks' garage attic -- which the Skrzypeks claim were obtained through an illegal search, in violation of the Fourth Amendment. The government filed responses to each petition on March 6, 2008. (Dkt. 11 in 5753, Dkt. 8 in 5754.) The Skrzypeks later filed amended petitions on September 22, 2009. (Dkt. 69 in 5753, Dkt. 52 in 5754.) The amended petitions did not raise any new grounds on which the Skrzypeks challenged their conviction, but simply expanded the arguments the Skrzypeks made in support of their claims. (Am. Pet. at 4 ("Some [sic] claim presented by the instant motion, except that the legal arguments have been expanded.").) It is unclear whether the Skrzypeks' amended petitions and memoranda were intended to supplement or replace their original petitions and memoranda. Therefore, we note that in analyzing this claim, the Court examined and considered all documents submitted by the parties, and all arguments made therein.

The Skrzypeks also filed identical "Motion[s] for an Order Directing the United States to Answer Amended 28 U.S.C. § Motion[s]." (Dkt. 71 in 5753, Dkt. 54 in 5754.) While the title of these motions suggests that the Skrzypeks were demanding that the government file new responses to the newly amended petitions, the actual text of these motions seems to suggest that the Skrzypeks are requesting leave to file amended petitions. This Court granted the Skrzypeks leave to amend/correct their petitions in open court on December 17, 2009 (Dkt. 85 in 5753, Dkt. 66 in 5754), so any pending request to amend would now be moot. Furthermore, during the open court hearing on December 17, 2009, Assistant United States Attorney Brian Netols represented to the Court that the government considered all motions to be fully briefed, presumably relying on the government's responses to the original petitions as sufficient to respond to the amended petitions, and he indicated that the government did not intend to submit any additional filings on any motions pending at that time.

D. Requests for Counsel

The Skrzypeks filed joint motions for appointment of counsel on April 23, 2008. (Dkt. 17 in 5753, Dkt. 11 in 5754.) The Honorable James Moran denied James Skrzypek's motion on June 25, 2008. (Dkt. 19 in 5753.) No formal ruling on Janice Skrzypek's motion appears on the docket of case 5754, though the motion is no longer listed as pending. On July 7, 2008, the Skrzypeks filed notices of appeal regarding Judge Moran's order of June 25, 2008. (Dkt. 21 in 5753, Dkt. 14 in 5754.) On that same day, the Skrzypeks filed requests for appointment of appellate counsel. (Dkt. 22 in 5753, Dkt. 13 in 5754.) On July 18, 2008, Judge Moran denied the Skrzypeks' requests for appointment of appellate counsel and their requests for certificates of appealability. (Dkt. 27 in 5753, Dkt. 18 in 5754.) The appeals were dismissed on October 27, 2008, for lack of jurisdiction. (Dkt. 51 & 52 in 5753, Dkt. 34-36 in 5754.) The Seventh Circuit stated, "This appeal is premature because the appellant's case continues in the district court." (Dkt. 51 in 5753, Dkt. 36 in 5754.)

On July 31, 2008, the Skrzypeks filed in the district court motions for reconsideration of the denial of the appointment of counsel. (Dkt. 32 in 5753, Dkt. 24 in 5754.) The government filed responses on March 27, 2009 (Dkt. 56 in 5753, Dkt. 40 in 5754), and the Skrzypeks replied on June 23, 2009 (Dkt. 66 in 5753, Dkt. 49 in 5754). These motions for reconsideration of the denial of appointment of counsel remain pending, and will be addressed in this opinion.

On June 23, 2009, the Skrzypeks filed motions for appointment of named counsel, stating that attorney Kent Gipson had "expressed his willingness for an appointment by this Court to represent [the Skrzypeks]." (Dkt. 67 in 5753, Dkt. 50 in 5754.) These motions remain pending as well, and will also be addressed in this opinion.

E. Motions Regarding Production of Documents/Files

On May 5, 2009, the Skrzypeks filed "Motion[s] to Order Production of Documents Pursuant to Rule 6, of the Rules Governing § 2255 Proceedings for the United States District Court." (Dkt. 64 in 5753, Dkt. 47 in 5754.) On June 23, 2009, the Skrzypeks filed "Motion[s] to Compel Delivery of Complete Client Files from Former Appointed Appellate Counsel," which also served as their "Repl[ies] to Government's Response to [the] Motions for Reconsideration." (Dkt. 66 in 5753, Dkt. 49 in 5754.) On September 22, 2009, the Skrzypeks filed "Motion[s] to Expand the Record." (Dkt. 72 in 5753, Dkt. 53 in 5754.)

All of these motions relating to production of documents and files will be addressed in this opinion.


I. Request for Counsel

Pending before this Court are the Skrzypeks' motions for reconsideration of the denial of appointment of counsel and motions for appointment of named counsel.

A. Motions for Reconsideration

As mentioned earlier, the Skrzypeks' requests for counsel at both the district court and the appellate court were denied, and their appeal on this issue was dismissed. The Skrzypeks filed motions for reconsideration of the appointment of counsel on July 31, 2008. To the extent that their motions ask this Court to reconsider the denial of appellate counsel, the motions are moot, as there is no pending appeal for which counsel could be appointed. To the extent that their motions ask this Court to reconsider the denial of counsel for proceedings at the district court level, we analyze the issue as follows.

We start with the premise that "[a] section 2255 proceeding is an independent civil suit for which there is no constitutional right to appointment of counsel," though the court may, in its discretion, appoint counsel for such proceedings. Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 1992). Factors that a court may consider in its decision regarding whether to appoint counsel include: (1) the merit of the petitioners' claims, (2) the futility of further investigation, (3) petitioners' proven ability to articulate and present their claims, and (4) the straightforward nature of those claims. Id.

In considering all of these factors, we conclude that there is no need to appoint counsel for the Skrzypeks in this proceeding. We agree with the reasoning set forth by the Honorable James Moran in his Memorandum Opinion and Order of July 18, 2008, in which he stated,

The Skrzypeks have demonstrated an ability to articulate their legal positions, even though their own counsel has branded many of them frivolous. The suppression claim is a relatively narrow issue. Even were defendants correct, we see little possibility of their overturning their convictions. The evidence supporting conviction was overwhelming and came from many sources other than stored records. (Dkt. 28 in 5753.)

While the Skrzypeks argue that they need lawyers to navigate the legal complexities involved in these proceedings, we find that they are capable of representing themselves in this regard. The Skrzypeks also seem to suggest that they require counsel in order to collect documents that they seek from their previous attorneys. However, we decline to appoint a lawyer for the purpose of assisting with such administrative tasks. (For additional discussion of production of documents and records, see the discussion below regarding the pending motions on this subject.) The motions for reconsideration are denied.

B. Motions for Appointment of Named Counsel

In their motions filed on June 23, 2009, the Skrzypeks inform the Court that "Attorney [Kent] Gipson expressed his willingness for an appointment by this Court to represent Defendants," and they ask the Court to appoint Mr. Gipson to "represent Defendants in their § 2255 Petition." (Mot. for Appointment of Named Counsel at 3.) If the Skrzypeks wish to hire independent counsel to represent them, they are entitled to do so. However, for the reasons set forth in the previous section, this Court declines to appoint counsel to represent the Skrzypeks. The motions for appointment of named counsel are denied.

II. Habeas Petition

A. Standard of Review Under 28 U.S.C. § 2255

The federal habeas corpus statute, 28 U.S.C. ยง 2255, provides that: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise ...

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