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United States v. Diekemper

April 28, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSEPH DIEKEMPER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois. No. 08-30139-01-G. Patrick Murphy, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED JANUARY 11, 2010

Before EASTERBROOK, Chief Judge, and KANNE, Circuit Judge, and KENNELLY, District Judge.*fn1

Joseph Diekemper pled guilty to conspiracy to commit bankruptcy fraud, conspiracy to commit mail fraud, making false statements for the purpose of influencing the United States Department of Agriculture ("USDA") Commodity Credit Corporation, and perjury. Diekemper's wife and co-conspirator, Margaret Diekemper, was sentenced first and received two years' probation for her involvement in the conspiracy. As a condition of that probation, Mrs. Diekemper was prohibited from all contact with her husband during those two years. Diekemper was sentenced subsequently, and after receiving a four-level enhancement for his leadership role, he received a within-guidelines sentence of 120 months' imprisonment.

Diekemper appeals his sentence, alleging that (1) his wife's probation condition violates his fundamental right to a marital relationship; (2) the district court judge's failure to recuse himself for bias violates Diekemper's right to due process; (3) the district court's application of the sentencing enhancement was in error; and (4) the district court's failure to weigh all of the sentencing factors in 18 U.S.C. § 3553 was in error. We affirm.

I.BACKGROUND

Joseph and Margaret Diekemper were dairy farmers who had been married for thirty-five years. The couple filed for bankruptcy in May 2004. For close to four years thereafter Diekemper engaged in a scheme to conceal assets from the bankruptcy court. Eventually the government discovered Diekemper's conduct and indicted him on twenty-one counts. He ultimately pled guilty to five of the charged counts.

At Diekemper's plea hearing, he signed a stipulation of facts admitting to a variety of illegal conduct, including: undervaluing property and assets by more than 2.5 million dollars, hiding farm equipment on friends' properties, titling and selling vehicles and equipment in others' names, using the mail service to effectuate these transfers, failing to disclose financial information to the bankruptcy trustee, fraudulently obtaining agricultural subsidies from the USDA, and urging others to lie under oath during his bankruptcy proceedings. In the interim between Diekemper's plea hearing and his sentencing hearing, Mrs. Diekemper was sentenced for her participation as a co-conspirator in the scheme. A condition of her two-year probation was that she refrain from all contact with Diekemper during those two years.

One month after Mrs. Diekemper's sentencing, Diekemper had his own sentencing hearing. During that hearing, Diekemper did not challenge his wife's probation condition. (See Appellee's App. at 39) ("[M]y understanding of the ruling was that [Mrs. Diekemper] was not permitted contact. . . . And I can stand here and question the validity of that judgment, I'm not going to do that." (statement by Diekemper's counsel)). But Diekemper did contest the four-level enhancement to his sentence for his role as the organizer of an extensive criminal activity, pursuant to U.S.S.G. § 3B1.1(a). Ultimately, however, the district court found the four-level enhancement appropriate and sentenced Diekemper to 120 months' imprisonment for his mail fraud and 60 months' imprisonment on each of the other counts, with each sentence to run concurrently.

II. ANALYSIS

Diekemper now challenges various aspects of his sentencing. We address each of his contentions in turn.

A. Mrs. Diekemper's Probation Condition

Diekemper first argues that his wife's probation condition violates his fundamental right to a marital relation-ship. Although the government urges us to find that Diekemper waived this argument through his attorney's statement at sentencing (and indeed, he may have), we need not address the issue of waiver because Diekemper's argument is not properly before us in the first instance, and in any event, Diekemper lacks standing to pursue it.

To raise a claim before an Article III court, a litigant must present a case or controversy that can be properly adjudicated by the federal courts. O'Sullivan v. City of Chicago, 396 F.3d 843, 853 (7th Cir. 2005). To be properly before the federal courts, a litigant must have timely appealed a final judgment, see generally Fed. R. App. P. 3-4; Fairley v. Andrews, 578 F.3d 518, 521 (7th Cir. 2009) ("The only prerequisites to appellate jurisdiction are a final judgment and a timely notice of appeal."), and have standing to raise the challenged issue, Michigan v. U.S. Environmental Protection Agency, 581 F.3d 524, 528 (7th Cir. 2009). A litigant has standing when he demonstrates: "(1) an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of . . . ; and (3) a favorable decision will likely redress the injury." O'Sullivan, 396 F.3d at 854 (internal quotation marks omitted).

Diekemper's argument fails at its inception because the probation condition with which he takes issue was decided in an entirely different case. He is appealing the final judgment in his own case, not the final judgment in Mrs. Diekemper's case. Mrs. Diekemper neither took issue with her probation condition nor appealed her sentence. And that judgment is not now before us. We therefore have no ...


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