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United States v. Walker

United States District Court, N.D. Illinois, Eastern Division

June 5, 2019

UNITED STATES OF AMERICA
v.
CHIKOSI WALKER

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE

         Chikosi Walker pled guilty to participating in a scheme to defraud the IRS by filing false tax returns in the names of individuals incarcerated by the Illinois Department of Corrections. The Court sentenced him to a term of imprisonment of forty-two months, to be followed by three years of supervised release. The Court also ordered him to pay restitution in the amount of $339, 787.28. Walker has moved to compel the government to file a motion under Federal Rule of Criminal Procedure 35(b) to reduce his sentence for his claimed substantial assistance with an investigation into his co-defendant.

         Background

          Walker operated a tax preparation business called Walker Tax Service. In 2008 and 2009, he and his friend Pierre Young participated in a scheme to defraud the IRS. Young provided Walker with the names and social security numbers of persons incarcerated by the Illinois Department of Corrections. Walker filed fraudulent tax returns on behalf of those individuals, and he and Young collected the proceeds from the tax returns.

         Walker and Young were indicted in August 2014 on three counts of wire fraud (18 U.S.C. § 1343) and one count each of converting money belonging to the United States (18 U.S.C. § 641). In April 2015, Young pled guilty to the charge under section 641, and the Court sentenced him to a term of imprisonment of twenty-four months, two years of supervised release, and restitution totaling $105, 615.

         Walker proceeded to trial in April 2016. The Court declared a mistrial after the jury was unable to return a unanimous verdict. Walker ultimately entered a guilty plea on one count of wire fraud on February 2, 2017. The Court sentenced Walker on June 2, 2017. A central issue at the hearing was whether he was subject to a Sentencing Guidelines enhancement for obstructing justice. The government submitted audio recordings of phone conversations in which Walker exhorted Young to tell the truth in his testimony but also specifically instructed him about what to say. There was also evidence that Walker deposited almost $2, 000 into Young's commissary account.

         At sentencing, Walker argued that he had not obstructed justice but had merely encouraged Young to be truthful. The Court rejected that argument, finding that the tenor and context of the conversations made it evident that Walker was encouraging Young to lie. Walker also denied paying Young for his testimony. He alleged that at one point Young demanded $15, 000 or $20, 000 in exchange for favorable testimony and that he (Walker) immediately informed the government. The Court also rejected this argument because it found that Walker cooperated only because the government turned over the audio recordings in which Walker admitted his guilt and tried to influence Young's testimony. Based on this evidence, the Court found that the government established the enhancement for obstruction of justice by a preponderance of the evidence.

         Walker alleges that the government promised a lighter sentence in exchange for cooperation in the investigation of Young's alleged attempt to obstruct justice. The government categorically denies that allegation. Walker has filed a motion to compel the government to file a motion to reduce his sentence for substantial assistance under Federal Rule of Criminal Procedure 35(b).

         Discussion

         Rule 35(b) allows the Court, on the government's motion, to "reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person." Fed. R. Crim. P. 35(b)(1).

         A. Jurisdiction

         The government first argues that the Court lacks jurisdiction over Walker's motion. It cites United States v. Obeid, 707 F.3d 898 (7th Cir. 2013), in which the Seventh Circuit held that "the defendant may challenge the government's refusal" to file a Rule 35(b) motion "in a motion under 28 U.S.C. § 2255." Id. at 901. The government argues that because Walker has already filed a motion under section 2255, the present motion is barred as a successive motion under section 2255 for which Walker has not obtained authorization. See 28 U.S.C. § 2255(h).

         The Seventh Circuit has clarified, however, that a defendant need not proceed under section 2255 in this situation but may instead file a motion to compel the government to file a Rule 35(b) motion. See Kirk v. U.S. Dep't of Justice, 842 F.3d 1063, 1066 (7th Cir. 2016). The court stated that "there cannot be any doubt about the district court's power to entertain a motion asking the judge" to compel the government to file a motion under Rule 35(b). Id. That is precisely what Walker has filed, and under Kirk, the Court has jurisdiction over his motion.

         B. ...


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