No. 94-2483
____________________________________
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
____________________________
Hon. RICHARD A. POSNER, Chief Judge
UNITED STATES OF AMERICA ] Appeal from the United
Plaintiff-Appellee, ] States District Court for
] the Northern District of
No. 94-2483 v. ] Illinois, Eastern Division
] Division.
]
MICHAEL WILLIAMS, ]
Defendant-Appellant. ] No. 88 CR 204
]
] Harry D. Leinenweber,
Judge.
BRIEF FOR DEFENDANT-APPELLANT WITH APPENDIX
Submitted by Defendant-Appellant
Michael Williams
Postfach 20
CH-3112
Allmendingen bei
Bern
Switzerland
pro se
Table of Contents
Table of Cases, Statutes, and Authorities....................iii
Statement of Subject Matter and Appellate Jurisdiction.........1
Statement of Issues Presented for Review.......................3
Statement of the Case..........................................4
Summary of Argument............................................6
Argument.......................................................7
Statement of Facts........................................7
I. Whether the District Court erred; first, in ordering
unspecified restitution "under the auspices of the probation
department," and second, in allowing the government's Motion
for Forfeiture pursuant to that order.
..........................................................8
A. The Order of Restitution was flawed insofar as it was too
vague and left too much discretion to the probation department
B. A Forfeiture order predicated on a flawed
restitution order must be reviewed................12
C. Enforcement of a Forfeiture Order under the present
circumstances should be barred by the doctrine of laches.
.......................................................13
II. This Court should review the entire record below
because of the strong possibility of other substantive
and procedural errors resulting in substantial injustice
to the Defendant-Appellant
.... ...................................................14
Conclusion....................................................16
Appendix......................................................17
Table
of Cases, Statutes, and Authorities
Cases
United States Court of Appeals, 7th Circuit
United States v. Boula, 997 F. 2d 263 (7th Cir 1993)...........9
United States v. Braslawsky, 951 F. 2d 149 (7th Cir. 1991)....12
United States v. Fountain 768 F. 2d 790 (7th Cir. 1985),
rehearing denied, supplemented 777 F. 2d 344, certiorari
denied 106 S. C. 1647, 475 U.S. 1124, 90 L.Ed. 2d 191....12
United States v. Gomer, 764 F. 2d 1221, 1224 (7th Cir. 1985)..14
United States v. Lovett, 811 F.2d 979, 990 (7th Cir. 1987)....11
United States v. Mohammad, 53 F. 3rd 1426 (7th Cir. 1993).....10
United States v. Sung, 51 F. 3rd 92, 94 (7th Cir. 1995).......10
United States v. Simpson, 8 F. 3rd, 546, 551 (7th Cir. 1993)..15
United States Court of Appeals, 8th Circuit
United States v. Pendergast, 979 F. 2d 1289 (8th Cir. 1992)..13
United States Court of Appeals, 10th Circuit
United States v. Diamond. 969 F. 2d 961, C.A. 10 (Okl) 1992..12
United States Court of Appeals, 11th Circuit
United States v. Sasnett, 925 F. 2d 392, 399-400 (11th Cir.
1991).........................................................13
United States District Courts
United States v. Savely, 814 F. Supp. 1519, D. Kansas 1993,
reconsideration granted 827, F. Supp. 668......................8
Statutes
18 U.S.C. 1341..............................................4
18 U.S.C. 1343..............................................4
18 U.S.C. 3663..............................................6
18 U.S.C. 3663(a)...........................................8
Rules of Procedure
Fed. R.App.P. 10(c)...........................................1
Fed. R.App.P. 28(b)Seventh Circuit............................1
Fed. R.Crim.P. 52(b)..........................................14
Statement of Subject Matter and Appellate Jurisdiction
This is a direct criminal appeal seeking a review of all
proceedings below, and particularly review of an Order of
Restitution and subsequent Forfeiture Order issued by the District
Court.
Pursuant, presumably to the Order of Restitution, the
Government moved for forfeiture of certain property in February of
1994. A hearing was held in March 1994. Mr. Robert Clark, then
private counsel for Michael Williams, raised several objections to
that order. (Appendix, p. 21-23)
The Order of Forfeiture contested herein was entered in April,
1994.
The Defendant-Appellant filed a Notice of Appeal on or about
June 10, 1994 and paid the docketing fee.
The Defendant-Appellant was unable to reach an agreement for
services with his attorney for the prosecution of this appeal, and
was unable to obtain the record below for the purpose of producing
this brief in a timely manner. For that reason, this Jurisdictional
Statement will necessarily be defective with respect to
Fed.R.App.P. 7th Circuit Rule 28(b).
Pursuant to Fed.R.App.P Rule 10(c), the Defendant-Appellant
will develop the evidence from the available documents, personal
files and journals, and his best recollection.
On information and belief, the Order of Forfeiture is
immediately appealable. Such orders fall generally within the scope
of appealable rulings. The Defendant-Appellant has the
understanding that orders are appealable when their execution has
immediate or irreversible consequences to the affected party. The
sale to be authorized is final, and the issues before the court in
a forfeiture order are separable from other aspects of the case.
Statement of Issues Presented for Review
1. Whether the District Court erred; first, in ordering
unspecified restitution "under the auspices of the probation
department," and second, in allowing the government's Motion for
Forfeiture pursuant to that order.
2. Whether this Court should, on its own motion, review the entire
record on Defendant's behalf for plain error.
Statement of the Case
The Defendant-Appellant, Michael Williams, was arrested on
March 18, 1988 and charged initially with conspiracy to commit
mail
fraud based upon unpaid invoices submitted to a corporation of
which he was an officer. On information and belief, no other
alleged coconspirator was ever prosecuted. On August 11, 1988
Williams signed a plea of guilty to one count of mail fraud under
18 U.S.C. 1341, and one count of wire fraud under 18 U.S.C.
1343 in the Federal District Court for the Northern District of
Illinois, Eastern Division (Leinenweber, Judge). Defendant was
sentenced to 2 years in prison and five years of probation to be
served consecutively, and a restitution order to be determined by
the probation department. The order was not specific as to the
amount paid or as to the last payment date. Williams served the
prison term and was released, completing his probation without
incident. In March of 1994, six years after the original arrest,
the government moved for forfeiture of certain personal property
previously seized. Williams, through his counsel, Robert G. Clarke,
opposed the motion in writing (Appendix p. 21-23), but the District
Court, per order of Judge Leinenweber, granted the government's
motion without hearing argument by defense counsel. The
Defendant-
Appellant then requested that counsel be appointed for the purpose
of appealing the order. The request was denied, and Defendant-
Appellant filed a notice of appeal pro se.
Williams then filed three motions on May 10, 1995; (1) for an
order to the FBI to produce all of the Defendant's seized property
for inspection by the court, (2) for an order to the FBI to release
the Defendant's file under the Freedom of Information Act, and (3)
for an order to use Registered Air Mail for all Court
correspondence. All of these motions were denied by this court.
Williams filed a Third Party Minor Claim to Ownership of
Unlawfully Seized property on May 16, 1995, and six motions on
July
14, 1995:
(1) for a Copy of the Government's Answer,
(2) to Dismiss the Motion to Authorize Sale of Coins and Disburse
Proceeds, and to Return Property to Defendant,
(3) for a Subpoena of Records
(4) for a transfer of jurisdiction
(5) to submit a Financial Affidavit
(6) to make transcripts a part of the record.
All of these motions were denied. Williams has also repeatedly
requested an enlargement of time for the filing of this brief and
copies of the record below.
On August 16, 1995 the Court issued a requirement that the
appellant's brief be submitted by September 25, 1995. In its notice
to the Defendant, the Court stipulated that the usual allowance for
mail delays would not be granted.
Summary of Argument
1. The District Court erred in granting the government's motion
for forfeiture of his personal property for purposes of restitution
insofar as restitution orders pursuant to 18 U.S. 3663, as
interpreted by the Seventh Circuit, must meet certain criteria of
clarity in amounts, scheduling of payments, and judicial oversight,
none of which was applied correctly by the District Court.
2. Because the Defendant-Appellant is not an attorney, he has been
unable to present his case or prepare his appeal in a professional
manner. This Court is asked to review the entire record below for
plain error. Given the flawed order of restitution issued by the
District Court, the failure of defense counsel to challenge that
order, and a series of alleged irregularities throughout the
proceedings, a review of the entire record by this Court is
appropriate in order to prevent a miscarriage of justice.
Argument
Statement of Facts
Michael Williams, a businessman, composer, and political
activist, was at his Colorado home on March 18, 1988, when the
FBI arrested him and seized a number of items of personal
property. Mr. Williams was charged as a co-conspirator to commit
mail and wire fraud under 18 U.S.C. 1341, 1342, and 1343. The
government alleged that Williams, as President of Pioneer America,
Inc.,(hereinafter Pioneer) a Delaware corporation, conspired to
defraud creditors. At that time, Pioneer owed approximately
$230,000. On information and belief, no other officer of Pioneer
was prosecuted, and no co-conspirator was available as a witness.
On August 18, 1988, Williams pled guilty to one count of mail fraud
(18 U.S.C. 1341) and one count of wire fraud (18 U.S.C. 1343) in
the Federal District Court for the Northern District of Illinois,
Eastern Division. He was sentenced to two years in prison and five
years of probation, to be served consecutively. He was ordered to
pay restitution as determined by the United States Probation
Department. He served his prison sentence, and completed the full
term of probation without further incident. In June of 1991, he
requested and received permission to travel to Switzerland in order
to marry his fiancee, a Swiss citizen.
In March 1994, the Government moved to allow the forfeiture
and sale of Williams' seized personal property, apparently pursuant
to the order for restitution. The Government's motion was allowed,
although opposed by defense counsel Robert Clarke, however, the
motion was allowed. The Defendant then filed a pro se appeal in
June 1994.
I. Whether the District Court erred; first, in ordering
unspecified restitution "under the auspices of the probation
department," and second, in allowing the government's Motion for
Forfeiture pursuant to that order.
A. The Order of Restitution was flawed insofar as it was too vague
and left too much discretion to the probation department.
Restitution awards are criminal penalties. United States v.
Savely, 814 F. Supp. 1519, D. Kansas 1993, reconsideration granted
827, F. Supp. 668 and for that reason must be ordered in
accordance with criminal statutes. Restitution orders are governed
by 18 U.S.C. 3663(a)(1) which states:
The court, when sentencing a defendant convicted of
an offense under this title or under subsection (h), (i),
(j), or (n) of section 902 of the Federal Aviation Act of
1958 (49 U.S.C. 1472), may order, in addition to or in
lieu of any other penalty authorized by law, that the
defendant make restitution to any victim of the offense.
The Seventh Circuit has consistently interpreted this
provision to require that the District Court determine the amounts
and terms of payments, and specify the beginning and ending
periods
of scheduled payments, while retaining jurisdiction and oversight
over the entire process. The Court has specifically criticized and
vacated any and every order of restitution which vaguely allows
the
terms and amounts of restitution to be "worked out," or determined
by the Probation Department.
Although not available in written form to the Defendant as a
separate document, the Order of Restitution of the District Court
(Judge Leinenweber) follows, as copied from the Transcript of the
Sentencing Hearing, Page 91, lines 15-18:
"...you are to make restitution to the proper parties on
a best efforts basis, as worked out through the auspices
of the Probation Department. I don't intend to make it
impossible for you and your family to live."
A similar order of restitution was found to be inappropriate
in United States v. Boula, 997 F. 2d 263, 269 (7th Cir. 1993).
Boula pled guilty to three counts of mail fraud and was sentenced
by Brian Barnett Duff, J. to 62 months imprisonment, three years of
supervised release, and $5 million dollars of restitution "in a
manner to be suggested by the probation officer and when [they
have] the capacity to do so." On appeal, the Seventh Circuit,
(Coffey and Easterbrook, Circuit Judges and Lay, Senior Circuit
Judge) reviewed the matter. Judge Coffey, writing for the Court,
found that "too much discretion in the management of the
restitution order was left in the hands of the probation
department." Judge Coffey found that the District Court should
have ordered the Defendants to begin paying restitution upon
release from prison, with the understanding that if the original
restitution order proved to be insurmountable, the Defendants and
probation officer should return before the court.
The Seventh Circuit reiterated this point as recently as March
24, 1995 in United States v. Sung, 51 F. 3rd 92, 94 (7th Cir.
1995). In that case, Kim Tae Sung was convicted of selling
counterfeit commodities under 18 U.S.C. 2320(a). The case was
tried before Judge Duff, and Sung was sentenced to a prison term
and ordered to pay $2,160 in installments "to be determined by
the
probation office." On appeal, the Seventh Circuit (Flaum and
Easterbrook, Circuit Judges, and Crabb, District Judge> reviewed
the order. Judge Easterbrook, for the court, opined
when a court permits the defendant to make restitution in
installments, the judge must specify the schedule; this
task may not be left to the staff. E.g. , United States
v. Ahmad, 2 F. 32 245, 248-49 (7th Cir. 1993); United
States v. Boula, 997 F. 2d 263, 269 (7th Cir. 1993. Boula
disapproved an identical provision by the district judge
who presided in this case. The order of restitution must
be reconsidered.
The same position was taken on April 27, 1995 in United States
v. Mohammad 53 F. 3rd 1426, 1438-1439 (7th Circuit, 1995).
Mohammad
was convicted of conspiracy and multiple counts of bankruptcy
fraud, mail fraud, wire fraud, and Currency Transaction Reporting
Act violations in a four-week jury trial before Judge Duff. He was
sentenced to a prison term of 92 months, a fine of $9,600, and
restitution of $3.2 million "in a manner to be determined by the
probation officer." Mohammad did not challenge the restitution
order, however, the Court (Goodwin, Ripple, and Manion, Circuit
Judges) on its own initiative, reviewed the record for plain error,
vacated the sentence, and remanded the case for further
proceedings. In his opinion for the Court, Judge Ripple stated:
a court abdicates its judicial responsibility when it
authorizes a probation officer to determine the manner of
restitution. (1438)
The court reviewed the body of case law concerning restitution
orders which has arisen in the 7th Circuit since the Boula
decision, and concluded:
Under the case law of this circuit, it is a serious
structural defect in the criminal proceedings. It
seriously affects the integrity of those proceedings. For
these reasons, the order of restitution entered against
Mr. Mohammad and Mr. Saleh is deficient.
The District Court's order in the present case was similarly
defective, using the same unacceptably vague language as the
orders
in Boula, Ahmad, Sung, and Mohammad.
In addition to the fact that the District Court erroneously
delegated the oversight of William's restitution to the Probation
Department, the amount of restitution to be paid was unspecified.
In United States v. Brothers, 955 F. 2d 493, 498, (7th Cir.
1992) citing United States v. Lovett, 811 F.2d 979, 990 (7th Cir.
1987),Judge Kanne of this Court stated, "if restitution is ordered,
the amount must be exact and not approximate."
When restitution is applicable, payments are to be made over
a period of not more than 5 years at most, nor beyond the period of
the Defendant's probation. United States v. Diamond, 969 F. 2d 961,
(C.A. 10 1992). The actual period must be included within the
restitution order. United States v. Fountain, 768 F. 2d 790 (7th
Cir. 1985), rehearing denied, supplemented 777 F. 2d 344,
certiorari denied 106 S.C. 1647, 475 U.S. 1124, 90 L.Ed. 2d 191.
Clearly, the restitution order in the court below failed in
every respect to meet the standards set forth under 18 U.S.C.
3663, as interpreted by the Seventh Circuit. The failure to meet
these standards necessarily requires reversal of the order, and a
review of the Order of Forfeiture and any proceeds the government
may have distributed thereunder.
B. A Forfeiture order predicated on a flawed restitution order must
be reviewed.
In reviewing an order of forfeiture, predicated upon an order
of restitution, the Court must determine first whether an agreement
to pay a specific amount of restitution was in force, and secondly,
whether the restitution to be paid corresponds to the offense of
conviction. United States v. Braslawsky, 951 F. 2d 149, 150 (7th
Cir. 1991).
The District Court has no authority to order forfeiture of
property to pay restitution six years after a defendant is
convicted. If an order is granted it must be granted at the time of
the sentencing hearing. This is the plain meaning of the language
in 18 U.S.C. 3663(a), United States v. Pendergast, 979 F. 2d 1289
(8th Cir. 1992). "There is no statutory or other provision that
authorizes a sentencing court to leave the question of restitution
open to an uncertain date" United States v. Sasnett, 925 F. 2d 392,
399-400 (11th Cir. 1991). Consequently, the only basis on which the
District Court could have granted the government's request for
forfeiture would have been the enforcement of the flawed
restitution order.
In the present case, there was no agreement to pay an exact
sum in restitution, no schedule of payments, and no indication of
the date on which those payments were to terminate. The holding
in
Pendergast would indicate that such an order is fatally defective,
and therefor not enforceable.
Because the Restitution Order was defective, it was not
enforceable, and the District Court erred in granting the
forfeiture of personal property as part of its enforcement.
C. Enforcement of a Forfeiture Order under the present
circumstances should be barred by the doctrine of laches.
Even if the Order of Restitution were valid, and the Order of
Forfeiture appropriate, it would be unjust to allow the government
to wait six years after the seizure of property and sentencing of
the defendant to request forfeiture. The decision to use
forfeiture powers in February 1994 amounts to laches under the
facts and circumstances of this case.
The property in question was seized in March, 1988. The
government was at all times aware of the whereabouts of the
Defendant. His restitution order was subject to his ability to pay.
In the absence of a specified amount to be paid or a specified date
for the payments, it was inappropriate to forfeit seized property
to be "distributed" to purported victims.
The Defendant served his sentence and properly completed his
period of probation. He has left the United States, married a Swiss
citizen, and is raising a family. His income as a language tutor is
insufficient to generate large sums of money, and his wife is
currently unemployed following the birth of their child. He has
never had less of an ability to pay restitution than at present.
None of the seized items was purchased from proceeds of the
allegedly fraudulent business. The forfeiture, six years after
seizure, four years after sentencing, and within eight months of
the end of the Defendant's probation, is at best inappropriate and
unduly burdensome.
II. This Court should review the entire record below because of
the strong possibility of other substantive and procedural errors
resulting in substantial injustice to the Defendant-Appellant.
Issues not raised in the trial court are subject to review
for plain error. Fed.R.Crim.P. 52(b) "Plain errors or defects
affecting substantial rights may be noticed although they were not
brought to the attention of the court." United States v. Gomer, 764
F. 2d 1221, 1224 (7th Cir. 1985), United States v. Brothers, supra
497.
In United States v. Seacott, 15 F. 3rd, 546, 551 (7th Cir.
1993), this court noticed a sentencing guideline error not raised
by the defendant at trial. In United States v. Simpson, 8 F. 3rd,
546, 551 (7th Cir. 1993), this court again followed the plain error
standard of review because the defendant failed to object to issues
raised on appeal.
This Court is asked to consider whether the Defendant-
Appellant had ineffective assistance of council. According to
William's recollection, Mr. Stevens induced him to plead guilty
with the stipulation that he would be permitted to see his newborn
daughter, purportedly dying of spinal meningitis in Rome, Georgia.
Neither Mr. Stevens nor the Assistant United States Attorney
included this provision in the agreement, and Judge Marovich,
sitting temporarily on the day of sentencing, accepted the plea
with apparent reservations.
This Court is asked to determine whether the District Court
gave due consideration to the objections to Forfeiture raised by
attorney Robert Clarke on behalf of Mr. Williams (Appendix, pp 21-
23). According to Williams, the Court refused to allow oral
argument by defense Counsel Clarke when the matter was heard,
and
disregard attorney Clarke's written objections.
Conclusion and Relief Sought
Based on the foregoing, the Defendant-Appellant now requests
that the Order of Forfeiture be vacated, that this case be
remanded to the District Court for proceedings not inconsistent
with the applicable statutes, and the personal property of the
Defendant-Appellant or the proceeds from the sale thereof not be
disbursed before all issues before the Court are resolved.
Signed and submitted this ________ day of September, 1995.
By the Defendant-Appellant
______________________________
Michael Williams
Postfach 59
CH-3110 Msingen
Switzerland
pro se
Certificate of Service
I, Michael Williams, the Defendant-Appellant in the present case,
hereby certify that I have served two copies of the foregoing brief
upon counsel for Appellee United States of America by directing my
agent to have the same delivered by Federal Express to James B.
Burns, United States Attorney, or Carol A. Davilo, Assistant United
States Attorney, 219 South Dearborn Street, Chicago, IL 60604, USA,
costs prepaid, this ___ day of September, 1995.
_____________________
Michael Williams
Appendix to Appellant Brief
Table of Contents
1. Motion for Forfeiture of Property.......................18
2. Defendant's Response to Forfeiture Motion...............21
3. Order of Forfeiture.....................................24
4. Corrections of Sentencing Hearing Transcript............26
5. Proposed Order to Vacate Order of Forfeiture............30
6. Statement that all required materials are in Appendix...31
MICHAEL WILLIAMS )
Postfach 20 )
CH-3112 Allmendingen bei Bern )
Switzerland )
CORRIGENDUM OF TRANSCRIPT:
REPORT OF PROCEEDINGS - PLEA BEFORE THE HONORABLE
GEORGE M. MAROVICH
The following is a Corrigendum of the official transcript of
REPORT OF PROCEEDINGS - PLEA BEFORE THE HONORABLE GEORGE
M. MAROVICH which Geraldine D. Monahan, a/k/a Geri Monahan,
Official Court Reporter, recorded on 11. August 1988 at 3:30 p.m.
and submitted on 7. October 1994. This Corrigendum is prepared
without the benefit of the audio tape recording which was made of
the hearing, which, despite my persistent requests, has not been
made available to me. The purpose of this Corrigendum is to
perfect the highly inaccurate official transcript to the best of
my ability, within the confines of my limited means.
On 14. November 1994, I finally received the transcript from
Geraldine D. Monahan which I had been requesting since 11. August
1988, and found it to be highly inaccurate. There are substantial
errors in the transcript, including, but not limited to:
1.) Omitted: Hon. George M. Marovich asking Assistant U.S.
Attorney Laurie Barsella who all the other names (besides mine)
on the indictment are, and why they aren't in court with me; why
I'm the only one there, facing the charges. His statement, as I
recall, was: "Who are all these other names? Why aren't they
here?
Why is this man standing here all alone?" Ms. Barsella
responded: "Uh, they're his co-conspirators, your Honour." Judge
Marovich then asked "Then why aren't any of them here?" Ms.
Barsella did not respond.
2.) Omitted: Hon. George M. Marovich asking Assistant U.S.
Attorney Laurie Barsella: "What the hell are you trying to do,
send an innocent man to prison?"
3.) Omitted: All open, audible discussions between my court-
appointed attorney, William J. Stevens and I, which have been
marked "soto voce".
4.) Omitted: Hon. George M. Marovich asking me exactly what had
transpired and my refraining from answering, and suggested that
he ask Assistant U.S. Attorney Laurie Barsella what happened,
since she was the one accusing me. When she began to recite what
I believe was the indictment, not speaking from memory, Judge
Marovich became angry, and told her that he wanted to hear me
answer the question, not her.
5.) Omitted: On page 5, line 9, Hon. George M. Marovich asking
me: "And are you satisfied with the advice and efforts of your
attorney?" Before reluctantly answering "Yes" on line 11 of the
same page, I intentionally paused for a great length of time, as
I emphatically nodded my head "no" several times, and my court-
appointed attorney, William J. Stevens, twisted my arm, and
warned me to answer "yes". The pause was of such great length
that it should properly be recorded in the transcript as "lengthy
pause". It does not. On the contrary, it reads as if I
immediately answered "Yes", when in fact, I hesitated an enormous
length of time.
6.) Omitted: On approximately page 18, line 7, there should
appear Assistant U.S. Attorney Laurie Barsella's statement to the
effect: "He participated in a scheme to defraud, Your Honour".
It has been completely omitted.
7.) Omitted: When Judge Marovich explained my rights to me,
including my right to a trial by jury, I loudly advised William
J. Stevens that I wished to have a trial, and, if possible,
immediately. This important statement has been completely
omitted, or hidden behind a false "soto voce".
There are also some segments in the transcript which I would like
to draw attention to, including, but not limited to:
8.) On page 14, line 8, Assistant U.S. Attorney Laurie Barsella
states that "As a further part of the scheme, the defendant
telephoned a number of businesses throughout the United States
and identified himself using various names and represented that
he had computer paper to sell."
Ms. Barsella was well aware that the corporation I was
President of, Pioneer America Corporation, sold its product
almost exclusively to one major corporation. There was almost no
reason to seek additional customers, since this
- 2 -
one large account purchased nearly all of the corporation's
product. She was also aware that, in the event someone associated
with the corporation was going to be selling any products
included in its product line, it would not be me. She also knew
who it would have been, had this been the case.
Ms. Barsella also refrains from mentioning the names of
other individuals, one in particular, and his associates, who
would have been far more likely to be "telephoning a number of
businesses throughout the United States", representing that they
had computer paper to sell than me. I had no control over such
persons, and almost no knowledge of anything they were doing. The
aforementioned individual, whom I have never even met, resided
in
a distant state, far from my home in Colorado. Although Ms.
Barsella was keenly aware of this, she chose, as Judge Marovich
observed, to force me to take all the blame for actions she
defined as "crimes". I was so appalled at one particular "crime"
that I was accused of, in the state of Texas, that at my
sentencing hearing, I insisted on taking the stand in my own
defense, since my court-appointed attorney was allowing so many
lies to be told. I was accused of defrauding a corporation in
Texas out of computer paper, however, as I emphatically explained
to Judge Leinenweber, under oath, this was absolutely not the
case, at all. Normal business transactions were turned
into crimes, and this is the real crime.
9.) On page 15, line 25, through page 16, line 8, Assistant U.S.
Attorney Laurie Barsella states that "In addition, as part of the
scheme, on July 16, 1986, the defendant used a false name, Phil
Ors, of Nexus Laboratories in connection with mail box at
Accurate Message Center in Adios, Illinois. That mail box was
used to conduct and carry on the scheme that was described above,
and the use of that mail box violates Title 18, United States
Code, Section 1342. Our evidence on that, of course, would be
documents from the Accurate Message Center as well as from an
employee of the Accurate Message Center."
On page 16, lines 20 through 23, my court-appointed attorney
(after a discussion with me improperly noted as "soto voce")
states: "He says he didn't use the name Phil Ors or open the
answering services, but the analysis is substantially correct.
And he concedes that the government's-- the rest of the
recitation is completely accurate. I most certainly did not
"concede" that the "recitation" was "completely accurate". Those
are Mr. Stevens' words, not mine. This is another attempt by Mr.
Stevens to force guilt and responsibility on me, rather than
defend me.
- 3 -
As I have written Hon. George M. Marovich previously, "The audio
recording, unlike a transcript written over six years later, is
one-hundred percent accurate, and any changes or alterations in
it would be easily distinguishable by an audio expert. I consider
this audio recording as evidence pertaining to, among other
issues, the grossly unethical conduct of my court-appointed
attorney, William J. Stevens, and request that you order
the audio recording to be seized and independently stored in a
secure location to be held as evidence."
I am willing to personally prepare an accurate written transcript
if the Court will provide me with a copy of the audio transcript.
Respectfully submitted,
MICHAEL WILLIAMS, in Pro Se
Postfach 20
CH-3112 Allmendingen bei Bern
Switzerland
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Before
Hon. RICHARD A. POSNER, Chief Judge
UNITED STATES OF AMERICA ] Appeal from the United
Plaintiff-Appellee, ] States District Court for
] the Northern District of
No. 94-2483 v. ] Illinois, Eastern Division
] Division.
]
MICHAEL WILLIAMS, ]
Defendant-Appellant. ] No. 88 CR 204
]
] Harry D. Leinenweber,
Judge.
O R D E R
This matter came before the Court on Appeal
by the Defendant-
Appellant Michael Williams. The Court decides
(1) that the Forfeiture Order is hereby VACATED,
(2) the Defendant-Appellant sentence as it relates to restitution
is VACATED,
(3) The property listed in the Order of Forfeiture or the proceeds
thereof are to be held by the District Court pending the outcome of
any further hearings.
(4) This case is REMANDED to the District Court for proceedings not
inconsistent with our precedents.
ENTER:
_________________________
Statement that Appendix Contains Al
l Required Materials
The Defendant-Appellant, Michael
Williams, has compiled this
Appendix to the best of his ability and included therein all of the
materials which he believes to be necessary for the purposes of
this appeal.
