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.