221 F.3d 941 (7th Cir. 2000), 99-1153, Levine v United States

Docket Nº:99-1153 & 99-1236
Citation:221 F.3d 941
Party Name:ROBERT M. LEVINE, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
Case Date:July 19, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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221 F.3d 941 (7th Cir. 2000)

ROBERT M. LEVINE, Petitioner-Appellant,

v.

UNITED STATES OF AMERICA, Respondent-Appellee.

Nos. 99-1153 & 99-1236

In the United States Court of Appeals, For the Seventh Circuit

July 19, 2000

Argued May 11, 2000

Before COFFEY, EVANS and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge.

On January 11, 1991, a grand jury returned a five count indictment against the petitioner-appellant Richard M. Levine ("Levine"), charging him in Count one with conspiring to use interstate commerce to effect murder for hire and in Counts two through five with using interstate commerce to effect murder for hire, see 18 U.S.C. sec.sec. 371, 1958. At the conclusion of a jury trial, Levine was found guilty on all five counts and the court sentenced him to life imprisonment on Counts two through five and 60 months' imprisonment on Count one, ordering the sentences to run concurrently and concurrent with each other. After this court affirmed his conviction and sentence on direct appeal, see United States v. Levine, 5 F.3d 1100 (7th Cir. 1993), Levine filed a motion under 28 U.S.C. sec. 2255, seeking to "vacate, set aside or correct [his] sentence," which was denied by the district court on October 22, 1998. Thereafter, Levine appealed and a requested certificate of appealability was granted by the district judge on the sole

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issue of whether the court that tried Levine's case lacked jurisdiction due to the fact that the prosecuting Assistant U.S. Attorney ("AUSA") resided outside the judicial district (Northern District of Indiana). We AFFIRM the district court's decision.

I. BACKGROUND

For purposes of this appeal, only a cursory description of the facts is required.1 Levine and his brother Donald Levine were business partners. But after his brother and sister-in-law Marsha Levine accused him of embezzling and misappropriating funds, Levine hired an assassin to murder his brother, sister-in-law and nephew Mark Levine, in order that he might gain control of their joint business partnerships. After months of planning and preparation, on November 9, 1989, the assassin went to Donald's home in Munster, Illinois. While posing as a deliveryman, the murderer entered the house and shot and killed Donald and Marsha with a .357 Ruger handgun, while Mark was able to escape.

With Mark's help, law enforcement authorities were able to identify and arrest the killer, who eventually agreed to cooperate in the investigation and testify against Levine. After evading the authorities for nearly three months as a fugitive from justice, Levine decided to surrender on March 4, 1991.

Following his conviction and sentencing, this court affirmed Levine's direct appeal. Levine thereafter filed a motion under 28 U.S.C. sec. 2255, which the district court denied. Levine appealed and the district court granted a certificate of appealability on the sole issue of whether the court that tried Levine's case lacked jurisdiction due to the fact that the prosecuting AUSA resided outside the judicial district.

II. ISSUES

As identified in the certificate of appealability, Levine argues on appeal that he "is entitled to relief under 28 U.S.C. section 2255 because the Assistant United States Attorney [(AUSA)] who handled his case at the trial level did not live in the Northern District of Indiana."

III. DISCUSSION

Levine argues that he is entitled to relief from his conviction because the prosecuting AUSA resided...

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