Johnson v. U.S., 85-1378

• Decision Date: 14 January 1987
• Docket Number: No. 85-1378,85-1378
• Citation: 805 F.2d 1284
• Parties: Richard JOHNSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1284

805 F.2d 1284

Richard JOHNSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 85-1378.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 1986.

Decided Nov. 4, 1986.

Rehearing and Rehearing En Banc Denied Jan. 14, 1987.

Ada S. Cooper, Jenner & Block, Chicago, Ill., for petitioner-appellant.

Laurie J. Barsella, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for respondent-appellee.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and SWYGERT, Senior Circuit Judge.

POSNER, Circuit Judge.

This appeal from the denial of Richard Johnson's petition to vacate his sentence requires us to consider in what circumstances a criminal defendant can use 28 U.S.C. Sec. 2255, the federal prisoner's substitute for habeas corpus, to correct violations of Rule 32 of the Federal Rules of Criminal Procedure. As amended in 1983, Rule 32 requires that the report of the presentence investigation be shown to the defendant personally (not just to his lawyer) before sentencing, so that he can point out any factual inaccuracies to the sentencing judge. Violation of Rule 32 is reversible error (requiring that the defendant be resentenced) if a claim that the judge relied on inaccurate information in the presentence report in sentencing the defendant is made and not resolved. United States v. Eschweiler, 782 F.2d 1385, 1389 (7th Cir.1986); United States v. Rone, 743 F.2d 1169 (7th Cir.1984). And in administering this standard we have been reluctant to characterize violations of the rule as harmless. See United States v. Sosa, 789 F.2d 1257, 1264 (7th Cir.1986); United States v. Eschweiler, supra, 782 F.2d at 1390-91.

Johnson had been the president of a small-loan company that had gotten into financial trouble, and he had devised a scheme by which his company discounted phoney loan contracts to Walter E. Heller & Co., receiving some $141,000 in advances from Heller on these contracts. Johnson had involved his wife and mother, who were officers of his company, in the scheme. He pleaded guilty, after the effective date of the amended Rule 32, to two counts of mail fraud. At his sentencing hearing, when asked whether he had anything to say on his own behalf, Johnson said, "Only that I'm sincerely sorry, even more sorry that I involved my family in it." The presentence investigation report, which was shown to Johnson's counsel but not to Johnson, indicated that he had previously been arrested eight times, had served one year in a pretrial diversion program for having committed bank fraud and embezzlement, had served 10 days in jail for contempt of court, and had indeed involved his family in the scheme to defraud. It also described Johnson as a "mover" and "shaker" and indicated that Walter E. Heller & Co. claimed to have lost $919,000 as a result of the fraud. During the sentencing hearing the assistant U.S. attorney commented on a fraud that had not been mentioned in the presentence report, but defense counsel objected and the judge said he would not consider this incident in sentencing Johnson.

The judge then explained the basis on which he would sentence Johnson:

The court has always adhered to the view in most cases that everyone is entitled to a second chance. Mr. Johnson had his chance. He had his second chance. And he proved to the court and apparently to the government that he is not a proper candidate for probation. Albeit he did plead guilty, I also agree with the government. Mr. Johnson shows utterly no remorse whatever for his actions. I think to grant probation in Mr. Johnson's case would be a mockery. I don't know how else to characterize it. Not only did he engage in this scheme after he had been treated with compassion by the U.S. Attorney and after the court had treated him compassionately, he involved his family members, and that requires some period of incarceration in the court's humble opinion.

The court then sentenced Johnson to three years in prison to be followed by three years on probation, fined him $2,000, and ordered him to make restitution to Heller of $75,000.

About a year later Johnson, who had not appealed from his conviction or sentence, moved to vacate the sentence on the ground that the judge had violated Rule 32 and relied on false information in sentencing him. Johnson complained that listing his arrests in the presentence report without explaining their circumstances had given a misleading impression of his propensity to commit crimes, that the words "mover" and "shaker" should not have been used, that one of the charges mentioned in the report was not, in fact, on his record, and that Heller hadn't lost $919,000 and indeed had received $135,000 in interest payments from Johnson. The district judge, without resolving the accuracy of these charges, refused to vacate the sentence. He said that in sentencing Johnson he had not relied on any of the alleged misinformation in the presentence report, but had

relied only upon the incident involving the prior pretrial diversion program and not upon the list of prior arrests or the claimed loss of the victim. The Court's reference to a first chance given to the defendant by the court and by the U.S. Attorney can only refer to the pretrial diversion program since none of the other incidents contained in the presentence report involved federal crimes.... The only other factor mentioned was the involvement of defendant's family in the fraudulent loan scheme. Since neither of these two factors were challenged by the defendant as inaccurate, the Court did not rely on any controverted matter in passing sentence on the defendant and therefore no ground exists to grant him a new sentencing hearing.

Johnson moved for reconsideration, arguing that the presentence report had also been inaccurate in saying that he had involved his family in the scheme. The judge denied the motion for reconsideration, and this appeal followed.

Johnson makes three principal arguments: Rule 32 was violated; he was denied due process of law; he did not receive effective assistance of counsel.

1. Rule 32 was indeed violated, and we find the violation both inexplicable and inexcusable. We can understand how a busy district judge might overlook a recent amendment to the Federal Rules of Criminal Procedure but not how an assistant U.S. attorney could fail to draw the oversight to the judge's attention at the sentencing hearing so that the mistake could be corrected on the spot. If Johnson had appealed from the sentence we would have reversed and directed the judge to comply with Rule 32 and resentence Johnson.

But Johnson did not appeal. Instead he waited almost a year and then filed a motion for postconviction relief under section 2255. The grounds for relief under this section are narrower than the grounds for relief on direct appeal. On direct appeal a defendant can complain of any error committed in the district court, other than a harmless error; in a section 2255 proceeding he must show that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." The legislative history shows, and the Supreme Court has held, that the purpose of section 2255 was "simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined." Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 470, 7 L.Ed.2d 417 (1962) (footnote omitted). And, of course, habeas corpus is not a proper route for complaining about simple trial errors. The policy of finality in criminal cases, attenuated though it is compared to the policy of finality in civil cases, retains some strength--enough to make the direct appeal (which the defendant must file within 10 days of being sentenced--habeas corpus and section 2255 have no time limits) the exclusive route for complaining about errors that demonstrate neither "a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure." Id. at 428, 82 S.Ct. at 471. The Supreme Court applied this standard in Hill to the question whether a violation of Rule 32 could be corrected under section 2255, and held that it could not be. The Court reaffirmed Hill in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). See also United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979).

That would be the end of Johnson's case, at least insofar as it rests on the violation of Rule 32, but for language in Timmreck suggesting that while a "technical" violation of one of the Federal Rules of Criminal Procedure cannot be corrected in a proceeding under section 2255, conceivably a violation that "occurred in the context of other aggravating circumstances" could be. 441 U.S. at 784-85, 99 S.Ct. at 2087-88. The Court did not hold it could be; it merely left the question open. All that we understand by this language is that if the circumstances of violation are such that the defendant's right to due process of law has been denied, he may be able to complain under section 2255--not of the rule violation as such, however, but only of the violation of due process. We find it hard to imagine an error that was either "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure," yet would not violate the due process clause of the Fifth Amendment. And we also think these formulations come to much the same thing, for the most "rudimentary demand" of "fair procedure" is that the trial not be infected by the kind of error likely to lead to a miscarriage...