U.S.A v. Diekemper

• Decision Date: 28 April 2010
• Docket Number: No. 09-2081.,09-2081.
• Citation: 604 F.3d 345
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Joseph DIEKEMPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

604 F.3d 345

UNITED STATES of America, Plaintiff-Appellee,v.Joseph DIEKEMPER, Defendant-Appellant.

No. 09-2081.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 2010.

Decided April 28, 2010.

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Jennifer Hudson (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.

Gilbert C. Sison (argued), St. Louis, MO, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and KANNE, Circuit Judge, and KENNELLY, District Judge.^*

KANNE, Circuit Judge.

Joseph Diekemper pled guilty to conspiracy to commit bankruptcy fraud, conspiracy to commit mail fraud, making false statements for the purpose of influencing the United States Department of Agriculture (“USDA”) Commodity Credit Corporation, and perjury. Diekemper's wife and co-conspirator, Margaret Diekemper, was sentenced first and received two years' probation for her involvement in the conspiracy. As a condition of that probation, Mrs. Diekemper was prohibited from all contact with her husband during those two years. Diekemper was sentenced subsequently, and after receiving a four-level enhancement for his leadership role, he received a within-guidelines sentence of 120 months' imprisonment.

Diekemper appeals his sentence, alleging that (1) his wife's probation condition violates his fundamental right to a marital relationship; (2) the district court judge's failure to recuse himself for bias violates Diekemper's right to due process; (3) the district court's application of the sentencing enhancement was in error; and (4) the district court's failure to weigh all of the sentencing factors in 18 U.S.C. § 3553 was in error. We affirm.

I. Background

Joseph and Margaret Diekemper were dairy farmers who had been married for thirty-five years. The couple filed for bankruptcy in May 2004. For close to four years thereafter Diekemper engaged in a scheme to conceal assets from the bankruptcy court. Eventually the government discovered Diekemper's conduct and indicted him on twenty-one counts. He ultimately pled guilty to five of the charged counts.

At Diekemper's plea hearing, he signed a stipulation of facts admitting to a variety of illegal conduct, including: undervaluing property and assets by more than 2.5 million dollars, hiding farm equipment on friends' properties, titling and selling vehicles and equipment in others' names, using the mail service to effectuate these transfers, failing to disclose financial information to the bankruptcy trustee, fraudulently obtaining agricultural subsidies from the USDA, and urging others to lie under oath during his bankruptcy proceedings. In the interim between Diekemper's plea hearing and his sentencing hearing, Mrs. Diekemper was sentenced for her participation as a co-conspirator in the scheme. A condition of her two-year probation was that she refrain from all contact with Diekemper during those two years.

One month after Mrs. Diekemper's sentencing, Diekemper had his own sentencing hearing. During that hearing, Diekemper did not challenge his wife's probation condition. ( See Appellee's App. at 39) (“[M]y understanding of the ruling was that [Mrs. Diekemper] was not permitted contact.... And I can stand here and question the validity of that judgment, I'm not going to do that.” (statement by Diekemper's counsel)). But Diekemper did contest the four-level enhancement to his sentence for his role as the organizer of an extensive criminal activity, pursuant to U.S.S.G. § 3B1.1(a). Ultimately, however, the district court found the four-level enhancement appropriate and sentenced Diekemper to 120 months' imprisonment for his mail fraud and 60 months' imprisonment on each of the other counts, with each sentence to run concurrently.

II. Analysis

Diekemper now challenges various aspects of his sentencing. We address each of his contentions in turn.

A. Mrs. Diekemper's Probation Condition

Diekemper first argues that his wife's probation condition violates his fundamental right to a marital relationship. Although the government urges us to find that Diekemper waived this argument through his attorney's statement at sentencing (and indeed, he may have), we need not address the issue of waiver because Diekemper's argument is not properly before us in the first instance, and in any event, Diekemper lacks standing to pursue it.

To raise a claim before an Article III court, a litigant must present a case or controversy that can be properly adjudicated by the federal courts. O'Sullivan v. City of Chicago, 396 F.3d 843, 853 (7th Cir.2005). To be properly before the federal courts, a litigant must have timely appealed a final judgment see generally Fed. R.App. P. 3-4; Fairley v. Andrews, 578 F.3d 518, 521 (7th Cir.2009) (“The only prerequisites to appellate jurisdiction are a final judgment and a timely notice of appeal.”), and have standing to raise the challenged issue Michigan v. U.S. Environmental Protection Agency, 581 F.3d 524, 528 (7th Cir.2009). A litigant has standing when he demonstrates: “(1) an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of ...; and (3) a favorable decision will likely redress the injury.” O'Sullivan, 396 F.3d at 854 (internal quotation marks omitted).

Diekemper's argument fails at its inception because the probation condition with which he takes issue was decided in an entirely different case. He is appealing the final judgment in his own case not the final judgment in Mrs. Diekemper's case. Mrs. Diekemper neither took issue with her probation condition nor appealed her sentence. And that judgment is not now before us. We therefore have no ability to reach the probation condition because the judgment imposing that condition is not on appeal.

Even assuming that we could examine Mrs. Diekemper's probation condition, we fail to see how Diekemper can prove causation and redressability, which, for purposes of this case, seem readily intertwined. Although the condition was imposed on his wife's probation, Diekemper argues that he has standing because his marriage is affected by the terms of that condition; in essence, he seems to argue that being “affected” by the condition is enough to satisfy the three standing requirements. But what Diekemper fails to realize is the mere fact that he may suffer the effects of his wife's probation condition does not confer upon him Article III standing.

Diekemper is currently serving a prison sentence of 120 months. Without some affidavit from Mrs. Diekemper that absent her probation condition she would visit her husband, we have no way of knowing that she would in fact do so. Without any corroboration, Diekemper's own statement that his marriage is affected because his wife cannot visit him is unavailing. We are not at the pleading stage of the case, where general allegations of fact are enough to withstand a challenge. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 496 (7th Cir.2005). Instead, “each element [of standing] ... must be supported by more than unadorned speculation.” Plotkin v. Ryan, 239 F.3d 882, 885 (7th Cir.2001).

Certainly, the district court's sentence prohibiting Mrs. Diekemper from seeing her husband could be the reason she will have no contact with Diekemper for two years. But again, without some statement from Mrs. Diekemper to that effect, we have no way of knowing whether, in the absence of that condition, she actually would contact her husband. See Perry v. Village of Arlington Heights, 186 F.3d 826, 829 (7th Cir.1999) (explaining that standing requires “a causal relationship between the injury and the challenged conduct, such that the injury can be fairly traced to the challenged action of the defendant and not from the independent action of some third party not before the court.”).

And because they are so intertwined in this case, Diekemper's failure to show causation also amounts to a failure to demonstrate redressability. In the absence of a causation showing, we simply cannot assume that if we were to remand the injury complained of would be remedied. Plotkin, 239 F.3d at 885 (stating specifically that redressability must be proven). In fact, a sufficient remedy would unlikely be available even if causation were present because a remand would amount to a full resentencing, yet again subject to the district court's broad discretion-which includes the discretion to resentence Mrs. Diekemper thus preventing her from seeing her husband through incarceration. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (noting that when a claim depends on the independent actions of third parties, standing will be hard to satisfy). Because there are numerous deficiencies in his argument, Diekemper's challenge to his wife's probation condition must fail.

B. Recusal

Diekemper also asserts that the district court judge's failure to recuse himself for bias violated Diekemper's rights to due process and the recusal statute, 28 U.S.C. § 455. In the context of § 455, our standard of review varies based on the claim. In this circuit, review of a decision denying recusal under § 455(a) must be sought immediately through a writ of mandamus or it is waived. United States v. Troxell, 887 F.2d 830, 833 (7th Cir.1989). As for claims arising under § 455(b), if a claim is properly preserved, our review is de novo. United States v. Balistrieri, 779 F.2d 1191, 1203 (7th Cir.1985). “It is less clear under our case law whether we may review a refusal to recuse under section 455(b) when the argument is raised for the first time on appeal,” but assuming that we can, that review will be for clear error. United States v. Smith, 210...