U.S. v. Fox

• Citation: 941 F.2d 480
• Decision Date: 15 August 1991
• Docket Number: 88-2107,Nos. 88-1305,s. 88-1305
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Charles FOX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 480

941 F.2d 480

UNITED STATES of America, Plaintiff-Appellee, v. John Charles FOX, Defendant-Appellant.

Nos. 88-1305, 88-2107.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 28, 1991.

Decided Aug. 15, 1991.

Elsa Lamelas, Steven M. Biskupic, argued, Patricia J. Gorence, Stephen J. Liccione, and Matthew L. Jacobs, Asst. U.S. Attys., Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Jerry B. Kurz, argued and Kathryn Hall, Hall & Kurz, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, and CUDAHY and RIPPLE, Circuit Judges.

BAUER, Chief Judge.

John Charles Fox met Robert "Meatball" Reiswitz when they were both incarcerated in Kettle Moraine State Prison in Wisconsin. The two lost touch, but ran into each other at a Milwaukee blood bank in May 1987. Evidently, they did more than reminisce about the good old days in prison or discuss their blood types. What followed from this renewed acquaintance was a robbery spree in the Milwaukee area during the summer of 1987. Reiswitz identified the businesses to be robbed and drove the getaway car; Fox pulled the jobs. On June 30, Fox entered the Lincoln Savings & Loan Association with a handgun and left with a lot of cash. Needless to say, he did not have an account. On July 3, Fox robbed Reliance Savings & Loan. He came back there for a second robbery on July 10 before returning home to Kentucky. He also hit the Marshall and Ilsley Bank in Glendale twice in July.

On July 27, Fox and Martha Rose Coffman, who lived just across the border in New Albany, Indiana, traveled up to Milwaukee; Reiswitz accompanied them on his motorcycle. The three rendezvoused at the Russell Road exit of I-94, where Reiswitz gave Fox and Coffman a rundown of how to rob the North Shore Savings and Loan Association in Milwaukee. Acting on Reiswitz's plan, Fox and Coffman robbed the bank on July 28. The three returned to their respective states after divvying up the loot.

On July 30, Fox and Coffman again drove up from Kentucky and Indiana to Milwaukee with Reiswitz. "Meatball" instructed them how to carry out a robbery of the Republic Savings & Loan. (One could speculate that this rag-tag "Bonnie and Clyde" gang might have played a small part in the current savings and loan crisis.) The next day, Fox and Coffman acted on Reiswitz's instructions and robbed the bank at gunpoint. As before, they high-tailed it back to Kentucky and Indiana and, after a time, returned to Milwaukee for yet another meeting with Reiswitz. This trip, they were accompanied by Gary Reed, who had been threatened by Reiswitz into participating as the getaway car driver.

On August 6, 1987, Fox and Coffman entered Republic Savings. They grabbed some money, but dropped most of it on the floor. Also, while fleeing the bank, Coffman accidently shot herself in the arm. It was like a scene from "The Gang That Couldn't Shoot Straight."

The next job, however, proved to be Fox's total undoing. On August 11, 1987, he held up the North Shore Savings and Loan with his .32 caliber semi-automatic pistol "Rosco." A Milwaukee police officer was hidden in a closet behind the teller line and watched Fox and Rosco commit the crime. He also saw Rosco's barrel pointed in his direction. The officer pursued Fox, and shot him above the eye, in his eye, and in the back. Although Fox had pointed his gun at the officer, he never fired: Rosco was rigged not to shoot. Fox was taken into custody and the $33,683 nabbed during the robbery was recovered.

After his arrest and release from a hospital, Fox gave a statement to the Milwaukee police and to the FBI admitting the bank robberies, as well as the robberies of four convenience stores, three gas stations, a tavern, and a pizza parlor. He told the officers that Reiswitz had shown him a layout of Reliance Savings and had provided him with a .32 caliber pistol to commit the robbery. He also indicated that Reiswitz had driven the getaway car in most of the robberies and that they split the money equally.

On October 20, 1988, a federal grand jury charged Fox, Reiswitz, Reed, and Coffman with the North Shore and the two Republic Savings robberies in a 16-count superseding indictment. Fox was charged with conspiracy to execute armed bank robberies and to use firearms during crimes of violence in violation of 18 U.S.C. § 371, armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and use of firearms to commit crimes of violence in violation of 18 U.S.C. § 924(c). In addition, Fox, as a convicted felon, was charged with possession of a firearm in violation of 18 U.S.C. § 922(g). On October 23, 1987, the United States filed an information invoking the enhanced penalty provisions of 18 U.S.C. § 924(e)(1), which provides that a convicted felon who violates 18 U.S.C. § 922(g) and who has three previous convictions for violent felonies must be imprisoned for a minimum of fifteen years.

Fox faced a total of 225 years in prison, with fifty years mandatory, non-parolable, and consecutive to each other. He entered into a written plea agreement by which he reduced his maximum exposure to forty-five years, and his mandatory minimum consecutive sentence from fifty to twenty years. In exchange for the government's dismissal of the remaining counts, Fox agreed to plead guilty to carrying a firearm in the commission of the Republic Savings & Loan robbery on August 6, 1987, armed bank robbery of the North Shore Savings & Loan on August 11, 1987, and to being a previously convicted felon in possession of a firearm. Fox also admitted that he had three previous burglary convictions, thereby triggering the penalty enhancement provision on his plea to possession of a firearm. Fox also agreed to cooperate with the government and to testify truthfully as its witness before the grand jury and at any subsequent trials.

On December 14, 1987, Fox entered his plea of guilty pursuant to the plea agreement. The court asked him to describe in his own words the crimes to which he was pleading and what he understood the penalties for those charges to be:

COURT: The [sic] Count 13 charges you with the use of a firearm in connection with the commission of Republic Savings and Loan robbery; is that correct?

FOX: That's correct, Your Honor.

COURT: All right. Now, with reference to Count 13, what do you understand the maximum penalties to be for that offense?

FOX: Five years imprisonment is mandatory, and--and I may obtain probation or parole--may not obtain, excuse me.

* * * * * *

COURT: All right. And with reference to Count 14, what do you understand the maximum penalties to be for the armed bank robbery charge that occurred on August 11th?

FOX: 25 years imprisonment, a maximum fine of $250,000, plus assessment of $50.

COURT: All right. And with reference to Count 16, what do you understand the maximum penalties to be?

FOX: Life imprisonment. 15 years to life imprisonment.

* * * * * *

COURT: Has anybody made any predictions to you to what the Court's actual sentence will be in this case?

FOX: No.

Plea Hearing Transcript at 9-11. The court also asked Fox to describe in his own words his participation in the crimes. Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, the court apprised Fox of the fundamental rights he was surrendering in pleading guilty: the right to plead not guilty, the privilege against compulsory self-incrimination, the right to a jury trial, and the right to confront his accusers. The court failed to admonish Fox that payment of restitution could be made a requirement of the sentence resulting from his plea of guilty. Before accepting his plea, it did admonish him that he could be liable for a hefty fine:

COURT: And you also understand on each of these three counts, you're subject to a fine of $250,000 on each count. Do you understand that makes a total fine potential of $650,000? Do you understand that?

FOX: Yes, I do, Your Honor.

Plea Hearing Transcript at 13.

In addition to Fox, Coffman and Reed also pleaded guilty. As a condition of their plea agreements, all three testified as government witnesses at Reiswitz's trial. He was convicted of conspiracy, aiding and abetting armed bank robberies, and aiding and abetting the commission of a crime of violence with a firearm. On February 28, 1991, this court heard oral argument of Fox and Reiswitz's separate appeals. We affirmed Reiswitz's conviction in an opinion issued this day. See United States v. Reiswitz, 941 F.2d 488 (7th Cir.1991).

Fox thus fulfilled his end of the bargain. When it came time to sentence him, the court noted that his testimony at Reiswitz's trial had been "factual and truthful." Nevertheless, the court sentenced Fox to the maximum twenty-five years' imprisonment for armed bank robbery to be followed by the mandatory, non-parolable five years' imprisonment for committing the North Shore Savings robbery with a gun. Fox received another fifteen years for being a felon in possession of a firearm for a total of forty-five years. The court ordered him to pay a special assessment of $150 and to make restitution of $18,432.37 before the expiration of his sentence, to be reduced by any amounts paid by Fox's codefendants. (Although almost $72,000 had been taken in seven bank robberies, this $18,432.37 apparently was all that had not been recovered.) Since his incarceration, Fox has filed numerous motions to the district court asking it defer payment of restitution. The court repeatedly has treated these requests as motions for modification of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure and has denied them each time.

In February 1988, Fox filed his original appeal of his sentence and conviction, No. 88-1305. In June 1988, Fox filed a pro se notice of appeal of the district court's denial of his motion for an order to suspend for two years the payment of a special assessment and restitution, No. 88-2107. Both of Fox's appeals were consolidated for...