U.S. v. Neyens, 86-3161

• Decision Date: 16 September 1987
• Docket Number: No. 86-3161,86-3161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard T. NEYENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 156

831 F.2d 156

UNITED STATES of America, Plaintiff-Appellee, v. Richard T. NEYENS, Defendant-Appellant.

No. 86-3161.

United States Court of Appeals, Seventh Circuit.

Argued May 19, 1987.

Decided Sept. 16, 1987.

John Malvik, Rock Island, Ill., for defendant-appellant.

L. Lee Smith, Asst. U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Before WOOD, and CUDAHY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant Richard Neyens was charged in a sixteen-count indictment with crimes arising from his participation in various kickback schemes while he worked as a steel purchaser for John Deere & Co. (Deere). Pursuant to a plea agreement, Neyens pled guilty to six counts of the indictment involving violations of 18 U.S.C. Sec. 371 (conspiracy), 18 U.S.C. Sec. 1341 (mail fraud), 18 U.S.C. Sec. 1343 (wire fraud), and 18 U.S.C. Sec. 2314 (interstate transportation of property taken by fraud). The district judge imposed the fifteen-year maximum sentence provided for in the plea agreement. Neyens appeals this sentence, contending that it is excessive when compared with the sentences received by his codefendants and that the district judge abused his discretion by failing to consider certain mitigating factors. In addition, Neyens argues that the district judge violated the doctrine of separation of powers by usurping the executive branch function of determining a parole release date, and was impermissibly prejudiced against him. We find none of these contentions persuasive and therefore affirm the sentence imposed by the district court.

I. FACTUAL BACKGROUND

Prior to working at Deere Neyens taught college courses and published numerous articles. In 1972 he was selected as an "Outstanding Educator of America." But then Neyens began his employment at Deere in June 1979, working in Moline, Illinois. By November he was responsible for purchasing steel-cutting services. Two years later he had achieved the status of senior buyer and was responsible for selecting vendors, negotiating contracts and prices, and placing steel orders.

Concurrent with his employment at Deere Neyens entered into a partnership with Roger Streeter and established the Quad City Steel Cutting Corp. (QCSC) headquartered in Iowa. At the time Neyens achieved his senior buyer status he was ordering large amounts of steel from QCSC. Neyens would telephone Streeter in Iowa and inform him of the type and amount of steel that Deere required. Streeter would contact several steel warehouses, be quoted a price, and inform Neyens. Neyens would then prepare the Deere purchase order as well as a QCSC invoice. This invoice would reflect a price markup for the steel which, as both Neyens and Streeter knew, could have been ordered more cheaply from the warehouses from which QCSC would ultimately purchase the steel to resell to Deere. In 1981 and 1982 Neyens placed approximately 250 orders for steel with QCSC.

The success of this scheme spawned other profit-making activities by Neyens. Beginning in July 1981, Neyens began ordering steel from Knoxville Allied Steel (KAS) in Knoxville, Tennessee. KAS was created by Neyens in 1981 in partnership with Thomas Timm. In August 1981, Timm started making payments to Neyens to ensure that Neyens would continue to order steel from KAS. In addition, in late 1981 or early 1982, Neyens offered to coordinate a kickback scheme between KAS and another Deere steel buyer. Neyens and this steel buyer agreed that ten percent of the kickback funds would be kept for the IRS and the remainder would be equally divided between them.

The procedures employed by Neyens in his dealings with KAS were essentially the same as those used when making his bogus deals with QCSC. Neyens would telephone KAS and provide Timm with specifications of the steel needed by Deere. Timm would obtain a quoted price from a third-party steel warehouse, mark it up, and give the modified quote back to Neyens. KAS would then draw checks on the KAS account, make them payable to a fictitious person, and according to Neyens' instructions mail them to Neyens' address. Throughout this period, from May 1980 until April 1984, Neyens would have these KAS and QCSC checks cashed by his brother-in-law, Bernard Orey, who would then return the cash to Neyens.

In January 1986 indictments were filed against Neyens, Streeter, Timm, and Orey. In August of that year, pursuant to a plea agreement, Neyens pled guilty to six counts of the indictment in exchange for the dismissal of the remaining nine counts. ¹ The plea agreement provided that the defendant be sentenced on each of three counts to a maximum of five years for a possible total of fifteen years. On the remaining three counts it provided for no more than five years probation. In addition, it recommended that Neyens pay restitution to Deere in an amount not exceeding $822,823.

After permitting counsel to challenge the presentence report and providing Neyens with an opportunity to make a statement, the district court imposed the maximum sentence allowed: fifteen years imprisonment, five years probation, and restitution in the amount of $799,221.

During separate proceedings codefendant Streeter pled guilty to two counts of the indictment. On Count I, under which Neyens was sentenced to five years, Streeter was sentenced to three years imprisonment. Streeter received five years probation on the second count. He was also ordered to pay approximately $25,000 in restitution. Codefendant Timm also pled guilty to two counts of the indictment. On Count X, under which Neyens received five years, Timm was sentenced to four years. Like Streeter, Timm also received five years probation, and was ordered to pay approximately $173,000 in restitution. Codefendant Orey pled guilty to two counts. The court sentenced Orey to nine months in prison on Count X and five years probation on Count I. In addition, Orey was ordered to pay $50,000 in restitution.

II. DISCUSSION

A. Excessive Sentence

Neyens contends that the sentence imposed by the district judge is excessive in light of the sentences meted out to his codefendants. The standard of appellate review in cases challenging a sentence on grounds of excessiveness is well-established and narrow. "This court 'may not change or reduce a sentence imposed within the applicable statutory limits on the ground that the sentence was too severe unless the trial court relied on improper or unreliable information in exercising its discretion or failed to exercise any discretion at all in imposing the sentence.' " ² United States v. Hoffman, 806 F.2d 703, 713 (7th Cir.1986) (quoting United States v. Fleming, 671 F.2d 1002, 1003 (7th Cir.1982)), cert. denied, --- U.S. ----, 107 S.Ct. 1627, 95 L.Ed.2d 201 (1987).

In challenging his sentence as excessive Neyens does not allege that the sentence exceeds statutory limits, that the district judge used improper or unreliable information in determining the sentence, or that the judge exercised no discretion at all. Defendant instead relies on the disparity between his and his codefendants' sentences. In this circuit, however, it is settled law that a defendant who argues disparity alone has not made out a claim of an improper exercise of the district court's discretion, let alone a claim that no discretion at all has been employed. United States v. Peters, 791 F.2d 1270, 1303 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986). All that is required regarding the equality of sentences among codefendants, as a general matter, is that the district judge give "thoughtful consideration to the sentences which he impose[s]." United States v. Santiago, 582 F.2d 1128, 1137 (7th Cir.1978). Only when a judge imposes disparate sentences on similar defendants without explanation does even an inference of impropriety arise. United States v. Ely, 719 F.2d 902, 906 (7th Cir.1983).

It is apparent from the record that the district judge acted properly. In sentencing the defendant as well as the codefendants, the district judge repeatedly referred to Neyens' pivotal leadership role in the kickback schemes. The judge characterized Neyens as the "mainman," "kingpin," and "corrupter of other people." It is clear from the record that these illustrative terms are appropriate. Neyens was the instigator and promoter of these schemes as well as the primary beneficiary. We have recognized that considerations of the extent and nature of a defendant's role in a scheme is a sound basis for disparate sentences among codefendants. See Peters, 791 F.2d at 1304; Santiago, 582 F.2d at 1137. Another factor that weighed heavily in the district judge's decision was that Neyens had breached a position of trust with his employer, Deere. This too is an acceptable factor for inclusion in a judge's determination of the severity of sentence. See United States v. Marquardt, 786 F.2d 771, 782 (7th Cir.1986); United States v. Brubaker, 663 F.2d 764, 769 (7th Cir.1981). Still another factor was the degree to which Neyens profited from his activities, which was almost four times as great as that of his nearest codefendant. Given these factors we cannot say that the judge's sentencing decision was devoid of the type of thoughtful consideration required to ensure an appropriate punishment designed to fit both the crime and criminal.

B. Abuse of Discretion

The defendant argues that the district judge abused his discretion in allegedly failing to consider certain mitigating factors. These factors include a lack of any prior criminal record and the defendant's status in the community as a successful educator.

" 'A district court has wide discretion in determining what sentence to impose,' and in deciding what sentence is appropriate, 'the weight to be given various factors is [also] within the discretion of a sentencing court.' " Marquardt, 786 F.2d at 782 (quoting United States v. McCoy, 770 F.2d 647, 648 (7th Cir.1985) and ...