U.S. v. Rosch, s. 92-2164
| Decision Date | 21 December 1993 |
| Docket Number | Nos. 92-2164,92-2826 and 92-3940,s. 92-2164 |
| Citation | 16 F.3d 1226 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES of America, Plaintiff-Appellee, v. John F. ROSCH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before POSNER, Chief Judge, COFFEY, Circuit Judge and WILLIAMS, District Judge. *
In three separate appeals, Defendant John Rosch attacks his conviction and sentence, as well as the district court's dismissal of his petition for a writ of habeas corpus. We affirm.
On September 20, 1990, a Third Superseding Indictment was filed against Rosch, charging him with twenty-eight counts of criminal misconduct in connection with his activities as president and chief operating officer of Glen Ellyn Savings & Loan Association. Three days into his trial, Rosch pled guilty to Counts One and Twenty-Eight of the Third Superseding Indictment. Count One charged Rosch "with conspiring to run the affairs of the Glen Ellyn Savings & Loan Association through a pattern of racketeering ...," in violation of 18 U.S.C. Sec. 1962(d) (the "RICO charge"). Count Twenty-Eight alleged that on May 24, 1985, Rosch "knowingly and willfully misapplied approximately $100,000 in funds and credits belonging to and entrusted to the custody of Glen Ellyn Savings ...," in violation of 18 U.S.C. Sec. 657 (the "embezzlement charge"). In exchange for Rosch's guilty plea, the government agreed to dismiss the remaining counts. Rosch signed a written plea agreement which stated that he had "read the charges against him contained in the Third Superseding Indictment," that "those charges ha[d] been fully explained to him by his attorney[,]" and that he "fully underst[ood] the nature and elements of the crimes which he ha[d] been charged."
The district court held a change-of-plea hearing on October 25, 1990. At the hearing, the judge (1) described the nature of the RICO and embezzlement charges, (2) incorporated by reference the summary of the indictment, which he had read to the jury at the commencement of trial and which both parties had approved, and (3) upon agreement of the parties, incorporated by reference the government's opening statement summarizing what the government believed the evidence would show. The judge also emphasized several key provisions of the plea agreement. One such provision stated that the judge was not a party to the agreement and could impose any sentence up to the statutory maximum on either count. Another authorized the government to recommend whatever sentence it deemed appropriate.
The government also, in open court, directed the judge's attention to paragraph 10 of the plea agreement, which states as follows:
10. Defendant understands that the United States Attorney's Office will fully apprise the District Court and the United States Probation Office of the nature, scope and extent of the defendant's conduct regarding the charges against him, and related matters, including all matters in aggravation and mitigation relevant to the issue of sentencing.
The judge asked Rosch whether he understood that the provisions of paragraph 10 were applicable to his case, and Rosch responded yes.
Finally, the judge drew Rosch's attention to the portions of the plea agreement which stated that (1) the maximum penalty for the RICO charge was a twenty-year prison sentence and a fine of twice the amount of loss to the victim or gain to the defendant; and (2) the maximum penalty for the embezzlement charge was an additional five-year prison term and a $250,000 fine, plus any restitution the court might order.
Having reviewed the charges, the government's statement of the evidence, and the plea agreement, the judge addressed Rosch as follows:
Now, Mr. Rosch, then, you understand now the charges that have been brought against you to which you would be pleading guilty, and the Government in summary form and, of course, incorporating by reference the more detailed opening statement that you previously had heard, you understand now the evidence that would be presented in this case should the trial have been completed.
Now, is that statement of facts then for the charges to which you would be pleading guilty substantially correct?
Rosch responded that the facts were "substantially correct."
The judge then continued by engaging Rosch in the following colloquy:
The judge then asked Rosch if he still wanted to change his plea to guilty. Rosch stated that he did. Thereafter, the judge accepted the change of plea, entered a judgment of guilty, and set a sentencing date.
On January 29, 1990, the government sent Rosch a copy of the United States Probation Office's presentence report. The presentence report included the government's version of the charges and a recommendation that Rosch be sentenced to twenty years imprisonment, ordered to make full restitution, and fined $52,000,000.
On March 15, 1991, Rosch filed a 194-page pro se discussing his culpability and responding to the presentence report. In that document Rosch stated that: (1) he pled guilty as a tactical maneuver to limit his sentencing exposure; (2) he personally researched the law governing guilty pleas, including his rights under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); and (3) he knew that he probably would have been convicted of many of the counts contained in the Third Superseding Indictment had he proceeded with his trial.
Two weeks later, on April 1, 1991, and over five months after he originally pled guilty, Rosch moved to vacate the plea agreement and withdraw his guilty plea on the ground that it was neither knowing nor voluntary due primarily to the inadequate assistance he believed he had received from his attorney. The court denied Rosch's motion on June 28, 1991, finding that Rosch had received effective assistance and had voluntarily and knowingly pled guilty. The judge concluded that Rosch had initially pled guilty as a tactical maneuver and then decided after the presentence report was issued that he had made a bad choice. The judge also noted that Rosch not only had a law degree, but had graduated at the top of his class. The judge further stated that Rosch had reaped the reward he bargained for in changing his plea, as his maximum exposure to criminal punishment was limited when the government dropped all other charges against him.
Rosch maintained that he was innocent, and challenged the contents of the presentence report. The government moved to have Rosch object to the presentence report on a line-by-line basis, pursuant to Federal Rule of Criminal Procedure 32. During the hearing on this motion, Rosch denied his guilt of any crime. Rosch also indicated his wish to contradict the testimony given at trial, stating:
Judge, if it please the Court, all you heard was [the Assistant United States Attorney's] direct examination. You did not hear any evidence from the defendant, and I understand I pled guilty, I won't go into the reasons again. I have evidence that will contradict the very testimony on the stand and I wish to present it.
The government then moved to vacate the Rule 32 proceedings entirely, arguing that Rosch had waived his right to a factual determination on the report by refusing to identify the specific matters in the presentence report to which he objected.
The sentencing hearing began on November 26, 1991, and continued on December 2 and 12, 1991, and February 6 and 7, 1992. The issues centered on whether Rosch caused the failure of Glen Ellyn and the amount of the loss incurred by the failure.
The primary testimony presented at these proceedings came from the government's witness, Thomas C. Kovac, a federal bank examiner in charge of the Glen Ellyn investigation. Kovac testified regarding the facts surrounding the failure of Glen Ellyn, as well as the nature of the losses caused by Rosch's bad loans. Specifically, Kovac testified that (1) only $2.4 million dollars worth of the $19.6 million dollars worth of fraudulent loans Rosch approved between 1981 and 1985 would have had to fail for Glen Ellyn itself to fail; (2) the cause of Glen Ellyn's failure was $12 million in defaulted loans made to a former co-defendant and authorized by Rosch; and, (3) the actual losses to Glen Ellyn and its successor in interest, the FSLIC, as a result of Rosch's fraudulent loan approvals was $12 million in defaulted loans, plus an additional loss of $3.8 million to a savings institution in South Beloit, Illinois.
Although Rosch was given the opportunity to call his own witnesses, the only evidence he presented was his own testimony plus voluminous documents, wherein he characterized his activities as poor business judgment and denied that his actions caused Glen Ellyn to fail. Rosch also claimed that the FSLIC was negligent in its efforts to collect on defaulted loans, and that he should not be held responsible for their negligence. On cross-examination Rosch admitted that over a five- or six-year period, he had transferred property to his wife and children for no compensation, with the intention of defeating creditors in connection with Glen Ellyn. Rosch further testified that his wife currently had assets of $795,000.
The court sentenced Rosch on February 28, 1992. The court found that the crimes which Rosch admitted in the plea agreement and the evidence the government presented at the sentencing hearing were sufficient to support a finding that Rosch had caused Glen Ellyn to fail, and characterized Rosch's evidence to the...
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