U.S.A. v. Ruzzano

• Decision Date: 04 April 2001
• Docket Number: No. 99-4033,99-4033
• Citation: U.S.A. v. Ruzzano, 247 F.3d 688 (7th Cir. 2001)
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. David A. Ruzzano, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 688

247 F.3d 688 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v.David A. Ruzzano, Defendant-Appellant.

No. 99-4033

In the United States Court of Appeals For the Seventh Circuit

Argued October 26, 2000

April 4, 2001

Appeal from the United States District Court for the Northern District of Illinois, EasternDivision. No. 84 CR 610--Suzanne B. Conlon, Judge.[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]Before Easterbrook, Kanne, and Evans, Circuit Judges.

Kanne, Circuit Judge.

On August 9, 1984, a grand jury in the Northern District of Illinois returned a sixteen count indictment against David A. Ruzzano.Counts fifteen and sixteen, at issue here, charged Ruzzano with tax evasion in violation of 26 U.S.C. sec. 7201 in the amount of $313,000 and $236,000 for the years of 1979 and 1980 respectively.The indictment was the result of an investigation into Ruzzano's participation in an oil swindle in which he allegedly promised investors substantial profits on investments in oil producing corporations that did not actually produce oil.At the time of the indictment, Ruzzano was not present in the United States, and his location abroad was unknown.

Ruzzano, who left the country in 1980, claims that he first learned of the criminal charges pending against him in 1985 when he entered the American Embassy in the Netherlands to renew his passport.At the request of the United States, Dutch authorities provisionally arrested Ruzzano, but they later released him on bond pending extradition.By the time U.S. Marshals had arrived to bring Ruzzano back to the United States, he had disappeared.Ruzzano's whereabouts remained unknown until he was discovered in the French Carribean on St. Martin in 1995.The French detained him for six months, but he was never arrested.After his release from French custody, Ruzzano's whereabouts again became unknown to U.S. authorities until three years later when Ruzzano presented himself to the American Embassy in Lisbon, Portugal.He told the authorities there that he wanted to clear up the criminal charges pending against him.Eight months later--nearly fifteen years after he was indicted--Ruzzano was extradited to the United States.

Upon his return to the United States, Ruzzano entered an agreement with the government in which he pleaded guilty to two counts of tax evasion.In the plea agreement, Ruzzano acknowledged that he wilfully and knowingly attempted to evade the income tax due and owing to the United States of America by keeping improper records, failing to report income derived from a substantial number of cash transactions, and by failing to file income tax returns with the Internal Revenue Service for the calendar years of 1979 and 1980.

District Court Judge Suzanne B. Conlon conducted a guidelines-type sentencing hearing although none was required inasmuch as this was to be a pre-guidelines sentence.Before sentencing, both Ruzzano and the government submitted their own versions of Ruzzano's offense.Ruzzano also submitted a position paper for sentencing in which he asked the court to consider the fact that he ultimately turned himself in.The position paper also took issue with a number of the government's characterizations of his actions.In the position paper, Ruzzano claimed that he never intended to defraud anyone.Instead, he contended that his legal troubles were the result of "dreamy expectations and reckless bookkeeping."The position paper also disputed the government's characterization of Ruzzano's initial departure from the United States as an attempt to evade the law.Although he did not deny that "he was a fugitive from justice for many years," Ruzzano maintained that he initially left the country not to evade the authorities but solely to avoid the effects of the recently enacted windfall profits tax.In support of this assertion, the position paper pointed out that no criminal charges were pending against Ruzzano when he left the country.

At sentencing, Ruzzano's counsel repeated many of the same arguments made in the position paper.Ruzzano's attorneys emphasized the fact that Ruzzano, while once a fugitive, did ultimately decide to turn himself in and accept responsibility for his actions.Counsel also asked the court to take into account certain mitigating factors including contriteness, exemplary military service, chronic health problems, and time spent in "horrifying conditions" in a Portugese prison.In response, the government argued that Ruzzano's attempts to avoid apprehension should aggravate his sentence.Noting that he would be sentenced under the pre- guidelines sentencing regime in which defendants serve less of their sentence than under the guidelines, the government recommended that Ruzzano be sentenced to the maximum term of imprisonment--five years per count.The district court agreed.The court stated that the fact that Ruzzano ultimately turned himself in to the authorities some fifteen years after he was indicted was not enough to show acceptance of responsibility.Consistent with the government's recommendation, the district court then imposed the maximum allowable sentence: five years for each count, the terms to run consecutively, for a total of ten years imprisonment.

Ruzzano raises three issues on appeal.First, he claims that the district judge should have recused herself pursuant to 28 U.S.C. sec.sec. 455(a)and455(b)(3).Next, Ruzzano contends that his counsel failed to provide effective assistance at sentencing.Lastly, he claims that the district court abused its discretion in sentencing by overlooking evidence of remorse, contrition, acceptance of responsibility, and other mitigating factors.

I.Analysis

A. sec. 455 Claims

Ruzzano argues that Judge Conlon should have recused herself from his case pursuant to 28 U.S.C. sec.sec. 455(a)and455(b)(3).His claim, never presented to Judge Conlon and raised for the first time on appeal, is based on the fact that Judge Conlon served as an Assistant United States' Attorney (AUSA) in the U.S. Attorney's Office for the Northern District of Illinois at the same time that Ruzzano was indicted by a grand jury in that district.At the outset, we note that we do not know whether Judge Conlon played any role in or was even aware of Ruzzano's indictment during her time in the U.S. Attorney's Office.While it is undisputed that her name does not appear on any of the documents related to the case, Ruzzano argues that Judge Conlon may have provided assistance or expressed an opinion about his case to a fellow AUSA.

Ruzzano sent a Freedom of Information Act (FOIA)request to the Department of Justice asking for information relating to Judge Conlon's involvement with his case, but he did not receive a response.Although the government's failure to respond to the FOIA request does concern us, we find it highly unlikely that the U.S. Attorney's Office keeps a record of every time one AUSA sticks his head into another AUSA's office to ask her a question about a pending case.Almost certainly, the sole person who knows whether Judge Conlon may have expressed an opinion on the merits of the defendant's case is Judge Conlon herself.Had Ruzzano raised this issue in the district court, we would now have the benefit of Judge Conlon's response.

1.Ruzzano's sec. 455(a) Claim.

28 U.S.C. sec. 455(a) provides that a judge must disqualify herself "in any proceeding in which h[er] impartiality might reasonably be questioned."In this circuit, appellate review of a judge's failure to disqualify herself under sec. 455(a) may only be obtained by petitioning the appellate court for a writ of mandamus prior to trial.SeeUnited States v. Horton, 98 F.3d 313, 316-17(7th Cir.1996);United States v. Balistrieri, 779 F.2d 1191, 1205(7th Cir.1985).Our cases have reasoned that

"[i]t is a fundamental principle of appellate review that unless an error affects the substantial rights of the appellant, it is not a basis for reversal. . . .[I]f a judge proceeds in a case when there is (only) an appearance of impropriety in his doing so, the injury is to the judicial system as a whole and not to the substantial rights of the parties.The parties receive a fair trial, even though a reasonable member of the public might be in doubt as to its fairness, because of misleading appearances."Once the proceedings in the district court are complete, the harm sought to be avoided by the requirement of recusal for appearance of impropriety has been done--the public image of the judiciary has already been damaged.

United States v. Troxell, 887 F.2d 830, 833(7th Cir.1989)(quotingBalistrieri, 779 F.2d at 1204-05; other citations omitted).While we recognize that this is a minority position, seeUnited States v. Boyd, 208 F.3d 638, 650(7th Cir.2000)(Ripple, J. dissenting)(arguing that this circuit's requirement of mandamus is in "considerable tension" with the Supreme Court's decisions in Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474(1994), andLiljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855(1988)), cert. granted in part and judgment vacated on other grounds byU.S., 121 S.Ct. 1072, 148 L.Ed.2d 949(2001), it remains the law in this circuit.Seeid. at 645.

However, in this case the issue is not Ruzzano's failure to petition for a writ of mandamus, but rather his failure to raise the issue before the district court at all.Because a party waives his sec. 455(a) recusal argument by failing to petition for a writ of mandamus, it follows that he also waives it by failing altogether to raise it at the district court level.SeeUnited States v. Franklin, 197 F.3d 266, 269(7th Cir.1999).Moreover, although we are the only circuit to require parties to petition for a writ of mandamus in order to preserve recusal challenges, we are not alone in requiring a party to...