U.S. v. Sidener, 88-3126

• Decision Date: 29 June 1989
• Docket Number: No. 88-3126,88-3126
• Citation: 876 F.2d 1334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael R. SIDENER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1334

876 F.2d 1334

UNITED STATES of America, Plaintiff-Appellee, v. Michael R. SIDENER, Defendant-Appellant.

No. 88-3126.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 1989.

Decided June 9, 1989.

As Amended June 29, 1989.

Patrick J. Chesley, Asst. U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Howard W. Feldman, Feldman & Wasser, Springfield, Ill., for defendant-appellant.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and WILL, Senior District Judge. ^*

WILL, Senior District Judge.

Defendant Michael Sidener was convicted of (1) conspiring with Bridget Jones and Johannas Eiche (Jones' common-law husband) to violate the conditions of Jones' release on bond pending sentencing following her conviction and (2) aiding and abetting Jones with violating her conditions by not appearing for her sentencing. Sidener filed motions for transfer of venue (to Texas), disqualification of the judge (Judge Mills) and dismissal of the two count indictment (alleging a double jeopardy violation). All motions were denied by Judge Mills and Sidener was convicted by a jury on both charges. Sidener's renewed motion to dismiss the indictment was likewise denied. Judge Mills imposed consecutive three-year sentences on each count. On appeal, Sidener challenges Judge Mills' orders denying Sidener's motions and also argues that substantial evidence did not support his conviction. We affirm.

FACTS

Michael Sidener, a former private investigator and police officer, had invested in an "advance fee loan program" run by Bridget Jones and her late husband (Richard Jones). Bridget Jones was indicted during the summer of 1986 for conspiracy, wire fraud and obstruction of justice in connection with her bogus loan program. Jones was released on bond pending trial with the condition, among others, that she appear for all court proceedings and sentencing.

Jones' trial began on March 10, 1987. Sidener attended most of it and heard closing arguments on March 20, 1987. While attending the trial, Sidener stayed at Jones' residence. The jury reached its verdict on March 20th but, because Jones was ill, the verdict was sealed until Monday, March 23, 1987. Sidener was not present when the verdict was read or when Judge Mills continued Jones' bond until sentencing. Sentencing for Jones was originally scheduled for May 22, 1987 but was rescheduled to May 18, 1987. Jones did not appear in court for sentencing on either day.

At Sidener's trial, the government presented evidence which included the following: (1) Sidener was told that Jones was convicted; (2) Sidener discussed an appeal with Jones and asked why the jurors were not polled following the verdict; (3) Sidener made arrangements with a private pilot, Michael Oldenburg, to transport Jones and her children out of the United States for $5000; (4) Sidener sought documents, including birth certificates for Jones' children, which would be necessary to enter the Bahamas; (5) Sidener helped Jones sell her car; (6) Sidener helped Jones and her children fly to the Bahamas; (7) Sidener returned to Jones' Illinois residence and destroyed some of her records and credit cards; (8) Sidener attempted to make business investments in the Bahamas; (9) Sidener bought clothes for Jones and her children while in the Bahamas; and (10) on April 13th, Sidener told Nancy Mozingo, who was involved in his investments, that he had risked his freedom by helping Jones get out of the country. Sidener claimed at trial that he did not know that Bridget Jones was convicted until April 9, 1987 and that he was originally told by Jones and Eiche that Jones was acquitted.

Jones' travels were explained by Sidener as follows. On March 27, 1987, four days after the guilty verdict was read, Eiche received information via a telephone call that the Aryan Nations had a contract out on the lives of Jones and her children. That night, Sidener, Eiche, Jones and one of Jones' sons drove to Missouri in a car owned by Jones where they picked up Jones' other son and then went to Texas. They stayed at a motel and then moved to Sidener's residence in Daisetta, Texas.

They later flew to the Bahamas with Sidener's help.

Sidener claimed that he helped Jones move to the Bahamas so that she could be protected from any attempts on her life and that he himself traveled to the Bahamas to attend to business investments (promotion of a cattle program). He also contended that any other involvement with Jones was related to his investment in her bogus loan program. The government's chronology of events ended with a trip Sidener made to the Bahamas on May 6th or 7th. Jones' sentencing was originally scheduled for May 22nd but later rescheduled for May 18th. Sidener claimed that he last saw Jones in mid-April.

ANALYSIS

1. Recusal

Sidener filed a motion requesting that Judge Mills recuse himself. The standard for recusal is as follows:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

28 U.S.C. Sec. 455(a). Sidener contended that Judge Mills' impartiality was reasonably questionable based on the fact that Mills had presided over Jones' trial, imposed the conditions of release for Jones and "suffered" the consequences of Jones not showing up for sentencing.

We have stated that in order to preserve a recusal challenge under Sec. 455(a), a defendant must immediately move for a writ of mandamus if the district judge denies his motion. United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir.1985), cert. denied, DiSalvo v. United States, 475 U.S. 1095, 106 S.Ct. 1490, 89 L.Ed.2d 892 (1986). See also Matter of Nat'l Union Fire Ins. Co. of Pittsburgh, 839 F.2d 1226, 1227 (7th Cir.1988) (reaffirming Balistrieri ). Sidener did not cite Balistrieri in his moving brief. In response to the government's brief, Sidener requests that we reverse Balistrieri. Although the Sixth Circuit has adopted a different rule, In re the City of Detroit, 828 F.2d 1160, 1165-67 (6th Cir.1987) (recusal decision is reviewable only after final judgment is entered), Sidener does not make a compelling argument for overturning Balistrieri. Accordingly, by not filing a petition for a writ of mandamus, Sidener has waived his recusal argument.

In any event, Sidener has not made a sufficient showing that Judge Mills should have recused himself. A judge is presumed to be impartial. United States v. Baskes, 687 F.2d 165, 170 (7th Cir.1981). The mere fact that a judge has some knowledge concerning a case is not, in the absence of some evidence of a lack of impartiality, grounds for disqualification. Judges inevitably learn facts concerning a case through pre-trial motions and hearings. Indeed, under Sidener's contention, recusals would be commonplace and the administration of judicial proceedings, especially in criminal cases, would be severely undermined.

2. Double Jeopardy

Sidener was indicted for and convicted of conspiring with Jones and Eiche to violate the conditions of Jones' release and aiding and abetting Jones to violate the conditions of release by failing to appear at sentencing. Sidener contends that the charges and conviction were based on the same evidence and were therefore in violation of the Fifth Amendment's prohibition against double jeopardy.

Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court set out the often cited rule that there is no double jeopardy problem if a defendant is charged with offenses where each requires proof of a fact that the other does not:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

284 U.S. at 304, 52 S.Ct. at 182. Conspiracy and aiding and abetting require proof of a fact not common to each and are separate punishable offenses. United States v. Beck, 615 F.2d 441, 449 n. 9 (7th Cir.1980). See also United States v. Nelson, 599 F.2d 714, 716 (5th Cir.1979), United States v. Mainieri, 691 F.Supp. 1394, 1397-98 (S.D.Fla.1988) and United States v. Goff, 847 F.2d 149, 175 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 324, 102 L.Ed.2d 341 (1988). In fact, the double jeopardy clause is not violated even if evidence used to prove each offense "overlaps." Mainieri, 691 F.Supp. at 1397-98.

In addition, we have noted that "[d]ouble jeopardy is not violated by a trial on a substantive count and a conspiracy count." United States v. Cortwright, 528 F.2d 168, 176 (7th Cir.1975). See also United States v. Gabriel, 525 F.Supp. 173, 180-81 (N.D.Ill.1981) aff'd, 692 F.2d 759 (7th Cir.1982) (unpublished opinion), cert. denied, 459 U.S. 1116, 103 S.Ct. 752, 74 L.Ed.2d 970 (1983) (the double jeopardy clause was not violated by a conviction for conspiracy to counterfeit and counterfeiting).

Sidener relies on the Sixth Circuit's opinion in United States v. Austin, 529 F.2d 559, 561 (6th Cir.1976), where the court held that the double jeopardy test is whether or not the "same evidence" is used to prove the charged offenses. That test has been specifically rejected by other circuits. See, e.g., United States v. Cowart, 595 F.2d 1023, 1029, 1034 (5th Cir.1979); United States v. Rubalcaba, 811 F.2d 491, 495 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 107, 98 L.Ed.2d 66 (1987); United States v. Udey, 748 F.2d 1231, 1237-38 (8th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3477, 87 L.Ed.2d 613 (1985); United States v. Collins, 779 F.2d 1520, 1527 (11th Cir.1986); United States v. Cerone, 830 F.2d 938, 944-45 (8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988); United States v. Savaiano, 843 F.2d 1280, 1292 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 99, 102 L.Ed.2d 74 (1988); United States v. Muhammad, 824 F.2d 214,...