US v. Winkler

• Decision Date: 02 April 1993
• Docket Number: Crim. A. No. 87-20049-02-DES.
• Parties: UNITED STATES of America, Plaintiff, v. Franklin WINKLER, Defendant.
• Court: U.S. District Court — District of Kansas

817 F. Supp. 1530

UNITED STATES of America, Plaintiff,
v.
Franklin WINKLER, Defendant.

Crim. A. No. 87-20049-02-DES.

United States District Court, D. Kansas.

April 2, 1993.

817 F. Supp. 1531

Sheryle L. Jeans, and Michael J. Dittoe, U.S. Dept. of Justice, Richard J. Marien, U.S. Atty., Kansas City, MO, for U.S.

Loren G. Rea, Kansas City, MO, John P. Gerstle, Overland Park, KS, Max Gordon, Charles E. Atwell, Wyrsch, Atwell, Mirakian, Lee & Hobbs, Kansas City, MO, for defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on the motion of the defendant for reduction of sentence, filed pursuant to Fed.R.Crim.P. 35 (Doc. 402).

In June 1987, the defendant was jointly indicted with four others in a multiple-count indictment alleging a complex scheme of wire fraud involving financial institutions. The defendant was not in the United States at the time of the indictment. After he was determined to be in Australia, extradition proceedings were initiated. The defendant was ultimately brought before this court to answer the charges in September 1990, more than three years after he was indicted.

Following plea negotiations, the defendant pleaded guilty to one count of conspiracy to commit wire fraud, as defined by 18 U.S.C. § 1343, in violation of 18 U.S.C. § 371. The government dismissed the other 31 counts in the indictment against the defendant. On April 15, 1991, he was sentenced to imprisonment for five years and fined $10,000, the maximum penalty under the applicable statute at the time of the alleged offense. In addition, pursuant to 18 U.S.C. § 3663, the court ordered restitution in an unspecified amount equal to the civil judgments awarded in favor of the FSLIC and the FDIC in two related civil cases in this district in which Mr. Winkler was a named defendant, Case Nos. 83-2477 and XX-XXXX-XX respectively. Pursuant to the plea agreement, any amount of criminal restitution recovered was to be credited toward satisfaction of the civil judgments awarded against the defendant.

The offense for which defendant stands convicted was concluded in 1984, prior to the effective date of the sentencing guidelines. Therefore, the defendant's motion for reduction of sentence must be determined in accordance with Fed.R.Crim.P. 35 as amended by order of the Supreme Court on April 29, 1985. See Pub.L. 100-182, § 22, Dec. 7, 1987, 101 Stat. 1266, 1271; see also United States v. Guardino, 972 F.2d 682, 685 (6th Cir.1992) (for offense committed prior to November

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1, 1987, the former version of Rule 35 applies). The applicable version of Rule 35 reads as follows

Rule 35. Correction or Reduction of Sentence

(a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

(b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.

See Charles A. Wright, Federal Practice and Procedure § 587 (Supp.1992); see also Amendments to Rules, 105 F.R.D. 179, 183 (1985) (amendment to Rule 35(b)) (repealed 1987).

The defendant's motion to reduce the sentence was filed on August 21, 1991, more than 120 days after sentence was imposed. However, the defendant's timely appeal was dismissed on June 6, 1991, on the motion of the defendant. Since the motion to reduce sentence was filed within 120 days of receipt by this court of the notice of the dismissal of the appeal, the motion is timely under the applicable version of Rule 35(b).

The defendant contends that (1) his five-year sentence should be reduced because (a) he agreed to assist the government in its prosecution of others and (b) the sentence exceeds that imposed on co-defendants he alleges were more culpable than he; (2) the fine imposed should be vacated or changed to an uncommitted fine; and (3) the order of restitution is excessive as a matter of law. The court will address each of these arguments in turn.

1. Term of Incarceration

a. Willingness to Cooperate in Other Prosecutions

Defendant contends that his five-year sentence should be reduced because he agreed to cooperate with the government in its prosecution of two other individuals. The government concedes that the defendant agreed to testify against others, although his cooperation turned out to be unnecessary for reasons that had nothing to do with the defendant.

The court acknowledges defendant's willingness to cooperate with the government, but is not persuaded to reduce the defendant's sentence on this basis. The government entered into a plea agreement with the defendant that in the court's opinion was highly favorable to him, in exchange for defendant's agreement to assist the government by testifying against others with whom he had been associated. The defendant has already derived substantial benefit from his willingness to cooperate in that the government agreed to dismiss 31 other counts in the indictment, all of which charged the defendant with serious felony offenses.

b. Disparity of Sentence Relative to Co-Defendants

The defendant also contends that his sentence should be reduced because his term of imprisonment exceeds those imposed on his co-defendants, who he alleges were more culpable than he. The co-defendants in this case were Mario Renda, Sammy Daily, Frederick Figge, and Leslie Winkler.

Mr. Renda pleaded guilty to two counts of wire fraud charged in the indictment. He was sentenced to two years on one count, to run concurrently with a sentence he was already serving on a conviction in New York. On the other count, however, Renda was sentenced to five years imprisonment, to run consecutive to the two-year sentence. Execution of the five-year sentence was suspended and defendant Renda was placed on probation subject to special conditions, including compliance with a restitution agreement he

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entered into in confessing judgment in two civil cases in this district, Case Nos. 85-2216-0 and 89-2094-0.¹ The court specifically determined that Mr. Renda was not a flight risk

Sammy Daily and Frederick Figge were tried by jury in late 1987. Each was convicted of one count of conspiracy to commit wire fraud, but the jury found them not guilty on all other counts of the indictment. Sammy Daily was sentenced to a term of five years and fined $10,000. Frederick Figge was sentenced to three years and fined $10,000; however, he subsequently died. The convictions of defendants Daily and Figge were later reversed on appeal, and the case was remanded for a new trial. However, the government elected not to reprosecute Daily since he had already served approximately 18 months of his term. On the government's motion, the indictment against him was dismissed by this court.

Leslie Winkler was never located. The government was advised that he died in Israel in 1988. On the motion of the government, this court dismissed the indictment against Leslie Winkler on January 6, 1992.

The court is not persuaded by the defendant's contention that his sentence to a term of five years is excessive considering the sentences imposed on his co-defendants, who he argues were more culpable. Co-defendant Renda, who also entered a plea following negotiations with the government, was sentenced to a controlling term of seven years, only two of which were to run concurrently with the previous sentence in New York. Although he was granted probation on the five-year term, he is nevertheless subject to court supervision and must comply with substantial conditions of probation, including restitution to the victims of his criminally fraudulent conduct.

With regard to the other co-defendants, it suffices to state that a jury found them not guilty on all but one count each of conspiracy. Although Winkler contends that he is less culpable as to the offenses charged than co-defendants Renda and Daily, the court notes that the sentencing process properly takes into consideration a number of factors other than the relative culpability of the defendant. See, e.g., Genet v. United States, 375 F.2d 960, 962 (10th Cir.1967) (sentencing judge has duty to consider both the crime and the person committing the crime). Furthermore, a defendant may not rely on the sentences imposed on his co-defendants as a yardstick for his own sentence. United States v. Castillo-Roman, 774 F.2d 1280, 1284 (5th Cir.1985); United States v. Hayes, 589 F.2d 811, 827 (5th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979), cited with approval in United States v. Trujillo, 906 F.2d 1456, 1465 (10th Cir.1990), cert. denied, 498 U.S. 962, 111 S.Ct. 396, 112 L.Ed.2d 405 (1990).

The five-year sentence imposed on the defendant was the statutory maximum for the offense to which the defendant pleaded guilty. The defendant's assertion that the United States Attorney considered a sentencing recommendation capped at four years in the course of preliminary plea negotiations is totally unpersuasive. Even if the plea agreement had included such a recommendation, and it did not, the plea agreement is not binding on the court in imposing sentence. Further, the plea agreement signed by the defendant clearly stated that any sentencing recommendations made by the government in compliance with the plea agreement were not...