Transcript of William Hanhardt Plea Hearing

Case: 09-2248
Document: 7-2
Filed: 05/27/2009
Pages: 278
APPEAL, MASON, TERMED
United States District Court

Northern District of Illinois CM/ECF LIVE, Ver 3.2.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:07cv02542
Internal Use Only
United States of America v. Hanhardt
Assigned to: Honorable Charles R. Norgle, Sr
Case in other court: 0902248
Cause: 28:2255 Remedies on motion attacking sentence
Date Filed: 05/07/2007

Date Terminated: 02/09/2009
Jury Demand: None
Nature of Suit: 510 Prisoner: Vacate
Sentence
Jurisdiction: U.S. Government Defendant
Date Filed
Page Docket Text
05/07/2007
05/07/2007
39 CIVIL Cover Sheet. (mjc, ) (Entered: 05/08/2007)
05/09/2007
40 MINUTE entry before Judge Charles R. Norgle Sr.: The Government shall
provide the court with a complete transcript of Hanhardt's 10/25/01
changeofplea hearing on or before 5/25/07. The Government shall file a
response to Hanhardt's motion to vacate, set aside, or correct sentence on or
before 6/15/07. Hanhardt shall file a reply on or befor 6/29/07.Mailed notice
(mjc, ) (Entered: 05/14/2007)
06/13/2007
41 MINUTE entry before Judge Charles R. Norgle Sr.: The time for filing the
government's response to defendant William Hanhardt's motion to vacate, set
aside, or correct his sentence is extended to or before 7/16/07.Mailed notice (mjc,
) (Entered: 06/18/2007)
06/13/2007
42 ORDER Signed by Judge Charles R. Norgle Sr. on 6/13/2007.(mjc, ) (Entered:

06/18/2007)
07/12/2007
43 MINUTE entry before Judge Charles R. Norgle Sr.: Enter agreed order.Mailed
notice (mjc, ) (Entered: 07/17/2007)
07/12/2007
44 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 7/12/2007.(mjc, )

(Entered: 07/17/2007)
08/10/2007
08/10/2007
10

(Entered: 08/14/2007)
09/10/2007
11
47 MOTION by Plaintiff United States of America to dismiss Petitioner William

Hanhardt's Motion to Vacate Conviction and Sentence Pursuant to 28 U.S.C.
Section 2255. (Attachments: # 1 Exhibit)(Podliska, John) (Entered: 09/10/2007)
09/24/2007
12
4 MOTION to Vacate, Set Aside or Correct Sentence (2255)and 1 copy filed by

William Hanhardt. (00cr8531) (mjc, ) (Entered: 05/08/2007)
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09/24/2007
13

(Entered: 09/27/2007)
10/18/2007
14
10/18/2007
15

(Entered: 10/22/2007)
10/29/2007
16
10/29/2007
17

(Entered: 11/02/2007)
11/05/2007
18
84 REPLY by Defendant William Hanhardt Reply to Government's Motion to

Dismiss (Attachments: # 1 Exhibit Patient Progress Notes# 2 Exhibit Affidavit of
Angeline Hanhardt# 3 Exhibit Transcript pages 45 46# 4 Exhibit Affidavit of
Joene Hanhardt# 5 Exhibit Group Exhibit E Letters)(Steinback, Jeffrey)
(Entered: 11/05/2007)
11/09/2007
19
128 MINUTE entry before Judge Charles R. Norgle Sr.: On 11/5/07, movant William
Hanhardt submitted his Reply to the Government's motion to dismiss. Attached to
this Reply are, inter alia, affidavits of Hanhardt's wife and daughter. The
government is granted leave to file a SurReply addressing the allegations
contained within these affidavits on or before 11/30/07. After examining the
government's submission, the court with a transcript of Hanhardt's sentencing
hearing on or before 11/30/07.Mailed notice (mjc, ) (Entered: 11/14/2007)
11/30/2007
20
11/30/2007
21

(Entered: 12/06/2007)
12/10/2007
22
131 SURREPLY by Plaintiff United States of America to reply, 18 Government's

SurReply to Defendant's Reply to Government's Motion to Dismiss or to Deny
Petition (Attachments: # 1 Attachment Tr. 10/25/01 130# 2 Attachment Tr.
10/25/01 3166)(Podliska, John) (Entered: 12/10/2007)
12/12/2007
23
215 MINUTE entry before Judge Charles R. Norgle Sr.: On 11/9/07, the court
ordered the government to file a surreply addressing various allegations made
by Hanhardt, and to provide the court with a transcript of Hanhardt's sentencing
hearing. On 12/10/07, the government provided the requested surreply.
However, this surreply was accompanied by a transcript of Hanhardt's change of
plea hearing. The government shall provide the court with a transcript of
Hanhardt's sentencing hearing on or before 1/11/08. After examining this
submission, the court will set the matter for status.Mailed notice (mjc, ) (Entered:
12/18/2007)
11/12/2008
24
216 MINUTE entry before the Honorable Charles R. Norgle, Sr: On December 12,
2007 the Court ordered the government to provide a transcript of Hanhardt's
sentencing hearing by January 11, 2008. The government did not respond, and
the docket reflects that the matter has sat dormant since the Court's last order.
The parties shall therefore appear for status on December 12, 2008 regarding all
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outstanding issues, including the need for an evidentiary hearing and the issuance
of any writs or subpoenas for all necessary witnesses. It is so ordered.Mailed
11/17/2008
25
217 MINUTE entry before the Honorable Charles R. Norgle, Sr: The Court
acknowledges receipt of the transcript of Hanhardt's sentencing hearing, which
the government provided. The matter remains set for a general status on
December 12, 2008.Telephoned notice (mjc, ) (Entered: 11/18/2008)
12/17/2008
28
218 MINUTE entry before the Honorable Charles R. Norgle, Sr: Status hearing set
for 12/19/2008 is stricken. Counsel shall file a written status report on or before
1/21/2009.Telephoned/mailed notice (ewf, ) (Entered: 12/17/2008)
01/21/2009
29
219 RESPONSE by Plaintiff United States of America to text entry,, 24 Government's

Status Report (Podliska, John) (Entered: 01/21/2009)
01/21/2009
30
223 MINUTE entry before the Honorable Charles R. Norgle, Sr: Defendant's time to
file a written status report is extended to and until 1/28/2009. (ewf, ) (Entered:
01/21/2009)
01/28/2009
31
224 RESPONSE by Defendant William Hanhardt Defendant's Status Report

(Steinback, Jeffrey) (Entered: 01/28/2009)
02/09/2009
32
228 MINUTE entry before the Honorable Charles R. Norgle, Sr: William Hanhardt's
motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C. 2255
is denied. The government's Motion to dismiss 11 is granted. Case terminated.
[For further detail see separate order(s)]. Mailed notices (gcy, ) (Entered:
02/11/2009)
02/09/2009
33
229 Opinion and Order Signed by the Honorable Charles R. Norgle, Sr on

2/9/2009:(gcy, ) (Entered: 02/11/2009)
04/10/2009
34
260 APPLICATION for a Certificate of Appealability construed as NOTICE of

appeal per USCA by William Hanhardt regarding orders 32 , 33 . (Fee Due) (gej,
) (Entered: 04/29/2009)
05/06/2009
38
278 MINUTE entry before the Honorable Charles R. Norgle, Sr: Hanhardt's
application for certificate of appealability 34 is denied. [For further details see
minute order.] Mailed notice (mjc, ) (Entered: 05/11/2009)
05/07/2009
37
277 (Court only) RECEIPT regarding payment of (Notice of Appeal) filing fee paid
on 5/7/2009 in the amount of $455.00, receipt number 4624021414. (mjc, )
(Entered: 05/08/2009)
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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
v.
WILLIAM HANHARDT
)
)
)
)
)
No. 07 CV 2542
00 CR 853-1
Judge Charles R. Norgle, Sr.
GOVERNMENTS MOTION TO DISMISS PETITIONER WILLIAM

HANHARDTS MOTION TO VACATE CONVICTION AND SENTENCE
PURSUANT TO 28 U.S.C. 2255
The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, United

States Attorney for the Northern District of Illinois, moves this Court pursuant to Rule 4 (b)
of the Rules Governing Section 2255 Proceedings to dismiss petitioner William Hanhardts
motion to vacate his conviction or correct his sentence pursuant to 28 U.S.C. 2255 for
failure to state a claim upon which relief can be granted. In support thereof the government
states as follows:
William Hanhardt moves this Court, pursuant to 28 U.S.C. 2255, to vacate his
conviction for racketeering conspiracy and conspiracy to transport stolen property in
interstate commerce in violation of 18 U.S.C. 1962(d) and 371, or , in the alternative to
modify his sentence by vacating the finding that Hanhardt was responsible for the 1995
armed robbery of jewelry salesman Esagh Kashimallak, a crime of violence that, under
Bureau of Prisons regulations, prohibits him from serving his 141-month sentence at any
facility classified as less than a minimum security facility. Hanhardt alleges in his 2255
petition that his retained counsel provided ineffective assistance of counsel.

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STATEMENT OF FACTS
The Indictment
On November 16, 2000, a superseding indictment was returned charging defendants
Hanhardt, Basinski, Schiro, DeStefano, and Altobello with racketeering conspiracy in
violation of 18 U.S.C. 1962(d), and charging Hanhardt, Basinski, Schiro, and Brown with
conspiracy to transport stolen property in interstate commerce in violation of 18 U.S.C.
371. The indictment also contained a forfeiture allegation seeking forfeiture of $4,845,000,
miscellaneous jewelry, gems and watches, and certain real estate of Hanhardt and DeStefano.
R56.1
The Offenses
Count One
Beginning in or about 1980 and continuing to in or about April 1998, a criminal
enterprise consisting of William A. Hanhardt, Joseph N. Basinski, Paul J. Schiro, Sam
DeStefano, Guy Altobello and others, including James D'Antonio until his death in 1993 and
Robert Paul, since deceased, engaged in an organized nationwide scheme to identify and
target for theft more than 100 jewelry salespersons traveling in interstate commerce with
References in this filing are as follows:

R.
- District Court Record
Tr.
- Transcript of District Court Proceedings
GX
- Government Exhibit in District Court
HPSR
- Hanhardts Presentence Report
CGV
- HPSR - Consolidated Government Version
GSSS
- Governments Supplemental Sentencing Submission
Santiago
- Santiago Proffer
2

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lines of wholesale jewelry valued in excess of $40 million. Over a period of more than fifteen
years, the conspirators committed at least nine jewelry thefts totaling in excess of $5 million
in at least seven states, including Arizona, California, Michigan, Minnesota, Ohio, Texas,
and Wisconsin. R. 211 at 2-5.
Hanhardt was the leader of the enterprise. He supervised Basinski and together they
directed the activities of other conspirators. Hanhardt directed the conspirators in gathering
information on potential jewelry theft targets and in the surveillance of numerous such
individuals to determine the best time and place to steal jewelry from cars and hotels. He
utilized certain Chicago Police Department ("CPD") officers to do database searches of law
enforcement computers to obtain information concerning jewelry salespersons. He caused
a private investigator to conduct database searches to gather personal identifying information
on targets. Hanhardt personally participated in the actual theft of jewelry. R. 211 at 3.
While he was a sworn law enforcement officer, Hanhardt, who retired from the Chicago
Police Department in 1986, committed at least one theft with Basinski and other conspirators,
the October 8, 1984 theft of 180 Baume & Mercier watches valued at approximately
$310,000 from Paul Lachterman in Glendale, Wisconsin. R. 211 at 18; Tr. 10/19/01 at 5.
Basinski identified potential targets by doing physical surveillances, making telephone
calls, making database searches, recruiting additional members for the organization, and
fencing stolen jewelry. Basinski directed and assisted in directing the activities of other
conspirators, including directing their activities on physical surveillances of locations and

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individuals and in the actual theft of jewelry. Basinski maintained information collected on
targets, including National Crime Information Center data illegally obtained by Hanhardt
from the CPD. Basinski also maintained equipment used to surveill jewelers and steal from
them. Basinski personally participated in the actual theft of jewelry. R. 211 at 3-4.
Altobello provided other members of the enterprise with information about jewelry
salespersons that conducted business with Altobello Jewelers, Inc., a Chicago area retail
jewelry store, identifying such persons and providing information about the most opportune
occasion to steal from them. R. 211 at 4. The conspirators, including Basinski, received
information from Altobello concerning the identity of traveling jewelry salespersons, the
nature and quality of their jewelry, and their travel schedules, including Eshagh Kashimallak
and a Yahalom salesman in 1993; Kashimallak in 1995; and Mikan, ESY, and Yahalom
salesmen in 1996. CGV at 33.
The conspirators, including Basinski, obtained, maintained and used various tools and
instrumentalities in order to assist in gaining access to vehicles, vehicle trunks, vehicle
ignitions, hotel rooms, and safety deposit boxes and to avoid detection or to escape law
enforcement, including locksmith tools, keymaking machines, keys, key blanks, lock picks,
"slim jims," smoke grenades, key cutting dies, evasion devices, laser, cam set, bullet proof
vests, and listening devices. During the conspiracy, D'Antonio maintained for the use of the
conspirators at least three loaded weapons and a device consisting of light bulb sized flash
bulbs used to temporarily blind victims. R. 211 at 9.

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The conspirators, including Hanhardt and Basinski, obtained, created, and maintained
hundreds of documents with personal information on more than 100 individuals involved in
the jewelry trade, all for the purpose of stalking and stealing jewelry from those persons. The
information included: names; addresses; telephone numbers; bank account information;
employer information; credit reports; NCIC printouts; car rental agreements; auto VIN
numbers; license plate numbers; drivers license information; dates of birth; non-published
home telephone numbers; frequent flyer numbers and mileage records; surveillance reports;
maps with locations of homes; documents taken from the jewelers trash; and travel itineraries
and analyses. R. 211 at 12.
Count Two
In October 1996, William Brown joined Hanhardt, Basinski, and Schiro in a scheme
to steal the $500,000 line of Baume and Mercier watches of Illinois traveling jewelry
salesman Paul Lachterman as he travelled in Wisconsin and Indiana and to transport the
stolen watches back to Illinois. Hanhardt, Basinski, and other conspirators stole
Lachtermans watch line in 1984 and in 1996 Hanhardt and Basinski targeted Lachterman
again. From April through September 1996, Hanhardt and Basinski stalked Lachterman,
gathering information about him and obtaining a duplicate key to the truck of his car. Then
Basinski contacted Schiro in Phoenix. Schiro drove to Chicago to assist in the theft and
brought Brown with him. On October 1, 1996, the four conspirators followed Lachterman
in two cars as he drove to Wisconsin and met with customers. On October 2, 1996, they

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follow him again as he drove to Indiana. While Lachterman was in a restaurant and while the
others acted as lookouts, Basinski used the duplicate key to open the trunk of Lachtermans
car and removed a case containing $58,000 in watches provided by the FBI. The conspirators
left with the watches, but returned a short time later and put the watches back in the trunk.
Brown did not know what his share was to have been, because you really never know until
the theft is done, but he expected to receive approximately $3000 for his role. R. 211 at 1318; Tr. 5/7/02 at 33-34.
Pre-trial Proceedings and Disposition
On January 10, 2001, all defendants filed a motion seeking recusal of the district
judge. R90. That motion was denied. R112. United States v. Hanhardt, 134 F.Supp.2d 972
(N.D. Ill. 2001). The defendants raised numerous additional pretrial issues and this Court
issued six additional written decisions addressing many of them. United States v. Hanhardt,
151 F.Supp.2d 971, 155 F.Supp.2d 840, 155 F.Supp.2d 861, 156 F.Supp.2d 988, 157
F.Supp.2d 978, 173 F.Supp.2d 801 (N.D. Ill. 2001)(addressing suppression of briefcase
evidence, severance, continuance (2), suppression of wiretap evidence, re-release pending
sentencing, respectively).
All defendants plead guilty to the indictment as follows: DeStefano, by written plea
agreement on August 24, 2001 (Tr. 8/24/01); Basinski, by written plea agreement, August
31, 2001( Tr. 8/31/01); Altobello, by blind plea, September 26, 2001 (Tr. 9/26/01); Schiro,
by plea agreement, October 11, 2001 (Tr. 5/13/02); Hanhardt, by blind plea, October 25,

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2001 (Tr. 10/25/01); Brown, who had been a fugitive until his arrest on February 6, 2002
(Tr. 7/31/02 at 100), by written plea agreement, May 7, 2002 (Tr. 5/7/02).
The defendants were sentenced to imprisonment as follows: Hanhardt on May 2, 2002
to 188 months incarceration (Tr. 5/2/02 at 726-27)2 ; Basinski on May 6, 2002, to 108 months
(Tr. 5/6/02 at 62-63); Schiro on May 13, 2002, to 65 months (Tr. 5/13/02 at 19); DeStefano
on May 20, 2002 to 60 months (Tr. 5/20/02 at 14); Altobello on May 28, 2002, to 65 months
(Tr. 5/28/02 at 194); and Brown on July 31, 2002, to 25 months (Tr. 7/31/02 at 52).
Hanhardts Guilty Plea
At Hanhardts change of plea proceedings on October 25, 2001, Hanhardt was
represented by his lead counsel, Thomas P. Sullivan, and by William A. Von Hoene. Under
oath, Hanhardt told this Court that he had retained Thomas Sullivan to represent him on
December 12, 2000, that he had spoken in person with Mr. Sullivan and his staff a minimum
of once a week in person, telephonically, several times more than that. Tr. 10/25/01 at 8-9.
Hanhardt told this Court that in referring to Mr. Sullivans staff, he was referring to Mr.
Von Hoene and several other attorneys that have worked with Mr. Sullivan and Mr. Von
Hoene at the law firm of Jenner and Block. Id.
Hanhardt entered a blind plea to the indictment. As part of that plea, Mr. Von Hoene
read into the record a statement of facts of Hanhardts criminal conduct. Tr. 10/25/01 at 1013. Under oath, Hanhardt acknowledged that what Mr. Von Hoene had told this Court was
On remand, Hanhardt was re-sentenced to 141 months. R. 409.

7

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what happened and what occurred and that those were the facts upon which he was offering
to plead guilty to both counts of the indictment. Id. at 14.3 All counsel for both Hanhardt and
the government stated that the facts as related by Mr. Von Hoene were legally adequate to
support a plea of guilty to the indictment. Id. at 13-14. The government then proceeded to
state a more detailed description of what the governments evidence would have shown had
the case gone to trial. Id. at 16-39.
After the government had recited its version of what the evidence would have shown
had the case gone to trial, Hanhardt told this Court that, I dont agree with everything he
[AUSA Scully] said and that he was not pleading guilty to Count One in its entirety. Tr.
10/25/01 at 41. Counsel for the parties advised this Court that the parties had differing views
of the details of the evidence and that those would be addressed at the sentencing hearing.
Id. at 39-42. The Court and Hanhardt had the following exchange:
THE COURT: Are you pleading guilty because you are guilty [?]
THE DEFENDANT: Yes sir, I am.
THE COURT: And you have read and discussed this superseding indictment with
your attorneys?
THE DEFENDANT: Yes, sir, I have.
THE COURT: And your plea of guilty is to the indictment, is that right?
THE DEFENDANT: Yes, sir.
At the conclusion of the proceeding, Hanhardt reiterated that he agreed with the factual
basis as read by Mr. Von Hoene. Id. at 58.
8

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Tr. 10/25/01 at 41-42. At Mr. Sullivans request, the Court paused briefly and Hanhardts
counsel consulted with him. Id. at 42. Mr. Sullivan then reiterated that Hanhardt was
pleading guilty to Count One, but, as he had said, he (Hanhardt) did not agree with all the
details that the government had stated. Id.
At this stage of the change-of-plea colloquy the Court inquired regarding the
defendants discovery access to the governments evidence. Tr. 10/25/01 at 48. The
government advised the Court that it had produced to the defense approximately 30,000
pieces of paper, hundreds of telephone recordings, video recordings, photographs of
physical evidence, and a 150 page Santiago proffer. Id. at 40, 48.
Defense counsel and
Hanhardt acknowledged that they had received the discovery and that Hanhardt had
discussed the materials with his counsel and had personally reviewed a good deal of it
himself. Id. at 49.
The Court engaged in extensive discussion with Hanhardt regarding Hanhardts
understanding of the maximum possible sentence, the Guidelines, his rights had he gone to
trial, his waiver of those rights by pleading guilty, his intention to enter a blind plea to the
indictment, one agreement with the government which involved a monetary payment to the
government in lieu of the forfeiture of the family residence, and the extent to which he had
discussed all of those matters with his attorneys. Tr. 10/25/01 at 41-48, 50-57. Hanhardt
repeatedly stated under oath that he understood, that he had discussed the matters with his
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with his lawyers before the Court accepted his plea of guilty. Id. at 41, 44, 45, 47, 48, 50,
52, 53, 55, 56, 57. As the Court accepted Hanhardts plea of guilty, the Court inquired, Is
there anything that you wish to say about your attorney or attorneys in this case? Id. at 57.
Hanhardt responded, No, sir. Id.
At various stages of the proceedings, the Court inquired regarding Hanhardts present
physical and emotional condition, the medications he was taking and even what he had had
for breakfast. Under oath Hanhardt told the Court that he knew what he was doing, that he
was clear minded, that his plea of guilty was voluntary and that he was not being coerced or
forced or pressured to plead guilty. Id. at 49-50. Hanhardt repeatedly stated that he was
pleading guilty because he was in fact guilty. Id. at 41, 50, 57.
At the conclusion of the proceedings, the government told the Court that it had
reviewed the medical records of Hanhardts hospitalization the previous week and had found
nothing that raised any issue of Hanhardts competency and fitness to enter a plea of guilty.
Tr. 10/25/01 at 58-59. The defense agree and added that Mr. Von Hoene had met with
Hanhardt four times since he had been taken into custody the week before, that Mr. Von
Hoene and Mr. Sullivan had both met with Hanhardt that morning, and that the defense was
not raising any issue of competency. Id. at 59-60. Mr. Sullivan told the Court, [I]t is my
opinion that he [Hanhardt] is fully alert, he knows what he is doing, and he is quite capable
of making decisions on his own behalf. Id. at 59. The Court asked, Are you personally
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raising any issue with respect to your competency? And Hanhardt responded, No, sir. I am
not. Id. at 61.
DISCUSSION
Claim of Ineffective Assistance of Counsel
In order to establish a claim of ineffective counsel a defendant must satisfy the twoprong test of Strickland v. Washington, 466 U.S. 688, 688-94 (1984). First, the defendant
must show that his counsels performance fell below an objective standard of reasonableness
under prevailing professional norms. Richardson v. United States, 379 F.3d 485, 487 (7 th
Cir. 2004). The errors complained of must be so serious that counsel did not function as
counsel as guaranteed by the Sixth Amendment. United States v. Holman, 314 F.3d 837,
839 (7 th Cir. 2002). Second, the defendant must prove the errors were prejudicial. Cooper
v. United States, 378 F.3d 638, 640-1 (7 th Cir. 2004). Prejudice is established by showing
there is a reasonable probability that, but for the counsels unprofessional errors, the result
of the proceeding would have been different. Benefiel v. Davis, 357 F.3d 655, 661 (7 th Cir.
2004).
Counsel is presumed to have been effective, and a defendant bears a heavy burden
to establish otherwise. United States v. Malone, 484 F.3d 916, 919 (7 th Cir. 2007). The
presumption in favor of counsels effectiveness is especially strong in the context of a guilty
plea where the petitioner has openly admitted his guilt before the court. See Hill v. Lockhart,
474 U. S. 52, 58 (1985). A defendant must allege and prove that but for counsels errors,
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he would not have pleaded guilty and would have insisted on going to trial. Richardson at
487-88 (Citing Hill at 58-60). Generally, statements at a plea allocution are conclusive
absent credible reasons justifying a departure from those statements apparent truth. United
States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992).
When the alleged deficiency is a failure to investigate, the petitioner must provide the
court with a comprehensive showing of what the investigation would have shown.
Richardson at 488. To establish prejudice from his counsels failure to investigate, a
petitioner must show that if the information had been obtained, it would have led counsel
to change his recommendation as to the plea. Richardson at 488 (Citing Hill at 59).
When a judgment of conviction based upon a guilty plea becomes final and the
defendant seeks to reopen the proceeding, the inquiry is limited to whether the underlying
plea was both counseled and voluntary. Where, as in the present case, the answer is in the
affirmative the conviction and the plea foreclose collateral attack. United States v. Broce, 488
U.S. 563, 569 (1989).
More than five and a half years after his guilty plea, Hanhardt contends for the first
time that his plea was both uncounselled and involuntary. In his petition, Hanhardt contends
that William Von Hoene 4 provided ineffective assistance of counsel by failing to investigate
William Von Hoene has been a highly respected lawyer in Chicago for more than 25 years.
At the time of Hanhardts plea, Mr. Von Hoene was an experienced litigator and partner at the law
firm of Jenner and Block. Most recently, Mr. Von Hoene has been Senior Vice President, Acting
General Counsel, and Deputy General Counsel for Litigation at Exelon Corporation in Chicago.
Sullivans Law Directory, 2005-2006 Edition at 1413.
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Hanhardts competency to enter a plea of guilty, failing to secure Bill Hanhardts medical
records concerning his suicide attempt immediately preceding Bills plea of guilty, failing
to confer with Bills doctor, and ignoring purported claims of one of Hanhardts daughters,
Joene Hanhardt, that her father was not thinking properly and that Bill needed medical
attention. Petition at 10. In a sworn affidavit, Hanhardt contends that at the time of his
guilty plea
my mind and emotions were completely overwhelmed, as was my ability to assert my
wishes. In this condition, I finally and reluctantly just gave in to the pressure of my
counsel and pled guilty, following my counsels lead in my responses in Court.
Hanhardt Affidavit at 23.
In a 2255 proceeding to vacate or correct a sentence, a court is required to hold an
evidentiary hearing [u]nless the motion and the records and files of the case conclusively
show that the prisoner is entitled to no relief .... 28 U.S.C. 2255. No evidentiary hearing
is required if the petitioners allegations cannot be accepted as true because they are
contradicted by the record. Engelen v. United States, 68 F.3d 238, 240 (8 th Cir. 1995).
In the present case the record shows that the parties obtained the medical records of
Hanhardts hospitalization, reviewed them, and concluded that
there is nothing in the records to suggest that Mr. Hanhardt is not able to understand
the nature and consequences of the proceedings today, and nothing to suggest that he
is not able to properly assist with his defense.
Tr. 10/25/01 at 58-60. Hanhardt agreed on the record and under oath. Id. at 61.
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Nor did defense counsel ignore the views of Joene Hanhardt or other members of
Hanhardts family. Quite to the contrary, two weeks after the guilty plea Mr. Von Hoene
brought Joene Hanhardt before the Court to address the Court on behalf of the Hanhardt
family in support of Hanhardts motion for release on bond pending sentencing. Tr. 11/9/01
at 13-14. Numerous other members of the Hanhardt family, including the defendants wife,
were present in the courtroom. Id. at 9. Joene Hanhardt was afforded apple opportunity at
that time to inform the Court of any relevant matters. Id. at 14. However, upon being advised
by the Court that she, like any other witness, would be placed under oath and be subject to
cross examination, she and Hanhardt decided that she would not address the Court.5 Id. at 1417. That proceeding on November 9 also showed that Mr. Von Hoene was fully informed
of the circumstances and the views of the medical personnel attending Hanhardt prior to the
entry of the guilty plea. Id. at 4-9.
The record also refutes Hanhardts claim that at the time of his guilty plea his mind,
his emotions, and his ability to assert his wishes were completely overwhelmed and that
he finally and reluctantly just gave in to the pressure of my counsel and pled guilty.
Hanhardt affidavit at 23. Quite to the contrary, the record shows that Hanhardt was fully
engaged. When he disagreed he said so (Tr. 10/25/01 at 41); when he did not understand he
said so and he sought and obtained clarification and explanation before he proceeded. Id. at
Joene Hanhardts assertions in the present petition are not supported by an affidavit from
her.
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45-48; 53-55. And when he did understand he said that too, over and over again, more than
two dozen times. And all of it was under oath. Id. at 2.
Hanhardt contends that the defense failed to identify specifics of Hanhardts
disagreement with governments version of the offense because Mr. Hanhardt was simply
unclear about what he was doing and incapable to doing it at the time. Petition at 13. That
is not correct. Mr. Sullivan explained that those matters would be dealt with at sentencing.
Tr. 10/25/01 at 42. Hanhardt had already clearly expressed his agreement with the defense
version of the offense and the parties had already agreed that that version was sufficiently
detailed to support a plea of guilty. Id. at 13-14. Not disputing the details of the governments
version was a matter of defense strategy, not Hanhardts confusion.
The record that refutes Hanhardts claim of ineffective assistance of counsel for
failure to investigate his competency to plea guilty includes the statement of his lead counsel,
Thomas P. Sullivan, that [I]t is my opinion that he [Hanhardt] is fully alert, he knows what
he is doing, and he is quite capable of making decisions on his own behalf. Tr. 10/25/01 at
59. Mr. Sullivan has been a preeminent lawyer in Chicago and nationwide for more than
fifty years. He would not have made that statement without first acquiring, personally and
from his colleagues, the knowledge and understanding to support it.6
In naming him its 2004 Person of the Year, the Chicago Lawyer said of Mr. Sullivan:
For 50 years, Tom Sullivan has ben involved in everything: Operation Greylord, the
Chicago 7' trial, the House Un-American Activities Committee, the fight over the
death penalty, fair housing for minorities. But hes not done yet. In 2004, Sullivan
carried his fight to improving fairness in criminal investigations and preserving the
rights of CHA residents. For that and his reputation for ethical practices and legacy
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Request to Modify Sentence

Should his petition to vacate his conviction and sentence fail, Hanhardt asks, in the
alternative, that the Court modify his existing sentence by vacating the finding that Hanhardt
was responsible for the August 23, 1995, armed robbery of jewelry salesman Esagh
Kashimallak. Tr. 5/1/02 at 667. Hanhardt asks that this be done so that he will be eligible to
transfer to the Bureau of Prisons Camp at Oxford, Wisconsin, from the minimum security
prison at Waseca, Minnesota.7
In support of his request, Hanhardt presents no new evidence. Rather, he makes three
arguments. First, he re-argues the evidence presented at his sentencing hearing. Second, he
argues that the Court never intended to increase his sentence because of the Kashimallak
armed robbery and the finding should be vacated because it has had the unintended result of
increasing the severity of his sentence. And third, Hanhardt asks that the finding be vacated
as an act of compassion because of his advanced age and ill health and because of his years
of service in the Chicago Police Department.
This part of Hanhardts petition is also inadequate as a matter of law. The Courts
finding that Hanhardt was responsible for the Kashimallak armed robbery has been upheld
on appeal, is the law of the case, and can not be revisited without just cause. United States
of pro bono work Sullivan is our 2004 Person of the Year.

Chicago Lawyer, December 2004, at 7.
7
Bureau of Prisons regulations prohibit persons whose convictions involved violence from
being assigned to a prison camp.
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v. Hanhardt, 382 F.3d 361, 386-87 (7 th Cir. 2004). Unanticipated consequences is not just
cause. As a matter of law, a petitioner can not base a 2255 petition upon the sentencing
consequences resulting from his guilty plea. Woodruff v. United States, 131 F.3d 1238, 1241
(7 th Cir. 1998).
Even if Hanhardts petition to vacate the Kashimallak armed robbery finding is
properly before the Court, it should be denied. The Courts finding was correct and leniency
for Hanhardt, particularly at the expense of disparaging the honesty of one of his victims, is
not appropriate.
The Court Correctly Found that Hanhardt Was Responsible for the Kashimallak Armed
Robbery
At the sentencing of Hanhardt and Basinski, the government presented evidence that
the conspiracy charged in Count One of the indictment had included the armed robbery of
Esagh Kashimallak on August 23, 1995.8 Following sworn testimony from the victim and
from FBI Special Agent Edward McNamara, the Court found Hanhardt responsible for the
armed robbery. Tr. 5/1/02 at 667.
The evidence at Hanhardts sentencing hearing as to the armed robbery was as
follows: During most of 1996, conversations between Hanhardt and Basinski were being
monitored by the government pursuant to court- authorized interception orders. During 1996,
Hanhardt and Basinski were targeting several traveling jewelry salespersons including the
An exhibit in evidence at the sentencing hearing, GX 23, showed a time line of the events
surrounding the robbery. It is attached as an exhibit to this filing.
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president of Mikan, Inc., a person who only carried his jewelry on his person. In a recorded
conversation on February 29, 1996, Hanhardt told Basinski that he was having problems
obtaining information on one such salesperson from a private detective with whom he was
working. Hanhardt went on to say that nevertheless, predicated on being optimistic, he had
just obtained a new car for his wife (I got Ang a new car). The following conversation then
took place:
HANHARDT:
You know last time I bought a Cadillac, two weeks later

I got a present.(Emphasis added).
BASINSKI:
(Chuckling) Well, I hope, I hope that Ill follow suit.
HANHARDT:
Yeah.
BASINSKI:
Ya know.
HANHARDT:
So do I.
GCV 19; Tr. 4/30/02 at 280-287; GX2, 5,6, 23.

Starting from that conversation, government investigation determined from records
from Weil Oldsmobile in Libertyville and the Illinois Secretary of State that on August 9,
1995, Hanhardt obtained a new 1995 Cadillac Seville from Weil Oldsmobile. Further
investigation determined that on August 23, 1995, two weeks to the day after Hanhardt
purchased that car, traveling jewelry salesperson Eshagh Kashimallak, from whom the
conspirators had stolen $240,000 in jewelry in 1993, was robbed at gunpoint of more than
$750,000 in jewelry in a hotel room at the Fairfield Inn in Brookfield, Wisconsin. Tr.
4/30/02 at 270-71,280-287.
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An additional avenue of investigation pursued by the government were records of a

telephone calling card used by the conspirators from 1993 through 1996 as they traveled
about the country stalking potential theft targets. It was in the fictitious name of John Zeman,
619 N. Racine, Chicago. Calling card records for that card for the day of the armed robbery
of Kashimallak on August 23, 1995, showed seven calls being made, using the card, from
a pay phone at a Holiday Inn in Waukesha, Wisconsin, approximately one mile from the
Fairfield Inn, less than five hours before the robbery occurred. One call was to a non-public
law enforcement number at the Chicago Police Departments 911 Center. CGV at19-20;
R.211 at 2-20; Time Line. Basinski would often call that number, impersonate a police
officer, and obtain law enforcement database information including vehicle identification
numbers on vehicles of jewelers targeted for theft. In all of the records obtained by the
government showing telephone activity of the conspirators, none showed any other telephone
activity in the Waukesha or Brookfield, Wisconsin, areas on any other date. Tr. 4/30/02 at
265-266, 273-74.
Kashimallak also testified. He stated that he was fifty years old, that he was born in
Iran, that his first language was Farsi, and that he had difficulty reading , understanding and
writing English. In the 1993 to 1995 period, he was a traveling wholesale jewelry salesman
selling loose diamonds, pearls and jewelry for H. K. Mallak, a New York company owned
by his brother. Tr. 4/29/02 at 112-122.
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In 1995, Kashimallak had customers in at least seven states, including Illinois and
Wisconsin. Altobello Jewelers in Illinois had been one of his customers since 1988 or 1989.
He would stop at Altobellos three or four times a year and spend between one and six hours
there at each visit. In 1995, Kashimallak carried between $750,000 and $1,500,000 in
merchandise, valued at cost. When he traveled, Kashimallak carried most of his jewelry on
his person, in a vest that he wore over his shirt and under his jacket and in a pouch that he
wore at his waist under his shirt and over his undershirt. Both Frank and Guy Altobello had
seen where Kashimallak carried his jewelry on his person. Tr. 4/29/02 at 117-122.
During the week of August 14, 1995, Kashimallak made arrangements for a sales trip
to Illinois and Wisconsin the following week. Those arrangements included scheduling a visit
to Altobello Jewelers for Thursday, August 24, 1995. On Monday, August 21, Kashimallak
flew to Chicago, rented a car, met with a customer in Naperville and then drove to Appleton,
Wisconsin. He visited customers in Appleton and Green Bay on August 22 and 23 and then
drove to the Fairfield Inn in Brookfield, Wisconsin. He had stayed at the Fairfield Inn six or
seven times in the past and had made a reservation for the current visit approximately one
week before, using a credit card. Tr. 4/29/02 at 122-129.
Kashimallak entered the hotel wearing his vest and pouch and carrying a jewelry case
and his bag. He had between $750,000 and $1,000,000 in jewelry in the vest, pouch and case.
Kashimallak registered, was assigned a room, and was given an electronic room key for
Room 334. The registration process took two or three minutes and it took approximately two
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additional minutes for Kashimallak to reach his room from the front desk via an elevator.
There were persons in line ahead of him in the lobby; no one was on the elevator with him
and no one was in the hallway on the way to his room. He entered the room, turned and
locked the door, and then turned back into the room. The room was dark; one light was on
near the television. Tr. 4/29/02 at 120,134.
As he entered the darkened room he was attacked by two men wearing masks. They
grabbed him, struck him in the head as he called for help, displayed a weapon, and then
struck him on the head with the gun as they forced him to the floor. As he lay on the floor
on his stomach, they pulled his jacket over his head, took his vest and his pouch, and tied
his wrists and ankles with tape. As he was lying on the floor, there was a knock at the door
and one of the men said everything was okay. The robbers took his jewelry case and the cell
phone he had on his belt, but not the money in his pocket. Tr. 4/29/02 at 136-145.
After the robbers left, Kashimallak worked his ankles free, attempted unsuccessfully
to call for help using the room telephone, worked his hands free, and went to the lobby for
help. The local police were summoned, they took a statement from him, videotaped the room,
and videotaped Kashimallak in the room explaining what had happened. Later, he was taken
to the hospital and received stitches for the injury to his head. Tr. 4/29/02 at 145.
Following the direct examination of Kashimallak (Tr. 4/29/02 at 111-158), the defense
conducted an extensive cross-examination, focusing on the details of his description of what
had happened and inconsistencies in the various descriptions he had given of the events over
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the years. Tr. 4/29/02 at 158-255. At the conclusion of the cross examination, the Court
asked counsel whether he had had an adequate opportunity to cross-examine the witness and
counsel responded that the Court had given me more than enough time. Id. 255-56.
This Court found by a preponderance of the evidence that Kashimallak was the victim
of an armed robbery and that Hanhardt and Basinski were responsible for the crime.
Hanhardt continues to assert, as he did on appeal, that there was no reliable evidence that
the robbery occurred and there was conclusive evidence that the robbery was staged by
Kashimallak. Hanhardt at 386-87.
Kashimallak failed a polygraph examination administered by the FBI in New York.
Hanhardt contended on appeal that the report showed that Kashimallak lied about being
robbed and that the district court erred by failing to consider the report and refusing to
receive it in evidence.9 Admissibility of polygraph evidence is a matter within the discretion
of the district court. United States v. Lea, 249 F.3d 632, 638 (7 th Cir. 2001). One of the
questions in the polygraph examination given to Kashimallak was: Were you involved in
any way with the theft of those jewels. R. 356, Def. Ex. 11. This Court noted that such an
ambiguous question would be difficult to answer, even for someone who did not have
Kashimallaks language difficulties, and an examiner might conclude there had been
deception. Tr. 4/30/02 at 310. The ambiguity of the question was, the Court noted, analogous
to asking Ken Starr whether he was involved in any way with Monica Lewinsky. Id.
9
All of the defendants plead to a July,1992, theft of jewelry from traveling salesperson Mel
Draftz. Draftz failed a polygraph test regarding that theft. Tr. 4/30/02 at 308.
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The defense submitted affidavits from police officers who investigated the case and
opined that Kashimallak had faked the robbery. The Court found that the Brookfield officers
worked with limited evidence and reached premature conclusions. The affidavits showed that
the officers had no concept of the tactics of sophisticated thieves. Two of the officers stated
that one of the reasons that they concluded the robbery was a fake was because
Kashimallaks wallet was not taken along with the jewels. Tr. 4/30/02 at 482, 492. They
also stated that because the room was not assigned until Kashimallak registered, it was
impossible for the robbers to have entered his room ahead of him and the odds of that
happening were astronomical and unbelievable. Id. at 476-77, 488-90. The officers had
no concept of sophisticated thieves who possessed master keys for hotels, communicated by
compact, FM transmitters, and were so self-assured of their prowess that they would stand
or sit right next to a target in a public place to get information about him. Id. at 298-306, 395;
Santiago at 153. The defense asserts that the defendants could not have been involved with
an armed robbery because the governments own investigation showed that the conspirators
were non-confrontational and used stealth, not violence, to prey upon their victims. Tr.
4/30/02 at 346; Def. Ex. 18. The assertion is not correct. During the investigation, the
government obtained equipment that had been in the possession of the conspirators and
available to them that included loaded guns, bulletproof vests, military-type smoke grenades,
handcuffs, a taser gun, and a device that creates a blinding flash. Id. at 306-07,456.
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Hanhardt contended that if the conspirators had robbed Kashimallak they would have
done so at the beginning of his sales route when he was carrying the most jewelry. The
contention was meritless. As the record shows, that is precisely the kind of predictability in
which these professional thieves did not indulge. The defendants plead guilty to a theft on
May 7, 1994, of $170,000 in jewelry from representatives of Nafco Gems, Ltd., at the
Skyharbor Airport, Phoenix, Arizona, that occurred as those representatives were returning
from a European selling trip. Tr. 4/30/02 at 464.
Hanhardt has raised a litany of arguments, all of which fail to address the real point
if Kashimallak faked a robbery of himself, the Court would have had to find that the
following were mere coincidences:
-
Of all the days Kashimallak could have picked to rob himself, he just
happened to pick precisely the day referred to by Hanhardt in his I got
a present conversation with Basinski;
Kashimallak was a supplier to Altobello Jewelers;
Altobello Jewelers knew he was traveling with his line and that he
would be at Altobello Jewelers the next day;
The conspirators had stolen from Kashimallak before on August 3,

1993 (Tr. 4/30/02 at 270-71);
It was a characteristic of the conspirators that they maintained

surveillance data on salespersons even after they had stolen from them
once (Basinski and DAntonio briefcases) and would use that data to
strike the same salesperson more than once (Lachterman, 1984, 1996;
Draftz, 1992, 1993; Kashimallak, 1993, 1995);
Records of a telephone calling card used by the conspirators as they

stalked their theft targets provided the roadmap that led the government
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to many of the other thefts to which the defendants plead guilty. The
card was used from a payphone a mile from the scene of the robbery
less than five hours before the robbery occurred;
-
The one and only time that the calling card used by the conspirators as
they stalked their theft targets was ever used in the area where the
robbery occurred was on the very day Kashimallak was robbed;
The conspirators stalked several salespersons who carried their line on

their person and from whom the conspirators could steal only by
physical confrontation and the use of force;
The conspirators maintained loaded weapons and other devices for

physical confrontation and the use of force.
Tr. 4/29/02 at 112-253; 4/30/02 at 263-475.

Based on the totality of the circumstantial evidence and the Courts assessment of the
credibility of the witnesses, the finding that the preponderance of the evidence established
Hanhardts and Basinskis responsibility for the Kashemallak robbery was correct.
Leniency For Hanhardt Would Not Be Appropriate
Hanhardt continues to argue that he should be given greater credit for his years with
the Chicago Police Department. The record demonstrates otherwise. He is the highest
ranking Chicago police officer to be convicted of crimes. Throughout his 33 year tenure at
the CPD, he was one of The Outfits people at the CPD. CGV at 41-64; Tr. 5/1/02 at 696.
To this day Hanhardt has continued to be a public disgrace to the CPD. Sworn
testimony reported in the public press from the just-completed trial in United States v.
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Calabrese, 02 CR 1050,10 asserted that in the 1960's, Hanhardt took $1000 per month and a
new car every two years in bribes from Outfit boss Angelo Volpe. Chicago Sun-Times, July
26, 2007. (A copy of the article is attached).
As Hanhardt seeks the leniency of this Court, citing his advanced age, ill health, and
unexpired prison term, former Assistant United States Attorney John Scullys concluding
words in the governments statement to the Court at Hanhardts sentencing hearing remain
a clear expression why such leniency is not inappropriate:
His greed and loyalty was to the Mob and to his Mob-associated jewelry theft crew,
which were more important to him than his family, the Chicago Police Department,
or the citizens that he swore to protect.
Tr. 5/1/02 at 700.
10
On the date of the filing of this response, September 10, 2007, the jury convicted all five
defendants in Calabrese on all counts, including racketeering, extortion, conducting an illegal
gambling business, obstruction of justice, and tax fraud.
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CONCLUSION
For the reasons set forth above, the government asks that this Court dismiss petitioner
William Hanhardts motion to vacate and set aside his conviction and sentence for failure to
state a claim upon which relief can be granted or, in the alternative, deny the petition.
Respectfully submitted,
PATRICK J. FITZGERALD
United States Attorney
By:
/s/ John F. Podliska

JOHN F. PODLISKA
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-2815
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CERTIFICATE OF SERVICE
The undersigned Assistant United States Attorney hereby certifies that

GOVERNMENTS MOTION TO DISMISS
PETITIONER WILLIAM HANHARDTS MOTION TO VACATE
CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. 2255
EXHIBIT
were served on September 10, 2007, in accordance with Fed. R. Crim. P. 49, Fed. R. Civ. P. 5, LR
5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district courts system
as to ECF filers:
Jeffrey Bruce Steinback
jbs.law@insightbb.com
/s/ John F. Podliska
JOHN F. PODLISKA
219 S. Dearborn St. - 5th Floor
Chicago, IL 60604
(312) 353-2815
john.podliska@usdoj.gov
28
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UITED STATES DISTRICT COURT

ORTHER DISTRICT OF ILLIOIS
EASTER DIVISIO
UITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
WILLIAM HAHARDT,
Defendant.
o.
07 CV 2542
00 CR 853-1
The Honorable
Charles R. orgle, Sr.,
Judge Presiding.
REPLY TO THE GOVERMET'S MOTIO TO DISMISS

NOW COMES the defendant, WILLIAM HANHARDT (hereinafter "Hanhardt" or "Bill
Hanhardt"), by and through his attorney, JEFFREY B. STEINBACK, and files this Reply to the
Government's Motion to Dismiss Petitioner William Hanhardt's Motion to Vacate Conviction
and Sentence Pursuant to 28 U.S.C. 2255.
DISCUSSIO
WILLIAM HAHARDT WAS DEIED HIS COSTITUTIOAL
RIGHT TO EFFECTIVE ASSISTACE OF COUSEL.
Due process requires a court to hold a hearing whenever evidence raises a sufficient
doubt about the mental competency of an accused to stand trial. Pate v. Robinson, 383 U.S. 375,
378, 86 S.Ct. 836 (1966). Similarly, the degree of competence necessary to plead guilty is
identical to the degree of competence to stand trial. Godinez v. Moran, 509 U.S. 389, 113 S.Ct.
2680 (1993).

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The Government urges this Court to dismiss Hanhardt's 2255 motion, contending that
the allegations cannot be accepted as true because they are contradicted by the record. (Gov.
Motion, page 13) However, a careful review of the facts illustrates that the Government's
position is unfounded and that, under the law, Hanhardt's 2255 motion must be granted.
The Government's initial argument is that the prosecutor and defense counsel reviewed
the medical records of Hanhardt's hospitalization the previous week and found nothing that
raised any issue of Hanhardt's competency and fitness to enter a plea of guilty.l (Gov. Motion,
pages 10, 13) The Government's argument conveniently overlooks or ignores the fact that
Hanhardt's hospitalization stemmed from his attempted suicide nine days before he entered his
plea of guilty. 2 Contrary to the Government's position, the medical records establish that a bona
fide doubt existed as to Hanhardt's competency to enter a plea of guilty nine days after he tried to
kill himself.
On October 16, 2001, William Hanhardt attempted to commit suicide by taking an
overdose of his prescription medication. As a result, Hanhardt was hospitalized at Highland
___________________
It must be noted that the Government itself was impelled to raise the question of Hanhardt's
competency at the end of the proceedings. On page 58 of the change of plea hearing on October 25,
2001, the prosecutor, unprompted by defense counsel, took it upon himself to raise the issue of
Hanhardts competency, only in the most conclusory terms, and only then so that he could knock it down.
Given the state of the record, it is understandable why the prosecutor felt he had to do something to
attempt to protect an otherwise indefensible oversight.
1
2 The
Government's argument reads as though Hanhardt was hospitalized the week before his plea
of guilty for some benign reason totally unrelated to the issue of his competency to enter the blind plea of
guilty, rather than Hanhardt being chained to a bed, isolated from family, in a psychiatric ward guarded
by police on a suicide-watch around-the-clock following a genuine attempt to kill himself.

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Park Hospital, where his treating physician was Dr. Bernard E. Lakemaker. In Hanhardt's
medical record, Dr. Lakemaker wrote that Hanhardt had taken four Ambian and 20 Oxycontin
(an opiate pain killer/Schedule 2 narcotic) with the intent of killing himself.3 Dr. Lakemaker's
notes state that this medication was in a potentially lethal dose, readily capable of killing
Hanhardt at this volume. Indeed, Hanhardt was found by his wife during the early morning hours
to be unconscious and unresponsive, prompting her to call the paramedics. Upon his arrival at
the hospital, his vital signs were found to be unstable and he was admitted to the Intensive Care
Unit. Hanhardt remained unconscious or incommunicative throughout the evening and into the
next afternoon.
Dr. Lakemakers medical report further states, "[Hanhardt] has spoken with Dr.
Lakemaker about his depression and anxiety. This gentleman has been markedly depressed for
the past five years. . . . The patient has had suicidal preoccupations for the past six months and
no sexual interest. Clinical data was obtained from the emergency room doctor, Dr. Lakemaker,
and the patient. The patient's feelings about the illness is that he wishes he were dead because of
the possible outcome of the legal situation is so devastating to him."
Additional medical records concerning Hanhardts hospitalization were generated by Dr.
Leonard Carr, another attending psychiatrist who authored these clinical observations: (See
Patient Progress Notes of October 18, 2001, appended hereto as Exhibit A)
"This man is seen as a serious suicidal risk and should be on the highest level
of suicide precautions. (He is a bright & skillful man and may be very clever at
trying to kill himself.) The patient is to be checked for contra brand that may
assist suicide. He needs continuing medications and psychotherapy to deal with
the depression. "
___________________
3
Hanhardt's medical records were appended to his 2255 motion.

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In similar fashion, under the heading TREATMENT PLAN, Dr. Lakemaker wrote that
Hanhardt "meets the criteria for inpatient admission." In Hanhardt's Discharge Notes, dated
October 18, 2001, Dr. Lakemaker wrote:
"...He needs continuing medications and psychotherapy to deal
with the depression. "
Hanhardts resulting diagnosis as of October 18, 2001, was Major Depression,
Recurrent; and Opiate Overdose Severe.
After reviewing these medical records, several pre-plea hearings were conducted before
the Court. During one of the discussions about Dr. Lakemakers medical reports concerning
certain statements Hanhardt made to the doctor after he regained consciousness, one of
Hanhardts attorneys, Mr. Thomas Sullivan, made this statement to the Court: The point I was
going to make is that at the times that Mr. Hanhardt made those statements, he may not have
been compus mentus, continuing, Mr. Sullivan stated: what we have been told by Dr.
Totonchihe is the doctor that did the operation that prescribed the drughe has told us that
that amount of that drug would be fatal. (See hearing of October 16, 2001 at pages 10, 11).
Not surprisingly, in these pre-plea proceedings, the Government never disputed the
evidence that Hanhardt meant to kill himself by taking a serious overdose of drugs. Indeed, one
of the Government attorneys, at the October 16, 2001 status before the Court, observed: the
medical records are clear. That the toxicology screen for Mr. Hanhardt was positive for opiates.
The final diagnosis of the hospital states: 1. Opiate overdose, 2. Suicidal ideation. (See page
12 of October 16, 2001 hearing at lines 14-17)
As such, in the days immediately leading up to Hanhardts blind plea of guilty in this
case, we have an individual who made a serious attempt on his life. He took enough opiates to
kill himself at least three times over. He lapsed into unconsciousness and could not be revived

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for the better part of a full day. His family reported to his attorneys that he was severely
depressed, anxious and overcome with feelings of hopelessness. The attending psychiatrist
issued medical reports, providing a consensus of medical opinions, that he continued to present a
serious suicidal risk and should be placed on the highest level of suicide precautions. He was
diagnosed with major recurrent depression. The motivation for suicide was stated to be the very
legal situation which then confronted him and was overwhelming to him. Questions were raised
about Hanhardts compus mentus by his own attorney. Government counsel did not dispute,
nor could they credibly have disputed his desperate mental state.
Yet, the Governments principle response to our petition is that there was nothing found
in the medical records of Hanhardts hospitalization which raised any issue concerning his
competency and fitness to enter a plea of guilty.
There could be no serious debate that there is an almost ubiquitous presence of mental
illness in those who commit suicideit is tempting when looking at the life of anyone who has
committed suicide to read into the decision to die a vastly complex web of reasons; and, of
course, such complexity is warranted. No one illness or event causes suicide; and certainly no
one knows all or perhaps even most, of the motivations behind the killing of the self. But
psychopathology is almost always there, and its deadliness is fierce any sane doctor knows
that the reasons for suicide are invariably psychopathology. (See Jamisons Night Falls Fast Understanding Suicide at 31,85(1999)) For the Government to maintain this position in the full
view of these records is to blink its eyes at reality.
In Estock v. Lane, 842 F.2d 184, 187 (7th Cir. 1988), the Seventh Circuit held that a bona
fide doubt of competency existed when the defendant attempted suicide and was diagnosed as
"paranoid personality, borderline on psychotic." Similarly, in United States v. Loyola-

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Dominguez, 125 F 3d 1315, 1318 (9th Cir. 1997), the Ninth Circuit reversed the defendant's
conviction and remanded for an evidentiary hearing and held, "[a]n attempted suicide is an
extremely serious action."
In this case, Hanhardts attorneys, Mr. Sullivan and Mr. William Von Hoene failed to file
any motion, either seeking a competency determination or a psychiatrist evaluation to determine
their clients fitness to enter a blind plea on October 25, 2001. In so doing, they not only ignored
the overwhelming medical evidence concerning their clients extremely recent suicide attempt,
and his diagnosis of major recurrent depression, but also the critical series of events, of which
they were aware, over the preceding few months, which clearly raised a bona fide doubt as to
Hanhardts competency to enter a plea at that time.
It was August 29, 2001, when Hanhardts defense counsel informed the Court that
Hanhardt had just undergone surgery the day before for a possible recurrence of testicular
cancer. It was on the September 11, 2001 status when defense counsel advised the Court that
Hanhardt had a tumor removed, resulting in severe, unremitting swelling and pain, and requiring
significant levels of pain medication and six weeks of recuperation. It was then that trial was
reset for October 16, 2001.
Later, on October 9, 2001, Hanhardts attorneys moved that the October 16th trial date be
continued because of the extreme pain Hanhardt still suffered, resulting in his ability to sit for
any length of time, which would make a lengthy trial schedule unbearable.
The medical
evidence supporting Mr. Hanhardts condition was unrebutted. On October 11, 2001, the Court
denied the defense motion on the basis that the trial would only go 4 days per week, with breaks
and that Hanhardt would be able to bring whatever he needed to find some comfort level.
It is important in this context to note that Hanhardt, earlier that year, had undergone an

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additional surgery caused by spinal stenosis and a variety of arthritic conditions and disk bulges,
generating severe pain. Months before his cancer surgery, Hanhardt had become dependent on
an array of powerful painkillers.
Sometime following the October 11, 2001 continuance denial, Hanhardts defense
attorney advised the Court and the Government that Hanhardt would plead guilty on October
16th. The day before the October 16th hearing, Sullivan and Von Hoene met with Hanhardt to
discuss his Court appearance scheduled for the following day. It was during this meeting that
Sullivan told Hanhardt that if he did not plead guilty the next day, the trial would be a terrible
event for both Hanhardt and his family. Hanhardt recalls Sullivan using the words blood bath
to describe the trial.
It was during this same meeting that Sullivan and Von Hoene addressed
the financial status of Hanhardts legal situation should he desire to proceed to trial. They both
informed Hanhardt and his wife, Angeline, that the trial would cost several hundred thousand
dollars beyond what had already been paid to that point. Hanhardt knew that both he and his
family members had depleted their resources and would not be able to afford a trial. Sullivan
proceeded further to advise Hanhardt that a trial could result in forfeitures which would have the
effect of taking his pension and leaving his wife of more than 50 years without a home.
Hanhardt had been depressed for some time. He had depleted not only his own monies, but
those of his family. He was in constant pain and found the prospect that Angeline would lose
everything absolutely unbearable. It was later that same night and into the early morning hours
of the next day when Hanhardt attempted suicide. It is little wonder that the medical reports
reflect that after Hanhardt regained consciousness, he advised the attending psychiatrist that he
could not live with his current legal predicament. Both Sullivan and Von Hoene were well
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at least a cursory review of the medical records and having spoken to Hanhardts family.
In her affidavit, appended hereto as Exhibit B, Angeline Hanhardt confirms her
husbands mental condition over the several weeks prior to his attempted suicide. Mrs. Hanhardt
states that her husbands depression, anxiety and inability to think properly grew worse and
worse leading up to Hanhardts attempted suicide on October 16th. Mrs. Hanhardt goes on to
describe the bitter exchange which occurred when she voiced her observations about her
husband and concerns to Von Hoene over the telephone the weekend just prior to the scheduled
guilty plea.
There could be no doubt that Hanhardts attorneys were made painfully aware of the
magnitude of their clients mental illness by his family in the aftermath of his suicide attempt in
the days before his guilty plea.
One week prior to Hanhardts blind plea, the Court ordered that a warrant issue for
Hanhardts arrest. During that hearing, one of the prosecutors discussed with the Court an
aspect of Dr. Carrs medical report.
In discussing Hanhardts needs (for) continuing
medication and psychotherapy to deal with (his) depression, the doctor observed that Hanhardt
would be transferred from Highland Park Hospital to one of two other hospitals, either U of IC
which Dr. Carr stated was his choice because they can deal with his level of severity or to
Bethany Hospital for treatment. The prosecutor, in response to Von Hoenes concern that Dr.
Carr would not have privileges at these hospitals, stated: we could see if we could arrange
for Dr. Carr (to continue treatment at one of these hospitals). But I think that the medical and
psychiatric facilities of the Bureau of Prisons would be adequate to deal with any issues that Mr.
Hanhardt might experience. (See October 18, 2001 proceedings at Page 6 lines 2-6).

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In response, the Court, among other things, shared these observations: Now, this issue
of (Hanhardts) mental health has been raised as a result of his own conduct.
Now, if the issue of mental health remains here, as apparently the defendant argues it
does, then the Bureau of Prisons should determine his placement pending trial.
The Government has recommended a placement at Bethany Hospital in the U of I
Chicago medical facility. As a practical matter, that would seem to be reasonable placement.
It would permit the defendants experts, should he decide to pursue this, to deal with him
there, and it would also permit an expert to be determined by the Government to deal with the
issues related to Mr. Hanhardts mental health. (See October 18, 2001 hearing at Pages 7, 8)
By this time, Hanhardts attorneys had been unequivocally informed by the medical
records that he was suffering from major recurrent depression, that he had taken an overdose of
painkillers involving a lethal dose, that he had been unconscious for the better part of a day, that
he was on round-the-clock suicide watch of the highest level, that he was dealing with constant
levels of both mental and physical pain, and that his depression, anxiety and feelings of
helplessness had only worsened.
In full view of all of this, the Court squarely confronted Hanhardts attorneys with this
critical inquiry: Now, I dont know, Mr. Von Hoene or Mr. Sullivan if you intend to file a
motion dealing with competency for trial, or whether you want this matter to proceed routinely.
(See October 18, 2001 hearing at pages 8, 9). Incredibly, in response to this, defense counsel
asserted: Your Honor, I think just routinely and if Mr. Hanhardt is capable of coming along,
we will bring him along. (See October 18, 2001 hearing at page 9, lines 3-7).
Hanhardts mental health could hardly be said to have improved in the days following the
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Hanhardt was taken into custody by US Marshalls, handcuffed and transferred to Bethany
Hospital, where he was held under 24 hour police guard with one hand shackled to his bed. He
was permitted no family visits or phone communication.4
On October 21, 2001, Hanhardt was transferred out of Bethany and to the Metropolitan
Correctional Center, a non-psychiatric facility. Hanhardt was held there through and after his
October 25th blind plea.
Now, the Governments response also urges this Court to deny relief on the claim that
Hanhardts responses in Court demonstrate that he was competent to enter a plea of guilty.
(Government motion pages 10, 15). It is true that Hanhardt stood before the Court, and, calling
upon every ounce of strength and dignity he could muster, answered the Courts questions.
The Government relies on some of those answers. However, when a bona fide doubt exists as to
the competency of the accused, as it did in this case, it is axiomatic that his competency cannot
be determined by his simply saying that he is competent.
Moreover, there are significant aspects in the change-of-plea hearing which suggest that
Hanhardt was confused over the significance of his blind plea:
THE COURT: And as to the rights that you would be giving up upon your plea of guilty,
when you did talk to your lawyers, were their statements to you consistent with what I
have just said?
THE DEFENDANT: With one exception: my right to have an appeal to the Title III.
THE COURT: This is not a conditional plea - THE DEFENDANT: I understand that, your Honor.
THE COURT: - - of guilty.
Hanhardts wife was the sole exception. She was permitted one approximately three minute
phone call during this time frame.
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THE DEFENDANT: But you are asking me

THE COURT: Does the Government understand this to be a conditional plea of guilty?
MR. PODLISKA: It is not.
THE COURT: Does the Government agree to a conditional plea of guilty?
MR. PODLISKA: No.
THE COURT: Is this presented to the Court as a conditional plea of guilty?
MR. SULLIVAN: Your Honor, we have advised Mr. Hanhardt that by entering this plea
of guilty he is giving up his right of appeal from your Honors denial of the pretrial
motion to suppress.
THE COURT: Is that correct, Mr. Hanhardt?
THE DEFENDANT: It is at this moment, yes, sir. It wasnt prior to coming in here.
THE COURT: Well, this might be an appropriate time to take a short coffee break.
(See change of plea hearing transcript at Pages 45, 46 appended hereto as Exhibit C).
A blind plea, by its very nature, carries with it a great deal of uncertainty. There is no
sentencing agreement. There are no understandings between the parties regarding monetary
penalties. There is no written delineation of the rights one waives as a consequence of it. In
order for an accused knowingly and voluntarily to change his plea, he must be in possession of
his complete mental facilities and be emotionally stable. This is all the more so in Hanhardts
case. Although Hanhardt was proposing to plead guilty, the Government opposed any leniency
for acceptance of responsibility. The Government would seek an upward departure from the
sentencing guideline based on the Kashimallak robbery, although this was uncharged in the
indictment. The defense had pursued a significant motion to suppress. Yet, well into the change
of plea hearing, Hanhardt did not even realize that he was abandoning his right to appeal the
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Courts denial of that motion. To the contrary, it is evident that at least Hanhardt believed that
his plea was conditional. The remainder of Hanhardts life hung in the balance.
The Court took a brief adjournment after Hanhardts obvious confusion over the import
of his plea. In so doing, the Court provided defense counsel with one more opportunity to raise
the issue of Hanhardts competency at that time. Once again, defense counsel failed to do so.
It was only after the Court completed its colloquy with Hanhardt that the Government,
not the defense, felt compelled to raise the issue of Hanhardts competency, if only conveniently
to knock it back down.
On November 8, 2001, approximately 2 weeks after Hanhardts blind plea of guilty, there
was a motion before the Court for Hanhardts release on bond pending sentencing.
The
Government in its current motion to dismiss states as follows:

"Joene Hanhardt was afforded apple (sic) opportunity at that time to inform the
Court of any relevant matters. However, upon being advised by the Court that she,
like any other witness, would be placed under oath and be subject to cross
examination, she and Hanhardt decided that she would not address the Court."
(Gov. Motion p.14)
Joene Hanhardt was in court, fully prepared to address the Court and willing to be
subjected to cross-examination. However, before she was to address the Court, Sullivan
requested and received a brief recess from the Court. It was during that recess that Sullivan
pushed Hanhardt into a position where Hanhardt would not permit her to testify. Hanhardt was
so upset that he told his daughter that if she attempted to speak, that he would simply abandon
his motion. A decision was made by Sullivan, with which Hanhardt concurred, and Joene
Hanhardt was precluded from addressing the Court. The Affidavit of Joene Hanhardt is
appended hereto as Exhibit D.
In light of the above, Sullivans and Von Hoenes failure to seek a competency hearing
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for Hanhardt, or at least a mental health status examination prior to his change of plea
constituted ineffective assistance of counsel. Mr. Sullivan and Mr. Von Honee enjoy excellent
reputations in the legal community, but this was not their best day. Repeatedly, this Court
provided defense counsel with the opportunity to make the required motions. Despite the ready
availability of qualified psychiatric experts, there was no request for a psychiatric evaluation.
Had such a request been made, in these circumstances there is more than a reasonable
probability that this court would have ordered a competency hearing. Hanhardts mental status
cried out for evaluation. His mental condition demanded immediate, on-going psychotherapy
and continual monitoring. In these circumstances, Hanhardts defense attorneys assistance must
be deemed ineffective. The resulting prejudice to Hanhardt manifested itself in his loss of his
right to a conditional appeal, his inability to assist his attorneys defending against the
Kashimallak allegation and his loss of acceptance of responsibility.
THIS COURT IS URGED TO REMOVE THE ELEMET OF

VIOLECE FROM HAHARDT'S SETECIG ORDER
The Government contends that the Seventh Circuit upheld the finding that Hanhardt was
responsible for the purported armed robbery of Esagh Kashimallak and that this finding cannot
be revisited without just cause. (Gov. Motion, p. 16)
The essence of the issue on appeal involved the propriety of the sentence by this Court.
The panel in Hanhardt began its analysis by noting that the Government sought an enhancement
for the physical restraint of a victim ( 3A1.3) (2 levels) and an upward departure for the use of a
weapon in the commission of a crime ( 5K2.6) (6 levels) and bodily injury to a victim ( 2B3.1)
(2 levels). United States v. Hanhardt, 361 F.3d 382,387 (7th Cir. 2004). The panel went on to
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observe that this Court had "found by a preponderance of the evidence that Hanhardt was
responsible for the armed robbery." Id The Seventh Circuit hastened to add this: "However, the
court declined to impose either the upward departure or the enhancement and sentenced
Hanhardt to the high end of the guideline range." Id. The Hanhardt court also observed that this
Court did not increase Hanhardt's offense level and that there was no indication in the record that
the court's finding of responsibility had any bearing on its decision to sentence Hanhardt at the
high end of the applicable guideline range. ld.
The question now is whether the element of violence should be removed from Mr.
Hanhardt's sentencing order. The Government takes the position that this Court should not
remove the element of violence because it would be "at the expense of disparaging the honesty
of [Kashimallak]." (Gov. Motion, p. 17) The short answer to the Government's contention is that
Kashimallak never said Hanhardt robbed him. Rather, it was only later that the Government
claimed that it was Hanhardt who was among those that were somehow involved in the
Kashimallak robbery. Therefore, the removal of the element of violence from Mr. Hanhardt's
sentencing order will not disparage Kashimallak's reputation for honesty.5
___________________
5 Any disparagement to Kashimallak's reputation for honesty came about long before Hanhardt
was sentenced. Several high ranking police officers in Wisconsin did not believe Kashimallak's tale of
being robbed in his hotel room in the manner he claimed. A jury did not believe Kashimallak in his civil
lawsuit against the hotel where the purported armed robbery took place. The Government even concedes
in these proceedings that Kashimallak failed a polygraph examination administered by the FBI in New
York. (Gov. Motion, page 22) Removal of the element of violence is also consistent with the lack of any
direct proof that Hanhardt was involved with this incident. There is no eyewitness testimony; no
fingerprints; no one who ever claimed to have seen Hanhardt in the vicinity; no proceeds ever tied to
Hanhardt.
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Instead, the Government engages in speculation and conjecture about the circumstances
surrounding the Kashimallak incident. The Government first returns to its reference to the
intercepted conversation, dated February 29, 1996, between Hanhardt and Basinski. (Gov.
Motion p. 18). During the entirety of this conversation, there is absolutely no reference to either
Kashimallak, a robbery, the location of a robbery, jewelry or the concealment of a robbery, or
any other detail concerning the Kashimallak incident. Instead, there is an oblique reference by
Hanhardt to having leased a new car for his wife.
In short, not a shred of direct evidence
suggesting either Hanhardt or Basinski even knew about the Kashimallak robbery, if one ever
occurred. Still, the Government attempts to reverse engineer the import of this conversation as
somehow demonstrating that Hanhardt and Basinski knew when Kashimallak would have been
robbed. However clever this effort on the part of the Government, it ultimately fails for its
inconsistency with the actual evidence produced by the Government during the sentencing.
There, the Government produced evidence that Hanhardt had obtained a 1995 Cadillac from
Weil Oldsmobile in Libertyville on August 9, 1995. It was a leased car for his wife. The
evidence further demonstrates that Kashimallak did not even make his Wisconsin hotel
reservation until August 16, 1995. He claimed he was robbed a week later on August 23, 1995.
As such, to credit the Governments theory here, Hanhardt would have had to be clairvoyant. He
would have had to know a week before Kashimallak himself knew that Kashimallak would make
reservations at a hotel, at which he might be robbed 7 days later. Reliance on such rank
speculation does little more than demonstrate the overall weakness of the case against Hanhardt
on the Kashimallak incident.
Next, the Government's assertion that Kashimallak was a supplier to Altobello Jewelers
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exists in a vacuum with no mention being made of the vast number of other jewelry salesmen
who also supplied Altobello Jewelers over the decades; suppliers who were never robbed or
otherwise accosted. The Government suggests that Altobello Jewelers knew that Kashimallak
was traveling with his line and would be at Altobello Jewelers the next day (August 24, 1995).
However, it produced no evidence that Altobello knew the whereabouts of Kashimallak
prior to his expected arrival at their store on August 24, 1995. There was no evidence that
defendant Altobello or anyone else knew the whereabouts of Kashimallak in the days preceding
August 24th, or indeed when it was that he would be returning to the Chicago area, much less that
he would travel to an obscure hotel room in Appleton, Wisconsin -- more than 100 miles from
the Altobello Jewelry store.
The Government overlooks this Courts finding that there was insufficient evidence to
establish that Hanhardt had used any weapons, or that Hanhardt had caused any bodily harm to
Kashimallak or even that Hanhardt was in the same room as Kashimallak. (R 362-20 at 717).
The reason there was no such evidence is because Hanhardt simply was not involved in the
Kashimallak incident. It is always difficult to prove a negative. Hanhardt has expressed a longstanding willingness to undergo FBI polygraph examination on this issue. The Government has
never taken him up on this open invitation. Of course, the Grand Jury Indictment itself, alleging
a series of carefully orchestrated burglaries, scrupulously calculated to insure that victims were
never confronted, strongly militates against the violence finding in this case.
The best reason for removal of this violence element is that Hanhardt is actually innocent
of the Kashimallak incident.
16

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LEIECY ISSUE
The Government also urges this Court to deny relief in this matter based upon testimony
elicited during the trial in United States v. Frank Calabrese, which has been dubbed the Family
Secrets trial. According to the Government, the testimony of a convicted felon, turned
Government informant, included allegations that sometime in the 1960's Hanhardt took $1,000
per month and a new car every two years in bribes. (Gov. Motion, p. 26) These allegations
should not be considered by this Court for several reasons.
First, nothing of the sort was ever suggested at any point in the prosecution of Hanhardt,
until now, more than six years after his expected date of trial and subsequent change of plea.
These allegations are 40-45 years old, far too remote to the present offense.
Second, conveniently, the Government fails to offer any corroborative evidence of its
extraordinarily belated attempt at guilt by association relative to the aforementioned accusations.
No evidence of vehicle titles, registrations, or other public documents to support the "new car
every two years"; nor any evidence of the allegedly concurrent monthly payments.
Third, Hanhardt was never given any notice concerning this witness.
He had no
opportunity to confront the evidence, much less cross-examine this convicted felon, Government
informant. In its place, the Government quotes the hearsay summary from a local newspaper
article (which it attaches to its response) about an unrelated trial of other individuals.
Finally, these allegations from the Family Secrets trial are categorically denied. In sharp
contrast, are several letters of commendation and praise from the Department of Justice, Federal
Bureau of Investigation. They are dated as follows: June 2, 1964; June 14, 1966; June 7, 1967;
June 9, 1967; November 7, 1967; May 1, 1970; January 3, 1972. The letter dated January 3,
1972 is over J. Edgar Hoover's signature. All of these letters praise the investigative and law
17

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enforcement efforts in which Hanhardt was involved while working in conjunction with the FBI.
(Appended hereto as Group Exhibit E)
DECLIIG HEALTH
William Hanhardt will be 79 years old on December 15th. In the past, this Court has been
apprised of Mr. Hanhardt's ill-health. For example, the Probation Officer informed this Court in
2002 regarding Hanhardt's bouts with Stage I seminomas (testicular cancer) resulting in three
surgical procedures and the removal of both testicles and spermatic cord. (PSR Lines 676-680)
The Probation Officer also verified that Hanhardt was rushed to the hospital on three separate
occasions for congestive heart failure. (PSR Lines 680-682) The Probation Officer informed this
Court that Hanhardt has been suffering from spinal stenosis (the narrowing of the spinal cord
that causes serious back problems) since 1994. (PSR Lines 683-684) The Probation Officer also
noted in 2002 that Hanhardt has borderline emphysema. (PSR Lines 685-687)
More recently, in his position paper pursuant to the limited Paladino remand, which was
filed in 2005, Mr. Hanhardt informed this Honorable Court that his health has continued to
decline during his incarceration. Hanhardt explained that he has lost all of his bottom teeth on
one side of his mouth and all of the top teeth on the opposite side of his mouth, creating obvious
and significant problems with his ability to chew and eat. It took literally years for the prison to
address this problem. Hanhardt has also been diagnosed as suffering from an ulcer, for which he
has been placed on medication.
Currently, Hanhardt continues to have heart problems, breathing problems (most likely
emphysema), and severe back pain from the spinal stenosis. Most days find Hanhardt doubled
over in pain; on some, he is simply unable to stand up. His wife of nearly 58 years is 80 years
18

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old and, herself, in poor health. They have been apart now for over 6 years. Bill longs to be
closer to her and remains beset with depression as a constant host to his chronic, unrelenting
medical problems, contributing to his state of steady decline.
In weighing its decision, we urge that this Court consider Judge Posner's closing words in
United States v. Jackson, 835 F.2d 1195, 1200 (7th Cir. 1987): "A civilized society locks up
such people until age makes them harmless but it does not keep them in prison until they die."
The removal of the element of violence from Mr. Hanhardt's record will be in keeping
with this Court's sentencing decision not to enhance his offense level or depart upward for the
Kashimallak incident.
Conclusion
This petition represents the last hope of William Hanhardt, his wife, his seven children
and their families for some glimmer of relief. Had the lack of Hanhardts fitness been properly
presented at the time proposed for his change of plea, it would have resulted in a competency
hearing, enabling the Court to view the full extent of his mental illness. It would have also
enabled Hanhardt time to recover and effectively assist his counsel particularly in defending
himself against the Kashimallak allegations.
As noted above, this Court declined to impose either the physical restraint enhancement
or the upward departure at the initial sentencing. The removal of the element of violence from
Hanhardts sentencing order will constitute a natural extension of the original sentencing
decision.
19

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Accordingly, we pray for this relief and such other relief as this Court may deem just,
proper and equitable.
/s/ Jeffrey B. Steinback

Jeffrey B. Steinback
Attorney for William Hanhardt
JEFFREY B. STEINBACK
Attorney at Law
53 West Jackson Blvd.
Suite 1420
Chicago, IL 60604
(847) 624-9600
20

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STATE OF ILLINOIS
COUNTY OF COOK
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ss
AFFIDAVIT OF JOEE HAHARDT

I, Joene Hanhardt, being first duly sworn upon oath, depose and state as follows:
1. My parents are William Hanhardt (hereinafter my father) and Angeline Hanhardt
(hereinafter my mother).
2. I am the fourth of seven children.
3. I am the Official Court Reporter for the Honorable Charles P. Kocoras, having held that
position for the past 27 years. Prior to my appointment with Judge Kocoras, I worked as
a court reporter for the Honorable Judges William J. Bauer and Alfred Y. Kirkland.
4. Mr. William Von Hoene (hereinafter Von Hoene) and Mr. Thomas P. Sullivan
(hereinafter Sullivan) were the attorneys representing my father at the time of his
attempted suicide (October 16, 2001) and his plea of guilty (October 25, 2001).
5. On or about October 12, 2001, I had a discussion with Von Hoene. During that
conversation, I expressed my concern to Von Hoene about my fathers emotional and
psychological state; specifically, that at that time, my father was not thinking clearly and
that, in my opinion, my father needed medical attention before he could appear in court
on his case. I conveyed to Von Hoene that my father was taking a number of prescription
medications at that time. I also attempted to make known to Von Hoene my fathers
feelings of hopelessness and helplessness, and his loss of self-worth. Von Hoene showed
no reaction at all over my concerns about my fathers emotional state. It appeared to me
as if nothing I said about my fathers mental and psychological state, and his acute
medical condition, made any difference at all to Von Hoene.
6. Two weeks after my fathers blind plea of guilty (November 8, 2001), there was a motion
before the Court for my fathers release on bond pending sentencing. The Government,
in its current Motion to Dismiss, states as follows: Joene Hanhardt was afforded apple
(sic) opportunity at that time to inform the Court of any relevant matters. However, upon
being advised by the Court that she, like any other witness, would be placed under oath
and be subject to cross examination, she and Hanhardt decided that she would not address
the Court. (p.14)
I was in court, fully prepared to address the Court and willing to be subjected to crossexamination. However, before I was to proceed, Sullivan, unaware of what I was going
to say, requested and received a brief recess from the Court. During that brief recess,
Sullivan poignantly directed comments to my father; and, in his weakened state,
convinced my father - using words to the effect, though not verbatim: You see what has
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courthouse; you cant put her through this - that I should not address the Court.
My father, obviously distraught, and over my protestations, told me, in no uncertain
terms: If you attempt to speak, I will stop these proceedings.
In deference to my fathers emotional state and their decision, I did not address the Court.
7. On May 20, 2006, my sister, Sara Hanhardt, and I directed a letter to the Regional
Director of the Federal Bureau of Prisons (BOP). It was a request of the BOP that our
father be transferred to a Federal Correctional Institution (FCI) closer to my parents
residence in Deerfield, Illinois. The basis of our request was threefold: (i) my mothers
advanced age and medical condition; (ii) her inability to independently travel to visit my
father at FCI Waseca, Minnesota; and, (iii) my fathers deteriorating medical condition
and his mental health.
In response to our letter, I received a letter dated July 11, 2006, from C. Ziegler. Mr.
Ziegler is a Case Manager at FCI Waseca, the institution where my father is assigned. In
his letter, Mr. Ziegler wrote, Due to the severity of your fathers instant offense, he has a
Public Safety Factor of Greatest Severity Offense and is ineligible for a transfer to a
lesser security facility. In addition, there are no other facilities commensurate with your
fathers security needs which would place him closer to home.
8. The Government, in its current Motion to Dismiss, states as follows: Joene Hanhardts
assertions in the present petition are not supported by an affidavit from her. (p. 14,
footnote 5). I am submitting this affidavit to support my assertions in the present
petition.
Further affiant sayeth not.
____________________________________
Joene Hanhardt
SUBSCRIBED AD SWOR TO before

me this ____ day of November, 2007.
___________________________________
Notary Public

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EASTERN DIVISION

v.
WILLIAM HANHARDT
)
)
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No.
07 CV 2542
00 CR 853-1
GOVERNMENTS SURREPLY TO DEFENDANTS REPLY TO

GOVERNMENTS MOTION TO DISMISS OR TO DENY PETITION

States Attorney for the Northern District of Illinois, in surreply to William Hanhardts reply
to the governments motion to dismiss or, in the alternative, to deny his petition to vacate,
set aside, or correct his conviction and sentence pursuant to 28 U.S.C. 2255, states as
follows:
1.
In his reply to the governments motion to dismiss or, in the alternative,
to deny, his 2255 petition Hanhardt expands his claim for relief beyond the allegations
set forth in his petition. Having alleged in the petition only that William Von Hoene provided
ineffective assistance of counsel, he now asserts that both Von Hoene and Thomas P.
Sullivan were not only ineffective, but that they threatened and coerced him into pleading
guilty knowing that he was incompetent to do so. Reply at 7-9.

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Like his original allegation, none of these new allegations comport with his
sworn statements to the Court on October 25, 2001. Under oath at the guilty plea proceeding,
Hanhardt repeatedly told the Court that he wanted to plead guilty, that he was pleading guilty
because he was in fact guilty of the charges in the indictment, that his lawyers statement of
the factual basis for his plea was a correct statement of what happened and what occurred,
that he was not being coerced or forced or pressured or threatened by anyone into pleading
guilty, that he had had a full, fair, and complete opportunity to discuss all aspects of his case
with his lawyers, that he understood the advice they had given him, that he understood and
agreed with the positions and statements of his lawyers in court, and that he had nothing that
he wanted or needed to address as to his lawyers. Tr. 10/25/01 at 3, 5, 9, 14, 41, 44-45, 4750, 52-55, 57, 58. 1
3.
Now, more than six years after the guilty plea proceedings, Hanhardt asserts
that he should have a hearing to determine whether he was competent to knowingly and
voluntarily enter a plea of guilty and to determine whether he had effective assistance of
competent counsel to do so. That hearing has already been held. It was held on October 25,
2001. Hanhardt was given a full, fair, and complete opportunity to participate in that hearing
and he did so, under oath. He cannot begin that process all over again by now submitting
statements under oath which impeach the prior statements he made under oath at the guilty
plea proceeding. United States v. Stewart, 198 F.3d 984, 985-87 (7 th Cir. 1999).
1
Pursuant to the Courts November 9, 2007, Order, a copy of the October 25, 2001, guilty
plea proceeding transcript is attached.
2

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Hanhardts newly asserted claims of mental incapacity and coercion, as well
as his original and expanded claim of ineffective assistance of counsel are procedurally
barred. Hanhardt did not raise any of these issues prior to sentencing and re-sentencing in
the district court, he did not raise the issues of lack of mental capacity or coercion on direct
appeal, and he has shown neither cause for nor prejudice from these failures. See United
States v. Frady, 456 U.S. 152, 168 (1982). Hanhardt had other counsel to whom he could
have conveyed his allegations after his guilty plea. Counsel in addition to Sullivan and Von
Hoene filed appearances and represented Hanhardt at sentencing in May, 2002, and
Hanhardt was represented by counsel other than Sullivan and Von Hoene on appeal and at
his re-sentencing in May, 2004.2 All of the information now asserted by Hanhardt was
available prior to the initial sentencing and the current affiants were all present in court at the
plea proceedings, the sentencing hearing in 2002, and the re-sentencing hearing in 2004. Nor
can Hanhardt show prejudice; the factual basis for the guilt that he acknowledged was
overwhelmingly demonstrated. Tr. 10/25/01 at 10-14, 16-39; Santiago Proffer. See United
States v. Hanhardt, 424 F. Supp. 2d 1065, 1066-1069 (N.D. Ill. 2005).
Carolyn Gurland and Hanhardts present counsel filed appearances on 4/30/02 and 2/7/02,
respectively, and represented Hanhardt at sentencing. R. 260, 282; Tr. 4/29/02 at 4, 16, 21-35; Tr.
4/30/02 at 262; Tr. 5/1/02 at 613, 671, 677, 684-6, 691-2. Jeffrey Cole represented Hanhardt on
appeal and present counsel and Cole represented Hanhardt at his May, 2004, re-sentencing. R. 407,
423; United States v. Hanhardt, 361 F.3d 382, 385 (7th Cir. 2004).
3

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Hanhardts new contentions that he lacked the mental capacity to knowingly
and voluntarily enter a plea of guilty, that attorneys Von Hoene and Thomas P. Sullivan knew
he lacked the capacity to enter a guilty plea, and that Von Hoene and Sullivan threatened and
coerced him into entering a plea of guilty, all set forth for the first time in his reply to the
governments motion to dismiss his 2255 petition, are procedurally barred on numerous
additional levels and even if they are assumed, arguendo, to be properly before the Court,
they, like his original claim of ineffective assistance of counsel William Von Hoene, are
meritless.
Failure To Assert Claims In 2255 Petition
6.
In his petition, Hanhardts only alleged ground for relief was ineffective
assistance of counsel William Von Hoene for failing to inquire into Hanhardts mental
capacity to plead guilty. While Hanhardt made factual representations regarding his
purported mental state, he did not cite either mental incapacity or coercion as grounds for
relief in his petition.
Issues not raised by a petitioner in his initial 2255 petition,
particularly a petitioner represented by retained counsel, are waived. Jennings v. United

States, 461 F. Supp.2d 818, 833 (S.D. Ill. 2006) (and cases cited therein). The instructions
to the Form Motion in the appendix to 28 U.S.C. 2255 state at 9:
CAUTION: You must include in this motion all the grounds for relief
from the conviction or sentence that you challenge. And you must state
the facts that support each ground. If you fail to set forth all grounds in
this motion, you may be barred from presenting additional grounds at a
later date.

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(Emphasis and bold in the original). 28 U.S.C. 2255 (2006) at 522.
See Zambrana v.
United States, 790 F.Supp. 838, 843 (N.D. Ind. 1992) (and cases cited therein).
Failure To Assert Claims Prior To Sentencing
7.
By failing to raise prior to sentencing the arguments that he lacked the
mental capacity to plead guilty, that his guilty plea was coerced, and that his counsel were
ineffective, Hanhardt has forfeited those arguments. Hanhardt was not sentenced until
May, 2002, more than six months after the entry of his guilty plea. In the interim, two
additional retained counsel, including his present counsel, filed appearances on his behalf.
See Fn.2, supra. Where, as here, a defendant is represented by additional counsel at
sentencing and sentencing occurs long after the entry of a guilty plea, arguments attacking
the validity of the plea raised for the first time in a 2255 petition that could have been raised
in the district court prior to sentencing are forfeited. See United States v. Hugi, 164 F.3d 378,
380 (7 th Cir. 1999).
Failure To Assert Claims Of Mental Incapacity And Coercion On Appeal
8.
A voluntary and intelligent plea of guilty made by an accused person who has
been advised by competent counsel may not be collaterally attacked. Bousley v. United
States, 523 U.S. 614, 621 (1998). Even the voluntariness and intelligence of a guilty plea can
be attacked on collateral review only if first challenged on direct review. Id. Where, as in the
present case, a defendant contests his sentence on appeal, but does not challenge the validity
of his plea, he procedurally defaults the claim. Id. Where a defendant has procedurally

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defaulted by failing to raise a claim on direct appeal, the claim can be raised in a 2255
petition only upon a showing of either just cause and actual prejudice or actual innocence.
Id. at 622.
9.
Hanhardt did not raise the issues of mental capacity and coercion on direct
appeal. Hanhardt makes no showing of cause for his failure to raise these issues on direct
appeal, where he was represented by retained counsel other than Von Hoene and Sullivan,
namely, now Magistrate Judge Jeffrey Cole, who at the time of the trial court and appellate
court litigation of Hanhardts case was a highly experienced and able trial and appellate
litigator. Furthermore, in his 2255 petition and in his reply to the governments motion to
dismiss or deny the petition, Hanhardt makes no claim of actual innocence of the charges
to which he plead guilty. Therefore, Hanhardts claims of mental incapacity and coercion
are procedurally barred for these additional reasons. See also Broadway v. United States, 104
F.3d 901, 903 (7 th Cir. 1997); see also Bontkowski v. United States, 850 F.2d 306, 313 (7 th
Cir. 1988) (non-constitutional errors which could have been raised on appeal but were not,
are barred on collateral review regardless of cause and prejudice). Gray v. United States,
2004 WL 2921858 * 3 (N.D. Ill. 2004).

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Lack Of Legal And Substantive Merit

Mental Incapacity Claim
10.
Assuming, arguendo, that Hanhardts claim of mental incapacity is properly
before this Court, it is meritless. The totality of the circumstances at the guilty plea
proceeding on October 25, 2001, including Hanhardts extensive statements under oath in
response to interrogation by the Court, his demeanor throughout the proceedings, his
intelligence and extensive experience in the criminal justice system, his representation by
experienced and distinguished counsel and their statements on his behalf, his interaction
with the Court and both his own counsel and counsel for the government throughout the
proceedings, and the factual basis set forth by his own counsel with which he agreed, all
conclusively demonstrated that at the time of the change of plea proceeding Hanhardt had
a sufficient present ability to consult with his lawyers with a reasonable degree of rational
understanding, he had a rational as well as factual understanding of the proceedings against
him, and his plea was knowingly and voluntarily made. United States v. Cross, 57 F.3d 588,
591 (7 th Cir. 1995). See Eddmunds v. Peters, 93 F.3d 1307, 1314 (7 th Cir. 1996).
11.
On the issue of his competence to enter a plea of guilty, Hanhardt told the
Court under oath at the change of plea proceeding that he was taking anti-depressant
medication, that he was clear minded, and that he knew what he was doing. Tr. 10/25/01
at 4, 49.
He told the Court under oath that he was not raising any issue with respect to
competency. Id. at 61.

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Having made statements attesting to his competence under oath at
the plea proceedings, the very purpose of which was to determine whether his plea of guilty
was being made knowingly and voluntarily, Hanhardt now attempts to impeach his own
sworn statements at that plea proceeding with additional sworn statements in affidavits from
himself and close family members. Hanhardt is barred from engaging in such maneuvers as
a matter of law. United States v. Stewart, 198 F.3d 984, 985-87 (7 th Cir. 1999).
13.
Courts take the plea process seriously and hold defendants to their
representations. Hugi, 164 F.3d at 381. A guilty plea is not a road-show tryout before the
real contest occurs in the 2255 proceedings. Id. at 382. As the Seventh Circuit reiterated
in Stewart:
Entry of a guilty plea is not some empty ceremony, and statements made to a
federal judge in open court are not trifles that defendants may elect to
disregard. A defendant has no legal entitlement to benefit by contradicting
himself under oath. Thus, when a judge credits the defendants statements in
open court, the game is over.
Stewart at 987.
Coercion Claim
14.
Hanhardt told the Court at the guilty plea proceeding that he was not being
coerced or forced or pressured or threatened by anyone into pleading guilty. Tr. 10/25/01 at
49-50. Assuming, arguendo, that Hanhardts coercion claim is properly before the Court,
it, too, should be dismissed as a matter of law for the reasons set forth in s 10, 12 and 13
above.

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In addition, the statements that Hanhardt attributes to his counsel (Reply at 7)
were not threats or coercion, they were blunt, pragmatic, permissible, and necessary
assessments that a guilty plea was in Hanhardts best interest. See United States v. Messino,
55 F.3d 1241, 1248, 1251-52 (7 th Cir. 1995). Hanhardts new claim that he plead guilty
because he knew that both he and his family members had depleted their resources and
would not be able to afford a trial( Reply at 7) is unsupported by any financial affidavits
from Hanhardt or his many family members and is contradicted by the public record of this
case that shows a vast array of privately retained counsel deployed for years on Hanhardts
behalf, including the more than six years since the entry of the plea.
Alleged Prejudice
16.
In his reply, Hanhardt asserts for the first time the prejudice he claims. He
contends that he was prejudiced by his loss of his right to a conditional plea and by his
inability at sentencing to assist his attorneys defending against the Kashimallak armed
robbery allegation and to obtain credit for acceptance of responsibility. Reply at 13. These
contentions are procedurally barred for the reasons set forth in s 6 and 7 above.
17.
Assuming, arguendo, that his claims of prejudice are properly before the
Court, they are meritless. Hanhardt had no right to a conditional plea, no offer of a
conditional plea had been made by the government, and no conditional plea was acceptable
to the government. Tr. 10/25/01 at 45-48. The defense to the Kashimallak armed robbery
evidence was presented on behalf of both Hanhardt and Basinski by Jeffery Cole, who cross

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examined Kashimallak and the FBI case agent and argued to the Court. Tr. 4/29/02 at 158255; Tr. 4/30/02 at 331-452, 464-73; Tr. 5/1/02 at 531-603. Cole has filed no affidavit and
has never at any time maintained that he was in any manner impeded in his efforts by any
incapacity of Hanhardt. Lastly, Hanhardts lawyers had nothing to do with his failure to
accept responsibility. When given the opportunity to address the Court, rather than accept
responsibility for his conduct, Hanhardt chose instead to hurl a nasty and sarcastic insult at
the Court. Tr. 5/1/02 at 670. And he reiterated it the following day. Tr. 5/2/02 at 725.
Hanhardt has yet to accept responsibility for his conduct. He has been ably represented by
counsel other than Von Hoene and Sullivan for more than six years, but he has never made
a candid and complete statement of the circumstances surrounding the offense of conviction,
including information about the methods used to commit the crime (See United States v.
Larkin, 171 F.3d 556 (7 th Cir. 1999)), and denies responsibility for the Kashimallak armed
robbery, now contending that as to that crime the is actually innocent. 3 Reply at 16.
Hanhardts dismissal of the governments evidence of his involvement in the Kashimallak

armed robbery as rank speculation (Reply at 15) and his strained effort to reargue the evidence
(Reply at 15-16) presents no just cause to revisit the Courts finding at his first sentencing hearing
that Hanhardt was responsible for the Kashimallak armed robbery. Woodruff v. United States, 131
F.3d 1238, 1241 (7th Cir. 1998).
10

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Additional Alleged Grounds For Relief

18.
Hanhardt asks this Court to vacate his sentence, or at least to vacate the finding
that Hanhardt was responsible for the Kashimallak armed robbery, on humanitarian grounds
in light of his advanced age and purported health issues. This Court has no jurisdiction
and no authority to enter such an order. Congress has specifically prohibited federal courts
from modifying a term of imprisonment for such reasons after the sentence has been
imposed. 18 U.S.C. 3582(c). That statute contains limited exceptions, but none of the
exceptions permits the relief Hanhardt seeks. Section 3582 empowers the Court to reduce a
sentence for extraordinary or compelling reasons, but the motion seeking such relief must
come from the Director of the Bureau of Prisons, not the defendant.
18 U.S.C.
3582(c)(1)(A)(I). The Court

upon motion of the Director of the Bureau of Prisons, may reduce the term of
imprisonment ... after considering the factors set forth in [Title 18] section 3553(a)
... if it finds that (I) extraordinary and compelling reasons warrant such a reduction
... .
18 U.S.C. 3582(c)(1)(A)(I). The Director of the Bureau of Prisons has made no motion on
Hanhardts behalf under 3582.
19.
Hanhardt also asks for special consideration because of his service as a police
officer. He attaches several letters of commendation from significant government officials,

including former FBI Director J. Edgar Hoover. Those letters present no legal or factual
11

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basis for the relief Hanhardt seeks.4 Hanhardt is the highest ranking member of the Chicago
Police Department to be convicted of crimes. The public accolades he collected while a
police officer created an image of him far different than the evidentiary reality established
in the criminal prosecution. Had the officials who wrote the letters he cites known the facts
acknowledged by Hanhardt at the plea proceeding and the facts detailed by the government
at the plea proceeding and in its Santiago proffer, those letters would never have been
written.
20.
One issue remains to be addressed. That issue is whether Hanhardts
conviction, sentence, and guilty plea must be vacated if the words he spoke at the guilty plea
proceeding were not a genuine acknowledgment of guilt but, rather, part of a carefully
calculated premeditated maneuver by Hanhardt to avoid conviction a maneuver that began
with his purported suicide attempt, culminated more than six years later in the filing of the
2255 petition, and involved Hanhardts use and manipulation of his doctors, his wife, his
family members, and his lawyers to unwittingly aid his deception.
21.
The goal of such a maneuver would be to avoid conviction altogether by
putting the government to its proof not when the government was fully prepared to proceed
in October, 2001, but years later when the governments ability to assemble the evidence, the
These matters were already raised by Hanhardt and considered by the Court at Hanhardts
sentencing and re-sentencing.
12

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potential witnesses 5 , and its agents and lawyers 6 would have substantially diminished. The
obvious disadvantage of such a maneuver is that Hanhardt has spent more than six years in
prison, but that is a far lesser term of imprisonment than he would have faced following
conviction by a jury in 2001, and possibly a shrewdly calculated price to pay for the chance
to ultimately avoid conviction altogether.
22.
Has Hanhardt planned and executed such a maneuver over the past six
years? We may never know. But virtually everything asserted in support of his purported
suicide attempt and his present claim of mental incapacity depends on conclusions drawn by
himself and others from his own statements and actions.7 Were those statements and actions
staged to deceive? Hanhardt has the intelligence, cunning, background in law enforcement,8
Joseph Basinski died on April 30, 2007, after a long illness. Hanhardt filed his 2255
petition on May 7, 2007. 2007 WLNR 8195581; R. 446.
6
Assistant United States Attorney John Scully, who had been assigned to the investigation
and prosecution from its inception, retired after 38 years of federal civilian and military service in
September, 2007.
7
And key claims made by Hanhardt could not be verified. Hanhardt claimed that he took
twenty oxycontin pills at around 2:00 a.m. in an attempt to harm himself on October 16, 2001, the
day he was rushed to the hospital. Tr. 10/16/01 at 10. The defense itself advised the Court that the
doctor who prescribed the medication for Hanhardt stated that that amount of that drug would be
fatal. Id. at 11. As few as six pills could conceivably be fatal to someone in Hanhardts condition,
according to the prescribing doctor. Id. Whatever Hanhardt did to cause him to be found
unresponsive by his wife that morning, he did not take twenty oxycontin pills at 2:00 a.m. as he
claimed.
8
See United States v. Hanhardt, 424 F. Supp. 2d 1065, 1066 (N.D. Ill. 2006).
13

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and knowledge of both the state 9 and federal10 criminal justice systems to conceive and
execute such a scheme.
23.
The issue that must be resolved is whether his guilty plea, and the conviction
and sentence that resulted from it, should stand if we assume, arguendo, that he intentionally
engaged in such a maneuver. The law is well settled that it should. United States v. Hugi, 164
F.3d 378, 382 (7 th Cir. 1999); United States v. Elison, 835 F.2d 687, 692 (7 th Cir. 1987).
Hanhardts subjective intent in entering the guilty plea is irrelevant to the issue of whether
the plea was entered knowingly and voluntarily. Elison, supra. What is relevant is what
Hanhardt stated under oath at the plea proceeding. Id. Hanhardt told the Court that he was
clear-minded and competent, that he understood the nature of the charges and the
proceedings against him, and that he was pleading guilty because he was in fact guilty of the
crimes charged in the indictment. Those voluntary, sworn responses control his fate. Elison
at 693. By pleading guilty Hanhardt avoided the full weight of the evidence that would have
been brought to bear against him in 2001. If he intentionally obtained the benefits of pleading
guilty in 2001 only to set the stage for the real contest he intended to raise years later over
the issues of his mental capacity and the voluntariness of his plea, he engaged in conduct the
criminal justice system does not tolerate and for which it will accord him no benefit. Id.
Id.
10
See Tr. 5/1/02 at 670; United States v. Hanahan, 442 F.2d 649, 651 (7th Cir. 1971).
14

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Where, as here, the record conclusively demonstrates that a petitioner is
entitled to no relief, a 2255 petition should be dismissed. Almonacid v. United States, 476
F.3d 518, 521 (7 th Cir. 2007); Barker v. United States, 7 F.3d 629, 633 n. 3 (7 th Cir. 1993).
See Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District
Courts.
Conclusion
For the reasons stated above and in its initial filing, the government asks that
William Hanhardts petition to vacate, set aside, or correct his conviction and sentence
pursuant to 28 U.S.C. 2255 be dismissed or, in the alternative, denied.
By: s/ John F. Podliska

JOHN F. PODLISKA
219 South Dearborn Street - 5 th Fl.
(312) 353-2815
15

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CERTIFICATE OF SERVICE
The undersigned Assistant United States Attorney hereby certifies that the following
document:
GOVERNMENTS SURREPLY TO DEFENDANTS REPLY TO
GOVERNMENTS MOTION TO DISMISS OR TO DENY PETITION
was served on December 10, 2007, in accordance with F ED. R. C IV. P. 5, LR5.5, and the
General Order on Electronic Case Filing pursuant to the district courts Electronic Case
Filing (ECF) system as to ECF filers.
By: s/ John F. Podliska
JOHN F. PODLISKA
(312) 353-2815
16

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FOR THE Northern District of Illinois CM/ECF LIVE, Ver 3.2.2
Eastern Division
United States of America

Plaintiff,
v.
Case No.: 1:07cv02542

Honorable Charles R. Norgle Sr.
William Hanhardt
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Wednesday, December 17, 2008:
MINUTE entry before the Honorable Charles R. Norgle, Sr: Status hearing set for
12/19/2008 is stricken. Counsel shall file a written status report on or before
1/21/2009.Telephoned/mailed notice(ewf, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.

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EASTERN DIVISION

v.
WILLIAM HANHARDT
)
)
)
)
)
No.
07 CV 2542
00 CR 853-1
GOVERNMENTS STATUS REPORT

States Attorney for the Northern District of Illinois, pursuant to the Courts Order of
December 17, 2008, submits the following status report:
1.
Before the Court is petitioner William Hanhardts motion to vacate, set aside,
or correct his conviction and sentence (Document 1); the governments motion to dismiss the
petition or, in the alternative, to deny it (Document 11);
Hanhardts reply to the
governments motion to dismiss (Document 18); and the governments sur-reply (Document
22). Also before the Court are transcripts of Hanhardts guilty plea proceeding on October
25, 2001, sentencing hearing held May 2, 2002, and re-sentencing hearing held May 25,
2004. The government ordered the transcript of the re-sentencing hearing on December 26,
2007, pursuant to the Courts order of December 12, 2007, and the government provided
the transcript to the Court when the government received it. See Tr. 5/25/04 at 27.

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2.
Filed 01/21/2009
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The governments position is that William Hanhardts petition to vacate, set
aside, or correct his conviction and sentence pursuant to 28 U.S.C. 2255 should be
dismissed or, in the alternative, denied as a matter a law without a hearing. The basis for the
governments position is set out in detail in the governments motion to dismiss or deny the
petition (27 pages) and in the governments sur-reply (15 pages). No evidentiary hearing
is warranted because, as a matter of law, Hanhardts allegations cannot be accepted as true
because they are contradicted by the transcripts of the guilty plea and sentencing proceedings,
including Hanhardts own statements under oath. See Govts Motion to Dismiss at 13-15;
Govts Sur-reply at 2, 7-9.
3.
Furthermore, an evidentiary hearing is procedurally barred for additional
reasons set forth in the governments filings. Govts Sur-reply at 2-6. For example, where,
as here, a defendant is represented by additional counsel at sentencing and sentencing occurs
long after the entry of a guilty plea, arguments attacking the validity of the plea raised for
the first time in a 2255 petition that could have been raised in the district court prior to
sentencing are forfeited. See United States v. Hugi, 164 F.3d 378, 380 (7 th Cir. 1999).
Govts Sur-reply at 5. Hanhardts initial sentencing hearing (May 2, 2002) was held more
than six months after his plea (October 25, 2001) and the re-sentencing hearing (May 25,
2004) was held more than 2 years after the plea proceeding. At both sentencing hearings
Hanhardt was represented by counsel other than those whose conduct and effectiveness he
now challenges.

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4.
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In addition, Hanhardts request for alternative relief is now moot. In his
petition Hanhardt asks, as alternative relief should his petition to vacate his conviction and
sentence fail, that the Court modify his existing sentence by vacating the finding (Tr. 5/1/02
at 667) that Hanhardt was responsible for the August 23, 1995, armed robbery of jewelry
salesman Esagh Kashimallak. Hanhardt asks that this be done so that he would be eligible
for transfer to the Bureau of Prisons Camp at Oxford, Wisconsin.1 Since the petition was
filed, the Bureau of Prisons has stopped housing prisoners more than 70 years old at the
Oxford Camp; Hanhardt, who is 80, exceeds the age requirement to qualify for transfer to
Oxford.
Therefore,
Hanhardt is ineligible for transfer to the Oxford Camp and his
alternative relief request is moot.

5.
If the Court determines that Hanhardts petition should not be denied as a
matter of law, the government requests that the Court hold an evidentiary hearing to
determine the validity of Hanhardts claims. The government asks that the Court authorize,
as to subpoenas for witnesses to produce records, the early return of hearing subpoenas
under F. R. Crim. P. 17(c) to facilitate preparation for the hearing.
Bureau of Prisons regulations prohibit persons whose convictions involved violence from
being assigned to a prison camp. According to the BOPs website, Hanhardt is presently confined
at the minimum security prison at Englewood, Colorado.
3

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By: /s/ John F. Podliska

JOHN F. PODLISKA
(312) 353-2815
By: /s/ Amarjeet Bhachu
AMARJEET BHACHU
(312) 469-6212

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FOR THE Northern District of Illinois CM/ECF LIVE, Ver 3.2.2
Eastern Division
United States of America

Plaintiff,
v.
Case No.: 1:07cv02542

Honorable Charles R. Norgle Sr.
William Hanhardt
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Wednesday, January 21, 2009:
MINUTE entry before the Honorable Charles R. Norgle, Sr: Defendant's time to
file a written status report is extended to and until 1/28/2009. (ewf, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.

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Filed 01/28/2009
Filed: 05/27/2009
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EASTERN DIVISION

Plaintiff,
v.
WILLIAM HANHARDT,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 07 CV 2542
00 CR 853-1
The Honorable
Charles R. Norgle, Sr.
Judge Presiding
DEFENDANT WILLIAM HANHARDTS STATUS REPORT

Now comes the Defendant, WILLIAM HANHARDT, by and through his attorney
Jeffrey B. Steinback, pursuant to this Courts Order entered on December 17, 2008,
submits the following status report:
1.
Before this Court is Mr. Hanhardts Motion to Vacate, Set Aside or
Correct his Sentence pursuant to 28 U.S.C. 2255; the Governments Motion to Dismiss
Petitioners 2255 Motion; Mr. Hanhardts Reply to the Governments Motion to
Dismiss ; and the Governments Surreply.
2.
It is the defendants position that an evidentiary hearing is warranted to
determine whether Mr. Hanhardts constitutional right to effective assistance of counsel

was violated when his attorneys, Mr. Sullivan and Mr. Von Hoene, failed to file any
motion, either seeking a competency determination or a psychiatrist evaluation to
determine their clients fitness to enter a blind plea on October 25, 2001. In a 2255
proceeding a court is required to hold an evidentiary hearing [u]nless the motion and the

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records and files of the case conclusively show that the prisoner is entitled to no relief
28 U.S.C. 2255. In the instant case, the medical records concerning Mr.
Hanhardts condition, including his suicide attempt, the events leading up to the entry of
the blind plea, and the information contained in the sworn affidavits submitted to this
Court, clearly show that there was information known to Mr. Hanhardts attorneys which
raised a bona fide doubt as to Mr. Hanhardts competency to enter a plea at that time. 1
Had Mr. Sullivan and Mr. Van Hoene made a request for a competency hearing there is
more than a reasonable probability, based on the circumstances surrounding Mr.
Hanhardts mental health, that this Court would have ordered a competency hearing. 2
3.
Mr. Hanhardts request for alternative relief, specifically that the Court
modify his existing sentence by vacating the finding that Mr. Hanhardt was responsible
for the August 23, 1995, armed robbery of jewelry salesman Esagh Kashimallak which
would make Mr. Hanhardt eligible for a transfer to a prison camp is not moot. While it is
true, as the government states, that since this petition was filed, the Bureau of Prisons
Camp in Oxford, Wisconsin no longer houses prisoners more than 70 years old, Mr.
Hanhardt, who is 80 years old, is still eligible for a transfer to a different Bureau of
Prisons Camp or at least a facility that is somewhere at least in the geographical vicinity
of his home.
Significantly, Mr. Hanhardt is no longer serving his time at the Bureau of Prisons
Facility located in Waseca, Minnesota but rather has been transferred, not to a medical
The basis for Mr. Hanhardts position is set out in detail in Mr. Hanhardts 2255 Motion (Document 1)
and in Mr. Hanhardts Reply to the governments motion to dismiss (Document 18).
2
Mr. Hanhardts medical condition and mental state at the time he entered a blind plea is outlined in detail
in his 2255 Motion (Document 1, his Reply (Document 18) and the Exhibits attached thereto.

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facility despite his declining health, but to FCI Englewood, a low security facility located
in Littleton, Colorado, a distance of more than 1000 miles away from his home.
4.
It is Mr. Hanhardts position that his request for leniency should not be
denied based merely upon testimony elicited by a convicted felon, turned government
informant during the Family Secrets trial. For the reasons stated in Mr. Hanhardts Reply
to the Governments Motion to Dismiss, the allegation that sometime in the 1960s Mr.
Hanhardt took $1000 per month and a new car every two years in bribes, should not be
considered by this Court in determining whether Mr. Hanhardt is entitled to relief. 3
(Gov. Motion, page 26).
5.
As Mr. Hanhardt continues to serve his time, his health continues to
deteriorate. Mr. Hanhardt has been diagnosed with testicular cancer, which has resulted
in three surgical procedures and the removal of both testicles and spermatic cord,
congestive heart failure, spinal stenosis, and borderline emphysema. More recently, in
2005, Mr. Hanhardt informed this Court that his health has continued to decline. He has
lost all of his bottom teeth on one side of his mouth and all of his top teeth on the
opposite side of his mouth, creating significant problems with his ability to eat. He has
also been diagnosed as suffering from an ulcer. Mr. Hanhardts medical conditions are
not only serious, but also extraordinarily painful; he suffers daily oftentimes finding it
impossible to simply stand up. This effort represents an important, and we feel
meritorious, last opportunity to seek some relief.
There are several reasons that this allegation should not be considered by the court: (1) this allegation was
never suggested at any point in the prosecution of Mr. Hanhardt; (2) the Government has failed to offer any
corroborative evidence to support this allegation other than guilt by association; (3) Mr. Hanhardt was
never given notice of this witness, the opportunity to confront or cross-examine the witness who is a
convicted felon, turned government informant; and (4) the allegation is a hearsay summary quoted from a
local newspaper article. (Reply, page 17).

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Respectfully Submitted,
/s/Jeffrey B. Steinback
Jeffrey B. Steinback
JEFFREY B. STEINBACK
53 West Jackson Blvd
Suite 1420
Chicago, IL 60604
(847) 624-9600

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United States District Court for the Northern District of Illinois

Revised 03/11/2008
Case Number: 07C2542
Assigned/Issued By: NF
Judge Name:
Designated Magistrate Judge:
FEE INFORMATION
Amount Due:
$350.00
$39.00
$5.00
IFP
No Fee
Other _____________
$455.00
Number of Service Copies ___________
Date: ______________________
(For use by Fiscal Department Only)
Amount Paid: 455.00

_______________
Receipt #: 4624021414
__________________
5/7/9
Date Payment Recd: _____________
NF
Fiscal Clerk: ________________
ISSUANCES
Summons
Alias Summons
Third Party Summons
Lis Pendens
Non Wage Garnishment Summons
Abstract of Judgment
___________________________
___________________________
Wage-Deduction Garnishment Summons
(Victim, Against and $ Amount)
Citation to Discover Assets

Writ _______________________
(Type of Writ)
Other
_______________________
_______________________
(Type of issuance)
______Original and __________ copies on ________________ as to ____________________________

(Date)
____________________________________________________________________________________
____________________________________________________________________________________

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Case: 09-2248

United States District Court

Date Filed: 05/07/2007

Page Docket Text

39 CIVIL Cover Sheet. (mjc, ) (Entered: 05/08/2007)

42 ORDER Signed by Judge Charles R. Norgle Sr. on 6/13/2007.(mjc, ) (Entered:

44 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 7/12/2007.(mjc, )

46 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 8/10/2007.(mjc, )

47 MOTION by Plaintiff United States of America to dismiss Petitioner William

4 MOTION to Vacate, Set Aside or Correct Sentence (2255)and 1 copy filed by

79 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 9/24/2007.(mjc, )

81 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 10/18/2007.(mjc, )

83 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 10/29/2007.(mjc, )

84 REPLY by Defendant William Hanhardt Reply to Government's Motion to

130 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 11/30/2007.(mjc, )

131 SURREPLY by Plaintiff United States of America to reply, 18 Government's

219 RESPONSE by Plaintiff United States of America to text entry,, 24 Government's

224 RESPONSE by Defendant William Hanhardt Defendant's Status Report

229 Opinion and Order Signed by the Honorable Charles R. Norgle, Sr on

260 APPLICATION for a Certificate of Appealability construed as NOTICE of

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