Documente Academic
Documente Profesional
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No. 18-1969
vs.
FRANKLIN FENNELL,
Defendant-Appellant.
REPLY BRIEF OF
DEFENDANT-APPELLANT, FRANKLIN FENNELL
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-
governmental party or amicus curiae, or a private attorney representing a government party, must furnish
a disclosure statement stating the following information in compliance with Circuit Rule 26.1 and Fed. R.
App. P. 26.1
The Court prefers that the disclosure statement be filed immediately following docketing; but, the
disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response,
petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended
statement to reflect any material changes in the required information. The text of the statement must also
be included in front of the table of contents of the party’s main brief. Counsel is required to complete
the entire statement and to use N/A for any information that is not applicable if this form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you
must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing
item #3):
Franklin Fennell
(2) The names of all law firms whose partners or associates have appeared for the party in the case
(including proceedings in the district court or before an administrative agency) or are expected to
appear for the party in this court:
Thomas W. Patton and Daniel J. Hillis of the Federal Public Defender’s Office for the Central
District of Illinois; and Charles C. Hayes.
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TABLE OF CONTENTS
PAGE
ARGUMENT ..................................................................................................................... 2
CONCLUSION ................................................................................................................ 13
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TABLE OF AUTHORITIES
PAGE
Cases
Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437 (7th Cir. 1994) (en banc) .... 3
Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992) ................................................ 8
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) ............................................. 10
Rubin v. United States, 449 U.S. 424, 66 L.Ed.2d 633 (1981) ......................................... 8
United States v. Bartlett, 567 F.3d 901 (7th Cir. 2009) ............................................ 2, 3, 4
United States v. Hassebrock, 663 F.3d 906 (7th Cir. 2011) .............................................. 7
United States v. Menza, 137 F.3d 533 (7th Cir. 1998) ..................................................... 9
United States v. Minneman, 143 F.3d 274 (7th Cir. 1998) .......................................... 7, 8
United States v. Rhodes, 330 F.3d 949 (7th Cir. 2003) ..................................................... 4
United States v. Seignious, 757 F.3d 155 (4th Cir. 2014)..................................... 3, 10, 11
Statutes
18 U.S.C. § 3663A .......................................................................................................... 3, 9
18 U.S.C. § 3664 ......................................................................................................... 11, 12
18 U.S.C. § 3664(a) ................................................................................................... passim
18 U.S.C. § 3664(a)-(d) ................................................................................................ 3, 11
Other Authorities
Fed. R. Crim. P. 51(a) ........................................................................................................ 2
U.S. Const., amend. V..................................................................................................... 12
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I. Did the district court err by ordering restitution based on Mr. Fennell’s
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ARGUMENT
lodged no objection below to the district court’s compliance with procedures for
Circuit case to support its assertion. Id. Perhaps that’s because the Government
can’t. The Seventh Circuit does not require a defendant to take exception to a
orders of the court are unnecessary.”); see also United States v. Bartlett, 567 F.3d
901, 910 (7th Cir. 2009) (“[A] litigant [need not] complain about a judicial choice
incorrectly said she was imposing restitution based on intended loss. Mr. Fennell
did not have to take exception to the judge’s misstatement or her failure to
F.3d at 910. Once the judge erred by imposing a restitution for intended loss and
relying on Government Exhibit 37-2 rather than a PSR or some other report that
satisfied 18 U.S.C. § 3664(a), Mr. Fennel did not have to do anything else as a
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States v. Seignious, 757 F.3d 155, 160 (4th Cir. 2014), it’s a curious case to cite. In
Seignous, a district court conducted five evidentiary hearings over the course of
two months before determining the restitution amount. Id. at 157. The defendant
rather, the Fourth Circuit raised the issue sua sponte after reviewing defense
counsel’s Anders brief and decide it under a plain error standard because the
defendant never objected during any of the five evidentiary hearings. Id. at 160.
is not controlling. See Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 443
(7th Cir. 1994) (en banc) (“[W]hile we carefully consider the opinions of our sister
circuits, we certainly do not defer to them.”), aff'd on other grounds, 516 U.S. 152,
(1996). Moreover, the wildly different facts in Seignious make it inapposite and
Also, the Government faults Mr. Fennell for having not “chimed in” to
alert the judge of any error so that the judge could have “cleared up any
confusion”. (Gov’t Br. at 12). Blaming Mr. Fennell is neither warranted nor
ruling. Bartlett, 567 F.3d at 910. A judge can require a defendant to pay restitution
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for actual loss, not intended loss. See United States v. Rhodes, 330 F.3d 949, 953 (7th
Cir. 2003) (the MVRA “implicitly requires that the restitution award be based on
that the judge incorrectly ordered Mr. Fennell to pay $110,600 in restitution for
the “intended loss”. (App. 9). Mr. Fennell was not required to take exception.
own house. The U.S. Attorney’s Office had a highly-trained prosecutor at the
sentencing hearing. If the judge misspoke by saying “intended loss”, why didn’t
should ensure that its lawyers are attentive and doing what is necessary to
B. When ordering the $110,600 restitution payment, the judge did not
comply 18 U.S.C. § 3664(a)’s requirement that a PSR “shall” include
information sufficient for a district court to fashion a restitution order
The Government says that Mr. Fennell’s claim that the judge imposed
restitution for intended loss “fails on the facts”. (Gov’t Br. at 13). The first
problem for the Government is that the judge incontrovertibly said the $110,600
restitution order was based on “intended loss”. (App. 9). Indeed, the
Government acknowledges the judge said intended loss. (Gov’t Br. at 14).
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Unable to get around that fact, the Government tries to explain away the
tongue”. (Gov’t Br. at 14). That tact should work no better than if Mr. Fennell
were to claim the jury foreperson simply misspoke when saying “guilty” rather
than “not guilty”. Or suppose Mr. Fennel claimed the judge meant to say 12
months’ imprisonment rather than the 24 months he’s serving. That claim should
go nowhere when the transcript clearly shows what the judge said. Thus, the
The next problem for the Government is that the entirety of its argument
For orders of restitution under this title, the court shall order the
probation officer to obtain and include in its presentence report, or
in a separate report, as the court may direct, information sufficient
for the court to exercise its discretion in fashioning a restitution
order. The report shall include, to the extent practicable, a complete
accounting of the losses to each victim, any restitution owed
pursuant to a plea agreement, and information relating to the
economic circumstances of each defendant.
Id.
jury trial, the Government strikes a sour note when it tries use the
valid restitution order. (Gov’t Br. at 15). The Government may wish
Even in the highly unlikely event a sentencing judge could make a down-
violates § 3664(a) and cannot be a valid exercise of discretion. And while the
loss amounts and a detailed forensic analysis of those losses”, the Government
fails to identify where the PSR did so. (Gov’t Br. at 15). At best, the Government
has an overly generous view of the PSR’s contents since the PSR for the most part
contains little information for the $110,600 loss figure. (PSR at ¶¶ 22, 84) (stating
included in the PSR (or a separate report) for her to exercise her restitution
discretion. It wasn’t something the judge could validly leave out given that
Congress says the information “shall” be included. Id. As for what information
the PSR did contain, it only had passing references to a $110,600 restitution
1 Really, the Government’s brief proves too much. The presentation of the evidence
covers almost 100 transcript pages and recites dozens of transactions. (Gov’t Br. at 15,
citing R. 145, a 3-98). That presentation occurred on December 13, 2017, and the
sentencing occurred on April 19, 2018. (R.145 & 153). Who could possibly remember all
that the Government credits the judge here with remembering?
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amount. (PSR at ¶¶ 22, 84). That falls well short of the “complete accounting” §
3664(a) requires.
Next, the Government takes issue with the statement in Mr. Fennell’s
opening brief where he said this Court’s view is that district courts should
Br. at 11, citing United States v. Minneman, 143 F.3d 274, 284 (7th Cir. 1998). The
Government makes much of how the brief misquotes Minneman. But the quote is
Hassebrock, 663 F.3d 906, 925 (7th Cir. 2011) (citing Minneman, 143 F.3d at 285), a
case Mr. Fennell discusses but the Government chooses not to. (Op. Br. at 9).
mistakenly thinks Mr. Fennel is arguing that Minneman “dictate[s] specific steps
district courts must always take in determining loss. (Gov’t Br. at 17). While Mr.
Fennell has cited Minneman, his argument is primarily based on § 3664(a)’s plain
text. (Op. Br. at 12, citing Minneman, 143 F.3d at 284; § 3664(a)). The Supreme
Court has repeatedly said “that courts must presume that a legislature says in a
statute what it means and means in a statute what it says there. . . .When the
words of a statute are unambiguous, then, this first canon is also the last: ‘judicial
inquiry is complete.’” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54
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(1992) (internal citations omitted, quoting Rubin v. United States, 449 U.S. 424, 430,
101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981)). And § 3664(a) states that a district the
court “shall order the probation officer to obtain and include in its presentence
fashioning a restitution order.” Moreover, the PSR “shall include, to the extent
“[t]he real review standard is not about what probation prepares but whether the
determination”. (Gov’t Br. at 17) (emphasis added). Even if one could indulge the
Government’s attempt to escape from the controlling statutory text and go with a
‘spirit of the law’ initiative, it would be to no avail. That’s because the PSR has
(PSR ¶¶ 14-22). The PSR’s lack of detail, its lack of documentary evidence, its
lack of testimonial support are all problems that require remand. See Minneman,
143 F.3d at 285 (“[I]f a district court does not provide detailed findings, it runs
the risk that [the appellate court] may remand a restitution award based on
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Another oddity in the Government’s brief is its assertion that Mr. Fennell
“seems to see probation’s job as separate from the district court’s” under §
3664(a)’s requirement that probation provide an accounting. (Gov’t Br. at 18). But
Mr. Fennell sees the PSR for what § 3664(a) says it must be whenever restitution
its discretion in fashioning a restitution order”. Id. The Government cannot show
information exists via “the presentence report and the entire record of the trial,
including a detailed analysis summarized in Exhibit 37-2.” (Gov’t Br. at 18). The
argument would be compelling if § 3664(a) said judges could rely on the entire
trial record. Because the statute doesn’t, the Government’s argument fails.
As for the claimed “detailed analysis” captured in Exhibit 37-2 (Gov’t Br.
that summarizes evidence, like any testimony about it, is inadequate to establish
actual loss under § 3664(a). Adequate proof for purposes of § 3664(a) would be,
for instance, record evidence of cancelled checks totaling $110,600 and proof that
a probation officer; it’s not a document that a party drafts and tenders at
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remand here.
C. Mr. Fennell’s case warrants relief even under plain error review
The final part of the Government’s brief again concerns the Fourth
Circuit’s Seignious opinion and urges denial of relief based on an alleged lack of
harm. (Gov’t Br. at 19). There are problems with the Government’s analysis.
For relief under the plain error standard, a defendant must show: (1) an
error, (2) that is plain, (3) that affected his substantial rights, and (4) that the error
(citations omitted).
erroneous because the PSR she relied on did not contain “information sufficient
for the court to exercise its discretion in fashioning a restitution order”. See §
3664(a). Despite the Government’s claim that “the district court more than met
requirements. That means the determination was an error that was plain.
As for the third factor, the Government contends: “we also know what any
detailed analysis of actual loss would reveal here because the record already
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contains a painstaking analysis of that figure: $110,600”. 2 (Gov’t Br. at 19, citing
Seignious, 757 F.3d at 162 (“[t]he record leaves no doubt that the district court
That contention is little more than the Government saying, “trust us, we did the
based on evidence set forth in a PSR or other report for all to see. There’s good
sense in that. It ensures a defendant has notice of what amount must be paid and
how it was calculated. It also ensures that this Court has a single source to look
to for the restitution determination and isn’t made to sift through trial transcripts
and other materials the district court might never have relied on. At bottom, Mr.
Fennell has a substantial right under § 3664 to have the judge comply with the
2 For whom was the analysis “painstaking”? Maybe it was for the Government or the
Government witness who created the spreadsheet. The judge tasked with the restitution
determination undertook no independent evaluation; she simply accepted the
spreadsheet the instant the Government offered it at sentencing. (App. 9; 35).
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forced to pay. See U.S. Const., amend. V. The violation of his statutory and
constitutional protections more than satisfy the third plain error factor.
undo the protections and requirements § 3664 by asking the Court to look to
materials beyond the statute’s ambit. And it cannot act as if Mr. Fennell must
offer an alternative loss amount to establish that the restitution process was
Government’s claimed loss amount. Such is the case here. A district court may
desire speed and efficiency for sentencing, but a defendant and the public are
nevertheless entitled to all the protections that guarantee a fair process that
guard against government overreach and foster the perception that sentencings
are not pro forma events. The defects in this case are sufficient to satisfy the fourth
plain error factor. Consequently, this Court should exercise its discretion and
grant relief.
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CONCLUSION
Respectfully submitted,
THOMAS W. PATTON
Federal Public Defender
s/ Daniel J. Hillis
DANIEL J. HILLIS
Assistant Federal Public Defender
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The undersigned certifies that this brief complies with the volume
32 in that it contains 2,711 words and 233 lines of text as shown by Microsoft
s/ Daniel J. Hillis
DANIEL J. HILLIS
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No. 18-1969
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
TO: Mr. Gino Agnello, Clerk, United States Court of Appeals, 219 South
Dearborn Street, Chicago, Illinois 60604
Mr. Franklin Fennell, Reg. No. 51079-424, USP Marion, 4500 Prison Road,
Marion, IL 62959
Mr. Bob Wood, U.S. Attorney’s Office, 10 W. Market Street, Suite 2100,
Indianapolis, Indiana 46204
attorney electronically filed the foregoing with the Clerk of Court for the United
States Court of Appeals for the Seventh Circuit by using the CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the
CM/ECF system. I further certify that some of the participants in the case are not
Case: 18-1969 Document: 27 Filed: 01/16/2019 Pages: 20
CM/ECF users. I have mailed the foregoing documents by First Class Mail,
s/ Daniel J. Hillis
DANIEL J. HILLIS
Assistant Federal Public Defender
Office of the Federal Public Defender
600 E. Adams Street, 3rd Floor
Springfield, Illinois 62701
Phone: (217) 492-5070