Tezak, Robert J. v. United States ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2854
ROBERT J. TEZAK,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 7936--Wayne R. Andersen, Judge.
ARGUED March 1, 2001--DECIDED JULY 11, 2001
Before HARLINGTON WOOD, JR., MANION, and
DIANE P. WOOD, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. On
October 25, 1993, Robert Tezak pled
guilty to charges of arson and
obstruction of justice in the District
Court for the Northern District of
Illinois. Tezak appeals the district
court’s denial of his amended petition
for a writ of habeas corpus pursuant to
28 U.S.C. sec. 2255, which sought to have
his plea vacated on the ground that he
received ineffective assistance of
counsel in the entry of his plea
agreement and in submitting an appeal.
Tezak’s motion to recuse the district
court judge for personal bias was also
denied. We have jurisdiction under 28
U.S.C. sec.sec. 1291 and 2253, and we
affirm.
BACKGROUND
Tezak is a multi-millionaire/1 who was
a prominent member of the Republican
party in Will County/2 and has served
as a delegate to the Republican National
Convention. By age twenty-one, he was a
precinct chairman. In 1976, when he was
twenty-eight, he was elected to serve as
coroner of Will County and was re-elected
through 1988. Prior to his election as
coroner, he served as deputy coroner for
nine years.
On August 6, 1987, a fire occurred at
the Galaxy Bowl, a bowling alley in
Cresthill, Illinois. Although the
building was not totally destroyed,
Colonial Penn Insurance paid out
$50,610.94 in clean-up costs. A grand
jury investigation was begun. On December
4, 1987 in Joliet, Illinois, a three-
story building known as the PIC building,
which housed the offices of the Will
County Private Industry Council and the
Will County Center for Community Concern,
was destroyed by fire. As a result of the
fire, Colonial Penn Insurance paid
$132,940.15 in tenants’ insurance and
Standard Mutual Insurance reported a loss
of $320,800.71 on the building. Following
the fire, a joint federal and local arson
investigation began.
After a lengthy investigation, a federal
grand jury indicted six individuals, one
of whom was Tezak, with conspiracy and
arson in both fires. In December 1992,
Tezak was charged in district court on
four counts: (1) conspiracy to destroy
the Galaxy Bowl by fire and to defraud
Colonial Penn Insurance, (2) damage to
real and personal property of Galaxy Bowl
by fire,/3 (3) conspiracy to destroy
the PIC building by fire, and (4)
destruction of the PIC building and its
contents by fire. Tezak pleaded not
guilty on all counts.
On September 3, 1993, while Tezak was
released on bond, the government moved to
have his release revoked on the ground
that he had violated certain conditions
of his release, primarily that Tezak was
alleged to have obstructed justice by
intimidating a witness under 18 U.S.C.
sec. 1512. In a statement made to
government agents, Nikki Leber, Tezak’s
ex-daughter-in-law, stated that Mark
Tezak, Tezak’s son, met with her in
August 1993 to give her a message from
his father, telling her not to testify
for the government in the case against
Tezak because if she did, his father
"would have her brains blown out." Leber
stated that she met Tezak when she was
sixteen and that he began a sexual
relationship with her while she was still
a minor. She stated that she continued to
have a sexual relationship with Tezak
while she was married to his son. She
also stated that Tezak provided both her
and his son cocaine on a regular basis
and that he had continued to provide her
with cocaine up to the present time. In
addition, both Leber and Mark Tezak
testified that Tezak continued to use
drugs after he was indicted./4 The
district court revoked Tezak’s bond on
September 3, and, after reviewing the
evidence at a hearing to reinstate
Tezak’s bond on September 16, denied
reinstatement. In a second motion-to-
reinstate-bond hearing on September 29,
1993, the district court again denied
reinstatement after the government
presented evidence showing that Tezak had
purchased twelve guns in July 1993 (while
under indictment) and that he lied on the
purchase forms indicating that he was not
under any indictment or information and
then signed a statement swearing his
answers were "true and correct."
On October 22, 1993, a superseding
information was issued which included the
previous four counts but added a fifth
count of obstruction of justice for
threatening a potential witness. Tezak
signed a plea agreement that same day. On
October 25, 1993, in court, Tezak pled
guilty to counts one, two, and five
pursuant to the plea agreement and
admitted complicity in the PIC fire,
although the government had agreed to
dismiss counts three and four.
After three separate and lengthy
sentencing hearings, judgment was entered
on August 10, 1994, sentencing Tezak to
five years probation on count one, nine
years imprisonment on count two, and
forty-six months imprisonment on count
five, all sentences to run consecutively.
He was also ordered to pay $659,106 in
fines and $538,697.30 in restitution. A
motion to extend the time for filing a
notice of appeal was entered but was
denied due to untimeliness. Tezak then
filed a motion pursuant to Fed.R.Crim.P.
35 to reduce his sentence, which was also
denied.
Before the district court had made a
determination on the Rule 35 motion,
Tezak was indicted by the State’s
Attorney of Will County on five counts of
arson relating to the PIC fire. Tezak’s
attempt to dismiss the state indictment
on double jeopardy grounds was denied by
the state court, which holding was then
upheld by the state appellate court.
After a jury trial, Tezak was convicted
on all five counts of arson based solely
on the transcript of his plea agreement,
which contained the admissions about the
PIC fire. Tezak was sentenced to three
years state incarceration consecutive to
his federal sentence. Tezak appealed the
state conviction and sentence on several
grounds, one of which was that the
conviction violated the double jeopardy
clause of the Constitution and 720 Ill.
Comp. Stat. 5/3-4. The state appellate
court affirmed the conviction and
sentence.
Tezak then filed a sec. 2255 petition on
December 3, 1996. Five months after
filing the petition, Tezak moved to
recuse Judge Andersen, the district court
judge, on the alleged ground of personal
bias. The district court denied the recu
sal motion. In his amended petition,
Tezak claims that (1) his Sixth Amendment
right to effective assistance of counsel
was violated because attorney Steven
Popuch allowed him to plead guilty and
admit facts exposing him to state
prosecution, thereby depriving him of the
constitutional protection of the double
jeopardy clause, (2) his Sixth Amendment
right to effective assistance of counsel
was violated because attorney Popuch
failed to perfect an appeal even though
Tezak indicated he wished to appeal, and
(3) the district court committed error in
denying Tezak’s motion for recusal. The
district court, after allowing discovery
and holding an evidentiary hearing,
denied Tezak’s petition.
The first page of Tezak’s plea
agreement states that "this Agreement is
limited to the United States Attorney’s
Office for the Northern District of
Illinois and cannot bind any other
federal, state or local prosecuting,
administrative or regulatory authorities
except as expressly set forth in this
Agreement." There was no specific
exemption on additional prosecution in
the agreement. In addition, at Tezak’s
plea colloquy, the judge specifically
asked Tezak if he understood that the
plea agreement was limited to the U.S.
Attorney’s Office for the Northern
District of Illinois and did not bind
other federal, state, or local
prosecuting, administrative, or
regulatory agencies and authorities.
Tezak said he understood.
In the plea agreement, Tezak stated, "I
knew that the bowling alley was a
financial failure, and that my
partnership in the operation of the
bowling alley was unprofitable. . . . I
decided to burn down the bowling alley
because I believed that I could collect
approximately one million dollars on the
fire insurance policy on the property."
Tezak admitted that he asked one of his
co-conspirators to arrange the arson and
another to give the keys to the building
to the arsonist and to have the building
set on fire. Tezak also admitted
complicity in the PIC building fire,
stating that he was the actual owner of
the building, although he had arranged
for a friend to act as the owner of
record in order to rent the building to
the PIC, yet retain the appearance of
nonpartisan involvement. Tezak stated
that he was approached by John Bays,
another prominent member of the
Republican party in Joliet and a good
friend of Tezak. Bays was the focus of a
grand jury investigation and asked Tezak
to destroy subpoenaed records which were
housed in the PIC building./5 Tezak
arranged for the building to be burned
down. The building and all of the records
were destroyed.
Tezak also admitted that while on
pretrial release in August 1993 he told
his son that he knew his ex-daughter-in-
law Leber was cooperating with the
government. Tezak directed his son to
tell Leber that he would have "her brains
[ ] blown out . . . and . . . cause her
family to be killed." Tezak’s son
admitted that he conveyed that same
message to Leber. In his pre-sentencing
submission statement to the probation
office, Tezak maintained that he "had no
intention of actually harming Nikki or
her family. Again, I have never harmed
anyone in my life." The last statement,
"I have never harmed anyone in my life,"
was a constant refrain made by Tezak.
The plea agreement stated that "the
government shall be free to recommend
whatever sentence it deems appropriate,
including but not limited to recommending
that defendant be sentenced to
consecutive maximum periods of incarcera
tion on each count totaling 20 years
imprisonment, [and] that the court depart
upward from the guideline range in
imposing sentence on Count Five . . . ."
The agreement also stated that the
district court would consider "the
nature, scope and extent of defendant’s
conduct regarding the charges against
him, and related matters, including all
matters in aggravation and mitigation
relevant to the issue of sentencing,"
indicating that the PIC fire could be
used as an aggravating factor in order to
impose a longer sentence.
Tezak initially retained Daniel Webb,
George Lombardi, and Susan Mahoney from
Winston & Strawn in Chicago to represent
him in the criminal proceedings. However,
in addition to the Winston & Strawn
attorneys, in October 1993, Tezak hired
Steven Popuch to assist with the plea
agreement./6 In fact, Popuch was the
only attorney to sign the plea agreement.
At approximately the same time, Tezak
also retained the legal services of
Marcia Shein, an attorney from Atlanta,
Georgia, who is a special consultant on
sentencing issues. Tezak continued to be
represented by all three groups of
attorneys on various issues from the plea
agreement to post-sentencing proceedings.
According to Popuch’s testimony, Tezak
was dissatisfied with the plea
discussions and hoped that Popuch would
be able to negotiate a more favorable
plea agreement with the government, or,
in the alternative, to represent Tezak at
trial. Tezak believed Popuch’s history
with the prosecutor, given that Popuch
and the prosecutor knew each other and
were social acquaintances, would be
helpful. Popuch noted that "what Tezak
wanted to do was have no consequences at
all. He realized that was no longer
possible. Now, he wanted the best
consequences that he could get." Popuch
stated that although the government had
agreed to dismiss the two counts relating
to the PIC building, Tezak’s testimony in
the plea agreement relating to that fire
would be considered under the sentencing
guidelines as relevant conduct. Popuch
stated Tezak agreed to discuss the two
counts upon the condition of dismissal
because the PIC fire occurred after the
United States Sentencing Guidelines
("U.S.S.G." or the "guidelines") went
into effect, thereby eliminating charges
which would have allowed less flexibility
in sentencing and which would have
required more time served before being
eligible for parole. The Galaxy Bowl fire
occurred prior to the guidelines going
into effect and therefore allowed for a
wider range of sentencing options by the
judge and required less time served prior
to parole eligibility. Popuch testified
that he "remember[s] going over just
about every [sentencing] option time and
time and time again" with Tezak. In an
October 15, 1993 memorandum to Winston &
Strawn’s client file, Webb notes that
Tezak "wants Popuch to get a guarantee
from Polales that if Tezak talks about
the PIC fire, he will get the Galaxy
Bowl/ Obstruction of Justice deal. . . .
Tezak wants to be assured that no matter
what he says about PIC, he will get the
Galaxy Bowl/Obstruction of Justice deal."
Popuch also stated that he could not
specifically remember if he ever
discussed the consequences of pleading
guilty to the PIC arson because he
believed that no further action was going
to be taken, although he did state that
it would have been reasonable for him to
have discussed it with Tezak. However,
Popuch testified that he definitely
remembers discussing with Tezak the
possibility of a separate non-federal
prosecution at both the state or local
level based on Tezak’s admissions in the
plea agreement. He distinctly remembers
telling Tezak that "local prosecutors
still had the option of bringing a case
against him," and that Tezak could be
prosecuted for both the Galaxy Bowl fire
and the PIC fire. In a memorandum written
by Lombardi dated October 22, 1993 from
the Winston & Strawn client file,
Lombardi noted that he had "reviewed the
plea agreement with Popuch and have told
him that we think he did a good job. I
asked him a number of times if he
explained to [Tezak] the consequences of
the various provisions and he said that
he had. Polales would not agree to limit
in any way [Tezak]’s possible future
exposure for the crimes that he discloses
while cooperating with the government . .
. ." Popuch told Tezak that there can be
parallel state and federal prosecutions
and that he "routinely tell[s] federal
clients and state clients who have
possible federal charges that one does
not necessarily exclude the other, that
double jeopardy does not pertain." Popuch
stated that he discussed the potential
for Tezak being prosecuted by state
authorities in connection with the Galaxy
Bowl arson as well as the PIC arson,
although Popuch also told Tezak that he
believed "it was highly unlikely." Popuch
also testified that as a criminal
attorney who had at least twenty-two
years experience, he made a tactical
decision not to negotiate a resolution of
potential state charges because "actual
dual prosecutions are so rare, that you
do not want to remind somebody that it is
a possibility and awaken a sleeping
tiger," particularly "knowing that they
can prosecute a high-profile defendant."
At the sec. 2255 hearing, Gary Shapiro,
First Assistant U.S. Attorney, whose
responsibilities included reviewing more
than 500 plea agreements each year for
approximately seven years, testified that
out of all the pleas he had reviewed, in
only one instance of multiple murders did
the state ever pursue prosecution from a
defendant’s admission to uncharged,
relevant conduct. He also stated that he
considered state prosecution of plea
admissions to federal uncharged conduct
to be "a highly unusual event."
As to the appeal, Popuch stated that he
discussed filing a notice of appeal with
Tezak.
Immediately after the sentencing, [Tezak]
was sitting in one of the jurors’ seats.
I was standing there talking to him. He
was in shackles at the time. Marcia Shein
was there and, I believe, George
Lombardi. . . . And it was the unanimous
feeling of all three of the attorneys
that were present that no appeal would be
viable and that he would do much better
to do as the Judge had suggested even
prior to sentencing, which [wa]s to pay
the restitution and file a Rule 35
[motion to reduce sentence]./7
Popuch stated that he discussed the
appeal again with Tezak in the week
following the judgment and Tezak again
agreed not to file one./8 Popuch
testified under oath at the sec. 2255
hearing that Tezak "absolutely [did] not"
contact him to file an appeal in the two
weeks after judgment was entered, nor did
he have any communication with James
Casey, Popuch’s associate,/9 as to
Tezak wanting to file an appeal.
In Shein’s deposition testimony, she
recalled a discussion with Tezak, Webb,
and Popuch in the courtroom after
sentencing on July 29, with all parties
agreeing that Tezak should pursue
restitution and a Rule 35 reduction of
sentence motion, stating that "[an]
appeal would not be viable" and "would be
frivolous." She stated that Tezak agreed
with them about not filing an appeal. She
explained that she also thought an appeal
would be useless because of the U.S.S.G.
sec. 2J1.7/10 issue concerning the
obstruction of justice charge committed
while on release, because the judge had
stated he would have departed upward with
or without consideration of that issue.
Shein also stated that Judge Andersen
had repeatedly emphasized how serious
Tezak’s offenses were and how important
restitution would be. She noted, however,
that while "[Tezak] wanted the Court to
think he was going to pay [restitution]
and get the benefit of that
consideration," as far as she was aware,
Tezak has never paid any restitution. In
addition, she stated that at the
sentencing hearing on July 29, "Judge
Andersen was upset about the bankruptcy
issue and how [Tezak] was attempting,
[Judge Andersen] felt . . . to manipulate
the Court on this information . . . ."
Shein was referring to information given
by Robert Cook, Tezak’s bankruptcy
attorney from Arizona, who addressed the
court at the May 16, 1994 sentencing
hearing. Cook, who had specialized in
bankruptcy for over twenty-four years,
told Judge Andersen,
Three hundred thousand dollars has been
paid toward restitution. . . . Mr. Tezak
in no uncertain terms instructed me to
pay restitution period, [although] in
order for Mr. Tezak to have made the
restitution which he did, it was
necessary to file Chapter 11 because one
of his large secured creditors was out
and tried to impound and enforce
judgements . . . . All of the claims
would have undergone extreme difficulty
in being, in my opinion, confirmed and
approved of in a proof of claim trial in
the Bankruptcy Court.
However, at the July 29, 1994 sentencing
hearing, Cook testified the checks issued
for restitution were actually conditional
endorsements which basically rendered the
checks "valueless." The judge stated, "My
impression then [at the previous hearing]
and my impression now is that those
checks were physically issued to try to
make me believe that it was done, that
restitution was paid. And it turned out
that it hasn’t been paid."/11
In responding to the production of a
copy of a handwritten letter addressed to
Popuch and signed by Tezak, dated August
4, 1994, which directs Popuch to file a
notice of appeal, Popuch stated that he
never received any such letter and that
it was "clearly manufactured" after the
fact. Popuch also noted that had Tezak
instructed him to file a notice of
appeal, even though it was against
Popuch’s advice, he would have been
obligated to do so and that it was a
simple matter to file the one-page
notice.
However, contradicting Popuch’s
statements is the deposition testimony of
Casey,/12 the associate who assisted
in Tezak’s defense. Casey testified that
he was "basically a conduit between Mr.
Tezak and Mr. Popuch," and that he met
four or five nights every week with Tezak
after the July 29, 1994 sentencing
hearing. He stated, "On more than one
occasion, Mr. Tezak made abundantly clear
to me that he wanted his notice of appeal
filed, notwithstanding the fact that
there was a plea agreement in this
particular case," and that Casey advised
Popuch of this "not just once but on
several occasions." Casey also stated
that one day after the ten-day deadline
for filing the notice of appeal expired,
he recalled Popuch realizing that he had
"dropped the ball."
There was also a memorandum dated
September 9, 1994 from the Winston &
Strawn client file written by Mahoney,
which stated that Casey told her he
planned to file a notice of appeal. She
stated that Casey had told Tezak there
was no appealable issue and that Casey
believed Tezak agreed with him, but
wanted to file the notice anyway.
ANALYSIS
A. Standard of Review
We review the denial of a sec. 2255
petition for clear error on factual
matters and de novo on questions of law.
Mason v. United States, 211 F.3d 1065,
1068 (7th Cir. 2000).
B. Ineffective Assistance of Counsel
In order to make a claim for ineffective
assistance of counsel, defendant must
establish that counsel’s performance was
deficient and that this "deficient
performance" caused prejudice to the
defendant. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). This analysis
applies to guilty plea challenges based
upon ineffective assistance of counsel
claims. Hill v. Lockhart, 474 U.S. 52,
57-58 (1985). The district court
correctly concluded that Tezak did not
establish either factor.
1. Plea Agreement
Tezak claims ineffective assistance of
counsel because his lawyer allowed him to
plead guilty and admit facts exposing him
to state prosecution, thus depriving him
of the constitutional protection of the
double jeopardy clause. "A voluntary and
intelligent plea of guilty made by an
accused person who has been advised by
competent counsel, may not be
collaterally attacked." Mabry v. Johnson,
467 U.S. 504, 508 (1984).
Moreover, in the context of a guilty
plea, a defendant is not entitled to sec.
2255 relief unless he can show that, but
for the deficient advice of counsel, he
would have insisted on going to trial.
Hill, 474 U.S. at 59; Gargano v. United
States, 852 F.2d 886, 891 (7th Cir.
1988). Tezak had three attorneys working
on the plea agreement with him prior to
his hiring a fourth criminal defense
specialist (not to mention a fifth
attorney specializing in sentencing
issues). By dropping the PIC charges,
Tezak not only reduced his sentence by a
possible fifteen years,/13 but he
limited his exposure under the
guidelines. The record makes it clear
that the prosecutor would not drop the
sentencing guideline charges unless Tezak
agreed to a truthful admission of facts
about the PIC arson. The October 15, 1993
Winston & Strawn memorandum indicates
that Tezak wanted the plea agreement and
was not considering any other
alternative. He brought in Popuch
specifically to close the plea agreement
deal. There was no reasonable probability
that Tezak would have insisted on going
to trial.
The plea agreement clearly states that
it was limited to the United States
Attorney’s Office for the Northern
District of Illinois and that there was
no exemption from additional prosecution
at either federal, state, or local
levels. At Tezak’s plea colloquy, Judge
Andersen specifically asked Tezak if he
understood that the plea agreement was
limited to the United States Attorney’s
Office for the Northern District of
Illinois and that there was no exemption
from additional prosecution at any other
federal, state, or local levels. Tezak
answered that he fully understood that
provision. He also stated that he
"voluntarily underst[oo]d and accepted
each and every term of [the plea
agreement]." The judge also questioned
Tezak about his legal counsel.
Judge: [I]n this case obviously Mr.
Tezak is represented by four eminent
attorneys. And I know that you have
discussed with your lawyers the wisdom of
multiple representation so that you could
understand everything that has taken
place. Do you feel comfortable with your
representation now?
Tezak: Yes, sir.
Judge: And it’s your desire to have Mr.
Webb and his colleagues as well as Mr.
Popuch represent you, correct?
Tezak: Yes, sir.
Judge: And you feel you have good,
competent legal advice and feel
comfortable with the advice you have
gotten.
Tezak: Yes, sir.
In addition, Popuch’s testimony,
corroborated by the Winston & Strawn
memoranda of October 15 and 22 indicated
that Popuch had discussed the possibility
of additional prosecution with Tezak. The
record shows that Tezak’s plea agreement
was made voluntarily and intelligently,
with knowledge of possible further
prosecution.
As to ineffective assistance of counsel,
Tezak has not established that attorney
Popuch’s performance was objectively
unreasonable nor that he would not have
entered a guilty plea absent counsel’s
alleged errors. The fact that Popuch’s
strategy of not contacting state
prosecutors to seek an agreement on the
PIC arson does not amount to unreasonable
performance. See United States v.
Arvanitis, 902 F.2d 489, 494 (7th Cir.
1990) ("An inaccurate prediction,
standing alone, does not constitute
ineffective assistance.") (internal
quotations and citation omitted). In
addition, Shapiro’s testimony at the sec.
2255 hearing indicated that Popuch’s
prediction that the state does not
usually prosecute admissions of uncharged
conduct was a reasonable conclusion. See
Lane v. Singletary, 44 F.3d 943, 944
(11th Cir. 1995) (holding that it is not
ineffective assistance of counsel to fail
to advise defendant of possible
subsequent prosecution arising from a
plea agreement when counsel had reason to
believe no subsequent prosecution would
ensue). Popuch’s performance was not
deficient as required under Strickland.
Nor did Tezak establish prejudice due to
the fact that he would have insisted on
going to trial, as discussed above. See
Hill, 474 U.S. at 59. Tezak does not
suggest that he is not guilty; he simply
maintains that he should have had the
opportunity to strike a better bargain
with the government. This is not
sufficient to establish prejudice. See
Gargano, 852 F.2d at 891. Therefore, he
has failed to satisfy either prong of the
Strickland test on this issue.
2. Double Jeopardy
Tezak was not charged with the PIC arson
but his admissions of fact were used as
relevant conduct in order to enhance his
sentence. The double jeopardy clause
provides: "[N]or shall any person be
subject for the same offence to be twice
put in jeopardy of life or limb." U.S.
Const., Amdt. 5. In clarifying double
jeopardy jurisprudence, the Supreme Court
stated that "a mere overlap in proof
between two prosecutions does not
establish a double jeopardy violation,"
relying "on the basic, yet important,
principle that the introduction of
relevant evidence of particular
misconduct in a case is not the same
thing as prosecution for that conduct."
United States v. Felix, 503 U.S. 378,
386-87 (1992).
The double jeopardy clause does not bar
dual prosecutions in state and federal
courts, even where the offenses are
identical. See Heath v. Alabama, 474 U.S.
82, 92 (1978); United States v. Jordan,
870 F.2d 1310, 1312 (7th Cir. 1989). In
addition, the Court specifically held
that consideration of uncharged relevant
conduct in determining a defendant’s
sentence under the federal sentencing
guidelines does not constitute punishment
for that conduct and double jeopardy does
not bar a subsequent prosecution for that
conduct. Witte v. United States, 515 U.S.
389, 403-04 (1995). There can be no
double jeopardy violation with the
subsequent state court prosecution based
on the admission of facts about the PIC
arson which was offered as an aggravating
factor.
Finally, no double jeopardy violation
occurred in federal court because Tezak
pled guilty and was sentenced before he
was indicted, tried, convicted, and
sentenced in state court. A sec. 2255
petition is not the proper procedure for
attacking the state conviction and
sentence, which Tezak asserts was the
double jeopardy offense and conviction.
Tezak attempted to dismiss the state
charges on double jeopardy grounds and
failed. He also appealed his state
conviction on double jeopardy grounds
pursuant to 720 Ill. Comp. Stat. 5/3-4,
which states in pertinent part:
(c) A prosecution is barred if the
defendant was formerly prosecuted in a
District Court of the United States . . .
if such prosecution:
(1) Resulted in either a conviction or
an acquittal, and the subsequent
prosecution is for the same conduct,
unless each prosecution requires proof of
a fact not required in the other
prosecution . . . .
In an unpublished opinion, the Illinois
Appellate Court rejected Tezak’s argument
that sec. 5/3-4 barred state prosecution,
noting that Tezak’s participation in the
PIC arson was used in the federal
prosecution for sentencing purposes only
in the Galaxy Bowl arson, and that
dismissal of the PIC charges did not meet
the conviction or acquittal requirement
for the purposes of sec. 5/3-4. See
People v. Porter, 620 N.E.2d 381, 384
(Ill. 1993) (holding that the absence of
one of the four requirements under 720
ILCS 5/3-4(c)(1), (1) federal or sister
state prosecution must be former
prosecution, (2) former prosecution must
have resulted in acquittal or conviction,
(3) both prosecutions must be for same
conduct, and (4) proof of every required
fact of one of the prosecutions must be
required in other prosecution, renders
sec. 5/3-4(c)(1) inapplicable).
Tezak also seems to be arguing that
Popuch should have discussed the fact
that state prosecution would have been
barred by sec. 5/3-4 if he had been
convicted or acquitted of the PIC arson.
This argument makes no sense because
throughout the record, it is clear Tezak
wanted the PIC charges dropped. All of
Tezak’s arguments on this issue are
without merit. Jeopardy does not attach
to charges dismissed as part of a plea
agreement. See United States v. Garner,
32 F.3d 1305, 1311 n.6 (8th Cir. 1994)
(listing cases). Nor does ignorance of a
possible state prosecution implicate the
double jeopardy clause, see United States
v. McKinley, 23 F.3d 181, 185 (7th Cir.
1994), even though there was evidence in
the record that Tezak was aware of the
possibility of additional prosecution.
C. Notice of Appeal
Tezak claims that he instructed Popuch
to file an appeal. In addition to his own
affidavit, he offered the affidavits of
Cook (his bankruptcy lawyer) and his
personal attorney in Arizona (who was not
involved in the federal criminal
proceedings), in support of this
assertion. The district court allowed
discovery on this issue and the
depositions of Popuch, Webb, Casey, and
Shein were taken. The court then held an
evidentiary hearing. At the request of
the government, Popuch testified at the
hearing. Tezak did not call any witnesses
nor did he testify. As discussed
previously, conflicting testimony was
presented about the filing of an appeal.
The district court did not credit Casey’s
deposition testimony, which the court
stated indicated a bias against Popuch on
Casey’s part due to the check forgery.
Also, given Tezak’s vocal and commanding
participation in his defense
presentation, the court found it
improbable that even though the record
contained numerous correspondence from
Tezak to his attorneys and numerous
memoranda concerning Tezak’s directives
and complaints to all of his attorneys,
there had been no complaint noted from
Tezak, vocal or written, that his
attorneys had failed to file an appeal
until the filing of the sec. 2255
petition nearly two-and-a-half years
later. The court also noted that Tezak
never, at any time in his appearances
before and during the Rule 35 motion,
made a complaint about the failure of his
attorneys to file a notice of appeal. The
court discounted the letter from Tezak
dated August 4, 1994 to Popuch, a copy of
which was produced by Tezak, but never
found in Popuch’s files, particularly in
light of the fact that even after Tezak
allegedly sent this letter to Popuch, he
continued to retain and be represented by
Popuch. As for the Mahoney memorandum of
September 9, the court noted that this
discussion preceded Casey’s filing on
September 15, 1994, a motion to extend
the time for filing a notice of appeal
out of time, which the court denied due
to untimeliness and for failure to state
reasons of excusable neglect. Judge
Andersen stated that the reasonable
conclusion was that Tezak had decided to
forego the appeal in order to pursue the
Rule 35 motion, which, in fact, ensued.
The district court found that Tezak had
failed to credibly show that he asked
Popuch to appeal the sentence or that
Popuch refused to do so.
We accord the district court’s
credibility findings exceptional
deference, United States v. White, 270
F.3d 656, 661 (7th Cir. 2001), and those
findings "can virtually never be clear
error." Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 575 (1985)
(citations omitted). As is clear from the
record, Judge Andersen considered all of
the conflicting evidence at length and in
detail, and was in a far superior
position to assess credibility. See
United States v. House, 110 F.3d 1281,
1285-86 (7th Cir. 1997).
Tezak is mistaken in his reliance on
Castillo v. United States, 34 F.3d 443
(7th Cir. 1994). The defendant in
Castillo filed a sec. 2255 petition
claiming that he had not made an
effective waiver of his right to be
represented by a different lawyer from
his codefendant. Id. at 443. Castillo’s
motion was supported by his affidavit.
Id. at 444. The judge in Castillo held an
impromptu "evidentiary hearing" at a
routine status call on the motion, and,
classifying the testimony of Castillo’s
probation officer elicited at that
"hearing" as an "oral affidavit," denied
Castillo’s motion. Id. This court
overruled that holding, noting that the
use of affidavits does not allow a judge
"to resolve the dispute by picking one
affidavit over another that contradicts
it . . . ." Id. at 445 (citations
omitted). In the instant case, the judge
was familiar with all of the particulars
of the case and all of the parties and
witnesses involved. Unlike affidavits,
depositions were submitted which allowed
for direct and cross examination by both
parties. Tezak could have deposed
additional witnesses or called them to
testify at the evidentiary hearing.
Instead, he chose to rely on the
submitted depositions and his three
affidavits. The district court did not
err in assessing the evidence and making
a credibility determination. Tezak is now
asking this court to reassess that
determination, but that is not a basis
for appellate review. See United States
v. Burke, 125 F.3d 401, 404 (7th Cir.
1997). We cannot say the district court’s
determinations on this issue are clearly
erroneous.
D. Recusal
Five months after filing his sec. 2255
petition, Tezak filed a motion to recuse
Judge Andersen pursuant to 28 U.S.C. sec.
144./14 Tezak maintains that (1) the
affidavits of Tezak and John Bays
establish factual assertions that Judge
Andersen had a personal bias and
prejudice against Tezak and (2) that
various statements and comments made by
the judge during the criminal proceedings
establish bias. The district court denied
the motion.
A district court judge’s decision not to
recuse himself is reviewed under an abuse
of discretion standard. United States v.
Franklin, 197 F.3d 266, 269 (7th Cir.
1999). As to the first assertion, Tezak
claims he was the underlying target of an
investigation conducted by the Illinois
Secretary of State’s office against Bays
in 1985. Bays was the target of the
investigation involving the subpoenaed
documents which were destroyed in the PIC
arson. Tezak argued that Judge Andersen
was a high-ranking official of the
Illinois Secretary of State’s office, and
therefore,
[in Tezak’s] attempt to assist his friend
by intervening in the investigation of
the Secretary of State’s office, he made
himself the real target of the subsequent
investigation. As a result of Mr. Tezak’s
power and influence at the time . . .
Judge Andersen, while an official in the
Chicago office of the Secretary of
State’s office had to have been aware of
[these circumstances] . . . and as a
result, had a bias against Tezak before
any information was acquired by the judge
during the course of the judicial
proceedings.
A motion to disqualify a judge pursuant
to sec. 144 is allowed if a party files
a timely/15 and sufficient affidavit
that the judge has a personal bias or
prejudice against a party./16 United
States v. Balistrieri, 779 F.2d 1191,
1199 (7th Cir. 1985). The factual
statements of the affidavit must support
an assertion of actual bias. Id. We can
credit only those facts which are
"sufficiently definite and particular to
convince a reasonable person that bias
exists; simple conclusions, opinions, or
rumors are insufficient." United States
v. Boyd, 208 F.3d 638, 647 (7th Cir.
2000), cert. denied, ___ U.S. ___, 121
S. Ct. 1072 (2001). The factual averments
must be stated with particularity and
must be definite as to times, places,
persons, and circumstances. Balistrieri,
779 F.2d at 1199. The court must assume
the truth of the factual assertions even
if it "knows them to be false." Id.
Although we must treat the factual
averments as true, we are not bound to
accept the movant’s conclusions as to the
facts significance. Id. at 1200.
Under sec. 144, the statute limits a
party to filing only one affidavit in a
case. Id. at 1200 & n.6. Tezak’s
affidavit states that he believed
statements he had made in the past about
having influence with Judge Andersen were
made known to the judge. He states that
he was then told he could have the case
transferred to another judge, but elected
not to do so. However, Tezak’s affidavit
states he was later told by Bays that
Judge Andersen had worked at the
Secretary of State’s office, allegedly
during the time of the investigation, and
if he had known that when he was offered
the possibility of transferring to
another judge, he would have chosen to do
so./17 There are no specifics as to
times, places, persons, or circumstances
which show a definite connection between
Judge Andersen and the Bays/ Tezak
investigation. In addition, Tezak is
relying on events which took place more
than eight years prior to Tezak’s
appearance before Judge Andersen in 1992.
The affidavit contains nothing to show
that the supposed bias, if any, persisted
over the years to the degree that the
judgment of Judge Andersen was still
effected in 1993. See Balistrieri, 779
F.2d at 1200-01. Nor does the affidavit
present any factual details establishing
Judge Andersen’s involvement in the
investigations that eventually led to
Tezak’s arrest. Even if Judge Andersen
had been aware of the investigations,
Law enforcement professionals typically
take action against a wide variety of
persons during their careers, motivated
by nothing more than a desire to carry
out the duties of their offices. Even a
series of actions against a person
according to a plan is not enough in
itself to show bias or prejudice; such
activity is perfectly compatible with
personally disinterested professional
motivation.
Id. at 1201. All of Tezak’s assertions
are merely unfounded conclusions. Because
Tezak’s affidavit has not presented any
facts establishing a connection between
Judge Andersen and the Secretary of
State’s Bays/Tezak investigations, sec.
144 is inapplicable. See Boyd, 208 F.3d
at 647.
Tezak also states that certain comments
made by the judge during the sentencing
hearings indicated prejudice against
Tezak, resulting in a lengthier sentence.
Actual bias under sec. 144 must show some
personal animus or malice on the part of
the judge. See Balistrieri, 779 F.2d at
1201. The general presumption is that
judges rise above any potential biasing
influences. See Withrow v. Larkin, 421
U.S. 35, 47 (1975). Comments made by the
judge "during the course of trial that
are critical or disapproving of, or even
hostile to, counsel, the parties, or
their cases, ordinarily do not support a
bias or partiality challenge." United
States v. Liteky, 510 U.S. 540, 550-51
(1994) ("The judge who presides at a
trial may, upon completion of the
evidence, be exceedingly ill disposed
towards the defendant, who has been shown
to be a thoroughly reprehensible person.
But the judge is not thereby recusable
for bias or prejudice"). A judge’s
expressions of "impatience,
dissatisfaction, annoyance, and even
anger, that are within the bounds of what
imperfect men and women, even after
having been confirmed as federal judges"
are not sufficient to demonstrate bias or
prejudice. Id. at 555-56. There was no
showing of a personal motive or a
discriminatory prejudice on the judge’s
part. See Balistrieri, 779 F.2d at 1201.
The record offers no evidence of any
personal revenge or malice Judge Andersen
had against Tezak. See United States v.
Ward, 211 F.3d 356, 364 (7th Cir. 2000).
In fact, the details of the record show
just the opposite; Judge Andersen was
extraordinarily fair-minded in his
treatment of Tezak throughout all of the
proceedings. The comments made during the
course of Tezak’s criminal proceedings
are not sufficient to demonstrate bias or
prejudice. The proceedings were well-
handled and we find no abuse of
discretion.
CONCLUSION
For the above-stated reasons, we AFFIRM
the district court’s denial of the
amended sec. 2255 petition and its denial
of the motion to recuse.
FOOTNOTES
/1 Tezak submitted a Personal Financial Report dated
June 30, 1993, listing $33,596,000 in assets and
$16,005,000 in liabilities. In March 1994, Tezak
filed a Chapter 11 bankruptcy proceeding, No. 94-
02014-PHX-GBN, in the District of Arizona, list-
ing $29,193,857.50 in total assets and
$17,230,623.46 in total liabilities. However,
Tezak’s attorneys argued throughout the proceed-
ings that, in reality, Tezak’s liabilities out-
weighed his assets.
/2 Tezak maintains a residence in Joliet, Illinois
but sometime after 1982 purchased a $2.6 million
second residence in Phoenix, Arizona, where he
resided prior to incarceration.
/3 Counts one and two were not subject to the United
States Sentencing Guidelines ("U.S.S.G." or the
"guidelines") as the offense conduct occurred
prior to November 1, 1987, after which date the
guidelines went into effect.
/4 The district court ordered a urinalysis for drug
testing to be done immediately after the Septem-
ber 3 motion hearing, but Tezak refused to pro-
vide a sample until two days later. He argued
that he was in shock at the September 3 hearing
and did not remember the judge ordering the test
and that he may have remembered the judge order-
ing the test but that the judge did not order him
to submit to the test. The results from that test
had not been returned for the September 16 hear-
ing on Tezak’s second motion to reinstate bond.
However, the results were received prior to the
September 29 hearing, testing positive for co-
caine and THC (a marijuana-hashish derivative).
/5 Tezak also admitted to a secondary interest in
making a claim for loss of the building with the
insurance company.
/6 A memorandum written by Webb dated October 15,
1993 taken from the Winston & Strawn file on
Tezak stated that Webb had met with Tezak that
day and Tezak "was adamant that we should not
withdraw from the case. . . . he stated that he
was pleased with our representation of him and
that he would not trust anyone else to try the
case. . . . Tezak stated that he had hired Steve
Popuch . . . [and] the scope of Popuch’s repre-
sentation was to be limited to negotiating a plea
with [the government prosecutor] Dean Polales. He
was not to handle anything in court. . . . Tezak
also told me, off the record, that Popuch and
Polales have a close personal relationship and
that he believes this will help in getting a deal
done."
/7 Popuch advised Tezak to pay the restitution first
because Judge Andersen had "focused on [restitu-
tion] so much as a redemptive act and a rehabili-
tative act [which] he would take notice of both
before and after sentencing." Shein also agreed
on that position. However, Popuch also stated
that Tezak had filed for bankruptcy prior to
sentencing in the hope that the bankruptcy would
impact on the amount of restitution to be as-
signed.
/8 The attorneys were in agreement to press the Rule
35 motion as the most expeditious means of reduc-
ing Tezak’s sentence because, under the "old"
Rule 35 at that time, if a defendant filed a
notice of appeal, the district court was divested
of jurisdiction and the Rule 35 motion could not
be filed until after the appellatemandate had
issued. This would have caused considerable delay
in addressing the sentencing issues given the
fact that the attorneys believed there were no
viable issues on appeal.
/9 Casey assisted Popuch on the Tezak case from the
beginning. According to Popuch, in June of 1995,
Casey inexplicably stopped coming to work. Al-
though Popuch stated that other people had seen
Casey and that he seemed physically well, Popuch
never heard from Casey again. However, Popuch
also testified that Casey had forged his signa-
ture and the signature of another partner on at
least two checks drawn on the law office account.
Popuch never located Casey but contacted Casey’s
father, who partially repaid the disputed funds.
/10 Section 2J1.7, Commission of Offense while on
Release, provides, "If an enhancement under 18
U.S.C. sec. 3147 [penalty for an offense commit-
ted while on release] applies, add 3 levels to
the offense level for the offense committed while
on release as if this section were a specific
offense characteristic contained in the offense
guideline for the offense committed while on
release."
/11 There is no evidence in the record to indicate
that any restitution money was ever paid.
/12 Casey testified at his deposition that he now
lives in Arizona, although he refused to state
who his employer was. He also stated that he has
had further contact with Tezak since moving to
Arizona.
/13 Count three carried a maximum penalty of five
years and count four a maximum of ten years.
/14 28 U.S.C. sec. 144 provides in pertinent part:
Whenever a party to any proceeding in a dis-
trict court makes and files a timely and suffi-
cient affidavit that the judge before whom the
matter is pending has a personal bias or preju-
dice either against him or in favor of any
adverse party, such judge shall proceed no fur-
ther therein, but another judge shall be assigned
to hear such proceeding.
The affidavit shall state the facts and the
reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten days
before the beginning of the term at which the
proceeding is to be heard, or good cause shown
for failure to file it within such time. A party
may file only one such affidavit in any case. It
shall be accompanied by a certificate of counsel
of record stating that it is made in good faith.
/15 The motion must be filed "at the earliest moment
after [the movant acquires] knowledge of the
facts demonstrating the basis for disqualifica-
tion." United States v. Sykes, 7 F.3d 1331, 1339
(7th Cir. 1993) ("two months after the allegedly
prejudicial statement is certainly not ’at the
earliest possible moment’"). Tezak’s motion did
not state when he knew of the alleged prejudice.
Bays’ affidavit stated that he told Tezak of
Judge Andersen’s connection with the Secretary of
State’s office after Tezak’s federal sentencing.
While it stretches credulity to think that Tezak
was not made aware of this information during the
two-and-a-half years from when the sentencing
order was issued on August 10, 1994 to the
submission of the recusal motion on April 29,
1997, it remains Tezak’s burden to establish that
the motion was filed at the earliest possible
moment after learning of the facts showing bias.
See id. Because Tezak has failed to state with
particularity when he learned of the pertinent
facts prior to filing the motion, we cannot say
he has met this burden. However, we need not rely
on this basis for dismissal due to our findings
on the merits.
/16 Unlike sec. 144, which requires recusal of a
judge when there is actual personal bias or
prejudice, 28 U.S.C. sec. 455(a) requires a judge
to recuse himself when his presiding over a case
would create an appearance of bias. United States
v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989).
Denial of a motion for recusal based on the
appearance of impropriety can only be challenged
with a writ of mandamus. A party cannot appeal a
judge’s failure to recuse under sec. 455(a) after
the proceeding in question is completed. Id.
Tezak correctly did not seek recusal under sec.
455(a).
/17 Bays’ affidavit simply states that Bays was told
by an official at the Illinois Secretary of
State’s office that "the person whom the investi-
gation was really directed at was Robert Tezak
for whom there was a personal dislike by several
officials of the Secretary of State’s office."
There is no mention of Judge Andersen in Bays’
statement. Even had both affidavits been consid-
ered, there are still no specific facts clearly
indicating actual bias on Judge Andersen’s part.
See Balistrieri, 770 F.2d at 1200.