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April 28, 2010

Interesting probation condition claim in (novel?) "couple sentencing" rejected by Seventh Circuit

The Seventh Circuit has an interesting sentencing ruling today in US v. Diekemper, No. 09-2081 (7th Cir. Apr. 28, 2010) (available here), which caught my eye particularly because of a novel claim is a (perhaps) novel sentencing deal involving a couple involved in fraud conspiracy . Here is how the Diekemper opinion starts:

Joseph Diekemper pled guilty to conspiracy to commit bankruptcy fraud, conspiracy to commit mail fraud, making false statements for the purpose of influencing the United States Department of Agriculture (“USDA”) Commodity Credit Corporation, and perjury. Diekemper’s wife and co-conspirator, Margaret Diekemper, was sentenced first and received two years’ probation for her involvement in the conspiracy. As a condition of that probation, Mrs. Diekemper was prohibited from all contact with her husband during those two years. Diekemper was sentenced subsequently, and after receiving a four-level enhancement for his leadership role, he received a within-guidelines sentence of 120 months’ imprisonment.

Diekemper appeals his sentence, alleging that (1) his wife’s probation condition violates his fundamental right to a marital relationship; (2) the district court judge’s failure to recuse himself for bias violates Diekemper’s right to due process; (3) the district court’s application of the sentencing enhancement was in error; and (4) the district court’s failure to weigh all of the sentencing factors in 18 U.S.C. § 3553 was in error. We affirm.

April 28, 2010 at 04:16 PM | Permalink


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Note that the court's rejection of point (1) is on standing, not substance. Mr. Diekemper cannot, in the appeal from the judgment in his case, challenge a condition of probation imposed on Mrs. Diekemper in her case.

Posted by: Kent Scheidegger | Apr 28, 2010 4:36:44 PM

Holy Smokes! Read this: "Diekemper’s argument fails at its inception because
the probation condition with which he takes issue was decided in an entirely different case. He is appealing the final judgment in his own case, not the final judgment in Mrs. Diekemper’s case. Mrs. Diekemper neither took issue with her probation condition nor appealed hersentence. And that judgment is not now before us. We therefore have no ability to reach the probation condition
because the judgment imposing that conditionis not on appeal."

Huh? What? That makes no sense whatsoever. If there is indeed a martial right, and I think there is, then everything in that quote is a non sequitur. The court is saying they cannot decide if there is an martial right because there is no martial right.

Posted by: Daniel | Apr 28, 2010 4:45:54 PM

Kent. For some reason you comment did not show up before I posted. In any event, the standing argument makes no sense. The very definition of martial right is that "that the two shall become one." That's what community property means, for example. If there is a martial right then by definition he does have standing to sue because the martial right means that his case and her case are not seperate. If they court wants to say there is no martial right, then it can explain its reasoning on that score. But the courts reasoning as it stands is either circular or a non sequitur, take your pick.

Posted by: Daniel | Apr 28, 2010 4:56:10 PM

But Daniel, he's not "suing," he's appealing the judgment in a criminal case against him. I don't see how that's the appropriate place to complain about a condition put on another defendant in another criminal case, even if you're complaining that it violates your rights as a third party somehow.

Posted by: Jay | Apr 28, 2010 5:13:51 PM

Kent's point is a good one, although I can see the argument that the sentence on the wife is de facto also a sentence on the husband, effected by subterfuge in effect. He is punished by it despite the fact that it isn't expressly a part of his sentence.

Query, if he would have standing to make a collateral attack. Normally, one doesn't have standing to challenge a third party condition of probation, but normally, it doesn't pertain to you.

The difficulty for the wife is that she otherwise got a good deal which she doesn't want to upset by having an arguably unconstitutional or not statutorily authorized condition set aside and followed by a resentencing.

It is hard to see that the absolute limitation on the wife has a valid legal basis without her request for it (a la a restraining order), even if it isn't appropriately challenged in this proceeding. Even murderers on death row are generally allowed monitored non-contact visits with a spouse at regular visiting times, at least if they aren't in violation of prison rules.

This is the sort of case that the European civil law practice of auditing trial court rulings not appealed by any party might appropriately fit.

Posted by: ohwilleke | Apr 28, 2010 6:32:31 PM

Could Diekemper have intervened and filed an appeal in his wife's case, i.e., that the terms of her probation would amount to a violation of his rights? If so, and assuming that there's no issue with notice to him (hard to imagine that notice would be an issue), not sure why it's not sufficient to say he would have had standing to object in his wife's case, but the condition in his wife's case has nothing to do with his own sentence.

Posted by: anonymous | Apr 28, 2010 6:34:59 PM

@jay. You're missing the point. The fundamental thrust of martial rights is that it's NOT a separate case. If one accepts the premise that the wife's case is separate from the husband's case then there are no martial rights in this case. It's not even a question collateral attack. When you sentence the wife you sentence the husband and when you sentence the husband you sentence the wife. If there are martial rights then it doesn't matter which individual appealed what because in either case it's a joint appeal on behalf of the union.

What the court should have said was the appellant has no martial rights in this instance ergo he has no standing. What it said, wrongly, was that the appellant has no standing ergo as a de facto matter he has no martial rights.

Posted by: Daniel | Apr 28, 2010 7:09:15 PM

I dont have a problem with this rulings, if the Circuit Judges thought so fit, except the probation count. Yet, yes that the council waived his rights to arguing it, but since he wants to argue it now, why not just let him?

Also I hate when courts use Guideline range sentences. I am a firm believer that there is always a factor that should lower a sentence down the guideline range, or in certain times, above for other types of factors.

Posted by: N/A | Apr 28, 2010 7:27:25 PM

Diekemper might not be the first farmer to try to "weasel out" of debts. But one has to wonder how many other farmers end up serving decade-long prison sentences for weaseling out of debts?

Seems harsh.

The circuit court certainly honored its obligation to review the appeal in the light most favorable to the government.

Posted by: John K | Apr 29, 2010 1:01:30 PM

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