United States v. David Tresch , 626 F. App'x 638 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 22, 2015*
Decided December 22, 2015
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 15-1993
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12-cr-00658
DAVID TRESCH,
Defendant-Appellant. Edmond E. Chang,
Judge.
ORDER
After David Tresch was arrested for mail fraud, see 18 U.S.C. § 1341, he posted
$45,000 as security on a $100,000 appearance bond. He later pleaded guilty and was
sentenced to 27 months’ imprisonment. He also was ordered to pay $1.1 million in
restitution and a $100 special assessment. The district court then applied the $45,000 to
Tresch’s monetary obligations, see 28 U.S.C. § 2044, and denied his motion to exonerate
the bond, see FED. R. CRIM. P. 46(g). Tresch appeals this decision, which we affirm.
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-1993 Page 2
Section 2044 of Title 28 provides that, on the government’s motion, the district
court shall order that “any money belonging to and deposited on behalf of the defendant
with the court for the purposes of a criminal appearance bail bond” be paid to the
government and “applied to the payment of any assessment, fine, restitution, or penalty
imposed upon the defendant.” In this court Tresch principally argues that he was denied
due process because he was not told when he posted the $45,000 that it might not be
returned. If he had known this, Tresch says, he “could have” decided not to post the
money and remained in jail.
Ordinarily, a statute is presumed to supply all the notice required by the Due
Process Clause. See Atkins v. Parker, 427 U.S. 115, 130–31 (1985); Gates v. City of Chicago,
623 F.3d 389, 398 (7th Cir. 2010). And if that presumption does not resolve Tresch’s
contention, we note that saying he “could have” stayed in jail is not the same as saying
he “would have” declined to post the security for his bond. Thus, Tresch does not even
allege that he was prejudiced by the claimed lack of notice, since he does not assert that
he would have elected to stay in jail had he known that a conviction could result in the
money being kept to pay restitution. See, e.g., United States v. Baptist, 759 F.3d 690, 697
(7th Cir. 2014) (explaining that litigant asserting violation of due process cannot prevail
without establishing prejudice); Mema v. Gonzales, 474 F.3d 412, 421 (7th Cir. 2007)
(same). At all events, Tresch forfeited this argument by not raising it in the district court.
See Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir. 2008).
Tresch next contends that applying the $45,000 to the financial penalties for his
fraud convictions violated the Eighth Amendment’s proscription against excessive bail.
This contention lacks merit; a post-conviction disbursement of bond money to the crime
victims or government as judgment creditors does not violate the Eighth Amendment.
See United States v. Higgins, 987 F.2d 543, 547 (8th Cir. 1993).
Finally, Tresch insists that his ex-wife is entitled to receive a share of the $45,000,
especially given her limited income. But Tresch concedes that the money was marital
property when he posted the bond and when he moved for exoneration, 750 ILCS
5/503(b)(1), meaning that Ms. Tresch had no vested interest in the money, id. 5/503(e).
See In re Marriage of Mathis, 986 N.E.2d 1139, 1147 (Ill. 2012) (explaining that property
acquired by either spouse before dissolution of marriage is presumed to be marital
property); In re Marriage of Hubbard, 574 N.E.2d 860, 862 (Ill. 1991) (“Property rights
created by a judgment of dissolution become vested when the judgment is final . . . .”);
cf. United States v. Equere, 916 F. Supp. 450, 453 (E.D. Pa. 1996) (explaining that § 2044
would not permit government to retain security posted by third party). Illinois law
No. 15-1993 Page 3
allows one spouse to dispose of marital property, even to the detriment of the other
spouse’s future interest. See Davis v. Combes, 294 F.3d 931, 937 (7th Cir. 2002). Moreover,
the language of § 2044 suggests that, after sentencing, the district court had no discretion
to release money for Ms. Tresch’s benefit on ground of hardship, and the district judge
did not find hardship in any event. See 18 U.S.C. § 2044 (“The court shall not release any
money deposited for bond purposes after a plea or verdict of the defendant’s guilt has
been entered and before sentencing except upon a showing . . . that the defendant would
suffer an undue hardship.”).
We have considered Tresch’s motion to appoint counsel, and the motion is
denied.
AFFIRMED.