Levine, Robert M. v. United States ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1153 & 99-1236
ROBERT M. LEVINE,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:97-CV-164--Rudy Lozano, Judge.
Argued May 11, 2000--Decided July 19, 2000
Before COFFEY, EVANS and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. On January 11, 1991, a
grand jury returned a five count indictment
against the petitioner-appellant Richard M.
Levine ("Levine"), charging him in Count one with
conspiring to use interstate commerce to effect
murder for hire and in Counts two through five
with using interstate commerce to effect murder
for hire, see 18 U.S.C. sec.sec. 371, 1958. At
the conclusion of a jury trial, Levine was found
guilty on all five counts and the court sentenced
him to life imprisonment on Counts two through
five and 60 months’ imprisonment on Count one,
ordering the sentences to run concurrently and
concurrent with each other. After this court
affirmed his conviction and sentence on direct
appeal, see United States v. Levine, 5 F.3d 1100
(7th Cir. 1993), Levine filed a motion under 28
U.S.C. sec. 2255, seeking to "vacate, set aside
or correct [his] sentence," which was denied by
the district court on October 22, 1998.
Thereafter, Levine appealed and a requested
certificate of appealability was granted by the
district judge on the sole issue of whether the
court that tried Levine’s case lacked
jurisdiction due to the fact that the prosecuting
Assistant U.S. Attorney ("AUSA") resided outside
the judicial district (Northern District of
Indiana). We AFFIRM the district court’s decision.
I. BACKGROUND
For purposes of this appeal, only a cursory
description of the facts is required./1 Levine
and his brother Donald Levine were business
partners. But after his brother and sister-in-law
Marsha Levine accused him of embezzling and
misappropriating funds, Levine hired an assassin
to murder his brother, sister-in-law and nephew
Mark Levine, in order that he might gain control
of their joint business partnerships. After
months of planning and preparation, on November
9, 1989, the assassin went to Donald’s home in
Munster, Illinois. While posing as a deliveryman,
the murderer entered the house and shot and
killed Donald and Marsha with a .357 Ruger
handgun, while Mark was able to escape.
With Mark’s help, law enforcement authorities
were able to identify and arrest the killer, who
eventually agreed to cooperate in the
investigation and testify against Levine. After
evading the authorities for nearly three months
as a fugitive from justice, Levine decided to
surrender on March 4, 1991.
Following his conviction and sentencing, this
court affirmed Levine’s direct appeal. Levine
thereafter filed a motion under 28 U.S.C. sec.
2255, which the district court denied. Levine
appealed and the district court granted a
certificate of appealability on the sole issue of
whether the court that tried Levine’s case lacked
jurisdiction due to the fact that the prosecuting
AUSA resided outside the judicial district.
II. ISSUES
As identified in the certificate of
appealability, Levine argues on appeal that he
"is entitled to relief under 28 U.S.C. section
2255 because the Assistant United States Attorney
[(AUSA)] who handled his case at the trial level
did not live in the Northern District of
Indiana."
III. DISCUSSION
Levine argues that he is entitled to relief
from his conviction because the prosecuting AUSA
resided outside of the Northern District of
Indiana at the time of his trial in violation of
28 U.S.C. sec. 545(a) (1991), thus depriving the
trial court of jurisdiction over his trial and
sentencing./2 We review a district court’s
denial of a sec. 2255 petition on factual matters
for clear error, and on questions of law de novo.
See Arango-Alvarez v. United States, 134 F.3d
888, 890 (7th Cir. 1998). A section 2255 motion
must be granted if "the court was without
jurisdiction to impose such sentence." 28 U.S.C.
sec. 2255. "If the court finds that the judgment
was rendered without jurisdiction, . . . the
court shall vacate and set the judgment aside and
shall discharge the prisoner . . . ." Id.
As provided by 28 U.S.C. sec. 545(a) (1991),
"[e]ach United States attorney and assistant
United States attorney shall reside in the
district for which he is appointed."/3 The issue
before us is one of first impression within this
circuit./4 There is but one reported case that
specifically addresses the effect of a violation
of 28 U.S.C. sec. 545(a) upon a trial court’s
jurisdiction: United States v. London, 424 F.
Supp. 556 (D. Md. 1976), affirmed sub nom.,
United States v. Clerkley, 556 F.2d 709 (4th Cir.
1977). In London, the AUSA prosecuting a case
resided outside the judicial district for which
he was appointed, but the court held that a
violation of the residency statute "does not
affect the court’s jurisdiction." Id. at 566-67.
The court explained that
[i]n United States v. Mitchell, 136 F. 896 (Cr.
Ct. Or. 1905), the court under a predecessor
statute considered the claim that the United
States district attorney lived outside of the
state. In rejecting any jurisdictional claim, the
court stated:
His right to the office cannot be attacked
collaterally. Whether he is in fact ineligible to
hold the office is not material to the purposes
of this inquiry. He is a de facto officer, and is
entitled to continue in the office until it is
judicially declared by a competent tribunal, in
a proceeding for that purpose, that he has no
right to it.
136 F. at 906. See also United States v. Denton,
307 F.2d 336, 338-39 (6th Cir.), cert. denied,
371 U.S. 923, 83 S. Ct. 292, 9 L. Ed. 2d 232
(1962) (unauthorized assistance from IRS lawyers
does not deprive court of jurisdiction). The
court construes the statutory proviso relied upon
by the defendants as relating only to
governmental administration and not to
jurisdiction.
Id. at 567 (emphasis added). Likewise, in United
States v. Mitchell, the court interpreted the
predecessor statute of section 545(a) and
similarly ruled that
[t]he principle is settled that there is a
presumption from the undisturbed exercise of a
public office that the appointment to it is
valid. In the present case it is not questioned
that the court had authority to make a valid
appointment to this office, and that it did
appoint Mr. Heney, and that during the
performance by him, as district attorney, of all
the acts and things complained of, he was in the
undisturbed and unquestioned exercise of that
office. . . . [T]he rule is recognized in a long
series of decisions that ’if the office has been
lawfully established and a person exercises the
functions thereof by color of right, but whose
election or appointment thereto is illegal, his
official acts therein cannot be successfully
attacked in collateral proceedings, but in all
such proceedings will be valid and binding until
the officer is ousted by the judgment of a court
in a direct proceeding to try his title to the
office.’
136 F. 896, 906 (Cr. Ct. Or. 1905).
Here, the district judge concluded, and we
agree, that any violation of the residency
requirement "cannot be endorsed," but it does not
"amount to the type of defect [(lack of
jurisdiction)] that warrants upsetting Levine’s
conviction now under section 2255." It seems
apparent that in enacting section 545(a),
Congress was addressing an issue of government
administration rather than federal court
jurisdiction. In a 1979 memorandum opinion from
the Office of Legal Counsel for the Department of
Justice, the Executive Office for U.S. Attorneys
ruled that "[i]t appears from the legislative
history that the purpose of the residency
requirement was to ensure the availability of the
attorneys," and does not mention jurisdiction. 3
Op. Off. Legal Counsel 360, 361 (1979). The
Executive Office for U.S. Attorneys also ruled
that for purposes of the residency statute, the
term "residence" refers to "physical presence,
not to legal domicile or voting residence," and
as such, the residency requirement of section
545(a) would be satisfied if the AUSA merely
"rents an apartment in the [district] and lives
there during the workweek. It is not legally
necessary that he change his voting
registration." Id.
More importantly, the petitioner does not
dispute the fact that the prosecuting AUSA was
duly appointed by the Attorney General of the
United States and had functioned in that capacity
for a number of years./5 Levine also fails to
direct this court’s attention to, nor have we
been able to discover, any caselaw holding that
a violation of the residency statute deprives a
district court of jurisdiction. Accordingly, we
hold that 28 U.S.C. sec. 545(a) concerns a matter
of governmental administration and, while we do
not condone such practices, a violation of the
residency requirement does not deprive the
district court of jurisdiction over Levine’s
trial and sentencing. Cf. Home News Publishing
Co. v. United States, 329 F.2d 191, 193 (5th Cir.
1964) ("[T]hese provisions of the statutes are
for the benefit of the Government. . . . We
conclude, therefore, that the trial court had
jurisdiction to proceed to judgment as it
did.")./6 We also conclude that overwhelming
evidence of the petitioner’s guilt was presented
at trial by the government and the alleged
violation of section 545(a) by the prosecuting
AUSA had no impact whatsoever upon the
petitioner’s conviction and sentence. The
district judge properly rejected the petitioner’s
jurisdiction argument./7
We AFFIRM the district judge’s denial of the
petitioner’s section 2255 motion./8
/1 For further details of Levine’s crime and direct
appeal, see Levine, 5 F.3d at 1102-07.
/2 At oral argument, the government stated that the
prosecuting AUSA maintained a North Hammond
mailing address, which is within the Northern
District of Indiana. Nonetheless, for reasons
unexplained, the government does not dispute
Levine’s contention that the prosecuting AUSA
resided outside of district, but instead argues
that "even if [the AUSA] did not reside in the
Northern District of Indiana, it would not
invalidate Levine’s indictment or prosecution."
Because the government does not dispute the
AUSA’s failure to comply with the statute and the
district judge assumed the same, for purposes of
our review, we will assume that the prosecuting
AUSA did not reside within the Northern District
of Indiana.
/3 In 1994, the statute was amended to provide:
"Each assistant United States attorney shall
reside in the district for which he was appointed
or within 25 miles thereof." 28 U.S.C. sec.
545(a) (1994) (emphasis added).
/4 Levine also asserts that "this case is different
from every other case cited since in this case
the AUSA, . . . the United States Attorney’s
Office and the presiding judge were aware of his
violation, and were aware that he was acting
fraudulently." Levine, however, has presented no
evidence whatsoever in support of this bald
assertion.
/5 The record does not indicate in what year the
prosecuting AUSA in question was appointed by the
Attorney General of the United States.
/6 Further, Levine cites to cases that relate to an
alleged failure to properly appoint an assistant
U.S. attorney or alleged acts that exceed their
authority, and thus, have no applicability here.
See, e.g., United States v. Providence Journal
Co., 485 U.S. 693 (1988); United States v.
Plesinski, 912 F.2d 1033 (9th Cir. 1990); United
States v. Navarro, 959 F. Supp. 1273 (E.D. Cal.
1997).
/7 We are also of the opinion that because section
545(a) concerns a matter of government
administration, the non-resident AUSA was a "de
facto officer, and [was] entitled to continue in
the office until it is judicially declared by a
competent tribunal, in a proceeding for that
purpose, that he had no right to it." Mitchell,
136 F. at 906; see E.E.O.C. v. Sears, Roebuck and
Co., 650 F.2d 14, 17-18 (2d Cir. 1981) ("The de
facto officer doctrine was developed to protect
the public from the chaos and uncertainty that
would ensue if actions taken by individuals
apparently occupying government offices could
later be invalidated by exposing defects in the
officials’ titles. . . . The doctrine has
generally been applied to individuals who are in
possession of an office, are performing the
duties of the office, and who maintain an
appearance of right to the office.").
/8 Because Levine has failed to make "a substantial
showing of the denial of a constitutional right,"
we decline his motion to expand the certificate
of appealability to include the additional issues
raised in his briefs. See 28 U.S.C. sec.
2253(c)(2).