United States v. Lopinski, Edmund J. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2464, 00-2591
United States of America,
Plaintiff-Appellee, Cross-Appellant,
v.
Edmund J. Lopinski, Jr.,
Defendant-Appellant, Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 165-1--James B. Zagel, Judge.
Argued December 12, 2000--Decided January 8, 2001
Before Bauer, Posner, and Kanne, Circuit Judges.
Posner, Circuit Judge. After pleading guilty to
wire fraud, 18 U.S.C. sec. 1343, the defendant
was sentenced to 48 months in prison and ordered
to pay restitution of $718,000 to the victims of
his fraud. Given the scale and sophistication of
the fraud, which involved Lopinski’s looting
millions of dollars from a multi-hundred-million-
dollar corporation that he controlled, the only
ground of his appeal--that the district judge
violated Fed. R. Crim. P. 11(c)(1) by failing to
inform him at the guilty-plea hearing that the
government would have to prove that the fraud was
intentional--borders on the comic. Although there
was no written plea agreement, an "Acknowledgment
of Rights and Voluntary Plea" that Lopinski
helped prepare in collaboration with his lawyers
not only states that he understands the elements
of the offenses with which he was charged, but
recites facts that demonstrate the intentional
character of the fraud beyond any doubt. In
moving to withdraw his plea, he argued that his
lawyers had failed to dispel a misconception
created in his mind by the fact that the words
"intent to defraud" do not appear in the
Acknowledgment. The judge held a hearing at which
the lawyers testified that they had made clear to
Lopinski that if he had not intended the fraud,
he should not plead guilty. The judge believed
the lawyers and denied the motion to withdraw the
guilty plea.
Though Lopinski by his motion to withdraw his
plea and by his false testimony in support of it
(and his further false denials of intent to
defraud made at his sentencing hearing) had shown
himself unrepentant, the judge granted him a
sentencing discount for acceptance of
responsibility. U.S.S.G. sec. 3E1.1. The
government, cross-appealing the sentence, argues
that the judge committed a clear error in finding
that Lopinski had accepted responsibility for his
misconduct.
Lopinski did plead guilty, and that normally is
a necessary condition for the acceptance of
responsibility discount; but it is not
sufficient. sec. 3E1.1 Application Note 3; United
States v. Ewing, 129 F.3d 430, 435-36 (7th Cir.
1997). The purpose of the discount is not merely
to induce guilty pleas, sparing the government
the expense of a trial and the risk of acquittal,
valid benefits that can justify the quid pro quo
of a reduced sentence, United States v. Bonanno,
146 F.3d 502, 512-13 (7th Cir. 1998); United
States v. Beserra, 967 F.2d 254, 256 (7th Cir.
1992); it is also to reflect the reduced risk of
recidivism of a defendant who by facing up to the
wrongfulness of his conduct takes the first step
to better behavior in the future. United States
v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999);
United States v. Bomski, 125 F.3d 1115, 1119 (7th
Cir. 1997); United States v. Mogel, 956 F.2d
1555, 1560 (11th Cir. 1992). The cases indicate
that both purposes must be present for the
discount to be proper. United States v. Grimm,
170 F.3d 760, 766 (7th Cir. 1999); United States
v. Pryor, 32 F.3d 1192, 1195 (7th Cir. 1994). The
merely strategic guilty plea, which may reflect
nothing more edifying than a certainty of
conviction if the defendant invokes his right to
a trial, does not augur well for his future
behavior. Against this it can be argued that an
inquest on the sincerity of a defendant’s
repentance neither is feasible, nor should be
necessary to earn the discount. Most guilty pleas
are strategic, as are most decisions to turn
state’s evidence. Why rule out the possibility of
rewarding such a decision? A guilty plea confers
benefits on prosecutors (and thus on society) by
freeing up time that they can use to bring
additional prosecutions. It relieves pressure on
the courts as well. And the defendant trades
higher certainty of punishment for a lower level
of punishment. If district judges must insist on
sincerity--a real change of heart--strategic
pleas will be no good to defendants, who then
will go to trial.
But these ruminations cannot help Lopinski, who
forfeits his acceptance of responsibility discount
not because of the state of his heart but because
he tried to have things both ways--to have a chance
at acquittal plus the discount for foregoing that
chance, and because he used up a lot of
prosecutorial time by the motion to withdraw the
plea (surely as complex as many a trial) and his
appeal.
Mr. Lopinski, to put it as charitably as
possible, is in the condition that psychologists
call "denial"; he is also a liar. Far from
acknowledging his violation of the wire-fraud
statute, he has denied, beginning with his motion
to vacate his guilty plea and continuing at his
sentencing hearing after the motion was denied,
that he intended to defraud anyone; and without
such intent he cannot be guilty. Given the nature
of his conduct, the denial is unbelievable, and
he further lied about what his lawyers told him
when he decided to plead guilty. The judge gave
him a sentencing bonus for obstruction of justice
by repeatedly perjuring himself at the post-plea
hearings, and Lopinski does not challenge the
ruling. He not only is not repentant, which we
have suggested should perhaps not be a condition
precedent for the grant of the acceptance of
responsibility (despite the language of the
cases); he is brazen or deluded.
So how could the judge have thought him
deserving of an acceptance of responsibility
discount? Because the judge believed that
"ultimately, somewhere in his [Lopinski’s] psyche
he has the appropriate mental state," namely the
acceptance of "some form of moral responsibility"
(emphasis added). What the judge seems to have
meant by these unelaborated remarks, in light of
Lopinski’s own plea for mercy that preceded them,
is that Lopinski, while refusing to acknowledge
that he had intended to defraud anybody,
expressed what the judge considered genuine
regret for the harm that he had done, that is,
the losses he had caused by his conduct. And it
is true if paradoxical that people can feel
morally responsible for conduct that is (or that
they think is) blameless in the sense of being
wholly innocent in intent, as in the case of
Oedipus, who not only did not know, but had no
reason to know, that he had killed his father and
married his mother. So the judge may have been
correct in his conclusion, indeed insightful into
the complex character of moral responsibility,
given his premises. But we do not think that the
Sentencing Commission intended acceptance of
responsibility in this sense, cf. United States
v. Beserra, supra, 967 F.2d at 256; United States
v. Mohrbacher, 182 F.3d 1041, 1052 (9th Cir.
1999), and so we conclude that the district
judge’s error was one of law rather than one of
application of law to fact. Acceptance of
responsibility is not regret for the consequences
of innocent mistakes, but recognition that one
has violated the law. If Lopinski does not
realize that he committed fraud, he is quite
likely to repeat his fraudulent activity when he
is released from prison, although he may endeavor
to minimize the harm to others, for example by
preying entirely on banks and other large
institutions rather than on particularly
vulnerable individuals. But the more important
point is that, as we have already suggested, the
law cannot tolerate a situation in which a
criminal defendant plays heads I win tails you
lose by combining a perjurious attack on his
guilty plea with an appeal for mercy if the
attack fails. See United States v. Stewart,
supra, 198 F.3d at 987; United States v.
Martinez, 169 F.3d 1049, 1056 (7th Cir. 1999);
United States v. Champion, No. 00-2031, 2000 WL
1800260, at *4 (2d Cir. Dec. 8, 2000) (per
curiam); United States v. Patron-Montano, 223
F.3d 1184, 1191 (10th Cir. 2000).
The judgment is vacated insofar as the sentence
reflects an adjustment for acceptance of
responsibility, and the case is remanded with
instructions to resentence the defendant without
that adjustment. In all other respects the
judgment is affirmed.
Affirmed in Part, Vacated in Part,
and Remanded with Instructions.