United States v. Boyle, John E. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4204
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN E. BOYLE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04-CR-86-2—James F. Holderman, Chief Judge.
____________
ARGUED MARCH 30, 2007—DECIDED MAY 3, 2007
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Before EASTERBROOK, Chief Judge, and BAUER and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. John Boyle is no stranger to
corrupt Chicago politics. He was convicted in 1992 of
embezzling millions of dollars in change—that’s in
change, not and change—from the state of Illinois
while serving as president of the Public Armored Car
Company, which retrieved, transported, and stored quar-
ters and other coins for the Illinois Tollway Authority.
That earned him a federal prison sentence and a nick-
name straight out of Goodfellas: John “Quarters” Boyle.
See United States v. Boyle, 10 F.3d 485 (7th Cir. 1993).
Despite this significant blemish on his record, Boyle
managed in 1997 to land a job with the City of Chicago’s
2 No. 05-4204
Department of Transportation, where he became a
central player in the Hired Truck Program, in which the
city used private trucking firms as contractors to perform
city work. An exposé by the Chicago Sun-Times from 2003
to 2004 revealed that the program had ties to the Mafia,
involved payments to companies in exchange for little to
no work, and provided lucrative contracts in return for
bribes and political contributions. Although he was only
an engineer in the DOT, Boyle was instrumental in chan-
neling work to trucking firms in return for bribes.
After a federal investigation, Boyle, like many others,
was indicted for multiple counts of extortion, mail fraud,
bribery, obstruction of justice, and filing false income tax
returns. He held out while colleagues in the city pled
guilty, and finally, one month before trial, pled to one
count of filing a false income tax return and one count of
mail fraud. He did not agree to a written plea agreement,
which would have entailed making a detailed factual
statement of his misbehavior. The district court sen-
tenced him to 84 months’ imprisonment, three years’
supervised release, a $200,000 forfeiture judgment, and
a $100,000 fine. He appeals, challenging the district
court’s refusal to reduce his sentence under U.S.S.G.
§ 3E1.1 for acceptance of responsibility. The government
says the appeal “approaches the frivolous.” We affirm the
sentence of the district court because acceptance points
are inappropriate in light of Boyle’s sentencing enhance-
ment for obstruction of justice.
The enhancement under U.S.S.G. § 3C1.1 was sought
on five separate grounds. First, when Boyle learned that
the FBI was investigating the Hired Truck Program he
told a truck company owner (who was secretly cooperating
with the government) to lie to FBI agents if he was
questioned. Second, several days later, Boyle told the
same individual to shred evidence of earlier bribes. Third,
after his arrest Boyle lied to pretrial services by falsely
No. 05-4204 3
filling out a financial affidavit, representing that he did
not have any money in his checking account when it
actually contained over $11,000 and he had made with-
drawals and deposits totaling nearly $90,000 in the weeks
before his arrest. Fourth, Boyle repeated this lie to the
magistrate judge in a financial affidavit. And fifth, he
falsely told the probation officer that he had no real estate
holdings; when caught, he explained that he only held
an interest in a number of properties and did not own
them outright.
The Guidelines specifically state that an obstruction
enhancement “ordinarily indicates that the defendant has
not accepted responsibility for his criminal conduct.” Id.
§ 3E1.1 cmt. n.4. “There may, however, be extraordinary
cases in which adjustments under both §§ 3C1.1 and 3E1.1
may apply.” Id. For instance, in United States v.
Lallemand, 989 F.2d 936, 938 (7th Cir. 1993), a reduction
for acceptance of responsibility was appropriate where
the defendant, an extortionist who had told an associate
to destroy an extortionate videotape should the defendant
be apprehended, got caught and immediately cooperated
with the FBI, phoning his friend to tell him not to destroy
the tape. Boyle contends that his is another of those
rare cases in which an enhancement for obstruction and
a reduction for acceptance of responsibility can coexist.
The district court was not persuaded, and neither are we.
Boyle notes that he pled guilty, thereby saving the
government the time and expense of a trial; that he
admitted to directing the trucking boss to lie to the FBI
and shred documents; and that he told prosecutors
how much he had personally taken in bribes (over
$200,000 in cash, steaks, gift cards, and contributions to
his politicians of choice). But he also proudly and repeat-
edly boasted in open court that he would not rat on his
4 No. 05-4204
friends;1 lied to pretrial services, the magistrate judge, and
the probation officer; pled to a narrow set of charges,
refusing to sign an extensive factual summary of his
misdeeds; and declined to tell prosecutors who had paid
him the bribes or how he spent the money.
Some of these points matter more than others. For
instance, merely pleading guilty does not entitle Boyle to
acceptance points, U.S.S.G. § 3E1.1 cmt. n.3; United States
v. Jones, 52 F.3d 697, 701 (7th Cir. 1995); as the commen-
tary to the Guidelines and our caselaw make clear, this
benefit is reserved for those who show contrition and
remorse by giving an honest and full account of their
offense conduct. See United States v. Harrison, 431 F.3d
1007, 1013 (7th Cir. 2005); United States v. Frykholm, 267
F.3d 604, 611-12 (7th Cir. 2001). And pleading guilty
eventually, rather than immediately, is specifically listed
in the Guidelines as a strike against acceptance points, for
it does not fully spare the government the burden of
pretrial preparation and gives the impression of holding
out for a deal rather than cooperating from the outset. See
U.S.S.G. § 3E1.1 app. n.1(h); United States v. Galbraith,
200 F.3d 1006, 1016 (7th Cir. 2000).
On the other hand, helping the government catch other
lawbreakers is not a prerequisite for acceptance of respon-
sibility since another Guideline, U.S.S.G. § 5K1.1, provides
a reduction for that. See United States v. Escobar-Mejia,
915 F.2d 1152, 1153 (7th Cir. 1990). But where refusing
to tell on others means giving the government less than a
full and complete accounting of one’s own offense con-
duct, then granting acceptance points would be inappro-
1
This point is reflected in the record and was also widely
commented upon by the Chicago press. See Matt O’Connor,
“Boyle Won’t Cooperate, Receives 7-Year Prison Term,” Chicago
Tribune, Aug. 13, 2005, at C12.
No. 05-4204 5
priate. See id. at 1154; United States v. Larkin, 171 F.3d
556, 558-59 (7th Cir. 1999); United States v. Hammick, 36
F.3d 594, 599-600 (7th Cir. 1994). For instance, in Larkin,
a prison drug dealer cooperated and pled guilty but re-
fused to tell prosecutors who had supplied him with drugs.
We affirmed the district court’s denial of acceptance of
responsibility because the defendant was not completely
forthright about the methods he used to commit his
crime. Larkin, 171 F.3d at 558-59.
Just so here. By refusing to say who had paid the bribes,
Boyle failed to provide “a candid and full unraveling of
the circumstances surrounding the offense of conviction.”
Larkin, 171 F.3d at 558 (internal quotation omitted). This
is especially so in light of the fact that he was convicted of
using the mails to facilitate bribery, which by its nature
is a crime involving multiple people. See 18 U.S.C. § 666;
United States v. Sager, 49 F.2d 725, 727-28 (2d Cir. 1931).
Stonewalling may earn Boyle respect in some quarters,
but it will not win him a shorter prison sentence. In
addition, Boyle didn’t help his cause by agreeing to only
one limited proffer describing his bad deeds, for we stated
in United States v. Carroll, 346 F.3d 744, 750 (7th Cir.
2003), that “numerous, intensive proffer sessions” can help
a defendant secure acceptance of responsibility. In short,
given Boyle’s repeated and brazen obstruction of justice,
his limited and grudging acceptance of his wrongdoing
falls far short of the type of extraordinary acceptance
of responsibility that warrants a reduced sentence.
Boyle raises two other arguments—that the obstruction
enhancement was improper, and that his sentence is
unreasonable—but he did not develop the first with any
argumentation or supporting authority, and he did not
bring up the second until his reply brief. Both contentions
are therefore forfeited. See R.J. Reynolds Tobacco Co. v.
Cigarettes Cheaper!, 462 F.3d 690, 701 (7th Cir. 2006); J.S.
6 No. 05-4204
Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1035 n.2
(7th Cir. 2005).
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-07