Transcript Of William Hanhardt Plea Hearing 6m2q55

Case: 09-2248

Document: 7-2

Filed: 05/27/2009

Pages: 278 APPEAL, MASON, TERMED

United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 3.2.2 (Chicago) CIVIL DOCKET FOR CASE #: 1:07−cv−02542 Internal Use Only United States of America v. Hanhardt Assigned to: Honorable Charles R. Norgle, Sr Case in other court: 09−02248 Cause: 28:2255 Remedies on motion attacking sentence

Date Filed: 05/07/2007 Date Terminated: 02/09/2009 Jury Demand: None Nature of Suit: 510 Prisoner: Vacate Sentence Jurisdiction: U.S. Government Defendant

Date Filed

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Page Docket Text

05/07/2007

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05/07/2007

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39 CIVIL Cover Sheet. (mjc, ) (Entered: 05/08/2007)

05/09/2007

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40 MINUTE entry before Judge Charles R. Norgle Sr.: The Government shall provide the court with a complete transcript of Hanhardt's 10/25/01 change−of−plea hearing on or before 5/25/07. The Government shall file a response to Hanhardt's motion to vacate, set aside, or correct sentence on or before 6/15/07. Hanhardt shall file a reply on or befor 6/29/07.Mailed notice (mjc, ) (Entered: 05/14/2007)

06/13/2007

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41 MINUTE entry before Judge Charles R. Norgle Sr.: The time for filing the government's response to defendant William Hanhardt's motion to vacate, set aside, or correct his sentence is extended to or before 7/16/07.Mailed notice (mjc, ) (Entered: 06/18/2007)

06/13/2007

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42 ORDER Signed by Judge Charles R. Norgle Sr. on 6/13/2007.(mjc, ) (Entered: 06/18/2007)

07/12/2007

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43 MINUTE entry before Judge Charles R. Norgle Sr.: Enter agreed order.Mailed notice (mjc, ) (Entered: 07/17/2007)

07/12/2007

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44 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 7/12/2007.(mjc, ) (Entered: 07/17/2007)

08/10/2007

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45 MINUTE entry before Judge Charles R. Norgle Sr.: Enter agreed order.Mailed notice (mjc, ) (Entered: 08/14/2007)

08/10/2007

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46 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 8/10/2007.(mjc, ) (Entered: 08/14/2007)

09/10/2007

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47 MOTION by Plaintiff United States of America to dismiss Petitioner William Hanhardt's Motion to Vacate Conviction and Sentence Pursuant to 28 U.S.C. Section 2255. (Attachments: # 1 Exhibit)(Podliska, John) (Entered: 09/10/2007)

09/24/2007

12

78 MINUTE entry before Judge Charles R. Norgle Sr.: Enter agreed order.Mailed notice (mjc, ) (Entered: 09/27/2007)

4 MOTION to Vacate, Set Aside or Correct Sentence (2255)and 1 copy filed by William Hanhardt. (00cr853−1) (mjc, ) (Entered: 05/08/2007)

Case: 09-2248

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09/24/2007

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79 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 9/24/2007.(mjc, ) (Entered: 09/27/2007)

10/18/2007

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80 MINUTE entry before Judge Charles R. Norgle Sr.: Enter agreed order.Mailed notice (mjc, ) (Entered: 10/22/2007)

10/18/2007

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81 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 10/18/2007.(mjc, ) (Entered: 10/22/2007)

10/29/2007

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82 MINUTE entry before Judge Charles R. Norgle Sr.: Enter agreed order.Mailed notice (mjc, ) (Entered: 11/02/2007)

10/29/2007

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83 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 10/29/2007.(mjc, ) (Entered: 11/02/2007)

11/05/2007

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84 REPLY by Defendant William Hanhardt Reply to Government's Motion to Dismiss (Attachments: # 1 Exhibit Patient Progress Notes# 2 Exhibit Affidavit of Angeline Hanhardt# 3 Exhibit Transcript pages 45 46# 4 Exhibit Affidavit of Joene Hanhardt# 5 Exhibit Group Exhibit E − Letters)(Steinback, Jeffrey) (Entered: 11/05/2007)

11/09/2007

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128 MINUTE entry before Judge Charles R. Norgle Sr.: On 11/5/07, movant William Hanhardt submitted his Reply to the Government's motion to dismiss. Attached to this Reply are, inter alia, affidavits of Hanhardt's wife and daughter. The government is granted leave to file a Sur−Reply addressing the allegations contained within these affidavits on or before 11/30/07. After examining the government's submission, the court with a transcript of Hanhardt's sentencing hearing on or before 11/30/07.Mailed notice (mjc, ) (Entered: 11/14/2007)

11/30/2007

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129 MINUTE entry before Judge Charles R. Norgle Sr.: Enter agreed order.Mailed notice (mjc, ) (Entered: 12/06/2007)

11/30/2007

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130 AGREED ORDER Signed by Judge Charles R. Norgle Sr. on 11/30/2007.(mjc, ) (Entered: 12/06/2007)

12/10/2007

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131 SUR−REPLY by Plaintiff United States of America to reply, 18 Government's Sur−Reply to Defendant's Reply to Government's Motion to Dismiss or to Deny Petition (Attachments: # 1 Attachment Tr. 10/25/01 −− 1−30# 2 Attachment Tr. 10/25/01 −− 31−66)(Podliska, John) (Entered: 12/10/2007)

12/12/2007

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215 MINUTE entry before Judge Charles R. Norgle Sr.: On 11/9/07, the court ordered the government to file a sur−reply addressing various allegations made by Hanhardt, and to provide the court with a transcript of Hanhardt's sentencing hearing. On 12/10/07, the government provided the requested sur−reply. However, this sur−reply was accompanied by a transcript of Hanhardt's change of plea hearing. The government shall provide the court with a transcript of Hanhardt's sentencing hearing on or before 1/11/08. After examining this submission, the court will set the matter for status.Mailed notice (mjc, ) (Entered: 12/18/2007)

11/12/2008

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216 MINUTE entry before the Honorable Charles R. Norgle, Sr: On December 12, 2007 the Court ordered the government to provide a transcript of Hanhardt's sentencing hearing by January 11, 2008. The government did not respond, and the docket reflects that the matter has sat dormant since the Court's last order. The parties shall therefore appear for status on December 12, 2008 regarding all

Case: 09-2248

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outstanding issues, including the need for an evidentiary hearing and the issuance of any writs or subpoenas for all necessary witnesses. It is so ordered.Mailed notice (mjc, ) (Entered: 11/17/2008) 11/17/2008

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217 MINUTE entry before the Honorable Charles R. Norgle, Sr: The Court acknowledges receipt of the transcript of Hanhardt's sentencing hearing, which the government provided. The matter remains set for a general status on December 12, 2008.Telephoned notice (mjc, ) (Entered: 11/18/2008)

12/17/2008

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218 MINUTE entry before the Honorable Charles R. Norgle, Sr: Status hearing set for 12/19/2008 is stricken. Counsel shall file a written status report on or before 1/21/2009.Telephoned/mailed notice (ewf, ) (Entered: 12/17/2008)

01/21/2009

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219 RESPONSE by Plaintiff United States of America to text entry,, 24 Government's Status Report (Podliska, John) (Entered: 01/21/2009)

01/21/2009

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223 MINUTE entry before the Honorable Charles R. Norgle, Sr: Defendant's time to file a written status report is extended to and until 1/28/2009. (ewf, ) (Entered: 01/21/2009)

01/28/2009

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224 RESPONSE by Defendant William Hanhardt Defendant's Status Report (Steinback, Jeffrey) (Entered: 01/28/2009)

02/09/2009

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228 MINUTE entry before the Honorable Charles R. Norgle, Sr: William Hanhardt's motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C. 2255 is denied. The government's Motion to dismiss 11 is granted. Case terminated. [For further detail see separate order(s)]. Mailed notices (gcy, ) (Entered: 02/11/2009)

02/09/2009

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229 Opinion and Order Signed by the Honorable Charles R. Norgle, Sr on 2/9/2009:(gcy, ) (Entered: 02/11/2009)

04/10/2009

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260 APPLICATION for a Certificate of Appealability construed as NOTICE of appeal per USCA by William Hanhardt regarding orders 32 , 33 . (Fee Due) (gej, ) (Entered: 04/29/2009)

05/06/2009

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278 MINUTE entry before the Honorable Charles R. Norgle, Sr: Hanhardt's application for certificate of appealability 34 is denied. [For further details see minute order.] Mailed notice (mjc, ) (Entered: 05/11/2009)

05/07/2009

37

277 (Court only) RECEIPT regarding payment of (Notice of Appeal) filing fee paid on 5/7/2009 in the amount of $455.00, receipt number 4624021414. (mjc, ) (Entered: 05/08/2009)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA v. WILLIAM HANHARDT

) ) ) ) )

No. 07 CV 2542 00 CR 853-1 Judge Charles R. Norgle, Sr.

GOVERNMENT’S MOTION TO DISMISS PETITIONER WILLIAM HANHARDT’S MOTION TO VACATE CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2255

The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, United States Attorney for the Northern District of Illinois, moves this Court pursuant to Rule 4 (b) of the Rules Governing Section 2255 Proceedings to dismiss petitioner William Hanhardt’s motion to vacate his conviction or correct his sentence pursuant to 28 U.S.C. § 2255 for failure to state a claim upon which relief can be granted. In thereof the government states as follows: William Hanhardt moves this Court, pursuant to 28 U.S.C. §2255, to vacate his conviction for racketeering conspiracy and conspiracy to transport stolen property in interstate commerce in violation of 18 U.S.C. §§ 1962(d) and 371, or , in the alternative to modify his sentence by vacating the finding that Hanhardt was responsible for the 1995 armed robbery of jewelry salesman Esagh Kashimallak, a crime of violence that, under Bureau of Prisons regulations, prohibits him from serving his 141-month sentence at any facility classified as less than a minimum security facility. Hanhardt alleges in his §2255 petition that his retained counsel provided ineffective assistance of counsel.

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STATEMENT OF FACTS The Indictment On November 16, 2000, a superseding indictment was returned charging defendants Hanhardt, Basinski, Schiro, DeStefano, and Altobello with racketeering conspiracy in violation of 18 U.S.C. § 1962(d), and charging Hanhardt, Basinski, Schiro, and Brown with conspiracy to transport stolen property in interstate commerce in violation of 18 U.S.C. § 371. The indictment also contained a forfeiture allegation seeking forfeiture of $4,845,000, miscellaneous jewelry, gems and watches, and certain real estate of Hanhardt and DeStefano. R56.1 The Offenses Count One Beginning in or about 1980 and continuing to in or about April 1998, a criminal enterprise consisting of William A. Hanhardt, Joseph N. Basinski, Paul J. Schiro, Sam DeStefano, Guy Altobello and others, including James D'Antonio until his death in 1993 and Robert Paul, since deceased, engaged in an organized nationwide scheme to identify and target for theft more than 100 jewelry salespersons traveling in interstate commerce with

1

References in this filing are as follows: R. - District Court Record Tr. - Transcript of District Court Proceedings GX - Government Exhibit in District Court HPSR - Hanhardt’s Presentence Report CGV - HPSR - Consolidated Government Version GSSS - Government’s Supplemental Sentencing Submission Santiago - Santiago Proffer 2

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lines of wholesale jewelry valued in excess of $40 million. Over a period of more than fifteen years, the conspirators committed at least nine jewelry thefts totaling in excess of $5 million in at least seven states, including Arizona, California, Michigan, Minnesota, Ohio, Texas, and Wisconsin. R. 211 at 2-5. Hanhardt was the leader of the enterprise. He supervised Basinski and together they directed the activities of other conspirators. Hanhardt directed the conspirators in gathering information on potential jewelry theft targets and in the surveillance of numerous such individuals to determine the best time and place to steal jewelry from cars and hotels. He utilized certain Chicago Police Department ("D") officers to do database searches of law enforcement computers to obtain information concerning jewelry salespersons. He caused a private investigator to conduct database searches to gather personal identifying information on targets. Hanhardt personally participated in the actual theft of jewelry. R. 211 at 3. While he was a sworn law enforcement officer, Hanhardt, who retired from the Chicago Police Department in 1986, committed at least one theft with Basinski and other conspirators, the October 8, 1984 theft of 180 Baume & Mercier watches valued at approximately $310,000 from Paul Lachterman in Glendale, Wisconsin. R. 211 at 18; Tr. 10/19/01 at 5. Basinski identified potential targets by doing physical surveillances, making telephone calls, making database searches, recruiting additional for the organization, and fencing stolen jewelry. Basinski directed and assisted in directing the activities of other conspirators, including directing their activities on physical surveillances of locations and

3

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individuals and in the actual theft of jewelry. Basinski maintained information collected on targets, including National Crime Information Center data illegally obtained by Hanhardt from the D. Basinski also maintained equipment used to surveill jewelers and steal from them. Basinski personally participated in the actual theft of jewelry. R. 211 at 3-4. Altobello provided other of the enterprise with information about jewelry salespersons that conducted business with Altobello Jewelers, Inc., a Chicago area retail jewelry store, identifying such persons and providing information about the most opportune occasion to steal from them. R. 211 at 4. The conspirators, including Basinski, received information from Altobello concerning the identity of traveling jewelry salespersons, the nature and quality of their jewelry, and their travel schedules, including Eshagh Kashimallak and a Yahalom salesman in 1993; Kashimallak in 1995; and Mikan, ESY, and Yahalom salesmen in 1996. CGV at 33. The conspirators, including Basinski, obtained, maintained and used various tools and instrumentalities in order to assist in gaining access to vehicles, vehicle trunks, vehicle ignitions, hotel rooms, and safety deposit boxes and to avoid detection or to escape law enforcement, including locksmith tools, keymaking machines, keys, key blanks, lock picks, "slim jims," smoke grenades, key cutting dies, evasion devices, laser, cam set, bullet proof vests, and listening devices. During the conspiracy, D'Antonio maintained for the use of the conspirators at least three loaded weapons and a device consisting of light bulb sized flash bulbs used to temporarily blind victims. R. 211 at 9.

4

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The conspirators, including Hanhardt and Basinski, obtained, created, and maintained hundreds of documents with personal information on more than 100 individuals involved in the jewelry trade, all for the purpose of stalking and stealing jewelry from those persons. The information included: names; addresses; telephone numbers; bank information; employer information; credit reports; NCIC printouts; car rental agreements; auto VIN numbers; license plate numbers; drivers license information; dates of birth; non-published home telephone numbers; frequent flyer numbers and mileage records; surveillance reports; maps with locations of homes; documents taken from the jewelers trash; and travel itineraries and analyses. R. 211 at 12. Count Two In October 1996, William Brown ed Hanhardt, Basinski, and Schiro in a scheme to steal the $500,000 line of Baume and Mercier watches of Illinois traveling jewelry salesman Paul Lachterman as he travelled in Wisconsin and Indiana and to transport the stolen watches back to Illinois. Hanhardt, Basinski, and other conspirators stole Lachterman’s watch line in 1984 and in 1996 Hanhardt and Basinski targeted Lachterman again. From April through September 1996, Hanhardt and Basinski stalked Lachterman, gathering information about him and obtaining a duplicate key to the truck of his car. Then Basinski ed Schiro in Phoenix. Schiro drove to Chicago to assist in the theft and brought Brown with him. On October 1, 1996, the four conspirators followed Lachterman in two cars as he drove to Wisconsin and met with customers. On October 2, 1996, they

5

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follow him again as he drove to Indiana. While Lachterman was in a restaurant and while the others acted as lookouts, Basinski used the duplicate key to open the trunk of Lachterman’s car and removed a case containing $58,000 in watches provided by the FBI. The conspirators left with the watches, but returned a short time later and put the watches back in the trunk. Brown did not know what his share was to have been, because “you really never know” until the theft is done, but he expected to receive approximately $3000 for his role. R. 211 at 1318; Tr. 5/7/02 at 33-34. Pre-trial Proceedings and Disposition On January 10, 2001, all defendants filed a motion seeking recusal of the district judge. R90. That motion was denied. R112. United States v. Hanhardt, 134 F.Supp.2d 972 (N.D. Ill. 2001). The defendants raised numerous additional pretrial issues and this Court issued six additional written decisions addressing many of them. United States v. Hanhardt, 151 F.Supp.2d 971, 155 F.Supp.2d 840, 155 F.Supp.2d 861, 156 F.Supp.2d 988, 157 F.Supp.2d 978, 173 F.Supp.2d 801 (N.D. Ill. 2001)(addressing suppression of briefcase evidence, severance, continuance (2), suppression of wiretap evidence, re-release pending sentencing, respectively). All defendants plead guilty to the indictment as follows: DeStefano, by written plea agreement on August 24, 2001 (Tr. 8/24/01); Basinski, by written plea agreement, August 31, 2001( Tr. 8/31/01); Altobello, by blind plea, September 26, 2001 (Tr. 9/26/01); Schiro, by plea agreement, October 11, 2001 (Tr. 5/13/02); Hanhardt, by blind plea, October 25,

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2001 (Tr. 10/25/01); Brown, who had been a fugitive until his arrest on February 6, 2002 (Tr. 7/31/02 at 100), by written plea agreement, May 7, 2002 (Tr. 5/7/02). The defendants were sentenced to imprisonment as follows: Hanhardt on May 2, 2002 to 188 months incarceration (Tr. 5/2/02 at 726-27)2 ; Basinski on May 6, 2002, to 108 months (Tr. 5/6/02 at 62-63); Schiro on May 13, 2002, to 65 months (Tr. 5/13/02 at 19); DeStefano on May 20, 2002 to 60 months (Tr. 5/20/02 at 14); Altobello on May 28, 2002, to 65 months (Tr. 5/28/02 at 194); and Brown on July 31, 2002, to 25 months (Tr. 7/31/02 at 52). Hanhardt’s Guilty Plea At Hanhardt’s change of plea proceedings on October 25, 2001, Hanhardt was represented by his lead counsel, Thomas P. Sullivan, and by William A. Von Hoene. Under oath, Hanhardt told this Court that he had retained Thomas Sullivan to represent him on December 12, 2000, that he had spoken in person with “Mr. Sullivan and his staff a minimum of once a week in person, telephonically, several times more than that.” Tr. 10/25/01 at 8-9. Hanhardt told this Court that in referring to Mr. Sullivan’s “staff,” he was referring to Mr. Von Hoene and “several other attorneys that have worked with Mr. Sullivan and Mr. Von Hoene” at the law firm of Jenner and Block. Id. Hanhardt entered a blind plea to the indictment. As part of that plea, Mr. Von Hoene read into the record a statement of facts of Hanhardt’s criminal conduct. Tr. 10/25/01 at 1013. Under oath, Hanhardt acknowledged that what Mr. Von Hoene had told this Court was

2

On remand, Hanhardt was re-sentenced to 141 months. R. 409. 7

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what happened and what occurred and that those were the facts upon which he was offering to plead guilty to both counts of the indictment. Id. at 14.3 All counsel for both Hanhardt and the government stated that the facts as related by Mr. Von Hoene were legally adequate to a plea of guilty to the indictment. Id. at 13-14. The government then proceeded to state a more detailed description of what the government’s evidence would have shown had the case gone to trial. Id. at 16-39. After the government had recited its version of what the evidence would have shown had the case gone to trial, Hanhardt told this Court that, “I don’t agree with everything he [AUSA Scully] said” and that he was not pleading guilty to Count One “in its entirety.” Tr. 10/25/01 at 41. Counsel for the parties advised this Court that the parties had differing views of the details of the evidence and that those would be addressed at the sentencing hearing. Id. at 39-42. The Court and Hanhardt had the following exchange: THE COURT: Are you pleading guilty because you are guilty [?] THE DEFENDANT: Yes sir, I am. THE COURT: And you have read and discussed this superseding indictment with your attorneys? THE DEFENDANT: Yes, sir, I have. THE COURT: And your plea of guilty is to the indictment, is that right? THE DEFENDANT: Yes, sir.

3

At the conclusion of the proceeding, Hanhardt reiterated that he agreed with the factual basis as read by Mr. Von Hoene. Id. at 58. 8

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Tr. 10/25/01 at 41-42. At Mr. Sullivan’s request, the Court paused briefly and Hanhardt’s counsel consulted with him. Id. at 42. Mr. Sullivan then reiterated that Hanhardt was pleading guilty to Count One, but, as he had said, he (Hanhardt) did not agree with all the details that the government had stated. Id. At this stage of the change-of-plea colloquy the Court inquired regarding the defendant’s discovery access to the government’s evidence. Tr. 10/25/01 at 48. The government advised the Court that it had produced to the defense approximately 30,000 pieces of paper, hundreds of telephone recordings, video recordings, photographs of physical evidence, and a 150 page Santiago proffer. Id. at 40, 48.

Defense counsel and

Hanhardt acknowledged that they had received the discovery and that Hanhardt had discussed the materials with his counsel and had personally “reviewed a good deal of it himself.” Id. at 49. The Court engaged in extensive discussion with Hanhardt regarding Hanhardt’s understanding of the maximum possible sentence, the Guidelines, his rights had he gone to trial, his waiver of those rights by pleading guilty, his intention to enter a blind plea to the indictment, one agreement with the government which involved a monetary payment to the government in lieu of the forfeiture of the family residence, and the extent to which he had discussed all of those matters with his attorneys. Tr. 10/25/01 at 41-48, 50-57. Hanhardt repeatedly stated under oath that he understood, that he had discussed the matters with his lawyers, that he had no further questions, and that he did not need any additional time to talk

9

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with his lawyers before the Court accepted his plea of guilty. Id. at 41, 44, 45, 47, 48, 50, 52, 53, 55, 56, 57. As the Court accepted Hanhardt’s plea of guilty, the Court inquired, “Is there anything that you wish to say about your attorney or attorneys in this case?’ Id. at 57. Hanhardt responded, “No, sir.” Id. At various stages of the proceedings, the Court inquired regarding Hanhardt’s present physical and emotional condition, the medications he was taking and even what he had had for breakfast. Under oath Hanhardt told the Court that he knew what he was doing, that he was clear minded, that his plea of guilty was voluntary and that he was not being coerced or forced or pressured to plead guilty. Id. at 49-50. Hanhardt repeatedly stated that he was pleading guilty because he was in fact guilty. Id. at 41, 50, 57. At the conclusion of the proceedings, the government told the Court that it had reviewed the medical records of Hanhardt’s hospitalization the previous week and had found nothing that raised any issue of Hanhardt’s competency and fitness to enter a plea of guilty. Tr. 10/25/01 at 58-59. The defense agree and added that Mr. Von Hoene had met with Hanhardt four times since he had been taken into custody the week before, that Mr. Von Hoene and Mr. Sullivan had both met with Hanhardt that morning, and that the defense was not raising any issue of competency. Id. at 59-60. Mr. Sullivan told the Court, “[I]t is my opinion that he [Hanhardt] is fully alert, he knows what he is doing, and he is quite capable of making decisions on his own behalf.” Id. at 59. The Court asked, “Are you personally

10

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raising any issue with respect to your competency?” And Hanhardt responded, “No, sir. I am not.” Id. at 61. DISCUSSION Claim of Ineffective Assistance of Counsel In order to establish a claim of ineffective counsel a defendant must satisfy the twoprong test of Strickland v. Washington, 466 U.S. 688, 688-94 (1984). First, the defendant must show that his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. Richardson v. United States, 379 F.3d 485, 487 (7 th Cir. 2004). The errors complained of must be so serious that counsel did not function as “counsel” as guaranteed by the Sixth Amendment. United States v. Holman, 314 F.3d 837, 839 (7 th Cir. 2002). Second, the defendant must prove the errors were prejudicial. Cooper v. United States, 378 F.3d 638, 640-1 (7 th Cir. 2004). Prejudice is established by showing “there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Benefiel v. Davis, 357 F.3d 655, 661 (7 th Cir. 2004). Counsel is presumed to have been effective, and a defendant bears a heavy burden to establish otherwise. United States v. Malone, 484 F.3d 916, 919 (7 th Cir. 2007). The presumption in favor of counsel’s effectiveness is especially strong in the context of a guilty plea where the petitioner has openly itted his guilt before the court. See Hill v. Lockhart, 474 U. S. 52, 58 (1985). A defendant must allege and prove that “ but for counsel’s errors,

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he would not have pleaded guilty and would have insisted on going to trial.” Richardson at 487-88 (Citing Hill at 58-60). Generally, statements at a plea allocution are conclusive absent credible reasons justifying a departure from those statements apparent truth. United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992). When the alleged deficiency is a failure to investigate, the petitioner must provide the court with a comprehensive showing of what the investigation would have shown. Richardson at 488. To establish prejudice from his counsel’s failure to investigate, a petitioner must show that if the information had been obtained, it “would have led counsel to change his recommendation as to the plea.” Richardson at 488 (Citing Hill at 59). When a judgment of conviction based upon a guilty plea becomes final and the defendant seeks to reopen the proceeding, the inquiry is limited to whether the underlying plea was both counseled and voluntary. Where, as in the present case, the answer is in the affirmative the conviction and the plea foreclose collateral attack. United States v. Broce, 488 U.S. 563, 569 (1989). More than five and a half years after his guilty plea, Hanhardt contends for the first time that his plea was both uncounselled and involuntary. In his petition, Hanhardt contends that William Von Hoene 4 provided ineffective assistance of counsel by failing to investigate

4

William Von Hoene has been a highly respected lawyer in Chicago for more than 25 years. At the time of Hanhardt’s plea, Mr. Von Hoene was an experienced litigator and partner at the law firm of Jenner and Block. Most recently, Mr. Von Hoene has been Senior Vice President, Acting General Counsel, and Deputy General Counsel for Litigation at Exelon Corporation in Chicago. Sullivan’s Law Directory, 2005-2006 Edition at 1413. 12

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Hanhardt’s competency to enter a plea of guilty, failing “to secure Bill Hanhardt’s medical records concerning his suicide attempt immediately preceding Bill’s plea of guilty,” failing to “confer with Bill’s doctor,” and ignoring purported claims of one of Hanhardt’s daughters, Joene Hanhardt, “that her father was not thinking properly and that Bill needed medical attention.” Petition at 10. In a sworn affidavit, Hanhardt contends that at the time of his guilty plea my mind and emotions were completely overwhelmed, as was my ability to assert my wishes. In this condition, I finally and reluctantly just ‘gave in’ to the pressure of my counsel and pled guilty, following my counsel’s lead in my responses in Court. Hanhardt Affidavit at ¶23. In a §2255 proceeding to vacate or correct a sentence, a court is required to hold an evidentiary hearing “[u]nless the motion and the records and files of the case conclusively show that the prisoner is entitled to no relief ....” 28 U.S.C. §2255. No evidentiary hearing is required if the petitioner’s allegations cannot be accepted as true because they are contradicted by the record. Engelen v. United States, 68 F.3d 238, 240 (8 th Cir. 1995). In the present case the record shows that the parties obtained the medical records of Hanhardt’s hospitalization, reviewed them, and concluded that there is nothing in the records to suggest that Mr. Hanhardt is not able to understand the nature and consequences of the proceedings today, and nothing to suggest that he is not able to properly assist with his defense. Tr. 10/25/01 at 58-60. Hanhardt agreed on the record and under oath. Id. at 61.

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Nor did defense counsel ignore the views of Joene Hanhardt or other of Hanhardt’s family. Quite to the contrary, two weeks after the guilty plea Mr. Von Hoene brought Joene Hanhardt before the Court to address the Court on behalf of the Hanhardt family in of Hanhardt’s motion for release on bond pending sentencing. Tr. 11/9/01 at 13-14. Numerous other member’s of the Hanhardt family, including the defendant’s wife, were present in the courtroom. Id. at 9. Joene Hanhardt was afforded apple opportunity at that time to inform the Court of any relevant matters. Id. at 14. However, upon being advised by the Court that she, like any other witness, would be placed under oath and be subject to cross examination, she and Hanhardt decided that she would not address the Court.5 Id. at 1417. That proceeding on November 9 also showed that Mr. Von Hoene was fully informed of the circumstances and the views of the medical personnel attending Hanhardt prior to the entry of the guilty plea. Id. at 4-9. The record also refutes Hanhardt’s claim that at the time of his guilty plea his mind, his emotions, and his ability to assert his wishes “were completely overwhelmed” and that he “finally and reluctantly just ‘gave in’ to the pressure of my counsel and pled guilty.” Hanhardt affidavit at ¶23. Quite to the contrary, the record shows that Hanhardt was fully engaged. When he disagreed he said so (Tr. 10/25/01 at 41); when he did not understand he said so and he sought and obtained clarification and explanation before he proceeded. Id. at

5

Joene Hanhardt’s assertions in the present petition are not ed by an affidavit from

her. 14

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45-48; 53-55. And when he did understand he said that too, over and over again, more than two dozen times. And all of it was under oath. Id. at 2. Hanhardt contends that the defense failed to identify specifics of Hanhardt’s disagreement with government’s version of the offense “because Mr. Hanhardt was simply unclear about what he was doing and incapable to doing it at the time.” Petition at 13. That is not correct. Mr. Sullivan explained that those matters would be dealt with at sentencing. Tr. 10/25/01 at 42. Hanhardt had already clearly expressed his agreement with the defense version of the offense and the parties had already agreed that that version was sufficiently detailed to a plea of guilty. Id. at 13-14. Not disputing the details of the government’s version was a matter of defense strategy, not Hanhardt’s confusion. The record that refutes Hanhardt’s claim of ineffective assistance of counsel for failure to investigate his competency to plea guilty includes the statement of his lead counsel, Thomas P. Sullivan, that “[I]t is my opinion that he [Hanhardt] is fully alert, he knows what he is doing, and he is quite capable of making decisions on his own behalf.” Tr. 10/25/01 at 59. Mr. Sullivan has been a preeminent lawyer in Chicago and nationwide for more than fifty years. He would not have made that statement without first acquiring, personally and from his colleagues, the knowledge and understanding to it.6

6

In naming him its 2004 Person of the Year, the Chicago Lawyer said of Mr. Sullivan: For 50 years, Tom Sullivan has ben involved in everything: Operation Greylord, the ‘Chicago 7' trial, the House Un-American Activities Committee, the fight over the death penalty, fair housing for minorities. But he’s not done yet. In 2004, Sullivan carried his fight to improving fairness in criminal investigations and preserving the rights of CHA residents. For that – and his reputation for ethical practices and legacy 15

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Request to Modify Sentence Should his petition to vacate his conviction and sentence fail, Hanhardt asks, in the alternative, that the Court modify his existing sentence by vacating the finding that Hanhardt was responsible for the August 23, 1995, armed robbery of jewelry salesman Esagh Kashimallak. Tr. 5/1/02 at 667. Hanhardt asks that this be done so that he will be eligible to transfer to the Bureau of Prisons Camp at Oxford, Wisconsin, from the minimum security prison at Waseca, Minnesota.7 In of his request, Hanhardt presents no new evidence. Rather, he makes three arguments. First, he re-argues the evidence presented at his sentencing hearing. Second, he argues that the Court never intended to increase his sentence because of the Kashimallak armed robbery and the finding should be vacated because it has had the unintended result of increasing the severity of his sentence. And third, Hanhardt asks that the finding be vacated as an act of comion because of his advanced age and ill health and because of his years of service in the Chicago Police Department. This part of Hanhardt’s petition is also inadequate as a matter of law. The Court’s finding that Hanhardt was responsible for the Kashimallak armed robbery has been upheld on appeal, is the law of the case, and can not be revisited without just cause. United States

of pro bono work – Sullivan is our 2004 Person of the Year. Chicago Lawyer, December 2004, at 7. 7

Bureau of Prisons regulations prohibit persons whose convictions involved violence from being assigned to a prison camp. 16

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v. Hanhardt, 382 F.3d 361, 386-87 (7 th Cir. 2004). Unanticipated consequences is not just cause. As a matter of law, a petitioner can not base a §2255 petition upon the sentencing consequences resulting from his guilty plea. Woodruff v. United States, 131 F.3d 1238, 1241 (7 th Cir. 1998). Even if Hanhardt’s petition to vacate the Kashimallak armed robbery finding is properly before the Court, it should be denied. The Court’s finding was correct and leniency for Hanhardt, particularly at the expense of disparaging the honesty of one of his victims, is not appropriate. The Court Correctly Found that Hanhardt Was Responsible for the Kashimallak Armed Robbery At the sentencing of Hanhardt and Basinski, the government presented evidence that the conspiracy charged in Count One of the indictment had included the armed robbery of Esagh Kashimallak on August 23, 1995.8 Following sworn testimony from the victim and from FBI Special Agent Edward McNamara, the Court found Hanhardt responsible for the armed robbery. Tr. 5/1/02 at 667. The evidence at Hanhardt’s sentencing hearing as to the armed robbery was as follows: During most of 1996, conversations between Hanhardt and Basinski were being monitored by the government pursuant to court- authorized interception orders. During 1996, Hanhardt and Basinski were targeting several traveling jewelry salespersons including the

8

An exhibit in evidence at the sentencing hearing, GX 23, showed a time line of the events surrounding the robbery. It is attached as an exhibit to this filing. 17

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president of Mikan, Inc., a person who only carried his jewelry on his person. In a recorded conversation on February 29, 1996, Hanhardt told Basinski that he was having problems obtaining information on one such salesperson from a private detective with whom he was working. Hanhardt went on to say that nevertheless, “predicated on being optimistic,” he had just obtained a new car for his wife (“I got Ang a new car”). The following conversation then took place: HANHARDT:

You know last time I bought a Cadillac, two weeks later I got a present.(Emphasis added).

BASINSKI:

(Chuckling) Well, I hope, I hope that I’ll follow suit.

HANHARDT:

Yeah.

BASINSKI:

Ya know.

HANHARDT:

So do I.

GCV 19; Tr. 4/30/02 at 280-287; GX2, 5,6, 23. Starting from that conversation, government investigation determined from records from Weil Oldsmobile in Libertyville and the Illinois Secretary of State that on August 9, 1995, Hanhardt obtained a new 1995 Cadillac Seville from Weil Oldsmobile. Further investigation determined that on August 23, 1995, two weeks to the day after Hanhardt purchased that car, traveling jewelry salesperson Eshagh Kashimallak, from whom the conspirators had stolen $240,000 in jewelry in 1993, was robbed at gunpoint of more than $750,000 in jewelry in a hotel room at the Fairfield Inn in Brookfield, Wisconsin. Tr. 4/30/02 at 270-71,280-287. 18

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An additional avenue of investigation pursued by the government were records of a telephone calling card used by the conspirators from 1993 through 1996 as they traveled about the country stalking potential theft targets. It was in the fictitious name of John Zeman, 619 N. Racine, Chicago. Calling card records for that card for the day of the armed robbery of Kashimallak on August 23, 1995, showed seven calls being made, using the card, from a pay phone at a Holiday Inn in Waukesha, Wisconsin, approximately one mile from the Fairfield Inn, less than five hours before the robbery occurred. One call was to a non-public law enforcement number at the Chicago Police Department’s 911 Center. CGV at19-20; R.211 at 2-20; Time Line. Basinski would often call that number, impersonate a police officer, and obtain law enforcement database information including vehicle identification numbers on vehicles of jewelers targeted for theft. In all of the records obtained by the government showing telephone activity of the conspirators, none showed any other telephone activity in the Waukesha or Brookfield, Wisconsin, areas on any other date. Tr. 4/30/02 at 265-266, 273-74. Kashimallak also testified. He stated that he was fifty years old, that he was born in Iran, that his first language was Farsi, and that he had difficulty reading , understanding and writing English. In the 1993 to 1995 period, he was a traveling wholesale jewelry salesman selling loose diamonds, pearls and jewelry for H. K. Mallak, a New York company owned by his brother. Tr. 4/29/02 at 112-122.

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In 1995, Kashimallak had customers in at least seven states, including Illinois and Wisconsin. Altobello Jewelers in Illinois had been one of his customers since 1988 or 1989. He would stop at Altobello’s three or four times a year and spend between one and six hours there at each visit. In 1995, Kashimallak carried between $750,000 and $1,500,000 in merchandise, valued at cost. When he traveled, Kashimallak carried most of his jewelry on his person, in a vest that he wore over his shirt and under his jacket and in a pouch that he wore at his waist under his shirt and over his undershirt. Both Frank and Guy Altobello had seen where Kashimallak carried his jewelry on his person. Tr. 4/29/02 at 117-122. During the week of August 14, 1995, Kashimallak made arrangements for a sales trip to Illinois and Wisconsin the following week. Those arrangements included scheduling a visit to Altobello Jewelers for Thursday, August 24, 1995. On Monday, August 21, Kashimallak flew to Chicago, rented a car, met with a customer in Naperville and then drove to Appleton, Wisconsin. He visited customers in Appleton and Green Bay on August 22 and 23 and then drove to the Fairfield Inn in Brookfield, Wisconsin. He had stayed at the Fairfield Inn six or seven times in the past and had made a reservation for the current visit approximately one week before, using a credit card. Tr. 4/29/02 at 122-129. Kashimallak entered the hotel wearing his vest and pouch and carrying a jewelry case and his bag. He had between $750,000 and $1,000,000 in jewelry in the vest, pouch and case. Kashimallak ed, was assigned a room, and was given an electronic room key for Room 334. The registration process took two or three minutes and it took approximately two

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additional minutes for Kashimallak to reach his room from the front desk via an elevator. There were persons in line ahead of him in the lobby; no one was on the elevator with him and no one was in the hallway on the way to his room. He entered the room, turned and locked the door, and then turned back into the room. The room was dark; one light was on near the television. Tr. 4/29/02 at 120,134. As he entered the darkened room he was attacked by two men wearing masks. They grabbed him, struck him in the head as he called for help, displayed a weapon, and then struck him on the head with the gun as they forced him to the floor. As he lay on the floor on his stomach, they pulled his jacket over his head, took his vest and his pouch, and tied his wrists and ankles with tape. As he was lying on the floor, there was a knock at the door and one of the men said everything was okay. The robbers took his jewelry case and the cell phone he had on his belt, but not the money in his pocket. Tr. 4/29/02 at 136-145. After the robbers left, Kashimallak worked his ankles free, attempted unsuccessfully to call for help using the room telephone, worked his hands free, and went to the lobby for help. The local police were summoned, they took a statement from him, videotaped the room, and videotaped Kashimallak in the room explaining what had happened. Later, he was taken to the hospital and received stitches for the injury to his head. Tr. 4/29/02 at 145. Following the direct examination of Kashimallak (Tr. 4/29/02 at 111-158), the defense conducted an extensive cross-examination, focusing on the details of his description of what had happened and inconsistencies in the various descriptions he had given of the events over

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the years. Tr. 4/29/02 at 158-255. At the conclusion of the cross examination, the Court asked counsel whether he had had an adequate opportunity to cross-examine the witness and counsel responded that the Court had “given me more than enough time.” Id. 255-56. This Court found by a preponderance of the evidence that Kashimallak was the victim of an armed robbery and that Hanhardt and Basinski were responsible for the crime. Hanhardt continues to assert, as he did on appeal, that there was no reliable evidence that the robbery occurred and there was conclusive evidence that the robbery was staged by Kashimallak. Hanhardt at 386-87. Kashimallak failed a polygraph examination istered by the FBI in New York. Hanhardt contended on appeal that the report showed that Kashimallak lied about being robbed and that the district court erred by failing to consider the report and refusing to receive it in evidence.9 issibility of polygraph evidence is a matter within the discretion of the district court. United States v. Lea, 249 F.3d 632, 638 (7 th Cir. 2001). One of the questions in the polygraph examination given to Kashimallak was: “Were you involved in any way with the theft of those jewels.” R. 356, Def. Ex. 11. This Court noted that such an ambiguous question would be difficult to answer, even for someone who did not have Kashimallak’s language difficulties, and an examiner might conclude there had been deception. Tr. 4/30/02 at 310. The ambiguity of the question was, the Court noted, analogous to asking Ken Starr whether he was involved in any way with Monica Lewinsky. Id. 9

All of the defendants plead to a July,1992, theft of jewelry from traveling salesperson Mel Draftz. Draftz failed a polygraph test regarding that theft. Tr. 4/30/02 at 308. 22

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The defense submitted affidavits from police officers who investigated the case and opined that Kashimallak had faked the robbery. The Court found that the Brookfield officers worked with limited evidence and reached premature conclusions. The affidavits showed that the officers had no concept of the tactics of sophisticated thieves. Two of the officers stated that one of the reasons that they concluded the robbery was a fake was because Kashimallak’s wallet was not taken along with the jewels. Tr. 4/30/02 at 482, 492. They also stated that because the room was not assigned until Kashimallak ed, it was “impossible” for the robbers to have entered his room ahead of him and the odds of that happening were “astronomical” and “unbelievable.” Id. at 476-77, 488-90. The officers had no concept of sophisticated thieves who possessed master keys for hotels, communicated by compact, FM transmitters, and were so self-assured of their prowess that they would stand or sit right next to a target in a public place to get information about him. Id. at 298-306, 395; Santiago at 153. The defense asserts that the defendants could not have been involved with an armed robbery because the government’s own investigation showed that the conspirators were non-confrontational and used stealth, not violence, to prey upon their victims. Tr. 4/30/02 at 346; Def. Ex. 18. The assertion is not correct. During the investigation, the government obtained equipment that had been in the possession of the conspirators and available to them that included loaded guns, bulletproof vests, military-type smoke grenades, handcuffs, a taser gun, and a device that creates a blinding flash. Id. at 306-07,456.

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Hanhardt contended that if the conspirators had robbed Kashimallak they would have done so at the beginning of his sales route when he was carrying the most jewelry. The contention was meritless. As the record shows, that is precisely the kind of predictability in which these professional thieves did not indulge. The defendants plead guilty to a theft on May 7, 1994, of $170,000 in jewelry from representatives of Nafco Gems, Ltd., at the Skyharbor Airport, Phoenix, Arizona, that occurred as those representatives were returning from a European selling trip. Tr. 4/30/02 at 464. Hanhardt has raised a litany of arguments, all of which fail to address the real point – if Kashimallak faked a robbery of himself, the Court would have had to find that the following were “mere coincidences”: -

Of all the days Kashimallak could have picked to rob himself, he just happened to pick precisely the day referred to by Hanhardt in his “I got a present” conversation with Basinski;

-

Kashimallak was a supplier to Altobello Jewelers;

-

Altobello Jewelers knew he was traveling with his line and that he would be at Altobello Jewelers the next day;

-

The conspirators had stolen from Kashimallak before on August 3, 1993 (Tr. 4/30/02 at 270-71);

-

It was a characteristic of the conspirators that they maintained surveillance data on salespersons even after they had stolen from them once (Basinski and D’Antonio briefcases) and would use that data to strike the same salesperson more than once (Lachterman, 1984, 1996; Draftz, 1992, 1993; Kashimallak, 1993, 1995);

-

Records of a telephone calling card used by the conspirators as they stalked their theft targets provided the roap that led the government 24

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to many of the other thefts to which the defendants plead guilty. The card was used from a payphone a mile from the scene of the robbery less than five hours before the robbery occurred; -

The one and only time that the calling card used by the conspirators as they stalked their theft targets was ever used in the area where the robbery occurred was on the very day Kashimallak was robbed;

-

The conspirators stalked several salespersons who carried their line on their person and from whom the conspirators could steal only by physical confrontation and the use of force;

-

The conspirators maintained loaded weapons and other devices for physical confrontation and the use of force.

Tr. 4/29/02 at 112-253; 4/30/02 at 263-475. Based on the totality of the circumstantial evidence and the Court’s assessment of the credibility of the witnesses, the finding that the preponderance of the evidence established Hanhardt’s and Basinski’s responsibility for the Kashemallak robbery was correct. Leniency For Hanhardt Would Not Be Appropriate Hanhardt continues to argue that he should be given greater credit for his years with the Chicago Police Department. The record demonstrates otherwise. He is the highest ranking Chicago police officer to be convicted of crimes. Throughout his 33 year tenure at the D, he was one of The Outfit’s people at the D. CGV at 41-64; Tr. 5/1/02 at 696. To this day Hanhardt has continued to be a public disgrace to the D. Sworn testimony reported in the public press from the just-completed trial in United States v.

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Calabrese, 02 CR 1050,10 asserted that in the 1960's, Hanhardt took $1000 per month and a new car every two years in bribes from Outfit boss Angelo Volpe. Chicago Sun-Times, July 26, 2007. (A copy of the article is attached). As Hanhardt seeks the leniency of this Court, citing his advanced age, ill health, and unexpired prison term, former Assistant United States Attorney John Scully’s concluding words in the government’s statement to the Court at Hanhardt’s sentencing hearing remain a clear expression why such leniency is not inappropriate: His greed and loyalty was to the Mob and to his Mob-associated jewelry theft crew, which were more important to him than his family, the Chicago Police Department, or the citizens that he swore to protect. Tr. 5/1/02 at 700.

10

On the date of the filing of this response, September 10, 2007, the jury convicted all five defendants in Calabrese on all counts, including racketeering, extortion, conducting an illegal gambling business, obstruction of justice, and tax fraud. 26

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CONCLUSION For the reasons set forth above, the government asks that this Court dismiss petitioner William Hanhardt’s motion to vacate and set aside his conviction and sentence for failure to state a claim upon which relief can be granted or, in the alternative, deny the petition.

Respectfully submitted, PATRICK J. FITZGERALD United States Attorney

By:

/s/ John F. Podliska JOHN F. PODLISKA Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604 (312) 353-2815

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CERTIFICATE OF SERVICE

The undersigned Assistant United States Attorney hereby certifies that GOVERNMENT’S MOTION TO DISMISS PETITIONER WILLIAM HANHARDT’S MOTION TO VACATE CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2255 EXHIBIT were served on September 10, 2007, in accordance with Fed. R. Crim. P. 49, Fed. R. Civ. P. 5, LR 5.5, and the General Order on Electronic Case Filing (“ECF”) pursuant to the district court’s system as to ECF filers: Jeffrey Bruce Steinback [email protected]

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UITED STATES DISTRICT COURT ORTHER DISTRICT OF ILLIOIS EASTER DIVISIO UITED STATES OF AMERICA,

) ) ) ) ) ) ) ) )

Plaintiff, vs. WILLIAM HAHARDT, Defendant.

o.

07 CV 2542 00 CR 853-1

The Honorable Charles R. orgle, Sr., Judge Presiding.

REPLY TO THE GOVERMET'S MOTIO TO DISMISS NOW COMES the defendant, WILLIAM HANHARDT (hereinafter "Hanhardt" or "Bill Hanhardt"), by and through his attorney, JEFFREY B. STEINBACK, and files this Reply to the Government's Motion to Dismiss Petitioner William Hanhardt's Motion to Vacate Conviction and Sentence Pursuant to 28 U.S.C. § 2255. DISCUSSIO WILLIAM HAHARDT WAS DEIED HIS COSTITUTIOAL RIGHT TO EFFECTIVE ASSISTACE OF COUSEL. Due process requires a court to hold a hearing whenever evidence raises a sufficient doubt about the mental competency of an accused to stand trial. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836 (1966). Similarly, the degree of competence necessary to plead guilty is identical to the degree of competence to stand trial. Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680 (1993).

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The Government urges this Court to dismiss Hanhardt's § 2255 motion, contending that the allegations cannot be accepted as true because they are contradicted by the record. (Gov. Motion, page 13) However, a careful review of the facts illustrates that the Government's position is unfounded and that, under the law, Hanhardt's § 2255 motion must be granted. The Government's initial argument is that the prosecutor and defense counsel reviewed the medical records of Hanhardt's hospitalization the previous week and found nothing that raised any issue of Hanhardt's competency and fitness to enter a plea of guilty.l (Gov. Motion, pages 10, 13) The Government's argument conveniently overlooks or ignores the fact that Hanhardt's hospitalization stemmed from his attempted suicide nine days before he entered his plea of guilty. 2 Contrary to the Government's position, the medical records establish that a bona fide doubt existed as to Hanhardt's competency to enter a plea of guilty nine days after he tried to kill himself. On October 16, 2001, William Hanhardt attempted to commit suicide by taking an overdose of his prescription medication. As a result, Hanhardt was hospitalized at Highland ___________________ It must be noted that the Government itself was impelled to raise the question of Hanhardt's competency at the end of the proceedings. On page 58 of the change of plea hearing on October 25, 2001, the prosecutor, unprompted by defense counsel, took it upon himself to raise the issue of Hanhardt’s competency, only in the most conclusory , and only then so that he could knock it down. Given the state of the record, it is understandable why the prosecutor felt he had to do something to attempt to protect an otherwise indefensible oversight. 1

2 The

Government's argument reads as though Hanhardt was hospitalized the week before his plea of guilty for some benign reason totally unrelated to the issue of his competency to enter the blind plea of guilty, rather than Hanhardt being chained to a bed, isolated from family, in a psychiatric ward guarded by police on a suicide-watch around-the-clock following a genuine attempt to kill himself.

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Park Hospital, where his treating physician was Dr. Bernard E. Lakemaker. In Hanhardt's medical record, Dr. Lakemaker wrote that Hanhardt had taken four Ambian and 20 Oxycontin (an opiate pain killer/Schedule 2 narcotic) with the intent of killing himself.3 Dr. Lakemaker's notes state that this medication was in a potentially lethal dose, readily capable of killing Hanhardt at this volume. Indeed, Hanhardt was found by his wife during the early morning hours to be unconscious and unresponsive, prompting her to call the paramedics. Upon his arrival at the hospital, his vital signs were found to be unstable and he was itted to the Intensive Care Unit. Hanhardt remained unconscious or incommunicative throughout the evening and into the next afternoon. Dr. Lakemaker’s medical report further states, "[Hanhardt] has spoken with Dr. Lakemaker about his depression and anxiety. This gentleman has been markedly depressed for the past five years. . . . The patient has had suicidal preoccupations for the past six months and no sexual interest. Clinical data was obtained from the emergency room doctor, Dr. Lakemaker, and the patient. The patient's feelings about the illness is that he wishes he were dead because of the possible outcome of the legal situation is so devastating to him." Additional medical records concerning Hanhardt’s hospitalization were generated by Dr. Leonard Carr, another attending psychiatrist who authored these clinical observations: (See Patient Progress Notes of October 18, 2001, appended hereto as Exhibit A) "This man is seen as a serious suicidal risk and should be on the highest level of suicide precautions. (He is a bright & skillful man and may be very clever at trying to kill himself.) The patient is to be checked for contra brand that may assist suicide. He needs continuing medications and psychotherapy to deal with the depression. " ___________________ 3

Hanhardt's medical records were appended to his § 2255 motion.

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In similar fashion, under the heading TREATMENT PLAN, Dr. Lakemaker wrote that Hanhardt "meets the criteria for inpatient ission." In Hanhardt's Discharge Notes, dated October 18, 2001, Dr. Lakemaker wrote: "...He needs continuing medications and psychotherapy to deal with the depression. " Hanhardt’s resulting diagnosis as of October 18, 2001, was “Major Depression, Recurrent”; and “Opiate Overdose – Severe”. After reviewing these medical records, several pre-plea hearings were conducted before the Court. During one of the discussions about Dr. Lakemaker’s medical reports concerning certain statements Hanhardt made to the doctor after he regained consciousness, one of Hanhardt’s attorneys, Mr. Thomas Sullivan, made this statement to the Court: “The point I was going to make is that at the times that Mr. Hanhardt made those statements, he may not have been compus mentus”, continuing, Mr. Sullivan stated: “…what we have been told by Dr. Totonchi—he is the doctor that did the operation that prescribed the drug—he has told us that that amount of that drug would be fatal.” (See hearing of October 16, 2001 at pages 10, 11). Not surprisingly, in these pre-plea proceedings, the Government never disputed the evidence that Hanhardt meant to kill himself by taking a serious overdose of drugs. Indeed, one of the Government attorneys, at the October 16, 2001 status before the Court, observed: “…the medical records are clear. That the toxicology screen for Mr. Hanhardt was positive for opiates. The final diagnosis of the hospital states: ‘1. Opiate overdose, 2. Suicidal ideation.’” (See page 12 of October 16, 2001 hearing at lines 14-17) As such, in the days immediately leading up to Hanhardt’s blind plea of guilty in this case, we have an individual who made a serious attempt on his life. He took enough opiates to kill himself at least three times over. He lapsed into unconsciousness and could not be revived

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for the better part of a full day. His family reported to his attorneys that he was severely depressed, anxious and overcome with feelings of hopelessness. The attending psychiatrist issued medical reports, providing a consensus of medical opinions, that he continued to present a serious suicidal risk and should be placed on the highest level of suicide precautions. He was diagnosed with major recurrent depression. The motivation for suicide was stated to be the very legal situation which then confronted him and was overwhelming to him. Questions were raised about Hanhardt’s “compus mentus” by his own attorney. Government counsel did not dispute, nor could they credibly have disputed his desperate mental state. Yet, the Government’s principle response to our petition is that there was nothing found in the medical records of Hanhardt’s hospitalization which raised any issue concerning his competency and fitness to enter a plea of guilty. There could be no serious debate that there is an “almost ubiquitous presence of mental illness in those who commit suicide…it is tempting when looking at the life of anyone who has committed suicide to read into the decision to die a vastly complex web of reasons; and, of course, such complexity is warranted. No one illness or event causes suicide; and certainly no one knows all or perhaps even most, of the motivations behind the killing of the self. But psychopathology is almost always there, and its deadliness is fierce… any sane doctor knows that the reasons for suicide are invariably psychopathology.” (See Jamison’s Night Falls Fast Understanding Suicide at 31,85(1999)) For the Government to maintain this position in the full view of these records is to blink its eyes at reality. In Estock v. Lane, 842 F.2d 184, 187 (7th Cir. 1988), the Seventh Circuit held that a bona fide doubt of competency existed when the defendant attempted suicide and was diagnosed as "paranoid personality, borderline on psychotic." Similarly, in United States v. Loyola-

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Dominguez, 125 F 3d 1315, 1318 (9th Cir. 1997), the Ninth Circuit reversed the defendant's conviction and remanded for an evidentiary hearing and held, "[a]n attempted suicide is an extremely serious action." In this case, Hanhardt’s attorneys, Mr. Sullivan and Mr. William Von Hoene failed to file any motion, either seeking a competency determination or a psychiatrist evaluation to determine their client’s fitness to enter a blind plea on October 25, 2001. In so doing, they not only ignored the overwhelming medical evidence concerning their client’s extremely recent suicide attempt, and his diagnosis of major recurrent depression, but also the critical series of events, of which they were aware, over the preceding few months, which clearly raised a bona fide doubt as to Hanhardt’s competency to enter a plea at that time. It was August 29, 2001, when Hanhardt’s defense counsel informed the Court that Hanhardt had just undergone surgery the day before for a possible recurrence of testicular cancer. It was on the September 11, 2001 status when defense counsel advised the Court that Hanhardt had a tumor removed, resulting in severe, unremitting swelling and pain, and requiring significant levels of pain medication and six weeks of recuperation. It was then that trial was reset for October 16, 2001. Later, on October 9, 2001, Hanhardt’s attorneys moved that the October 16th trial date be continued because of the extreme pain Hanhardt still suffered, resulting in his ability to sit for any length of time, which would make a lengthy trial schedule unbearable.

The medical

evidence ing Mr. Hanhardt’s condition was unrebutted. On October 11, 2001, the Court denied the defense motion on the basis that the trial would only go 4 days per week, with breaks and that Hanhardt would be able to bring whatever he needed to find some comfort level. It is important in this context to note that Hanhardt, earlier that year, had undergone an

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additional surgery caused by spinal stenosis and a variety of arthritic conditions and disk bulges, generating severe pain. Months before his cancer surgery, Hanhardt had become dependent on an array of powerful painkillers. Sometime following the October 11, 2001 continuance denial, Hanhardt’s defense attorney advised the Court and the Government that Hanhardt would plead guilty on October 16th. The day before the October 16th hearing, Sullivan and Von Hoene met with Hanhardt to discuss his Court appearance scheduled for the following day. It was during this meeting that Sullivan told Hanhardt that if he did not plead guilty the next day, the trial would be a terrible event for both Hanhardt and his family. Hanhardt recalls Sullivan using the words “blood bath” to describe the trial.

It was during this same meeting that Sullivan and Von Hoene addressed

the financial status of Hanhardt’s legal situation should he desire to proceed to trial. They both informed Hanhardt and his wife, Angeline, that the trial would cost several hundred thousand dollars beyond what had already been paid to that point. Hanhardt knew that both he and his family had depleted their resources and would not be able to afford a trial. Sullivan proceeded further to advise Hanhardt that a trial could result in forfeitures which would have the effect of taking his pension and leaving his wife of more than 50 years without a home. Hanhardt had been depressed for some time. He had depleted not only his own monies, but those of his family. He was in constant pain and found the prospect that Angeline would lose everything absolutely unbearable. It was later that same night and into the early morning hours of the next day when Hanhardt attempted suicide. It is little wonder that the medical reports reflect that after Hanhardt regained consciousness, he advised the attending psychiatrist that he could not live with his current legal predicament. Both Sullivan and Von Hoene were well aware of their client’s precarious mental state after having dealt directly with him, having made

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at least a cursory review of the medical records and having spoken to Hanhardt’s family. In her affidavit, appended hereto as Exhibit B, Angeline Hanhardt confirms her husband’s mental condition over the several weeks prior to his attempted suicide. Mrs. Hanhardt states that her husband’s depression, anxiety and inability to think properly grew worse and worse leading up to Hanhardt’s attempted suicide on October 16th. Mrs. Hanhardt goes on to describe the bitter exchange which occurred when she voiced her observations about her husband and concerns to Von Hoene over the telephone the weekend just prior to the scheduled guilty plea. There could be no doubt that Hanhardt’s attorneys were made painfully aware of the magnitude of their client’s mental illness by his family in the aftermath of his suicide attempt in the days before his guilty plea. One week prior to Hanhardt’s blind plea, the Court ordered that a warrant issue for Hanhardt’s arrest. During that hearing, one of the prosecutor’s discussed with the Court an aspect of Dr. Carr’s medical report.

In discussing Hanhardt’s “needs (for) continuing

medication and psychotherapy to deal with (his) depression,” the doctor observed that Hanhardt would be transferred from Highland Park Hospital to one of two other hospitals, either “U of IC” which Dr. Carr stated was his choice because “they can deal with his level of severity” or to Bethany Hospital for treatment. The prosecutor, in response to Von Hoene’s concern that Dr. Carr would not have privileges at these hospitals, stated: “… we could see if we could arrange for Dr. Carr (to continue treatment at one of these hospitals). But I think that the medical and psychiatric facilities of the Bureau of Prisons would be adequate to deal with any issues that Mr. Hanhardt might experience.” (See October 18, 2001 proceedings at Page 6 lines 2-6).

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In response, the Court, among other things, shared these observations: “Now, this issue of (Hanhardt’s) mental health has been raised as a result of his own conduct…. Now, if the issue of mental health remains here, as apparently the defendant argues it does, then the Bureau of Prisons should determine his placement pending trial. The Government has recommended a placement at Bethany Hospital in the U of I Chicago medical facility. As a practical matter, that would seem to be reasonable placement. It would permit the defendant’s experts, should he decide to pursue this, to deal with him there, and it would also permit an expert to be determined by the Government to deal with the issues related to Mr. Hanhardt’s mental health.” (See October 18, 2001 hearing at Pages 7, 8) By this time, Hanhardt’s attorneys had been unequivocally informed by the medical records that he was suffering from major recurrent depression, that he had taken an overdose of painkillers involving a lethal dose, that he had been unconscious for the better part of a day, that he was on round-the-clock suicide watch of the highest level, that he was dealing with constant levels of both mental and physical pain, and that his depression, anxiety and feelings of helplessness had only worsened. In full view of all of this, the Court squarely confronted Hanhardt’s attorneys with this critical inquiry: “Now, I don’t know, Mr. Von Hoene or Mr. Sullivan if you intend to file a motion dealing with competency for trial, or whether you want this matter to proceed routinely.” (See October 18, 2001 hearing at pages 8, 9). Incredibly, in response to this, defense counsel asserted: “Your Honor, I think just routinely… and if Mr. Hanhardt is capable of coming along, we will bring him along.” (See October 18, 2001 hearing at page 9, lines 3-7). Hanhardt’s mental health could hardly be said to have improved in the days following the execution of the warrant for his arrest. It was in the afternoon hours of October 18th, when

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Hanhardt was taken into custody by US Marshall’s, handcuffed and transferred to Bethany Hospital, where he was held under 24 hour police guard with one hand shackled to his bed. He was permitted no family visits or phone communication.4 On October 21, 2001, Hanhardt was transferred out of Bethany and to the Metropolitan Correctional Center, a non-psychiatric facility. Hanhardt was held there through and after his October 25th blind plea. Now, the Government’s response also urges this Court to deny relief on the claim that Hanhardt’s responses in Court demonstrate that he was competent to enter a plea of guilty. (Government motion pages 10, 15). It is true that Hanhardt stood before the Court, and, calling upon every ounce of strength and dignity he could muster, answered the Court’s questions. The Government relies on some of those answers. However, when a bona fide doubt exists as to the competency of the accused, as it did in this case, it is axiomatic that his competency cannot be determined by his simply saying that he is competent. Moreover, there are significant aspects in the change-of-plea hearing which suggest that Hanhardt was confused over the significance of his blind plea: THE COURT: And as to the rights that you would be giving up upon your plea of guilty, when you did talk to your lawyers, were their statements to you consistent with what I have just said? THE DEFENDANT: With one exception: my right to have an appeal to the Title III. THE COURT: This is not a conditional plea - THE DEFENDANT: I understand that, your Honor. THE COURT: - - of guilty.

4

Hanhardt’s wife was the sole exception. She was permitted one approximately three minute phone call during this time frame.

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THE DEFENDANT: But you are asking me – THE COURT: Does the Government understand this to be a conditional plea of guilty? MR. PODLISKA: It is not. THE COURT: Does the Government agree to a conditional plea of guilty? MR. PODLISKA: No. THE COURT: Is this presented to the Court as a conditional plea of guilty? MR. SULLIVAN: Your Honor, we have advised Mr. Hanhardt that by entering this plea of guilty he is giving up his right of appeal from your Honor’s denial of the pretrial motion to suppress. THE COURT: Is that correct, Mr. Hanhardt? THE DEFENDANT: It is at this moment, yes, sir. It wasn’t prior to coming in here. THE COURT: Well, this might be an appropriate time to take a short coffee break. (See change of plea hearing transcript at Pages 45, 46 appended hereto as Exhibit C). A blind plea, by its very nature, carries with it a great deal of uncertainty. There is no sentencing agreement. There are no understandings between the parties regarding monetary penalties. There is no written delineation of the rights one waives as a consequence of it. In order for an accused knowingly and voluntarily to change his plea, he must be in possession of his complete mental facilities and be emotionally stable. This is all the more so in Hanhardt’s case. Although Hanhardt was proposing to plead guilty, the Government opposed any leniency for acceptance of responsibility. The Government would seek an upward departure from the sentencing guideline based on the Kashimallak robbery, although this was uncharged in the indictment. The defense had pursued a significant motion to suppress. Yet, well into the change of plea hearing, Hanhardt did not even realize that he was abandoning his right to appeal the

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Court’s denial of that motion. To the contrary, it is evident that at least Hanhardt believed that his plea was conditional. The remainder of Hanhardt’s life hung in the balance. The Court took a brief adjournment after Hanhardt’s obvious confusion over the import of his plea. In so doing, the Court provided defense counsel with one more opportunity to raise the issue of Hanhardt’s competency at that time. Once again, defense counsel failed to do so. It was only after the Court completed its colloquy with Hanhardt that the Government, not the defense, felt compelled to raise the issue of Hanhardt’s competency, if only conveniently to knock it back down. On November 8, 2001, approximately 2 weeks after Hanhardt’s blind plea of guilty, there was a motion before the Court for Hanhardt’s release on bond pending sentencing.

The

Government in its current motion to dismiss states as follows: "Joene Hanhardt was afforded apple (sic) opportunity at that time to inform the Court of any relevant matters. However, upon being advised by the Court that she, like any other witness, would be placed under oath and be subject to cross examination, she and Hanhardt decided that she would not address the Court." (Gov. Motion p.14) Joene Hanhardt was in court, fully prepared to address the Court and willing to be subjected to cross-examination. However, before she was to address the Court, Sullivan requested and received a brief recess from the Court. It was during that recess that Sullivan pushed Hanhardt into a position where Hanhardt would not permit her to testify. Hanhardt was so upset that he told his daughter that if she attempted to speak, that he would simply abandon his motion. A decision was made by Sullivan, with which Hanhardt concurred, and Joene Hanhardt was precluded from addressing the Court. The Affidavit of Joene Hanhardt is appended hereto as Exhibit D. In light of the above, Sullivan’s and Von Hoene’s failure to seek a competency hearing

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for Hanhardt, or at least a mental health status examination prior to his change of plea constituted ineffective assistance of counsel. Mr. Sullivan and Mr. Von Honee enjoy excellent reputations in the legal community, but this was not their best day. Repeatedly, this Court provided defense counsel with the opportunity to make the required motions. Despite the ready availability of qualified psychiatric experts, there was no request for a psychiatric evaluation. Had such a request been made, in these circumstances there is more than a reasonable probability that this court would have ordered a competency hearing. Hanhardt’s mental status cried out for evaluation. His mental condition demanded immediate, on-going psychotherapy and continual monitoring. In these circumstances, Hanhardt’s defense attorneys’ assistance must be deemed ineffective. The resulting prejudice to Hanhardt manifested itself in his loss of his right to a conditional appeal, his inability to assist his attorneys defending against the Kashimallak allegation and his loss of acceptance of responsibility.

THIS COURT IS URGED TO REMOVE THE ELEMET OF VIOLECE FROM HAHARDT'S SETECIG ORDER The Government contends that the Seventh Circuit upheld the finding that Hanhardt was responsible for the purported armed robbery of Esagh Kashimallak and that this finding cannot be revisited without just cause. (Gov. Motion, p. 16) The essence of the issue on appeal involved the propriety of the sentence by this Court. The in Hanhardt began its analysis by noting that the Government sought an enhancement for the physical restraint of a victim (§ 3A1.3) (2 levels) and an upward departure for the use of a weapon in the commission of a crime (§ 5K2.6) (6 levels) and bodily injury to a victim (§ 2B3.1) (2 levels). United States v. Hanhardt, 361 F.3d 382,387 (7th Cir. 2004). The went on to

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observe that this Court had "found by a preponderance of the evidence that Hanhardt was responsible for the armed robbery." Id The Seventh Circuit hastened to add this: "However, the court declined to impose either the upward departure or the enhancement and sentenced Hanhardt to the high end of the guideline range." Id. The Hanhardt court also observed that this Court did not increase Hanhardt's offense level and that there was no indication in the record that the court's finding of responsibility had any bearing on its decision to sentence Hanhardt at the high end of the applicable guideline range. ld. The question now is whether the element of violence should be removed from Mr. Hanhardt's sentencing order. The Government takes the position that this Court should not remove the element of violence because it would be "at the expense of disparaging the honesty of [Kashimallak]." (Gov. Motion, p. 17) The short answer to the Government's contention is that Kashimallak never said Hanhardt robbed him. Rather, it was only later that the Government claimed that it was Hanhardt who was among those that were somehow involved in the Kashimallak robbery. Therefore, the removal of the element of violence from Mr. Hanhardt's sentencing order will not disparage Kashimallak's reputation for honesty.5

___________________ 5 Any disparagement to Kashimallak's reputation for honesty came about long before Hanhardt was sentenced. Several high ranking police officers in Wisconsin did not believe Kashimallak's tale of being robbed in his hotel room in the manner he claimed. A jury did not believe Kashimallak in his civil lawsuit against the hotel where the purported armed robbery took place. The Government even concedes in these proceedings that Kashimallak failed a polygraph examination istered by the FBI in New York. (Gov. Motion, page 22) Removal of the element of violence is also consistent with the lack of any direct proof that Hanhardt was involved with this incident. There is no eyewitness testimony; no fingerprints; no one who ever claimed to have seen Hanhardt in the vicinity; no proceeds ever tied to Hanhardt.

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Instead, the Government engages in speculation and conjecture about the circumstances surrounding the Kashimallak incident. The Government first returns to its reference to the intercepted conversation, dated February 29, 1996, between Hanhardt and Basinski. (Gov. Motion p. 18). During the entirety of this conversation, there is absolutely no reference to either Kashimallak, a robbery, the location of a robbery, jewelry or the concealment of a robbery, or any other detail concerning the Kashimallak incident. Instead, there is an oblique reference by Hanhardt to having leased a new car for his wife.

In short, not a shred of direct evidence

suggesting either Hanhardt or Basinski even knew about the Kashimallak robbery, if one ever occurred. Still, the Government attempts to reverse engineer the import of this conversation as somehow demonstrating that Hanhardt and Basinski knew when Kashimallak would have been robbed. However clever this effort on the part of the Government, it ultimately fails for its inconsistency with the actual evidence produced by the Government during the sentencing. There, the Government produced evidence that Hanhardt had obtained a 1995 Cadillac from Weil Oldsmobile in Libertyville on August 9, 1995. It was a leased car for his wife. The evidence further demonstrates that Kashimallak did not even make his Wisconsin hotel reservation until August 16, 1995. He claimed he was robbed a week later on August 23, 1995. As such, to credit the Government’s theory here, Hanhardt would have had to be clairvoyant. He would have had to know a week before Kashimallak himself knew that Kashimallak would make reservations at a hotel, at which he might be robbed 7 days later. Reliance on such rank speculation does little more than demonstrate the overall weakness of the case against Hanhardt on the Kashimallak incident. Next, the Government's assertion that Kashimallak was a supplier to Altobello Jewelers

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exists in a vacuum with no mention being made of the vast number of other jewelry salesmen who also supplied Altobello Jewelers over the decades; suppliers who were never robbed or otherwise accosted. The Government suggests that Altobello Jewelers knew that Kashimallak was traveling with his line and would be at Altobello Jewelers the next day (August 24, 1995). However, it produced no evidence that Altobello knew the whereabouts of Kashimallak prior to his expected arrival at their store on August 24, 1995. There was no evidence that defendant Altobello or anyone else knew the whereabouts of Kashimallak in the days preceding August 24th, or indeed when it was that he would be returning to the Chicago area, much less that he would travel to an obscure hotel room in Appleton, Wisconsin -- more than 100 miles from the Altobello Jewelry store. The Government overlooks this Court’s finding that there was insufficient evidence to establish that Hanhardt had used any weapons, or that Hanhardt had caused any bodily harm to Kashimallak or even that Hanhardt was in the same room as Kashimallak. (R 362-20 at 717). The reason there was no such evidence is because Hanhardt simply was not involved in the Kashimallak incident. It is always difficult to prove a negative. Hanhardt has expressed a longstanding willingness to undergo FBI polygraph examination on this issue. The Government has never taken him up on this open invitation. Of course, the Grand Jury Indictment itself, alleging a series of carefully orchestrated burglaries, scrupulously calculated to insure that victims were never confronted, strongly militates against the violence finding in this case. The best reason for removal of this violence element is that Hanhardt is actually innocent of the Kashimallak incident.

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LEIECY ISSUE The Government also urges this Court to deny relief in this matter based upon testimony elicited during the trial in United States v. Frank Calabrese, which has been dubbed the Family Secrets trial. According to the Government, the testimony of a convicted felon, turned Government informant, included allegations that sometime in the 1960's Hanhardt took $1,000 per month and a new car every two years in bribes. (Gov. Motion, p. 26) These allegations should not be considered by this Court for several reasons. First, nothing of the sort was ever suggested at any point in the prosecution of Hanhardt, until now, more than six years after his expected date of trial and subsequent change of plea. These allegations are 40-45 years old, far too remote to the present offense. Second, conveniently, the Government fails to offer any corroborative evidence of its extraordinarily belated attempt at guilt by association relative to the aforementioned accusations. No evidence of vehicle titles, registrations, or other public documents to the "new car every two years"; nor any evidence of the allegedly concurrent monthly payments. Third, Hanhardt was never given any notice concerning this witness.

He had no

opportunity to confront the evidence, much less cross-examine this convicted felon, Government informant. In its place, the Government quotes the hearsay summary from a local newspaper article (which it attaches to its response) about an unrelated trial of other individuals. Finally, these allegations from the Family Secrets trial are categorically denied. In sharp contrast, are several letters of commendation and praise from the Department of Justice, Federal Bureau of Investigation. They are dated as follows: June 2, 1964; June 14, 1966; June 7, 1967; June 9, 1967; November 7, 1967; May 1, 1970; January 3, 1972. The letter dated January 3, 1972 is over J. Edgar Hoover's signature. All of these letters praise the investigative and law

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enforcement efforts in which Hanhardt was involved while working in conjunction with the FBI. (Appended hereto as Group Exhibit E)

DECLIIG HEALTH William Hanhardt will be 79 years old on December 15th. In the past, this Court has been apprised of Mr. Hanhardt's ill-health. For example, the Probation Officer informed this Court in 2002 regarding Hanhardt's bouts with Stage I seminomas (testicular cancer) resulting in three surgical procedures and the removal of both testicles and spermatic cord. (PSR Lines 676-680) The Probation Officer also verified that Hanhardt was rushed to the hospital on three separate occasions for congestive heart failure. (PSR Lines 680-682) The Probation Officer informed this Court that Hanhardt has been suffering from spinal stenosis (the narrowing of the spinal cord that causes serious back problems) since 1994. (PSR Lines 683-684) The Probation Officer also noted in 2002 that Hanhardt has borderline emphysema. (PSR Lines 685-687) More recently, in his position paper pursuant to the limited Paladino remand, which was filed in 2005, Mr. Hanhardt informed this Honorable Court that his health has continued to decline during his incarceration. Hanhardt explained that he has lost all of his bottom teeth on one side of his mouth and all of the top teeth on the opposite side of his mouth, creating obvious and significant problems with his ability to chew and eat. It took literally years for the prison to address this problem. Hanhardt has also been diagnosed as suffering from an ulcer, for which he has been placed on medication. Currently, Hanhardt continues to have heart problems, breathing problems (most likely emphysema), and severe back pain from the spinal stenosis. Most days find Hanhardt doubled over in pain; on some, he is simply unable to stand up. His wife of nearly 58 years is 80 years

18

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old and, herself, in poor health. They have been apart now for over 6 years. Bill longs to be closer to her and remains beset with depression as a constant host to his chronic, unrelenting medical problems, contributing to his state of steady decline. In weighing its decision, we urge that this Court consider Judge Posner's closing words in United States v. Jackson, 835 F.2d 1195, 1200 (7th Cir. 1987): "A civilized society locks up such people until age makes them harmless but it does not keep them in prison until they die." The removal of the element of violence from Mr. Hanhardt's record will be in keeping with this Court's sentencing decision not to enhance his offense level or depart upward for the Kashimallak incident. Conclusion This petition represents the last hope of William Hanhardt, his wife, his seven children and their families for some glimmer of relief. Had the lack of Hanhardt’s fitness been properly presented at the time proposed for his change of plea, it would have resulted in a competency hearing, enabling the Court to view the full extent of his mental illness. It would have also enabled Hanhardt time to recover and effectively assist his counsel particularly in defending himself against the Kashimallak allegations. As noted above, this Court declined to impose either the physical restraint enhancement or the upward departure at the initial sentencing. The removal of the element of violence from Hanhardt’s sentencing order will constitute a natural extension of the original sentencing decision.

19

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Accordingly, we pray for this relief and such other relief as this Court may deem just, proper and equitable. Respectfully submitted,

/s/ Jeffrey B. Steinback Jeffrey B. Steinback Attorney for William Hanhardt

JEFFREY B. STEINBACK Attorney at Law 53 West Jackson Blvd. Suite 1420 Chicago, IL 60604 (847) 624-9600

20

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STATE OF ILLINOIS COUNTY OF COOK

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ss

AFFIDAVIT OF JOEE HAHARDT I, Joene Hanhardt, being first duly sworn upon oath, depose and state as follows: 1. My parents are William Hanhardt (hereinafter “my father”) and Angeline Hanhardt (hereinafter “my mother”). 2. I am the fourth of seven children. 3. I am the Official Court Reporter for the Honorable Charles P. Kocoras, having held that position for the past 27 years. Prior to my appointment with Judge Kocoras, I worked as a court reporter for the Honorable Judges William J. Bauer and Alfred Y. Kirkland. 4. Mr. William Von Hoene (hereinafter “Von Hoene”) and Mr. Thomas P. Sullivan (hereinafter “Sullivan”) were the attorneys representing my father at the time of his attempted suicide (October 16, 2001) and his plea of guilty (October 25, 2001). 5. On or about October 12, 2001, I had a discussion with Von Hoene. During that conversation, I expressed my concern to Von Hoene about my father’s emotional and psychological state; specifically, that at that time, my father was not thinking clearly and that, in my opinion, my father needed medical attention before he could appear in court on his case. I conveyed to Von Hoene that my father was taking a number of prescription medications at that time. I also attempted to make known to Von Hoene my father’s feelings of hopelessness and helplessness, and his loss of self-worth. Von Hoene showed no reaction at all over my concerns about my father’s emotional state. It appeared to me as if nothing I said about my father’s mental and psychological state, and his acute medical condition, made any difference at all to Von Hoene. 6. Two weeks after my father’s blind plea of guilty (November 8, 2001), there was a motion before the Court for my father’s release on bond pending sentencing. The Government, in its current Motion to Dismiss, states as follows: “ Joene Hanhardt was afforded apple (sic) opportunity at that time to inform the Court of any relevant matters. However, upon being advised by the Court that she, like any other witness, would be placed under oath and be subject to cross examination, she and Hanhardt decided that she would not address the Court.” (p.14) I was in court, fully prepared to address the Court and willing to be subjected to crossexamination. However, before I was to proceed, Sullivan, unaware of what I was going to say, requested and received a brief recess from the Court. During that brief recess, Sullivan poignantly directed comments to my father; and, in his weakened state, convinced my father - using words to the effect, though not verbatim: “You see what has been happening here; you know your daughter has a professional position in this

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courthouse; you can’t put her through this” - that I should not address the Court. My father, obviously distraught, and over my protestations, told me, in no uncertain : “If you attempt to speak, I will stop these proceedings.” In deference to my father’s emotional state and their decision, I did not address the Court. 7. On May 20, 2006, my sister, Sara Hanhardt, and I directed a letter to the Regional Director of the Federal Bureau of Prisons (“BOP”). It was a request of the BOP that our father be transferred to a Federal Correctional Institution (“FCI”) closer to my parents’ residence in Deerfield, Illinois. The basis of our request was threefold: (i) my mother’s advanced age and medical condition; (ii) her inability to independently travel to visit my father at FCI Waseca, Minnesota; and, (iii) my father’s deteriorating medical condition and his mental health. In response to our letter, I received a letter dated July 11, 2006, from C. Ziegler. Mr. Ziegler is a Case Manager at FCI Waseca, the institution where my father is assigned. In his letter, Mr. Ziegler wrote, “Due to the severity of your father’s instant offense, he has a Public Safety Factor of Greatest Severity Offense and is ineligible for a transfer to a lesser security facility. In addition, there are no other facilities commensurate with your father’s security needs which would place him closer to home.” 8. The Government, in its current Motion to Dismiss, states as follows: “Joene Hanhardt’s assertions in the present petition are not ed by an affidavit from her.” (p. 14, footnote 5). I am submitting this affidavit to my assertions in the present petition. Further affiant sayeth not. ____________________________________ Joene Hanhardt

SUBSCRIBED AD SWOR TO before me this ____ day of November, 2007.

___________________________________ Notary Public

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA v.

WILLIAM HANHARDT

) ) ) ) ) )

No.

07 CV 2542 00 CR 853-1 Judge Charles R. Norgle, Sr.

GOVERNMENT’S SURREPLY TO DEFENDANT’S REPLY TO GOVERNMENT’S MOTION TO DISMISS OR TO DENY PETITION

The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, United States Attorney for the Northern District of Illinois, in surreply to William Hanhardt’s reply to the government’s motion to dismiss or, in the alternative, to deny his petition to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. §2255, states as follows: 1.

In his reply to the government’s motion to dismiss or, in the alternative,

to deny, his §2255 petition Hanhardt expands his claim for relief beyond the allegations set forth in his petition. Having alleged in the petition only that William Von Hoene provided ineffective assistance of counsel, he now asserts that both Von Hoene and Thomas P. Sullivan were not only ineffective, but that they threatened and coerced him into pleading guilty knowing that he was incompetent to do so. Reply at 7-9.

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2.

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Like his original allegation, none of these new allegations comport with his

sworn statements to the Court on October 25, 2001. Under oath at the guilty plea proceeding, Hanhardt repeatedly told the Court that he wanted to plead guilty, that he was pleading guilty because he was in fact guilty of the charges in the indictment, that his lawyers’ statement of the factual basis for his plea was a correct statement of what happened and what occurred, that he was not being coerced or forced or pressured or threatened by anyone into pleading guilty, that he had had a full, fair, and complete opportunity to discuss all aspects of his case with his lawyers, that he understood the advice they had given him, that he understood and agreed with the positions and statements of his lawyers in court, and that he had nothing that he wanted or needed to address as to his lawyers. Tr. 10/25/01 at 3, 5, 9, 14, 41, 44-45, 4750, 52-55, 57, 58. 1 3.

Now, more than six years after the guilty plea proceedings, Hanhardt asserts

that he should have a hearing to determine whether he was competent to knowingly and voluntarily enter a plea of guilty and to determine whether he had effective assistance of competent counsel to do so. That hearing has already been held. It was held on October 25, 2001. Hanhardt was given a full, fair, and complete opportunity to participate in that hearing and he did so, under oath. He cannot begin that process all over again by now submitting statements under oath which impeach the prior statements he made under oath at the guilty plea proceeding. United States v. Stewart, 198 F.3d 984, 985-87 (7 th Cir. 1999). 1

Pursuant to the Court’s November 9, 2007, Order, a copy of the October 25, 2001, guilty plea proceeding transcript is attached. 2

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4.

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Hanhardt’s newly asserted claims of mental incapacity and coercion, as well

as his original and expanded claim of ineffective assistance of counsel are procedurally barred. Hanhardt did not raise any of these issues prior to sentencing and re-sentencing in the district court, he did not raise the issues of lack of mental capacity or coercion on direct appeal, and he has shown neither cause for nor prejudice from these failures. See United States v. Frady, 456 U.S. 152, 168 (1982). Hanhardt had other counsel to whom he could have conveyed his allegations after his guilty plea. Counsel in addition to Sullivan and Von Hoene filed appearances and represented Hanhardt at sentencing in May, 2002, and Hanhardt was represented by counsel other than Sullivan and Von Hoene on appeal and at his re-sentencing in May, 2004.2 All of the information now asserted by Hanhardt was available prior to the initial sentencing and the current affiants were all present in court at the plea proceedings, the sentencing hearing in 2002, and the re-sentencing hearing in 2004. Nor can Hanhardt show prejudice; the factual basis for the guilt that he acknowledged was overwhelmingly demonstrated. Tr. 10/25/01 at 10-14, 16-39; Santiago Proffer. See United States v. Hanhardt, 424 F. Supp. 2d 1065, 1066-1069 (N.D. Ill. 2005).

2

Carolyn Gurland and Hanhardt’s present counsel filed appearances on 4/30/02 and 2/7/02, respectively, and represented Hanhardt at sentencing. R. 260, 282; Tr. 4/29/02 at 4, 16, 21-35; Tr. 4/30/02 at 262; Tr. 5/1/02 at 613, 671, 677, 684-6, 691-2. Jeffrey Cole represented Hanhardt on appeal and present counsel and Cole represented Hanhardt at his May, 2004, re-sentencing. R. 407, 423; United States v. Hanhardt, 361 F.3d 382, 385 (7th Cir. 2004). 3

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5.

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Hanhardt’s new contentions that he lacked the mental capacity to knowingly

and voluntarily enter a plea of guilty, that attorneys Von Hoene and Thomas P. Sullivan knew he lacked the capacity to enter a guilty plea, and that Von Hoene and Sullivan threatened and coerced him into entering a plea of guilty, all set forth for the first time in his reply to the government’s motion to dismiss his §2255 petition, are procedurally barred on numerous additional levels and even if they are assumed, arguendo, to be properly before the Court, they, like his original claim of ineffective assistance of counsel William Von Hoene, are meritless. Failure To Assert Claims In §2255 Petition 6.

In his petition, Hanhardt’s only alleged ground for relief was ineffective

assistance of counsel William Von Hoene for failing to inquire into Hanhardt’s mental capacity to plead guilty. While Hanhardt made factual representations regarding his purported mental state, he did not cite either mental incapacity or coercion as grounds for relief in his petition.

Issues not raised by a petitioner in his initial §2255 petition,

particularly a petitioner represented by retained counsel, are waived. Jennings v. United States, 461 F. Supp.2d 818, 833 (S.D. Ill. 2006) (and cases cited therein). The instructions to the Form Motion in the appendix to 28 U.S.C. §2255 state at ¶9: CAUTION: You must include in this motion all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that each ground. If you fail to set forth all grounds in this motion, you may be barred from presenting additional grounds at a later date.

4

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(Emphasis and bold in the original). 28 U.S.C. §2255 (2006) at 522.

See Zambrana v.

United States, 790 F.Supp. 838, 843 (N.D. Ind. 1992) (and cases cited therein). Failure To Assert Claims Prior To Sentencing 7.

By failing to raise prior to sentencing the arguments that he lacked the

mental capacity to plead guilty, that his guilty plea was coerced, and that his counsel were ineffective, Hanhardt has forfeited those arguments. Hanhardt was not sentenced until May, 2002, more than six months after the entry of his guilty plea. In the interim, two additional retained counsel, including his present counsel, filed appearances on his behalf. See Fn.2, supra. Where, as here, a defendant is represented by additional counsel at sentencing and sentencing occurs long after the entry of a guilty plea, arguments attacking the validity of the plea raised for the first time in a §2255 petition that could have been raised in the district court prior to sentencing are forfeited. See United States v. Hugi, 164 F.3d 378, 380 (7 th Cir. 1999). Failure To Assert Claims Of Mental Incapacity And Coercion On Appeal 8.

A voluntary and intelligent plea of guilty made by an accused person who has

been advised by competent counsel may not be collaterally attacked. Bousley v. United States, 523 U.S. 614, 621 (1998). Even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Id. Where, as in the present case, a defendant contests his sentence on appeal, but does not challenge the validity of his plea, he procedurally defaults the claim. Id. Where a defendant has procedurally

5

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defaulted by failing to raise a claim on direct appeal, the claim can be raised in a §2255 petition only upon a showing of either just cause and actual prejudice or actual innocence. Id. at 622. 9.

Hanhardt did not raise the issues of mental capacity and coercion on direct

appeal. Hanhardt makes no showing of cause for his failure to raise these issues on direct appeal, where he was represented by retained counsel other than Von Hoene and Sullivan, namely, now Magistrate Judge Jeffrey Cole, who at the time of the trial court and appellate court litigation of Hanhardt’s case was a highly experienced and able trial and appellate litigator. Furthermore, in his §2255 petition and in his reply to the government’s motion to dismiss or deny the petition, Hanhardt makes no claim of actual innocence of the charges to which he plead guilty. Therefore, Hanhardt’s claims of mental incapacity and coercion are procedurally barred for these additional reasons. See also Broadway v. United States, 104 F.3d 901, 903 (7 th Cir. 1997); see also Bontkowski v. United States, 850 F.2d 306, 313 (7 th Cir. 1988) (“non-constitutional errors which could have been raised on appeal but were not, are barred on collateral review – regardless of cause and prejudice”). Gray v. United States, 2004 WL 2921858 * 3 (N.D. Ill. 2004).

6

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Lack Of Legal And Substantive Merit Mental Incapacity Claim 10.

Assuming, arguendo, that Hanhardt’s claim of mental incapacity is properly

before this Court, it is meritless. The totality of the circumstances at the guilty plea proceeding on October 25, 2001, including Hanhardt’s extensive statements under oath in response to interrogation by the Court, his demeanor throughout the proceedings, his intelligence and extensive experience in the criminal justice system, his representation by experienced and distinguished counsel and their statements on his behalf, his interaction with the Court and both his own counsel and counsel for the government throughout the proceedings, and the factual basis set forth by his own counsel with which he agreed, all conclusively demonstrated that at the time of the change of plea proceeding Hanhardt had a sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding, he had a rational as well as factual understanding of the proceedings against him, and his plea was knowingly and voluntarily made. United States v. Cross, 57 F.3d 588, 591 (7 th Cir. 1995). See Eddmunds v. Peters, 93 F.3d 1307, 1314 (7 th Cir. 1996). 11.

On the issue of his competence to enter a plea of guilty, Hanhardt told the

Court under oath at the change of plea proceeding that he was taking anti-depressant medication, that he was clear minded, and that he knew what he was doing. Tr. 10/25/01 at 4, 49.

He told the Court under oath that he was not raising any issue with respect to

competency. Id. at 61.

7

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12.

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Having made statements attesting to his competence under oath at

the plea proceedings, the very purpose of which was to determine whether his plea of guilty was being made knowingly and voluntarily, Hanhardt now attempts to impeach his own sworn statements at that plea proceeding with additional sworn statements in affidavits from himself and close family . Hanhardt is barred from engaging in such maneuvers as a matter of law. United States v. Stewart, 198 F.3d 984, 985-87 (7 th Cir. 1999). 13.

Courts take the plea process seriously and hold defendants to their

representations. Hugi, 164 F.3d at 381. “A guilty plea is not a road-show tryout before the ‘real’ contest occurs in the §2255 proceedings.” Id. at 382. As the Seventh Circuit reiterated in Stewart: Entry of a guilty plea is not some empty ceremony, and statements made to a federal judge in open court are not trifles that defendants may elect to disregard. A defendant has no legal entitlement to benefit by contradicting himself under oath. Thus, when a judge credits the defendant’s statements in open court, the game is over. Stewart at 987. Coercion Claim 14.

Hanhardt told the Court at the guilty plea proceeding that he was not being

coerced or forced or pressured or threatened by anyone into pleading guilty. Tr. 10/25/01 at 49-50. Assuming, arguendo, that Hanhardt’s coercion claim is properly before the Court, it, too, should be dismissed as a matter of law for the reasons set forth in ¶s 10, 12 and 13 above.

8

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15.

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In addition, the statements that Hanhardt attributes to his counsel (Reply at 7)

were not threats or coercion, they were blunt, pragmatic, permissible, and necessary assessments that a guilty plea was in Hanhardt’s best interest. See United States v. Messino, 55 F.3d 1241, 1248, 1251-52 (7 th Cir. 1995). Hanhardt’s new claim that he plead guilty because he “knew that both he and his family had depleted their resources and would not be able to afford a trial”( Reply at 7) is uned by any financial affidavits from Hanhardt or his many family and is contradicted by the public record of this case that shows a vast array of privately retained counsel deployed for years on Hanhardt’s behalf, including the more than six years since the entry of the plea. Alleged Prejudice 16.

In his reply, Hanhardt asserts for the first time the prejudice he claims. He

contends that he was prejudiced by his loss of his right to a conditional plea and by his inability at sentencing to assist his attorneys defending against the Kashimallak armed robbery allegation and to obtain credit for acceptance of responsibility. Reply at 13. These contentions are procedurally barred for the reasons set forth in ¶s 6 and 7 above. 17.

Assuming, arguendo, that his claims of prejudice are properly before the

Court, they are meritless. Hanhardt had no “right to a conditional plea,” no offer of a conditional plea had been made by the government, and no conditional plea was acceptable to the government. Tr. 10/25/01 at 45-48. The defense to the Kashimallak armed robbery evidence was presented on behalf of both Hanhardt and Basinski by Jeffery Cole, who cross

9

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examined Kashimallak and the FBI case agent and argued to the Court. Tr. 4/29/02 at 158255; Tr. 4/30/02 at 331-452, 464-73; Tr. 5/1/02 at 531-603. Cole has filed no affidavit and has never at any time maintained that he was in any manner impeded in his efforts by any incapacity of Hanhardt. Lastly, Hanhardt’s lawyers had nothing to do with his failure to accept responsibility. When given the opportunity to address the Court, rather than accept responsibility for his conduct, Hanhardt chose instead to hurl a nasty and sarcastic insult at the Court. Tr. 5/1/02 at 670. And he reiterated it the following day. Tr. 5/2/02 at 725. Hanhardt has yet to accept responsibility for his conduct. He has been ably represented by counsel other than Von Hoene and Sullivan for more than six years, but he has never made a candid and complete statement of the circumstances surrounding the offense of conviction, including information about the methods used to commit the crime (See United States v. Larkin, 171 F.3d 556 (7 th Cir. 1999)), and denies responsibility for the Kashimallak armed robbery, now contending that as to that crime the is “actually innocent.” 3 Reply at 16.

3

Hanhardt’s dismissal of the government’s evidence of his involvement in the Kashimallak armed robbery as “rank speculation” (Reply at 15) and his strained effort to reargue the evidence (Reply at 15-16) presents no just cause to revisit the Court’s finding at his first sentencing hearing that Hanhardt was responsible for the Kashimallak armed robbery. Woodruff v. United States, 131 F.3d 1238, 1241 (7th Cir. 1998). 10

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Additional Alleged Grounds For Relief 18.

Hanhardt asks this Court to vacate his sentence, or at least to vacate the finding

that Hanhardt was responsible for the Kashimallak armed robbery, on humanitarian grounds in light of his advanced age and purported health issues. This Court has no jurisdiction and no authority to enter such an order. Congress has specifically prohibited federal courts from modifying a term of imprisonment for such reasons after the sentence has been imposed. 18 U.S.C. § 3582(c). That statute contains limited exceptions, but none of the exceptions permits the relief Hanhardt seeks. Section 3582 empowers the Court to reduce a sentence for extraordinary or compelling reasons, but the motion seeking such relief must come from the Director of the Bureau of Prisons, not the defendant.

18 U.S.C.

§3582(c)(1)(A)(I). The Court upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment ... after considering the factors set forth in [Title 18] section 3553(a) ... if it finds that – (I) extraordinary and compelling reasons warrant such a reduction ... . 18 U.S.C. §3582(c)(1)(A)(I). The Director of the Bureau of Prisons has made no motion on Hanhardt’s behalf under §3582. 19.

Hanhardt also asks for special consideration because of his service as a police

officer. He attaches several letters of commendation from significant government officials, including former FBI Director J. Edgar Hoover. Those letters present no legal or factual

11

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basis for the relief Hanhardt seeks.4 Hanhardt is the highest ranking member of the Chicago Police Department to be convicted of crimes. The public accolades he collected while a police officer created an image of him far different than the evidentiary reality established in the criminal prosecution. Had the officials who wrote the letters he cites known the facts acknowledged by Hanhardt at the plea proceeding and the facts detailed by the government at the plea proceeding and in its Santiago proffer, those letters would never have been written. 20.

One issue remains to be addressed. That issue is whether Hanhardt’s

conviction, sentence, and guilty plea must be vacated if the words he spoke at the guilty plea proceeding were not a genuine acknowledgment of guilt but, rather, part of a carefully calculated premeditated maneuver by Hanhardt to avoid conviction – a maneuver that began with his purported suicide attempt, culminated more than six years later in the filing of the §2255 petition, and involved Hanhardt’s use and manipulation of his doctors, his wife, his family , and his lawyers to unwittingly aid his deception. 21.

The goal of such a maneuver would be to avoid conviction altogether by

putting the government to its proof not when the government was fully prepared to proceed in October, 2001, but years later when the government’s ability to assemble the evidence, the

4

These matters were already raised by Hanhardt and considered by the Court at Hanhardt’s sentencing and re-sentencing. 12

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potential witnesses 5 , and its agents and lawyers 6 would have substantially diminished. The obvious disadvantage of such a maneuver is that Hanhardt has spent more than six years in prison, but that is a far lesser term of imprisonment than he would have faced following conviction by a jury in 2001, and possibly a shrewdly calculated price to pay for the chance to ultimately avoid conviction altogether. 22.

Has Hanhardt planned and executed such a maneuver over the past six

years? We may never know. But virtually everything asserted in of his purported suicide attempt and his present claim of mental incapacity depends on conclusions drawn by himself and others from his own statements and actions.7 Were those statements and actions staged to deceive? Hanhardt has the intelligence, cunning, background in law enforcement,8

5

Joseph Basinski died on April 30, 2007, after a long illness. Hanhardt filed his §2255 petition on May 7, 2007. 2007 WLNR 8195581; R. 446. 6

Assistant United States Attorney John Scully, who had been assigned to the investigation and prosecution from its inception, retired after 38 years of federal civilian and military service in September, 2007. 7

And key claims made by Hanhardt could not be verified. Hanhardt claimed that he took twenty oxycontin pills at around 2:00 a.m. in an attempt to harm himself on October 16, 2001, the day he was rushed to the hospital. Tr. 10/16/01 at 10. The defense itself advised the Court that the doctor who prescribed the medication for Hanhardt stated that that amount of that drug would be fatal. Id. at 11. As few as six pills could conceivably be fatal to someone in Hanhardt’s condition, according to the prescribing doctor. Id. Whatever Hanhardt did to cause him to be found unresponsive by his wife that morning, he did not take twenty oxycontin pills at 2:00 a.m. as he claimed. 8

See United States v. Hanhardt, 424 F. Supp. 2d 1065, 1066 (N.D. Ill. 2006). 13

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and knowledge of both the state 9 and federal10 criminal justice systems to conceive and execute such a scheme. 23.

The issue that must be resolved is whether his guilty plea, and the conviction

and sentence that resulted from it, should stand if we assume, arguendo, that he intentionally engaged in such a maneuver. The law is well settled that it should. United States v. Hugi, 164 F.3d 378, 382 (7 th Cir. 1999); United States v. Elison, 835 F.2d 687, 692 (7 th Cir. 1987). Hanhardt’s subjective intent in entering the guilty plea is irrelevant to the issue of whether the plea was entered knowingly and voluntarily. Elison, supra. What is relevant is what Hanhardt stated under oath at the plea proceeding. Id. Hanhardt told the Court that he was clear-minded and competent, that he understood the nature of the charges and the proceedings against him, and that he was pleading guilty because he was in fact guilty of the crimes charged in the indictment. Those voluntary, sworn responses control his fate. Elison at 693. By pleading guilty Hanhardt avoided the full weight of the evidence that would have been brought to bear against him in 2001. If he intentionally obtained the benefits of pleading guilty in 2001 only to set the stage for the real contest he intended to raise years later over the issues of his mental capacity and the voluntariness of his plea, he engaged in conduct the criminal justice system does not tolerate and for which it will accord him no benefit. Id.

9

Id.

10

See Tr. 5/1/02 at 670; United States v. Hanahan, 442 F.2d 649, 651 (7th Cir. 1971). 14

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24.

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Where, as here, the record conclusively demonstrates that a petitioner is

entitled to no relief, a §2255 petition should be dismissed. Almonacid v. United States, 476 F.3d 518, 521 (7 th Cir. 2007); Barker v. United States, 7 F.3d 629, 633 n. 3 (7 th Cir. 1993). See Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Conclusion For the reasons stated above and in its initial filing, the government asks that William Hanhardt’s petition to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. §2255 be dismissed or, in the alternative, denied. Respectfully submitted, PATRICK J. FITZGERALD United States Attorney

By: s/ John F. Podliska JOHN F. PODLISKA Assistant United States Attorney 219 South Dearborn Street - 5 th Fl. Chicago, Illinois 60604 (312) 353-2815 [email protected]

15

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CERTIFICATE OF SERVICE The undersigned Assistant United States Attorney hereby certifies that the following document: GOVERNMENT’S SURREPLY TO DEFENDANT’S REPLY TO GOVERNMENT’S MOTION TO DISMISS OR TO DENY PETITION was served on December 10, 2007, in accordance with F ED. R. C IV. P. 5, LR5.5, and the General Order on Electronic Case Filing pursuant to the district court’s Electronic Case Filing (ECF) system as to ECF filers. By: s/ John F. Podliska JOHN F. PODLISKA Assistant United States Attorney 219 South Dearborn Street - 5 th Fl. Chicago, Illinois 60604 (312) 353-2815 [email protected]

16

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UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.2.2 Eastern Division

United States of America Plaintiff, v.

Case No.: 1:07−cv−02542 Honorable Charles R. Norgle Sr.

William Hanhardt Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Wednesday, December 17, 2008: MINUTE entry before the Honorable Charles R. Norgle, Sr: Status hearing set for 12/19/2008 is stricken. Counsel shall file a written status report on or before 1/21/2009.Telephoned/mailed notice(ewf, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA v. WILLIAM HANHARDT

) ) ) ) )

No.

07 CV 2542 00 CR 853-1 Judge Charles R. Norgle, Sr.

GOVERNMENT’S STATUS REPORT

The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, United States Attorney for the Northern District of Illinois, pursuant to the Court’s Order of December 17, 2008, submits the following status report: 1.

Before the Court is petitioner William Hanhardt’s motion to vacate, set aside,

or correct his conviction and sentence (Document 1); the government’s motion to dismiss the petition or, in the alternative, to deny it (Document 11);

Hanhardt’s reply to the

government’s motion to dismiss (Document 18); and the government’s sur-reply (Document 22). Also before the Court are transcripts of Hanhardt’s guilty plea proceeding on October 25, 2001, sentencing hearing held May 2, 2002, and re-sentencing hearing held May 25, 2004. The government ordered the transcript of the re-sentencing hearing on December 26, 2007, pursuant to the Court’s order of December 12, 2007, and the government provided the transcript to the Court when the government received it. See Tr. 5/25/04 at 27.

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2.

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The government’s position is that William Hanhardt’s petition to vacate, set

aside, or correct his conviction and sentence pursuant to 28 U.S.C. §2255 should be dismissed or, in the alternative, denied as a matter a law without a hearing. The basis for the government’s position is set out in detail in the government’s motion to dismiss or deny the petition (27 pages) and in the government’s sur-reply (15 pages). No evidentiary hearing is warranted because, as a matter of law, Hanhardt’s allegations cannot be accepted as true because they are contradicted by the transcripts of the guilty plea and sentencing proceedings, including Hanhardt’s own statements under oath. See Gov’t’s Motion to Dismiss at 13-15; Gov’t’s Sur-reply at 2, 7-9. 3.

Furthermore, an evidentiary hearing is procedurally barred for additional

reasons set forth in the government’s filings. Gov’t’s Sur-reply at 2-6. For example, where, as here, a defendant is represented by additional counsel at sentencing and sentencing occurs long after the entry of a guilty plea, arguments attacking the validity of the plea raised for the first time in a §2255 petition that could have been raised in the district court prior to sentencing are forfeited. See United States v. Hugi, 164 F.3d 378, 380 (7 th Cir. 1999). Gov’t’s Sur-reply at 5. Hanhardt’s initial sentencing hearing (May 2, 2002) was held more than six months after his plea (October 25, 2001) and the re-sentencing hearing (May 25, 2004) was held more than 2 ½ years after the plea proceeding. At both sentencing hearings Hanhardt was represented by counsel other than those whose conduct and effectiveness he now challenges.

2

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4.

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In addition, Hanhardt’s request for alternative relief is now moot. In his

petition Hanhardt asks, as alternative relief should his petition to vacate his conviction and sentence fail, that the Court modify his existing sentence by vacating the finding (Tr. 5/1/02 at 667) that Hanhardt was responsible for the August 23, 1995, armed robbery of jewelry salesman Esagh Kashimallak. Hanhardt asks that this be done so that he would be eligible for transfer to the Bureau of Prisons Camp at Oxford, Wisconsin.1 Since the petition was filed, the Bureau of Prisons has stopped housing prisoners more than 70 years old at the Oxford Camp; Hanhardt, who is 80, exceeds the age requirement to qualify for transfer to Oxford.

Therefore,

Hanhardt is ineligible for transfer to the Oxford Camp and his

alternative relief request is moot. 5.

If the Court determines that Hanhardt’s petition should not be denied as a

matter of law, the government requests that the Court hold an evidentiary hearing to determine the validity of Hanhardt’s claims. The government asks that the Court authorize, as to subpoenas for witnesses to produce records, the early return of hearing subpoenas under F. R. Crim. P. 17(c) to facilitate preparation for the hearing.

1

Bureau of Prisons regulations prohibit persons whose convictions involved violence from being assigned to a prison camp. According to the BOP’s website, Hanhardt is presently confined at the minimum security prison at Englewood, Colorado. 3

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Respectfully submitted, PATRICK J. FITZGERALD United States Attorney

By: /s/ John F. Podliska JOHN F. PODLISKA Assistant United States Attorney 219 South Dearborn Street - 5 th Fl. Chicago, Illinois 60604 (312) 353-2815 By: /s/ Amarjeet Bhachu AMARJEET BHACHU Assistant United States Attorney 219 South Dearborn Street - 5 th Fl. Chicago, Illinois 60604 (312) 469-6212

4

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UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.2.2 Eastern Division

United States of America Plaintiff, v.

Case No.: 1:07−cv−02542 Honorable Charles R. Norgle Sr.

William Hanhardt Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Wednesday, January 21, 2009: MINUTE entry before the Honorable Charles R. Norgle, Sr: Defendant's time to file a written status report is extended to and until 1/28/2009. (ewf, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.

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Filed 01/28/2009 Filed: 05/27/2009

Page 1 of 4 Pages: 278

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA Plaintiff,

v.

WILLIAM HANHARDT, Defendant.

) ) ) ) ) ) ) ) ) ) ) ) )

No. 07 CV 2542 00 CR 853-1 The Honorable Charles R. Norgle, Sr. Judge Presiding

DEFENDANT WILLIAM HANHARDT’S STATUS REPORT Now comes the Defendant, WILLIAM HANHARDT, by and through his attorney Jeffrey B. Steinback, pursuant to this Court’s Order entered on December 17, 2008, submits the following status report: 1.

Before this Court is Mr. Hanhardt’s Motion to Vacate, Set Aside or

Correct his Sentence pursuant to 28 U.S.C. §2255; the Government’s Motion to Dismiss Petitioner’s §2255 Motion; Mr. Hanhardt’s Reply to the Government’s Motion to Dismiss ; and the Government’s Surreply. 2.

It is the defendant’s position that an evidentiary hearing is warranted to

determine whether Mr. Hanhardt’s constitutional right to effective assistance of counsel was violated when his attorneys, Mr. Sullivan and Mr. Von Hoene, failed to file any motion, either seeking a competency determination or a psychiatrist evaluation to determine their client’s fitness to enter a blind plea on October 25, 2001. In a 2255 proceeding a court is required to hold an evidentiary hearing “[u]nless the motion and the

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records and files of the case conclusively show that the prisoner is entitled to no relief …” 28 U.S.C. §2255. In the instant case, the medical records concerning Mr. Hanhardt’s condition, including his suicide attempt, the events leading up to the entry of the blind plea, and the information contained in the sworn affidavits submitted to this Court, clearly show that there was information known to Mr. Hanhardt’s attorneys which raised a bona fide doubt as to Mr. Hanhardt’s competency to enter a plea at that time. 1 Had Mr. Sullivan and Mr. Van Hoene made a request for a competency hearing there is more than a reasonable probability, based on the circumstances surrounding Mr. Hanhardt’s mental health, that this Court would have ordered a competency hearing. 2 3.

Mr. Hanhardt’s request for alternative relief, specifically that the Court

modify his existing sentence by vacating the finding that Mr. Hanhardt was responsible for the August 23, 1995, armed robbery of jewelry salesman Esagh Kashimallak which would make Mr. Hanhardt eligible for a transfer to a prison camp is not moot. While it is true, as the government states, that since this petition was filed, the Bureau of Prisons Camp in Oxford, Wisconsin no longer houses prisoners more than 70 years old, Mr. Hanhardt, who is 80 years old, is still eligible for a transfer to a different Bureau of Prisons Camp or at least a facility that is somewhere at least in the geographical vicinity of his home. Significantly, Mr. Hanhardt is no longer serving his time at the Bureau of Prisons Facility located in Waseca, Minnesota but rather has been transferred, not to a medical

1

The basis for Mr. Hanhardt’s position is set out in detail in Mr. Hanhardt’s §2255 Motion (Document 1) and in Mr. Hanhardt’s Reply to the government’s motion to dismiss (Document 18). 2 Mr. Hanhardt’s medical condition and mental state at the time he entered a blind plea is outlined in detail in his §2255 Motion (Document 1, his Reply (Document 18) and the Exhibits attached thereto.

2

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facility despite his declining health, but to FCI Englewood, a low security facility located in Littleton, Colorado, a distance of more than 1000 miles away from his home. 4.

It is Mr. Hanhardt’s position that his request for leniency should not be

denied based merely upon testimony elicited by a convicted felon, turned government informant during the Family Secrets trial. For the reasons stated in Mr. Hanhardt’s Reply to the Government’s Motion to Dismiss, the allegation that sometime in the 1960s Mr. Hanhardt took $1000 per month and a new car every two years in bribes, should not be considered by this Court in determining whether Mr. Hanhardt is entitled to relief. 3 (Gov. Motion, page 26). 5.

As Mr. Hanhardt continues to serve his time, his health continues to

deteriorate. Mr. Hanhardt has been diagnosed with testicular cancer, which has resulted in three surgical procedures and the removal of both testicles and spermatic cord, congestive heart failure, spinal stenosis, and borderline emphysema. More recently, in 2005, Mr. Hanhardt informed this Court that his health has continued to decline. He has lost all of his bottom teeth on one side of his mouth and all of his top teeth on the opposite side of his mouth, creating significant problems with his ability to eat. He has also been diagnosed as suffering from an ulcer. Mr. Hanhardt’s medical conditions are not only serious, but also extraordinarily painful; he suffers daily oftentimes finding it impossible to simply stand up. This effort represents an important, and we feel meritorious, last opportunity to seek some relief.

3

There are several reasons that this allegation should not be considered by the court: (1) this allegation was never suggested at any point in the prosecution of Mr. Hanhardt; (2) the Government has failed to offer any corroborative evidence to this allegation other than “guilt by association”; (3) Mr. Hanhardt was never given notice of this witness, the opportunity to confront or cross-examine the witness who is a convicted felon, turned government informant; and (4) the allegation is a hearsay summary quoted from a local newspaper article. (Reply, page 17).

3

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Respectfully Submitted,

/s/Jeffrey B. Steinback Jeffrey B. Steinback

JEFFREY B. STEINBACK 53 West Jackson Blvd Suite 1420 Chicago, IL 60604 (847) 624-9600

4

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United States District Court for the Northern District of Illinois Revised 03/11/2008 Case Number: 07C2542

Assigned/Issued By: NF

Judge Name:

Designated Magistrate Judge:

FEE INFORMATION

Amount Due:

$350.00

$39.00

$5.00

IFP

No Fee

Other _____________

$455.00 Number of Service Copies ___________

Date: ______________________

(For use by Fiscal Department Only)

Amount Paid: 455.00 _______________

Receipt #: 4624021414 __________________

5/7/9 Date Payment Rec’d: _____________

NF Fiscal Clerk: ________________

ISSUANCES Summons

Alias Summons

Third Party Summons

Lis Pendens

Non Wage Garnishment Summons

Abstract of Judgment ___________________________ ___________________________

Wage-Deduction Garnishment Summons

(Victim, Against and $ Amount)

Citation to Discover Assets Writ _______________________ (Type of Writ)

Other _______________________ _______________________ (Type of issuance)

______Original and __________ copies on ________________ as to ____________________________ (Date) ____________________________________________________________________________________ ____________________________________________________________________________________

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