COFFEY, Circuit Judge.
Defendant-appellant Leland L. Studley appeals from his conviction for knowingly disposing of property pledged to the Farmers Home Administration, in violation of 18 U.S.C. §§ 658 and 2. We affirm.
I. FACTUAL BACKGROUND
Leland L. Studley and Donald Schneeman both received loans from the Farmers Home Administration and were required to pledge security.
In early December 1982, Schneeman sold some of his pledged crops to the Pillsbury Company, and, in return, received a check in the amount of $8,068 made out to the FHA and himself. Schneeman cashed the check and later, when discussing the sale with the bank president, admitted to having forged the FHA endorsement on the check.
In 1984, all of Schneeman's farm equipment, except his pledged combine, grain head and corn head, was repossessed. Studley contacted Ken Hill, the general manager for H & W Equipment Co., a farm implement dealer located in LaCenter, Kentucky, and discussed trading in Schneeman's pledged combine, grain head, and corn head. However, Studley did not inform Hill that the equipment was the property of Schneeman and pledged to the FHA. Hill, while inspecting the equipment, made note of the serial numbers on the machines. Hill checked the County records to ascertain whether the equipment was pledged but failed to find any recorded lien since his search was limited to the name of Studley as he had no knowledge of Schneeman's financial interest in the chattel. Hill determined that the trade-in value of the equipment was $32,600 and, finding no recorded lien from his search of the records, accepted the equipment as a down payment for a new combine.
James Harris, the FHA agent who had the responsibility of making periodic checks of pledged property, learned that ownership of the combine, grain head and corn head had been transferred through a sale. A visual inspection of Schneeman's farm and an examination of a financing statement filed in the county records in Studley's name raised Harris' suspicions that the combine that belonged to Schneeman and the FHA had been traded in. In December 1984 Harris contacted H & W Equipment and was informed that the serial number on the traded-in combine was the same as that listed on the financing statement for the combine that Schneeman owned subject to an FHA financing agreement.
Harris did not speak with Studley about the combine until March of 1985, and in a discussion on March 14, 1985, Studley refused to answer Harris' question concerning the source of the down payment for Studley's newly purchased combine. Later, in that same month, Studley told Harris that he purchased the new combine with the understanding that the company would repurchase it and lease it back. Over a year later, in April 1986, Studley explained to Harris that he had traded-in Schneeman's combine, grain head, and corn head for a new four-wheel drive combine.
After Studley failed to make payments on the new combine, he agreed with Hill to return it, but strangely, when Hill attempted
Thereafter, Studley and Schneeman were each indicted on one count of disposal of property pledged to the FHA, in violation of 18 U.S.C. § 658 and 18 U.S.C. § 2, in connection with the trading-in of the combine, grain head and corn head. Three additional counts of the indictment charged Schneeman with various crimes associated with his sale of the pledged soybeans and forgery of the required FHA endorsement on a check. Following trial Studley and Schneeman were convicted on all counts, were each sentenced to terms of confinement of 18 months and were jointly and severally ordered to make restitution in the amount of $32,600 within 28 months of the judgment of conviction.
Studley, on appeal, argues that the district court erred in (a) denying Studley's motion for a continuance, (b) denying Studley's motion for severance, (c) denying Studley's motion in limine to suppress evidence of his earlier sale of grain through a third party, (d) allowing the government to cross-examine him concerning his renunciation of the laws of the United States, (e) ordering restitution in the amount of $32,600, and (f) denying Studley's motion for judgment of acquittal.
II. MOTION FOR CONTINUANCE
Studley contends the trial court committed error in denying his motion for continuance, arguing that defense counsel needed additional time to contact witnesses and otherwise prepare a defense.
Studley was arraigned and waived his right to counsel on January 28, 1988. On February 12, 1988, Studley and co-defendant Schneeman, who also proceeded to trial pro se, filed the first of a number of motions. The court scheduled a final pretrial conference for March 1, 1988, and, upon Studley's non-appearance, a warrant issued for his arrest. On March 2, 1988, Studley appeared in court and was again advised of his right to counsel and once more waived his right to counsel, stating that he wished to proceed without representation. At this time, the court appointed attorney Steven Katzman to act as standby counsel and rescheduled the final pretrial conference for March 4, 1988. Studley and Schneeman filed a joint motion for continuance at this time, asking for additional time to review certain records and prepare a defense. The court granted the motion, moving back and rescheduling a final pretrial conference for March 31, 1988, with the trial set for April 11, 1988.
At the final pretrial conference all parties stated they were prepared for trial and the original trial date was adjourned until May 23, 1988. The court directed standby counsel to prepare jury instructions on behalf of Studley and Schneeman. On May 16, 1988, one week prior to trial, the trial judge heard standby counsel's argument on Studley's motion for a continuance. According to the transcript of the May 16, 1988, hearing on the motion, standby counsel informed the court that Studley had advised him the previous day that Studley had retained counsel to represent him during trial. Counsel explained that he did not feel he had sufficient time to line up the witnesses (lay and expert) he felt necessary to the appellant's case. The court responded:
In United States v. Bush, 820 F.2d 858 (7th Cir.1987), we described the standard of review we apply to a district court's rejection of a motion for continuance:
(Citing United States v. Uptain, 531 F.2d 1281 (5th Cir.1976)).
Applying the Blandina factors, initially it should be noted that Studley played a significant role in determining the time within which counsel was required to prepare a defense. The filing of the motion for a continuance is directly attributable to Studley's insistence on proceeding pro se until the week before trial, despite the trial court's timely and repeated recommendation that he accept appointed counsel and its pointed admonition and warning that a decision to proceed with counsel on the eve of trial would not serve as grounds for continuance.
III. MOTION FOR SEVERANCE
Studley maintains that he was prejudiced as a result of being jointly tried with Schneeman and that his trial should have been severed from Schneeman's pursuant to Fed.R.Crim.P. 14.
United States v. Diaz, 876 F.2d 1344, 1357 (7th Cir.1989) (quoting United States v. Moya-Gomez, 860 F.2d 706, 754 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989)) (footnote and citations omitted).
Furthermore, it is well settled that there is a "strong public interest in having persons jointly indicted tried together...." United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985) (quoting United States v. Papia, 560 F.2d 827, 836-37 (7th Cir.1977)). As we explained in United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.), cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987):
Initially, Studley contends that severance should have been granted because the jury could have improperly attributed the evidence presented against co-defendant Schneeman to Studley. In support of this argument he notes that Schneeman was charged in all counts of the four count indictment, alleging multiple frauds upon the FHA, while Studley was charged in only one count, alleging a single unauthorized disposal of FHA mortgaged property.
876 F.2d at 1357.
The trial court gave the following instructions explaining the charges of each of the defendants individually and requiring that the jury make separate findings as to each defendant's innocence or guilt as to each count charged:
We are convinced that neither the charges against Studley and his co-defendant nor the evidence presented during trial was so complex and intertwined that reasonably intelligent persons serving on the jury as voir dired before trial would be incapable of following the court's instructions and rendering a separate determination as to each defendant's innocence or guilt on each count charged against the individual defendant in the indictment. We are convinced, based upon our review of the trial testimony, including the jury instructions, that Studley's argument is nothing but unfounded speculation since it was virtually impossible for the jury to utilize the evidence against Schneeman to convict Studley. The vast majority of the evidence presented at trial concerned Studley's intent and role in disposing of Schneeman's combine. The direct evidence offered relating to Schneeman's activities under counts 2, 3 and 4 of the indictment had very little possible application to the question of intent relevant to Studley's activity under count 1. Further, the evidence presented on count 1 primarily concerned Studley's intent rather than Schneeman's. Thus, the phantom ofttimes alleged "spill over effect" is purely illusory, as is the defendant's speculation that the jury disregarded
Studley also argues that joinder was prejudicial because he was deprived of co-defendant Schneeman's testimony, as Schneeman exercised his Fifth Amendment right not to testify at trial. Had severance been granted, Studley submits that Schneeman would have testified on his behalf and corroborated Studley's testimony that Schneeman was unaware of the plan to sell the FHA mortgaged combine and that Schneeman and Studley had not schemed together to sell it.
When a defendant seeks a severance to avail himself of allegedly exculpatory testimony from a co-defendant, a trial court should consider three factors:
United States v. Melton, 689 F.2d 679, 686 (7th Cir.1982) (citations omitted).
United States v. Pavelski, 789 F.2d 485, 491 (7th Cir.), cert. denied, 479 U.S. 917, 107 S.Ct. 322, 93 L.Ed.2d 295 (1986) (citations omitted).
"The mere possibility of a co-defendant's testimony is insufficient grounds for a severance." United States v. Kord, 836 F.2d 368, 373 (7th Cir.), cert. denied, 488 U.S. 824, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988). "To justify severance, a defendant must provide some support, such as an affidavit or recorded testimony, that his codefendant would testify in a manner which would exculpate him. Severance cannot be granted on the basis of a vague, unsupported assertion that a codefendant would testify favorably in a separate proceeding." United States v. Andrus, 775 F.2d 825, 847 (7th Cir.1985).
The substance of Studley's motion for severance was that a joint trial would "severely and irreparably prejudice" Studley. Studley did not allege that Schneeman would give exculpatory testimony were severance granted. He failed to make an offer of proof, and did not even present an affidavit in support of the proposition that Schneeman would give such testimony. Even now, Studley, in a feeble attempt to support his arguments, uses reverse logic and argues that "there would not be any reason" for Schneeman not to give exculpatory testimony in a trial of Studley alone. If Schneeman refused to testify in his own trial so as to not incriminate himself, why would he have testified in Studley's trial and thus subjected himself to thorough cross-examination and possibly self-incrimination? Thus, Studley has done nothing more than make a bald allegation of a mere possibility that Schneeman would give exculpatory evidence in a severed proceeding. We hold the district court did not abuse its discretion in denying Studley's motion for severance.
IV. MOTION FOR ACQUITTAL
Studley contends that the district court erred in denying his motion for acquittal on the grounds that the evidence was insufficient to convict him of knowingly disposing of property pledged to the FHA, in violation of 18 U.S.C. §§ 658 and 2. Specifically, Studley argues that there was no evidence presented demonstrating his knowledge that the combine and heads were pledged to the FHA. Studley in defense, stated that he had checked the records but was unaware that the combine was pledged to the FHA. He testified that he sold the combine without Schneeman's knowledge, while Schneeman was on vacation, believing that this would be of help to Schneeman.
"In evaluating [Studley's] sufficiency of the evidence challenge, we note that [he] bears a heavy burden." United States v. Diaz, 876 F.2d 1344, 1351 (7th Cir.1989) (quoting United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 808, 102 L.Ed.2d 798
United States v. Marquardt, 786 F.2d 771, 780 (7th Cir.1986) (quoting United States v. Beck, 615 F.2d 441, 448 (7th Cir.1980)) (quoting in turn United States v. Blasco, 581 F.2d 681, 684 (7th Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978)). "The inference of a defendant's guilt of a criminal offense may be created either by direct evidence or by circumstantial evidence and circumstantial evidence is of equal probative value to direct evidence." United States v. Towers, 775 F.2d 184, 188 (7th Cir.1985). "`Indeed, circumstantial evidence may be the sole support for a conviction.' United States v. McCrady, 774 F.2d 868, 874 (8th Cir.1985)." Marquardt, 786 F.2d at 780. Further, "all the reasonable inferences that can be drawn from the evidence [are reviewed] in the light most favorable to the government." Diaz, 876 F.2d at 1351 (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)).
Schneeman had pledged the combine, the corn and grain heads to the FHA and notice of the lien, in the form of a financing statement, was on file in the proper County Clerk's offices in both Pope and Massac Counties, Illinois.
When Studley contacted Ken Hill about trading in the combine and the two heads, he did not inform Hill that Schneeman was the true owner and Hill's record search did not reveal the lien since, as pointed out earlier in the opinion, Hill was searching under Studley's and not Schneeman's name. Harris, the FHA agent who discovered that Studley had traded in Schneeman's pledged combine and heads for new equipment, conversed with Studley on several occasions. In March of 1985, the FHA agent asked Studley where he got the down payment for the new combine, and Studley stood mute. Later on that month, Studley implied that it was purchased with the idea that the company would repurchase it and lease it back to him. More than a year thereafter, in April 1986, Studley admitted to Harris that he traded Schneeman's pledged combine in his own name. However, he noted that he had attempted to rescind the sale after he learned the combine had been pledged to the FHA.
A reasonable jury, viewing the evidence in the light most favorable to the government, could certainly conclude that Studley's failure to inform H & W Equipment either that Robert Schneeman owned the traded-in combine or that the combine had been pledged to the FHA, from Studley's attempts to conceal this sale from FHA representatives during the year 1985 and from Studley's previous dispositions of property pledged to the FHA, that Studley knowingly disposed of property pledged to the FHA. As noted in Section V, infra, Studley had disposed of grain pledged to the FHA in the same manner as he had disposed of Schneeman's combine, thus demonstrating Studley's knowledge of how to dispose of property pledged to the FHA without giving notice to the FHA, in violation of 18 U.S.C. §§ 658 and 2. Accordingly, we reject Studley's sufficiency of the evidence contention and conclude that the evidence, viewed in the light most favorable
V. MOTION IN LIMINE
The government sought to introduce evidence that Studley had on previous occasions sold grain through a third person in order to bypass the requirement of obtaining an FHA endorsement on the check that he received for the sale of the grain. Studley admitted that he did sell grain through a third person, but was of the opinion that this grain was not included under the financing statement since he obtained it as a result of a custom farming arrangement; that is, in exchange for work done on another person's farm. Studley moved in limine to exclude this evidence on the ground that it was "other acts" evidence and Rule 404(b) required its exclusion. The court denied Studley's motion in limine.
Studley alleges that the trial judge committed error in denying his motion in limine under Fed.R.Evid. 404(b).
Evidence of other crimes, wrongs or acts may be admitted under Fed.R.Evid. 404(b) upon demonstration that:
United States v. Zapata, 871 F.2d 616, 620 (7th Cir.1989). Studley, in effect, concedes that the government satisfied the first and third factors in the four-part test outlined above; and therefore, we need not address them. He directs our attention solely to the second and fourth factors, similarity of the acts and the prejudicial effect of the statement.
With respect to the second factor, Studley argues that the previous grain sale procedure was not similar to the transaction for which he was charged, as the grain involved in the previous sales was not pledged to the FHA, unlike the combine, grain head and corn head involved in the case at issue.
During the trial, Studley testified that he sold grain in another person's name to avoid having to get an FHA endorsement on the check since the purchaser of the grain would make out the check to Studley and the FHA regardless of whether or not the grain came from custom farming.
Here, the evidence of the prior grain sales was relevant to demonstrate that the defendant was familiar with the practice of selling property through third parties as a means of avoiding the requirement of obtaining FHA releases. The evidence was also relevant to demonstrate that the defendant had knowledge of how to dispose of pledged property while avoiding detection. With this in mind Studley traded in Schneeman's combine, grain head and corn head without having to reveal that Schneeman owned this farm machinery subject to an FHA lien. Studley's failure to disclose Schneeman's ownership of the farm machinery prevented Hill, the salesman of the new combine, from ascertaining that the traded-in equipment was pledged to the
We now turn to Studley's contention that the probative value of the evidence of the prior grain sales was substantially outweighed by the danger of unfair prejudice. Evidence of Studley's prior grain sales was probative of Studley's method and knowledge of selling property through a third party to avoid dealing with the FHA. This evidence was certainly relevant to establish that Studley traded the combine and heads knowing that they were pledged to the FHA. Further, the prejudicial effect of the evidence, if any, was limited since the court gave clear and appropriate cautionary instructions to the jury. These instructions required the jury to consider other acts evidence "only on the question of motive, intent, knowledge and absence of mistake or accident." "Because the defendant has presented no evidence to convince us otherwise, `[w]e make the crucial and valid assumption the jurors carefully follow instructions given them by the court.'" United States v. Shukitis, 877 F.2d 1322, 1329 (7th Cir.1989), (quoting United States v. Stern, 858 F.2d 1241, 1250 (7th Cir.1988)). Therefore, we hold that the district court did not abuse its discretion in admitting evidence of Studley's previous deceptive grain sales through a third party.
Studley also alleges the trial judge committed error in allowing the prosecutor to cross examine him regarding certain written statements he made in June and August of 1985 renouncing the laws of the United States, on the grounds that the prosecutor's inquiries lacked any probative value and were extremely prejudicial.
The controversy in issue began at the commencement of trial, when the prosecutor informed the court and defense counsel of his intention to introduce two documents signed by Studley captioned "Termination of Consent" and "Revocation of Power," dated June 1985 and August 1985, respectively, wherein Studley purported to announce that he was no longer bound by the laws of the United States. Studley mailed copies of the first document, the June 1985 "Termination of Consent," to a number of federal and state governmental officials including the President of the United States, the Governor of Illinois and the Pope County, Illinois, County Clerk. It is unclear whether the second document, the "Revocation of Power," was publicly disseminated. The prosecutor urged that these two documents were probative of Studley's state of mind and intent when he committed the crime charged in the indictment. Defense counsel filed a motion in limine to exclude the evidence, arguing that his client's attempts to renounce the laws of the United States were irrelevant to his state of mind at the time of the alleged crime when he traded co-defendant Schneeman's FHA mortgaged combine, for he (Studley) made the statements more than six months after trading the combine. The trial court granted Studley's motion in limine, with the caveat that "the government can, of course, bring [the statements renouncing the laws of the United States] out by way of cross examination or rebuttal" if Studley "opened the door" to admission of the statements.
During direct examination, Studley testified, over the government's relevancy objection, that he was a fourth generation farmer and had served four years on submarine duty in the United States Navy. He also stated that he felt sorry for the co-defendant Schneeman after Schneeman went through a farm foreclosure in the fall of 1984, and thought "there must be something that we can do to help [co-defendant Schneeman] get back on his feet again." Studley testified that he contributed $500.00, without expectation of repayment,
He also stated that he never intended to hurt anybody or to defraud the FHA when he traded Schneeman's combine and that all of his actions were in good faith.
At the conclusion of Studley's direct examination, the prosecutor argued that "the jury is left with the idea that this person is waving the banner, waving the flag ..." and had "painted a picture of goodness [and] light, so to speak, with regard to his motivations and actions here ... he has told the Court and told the jury all of these wonderful motivations that he has had when he is, in other documents, renouncing the United States government in its entire system. I think that is a relevant area of inquiry." The court, after reviewing and considering the issue, ruled in favor of the government, stating that the documents could not be introduced but that the government could inquire into the defendant's motives since the defendant gave testimony concerning the motivation for his actions.
On appeal, Studley emphasizes that his bitterness toward the government and his unilateral attempt to "revoke" his consent to the laws of the United States developed several months after he traded Schneeman's combine, in response to the foreclosure of his own farm in early 1985. He maintains that his feelings about the government during the summer of 1985 are irrelevant to his motivation or state of mind six months earlier, when he allegedly defrauded the FHA. He urges, therefore, that cross-examination on the question of his attempts to "revoke" his consent to the laws of the United States is irrelevant and prejudicial and should have been excluded.
"The `management of cross-examination is peculiarly committed to the district court's discretion.'" United States v. Castro, 788 F.2d 1240, 1244 (7th Cir.1986) (quoting United States v. Silva, 781 F.2d 106, 110 (7th Cir.1986)).
Rule 611(b) of the Federal Rules of Evidence, which governs the scope of cross-examination, provides:
Rule 608(b) provides:
"`"If a criminal defendant elects to testify in his own behalf, he may be cross-examined and his testimony impeached to the same extent as any other witness."' United States v. Kovic, 684 F.2d 512, 515 (7th Cir.1982)." United States v. Thompson, 806 F.2d 1332, 1338 (7th Cir.1986)." `He has no right to set forth to the jury all the facts which tend in his favor without laying himself open to cross examination.'" Id. (quoting Brown v. United States, 356 U.S. 148, 155, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958)) (quoting in turn Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 948, 44 L.Ed. 1078 (1900)). As the court stated in United States v. Palmer, 536 F.2d 1278, 1282 (9th Cir.1976):
The government did not inquire into this issue except during cross-examination as the court directed and required under Rules 611(b) and 608(b). Studley on direct examination stated that he had traded in the combine, together with the grain and corn heads, to help Schneeman and that his "pioneer blood" was a motivating factor in his quest to come to the aid of Schneeman. Although we recognize that Studley's attempts to renounce the United States government occurred after Studley committed the alleged criminal acts, the government's inquiry on cross-examination concerning Studley's attempts to renounce the laws of this country was relevant. Furthermore, this testimony is material in that these statements were made very near in time to the date of his alleged crime; thus he displayed his continuing anger toward the United States which might very well have been one of the motivating factors in his attempt to defraud the FHA. His (Studley's) statements reflect a "United States be damned, I will get even with them one way or another" attitude. The cross-examination was also proper since a person who feels he is no longer bound to obey the laws of the United States may very well also believe that he is no longer required to respect the solemnity of the oath administered when testifying in a court of law in the search for justice. The evidence was certainly relevant to the jury's judgment of Studley's credibility, and this relevance outweighed any possible prejudice to Studley.
We have recognized that the fact that Studley's alleged criminal acts predated his attempts to renounce the United States Government may limit the relevance of the evidence of these attempts to renounce the government. However, even if we were to conclude, which we do not, that the court committed error in permitting the cross-examination on the subject of Studley's attempts to renounce the government, we would still be required to determine whether or not the error was reversible. In examining whether a trial court error that does not violate the Constitution requires reversal, we apply
United States v. Grier, 866 F.2d 908, 920 (7th Cir.1989). The cross-examination concerning Studley's attempt to renounce the United States Government was minimal, consisting simply of a few questions regarding whether Studley had signed the
Studley also contends that the trial court abused its discretion in ordering that he make restitution in the amount of $32,600 during the time period set forth in the order.
We have consistently held that:
United States v. Vega, 860 F.2d 779, 800 (7th Cir.1988) (citations omitted). These rules of deference apply, as well, to restitution orders under the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3663 et seq. ("VWPA"). United States v. Mahoney, 859 F.2d 47, 49 (7th Cir.1988). Nevertheless, as we explained in Mahoney:
Section 3664(a) provides:
The question Studley raises is whether the trial court considered his financial resources, needs and earning ability, as § 3664(a) requires.
We have held that "where the defendant charges that the district judge failed to consider a mandatory sentencing factor [such as the defendant's financial needs, resources and earning ability] the appellate court must reverse where the defendant shows either (1) that the judge explicitly repudiated the mandatory factor, or (2) that it was not improbable that the judge failed to consider the mandatory factor and was influenced thereby." United States v. Gomer, 764 F.2d 1221, 1223 (7th Cir.1985).
During the sentencing hearing, defense counsel never mentioned, much less discussed, the propriety of restitution or any of the factors listed in § 3664(a), arguing only that Studley should not be sentenced to a prison term. For its part, the government recommended that Studley be found jointly and severally liable with Schneeman to make restitution in the amount of $32,600 — the amount the district court eventually imposed — because according to the government, the amount is equal to the value of Schneeman's combine when Studley traded it. The trial judge ruled, without specifically mentioning or discussing any of the factors listed in § 3664(a), such as the defendant's financial resources, needs, earning ability, and the defendant's dependents' financial needs and earning ability, that Studley and/or Schneeman make restitution of $32,600 to the FHA within eighteen months of the sentencing hearing. We wish to point out that the judge did state on the record that he would entertain a motion to extend the time of payment beyond eighteen months. But, this mere mention of the possibility of extension of time, without consideration of supporting data such as the financial needs and earning ability of the defendant and his family, is insufficient under the statute. See Peden, 872 F.2d at 1310-11; Mahoney, 859 F.2d at 49-52. Subsequently Studley filed a motion for reduction of sentence, requesting that the court eliminate or reduce the amount of restitution ordered, or allow Studley additional time to make the payment. The district court denied the motion, stating only that "the court further finds nothing in the record which would warrant at this time its eliminating or reducing the amount of restitution or in extending the amount of time defendant has to make restitution." The court did not address the salient question of how this defendant could possibly make restitution payment while confined in prison.
The district court failed to mention, much less apply, the factors, such as the defendant's financial resources, financial needs or earning ability, set forth in § 3664(a), either during the sentencing hearing or in his denial of Studley's motion for reduction of sentence. Thus, this case is analogous to United States v. Peden, 872 F.2d 1303, 1311 (7th Cir.1989), where we agreed with the defendant's contention
As we noted in Peden:
872 F.2d at 1311. We have little choice but to conclude, based upon the record before us, that it was not only improbable but highly probable that the court failed to
We were confronted with similar situations in both United States v. Mahoney, 859 F.2d 47 (7th Cir.1988) and United States v. Peden, 872 F.2d 1303 (7th Cir.1989). In Mahoney the district court ordered that the defendant make full restitution of over $288,000 within a five-year period. The record established that the defendant earned $600.00 per week, with which he supported himself and his dependent wife. Upon review of the record, we concluded that the district court had failed adequately to explain "how this defendant, a man without any tangible assets and a $30,000 annual salary — will somehow be able to repay a debt totally more than nine times his annual salary in five years." Mahoney, 859 F.2d at 47. In Peden the district court ordered that the defendant make restitution in the amount of $84,225.06, representing the amount of a loan and interest that Peden secured as a result of making a false statement to a federally insured bank. We concluded that the district court "abused its discretion in imposing the stated amount of restitution without taking into consideration the defendant's ability to pay after considering his debts and obligations, as well as those of his family." 872 F.2d at 1311.
As in Mahoney and Peden, the district court in this case failed to explain, and thus even consider, whether Studley's financial resources and earning ability would allow him to comply with the restitution order the court imposed.
Id. at 52.
Accordingly, we vacate the district court's order of restitution, and remand to the district court with directions to conduct a hearing to consider the factors of the defendant's and the defendant's dependents' financial resources, financial needs and earning ability set forth in 18 U.S.C. § 3664(a) and order restitution pursuant thereto.
The defendant's arguments in favor of reversing his conviction are without merit. The district court properly denied Studley's motion for continuance. Studley's delay in hiring counsel was the primary factor in reducing his counsel's preparation time and Studley has failed to demonstrate prejudice. After reviewing the record, we are convinced that the trial court is not guilty of an abuse of discretion in denying Studley's motion for severance. The alleged
AFFIRMED IN PART; VACATED IN PART; CAUSE REMANDED.