Ex-Indianapolis attorney and convicted fraudster William Conour may have yet another day in court, nearly four years after he was sentenced to 10 years in prison for stealing $6 million from three dozen clients and more than 18 months after he was resentenced to the same term.
The 7th Circuit Court of Appeals heard Conour’s latest appeal Tuesday, and two of the three judges on the panel said they believed the case must be remanded a second time for resentencing, even while acknowledging doing so may be a pointless exercise or perhaps risk an even longer sentence.
Circuit Judge Ilana Rovner told assistant U.S. attorney Jason Bohm in the Central District of Illinois that the court “would just have to change the law of our circuit” in order to let Conour’s resentencing stand, because she said Conour was not permitted to speak prior to imposition of his resentencing. Yet she added, “I’m as certain as you are that it’s a waste of time.
“… You get a chance to allocute in our system,” Rovner said. “Conour was not given that opportunity. … It pains me, and it pains you, I believe, to think it needs to go back. But I don’t know how to get past that.”
Judge Diane Sykes likewise told Bohm, “the case law is what it is,” and criticized Conour’s resentencing on remand as “Alice in Wonderland … verdict first, trial afterward.”
Conour’s sentence was originally remanded in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), which struck down as overbroad certain standard conditions of post-sentence supervised release. Because the Thompson conditions had been imposed on Conour, Bohm urged the 7th Circuit to render a decision that found any error to be harmless and not requiring another remand.
“Yes, the district court said at the very beginning, ‘I think 10 years is the right sentence, I got it right the first time,’” Bohm said. “But then he does say before the technical imposition of sentence, ‘Mr. Conour, is there anything else you want to say to the court?’ He opened it up to him, and Mr. Conour got to talk about what he did in prison, and why he thought a lesser sentence was appropriate … So we don’t think there’s any reason to send this case back.”
Representing Conour, federal public defender Michelle Jacobs told the court the government had conceded trial court errors during resentencing. Under Thompson and other 7th Circuit case law, she said, the district court at resentencing “had the authority to alter any aspect of the sentence on remand, and the defendant repeatedly asked the court to do that,” she said.
“At his peril,” Sykes interjected, suggesting the possibility that the government could have sought a longer sentence if all issues were open to review. Prosecutors at Conour’s original sentencing asked for a 20-year term after he pleaded guilty to a wire fraud charge and agreed to make restitution of more than $6.5 million to his victims.
Jacobs said she understood that, but said, “because resentencing was not procedurally sound, that the sentence should be vacated and the case remanded.”
Presiding Judge Michael S. Kanne, though, doubted the need to remand. “Does the defendant change how much was embezzled and how many people were embezzled?” he asked. “Practically, realistically, why in the heck should we send this case back?” Jacobs said Conour was not able to challenge conduct that the court found was relevant to his conviction but that wasn’t criminal, for instance.
But Sykes cautioned that pursuing such arguments might disadvantage Conour. Young, she said, “has made it clear than an argument like that would be perceived as backpedaling on (Conour’s) acceptance or responsibility,” she said. “So that’s not going to help him, to have this issue aired in a more complete way.”
Nevertheless, Jacobs said the fairness of the resentencing process had been undermined. She urged the court to “vacate the sentence and hopefully, for the last time, remand for a complete resentencing where Mr. Conour can raise these issues and will be given a right to allocution.”
Bohm urged the court not to do so. “It’s torturous, frankly, for the victims of Mr. Conour to have to go through this again,” he said. He urged the court to “craft a remedy that doesn’t torture anyone any longer in this case.”
Oral arguments in the case may be heard here.