Court tosses ex-Fishers executive’s wire fraud appeal

A man who pleaded guilty to fraudulently wiring money from his Fishers employer to his personal bank account couldn’t convince the 7th Circuit Court of Appeals that his circumstances presented a due process exception to the rule that most written appeal waivers are effective.

Curtis Johnson, a former financial executive for subsidiaries of Tuttle Aluminum, pleaded guilty to wire fraud after he was discovered to have defrauded company. Over the course of three years, Johnson used the company’s funds and credit card for personal expenses and wired money directly from its bank account into his personal bank account. He also obtained company loans from which he skimmed some proceeds.

Upon discovery of the crimes, Johnson was fired, but the business ultimately closed. Johnson admitted to one count of wire fraud for the dismissal of the remaining seven counts, and his plea agreement contained an appeal waiver. The agreement provided that Johnson owed restitution totaling $211,428.80.

He disputed that amount, but never offered an alternative restitution figure. Before Johnson’s guilty and sentencing hearing, the district judge met with counsel for both the government and defendant off the record and later stated on record during the hearing that the restitution amount issue was no longer in dispute.

Johnson agreed, and was then sentenced to 21 months in prison. He was further ordered to pay the provided restitution amount, plus interest. In an appeal of his sentence, Johnson argued that he was “sentenced unconstitutionally” and that the off-the-record conference was an integral part of his sentencing hearing. Thus, his absence from the meeting violated his constitutional right to be present at sentencing.

Additionally, Johnson asserted he did not waive any arguments about the restitution or his right to attend the in-chambers conference. But the 7th Circuit Court of Appeals dismissed his appeal, upholding the agreement’s appeal waiver in USA v. Curtis L. Johnson, 18-2350.

Finding his circumstances did not fall into a due process exception to the appeal waiver, the 7th Circuit rejected Johnson’s assertions to the contrary.

“Johnson also contends he focused his energies and defense on the restitution debate, so that issue must be of a constitutional magnitude,” Circuit Judge Michael Brennan wrote. “But due process violations do not turn on a defendant’s subjective valuation of the alleged error. Rather, to resurrect a right to an appeal this court has recognized ‘fundamental errors.’ But this case does not present any of the recognized examples of procedural defects marring a sentence with fundamental error, such as a sentence based on the defendant’s race, or which exceeds the statutory maximum for the defendant’s particular crime.”

In addition to finding no fundamental error, the 7th Circuit observed Johnson never objected to his absence from the in-chambers meeting or to the court’s statement that the restitution dispute had been resolved.

“Indeed, shortly after Johnson was placed under oath, he expressly agreed to the precise restitution amount of $211,428.80. So even if the appeal waiver did not preclude this argument, the record of the plea and sentencing hearing shows Johnson deliberately abandoned his position that the restitution figure should be less,” the panel concluded.

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