The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-2833 & 03-2472
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DWIGHT D. LARSON, also known as
DENNIS LARSON, and PAUL E. PALMER,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 01 CR 20041—Michael P. McCuskey, Chief Judge.
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ARGUED APRIL 6, 2005—DECIDED AUGUST 5, 2005
____________
Before BAUER, RIPPLE, and WOOD, Circuit Judges.
BAUER, Circuit Judge. A grand jury in the Central
District of Illinois indicted Dwight Larson and Paul Palmer
in May 2001 for their involvement in a tax evasion scheme.
Larson caught wind of the grand jury investigation and fled
the area prior to being indicted. He was arrested in October
2001 in Florida where he was living under an assumed
name and using a false social security number. Larson
pleaded guilty to conspiracy to defraud the United States
Department of Treasury, perjury, and willfully making and
2 Nos. 02-2833 & 03-2472
subscribing fraudulent income tax returns. Palmer pro-
ceeded to trial pro se and was convicted on all counts. On
appeal, Larson challenges the district court’s denial of a
downward adjustment for acceptance of responsibility and
seeks a remand for resentencing on the basis of United
States v. Booker, 125 S.Ct. 738 (2005). Palmer requests
reversal of his conviction under the Speedy Trial Act and
advances a Booker challenge. For the reasons stated herein,
we affirm Palmer’s conviction, remand his case for
resentencing, and order a limited remand with respect to
Larson’s sentence.
I. Background
Larson and Palmer were central figures in a conspiracy to
avoid or minimize taxes owed by themselves and others.
The basic tack was to avoid reporting income and paying
corresponding federal income taxes by hiding assets in a
series of sham trusts. The defendants’ clients would open
bank accounts in the names of these trusts and transfer
assets to the accounts. Instead of ceding control of the trust
assets, which would shift the incidence of taxation from the
grantor to the trust, the clients retained full control over
the trust assets. See 26 U.S.C. §§ 641, 671-79. But they did
not report the income from the nominal trust assets and
thereby evaded taxation on the income. Defendants also
filed tax returns on behalf of the trusts in which the
payments ultimately funneled back to their clients were
deducted from the trust income. According to the govern-
ment, the scheme cost the Internal Revenue Service at least
$2.6 million.
Both defendants played important roles in the scheme.
Palmer recruited clients, prepared trust papers, and set up
the bank accounts. Larson, who operated Larson
Accounting, Inc., in Charleston, Illinois, served as the ac-
countant for the clients. He filed returns designed to con-
Nos. 02-2833 & 03-2472 3
ceal the fiscal reality of the transactions, and also opened
accounts, set up trusts, and recruited clients. In exchange
for their services, defendants received hundreds of thou-
sands of dollars in direct compensation and Palmer was
“loaned” millions more, which he may or may not have
repaid.
In late 1995, Larson began encouraging clients to use
foreign trusts to decrease their taxes. The foreign trusts
were nothing more than trust names with addresses in for-
eign countries. Larson knew that his clients were retaining
control over the trust assets by either not sending any
money to the foreign accounts or only sending money for a
short period of time. Larson also knew that income taxes
should have been paid on the money claimed to exist in the
foreign trusts.
Larson prepared individual tax returns, corporate tax
returns, and trust tax returns on behalf of clients. The
individual and corporate tax returns contained false ex-
penses and deductions and failed to report taxable income.
The trust and foreign trust returns falsely represented that
the taxable income was distributed to foreign entities when
the income was actually still controlled by the taxpayer.
During the grand jury investigation, a subpoena was
served on Larson for “[a]ny and all books and records of any
type related to income and expenses for the business known
as Larson Accounting, Inc. for the period 1/1/93 to [4/5/00].”
Larson did not provide any pre-1996 records and later
falsely testified under oath that such records had been
destroyed in the ordinary course of business. In fact, there
was no office policy of regular record destruction and some
records from the years in question were discovered at a
storage facility where Larson Accounting kept its records.
When Larson was informed in August 2000 that he was a
target of the grand jury investigation, he sold his business
and other property and moved to Florida, where he lived
4 Nos. 02-2833 & 03-2472
under an assumed name and used a false social security
number. Larson was arrested in Marathon, Florida, in
October 2001, five months after he and Palmer were
indicted. In January 2002, he pleaded guilty to three counts
in the indictment: Count 1, conspiracy to defraud an agency
of the United States in violation of 18 U.S.C. § 371; Count
8, willfully making and subscribing a fraudulent tax return
in violation of 26 U.S.C. § 7206(1); and Count 13, knowingly
making false declarations under oath in violation of 18
U.S.C. § 1623. The district judge sentenced Larson to 55
months’ imprisonment and three years of supervised
release, and ordered Larson to pay $701,513 in restitution.
Larson served his sentence and was released by the Federal
Bureau of Prisons on April 11, 2005. See http://www.bop.gov
(inmate locator).
Facing one count of conspiracy to defraud a United States
agency in violation of 18 U.S.C. § 371 and six counts of
aiding and assisting the filing of false federal income tax
returns in violation of 26 U.S.C. § 7206(2), Palmer opted to
test the government’s evidence at trial. The trial date was
continued several times for reasons we will explain below.
A jury ultimately found Palmer guilty on all seven counts
after an eight-day trial in May 2002. The district judge im-
posed a sentence of 108 months’ imprisonment, three years
of supervised release, a fine of $150,000, and restitution in
the amount of $1,369,662. This appeal ensued.
II. Discussion
The only substantive issue on appeal is Palmer’s Speedy
Trial Act challenge. The Act provides that no more than 70
days may elapse between arraignment and the commence-
ment of trial. 18 U.S.C. § 3161(c)(1). However, certain
periods of time between arraignment and trial are excluded
from the Speedy Trial calculation. 18 U.S.C. § 3161(h).
Importantly for our purposes, “[a]ny period of delay result-
Nos. 02-2833 & 03-2472 5
ing in a continuance . . . [is excluded] if the judge granted
such continuance on the basis of his findings that the ends
of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.”
18 U.S.C. § 3161(h)(8)(A). “Absent legal error, exclusions of
time cannot be reversed except when there is an abuse of
discretion by the court and a showing of actual prejudice.”
United States v. Hemmings, 258 F.3d 587, 593 (7th Cir.
2001).
We begin with a procedural timeline to frame Palmer’s
argument. Palmer was arraigned on September 12, 2001,
and his joint trial with Larson was set to commence on
November 19, 2001. As of October 4, 2001, however, Larson
was still at large. The government moved to continue the
trial date until December, with the suggestion of an interim
status conference for an earlier trial if Larson’s custody
status changed. The government argued that the delay
period would not count under the Act due to the absence of
a codefendant and because no motion for severance had
been granted. See 18 U.S.C. § 3161(h)(7). The district court
granted the motion in part, setting a new trial date for
November 26, 2001, and finding that the extra time was an
excludable delay under the Act. Larson was arrested in
Florida on October 18, 2001, and arraigned in the Central
District of Illinois on November 19, 2001. After Larson’s
arrest but before his arraignment, the court granted a mo-
tion to continue filed by Palmer. Palmer, who at the time
was represented by counsel, described the case as “very
complicated and complex” and requested a ruling “ordering
the jury trial to commence no sooner than March 1, 2002.”
Palmer’s Appx. at 3A, 3C. The district court conducted a
hearing on the matter, entertained Palmer’s views on de-
laying the trial, and reset the trial date to February 11,
2002. The judge specifically found that the time was
excludable under the Act because it was in the interests of
justice to permit defense counsel more time to prepare for
6 Nos. 02-2833 & 03-2472
trial. Palmer does not question the propriety of either of the
foregoing continuances or the district court’s rulings that
the resulting delays were excludable under the Act.
On February 1, 2002, the district court held what was to
be Palmer’s final pre-trial conference. At the conference,
Palmer expressed dissatisfaction with the Federal
Defender’s Office’s handling of his case, asked to represent
himself, and requested a three-month continuance to give
himself time to review all of the discovery and prepare for
trial. Palmer Tr. 92-96, 128-29. After a colloquy during
which the district court strongly advised Palmer against
representing himself, the court found that he had knowingly
and willingly waived his right to counsel and continued the
trial date until May 13, 2002. In granting the continuance,
the district court did not specifically find that the delay was
excluded under the Speedy Trial Act. On May 2, 2002,
Palmer filed a motion to dismiss the indictment based on
his claim that more than 70 non-excludable days had passed
prior to the commencement of trial. According to Palmer,
the Speedy Trial clock began on February 2, 2002, the day
after the third continuance was granted, and 89 days had
elapsed as of the filing date of his motion.1 The district
court denied Palmer’s motion at a May 8, 2002, hearing. At
that hearing, the court specifically found that the period
from February 2, 2002, until May 13, 2002, did not count as
time under the Act because it qualified for the interests of
1
In the typical joint trial, the Speedy Trial clock begins when the
last codefendant is arraigned. United States v. Baskin-Bey, 45
F.3d 200, 203 (7th Cir. 1995) (citing Henderson v. United States,
476 U.S. 321, 323 n.2 (1986)); 18 U.S.C. § 3161(h)(7). In this case,
that would be November 19, 2001, the date of Larson’s arraign-
ment. But no time ran from Larson’s arraignment up until at least
the February setting because, shortly prior to his arraignment,
the district court continued the trial and excluded the accompany-
ing delay.
Nos. 02-2833 & 03-2472 7
justice exclusion. Palmer challenges this ruling on appeal,
arguing that his conviction must be reversed because he
was “sandbagged” by the district court’s exclusion of that
time. The government contends that the district court’s
findings at the February 1, 2002, hearing were sufficient to
exclude the delay under the Act.
Though the district court is not required to make Speedy
Trial Act findings contemporaneously with a continuance
order, United States v. Jean, 25 F.3d 588, 595 (7th Cir.
1994), the better practice is for the court to make the re-
quired findings at least prior to a defendant’s motion to
dismiss the indictment for a violation of the Act. See United
States v. Janik, 723 F.2d 537, 544-45 (7th Cir. 1983),
criticized on other grounds by Henderson, 476 U.S. at 328-
29. Nevertheless, Palmer is hardly in a position to complain
about the delay because he was the one who asked for it. As
related above, Palmer precipitated the delay by insisting on
proceeding pro se on the eve of trial in a relatively compli-
cated white collar case. Palmer himself observed in his first
motion to continue that the case involved “mountains of
discovery” housed in two government rooms and approxi-
mately eight computer hard drives. Palmer Appx. at 3B.
With this volume of discovery in mind, the district court
had little choice but to continue the trial when Palmer
jettisoned his attorney at the final pre-trial conference. As
we noted in a similar situation, “it is unfair of [the defen-
dant] to ask that the trial be delayed to suit her, implicitly
agree to the government’s request that time be excluded
because of her request, and then try to sandbag the govern-
ment by insisting that the time be counted against the
speedy trial clock.” United States v. Baskin-Bey, 45 F.3d
200, 204 (7th Cir. 1995). It also warrants mentioning that
the purpose of the Speedy Trial Act is to protect the defen-
dant from excessive pre-trial delay and incarceration by the
government and to protect the public’s interest in the
speedy resolution of justice. The Act was certainly not
8 Nos. 02-2833 & 03-2472
meant to hamstring a defendant by pushing him into trial
unprepared, which “skews the fairness of the entire sys-
tem,” Barker v. Wingo, 407 U.S. 514, 532 (1972), or to
permit opportunistic behavior by defendants who request
continuances for their benefit and then seek to have the
accompanying delay count against the 70-day limit. In the
circumstances of this case, we do not find the timing of the
district court’s findings to be problematic.
Moreover, Palmer cannot establish that he was prejudiced
by the delay. “Prejudice is caused by delays intended to
hamper defendant’s ability to present his defense.” United
States v. Wiehoff, 748 F.2d 1158, 1160 n.2 (7th Cir. 1984)
(citation omitted). In this case, the delay did not impede his
defense, it had the opposite effect: it allowed him the time
necessary to present a defense. Palmer does not provide the
prejudice link in his brief, probably because it is clear that
the district court had Palmer’s best interests in mind when
it granted his motion to continue. Given Palmer’s failure to
show prejudice, we have no basis to reverse the district
court’s exclusion of the delay associated with the third
continuance.
Palmer also argues that the district court unconstitution-
ally enhanced his sentence on the basis of factual findings
that were neither admitted nor proven to a jury beyond
a reasonable doubt. Specifically, Palmer notes that his
sentence was enhanced by the district court’s findings with
regard to tax loss, obstruction of justice, use of sophisticated
means to conceal the offense, role in the offense, and receipt
of a substantial portion of income from a fraudulent scheme.
Because Palmer raised this issue below by challenging the
district court’s sentencing enhancements on the basis of
Apprendi v. New Jersey, 530 U.S. 466 (2000), the govern-
ment has the burden on appeal of establishing that the
error was harmless. United States v. Olano, 507 U.S. 725,
734-35 (1993); FED. R. CR. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial
Nos. 02-2833 & 03-2472 9
rights must be disregarded.”). The government does not
attempt to make this showing; it admits that the district
court’s factual findings run afoul of the Sixth Amendment
principles explained in United States v. Booker, 125 S.Ct.
738 (2005), and concedes that a full remand is the appropri-
ate remedy. Gov’t Brief at 25. We agree and accordingly
vacate Palmer’s sentence and remand for resentencing.2
United States v. Schlifer, 403 F.3d 849, 855 (7th Cir. 2005);
United States v. McGee, 408 F.3d 966, 987 (7th Cir. 2005).
Larson appeals the district court’s denial of an acceptance
of responsibility adjustment and advances a Booker claim.
Before addressing the merits of his arguments, we must
determine whether Larson’s recent release from prison has
mooted his appeal. Though his imprisonment is over, Larson
remains on supervised release, which is a form of custody.
United States v. Trotter, 270 F.3d 1150, 1152 (7th Cir.
2001). Larson correctly points out that the case is not moot
if the judge on remand would have discretion to shorten his
supervised release. Trotter, 270 F.3d at 1152-53. Larson’s
three-year term is at the statutory and guidelines maxi-
mum for his offenses. 18 U.S.C. § 3583(b) (three-year
maximum, no mandatory minimum); U.S.S.G. § 5D1.2(a)(2)
(three-year maximum, two-year minimum). With irrelevant
exceptions, the statutory scheme makes the imposition of
supervised release discretionary, 18 U.S.C. § 3583(a), and
the sentencing guidelines are now merely advisory. Booker,
125 S.Ct. 738. Because the district court has the discretion
to shorten Larson’s supervised release, the case is not moot
so we proceed to the merits.
Larson’s challenge of the district court’s denial of an
acceptance of responsibility adjustment is unavailing. The
2
Palmer contends that the indictment must be dismissed due to
these sentencing errors. This is incorrect. Errors in sentencing are
remedied by resentencing rather than dismissal of indictments or
reversal of convictions.
10 Nos. 02-2833 & 03-2472
government did promise to recommend an acceptance of
responsibility adjustment in the plea agreement, but the
agreement qualified the promise by providing that the gov-
ernment could change its position if Larson subsequently
demonstrated a lack of acceptance of personal responsibil-
ity. Larson Plea at 6. Based on an April 2002 meeting with
a government agent where Larson attempted to shift the
blame for the fraud to his clients (the meeting convinced the
government not to call Larson as a witness at Palmer’s
trial), the district court found that Larson had not accepted
responsibility. This finding was not clearly erroneous.
Larson also attacks his sentence on the basis of Booker,
correctly noting that the district court unconstitutionally
enhanced his sentence based on factual findings regarding
use of sophisticated means, role in the offense, and obstruc-
tion of justice. Unlike Palmer, Larson did not bring this
issue to the district court’s attention by objecting at his
sentencing. This forfeiture means that we may only correct
the error if Larson demonstrates that it was plain error
under Rule 52(b) of the Federal Rules of Criminal Proce-
dure. Olano, 507 U.S. at 732-37. In United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005), we explained that
the plain error analysis as it relates to Booker errors
depends on whether the district judge would have imposed
the same sentence had he known that the guidelines were
merely advisory, which is a question that only the sentenc-
ing judge can answer. Id. at. 483-84. Consequently, we will
order a limited remand in accordance with the procedure
outlined in Paladino. Id. at 484-85. We will vacate and
remand the case for resentencing if the judge states that he
would have given Larson a lighter supervised release term
or otherwise imposed a different sentence had he known
that the guidelines were advisory. Id. If, on the other hand,
the judge states that he would reimpose the same sentence
even under an advisory sentencing regime, we will affirm
the original sentence provided that it is reasonable. Id.
Nos. 02-2833 & 03-2472 11
III. Conclusion
For the reasons stated herein, we affirm Palmer’s con-
viction, vacate and remand his case for resentencing, and
order a limited remand with respect to Larson’s sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-5-05