United States v. Christopher Jansen

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-1005

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER A. JANSEN,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 08-cr-50043 — Frederick J. Kapala, Judge.

____________________

ARGUED FEBRUARY 23, 2018 — DECIDED MARCH 7, 2018

____________________

Before FLAUM, SYKES, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Defendant Christopher Jansen

pleaded guilty to one count of wire fraud and one count of tax

evasion. He later sought to withdraw his guilty plea, arguing

it was not “knowing and voluntary” because of ineffective as-

sistance of counsel. The district court denied that motion,

holding that Jansen’s counsel was not ineffective. We affirm.

On the limited issue of restitution, we remand to allow the

2 No. 17-1005

district court to clarify that its imposition of restitution is a

condition of supervised release rather than a criminal penalty.

I. Background

A. The Conduct, Investigation, & Charge

Defendant Christopher Jansen was the president and

owner of Baytree Investors, Inc. (“Baytree”), an Illinois corpo-

ration that acquired trucking companies. In 2001, he learned

that Dean Foods intended to sell one of its subsidiaries, DFC

Transportation Company (“DFC”). DFC had millions of dol-

lars of receivables that could be used as collateral to borrow

money. Jansen created a Delaware corporation called DFCTC

Holdings, Inc. (“DFCTC”) for the sole purpose of purchasing

DFC. In January 2012, DFCTC purchased DFC for $4.5 mil-

lion, and Jansen issued DFCTC stock to officers and employ-

ees of DFC and Baytree investors.

After DFCTC purchased DFC, Jansen arranged for DFC to

use its receivables to borrow money and transfer money to

DFCTC. For instance, in 2002, $250,000 was transferred from

a DFC bank account to a DFCTC bank account. Jansen distrib-

uted the money from DFCTC to himself and others for per-

sonal use. He did not seek authorization from DFC or DFCTC

to make those transfers, and he did not disclose the transfers

to directors or shareholders of the corporations. To receive in-

come and disburse expenditures, Jansen and his business

partner, Gilbert Granet, used a bank account in the name of

an Illinois corporation, Talcott Financial Corporation (“Tal-

cott”), which was dissolved in 1999.

As of 2005, Jansen allegedly had not filed a personal in-

come tax return since 1996. Additionally, Baytree, Talcott, and

No. 17-1005 3

DFCTC had never filed corporate income tax returns or infor-

mational forms, and Talcott never issued Jansen any W-2 or

1099 forms. The tax due on Jansen’s unreported 2002 income

of $946,210.55 was $269,978.

At some point in 2003, the government initiated an inves-

tigation based on a tip by a former DFC employee. During the

initial stages of the investigation, Jansen was represented by

Michael Close. In 2005, Adam Bourgeois replaced Close. On

March 12, 2007, the Assistant United States Attorney

(“AUSA”) sent Bourgeois a letter to open plea negotiations.

For several months, Jansen discussed the charges and a pos-

sible plea agreement with Bourgeois.

On December 3, 2007, the government charged Jansen

with a two-count information: (1) wire fraud pursuant to

18 U.S.C. § 1343; and (2) income tax evasion pursuant to

26 U.S.C. § 7201. On January 14, 2008, the government dis-

missed the two-count information because the parties were

unable to reach a plea. Jansen then replaced Bourgeois with

attorney Jeffrey Steinback. At the time Steinback took over,

the government and defense had a strained relationship. Nev-

ertheless, Steinback resumed negotiations and met with the

AUSA, an IRS agent, and an FBI agent. On September 11,

2008, the government filed another two-count information

charging Jansen with the same offenses.

B. The Guilty Plea & Post-Plea Proceedings

In October 2008, Jansen and the government entered into

a written plea agreement. Jansen admitted his involvement in

the fraudulent DFCTC scheme and admitted he did not report

or pay income taxes in 2002. He also waived his right to chal-

4 No. 17-1005

lenge the wire fraud count on grounds that the five-year stat-

ute of limitations had lapsed. Additionally, Jansen agreed to

cooperate with the government; the government stated that if

Jansen provided “substantial assistance,” it would recom-

mend a sentence reduction under U.S.S.G. § 5K1.1. After a

Rule 11 hearing, the court determined Jansen’s plea was

knowing, voluntary, and supported by facts satisfying the el-

ements of the offenses. Jansen and the government agreed to

periodically continue sentencing to allow for Jansen’s contin-

ued cooperation. In January 2011, the government informed

Jansen that he had not provided “substantial assistance” and

therefore it would not make a recommendation to reduce his

sentence pursuant to U.S.S.G. § 5K1.1.

On September 12, 2011, Steinback moved to withdraw

from his representation of Jansen. He cited health concerns

and stated that his relationship with Jansen “had begun to de-

teriorate.” Steinback was replaced by Lawrence Beaumont,

who requested Rule 16 discovery and obtained 42,700 docu-

ments related to the case. On December 9, 2011, Jansen filed a

pro se motion to continue his sentencing proceedings because

none of his prior attorneys, including Steinback, had re-

quested or reviewed the Rule 16 documents. On February 2,

2012, Beaumont withdrew as well, citing irreconcilable differ-

ences; he was replaced by Stephen Richards. One week later,

Jansen indicated to the court that he wished to withdraw his

guilty plea. On April 6, 2012, Richards also withdrew. The

court permitted Jansen to proceed pro se.

On July 6, 2012, Jansen filed a motion to withdraw his

guilty plea. He asserted three bases: (1) the government’s

breach of the plea agreement; (2) ineffective assistance of

No. 17-1005 5

counsel on the part of attorney Steinback; and (3) prosecuto-

rial misconduct. Relevant to this appeal is only the ineffective

assistance of counsel claim. 1

C. Evidentiary Hearing

The court held an evidentiary hearing at which several

witnesses testified, including Steinback. Due to health issues,

Steinback’s testimony took place on six dates, including a sev-

enteen-month break during direct examination.

At his first direct examination, on February 8, 2013, Stein-

back maintained that his counsel was appropriate. He ex-

pressed a belief that he was hired specifically “to work on ne-

gotiating a plea agreement” because Jansen knew that he

“specialized in … negotiations and plea bargains.” His goal

was to get the “best outcome possible with respect to sentenc-

ing.” Especially due to the “strained” relationship between

Jansen and the government, Steinback believed that “cooper-

ation” with the government was required.

Steinback further explained that as a result of a “conflu-

ence of different items,” including information learned from

discussions with the AUSA, Granet, and Jansen himself,

Steinback discovered “[t]here was a very large investiga-

tion … [and] a belief on the part of the government that [Jan-

sen] had engaged in multiple areas of misconduct, not just the

areas that ultimately resulted in the guilty plea.” For instance,

Steinback believed there were “many years that [Jansen]

hadn’t filed tax returns” and “many years [Jansen] had en-

gaged in different businesses that the government contended

1 Jansenabandoned the breach of plea agreement claim and does not

appeal the district court’s rejection of the prosecutorial misconduct claim.

6 No. 17-1005

involved fraudulent misconduct.” Thus, Jansen’s strategy was

to “proceed with relative expediency with respect to the plea

[in order to] avoid [or] stop an investigation into a variety of

different entities that [Jansen] … had [at] one time been a part

of.” Steinback stressed his belief that if he could “expediently

resolve the plea,” the government would “not refer to or in-

clude any of those other matters as relevant conduct.”

As to Jansen’s allegations regarding Rule 16 discovery,

Steinback agreed it was routine to request discovery from the

government in this sort of case. He maintained, however, that

Jansen’s case “was not in a routine posture.” He concluded

that it was in Jansen’s “best interests” to not request discovery

because if the AUSA “delve[d] into all of the other investiga-

tive matters that he[] [was] willing to forego [sic],” he might

“rethink his position.” In short, Steinback stated:

I am a negotiator, and I told you that I would do

the absolute best job I could do for you, and it

was my judgment after speaking with the gov-

ernment that the best job I could do for you was

to negotiate a deal which cut [the government]

off. And did it require some good faith belief on

my part that [the AUSA] was telling me the

truth? Yes it did.

Steinback’s direct examination resumed on July 31, 2014.

This time, Steinback had a different tenor. He expressed a be-

lief that he had not provided adequate counsel. He reiterated

that he had his “reasons” for not reviewing the government’s

documents, but acknowledged that not doing so was a “short-

coming.” He stated that reviewing the documents would have

“made [his] understanding of the case fuller” and “dis-

charged [the] obligation to make … full investigations.”

No. 17-1005 7

On cross, Steinback confirmed that he had explained all

aspects of the plea to Jansen, including the statute of limita-

tions waiver. Steinback also stated he believed Jansen with-

drew his guilty plea because the government would not re-

quest a downward departure based on “substantial assis-

tance” under § 5K1.1.

Of added note for our purposes, Steinback also testified

about civil litigation between him and Jansen that occurred in

2012 and 2013. Jansen had filed two lawsuits and a complaint

with the Illinois Attorney Registration & Disciplinary Com-

mission (“ARDC”) against Steinback. In the first lawsuit, a

$39,000 default judgment was entered in favor of Jansen. On

April 1, 2013, Steinback and Jansen entered into a mutual re-

lease; Steinback would pay Jansen $52,500 to satisfy the de-

fault judgment, and Jansen would agree to dismiss the second

case. Steinback stated that he paid $19,500 of that $52,500.

Steinback further testified that in several e-mails between

April and July 2013, Jansen complained that Steinback had

not completed the default judgment payment. On September

10, 2013—following Steinbeck’s first direct examination—Jan-

sen sent an e-mail attaching a “proposed statement” based on

“the prospect of additional information that [Steinback was]

willing to provide.” Attached was a document titled “State-

ment of Jeffrey B. Steinback,” which admitted to rendering in-

effective assistance of counsel. Steinback stated that “addi-

tional information” meant “a conclusion [he] had drawn con-

cerning [his] shortcomings in connection with [his] represen-

tation … that [he] had not appropriately handled discovery.”

Steinback stated he did not sign the document because it

“would have falsely stated a number of things.”

8 No. 17-1005

On November 11, 2013, Steinback sent an e-mail to Jansen

expressing a desire to settle the civil actions. He wrote that he

did not believe he provided adequate representation and con-

cluded that Jansen could not have made a knowing and in-

formed guilty plea. Steinback testified at the evidentiary hear-

ing that he sent the e-mail because the civil litigation and

ARDC complaint forced him “to review and reconsider” his

representation. Shortly thereafter, Jansen sent Steinback an e-

mail reply that said “SEE ATTACHED PER OUR

AGREEMENT”; attached were draft orders dismissing the

civil actions. At the hearing, Steinback claimed he and Jansen

did not make any deal. Ultimately, Steinback never paid the

rest of the money owed under the mutual release, and Jansen

withdrew the ARDC complaint.

After the evidentiary hearing was completed, the district

court denied Jansen’s motion to withdraw his plea, holding

that Steinback’s conduct did not rise to the level of ineffective

assistance of counsel.

D. Sentencing and Judgment

The court held sentencing proceedings on December 14

and December 28, 2016. It sentenced Jansen to 70 months’ im-

prisonment and 3 years of supervised release. It also ordered

a restitution payment of $269,978 to the IRS for the 2002 tax

loss. However, despite recognizing at the hearing that restitu-

tion for a tax offense can only be a condition of supervised

release, the court issued a judgment which listed restitution

as a “criminal monetary penalty,” due during imprisonment.

This appeal followed.

No. 17-1005 9

II. Discussion

A. Withdrawal of Guilty Plea & Ineffective Assistance

of Counsel

“The longstanding test for determining the validity of a

guilty plea is ‘whether the plea represents a voluntary and in-

telligent choice among the alternative courses of action open

to the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quot-

ing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). “[A] de-

fendant does not have an absolute right to withdraw a plea

before sentencing.” United States v. Chavers, 515 F.3d 722, 724

(7th Cir. 2008) (quoting United States v. Carroll, 412 F.3d 787,

792 (7th Cir. 2005)). However, he “may withdraw a plea of

guilty … [if he] can show a fair and just reason for requesting

the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “Because the de-

fendant’s statements at the plea colloquy are presumed to be

true, the defendant bears a heavy burden of persuasion in

showing that such a fair and just reason exists.” Chavers, 515

F.3d at 724; see also United States v. Graf, 827 F.3d 581, 584 (7th

Cir. 2016) (“A defendant’s motion to withdraw is unlikely to

have merit if it seeks to dispute his sworn assurances to the

court.”).

“[P]lea bargains have become so central to the administra-

tion of the criminal justice system that defense counsel have

responsibilities in the plea bargain process … that must be

met to render the adequate assistance of counsel that the Sixth

Amendment requires in the criminal process at critical

stages.” Missouri v. Frye, 566 U.S. 134, 143 (2012); see also Lafler

v. Cooper, 566 U.S. 156, 163 (2012) (“During plea negotiations

defendants are ‘entitled to the effective assistance of compe-

tent counsel.’” (quoting McMann v. Richardson, 397 U.S. 759,

771 (1970))). Thus, “a plea, even one that complies with Rule

10 No. 17-1005

11, cannot be ‘knowing and voluntary’ if it resulted from inef-

fective assistance of counsel.” Hurlow v. United States, 726 F.3d

958, 968 (7th Cir. 2013). We apply the two-part Strickland test

to ineffective assistance of counsel claims in the plea bargain

context. Frye, 566 U.S. at 140. First, the defendant must show

deficient performance—“that counsel’s representation fell be-

low an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. 668, 688 (1984). Second, the defendant

must show prejudice—“that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

On review, “[w]e will uphold a district court’s factual find-

ings about the existence of a fair or just reason to withdraw

the plea unless they are clearly erroneous, and we will review

the district court’s ruling on the motion to withdraw for an

abuse of discretion.” Chavers, 515 F.3d at 724. Therefore,

“[r]eversals are rare, though not unheard of.” Graf, 827 F.3d at

583–84.

Here, the district court held Steinback’s counsel was not

ineffective, and thus, that Jansen’s plea was knowing and vol-

untary. This was not an abuse of discretion.

1. Performance

“The proper measure of attorney performance [is] simply

reasonableness under prevailing professional norms.” Strick-

land, 466 U.S. at 688. For Steinback’s performance to fall below

an objective standard of reasonableness, Jansen must show

that Steinback “performed seriously below professional

standards.” United States v. Williams, 698 F.3d 374, 386 (7th Cir.

2012). Our “scrutiny of an attorney’s performance is ‘highly

No. 17-1005 11

deferential’ to eliminate as much as possible the distorting ef-

fects of hindsight, and we ‘must indulge a strong presump-

tion that counsel’s conduct falls within the wide range of rea-

sonable professional assistance.’” Vinyard v. United States, 804

F.3d 1218, 1225 (7th Cir. 2015) (quoting Strickland, 466 U.S. at

689). “Under these standards, ‘strategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.’” Id. (quoting Strick-

land, 466 U.S. at 690); see also United States v. Cieslowski, 410

F.3d 353, 360 (7th Cir. 2005) (“Generally when an attorney ar-

ticulates a strategic reason for a decision, the court defers to

that choice.”). Indeed, “[i]f an attorney’s decision was sound

at the time it was made, the decision cannot support a claim

of ineffective assistance of counsel.” Cieslowski, 410 F.3d at 360.

Still, “an attorney’s decisions are not immune from examina-

tion simply because they are deemed tactical.” U.S. ex rel.

Hampton v. Leibach, 347 F.3d 219, 249 (7th Cir. 2003). “A strate-

gic choice based on a misunderstanding of law or fact … can

amount to ineffective assistance.” Vinyard, 804 F.3d at 1225.

Jansen argues that Steinback’s conduct was objectively un-

reasonable because he “made no investigation into any of the

government’s purported case, discovery or otherwise.” It is

true that generally, “a reasonably competent lawyer will at-

tempt to learn all of the relevant facts of the case, make an

estimate of a likely sentence, and communicate the results of

that analysis to the client before allowing the client to plead

guilty.” Bethel v. United States, 458 F.3d 711, 717 (7th Cir. 2006).

However, “strategic choices made after less than complete in-

vestigation are reasonable precisely to the extent that reason-

able professional judgments support the limitations on inves-

tigation.” Strickland, 466 U.S. at 690–91. Put another way,

12 No. 17-1005

counsel can “make a reasonable decision that makes particu-

lar investigations unnecessary.” Id. at 691. Moreover, “when a

defendant has given counsel reason to believe that pursuing

certain investigations would be fruitless or even harmful,

counsel’s failure to pursue those investigations may not later

be challenged as unreasonable.” Id.

Jansen points out that Steinback did not request records,

interview witnesses, or examine “the extent of the govern-

ment’s investigation into other crimes, and the government’s

other possible charges.” According to Jansen, some investiga-

tion was necessary to “test the government’s evidence” and

“put it through some form of adversarial testing.” He main-

tains that Steinback’s proffered “strategic reasons for not con-

ducting investigation into the government’s evidence” are

merely “hollow excuses.” Moreover, Jansen claims that Stein-

back “could not have appropriately advised [him] to plead

guilty to counts outside the statute of limitations if he did not

know what the alternative counts could or would be.”

Jansen’s argument is unpersuasive. The district court

made the sound factual finding that Jansen hired Steinback

“to negotiate the best possible plea agreement,” not to go to

trial:

The evidence makes clear … that by the time de-

fendant hired Steinback he had already decided

to plead guilty and did not hire Steinback to vet

the evidence, formulate defenses, and defend

him at trial. Rather, defendant employed Stein-

back to negotiate the best possible plea agree-

ment with the government after it had ceased

negotiating with him and his prior counsel.

No. 17-1005 13

The court’s determination is supported by Steinback’s tes-

timony at the evidentiary hearing. Indeed, Steinback stated

that Jansen “never once indicated a desire to go to trial”; if he

had, Steinback “would have referred him to a trial lawyer.”

Moreover, the district court noted that Jansen’s “unusual—

but not completely uncommon—practice” of presenting a

plea agreement prior to indictment “strongly indicate[d] a

specific intention to plead guilty.” In short, the court con-

cluded that the notion that Steinback was hired solely to ne-

gotiate a plea “stands uncontradicted.” While it is true, as Jan-

sen argues, that “there is no mention in the record that Mr.

Jansen and Steinback explicitly agreed that the only possible

outcome in this case was a guilty plea,” the court’s finding is

not clearly erroneous.

To be sure, that Steinback was hired to negotiate a plea

does not immunize him from a charge of providing ineffective

counsel. However, the purpose behind his hiring does lend

credence to his decision to not conduct an in-depth investiga-

tion into the government’s evidence. The district court deter-

mined that Steinback formulated a “four-fold” “tactical strat-

egy” that included forgoing investigation and discovery, and

held that such a strategy was objectively reasonable. Specifi-

cally, the court concluded:

(1) he did not want to lose the tactical advantage

presented when the government agreed to reo-

pen plea negotiations; (2) he wanted to avoid

making a request for discovery that might cause

the government to take a fresh look at its evi-

dence and rethink its position such that it would

not be willing to maintain a favorable offer;

14 No. 17-1005

(3) he believed it was critical to stop the govern-

ment’s investigation of defendant in order to

keep matters not yet fully investigated from be-

ing charged or being raised as relevant conduct

at sentencing, and (4) he wanted to avoid a

newer charge that would have carried a higher

statutory maximum penalty.

Likewise, the district court reasoned that Steinback’s ad-

vice to Jansen to waive his statute of limitations defense was

objectively reasonable because it was given in furtherance of

the same strategy—that is, “in exchange for the government’s

agreement not to bring other charges against defendant, or to

raise those matters as relevant conduct.”

In light of the fact that Steinback was hired to negotiate the

best possible plea, the court’s conclusion is not an abuse of

discretion. Steinback reasonably believed the government’s

investigation included conduct beyond the two counts for

which Jansen was charged. Specifically, he suspected that Jan-

sen had not filed many years’ worth of tax returns and had

regularly engaged in businesses involved in fraudulent mis-

conduct. Of course, because Steinback formed that belief in

part from his conversations with the AUSA, the strategy “re-

quire[d] some good faith belief” that the government was tell-

ing the truth. But the strategy was also supported by a “con-

fluence of different items,” including information Steinback

learned from discussions with Granet and Jansen himself.

Steinback believed that if Jansen agreed to a plea at “rela-

tive expediency,” he could “stop investigation” into Jansen’s

other misconduct. The government had already agreed not to

consider the other, more recent activity as relevant conduct

No. 17-1005 15

and agreed not to bring charges based on those actions. Stein-

back worried that if he investigated the government’s evi-

dence, the government could change its mind. 2 Likewise,

Steinback worried that the government would bring other

charges if Jansen did not waive the statute of limitations de-

fense. This could have proven particularly harmful because in

2002, Congress increased the maximum imprisonment term

for wire fraud. Jansen was subject only to a five-year maxi-

mum; if the government had brought wire fraud charges

based on more recent conduct, Jansen could have faced a

twenty-year prison term. In short, Steinback’s decisions were

strategically motivated. As a result, the district court did not

abuse its discretion. 3

Jansen also points out that “Steinback eventually admitted

his representation was inadequate.” While this is true, it is not

2 Jansen is correct that a decision “based on convenience and not on

content … cannot be called strategic.” United States v. Hemphill, 86 F. App’x

985, 989 (7th Cir. 2004). However, his argument that “[i]t is more likely

Steinback’s perceived ‘rush’ was for his own purposes” ignores the various

tactical reasons identified by the district court.

3 Jansen cites several cases for the proposition that Steinback’s actions

were objectively unreasonable. They are not persuasive. For example, in

Kimmelman v. Morrison, the Supreme Court held that counsel was ineffec-

tive because he offered “only implausible explanations” for his failure to

conduct reasonable investigation and pre-trial discovery. 477 U.S. 365, 386

(1986); see also United States v. Mohammed, 863. F.3d 885, 891 (D.C. Cir. 2017)

(holding that an attorney’s decision to not conduct pre-trial investigation

was unreasonable because there was no reason to think the investigation

would be fruitless or harmful). In contrast, Steinback offers multiple plau-

sible explanations for his strategy. Additionally, cases such as Porter v.

McCollum, 558 U.S. 30, 39–40 (2009), and Rompilla v. Beard, 545 U.S. 374, 385

(1985), are distinct because they involve the specific context of post-con-

viction hearings.

16 No. 17-1005

a persuasive reason to find ineffective assistance of counsel.

First, “[a] defense counsel’s self-confessed admission of defi-

cient representation does not constitute ineffectiveness per se;

it is just one factor to be considered in determining whether

counsel was constitutionally ineffective.” United States v.

Laird, 591 F. App'x 332, 337 (6th Cir. 2014); see also Edwards v.

Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (“[T]he trial court

was not obligated to accept a self-proclaimed assertion by trial

counsel of inadequate performance.” (internal quotation

marks omitted)). Second, as the district court recognized, “the

earnestness of Steinback’s new opinion is called into serious

question as it appears to have been at least partially coerced

by defendant.”

Finally, both parties ask us to examine American Bar As-

sociation (“ABA”) standards. However, while “[p]revailing

norms of practice as reflected in [ABA] Standards and the

like … are guides to determining what is reasonable,” they

need not drive our analysis. Strickland, 466 U.S. at 688. Indeed,

ABA rules “are ‘only guides’ and not ‘inexorable com-

mands.’” Padilla v. Kentucky, 559 U.S. 356, 367 (2010) (first

quoting Strickland, 466 U.S. at 688; then quoting Bobby v. Van

Hook, 558 U.S. 4, 8 (2009) (per curiam)). Regardless, the ABA

Guidelines do not speak clearly as to whether Steinback’s

counsel was ineffective. 4

4 Jansen points to the ABA Standards for Criminal Justice: Prosecution

and Defense Function, Duty to Investigate and Engage Investigators, 4-4.1

(4th ed. 2015), which speaks to a defense counsel’s general duty to inves-

tigate. In contrast, the government points to the ABA Standards for Crim-

inal Justice: Pleas of Guilty, Responsibilities of Defense Counsel, 14-3.2 (3d

ed. 1999), which discuss a defense counsel’s obligations in the specific con-

text of guilty pleas. A comment to that section recognizes that “there may

No. 17-1005 17

2. Prejudice

In addition to showing deficient performance, “[i]n the

context of pleas a defendant must show that the outcome of

the plea process would have been different with competent

advice.” Lafler, 566 U.S. at 163. “[A] mere allegation by the de-

fendant that he would have insisted on going to trial is insuf-

ficient to establish prejudice.” Cieslowski, 410 F.3d at 359 (quot-

ing Berkey v. United States, 318 F.3d 768, 772–73 (7th Cir. 2003)).

Instead, “the defendant must show that there is a reasonable

probability that, but for counsel’s errors, [the defendant]

would not have pleaded guilty and would have insisted on

going to trial.” Hill, 474 U.S. at 59. Specifically, where a de-

fendant alleges that counsel failed to investigate, whether

there is prejudice “will depend on the likelihood that discov-

ery of the evidence would have led counsel to change his rec-

ommendation as to the plea.” Id.

According to the district court, Jansen did “not come for-

ward with objective evidence that had Steinback obtained the

discovery he would not have pleaded guilty.” It concluded

that Jansen made, at most, “conclusory allegations” that he

would have proceeded to trial. The court correctly recognized

be some cases in which defense counsel legitimately determines that a bet-

ter plea agreement may be available if the defendant enters a plea at a

point in time before all of his or her discovery rights may apply.” The com-

ment goes on to state that “an ‘appropriate’ investigation may be quite

limited … where a highly favorable pre-indictment plea is offered, and the

pleas offered after indictment are likely to carry significantly more severe

sentences.” To the extent ABA Guidelines are persuasive, Guideline 14-3.2

is more relevant because it specifically references the facts presented here.

Indeed, as the government states, “[t]he Comment’s pre-indictment plea

example represents circumstances that parallel those faced by Steinback

when he chose not to seek discovery from the government.”

18 No. 17-1005

that Strickland requires more. Further, the court determined

that “the evidence [was] contrary to defendant ever having

the intent to go to trial rather than plead guilty.” This deter-

mination was not clearly erroneous.

The district court found that Jansen “hired Steinback to ne-

gotiate a plea agreement because Steinback was a plea bar-

gaining specialist,” and that Jansen never “indicate[d] to

Steinback that he wanted to go to trial.” The court reasonably

relied on these facts to determine that even if Steinback had

conducted an investigation into the government’s evidence,

he still would have recommended that Jansen plea, and there

was no reasonable probability that Jansen would have in-

sisted on going to trial. See Tezak v. United States, 256 F.3d 702,

712 (7th Cir. 2001) (holding “[t]here was no reasonable proba-

bility that [the defendant] would have insisted on going to

trial” where the evidence suggested the defendant “wanted

the plea agreement and was not considering any other alter-

native” and “brought in [the attorney] specifically to close the

plea agreement deal”).

Additionally, the district court concluded that Jansen first

desired to withdraw his plea when the government refused to

recommend a sentence reduction under U.S.S.G. § 5K1.1.

Thus, Jansen’s change of heart appears less motivated by

Steinback’s lack of investigation than the government’s denial

of “substantial assistance” credit. This finding was supported

by Steinback’s testimony at the evidentiary hearing. He stated

that he believed Jansen’s motive for seeking to withdraw his

guilty plea was based on the “report[] to the court that [Jan-

sen’s] cooperation … would not result in a 5K downward de-

parture request from the government.”

No. 17-1005 19

In sum, Jansen failed to demonstrate that, but for Stein-

back’s alleged ineffective performance, he would not have

pleaded guilty but instead would proceed to trial.

B. Restitution

“We review de novo questions of law involving the district

court’s authority to order restitution.” United States v. Has-

sebrock, 663 F.3d 906, 923 (7th Cir. 2011). “[R]estitution is not

permitted … for offenses that fall within Title 26 of [the]

United States Code.” Id. However, “district courts possess the

authority to impose restitution for tax offenses as a condition

of supervised release.” Id. at 924. “Because a district court can

only impose restitution as a condition of supervised release, a

defendant cannot be required to pay restitution until his pe-

riod of supervised release begins.” Id.

The judgment below orders Jansen to pay $269,978 in res-

titution for tax evasion as a “criminal monetary penalt[y].” As

a condition of Jansen’s supervised release, he is required to

pay monetary penalties “immediately.” Taken together, these

documents impose restitution as a penalty for the tax offense

rather than as a condition of supervised release, and as such

requires the restitution to be paid prior to the supervise re-

lease period. This is not permitted. Thus, in accordance with

both parties’ request, we remand to allow the district court to

clarify that the court does not impose restitution as a criminal

penalty, but rather as a condition of supervised release. 5

5 As in Hassebrock, it “seems likely that the court was aware that it

could only impose restitution as a condition of supervised release.” 663

F.3d at 925. At the sentencing hearing, the district court, citing Hassebrock,

expressly stated that it could not “order restitution except as a condition

of supervised release.”

20 No. 17-1005

III. Conclusion

For the foregoing reasons, the order of restitution is

VACATED, and the case is REMANDED for further proceedings

consistent with this opinion. In all other respects, the district

court’s judgment is AFFIRMED.