Petition for Writ of Certiorari — Ristovski v. United States

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021294 MAR 5S 2003,

NO, acme 7HE @Laek

In the

Supreme Court of the Anited States

Lyupco RISTOVSKI,

Petitioner,

V.

UniTeD STATES OF AMERICA,

Respondent.

On PETITION FOR WRIT OF CERTIORARI

To Tue UNITED STATES Court Or APPEALS

For THe SixtH CIkcuIT

PETITION FOR WRIT OF CERTIORARI

HAROLD GUREWITZ

Counsel of Record

GurewiTz & RABEN, PLC

333 W. Fort STREET

11TH FLooR

Detroit, MI 48226

(313) 628-4740

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

a

QUESTIONS PRESENTED

Was the Denial of Petitioner’s Motion for New Trial

as Untimely Based on the Time Limitation of

Amended Rule 33 FRCrP, Effective December 1,

1998, Violative of the Ex Post Facto Clause of the

Constitution?

TABLE OF CONTENTS

QUES ERIN PIREEIEN EUS og. 6 0 6% Sek waig ely oe

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CONSTITUTIONAL AND STATUTORY

PRS VES EVIE 666s a eee eh ee eee

STATEMEN: GF Tie GA 6 .n ks een ees hee eee

ARGUMENT FOR GRANTING THE WRIT .......

ISSUE 1: The Denial of Petitioner’s Motion

for New Trial as Untimely Based on the Time

Limitation of Amended Rule 33 FRCrP,

Effective December 1, 1998, Is Violative of

the Ex Post Facto Clause of the Constitution.

CURA 60s bee shee eee Aaa ees

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APPENDIX

Appendix A

Court of Appeals Opinion, 4/18/00 .........

Appendix B

Court of Appeals Opinion, 12/4/02 ........

Appendix C

District Court Order Denying Defendant’s

Motion for New Trial, 6/5/01

ili

TABLE OF CITED AUTHORITIES

Carmel v Texas,

529 US 513; 120 S Ct 1620;

i! arse 11

Collins v Youngblood,

497 US 37; 110 S Ct 2715;

Se ee ee sk 4 <0 oo deen eae 11-13

Dobbert v Florida,

432 US 282; 97 S Ct 2290;

ae ee OE te eb eee eee e eee es 11

Garner v Jones,

529 US 513; 120 S Ct 1362;

DOOD Ge Oe BOD 8 oc as ce we eteeenes 11

~Landgraf v USI Film Products,

511 US 244; 114 S Ct 1483;

Re Ae Ge A CU 8 6 ee ee wwe eas 10

Lynce v Mathis,

519 US 433; 117 S Ct 891;

eee oe 2 2 eee re ree 9,11

Miller v Florida,

482 US 423; 107 S Ct 2446;

py kek a eo ee es ee 9

Weaver v Graham,

450 US 24; 101 S Ct 960;

—g* > 822). : a ae 9, 10

STATUTES

(3. & Perrveevrrrecrre et eee a p

y i ee ee ree ee ee as 2.2

De SE 0a 6 6s 05 Fe eee 6 ae A ,

3 Seer re areas wer coe 3, 11

i } 4 +. errr rer ee Te a ee passim

- Rule 33 FRCrP (amended 12/1/98) ........... passim

Vv

OPINION BELOW

The opinion of the United States Court of appeals for

the Sixth Circuit is reported at 312 F3d 206 (6th Cir., 2002).

A copy of the Opinion is included in the Appendix at

Appendix A at la.

JURISDICTION

The Opinion of the United States Court of Appeals for

the Sixth Circuit affirming denial of Petitioner’s Motion for

New Trial was entered on December 4, 2002. This Petition

for Writ of Certiorari is filed within 90 days of the denial of

the Opinion. This Court’s jurisdiction is invoked pursuant to

28 USC §1254(1) and §2106.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED -

U.S. Constitution, Article I, Section 19

No Bill of Attainder or ex post facto Law shall be

passed. .

Attempt to Evade or defeat tax

26 USC §7201

Any person who willfully attempts in any manner to

evade or defeat any tax imposed by this title or the payment

thereof shall, in addition to other penalties provided by law,

be guilty of a felony and, upon conviction thereof, shall be

fined not more than $100,000 ($500,000 in the case of a

corporation), Or imprisoned not more than 5 years, or both,

together with the costs of prosecution.

Fraud and false statements

26 USC §7206(1)

Any person who --

(1) Declaration under penalties of perjury. --Willfully

makes and subscribes any return, statement, or other

document, which contains or is verified by a written

declaration that it is made under the penalties of

perjury, and which he doesnot believe to be true and

correct as to every material matter; ...

shall be guilty of a felony, and upon conviction thereof, shall

be fined not more than $100,000 ($500,000 in the case of a

corporation), or imprisoned not more than 3 years, or both,

together with the costs of prosecution.

Fraudulent returns, statements,

or other documents

26 USC §7207

Any person who willfully delivers or discloses to the

Secretary any list, return, account, statement, or other

document, known by him to be fraudulent or to be false as to

2

one

any material manner, shall be fined not more than $10,000

($50,000 in the case of a corporation), or imprisoned not

more than 1 year, or both. Any person required pursuant to

subsection (b) of section 6047 or pursuant to subsection (d) of

section 6104 to furnish any information to the Secretary or

any other person who willfully furnishes to the Secretary or

such other person any information known by him to be

fraudulent or to be false as to any material matter shall be

fined not more than $10,000 ($50,000 in the case of a

corporation), or imprisoned not more than 1 year, or both.

Rules of procedure and evidence;

power to prescribe

28 USC §2072

(a) The Supreme Court shall have the power to

prescribe general rules of practice and procedure and rules of

evidence for cases in the United States district courts

(including proceedings before magistrate judges thereof) and

court of appeals.

(b) Such rules shall not abridge, enlarge or modify

and substantive right. All laws in conflict with such rules

shall be of no further force or effect after such rules have

taken effect.

(c) Such rules may define when a ruling of a

district court is final for the purposes of appeal under section

1291 of this title.

Federal Rules of Criminal Procedure

FRCrP 33 (1997)

The court on motion of a defendant may grant a new

trial to that defendant if required in the interest of justice. If

trial was by court without a jury the court on motion of a

defendant for a new trial may vacate the judgment if entered,

3

take additional testimony and direct the entry of a new

judgment. A motion for a new trial based on the ground of

newly discovered evidence may be made only before or within

two years after final judgment, but if an appeal is pending the

court may grant the motion only on remand of the case. A

motion for a new trial based on any other grounds shall be

made within 7 days after verdict or finding of guilty or within

such further time as the court may fix during the 7-day period.

Federal Rules of Criminal Procedure

FRCrP 33 (Amended December 1, 1998)

On a defendant’s motion, the court may grant a new

trial to that defendant if the interests of justice so require. If

trial was by the court without a jury, the court may - on

defendant’s motion for new trial - vacate the judgment, take

additional testimony, and direct the entry of a new judgment.

A motion for new trial based on newly discovered evidence

may be made only within three years after the verdict or

finding of guilty. But if an appeal is pending, the court may

grant the motion only on remand of the case. A motion for a

new trial based on any other grounds may be made only

within 7 days after the verdict or finding of guilty or within

such further time as the court may fix during the 7-day period.

STATEMENT OF THE CASE

Petitioner Ristovski was indicted by a grand jury in the

Eastern District of Michigan on June 6, 1996 in a twelve-

count indictment charging tax evasion (Counts 1 and 2) in

violation of 26 USC §7201 in the years 1989 and 1990, filing

false corporate tax returns in violation of 26 USC §7206(1)

(Counts 3 and 4) in the same years, and making and

submitting false documents to the Internal Revenue Service

district office in Detroit, Michigan in violation of 26 USC

§7207 in 1995 during the investigation preceding the

indictment.(Counts 5-12). Trial took place from September

24, 1997 through October 14, 1997. On October 15, 1997,

the jury found Petitioner Ristovski guilty on Counts 3-12 and

reached no verdict on Counts 1 and 2.

Petitioner Ristovski was sentenced on June 24, 1998

to a term of 18 months custody on Counts 3 and 4 and 12

months custody on Counts 5-12, all to run concurrently,

followed by a one year term of supervised release and a fine

of $35,000. On April 18, 2000, the United States Court of

Appeals for the Sixth Circuit affirmed Petitioner’s

convictions. 211 F3d 1271 (6" Cir., 2000) (unpublished). It

denied a Petition for Rehearing and Rehearing En Banc on

July 25, 2000. This Court denied a Petition for Writ of

Certiorari on December 4, 2000. The United States Court of

Appeals for the Sixth Circuit issued its mandate on December

11, 2000.

Petitioner filed a motion for a new trial on March 19,

2001. A hearing on the motion was held before the district

court on May 23, 2001. No testimony was taken. The district

court denied Petitioner’s motion. The court concluded that it

was without jurisdiction because the 1998 amendment to Rule

33 FRCrP required any motion for new trial to be filed within

5

~

3 years of the verdict and the motion was late. The court

stated that if it had jurisdiction, it would deny the motion

because the evidence was “newly available, but not new

evidence” , and because the evidence is cumulative. The

Court of Appeals affirmed on December 4, 2002, holding in

a published opinion that the trial court correctly applied the

time limit in the December 1, 1998 Amendment to Rule 33

FRCrP. The Court did not discuss the merits of the motion.

United States v. Ristovski, 312 F3d 206 (6" Cir., 2002)

Petitioner Ristovski began Precision Steel Shearing

(PSS) in 1984. The business sold its scrap metal to Mason

Iron and Metal (Mason). As part of Mason’s general

practice, Mason paid for the PSS scrap with checks payable to

cash. These cash checks totaled $92,542 in 1989 and

$42,000 in 1990. The Government argued at trial that the

checks were cashed by various people and that the cash was

kept by Petitioner Ristovski instead of depositing it in the

corporation’s checking account. According to a government

witness, the cash resulted in unreported income for 1989 and

1990.

It was part of Petitioner’s defense that he did not sign

the PSS tax returns with knowledge they were false. Trial

evidence established that in 1989 Petitioner Ristovski was 29

years old, a native of Yugoslavia, and without any accounting

experience or business education. Most of Petitioner’s time

at work was spent on the floor of the company working with

metal shearing machinery; accounting matters were handled

by the company bookkeeper and tax preparer.

The in-house bookkeeper was in her early twenties and

had no prior accounting experience. The company’s tax

preparer, was ultimately sued by PSS resulting in a default

judgment against him for failure to properly file PSS payroll

tax returns. The return preparer was subpoenaed by the

Government as a trial witness; but he was_ arrested after

failing to appear and eventually testified that because of a

severe emotional problem, he could not recall the details of

his work for PSS. Other trial witnesses testified the preparer

told them that the cash from Mason checks need not have

been reported as corporate income if used to buy corporate

assets or for other corporate purposes.

Evidence at trial also established that some of the cash

was used to pay corporate debts and some went to Petitioner

Ristovski’s parents to repay their loans to the company.

There was testimony that cash from the checks was deposited

into a joint account held by Petitioner Ristovski and his

parents, and was later withdrawn to pay business expenses.

The newly discovered evidence proffered in

Petitioner’s New Trial Motion includes a company check

register for the year 1989 and a small red bank style book

containing records of essentially all payments by Mason to

PSS in 1990, including checks payable to PSS and checks

payable to cash. The 1989 check register contains entries for

checks and deposits into the company checking account, and

entries for both debits and credits to or from the savings

account. Petitioner argued in his new trial motion that the

1989 check register represents a correlation of fund transfers

between the company checking account and the personal

savings account which Petitioner argued at trial had been used

for company purposes; and that it demonstrates that

substantially all of the Mason cash was accounted for in 1989

in records that were accessible to the tax preparer. Petitioner

argued in his motion that the newly discovered evidence

provides substantial factual support for his defense theory that

he had a_ good faith belief there were business records

covering all payments by Mason for PSS scrap; and supported

7

other evidence of his good faith basis to believe the gross

income amounts on the company tax returns included those

amounts. Petitioner argued in his motion that the documents

had been taken from PSS by his father and kept at his father’s

house from about 1993 through the time period of the trial;

and, that the documents were only discovered after the trial

was completed. The motion argued that the newly discovered

evidence provides independent support for his good faith

defense and contradicts assertions made by prosecution

witnesses that Petitioner knew the cash payments were not

included in the company returns simply because the checks

had been cashed instead of deposited directly into the

company checking account.

ARGUMENT FOR GRANTING THE WRIT

I. The Denial of Petitioner’s Motion for New Trial as

Untimely Based on the Time Limitation of

Amended Rule 33 FRCrP, Effective December 1,

1998, Is Violative of the Ex Post Facto Clause of the

Constitution.

The trial court held it was without jurisdiction to hear

Petitioner’s Motion for New Trial because the Motion was

untimely based on the December 1, 1998 amendment to Rule

33 FRCrP. The amended rule changed the triggering event

for filing. It permits motions for new trial based on newly

discovered evidence to be filed within three years of the

verdict; the rule prior to amendment permitted motions to be

filed within two years of the final judgment, interpreted as

either the final decision of the court of appeals or its mandate.

The Court of Appeals affirmed on the same grounds.

Petitioner’s Motion for New Trial was filed within

approximately four months of the mandate, well within the

-two year time limit of Rule 33 FRCrP before the December

8

-_- + o a ee

1, 1998 amendment; but, it was filed approximately four

months after the time limit expired based on the amended Rule

33. The Court of Appeals affirmed. It concluded that

application of the amended rule to Petitioner was “just and

practicable” and not ex post facto because it permitted a

window of 19 months measured from the effective date of the

amendment until the date three years after Petitioner’s October

15, 1997 verdict for Petitioner to file the motion.

The ex post facto prohibition forbids enactments which

impose more punishment than prescribed at the time of the

act. Weaver v Graham, 450 US 24, 28; 101 S Ct 960, 964;

67 LEd 2d 17 (1981). Two critical elements must be present

for a law to be found to be ex post facto: “it must be

retrospective, that is, it must apply to an offense occurring

before its enactment and it must disadvantage the offender

effected by it.” supra. The ex post facto prohibition was

intended to assure that laws “give fair warning of their effect

and permit individuals to rely on their meaning until explicitly

changed.” 450 US at 25; 101 S Ct at 965; Lynce v Mathis,

519 US 433; 117 S Ct 891; 137 LEd 2d 63 (1997); Miller v

Florida, 482 US 423,-430; 107 S Ct 2446, 2451; 96 LEd 2d

351 (1987). The principle of fair warning is an element of

due process and a basis for the presumption against retroactive

legislation. .

“{T]he presumption against retroactive

legislation is deeply rooted in our

jurisprudence, and embodies a legal doctrine

centuries older than our Republic. Elementary

considerations of fairness dictate that

individuals should have an opportunity to know

what the law is and to conform their conduct

accordingly; settled expectations should not be

lightly disrupted. For that reason, the

9

“principle that the legal effect of conduct

should ordinarily be assessed under the law

that existed when the conduct took place has

timeless and universal appeal” .

Landgraf v USI Film Products, 511 US 244, 265; 114 S Ct

1483, 1497; 128 LEd 2d 229 (1994).

The Court of Appeals found no ex post facto violation

even though it concluded that “application of the time

limitation in amended Rule 33 was retrospective because it

changed the criminal review procedure for offenses occurring

before the date of its enactment”, United States v Ristovski,

312 F3d 206, 211 (6" Cir., 2002).' It did not expressly

consider if the second element of the Weaver test, whether

there was any disadvantage to the offender affected by the

change; but, instead, it decided that the “amended Rule 33

merely changed the mode of procedure.” 200 F3d at 213.

According to the Court of appeals, the change in procedure

did not deny Petitioner’s substantive right to file a new trial

motion because “he had ample time to bring his motion for

new trial”, 312 F3d at 212, that is, he had 19 months after

Rule 33 was amended on December 1, 1998, until October

15, 2000 when the three year limit measured based on the

amended rule from Petitioner’s verdict, expired.’

' In this case, the offenses were committed in 1990, 1991,

and 1995.

2 The order of this court dated April 24, 1998 giving

notice of the effective date of the proposed change to Rule 33 along

with Rules 5.1, 26.2, 31, 35, and 43 FRCrP states that the changes

to the rules, including Rule 33 “shall govern all proceedings in

criminal cases thereafter commenced and, insofar as just and

practicable, all proceedings in criminal cases then pending.”

10

This Court has addressed the ex post facto prohibition

as applied to ambiguous distinctions between substance and

procedure in various contexts. Dobbert v Florida, 432 US

282; 97 S Ct 2290; 53 LEd 2d 344 (1977) (change in state

death penalty procedures); Collins v Youngblood, 497 US 37:

110 S Ct 2715; 111 LEd 2d 30 (1990) (change in state

criminal law concerning reformulation of verdicts); Lynce v

Mathis, supra (state statute cancelled provisional early release

credits); Garner v Jones, 529 US 244; 120 S Ct 1362; 146

LEd 2d 236 (2000) (change in frequency of state parole

hearings); Carmel v Texas, 529 US 513; 120 S Ct 1620; 146

LEd 2d 577 (2000) (change in rule of evidence). However,

this Court has not previously addressed the retroactive

application of an amendment to the rule of criminal procedure

which permits a criminal defendant’s request for a new trial

based on newly discovered evidence.

The opportunity for a defendant to file a motion for

new trial provided for by Rule 33 FRCrP falls within the

definition of protections historically afforded pursuant to the

ex post facto prohibition.» 28 USC §2072, which grants this

Court authority to prescribe rules of procedure for criminal

> The types of criminal laws historically subject to the

proscription against ex post facto laws include: “1". Every law that

makes an action done before the passing of the law, and which was

innocent when done, criminal; and punishes such action before.

2™. Every law that aggravates a crime, or makes it greater than it

was, when committed. 3”. Every law that changes the

punishment, and inflicts a greater punishment, than the law next to

the crime, when committed. 4". Every law that alters the legal

tules of evidence, and receives less, or different testimony, than the

law required at the time of the commission of the offence, in order

to convict the offender.” Carmel v Texas, 529 US at 522 citing

Calder v Bull, 3 Dall. 386, 390; 1 LEd 648 (1798) (Chase, G.)

11

cases provides that “such rules shall not abridge, enlarge, or

modify any substantive right. All laws in conflict with such

rules shall be of no further force or effect after such rules

have taken effect.”

To the extent that the 1998 amendment to Rule 33

FRCrP is viewed as procedural, it is nevertheless still subject

to ex post facto limitations. “A procedural change may

constitute an ex post facto violation if it “affect(s) matters of

substance, Beazell, supra, 269 US at 171; 46 S Ct at 69, by

depriving a defendant of “substantive protections with which

the law surrounds the person accused of crime.” Collins,

supra at 45, citing Duncan v Missouri, 152 US 377, 382-83;

14 S Ct 570, 571-572; 38 LEd 48 (1894).

“We think the best way to make sense out of

this discussion in the cases is to say that by

simply labeling a law “procedural”, a

legislature does not thereby immunize it from

scrutiny under the ex post facto clause. See

Gibson v Mississippi, 162 US 565, 590; 16S

Ct 904, 910; 40 LEd 1075 (1896). Subtle ex

post facto violations are no more permissible

than overt ones. In Beazell, supra, we said

that the constitutional prohibition is addressed

to laws, “whatever their form,” which make

innocent acts criminal, alter the nature of the

offense, or increase the punishment. /d., 269

US at 170; 46 S Ct at 68-69. But the

prohibition which may not be evaded is the one

defined by the Calder categories. See Duncan,

supra, 152 US at 382; 14 S Ct at 571; Malloy,

supra, 237 US at 183-184; 35 S Ct at 508.

The references to Duncan and Malloy to

“substantial protection” and “personal rights”

12

should not be read to adopt without explanation

an undefined enlargement of the ex post facto

clause.”

Collins v Youngblood, 497 US at 42; 110 S Ct at 2719; 111

LEd 2d 30 (1990).

The time limit prescribed by Rule 33 FRCrP for filing

a new trial motion based upon newly discovered evidence in

effect at the time of Petitioner’s trial and prior to December

1, 1998, measured the limit from final judgment. It required

a new trial motion to be filed within two years of the final

judgment. The mandate issued in Petitioner’s first appeal on

December 11, 2000. The two year time limitation in Rule 33

prior to amendment permitted his new trial motion to be filed

until December, 2002. The amended Rule 33 effective

December 1, 1998 measures the time period from the verdict

and requires that a new trial motion “be made only within

three years after the verdict or finding of guilty.” The

Advisory Committee note to the 1998 amendment explains

that the use of a “final judgment” as the triggering event

caused disparity because the two year period was measured by

some courts from the date of the appellate court judgment and

by others from the date of its mandate. However, based upon

either approach, Petitioner’s motion for new trial was well

within the time limit of the old rule, measured either from the

appellate court judgment or mandate. Retroactive application

of the amended rule, terminating the time limit for filing a

new trial motion two months before the mandate was issued

and six months after the decision of the court of appeals on the

first appeal, substantially disadvantaged the Petitioner.

13

CONCLUSION

The Petition for Writ of Certiorari should be granted

as to the question presented.

Respectfully Submitted,

GUREWITZ & RABEN, PLC

Harold Gurewitz (P14468)

Attorney for Petitioner

333 W. Fort Street, 11th floor

Detroit, MI 48226

(313) 628-4740

DATE: March 3 , 2003.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

April 18, 2000, Filed

Nos. 98-1749/98-1868

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Cross-Appellant,

V.

LJUPCO RISTOVSKI,

Defendant-Appellant, Cross-Appellee.

i i a a a

JUDGES: Before: MERRITT, NELSON, and

DAUGHTREY, Circuit Judges.

OPINION: DAVID A. NELSON, Circuit Judge.

Ljupco Ristovski was convicted on two felony counts

of subscribing false corporate tax returns in violation of 26

U.S.C. §§ 7206(1) and eight misdemeanor counts of

submitting false documents to the Internal Revenue Service ia

violation of 26 U.S.C. §§ 7207. Sentenced to concurrent

terms of imprisonment, the longest of which was 18 months

on the felony counts, he has appealed his convictions and

sentences. The United States has cross-appealed, contending

la

that the district court erred in favor of Ristovski in its

application of the sentencing guidelines.

We find no basis for reversing the convictions. We

think there were probably errors on both sides of the ledger

in the calculation of the defendant's sentencing range under

the guidelines, but the errors cancelled one another out; the

range actually used in sentencing was identical to what it

would have been had there been no errors. Accordingly, we

shall affirm both the convictions and the sentences.

I

Ristovski was the president of Precision Steel Shearing

Company, a small business that cut steel to its customers'

specifications. The steel-cutting process produced scrap that

was sold to a company known as Mason Iron & Metal.

As a service to its customers, Mason would sometimes

make advance payments for scrap that was to be delivered in

the future. Mason was willing to make these advances in the

form of checks made out to cash. Mason was also willing to

break down advances of more than $10,000 into several

smaller checks, thus making it possible to circumvent IRS

reporting requirements for cash transactions of more than

$10,000.

Through Ristovski, Precision arranged to receive

numerous advances from Mason. Many were in the form of

checks (or multiple checks) made payable to cash. Ristovski

cashed a number of these checks himself, and he asked other

employees or family members to cash the rest. Whoever

cashed the checks generally returned the proceeds to

Ristovski, but occasionally would be instructed to use some of

the money to buy items for the business.

2a

Precision's activities came to the attention of the IRS

during an audit of Mason. After a preliminary investigation

into Precision's records, the IRS began a formal audit of

Precision. It soon became apparent that a sizable portion of

the cash received via the Mason checks in 1988, 1989, and

1990 had not been accounted for as corporate income. Neither

was the money included as income on Ristovski's personal tax

returns.

As the audit was getting underway, a break-in and

theft allegedly occurred at Precision's plant. Whether

fortuitously or otherwise, most of the items that turned up

missing were materials needed for the audit.

In the face of the loss of Precision's records, Ristovski

contacted Chris Formosa, a mechanic who serviced the

company's vehicles, and had him create replacement invoices

to show what work Formosa had done for the company and

what he had been paid. The recreated records, which were

turned over to the IRS, were based for the most part on

Formosa's memory, augmented with suggestions from

Ristovski himself. The documents were clearly marked as

replacements; there was no attempt to misrepresent them as

original records.

Other documentation was available to show that some

of the cash taken by Ristovski and members of his family had

represented repayment of loans previously made by them to

the company. Much of the cash from the Mason checks,

however, could not be traced to any corporate use.

Precision's books were kept by Joan Penny,

Ristovski's girlfriend at the time, who worked as the office

secretary and had no prior bookkeeping experience. She knew

3a

of the cash advances from Mason, and she claimed to have

expressed concern about them to Ristovski.

The company's tax returns were prepared by John

Golovich, an accountant. Golovich apparently had serious

personal [*5] or psychological problems, as a result of which

he disclaimed any recollection of the events at issue in the

trial. Precision has since sued Golovich for malpractice and

has recovered a default judgment against him.

In 1996, as an upshot of the IRS audit, Ristovski was

indicted on 12 counts. Counts I and II of the indictment

charged him with willfully attempting to evade personal

income tax, in violation of 26 U.S.C. §§ 7201, by filing false

individual tax returns for 1989 and 1990. Counts III and IV

charged him with subscribing false corporate returns, a

violation of 26 U.S.C. §§ 7206(1), for the same years. Counts

V through XII charged him with submitting faise documents

(the Formosa replacement records) to the IRS on August 8,

1995, in violation of 26 U.S.C. §§ 7207.

After the case was tried and submitted to the jury, the

court accepted a partial verdict when the jury reported that it

had reached a unanimous decision on Counts III through XII.

The verdict proved to be "guilty" on each of these counts. The

jury then deliberated further on Counts I and II, but was

eventually discharged because it could not reach [*6] a

unanimous decision. Counts I and Il were later dismissed.

At sentencing, the court overruled an objection by the

government to a recommendation in the presentence

investigation report that the tax loss from the false corporate

returns not be aggregated, for purposes of applying the

guidelines, with the tax loss from Ristovski's individual tax

returns. The court also sustained an objection by Ristovski to

4a

the criminal history category assigned him in the report;

contrary to the recommendation of the probation officer who

prepared the report, the court declined to give effect to two

prior misdemeanor convictions on Ristovski's record, thereby

placing him in Category I rather than Category II. Using the

1997 edition of the sentencing guidelines (an edition identical,

in all relevant aspects, to the 1994 edition that was in effect at

the time of the misdemeanor offenses charged in Counts V

through XII), the court then imposed concurrent sentences of

18 months for Counts III and IV and 12 months for the

remaining counts. Ristovski's appeal and the government's

cross-appeal followed.

II

A. Sufficiency of the Evidence

3. Sufficiency of the Evidence as to Signing to

False Returns

At the close of the evidence, Ristovski moved for a

judgment of acquittal on the ground that the evidence was

insufficient to support a conviction. The motion was denied.

Appellate review of the denial of such a motion is

conducted de novo. See United States v. Gibson, 675 F.2d

825, 829 (6th Cir.), cert. denied, 459 U.S. 972, 74 L. Ed. 2d

285, 103 S. Ct. 305 (1982). The reviewing court must ask

"whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319,

61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). This does not

involve weighing the evidence or judging the credibility of

witnesses. See Gibson, 675 F.2d at 829.

Sa

To prove a violation of 26 U.S.C. §§ 7206(1), the

government must demonstrate that (1) the defendant willfully

made and subscribed a tax return that was (2) signed under

penalties of perjury and (3) the defendant did not believe the

return to be true and correct as to every material matter. See

United States v. Bishop, 412 U.S. 346, 350, 36 L. Ed. 2d

941, 93 S. Ct. 2008 (1973). Challenging the adequacy of the

government's proofs with respect to the element of willfulness

in signing and filing the false returns prepared by Golovich,

Ristovski argues that he lacked formal education and that he

conducted the financial aspects of his business -- freely mixing

personal and business assets -- in accord with his "old world"

- background. (He had immigrated to the United States from

Yugoslavia at the age of 9.) He also maintains that his

management of the company focused on operations in the shop

and that he remained largely ignorant of the company's

finances. He naively trusted Penny and Golovich to keep

accurate records, he says, and had no idea that anything was

amiss when he signed the tax returns in question. The jury,

obviously, disagreed.

For purposes of section 7206, willfulness has been

defined as a "voluntary intentional violation of a known legal

duty." United States v. Pomponio, 429 U.S. 10, 12, 50 L. Ed.

2d 12, 97 S. Ct. 22 (1976). The government is permitted to

prove willfulness -- a state of mind that entails more than a

careless disregard for the truth -- through the surrounding

facts and circumstances. See United States v. Barnes, 313

F.2d 325, 327 (6th Cir. 1963). Facts and circumstances

relevant in this connection include the extent of the

defendant's knowledge about the income and revenues of the

business and the role played by the defendant in the business

operations. See United States v. Mohney, 949 F.2d 1397,

1406 (6th Cir. 1991), cert. denied, 504 U.S. 910, 118 L. Ed.

2d 546, 112 S. Ct. 1940 (1992).

6a

In the case at bar the evidence did indicate that

Ristovski spent a considerable amount of time in the shop.

There was also ample evidence, however, that he took an

active role in the financial affairs of the business as well. It

was Ristovski who, working with a man named Michael

Duerr of Mason Iron & Steel, made the arrangements for the

advances and for the checks payable to cash. After the initial

deal was made, Ristovski would often call Duerr seeking an

advance and would instruct Duerr as to the amount he wanted

on each check. Ristovski would either pick up the checks and

cash them himself or would instruct someone else to do so.

_ When others cashed the checks, they always returned the

money to Ristovski or made purchases at Ristovski's

instruction.

Ristovski claims that he arranged for checks payable

to cash in order to prevent his father (who-acted as corporate

treasurer) from learning how Precision was spending the

money. The father cashed some of the Mason checks,

however, and turned the proceeds over to the son. The

younger Ristovski had become a signatory on the corporate

account in 1987, moreover -- before the arrangement with

Mason was established -- and it was unnecessary for him to

obtain his father's approval on corporate expenditures.

Defendant Ristovski's involvement in the financial

aspects of the business is also evident from the fact that he

kept track of how much money Precision owed to others and

how much others owed Precision. He often asked Ms. Penny

whether particular funds had been received or particular bills

had been paid. Kuistovski also orchestrated other financial

transactions for the business, such as the purchase and

refinancing of property. Further, there was evidence that both

Penny and Golovich warned him of the danger of misusing the

cash received from Mason.

7a

The jury, in short, heard ample testimony to the effect

that Ristovski played an active and sentient role in the

financial operations of the business. Under the circumstances

presented here, this was more than enough to sustain the

denial of his motion for acquittal. See Mohney, 949 F.2d at

1406. The evidence did not have to exclude every reasonable

hypothesis except that of guilt. See United States v. Reed, 821

F.2d 322, 325 (6th Cir. 1987).

2. Sufficiency of the Evidence as to Submitting

False Documents

The misdemeanor charges against Ristovski for

submitting false documents were based on the delivery to the

IRS of the reple zement invoices created by Chris Formosa.

A violation of 26 U.S.C. §§ 7207 occurs when a

person willfully discloses to the IRS any documents that the

person knows to be false as to any material matter. See 26

U.S.C. §§ 7207. See also Sansone v. United States, 380 U.S.

343, 13 L. Ed. 2d 882, 85 S. Ct. 1004 (1965).

Ristovski argues that the evidence did not show a

violation of this section because he had a legitimate reason --

the alleged break-in and theft -- for giving the IRS

replacement invoices; he informed the IRS of this reason; the

documents clearly indicated that they were replacements

rather than originals; and the IRS was not deceived.

Furthermore, according to Ristovski, he did not give the

documents to the IRS (his sister did), and he did not otherwise

authorize their disclosure. Finally, Ristovski argues that the

documents were not "material" inasmuch as the payment of

cash for corporate expenses had nothing to do with the false

corporate tax returns.

These arguments are not without flaws. Although the

replacement invoices were given to the IRS agent by

Ristovski's sister, for example, the jury was entitled to find

that she was acting as his attorney at the time, just as it could

find that Ristovski himself had instructed Formosa to create

the new documents with a view to their delivery to the IRS.

Moreover, Ristovski arranged for new documents to be

created even where some original paperwork was available.

(The original paperwork was later taken from Formosa in a

drug raid.) Formosa -- who apparently owed Ristovski money

at the time in question -- testified that the documents were

reconstructed largely from memory, although he did rely to

some extent on existing receipts for items he had bought for

use in making repairs to Precision's vehicles. He admitted to

simply making up some figures to suit Ristovski's needs, and

he testified that the numbers given were merely guesstimates.

The IRS, for its part, was unable to substantiate the payments

reported in the replacement documents.

Given, as we have said, that our task is to determine

"whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt," see Jackson, 443 U.S. at 319, we conclude

that Ristovski's conviction for submission of false documents

must be affirmed. The argument regarding materiality does

not persuade us otherwise. Contrary to what Ristovski

suggests, the documents need not have been relevant to the tax

evasion. These documents probably had such relevance, in our

view, but the law only requires that the falsities be material to

the documents themselves. See 26 U.S.C. §§ 2707. Here the

documents set forth amounts -- and perhaps entire transactions

-- that were fictitious. This would certainly be material to any

reconstructed invoice.

9a

B. Lack of "Willfulness" Jury Instruction

Kistovski argues that the alleged insufficiency of the

evidence as to his willfulness in subscribing the false

corporate returns was exacerbated [*14] by the court's failure

to give a requested jury instruction as to the meaning of

"willfulness" in this context.

Refusal to give a jury instruction is reversible error if:

"(1) the omitted instructions are a correct

statement of the law; (2) the instruction is not

substantially covered by other delivered

charges; and (3) the failure to give the

instruction impairs the requesting party's

theory of the case. It is only when the

instructions given, viewed as a whole, are

misleading, that a reversal of judgment is

warranted." Sutkiewicz v. Monroe County

Sheriff, 110 F.3d 352, 361 (6th Cir. 1997).

Although the trial court refused to give the requested

instruction on willfulness with respect to the corporate tax

returns, the court did instruct the jury that, as to all the

counts, the "Government must prove beyond a reasonable

doubt that the Defendant acted willfully. To act willfully

means to act voluntarily and deliberately and intending to

violate a known legal duty. Negligent conduct is not sufficient

to constitute willfulness." This differed from Ristovski's

proposed instruction only in the last sentence, where Ristovski

asked for this formulation: "Mere negligence, inadvertence,

mistake, a careless disregard for the truth, or even gross

negligence is not sufficient to constitute willfulness." We

believe that the requested instruction was “substantially

covered by other delivered charges," and the instructions as

10a

given clearly applied to the corporate tax return counts.

Viewed as a whole, the instructions were not misleading.

C. Multiplicity of Counts for Submission of

False Documents

Ristovski maintains that the eight misdemeanor counts

based on the submission of the recreated invoices were

multiplicitous. An indictment offends the rule against

multiplicity when it charges one criminal offense in several

counts. See United States v. Hart, 70 F.3d 854, 859 (6th Cir.

1995), cert. denied, 517 U.S. 1127, 134 L. Ed. 2d 534, 116

S. Ct. 1368 (1996). Here the documents were all submitted to

the IRS together, arguably giving rise to only one offense. But

Ristovski did not raise the multiplicity issue prior to trial, and

he thus waived any claim that the indictment should be

dismissed on that ground. See id. 70 F.3d at 860 (citing Rule

12(b)(2), Fed. R. Crim. P.), and United States v. Colbert, 977

F.2d 203, 208 (6th Cir. 1992).

As far as sentencing is concerned, we note that

Risotvski's 12-month sentences for the misdemeanors are to

be served concurrently. This being so, it makes no practical

difference whether the counts were multiplicitous or not.

Furthermore, Ristovski raised this issue in a footnote only.

An argument raised in this manner merits little, if any,

attention. See Becherer v. Merrill Lynch, Pierce, Fenner &

Smith, 43 F.3d 1054, 1058-59 (6th Cir.), cert. denied, 516

U.S. 912, 133 L. Ed. 2d 203, 116 S. Ct. 296 (1995).

D. Evidentiary Rulings

a. Evidence as to Money Received in 1988

lla

Because he was not charged with tax evasion for 1988,

Ristovski argues that the trial court erred in declining, as it

did, to exclude evidence of the amount of money Precision

received from Mason in 1988 in the form of checks payable

to cash. Because the 1988 receipts were part of the same tax

evasion scheme as that charged, however, the evidence was

admissible as “intrinsic” to the charged conduct. The

evidentiary rule on which Ristovski's relies -- Rule 404(b),

Fed. R. Evid. -- need not be applied here. See United States

v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). And even

under [*17] Rule 404(b), which was considered by the district

court in denying Ristovski's motion in limine on this matter,

the evidence was admissible to show willfulness. See United

States v. Ausmus, 774 F.2d 722, 727-28 (6th Cir. 1985). In

addition, an appropriate limiting instruction was given. We

see no basis for a reversal on this point.

2. Information on Cash Transaction Reporting

Requirement

Ristovski complains that the government should not

have been allowed to introduce evidence that the IRS requires

banks to file reports for cash transactions involving more than

$10,000 and should not have been allowed to bring out the

fact that Ristovski directed that checks totaling more than

$10,000 be cashed at different bank branches. Again,

however, this information was relevant under Rule 404(b) as

indicative of willfulness.

J Testimony by Joan Penny

Ristovski argues that Joan Penny should not have been

allowed to testify that she told Ristovski to plead guilty and

that he refused because the government would not offer him

12a

ee eS oe

less than a felony conviction. This testimony, he says, was

gratuitous and vindictive.

A cautionary instruction was given, however, and Ms.

Penny's testimony does not seem particularly damning in

context. She had made it clear to Ristovski that she did not

want to become involved in the litigation, and her testimony

could easily be read to mean that she asked him to plead guilty

in order to keep her out of the matter. Any error, we believe,

was harmless.

Ms. Penny also testified that Ristovski was subject to

a restraining order as a result of having threatened to kill

everyone in Penny's house. No objection to this testimony

was made, so it can be reviewed for plain error only. See

United States v. Kelly, 204 F.3d 652, 2000 U.S. App. LEXIS

2696 (6th Cir. 2000). Given the context of the statement --

establishing the current extent of contact between Penny and

Ristovski -- no plain error is evident. Moreover, the jury

already knew that Penny and Ristovski were no longer on

amiable terms and that Ristovski had a violent temper. Her

testimony added little to the story.

4. Impeachment of Formosa by the

Government

Ristovski complains that the court erred in allowing the

government to impeach Chris Formosa, its own witness. This

impeachment occurred when the government showed that

Formosa has a conviction on his record, that he was

interviewed by the IRS while in jail, and that belongings he

kept in his employer's garage had been subject to a search by

the Drug Enforcement Administration.

13a

Any party is allowed to impeach a witness, even the

party calling the witness. See Rule 607, Fed. R. Evid.

Formosa's credibility was at issue because of his testimony

regarding the validity of the replacement documents he created

for Ristovski. In addition, his presence in jail, and the DEA

raid, helped explain why he did not know where his original

paperwork was at the time of trial. We reject this assignment

of error.

E. Acceptance of Partial Jury Verdict

After more than six hours of deliberation, the jury

informed the court that it had reached a unanimous verdict as

to Counts III through XII. Defense counsel objected to the

receipt of a partial verdict, urging that in further considering

Counts I and II the jury might reconsider the other counts.

The court nonetheless elected to receive the partial verdict.

After deliberating further, the jury then asked the court this

question: "Will our verdict on Counts III through XII stand if

we are hung on [*20] Counts I and II?" Ristovski argues that

this confirms that the jury did not understand the

consequences of a partial verdict and might have reconsidered

its decision as to Counts III through XII had it been able to.

Whether to accept a partial verdict is left to the sound

discretion of the trial court. See United States v. Benedict, 95

F.3d 17, 19 (8th Cir. 1996). No abuse of that discretion is

evident here, where the court gave the jury the option of

continuing deliberations on all counts or proceeding with a

partial verdict on the decided counts. The jury's subsequent

note can reasonably be interpreted as seeking reassurance that

being hung on two counts -- which would lead to a mistrial —

would not negate the verdict already rendered on the other

counts.

There was no inconsistency, moreover, in finding the

defendant guilty on Counts III through XII but not on Counts

I and II. Further deliberations on Counts I and II did not

necessarily require reconsideration of the other counts so as

to make a partial verdict inappropriate. Cf. Benedict, 95 F.3d

at 20.

F. Sentencing Issues

1. Use of the 1997 Guidelines

The presentence investigation report, which was

largely followed by the district court in sentencing Ristovski,

used the 1997 edition of the sentencing guidelines, the edition

that was expected to be in effect at the time of sentencing. See

18 U.S.C. §§ 3553 and U.S.S.G. §§ 1B1.11(a). At the

sentencing hearing the court observed that the 1994 edition

was applicable to Ristovski, this having been the edition in

effect in 1995 when the misdemeanors were committed. The

court noted, however, that the 1997 edition was identical to

the 1994 edition insofar as the relevant sections were

concerned.

Ristovski argues that the 1991 edition of the guidelines

should have been used, his felony convictions having been

based on the subscription of tax returns for 1989 and 1990.

These crimes occurred prior to 1993 guideline amendments

that increased sentencing offense levels for corporate tax

evasion. The increase, in Ristovski's case, came to two levels.

It seems to us that Ristovski's argument has

considerable force, notwithstanding the "one book" rule

embodied in U.S.S.G. §§ 1B1.11(b)(2) and notwithstanding

the rule that in general requires the use of an amended edition

of the guidelines when a defendant has been convicted of one

15a

offense committed before the amendment and one committed

afterwards. U.S.S.G. §§ 1B1.11(b)(3). See Miller v. Florida,

482 U.S. 423, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987),

where the Ex Post Facto Clause of the United States

Constitution-was held to bar retrospective application of an

amendment in a state sentencing scheme. The Miller

amendment was one that substantially disadvantaged the

defendant, whose crime had been committed before the

amendment was adopted; the Court declined to let the

amendment be applied notwithstanding that the state statute

had from the beginning warned of future amendments.

Ordinarily, as explained in the Background section of

the Commentary accompanying U.S.S.G. §§ 1B1.11 (1997

ed.), ex post facto considerations pose no bar to application of

the guidelines as written (i.e., to use an amended edition) in

situations where, as here, at least one of a series of offenses

was committed after the amendment had become effective.

This is so, basically, because relevant conduct involving the

earlier offense or offenses can properly be taken into account

in fixing the punishment for the post-amendment offense or

offenses. In the instant case, however, the post-amendment

offenses were misdemeanors for which the maximum term of

imprisonment authorized by statute -- 12 months -- was the

sentence actually imposed by the court. Under these

circumstances it is not readily apparent to us how the

commission of misdemeanors after the 1993 amendment could

properly be used to ratchet up the sentence for felonies

committed before the amendment. For purposes of this appeal,

in any event, we shall assume that Ristovski should have been

sentenced under the 1991 edition of the guidelines.

2. Use as Relevant Conduct of Uncharged

Violations Involving 1988 Returns

16a

Ristovski takes issue with the district court's use of tax

violations associated with the 1988 returns, which were not

included in the indictment, in determining the tax loss under

the sentencing guidelines. His complaint is not with the use of

uncharged relevant conduct as such, see United States v.

Pierce, 17 F.3d 146, 150 (6th Cir. 1994), but with the use of

the full amount ($105,000) received from Mason in 1988 in

the form of checks payable to cash. Ristovski argues that he

had no way to rebut this figure, the bank records from 1988

no longer being available. Citing United States v. Silverman,

976 F.2d 1502, 1506 (Sth Cir. 1991), cert. denied, 507 U.S.

990, 123 L. Ed. 2d 159, 113 S. Ct. 1595 (1992), he contends

that none of the $105,000 should have been included. At the

very least, he asserts, $60,000 of the Mason advances was

used to refinance Precision's real property, and this and other

legitimate expenses should have been deducted from the

$105,000.

We are not persuaded. It is clear from testimony

throughout the trial that numerous records from 1988 were

available. These showed that no deposits of the proceeds of

Mason checks payable to cash were made to the corporate

account or otherwise picked up as corporate income. As to the

refinancing, the property in question was titled in the name of

Ristovski's sister, not in the name of the company. After the

refinancing, the company paid rent to the sister. The $60,000

thus cannot count as an expense for the business. Other items

pointed to by Ristovski are not supported in the record either.

3. Failure to Aggregate Tax Loss from

Personal Tax Evasion

The government argues here, as it did at the sentencing

hearing, that the tax loss used to determine Ristovski's base

offense level should have included both the loss from his

17a

personal tax evasion ($55,384) -- a loss supported by a

preponderance of the evidence, notwithstanding the absence

of a conviction -- and the loss resulting from the false

corporate tax returns ($33,062), for an aggregate loss of

$88,446. This figure would have resulted in a base offense

level of 12, under the 1991 guidelines, rather than 11.

The sentencing court refused to aggregate the losses.

The court used only the $55,384,’ expressing some concern

that to do otherwise might constitute double counting, the

same money not having been reported on either the personal

or corporate returns. But in United States v. Cseplo, 42 F.3d

360 (6th Cir. 1994), a case with facts nearly identical to those

presented here, we held that the personal tax loss and the

corporate tax loss must be aggregated. See Cseplo, 42 F.3d at

364-65. That precedent is controlling in the instant case. The

losses should have been aggregated, thereby raising the

offense level by one.

4. Exclusion of Misdemeanors in Determining

Criminal History Category

In determining Ristovski's criminal history category,

the presentence investigation report counted two previous

misdemeanor convictions. One was for assault and battery and

the other for driving with a revoked license. The court

sustained Ristovski's objection to the use of these convictions,

thereby reducing his criminal history category from Category

II to Category I.

: For reasons not clear from the record, Ristovski was

sentenced on the amount of tax loss from his personal tax evasion

rather than the amount from the corporate tax evasion. He has not

raised this issue on appeal.

18a

In support of his objection, Ristovski argued that (1)

there was inadequate documentation of the convictions; (2)

there was no proof that Ristovski had been represented by

counsel when he pleaded guilty; and (3) as to the revoked

license offense, his sentence did not meet the requirements of

U.S.S.G. §§ 4A1.2.

The district court sustained the objection on the ground

that the government could not show that Ristovski had been

represented by counsel. The Supreme Court, however, has

stated that the burden of proof as to the presence of counsel is

properly placed on the defendant. See Parke v. Raley, 506

U.S. 20, 30-31, 121 L. Ed. 2d 391, 113 S. Ct. 517 (1992).

The district court should have presumed the validity of the

convictions unless adequately rebutted by the defendant. See

United States v. McGlocklin, 8 F.3d 1037, 1043 (6th Cir.

1993), cert. denied, 511 U.S. 1054, 128 L. Ed. 2d 341, 114

S. Ct. 1614 (1994). See also United States v. Cordero, 42

F.3d 697, 701 (1st Cir. 1994), United States v. Ruo, 943 F.2d

1274, 1276 (11th Cir. 1991), and United States v. Gallman,

907 F.2d 639, 643 (7th Cir.), cert. denied, 499 U.S. 908, 113

L. Ed. 2d 219, 111 S. “t. 1110 (1991). Moreover, the

probation officer testified that she verbally confirmed with the

relevant state courts that their records indicated that Ristovski

had been represented by counsel.

Ristovski's argument as to the lack of documentation

has little merit. Although copies of the judgments were not

provided, it is clear that Ristovski's counsel had paperwork

regarding at least one of the convictions -- he referred to it

when arguing about Ristovski's sentence in the driving-with-

revoked-license incident. Furthermore, the probation officer

testified that she verified the convictions and that the courts

had microfiche records of the incidents.

19a

As to Ristovski's final argument, U.S.S.G. §§ 4A1.2

provides that driving-with-revoked-license offenses are

counted in a criminal history "only if (a) the sentence was a

term of probation of at least 1 year or a term of imprisonment

of at least 30 days. . . ." U.S.S.G. §§ 4A1.2(c)(1) (1991).

The application note to this section explains that if a defendant

receives a sentence that allows him to elect a fine or other

non-incarcerative punishment as an alternative to

incarceration, the sentence is deemed not to have entailed

incarceration at all. See U.S.S.G. §§ 4A1.2(c)(1) comment.

(n.4). In his objections to the presentence report, Ristovski

argued that he received such an elective sentence and that the

conviction should therefore not be counted.

This argument -- which essentially concedes the

existence and validity of the conviction -- is incorrect as to the

sentence's terms. It became evident at the sentencing hearing

that the sentence for the licensing offense entailed a fine of

$100, costs of $205, “and 30 Days or 60 Days in Macomb

County Jail." (Emphasis added.) Ristovski was given 30 days'

incarceration with release for work. His sentence thus

qualified under §§ 4A1.2.

In sum, we conclude that the sentencing court should

not have sustained Ristovski's objection on the ground it did.

Ristovski's alternative arguments as to why the court's

decision was correct have no merit. He should have been

placed in Criminal History Category II.

Had this been done, and had the sentencing court used

the 1991 guidelines and aggregated the tax losses, the

guideline range for the felony counts would have been 18-24

months. This, as it happens, is precisely the range that was

used. Accordingly, we see no need for a remand.

20a

Both the convictions and the sentences are

AFFIRMED.

2la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

September 12, 2002, Argued

December 4, 2002, Decided :

December 4, 2002, Filed :

No. 01-1747

i

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, ) i

)

v. )

) '

LJUPCO RISTOVSKI, )

Defendant-Appellant. )

)

PRIOR HISTORY: Appeal from the United States

District Court for the Eastern District of Michigan at Detroit.

No. 96-80463. Bernard A. Friedman, District Judge.

DISPOSITION: Affirmed.

OPINION BY: Robert Holmes Bell

OPINION:

22a

BELL, District Judge. Defendant-Appellant Ljupco

Ristovski appeals the district court order denying his motion

for new trial filed under Fed. R. Crim. P. 33.

Ristovski was convicted by a jury on October 15,

1997, of two counts of subscribing false corporate tax returns

in violation of 26 U.S.C. §§ 7206(1) and eight counts of

submitiing false documents to the Internal Revenue Service in

violation of 26 U.S.C. §§ 7207. Ristovski was sentenced on

June 16, 1998, to 18 months imprisonment. His conviction

and sentence were affirmed on April 18, 2000. United States

v. Ristovski, 2000 U.S. App. LEXIS 7282, Nos. 98-1749 &

98-1868 (6th Cir. Apr. 18, 2000). His petition for writ of

certiorari was denied on December 4, 2000, and the mandate

was issued by the Court of Appeals on December 10, 2000.

On March 19, 2001, Ristovski filed a motion for new

trial on the basis of newly discovered evidence. The district

court, in an oral opinion, denied the motion for lack of

jurisdiction because it was untimely. The district court noted

that even if it did have jurisdiction, it would deny the motion

on the merits because the evidence could have been discovered

earlier and was cumulative. The written order denying

Ristovski's motion for new trial was entered on June 4, 2001.

Motions for new trial are governed by Rule 33 of the

Federal Rules of Criminal Procedure. Prior to December l,

1998, Rule 33 required that motions for new trial based on

newly discovered evidence be brought within two years after

final judgment.’ Ristovski's motion for new trial, which was

' Prior to the December 1, 1998 amendments, Rule 33

read as follows:

The court on motion of a defendant may grant a

23a

filed on March 19, 2001, would have been timely under the

Rule 33 in effect at the time the offense was committed

because it was filed within two years after final judgment.

Amendments to Rule 33 were promulgated on April 24, 1998,

and went into effect on December 1, 1998. Rule 33 as

amended requires that motions for new trial based on newly

discovered evidence be brought within three years after the

verdict or finding of guilty.2 The purpose of the amendments

new trial to that defendant if required in the

interest of justice. If trial was by the court without

a jury the court on motion of a defendant for a new

trial may vacate the judgment if entered, take

additional testimony and direct the entry of a new

judgment. A motion for a new trial based on the

ground of newly discovered evidence may be made

only before or within two years after final

judgment, but if an appeal is pending the court

may grant the motion only on remand of the case.

A motion for a new trial based on any other

grounds shall be made within 7 days after verdict

or finding of guilty or within such further time as

the court may fix during the 7-day period.

Fed. R. Crim. P. 33 (1997).

2 Rule 33, after the 1998 amendments, provides:

On a defendant's motion, the court may grant a

new trial to that defendant if the interests of justice

so require. If trial was by the court without a jury,

the court may - on defendant's motion for new trial

- vacate the judgment, take additional testimony,

and direct the entry of a new judgment. A motion

for new trial based on newly discovered evidence

may be made only within three years after the

24a

to Rule 33 was to bring uniformity in the manner in which the

time period for new trial motions based on newly discovered

evidence was calculated.’ Ristovski's motion for new trial is

untimely under the amended Rule 33 because it was filed

verdict or finding of guilty. But if an appeal is

pending, the court may grant the motion only on

remand of the case. A motion for a new trial based

on any other grounds may be made only within 7

days after the verdict or finding of guilty or within

such further time as the court may fix during the 7-

day period.

Fed. R. Crim. P. 33.

* The Advisory Committee explained that using the date

of the "final judgment" as the triggering event caused disparity in

the amount of time available for a defendant to file a motion for

new trial in the event of an appeal because some courts measured

the two-year period from the date of the appellate court's judgment

and other courts from the date of its mandate:

It is the intent of the Committee to remove that

element of inconsistency by using the trial court's

verdict or finding of guilty as the triggering event.

The change also furthers internal consistency

within the rule itself; the time for fiiing a motion

for new trial on any other ground currently runs

from that same event.

Fed. R. Crim. P. 33 Advisory Committee Notes,

1998 Amendments. The time period for filing

motions for new trial was expanded from two

years to three years "to compensate for what would

have otherwise resulted in less time than that

currently contemplated in the rule for filing such

motions." Jd.

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approximately five months after the three-year period

measured from the date of his verdict.

Ristovski's first argument on appeal is that the district

court's conclusion that his motion for new trial was untimely

under Rule 33 as amended in 1998 violates the Ex Post Facto

Clause of the United States Constitution.* The timeliness of

Appellant's motion for new trial is a threshold question

because if a motion for new trial is untimely, the court lacks

jurisdiction to consider it on the merits. United States v.

Koehler, 24 F.3d 867, 869 (6th Cir. 1994) (citing United

States v. Smith, 331 U.S. 469, 475-76, 91 L. Ed. 1610, 67 S.

Ct. 1330 (1947)). See also United States v. Moreno, 181 F.3d

206, 212 (2d Cir. 1999) (court lacks jurisdiction to consider

untimely motion for new trial) (citing cases). Whether the

district court's application of amended Rule 33 was a violation

of the Ex Post Facto Clause is a legal question we review de

novo. See United States v. Futrell, 209 F.3d 1286, 1289 (6th

Cir. 2000) ("A defendant's claim that his or her sentence was

imposed in violation of the ex post facto clause presents a

question of law, and we review questions of law de novo"

(quoting United States v. Logal, 106 F.3d 1547, 1550-51

(11th Cir. 1997))).

The Ex Post Facto Clause forbids Congress to enact

any law “which imposes a punishment for an act which was

not punishable at the time it was committed; or imposes

additional punishment to that then prescribed." Weaver v.

Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960

(1981) (footnote omitted) (quoting Cummings v. Missouri, 71

* Article I of the United States Constitution provides that

neither Congress nor any State shall pass any "ex post facto Law."

U.S. Const., art. I, §§ 9, cl. 3; art. I, §§ 10, cl. 1.

26a

U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867)). "Two

critical elements must be present for a criminal or penal law

to be ex post facto: it must be retrospective, that is, it must

apply to events occurring before its enactment, and it must

disadvantage the offender affected by it." Weaver, 450 U.S.

at 29 (footnote omitted). See also Kellogg v. Shoemaker, 46

F.3d 503, 509 (6th Cir. 1995). With respect to the first

element, retrospective application, "the critical question is

whether the law changes the legal consequences of acts

completed before its effective date." Weaver, 450 U.S. at 31.

"The focus in determining whether a new law violates the ex

post facto clause is the time the offense was committed."

Kellogg, 46 F.3d at 509 (citing Weaver, 450 U.S. at 31). In

this case the offenses were committed in 1990, 1991, and

1997. Rule 33 was amended in December 1998. The district

court's application of the time limitation in amended Rule 33

Was retrospective because it changed the criminal review

procedure for offenses occurring before the date of its

enactment.

Retrospective application alone, however, is not

enough to make out an ex post facto violation. The Ex Post

Facto Clause does not guarantee that a criminal defendant's

Case will be governed in all respects by the law in force when

the crime was committed. Dobbert v. Florida, 432 U.S. 282,

293, 53 L. Ed. 2d 344, 97 S. Ct. 2200 (1977). "The

constitutional provision was intended to secure substantial

personal rights against arbitrary and oppressive legislation,

see Malloy v. South Carolina, 237 U.S. 180, 183, 59 L. Ed.

905, 35 S. Ct. 507 (1915), and not to limit the legislative

control of remedies and modes of procedure which do not

affect matters of substance." Dobbert, 432 U.S. at 293

(quoting Beazell v. Ohio, 269 U.S. 167, 171, 70 L. Ed. 216,

46 S. Ct. 68 (1925)). Thus, no ex post facto violation occurs

if a change does not alter "substantial personal rights," but

27a

merely changes "modes of procedure which do not affect

matters of substance." Miller v. Florida, 482 U.S. 423, 430,

96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987) (quoting Dobbert,

432 U.S. at 293). "Even though it may work to the

disadvantage of a defendant, a procedural change is not ex

post facto." Dobbert, 432 U.S. at 293. See also Landgraf v.

USI Film Prods. , 511 U.S. 244, 275 n.28, 128 L. Ed. 2d 229,

114S. Ct. 1483 (1994) ("While we have strictly construed the

Ex Post Facto Clause to prohibit application of new statutes

creating or increasing punishments after the fact, we have

upheld intervening procedural changes even if application of

the new rule operated to a defendant's disadvantage in the

particular case."). On the other hand, a change in the law that

alters a substantial right can be ex post facto "even if the

statute takes a seemingly procedural form." Weaver, 450 U.S.

at 29 n.12 (citing Thompson v. Utah, 170 U.S. 343, 354-55,

42 L. Ed. 1061, 18S. Ct. 620 (1898); Kring v. Missouri, 107

U.S. 221, 232, 27 L. Ed. 506, 2 S. Ct. 443 (1882)).

The Supreme Court has recognized that the distinction

between substance and procedure might sometimes prove

elusive. Miller, 482 U.S. at 433. The general rule that has

emerged from the case law, however, is that a change is

procedural, and does not affect a substantial right if the

change does "not increase the punishment nor change the

ingredients of the offense or the ultimate facts necessary to

establish guilt." Weaver, 450 U.S. at 31 n.12 (quoting Hopt

v. Utah, 110 U.S. 574, 590, 28 L. Ed. 262, 4S. Ct. 202

(1884)). Thus, in Weaver the Court found that Florida's

revised good-time provision violated the Ex Post Facto Clause

because it constricted an inmate's opportunity to earn early

release, and thereby made "more onerous the punishment for

crimes committed before its enactment." 450 U.S. at 35-36.

In Miller the Court held that because a change in the

sentencing guidelines after the offense was committed

28a

increased the number of primary offense points assigned to

sexual offenses by 20%, the change could not be deemed

procedural because it "directly and adversely" affected the

sentence the petitioner would receive. Miller, 482 U.S. at

433-35. In Dobbert, on the other hand, the Court rejected the

petitioner's argument that changes in the Florida death penalty

Statute posed an ex post facto violation: "The change in the

Statute was Clearly procedural. The new statute simply altered

the methods employed in determining whether the death

penalty was to be imposed; there was no change in the

quantum of punishment attached to the crime." 432 U-S. at

293-94.° The Dobbert Court compared the case before it to

Hopt v. Utah, 110 U.S. 574, 28 L. Ed. 262, 4S. Ct. 202

(1884), in which the Court considered a change in the rules of

evidence between the date of the offense and the date of the

trial: "Even though this change in the law obviously had a

detrimental impact upon the defendant, the Court found that

the law was not ex post facto because it neither made criminal

a theretofore innocent act, nor aggravated a crime previously

committed, nor provided greater punishment, nor changed the

proof necessary to convict." Dobbert, 432 U.S. at 293 (citing

Hopt, 110 U.S. at 589).

We analyze Appellant's claim that the retroactive

application of amended Rule 33 violated the Ex Post Facto

Clause with these principles in mind.

. Under the former procedure the imposition of the

death penalty was presumed unless the jury made a

recommendation for mercy. Under the new procedure there was a

separate sentencing hearing where the defendant could present

mitigating evidence. The jury would render an advisory verdict

based upon its perception of aggravating and mitigating factors in

the case, after which the Court would make the final sentencing

determination. Dobbert, 432 U.S. at 294-95.

29a

The question of whether the retroactive application of

Rule 33 is substantive or procedural has not been widely

addressed in the case law. The Ninth Circuit, in an

unpublished decision, held that the 1998 amendments to Rule

33 resulted in a procedural change, not an increase in

punishment, and that its application to a defendant who was

convicted in 1994 did not constitute an ex post facto violation.

United States v. Tavizon, 1 Fed. Appx. 722, 2001 WL 38416,

at *4 (9th Cir. 2001).°

We are aware of only one case that has held the

application of amended Rule 33 to constitute an ex post facto

violation. In United States v. West, 103 F. Supp. 2d 1301

(N.D. Ala. 2000), the district court found that the change

made in Rule 33 while the defendant's appeal was pending

was a “substantive change" because it constituted "a very

material alteration in the procedural rights of persons who

claim to be entitled to a new trial because of newly discovered

evidence." Jd. at 1303. The court accordingly held that the

retroactive application of the amended rule while a

. This court, in an unpublished opinion, applied

amended Rule 33 to bar a 1999 motion for new trial on a 1994

conviction that had become final in 1996. United States v. Blue,

2000 U.S. App. LEXIS 31043, No. 99-4131, 2000 WL 1800499

(6th Cir. Nov. 30, 2000). Because the motion would have been

untimely under either the old or the amended Rule 33, it was

unnecessary in Blue to consider the ex post facto implications of

applying Rule 33 as amended. At least two other courts have

similarly applied amended Rule 33 to cases where the verdicts were

rendered before the effective date of the amendment, without

discussion. See United States v. Robinson, 11 Fed. Appx. 709,

2001 WL 180559 (9th Cir. 2001); United States v. Camacho, 1999

U.S. Dist. LEXTS 18501, No. $12 94 CR. 313, 1999 WL 1084229

(S.D. N.Y. Dec. 1, 1999).

30a

defendant's appeal was pending violated the ex post facto

provision. Jd.

It is significant that in West the defendant was

sentenced in November 1995. Accordingly, if amended Rule

33 were applied to his case, his three-year period for filing a

motion for new trial on the basis of newly discovered evidence

would have expired before the amendments to Rule 33 even

went into effect. The district court was appropriately

concerned about the fairness of applying amended Rule 33

when to do so would eliminate the defendant's opportunity to

file a motion for new trial. However, the court in West did not

have to make its decision on constitutional ex post facto

grounds. At the time the amendments to Rule 33 were

promulgated, the Supreme Court specified that the

amendments would apply to all pending criminal cases

“insofar as just and practicable." Supreme Court Order 98-17,

April 24, 1998. The West court could have avoided the

constitutional issue by following United States v. Jean, 1999

U.S. Dist. LEXTS 6880, 1999 WL 301652 (N.D. Ill. Apr. 29,

1999), and holding that it would not be "just and practicable"

to apply the amended Rule 33 to cases where the three years

expired before the effective date of the amended rule.

Unlike the defendants in West and Jean, Ristovski's

ability to file a motion for new trial on the basis of newly

discovered evidence was not eliminated by the application of

amended Rule 33. There was no denial of his substantive right

to file a motion for new trial. The only effect of the

amendment was to decrease the time frame in which he could

file his motion. Ristovski was convicted on October 15, 1997.

After Rule 33 was amended on December 1, 1998, Ristovski

still had until October 15, 2000, more than nineteen months,

to file a motion for new trial on the basis of newly discovered

evidence. Because he had ample time to bring his motion for

3la

new trial, application of Rule 33 to him was just and

practicable. Application of the time limitation under amended

Rule 33 merely changed the mode of procedure. It did not

assign "more disadvantageous criminal or penal consequences

to an act than did the law in place when the act occurred,"

Weaver, 450 U.S. at 31 n.13, nor did it affect matters of

substance or alter substantial personal rights of the defendant.

See Miller, 482 U.S. at 430. Like the Court in Dobbert, we

find that the following language from Hopt summarizes our

conclusion that the change was procedural and not a violation

of the Ex Post Facto Clause:

The crime for which the present defendant was

indicted, the punishment prescribed therefor,

and the quantity or the degree of proof

necessary to establish his guilt, all remained

unaffected by the subsequent statute.

Dobbert, 432 U.S. at 294 (quoting Hopt, 110 U.S. at 589-90).

Accordingly, we affirm the district court's application of Rule

33 as amended and its determination that Ristovski's motion

for new trial was untimely.

Because we affirm the district court's determination

that the motion for new trial was untimely, we need not

address Ristovski's alternative arguments that the district court

abused its discretion when it entered its alternative finding that

Ristovski was not entitled to relief on the merits of his motion

for new trial.

In summary, we AFFIRM the district court's denial of

Defendant-Appellant Ristovski's motion for new trial.

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APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

June 5, 2001, Filed

Criminal No. 96-80463

Hon. Bernard A. Friedman

UNITED STATES OF AMERICA,

Plaintiff,

LJUPCO RISTOVSKI,

)

)

)

V. )

)

)

Defendant. )

)

ORDER DENYING DEFENDANT’S

MOTION FOR NEW TRIAL

On May 23, 2001, defendant Ljupco Ristovski’s

motion for new trial came before the court. A hearing was

held and oral arguments heard. For the reasons stated on

record,

IT IS ORDERED that defendant’s motion for new

trial is denied.

33a

Dated: June 4, 2001

/s/

Bernard A. Friedman

United States District Judge

Copy Mailed This Date To:

Ross I. MacKenzie

Assistant U.S. Attorney

Harold Z. Gurewitz, Esq.

34a