# Petition for Writ of Certiorari — Ristovski v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 979

## Text

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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

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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

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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

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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.

25a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1239%3A1. Public record. Not legal advice.