In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2081
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSEPH D IEKEMPER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 08-30139-01—G. Patrick Murphy, Judge.
A RGUED JANUARY 11, 2010—D ECIDED A PRIL 28, 2010
Before E ASTERBROOK, Chief Judge, and K ANNE, Circuit
Judge, and K ENNELLY, District Judge.
K ANNE, Circuit Judge. Joseph Diekemper pled guilty
to conspiracy to commit bankruptcy fraud, conspiracy to
commit mail fraud, making false statements for the pur-
The Honorable Matthew F. Kennelly, judge for the United
States District Court for the Northern District of Illinois,
sitting by designation.
2 No. 09-2081
pose of influencing the United States Department
of Agriculture (“USDA”) Commodity Credit Corpora-
tion, and perjury. Diekemper’s wife and co-conspirator,
Margaret Diekemper, was sentenced first and received
two years’ probation for her involvement in the con-
spiracy. As a condition of that probation, Mrs. Diekemper
was prohibited from all contact with her husband during
those two years. Diekemper was sentenced subsequently,
and after receiving a four-level enhancement for his
leadership role, he received a within-guidelines sentence
of 120 months’ imprisonment.
Diekemper appeals his sentence, alleging that (1) his
wife’s probation condition violates his fundamental
right to a marital relationship; (2) the district court judge’s
failure to recuse himself for bias violates Diekemper’s
right to due process; (3) the district court’s application of
the sentencing enhancement was in error; and (4) the
district court’s failure to weigh all of the sentencing
factors in 18 U.S.C. § 3553 was in error. We affirm.
I. B ACKGROUND
Joseph and Margaret Diekemper were dairy farmers
who had been married for thirty-five years. The couple
filed for bankruptcy in May 2004. For close to four years
thereafter Diekemper engaged in a scheme to conceal
assets from the bankruptcy court. Eventually the gov-
ernment discovered Diekemper’s conduct and indicted
him on twenty-one counts. He ultimately pled guilty to
five of the charged counts.
No. 09-2081 3
At Diekemper’s plea hearing, he signed a stipulation of
facts admitting to a variety of illegal conduct, including:
undervaluing property and assets by more than 2.5 million
dollars, hiding farm equipment on friends’ properties,
titling and selling vehicles and equipment in others’
names, using the mail service to effectuate these
transfers, failing to disclose financial information to the
bankruptcy trustee, fraudulently obtaining agricultural
subsidies from the USDA, and urging others to lie
under oath during his bankruptcy proceedings. In the
interim between Diekemper’s plea hearing and his sen-
tencing hearing, Mrs. Diekemper was sentenced for
her participation as a co-conspirator in the scheme. A
condition of her two-year probation was that she
refrain from all contact with Diekemper during those
two years.
One month after Mrs. Diekemper’s sentencing,
Diekemper had his own sentencing hearing. During
that hearing, Diekemper did not challenge his wife’s
probation condition. (See Appellee’s App. at 39) (“[M]y
understanding of the ruling was that [Mrs. Diekemper]
was not permitted contact. . . . And I can stand here and
question the validity of that judgment, I’m not going
to do that.” (statement by Diekemper’s counsel)). But
Diekemper did contest the four-level enhancement to his
sentence for his role as the organizer of an extensive
criminal activity, pursuant to U.S.S.G. § 3B1.1(a). Ulti-
mately, however, the district court found the four-
level enhancement appropriate and sentenced Diekemper
to 120 months’ imprisonment for his mail fraud and
60 months’ imprisonment on each of the other counts,
with each sentence to run concurrently.
4 No. 09-2081
II. A NALYSIS
Diekemper now challenges various aspects of his sen-
tencing. We address each of his contentions in turn.
A. Mrs. Diekemper’s Probation Condition
Diekemper first argues that his wife’s probation condi-
tion violates his fundamental right to a marital relation-
ship. Although the government urges us to find that
Diekemper waived this argument through his attorney’s
statement at sentencing (and indeed, he may have),
we need not address the issue of waiver because
Diekemper’s argument is not properly before us in the
first instance, and in any event, Diekemper lacks
standing to pursue it.
To raise a claim before an Article III court, a litigant
must present a case or controversy that can be properly
adjudicated by the federal courts. O’Sullivan v. City of
Chicago, 396 F.3d 843, 853 (7th Cir. 2005). To be properly
before the federal courts, a litigant must have timely
appealed a final judgment, see generally Fed. R. App. P. 3-4;
Fairley v. Andrews, 578 F.3d 518, 521 (7th Cir. 2009) (“The
only prerequisites to appellate jurisdiction are a final
judgment and a timely notice of appeal.”), and have
standing to raise the challenged issue, Michigan v. U.S.
Environmental Protection Agency, 581 F.3d 524, 528 (7th
Cir. 2009). A litigant has standing when he demonstrates:
“(1) an injury in fact—an invasion of a legally protected
interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical;
No. 09-2081 5
(2) a causal connection between the injury and the
conduct complained of . . . ; and (3) a favorable decision
will likely redress the injury.” O’Sullivan, 396 F.3d at 854
(internal quotation marks omitted).
Diekemper’s argument fails at its inception because
the probation condition with which he takes issue was
decided in an entirely different case. He is appealing the
final judgment in his own case, not the final judgment
in Mrs. Diekemper’s case. Mrs. Diekemper neither took
issue with her probation condition nor appealed her
sentence. And that judgment is not now before us. We
therefore have no ability to reach the probation condi-
tion because the judgment imposing that condition
is not on appeal.
Even assuming that we could examine Mrs. Diekemper’s
probation condition, we fail to see how Diekemper can
prove causation and redressability, which, for purposes
of this case, seem readily intertwined. Although the
condition was imposed on his wife’s probation, Diekemper
argues that he has standing because his marriage is
affected by the terms of that condition; in essence, he
seems to argue that being “affected” by the condition is
enough to satisfy the three standing requirements. But
what Diekemper fails to realize is the mere fact that he
may suffer the effects of his wife’s probation condition
does not confer upon him Article III standing.
Diekemper is currently serving a prison sentence of
120 months. Without some affidavit from Mrs. Diekemper
that absent her probation condition she would visit her
husband, we have no way of knowing that she would in
6 No. 09-2081
fact do so. Without any corroboration, Diekemper’s own
statement that his marriage is affected because his wife
cannot visit him is unavailing. We are not at the pleading
stage of the case, where general allegations of fact are
enough to withstand a challenge. Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888-89 (1990); Lac Du Flambeau Band
of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490,
496 (7th Cir. 2005). Instead, “each element [of standing] . . .
must be supported by more than unadorned specula-
tion.” Plotkin v. Ryan, 239 F.3d 882, 885 (7th Cir. 2001).
Certainly, the district court’s sentence prohibiting
Mrs. Diekemper from seeing her husband could be the
reason she will have no contact with Diekemper for two
years. But again, without some statement from Mrs.
Diekemper to that effect, we have no way of knowing
whether, in the absence of that condition, she actually
would contact her husband. See Perry v. Village of Arlington
Heights, 186 F.3d 826, 829 (7th Cir. 1999) (explaining that
standing requires “a causal relationship between the
injury and the challenged conduct, such that the injury
can be fairly traced to the challenged action of the defen-
dant and not from the independent action of some
third party not before the court.”).
And because they are so intertwined in this case,
Diekemper’s failure to show causation also amounts to
a failure to demonstrate redressability. In the absence of
a causation showing, we simply cannot assume that if
we were to remand the injury complained of would be
remedied. Plotkin, 239 F.3d at 885 (stating specifically
that redressability must be proven). In fact, a sufficient
No. 09-2081 7
remedy would unlikely be available even if causation
were present because a remand would amount to a full
resentencing, yet again subject to the district court’s
broad discretion—which includes the discretion to
resentence Mrs. Diekemper thus preventing her from
seeing her husband through incarceration. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 562 (1992) (noting that
when a claim depends on the independent actions of
third parties, standing will be hard to satisfy). Because
there are numerous deficiencies in his argument,
Diekemper’s challenge to his wife’s probation condi-
tion must fail.
B. Recusal
Diekemper also asserts that the district court judge’s
failure to recuse himself for bias violated Diekemper’s
rights to due process and the recusal statute, 28 U.S.C.
§ 455. In the context of § 455, our standard of review
varies based on the claim. In this circuit, review of a
decision denying recusal under § 455(a) must be sought
immediately through a writ of mandamus or it is waived.
United States v. Troxel, 887 F.2d 830, 833 (7th Cir. 1989). As
for claims arising under § 455(b), if a claim is properly
preserved, our review is de novo. United States v. Balistrieri,
779 F.2d 1191, 1203 (7th Cir. 1985). “It is less clear under
our case law whether we may review a refusal to recuse
under section 455(b) when the argument is raised for
the first time on appeal,” but assuming that we can, that
review will be for clear error. United States v. Smith,
210 F.3d 760, 764 (7th Cir. 2000).
8 No. 09-2081
Diekemper failed to raise the issue of recusal before the
district court but nonetheless argues that the district
court judge had a duty to recuse himself sua sponte. As
evidence of the district court judge’s bias toward him,
Diekemper points to statements made both during
Mrs. Diekemper’s sentencing and his own. Because
Diekemper argues for recusal under both § 455(a) and (b),
we will address each in turn.
1. Section 455(a)
Under § 455(a), Diekemper argues that because the
judge’s bias toward him first became apparent during his
wife’s sentencing, he was unable to raise the issue of
recusal at the district court level. Although we have not
had occasion to hold explicitly that a defendant may
make a motion for recusal in the interim between trial
and sentencing, in dicta we have permitted a judicial bias
concern to be raised after trial when the bias did not
become known until the trial’s cessation. United States v.
Ward, 211 F.3d 356, 364 (7th Cir. 2000) (deciding the bias
issue on the merits rather than on waiver grounds,
and therefore implicitly allowing the claim to be raised).
In this case, Mrs. Diekemper’s sentencing was held
more than one month before Diekemper’s. Diekemper
does not argue that he had insufficient time to seek a
recusal, but rather that he thought a recusal motion
was unavailable to him because of no express guidance
on this issue. We think Ward provides at least some
notice of the potential availability of post-trial recusal
motions, but even if it does not, Diekemper has no ex-
No. 09-2081 9
planation for his failure to follow proper § 455(a) proce-
dures. In fact, he concedes that our review is limited
to cases in which mandamus is sought, but instead of
following that procedure, he merely argues that we
should adopt a different procedure.
We hold firm to our position that mandamus must be
sought for a § 455(a) claim of bias to be preserved
properly for appeal. This conclusion follows from the
very nature of § 455(a) claims, which seek to prevent the
appearance of bias and to preserve the public’s faith in
the judicial process. Brokaw v. Mercer County, 235 F.3d
1000, 1025 (7th Cir. 2000); Troxel, 887 F.2d at 833-
34. Section 455(a) provides: “Any justice, judge, or magis-
trate judge of the United States shall disqualify himself
in any proceeding in which his impartiality might rea-
sonably be questioned.” Once the proceedings at issue
are concluded, a post hoc motion for recusal will do
little to remedy any appearance of bias that was present.
Troxel, 887 F.2d at 833; see also Durhan v. Neopolitan, 875
F.2d 91, 97 (7th Cir. 1989). Because Diekemper did not
file a motion for mandamus at the time he became
aware of the alleged bias, any remedy to the appearance
of bias that may have existed has long since evaporated.
Diekemper’s § 455(a) claim fails.
2. Section 455(b)
Diekemper’s § 455(b) claim fails for a different reason.
In claims arising under § 455(b), the mere fact that a
judge forms a negative opinion of a litigant during the
course of a proceeding does not, by itself, constitute bias.
10 No. 09-2081
In re Huntington Commons Assocs., 21 F.3d 157, 158 (7th Cir.
1994) (quoting Litkey v. United States, 510 U.S. 540, 555-56
(1994)). Unless those opinions “ ‘display a deep-seated
favoritism or antagonism that would make fair judg-
ment impossible,’ ” a judge does not run afoul of § 455(b).
Id. Looking at the four statements Diekemper alleges
demonstrate improper bias, we are unable to say that
they express the sort of “deep-seated” favoritism or
antagonism that make fair judgment impossible.
With regard to the statements made at Diekemper’s
sentencing, we think these merely reflect an opinion of
Diekemper that the judge formed during the course of
trial. The statement that Diekemper was not the first
farmer to try to “weasel out of” some honest debts ade-
quately reflects the facts of the case and the district court
judge’s experience. Contrary to Diekemper’s contention,
it does not rise to the level of deep-seated antagonism
found in Berger v. United States, 255 U.S. 22, 28-29 (1921),
where the judge, an American during the World War I
era, railed about German-Americans and their disloyalty
in a case involving defendants of German descent. Al-
though Diekemper tried to analogize Berger to his own
case by alleging that the district court judge was
biased against a “class” of cheating farmers, we think
this comparison misses the mark.
The statement that Diekemper is “manipulative, narcis-
sistic, and twisted,” similarly is a reflection of the facts
before the district court. This statement further served
to explain why the judge imposed the sentence that he
did. And as the government points out, this statement
No. 09-2081 11
is similar to calling a defendant “Madame Cocaine,” a
“kingpin,” or “not a nice person”—all of which are state-
ments we found proper in Troxel, 887 F.2d at 834, and
United States v. White, 582 F.3d 787, 807 (7th Cir. 2009).
And while the statements made at Mrs. Diekemper’s
sentencing give us a bit more pause, they do not reflect
the sort of “antagonism that would make fair judgment
impossible.” The judge first commented that the couple’s
marriage was “unfortunate.” This statement was made
in the context of the district court’s explanation of the no-
contact condition, and viewed in that light, it adequately
serves as the basis for the finding that Mrs. Diekemper
would not have engaged in criminal conduct but for
her husband’s influence. The judge clearly was under
the impression that to rehabilitate Mrs. Diekemper he
had to protect her from her husband’s manipulation,
and this statement is evidence of that belief.
More questionable is the judge’s statement that had
Mrs. Diekemper been raised during the modern era, she
likely would have “shot” Diekemper for urging her to lie
during the proceedings. Although when taken out of
context this statement seems inflammatory, that is not
the case when read in conjunction with the whole tran-
script. The judge was explaining why Mrs. Diekemper
acquiesced in her husband’s suggestion to lie, a state-
ment he credited to what he considered to be the
general subservience of women born to her generation.
In context, this statement reflects the judge’s belief that
Mrs. Diekemper lied because of her upbringing and
inability to escape her husband’s control, rather than
12 No. 09-2081
because of some illicit motivation. This statement
does not run afoul of § 455(b)’s standards.
Because the district court judge was neither biased
for purposes of § 455(a) nor unable to render fair judg-
ment under § 455(b), Diekemper’s appeal on this issue
fails.
C. Sentencing Enhancement
The district court applied a four-level sentencing en-
hancement after determining that Diekemper exercised a
leadership role in the conspiracy. Although Diekemper
conceded that a two-level enhancement was appropriate
because he was an organizer, leader, and manager, he
argued that the facts relied upon as the basis for the
finding that his criminal activity was “otherwise exten-
sive” resulted in double counting. On appeal, he persists
with that argument, but now raises the additional argu-
ments that the court improperly relied on a finding of
five or more participants and that in any event, the evi-
dence was insufficient to support the district court’s
findings on the other factual bases. We review the
district court’s interpretation of the sentencing guide-
lines de novo, United States v. Tai, 41 F.3d 1170, 1174 (7th
Cir. 1994), and its factual finding for clear error,
United States v. Hart, 226 F.3d 602, 604 (7th Cir. 2000).
U.S.S.G. § 3B1.1 provides: “Based on the defendant’s
role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a
criminal activity that involved five or more participants
No. 09-2081 13
or was otherwise extensive, increase by 4 levels . . . .” In
this case, Diekemper concedes that he was an organizer
or leader, but takes issue with the district court’s
findings regarding the latter part of the enhancement.
We see no merit to Diekemper’s arguments.
First, Diekemper claims that the district court erred in
finding that there were five or more participants. This
argument is unworthy of much discussion because the
district court never made such a finding. Instead, the
district court found that the enhancement applied
because the scheme was “otherwise extensive.” And
although in its analysis the court stated, “you have the
number of participants,” the court goes on to say that
the “government doesn’t press the point . . . instead [it]
focuses on the question of whether this is extensive.”
(Appellee’s App. at 16.) In fact, the court made an
express finding in which it explained that its ruling
was based on the otherwise extensive prong. It is obvious
to us that the court was simply using the number of
participants as a factor to support extensiveness rather
than as an ultimate conclusion.
Second, Diekemper claims that the evidence was insuf-
ficient to support a finding of extensiveness because
the court relied on an “insufficient head count” and on
factors which are otherwise accounted for under other
sentencing enhancements. Initially, we note that the
district court did not rely on a headcount to make the
finding of extensiveness. But even if it did, this argu-
ment would fail because § 3B1.1 does not require a mini-
mum headcount to find that a criminal scheme was
otherwise extensive. United States v. Miller, 962 F.2d 739,
14 No. 09-2081
745 (7th Cir. 1992) (citing United States v. DeCicco, 899
F.2d 1531, 1536 (7th Cir. 1990)).
In any event, the district court did not use a headcount
in its finding; rather, it considered various factors in
determining extensiveness; namely, that the scheme took
place over an extended period of time, involved a large
amount of money, was highly orchestrated, and utilized
the assistance of several other people throughout the
conspiracy’s existence. This method of computing ex-
tensiveness is entirely proper, as case law cited in
Diekemper’s own brief illustrates. For example, in
United States v. Don Jin Chen, 497 F.3d 718, 722 (7th Cir.
2007), we opined that “otherwise extensive” activity
existed where the scheme affected many victims, in-
volved a lot of money, and the leader “regularly relied
upon the assistance of both named coconspirators
and various unidentified [persons].” These are almost
identical factors to those utilized by the district court in
this case. Although in Don Jin Chen the court relied on the
number of victims rather than the lengthiness of the
scheme, we see no reason that lengthiness of the con-
spiracy cannot be considered. Additionally, in Miller,
962 F.2d at 745, we found that two participants, four
outsiders, and a fraud involving more than $658,000
was “otherwise extensive.” In Diekemper’s case, there
were three knowing participants, six outsiders, and the
loss involved more than 2.5 million dollars. Surely this
constitutes an extensive scheme.
But Diekemper argues that the use of these factors
is improper because they are accounted for elsewhere in
No. 09-2081 15
the sentencing guidelines. As support for this, he relies
upon an abrogated Second Circuit case, United States v.
Carrozzella, 105 F.3d 796, 805 (2d Cir. 1997), where
that court stated that the amount of loss, extent of plan-
ning, and the number of victims may be accounted
for elsewhere in the guidelines. Importantly, however,
the court also went on to explain that “it is possible that
some factors considered elsewhere in the Guidelines
might still be properly counted towards ‘extensiveness’
in cases where the defendant’s conduct so far exceeds
the contemplation of the otherwise applicable Guide-
line.” Id. at 803.
We start our analysis with the rule itself. Double-count-
ing occurs only if “ ‘precisely the same aspect of a defen-
dant’s conduct factors into his sentence in two separate
ways.’ ” United States v. Gibson, 409 F.3d 325, 340 (6th Cir.
2005) (quoting United States v. Farrow, 198 F.3d 179, 193 (6th
Cir. 1999)). In this case, Diekemper pled guilty to two
conspiracy charges, making false statements, and perjury.
None of these offenses, by their terms, focus on the large-
scale nature of a defendant’s scheme or his manipulation
of unwitting participants. Therefore, because the under-
lying crimes are concerned with different harms than
the enhancement, application of this enhancement did
not result in double counting. And, in any case, “the con-
sensus among all of the other circuits, including our
own, is that double counting is permissible unless the
Guidelines expressly provide otherwise or a compel-
ling basis exists for implying such a prohibition.” United
States v. Harris, 41 F.3d 1121, 1123 (7th Cir. 1994); see
also United States v. Porretta, 116 F.3d 296, 301 (7th Cir.
16 No. 09-2081
1997). Therefore, “[d]ouble counting is permissible if it
accounts for more than one type of harm caused by
the defendant’s conduct, or where each enhancement of
the defendant’s sentence serves a unique purpose under
the guidelines.” United States v. Parker, 136 F.3d 653,
654 (9th Cir. 1998).
But even if we were to examine this set of facts under
the Second Circuit’s approach (which is not binding on
us in any event), Diekemper’s conduct took place over
several years, involved the assistance of many partici-
pants, was carefully orchestrated, and involved
continual fraud upon the system in an effort to hide
2.5 million dollars. We think this conduct certainly
exceeds the “contemplation of the otherwise applicable
Guidelines.” Diekemper’s argument is without merit.
D. Relevant Sentencing Factors
Finally, Diekemper argues that the district court failed
to consider meaningfully the arguments Diekemper
offered in mitigation of his sentence under 18 U.S.C.
§ 3553(a). We review a district court’s application of the
sentencing guidelines de novo, United States v. Warren, 454
F.3d 752, 762 (7th Cir. 2006), but on appeal, a within-
guidelines sentence receives a presumption of reason-
ableness, United States v. Harris, 490 F.3d 589, 596-97
(7th Cir. 2007).
Diekemper argues that the district court failed to con-
sider fully his criminal history, age, and family circum-
stances. Diekemper asserts that his criminal history and
No. 09-2081 17
age make his likelihood of recidivism minimal, and that
the district court itself acknowledged this, yet refused to
apply a below-guidelines sentence. We think the fact
that the district court acknowledged this argument is
dispositive—as long as a sentencing court considers the
arguments made in mitigation, even if implicitly and
imprecisely, the sentence imposed will be found reason-
able. United States v. Poetz, 582 F.3d 835, 839 (7th Cir. 2009).
As for Diekemper’s family circumstances, Diekemper
argues that the tragic loss of his son due to a farming
accident caused Diekemper to attempt to save his farm
at any cost. In support of this argument, he points to
United States v. Schroeder, 536 F.3d 746, 755-56 (7th Cir.
2008), where we found that extraordinary family cir-
cumstances may constitute a valid basis for a below-
guidelines departure. But Schroeder is inapplicable here
because the district court did consider Diekemper’s
argument. It simply chose to reject that argument
because it found that Diekemper’s illegal conduct
was not causally connected to efforts to save the farm. In
fact, the district court found that Diekemper’s bank-
ruptcy fraud was motivated by a gambling addiction,
rather than a more noble effort to save his farm.
Because the court considered Diekemper’s arguments
in mitigation of his sentence, we find the imposed sen-
tence reasonable.
Lastly, Diekemper argues that the court erred when it
did not explain its decision to impose the statutory maxi-
mum for conspiracy to commit mail fraud as opposed
to the statutory maximum for conspiracy to commit
18 No. 09-2081
bankruptcy fraud. Yet Diekemper cites no law in support
of this argument, and it was therefore within the
district court’s discretion to reject it. See United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005); United
States v. Turcotte, 405 F.3d 515, 536 (7th Cir. 2005) (“In
this circuit, unsupported and undeveloped arguments
are waived.”). Diekemper’s § 3553 arguments fail.
III. C ONCLUSION
Because Diekemper’s arguments are meritless, the
decision of the district court is A FFIRMED.
4-28-10