Case 3:08-cr-30139-GPM-CJP Document 41 Filed 10/20/08 Page 1 of 7 Page ID #136 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS UNITED STATES OF AMERICA, Plaintiff, vs. CRIMINAL NO. 08-30139-GPM-CJP JOSEPH DIEKEMPER, Defendant. UNITED STATES OF AMERICA S OPPOSITION TO DEFENSE MOTION TO REVOKE DETENTION ORDER Comes now the United States of America, by and through its attorneys, and respectfully opposes the defendant s motion to revoke the order of detention. The defendant cites authority for the proposition that it is appropriate to hold a hearing to present additional or newly acquired evidence relevant to detention. Accordingly, the United States uses the opportunity of the defendant s motion and the scheduled hearing to supplement the record regarding the defendant s risk to the community and present additional evidence regarding the defendant s fraud upon the Court, such evidence having been developed subsequent to the last detention hearing. Joseph Diekemper has duped his attorneys in an attempt to perpetrate fraud upon the court. On June 26, 2008, the defendant was arraigned and, while under oath, stated that he had given his firearms to his son. This statement was false, as was determined during a July 3, 2008 hearing on the government s motion to revoke bond. Evidence was presented that Joseph Diekemper had, in fact, received firearms from his son in January of 2008, and was still in possession of the firearms as of the date of the arraignment. During this bond revocation hearing, the defendant s then-attorney, Mr. Schultz, informed the court that he had spoken to the defendant about this matter and then proceeded by way of proffer. During the attorney s proffer, the defendant was seated at counsel table
Case 3:08-cr-30139-GPM-CJP Document 41 Filed 10/20/08 Page 2 of 7 Page ID #137 and able to hear what his attorney said to the court. Mr. Schultz stated that the defendant had mistakenly believed that he had no firearms but that when he went into his garage to retrieve a pellet gun, he discovered that he still had two rifles. Mr. Schultz proceeded to inform the court that the defendant then promptly took the pellet gun and two rifles to the home of Mark Guenzberger (spelled phonetically in the transcript as Gunsenberger, that Mr. Guenzberger has a valid FOID, and that Mr. Guenzberger agreed to hold the firearms for the defendant. This story about Guenzberger that was related by Mr. Schultz in court is also the story that the defendant has allowed his current attorney to adopt in the pending motion. This story, like the story regarding the transfer of weapons to his son, is also false. After Magistrate Judge Proud revoked the defendant s bond, agents located a Mark Guenzberger to interview him and to obtain the weapons for potential forensic analysis in a murder 1 investigation. (See Attachment A, record of telephone conversation with Weedon. Guenzberger told the agents that the defendant, on Friday, June 27, 2008, without prior arrangement or explanation, had parked his car on Guenzberger s property. The defendant left the vehicle there with the doors locked, and Guenzberger could see an Army blanket covering something in the back seat. 1. References to law enforcement s interest in the weapons have been quite cryptic up to now, both due to concerns about prejudice to the defendant and sensitivity to an ongoing murder investigation. But given the defendant s odd behavior, and in the interest of full disclosure to the Court, the government submits additional information to provide greater context regarding these weapons, and trusts the Court will assign what, if any, weight to this information. George Weedon was a witness in this case who had hidden a tractor for Diekemper in a shed behind a false wall. Weedon had agreed to cooperate with the FBI and had scheduled an appointment to speak with an FBI agent, but expressed fear that Joseph Diekemper might burn his house down. Before the scheduled appointment, George and his wife Linda were murdered by gunshot and his house was burned down. No arrests have been made. These facts contribute to law enforcement s interest in the firearms being concealed by Diekemper. 2
Case 3:08-cr-30139-GPM-CJP Document 41 Filed 10/20/08 Page 3 of 7 Page ID #138 On Sunday, June 29, 2008, the defendant called Guenzberger. Guenzberger told the defendant to remove the vehicle from his property. The defendant and his wife, Margaret Diekemper, arrived in a green sport utility vehicle, and the defendant told Guenzberger that he should not have parked the car there and offered money to Guenzberger. Guenzberger refused and told Diekemper to leave. Diekemper drove the vehicle away. Guenzberger told agents that he had never held any firearms for the defendant. (See Attachment B, interview of Guenzberger. The government is in negotiations with Margaret Diekemper regarding a cooperating plea agreement, and Margaret has agreed to be available to testify today, if necessary. While Guenzberger does not know what items were in the vehicle, and was told by Joseph Diekemper that the items were tools, Margaret Diekemper knows otherwise. If Margaret Diekemper were to testify, she would confirm that the items in the vehicle were, in fact, firearms. Mr. Diekemper clearly has something to hide with respect to these firearms, and Magistrate Judge Proud was incredulous that Diekemper, knowing that these weapons were such a hot topic would be unaware that these weapons were in his garage. (Doc. 21, transcript of bond revocation hearing, p. 15, lines 17-20. Diekemper has misled the Court about these weapons, directly and through his attorneys, on three occasions. This should be viewed against the backdrop of the Bankruptcy Court s findings that Joseph Diekemper lied in the civil proceedings that underlie the criminal charges. The defense faults Agent Meyer for being forced to acknowledge on cross-examination that he did not know where those weapons were then currently located. (Doc. 39-1, Defense Motion to Revoke Detention Order, p. 4. Given Diekemper s series of lies and odd, obstructive behavior with respect to these weapons, the unavailability of the weapons is entirely the fault of the 3
Case 3:08-cr-30139-GPM-CJP Document 41 Filed 10/20/08 Page 4 of 7 Page ID #139 defendant. That the defendant would go to such lengths and assume such risk of additional charges simply to conceal these weapons is evidence of his danger to the community. Further, his utter disregard for truthfulness and lack of respect for the Court and its orders indicates that he is extremely unlikely to abide by the orders of this court if placed on bond. The defense is clearly operating at a disadvantage in that its facts are derived from the client, Mr. Diekemper. But the law is also squarely against the defendant. The primary legal arguments advanced by the defense are claims that the Magistrate failed to consider the 18 U.S.C. 3142(g factors, and that this case does not create a presumption of detention because the violation of bond did not entail the commission of a new criminal offense. Both claims are wrong. The magistrate clearly notes in his order that he considered the 3142(g factors and that the defendant did make a false statement to me. (See Doc. 21 pp. 2-3, and Doc. 39, transcript of bond revocation hearing, p. 15, line 22. The defendant committed a violation of Title 18, United States Code, 1001 when he told the Court that he did not have any firearms. The Magistrate also noted other potential violations, such as Contempt, and the lie to the Probation Officer (an obvious reference to 1001. (See Doc. 39, transcript of bond revocation hearing, p. 16, lines 1-4. Counsel would contest that the defendant was confused, which is weak but valid, potential defense. However, the defendant committed additional violations of 1001, using his attorneys as innocent intermediaries. See, United States th v. Motley, 940 F.2d 1079, 1082 (7 Cir. 1991 (finding that one may be guilty as a principal, by application of Title 18 U.S.C. 2(b, if one willfully causes an innocent person to perform the act that completes the crime. Attorney Schultz unknowingly proffered false information to the court during the bond revocation hearing regarding the transfer of firearms to Guenzberger. (Doc. 38, 4
Case 3:08-cr-30139-GPM-CJP Document 41 Filed 10/20/08 Page 5 of 7 Page ID #140 transcript of bond revocation hearing, pp. 8, lines 19-25 continue p. 9 line 1, and p. 13, lines 24-25. The defendant violated 1001 yet again by virtue of Attorney Sison unknowingly repeating this false information to this Court in the most recent pleading when he states that the firearms were transferred to Guenzberger. (Doc. 39-1, pp. 4, 12. The 3148(b presumption that no condition or combination of conditions will assure that the person will not pose a danger to another person or the community existed when Magistrate Judge Proud and the government were only aware of the one false statement regarding the alleged transfer of the weapons to the defendant s son. This is a presumption that the defendant has not rebutted and cannot rebut, especially in light of the additional criminal violations and fraud upon the court. But even if no presumption were applied, none of the 3142(g factors cited by the defense address the fact that joint success of the probation office and person being supervised requires the cooperation and truthfulness of the person being supervised. In this case, the defendant lied to Officer Howard, lied to the Court at arraignment, furthered the lie at the bond revocation hearing, and again in the most recent pleading. Further, the defendant s behavior from the evening of his arraignment until his detention, with respect to Guenzberger, is properly called obstructive and bizarre. The defendant is a danger if placed in public with no more than the orders from this Court to regulate his conduct when he has displayed contempt for both the Court and its orders. The defense also takes issue with the government not presenting evidence regarding the strength of its case against the defendant. But Congress never intended that detention hearings rd resemble mini-trials. United States v. Delker, 757 F.2d 1390, 1996 (3 Cir. 1985. A Grand Jury heard evidence in this case and then returned an Indictment that, rather than merely listing naked charges, provides a narrative that outlines a powerful case against the defendant. These charges 5
Case 3:08-cr-30139-GPM-CJP Document 41 Filed 10/20/08 Page 6 of 7 Page ID #141 include obstruction of justice and the bribery of a witness and co-conspirator. The Bankruptcy Court, in proceedings that underlie the criminal charges, specifically found Diekemper to be unbelievable. Further, the government has reached an agreement-in-principle with the unindicted co-conspirator who was bribed by the defendant, and with the defendant s wife, to enter guilty pleas that involve cooperation. If the defense desires a finding as to the strength of the case, the Court should find that the government s case is very strong. Magistrate Judge Proud specifically noted his consideration of the 3142(g factors and based his order of detention on both the violation of the bond condition and the false statement, which is a new criminal offense. This invokes a presumption of detention that has not been rebutted. Further, even if there were no presumption, no condition or combination of conditions could possibly assure that the defendant would pose no danger to any other person or the community. The defendant s motion to revoke the Detention Order should be denied. Respectfully submitted, A. COURTNEY COX United States Attorney s/kevin F. Burke KEVIN F. BURKE Assistant United States Attorney Nine Executive Drive Fairview Heights, IL 62208 (618 628-3700 Fax: (618 628-3720 6
Case 3:08-cr-30139-GPM-CJP Document 41 Filed 10/20/08 Page 7 of 7 Page ID #142 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS UNITED STATES OF AMERICA, Plaintiff, vs. JOSEPH DIEKEMPER and, Defendant. CRIMINAL NO. 08-30139-GPM-CJP Certific ate of Servic e I hereby certify that on October 20, 2008, I electronically filed Government s Opposition to Defense Motion to Revoke Detention Order with the Clerk of Court using the CM/ECF system which will send notification of such filing(s to the following: Todd M. Schultz Gilbert G. Sison Christopher P. Threlkeld todd_schultz@fd.org gsison@rsrglaw.com cthrelkeld@lbtdlaw.com and I hereby certify that on October 20, 2008, I mailed by United States Postal Service, the document(s to the following non-registered participants: None Respectfully submitted, A. COURTNEY COX United States Attorney s/kevin F. Burke KEVIN F. BURKE Assistant United States Attorney Nine Executive Drive Fairview Heights, IL 62208 (618 628-3700 Fax: (618 628-3720