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United States v. Dyer

United States District Court, E.D. Wisconsin

October 2, 2019

TODD A. DYER, Defendant.



         On September 11, 2019, the government filed a complaint, alleging that the defendant has harassed and continues harass the victims in his underlying federal criminal cases, No. 15-cr-115-JPS and No. 16-cr-100-pp, including Mark Borst, Blakely Construction, Cindy Blakely and Borst and Blakely's immediate family members. Dkt. No. 1 at ¶2. The government also filed a motion for temporary restraining order and protective order under 18 U.S.C. §1514. Dkt. No. 2. Because §1514(a)(2)(A) does not require notice and the court finds a reasonable probability that the government will prevail on the merits based on the attachments to the verified complaint, the court will grant the motion for temporary restraining order and schedule a hearing as required by the statute.

         I. Application for Temporary Restraining Order and Motion for Protective Order (Dkt. No. 2)

         A. Application for Temporary Restraining Order

         Under 18 U.S.C. §1514, also known as the Victim and Witness Protection Act (VWPA), the government may apply for a temporary restraining order or a protective order “prohibiting harassment of a victim or witness in a Federal criminal case.” 18 U.S.C. §1514; United States v. Lewis, 411 F.3d 838, 843 (7th Cir. 2005). The court must find, based on an affidavit or verified complaint, that there are reasonable grounds to believe that harassment of an identified victim or witness exists. 18 U.S.C. §1514(a)(1). The statute defines the term “harassment” as “a serious act or course of conduct directed at a specific person that-(i) causes substantial emotional distress in such person; and (ii) serves no legitimate purpose.” §1514(d)(1)(B)(i)-(ii). The term “course of conduct” means “a series of acts over a period of time, however short, indicating a continuity of purpose.” §1514(d)(1)(A).

         A court may issue a temporary restraining order without oral or written notice to the defendant if the court finds, on written certification of the facts by the government, that notice should not be required and that there is a reasonable probability that the government will prevail on the merits. 18 U.S.C. §1514(a)(2)(A). Any restraining order without notice must include the date and hour that the court issues it, 18 U.S.C. §1514(a)(2)(B), and it shall expire no later than fourteen days from the date of issuance, 18 U.S.C. §1514(a)(2)(C). The order itself must contain, in specific terms and reasonable detail, the acts to be restrained. 18 U.S.C. §1514(a)(2)(F).

         In connection with the application for restraining order, the government cites 18 U.S.C. §3771, which identifies the rights of crime victims. The statute includes the right to be reasonably protected from the accused, and the right to be treated with fairness and with respect for the victim's dignity and privacy. 18 U.S.C. §§3771(a)(1) and (8). The crime victim and the attorney for the government may assert the rights described in §3771. 18 U.S.C. §3771(d)(1).

         B. Motion for Protective Order

         The government also asks for a protective order. Section 1514(a)(2)(D) states that when the court issues a temporary restraining order without notice, “the motion for a protective order shall be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character . . . .” Section §1514(b)(1) requires the court to issue a protective order “prohibiting harassment of a victim or witness in a Federal criminal case or investigation if the court, after a hearing, finds by a preponderance of the evidence that harassment of an identified victim or witness in a Federal criminal case exists . . . .” At the hearing on the protective order, the defendant has the right to present evidence and cross-examine witnesses. 18 U.S.C. §1514(b)(3). If the court enters a protective order, it has the discretion to set the appropriate duration necessary to prevent harassment, for up to three years from the date it issues the order. 18 U.S.C. §1514(b)(5). The penalty for violating an order issued under §1514 is a fine, imprisonment of no more than five years, or both. 18 U.S.C. §1514(c).

         C. Analysis

         1. The background of the defendant's federal convictions.

         The defendant is serving fifteen years following his guilty pleas in two complex fraud schemes involving the Borst and Bakley families. United States v. Dyer, Nos. 15-cr-115-JPS and 16-cr-100-pp.

         a. The case before Judge Stadtmueller

         In the first scheme, the defendant and others solicited investments in the defendant's companies to purchase farm land; he never purchased any farms or farm land. United States v. Dyer, No. 15-cr-115, Dkt. No. 198. The defendant went to trial before a jury. Id., Dkt. No. 201. The trial began on December 5, 2016, with the defendant representing himself.[1] Id. The trial proceeded all day December 5 and 6. Id. at 1-18. On the morning of the third day of trial, however, the prosecution reported that the defendant had indicated (through standby counsel) that he wished to enter guilty pleas in the cases before Judge Stadmueller and this court, and that the government likely would dismiss a third case pending before Judge Adelman. Id. at 18-19. Judge Stadtmueller took a recess at 9:06 a.m. to let the parties work through this new development; he resumed the record at 2:00 p.m., by which time the defendant had appeared before Magistrate Judge Jones and entered a guilty plea. Judge Stadtmueller then discharged the jury and scheduled sentencing for March 1, 2017. Id. at 19. The sentencing hearing was adjourned to March 8, 2017. Id., Dkt. No. 212. On March 7, 2017-the day before the sentencing hearing-the defendant filed a motion to withdraw his guilty plea. Id., Dkt. No. 221. He alleged that the government had made false statements to the jury during trial and had presented perjured testimony. Id. at 2. He stated that the court and the prosecutors had “frustrated” him into pleading guilty, and that he pled guilty “temporarily in order to obtain sufficient time to prepare a defense that proved witnesses were committing perjury and robbing” him of his right to a fair trial. Id. at 3.[2] He also argued that the court had made comments showing that it had prejudged Dyer and was prejudiced toward him. Id. at 5- 13. At the March 8, 2017 sentencing, Judge Stadtmueller found that the motion to withdraw the guilty plea was “without merit.” Id., Dkt. No. 229 at 1. Judge Stadtmueller sentenced the defendant to serve 180 months in prison and ordered him to pay $1, 802, 483 in restitution to the victims (including $453, 417 to Mark Borst). Id., Dkt. No. 231 at 5.

         b. The case before Judge Pepper

         In the second scheme, the defendant convinced Joan Bakley and her family that the insurance agent who had written Bakley's life insurance policy had made himself the beneficiary of the policy-a fact which Dyer knew was not true. United States v. Dyer, No. 16-cr-100, Dkt. No. 30 at 16. As the Bakley's “consultant, ” he had them sign consulting agreements, took $937, 000 from their family and used it for his own purposes. Id. The defendant signed a plea agreement on December 7, 2016-the third day of the aborted trial before Judge Stadtmueller.[3] Id. at 15. This court scheduled a sentencing hearing for March 7, 2017. Id., Dkt. No. 31. The sentencing was adjourned to March 23, 2017. That day, the court received a letter from the defendant, claiming that he had pled guilty in this case because he had not received a fair trial in the case before Judge Stadtmueller. Id., Dkt. No. 43 at 2.[4] He asserted that the judge had said prejudicial things before the jury, that the prosecutors had presented perjured testimony to the jury and that he also was seeking to withdraw his guilty plea in the case before Judge Stadtmueller. Id. at 2-3. This court orally denied the defendant's motion to withdraw his guilty plea during the March 23, 2017 sentencing hearing. Id., Dkt. No. 47 at 1-2. This court sentenced the defendant to serve 110 months imprisonment (concurrent with the term imposed by Judge Stadtmueller), along with three years of supervised release and ordered the defendant to pay $937, 000 in restitution to Bakley Construction. Id., Dkt. No. 48 at 4.

         c. The appeal of both cases

         The Seventh Circuit Court of Appeals affirmed the convictions in United States v. Dyer, 892 F.3d 910 (7th Cir. 2018).

         2. The evidence of harassment.

         a. The Backleys

         The attachments to the verified complaint in this case begin with a November 27, 2017 letter to Cindy Bakley. In that letter, the defendant threatens to file a complaint for breach of contract against Bakley because she disclosed their “advisory/consulting” agreement to her “attorney, the FBI, the IRS, and the U.S. Attorneys Office.” Dkt. No. 1-7 at 1. The defendant reminds Bakley that he had “strongly” suggested she not talk to the FBI. Id. He warns there will be another “indictment, ” says that Bakley has exposed her family to liability and threatens perjury charges if she denies the allegations in the new indictment when deposed by his father's attorney. Id. at 2.

         The defendant sent Cindy Bakley a second letter on January 3, 2018, titled “Breach and Violation of Non-Disclosure Agreement and Demand of Payment.” Dkt. No. 1-8 at 1. That letter states that the Bakley family breached their non-disclosure agreement with the defendant by showing the agreement to the FBI. Id.

         On September 12, 2018, the defendant filed a lawsuit in McHenry County, Illinois against Cindy Bakley and her family based on the alleged breach of the consulting agreement. Dkt. No. 1-11; see Dyer v. Bakley, et al., No. 18LA315 (McHenry County Circuit Court, Judge Costello presiding), accessible at (last visited September 17, 2019). The defendant sought judgment in the amount of $500, 000. Id. at 4.

         On October 3, 2018, the defendant sent a fax addressed to Joan, Cindy, Kathleen and Ken Bakley, saying that he “filed a judgment for $500, 000” for the family's breach of the advisory/consulting agreement. Dkt. No. 1-9 at 1. He said that he would go to the local police and the FBI, and that he would ask for the judge who heard the Bakleys' case against his father to hear the lawsuit he had filed against them. Id. The defendant also said that he “feel[s] the need to point out the risks should [the Bakley's] decide not to seek a settlement outside the purview of the Court.” Id. He asserted that the judge would view the Bakleys' allegations against him as “outrageous, perhaps criminal, ” and warns that if the Bakleys proceeded with their version of the facts, they would open themselves up “to extreme liability from my dad and Attorney Hanlon for a civil suit if you have not already settled with him.” Id.

         On December 31, 2018, the defendant filed a second lawsuit in McHenry County against Joan Bakley, the Joan Bakley Trust, Cindy Jo Bakley, Kenneth Bakley, Jr., Kathleen Jensen and the Bakley Construction company, alleging that they committed fraud by making “repeated, changing, false statements to the FBI and the U.S. Attorney's Office in Wisconsin.” Dkt. No. 1-12 at 4; see Dyer v. Bakley, et al., No. 18LA436 (McHenry County Circuit Court, Judge Costello presiding), accessible at (last visited September 17, 2019). He accused the Bakleys of recording telephone conversations in violation of Illinois “Wiretapping and Eavesdropping Laws.”[5] Id. at 5. In that case, the defendant sought “actual” damages of not less than $800, 000 and punitive damages in the amount of $2, 400, 000. Id. at 14.

         In a letter to the Bakleys' attorney dated May 24, 2019, the defendant stated his belief that the lawsuits he'd filed against the Bakley family subjected them to “significant civil and potential criminal liability.” Dkt. No. 1-10 at 1. He demanded that the Bakleys loan his company $1, 000, 000 on a sixty-month note at 1% over prime with principal and interest due at maturity, that they give him a sworn statement disclosing who they had given the telephone recordings and when, and give him a sworn affidavit “disclosing whether or not you were contacted by my father and/or Attorney Hanlon and/or if the Bakleys settled with my father since my incarceration.” Id. at 1-2. The defendant represented that, in exchange, he would dismiss with prejudice the two cases he'd filed against the Bakleys, indemnify them against future litigation, agree “not to participate in any civil or criminal proceedings to the best of [his] ability within the confines of legal behavior, ” and “work with you and/or the Backleys to counter any attempts by my father and his counsel to bring suit against the Bakleys with evidence not in his or your clients possession.” Id. at 2. The defendant also stated that if the Bakleys had not settled with his father, he would settle with his father out of the loan proceeds from the Bakleys on their behalf, and that his company would sign a second note that would “allow the Bakley family to recover the consulting fees paid to me in connection with the May 1, 2015 Consulting Agreement in the event [his] settlement with publicly traded Farmland Partners . . . surpassed a certain benchmark level minus [his] tax obligation on that income, ” stating that by his estimate, “[t]he second note will be for approximately $600, 000.” Id. He concluded this letter by asking counsel to contact him if the terms were acceptable, and asking counsel to give his condolences to the Bakleys “regarding their mother's passing.” Id.

         On June 25, 2019, the McHenry County Circuit Court dismissed No. 18LA315, with prejudice. Dyer v. Joan Bakley Trust, et al., No. 18LA315 (McHenry County Circuit Court, Judge Costello presiding), (last visited September 17, 2019). The government states in its brief that ...

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