such the defendant cannot challenge the criminal [conviction] at issue under Fed.R.Civ.P. 60(b).”
Mosavi, 138 F.3d at 1366. Accordingly, the defendant’s Rule 60(b) motion is denied.

However, that does not end our discussion of this case. Our review of the case docket has
uncovered what appears to be a petition to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. Apparently, the defendant attached this petition as an exhibit to his reply
memorandum in support of his Rule 60(b) motion. Consequently, the Clerk of the District Court
did not notice it and it was not assigned a civil case number. Now that we have discovered this
problem, we have been in contact with the Clerk’s office and we have decided on the following
procedure to resolve it. Upon receipt of this order, the Clerk of the District Court will remove
the Section 2255 motion that was filed in 98 CR 889 and file it as a new civil case. This civil
case number will have a 02 prefix because it is impossible to go back and assign a 2001 number
to this file. The Clerk is ordered to file stamp the Section 2255 petition as of April 2, 2001, the
date the reply memorandum was filed.

Furthermore, so that we can avoid any further delay in this case, we will set the following
briefing schedule on the Section 2255 petition. The government is to file a responsive pleading
with respect to the petition by January 24, 2003. The defendant is to file a reply by February 21,

2003. We will rule on the petition as quickly as possible once all the bricfs have been received.



DISCUSSION

In his Rule 60(b) motion, the defendant argues that his conviction at trial should be
reversed because his trial attorney entered into an unauthorized stipulation with respect to a
jurisdictional element of the crime of bank robbery, Specifically, he contends that his counsel
incorrectly agreed to stipulate that the CIB Bank was insured by the Federal Deposit Insurance
Corporation (“FDIC”) as of December 2, 1998. He has since become convinced that the CIB
Bank in fact was not insured by FDIC on the date of the bank robbery and, thus, his conviction
for that offense was improper.

Rule 60(b) states that “[o]n motion and upon such terms as are just, the court may relieve
a party... from a final judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect . . . or (6) any other reason justifying relief from the
operation of the judgment.” Fed.R.Civ.P. 60(b). In this case, Paschal is attempting to challenge
his criminal conviction by means of Rule 60(b). However, it is well-settled that a defendant
cannot challenge a criminal conviction under the Federal Rules of Civil Procedure. See United
States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998); United States v. Ramsey, 106 F.3d 404,
1997 WL 14152, at *1 (7th Cir. Jan. 9, 1997) (unpublished opinion); United States v. Erinle, 53
F.3d 334, 1995 WL 258106, at *2 (7th Cir. 1995) (unpublished opinion). Rule 1 of the Federal
Rules of Civil Procedure states that “[t]hese rules govern the procedure in the United States
district courts in all suits of a civil nature.” Fed.R.Civ.P. 1 (emphasis added). The judgment that
the defendant contests was entered, not in a civil case, but in a criminal case, and a proper appeal
of his conviction should be raised directly to the Seventh Circuit and not to this Court in this

fashion. “Rule 60(b) simply does not provide for relief from judgment in a criminal case, and as


CONCLUSION
For the foregoing reasons, the defendant’s motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b) is denied. The Clerk of the District Court is ordered to
open a new civil case file for the defendant’s Section 2255 petition. The government is to file a
response to the petition by January 24, 2003. Mr. Paschal is to file his reply by February 21,

2003.

It is so ordered.

ade. CA.

Wayne R. Andersen
United States District Judge

Dated: dy Chinhoer JF, MOR



Mimute Onter Form (06/97) aa -—m

United States District Court, Northern District of Illinois

Name of Assigned Judge Wayne R. Andersen Sitting Judge if Other
or Magistrate Judge 7 than Assigned Judge

CASE NUMBER 98 CR 889 - 2 DATE 12/3/2002

CASE tates of America vs. Leo Paschal
met QO2ZC 874

[In the following box (a) indicate the part
of the motion being presented.|

the motion, c.g., plaintiff, defendant, 3rd party plaintiff. and (b) stat
MOTION:

c briefly the nature

DOCKET ENTRY:

(1) im} Filed motion of [ use listing in “Motion” box above.]

(2) 6 Brief in support of motion due

(3) im} Answer brief to motion due___. Reply to answer brief due__

(4) oO Ruling/Hearing on set for at

(5) 0 Status hearing(held/continued to] [sct for/re-sct for] on ___set for

(6) i] Pretrial conference{held/continued to] [set for/re-set for]on___—setfor_— at.
(7) ia Trial[set for/re-set for}on_ at

(8) a (Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QFRCP4(m) © Local Rule 41.1 OO FRCP41(a)(1) CO FRCP41(a)(2).

do) [Other docket entry] Enter MEMORANDUM, OPINION AND ORDER: The defendant’s
motion for relief from judgment pursuant to Federal Rules of Civil Procedure 60(b) is denied. The
Clerk of the District Court is ordered to remove the Section 2255 motion that was filed in 98 CR
889 and file it as a new civil case. The government is to file a response to the petition by 1/24/2003.

Mr. Paschal is to file his reply by 2/21/2003.

dl) ff [For further detail see order attached to the original minute order. ]

7 | Docketing to mail notices.

Mail AO 450 form.

docketing deputy ithials

Copy to judge/magistrate judge.

No notives required, advised in open court Document
Number
No notices required. umber of notices
Noyices mailed by judge's stat? DEC 0-4 2002
olified counsel by telephone. ‘have docketed

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA )
; O2ZC 8745
Plaintiff, )
y No. 98 CR 889-2
v. )
) Wayne R. Andersen
LEO PASCHAL, ) District Judge HOCKETED
Defendant. DEC 04 2002

MEMORANDUM OPINION AND ORDER

This case is before the Court on the defendant’s motion for relief from judgment pursuant
to Federal Rule of Civil Procedure 60(b). For the following reasons, the Rule 60(b) motion is
denied.

BACKGROUND

On December 2, 1998, the defendant, Leo Paschal, and his brother, Mottio Paschal, were
arrested by officers of the Niles Police Department following an alleged bank robbery and
subsequent vehicular pursuit. On December 3, 1998, a one-count criminal complaint was filed in
this Court charging the defendant and Mottio Paschal with bank robbery in violation of 18 U.S.C.
§ 2113(a). On February 11, 1999, a one-count indictment was filed. On February 19, 1999, the
defendant was arraigned before Magistrate Judge Arlander Keys and he entered a plea of not
guilty to the charges presented in the indictment.

At trial, evidence established that the defendant drove his brother Mottio to the CIB Bank
located in Niles, Illinois. Mottio Paschal entered the bank and advised the tellers that he wished

to open a checking account. One of the teller’s responded by saying that the defendant would


need to consult with a personal banker. Shortly thereafter, Mottio informed the teller that, in
fact, he had an account with CIB Bank and that he wished to cash a check. Another teller was
asked to process this transaction.

As the teller began the process of cashing the check, Mottio reached into his pocket and
produced a paper bag which had been written on. The bag read, “This is a stick up all 100s 50s
20s No funny money No tricks or I’Il blow your head off.” The bag was laid on the counter top,
its opened top end facing the defendant. The teller put all of the money from her drawer on top
of the counter while the defendant made comments such as, “hurry up,” “I gotta go,” “don’t tell
anybody,” and “don’t head off.” The defendant placed the money into the bag and left the bank.

While this was ongoing, another teller witnessed what was happening and she activated
an alarm. The bank administrator concluded that a robbery was taking place and she followed
Mottio out of the bank. She saw Mottio enter an older style Cadillac, driven by the defendant,
which left the parking lot. The bank administrator returned to the bank and called the Niles
Police Department, which dispatched multiple marked squad cars to investigate. Detective Jim
Elanz also responded to the scene. He spotted the Cadillac and directed the marked units to
effect a traffic stop on the vehicle. The defendant did not yield and he led the Niles police ona
traffic pursuit. During the pursuit, the defendant struck two police vehicles which had been used
to block the Cadillac’s progress.

At the conclusion of the testimony, the jury returned a verdict of guilty on Count One of
the indictment. On March 9, 2000, Paschal was sentenced to 120 months imprisonment. On
December 26, 2000, the defendant filed the instant motion for relief from this conviction

pursuant to Federal Rule of Civil Procedure 60(b). The motion is now fully briefed.