JAMES R. SKRZYPEK and JANICE M. SKRZYPEK v. United States of America

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 29, 2011 *
Decided June 29, 2011
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
Nos. 10‐2804 & 10‐2805
JAMES R. SKRZYPEK and JANICE M.
SKRZYPEK,
Petitioners‐Appellants,
v.
UNITED STATES OF AMERICA
Respondent‐Appellee.
Appeals from the United States District
Court for the Northern District of Illinois,
Eastern Division.
Nos. 1:07‐cv‐05753 & 1:07‐cv‐05754
Wayne R. Andersen,
Judge.
O R D E R
James and Janice Skrzypek cheated the Chicago Housing Authority, the Internal
Revenue Service, and several insurance companies out of millions of dollars. They were
convicted of multiple crimes, including racketeering, 18 U.S.C. § 1962(c), mail and wire
fraud, id. §§ 1341, 1343, bribing public officials, id. § 201(b), obstruction of justice,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, these appeals are submitted on the briefs and the record. See FED. R. A PP.
P. 34(a)(2)(c).

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Nos. 10‐2804 & 10‐2805 Page 2
id. § 1503(a), and failure to remit withholding tax, 26 U.S.C. § 7202. Both defendants were
sentenced to 90 months’ imprisonment and ordered to jointly pay almost $3.5 million in
restitution. After unsuccessful direct appeals, United States v. Skrzypek, 333 F. App’x 117 (7th
Cir. 2009); United States v. Skrzypek, 219 F. App’x 577 (7th Cir. 2007), the Skrzypeks moved
under 28 U.S.C. § 2255 to set aside their convictions on the ground that trial counsel had
been ineffective in not seeking to suppress documents found in their garage during an
allegedly illegal search. The district court denied their motions, and the Skrzypeks appeal.
We affirm the decision.
The Skrzypeks owned several private security companies, including Federal
Security, Inc. The CHA hired Federal Security to guard some of its housing projects.
Although the company did not have enough guards to do the job, the Skrzypeks led CHA
managers to believe that all posts were staffed and billed for these phantom employees.
They also exaggerated the number of hours logged by the few guards who did work. And
to cover their tracks, the Skrzypeks falsified their business records and bribed CHA
employees to look the other way. Meanwhile, the Skrzypeks also pocketed taxes withheld
from Federal Security employees and, in dealing with insurance carriers, understated the
size of the workforce to reduce their payroll‐based premiums for workers’ compensation
and liability policies.
On the day the Skrzypeks were indicted, a federal agent executed a warrant to search
for and seize a sports car bought with proceeds of their crimes. The FBI expected to find the
car in the garage behind the Skrzypeks’ home, which is also located next to the office for
their security companies. The agent obtained keys to the garage from Janice, and at trial he
testified that the car was immediately apparent when he entered the structure but so were
boxes of documents on the floor near the open, pull‐down stairs leading to the garage attic.
The agent added that he conducted a protective sweep by climbing about four steps “to see
what was there or if anyone was there.” What he saw were lots of banker’s boxes like those
discovered during earlier searches of the Skrzypeks’ company offices. According to the
agent, these boxes were labeled with notations such as “CHA Contract,” “Telephone Bills
Federal,” “Dispatcher Logs,” and “All Payroll Books.” He descended the stairs without
touching the boxes, and the FBI then obtained another search warrant specifically for the
documents in the garage. These documents underlie the Skrzypeks’ convictions for
obstruction of justice because they concealed the records after receiving a Grand Jury
subpoena.
When questioned at trial about the protective sweep, the FBI agent testified that such
action is taken “as a matter of practice” when executing arrest or search warrants “to make
sure no one is there.” The “primary reason” for a protective sweep, the agent explained, is
to avoid being surprised by someone who is present. He was part of the team, he continued,

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Nos. 10‐2804 & 10‐2805 Page 3
that had searched the business office next to the garage, and he knew from that experience
that armed employees often were present.
In their § 2255 motions, the Skrzypeks primarily argued that their trial attorneys
were ineffective because they never moved to suppress the records found in the garage attic.
They insisted that the FBI agent was not justified in conducting a protective sweep of the
garage because, they said, he simply followed routine and did not have a reasonable belief
that a dangerous person might be in the attic. Counsel’s failure to move for suppression
prejudiced them, the Skrzypeks assert, because the hidden records led to their convictions
for obstruction of justice and—so they say—the government all but conceded that it would
have had difficulty proving any part of its case without those documents.
In denying the Skrzypeks’ collateral challenge, the district court deemed it
particularly significant that the pull‐down stairs had been lowered, suggesting that
someone recently had gone up into the attic. That inference, combined with the agent’s
awareness that armed security guards were in the area, the court reasoned, was sufficient to
justify the decision to do a cursory check of the attic to make sure no one would harm him
during the search and seizure of the vehicle. The court also noted that defense counsel likely
chose not to file a motion to suppress because they instead pursued a strategy of fighting
the obstruction charge by attempting to show that the seized records duplicated
information already in the government’s possession. Given the government’s overwhelming
evidence against the Skrzypeks, the court concluded, even if the attic records had been
excluded, there was plenty of other evidence to support the Skrzypeks’ convictions,
including CHA billing records, the security company’s computerized records, and the
testimony of Federal Security employees. In reviewing this decision, we evaluate questions
of law de novo and findings of fact for clear error. Hutchings v. United States, 618 F.3d 693,
696 (7th Cir. 2010).
To prevail on a claim of ineffective assistance, the movant must establish both
deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Pole
v. Randolph, 570 F.3d 922, 934 (7th Cir.), cert. denied, 180 S. Ct. 562 (2009). If a movant’s
showing on either element is wanting, we do not have to address the other element.
Strickland, 466 U.S. at 697; Pole, 570 F.3d at 934. And since any number of defense strategies
may be reasonable in a given case, we give great deference to counsel’s choice and evaluate
the reasonableness of counsel’s performance in the context of the case as a whole. Strickland,
466 U.S. at 688. Moreover, because in this instance the Skrzypeks criticize a choice to forgo a
motion to suppress, they were required to show that a Fourth Amendment claim would
have been meritorious and “that there is a reasonable probability that the verdict would
have been different absent the excludable evidence.” Kimmelman v. Morrison, 477 U.S. 365,

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Nos. 10‐2804 & 10‐2805 Page 4
375 (1986); see United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). As the district
judge surmised, the Skrzypeks made neither showing.
A protective sweep is justified when an agent reasonably believes, based on specific,
articulable facts and the rational inferences arising from those facts, that someone who
could pose a danger might be present. Maryland v. Buie, 494 U.S. 325, 327 (1990). If such a
belief exists, then, in the interest of safety, the agent can conduct a brief, limited search of
places where a person could be hiding. Id.; United States v. Tapia, 610 F.3d 505, 510 (7th Cir.
2010); Leaf v. Shelnutt, 400 F.3d 1070, 1087‐88 (7th Cir. 2005). Here, we agree with the district
court that the agent reasonably believed that a person might be lurking in the garage attic
because the stairs had been pulled down and there were document boxes on the garage
floor suggesting that someone was in the process of moving them. The agent also was aware
that the garage was within a few feet of the Skrzypeks’ business office where armed
employees had been present the last time the FBI conducted a search. And too, as the agent
knew, some Federal Security employees had been extensively involved in helping the
Skrzypeks conceal their fraud. These factors provided the grounds for a reasonable
suspicion that an armed employee with a stake in the outcome of the investigation could be
in the attic. And the agent’s search was certainly limited to a cursory inspection of the attic
because he ascended only a few steps—just enough to see into the space and scan for
potential threats.
Even if the suppression motion had been arguable, the Skrzypeks’ attorneys had a
strategic reason for choosing not to go that route. The district court explained that, during
the Skrzypeks’ trial, counsel opted to minimize the importance of the seized documents in
an effort to defeat the obstruction charge by showing that the attic records hadn’t really
been concealed because the government already had the same information from other
sources. In evaluating counsel’s performance, we start with a “strong presumption” that
counsel provided effective representation. Bednarski v. United States, 481 F.3d 530, 535 (7th
Cir. 2007). Moreover, when it appears that counsel has made a tactical decision, we will not
play “Monday‐morning quarterback” and second guess the attorney’s choice. Smith v. Gaetz,
565 F.3d 346, 354 (7th Cir. 2009). If the documents largely duplicated the information the
government already had (and the Skrzypeks have never contended otherwise), then counsel
had no reason to invest time and effort trying to stop the government from using the attic
records at trial. Nor could the Skrzypeks have been prejudiced by the admission of evidence
that already was part of the government’s overwhelming case against them.
Accordingly, in both appeals we AFFIRM the judgment of the district court.

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