362 F.3d 360 (6th Cir. 2004), 02-3931, United States v. McBride

Docket Nº:02-3931
Citation:362 F.3d 360
Party Name:United States v. McBride
Case Date:March 30, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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362 F.3d 360 (6th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


James Thomas McBRIDE, Defendant-Appellant.

No. 02-3931.

United States Court of Appeals, Sixth Circuit

March 30, 2004

Rehearing En Banc Denied May 28, 2004.

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Daniel Allen Brown (argued and briefed), United States Attorney' Office, Columbus, OH, for Plaintiff-Appellee.

Robert J. Dunn (argued and briefed), Bay City, MI, for Defendant-Appellant.

Before NELSON, GILMAN, and ROGERS, Circuit Judges.


GILMAN, Circuit Judge.

James Thomas McBride was convicted of (1) presenting a false claim against the IRS, and (2) various obstruction of justice and bankruptcy fraud charges based upon certain financial transactions he initiated that were related to a tax evasion case against his girlfriend. He insisted on proceeding without the assistance of counsel at his trial. The jury convicted him on all counts. McBride seeks to overturn his conviction on the basis that his waiver of counsel was ineffective and because the evidence against him was allegedly insufficient. For the reasons set forth below, we AFFIRM the district court's determination that McBride effectively waived his right to counsel at all stages of the proceedings and that there was sufficient evidence to convict him on Counts 2-6, but REVERSE McBride's conviction on Count 1 because there was insufficient evidence to support the verdict on that charge. We also VACATE McBride's sentence and REMAND for resentencing consistent with this opinion.


A. Factual background

Katina Kefalos was convicted by a jury, in proceedings before District Judge Algenon L. Marbley, of evading $12,990.67 in federal income taxes. Kefalos was McBride's girlfriend. During the course of her trial, Kefalos fired the two attorneys--David Axelrod and Terry Sherman--who were appointed to represent her. Prior to Kefalos's sentencing, McBride sent a check for the $12,990.67 to IRS revenue agent Margaret Nypaver, who had unsuccessfully attempted to collect this sum from Kefalos and who testified against her at trial. McBride knew that his check would "bounce" because it was drawn on an account that he had closed one year earlier. He then submitted bad checks from the same account to the Franklin County Treasurer's Office to purportedly pay the real estate taxes for the first half of 2001 on the residences of Judge Marbley, attorneys Axelrod and Sherman, and agent Nypaver.

The Treasurer's Office, without waiting to see if the checks would clear, issued statements to McBride acknowledging that he had paid these real estate taxes. McBride then used the statements as evidence of his creditor status when he subsequently filed four involuntary bankruptcy

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petitions in the United States Bankruptcy Court for the Southern District of Ohio against Judge Marbley, attorneys Axelrod and Sherman, and agent Nypaver. He also paid the $200 filing fee for each of the bankruptcy petitions with more bad checks that were drawn on his closed account.

B. Procedural background

McBride was indicted on the following six felony charges: presenting a false claim against the government in violation of 18 U.S.C. § 287, obstructing justice in violation of 18 U.S.C. § 1503, obstructing the due administration of the internal revenue laws in violation of 26 U.S.C. § 7212(a), and three counts of bankruptcy fraud in violation of 18 U.S.C. § 157.

In two appearances before the designated magistrate judge, McBride was advised of his right to counsel, including his right to appointed counsel if he could not afford to retain an attorney. At his arraignment, McBride elected to proceed pro se. David Graeff was appointed as standby counsel.

During a pretrial conference, the district court extensively questioned McBride about his decision to represent himself. McBride was first asked about his educational background and then questioned to verify that he was not under the influence of prescription medication, narcotics, or alcohol. The court also inquired about McBride's legal experience. McBride responded that he had been a criminal defendant before, that he had assisted other people in representing themselves in several cases, and that he had participated in both federal and state criminal proceedings. The court then went over each count of the indictment in detail and stressed the severity of the penalties involved, including the possibility of consecutive sentences. With the following exchange, the court closed this line of questioning:

THE COURT: So, you know just exactly how much jeopardy that you are in, in this proceeding? You realize that if you represent yourself, you are on your own? Do you realize that, Mr. McBride?

MCBRIDE: Yes, sir, I do.

The court proceeded to ask McBride about his familiarity with the trial process, the Federal Rules of Evidence, and the Federal Rules of Criminal Procedure. McBride expressed comfort with these procedural matters. He was then advised that should he take the stand, he would have to ask questions of himself and would not be permitted to testify in narrative form. Finally, the court issued the following warnings to McBride:

THE COURT: In looking at the charges against you, Mr. McBride, and the complexity of this case, this is not an ordinary--this isn't some fender bender accident?

MCBRIDE: Exactly, sir.


THE COURT: At least in the opinion of the Court, you would receive a far better defense if you would proceed with a lawyer, rather than being on your own. And I think it is unwise for you to try and represent yourself. And while you are familiar with the law, you are not familiar to the depth that would be necessary to give yourself the best possible defense, considering the complexity of what you are charged with.

MCBRIDE: I understand.

THE COURT: And while you have been in a court proceeding or maybe more than one, different things come up at different proceedings that you may never have seen or heard of before.... And you have at your elbow there someone who has had many years of experience in this and other

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courts and would be termed probably an expert on federal trial work.

Let me ask you this, Mr. McBride. Is your decision entirely voluntary on your part?

MCBRIDE: Yes, sir.

The district court then concluded that McBride had knowingly and voluntarily waived his right to counsel, that he was competent to do so, and that he had demonstrated an understanding of the proceedings and the charges he faced. Graeff was nonetheless requested by the court to continue in his role as standby counsel.

McBride represented himself throughout his trial with the assistance of Graeff. The jury found him guilty on all counts. At sentencing, McBride raised no objections to the Presentence Report and used the hearing to state his view that the district court and the U.S. Attorney's Office were engaged in fraudulent "smoke and mirrors" accounting practices. The district court sua sponte raised concerns about the probation officer's determination that McBride should be sentenced under the United States Sentencing Guidelines in accordance with Offense Level 26, Criminal History Category IV, within a range of 92-115 months of imprisonment. It decided that McBride should instead be sentenced under Offense Level 22, Criminal History Category IV. The court then sentenced McBride to 78 months of imprisonment on Count 2; 60 months on Counts 1, 4, 5, and 6; and 36 months on Count 3, all to be served concurrently.


A. McBride knowingly and intelligently waived his right to counsel

1. Standard of review

McBride argues on appeal that he did not effectively waive his right to counsel at trial or at sentencing. Both parties agree that the standard of review for such claims is de novo, but neither party provides any citations to applicable Sixth Circuit precedent directly on point. Our sister circuits uniformly apply a de novo standard of review to a district court's conclusion of law that a defendant has waived his right to counsel. See, e.g., United States v. Kimball, 291 F.3d 726, 730 (11th Cir.2002); United States v. Turner, 287 F.3d 980, 983 (10th Cir.2002); Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.2000) (en banc).

In this circuit, however, two trends have developed. We have on occasion applied "plain error" review to examine the validity of a defendant's waiver of counsel. See United States v. Modena, 302 F.3d 626, 630-31 (6th Cir.2002) (holding that the plain error standard applies where the defendant fails to object to continuing his self-representation); United States v. Herrera-Martinez, 985 F.2d 298, 301 (6th Cir.1993) (holding that because no specific objection was made at trial to the defendant's proceeding pro se, the plain error standard applied).

Other panels have approached the waiver-of-counsel issue by omitting discussion of the standard of review and proceeding to engage in a thorough review of the colloquy between the district court judge and the defendant. See, e.g., United States v. Colbert, 55 Fed.Appx. 225, 229-30 (6th Cir. Feb.12, 2002) (unpublished opinion) (reviewing the hearing transcript to determine whether the judge conducted the model inquiry); Noble v. Wilkinson, No. 92-4121, 1993 WL 436850, at *1 (6th Cir. Oct.27, 1993) (unpublished opinion) ("When reviewing on direct appeal a claim of error regarding a waiver of counsel, we examine the substantive, detailed inquiry required of the district court pursuant to United States v. McDowell ") (citation omitted); United States v. Miller, 910 F.2d 1321, 1324 & n. 3 (6th Cir.1990)

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(reproducing the colloquy and holding that it constituted an effective...

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