United States v. Green, 031913 FED3, 11-2454

Docket Nº:11-2454
Opinion Judge:TASHIMA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. MARK GREEN, a/k/a Mark Andre Green, a/k/a Anthony Covington, a/k/a Tracy Green, a/k/a Mark Wallace, a/k/a Andre Green, a/k/a James Smith, a/k/a Adrian Mercier, a/k/a Mark Brown Mark Green, Appellant
Judge Panel:Before: AMBRO, GREENAWAY, JR., and TASHIMA, Circuit Judges.
Case Date:March 19, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit



MARK GREEN, a/k/a Mark Andre Green, a/k/a Anthony Covington, a/k/a Tracy Green, a/k/a Mark Wallace, a/k/a Andre Green, a/k/a James Smith, a/k/a Adrian Mercier, a/k/a Mark Brown Mark Green, Appellant

No. 11-2454

United States Court of Appeals, Third Circuit

March 19, 2013


Submitted Under Third Circuit LAR 34.1(a) September 19, 2012

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-08-cr-00044-001) District Judge: Hon. Juan R. Sánchez

Before: AMBRO, GREENAWAY, JR., and TASHIMA, [*]Circuit Judges.


TASHIMA, Circuit Judge.

After a three-day jury trial in which he represented himself, Defendant-Appellant Mark Green was convicted of one count of access device fraud conspiracy, two counts of unauthorized use of an access device, and one count of aggravated identity theft. The District Court sentenced Green to 139 months' imprisonment and ordered the forfeiture of Green's Mercedes-Benz and $9, 000. Green appeals his conviction and sentence on twelve distinct grounds. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and we will affirm the District Court.


In 2007, the United States Secret Service began an identity theft investigation into the purchase of vehicles using stolen identities and the use of those identities to obtain unauthorized credit cards. Investigators learned that a Mercedes-Benz received over $9, 000 in repairs charged to two fraudulent credit cards at a Fort Washington dealership. On August 2, 2007, a detective of the Upper Dublin Township Police Department seized and searched the car, which belonged to Mark Green ("Green"), and obtained a warrant for his arrest.

On November 16, 2007, Green voluntarily went to the Upper Dublin Township Police Department to speak with a detective and a Secret Service agent. He admitted that he had applied for and used fraudulent credit cards to pay for repairs to his car. He also told the officers that he became involved in identity theft in January 2007, and that he was the "boss" of an organization involved in such activities. In December 2007, state police executed a search warrant on Green's apartment.

Green was arrested on December 26, 2007. The government filed an indictment on January 24, 2008, alleging that Green committed: (1) one count of access device fraud conspiracy, in violation of 18 U.S.C. § 1029(b)(2); (2) two counts of unauthorized use of an access device, in violation of 18 U.S.C. § 1029(a)(2); and (3) two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).

On March 18, 2008, the government filed a motion for a continuance of the trial date pursuant to 18 U.S.C. § 3161(h)(7)(A), 1 explaining that the government and Green were engaged in plea negotiations, and stating that Green's attorney joined the motion. The District Court granted the motion on March 20, 2008, specifically finding that the parties' plea negotiations justified an "ends of justice" continuance under § 3161(h)(7)(A). The District Court set a new trial date of June 30, 2008. On May 2, 2008, Green's attorney filed a motion for pretrial release. Green was arraigned on May 8, 2008.

On June 24, 2008, six days before trial was set to begin, Green's attorney filed an unopposed motion for a continuance pursuant to § 3161(h)(7)(A), explaining that he needed additional time to prepare for trial. On June 25, 2008, the District Court granted the continuance without specifying a new trial date. The court stated that the interests of justice were served by granting counsel time to prepare for trial and that trial would be continued "until a date to be set upon consultation with the parties."

During a bail hearing held on August 15, 2008, the court stated that the first available trial date was February 2, 2009, and the parties agreed to that date. The District Court denied Green's bail motion. Nothing in the District Court record after August 15 indicates why the court did not file an order scheduling trial for February 2; no further mention is made of the February 2 date and the next filing on the District Court docket is dated February 27, 2009 – the day that Green's attorney moved to withdraw as counsel, citing an irreconcilable conflict of interest.

On March 9, 2009, the District Court held a hearing on defense counsel's motion to withdraw. There, Green complained that his attorney agreed to continuances without authorization, that Green had difficulty getting in touch with the attorney, and that the attorney failed to file a number of motions and an appeal that Green requested. After discussing these complaints with Green and his attorney in some detail, the court explained to Green that, in its view, the attorney was doing everything he could competently to represent Green. The court gave Green the choice of representing himself or working things out with his attorney, explaining that Green's complaints did not amount to irreconcilable differences and the court would not appoint a replacement attorney.2

On June 26, 2009, Green's attorney filed a second motion for pretrial release. On July 15, 2009, the District Court held a telephone status conference with the parties and filed an order setting the trial date for October 26, 2009. The order was written on a standardized § 3161(h)(7)(A) continuance form. On July 23, 2009, the District Court held a hearing on the second bail motion. That same day, Green wrote a handwritten letter to the District Court, asserting his right to a speedy trial and claiming that the continuances requested by his attorney were against his wishes.

On July 27, 2009, the District Court denied Green's second bail motion. Green appealed the denial of his motion to this Court, and we affirmed the District Court on September 15, 2009. On October 23, 2009, three days before the scheduled trial date, the District Court ordered the trial continued to November 2, 2009. Although the District Court used a § 3161(h)(7)(A) continuance form, it did not specify any reason for the continuance on the form.

On October 30, 2009, the District Court held a hearing on the parties' pretrial motions. The court first considered Green's motion to suppress the statements he made to the police on November 16, 2007, on the basis that his Miranda waiver was not voluntary and intelligent. The government called the two officers who spoke with Green on November 16: the Upper Dublin Township police detective and the Secret Service agent. The detective testified that Green voluntarily came in to speak with the police in November, that the detective read Green his rights from a Miranda form, and that Green confirmed that he understood his rights verbally and in writing. Green signed his name, but did not fill out the portion of the Miranda form indicating the time that he signed it, although he did date the form.

The Secret Service agent testified that she remembered Green being read his rights and that Green acknowledged them and signed a Miranda waiver form. She did not know why the portion of the form specifying the time of the waiver was blank. The meeting lasted approximately two to two and a half hours, and Green was calm and eager to talk. The agent took notes during the meeting of what was said. Before the meeting, she had informed Green that he would be arrested after speaking to the police, because there was an open warrant for his arrest.

After the suppression hearing, Green's attorney told the court that Green wished to proceed pro se. The court asked Green about his experience and familiarity with the rules of evidence and objections, and it informed Green that self-representation would be dangerous and foolish. Green said that he felt he could present the case in the way that he thought it should be presented. The court then asked the government to describe the counts in the indictment and the penalties for those offenses. The government listed the maximum sentences for the five counts in the indictment and said that it believed the total offense level for purposes of sentencing was six, although the government was not yet aware of Green's criminal history score. The court explained to Green that his offense level would be six for purposes of sentencing, but that Green could face a sentence higher than the Guideline range if circumstances justified an upward departure.

The court then asked Green if he was making the decision to represent himself freely; Green answered in the affirmative. The court warned Green that once he gave up his right to representation, it would be binding for all purposes and he would not be appointed a lawyer through sentencing. The court then stated that it would give Green the weekend to think about his decision and that the court would appoint his then-attorney as standby counsel at trial, if Green did not change his mind. The court then denied Green's pro se oral motions for dismissal of the case, based on an allegedly defective indictment and a speedy trial violation.

On November 2, 2009, the District Court denied Green's motion to suppress his police statements. The court found that the testimony at the suppression hearing demonstrated that Green voluntarily agreed to speak with law enforcement officers, was advised of his Miranda rights, and signed the waiver form. Accordingly, the District Court found that Green's waiver was knowing and voluntary.

Trial commenced on November 2, 2009. Green informed the court that he had decided to proceed pro se with his attorney as standby counsel. The court stated that it would permit Green to represent himself but that the court was neither pleased...

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