U.S. v. Bisong

• Decision Date: 20 May 2011
• Docket Number: No. 08–3014.,08–3014.
• Citation: 645 F.3d 384
• Parties: UNITED STATES of America, Appelleev.John BISONG, also known as John Bisong Atem, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

645 F.3d 384

UNITED STATES of America, Appellee

v.John BISONG, also known as John Bisong Atem, Appellant.

No. 08–3014.

United States Court of Appeals, District of Columbia Circuit.

Argued April 11, 2011.Decided May 20, 2011.

Appeal from the United States District Court for the District of Columbia (No. 02cr00242–01).Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.Stratton C. Strand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, Elizabeth Trosman, and Steven J. Durham, Assistant U.S. Attorneys.Before: ROGERS and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.Opinion for the Court by Circuit Judge ROGERS.ROGERS, Circuit Judge:

John Bisong, aka John Bisong Atem, appeals his conviction by a jury of seven counts of bank fraud and four counts of immigration fraud, 18 U.S.C. §§ 1344 & 1546(a), whereby he filed hundreds of applications for labor certification containing false representations that various shell companies he controlled would employ his alien clients and he reproduced counterfeit checks to draw on his clients' banks accounts involving hundreds of thousands of dollars. He challenges the district court's decision to allow him to represent himself at trial, an alleged denial of his right to prepare his defense, and various rulings made by the district court in sentencing. Only the first requires extended discussion.

Bisong contends that the district court erred in determining that his waiver of his right to counsel under the Sixth Amendment to the U.S. Constitution was unequivocal and voluntary, knowing, and intelligent. Specifically, he contends that the district court, after initially denying his motion to represent himself and appointing an assistant Federal Public Defender (“AFPD”) to represent him for four months, was required to inquire again whether his request to represent himself was unequivocal despite the passage of time and to repeat its prior admonishments on the dangers of self representation in order to ensure that his decision to represent himself, with standby counsel, was voluntary, knowing, and intelligent under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Although the district court might have been well advised to inquire about Bisong's waiver of counsel on the same day it accepted the waiver, viewing the proceedings as a whole, we conclude that the district court's colloquy was constitutionally adequate to confirm that he voluntarily chose to represent himself and did so knowingly and intelligently.

Further, assuming there is a Sixth Amendment right to prepare a pro se defense upon self-representation, Bisong fails to show he was denied adequate access to business records seized by law enforcement or that he was prejudiced in his defense by limitations on access to those materials and other government discovery. Documents were turned over by the prosecutor to both his retained counsel and the AFPD who remained as Bisong's standby counsel at trial, Bisong advised both counsel of the business records he sought, and the district court afforded him time to review them.

Finally, all but one of Bisong's challenges to the enhancements imposed by the district court in sentencing lack merit, and as to that enhancement there was insufficient evidence to show that Bisong was a leader under U.S. Sentencing Guidelines § 3B1.1. Accordingly, we affirm his conviction and remand for resentencing.

I.

In a superseding indictment of September 25, 2002, Bisong was charged with operating, from March 1999 to January 2002, immigration fraud and check fraud schemes principally through the American Immigration Agency (“AIA”), which offered foreign nationals assistance in obtaining U.S. immigration documents, such as I–551 forms (i.e., “green cards”). The immigration fraud scheme involved filing 183 Applications for Alien Employment Certification (i.e., ETA–750 forms) that certified that the employer had sufficient funds to pay the alien and would be able to place the alien on payroll on or before the date of the alien's proposed entrance into the United States. See 8 U.S.C. §§ 1153(b)(3)(C), 1182(a)(5)(A). Bisong allegedly promised clients that for a fee he would obtain green cards for them, within twelve months or their money would be refunded, by finding employment for them. Instead of finding legitimate employment, Bisong represented on the ETA–750 forms that his clients would be employed at one of twelve companies controlled by Bisong, knowing those companies lacked the resources to hire all of the aliens and would not in fact hire them. The bank fraud scheme involved Bisong stealing at least $260,850 from AIA clients by creating on his computer counterfeit checks made payable to AIA or one of his affiliated companies, using information provided on the legitimate checks, such as the routing number, and depositing the counterfeit checks drawn on several banks and federal credit unions into the AIA and affiliated accounts.

At his arraignment on June 17, 2002, Bisong was represented by Assistant Federal Public Defender (“AFPD”) David Bos. Bisong pleaded not guilty to the charges in the May 31, 2002 indictment and he remained in custody unable to make bond. Retained counsel John Iweanoge entered his appearance on July 9, 2002 and shortly thereafter moved for expedited reconsideration of Bisong's bond. Iweanoge filed a renewed motion on September 19 when no action had been taken on his prior motion and requested an immediate hearing.

On October 30, 2002 Bisong wrote the first of three letters to the district court judge. In that letter Bisong expressed frustration over his representation and the pace of the proceedings. He claimed that continuances had been sought by both Bos and Iweanoge without his consent when he sought a speedy trial. He also stated that he had been unable to pay retained counsel and “cannot expect [Iweanoge] to spend money out of his own resources to do investigations on my case, gather evidence and arrange for witnesses to come to this court to testify.” He claimed to be placed at a “grave disadvantage” because of the volume of documents seized by the government, noting that it would take a lawyer “a minimum of 30 full days of hard work just to go through every paper [ ] seized, searching for what I need, and a minimum of 100 days just to go through every document stored in all the computers seized—assuming he is an expert in computers.” He reported that Bos did not devote time to his case and “always told [Bisong] that he had so many other cases worse than [Bisong's] and he had to give them higher priority.” Bisong further claimed that “to be able to defend [him] properly” an attorney would need to be familiar with “not only criminal law, but also business and corporate laws, immigration laws, labor laws, tax laws, international affairs and cultures and citizenship issues” as well as “how to reason and see things as leaders, businesspersons and people with vision do,” and “must also have time to study and understand all these issues pertaining to my situation.” Iweanoge, Bisong continued, “seem[ed] to be frustrated with [the] case,” and Bisong stated that he was “losing [his] trust in [Iweanoge's] willingness to represent [his] best interest.” “I do not know,” Bisong wrote, “why he has not yet withdrawn from the case.”

In a second letter of November 5, 2002, Bisong renewed his request for reconsideration of his bond and asked that a trial date be set for that month and that the District of Columbia detention facility where he was housed be ordered to give him “full-time access” to telephone, fax machine, email and library resources as well as access to all evidence the government seized. Bisong warned: “I may have to represent myself in the trial because I cannot pay my lawyer.” In his view, “lawyers and public defenders” would not “be able to invest such amount of time” as necessary to defend his case. On November 12, 2002, Bisong wrote the district court judge that he needed his “help and immediate action.” Meanwhile, on November 7, 2002, Iweanoge filed a motion to withdraw as counsel or alternatively to certify payment of counsel fees by the district court, citing the lack of payment and counsel's unavailability for trial after December 20, 2002.

The district court held a hearing on the pending motions on November 25, 2002. During this hearing, the district court asked how Bisong wanted to proceed. First, regarding the status of counsel, Iweanoge stated that “Bisong would like me to continue to represent him if I'm going to be available to try to the case,” but “wishes to be tried as soon as possible,” noting that Bisong was presently “unable to pay [him] ... to represent him” and “has been unable to play [sic]” because he is incarcerated and unable to make bond. Tr. 4–5 (Nov. 25, 2002). Iweanoge advised he would be available to try the case the following week but had prior commitments in other district courts starting December 18 and would be unavailable thereafter until June 2003. Id. at 5–6. Regarding Bisong's views, Iweanoge stated that “if he's going to continue to be incarcerated, then [Bisong] would rather go to trial with another lawyer even though I know that his correspondence with the [district] court ... is that he would rather proceed by himself, but I've advised him and I believe he would be willing to have another lawyer represent him.” Id. at 6–7. Upon consulting with Bisong, Iweanoge advised that “he doesn't want to be represented by the public defender, that he would rather represent himself if he's not going to be released pending the trial ... when I'm going to be available.” Id. at 7. The district court asked: “He wants to represent himself?” Iweanoge answered “Yes, Your Honor.” The court: “He wants...