U.S. v. Brown, 88-2694

• Decision Date: 30 March 1989
• Docket Number: No. 88-2694,88-2694
• Citation: 870 F.2d 1354
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald P. BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1354

870 F.2d 1354

UNITED STATES of America, Plaintiff-Appellee, v. Donald P. BROWN, Defendant-Appellant.

No. 88-2694.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 3, 1989.

Decided March 30, 1989.

Robert N. Meyeroff, Milwaukee, Wis., for defendant-appellant.

Francis D. Schmitz, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before CUMMINGS, POSNER and FLAUM, Circuit Judges.

CUMMINGS, Circuit Judge.

Donald Brown appeals his conviction and the sentence imposed upon him in the Eastern District of Wisconsin ¹ following his guilty plea to one count in an indictment charging him with violating 18 U.S.C. Sec. 1343, the federal wire fraud statute. Brown argues that he is entitled to a trial, or alternatively resentencing, because: (1) the magistrate conditioned continuing bail on Brown's acceptance of an attorney not of his choice in violation of Federal Rule of Criminal Procedure 44(a); (2) the district court erred when it denied his motion to sever his scheduled trial from that of his codefendant; (3) he was not afforded a sufficient opportunity to review and object to the presentencing report, and the district judge failed to make a finding of inaccuracies or explicitly refused to disregard portions that Brown argues were erroneous; (4) there was insufficient evidence to warrant restitution of $230,000 as imposed. Finding no merit in Brown's arguments, we affirm the judgment of conviction.

I. FACTUAL BACKGROUND AND PROCEEDINGS BELOW

Donald Brown and codefendant Robert Lynch were indicted on September 22, 1987. The indictment consisted of eleven counts, of which two charged Brown, and was premised upon a scheme to defraud the Community Bank of De Pere, Wisconsin. As described in the indictment, Brown was working for the Heli-Skimmer Corporation, a Colorado company located in San Diego, California, which developed watercraft technology. Brown was trying to raise capital to support Heli-Skimmer's planned expansion to Brown County, Wisconsin. At the same time, his acquaintance and codefendant Lynch represented a group of wealthy Minnesota investors, known collectively as El Cortez, interested in investing in a Las Vegas, Nevada, hotel.

According to the indictment, from July 1982 through June 1983 Brown and Lynch devised a scheme to defraud the Community Bank. Ostensibly on behalf of El Cortez, Lynch applied for various loans from the Community Bank and in support of the application presented forged documents to the bank. The documents fraudulently represented that El Cortez would guarantee the loans, the proceeds of which purportedly were to be used by El Cortez to invest in Heli-Skimmer's future Brown County plant. Lynch also assured the president of Community Bank that Al Ross, reportedly an investment adviser to the Teamsters Union, was working on a loan from the Teamsters to Heli-Skimmer. In reality, Al Ross was an alias for Brown, who had no connection whatsoever with the Teamsters but yet in later meetings falsely assured the bank president that the Teamsters would be working with Heli-Skimmer and were prepared to lend it $1.4 million. ²

Based on the fraudulent representations, the Community Bank approved the loan application and gave Lynch a letter of credit for the benefit of El Cortez. Lynch subsequently used the letter of credit as collateral for a loan from Heli-Skimmer's bank in La Jolla, California, and later caused the Community Bank to wire monies to the California bank, all under the pretense that the funds were being used by El Cortez to invest in Heli-Skimmer's proposed Brown County plant. The scheme was furthered by Brown's assurances--under the alias Al Ross, investment advisor to the Teamsters Union--to the Community Bank president that the Teamsters were investing in the project as well. All totaled the Community Bank lost nearly $1.2 million as a result of the scheme.

Brown, along with Lynch, was arraigned on October 16, 1987. Count two of the indictment alleged that around December 10, 1982, Lynch and Brown caused the Community Bank to wire $75,000 to the California bank; count three alleged that around May 2, 1983, the pair caused the Community Bank to wire $230,000 to the California bank. Brown was allowed to remain free on bond, his travel restricted to Wisconsin, where he was to be tried, and Florida, where he was then residing. The magistrate set forth a briefing schedule, requiring pretrial motions to be filed by October 26, 1987, and scheduled the trial for December 7, 1987. A second hearing was held and, due to the volume of discovery and the complexity of the charges, the motion deadline was extended to November 2, 1987, and the trial continued until March 7, 1988. Throughout this time no appearance of counsel had been filed on Brown's behalf, although he had informed the magistrate that he would be retaining counsel.

On December 10, 1987, the magistrate held a status conference, the primary purpose of which was to determine what progress Brown had made in retaining counsel. The magistrate reminded Brown of his previous statements that he would retain counsel and emphasized the importance of counsel in a case as complex as this, as well as the significance of the Speedy Trial Act. Brown acknowledged financial difficulty in retaining the counsel of his choice, but expressed some optimism that the financial hurdle would soon be cleared. Rather than wait further for Brown to act, the magistrate instead decided to confine him to the Eastern District of Wisconsin until he retained counsel. Not coincidentally, the magistrate also recommended an attorney known by the court to be competent and available that afternoon, and told Brown that the magistrate would be willing to appoint the recommended attorney that same day. Brown met with that attorney and the magistrate did in fact appoint him as counsel that day; consequently, Brown was free to return to Florida later that same day.

Prior to trial, Brown's appointed counsel moved the district court for, among other things, a continuance and severance of Brown's trial from that of codefendant Lynch. The court granted the continuance but denied the motion for severance without prejudice and with leave to refile at a later time. Brown's counsel did not refile the motion for severance.

Brown ultimately entered into a plea agreement with the government. Brown pleaded guilty to count three of the indictment, which alleged that he and Lynch defrauded the Community Bank of $230,000. During the entry of plea, the government made its offer of proof to which Brown objected as to two minor points. ³ The plea was accepted by the district court, which found a sufficient factual basis for it. Sentencing was scheduled for August 18, 1988; in the meantime a presentence report was to be prepared in consideration of sentencing.

During sentencing, in response to questioning from Judge Gordon, both Brown and his attorney said that they had seen the presentence report and that there was no reason to forestall sentencing. Neither Brown nor his counsel objected to any factual statements contained in the presentence report; the one objection raised by Brown's attorney concerned an excerpt from a Minnesota newspaper which was read aloud by the government during the sentencing hearing. ⁴ The court then sentenced Brown to four years' imprisonment and restitution in the amount of $230,000.

II. APPEAL TO SET ASIDE GUILTY PLEA

Although he pleaded guilty to the crime charged, Brown complains that errors below entitle him to a trial. Specifically, Brown argues that he was coerced to accept appointed counsel, and his pretrial motion for severance of his trial from his codefendant's was incorrectly denied. Once a plea of guilty has been entered, non-jurisdictional challenges to the constitutionality of the conviction are waived and only the knowing and voluntary nature of the plea may be attacked. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. Accordingly, in contrast to Brown's argument, we may not remand this case for a trial unless Brown is able to first show that his plea of guilty lacked the knowing and voluntary predicate base, since neither of his arguments for a trial attack the district court's jurisdiction over the case.

A. Right to Counsel of Choice

Brown first argues that he was denied his choice of counsel. Although criminal defendants do not have an absolute right to counsel of their choice, see United States v. Ely, 719 F.2d 902 (7th Cir.1983), neither are defendants required to accept counsel chosen and appointed by the trial court. Federal Rule of Criminal Procedure 44(a), which is a restatement of existing law under the Sixth Amendment, entitles a criminal defendant unable to obtain counsel to court-appointed counsel unless he waives such appointment.

Brown argues that he was coerced to accept counsel other than by his own choosing as a result of the status conference in which Magistrate Robert L. Bittner ordered him to remain in the Eastern District of Wisconsin until he was represented by counsel. This supposedly amounted to a violation of Federal Rule of Criminal Procedure 44(a) and the Bail Reform Act of 1984 because an illegitimate condition was attached to his original bail. According to Brown, the magistrate's action coerced him to accept court-appointed counsel, since he lacked housing and funds to stay in Wisconsin and was prohibited by the magistrate from returning to his home in Florida. Although it may have been an abuse of discretion for the magistrate to attach such a condition to his prior bail, ⁵ there is not a hint of evidence to suggest that this impacted upon Brown's later decision to plead guilty.

Brown had assured the magistrate during his October 16, 1987, arraignment that he would retain counsel, and thereafter had continued to assure court officers of that intention. Yet on December 10, the date of the status hearing, three days after his trial was originally...