U.S. v. Brown

• Decision Date: 10 December 1984
• Docket Number: No. 1144,D,1144
• Citation: 744 F.2d 905
• Parties: UNITED STATES of America, Appellee, v. Wilbert BROWN, Jr., Defendant-Appellant. ocket 83-1454.
• Court: U.S. Court of Appeals — Second Circuit

Page 905

744 F.2d 905

UNITED STATES of America, Appellee, v. Wilbert BROWN, Jr., Defendant-Appellant.

No. 1144, Docket 83-1454.

United States Court of Appeals, Second Circuit.

Argued April 24, 1984.

Decided Sept. 7, 1984.

Certiorari Denied Dec. 10, 1984.

See 105 S.Ct. 599.

Steven M. Schatz, New York City (Gelberg & Abrams, New York City, on the brief), for defendant-appellant.

Martin J. Auerbach, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Paul Schechtman, Asst. U.S. Atty., New York City, on the brief), for appellee.

Before KAUFMAN, MESKILL, and NEWMAN, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal primarily concerns the issue whether the inclusion in a criminal sentence of a judicial order requiring the defendant to make restitution to the victims of his crimes violates the defendant's Seventh Amendment right to trial by jury. The issue is raised by Wilbert Brown, Jr. on this appeal from a December 16, 1983, judgment of conviction in the District Court for the Southern District of New York (Pierre N. Leval, Judge). Following a jury trial, Brown was found guilty of two counts of fraud arising out of a scheme in which he falsely held himself out to be an attorney, in violation of 18 U.S.C. Secs. 1343, 2314 (1982). Appellant first challenges his conviction on the ground that the trial judge improperly refused his request to proceed pro se. Appellant then asks that we vacate that part of his sentence ordering him to pay $20,030 as restitution to the victims of his crimes on the ground that the Victim and Witness Protection Act of 1982, 18 U.S.C. Secs. 3579, 3580 (1982) ("the Act" or "VWPA"), is unconstitutional. For reasons that follow, we conclude that the District Judge acted within his discretion in denying appellant pro se status and that the VWPA is constitutional.

Facts

During the pretrial phase of this case, Brown and his court-appointed attorney, John Byrnes of the Legal Aid Society's Federal Defenders Services Unit, disagreed about the conduct of Brown's defense. Brown raised with his lawyer the possibility that he take part in his own representation. Byrnes, perceiving loss of his client's trust, asked to be relieved from further representation of Brown. At a September 7, 1983, pretrial conference, Judge Leval sought to resolve the issue of representation. The District Judge ruled out the possibility of Brown's participating with Byrnes in the conduct of his defense, affording Brown the choice of representation by Byrnes, representation by another appointed attorney, or proceeding pro se. After determining that Brown did not wish to have his counsel relieved, Judge Leval denied Byrnes' request to be relieved as counsel. That settled the issue through the remainder of pretrial activity and the first three days of the trial.

After the Government rested its case and the Court denied a motion for acquittal, however, Brown requested that he be granted "dual responsibility with respect to the area of questioning." Judge Leval denied this request on the grounds that Brown did not have a constitutional right to such hybrid representation and that Brown would suffer no prejudice by Byrnes' continued representation. Judge Leval also denied both a renewed request by Byrnes to be relieved and a request by Brown to proceed pro se. The District Judge determined that a change of representation so late in the trial would be disruptive and would prejudice the prosecution and the defense.

At trial the Government established that Brown defrauded at least seven people by falsely holding himself out to be a lawyer. Brown bilked his victims of at least $20,030, primarily fees for "legal" services not rendered at all, much less by a licensed attorney, and non-existent "court costs." Judge Leval sentenced Brown to concurrent sentences of five and seven years' imprisonment. Pursuant to the VWPA, the District Judge also sentenced appellant to pay $20,030 in restitution over a five-year period following his release from incarceration. ¹

Discussion

1. Pro Se Representation. Judge Leval acted well within his discretion in denying appellant's mid-trial request to proceed pro se. Although the Sixth Amendment implies a right of self-representation, Faretta v. California, 422 U.S. 806, 818-21, 95 S.Ct. 2525, 2532-33, 45 L.Ed.2d 562 (1975), this right is unqualified only if exercised before the commencement of trial. Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976).

Once the trial has begun with the defendant represented by counsel, ... his right thereafter to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance.

United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965) (citations omitted), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966). ²

The record reveals no prejudice suffered by the appellant by reason of the denial of his application to conclude the trial on a pro se basis. Indeed, when he called the witnesses appellant desired, appellant's counsel corrected the only colorable criticism of his performance. Judge Leval was well aware of the history of appellant's relationship with his counsel and reasonably concluded not only that his representation by counsel was adequate but also that appellant's representation of himself would have been disruptive of the trial process. Under all the circumstances, the District Court's refusal to permit pro se representation during the trial will not be disturbed.

2. Restitution. We turn next to appellant's constitutional challenges to the restitution order. He contends primarily that the order violated his Seventh Amendment right to a jury trial "[i]n Suits at common law." In support of this claim appellant argues that a restitution order imposed under the VWPA is the equivalent of a civil judgment because it is compensatory, it has res judicata effect, and it is enforceable in the same manner as a civil judgment. We hold that these characteristics do not transform a criminal sentence into a civil adjudication requiring fact-finding by a jury.

As a general matter, there is no constitutional requirement that a jury determine any aspect of a defendant's sentence. Williams v. New York, 337 U.S 241, 250-51, 69 S.Ct. 1079, 1084-85, 93 L.Ed. 1337 (1949); Turnbough v. Wyrick, 551 F.2d 202, 203 (8th Cir.), cert. denied, 431 U.S. 941, 97 S.Ct. 2658, 53 L.Ed.2d 260 (1977); Payne v. Nash, 327 F.2d 197, 200 (8th Cir.1964); Virginia ex rel. Shifflett v. Cook, 333 F.Supp. 718, 721 (W.D.Va.1971). The Eighth Amendment circumscribes the outer limits of permissible penalties, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 3007-10, 77 L.Ed.2d 637 (1983); Trop v. Dulles, 356 U.S. 86, 99-103, 78 S.Ct. 590, 597-599, 2 L.Ed.2d 630 (1958), and the Due Process Clause of the Fifth Amendment imposes some limitations on sentencing procedures, Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (plurality opinion); Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 1255, 92 L.Ed.2d 1690 (1948). But, except as Congress chooses to provide for jury decision-making, see, e.g., Fed.R.Crim.P. 31(e) (authorizing special jury verdict as to extent of interest or property subject to forfeiture), ³ the fact-finding necessary for sentencing is the responsibility of the sentencing judge, save in those rare situations where the degree of the offense, and the consequent maximum penalty, turns on a factual issue requiring jury consideration. See, e.g., United States v. Sobell, 314 F.2d 314, 329 & n. 12 (2d Cir.), cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077 (1963); United States v. Kramer, 289 F.2d 909, 920-21 (2d Cir.1961); but see Jackson v. United States, 221 F.2d 883, 885 (D.C.Cir.1955). The numerous decisions entitling a defendant to an opportunity to contest disputed factual matters relevant to sentencing implicitly and properly assume that, once the jury has determined guilt on a particular offense, the sentencing function may constitutionally be discharged solely by the trial judge. See, e.g., Mempa v. Rhay, 389 U.S. 128, 134-35, 88 S.Ct. 254, 256-57, 19 L.Ed.2d 336 (1967); United States v. Woody, 567 F.2d 1353, 1361-62 (5th Cir.), cert. denied, 436 U.S. 908, 98 S.Ct. 2241, 56 L.Ed.2d 406 (1978); United States v. Stassi, 544 F.2d 579, 583-84 (2d Cir.1976), cert. denied, 430 U.S. 907, 97 S.Ct. 1177, 51 L.Ed.2d 582 (1977); Raulerson v. Wainwright, 508 F.Supp. 381, 384 (M.D.Fla.1980).

We reject the premise of defendant's argument that a sentencing provision with characteristics similar to that of a civil judgment is subject to the requirements of a civil adjudication. So long as the restitution provision is a permissible form of punishment, it is not subject to civil requirements simply because it also achieves some of the purposes of a civil judgment. Restitution undoubtedly serves traditional purposes of punishment. The prospect of having to make restitution adds to the deterrent effect of imprisonment and fines, penalties that might seem to some offenders less likely to be imposed than restitution. Restoring the victim's property also serves the legitimate penal purpose of vindicating society's interest in peaceful retribution. Finally, restitution can be a useful step toward rehabilitation, a consequence specifically emphasized by Congress. See S.Rep. No. 97-532, 97th Cong., 2d Sess. 32, reprinted in 1982 U.S.Code Cong. & Ad.News 2515, 2538 ("Senate Report"). These penal purposes have long been promoted through the imposition of fines payable to the Treasury; their achievement is not lessened because the immediate beneficiary of a restitution order is the crime victim.

In any event, a restitution order differs in significant...