U.S. v. Chavis

• Decision Date: 29 August 2006
• Docket Number: No. 05-6001.,05-6001.
• Citation: 461 F.3d 1201
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan Louis CHAVIS, a/k/a Louis Allen, a/k/a John Lawrence, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

461 F.3d 1201

UNITED STATES of America, Plaintiff-Appellee, v. Alan Louis CHAVIS, a/k/a Louis Allen, a/k/a John Lawrence, Defendant-Appellant.

No. 05-6001.

United States Court of Appeals, Tenth Circuit.

August 29, 2006.

COPYRIGHT MATERIAL OMITTED

Bill Zuhdi, Oklahoma City, OK, for Defendant-Appellant.

James F. Robinson, Assistant United States Attorney, (John C. Richter, United States Attorney, on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

Before TACHA, HOLLOWAY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Alan Louis Chavis appeals his convictions in the United States District Court for the Western District of Oklahoma on 11 counts of mail fraud, see 18 U.S.C. § 1341, and one count of conspiracy to commit mail fraud, see id. § 371. He contends that (1) the district court denied him his right to counsel, (2) there was insufficient evidence to sustain his convictions, (3) the district court erroneously refused to give a good-faith instruction to the jury, and (4) the district court erroneously sentenced him under the mandatory Sentencing Guidelines scheme. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Mr. Chavis, using the aliases Louis Allen and John Lawrence, conducted an envelope-stuffing scheme that operated like chain mail. Under the scheme, newspaper advertisements promised employment at home and directed those interested to call a phone number. Those who called ("responders") listened to a recording that asked them to leave their names, addresses, and phone numbers.

Responders who provided their addresses were sent an "introductory" packet, which included a letter from a purported (but nonexistent) company officer or employee, whose photograph was on the letter. There were several versions of the letter. All described the work being offered as stuffing envelopes at home. The letters differed in the announced rate of pay, which ranged from $1.40 to $2.76 for each envelope stuffed. Some of the letters said that the work originated from mail-order companies who needed workers but did not want to pay for the resulting labor costs. "If they hired more employees," those letters explained, "they would have to supervise them, rent more office space, pay more taxes, health insurance, liability insurance, workers' compensation, and all of this involves more paperwork." Aplee. Supp.App. at 60, 75, 76. By using home workers these companies could pay up to $2.76 per envelope stuffed "and still save money." Id. Other versions of the letter stated that workers were needed as part of a company expansion into new markets "and we have literally hundreds of thousands of new customers who need to receive our circulars." Id. at 81, 96. Several versions stated that preaddressed, prestamped envelopes and prefolded circulars would be delivered to the responder's home to be stuffed. All versions of the letter directed responders to mail a registration fee of $25, which would later be doubly or triply refunded.

Those who sent the $25 fee received an acceptance letter notifying them that they had been accepted to stuff envelopes and instructing them to send a self-addressed stamped envelope and $1 for each of five different training shipments. The training materials told the responders to obtain a post office box and voice mail and to place advertisements similar to the ones they had answered. The ads were to include the phone number of a voice mail box, on which the participant was to record a two-minute script. When those who followed these directions ("participants") began receiving responses in their voice mail boxes, they were to send a packet of introductory materials similar to the ones they had received, requesting a $25 registration fee. When the fee was paid, they were to keep half for themselves and to forward the remaining $12.50 to the processing center. Participants made copies of an acceptance letter provided with the training materials and mailed one to each new responder. The letter directed the responder to send money for training materials. The training materials lamely attempted to describe this process as what had been advertised:

As we told you in the last Training and Orientation Shipment, in order to generate the Customer Response Envelopes you will be processing, you will place classified ads in publications anywhere in the United States. When the customers respond, these envelopes (pre-addressed and stamped) are sent directly to you at the mailing address you have selected. You stuff them with your pre-folded, free details circulars/application and seal them. You mail your completed envelopes. Next, the resulting cash remittances are sent directly to you for processing. Again, you will stuff an envelope with a Notice of Acceptance, which tells them that their paperwork has been received and is being processed.

Aplee. Supp.App. at 89 (second and third emphasis added).

A few participants moved up in the operation, acting as processing centers. Jacqueline Earls, at the direction of "Louis Allen,"continued working as a participant but also received the $12.50 checks remitted by other participants, who had kept half of each $25 application fee as their share. Retaining $5 for herself from each check, she deposited the remainder into a bank account from which "Allen" made withdrawals. She testified that she never sent envelopes to be stuffed to any of the applicants but was merely increasing the number of newspaper ads being placed. She eventually pleaded guilty to mail fraud.

Tamara Briscoe performed similar functions and spoke with "Mr. Allen" nearly every day. She ran ads, mailed out different versions of introductory letters describing the work either as stuffing envelopes for mail-order companies or as helping the business expand into new markets, and received applications and money for training materials. She opened one bank account at "Mr. Allen's" direction and forwarded to him an ATM card. She deposited into this account $7.50 of each $12.50 check she received from participants; she kept the remaining $5 for herself. Also, at "Mr. Allen's" direction she opened a second bank account from which she made refunds. She eventually pleaded guilty to mail fraud.

Using the aliases Louis Allen and John Lawrence, Mr. Chavis also hired secretarial services to make bank deposits, to receive his mail, and to prepare documents to be mailed. Sonja Patillo testified that she was hired by such a service to collect the dollar bills responders sent in for the training materials. She also mailed training materials to responders in the self-addressed stamped envelopes they had provided, answered phone calls from responders, and tried "to appease them in some way" if they were unhappy with the scheme. Aplt.App. Vol. 1 at 706.

Some responders chose not to participate after receiving the training materials and seeing what the "business" entailed. Some requested refunds.

No envelopes or prefolded circulars were ever delivered to participants. The only items ever "stuffed" were the introductory letters, acceptance letters, and training materials that were mailed to responders and new participants, not materials for mail-order companies who needed workers. Participants were simply recruiting others to send in more money in a classic Ponzi or pyramid scheme. Based on the records seized by postal inspectors from Ms. Briscoe and Ms. Earls, the government created two summary exhibits that calculated the number of applications (and their accompanying $25 checks) they had handled: 17,890 for Ms. Earls and 83,321 for Ms. Briscoe.

Mr. Chavis was arrested in mid-December 2003. The district court appointed June Tyhurst as his counsel on December 24, 2003, but he filed a waiver of counsel on December 31. After a series of hearings regarding his request to proceed pro se, the court granted the request on February 12, 2004. Although initially proposing that Ms. Tyhurst be cocounsel, the court appointed her as standby counsel. Several months later, on June 16, 2004, Gary Cantrell entered an appearance as Mr. Chavis's cocounsel and the court permitted Ms. Tyhurst to withdraw. Within a month, however, Mr. Cantrell filed a motion to withdraw as cocounsel; the court granted the request on August 23, 2004, and reappointed Ms. Tyhurst as standby counsel.

At trial the government called 28 witnesses, including Ms. Earls and Ms. Briscoe; six participants who had placed ads, received applications with $25 checks, and forwarded half the proceeds to a processing center; nine responders who declined to participate further after sending the $25 registration fee or an additional $5 for training materials; five people who provided secretarial services to Mr. Chavis; and one John Lawrence, whose name and social security number Mr. Chavis had misappropriated as an alias. Mr. Chavis did not testify or call any witnesses. The jury delivered guilty verdicts on all counts. Mr. Chavis did not object to the findings in the presentence report, and the district court sentenced him to concurrent terms of 60 months' imprisonment on the conspiracy count and 292 months' imprisonment on the mail-fraud counts.

II. DISCUSSION

A. Denial of Counsel

Mr. Chavis contends that the district court violated his right to counsel by permitting Mr. Cantrell to withdraw. In his brief on appeal Mr. Chavis argued that he had a right to cocounsel. At oral argument, however, Mr. Chavis's attorney conceded that Mr. Chavis had no such right. See United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir.1995) ("[I]t is certainly true that there is no constitutional right to a hybrid form of representation."); United States v. Hill, 526 F.2d 1019, 1025 (10th Cir.1975) ("The Sixth Amendment does not give any indication that hybrid representation is a right of constitutional dimensions.... [And] no statutory right of hybrid representation is accorded."). Instead, he argued that Mr. Chavis had relinquished his right to proceed pro se...