U.S. v. Graham

• Decision Date: 14 June 2011
• Docket Number: No. 08–14736.,08–14736.
• Citation: 22 Fla. L. Weekly Fed. C 2160,643 F.3d 885
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Riley GRAHAM, a.k.a. Riley Williams, Defendant–Appellant.

643 F.3d 885

22 Fla. L. Weekly Fed. C 2160

UNITED STATES of America, Plaintiff–Appellee,

v.Riley GRAHAM, a.k.a. Riley Williams, Defendant–Appellant.

No. 08–14736.

United States Court of Appeals, Eleventh Circuit.

June 14, 2011.

Scott Patrick Semrau (Court–Appointed), The Law Offices of Scott Patrick Semrau, Marietta, GA, for Defendant–Appellant.Steven D. Grimberg, Lawrence R. Sommerfeld, U.S. Atty., J. Elizabeth McBath, Asst. U.S. Atty., Atlanta, GA, for Plaintiff–Appellee.Appeal from the United States District Court for the Northern District of Georgia.Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.CARNES, Circuit Judge:

Riley Graham was indicted along with seventeen other people in a mortgage fraud case.¹ He was tried separately from his co-defendants because he insisted on proceeding pro se—at least until the very day his trial began. After a four-day trial, at which he was represented by counsel, a jury returned a guilty verdict on all counts, and he was convicted. His appeal was consolidated with his co-defendants' appeals. See Fed. R.App. P. 3(b)(2). We are issuing this separate opinion in Graham's case in order to address the three issues he has raised, which are distinct from the issues his co-defendants have raised.

I.

The jury's guilty verdict against Graham was on all of the offenses charged against him in the third superseding indictment: conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 371 and 1343 (count 15); wire fraud in violation of 18 U.S.C. §§ 1343 and 2 (counts 16–18, 46 & 47); conspiracy to commit mail fraud, to commit wire fraud, to make false credit applications, to launder money, and to engage in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. §§ 371, 1341, 1343, 1014, 1956(a)(1)(A)(i) & (B)(i), and 1957 (count 19); mail fraud in violation of 18 U.S.C. § 1341 and 2 (count 38); engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. §§ 1957 and 2 (counts 85–90 & 94); and money laundering in violation of 18 U.S.C. §§ 1956(a)(1), (A)(i), & (B)(i) and 2 (counts 179 & 180). Counts 15–18 involved a fraudulently obtained loan from Centrum Financial Services, and the other counts arose from various loans on residential real estate. Graham was convicted and sentenced to 60 months imprisonment on counts 15–19, 46, and 47, running concurrently with a 120–month sentence on the remaining counts, 38, 85–90, 94, 179, and 180, for a total of 120 months.²

Graham challenges his convictions, contending that (1) his right to counsel and due process rights were violated because the district court denied his request for a continuance on the first day of trial; (2) his due process rights were violated because he appeared before the jury in an orange jail suit instead of in street clothes; and (3) his right to a fair trial was violated because the district court admitted “expert” testimony by lay witness William Key, a former closing attorney who had pleaded guilty to participating in fraudulent mortgage transactions.

II.

Graham made his initial appearance in the district court on August 11, 2006, when he pleaded not guilty. On August 23, 2006, Graham told the court he wanted to proceed pro se, and the next day the court appointed Scott Semrau as standby trial counsel for Graham.³ During a September 8, 2006 pre-trial conference, the district court judge emphatically warned Graham about the risks of proceeding pro se and extensively questioned him about his ability to do so. The trial was specially set for August 20, 2007.

In a September 25, 2006 status conference before a magistrate judge, that judge also warned Graham:

Okay. Again, Mr. Graham, you have got good counsel there.

I do encourage you to make use of the resources that have been provided.

And I caution you again about what everybody would caution you about.

It's a mistake to try to represent yourself, but I wish you luck.

Standby counsel Semrau was present at that hearing. On the subject of discovery, Semrau told the magistrate judge:

We received volumes of information from the Government, four CDs or five.

We have copied them, and we are in the process of mailing those to Mr. Graham.

So I agreed to being the middleman to that extent.

And then also to a certain degree there's just things that he can't get to.

And I have agreed to be his eyes and ears, I suppose.

For instance, I think much of the discovery in this case is contained in a room at the Federal Defender's Office; and I have agreed to go in and get an index of that material and provide that to Mr. Graham.

The government told the magistrate judge that “we have made everything available that we have right now.” The judge gave Graham an extension of 30 days to file motions.

In a July 25, 2007 status conference, Graham asked for a continuance because he was having trouble viewing discovery on the CDs that the government had provided. The district court granted the request, continuing the trial to the next available calendar. The district court judge had this exchange with Graham:

THE COURT: Well, what I am telling you, Mr. Graham, is this is just part of your problem which is that you are trying to represent yourself rather than allowing the Court to appoint a lawyer for you.

If we appoint a lawyer for you, that lawyer could get the discovery, could look at it and could tell you what's in there.

And you could make an intelligent decision about what to do about your case.

THE DEFENDANT: I want to proceed to represent myself.

THE COURT: Well, that's a stupid decision.

It's just really foolish, and I am just going to be quite blunt about it.

There's very little I can do to assist you as long as you persist in representing yourself.

The court also had this exchange with standby counsel Semrau:

THE COURT: Mr. Semrau, is there anything you think I could do that would persuade Mr. Graham to refrain from this folly of trying to represent himself?

MR. SEMRAU: No, sir.

I think you have done what I have done, sir, which is explain to Mr. Graham that even a very intelligent person—clearly Mr. Graham is that—benefits from having counsel because counsel adds respectability and can advocate on someone's behalf.

And I think I have explained that, and I can only respect Mr. Graham's decision to do this.

I think he has been in a jury trial before represented by counsel, and apparently that's not what he wants.

So I assume he knows exactly what he is doing. But I have given him the same advice that you have, Judge.

The problems Graham was having viewing discovery were addressed in the next status conference with the district court over four months later on December 6, 2007. Counsel for the government told the court:

The decision was made that since there seemed to be a problem reading it on the computer we made hard copies of everything.

We sent them through Mr. Semrau to Mr. Graham, and that was done several months ago.

And so he should have everything and has had it for a while.

The court once again cautioned Graham about the dangers of representing himself, and Semrau confirmed that he had received the discovery from the government and had delivered it to Graham:

THE COURT: Mr. Graham, are you still insisting upon representing yourself in this matter?

THE DEFENDANT: Yes, Your Honor.

THE COURT: I can't say too strongly how foolish I think that decision is in your case, but we have had this discussion several times. And if you are simply determined to represent yourself even though it would not be in your best interest, I can't stop you. You seem to be a very intelligent, articulate person. You've complied with all my directions. You have not been disruptive. And in the absence of those kind of factors, I can't prevent you from representing yourself.

Although, I will tell you again as I have on numerous other occasions that that's not a good decision. It's a very, very bad decision.

What do you have to say to that?

THE DEFENDANT: Thank you, Your Honor.

THE COURT: Mr. Semrau, have you had any further discussions with Mr. Graham about how he intends to proceed as far as representing himself in this case?

MR. SEMRAU: No, sir, I haven't, not since our last meeting. [Government counsel] indicated I got discovery from her.

I did that. I haven't actually heard from Mr. Graham since I delivered discovery to him. But I understand he's got some questions for me, and I think he is going to call me. I have a phone number at my office that people who are in custody can call collect. So Mr. Graham has that ability to call me collect, and I can go visit him.

So I will continue to counsel with him. No, I haven't had any discussions with him, Judge.

Also at the December status conference, the court proposed a January 2008 trial date, and Graham once again sought to delay the proceedings, asking for a February date instead. The court once again accommodated Graham and set the trial for February 4, 2008. Graham assured the court, “I will be ready anytime in February.” And once again, the court warned him:

THE COURT: Now, do you understand you have got the right to represent yourself or you have got the right to have a lawyer appointed for you; you don't have the right to both?

So if you still intend to represent yourself, when we start the trial Mr. Semrau is going to be gone.

He is not going to be here.

THE DEFENDANT: I understand that.

THE COURT: And you may well encounter situations where you may think you need the benefit of trained legal counsel. There's not going to be anybody here for you.

THE DEFENDANT: I understand that, Your Honor.

THE COURT: He is going to be gone. He is going to stay in the case as standby counsel in the hope that you will change your mind and allow him to represent you. But once we start the trial, you are going to be on your own and it'll be too late to change your mind then.

You understand that?

THE DEFENDANT: Yes, sir.

And yet again:

THE COURT:...