U.S. v. Modena

• Citation: 302 F.3d 626
• Decision Date: 09 September 2002
• Docket Number: No. 00-2477.,00-2477.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael John MODENA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

302 F.3d 626

UNITED STATES of America, Plaintiff-Appellee, v. Michael John MODENA, Defendant-Appellant.

No. 00-2477.

United States Court of Appeals, Sixth Circuit.

Argued: June 21, 2002.

Decided and Filed: September 9, 2002.

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Donald A. Davis, Assistant United States Attorney (argued and briefed), Grand Rapids, MI, for Plaintiff-Appellee.

Paul L. Nelson (argued and briefed), Federal Public Defender's Office, Grand Rapids, MI, for Defendant-Appellant.

Michael John Modena, Lisbon, OH, pro se.

Before CLAY and GILMAN, Circuit Judges; HAYNES, District Judge.^*

OPINION

GILMAN, Circuit Judge.

Michael John Modena was convicted of conspiracy to defraud the United States because of his participation in a tax-evasion scheme. He now appeals his conviction and sentence, arguing that (1) the district court failed to properly determine whether he knowingly and voluntarily waived his right to counsel, (2) the government improperly introduced evidence regarding his coconspirators' convictions, (3) the government presented inadmissible summaries of the evidence, (4) the government engaged in prosecutorial misconduct, and (5) the district court imposed unjustified special conditions on his term of supervised release. For the reasons set forth below, we AFFIRM Modena's conviction, VACATE his sentence, and REMAND the case for resentencing.

I. BACKGROUND

This case arises from the efforts of five brothers to avoid paying federal income taxes. These men, Denver Lee Russell, Orval Dean Russell, Timothy Patrick Russell, Daniel Thomas Russell, and Jack Allen Russell (referred to collectively as the Russell Brothers), purchased sham trusts that they used to hide their income. Modena helped set up and administer several of these trusts.

In April of 1999, a federal grand jury returned a 26-count indictment against the Russell Brothers and Modena. Count 1 charged all of the defendants with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. The remaining counts charged only the Russell Brothers with failure to file income tax returns and income tax evasion, in violation of 26 U.S.C. §§ 7203 and 7201, respectively. In September of 1999, the Russell Brothers were convicted on all counts. Modena, however, evaded arrest until June of 2000. His case was set for trial in the United States District Court for the Western District of Michigan shortly after his arrest.

At the initial pretrial conference, Modena informed the magistrate judge that he wished to proceed pro se. The magistrate judge then asked Modena a series of questions to ensure that he understood the consequences of his decision to represent himself. Modena indicated that he understood the difficulties involved in self-representation, but wished to do so anyway. Based upon Modena's answers and demeanor, the magistrate judge concluded that Modena "knowingly and voluntarily waived his right to counsel." The magistrate judge nevertheless appointed the Federal Public Defender to serve as standby counsel in the event that Modena changed his mind.

Five days later, Modena sent a letter to the district court requesting that counsel be appointed on his behalf. But he withdrew this request in a subsequent letter that he sent to the district court three days thereafter. At the final pretrial conference before the district court, Modena again stated his desire to represent himself. The district court therefore permitted him to do so without further inquiry.

Modena was tried before a jury in August of 2000. To establish Modena's guilt on the conspiracy count, the government called 30 witnesses and offered more than 200 exhibits. Modena sat silent throughout the entire trial, raising no objections and presenting no defense on his own behalf. After a three-day trial, the jury found Modena guilty on the conspiracy count.

Modena then sent a letter to the district court requesting that he receive the assistance "of a more qualified attorney in tax related matters" during the sentencing proceedings. While waiting for a response from the district court, Modena was asked to participate in an interview with a presentence investigator. Modena declined, explaining that he would not participate in the interview without the assistance of counsel. In response, the investigator claimed that Modena had already declined to have appointed counsel present, and therefore no longer had the right to counsel. Modena still refused to participate in the interview. The presentence investigation report (PSR) was thus prepared without his input. Modena later received a letter from the district court informing him that the Federal Public Defender had already been appointed to provide any assistance that he might need.

At the sentencing hearing, the district court sentenced Modena to 60 months in prison, followed by 3 years of supervised release. The district court later issued its sentencing order, which added special conditions to Modena's term of supervised release. Specifically, the order provided that Modena must receive testing and treatment for alcohol and drug abuse and abstain from the use of alcoholic beverages. Modena now appeals his conviction and sentence.

II. ANALYSIS

A. Waiver of counsel

Modena contends that the district court erred in concluding that he knowingly and voluntarily waived his right to counsel, a right guaranteed by the Sixth Amendment to the United States Constitution. He presents this argument for the first time on appeal, however, and must therefore establish that the district court committed plain error in making that determination. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998) ("Where, as here, a criminal defendant has failed to object below, he or she must demonstrate that the error was plain as defined by Fed. R.Crim.P. 52(b) before we may exercise our discretion to correct the error.") (footnote omitted). "To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected [the] defendant's substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Schulte, 264 F.3d 656, 660 (6th Cir.2001).

We must first decide whether the district court properly determined that Modena had waived his right to counsel. This court has held that, before allowing a criminal defendant to represent himself, a district court must conduct a colloquy substantially similar to the one set forth in the Bench Book for United States District Judges. United States v. McDowell, 814 F.2d 245, 250 (6th Cir.1987). The required colloquy consists of several questions and statements that are designed to gauge the defendant's understanding of the legal proceedings, to assess his willingness to bear the consequences of proceeding pro se, and to urge him to accept the assistance of appointed counsel. Id. at 251-52. This court also requires the district court to make an express finding that the defendant has knowingly and voluntarily waived his right to counsel under the Sixth Amendment. Id. at 250. In the present case, Modena concedes that the magistrate judge conducted the required colloquy and concluded that Modena knowingly and voluntarily waived his right to counsel. He maintains, however, that the district court had an obligation to conduct the waiver-of-counsel proceeding a second time after Modena had expressed doubts about representing himself prior to trial.

We disagree. A magistrate judge is authorized by statute to determine whether a criminal defendant has effectively waived the right to counsel. 28 U.S.C. § 636(b)(1)(a) ("[A] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court...."). The magistrate judge in the present case exercised that authority and followed the procedures required by this court in doing so. Although Modena had an interim change of heart regarding his decision to proceed pro se, he ultimately gave the district court no reason to suspect that he was uncertain about representing himself. Specifically, he sent the district court a letter explicitly withdrawing his earlier request to be represented by appointed counsel and, at the final pretrial conference, reiterated his desire to proceed pro se.

Modena gives no compelling reason why we should break new ground by requiring that a district court reevaluate a magistrate judge's acceptance of the defendant's waiver of counsel solely because the defendant at one point had second thoughts about representing himself. To require such a reconsideration would defeat one of the key purposes of the Magistrates Act; namely, the conservation of judicial resources. See Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991) (recognizing that "[t]his duplication of time and effort [by a district court and a magistrate judge] wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act"). The district court, therefore, did not commit any error, plain or otherwise, in accepting Modena's waiver of his right to counsel.

B. Coconspirators' convictions

Modena next maintains that the admission of testimony regarding the convictions of his coconspirators, the Russell Brothers, deprived him of a fair trial. During direct examination, the prosecutor questioned Daniel Russell as to whether he and his brothers had been convicted of conspiracy. The questioning went as follows:

Q. You were on trial in this courtroom last year in August, were you not?

A. Yes, I was.

Q. And you were convicted of the five individual counts against you as well as the conspiracy count, were you not?

A. Yeah.

Q. And your brothers were likewise convicted of the same counts?

A. Yes, sir.

Modena did not object to the government's line of questioning, so we are limited to the...