United States v. Wilson
| Decision Date | 21 April 2022 |
| Docket Number | 21-1099,21-1150 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM I. WILSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before MORITZ, KELLY, and CARSON, Circuit Judges.
In Appeal No. 21-1099, William Wilson appeals the district court's revocation of his supervised release, its imposition of new terms of imprisonment and supervised release, and its rejection of his claims of vindictive prosecution related to those proceedings. Wilson's counsel filed a motion to withdraw, together with a brief under Anders v. California, 386 U.S. 738 (1967) based on counsel's assessment that any argument on appeal would be frivolous. We agree, grant counsel's motion to withdraw, and dismiss the appeal.
In Appeal No. 21-1150, Wilson proceeds pro se and appeals the district court's denial of his motion to modify his prison sentence so he could serve it at home. Wilson's opening brief in No. 21-1150 does not address the district court's order, which we affirm.
A federal jury convicted Wilson in 2010 "on multiple counts of bank fraud, aggravated identify theft, fraudulent use of a Social Security number, and fraud in connection with an access device." United States v. Wilson, 503 Fed.Appx. 598, 600 (10th Cir. 2012). The district court sentenced him to ten years' imprisonment followed by five years of supervised release. The terms of supervised release imposed by the district court at the time of Wilson's conviction stated he "shall not commit another federal, state or local crime," prohibited him from "associat[ing] with any person convicted of a felony," required him to provide his probation officer with "truthful and complete" monthly reports along with "access to any requested financial information," and directed him to "follow the instructions of the probation officer," among other things. No. 21-1150, R., vol. I at 126.
Wilson began violating these terms of supervised release immediately upon his release by arranging for a known felon, Sonny Pilcher, to pick him up from prison. Wilson testified that he also arranged for Pilcher to perform post-release banking services for him by taking possession of Wilson's money and periodically sending it back when Wilson asked for it. And Wilson testified that after his release he "help[ed] [Pilcher] hire two attorneys," No. 21-1099, R., vol. IV at 158, "had a lot of correspondence" with Pilcher's attorneys, id. at 86, and received mail from Pilcher.
Beyond his association with Pilcher, Wilson also submitted false and incomplete reports to his probation officer that failed to report various wire transfers and other receipts, and he refused to provide his probation officer with releases to access his bank and credit card accounts.
The government sought revocation of Wilson's supervised release based on these violations. Wilson responded by filing a pro se motion to dismiss the petition for revocation as a vindictive prosecution. The district court held a hearing, struck Wilson's pro se motion because he was represented by counsel and his attorney did not sign it, found Wilson had violated the terms of his supervised release, and sentenced Wilson to 10 months' incarceration to be followed by 46 months of supervised release. The district court imposed several special conditions on Wilson's supervised release, including that he "participate in a program of testing and/or treatment for substance abuse," "submit [his] person[] [and] property . . . to a search conducted by a . . . probation officer," and "participate in a program of cognitive behavioral treatment." Id., vol. I at 253.
Wilson filed a notice of appeal, a pro se motion to modify his prison sentence so he could serve it at home, and a pro se motion to set aside the judgment as the fruit of a vindictive prosecution. The district court denied the two pro se motions because Wilson's counsel did not sign them and because it found the two motions lacked merit. Wilson appealed those denials, resulting in two appeals in this court.
Appeal No. 21-1099 pertains to the district court's entry of the revocation judgment and Wilson's vindictive-prosecution motions. Appeal No. 21-1150 pertains to Wilson's motion to modify his prison sentence. Wilson's attorney in No. 21-1099 filed a motion to withdraw, together with an Anders brief. Wilson responded by filing a pro se opening brief, which we construed as a response to the Anders brief. He also filed pro se briefs in No. 21-1150. The government did not file any response in No. 21-1099, but it did file a response in No. 21-1150. We consider the two appeals seriatim.
If an attorney concludes after conscientiously examining a case that any appeal would be frivolous, the attorney may so advise the court and request permission to withdraw. Anders, 386 U.S. at 744. In conjunction with such a request, counsel must submit a brief highlighting any potentially appealable issues and provide a copy to the defendant. Id. The defendant may then submit a pro se brief. Id. If the court determines that the appeal is frivolous upon careful examination of the record, it may grant the request to withdraw and dismiss the appeal. Id. "On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the [defendant] the assistance of counsel to argue the appeal." Id.
For the reasons that follow, we conclude Appeal No. 21-1099 is frivolous. We therefore grant counsel's motion to withdraw and dismiss the appeal.
Wilson posits the evidence did not support the district court's finding he had violated various terms of his supervised release. Under 18 U.S.C. § 3583(e)(3), a court may "revoke a term of supervised release[] and require the defendant to serve in prison all or part of the term of supervised release . . . if the court . . . finds by a preponderance of the evidence that the defendant violated a condition of supervised release." This court reviews a "district court's decision to revoke supervised release for abuse of discretion." United States v. Jones, 818 F.3d 1091, 1097 (10th Cir. 2016) (internal quotation marks omitted). "A district court abuses its discretion only where it (1) commits legal error, (2) relies on clearly erroneous factual findings, or (3) where no rational basis exists in the evidence to support its ruling." United States v. Englehart, 22 F.4th 1197, 1207 (10th Cir. 2022) (internal quotation marks omitted).
The government alleged Wilson violated the condition of his supervised release requiring him to submit truthful and complete written reports to his probation officer each month. In support of this allegation, it submitted evidence an individual named Jesse McMillan sent Wilson $2, 215 via wire transfers in January and February 2020 and that Wilson failed to include these wires in his monthly cash-flow reports to his probation officer. It also presented evidence Wilson received money from governmental agencies and non-profits that he failed to include on the reports. And it presented evidence Wilson failed to report all his employers and his income from them.
The government further alleged that because Wilson signed his February 2020 report "under penalty [of] perjury" that the cash-flow statement was "true and correct," No. 21-1099, R., vol. IV at 23, he violated 18 U.S.C. § 1001, which criminalizes knowingly making false statements to the government. And it contended that by violating this law, Wilson violated the condition of his supervised release that proscribed committing another crime.
Wilson testified that the wires in question were actually from Pilcher and that they were merely a return of money he had given Pilcher to hold for him. He argues he did not knowingly make any false representation because he thought the forms only asked for inflows of new cash, not his own money being given back, and he did not realize he needed to report assistance from government agencies and non-profits. Regarding his failure to report all his employers, Wilson testified that he only worked for the missing employer for two hours and therefore "didn't think it was a big deal to report this" employer or the resulting income. No. 21-1099, R., vol. IV at 101.
Wilson's version of events fails to explain or account for McMillan's role in wiring money to Wilson. It also conflicts with emails Wilson sent to his probation officer indicating that No. 21-1099, R., vol. IV at 105. And Wilson's claim the wires were a return of funds does not add up because he testified he gave Pilcher $125.57 less than the total of the wires. Considering the record as a whole, the district court did not clearly err by drawing the inference that Wilson knowingly submitted false and incomplete monthly reports. See United States v. Fitzgibbon, 576 F.2d 279, 284 (10th Cir. 1978) ().
The district court also found Wilson violated the condition of his supervised release requiring him to provide access...
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