US v. Kosmel, 00-4294
| Decision Date | 05 December 2001 |
| Docket Number | No. 00-4294,00-4294 |
| Citation | 272 F.3d 501 |
| Parties | (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Roman Kosmel, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Central District of Illinois. No. 99 CR 40088Joe B. McDade, Chief Judge.
Before Flaum, Chief Judge, and Posner and Diane P. Wood, Circuit Judges.
Appellant Roman Kosmel represented himself during his criminal trial for unlawfully harboring illegal aliens, encouraging aliens to reside unlawfully in the United States, engaging in a pattern of unlawfully hiring aliens, money laundering, and engaging in transactions with criminally derived funds. Kosmel now claims that his choice to proceed pro se was not knowing and intelligent. Kosmel also appeals several sentencing rulings following the jury's conviction. For the reasons stated herein, we affirm Kosmel's conviction, but remand the case for resentencing.
Kosmel, a Czech citizen, entered the United States as a tourist in April 1996. Although authorized to remain in the country only until October 2, 1996, Kosmel stayed beyond the expiration of his visa and worked as a janitor for Uni versal Maintenance, Inc. ("Universal"). Universal provided cleaning services for Jewel Food Stores throughout Illinois. During his tenure as a Universal employee, Kosmel and his wife deposited into their personal savings account the paychecks of other Czech citizens unlawfully employed by Universal. During a ten-month period, Kosmel deposited 63 checks, totaling $52,419.
Kosmel must have performed admirably at Universal because in November 1997, Universal's owner encouraged him to incorporate a floor-cleaning business called Roman Services, Inc. ("Roman"). Universal then subcontracted with Roman, which assumed responsibility for cleaning seven Jewel stores in the Quad Cities area and in Springfield, Illinois. Between November 1997 and October 1999, Roman employed approximately 40 citizens of the Czech Republic who were not authorized to work in the United States. Universal paid Roman $15,000 per month to perform the cleaning services, and Roman paid its Czech employees from these funds.
Kosmel hired his illegal employees by following a general pattern.1 Czech nationals arrived in the United States and obtained class B-2 visas.2 Czech- speaking individuals already residing in the United States then contacted the new arrivals and arranged transportation to meet Kosmel, who transported them to apartments in the Quad Cities and Springfield, Illinois. Kosmel hired the Czechs to work at Roman, paid them near minimum wage for their services, and deducted amounts for rent and occasional use of an automobile. Kosmel also became a frequent visitor to the local Social Security office, where he translated documents for his employees, filled out papers and showed office personnel their passports. While most employees received a Social Security card that read "not valid for employment," Kosmel later removed this language in an attempt to "take care of" his new employees' paperwork.
A brief example illustrates Kosmel's scheme. Jaromir Tenev arrived in Atlanta on November 19, 1998, and obtained a class B-2 visitor visa. Soon after arriving in Atlanta, a Czech-speaking man approached Tenev, offered him a janitorial job, and arranged for Tenev to travel by bus to Davenport, Iowa, all for a $500 fee. In Davenport, Tenev met Kosmel, who allowed Tenev to stay in an apartment in Silvis, Illinois. Kosmel also informed Tenev that he could arrange documentation that would allow Tenev to work lawfully in the United States. Tenev gave Kosmel his visa, and Kosmel hired Tenev to work for Roman. Tenev earned $40 per night cleaning floors at Jewel, minus deductions for rent and other incidentals.
Kosmel opened two commercial checking accounts to conduct the financial business of Roman, one under the name "Cleaning Services, Inc." and the other under "Roman Service, Inc." Over a two- year period, Kosmel deposited 42 checks totaling $344,262 in both accounts. From these accounts, Kosmel paid a total of $107,238.50 in wages to his 40 Czech employees. Included within this amount were checks for $3,386 (drawn on the Cleaning Services account and paid to Marek Vencl) and $1,230 (drawn on the same account and issued to Petr Krhovkjak). Kosmel also used the two commercial checking accounts to make rent payments totaling $14,643 to three different landlords who owned the apartments where Kosmel stashed his Czech employees.
Kosmel did not limit his activity to the cleaning business. During his time in the Quad Cities, Kosmel arranged for several Czech women to perform as topless dancers at a local nightclub. Kosmel extorted the women, demanding between 20-40% of their earnings, plus additional compensation for airline tickets, visa "assistance," and his personal invitation to travel to the United States.
In late 1998, Kosmel became concerned about his own immigration status. Kosmel approached his neighbor's daughter, Colleen Davis, and asked her to participate in a sham marriage. In exchange for $10,500, Davis consented to marry Kosmel so he could "become a citizen" and remain in the country. The scheme unfolded as planned--Kosmel married Davis, paid her $3,500 in cash, and submitted petitions to the Immigration and Naturalization Service for a change in immigration status. Soon thereafter, the government indicted Kosmel.
In October 1999, the district court appointed the Federal Defender's office to represent Kosmel. After a brief period, Kosmel became dissatisfied, complained to the district court, and asked to proceed pro se. The district court convened a hearing, at which Kosmel changed his mind about self- representation and instead requested new counsel. Kosmel's existing attorney explained to the court that Kosmel wanted to present fraudulent immigration documents to the jury. When the federal defender refused to go along, Kosmel initially asked to proceed pro se, but a stern admonishment from the district court led Kosmel to try his luck with another lawyer.
The district court appointed substitute counsel, and the case proceeded to trial. The court selected and impaneled a jury, gave preliminary instructions, and asked if counsel needed to resolve any remaining issues prior to opening statements. At that point, Kosmel indicated through his attorney that he wanted to participate in his own defense by questioning some witnesses at trial. The district court rejected that request and stated:
It doesn't work that way. You either represent yourself or you have an attorney represent you. You can't have it both ways. You can't represent yourself for some reasons and then let the attorney do the other things. It doesn't work that way. It's got to be one or the other. If you choose to represent yourself, I would appoint standby counsel, which means he's there to advise you.
Kosmel decided that self-representation was the way to proceed. Following a brief recess, the district judge ascertained whether Kosmel's Sixth Amendment waiver was knowing and voluntary. The district court (again) warned Kosmel about the dangers associated with self- representation. The court also instructed that Kosmel could not change his mind if he later believed self-representation was a mistake. At that point, Kosmel's attorney relayed his client's request and asked whether it was possible to continue as counsel, ". . . but should [Kosmel] decide at some point during the trial he wants to take over the case, that he could take over at that point." The court again refused and responded:
No. If you need more time to think about this I'll give you more time, but we're going to make one decision. We're not going to have this where, okay, Judge, I want to do it, but I want to wait and see how things are going and then test the waters, and then if things are going the way I think it is, then I may want you to do it. I think you've got to decide whether or not you want to do it or you want your attorney to do it.
The district court gave Kosmel until the next day to decide, at which time Kosmel elected to represent himself. The district court appointed standby counsel to assist Kosmel. The jury ultimately convicted Kosmel on nine counts, including unlawfully harboring aliens, encouraging aliens to reside unlawfully in the United States, engaging in a pattern of unlawfully hiring aliens, money laundering, and unlawfully hiring aliens, money laundering and marriage fraud.
Kosmel also represented himself during the sentencing hearing, where he filed several objections, three of which are relevant to this appeal. First, Kosmel objected to the use of the money laundering guideline because his true criminal conduct was harboring illegal aliens. Second, Kosmel objected to the amount of money that he could be accountable for laundering. Third, Kosmel objected to the addition of 2 points for obstruction of justice. In issuing this last enhancement, the district court ruled that Kosmel provided materially false information to the interviewing probation officer regarding how much money he earned conducting the scheme. The district court credited the testimony of the probation officer's supervisor, who testified because a blizzard prevented Kosmel's probation officer from traveling on the day of the sentencing hearing. The district court sentenced Kosmel to 79 months imprisonment with three years supervised release. Kosmel appeals.
We review de novo the district court's finding of a waiver of the right to counsel. United States v. Altier, 91 F.3d 953, 955 (7th Cir. 1996). Further, in all sentencing disputes, we review the district court's findings of fact for clear error and legal conclusions de novo. See United States v. Brown, 71 F.3d 1352,...
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