Williams: Defendant Forfeited Issue on Appeal re: Whether the Denial of Right to Self-Representation Automatically Renders Guilty Plea Involuntary

In United States v. Williams, Case No. 18-13890 (Mar. 30, 2022) (Jordan, Jill Pryor, Tjoflat), the Court affirmed the district court because it found that Mr. Williams had forfeited any arguments under which the Court could grant relief on appeal.  

Mr. Williams, a sovereign citizen, wanted to represent himself before the district court.  The district court held a Faretta hearing and denied Mr. Williams's request.  Mr. Williams subsequently pleaded guilty, with the assistance of counsel, and was sentenced to 151 months imprisonment.  

Mr. Williams was then assigned a new attorney on appeal.  This attorney moved to withdraw as counsel pursuant to Anders v. California, which the Court denied two times, finding at least two issues of arguable merit: (1) whether, despite later pleading guilty, the Court has discretion to review the denial of a defendant's request to proceed pro se, which is a potential structural error and, if so, (2) whether the district court erred in denying Williams's request to proceed pro se because it believed that he did not understand the risks of proceeding pro se due to his illogical legal theories.  The appellate brief failed to meaningfully address whether the guilty plea precluded the Court from addressing the Faretta issue.  As to that issue, the government noted a circuit split, with the 9th Circuit holding that an improper denial of a defendant's request for self-representation renders any subsequent guilty plea per se involuntary, thereby voiding it; and the 4th, 7th, 8th, and 10th Circuits holding that an improper denial of the right to self-representation does not render a subsequent guilty plea involuntary, so the subsequent guilty plea waives the right to appeal the improper denial.      

The Court noted that though the improper denial of the right to self-representation is structural error--which would have required reversal--it could not reach that issue because Mr. Williams's appellate counsel had failed to address the preliminary issue of what effect Mr. Williams's guilty plea had on his ability to raise that challenge.  That is, appellate counsel's failure to raise a challenge to the voluntariness of Mr. Williams's guilty plea in his initial brief forfeited the issue on appeal.  And, as a result, the Court found that it could not address the circuit split, nor the merits of the Faretta claim.  

The Court noted that, while under Campbell, it had the discretion to revive a forfeited issue, it was choosing not to here: "Even assuming that we have the discretion to revive the forfeited issue here, we cannot say that it would be appropriate to exercise our discretion and so decline to raise the voluntariness issue sua sponte."  

Said: Violation of Fla. Stat. 893.13(6)(a) Overbroad With Regard to Controlled Substance Definition

In Said v. U.S. Att'y Gen., 21-12917 (Mar. 24, 2022) (Jordan, Newsom, Tjoflat), the Court held that a violation of Fla. Stat. § 893.13(6)(a)--the Florida marijuana possession statute--did not relate to a controlled substance, as defined in 21 U.S.C. § 802, and thus did not prevent Mr. Said from accruing the necessary seven-year period of continuous residence for his application for cancellation of removal.  As such, the Court found that the BIA and IJ erred in finding that Said was ineligible for cancellation of removal.    

The Court reasoned that by the plain language of Fla. Stat. § 893.02(3), not all substances that it proscribes are federally controlled.  Section 893.02(3) includes “all parts” of the marijuana plant, while federal law does not.  For instance, federal law does not include the mature stalks of the marijuana plant or fiber produced from such stalks.  21 U.S.C. § 802(16).  This is a significant divergence, and on its own, is sufficient to establish a realistic probability of broader prosecution under Florida law.  The Court distinguished its opinion from Chamu, where petitioner presented a hypothetical form of cocaine covered by state, but not federal law, to attempt to establish overbreadth.  Here, because the stalks of the marijuana plant do exist, it cannot be argued that Florida law just uses different terminology to describe the same substance proscribed by federal law.  The Court declined to ignore the statutory text and construct a narrower statute than the plain language supports.  

Lee: 18 U.S.C. 2251(a) and 2251(d) are Separate Offenses for Double Jeopardy

In United States v. Lee, 20-13505 (Mar. 21, 2022) (Lagoa, Brasher, Tjoflat), the Court affirmed the defendant’s conviction under 18 U.S.C. 2251(a) over a double jeopardy challenge.

The defendant sent text messages to a minor requesting sexually explicit images.  The defendant was originally charged with violating 2251(d), and a jury convicted him.  Shortly thereafter, however, the Eleventh Circuit in Caniff clarified that such conduct does not violate 2251(d), and the district court granted a judgment of acquittal.  Based on the same conduct, the government brought a new indictment, charging the defendant with violating 2251(a), and the defendant moved to dismiss on double jeopardy grounds.  The Eleventh Circuit held that the district court correctly denied the motion because 2251(a) and 2251(d) are distinct offenses with different elements.  2251(d) requires proof that the defendant made a notice or advertisement involving a sexually explicit depiction of a minor, whereas 2251(a) requires proof that the defendant arranged for a minor to engage in sexually explicit conduct for the purpose of creating a depiction of that conduct.  Because there were scenarios where a defendant could violate 2251(d) but not 2251(a), and vice versa, they were not the same offense for double jeopardy purposes.

Howard: Affirming Convictions in Tricare Kickback Case, But Reversing Sentence as Too Lenient

In United States v. Howard, Case No. 18-11602 (Mar. 7, 2022) (Branch, Luck, Ed Carnes), the Court affirmed in part, and vacated and remanded in part, a case involving Tricare, a government program that provides health care insurance benefits for active and retired members of the military and their families.  

This case involved the actions of Nicole Bramwell, a physician, Larry Howard, a pharmacist, and Raymond Stone, a retired Navy veteran.  They were convicted of crimes involving the millions of dollars Tricare paid Howard for filling compounded cream prescriptions for patients.  Bramwell wrote the prescriptions and Stone helped to recruit patients.  All three were convicted for paying or receiving kickbacks and conspiring to do so, in violation of 18 U.S.C. § 371, 42 U.S.C. § 1320a-7b(b)(1)(A), and 42 U.S.C. § 1320a-7b(b)(2)(A).  Howard was also convicted of laundering some of the proceeds, in violation of 18 U.S.C. § 1957.  Howard was sentenced to 160 months in prison; Stone to 24 months in prison; and Bramwell to 36 months of probation, with one year to be served in home detention.  

All three challenge their convictions based on the sufficiency of the evidence.  Howard also contends that the government constructively amended his indictment.  The government cross-appealed, contending that Bramwell's sentence was unreasonably lenient.  

As to the sufficiency of the evidence challenges, the Court first noted that it did not matter whether the prescriptions involved were legitimate or medically necessary or good or bad for the patients, because the substantive kickback convictions were based entirely on whether there were kickbacks paid.  Additionally, the conspiracy convictions could be sustained based solely upon evidence sufficient to support the kickback conspiracy without regard to any evidence of fraud.  The Court also reaffirmed that in a case alleging multiple objects of the conspiracy, only one of those objects needs to be proven to support the conspiracy conviction.  With that in mind, the Court found the evidence sufficient to support all convictions.   

As to the constructive amendment argument, Count 4 charged Howard with paying one $5000 kickback to Bramwell on a specific date, but the government presented evidence that he wrote two different $5000 checks to her on that date.  Howard argued that the evidence presented at trial constructively amended the indictment.  The Court disagreed.  Evidence that there were two $5000 checks did not alter the essential elements of the offense charged because the amount of the kickback paid was not an element of the offense.  

As to the government's cross-appeal of Bramwell's sentence of probation, the Court agreed with the government that the sentence was substantively unreasonable.  The PSI calculated an advisory Guidelines' range of 78 to 97 months imprisonment for Bramwell.  But at sentencing, the district court characterized Bramwell as something of a victim of Howard, and after extensively considering the § 3553 factors, varied downwards to zero months imprisonment.  In reversing the district court, the Court found that the district court had abused its discretion in three ways--failing to afford consideration to relevant factors (seriousness of the offense, the need to promote respect for the law, the need to provide just punishment for the offense, and general deterrence); giving significant weight to an improper factor (loss of professional license, convicted felon status, and the temptation and opportunity to commit the crime); and committing a clear error of judgment in considering proper factors and the weight they were due.  The Court did not find the district court's explanation for its variance sufficiently compelling to support the degree of variance.  As such, the Court vacated and remanded the part of the judgment involving Bramwell's sentence to the district court for further proceedings, with instructions that a sentence of probation is unreasonable.