United States v. Bruce Jones ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1792
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRUCE JONES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cr-00072-TWP-DML-1 — Tanya Walton Pratt, Judge.
____________________
ARGUED SEPTEMBER 8, 2016 — DECIDED DECEMBER 21, 2016
____________________
Before WOOD, Chief Judge, and KANNE and HAMILTON, Cir-
cuit Judges.
HAMILTON, Circuit Judge. This appeal in a criminal case
presents an unusual combination of offenses: health care
fraud and unlawful possession of firearms and ammunition.
Defendant Bruce Jones was both a family counselor and a fire-
arms enthusiast who collected dozens of guns and thousands
of rounds of ammunition. Jones had a prior felony conviction,
2 No. 15-1792
so it was a federal crime for him to possess firearms and am-
munition. The FBI discovered these weapons while investi-
gating Jones for allegedly fraudulent health care billing. A
federal grand jury charged Jones with three counts of pos-
sessing firearms and ammunition in violation of 18 U.S.C.
§ 922(g)(1) and one count of health care fraud in violation of
18 U.S.C. § 1347. The district court bifurcated the case for sep-
arate trials on the firearms charges and the health care fraud
charge. The juries convicted Jones on all counts. The district
court sentenced Jones to 90 months in prison on his fraud con-
viction and 100 months on each felon-in-possession convic-
tion, with all terms to be served concurrently.
Jones appeals and raises four distinct issues. First, he con-
tends that the ex parte pretrial restraint of certain life insurance
policies violated his Fifth and Sixth Amendment rights. Sec-
ond, he argues that the district court erroneously denied his
request for new counsel during his fraud trial. Third, he con-
tends that he was denied the opportunity to testify at his fraud
trial. Fourth, he challenges the court’s sentencing guideline
computation. We affirm in all respects.
I. Pretrial Restraint of Assets
Jones first challenges the pretrial restraint of six life insur-
ance policies titled in his name. The government listed these
policies in a forfeiture allegation in the controlling, second su-
perseding indictment. On April 15, 2014, following Jones’s
conviction on the felon-in-possession charges but before his
fraud trial, the government filed an ex parte application under
28 U.S.C. § 2461(c) and 21 U.S.C. § 853(e)(1)(A) to restrain
those policies in anticipation of post-conviction forfeiture.
The district court entered a restraining order that same day.
Jones contends that the pretrial restraint violated his Sixth
No. 15-1792 3
Amendment right to hire counsel of choice and his Fifth
Amendment right to due process of law.
Ordinarily, we review de novo questions of constitutional
law. See Anderson v. Milwaukee County, 433 F.3d 975, 978 (7th
Cir. 2006). But there is a wrinkle here: Jones did not object at
the time that his life insurance policies were restrained. Nor
did he raise an objection at any point during the district court
proceedings even though the restraining order invited him to
“petition for a pre-trial hearing if he can demonstrate that he
has no other assets available with which to retain counsel” or
if he could show that the restrained policies were “not subject
to forfeiture.” Where a defendant fails to lodge a timely objec-
tion before the district court, we review only for plain error,
assuming the defendant has not actually waived the point.
See United States v. Bickart, 825 F.3d 832, 837 (7th Cir. 2016)
(“To demonstrate plain error, defendants must show: (1) an
error or defect, (2) that is clear or obvious, (3) affecting the
defendants’ substantial rights. Even then, we have discretion
to correct the error if it seriously impugns the fairness, integ-
rity, or public reputation of the judicial proceedings, but we
need not do so.”) (citations omitted).
To excuse his failure to raise this issue in the district court,
Jones argues that the legal landscape shifted while his appeal
was pending, creating an analytical path that was not availa-
ble to him in 2014. Specifically, Jones points to Luis v. United
States, 578 U.S. —, 136 S. Ct. 1083 (2016). In Luis, the Supreme
Court held that the “pretrial restraint of legitimate, untainted
assets needed to retain counsel of choice violates the Sixth
Amendment.” Id. at 1088 (plurality opinion) (emphasis
added); see also id. at 1096 (Thomas, J., concurring in the judg-
4 No. 15-1792
ment) (agreeing with plurality that a “pretrial freeze of un-
tainted assets violates a criminal defendant’s Sixth Amend-
ment right to counsel of choice”). In so holding, the plurality
distinguished two earlier cases in which the Court had found
no Sixth Amendment defect in forfeiture proceedings. Id. at
1090–91 (plurality opinion). Compare Caplin & Drysdale, Chtd.
v. United States, 491 U.S. 617 (1989) (post-conviction forfeiture
that deprived defendant of funds he would have used to pay
attorney did not violate Sixth Amendment because, pursuant
to statute, title to funds vested in United States upon defend-
ant’s commission of crime), with United States v. Monsanto, 491
U.S. 600 (1989) (pretrial restraint that deprived defendant of
tainted assets traceable to crime likewise did not violate Sixth
Amendment).
In Luis, unlike Caplin & Drysdale and Monsanto, the re-
straining order prevented the defendant from using her own
untainted funds to hire counsel. Luis, 136 S. Ct. at 1090 (plu-
rality opinion). The government’s interest in Luis’s untainted
funds was similar to that of an unsecured creditor, who
“someday might collect from a debtor’s general assets” but
“cannot be said to have any present claim to, or interest in, the
debtor’s property.” Id. at 1092. Citing Luis, Jones argues that
the government now bears the burden to demonstrate at the
outset that the assets it wants to restrain are tainted.
Jones may read Luis too expansively. Luis says nothing
about timing or burden shifting. On the contrary, the govern-
ment in that case conceded that the district court had re-
strained untainted funds. Id. at 1088. But even assuming with-
out deciding that Jones’s interpretation of Luis is correct, that
case would have offered Jones at best an additional line of at-
No. 15-1792 5
tack on the district court’s restraining order. Under long-set-
tled circuit law, the pretrial restraint of a defendant’s assets
“without affording the defendant an immediate,
postrestraint, adversary hearing at which the government is
required to prove the likelihood that the restrained assets are
subject to forfeiture violates the due process clause to the ex-
tent that it actually impinges on the defendant’s qualified
sixth amendment right to counsel of choice.” United States v.
Moya-Gomez, 860 F.2d 706, 731 (7th Cir. 1988).1 If the district
court finds that the defendant has insufficient alternative as-
sets with which to pay counsel, but the government fails to
justify its retention of all the frozen assets, “then the court
must order the release of funds in an amount necessary to pay
reasonable attorneys’ fees for counsel of sufficient skill and
experience to handle the particular case.” Id. at 730.
Assuming that Jones’s life insurance policies were not
tainted by his fraud, and assuming further that he genuinely
needed those assets to retain counsel, we cannot understand
why he failed to invoke his right to an immediate hearing un-
der Moya-Gomez. Conversely, if the life insurance policies were
tainted, or if Jones had sufficient alternative assets available
1 Jones argues that a post-restraint hearing is insufficient and that he
should have been afforded a hearing prior to the restraint on his property.
We have twice declined to decide whether a pre-deprivation hearing is
necessary in this context, see United States v. Phillips, 434 F.3d 913, 916 (7th
Cir. 2005) (per curiam); United States v. Kirschenbaum, 156 F.3d 784, 793 (7th
Cir. 1998), and the Supreme Court has likewise declined to decide the
question, see Monsanto, 491 U.S. at 615 n.10. We again decline to consider
the question here. As explained below, Jones has not shown a bona fide
need for the restrained assets. Thus, as in Phillips, this case presents an
“inadequate vehicle by which to consider the issue,” 434 F.3d at 916.
6 No. 15-1792
to him, then Luis would not have strengthened his litigating
position. Either way, we find no plain error.
In addition to a due process argument under Moya-Gomez,
Jones could have presented a statutory argument based on the
language of 21 U.S.C. § 853(e). The overwhelming majority of
courts to consider the question have held that § 853(e) “con-
veys Congress’s intent to authorize the restraint of tainted as-
sets prior to trial, but not the restraint of substitute assets.”
United States v. Parrett, 530 F.3d 422, 431 (6th Cir. 2008); see
also, e.g., United States v. Jarvis, 499 F.3d 1196, 1204 (10th Cir.
2007) (“[A]ll but one federal court of appeals to address the
issue has determined the legislative silence regarding substi-
tute property in § 853(e) precludes pre-conviction restraint of
substitute property.”).
Jones points out that the government’s ex parte motion as-
serted there was probable cause to believe that his life insur-
ance premiums and contributions “constitute or derived from
proceeds obtained from the health care fraud, or represent a
substitute asset, and are therefore subject to forfeiture.” Jones
also notes that the government cited In re Billman, 915 F.2d
916, 921 (4th Cir. 1990), which held that a similar forfeiture
statute, 18 U.S.C. § 1963, authorizes pretrial restraint of sub-
stitute assets. But we have never held as much. No controlling
precedent barred Jones from asking the district court to con-
strue § 853(e) as applying only to tainted assets, an argument
that at least one district court in this circuit has accepted. See
United States v. Toran, No. 13-30072, 2015 WL 1968698, at *7
(C.D. Ill. May 1, 2015).
Thus, Jones could have advanced a constitutional argu-
ment, a statutory argument, or both in response to the re-
No. 15-1792 7
straining order. Any one of these approaches could have de-
livered the same relief he believes he might have obtained un-
der Luis. Jones forfeited his challenge to the restraining order
by failing to object in the district court, so we review that or-
der only for plain error.
We find no plain error. Nothing in the record tends to
show that the life insurance policies were not tainted by
Jones’s fraud. Further, it is unclear whether Jones even needed
the life insurance policies to retain counsel.2 A presentence in-
vestigation report prepared in December 2013 estimated
Jones’s net worth (exclusive of the insurance policies) at over
half a million dollars. Granted, most of that net worth was at-
tributable to real estate, and the government apparently filed
notices of lis pendens against some of Jones’s properties. But a
lis pendens notice does not deprive real estate of all marketable
value; it simply places successors in interest on notice of a po-
tential competing claim. Further, it appears that at least two
of the lis pendens notices were lifted in August 2014, well in
advance of Jones’s fraud trial.
In any event, because Jones never objected to the restraint
on his life insurance policies, the district court had no reason
to probe these matters in an evidentiary hearing. The district
court committed no plain error by entering the pretrial re-
straining order, which invited Jones to challenge it promptly
if he thought there were grounds to do so. Having failed to do
so, Jones is not entitled to relief based on his first argument.
2 It is also unclear whether Jones could have simply liquidated those
policies at will.
8 No. 15-1792
II. Request for Substitute Counsel
Jones next argues that the district court improperly denied
his request for new counsel during his fraud trial, which was
the second of the two. He had an opportunity to explain his
reasons for requesting substitute counsel, so we review the
district court’s denial for abuse of discretion. United States v.
Harris, 394 F.3d 543, 551 (7th Cir. 2005). We consider such fac-
tors as the timeliness of the defendant’s motion, the adequacy
of the district court’s inquiry into the motion, and whether the
conflict resulted in a total lack of communication preventing
an adequate defense. Id. at 552. No single factor is dispositive.
If we find an abuse of discretion, we may nevertheless uphold
the district court’s decision “unless the defendant establishes
that he was deprived of his Sixth Amendment right to effec-
tive assistance of counsel.” United States v. Bjorkman, 270 F.3d
482, 500 (7th Cir. 2001).
The record shows that Jones had a rocky relationship with
his appointed attorney, Mark Inman, who is an experienced
criminal defense lawyer in federal cases. Despite that rocky
relationship, we conclude that the district judge did not abuse
her discretion in denying Jones’s request for substitute coun-
sel. We do not reach the separate question whether Jones’s
Sixth Amendment right was compromised.
Turning to the three factors identified in Harris, we con-
sider first the timeliness of Jones’s request. Jones asked for a
new lawyer three weeks before his fraud trial was scheduled
to begin. Three weeks is not much time to prepare for such a
trial. We assume that if the district court had appointed a new
lawyer an immediate request for a continuance would have
been expected. Even so, we have previously recognized that
requests for new counsel submitted several weeks before a
No. 15-1792 9
critical proceeding may be timely under the circumstances.
Compare United States v. Zillges, 978 F.2d 369, 372 (7th Cir.
1992) (request made one month before trial did not “repre-
sent[] a tactic to secure a continuance on the eve of trial”), and
United States v. Ryals, 512 F.3d 416, 419 (7th Cir. 2008) (request
three weeks before sentencing hearing was timely, particu-
larly where breakdown in communication between attorney
and client did not occur until after trial), with United States v.
Hall, 35 F.3d 310, 313–14 (7th Cir. 1994) (request after defend-
ant pled guilty and just ten days before sentencing hearing
appeared to be an “effort to derail the sentencing that was fast
approaching”), and United States v. Burgos, 539 F.3d 641, 646
(7th Cir. 2008) (request on morning of trial came too late).
The second factor—adequacy of the inquiry—weighs in
the government’s favor. After receiving Jones’s letter, the dis-
trict judge referred the matter to a magistrate judge for a hear-
ing. During that hearing, the magistrate judge gave Jones an
opportunity to explain his concerns. The magistrate judge
also heard from attorney Inman and from the government. In
denying Jones’s request, the magistrate judge explained that
Jones’s dispute with his lawyer primarily concerned trial
strategy and that such disputes are insufficient grounds for
replacement of appointed counsel. Jones renewed his request
a week later. The district judge held an ex parte session in
which Jones explained his complaints about Inman. At the
end of the session, the judge denied Jones’s renewed request.
After the fraud trial but before sentencing, Jones asked once
more for a new lawyer. The district judge delegated the re-
quest to a different magistrate judge who heard from both
Jones and Inman in a January 2015 hearing. The magistrate
10 No. 15-1792
judge denied Jones’s third request, noting that he found In-
man’s representations “entirely credible” and that Jones failed
to demonstrate either deficient representation or prejudice.
While Jones may disagree with the judges’ conclusions, he
had ample opportunity to present his concerns to the district
court. In this respect, Jones’s case is unlike cases where we
have found insufficient inquiries into requests for substitute
counsel. See, e.g., Ryals, 512 F.3d at 419–20 (inquiry insuffi-
cient where judge asked attorney just two questions and at-
torney said unequivocally that he could not represent defend-
ant adequately at sentencing); Zillges, 978 F.2d at 371–72 (in-
quiry insufficient where judge ignored defendant’s letter until
morning of trial and then failed to ascertain why defendant
was unhappy with attorney); United States v. Morrison, 946
F.2d 484, 498–99 (7th Cir. 1991) (inquiry insufficient where
judge denied defendant’s motion without holding a hearing).
Here, the district judge and the two magistrate judges “lis-
tened to [defendant’s] concerns, and responded thoughtfully
and appropriately.” Bjorkman, 270 F.3d at 501. The inquiry was
adequate here.
The third factor, the nature of the conflict between attor-
ney and client, gives us pause. Jones points to two defects in
his relationship with Inman: (1) a breakdown in their commu-
nication, and (2) a series of incidents in which Inman por-
trayed Jones in a negative light to the court.
As to the communication breakdown, Jones identifies let-
ters that he sent Inman during the months leading up to trial.
These letters show that Jones was not satisfied with the atten-
tion he was receiving. On September 24, for instance, Jones
complained that Inman had visited him just four times during
a six-month period, while on October 9, he wrote that Inman’s
No. 15-1792 11
“ten minute visit” that day was not what Inman had prom-
ised. We hesitate to place too much importance on Jones’s let-
ters, which show that Jones harbored unrealistic expectations
about his attorney’s obligations. For example, in the Septem-
ber 24 letter, Jones directed Inman to answer “immediately”
twenty-seven written questions. He made similar demands
on October 3 and again on October 9. Jones also referred to a
fourteen-page letter that apparently contained directions for
Inman to follow. While an attorney “undoubtedly has a duty
to consult with the client regarding ‘important decisions,’ in-
cluding questions of overarching defense strategy,” Florida v.
Nixon, 543 U.S. 175, 187 (2004) (citation omitted), the attorney
also has the “full authority to manage the conduct of the trial”
and need not consult with the client on “every tactical deci-
sion,” Taylor v. Illinois, 484 U.S. 400, 418 (1988). It is difficult on
the face of this record to determine whether the conflict be-
tween Inman and Jones at that point involved a true break-
down in communication or simply a mismatch of expecta-
tions.
By the time of trial, however, the relationship between the
two had grown quite strained. Inman made a series of re-
marks to the court that reflected his frustration with his client.
At a hearing on October 20, Jones complained to the court that
Inman had “never gone over the defense” with him. Inman
disagreed, telling the judge that Jones’s statement was “just
not true” and adding that Jones was “incapable of telling the
truth.” On October 27, Jones told the court that Inman had
said he would face a consecutive sentence if he testified. In-
man again disagreed, saying that Jones “can’t tell … the
truth.” At a hearing during the sentencing phase, Inman re-
counted Jones’s conduct during his first trial, saying that Jones
had “faked a heart attack” and “concocted a defense.” Such
12 No. 15-1792
statements, accurate though they were, obviously cast doubt
on the viability of the attorney-client relationship.
These matters are left to the sound discretion of the district
judge, however, because she was much closer to the friction
between client and attorney and to its larger context in the
case. Despite the obvious tension between Inman and Jones,
we find no abuse of discretion here. The record shows that
Jones had engaged in a prolonged pattern of obstructionist
behavior. Against that backdrop, the district judge could rea-
sonably have inferred that Jones’s request for a new lawyer
was yet another attempt to delay justice. In fact, prior to In-
man’s appointment as his lawyer, Jones had cycled through
three other attorneys or legal teams during just the adversar-
ial stage of the proceedings. He had also requested multiple
delays for the first trial, on the firearms charges. Then, on the
morning trial was set to begin, Jones failed to appear. He had
taken a cocktail of medications that caused him to lose con-
sciousness. The scheduled trial had to be delayed again.
At Jones’s first sentencing hearing, in imposing a two-level
enhancement for obstruction, the district judge said that
Jones, a certified addiction specialist, was “very much famil-
iar with the effects of the cocktail of medications that he con-
sumed: sleeping pills, muscle relaxer, and benzodiazepine.
And even a lay person would know that taking that combina-
tion would make you incapacitated the morning of your jury
trial.” Later, in denying Jones’s request for a new lawyer, the
district judge linked her decision to Jones’s long pattern of ob-
structionist behavior:
The Court has considered the timeliness of De-
fendant’s eleventh hour request to change CJA
counsel, the extent of any conflict or breakdown
No. 15-1792 13
in communication between lawyer and client[]
(including the client’s responsibility for any con-
flict), the number of attorneys who have been
assigned to this Defendant, and the pattern of
engaging in intentional delay and manipulation
by the Defendant. The Court finds that the in-
terest of justice does not dictate a substitution of
counsel … .
Given the history of the case, including Jones’s pattern of de-
lay and obstruction, the district judge did not abuse her dis-
cretion in denying Jones’s request for appointment of yet an-
other lawyer.
III. Waiver of the Right to Testify
Moving on to the fraud trial itself, Jones argues that the
district court deprived him of his right to testify on his own
behalf. Whether a defendant’s right to testify has been in-
fringed is a mixed question of law and fact that we review de
novo, though we review the district court’s underlying factual
findings for clear error. United States v. Stark, 507 F.3d 512, 516
(7th Cir. 2007).
A few constitutional rights of the accused are so funda-
mental that they are deemed personal to the accused, and “he
alone may decide whether these rights will be exercised or
waived.” United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.
1984). These rights include the decisions whether to plead
guilty or proceed to trial; whether to be tried by judge or jury;
whether to appeal an adverse verdict; whether to forgo the
assistance of counsel; and, as relevant here, whether to testify.
Id.14 No. 15-1792
Jones says that he never clearly and unequivocally waived
his right to testify. He adds that he “repeatedly affirmed to the
district court that he wanted to testify” but that attorney In-
man “refused to let him testify, preventing him from exercis-
ing this constitutionally guaranteed right.” Based on our re-
view of the record, we disagree. The district judge correctly
found that Jones waived his right to testify. The judge engaged
in three colloquies with Jones on the subject. While Jones’s re-
sponses during the first two colloquies were ambiguous, his
third response was an unequivocal waiver.
On the second day of trial, shortly after the government
rested, the judge asked defense attorney Inman whether he
planned to present any evidence. Inman said no. The judge
then asked Jones whether he wished to testify. Jones’s answer
was ambiguous: he said that Inman would not ask him any of
the questions that he had prepared, “so it would do no good.”
Inman said that he was “well within [his] ethical and profes-
sional obligations in making this call,” but the district judge
stated that it was still up to Jones whether he wished to testify.
Even in a situation where a criminal defense lawyer suspects
that his client might testify untruthfully, the lawyer cannot
simply bar his client from testifying on his own behalf.3
The judge next conducted an ex parte colloquy during
which Jones’s response was again ambiguous:
3The conflict between a criminal defense attorney and an accused
who the attorney knows intends to testify falsely poses one of the oldest
and most intractable problems in professional ethics. Indiana Rule of Pro-
fessional Conduct 3.3, which applies in the Southern District of Indiana,
addresses the problem. The comment to the rule suggests some solutions,
including allowing the client to testify in narrative form, but does not pro-
vide guidance that is clear in all scenarios.
No. 15-1792 15
THE COURT: Mr. Inman … can’t ask you any
questions that would elicit what he believes
would be perjurious testimony.
THE DEFENDANT: I wouldn’t—I wouldn’t ex-
pect him to, but I see that he’s not going to do it,
so I have no choice but to stand down.
THE COURT: And take your attorney’s advice,
which is fine, okay? I just need to feel confident
that—
INMAN: Your Honor, I think with that, we’re
prepared to go forward.
THE COURT: Okay. Okay.
THE DEFENDANT: But I wasn’t lying, nor
would I lie. Thank you, Your Honor.
This ambiguous exchange did not resolve the matter. Later
that afternoon, the district judge inquired again and got an-
other ambiguous answer:
THE COURT: Now, your lawyer has strongly
stated that he does not believe it would be to
your benefit, tactically and strategically, to tes-
tify, but you’ve got to tell me that you agree with
that.
THE DEFENDANT: But, Your Honor, the issue
I have is, I can’t testify if I—we haven’t gone
over any questions. I mean, there’s a lot of things
that could be—
THE COURT: Well, you don’t necessarily have
to go over any questions. Your lawyer … knows
what questions to ask.
16 No. 15-1792
….
THE DEFENDANT: Your Honor, I bow to
your—I mean, you’re the boss. I respect you and
I respect your position.
THE COURT: All right.
THE DEFENDANT: Thank you, ma’am.
THE COURT: And I respect your position, also,
okay? So you’re going to concede to the advice
of your counsel and not testify. …
INMAN: Thank you, Your Honor.
Those first two colloquies were not sufficient to show that
Jones himself was personally waiving his right to testify. If the
judge had not tried a third time, Jones’s argument on appeal
would have considerably greater force. But the judge wisely
inquired again on the final morning of trial:
THE COURT: First of all, Mr. Inman … the
Court needs to be comfortable that your client is
comfortable with his waiver of his right to tes-
tify. And you’ve talked with him about that?
INMAN: We have, Your Honor. We’ve talked
this morning.
THE COURT: And, Dr. Jones, are you comforta-
ble with your decision?
THE DEFENDANT: Yes.
Against the background of the two earlier discussions, Jones’s
unqualified “yes” answer during the third colloquy was an
unequivocal waiver of his right to testify. It is helpful to con-
trast those rare cases in which we have found invalid waivers.
No. 15-1792 17
For example, in Ward v. Sternes, 334 F.3d 696, 700 (7th Cir.
2003), the defendant answered the court’s question whether
he agreed that it was a good decision not to testify by stating:
“I guess. I don’t know.” That ambiguous response was all the
less reliable because the defendant suffered from aphasia, a
condition that manifested in a disconnect between questions
asked and answers received. Id. at 698. And in Ortega v.
O’Leary, 843 F.2d 258, 260 (7th Cir. 1988), the defendant twice
interrupted the proceedings and expressed his desire to tes-
tify. The trial judge ordered the defendant to remain silent. On
further inquiry, defense counsel stated that a “joint decision
had been made” that the defendant would not testify. Id. The
defendant protested, but the court treated the evidence as
closed and allowed the case to proceed to closing arguments.
This case is readily distinguishable from Ward and Ortega.
Unlike Ward, there is no evidence in this record tending to
show that Jones suffered from any physical or mental impair-
ment that might have compromised his waiver. Unlike Ortega,
the district judge here made clear that the decision whether to
testify was ultimately up to Jones, and she asked three times
to ensure that his waiver was knowing and voluntary. And
unlike both Ward and Ortega, Jones’s answer during the final
colloquy—a simple “yes”—was clear. See Ward, 334 F.3d at
707 (“direct, unequivocal answer to a trial court’s colloquy
will suffice to find a knowing, intelligent waiver”). Given the
choice, Jones elected not to testify at his fraud trial. Apprised
of his constitutional right, he waived it.
IV. Sentencing Guidelines Calculation
Finally, Jones contends that the district court miscalcu-
lated the sentencing guideline range for his firearms offenses
by improperly taking account of his 1985 felony conviction for
18 No. 15-1792
a controlled substance offense. We review de novo the district
court’s legal interpretations of the Sentencing Guidelines,
though we review its factual findings for clear error. United
States v. Saunders, 826 F.3d 363, 372 (7th Cir. 2016).
In applying the Guidelines for Jones’s fraud conviction,
the district judge computed a base offense level of six with a
ten-level enhancement for the loss amount and a two-level en-
hancement for abuse of trust, resulting in an adjusted offense
level of 18. In applying the Guidelines for Jones’s felon-in-pos-
session convictions, although the base offense level would or-
dinarily be 14, the district judge used a base offense level of
20 under U.S.S.G. § 2K2.1(a)(4)(A). That section provides for
an enhancement where the “defendant committed any part of
the instant offense subsequent to sustaining one felony con-
viction of either a crime of violence or a controlled substance
offense.” The judge added six levels for the number of fire-
arms involved in the offense and two levels for obstruction of
justice, resulting in an adjusted offense level of 28. The judge
used this second adjusted offense level as the combined ad-
justed offense level for both offense groups. With three crimi-
nal history points, Jones was in criminal history category II,
which resulted in a guideline range of 87 to 108 months in
prison. The judge ultimately sentenced Jones to 90 months on
the fraud count and 100 months on each felon-in-possession
count, all terms to be served concurrently.
Jones argues that the district judge should have disre-
garded his 1985 conviction. Under U.S.S.G. § 2K2.1 cmt. n.10
and §§ 4A1.1 and 4A1.2, there is a fifteen-year lookback pe-
riod for prior felony convictions. See § 4A1.2(e)(1) (“Any prior
sentence of imprisonment exceeding one year and one month
No. 15-1792 19
that was imposed within fifteen years of the defendant’s com-
mencement of the instant offense is counted. Also count any
prior sentence of imprisonment exceeding one year and one
month, whenever imposed, that resulted in the defendant be-
ing incarcerated during any part of such fifteen-year pe-
riod.”). Because Jones was released from state custody in Oc-
tober 1988, the “instant offense” must have commenced no
later than October 2003 to bring the prior conviction within its
scope. Yet the controlling indictment charged that Jones pos-
sessed firearms and ammunition between March and June
2010, over 21 years after he was released from state custody.4
While the indictment charged only conduct occurring in
2010, the evidence introduced at trial showed that Jones pos-
sessed weapons and ammunition much earlier. For instance,
the government introduced a 1996 prenuptial agreement
signed by Jones and Larissa Coroban, his then-fiancée. The
document described Jones’s assets as including fifteen pistols,
nine shotguns, and fourteen rifles. The government also intro-
duced a document drafted by Jones in 2001 titled “Transfer,
Receipt, and Agreement of Firearms.” Through this docu-
ment, Jones purported to transfer to Ms. Coroban certain
weapons that a friend had been holding on his behalf. Jones
implied that he had owned these weapons since before his
1985 conviction; he said that he was advised to “write this up
4 Although the parties disagree about exactly which guideline range
would have applied if the district judge had excluded the 1985 conviction
from her computation, any range would have been significantly lower
than the one used. With a base offense level of 14 instead of 20 and crimi-
nal history category I—assuming the same enhancements for firearm
quantity and obstruction of justice—Jones’s guideline range for his fire-
arms offenses would have been 41 to 51 months in prison, less than half
the range that the district judge used.
20 No. 15-1792
so no one would make trouble over [his] owning them.” He
also asked Ms. Coroban not to sell three of the guns until after
his death, a detail that the district judge later highlighted as
evidence of possession.
Additional evidence supports an inference that Jones con-
tinuously possessed firearms from at least 1996 (and likely
much earlier) up through and including the charged period.
For example, the government introduced a “Financial Balance
Sheet” that Jones apparently drafted in April 2009. It valued
Jones’s “Gun Collection/Ammo” at that time at $35,000. The
government also introduced a 2009 e-mail in which Jones told
his brother about his large gun collection. During the FBI in-
vestigation in 2010, agents recovered dozens of weapons and
thousands of rounds of ammunition from Jones’s residence,
his treatment lodge, and his cabin in Roundup, Montana. The
evidence seized at the Montana cabin was especially inculpa-
tory, as Ms. Coroban testified that she had never visited the
cabin. Two of the guns recovered from the cabin were listed
on an inventory sheet that investigators also seized: that sheet
listed appraisal values dating to 1983. A Colt .45 caliber “Gold
Cup” pistol recovered from Jones’s treatment lodge in Indiana
matched the description of a gun Jones testified that he car-
ried in the 1970s.
In light of all this evidence, the district judge found an “on-
going series of weapon possession by a prohibited person.”
She added that Jones’s “possession and acquirement of his
massive gun collection … took place over decades.” These
findings are not clearly erroneous. Jones continuously pos-
sessed weapons beginning no later than 1996 and probably
much earlier. Thus, while the indictment charged unlawful
possession in 2010, the continuous course of conduct giving
No. 15-1792 21
rise to the charges began within the fifteen-year period fol-
lowing Jones’s release from state custody. Under the terms of
U.S.S.G. §§ 2K2.1(a)(4)(A) and 4A1.2(e)(1), the district court
properly used Jones’s 1985 conviction to enhance his base of-
fense level on the felon-in-possession counts.
Alternatively, Jones’s possession of firearms outside the in-
dictment window could be characterized as relevant conduct
for guideline purposes. Application note 8 to § 4A1.2 teaches
that the “commencement of the instant offense” for purposes
of calculating the fifteen-year lookback period includes rele-
vant conduct as defined in § 1B1.3. That section in turn defines
relevant conduct to include acts or omissions that were “part
of the same course of conduct or common scheme or plan as
the offense of conviction.” § 1B1.3(a)(2). “Offenses are part of
the same course of conduct if they are ‘part of a single episode,
spree, or ongoing series of offenses.’” United States v. Ortiz,
431 F.3d 1035, 1040 (7th Cir. 2005) (citation omitted). We con-
sider whether there is a “strong relationship between the un-
charged conduct and the convicted offense, focusing on
whether the government has demonstrated a significant ‘sim-
ilarity, regularity, and temporal proximity [between] the un-
charged acts and the offense of conviction.’” United States v.
Acosta, 85 F.3d 275, 281 (7th Cir. 1996) (alteration in original)
(citation omitted).
The similarity factor is plainly satisfied in this case. The
uncharged conduct (possession of firearms by a prohibited
person) was identical to the charged conduct. Given the dis-
trict court’s reasonable finding that Jones possessed firearms
continuously from at least 1996 forward, the regularity and
proximity factors are satisfied as well.
22 No. 15-1792
Jones argues that his prior possession of weapons cannot
constitute relevant conduct under the Sentencing Guidelines
because of the bar on double-counting. See U.S.S.G. § 1B1.3
cmt. background (“Conduct that is not formally charged or is
not an element of the offense of conviction may enter into the de-
termination of the applicable guideline sentencing range.”)
(emphasis added). This argument is a non-starter. Section
§ 922(g)(1) simply prohibits felons from possessing firearms
and ammunition, period; duration is not an element of the of-
fense. But at the sentencing stage, it is appropriate for the sen-
tencing judge to consider the length of time over which the
defendant violated the prohibition. Other things being equal,
a felon who possesses a weapon for a fleeting moment is less
culpable than one who possesses many weapons continu-
ously for many years.
Jones also argues that uncharged conduct must be “sepa-
rate and/or iterative” to qualify as relevant conduct under
U.S.S.G. § 1B1.3. In support of his argument, Jones cites sev-
eral cases addressing episodic or transactional crimes. See
United States v. Sumner, 325 F.3d 884 (7th Cir. 2003) (drug deal-
ing); United States v. Spry, 190 F.3d 829 (7th Cir. 1999) (drug
dealing); United States v. Powell, 124 F.3d 655 (5th Cir. 1997)
(tax evasion). These episodic crimes by their very nature in-
volve separate (if similar) episodes. But 18 U.S.C. § 922(g)(1)
defines a status-based crime—passive conduct that by its na-
ture is often continuous, not episodic or iterative. Nothing in
§ 1B1.3 leads us to believe that the Sentencing Commission
intended to exclude status-based offenses from the relevant
conduct provisions. On the contrary, by taking into consider-
ation the length of time that a defendant possesses weapons
in violation of federal law, a sentencing judge furthers the goal
of the relevant conduct Guideline—i.e., “taking into account
No. 15-1792 23
all germane uncharged conduct demonstrating the serious-
ness of the offense conduct.” United States v. Nance, 611 F.3d
409, 417 (7th Cir. 2010).
In the end, whether viewed as relevant conduct or simply
as a part of the offense conduct, Jones’s continuous possession
of firearms starting in 1996 or earlier brings his 1985 convic-
tion within the fifteen-year lookback period. The district court
properly used that conviction to increase the base offense
level for Jones’s felon-in-possession counts. We find no error
in the resulting guideline computation.
Jones’s convictions and sentences are AFFIRMED.