United States v. Alfred L. Cross ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18‐3633
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ALFRED L. CROSS,
Defendant‐Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:17‐cr‐30047‐NJR‐1 — Nancy J. Rosenstengel, Chief Judge.
ARGUED SEPTEMBER 25, 2019 — DECIDED MAY 22, 2020
AMENDED ON DENIAL OF REHEARING AND
REHEARING EN BANC JUNE 18, 2020
Before RIPPLE, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. Alfred L. Cross pled guilty to five
counts of bank fraud, in violation of 18 U.S.C. § 1344(1). Shortly
before sentencing, he moved pro se to terminate his counsel,
2 No. 18‐3633
withdraw his guilty plea, and dismiss the case. The district
court denied all three motions. He now appeals the court’s
denial of his motion to withdraw his plea, and we affirm.
I.
Between April of 2011 and March of 2015, Cross unlawfully
obtained approximately $516,000 from several southern Illinois
banks through a simple scheme. Cross opened bank accounts
at out‐of‐state banks in the names of companies that he
claimed to own. He also opened checking accounts at seven
banks in southern Illinois, again in the names of companies he
purportedly owned. Over the course of four years, he wrote
large checks on the out‐of‐state accounts and deposited them
in his accounts at the Illinois banks, knowing that there were
insufficient funds in the out‐of‐state accounts to cover those
checks. In each of the charged instances, he then withdrew
from the Illinois banks all, or substantially all, of the money
that he had purportedly deposited, taking the funds in the
form of cashier’s checks, cash withdrawals, checks and debit
card purchases before any of the banks could discover that the
large checks that he had deposited were not backed by
sufficient funds in the out‐of‐state accounts.
Based on this conduct, he was charged with five counts of
bank fraud in violation of 18 U.S.C. § 1344(1). Each count of the
indictment alleged that Cross carried out his scheme to
defraud the banks by depositing large checks written on the
out‐of‐state accounts into banks in Illinois, knowing those
checks were not covered by sufficient funds, and then with‐
drawing the funds before the banks could discover that the
No. 18‐3633 3
deposited checks were not sufficiently funded. For example,
Count I charged:
On or about April 14, 2011, within the Southern
District of Illinois, ALFRED L. CROSS, defendant
herein, knowingly executed and attempted to
execute his scheme to defraud by making a deposit
into the “Al L. Cross ‐ Consolidated Billing Ac‐
count” at Washington Savings Bank using a check in
the amount of $18,875, drawn on an account entitled
“Alfred L. Cross ‐ Cross/Hart/Page ‐ Special Ac‐
count” at County Bank in Fresno California, which
check defendant knew to be NSF; In violation of
Title 18, United States Code, Section 1344(1).
R. 36, at 3.1 The other four counts varied only in the dates of the
deposits, the amounts of the checks, the titles on the accounts,
and the names of the banks involved in the scheme.
The court appointed counsel to represent Cross in March of
2017, shortly after he was charged. But Cross had difficulty
with each of the three lawyers that the court ultimately
appointed. After approximately eight months, the court
allowed the first attorney to withdraw, and appointed a second
on November 30, 2017. On March 16, 2018, while represented
by the second attorney, Cross entered his guilty plea. Two
months later, his relationship with the second lawyer deterio‐
rated and the court allowed that attorney to withdraw as well,
appointing a third counsel on May 24, 2018. Less than a week
1
“NSF” is an acronym used in the banking industry. It stands for “non‐
sufficient funds..”
4 No. 18‐3633
later, Cross filed a pro se motion to withdraw his guilty plea,
which the court promptly struck, advising Cross that the court
would entertain only those motions that had been filed by
counsel. Despite that warning, on December 6, 2018, a few
days before his scheduled sentencing hearing, Cross filed three
pro se motions styled, “An [sic] Motion To Withdraw Guilty
Plea,” “Motion To Terminate Counsel,” and “Motion To
Dismiss Case Per A, Mauro, Violation.”2
Rather than striking these motions outright, the court
decided to take them up at the sentencing hearing that was
scheduled for just a few days later. The Court’s order advised
counsel for both sides and the defendant himself to be pre‐
pared to discuss the motions. At the hearing the court gave the
defendant, his counsel and the government opportunities to
address the motions.3 The court denied the Motion to Termi‐
nate Counsel on the merits and denied the Motion to Dismiss
because Cross had filed it pro se during a time that he was
represented by counsel. The court denied the Motion to
Withdraw Guilty Plea both on the merits and because Cross
had filed it pro se while represented by counsel. The court
resolved Cross’s numerous objections to the PSR, considered
2
“Mauro” is apparently a reference to United States v. Mauro, 436 U.S. 340
(1978), which is cited in the motion as the basis for dismissal.
3
In his brief, Cross complains that the district court did not allow him to
argue his motions and cut him off when he attempted to speak. That is not
an accurate characterization of the hearing. Although the district judge
limited Cross’s remarks, she did allow him to address his three motions.
That he failed to make productive use of the opportunity was his own
misstep, and the court was not obligated to allow him unlimited time.
No. 18‐3633 5
the parties’ respective arguments as to sentencing, heard
Cross’s allocution, and analyzed the statutory sentencing
factors. The court then sentenced Cross to seventy‐eight
months’ imprisonment and five years of supervised release.
Cross appeals.
II.
On appeal, Cross asserts that the district court erred when
it denied his Motion to Withdraw Guilty Plea. We normally
review the district court’s denial of a motion to withdraw a
guilty plea for abuse of discretion, and we review any related
factual findings for clear error. United States v. Haslam, 833 F.3d
840, 844 (7th Cir. 2016). When a defendant moves to withdraw
a plea after the court has accepted the plea but before sentenc‐
ing, the defendant may withdraw the plea if he or she “can
show a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B). See also Haslam, 840 F.3d at 844. “A
guilty plea operates as a waiver of important rights, and is
valid only if done voluntarily, knowingly, and intelligently,
‘with sufficient awareness of the relevant circumstances and
likely consequences.’” Bradshaw v. Stumpf, 545 U.S. 175, 183
(2005) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
A plea may be found invalid under this standard where a
defendant pleads guilty to a crime without having been
informed of the crime’s elements. Bradshaw, 545 U.S. at 183;
Henderson v. Morgan, 426 U.S. 637, 645–47 (1976).
Cross asserts here that he was not properly informed of all
of the elements of bank fraud. He argues that, in order to hold
him liable for bank fraud under section 1344(1), the govern‐
ment was required to prove that the scheme to defraud
6 No. 18‐3633
involved a material falsehood or omission, citing Neder v.
United States, 527 U.S. 1 (1999). But there was no mention of a
material falsehood or omission at his plea hearing, he asserts,
and the government instead proved nothing more than the
passing of bad checks, which he argues is not a federal offense.
Because he was not informed of all of the elements of the crime
to which he pled guilty and because the government presented
no evidence of the element of a material falsehood or omission,
he contends that his plea was not knowing and voluntary. He
urges us to conclude that the district court therefore abused its
discretion in denying his motion to withdraw his plea. He asks
that we vacate the judgment and remand for further proceed‐
ings.
A.
As Cross himself concedes in his brief, “[t]here is a wrinkle
in this case.” Brief at 21. Aware that the court denied the
Motion to Withdraw Guilty Plea both on the merits and, in the
alternative, because it was filed pro se, Cross also advances an
argument that the district court abused its discretion when it
denied his Motion to Terminate Counsel. Specifically, he
contends that he expressed in his Motion to Terminate Counsel
an unequivocal request to proceed pro se. But the court instead
misconstrued that motion as one to substitute counsel, he
contends, and then failed to conduct the colloquy necessary to
determine whether he could proceed pro se. Summarily
denying his request to proceed pro se was an abuse of discre‐
tion, he asserts. He suggests that the district court therefore
also abused its discretion when it denied his motion to with‐
draw his guilty plea on the alternate ground that it was filed
pro se. He then appears to ask that this court address his appeal
No. 18‐3633 7
of the denial of his motion to withdraw his guilty plea solely
on the merits, under the abuse of discretion standard.4
Although it is unclear whether Cross seeks appellate relief
from the denial of his Motion to Terminate Counsel, it is clear
that he means to use the district court’s purported error on that
issue to set the standard for our review of the denial of the
Motion to Withdraw Guilty Plea, his primary issue on appeal.
Before considering the arguments relating to the Motion to
Withdraw Guilty Plea, we think it best to clear away the
underbrush of this secondary argument regarding the Motion
to Terminate Counsel.
We begin with Cross’s claim that the court erred when it
misconstrued his Motion to Terminate Counsel as a motion to
substitute counsel rather than as a request to proceed pro se. “In
order to proceed pro se, a defendant must ‘clearly and unequiv‐
ocally’ raise the right to self‐representation.” United States v.
Mancillas, 880 F.3d 297, 301 (7th Cir. 2018) (quoting Faretta v.
California, 422 U.S. 806, 835 (1975)). We require an unequivocal
invocation of the right to proceed pro se in order “to prevent a
defendant from using an ambiguous waiver of the right to
counsel as a tool to overturn his or her conviction.” Mancillas,
4
We hedge our description of Cross’s argument both because it is difficult
to untangle the logic in this part of his opening brief and because he
emphasizes in his reply brief that “he does not argue that the prosecutor’s
mischaracterization of his motion to terminate counsel entitles him to
relief.” Reply Brief at 1. Yet the argument in the opening brief seems to
suggest that he is at least seeking relief for that alleged error by the court
below by urging this court to alter the standard of review for the denial of
his motion to withdraw his guilty plea.
8 No. 18‐3633
880 F.3d at 301. See also United States v. Campbell, 659 F.3d 607,
612 (7th Cir. 2011), vacated on other grounds, sub. nom.
Campbell v. United States, 568 U.S. 802 (2012) (describing the
rationales for requiring that the demand to proceed pro se be
unequivocal).
Cross’s purported request to proceed pro se does not meet
this standard. Cross relies heavily on the title of his motion,
noting that it seeks to “terminate” counsel, and on a letter from
his counsel that he attached to the motion.5 But nowhere in the
Motion to Terminate Counsel did Cross express a desire to
represent himself should the court grant his request to termi‐
nate his third appointed lawyer. Instead, Cross asserted in the
Motion that counsel was ineffective because he was insuffi‐
ciently aware of the facts and law related to the charges against
Cross. Cross also complained that counsel “inherited” the
errors of the two lawyers who came before him, refused to file
a motion to withdraw the guilty plea, and failed to correct
claimed errors in the presentence report. R. 153. On the day of
the hearing, when the court inquired whether Cross wished to
“persist in the motions that [he] filed” the prior week, he
responded affirmatively and then spoke for two pages of
transcript without ever indicating that he wished to represent
himself. In fact, at no point during the hearing did Cross
5
The attached letter from Cross’s third attorney explained the reasons that
counsel would not comply with Cross’s demand that he file a motion to
withdraw the guilty plea. Counsel ends the letter by clearly stating that he
will not file the motion, and advising Cross that, if he wants to file the
motion, “you will need to ask the Court to let you represent yourself.” The
quoted portion of the letter is underlined by hand, presumably by Cross
himself. R. 123, at 5.
No. 18‐3633 9
mention that he wished to represent himself. Rather, he simply
expressed dissatisfaction with his current and former attor‐
neys. A defendant seeking to “terminate” counsel could be
requesting to substitute new counsel, be seeking to proceed pro
se entirely, or be requesting to present a particular motion pro
se even though represented by counsel. See United States v.
Patterson, 576 F.3d 431, 436 (7th Cir. 2009) (noting that whether
a defendant may act as co‐counsel along with his own attorney
is a matter within the discretion of the district court).
Without any statement that Cross wished to represent
himself, much less an unequivocal request to do so, the court
reasonably interpreted Cross’s motion as one to substitute
counsel, which it appropriately denied after rejecting Cross’s
complaints about his third lawyer. In response to Cross’s prior
difficulties with his lawyers, the court had twice appointed
new counsel, and it was reasonable to construe this ambiguous
motion as asking for similar relief. In determining whether a
court abuses its discretion in denying a motion to substitute
counsel, a court considers, among other things, the timeliness
of the motion, the adequacy of the court’s inquiry into the
defendant’s motion, and whether the conflict was so great that
it resulted in a total lack of communication preventing an
adequate defense. United States v. Best, 426 F.3d 937, 947 (7th
Cir. 2005). Here, the court found that counsel had competently
represented Cross, and that counsel had appropriately filed
objections to the PSR that the court would take up at the
appropriate time. The court also noted that Cross appeared to
be trying to simply delay the proceedings. Importantly, the
court also found that there was no breakdown of communica‐
tion between Cross and his lawyer that might justify substitu‐
10 No. 18‐3633
tion of counsel. Finding no abuse of discretion in the court’s
denial of the Motion to Terminate Counsel, we turn to the
primary issue on appeal unencumbered by this side issue.
B.
The district court provided two reasons for denying the
Motion to Withdraw Guilty Plea. First, it denied the motion on
the merits, finding that Cross had knowingly and voluntarily
pled guilty. Second, the court rejected the motion because it
was filed pro se even though the defendant was represented by
counsel. As noted above, we normally review the merits of a
denial of the Motion to Withdraw the Guilty Plea for abuse of
discretion. Haslam, 833 F.3d at 844. As we discuss below,
however, review in this case is for plain error only. We review
for abuse of discretion a district court’s denial of a motion filed
pro se by a defendant who is represented by counsel. Patterson,
576 F.3d at 436.
1.
A defendant does not have a right to represent himself
when he is also represented by counsel. Patterson, 576 F.3d at
436. A court thus has “wide discretion to reject pro se submis‐
sions by defendants represented by counsel,” and there was no
abuse of discretion in the court’s decision to reject Cross’s
motion on that basis here. A careful reading of the transcript
reveals that the court had concluded that Cross was filing this
motion for the purpose of delaying the proceedings, noting
that he had filed his latest round of pro se motions just two
business days before his sentencing hearing, after proceedings
that had already been in progress for twenty‐one months. The
court also remarked that Cross had been represented by highly
No. 18‐3633 11
competent lawyers including two lawyers whom the court
characterized as among the best panel attorneys available in
the district. That included the attorney who represented him at
the time of sentencing, who had also refused to file a motion to
withdraw the guilty plea, explaining in a letter that Cross
attached to his Motion to Terminate Counsel the reasons for
that refusal. The court was well within its discretion in denying
the motion because it had been filed pro se when Cross was
represented by highly competent counsel who had refused to
file the very same motion for cogent reasons.
2.
We turn to the merits of the court’s refusal to allow Cross
to withdraw his guilty plea. Cross contended that he was not
advised of one of the elements of bank fraud, namely, the
requirement that the government prove a misrepresentation or
omission of a material fact. He also contends that the govern‐
ment did not present evidence of this element and that he did
not admit to conduct that would satisfy that element of the
crime. He maintains that, because of these failures, his guilty
plea was not knowing and voluntary, and the court should
have allowed him to withdraw it on that basis. The govern‐
ment responds that section 1344(1) does not require that a
scheme to defraud involve false statements or representations.6
6
The government also argued that Cross’s scheme resembles check kiting,
and that check kiting is unlawful under section 1344(1) without additional
proof of a material misrepresentation. We decline to consider this additional
argument.
12 No. 18‐3633
Cross urges us to review this issue under the abuse of
discretion standard. The government agrees that the abuse of
discretion standard applies, but “we are not bound to accept
the government’s concession when the point at issue is a
question of law.” Krieger v. United States, 842 F.3d 490, 499 (7th
Cir. 2016). Cf. Estrada‐Martinez v. Lynch, 809 F.3d 886, 894 (7th
Cir. 2015) (whether the Board of Immigration Appeals applied
the proper standard of review is a legal question that is
reviewed de novo). The government based its concession
entirely on the contents of Cross’s pro se filings, and we have
concluded that the district court did not abuse its discretion in
ignoring those filings because Cross was represented by
competent counsel. Because Cross “never properly requested
that the district court vacate his guilty plea, we review for plain
error.” Patterson, 576 F.3d at 438. See also Puckett v. United
States, 556 U.S. 129, 133‐34 (2009) (finding that Rule 52(b)’s
plain‐error test applies to a forfeited claim that the government
failed to meet its obligations under a plea agreement).
In order to reverse for plain error, we must find (1) error (2)
that is plain, and (3) that affects the defendantʹs substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993); United
States v. Stewart, 902 F.3d 664, 675 (7th Cir. 2018). An error is
plain if it is clear or obvious. Olano, 507 U.S. at 734; Stewart, 902
F.3d at 675. And an error affects the defendantʹs substantial
rights when it is prejudicial, that is, when it has affected the
outcome of the district court proceedings. Olano, 507 U.S. at
734; Stewart, 902 F.3d at 675. Finally, “Rule 52(b) leaves the
decision to correct the forfeited error within the sound discre‐
tion of the court of appeals, and the court should not exercise
that discretion unless the error ‘seriously affect[s] the fairness,
No. 18‐3633 13
integrity or public reputation of judicial proceedings.’” Olano,
507 U.S. at 732 (quoting United States v. Young, 470 U.S. 1, 15
(1985)).
We recently addressed the materiality prong of section 1344
in United States v. LeBeau, 949 F.3d 334 (7th Cir. 2020). The
defendant there was also charged with bank fraud under
section 1344(1), although for a very different scheme than the
one at issue here. LeBeau obtained bank loans in part by
submitting false financial statements that failed to disclose his
significant debts. He also misrepresented to the bank the status
of a building project in order to persuade the bank to delay
foreclosing on the loan. At trial, the jury instructions failed to
state that the government was required to prove that the
“scheme involved a materially false or fraudulent pretense,
representation, or promise …,” as recommended in the
Seventh Circuit Pattern Jury Instructions. The panel concluded
that LeBeau waived the issue because he affirmatively ap‐
proved the wording of the jury instructions.
But the panel also noted that the issue was a serious one:
In Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827,
144 L. Ed. 2d 35 (1999), the Supreme Court held that
“materiality of falsehood is an element of the federal
... bank fraud statute[ ].” Id. at 25, 119 S. Ct. 1827. It
did not limit that holding to section 1344(2). Rather,
it determined that “fraud” itself requires the element
of materiality. Id. at 23, 119 S. Ct. 1827. We have since
said that Neder requires “district courts [to] include
materiality in the jury instructions for section 1344.”
14 No. 18‐3633
United States v. Reynolds, 189 F.3d 521, 525 n.2 (7th
Cir. 1999).
LeBeau, 949 F.3d at 341. The commentary for the Pattern
Instruction for section 1344 provided additional guidance:
Although the Seventh Circuit has not yet addressed
the application of Neder to § 1344(1) specifically, the
Ninth Circuit, in United States v. Omer, 395 F.3d 1087
(9th Cir. 2005), held that materiality is an element of
a § 1344(1) violation under Neder. In light of the
general admonitions in Neder and Reynolds, this
instruction has been modified to reflect this require‐
ment.
LeBeau, 949 F.3d at 341 (quoting Pattern Criminal Jury Instruc‐
tions of the Seventh Circuit (2012 Ed.) (plus 2015–2017 and
2 0 1 8 c h a n g e s ) , h t t p : / / w w w. c a 7 . u s c o u r t s . g o v /
pattern‐jury‐instructions/7th_criminal_jury_instr.pdf, at 448).
We acknowledged that we have not always been consistent in
following this guidance but advised that “[t]he better course,
consistent with Neder, is to require the materiality instruction
on all bank‐fraud charges, whether brought under section
1344(1) or (2),” until we receive greater clarity from the
Supreme Court on what is required. LeBeau, 949 F.3d at 341.
LeBeau makes clear that our case law on this issue has not
always been consistent, and any error in failing to include the
element of material misrepresentation therefore was not clear
or obvious. As such, it does not meet the plain error standard.
The government assured the panel in LeBeau that its current
practice is to include the materiality element in all section 1344
cases, a prudent policy. Something must distinguish fraud
No. 18‐3633 15
from theft, and the Supreme Court made clear in Neder that a
materially false pretense fits the bill. See also United States v.
Freed, 921 F.3d 716, 722 (7th Cir. 2019) (noting that a bank fraud
conviction requires the government to prove, among other
things, that the scheme involved a materially false or fraudu‐
lent pretense, representation, or promise).
As for Cross, we conclude by noting that there is some
evidence in the record that at least part of his scheme involved
material misrepresentations. United States v. Arenal, 500 F.3d
634, 638 (7th Cir. 2007) (a district court may consider not only
the information proffered at the plea hearing, but also informa‐
tion contained in the PSR to establish a factual basis before
entry of judgment and imposition of sentence). As the district
court noted, banks normally place holds on large checks,
refusing to make the deposited funds available until the
originating banks confirm that there are sufficient funds to
cover the deposited checks. R. 174, Sent. Tr. at 59–60. Some of
the Illinois banks where Cross engaged in his scheme failed to
follow their own rules on check holds, releasing funds to Cross
without first ensuring that the deposits were valid. The district
court noted that Cross “schmoozed” one bank employee and
“scammed” others in order to convince them to bend the rules
and release the funds. The court also remarked that Cross
targeted the youngest and least experienced bank employees
and then always had an excuse or story when the banks
contacted him after the deposited checks failed to clear. An
Illinois bank employee was fired as a result of falling for
Cross’s assurances. R. 174, Sent. Tr. at 59–60. On this record,
we decline to find that any error on the material misrepresenta‐
16 No. 18‐3633
tion element seriously affected the fairness, integrity or public
reputation of judicial proceedings. Olano, 507 U.S. at 732.
AFFIRMED.