United States v. Loy

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 25, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-3444
v. (D. Kansas)
MICHAEL F. LOY, (D.C. No. 03-CR-10171-01-WEB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HENRY, ANDERSON, and O’BRIEN, Circuit Judges.
Defendant Michael F. Loy pled guilty, pursuant to a plea agreement, to one
count of mail fraud, in violation of 18 U.S.C. § 1341, two counts of wire fraud, in
violation of 18 U.S.C. § 1343, and one count of interstate transportation of stolen
property, in violation of 18 U.S.C. § 2314. He was sentenced to sixty-three
months’ imprisonment, followed by two years of supervised release, and was
ordered to pay $239,752.32 in restitution. Loy’s subsequent motion to withdraw
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
his guilty plea was denied by the district court. He appeals that denial. We
affirm.
BACKGROUND
On October 21, 2003, a twelve-count indictment charged Loy, a certified
public accountant, with various counts of mail fraud, wire fraud, money
laundering, forging an endorsement on a security, and interstate transportation of
stolen property. 1 In early plea negotiations with the government prior to his
indictment, Loy was represented by attorney John Ambrosio.
Loy made his first appearance before Magistrate Judge Karen Humphreys
on November 5, 2003. Attorney Chris Meek appeared with Loy but did not enter
an appearance. Loy informed the court that he was in the process of retaining
Meek as his counsel. Magistrate Judge Humphreys scheduled the case for
arraignment on November 12, 2003, in order to accommodate Meek’s schedule.
Loy appeared at his arraignment on November 12, accompanied by
Assistant Federal Public Defender Timothy Henry. Henry did not enter his
appearance. When questioned by the court concerning counsel, Loy represented
1
More specifically, Loy was charged with one count of mail fraud, two
counts of wire fraud, three counts of money laundering, two counts of forging an
endorsement on a security, and four counts of interstate transportation of stolen
property.
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that he would finalize his arrangements for retention of counsel by the following
Friday. Magistrate Judge Humphreys informed Loy that he should “feel free to
call Mr. Henry” if he needed help obtaining counsel. R. Vol. II at 154. The
magistrate judge continued the arraignment until November 19. On November 19,
Loy had still not retained counsel, so the arraignment was again continued, this
time until December 3, 2003.
Meanwhile, on November 13, 2003, the district court issued a General
Order of Discovery and Scheduling, providing for a trial date of January 13, 2004.
On December 3, 2003, Loy appeared before Magistrate Judge Donald
Bostwick for arraignment, and he again was without counsel. The magistrate
judge asked Loy if he was “going to be able to retain counsel.” Id. at 158. Loy
responded, “[y]es, Your Honor. I apologize for the delay.” Id. at 158-59. The
magistrate judge expressed concern that the delay in retaining counsel would
make it difficult for the attorney to adequately represent Loy at trial. When Loy
asked whether an attorney could enter an appearance at a later date, the magistrate
judge responded that an attorney could enter an appearance at any time. When the
magistrate judge asked Loy if he was prepared to proceed to arraignment, Loy
responded that he was comfortable proceeding by himself.
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The magistrate judge accordingly proceeded with arraignment, informing
Loy in detail of the charges against him, to which he pled not guilty. At the
conclusion of the arraignment proceedings, the magistrate judge told Loy:
I cannot say to you more emphatically that you need to get an
attorney and get an attorney immediately because things are going to
start[] rolling very fast with [district court] Judge Brown and if you
don’t get an attorney, we’re going to get into some real problems in
this case.
Id. at 168-69. When asked whether the retention of Meek as Loy’s counsel was
imminent, Loy responded that Meek would be retained “[w]ithin the next week.”
Id. at 169. Meek did not, however, enter an appearance as counsel.
On December 18, 2003, the district court granted the government’s motion
to set a status conference and scheduled the conference for December 29, 2003.
Loy failed to appear at the conference on the 29th, but because there was some
question whether he had received notice of the conference, the status conference
was rescheduled for December 31, 2003. On December 31, Loy appeared at the
status conference before the district court with Assistant Federal Public Defender
Steve Gradert, whom the court had asked to attend to assist Loy as needed. At
this hearing, the district court asked Loy if he had obtained counsel, to which Loy
replied that he was meeting with Meek the following Tuesday to finalize
arrangements for representation. Loy also informed the court that he could afford
counsel. The district court informed Loy that an attorney would be appointed for
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him if he could not afford one, but that if he could afford an attorney, he would
either have to hire counsel or represent himself. The court further reminded Loy
that he was an educated man with experience in the court system, and that he
faced a maximum penalty of twenty years on many counts of the indictment, and
ten years on another one.
The court then postponed the status conference until January 2, 2004,
instructing Loy to have his attorney present at that conference. The court further
told Loy “if you don’t have an attorney or can’t tell me what you’re going to do
about this by that time, bring your toothbrush,” and it admonished Loy “[a] man
of your intellectual[] background and experience gets very little tolerance from
me when they don’t exercise that and common sense and do what you’re supposed
to do. Playing around with the Federal courts is not going to work. Do you
understand?” Id. at 188. Loy responded that he understood. Gradert stated, “I
know Mr. Loy had meant no disrespect to the Court. He’s had financial
difficulties that have prevented him from being able to get counsel retained, but
he’s taken care of those financial requirements, and I think it shouldn’t be a
problem at this time.” Id. at 189-90. 2
2
The government also informed the court at the December 31 status
conference that it was having difficulty contacting Loy, inasmuch as his home
telephone had been disconnected and Loy repeatedly failed to answer his cell
phone.
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At the January 2, 2004, status conference, Loy again informed the court
that he did not have counsel. An assistant public defender told the court that Loy
was attempting to sell some property to obtain the necessary funds and that the
sale would be complete by the following Monday. Loy told the court that, as of
then, he lacked the money to pay an attorney. The court accordingly appointed
Mike Hepperly, a member of the panel of attorneys available to be appointed by
the court to represent defendants who cannot afford counsel under the Criminal
Justice Act (“CJA”), 18 U.S.C. § 3006A, to represent Loy. Hepperly entered his
appearance as appointed counsel. Loy informed the court that he had discussed
personally retaining Hepperly after he obtained sufficient funds. The court then
scheduled another status conference for January 5, 2004.
Represented by Hepperly, Loy appeared at the January 5 status conference
and filed a motion to continue the trial. The district court granted a 120-day
continuance. Hepperly informed the court that he had discussed with Loy the
financial affidavit Loy would need to file to retain appointed counsel and
discovered that Loy did not qualify for appointed counsel because his annual
income was between $80,000 and $100,000. Hepperly thus told the court that he
had advised Loy not to fill out the financial affidavit because “[h]e clearly makes
too much income and has too many assets . . . to be able to have a CJA . . .
lawyer.” R. Vol. II at 237. Loy again stated that he wanted to retain Hepperly
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once he had sufficient funds to pay him. Trial was rescheduled for May 18, 2004.
The court scheduled another status conference for January 13.
At the January 13 status conference, Hepperly told the court that he had not
yet been personally retained by Loy, and that he was still a CJA-appointed
counsel. Hepperly asked that the status conference be continued for a week so he
could clarify his status as Loy’s counsel. The court again urged Loy to obtain
counsel, stating “time’s running out for you to get somebody to get in here and
give you the representation that you—any defendant deserves.” Id. at 246-47.
The court continued the status conference until January 20, stating “[a]nd at that
time, I’ll expect you to have counsel in view of your statements that you’re able
to pay for counsel.” Id. at 247. The following exchange then occurred between
the court and Loy:
THE COURT: Once more. Again, I’m continuing this case in
abundance of precaution to see that you have adequate counsel.
DEFENDANT LOY: Yes, sir.
THE COURT: If that isn’t arranged, then we’re—you have two
alternatives; you’ll be representing yourself or your very adequate
counsel retained.
DEFENDANT LOY: Yes, sir, Your Honor.
THE COURT: And as I told you, I don’t recommend you represent
yourself.
DEFENDANT LOY: That’s correct, Your Honor.
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THE COURT: Even as well trained as you are and the background as
a CPA and as a person familiar with the workings of our judicial
system.
Id. at 247-48.
At the January 20, 2004, status conference the court asked Loy and
Hepperly if arrangements for counsel had been made and was told that they had
not been. When asked by the court for an explanation, Loy responded, “Your
Honor, I’m not yet able to retain Mr. Hepperly, and so I’m ready to proceed today
representing myself, Your Honor.” Id. at 252. The following exchange then
occurred:
THE COURT: Well, we’ve gone over that before, and I’ll remind
you of all the things we had told you—Judge Bostwick told you, but
you—you’re ready to proceed on your own behalf?
THE DEFENDANT: (Nodded head up and down.)
THE COURT: All right. For your services, Mr. Hepperly, I will
make whatever arrangements are necessary.
MR. HEPPERLY: Certainly, Your Honor.
THE COURT: I appreciate your services. And I just want to remind
you, Mr. Loy, that any pretrial motions are to be filed by April 26th
of 2004. The trial is set for May 18th of 2004, and we will go to trial
on that day. If you have any discovery or need anything in the way
of—for your own defense, why, you should let us know.
Judge Bostwick went over very carefully with you, didn’t he,
the problems about your pro se representation and the dangers that
are involved with it?
THE DEFENDANT: Yes, sir, Your Honor, he did.
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THE COURT: You’re well aware of them, I take it.
THE DEFENDANT: Yes, sir, and he said that I was allowed to add
counsel any time during proceedings.
THE COURT: You can, but that will not be—will not be for the
purposes of delay.
THE DEFENDANT: Correct. That’s correct, Your Honor.
THE COURT: You understand that?
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: Have you ever represented yourself in a criminal
case?
THE DEFENDANT: No, sir, Your Honor.
THE COURT: I’ve explained to you the punishment if you’re found
guilty in this case and what it is, you understand.
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: And have you ever had anything to do with the
guidelines?
THE DEFENDANT: No, sir, Your Honor.
THE COURT: Well, the library is where you can find them. You
know that.
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: You know you’re on your own, that the Court can’t
help you.
THE DEFENDANT: Yes, sir, Your Honor, that’s correct.
-9-
THE COURT: Have you had any experience with the federal rules of
criminal behavior—evidence?
THE DEFENDANT: No, sir.
THE COURT: They will apply to your case and what your evidence
may be.
THE DEFENDANT: Yes, Your Honor.
THE COURT: Well, like we’ve said before, and I’ve told you I think
it is my opinion that a trained lawyer would defend you far better
than you can represent yourself. I think it’s unwise for you to try.
THE DEFENDANT: Yes, Your Honor.
THE COURT: Of course you are familiar with certain phases of the
law, the tax law.
THE DEFENDANT: Yes, Your Honor.
THE COURT: You’re a CPA and accountant.
THE DEFENDANT: Yes, sir.
THE COURT: That’s—and while that has some elements of criminal
problems with it that you are probably familiar with, I don’t think
you’ve had anything to do with the rules of evidence before, have
you?
THE DEFENDANT: No, Your Honor.
THE COURT: Well, we’ve all told you we don’t think you should
represent yourself, and I don’t think repeating it here is going to do
any good.
THE DEFENDANT: Understood, Your Honor.
THE COURT: And is your decision entirely voluntary?
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THE DEFENDANT: Yes, sir.
THE COURT: Due to all the things I’ve previously told you, Judge
Bostwick has told you, your attorney has probably told you, the
government’s advised you about, you still desire to represent yourself
and give up your right to be represented by a lawyer.
THE DEFENDANT: Yes, Your Honor.
THE COURT: And your decision again is entirely voluntary.
THE DEFENDANT: That is correct.
THE COURT: Well, I find the defendant has knowingly and
voluntarily waived the right to counsel, and I will therefore permit
the defendant to represent himself.
You understand again when all motions in this case must be
filed.
THE DEFENDANT: Yes, Your Honor.
THE COURT: And when the trial is going to be.
THE DEFENDANT: Yes, Your Honor.
THE COURT: I’ve done this many times before with people. I do
want to indicate to you I’ve never had one acquitted who represented
himself.
THE DEFENDANT: I understand, sir.
Id. at 252-56. Hepperly then gave Loy a letter indicating that Hepperly no longer
was Loy’s counsel.
On April 19, 2004, the government filed a motion to continue the trial. The
district court scheduled a status conference for May 3 to consider the motion to
continue. Loy failed to appear at the May 3 conference, but telephoned the
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clerk’s office to inform the court that he was having problems with his car and
would be unable to attend. After discussing the government’s conflicts with the
May 18 trial date previously set, the court granted the motion to continue the trial
until June 29, 2004.
On June 24, during a scheduled change of plea hearing, 3 Loy told the court
that he had discussed a plea agreement with the government, but was not prepared
to enter into it at that time. On June 29, the day scheduled for the commencement
of the trial, Loy failed to appear. The government told the court that the FBI
agent assigned to the case had received a call at 10:00 p.m. the night before (June
28) from Darla Peterson, Loy’s girlfriend, stating that Loy had checked into the
hospital with chest pains and would not be appearing in court on the 29th.
Government counsel observed that, while it was possible Loy had a heart attack
which prevented his appearance at trial, it was also possible that this was another
ploy to delay the proceedings. The court then acquiesced in the government’s
request to issue a forty-eight hour bench warrant for Loy, to allow an
investigation into Loy’s alleged medical problems. The court also issued a
subpoena to obtain Loy’s medical records from the hospital and from Loy’s
3
Apparently, on June 14, government counsel, Assistant United States
Attorney Metzger, contacted the court and informed the court that the parties had
reached a plea agreement. Accordingly, the court scheduled a change of plea
hearing for June 24.
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physician. On July 1, 2004, an arrest warrant was issued for Loy. On July 3, Loy
voluntarily surrendered to the Sedgwick County detention facility.
On July 6, Loy appeared with Gradert before Magistrate Judge Bostwick for
a hearing on whether Loy’s failure to appear at his trial was a violation of the
conditions of his pretrial release. The following exchange occurred:
THE COURT: . . . .Before I go any further, you have said
throughout these proceedings that you wish to proceed without a
lawyer or you were retaining a private lawyer.
[THE DEFENDANT]: Yes, Your Honor.
THE COURT: All right. As I recall, you appeared first in front of
Judge Humphreys and told her you were going to retain Mr.
Christopher Meek and it was a matter of selling some real estate and
you would get him hired.
[THE DEFENDANT]: Yes, Your Honor. I was told that I didn’t
qualify earlier because of my income but my income has changed
drastically and therefore I think I might qualify now, sir.
THE COURT: Did you sell the real estate?
[THE DEFENDANT]: No sir. I actually didn’t have the real estate
in my name. It was family that was trying to get the funds.
THE COURT: So are you asking me now to consider the
appointment of counsel for you?
[THE DEFENDANT]: Yes, Your Honor.
THE COURT: I have a Financial Affidavit Form which bears your
signature and today’s date.
[THE DEFENDANT]: Yes, Your Honor.
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THE COURT: Do you recall providing information concerning your
assets, your employment and your income to Pretrial Services before
the hearing today?
[THE DEFENDANT]: Yes, Your Honor.
THE COURT: Was everything that you told them about your
income, your assets, your expenses and your employment true and
correct?
[THE DEFENDANT]: Yes, Your Honor.
....
THE COURT: All right. It indicates here that through June of this
year . . . [y]ou earned a total of $23,000.
[THE DEFENDANT]: Yes, sir.
....
THE COURT: Who is ML & Company?
[THE DEFENDANT]: That’s an accounting firm there in Pittsburgh
that I and my brother own.
THE COURT: So you own an ownership interest in that firm?
[THE DEFENDANT]: Well, I have, yes, an ownership interest in
that firm; yes, sir.
....
THE COURT: [C]an you tell me what you believe your half interest
in that company is worth today?
[THE DEFENDANT]: Probably 10 to $20,000, my share.
....
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THE COURT: Now, when you were first interviewed by Pretrial
Services, you indicated you were going to retain your own counsel
and at that time you told the Pretrial Services officer . . . that you
were earning $8,000 a month from ML & Company and that your
total monthly expenses were three or $4,000.
[THE DEFENDANT]: That is correct, sir.
THE COURT: What has changed since that time?
[THE DEFENDANT]: The publicity surrounding my federal
indictment has drastically limited the ML & Company income.
....
THE COURT: And the real estate that you told Judge Humphreys
you were in the process of selling to get cash to retain Mr.
Christopher Meek when you appeared in front of her in November of
2003, you now say is owned by somebody else?
[THE DEFENDANT]: In the family, yes, sir. It’s not owned by me.
It never was owned by me.
THE COURT: Who did own it?
[THE DEFENDANT]: It was my ex-wife and her family. Not
officially divorced, Your Honor, but separated. Have been separated
for about six years, Your Honor.
Id. at 326-32. Magistrate Judge Bostwick observed that, had Loy appeared before
him the first time making these representations concerning his financial condition,
and if they were correct, Loy would probably have been provided appointed
counsel. However, given the trial schedule, the magistrate judge declined to
appoint counsel.
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With respect to his failure to appear for trial on June 29, Loy testified that
he did not appear in court because he experienced chest pains the evening of June
28 and was admitted to the intensive care unit of a hospital for testing and was
released on June 29 at 4:15 p.m. The government responded that Loy’s hospital
records indicated he had normal vital signs when he was admitted complaining of
chest pains, and that a heart catheterization procedure indicated that the chest
pain was not caused by any cardiac condition. The government further informed
the court that Loy did not call the district court, the U.S. Attorney’s office or the
U.S. Probation Office when he was dismissed from the hospital, but instead went
to a baseball game. The government asserted that Loy failed to call anyone on
June 30 or July 1, and only finally contacted the FBI on the evening of July 2. 4
The magistrate judge found that, based on that evidence, Loy violated the
conditions of his release, and the judge revoked Loy’s bond and ordered him
detained pending trial.
Following the hearing before Magistrate Judge Bostwick, Loy,
accompanied by Gradert, appeared in district court for a status hearing. The
district court observed that the case was set for trial the following day, July 7,
2004. Loy requested that, in light of the Supreme Court’s recent decision in
4
There was testimony that Loy left a message with the U.S. Attorney’s
office late in the afternoon of July 1, but he failed to contact the FBI until the
next day.
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Blakely v. Washington, 542 U.S. 296 (2004), 5 the court appoint counsel to
represent him. Gradert indicated his willingness to represent Loy, but that he
would need time to prepare. The government argued that Loy was simply trying
to delay the trial and that he had done the same thing—continually claiming he
was going to get a lawyer but then failing to do so—in criminal proceedings filed
against him by the Kansas Securities Commission and in at least two civil
proceedings.
The district court found that the government’s assertion was accurate and
supported by the record. It accordingly found that Loy was simply employing a
tactic to avoid the responsibility of trial and to delay or prevent resolution of his
case. The court then appointed Gradert to serve as standby counsel and released
Loy to a halfway house so he could prepare for his trial to commence the next
day.
Meanwhile, earlier that day, Loy and Gradert had discussed the possibility
of a plea agreement. At approximately 4:00 p.m., after government counsel and
Loy and Gradert had discussed a plea agreement for some one and one-half hours,
the court informed Loy that he had ten minutes to decide whether to enter a guilty
The Supreme Court in Blakely held that in a state prosecution the Sixth
5
Amendment mandates that the maximum permissible sentence for a defendant be
determined solely on the basis of “facts reflected in the jury verdict or admitted
by the defendant.” 542 U.S. at 304.
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plea. Shortly thereafter, Loy informed the court that he wished to plead guilty.
The district court accordingly reconvened the hearing, and Loy pled guilty to one
count of mail fraud, in violation of 18 U.S.C. § 1341, two counts of wire fraud, in
violation of 18 U.S.C. § 1343, and one count of transportation of stolen property,
in violation of 18 U.S.C. § 2314.
At the plea hearing, with Gradert as Loy’s standby counsel, the district
court reviewed the plea agreement with Loy, including the provisions of the
agreement waiving his right to appeal his conviction and sentence and waiving his
rights under Blakely to have sentencing enhancements found by a jury beyond a
reasonable doubt. The district court reviewed the counts of the indictment and
the elements of each offense charged. The court further reviewed the factual
statement contained in the plea agreement and Loy, under oath, admitted that the
facts contained in the factual statement were accurate and truthful. The court
reviewed the sentencing enhancements specified in the factual statement, and Loy
admitted that the factual statements relating to the sentencing enhancements were
accurate and truthful. Loy further admitted that he knew he had the right to plead
not guilty and that by pleading guilty he would be giving up any possible defenses
to the charges against him. The court reviewed the other rights Loy would be
giving up by pleading guilty. Loy admitted that he understood that the sentence
to be imposed on him would be determined “solely by the United States district
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judge and that the United States cannot and has not made any promises or
representations to [him] as to the sentence” he would receive. R. Vol. II at 306.
Loy further admitted that he had been furnished a copy of Blakely, that he had
discussed it with his standby counsel, that he agreed his sentence would be
determined according to the sentencing guidelines and that he had no questions
concerning Blakely. He also acknowledged that he would not be allowed to
withdraw his guilty plea, and that he had waived any appeal or collateral attack on
his conviction and sentence. He told the court that he had had sufficient time to
discuss his case, the evidence, and the plea agreement with standby counsel and
that the agreement was the only one he had entered into with the government.
Loy further admitted he had entered into the plea agreement freely and
voluntarily, and the court reminded him that the court did not later “want to hear
that you now think that you’ve been pressured into signing this agreement. Have
you?” to which Loy responded “No, sir.” Id. at 311-12. The court reviewed the
potential penalties faced by Loy, and Loy acknowledged that he understood such
penalties. The court and Loy then had the following exchange:
THE COURT: And, Mr. Loy, you know I’m not going to let anybody
plead guilty who maintains he’s innocent. With that in mind, are you
telling the Court that you’re guilty?
DEFENDANT LOY: Yes, Your Honor.
THE COURT: You’re not claiming to be innocent?
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DEFENDANT LOY: That is correct.
THE COURT: And you want to plead guilty and have the Court
accept that plea and have the clerk enter a plea of guilty; is that
right?
DEFENDANT LOY: Yes, Your Honor.
Id. at 316. Loy accordingly pled guilty to counts one, two, three and eleven of the
indictment.
After finding that Loy’s plea was freely and voluntarily made because Loy
was guilty, and was not made “out of ignorance, fear, inadvertence, or coercion”
and was made “with a full understanding of its consequences,” the court accepted
his plea of guilty to the four counts. Id. at 319.
On July 12, 2004, a status conference was held and the court issued an
order modifying Loy’s conditions of release to permit him to stay in a halfway
house for one month.
On August 4, 2004, attorney Ken Kerns entered an appearance in the case.
On August 12, the court granted Loy’s motion to further modify the conditions of
release so he could remain at liberty and work four days a week. On September 3,
Loy filed a motion for an extension of time to file objections to the presentence
report (“PSR”), which the court granted.
On September 23, Loy, through counsel, filed a motion to withdraw his
guilty plea. He argued that he was innocent, that he lacked the intent to defraud
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any of his alleged victims, that he pled guilty only to get himself out of jail, that
he felt intimidated by the district court when he pled guilty, and that he felt he
had little choice with trial scheduled to commence the next day. He further
claimed that he had never waived his right to counsel and did not receive
effective assistance of counsel, and that his guilty plea was not knowing and
voluntary but was made out of fear.
The government responded to Loy’s motion to withdraw his plea, arguing
that the status of Loy’s legal representation was solely the result of his own
actions and representations to the court that he could and would retain his own
attorney, and that his guilty plea was knowing and voluntary. In his reply to the
government’s response, Loy argued that he had too much money to qualify for
appointed counsel but not enough to hire his own counsel, and that his failure to
retain counsel was not a ploy or delaying tactic. He further argued that the
government had failed to provide him with discovery as required by a court
scheduling order.
On October 25, 2004, a motion and sentencing hearing was held, at which
Loy was represented by attorney Kerns. Kerns argued that Loy felt pressured and
coerced and that he entered into the plea agreement in order to get out of jail. He
further argued that Loy got no benefit from the plea agreement. Loy presented an
affidavit from his girlfriend, Darla Peterson, in which she stated that she and Loy
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had attempted to sell 7.8 acres of land in Crawford County, Kansas, beginning in
February 2004, but that it had not been sold until July 2004, at which time funds
from that sale were used to retain attorney Kerns. 6 Loy further argued that the
government had failed to provide him with discovery until the Friday before trial,
and therefore any delay was at least partially the government’s fault.
The government proffered that, with respect to the discovery issue, at the
conclusion of the last status conference with Loy in January 2004 the government
specifically told Loy that several boxes of documents were available at the U.S.
Attorney’s office for his review. The government further averred that in January
2004 it had notified Loy that it would provide him with all the marked trial
exhibits on the Friday before trial, and they so notified him on that Friday. The
government also argued that Loy received a benefit from the plea agreement
because the government had agreed not to bring additional charges against Loy,
including tax charges resulting from an active tax evasion investigation of Loy.
Finally, the government argued that Loy’s conduct with respect to obtaining
counsel was a “cat and mouse” game with the district court, designed to delay
going to trial, that Loy’s guilty plea was knowing and voluntary, and that Loy’s
6
This property was different from the property owned by Loy’s “ex-wife”
and her family, which he had previously told the court was available for sale to
generate funds for an attorney.
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demeanor during the plea hearing indicated that he was not afraid, intimidated or coerced.
The district court denied Loy’s motion to withdraw his guilty plea, finding:
that Loy “had the financial means throughout this case to retain counsel” but had
“consistently refused to make appropriate arrangements with an attorney”; that
Loy had “purposefully refrained from hiring an attorney” to postpone resolution
of his case; that Loy had refused to file an affidavit supporting appointment of
counsel until the last minute; that Loy knowingly and voluntarily waived the right
to assistance of counsel and voluntarily and knowingly decided to represent
himself; that the financial affidavit Loy finally filed seeking to qualify for
appointed counsel was “vague, incomplete and in some respects false” and that
Loy had failed to show he was financially unable to obtain counsel; that Loy’s
“belated claim of financial inability was made in bad faith for the purpose of
obstructing” his upcoming trial; that Loy’s claim of innocence is “flatly
contradicted” by his statements under oath at the plea hearing and in the plea
agreement; that granting the motion to withdraw the guilty plea would result in
prejudice to the government; that Loy had delayed more than two months before
filing the motion to withdraw; that Loy’s plea was knowing and voluntary; that,
based upon the court’s observation of Loy throughout the entire proceeding, Loy
was not intimidated but, rather, was “confident and sure of himself at each court
proceeding”; that Loy’s claimed lack of preparedness for his trial was “due solely
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to his dilatory conduct”; that granting the motion to withdraw would result in a
tremendous waste of judicial resources; that the government had not improperly
deprived Loy of any discovery; and that there was accordingly no fair and just
reason to permit withdrawal of the plea. Id. at 382-84. The court’s subsequent
written order largely reiterated these findings.
The court then conducted a sentencing hearing, at which Loy was sentenced
to sixty months in prison on counts one, two and three, and sixty-three months on
count eleven, to be served concurrently with the first sentence, for a total of sixty-
three months in prison, followed by two years of supervised released, and he was
ordered to pay $239,752.32 in restitution. After Loy filed his appeal of that order
in our court, the government filed a motion in our court to enforce the plea
agreement. This court then issued an order reserving judgment on the
government’s motion and ordering briefing on the merits to proceed. We
accordingly have this appeal and the government’s motion before us.
Loy argues on appeal that the district court erred in denying his motion to
set aside his guilty plea because he is innocent, he was denied counsel, and his
plea was not voluntary and knowing because it was made out of fear.
DISCUSSION
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“‘We review the district court’s denial of a motion to withdraw a guilty
plea for an abuse of discretion.’” United States v. Yazzie, 407 F.3d 1139, 1142
(10th Cir.) (en banc) (quoting United States v. Jones, 168 F.3d 1217, 1219 (10th
Cir. 1999)), cert. denied, 126 S. Ct. 303 (2005). A court considering whether a
defendant has presented a “fair and just reason for withdrawal” of a guilty plea
must consider the following factors:
(1) whether the defendant has asserted his innocence; (2) whether
withdrawal would prejudice the government; (3) whether the
defendant delayed in filing his motion, and if so, the reason for the
delay; (4) whether withdrawal would substantially inconvenience the
court; (5) whether close assistance of counsel was available to the
defendant; (6) whether the plea was knowing and voluntary; and (7)
whether the withdrawal would waste judicial resources.
Id. (quoting United States v. Sandoval, 390 F.3d 1294, 1298 (10th Cir. 2004)
(quotation marks omitted)). As indicated in our lengthy recitation of the district
court’s findings and conclusions in the hearing on Loy’s motion to withdraw his
guilty plea, the court carefully considered all of those factors in denying that
motion. We agree fully with the district court’s conclusions, as they are amply
supported by the record, including the district court’s conclusion that Loy’s guilty
plea was knowing and voluntary, and not the product of fear or intimidation. We
address additionally only the issue of whether Loy had adequate assistance of
counsel in entering into the plea agreement, including the question of whether he
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knowingly and voluntarily waived his right to counsel and decided to proceed pro
se.
Loy argues that he did not waive his right to counsel, and that his standby
counsel was inadequate to satisfy the Sixth Amendment’s requirement of effective
assistance of counsel. “To ascertain whether [a defendant] knowingly and
intelligently waived his right to counsel, we must consider ‘the total
circumstances of the individual case including background, experience and the
conduct of the accused person.’” United States v. Weninger, 624 F.2d 163, 164
(10th Cir. 1980) (quoting United States v. Warledo, 557 F.2d 721, 727 (10th Cir.
1977)). For such a waiver to be valid, it “‘must be made with an apprehension of
the nature of the charges, the statutory offenses included within them, the range
of allowable punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a broad
understanding of the whole matter.’” Id. (quoting Von Moltke v. Gillies, 332
U.S. 708, 723-24 (1948)).
The record in this case reveals that Loy, an educated professional with
some familiarity with the workings of the judicial system, repeatedly assured the
court that he was in the process of retaining counsel, only to appear at the next
scheduled court appearance without such an attorney. He also repeatedly assured
the court that he could afford an attorney. The district court judge repeatedly
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warned Loy of the difficulties he would encounter without an attorney, and, when
he represented to the court that his financial condition had changed such that he
thought he would qualify for appointed counsel, the court promptly took steps to
provide such counsel. When it turned out that Loy did not qualify for appointed
counsel, the court permitted him yet more time to make arrangements to retain
counsel. Only when Loy appeared yet again without counsel and asked to be
permitted to represent himself did the court conclude that Loy had knowingly and
voluntarily waived his right to assistance of counsel, after warning Loy repeatedly
of the dangers inherent in representing himself, cautioning him not to do so, and
inquiring whether the decision he was making was voluntary.
“A defendant’s right to obtain counsel of his choice must be balanced
against the need for the efficient and effective administration of criminal justice.”
Id. at 166. And while our court has “recognized a right of a defendant to proceed
without counsel,” id. (further quotation omitted), a defendant
may not use this right to play a “cat and mouse” game with the court
. . . or by ruse or stratagem fraudulently seek to have the trial judge
placed in a position where, in moving along the business of the court,
the judge appears to be arbitrarily depriving the defendant of
counsel.
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Id. (further quotation omitted). We find that Loy engaged in just such a “cat and
mouse” game. We hold that his “stubborn failure to hire an attorney constituted a
knowing and intelligent waiver of the right to assistance of counsel.” Id. at 167. 7
CONCLUSION
For the foregoing reasons, we AFFIRM the denial of Loy’s motion to
withdraw his guilty plea, we GRANT the government’s motion to enforce the plea
agreement and we DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
7
Loy argues that the district court failed to give proper consideration to
affidavits filed by Meek and Gradert. His standby counsel Gradert filed one, in
which he expressed his belief that Loy “entered into the plea of guilty simply to
get released on bond. . . . [He] was extremely stressed about the position he was
in and pled because he felt he had no other option.” Gradert Aff. ¶ 11, R. Vol. I
at 65. Meek also filed an affidavit, describing his efforts in attempting to arrange
for Loy to hire a very experienced attorney who charged a minimum fee of
$75,000, but stating that Loy was never able to “come up with enough money.”
Meek Aff. ¶ 7, id. at 114. Meek also “was concerned about him representing
himself.” Meek Aff. ¶ 8, id. Neither of these attorneys was able to witness the
entire course of Loy’s conduct. The district court was able to witness that entire
course of conduct, and it clearly found that Loy’s statements and conduct
demonstrated an intelligent and knowing waiver of his right to counsel.
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