United States v. Jeffrey Cohen

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4780
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY BRIAN COHEN,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
William D. Quarles Jr., District Judge. (1:14-cr-00310-WDQ-1)
Argued: January 25, 2018 Decided: April 25, 2018
Amended: April 25, 2018
Before KING, FLOYD, and THACKER, Circuit Judges.
Dismissed in part and affirmed in part by published opinion. Judge King wrote the
opinion, in which Judge Floyd and Judge Thacker joined.
ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Clarksburg, West Virginia, for Appellant. Harry Mason Gruber, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Joyce K. McDonald, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
KING, Circuit Judge:
Jeffrey Brian Cohen appeals the criminal judgment entered against him in the
District of Maryland in December 2015. Cohen, who represented himself pro se during
most of the protracted criminal proceedings in the district court, pleaded guilty in June
2015 to the offenses of wire fraud, aggravated identity theft, making false statements to
insurance regulators, and obstruction of justice. Those offenses were among thirty-one
charges lodged against him by the grand jury, all stemming from a massive insurance
scam that caused losses exceeding $100,000,000. Cohen was sentenced to an aggregate
term of 444 months in prison. Notwithstanding the appeal waiver in his plea agreement
with the United States Attorney, Cohen pursues this appeal. The issues we must resolve
include the applicability of Cohen’s appeal waiver, plus a right-to-counsel contention
relating to his sentencing. As explained below, we dismiss in part and affirm in part.
I.
A.
During the relevant period, Cohen was the president and chairman of an entity
named Indemnity Insurance Corporation RRG, and he had previously controlled its
predecessor, Indemnity Insurance Corporation of DC, RRG (collectively “IIC”). IIC
marketed and sold general liability and other types of insurance to individuals and
businesses in the entertainment industry. As such, IIC was obliged to submit quarterly
and yearly financial statements to insurance regulators. Such regulators are responsible
for protecting policyholders and the public through their oversight of the insurance
2
industry and by making certain that insurers such as IIC are able to perform their
coverage obligations.
Beginning in 2008 and continuing through at least 2013, Cohen engaged in a
multi-faceted scheme to defraud IIC policyholders and the public by misrepresenting the
financial status of IIC. In furtherance thereof, Cohen created a web of false and
fraudulent financial documents, including bank statements, letters of credit, reinsurance
documents, financial statements, and account balances. In carrying out his fraud scheme,
Cohen sent misleading and fraudulent representations to auditing firms and others,
seeking and securing favorable opinions on the financial standing of IIC. Cohen then
touted IIC’s false financial standing and inflated ratings to current and potential
policyholders. As a result of the scheme, IIC received more than $100,000,000 in
insurance premiums.
On June 24, 2014, after ferreting out Cohen’s fraud scheme and related criminal
activities, the FBI and the federal prosecutors in Maryland secured an indictment against
Cohen from the grand jury in Baltimore. According to the authorities, that indictment
and Cohen’s arrest upended his intentions to harm public officials. During their
investigation, federal agents discovered that Cohen had purchased such items as a long
range tactical rifle, plus ammunition and a night vision device. The agents also
ascertained that Cohen had researched homemade bombs, purchased ammonium nitrate,
and made audio recordings about plans to attack public officials. As a result, Cohen has
been in federal custody since his arrest in June 2014.
3
The third superseding indictment of December 2, 2014 — the operative indictment
in this appeal — charged Cohen with thirty-one offenses (the “Indictment”). J.A. 68-92. 1
According to the Indictment, Cohen transmitted by wire a vast number of false and
misleading communications in furtherance of his fraud scheme. Cohen also fraudulently
used the identities of other persons to lend credibility to false financial documents. To
conceal the actual financial condition of IIC, Cohen presented fraudulent financial
statements to insurance regulators in both Delaware and the District of Columbia. As his
fraud scheme began to unravel, Cohen threatened witnesses in an endeavor to obstruct
their communications of his wrongdoing to the authorities. The Indictment exposed
Cohen to the forfeiture of more than $100,000,000.
B.
Cohen initially retained his defense counsel, but those lawyers withdrew after the
grand jury returned its initial indictment. The district court then appointed the federal
public defender to represent Cohen. In early November 2014, Cohen moved to terminate
his counsel and to represent himself pro se. The public defender then moved to withdraw
from the representation, advising the court that Cohen’s request to represent himself was
unequivocal.
1
Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
4
The district court referred the representation motions to a magistrate judge.
During a so-called Faretta hearing, 2 Cohen confirmed to the magistrate judge the
following:
• he had studied law and previously represented himself in court;
• he understood the charges in the Indictment, the maximum
permissible penalties, and that the Sentencing Guidelines applied;
• he understood that the trial judge could not provide legal advice or
assist him on how to proceed; and
• he knew that the proceedings would be complex, conducted
according to the rules of evidence and criminal procedure, and that a
trained lawyer might better represent him.
See J.A. 97-100. Cohen advised the magistrate judge that he had decided to represent
himself voluntarily “after much thought and deliberation.” Id. at 100. At the hearing’s
conclusion on November 17, 2014, the judge granted the public defender’s motion to
withdraw and authorized Cohen to represent himself pro se. Nevertheless, the judge
appointed a “standby counsel” to assist Cohen’s pro se efforts during the proceedings. 3
2
A Faretta hearing draws its name from a 1975 Supreme Court decision relating
to pro se representation in criminal proceedings. Such a hearing seeks to determine
whether the accused, who is seeking to manage his own defense, understands the
consequences of waiving his Sixth Amendment right to counsel and is relinquishing that
right knowingly and intelligently. See Faretta v. California, 422 U.S. 806, 835 (1975).
Cohen convinced the magistrate judge that the Faretta criteria had been satisfied.
3
In McKaskle v. Wiggins, the Supreme Court sought to define the role of a
standby counsel. See 465 U.S. 168, 184 (1984). As explained therein, the standby
counsel’s duties include relieving the judge of the obligation to “explain and enforce
basic rules of courtroom protocol” and assisting the defendant in “overcoming routine
obstacles that stand in the way of the defendant’s achievement of his own clearly
indicated goals.” Id. In appointing a standby counsel for Cohen, the magistrate judge
(Continued)
5
C.
1.
In late November 2014, after the district court authorized his pro se self-
representation, Cohen challenged the pretrial seizures of his assets by the federal
authorities and sought relief therefrom. Cohen asserted, inter alia, that the grand jury had
been rigged and contended that there was no nexus between the alleged offenses and the
seized assets. The government, on the other hand, emphasized that the seizures had been
made pursuant to duly issued warrants and were predicated on judicial findings of
probable cause. On January 22, 2015, the magistrate judge conducted proceedings on
several pending issues, including the seized property questions. The judge then
recommended the denial of that challenge, concluding that the pretrial seizures had been
properly made. Although Cohen sought reconsideration, the court adopted the magistrate
judge’s recommendation.
2.
Cohen made other efforts to gain access to the seized assets. In February 2015, he
moved for another hearing on the propriety of those seizures, relying on our decision in
explained that the standby lawyer would not actually defend Cohen in the criminal
proceedings and that the judge would not offer him legal advice. The judge emphasized
that, because Cohen was being detained pending trial, the standby counsel would be
available to answer questions, assist with discovery, and perform other tasks that are
difficult for an accused in custody.
6
United States v. Farmer, 274 F.3d 800 (4th Cir. 2001). 4 Cohen requested the district
court to rule that the government had restrained his untainted assets without probable
cause, thereby undermining his use of those assets to hire standby counsel of his choice.
Cohen argued that he was entitled to a Farmer hearing because he wanted to terminate
his appointed standby counsel, and he could not afford to hire a standby counsel of his
choice without the seized assets.
The government opposed Cohen’s Farmer hearing request, explaining that the
asset seizures were supported by probable cause and that Cohen had failed to show that
the seized assets would not be subject to forfeiture should he be convicted. The
prosecutors emphasized that Cohen had already waived his right to counsel.
Acknowledging that Cohen could change his mind and again request an appointed
lawyer, the prosecutors asked the district court to assess whether Cohen intended to
abandon his pro se status and reassert his right to counsel. The government thus
suggested that an additional Faretta inquiry would best ensure that Cohen understood his
right to counsel and his waiver of that right.
Cohen opposed another Faretta hearing being conducted by the district court,
arguing that the prosecutor’s suggestion was simply an effort to “obstruct [his] right to
4
In our Farmer decision in 2001, we recognized that, although an accused does
not have a Sixth Amendment right to use illegally procured funds to secure legal
representation, due process requires a pretrial hearing on the propriety of an asset seizure
if the accused can show that a portion of the restrained assets are untainted. To trigger a
Farmer hearing, the defendant must show that he needs the restrained assets to retain a
lawyer of his choice, and that the government seized his untainted assets without
probable cause. See United States v. Farmer, 274 F.3d 800, 803-805 (4th Cir. 2001).
7
self representation.” J.A. 2280. Cohen maintained that the prosecutors had “no right to
question [his] ability to properly defend himself” and that “any further action . . . on [the
Faretta] issue would be a waste of court resources.” Id. Cohen explained that he would
continue to represent himself and that he was fully aware of his rights and the risks of
self-representation. Id. Cohen emphasized that, by his Farmer hearing request, he
sought “funds to pay for a new standby counsel” of his choice. Id. Cohen also asserted
that he needed the Farmer hearing because his appointed standby counsel was
“incompetent” and “unprofessional.” Id.On April 17, 2015, the magistrate judge authorized Cohen’s standby counsel to
withdraw, but denied his Farmer hearing motion. The judge explained that Cohen had
failed to make a prima facie showing that the seized assets were untainted. When again
asked if he wanted to continue to represent himself, Cohen reconfirmed that position.
Cohen then appealed those rulings to the district court which, in early May 2015,
sustained the magistrate judge and denied the Farmer hearing request. In so ruling, the
court explicitly recognized that Cohen was seeking only to hire his standby counsel, and
emphasized that Cohen was not seeking to retain an attorney to actually defend him. In
the court’s view, the Farmer decision was unavailing for Cohen because, as the Supreme
Court has recognized, there is no constitutional right to a standby counsel of a
defendant’s choosing. See United States v. Cohen, No. 1:14-cr-0310 (D. Md. May 7,
2015), ECF No. 324 at 90 (relying on Mckaskle v. Wiggins, 465 U.S. 168, 183 (1984)).
8
On April 20, 2015, the court nevertheless appointed a new standby counsel to assist
Cohen in the district court proceedings. 5
D.
1.
On June 1, 2015, Cohen went to trial before a jury in Baltimore. Four days later,
Cohen entered into a plea agreement with the United States Attorney, agreeing to plead
guilty to Counts One, Twenty, Twenty-Four, and Twenty-Eight of the Indictment (the
“Plea Agreement”). J.A. 322-36. Those offenses included wire fraud, in violation of 18
U.S.C. § 1343 (Count One); aggravated identity theft, in violation of 18 U.S.C. § 1028A
(Count Twenty); making false statements to an insurance regulator, in violation of
18 U.S.C. § 1033(a) (Count Twenty-Four); and obstruction of justice, in violation of 18
U.S.C. § 1512(b) (Count Twenty-Eight). The Plea Agreement contains a fulsome
statement of admitted facts that readily establish Cohen’s guilt on each of the four
offenses. 6
5
During the district court proceedings, the court appointed three separate lawyers
to serve as Cohen’s standby counsel. The first two appointees were authorized by the
court to withdraw from their standby service of Cohen. Cohen’s third standby counsel
later served briefly as his first appointed counsel in this appeal.
6
By paragraph 6 of the Plea Agreement of June 5, 2015, the United States
Attorney and Cohen recite, “This Office and the defendant understand, agree and
stipulate to the Statement of Facts set forth in Attachment A, which this Office would
prove beyond a reasonable doubt.” The referenced Attachment A, entitled “Cohen
Factual Stipulation,” constitutes five pages of the fifteen-page Plea Agreement. See J.A.
332-36. Cohen therein admitted to a litany of incriminating facts underpinning each of
the offenses to which he pleaded guilty. For example, Cohen acknowledged that he had
knowingly devised and implemented a massive fraud scheme to obtain insurance
(Continued)
9
The Plea Agreement contains two sentencing stipulations. That is, Cohen was
subject to a base offense level of 7 on Count One and a mandatory consecutive sentence
of two years on Count Twenty. There are no stipulations as to sentencing on Counts
Twenty-Four and Twenty-Eight. The right of the parties to seek Guidelines adjustments
was reserved, including possible adjustments for loss amount, number of victims,
sophisticated means, leadership role, and obstruction of justice.
The Plea Agreement includes two waiver provisions. First, Cohen waived his trial
related rights by pleading guilty. The Plea Agreement also explains Cohen’s waiver of
appeal by specifying that if he
were found guilty after a trial, [Cohen] would have the right to appeal the
verdict and the [c]ourt’s pretrial and trial decisions on the admissibility of
evidence. . . . By pleading guilty, [Cohen] knowingly gives up the right to
appeal the verdict and the [c]ourt’s decisions.
J.A. 325-26 (emphasis added). The Plea Agreement provides that, “[b]y pleading guilty,
[Cohen] will be giving up all of these rights, except the right set forth in the ‘Waiver of
premiums by false and fraudulent pretenses. In Cohen’s words, he engaged in a “mini
Ponzi thing” with another insurance company in order to obtain operating cash. In
carrying out his fraud scheme, Cohen identified fake policyholders and created fake
financing applications for those phony policyholders. He also fabricated a fake business
manager, to manage those fake insurance financing applicants, by falsely using the
identity of a former IIC attorney and stamping that attorney’s name on spurious
documents used to further the scheme. Cohen then submitted phony confirmations —
misusing the identity of a bank employee — to defeat legitimate efforts made by
insurance regulators to verify IIC’s assets. When the Insurance Commissioner of
Delaware instituted civil proceedings against IIC, Cohen threatened that State’s
investigators in an endeavor to corruptly derail a criminal probe of his fraudulent
activities.
10
Appeal’ paragraph below, to appeal an illegal sentence.” Id. at 326. That waiver of
appeal paragraph provides in relevant part as follows:
In exchange for the concessions made by [the United States Attorney], the
defendant waives his rights to appeal as follows: the defendant knowingly
waives all right, pursuant to 28 U.S.C. § 1291, or otherwise, to appeal the
defendant’s conviction and whatever sentence is imposed.
Id. at 329 (emphasis added).
During the Rule 11 plea hearing, the district court ascertained that Cohen fully
understood the charges, the potential penalties, and the rights he was waiving by pleading
guilty. J.A 285-93. Cohen confirmed that he was giving up the right to “challenge any
defect in the indictment, any evidence that was seized, any statements that [he] made, or
anything of that nature.” Id. at 293. Cohen also agreed that he was entering his guilty
pleas voluntarily and had not been coerced to do so. Id. at 294-95. Cohen’s then standby
lawyer advised the court that Cohen understood the Plea Agreement, that Cohen had
personally negotiated the Agreement and the supporting statement of facts, and that
Cohen was “well aware of all the facts in both.” Id. at 311-12. Importantly, the court
explicitly addressed the appeal waiver, advising Cohen, “there is a waiver of appeal
provision. You waive the right to appeal from your convictions . . . and whatever
sentence is imposed, and you agree to withdraw all pending motions and not to file any
further motions.” Id. at 304 (emphasis added). Cohen confirmed that he understood the
court’s explanation and the terms of the Plea Agreement and that he “want[ed] to do
this.” Id. at 312, 304-05. The court then accepted each of Cohen’s guilty pleas.
11
2.
Two months later, on August 3, 2015, Cohen had a change of heart and moved to
withdraw his guilty pleas. Cohen contended, inter alia, that he was legally innocent of
the aggravated identify theft offense in Count Twenty and that the prosecutors had
improperly induced him to enter into the Plea Agreement. More specifically, Cohen
claimed that the stipulated facts in his Plea Agreement were not specific enough to
support his conviction for aggravated identity theft. Cohen also asserted that he was
wrongly induced to plead guilty by material misrepresentations made by the prosecutors
at the plea hearing concerning the seizure of a bank account in his wife’s name.
On September 8, 2015, the district court conducted an evidentiary hearing on the
motion to withdraw. Cohen himself, his final standby attorney, and two of the
prosecutors testified. J.A. 337-440. After assessing the evidence and the applicable legal
principles, the court denied Cohen’s motion to withdraw his guilty pleas. The court
explained that Cohen had not credibly demonstrated his innocence to aggravated identity
theft and that he had failed to prove that the prosecution had engaged in “egregiously
impermissible conduct that induce[d] the guilty plea[s].” Id. at 427, 440. The court
emphasized that the alleged misrepresentations about the bank account during plea
negotiations was simply a misunderstanding and was not egregious. As the court
explained, Cohen had not shown that a reasonable defendant in his circumstances would
have gone to trial had he known of the bank account misunderstanding.
12
E.
1.
Cohen’s presentence report (the “PSR”) was thereafter drafted, and it was
submitted to the district court in July 2015. J.A. 1952-84. In September and November
2015, the court conducted six days of evidentiary sentencing hearings, allowing the
parties to fully litigate the sentencing issues. The government called seven witnesses,
Cohen testified at some length, and a litany of exhibits were presented. After conducting
those sentencing proceedings, the court advised the parties that it would soon make
advisory Guidelines calculations and revise the PSR accordingly.
On November 10, 2015, the district court issued its advisory Guidelines
calculations. Pursuant to the Plea Agreement, the court applied a base offense level of 7
to Count One and a mandatory two-year consecutive sentence on Count Twenty. The
court found the loss amount attributable to Cohen’s insurance fraud scheme to be at least
$126,000,000, and as much as $137,000,000. J.A. 1986-88. Those findings on loss
amount resulted in a twenty-four-level upward adjustment. The court then imposed
seven additional upward adjustments: for causing substantial financial hardship to five or
more victims; for violating court orders; for using sophisticated means; for jeopardizing
the safety and soundness of a financial institution; for maintaining a leadership role; for
abusing a position of private trust; and for obstructing justice. Id. at 1986-96.
After the PSR was revised to comport with the district court’s Guidelines
calculations, the parties made additional submissions. Applying a total offense level of
51 and a criminal history category of I, Cohen’s advisory Guidelines range was life in
13
prison. The PSR capped the advisory sentencing range at 660 months, however, to
comport with the statutory maximum penalties. J.A. 1974. On November 10, 2015, the
court filed its Guidelines calculations and adopted the PSR. The court then scheduled the
final sentencing hearing for December 10, 2015.
2.
On November 23, 2015 — with his sentencing about to be finalized — Cohen
moved to rescind his pro se self-representation status. He also moved the district court to
appoint a defense lawyer to represent him at the final sentencing hearing (the “motion to
rescind pro se status and appoint counsel”). The court promptly referred Cohen’s motion
to rescind pro se status and appoint counsel to the magistrate judge.
On December 1, 2015, during a hearing on Cohen’s new motion, the magistrate
judge commented in some detail on Cohen’s pro se representation efforts throughout the
district court proceedings. He observed that Cohen had submitted some of the best
arguments the judge had seen “that deal with sentencing guidelines.” J.A. 1838. The
judge identified multiple aspects of the proceedings where Cohen had performed capably
in representing himself, including numerous motions, several days of trial, plea
negotiations and plea proceedings, efforts to withdraw his guilty pleas, and contested
sentencing hearings.
Cohen testified at the hearing that, although he had a great deal of experience with
trials and motions, he was nevertheless “very uncomfortable” in the sentencing
proceedings. J.A. 1839. When the magistrate judge asked Cohen why he had not raised
that discomfort earlier, Cohen responded that the sentencing hearings had not unfolded as
14
expected. Cohen also said he was “in unknown territory” and uncomfortable going
forward “without counsel to say, okay, this is proceeding properly.” Id. at 1840. The
magistrate judge found that, because Cohen had not succeeded on his Guidelines
arguments, he was seeking an appointed lawyer to “start over again.” Id. at 1839.
The magistrate judge related during the hearing that Cohen’s standby counsel
could continue to answer questions for him regarding practices and procedures,
emphasizing that a restart of the sentencing proceedings was impractical “and probably
would never happen.” J.A. 1841-42. Relying on our 1989 decision in United States v.
West, the judge also correctly recognized that, once waived, an accused’s Sixth
Amendment right to counsel is no longer absolute. Id. at 1846-48 (citing 877 F.2d 281(4th Cir. 1989)). The magistrate judge emphasized that, more than a year before these
events, Cohen had made a knowing and intelligent decision to represent himself pro se.
The judge also explained that Cohen had represented himself “for a significant period of
time, in the crucible of trials and sentencing hearings” and had done so “zealously and
with a great deal of advocacy.” Id. In that context, Cohen’s motion to rescind pro se
status and appoint counsel was being made at the eleventh hour and only after he learned
that the advisory Guidelines calculations were “off the charts.” Id.The magistrate judge therefore denied Cohen’s motion to rescind pro se status and
appoint counsel. That ruling was predicated on three specific findings: (1) Cohen’s
motion was untimely; (2) Cohen had not shown any good reason for an appointment of
counsel; and (3) such an appointment would not serve “the speedy and timely
administration of justice and the court’s schedule.” J.A. 1848-51. Emphasizing his third
15
finding, the judge again observed that the final sentencing hearing was not likely to be
postponed. He explained that it would be “impossible for any new attorney . . . to get up
to speed” to maintain the scheduled hearing. Id. at 1850. Later that very day, the
magistrate judge entered an order confirming his bench ruling. Of importance, Cohen did
not seek to appeal the magistrate judge’s ruling to the district court, nor did he file any
objections to it. 7
3.
On December 10, 2015, the district court convened Cohen’s final sentencing
hearing. After considering the positions of the parties and the entire record, the court
concluded that “this case requires the imposition of a severe punishment.” J.A. 1939.
Nevertheless, the court varied downward from “what would be essentially a life sentence
for Mr. Cohen” and imposed a sentence that was “sufficient but not greater than
necessary to reflect the seriousness of these offenses, provide just punishment and
adequate deterrence, and to protect the public from further crimes of the Defendant.” Id.
at 1939-40. With those concerns guiding the court, Cohen was sentenced to an aggregate
term of 444 months in prison. His sentences on the four offenses of conviction were as
follows:
7
Pursuant to 28 U.S.C. § 636(b), the local rules of the District of Maryland
provide that a district judge may “designate a full-time magistrate to hear and determine
(including the passage of final orders as to all or any part of) any pretrial matter pending
before the Court . . . .” See D. Md. L.R. 301.5(a). Those rules provide that an appeal
from a magistrate judge’s ruling “shall be made to the District Court within fourteen (14)
days from entry of the decision.” Id. 302.1.
16
• 240 months on the mail fraud offense in Count One;
• 180 months for making false statements to an insurance regulator, as
charged in Count Twenty-Four, to run consecutive to the 240 months
imposed on Count One;
• 240 months on the obstruction of justice offense in Count Twenty-
Eight, to run concurrently with the 420 months imposed on Counts
One and Twenty-Four; and
• 24 months on the aggravated identity theft offense in Count Twenty,
to run consecutive to the 420 months imposed on Counts One,
Twenty-Four, and Twenty-Eight.
See J.A. 1940, 1946. Cohen’s aggregate sentence of 444 months — totalling 37 years —
was substantially less than the Guidelines maximum of 660 months. Finally, the court
determined that the sentence imposed would best serve the ends of justice.
II.
As a general proposition, we review a district court’s legal conclusions de novo
and its factual findings for clear error. See United States v. Layton, 564 F.3d 330, 334
(4th Cir. 2009). We also review de novo an issue concerning the validity of an appeal
waiver. See United States v. Cohen, 459 F.3d 490, 494 (4th Cir. 2006). Any contention
of appellate error that was not pursued and preserved in the district court, however, is
reviewed for plain error only. See United States v. Olano, 507 U.S. 725, 731-32 (1993).
III.
Cohen has timely appealed from his criminal judgment, seeking to challenge his
convictions and sentences. We possess jurisdiction pursuant to 28 U.S.C. § 1291. Cohen
17
has been represented by appointed appellate counsel during the entirety of this appeal. 8
Cohen has also sought to personally participate in the appeal by way of seventeen pro se
submissions. After first assessing the issues presented by Cohen’s appellate counsel, we
will dispose of his pending pro se submissions.
A.
Through his counsel, Cohen pursues four contentions of appellate error identified
in his opening appellate brief:
• First, Cohen maintains that the district court erred in failing to
conduct a Farmer hearing on his asset seizure allegations (the
“Farmer hearing issue);
• Second, Cohen contends that his Sixth Amendment right to counsel
was contravened by the magistrate judge’s denial of his request to
revoke his pro se status and have a lawyer appointed for his final
sentencing hearing (the “Sixth Amendment issue”);
• Third, Cohen argues that the appeal waiver in his Plea Agreement is
flawed and unenforceable (the “appeal waiver issue”); and
• Finally, Cohen maintains that the district court erred in making
factual findings with respect to his sentencing and in applying
multiple Guidelines enhancements (the “sentencing issue”).
After Cohen’s opening appellate brief was filed, the government moved to dismiss
Cohen’s appeal in substantial part, interposing the appeal waiver contained in his Plea
8
Although we initially appointed Cohen’s final standby lawyer in the district court
to serve as his counsel in this appeal, that lawyer soon sought and secured court approval
for his withdrawal from the appeal. Two other appellate lawyers were thereafter
appointed and subsequently relieved from their representations of Cohen. On June 16,
2016, six months after his appeal was noted, we appointed the public defender for
northern West Virginia to represent Cohen. The defender continues to serve as Cohen’s
counsel in this appeal.
18
Agreement. More specifically, the government sought the dismissal of three of the four
contentions identified in Cohen’s opening brief. As an exception, the government did not
— and does not — seek to apply the appeal waiver to the Sixth Amendment issue.
On March 15, 2017, we granted in part the government’s motion to dismiss
Cohen’s appeal. See United States v. Cohen, No. 15-4780 (4th Cir. Mar. 15, 2017), ECF
No. 72 (the “Appeal Waiver Ruling”). That Ruling provided as follows:
We have thoroughly reviewed the parties’ submissions and the record on
appeal. Considering the totality of the circumstances — including the
language of the plea agreement, the transcript of the plea colloquy, and
Cohen’s representations during the proceedings below — we conclude that
Cohen knowingly and intelligently waived his rights to appeal both his
convictions and sentence. Further, we conclude that Issue IV [the
sentencing issue] in Cohen’s opening appellate brief falls squarely within
the waiver’s broad compass. However, we defer ruling on the remainder of
the motion pending completion of the merits briefing.
Id. In sum, the Appeal Waiver Ruling explicitly dismissed from this appeal the multi-
faceted sentencing issue. Id. It also resolved the appeal waiver issue argued in Cohen’s
opening brief, concluding that the appeal waiver is valid and enforceable. Id. The
question of the appeal waiver’s applicability to the Farmer hearing issue, however, has
been reserved and is not yet resolved.
Thereafter, in April 2017, the government submitted its merits brief in this appeal.
The government argued that the Sixth Amendment issue is without merit and sought to
extend the appeal waiver to completely bar the Farmer hearing issue. In Cohen’s reply
brief, he also focused on the merits of the Sixth Amendment issue and the Farmer
hearing issue. We thus turn to and resolve those appellate contentions.
19
B.
As an overview of where the unresolved issues stand, we recognize that Cohen’s
Sixth Amendment issue is not barred by the appeal waiver. And the government agrees
with that proposition and does not seek to apply the appeal waiver to that issue. As for
Cohen’s Farmer issue, the prosecutors maintain that the appeal waiver and Cohen’s
guilty pleas each serve as a bar to our review.
The prosecutors also argue that the district court did not err on the merits in its
denial of Cohen’s request for a Farmer hearing. In that respect, they argue that Cohen
had only sought to obtain funds to retain a standby counsel of his choice, and that he
failed to make a sufficient prima facie showing to justify a Farmer hearing. Cohen, on
the other hand, maintains that the appeal waiver does not apply to the Farmer hearing
issue. He also argues that his guilty pleas do not bar an appellate review of that issue.
C.
1.
In order to fully resolve Cohen’s Farmer hearing issue, we must decide whether
the valid and enforceable appeal waiver has sufficient breadth to bar Cohen’s challenge
to the district court’s denial of his Farmer hearing request. Cohen maintains that the
Farmer hearing issue is exempt from the appeal waiver because he was actually seeking
to use his seized assets to retain a defense attorney, rather than to hire a standby counsel.
With that spin on the facts, Cohen paints a Sixth Amendment violation by asserting that
he clearly expressed his desire to hire his own private defense counsel. This factual
20
assertion is patently false. As the district court specifically found, Cohen sought his
“seized funds to pay for standby counsel of his choice.” J.A. 2370 (emphasis added).
It is settled that Cohen had no right to the appointment of a standby counsel after
he chose to proceed pro se, let alone the right to a standby counsel of his choosing. See
United States v. Beckton, 740 F.3d 303, 307 (4th Cir. 2014) (recognizing that defendant
has both a constitutional right to counsel and a constitutional right to represent himself,
but that those rights are “mutually exclusive”); see also United States v. Singleton, 107
F.3d 1091, 1100-01 (4th Cir. 1997); McKaskle v. Wiggins, 465 U.S. 168, 183 (1984)
(recognizing that although court may appoint standby counsel, Faretta does not require
or authorize “hybrid” representation). Thus, the applicable precedent and the controlling
facts undermine Cohen’s characterization of his Farmer hearing contention as
constituting a deprivation of his right to counsel. Cohen’s effort to repudiate his appeal
waiver in that regard is therefore rejected.
Again, as we explained in the Appeal Waiver Ruling, Cohen’s appeal waiver is
valid and enforceable. We discern nothing that would place the Farmer hearing issue
beyond the breadth of the appeal waiver, and that issue is therefore dismissed.
2.
Turning to the Sixth Amendment issue, Cohen argues that the magistrate judge
contravened his right to counsel by denying his motion to rescind pro se status and
appoint counsel for his final sentencing hearing. Although the government agrees that
the appeal waiver does not apply to that contention, Cohen nevertheless failed to preserve
it for appellate review. That is, Cohen failed to either appeal or object to the magistrate
21
judge’s denial of his motion. Although we review for abuse of discretion a court’s denial
of a defendant’s request for counsel after he has already invoked his right to self-
representation, the Sixth Amendment issue — not being preserved in the lower court —
is subject to plain error review only.
Before making the plain error analysis, some basic legal principles should be
identified. First, the Sixth Amendment protects a defendant’s “right to counsel at all
critical stages of the criminal process.” See Marshall v. Rodgers, 569 U.S. 58, 62 (2013).
That safeguard also protects an accused’s fundamental right to voluntarily and
intelligently elect to proceed without counsel. See Faretta v. California, 422 U.S. 806,
807 (1975). Second, although an accused can reassert his right to counsel after it has
been withdrawn, “there is broad consensus that, once waived, the right to counsel is no
longer unqualified.” See West, 877 F.2d at 286; United States v. Kerr, 752 F.3d 206, 220
(2d Cir. 2014).
Third, when a trial court is faced with a tardy request for appointed counsel, the
court is entitled to consider the defendant’s motive in seeking to rescind his pro se status.
Put simply, the right to self-representation “does not exist . . . to be used as a tactic for
delay, for disruption, for distortion of the system, or for manipulation of the trial
process.” United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir. 2000) (citations
omitted); see also Faretta, 422 U.S. at 834 n. 46 (observing that right of self-
representation is neither “a license to abuse the dignity of the courtroom” nor “a license
not to comply with relevant rules of procedural and substantive law”). Fourth, the federal
courts routinely consider the timeliness of a renewed request for counsel. See West, 877
22
F.2d at 286; Kerr, 752 F.3d at 209-10; United States v. Woodard, 291 F.3d 95, 111 (1st
Cir. 2002). As we have recognized, a request by an accused to revoke his pro se status
and reassert the right to counsel raises “the countervailing public interest in proceeding
on schedule,” which “has no less weight merely because the motion is filed by a pro se
defendant.” West, 877 F.2d at 286 (citation omitted).
Turning to the present situation, Cohen made his motion to rescind pro se status
and appoint counsel in a very tardy fashion. The district court had already conducted
expansive evidentiary sentencing hearings and issued its advisory Guidelines
computations, and Cohen had been representing himself pro se for more than a year.
Throughout the proceedings, and until the eve of final sentencing, Cohen had reaffirmed
that pro se self-representation was his desire and intention. Thus, Cohen had “no right to
whipsaw the district court and delay the proceedings by continually alternating his
position on counsel.” See Kerr, 752 F.3d at 222.
The magistrate judge denied Cohen’s motion to rescind pro se status and appoint
counsel for three sound reasons: (1) Cohen’s motion was untimely; (2) Cohen had not
shown any good reason for an appointment of counsel; and (3) such an appointment
would not serve “the speedy and timely administration of justice and the court’s
schedule.” J.A. 1848-51. The judge identified the gravamen of the motion as Cohen’s
dissatisfaction with the Guidelines calculations. The judge found that Cohen simply
wished to “start over again” after his sentencing exposure was greater than he anticipated.
Id. at 1839.
23
This record convincingly reveals that — in every aspect of the district court
proceedings — Cohen has received an excess of judicial solicitude, patience, and process.
And we are obliged to defer to the magistrate judge’s well-founded factual findings. We
thus discern no error in the denial of Cohen’s motion to rescind pro se status and appoint
counsel for his final sentencing hearing. Because no error was made, there can be no
plain error. Cohen’s Sixth Amendment issue is therefore rejected.
IV.
A.
Finally, Cohen has made seventeen pro se supplemental submissions in this
appeal, and many of them seek to pursue additional appellate issues. As an initial matter,
we observe that an appellant who is represented by counsel has no right to file pro se
briefs or raise additional substantive issues in an appeal. See United States v. Hare, 820
F.3d 93, 106 n.11 (4th Cir. 2016); United States v. Washington, 743 F.3d 938, 941 n.1
(4th Cir. 2014). For that reason, we promptly denied Cohen’s initial effort to file a pro se
brief, which was tendered before his counsel had filed the opening appellate brief. Not
long after Cohen’s counsel filed his opening brief, Cohen sought to file another pro se
brief. See United States v. Cohen, No. 15-4780 (4th Cir. Oct. 31, 2016), ECF Nos. 56,
57. In the circumstances, we authorized the filing of that submission. Not content with
that submission alone, Cohen now seeks to file other pro se supplemental submissions
and pursue contentions of error that are generally frivolous and inscrutable.
24
In one of his pending pro se submissions, however, Cohen has identified an
Apprendi issue with respect to Count Twenty-Four that has plausible merit, but is
burdened by serious procedural flaws. See United States v. Cohen, No. 15-4780 (4th Cir.
Feb. 14, 2017), ECF No. 71. 9 We will therefore file and address that issue. With the
exception of the Apprendi issue, we hereby reject and strike all of Cohen’s other pending
pro se submissions.
With that explanation, and with most of Cohen’s pro se submissions having been
rejected and stricken, one of Cohen’s supplemental pro se submissions, plus the Apprendi
issue, are yet unresolved. See United States v. Cohen, No. 15-4780 (4th Cir. Oct. 31,
2016), ECF No. 57 (the “Pro Se Brief”); Id. (4th Cir. Feb. 14, 2017), ECF No. 71 (the
“Apprendi issue”). We will first dispose of the Pro Se Brief and then address the
Apprendi issue.
B.
1.
Liberally construing the Pro Se Brief, we discern eight contentions of appellate
error therein. Six of those contentions readily fall within the scope of the appeal waiver
9
Apprendi and its progeny require that any fact that increases a criminal penalty
beyond the prescribed statutory maximum must be charged in the indictment and proved
to the jury beyond a reasonable doubt. See 530 U.S. at 490. Where the defendant has
pleaded guilty, the defendant’s admissions during the plea colloquy can satisfy this
requirement. See United States v. Booker, 543 U.S. 220, 232 (2005); United States v.
Milam, 443 F.3d 382, 387 (4th Cir. 2006).
25
and are barred by the waiver and Cohen’s guilty pleas. 10 See Tollett v. Henderson, 411
U.S. 258, 267 (1973) (recognizing that where a defendant “has solemnly admitted in open
court that he is in fact guilty, . . . he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to the entry of the guilty
plea”). By two other contentions pursued in the Pro Se Brief, Cohen contends that the
district court erred in rejecting his effort to withdraw his guilty pleas. Those contentions
are also barred — albeit by the appeal waiver only — and they warrant a brief discussion.
2.
In the Pro Se Brief’s remaining two contentions, Cohen argues that the district
court erred in denying his motion to withdraw his guilty pleas. He relies on two
independent grounds for that claim. First, he says that he is legally innocent on Count
Twenty, in that his conviction was not based on an appropriate predicate offense.
Second, Cohen argues that the court erred because misrepresentations by the prosecutors
in the plea negotiations rendered his guilty pleas neither knowing nor voluntary.
As explained above in Part III.A, our Appeal Waiver Ruling concluded that
“Cohen knowingly and intelligently waived his rights to appeal both his convictions and
sentence.” Cohen ignores the controlling terms of the appeal waiver contained in the
10
Six issues in the Pro Se Brief are readily barred by the appeal waiver and the
guilty pleas. Those are that the court erred by (1) imposing a sentencing enhancement for
obstructing justice; (2) holding Cohen in pretrial detention; (3) declining to dismiss the
Indictment for prosecutorial misconduct; (4) imposing restitution as part of Cohen’s
sentence; and (5) failing to dismiss the Indictment due to speedy trial violations. In his
sixth barred issue, Cohen maintains that the court’s cumulative errors deprived the
district court proceedings of fundamental fairness and due process.
26
Plea Agreement he made with the United States Attorney. That is, Cohen waived his
“right . . . to appeal [his] conviction,” he agreed to “withdraw all pending motions in the
district court and to not file any further motions in the district court,” and he explicitly
agreed that he “knowingly, intentionally, and voluntarily waive[d] his right to attack
collaterally the plea being offered in the instant case.” J.A. 329-30. 11 Again, in this
appeal, we must assess the appeal waiver’s breadth and its applicability to asserted
contentions of error.
In his Pro Se Brief, Cohen fails to explain how his challenges to the district court’s
denial of his motion to withdraw his guilty pleas are not subsumed by the appeal waiver.
An appeal waiver will not bar appellate review where a “plea-withdrawal motion
incorporates a colorable claim that the plea agreement itself — and hence the waiver of
appeal rights that it contains — is tainted by constitutional error.” See United States v.
Attar, 38 F.3d 727, 733 n.2 (4th Cir. 1994). For example, we have recognized that an
appeal waiver does not preclude at least three types of claims: (1) challenges that a
sentence exceeds the statutory maximum or is based upon a constitutionally infirm factor
such as race; (2) appeals from the denial of a motion to withdraw guilty pleas due to
ineffective assistance of counsel; and (3) a contention that “proceedings following entry
11
It almost goes without saying that Cohen’s motion to withdraw his guilty pleas
— filed nearly two months after the pleas were entered — itself breached the Plea
Agreement. Cohen had specifically agreed therein “not to file any further motions in the
district court.” J.A. 330.
27
of the guilty plea were conducted in violation of his Sixth Amendment right to counsel.”
See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Cohen’s contentions of error with respect to his guilty pleas do not qualify as the
types of claims recounted in Johnson. Cohen’s claim of legal innocence is simply an
effort to again contest his conviction on Count Twenty, and thus falls within the plain
terms of the appeal waiver. In his other contention about the guilty pleas, Cohen
maintains that his only reason for entering into the Plea Agreement was to make his wife
whole. See Pro Se Br. 36. The record simply does not support Cohen’s all-or-nothing
statement about his motive for entering into the Agreement. Cohen’s second contention
about the guilty pleas is obviously just another effort to contest his underlying
convictions and does not present a colorable constitutional claim. See, e.g., Attar, 38
F.3d at 733 n.2 (recognizing that “defendant’s desire to spare his family the
embarrassment of trial is not sufficient to render his decision to plead guilty ‘involuntary’
in the constitutional sense; if it were, virtually every guilty plea would be invalid”). 12
Put simply, we discern no colorable claim of constitutional error in the two
unresolved contentions of the Pro Se Brief concerning Cohen’s guilty pleas. Thus,
12
As explained in Part I.D.2 hereof, the district court conducted an extensive
evidentiary hearing and confirmed Cohen’s knowing and voluntary guilty pleas. The
court denied Cohen’s motion to withdraw his guilty pleas by way of a carefully crafted
and thorough memorandum opinion. See United States v. Cohen, No. 1:14-cr-0310 (D.
Md. June 8, 2015), ECF No. 385. In those proceedings, Cohen again received an excess
of judicial solicitude and process. If we were to reach and address the merits of the
contentions in the Pro Se Brief concerning his guilty pleas, we would readily conclude
that the district court did not err in ruling that Cohen entered his guilty pleas knowingly
and voluntarily.
28
nothing places them beyond the breadth of the appeal waiver, and those contentions are
therefore also dismissed.
C.
Finally, we turn to the Apprendi issue that Cohen pursues with respect to Count
Twenty-Four. Cohen maintains that his sentence on Count Twenty-Four contravened the
Supreme Court’s ruling in Apprendi v. New Jersey, in that neither the Indictment nor the
facts admitted in the plea colloquy permit the application of an enhanced 15-year
sentence. See 530 U.S. 466 (2000). Because we have recognized that an Apprendi issue
can fall outside the scope of an appeal waiver, we will carefully assess that issue. See
United States v. General, 278 F.3d 389, 399 n.4 (4th Cir. 2002) (recognizing that
challenges to a defendant’s sentence pursuant to Apprendi “are not subject to contractual
waivers”); see also Johnson, 410 F.3d at 151 (explaining that “a defendant could not be
said to have waived his right to appellate review of a sentence imposed in excess of the
maximum penalty provided by statute”).
Count Twenty-Four charged Cohen with making a false statement to an insurance
regulator, in violation of 18 U.S.C. 1033(a). 13 A violation of § 1033(a) normally
provides for a maximum statutory sentence of “not more than 10 years.” Id.
13
Count Twenty-Four of the Indictment alleged, in pertinent part, that Cohen “did
knowingly, willfully, and with the intent to deceive, make materially false
statements . . . to the Delaware Insurance Commissioner and her agents, for the purpose
of influencing” their official actions. See J.A. 83. That offense was predicated on a letter
that Cohen sent to the Delaware insurance regulators which falsely stated that IIC “had
$5.1 million in unencumbered cash on deposit at Susquehanna Bank.” Id. at 84.
29
§ 1033(a)(2). However, an enhanced penalty of “not more than 15 years” is authorized if
the false statement “jeopardized the safety and soundness of an insurer and was a
significant cause of such insurer being placed in conservation, rehabilitation, or
liquidation by an appropriate court.” Id.
Because there is arguable merit to the Apprendi issue, we secured post-argument
supplemental briefs on that question. In Cohen’s supplemental brief, his counsel urges us
to recognize the merits of the Apprendi issue and remand for resentencing on all four
offenses. More specifically, the brief argues that the Indictment and plea colloquy lack
the factual support necessary to warrant an enhanced 15-year sentence for the Count
Twenty-Four offense. Relying on our decision in United States v. Catone, Cohen’s brief
also maintains that we should review the Apprendi issue for harmless error and that the
Apprendi error was not harmless. See Catone, 769 F.3d 866 (4th Cir. 2014). The
government, on the other hand, maintains that we should reject Cohen’s Apprendi
contention and affirm his aggregate sentence. The government emphasizes facts elicited
in Cohen’s sentencing proceedings that support the enhanced 15-year sentence for the
§ 1033(a) offense. The government also maintains that we can review the Apprendi issue
for plain error only, and that — even assuming a plain error occurred — we should not
recognize it.
There are important procedural facts that guide our identification of the proper
standard of review on the Apprendi issue. First, it is elementary that an issue not
presented fairly in an appellant’s opening appellate brief is thereby waived. See United
30
States v. Lesson, 453 F.3d 631, 638 n.4 (4th Cir. 2006). 14 And the Apprendi issue was
not raised in either the opening appellate brief or in the Pro Se Brief. Second, Cohen
simply “has no right to raise substantive issues while he is represented by counsel” in this
appeal. See United States v. Washington, 743 F.3d 938, 941 n.1 (internal quotation marks
omitted). Because Cohen is represented by appellate counsel, we could readily reject the
Apprendi issue on that basis. Cohen — who was then representing himself pro se — also
failed to raise and preserve the Apprendi issue in the district court. In these
circumstances, it is clear that we can only review the Apprendi issue for plain error. See
United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001) (relying on United States v.
Olano, 507 U.S. 725, 731-32 (1993)). We are satisfied that the plain error standard
applies to the Apprendi issue, and we will only assess its merits on that basis.
To prevail on plain error review, an appellant must show (1) that the district court
erred, (2) that the error was plain, and (3) that the error affected his substantial rights.
See Olano, 507 U.S. at 734. To satisfy the third prong of that test, the appellant must
show that the error actually “affected the outcome of the district court proceedings.” Id.If each of those three requirements are satisfied, we possess discretion on whether to
recognize the error, but we “should not do so unless the error ‘seriously affects the
14
Giving Cohen substantial leeway in these proceedings and treating his Pro Se
Brief as a second chance at an opening brief, Cohen yet again failed to raise the Apprendi
issue in a timely manner. See United States v. Cohen, No. 15-4780 (4th Cir. Feb. 14,
2017), ECF No. 71. He thus pursues the Apprendi issue in a tardy fashion. See United
States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002) (concluding that defendant waived
Apprendi claim by raising it in Rule 28(j) letter rather than in his initial brief).
31
fairness, integrity or public reputation of judicial proceedings.’” United States v.
Hargrove, 625 F.3d 170, 184 (4th Cir. 2010) (quoting Olano, 507 U.S. at 736).
Assuming that the first two plain error requirements are satisfied on the Apprendi
issue — that the court erred on the statutory maximum as to Count Twenty-Four, and that
the error was plain — the Apprendi issue nevertheless fails to pass muster on plain error’s
third prong. If the assumed sentencing error had not occurred, the applicable statutory
maximum for Count Twenty-Four would have been capped at 10 years rather than 15
years. Cohen’s aggregate sentencing exposure would have been 60 months less, that is,
600 months rather than 660 months. To satisfy the third prong of Olano, however, the
plain error must have affected Cohen’s substantial rights by altering the “outcome of the
district court proceedings.” Olano, 507 U.S. at 734. And there is ample evidence in this
record to belie that proposition.
First, Cohen understood that he was pleading guilty to a § 1033(a) offense that
carried a maximum 15-year sentence. That fact was included in the Plea Agreement, the
PSR, and carefully explained to Cohen during the Rule 11 plea colloquy. See J.A. 324,
288, 1952. Moreover, Cohen’s aggregate sentence of 444 months was well within a 600-
month statutory maximum. Additionally, the sentencing court clearly intended to impose
a 444-month sentence on Cohen, rather than an effective life sentence. The court
explained that “this case requires the imposition of a severe punishment, but not . . . what
would essentially be a life sentence for Mr. Cohen.” Id. at 2000. After weighing the
arguments of the parties, the court varied downward to a substantial extent in order to
impose the 444-month sentence, which is “in total, a 37-year sentence.” Id. at 1940. The
32
government reasonably observes that, if the court had been constrained by a five-year
decrease in the statutory maximum on Count Twenty-Four, it could readily have
apportioned the same 444-month sentence differently among Cohen’s four convictions.
In these circumstances, we are satisfied that the plain error did not impact Cohen’s
substantial rights or affect the outcome of the sentencing proceedings.
Finally, even if Cohen could satisfy the third prong of the plain error standard, we
would decline to provide him with any relief. See Promise, 255 F.3d at 161 (recognizing
that we are “not obligated to notice even structural errors on plain error review,
notwithstanding that structural errors are per se reversible when reviewed under a
harmless error standard”). Put simply, assuming a plain error occurred, that error does
not undermine the fairness, integrity, or public reputation of judicial proceedings. See
United States v. Brown, 757 F.3d 183, 194 (4th Cir. 2014). In any event, we would
therefore not award any relief to Cohen on the Apprendi issue.
V.
Pursuant to the foregoing, we dismiss all contentions of error presented — and
sought to be presented — on behalf of Cohen in the appellate briefs and in his pro se
supplemental submissions, save for the Sixth Amendment issue and the Apprendi issue.
As to those two contentions, we affirm the district court.
DISMISSED IN PART AND
AFFIRMED IN PART
33