United States v. Thompson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL LEE THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-03-530)
Argued: February 3, 2006 Decided: July 25, 2006
Before WILKINS, Chief Judge, and WILLIAMS and SHEDD, Circuit
Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in
which Chief Judge Wilkins and Judge Williams concurred.
ARGUED: Amy Lynn Tenney, JENNER & BLOCK, Washington, D.C., for
Appellant. Linda I. Marks, UNITED STATES DEPARTMENT OF JUSTICE,
Office of Consumer Litigation, Washington, D.C., for Appellee. ON
BRIEF: Julie M. Carpenter, JENNER & BLOCK, Washington, D.C., for
Appellant. Paul J. McNulty, United States Attorney, Karen L.
Taylor, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
SHEDD, Circuit Judge:
Daniel L. Thompson appeals his conviction and sentence for
violating the Controlled Substances Act (the “CSA”), 21 U.S.C.
§ 801 et seq. We affirm.
I.
In the mid-1990s, Dr. Thompson was a physician licensed to
practice medicine by the State of Ohio and was authorized by the
Drug Enforcement Administration to prescribe controlled substances.
Dr. Thompson and Vineet Chhabra, a businessman, founded and
operated weight loss centers in Ohio. Over a two-year period, Dr.
Thompson treated more than 3,000 patients suffering from obesity in
these centers and never refused to prescribe medication to them
based on diagnostic testing.
After obtaining an opinion from their attorney that such a
practice would be lawful, Dr. Thompson and Chhabra created a
website offering medications controlled under the CSA for the
treatment of obesity. Rather than travel to Dr. Thompson’s weight-
loss centers, individuals would submit information relating to
their medical history and current ailment over the internet. Based
on the information provided over the internet, Dr. Thompson would
prescribe controlled substances to these patients. For the next
several months, Dr. Thompson earned more than $50,000 per month
from his internet practice. Chhabra also established similar
3
relationships with other physicians and pharmacists to offer
controlled substances over the internet.
In the late 1990s, Ohio promulgated regulations requiring
physicians to perform physical examinations before prescribing
controlled substances to Ohio residents for the treatment of
obesity. In 2000, Dr. Thompson pleaded guilty in Ohio state court
to violating the Ohio regulations. As part of his plea agreement,
Dr. Thompson surrendered his medical license and DEA registration.
After Dr. Thompson stopped prescribing medications, his brother,
Dr. William Thompson, a physician licensed in Missouri, replaced
Dr. Thompson as the prescribing physician for the internet
practice.
In 2003, the government indicted Chhabra, Dr. Thompson, his
brother, and several other physicians and pharmacists for
conspiring to violate the CSA by distributing and dispensing
controlled substances other than for a legitimate medical purpose
and not in the usual course of professional practice. The
indictment alleged that the defendants failed to check the accuracy
of the information the patients provided over the internet,
including their identities, ages, and qualifying medical condition.
It further alleged that the defendants provided controlled
substances even when no physician reviewed the information provided
by the patients.
4
Before his arraignment, Dr. Thompson provided a financial
affidavit to the district court “in case bail becomes an issue.”
J.A. 213. In his cover letter, Dr. Thompson informed the court:
I have no attorney and intend on defending myself. The
attorney listed, David Winters, will not be defending me
because of financial problems with regards to another
defendant. . . . Chhabra had been paying Mr. Winters
legal fees and that is no longer the case. I believe Mr.
Winters has already notified the prosecution of these
events and they know that I will be defending this case
pro se.
Id. Dr. Thompson’s financial affidavit revealed that he was then
unemployed, had less than $500 in assets, received only $1,000 each
month from a trust account, and had more than $1.3 million in debt.
By the time of the arraignment in December 2003, the district
court appointed counsel for two of Dr. Thompson’s nonphysician
codefendants. The district court concluded, however, that Dr.
Thompson and his brother did not qualify for court-appointed
counsel. Even though Dr. Thompson’s financial affidavit showed
that he had virtually no assets, the district court recommended
that Dr. Thompson “liquidat[e] whatever assets you have to find
counsel for yourself.” J.A. 190. The district court also warned
Dr. Thompson that:
It’s a risky business acting as your own attorney, but
the law gives you the right to do so. If you are your
own attorney, you should understand that as you speak,
you may be making admissions or statements that the
prosecution can use against you. You’re going to
definitely have a disadvantage in being able to defend
yourself, but it is your right under the Faretta decision
and under the Sixth Amendment. And while I’ll permit you
to be your own attorney, you will have to follow all the
5
rules and regulations of the Court. We’ll give you very
little extra slack, a little bit, but you understand if
you proceed at your own risk, you are a doctor, so you’re
well educated, so I have no doubt that you can adequately
represent yourself, but there’s nothing like having a
lawyer.
J.A. 190-91. Dr. Thompson responded that he was “comfortable”
representing himself. J.A. 191. Dr. Thompson entered a plea of
not guilty and requested a jury trial. The district court
explained to Dr. Thompson his rights under the Speedy Trial Act.
Dr. Thompson stated that he understood his rights, and he expressly
waived them.
For the next several months, Dr. Thompson represented himself.
Because Dr. Thompson was living in South Dakota and could not
afford to travel, he missed some of the pretrial hearings. Dr.
Thompson did, however, file substantive motions to dismiss.
Although these motions were filed after the applicable deadline,
the district court considered and denied them on the merits.
In June 2004, Dr. Thompson moved for “indigency status for all
remaining parts of this criminal trial.” J.A. 321. He explained
that he “did not request indigency status at [the arraignment]
because I was not aware of the personal financial hardship this
trial would place on my limited financial resources.” Id. Dr.
Thompson was concerned that the district court would misinterpret
his absence from pretrial hearings as indifference or contempt for
the court. Dr. Thompson did not specify the exact relief he was
seeking.
6
The district court deemed Dr. Thompson’s motion for indigency
status as a request for appointed counsel. The district court
reexamined the financial affidavit that Dr. Thompson submitted
before the arraignment and determined that Dr. Thompson qualified
for court-appointed counsel. The district court promptly appointed
counsel for Dr. Thompson. During the brief period in which Dr.
Thompson was represented, his appointed counsel obtained a draft
plea agreement and an estimated guideline range calculation for Dr.
Thompson from the government. That estimate showed that Dr.
Thompson’s guideline range would be 46 to 57 months’ imprisonment.
His appointed counsel warned Dr. Thompson that he potentially faced
a much longer term of imprisonment if he refused to plead guilty
and was found guilty at trial.
Within fifteen days of having counsel appointed, Dr. Thompson
moved to be restored to pro se status. Dr. Thompson explained that
he did not request a court-appointed counsel at his arraignment,
because “I wanted to defend myself,” and that his recent motion for
indigency status was not meant as a request for counsel. J.A. 355.
Dr. Thompson insisted that the counsel appointed to represent him
was more of a hindrance than a help and “has made me feel
compassion for those indigent defendants incapable of attempting a
pro se defense.” Id. Dr. Thompson further emphasized that he had
“never requested court appointed counsel,” that he had always
“intended on being allowed the right to cross examine the
7
prosecution’s witnesses as well as to give my own opening and
closing statements,” and that “I am certain that I have a
constitutional right to defend myself.” J.A. 356. Dr. Thompson
requested that the district court “remove my Court appointed
attorney from this trial and allow me to defend myself as an
indigent Pro Se defendant.” J.A. 357.
In response, the district court informed Dr. Thompson that he
could not receive any funding to hire expert witnesses, to travel
to hearings, or to pay for other defense expenses if he returned to
pro se status. The court explained that “[a]ppointing counsel is
the only way that the Court can assist the defendant in defraying
the costs of his legal defense.” J.A. 360. The district court
delayed ruling on Dr. Thompson’s motion to return to pro se status
to give him an opportunity to consider the ramifications to his
defense of representing himself. The district court ordered Dr.
Thompson to inform the court within five days if he wanted to keep
his court-appointed counsel or if he instead wanted to resume his
defense pro se.
About ten days later, Dr. Thompson’s court-appointed counsel
moved to withdraw as counsel. On the same day, the district court
granted Dr. Thompson’s motion to be restored to pro se status,
noting that Dr. Thompson, pursuant to the court’s prior order, had
“informed the Court that he wishes to have his court-appointed
counsel withdrawn” and that Dr. Thompson “understands the
8
implications of returning to his pro se status.” J.A. 362. The
district court also granted the court-appointed counsel leave to
withdraw as counsel. Dr. Thompson did not object to these orders.
After several of Dr. Thompson’s codefendants pleaded guilty,
the government filed a superseding indictment. Shortly thereafter,
Dr. Thompson filed a motion to recuse District Court Judge Brinkema
from presiding over the impending trial. Dr. Thompson alleged
several different bases in support of his claim that Judge Brinkema
was biased against him. For instance, he claimed that Judge
Brinkema was biased against physicians because she appointed
counsel for nonphysician codefendants but denied counsel for him
and his physician brother even though their net worth was
substantially less than the nonphysician codefendants. Although
Dr. Thompson claimed this showed Judge Brinkema’s bias, he admitted
that he had “never asked for” counsel and that he did not like that
the counsel Judge Brinkema eventually appointed him was put “in
charge of my entire defense.” J.A. 429-30.1
Shortly before trial was scheduled to commence, the government
entered into a plea agreement, pursuant to Fed. R. Crim. P.
11(c)(1)(C), with codefendant Chhabra, who the district court
considered to be the primary leader of the conspiracy. Pursuant to
this agreement, Chhabra agreed to plead guilty to only Count 1 of
1
Although the district court docket does not reflect that the
district court ruled on this motion, Dr. Thompson does not argue on
appeal that Judge Brinkema was biased against him.
9
the Superseding Indictment and to receive a 33-month term of
imprisonment. The district court accepted Chhabra’s binding plea
agreement.
After the remaining defendants pleaded guilty, only Dr.
Thompson, his brother, and two other defendants proceeded to trial.
Both Dr. Thompson and his brother appeared pro se. The government
attempted to prove six counts against Dr. Thompson. Count 1
alleged that Dr. Thompson knowingly and intentionally conspired
with others to distribute and dispense controlled substances other
than for a legitimate medical purpose and not in the usual course
of professional practice. The five other counts alleged that Dr.
Thompson knowingly and intentionally illegally distributed and
dispensed controlled substances on five particular occasions.
Dr. Thompson was allowed to give his opening statement. He
told the jury that he was representing himself because he
“absolutely hate[s] attorneys.” J.A. 497. Dr. Thompson was also
allowed to cross examine all of the witnesses who testified,
including his brother, who was qualified as an expert witness in
the field of internal medicine.
The jury found Dr. Thompson guilty of the conspiracy count and
two counts of illegal distribution, but acquitted him of the
remaining three illegal distribution counts. The jury acquitted or
deadlocked on all the charges against the three remaining
defendants.
10
Dr. Thompson moved for a new trial on several grounds,
including that a new trial would give him the opportunity to have
a court-appointed attorney from the onset to “discuss plea
agreement options with the government that would perhaps be much
more agreeable.” J.A. 2094. Dr. Thompson insisted, however, that
he “did not violate the CSA.” J.A. 2123. The district court
denied this motion.
The presentence report (“PSR”) calculated Dr. Thompson’s total
offense level at 25 and placed him in criminal history category I,
giving him a guideline range of 57 to 71 months. The district
court, however, reduced the total offense level to 21 by lowering
the drug quantity attributable to Dr. Thompson and by giving him
credit for acceptance of responsibility. These rulings resulted in
an adjusted guideline range of 37 to 46 months’ imprisonment. The
district court sentenced Dr. Thompson to 37 months’ imprisonment,
the minimum sentence under this guideline range, noting that this
sentence “is more than sufficient, and it is also proper and
appropriate in light of the sentences of the other defendants in
this case.” J.A. 2204.
11
II.
Dr. Thompson argues that the district court deprived him of
his Sixth Amendment right to be represented by counsel. We
disagree.2
The Sixth Amendment to the United States Constitution provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right to . . . have the Assistance of Counsel for his defence.”
This right mandates that “counsel be provided for a defendant who
cannot afford to retain private representation in any case in which
he will be incarcerated if convicted.” United States v. Singleton,
107 F.3d 1091, 1095 (4th Cir. 1997). Although courts must protect
a defendant’s right to counsel, Johnson v. Zerbst, 304 U.S. 458,
465 (1938), courts must also take care not to force counsel upon a
defendant because the Sixth Amendment also gives a defendant the
right to represent himself, Faretta v. California, 422 U.S. 806,
807 (1975). “[T]he right to self-representation . . . derives from
the Sixth Amendment principle wherein the defendant has the right
to decide the type of defense he will mount.” United States v.
Gonzalez-Lopez, 399 F.3d 924, 934-35 (8th Cir. 2005), aff’d,
U.S. , 2006 WL 1725573 (2006). The defendant can waive the
right to counsel if his waiver is knowing, intelligent, and
voluntary. Zerbst, 304 U.S. at 468; Singleton, 107 F.3d at 1095.
2
Dr. Thompson raises other assignments of error, but we
conclude that they also lack merit.
12
The right to counsel and the right to self-representation are
mutually exclusive, and therefore “the assertion of one constitutes
a de facto waiver of the other.” Singleton, 107 F.3d at 1096.
Determining whether a defendant sufficiently waived his right
to counsel is a question of law that we review de novo. United
States v. Owen, 407 F.3d 222, 225 (4th Cir. 2005). “The
determination of whether there has been an intelligent waiver of
the right to counsel must depend, in each case, upon the particular
facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.” Zerbst, 304
U.S. at 464. In deciding whether the defendant’s waiver of counsel
was sufficient, we examine the entire record. Singleton, 107 F.3d
at 1097; Townes v. United States, 371 F.2d 930, 934 (4th Cir.
1966). While it is incumbent upon the trial court to determine
that a defendant's waiver of his right to counsel is knowing and
intelligent, no particular form of colloquy is required. Townes,
371 F.2d at 934. The court must make the defendant aware of the
“dangers and disadvantages of self-representation,” Faretta, 422
U.S. at 835, so that the defendant “knows what he is doing and his
choice is made with eyes open.” Adams v. United States ex rel.
McCann, 317 U.S. 269, 279 (1942). “The defendant must be made
aware that he will be on his own in a complex area where experience
and professional training are greatly to be desired.” United
States v. King, 582 F.2d 888, 890 (4th Cir. 1978).
13
Dr. Thompson argues that the district court erred by refusing
to offer him counsel before his arraignment and by giving him no
choice except to represent himself. We agree that the district
court erred by deciding at the arraignment that Dr. Thompson did
not qualify financially for appointed counsel.3 There is no
dispute that Dr. Thompson qualified financially to be appointed
counsel at every stage of the proceeding.4
While we agree that the district court erred, that does not
end our inquiry because we are required to review the entire record
to determine whether a defendant waived his right to counsel. See
Singleton, 107 F.3d at 1097. Under the unique circumstances of
this case, we conclude that Dr. Thompson knowingly, intelligently,
and voluntarily waived his right to counsel.
When Dr. Thompson provided a financial affidavit to the
district court before his arraignment, he explained in his cover
letter that it was for purposes of setting bail rather than for
qualifying for appointed counsel. Dr. Thompson specifically
informed the district court in his cover letter that he “intend[ed]
on defending myself.” J.A. 213.
3
We do not decide that an arraignment is a “critical stage” at
which the right to counsel applies. See Owen, 407 F.3d at 225(assuming, without deciding, that an arraignment is a “critical
stage”). We decide only that the district court erred in its
initial factual determination that Dr. Thompson did not qualify
financially to be appointed counsel.
4
The government has not produced any evidence suggesting that
Dr. Thompson’s financial affidavit was fraudulent or incorrect.
14
From the transcript of the arraignment, it is clear that the
district court understood, based on Dr. Thompson’s letter, that Dr.
Thompson wanted to represent himself. The district court
recognized in the colloquy that Dr. Thompson was highly educated
and could adequately represent himself, but it thoroughly warned
Dr. Thompson that he would be at a disadvantage if he chose to
represent himself. Despite these warnings, Dr. Thompson stated
that he was “comfortable” representing himself. J.A. 191.
Subsequent events confirm that Dr. Thompson knowingly,
intelligently, and voluntarily waived his right to counsel. As
trial drew closer, Dr. Thompson moved for indigent status
apparently in an effort to obtain travel and defense expenses. The
district court misinterpreted this motion as a request for
appointed counsel. After reexamining Dr. Thompson’s financial
affidavit and determining that he qualified, the district court
appointed counsel for Dr. Thompson. Almost immediately, however,
Dr. Thompson requested that his counsel be removed not only because
Dr. Thompson felt the counsel was not helpful but also because he
“never requested court appointed counsel” and wanted to “defend
myself.” J.A. 356-57. Dr. Thompson stated unequivocally: “I am
certain that I have a constitutional right to defend myself.” J.A.
356. In a subsequent filing, Dr. Thompson further explained that
he was opposed to having counsel appointed because he did not want
15
an attorney placed “in charge of my entire defense.” J.A. 429-
430.5
From our review of the entire record, we conclude that Dr.
Thompson validly invoked his Sixth Amendment right to represent
himself from the beginning of this case. Although the district
court erred by not initially offering him counsel, the district
court reasonably and correctly believed, based on Dr. Thompson’s
pre-arraignment letter and his comments at the arraignment, that
Dr. Thompson intended to represent himself. The record as a whole
verifies that had the district court offered Dr. Thompson appointed
counsel at the arraignment, he would have declined such an offer
because he insisted throughout the proceeding that he be allowed to
represent himself and control his own defense. Dr. Thompson’s
post-arraignment statements confirm that the district court’s
understanding at the time of the arraignment – that Dr. Thompson
5
After indicating at the arraignment that he would represent
himself, Dr. Thompson requested an advisory counsel to assist him.
That request was denied. In his motion to return to pro se status
after the district court appointed him counsel, Dr. Thompson
insisted that “I specifically stated I planned on defending myself
Pro Se during my arraignment and that the Court could provide me
with co-counsel if [it] felt it would make the trial go smoother.”
J.A. 356. These statements confirm that Dr. Thompson intended to
represent himself from the beginning of the proceedings against him
and that he wanted, at most, an advisory counsel who could advise
him but who would not be in charge of his defense. Refusal by a
district court to appoint advisory counsel is not a cognizable
Sixth Amendment violation. Singleton, 107 F.3d at 1100-01.
16
wanted to represent himself – was entirely correct.6 Dr. Thompson
never deviated from asserting his right to represent himself and to
control his defense until after the jury found him guilty. By
invoking his Sixth Amendment right to represent himself, Dr.
Thompson knowingly, intelligently, and voluntarily waived his right
to counsel. See Singleton, 107 F.3d at 1096.
III.
We affirm the judgment of the district court.
AFFIRMED
6
Dr. Thompson argues that we cannot consider his post-
arraignment statements in determining whether he validly waived his
right to counsel. He relies on our statement in Singleton that we
review the validity of a waiver based only on what the trial court
knew “at the time” of the waiver. Id. at 1097. The context of
this statement in Singleton, however, reveals that Dr. Thompson’s
reliance is misplaced. Singleton does not address or limit the
consideration of post-waiver information. Instead, Singleton
stands for the proposition that reviewing courts are not limited to
considering what the district court ascertained only “at the time”
of the waiver colloquy but can also consider “the record as a
whole.” Id. We need not decide whether Singleton allows us to
consider Dr. Thompson’s post-arraignment statements to determine in
the first instance whether Dr. Thompson validly waived his right to
counsel. We base our determination that Dr. Thompson validly
waived his right to counsel on his pre-arraignment letter and his
comments during the arraignment. Dr. Thompson’s post-arraignment
statements merely confirm his waiver. Consideration of these
subsequent confirming statements is not inconsistent with
Singleton.
17