United States v. Sealander

UNITED STATES COURT OF APPEALS
Filed 7/19/96
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-6002
(D.C. No. CR-93-128-C)
ROBERT SEALANDER, (W.D. Okla.)

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD E. VEATCH, Nos. 95-6017
&
Defendant-Appellant. 95-6018
(D.C. No. CR-93-128-C)
(W.D. Okla.)

ORDER AND JUDGMENT*

*
This order and judgment is not binding precedent, except under the doctrines of law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.
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.**

Defendants Ronald Veatch and Robert Sealander were jointly prosecuted for operating

a telemarketing business which defrauded a federally insured financial institution. Mr.

Veatch was found guilty of fraud and making false statements to a federally insured financial

institution, conspiracy to commit bank fraud, bank fraud, fraudulent use of a social security

number, and money laundering. Defendants now directly appeal their convictions and

sentences.

I. Background

Mr. Alvin Dion, a resident of Los Angeles, California, became an acquaintance of

Defendants Ronald Veatch and Robert Sealander. Mr. Dion’s health deteriorated

significantly in July 1990 due to a terminal illness. Mr. Sealander, who had access to Mr.

Dion’s apartment during this time, testified that he was aware of conversations between Mr.

Dion and Mr. Veatch about starting a business together. Messrs. Veatch and Sealander had

been in business ventures together prior to this time.1 Mr. Sealander further testified that he

**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this appeal.
See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted
without oral argument.
1
Although two witnesses testified that Mr. Sealander had told them he had had prior
(continued...)

2
suggested to Mr. Dion that he should legally formalize the business arrangement and that he

knew a power of attorney had been executed between Mr. Dion and Mr. Veatch under which

Mr. Veatch could use Mr. Dion’s name.

In August 1990 Mr. Veatch applied for and obtained an Oklahoma identification card

using the name and birth certificate of Mr. Dion. On October 5, 1990, Mr. Veatch obtained

an Oklahoma driver’s license using Mr. Dion’s name. Mr. Dion died in the State of

Washington on October 10, 1990. Mr. Sealander and his unidentified roommate expressed

their condolences in a letter to Mr. Dion’s sister dated the day before he died. They stated

in the letter that, as Mr. Dion requested, “Social Security has been notified as well as all of

what remained of his credit cards and other business type affairs have been canceled.” (R.,

vol. IV at 733-34). In the letter, Mr. Sealander did not mention the power of attorney

arrangement or the business relationship between Messrs. Dion and Veatch.

On October 9, 1990, Mr. Veatch applied for a credit card merchant account in Mr.

Dion’s name at Security National Bank in Norman, Oklahoma [Security National Bank].2

1
(...continued)
business ventures with Mr. Veatch, Mr. Sealander testified that he had not had prior business
ventures with Mr. Veatch.

2
In the association of banks which process Visa/Mastercard transactions, there are both
issuing banks and merchant banks. The issuing banks contract with cardholders, issuing
them cards and billing them. The merchant banks contract with merchants who accept credit
card payment for goods and services. When a merchant makes a credit card sale, he can
either electronically deposit the amount of the sale into his account at the merchant bank or
physically deposit the credit sales slip generated by the sale. The merchant then gains
(continued...)

3
The merchant account allowed Mr. Veatch to accept credit card charges for a new travel

agency business he claimed he was starting in Oklahoma City called Al Dion Enterprises

[Dion Enterprises]. Using the false identification card, the false driver’s license, and Mr.

Dion’s social security number, Mr. Veatch represented that he was Alvin Dion in opening

the merchant account at Security National Bank. He originally wanted to run his business

using a post office box, but Security National Bank refused to approve the merchant account

application until the business had a commercial store front.

Mr. Veatch signed a lease for office space and began operating Dion Enterprises with

the assistance of his brother, who was using the name Roger Goldberg, and his sister-in-law,

Jamie Farris. On November 23, 1990, an employee of Security National Bank viewed the

store front of the business and examined a list of travel agency services to be provided by

Dion Enterprises. Security National Bank approved the application after obtaining an

acceptable credit check.

2
(...continued)
immediate access to Visa/Mastercard funds equal to the amount of the credit sale deposit
even though it may be thirty days before the cardholder is billed by the issuing bank for the
sale.

In the event that the cardholder disputes a sale, the merchant must verify the sale with
either a credit sales slip signed by the cardholder or similar documentation if the transaction
was conducted over the telephone. If the merchant is unable to verify it, the issuing bank
credits the cardholder’s account and charges the amount of the sale back to the merchant
bank. The merchant bank then debits the merchant’s account. If there are insufficient funds
in the merchant’s account to cover the debit, the merchant bank is liable to Visa/Mastercard
for the amount of the debit.

4
 Also in November 1990, Mr. Veatch called Mr. Sealander in Los Angeles and

discussed the business he was setting up. Mr. Sealander agreed to travel to Oklahoma to

assist Mr. Veatch in setting up a computer program to process the sales, shipping, and credit

card information. Mr. Veatch sent him a check, dated November 29, 1990, and signed by

“Al Dion” for transportation and hotel accommodations. In January 1991 Mr. Sealander

went to Oklahoma City to begin work for Dion Enterprises. At that time he observed Mr.

Veatch using Mr. Dion’s name. Eventually, Mr. Sealander took on the role of managing the

day-to-day operations of Dion Enterprises. A former employee of Dion Enterprises testified

that Mr. Sealander was the manager of Dion Enterprises. Using “R. J. Sealander,” Mr.

Sealander signed a real estate lease on behalf of Dion Enterprises for additional office space,

he purchased and leased business equipment, and he hired employees.

According to an employee, Dion Enterprises operated as a fulfillment center.

Telemarketing clients would fax it the pertinent information of each sale the client made:

the customer’s name, address, and phone number, credit card type, and number and the

purchase price amount. Mr. Goldberg would process the credit card number, and data entry

employees would enter the information into a computer system. Then employees would call

the customers and reverify the sale. The office had a shipping and receiving area where the

travel packages that were sold were put together.

On January 29, 1991, Mr. Veatch again posed as Mr. Dion and opened a business

checking account for Al Dion Enterprises at Central Bank in Oklahoma City [Central Bank].

5
The signature card listed Al Dion or R. J. Sealander, d/b/a Dion Enterprises; it was signed

“Al Dion” by Mr. Veatch and by Mr. Sealander using “R. J. Sealander.” Mr. Sealander

testified that although he normally did not sign his name using initials, the signature appeared

to be his, but he did not remember signing the card. The account was opened with the

deposit of a $3,000 check from Security National Bank. On February 13, 1991, Central Bank

received a wire deposit of $4,000 from Security National Bank into the Dion business

account; a second $4,000 wire deposit was made February 14, 1991. One of the $4,000 wire

transfers was authorized by “Al Dion” and the other by “Bob Sea.” Some of the funds

withdrawn from the Central Bank account were used to pay the commercial rent for Dion

Enterprises, to pay the salaries of employees hired to process sales data, and to pay

miscellaneous business expenses.

Soon after opening the merchant account for Al Dion Enterprises, Security National

Bank noticed an unusually large number of “chargebacks” to the account.3 Tim Black, a

former Dion Enterprises’ employee, testified that Mr. Sealander told him refunds on

chargebacks were paid by check so the bank would not begin to wonder why there were so

many chargebacks. Mr. Black also testified that he personally notified Mr. Sealander that

3
A “chargeback” occurs after a credit card customer cancels an order made under their
credit card number, and the merchant bank must charge back to the merchant account for the
canceled amount. Chargebacks in this case occurred when credit card customers complained
that the charges against their accounts were never authorized or that promised goods were
not delivered as promised. The credit card holders were automatically entitled to refunds
because the fraudulent sales were generated by telephone rather than in person.

6
multiple charges were being made to the same credit card under the same name as well as to

the same card under different names. Mr. Sealander testified that he was aware that duplicate

charges were being made to the same credit card numbers. Mr. Black suggested an easy and

inexpensive means of preventing the duplicate billing of credit card accounts, but Mr.

Sealander rejected the idea. Bank officers at Security National Bank became alarmed after

the appearance of approximately $151,400 in chargebacks from fraudulent credit card sales,

and they closed the Dion Enterprises merchant account on February 15, 1991.

Mr. Veatch scheduled a meeting with bank personnel to discuss the matter, but he did

not appear for the meeting. After Security National Bank terminated the merchant account,

Dion Enterprises vacated its office space without giving notice. Mr. Sealander had computer

equipment removed from the business premises so that the bank could not seize it. Security

National Bank ultimately sustained a loss of approximately $96,000, and never heard from

Dion Enterprises again. The ending balance of the Dion Enterprises account at Central Bank

was $8.91.

Messrs. Veatch and Sealander were eventually arrested by the FBI near Ft. Worth,

Texas.4 When arrested, Mr. Veatch had in his possession credit cards bearing the name D.W.

4
Testimony about the arrest of Mr. Veatch and his fraudulent banking activities in
Texas was limited by the court to the government’s case against Mr. Veatch. The fact that
Messrs. Veatch and Sealander were arrested together in Texas was presented to the jury by
Mr. Veatch when he ignored a court order not to mention it. (R., vol. III at 501-02, 545-46).
Upon the objection of Mr. Sealander, the court gave a corrective instruction to the jury not
to consider that fact in the case against Mr. Sealander.
(continued...)

7
Franklin, and he was using the name Wesley Franklin. Also, the government discovered that

Mr. Veatch had opened business accounts at Texas banks using an Oklahoma driver’s license

bearing D.W. Franklin’s name.

Messrs. Veatch and Sealander were indicted on June 16, 1993. Mr. Veatch was

charged with fraud and making false statements to a federally insured financial institution,

conspiracy to commit bank fraud, bank fraud, fraudulent use of a social security number, and

money laundering. Mr. Sealander was charged with conspiracy to commit bank fraud, bank

fraud, and money laundering.

On July 19, 1993, the government requested that Mr. Veatch undergo a competency

evaluation. Mr. Veatch was examined by government experts at the Federal Medical Center

in Springfield, Missouri, and later by a private court-appointed psychiatrist, Dr. John Smith

in Oklahoma City. A competency hearing was held December 8, 1993, and the district court

concluded that Mr. Veatch was incompetent to stand trial. United States v. Veatch, 842 F.

Supp. 480, 482 (W.D. Okla. 1993). Mr. Veatch underwent additional observation after he

was transferred to the Federal Medical Center in Rochester, Minnesota. A second report on

his competency was issued, this time by Dr. Mary Alice Conroy. Dr. Smith reviewed Dr.

Conroy’s report and interviewed Mr. Veatch again in late April 1994. After a second

(...continued)
4

8
competency hearing on May 2, 1994, the district court found Mr. Veatch competent to stand

trial after hearing testimony from Drs. Conroy and Smith.

Messrs. Veatch and Sealander were tried jointly. Mr. Veatch represented himself at

trial, with Thomas McCormick, Esq., appointed by the court as standby counsel. At his trial,

Mr. Veatch never denied doing business under the assumed name of his friend, Al Dion. He

stated that he used an assumed name because he was trying to escape persecution and

harassment from the federal government. He claims that Al Dion had given him power of

attorney but that the documents proving this had been stolen from him while he was confined

in the Oklahoma County Jail.

The trial commenced September 12, 1994, and concluded September 19, 1994.

During the second day of the jury’s deliberations, the jury sent the judge a note indicating

that it was hopelessly deadlocked on some of the counts. Over Mr. Sealander’s objection,

the court gave the jury an Allen instruction. Approximately one hour later, the jury returned

its verdicts.

Mr. Veatch was found guilty as charged. He was sentenced to 168 months

imprisonment, five years supervised release, and he was ordered to pay restitution to Security

National Bank in the amount of $96,572.99.

Mr. Sealander was found guilty of bank fraud, not guilty of conspiracy to commit

bank fraud, and not guilty of money laundering. Mr. Sealander was sentenced to twenty-one

9
months imprisonment, three years supervised release, and he was ordered to pay $96,572.99

restitution to Security National Bank.

On appeal Mr. Sealander raises four issues: (1) whether his conviction was supported

by sufficient evidence; (2) whether the district court erred in refusing to instruct the jury on

Defendant’s defense theory; (3) whether the district court unconstitutionally coerced the

jury’s verdict using the Allen instruction; and (4) whether the district court erred at

sentencing by imposing restitution in excess of the amount lost.

Appellate counsel made an appearance for Mr. Veatch and filed a brief. Mr. Veatch’s

counsel raises ten issues on appeal: (1) whether the district court erred in finding Mr. Veatch

competent to stand trial; (2) whether Mr. Veatch’s decision to represent himself was made

knowingly and voluntarily; (3) whether the court erred by failing to inquire about a complaint

by a juror concerning the deliberation proceedings; (4) whether the court unconstitutionally

removed Mr. Veatch from the courtroom during sentencing; (5) whether the court erred in

imposing a two-level increase in Mr. Veatch’s sentence for obstruction of justice; (6) whether

the court improperly ordered Mr. Veatch to pay restitution because of his inability to pay; (7)

whether the court erred in not allowing Mr. Veatch to present a defense; (8) whether

sufficient evidence supported the money laundering charge; (9) whether the trial judge

should have disqualified herself; and (10) whether the court erred in failing to suppress

evidence. Soon after Mr. Veatch’s appellate counsel filed his brief, we granted Mr. Veatch’s

request to dismiss his counsel and permit him to proceed pro se. Mr. Veatch filed an

10
independent pro se brief raising fifty additional issues for us to consider. First, we will

address the issues raised in Mr. Veatch’s counseled brief because they duplicate issues that

he raises in his pro se brief. Then, we will separately address other issues raised in Mr.

Veatch’s pro se brief.

II. Defendant Sealander’s Conviction for Bank Fraud

Defendant Sealander asserts that the evidence of intent to defraud a financial

institution was insufficient to support his conviction under 18 U.S.C. §§ 1344(1), 2(b).

Sufficiency of the evidence is a question of law which we review de novo. United States v.

Markum, 4 F.3d 891, 893 (10th Cir. 1993). Evidence is sufficient to support a conviction if,

viewed in the light most favorable to the government, the evidence allows a rational trier of

fact to conclude that the government proved the essential elements of the crime charged

beyond a reasonable doubt. Id. Issues of credibility are within the jury’s province, and it

may “draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia,

443 U.S. 307, 319 (1979).

Title 18 U.S.C. § 1344 provides in relevant part, “Whoever knowingly executes, or

attempts to execute, a scheme or artifice-- (1) to defraud a financial institution . . . shall be

fined not more than $1,000,000 or imprisoned not more than 30 years, or both.” As defined

by Congress, “[T]he term ‘scheme or artifice to defraud’ includes a scheme or artifice to

deprive another of the intangible right of honest services.” 18 U.S.C. § 1346. Mr. Sealander

11
was also prosecuted under 18 U.S.C. § 2(b), which provides, “Whoever willfully causes an

act to be done which if directly performed by him or another would be an offense against the

United States, is punishable as a principal.” Thus, in this case the government had to prove

beyond a reasonable doubt that Mr. Sealander knowingly executed or attempted to execute

the scheme charged, or that he willfully caused its execution with the intent to defraud the

bank.

The evidence showed the following: Mr. Sealander was aware of the business from

its beginnings; he had prior business ventures with Mr. Veatch; he knew Mr. Veatch was

using Mr. Dion’s name after he had died; he managed Dion Enterprises and knew about

overbilling on the credit cards charged at Security National Bank; and he signed a signature

card at Central Bank, leases, and a wire transfer. In short, the record is replete with evidence

that Mr. Sealander had the necessary criminal intent and, in fact, participated in a scheme to

defraud Security National Bank. Thus, sufficient evidence supported the jury’s finding that

Mr. Sealander was guilty of bank fraud.

III. Defendant Sealander’s Jury Instruction on the Defense Theory

Defendant Sealander claims the trial court erred in refusing to instruct the jury on his

defense theory which concerned the issue of intent. We review jury instructions as a whole

de novo. A criminal defendant is entitled to an instruction on any defense theory finding

support in the evidence and the law, and failure to so instruct is reversible error. United

12
States v. Fox, 902 F.2d 1508, 1516 (10th Cir.), cert. denied, 498 U.S. 874 (1990). Still, trial

judges have considerable discretion in tailoring and formulating jury instructions. Id.

(citations omitted). Although the trial court does not have to use the exact wording of the

instruction tendered by the defendant, the instructions must correctly state the law and fairly

and adequately cover the issues presented. Id. (citations omitted). We are satisfied that,

considering the instructions as a whole, the jury was adequately instructed and took Mr.

Sealander’s defense into account.

Defendant Sealander requested the following jury instruction: “You are instructed

that mere knowledge that an individual uses a fictitious name to open an account at a bank

is insufficient to convict a person of the crime of executing a scheme or artifice to defraud

a financial institution.” (R., doc. 352) (emphasis added). Mr. Sealander relied upon United

States v. Orr, 932 F.2d 330 (4th Cir. 1991), in tendering the jury instruction. The Fourth

Circuit held in Orr that the defendant’s use of a false name in opening an account upon which

he wrote bad checks was not bank fraud in and of itself. Id. at 332. In Orr, the bank suffered

no loss, and no evidence was produced showing that the fictitious name was used with the

intent to defraud the bank. Also, the Orr court stated that it was focusing on whether a

“federal bad check law” was established by 18 U.S.C. § 1344. Orr, 932 F.2d at 332. Orr is

clearly distinguishable from this case. Here, Security National Bank was defrauded of more

than $96,000 as the result of a complex scheme involving a credit card merchant account

under a fictitious name. Evidence--other than the use of the false name--was presented from

13
which a jury could reasonably infer that Mr. Sealander had the intent to defraud Security

National Bank. In refusing to give the instruction, the district court said that it did not find

the facts of Orr applicable to the fact of this case. We agree. Mr. Sealander’s proffered

instruction was an incorrect statement of the law. We believe a jury should be able to draw

a reasonable inference that Mr. Sealander knowingly executed the scheme to defraud the

bank based on his knowledge that Mr. Veatch used Mr. Dion’s name to open the merchant

account at Security Bank. This reasonable inference was supported by other evidence

showing that Mr. Sealander knew Mr. Veatch was misusing the merchant account in Mr.

Dion’s name.

As explained by the district court, Mr. Sealander’s proposed jury instruction was a

“matter for argument to the jury” rather than a statement of the law. (R., vol. IV at 704). The

instructions given were a complete and accurate statement of the law in relation to the issue

of intent. The court’s instruction defining intent to defraud states, “To act with an ‘intent to

defraud’ means to act willfully and with the specific intent to deceive or to cheat, ordinarily

for the purpose of causing some loss to another, or bringing some financial gain or benefit

to oneself.” (R., Doc. 370 (Jury Instruction No. 27)). This definition was followed by a good

faith defense instruction:

Willful intent to defraud is an essential element of Count 3 and thus good faith
on the part of a defendant is a complete defense. The burden of proving good faith
does not rest with the defendants because the defendants do not have any obligations
to prove anything in this case. It is the government’s burden to prove to you, beyond
a reasonable doubt, that each defendant acted with the specific intent to defraud as
charged in the Indictment.

14
 One who expresses an opinion honestly held by him, or a belief
honestly entertained by him, is not chargeable with fraudulent intent even
though his opinion is erroneous or his belief is mistaken; and, similarly,
evidence which establishes only that a person made a mistake in judgment, or
an error in management, or was careless, does not standing alone establish
fraudulent intent.

In determining whether or not the government has proven that a defendant
acted with an intent to defraud or whether that defendant acted in good faith, the jury
must consider all evidence in the case bearing on that defendant’s state of mind.

If the evidence in the case leaves the jury with a reasonable doubt as to whether
a defendant acted with an intent to defraud, the jury must find that defendant not
guilty as to the appropriate charge.

(R., Doc. 370 (Jury Instruction No. 28)). We conclude that the district court properly

instructed the jury on the issue of intent to defraud, and the court was correct in refusing to

give the tendered instruction.

IV. The Allen Instruction

Defendant Sealander next argues that the district court unconstitutionally coerced the

jury’s verdict using an Allen instruction after the jury indicated that it was deadlocked on

four of nine counts.5 We review Allen charge issues on a case-by-case basis to determine

5
The Allen instruction derives its name from jury instructions approved in Allen v.
United States, 164 U.S. 492 (1896). The Court described the instruction as follows:

These instructions were quite lengthy, and were, in substance, that in a large
proportion of the cases absolute certainty could not be expected; that, although the
verdict must be the verdict of each individual juror, and not a mere acquiescence in
the conclusion of his fellows, yet they should examine the question submitted with
(continued...)

15
whether the particular instruction was impermissibly coercive. United States v. Porter, 881

F.2d 878, 888 (10th Cir.), cert. denied, 493 U.S. 944 (1989). As we explained in Porter,

“Some factors considered in making this determination include: (1) The language of the

instruction; (2) its incorporation with other instructions; and (3) the timing of the instruction,

for example, whether given before the jury has commenced deliberations and whether given

before the jury has reached an impasse or deadlock.” Id. (citations omitted).

At 3:50 p.m. on its second day of deliberations, the jury sent the court the following

two notes:

Your Honor, we have reached a consensus on 5 of the 9 counts. We are
hopelessly deadlocked on 4 of the 9 counts. Any further deliberation would
serve no purpose.
....
The jury would like to know what it can or cannot discuss or reveal to anyone after
we are dismissed. Also is there a procedure for filing a complaint regarding the
deliberation proceedings?

(...continued)
5

candor, and with a proper regard and deference to the opinions of each other; that it
was their duty to decide the case if they could conscientiously do so; that they should
listen, with a disposition to be convinced, to each other’s arguments; that, if much the
larger number were for conviction, a dissenting juror should consider whether his
doubt was a reasonable one which made no impression upon the minds of so many
men, equally honest, equally intelligent with himself. If, upon the other hand, the
majority were for acquittal, the minority ought to ask themselves whether they might
not reasonably doubt the correctness of a judgment which was not concurred in by the
majority.

Id. at 501.

16
(R., Docs. 372, 373). Over the objection of Mr. Sealander’s counsel, the court provided the

following modified Allen instruction:

This is an important case. The trial has been extensive. Your failure to agree upon
a verdict will necessitate another trial and require the parties once again to undergo
the investment of time and effort and the stress of trial. The Court is of the opinion
that the case cannot again be tried better or more exhaustively than it has been in [sic]
either side. It is therefore very desirable that you should agree upon a verdict.

The Court does not desire that any juror should surrender his or her
conscientious convictions. On the other hand, each juror should perform his
or her duty conscientiously and honestly according to the law and the evidence.
The verdict to which a juror agrees must of course be his or her own verdict,
the result of his or her convictions and not a mere acquiescence in the
conclusions of his or her fellow jurors.

However, in order to bring all minds to a unanimous result, you must examine the
question submitted to you with candor and with a proper regard in deference to the
opinion of each other.

You should consider that the case must at some time be decided, that you are
selected in the same manner and from the same source from which any future
jury must be and there is no reason to suppose that the case will ever be
submitted to a jury more intelligent, more impartial or more competent to
decide it, or that more or clearer evidence will be produced on one side or the
other. You may conduct your deliberations as you choose but I suggest you
now retire and carefully consider again the evidence in the case.

(R., vol. VI at 920-22). Thereupon, the jury returned to its deliberations. At 4:50 p.m., the

judge had the bailiff give the jury a note stating, “Please let me know whether further

deliberations would be helpful.” (R., vol VI at 924). The jury responded with a note from

the foreman stating, “We have completed our deliberations.” (Id.). The court polled the jury

after the jury provided its verdict finding Mr. Veatch guilty on six of six counts and Mr.

17
Sealander guilty on one of three counts. Each juror responded affirmatively in agreement

with the verdict.

The language of the Allen instruction given by the court is very similar to that which

we upheld in Porter. See Porter, 881 F.2d at 888 n.14. One difference in the instruction

corrected the asserted mistake in Porter that the instruction should not be given in the first

person. The other difference is that the court stated, “Your failure to agree upon a verdict

will necessitate another trial and require the parties once again to undergo the investment of

time and effort and the stress of trial,” instead of, “In light of the importance of this case and

in light of the fact that it has been a trial of some moderate length and magnitude, your failure

to agree on a verdict will necessitate another trial.” We do not find this difference in the

language of the instructions of any import.

Mr. Sealander also asserts the instruction was unconstitutional because it was not

incorporated with other instructions, because it was given as a supplemental instruction after

the jury had begun deliberations, and because it was given after the jury indicated that it was

hopelessly deadlocked. There is no per se rule that an Allen instruction must be incorporated

with other instructions, although it is generally preferable that an Allen instruction be given

the jury at the same time as other instructions. United States v. McKinney, 822 F.2d 946,

951 (10th Cir. 1987). It is well-established, however, that a supplemental Allen instruction

may be given, Lowenfield v. Phelps, 484 U.S. 231, 237 (1988), and we have “previously

emphasized that there is no per se rule against giving an Allen charge after a jury has

18
commenced deliberations.” Porter, 881 F.2d at 889 (citing McKinney, 822 F.2d at 951).

Also, Allen charges given during the course of deliberations are not per se unduly coercive.

See, e.g., McKinney, 822 F.2d at 951 (upholding the instruction when jury reported

agreement on three of thirty-two counts but could not agree on remaining counts). As

evidence of the instruction’s coercive effect, Mr. Sealander points to the jury returning its

verdict on the remaining four counts in less than sixty minutes from the time it received the

supplemental instruction. In McKinney the jury returned its verdict on twenty-nine counts

in only an hour and twenty minutes after receiving its Allen instruction. Id. at 950.

We hold that the instruction was not unduly coercive and the instruction was a proper

exercise of the judge’s duty to guide the jury.

V. Imposition of Restitution in Excess of the Amount Lost

Defendant Sealander claims the district court committed plain error by imposing

restitution at sentencing, which exceeded the amount of money lost by Security National

Bank. Usually our review of the legality of a sentence of restitution is de novo and factual

findings is for clear error. United States v. Herndon, 982 F.2d 1411, 1420 (10th Cir. 1992).

In this case, however, our review is for plain error because Mr. Sealander’s trial counsel

failed to object to the restitution order on this ground. United States v. Wainwright, 938 F.2d

1096, 1098 (10th Cir. 1991). We vacate the restitution order and remand on this issue

19
because the district court plainly erred by imposing restitution on Defendants Veatch and

Sealander in an amount which exceeded the amount lost.

The Victim and Witness Protection Act permits the federal courts to order a defendant

at sentencing to make restitution to any victim of the offense. 18 U.S.C. § 3663(a)(1). We

have previously explained that the purpose of the Act is “to ensure that victims, to the

greatest extent possible, are made whole for their losses.” United States v. Arutunoff, 1 F.3d

1112, 1121 (10th Cir.), cert. denied, 114 S. Ct. 616 (1993). Restitution under the Act,

however, may not be ordered in an amount greater than the total loss caused by a defendant’s

conduct. Id. The statute does not explain how multiple defendants are to be treated, but we

have explained that courts should either apportion the total loss among the defendants or

make the obligation to pay joint and several. Id. at 1121 n.10.

In this case, the district court found that the amount of the loss to Security National

Bank caused by the Defendants’ bank fraud was $96,572.99. The court then ordered Mr.

Sealander to pay $96,572.99 in restitution, and it ordered Mr. Veatch to pay $96,572.99.

During Mr. Sealander’s sentencing hearing, the court acknowledged that “the bank will not

be entitled to recover more than $96,572.99 total.” (R., Sealander Sentencing Tr. at 30

(Dec. 19, 1994)). Nevertheless, the court entered restitution orders for $96,572.99 to be

repaid by each defendant. Instead, the restitution orders should have reflected either that the

Defendants were joint and severally liable for the full amount or they should have

proportioned the restitution between the two Defendants. The district court exceeded its

20
statutory jurisdiction and imposed an illegal sentence when it ordered restitution in an

amount greater than the total loss caused by the Defendants’ conduct. Thus, the restitution

orders in Mr. Veatch’s and Mr. Sealander’s cases must be vacated and remanded for

resentencing.

VI. Mr. Veatch’s Competency to Stand Trial

Defendant Veatch asserts that the district court erred in finding him competent to

stand trial. We must accept the district court’s determination that a defendant is competent

to stand trial unless the conclusion is clearly erroneous. United States v. Baca, 687 F.2d

1356, 1361 (10th Cir. 1982). The legal test for competency was set out in Dusky v. United

States, 362 U.S. 402 (1960). In Dusky, the Supreme Court held that the competency of a

criminal defendant depends on whether he “‘has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding--and whether he has a rational as

well as factual understanding of the proceedings against him.’” Id. (citation omitted). We

must rely heavily on the discretion of the trial court in reviewing the trial court’s

determination of whether a defendant is competent to stand trial under 18 U.S.C. § 4241(d).

United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992).

As explained above, the government requested that Mr. Veatch undergo a competency

evaluation. He was examined by government medical experts in Springfield, Missouri, and

later by a private court-appointed psychiatrist, Dr. John Smith in Oklahoma City. Mr. Veatch

21
was initially deemed incompetent to stand trial in December 1993. See United States v.

Veatch, 842 F. Supp. 480, 482 (W.D. Okla. 1993). Mr. Veatch later underwent additional

observation. A second report on his competency was issued, and Mr. Veatch was again

interviewed by Dr. Smith. After a second competency hearing on May 2, 1994, the district

court found Mr. Veatch competent to stand trial.

The issue is whether the government established by a preponderance of the evidence

that Mr. Veatch was competent to stand trial on May 2, 1994. The fact that the district court

initially found Mr. Veatch incompetent does not mean that it could not subsequently find him

competent.6 See Parsons, 967 F.2d at 455-56.

In the second competency hearing, the district court found Mr. Veatch was competent

to stand trial based on the testimony of the government’s witness, Dr. Mary Alice Conroy.

The court found Dr. Conroy’s testimony to be far more in-depth than that of the defendant’s

expert, Dr. Smith. Dr. Conroy stated that she was able to provide a thorough diagnosis

because she had reviewed his entire past record of mental health, and because she had

observed him over an extended period of time for twenty-four hours a day. In her testimony,

Dr. Conroy explained Mr. Veatch’s prior mental examinations and evaluations sufficiently

for the court to understand why Mr. Veatch was doing the things that he was doing.

6
It is noteworthy that in another case where Mr. Veatch was convicted of transporting
property obtained by fraud in interstate commerce, he was found mentally competent to stand
trial. See United States v. Veatch, 674 F.2d 1217, 1220, 1222-23 (9th Cir. 1981), cert.
denied, 456 U.S. 946 (1982).

22
 Dr. Conroy diagnosed Mr. Veatch as having a personality disorder with antisocial and

narcissistic features. She testified that it was her opinion--and the opinion of the staff at the

Federal Medical Center in Rochester, Minnesota--that Mr. Veatch possessed no mental

illness that would impair his contact with reality, that would impair his understanding of the

legal process, or that would impair his ability to consult with an attorney.

Mr. Veatch’s counsel claims that he has a delusional belief that the government is

conspiring against him. Dr. Conroy testified that Mr. Veatch was not delusional. She

supported her opinion by stating that a person who is delusional typically does not deny the

facts giving rise to the appearance of delusion. The psychiatric records of Mr. Veatch

indicate that in the past he did just the opposite of what would be expected if he were truly

delusional. Dr. Conroy also testified that a person who is delusional has a fixed set of

beliefs, and when confronted with the contradictory evidence, will absolutely and

unconditionally defend his beliefs. She then gave two examples of how Mr. Veatch

conducted himself in a manner contrary to that of a delusional person. On cross-examination,

Dr. Conroy was asked whether she felt Mr. Veatch believed his allegations of government

conspiracy, and she answered that she did not believe that he did. She stated that delusional

beliefs do not just suddenly appear, but they develop over a period of time. Mr. Veatch’s

mental health records--including those dating back to Mr. Veatch’s 1980 trial in Arizona--do

not show a past history of delusional beliefs.

23
 Finally, Dr. Conroy testified that she believed Mr. Veatch was malingering, which she

defined as feigning mental illness for secondary gain. She recounted a conversation where

Mr. Veatch indicated that he expected the charges against him would be dropped, not

because of the alleged government conspiracy but because he expected to be found

incompetent as well as nondangerous, thereby resulting in his release from custody in the

future. She stated that three other doctors, while diagnosing Mr. Veatch in the past as

psychotic, gave a secondary hypothesis of malingering. Also, Dr. Conroy testified that one

doctor’s primary diagnosis would have changed to malingering if he had known the nature

of the pending charges against Mr. Veatch.

Mr. Veatch’s counsel also argues that Mr. Veatch’s incompetency is evidenced

through his presentation at his subsequent trial and in these proceedings. In United States

v. Prince, 938 F.2d 1092, 1094 (10th Cir.), cert. denied, 502 U.S. 961 (1991), we explained

that it is appropriate to consider, in addition to the medical evidence, the defendant’s

behavior and demeanor at trial. Mr. Veatch insisted on representing himself, and the district

court conducted a Faretta waiver-of-counsel inquiry. See Faretta v. California, 422 U.S. 806

(1975) (See discussion below.). At the waiver hearing, Mr. Veatch stated that he understood

the possible punishment in the case was death, saying, “The Nazis will damn sure murder

me.” He said he anticipated calling approximately 800 witnesses. Then, the district court

ordered the presence of stand-by counsel, whom Mr. Veatch repeatedly referred to as a

“bozo.”

24
 Before, during, and after the trial, Mr. Veatch filed dozens of frivolous motions. For

example, Mr. Veatch filed several motions requesting court-appointed investigators to

investigate his claim of a government conspiracy. In regard to the conspiracy, Mr. Veatch

wrote:

Veatch and Sealander’s contention is that this is a Political Malicious
Prosecution that involves corruption from the Bush Reagan years that dealt
Drugs, Murder, Extortion etc. through controlled and corrupt prosecutors,
federal police and federal judges. This prosecution was created to silence
Veatch and the alleged law violation was done with the full knowledge of the
D.O.J. for CIA, etc. through Sir Run Run Shaw Commander of the British
Empire (CBE) which is a front for International Spying dealing in Billions of
Dollars in illegal activities.

(R., Doc. 168 at 4). In his appellate pleadings, Mr. Veatch has called the trial judge a “Nazi”

and numerous obscene names.

Despite his petulance and obvious contempt of the court, Mr. Veatch did present a

cogent defense. Among other arguments, he stated in his opening statement that the whole

case boils down to the issue of intent. He told the jury that he had permission to assume Mr.

Dion’s name; he stated that he opened Dion Enterprises so the company would grow; he

stated that the bank was aware that sales would be made by individuals other than Dion

Enterprises’ employees; that an effort was made to develop a system that would prevent

credit card fraud; and that the loss was caused by the bank’s action of closing down the

account--not by his actions or any of his employees. The record indicates that Mr. Veatch

conducted himself as well as or better than any layman would be expected to do under similar

25
circumstances. Also, the court appointed stand-by counsel, which was available to provide

legal advice and authority to Mr. Veatch.

The record shows that the district court carefully considered all of the evidence

relevant to the issue of Mr. Veatch’s competence, and it determined that he was competent

to stand trial. The district court’s finding was not clearly erroneous.

VII. Mr. Veatch’s Waiver of Counsel

Appellant counsel for Mr. Veatch claims that in deciding to represent himself, Mr.

Veatch did not knowingly, intelligently, and voluntarily waive his Sixth Amendment right

to counsel. The question of whether a waiver of counsel is knowing and intelligent is a

mixed question of law and fact which we review de novo. United Sates v. Burson, 952 F.2d

1196, 1199 (10th Cir. 1991), cert. denied, 503 U.S. 997 (1992).

The Sixth Amendment grants a defendant the right to present his own defense. Faretta

v. California, 422 U.S. 806, 819 (1975). A defendant must knowingly, intelligently, and

voluntarily forfeit his Sixth Amendment right to counsel before electing to represent himself.

Id. at 835. “Faretta requires a showing on the record that the defendant who elects to conduct

his own defense had some sense of the magnitude of the undertaking and the hazards

inherent in self-representation when he made the election.” United States v. Padilla, 819

F.2d 952, 956 (10th Cir. 1987). The Supreme Court has explained, “To be valid such waiver

must be made with an apprehension of the nature of the charges, the statutory offenses

26
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.” Von Moltke v. Gillies, 332 U.S. 708, 723 (1948). We

have made clear “‘that the factors articulated must be conveyed to the defendant by the trial

judge and must appear on the record so that our review may be conducted without

speculation.’” United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990)(citation

omitted). Thus, the trial court must inform the defendant on the record of the nature of the

charges, the range of allowable punishments and possible defenses, and the risks of

proceeding pro se. United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991), cert.

denied, 502 U.S. 1106 (1992).

The record shows that there were numerous discussions with Mr. Veatch concerning

his decision to proceed pro se. The initial discussion occurred during his arraignment. After

a thorough discussion, the magistrate found that Mr. Veatch waived his right to assistance

of counsel, and standby counsel was appointed.

During a hearing on May 2, 1994, the trial court queried Mr. Veatch if he wanted

counsel appointed at government expense. He replied that he did not want appointed

counsel. The court advised him that he could exercise his right of counsel by hiring counsel

of his own choosing. The court advised him that he was facing serious charges with a

possible sentence of thirty years. Mr. John Coyle, who was Defendant’s counsel appointed

for purposes of determining competency, was granted a recess to talk with Mr. Veatch. After

27
the recess, Mr. Veatch informed the court that he wanted to represent himself with the

assistance of Mr. Coyle as standby counsel. He expressed concern, however, that standby

counsel would not maintain attorney-client confidentiality. The court replied that if he

elected to represent himself, standby counsel would be appointed, but the selection of Mr.

Coyle could not be guaranteed. The court provided a financial affidavit to Mr. Veatch and

advised him that he had a week to decide whether he wanted to request court-appointed

counsel, to hire counsel, or to waive his right to counsel.

On May 6, 1994, Mr. Veatch filed a pleading in which he cited to Faretta and stated

that he intended to represent himself. He argued that there was no assurance of

confidentiality with standby counsel. Also, he stated that he would represent himself because

he could not sign the financial affidavit.

Another hearing concerning the issue of counsel was conducted on May 11, 1994.

The court informed Mr. Veatch that under the Criminal Justice Act, he was presumptively

entitled to court-appointed counsel and other services at government expense, and that this

presumption would be indulged to the extent possible. The court summarized the allegations

against Mr. Veatch, the alleged statutory violations, and the maximum potential punishment

he could receive. The court told Mr. Veatch that he would be at an extreme disadvantage

without counsel because he did not have personal access to a law library and because he

could not personally investigate his case due to his incarceration. The court told him he was

proceeding in a complex area where professional training and experience are desired and that

28
an attorney could be aware of potential defenses that he had not considered. He was told that

through standby counsel he could access a law library, legal materials, legal advice, legal

procedures, and an understanding of defenses available in the case.

On May 12, 1994, Mr. Veatch filed a document entitled “Advice to the Court.” There,

he stated, “Ronald Veatch accepts the advice tendered by the Court on the perils of self

representation, desires to represent himself in this matter with the assistance of stand-by

counsel.” (R., Doc. 193).

The record reveals that the trial court did ensure that Mr. Veatch was aware of the

nature of the charges against him, that he knew the statutory violations of which he was

accused, and that he was aware of the maximum sentences for the crimes with which he had

been charged. The court also recognized that Mr. Veatch was aware of some defenses to the

charges against him, and the court further advised him that counsel could assist him with

defenses which he had not already considered.

The questioning of Mr. Veatch by the district court, the advise it gave him, the

availability of standby counsel, his prior experience with the criminal justice system, the

pleadings he filed in this case, and his performance at trial support our conclusion that Mr.

Veatch made a knowing, intelligent, and voluntary waiver of his Sixth Amendment right to

counsel.

VIII. The Jury’s Note Regarding Procedures for Filing a Complaint

29
 Defendant Veatch next claims that he was denied a fair trial when the district court

failed to inquire about jury coercion after receiving a communication from the jury. We

review a district court’s denial of a motion for a new trial premised on allegations of juror

bias or misconduct for an abuse of discretion. United States v. Bradshaw, 787 F.2d 1385,

1390 (10th Cir. 1986). In Bradshaw, we explained:

“A trial court has a great responsibility and wide discretion in dealing
with a motion for a new trial based on allegations of juror misconduct. . . . The
trial judge’s response to such a motion must be guided by the content of the
allegations, including the seriousness and likelihood of the alleged bias, and
the credibility of the source. . . . Something more than an unverified conjecture
is necessary to justify the grant of a new trial where only potentially suspicious
circumstances are shown. . . . And even where juror bias is shown, not every
incident requires a new trial.”

Id. (quoting United States v. Jones, 707 F.2d 1169, 1173 (10th Cir.), cert. denied, 464 U.S.

859 (1983)) (citations omitted).

During deliberation, the jury sent two notes to the judge at the same time. The first

stated that the jury was hopelessly deadlocked on four of the nine counts and that further

deliberation would serve no purpose. The second note reads: “The jury would like to know

what it can or cannot discuss or reveal to anyone after we are dismissed. Also is there a

procedure for filing a complaint regarding the deliberation proceedings.” (R., doc. 372). In

response to the notes, the court gave the jury an Allen instruction. Just prior to the jury

returning to the courtroom with its verdict, Mr. Veatch made an oral motion for a mistrial

because of the note. He interpreted the note to mean that a juror had a fear of physical harm,

fear of threat, or that it was an indication of coercion.

30
 The court denied the motion for mistrial based on a different interpretation of the note.

In response to Mr. Sealander’s objection to the proposed Allen instruction, the court stated

that an Allen charge was appropriate because the second note indicated that the jurors were

complaining about the jury deliberations and they were hopelessly deadlocked. In response

to Mr. Veatch’s concern, the court stated that it would poll the jury. After the jury provided

its verdict, the court did poll the jury, and all jurors indicated that the verdicts were their own.

The cases cited in Mr. Veatch’s counseled brief are inapplicable because they concern

unauthorized contacts with jurors. There is no evidence of unauthorized contacts, and we

do not believe the second note can reasonably be read to mean that someone had

unauthorized contact with a juror. Mr. Veatch asserts that the court should have immediately

conducted an inquiry into the “complaint.” Under the circumstances, however, we agree with

the court’s decision not to immediately inquire into the second note because a trial judge’s

interference with the jury’s deliberations should be minimized. By inquiring into the

“complaint” at the same time as the Allen instruction, the court itself may have been unduly

coercive. The trial court reasonably interpreted the second note to mean that the jurors were

engaged in heated deliberations. The trial court properly handled the situation by refusing

Mr. Veatch’s motion for a mistrial and polling the jury about its verdict. There was no

indication during the polling that any of the jurors were coerced, forced, or threatened into

their verdict. Hence, the district court did not abuse its discretion in denying Defendant

Veatch’s motion for a mistrial.

31
IX. Mr. Veatch’s Removal from the Courtroom During Sentencing

Defendant Veatch next claims the court unconstitutionally removed him from the

courtroom during sentencing. This issue constitutes a mixed question of law and fact which

we review de novo. United States v. Gomez, 67 F.3d 1515, 1528 (10th Cir. 1995), cert.

denied, 116 S. Ct. 737 (1996). A defendant has a right to be present at all critical stages of

a criminal proceeding, including sentencing. Fed. R. Crim. P. 43(a); see United States v.

Behrens, 375 U.S. 162, 165-66 (1963).

During sentencing, the court was speaking with Mr. Coyle, who appeared as counsel

for Mr. Veatch for purposes of sentencing, about Mr. Veatch’s financial situation. During

the conversation, Mr. Veatch interrupted, and the following colloquy occurred:

The Defendant: Oh, please. Would you mind getting me out of here.
The Marshal: Sit down.
The Court: Please remove Mr. Veatch. Mr. Veatch, Mr. Veatch, do you wish
to be present at sentencing?
The Defendant: I don’t want to listen to any more of your crap, Judge.
The Court: Remove Mr. Veatch from the courtroom. He may be returned to the
holdover. You will be sentenced in your absence, Mr. Veatch.
The Defendant: No, I won’t. Not by a legitimate judge but by a bribe-taking
[expletive deleted].

(R., Veatch Sentencing Tr. at 13-14 (Jan. 6, 1995)).

Defendant asserts that his removal was unconstitutional because he “was not

adequately warned by the district court that further outbursts would lead to his immediate

removal from the sentencing hearing.” Appellant Veatch’s Br. at 28. Defendant correctly

states that a defendant may waive his right to be present if he persists in disruptive conduct

32
after being warned by the court that such conduct will result in his removal. Fed. R. Crim.

P. 43(b)(3); Illinois v. Allen, 397 U.S. 337, 343 (1970). This case, however, does not involve

removal after repeated disruptive conduct--although it is indisputable that Mr. Veatch was

being disruptive in the courtroom. Rather, Mr. Veatch made an explicit request to leave the

courtroom: “Would you mind getting me out of here.” The court verified Mr. Veatch’s

intent to be absent during sentencing by asking: “Mr. Veatch, do you wish to be present at

sentencing?” Mr. Veatch responded that he did not want to be present by saying: “I don’t

want to listen to any more of your crap, Judge.” Under the circumstances, the Defendant was

not forcefully removed; rather, Mr. Veatch knowingly and voluntarily waived his right to be

present during his sentencing hearing.

X. Mr. Veatch’s Two-Level Increase for Obstruction of Justice

Defendant Veatch claims the court erred in imposing a two-level increase in his

sentence for obstruction of justice. Our review is a three-step process if a district court

makes an upward departure from the Sentencing Guidelines. United States v. White, 893

F.2d 276, 277-78 (10th Cir. 1990). First, we make a de novo review of whether the

circumstances cited by the district court justify a departure. Id. If a departure is warranted,

then we review the underlying factual determinations for clear error. Id. Finally, we review

the degree of departure for reasonableness. Id.

33
 The Sentencing Guidelines provide: “If the defendant wilfully obstructed or impeded,

or attempted to obstruct or impede, the administration of justice during the investigation,

prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.”

U.S.S.G. § 3C1.1 (Nov. 1, 1994). The sentencing commentary to § 3C1.1 includes examples

of obstruction of justice, such as the “threatening, intimidating, or otherwise unlawfully

influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so.”

U.S.S.G. § 3C1.1, n. 3(a). In imposing the upward departure for obstruction of justice, the

court stated:

Mr. Veatch, as is certainly made obvious by his recent conduct and removal from the
courtroom, has been a difficult defendant. This has been an extraordinarily difficult
case to conduct pursuant to the rules of procedure in this court.

The Sentencing Guidelines permit me to depart in circumstances in which the
particular facts or factors either are not considered by the guidelines or present a
degree of conduct in excess of that which is ordinarily involved. This is the kind of
conduct but not the degree of conduct that is contemplated by the Sentencing
Commission and contained within these guidelines. Specifically I find that, as I
mentioned earlier, Mr. Veatch has threatened, intimidated or otherwise attempted to
unlawfully influence in this case not only his co-defendant but everyone including the
judge, the prosecutors, the law enforcement officers, the U.S. Marshals, the probation
officer involved in his presentence report, the jailers in the county jail where he is
serving detention and his appointed counsel as well as his co-defendant’s appointed
counsel. Mr. Veatch has made threats to everyone of those persons or every class of
persons including more than one in many classes. He has threatened or filed lawsuits,
none of which to my knowledge have ever been served on anyone. He has, in effect,
attempted to bring the system of justice, as it operates in this district, to a complete
halt through his tactics of, for instance, filing endless and repetitive pleadings even
after receiving rulings which clearly apply to the next-filed pleadings. He has taken
inconsistent positions, for example, with respect to the issue of his competency;
claiming that he was competent and then wishing to appeal a finding of competency;
complaining about delays and requesting additional delays; complaining because
hearings were scheduled on motions that he had filed. He has, in effect, testified at

34
 the trial of this action without having been placed under oath or subjecting himself to
cross-examination through his questions and statements to the jury and to witnesses
during trial.

(R., Veatch Sentencing Tr. at 16-17 (Jan. 6, 1995)). The court specifically found that Mr.

Veatch had threatened, intimidated or otherwise attempted to unlawfully influence his co-

defendant, the judge, the prosecutors, the law enforcement officers, the U.S. Marshals, the

probation officer involved in his presentence report, the jailers in the county jail where he

was serving detention and his appointed counsel as well as his co-defendant’s appointed

counsel. The circumstances cited by the district court justified an upward departure for

obstruction of justice pursuant to § 3C1.1.

After reviewing the record, we conclude that the district court was not clearly

erroneous in its finding that Mr. Veatch had threatened, intimidated, or otherwise attempted

to unlawfully influence those involved in his prosecution. Mr. Veatch filed numerous civil

complaints containing an endless stream of pejorative and scandalous allegations involving

Justices, judges, the grand jury, law enforcement agencies, the case agent, the victim of Mr.

Veatch’s scam, three prosecution witnesses, and the prosecutor. Mr. Veatch forced the

recusal of one judge and attempted to force the recusal of the judge who presided over this

case by including them in these patently frivolous lawsuits, which included allegations that

were materially false and utterly absurd. Mr. Veatch challenged payment of court-appointed

35
attorneys and filed a state bar complaint against his standby counsel. Numerous pleadings7

filed by Mr. Veatch contained unfounded allegations of sexual misconduct and other types

of improprieties by parties to the case.

Defendant Veatch contends that he was not acting willfully to obstruct justice, but was

just defending himself. On the contrary, the record reflects a concerted effort by Mr. Veatch

to threaten, intimidate, and unlawfully influence those involved in his criminal prosecution

by abusing and misusing the legal process. Given Mr. Veatch’s flagrant attempt to obstruct

justice, we conclude the two-level upward departure was reasonable.

We conclude that the circumstances justified a departure from the Guidelines, the

supporting factual findings cited by the court were not clearly erroneous, and the two-level

upward departure was not unreasonable.

XI. Defendant Veatch’s Ability to Pay Restitution

Defendant Veatch claims the court improperly ordered him to pay $96,5762.99 in

restitution when there was no evidence of his ability to pay. We review the factual findings

underlying a court’s order to pay restitution for clear error. United States v. Mitchell, 15 F.3d

953, 958 (10th Cir. 1994). A restitution order “must be consistent with a defendant’s ability

to pay.” United States v. McIlvain, 967 F.2d 1479, 1481 (10th Cir. 1992); see also 18 U.S.C.

7
Mr. Veatch filed approximately 150 pleadings, the majority of which were filed in bad
faith and served no purpose other than to hinder and delay the prosecution of his case.

36
§ 3664 (stating that the court shall consider “the financial resources of the defendant” in

determining whether to order restitution).8

Mr. Veatch repeatedly refused to supply financial information to the court. Evidence

presented at trial showed that Mr. Veatch had lived a sumptuous lifestyle prior to being

arrested. At the time he was arrested he had a Cadillac automobile; his house was located

in a high-income residential neighborhood; his house was approximately 5,000 square feet

in size; the house had a guest house, a pool house, and servants’ quarters; and the house was

purchased for $325,000 in June 1992 with Mr. Veatch making a $75,000 cash down payment

on the house. Also, Mr. Veatch owned a company called Service Corporation of America,

Inc.; it was run by Mr. Veatch using the alias name Franklin; and the company had checking

accounts at two different banks in Texas. The record shows Mr. Veatch led a luxurious

lifestyle just prior to his arrest, the uncontested amount of the victim’s loss was $96,572.99,

and he had failed to cooperate with the probation officer in providing financial information.

Therefore, the trial court properly ordered Mr. Veatch to pay restitution. As explained above,

however, we are vacating and remanding the restitution orders of Mr. Veatch and Mr.

8
This statute was amended April 24, 1996, and it now provides: “In each order of
restitution, the court shall order restitution to each victim in the full amount of each victim’s
losses as determined by the court and without consideration of the economic circumstances
of the defendant.” 18 U.S.C. § 3664(f)(1)(A). The amendment appears to modify the
standard for reviewing a defendant’s ability to pay. Our review in this case, however, is
limited to the sentence imposed on the Defendant by the district court prior to the
amendment.

37
Sealander because restitution was ordered in an amount greater than the total loss to the

victim.

XII. Mr. Veatch’s Opportunity to Present a Defense

Defendant Veatch claims the court erred by not allowing him the opportunity to

present a defense. We review the trial court’s evidentiary rulings for an abuse of discretion,

and we will not overrule the trial court’s evidentiary rulings unless we have a definite and

firm conviction that the trial judge made a clear error of judgment. United States v.

Gonzales-Acosta, 989 F.2d 384, 388-89 (10th Cir. 1993). We generally will defer to the

judgment of the trial court because it has the advantage of viewing the witnesses and

assessing the credibility and probative value of offered evidence. Id. at 388.

In this claim, Mr. Veatch asserts that he was unconstitutionally denied the opportunity

to present a defense. Mr. Veatch informed the court that he intended to call approximately

800 witnesses, and the court correctly responded that he could not call witnesses whose

testimony would be cumulative. Limitations exist to a defendant’s right to testify and to call

witnesses in his favor under the Fifth and Sixth Amendments. See Chambers v. Mississippi,

410 U.S. 284, 295 (1973). Both the accused and the government must comply with

established rules of procedure which are designed to promote fairness in the trial. Federal

Rule of Evidence 403 permits a court to exclude relevant evidence which would be a waste

38
of time or cumulative. The district court did not abuse its discretion in placing limits on Mr.

Veatch’s presentation of witnesses which were in accord with established rules of procedure.

Mr. Veatch also argues that he did not have enough time to prepare for trial because

he did not know of the trial date until one week prior to trial. In one of his many motions,

however, Mr. Veatch acknowledges that he knew the date of the trial with twelve days

advance notice. In an earlier pleading, Mr. Veatch agreed to a continuance of the trial until

September 1994. The trial commenced on September 12, 1994, and Mr. Veatch did not have

to begin presentation of his defense until September 16, 1994. Mr. Veatch had ample time

to prepare his defense and subpoena witnesses for trial.

Additionally, Mr. Veatch claims the court should have allowed him to subpoena

witnesses at the government’s expense. On May 13, 1994, Mr. Veatch’s request to proceed

in forma pauperis was granted by the trial court, even though he failed to establish that he

was indigent. On August, 5, 1994, he withdrew his prior request to proceed in forma

pauperis because he did not want to disclose financial information about himself. A

defendant cannot proceed in forma pauperis unless he first establishes a financial inability

to pay the required filing fees. See 28 U.S.C. § 1915(a). Thus, this issue is without merit.

XIII. Mr. Veatch’s Money Laundering Charge

Defendant Veatch asserts that insufficient evidence supported his conviction for

money laundering because the government did not prove that the “transactions were designed

39
to conceal the nature, the location, the source, or ownership of the control of the funds”

pursuant to 18 U.S.C. § 1956(a)(1)(B)(I).9 Appellant Veatch’s Br. at 45. Defendant,

however, was indicted and found guilty of violating § 1956(a)(1)(A)(i), which does not

include “concealment” as an element. To convict Mr. Veatch of a violation of 18 U.S.C.

§ 1956(a)(1)(A)(i), the government had to prove that (1) the defendant conducted or

attempted to conduct a financial transaction, (2) which the defendant knew involved the

proceeds of unlawful activity, (3) with the intent to promote or further unlawful activity.

United States v. Torres, 53 F.3d 1129, 1136 (10th Cir.), cert. denied, 115 S. Ct. 2599 (1995).

It is undisputed that Mr. Veatch conducted the financial transactions at issue and that

the proceeds of the transactions were from Dion Enterprises’s business dealings with

Security National Bank. The evidence presented at trial showed that Mr. Veatch used an

assumed name and Social Security Number in applying for a credit card merchant account

in the name of Dion Enterprises at Security National Bank, a financial institution insured by

the FDIC; that he misled Security Bank to believe that Dion Enterprises was a travel agency

that would process only sales made by its employees; that the credit card merchant account

for Dion Enterprises was approved on the basis of his false statements; that approximately

$151,000 of credit card sales not made by Dion Enterprises’s employees were deposited into

the Security National Bank account; that Security National Bank lost $96,000 from

9
We set forth the standard of review for a sufficiency of the evidence issue in Part II.

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chargebacks resulting from unauthorized sales credited against the Dion Enterprises’s

merchant account; that Mr. Veatch again used an assumed name and Social Security Number

to open a checking account at Central Bank in the name of Dion Enterprises; that twice Mr.

Veatch conducted monetary transactions that transferred funds obtained from the

unauthorized credit card charges against the merchant account at Security National Bank to

the Dion Enterprises’s account at Central Bank; and that the transferred funds were used to

promote or further fraudulent activity by paying salaries, rent, and other miscellaneous

business expenses of Dion Enterprises. Clearly, there was sufficient proof from which a

reasonable jury could find Mr. Veatch guilty beyond a reasonable doubt of money laundering

in violation of 18 U.S.C. § 1956(a)(1)(A)(i).

XIV. Bias of the Trial Judge

Defendant Veatch claims the trial judge should have disqualified herself from Mr.

Veatch’s trial. Prior to the first competency hearing, Mr. Veatch filed a motion to have Judge

Cauthron recuse herself, which the judge refused to do. See United States v. Veatch, 842 F.

Supp. 480, 481 (W.D. Okla. 1993). We review a denial of a motion to recuse under 28

U.S.C. § 455(a) for an abuse of discretion. United States v. Cooley, 1 F.3d 985, 994 (10th

Cir. 1993), cert. denied, 115 S. Ct. 2250 (1995). A federal judge should recuse pursuant to

28 U.S.C. § 455(a) if there are grounds to question the judge’s impartiality. See Liljeberg

v. Health Servs. Acquisition Corp., 486 U.S. 847, 861 (1988).

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 Mr. Veatch argues that Judge Cauthron’s impartiality was called into question after

he filed a civil lawsuit against her for racketeering, obstruction of justice, conspiracy to

murder Mr. Veatch, kidnaping and extortion, and other criminal conduct. The allegations

in the complaint were unsubstantiated and facially frivolous. In short, Mr. Veatch’s suit was

an attempt to disqualify all federal judges in the Western District of Oklahoma from sitting

on his criminal case. In the civil action he named all six district court judges for the Western

District of Oklahoma, but Judge Cauthron’s name did not appear in the body of the civil

complaint. Judge Cauthron correctly denied the recusal motion after finding it was merely

an attempt to obtain the forum and judge of his choice. See Veatch, 842 F.2d at 481.

XV. Refusal to Suppress Evidence in Mr. Veatch’s Trial

Defendant Veatch claims the court erred in failing to suppress evidence found when

he was arrested. In reviewing a ruling on a motion to suppress evidence, we examine factual

findings for clear error and conclusions of law for reasonableness under the Fourth

Amendment. United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc).

Federal agents went to Mr. Veatch’s residence to execute arrest warrants for Messrs.

Veatch and Sealander. When Mr. Veatch was arrested, he was observed through a window

in a locked room. As agents attempted to break down the door, Mr. Veatch fled out a

backdoor where he was apprehended by another agent. As Mr. Veatch exited the backdoor,

the agents entered through the front door. The agents testified that they observed in plain

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view a credit card holder containing numerous credit cards as they moved through the room

in pursuit of Mr. Veatch. Objects in plain view can be seized if the agents seizing the

evidence had a right to be in the place where they observed the objects and the objects have

an incriminating character that is immediately apparent. Horton v. California, 496 U.S. 128,

134-36 (1990). The agents in this case had a right to be in Mr. Veatch’s room pursuant to

his arrest warrant, and the credit cards were of an immediately apparent incriminating nature

given the credit card/bank fraud charges on which Mr. Veatch was arrested. Thus, we agree

with the district court’s ruling that the government agents found the credit cards in plain view

during the lawful execution of an arrest warrant.

XVI. Issues Raised in Mr. Veatch’s Pro Se Brief

In addition to the counseled brief filed on behalf of Mr. Veatch, he filed an

independent pro se brief that raises an additional fifty issues for us to consider. We have

reviewed Mr. Veatch’s pro se brief, liberally construing the issues he raises because he is

representing himself. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Most of the issues

that he raises are either duplicative of issues that we have already addressed or they are

facially meritless. For example, some of his issues read:

SPR #1 The district court was erroneous in ordering exclusion of
CIA/AK4 spy operations that would have proven Dion Enterprises as a CIA
asset at the start of the trial and without advance notice to Veatch was clearly
erroneous, as it denied Veatch of his defense in chief, and without any trial
strategy and defense.
....

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 SPR #26 Judges Cauthron and Alley were both clearly erroneous in accepting
between $1 million to $5 million in money (bribes) from Sir Run Run Shaw, who is
the CIA asset front for Asia. Veatch had been general counsel to Shaw and his $60
billion worldwide CIA/AK4 operations that dealt directly in worldwide crime, i.e.
murder, drugs, treason, and much more. The multi-billionaire Shaw family is the
richest family in Asia and basically controls Singapore and Hong Kong and S.E. Asia,
to blow the whistle on the Shaw/CIA/AK4 criminal operation, in which Veatch’s
CIA/M16 partner, wife, and 3 children were murdered by the CIA/Mossad in
November, 1992.
....
SPR # 31 The government was vendictive [sic] and outrageous in forcing Veatch
to sleep next to a steel door that slammed at least 500 times a day, 24 hours a day,
thereby, denying Veatch sleep and causing Veatch to be competent [sic] and or totally
mentally and physcially [sic] ill prior to trial and at sentencing.
....
SPR # 43 Double jeopardy as an issue to vacate.

Appellant Veatch’s Pro Se Br. at A, H, M. Many of the “issues” raised by Mr. Veatch are

unsupported, conclusionary, argumentative statements, and they are incomprehensible even

when liberally construed. We will address the following issues, however, which appear to

have some merit when liberally construed.

In issues nine and nineteen Mr. Veatch argues the court violated his Sixth Amendment

right to represent himself by forcing him to have stand-by counsel. The court appointed Mr.

McCormick to serve as stand-by counsel at Mr. Veatch’s trial, and it granted Mr. Veatch’s

request to have Mr. Coyle appointed to serve as Mr. Veatch’s counsel for his sentencing. As

explained above, Faretta recognized a defendant’s Sixth Amendment right of self-

representation. A defendant’s right to appear pro se, however, does not prohibit a court from

appointing stand-by counsel or the unsolicited participation of stand-by counsel. McKaskle

v. Wiggins, 465 U.S. 168, 176-77 (1984). Like Wiggins, Mr. Veatch’s complaint is directed

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at the presence of and unsolicited participation of counsel. Id. at 176. “In determining

whether a defendant’s Faretta rights have been respected, the primary focus must be on

whether the defendant had a fair chance to present his case in his own way.” Id. at 177.

Mr. Veatch specifically complains that “Bozo McCormick constantly interfered with

Veatch at his trial by sitting next to Veatch so the jury could clearly see the hostility between

Bozo McCormick and Veatch.” Pro Se Veatch’s Br. at C. In Wiggins, the Court refused to

categorically bar the participation of stand-by counsel before the jury. 465 U.S. at 182. The

assistance provided by Mr. McCormick to Mr. Veatch is very similar to that provided by

stand-by counsel to the defendant in Wiggins. Mr. McCormick sat at the defense table with

Mr. Veatch; he appears to have stayed in the background because his name rarely appears in

the trial transcript; and he informed the court that although Mr. Veatch would not

communicate with him, he would continue to make himself available to Mr. Veatch for legal

advice and research. It appears from the record that any disputes between Mr. Veatch and

his stand-by counsel were kept outside the presence of the jury. For example, Mr. Veatch

filed numerous unfounded complaints with the bar against Mr. McCormick. Mr. Veatch

alleged that Mr. McCormick was assisting the prosecution. Near the end of the trial, Mr.

Veatch requested to put Mr. McCormick on the stand as a witness to question him about the

fairness of the trial and about whether he was assisting the prosecution. The court denied Mr.

Veatch’s request, stating that Mr. McCormick’s presence in the hall outside the courtroom

was to smoke, not to engage in secret communications with the prosecution. As in Wiggins,

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Mr. McCormick’s involvement was irreproachable under the circumstances; it did not

interfere with Mr. Veatch’s actual control over his defense; and it cannot reasonably be

viewed as undermining Mr. Veatch’s appearance before the jury in the status of a pro se

defendant.

In issue ten, Mr. Veatch claims the court violated his right to have court-appointed

expert witnesses and a private investigator. Prior to trial, Mr. Veatch filed several motions

requesting court-appointed expert witnesses and investigators to investigate his claim of a

government conspiracy. The district court denied the motions. We review the court’s denial

of a defendant’s motion to appoint an investigator or an expert for abuse of discretion.

Matthews v. Price, 83 F.3d 328, 335 (10th Cir. 1996) (citation omitted). A defendant

requesting appointment of an investigator or expert bears the burden of demonstrating with

particularity that he is indigent and that “‘such services are necessary to an adequate

defense.’” Id. (citation omitted). Mr. Veatch repeatedly refused to provide financial

information to show that he was indigent, and the reason for his request--to investigate and

testify about his conclusory assertion that he was the subject of a CIA conspiracy--did not

show that the services were necessary to an adequate defense. We conclude that the court

did not abuse its discretion in denying Mr. Veatch’s request for court-appointed expert

services.

Mr. Veatch argues in issue seventeen that he was denied a fair trial because the jury

contained a social security employee when one of the charges against him was for the

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fraudulent use of a social security number. During voir dire, the court asked whether the

jurors or their family worked for the federal government, and one juror responded that she

worked as a claims representative for the Social Security Administration. The court informed

her that the case involved a charge that a social security number had been fraudulently used,

and it asked whether given her employment she would be fair and impartial. The juror

responded that she could serve impartially. Mr. Veatch did not object to the presence of the

Social Security Administration employee on the jury. In a similar case, the Ninth Circuit

Court of Appeals has held that a trial court was not required to exclude a postal service

employee from a jury in a mail fraud case, based on a claim that it could be presumed the

employee would be biased. United States v. Plache, 913 F.2d 1375, 1378 (9th Cir. 1990).

The mere fraudulent use of a social security number does not make all employees of the

Social Security Administration biased. After investigation by the court, there was no

evidence that even a remote relationship existed between the juror’s duties as a claims

representative and the government’s investigation of Mr. Veatch. We conclude that Mr.

Veatch’s right to a fair trial by an impartial jury was not violated under the circumstances of

his case.

In issue twenty-four, Mr. Veatch claims the court erred by not permitting him to make

objections to the Presentencing Report. A review of Mr. Veatch’s sentencing hearing

transcript during the period prior to when he requested to be removed shows that this claim

is meritless. Mr. Veatch filed several motions challenging his sentencing and the

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presentencing report. Prior to sentencing Mr. Veatch had the opportunity to review the final

presentencing report, and he was provided an opportunity during sentencing to object to the

final report.

Mr. Veatch claims in issue twenty-seven that the court erred in not ordering a

severance of trials. Generally, “persons indicted together are tried jointly.” United States

v. Martinez, 76 F.3d 1145, 1152 (10th Cir. 1996). “A defendant must show actual or

threatened deprivation of his right to a fair trial” in seeking severance. Id. Neither Messrs.

Veatch nor Sealander requested a severance of trial prior to trial. Thus, this claim has no

merit.

In issue forty-six Mr. Veatch argues that the district court erred in refusing to allow

him to inform the jury that they could nullify the law. The court did prohibit Mr. Veatch

from arguing to the jury that it could nullify the law in the following exchange:

Mr. Veatch: There’s little to add except to provide you that the U.S.
Constitution is the supreme law of the land. The Bill of Rights and the U.S.
Constitution I believe in with all my heart. I love what’s left of our
Constitution. You have the power to either go ahead and give me to these
people. [sic] There’s no doubt in your mind take [sic] they’re my enemy.
That’s been testified to. You have the power as jurors to nullify any law--
Mr. Borden: I object to the arguments, Your Honor. That is not the law and it’s
contrary to the instruction of this Court.
The Court: Sustained.
Mr. Veatch: You have the right to vote your conscience, to judge both facts and law.
When you leave here today to go make your decision, I hope you’ll look at me as a
human being and not like one of them.

(R., Vol. V at 900). Although Mr. Veatch disregarded the court’s order and continued with

his improper argument, the court’s order was correct. Neither a judge nor a party can

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encourage a jury to disregard the law. See United States v. Grismore, 546 F.2d 844, 849

(10th Cir. 1976) (holding that a criminal defendant is not entitled to have the jury instructed

that they could disregard the law); United States v. Trujillo, 714 F.2d 102, 106 (11th Cir.

1983)(holding that defense counsel may not argue jury nullification during closing

argument). Thus, the court did not error in prohibiting Mr. Veatch’s argument to the jury that

it could disregard the law.

The convictions and sentences of Defendants Veatch and Sealander are AFFIRMED.

The restitution orders against Defendants Veatch and Sealander are VACATED. The cases

of Messrs. Veatch and Sealander are REMANDED for resentencing consistent with this

opinion.

Entered for the Court

Michael R. Murphy
Circuit Judge

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