RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. McBride No. 02-3931
ELECTRONIC CITATION: 2004 FED App. 0093P (6th Cir.)
File Name: 04a0093p.06 _________________
OPINION
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT RONALD LEE GILMAN, Circuit Judge. James Thomas
_________________ McBride was convicted of (1) presenting a false claim against
the IRS, and (2) various obstruction of justice and bankruptcy
UNITED STATES OF AMERICA , X fraud charges based upon certain financial transactions he
Plaintiff-Appellee, - initiated that were related to a tax evasion case against his
- girlfriend. He insisted on proceeding without the assistance
- No. 02-3931 of counsel at his trial. The jury convicted him on all counts.
v. - McBride seeks to overturn his conviction on the basis that his
> waiver of counsel was ineffective and because the evidence
, against him was allegedly insufficient. For the reasons set
JAMES THOMAS MCBRIDE, -
Defendant-Appellant. - forth below, we AFFIRM the district court’s determination
that McBride effectively waived his right to counsel at all
N stages of the proceedings and that there was sufficient
Appeal from the United States District Court evidence to convict him on Counts 2-6, but REVERSE
for the Southern District of Ohio at Columbus. McBride’s conviction on Count 1 because there was
No. 02-00060—George C. Smith, District Judge. insufficient evidence to support the verdict on that charge.
We also VACATE McBride’s sentence and REMAND for
Argued: February 5, 2004 resentencing consistent with this opinion.
Decided and Filed: March 30, 2004 I. BACKGROUND
Before: NELSON, GILMAN, and ROGERS, Circuit A. Factual background
Judges.
Katina Kefalos was convicted by a jury, in proceedings
_________________ before District Judge Algenon L. Marbley, of evading
$12,990.67 in federal income taxes. Kefalos was McBride’s
COUNSEL girlfriend. During the course of her trial, Kefalos fired the
two attorneys—David Axelrod and Terry Sherman—who
ARGUED: Robert J. Dunn, Bay City, Michigan, for were appointed to represent her. Prior to Kefalos’s
Appellant. Daniel Allen Brown, ASSISTANT UNITED sentencing, McBride sent a check for the $12,990.67 to IRS
STATES ATTORNEY, Columbus, Ohio, for Appellee. revenue agent Margaret Nypaver, who had unsuccessfully
ON BRIEF: Robert J. Dunn, Bay City, Michigan, for attempted to collect this sum from Kefalos and who testified
Appellant. Daniel Allen Brown, ASSISTANT UNITED against her at trial. McBride knew that his check would
STATES ATTORNEY, Columbus, Ohio, for Appellee. “bounce” because it was drawn on an account that he had
1
No. 02-3931 United States v. McBride 3 4 United States v. McBride No. 02-3931
closed one year earlier. He then submitted bad checks from McBride responded that he had been a criminal defendant
the same account to the Franklin County Treasurer’s Office before, that he had assisted other people in representing
to purportedly pay the real estate taxes for the first half of themselves in several cases, and that he had participated in
2001 on the residences of Judge Marbley, attorneys Axelrod both federal and state criminal proceedings. The court then
and Sherman, and agent Nypaver. went over each count of the indictment in detail and stressed
the severity of the penalties involved, including the possibility
The Treasurer’s Office, without waiting to see if the checks of consecutive sentences. With the following exchange, the
would clear, issued statements to McBride acknowledging court closed this line of questioning:
that he had paid these real estate taxes. McBride then used
the statements as evidence of his creditor status when he THE COURT: So, you know just exactly how much
subsequently filed four involuntary bankruptcy petitions in jeopardy that you are in, in this
the United States Bankruptcy Court for the Southern District proceeding? You realize that if you
of Ohio against Judge Marbley, attorneys Axelrod and represent yourself, you are on your own?
Sherman, and agent Nypaver. He also paid the $200 filing fee Do you realize that, Mr. McBride?
for each of the bankruptcy petitions with more bad checks
that were drawn on his closed account. MCBRIDE: Yes, sir, I do.
B. Procedural background The court proceeded to ask McBride about his familiarity
with the trial process, the Federal Rules of Evidence, and the
McBride was indicted on the following six felony charges: Federal Rules of Criminal Procedure. McBride expressed
presenting a false claim against the government in violation comfort with these procedural matters. He was then advised
of 18 U.S.C. § 287, obstructing justice in violation of 18 that should he take the stand, he would have to ask questions
U.S.C. § 1503, obstructing the due administration of the of himself and would not be permitted to testify in narrative
internal revenue laws in violation of 26 U.S.C. § 7212(a), and form. Finally, the court issued the following warnings to
three counts of bankruptcy fraud in violation of 18 U.S.C. McBride:
§ 157.
THE COURT: In looking at the charges against you, Mr.
In two appearances before the designated magistrate judge, McBride, and the complexity of this case,
McBride was advised of his right to counsel, including his this is not an ordinary - - this isn’t some
right to appointed counsel if he could not afford to retain an fender bender accident?
attorney. At his arraignment, McBride elected to proceed pro
se. David Graeff was appointed as standby counsel. MCBRIDE: Exactly, sir.
During a pretrial conference, the district court extensively ...
questioned McBride about his decision to represent himself.
McBride was first asked about his educational background THE COURT: At least in the opinion of the Court, you
and then questioned to verify that he was not under the would receive a far better defense if you
influence of prescription medication, narcotics, or alcohol. would proceed with a lawyer, rather than
The court also inquired about McBride’s legal experience. being on your own. And I think it is
No. 02-3931 United States v. McBride 5 6 United States v. McBride No. 02-3931
unwise for you to try and represent under the United States Sentencing Guidelines in accordance
yourself. And while you are familiar with with Offense Level 26, Criminal History Category IV, within
the law, you are not familiar to the depth a range of 92-115 months of imprisonment. It decided that
that would be necessary to give yourself McBride should instead be sentenced under Offense Level 22,
the best possible defense, considering the Criminal History Category IV. The court then sentenced
complexity of what you are charged with. McBride to 78 months of imprisonment on Count 2; 60
months on Counts 1, 4, 5, and 6; and 36 months on Count 3,
MCBRIDE: I understand. all to be served concurrently.
THE COURT: And while you have been in a court II. ANALYSIS
proceeding or maybe more than one,
different things come up at different A. McBride knowingly and intelligently waived his right
proceedings that you may never have seen to counsel
or heard of before. . . . And you have at
your elbow there someone who has had 1. Standard of review
many years of experience in this and other
courts and would be termed probably an McBride argues on appeal that he did not effectively waive
expert on federal trial work. his right to counsel at trial or at sentencing. Both parties
agree that the standard of review for such claims is de novo,
Let me ask you this, Mr. McBride. Is your but neither party provides any citations to applicable Sixth
decision entirely voluntary on your part? Circuit precedent directly on point. Our sister circuits
uniformly apply a de novo standard of review to a district
MCBRIDE: Yes, sir. court’s conclusion of law that a defendant has waived his
right to counsel. See, e.g., United States v. Kimball, 291 F.3d
The district court then concluded that McBride had 726, 730 (11th Cir. 2002); United States v. Turner, 287 F.3d
knowingly and voluntarily waived his right to counsel, that he 980, 983 (10th Cir. 2002); Lopez v. Thompson, 202 F.3d
was competent to do so, and that he had demonstrated an 1110, 1116 (9th Cir. 2000) (en banc).
understanding of the proceedings and the charges he faced.
Graeff was nonetheless requested by the court to continue in In this circuit, however, two trends have developed. We
his role as standby counsel. have on occasion applied “plain error” review to examine the
validity of a defendant’s waiver of counsel. See United States
McBride represented himself throughout his trial with the v. Modena, 302 F.3d 626, 630-31 (6th Cir. 2002) (holding
assistance of Graeff. The jury found him guilty on all counts. that the plain error standard applies where the defendant fails
At sentencing, McBride raised no objections to the to object to continuing his self-representation); United States
Presentence Report and used the hearing to state his view that v. Herrera-Martinez, 985 F.2d 298, 301 (6th Cir. 1993)
the district court and the U.S. Attorney’s Office were engaged (holding that because no specific objection was made at trial
in fraudulent “smoke and mirrors” accounting practices. The to the defendant’s proceeding pro se, the plain error standard
district court sua sponte raised concerns about the probation applied).
officer’s determination that McBride should be sentenced
No. 02-3931 United States v. McBride 7 8 United States v. McBride No. 02-3931
Other panels have approached the waiver-of-counsel issue also Miller, 910 F.2d at 1324 (holding that literal adherence
by omitting discussion of the standard of review and to the recommended battery of questions is not required).
proceeding to engage in a thorough review of the colloquy After the questioning, the district court should make an
between the district court judge and the defendant. See, e.g., express finding on the record that the accused has knowingly
United States v. Colbert, No. 00-1481, 2002 WL 31873484, and voluntarily waived his right to counsel. McDowell, 814
at *3 (6th Cir. Feb. 12, 2002) (unpublished opinion) F.2d at 250.
(reviewing the hearing transcript to determine whether the
judge conducted the model inquiry); Noble v. Wilkinson, No. The model inquiry encompasses thirteen questions and one
92-4121, 1993 WL 436850, at *1 (6th Cir. Oct. 27, 1993) strongly worded admonishment. In the present case, the
(unpublished opinion) (“When reviewing on direct appeal a district court asked McBride, verbatim, twelve of the thirteen
claim of error regarding a waiver of counsel, we examine the questions, and delivered the requisite warning. The only
substantive, detailed inquiry required of the district court question that was not specifically asked was the following:
pursuant to United States v. McDowell”) (citation omitted);
United States v. Miller, 910 F.2d 1321, 1324 & n.3 (6th Cir. Now, in light of the penalty that you might suffer if you
1990) (reproducing the colloquy and holding that it are found guilty and in light of all the difficulties of
constituted an effective waiver). representing yourself, is it still your desire to represent
yourself and to give up your right to be represented by a
Because the result in this case would be the same under lawyer?
either plain error or de novo review, we have no need to
resolve the ambiguity created by the above cases. Instead, we Id. at 252. But the court substantially complied with the
will proceed to examine the district court’s colloquy to essence of this inquiry when it reviewed the maximum
determine whether McBride made an effective waiver of his penalty for each count that McBride faced, asked McBride
right to counsel. whether he realized the jeopardy he was in, and informed him
that he would be on his own if he chose to represent himself.
2. McBride’s waiver of counsel at trial The court also advised McBride that his case was complex
and would be better handled by his standby counsel, who was
Before a criminal defendant may represent himself at trial, an expert at federal trial work.
he must knowingly and intelligently waive his right to
counsel. Faretta v. California, 422 U.S. 806, 835 (1975) After the lengthy colloquy with McBride, the district court
(“[H]e should be made aware of the dangers and asked McBride whether his decision to represent himself was
disadvantages of self-representation, so that the record will “entirely voluntary” and, based upon McBride’s affirmative
establish that he knows what he is doing and his choice is response, made the following finding:
made with eyes open.”) (citation and quotation marks
omitted). Whenever a district court in the Sixth Circuit is The Court finds that the defendant has knowingly and
faced with an accused who wishes to represent himself, the voluntarily waived his right to counsel. The Court also
court must ask the defendant a series of questions drawn finds the defendant is competent to waive his right, as he
from, or substantially similar to, the model inquiry set forth has demonstrated an understanding of the proceedings
in the Bench Book for United States District Judges. United and the factual allegations against him, and I will permit
States v. McDowell, 814 F.2d 245, 250 (6th Cir. 1987); see you to represent yourself.
No. 02-3931 United States v. McBride 9 10 United States v. McBride No. 02-3931
Because the district court substantially adhered to the model United States v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989)
inquiry as prescribed by McDowell, we affirm the court’s (“Once the defendant has knowingly and intelligently waived
conclusion that McBride knowingly and voluntarily waived his right to counsel, only a substantial change in
his right to counsel at trial. circumstances will require the district court to inquire whether
the defendant wishes to revoke his earlier waiver.”); Arnold
3. McBride’s waiver of counsel at sentencing v. United States, 414 F.2d 1056, 1059 (9th Cir. 1969)
(holding that, after a competent waiver of the right to counsel,
McBride next argues that the district court should have a new waiver need not be obtained at every subsequent court
obtained a second, independent waiver of his right to counsel appearance of the defendant); Davis v. United States, 226
at the sentencing phase. The “plain error” standard of review F.2d 834, 840 (8th Cir. 1955) (same).
is appropriate for this contention because, at the start of the
sentencing proceeding, McBride could have objected to This court has held, in a somewhat analogous situation, that
continuing his self-representation. He in fact failed to do so. where a magistrate judge has engaged in the McDowell
See United States v. Modena, 302 F.3d at 630-31. “Plain colloquy with the defendant and found an effective waiver,
error is defined as an egregious error, one that directly leads the district judge is under no obligation to repeat the inquiry
to a miscarriage of justice, or error that is obvious, affects at trial in the absence of any indication from the defendant
substantial rights, and seriously impairs the fairness or that he has had a change of heart. Modena, 302 F.3d at 631.
integrity of the judicial proceedings.” United States v. Both Modena and Napier lead us to adopt the rule set forth
Camejo, 333 F.3d 669, 672 (6th Cir. 2003) (citation and above by our sister circuits that a defendant’s waiver of
quotation marks omitted). counsel at trial carries over to subsequent proceedings absent
a substantial change in circumstances. Because we find the
In an unpublished opinion, this court has held that “[t]he rule to be a sound one, we adopt it as part of this circuit’s
elaborate waiver procedure outlined in McDowell does not jurisprudence.
apply to waiver of counsel during sentencing. The dangers of
self-representation at trial are simply not present at McBride’s behavior at the sentencing hearing also sheds
sentencing.” United States v. Napier, Nos. 88-164, 88-1693, light on the continuing validity of his waiver of counsel. See
88-1763, 88-1765, and 88-1766, 1989 WL 100865, at *5 (6th United States v. Gangler, No. 95-2406, 1997 WL 618783, at
Cir. Sept. 1, 1989). We need not decide whether this is a *2 (6th Cir. Oct. 6, 1997) (unpublished opinion) (holding that
correct holding in the present case. The issue here is the “waiver can be inferred from a defendant’s actions”) (citation
narrower one of whether a defendant’s waiver of counsel at omitted). At sentencing, the district court first asked
trial carries over to the sentencing phase. Other circuits have McBride’s standby counsel if he believed that McBride
held that a valid waiver remains in effect at subsequent understood the Presentence Report. After receiving an
proceedings in the absence of an explicit revocation by the affirmative response, the court asked for any objections to the
defendant or a change of circumstances that would suggest report, resulting in the following exchange:
that the district court should make a renewed inquiry of the
defendant. See, e.g., United States v. Unger, 915 F.2d 759, THE COURT: Mr. McBride, do you wish to have
762 (1st Cir. 1990) (holding that the district court was free to [standby counsel] say anything on your
find that the defendant’s earlier waiver was still in force at the behalf?
sentencing hearing in the absence of intervening events);
No. 02-3931 United States v. McBride 11 12 United States v. McBride No. 02-3931
MCBRIDE: May I speak on my own behalf? In the present case, the district court explicitly told
McBride that it would be unable to assist him in the conduct
THE COURT: You may speak on your own behalf, but of the trial:
please answer the question I asked you. I
just asked you, do you wish to have THE COURT: I cannot tell you how to try your case. I
[standby counsel] speak? can keep everyone, including the
prosecutor under a certain amount of
MCBRIDE: I only wish to speak on my own behalf. control, but I can’t tell you what to do or
when to do it.
THE COURT: Okay. So, the answer is no? You may
speak on your own behalf. MCBRIDE: Right.
McBride’s conduct at sentencing demonstrates that he did THE COURT: And I can’t question witnesses for you or
not wish to revoke his previous waiver of counsel. He cross-examine them or give you a word of
refused to let his standby counsel speak on his behalf to voice advice. The Court desires to be and is,
any objections to the Presentence Report. Because nothing neutral in this and in every other case.
occurred between trial and sentencing that would have
prompted the district court to make a more thorough inquiry MCBRIDE: I understand.
of McBride’s wish to continue to represent himself, we reject
McBride’s claim that his waiver of counsel at trial was not in THE COURT: I will not provide you with personal
force at the sentencing hearing. instruction on courtroom procedure or
perform any legal duties that counsel
B. The district court had no duty to assist McBride in would normally carry out.
the conduct of his own defense
The court then inquired whether McBride was familiar with
McBride also argues that the district court should have both the Federal Rules of Evidence and the Federal Rules of
informed him that he had a right to bring a Rule 29 motion for Criminal Procedure, to which McBride answered in the
a judgment of acquittal either at the close of the government’s affirmative. Under these circumstances, we find McBride’s
evidence or after the close of all the evidence. Fed. R. Crim. contention that the district court had a duty to suggest that he
Proc. 29. The Supreme Court, however, has made clear that make a Rule 29 motion to be without merit.
“[a] defendant does not have a constitutional right to receive
personal instruction from the trial judge on courtroom C. Sufficient evidence supports McBride’s conviction on
procedure.” McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). Counts 2-5, but not on Count 1
“Nor does the Constitution require judges to take over chores
for a pro se defendant that would normally be attended to by McBride next argues that the evidence was insufficient to
trained counsel as a matter of course.” Id. sustain the jury’s guilty verdict on the five counts that he
contests. In order to appeal a jury’s verdict on the basis of
insufficient evidence, the defendant must have moved for
acquittal in the district court pursuant to Rule 29. United
States v. Charles, 138 F.3d 257, 265 (6th Cir. 1998).
No. 02-3931 United States v. McBride 13 14 United States v. McBride No. 02-3931
McBride made no such motion. Because of this failure, the 845 F.2d 1374 (6th Cir. 1988). In both of these situations the
evidence against McBride is reviewed under a “manifest defendant is using fraudulent means to secure an unjustified
miscarriage of justice” standard and “we only reverse a monetary payment from the government. McBride, on the
conviction if the record is devoid of evidence pointing to other hand, convincingly argues that he cannot fall within the
guilt.” United States v. Carnes, 309 F.3d 950, 956 (6th Cir. ambit of this statutory provision because, by sending the IRS
2002) (citation and quotation marks omitted). a bad check for Kefalos’s outstanding tax obligation, he could
not possibly have obtained any money, property, credit, or
In McBride’s brief, he appears at first glance to question the reimbursement from the government in return.
sufficiency of the evidence only for Counts 3-5. But
embedded in his discussion of his waiver of the right to The government devotes only three sentences to McBride’s
counsel is a challenge to the sufficiency of the evidence for contention in its brief. Its position is essentially that “the
his conviction on Counts 1 and 2 as well. McBride concedes presentation of the claim, in this case the bad check, with the
that there was sufficient evidence to convict him on Count 6. knowledge that it is false, . . . comprises the offense.” But no
We will therefore address below the sufficiency of the authority was cited to support its contention, and we have
evidence for Counts 1-5 solely to determine if the record is so found none. One of the citations that the government did
devoid of evidence pointing to guilt as to constitute a provide on this issue actually confirms the plain-meaning
miscarriage of justice. Carnes, 309 F.3d at 956. understanding of § 287, which does not cover McBride’s
conduct. See United States v. Miller, 545 F.2d 1204, 1212
1. Count 1: false claim against the government n.10 (9th Cir. 1976) (observing that the filing of a false tax
return pursuant to a scheme to obtain an unjustified tax refund
The jury found McBride guilty of presenting a false claim constitutes a false claim under § 287) (citation omitted).
against the government, in violation of 18 U.S.C. § 287,
because he sent a governmental agency, the IRS, a bad check Another case relied upon by the government is United
to cover the outstanding tax liability of Kefalos. Section 287 States v. Jackson, 845 F.2d 880 (9th Cir. 1988), cited for the
provides in pertinent part as follows: proposition that § 287 covers situations where the defendant
seeks a “reduction in liability from the government.” Id. at
Whoever makes or presents to any . . . department or 882. The facts in Jackson, however, do not support the
agency . . . any claim upon or against the United States, government’s position in the case before us. In Jackson, the
or any department or agency thereof, knowing such claim defendant received and cashed nine educational benefits
to be false, fictitious, or fraudulent, shall be imprisoned checks from the Veterans Administration (VA) for which he
not more than five years and shall be subject to a fine was later found ineligible. Id. at 881. With the knowledge
.... that he was both ineligible for the benefits and that he had
already deposited the checks, Jackson submitted a claim form
The word “claim” is not defined in the statute. Typical § 287 to the VA stating he had never received the checks and
cases in this circuit have involved the filing of a false tax requesting that they be reissued to him. Id.
return seeking an unjustified tax refund, see, e.g., United
States v. Nash, 175 F.3d 429 (6th Cir. 1999), or the filing of In analyzing the meaning of a false “claim,” the Jackson
a fraudulent claim for Medicare reimbursement for services court stated that the “focus must be on the substance of the
that were never rendered, see, e.g., United States v. Campbell, transaction, the disbursement of government funds, and not on
No. 02-3931 United States v. McBride 15 16 United States v. McBride No. 02-3931
the timing or form of the entry in the government’s 301 F.3d 1000, 1002-3 (9th Cir. 2002) (describing
accounting ledgers.” Id. at 882 (emphasis added). The court Schweitzer’s seminars on the use of fraudulent financial
held that Jackson’s conduct fell within the ambit of § 287 instruments with which to “satisfy” outstanding tax liability
because, by denying that he had received the first set of and seek unjustified refunds from the IRS); United States v.
checks, Jackson sought to avoid reimbursing the government. Wells, 163 F.3d 889, 893 (4th Cir. 1998) (same). In the
Id.; see also United States v. Duncan, 816 F.2d 153, 155 (4th absence of additional information, we will assume for the
Cir. 1987) (holding that submitting a false travel voucher to purposes of analyzing Morgan that the false lien drafts were
obtain credit for previously advanced government funds the equivalent of a bad check.
constitutes a false claim because the government is at risk of
suffering a monetary loss). The key factor that distinguishes Morgan from McBride’s
case is that the defendant in Morgan sought an unjustified
Jackson is easily distinguishable from the present case. payment from the government—a tax refund. McBride, on
The defendant in Jackson did two things that involved the the other hand, did not attempt to elicit a payment from the
disbursement of government funds. He first sought to reduce IRS when he sent it a bad check; he was at most, according to
his liability to the government in the sense that he attempted his brief, trying to harass the IRS and its agent.
to avoid refunding to the government the VA payments that
he had received but to which he was not entitled. Second, he The Morgan court considered the defendant’s false lien
made a false claim upon the government by requesting that draft as a “claim” because “the government would suffer a
these checks be reissued to him. Nothing McBride did, on the monetary loss if she were successful.” 3 Fed. Appx. at 635.
other hand, involved the disbursement of government funds. Morgan’s concern with the potential loss to the government
He neither received any undue payments from the indicates that the real focus of the court was on the unjustified
government nor tried to induce the government to send him refund sought by the defendant, because the government’s
duplicate payments. McBride simply sent the IRS a bad financial position does not change when a proposed payment
check in purported payment of his girlfriend’s tax liability. for taxes owed is returned for insufficient funds; the tax
liability remains outstanding both before and after the bad
The closest case that we have found to the one before us is check or false lien draft is tendered.
United States v. Morgan, 3 Fed. Appx. 633, 2001 WL 123838
(9th Cir. Feb. 12, 2001) (unpublished opinion). In Morgan, The unpublished Morgan opinion has little independent
the Ninth Circuit affirmed the defendant’s conviction under reasoning, relying on Jackson for the proposition that a
§ 287 where she “sought both to pay her tax liability and to “‘claim’ includes seeking a reduction in liability to the
obtain a refund based on lien drafts that she knew to be government.” Id. This phrase—“seeking a reduction in
false. . . .” Id. at 635. We surmise, based on the only other liability to the government”—is taken out of context. As we
federal case to use the term “lien draft,” United States v. have already pointed out, the defendant in Jackson had
Rudd, No. 98-30218, 1999 WL 98618 (9th Cir. Feb. 17, 1999) received prior VA payments from the government for which
(unpublished opinion), which also originates from the United he was ineligible and for which he was seeking replacement
States District Court in Idaho, that these documents were checks. There is a significant difference between filing a
fictitious comptroller warrants distributed by Leroy form to deceive the government about funds that have been
Schweitzer, a ringleader of the Freemen of Montana who advanced and to which one is not entitled, as occurred in
assisted others in tax evasion. See United States v. Finley, Jackson, and simply sending a bad check to purportedly
No. 02-3931 United States v. McBride 17 18 United States v. McBride No. 02-3931
“cover” a person’s tax liability. Similarly, there is a big unjustified refunds); United States v. Hebeka, 25 F.3d 287,
difference between McBride’s conduct, which had no 289, 292 (6th Cir. 1994) (affirming a § 287 conviction for
potential for causing any payment to emanate from the making an unjustified request to the government for
government, and the Morgan lien drafts whose very purpose redemption of $7.2 million worth of food stamps); Campbell,
was to obtain an unjustified tax refund. Because the 845 F.2d at 1381-83 (affirming a § 287 conviction for billing
reasoning of Morgan is unpersuasive and not even a the government’s Medicare program for unperformed medical
permissible citation in its own circuit, see U.S. Ct. of App. services). Because “any ambiguity in criminal statutes [is]
9th Cir. Rule 36-3, we decline to apply it to the present case. resolved against the government and in favor of the criminal
defendant,” United States v. Jolivette, 257 F.3d 581, 584 (6th
Our decision on this issue would have been greatly Cir. 2001), we are loath to adopt a meaning of “false claim”
simplified if § 287 had defined the word “claim,” but it does that is contrary to both the plain meaning of the term and our
not. “When the text of a statute contains an undefined term, circuit’s precedent.
that term receives its ordinary and natural meaning.” The
Limited, Inc. v. Comm’r of Internal Revenue, 286 F.3d 324, After scouring the federal case law, we can find no case
332 (6th Cir. 2002). The leading law dictionary defines a holding that the sending of an insufficient-funds check to the
“claim” as a “[d]emand for money or property as of right.” IRS constitutes a false claim under § 287. We decline, for all
BLACK’S LAW DICTIONARY 247 (6th ed. 1990). Even more the reasons set forth above, to be the first court to do so.
on point, the False Claims Act, 31 U.S.C. §§ 3729-3733, the Because McBride never received any advance payments from
civil counterpart to § 287, defines a “claim” as the government to which he was not entitled, nor could his
action of sending the IRS a bad check have possibly elicited
any request or demand, whether under a contract or any payment from the government, he cannot, as a matter of
otherwise, for money or property which is made to a law, be found liable under § 287. We therefore reverse
contractor, grantee, or other recipient if the United States McBride’s conviction on Count 1.
Government provides any portion of the money or
property which is requested or demanded, or if the 2. Count 2: impeding the administration of justice
Government will reimburse such contractor, grantee, or
other recipient for any portion of the money or property The jury convicted McBride of corruptly endeavoring to
which is requested or demanded. influence, intimidate, or impede the administration of justice,
in violation of 18 U.S.C. § 1503. To sustain a conviction
31 U.S.C. § 3729(c) (emphasis added). under this section, the government must prove that McBride
acted with the intent to influence, in the sense of interfering
Both definitions reaffirm the prevailing understanding in with, judicial proceedings. United States v. Atkin, 107 F.3d
this circuit that a “false claim” for the purposes of § 287 is an 1213, 1218 (6th Cir. 1997). A defendant must “undertake
unjustified demand for money or property from the action from which an obstruction of justice was a reasonably
government. See United States v. Logan, 250 F.3d 350, 357- foreseeable result,” but he need not be successful in his
59 (6th Cir. 2001) (affirming a §287 conviction for filing endeavor. Id. (quotation marks omitted).
forms to induce the government to pay on false HUD/FHA
loan insurance claims); Nash, 175 F.3d at 436-37 (affirming In United States v. Fleming, 215 F.3d 930, 933-38 (9th Cir.
a § 287 conviction for filing fictitious tax returns to obtain 2000), the Ninth Circuit affirmed the conviction of a
No. 02-3931 United States v. McBride 19 20 United States v. McBride No. 02-3931
defendant who attempted to file a $10 million dollar lien on 410 (8th Cir. 1992) (holding that the filing of a false federal
real property owned by the judge who had dismissed the tort claim against an IRS agent was sufficient evidence to
defendant’s civil case. Although the lien was never filed, the allow a jury to conclude that the defendant intended to
defendant’s conduct was considered an attempt to influence impede the administration of the internal revenue laws under
or intimidate the judge, in violation of § 1503. Similar 26 U.S.C. § 7212(a)); United States v. Reeves, 752 F.2d 995,
circumstances are presented here. McBride filed a fraudulent 1001-02 (5th Cir. 1985) (holding that the defendant’s filing of
involuntary bankruptcy petition against Judge Marbley, the frivolous common law liens against an IRS agent constituted
district judge presiding over Kefalos’s trial, in the period a prohibited corrupt endeavor under 26 U.S.C. § 7212(a)).
between her conviction and sentencing. He admitted at his We see no miscarriage of justice in affirming the jury’s
trial that he filed the petition in response to what he perceived verdict on Count 3.
as “injustices” in the Kefalos trial. A reasonable jury could
find that McBride acted with the intent to intimidate Judge 4. Counts 4 and 5: bankruptcy fraud
Marbley as the latter prepared to sentence Kefalos, even
though McBride was unlikely to be successful. We see no The jury convicted McBride of devising or intending to
miscarriage of justice in affirming McBride’s conviction on devise a scheme to defraud Kefalos’s two defense attorneys,
Count 2. Axelrod and Sherman, in violation of 18 U.S.C. § 157.
Section 157 “contains three elements: 1) the existence of a
3. Count 3: impeding the administration of the IRS scheme to defraud or intent to later formulate a scheme to
defraud and 2) the filing of a bankruptcy petition 3) for the
McBride was convicted of corruptly endeavoring to purpose of executing or attempting to execute the scheme.”
obstruct or impede the administration of the internal revenue United States v. DeSantis, 237 F.3d 607, 613 (6th Cir. 2001).
laws, in violation of 26 U.S.C. § 7212(a). “[T]o act corruptly Filing the petition “itself is the forbidden act. . . . Success of
means to act with the intent to secure an unlawful benefit the scheme is not an element of the crime.” Id.
either for oneself or another.” United States v. Winchell, 129
F.3d 1093, 1098 (10th Cir. 1997) (collecting cases). The McBride does not dispute that he filed false involuntary
defendant must also be acting in response to “some pending bankruptcy petitions against Axelrod and Sherman. Attached
IRS action of which [he is] aware.” United States v. Kassouf, to the petitions were official acknowledgments from the
144 F.3d 952, 957 (6th Cir. 1998). Franklin County Treasurer’s Office showing that McBride
had purportedly paid the real estate taxes on Axelrod’s and
McBride filed a fraudulent petition to place Nypaver, the Sherman’s residences for the first half of 2001, thus making
IRS revenue agent assigned to Kefalos’s case, into McBride one of their creditors. A reasonable jury could find
involuntary bankruptcy. Although Kefalos had already been that McBride’s actions evidenced an intent to defraud them of
convicted of tax evasion when McBride filed the petition, the their property. “The statute makes the crime complete upon
IRS still had a pending claim against Kefalos of which the filing of the bankruptcy petition” as long as the scheme or
McBride was aware. A reasonable jury could find that intent to formulate the scheme exists. Id. (emphasis in
McBride’s filing of a false petition against Nypaver was original). Under the circumstances of this case, we see no
intended to intimidate Nypaver or otherwise interfere with the miscarriage of justice in affirming McBride’s conviction on
revenue agent’s efforts to collect the unpaid taxes from Counts 4 and 5.
Kefalos. See, e.g., United States v. Rosnow, 977 F.2d 399,
No. 02-3931 United States v. McBride 21 22 United States v. McBride No. 02-3931
D. McBride’s sentence attorneys Sherman and Axelrod, and agent Nypaver
($1,125,970). The market value of these individuals’
Embedded in McBride’s claim that he did not waive his residences was included because had McBride been
right to counsel at sentencing is a separate complaint about successful in forcing his victims into involuntary bankruptcy,
the district court’s calculation of loss to the victims. But he could have obtained a creditor’s interest in their property.
McBride made no objection to the Presentence Report’s Even though McBride would never have succeeded in
calculation of loss at his sentencing hearing. “[A]bsent plain obtaining possession of his victims’ residences, the district
error, this Court will not address claims of alleged court nonetheless felt obliged to use the residences’ value
misapplication of the [sentencing] guidelines unless the because intended loss is defined as including “harm that
defendant first raised the claim before the district court.” would have been impossible or unlikely to occur.” The U.S.
United States v. Thomas, 24 F.3d 829, 832 (6th Cir. 1994). Sentencing Guidelines provide that where the cumulative loss
exceeds $1 million, the court should increase the base offense
U.S. Sentencing Guidelines § 2B1.1, which addresses level of 6 by 16 levels.
offenses involving fraud and deceit, establishes the sentencing
range for Counts 1, 4, 5, and 6. By operation of the rules for Because it was highly improbable that McBride intended,
aggregating multiple counts, the offense level for the latter or would have been able, to obtain ownership of these
counts also determines the sentencing range for Counts 2 and residences, the district court was troubled by the inclusion of
3. U.S. Sentencing Guidelines Manual ch. 3, pt. D (2003). A the full value of each victim’s home in the loss calculation.
decision to vacate McBride’s sentence for Counts 1, 4, 5, and But the district court concluded that Amendment 617 to the
6 would therefore require remand and resentencing on all of U.S. Sentencing Guidelines, which clarified that “intended
the counts. loss” included unlikely or impossible losses, effectively
overruled the Sixth Circuit’s practice of vacating sentences
Determination of the offense level under § 2B1.1 depends where “the total intended loss bore no relation to ‘economic
on the amount of loss caused or intended by the defendant. reality,’ . . . because . . . the plan had no chance of success.”
The Application Note to this section provides as follows: United States v. Fleming, 128 F.3d 285, 288 (6th Cir. 1997)
(collecting cases); see also United States v. Watkins, 994 F.2d
“Intended loss” (I) means the pecuniary harm that was 1192, 1196 (6th Cir. 1993) (holding that a defendant “may not
intended to result from the offense; and (II) includes be sentenced on the basis of harm that he or she was
intended pecuniary harm that would have been incapable of inflicting”).
impossible or unlikely to occur (e.g., as in a government
sting operation, or an insurance fraud in which the claim The district court nonetheless decided that there were many
exceeded the insured value). variables that can affect a residence’s market value and, “out
of an abundance of caution,” sua sponte reduced the
U.S. Sentencing Guidelines Manual § 2B1.1, cmt. n. 3 (2003). probation officer’s loss figure by 15 percent. This reduced
In the Presentence Report, the probation officer estimated the the total loss that McBride intended to inflict to $970,865.17.
total intended loss at $1,139,760.67, which represented the McBride’s base offense level was thus increased by 14, rather
sum of the bad checks written by McBride to the IRS than 16, levels.
($12,990.67) and to the bankruptcy court ($800), plus the
total market value of the residences of Judge Marbley,
No. 02-3931 United States v. McBride 23 24 United States v. McBride No. 02-3931
On appeal, McBride argues for the first time that the district warranted.” The Sentencing Commission has provided no
court misapplied § 2B1.1. He contends that he did not further guidance regarding the application of this downward
actually intend to acquire his victims’ homes, but rather only departure. We agree, however, with the observation by one
intended to harass the individuals. McBride correctly notes district court that “[b]ecause the loss determination essentially
that pecuniary harm does not include emotional distress. U.S. dictates the severity of the sentence, it is this determination
Sentencing Guidelines Manual § 2B1.1., cmt. n.3. He that will almost always be the subject of departure scrutiny.”
therefore contends that the intended loss was at most only United States v. Roen, 279 F. Supp. 2d 986, 990 (E.D. Wisc.
$800, which is the sum of the four filing fees paid with bad 2003).
checks to the bankruptcy court.
The Roen court described four scenarios in which a loss
The district court properly recognized that Amendment 617 determination may significantly overstate the severity of the
resolved a circuit split regarding the meaning of “intended offense. Id. at 990-91 Only one concerns us here. Where
loss” by clarifying that the definition reached “unlikely or sentencing is based largely or solely on intended loss, a
impossible losses . . . because their inclusion better reflects downward departure may be warranted under the “economic
the culpability of the offender.” U.S. Sentencing Guidelines reality” principle. Id. at 991; see also United States v.
Manual app. C. at 181 (2003). We have previously Stockheimer, 157 F.3d 1082, 1089 (7th Cir. 1998) (same).
acknowledged that “the amendments abandon this circuit’s The underlying theory behind this principle is that “where a
interpretation of intended loss . . . .” United States v. defendant devises an ambitious scheme obviously doomed to
Anderson, 353 F.3d 490, 505 n.13 (6th Cir. 2003). On the fail and which causes little or no actual loss, it may be unfair
other hand, there is surely some point at which a perpetrator’s to sentence based on the intended (but highly improbable)
misperception of the facts may become so irrational that the loss determination from the [§ 2B1.1] table.” United States
words “intended loss” can no longer reasonably apply. For v. Forchette, 220 F. Supp. 2d 914, 924-25 (E.D. Wisc. 2002).
instance, if someone vandalized a federal building by spray
painting an incantation that all government gold shall A court should therefore consider “whether there was any
disappear, the “intended loss” would presumably not be the reasonable possibility that the scheme could have caused the
value of all the gold in Fort Knox, even if the vandal loss the defendant intended.” Roen, 279 F. Supp. 2d at 991.
genuinely believed that all the gold would disappear. This is so because the Sentencing Commission is using
intended loss as a proxy for the defendant’s degree of
McBride’s actions in the case before us, however, do not culpability. U.S. Sentencing Guidelines § 2B1.1 cmt.
rise to that level of irrationality. The probation officer’s background (stating that “loss serves as a measure of . . . the
calculation of intended loss thus appropriately included the defendant’s relative culpability”). The Roen court
total market value of the residences of McBride’s victims, persuasively pointed out that
despite the fact that McBride could never have caused them
to lose their homes. But that is not the end of the matter. [t]hose who devise ridiculous schemes (1) do not
ordinarily have the same mental state and (2) do not
Application Note 18(C) to § 2B1.1 provides: “There may create the same risk of harm as those who devise cunning
be cases in which the offense level determined under this schemes. In short, they are not as dangerous. Thus, it is
guideline substantially overstates the seriousness of the entirely proper to mitigate their sentences by a departure.
offense. In such cases, a downward departure may be
No. 02-3931 United States v. McBride 25 26 United States v. McBride No. 02-3931
Roen, 279 F. Supp. 2d at 991. $80 million and the actual loss was only $200,000, a
downward departure was warranted).
In Roen, the defendant had a life insurance policy valued at
approximately $9,700. He induced the insurance company to The quixotic nature of McBride’s activities had far less
issue him loans against the policy, which he “repaid” by chance of success than the defendant’s scheme in Roen.
writing checks drawn on a closed account. Defendant’s Conceivably, in Roen, a vendor could have provided the
scheme cost the insurance company approximately $19,000. defendant with goods or services before realizing that the
Id. at 986. But the defendant wrote other bad checks, to the check was drawn on a closed account, thereby triggering
tune of $1.2 million, for various high-priced items. None of actual losses. In McBride’s case, it defies common sense to
the recipients of the checks provided defendant with any believe that McBride would have succeeded in forcing Judge
goods or services. Id. at 987. According to the Presentence Marbley, attorneys Axelrod and Sherman, and agent Nypaver
Report, the total loss was approximately $1.26 million—the into involuntary bankruptcy and thereby obtained possession
sum of the actual loss to the insurance company and the of their residences.
intended loss based on the other bad checks. Id. For losses
over $1 million, § 2B1.1 dictates a 16-level enhancement to The disparity between the presumed actual loss of $800 (as
the base offense level of 6. Roen’s total offense level was measured by the bad checks actually deposited by the
thus placed at 22 in the Presentence Report. Id. at 987. bankruptcy court in payment of filing fees) and the intended
loss of $1,139,760.67 is also far greater in McBride’s case—a
Because Roen’s scheme was not so improbable as to defeat ratio of 1:1425— than the disparity in Roen (1:67) and
a finding of intent, the court in Roen accepted Offense Level Stockheimer (1:400). We conclude that the impossibility that
22 as the starting point for sentencing. Id. at 989. But the McBride’s scheme would succeed and the gross disparity
court determined that a downward departure was necessary between the actual loss and the intended loss demonstrate that
because there was no reasonable possibility that Roen’s there is a significant risk that “the offense level determined
scheme could have caused over a million dollars in losses. Id. under this guideline substantially overstates the seriousness
at 992. of the offense. . . [and] a downward departure may be
warranted.” U.S. Sentencing Guidelines Manual § 2B1.1,
The Roen court also discussed a second measure of the cmt. 18(C); see also United States v. Coffman, 94 F.3d 330,
economic reality of the intended harm: “the variance between 336-337 (7th Cir. 1996) (applying the economic reality
the intended loss and the realistic possibility of such a loss.” principle in considering a downward departure under §2B1.1).
Id. at 991 (citing Stockheimer,157 F.3d at 1091). “Of course,
the best evidence of a scheme’s probable success is its actual Despite our conclusion on the merits of this issue, we
success.” Roen, 279 F. Supp. 2d at 991. In Roen, the court recognize the general rule that “a court’s failure to . . . grant
held that “the discrepancy between the actual a downward departure is not reviewable.” United States v.
loss—$19,000—and the intended loss—over $1.2 million— Coleman, 188 F.3d 354, 357 (6th Cir. 1999) (en banc). We
was extreme.” Id. at 992. Because of this disparity, the court will review a failure to depart, however, “if the district court
concluded that a downward departure was warranted. Id.; see judge incorrectly believed that he lacked any authority to
also Stockheimer, 157 F.3d at 1090-92 (holding that where it consider defendant’s mitigating circumstances as well as the
was highly unlikely that the intended loss would have reached discretion to deviate from the guidelines.” Id. (citation
omitted). In such circumstances, we will vacate the
No. 02-3931 United States v. McBride 27 28 United States v. McBride No. 02-3931
defendant’s sentence and remand for reconsideration. United prohibited under the Sentencing Guidelines. The implication
States v. Truman, 304 F.3d 586, 589 (6th Cir. 2002). is that the court was unaware that it could apply the economic
reality principle in considering a downward departure.
To determine whether the district judge believed that there
was no authority to depart, we review the sentencing hearing There is additional evidence to suggest that the district
transcript. United States v. Ebolum, 72 F.3d 35, 37 (6th Cir. court wanted to depart but did not recognize that it could do
1995). Omission from the Presentence Report of any so. First, the court found another way to decrease McBride’s
discussion concerning an applicable downward departure may offense level when it reduced the intended loss figure by 15
also suggest that the court was not aware of its ability to percent because “too many variables exist in determining the
depart. United States v. Hall, 71 F.3d 569, 573 (6th Cir. fair market value of the victims’ homes to use the probation
1995) (holding that the failure of the Presentence Report and officer’s calculations.” The court thus did depart, albeit in a
the district court to consider the applicability of a particular nontraditional manner. Second, the Presentence Report
downward-departure provision, given defendant’s contains no discussion of the circumstances in McBride’s
circumstances, indicated that the court was not aware of its case that might have warranted a downward departure. The
discretion to depart). probation officer in fact recommended enhancing McBride’s
offense level for misrepresentation during a bankruptcy
We typically invoke the above standards when a defendant proceeding and obstruction of justice. Both of these
has made a motion for a downward departure that was recommendations were rejected by the district court.
rejected by the district court. Here, McBride neither objected
to the Presentence Report nor made a motion for a downward The sentencing proceedings strongly suggest that the
departure. The court’s failure to consider sua sponte a district court was disposed to depart downward from the
downward departure must therefore rise to the level of plain initial offense level but, because it erroneously believed that
error before we will consider granting any relief to McBride. the economic reality principle was completely discredited, it
did not invoke the principle in considering a downward
An examination of the sentencing transcript indicates that departure. We are mindful, however, that we are reviewing
the district court was predisposed to reducing McBride’s McBride’s sentence under the plain error standard because he
offense level. The court “question[ed] the appropriateness of failed to object to the Presentence Report and failed to make
including the value of each victim’s home in the loss a motion for a downward departure.
calculation,” recognizing that it did not fit with longstanding
Sixth Circuit practice to “limit[] intended loss to harms the Both the D.C. and Seventh Circuits have held that plain
defendant was actually capable of inflicting.” But the court error may be shown where a defendant fails to make the
assented to the use of the value of the victims’ homes because appropriate objections or motions and the record indicates
Sentencing Guidelines “Amendment [617] resolved . . . the that the district court erroneously believed that it lacked the
application of the economic reality test, and in effect, authority to depart on a particular ground. See United States
prohibited the use of this doctrine under the Sentencing v. Draffin, 286 F.3d 606, 610 (D.C. Cir. 2002) (concluding
Guidelines.” (Emphasis added.) Although Amendment 617 that plain error may lie, notwithstanding defendant’s silence,
did bar the court from applying the economic reality principle where the sentencing court makes plain that it is choosing not
when calculating “intended loss,” there is no basis for the to depart on a particular ground because of the mistaken
district court’s conclusion that the test was categorically belief that it lacks the authority to do so); United States v.
No. 02-3931 United States v. McBride 29 30 United States v. McBride No. 02-3931
Stockheimer, 157 F.3d 1082, 1091 (7th Cir. 1998) (holding the apparently unprecedented magnitude of the
that even where defendants fail to make a motion for a discrepancy between the actual and intended loss, we
downward departure, plain error may be shown where “the conclude that the error seriously affected the fairness of
district court has both a substantive basis and an inclination [McBride’s] sentencing proceedings.
to consider a downward departure”).
Id. at 1092. We therefore vacate McBride’s sentence and
Stockheimer is of particular relevance because, like remand to the district court for resentencing.
McBride, the defendants in that case were sentenced under
§ 2B1.1 and the estimated intended loss significantly As a final caveat, we note that even though our opinion
overstated the seriousness of the actual fraud committed. 153 “reflect[s] a strong conviction that on the basis of the record,
F.3d at 1089-90. Because the defendants failed to make a consideration of a downward departure is appropriate, the
motion for a downward departure, the Seventh Circuit applied actual decision is entirely in the hands of the district court.”
plain error review to this issue. Id. at 1091. Id. The district court has already reduced McBride’s offense
level by somewhat arbitrarily deflating the intended loss
Reviewing the sentencing hearing transcript, the figure. Our point is that this adjustment—and any other
Stockheimer court concluded that the district court appropriate adjustment—should be made through the
erroneously decided that circuit precedent barring downward departure mechanism.
consideration of economic reality when calculating intended
loss also barred the principle from being taken into account in III. CONCLUSION
considering a downward departure. Id. at 1090. This was
held to be an error of law. The Seventh Circuit reaffirmed For all of the reasons set forth above, we AFFIRM
that “the place for mitigation on the basis of a large McBride’s conviction on Counts 2-6, REVERSE his
discrepancy between intended and probable loss is, under the conviction on Count 1, VACATE his sentence, and
guidelines, in the decision whether to depart downward, REMAND for resentencing consistent with this opinion.
rather than in the calculation of the intended loss.” Id. at
1091 (citation omitted).
We agree with our sister circuit that this court should “not
blithely recognize plain error in a sentencing court’s decision
not to depart downward.” Id. But, as in Stockheimer, the
district court below erred in believing that it could not apply
the economic reality principle at all, when in fact it remains
a valid basis for a downward departure. We therefore adopt
the Seventh Circuit’s conclusion that the plain error standard
is met here because
the record suggests that the district court had a legal basis
and some predilection to depart downward, [so] the error
affected [McBride’s] substantial rights. . . . [B]ecause of