United States v. Michael Hickson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4701

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL ANTHONY HICKSON,

Defendant – Appellant.

No. 11-4708

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ALVITA KAREN GUNN,

Defendant - Appellant.

No. 11-4711

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.
ISAAC JEROME SMITH,

Defendant – Appellant.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:09-cr-00213-RWT-2; 8:09-cr-00213-RWT-4; 8:09-cr-00213-RWT-3)

Argued: December 6, 2012 Decided: January 24, 2013

Before SHEDD, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Diaz and Judge Thacker joined.

ARGUED: Andrew Robert Szekely, LAW OFFICES OF ANDREW R. SZEKELY,
LLC, Greenbelt, Maryland; Matthew McGavock Robinson, ROBINSON &
BRANDT, PSC, Covington, Kentucky, for Appellants. Adam Kenneth
Ake, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland,
for Appellee. ON BRIEF: Michael Lawlor, LAWLOR & ENGLERT, LLC,
Greenbelt, Maryland, for Appellant Isaac Jerome Smith; Elita C.
Amato, Arlington, Virginia, for Appellant Alvita Karen Gunn.
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
SHEDD, Circuit Judge:

A jury convicted Michael Hickson, Isaac Smith, and Alvita

Gunn of money laundering, conspiracy to commit wire fraud, and

multiple counts of wire fraud based on their participation in a

massive Ponzi scheme. On appeal, Hickson, Smith, and Gunn

challenge the district court’s decisions to give the jury a

willful-blindness instruction, admit an email from an

unavailable declarant into evidence, and deny their motion for

recusal. Individually, Hickson challenges the district court’s

decision to deny his motion to continue the trial to obtain

substitute counsel, while Smith and Gunn challenge the court’s

refusal to sever their trial from Hickson’s trial. For the

following reasons, we reject these contentions and affirm.

I.

A.

This case arises out of a massive Ponzi scheme that

originated in the Washington, D.C., metropolitan area. Metro

Dream Homes (“MDH”) 1 promised investors that it would pay off

their mortgages in five to seven years if the investors would

1
The scheme involved related companies as well, including
POS Dream Homes and Metropolitan Grapevine LLC. We refer to all
of the companies as MDH for simplicity.

3
enroll their home for a one-time investment of $50,000. 2 MDH

told investors that it invested in automated teller machines,

point-of-sale vending machines (selling items such as calling

cards), and electronic billboards (essentially flat-screen

televisions that displayed advertisements) to generate revenue

to pay the investors’ mortgages. Eventually, the scheme grew

from giving small talks to local investors to making

presentations to more than 500 people in luxury hotels in New

York and Los Angeles.

Hickson, Smith, and Gunn all worked for MDH. Hickson

served as the chief financial officer from December 2006, Smith

as the president from mid-2006 until summer 2007, and Gunn as

the chief financial officer and then as a senior vice president

after Hickson’s arrival. All three worked under Andrew

Williams, the chief executive officer who was also charged for

his role in MDH. 3

In reality, MDH generated virtually no revenue from its

investments and was instead dependent on new investors to pay

the amounts due to previous investors. In August 2007, the

2
Additional homes could also be enrolled, each for an
additional $50,000. The more homes an investor enrolled, the
more benefits (such as sitting on the Junior Board of Directors)
an investor would receive.
3
The case against Williams was severed from the cases
against Hickson, Smith, and Gunn.

4
Washington Post ran a story about MDH that raised questions

about the validity of MDH’s business model. Later that same

month, Maryland officials began investigating the company and

ultimately issued a cease-and-desist order prohibiting the

enrollment of new investors. MDH went to federal court to

enjoin the state from enforcing this order, but the district

court refused to do so because the court believed MDH may in

fact have been a Ponzi scheme. A Maryland state court

eventually ordered MDH into receivership, which revealed debts

of at least $44 million, liquid assets of less than $500,000,

sixty-six automobiles, and that MDH’s investments were

essentially worthless. An Internal Revenue Service

investigation revealed that the scheme had over 1,000 victims

and that of the $78 million received from investors, $42 million

was paid back to other investors.

B.

Based on their roles with MDH, Hickson, Smith, and Gunn

were all charged with one count of conspiracy to commit wire

fraud, in violation of 18 U.S.C. § 1349; fifteen counts of wire

fraud, in violation of 18 U.S.C. §§ 1343 and 2; and one count of

money laundering, in violation of 18 U.S.C. § 1956(h).

5
Additionally, Hickson was charged with making a false

declaration before a court, in violation of 18 U.S.C. § 1623. 4

A week into trial, Hickson told the court that his

relationship with his lawyer, Anthony Martin, was broken and

that he had lost confidence in Martin. Hickson asked the court

to dismiss Martin as his attorney and grant a short continuance

for Hickson to obtain substitute counsel. Hickson explained

that he did not believe Martin adequately understood the

financial complexities of the case and appeared not to know the

witnesses. The district court, outside the presence of the

Government’s lawyers, made further inquiries. Martin denied

being unprepared 5 or unavailable. 6 On multiple occasions,

Hickson raised his objections to having Martin represent him,

and each time the district court noted that Martin was

4
Smith was also charged with bank fraud, in violation of 18
U.S.C. §§ 1344 and 2. This count was severed from the other
counts, and the Government eventually dismissed that count at
sentencing after Smith’s convictions on the other counts.
5
Martin had spent hundreds of hours preparing this case,
examined more than one hundred boxes of documents, and worked
with a forensic accountant in preparing for trial.
6
Hickson notes that Martin was unavailable for over a month
before trial but acknowledges that Martin was involved in a
capital-eligible trial during that time. As for the weekend
preceding Hickson’s attempt to dismiss Martin, Hickson claims
that Martin was unavailable to meet, a position with which
Martin disagreed before the district court, as Martin stated
that he offered to meet with Hickson that Saturday, despite that
day being Martin’s birthday and anniversary.

6
effectively representing Hickson and Hickson needed to work with

Martin. Martin eventually stated that he had never seen this

side of Hickson before and that their relationship appeared to

have broken down. Martin told the court, however, that he would

be willing to continue representing Hickson if that was what the

court wanted him to do. The district court denied Hickson’s

motion for a continuance, noting that no lawyer could adequately

prepare for such a complex trial in just a few days and that the

trial would not be postponed for a new lawyer to prepare.

The next day, Hickson sought to dismiss Martin and proceed

pro se. The district court engaged in a thorough colloquy with

Hickson and ultimately told Hickson that he could either proceed

pro se or with Martin as his attorney. Hickson chose to

represent himself. Martin was appointed as stand-by counsel

with Hickson’s approval.

After Hickson made this decision, Smith moved to sever his

trial from Hickson’s. He repeatedly renewed this motion later

in the trial, joined once by Gunn, and Smith also moved for a

mistrial, based on Hickson’s performance. The district court

denied the motion, observing that Hickson’s allegedly deficient

performance was no worse than some lawyers who appeared in court

and that Hickson had “not done anything terribly extraordinary

that . . . would rise up to the level that would mandate a

mistrial or severance.” J.A. 1669.

7
 During trial, Hickson testified in his own defense, the

only one of the three defendants to do so. Hickson stated that

he warned Williams and others, including Smith and Gunn, of the

problems at MDH but that no one heeded his warnings. Along with

this testimony, he also introduced presentations he had prepared

in November 2006 and July 2007 about the situation at MDH.

The jury convicted Hickson, Smith, and Gunn of conspiracy

to commit wire fraud, wire fraud, and money laundering, and

Hickson of making a false declaration before a court. All three

defendants moved for new trials: Hickson on the basis of not

being granted a continuance to obtain new counsel and Smith and

Gunn on the basis of not having their trials severed from

Hickson’s. The district court denied these motions, and it

sentenced each defendant to a term of imprisonment: Hickson to

120 months, Smith to 70 months, and Gunn to 60 months. All

three defendants timely appealed.

II.

On appeal, Hickson, Smith, and Gunn first challenge the

district court’s decision to give the jury a willful blindness

instruction, arguing that the instruction was not supported by

any evidence that they deliberately ignored information that MDH

was a fraud. We disagree.

8
 We review a district court’s decision to give a willful

blindness instruction and the content of that instruction for

abuse of discretion. United States v. Jinwright, 683 F.3d 471,

478 (4th Cir. 2012). The Government can prove the knowledge

element of a crime by showing that the defendant either had

actual knowledge or was willfully blind to facts he should have

known. See United States v. Abbas, 74 F.3d 506, 513 (4th Cir.

1996). “A willful blindness instruction is appropriate when the

defendant asserts a lack of guilty knowledge but the evidence

supports an inference of deliberate ignorance.” Id. (quoting

United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir. 1993)).

For a district court to give this instruction, “all that is

necessary is evidence from which the jury could infer deliberate

avoidance of knowledge.” United States v. Whittington, 26 F.3d

456, 463 (4th Cir. 1994).

Here, the Government offered ample evidence from which the

jury could infer that Hickson, Smith, and Gunn “deliberately

avoided learning of the scheme” that MDH was running. See

United States v. Mancuso, 42 F.3d 836, 846 (4th Cir. 1994). For

example, the Government introduced an email from Richard

Lipsman, who represented a company that provided payroll

services to MDH, stating that based on the documents he had

reviewed, MDH “can easily be characterized as a fraudulent

scheme.” J.A. 393. Another example is the “Tactical

9
Solution!!!” presentation by Hickson from July 2007 that

highlighted the financial problems at MDH, including the lack of

revenue and massive debt. J.A. 2996—3010. A third example is

the “Metro Dream Home Accounting Overview” that Hickson

presented to Williams and Smith in November 2006. J.A. 3026—32.

This evidence, as well as the testimony of many witnesses,

provided a sufficient basis for a willful blindness instruction.

Accordingly, the district court acted within its discretion when

it gave this instruction to the jury.

III.

Next, Hickson raises two related challenges regarding his

counsel. First, he argues that the district court abused its

discretion by denying his motion for a continuance. Second, he

argues that the district court deprived him of his Sixth

Amendment right to counsel and then abused its discretion by

allowing him to proceed pro se. We disagree with both

arguments.

A.

We review the denial of a motion to continue trial for

abuse of discretion. United States v. Williams, 445 F.3d 724,

739 (4th Cir. 2006). Although the Sixth Amendment guarantees

every criminal defendant right to counsel, it does not guarantee

a defendant court-appointed counsel of his choice. United

10
States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). Rather, the

Amendment guarantees that he will have counsel who can provide

assistance for his defense at trial. United States v. Smith,

640 F.3d 580, 588–89 (4th Cir. 2011) (citing Gonzalez-Lopez, 548

U.S. at 153 (Alito, J., dissenting)). In reviewing the denial

of a substitution-of-counsel claim, we focus on three inquiries:

“(1) the timeliness of the motion; (2) the adequacy of the

court’s subsequent inquiry; and (3) whether the attorney/client

conflict was so great that it had resulted in total lack of

communication preventing an adequate defense.” Smith, 640 F.3d

at 588 (internal quotation mark omitted). This third inquiry

focuses not on whether the lawyer and defendant speak at all,

but rather on whether their relationship is so broken “that the

principal purpose of the appointment—the mounting of an adequate

defense incident to a fair trial—has been frustrated.” Id.

When the relationship reaches that point, the defendant is

effectively denied his Sixth Amendment right to counsel and the

district court should grant the motion for substitute counsel.

Id.

Here, the district court did not abuse its discretion in

denying Hickson’s motion. First, Hickson’s motion was untimely.

He tries to cast the motion as timely because he claims that he

raised the issue as soon as he became aware of it. Before the

district court, however, Hickson admitted that for a two-month

11
period before trial he had no contact with Martin. J.A. 844.

Thus, when Hickson waited until a week into trial to make his

motion, it was untimely because he raised his concerns about

Martin long after they first arose. That Hickson offered a

justification for his delay—that is, that Hickson thought Martin

had provided assurance that he would be ready for trial—does not

change the timeliness of the motion, and the district court did

not have to accept this justification for the delay.

Additionally, in considering Hickson’s motion, the district

court was “entitled to take into account the countervailing

public interest in proceeding on schedule.” United States v.

West, 877 F.2d 281, 286 (4th Cir. 1989); see also United States

v. Mullen, 32 F.3d 891, 895–96 (4th Cir. 1994). Given the delay

that granting a continuance would have caused and the fact that

the district court was “skeptical that [Hickson’s motion was

not] anything other than a strategy move” to delay the trial,

J.A. 907, the district court was within its discretion in

considering the motion to be untimely.

Additionally, the district court’s inquiry was adequate.

Hickson argues that the inquiry was inadequate because the

district court appeared to focus on the sufficiency of Martin’s

performance as counsel under the framework of Strickland v.

Washington, 466 U.S. 668 (1984). This argument misses the mark.

Although the district court did comment on the sufficiency of

12
Martin’s performance, 7 the district court’s inquiry ultimately

went to the relationship between Hickson and Martin, as

evidenced by the district court’s questions and comments that

focused on the status of their attorney-client relationship.

See, e.g., J.A. 850, 907–08.

Finally, the relationship between Hickson and Martin was

not so broken as to require the district court to have granted

substitute counsel to preserve Hickson’s Sixth Amendment right

to counsel. Hickson points to his statements and a statement

from Martin that their relationship was severely strained. J.A.

864–65, 906–07. But the relationship was not nearly so

fractured as Hickson claims, as evidenced by the fact that

Hickson wanted Martin to be his stand-by counsel after Hickson

chose to represent himself and the fact that when Martin was out

sick, Hickson wanted to delay the trial until Martin was back

instead of having another stand-by counsel. J.A. 1007, 1955.

These facts belie Hickson’s characterization of the relationship

as so broken that Hickson could not have an adequate defense

through Martin. Thus, this was not a case in which the district

court had “a myopic insistence upon expeditiousness in the face

7
Hickson also fails to admit that much of his argument in
the district court on this issue focused on Martin’s alleged
unpreparedness for trial. That the district court would also
thus focus on Martin’s performance is understandable. See,
e.g., J.A. 857–61.

13
of a justifiable request for delay [that] render[ed] the right

to defend with counsel an empty formality.” See Ungar v.

Sarafite, 376 U.S. 575, 589 (1964). Rather, the district court

was within its discretion to determine that substitute counsel

was not warranted because Hickson’s relationship with Martin was

not so broken as to deny Hickson’s right to counsel. See Smith,

640 F.3d at 588.

B.

Whether a defendant waives his right to counsel is reviewed

de novo. United States v. Singleton, 107 F.3d 1091, 1097 n.3

(4th Cir. 1997). As noted above, the Sixth Amendment guarantees

a criminal defendant the right to counsel. U.S. Const. amend.

VI. A waiver of that right must be knowing and voluntary.

Singleton, 107 F.3d at 1095. “The determination of whether

there has been an intelligent waiver of the right to counsel

must depend, in each case, upon the particular facts and

circumstances surrounding that case, including the background,

experience, and conduct of the accused.” Johnson v. Zerbst, 304

U.S. 458, 464 (1938).

We review a district court’s decision to allow a defendant

to proceed pro se after a trial has started for abuse of

discretion. Singleton, 107 F.3d at 1096. When a defendant

asserts his right to represent himself after a trial has begun,

that right “may be denied, limited, or conditioned.” Id.

14
 Here, Hickson’s waiver was voluntary. The district court

undertook a long colloquy with Hickson to inquire whether

Hickson was aware of his rights, was familiar with criminal law

and courtroom procedure, and understood what he was doing. J.A.

1007–11. At the end of this discussion, Hickson stated,

“Nobody’s forced me to [waive my right to counsel], Your Honor.”

J.A. 1011. Under these circumstances, Hickson’s waiver was

voluntary.

Faced with this admission, Hickson frames the issue as a

Hobson’s choice. He argues that because he wanted substitute

counsel after the relationship with Martin allegedly broke down,

and once he was faced with keeping Martin or proceeding with no

counsel, he had no meaningful choice. The problem with this

argument is that the relationship with Martin was not so

irrevocably broken. Thus, Hickson did have a choice, and he

made a voluntary choice to waive his right to counsel and

represent himself. See Johnson, 304 U.S. at 464; United States

v. Gallop, 838 F.2d 105, 109 (4th Cir. 1988) (“Since the trial

judge properly exercised his discretion in finding that the

defendant did not have justifiable reasons for requesting a

further substitution of counsel, [the defendant’s] argument that

his waiver was not voluntary is without merit.”).

Having determined that Hickson’s waiver was voluntary, we

next turn to the district court’s decision to allow Hickson to

15
proceed pro se. The district court engaged in a thorough

colloquy with Hickson about his decision, and only after that

discussion did the district court allow Hickson to represent

himself. The district court therefore acted within its

discretion when it allowed Hickson to proceed pro se. See

Gallop, 838 F.2d at 109 (“[O]nce the trial court has

appropriately determined that a substitution of counsel is not

warranted, the court can insist that the defendant choose

between continuing representation by his existing counsel and

appearing pro se.”).

IV.

Finally, Smith and Gunn argue that the district court

abused its discretion by denying their motions to sever, for a

mistrial, and for a new trial after Hickson began representing

himself because of Hickson’s theory of the case. 8 We disagree.

We review a district court’s decision to deny a motion for

a new trial, to sever, and for a mistrial for abuse of

8
Smith and Gunn also argue that they should not have been
tried with Hickson because of Hickson’s deficient performance
representing himself. This argument fails because being tried
with a pro se codefendant is not prejudicial per se, Person v.
Miller, 854 F.2d 656, 665 (4th Cir. 1988), and our review of the
record leads us to agree with the district judge that Hickson’s
performance was not sufficiently prejudicial to Smith and Gunn
as to deny them their right to a fair trial, see J.A. 3546.

16
discretion. United States v. Chong Lam, 677 F.3d 190, 203 (4th

Cir. 2012) (new trial); United States v. Dinkins, 691 F.3d 358,

367 (4th Cir. 2012) (severance); United States v. Johnson, 587

F.3d 625, 631 (4th Cir. 2009) (mistrial).

“The Supreme Court has indicated that ‘[t]here is a

preference in the federal system for joint trials of defendants

who are indicted together.’” United States v. Najjar, 300 F.3d

466, 473 (4th Cir. 2002) (quoting Zafiro v. United States, 506

U.S. 534, 537 (1993)). This preference exists because “[j]oint

trials are more efficient, and ‘generally serve the interests of

justice by avoiding the . . . inequity of inconsistent

verdicts.’” Dinkins, 691 F.3d at 368 (quoting Richardson v.

Marsh, 481 U.S. 200, 210 (1987)) (omission in original).

Based on this preference, “when an indictment properly has

joined two or more defendants under the provisions of Rule 8(b),

severance pursuant to Rule 14 is rarely granted.” Id. A case

should be severed under Federal Rule of Criminal Procedure 14

only when “there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or

prevent the jury from making a reliable judgment about guilt or

innocence.” Zafiro, 506 U.S. at 539. For a court to sever a

trial, the defendant must “establish that actual prejudice would

result from a joint trial, and not merely that a separate trial

would offer a better chance of acquittal.” United States v.

17
Reavis, 48 F.3d 763, 767 (4th Cir. 1995) (internal citation,

quotation mark, and alteration omitted).

Applying these standards, Hickson’s theory of the case did

not warrant the district court severing the trials or granting a

mistrial or new trial. Generally, “mutually antagonistic

defenses are not necessarily prejudicial. Hostility among

defendants, and even a defendant’s desire to exculpate himself

by inculpating others, do not of themselves qualify as

sufficient grounds to require separate trials.” Dinkins, 691

F.3d at 369 (internal citation omitted). Conflicting defenses

warrant separate trials only when there exists “such a stark

contrast presented by the defenses” that the jury must

necessarily disbelieve one defense if it believes the other.

Najjar, 300 F.3d at 474.

In this case, Hickson’s defense was not so mutually

antagonistic to Smith and Gunn’s defense as to require separate

trials. Hickson argued that he told people, including Smith and

Gunn, that MDH had problems but was repeatedly assured that

everything was fine. 9 Smith and Gunn argued that they relied on

9
On this point, Smith and Gunn focus much of their argument
on the “Tactical Solution!!!” presentation from November 2006,
known as Hickson Exhibit 17 at trial. Their arguments are
unpersuasive. Because they did not object to the admission of
this evidence at trial, see J.A. 2476, we review for plain
error, United States v. Brewer, 1 F.3d 1430, 1434 (4th Cir.
1993). Even assuming error, we refuse to recognize it because
(Continued)
18
Williams’s assertions that MDH was fine. That Hickson had some

evidence of having raised his concerns does not make the

defenses inherently contradictory such that the jury could

believe one defense only if it rejected the other. If the jury

had wanted, it could have believed that Hickson, Smith, and Gunn

all relied on Williams’s statements and that Hickson had at some

point raised concerns that were then alleviated and that if

Smith or Gunn were aware of these concerns, their worries were

likewise alleviated. Thus, these defenses were not inherently

at odds such that Hickson, Gunn, and Smith could not be tried

together. See United States v. Allen, 491 F.3d 178, 190 (4th

Cir. 2007) (“Focusing on the efficacy of the defense, however,

overlooks the salient fact that both Reinhardt and Allen

employed essentially the same defense: that neither were

actually engaged in the charged fraudulent scheme and that

Washington and others were the true wrongdoers.”). The district

court therefore did not abuse its discretion in denying the

motions to sever, for a mistrial, and for a new trial.

had Smith and Gunn objected, Hickson could have testified as to
who was present for this meeting and the topic of conversation
at the meeting, thereby putting before the jury evidence of the
fact that Smith and Gunn had knowledge of the financial
condition of MDH.

19
 V.

Based on the foregoing, we affirm the convictions of

Hickson, Smith, and Gunn. 10

AFFIRMED

10
We have examined the remaining issues that Hickson,
Smith, and Gunn raise in their brief and find them to be without
merit.

20