United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2006 Decided December 22, 2006
No. 05-3086
UNITED STATES OF AMERICA,
APPELLEE
V.
BARRY WILLIAM GEWIN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00366-01)
Bruce C. Bishop argued the cause for appellant. With
him on the briefs was Mark J. Hulkower.
Demetra Lambros, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. Ellen R.
Meltzer, Attorney, entered an appearance.
Before: TATEL and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
2
WILLIAMS, Senior Circuit Judge: A federal grand jury
indicted Barry Gewin and several co-defendants on one count
of conspiracy to commit securities and wire fraud, one
substantive count of securities fraud, and six counts of wire
fraud, all in connection with the alleged manipulation and
fraudulent trading of stock in a company called “2DoTrade.”
Gewin and two colleagues were tried jointly before a jury;
three others pled guilty, two of them testifying against Gewin
at trial. Two co-defendants, living overseas, were not
apprehended.
The government describes the case as involving a “pump
and dump” scheme. It argued at trial that Gewin and his co-
conspirators orchestrated a “reverse merger” of a public shell
company and 2DoTrade, a private Nevada corporation which
had no employees or operations and $26 in assets. The group
allegedly secured hidden control of most of the merged
entity’s publicly tradable stock, pumped up the share price
through a campaign of strategically-timed, fraudulent press
releases, and sold its holdings into the artificially inflated
market.
The jury convicted Gewin of conspiracy to commit
securities fraud, the substantive securities fraud count, and
two of the six wire fraud counts. The trial court sentenced
him to 108 months’ imprisonment and three years’ supervised
release, ordered him to pay $1,975,786 in restitution jointly
and severally with his co-conspirators, and imposed a
$500,000 fine.
On appeal, Gewin argues that the district court erred in
allowing him to represent himself at trial without finding that
he knowingly and intelligently waived his right to counsel, in
admitting into evidence statements of Gewin’s co-conspirators
over hearsay objections, and in imposing the $500,000 fine.
We affirm.
3
* * *
Some two months before trial, Gewin discharged his
retained counsel and declared his intention to conduct plea
negotiations on his own behalf. The court urged Gewin to
hire a lawyer, arranged for him to meet with the Federal
Public Defender, and held a hearing on whether Gewin
intended to waive his right to counsel. In the end Gewin
represented himself at trial, for the most part rejecting even
the assistance of stand-by counsel appointed by the court. His
theory that the trial court inadequately vetted his waiver rests
mainly on his contention that the waiver colloquies related
solely to plea negotiations, not trial itself.
A criminal defendant has a constitutional right to
represent himself at trial if he knowingly, intelligently, and
voluntarily waives his Sixth Amendment right to counsel.
Faretta v. California, 422 U.S. 806, 835 (1975). So that the
“record will establish that [the defendant] knows what he is
doing and his choice is made with eyes open,” he must be
made aware of the “dangers and disadvantages of self-
representation.” Id. (internal quotation marks omitted). That
a waiver must be “intelligent” doesn’t mean it must be wise or
even reasonable; it is “undeniable that in most criminal
prosecutions defendants could better defend with counsel’s
guidance than by their own unskilled efforts.” Id. at 834; see
also United States v. Cunningham, 145 F.3d 1385, 1391 (D.C.
Cir. 1998). A defendant’s technical legal knowledge is,
therefore, “not relevant to an assessment of his knowing
exercise of the right to defend himself.” Faretta, 422 U.S. at
836.
To satisfy Faretta, a trial court must engage the defendant
in a “short discussion on the record” about the dangers and
disadvantages of self-representation. United States v. Brown,
823 F.2d 591, 599 (D.C. Cir. 1987). We have characterized as
4
“model” one such colloquy in which the court cautioned the
defendants about the seriousness of the charges against them
and warned that the judge could not assist in their defense,
that the trial would be conducted under the Federal Rules of
Evidence and Criminal Procedure, and that proceeding
without the assistance of a trained lawyer would constitute a
“distinct handicap.” Id. The court asked the defendants
“many times” whether they understood the court’s remarks or
had any questions. Id.
We review de novo whether the record demonstrates a
knowing and intelligent waiver of the right to counsel.
Cunningham, 145 F.3d at 1392. A district court’s
determination about whether a defendant understood warnings
against self-representation, however, is a “pure question of
fact” that we disturb only if clearly erroneous. Id.
At its Faretta hearing, the trial court here engaged in a
wide-ranging colloquy with Gewin, covering topics germane
to both plea negotiations and trial: the elements of offenses
charged; Gewin’s potential sentencing exposure; jury
selection; possible trial defenses and motions; the right to
confront and cross-examine witnesses, remain silent, testify,
subpoena witnesses, and appeal; and the consequences of
taking or not taking the stand. Joint Appendix (“J.A.”) 82-
87/16-29. The court warned Gewin that it could not advise
him how to try his case or conduct plea negotiations; that the
trial would be conducted according to the Federal Rules of
Evidence and Federal Rules of Criminal Procedure; that
Gewin could face special risks proceeding pro se at a trial in
which his co-defendants had legal representation; and that
Gewin would face complications raising objections, cross-
examining witnesses, and conducting direct examination
without a lawyer. J.A. 86/26-27, 88-89/35-37. Gewin
repeatedly indicated he didn’t want a lawyer and that he
understood the risks involved. J.A. 82-89/16-37.
5
In context, the statements Gewin cites to show that the
hearing was limited to plea negotiations merely reflected the
court’s attention to logistical questions that might arise if
Gewin’s case proceeded to trial. The court’s statements that
“we will have a further discussion” if plea negotiations failed
and could “make an independent decision” at that time, for
instance, were made in the course of an extensive discussion
about the merits of securing stand-by counsel early, so that, if
the plea negotiations were to fail, counsel could be available
at trial (both to advise Gewin and be ready to become active
counsel if Gewin gave up self-representation). J.A. 84/18, 89-
90/40-43; see also Order, Apr. 29, 2004, J.A. 121-22 (citing
United States v. Dougherty, 473 F.2d 1113, 1124-25 (D.C.
Cir. 1972) (suggesting “utility” of making amicus counsel
available to pro se defendants)).
The broad range of trial-related concerns discussed at the
Faretta hearing—and the court’s repeated efforts to confirm
there that Gewin understood the discussion and intended to
proceed without a lawyer—amply support the conclusion that
Gewin knowingly and intelligently waived the right to
counsel. Gewin’s contention that he subjectively understood
the waiver to be limited to plea negotiations is also undercut
by his colloquies with the court on the eve of trial, explicitly
addressing the implications for trial of the choice between
self-representation (with or without stand-by counsel) and
representation by counsel. See, e.g., J.A. 206/53-55 (May 5
status conference).
Gewin also asserts that his trial-day request for additional
time to seek counsel demonstrates that he didn’t intend to
waive his Sixth Amendment right. Appellant’s Br. at 14-15,
29-30. But in the lead-up to trial Gewin explicitly and
repeatedly stated that he wanted to proceed without a lawyer.
Just five days before trial, for instance, Gewin stated flatly, “I
am going to not have counsel.” J.A. 210/71; see also J.A.
6
199-200/6-11, 206/55. The district court quite justifiably
characterized Gewin’s trial-day request as “dilatory.” J.A.
303/19.
Viewing the record as a whole, we find the trial court’s
conclusion fully entitled to deference, and hold that Gewin’s
statement does not preclude a finding that he knowingly and
intelligently waived the right to counsel. (We note that Gewin
concedes that the district court acted within its discretion in
denying his request for a continuance, Appellant’s Br. at 15,
30, and does not claim that his trial-day request constituted a
revocation of an earlier waiver.)
Gewin finally points to his pro se, pre-trial submissions to
the court as proof of the pudding—evidencing such a
misunderstanding of the legal system as to foreclose a finding
of intelligent waiver. But the Supreme Court has explicitly
rejected the argument that competence to waive the right to
counsel is predicated on competence to represent oneself at
trial. A defendant’s ability to represent himself “has no
bearing upon his competence to choose self-representation”;
technical legal knowledge is simply “not relevant” to the
Faretta inquiry. Godinez v. Moran, 509 U.S. 389, 399-400
(1993); Faretta, 422 U.S. at 836. And, as we have said, the
record more than supports the conclusion that Gewin in fact
understood the “dangers and disadvantages of self-
representation” when he waived his right to counsel.
* * *
The district court admitted, over hearsay objections and
“subject to connection,” testimony by Gewin’s co-defendants
about the conduct and statements of the scheme’s participants.
At the close of the government’s case, the district court ruled
that a preponderance of the evidence supported a finding that
7
the group had engaged in a common enterprise of stock
promotion, Mem. Op. (June 2, 2004) at 14, J.A. at 771, 784,
which in fact defendant didn’t dispute, id. at 11, J.A. 781.
The court rejected Gewin’s claim, renewed here, that Rule
801(d)(2)(E) of the Federal Rules of Evidence requires, before
admission of co-conspirators’ out-of-court statements, a
showing of an unlawful conspiracy, not merely action in
concert toward a common goal. Id. at 1-10, J.A. at 771-80.
A district court’s interpretation of the Federal Rules of
Evidence is a question of law, which we review de novo. See,
e.g., United States v. Weisz, 718 F.2d 413, 432-35 (D.C. Cir.
1983); accord Hathaway v. Coughlin, 99 F.3d 550, 555 (2d
Cir. 1996).
Rule 801(d)(2)(E) authorizes the admission of an out-of-
court statement “by a coconspirator of a party during the
course and in furtherance of the conspiracy.” Where a
defendant objects to such an admission, however, the district
court must find by a preponderance of the evidence that a
conspiracy existed and that the defendant and declarant were
members of that conspiracy. Bourjaily v. United States, 483
U.S. 171, 175-76 (1987). Although Bourjaily allowed courts
to consider the content of the out-of-court statements in
making this determination, id. at 181, and left open whether
such statements alone could support the necessary finding, id.,
our circuit has held that the finding must rest on some
independent evidence of the conspiracy. United States v.
Gatling, 96 F.3d 1511, 1520-21 (D.C. Cir. 1996). A court can
preliminarily admit hearsay statements of co-conspirators,
subject to connection through proof of conspiracy. See United
States v. Jackson, 627 F.2d 1198, 1218 (D.C. Cir. 1980)
(approving procedure).
Although Rule 801(d)(2)(E) refers to “conspiracy” and
“coconspirators”—potentially giving Gewin’s argument some
8
force on first impression—our precedents hold that the
doctrine is not limited to unlawful combinations. Weisz, 718
F.2d at 433. Rather, the rule, based on concepts of agency
and partnership law and applicable in both civil and criminal
trials, “embodies the long-standing doctrine that when two or
more individuals are acting in concert toward a common goal,
the out-of-court statements of one are . . . admissible against
the others, if made in furtherance of the common goal.” Id.
In support we quoted the 1974 Senate Advisory Committee
note to Rule 801(d)(2)(E), which said that the rule was “meant
to carry forward the universally accepted doctrine that a joint
venturer is considered as a coconspirator for the purpose of
this [R]ule even though no conspiracy has been charged.” Id.
(alteration and emphasis added in Weisz); see also United
States v. Owens, 484 U.S. 554, 562 (1988) (invoking
Advisory Committee note in interpreting Federal Rules of
Evidence).
United States v. Beckham, 968 F.2d 47 (D.C. Cir. 1992),
is not to the contrary. There, we affirmed a conviction on the
ground that hearsay evidence had been properly admitted
under the adoptive admissions exception, Fed. R. Evid.
801(d)(2)(B). 968 F.2d at 51. We discussed (and rejected)
the co-conspirator exception, and noted in passing that the
evidence did not show a “common unlawful objective.” Id.
More pertinently we said that there was, in fact, “scant basis
for inferring . . . a criminal enterprise or . . . any sort of prior
agreement.” Id. (emphasis added). Thus Beckham’s holding
was simply that the co-conspirator exception does not apply
where the evidence fails to show any common undertaking at
all, and its language asserted no requirement that the prior
agreement be unlawful.
Gewin asserts, in turn, that because the joint venture in
Weisz—bribing a United States Congressman—was inherently
illegal, Weisz could not have held that statements of legal joint
9
venturers are admissible under Rule 801(d)(2)(E), and its
discussions of the record were only to show that illegality had
been shown by independent evidence. But Weisz’s discussion
of the record evidence was made in the alternative to its
central holding that such a showing was not required. 718
F.2d at 434.
Gewin also asserts that Weisz should be read not for the
rule that statements of legal joint venturers are admissible
under Rule 801(d)(2)(E), but rather for a narrower proposition
relating to the evidence a court can consider in ruling on
admissibility. In the pre-Bourjaily world of the Weisz
decision, out-of-court declarations were admissible only if a
court found conspiracy entirely on the basis of independent
evidence; hearsay could not, it was said, “bootstrap” itself into
evidence. Glasser v. United States, 315 U.S. 60, 74-75
(1942). In Hitchman Coal & Coke Co. v. Mitchell, 245 U.S.
229 (1917)—a pre-Bourjaily suit by an employer for an
injunction against the attempted unionization of his coal
mine—the Supreme Court held that, at common law, although
independent evidence was required to show the existence of a
combination before out-of-court statements of co-conspirators
were admissible, “[t]he element of illegality may be shown by
the [out-of-court] declarations themselves.” Id. at 249.
Gewin argues that Weisz (decided after the enactment of the
Federal Rules of Evidence) should be read for the analogous
proposition that in deciding admissibility under Rule
801(d)(2)(E), a court must find independent evidence of a
joint venture, but can consider the out-of-court statements in
showing that venture’s illegality. Appellant’s Br. at 35-36.
But this argument cannot survive Weisz’s clear
statements, cited above, that Rule 801(d)(2)(E) is based on
principles of agency and partnership law, that the use of the
term “conspiracy” does not limit the doctrine to unlawful
10
combinations, and that the doctrine applies equally in civil
and criminal cases.
In short, we follow our decision in Weisz and hold that
the district court properly admitted out-of-court statements
upon finding a lawful joint enterprise. Given our holding,
Gewin plainly cannot succeed in arguing that the district
court’s 801(d)(2)(E) ruling constituted a tacit concession that
the government had not shown an unlawful purpose by a
preponderance. The district court simply and properly applied
the law.
* * *
Finally, Gewin claims that the district court erred in
finding that he was or would become able to pay a $500,000
fine.
The now non-mandatory Sentencing Guidelines advise a
district court to impose a fine “except where the defendant
establishes that he is unable to pay and is not likely to become
able to pay any fine.” U.S. SENTENCING GUIDELINES MANUAL
§ 5E1.2(a) (2004). While the Guidelines indicate that a court
should consider the defendant’s ability to pay in determining
the amount of the fine, id. § 5E1.2(d), the sentencing judge is
not required to make explicit findings of fact. United States v.
Mastropierro, 931 F.2d 905, 906 (D.C. Cir. 1991). We
typically review a district court’s implicit findings for clear
error, id. at 907, but the government asserts that the plain error
standard applies here because Gewin did not preserve the
matter for appeal. Because the record provides several
reasons to believe that Gewin was at least “likely to become”
able to pay, we find no error—much less clear or plain error.
Thus we affirm the fine without resolving the parties’ dispute
over the standard of review.
11
Gewin rests on United States v. Anderson, 39 F.3d 331
(D.C. Cir. 1994), rev’d in part on other grounds, 59 F.3d 1323
(D.C. Cir. 1995) (en banc), in which we overturned as clearly
erroneous the imposition of a $1,000,000 fine. There,
recognizing that defendant’s net worth was only about
$96,000, the district court noted vaguely that the defendant
might have additional money in Panama. Id. at 358. But the
record appears to have suggested that such resources were at
best a dim possibility. We observed that “[n]othing in the . . .
record . . . even remotely suggests that [the defendant] could
ever pay a $1,000,000 fine.” Id. The defendant had a net
worth of less than ten percent of the fine imposed, would be
“rather old” to work off the fine after serving his 53-year, 9-
month sentence, and, as an illegal alien, would be subject to
deportation on his release. Id.
Further, as the “not likely to become able to pay” formula
in § 5E1.2(a) indicates, the existence of some uncertainty
about future ability to pay doesn’t preclude imposition of a
fine. In Mastropierro, 931 F.2d at 907-08, for instance, we
affirmed a $5,000 fine despite evidence that defendants had
no “substantial assets”; they could in the future become
employed and pay their fines over time. Moreover, in United
States v. Rezaq, 134 F.3d 1121, 1127, 1140-41 & n.14 (D.C.
Cir. 1998), we affirmed a finding that the defendant had the
ability to pay $254,000 in restitution despite his “limited”
assets and life sentence, based on an admittedly “speculative”
prospect of future earnings from writing books or articles
about his crimes.
Gewin points to statements from his sentencing hearing
he believes evidence a record as inadequate as that in
Anderson. But Gewin’s situation is quite different. Before
imposing the $500,000 fine, the district court noted that
Gewin claimed $651,541 in various accounts and stock worth
some $1.5 million. The court did acknowledge a dispute
12
between Gewin and a co-defendant over the stock, and, in part
because of this uncertainty, ultimately rejected the
government’s request for a larger fine. But the court also
reasoned Gewin might not have to pay the entire $1,975,786
in restitution, given that some injured investors wouldn’t ever
seek compensation, and that Gewin’s co-defendants were
jointly and severally liable for whatever amount was claimed.
Moreover, the record suggests that Gewin was less than
forthright with the court about the state of his finances. The
district court commented that Gewin had “stonewalled” the
court from obtaining updated and accurate financial
information. J.A. 1080-87. As we said in Anderson, “it
makes good sense to burden a defendant who has apparently
concealed assets” to prove that “he has no such assets and thus
cannot pay the fine.” 39 F.3d at 358. But Gewin claimed a
net worth of more than $2 million, will be in his mid-40s
when released, and is a college graduate and a licensed pilot.
Thus, the record as a whole amply supports the view that
Gewin was able or likely to become able to pay the fine
imposed.
* * *
Because we find no merit in Gewin’s claims, his
conviction and sentence are hereby
Affirmed.