[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_____________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 14, 2002
No. 00-15623 THOMAS K. KAHN
_____________________________ CLERK
D. C. Docket No. 99-00256 CR-T-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES T. KIMBALL,
Defendant-Appellant.
__________________________________________
Appeal from the United States District Court
for the Middle District of Florida
__________________________________________
(May 14, 2002)
Before EDMONDSON, CARNES and SILER*, Circuit Judges.
PER CURIAM:
*
Honorable Eugene E. Siler, Jr., U.S. Circuit Judge for the Sixth Circuit, sitting by designation.
Appellant/Defendant James Kimball (“Defendant”) was convicted of
conspiracy to distribute in interstate commerce a prescription drug without a
prescription with the intent to defraud or mislead, in violation of 18 U.S.C. § 371;
of distributing in interstate commerce a prescription drug without a prescription
with the intent to defraud or mislead, in violation of 21 U.S.C. § 331(a); and of
making false statements, in violation of 18 U.S.C. § 1001. The district court
sentenced Defendant to 13 years’ imprisonment.
Defendant brings this appeal, challenging his conviction on the following
grounds: that he was denied his Sixth Amendment right to counsel when the
district court allowed him to represent himself; that the district court’s comments
and acts unfairly prejudiced Defendant before the jury, denying him the right to a
fair and impartial trial; and that the district court erred by not suppressing evidence
seized during a search of his home. Defendant also raises a number of challenges
to his sentence.1
We affirm the conviction and the sentence.
DISCUSSION
1
We see no merit in Defendant’s claims that the evidence seized in the search of his home should
have been excluded and that the district court’s conduct unfairly prejudiced him. We therefore
affirm the district court on these issues without further discussion.
2
I. Self-Representation
We see no reversible error in the district court’s grant of Defendant’s motion
to represent himself. In Faretta v. California, 95 S. Ct. 2525 (1975), the Supreme
Court determined that the Sixth Amendment affords criminal defendants the right
to defend themselves if they so desire. See id. at 2532-34. But the Court also
wrote that “in most criminal prosecutions defendants [can] better defend with
counsel’s guidance than by their own unskilled efforts.” Id. at 2540. Therefore,
before a defendant is allowed to waive the assistance of counsel, he “should be
made aware of the dangers and disadvantages of self-representation, so that the
record will establish that he knows what he is doing and his choice is made with
eyes open.” Id. at 2541 (internal citation and quotations omitted).
We have written that the “ideal method” of assuring that a defendant
understands the consequences of a waiver is for the trial court to conduct a pretrial
hearing. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995). At this
hearing -- commonly referred to as a “Faretta inquiry” -- the district court should
inform the defendant of the nature of the charges against him, possible
punishments, basic trial procedure and the hazards of representing himself. See id.
The purpose of this hearing is to allow judges to determine whether the defendant
3
understands the risks of self-representation. “The closer to trial an accused's
waiver of the right to counsel is, the more rigorous, searching and formal the
questioning of the trial judge should be.” Id. (quoting Strozier v. Newsome, 926
F.2d 1100, 1105 (11th Cir. 1991)).
In this case, the district court conducted a Faretta inquiry. During the
inquiry, the district court repeatedly told Defendant that it was a bad idea to defend
himself and warned defendant about the specific risks and difficulties in doing so.
At the conclusion of the inquiry, the district court determined that Defendant
understood the warnings; and the court determined that Defendant had “freely,
knowingly, voluntarily and intelligently waived his right to counsel.” Therefore,
the district court allowed Defendant to represent himself.
A district court’s conclusion that a defendant’s waiver is valid -- that it is
knowing, voluntary, and intelligent -- is a mixed question of law and fact that we
review de novo. See id. We have identified several factors that are especially
important to the determination of whether a defendant’s decision to proceed pro se
is valid. These are the factors: 1) the defendant’s age, health, and education; 2) the
defendant’s contact with lawyers prior to trial; 3) the defendant’s knowledge of the
nature of the charges and possible defenses and penalties; 4) the defendant’s
understanding of the rules of evidence, procedure and courtroom decorum; 5) the
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defendant’s experience in criminal trials; 6) whether standby counsel was
appointed and, if so, the extent to which standby counsel aided in the trial; 7) any
mistreatment or coercion of the defendant; and 8) whether the defendant was
attempting to manipulate the trial. See id. at 1088-89; Fitzpatrick v. Wainwright,
800 F.2d 1057, 1065-67 (11th Cir. 1986).
We have reviewed the record, and we conclude that most of the factors point
in favor of a ready finding that Defendant’s waiver was valid. That Defendant was
not coerced into defending himself is undisputed, and no indication exists that
Defendant was attempting to manipulate the trial process by asking to represent
himself.
Although Defendant does make arguments on the other factors, most of his
arguments are not powerful. Defendant is only sixty years old and is in good
mental and physical health. Although Defendant’s formal education ended in the
eleventh grade, he has been a fairly successful and sophisticated businessman. In
addition, Defendant was represented by a lawyer -- Elliot Dunn -- prior to trial.
According to Dunn’s statements at the Faretta inquiry, Dunn explained the risks of
acting pro se and advised Defendant against doing so. Furthermore, Dunn was
appointed by the district court as standby counsel. Moreover, Defendant did have
some courtroom experience: in the past, he had acted as his own lawyer in a felony
5
case. While it is true that the earlier trial took place over twenty years before this
case and was tried to a judge instead of to a jury, the experience should have
illustrated for Defendant the inherent difficulties of acting as one’s own lawyer.
Two of the factors merit further discussion. The first deals with Defendant’s
understanding of the applicability of the rules of evidence, procedure and
courtroom decorum. Defendant argues that this factor should weigh in his favor,
because the district court failed to conduct a detailed inquiry on the extent of
Defendant’s mastery of the rules.
This argument misunderstands the law. The purpose of a Faretta inquiry is
not to determine the extent of a defendant’s legal knowledge or to determine how
good of a trial advocate a defendant will be. See Faretta, 95 S. Ct. at 2541 (“[A]
defendant need not himself have the skill and experience of a lawyer in order
competently and intelligently to choose self-representation . . . . [A defendant’s]
technical legal knowledge, as such, [is] not relevant to an assessment of [a
defendant’s] knowing exercise of the right to defend himself.”). A defendant need
only “be made aware of the dangers and disadvantages of self-representation, so
that the record will establish that he knows what he is doing and his choice is made
with eyes open.” Id. (internal quotations omitted). Therefore, we do not have to
determine -- and the district court did not have to ask -- whether, for example,
6
Defendant could recite the steps to introduce a document into evidence or whether
Defendant could define “hearsay” and list the various exceptions to the hearsay
rule. See, e.g., id. (“We need make no assessment of how well or poorly [the
defendant] ha[d] mastered the intricacies of the hearsay rule.”). Instead, we need
only to determine whether Defendant understood that rules do exist to govern the
procedure of a trial, the introduction of evidence and the behavior of advocates and
to determine whether Defendant understood that he would be bound by those rules.
Our review of the record convinces us that Defendant did understand these things.
We are more troubled by whether Defendant understood the consequences
of a guilty verdict and what would happen if the trial went badly for him. The
district court’s discussion of Defendant’s possible sentence is a bit worrisome.
Defendant’s indictment listed eight counts. The district court went through each
count and told Defendant the maximum sentence under each count: Counts 1 and 8
carried a five-year maximum; counts 2 through 7 carried a three-year maximum.
And the district court informed Defendant that the court had the power to sentence
him to consecutive sentences. The district court also told Defendant, “the penalty
that you might suffer if you are found guilty, and I want to make it sound as bad as
I can, it’s five years, could be 28 years . . . .”
7
The district court, however, did not stop with a warning as to the maximum
or theoretical penalties Defendant faced. Here is the worrisome part. Instead, the
district court -- in Defendant’s presence -- discussed with the prosecutor
Defendant’s likely sentence under the federal sentencing guidelines. When asked
whether the government had calculated Defendant’s sentence under the guidelines
“to a certain extent,” the prosecutor responded: “To a certain extent. I’d say that
three years is very reasonable and middle of the road.” (emphasis added).
Defendant stresses that he gave this statement great weight, seeing it as the real risk
he was facing.
If the district court had simply told Defendant the maximum conceivable
sentence he faced, this case would be an easy one. Our cases do not require that a
district court, in a Faretta inquiry, estimate what a defendant’s actual punishment
under the sentencing guidelines will be. It seems a better practice for district
courts to abstain from doing so. The facts of this case illustrate the potential
problem.
The application of the sentencing guidelines and the determination of a
defendant’s actual sentence is a pretty complicated business. In many cases it will
be extremely difficult to determine, in advance of trial and a presentence
investigation, what a defendant’s ultimate sentence will be. More important, it
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serves no essential purpose. The purpose of a Faretta inquiry is to ensure that a
defendant understands the risks of defending himself; this purpose is satisfied
when a defendant is aware of the maximum penalty he faces. See, e.g., United
States v. Farhad, 190 F.3d 1097, 1098 (9th Cir. 1999) (finding that a waiver was
valid where “[t]he district judge warned [defendant] that he was charged with 19
counts [and] informed him of the maximum penalty on each count . . .”).
Although the district court should not have attempted to predict what
Defendant’s actual sentence would be once all the sentencing guidelines were
calculated, we conclude that the inaccurate prediction presented to Defendant does
not require us to reverse Defendant’s conviction. Based on our review of the
record, we are satisfied that Defendant understood that, if convicted, he could be
sentenced to a long prison term: certainly one at least as long as the thirteen years
the district court eventually imposed. The district court never promised Defendant
that his sentence would not exceed three years. On the contrary, the district court
specifically told Defendant that the prosecutor would not be held to his initial
sentencing prediction. And, more than once, the district court told Defendant that
he could be sentenced to consecutive terms and that his sentence could be as long
as 28 years’ imprisonment. Given all of the circumstances, we agree with the
9
district court that Defendant’s waiver in this case was knowing, voluntary, and
intelligent.
II. Sentencing Claims
Although Defendant raises many challenges to his sentence, only two have
sufficient merit to warrant discussion.2 First, Defendant claims that the district
court erred in sentencing him under U.S.S.G. § 2F1.1 (2000).3 One of the statutes
Defendant was convicted of violating is 21 U.S.C. § 333(a)(2); the sentencing
guidelines identify two different sections that apply to such violations: 2F1.1 and
2N2.1. According to the guidelines, “if the offense involve[s] fraud, apply §
2F1.1.” U.S.S.G. 2N2.1(b)(1).
Defendant argues that any fraud he might have committed was only fraud
against federal and state agencies and was only a regulatory offense and that,
2
Defendant raises the following sentencing issues on appeal: 1) that the district court erred in
sentencing him under Section 2F1.1 of the sentencing guidelines; 2) that the district court erred
when it departed upwards from the sentencing guidelines; 3) that the district court erred in finding
that his offense was committed through mass marketing and in enhancing his sentence under Section
2F1.1(b)(3); and 4) that the district court erred in enhancing his sentence under Section 2F1.1(b)(5)
for relocating his scheme to another jurisdiction, for committing a substantial part of the scheme
from outside the United States, or for using sophisticated means.
3
Our citation to section 2F1.1 represents the guidelines applicable when Defendant committed
his offenses and when his sentence was imposed. Section 2F1.1 has since been deleted and
consolidated with section 2B1.1.
10
therefore, his crime did not involve “fraud,” as contemplated by the guidelines.
This argument lacks merit.
Defendant was convicted of “distributing a Prescription Drug without a
prescription with the Intent to Defraud or Mislead;” therefore, an essential element
of his conviction is that the offense involved fraud. In the past, we have concluded
that convictions under 21 U.S.C. § 333's provisions dealing with “intent to defraud
or mislead” can be sustained where the fraud was committed against government
agencies. See United States v. Bradshaw, 840 F.2d 871, 874-75 (11th Cir. 1988).
Defendant offers no good reason, and we can think of none, why our conclusion
should be different for sentencing purposes. All other circuits that have considered
this issue have come to the same conclusion: it is proper to apply Section 2F1.1 to
defendants who commit fraud against a government agency. See United States v.
Andersen, 45 F.3d 217, 219 (7th Cir. 1995) (rejecting argument that “fraud on a
regulatory agency does not support the use of § 2F1.1”); United States v. Arlen;
947 F.2d 139, 146 (5th Cir. 1991); United States v. Cambra; 933 F.2d 752, 754
(9th Cir. 1991).
Defendant also challenges the district court’s upward departure from the
determined offense level and the method by which the amount of the upward
departure was calculated. Federal law states that a district court should not
11
increase a defendant’s sentence above the applicable range “unless the court finds
that there exists an aggravating . . . circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission.” 18 U.S.C. §
3553(b). “[T]o depart from the guidelines, the sentencing court must determine (1)
whether any factor makes the case atypical, meaning that it takes the case out of
the ‘heartland’ of cases involving the conduct described in the applicable guideline,
and (2) whether that factor should result in a different sentence.” United States v.
Regueiro, 240 F.3d 1321, 1324 (11th Cir. 2001). A district court’s decision to
depart from the sentencing guidelines is reviewed for abuse of discretion. See
Koon v. United States, 116 S. Ct. 2035, 2046 (1996); United States v. Melvin, 187
F.3d 1316, 1320 (11th Cir. 1999) (“Because the district courts see so many
Guidelines cases, district courts have an institutional advantage over appellate
courts in determining whether a case is outside the heartland, and thus their
decisions are entitled to substantial deference.”).
In this case, the district court identified several factors that took Defendant’s
acts outside of the “heartland” of typical fraud cases; among the factors was the
harm posed to the public by Defendant’s scheme to defraud the government. Such
a risk of nonmonetary harm is specifically identified by the Sentencing Guidelines
as an appropriate grounds for departure. “In cases in which the loss determined
12
under subsection [2F1.1(b)(1)] does not fully capture the harmfulness and
seriousness of the conduct, an upward departure may be warranted. Examples may
include the following: (a) a primary objective of the fraud was nonmonetary; or the
fraud caused or risked reasonably foreseeable, substantial nonmonetary harm.”
U.S.S.G. § 2F1.1, Application Note 11(a). Where the Guidelines encourage a
particular factor as grounds for departure, a departure is appropriate if the
applicable guideline does not already take that factor into account. See United
States v. Hoffer, 129 F.3d 1196, 1200 (11th Cir. 1997).
We agree with the district court’s conclusion that the loss caused by
Defendant’s fraud had not been adequately taken into account by the Guidelines.
During sentencing, the district court concluded that an enhancement based on the
monetary loss caused by the Defendant’s conduct was improper.4 That conclusion,
however, does not mean that Defendant’s fraud did not cause harm or create loss:
as the district court noted, fraud against government regulatory agencies does pose
a threat of harm to the public. We conclude, therefore, that the district court did
4
The government had argued before the district court that Defendant’s offense level should be
increased by the amount of loss his fraud caused, under Section 2F1.1(b)(1). The district court,
however, rejected the government’s argument, concluding that the “victims” of Defendant’s fraud
were federal and state regulatory agencies, and that the harm to those agencies was either extremely
difficult or impossible to calculate in concrete terms. The district court further concluded that it was
inappropriate to substitute Defendant’s gain as a proxy for loss, because no connection existed
between Defendant’s gain and the agencies’ loss. We express no opinion on the correctness of that
conclusion.
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not abuse its discretion in determining that Defendant’s acts in this case were
outside the heartland of typical fraud cases and in departing upward from the
applicable sentencing range. 5
Nor did the district court abuse its discretion in calculating the amount by
which to depart from the guideline range. In making this decision, the district
court did rely upon the government’s calculation of Defendant’s gain from his
fraud and increased Defendant’s sentence using the fraud table from Section
2F1.1(b)(1). The amount by which a district court departs from the Guidelines
need only be reasonable. See Melvin, 187 F.3d at 1322. In Andersen, the Seventh
Circuit wrote, in dicta, that “in calculating the extent of any departure, the net
profits earned by the defendants, together with all other relevant information,
would not be inappropriate matters for consideration.” Andersen, 45 F.3d at 222.
We agree with this statement, and therefore accept that the sentence imposed by
the district court was reasonable and within the district court’s discretion.
AFFIRMED.
5
We note that this approach has been endorsed, in dicta, by the Seventh Circuit. See Andersen,
45 F.3d at 222. In Andersen, the court reversed an increase in offense level under Section
2F1.1(b)(1) on the basis of financial loss, because the harm caused by defendant’s acts was non-
monetary. But the court also wrote that, upon remand, “upward departure may certainly be
warranted by the non-monetizable risk to human and animal health caused by the defendants' failure
to follow” applicable regulations and procedures. Id.
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