“Appearance” Requires Readiness to Proceed: Seventh Circuit’s Nonprecedential Reaffirmation on Self-Representation, Speedy Trial Exclusions, and Sentencing Enhancements in United States v. Kevin Smith

Introduction

This nonprecedential order from the United States Court of Appeals for the Seventh Circuit affirms the conviction and 118-month sentence of Kevin Smith for a multi-property mortgage fraud scheme in the Chicago area. The panel—Chief Judge Brennan and Circuit Judges Sykes and St. Eve—decided the appeal without oral argument under Federal Rule of Appellate Procedure 34(a)(2)(C).

The case touches multiple recurring issues in federal criminal practice: the scope of the Sixth Amendment right to self-representation during a Faretta waiver; the meaning of a pretrial release condition requiring a defendant to “appear in court as required” under 18 U.S.C. § 3148; the architecture of the Speedy Trial Act’s exclusions, especially for physical-capacity evaluations, pretrial motions, and interlocutory appeals; and sentencing issues involving the aggravating role enhancement under U.S.S.G. § 3B1.1(b), obstruction of justice under § 3C1.1 for malingering, and the court’s obligation to explain its § 3553(a) analysis.

Although designated “Nonprecedential” and citable only per Fed. R. App. P. 32.1, the order offers practical guidance to trial courts and litigants, particularly on what it means to “appear” for court while on release and how defendant-driven pretrial activity affects the Speedy Trial clock.

Case Background

While working as a loan originator, Smith orchestrated a mortgage-fraud scheme targeting properties in the Chicago area. He recruited buyers—often ineligible for government-backed loans—through real estate seminars and falsified loan application information, including primary-residence representations and the sources of down payments and post-closing funds. Fourteen fraudulent applications were submitted; all properties were ultimately foreclosed or sold at a loss, producing a $2.3 million loss largely borne by FHA and VA guaranties.

In 2021, Smith was indicted on five counts of bank fraud (the opinion cites 18 U.S.C. § 1334; the federal bank fraud statute is codified at 18 U.S.C. § 1344, suggesting a typographical slip). More than three and a half years later, a jury convicted him on all counts. He received a 118-month prison sentence.

Summary of the Opinion

Self-representation: No Sixth Amendment violation occurred when the district judge briefly appointed counsel solely to advise on the mechanics of Smith’s waiver of counsel. Smith otherwise represented himself at all key phases, satisfying Faretta and McKaskle standards.
Revocation of pretrial release: Revocation under 18 U.S.C. § 3148(b) was proper. “Appearance” as a release condition encompasses readiness to proceed, not mere physical presence. Smith’s repeated failures to appear and last-minute refusal to participate amply supported revocation, and the government had moved to revoke weeks earlier.
Speedy Trial Act: No violation. Only 18 days accrued on the 70-day clock. The court correctly excluded time for physical-capacity proceedings, pretrial motions, and interlocutory appeals, with additional, properly supported ends-of-justice continuances.
Sentencing—role enhancement: The three-level enhancement under § 3B1.1(b) for acting as a manager/supervisor in a scheme with five or more participants was adequately supported by findings that Smith recruited at least twelve knowing accomplices and directed material aspects of the fraud.
Sentencing—obstruction: The two-level enhancement under § 3C1.1 was warranted because Smith feigned vision problems on the morning of trial and refused court-arranged ophthalmology evaluations, conduct akin to malingering recognized as obstructive.
Sentencing—explanation: The district court sufficiently addressed the § 3553(a) factors and did not create unwarranted disparities, supporting the within-Guidelines sentence.
Other claims: The panel reviewed Smith’s remaining arguments and found them meritless.

Analysis

Precedents Cited and Their Influence

Faretta v. California, 422 U.S. 806 (1975): Establishes the constitutional right to self-representation, contingent on a knowing and intelligent waiver of counsel. The panel situates Smith’s claim within Faretta’s core: the defendant’s autonomy interest in presenting his own defense.
McKaskle v. Wiggins, 465 U.S. 168 (1984): Clarifies that standby counsel or limited counsel involvement does not violate Faretta so long as the defendant maintains control over the presentation of his case. The panel underscores that Smith represented himself “in every other phase” central to Faretta, aligning with McKaskle’s boundaries.
United States v. Vizcarra-Millan, 15 F.4th 473 (7th Cir. 2021): Emphasizes the trial court’s duty to ensure a knowing and intelligent waiver of counsel. The brief appointment of counsel here was used to confirm procedural requirements for the waiver, consistent with Vizcarra-Millan’s admonitions about judicial vigilance.
Imani v. Pollard, 826 F.3d 939 (7th Cir. 2016): A cautionary case recognizing that undue constraints or forced counsel can abridge self-representation. The panel distinguishes Imani, noting Smith’s ability to self-represent throughout the substantive phases of litigation.
18 U.S.C. § 3148(b); United States v. Wilks, 15 F.4th 842 (7th Cir. 2021): Set the two-part standard for revoking pretrial release: a violation of a release condition and a determination that the defendant is unlikely to abide by conditions. The panel affirms both prongs, buttressed by Smith’s prior failures to appear and his strategic nonparticipation.
Issue preclusion and intra-case rulings: United States v. Eymann, 962 F.3d 273 (7th Cir. 2020) (collateral estoppel requires final judgment), and United States v. Sherman, 912 F.2d 907 (7th Cir. 1990) (preclusion doctrines do not bar reconsideration of rulings within the same action). These authorities dispose of the government’s collateral estoppel argument given Smith’s earlier appeals on release revocation within the same proceeding.
Speedy Trial Act, 18 U.S.C. § 3161: The panel relies on:
- § 3161(h)(1)(A): automatic exclusion for proceedings to determine physical capacity;
- § 3161(h)(1)(C): automatic exclusion for interlocutory appeals;
- § 3161(h)(1)(D): automatic exclusion for pretrial motions;
- § 3161(h)(7)(A), (B)(iv): ends-of-justice continuances for effective preparation and motion practice, when properly justified on the record;
- § 3161(h)(7)(C): clarifying that general docket congestion is not a valid basis for an ends-of-justice exclusion (hence one day accrued when trial moved for scheduling).
United States v. Patterson, 872 F.3d 426 (7th Cir. 2017), supports the conclusion that the clock remains tolled during competency/fitness determinations until the court resolves fitness—not merely upon submission of records.
Role enhancements: United States v. Causey, 748 F.3d 310 (7th Cir. 2014), and United States v. Robertson, 662 F.3d 871 (7th Cir. 2011), recognize that recruiting participants, supplying down payments through proxies, and directing misrepresentations can support a leadership or supervisory role finding under § 3B1.1. The panel leverages these cases to show that Smith’s coordinated recruitment and direction warrant an aggravating role enhancement, here at the three-level tier because the operation involved five or more participants or was otherwise extensive.
Obstruction for malingering: United States v. Bowling, 952 F.3d 861 (7th Cir. 2020), recognizes that feigning an impairment to delay proceedings can constitute obstruction under § 3C1.1. Smith’s last-minute vision claims and refusal to attend medical evaluations fit this pattern.
Standards of review and sentencing explanations: United States v. Pugh, 147 F.4th 801, 808 (7th Cir. 2025) (clearly erroneous standard for factual findings; the panel will not overturn unless left with a definite and firm conviction of error), and United States v. Stephens, 986 F.3d 1004, 1010–11 (7th Cir. 2021) (adequacy of sentencing explanation under § 3553(a)).

Legal Reasoning and Application

1) Self-Representation: Limited Counsel to Vet Faretta Waiver

Smith argued that appointing counsel—even briefly—burdened his right to self-representation. The panel rejected this, reasoning:

The judge had an affirmative duty to ensure a knowing and intelligent waiver of counsel (Faretta; Vizcarra-Millan). Seeking counsel’s input on whether an oath was necessary for the waiver was a permissible, narrow step to discharge that duty.
Smith controlled the core functions of his defense throughout. Under McKaskle, minimal or standby involvement that does not usurp control does not violate Faretta. The record showed no encroachment on the substance of Smith’s self-representation.

2) Pretrial Release Revocation: “Appearance” Encompasses Readiness to Proceed

On the morning trial was to begin, Smith announced vision issues rendering him unable to proceed and then refused to attend court-arranged ophthalmology appointments. The district court revoked his pretrial release under 18 U.S.C. § 3148(b).

The panel affirmed because:

Violation of condition: “Appear in court as required” includes meaningful participation and readiness to proceed; mere physical presence is insufficient when a defendant refuses to participate.
Unlikely to abide: Smith had already missed three hearings, and the government had moved to revoke weeks earlier. That history, coupled with the trial-day conduct, supported the second prong.
No sua sponte problem: The revocation occurred in response to the government’s pending motion, not on the court’s own initiative.
No collateral estoppel: Earlier unsuccessful appeals on the same issue within the same criminal case did not preclude reconsideration (Sherman; Eymann).

3) Speedy Trial Act: Only 18 Days Accrued

Smith claimed 435 non-excludable days; the panel found only 18. The court relied on multiple categories of excludable time:

Fitness proceedings: Time to determine physical capacity is automatically excluded until the court resolves fitness (18 U.S.C. § 3161(h)(1)(A); Patterson).
Pretrial motions: Automatically excluded while pending (id. § 3161(h)(1)(D)).
Interlocutory appeals: Automatically excluded during the pendency of appeal(s) (id. § 3161(h)(1)(C)). Smith pursued “many” interlocutory appeals; those periods do not count.
Ends-of-justice continuances: Properly supported on-the-record findings warranted further exclusions for discovery review, motion practice, and trial preparation (id. § 3161(h)(7)(A), (B)(iv)).
Accrued days identified: Time accrued in brief windows where findings were insufficient (March 11–16, 2021; May 6–18, 2021) and one day when the court moved the trial due to its calendar (Aug. 26–27, 2024)—the latter being non-excludable under § 3161(h)(7)(C).

Smith’s argument that discovery access difficulties should have prevented exclusions failed; the docket showed active, defense-driven motion practice and appeals that themselves tolled the clock.

4) Sentencing

a) Role Enhancement under U.S.S.G. § 3B1.1(b)

The district court imposed a three-level enhancement for Smith’s role as a manager or supervisor of criminal activity involving five or more participants or that was otherwise extensive. The panel affirmed:

Smith recruited at least twelve knowing participants (buyers and collaborators), encouraged falsehoods on applications, provided illegal down payments by proxy, and orchestrated undisclosed kickbacks—hallmarks of managerial coordination.
Causey and Robertson confirm that recruitment, direction, and control over key aspects of a fraud support an aggravating role enhancement; the number of participants here justified the three-level increase under § 3B1.1(b).
Because § 3B1.1 applied, Smith’s argument for the two-level “zero-point offender” reduction under § 4C1.1(a) failed—§ 4C1.1 disqualifies defendants who received an aggravating role enhancement.

b) Obstruction of Justice under U.S.S.G. § 3C1.1

The district court found that Smith fabricated vision problems on the morning of trial and refused evaluations designed to test his claimed impairment. The panel held these factual findings were not clearly erroneous (Pugh) and that such malingering can constitute obstruction (Bowling).

c) Sentencing Explanation under 18 U.S.C. § 3553(a)

The panel rejected the claim that the district court failed to explain its sentence or address unwarranted disparities. Citing Stephens, the panel concluded the district court discussed the necessary § 3553(a) considerations at length and imposed a within-Guidelines sentence.

Impact and Practical Implications

While nonprecedential, the order offers persuasive guidance for district judges and practitioners in the Seventh Circuit and beyond.

Self-Representation Boundaries: Trial courts may use narrowly tailored, temporary appointments of counsel to ensure the validity of a Faretta waiver without infringing the right to self-representation, provided the defendant retains control over core trial functions.
Meaning of “Appearance” on Release: The opinion clarifies that “appear in court as required” is a functional standard. Defendants who are present but refuse to proceed—or engineer last-minute obstacles—may be found in violation.
Speedy Trial Accounting: Defense-driven pretrial activity—motions, competency/fitness proceedings, and especially interlocutory appeals—can significantly toll the clock. The case reinforces the breadth of automatic exclusions and the continuing vitality of ends-of-justice continuances when supported on the record.
Mortgage-Fraud Sentencing: Recruiting multiple buyers, directing material misrepresentations, and orchestrating unlawful payment flows readily support managerial/supervisory findings under § 3B1.1(b). This has particular salience in property-based and loan-origination frauds involving multiple participants.
Malingering as Obstruction: Tactical claims of incapacity—especially at the cusp of trial—invite scrutiny and can generate § 3C1.1 exposure when the record supports a finding of feigning or refusal to be evaluated.
Zero-Point Offender Reduction: The § 4C1.1 reduction is unavailable where an aggravating role applies. Defense counsel should carefully assess disqualifiers before staking arguments on § 4C1.1.

Complex Concepts Simplified

Faretta right: You can choose to represent yourself, but only after the judge confirms you understand the risks and are making an informed choice.
Standby/limited counsel: A judge may appoint a lawyer to help with logistics (e.g., confirming waiver formalities). As long as you control the strategy and presentation, your self-representation right is not violated.
“Appear as required” on pretrial release: Showing up is not enough. You must be ready and willing to proceed as the court directs.
Speedy Trial Act clock (70 days): The clock pauses for certain events, including fitness/competency checks, pretrial motions, and interlocutory appeals. Judges can also stop the clock for “ends of justice” if they explain valid reasons (like giving parties time to prepare).
Aggravating role (§ 3B1.1): Sentences increase if you organize, lead, manage, or supervise a crime involving multiple participants. More participants and more control usually mean a larger increase.
Obstruction (§ 3C1.1): Lying, destroying evidence, or feigning an impairment to delay trial can increase your sentence.
Zero-point offender (§ 4C1.1): Some first-time offenders may get a two-level reduction—but not if they also get an aggravating role enhancement or meet other disqualifying criteria.
Standards of review on appeal: Legal issues are reviewed closely, but factual findings (like whether someone was faking) are overturned only if clearly wrong.

Conclusion

The Seventh Circuit’s order in United States v. Kevin Smith affirms a conviction and lengthy sentence arising from a broad mortgage-fraud scheme while providing clear, practice-oriented guidance. It reaffirms that a defendant’s self-representation right does not forbid a court from using narrowly tailored counsel involvement to ensure a valid waiver; that “appearance” on pretrial release requires readiness to proceed, not just bodily presence; and that the Speedy Trial Act’s exclusions are robust—especially where the defendant’s own motions, appeals, or fitness issues are in play.

On sentencing, the decision underscores that orchestrating a multi-participant fraud—recruiting, directing misrepresentations, arranging funding flows—supports a § 3B1.1(b) managerial role enhancement, and that malingering can justify an obstruction enhancement under § 3C1.1. The court also confirms the sufficiency of a thorough § 3553(a) explanation in supporting a within-Guidelines sentence. Even as a nonprecedential disposition, the order offers valuable, citable (under Rule 32.1) insight into the Seventh Circuit’s approach to these recurrent issues.