Before Judges STERN, GRAVES and J.N. HARRIS.
STERN, P.J.A.D.
This is an appeal from a final administrative determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) denying petitioner Michael B. Francois service credit in PERS as an employee of the New Jersey Economic Development Authority (EDA) for the period from May 2003 to December 2005. During that period Francois served on "mobility assignment" as Director of the Real Estate Department of the Port Authority of New York and New Jersey (Port Authority). The Board adopted the initial decision of an Administrative Law Judge (ALJ), and denied the petition. We reverse the final administrative determination, and remand for further proceedings.
PERS initially denied the service credits which gave rise to the contested case.
Petitioner was loaned by the petitioner's employer to another government agency for reasons that presumably benefited the State of New Jersey; the agency informed the employee that his pension would not be impaired during the period of assignment, and the employer continued to pay his salary during that period. Petitioner cannot be penalized by being denied credit for the salary which he would have earned at the EDA if he had not accepted the mobility assignment. However, the differential in salary based on the higher amount petitioner earned at the Port Authority should not be creditable.
I.
Petitioner was born on March 20, 1950. He worked for the City of Plainfield, New Jersey, from February 26, 1975 to May 30, 1981, but apparently did not enter into PERS during that period. Petitioner became an employee of the EDA on June 8, 1981, and was then enrolled in PERS. During his tenure at the EDA, petitioner served as Assistant Director, then Director, and finally Managing Director of Real Estate.
In April 2003, Anthony R. Coscia, who had been chairman of the EDA since February 1992, was appointed chair of the Port Authority. Shortly after this appointment, Chairman Coscia told petitioner that the position of Director of Real Estate at the Port Authority was available, and because of petitioner's interest, suggested that petitioner "send him a bio or resume."
Petitioner was interviewed for the position by the Port Authority's Executive Director, Joseph J. Seymour, and other senior Port Authority staff. Petitioner testified that subsequently Chairman Coscia told petitioner that the Port Authority staff "felt the most appropriate way" for petitioner to "become involved or go to the Port Authority, would be a [m]obility [assignment," and that such a mobility assignment would provide him with "the most flexibility." Petitioner testified that Chairman Coscia said that such an assignment "would probably be the best way to approach" the issue given the "potential changing function and responsibilities of the Real Estate Director at the Port Authority."
Petitioner testified that he was not "thinking about retiring" at the time. However, a few months previously he requested a quote from PERS for the amount it would cost to buy back his years of service at the City of Plainfield which he had not yet purchased. On January 10, 2003 petitioner was informed by the Purchase Section of PERS that the lump sum cost for purchasing his outstanding non-purchased months of service would be $44,802.75, or alternatively he could buy back the time with 120 monthly payments of $553.52 for a total of $66,422.40. On March 19, 2003 petitioner, who had previously bought back twelve months of credit, bought back the balance of his possible credit for his service for the City of Plainfield, which totaled sixty-three months.
The Port Authority, which had experience with mobility agreements, provided a draft agreement to Caren S. Franzini, Executive Director of the EDA. This draft agreement, which apparently was intended to be used by a New York State employee entering a mobility assignment at the Port Authority, contained a paragraph which provided that
[i]t is the Port Authority's intention that, subject to the provisions of New York's Retirement and Social Security Law, you may continue to accrue service credit with the New York State and Local Employees Retirement System (the System) for retirement purposes during the term of the assignment . . . [T]he Port Authority will take such action as may be necessary so that your benefits shall be equivalent to those to which you would have been entitled had you not accepted this assignment. In any event, the period of this assignment will be credited as Port Authority service.
On May 13, 2003 EDA Executive Director Franzini sent a Memorandum of Understanding (MOU) to petitioner which set forth the terms of the agreement which the EDA was shortly to enter into with the Port Authority regarding petitioner's mobility assignment. Franzini wrote that the mobility assignment was "designed to further mutually beneficial outreach programs which promote stable and productive relations with other regional entities and enhance mutual business objectives while providing you with an opportunity to further your development and career goals." The memo further stated that during the term of the mobility assignment
you will remain an EDA employee; except as outlined herein, you will continue to be subject to the rules and regulations governing all EDA employees, including the Code of Ethics and Financial Disclosure and the policies and procedures then in effect which apply to permanent professional and managerial EDA employees. Furthermore, your service with the Port Authority is to be subject to the applicable ethical standards of the Port Authority. During the term of this assignment and thereafter, you shall not provide to either the EDA or the Port Authority any confidential information relating to the other. During the term of this assignment, you may deal with substantive matters affecting the EDA or the Port Authority dealings with the EDA or otherwise affecting the EDA.
You are to report for work to offices assigned to you by the Port Authority and your work, performance, and attendance will be subject to supervision by the Port Authority. You will continue to report to the EDA at least one day a week, unless otherwise agreed to by the EDA director.
According to the MOU, petitioner's salary was to be $155,000, to be "funded by the Port Authority," but was to be "paid" to petitioner by the EDA. The term of the "assignment" was to be a maximum of a year, and "upon completion of this assignment" and "return to" petitioner's "EDA assignment," petitioner's salary was to decrease to $124,800, "as adjusted to reflect any merit increases" he "would have received during the term."
The MOU also contained provisions regarding "benefits coverage," "vehicle assignment," "time off and "travel and incidental expenses." As to "service credit," the MOU specifically stated petitioner's pension status:
It is the EDA's intention that, subject to the provisions of New Jersey Law, you may continue to accrue service credit with the New Jersey State Pension System (the "System") for retirement purposes during the term of this assignment. Should need arise at retirement or otherwise, a calculation will be made to determine whether or not your pension rights as of the date thereof have been reduced as a result of this assignment, based on a formal determination obtained from the System. If so, the EDA will take such action as may be necessary so that your benefits shall be the equivalent to those to which you would have been entitled had you not accepted this assignment
In any event, the period of this assignment will be credited as EDA service.
[(Emphasis added).]
On May 14, 2003 Port Authority Executive Director Seymour sent a letter to Franzini "confirm[ing] discussions in reference" to the "temporary assignment" of petitioner to serve as Director of the Port Authority Real Estate Department. Petitioner's mobility assignment was to begin on May 25, 2003 and was to last up to one year, though the assignment could be terminated "at any time on 15 days' notice" by the Port Authority, the EDA, or by petitioner. The Seymour letter further stated that it had been agreed that "the Port Authority will reimburse the EDA for the cost of salary and benefits . . . during this period, payable on invoices to be submitted by the EDA." The Port Authority agreed not to request that petitioner act "contrary to applicable provisions of the Port Authority's Code of Ethics and Financial Disclosure" and also agreed that petitioner's service would additionally be governed by the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 to 52:13D-28. Petitioner was also "expected to keep the EDA Executive Director advised of his activities and his progress during the course of his assignment, no less than every thirty days." Port Authority Executive Director Seymour explained that
The Port Authority and the EDA consider this assignment an opportunity for Mr. Francois to assist both agencies. In addition, the assignment will strengthen the relationship between Port Authority and EDA; develop professional and personal contacts which will serve both agencies well in the future; improve understanding and communications between the Port Authority and EDA; and enhance the goals of strengthening the region's economy.
The EDA had entered into a mobility assignment in the past with a private sector entity. In another instance the EDA and the New Jersey Department of Treasury entered into an agreement to share an employee. However, the mobility agreement between the EDA and the Port Authority regarding petitioner was the first which the EDA entered with a non-State of New Jersey agency.
During petitioner's time on the mobility assignment as the Director of Real Estate for the Port Authority he was responsible for managing and coordinating assorted real estate and leasing activities. Petitioner "engaged in very difficult negotiations" regarding the redevelopment of the World Trade Center. He also worked on the "Portfields Initiative," that redeveloped Brownfield sites within urban centers, in addition to other projects that directly benefited New Jersey.
Petitioner received his paycheck from the EDA during the mobility assignment. Throughout 2003 and early 2004 petitioner reported he was "working out of two offices," the EDA's office in Trenton "one or two days a week" and the remainder of the time at the Port Authority's office in Manhattan. Petitioner testified that by early 2004 it "became just to[o] overwhelming for me to be reporting at two locations," after which petitioner only reported to the Port Authority office.
On February 23, 2004 petitioner, the EDA, and the Port Authority entered into a new MOU regarding petitioner's mobility assignment, which superseded the May 13, 2003 MOU and extended the mobility assignment to May 31, 2006.
The February 2004 MOU was written in the form of a memorandum to petitioner as "Managing Director, Real Estate" from Greg Ritz, Chief Financial Officer and Controller of the EDA, and was executed by the controller, Seymour and petitioner. It was an extension of the previous agreement, except that it provided that petitioner would only report to the Port Authority office, and that petitioner's "work, performance, and attendance" would be supervised by the Port Authority. Like the previous MOU, the February 2004 MOU provided that during the mobility assignment the petitioner would remain an employee of the EDA, but that the petitioner would abide with the "rules and regulations governing all EDA employees" and the "applicable ethical standards of the Port Authority." Significantly, the February 2004 MOU stated that:
It is the EDA's intention that, subject to the provisions of New Jersey Law, you may continue to accrue service credit with the New Jersey State Pension System . . . for retirement purposes during the term of this assignment. The period of this assignment will be credited as EDA service.
It is clear that, irrespective of other benefits petitioner may have been receiving by the assignment at the Port Authority, at age fifty-three and after approximately twenty-seven years of creditable service (including the "buy back" purchases) he did not want to jeopardize or sacrifice his pension benefits.
In January 2003, before petitioner began the mobility assignment, his salary at the EDA was $124,800. In May 2003, at the start of the mobility assignment, petitioner's salary was raised to $155,000. On February 20, 2004 petitioner's salary was raised to $159,666 effective February 2004. On April 1, 2004 his salary was raised to $168,610 effective immediately, and to $170,014 effective July 2004. Finally, petitioner's salary was raised to $175,100 effective January 1, 2005.
Petitioner turned fifty-five on March 20, 2005. On November 30, 2005, Kenneth J. Ringler, Jr., who had assumed the post of Executive Director of the Port Authority, offered petitioner the position of Chief of Real Estate and Development. The offer letter stated that petitioner's "duties and responsibilities for the Port Authority" would not be affected. On December 5, 2005, petitioner informed the EDA that he intended to "resign" and "retire" from that agency effective January 1, 2006, that his "last day as a NJEDA employee" would be Friday, December 9, 2005, and that he was going to join the Port Authority. Having reached age fifty-five, petitioner was then entitled to retire based on his age and twenty-five years of service. He was eligible for an "early retirement" without penalty for retiring before age fifty-five. See N.J.S.A. 43:15A-41(b).
Petitioner filed his application for early retirement with PERS on December 22, 2005 with an effective date of January 1, 2006. The EDA certified that petitioner's final salary was $175,112. Based on this information, the Department of Treasury, Division of Pensions and Benefits (Division of Pensions), produced an "estimate of retirement benefits" based on thirty years, ten months of service and a final average salary of $162,283.
Subsequently, the Division of Pensions conducted an automatic review of petitioner's retirement application as petitioner had received salary increases of over ten percent during his last five years of service. On February 3, 2006 the Division of Pensions informed the EDA that the Division did not consider the salary petitioner earned on mobility assignment to be creditable compensation, because it was compensation "for extra work, duty or service beyond the . . . normal duty assignment." N.J.A.C. 17:2-4.1(a)(2). The Division of Pensions noted that petitioner's salary had "increased over 40 percent from May 2003 to January 2005" and that petitioner had surpassed the range of his salary grade.
On March 20, 2006, petitioner requested that the PERS Board review the determination that the salary he had earned on mobility assignment would not be creditable. During its meeting on July 19, 2006, the Board considered petitioner's appeal, and requested more information before reaching a decision. At its September 26, 2006 meeting, the Board again reviewed petitioner's case, noted that petitioner was currently employed with the Port Authority, and "found that regardless of the letter agreements setting forth the terms and conditions of Mr. Francois' employment between the EDA and the Port Authority, Mr. Francois was not in PERS-covered service during his employment with the Port Authority." The Board therefore concluded that petitioner's "service and salary with the Port Authority from May 1, 2003 through his retirement date [January 1, 2006]" was not "creditable," and that the retirement allowance would be adjusted for that period, including an "offset for the return of pension contributions."
Petitioner's subsequent appeal of the Board determination was treated as a "contested case." At the plenary hearing before an ALJ, petitioner stated that he was actually eligible for early retirement in March 2003 before taking the mobility assignment. He explained that though he began working for the EDA in 1981, he purchased sufficient credit for the earlier years in which he worked for the City of Plainfield in order to have twenty-five years of credit in PERS and thus qualify for early retirement in March 2003. However, if petitioner had taken early retirement at that time, instead of accepting the mobility assignment, his retirement benefits would have been reduced one-quarter of one percent for each month on which petitioner was under the age of fifty-five. Since petitioner was born in March 1950, if he had retired in March 2003 his retirement benefits would have been reduced by six percent. N.J.S.A. 43:15A-41(b)(a).
Petitioner did not ask the Division of Pensions how the mobility assignment would affect his pension benefits before he began the mobility assignment. Petitioner testified that no one suggested that he should consult with the Division of Pensions. Nor did he think it was necessary for him to consult with the Division because he was "under the impression that . . . all the benefits were going to be in place, they were to going to remain and the pension was part of that." The MOU so stated, and he was receiving his pay and benefits from the EDA. Petitioner also testified that he had no discussion with EDA Executive Director Franzini about his pension status. However, petitioner "wanted to make sure that all [his] benefits," including pension and health benefits, "remain[ed]" in place, and Ritz assured him that "my benefit package from the EDA was intact when I was on [m]obility [assignment."
Franzini testified that she had no "conversations with pension or human resources people" regarding potential salary issues concerning the mobility assignment. Petitioner also emphasized that the "EDA had discussions with the Port Authority, and felt this arrangement would be mutually beneficial to all parties," and they came to him with the MOU. In other words, he did not engineer the assignments or benefits.
Louis J. LaCapra, Chief Administrative Officer of the Port Authority, who was responsible for Human Resources, testified that accepting petitioner on a mobility assignment was attractive to the Port Authority because it had been difficult to fill the open Director of Real Estate position at the very time they were "negotiating for the rebuilding of the World Trade Center." LaCapra stressed that petitioner "was not a Port Authority employee" during the mobility assignment and did not pay into the New York pension system.
On July 22, 2008 the ALJ rendered his initial decision. He found that
The Port Authority was indirectly paying petitioner and he worked day-to-day in its organizational structure. He held himself out as that [a]gency's Chief of Real Estate Development and ethical limitations prevented him from working on EDA matters during the operative period[]. Thus, he was in all respects doing the business of the Port Authority and the agreements created to express a different intent cannot overcome these facts. . . . Moreover, [the Director of the Division of Pensions, Frederick Beaver, and the Chief of that Division's Health Benefits Bureau, David J. Pointer, who both testified], both experienced in pension matters, were unfamiliar with the mobility assignment concept and Ms. Franzini did not submit the relevant documents for legal review. The novelty of the arrangement ought in prudence to have impelled an inquiry to the Division [of Pensions] and in failing to do so petitioner assumed the risk that skeptical regulators would disallow it.
The ALJ further stated that "it is possible as petitioner suggests that the mobility assignment was an innocent mechan[ism] sought by the Port Authority to evaluate him for [a] permanent appointment." The ALJ noted that "[petitioner's request for a retirement quote in early 2003 reflects that retirement was on his mind . . . the mobility assignment well suited petitioner's circumstances."
The Attorney General, on behalf of PERS, "intimat[ed]" that the mobility assignment "was a contrivance to avoid a penalty for retiring before age fifty-five, and then to boost his final salary when he did retire."
In conclusion, the ALJ ordered "that service credit be denied between May 2003 and December 2005 and that petitioner's pension be adjusted accordingly."
Petitioner filed exceptions to this decision, and the PERS Board issued its final administrative decision on August 21, 2008, as corrected on October 6, 2008. As noted above, the Board adopted the ALJ's findings of fact and conclusions of law, which were consistent with the PERS Board's original determination that petitioner should be denied "service credit" for the period between May 2003 to December 2005.
II.
"[J]udicial review of an administrative agency action is limited" because respect is due to the "`expertise and superior knowledge'" of an agency in its specialized field. Hemsey v. Bd. of Trs., Police Firemen's Ret. Sys., 198 N.J. 215, 223, 966 A.2d 1020 (2009) (quoting In re License Issued to Zahl, 186 N.J. 341, 353, When you ask a liar a question, what kind of an answer do you think you're going to get? And we all know Mr. Brown's a liar. He's been convicted of it. We all know he lied to his probation officer. We all know now he went to jail for it. . . .
From what you've seen here, he can't make accurate statement on anything. Not even his own community service.
Now, Mr. Brown has indicated over and over again that he didn't have the intent to defraud anybody in this case
. . . .
[but he] intentionally tried to mislead you.
. . . .
[T]he evidence in this case clearly shows that [Brown] is a con man. He is a liar. He is a convicted liar. He's lied to you on numerous occasions. He committed the acts in this case and the only verdict . . . that's just in this case is guilty.
Id. at 3192-93, 3197, 3201. The district court instructed the jury on good faith reliance on an accountant. R19 at 3059; R20 at 3223-24.
The jury returned a verdict of guilty on all 18 counts. R2-187; R20 at 3235-38. The district court then asked Brown whether he wished to proceed with sentencing pro se or represented by Smargon. R20 at 3239. Brown responded that he wanted Smargon to represent him. Id. at 3239-40. After Smargon observed that Brown "[o]bviously, . . . was dissatisfied" with his representation, the district court commented that Brown had "never expressed dissatisfaction with [Smargon's] representation . . . [b]ut . . . chose to step forward for reasons he stated" and that Smargon would be re-appointed as counsel. Id. at 3240-41 The probation officer recommended a guideline range of 292-365 months of imprisonment, an offense level of 38, and a criminal history category of III; Brown, through attorney Arthur Wallace ("Wallace"), objected in writing and at sentencing. R2-223: R21 at 2, 6-10, 16-29, 42-47, 50-53, 54-60, 62, 65, 67-79, 81. At sentencing, the district court stated that it had reviewed the presentence investigation report ("PSI"), the PSI addenda, Brown's objections, the government's response to Brown's objections, an affidavit, and some letters, including one from a juror recommending that Brown "receive a lengthy sentence." Id. at 2-3. The district court also commented that the juror's letter and recommendation was not isolated and that
Following the trial, Smargon requested a hearing regarding counsel's status and Brown moved pro se to remove Smargon and for the appointment of substitute counsel. R2-190, 192. The district court granted the motions and appointed substitute counsel for Brown. Id. at 194. Due to a conflict of interest with the first substitute counsel, attorney Arthur Wallace was later appointed to represent Brown. Id. at 195, 198, 199. In the mean-time, Brown moved pro se for a new trial, filed a notice of governmental misconduct, and requested dismissal of the proceedings. Id. at 193, 202. The district court denied the motion for new trial without prejudice. Id. at 213. Brown's substitute appointed counsel filed a renewed motion for new trial and a motion for mistrial which the district court denied. Id. at 230, 231; R21 at 5.
the entire jury expressed their view . . . after the trial that they . . . thought . . . Brown deserved a harsh sentence and — they were not impressed with his presentation at trial. Particularly the fact that . . . he was very good at fraud, and that . . . some aspects of this fraud were beneath him. That if he was doing it, it would be a lot better fraud was essentially the argument he presented to the jury.
. . . .
I advised him against doing it. He chose to do it. He actually did the presentation pretty well, but the point was what he was saying was not helpful to his case. And he chose not to listen to his lawyer.
Id. at 5-6. The district court overruled eight of Brown's objections, but granted the objections as to the reduction of the criminal history points.
Id. at 41, 49-50, 54, 59-60, 65-66, 73, 81. The court found that the crimes were serious, there was a need to protect the public from Brown's behavior, he committed the crimes while on supervised release for another similar federal offense, Brown showed no remorse, did show arrogance, and victimized his family and friends.
Id. at 93. Brown was subsequently sentenced to imprisonment terms of 240 months on Counts 1-2, 12 months on Counts 13-17, and 60 months on Count 18 to run concurrently; supervised release for three years on Counts 1-12 and 18, and one year on Counts 13-17 to run concurrently; assessed $1,325.00; and ordered to pay $2,079,867.83 in restitution.
R2 at 235; R21 at 93-95.
Brown was remanded into custody and is currently incarcerated. R2-235 at 2.
Brown filed a notice of appeal and a corrected notice of appeal. R2-236, 237. Because the corrected notice of appeal was late, we remanded for the limited purpose of a determination of excusable neglect or good cause. R2-259 at 2. Brown's motion for extension of time to appeal was granted. R2-261, 262. On appeal, Wallace was permitted to withdraw; Brown is currently represented by retained counsel Michael Metz.
II. DISCUSSION
A. Brawn's Self-representation
Brown argues that the district court should not have permitted him to represent himself because doing so after the government had rested its complex case was untimely. He also maintains that the district court failed to conduct an adequate Faretta inquiry; that, due to his attorney's medical issues, the waiver of counsel was not intelligently, knowingly, and voluntarily made; and that it was clear that Brown's proposed defense would not succeed, He contends that the district court failed to inquire about his concerns regarding Smargon's medical problems and how it affected his performance and advice regarding self-representation.
We review the mixed question of law and fact of whether a defendant voluntarily and knowingly waived his Sixth Amendment right to counsel de novo; the government bears burden of proving the validity of the waiver. United States v. Garey, 540 F.3d 1253, 1268 (11th Cir. 2008) (en banc). The importance of the defendant's intelligent, knowing, and voluntary waiver removes the review from a harmless error analysis. See United States v. Fant, 890 F.2d 408, 410 (11th Cir. 1989) (per curiam).
The right of a criminal defendant "to be represented by counsel is among the most fundamental of rights" because "lawyers in criminal courts are necessities, not luxuries." Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 352, 102 L.Ed.2d 300 (1988) (quotation marks and citation omitted). A criminal defendant does not, however, have a right to a specific lawyer or the right to demand a different lawyer absent good cause. Garey, 540 F.3d at 1263. Good cause for the appointment of substitute counsel requires the showing of a fundamental problem which could lead to an apparently unjust verdict. Id. Such a fundamental problem could be shown by a complete breakdown in communication between the defendant and his attorney, a conflict of interest, or an irreconcilable conflict. Id. Absent such a showing, a defendant who lacks the means to hire a private attorney must either accept the appointed attorney or represent himself. Id. at 1263-64.
It is through criminal counsel that a defendant's rights are protected and it "affects his ability to assert any other rights he may have." Penson, 488 U.S. at 84, 109 S.Ct. at 352 (quotation marks and citation omitted). Because of the importance of counsel, a defendant cannot waive his right to counsel and assert his right to represent himself without "knowingly and intelligently for[egoing] those relinquished benefits." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quotation marks and citation omitted). "[I]n the context of [such a] waiver, `knowing' is synonymous with `intelligent' and Voluntary' is synonymous with `competent' and `intentional'" Jones v. Walker, 540 F.3d 1277, 1287 n. 4 (11th Cir. 2008) ( en banc). The defendant must be informed "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." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quotation marks and citation omitted). The trial court must conduct a searching, and not just summary, inquiry to establish the defendant's understanding. Fant, 890 F.2d at 409. Further, although the "ideal" setting for the inquiry is during a pretrial hearing, it is not required, United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995), and, in rare cases, a defendant's actions or statements in the record may provide sufficient evidence to establish a knowing and intelligent waiver of counsel and election to proceed pro se, Fant, 890 F.2d at 409. See also Garey, 540 F.3d at 1268-69 (observing that a defendant's voluntary waiver and knowledge may be demonstrated by an affirmatively invocation or the defendant's conduct in rejecting all other available options and responses to the district court's warnings and questions).
"The closer to trial an accused waiver of the right to counsel is, the more rigorous, searching and formal the questioning of the trial judge should be." Cash, 47 F.3d at 1088 (quotation marks and citation omitted). The ultimate test is not, however, based on the district court's advice or questioning, but is based on the defendant's understanding of the risks of self-representation and free choice to face those risks. Strozier v. Newsome, 926 F.2d 1100, 1105 (11th Cir. 1991). The information that the defendant must possess to make an intelligent waiver will be case-specific facts and circumstances. Iowa v. Tovar, 541 U.S. 77, 88, 92, 124 S.Ct. 1379, 1387, 1389, 158 L.Ed.2d 209 (2004).
Once "meaningful trial proceedings have commenced," "the defendant forfeits the unqualified right to proceed pro se" and a district court may deny such a request as untimely. United States v. Young, 287 F.3d 1352, 1354 (11th Cir. 2002) (quotation marks and citation omitted). Further, the right to self-representation is not absolute and may be denied if the defendant is incapable of maintaining the dignity of the courtroom, complying with the relevant rules, procedures, and laws, or engaging in obstructive or serious misconduct, and stand-by counsel may be appointed to assist a defendant, even over the defendant's objection. See Indiana v. Edwards, 554 U.S. 164, 171-72, 128 S.Ct. 2379, 2384, 171 L.Ed.2d 345 (2008) (citations omitted).
The inquiry must include questions directed to the defendant that ensure his intelligent, knowing, and voluntary waiver of his right. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. It may include questions regarding his age; educational background; physical and mental health; his legal experience, including that in any criminal trials; his contact with lawyers prior to the trial; his knowledge of the nature of the charges, and possible defenses and penalties; his understanding of the rules of courtroom decorum, evidence, and procedure; whether the waiver resulted from coercion or mistreatment; and whether the defendant was trying to manipulate the events of the trial. Id.; Fitzpatrick v. Waiwwright, 800 F.2d 1057, 1065-67 (11th Cir. 1986). Although a district court's warning of the dangers of self-representation and recommendation against it is not enough, it is not necessary that all of the factors for determining whether the defendant knowingly and intelligently waived his right point toward waiver. Id. at 1065; Strozier, 926 F.2d at 1105.
If a defendant wishes to proceed without counsel, it is recommended that a district court ask a defendant fifteen questions which include not only the areas mentioned above, but also whether he has studied law, previously represented himself in a criminal matter, has an understanding of the application of the Sentencing Guidelines, and is voluntarily waiving counsel. Fed. Jud. Ctr., Benchbook for U.S. District Judges § 1.02 (4th. ed.) (2000).
Brown's initial interest in representing himself and in waiving his right to counsel was not expressed to the district court pretrial or even before the jury was empaneled but only on the fourth day of trial, during the government's case. R9 at 847. When it initially surfaced, it was based on Brown's desire to assist his attorney in the questioning of the government's witnesses and his belief that he had a better grasp on the documentary evidence than Smargon. R9 at 846-47. At that time, Brown made it clear that it was not an impulsive decision but that he had thought about it for some time and had discussed it with Smargon. Id. at 846. When the issue of Brown's self-representation next arose, it was based again on his disagreement with his attorney's defense strategy and his belief that he could "impeach every one of these witnesses" because he knew the witnesses and the documents, and which signatures were forged. R11 at 1317-18, 1320. Other than Brown's comment that Smargon had been unable to review all of the documents because of his back surgery and other commitments, Brown expressed no concern, about Smargon's health or his compulsion to take over his defense because of Smargon's health or its impact on Smargon's representation of him.
The district court did not pressure Brown for a quick and irrevocable decision, but read much of the warning language of Faretta to Brown, advised Brown of the perils of self-representation on two separate days, and questioned him regarding his education and mental health. Brown responded that he was a high school graduate and neither suffered from nor had been hospitalized for mental illness. Brown's awareness of the penalty of at least one of the offenses was indicated by his comment that he was facing "about 20 years." R9 at 847. The district court advised Brown of the fact that "a lot of other people are also committing fraud" was not the best defense. Id. at 849.
The district court observed Brown during the trial as "quite attentive and writing many notes to his lawyer," and, although acknowledging that Brown had no legal training, as "bright," and had heard testimony of his prior legal experiences. R14 at 2020. The district court, permitted Brown to represent himself but appointed Smargon as stand-by counsel to advise Brown on legal procedural and substantive matters. The district court heard from Smargon that Brown wished to question the government's witnesses because Smargon and Brown did not agree on the questioning and Brown was directing Smargon to act in ways that Smargon did not want to do. R9 at 846; R11 at 1317. The district court learned from Brown that he "understood" the documentary evidence that Smargon had been unable to review and felt that he could "impeach every one of these witnesses." R9 at 847; R11 at 1320.
Further, Brown's trial performance supported his waiver. He effectively summoned and questioned witnesses in support of his theory of defense. He questioned them coherently and sharply, and elicited few objections. He delivered an effective summation of the evidence in support of his defense.
Although Smargon advised the district court of his back pain and the treatment for it, he delivered an opening statement setting forth the initial theory of defense, comprehensively and effectively cross-examined the government witnesses, and demonstrated a thorough grasp of the complex documentary evidence. Brown advised the district court that he did not believe Smargon performed ineffectively and, later, not only complimented Smargon on his work but also requested Smargon's representation at sentencing. Smargon, as stand-by counsel, continued to work with Brown and Brown continued to seek his advice.
Brown's decision to represent himself was not based on his disillusionment with Smargon's representation but with his disagreement with him over strategy. Smargon did not wish to recall government witnesses; Brown wanted them recalled in order to confront them with misrepresentations on the loan documents. Brown believed that, as an actual participant in the events and as a signatory to many of the documents, he had a unique and better understanding of the transactions and the documents.
The district court did not abuse its discretion in accepting Brown's waiver of his right to counsel and in permitting him to represent himself.
B. District Court Comments regarding Self-Representation
Brown contends that the district court clearly erred by advising the jury that it had warned Brown against self-representation and by implying that the defense was not credible.
Because Brown's counsel failed to object, we review a district court's jury instructions regarding his right to self-representation for plain error. See United States v. Guerrero, 935 F.2d 189, 193 (11th Cir. 1991); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). Plain error occurs when there is (1) an error, (2) that is plain, (3) that affects substantial rights and (4) which seriously affects the judicial proceeding's fairness, integrity or public reputation. Olano, 507 U.S. at 732, 113 S.Ct. at 1776. Clear comments regarding a defendant's decision to remain silent may constitute plain error that cannot be cured by a cautionary instruction. See United States v. Edwards, 576 F.2d 1152, 1154 (5th Cir. 1978) (per curiam). We will not reverse, however, unless our review of the jury instructions in their entirety, the presented evidence, and counsel's arguments reveal that the jury was misled and "manifest injustice" resulted. Autrey v. United States, 889 F.2d 973, 999 (11th Cir. 1989) (Clark, J., concurring in part and dissenting in part). Further, where there is no explicit language in a rule or statute, or precedent from the Supreme Court or this court resolving an issue, there is no plain error. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam).
A district judge is granted "wide discretion in managing the proceedings" within his courtroom and may "comment on the evidence," elicit or clarify facts, and interrupt counsel to maintain the pace of a trial. United States v. Day, 405 F.3d 1293, 1297 (11th Cir. 2005) (quotation marks and citation omitted). That discretion, however, does not include comments on the defendant's silence or jury instructions that such silence may be evidence of guilt. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). Further, the district judge's comments on the evidence must be made "with great care" because "juries are extremely sensitive to every word and intimation given by the judge." United States v. Jenkins, 901 F.2d 1075, 1083 (11th Cir. 1990) (brackets, quotation marks, and citation omitted). "What the jury may infer, given no help from the court, is one thing. What it may infer [from a district court's comments] is quite another." Davis v. United States, 357 F.2d 438, 441 (5th Cir. 1966).
Jury instructions are provided to give the jury "information to make the trial more meaningful" and "may be given, as the need arises, at appropriate points during the trial." Fed. Jud. Ctr., Benchbook for U.S. District Judges § 2.07 (4th ed. 2000). Specifically, during a trial, when a defendant discharges his counsel and decides to proceed pro se, a district court may instruct the jury regarding this change in personnel. Fed. Jud. Ctr., Pattern Crim. Jury Instructions § 6 (1987).
The suggested jury instruction reads:
Even though — was at first represented by a lawyer, he has decided to continue this trial representing himself and not use the services of a lawyer. He has a perfect right to do that. His decision has no bearing on whether he is guilty or not guilty, and it should have no effect on your consideration of the case. Fed. Jud. Ctr.,
Pattern Crim. Jury Instructions § 6.
See also Third Cir.,
Model Crim. Jury Instructions §§ 1.18 ("Pro Se Defendant") and 2.35 ("Discharge of Defense Counsel During Trial") (2010).
The Third Circuit's instructions address not only the defendant's decision to proceed pro se and directs the jury to treat the defendant's "words spoken . . . while functioning as counsel . . . not . . . as evidence," but also the appointment of standby counsel, id. Specifically, the instructions read:
Even though (name of defendant) was represented by a lawyer when this trial began, (he) . . . has decided to continue the trial representing (himself) and not to use the services of a lawyer. (He) . . . has a constitutional right to do that. (His) . . . decision has no bearing on whether (he) . . . is guilty or not guilty, and it must not affect your consideration of the case.
Because (name of defendant) has decided to act as (his) . . . own lawyer, you will hear (him) . . . speak at various times during the trial. (He) . . . may make . . . (a) closing argument. (He) . . . may ask question of witnesses, make objections, and argue to the court. I want to remind you that when (name of defendant) speaks in these parts of the trial (he) . . . is acting as a lawyer in the case, and (his) . . . words are not evidence. The only evidence in the case is the testimony of witnesses under oath exhibits admitted into evidence.
Id. at § 2.35 (italics omitted). The section addressing pro se representation provides similar language. Id. at § 1.18. Both sections also indicate that they are derived from Eighth Cir. § 2.22 and Fed. Judicial Ctr. § 6.
The district court's instruction provided the jury with such an instruction. It advised them that, after being advised of the risks, Brown had decided to represent himself for the remainder of the trial, that Smargon would remain as stand-by counsel, and that they should be mindful of the distinctions between Brown's role as counsel and his role as a witness. The instructions paralleled the instruction in circuits with a pattern instruction on the issue.
We have not adopted a pattern jury instruction addressing a defendant's conduct in representing himself or in discharging his counsel during a trial, see generally Eleventh Cir., Pattern Jury Instructions (Crim.Cases) (2003), and there is no case law setting forth an appropriate instruction.
The district court committed no plain error in instructing the jury regarding Brown's decision to represent himself.
C. Admission of Evidence Prior Convictions and Bad Acts
Brown maintains that the district court erred in permitting the government to introduce evidence of his prior conviction, his probationary status, and his prior false statements, and in allowing the government to use the evidence in its closing argument.
We generally review a district court's admission of evidence of prior convictions or bad acts under Federal Rule of Evidence 404(b) for abuse of discretion, United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008), but review for plain error if no objection was made in the district court, United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).
Although, generally, a motion in limine is not sufficient and a timely objection at trial is necessary to preserve an issue for review on appeal, United States v. Gari, 572 F.3d 1352, 1356 n. 2 (11th Cir. 2009), an in limine motion may preserve the issue "if a good reason exists not to make a timely objection at trial," Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1285 (11th Cir. 2000) (citation omitted); see also Fed.R.Evid. 103(a)(1).
After the government advised that it planned to introduce evidence of Brown's prior convictions through the testimony of Delmonaco and Guthrie, Brown, through Smargon, responded with specific objections and moved in limine to prevent this testimony. The district court denied Brown's motion. During the trial, when Smargon objected to Delmonaco's testimony regarding Brown's prior offenses, the district court overruled that objection and indicted that it was not necessary to approach the bench to present additional grounds. Smargon made similar specific and continuing objections before Delmonaco and Guthrie testified about the prior offenses and Brown's prior bad acts, and again was overruled. Because the specific grounds for the objections were presented in the motion in limine and were understood by all parties when the objections were renewed at trial, the issue were preserved for review on appeal.
"Evidence of other crimes, wrongs, or acts is not admissable to prove the character of a person" or the defendant's propensity to commit a similar crime. Fed.R.Evid. 404(b); United States v. Covington, 565 F.3d 1336, 1341 (11th Cir. 2009). With proper notice from the prosecution of the general nature of the evidence that it plans to introduce, such evidence "`may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . .,'" Covington, 565 F.3d at 1341 (quoting Fed.R.Evid. 404(b)), and may be admissible if it is "inextricably intertwined with the evidence regarding the charged offense," United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992) (citation omitted). Such intrinsic or otherwise admissable evidence maybe be excluded, however, "if its probative value `is substantially outweighed by the danger of unfair prejudice.'" Id. (citing Fed.R.Evid. 403). "`[U]nfair prejudice', as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (citation omitted). "[E]vidence of the name or nature of a prior offense generally carries a risk of unfair prejudice" and that risk is "especially obvious" where the prior conviction was for a crime similar to the charged offense. Id. at 185, 117 S.Ct. at 652. Unfair prejudice may be increased when the evidence is the testimony of a parole or probation officer and courts are cautioned to admit such testimony in limited and necessary circumstances with appropriate safeguards. United States v. Pierce, 136 F.3d 770, 775-76 (11th Cir. 1998) (citations omitted). Further, evidence without a logical nexus to both the extrinsic and charged offenses lacks probative value on the defendant's state of mind and demonstrates only "inherently prejudicial" evidence of a defendant's bad character. See United States v. Dothard, 666 F.2d 498, 503, 505 (11th Cir. 1982). The question, however, is not merely whether the evidence is prejudicial but whether its probative value is outweighed by this prejudice; the "line . . . is thin" between permissible and unduly prejudicial evidence. Fortenberry, 971 F.2d at 721 (quotation marks and citation omitted). The prejudicial effect of such evidence may be minimized by a limiting instruction from the district court. Id.
Evidence admitted under Rule 404(b)(1) "must be relevant to an issue other than the defendant's character," (2) the evidentiary act "must be established by sufficient proof to permit a jury finding that the defendant committed the extrinsic act," (3) "the probative value of the evidence must not be substantially outweighed by its undue prejudice," and (4) "the evidence must meet the other requirements of Rule 403." United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (per curiam) (citation omitted). Further, the evidence must (1) "concern[] the context, motive, and setup of the crime and [be] linked in time and circumstances with the charged crime," (2) "form[] an integral and natural part of the account of the crime," or (3) be "necessary to complete the story of the crime for the jury." Covington, 565 F.3d at 1342 (quotation marks and citation omitted).
Extrinsic evidence of other similar crimes may be introduced to show that the charged offense did not result from an accident or mistake, but from intent. Jernigara, 341 F.3d at 1281-82; see United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993). In weighing the probative value against the unfair prejudice, a court "should consider the differences between the charged and extrinsic offenses, their temporal remoteness, and the government's need for the evidence to prove intent." Diaz-Lizaraza, 981 F.2d at 1225. We also review the similarity of the methodologies, including the manner and methods in which the extrinsic and charged offenses were conducted, for signs of a distinctive modus operandi. United States v. demons, 32 F.3d 1504, 1509 (11th Cir. 1994).
At trial, the government introduced the information, judgment, and sentence from Brown's 2004 conviction for making false statements on mortgage applications, testimony describing the actions that led to that conviction, and Brown's probationary status at the time of the charged offenses. Delmonaco testified that she knew of Brown's prior conviction and that, due to her concerns about statements made in documents related to one of the charged offenses, Brown told her that Guthrie and Forman had reviewed the documents. She explained Brown's use of nominees in the mortgage applications, the creation of false documents, and arrangements for fraudulent verifications. Guthrie denied reviewing these documents and testified that Brown had made false statements to her about filing his income tax returns. The government also introduced Brown's grand jury testimony regarding his 2001 income and deposition testimony concerning his prior conviction.
The evidence of Brown's prior conviction for making false statements in mortgage fraud applications was properly introduced to establish his criminal intent and to rebut his claim that the misstatements were accidental or merely mistakes. Guthrie's testimony regarding the false statements that Brown gave her was introduced to show Brown's intent and knowledge of the impropriety of his actions. See United States v. Smolin, 182 F.2d 782, 786 (2d Cir. 1950) ("[E]xculpatory statements . . . when shown to be false, are circumstantial evidence of guilty consciousness and have independent probative force.").
Further, any problem with the government's introduction of the evidence of Brown's prior conviction and of his truthfulness, or lack thereof, was mooted when Brown testified. All of the objected evidence was then available for impeachment purposes. See Fed.R.Evid. 608(b), 609(a)(1). Brown also discussed his prior conviction and false statements during his defense. He reviewed the acts leading to his conviction in his history and in his explanation of how he became involved in real estate transactions and of how he went about financing the transactions. The district court did not abuse its discretion in admitting this evidence.
D. Substantive Reasonableness of Sentence
Brown argues that the district court's imposition of the statutory maximum sentence was substantively unreasonable in light of the totality of the circumstances, including the 18 U.S.C. § 3553(a) factors. He contends that the sentence is inconsistent with the Sentencing Commission's goals of imposing the most severe sentences on repeat offenders and for the most severe crimes because the loss involved in his fraud offense totaled less than $2 million and was caused, in part, by the. housing market crash. He declares that the district court failed to adequately consider that his offenses were not violent in nature, that he was not a drug dealer, that he had no history of committing robberies, burglaries, or other crimes of that nature, and that he had always been a good father to his children.
In preparing a sentencing recommendation, the probation officer separated the offenses into two groups: Group One for the fraud counts, (Counts 1-12) and Group Two for the tax evasion counts (Counts 13-18). With respect to Group One, Brown was subject to a base offense level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1), because the offense of conviction has a statutory maximum term of imprisonment of 20 years. Brown's base offense level was increased by 16 levels, pursuant to § 2B1.1(b)(1)(I), because the offense involved a loss of more than $1,000,000 but not more than $2,500,000; two levels, pursuant to § 2B1.1(b)(2)(A)(i), because the offense involved 10 or more but less than 50 victims; two levels, pursuant to § 2B1.1(b)(9)(C), because the offense involved the use of sophisticated means; and an additional two levels, pursuant to § 2B1.1(b)(13)(A), because Brown derived more than $1,000,000 in gross receipts from financial institutions from the offense. Brown also received a four-level enhancement, pursuant to § 3B1.1(a), because he was an organizer or leader of the criminal activity; a two-level enhancement, pursuant to § 3C1.1, for obstruction of justice; and a three-level enhancement, pursuant to § 3C1.3, because he committed the instant offense while on bond release. Brown's adjusted offense level for Group One was 38.
With respect to Group Two, Brown was subject to a base offense level of 20, pursuant to § 2T1.1(a)(1)(H), because the tax loss was more than $400,000 but not more than $1,000,000. Brown received a two-level enhancement, pursuant to § 3B1.1(c), because he was an organizer, leader, manager, or supervisor of the criminal activity; and a three-level enhancement, pursuant to § 3C1.3, for committing the offense while on bond release. Thus, Brown's adjusted offense level for Group Two was 25. Application of § 3D1.4's multiple count adjustment resulted in a combined adjusted offense level and a total offense level of 38.
Brown received three criminal history points as a result of his prior offense, and an additional two criminal history points, pursuant to § 4A1.1(d), because he committed the present offenses while serving a term of supervised release. Based on his five criminal history points, Brown was placed in criminal history category III. Brown's total offense level of 38 combined with criminal history category III yielded a guideline imprisonment range of 292 to 365 months. Brown was also subject to statutory maximum penalties of imprisonment terms of 20 years with respect to Counts 1-12; 1 year with respect to Counts 13-17; and 5 years with respect to Count 18.
Prior to sentencing, Brown filed objections to the PSI. First, he objected to the loss amount set forth in the PSI, asserting that he should have received only a 14-level enhancement, instead of a 16-level enhancement with respect to the fraud counts, because the loss amount was between $400,000 and $1,000,000. R2-223 at 1. Also with respect to the fraud counts, Brown objected to the enhancements he received for (1) the involvement of more than ten victims, (2) the use of sophisticated means, (3) being a supervisor or manager of the offense, (4) obstruction of justice, and (5) committing the offense while on bond. Id. With respect to the tax evasion offenses, Brown objected to the two-level enhancement he received for his role in the offense and the three-level enhancement for committing the offense while on bond release. Id. at 2. Brown also argued that he should not have received any criminal history points for a conviction that was over 10 years old. Id. Finally, Brown objected to the inclusion of certain prior offenses, for which he received no criminal history points, arguing that these offenses were committed by his brother. Id.
At the sentencing hearing, the district court noted that it had received a letter from a juror who believed that Brown "should receive a lengthy sentence." R21 at 3. The court also commented that the entire jury had informed the court, after trial, that Brown "deserved a harsh sentence and — they were not impressed with his presentation at trial," particularly Brown's argument that, if he had committed the fraud, he would have done a better job. Id. at 5-6. The court overruled Brown's objection to the government's fraud loss calculation, finding that the government's method of calculating the loss was a "conseivative methodology." Id. at 26, 41. The court also overruled Brown's objections to the enhancements for (1) the involvement of ten or more victims, (2) the use of sophisticated means, and (3) Brown's role as a supervisor or manager of the offense. Id. at 49, 54, 59. The court sustained Brown's objection to the three-level enhancement under § 3C1.3 based on Brown committing the offenses while on bond release. Id. at 78, 92-93. Brown's total offense level was reduced by three levels, to level 35, and his guideline imprisonment range was reduced to 210 to 262 months. Id. at 79. The court overruled Brown's objections to the two-level role enhancement with respect to the tax evasion counts, and to the one criminal history point that he received for a prior offense that he committed when he was 17 years old. Id. at 72-73, 80. Finally, the court overruled Brown's objection to the PSI's inclusion of prior offenses that he claimed were committed by his brother, because Brown did not receive criminal history points for these offenses and they did not affect the guideline calculations. Id. at 81.
The court determined that Brown was subject to a total offense level of 35, criminal history category III, and an advisory guideline range of 210 to 262 months. Id. The government recommended that the court sentence Brown to 262 months, at the top of the guideline range, because Brown had previously committed similar offenses, and he chose to continue violating the law to support his lifestyle, rather than obtaining a legitimate job. Id. at 82. It argued that Brown's activities caused Suarez's loss of his home, Zahlmann's bankruptcy, and Wilfredo's felony conviction. Id. at 83. It also noted that Brown's actions were detrimental to the properties that he owned and the neighborhoods where the properties were located. Id. at 83-84. The government contended that the court had a responsibility to deter conduct similar to Brown's, and maintained that Brown repeatedly lied to banks by misstating his income and liabilities. Id. at 84. The government observed that Brown, while on supervised release, failed to comply with Guthrie's instructions to file his taxes and lied to her. Id. at 85. It opined that Brown "got a break" on his previous fraud convictions by being sentenced to time served. Id. Finally, the government contended that Brown presented an economic danger from which the court should protect the community by imposing a lengthy prison sentence. Id. at 86.
Brown argued that a sentence between 70 and 87 months would accomplish the goals of sentencing and that his offense conduct did not involve weapons, drugs, or violence. Id. at 89. He also argued that, during the time of his offense, "mortgage brokering activity was rampant," and he simply "made some bad investments." Id. at 90. Brown noted that there was collateral for his loans and that he used the loan money to purchase the houses he had promised to purchase. Id. at 90-91. Brown also argued that a large portion of the losses for which he was responsible resulted from the decline in the housing market. Id. at 91. Brown noted that he had two very young children and was "a very solid father to both of [his] children." Id. at 91-92. He argued that his "resources would be much better served doing some time and then getting back on the street," so that he could take care of his children and pay his restitution. Id. at 92.
Before imposing the sentence, the district court stated that it had considered the parties' arguments, the PSI, and the 18 U.S.C. § 3553(a) sentencing factors. Id. It adopted the PSI's findings and guideline calculations, with the exception of the three-level enhancement for committing the offense while on bond. Id. at 92-93. The court found that
this is a serious crime. There is a need to protect the public because of [Brown's] repeated behavior. I find particularly critical the fact that he committed these crimes while on supervised release on another, with respect to another federal conviction for lying with respect to loan documents. During trial he showed no remorse and displayed an arrogance about his behavior. Mr. Brown also victimized family and friends in a particularly adverse fashion.
Id. at 93. After the court pronounced Brown's sentence, Brown renewed his prior objections.
Id. at 95.
We may review a sentence for procedural or substantive reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We review the substantive reasonableness of a sentence by considering the totality of the circumstances and, applying an abuse of discretion standard, we reverse only if we find that the district court has made "a clear error of judgment in weighing the § 3553(a) factors." United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks and citation omitted). The party challenging the sentence "bears the burden of establishing that the sentence is unreasonable in the light of both th[e] record and the factors in section 3553(a)." United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam).
"[T]he district [court] should . . . consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party." Gall, 552 U.S. at 49-50, 128 S.Ct. at 596. The factors in § 3553(a) that the court must consider are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.
Talley, 431 F.3d at 786 (citing
18 U.S.C. § 3553(a)).
"[W]e may find that a district court has abused its considerable discretion if it has weighed the factors in a manner that demonstrably yields an unreasonable sentence." Pugh, 515 F.3d at 1191. Normally, however, the decision of how much weight to accord particular factors in devising a sentence is within the discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
In light of the § 3553(a) factors, Brown's 240-month sentence is substantively reasonable. The district court noted that Brown had committed the most recent offenses while on supervised release for another federal conviction for lying with respect to loan documents and that the most recent offenses involved numerous instances of the same conduct and lying to his probation officer. Based on Brown's prior failure to cease his participation in illegal activity, the district court reasonably determined that a lengthy term of incarceration was necessary for deterrence purposes. The district court also stated that it considered the offense to be serious in nature and that it needed to protect the public from Brown's repeated behavior. Although Brown argues that his offense did not involve weapons, drugs, or the use of force, his actions caused widespread harm to individual victims, banks, properties, and the neighborhoods in which his properties were located. The court adequately considered the nature and circumstances of Brown's offense, and the 240-month sentence Brown received was not substantively unreasonable in light of his repeated illegal conduct and the damage it caused. We affirm Brown's sentence.
III. CONCLUSION
For the reasons stated, we AFFIRM Brown's conviction and sentence.