United States v. Bryson ( 2004 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-4836
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM M. BRYSON, JR.,
Defendant - Appellant.
No. 04-6010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM M. BRYSON, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (CR-01-240; CR-01-712)
Submitted: October 1, 2004 Decided: November 30, 2004
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
No. 01-4836, affirmed in part, vacated and remanded in part; No.
04-6010, dismissed by unpublished per curiam opinion.
Michael A. MacKinnon, Greenville, South Carolina, for Appellant.
Mark C. Moore, Assistant United States Attorney, Columbia, South
Carolina; Regan Alexandra Pendleton, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Following a jury trial, William M. Bryson, Jr., was
convicted of numerous charges arising out of a scheme to defraud
Ethel Swink out of money and properties. These charges include
conspiracy, 18 U.S.C. § 371 (2000), mail fraud, 18 U.S.C.A. § 1341(West Supp. 2004), making false statements, 18 U.S.C. § 1001(2000), money laundering, 18 U.S.C.A. §§ 1956, 1957 (West 2000 &
Supp. 2004), and conspiracy to launder money in violation of 18
U.S.C.A. § 1956(h) (West Supp. 2004). He was also convicted of
threatening to assault a federal official, 18 U.S.C.A. § 115 (West
2000 & Supp. 2004), and mailing a threatening communication, 18
U.S.C.A. § 876 (West Supp. 2004). The district court sentenced
Bryson to 188 months imprisonment, followed by five years of
supervised release. The court also imposed a $6300 special
assessment, ordered restitution in the amount of $1,348,491, and
provided for forfeiture of Bryson’s interest in property in the
amount of $800,000, as directed in the preliminary order of
forfeiture.
Bryson noted these two appeals from the judgment. The
second notice of appeal (No. 04-6010) was filed on December 29,
2003, seeking review of his sentence. A notice of appeal in a
criminal case must be filed within ten days of the entry of
judgment. Upon a finding of excusable neglect or good cause, the
district court may extend the time to file a notice of appeal for
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a period not to exceed thirty days. Fed. R. App. P. 4(b)(4).
These time limits are mandatory and jurisdictional. United
States v. Raynor, 939 F.2d 191, 197 (4th Cir. 1991); United
States v. Schuchardt, 685 F.2d 901, 902 (4th Cir. 1982). Because
Bryson’s second notice of appeal from his judgment and commitment
order was filed well beyond both the appeal period and the time in
which the district court could have granted an extension, this
court is without jurisdiction over this appeal. Accordingly,
appeal No. 04-6010 is dismissed.
In appeal No. 01-4836, Bryson’s attorney filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), representing
that, in his view, there are no meritorious issues for appeal, but
asserting that Bryson was denied timely access to some discovery
materials and that the district court may have erred in admitting
into evidence a statement made by Bryson. Bryson has filed a pro
se supplemental brief raising a plethora of issues. After a
thorough and painstaking review of this voluminous record, we have
identified an error in the determination of the forfeiture amount
with respect to district court case No. 01-712, and vacate in part
and remand with instructions to conform the judgment to the
evidence. In all other respects, Bryson’s convictions and
sentences are affirmed.
We find no merit to Bryson’s claims that his Fourth
Amendment rights were violated during the search of his residence
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and the seizure of his records. See United States v. Sprinkle, 106
F.3d 613, 616-17 (4th Cir. 1997) (providing standard). We also
find no merit to Bryson’s assignments of error with respect to the
order directing a psychiatric examination and his claim that he was
denied a speedy trial. See 18 U.S.C. § 3161(h)(1)(A) (2000)
(excluding any delay “resulting from any proceeding, including
examinations, to determine the mental competency or physical
capacity of the defendant”); see United States v. West, 877 F.2d
281, 285 n.1 (4th Cir. 1989).
We have reviewed Bryson’s numerous challenges to the
sufficiency of the indictment and the sufficiency of the evidence
and find no error. See Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Wicks, 187 F.3d 426, 427 (4th Cir. 1999);
United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998).
Contrary to Bryson’s contention that he was forced to
proceed pro se during his trial, we find that the court
appropriately advised Bryson of the dangers of self-representation
and conducted an adequate inquiry to assure that his waiver of
counsel was: (1) clear and unequivocal; (2) knowing, intelligent,
and voluntary; and (3) timely. We conclude that the district court
appropriately allowed Bryson to proceed pro se. See Faretta v.
California, 422 U.S. 806, 835 (1975); United States v. Frazier-El,
204 F.3d 553, 558 (4th Cir. 2000). Additionally, the court
required Bryson to proceed with hybrid representation—appointing a
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lawyer to serve as Bryson’s standby counsel. Such a decision was
within the district court’s discretion. McKaskle v. Wiggins, 465
U.S. 168, 176 (1984).
Counsel asserted that Bryson was denied access to some of
the discovery materials in sufficient time to prepare for trial.
See Fed. R. Crim. P. 16(a)(1)(E). While Bryson did not receive
records in one of the eleven boxes of documents and records in a
timely manner, once the oversight was discovered, the government
made every effort to assure that Bryson had sufficient time and
opportunity to review these records. We find no abuse of
discretion by the district court in allowing the use of these
records, given that Bryson was provided access to them and he
asserts no prejudice from the delayed access. See United States v.
Beras, 183 F.3d 22, 27 (1st Cir. 1999); United States v. Ford, 986
F.2d 57, 59 (4th Cir. 1993).
The other issue raised by counsel in the Anders brief is
that the district court erred in allowing the jury to hear evidence
that, shortly after the Oklahoma City bombing incident, Bryson
remarked to Ethel Swink’s nephew that he, Bryson, would be capable
of such a thing. The government asserted that the evidence was
relevant to present a chronology and an explanation for the origin
of the proceedings that led to the discovery of Bryson’s misdeeds
with respect to Swink’s assets.
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Even if the evidence is relevant under Fed. R. Evid.
404(b), it must be more probative than prejudicial in order to be
admissible. See Fed. R. Evid. 403. Here, we find that this
evidence of Bryson’s comment concerned a sensitive subject matter,
made even more sensitive by the events of September 11, 2001. See
United States v. Tedder, 801 F.2d 1437, 1444 (4th Cir. 1986)
(citations omitted). However, in light of the overwhelming
evidence of Bryson’s guilt, we find that any error in the admission
of this statement was harmless. See United States v. Ince, 21 F.3d
576 (4th Cir. 1994); United States v. Grooms, 2 F.3d 85, 89 (4th
Cir. 1993).
Bryson asserts that the government’s use of the testimony
of three attorneys violates the attorney-client privilege. We find
that the challenged communications either were not made within the
attorney-client relationship or fell within the crime-fraud
exception, and therefore admission of the evidence did not
implicate the privilege. See In re Grand Jury Subpoena, 884 F.2d
124, 127 (4th Cir. 1989).
Next, contrary to Bryson’s challenge, there was no
violation of his Fifth Amendment privilege against self-
incrimination by the use at trial of financial records and
documents seized from Bryson’s residence pursuant to the search
warrant. See Andresen v. Maryland, 427 U.S. 463, 473 (1976)
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(finding no violation of Fifth Amendment in the admission into
evidence of business records seized from defendant’s law office).
Additionally, we have reviewed the district court’s
rulings on all other evidentiary objections raised during Bryson’s
trial, and find no abuse of discretion. See United States v.
Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).
Bryson contends that the amount of the special verdict of
forfeiture for his convictions pursuant to indictment No. 01-712
was not supported by the charges. We agree, and accordingly remand
this case to the district court to conform the judgment to the
evidence. The jury found that $340,000 was involved in or
traceable to specific offenses for which Bryson was convicted in
indictment No. 01-712. The counts to which the jury attributed and
identified this sum all involved specific, uncontested dollar
amounts. The sum of the funds involved in those counts is only
$338,666.68. Additionally, the jury erroneously included two
counts arising from the same transaction. Thus, we find that the
preponderance of the evidence does not support the jury’s $340,000
special verdict. See United States v. Cherry, 330 F.3d 658, 669-70
(4th Cir. 2003) (providing standard). Accordingly, we vacate the
judgment as to the amount of the forfeiture with respect to
indictment No. 01-712, and remand with instructions to the district
court to conform the judgment to the evidence. The resulting
forfeiture judgment should be reduced by the $1,333.32 difference
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between the verdict amount and the sum of the amounts involved in
the designated counts and also by the $40,000 that was erroneously
double-counted, resulting in a special verdict of forfeiture for
indictment No. 01-712 of $298,666.68.
Bryson next argues that the forfeiture order was not made
part of the criminal judgment within seven days of sentencing and
therefore is not valid. He asserts that the district court cannot
modify a sentence more than seven days after the date of
sentencing. See Fed. R. Crim. P. 35(a). Although Bryson’s
sentencing hearing occurred on May 23, 2002, the judgment and
commitment order was entered on the docket on June 18, 2002, and
specifically incorporated the preliminary forfeiture order, which
was signed on June 10, 2002 and entered on June 18, 2002. Bryson
is entitled to no relief on this claim.
Bryson also challenges the contents of the forfeiture
order, asserting that he did not own the properties designated for
forfeiture and that there was no showing that the properties were
purchased with tainted funds. These contentions are meritless.
The order provided for forfeiture of Bryson’s interest in any
substitute asserts pursuant to 21 U.S.C.A. § 853(p)(1), (2) (West
Supp. 2004), and the court expressly provided that the United
States was “entitled to forfeiture of equivalent substitute
property [ ] in substitution for such property.” See United
States v. Moffitt, Zwerling & Kemler, P.C., 83 F.3d 660, 664 (4th
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Cir. 1996); United States v. Hurley, 63 F.3d 1, 23-24 (1st Cir.
1995). Because the properties listed in the forfeiture order were
designated as substitute assets, the government was not required to
show that the specific seized assets were acquired with Swink’s
money or with tainted funds.
We have also reviewed the district court’s calculation of
Bryson’s sentence under the U.S. Sentencing Guidelines Manual and
Bryson’s challenges to that sentence and find no reversible error.
Accordingly, with the exception of the forfeiture order discussed
above, we affirm Bryson’s sentence.
Bryson contends that he was denied the effective
assistance of counsel. We have previously determined that Bryson
knowingly, intelligently, and voluntarily chose to waive counsel
and proceed pro se. See Faretta, 422 U.S. at 835. Having chosen
to proceed pro se, Bryson cannot now assert that he was denied the
effective assistance of counsel. Id. at 834-35 n.46. Moreover, to
the extent that Bryson was represented by counsel, because the
record in this case does not conclusively establish that counsel
was ineffective, such a challenge may be brought, if at all, in a
proceeding under 28 U.S.C. § 2255 (2000). See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997).
In conclusion, we dismiss appeal No. 04-6010 for lack of
jurisdiction. In appeal No. 01-4836, we affirm Bryson’s
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convictions and his sentence, except to the extent that we have
determined that the forfeiture verdict in case No. 01-712 is not
supported by the preponderance of the evidence. Accordingly, we
vacate the judgment and commitment order in part and remand the
case with instructions to the district court to conform the
forfeiture verdict to the evidence. All pending motions are
denied.
This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
No. 01-4836, AFFIRMED IN PART,
VACATED AND REMANDED IN PART;
No. 04-6010, DISMISSED
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