United States v. Christopher Cannon , 560 F. App'x 599 ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 26, 2014
Decided March 27, 2014
Before
DIANE P. WOOD, Chief Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Nos. 12-3832 & 13-2201
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
Nos. 2:11cr16-001 & 2:12cr14-001
CHRISTOPHER H. CANNON,
Defendant-Appellant. Joseph S. Van Bokkelen,
Judge.
ORDER
Christopher Cannon, a self-professed “Public Minister of the Moorish Science
Temple of America,” used fake $50 bills to buy three televisions from Sears. After a jury
trial in December 2011, during which Cannon was removed from the courtroom for
disruptive behavior, he was found guilty of passing counterfeit money. See 18 U.S.C.
§ 472. The district judge sentenced him to 30 months’ imprisonment, but before that, in
January 2012, Cannon was charged in a second indictment with two counts of mail
fraud arising from false insurance claims he submitted after his house burned down.
See id. § 1341. That case also went to trial, and Cannon again was removed from the
Nos. 12-3832 & 13-2201 Page 2
courtroom for disruptive behavior. The jury found him guilty on one count, and he was
sentenced to 30 months’ imprisonment, to be served consecutively to the 30 months
imposed for the counterfeiting conviction.
Cannon filed a notice of appeal from each judgment, and we have consolidated
the two appeals for decision. Cannon is representing himself in his appeal from the
counterfeiting conviction and has filed a brief on the merits.* Appointed counsel
represents him in his appeal from the conviction for mail fraud, but the lawyer has
moved to withdraw on the ground that all potential appellate claims are frivolous.
See Anders v. California, 386 U.S. 738, 744 (1967). Cannon opposes counsel’s Anders
submission. See CIR. R. 51(b).
We start with Cannon’s appeal from his counterfeiting conviction. He devotes
most of his brief to his professed status as a “Public Minister” representing the
“Moorish National Government.” Cannon says that his true name is “Christopher H-
Cannon:Bey” and declares that he is “a living, breathing full-liability man.” His status as
a “public minister,” says Cannon, means that the district court lacked jurisdiction over
him, violated his “rights and immunities” under Illinois law and the federal
Constitution, and “trespass[ed] on the Religious Trust and Estate of the Moorish Science
Temple Of America.” We will not indulge arguments like these; they are frivolous, and
the district court acted properly by summarily rejecting them. See United States v. Benabe,
654 F.3d 753, 767 (7th Cir. 2011).
Cannon does challenge the appointment of counsel to represent him at trial, but
that challenge has no merit. Cannon had the right to represent himself, but that right
could not be exercised without knowingly and intelligently waiving the right to
counsel. See Faretta v. California, 422 U.S. 806, 835 (1975); Smith v. Grams, 565 F.3d 1037,
1044 (7th Cir. 2009). Cannon did his best to avoid making a choice. He said repeatedly
that he did not want any help from his appointed lawyer, yet he also insisted that he
was unwilling to represent himself. At a status hearing a few weeks before trial, the
district judge had understood Cannon to be asking that his appointed lawyer be
discharged and that he be allowed to represent himself. When the judge acceded but
appointed the same lawyer as standby counsel, Cannon responded,“Well, I still must
object because I’m not representing myself here today.” That comment prompted the
*
After examining the briefs and record in that appeal, no. 12-3832, we have
concluded that oral argument is unnecessary. Thus, that appeal is submitted on the
briefs and record. See FED. R. APP. P. 34(a)(2)(C).
Nos. 12-3832 & 13-2201 Page 3
judge to reconsider, and when Cannon next appeared before him a few weeks later, the
judge once more asked if he wanted to represent himself. Cannon replied, “I do not
wish to contract with your corporation at all,” and the judge, seeking clarification,
asked, “That means you don’t want to represent yourself, correct?” Cannon answered:
“I do not wish to contract with your corporation. I give you a better answer. I do not
consent waiver of benefit.” When the judge probed further, Cannon continued, “Well,
what I prefer to do here, sir, is formally request and demand my diplomatic immunity
under my treaty and enforce my treaty here today with the United States and ask—and
formally request and demand that the United States honor and request my treaty.” That
was enough for the judge, who reappointed Cannon’s lawyer. Cannon may have hoped
that, by rejecting appointed counsel and refusing to represent himself, he could force the
judge to dwell on frivolous theories about immunity and jurisdiction. But the judge
rightly declined to take the bait, see Benabe, 654 F.3d at 767, and it was not error to find
that Cannon never knowingly and intelligently waived his right to counsel.
Cannon’s belligerent behavior also foils his claim that it was error to remove him
from the courtroom during trial. Every defendant has a right to be present at trial,
see FED. R. CRIM. P. 43(a); Illinois v. Allen, 397 U.S. 337, 338 (1970); Benabe, 654 F.3d at 768,
but that right can be waived, explicitly or implicitly through misconduct, see FED. R.
CRIM. P. 43(c)(1)(C); Allen, 397 U.S. at 342–43; Benabe, 654 F.3d at 768. Throughout the
pretrial proceedings Cannon had voiced his frivolous legal theories in countless
statements made in open court. He often refused to answer the district court’s
questions, treating those inquiries as invitations to lodge an objection or pose his own
question to the court, and he had no qualms about interrupting the court or counsel
during the proceedings. Because of this history, Cannon’s own lawyer proposed
immediately before jury selection that he be excluded from the courtroom during trial.
Cannon responded with more of the same frivolous objections and statements. The
district judge tried reasoning with him and asked multiple times if he would allow his
lawyer to represent him without interruption. Cannon would not answer and continued
his spiel, even after the judge twice warned that further interruptions would lead to
exclusion from the courtroom. Cannon’s disruptive behavior justified removing him,
and that misconduct did not abate when, at each break in the trial, the judge had
Cannon returned to the courtroom to see if he was willing to control himself.
Lastly, Cannon argues that the government engaged in vindictive prosecution.
This contention is frivolous. The government cannot prosecute in retaliation for
exercising protected statutory or constitutional rights, but challenging the prosecutor’s
motivation requires clear evidence of vindictiveness. See United States v. Armstrong, 517
Nos. 12-3832 & 13-2201 Page 4
U.S. 456, 464 (1996); United States v. Jarrett, 447 F.3d 520, 524–25 (7th Cir. 2006); United
States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006). Cannon accuses the prosecutor of
making the case “a personal matter … all because Cannon:Bey [was] standing up for his
constitutional secured rights, his god given rights and his rights under his treaty.” But
Cannon provided no evidence that his prosecution for counterfeiting was anything
more than the predictable response to passing phony currency.
We turn now to the Anders motion filed by appointed counsel in Cannon’s
appeal from his conviction for mail fraud. Our review is limited to the potential issues
identified in counsel’s facially adequate brief and in Cannon’s opposition. See United
States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Three of the potential arguments discussed by the lawyer and Cannon warrant
only brief mention. First, as already discussed, any appellate claim premised on
Cannon’s status as a “public minister” would be frivolous. Second, it would be frivolous
to challenge the appointment of counsel, for Cannon again took the position of both
rejecting appointed counsel and refusing to represent himself, despite the district court’s
patient efforts at discerning Cannon’s wishes one way or the other. Third, it would be
frivolous to challenge Cannon’s removal from the courtroom during trial; he engaged in
the same misbehavior that led to his removal from his counterfeiting trial, and he told
the judge that he could not promise to refrain from interrupting the proceedings.
Counsel considers whether Cannon could argue that the government’s evidence
is insufficient to sustain the jury’s verdict but properly concludes that this argument
would be frivolous. We would view the evidence in the light most favorable to the
government and uphold the conviction if any rational jury could have found the
essential elements of mail fraud beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. McMillan, No. 12-1348, 2014 WL 945212, at *4 (7th
Cir. Mar. 12, 2014). To obtain a conviction for mail fraud, the government had to show
that Cannon participated in a fraudulent scheme, intended to defraud, and used the
Postal Service or an interstate carrier to further the scheme. See 18 U.S.C. § 1341; United
States v. Fernandez, 282 F.3d 500, 507 (7th Cir. 2002). The government presented evidence
that, after his home burned, Cannon received in the mail a check from his insurance
company to satisfy his claim for the cost of alternative housing. Cannon had
substantiated that claim with a copy of a lease, but at trial the owner of the house
testified that she had never met or leased property to Cannon, and her adult daughter
admitted that she had helped Cannon draft the fake lease and forged her mother’s
name. Cannon’s appointed lawyer at trial argued that the fraud was immaterial because
Nos. 12-3832 & 13-2201 Page 5
he would have been entitled to living expenses in any event, but appellate counsel
rightly dismisses that defense as frivolous. In a prosecution for mail fraud, the
government is not required to establish that the defendant’s scheme was directed at
obtaining money or property that he would not have been entitled to through legal
means. See United States v. Richman, 944 F.2d 323, 330–31 (7th Cir. 1991); United States v.
Gole, 158 F.3d 166, 168 (2d Cir. 1998). There was plenty of evidence for the jury to find
Cannon guilty.
Both counsel and Cannon consider arguing that the government engaged in
vindictive prosecution, a challenge that would be reviewed for plain error because it
was not raised in the district court. See United States v. Algee, 309 F.3d 1011, 1014 (7th
Cir. 2002); see also Puckett v. United States, 556 U.S. 129, 135 (2009). We agree with
counsel that this challenge would be frivolous. Counsel first points out that Cannon was
indicted for mail fraud a little more than a month after he was found guilty of
counterfeiting, but there is nothing particularly suspicious about that timing. This is not
a case in which the prosecutor brought additional charges involving the same conduct
after the defendant successfully challenged a conviction, see Blackledge v. Perry, 417 U.S.
21, 28–29 (1974), or in which the defendant received a longer sentence after a second
trial on the same charges, see North Carolina v. Pearce, 395 U.S. 711, 723–25 (1969). And
neither counsel nor Cannon identifies any evidence to suggest that the prosecutor
brought charges of mail fraud vindictively.
Second, counsel points out that the prosecutor recommended a 20-year sentence,
even though the calculated guidelines range for the mail-fraud conviction was 18 to 24
months. Calling this disparity “troubling,” counsel nevertheless concludes that resting a
vindictiveness claim on that disparity would be frivolous because we would review
only for plain error. We agree with counsel’s ultimate conclusion; even an obvious error
will not lead to reversal on plain-error review unless that error affected the appellant’s
substantial rights, see Puckett, 556 U.S. 129, 135 (2009), and Cannon’s substantial rights
were not affected because the district judge rejected the prosecutor’s recommendation
and, as we will see, imposed a substantively reasonable sentence.
What’s more, we would not even find error because the recommended sentence
could well have been justified. The prosecutor argued that the district judge should
exercise his discretion under 18 U.S.C. § 3553(a) to impose the statutory maximum
sentence. According to the prosecutor, a 20-year sentence is justified by evidence
submitted at the sentencing hearing that Cannon had committed other uncharged
crimes, including attempting to commit more insurance fraud after a fire in another
Nos. 12-3832 & 13-2201 Page 6
residence he owned, defrauding the food stamp program of $600,000, and unlawfully
possessing six guns, including a semi-automatic rifle with an obliterated serial number.
Cannon’s criminal history includes a burglary conviction and a serious drug felony
conviction, so the gun possession by itself could have led to a guidelines range as high
as 168 to 210 months. See U.S.S.G. § 2K2.1(a). Given the evidence of uncharged conduct,
and a criminal history category that the judge deemed “understated,” the prosecutor’s
recommendation does not suggest vindictiveness.
Nor does the judge’s discomfort with imposing the statutory maximum based on
uncharged conduct make the recommendation vindictive. Judges are permitted to make
findings about uncharged conduct so long as those determinations do not increase the
statutory penalties. See 18 U.S.C. § 3553(a); Alleyne v. United States, 133 S. Ct. 2151, 2158
(2013); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Indeed, calculating the guidelines
range often requires judicial findings about relevant conduct. See U.S.S.G. § 1B1.3. The
prosecutor might have argued that the uncharged insurance fraud was relevant
conduct, see United States v. Frith, 461 F.3d 914, 917–18 (7th Cir. 2006); United States v.
Ojomo, 332 F.3d 485, 490 (7th Cir. 2003), and even Cannon’s unlawful possession of
firearms, had that conduct been proven to the judge’s satisfaction, would have been a
permissible basis for imposing a prison sentence above the guidelines range, see 18
U.S.C. § 3661 (“No limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of imposing an appropriate
sentence.”); United States v. Jordan, 435 F.3d 693, 697 (7th Cir. 2006) (finding above-
guidelines sentence for stalking and having sex with a minor justified, in part, because
of defendant’s gun possession). The judge decided that the uncharged crimes, if used to
enhance Cannon’s sentence, would amount to a “tail which wags the dog of the
substantive offense.” See McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986). But that
decision was an exercise of the judge’s sentencing discretion, not a conclusion that the
prosecutor’s proposal was not grounded in fact and law.
Counsel next considers whether Cannon could argue that the district judge erred
by sentencing him in absentia. As with trial, defendants have a right to be present at
sentencing, see FED. R. CRIM. P. 43(a), but that right can be waived by voluntary absence,
see FED. R. CRIM. P. 43(c)(1)(B); United States v. Achbani, 507 F.3d 598, 601–02 (7th Cir.
2007); United States v. Reyes-Sanchez, 509 F.3d 837, 839 (7th Cir. 2007). Cannon refused to
come to court on the day that his sentencing originally was scheduled, so the judge
postponed the proceeding for more than a month and directed that Cannon be served a
notice informing him about the rescheduled date and his right to be present.
Nos. 12-3832 & 13-2201 Page 7
A counselor at the Metropolitan Correctional Center read the order to Cannon and gave
him a copy. When Cannon still refused to attend the hearing, the judge found that
Cannon had waived his right to be present under Rule 43. We agree with counsel that
challenging that finding would be frivolous. See Achbani, 507 F.3d at 601.
Finally, counsel evaluates Cannon’s sentence, considering first whether Cannon
could argue that his sentence was imposed in violation of law or was substantively
unreasonable. Counsel has identified no problems with the guidelines calculation of 18
to 24 months’ imprisonment or any clearly erroneous facts relied on by the district
judge. And before imposing a prison term that is six months longer than the calculated
range, the judge considered the factors under § 3553(a)—including Cannon’s
“consistent history of disregard for the law” and “understated” criminal history
category. See 18 U.S.C. § 3553(a)(1), (2). We agree that any challenge along these lines
would be frivolous.
Second, counsel considers challenging the district court’s order of restitution on
the ground that the jury did not determine the amount of loss. A jury must find facts
that increase the statutory punishment defendants face, see Alleyne, 133 S. Ct. at 2158;
Apprendi, 530 U.S. at 490, and “punishment” includes a criminal fine, see Southern Union
Co. v. United States, 132 S. Ct. 2344 (2012). But we have held that restitution is a civil
remedy and does not require a jury to find the amount of loss. See, e.g., United States v.
Wolfe, 701 F.3d 1206, 1216–18 (7th Cir. 2012); United States v. Bonner, 522 F.3d 804, 807
(7th Cir. 2008). We thus agree with counsel that, in view of existing circuit precedent, a
challenge to the restitution order would be frivolous. We acknowledge, however, that
the circuits are divided over whether restitution is a civil or criminal penalty, see Wolfe,
701 F.3d at 1217 (noting circuit split), and Cannon may petition the Supreme Court for a
writ of certiorari if he so desires. See Austin v. United States, 513 U.S. 5, 5–6 (1994).
The judgment in appeal no. 12-3832 is AFFIRMED. Counsel’s motion to
withdraw in appeal no. 13-2201 is GRANTED, and that appeal is DISMISSED.