United States v. Christopher Cannon

NONPRECEDENTIAL DISPOSITION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.