The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0656n.06
Case No. 16-1839
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 28, 2017
BERNICE BROWN, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
UNITED STATES OF AMERICA, ) DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
)
) OPINION
BEFORE: COLE, Chief Judge; McKEAGUE and STRANCH, Circuit Judges.
COLE, Chief Judge. Bernice Brown is a federal prisoner serving a 151-month sentence
for her role in a multi-million dollar healthcare fraud. During the course of her district court
proceedings, Brown cycled through five attorneys: two that the court appointed under the
Criminal Justice Act (“CJA”) and three that Brown privately retained. After Brown’s last-
retained counsel filed a notice of appeal, Brown wrote a letter to this court stating “I will be
filing my Appeal Pro Bono [sic], until I am able to select another attorney or be granted a Court
Appointed Attorney for my case. . . . I will keep the court updated as to when I retain new
counsel and/or obtain an appointed legal representative.” (No. 10-2668, R. 37.) Brown then
proceeded pro se in her appeal, which was denied.
Case No. 16-1839, Brown v. United States
Brown now appeals the denial of her motion to vacate her sentence under 28 U.S.C.
§ 2255 on the grounds that she was denied her constitutional right to appointed counsel on
appeal. The district court concluded that Brown was not denied that right because she was not
indigent: she retained private counsel to represent her and her letter indicated she could retain
other counsel. We AFFIRM.
I. BACKGROUND
Brown was the owner and president of Wayne County Therapeutic, Inc., a clinic that
provided outpatient therapy services and submitted over twenty-four million dollars in fraudulent
billings to Medicare.
On June 24, 2009, an indictment was unsealed charging Brown and codefendant Daniel
Smorynski with conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349 and six
counts of healthcare fraud and aiding and abetting in violation of 18 U.S.C. § 1347 and
18 U.S.C. § 2. Brown’s first retained counsel, G. Whitney McRipley, entered an appearance the
same day. He represented Brown for her arraignment but was terminated within a month.
A superseding indictment was filed, which added three counts of healthcare fraud and aiding and
abetting.
On March 26, 2010, the district court appointed Brown counsel under the CJA. The order
stated that “Brown qualifies for the appointment of counsel under the [CJA]” until “the
appointment is terminated by (1) Order of the Court, (2) appointment of substitute counsel, or
(3) appearance of retained counsel.” (R. 71, PageID 216.) A month later, Brown moved to
terminate that counsel as well.
The district court appointed Fred Walker as substitute CJA counsel in May 2010. Walker
represented Brown throughout her trial, which ended in a jury verdict of guilty on all counts.
-2-
Case No. 16-1839, Brown v. United States
Like the others, Walker’s representation did not last long; a few weeks later, Brown moved to
terminate his services for ineffective assistance of counsel. (R. 113, PageID 835.) The district
court’s order stated that Brown “has been informed of her responsibility to either obtain counsel
for further proceedings or represent herself.” (R. 154, PageID 1650.)
Brown thereupon retained Lloyd Johnson, who filed his appearance on August 25, 2010.
Unfortunately, Johnson passed away about a month later. When Brown indicated she was
making arrangements for new counsel, the district court noted that “[t]he alternative is to have
another attorney assigned, which would be like your third or fourth.” (R. 230, PageID 3582.)
Brown then retained Dionne Webster-Cox, who entered her appearance on October 28,
2010, and represented Brown at sentencing. The district court sentenced Brown to 151 months of
imprisonment, three years of supervised release, $6,721,272.30 restitution, and $1,000 in special
assessments. Webster-Cox filed Brown’s notice of appeal and paid for her transcripts and filing
fees. But on March 24, 2011, Webster-Cox moved to withdraw because “[her] services were
terminated.” (No. 10-2668, R. 30.)
In its order granting Webster-Cox’s withdrawal, the clerk’s office requested a status
report from Brown and Smorynski “advising if they intend to retain new counsel or represent
themselves on appeal.” (No. 10-2668, R. 32.) In a letter dated April 9, 2011, Brown responded:
I wish to notify the Court that I will be filing my Appeal Pro bono [sic], until I am
able to select another attorney or be granted a Court Appointed Attorney for my
case. This letter to your office being submitted as my written status report with
the court, as required by May 4th, 2011. Please note the above-referenced
information and I will keep the court updated as to when I retain new counsel
and/or obtain an appointed legal representative.
(No. 10-2668, R. 37.) Brown did not update the court and filed her appellant’s brief pro se. This
court affirmed her conviction and sentence on November 5, 2012.
-3-
Case No. 16-1839, Brown v. United States
Brown filed a pro se motion to vacate her sentence under 28 U.S.C. § 2255 raising
several claims, including that Brown was denied her constitutional right to appointed counsel on
appeal. The district court rejected all of her claims. The court found that Brown did not have a
right to appointed counsel on appeal because she was not indigent, but granted a certificate of
appealability on that issue.
Brown was appointed counsel for this appeal.
II. ANALYSIS
Brown’s motion for habeas corpus relief under § 2255 must allege: (1) an error of
constitutional magnitude, (2) a sentence imposed outside the statutory limits, or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid. Nichols v. United
States, 563 F.3d 240, 250 (6th Cir. 2009) (citation omitted). Brown alleges a constitutional
error: that she was denied her right to appointed counsel on direct appeal. See Douglas v.
California, 372 U.S. 353 (1963); Halbert v. Michigan, 545 U.S. 605 (2005). The denial of this
right is a structural error that does not require a showing of prejudice to obtain relief. See United
States v. Detloff, 794 F.3d 588, 594 (6th Cir. 2015). But “absent a constitutional right, [Brown]
has no claim.” Nichols, 563 F.3d at 250. The parties agree that Brown’s constitutional right to
appointed counsel depends on whether she was indigent.
In habeas proceedings, we review a district court’s legal conclusions de novo and its
factual findings for clear error. Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013). The
district court’s determination of non-indigence is a factual finding reviewed for clear error.
“‘Clear error’ occurs only when we are left with the definite and firm conviction that a mistake
has been committed. If there are two permissible views of the evidence, the factfinder’s choice
-4-
Case No. 16-1839, Brown v. United States
between them cannot be clearly erroneous.” United States v. Kellams, 26 F.3d 646, 648 (6th Cir.
1994) (citation omitted).
The district court determined that Brown was not indigent because she retained counsel.
Brown appeared with privately retained counsel three times throughout the proceedings.
McRipley represented Brown in her arraignment, Johnson represented her briefly after trial, and
Webster-Cox represented her during sentencing and the start of her appeal. Brown did not claim
she was unable to pay them.1 Even after Johnson unexpectedly passed away, and the district
court reminded Brown that “the alternative is to have another attorney assigned,” Brown retained
Webster-Cox. (R. 230, PageID 3582.) Brown’s subsequent letter to this court suggested she
could afford private counsel—as she concluded, “I will keep the court updated as to when I
retain new counsel and/or obtain an appointed legal representative.” (No. 10-2668, R. 37.)
We have previously found that the appearance of privately retained counsel raises a
“serious question” as to whether a defendant is indigent. United States v. Iles, 906 F.2d 1122,
1134 (6th Cir. 1990). “When there is representation by privately retained, non-appointed
counsel . . . the defendant himself achieves the precise objective set forth in the cases
proclaiming that an indigent is entitled to have the state furnish that which he cannot
afford: counsel to represent him.” United States ex rel. O’Brien v. Maroney, 423 F.2d 865, 869
(3d Cir. 1970); see United States v. Aloi, 9 F.3d 438, 443–44 (6th Cir. 1993).
1
Brown states, for the first time on appeal and without substantiation, that she made “financial
arrangements” with both Johnson and Webster-Cox based on the expected proceeds of a civil
suit they would file on her behalf. Appellant’s Mot. for Appointment of Counsel at 1. Even if we
accepted this waived argument, “funds [that] will not become available for payment until some
future date” are evidence of financial ability to afford counsel. See United States v. Wilson,
597 F.3d 353, 360 (6th Cir. 2010). Indeed, two different attorneys apparently found the
arrangement sufficient to represent Brown.
-5-
Case No. 16-1839, Brown v. United States
Other courts have applied the same reasoning. In United States v. Austin, the Fifth Circuit
considered whether a criminal defendant previously represented by retained counsel was entitled
to appointed counsel under the CJA. 812 F.3d 453 (5th Cir. 2016). In a much less ambiguous
letter than Brown’s, the defendant wrote to the court expressing his concerns about his
representation and “asking the court to appoint new counsel as [he] has exhausted all of [his]
resources.” Id. at 455. The court explained that a request for appointed counsel must specify
financial inability to obtain counsel. Id. at 456. Like Brown, the defendant “had already retained
counsel and therefore could not allege that he lacked the funds to obtain a lawyer. [He] does not
state in his letter that he either owed money to [his counsel] or that he could not pay [him] any
sum that was owed.” Id. The court accordingly concluded that he did not show he was eligible
for appointed counsel. Id.
Brown’s strongest argument in support of her indigence is that she was previously
appointed CJA counsel. The CJA authorizes district courts to appoint counsel “for any person
financially unable to obtain adequate representation.” 18 U.S.C. § 3006A(a). But the standard of
financial inability is “something less than indigency or destitution.” United States v. Harris,
707 F.2d 653, 660 (2d Cir. 1983). The record here does not clarify the basis for the district
court’s finding of financial eligibility for appointed counsel, as might otherwise provide support
for a finding of indigence. For example, Brown did not submit the CJA form financial affidavit
typically used to prove financial inability to pay. See United States v. Murphy, 469 F.3d 1130,
1135 (7th Cir. 2006). Nor did the district court make factual findings in the record as part of its
“appropriate inquiry that the person is financially unable to obtain counsel.” 18 U.S.C.
§ 3006A(b); see United States v. Parker, 439 F.3d 81, 94–95 (2d Cir. 2006).
-6-
Case No. 16-1839, Brown v. United States
Even assuming financial eligibility under the CJA is equivalent to indigence, the district
court was not bound to that finding. “What the [CJA] gives with one hand to a criminal
defendant ‘financially unable’ to pay for legal services it takes away with the other if the
defendant turns out to be ‘financially able’ to obtain counsel.” Wilson, 597 F.3d at 357. A
defendant’s financial circumstances may change or conflict with earlier reports about her ability
to pay. See id. at 355, 357. The CJA authorizes the court to terminate appointed counsel or order
repayment “at any time after the appointment of counsel” in such a situation. 18 U.S.C.
§ 3006A(c). Indeed, the district court’s order appointing counsel here expressly provided for
such a change in circumstances in terminating upon “appearance of retained counsel.” (R. 71,
PageID 216.)
Based on this record, the district court did not clearly err in finding that Brown was not
indigent. Even “[i]f there are two permissible views of the evidence”—that Brown was not
indigent because she covered the costs of her counsel, or that she was indigent because the court
agreed to cover these costs at other stages—“the factfinder’s choice between them cannot be
clearly erroneous.” See Kellams, 26 F.3d at 648 (citation omitted). We accordingly defer to the
district court’s factual finding that Brown was not indigent and thus did not have a right to
appointed counsel on direct appeal.
III. CONCLUSION
For these reasons, we affirm the district court’s order denying Brown’s § 2255 motion.
-7-