United States v. Mason

668 F.3d 203, 2012 WL 149784, 2012 U.S. App. LEXIS 1101
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 19, 2012
Docket10-31240
StatusPublished
Cited by7 cases

This text of 668 F.3d 203 (United States v. Mason) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mason, 668 F.3d 203, 2012 WL 149784, 2012 U.S. App. LEXIS 1101 (5th Cir. 2012).

Opinions

JENNIFER WALKER ELROD, Circuit Judge:

Randel Mason appeals his conviction for wire fraud and his sentence of 30 months’ imprisonment and $757,792.20 in restitution. He argues that the district court committed plain error by failing to advise [206]*206him during his guilty plea colloquy of his right to court-appointed counsel if financially eligible, as required by Rule 11 of the Federal Rules of Criminal Procedure. He also argues that the district court violated his Sixth Amendment right to choice of counsel by denying his motion, filed five weeks before his scheduled sentencing date, to substitute appointed counsel for his retained counsel. We AFFIRM Mason’s conviction, but VACATE his sentence and REMAND for re-sentencing.

I.

Mason is a building contractor and the former owner of Mason Construction Company, Inc., which built residential homes. Mason Construction built homes in five to seven stages. Upon completion of each stage, Mason Construction submitted a draw on its line of credit to its financing company, National City Mortgage (now PNC Mortgage). To receive these draws, Mason Construction submitted a completion certification and an inspection certification signed by an independent inspector.

The conduct relevant to Mason’s conviction involved Mason and his long-time office assistant and co-defendant, Tammy Dixon. In August 2005, Mason and Dixon crossed the line, submitting false documentation to National City Mortgage. By this scheme, Mason and Dixon fraudulently obtained $825,943.60. In December 2009, Mason and Dixon were charged with conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 371 and 1343, and twenty-nine counts of wire fraud, in violation of 18 U.S.C. § 1343.

Mason made his initial appearance before the magistrate judge on January 11, 2010, with retained counsel, David Williams. On April 12, 2010, Williams filed a motion to withdraw as counsel, which the magistrate judge denied on April 14. Thereafter, Mason appeared before the district court with Williams on the morning of June 3, 2010, to enter a guilty plea. The district court, however, continued the hearing until that afternoon after Mason said he was confused about the plea. The district court reconvened the hearing that afternoon, but had to reschedule it until June 23, 2010, because after the district court clarified the maximum possible sentence under the plea agreement, Mason indicated that he did not know what to do in light of more fully understanding the consequences of his plea. Before the conclusion of that hearing, Mason indicated that he intended to plead guilty because he did not think he could afford a long trial:

THE DEFENDANT: I’m sorry, but I — I don’t mean to waste the Court’s time. I just really don’t know what to do.
THE COURT: You’re not wasting anybody’s time. That’s what I’m paid to do. And I don’t do piecework, so I want you to be absolutely comfortable and assured of what you’re doing. So we’ll just put this off to another time.
THE DEFENDANT: Your Honor, I don’t mean to ... But no one ever interviewed me, and no one ever heard my side of the story. But yet, you know, I don’t want to go to jail or — you know, I mean, I have a serious problem with this because I didn’t create this problem.
THE COURT: Well, that’s — then do not plead guilty. If you—
THE DEFENDANT: But I can’t afford a long trial.
THE COURT: Well, I’m not sure how long the trial will be.
Let’s tentatively set this for 10:00 on June 23, at which time you can make up your mind what you wish to do. Okay?

[207]*207Although Mason did not enter a guilty plea on June 3, he did file a document entitled “Understanding of Maximum Penalty and Constitutional Rights” (Understanding of Constitutional Rights), which he had signed on April 30, 2010. In that document, Mason averred that he understood his “right to be represented by counsel (a lawyer) of [his] choice, or if [he could not] afford counsel, [his] right to be represented by court-appointed counsel at no cost to [him].”

On June 17, 2010, Williams filed a second motion to withdraw as Mason’s counsel, citing a breakdown in his ability to communicate with Mason that, he asserted, rendered effective representation impossible. The district court did not rule on this motion until the hearing on June 23, 2010. At that hearing the district court asked Mason about his relationship with Williams. Mason responded that he was now satisfied with Williams:

THE COURT: You were originally scheduled for a guilty plea today, but I gather you want to change attorneys? THE DEFENDANT: No, sir. Mr. Williams and I have spent quite a long time this week. I think I have a better feel now for what’s going on.
THE COURT: All right. So tell me; are we now agreed that Mr. Williams can represent you?
THE DEFENDANT: Yes, sir.
THE COURT: You’re sure you’re satisfied with that?
THE DEFENDANT: Yes, sir, I’m satisfied.

Before accepting Mason’s guilty plea, the district court again sought and received Mason’s assurance that he was satisfied with Williams’s representation:

THE COURT: ... All right. Mr. Mason, let’s talk frankly. This is the point at which I usually ask: Have you had all the time that you need to discuss this with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: You have? Are you sure you have?
THE DEFENDANT: Yes, sir.
THE COURT: And you are satisfied with him as a lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: Are you sure, because — tell me about why, how you came back to believing he was a good lawyer for you.
THE DEFENDANT: I never thought he wasn’t a good lawyer. I just was confused. I mean, we came in with one plea agreement and then I guess I got blindsided with another one, and I didn’t quite understand the consequences. And we just really weren’t communicating very well.
THE COURT: But you are now?
THE DEFENDANT: Yes, sir. He sat down and we talked at length, and I think I understand, yes, sir.
THE COURT: Are you sure you understand what’s happening?
THE DEFENDANT: Yes, sir.
THE COURT: And you are sure that you want to keep Mr. Williams?
THE WITNESS [sic]: Yes, sir.

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Cite This Page — Counsel Stack

Bluebook (online)
668 F.3d 203, 2012 WL 149784, 2012 U.S. App. LEXIS 1101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mason-ca5-2012.