959 F.3d 847
7th Cir.2020Background
- Between April 2011 and March 2015 Cross deposited large checks drawn on out-of-state accounts that lacked sufficient funds into several southern Illinois banks, then promptly withdrew the funds; total loss ≈ $516,000.
- Indicted on five counts of bank fraud under 18 U.S.C. § 1344(1); entered a guilty plea on March 16, 2018.
- Cross cycled through three court-appointed attorneys; he filed pro se motions days before sentencing seeking to terminate counsel, withdraw his plea, and dismiss the case.
- At the sentencing hearing the district court heard argument, denied the motion to terminate counsel on the merits, denied the motion to dismiss because it was filed pro se while represented, and denied the motion to withdraw the guilty plea both on the merits and because it was filed pro se.
- The court sentenced Cross to 78 months’ imprisonment and five years’ supervised release; Cross appealed the denial of his motion to withdraw his guilty plea.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of motion to withdraw guilty plea | Cross: plea not knowing/voluntary because court/plea colloquy omitted an element (materiality) required under Neder | Government: §1344(1) does not require an independent materiality instruction; alternatively motion was filed pro se while Cross was represented | Affirmed: court’s denial upheld primarily because plea-withdrawal motion was filed pro se while Cross had counsel; court also found plea knowing on the merits |
| Element of materiality for §1344(1) | Cross: Neder requires materiality and he was not advised / government presented no evidence of it | Government: materiality not necessary / scheme akin to check-kiting | Not decided on merits: panel noted Neder and LeBeau point toward requiring materiality in §1344(1) cases but affirmed on alternative procedural ground; record contained evidence suggesting material misrepresentations |
| Motion to terminate counsel / invoke Faretta right to self-representation | Cross: his motion to “terminate” counsel plus attached letter amounted to an unequivocal request to proceed pro se | Government / court: request was ambiguous — could mean substitution, proceed pro se, or limited relief; no unequivocal invocation | Affirmed: request was ambiguous, no Faretta colloquy required, no abuse of discretion denying termination/substitution of counsel |
| Court’s rejection of pro se filings while represented | Cross: court improperly rejected/limited his pro se submissions and cut him off | Government: district courts have wide discretion to reject pro se submissions by represented defendants; motion seemed untimely and dilatory | Affirmed: court permissibly rejected pro se filings given representation by competent counsel and timing aimed at delaying proceedings |
Key Cases Cited
- Haslam v. United States, 833 F.3d 840 (7th Cir. 2016) (standard of review for denial of motion to withdraw guilty plea)
- Bradshaw v. Stumpf, 545 U.S. 175 (2005) (guilty plea must be voluntary, knowing, and intelligent)
- Brady v. United States, 397 U.S. 742 (1970) (same; plea voluntariness framework)
- Neder v. United States, 527 U.S. 1 (1999) (materiality of falsehood is an element of federal fraud offenses)
- LeBeau v. United States, 949 F.3d 334 (7th Cir. 2020) (discussing application of Neder to §1344 and recommending materiality instruction)
- Mancillas v. United States, 880 F.3d 297 (7th Cir. 2018) (defendant must clearly and unequivocally invoke Faretta right)
- Patterson v. United States, 576 F.3d 431 (7th Cir. 2009) (district court discretion over pro se submissions by represented defendants)
- Best v. United States, 426 F.3d 937 (7th Cir. 2005) (factors for assessing motion to substitute counsel)
- Arenal v. United States, 500 F.3d 634 (7th Cir. 2007) (PSR may be considered to establish factual basis for plea)
- Freed v. United States, 921 F.3d 716 (7th Cir. 2019) (noting material misrepresentation is an element of bank fraud)