United States v. Jeffrey Cohen
888 F.3d 667
| 4th Cir. | 2018Background
- Jeffrey B. Cohen, former president of Indemnity Insurance Corp., led an insurance-fraud scheme (2008–2013) that produced over $100 million in premiums by submitting fabricated financial documents to regulators.
- Indicted on 31 counts (Dec. 2014); arrested June 2014 and detained after agents discovered weapons and threats.
- Cohen proceeded largely pro se after a Faretta hearing; standby counsel was appointed and later replaced.
- He pleaded guilty (June 2015) to four counts (wire fraud, aggravated identity theft, false statements to an insurance regulator under 18 U.S.C. §1033(a), and obstruction), signing a plea agreement with a broad appeal waiver.
- The district court found enormous loss figures and multiple Guidelines enhancements, producing an advisory life-range capped by statute; the court sentenced Cohen to an aggregate 444 months (Dec. 2015).
- On appeal the Fourth Circuit (1) enforced the appeal waiver in part, (2) considered whether the waiver barred Cohen’s Farmer hearing challenge, (3) reviewed a Sixth Amendment claim about reinstating counsel at sentencing for plain error, and (4) evaluated an Apprendi challenge to the §1033(a) enhancement for plain error.
Issues
| Issue | Plaintiff's Argument (Cohen) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether district court erred by denying a Farmer hearing on asset seizures | Cohen: needed seized (untainted) assets to hire counsel of his choice; Farmer hearing required | Gov: Cohen sought funds only to hire standby counsel of his choice; he failed to make prima facie showing of untainted assets; appeal waiver bars review | Dismissed by court as barred by valid appeal waiver; Cohen sought funds for standby counsel (no right to chosen standby) |
| Whether magistrate abused discretion by denying late motion to rescind pro se status and appoint counsel for final sentencing (Sixth Amendment) | Cohen: late request; uncomfortable proceeding at sentencing; entitled to counsel reinstatement | Gov: appeal waiver doesn’t bar this claim but Cohen failed to preserve it; request untimely and tactical; magistrate properly weighed timeliness and prejudice | Affirmed: denial not an abuse of discretion; plain-error review found no error affecting substantial rights |
| Validity and scope of plea-agreement appeal waiver | Cohen: challenges rely on constitutional or other defects that fall outside waiver | Gov: waiver was knowing, intelligent, and broad; bars most appellate challenges including sentencing and plea-withdrawal claims | Fourth Circuit: waiver valid and enforceable; many issues dismissed under the waiver |
| Whether sentencing on Count 24 (§1033(a)) violated Apprendi by imposing a 15-year statutory maximum without indictment/jury finding | Cohen: indictment and plea colloquy did not support 15-year enhancement; Apprendi error | Gov: facts at sentencing supported enhancement; any claim is subject to plain-error review and is not outcome-determinative | Addressed under plain-error review: even if error, it did not affect substantial rights or outcome; no relief granted |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (1975) (defendant has right to represent himself if waiver of counsel is knowing and intelligent)
- McKaskle v. Wiggins, 465 U.S. 168 (1984) (limits and role of standby counsel in Faretta cases)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory maximum must be charged and submitted to jury)
- Olano v. United States, 507 U.S. 725 (1993) (plain-error review framework)
- United States v. Farmer, 274 F.3d 800 (4th Cir. 2001) (procedure for Farmer hearing when defendant claims restrained assets are untainted)
- United States v. West, 877 F.2d 281 (4th Cir. 1989) (once waived, right to counsel is not absolute; courts weigh timeliness and prejudice for renewed requests)
- United States v. Tollett, 411 U.S. 258 (1973) (guilty plea forecloses prior non-jurisdictional challenges)
- United States v. Johnson, 410 F.3d 137 (4th Cir. 2005) (limits on enforceability of plea appeal waivers; certain claims may survive waiver)
- United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (plain-error considerations for unpreserved sentencing issues)
- United States v. Catone, 769 F.3d 866 (4th Cir. 2014) (Apprendi/harmless-error analysis in sentencing context)