529 F. App'x 532
6th Cir.2013Background
- Thomas Parenteau, an Ohio home builder, ran tax- and mortgage-fraud schemes (using girlfriend Pamela McCarty and accountant Dennis Sartain) that generated hundreds of thousands in tax refunds and approximately $20 million in fraudulent mortgage loans.
- Parenteau caused McCarty to file false tax returns and to convey refunds and loan proceeds to him; he also used deceptive loan applications and kickback arrangements with home buyers.
- When the IRS began investigating in 2005, Parenteau and Sartain shredded documents and had McCarty provide false information to investigators on multiple occasions.
- A grand jury indicted Parenteau (and Sartain) on obstruction, witness tampering, tax, bank/wire fraud, money laundering, and related conspiracy counts; a second superseding indictment charged multiple conspiracies and money-laundering offenses.
- At trial Parenteau elected to represent himself; after a seven-week trial a jury convicted him on most counts and the district court sentenced him to 264 months’ imprisonment plus restitution.
- Parenteau appealed, raising claims of prosecutorial and judicial misconduct, denial of continuances, improper admission of recorded conversations, and violations concerning counsel (conflict/appointment and self-representation issues).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct (derogatory remarks) | Prosecutor made disparaging, prejudicial remarks that denied due process | Remarks were limited, often responses to Parenteau’s conduct; not pervasive or prejudicial | Rejected — remarks did not permeate trial atmosphere or likely prejudice verdict |
| Judicial bias based on rulings | Judge’s evidentiary rulings and trial management showed bias against Parenteau | Rulings were ordinary evidentiary/management decisions; judicial rulings alone rarely prove bias | Rejected — rulings were not a valid basis for bias under Liteky |
| Denial of continuances (including after self-representation) | Court denied needed continuances, prejudicing his defense after he invoked self-representation | Court had previously granted many continuances, provided extensive access to discovery/documents, and accommodated self-representer | Rejected — no abuse of discretion; denial not arbitrary or unreasoning |
| Admission of taped conversations | Tapes were protected by joint-defense agreement, unauthenticated, and Rule 106 required admission of full recordings | McCarty withdrew from joint-defense for those conversations; McCarty authenticated tapes; excluded portions sought were inadmissible hearsay or unnecessary for context | Rejected — tapes admissible; authentication and Rule 106 arguments fail |
| Conflict/ineffective assistance re retained counsel | Retained counsel had a conflict, rendering representation ineffective | Such claims are typically raised post-conviction; record did not warrant departure from normal rule | Not addressed on direct appeal — claim not reviewed here |
| Denial of new appointed counsel before trial | Court improperly refused to replace appointed counsel two weeks before trial, violating right to counsel | Motion was untimely; court held a hearing, evaluated complaints, and issued reasoned denial | Rejected — denial was not an abuse of discretion; motion untimely and properly considered |
Key Cases Cited
- United States v. Henry, 545 F.3d 367 (6th Cir. 2008) (standard for reviewing prosecutorial-misconduct objections)
- United States v. Davis, 514 F.3d 596 (6th Cir. 2008) (extent of prosecutorial misconduct requiring reversal)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial rulings ordinarily not proof of bias)
- United States v. Crossley, 224 F.3d 847 (6th Cir. 2000) (abuse-of-discretion standard for continuances)
- United States v. Gallo, 763 F.2d 1504 (6th Cir. 1985) (continuance denial constitutional standard)
- In re Teleglobe Commc’ns Corp., 493 F.3d 345 (6th Cir. 2007) (limits on invoking joint-defense privilege as post hoc shield)
- United States v. Morales, 687 F.3d 697 (6th Cir. 2012) (abuse-of-discretion standard for evidentiary rulings)
- United States v. Henderson, 626 F.3d 326 (6th Cir. 2010) (scope of Rule 106 in admitting additional parts of conversations)
- United States v. Crosgrove, 637 F.3d 646 (6th Cir. 2011) (Rule 106 does not admit otherwise inadmissible evidence)
- United States v. Holden, 557 F.3d 698 (6th Cir. 2009) (hearsay limits on admitting portions of recorded statements)
- United States v. Williams, 176 F.3d 301 (6th Cir. 1999) (untimeliness as ground to deny substitution of counsel)
- United States v. Mooneyham, 473 F.3d 280 (6th Cir. 2007) (review of appointed-counsel substitution for abuse of discretion)