[DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                      AUGUST 23, 2010
                                    No. 08-16912
                                                                         JOHN LEY
                              ________________________
                                                                          CLERK

                         D. C. Docket No. 07-80187-CR-DMM

UNITED STATES OF AMERICA,


                                                                          Plaintiff-Appellee,

                                            versus

GREGORY CLAUDE BROWN,

                                                                      Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                     (August 23, 2010)

Before BIRCH and MARCUS, Circuit Judges, and HODGES,* District Judge.

PER CURIAM:

       *
          Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
      Defendant-appellant Gregory Claude Brown (“Brown”) appeals his

conviction and sentence for conspiracy to commit mail and wire fraud, failure to

timely file income tax returns, and tax evasion. He argues that the district court

erred by allowing him to represent himself, improperly commenting on his right to

represent himself, admitting evidence of prior convictions and bad acts, and

imposing the statutory maximum sentence. We find that the district court did not

err and AFFIRM.

                                I. BACKGROUND

      Brown moved to Florida in the late 1990s and became involved with Emy

Delmonaco (“Delmonaco”). R5 at 158-60. They had a daughter in 2001. R5 at

166; R18 at 2768-69. Brown sold mobile homes, opened a nightclub, and,

eventually, decided to acquire, renovate, and resell houses. R5 at 159-62; R18 at

2768-70. Because of his limited resources, he conducted transactions in

Delmonaco’s name, using her credit and her bank accounts, and concocted false

income statements and assets, misrepresenting their residential intentions and

financial liabilities. R5 at 168, 172, 178-79, 185-89, 193-98, 215, 222-25, 228-31,

236-41, 246-47; R18 at 2770-71. Delmonaco acknowledged that Brown

completed at least one mortgage application and misrepresented her employer, her

position at the employer, the balance in her bank account, additional income from



                                          2
rents, an employer letter and bonus, and her annual earnings as indicated on a W-2

form. R5 at 193-98. Through these endeavors, he procured financing, and, during

2000-01, purchased five residential tracts based upon fraudulent mortgage

applications. R5 at 173; R18 at 2770-73. The mortgages were structured with

seller’s concessions for repairs on the distressed homes so that Brown and

Delmonaco received cash back at the closings. R5 at 170, 208-09. They used the

cash that they received not only for the needed repairs but also for living expenses

and to purchase additional properties. 

176-77, 185-86, 194, 214, 222-

23. After Brown and Delmonaco separated in 2002, Delmonaco obtained a court

order for $1,000 per month child support. 

R6 at 291-92. Brown

satisfied that and other obligations from his real estate transaction proceeds and

profits but filed no income tax returns. R18 at 2665.

      Through his real estate transactions, Brown met Nick DeAngelis

(“DeAngelis”), who operated a company named “Giasi” and also engaged in fraud

and tax evasion. 

In 2003, Brown established Global Dynamics

Consulting (“GDC”) and also began working for Giasi. R5 at 256. At Giasi, he

received a salary and sales commissions but did not report these earning to the IRS.

R2 at 1954-56; R5 at 256.

      DeAngelis’ and Brown’s activities were investigated by federal agents.



                                           3
Brown was charged with knowingly and willfully making a false statement on a

loan application and creating false earning statements and W-2 wage and tax

statements for Delmonaco. R6 at 338-39. He negotiated a guilty plea and his

cooperation against DeAngelis was made known to the district judge. R19 at

2966-68. Brown testified against DeAngelis in three separate proceedings, and

was subsequently sentenced to time served, three years supervised release, and 100

hours of community service. R6 at 339, 366-67; R19 at 2958, 2968. After Brown,

however, failed to file his delinquent tax returns, actively concealed his business

activities from his probation officer, Janet Guthrie (“Guthrie”), and falsely claimed

to have completed his community service, his supervised release was revoked.

R10 at 1214-25; R11 at 1237-1306; R19 at 2961-62.

      Following his release from custody, Brown began a number of speculative

ventures using his own funds and funds he obtained from business acquaintances,

family, and friends: stock investments, casino ownership, acquiring and reselling

raw diamonds, and land purchases. R11 at 1444-45; R14 at 1911; R18 at 2693,

2834-35, 2856-57; R19 at 2899.

      Brown became involved with Monica Martinez (“Martinez”) and they had a

daughter in 2004. R6 at 296. That same year, Brown and Martinez leased with an

option to purchase property at 326 Kenilworth Boulevard, West Palm Beach,



                                           4
Florida (“Kenilworth”). 

472-74. After taking possession, however,

Brown failed to make rental payments and began extensive renovations contrary to

the rental agreement and without the landlord’s permission. 

To

avoid eviction for these acts, Brown exercised his option to purchase and acquired

the property in April 2004 with $329,000 in mortgage financing provided by his

landlord. 

       Brown failed to make his mortgage payments and foreclosure proceedings

commended in July 2004. 

To avoid foreclosure, Brown sold the

property to Martinez for $550,000. 

498-500. Martinez’s application for

mortgage financing was submitted by mortgage broker Kimball Johnson. R9 at

819-22. In the application, Martinez falsely stated that she was the owner of GDC,

and had worked for GDC for two years earning $20,000 per month. 

1016. Brown’s accountant, Terry Forman, provided false verification for

Martinez’s employment. 

Brown composed a letter purportedly from a

contractor inaccurately detailing improvements to the property to justify the

increase in value. R7 at 686-88. The application was granted by an out-of-state

lender who wire transferred the proceeds to Martinez’s account.1 R9 at 835-36.


       1
         In 2005, Brown was again unable to make his mortgage payments and sold the property
for $718,000 to a buyer recommended by mortgage broker Brent Woodson. R7 at 745; R9 at
780, 784-85, 1000-01. The buyer was assured by Brown that he would lease the property back
from the buyer after the sale for an amount to cover the mortgage payments. R7 at 746, 748; R9

                                              5
       Brown next purchased a residence at 186 Yale Circle, Lake Worth, Florida

(“Yale”). R10 at 1068-69. He initially portrayed the buyer as his stepfather who

was mis-identified as the well-paid owner of GDC. 

1059-61. Before

the closing, however, Brown substituted himself as the buyer and, working with

mortgage broker Brent Woodson (“Woodson”), submitted a request for $430,000

for mortgage financing. 

Brown falsely claimed that he had been

employed for ten years by GDC where he received a significant salary, and that the

property, which was uninhabitable at that time, would be his primary residence.

R19 at 2914. He submitted verification of long-term rental

payments made to Martinez, omitted his child support payments from his

application, and detailed $60,000 due to contractor Tony Piedra for work done on

the property.2 

This loan was financed by an out-of-state wire transfer.3

       During the spring of 2005, Brown bought three more properties: 311

Greenwood Drive, West Palm Beach, Florida (“Greenwood”); 2409 Zeder Ave.,

Delray Beach, Florida (“Zeder”); and 245 Fordham Drive, Lake Worth, Florida


at 794-97. Brown, who represented himself as the property owner, also agreed to covertly cover
the down payment. R7 at 746, 750, 757; R9 at 800, 1003. After the property was sold, Brown
made no rental payments and the property was foreclosed. R7 at 760-65, 770; R9 at 783.
       2
           At closing, a check was issued for $60,000 to Piedra who immediately endorsed it and
used it to finance the down payment. R7 at 690-97; R19 at 2916-17.
       3
         Brown subsequently refinanced the property twice but was never able to obtain the
necessary permits to make the property habitable. R19 at 2918. It was eventually foreclosed.

                                               6
(“Fordham”). Delmonaco served as a real estate agent on all three properties,4

Woodson handled the mortgage applications for the Greenwood and Zeder

properties, and Brown’s half-brother, Joseph F. Farmer (“Farmer”), handled the

Fordham mortgage application. R6 at 299-300, 303-16, 318, 320-21, 323-24, 327,

328-36; R10 at 1085-86, 1095-96; R19 at 2918-20, 2922, 2924-25. Each

application was submitted to a different lender and did not disclose the other

pending financing requests. R9 at 858-60. In both the Greenwood and Fordham

applications, Brown claimed that the properties would be his primary residence and

he submitted fictitious leases to offset the mortgage obligations which were

acknowledged. R9 at 852, 860-66; R19 at 2919. In each of the applications,

Brown falsely stated that he had been employed by GDC for ten years and failed to

disclose his child support payments. R6 at 311-12, 322-23, 326-27; R9 at 850-51,

855-56. All of the applications were granted and funded by out-of-state lenders

who wire transferred the loan proceeds to the respective closings. R11 at 1387,

1400; R12 at 1689, 1692-94; R14 at 1993, 1995, 2000.

      In January 2006, Delmonaco, as Brown’s real estate agent, and Brown

contracted to sell the Greenwood property to Anthony Parks (“Parks”). R6 at 330;

R19 at 2919-20. When Delmonaco learned that Brown and Parks had agreed to



      4
          By then, Delmonaco had obtained her real estate license. R6 at 304.

                                               7
inflate the sales price with Brown promising to remit the excess mortgage proceeds

to Parks, she cautioned Brown that the arrangement was fraudulent and declined

further involvement. R6 at 333-35; R19 at 2920. She was concerned about Brown

proceeding with the transaction, because she believed that he was on federal

probation for mortgage fraud. 

Brown claimed that the transaction had

been approved by his probation officer, persisted in the arrangement, pocketed the

additional mortgage proceeds, and refused to share them with Parks. R6 at 340;

R19 at 2922.

      In 2005, Brown applied for and obtained a mortgage loan for a property at

799 W. Silverdale Road, Queen Creek, Arizona, using Farmer as his broker. R12

at 1671-72, 1680-81. In the application, Brown acknowledged his mortgage

obligations on the Fordham, Greenwood, Yale, and Zeder properties, but showed

false rental agreements on them. 

1682-84. He falsely indicated that he

had no dependents, paid no child support, and had a monthly income of $30,000

per month. 

1677-78. Once the loan was granted, the proceeds were

wire-transferred to Brown from out of state. 

      About the same time, Brown persuaded Jorge Suarez (“Suarez”) to sell him

Suarez’s home located at 2714 Fairway Cove, West Palm Beach, Florida and to

invest $100,000 in one of Brown’s diamond ventures. R14 at 1911-13. Suarez



                                         8
planned to lease the property from Brown, and to buy it back after a profit was

realized from the diamond investment. 

Brown obtained the

mortgage loan and the proceeds were wire transferred from an out-of-state lender.5

      In late 2005, Brown convinced Wilfredo Martinez (“Wilfredo”), Monica

Martinez’s father and a former sugar mill worker, to invest $100,000 in Brown’s

diamond venture. R11 at 1437, 1444. Wilfredo raised the money by mortgaging

his residence on Coconut Drive and giving the equity to Brown. 

The diamond venture failed in February 2006. R19 at 2898-99. Brown promised

to repay Wilfredo through his purchase of a property located at 4607 Arlette Court,

Lake Worth, Florida. R11 at 1445-50. Using Farmer as the mortgage broker,

Wilfredo applied for a loan that included misrepresentations as to his employment

history and income. 

1470-72, 1474-77, 1480. In the application,

Wilfredo was stated to have been a “regional representative” for GDC for five and

one-half years, and to earn $11,500 per month. 

R12 at 1498. In

actuality, Wilfredo had worked for GDC as a handyman for one and one-half

years. R11 at 1457. The financing was provided by an out-of-state wire transfer.

      Brown also assisted Wilfredo with the refinancing of a property located at



      5
          Brown defaulted on the loan, and the property was foreclosed. R14 at 1933-35.

                                               9
109 Paradise Harbor Drive, North Palm Beach, Florida. R12 at 1499-1501.

Farmer served as the mortgage broker, and the mortgage application set forth the

same misrepresentations as to Wilfredo’s employment history and income. 

1480, 1499-1501. The mortgage financing was approved and provided by an

out-of-state wire transfer. 

1501.

       In the spring of 2006, Brown applied for financing by separate applications

through Farmer to purchase two luxury condominiums at “The Lofts,” 108 Lake

Avenue, Lake Worth, Florida. 

1576, 1582, 1608, 1610. Each

condominium cost over one-half million dollars. 

In each application,

Brown indicated that the respective unit would be his primary residence and failed

to list other pending mortgage loan applications or his child support payments. 

1583, 1610-12. Brown indicated that his monthly income was $40,000 on

one application and $76,000 per month in another. 

1599. Both loan

applications were granted, and the loan proceeds were wire transferred or mailed.6

1632.

       Brown was indicted, with others,7 for conspiring to commit or having

committed fraud, in violation of 18 U.S.C. § 1349, 1343, and 1341, in the

       6
        Brown’s properties at The Lofts subsequently were foreclosed. R2-220, Exh. “Loss for
Brown;” R12 at 1637.
       7
          Co-indictees were Martinez and Wilfredo. Both entered guilty pleas before Brown’s
trial. R11 at 1438-39.

                                             10
disclosing allegedly false and fictitious mortgage applications and associated

documents relating to multiple residential properties in Florida and Arizona. R1-

104. The government claimed that on the applications for almost every property,

Brown had: stated that the property was his primary residence and that he had been

self-employed through GDC for ten, instead of two, years; submitted false

documentation that the properties were leased; submitted false verifications for

employment for Martinez and others; failed to disclose ownership of various

properties; simultaneously submitted and failed to disclose the submission of

multiple mortgage applications to separate financial institutions; omitted his child

support obligation; claimed false rental income from properties he owned; inflated

his personal income; obtained false documentation from to corroborate his and

Martinez’s employment and income; and obtained and submitted false letters

detailing improvements to properties to justify an increase in value. The

government also alleged that he failed to timely file his tax returns from 2001

through 20005, in violation of 26 U.S.C. § 7203, and lied to about doing so. The

government charged that Brown evaded taxes from 1998 through 2005, in

violation of 26 U.S.C. § 7201, by using Delmonaco’s checking account and

attributing his income, mortgage interest payments, and sales profits to her, and by

having Martinez open a bank account for Brown’s benefit with his funds in her



                                          11
name. Following arraignment, Assistant Federal Public Defender Samuel Smargon

(“Smargon”) was appointed to represent Brown.

      Prior to trial, the United States formally notified Brown of its intent to

introduce evidence of his prior fraudulent mortgage fraud to demonstrate

knowledge, intent, and the lack of accident or mistake. R1-118 at 1-2. It claimed

that the earlier offenses were inextricably intertwined with the charged offenses,

especially the tax charges since Brown’s earned income from his former acts

constituted unreported or evaded income. 

It advised that Brown’s

probation officer would testify regarding the false information that he had provided

to her. 

Smargon opposed the government’s motion but noted that Brown

planned to testify and that the evidence could then be used. R3 at 6-7; R5 at 116-

17, 122-23. After observing that Brown’s false statements could be used for

impeachment, the district court asked the government to explain how they planned

to use the evidence. 

The government responded that the evidence

showed his knowledge of the truthfulness required on a mortgage loan application

and his intent to obtain mortgages by making false statements, and his evasion of

taxes. 

121-22. The district court denied the motion in limine but

noted that Brown could offer specific objections. 

      During the opening statements, Smargon set forth the theory of defense. He



                                          12
explained that Brown’s alleged mortgage application misrepresentations were not

intentional but were, instead, immaterial and inadvertent mistakes, resulting from

Brown’s disorganized and numerous endeavors in purchasing fifteen homes. R5 at

142-48. He also suggested to the jury that Brown’s failure to file his taxes was

based on his lack of income and his understanding that he was not required to do

so due to his financial losses. 

      Delmonaco testified about the earlier mortgage frauds and her concern for

Brown’s continued efforts to seek a mortgage that she understood might be

fraudulent. R5 at 189, 193-98, 203, 221-23, 228-31, 234-39, 242-43, 245-47; R6

at 336-40. When the government sought to question Delmonaco about monies that

Brown had received during the earlier mortgage fraud transactions, Smargon

objected that the questions were “outside of the scope of the indictment” and asked

for a sidebar. 

The district court replied that the sidebar was “not

necessary” and overruled the objection. 

introduced a transcript of Brown’s testimony before a grand

jury. 

Smargon stated that he had “a continuing objection to th[e]

entire line of questioning,” but no specific objection to the admission of the

transcript. 

He then clarified that the continuing objection was as to all

of Delmonaco’s testimony. 

court admitted the transcript over



                                           13
objection. 

government’s request, Delmonaco to read Brown’s testimony

regarding the income that he received from Giasi in 2001. 

      Delmonaco testified about her work as a real estate agent with Brown on

transactions involved in the charged offenses. R6 at 299-338. She explained that,

after she became concerned that at least one of the transactions constituted

mortgage fraud, she removed herself from the transaction and contacted Brown

regarding her concerns because she knew that he was on probation. 

338, 340. Brown advised her that he had “check[ed] in with his probation office

and his accountant . . . regarding moneys owed or earned, and he had it cleared,”

and felt that he was “perfectly safe.” 

      The government asked Delmonaco to read from the transcript of Brown’s

2004 deposition in a civil matter. 

Smargon’s objection that the

deposition transcript was “irrelevant, immaterial” was overruled. 

Delmonaco read from the deposition in which Brown explained that he had been

convicted of bank fraud because he had “filled out a credit application for

[Delmonaco] falsifying information” to assist her in obtaining a mortgage on

property that they were purchasing together. 

He referred to her as his

“ex-mortgage broker,” and admitted that her income was misrepresented. 

When asked about the truth of these statements, Delmonaco responded



                                          14
that she had not been Brown’s mortgage broker and that Brown had not disclosed

that he had falsified W-2 forms. 

      Just after Guthrie, Brown’s probation officer, began testifying, Smargon

renewed his objection to the “entire line of questioning” and, specifically, to the

areas discussed in the motion in limine. R10 at 1212. The district judge advised

that he should object if the government ask any questions that involved those areas.

government moved for the admission of a document in which Brown

requested permission to travel outside of the United States, Smargon objected and

renewed his “continuing objection on this entire line of questioning.” 

He stated that his objection to the evidence was that it was “irrelevant, immaterial,

prejudic[ial], outside the scope of these charges.” 

The objection

was overruled. 

Guthrie explained that Brown did not check with her

or show her the sales contracts for mortgages that he was transacting, but that she

learned about them by checking the public records. 

She stated that she

had neither approved nor disapproved any real estate purchases for Brown. 

Guthrie testified that, despite her instructions and his agreement to do so,

Brown failed to provide her with required documentation or itineraries for some of

his travel or with documentation of some of his bank accounts and financial

transactions. R10 at 1214, 1216-18, 1220; R11 at 1234-37, 1241, 1243-48, 1288-



                                          15
95, 1298. Brown also agreed to file his taxes for the tax years 1998 through 2003

and confirmed to her that he had done so when he had not. R11 at 1250, 1253-54,

1264-65.

      On the second day of trial, Smargon advised the district court that he was

having “bad pains in [his] left leg,” was very uncomfortable, and was awaiting a

phone call from his surgeon. R6 at 269-70. He explained that he had surgery

about three months prior and had been fine until the weekend before the trial. 

He said that he experienced “bad pains in his leg” from noon through the

evening on the first day of trial but was doing fine on the second day. 

70. On the third day of trial, he advised the district judge that he had been fine on

the second day “until 2:30 [P.M.] and then [the pain] was really severe last night.”

R7 at 532. He explained that he had talked to the doctor, been prescribed steroids,

and was “fine.” 

advised the district judge that he had received computerized

discovery the day before and a folder of discovery that morning that he had not yet

read. 

He commented that, because he had received discovery during

the two weeks before trial, it had been “very difficult” to prepare for trial and to

read all of the discovery. 

government responded that it was

providing the discovery as soon as it was received, Smargon replied that the



                                           16
disclosure at such a late date was “outrageous.” 

He stated that he did

not have the two to four hours that it would take to review the review the

discovery, and additional time to review it with Brown. 

When the

district court adjourned for lunch, Smargon asked if the courtroom could be locked

so that he and Brown could review some of the documentation. 

Smargon explained that such review was a “nightmare” due to Brown’s detention

and the limitations placed on Smargon during visitations.8 

district

court’s request for accommodations, Smargon and Brown were allowed to confer

for thirty minutes in the courtroom. 

       On the fourth day of trial, Smargon notified the district court that Brown

desired to assist him in questioning the government’s witnesses. R9 at 846. He

explained that they were “not see[ing] eye to eye on how to question the[]

witnesses” and that he had explained to Brown that it would be the district court’s

decision as to whether Brown could participate. 

Brown stated that

he “understood every document” and that Smargon had been unable to review the

documents because of his back surgery and other commitments. 

He

explained that he understood that he needed legal advice but that he felt that he



       8
           Smargon explained that Brown was unable to see the documents that Smargon was
referencing in their discussions because Smargon was “not allowed to bring paperwork into the
[jail visitation] room.” R7 at 649.

                                              17
could “get to the information” in the documents. 

court responded

that Brown was “represented by counsel” and that both he and Smargon could not

question the witnesses. 

The district court explained:

      [E]ither you represent yourself or you have counsel. . . . I’m not going
      to permit you both to question witnesses. If you want to represent
      yourself, that may not be the wisest decision, but if you want to I need
      to do an inquiry and determine whether you’re capable of doing it,
      because you have a right to do that if you want to.
             On the other hand, if you’re represented by counsel you need to
      work with your lawyer and your lawyer’s got to represent you. So
      those are really the two choices. You can try to communicate with
      him. . . . it’s natural that some disagreements might come up from
      time to time. He does have the legal knowledge sometimes to make
      judgments in a different way than you’re likely to.
      ...
             If you want to do it, decide – I’ll conduct the inquiry and we’ll
      go that route.

district judge subsequently asked what Brown wanted to do, Brown

responded that he would “leave it alone.” 

Later, the district judge

commented that he wanted “to make sure I give your inquiry or – the time it

deserves because as you point out, it is significant. This issue of counsel, I want to

make sure I’ve fully covered this with you.” 

The district judge then

explained that the issue had been covered in Faretta v. California, 

, 

(1975), in which the Supreme Court “decided that people basically

have a right to represent themselves.” 

judge then quoted Faretta:



                                          18
              ‘It is undeniable that in most criminal prosecutions defendants
      could better defend with counsel’s guidance than by their own
      unskilled efforts. But where the defendant will not voluntarily accept
      representation by counsel, the potential advantage of a lawyer’s
      training and experience can be realized, if at all, only imperfectly. To
      force a lawyer on a defendant can only lead him to believe that the
      law contrives against him.
              Moreover, it is not inconceivable that in some rare instances[,]
      the defendant might[] in fact[] present his case more effectively by
      conducting his own defense. Personal liberties are not rooted in the
      law of averages. The right to defend is personal. The defendant and
      not his lawyer or the State[,] will bear the personal consequences of a
      conviction. It is the defendant, therefore, who must be free personally
      to decide whether in his particular case counsel is to his advantage.
      And although he may conduct his own defense[] ultimately to his own
      detriment, his choice must be honored out of respect for the
      individual[,] which is the life blood of the law.’
              The Court went on to say, ‘When an accused manages his own
      defense, he relinquishes, as a purely factual matter, many of the
      traditional benefits associated with the right to counsel. For this
      reason[,] in order to represent himself, the accused must knowingly
      and intelligently forego those relinquished benefits. Although a
      defendant need not himself have the skill and experience of a lawyer
      in order to competently and intelligently choose self representation, he
      should be made aware of the dangers and disadvantages of self[-]
      representation[,] so that the record will establish that he knows what
      he is doing and his choice is made with eyes open.’
              So basically the Court says you can do it, but places some duty
      on trial judges to make sure somebody does it knowingly and
      intelligently.

(quoting 

, 95 S. Ct. at 2540-41 (citations

omitted)). The district judge then referenced the Faretta dissents for “reasons for

the pitfalls” of self-representation. 

He explained that they believed that,

because defendants were “better off . . . to have lawyers”, “someone could be


                                          19
required to accept representation because otherwise they were basically

committing suicide.” 

He then again quoted from Faretta:

             ‘The fact . . . is that in all but an extraordinarily small number
      of cases[] an accused will lose whatever defense he may have if he
      undertakes to conduct the trial himself.’ . . .
             ‘Even the intelligent and educated layman has small and
      sometimes no skill in the science of law. If charged with a crime, he
      is incapable, generally, of determining for himself whether the
      indictment is good or bad. He is unfamiliar with the rules of evidence.
      Left without the aid of counsel[] he may be put on trial without a
      proper charge[,] and convicted upon incompetent evidence, or
      evidence irrelevant to the issue or otherwise inadmissable.
             []He lacks both the skill and knowledge adequately to prepare
      his defense, even though he may have a perfect one. He requires the
      guiding hand of counsel at every step in the proceedings against him.
      Without it, though he may not be guilty, he faces the danger of
      conviction because he does not know how to establish his innocence.’
      ...
             ‘If there is any truth to the old proverb that one who is his own
      lawyer has a fool for a client, the Court . . . now bestows a
      constitutional right on one to make a fool of himself.’

(quoting 

, 

, 2550

(internal citations omitted)). The district judge stated that he wanted to insure that

Brown knew the pitfalls and that he had a right to represent himself and needed to

“figure it out.” 

He noted that Brown’s choices were to (1) continue

with Smargon’s representation and questioning of the witnesses with Brown

consulting and assisting Smargon in crafting questions or (2) to represent himself.

judge advised that, if Brown chose to represent himself, he would



                                          20
“direct” Smargon to stay to advise and help Brown, but that Brown would “be in

charge.” 

asked if he would be permitted to recall witnesses if he

took over his defense. 

The district judge replied that he could call

witnesses who were “available” and could be present “with reasonable notice” and

could obtain advice from counsel as to how to accomplish that. 

fifth day of trial, Smargon advised the district court that during the

following week he would be receiving an epidural for pain relief because, although

he was doing fine during the morning, the pain was starting about 3-4:00 P.M. and

continuing through the evening. R10 at 1028-29. He explained that he could be in

court by 10:00 A.M. if all went well. 

The district court commented

that it would “accommodate [Smargon’s] back problem,” and that it would explain

the problem to the jury because Smargon had “been standing up some” so that they

did not think he was “just roaming around.” 

Before the jury was

dismissed that day, the district judge advised the jury that trial would start at 10:00

A.M. on the next trial day because Smargon was “having some back problems”

and that they may have noticed him “standing a couple of times.” 

      Before trial began on the next day, Smargon advised the district court that

Brown had not yet decided to continue with Smargon’s representation or to

represent himself and was continuing to think about it. R11 at 1317. He explained



                                           21
that Brown was directing him to do things that Smargon did not want to do or put

his name on. 

Smargon explained that Brown wanted to recall seven

witnesses who had been called on direct and call other witnesses who had not yet

been called, all of whom Smargon would not call because the government could

then cross-examine them and “hammer [Brown] even worse than they already

have.” 

He also opined that one of the other witnesses was “clearly

irrelevant” and he would not feel comfortable putting on two other witnesses “at

this point because of the nature of their evidence.” 

that he was “very

uncomfortable” signing subpoenas for witnesses that he did not intend to use. 

district court advised Smargon and Brown to decide what steps they were

going to take, Brown stated that “at some point”, he would:

      take over the defense, that’s for sure. No doubt about it. I know each
      of these witnesses. I know each one of these documents. I know what
      signatures are forged. . . .
              . . . Now that I have had time to go over [the 25 boxes of
      documentary evidence], I know that I can impeach every one of these
      witnesses.
              ...
              Without a doubt, I will take over my defense once it starts.
      After I take the – what I’m teetering on now is whether I go on the
      stand and Mr. Smargon question[s] me or whether I put myself on the
      stand. Either way, I’m taking – I don’t have a choice. In a case like
      this, I’ve got to take the stand in order to prove my innocence so I’m
      taking the stand. Whether I do that on my own or have Mr. Smargon
      do that first, at whatever point, the point that I’m off that stand, I am
      then taking over the defense.
      ...


                                         22
      I said it from day one or from our last conversation that I want to do
      this. I know that I – if I lose and go to jail now – I’m going to jail as it
      is right now period. There is no doubt about it. If I take over my own
      case and I still go to jail, what have I lost?

      When the district court requested that Brown clarify whether he would

“definitely” represent himself, Brown responded that he was “taking over [his]

own case,” and wanted to start after the government finished its case. 

23. The district court then queried Brown on his education, mental health, and

capability to “assume the duties of self-representation.” 

Brown

answered that he had “[f]inished high school,” had no history of mental illness, and

would be able to introduce evidence and question witnesses with assistance from

Smargon. 

The district court explained that Brown would be

responsible for his own testimony and for making a final argument. 

When the district court observed that Brown would not be able to file an

ineffective assistance of counsel claim, Brown responded that he did not believe

they would “get to that point” and that Smargon had not “done a bad job” but did

not know the 25 boxes of documentary evidence. 

        Following the

lunch recess, Smargon expressed his frustration about not being able to meet with

Brown to review the 23 boxes of discovery. 

He explained that Brown

was unable to review the documents because Smargon was unable to carry the


                                           23
discovery boxes due to his back and Brown’s detention prevented his review of the

documents. 

He stated that “[t]he only time that Mr. Brown has a

chance to look at the boxes is when he is in the courtroom . . . while the evidence is

going on, and obviously, he needs to talk to me.” 

      Before Brown took over his defense, Smargon advised the district court that

he needed time to help Brown prepare but he did not want to do it that day because

he needed to go home because he was “very, very tired.” R12 at 1732. He said

that he “really d[id not] feel good.” 

      Just before the government’s last witness, and outside the presence of the

jury, the parties discussed how Brown’s case would proceed. R14 at 2018-21.

Smargon explained that Brown would take over after the government rested. 

The government asked whether the district court would “be putting anything

additional on the record – the [g]overnment is concerned about making sure we’re

clear on the record. . . . the [district c]ourt has gone through extensive colloquy.”

court judge responded that it had covered Brown’s education and

mental status, “observed [Brown] during the trial being quite attentive and writing

many notes to his lawyer,” and commented that “while he doesn’t have legal

training, [Brown is] a bright guy who is – while I’ve advised him in my judgment




                                           24
it’s a bad decision, I think he’s able to do it under the case law.”9 

district court asked whether there was “any additional inquiry” needed, the

government asked that the district court include the inquiry in the record and that it

not be sealed but neither the government nor Smargon made any additional

suggestions regarding the inquiry. 

The district court judge

reminded the parties that Smargon would be available to advise Brown, and Brown

clarified that he understood that, once he took over, there would be no “flip-

flopping” and that he would be responsible for the closing. 

       At the conclusion of the government’s case, the district court again inquired

as to whether Brown was “certain” that he wished to take over his defense, and

Brown responded “I’m certain.” R15 at 2162-63. The district court reminded

Brown that he would be held to the same rules as a lawyer, that Smargon would

stay to “advise” Brown, and that Brown would be responsible for questioning the

witnesses and handling any objections. 

With the government’s

agreement, the district court explained to Brown that his testimony would be as a

narrative direct. 

The district court judge then advised the jury that

Brown had chosen to represent himself, and addressed the Faretta requirements and


       9
           At that point, witnesses had testified as to Brown’s familiarity with court proceedings.
Brown had testified once before a federal grand jury and three times during a federal criminal
trial, had been prosecuted in federal court, had been the defendant in a paternity suit, and had
filed at least one civil lawsuit. R6 at 291-92, 363-67; R7 at 730-32; R10 at 1210-11.

                                                 25
their responsibilities toward Brown in his various roles.10 

Specifically, the district judge advised the jury that Brown had chosen to avail

        10
           The district court advised the jury as follows:
                Mr. Brown has advised that he wishes to assume handling of his defense.
       In other words, he intends to represent himself from this point forward. And he
       has the right to do that. I’ve advised him the risk to that course of action. But he,
       knowing the risk, wants to go forward, and the Supreme Court has ruled that he
       has that right.
                What the Court said . . . it is undeniable that in most criminal prosecutions
       defendants could better defend with counsel’s guidance than by their own
       unskilled efforts. But the Court goes on to say, it is not inconceivable that in
       some rare instances the defendant might in fact present his case more effectively
       by conducting his own defense. Personal liberties are not rooted in the law of
       averages. The right to defend is personal. The defendant and not his lawyer or
       the State will be bear the personal consequences of the conviction. It is the
       defendant therefore who must be free personally to decide whether in his
       particular case counsel is to his advantage.
                And although he may conduct his own defense ultimately to his own
       detriment, his choice must be honored out of that respect for the individual, which
       is the life blood of the law.
                Now, I’ve asked Mr. Smargon to stay so he is available to Mr. Brown for
       advice but he won’t be handling the defense. Mr. Brown will be. And so that
       presents some issues for you and I because it’s important for both of us to not use
       sympathy and prejudice in deciding the case. So we’ve got to hold the
       Government and the defendant to the same rules. I can’t lean over backwards to
       help him. I can’t give him advice on how to do it. I’ve got to apply the same
       rules to both.
                In doing that I’ll try to explain the basis for it, to the degree I can. But you
       also need to make sure you separate his role as representing himself from his role
       as a witness.
                He’s told me he is likely to testify in this case. As I told you at the
       beginning, what the lawyers say is not evidence. It’s only the evidence that
       comes in from witnesses and documents that can be considered. So when Mr.
       Brown is asking questions or presenting argument, he’s acting as a lawyer.
       That’s not evidence and can’t be considered by you as evidence. If Mr. Brown
       takes the stand and is under oath and testifies, that’s evidence. And that’s the
       only thing you can consider.
                So you’ll need to focus a little bit more on that dichotomy of rules than we
       usually do when we have a lawyer representing a defendant.
R15 at 2169-71.



                                                  26
himself of his legal right to represent himself and was doing so despite “knowing

the risk” that he would “bear the personal consequences of the conviction and

might “conduct his own defense ultimately to his own detriment.” R15 at 2169-70.

The court also advised the jury that Smargon would remain to assist Brown, and

that it should be aware of Brown’s role as counsel and as a potential witness. R15

at 2170-71. No objections were made to the district court’s jury instruction.

      Brown then recalled and examined four government witnesses: Delmonaco,

mortgage brokers Johnson and Woodson, and accountant Forman. R15 at 2171;

R16 at 2398, 2522; R18 at 2623. Forman testified that Brown was concerned

about filing returns and paying his unpaid taxes. R18 at 2628, 2629, 2632-34,

2638-41, 2645-54, 2656-66. Forman also explained that he advised Brown there

were no criminal consequences for non-payment of taxes, that Brown believed he

should not file his taxes until he had the money to pay them, and that Brown

believed he had no duty to file income tax returns for certain years because of his

financial losses. 

2632-34, 2638-41, 2653-54, 2664.

      Brown took the stand and testified. He explained that the misstatements in

the loan applications were inadvertent and immaterial, and that the mortgage

brokers had authored the misrepresentations and had forged his signature. R18 at

2813-15, 2830-31, 2833-34, 2841, 2843-44; R19 at 2883, 2912-13, 2916-17, 2919,



                                          27
2924-25, 2927-32, 2935. He contrasted the documents from his earlier fraud

convictions with the documents for the charged offenses, and asserted that he

would not have authored such obvious deceptions. R15 at 2195-97, 2211-12. He

alleged that his earned income was dwarfed by business losses, and that he did not

believe that he needed to file tax returns. R18 at 2794-96, 2811-12, 2817-22, 2827,

2831-32, 2842-43, 2846-47.

       In explaining closing arguments to the jury, the district court observed that

Brown had “done an admirable job in trying to deal with the [procedural and

evidentiary] rules.” R20 at 3075. The government addressed Brown’s prior

conviction during its rebuttal closing argument and focused on his credibility. It

stated that:

              [Brown has] been convicted before of doing the exact same
       thing, mortgage fraud. But when it comes to this case, [he claims] it
       wasn’t me.
       ...
              He knows how to get properties when you don’t have any
       income, when you don’t have a real job. He did it in 2000 and 2001,
       and he did it again in this case.
       ...
              When you ask a liar a question, what kind of an answer do you
       think you’re going to get? And we all know Mr. Brown’s a liar. He’s
       been convicted of it. We all know he lied to his probation officer. We
       all know now he went to jail for it. . . .
              From what you’ve seen here, he can’t make accurate statement
       on anything. Not even his own community service.
              Now, Mr. Brown has indicated over and over again that he
       didn’t have the intent to defraud anybody in this case


                                          28
        ...
       [but he] intentionally tried to mislead you.
       ...
              [T]he evidence in this case clearly shows that [Brown] is a con
       man. He is a liar. He is a convicted liar. He’s lied to you on
       numerous occasions. He committed the acts in this case and the only
       verdict . . . that’s just in this case is guilty.

3197, 3201. The district court instructed the jury on good faith

reliance on an accountant. R19 at 3059; R20 at 3223-24.

       The jury returned a verdict of guilty on all 18 counts. R2-187; R20 at 3235-

38. The district court then asked Brown whether he wished to proceed with

sentencing pro se or represented by Smargon. R20 at 3239. Brown responded that

he wanted Smargon to represent him. 

After Smargon observed that

Brown “[o]bviously, . . . was dissatisfied” with his representation, the district court

commented that Brown had “never expressed dissatisfaction with [Smargon’s]

representation . . . [b]ut . . . chose to step forward for reasons he stated” and that

Smargon would be re-appointed as counsel. 

       The probation officer recommended a guideline range of 292-365 months of

imprisonment, an offense level of 38, and a criminal history category of III;

Brown, through attorney Arthur Wallace (“Wallace”), objected in writing and at

sentencing.11 R2-223: R21 at 2, 6-10, 16-29, 42-47, 50-53, 54-60, 62, 65, 67-79,


       11
        Following the trial, Smargon requested a hearing regarding counsel’s status and
Brown moved pro se to remove Smargon and for the appointment of substitute counsel. R2-190,

                                            29
81. At sentencing, the district court stated that it had reviewed the presentence

investigation report (“PSI”), the PSI addenda, Brown’s objections, the

government’s response to Brown’s objections, an affidavit, and some letters,

including one from a juror recommending that Brown “receive a lengthy sentence.”

The district court also commented that the juror’s letter and

recommendation was not isolated and that

       the entire jury expressed their view . . . after the trial that they . . .
       thought . . . Brown deserved a harsh sentence and – they were not
       impressed with his presentation at trial. Particularly the fact that . . .
       he was very good at fraud, and that . . . some aspects of this fraud
       were beneath him. That if he was doing it, it would be a lot better
       fraud was essentially the argument he presented to the jury.
       ...
              I advised him against doing it. He chose to do it. He actually
       did the presentation pretty well, but the point was what he was saying
       was not helpful to his case. And he chose not to listen to his lawyer.

The district court overruled eight of Brown’s objections, but granted the

objections as to the reduction of the criminal history points. 

49-50, 54,

59-60, 65-66, 73, 81. The court found that the crimes were serious, there was a

need to protect the public from Brown’s behavior, he committed the crimes while



192. The district court granted the motions and appointed substitute counsel for Brown. 

Due to a conflict of interest with the first substitute counsel, attorney Arthur Wallace was
later appointed to represent Brown. 

198, 199. In the meantime, Brown moved pro se
for a new trial, filed a notice of governmental misconduct, and requested dismissal of the
proceedings. 

202. The district court denied the motion for new trial without
prejudice. 

Brown’s substitute appointed counsel filed a renewed motion for new trial
and a motion for mistrial which the district court denied. 

231; R21 at 5.

                                               30
on supervised release for another similar federal offense, Brown showed no

remorse, did show arrogance, and victimized his family and friends. 

Brown was subsequently sentenced to imprisonment terms of 240 months on

Counts 1-2, 12 months on Counts 13-17, and 60 months on Count 18 to run

concurrently; supervised release for three years on Counts 1-12 and 18, and one

year on Counts 13-17 to run concurrently; assessed $1,325.00; and ordered to pay

$2,079,867.83 in restitution.12 R2 at 235; R21 at 93-95.

      Brown filed a notice of appeal and a corrected notice of appeal. R2-236,

237. Because the corrected notice of appeal was late, we remanded for the limited

purpose of a determination of excusable neglect or good cause. R2-259 at 2.

Brown’s motion for extension of time to appeal was granted. R2-261, 262. On

appeal, Wallace was permitted to withdraw; Brown is currently represented by

retained counsel Michael Metz.

                                     II. DISCUSSION

1. Brown’s Self-representation

      Brown argues that the district court should not have permitted him to

represent himself because doing so after the government had rested its complex

case was untimely. He also maintains that the district court failed to conduct an



      12
           Brown was remanded into custody and is currently incarcerated. R2-235 at 2.

                                              31
adequate Faretta inquiry; that, due to his attorney’s medical issues, the waiver of

counsel was not intelligently, knowingly, and voluntarily made; and that it was

clear that Brown’s proposed defense would not succeed. He contends that the

district court failed to inquire about his concerns regarding Smargon’s medical

problems and how it affected his performance and advice regarding self-

representation.

      We review the mixed question of law and fact of whether a defendant

voluntarily and knowingly waived his Sixth Amendment right to counsel de novo;

the government bears burden of proving the validity of the waiver. United States

v. Garey, 

, 1268 (11th Cir. 2008) (en banc). The importance of the

defendant’s intelligent, knowing, and voluntary waiver removes the review from a

harmless error analysis. See United States v. Fant, 

, 410 (11th Cir.

1989) (per curiam).

      The right of a criminal defendant “to be represented by counsel is among the

most fundamental of rights” because “lawyers in criminal courts are necessities,

not luxuries.” Penson v. Ohio, 

, 84, 

, 352 (1988)

(quotation marks and citation omitted). A criminal defendant does not, however,

have a right to a specific lawyer or the right to demand a different lawyer absent

good cause. 

. Good cause for the appointment of



                                          32
substitute counsel requires the showing of a fundamental problem which could lead

to an apparently unjust verdict. 

fundamental problem could be shown

by a complete breakdown in communication between the defendant and his

attorney, a conflict of interest, or an irreconcilable conflict. 

a

showing, a defendant who lacks the means to hire a private attorney must either

accept the appointed attorney or represent himself. 

      It is through criminal counsel that a defendant’s rights are protected and it

“affects his ability to assert any other rights he may have.” 

,

109 S. Ct. at 352 (quotation marks and citation omitted). Because of the

importance of counsel, a defendant cannot waive his right to counsel and assert his

right to represent himself without “knowingly and intelligently for[egoing] those

relinquished benefits.” 

, 95 S. Ct. at 2541 (quotation marks

and citation omitted). “[I]n the context of [such a] waiver, ‘knowing’ is

synonymous with ‘intelligent’ and ‘voluntary’ is synonymous with ‘competent’

and ‘intentional.’” Jones v. Walker, 

, 1287 n.4 (11th Cir. 2008) (en

banc). The defendant must be informed “of the dangers and disadvantages of self-

representation, so that the record will establish that he knows what he is doing and

his choice is made with eyes open.” 

, 95 S. Ct. at 2541

(quotation marks and citation omitted). The trial court must conduct a searching,



                                           33
and not just summary, inquiry to establish the defendant’s understanding. 

. Further, although the “ideal” setting for the inquiry is during a

pretrial hearing, it is not required, United States v. Cash, 

, 1088 (11th

Cir. 1995), and, in rare cases, a defendant’s actions or statements in the record may

provide sufficient evidence to establish a knowing and intelligent waiver of

counsel and election to proceed pro se, 

. See also 

(observing that a defendant’s voluntary waiver and knowledge

may be demonstrated by an affirmatively invocation or the defendant’s conduct in

rejecting all other available options and responses to the district court’s warnings

and questions).

       “The closer to trial an accused waiver of the right to counsel is, the more

rigorous, searching and formal the questioning of the trial judge should be.”13

(quotation marks and citation omitted). The ultimate test is

not, however, based on the district court’s advice or questioning, but is based on

the defendant’s understanding of the risks of self-representation and free choice to



       13
           Once “meaningful trial proceedings have commenced,” “the defendant forfeits the
unqualified right to proceed pro se” and a district court may deny such a request as untimely.
United States v. Young, 

, 1354 (11th Cir. 2002) (quotation marks and citation
omitted). Further, the right to self-representation is not absolute and may be denied if the
defendant is incapable of maintaining the dignity of the courtroom, complying with the relevant
rules, procedures, and laws, or engaging in obstructive or serious misconduct, and stand-by
counsel may be appointed to assist a defendant, even over the defendant’s objection. See
Indiana v. Edwards, 554 U.S. , , 

, 2384 (2008) (citations omitted).

                                               34
face those risks. Strozier v. Newsome, 

, 1105 (11th Cir. 1991). The

information that the defendant must possess to make an intelligent waiver will be

case-specific facts and circumstances. Iowa v. Tovar, 

, 88, 92, 

, 1387, 1392 (2004).

       The inquiry must include questions directed to the defendant that ensure his

intelligent, knowing, and voluntary waiver of his right. 

,

95 S. Ct. at 2541. It may include questions regarding his age; educational

background; physical and mental health; his legal experience, including that in any

criminal trials; his contact with lawyers prior to the trial; his knowledge of the

nature of the charges, and possible defenses and penalties; his understanding of the

rules of courtroom decorum, evidence, and procedure; whether the waiver resulted

from coercion or mistreatment; and whether the defendant was trying to

manipulate the events of the trial.14 Id.; Fitzpatrick v. Wainwright, 

,

1065-67 (11th Cir. 1986). Although a district court’s warning of the dangers of

self-representation and recommendation against it is not enough, it is not necessary

that all of the factors for determining whether the defendant knowingly and

intelligently waived his right point toward waiver. 

Strozier, 

          If a defendant wishes to proceed without counsel, it is recommended that a district
court ask a defendant fifteen questions which include not only the areas mentioned above, but
also whether he has studied law, previously represented himself in a criminal matter, has an
understanding of the application of the Sentencing Guidelines, and is voluntarily waiving
counsel. Fed. Jud. Ctr., Benchbook for U.S. District Judges §1.02 (4th. ed.) (2000).

                                               35
at1105.

      Brown’s initial interest in representing himself and in waiving his right to

counsel was not expressed to the district court pretrial or even before the jury was

empaneled but only on the fourth day of trial, during the government’s case. R9 at

847. When it initially surfaced, it was based on Brown’s desire to assist his

attorney in the questioning of the government’s witnesses and his belief that he had

a better grasp on the documentary evidence than Smargon. R9 at 846-47. At that

time, Brown made it clear that it was not an impulsive decision but that he had

thought about it for some time and had discussed it with Smargon. 

When the issue of Brown’s self-representation next arose, it was based again on his

disagreement with his attorney’s defense strategy and his belief that he could

“impeach every one of these witnesses” because he knew the witnesses and the

documents, and which signatures were forged. R11 at 1317-18, 1320. Other than

Brown’s comment that Smargon had been unable to review all of the documents

because of his back surgery and other commitments, Brown expressed no concern

about Smargon’s health or his compulsion to take over his defense because of

Smargon’s health or its impact on Smargon’s representation of him.

      The district court did not pressure Brown for a quick and irrevocable

decision, but read much of the warning language of Faretta to Brown, advised



                                          36
Brown of the perils of self-representation on two separate days, and questioned

him regarding his education and mental health. Brown responded that he was a

high school graduate and neither suffered from nor had been hospitalized for

mental illness. Brown’s awareness of the penalty of at least one of the offenses

was indicated by his comment that he was facing “about 20 years.” R9 at 847.

The district court advised Brown of the fact that “a lot of other people are also

committing fraud” was not the best defense. 

      The district court observed Brown during the trial as “quite attentive and

writing many notes to his lawyer,” and, although acknowledging that Brown had

no legal training, as “bright,” and had heard testimony of his prior legal

experiences. R14 at 2020. The district court permitted Brown to represent himself

but appointed Smargon as stand-by counsel to advise Brown on legal procedural

and substantive matters. The district court heard from Smargon that Brown wished

to question the government’s witnesses because Smargon and Brown did not agree

on the questioning and Brown was directing Smargon to act in ways that Smargon

did not want to do. R9 at 846; R11 at 1317. The district court learned from

Brown that he “understood” the documentary evidence that Smargon had been

unable to review and felt that he could “impeach every one of these witnesses.” R9

at 847; R11 at 1320.



                                          37
      Further, Brown’s trial performance supported his waiver. He effectively

summoned and questioned witnesses in support of his theory of defense. He

questioned them coherently and sharply, and elicited few objections. He delivered

an effective summation of the evidence in support of his defense.

      Although Smargon advised the district court of his back pain and the

treatment for it, he delivered an opening statement setting forth the initial theory of

defense, comprehensively and effectively cross-examined the government

witnesses, and demonstrated a thorough grasp of the complex documentary

evidence. Brown advised the district court that he did not believe Smargon

performed ineffectively and, later, not only complimented Smargon on his work

but also requested Smargon’s representation at sentencing. Smargon, as stand-by

counsel, continued to work with Brown and Brown continued to seek his advice.

      Brown’s decision to represent himself was not based on his disillusionment

with Smargon’s representation but with his disagreement with him over strategy.

Smargon did not wish to recall government witnesses; Brown wanted them

recalled in order to confront them with misrepresentations on the loan documents.

Brown believed that, as an actual participant in the events and as a signatory to

many of the documents, he had a unique and better understanding of the

transactions and the documents.



                                           38
      The district court did not abuse its discretion in accepting Brown’s waiver of

his right to counsel and in permitting him to represent himself.

2. District Court Comments regarding Self-Representation

      Brown contends that the district court clearly erred by advising the jury that

it had warned Brown against self-representation and by implying that the defense

was not credible.

      Because Brown’s counsel failed to object, we review a district court’s jury

instructions regarding his right to self-representation for plain error. See United

States v. Guerrero, 

, 193 (11th Cir. 1991); United States v. Olano, 

, 732, 

, 1776 (1993). Plain error occurs when there is (1)

an error, (2) that is plain, (3) that affects substantial rights and (4) which seriously

affects the judicial proceeding’s fairness, integrity or public reputation. 

, 113 S. Ct. at 1776. Clear comments regarding a defendant’s decision

to remain silent may constitute plain error that cannot be cured by a cautionary

instruction. See United States v. Edwards, 

, 1154 (5th Cir. 1978)

(per curiam). We will not reverse, however, unless our review of the jury

instructions in their entirety, the presented evidence, and counsel’s arguments

reveal that the jury was misled and “manifest injustice” resulted. Autrey v. United

States, 

, 999 (11th Cir. 1989) (Clark, J., concurring in part and



                                            39
dissenting in part). Further, where there is no explicit language in a rule or statute,

or precedent from the Supreme Court or this court resolving an issue, there is no

plain error. United States v. Lejarde-Rada, 

, 1291 (11th Cir. 2003)

(per curiam).

      A district judge is granted “wide discretion in managing the proceedings”

within his courtroom and may “comment on the evidence,” elicit or clarify facts,

and interrupt counsel to maintain the pace of a trial. United States v. Day, 

, 1297 (11th Cir. 2005) (quotation marks and citation omitted). That

discretion, however, does not include comments on the defendant’s silence or jury

instructions that such silence may be evidence of guilt. Griffin v. California, 

, 615, 

, 1233 (1965). Further, the district judge’s comments

on the evidence must be made “with great care” because “juries are extremely

sensitive to every word and intimation given by the judge.” United States v.

Jenkins, 

, 1083 (11th Cir. 1990) (brackets, quotation marks, and

citation omitted). “What the jury may infer, given no help from the court, is one

thing. What it may infer [from a district court’s comments] is quite another.”

Davis v. United States, 

, 441 (5th Cir. 1966).

      Jury instructions are provided to give the jury “information to make the trial

more meaningful” and “may be given, as the need arises, at appropriate points



                                           40
during the trial.” Fed. Jud. Ctr., Benchbook for U.S. District Judges § 2.07 (4 th ed.

2000). Specifically, during a trial, when a defendant discharges his counsel and

decides to proceed pro se, a district court may instruct the jury regarding this

change in personnel. Fed. Jud. Ctr., Pattern Crim. Jury Instructions § 6 (1987).15

       The district court’s instruction provided the jury with such an instruction.16


       15
             The suggested jury instruction reads:
                   Even though ___ was at first represented by a lawyer, he has decided to
          continue this trial representing himself and not use the services of a lawyer. He
          has a perfect right to do that. His decision has no bearing on whether he is guilty
          or not guilty, and it should have no effect on your consideration of the case.
          Fed. Jud. Ctr., Pattern Crim. Jury Instructions § 6. See also Third Cir., Model Crim. Jury
          Instructions §§ 1.18 (“Pro Se Defendant”) and 2.35 (“Discharge of Defense Counsel
          During Trial”) (2010).
          The Third Circuit’s instructions address not only the defendant’s decision to proceed pro
se and directs the jury to treat the defendant’s “words spoken . . . while functioning as counsel . .
. not . . . as evidence,” but also the appointment of standby counsel. 

instructions read:
                   Even though (name of defendant) was represented by a lawyer when this
          trial began, (he) . . . has decided to continue the trial representing (himself) and
          not to use the services of a lawyer. (He) . . . has a constitutional right to do that.
          (His) . . . decision has no bearing on whether (he) . . . is guilty or not guilty, and it
          must not affect your consideration of the case.
                   Because (name of defendant) has decided to act as (his) . . . own lawyer,
          you will hear (him) . . . speak at various times during the trial. (He) . . . may
          make . . . (a) closing argument. (He) . . . may ask question of witnesses, make
          objections, and argue to the court. I want to remind you that when (name of
          defendant) speaks in these parts of the trial (he) . . . is acting as a lawyer in the
          case, and (his) . . . words are not evidence. The only evidence in the case is the
          testimony of witnesses under oath exhibits admitted into evidence.

2.35 (italics omitted). The section addressing pro se representation provides similar
language. 

1.18. Both sections also indicate that they are derived from Eighth Cir. § 2.22
and Fed. Judicial Cntr § 6.
       16
          We have not adopted a pattern jury instruction addressing a defendant’s conduct in
representing himself or in discharging his counsel during a trial, see generally Eleventh Cir.,
Pattern Jury Instructions (Crim. Cases) (2003), and there is no case law setting forth an
appropriate instruction.

                                                 41
It advised them that, after being advised of the risks, Brown had decided to

represent himself for the remainder of the trial, that Smargon would remain as

stand-by counsel, and that they should be mindful of the distinctions between

Brown’s role as counsel and his role as a witness. The instructions paralleled the

instruction in circuits with a pattern instruction on the issue.

      The district court committed no plain error in instructing the jury regarding

Brown’s decision to represent himself.

C. Admission of Evidence Prior Convictions and Bad Acts

      Brown maintains that the district court erred in permitting the government to

introduce evidence of his prior conviction, his probationary status, and his prior

false statements, and in allowing the government to use the evidence in its closing

argument.

      We generally review a district court’s admission of evidence of prior

convictions or bad acts under Federal Rule of Evidence 404(b) for abuse of

discretion, United States v. Ellisor, 

, 1267 (11th Cir. 2008), but

review for plain error if no objection was made in the district court, United States

v. Jernigan, 

, 1280 (11th Cir. 2003).

      Although, generally, a motion in limine is not sufficient and a timely

objection at trial is necessary to preserve an issue for review on appeal, United



                                           42
States v. Gari, 

, 1356 n.2 (11th Cir. 2009), an in limine motion may

preserve the issue “if a good reason exists not to make a timely objection at trial,”

Frederick v. Kirby Tankships, Inc., 

, 1285 (11th Cir. 2000) (citation

omitted); see also Fed. R. Crim. P. 103(a)(1).

       After the government advised that it planned to introduce evidence of

Brown’s prior convictions through the testimony of Delmonaco and Guthrie,

Brown, through Smargon, responded with specific objections and moved in limine

to prevent this testimony. The district court denied Brown’s motion. During the

trial, when Smargon objected to Delmonaco’s testimony regarding Brown’s prior

offenses, the district court overruled that objection and indicted that it was not

necessary to approach the bench to present additional grounds. Smargon made

similar specific and continuing objections before Delmonaco and Guthrie testified

about the prior offenses and Brown’s prior bad acts, and again was overruled.

Because the specific grounds for the objections were presented in the motion in

limine and were understood by all parties when the objections were renewed at

trial, the issue were preserved for review on appeal.

      “Evidence of other crimes, wrongs, or acts is not admissable to prove the

character of a person” or the defendant’s propensity to commit a similar crime.

Fed. R. Evid. 404(b); United States v. Covington, 

, 1341 (11th Cir.



                                          43
2009). With proper notice from the prosecution of the general nature of the

evidence that it plans to introduce, such evidence “‘may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident . . ,’” 

(quoting Fed. R. Evid. 404(b)), and may be admissible if it is “inextricably

intertwined with the evidence regarding the charged offense,” United States v.

Fortenberry, 

, 721 (11th Cir. 1992) (citation omitted). Such intrinsic

or otherwise admissable evidence maybe be excluded, however, “if its probative

value ‘is substantially outweighed by the danger of unfair prejudice.’” 

R. Evid. 403). “‘[U]nfair prejudice’, as to a criminal defendant, speaks to the

capacity of some concededly relevant evidence to lure the factfinder into declaring

guilt on a ground different from proof specific to the offense charged.” Old Chief

v. United States, 

, 180, 

, 650 (1997) (citation omitted).

“[E]vidence of the name or nature of a prior offense generally carries a risk of

unfair prejudice” and that risk is “especially obvious” where the prior conviction

was for a crime similar to the charged offense. 

117 S. Ct. at 652. Unfair

prejudice may be increased when the evidence is the testimony of a parole or

probation officer and courts are cautioned to admit such testimony in limited and

necessary circumstances with appropriate safeguards. United States v. Pierce, 136



                                          

, 775-76 (11th Cir. 1998) (citations omitted). Further, evidence without a

logical nexus to both the extrinsic and charged offenses lacks probative value on the

defendant’s state of mind and demonstrates only “inherently prejudicial” evidence

of a defendant’s bad character. See United States v. Dothard, 

, 503,

505 (11th Cir. 1982). The question, however, is not merely whether the evidence is

prejudicial but whether its probative value is outweighed by this prejudice; the “line

. . . is thin” between permissible and unduly prejudicial evidence. 

(quotation marks and citation omitted). The prejudicial effect of such

evidence may be minimized by a limiting instruction from the district court. 

under Rule 404(b) (1) “must be relevant to an issue other

than the defendant’s character,” (2) the evidentiary act “must be established by

sufficient proof to permit a jury finding that the defendant committed the extrinsic

act,” (3) “the probative value of the evidence must not be substantially outweighed

by its undue prejudice,” and (4) “the evidence must meet the other requirements of

Rule 403." United States v. Matthews, 

, 1310-11 (11th Cir. 2005)

(per curiam) (citation omitted). Further, the evidence must (1) “concern[] the

context, motive, and set-up of the crime and [be] linked in time and circumstances

with the charged crime,” (2) “form[] an integral and natural part of the account of

the crime,” or (3) be “necessary to complete the story of the crime for the jury.”



                                          45


(quotation marks and citation omitted).

      Extrinsic evidence of other similar crimes may be introduced to show that the

charged offense did not result from an accident or mistake, but from intent.

; see United States v. Diaz-Lizaraza, 

,

1225 (11th Cir. 1993). In weighing the probative value against the unfair prejudice,

a court “should consider the differences between the charged and extrinsic offenses,

their temporal remoteness, and the government’s need for the evidence to prove

intent.” 

. We also review the similarity of the

methodologies, including the manner and methods in which the extrinsic and

charged offenses were conducted, for signs of a distinctive modus operandi. United

States v. Clemons, 

, 1509 (11th Cir. 1994).

      At trial, the government introduced the information, judgment, and sentence

from Brown’s 2004 conviction for making false statements on mortgage

applications, testimony describing the actions that led to that conviction, and

Brown’s probationary status at the time of the charged offenses. Delmonaco

testified that she knew of Brown’s prior conviction and that, due to her concerns

about statements made in documents related to one of the charged offenses, Brown

told her that Guthrie and Forman had reviewed the documents. She explained

Brown’s use of nominees in the mortgage applications, the creation of false



                                          46
documents, and arrangements for fraudulent verifications. Guthrie denied

reviewing these documents and testified that Brown had made false statements to

her about filing his income tax returns. The government also introduced Brown’s

grand jury testimony regarding his 2001 income and deposition testimony

concerning his prior conviction.

      The evidence of Brown’s prior conviction for making false statements in

mortgage fraud applications was properly introduced to establish his criminal intent

and to rebut his claim that the misstatements were accidental or merely mistakes.

Guthrie’s testimony regarding the false statements that Brown gave her was

introduced to show Brown’s intent and knowledge of the impropriety of his actions.

See United States v. Smolin, 

, 786 (2nd Cir. 1950) (“[E]xculpatory

statements . . . when shown to be false, are circumstantial evidence of guilty

consciousness and have independent probative force.”).

      Further, any problem with the government’s introduction of the evidence of

Brown’s prior conviction and of his truthfulness, or lack thereof, was mooted when

Brown testified. All of the objected evidence was then available for impeachment

purposes. See Fed. R. Evid. 608(b), 609(a)(1). Brown also discussed his prior

conviction and false statements during his defense. He reviewed the acts leading to

his conviction in his history and in his explanation of how he became involved in



                                          47
real estate transactions and of how he went about financing the transactions. The

district court did not abuse its discretion in admitting this evidence.

D. Substantive Reasonableness of Sentence

      Brown argues that the district court’s imposition of the statutory maximum

sentence was substantively unreasonable in light of the totality of the

circumstances, including the 18 U.S.C. § 3553(a) factors. He contends that the

sentence is inconsistent with the Sentencing Commission’s goals of imposing the

most severe sentences on repeat offenders and for the most severe crimes because

the loss involved in his fraud offense totaled less than $2 million and was caused, in

part, by the housing market crash. He declares that the district court failed to

adequately consider that his offenses were not violent in nature, that he was not a

drug dealer, that he had no history of committing robberies, burglaries, or other

crimes of that nature, and that he had always been a good father to his children.

      In preparing a sentencing recommendation, the probation officer separated

the offenses into two groups: Group One for the fraud counts, (Counts 1-12) and

Group Two for the tax evasion counts (Counts 13-18). With respect to Group One,

Brown was subject to a base offense level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1),

because the offense of conviction has a statutory maximum term of imprisonment

of 20 years. Brown’s base offense level was increased by 16 levels, pursuant to



                                           48
§ 2B1.1(b)(1)(I), because the offense involved a loss of more than $1,000,000 but

not more than $2,500,000; two levels, pursuant to § 2B1.1(b)(2)(A)(i), because the

offense involved 10 or more but less than 50 victims; two levels, pursuant to

§ 2B1.1(b)(9)(C), because the offense involved the use of sophisticated means; and

an additional two levels, pursuant to § 2B1.1(b)(13)(A), because Brown derived

more than $1,000,000 in gross receipts from financial institutions from the offense.

Brown also received a four-level enhancement, pursuant to § 3B1.1(a), because he

was an organizer or leader of the criminal activity; a two-level enhancement,

pursuant to § 3C1.1, for obstruction of justice; and a three-level enhancement,

pursuant to § 3C1.3, because he committed the instant offense while on bond

release. Brown’s adjusted offense level for Group One was 38.

      With respect to Group Two, Brown was subject to a base offense level of 20,

pursuant to § 2T1.1(a)(1)(H), because the tax loss was more than $400,000 but not

more than $1,000,000. Brown received a two-level enhancement, pursuant to

§ 3B1.1(c), because he was an organizer, leader, manager, or supervisor of the

criminal activity; and a three-level enhancement, pursuant to § 3C1.3, for

committing the offense while on bond release. Thus, Brown’s adjusted offense

level for Group Two was 25. Application of § 3D1.4's multiple count adjustment

resulted in a combined adjusted offense level and a total offense level of 38.



                                          49
      Brown received three criminal history points as a result of his prior offense,

and an additional two criminal history points, pursuant to § 4A1.1(d), because he

committed the present offenses while serving a term of supervised release. Based

on his five criminal history points, Brown was placed in criminal history category

III. Brown’s total offense level of 38 combined with criminal history category III

yielded a guideline imprisonment range of 292 to 365 months. Brown was also

subject to statutory maximum penalties of imprisonment terms of 20 years with

respect to Counts 1-12; 1 year with respect to Counts 13-17; and 5 years with

respect to Count 18.

      Prior to sentencing, Brown filed objections to the PSI. First, he objected to

the loss amount set forth in the PSI, asserting that he should have received only a

14-level enhancement, instead of a 16-level enhancement with respect to the fraud

counts, because the loss amount was between $400,000 and $1,000,000. R2-223 at

1. Also with respect to the fraud counts, Brown objected to the enhancements he

received for (1) the involvement of more than ten victims, (2) the use of

sophisticated means, (3) being a supervisor or manager of the offense, (4)

obstruction of justice, and (5) committing the offense while on bond. 

to the tax evasion offenses, Brown objected to the two-level enhancement

he received for his role in the offense and the three-level enhancement for



                                          50
committing the offense while on bond release. 

Brown also argued that he

should not have received any criminal history points for a conviction that was over

10 years old. 

objected to the inclusion of certain prior offenses,

for which he received no criminal history points, arguing that these offenses were

committed by his brother. 

sentencing hearing, the district court noted that it had received a letter

from a juror who believed that Brown “should receive a lengthy sentence.” R21 at

3. The court also commented that the entire jury had informed the court, after trial,

that Brown “deserved a harsh sentence and – they were not impressed with his

presentation at trial,” particularly Brown’s argument that, if he had committed the

fraud, he would have done a better job. 

The court overruled Brown’s

objection to the government’s fraud loss calculation, finding that the government’s

method of calculating the loss was a “conservative methodology.” 

41.

The court also overruled Brown’s objections to the enhancements for (1) the

involvement of ten or more victims, (2) the use of sophisticated means, and (3)

Brown’s role as a supervisor or manager of the offense. 

54, 59. The court

sustained Brown’s objection to the three-level enhancement under § 3C1.3 based on

Brown committing the offenses while on bond release. 

92-93. Brown’s

total offense level was reduced by three levels, to level 35, and his guideline



                                           51
imprisonment range was reduced to 210 to 262 months. 

The court

overruled Brown’s objections to the two-level role enhancement with respect to the

tax evasion counts, and to the one criminal history point that he received for a prior

offense that he committed when he was 17 years old. 

80. Finally, the

court overruled Brown’s objection to the PSI’s inclusion of prior offenses that he

claimed were committed by his brother, because Brown did not receive criminal

history points for these offenses and they did not affect the guideline calculations.

       The court determined that Brown was subject to a total offense level of 35,

criminal history category III, and an advisory guideline range of 210 to 262 months.

recommended that the court sentence Brown to 262 months, at

the top of the guideline range, because Brown had previously committed similar

offenses, and he chose to continue violating the law to support his lifestyle, rather

than obtaining a legitimate job. 

It argued that Brown’s activities caused

Suarez’s loss of his home, Zahlmann’s bankruptcy, and Wilfredo’s felony

conviction. 

It also noted that Brown’s actions were detrimental to the

properties that he owned and the neighborhoods where the properties were located.

The government contended that the court had a responsibility to deter

conduct similar to Brown’s, and maintained that Brown repeatedly lied to banks by



                                           52
misstating his income and liabilities. 

The government observed that

Brown, while on supervised release, failed to comply with Guthrie’s instructions to

file his taxes and lied to her. 

It opined that Brown “got a break” on his

previous fraud convictions by being sentenced to time served. 

government contended that Brown presented an economic danger from which the

court should protect the community by imposing a lengthy prison sentence. 

      Brown argued that a sentence between 70 and 87 months would accomplish

the goals of sentencing and that his offense conduct did not involve weapons, drugs,

or violence. 

He also argued that, during the time of his offense,

“mortgage brokering activity was rampant,” and he simply “made some bad

investments.” 

Brown noted that there was collateral for his loans and that

he used the loan money to purchase the houses he had promised to purchase. 

Brown also argued that a large portion of the losses for which he was

responsible resulted from the decline in the housing market. 

Brown noted

that he had two very young children and was “a very solid father to both of [his]

children.” 

He argued that his “resources would be much better served

doing some time and then getting back on the street,” so that he could take care of

his children and pay his restitution. 

                                            53
      Before imposing the sentence, the district court stated that it had considered

the parties’ arguments, the PSI, and the 18 U.S.C. § 3553(a) sentencing factors. 

the PSI’s findings and guideline calculations, with the exception of the

three-level enhancement for committing the offense while on bond. 

The court found that

              this is a serious crime. There is a need to protect the
              public because of [Brown’s] repeated behavior. I find
              particularly critical the fact that he committed these
              crimes while on supervised release on another, with
              respect to another federal conviction for lying with
              respect to loan documents.

              During trial he showed no remorse and displayed an
              arrogance about his behavior. Mr. Brown also victimized
              family and friends in a particularly adverse fashion.

After the court pronounced Brown’s sentence, Brown renewed his prior

objections. 

      We may review a sentence for procedural or substantive reasonableness.

Gall v. United States, 

, 51, 

, 597 (2007). We review the

substantive reasonableness of a sentence by considering the totality of the

circumstances and, applying an abuse of discretion standard, we reverse only if we

find that the district court has made “a clear error of judgment in weighing the §

3553(a) factors.” United States v. Pugh, 

, 1191 (11th Cir. 2008)

(quotation marks and citation omitted). The party challenging the sentence “bears


                                          54
the burden of establishing that the sentence is unreasonable in the light of both th[e]

record and the factors in section 3553(a).” United States v. Talley, 

,

788 (11th Cir. 2005) (per curiam).

       “[T]he district [court] should . . . consider all of the § 3553(a) factors to

determine whether they support the sentence requested by a party.” 

, 128 S. Ct. at 596. The factors in § 3553(a) that the court must consider

are:

              (1) the nature and circumstances of the offense and the
              history and characteristics of the defendant; (2) the need
              to reflect the seriousness of the offense, to promote
              respect for the law, and to provide just punishment for
              the offense; (3) the need for deterrence; (4) the need to
              protect the public; (5) the need to provide the defendant
              with needed educational or vocational training or medical
              care; (6) the kinds of sentences available; (7) the
              Sentencing Guidelines range; (8) pertinent policy
              statements of the Sentencing Commission; (9) the need to
              avoid unwanted sentencing disparities; and (10) the need
              to provide restitution to victims.

(citing 18 U.S.C. § 3553(a)).

       “[W]e may find that a district court has abused its considerable discretion if it

has weighed the factors in a manner that demonstrably yields an unreasonable

sentence.” 

. Normally, however, the decision of how much

weight to accord particular factors in devising a sentence is within the discretion of

the district court. United States v. Clay, 

, 743 (11th Cir. 2007).


                                            55
      In light of the § 3553(a) factors, Brown’s 240-month sentence is

substantively reasonable. The district court noted that Brown had committed the

most recent offenses while on supervised release for another federal conviction for

lying with respect to loan documents and that the most recent offenses involved

numerous instances of the same conduct and lying to his probation officer. Based

on Brown’s prior failure to cease his participation in illegal activity, the district

court reasonably determined that a lengthy term of incarceration was necessary for

deterrence purposes. The district court also stated that it considered the offense to

be serious in nature and that it needed to protect the public from Brown’s repeated

behavior. Although Brown argues that his offense did not involve weapons, drugs,

or the use of force, his actions caused widespread harm to individual victims, banks,

properties, and the neighborhoods in which his properties were located. The court

adequately considered the nature and circumstances of Brown’s offense, and the

240-month sentence Brown received was not substantively unreasonable in light of

his repeated illegal conduct and the damage it caused. We affirm Brown’s

sentence.

                                  III. CONCLUSION

      For the reasons stated, we AFFIRM Brown’s conviction and sentence.




                                            56