                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        January 25, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-3444
          v.                                             (D. Kansas)
 MICHAEL F. LOY,                             (D.C. No. 03-CR-10171-01-WEB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, ANDERSON, and O’BRIEN, Circuit Judges.




      Defendant Michael F. Loy pled guilty, pursuant to a plea agreement, to one

count of mail fraud, in violation of 18 U.S.C. § 1341, two counts of wire fraud, in

violation of 18 U.S.C. § 1343, and one count of interstate transportation of stolen

property, in violation of 18 U.S.C. § 2314. He was sentenced to sixty-three

months’ imprisonment, followed by two years of supervised release, and was

ordered to pay $239,752.32 in restitution. Loy’s subsequent motion to withdraw


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
his guilty plea was denied by the district court. He appeals that denial. We

affirm.



                                 BACKGROUND

      On October 21, 2003, a twelve-count indictment charged Loy, a certified

public accountant, with various counts of mail fraud, wire fraud, money

laundering, forging an endorsement on a security, and interstate transportation of

stolen property. 1 In early plea negotiations with the government prior to his

indictment, Loy was represented by attorney John Ambrosio.

      Loy made his first appearance before Magistrate Judge Karen Humphreys

on November 5, 2003. Attorney Chris Meek appeared with Loy but did not enter

an appearance. Loy informed the court that he was in the process of retaining

Meek as his counsel. Magistrate Judge Humphreys scheduled the case for

arraignment on November 12, 2003, in order to accommodate Meek’s schedule.

      Loy appeared at his arraignment on November 12, accompanied by

Assistant Federal Public Defender Timothy Henry. Henry did not enter his

appearance. When questioned by the court concerning counsel, Loy represented



      1
       More specifically, Loy was charged with one count of mail fraud, two
counts of wire fraud, three counts of money laundering, two counts of forging an
endorsement on a security, and four counts of interstate transportation of stolen
property.

                                         -2-
that he would finalize his arrangements for retention of counsel by the following

Friday. Magistrate Judge Humphreys informed Loy that he should “feel free to

call Mr. Henry” if he needed help obtaining counsel. R. Vol. II at 154. The

magistrate judge continued the arraignment until November 19. On November 19,

Loy had still not retained counsel, so the arraignment was again continued, this

time until December 3, 2003.

      Meanwhile, on November 13, 2003, the district court issued a General

Order of Discovery and Scheduling, providing for a trial date of January 13, 2004.

      On December 3, 2003, Loy appeared before Magistrate Judge Donald

Bostwick for arraignment, and he again was without counsel. The magistrate

judge asked Loy if he was “going to be able to retain counsel.” Id. at 158. Loy

responded, “[y]es, Your Honor. I apologize for the delay.” Id. at 158-59. The

magistrate judge expressed concern that the delay in retaining counsel would

make it difficult for the attorney to adequately represent Loy at trial. When Loy

asked whether an attorney could enter an appearance at a later date, the magistrate

judge responded that an attorney could enter an appearance at any time. When the

magistrate judge asked Loy if he was prepared to proceed to arraignment, Loy

responded that he was comfortable proceeding by himself.




                                         -3-
      The magistrate judge accordingly proceeded with arraignment, informing

Loy in detail of the charges against him, to which he pled not guilty. At the

conclusion of the arraignment proceedings, the magistrate judge told Loy:

      I cannot say to you more emphatically that you need to get an
      attorney and get an attorney immediately because things are going to
      start[] rolling very fast with [district court] Judge Brown and if you
      don’t get an attorney, we’re going to get into some real problems in
      this case.

Id. at 168-69. When asked whether the retention of Meek as Loy’s counsel was

imminent, Loy responded that Meek would be retained “[w]ithin the next week.”

Id. at 169. Meek did not, however, enter an appearance as counsel.

      On December 18, 2003, the district court granted the government’s motion

to set a status conference and scheduled the conference for December 29, 2003.

Loy failed to appear at the conference on the 29th, but because there was some

question whether he had received notice of the conference, the status conference

was rescheduled for December 31, 2003. On December 31, Loy appeared at the

status conference before the district court with Assistant Federal Public Defender

Steve Gradert, whom the court had asked to attend to assist Loy as needed. At

this hearing, the district court asked Loy if he had obtained counsel, to which Loy

replied that he was meeting with Meek the following Tuesday to finalize

arrangements for representation. Loy also informed the court that he could afford

counsel. The district court informed Loy that an attorney would be appointed for


                                         -4-
him if he could not afford one, but that if he could afford an attorney, he would

either have to hire counsel or represent himself. The court further reminded Loy

that he was an educated man with experience in the court system, and that he

faced a maximum penalty of twenty years on many counts of the indictment, and

ten years on another one.

      The court then postponed the status conference until January 2, 2004,

instructing Loy to have his attorney present at that conference. The court further

told Loy “if you don’t have an attorney or can’t tell me what you’re going to do

about this by that time, bring your toothbrush,” and it admonished Loy “[a] man

of your intellectual[] background and experience gets very little tolerance from

me when they don’t exercise that and common sense and do what you’re supposed

to do. Playing around with the Federal courts is not going to work. Do you

understand?” Id. at 188. Loy responded that he understood. Gradert stated, “I

know Mr. Loy had meant no disrespect to the Court. He’s had financial

difficulties that have prevented him from being able to get counsel retained, but

he’s taken care of those financial requirements, and I think it shouldn’t be a

problem at this time.” Id. at 189-90. 2



      2
       The government also informed the court at the December 31 status
conference that it was having difficulty contacting Loy, inasmuch as his home
telephone had been disconnected and Loy repeatedly failed to answer his cell
phone.

                                          -5-
      At the January 2, 2004, status conference, Loy again informed the court

that he did not have counsel. An assistant public defender told the court that Loy

was attempting to sell some property to obtain the necessary funds and that the

sale would be complete by the following Monday. Loy told the court that, as of

then, he lacked the money to pay an attorney. The court accordingly appointed

Mike Hepperly, a member of the panel of attorneys available to be appointed by

the court to represent defendants who cannot afford counsel under the Criminal

Justice Act (“CJA”), 18 U.S.C. § 3006A, to represent Loy. Hepperly entered his

appearance as appointed counsel. Loy informed the court that he had discussed

personally retaining Hepperly after he obtained sufficient funds. The court then

scheduled another status conference for January 5, 2004.

      Represented by Hepperly, Loy appeared at the January 5 status conference

and filed a motion to continue the trial. The district court granted a 120-day

continuance. Hepperly informed the court that he had discussed with Loy the

financial affidavit Loy would need to file to retain appointed counsel and

discovered that Loy did not qualify for appointed counsel because his annual

income was between $80,000 and $100,000. Hepperly thus told the court that he

had advised Loy not to fill out the financial affidavit because “[h]e clearly makes

too much income and has too many assets . . . to be able to have a CJA . . .

lawyer.” R. Vol. II at 237. Loy again stated that he wanted to retain Hepperly


                                         -6-
once he had sufficient funds to pay him. Trial was rescheduled for May 18, 2004.

The court scheduled another status conference for January 13.

      At the January 13 status conference, Hepperly told the court that he had not

yet been personally retained by Loy, and that he was still a CJA-appointed

counsel. Hepperly asked that the status conference be continued for a week so he

could clarify his status as Loy’s counsel. The court again urged Loy to obtain

counsel, stating “time’s running out for you to get somebody to get in here and

give you the representation that you—any defendant deserves.” Id. at 246-47.

The court continued the status conference until January 20, stating “[a]nd at that

time, I’ll expect you to have counsel in view of your statements that you’re able

to pay for counsel.” Id. at 247. The following exchange then occurred between

the court and Loy:

      THE COURT: Once more. Again, I’m continuing this case in
      abundance of precaution to see that you have adequate counsel.

      DEFENDANT LOY: Yes, sir.

      THE COURT: If that isn’t arranged, then we’re—you have two
      alternatives; you’ll be representing yourself or your very adequate
      counsel retained.

      DEFENDANT LOY: Yes, sir, Your Honor.

      THE COURT: And as I told you, I don’t recommend you represent
      yourself.

      DEFENDANT LOY: That’s correct, Your Honor.


                                         -7-
      THE COURT: Even as well trained as you are and the background as
      a CPA and as a person familiar with the workings of our judicial
      system.

Id. at 247-48.

      At the January 20, 2004, status conference the court asked Loy and

Hepperly if arrangements for counsel had been made and was told that they had

not been. When asked by the court for an explanation, Loy responded, “Your

Honor, I’m not yet able to retain Mr. Hepperly, and so I’m ready to proceed today

representing myself, Your Honor.” Id. at 252. The following exchange then

occurred:

      THE COURT: Well, we’ve gone over that before, and I’ll remind
      you of all the things we had told you—Judge Bostwick told you, but
      you—you’re ready to proceed on your own behalf?

      THE DEFENDANT: (Nodded head up and down.)

      THE COURT: All right. For your services, Mr. Hepperly, I will
      make whatever arrangements are necessary.

      MR. HEPPERLY: Certainly, Your Honor.

      THE COURT: I appreciate your services. And I just want to remind
      you, Mr. Loy, that any pretrial motions are to be filed by April 26th
      of 2004. The trial is set for May 18th of 2004, and we will go to trial
      on that day. If you have any discovery or need anything in the way
      of—for your own defense, why, you should let us know.
             Judge Bostwick went over very carefully with you, didn’t he,
      the problems about your pro se representation and the dangers that
      are involved with it?

      THE DEFENDANT: Yes, sir, Your Honor, he did.


                                         -8-
THE COURT: You’re well aware of them, I take it.

THE DEFENDANT: Yes, sir, and he said that I was allowed to add
counsel any time during proceedings.

THE COURT: You can, but that will not be—will not be for the
purposes of delay.

THE DEFENDANT: Correct. That’s correct, Your Honor.

THE COURT: You understand that?

THE DEFENDANT: Yes, sir, Your Honor.

THE COURT: Have you ever represented yourself in a criminal
case?

THE DEFENDANT: No, sir, Your Honor.

THE COURT: I’ve explained to you the punishment if you’re found
guilty in this case and what it is, you understand.

THE DEFENDANT: Yes, sir, Your Honor.

THE COURT: And have you ever had anything to do with the
guidelines?

THE DEFENDANT: No, sir, Your Honor.

THE COURT: Well, the library is where you can find them. You
know that.

THE DEFENDANT: Yes, sir, Your Honor.

THE COURT: You know you’re on your own, that the Court can’t
help you.

THE DEFENDANT: Yes, sir, Your Honor, that’s correct.



                               -9-
THE COURT: Have you had any experience with the federal rules of
criminal behavior—evidence?

THE DEFENDANT: No, sir.

THE COURT: They will apply to your case and what your evidence
may be.

THE DEFENDANT: Yes, Your Honor.

THE COURT: Well, like we’ve said before, and I’ve told you I think
it is my opinion that a trained lawyer would defend you far better
than you can represent yourself. I think it’s unwise for you to try.

THE DEFENDANT: Yes, Your Honor.

THE COURT: Of course you are familiar with certain phases of the
law, the tax law.

THE DEFENDANT: Yes, Your Honor.

THE COURT: You’re a CPA and accountant.

THE DEFENDANT: Yes, sir.

THE COURT: That’s—and while that has some elements of criminal
problems with it that you are probably familiar with, I don’t think
you’ve had anything to do with the rules of evidence before, have
you?

THE DEFENDANT: No, Your Honor.

THE COURT: Well, we’ve all told you we don’t think you should
represent yourself, and I don’t think repeating it here is going to do
any good.

THE DEFENDANT: Understood, Your Honor.

THE COURT: And is your decision entirely voluntary?


                                  -10-
      THE DEFENDANT: Yes, sir.

      THE COURT: Due to all the things I’ve previously told you, Judge
      Bostwick has told you, your attorney has probably told you, the
      government’s advised you about, you still desire to represent yourself
      and give up your right to be represented by a lawyer.

      THE DEFENDANT: Yes, Your Honor.

      THE COURT: And your decision again is entirely voluntary.

      THE DEFENDANT: That is correct.

      THE COURT: Well, I find the defendant has knowingly and
      voluntarily waived the right to counsel, and I will therefore permit
      the defendant to represent himself.
             You understand again when all motions in this case must be
      filed.

      THE DEFENDANT: Yes, Your Honor.

      THE COURT: And when the trial is going to be.

      THE DEFENDANT: Yes, Your Honor.

      THE COURT: I’ve done this many times before with people. I do
      want to indicate to you I’ve never had one acquitted who represented
      himself.

      THE DEFENDANT: I understand, sir.

Id. at 252-56. Hepperly then gave Loy a letter indicating that Hepperly no longer

was Loy’s counsel.

      On April 19, 2004, the government filed a motion to continue the trial. The

district court scheduled a status conference for May 3 to consider the motion to

continue. Loy failed to appear at the May 3 conference, but telephoned the

                                        -11-
clerk’s office to inform the court that he was having problems with his car and

would be unable to attend. After discussing the government’s conflicts with the

May 18 trial date previously set, the court granted the motion to continue the trial

until June 29, 2004.

      On June 24, during a scheduled change of plea hearing, 3 Loy told the court

that he had discussed a plea agreement with the government, but was not prepared

to enter into it at that time. On June 29, the day scheduled for the commencement

of the trial, Loy failed to appear. The government told the court that the FBI

agent assigned to the case had received a call at 10:00 p.m. the night before (June

28) from Darla Peterson, Loy’s girlfriend, stating that Loy had checked into the

hospital with chest pains and would not be appearing in court on the 29th.

Government counsel observed that, while it was possible Loy had a heart attack

which prevented his appearance at trial, it was also possible that this was another

ploy to delay the proceedings. The court then acquiesced in the government’s

request to issue a forty-eight hour bench warrant for Loy, to allow an

investigation into Loy’s alleged medical problems. The court also issued a

subpoena to obtain Loy’s medical records from the hospital and from Loy’s



      3
       Apparently, on June 14, government counsel, Assistant United States
Attorney Metzger, contacted the court and informed the court that the parties had
reached a plea agreement. Accordingly, the court scheduled a change of plea
hearing for June 24.

                                         -12-
physician. On July 1, 2004, an arrest warrant was issued for Loy. On July 3, Loy

voluntarily surrendered to the Sedgwick County detention facility.

      On July 6, Loy appeared with Gradert before Magistrate Judge Bostwick for

a hearing on whether Loy’s failure to appear at his trial was a violation of the

conditions of his pretrial release. The following exchange occurred:

      THE COURT: . . . .Before I go any further, you have said
      throughout these proceedings that you wish to proceed without a
      lawyer or you were retaining a private lawyer.

      [THE DEFENDANT]: Yes, Your Honor.

      THE COURT: All right. As I recall, you appeared first in front of
      Judge Humphreys and told her you were going to retain Mr.
      Christopher Meek and it was a matter of selling some real estate and
      you would get him hired.

      [THE DEFENDANT]: Yes, Your Honor. I was told that I didn’t
      qualify earlier because of my income but my income has changed
      drastically and therefore I think I might qualify now, sir.

      THE COURT: Did you sell the real estate?

      [THE DEFENDANT]: No sir. I actually didn’t have the real estate
      in my name. It was family that was trying to get the funds.

      THE COURT: So are you asking me now to consider the
      appointment of counsel for you?

      [THE DEFENDANT]: Yes, Your Honor.

      THE COURT: I have a Financial Affidavit Form which bears your
      signature and today’s date.

      [THE DEFENDANT]: Yes, Your Honor.


                                         -13-
THE COURT: Do you recall providing information concerning your
assets, your employment and your income to Pretrial Services before
the hearing today?

[THE DEFENDANT]: Yes, Your Honor.

THE COURT: Was everything that you told them about your
income, your assets, your expenses and your employment true and
correct?

[THE DEFENDANT]: Yes, Your Honor.

....

THE COURT: All right. It indicates here that through June of this
year . . . [y]ou earned a total of $23,000.

[THE DEFENDANT]: Yes, sir.

....

THE COURT: Who is ML & Company?

[THE DEFENDANT]: That’s an accounting firm there in Pittsburgh
that I and my brother own.

THE COURT: So you own an ownership interest in that firm?

[THE DEFENDANT]: Well, I have, yes, an ownership interest in
that firm; yes, sir.

....

THE COURT: [C]an you tell me what you believe your half interest
in that company is worth today?

[THE DEFENDANT]: Probably 10 to $20,000, my share.

....


                                -14-
      THE COURT: Now, when you were first interviewed by Pretrial
      Services, you indicated you were going to retain your own counsel
      and at that time you told the Pretrial Services officer . . . that you
      were earning $8,000 a month from ML & Company and that your
      total monthly expenses were three or $4,000.

      [THE DEFENDANT]: That is correct, sir.

      THE COURT: What has changed since that time?

      [THE DEFENDANT]: The publicity surrounding my federal
      indictment has drastically limited the ML & Company income.

      ....

      THE COURT: And the real estate that you told Judge Humphreys
      you were in the process of selling to get cash to retain Mr.
      Christopher Meek when you appeared in front of her in November of
      2003, you now say is owned by somebody else?

      [THE DEFENDANT]: In the family, yes, sir. It’s not owned by me.
      It never was owned by me.

      THE COURT: Who did own it?

      [THE DEFENDANT]: It was my ex-wife and her family. Not
      officially divorced, Your Honor, but separated. Have been separated
      for about six years, Your Honor.

Id. at 326-32. Magistrate Judge Bostwick observed that, had Loy appeared before

him the first time making these representations concerning his financial condition,

and if they were correct, Loy would probably have been provided appointed

counsel. However, given the trial schedule, the magistrate judge declined to

appoint counsel.



                                         -15-
      With respect to his failure to appear for trial on June 29, Loy testified that

he did not appear in court because he experienced chest pains the evening of June

28 and was admitted to the intensive care unit of a hospital for testing and was

released on June 29 at 4:15 p.m. The government responded that Loy’s hospital

records indicated he had normal vital signs when he was admitted complaining of

chest pains, and that a heart catheterization procedure indicated that the chest

pain was not caused by any cardiac condition. The government further informed

the court that Loy did not call the district court, the U.S. Attorney’s office or the

U.S. Probation Office when he was dismissed from the hospital, but instead went

to a baseball game. The government asserted that Loy failed to call anyone on

June 30 or July 1, and only finally contacted the FBI on the evening of July 2. 4

The magistrate judge found that, based on that evidence, Loy violated the

conditions of his release, and the judge revoked Loy’s bond and ordered him

detained pending trial.

      Following the hearing before Magistrate Judge Bostwick, Loy,

accompanied by Gradert, appeared in district court for a status hearing. The

district court observed that the case was set for trial the following day, July 7,

2004. Loy requested that, in light of the Supreme Court’s recent decision in


      4
        There was testimony that Loy left a message with the U.S. Attorney’s
office late in the afternoon of July 1, but he failed to contact the FBI until the
next day.

                                          -16-
Blakely v. Washington, 542 U.S. 296 (2004), 5 the court appoint counsel to

represent him. Gradert indicated his willingness to represent Loy, but that he

would need time to prepare. The government argued that Loy was simply trying

to delay the trial and that he had done the same thing—continually claiming he

was going to get a lawyer but then failing to do so—in criminal proceedings filed

against him by the Kansas Securities Commission and in at least two civil

proceedings.

       The district court found that the government’s assertion was accurate and

supported by the record. It accordingly found that Loy was simply employing a

tactic to avoid the responsibility of trial and to delay or prevent resolution of his

case. The court then appointed Gradert to serve as standby counsel and released

Loy to a halfway house so he could prepare for his trial to commence the next

day.

       Meanwhile, earlier that day, Loy and Gradert had discussed the possibility

of a plea agreement. At approximately 4:00 p.m., after government counsel and

Loy and Gradert had discussed a plea agreement for some one and one-half hours,

the court informed Loy that he had ten minutes to decide whether to enter a guilty




       The Supreme Court in Blakely held that in a state prosecution the Sixth
       5

Amendment mandates that the maximum permissible sentence for a defendant be
determined solely on the basis of “facts reflected in the jury verdict or admitted
by the defendant.” 542 U.S. at 304.

                                         -17-
plea. Shortly thereafter, Loy informed the court that he wished to plead guilty.

The district court accordingly reconvened the hearing, and Loy pled guilty to one

count of mail fraud, in violation of 18 U.S.C. § 1341, two counts of wire fraud, in

violation of 18 U.S.C. § 1343, and one count of transportation of stolen property,

in violation of 18 U.S.C. § 2314.

      At the plea hearing, with Gradert as Loy’s standby counsel, the district

court reviewed the plea agreement with Loy, including the provisions of the

agreement waiving his right to appeal his conviction and sentence and waiving his

rights under Blakely to have sentencing enhancements found by a jury beyond a

reasonable doubt. The district court reviewed the counts of the indictment and

the elements of each offense charged. The court further reviewed the factual

statement contained in the plea agreement and Loy, under oath, admitted that the

facts contained in the factual statement were accurate and truthful. The court

reviewed the sentencing enhancements specified in the factual statement, and Loy

admitted that the factual statements relating to the sentencing enhancements were

accurate and truthful. Loy further admitted that he knew he had the right to plead

not guilty and that by pleading guilty he would be giving up any possible defenses

to the charges against him. The court reviewed the other rights Loy would be

giving up by pleading guilty. Loy admitted that he understood that the sentence

to be imposed on him would be determined “solely by the United States district


                                        -18-
judge and that the United States cannot and has not made any promises or

representations to [him] as to the sentence” he would receive. R. Vol. II at 306.

Loy further admitted that he had been furnished a copy of Blakely, that he had

discussed it with his standby counsel, that he agreed his sentence would be

determined according to the sentencing guidelines and that he had no questions

concerning Blakely. He also acknowledged that he would not be allowed to

withdraw his guilty plea, and that he had waived any appeal or collateral attack on

his conviction and sentence. He told the court that he had had sufficient time to

discuss his case, the evidence, and the plea agreement with standby counsel and

that the agreement was the only one he had entered into with the government.

      Loy further admitted he had entered into the plea agreement freely and

voluntarily, and the court reminded him that the court did not later “want to hear

that you now think that you’ve been pressured into signing this agreement. Have

you?” to which Loy responded “No, sir.” Id. at 311-12. The court reviewed the

potential penalties faced by Loy, and Loy acknowledged that he understood such

penalties. The court and Loy then had the following exchange:

      THE COURT: And, Mr. Loy, you know I’m not going to let anybody
      plead guilty who maintains he’s innocent. With that in mind, are you
      telling the Court that you’re guilty?

      DEFENDANT LOY: Yes, Your Honor.

      THE COURT: You’re not claiming to be innocent?


                                        -19-
      DEFENDANT LOY: That is correct.

      THE COURT: And you want to plead guilty and have the Court
      accept that plea and have the clerk enter a plea of guilty; is that
      right?

      DEFENDANT LOY: Yes, Your Honor.

Id. at 316. Loy accordingly pled guilty to counts one, two, three and eleven of the

indictment.

      After finding that Loy’s plea was freely and voluntarily made because Loy

was guilty, and was not made “out of ignorance, fear, inadvertence, or coercion”

and was made “with a full understanding of its consequences,” the court accepted

his plea of guilty to the four counts. Id. at 319.

      On July 12, 2004, a status conference was held and the court issued an

order modifying Loy’s conditions of release to permit him to stay in a halfway

house for one month.

      On August 4, 2004, attorney Ken Kerns entered an appearance in the case.

On August 12, the court granted Loy’s motion to further modify the conditions of

release so he could remain at liberty and work four days a week. On September 3,

Loy filed a motion for an extension of time to file objections to the presentence

report (“PSR”), which the court granted.

      On September 23, Loy, through counsel, filed a motion to withdraw his

guilty plea. He argued that he was innocent, that he lacked the intent to defraud


                                          -20-
any of his alleged victims, that he pled guilty only to get himself out of jail, that

he felt intimidated by the district court when he pled guilty, and that he felt he

had little choice with trial scheduled to commence the next day. He further

claimed that he had never waived his right to counsel and did not receive

effective assistance of counsel, and that his guilty plea was not knowing and

voluntary but was made out of fear.

      The government responded to Loy’s motion to withdraw his plea, arguing

that the status of Loy’s legal representation was solely the result of his own

actions and representations to the court that he could and would retain his own

attorney, and that his guilty plea was knowing and voluntary. In his reply to the

government’s response, Loy argued that he had too much money to qualify for

appointed counsel but not enough to hire his own counsel, and that his failure to

retain counsel was not a ploy or delaying tactic. He further argued that the

government had failed to provide him with discovery as required by a court

scheduling order.

      On October 25, 2004, a motion and sentencing hearing was held, at which

Loy was represented by attorney Kerns. Kerns argued that Loy felt pressured and

coerced and that he entered into the plea agreement in order to get out of jail. He

further argued that Loy got no benefit from the plea agreement. Loy presented an

affidavit from his girlfriend, Darla Peterson, in which she stated that she and Loy


                                          -21-
had attempted to sell 7.8 acres of land in Crawford County, Kansas, beginning in

February 2004, but that it had not been sold until July 2004, at which time funds

from that sale were used to retain attorney Kerns. 6 Loy further argued that the

government had failed to provide him with discovery until the Friday before trial,

and therefore any delay was at least partially the government’s fault.

      The government proffered that, with respect to the discovery issue, at the

conclusion of the last status conference with Loy in January 2004 the government

specifically told Loy that several boxes of documents were available at the U.S.

Attorney’s office for his review. The government further averred that in January

2004 it had notified Loy that it would provide him with all the marked trial

exhibits on the Friday before trial, and they so notified him on that Friday. The

government also argued that Loy received a benefit from the plea agreement

because the government had agreed not to bring additional charges against Loy,

including tax charges resulting from an active tax evasion investigation of Loy.

Finally, the government argued that Loy’s conduct with respect to obtaining

counsel was a “cat and mouse” game with the district court, designed to delay

going to trial, that Loy’s guilty plea was knowing and voluntary, and that Loy’s




      6
       This property was different from the property owned by Loy’s “ex-wife”
and her family, which he had previously told the court was available for sale to
generate funds for an attorney.

                                        -22-
demeanor during the plea hearing indicated that he was not afraid, intimidated or coerced.

      The district court denied Loy’s motion to withdraw his guilty plea, finding:

that Loy “had the financial means throughout this case to retain counsel” but had

“consistently refused to make appropriate arrangements with an attorney”; that

Loy had “purposefully refrained from hiring an attorney” to postpone resolution

of his case; that Loy had refused to file an affidavit supporting appointment of

counsel until the last minute; that Loy knowingly and voluntarily waived the right

to assistance of counsel and voluntarily and knowingly decided to represent

himself; that the financial affidavit Loy finally filed seeking to qualify for

appointed counsel was “vague, incomplete and in some respects false” and that

Loy had failed to show he was financially unable to obtain counsel; that Loy’s

“belated claim of financial inability was made in bad faith for the purpose of

obstructing” his upcoming trial; that Loy’s claim of innocence is “flatly

contradicted” by his statements under oath at the plea hearing and in the plea

agreement; that granting the motion to withdraw the guilty plea would result in

prejudice to the government; that Loy had delayed more than two months before

filing the motion to withdraw; that Loy’s plea was knowing and voluntary; that,

based upon the court’s observation of Loy throughout the entire proceeding, Loy

was not intimidated but, rather, was “confident and sure of himself at each court

proceeding”; that Loy’s claimed lack of preparedness for his trial was “due solely


                                          -23-
to his dilatory conduct”; that granting the motion to withdraw would result in a

tremendous waste of judicial resources; that the government had not improperly

deprived Loy of any discovery; and that there was accordingly no fair and just

reason to permit withdrawal of the plea. Id. at 382-84. The court’s subsequent

written order largely reiterated these findings.

      The court then conducted a sentencing hearing, at which Loy was sentenced

to sixty months in prison on counts one, two and three, and sixty-three months on

count eleven, to be served concurrently with the first sentence, for a total of sixty-

three months in prison, followed by two years of supervised released, and he was

ordered to pay $239,752.32 in restitution. After Loy filed his appeal of that order

in our court, the government filed a motion in our court to enforce the plea

agreement. This court then issued an order reserving judgment on the

government’s motion and ordering briefing on the merits to proceed. We

accordingly have this appeal and the government’s motion before us.

      Loy argues on appeal that the district court erred in denying his motion to

set aside his guilty plea because he is innocent, he was denied counsel, and his

plea was not voluntary and knowing because it was made out of fear.



                                   DISCUSSION




                                         -24-
      “‘We review the district court’s denial of a motion to withdraw a guilty

plea for an abuse of discretion.’” United States v. Yazzie, 407 F.3d 1139, 1142

(10th Cir.) (en banc) (quoting United States v. Jones, 168 F.3d 1217, 1219 (10th

Cir. 1999)), cert. denied, 126 S. Ct. 303 (2005). A court considering whether a

defendant has presented a “fair and just reason for withdrawal” of a guilty plea

must consider the following factors:

      (1) whether the defendant has asserted his innocence; (2) whether
      withdrawal would prejudice the government; (3) whether the
      defendant delayed in filing his motion, and if so, the reason for the
      delay; (4) whether withdrawal would substantially inconvenience the
      court; (5) whether close assistance of counsel was available to the
      defendant; (6) whether the plea was knowing and voluntary; and (7)
      whether the withdrawal would waste judicial resources.

Id. (quoting United States v. Sandoval, 390 F.3d 1294, 1298 (10th Cir. 2004)

(quotation marks omitted)). As indicated in our lengthy recitation of the district

court’s findings and conclusions in the hearing on Loy’s motion to withdraw his

guilty plea, the court carefully considered all of those factors in denying that

motion. We agree fully with the district court’s conclusions, as they are amply

supported by the record, including the district court’s conclusion that Loy’s guilty

plea was knowing and voluntary, and not the product of fear or intimidation. We

address additionally only the issue of whether Loy had adequate assistance of

counsel in entering into the plea agreement, including the question of whether he




                                         -25-
knowingly and voluntarily waived his right to counsel and decided to proceed pro

se.

      Loy argues that he did not waive his right to counsel, and that his standby

counsel was inadequate to satisfy the Sixth Amendment’s requirement of effective

assistance of counsel. “To ascertain whether [a defendant] knowingly and

intelligently waived his right to counsel, we must consider ‘the total

circumstances of the individual case including background, experience and the

conduct of the accused person.’” United States v. Weninger, 624 F.2d 163, 164

(10th Cir. 1980) (quoting United States v. Warledo, 557 F.2d 721, 727 (10th Cir.

1977)). For such a waiver to be valid, it “‘must be made with an apprehension of

the nature of the charges, the statutory offenses included within them, the range

of allowable punishments thereunder, possible defenses to the charges and

circumstances in mitigation thereof, and all other facts essential to a broad

understanding of the whole matter.’” Id. (quoting Von Moltke v. Gillies, 332

U.S. 708, 723-24 (1948)).

      The record in this case reveals that Loy, an educated professional with

some familiarity with the workings of the judicial system, repeatedly assured the

court that he was in the process of retaining counsel, only to appear at the next

scheduled court appearance without such an attorney. He also repeatedly assured

the court that he could afford an attorney. The district court judge repeatedly


                                         -26-
warned Loy of the difficulties he would encounter without an attorney, and, when

he represented to the court that his financial condition had changed such that he

thought he would qualify for appointed counsel, the court promptly took steps to

provide such counsel. When it turned out that Loy did not qualify for appointed

counsel, the court permitted him yet more time to make arrangements to retain

counsel. Only when Loy appeared yet again without counsel and asked to be

permitted to represent himself did the court conclude that Loy had knowingly and

voluntarily waived his right to assistance of counsel, after warning Loy repeatedly

of the dangers inherent in representing himself, cautioning him not to do so, and

inquiring whether the decision he was making was voluntary.

      “A defendant’s right to obtain counsel of his choice must be balanced

against the need for the efficient and effective administration of criminal justice.”

Id. at 166. And while our court has “recognized a right of a defendant to proceed

without counsel,” id. (further quotation omitted), a defendant

      may not use this right to play a “cat and mouse” game with the court
      . . . or by ruse or stratagem fraudulently seek to have the trial judge
      placed in a position where, in moving along the business of the court,
      the judge appears to be arbitrarily depriving the defendant of
      counsel.




                                         -27-
Id. (further quotation omitted). We find that Loy engaged in just such a “cat and

mouse” game. We hold that his “stubborn failure to hire an attorney constituted a

knowing and intelligent waiver of the right to assistance of counsel.” Id. at 167. 7



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the denial of Loy’s motion to

withdraw his guilty plea, we GRANT the government’s motion to enforce the plea

agreement and we DISMISS this appeal.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




      7
        Loy argues that the district court failed to give proper consideration to
affidavits filed by Meek and Gradert. His standby counsel Gradert filed one, in
which he expressed his belief that Loy “entered into the plea of guilty simply to
get released on bond. . . . [He] was extremely stressed about the position he was
in and pled because he felt he had no other option.” Gradert Aff. ¶ 11, R. Vol. I
at 65. Meek also filed an affidavit, describing his efforts in attempting to arrange
for Loy to hire a very experienced attorney who charged a minimum fee of
$75,000, but stating that Loy was never able to “come up with enough money.”
Meek Aff. ¶ 7, id. at 114. Meek also “was concerned about him representing
himself.” Meek Aff. ¶ 8, id. Neither of these attorneys was able to witness the
entire course of Loy’s conduct. The district court was able to witness that entire
course of conduct, and it clearly found that Loy’s statements and conduct
demonstrated an intelligent and knowing waiver of his right to counsel.

                                         -28-
