                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 17a0164n.06

                                        Case Nos. 15-4343/16-3169

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

                                                                                               FILED
                                                                                       Mar 15, 2017
UNITED STATES OF AMERICA,                                   )
                                                                                   DEBORAH S. HUNT, Clerk
                                                            )
        Plaintiff-Appellee,                                 )
                                                            )        ON APPEAL FROM THE UNITED
v.                                                          )        STATES DISTRICT COURT FOR
                                                            )        THE SOUTHERN DISTRICT OF
LANCE EALY,                                                 )        OHIO
                                                            )
        Defendant-Appellant.                                )
                                                            )
____________________________________/                       )


Before: MERRITT, COOK, and McKEAGUE, Circuit Judges.

        MERRITT, Circuit Judge. This opinion concerns a fraud case that was completed after

the defendant Ealy fled the jurisdiction of the court during trial and was finally caught months

later. Ealy was then tried for failing to appear at the first trial. Accordingly in these dual appeals

by Ealy we have (1) an appeal from a 2014 jury trial in which Ealy was found guilty of multiple

counts of fraud (Appeal No. 15-4343), and (2) an appeal from a 2015 bench trial in which Ealy

was found guilty of failing to appear for the last three days of the jury trial after he had fled

(Appeal No. 16-3169).1 Ealy was sentenced to 124 months in the 2014 jury trial, and 24 months

in the 2015 bench trial to run consecutively, bringing his total sentence to 148 months. In the


1
  Due to the overlapping nature of these appeals and the interests of the court in efficiency and clarity, we have
consolidated the cases into a single opinion.
Case Nos. 15-4343/16-3169, United States v. Ealy


appeal from the 2014 jury trial, Ealy raises multiple issues concerning his various attempts to

waive and then unwaive his right to counsel, his attempt to postpone the trial date, the

sufficiency of the evidence, and his sentence of 124 months. In the appeal from his 2015 bench

trial for failing to appear, Ealy claims that the district court should have dismissed instead of

“merging” the counts for failing to appear the last two days of the trial, and that he should have

received a sentence under the Guidelines of not more than eight months instead of the 24 month

sentence imposed by the court.

        All of Ealy’s arguments appealing the two district court decisions fail. We therefore

affirm both of the judgments. We do not dismiss the appeal or waive Ealy’s claims because of

his absconding and becoming a fugitive from justice during his trial. See Ortega-Rodriguez v.

United States, 507 U.S. 234 (1993).

                                                I. Background

        At the end of his November 2014 jury trial, a jury convicted Ealy in abstentia of

46 counts of various forms of fraud, identity theft, and other crimes. Ealy took part in an

elaborate tax fraud scheme involving the illegal online trade of personal information, which he

used to file fraudulent tax returns. He then hid the proceeds of the fraud in fraudulent bank

accounts. After Ealy unknowingly provided identifying information to an undercover agent,

investigators obtained a search warrant for an email address to confirm Ealy’s identity. In

October 2013, Ealy was arrested for violating 18 U.S.C. § 1029(a)(3).2 In November 2013, he

was charged in a single count indictment for committing fraud in connection with an access

device. 18 U.S.C. § 1029(a)(3).



2
  18 U.S.C. § 1029(a)(3) prohibits fraud and related activity in connection with access devices: “[w]hoever
knowingly and with intent to defraud possesses fifteen or more devices which are counterfeit or unauthorized access
devices[.]”

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Case Nos. 15-4343/16-3169, United States v. Ealy


           The procedural history of the case is convoluted due to Ealy’s interactions with his

lawyers. Ealy first retained private counsel Samuel Latham. He then filed multiple pro se

motions to terminate Latham. Before ruling on the motions, the district judge recused himself.

In April 2014, after the case was assigned to a new judge, a grand jury returned a superseding

indictment charging Ealy with 42 counts of mail and wire fraud, access device fraud, aggravated

identify theft, and filing false tax claims.3 The indictment alleged that Ealy had planned a tax

fraud scheme by filing over 150 fraudulent tax return forms and spreading the proceeds among

fraudulent bank accounts.

           The new district court judge then considered Ealy’s pro se motion. The court questioned

Ealy about Ealy’s concern that Latham was committing malpractice and was intentionally

ineffective. After finding that Ealy’s waiver of his right to counsel was knowing and voluntary,

Ealy was allowed to proceed pro se. In May, Ealy changed his mind and moved to have a public

defender appointed to the case. The court granted the motion and appointed Thomas Anderson.

           In July 2014, Ealy filed a pro se motion to terminate Anderson as his counsel. The court

entertained the motion and also heard evidence that Ealy had committed crimes while on bond.

The court denied the pro se motion and revoked Ealy’s bond, finding probable cause that he had

committed crimes while on bond.

           Ealy brought another pro se motion to have Anderson terminated and new counsel

appointed in August 2014. After a forty-minute hearing, the court declined to appoint new

counsel, finding Ealy had not convincingly argued that Anderson had committed malpractice and

was unqualified. The court also warned Ealy, and had warned him before, of the risks inherent

in pro se representation. Still Ealy was allowed to proceed pro se, with Anderson appointed as

stand-by counsel. Ealy continued to make complaints to the court about Anderson leading up to
3
    Eventually, in September 2014, a second superseding indictment was filed that contained 46 counts.

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Case Nos. 15-4343/16-3169, United States v. Ealy


trial, including claims that Anderson would not show him discovery documents. Anderson

responded to the court that he had tried to review discovery with Ealy but Ealy refused, and that

he had presented a review of the government’s case to Ealy.

        Before the trial, which was set for October 27, 2014, the court had multiple hearings and

status conferences. At hearings on September 25 and October 3, Ealy was specifically asked

whether he needed a continuance to properly prepare for trial. Ealy not only stated he did not

need a continuance, but also instructed Anderson not to ask for one. Ealy again claimed that

Anderson was ineffective stand-by counsel, stating that Anderson had refused to issue

subpoenas, work with Ealy’s father, and work with a reporter on the case. The district court

again rejected Ealy’s contentions: “[Anderson] abided completely by the Rules of Professional

Conduct . . . as a defense lawyer in this case [and] . . . [has] done his job.”

        The day before the trial Ealy moved for a continuance, claiming he had been given

insufficient time to prepare. The court denied the continuance since Ealy had been offered one

on September 25 and again on October 3 and rejected the offers, explicitly informing the court

he would be ready. Ealy again claimed that Anderson was ineffective, and asked the district

court to appoint new counsel to the case. The district court again rejected the allegations against

Anderson as meritless.

        At trial, approximately seventy witnesses testified and the government produced evidence

that included records of Ealy’s email exchanges and bank surveillance footage tying him to the

fraudulent tax refunds. But before the end of the trial, Ealy cut off his electronic monitoring

device and fled the state. The district court found that Ealy had voluntarily fled and revoked his

pro se status, requiring Anderson to complete the trial. The trial continued three days in Ealy’s

absence: November 17, 18, and 19. On November 19, 2014, the jury convicted Ealy of all 46



                                                 -4-
Case Nos. 15-4343/16-3169, United States v. Ealy


counts. Six months after fleeing the jury trial, Ealy was captured in Georgia. At sentencing Ealy

received 124 months imprisonment.

        In October 2015, the Southern District Court of Ohio conducted a bench trial and

convicted Ealy of failure to appear. Ealy received an additional 24 months imprisonment to run

consecutively for willfully failing to appear at his jury trial, bringing his total sentence to 148

months. These appeals followed.

                                          II. Analysis

A. Denial of Motion to Substitute Counsel

       Ealy claims the district court erred in denying his repeated requests to replace Thomas

Anderson, the appointed public defender, as counsel. We review a district court decision to deny

substitution of counsel for abuse of discretion. United States v. Vasquez, 560 F.3d 461, 466 (6th

Cir. 2009). “The right to counsel of choice . . . is not absolute.” United States v. Iles, 906 F.2d

1122, 1130 (6th Cir. 1990). The defendant must demonstrate good cause to warrant substitution

of counsel. Id. When analyzing whether the trial court abused its discretion in denying a motion

to withdraw or substitute counsel we consider:

       (1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the
       matter, (3) the extent of the conflict between the attorney and client and whether it
       was so great that it resulted in a total lack of communication preventing an
       adequate defense, and (4) the balancing of these factors with the public’s interest
       in the prompt and efficient administration of justice.

United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001).

       The district court did not abuse its discretion in denying Ealy’s motion to substitute

counsel. Ealy made multiple timely requests for substitution of his counsel, and the district court

allowed Ealy to explain the issues he had with his first attorney, Latham, and his second

attorney, Anderson. One of the hearings lasted forty minutes. Despite warnings from the court


                                                 -5-
Case Nos. 15-4343/16-3169, United States v. Ealy


about the risks involved, Ealy opted to proceed pro se. During that time, the district court

continued to entertain Ealy’s criticisms of Anderson as stand-by counsel. However, the district

court in its discretion did not find Ealy’s vague criticisms of his stand-by counsel’s “conflict of

interest” to be credible, and found Ealy’s specific criticisms to be meritless. See e.g., United

States v. Saldivar-Trujillo, 380 F.3d 274, 278 (6th Cir. 2004) (finding that an indigent

defendant’s mere dissatisfaction with his lawyer’s responses does not amount to a lack of

communication). This court agrees. The record shows Anderson frequently reached out to Ealy,

did his job, and provided an adequate defense. The public’s interest in the prompt and efficient

administration of justice strongly weighs in favor of the district court’s decision.

B. Pro se error

       Ealy also claims the district court erred by conducting a deficient Faretta inquiry and

“forcing” him to represent himself. A defendant has the right to conduct his own defense before

the trial court. E.g., Faretta v. California, 422 U.S. 806, 819 (1975). Before the defendant can

represent himself, the district court “must ask the defendant a series of questions drawn from, or

substantially similar to, the model inquiry set forth in the Bench Book for United States District

Judges.” United States v. McBride, 362 F.3d 360, 366 (6th Cir. 2004) (citing United States v.

McDowell, 814 F.2d 245, 250 (6th Cir. 1987)).           Literal adherence to the questions is not

required, but the judge must address “the ‘relevant considerations’ behind the model inquiry,

such as ‘the defendant’s familiarity with the law, . . . the gravity of the charges and the dangers

of self-representation,’ and whether ‘the defendant’s decision to waive counsel is voluntary.’”

United States v. Bankston, 820 F.3d 215, 224 (6th Cir. 2016) (quoting United States v. Miller,

910 F.2d 1321, 1324 (6th Cir. 1990)). In the present case, the district court pursued the relevant




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Case Nos. 15-4343/16-3169, United States v. Ealy


inquiry, advised Ealy about the dangers of self-representation, and eventually allowed Ealy to

knowingly and voluntarily waive the right to counsel. See id. at 227.

       The district court did not err in allowing Ealy to proceed pro se. The Sixth Amendment

prohibits courts from giving defendants a choice between proceeding to trial with unprepared

counsel or no counsel at all. See U.S. Const. amend. VI. But Ealy was given the choice to

proceed with counsel in the form of Anderson, who the record shows was competent. The court

may require the defendant to choose between proceeding pro se or maintaining current counsel.

See, e.g. United States v. Pittman, 816 F.3d 419, 425 (6th Cir. 2016). Moreover, persistent and

unreasonable demands for dismissal of counsel and appointment of new counsel can waive the

right to counsel when the defendant rejects all options except self-representation. See United

States v. Green, 388 F.3d 918, 921 – 22 (6th Cir. 2004). The district court properly gave Ealy

the reasonable option of continuing with Anderson as counsel, and Ealy made the decision

within his rights to reject that option. Ealy confuses the right to counsel with a right to be

represented by a particular attorney. See id. at 921.

       In the alternative, Ealy argues that the district court should have re-appointed Anderson

as counsel at the beginning of trial, despite Ealy making no motion to do so. Ealy cites no

authority that suggests the court should have sua sponte re-appointed Anderson as counsel.

Again, Ealy made the permissible decision to reject Anderson as counsel and represent himself.

See Pittman, 816 F.3d at 425. This argument is meritless.

C. Denial of Motion to Continue Trial

       Ealy argues that the district court erred in denying his motion to continue the trial. This

court reviews the denial of motions to continue for abuse of discretion. United States v. Lewis,

605 F.3d 395, 401 (6th Cir. 2010). The denial of a motion to continue is an abuse of discretion



                                                -7-
Case Nos. 15-4343/16-3169, United States v. Ealy


when the district court engages in “an unreasoning and arbitrary insistence upon expeditiousness

in the face of a justifiable request for delay.” Id. (quoting Morris v. Slappy, 461 U.S. 1, 11 – 12

(1983)).   To be reversible error, the defendant must show that the district court actually

prejudiced him in his defense. See id.; see also United States v. Crossley, 224 F.3d 847, 855 (6th

Cir. 2000).

       The district court did not err in denying the motion to continue. The record shows that

the district court asked Ealy whether he needed a continuance on both September 25 and October

3. Both times Ealy stated he would be ready for trial on October 27, and he also instructed his

stand-by counsel not to ask for a continuance on his behalf. Then, the day before trial, Ealy

requested a continuance for improper reasons. In his request, Ealy stated reasons for prejudice

that were inconsistent with the record, such as when he received the government’s discovery.

The record clarifies that Ealy’s stand-by counsel and the court sufficiently aided Ealy in his

defense and provided sufficient time to review discovery and prepare the case. Any failings in

preparation were Ealy’s own. See Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003) (citing

United States v. Burton, 584 F.2d 485, 490 – 91 (D.C. Cir. 1978) (“[A]mong the factors to be

considered by the court in determining whether a continuance was properly denied . . . whether

the delay was for legitimate reasons or whether it was ‘dilatory, purposeful or contrived;’

whether the defendant contributed to the circumstances giving rise to the request . . .”)).

D. Insufficient Evidence

       Ealy claims there was insufficient evidence at trial for the jury to have convicted him.

We review de novo a challenge to a criminal jury verdict based on an insufficiency of the

evidence claim. United States v. Cunningham, 679 F.3d 355, 370 (6th Cir. 2012). We affirm the

decision if “after viewing the evidence in the light most favorable to the prosecution, any rational



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Case Nos. 15-4343/16-3169, United States v. Ealy


trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). The defendant bears a heavy burden in

making an insufficiency of the evidence argument. United States v. Daniel, 329 F.3d 480, 485

(6th Cir. 2003).

        There is no doubt that the government put forward sufficient evidence for a rational trier

of fact to have found the elements necessary for conviction. See id. The evidence included:

email addresses conclusively tied to Ealy, purchases from those emails for illegally obtained

information, strong links to fraudulent bank accounts containing the proceeds of the fraud, ATM

surveillance footage showing Ealy personally withdrawing proceeds from the accounts, financial

documents tied to the scheme found in Ealy’s residence, incriminating searches and emails on

Ealy’s electronic devices, and dozens of government witnesses. A reasonable trier of fact could

certainly weigh the available evidence and convict. See Cunningham, 679 F.3d at 370.

E. Reasonableness of Sentence in Fraud Conviction

        Ealy challenges the application of two Guidelines enhancements to his sentence: the

Sophisticated Means Enhancement4, and the Vulnerable Victim Enhancement.5 We review the

procedural reasonableness of sentences under an abuse of discretion standard. United States v.

Taylor, 800 F.3d 701, 712 (6th Cir. 2015).                The district court correctly found that both

enhancements apply to Ealy. The government provided evidence at trial that Ealy purchased

information from an overseas broker through an “anonymous” electronic “black market financial

network” and concealed his actions through complex methods such as VPN software. See

United States v. Erwin, 426 Fed. Appx 425, 437 (6th Cir. 2011) (finding that “disguis[ing] the


4
  U.S.S.G. § 2B1.1(10)(C) states that if “the offense otherwise involved sophisticated means and the defendant
intentionally engaged in or caused the conduct constituting sophisticated means, increase by 2 levels.”
5
  U.S.S.G. § 3A1.1(b)(1) states, “[i]f the defendant knew or should have known that a victim of the offense was a
vulnerable victim, increase by 2 levels.”

                                                      -9-
Case Nos. 15-4343/16-3169, United States v. Ealy


origin of funds is sufficient to support an enhancement of sophisticated means”). This is not a

simple tax return fraud case. Ealy also clearly targeted vulnerable individuals. The government

offered evidence that Ealy intentionally targeted the elderly, the young, nursing home patients,

and disabled individuals. Witness testimony supported this evidence. Ealy argues that identity

fraud victims must actually suffer “a financial loss” in order to qualify as vulnerable victims.

The Sixth Circuit has rejected this contention. See United States v. Webster, 615 Fed. Appx.

362, 364–65 (6th Cir. 2015).               Accordingly, the district court properly applied U.S.S.G.

§ 2B1.1(b)(10)(C) and § 3A1.1(b)(1) to Ealy’s Guidelines calculation.

F. Merger of Failure to Appear Counts

         Ealy claims that the district court in his 2015 bench trial erred by disposing of his claim

of multiplicity of counts through merger instead of dismissal. “Multiplicity” is charging a single

offense in more than one count in an indictment, resulting in a double jeopardy problem. United

States v. Lemons, 941 F.2d 309, 317 (5th Cir. 1991). Here, it does not appear that the counts

were multiplicitous, as each of Ealy’s “failure to appear” charges required a “proof of fact” that

the others did not.6         See United States v. Swafford, 512 F.3d 833, 844 (6th Cir. 2008).

Furthermore, this Court has held that merger is an appropriate remedy when counts are

multiplicitous. See id. As merger was an appropriate precaution for the district court to take,

Ealy’s claim fails.

G. Reasonableness of Sentence in Failure to Appear Conviction

         Finally, Ealy claims that the district court in the 2015 bench trial erred by miscalculating

the Guidelines range in sentencing Ealy for his failure to appear conviction. Again, we review


6
  Courts use the “Blockburger test” to determine if multiplicity exists by requiring a unique proof of fact in each
individual charge. See Blockburger v. United States, 284 U.S. 299, 304 (1932); see also Swafford, 512 F.3d at 844.
Ealy was charged with three counts of failure to appear because he did not appear on three different days of his trial.
See United States v. Dudeck, 657 F.3d 424, 427 (6th Cir. 2011).

                                                        - 10 -
Case Nos. 15-4343/16-3169, United States v. Ealy


the procedural reasonableness of sentences, including Guidelines calculation, under an abuse of

discretion standard. United States v. Taylor, 800 F.3d 701, 712 (6th Cir. 2015). Ealy claims that

the district court did not properly consider his convictions using the “total punishment” approach

in calculating his range. The district court calculated Ealy’s range for his Failure to Appear

conviction to be 33-41 months. He was sentenced to 24 months.

        Ealy’s argument is without merit. His real claim is that the court misapplied the U.S.S.G.

§ 3C1.3 “Committing Offenses While on Bond” enhancement to his 2014 jury trial convictions

when calculating his “hypothetical Guidelines range,” to see what his range would have been if

both trials had occurred together.7 However, this argument just attempts to distract from the fact

that Ealy’s actual advisory range in this case was 33-41 months, and the court sentenced him to

24 months–below the range.

                                              III. Conclusion

        All of Ealy’s arguments in both cases fail. As Ealy’s fraud case is not remanded, it is

unnecessary to consider Ealy’s argument that the case should be assigned to a different judge on

remand.

        We AFFIRM the judgment of the district court in the 2014 jury trial. We AFFIRM the

judgment in the 2015 bench trial.




7
 That hypothetical advisory range was calculated by the district court to be 121-151 months. The court found this
calculation “instructive” in sentencing, not conclusive.

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