               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0656n.06

                                       Case No. 16-1839

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Nov 28, 2017
BERNICE BROWN,                                       )                     DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )        ON APPEAL FROM THE
v.                                                   )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE EASTERN
UNITED STATES OF AMERICA,                            )        DISTRICT OF MICHIGAN
                                                     )
       Defendant-Appellee.                           )
                                                     )
                                                     )                             OPINION


BEFORE:       COLE, Chief Judge; McKEAGUE and STRANCH, Circuit Judges.

       COLE, Chief Judge. Bernice Brown is a federal prisoner serving a 151-month sentence

for her role in a multi-million dollar healthcare fraud. During the course of her district court

proceedings, Brown cycled through five attorneys: two that the court appointed under the

Criminal Justice Act (“CJA”) and three that Brown privately retained. After Brown’s last-

retained counsel filed a notice of appeal, Brown wrote a letter to this court stating “I will be

filing my Appeal Pro Bono [sic], until I am able to select another attorney or be granted a Court

Appointed Attorney for my case. . . . I will keep the court updated as to when I retain new

counsel and/or obtain an appointed legal representative.” (No. 10-2668, R. 37.) Brown then

proceeded pro se in her appeal, which was denied.
Case No. 16-1839, Brown v. United States


       Brown now appeals the denial of her motion to vacate her sentence under 28 U.S.C.

§ 2255 on the grounds that she was denied her constitutional right to appointed counsel on

appeal. The district court concluded that Brown was not denied that right because she was not

indigent: she retained private counsel to represent her and her letter indicated she could retain

other counsel. We AFFIRM.

                                          I. BACKGROUND

       Brown was the owner and president of Wayne County Therapeutic, Inc., a clinic that

provided outpatient therapy services and submitted over twenty-four million dollars in fraudulent

billings to Medicare.

       On June 24, 2009, an indictment was unsealed charging Brown and codefendant Daniel

Smorynski with conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349 and six

counts of healthcare fraud and aiding and abetting in violation of 18 U.S.C. § 1347 and

18 U.S.C. § 2. Brown’s first retained counsel, G. Whitney McRipley, entered an appearance the

same day. He represented Brown for her arraignment but was terminated within a month.

A superseding indictment was filed, which added three counts of healthcare fraud and aiding and

abetting.

       On March 26, 2010, the district court appointed Brown counsel under the CJA. The order

stated that “Brown qualifies for the appointment of counsel under the [CJA]” until “the

appointment is terminated by (1) Order of the Court, (2) appointment of substitute counsel, or

(3) appearance of retained counsel.” (R. 71, PageID 216.) A month later, Brown moved to

terminate that counsel as well.

       The district court appointed Fred Walker as substitute CJA counsel in May 2010. Walker

represented Brown throughout her trial, which ended in a jury verdict of guilty on all counts.



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Case No. 16-1839, Brown v. United States


Like the others, Walker’s representation did not last long; a few weeks later, Brown moved to

terminate his services for ineffective assistance of counsel. (R. 113, PageID 835.) The district

court’s order stated that Brown “has been informed of her responsibility to either obtain counsel

for further proceedings or represent herself.” (R. 154, PageID 1650.)

       Brown thereupon retained Lloyd Johnson, who filed his appearance on August 25, 2010.

Unfortunately, Johnson passed away about a month later. When Brown indicated she was

making arrangements for new counsel, the district court noted that “[t]he alternative is to have

another attorney assigned, which would be like your third or fourth.” (R. 230, PageID 3582.)

       Brown then retained Dionne Webster-Cox, who entered her appearance on October 28,

2010, and represented Brown at sentencing. The district court sentenced Brown to 151 months of

imprisonment, three years of supervised release, $6,721,272.30 restitution, and $1,000 in special

assessments. Webster-Cox filed Brown’s notice of appeal and paid for her transcripts and filing

fees. But on March 24, 2011, Webster-Cox moved to withdraw because “[her] services were

terminated.” (No. 10-2668, R. 30.)

       In its order granting Webster-Cox’s withdrawal, the clerk’s office requested a status

report from Brown and Smorynski “advising if they intend to retain new counsel or represent

themselves on appeal.” (No. 10-2668, R. 32.) In a letter dated April 9, 2011, Brown responded:

       I wish to notify the Court that I will be filing my Appeal Pro bono [sic], until I am
       able to select another attorney or be granted a Court Appointed Attorney for my
       case. This letter to your office being submitted as my written status report with
       the court, as required by May 4th, 2011. Please note the above-referenced
       information and I will keep the court updated as to when I retain new counsel
       and/or obtain an appointed legal representative.

(No. 10-2668, R. 37.) Brown did not update the court and filed her appellant’s brief pro se. This

court affirmed her conviction and sentence on November 5, 2012.




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Case No. 16-1839, Brown v. United States


       Brown filed a pro se motion to vacate her sentence under 28 U.S.C. § 2255 raising

several claims, including that Brown was denied her constitutional right to appointed counsel on

appeal. The district court rejected all of her claims. The court found that Brown did not have a

right to appointed counsel on appeal because she was not indigent, but granted a certificate of

appealability on that issue.

       Brown was appointed counsel for this appeal.

                                              II. ANALYSIS

       Brown’s motion for habeas corpus relief under § 2255 must allege: (1) an error of

constitutional magnitude, (2) a sentence imposed outside the statutory limits, or (3) an error of

fact or law that was so fundamental as to render the entire proceeding invalid. Nichols v. United

States, 563 F.3d 240, 250 (6th Cir. 2009) (citation omitted). Brown alleges a constitutional

error: that she was denied her right to appointed counsel on direct appeal. See Douglas v.

California, 372 U.S. 353 (1963); Halbert v. Michigan, 545 U.S. 605 (2005). The denial of this

right is a structural error that does not require a showing of prejudice to obtain relief. See United

States v. Detloff, 794 F.3d 588, 594 (6th Cir. 2015). But “absent a constitutional right, [Brown]

has no claim.” Nichols, 563 F.3d at 250. The parties agree that Brown’s constitutional right to

appointed counsel depends on whether she was indigent.

       In habeas proceedings, we review a district court’s legal conclusions de novo and its

factual findings for clear error. Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013). The

district court’s determination of non-indigence is a factual finding reviewed for clear error.

“‘Clear error’ occurs only when we are left with the definite and firm conviction that a mistake

has been committed. If there are two permissible views of the evidence, the factfinder’s choice




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Case No. 16-1839, Brown v. United States


between them cannot be clearly erroneous.” United States v. Kellams, 26 F.3d 646, 648 (6th Cir.

1994) (citation omitted).

       The district court determined that Brown was not indigent because she retained counsel.

Brown appeared with privately retained counsel three times throughout the proceedings.

McRipley represented Brown in her arraignment, Johnson represented her briefly after trial, and

Webster-Cox represented her during sentencing and the start of her appeal. Brown did not claim

she was unable to pay them.1 Even after Johnson unexpectedly passed away, and the district

court reminded Brown that “the alternative is to have another attorney assigned,” Brown retained

Webster-Cox. (R. 230, PageID 3582.) Brown’s subsequent letter to this court suggested she

could afford private counsel—as she concluded, “I will keep the court updated as to when I

retain new counsel and/or obtain an appointed legal representative.” (No. 10-2668, R. 37.)

       We have previously found that the appearance of privately retained counsel raises a

“serious question” as to whether a defendant is indigent. United States v. Iles, 906 F.2d 1122,

1134 (6th Cir. 1990). “When there is representation by privately retained, non-appointed

counsel . . . the defendant himself achieves the precise objective set forth in the cases

proclaiming that an indigent is entitled to have the state furnish that which he cannot

afford: counsel to represent him.” United States ex rel. O’Brien v. Maroney, 423 F.2d 865, 869

(3d Cir. 1970); see United States v. Aloi, 9 F.3d 438, 443–44 (6th Cir. 1993).




1
 Brown states, for the first time on appeal and without substantiation, that she made “financial
arrangements” with both Johnson and Webster-Cox based on the expected proceeds of a civil
suit they would file on her behalf. Appellant’s Mot. for Appointment of Counsel at 1. Even if we
accepted this waived argument, “funds [that] will not become available for payment until some
future date” are evidence of financial ability to afford counsel. See United States v. Wilson,
597 F.3d 353, 360 (6th Cir. 2010). Indeed, two different attorneys apparently found the
arrangement sufficient to represent Brown.
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Case No. 16-1839, Brown v. United States


       Other courts have applied the same reasoning. In United States v. Austin, the Fifth Circuit

considered whether a criminal defendant previously represented by retained counsel was entitled

to appointed counsel under the CJA. 812 F.3d 453 (5th Cir. 2016). In a much less ambiguous

letter than Brown’s, the defendant wrote to the court expressing his concerns about his

representation and “asking the court to appoint new counsel as [he] has exhausted all of [his]

resources.” Id. at 455. The court explained that a request for appointed counsel must specify

financial inability to obtain counsel. Id. at 456. Like Brown, the defendant “had already retained

counsel and therefore could not allege that he lacked the funds to obtain a lawyer. [He] does not

state in his letter that he either owed money to [his counsel] or that he could not pay [him] any

sum that was owed.” Id. The court accordingly concluded that he did not show he was eligible

for appointed counsel. Id.

       Brown’s strongest argument in support of her indigence is that she was previously

appointed CJA counsel. The CJA authorizes district courts to appoint counsel “for any person

financially unable to obtain adequate representation.” 18 U.S.C. § 3006A(a). But the standard of

financial inability is “something less than indigency or destitution.” United States v. Harris,

707 F.2d 653, 660 (2d Cir. 1983). The record here does not clarify the basis for the district

court’s finding of financial eligibility for appointed counsel, as might otherwise provide support

for a finding of indigence. For example, Brown did not submit the CJA form financial affidavit

typically used to prove financial inability to pay. See United States v. Murphy, 469 F.3d 1130,

1135 (7th Cir. 2006). Nor did the district court make factual findings in the record as part of its

“appropriate inquiry that the person is financially unable to obtain counsel.” 18 U.S.C.

§ 3006A(b); see United States v. Parker, 439 F.3d 81, 94–95 (2d Cir. 2006).




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Case No. 16-1839, Brown v. United States


       Even assuming financial eligibility under the CJA is equivalent to indigence, the district

court was not bound to that finding. “What the [CJA] gives with one hand to a criminal

defendant ‘financially unable’ to pay for legal services it takes away with the other if the

defendant turns out to be ‘financially able’ to obtain counsel.” Wilson, 597 F.3d at 357. A

defendant’s financial circumstances may change or conflict with earlier reports about her ability

to pay. See id. at 355, 357. The CJA authorizes the court to terminate appointed counsel or order

repayment “at any time after the appointment of counsel” in such a situation. 18 U.S.C.

§ 3006A(c). Indeed, the district court’s order appointing counsel here expressly provided for

such a change in circumstances in terminating upon “appearance of retained counsel.” (R. 71,

PageID 216.)

       Based on this record, the district court did not clearly err in finding that Brown was not

indigent. Even “[i]f there are two permissible views of the evidence”—that Brown was not

indigent because she covered the costs of her counsel, or that she was indigent because the court

agreed to cover these costs at other stages—“the factfinder’s choice between them cannot be

clearly erroneous.” See Kellams, 26 F.3d at 648 (citation omitted). We accordingly defer to the

district court’s factual finding that Brown was not indigent and thus did not have a right to

appointed counsel on direct appeal.

                                         III. CONCLUSION

       For these reasons, we affirm the district court’s order denying Brown’s § 2255 motion.




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