     Case: 12-30807   Document: 00512421434    Page: 1   Date Filed: 10/28/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                             October 28, 2013

                                No. 12-30807                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff – Appellee
v.

CHIKENNA D. JONES; HENRY L. JONES,

                                         Defendants – Appellants



                             consolidated with
                               No. 12-30808


UNITED STATES OF AMERICA,

                                         Plaintiff – Appellee
v.

CHIKENNA D. JONES,

                                         Defendant – Appellant



                Appeals from the United States District Court
                    for the Middle District of Louisiana
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                             Nos. 12-30807 & 12-30808

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
DeMOSS, Circuit Judge:
       Henry Jones appeals the district court’s denials of his motions to dismiss
an indictment on double jeopardy and multiplicity grounds. Chikenna Jones
appeals the denials of motions to substitute counsel she filed in separate cases.
For the reasons stated below we AFFIRM.
                                   BACKGROUND
       Henry Jones (“Henry”) and Chikenna Jones (“Chikenna”) engaged in
Medicare fraud for years. The government indicted Henry in three separate
cases: United States v. Nnanta Felix Ngari, et al., (“the Ngari case”); United
States v. Henry L. Jones, et al., (“the Jones case”); and United States v. Shedrick
O. McKenzie, et al., (“the McKenzie case”). The government indicted Chikenna
in the Jones and McKenzie cases.
       The following excerpts from the indictment in the McKenzie case1 provide
relevant background for all three cases:
       1.    The Medicare Program (“Medicare”) was a federal program
       that provided free or below-cost health care benefits to certain
       individuals, primarily the elderly, blind, and disabled . . . .
       Individuals who receive benefits under Medicare were commonly
       referred to as Medicare “beneficiaries.”

       ....




       1
         Indictment, United States v. Shedrick O. McKenzie, et al., No. 3:11-cr-9 (M.D. La.
Feb. 2, 2011) ECF No. 1.

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                         Nos. 12-30807 & 12-30808

 3.    Part B of the Medicare Program was a medical insurance
 program that covered, among other things, certain durable medical
 equipment (“DME”).2

 4.     For Louisiana beneficiaries, Medicare Part B insurance
 covering DME and related health care benefits, items, and services
 was administered by Cigna Government Services (“Cigna”) . . . .
 Among Cigna’s responsibilities, it received, adjudicated, and paid
 the claims submitted to it by Medicare beneficiaries, physicians, and
 suppliers of health care items and services.

 5.    DME companies, physicians, and other health care providers
 that sought to participate in Medicare Part B and bill Medicare for
 the cost of DME and related benefits, items, and services were
 required to apply for and receive a “supplier number.” The supplier
 number allowed a DME company to submit bills, known as “claims,”
 to Medicare to obtain reimbursement for the cost of DME and
 related health care benefits, items, and services that a DME
 company had supplied to beneficiaries.

 6.    To receive payment from Medicare, a DME company, using its
 supplier number, would submit a health insurance claim form . . . .
 The [claim form] required DME companies to provide certain [claim
 specific information].

 7.    Medicare, through Cigna, would generally pay a substantial
 portion of the cost of the DME or related health care benefits, items,
 and services if they were medically necessary and ordered by
 licensed doctors or other licensed, qualified health care providers.
 8.    Payments under Medicare Part B were often made directly to
 the DME company. For this to occur, the beneficiary would assign
 the right of payment to the DME company or other health care
 provider. Once such an assignment took place, the DME company



 2
     Examples of DME include power wheel chairs, back and knee braces, and orthotics.


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                              Nos. 12-30807 & 12-30808

       or other health care provider would assume the responsibility for
       submitting claims to, and receiving payments from, Medicare.
       The Ngari indictment3 included one count of Conspiracy to Commit Health
Care Fraud in violation of 18 U.S.C. § 1349 “[b]eginning at least on or about
December 2, 2003, and continuing through on or about March 7, 2009,” and one
count of Conspiracy to Defraud the United States and to Pay Health Care
Kickbacks in violation of 18 U.S.C. § 371 “[b]eginning at least on or about March
16, 2004, and continuing through at least on or about January 26, 2007[.]”
       The Ngari indictment focused on a business called Unique Medical
Solution, Inc. (“Unique”) which was allegedly owned and operated by Nnanta
Felix Ngari (“Felix Ngari”). The government alleged that Unique “was
purportedly engaged in the business of providing DME to Medicare
beneficiaries” and that “Unique had a Medicare provider number, and was
eligible to receive reimbursement from Medicare for DME that was supplied to
beneficiaries if it was medically necessary.” The government alleged that Sofjan
Lamid “was a physician . . . who wrote prescriptions ordering medically
unnecessary DME that served as the basis for certain of Unique’s claims to
Medicare.” The government also alleged that Henry and Ernest Payne were
“patient recruiter[s] who referred beneficiaries to Unique so that claims for
medically unnecessary DME could be filed with Medicare.” The government
asserted that Felix Ngari, Henry, and Ernest Payne “would agree to pay
kickbacks . . . in return for the referral of Medicare beneficiaries whose names
would be used to submit claims for medically unnecessary DME.” Henry was
convicted of both conspiracy counts in the Ngari case.

       3
        Indictment, United States v. Nnanta Felix Ngari, et al., No. 3:10-cr-60 (M.D. La. Apr.
28, 2010), ECF No. 1.

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                              Nos. 12-30807 & 12-30808

       The Jones case was the next case to be filed. In relevant part, the
superseding indictment in the Jones case4 alleged a conspiracy which violated
18 U.S.C. § 1349 “[b]eginning on or about June 24, 2004, and continuing through
on or about November 22, 2009,” and a conspiracy which violated 18 U.S.C. § 371
“[b]eginning at least on or about June 24, 2004, and continuing through at least
on or about October 8, 2009[.]” The superseding indictment focused on four
entities, Healthcare 1, LLC (“Healthcare 1”); Lifeline Healthcare Services, Inc.
(“Lifeline”); Medical 1 Patient Services, LLC (“Medical 1”); and Rose Medical
Equipment, Inc. (“Rose Medical”), which were “purportedly engaged in the
business of providing DME to Medicare beneficiaries[,] . . . had [] Medicare
provider number[s],” and were “eligible to receive payments from Medicare for”
the medically necessary DME they provided.                The government alleged that
Henry and Chikenna were “corporate officer[s] for and operator[s] of Healthcare
1, Lifeline, and Medical 1[,]” and that they “purchase[d] and t[ook] control of
Rose Medical.” The government asserted that Sofjan Lamid and Jo Francis were
doctors who “would provide prescriptions to patient recruiters for medically
unnecessary DME[.]” The government alleged that Henry and Chikenna “paid
kickbacks to patient recruiters . . . in exchange for names and billing information
of Medicare beneficiaries, as well as fraudulent prescriptions, for the purpose of
billing the Medicare program for medically unnecessary DME[.]”                           The
government accused nine other co-defendants of working as patient recruiters
for one or a combination of Healthcare 1, Lifeline, and Medical 1.                       The




       4
        Superseding Indictment, United States v. Henry L. Jones, et al., No. 3:10-cr-104 (M.D.
La. Feb. 10, 2011), ECF No. 196.

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                             Nos. 12-30807 & 12-30808

government also accused Henry and Chikenna of submitting fraudulent
Medicare claims through Rose Medical.
       In the Jones case, Chikenna filed a motion to substitute retained counsel
for her court-appointed counsel, and the district court denied her motion.
Thereafter, both Henry and Chikenna pleaded guilty in the Jones case. Henry
did not appeal in the Jones case. Chikenna appealed the district court’s denial
of her motion to substitute counsel in the Jones case.
       The last case to be filed was the McKenzie case. In relevant part, the
indictment in the McKenzie case5 also alleged two conspiracies, one which
violated 18 U.S.C. § 1349 “[b]eginning on or about October 28, 2004, and
continuing through on or about October 25, 2010,” and another which violated
18 U.S.C. § 371 “[b]eginning at least on or about December 22, 2006, and
continuing through at least on or about May 7, 2010[.]” The indictment focused
on a business called McKenzie Healthcare Solutions, Inc. (“Solutions”). The
government alleged that “Shedrick O. McKenzie was a corporate officer for and
operator of [Solutions].” The government asserted that Jo Francis was a doctor
“who wrote prescriptions ordering medically unnecessary DME for Medicare
beneficiaries, for the purpose of having [Solutions] submit claims to Medicare
and receive payments from Medicare.” The government further alleged that
“[f]rom in or around January 2010, through at least in or around October 2010,
[Henry] was an operator of [Solutions].” The government accused Chikenna of
being “a corporate officer for and operator of [Solutions]” during the same time
period during 2010. The government also accused the pair of paying “kickbacks


       5
         Indictment, United States v. Shedrick O. McKenzie, et al., No. 3:11-cr-9 (M.D. La.
Feb. 2, 2011) ECF No. 1.

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                           Nos. 12-30807 & 12-30808

to patient recruiters . . . in exchange for the names and billing information of
Medicare beneficiaries, as well as fraudulent prescriptions, for the purpose of
billing the Medicare program for medically unnecessary DME through
[Solutions].”
        Prior to trial, Henry filed a motion to dismiss the indictment in the
McKenzie case based on double jeopardy and multiplicity grounds which the
district court denied. Thirteen days before trial in the McKenzie case, Chikenna
filed a motion to substitute retained counsel for her court appointed counsel in
both the Jones and McKenzie cases. The district court denied both motions.
Thereafter, both Henry and Chikenna were convicted by a jury in the McKenzie
case.
        After the trial in the McKenzie case, Henry filed a second motion to
dismiss which the district court denied. Henry appealed the denial of his
motions to dismiss, and Chikenna appealed the denial of her motions to
substitute.
I.      Henry’s Appeal
        Henry argues that the district court erred when it failed to dismiss his
charges in the McKenzie case. Henry’s primary argument is that his prosecution
in the McKenzie case violated the Double Jeopardy Clause of the U.S.
Constitution because the government charged him for the same conduct he was
already convicted of in the Ngari case. Henry also mentions in passing that the
charges were multiplicitous. The government denies that the charges in the
McKenzie case violated the Double Jeopardy Clause or were multiplicitous.




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                           Nos. 12-30807 & 12-30808

A.    Double Jeopardy
      “We review the district court’s denial of a motion to dismiss an indictment
on double jeopardy grounds de novo and accept the underlying factual findings
of the district court unless clearly erroneous.” United States v. Gonzalez, 76 F.3d
1339, 1342 (5th Cir. 1996) (citations omitted).
      The Fifth Amendment of the United States Constitution states in part that
no person shall “be subject for the same offence to be twice put in jeopardy of life
or limb[.]” U.S. CONST. amend. V. “The Fifth Amendment’s Double Jeopardy
Clause protects against a second prosecution for the same offense after
conviction.” United States v. El-Mezain, 664 F.3d 467, 546 (5th Cir. 2011)
(internal quotation marks and citations omitted).
      Generally, when a defendant pleads guilty, jeopardy attaches at the time
the guilty plea is accepted. United States v. Kim, 884 F.2d 189, 191-92 (5th Cir.
1989). “For a jury trial, jeopardy attaches when the jury is empaneled and
sworn.” United States v. Stricklin, 591 F.2d 1112, 1120 (5th Cir. 1979).
      Henry was a defendant in three separate cases. In the Ngari case,
jeopardy attached when the jurors were sworn on August 1, 2011. In the
McKenzie case, jeopardy attached on November 7, 2011, when the jurors were
sworn. In the Jones case, jeopardy attached when Henry’s plea was accepted on
January 12, 2012.
      Based on the timing of jeopardy attaching in these three cases, the
government argues that the Jones case could not create a double jeopardy
violation in the McKenzie case. The government’s assessment is correct. At the
time jeopardy attached in the McKenzie case, jeopardy had already attached in
the Ngari case, but jeopardy had not attached in the Jones case. Therefore, we


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                               Nos. 12-30807 & 12-30808

will examine only whether the McKenzie indictment constituted a double
jeopardy violation with respect to the conviction in the Ngari case.6
       Double jeopardy claims involve a burden shifting analysis. El-Mezain, 664
F.3d at 546 (citation omitted). “If a defendant comes forward with a prima facie
nonfrivolous double jeopardy claim,” the government must then prove by a
preponderance of the evidence that the indictments charge separate crimes. Id.
(internal quotation marks and citation omitted); United States v. Delgado, 256
F.3d 264, 272 (5th Cir. 2001). The parties do not address whether Henry has
made a prima facie non-frivolous double jeopardy claim. “The defendant can
establish a prima facie non-frivolous double jeopardy claim through indictments
or other documentation to establish the earlier charges, or even through his own
testimony.” United States v. Ellender, 947 F.2d 748, 759 (5th Cir. 1991) (citation
omitted). The record in the Ngari case clearly establishes the earlier charges.
       “In a conspiracy case, the central issue for double jeopardy purposes is
whether there was one agreement and one conspiracy or more than one
agreement and more than one conspiracy.” El-Mezain, 664 F.3d at 546 (citation
omitted).
       To determine whether the alleged conspirators entered into more
       than one agreement, we evaluate five factors: 1) time; 2) persons
       acting as co-conspirators; 3) the statutory offenses charged in the
       indictments; 4) the overt acts charged by the government or any
       other description of the offense charged that indicates the nature
       and scope of the activity that the government sought to punish in


       6
         To the extent that Henry is arguing that the Jones case is connected to both the Ngari
and McKenzie cases and therefore forms a link between the Ngari and McKenzie cases, we
reject that argument. We need not reach the issue of whether it is permissible to rely on a
third case to demonstrate a connection between two other cases because it would not change
our conclusion that the Ngari and McKenzie cases involved discrete conspiracies.

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                               Nos. 12-30807 & 12-30808

       each case; and 5) places where the events alleged as part of the
       conspiracy took place.

Delgado, 256 F.3d at 272 (citation omitted). “No one factor . . . is determinative;
rather all five factors must be considered in combination.” Id. (internal quotation
marks and citations omitted).7
1.     Timing
       The Ngari indictment alleged two conspiracies. The government alleged
that the first conspiracy ran from December 2003 to March 2009, and the second
conspiracy fell temporally within the time frame of the first conspiracy. The
McKenzie indictment alleged two conspiracies as well. The government alleged
that the first ran from October 2004 to October 2010, and the second conspiracy
fell within the time frame of the first conspiracy. At first blush, there appears
to be a major overlap between the timing of the crimes charged in the Ngari and
McKenzie indictments. But the government points out that Henry’s conduct in
the McKenzie case did not overlap temporally with his conduct in the Ngari case.
Specifically, the conspiracy in the Ngari case covered conduct only through
March 2009. But the portions of the McKenzie indictment which refer to dates


       7
                Henry cites United States v. Becker, 569 F.2d 951, 960 (5th Cir. 1978), for the
proposition that the main factors for ascertaining whether there is a single conspiracy are
“the existence of a common goal, the nature of the scheme, and an overlapping of participants
in the various dealings.” Henry also cites United States v. Ruigomez, 576 F.2d 1149, 1151 (5th
Cir. 1978), a double jeopardy case in which this court concluded there was a single conspiracy
because “the participants shared a continuing, common goal of buying and selling marijuana
for profit; the operations of the conspiracy followed an unbroken and repetitive pattern; and
the cast of conspirators remained much the same.” The five-prong test and the test advanced
by Henry are largely the same. The primary difference is that the five-prong test focuses on
the nature and scope of the conduct the government was trying to stop, but the test advocated
by Henry focuses on the goals of the conspirators. We will use the five-prong test, but, as
explained below, even if we consider the goals of the conspirators, it would not change our
conclusion.

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                            Nos. 12-30807 & 12-30808

which overlap with the dates in the Ngari indictment were directed at the
McKenzie conspirators as a group. When the McKenzie indictment focused on
the actions of Henry specifically, those actions allegedly began in January 2010.
Therefore, there is no overlap in the timing of the actions for which Henry was
charged in the Ngari and McKenzie indictments, and he was the only
conspirator who was indicted in both cases. After considering the arguments of
the parties, we find that the timing factor indicates that the Ngari and McKenzie
cases involved separate conspiracies.
2.     Co-conspirators
       As to the persons acting as co-conspirators, there were four defendants in
the Ngari case and six defendants in the McKenzie case. Henry was the only
defendant who was charged in both cases.
       The government asserts that Henry was a recruiter in the Ngari case and
a company operator in the McKenzie case and cites El-Mezain, 664 F.3d at 547,
for the propositions that the overlap of “key personnel” is more important than
the overlap of other players and that the roles played are also important. This
court has stated:
       The nature of the overlapping co-conspirators’ participation is
       relevant to finding a single conspiracy, especially when the
       co-conspirators are the central characters, or the key personnel in
       both cases. If the central figures of the cases are different, or if they
       serve different functions for purposes of the conspiracies, it is less
       likely that there is a single agreement.

El-Mezain, 664 F.3d at 547 (internal quotation marks and citations omitted).
       The district court stated that Felix Ngari “may fairly be deemed the
central figure in the [Ngari] conspiracy[,]” but on appeal Henry has not pointed
to any evidence that Felix Ngari had any involvement in the McKenzie case.

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                           Nos. 12-30807 & 12-30808

The government argues that Shedrick McKenzie was the “central organizing
figure[]” in the McKenzie case. We agree that Shedrick McKenzie was a key
figure in the McKenzie case, and Henry has failed to identify evidence that
Shedrick McKenzie was involved in the Ngari case.            Furthermore, it is
significant that Henry was indicted for being a recruiter in the Ngari case, but
he was indicted for being an operator of a corporation in the McKenzie case.
After considering the co-conspirators in the Ngari and McKenzie cases and their
alleged roles, we find that this factor indicates that there were two separate
conspiracies.
3.     The Statutory Offenses Charged in the Indictments
       Turning to the statutory offenses charged in the indictments, the statutory
conspiracy charges in the McKenzie case are identical to the statutory
conspiracy charges in the Ngari case.
       The government cites this court’s opinion in El-Mezain, which observed
that even when the charged statutory offenses charged are the same or similar,
“we must be mindful that ‘[i]t is possible to have two different conspiracies to
commit exactly the same type of crime.’” Id. at 548 (quoting United States v.
Thomas, 759 F.2d 659, 666 (8th Cir. 1985)). Ultimately, the one-hundred
percent overlap of the charged conspiracy offenses in the Ngari and McKenzie
cases causes this factor to support a finding that there was a single conspiracy.
4.     The Nature and the Scope of the Activity the Government Sought
       to Punish and the Goal of the Conspirators.
       With respect to the nature and scope of the activity the government sought
to punish in each case and the goals of the conspirators, the Ngari and McKenzie
cases are readily distinguishable.



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                              Nos. 12-30807 & 12-30808

       Henry would have us focus on the goals of the conspirators. In the district
court Henry argued that in all three cases he was “charged with causing
unnecessary DME equipment to be provided to Medicare beneficiaries . . . and
. . . paying illegal healthcare kickbacks in furtherance of that scheme” and he
asserted “[t]here was a common goal in all three charged conspiracies of
obtaining prescriptions for medically unnecessary DME by paying kickbacks to
recruiters and physicians in order to bill Medicare for that equipment.”8
Furthermore, Henry argues that the government admitted there was a single
conspiracy when it made certain statements such as the “somewhat overlapping
nature” of the indictment. Appellant’s Br. at 6-7.
       The government argues that the goals of the conspiracies were different
because the goal of the Ngari conspiracy was “the enrichment of [Felix] Ngari
and the persons associated with Unique[,]” and the goal of the McKenzie
conspiracy was “the enrichment of [Shedrick] McKenzie and the persons
associated with . . . [Solutions][.]” Appellee’s Br. at 15. The government further
argues that the Medicare fraud charged in the McKenzie case had gone on for
years before Henry became involved with that conspiracy and that Henry’s
“joining the conspiracy at [Solutions] in 2010 did not transform those two
independent conspiracies into a single conspiracy.” Id. at 19. The government
disputes Henry’s suggestion that it admitted that there was a single conspiracy
and points out that the cited evidence references the Jones and McKenzie cases.
The government cites United States v. Felix, 503 U.S. 378, 386 (1992), where the
Supreme Court stated: “[O]ur precedents hold that a mere overlap in proof


       8
         Memorandum in Support of Defendant Henry Jones’ Motion to Dismiss at 8, 12,
United States v. Shedrick O. McKenzie, et al, No. 3:11-cr-9, (M.D. La. Dec. 29, 2011), ECF No.
179-1.

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                          Nos. 12-30807 & 12-30808

between two prosecutions does not establish a double jeopardy violation.”
      First, we address Henry’s claim that the government admitted there was
a single conspiracy. As the government points out, the portions of the record
which Henry cites for the proposition that the government admitted that there
was a single conspiracy actual refer to connections between the Jones and
McKenzie cases.     Crucially, those portions of the record do not address
connections between the Ngari and McKenzie conspiracies. See ROA at 340,
377. In short, Henry has not identified any evidence that the government
admitted the Ngari and McKenzie cases involved the same conspiracy.
      Next, we address the goals of the conspiracies. Henry would have us
characterize the goals of the conspiracies too broadly. We cannot divorce our
evaluation of the goals of the conspiracies from the factual allegations in the
indictments. The goal in Ngari was to enrich those associated with Unique and
the goal in McKenzie was to enrich those associated with Solutions. This view
is supported by the reality that Henry was not involved with the acts charged in
the McKenzie case until that conspiracy had been ongoing for years. We find
that the goals of the Ngari and McKenzie conspiracies were different.
      Similarly, the nature and scope of the conduct the government was trying
to punish suggest that there were two different conspiracies. Although the
nature of the conduct was much the same, the scope of the two conspiracies was
different. In the Ngari case the government was targeting a conspiracy which
centered on Unique, but in the McKenzie case the government was targeting a
conspiracy which centered around Solutions.




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                           Nos. 12-30807 & 12-30808

       Whether we focus on the goals of the conspirators or the conduct the
government was targeting we conclude that both analyses reach the same result.
This factor indicates that there were two separate conspiracies.
5.     Place Where the Events Alleged as part of the Conspiracies
       Occurred
       The government admits that “the events primarily transpired in the same
general area of Louisiana” and relies on the other factors to show that there are
different conspiracies. Appellee’s Br. at 14. This factor supports a finding that
there was a single conspiracy.
6.     Double Jeopardy Conclusion
       After considering each of the five factors, only two factors, the location of
the events and the statutory crimes charged, support a finding that there was
a single conspiracy. The timing, the participants, the goals of the conspirators,
and the nature of the conduct the government was trying to stop, support a
finding that there were two conspiracies. We find that the conspiracies in the
Ngari and the McKenzie cases were two separate conspiracies. Therefore, the
government’s prosecution of Henry in the McKenzie case after he was convicted
in the Ngari case, did not constitute a double jeopardy violation.

B.     Multiplicity
       We now consider whether the McKenzie indictment violated the
prohibition on multiplicity. “We review issues of multiplicity de novo.” United
States v. Reedy, 304 F.3d 358, 363 (5th Cir. 2002) (citation omitted).
“Multiplicity is the charging of a single offense in several counts. The chief
danger raised by a multiplicitous indictment is the possibility that the defendant
will receive more than one sentence for a single offense.” Id. (internal quotation
marks and citations omitted).

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                           Nos. 12-30807 & 12-30808

      Henry asserts in passing that by charging him for separate conspiracies
the government has violated the prohibition on multiplicity. The government
cites Albernaz v. United States, 450 U.S. 333 (1981), for the proposition that the
McKenzie indictment is not multiplicitous because each conspiracy statute
contains an element which is not contained in the other statute. In Albernaz,
the Supreme Court stated:
      The test articulated in Blockburger v. United States, 284 U.S. 299
      (1932), serves a generally similar function of identifying
      congressional intent to impose separate sanctions for multiple
      offenses arising in the course of a single act or transaction. In
      determining whether separate punishment might be imposed,
      Blockburger requires that courts examine the offenses to ascertain
      ‘whether each provision requires proof of a fact which the other does
      not.’ Id., at 304. As Blockburger and other decisions applying its
      principle reveal . . . the Court’s application of the test focuses on the
      statutory elements of the offense. If each requires proof of a fact that
      the other does not, the Blockburger test is satisfied, notwithstanding
      a substantial overlap in the proof offered to establish the crimes.
Id. at 337-38 (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)).
      The McKenzie indictment charges Henry with conspiracy under both 18
U.S.C. § 371 and 18 U.S.C. § 1349.            Section 371 contains an overt-act
requirement, Whitfield v. United States, 543 U.S. 209, 214 (2005), but Section
1349 does not contain an overt-act requirement, United States v. Ellis, No.
H-10-416-S, 2011 WL 3793679, *5 (S.D. Tex. Aug. 25, 2011). Furthermore, 18
U.S.C. § 1349 prohibits conspiring “to commit any offense under this chapter[,]”
but Henry’s 18 U.S.C. § 371 conviction was based on a conspiracy to violate a
section of Title 42. We find that there was no multiplicity violation in this case.




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                              Nos. 12-30807 & 12-30808

II.     Chikenna’s Appeals
        On appeal, Chikenna contends that the district court violated her
constitutional right to choose her retained counsel when it denied her motions
for substitution of counsel. Chikenna asserts that since the Supreme Court’s
decision in United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), “this [c]ourt
has not had occasion . . . to address the competing interest between the district
court’s calendar and the defendant’s right to the counsel of his choice[.]”
Appellant’s Br. at 14. She urges this court to follow the example of the Seventh
Circuit in United States v. Sellers, 645 F.3d 830, 832-34 (7th Cir. 2011), where
that court reversed a district which did not grant a continuance which would
have enabled the defendant to be represented by substitute counsel. The
government argues that a defendant’s choice of counsel is not absolute, and it
must be balanced against other concerns. The government asserts that the trial
court did not abuse its discretion when it denied Chikenna’s motions for
substitution. Before turning to the applicable law, we review the hearing that
occurred in the district court.
A.      Hearing in the District Court
        On October 25, 2011, thirteen days before her trial was set to begin in the
McKenzie case, Chikenna filed motions in both the McKenzie and Jones cases
to    substitute   retained     counsel,    Stephen      Spring    (“Spring”),     for   her
court-appointed counsel, Michael Fiser (“Fiser”). On October 27, 2011, the
district court held a hearing regarding Chikenna’s motions to substitute
counsel.9


        9
        Transcript of October 27, 2011 Hearing on Chikenna Jones’s Motion to Substitute
Counsel, United States v. Shedrick O. McKenzie, et al, No. 3:11-cr-9 (M.D. La. Oct. 4, 2012),
ECF No. 287.

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                           Nos. 12-30807 & 12-30808

      At the hearing, the district court inquired into why Chikenna sought to
substitute counsel. Chikenna responded that Fiser had not done anything and
he “ha[d]n’t talked to any witnesses, he ha[d]n’t contacted anyone, as far as [she
was] aware of. The only thing [he had] done that [she was] aware of is talk to
the government.” The district court then informed Chikenna that it could
“disprove some of that because [Fiser] sat through a trial – in an earlier trial
involving this matter, a good portion of it.”
      Further inquiry revealed that Chikenna had failed to even ask Mr. Fiser
if he had interviewed witnesses. Although, Chikenna stated that Fiser had not
asked her for names of potential witnesses.
      For his part, Fiser testified that he had “been working on the case for
about a year going through thousands and thousands of pages of discovery of
witness statements[.]” Mr. Fiser further asserted that he had shared relevant
information with Chikenna. Additionally, Mr. Fiser informed the court that he
had asked Chikenna about witnesses, but she had identified witnesses that were
parties to the case. Fiser explained that he had declined to talk to those
witnesses directly because they were represented by counsel. He explained that
he had “a pretty good feel for what everybody [was] going to say at trial.”
      The district court then addressed Chikenna and stated: “[Y]ou understand
that this matter begins a week from this coming Monday?” When Chikenna
responded affirmatively, the district court continued:
      And do you understand that in no way can a new counsel be brought
      up to speed to try this case in a week? Because I can tell you from,
      you know, having gone through a prior trial in this matter, I am
      familiar with the multitude of documents and things that are
      available and in having pre-trial hearings in this case, that for – it
      would take more than a week for a new counsel to begin to even look
      at the documents that apply to this case.

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                           Nos. 12-30807 & 12-30808

      This trial is schedule for something like a week, so there are many
      witnesses – two weeks. There are many witnesses, there are many
      documents, and in no way could anyone be prepared to represent
      you adequately in that time. So that would mean that I would have
      to – if I allow a new counsel to enroll – to continue this trial and I’m
      not inclined to do that.
      The district court then briefly reviewed the events of the previous eight
months in the McKenzie case and asked why Chikenna had waited so long to
request new counsel. Chikenna responded, that she had sought to have Spring
become her co-counsel, she “believe[d], sometime in August, and nothing
transpired with that as well.”
      The government asserted that due to Spring’s prior involvement in the
case, allowing him to represent Chikenna could create a conflict.                The
government further articulated several specific ways it would be prejudiced by
a continuance.
      Spring then testified that he had contacted Fiser in August about joining
Chikenna’s legal team and had followed up on that email on October 14, 2011.
Spring stated that when Fiser responded, Fiser told Spring that the CJA rules
would not allow him to enter the case in the manner Spring was attempting to
enter the case. Spring also acknowledged that “it’s a short notice and there are
thousands of pages of discovery.”
      After hearing from another attorney from Spring’s firm and counsel for
Henry, the district court stated that it was evaluating the motion to substitute
under Gandy v. State of Alabama, 569 F.2d 1318 (5th Cir. 1978). The district
court explained that it was required to weigh and balance “the premise that a
defendant is and should be allowed to have representation of counsel of her
choice” with “an equally desirable public need for the efficient and effective


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                              Nos. 12-30807 & 12-30808

administration of criminal justice.” The district court explained the factors it
had to weigh were “the accused[’s] rights, such as those relating to a speedy
trial, to an adequate opportunity to prepare the defense, to confront and
investigate the witnesses who may testify, and to the court’s docket, the
availability of prosecution witnesses . . . [and the] impact [on] other defendants
. . . .”
           The district court noted that due to the “vast amount of materials and
witnesses” a continuance would be necessary if new counsel was allowed to enter
the case. The district court then stated it had “not been shown any evidence
that [Fiser] ha[d] not done what a competent and effective counsel would do.”
The district court observed that there appeared to be a disconnect between Fiser
and Chikenna on what Fiser had done and that her complaints were based on
supposition not “anything of a factual nature.” The district court noted the
government’s statement regarding lengthy preparation for the trial, its own
concern that a delay could compromise the availability of a key witness, and the
fact that the court’s schedule would require a continuance of several months.
The district court then denied Chikenna’s motions to substitute counsel.
B.         Analysis
           The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.”       U.S. CONST. amend. VI.    Included in that right is the “right of a
defendant who does not require appointed counsel to choose who will represent
him.” Gonzalez-Lopez, 548 U.S. at 144 (citation omitted). There are limits on
this right. The Supreme Court cautioned:
           Nothing we have said today casts any doubt or places any
           qualification upon our previous holdings that limit the right to

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                          Nos. 12-30807 & 12-30808

      counsel of choice . . . . We have recognized a trial court’s wide
      latitude in balancing the right to counsel of choice against the needs
      of fairness and against the demands of its calendar. The court has,
      moreover, an independent interest in ensuring that criminal trials
      are conducted within the ethical standards of the profession and
      that legal proceedings appear fair to all who observe them.
Id. at 151-52 (internal quotation marks and citations omitted). Therefore, the
district court was required to balance Chikenna’s right to counsel of choice
against the needs of fairness and the demands of its calendar. Although the
district court based its decision on a balancing test articulated by this court in
Gandy instead of the balancing test articulated by the Supreme Court in
Gonzalez-Lopez, as explained below, we are satisfied that the district court
adequately addressed the Gonzalez-Lopez factors.
      Chikenna and the government disagree on the standard of review that
applies to her appeal of the district court’s refusal to allow her to substitute
counsel. Chikenna argues that a de novo standard applies, and cites United
States v. Simpson. In Simpson, this court stated: “Although we review Sixth
Amendment claims de novo, if that Amendment has not been violated, the trial
court’s refusal to appoint substitute counsel is reviewed for an abuse of
discretion.” 645 F.3d 300, 307 (5th Cir. 2011) (citation omitted). The government
argues that an abuse of discretion standard applies, and cites several cases
including Gonzalez-Lopez. As the government points out, the Supreme Court’s
reference to the “trial court’s wide latitude” in Gonzalez-Lopez is incompatible
with de novo review. We agree that the balancing test articulated in Gonzalez-
Lopez is inconsistent with de novo review and will review the district court’s
decision to disallow the substitution of counsel for an abuse of discretion.




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                          Nos. 12-30807 & 12-30808

1.     Counsel of Choice
       Regarding Chikenna’s counsel of choice, it is clear that Chikenna wanted
Spring to represent her. The district court indicated that it started its analysis
with a premise that Chikenna should be allowed to have the representation of
her choice. The district court inquired into her motivation behind this request,
and she explained that she thought Fiser was not preparing for the case
properly. Although the district court did not share Chikenna’s concerns about
Fiser, the constitutional right to an attorney of one’s choice does not require a
defendant to make a well informed decision. Cf. Gonzalez-Lopez, 548 U.S. at
148. Chikenna wanted Spring to represent her, and that request should have
been honored unless it was outweighed by the needs of fairness and the court’s
calendar. Therefore, the inquiry into Chikenna’s motivation for her request for
a different attorney is more appropriately analyzed as part of the needs of
fairness inquiry.
       It is worth emphasizing, however, that the district court explicitly
considered Chikenna’s reason for wanting new counsel. This distinguishes the
present case from the situation considered by the Seventh Circuit in United
States v. Sellers, upon which Chikenna relies. In reversing the district court in
Sellers, the Seventh Circuit noted the district court’s failure to consider the
defendant’s rationale for wanting a different attorney. 645 F.3d at 838-39.
2.     Fairness
       Turning to the needs of fairness, there are several reasons why the needs
of fairness cut against allowing a substitution in this case. First, the district
court found that allowing Spring to substitute in as counsel would have required
a continuance, and the government articulated specific ways it would be
prejudiced by such a continuance.       This was a complicated case and the

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                           Nos. 12-30807 & 12-30808

government indicated that it had spent a significant amount of time and money
preparing for the trial and that it would incur significant additional costs if the
trial were continued. Although Chikenna argued that she could be tried when
the trial of another co-defendant whose trial had already been continued was
held, the government asserted that that co-defendant was planning to plead
guilty. Thus, if Chikenna’s trial had been continued it would have likely caused
the government to incur significant additional costs.
      Second, the district court asked Chikenna why she was dissatisfied with
Fiser’s representation and determined that her concerns about Fiser were
suppositional and “not based on anything of a factual nature.” Chikenna does
not challenge that assessment on appeal or argue that Fiser was unprepared to
represent her.    Furthermore, when pressed at oral argument, Chikenna’s
counsel was unable to identify any unfairness Chikenna had suffered as a result
of the denial of the substitution beyond being deprived of her choice of counsel.
      Third, considering the protracted nature of the McKenzie case, Chikenna
waited until late in the case to request the substitution. The record indicates
that Chikenna knew she wanted Spring to aid in her representation as early as
August 2011, but she did not file her motions to substitute until October 25,
2011. Because Chikenna has not directed us to evidence that she diligently
pursued a substitution of counsel in that period, it is not unfair to hold the delay
in seeking the substitution against her.
      Fourth, the district court was concerned that a continuance could
compromise the availability of a key witness, Dr. Francis, who had been in and
out of the hospital. Although Chikenna points out that the government did not
call Dr. Francis at trial, she does not argue that anyone knew that Dr. Francis
would not be called at the time the district court considered the motion to

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                            Nos. 12-30807 & 12-30808

substitute counsel. The district court’s concern for the availability of a key
witness further suggests that its refusal to allow the substitution supported the
needs of fairness.
       After considering the circumstances surrounding Chikenna’s motion to
substitute, we find that the needs of fairness cut against allowing a substitution.
3.     The District Court’s Calendar
       At the substitution hearing, the district court explained that it was
persuaded that a substitution of counsel would necessitate a continuance due to
the vast quantity of material a new attorney would need to review.
Furthermore, the Court explained that it would be several months before it could
try the case if it were continued.
       Chikenna does not deny that allowing Spring to substitute in as her
counsel would have necessitated a continuance. Instead, she criticizes the
district court for failing to ask Spring how long it would take him to prepare for
trial. The government argues that such an inquiry was unnecessary given the
district court’s knowledge of the case.
       Ideally, the district court would have asked Spring how much time he
needed to prepare. But on the facts of this case, such an inquiry was not
necessary.    Here, the district court indicated that it was familiar with the
amount of evidence involved and the district court was convinced that a
substitution would necessitate a continuance.      The record indicates that the
district court knew that to be meaningful, a continuance would need to be
several days, and that initial delay would trigger a several month delay due to
the district court’s availability.
       Chikenna points out that court schedules are constantly in flux and
quotes the Seventh Circuit’s opinion in Sellers, 645 F.3d at 838, for the

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                           Nos. 12-30807 & 12-30808

proposition that even a delay of “a month or so can easily be outweighed by an
defendant’s interest in having counsel of choice.” But the anticipated several
month delay in this case is distinguishable from the “month or so” delay
contemplated in Sellers.
       Chikenna also quotes Sellers, id., for the proposition that “trial dates
frequently open when cases settle and defendants plead” and points out that the
district court’s scheduled actually opened up in January. But, Chikenna does
not argue that at the time the district court considered her motion to substitute,
the district court already knew of specific dates it would be available which were
not months away.
       We will refrain from critiquing the needs of the district court’s calendar
with the benefit of hindsight. At the time the district court was evaluating the
motions to substitute, it determined that the substitution would require a
several month continuance. Thus, the demands of the court’s calendar weighed
heavily against granting the substitution.
4.     Whether the District Court Abused its Discretion
       Chikenna had a constitutional interest in the counsel of her choice, which
the district court was required to balance against the needs of fairness and its
schedule. We agree with the district court that the balance of factors weighed
against granting the substitution in this case. The district court did not abuse
its discretion in denying the motions to substitute.
                                 CONCLUSION
       After applying this circuit’s five-factor double jeopardy test, we find that
the conspiracy in the Ngari case was separate from the conspiracy in the
McKenzie case. Therefore, the indictment in the McKenzie case did not create
a double jeopardy violation. Additionally, there was no multiplicity violation.

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                         Nos. 12-30807 & 12-30808

      After balancing Chikenna’s right to the counsel of her choice against the
needs of fairness and the demands of the court’s calendar, we find that the
district court did not abuse its discretion in denying Chikenna’s motions to
substitute counsel.
AFFIRMED.




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