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No. 11-4071
No. 11-4072
No. 11-4073
TONY B. POUGH,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia.
Margaret B. Seymour, District
Judge.
(3:08-cr-00615-MBS-1;
3:08-cr-00615-MBS-2;
3:08-cr00615-MBS-3;)
Argued:
Decided:
June 6, 2012
PER CURIAM:
Joseph
(collectively
Brunson,
the
Timothy
Appellants)
McQueen,
operated
and
Ponzi
Tony
Pough
scheme
that
Following a
over
their
respective
objections;
(2)
whether
the
their
respective
Guidelines
range;
and
(3)
whether
the
I
From approximately September 2004 until August 2008,
the Appellants, who refer to themselves as the Three Hebrew
Boys,
operated
Ponzi
scheme
primarily
through
Capital
the
CCG
offered
investors,
referred
to
as
constituents
by
the
Appellants,
thousands
of
investment
debt
elimination
or
high-yield
returns.
The
debt
For its
Term Program guaranteed that the investor would earn 10% per
month on his or her principal until the end of the year at which
time the investor was returned the principal.
charged
up-front
for
this
program.
The
A 5% fee was
Long-Term
Program
this
$100,000.00
program.
toward
The
four
years
of
Tuition
college
Program
tuition.
offered
The
fees
many
Ponzi
schemes,
early
investors
received
In fact,
jet,
luxury
cars,
football
stadium
skyboxes,
and
their
families,
and
friends,
and
military
service
August
Carolina
2006,
began
state
to
law
enforcement
investigate
CCG
officers
after
in
receiving
executed
at
CCGs
offices
in
Columbia,
South
Carolina.
listing
the
names
and
addresses
of
over
7,000
while
following
the
day,
investigation
the
district
into
court
CCG
was
entered
pending.
The
sealed
order
granting
district
the
governments
court
motion.
converted
the
On
August
restraining
31,
2007,
order
into
the
a
preliminary injunction.
On September 5, 2007, the district court entered an
order outlining the receivers duties, as well as listing the
Appellants responsibilities concerning their cooperation with
the receiver.
May
27,
2008,
criminal
complaint
against
the
Appellants was filed in the United States District Court for the
District of South Carolina.
August
21,
2008,
the
grand
jury
returned
to
released
trial
certain
in
the
criminal
deposition
case,
the
transcripts
district
in
the
that certain documents generated for the courts eyes only and
those concern[ing] grand jury matters would remain sealed.
The
district
court
conducted
the
Appellants
By a judgment entered
of
McQueen
360
each
months
to
imprisonment
total
of
324
and
months
sentenced
Brunson
imprisonment.
and
The
II
The principal claim raised by the Appellants concerns
the district courts decision appointing full-time counsel in
January
2009
over
their
objections.
According
to
the
A
On June 3, 2008, at the Appellants detention hearing
in
the
criminal
provisionally
case,
appointed
United
the
same
States
three
Magistrate
attorneys
status
relieved
conference
on
provisionally
June
23,
appointed
2008,
counsel
the
Judge
who
had
During an
magistrate
based
on
the
district
court
to
appoint
standby
counsel
to
assist
the
Appellants.
governments
motion,
pro se motions.
the
Appellants
filed
several
nonsensical
these
voluminous
nonsensical
and
filings,
frivolous
the
Appellants
claims
raised
attacking
the
claimed that the United States District Court for the District
of South Carolina is a privately owned Commercial Corporation
and that the United States is a 501C3 NON PROFIT OR RELIGIOUS
CORPORATION or CHARITABLE TRUST.
they
were
Corporate
payment
of
entitled
Surety
gift
to
full
Bonds
and
payment
that
estate
the
the
government
taxes.
The
surrender
owed
of
for
non-
Appellants
also
to
acknowledge
that
they
were
the
defendants
in
the
or
the
live,
breathing
man,
Joseph
Brunson.
and
Pough
made
similar
nonsensical
claims.
At
the
three
previous
attorneys
as
standby
counsel
and
various
motions
filed
by
the
Appellants.
The
Appellants
again announced that they were not the defendants and were not
under
the
district
courts
jurisdiction,
arguing
that
the
argument
in
support
of
their
motions,
the
Appellants
August
22,
2008,
day
after
the
superseding
September
26,
2008,
the
Appellants
Ex
Parte
For
Declaratory
Judgment
filed
yet
In the motion,
and
Relief,
the
standby
counsel
appointed
Appellants
district
court
January
29,
2009.
full-time
counsel
for
all
disruptive
held
as
and
hearing
At
obstructive
on
the
the
conduct.
governments
hearing,
Brunson
The
motion
refused
on
to
Instead, he
Bernard
Brunson,
Bernard Brunson.
appointed
by
the
defendant
Joseph
case was settled and closed and that he was not there as a
defendant in the criminal case, but rather wished to proceed
sui juris on behalf of the defendant Timothy McQueen named in
12
the
indictment. 5
McQueen.
granted
Pough
took
similar
approach
to
that
of
governments
motion,
opining
that
the
Appellants
court left the door open for the Appellants to secure substitute
counsel, if they decided to retain counsel on their own.
Unhappy
Appellants,
with
shortly
the
thereafter,
district
moved
courts
to
ruling,
rescind
the
the
order
that a trial could not proceed without the appointment of fulltime counsel because the Appellants refused to acknowledge they
were the defendants named in the indictment.
Along a similar
vein, the district court observed that the trial could not move
forward because the Appellants would not even acknowledge who
was talking to the district court.
These
included
motions
Administrative
termination
for
Abatement
Proceeding
of
to
appointed
Forgiveness.
The
of
Proceeding
Settle
Matter,
counsel,
district
and
court
notices
Request[s]
conducted
Pending
of
for
pretrial
all
claims
and
charges
outstanding
to
this
matter.
acknowledged
that
he
was
Joseph
Brunson,
intervenor.
intervenors.
Like
many
times
before,
the
Appellants
insisted
counsel
and
that
settle
they
the
wanted
case
to
dismiss
their
administratively.
They
appointed
When
the
the
Appellants
stated
that
they
would
14
The
Appellants
disruptive
and
obstructive
conduct
At
order.
McQueen
and
Pough
joined
these
arguments,
which
B
The
Sixth
Amendment
guarantees
criminal
defendant
to
trial
representation.
(1975).
The
U.S.
counsel
Faretta
right
of
and
v.
also
the
California,
right
422
self-representation
to
U.S.
self-
806,
generally
must
835
be
trial
right
Indiana
judge
to
v.
may
Id. at 834.
self-representation,
Edwards,
554
terminate
U.S.
however,
164,
is
171
self-representation
not
(2008).
by
15
The right of
United States
v. FrazierEl, 204 F.3d 553, 560 (4th Cir. 2000) (The right [to
self-representation] does not exist . . . to be used as a tactic
for delay, for disruption, for distortion of the system, or for
manipulation of the trial process.).
In
grounds
to
this
revoke
case,
the
the
Appellants
case
as
district
well),
pro
court
se
had
status
sufficient
and
appoint
Appellants
disrupted
the
counsel
for
the
Appellants,
the
Appellants
had
filed
over
such
numerous
nonsensical
hearings
in
arguments.
which
From
the
Appellants
the
get-go,
put
the
the
Appellants,
and,
without
such
dialogue,
it
was
Moreover,
At the hearing
not
have
before
it,
jurisdiction.
the
district
In
sum,
court
under
certainly
the
circumstances
acted
within
its
the
alternative
to
their
argument
that
the
counsel,
to
appointment
wait
of
argument.
the
Appellants
until
the
full-time
Numerous
suggest
beginning
counsel
courts
the
of
government
trial
motion.
We
understandably
to
make
reject
have
was
the
this
permitted
sense.
expense
of
etc.),
and
bringing
it
would
the
case
to
materially
17
trial
(securing
prejudice
the
witnesses,
government
to
here
would
permit
them,
and
similar
defendants,
to
III
The
Appellants
also
challenge
the
district
courts
Rather, they
receivership
case
sealed
during
the
trial
amounts
to
support
of
their
structural
error
argument,
the
the
Court
noted
five
structural
errors
that
mandate
biased
judge,
the
right
to
18
self-representation
at
trial,
McGurk v.
not
fit
jurisprudence.
suggest
the
neatly
into
Appellants
manner
in
which
Supreme
Br.
the
at
Court
46.
district
structural
error
Nevertheless,
court
handled
they
the
39, 46 n.4 (1984) (quoting Estes v. Texas, 381 U.S. 532, 588
(1965) (Harlan, J., concurring)).
of the accused; that the public may see he is fairly dealt with
19
Id.
responsibly
encourag[ing]
witnesses
to
come
Here,
trial.
undeniably,
the
Appellants
enjoyed
public
509 (noting that trial closures are to be rare and only for
20
Moreover,
protective
of
public
trial
than
the
implicit
First
IV
The Appellants also challenge their sentences.
The
A
Prior
to
sentencing,
presentence
investigation
The Guidelines
for
the
Criminal
History
Category.
Poughs
Criminal
7,
States
(USSG) 2B1.1(a)(1). 7
Sentencing
Commission
Guidelines
Manual
Two levels
on
According
a
to
sentencing,
policy
the
the
Appellants
disagreement
Appellants,
with
Guideline
pressed
the
Fraud
an
sentences
argument
Guideline.
for
fraud
offenses
empirical
are
too
high,
data,
and
are
have
not
based
been
on
past
increasingly
practice
rejected
or
by
many
of
which
are
overlapping
and
duplicative.
3553(a)
factors,
sentence
at
the
low-end
of
the
with
the
Fraud
Guideline,
holding
that
the
their
policy-based
arguments
rejected
by
the
district
court below.
B
We review a sentence for reasonableness, applying the
abuse of discretion standard.
38, 51 (2007).
Id.
Id.
at 4950; United States v. Lynn, 592 F.3d 572, 57576 (4th Cir.
2010).
If
substantive
totality
there
is
no
reasonableness
of
the
procedural
of
the
circumstances
to
error,
sentence,
see
we
review
the
examin[ing]
the
whether
the
sentencing
United
the
sentence
is
within
the
presumption of reasonableness.
Guidelines
range,
we
apply
to
each
appellant,
the
district
court
With
properly
forth
presented
in
by
18
the
U.S.C.
parties,
3553(a),
and
analyzed
sufficiently
any
arguments
explained
the
Moreover,
satisfied
the
standards
in
18
U.S.C.
3553(a).
ranges
based
solely
24
on
policy
considerations,
Munjak, 669 F.3d 906, 907 (8th Cir. 2012) (That a district
judge now may be permitted to deviate from the guidelines based
on
policy
disagreement
with
the
Sentencing
Commission,
policy
disagreement
Mondragon-Santiago,
564
F.3d
with
them.);
357,
367
United
(5th
Cir.
States
2009)
v.
(In
Guidelines
accordingly.
decisions
for
policy
reasons
and
may
adjust
sentence
under
more
lenient
standard
simply
because
the
is
courts
[G]uideline
underlying
not
range
a
rendered
refusal
based
particular
on
unreasonable
to
deviate
disagreements
Guideline
within
its
discretion
when
25
because
from
the
with
provision.)
merely
the
of
advisory
policies
(citation
and
declined
to
embrace
the
V
For the reasons stated herein, the judgments of the
district court are affirmed.
AFFIRMED
26