No error to let a Defendant in a Federal criminal trial represent himself if he chooses

Gerti Muho’s scheme led to his conviction of bank fraud, wire fraud, aggravated identity, money laundering, and a 264-month sentence in federal prison. In this appeal he claimed that the district court should have reinstated his court appointed counsel despite his having invoked his right to self-representation. He also claims the trial court should have granted his request for court issued subpoenas, and the trial court erred by enhancing his sentence.

Muho worked for an investment firm “FAM” which gave him a position allowing him access to the personal information of the firm’s employees. After he left the firm, he created and used fraudulent documents purporting to reestablish his authority with the firm and then take control of one of FAM’s entities using a shell company he created. He was able to convince a bank, HSBC-Monaco, that he had legal authority to execute financial transactions on behalf of one of the subsidies and incuduced the bank to wire transfer over $2 million from the firm’s subsidy account to an account Muho controlled in another bank.

The appeals court rejected his claim that the trial court should have overridden his waiver of right to counsel.   At his trial, Muho clearly invoked his right to represent himself. Muho repeatedly reaffirmed his desire to continue representing himself after indications he was unsure about that decision. The appeals court determined that to reverse the conviction after affirming he wanted to represent himself would contradict a “nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.”

He also had a right an indigent defendant to have the trial court issue witness subpoena at government expense if the witness is a necessary to an adequate defense. The court upheld the trial court’s denial of his request to issue witness subpoenas to both witnesses because Muho failed to meet his burden of showing the relevancy and necessity of the requested testimony. He did not give the trial court any facts to support certain conclusions he anticipated the witness would make, and he did not indicate how the evidence would be relevant or admissible of hearsay objections.

Muho also challenged a two-level enhancement in the calculation of his federal sentence under the guidelines. The relevant provision increases the guidelines by two levels when the defendant derived more than $1 million in gross receipts from one or more financial institutions as a result of the offense. Muho claimed that the account he stole from belonged to the depositor and was not owned by HSBC-Monaco. He argued the enhancement should not apply because the bank did not have unrestrained discretion to alienate its depositors’ funds.

The appeals court rejected this argument since the property was held by the financial institution for a depositor. As long as the financial institution was the source of the property and was victimized by the offence conduct, the conduct meets the language of the guidelines, which requires that the gross receipts be derived from a financial institution that were a result of the offense. Money deposited in a bank by a third-party depositor involved property rights by the bank.