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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2010 Decided July 2, 2010

No. 06-3185

UNITED STATES OF AMERICA,

APPELLEE

v.

ROBERT L. HALL, JR.,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 05cr00030-01)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the brief was A. J. Kramer,

Federal Public Defender.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Roy W. McLeese III,

Mary B. McCord, and Steven J. Durham, Assistant U.S.

Attorneys.
2

Before: HENDERSON, ROGERS and GARLAND, Circuit

Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Robert L. Hall, Jr. was convicted

by a jury of operating a “Ponzi” scheme1

 for more than two

years involving over a million dollars in which more than

seventy investors lost all or a large portion of their investment. 

He challenges his conviction primarily on the ground that the

district court failed to conduct an adequate inquiry to determine

whether his waiver of his right to counsel under the Sixth

Amendment to the U.S. Constitution was voluntary and

knowing. Specifically, he maintains the inquiry failed to dispel

his belief that his counsel was unprepared for trial. We hold that

the district court’s inquiry was constitutionally adequate because

the district court’s findings that Hall’s decision to represent

himself (with standby counsel) was knowing and voluntary met

the criteria in Faretta v. California, 422 U.S. 806 (1975), for

determining when a defendant may exercise his constitutional

right to forgo his right to counsel. Viewing the proceedings as

a whole, we reject Hall’s assertion that he faced the

constitutional dilemma of choosing between representing

himself or accepting unprepared counsel. The district court’s

colloquy with Hall addressed his complaints by identifying

Hall’s false premise regarding discovery and by explaining how

1

 A “Ponzi” scheme is a scheme in which “some early

investors are paid off with money put up by later ones in order to

encourage more and bigger risks.” Merriam-Webster’s Collegiate

Dictionary 905 (10th ed. 1993). See also Belizan v. Hershon, 495

F.3d 686, 689 (D.C. Cir. 2007); Cunningham v. Brown, 265 U.S. 1,

7–9 (1924) (describing the “remarkable criminal financial career of

Charles Ponzi”).
3

Hall’s generalized complaints did not indicate defense counsel

would not provide effective assistance. 

We are further unpersuaded by Hall’s contentions that a

reversal of his conviction is required because plain error

occurred when the prosecutor’s erroneous closing argument

allegedly affected the jury’s understanding of the elements of

mail, wire, and District of Columbia Code fraud, and when the

district court constructively amended the indictment by

instructing the jury on a third type of securities fraud not

charged in the indictment. As to each error, Hall has failed to

show a likelihood that the error affected the verdict or seriously

affected the fairness, integrity, or public reputation of judicial

proceedings. Regarding closing argument, the jury was

instructed that arguments of counsel are not evidence and on the

elements of the charged offenses. Regarding the third type of

securities fraud, the jury necessarily had to find Hall engaged in

a scheme to defraud to convict on the mail, wire, and D.C. fraud

counts, and the evidence of his guilt was overwhelming. 

However, as the government concedes, Hall’s challenges to

his sentence, save one, require a remand for resentencing. 

Accordingly, we affirm the judgment of conviction but remand

the case to the district court for resentencing.

I.

 The indictment alleged that from February 2001 to October

2003, Hall operated a Ponzi scheme through First United

Financial Group, LLC, which Hall owned and operated. The

scheme involved soliciting funds from investors by promising

high rates of return on investments in properties to be developed

for the benefit of low and middle-income African-Americans in

the District of Columbia. The government’s evidence showed

that Hall made false representations to the investors, promised
4

them extraordinarily high rates of return, made no real estate

investments, and used money received from later investors to

pay initial investors and to sustain the scheme. Hall was

indicted on six counts of mail fraud and ten counts of wire fraud,

in violation of 18 U.S.C. §§ 1341, 1343; id. § 2, one count of

securities fraud, in violation of 15 U.S.C. §§ 77q(a), 77x, and

one count of first degree fraud, in violation of D.C. Code §§ 22-

3221(a), 22-3222(a)(1); and was subject to forfeiture of

$747,169 allegedly obtained by mail or wire fraud, pursuant to

18 U.S.C. § 982(a)(2)(A).

Ten investors in First United who had entered into “asset

placement agreements” calling for a set rate of return and

payment schedule testified about representations made to them

by Hall regarding First United, what if any payments they

received, and their efforts to recover their principal. According

to Hall’s website, which he encouraged potential investors to

read, First United was

[o]ne of the fastest growing consulting firms in the

Washington DC area . . . and has quickly positioned

itself as a financial services powerhouse, with a strong

focus on educating working class citizens. The keys to

the firm’s success are effective education and

consultation methods, complimented [sic] by the

proactive development of client-friendly solution

systems. These services are designed to assist clients

for whom professional wealth building consultation

was previously unaffordable. First United . . .

envisions that its superior client education systems will

secure its place as the icon in financial services for

citizens who have been historically disenfranchised

from the information that safeguards their financial

future.
5

Gov’t. Ex. 18. The website included Hall’s photograph,

showing a serious looking bespectacled young man in a business

suit, who was described as “the twenty-nine year old President

& CEO of a multi-million dollar DC based consulting firm,”

who came from “humble beginnings” to “quickly ris[e] to

national prominence as a young leader in the African-American

community.” Id. The web site stated Hall was “[a] decorated

Army veteran and former paratrooper.” Id. 

Fairly typical of other investors’ experience was that of

United States Army Warrant Officer William McClain. He was

contacted by Hall and First United employee Carletus Willis and

told that First United used investor money to renovate properties

in low-income neighborhoods in the Trinidad section of

Washington, D.C., thereby benefitting African Americans by

providing affordable housing and its investors by paying high

rates of return. Hall told McClain he would be able to retrieve

his investments, and that other investors had received their

principal and interest. McClain received a six-page

“prospectus” about the Trinidad project, a condominium

conversion realty solution for those displaced by

“gentrification.” It stated that “by assembling and representing

a $21 million investment Buyer Pool (IBP), our firm [First

United] acts as the facilitator of a community friendly real estate

development system which provides affordable housing to low

and moderate income earners.” 

On four occasions McClain invested $27,000. His first two

investments, both $5,000, promised the return of principal plus

sixty percent interest in six months. McClain’s wife also

invested. When payment was not forthcoming, McClain

received letters from First United stating that there had been a

banking error delaying the checks and that First United was

going to sell property to avoid liquidity problems. With Hall’s

encouragement, McClain reinvested his principal and the profits
6

he thought he had earned. When he contacted Hall because he

had not received any payments, Hall drafted a payment plan

calling for payment in two weeks. McClain never received the

payments. He also received no response to his October 2003

letter demanding payment. McClain and his wife lost all they

had invested in First United. Hall never informed McClain that

First United owned no real estate or had no assets to liquidate.

Similarly, Hall induced Villet Gethers, a graduate student

at Howard University, to invest $7,000, telling her his investors

were happy, she would lose no money, and that the return of her

principal was “guaranteed.” He promised her an annual return

of seventy-two percent and offered to pay her a commission for

every new investor she recruited. Hall told Gethers he had

attended Howard University, had experience in finance, and had

community responsibilities and insights as an Advisory

Neighborhood Commissioner. Gethers lost approximately

$4,000 dollars. 2

2

 Other investors who lost money in Hall’s fraudulent

schemes also testified: 

-Mary Perkins (a nursing assistant according to the

government’s brief) recovered only $2,000 of the $10,000 she

invested with First United. 

-Walter Boone, a retired Postal Worker on disability pay,

invested $4,000 of his retirement funds after attending a seminar at

which Hall spoke. He was friends with an employee of First United

and invested because he was “strapped for money” to pay bills

following knee surgery. Tr. 2/21/06 at 179. Boone lost $2,000. 

-Likewise, Dr. Melody Ivory, a professor of computer science,

and her husband lost $12,500 after investing in First United on the

basis of Hall’s enthusiastic representations about First United’s

performance, his commitment to the African American community,

and his friendship with Dr. Ivory’s friend. When she demanded her

money, Hall drove her around the city, pointing to several properties
7

he claimed First United owned and described a building that was being

renovated by First United Construction LLC as part of the Trinidad

project. Dr. Ivory invested $30,000, and was promised $72,000 from

Hall after six months. Instead, she lost $5,500.

-Christian Downward (a government contractor according to

the government’s brief) invested $30,000 and received nothing back. 

Hall had promised his principal was safe and would be returned if

there was no property in which to invest. When Downward did not

receive his payments, Hall claimed an employee had embezzled First

United funds. 

-Kimberly Williams, who had a dual undergraduate degree in

economics and business, lost over $21,000 after entering asset

payment agreements in November 2001 and September 2002. She

initially received interest payments, which induced her to reinvest and

add to her principal with First United. According to Hall, her money

would be invested in the Trinidad project and he had “expertise”

through First United Construction. He also told Williams that the

Trinidad project was going well and First United was about to move

buyers into other properties. When nonpayment started in the fall of

2002, Williams received a letter from First United discussing liquidity

problems. 

-Loryne Bowen, a nurse, lost all of the $9,634 investment she

transferred to First United from her retirement fund. She had heard

Hall speak at First United’s offices on Connecticut Avenue, N.W.;

Hall described himself as an avid follower of Marcus Garvey’s

philosophy, claiming that he had handled finances and bookings for

a number of religious and musical groups. Hall assured her an

investment posed no risk.

-Denise Dicks-Cook, an executive assistant seeking money for

her two children’s tuition costs, invested $22,000, the proceeds of her

deceased husband’s life insurance policy. She was prompted to invest

by Hall’s biography, the Trinidad project prospectus, and her

discussions with Hall and Carletus Willis, the First United employee,

about the needs of the African-American community. As a result of

Hall’s discussions with her about the Bible and her religious beliefs,

Dicks-Cook trusted Hall and was convinced he was a “Christ-like”

person with good intentions.
8

Two former employees of First United described its

operations. Carletus Willis described First United’s relentless

focus on recruiting new investors rather than acquiring property. 

According to Willis, First United acquired no property. Money

to pay early investors came from funds received from later

investors, not from real estate investments. Investors’ money

paid First United’s operating expenses, but it was not current on

its utilities bills and its checks bounced even as Hall was driving

a new Mercedes. Hall told Willis how to solicit business and

what to tell investors about the Trinidad project. Willis was

aware that the representations he was making to investors were

false. When investors complained about not receiving interest

payments they were sent a letter stating that property would be

sold to pay investors; Hall personally signed the letters. When

Willis voiced his discomfort with the operation, Hall

complained Willis was not bringing in as much capital as he

previously had. Willis also testified that although First United

maintained a “virtual office” at 1050 Connecticut Avenue, N.W.

(based on space rented at an hourly rate), its actual office was

located in Hall’s residence.

Lamont Bessicks, Jr., who worked for First United from

June to November 2002, testified that Hall had developed the

concept for the Trinidad project but it was never implemented. 

Bessicks had been hired by Hall to locate properties to develop

into low and moderate income housing. But while he had

repeatedly presented Hall with projects, Hall never came up with

the required deposit funds. According to Bessicks, First United

made no offers to buy properties in the Trinidad neighborhood

-William Mann, a retired police officer, lost 100 percent of his

$10,000 investment. He testified that Hall assured him that the return

of his principal was guaranteed and at worst he would not receive

interest.
9

and it never sought financing or developed construction plans

for any properties. Further, the statements in the prospectus that

First United had a $21 million investment pool and had provided

housing in the community were false. When Bessicks’ own

payroll checks began bouncing, he quit. 

An expert witness described marketing fraud schemes for

the jury, including the nature of Ponzi schemes. He estimated,

based on a random sample of asset placement agreements, that

the average annual interest rate promised to the investors was

153.6 percent. The postal inspector who conducted the 

investigation testified that the 70 investors who had responded

to a government questionnaire had lost approximately $747,000

in principal. Bank records showed that over $214,000 was

withdrawn from First United’s account in cash, checks made

payable to cash or Hall, or by transfers to Hall’s personal bank

account.

In his defense, Hall, representing himself, presented five

investors, in addition to a First United Construction employee,

a First United employee, and a real estate developer. The

investors testified that Hall had spoken to them about the risks

involved with the investments and that there was a high rate of

return in exchange for the risk and the lack of backing by the

FDIC. They also testified that they had received the promised

return on their investment. One of the witnesses, Reverend

Tommy Jackson, testified that Hall had told him that the money

was offered at a higher rate of return because the project had not

started and they were in desperate need of capital. Hall also

testified himself, with questions posed by his standby counsel,

claiming he acted in good faith. He claimed that he had paid

over $300,000 to investors out of $400,000 taken in during 2002

and that he had intended to pay the rest of the investors. He also

claimed that the literature about the Trinidad project represented

intentions to buy real estate and that he had not represented to
10

investors that real estate had already been purchased. He

admitted, however, that he had never told investors he did not

have sufficient funds to purchase real estate and that First United

did not have any properties to liquidate, as the letters to

investors stated.

The jury convicted Hall on all counts and found by a

preponderance of the evidence that the proceeds from the mail

and wire fraud amounted to $747,169. The district court

sentenced Hall to 188 months’ imprisonment, followed by three

years’ supervised release, and ordered Hall to pay $713,924 in

restitution and to forfeit $747,169. 

II.

On appeal, Hall contends he did not make a knowing,

intelligent, and voluntary waiver of his Sixth Amendment right

to counsel. He maintains that the district court’s inquiry

regarding defense counsel’s preparation for trial was inadequate

to dispel Hall’s belief that defense counsel was unprepared to

render effective assistance and so induced an involuntary

waiver. Because his specific concerns were never addressed,

and defense counsel’s responses that he was prepared to proceed

to trial did nothing to alleviate the constitutional dilemma Hall

faced, Hall maintains reversal is required: “It is not possible to

voluntarily choose to waive counsel when your alternative is

unprepared counsel.” Appellant’s Br. 17. 

In Faretta, 422 U.S. 806, the Supreme Court held that in a

criminal prosecution a defendant has a constitutional right to

proceed without the counsel guaranteed by the Sixth

Amendment when he voluntarily and intelligently elects to do

so. However, the Court did not shy away from acknowledging

that “[i]t is undeniable that in most criminal prosecutions

defendants could better defend with counsel’s guidance than by
11

their own unskilled efforts.” Id. at 834. Because an accused

who manages his own defense “relinquishes, as a purely factual

matter, many of the traditional benefits associated with the right

to counsel,” the Court imposed a precondition to selfrepresentation: “[I]n order to represent himself, the accused

must ‘knowingly and intelligently’ forego those relinquished

benefits.” Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458,

464–65 (1938)). The Court placed a responsibility on the trial

court to ensure this right by conducting a colloquy: “Although

a defendant need not himself have the skill and experience of a

lawyer in order competently and intelligently to choose selfrepresentation, he should be made aware of the dangers and

disadvantages of self-representation, so that the record will

establish that ‘he knows what he is doing and his choice is made

with his eyes open.’” Id. at 835 (quoting Adams v. United States

ex rel. McCann, 317 U.S. 269, 279 (1942)) (amended on denial

of reh’g, 1943). 

The colloquy addressing Hall’s concern that defense 

counsel was unprepared for trial took place on January 30,

2006, the date set in July 2005 for pretrial motions before the

February 6, 2006 trial date. At the start of the hearing, defense

counsel described the circumstances of his filing on Saturday,

January 28, 2006, a motion for a continuance on the ground that 

defense counsel “is not prepared to proceed with the trial . . . on

its currently scheduled date” and “cannot represent to this court

that he is adequately prepared to zealously defend Mr. Hall.” 

Def.’s Mot. For Continuance at 2. Defense counsel advised the

district court that since his appointment in April 2005, he had

opportunities to review the information provided by the

government and he had learned that Hall “had a particular idea

of how it is he wished to defend this case from the outset of my

representation of him.” Tr. 1/30/06 at 4. Defense counsel

stated that his office “ha[d] attempted to prepare a defense,

given the representations made by Mr. Hall, and in fact our
12

agreement during the early part of our . . . attorney-client

relationship.” Id. Defense counsel noted that he had received

the “bulk” of discovery he had requested and that he anticipated

receiving further information about the government’s witnesses

and Jencks information that day. However, defense counsel

explained, on Saturday, January 28, after he and Hall had

reviewed a renewed plea offer and some of the information

from the government,

Mr. Hall represented to this counsel, and this counsel

agreed based upon what it is that he was saying at that

time, that he did not feel that we were ready to proceed

with trial. Although that was not my original position

prior to our meeting. Mr. Hall, originally when

counsel was appointed, represented that he wished to

in some respects represent himself, and that he viewed

counsel as a advisor of sorts to Mr. Hall, who was

prior to my appointment, and even at the time of my

appointment, prepared to represent himself. Upon

discussion and agreement between counsel and Mr.

Hall, we determined that Mr. Hall in fact could not

represent himself but as all criminal defendants do

have, he would have the right to testify in the trial to

illuminate some of the issues he thought would be

illuminated originally more effectively if he was

representing himself. Mr. Hall had agreed with

counsel that [representing himself] . . . would not be

the best way to proceed. But after having met with

counsel on Saturday [January 28] and hearing how it

is that counsel intended to proceed in terms of the

defense of this case, Mr. Hall again revisited the issue

of representing himself. Counsel . . . talked to Mr.

Hall about that option. Mr. Hall agreed with counsel

that if counsel were to request a continuance, that he

would then withdraw from that position that he wished
13

to represent himself and that we would come here

before the court and make these representations, and

then Mr. Hall would make a decision about . . . his role

in the defense.

Id. at 5–6. Defense counsel then advised the district court

regarding Hall’s position on January 28 that “[b]ased on my

conversation with Mr. Hall and how it is that he intends now to

defend the case, I don’t feel as if I am prepared to do what it is

that Mr. Hall is now asking me to do, in light of the information

that we now have in our office.” Id. at 6–7.

The district court denied the motion for a continuance,

noting points made in the government’s opposition reciting

Hall’s efforts to delay his trial.3

 Turning to the question of

3

 In addition to arguing the two grounds stated for a

continuance were meritless, the government’s opposition to the “11th

hour” January 28, 2006 motion for a continuance stated that after

Postal Inspectors searched First United’s offices and seized

incriminating documents in October 2003, Hall applied in June 2004

for Criminal Justice Act representation and an Assistant Federal Public

Defender was appointed to represent Hall. The prosecution gave

defense counsel discovery and tendered a plea offer. At Hall’s

request, the plea deadline was extended several times. In October

2004, Hall “abruptly terminated” his counsel’s services and retained

attorney Pamela Bethel. The prosecution gave her discovery, access

to seized documents, and an extension on the plea offer. The plea

deadline was extended several more times at Hall’s request and then

rejected after two months had elapsed. In the interim, in December

2004, Ms. Bethel and another attorney representing Hall were given

access to the materials seized by the Postal Inspectors and they spent

two days reviewing and copying search warrant materials. The grand

jury returned its indictment on January 18, 2005. The next day the

prosecutor filed a trial memorandum outlining in detail what the

evidence would show and the witnesses the government intended to
14

whether Hall would seek to represent himself, the district court

noted that, although Hall had a right to represent himself and

Hall was not an uneducated person, it did not “believe that a

criminal defendant’s interests are best served by representing

himself, because of all the rules and principles which the court

must enforce during the trial, which a criminal defendant may

not be aware of.” Tr. 1/30/06 at 12. Defense counsel, upon

conferring with Hall, advised that Hall would be making a

request to dismiss counsel and represent himself. At that point

the district court conferred ex parte with Hall and defense

counsel.

Hall told the district court that his complaint was not

related to any failures of the government to provide discovery

but rather that although defense counsel “is a great attorney,” he

believed his counsel “is not adequately prepared” for trial. Id.

at 15. Hall stated that he “lived through those years” and knew

“how much information . . . they have to work with.” Id. He

reasoned his counsel was unprepared from the fact that counsel

“ha[d] only spent less than say two hours a month” meeting

with Hall. Moreover, “it took some 12 federal agents nine

hours to collect boxes and boxes of documents and other

physical evidence, which are in Columbia, Maryland,” yet his

counsel, Hall asserted, had “never been to the room where that

information is.” Id. Hall further claimed “[t]here is exculpatory

evidence, in my opinion, there that has not been submitted by

call at trial. When Hall first appeared on January 28, 2005 before the

district court to which the case was assigned for trial, he was without

counsel, advising the district court he did not have funds to retain his

private counsel and he requested 45 to 60 days to retain counsel. The

district court continued the proceedings until February 28, and then

again until April 12, 2005. On that date, when Hall appeared without

counsel, the district court appointed defense counsel to represent Hall. 
15

the government to [defense counsel],” such as videotapes and

cash receipt books, and that evidence had not been requested by

defense counsel. Id. at 15–16. Hall also stated, “[w]e have no

witnesses that I know of” and no evidence to present, while the

government had volumes of documentation and expert

witnesses. Id. at 16. Then, clarifying that he was not “of the

opinion that I should definitely represent myself,” Hall told the

district court that he did not “feel that it would be appropriate to

go forward, given the level of representation of a good attorney. 

And I would rather dismiss him as my attorney than go forward

with an ill-prepared attorney.” Id. In response to the district

court’s question whether he was asking for the appointment of

new counsel, Hall responded “that would probably be the

smartest thing[] for [me] to do.” Id. at 17. 

Turning to defense counsel, the district court asked for his

response. Defense counsel began by observing that “I just think

we disagree about the level of preparation that has been done.” 

Id. at 17. Explaining their planned schedule of meetings did not

materialize because of conflicts with their work schedules,

defense counsel advised that “during that time I became familiar

with the information that had been presented by the

government.” Id. at 17. Defense counsel stated that he had

reviewed some of the information he had obtained from the

government with Hall and knew what evidence and information

he would be able to use in the defense. Defense counsel assured

the district court that he was “very familiar with the

information[,] familiar with most of the players[,] . . . and felt

prepared really to go to trial.” Id. at 17–18. 

The district court denied Hall’s motion to dismiss defense

counsel and appoint new counsel to represent him. First, the

district court identified Hall’s misunderstanding about

discovery. By way of introduction, the district court stated that

it could not and did not know what Hall was referring to in
16

terms of evidence he was aware that the government had that

defense counsel had not requested, or in terms of what Hall

thought defense counsel should know that counsel did not. The

district court explained to Hall, however, that what it did know

from what the prosecutor and defense counsel had said is that

Hall “seem[ed] to . . . operate on a false premise, which is that

the government is required to give you all the information that

you think it should.” Id. at 18. The district court advised Hall

that the government had no such obligation beyond Rule 16 of

the Federal Rules of Criminal Procedure. Noting Hall’s

apparent confusion about this, the district court advised Hall

that this was one reason the court did not think it was a good

thing, even for a “very knowledgeable” person, to represent

himself. Id. at 19. Second, the district court explained to Hall

that defense counsel stated he had received from the

government all of the information to which he believes he is

entitled, and that nothing Hall had said suggested otherwise. 

The district court advised Hall the prosecutor had stated that the

government disclosed more than was required under the rule.

Third, regarding Hall’s concern about witnesses, the district

court explained that a lack of witnesses alone did not indicate

defense counsel should be removed as unable to provide

effective assistance and new counsel appointed, because

“perhaps” there are no witnesses who could testify. Id. Finally,

the district court informed Hall of how it evaluated the situation. 

Observing that Hall “wishes very much not to have the trial go

forward, . . . [and] basically wishing to do whatever is necessary

in order . . . to accomplish a delay of the trial,” the district court

informed Hall that a desire for delay was not an appropriate

basis to grant his request. Id. 

The district court then inquired whether Hall had any other

requests. Hall requested that he be allowed to represent himself

and that defense counsel be appointed as an advisor. Further ex

parte inquiry established that Hall wanted defense counsel to
17

act as standby counsel. The district court then posed a series of

questions in open court4

 and determined that Hall’s waiver of

his Sixth Amendment right to counsel was made knowingly,

intelligently, and voluntarily, and appointed defense counsel as

standby counsel. 

On appeal, Hall maintains the district court failed

adequately to inquire into his request for new counsel, pointing

to the lengthy inquiry in United States v. Cunningham, 145 F.3d

1385 (D.C. Cir. 1998), in which the district court dispelled the

factual misunderstanding that was the basis for the defendant’s

4

 Hall informed the district court that he was thirty-two years

old, had attended more than three years of college at Howard

University majoring in international business and received good

grades when he had attended classes, and that he did not suffer from

any mental or emotional problem that would prevent him from

representing himself. When Hall responded he had no prior criminal

conviction and had not studied criminal law, the district court

addressed once again the “many disadvantages of self-representation,”

id. at 32, and how a lawyer would be knowledgeable of the principles

of criminal law and procedure to apply at trial. Hall responded that he

understood, as the district court put it, that he “will be disadvantaged

by that ignorance.” Id. at 33. Hall acknowledged he was not familiar

with the Federal Rules of Evidence “at this time,” id. at 33, or the

Federal Rules of Criminal Procedure “at this time,” id. at 34. The

district court again advised Hall that “a trained lawyer would defend

you far better than you could defend yourself,” that “it’s unwise of

you to represent yourself,” and that the court “strongly urges you not

to try to represent yourself.” Id. at 34. Hall responded that he

understood and, notwithstanding all the district court had said,

confirmed that his decision to represent himself was entirely

voluntary. In reassuring the district court that he wished to represent

himself Hall added, “provided that I have the assistance of [defense

counsel].” Id. at 35.
18

complaints about his counsel. Hall appears to take the view that

he could not exercise free will when he believed defense

counsel to be unprepared for trial, and contends that nothing in

the record objectively contradicted that belief. See Appellant’s

Br. 22–23. In Faretta, 485 U.S. at 834, the Supreme Court

instructed, however, that to conclude a defendant’s decision to

waive the right to counsel is “intelligent” does not mean that it

must be perceived as reasonable or wise, 485 U.S. at 834. And

in Cunningham, 145 F.3d at 1388, this court warned that

“[w]here a defendant’s complaints lack merit, a court cannot

allow itself to be manipulated into granting a continuance and

appointing new counsel just to placate a defendant threatening

to represent himself.” Rather, where the defendant elects to

represent himself because he believes trial counsel is

unprepared, the district court “must evaluate the defendant’s

objections to ensure that the self-representation election is

voluntary” and not the result of a “Hobson’s choice.” 

Cunningham, 145 F.3d at 1392. 

In Cunningham, this court held that the district court’s

colloquy with the defendant was sufficient where the district

court had uncovered that the defendant’s dissatisfaction was

based on a factual misunderstanding and had “repeatedly

assured Cunningham of [the court’s] confidence in” his attorney

after finding that Cunningham’s complaints “plainly lack[ed]

merit.” Id. Similarly to Cunningham, the district court

uncovered and addressed the false premise underlying Hall’s

concern that defense counsel was unprepared for trial. The

district court was now cognizant of representations by the

prosecutor and defense counsel about discovery as well as

defense counsel’s explanation for filing the motion for a

continuance so close to the long-set trial date and his

representations about his preparedness for trial, and concluded

that Hall’s complaints about defense counsel reflected a

misunderstanding regarding discovery. Although Hall had
19

disclaimed that he was making any argument that the

government had not turned over what it was “supposed to,” id.

at 15, his complaint that defense counsel did not request access

to unidentified additional documents revealed a

misunderstanding of the legal futility of such a request. The

district court explained the nature of the misunderstanding to

Hall and advised him that his complaints provided no basis to

conclude defense counsel would render ineffective assistance of

counsel, much less adequate reason to delay the start of trial so

new counsel could be appointed. 

The record supports the district court’s conclusion. 

Although the statement in the motion for a continuance lent

support to Hall’s assertion about defense counsel’s

unpreparedness due to the “volume of documentation,” Def.’s

Mot. for Continuance at 2, at the January 30 hearing defense

counsel limited that statement by explaining that he was

unprepared to proceed in the manner that Hall had suggested

over the weekend in view of the evidence his office had, not

that he was unprepared for the reasons Hall told the district

court he believed defense counsel was unprepared for trial. See

Tr. 1/30/06 at 5–7. In response to Hall’s claim that defense

counsel had not examined boxes of seized documents or asked

for exculpatory items, the district court explained to Hall that

the government had turned over everything required and that

defense counsel advised the court he was “familiar” with that

information and that Hall was not aware of the extent of his

preparatory efforts. Tr. 1/30/06 at 10, 19; 17. Hall never

identified specific documents that defense counsel had refused

to make an effort to obtain, besides his general objection that

counsel had not been to the room in Maryland where evidence

was held. Neither did Hall indicate to the district court that

there were potential witnesses that defense counsel had refused

to interview.

 
20

Nevertheless Hall maintains that the district court was

required to question both him and defense counsel more fully

about the alleged lack of preparation. Doubtless the district

court’s inquiry might have proceeded further. For example, the

district court did not ask defense counsel whether the lack of

witnesses was a strategic choice or whether he had already

reviewed all the relevant evidence or thought he could do so

before the trial began in a week. The answers to these

questions, however, were implicit in defense counsel’s

representations to the district court that he was familiar with the

players and the information the government had provided. The

district court might have explained to Hall why the court was

confident defense counsel was prepared to render effective

assistance, because he still had a week to review documents

before trial. But Hall knew the scheduled trial date and had

heard defense counsel inform the district court that he

anticipated receiving additional materials from the government

that day in anticipation of starting trial in a week. The

circumstances in the cases Hall cites are readily distinguishable. 

Unlike in Sanchez v. Mondragon, 858 F.2d 1462, 1466 & n.6

(10th Cir. 1988), the district court allowed Hall to state the

reasons for his belief that defense counsel was unprepared for

trial and asked defense counsel to respond to Hall’s complaints. 

And unlike in Pazden v. Maurer, 424 F.3d 303 (3d Cir. 2005),

the government gave defense counsel access to discovery in a

timely fashion and defense counsel stated that he was familiar

with the information turned over by the government. 

The extent of the Faretta colloquy with a defendant lies

within the district court’s discretion so long as the court

addresses the core elements of the defendant’s concern. The

district court did so here. The district court properly recognized

that Hall had a misunderstanding about the discovery that had

taken place and defense counsel’s review of that material. The

district court had earlier informed Hall that it had appointed
21

experienced criminal defense counsel with whom the court was

familiar professionally. The district court also explained why

Hall’s concerns about witnesses or the lack thereof was not a

reason to dismiss defense counsel and appoint new counsel. 

Based on the factual context and generalized nature of Hall’s

complaints, the district court reasonably could conclude that

Hall was simply trying to delay the start of his trial.

Additionally, defense counsel’s explanation for filing the

motion for a continuance, which Hall did not dispute, indicated

that Hall’s dissatisfaction with counsel stemmed from a

difference about trial tactics, not defense counsel’s

unpreparedness to meet his obligation under the Sixth

Amendment to provide effective assistance of counsel. Where,

as here, the record indicates a disagreement between the

defendant and his counsel about trial strategy – as distinct, for

example, from a disagreement about whether the defendant

should testify at trial – the district court may properly view that

as a matter for counsel to decide. See Strickland v. Washington,

466 U.S. 668, 690–91 (1984); Pavel v. Hollins, 261 F.3d 210,

217 (2d Cir. 2001); cf. United States v. Moore, 554 F.2d 1086,

1091 (D.C. Cir. 1976). Given the apparent lack of merit to

Hall’s complaints, a further inquiry was not constitutionally

required. 

Also unpersuasive is Hall’s contention that his waiver of

counsel was not knowing or intelligent because he was unaware

of the guidelines range of 188 to 235 months to be used by the

district court at sentencing. The district court emphasized to

Hall the seriousness of the felonies with which he was charged

and advised Hall that the initial guidelines estimate was

conservative and could go up or down. Tr. 1/30/06 at 28, 31. 

Moreover, the prosecutor alerted Hall to the possibility of a

sentence in excess of a hundred years’ imprisonment if the

sentences on each count were consecutive. Id. at 29–30. Hall 

responded affirmatively to the district court’s inquiry whether
22

he understood and appreciated that he was charged with very

serious felony offenses. Id. at 28; see also id. at 35. Hall’s

challenge to this aspect of the Faretta inquiry thus fails.

Accordingly, we hold that the district court’s inquiry

regarding the voluntariness of Hall’s waiver of his Sixth

Amendment right to counsel was constitutionally adequate. The

record shows that Hall’s request to represent himself, with the

assistance of standby counsel, was granted by the district court

only after the necessary Faretta inquiry regarding Hall’s

competence and intelligence to waive his right to counsel as

well as his knowledge of the gravity of the charges against him

and the disadvantages of self-representation.

III. 

Hall also contends that plain error occurred during both the

prosecutor’s closing argument to the jury and the district court’s

instructions to the jury on securities fraud. Because Hall did not

object to either error during trial, he must show the error was

plain, because it affected his “substantial rights” and “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732–37

(1993). Hall fails to meet this burden.

A.

As a representative of the United States, the prosecutor has

a duty to see that “justice shall be done,” and the average jury

places confidence in the prosecutor’s statements. Berger v.

United States, 295 U.S. 78, 88 (1935). Yet during closing

argument the prosecutor referred to three “independent bases”

for conviction of mail, wire, and D.C. fraud, Tr. 3/2/06 at 11,

22, and told the jury that if it found Hall had lied “to one person

one time, he can be found guilty of fraud,” id. at 69. Although

the securities fraud statute has three independent bases for
23

finding liability, 15 U.S.C. § 77q(a), the mail, wire, and D.C.

fraud statutes impose liability only where there is a scheme to

defraud.5 Hence, the prosecutor’s closing argument purported

to vitiate the scheme-to-defraud requirements of the wire and

mail fraud statutes, and the scheme or systematic course of

conduct requirements of first-degree fraud under District of

Columbia law. On appeal, the United States properly concedes

the prosecutor’s statement was error. See Appellee’s Br. 52. 

The question is whether this error prejudiced the outcome of

Hall’s trial, see United States v. Venable, 269 F.3d 1086, 1091

(D.C. Cir. 2001). 

In determining prejudice, the court looks to “the centrality

of the issue affected, the severity of the prosecutor's misconduct,

the steps taken to mitigate the misconduct, and the closeness of

the case.” Id. at 1091. The error went to an element of the

crimes charged. However, the prosecutor told the jury to look

to the district court’s instructions on the law. See Tr. 3/2/06 at

10–11, 68. This reference to the forthcoming jury instructions

could not alone remove the taint of the error, because the error

suggested an easy way to convict for a juror disinclined to

examine the evidence in light of the instructions on the law. But

the district court instructed the jury both that arguments of

counsel were not evidence and that to convict on the mail, wire,

and D.C. fraud counts the jury must find a scheme to defraud

beyond a reasonable doubt. See Tr. 3/2/06 at 80, 89–94, 107.6

5

 The mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343,

require proof of “any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent pretenses,

representations, or promises.” D.C. Code § 22-3221(a) requires proof

of a “scheme or systematic course of conduct with intent to defraud.” 

The securities fraud statute is discussed infra Part III.B.

6

 For example, the district court instructed that to convict of

wire fraud, the jury must find that Hall “knowingly devised or
24

The jury is presumed to follow the instructions. See, e.g., Greer

v. Miller, 483 U.S. 756, 766 n.8 (1987); Richardson v. Marsh,

481 U.S. 200, 211 (1987). Given the jury instructions it is

implausible to think, absent evidence to the contrary, that the

jury took the prosecutor’s erroneous argument to mean that to

convict Hall it did not have to find a scheme to defraud, or

otherwise to follow the jury instructions. See Venable, 269 F.3d

at 1091.

Hall maintains, however, that the jury instructions were

insufficiently curative because the district court should have

alerted the jury to the prosecutor’s erroneous statement of the

law. This court has previously approved targeted instructions

designed to mitigate prejudice. See Bradley v. United States,

420 F.2d 181, 187 (D.C. Cir. 1969). The court has observed that

generic instructions may not be a cure-all for an erroneous

statement, see id. at 188, noting that a specific curative

instruction may be required in a particularly egregious case, see

knowingly participated in a scheme or artifice to obtain money or

property by means of false and fraudulent pretenses” and that the

defendant “did so with the intent to defraud.” Tr. 3/2/06 at 89. The

district court then instructed that a scheme or artifice “is merely a plan

for the accomplishment of an object.” Tr. 3/2/06 at 91. Similarly, the

district court instructed that to convict of first-degree fraud under

District of Columbia law, the jury must find, beyond a reasonable

doubt, that the defendant was engaged in a scheme or systematic

course of conduct, defining “scheme” as “any pattern of behavior

calculated to deceive persons of ordinary prudence and

comprehension.” Tr. 3/2/06 at 107. To the extent Hall now argues

the instructions were confusing, he points to nothing in the record,

such as a note from the jury seeking clarification, and the jury is

presumed to have followed the instructions; the record indicates that

the jury had a copy of the instructions in the jury room during its

deliberations.
25

United States v. North, 910 F.2d 843, 897–98 n.33 (D.C. Cir.

1990), and that contemporaneous objection to a specific

erroneous statement can “fix[] the statement in the jury’s mind

as one subject to doubt,” Gaither v. United States, 413 F.2d

1061, 1079–80 (D.C. Cir. 1969). This court has not yet held that

the district court has a sua sponte obligation to alert the jury to

the type of error that occurred here, either in the course of the

closing argument or in the final instructions to the jury. The

instant case does not warrant doing so. The district court

instructed the jury on the “scheme” elements of the charged

offenses, and that instruction was sufficiently curative,

particularly when the erroneous argument was acknowledged by

the prosecutor to be subject to the court’s instructions, see, e.g.,

Venable, 269 F.3d at 1091; United States v. Catlett, 97 F.3d 565,

573 (D.C. Cir. 1996). Unlike in Bradley, the government’s

evidence of Hall’s involvement in a scheme to defraud was

overwhelming, see Venable, 269 F.3d at 1092; United States v.

Webb, 255 F.3d 890, 901 (D.C. Cir. 2001). We therefore

conclude the error, although plain, did not prejudice the outcome

of the trial or seriously affect the fairness, integrity or public

reputation of the proceedings. 

B.

Under 15 U.S.C. § 77q(a), securities fraud can be

committed by (1) employment of any device, scheme, or artifice

to defraud; or (2) obtaining money by means of any untrue

statement of material fact or omission to state any material fact

necessary to keep the statements made from being misleading,

or (3) engaging in any transaction, practice, or course of

business which operates or would operate as a fraud or deceit

upon the purchaser. The indictment did not charge Hall with the

third way of committing securities fraud. However, the district

court instructed the jury that it could convict Hall of securities

fraud in any one of the three ways. Hall therefore contends that

the indictment was constructively amended in violation of the
26

Grand Jury Clause of the Fifth Amendment to the U.S.

Constitution, see, e.g., Stirone v. United States, 361 U.S. 212,

215–18 (1960), and so erroneously reduced the government’s

burden of proof because he was unaware he had to defend

against a third theory. 

Hall maintains that to show plain error, as he must because

he did not object to the instruction at trial, he need not show

prejudice because the Constitution protects a defendant’s right

to be tried only on “charges returned by a grand jury,” U.S.

CONST. amend. V, and the violation of this fundamental right

always affects substantial rights. See Stirone, 361 U.S. at

217–18. We need not decide this question. In United States v.

Cotton, 535 U.S. 625 (2002), the Supreme Court avoided

deciding whether this type of error affected the defendant’s

substantial rights because in that case the error did not 

“seriously affect the fairness, integrity or public reputation of

judicial proceedings,” the fourth prong of the plain error

analysis. Id. at 632–33. The same is true here. 

“[I]n most circumstances, an error that does not affect the

jury’s verdict does not significantly impugn the ‘fairness,’

‘integrity,’ or ‘public reputation’ of the judicial process.”

United States v. Marcus, No. 08-1341, slip op. at 7, (U.S. May

24, 2010) (quoting Johnson v. United States, 520 U.S. 461, 467

(1997)). Hall has not shown this error affected the verdict. 

Although suggesting it was a close question whether Hall had

engaged in a scheme to defraud and it was likely that the jury

used the “easier” theory, Hall’s appellate counsel was unable

during oral argument to explain how it would have been easier

for the jury to find Hall engaged in the third erroneouslyinstructed way of committing securities fraud than either of the

other two ways. Nor can we. The district court instructed the

jury that it could not convict unless it found that Hall acted

“willfully, knowingly, and with the intent to defraud” regardless
27

of which theory it relied upon. Tr. 3/2/06 at 98–99; see also 15

U.S.C. § 77x. United States v. Lawton, 995 F.2d 290 (D.C. Cir.

1993), on which Hall relies, is distinguishable, for the

amendment there allowed the jury to convict on facts that did

not constitute a federal crime and the special verdict form

indicated the jury convicted on that basis, id. at 294–95. 

Additionally, although claiming he focused his defense on

rebutting the first two theories, Hall does not suggest he would

have defended himself differently had he known the third theory

was at issue. See Appellant’s Br. 39. Hall testified and he

argued to the jury that he did not intend to defraud anyone, and 

the evidence against him was overwhelming. And while he

maintains the uncharged theory that the asset placement

agreements’ incorporation of D.C. law caused it to operate as a

fraud was not something subsumed within the proof of the

charged theories, see id. at 40, he overlooks the jury instructions

that to convict on mail and wire fraud the jury had to find Hall

engaged in a scheme to defraud. See supra note 5. Hall thus

fails to show that inclusion of the third theory in the jury

instructions seriously affected the fairness, integrity, or public

reputation of judicial proceedings.

IV.

 

Finally, Hall contends that his sentence was procedurally

and substantively unreasonable and he must be resentenced. The

district court sentenced Hall to 188 months in prison followed by

three years’ supervised release, and ordered him to pay $713,924

in restitution. Except as to the matter of the investors’ loss, the

district court adopted the findings in the presentence

investigative report. Hall maintains that: (1) The district court’s

“loss” finding was neither explained nor supported by sufficient

evidence; (2) The district court failed to explain adequately the

chosen sentence; (3) The 188-month sentence exceeds the fiveyear statutory maximum on certain mail and wire fraud counts;
28

and (4) The district court’s application of the abuse of trust

enhancement was plain error because Hall took the money as an

entrepreneur not as an investment broker. With the exception of

Hall’s challenge to the abuse of trust enhancement, the

government agrees a remand for resentencing is required. 

 This court reviews sentences for reasonableness using an

abuse of discretion standard. See Gall v. United States, 552 U.S.

38, 45 (2007). Where a sentence is procedurally unsound, there

has been an abuse of discretion. See United States v. McCants,

554 F.3d 155, 160 (D.C. Cir. 2009). This court applies a less

exacting plain error prejudice requirement in the sentencing

context, while still requiring a “reasonable likelihood that the

sentencing court’s obvious errors affected [the] sentence.”

United States v. Saro, 24 F.3d 283, 287–88 (D.C. Cir. 1994);

see also In re Sealed Case, 527 F.3d 188, 191–92 (D.C. Cir.

2008).

First, it is unclear how the district court determined the

amount the investors lost was more than one million dollars. At

sentencing the district court stated it was relying on the method

in United States v. Orton, 73 F.3d 331, 334 (11th Cir. 1996), and

the parties agree that under the “loss to losing victims” method

the amount of loss would have been $747,169, the amount the

jury ordered to be forfeited; alternatively, the government 

suggests the district court could have found that the amount of

loss was $713,924, the amount identified in the presentence

report as the net loss to investors. See Appellant’s Br. 43;

Appellee’s Br. 59 n.36. In rejecting both Hall’s figure

($713,924) and the government’s original figure ($1,394,234),

the district court stated that the loss was just over one million

dollars. Tr. 12/7/06 at 41. As a result, Hall’s sentence was

subject to a 16 point enhancement rather than a 14 point

enhancement under the U.S. Sentencing Guidelines (“U.S.S.G.”)

§ 2B1.1(b)(1), increasing his sentencing range from 151 to 188
29

months to 188 to 235 months. Hall points to the government’s

evidentiary submissions in maintaining there is insufficient

evidence for calculating the loss under the Orton method at over

one million dollars. See Appellant’s Br. 43–45. Although the

district court is required only to “make a reasonable estimate,”

U.S.S.G. § 2B1.1 cmt. n.3(C), we remand for the court either to

explain how it arrived at its estimate or to recalculate the amount

of the loss. 

Second, the district court did not explain the particular

sentence it imposed as 18 U.S.C. § 3553(c) requires. See In re

Sealed Case, 527 F.3d at 191. At a criminal offense level of 36, 

Hall’s guidelines range was 188 to 235 months, rather than the

151 to 188 months for a criminal offense level of 34. The

district court sentenced Hall to 188 months without explaining

the choice of that particular term of imprisonment. Tr. 12/7/06

at 41. When the guidelines range is greater than twenty-four

months, the district court “shall state in open court the reasons”

it is “imposing a sentence at a particular point within the range.”

18 U.S.C. § 3553(c)(1). Although the district court explained

that Hall would be sentenced “for what he did which was to

cheat, lie, and steal to enrich himself and which caused great

injury to others,” Tr. 12/7/06 at 37, and that no one was to blame

for the injury to investors “other than Mr. Robert Hall,” id. at 39,

the district court did not explain why, in view of the factors in 18

U.S.C. § 3553(a), a sentence of 188 months was necessary,

much less why the lower sentence that Hall requested would be

insufficient. A remand is, therefore, required. See In re Sealed

Case, 527 F.3d at 191; see also Rita v. United States, 551 U.S.

338, 356–58 (2007).

Third, the parties suggest that the district court should

impose an appropriate sentence on each count and specify how

each is to be served, concurrently or consecutively, instead of

imposing a single sentence of 188 months for all of the counts
30

of conviction. Tr. 12/7/06 at 41. The maximum penalties of

some counts were less than the term imposed. Because we must

remand the case for resentencing for the district court to explain

how it determined the amount of the loss and the resulting

offense level under U.S.S.G. § 2B1.1(b)(1), and to specify the

reasons for choosing the particular point in the sentencing range

pursuant to 18 U.S.C. § 3533(c), on remand the district court

also can specify sentences for the individual counts.

However, we find no plain error by the district court in

applying a two-level enhancement for abuse of trust under

U.S.S.G. § 3B1.3.7

 See United States v. Whren, 111 F.3d 956,

960 (D.C. Cir. 1997); Saro, 24 F.3d 283, 287–88. Application

Note 2, relied upon by the district court, stated that the

“adjustment also applies in the case in which the defendant

provides sufficient indicia to the victim that the defendant

legitimately holds a position of public or private trust . . . . For

example . . . a defendant who . . . perpetrates a financial fraud

by leading an investor to believe the defendant is a legitimate

investment broker.” U.S.S.G.§ 3B1.1 cmt. n.2 (2002) (now

7

 U.S.S.G. § 3B1.3 provides: 

If the defendant abused a position of public or private trust, or

used a special skill, in a manner that significantly facilitated

the commission or concealment of the offense, increase by 2

levels. This adjustment may not be employed if an abuse of

trust or skill is included in the base offense level or specific

offense characteristic. If this adjustment is based upon an

abuse of a position of trust, it may be employed in addition to

an adjustment under § 3B1.1 (Aggravating Role); if this

adjustment is based solely on the use of a special skill, it may

3B1.1 (Aggravating Role).
31

U.S.S.G. §3B1.1 cmt. n.3 (2009)).8

 The district court found that

Hall “had provided sufficient indicia to the victims that he was

a legitimate financial advisor when in truth he used that position

to defraud investors.” Presentence Investigation Report ¶ 61. 

Hall contends that the abuse of trust enhancement can apply

“[o]nly if the defendant exploited a special position of trust that

he either occupied or pretended to occupy,” Appellant’s Br.

48–49, and that he “never purported to be handling the victims’

money as a financial advisor, investment broker, or other

investment intermediary, fiduciary, or custodian,” id. at 49. 

Rather, he maintains he only was “soliciting their money as an

entrepreneur,” id. at 49. But First United’s website boasted of

its prowess as “a financial services powerhouse” with “services

. . . designed to assist clients for whom professional wealth

building consultation was previously unaffordable,” focusing on 

those “historically disenfranchised from the information that

safeguards their financial future.” Gov’t Ex.18. The corporate

8

 Application Note 2 provided in full:

This adjustment also applies in a case in which the defendant

provides sufficient indicia to the victim that the defendant

legitimately holds a position of private or public trust when,

in fact, the defendant does not. For example, the enhancement

applies in the case of a defendant who (A) perpetrates a

financial fraud by leading an investor to believe the defendant

is a legitimate investment broker; or (B) perpetrates a fraud by

representing falsely to a patient or employer that the

defendant is a licensed physician. In making the

misrepresentation, the defendant assumes a position of trust,

relative to the victim, that provides the defendant with the

same opportunity to commit a difficult-to-detect crime that

the defendant would have had if the position were held

legitimately.

U.S.S.G. § 3B1.3 cmt. n.2 (2002).
32

summary in the prospectus for the Trinidad project stated that

First United operated in the areas of “Financial Management,

Financial Planning, Venture Capital, [and] Asset Management.” 

Gov’t Ex. 24. Investors testified that Hall advised them of the

financial advantages of investing in First United and also to

reinvest the interest they had earned, while emphasizing the

investment discretion that they conferred upon him under the

asset placement agreements. Indeed, sentencing counsel

acknowledged that application of the enhancement was

“arguable,” Def.’s Sentencing Memorandum at 10.

The cases on which Hall relies do not involve plain error

review. Even so, in United States v. Mullens, 65 F.3d 1560,

1566 (11th Cir. 1995), the court concluded the evidence did not

show either the kind of “holding out” as an investment broker or

the kind of advertising that Hall made about himself and First

United as an “asset manager” of investors’ funds over which he

exercised control. Moreover, other circuits take a broader view

of the application of the enhancement than Hall urges, see

United States v. Morris, 286 F.3d 1291, 1299 n.13 (11th Cir.

2002) (citing cases). Perhaps more helpful to Hall is precedent

that the position of trust inquiry “must focus on the relationship

between the defendant and the victim from the perspective of the

victim,” United States v. Caplinger, 339 F.3d 226, 236 (4th Cir.

2003), and avoid application of the enhancement in “‘armslength commercial transactions where trust is created by the

defendant’s personality or the victim’s credulity,’” id. at 237

(quoting United States v. Bollin, 264 F.3d 391, 415 (4th Cir.

2001)). Yet even that court and other circuits uphold application

of the enhancement where the defendant has broad discretion to

act on behalf of the victim and the victim believes the defendant

will act in the victim’s best interest, see Bollin, 264 F.3d at

415–16, as the government’s evidence here showed. See

generally Morris, 286 F.3d at 1296–97 (noting that in absence

of a clear definition of “position of trust” in the Guidelines,
33

whether to apply the enhancement is “highly dependent on the

specific facts in each situation”). To the extent Hall views the

enhancement to be limited under Application Note 1 to

circumstances involving a narrow definition of “position of

trust,” Appellant’s Br. 48; see United States v. Tann, 532 F.3d

868, 875–76 (D.C. Cir. 2008), Application Note 2, by using the

word “also”, suggests that the district court’s reliance on

Application Note 2 was not plain error. 

Accordingly, we affirm the judgment of conviction but

remand for resentencing.