### In the



# United States Court of Appeals

For the Seventh Circuit

No. 18

‐ 3633

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

A LFRED L. C ROSS

, Defendant

‐ Appellant.

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:17

‐ cr

‐ 30047

‐ NJR

‐ 1

— Nancy J. Rosenstengel

, Chief Judge.

A RGUED S EPTEMBER 25, 2019

— D ECIDED M AY 22, 2020

A MENDED ON D ENIAL OF R EHEARING AND

R EHEARING E N B ANC J UNE 18, 2020

Before R IPPLE

, R OVNER

, and B RENNAN

, Circuit Judges

.

R OVNER

, Circuit Judge. Alfred L. Cross pled guilty to five

counts of bank fraud, in violation of 18 U.S.C. § 1344(1). Shortly

before sentencing, he moved pro se to terminate his counsel,2 No. 18

‐ 3633

withdraw his guilty plea, and dismiss the case. The district

court denied all three motions. He now appeals the court’s

denial of his motion to withdraw his plea, and we affirm.

I.

Between April of 2011 and March of 2015, Cross unlawfully

obtained approximately $516,000 from several southern Illinois

banks through a simple scheme. Cross opened bank accounts

at out

‐ of

‐ state banks in the names of companies that he

claimed to own. He also opened checking accounts at seven

banks in southern Illinois, again in the names of companies he

purportedly owned. Over the course of four years, he wrote

large checks on the out

‐ of

‐ state accounts and deposited them

in his accounts at the Illinois banks, knowing that there were

insufficient funds in the out

‐ of

‐ state accounts to cover those

checks. In each of the charged instances, he then withdrew

from the Illinois banks all, or substantially all, of the money

that he had purportedly deposited, taking the funds in the

form of cashier’s checks, cash withdrawals, checks and debit

card purchases before any of the banks could discover that the

large checks that he had deposited were not backed by

sufficient funds in the out

‐ of

‐ state accounts.

Based on this conduct, he was charged with five counts of

bank fraud in violation of 18 U.S.C. § 1344(1). Each count of the

indictment alleged that Cross carried out his scheme to

defraud the banks by depositing large checks written on the

out

‐ of

‐ state accounts into banks in Illinois, knowing those

checks were not covered by sufficient funds, and then with

‐ drawing the funds before the banks could discover that theNo. 18

‐ 3633 3

deposited checks were not sufficiently funded. For example,

Count I charged:

On or about April 14, 2011, within the Southern

District of Illinois, ALFRED L. CROSS, defendant

herein, knowingly executed and attempted to

execute his scheme to defraud by making a deposit

into the “Al L. Cross

‐ Consolidated Billing Ac

‐

count” at Washington Savings Bank using a check in

the amount of $18,875, drawn on an account entitled

“Alfred L. Cross

‐ Cross/Hart/Page

‐ Special Ac

‐

count” at County Bank in Fresno California, which

check defendant knew to be NSF; In violation of

Title 18, United States Code, Section 1344(1).

R. 36, at 3. 1 The other four counts varied only in the dates of the

deposits, the amounts of the checks, the titles on the accounts,

and the names of the banks involved in the scheme.

The court appointed counsel to represent Cross in March of

2017, shortly after he was charged. But Cross had difficulty

with each of the three lawyers that the court ultimately

appointed. After approximately eight months, the court

allowed the first attorney to withdraw, and appointed a second

on November 30, 2017. On March 16, 2018, while represented

by the second attorney, Cross entered his guilty plea. Two

months later, his relationship with the second lawyer deterio

‐

rated and the court allowed that attorney to withdraw as well,

appointing a third counsel on May 24, 2018. Less than a week

1 “NSF” is an acronym used in the banking industry. It stands for “non

‐

sufficient funds..”4 No. 18

‐ 3633

later, Cross filed a pro se motion to withdraw his guilty plea,

which the court promptly struck, advising Cross that the court

would entertain only those motions that had been filed by

counsel. Despite that warning, on December 6, 2018, a few

days before his scheduled sentencing hearing, Cross filed three

pro se motions styled, “An [sic] Motion To Withdraw Guilty

Plea,” “Motion To Terminate Counsel,” and “Motion To

Dismiss Case Per A, Mauro, Violation.” 2

Rather than striking these motions outright, the court

decided to take them up at the sentencing hearing that was

scheduled for just a few days later. The Court’s order advised

counsel for both sides and the defendant himself to be pre

‐ pared to discuss the motions. At the hearing the court gave the

defendant, his counsel and the government opportunities to

address the motions. 3 The court denied the Motion to Termi

‐

nate Counsel on the merits and denied the Motion to Dismiss

because Cross had filed it pro se during a time that he was

represented by counsel. The court denied the Motion to

Withdraw Guilty Plea both on the merits and because Cross

had filed it pro se while represented by counsel. The court

resolved Cross’s numerous objections to the PSR, considered

2 “Mauro” is apparently a reference to United States v. Mauro

, 436 U.S. 340

(1978), which is cited in the motion as the basis for dismissal.

3 In his brief, Cross complains that the district court did not allow him to

argue his motions and cut him off when he attempted to speak. That is not

an accurate characterization of the hearing. Although the district judge

limited Cross’s remarks, she did allow him to address his three motions.

That he failed to make productive use of the opportunity was his own

misstep, and the court was not obligated to allow him unlimited time.No. 18

‐ 3633 5

the parties’ respective arguments as to sentencing, heard

Cross’s allocution, and analyzed the statutory sentencing

factors. The court then sentenced Cross to seventy

‐ eight

months’ imprisonment and five years of supervised release.

Cross appeals.

II.

On appeal, Cross asserts that the district court erred when

it denied his Motion to Withdraw Guilty Plea. We normally

review the district court’s denial of a motion to withdraw a

guilty plea for abuse of discretion, and we review any related

factual findings for clear error. United States v. Haslam

, 833 F.3d

840, 844 (7th Cir. 2016). When a defendant moves to withdraw

a plea after the court has accepted the plea but before sentenc

‐ ing, the defendant may withdraw the plea if he or she “can

show a fair and just reason for requesting the withdrawal.”

Fed. R. Crim. P. 11(d)(2)(B). See also Haslam

, 840 F.3d at 844. “A

guilty plea operates as a waiver of important rights, and is

valid only if done voluntarily, knowingly, and intelligently,

‘with sufficient awareness of the relevant circumstances and

likely consequences.’” Bradshaw v. Stumpf

, 545 U.S. 175, 183

(2005) (quoting Brady v. United States

, 397 U.S. 742, 748 (1970)).

A plea may be found invalid under this standard where a

defendant pleads guilty to a crime without having been

informed of the crime’s elements. Bradshaw

, 545 U.S. at 183;

Henderson v. Morgan

, 426 U.S. 637, 645–47 (1976).

Cross asserts here that he was not properly informed of all

of the elements of bank fraud. He argues that, in order to hold

him liable for bank fraud under section 1344(1), the govern

‐

ment was required to prove that the scheme to defraud6 No. 18

‐ 3633

involved a material falsehood or omission, citing Neder v.

United States

, 527 U.S. 1 (1999). But there was no mention of a

material falsehood or omission at his plea hearing, he asserts,

and the government instead proved nothing more than the

passing of bad checks, which he argues is not a federal offense.

Because he was not informed of all of the elements of the crime

to which he pled guilty and because the government presented

no evidence of the element of a material falsehood or omission,

he contends that his plea was not knowing and voluntary. He

urges us to conclude that the district court therefore abused its

discretion in denying his motion to withdraw his plea. He asks

that we vacate the judgment and remand for further proceed

‐ ings.

A.

As Cross himself concedes in his brief, “[t]here is a wrinkle

in this case.” Brief at 21. Aware that the court denied the

Motion to Withdraw Guilty Plea both on the merits and

, in the

alternative, because it was filed pro se

, Cross also advances an

argument that the district court abused its discretion when it

denied his Motion to Terminate Counsel. Specifically, he

contends that he expressed in his Motion to Terminate Counsel

an unequivocal request to proceed pro se

. But the court instead

misconstrued that motion as one to substitute counsel, he

contends, and then failed to conduct the colloquy necessary to

determine whether he could proceed pro se

. Summarily

denying his request to proceed pro se was an abuse of discre

‐

tion, he asserts. He suggests that the district court therefore

also abused its discretion when it denied his motion to with

‐

draw his guilty plea on the alternate ground that it was filed

pro se

. He then appears to ask that this court address his appealNo. 18

‐ 3633 7

of the denial of his motion to withdraw his guilty plea solely

on the merits, under the abuse of discretion standard. 4

Although it is unclear whether Cross seeks appellate relief

from the denial of his Motion to Terminate Counsel, it is clear

that he means to use the district court’s purported error on that

issue to set the standard for our review of the denial of the

Motion to Withdraw Guilty Plea, his primary issue on appeal.

Before considering the arguments relating to the Motion to

Withdraw Guilty Plea, we think it best to clear away the

underbrush of this secondary argument regarding the Motion

to Terminate Counsel.

We begin with Cross’s claim that the court erred when it

misconstrued his Motion to Terminate Counsel as a motion to

substitute counsel rather than as a request to proceed pro se

. “In

order to proceed pro se

, a defendant must ‘clearly and unequiv

‐ ocally’ raise the right to self

‐ representation.” United States v.

Mancillas

, 880 F.3d 297, 301 (7th Cir. 2018) (quoting Faretta v.

California

, 422 U.S. 806, 835 (1975)). We require an unequivocal

invocation of the right to proceed pro se in order “to prevent a

defendant from using an ambiguous waiver of the right to

counsel as a tool to overturn his or her conviction.” Mancillas

,

4 We hedge our description of Cross’s argument both because it is difficult

to untangle the logic in this part of his opening brief and because he

emphasizes in his reply brief that “he does not argue that the prosecutor’s

mischaracterization of his motion to terminate counsel entitles him to

relief.” Reply Brief at 1. Yet the argument in the opening brief seems to

suggest that he is at least seeking relief for that alleged error by the court

below by urging this court to alter the standard of review for the denial of

his motion to withdraw his guilty plea.8 No. 18

‐ 3633

880 F.3d at 301. See also United States v. Campbell

, 659 F.3d 607,

612 (7th Cir. 2011), vacated on other grounds, sub. nom.

Campbell v. United States

, 568 U.S. 802 (2012) (describing the

rationales for requiring that the demand to proceed pro se be

unequivocal).

Cross’s purported request to proceed pro se does not meet

this standard. Cross relies heavily on the title of his motion,

noting that it seeks to “terminate” counsel, and on a letter from

his counsel that he attached to the motion. 5 But nowhere in the

Motion to Terminate Counsel did Cross express a desire to

represent himself should the court grant his request to termi

‐

nate his third appointed lawyer. Instead, Cross asserted in the

Motion that counsel was ineffective because he was insuffi

‐ ciently aware of the facts and law related to the charges against

Cross. Cross also complained that counsel “inherited” the

errors of the two lawyers who came before him, refused to file

a motion to withdraw the guilty plea, and failed to correct

claimed errors in the presentence report. R. 153. On the day of

the hearing, when the court inquired whether Cross wished to

“persist in the motions that [he] filed” the prior week, he

responded affirmatively and then spoke for two pages of

transcript without ever indicating that he wished to represent

himself. In fact, at no point during the hearing did Cross

5 The attached letter from Cross’s third attorney explained the reasons that

counsel would not comply with Cross’s demand that he file a motion to

withdraw the guilty plea. Counsel ends the letter by clearly stating that he

will not file the motion, and advising Cross that, if he wants to file the

motion, “you will need to ask the Court to let you represent yourself.” The

quoted portion of the letter is underlined by hand, presumably by Cross

himself. R. 123, at 5.No. 18

‐ 3633 9

mention that he wished to represent himself. Rather, he simply

expressed dissatisfaction with his current and former attor

‐

neys. A defendant seeking to “terminate” counsel could be

requesting to substitute new counsel, be seeking to proceed pro

se entirely, or be requesting to present a particular motion pro

se even though represented by counsel. See United States v.

Patterson

, 576 F.3d 431, 436 (7th Cir. 2009) (noting that whether

a defendant may act as co

‐ counsel along with his own attorney

is a matter within the discretion of the district court).

Without any statement that Cross wished to represent

himself, much less an unequivocal request to do so, the court

reasonably interpreted Cross’s motion as one to substitute

counsel, which it appropriately denied after rejecting Cross’s

complaints about his third lawyer. In response to Cross’s prior

difficulties with his lawyers, the court had twice appointed

new counsel, and it was reasonable to construe this ambiguous

motion as asking for similar relief. In determining whether a

court abuses its discretion in denying a motion to substitute

counsel, a court considers, among other things, the timeliness

of the motion, the adequacy of the court’s inquiry into the

defendant’s motion, and whether the conflict was so great that

it resulted in a total lack of communication preventing an

adequate defense. United States v. Best

, 426 F.3d 937, 947 (7th

Cir. 2005). Here, the court found that counsel had competently

represented Cross, and that counsel had appropriately filed

objections to the PSR that the court would take up at the

appropriate time. The court also noted that Cross appeared to

be trying to simply delay the proceedings. Importantly, the

court also found that there was no breakdown of communica

‐

tion between Cross and his lawyer that might justify substitu

‐10 No. 18

‐ 3633

tion of counsel. Finding no abuse of discretion in the court’s

denial of the Motion to Terminate Counsel, we turn to the

primary issue on appeal unencumbered by this side issue.

B.

The district court provided two reasons for denying the

Motion to Withdraw Guilty Plea. First, it denied the motion on

the merits, finding that Cross had knowingly and voluntarily

pled guilty. Second, the court rejected the motion because it

was filed pro se even though the defendant was represented by

counsel. As noted above, we normally review the merits of a

denial of the Motion to Withdraw the Guilty Plea for abuse of

discretion. Haslam

, 833 F.3d at 844. As we discuss below,

however, review in this case is for plain error only. We review

for abuse of discretion a district court’s denial of a motion filed

pro se by a defendant who is represented by counsel. Patterson

,

576 F.3d at 436.

1.

A defendant does not have a right to represent himself

when he is also represented by counsel. Patterson

, 576 F.3d at

436. A court thus has “wide discretion to reject pro se submis

‐

sions by defendants represented by counsel,” and there was no

abuse of discretion in the court’s decision to reject Cross’s

motion on that basis here. A careful reading of the transcript

reveals that the court had concluded that Cross was filing this

motion for the purpose of delaying the proceedings, noting

that he had filed his latest round of pro se motions just two

business days before his sentencing hearing, after proceedings

that had already been in progress for twenty

‐ one months. The

court also remarked that Cross had been represented by highlyNo. 18

‐ 3633 11

competent lawyers including two lawyers whom the court

characterized as among the best panel attorneys available in

the district. That included the attorney who represented him at

the time of sentencing, who had also refused to file a motion to

withdraw the guilty plea, explaining in a letter that Cross

attached to his Motion to Terminate Counsel the reasons for

that refusal. The court was well within its discretion in denying

the motion because it had been filed pro se when Cross was

represented by highly competent counsel who had refused to

file the very same motion for cogent reasons.

2.

We turn to the merits of the court’s refusal to allow Cross

to withdraw his guilty plea. Cross contended that he was not

advised of one of the elements of bank fraud, namely, the

requirement that the government prove a misrepresentation or

omission of a material fact. He also contends that the govern

‐

ment did not present evidence of this element and that he did

not admit to conduct that would satisfy that element of the

crime. He maintains that, because of these failures, his guilty

plea was not knowing and voluntary, and the court should

have allowed him to withdraw it on that basis. The govern

‐

ment responds that section 1344(1) does not require that a

scheme to defraud involve false statements or representations. 6

6 The government also argued that Cross’s scheme resembles check kiting,

and that check kiting is unlawful under section 1344(1) without additional

proof of a material misrepresentation. We decline to consider this additional

argument.12 No. 18

‐ 3633

Cross urges us to review this issue under the abuse of

discretion standard. The government agrees that the abuse of

discretion standard applies, but “we are not bound to accept

the government’s concession when the point at issue is a

question of law.” Krieger v. United States

, 842 F.3d 490, 499 (7th

Cir. 2016). Cf. Estrada

‐ Martinez v. Lynch

, 809 F.3d 886, 894 (7th

Cir. 2015) (whether the Board of Immigration Appeals applied

the proper standard of review is a legal question that is

reviewed de novo ). The government based its concession

entirely on the contents of Cross’s pro se filings, and we have

concluded that the district court did not abuse its discretion in

ignoring those filings because Cross was represented by

competent counsel. Because Cross “never properly requested

that the district court vacate his guilty plea, we review for plain

error.” Patterson

, 576 F.3d at 438. See also Puckett v. United

States

, 556 U.S. 129, 133

‐ 34 (2009) (finding that Rule 52(b)’s

plain

‐ error test applies to a forfeited claim that the government

failed to meet its obligations under a plea agreement).

In order to reverse for plain error, we must find (1) error (2)

that is plain, and (3) that affects the defendant ʹ s substantial

rights. United States v. Olano

, 507 U.S. 725, 732 (1993); United

States v. Stewart

, 902 F.3d 664, 675 (7th Cir. 2018). An error is

plain if it is clear or obvious. Olano

, 507 U.S. at 734; Stewart

, 902

F.3d at 675. And an error affects the defendant ʹ s substantial

rights when it is prejudicial, that is, when it has affected the

outcome of the district court proceedings. Olano

, 507 U.S. at

734; Stewart

, 902 F.3d at 675. Finally, “Rule 52(b) leaves the

decision to correct the forfeited error within the sound discre

‐

tion of the court of appeals, and the court should not exercise

that discretion unless the error ‘seriously affect[s] the fairness,No. 18

‐ 3633 13

integrity or public reputation of judicial proceedings.’” Olano

,

507 U.S. at 732 (quoting United States v. Young

, 470 U.S. 1, 15

(1985)).

We recently addressed the materiality prong of section 1344

in United States v. LeBeau

, 949 F.3d 334 (7th Cir. 2020). The

defendant there was also charged with bank fraud under

section 1344(1), although for a very different scheme than the

one at issue here. LeBeau obtained bank loans in part by

submitting false financial statements that failed to disclose his

significant debts. He also misrepresented to the bank the status

of a building project in order to persuade the bank to delay

foreclosing on the loan. At trial, the jury instructions failed to

state that the government was required to prove that the

“scheme involved a materially false or fraudulent pretense,

representation, or promise ...,” as recommended in the

Seventh Circuit Pattern Jury Instructions. The panel concluded

that LeBeau waived the issue because he affirmatively ap

‐ proved the wording of the jury instructions.

But the panel also noted that the issue was a serious one:

In Neder v. United States

, 527 U.S. 1, 119 S.Ct. 1827,

144 L.Ed.2d 35 (1999), the Supreme Court held that

“materiality of falsehood is an element of the federal

... bank fraud statute[ ].” Id

. at 25, 119 S.Ct. 1827. It

did not limit that holding to section 1344(2). Rather,

it determined that “fraud” itself requires the element

of materiality. Id

. at 23, 119 S.Ct. 1827. We have since

said that Neder requires “district courts [to] include

materiality in the jury instructions for section 1344.”14 No. 18

‐ 3633

United States v. Reynolds

, 189 F.3d 521, 525 n.2 (7th

Cir. 1999).

LeBeau

, 949 F.3d at 341. The commentary for the Pattern

Instruction for section 1344 provided additional guidance:

Although the Seventh Circuit has not yet addressed

the application of Neder to § 1344(1) specifically, the

Ninth Circuit, in United States v. Omer

, 395 F.3d 1087

(9th Cir. 2005), held that materiality is an element of

a § 1344(1) violation under Neder

. In light of the

general admonitions in Neder and Reynolds

, this

instruction has been modified to reflect this require

‐

ment.

LeBeau

, 949 F.3d at 341 (quoting Pattern Criminal Jury Instruc

‐

tions of the Seventh Circuit (2012 Ed.) (plus 2015–2017 and

2018 changes), h t tp: / /www.ca7.uscour ts.gov /

pattern

‐ jury

‐ instructions/7th_criminal_jury_instr.pdf, at 448).

We acknowledged that we have not always been consistent in

following this guidance but advised that “[t]he better course,

consistent with Neder

, is to require the materiality instruction

on all bank

‐ fraud charges, whether brought under section

1344(1) or (2),” until we receive greater clarity from the

Supreme Court on what is required. LeBeau

, 949 F.3d at 341.

LeBeau makes clear that our case law on this issue has not

always been consistent, and any error in failing to include the

element of material misrepresentation therefore was not clear

or obvious. As such, it does not meet the plain error standard.

The government assured the panel in LeBeau that its current

practice is to include the materiality element in all section 1344

cases, a prudent policy. Something must distinguish fraudNo. 18

‐ 3633 15

from theft, and the Supreme Court made clear in Neder that a

materially false pretense fits the bill. See also United States v.

Freed

, 921 F.3d 716, 722 (7th Cir. 2019) (noting that a bank fraud

conviction requires the government to prove, among other

things, that the scheme involved a materially false or fraudu

‐

lent pretense, representation, or promise).

As for Cross, we conclude by noting that there is some

evidence in the record that at least part of his scheme involved

material misrepresentations. United States v. Arenal

, 500 F.3d

634, 638 (7th Cir. 2007) (a district court may consider not only

the information proffered at the plea hearing, but also informa

‐

tion contained in the PSR to establish a factual basis before

entry of judgment and imposition of sentence). As the district

court noted, banks normally place holds on large checks,

refusing to make the deposited funds available until the

originating banks confirm that there are sufficient funds to

cover the deposited checks. R. 174, Sent. Tr. at 59–60. Some of

the Illinois banks where Cross engaged in his scheme failed to

follow their own rules on check holds, releasing funds to Cross

without first ensuring that the deposits were valid. The district

court noted that Cross “schmoozed” one bank employee and

“scammed” others in order to convince them to bend the rules

and release the funds. The court also remarked that Cross

targeted the youngest and least experienced bank employees

and then always had an excuse or story when the banks

contacted him after the deposited checks failed to clear. An

Illinois bank employee was fired as a result of falling for

Cross’s assurances. R. 174, Sent. Tr. at 59–60. On this record,

we decline to find that any error on the material misrepresenta

‐16 No. 18

‐ 3633

tion element seriously affected the fairness, integrity or public

reputation of judicial proceedings. Olano

, 507 U.S. at 732.

AFFIRMED.