# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted June 28, 2019

Decided July 1, 2019

Before

J OEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 18-2733

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

HAKEEM EL BEY, Defendant-Appellant

. Appeal from the United States District
Court for the Northern District of Illinois,

Eastern Division.

No. 14 CR 00447-1

Edmond E. Chang,
J udge

.

O R D E R

This is Hakeem El Bey’s second appeal in his criminal case. In his first appeal, we

vacated his conviction and remanded for a n ew trial because comments from the district judge might have affected the impartiality of the jury. After another trial before a different district judge, a jury again found Be y (as he prefers to be called) guilty of mail fraud, 18 U.S.C. § 1341, and filing false claims for tax refunds with the Internal Revenue
Service, id. § 287. Bey appealed, but his appointed a ttorney asserts that the appeal is

frivolous and moves to withdraw. See Anders v. California , 386 U.S. 738 (1967). Counsel’s submission explains the nature of the case and addresses the issues that an appeal of this kind would be expected to involve. Be cause the analysis appears thorough, we limit NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 18-2733 Page 2

our review to the subjects that counsel discu sses and the issues that Bey raises in his response under Circuit Rule 51(b). See United States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014).

A grand jury indicted Bey on two counts of mail fraud and six counts of false claims for filing six fraudulent tax re turns with the IRS, each seeking a $300,000 “refund” for the Hakeem El Bey Trust for taxe s that, in reality, had not been withheld. Twice, Bey successfully obtained a refund to which he was not entitled. The indictment gave notice that the government sought forf eiture of assets including a piece of real estate and a car that Bey purchased shortly after receiving the money.

Bey represented himself throughout the pr oceedings. He consistently challenged the district court’s jurisdiction and subm itted an array of filings asserting typical arguments raised by “sovereign citizens.” See, e.g.

, United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011). In response to the governme nt’s motions in limine, the district court ruled that, at trial, Bey could not (1) test ify during his opening statement or closing argument (but could preview or recap what the evidence showed); (2) present to the jury irrelevant evidence or argument abou t his supposed jurisdictional exemption and the validity or constitutionality of the criminal statutes; or (3) argue for jury nullification or that he should be found not guilty because the IRS was negligent.

During the second trial, Bey filed a civ il suit against one of the prosecutors and then moved to delay the trial because the suit created a conflict of interest. The district

court concluded that the lawsuit was a friv olous delay tactic and proceeded with the trial. The jury found Bey guilty on all counts and found that forfeiture was appropriate. The district court later imposed a below-guideline 28-month sentence with no term of supervised release and ordered Be y to pay $600,000 in restitution.

Counsel first considers an argument that th e district court erred in allowing Beyto represent himself. A defendant has a right under the Sixth Amendment to selfrepresentation as long as he makes th at choice knowingly and intelligently. See Faretta v. California , 422 U.S. 806, 819, 835 (1975); United States v. Thomas , 833 F.3d 785, 792 (7th Cir. 2016). To ensure that Bey fully un derstood his choice, the district court inquired about Bey’s education and past employment, learning that he had a high school education and a history of full-time employment. The court also advised him that it was unwise to represent himself, ou tlined the disadvantages, and explained the maximum possible penalties and consequences. See Thomas , 833 F.3d at 792. Even afterNo. 18-2733 Page 3

the district court’s warnings, Bey repeatedly affirmed his desire to represent himself. Thus, it would be frivolous to argue that it was error to allow Bey to proceed pro se.

Counsel also ponders and rightly rejects as futile any challenge related to Bey’s pre- and post-trial filings that challenged th e district court’s authority over him because of his purported individual sovereignty. We agree with counsel th at Bey’s contentions are exactly the type that we have said “should be rejected summarily.” See Benabe

, 654 F.3d at 767; see also Bey v. Indiana , 847 F.3d 559, 559–60 (7th Cir. 2017).

Next, counsel contemplates an argument that the district court abused its discretion in granting the government’s motions in limine. We would review the evidentiary rulings under the defere ntial abuse-of-discretion standard. United States

v. Proano , 912 F.3d 431, 438 (7th Cir. 2019). As counsel concludes, the district court appropriately instructed Bey that he co uld not testify while giving his opening statement or closing argument but could discu ss and make inferences from the relevant

evidence. Cf. United States v. Durham , 211 F.3d 437, 442 (7th Cir. 2000); United States

v. Hall , 165 F.3d 1095, 1115 (7th Cir. 1999). The court also rightly barred Bey from introducing irrelevant evidence. F ED

. R. E VID . 402; Proano , 912 F.3d at 438. And it was proper to prohibit Bey from arguing for jury nullification, see Sorich v. United States

, 709 F.3d 670, 678 (7th Cir. 2013), and from asserting the IRS’s negligence as a defense to
fraud, see United States v. Peterson , 823 F.3d 1113, 1123 (7th Cir. 2016).

Counsel also explores an argument that Bey’s second trial violated the Double Jeopardy Clause and concludes that this cont ention, too, would be frivolous. We agree with counsel: “[w]hen a conviction is overturn ed on appeal, the general rule is that the Double Jeopardy Clause does not bar reprosecution.” Bravo-Fernandez v. United States

, 137 S. Ct. 352, 363 (2016) (brackets and qu otations marks omitted) (quoting Justices of Boston Mun. Court v. Lydon , 466 U.S. 294, 308 (1984)).

Bey proposes arguing that the civil suit that he filed against the prosecutor required halting the criminal trial. But we re adily agree with counsel that there is no viable challenge to the district court’s conc lusion that the civil suit did not create a conflict of interest. The criminal judge certif ied that Bey’s civil suit was frivolous (a conclusion with which the judge assign ed to the civil case later agreed, see Bey v. United

States , No. 18 C 2894 (N.D. Ill. July 11, 2018)), and the timing of the suit supports the inference that it was an improper delay ta ctic. And there is no evidence that the prosecutors had an improper personal, financial, or political interest in Bey’s prosecution, so it would be frivolous to argue that a conflict of interest existed.No. 18-2733 Page 4

See 28 U.S.C. § 528; In re Grand Jury Subpoena of Rochon , 873 F.2d 170, 175–76 (7th Cir. 1989).

Counsel also assesses possible challenges to the sufficiency of the evidence on both the mail fraud and false claim charges an d correctly concludes that they would be frivolous. The evidence showed that Bey kn ew the information he put on the tax returns
was false, that he sent the returns to th e IRS and received two checks each for $300,000 through the mail, and that he spent the ill- gotten money on cars and a house. This was enough to satisfy the different elements of the two offenses. See United States v. Dingle

, 862 F.3d 607, 614 (7th Cir. 2017) (mail fraud); United States v. Clarke

, 801 F.3d 824, 827–28 (7th Cir. 2015) (false claim).

Counsel next considers an argument that the district court erred by rejecting Bey’s proposed jury instruction for the mail fraud charge. Bey wished to instruct the jury that, in deciding whether his representa tions to the IRS were material, it should not consider whether the IRS had relied on them, but only whether they “had a natural tendency or capability to influence” the IRS’s decisions. A defendant generally is

entitled to an instruction on his theory of defense if the in struction is a correct statement of law, unless other instructions convey the same message. United States v. Brown

, 865 F.3d 566, 571–72 (7th Cir. 2017). Bey is correct that a false statement is material if it tends to influence, or is capable of influencing, the decisionmaker to whom it is made, and that demonstrating reliance is not necessary for mail fraud. See Neder v. United

States , 527 U.S. 1, 16, 24–25 (1999). And that is what the district court instructed the jury by giving this circuit’s pattern instruction de fining “material” for purposes of 18 U.S.C. §§ 1341 and 1343. There was no harm in giving the pattern instruction rather than using Bey’s wording, and therefore it would be pointless to argue that rejecting Bey’s

instruction was error.

Counsel also considers a challenge related to the forfeiture order. At Bey’s request, the district court submitte d the forfeiture issue to the jury. See F ED

. R. C RIM

. P. 32.2(b)(5)(A); United States v. Cherry , 921 F.3d 690, 693 (7th Cir. 2019). The evidence supported a nexus between Bey’s crimes and the property subject to forfeiture because the government entered into evidence the chec ks that Bey used to purchase the forfeited property, and the checks were from the same accounts into which Bey had deposited his illicit tax refunds before the purchases. See Cherry , 921 F.3d at 693. It thus would be

frivolous to attack the forfeiture order.No. 18-2733 Page 5

Finally, counsel contemplates challenges to Bey’s sentence but rightly finds no

nonfrivolous contentions. The district co urt adopted the presentence investigation report and, without objection from Bey, calculated a Guidelines range of 46 to 57 months in prison based on an offense leve l of 23 (based on an intended loss above $1.5
million, see U.S.S.G. § 2B1.1(a)(1), (b)(1)(I)) and criminal history category of I. See id. ch. 5, pt. A (sentencing table). We would no t find procedural error. Further, we would presume that Bey’s below-guidelines sentence is reasonable, see United States v. Patel

, 921 F.3d 663, 672 (7th Cir. 2019), and we agree wi th counsel that nothing rebuts that presumption here. The judge appropriately discussed the statutory factors, including the need to promote respect for the law, Bey’s mostly law-abiding history and good behavior in prison, and the need to de ter him and others from similar crimes.

See 18 U.S.C. § 3553(a). The judge also properly ordered Bey to repay the $600,000 he

swindled from the IRS as restitution. See id. §§ 3663A, 3664; United States v. Kennedy ; 726 F.3d 968, 973 (7th Cir. 2013).

Bey proposes arguing that the district court improperly allowed the government to make statements to the jury without pr oviding corroborating evidence. He adds that the court improperly prevented him from introd ucing facts related to the civil suit that he filed. Bey also asserts that the district court was hostile to him. But Bey provides no specifics for any of the arguments he proposes , and, like counsel, we find no support for them in the record. Bey’s last contention is that counsel failed to provide Bey with a transcript of the trial, but the transcript is part of the record, and Bey could have requested a copy at the government’s expense, see 28 U.S.C. § 753(f).

We GRANT counsel’s motion to wi thdraw and DISMISS the appeal.