In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 15-1792 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

BRUCE JONES, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division. 

No. 1:12-cr-00072-TWP-DML-1 — Tanya Walton Pratt, Judge. 

____________________ 

ARGUED SEPTEMBER 8, 2016 — DECIDED DECEMBER 21, 2016 

____________________ 

Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges. 

HAMILTON, Circuit Judge. This appeal in a criminal case 

presents an unusual combination of offenses: health care 

fraud and unlawful possession of firearms and ammunition. 

Defendant Bruce Jones was both a family counselor and a firearms enthusiast who collected dozens of guns and thousands 

of rounds of ammunition. Jones had a prior felony conviction, 
2 No. 15-1792 

so it was a federal crime for him to possess firearms and ammunition. The FBI discovered these weapons while investigating Jones for allegedly fraudulent health care billing. A 

federal grand jury charged Jones with three counts of possessing firearms and ammunition in violation of 18 U.S.C. 

§ 922(g)(1) and one count of health care fraud in violation of 

18 U.S.C. § 1347. The district court bifurcated the case for separate trials on the firearms charges and the health care fraud 

charge. The juries convicted Jones on all counts. The district 

court sentenced Jones to 90 months in prison on his fraud conviction and 100 months on each felon-in-possession conviction, with all terms to be served concurrently.

Jones appeals and raises four distinct issues. First, he contends that the ex parte pretrial restraint of certain life insurance 

policies violated his Fifth and Sixth Amendment rights. Second, he argues that the district court erroneously denied his 

request for new counsel during his fraud trial. Third, he contends that he was denied the opportunity to testify at his fraud 

trial. Fourth, he challenges the court’s sentencing guideline 

computation. We affirm in all respects. 

I. Pretrial Restraint of Assets

Jones first challenges the pretrial restraint of six life insurance policies titled in his name. The government listed these 

policies in a forfeiture allegation in the controlling, second superseding indictment. On April 15, 2014, following Jones’s 

conviction on the felon-in-possession charges but before his 

fraud trial, the government filed an ex parte application under 

28 U.S.C. § 2461(c) and 21 U.S.C. § 853(e)(1)(A) to restrain 

those policies in anticipation of post-conviction forfeiture. 

The district court entered a restraining order that same day. 

Jones contends that the pretrial restraint violated his Sixth 
No. 15-1792 3

Amendment right to hire counsel of choice and his Fifth 

Amendment right to due process of law.

Ordinarily, we review de novo questions of constitutional 

law. See Anderson v. Milwaukee County, 433 F.3d 975, 978 (7th 

Cir. 2006). But there is a wrinkle here: Jones did not object at 

the time that his life insurance policies were restrained. Nor 

did he raise an objection at any point during the district court 

proceedings even though the restraining order invited him to 

“petition for a pre-trial hearing if he can demonstrate that he 

has no other assets available with which to retain counsel” or 

if he could show that the restrained policies were “not subject 

to forfeiture.” Where a defendant fails to lodge a timely objection before the district court, we review only for plain error, 

assuming the defendant has not actually waived the point. 

See United States v. Bickart, 825 F.3d 832, 837 (7th Cir. 2016) 

(“To demonstrate plain error, defendants must show: (1) an 

error or defect, (2) that is clear or obvious, (3) affecting the 

defendants’ substantial rights. Even then, we have discretion 

to correct the error if it seriously impugns the fairness, integrity, or public reputation of the judicial proceedings, but we 

need not do so.”) (citations omitted). 

To excuse his failure to raise this issue in the district court, 

Jones argues that the legal landscape shifted while his appeal 

was pending, creating an analytical path that was not available to him in 2014. Specifically, Jones points to Luis v. United 

States, 578 U.S. —, 136 S. Ct. 1083 (2016). In Luis, the Supreme 

Court held that the “pretrial restraint of legitimate, untainted 

assets needed to retain counsel of choice violates the Sixth 

Amendment.” Id. at 1088 (plurality opinion) (emphasis 

added); see also id. at 1096 (Thomas, J., concurring in the judg-
4 No. 15-1792 

ment) (agreeing with plurality that a “pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice”). In so holding, the plurality 

distinguished two earlier cases in which the Court had found 

no Sixth Amendment defect in forfeiture proceedings. Id. at 

1090–91 (plurality opinion). Compare Caplin & Drysdale, Chtd. 

v. United States, 491 U.S. 617 (1989) (post-conviction forfeiture 

that deprived defendant of funds he would have used to pay 

attorney did not violate Sixth Amendment because, pursuant 

to statute, title to funds vested in United States upon defendant’s commission of crime), with United States v. Monsanto, 491 

U.S. 600 (1989) (pretrial restraint that deprived defendant of 

tainted assets traceable to crime likewise did not violate Sixth 

Amendment). 

In Luis, unlike Caplin & Drysdale and Monsanto, the restraining order prevented the defendant from using her own 

untainted funds to hire counsel. Luis, 136 S. Ct. at 1090 (plurality opinion). The government’s interest in Luis’s untainted 

funds was similar to that of an unsecured creditor, who 

“someday might collect from a debtor’s general assets” but 

“cannot be said to have any present claim to, or interest in, the 

debtor’s property.” Id. at 1092. Citing Luis, Jones argues that 

the government now bears the burden to demonstrate at the 

outset that the assets it wants to restrain are tainted. 

Jones may read Luis too expansively. Luis says nothing 

about timing or burden shifting. On the contrary, the government in that case conceded that the district court had restrained untainted funds. Id. at 1088. But even assuming without deciding that Jones’s interpretation of Luis is correct, that 

case would have offered Jones at best an additional line of at-
No. 15-1792 5

tack on the district court’s restraining order. Under long-settled circuit law, the pretrial restraint of a defendant’s assets 

“without affording the defendant an immediate, 

postrestraint, adversary hearing at which the government is 

required to prove the likelihood that the restrained assets are 

subject to forfeiture violates the due process clause to the extent that it actually impinges on the defendant’s qualified 

sixth amendment right to counsel of choice.” United States v. 

Moya-Gomez, 860 F.2d 706, 731 (7th Cir. 1988).1 If the district 

court finds that the defendant has insufficient alternative assets with which to pay counsel, but the government fails to 

justify its retention of all the frozen assets, “then the court 

must order the release of funds in an amount necessary to pay 

reasonable attorneys’ fees for counsel of sufficient skill and 

experience to handle the particular case.” Id. at 730. 

Assuming that Jones’s life insurance policies were not

tainted by his fraud, and assuming further that he genuinely 

needed those assets to retain counsel, we cannot understand 

why he failed to invoke his right to an immediate hearing under Moya-Gomez. Conversely, if the life insurance policies were

tainted, or if Jones had sufficient alternative assets available 

 1 Jones argues that a post-restraint hearing is insufficient and that he 

should have been afforded a hearing prior to the restraint on his property.

We have twice declined to decide whether a pre-deprivation hearing is 

necessary in this context, see United States v. Phillips, 434 F.3d 913, 916 (7th 

Cir. 2005) (per curiam); United States v. Kirschenbaum, 156 F.3d 784, 793 (7th 

Cir. 1998), and the Supreme Court has likewise declined to decide the 

question, see Monsanto, 491 U.S. at 615 n.10. We again decline to consider 

the question here. As explained below, Jones has not shown a bona fide 

need for the restrained assets. Thus, as in Phillips, this case presents an 

“inadequate vehicle by which to consider the issue,” 434 F.3d at 916. 
6 No. 15-1792 

to him, then Luis would not have strengthened his litigating 

position. Either way, we find no plain error. 

In addition to a due process argument under Moya-Gomez, 

Jones could have presented a statutory argument based on the 

language of 21 U.S.C. § 853(e). The overwhelming majority of 

courts to consider the question have held that § 853(e) “conveys Congress’s intent to authorize the restraint of tainted assets prior to trial, but not the restraint of substitute assets.” 

United States v. Parrett, 530 F.3d 422, 431 (6th Cir. 2008); see 

also, e.g., United States v. Jarvis, 499 F.3d 1196, 1204 (10th Cir. 

2007) (“[A]ll but one federal court of appeals to address the 

issue has determined the legislative silence regarding substitute property in § 853(e) precludes pre-conviction restraint of 

substitute property.”). 

Jones points out that the government’s ex parte motion asserted there was probable cause to believe that his life insurance premiums and contributions “constitute or derived from 

proceeds obtained from the health care fraud, or represent a 

substitute asset, and are therefore subject to forfeiture.” Jones 

also notes that the government cited In re Billman, 915 F.2d 

916, 921 (4th Cir. 1990), which held that a similar forfeiture 

statute, 18 U.S.C. § 1963, authorizes pretrial restraint of substitute assets. But we have never held as much. No controlling 

precedent barred Jones from asking the district court to construe § 853(e) as applying only to tainted assets, an argument 

that at least one district court in this circuit has accepted. See 

United States v. Toran, No. 13-30072, 2015 WL 1968698, at *7 

(C.D. Ill. May 1, 2015). 

Thus, Jones could have advanced a constitutional argument, a statutory argument, or both in response to the re-
No. 15-1792 7

straining order. Any one of these approaches could have delivered the same relief he believes he might have obtained under Luis. Jones forfeited his challenge to the restraining order 

by failing to object in the district court, so we review that order only for plain error. 

We find no plain error. Nothing in the record tends to 

show that the life insurance policies were not tainted by 

Jones’s fraud. Further, it is unclear whether Jones even needed 

the life insurance policies to retain counsel.2 A presentence investigation report prepared in December 2013 estimated 

Jones’s net worth (exclusive of the insurance policies) at over 

half a million dollars. Granted, most of that net worth was attributable to real estate, and the government apparently filed 

notices of lis pendens against some of Jones’s properties. But a 

lis pendens notice does not deprive real estate of all marketable 

value; it simply places successors in interest on notice of a potential competing claim. Further, it appears that at least two 

of the lis pendens notices were lifted in August 2014, well in 

advance of Jones’s fraud trial.

In any event, because Jones never objected to the restraint 

on his life insurance policies, the district court had no reason 

to probe these matters in an evidentiary hearing. The district 

court committed no plain error by entering the pretrial restraining order, which invited Jones to challenge it promptly 

if he thought there were grounds to do so. Having failed to do 

so, Jones is not entitled to relief based on his first argument. 

 

 2 It is also unclear whether Jones could have simply liquidated those 

policies at will. 
8 No. 15-1792 

II. Request for Substitute Counsel

Jones next argues that the district court improperly denied 

his request for new counsel during his fraud trial, which was 

the second of the two. He had an opportunity to explain his 

reasons for requesting substitute counsel, so we review the 

district court’s denial for abuse of discretion. United States v. 

Harris, 394 F.3d 543, 551 (7th Cir. 2005). We consider such factors as the timeliness of the defendant’s motion, the adequacy 

of the district court’s inquiry into the motion, and whether the 

conflict resulted in a total lack of communication preventing 

an adequate defense. Id. at 552. No single factor is dispositive. 

If we find an abuse of discretion, we may nevertheless uphold 

the district court’s decision “unless the defendant establishes 

that he was deprived of his Sixth Amendment right to effective assistance of counsel.” United States v. Bjorkman, 270 F.3d 

482, 500 (7th Cir. 2001). 

The record shows that Jones had a rocky relationship with 

his appointed attorney, Mark Inman, who is an experienced 

criminal defense lawyer in federal cases. Despite that rocky 

relationship, we conclude that the district judge did not abuse 

her discretion in denying Jones’s request for substitute counsel. We do not reach the separate question whether Jones’s 

Sixth Amendment right was compromised. 

Turning to the three factors identified in Harris, we consider first the timeliness of Jones’s request. Jones asked for a 

new lawyer three weeks before his fraud trial was scheduled 

to begin. Three weeks is not much time to prepare for such a 

trial. We assume that if the district court had appointed a new 

lawyer an immediate request for a continuance would have 

been expected. Even so, we have previously recognized that 

requests for new counsel submitted several weeks before a 
No. 15-1792 9

critical proceeding may be timely under the circumstances. 

Compare United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 

1992) (request made one month before trial did not “represent[] a tactic to secure a continuance on the eve of trial”), and 

United States v. Ryals, 512 F.3d 416, 419 (7th Cir. 2008) (request 

three weeks before sentencing hearing was timely, particularly where breakdown in communication between attorney 

and client did not occur until after trial), with United States v. 

Hall, 35 F.3d 310, 313–14 (7th Cir. 1994) (request after defendant pled guilty and just ten days before sentencing hearing 

appeared to be an “effort to derail the sentencing that was fast 

approaching”), and United States v. Burgos, 539 F.3d 641, 646 

(7th Cir. 2008) (request on morning of trial came too late). 

The second factor—adequacy of the inquiry—weighs in 

the government’s favor. After receiving Jones’s letter, the district judge referred the matter to a magistrate judge for a hearing. During that hearing, the magistrate judge gave Jones an 

opportunity to explain his concerns. The magistrate judge 

also heard from attorney Inman and from the government. In 

denying Jones’s request, the magistrate judge explained that 

Jones’s dispute with his lawyer primarily concerned trial 

strategy and that such disputes are insufficient grounds for 

replacement of appointed counsel. Jones renewed his request 

a week later. The district judge held an ex parte session in 

which Jones explained his complaints about Inman. At the 

end of the session, the judge denied Jones’s renewed request. 

After the fraud trial but before sentencing, Jones asked once 

more for a new lawyer. The district judge delegated the request to a different magistrate judge who heard from both 

Jones and Inman in a January 2015 hearing. The magistrate 
10 No. 15-1792 

judge denied Jones’s third request, noting that he found Inman’s representations “entirely credible” and that Jones failed 

to demonstrate either deficient representation or prejudice. 

While Jones may disagree with the judges’ conclusions, he 

had ample opportunity to present his concerns to the district 

court. In this respect, Jones’s case is unlike cases where we 

have found insufficient inquiries into requests for substitute 

counsel. See, e.g., Ryals, 512 F.3d at 419–20 (inquiry insufficient where judge asked attorney just two questions and attorney said unequivocally that he could not represent defendant adequately at sentencing); Zillges, 978 F.2d at 371–72 (inquiry insufficient where judge ignored defendant’s letter until 

morning of trial and then failed to ascertain why defendant 

was unhappy with attorney); United States v. Morrison, 946 

F.2d 484, 498–99 (7th Cir. 1991) (inquiry insufficient where 

judge denied defendant’s motion without holding a hearing). 

Here, the district judge and the two magistrate judges “listened to [defendant’s] concerns, and responded thoughtfully 

and appropriately.” Bjorkman, 270 F.3d at 501. The inquiry was 

adequate here. 

The third factor, the nature of the conflict between attorney and client, gives us pause. Jones points to two defects in 

his relationship with Inman: (1) a breakdown in their communication, and (2) a series of incidents in which Inman portrayed Jones in a negative light to the court. 

As to the communication breakdown, Jones identifies letters that he sent Inman during the months leading up to trial. 

These letters show that Jones was not satisfied with the attention he was receiving. On September 24, for instance, Jones 

complained that Inman had visited him just four times during 

a six-month period, while on October 9, he wrote that Inman’s 
No. 15-1792 11

“ten minute visit” that day was not what Inman had promised. We hesitate to place too much importance on Jones’s letters, which show that Jones harbored unrealistic expectations 

about his attorney’s obligations. For example, in the September 24 letter, Jones directed Inman to answer “immediately” 

twenty-seven written questions. He made similar demands 

on October 3 and again on October 9. Jones also referred to a 

fourteen-page letter that apparently contained directions for 

Inman to follow. While an attorney “undoubtedly has a duty 

to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy,” Florida v. 

Nixon, 543 U.S. 175, 187 (2004) (citation omitted), the attorney 

also has the “full authority to manage the conduct of the trial” 

and need not consult with the client on “every tactical decision,” Taylor v. Illinois, 484 U.S. 400, 418 (1988). It is difficult on 

the face of this record to determine whether the conflict between Inman and Jones at that point involved a true breakdown in communication or simply a mismatch of expectations.

By the time of trial, however, the relationship between the 

two had grown quite strained. Inman made a series of remarks to the court that reflected his frustration with his client. 

At a hearing on October 20, Jones complained to the court that 

Inman had “never gone over the defense” with him. Inman 

disagreed, telling the judge that Jones’s statement was “just 

not true” and adding that Jones was “incapable of telling the 

truth.” On October 27, Jones told the court that Inman had 

said he would face a consecutive sentence if he testified. Inman again disagreed, saying that Jones “can’t tell ... the 

truth.” At a hearing during the sentencing phase, Inman recounted Jones’s conduct during his first trial, saying that Jones 

had “faked a heart attack” and “concocted a defense.” Such 
12 No. 15-1792 

statements, accurate though they were, obviously cast doubt 

on the viability of the attorney-client relationship. 

These matters are left to the sound discretion of the district 

judge, however, because she was much closer to the friction 

between client and attorney and to its larger context in the 

case. Despite the obvious tension between Inman and Jones, 

we find no abuse of discretion here. The record shows that 

Jones had engaged in a prolonged pattern of obstructionist 

behavior. Against that backdrop, the district judge could reasonably have inferred that Jones’s request for a new lawyer 

was yet another attempt to delay justice. In fact, prior to Inman’s appointment as his lawyer, Jones had cycled through 

three other attorneys or legal teams during just the adversarial stage of the proceedings. He had also requested multiple 

delays for the first trial, on the firearms charges. Then, on the 

morning trial was set to begin, Jones failed to appear. He had 

taken a cocktail of medications that caused him to lose consciousness. The scheduled trial had to be delayed again. 

At Jones’s first sentencing hearing, in imposing a two-level 

enhancement for obstruction, the district judge said that 

Jones, a certified addiction specialist, was “very much familiar with the effects of the cocktail of medications that he consumed: sleeping pills, muscle relaxer, and benzodiazepine. 

And even a lay person would know that taking that combination would make you incapacitated the morning of your jury 

trial.” Later, in denying Jones’s request for a new lawyer, the 

district judge linked her decision to Jones’s long pattern of obstructionist behavior: 

The Court has considered the timeliness of Defendant’s eleventh hour request to change CJA 

counsel, the extent of any conflict or breakdown 
No. 15-1792 13

in communication between lawyer and client[] 

(including the client’s responsibility for any conflict), the number of attorneys who have been 

assigned to this Defendant, and the pattern of 

engaging in intentional delay and manipulation 

by the Defendant. The Court finds that the interest of justice does not dictate a substitution of 

counsel ... . 

Given the history of the case, including Jones’s pattern of delay and obstruction, the district judge did not abuse her discretion in denying Jones’s request for appointment of yet another lawyer. 

III. Waiver of the Right to Testify

Moving on to the fraud trial itself, Jones argues that the 

district court deprived him of his right to testify on his own 

behalf. Whether a defendant’s right to testify has been infringed is a mixed question of law and fact that we review de 

novo, though we review the district court’s underlying factual 

findings for clear error. United States v. Stark, 507 F.3d 512, 516 

(7th Cir. 2007). 

A few constitutional rights of the accused are so fundamental that they are deemed personal to the accused, and “he 

alone may decide whether these rights will be exercised or 

waived.” United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir. 

1984). These rights include the decisions whether to plead 

guilty or proceed to trial; whether to be tried by judge or jury; 

whether to appeal an adverse verdict; whether to forgo the 

assistance of counsel; and, as relevant here, whether to testify. 

Id.
14 No. 15-1792 

Jones says that he never clearly and unequivocally waived 

his right to testify. He adds that he “repeatedly affirmed to the 

district court that he wanted to testify” but that attorney Inman “refused to let him testify, preventing him from exercising this constitutionally guaranteed right.” Based on our review of the record, we disagree. The district judge correctly 

found that Jones waived his right to testify. The judge engaged 

in three colloquies with Jones on the subject. While Jones’s responses during the first two colloquies were ambiguous, his 

third response was an unequivocal waiver. 

On the second day of trial, shortly after the government 

rested, the judge asked defense attorney Inman whether he 

planned to present any evidence. Inman said no. The judge 

then asked Jones whether he wished to testify. Jones’s answer 

was ambiguous: he said that Inman would not ask him any of 

the questions that he had prepared, “so it would do no good.” 

Inman said that he was “well within [his] ethical and professional obligations in making this call,” but the district judge 

stated that it was still up to Jones whether he wished to testify. 

Even in a situation where a criminal defense lawyer suspects 

that his client might testify untruthfully, the lawyer cannot 

simply bar his client from testifying on his own behalf.3

The judge next conducted an ex parte colloquy during 

which Jones’s response was again ambiguous: 

 3 The conflict between a criminal defense attorney and an accused 

who the attorney knows intends to testify falsely poses one of the oldest 

and most intractable problems in professional ethics. Indiana Rule of Professional Conduct 3.3, which applies in the Southern District of Indiana, 

addresses the problem. The comment to the rule suggests some solutions, 

including allowing the client to testify in narrative form, but does not provide guidance that is clear in all scenarios. 
No. 15-1792 15

THE COURT: Mr. Inman ... can’t ask you any 

questions that would elicit what he believes 

would be perjurious testimony. 

THE DEFENDANT: I wouldn’t—I wouldn’t expect him to, but I see that he’s not going to do it, 

so I have no choice but to stand down. 

THE COURT: And take your attorney’s advice, 

which is fine, okay? I just need to feel confident 

that— 

INMAN: Your Honor, I think with that, we’re 

prepared to go forward. 

THE COURT: Okay. Okay. 

THE DEFENDANT: But I wasn’t lying, nor 

would I lie. Thank you, Your Honor.

This ambiguous exchange did not resolve the matter. Later 

that afternoon, the district judge inquired again and got another ambiguous answer: 

THE COURT: Now, your lawyer has strongly 

stated that he does not believe it would be to 

your benefit, tactically and strategically, to testify, but you’ve got to tell me that you agree with 

that. 

THE DEFENDANT: But, Your Honor, the issue 

I have is, I can’t testify if I—we haven’t gone 

over any questions. I mean, there’s a lot of things 

that could be— 

THE COURT: Well, you don’t necessarily have 

to go over any questions. Your lawyer ... knows 

what questions to ask. 
16 No. 15-1792 

.... 

THE DEFENDANT: Your Honor, I bow to 

your—I mean, you’re the boss. I respect you and 

I respect your position. 

THE COURT: All right. 

THE DEFENDANT: Thank you, ma’am. 

THE COURT: And I respect your position, also, 

okay? So you’re going to concede to the advice 

of your counsel and not testify. ... 

INMAN: Thank you, Your Honor.

Those first two colloquies were not sufficient to show that 

Jones himself was personally waiving his right to testify. If the 

judge had not tried a third time, Jones’s argument on appeal 

would have considerably greater force. But the judge wisely 

inquired again on the final morning of trial: 

THE COURT: First of all, Mr. Inman ... the 

Court needs to be comfortable that your client is 

comfortable with his waiver of his right to testify. And you’ve talked with him about that? 

INMAN: We have, Your Honor. We’ve talked 

this morning. 

THE COURT: And, Dr. Jones, are you comfortable with your decision? 

THE DEFENDANT: Yes. 

Against the background of the two earlier discussions, Jones’s 

unqualified “yes” answer during the third colloquy was an 

unequivocal waiver of his right to testify. It is helpful to contrast those rare cases in which we have found invalid waivers. 
No. 15-1792 17

For example, in Ward v. Sternes, 334 F.3d 696, 700 (7th Cir. 

2003), the defendant answered the court’s question whether 

he agreed that it was a good decision not to testify by stating: 

“I guess. I don’t know.” That ambiguous response was all the 

less reliable because the defendant suffered from aphasia, a 

condition that manifested in a disconnect between questions 

asked and answers received. Id. at 698. And in Ortega v. 

O’Leary, 843 F.2d 258, 260 (7th Cir. 1988), the defendant twice 

interrupted the proceedings and expressed his desire to testify. The trial judge ordered the defendant to remain silent. On 

further inquiry, defense counsel stated that a “joint decision 

had been made” that the defendant would not testify. Id. The 

defendant protested, but the court treated the evidence as 

closed and allowed the case to proceed to closing arguments. 

This case is readily distinguishable from Ward and Ortega. 

Unlike Ward, there is no evidence in this record tending to 

show that Jones suffered from any physical or mental impairment that might have compromised his waiver. Unlike Ortega, 

the district judge here made clear that the decision whether to 

testify was ultimately up to Jones, and she asked three times 

to ensure that his waiver was knowing and voluntary. And 

unlike both Ward and Ortega, Jones’s answer during the final 

colloquy—a simple “yes”—was clear. See Ward, 334 F.3d at 

707 (“direct, unequivocal answer to a trial court’s colloquy 

will suffice to find a knowing, intelligent waiver”). Given the 

choice, Jones elected not to testify at his fraud trial. Apprised 

of his constitutional right, he waived it. 

IV. Sentencing Guidelines Calculation

Finally, Jones contends that the district court miscalculated the sentencing guideline range for his firearms offenses 

by improperly taking account of his 1985 felony conviction for 
18 No. 15-1792 

a controlled substance offense. We review de novo the district 

court’s legal interpretations of the Sentencing Guidelines, 

though we review its factual findings for clear error. United 

States v. Saunders, 826 F.3d 363, 372 (7th Cir. 2016). 

In applying the Guidelines for Jones’s fraud conviction, 

the district judge computed a base offense level of six with a 

ten-level enhancement for the loss amount and a two-level enhancement for abuse of trust, resulting in an adjusted offense 

level of 18. In applying the Guidelines for Jones’s felon-in-possession convictions, although the base offense level would ordinarily be 14, the district judge used a base offense level of 

20 under U.S.S.G. § 2K2.1(a)(4)(A). That section provides for 

an enhancement where the “defendant committed any part of 

the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance 

offense.” The judge added six levels for the number of firearms involved in the offense and two levels for obstruction of 

justice, resulting in an adjusted offense level of 28. The judge 

used this second adjusted offense level as the combined adjusted offense level for both offense groups. With three criminal history points, Jones was in criminal history category II, 

which resulted in a guideline range of 87 to 108 months in 

prison. The judge ultimately sentenced Jones to 90 months on 

the fraud count and 100 months on each felon-in-possession 

count, all terms to be served concurrently.

Jones argues that the district judge should have disregarded his 1985 conviction. Under U.S.S.G. § 2K2.1 cmt. n.10 

and §§ 4A1.1 and 4A1.2, there is a fifteen-year lookback period for prior felony convictions. See § 4A1.2(e)(1) (“Any prior 

sentence of imprisonment exceeding one year and one month 
No. 15-1792 19

that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any 

prior sentence of imprisonment exceeding one year and one 

month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.”). Because Jones was released from state custody in October 1988, the “instant offense” must have commenced no 

later than October 2003 to bring the prior conviction within its 

scope. Yet the controlling indictment charged that Jones possessed firearms and ammunition between March and June 

2010, over 21 years after he was released from state custody.4

While the indictment charged only conduct occurring in 

2010, the evidence introduced at trial showed that Jones possessed weapons and ammunition much earlier. For instance, 

the government introduced a 1996 prenuptial agreement 

signed by Jones and Larissa Coroban, his then-fiancée. The 

document described Jones’s assets as including fifteen pistols, 

nine shotguns, and fourteen rifles. The government also introduced a document drafted by Jones in 2001 titled “Transfer, 

Receipt, and Agreement of Firearms.” Through this document, Jones purported to transfer to Ms. Coroban certain 

weapons that a friend had been holding on his behalf. Jones 

implied that he had owned these weapons since before his 

1985 conviction; he said that he was advised to “write this up 

 4 Although the parties disagree about exactly which guideline range 

would have applied if the district judge had excluded the 1985 conviction 

from her computation, any range would have been significantly lower 

than the one used. With a base offense level of 14 instead of 20 and criminal history category I—assuming the same enhancements for firearm 

quantity and obstruction of justice—Jones’s guideline range for his firearms offenses would have been 41 to 51 months in prison, less than half 

the range that the district judge used.
20 No. 15-1792 

so no one would make trouble over [his] owning them.” He 

also asked Ms. Coroban not to sell three of the guns until after 

his death, a detail that the district judge later highlighted as 

evidence of possession.

Additional evidence supports an inference that Jones continuously possessed firearms from at least 1996 (and likely 

much earlier) up through and including the charged period. 

For example, the government introduced a “Financial Balance 

Sheet” that Jones apparently drafted in April 2009. It valued 

Jones’s “Gun Collection/Ammo” at that time at $35,000. The 

government also introduced a 2009 e-mail in which Jones told 

his brother about his large gun collection. During the FBI investigation in 2010, agents recovered dozens of weapons and 

thousands of rounds of ammunition from Jones’s residence, 

his treatment lodge, and his cabin in Roundup, Montana. The 

evidence seized at the Montana cabin was especially inculpatory, as Ms. Coroban testified that she had never visited the 

cabin. Two of the guns recovered from the cabin were listed 

on an inventory sheet that investigators also seized: that sheet 

listed appraisal values dating to 1983. A Colt .45 caliber “Gold 

Cup” pistol recovered from Jones’s treatment lodge in Indiana 

matched the description of a gun Jones testified that he carried in the 1970s.

In light of all this evidence, the district judge found an “ongoing series of weapon possession by a prohibited person.” 

She added that Jones’s “possession and acquirement of his 

massive gun collection ... took place over decades.” These 

findings are not clearly erroneous. Jones continuously possessed weapons beginning no later than 1996 and probably 

much earlier. Thus, while the indictment charged unlawful 

possession in 2010, the continuous course of conduct giving 
No. 15-1792 21

rise to the charges began within the fifteen-year period following Jones’s release from state custody. Under the terms of 

U.S.S.G. §§ 2K2.1(a)(4)(A) and 4A1.2(e)(1), the district court 

properly used Jones’s 1985 conviction to enhance his base offense level on the felon-in-possession counts. 

Alternatively, Jones’s possession of firearms outside the indictment window could be characterized as relevant conduct 

for guideline purposes. Application note 8 to § 4A1.2 teaches 

that the “commencement of the instant offense” for purposes 

of calculating the fifteen-year lookback period includes relevant conduct as defined in § 1B1.3. That section in turn defines 

relevant conduct to include acts or omissions that were “part 

of the same course of conduct or common scheme or plan as 

the offense of conviction.” § 1B1.3(a)(2). “Offenses are part of 

the same course of conduct if they are ‘part of a single episode, 

spree, or ongoing series of offenses.’” United States v. Ortiz, 

431 F.3d 1035, 1040 (7th Cir. 2005) (citation omitted). We consider whether there is a “strong relationship between the uncharged conduct and the convicted offense, focusing on 

whether the government has demonstrated a significant ‘similarity, regularity, and temporal proximity [between] the uncharged acts and the offense of conviction.’” United States v. 

Acosta, 85 F.3d 275, 281 (7th Cir. 1996) (alteration in original) 

(citation omitted).

The similarity factor is plainly satisfied in this case. The 

uncharged conduct (possession of firearms by a prohibited 

person) was identical to the charged conduct. Given the district court’s reasonable finding that Jones possessed firearms 

continuously from at least 1996 forward, the regularity and 

proximity factors are satisfied as well. 
22 No. 15-1792 

Jones argues that his prior possession of weapons cannot 

constitute relevant conduct under the Sentencing Guidelines 

because of the bar on double-counting. See U.S.S.G. § 1B1.3 

cmt. background (“Conduct that is not formally charged or is 

not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.”) 

(emphasis added). This argument is a non-starter. Section 

§ 922(g)(1) simply prohibits felons from possessing firearms 

and ammunition, period; duration is not an element of the offense. But at the sentencing stage, it is appropriate for the sentencing judge to consider the length of time over which the 

defendant violated the prohibition. Other things being equal, 

a felon who possesses a weapon for a fleeting moment is less 

culpable than one who possesses many weapons continuously for many years. 

Jones also argues that uncharged conduct must be “separate and/or iterative” to qualify as relevant conduct under 

U.S.S.G. § 1B1.3. In support of his argument, Jones cites several cases addressing episodic or transactional crimes. See 

United States v. Sumner, 325 F.3d 884 (7th Cir. 2003) (drug dealing); United States v. Spry, 190 F.3d 829 (7th Cir. 1999) (drug 

dealing); United States v. Powell, 124 F.3d 655 (5th Cir. 1997) 

(tax evasion). These episodic crimes by their very nature involve separate (if similar) episodes. But 18 U.S.C. § 922(g)(1) 

defines a status-based crime—passive conduct that by its nature is often continuous, not episodic or iterative. Nothing in 

§ 1B1.3 leads us to believe that the Sentencing Commission 

intended to exclude status-based offenses from the relevant 

conduct provisions. On the contrary, by taking into consideration the length of time that a defendant possesses weapons 

in violation of federal law, a sentencing judge furthers the goal 

of the relevant conduct Guideline—i.e., “taking into account 
No. 15-1792 23

all germane uncharged conduct demonstrating the seriousness of the offense conduct.” United States v. Nance, 611 F.3d 

409, 417 (7th Cir. 2010). 

In the end, whether viewed as relevant conduct or simply 

as a part of the offense conduct, Jones’s continuous possession 

of firearms starting in 1996 or earlier brings his 1985 conviction within the fifteen-year lookback period. The district court 

properly used that conviction to increase the base offense 

level for Jones’s felon-in-possession counts. We find no error 

in the resulting guideline computation. 

Jones’s convictions and sentences are AFFIRMED.