# Unit ed Sta tes Cou rt of Appeals
For the Seventh Circui t Chic ago, I lli nois 60604

Submi tte d March 26, 2014 Deci ded March 27, 2014

Before
DIANE P. WOOD, Chief Ju dge

DIANE S. S YKES , Circ uit Judge
DAVID F. HAMILTON, Circ uit Judge

Nos. 12-3832 & 13-2201

UNITED STATES OF AMERI CA, Plaintiff-Appellee,

v.
CHRIS TOPHER H. CANNON, Defen dant-Appellant

. Appeals from the Uni ted S tate s Di stric t Court for t he Nort hern Di stric t of Indiana, Hammond D i vis i on.
Nos. 2:11cr16-001 & 2:12cr14-001 Joseph S. Van Bokkelen, Judge

. O R D E R

Chris topher Cannon, a self- professed “Publi c Mi ni ster o f the Moo ris h Sci ence Temple of Ameri ca,” us ed fake $50 bi lls to buy three telev i si ons from Sear s. After a j ury tr i al in Dec ember 2011, duri ng whi ch Cann on was removed fro m the courtr oom for di srupti ve behavior, he was found gui lty o f pass i ng counterfeit money. See 18 U.S.C. § 472. The di stric t j udge sentenced hi m to 30 months’ im pris onment, but before t hat, i n January 2012, Cannon was charged in a s econd indi ctment wi th two counts of mai l fraud aris i ng from false insu rance clai ms h e sub mi tte d after hishouse bu rned down. See id. § 1341. That cas e also went to t rial, an d Cannon agai n was remov ed from the NON PRECEDENTIAL DISPOSITION To be ci ted only i n acc or dance w i th Fed. R. App. P. 32.1Nos. 12-3832 & 13-2201 Page 2

courtr oom for di srupti ve behavior. The jur y found hi m gui lty o n one count, and he was sentenced to 30 months’ i mpri sonment, to be serv ed consec uti vely to t he 30 months i mposed for the counter fei tin g convicti on.
Cannon fi led a notic e of appeal from each judgment, and we have consoli dated the two appeals for decis i on. Cannon i s representing hi mself i n hi s appeal fro m the counterfeiting convic tion and h as fi led a bri ef on the merits. Appoin ted counsel * repr esents hi m in hi s appeal fro m the convic tion for mai l fraud, bu t the lawyer has moved t o wi thdraw on the g ro und that all potential appellate clai ms are fri vo lous. See Anders v. Calif

ornia , 386 U.S. 738, 744 (1967). Cannon opposes couns el’s Anders sub mi ssi on. See C I R

. R. 51(b).

We start wi th Cannon’s appeal from hi s coun ter fei tin g convicti on. He devo tes most of hi s bri ef to his professed status as a “Pub li c Mi ni ster” r epresenting the “Moo ris h Nati onal Gover nment.” Cannon says that hi s true name i s “Chri stopher HCannon:Bey” and declares that he i s “a li ving, breathi ng full- li abi li ty man.” Hi s status as a “publi c mini ster,” says Cannon, means that the di stric t court lacked jurisd i cti on ov er hi m, vi olated his “rights and i mmu ni ties ” under Illi noi s lawand the federal Constituti on, and “tre spas s[ed] on the Religi ous Trust and Es tate of the Mo or i sh Sci ence Temple Of Ameri ca.” We wi ll not in dulge arg uments li ke t hese; they are fri vo lous, and the di stric t court acted proper ly by summ arily rej ecti ng them. See Un ited States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011).

Cannon does chall enge the appo i ntment of counsel to repr esent hi m at tr i al, but that challenge has no meri t. Cannon had the right to repr esent hi mself , but that r i ght could not be exer ci sed wi thout k nowingly and i ntelli gently wai ving the right to
couns el. See F arettav. California , 422 U.S. 806, 835 (1975); Smith v. Grams , 565 F.3d 1037, 1044 (7th Ci r. 2009). Cannon di d hi s bes t to avo i d making a choi ce. He sai d repeat edly that he did n ot want any help fro m hi s appointed lawyer, y et he also in si sted that he
was u nwi lling to repr esent hi mself . At a stat us h earing a fewweeks before tr i al, the di stric t j udge had understood Cannon to be asking that his appoi nted lawyer be di sch arg ed and that he be allowed to r epresent him self. Wh en the judge acceded b ut appoi nted the same lawyer as standby couns el, Cannon responded,“Well, I stil l mus t object because I’m not r epresenting myself here t oday.” That comment pro mpted the

After exami ning the briefsand record in that appeal, no. 12-3832, we have * conclu ded that o ral ar gument i s unnecess ary . Thus, that appeal is sub mi tte d on the bri efs and recor d. See F E D

. R. A P P

. P. 34(a)( 2)(C).Nos. 12-3832 & 13-2201 Page 3

judge t o r econsi der, and when Cannon next appeared befor e hi m a fewweeks later, t he judge o nce more asked i f he wan ted to repr esent hi mself . Cannon replied, “I do not wi sh to contr act wi th yo ur corpo rat i on at all,” and the j udge, seekin g clarifi cati on, asked, “That means you don’t want to r epresent y ourself, corr ect?” Cannon ans wered: “I do not wi sh to contr act wi th yo ur corpo rat i on. I g i ve y ou a better answ er. I do not consent wai ver of benefi t.” When the j udge pro bed fu rt her, Cannon continu ed, “Well, what I prefer to do here, si r, is formally r equest and deman d my di plomatici mmu ni ty under my tr eaty and enforce my tr eaty here t oday with the Uni ted S tate s and as k—and formally r equest and deman d that t he Uni ted S tate s honor and request my t reat y.” That
was en ough for the j udge, who reappointed Cannon’s lawyer . Cannon may have hoped that, by r ejecting appoi nted counsel andrefusing to repr esent hi mself , he could f or ce the judge t o dwell on fri vo lous theories ab out im muni ty and j uri sdi cti on. But the j udge rightly declined to t ake t he bai t, see Benabe, 654 F.3d at 767, and it was not er ro r t o fi nd that Cannon nev er k nowingly and i ntelli gently wai ved his right to counsel.

Cannon’s belli ger ent behavior also foi ls hi s cl ai m that it was err or to r emove him from the court ro om during tr i al. Ever y defendant has a ri ght t o be present attr i al,
see F E D

. R. C RI M

. P. 43(a) ; Illinois v. Alle n , 397 U.S. 337, 338 (1970); Benabe, 654 F.3d at 768, but that r i ght can be wai ved, ex pli ci tly o r im pli ci tly t hrough mis conduc t, see F E D

. R. C RI M

. P. 43(c )(1) (C); Allen , 397 U.S. at 342–43; Benabe, 654 F.3d at 768. Thro ughout the pret rial proceedings Cannon had voic ed hi s fri vo lous legal theor i es in countless statements made in open court. He o ften refused to answer the di stric t court ’s questi ons, treat ing those inqu i ries as invitati ons to lo dge an obj ecti on or pose hi s own questi on to the court, and he had n o qualms ab out interrupting the court o r counsel duri ng the pr oceedi ngs. Becau se of thi s hi stor y, Cannon’s own lawyer pro posed i mmedi ately befor e jur y selecti on that he be ex clud ed from the court ro om duri ng tr i al. Cannon responded wi th more of the same fri vo lous objections and statements. The di stric t j udge tr i ed reasonin g wi th hi m and as ked multi ple tim es i f he would allow hi s lawyer t o r epresent himwi thout interr upti on. Cannon would not answer and c ontinu ed hi s sp i el, even after the j udge twi ce warned that further i nterr upti ons would lead to exclusi on from t he courtr oom. Cannon’s di srupti ve behavior j usti fi ed remov i ng hi m, and that mi scondu ct di d not abate when, at each break in the trial, the judge had Cannon ret urned to t he courtr oom t o see i f he was wi lling to contro l hi mself

. Lastly, Cannon arg ues that the go ver nment engaged in vindi cti ve pr osecuti on. Thi s contenti on i s fri vo lous. Th e go ver nment cann ot pr osecute i n retaliati on for
exer ci sing pro tected stat utor y or consti tutional ri ghts, but challen gin g the pr osecutor’ s motivation requi res clear ev i dence of vi ndi cti veness. See Un ited States v. Armstrong , 517Nos. 12-3832 & 13-2201 Page 4

U.S. 456, 464 (1996); United S tat es v. Jarrett , 447 F.3d 520, 524–25 (7th Cir. 2006); United States v. Coo per, 461 F.3d 850, 856 (7th Cir. 2006). Cann on accu ses the prosecutor o f maki ng the case “a personal matter ... all becau se Cannon:Bey [was ] standing up for hi s consti tutional s ecured rights, hi s god given rights and h i s ri ghts under hi s treat y.” But Cannon prov i ded no evidenc e that his prosecuti on for counter fei tin g was anythi ng more t han the predic table response to pass i ng phony curre ncy.
We turn now to the Anders motion fi led by appoi nted counsel in Cannon’s appeal from hi s convi cti on for mail fraud. Our r eview i s li mi ted to the pot entiali ssu es i denti fi ed i n couns el’s fac i ally adequate brief an d in Cannon’s opposi tion. See Un ited States v. Schuh , 289 F.3d 968, 973–74 (7th Cir. 2002). Three of the po tential arguments di scu ssed b y the lawyer and Cannon warrant only brief m ention. Fi rst, as already di scu ssed, any appellate clai m premi sed on Cannon’s status as a “publi c mini ster” would be fri vo lous. Second, i t would be fri vo lous to challenge the appo i ntment of counsel, f or Cannon againtoo k the po si tion of both rej ecti ng appoin ted counsel andrefusing to repr esent hi mself , despi te the di stric t court ’s patien t effort s at di scerning Cannon’s wi shes one way or the ot her. Thi rd, it would b e fri vo lous to challenge Cannon’s remov al from the court ro om duri ng tr i al; he engaged in the same mi sbehavi or that led t o hi s removal fr om hi s coun ter fei tin g tr i al, and he told the j udge that he could not pr omi se to r efrainfrom in ter rupting the proceedin gs.
Counsel cons i ders whether Cannon could argue that the g ov ernment’s evidenc e i s insu ffi ci ent to sus tainthe j ury’s v erdic t but pro perly concludes that thi s argument would be frivolous. We would vi ew the evidenc e i n the li ght most fav or able to the gov ernment and uphold the convic tion i f any rational jury could have found the essenti al elements of mai l fraud beyond a reasonable doubt. See Jackso n v. Vir ginia , 443 U.S. 307, 319 (1979); United S tat es v. McMillan , No. 12-1348, 2014 WL 945212, at *4 (7th Ci r. M ar. 12, 2014). To obtain a c onvicti on for mail fraud, the go ver nment had to show that Cannon par tic i pated ina fraudulent scheme, intended to defr aud, and u sed the Postal Ser vic e or an interstat e carrier to further t he scheme. See 18 U.S.C. § 1341; United States v. Fernandez , 282 F.3d 500, 507 (7th Cir. 2002). The gov ernment pre sented evidenc e that, after hi s home bu rned, Cannon received i n the mai l a chec k fro m hi s insu rance company to satis fy hi s cl ai m for the cost o f alternative housing. Cannon had sub stanti ated thatclai m wi th a copy o f a lease, b ut at t rial the owner of the house testifi ed that she had never met or leased proper ty t o Cannon, and her adult daughter admi tte d that she had helped Cann on draft t he fake lease and forged her mother ’s name. Cannon’s app oin ted lawyer at tr i al argued t hat the fraud was i mmaterial b ecaus eNos. 12-3832 & 13-2201 Page 5

he would have been enti tled to li ving expenses in any event, but appellate couns el rightly di smi sses that defense as fri vo lous. In a prosecuti on for mail fraud, the gov ernment is not r equi red t o establi sh that the defendant’s scheme was di rected at obtaining money o r pr oper ty t hat he would not have been entitled to t hrough leg al
means. See Un ited States v. Richman , 944 F.2d 323, 330–31 (7th Cir. 1991); United S tat es v. Gole, 158 F.3d 166, 168 (2d Ci r. 1998). There was plenty of evidenc e for t he jury to find Cannon gui lty.

Both counsel and Cann on consi der ar gui ng that t he gov ernment engag ed i n vind i cti ve pr osecuti on, a challenge that would be reviewed for plain err or becau se i t was n ot r ai sed in the di stric t court

. See Un ited States v. Algee, 309 F.3d 1011, 1014 (7th Ci r. 2002); see also Puckett v. United States , 556 U.S. 129, 135 (2009). We agr ee wi th
couns el that t hi s ch allenge would be fri vo lous. Counsel fi rst points out that Cannon was i ndi cted for mailfraud a li ttle mo re t han a month after he was foun d gui lty o f counterfeiting, but there i s nothi ng part i cularly sus pi ci ous about that t i ming. Thi s i s not a case in whi ch the prosecutor br ought additi onal charges i nvolv i ng the same conduc t after t he defendant su cces sfu lly challenged a convi cti on, see Blackledge v. Perry, 417 U.S. 21, 28–29 (1974), or inwhi ch the defendan t r ecei ved a long er sentence after a second tr i al on the same charges, see North Carolina v. Pearce, 395 U.S. 711, 723–25 (1969). And nei ther counsel nor Cannon identi fi es any evidenc e to suggest that t he prosecutor broughtcharges of mai l fraud vi ndi cti vely

. Second, counsel points out thatthe pro secu tor recommended a 20-year sentence, even t hough the calcul ated guidelines range for the mai l-fraud c onvicti on was 18 to 24 months. Calling this di spari ty “t ro ubling,” counsel n ever theless c oncludes that r esti ng a vind i cti veness clai m on that dis parity would be frivolous becau se we w ould rev i ew only for plain err or . We agr ee wi th counsel’s ulti mate conclus i on; eve n an obvi ous erro r wi ll not lead to rev ersal on plai n-erro r r eview u nless that er ro r affected the appellant’s sub stanti al rights, see Puc kett , 556 U.S. 129, 135 (2009), and Cannon’s s ubs tantial ri ghts were notaffec ted becaus e the dis tr i ct judge r ejecte d the pro secu tor ’s recommendati on and, as w e wi ll see, i mposed a substanti vely reasonable sentence.
What’s more, we would not ev en find erro r because the recommended s entence could w ell have been justifi ed. The prosecutor ar gued that t he di stric t j udge should
exer ci se hi s di screti on under 18 U.S .C. § 3553(a) to im pose the statuto ry maxi mum sentence. Acc or ding to the pro secu tor , a 20-year sentence i s justi fi ed by evidenc e sub mi tte d at the sentenci ng hearing that Cannon had commi tte d other uncharged cri mes, inclu ding att empting to commi t mor e insu rance fraud after a fi re in an otherNos. 12-3832 & 13-2201 Page 6

resi dence he owned, d efraudi ng the foo d stamp progr am of $600,000, and un lawfu lly possess i ng si x guns, i nclu di ng a semi -automaticrifle wi th an obli ter ated serial nu mber. Cannon’s cri minal hi stor y in clud es a bu rg lary conv i cti on and a seri ous drug felony convic tion, s o the g un poss essi on by itself could have led to a g ui deli nes range as hi gh as 168 to 210 months. See U.S.S .G. § 2K2.1(a). Gi ven the ev i dence of un charged conduct, and a cri minal hi stor y categ or y that the j udge deemed “understated,” the pr osecutor’ s recommendati on does not sugg est vindi cti veness.
Nor do es the judge’ s di scomf or t wi th i mposing the stat utor y maxim um b ased on
uncharged conduct make the r ecommendati on vindi cti ve. Judges are per mi tte d to make findings about uncharged conduct so long as those det ermin ations do noti ncrease the statuto ry penalti es. See 18 U.S.C. § 3553(a); Alleyne v. U nited States , 133 S. Ct . 2151, 2158 (2013); Apprendi v. Ne w Jersey, 530 U.S. 466, 490 (2000). Indeed, calcu latin g the g ui deli nes range o ften requires judi ci al findings about relev ant conduct. See U.S.S .G. § 1B1.3. Th e prosecutor mi ght hav e arg ued that the uncharged in surance fraud was relevant conduc t, see Un ited States v. Frith , 461 F.3d 914, 917–18 (7th Cir. 2006); United S tat es v. Ojomo , 332 F.3d 485, 490 (7th Cir. 2003), and even Cannon’s unlawf ul poss essi on of fi rear ms, h ad that conduct been prov en to t he judge’s satis facti on, would have been a permi ssi ble bas i s for i mposing a pris on sentence above the g ui delines range, see 18 U.S.C. § 3661 (“No limi tation shallbe placed on the information conc ernin g the backgro und, character , and condu ct of a person convicted of an offens e whi ch a c ourt of the United Stat es may recei ve and consi der for the purpose of im posi ng an appropr i ate sentence.”); United S tat es v. Jordan , 435 F.3d 693, 697 (7th Cir. 2006) ( finding above

gui deli nes s entence for stalking and havi ng sex wi th a mi nor j usti fi ed, in part, because of defendant’s gun poss essi on). The judge deci ded that t he uncharged crimes, i f us ed to enhanc e Cannon’s sentence, w ould amount to a “t ai l whi ch w ags the dog of the sub stanti ve o ffens e.” See McMillan v. Pen nsylvani a , 477 U.S. 79, 88 (1986). But that deci si on was an exerci se of the judge’ s sen tenci ng di screti on, not a conclusi on that t he prosecutor ’s propo sal w as not gr ounded in fac t and law.

Counsel next consi ders whether Cannon could argue t hat the dis tr i ct judge er red by sentencing hi m in abs entia. As wi th tr i al, defendants h ave a r i ght t o be present at sentencing, see F E D

. R. C RI M

. P. 43(a) , but that r i ght can be wai ved by v oluntary absenc e, see F E D

. R. C RI M

. P. 43(c )(1) (B); United S tat es v. Achbani, 507 F.3d 598, 601–02 (7th Cir. 2007); United S tat es v. Reyes-S anchez , 509 F.3d 837, 839 (7th Cir. 2007). Cann on refused to come to court on the day t hat hi s sen tenci ng or i gin ally was s chedu led, so the judge postponed the pr oceedi ng for mo re t han a month and di rected t hat Cannon be served a notic e i nformi ng hi m about the rescheduled date and hi s ri ght t o be present.Nos. 12-3832 & 13-2201 Page 7

A counselor at t he Metr opolitan Corr ecti onal Center read t he order to C annon and gave hi m a copy. When Cannon sti ll refused to att end the hearing, the judge found that Cannon had wai ved his right to be pr esent under Rule 43. We agr ee wi th counsel that challen gin g that finding would be fri vo lous. See Achbani, 507 F.3d at 601.

Fin ally, counsel evaluates Cannon’s s entence, consi dering fi rst whether C annon could argue that his sentence w as i mposed in violati on of law or was sub stanti vely unreasonable. Counsel h as i denti fi ed no pro blems wi th the g ui deli nes c alcul ation of 18 to 24 mo nths’ i mpri sonment or any clearly er ro neous fac ts relied on by the di stric t judge. A nd before i mposing a pris on ter m that is si x months longer than the calcu lated range, t he judge consi dered t he factors under § 3553(a)—inclu di ng Cannon’s “consi stent hi stor y of dis reg ard for the law” and “un derstat ed” cri minal hi stor y catego ry
. See 18 U.S.C. § 3553(a)(1), (2) . We agr ee that any challen ge along these li nes would be frivolous.
Second, counsel c onsi ders challenging the dis tr i ct court’s or der o f restituti on on the gr ound that the j ury did n ot det ermin e the amount of loss. A jur y must find fac ts that inc rease the stat utor y puni shm ent defendants fac e, see Alleyn e, 133 S. Ct . at 2158; Apprendi, 530 U.S. at 490, and “pun i shm ent” in clud es a cri minal fine, see Southern Union Co. v. United S tat es , 132 S. Ct . 2344 (2012). Bu t we have held that r esti tution i s a ci vil remedy and does not require a jury to find the amount of loss. See, e.g., U nited States v. Wolfe, 701 F.3d 1206, 1216–18 (7th Cir. 2012); United S tat es v. Bonner, 522 F.3d 804, 807 (7th Ci r. 2008). We thus agree wi th counsel that, in viewof exis tin g ci rcui t pre cedent, a challen ge t o the r esti tution order would be frivolous. We acknowledge, however , that the ci rcui ts are divi ded ove r whether r esti tution i s a ci vil or crim inal penalty, see Wolfe, 701 F.3d at 1217 (not i ng ci rcui t spli t), and Cannon may peti tion the Supreme Cour t for a wri t of cert i or ari i f he so desi res. See Aus tin v. Un ited States , 513 U.S. 5, 5–6 (1994). The judgment i n appeal no. 12-3832 i s AFFIRMED . Counsel’s m otion to wi thdraw i n appeal no. 13-2201 i s GRANTED , and that appeal i s DISMISSED

.