Barry Gewin has been a troublesome defendant. In 2006, a jury convicted Gewin of securities fraud, wire fraud, and conspiracy after a trial in which he represented himself. At sentencing, he refused to give the probation department a full accounting of his assets. The court took what assets it knew about -- including those controlled by his wife -- into account and calculated a bill for $651,541.82, to be paid immediately toward a total amount of restitution and fines for $2.4 million. A year later, Gewin had paid only $1,325 of that amount and tried to send the court a fake International Bill of Exchange for $2.5 million. As you might expect, these actions got him extra time added on for contempt in a 2007 order.
Not that the contempt order mattered. By 2012, the District Court continued its order holding him in civil contempt, as Gewin still hadn't paid any more toward his restitution bill. He challenged the order pro se, arguing that he didn't have control over his wife's accounts and apologizing up and down for not complying with the order.
On appeal to the D.C. Circuit, Gewin made a brand-new argument: The District Court violated his Due Process Rights by not offering to provide counsel during the 2012 contempt proceedings.
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The Forfeiture Rule
Generally, failing to raise a claim at trial means that it's forfeited on appeal. The government in this case, U.S. v. Gewin, argued that Gewin never made the right to counsel claim in District Court, preventing him from raising it on appeal. The right to counsel, however, is a hefty constitutional imperative, and one that could very well override the forfeiture rule.
A great question, but apparently, we'll never know: The D.C. Circuit Court punted on this issue. Instead, the court found that Gewin waived his right to counsel. He wasn't a legal novice who didn't know he had such a right. To the contrary, said the court, "Gewin's own actions and statements confirm that Gewin was aware of a general right to counsel and of the court's continuing ability and willingness to appoint counsel for him." And the Federal Public Defender -- who met with Gewin in 2011 -- told Gewin to contact him if Gewin ever changed his mind about representing himself.
All of that, the court said, added up to a waiver.
Maybe It's Not So Cut and Dry After All...
Judge Cornelia Pillard didn't disagree with the court's decision, which also found a prior 2007 contempt determination was barred by forfeiture. But a lack of effective waiver of counsel in the 2007 proceeding concerned her, particularly when it came to an "uncounseled, indigent person" facing civil contempt. Judge Pillard would have had the District Court make absolutely sure that Gewin was intelligently waiving his right to counsel through a formal colloquy, which didn't happen in this case.
Waivers happen all the time in the criminal justice system, never more often than in plea agreements. It's up to judges and counsel -- yes, both sides! -- to ensure that whenever a defendant is waiving a precious constitutional right, he or she is doing so knowingly and intelligently.
- ABA Toolkit for a Right to Counsel in Civil Proceedings (American Bar Association)
- 3 Must-Know Circuit Rules for New D.C. Appellate Attorneys (FindLaw's D.C. Circuit Blog)
- Federal Criminal Appeals: 10 Things You Should Know (FindLaw)
- Defendant Can't Withdraw Guilty Plea After Waiving Appeal (FindLaw's U.S. Seventh Circuit Blog)