from the United States District Court for the District of
Utah (D.C. No. 2:11-CR-00984-RJS-1)
Gregory W. Stevens of Salt Lake City, Utah, for
Backman, Assistant United States Attorney (John W. Huber,
United States Attorney, with him on the brief), District of
Utah, Salt Lake City, Utah, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.
SEYMOUR, Circuit Judge.
convicted Robert Lee Holloway of four counts of wire fraud in
violation of 18 U.S.C. § 1343 and one count of making
and subscribing a false tax return in violation of 26 U.S.C.
§ 7206(1). The district court sentenced Mr. Holloway to
225 months of imprisonment on all five counts. On appeal, Mr.
Holloway contends he was denied his Sixth Amendment right to
counsel of his choice and that the district court allowed
impermissible victim impact testimony, denied him his
constitutional right to confront witnesses, and improperly
enhanced his sentence. We affirm.
charges against Mr. Holloway were the result of a scheme he
created through his company, U.S. Ventures, that defrauded
over 250 investors and caused losses in excess of $15
million. Mr. Holloway began soliciting investors in 2005 by
guaranteeing incredible returns in futures markets due to a
mathematical algorithm he had created. When Mr. Holloway
failed to realize the gains he promised, he started
defrauding his investors by stating that his trading was
profitable even though he lost substantial amounts of money,
using money from new investors to pay other investors, and
fabricating reports to investors stating that his daily
returns were between 0 to 1.15% and that his trading never
resulted in a loss. He also diverted investor funds for his
own personal use.
initial appearance on December 16, 2011, the district court
provided Mr. Holloway with an attorney. Approximately twenty
months later, Mr. Holloway's first attorney withdrew and
another attorney was appointed to represent him. At a hearing
on November 19, 2013, the magistrate judge told Mr. Holloway
that it would be the last time his court-appointed attorney
would be replaced and stressed to him that if he wished to
retain his own attorney, he must do so by the end of 2013 to
avoid interfering with the trial date. On June 23, 2014, the
district court entered a trial order requiring that any
motion to substitute counsel be filed at least 21 days before
trial. On July 2, the court appointed an additional attorney
as co-counsel for Mr. Holloway through trial.
March 2014 and July 2014, Mr. Holloway's appointed
attorney attempted numerous times, without success, to show
that Mr. Holloway was not competent to stand trial. Mr.
Holloway appeared to be opposed to this trial strategy,
stating on June 3 that "I certainly feel no lack of
competency in going to court and telling the real
story." Aplt. Br. at 11. On July 25, six days before
trial, Mr. Holloway's court-appointed attorneys filed a
motion to withdraw and to obtain a continuance, stating that
Mr. Holloway had retained his own attorney. At a hearing to
examine the motion, the district court recognized that
"Mr. Holloway is entitled to counsel of his choice"
and held that his new attorney, who attended the hearing,
could appear and work alongside his current attorneys. Rec.,
vol. 4 at 194. But the court refused to reschedule the trial
date and it denied the appointed attorneys' motion to
withdraw and to continue the trial. After its ruling, the
court took a fifteen minute recess so Mr. Holloway and all
three attorneys could decide how to proceed. After the
recess, one of Mr. Holloway's appointed attorneys stated
"[t]he decision has been made that [Mr. Holloway's
retained attorney] will not be entering her appearance at
this time, " and that "[d]iscussion was had as to
whether Mr. Holloway might wish to make a record on his own
behalf and he has declined to do so." Id. at
trial, the government presented seven witnesses to show that
Mr. Holloway had made false representations to investors.
Over the objection of Mr. Holloway, four of those witnesses
were allowed to testify to the impact Mr. Holloway's
fraudulent scheme had on their lives. Their testimony is
outlined infra in our discussion of this issue. The
government also introduced thousands of pages of trading
records and reports to investors that were designed to show
Mr. Holloway's specific intent to defraud, the only
element of wire fraud that Mr. Holloway denied. Mr. Holloway
was convicted on all five counts, and the district court
subsequently sentenced him to 225 months in prison.
Holloway filed a timely appeal, claiming: (1) the district
court's denial of his motion to substitute counsel
deprived him of his Sixth Amendment right to counsel of
choice; (2) the district court's admission of the
victim-impact statements was an abuse of discretion; (3) the
district court violated the Confrontation Clause by not
allowing him to fully cross-examine two witnesses; and (4)
the district court erroneously included a six-level
enhancement of his sentence based on the claimed number of
victims. We address each issue in turn.
Sixth Amendment Right to Counsel of Choice
Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to . . . have
Assistance of Counsel for his defence." U.S. Const.
amend VI. The Supreme Court has explained that "an
element of this right is the right of a defendant who does
not require appointed counsel to choose who will represent
him." United States v. Gonzalez-Lopez, 548 U.S.
140, 144 (2006). This right "stems from a
defendant's right to decide what kind of defense he
wishes to present." United States v. Collins,
920 F.2d 619, 625 (10th Cir. 1990) (citing United States
v. Nichols, 841 F.2d 1485, 1502 (10th Cir. 1988)). We
have recognized that "'[a]ttorneys are not
fungible;' often 'the most important decision a
defendant makes in shaping his defense is his selection of an
attorney.'" Id. (quoting United States
v. Laura, 607 F.2d 52, 56 (3d Cir. 1979)); accord
United States v. Jones, 160 F.3d 641, 646 (10th Cir.
1998) ("[T]he selection of one attorney over another can
profoundly affect the course and outcome of a trial.").
defendant is wrongly denied his right to counsel of choice,
his deprivation is "complete" at the time of the
denial "regardless of the quality of the representation
he received." Gonzalez-Lopez, 548 U.S. at 148;
see also United States v. McKeighan, 685 F.3d 956,
966 (10th Cir. 2012). Because "erroneous deprivation of
the right to counsel of choice [has] 'consequences that
are necessarily unquantifiable and indeterminate, [the
deprivation] unquestionably qualifies as structural
error.'" Gonzalez-Lopez, 548 U.S. at 150
(quoting Sullivan v. Louisiana, 508 U.S.
275, 282 (1993)). Accordingly, '[i]f a defendant is
wrongly denied his counsel of choice, no showing of prejudice
is necessary to establish constitutional error."
McKeighan, 685 F.3d at 966.
there is a presumption in favor of a defendant's counsel
of choice, the right is not absolute." Id. at
966. The Supreme Court has long recognized "a trial
court's wide latitude in balancing the right to counsel
of choice against the needs of fairness and against the
demands of its calendar." Gonzalez-Lopez, 548
U.S. at 152 (internal citations omitted). As we have
A defendant's choice of counsel may be denied by a
court's refusal to grant a continuance necessary to allow
the chosen attorney to participate in the case. This issue
has arisen when a defendant had not obtained an attorney by
the time of trial, United States v. Kelm, 827 F.2d
1319, 1320-21 (9th Cir. 1987); United States v.
Leavitt, 608 F.2d 1290, 1293-94 (9th Cir. 1979); when a
chosen attorney claimed that he or she had inadequate time to
prepare for trial, Birt, 725 F.2d at 591-92;
United States v. LaMonte, 684 F.2d 672 (10th Cir.
1982); Linton, 656 F.2d at 208; . . . or when a
defendant sought to obtain a new attorney immediately before,
Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.
1984), or during trial United States v. Lowe, 569
F.2d 1113, 1116 (10th Cir. [(1978]).
Nichols, 841 F.2d at 1504. Thus, "[o]nly when
the trial court unreasonably or arbitrarily
interferes with a defendant's right to counsel of
choice do we agree a conviction cannot stand,
'irrespective of whether the defendant has been
prejudiced.'" United States v.
Mendoza-Salgado, 964 F.2d 993, 1016 (10th Cir. 1992)
(quoting Collins, 920 F.2d at 625).
appeal, Mr. Holloway states he "is not claiming that the
District Court unreasonably or arbitrarily interfered with
his right to counsel." Aplt. Br. at 37. In fact, he
concedes the court's actions in denying his motion to
withdraw and to continue trial were appropriate because
"Mr. Holloway missed the deadline set by the Court for
retaining counsel, his delay would have inconvenienced the
government and its witnesses, and Mr. Holloway's
then-existing counsel stated that they were willing and able
to proceed." Id. at 37-38. Thus, as his own
brief admits, the district court did not deprive Mr. Holloway
of his Sixth Amendment right to counsel of
Mr. Holloway's argument is more properly characterized as
a claim of ineffective assistance of counsel. He contends
there was a total breakdown in communication between him and
his appointed counsel, as evidenced by the disagreement about
trial strategy and his competency to stand trial, as well as
the fact that his appointed attorneys were unaware he had
secured a separate attorney. Mr. Holloway asserts that
"[a] complete breakdown in communication between
defendant and his or her counsel thus implicates the
consideration whether counsel is ineffective under
the Sixth Amendment." Id. at 38 (emphasis
added). Every case that Mr. Holloway cites in support of his
argument involved an ineffective assistance of counsel claim.
See, e.g., Romero v. Furlong, 215
F.3d 1107, 1113 (10th Cir. 2000) ("In deciding whether a
complete breakdown in communication rendered Appellant's
representation constitutionally ineffective, we
consider four factors." (emphasis added)); Brown v.
Craven, 424 F.2d 1166, 1170 (9th Cir. 1970) ("[T]o
compel one charged with grievous crime to undergo a trial
with the assistance of an attorney with whom he has become
embroiled in irreconcilable conflict is to deprive him of the
effective assistance of any counsel whatsoever.");
United States v. Soto Hernandez, 849 F.2d 1325, 1328
(10th Cir. 1988) (complete breakdown in communication between
attorney and client may give rise to presumption of
ineffectiveness). Mr. Holloway's argument is thus that he
was denied effective assistance of counsel, not that he was
denied counsel of choice.
the current record does not support Mr. Holloway's
complete breakdown claim,  we do not reach that issue because
"[i]neffective assistance of counsel claims should be
brought in collateral proceedings, not on direct
appeal." United States v. Galloway, 56 F.3d
1239, 1240 (10th Cir. 1995) (en banc). The reason for this
general rule is that "[a] factual record must be
developed in and addressed by the district court in the first
instance for effective review. Even if evidence is not
necessary, at the very least counsel accused of deficient
performance can explain their reasoning and actions, and the
district court can render its opinion on the merits of the
claim." Id. Accordingly, if Mr. Holloway wishes
to establish there was a complete breakdown in communication
between him and his appointed attorneys that rendered their
representation ineffective, he must do so in collateral
Victim Impact Statements
on United States v. Copple, 24 F.3d 535 (3d Cir.
1994), Mr. Holloway contends the district court erred by
allowing the government to present the testimony of several
victims concerning the emotional impact the financial loss
had on their personal lives. He maintains the error was not
harmless because of the importance of the testimony "in
establishing Mr. Holloway's guilt and the emphasis placed
on that . . . testimony during closing [arguments] by the
government." Aplt. Br. at 31. Although we question
whether the district court should have allowed emotionally
charged testimony, our review of the record persuades us any
error was harmless in light of the overwhelming evidence of
Mr. Holloway's specific intent to defraud investors.
trial, a number of victims testified about the impact the
fraud had on their lives. David Story testified that he and
approximately forty of his investors received only 3.1
million of the four million invested with U.S. Ventures, that
he had to sell everything to pay back the second-tier
investors, that he lost relationships as a result, and that
he ultimately filed for bankruptcy. Stanley Miller testified
that he lost the $136, 000 he invested in U.S. Ventures while
unemployed, and that he had cashed out his IRA and sold his
house for the proceeds in order to invest. He further stated
that "it separated our family" and that "we
didn't end up with enough money to be able to afford to
buy another house, and I wasn't getting enough from
Social Security to afford an apartment." Rec., vol. 4 at
868-69. Mr. Miller broke down emotionally during this
testimony. In addition, Timothy Kohl testified he invested
$94, 000 in U.S. Ventures through Winsome ...