United States v. Jones, 2023 U.S. App. LEXIS 3317 (6th Cir. Feb. 9, 2023) (unpublished):
*1 Following a trial by jury, Defendant Elmer Jones appeals his conviction on four counts of possession with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) (methamphetamine), (b)(1)(B)(i) & (vi) (heroin/fentanyl mixture); (b)(1)(C) (LSD), and (b)(1)(D) (marijuana), as well as one count of possessing a firearm in furtherance of those offenses, 18 U.S.C. § 924(c)(1)(A)(i)). Jones argues on appeal that the district court violated his rights to a speedy trial, to counsel, and to cross-examine a witness adequately. In addition to alleging various other due process violations, he argues that the district court’s within-guidelines sentence was substantively unreasonable. The Court AFFIRMS for the reasons set forth below.
On February 4, 2020, police officers found Jones asleep at the wheel of a car in the middle of an intersection with the engine running and with his foot on the brake. The officers searched Jones’ car and discovered methamphetamine, marijuana, heroin, fentanyl, cocaine, and LSD, as well as a firearm and ammunition. Law enforcement officers arrested Jones on February 12, 2020. Three weeks later, on March 4, 2020, a grand jury indicted Jones on four counts of possession with intent to distribute and one count of possession of a firearm in connection with the drug offenses. The following procedural history is relevant to Jones’ appeal.
Jones had multiple attorneys represent him throughout his criminal proceedings. By March 2020, Jones had retained attorney Matthew Pappas, whom the district court admitted pro hac vice. Over the next two months, Pappas proved that he was not adequately up to the task of representing Jones. Pappas failed to meet deadlines and failed to communicate with Jones, leading the district court to observe that “[b]y all appearances, Attorney Pappas has spent the 90 days since his last contact with his client doing nothing in this matter beyond filing a cursory motion for bond ....” Order to Show Cause, R. 25, Page ID #72–74. Based upon Pappas’ negligent representation of Jones, the district court ordered Pappas to show cause why it should not revoke Pappas’ pro hac vice status. Pappas responded that he “believe[d] it would be better for Mr. Jones to have different counsel in this case .... So, I voluntarily relinquish pro hac vice status.” Resp. to Order to Show Cause, R. 28, Page ID #85–86. Four days later, Pappas filed a supplemental response in which he reiterated that he was unable to represent Jones “properly.” Suppl. Resp. to Order to Show Cause, R. 30, Page ID #89.
Subsequently, the district court conducted a hearing on its order to show cause. Pappas failed to appear, and Jones informed the court that Pappas had not communicated with Jones “[s]ince the last court hearing ....” Hr’g Tr., R. 140, Page ID #2803. With that knowledge, the court informed Jones that it did “not believe that [Pappas will] be able to continue to represent [Jones] in this matter.” Id. at Page ID #2803–04. The court then asked Jones whether he wished to have the court appoint new counsel. Jones responded that although he would “rather [not have] new counsel until this process is completed,” he “guess[ed that he had] no other option.” Id. at Page ID #2804–05. When asked whether he could afford new counsel, Jones responded, “I don’t have nothing else.” Id. at Page ID #2805.
*2 The next day, the district court removed Pappas as Jones’ attorney. The court observed that it had “made every effort to allow Mr. Jones to retain his counsel of choice,” but that Pappas “has shown no willingness to act as counsel for Mr. Jones.” Order, R. 32, Page ID #95. Accordingly, the court concluded that “allowing Attorney Pappas to continue as counsel would present a grave threat to Mr. Jones’ right to effective representation.” Id. at Page ID #96.
The court appointed Attorney Damian Billak to represent Jones. Approximately ten weeks later, Jones sent the district court a letter complaining about the quality and quantity of his communication with Billak. Jones asked the court to hold Billak “to the same standard” to which it held Pappas. Letter, R. 40, Page ID #129. Later that month, the court conducted a status conference during which Jones reiterated his complaints. Following that hearing, Billak moved to withdraw as Jones’ counsel, citing a “breakdown in the attorney-client relationship.” Mot. to Withdraw as Counsel, R. 43, Page ID #133. Two weeks later, the district court denied Billak’s motion. Billak moved again to withdraw as counsel two weeks later. Through that motion, Billak averred that “a complete breakdown in the attorney-client relationship has occurred making it impossible for counsel to continue representing” Jones. Mot. to Withdraw as Counsel, R. 54, Page ID #208.
In late October 2020, around the time that Billak filed his second motion to withdraw, the district court issued an order stating that it was “in receipt of an e-mail ... from John Pappas.”1 Order, R. 55, Page ID #210. Through that e-mail, John2 offered to “assist” Billak in Jones’ defense. E-mail, R. 55-1, Page ID #211. In fact, John went so far as to attach to his e-mail a draft speedy trial motion. John also accused Billak of lacking “courtesy” and “professionalism,” and of “whin[ing] to” the court. Id. at Page ID #214.
That same day, the court held a pretrial hearing. During that hearing, the court addressed Billak’s motions to withdraw, as well as John’s e-mail and proposed motion. Billak expressed to the court his concern that John was acting as shadow counsel. Billak insisted, moreover, that John was “undermining [Billak’s] ability to completely represent” Jones. Pretrial Hr’g Tr., R. 131, Page ID #2047. The court alerted Jones that John was not admitted to practice before the court, and that John’s communication with Jones was “totally improper.” Id. at Page ID #2048. The court also advised Jones that, based upon the quality of John’s draft speedy trial motion, John “clearly does not understand the law ....” Id. at Page ID #2049. At the same time, however, the court told Jones that he was free to continue relying upon John’s advice. Indeed, the court noted that it was unable to stop Jones from speaking to John.
The court denied Billak’s second motion to withdraw. It then called John in the presence of the parties. John represented to the court that he was a pilot, and that he was Matthew Pappas’ father. The court advised John that he was interfering with Jones’ right to an effective attorney. Responding, John insisted that he had “every right in the world to communicate with” Jones, and that he could “advise” Jones as he saw fit. Id. at Page ID #2057. The court reiterated that it could not “stop [John] from communicating with [Jones] and giving him advice.” Id. It added, however, that it could stop John from sending Jones draft pleadings and interfering with Billak’s representation of Jones. Id. at Page ID #2062–63. The court continued:
*3 I’m making this call simply as a courtesy. Rather than issue some sort of order seeking other action by this Court ... or perhaps even by our chief judge based upon your conduct, this is a courtesy call, in essence encouraging you to cease and desist from interfering with this case, this defendant’s rights.
Id. at Page ID #2063. The court then emphasized that it had other, harsher options:
The other option for me would be to issue a show cause order as to why you should not be held in contempt for either attempting to practice law or engaging in some other conduct.
Id. at Page ID #2067.
The court’s analysis of the situation changed, however, when John alerted the court that he had previously been a practicing lawyer. At that point, the court told John:
if you wish to represent the defendant, you are not licensed to practice in Ohio .... In order to participate in this case—if you want to represent the defendant, then you can file a pro hac vice .... You can’t have it both ways. You cannot be sitting on the sidelines giving the defendant legal advice. When you submit draft motions to the defendant, there is no other way to characterize it, in my humble opinion, than practicing law or attempting to practice law.
Id. at Page ID #2070–71. Beyond warning John that he might be engaging in the unauthorized practice of law, the court also informed John that his draft motion was “patently not well-taken” and that he was leading Jones down a “primrose path.” Id. at Page ID #2072. Shortly after the court issued those warnings, John admitted that he “was either disbarred or [ ] resigned” from the California State Bar.3 Id. at Page ID #2074–75.
The court then spoke to Jones directly, warning him against relying on “a lawyer who has been either disbarred or resigned from the California Bar who couldn’t practice in this Court if he wanted to.” Id. at Page ID #2075. After issuing that warning, the court told John that it “strongly encourage[d him] to stop interfering in Mr. Jones’s representation” and that he was “not licensed” and “not permitted to practice law.” Id. at Page ID #2075–76 (emphasis added). The court recommended that John speak with an attorney regarding his actions and his potential legal liability.
After the court ended the telephone call with John, it spoke to Jones once more. The court noted that while it could not stop Jones from listening to John, it could emphasize that John had been disbarred from or disciplined by the California Bar and that John might have ulterior motives. Accordingly, the court recommended that Jones “sit down” with Billak and discuss his options.
That same day, the court issued an order addressing the substance of John’s draft speedy trial motion. The court noted that “[w]hile the correspondence from John Pappas is not a properly filed motion for this Court to consider, the Court feels compelled to address its substance in the hopes of demonstrating to Jones the dangers presented when he chooses to rely on advice from a functionally-disbarred attorney.” Order, R. 56, Page ID #221. The court rebuked the arguments put forward in John’s draft motion and concluded that:
to the extent that Jones seeks to adopt as his own the proposed motion to dismiss provided by John Pappas, the motion is DENIED. The Court is hopeful that its prompt analysis of this issue will highlight to Jones that his interests would best be served by relying upon counsel that are properly admitted to practice before this Court and who are actively attempting to assist him in his defense. While the Court cannot and will not play any role in restricting Jones’ contact with others, the Court’s analysis herein should highlight the significant deficiencies in the advice that Jones’ has been receiving from these third parties.
*4 Id. at Page ID #226.
*6 On appeal, Jones argues that the district court violated his rights to a speedy trial, to cross-examine a witness adequately, and to counsel. He also avers that the district court failed to deal adequately with John Pappas, and that its within-guidelines sentence was substantively unreasonable. The Court addresses each issue in turn.
Before addressing the standard of review, the Court must determine whether Jones preserved the issue for review. To preserve an issue for appellate review, a litigant must “state the issue with sufficient clarity to give the court and opposing parties notice that it is asserting the issue” and provide “some minimal level of argumentation in support of it” before the district court. United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009). The litigant must also present the issue in its appellate briefing. See Puckett v. Lexington-Fayette Urb. Cnty. Gov’t, 833 F.3d 590, 610–11 (6th Cir. 2016). While Jones does address this issue in his appellate brief, he never complained or otherwise objected to the district court’s decisions regarding John. Therefore, Jones failed to preserve whether the district court properly handled John Pappas’ actions for appellate review. Jones’ failure to preserve the issue does not render it unappealable, but it does affect the standard of review. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008).
“Traditionally, decisions on questions of law are reviewable de novo, decisions on questions of fact are reviewable for clear error, and decisions on matters of discretion are reviewable for abuse of discretion.” Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014) (quotation omitted). When and how a court uses its inherent powers is typically seen as discretionary, and is therefore reviewed for abuse of discretion. See Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980) (“Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion”); Kloock v. Runyon, 22 F. App’x 367, 368 (6th Cir. 2001) (reviewing docketing decision for abuse of discretion); Am. C.L. Union of Kentucky v. McCreary Cnty., Ky., 607 F.3d 439, 451 (6th Cir. 2010) (same). Accordingly, the Court reviews the district court’s decisions regarding John for abuse of discretion.6
*10 Federal courts possess “implied powers ... which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quotation and citation omitted). Those “powers are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. (quotation omitted). Among those powers is “the power to control admission to its bar and to discipline attorneys who appear before it.” Id. (citing Ex parte Burr, 22 U.S. 529, 531 (1824)). “Because of their very potency, inherent powers must be exercised with restraint and discretion.” Id. at 44 (citation omitted).
The Supreme Court has observed that “[t]he power of a court over members of its bar is at least as great as its authority over litigants.” Roadway Exp., 447 U.S. at 766. The Seventh Circuit has built upon that principle, holding that “a federal court’s power to regulate and discipline attorneys appearing before it extends to conduct by nonlawyers amounting to practicing law without a license.” United States v. Johnson, 327 F.3d 554, 560 (7th Cir. 2003). Importantly, the Seventh Circuit found that a district court’s exercise of its inherent powers to stop the unauthorized practice of law can be “an appropriate remedial measure,” id. (emphasis added), as opposed to a mandatory one. At least one other United States district court has adopted the Seventh Circuit’s reasoning as articulated in Johnson. See In re Nat’l Legal Pro. Assocs., No. 1:-08-mc-101, 2010 WL 624045, at *4 (N.D.N.Y. Feb. 18, 2010) (the district court’s inherent “power extends to enjoining and sanctioning the unauthorized practice of law.”). Although this Court has not addressed this issue directly, we find the Seventh Circuit’s precedent to be persuasive. Cf. Berger v. Cuyahoga Cnty. Bar Ass’n, 983 F.2d 718, 724 (6th Cir. 1993) (“Federal courts have inherent authority to discipline attorneys practicing before them and to set standards for their conduct.”). A district court may exercise its inherent powers to stop the unauthorized practice of law.
Jones contends that the district court was required to enjoin John from practicing law without a license. Jones cites no authority to support that proposition. Indeed, Jones notes that district courts have “considerable latitude and discretion ... to override a defendant’s wish to consult with a particular person and to preclude that person from involvement in the case ....” Pet’r’s Br. at 35 (quotation omitted) (emphasis added). The issue is therefore whether the district court abused its discretion by not enjoining John from engaging in the unauthorized practice of law.
As mentioned above, the district court: (1) warned John that it would intervene to prevent John from offering Jones legal advice; (2) suggested that John consult with an attorney to determine his own legal liability; and (3) warned Jones that John was giving him poor advice. In other words, the district court acted explicitly and deliberately to prevent John from engaging in the unauthorized practice of law. Such actions do not constitute an abuse of discretion. To hold otherwise would constitute unnecessary second-guessing of a district court’s discretionary management of its own cases.
For the reasons set forth above, this Court AFFIRMS the judgment of the district court.
|As the district court subsequently learned, John Pappas is Matthew Pappas’ father.
|The Court refers to John Pappas by his first name to differentiate John from his son. In doing so, the Court intends no disrespect to John.
|Later, the Court learned that John “resigned his law license while facing discipline charges that could have led to him being disbarred.” Order, R. 56, Page ID #220.
|As a threshold matter, Jones does not dispute that the district court satisfied the requirement that it “set forth its reasons for granting an ends of justice continuance on the record ... in writing.” Cianciola, 920 F.2d at 1299 (quotation omitted).
|Jones suggests that the Form 302 was not authenticated in accordance with the Federal Rules of Evidence. (Pet’r’s Br., ECF No. 39, 40–41). That argument is not well taken, since Jones never challenged the form’s authenticity at trial, nor does he challenge it explicitly on appeal.
|Both parties aver that whether a district court properly exercised its inherent powers is a question of law that is subject to de novo review. Those averments are unavailing, as they rely on authority from outside this Circuit. See United States v. Johnson, 327 F.3d 554, 559–560 (7th Cir. 2003); Kovilic Const. Co. v. Missbrenner, 106 F.3d 768, 771 (7th Cir. 1997). As discussed above, this Court reviews such issues for abuse of discretion.
Share this article: