US v. Truman Lewi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cr-00507-RMG-1 Copies to all parties and the district court/agency. [999581584].. [14-4241, 14-4242, 14-4648]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4241

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRUMAN LEVI LEWIS,
Defendant - Appellant.

No. 14-4242

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORMAN DEVI LEWIS,
Defendant - Appellant.

No. 14-4648

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

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TRUMAN LEVI LEWIS,
Defendant - Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Charleston.
Richard M. Gergel, District
Judge. (2:12-cr-00507-RMG-1; 2:12-cr-00507-RMG-3)

Submitted:

April 30, 2015

Decided:

May 12, 2015

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina; Louis H. Lang, CALLISON, TIGHE & ROBINSON, LLC,
Columbia, South Carolina, for Appellants.
William N. Nettles,
United States Attorney, James Hunter May, Winston Holliday,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Truman

health-care

Lewis

(“Truman”)

appeal

(“Norman”)

Levi

their

convictions

fraud,

in

violation

of

and
for
18

Norman

Devi

Lewis

to

commit

conspiracy
U.S.C.

§§

1347,

1349

(2012), four counts of wire fraud, in violation of 18 U.S.C.
§§ 1343,

1349,

2

(2012),

and

conspiracy

to

commit

money

laundering, in violation of 18 U.S.C. §§ 1956(h), 1957(a), 2,
(2012),

based

on

their

company’s

overbilling

Truman also appeals his 120-month sentence.

of

Medicaid.

Truman argues that

the district court erred by excluding a certain audio recording,
by finding the evidence sufficient to support his convictions,
by denying his motions for a new trial based on these issues,
and by enhancing his sentence for obstruction of justice based
on his trial testimony. *

Norman argues that the district court

∗

Counsel also purports to raise the following issues
pursuant to Anders v. California, 386 U.S. 738 (1967):
(1) whether the district court reversibly erred by denying
Truman’s motion to sever; (2) whether the district court erred
by denying Truman’s Fed. R. Crim. P. 29 motions because no
witness made an in-court identification of him; (3) whether the
district court erred by denying Truman’s motions for a new trial
based on the denial of the motion to sever, the denial of a
motion to suppress, a lack of adequate time to review the jury
panel, and ineffective assistance of counsel; (4) whether the
district
court
reversibly
erred
by
overruling
Truman’s
objections to the facts presented at sentencing, the loss
amount, and the leadership-role enhancement, and by ordering
restitution in the amount it did; (5) whether trial counsel was
ineffective; and (6) whether the district court reversibly erred
by denying Truman’s motion to stay forfeiture pending appeal.
(Continued)
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erred by failing to order a second competency evaluation and by
refusing to allow him to represent himself.

We affirm.

I.
Truman

first

argues

that

the

district

court

erred

by

refusing to admit an audio recording of a meeting at which he
reached
“We

an

review

administrative
a

trial

settlement

court’s

rulings

with
on

certain

the

officials.

admissibility

of

evidence for abuse of discretion, and we will only overturn an
evidentiary ruling that is arbitrary and irrational.”

United

States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011) (internal
quotation marks omitted).

To the extent Truman challenges the

district court’s ruling that the recording would not be admitted
in its entirety, we conclude that the district court did not
abuse its discretion because the recording contained numerous

Anders applies only when “counsel finds his case to be
wholly frivolous, after a conscientious examination of it.” 386
U.S. at 744 (emphasis added). Because Truman’s attorney is able
to raise nonfrivolous issues on appeal, Anders does not permit
her to brief frivolous issues simply because her client so
requests.
Cf. Jones v. Barnes, 463 U.S. 745, 750-51 (1983)
(holding that Anders does not mean that “appellate counsel must
raise every nonfrivolous issue requested by the client”). While
a defendant “has the ultimate authority to make certain
fundamental decisions regarding the case, as to whether to plead
guilty, waive a jury, testify in his or her own behalf, or take
an appeal,” the decision regarding which issues to raise on
appeal lies solely with the professional judgment of counsel.
Id. at 751.
Nevertheless, in an abundance of caution, we have
reviewed each of the issues purportedly submitted pursuant to
Anders and conclude that they are without merit.

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inadmissible

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hearsay

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statements

by

Truman.

Moreover,

the

district court allowed Truman to request permission to present
specific facts and statements from the recording.
fact

that

excluded

Truman
is

cites

the

fact

on

of

appeal

the

conclude that

the

district

irrationally

in

excluding

as

having

been

administrative

court

did

not

evidence

of

The only such
improperly

settlement.

act

arbitrarily

this

We
or

settlement,

especially in light of the court’s decision to allow Truman to
testify

regarding

the

general

nature

of

the

meeting.

Accordingly, Truman is entitled to no relief on his evidentiary
claim.
Next,
denying

Truman

his

Rule

argues
29

that

the

motions

district

because

there

court
was

erred

by

insufficient

evidence that he possessed the requisite criminal intent for his
offenses.

We review de novo the district court’s denial of a

Rule 29 motion.
Cir. 2015).

United States v. Reed, 780 F.3d 260, 269 (4th

Where, as here, the motion was based on a claim of

insufficient evidence, we will sustain the jury’s verdict “if
there is substantial evidence, taking the view most favorable to
the Government, to support it.”
U.S.

60,

80

(1942);

see

Reed,

Glasser v. United States, 315
780

F.3d

at

269-70

(defining

substantial evidence).
The

only

element

of

the

charged

offenses

contests on appeal is the intent requirement.
5

that

Truman

See United States

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Simpson,

elements

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741

of

F.3d

539,

conspiracy

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to

547,

550

commit

(5th

Cir.)

health-care

(discussing

fraud),

cert.

denied, 134 S. Ct. 2318 (2014); United States v. McLean, 715
F.3d

129,

137-38
offense

substantive
Wynn,

684

(4th
of

F.3d

473,

Cir.

2013)

health-care

477-78

(stating

fraud);

(4th

Cir.

elements

United

2012)

States

(setting

of
v.

forth

elements of wire fraud); United States v. Green, 599 F.3d 360,
371 (4th Cir. 2010) (providing elements of conspiracy to commit
money laundering).
the

ample

provide

Having reviewed the record, we conclude that

testimony

Medicaid

that

with

Truman

instructed

information

he

his

knew

employees

was

false

to
was

sufficient for the jury to infer that he intended to deceive
Medicaid and knew that these actions were criminal.
States

v.

Wilson,

115

F.3d

1185,

1189-90

(4th

Cir.

(discussing resolution of conflicting evidence).
the

district

court

did

not

err

in

denying

See United
1997)

Accordingly,

Truman’s

Rule

29

motions.
Truman also argues that the district court erred by denying
his

motions

for

aforementioned
evidence.

a

new

audio

Because

trial

based

recording
the

discretion

in

excluding

sufficient

to

convict

and

district
the

Truman

on
the
court

recording
of

the

the

exclusion

of

the

of

the

abuse

its

evidence

was

offenses,

the

sufficiency
did

and

not

the

charged

district court did not err in denying Truman’s motions for a new
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trial on these bases.

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See United States v. Bartko, 728 F.3d

327, 334 (4th Cir. 2013) (stating that appellate court reviews
denial of motion for new trial for abuse of discretion), cert.
denied, 134 S. Ct. 1043 (2014).
Finally, Truman argues that the district court erred by
applying
Sentencing
testimony

an

obstruction-of-justice

Guidelines
at

trial.

Manual
We

§ 3C1.1
review

enhancement for clear error.

enhancement
(2012),

the

under

based

imposition

U.S.

on
of

his
this

United States v. Hughes, 401 F.3d

540, 560 (4th Cir. 2005).

This enhancement is appropriate if

the defendant gave “false testimony concerning a material matter
with the willful intent to provide false testimony.”

United

States v. Dunnigan, 507 U.S. 87, 94 (1993); United States v.
Perez, 661 F.3d 189, 192-93 (4th Cir. 2011) (discussing “degree
of specificity Dunnigan requires”).
The district court found that Truman testified falsely that
he was unaware that his employees signed notes falsely stating
that they worked on weekends.

On appeal, Truman argues that his

testimony was not false because he admitted on cross-examination
that he was in charge of the company’s billing.

However, this

general admission does not remedy his prior testimony that he
was unaware of the deceptive notes.

Truman does not challenge

on appeal the district court’s findings that this testimony was
false,

material,

and

made

with
7

the

intent

to

provide

false

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Accordingly,

we

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discern

no

clear

error

in

the

application of the obstruction-of-justice enhancement.
II.
Norman
order

a

during

first

second
jury

challenges

competency

the

district

evaluation

selection.

In

court’s

based

determining

on

refusal

his

whether

to

behavior
there

is

reasonable cause to order a competency hearing, a trial court
must consider “evidence of irrational behavior, the defendant’s
demeanor

at

trial,

and

defendant’s competence.”

medical

opinions

concerning

the

United States v. Bernard, 708 F.3d

583, 592-93 (4th Cir.) (internal quotation marks omitted), cert.
denied, 134 S. Ct. 617 (2013).

The fact that an individual

possesses questionable beliefs about the law or makes frivolous
or

nonsensical

legal

arguments

competence to stand trial.

does

not

mean

that

he

lacks

United States v. Banks, 482 F.3d

733, 743 (4th Cir. 2007).
Norman’s psychological report indicated that, although he
had personality disorders and below-average intelligence, he was
competent to stand trial.
1286,

1290

persuasive
doubt

(4th

Cir.

evidence

exists

as

to

on

See United States v. Mason, 52 F.3d

1995)
the
the

quotation marks omitted)).

(“Medical
question

defendant’s

of

opinions
whether

are
a

competence.”

usually

sufficient
(internal

After observing Norman’s behavior,

the district court concluded that he was not delusional but was
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deliberately behaving obstructively.
consistent

with

Norman

Lewis’s

Because this finding was

behavior

and

psychological

report, we conclude that the district court did not abuse its
discretion

in

evaluation.

declining

to

conduct

a

second

competency

See Bernard, 708 F.3d at 589-90 (stating standard

of review).
Norman also argues that the district court erred by finding
him

incompetent

to

represent

himself.

The

Sixth

Amendment

guarantees not only the right to be represented by counsel but
also the right to self-representation.
422 U.S. 806, 819 (1975).
finds

the

defendant

Faretta v. California,

Where, as here, the district court

competent

to

stand

trial,

the

court

may

nevertheless find him incompetent to represent himself at trial
if a mental illness renders him “unable to carry out the basic
tasks needed to present his own defense without the help of
counsel.”

Bernard,

708

F.3d

at

589-90;

accord

Indiana

v.

Edwards, 554 U.S. 164, 175-76 (2008).
The

district

court

found

that,

although

Norman

was

competent to stand trial, his disordered thinking prevented him
from

personally

managing

evidence in this case.
Norman’s

refusal

to

the

large

amount

of

documentary

This finding was adequately supported by
review

the

documents

presented

by

the

Government or even acknowledge that they formed the evidence in
this case, by the psychological report indicating that he had a
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intelligence,

district court.
discretion
Edwards.

in

and

by

his

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demeanor

as

observed

by

the

Thus, the district court did not abuse its
terminating

Norman’s

self-representation

under

United States v. Barefoot, 754 F.3d 226, 233 (4th

Cir.) (stating standard of review), cert. denied, 135 S. Ct. 502
(2014).
III.
Because the claims raised on appeal do not warrant relief,
we affirm the judgments of the district court.

We dispense with

oral

legal

contentions

are

before

this

and

argument

adequately

because

presented

in

the
the

facts

and

materials

court

argument would not aid the decisional process.
AFFIRMED

10