Mortgage Elimination Scammers' Claim That Judge Erred By Failing To Assign Counsel After They Insisted On Self-Representation Falls On Deaf Ears

In San Francisco, California, The Oakland Tribune reports:

• A federal appeals court issued a stinging decision Tuesday upholding the convictions of a pair of Bay Area scam artists who made millions by claiming they could help people eliminate mortgage debts. Kurt Johnson, of Sunnyvale, and Dale Scott Heineman, of Union City, who operated the Dorean Group in Union City and Newark in from 2003 to 2005, were convicted in 2007 of one count each of conspiracy and 34 counts each of mail fraud. Johnson was sentenced in 2008 to 25 years in federal prison, Heineman to 21 years and eight months.

• "They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish," 9th U.S. Circuit Court of Appeals Judge Barry Silverman wrote in the ruling. "Both defendants were examined by a psychiatrist and found to have no diagnosable mental disorder."

• The trial judge held several days of hearings in which Johnson and Heineman were extensively advised of the risks of self-representation, Silverman noted. "The judge practically begged them to accept counsel, but they refused," he wrote. On appeal, they claimed the trial judge should have forced attorneys upon them because of what they described as their own "nonsensical" legal "antics" during the trial.(1)

***

• Prosecutors said Johnson and Heineman victimized at least 20 lenders and as many as 3,500 homeowners across 35 states with their idea that borrowers could ditch their mortgage debts through a legal and bureaucratic process. Homeowners first transferred their interest in their properties to a trust, naming Johnson and Heineman as trustees. The pair would then send demand notices to the lenders questioning the validity of their lending practices.

• When banks failed to respond or "prove" their lending practices were valid, the pair recorded bogus documents with county clerks' offices supposedly establishing that the homes were no longer under a mortgage. The homeowners then refinanced with different banks using their supposedly unencumbered homes as collateral.

For more, see Mortgage scam artists' convictions upheld.

For the court ruling, see USA v. Johnson, No. 08-10147, No. 08-10258 (9th Cir. July 6, 2010).

(1) Judge Silverman prefaced his ruling with the following observation about these characters (bold text is my emphasis, not in the original text):

• Defendants Kurt F. Johnson and Dale Scott Heineman were indicted for conspiracy and multiple counts of mail fraud related to their illegitimate debt-elimination business. They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish. Both defendants were examined by a psychiatrist and found to have no diagnosable mental disorder. Thereafter, the district court conducted Faretta hearings spanning several days in which the defendants were extensively advised of their right to counsel and the disadvantages of self-representation. The judge practically begged them to accept counsel but they refused. The district court found that the defendants were competent to represent themselves and that such was their constitutional right.

• Defendants now contend that Indiana v. Edwards, 554 U.S. 164 (2008), decided by the Supreme Court after their trial concluded, required the district court to terminate their self-representation because of what they describe as their “nonsensical” legal “antics” after the trial began. They say they may have been competent to stand trial but not to represent themselves.

• The record clearly shows that the defendants are fools, but that is not the same as being incompetent. Under both Faretta and Edwards, they had the right to represent themselves and go down in flames if they wished, a right the district court was required to respect.

• There was no legal or medical basis to foist a lawyer on them against their will. We also hold today that there was no basis for the recusal of the district judge nor error in any of the jury instructions.

Judge Silverman indicated in a footnote that a Faretta hearing (referring to the U.S. Supreme Court decision in Faretta v. California, 422 U.S. 806 (1975)) established that a defendant has the constitutional right to represent himself when he voluntarily and intelligently elects to do so.